Sheets v. Superior Court

Opinion

Roth, P. J.

Proceeding in mandate to require respondent court to vacate an order denying petitioners’ motion to expunge a lis pendens and enter a new and different order granting said motion. We granted an alternative writ.

Facts

In January 1977, petitioners (Sheets) and real party (Devcorp) entered into a written option agreement by which Devcorp was granted an exclusive option to purchase certain real property uniquely appropriate if permitted by zoning for supermarket development consisting of 10.4 acres, more or less, for the sum of $334,000. Petitioner knew that Devcorp desired the property for supermarket development. The option was to be exercised on or before midnight, May 31, 1977, and contained certain provisions for extension of the option by written notice ($8.1 and $2.4) and upon the payment of specified consideration ($3.2). There was also a provision for automatic termination of the option ($2.5). Paragraph 2.5 incorporated paragraph 2.4 which in turn incorporated paragraph 8.1.

Devcorp made two payments for extension of the option, one in June and one in July. When the notice and payments fell due in August, however, an agent of Devcorp allegedly called Sheets and requested an extension of time until “after” a city council meeting which was to deal with zoning questions. Devcorp now contends that an extension was granted (although one of the coowners was not contacted by Devcorp) while Sheets contends that no extension was granted. In any event, the notice and payment were not tendered by Devcorp to Sheets until August 5, 1978. At this point Sheets refused the tender and all subsequent tenders.

[70]

Devcorp filed an action for specific performance and a lis pendens, alleging that it had, with petitioner’s knowledge, expended substantial sums of money to investigate the development of a shopping center on the property, that it wants the land itself and not damages, that it has validly exercised the option, and that it is ready, willing and able to perform its side of the land sale agreement.

Sheets filed a motion for summary judgment and a motion to expunge the lis pendens, offering to file an undertaking in such amount as should be determined by the court. Both the motion for summary judgment and the motion to expunge the lis pendens were denied. Sheets then filed this petition to require the superior court to expunge the lis pendens, arguing that, pending trial on the merits, he must pay all carrying costs, he is unable to sell the property, and the value of the property may decrease in the event zoning changes are made in the meantime.