Parker v. Superior Court

Opinion

GARDNER, P. J.

Petitioner, Larry B. Parker, asks for a writ of mandamus directing the trial court to order the expungement of a lis pendens. (Code Civ. Proc., §§ 409.1, subd. (a), 409.4)

Charles Dwight sued Sally M. Dwight for divorce. The complaint set forth six causes of action, including breach of a property settlement agreement, fraud and quiet title. One of the parcels of property in contention was a leasehold interest in a lot in Palm Springs. Upon filing the complaint, Charles Dwight recorded a lis pendens on this property. Larry B. Parker purchased the real property after the filing of the lis pendens and filed in

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the superior court a motion to expunge the lis pendens. The court denied the motion.

The sole question presented is may a lis pendens be properly filed on a leasehold interest for years on real property?

A lis pendens may be filed in an action “concerning real property or affecting the title or the right of possession of real property.” (Code Civ. Proc., § 409.) The filing of a lis pendens is ineffective if the action is one concerning personal property.

(MacDermot

v.

Hayes,

175 Cal. 95 [170 P. 616].)

Petitioner contends that since an estate for years is personal property, that the filing of a lis pendens was improper and subject to expungement. (See Civ. Code, § 765;

Dabney

v.

Edwards,

5 Cal.2d 1 [53 P.2d 962, 103 A.L.R. 822];

Callahan

v.

Martin,

3 Cal.2d 110 [43 P.2d 788, 101 A.L.R. 871];