Biddle v. Superior Court

Opinion

WALLIN, J. Petitioners W. Scott Biddle and Edward D. Lohrbach seek a writ of mandate compelling the trial court to set aside its order expunging the lis pendens recorded against the Paulson’s real property. The question presented is whether the trial court abused its discretion by expunging a lis pendens for a technical defect in service, although the property owners had actual notice and had failed to raise the defect in two prior motions to expunge.

Petitioners filed a complaint in superior court against William and Frances Paulson to recover payment on a note and to impose a constructive trust on [137]certain real property they had sold to the Paulsons. At the same time they recorded a lis pendens against the real property and mailed a copy to the Paulsons at their business address by first class mail. A copy was not sent to their residence nor was it mailed return receipt requested.

Within five days after notice was mailed, the Paulsons filed a motion to expunge the lis pendens under section 409.1 of the Code of Civil Procedure, which was subsequently denied. One week later, the Paulsons made a second motion to expunge, this time under Code of Civil Procedure section 409.2. The motion to expunge was granted on the condition the Paulsons post a $100,000 bond. They never did.

Thereafter, the Paulsons quitclaimed their entire interest in the property to Franland, Incorporated. Several months later, William, as president of Franland, again quitclaimed the property in exchange for stock, to Aceland, Incorporated. At that time, William, as president of “Aceland, Incorporated, aka Franland, Incorporated” filed a voluntary petition in bankruptcy. The corporation’s only listed asset is the subject property.

A year after the lis pendens was recorded, the Paulsons brought yet a third motion to expunge, this time alleging petitioners had not complied with the notice and service requirements of what is now Code of Civil Procedure section 409 subdivision (c)1 by failing to send notice to their residence and to request a return receipt. On that basis, the trial court granted the motion to expunge.

The Paulsons rely on the following language of subdivision (d): “Any notice of the pendency of the action . . . shall be void and invalid as to any adverse party or owner of record, unless the requirements of subdivision (c) are met . . . .” Subdivision (c) requires the person recording the lis peiidens to serve a copy of the notice by first class mail, return receipt requested and mail the notice to all known addresses of adverse parties and owners of record. Hence, they claim the trial court properly expunged a lis pendens which by statute was void and invalid. Their argument ignores both the obvious purpose of the statute and their delay in raising the defect.