In a recent case, the court of appeal held that a lis pendens was completely void and therefore subject to expungement because service was improper, absent undue delay in moving to expunge. Evidence that an agent for plaintiff contacted defendants to discuss the lis pendens 78 days before defendants moved to expunge did not establish undue delay that would justify denying expungement.
Defendants were sued for failure to perform on a written agreement to sell a certain parcel of real property to Plaintiff. The same day complaint was filed, Plaintiff recorded a lis pendens but failed to also record a proof of service of lis pendens.
In California, a notice of lis pendens gives constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice. Any taker of a subsequently created interest in that property takes his interest subject to the outcome of that litigation. If an action asserts a “real property claim,” any party to the action may record a lis pendens. (CCP § 405.20.)
A “court shall order” expungement of a lis pendens if the pleading on which the lis pendens is based does not state a real property claim, if the claimant fails to establish the probable validity of the claim on which the lis pendens is based, or if the giving of an undertaking would secure adequate relief to the claimant. (§§ 405.31, 405.32, 405.33.) A nonstatutory ground also exists, such that a party alleging a lis pendens is “void and invalid” (CCP § 405.23) for defective service may move for expungement on that basis.
California Code of Civil Procedure Section 405.23 reads in full: “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.” Section 405.22, in turn, requires the claimant filing a lis pendens to serve “the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll” by registered or certified mail, return receipt requested, at all known addresses. If the county assessor lacks a known address for a party or owner, the claimant may file a declaration to that effect in lieu of the mailing that would otherwise be required. (§ 405.22) Section 405.22 further provides: “Service shall also be made immediately and in the same manner upon each adverse party later joined in the action.”
The Court concluded that Petitioner, who alleged to be the true owner of the Property, has shown the lis pendens was “void and invalid” as to it. (CCP § 405.23.) First, no proof of service was recorded with the lis pendens. Second, noncompliance with section 405.22 occurred because, once petitioner became a party to the action, service “in the same manner” as section 405.22 prescribes when a lis pendens is first recorded was not “made immediately” on petitioner.
See Rey Sanchez Investments v. Superior Court (PCH Enterprises, Inc.) – filed January 6, 2016, publication ordered Jan. 26, 2016, Fourth District, Div. Two
