Our lis pendens statute is in derogation of the common law. "Historically, the American statutes providing for recording of a notice of pendency of an action affecting title to or possession of real property were designed to limit, rather than to expand, the common law doctrine of constructive notice." ( Allied Eastern Financial v. Goheen Enterprises (1968) 265 Cal.App.2d 131, 132 [ 71 Cal.Rptr. 126].) (3) The history of the lis pendens legislation indicates a legislative intent to restrict rather than broaden the application of the remedy.
There is no limitation concerning which federal litigants may file lis pendens notices pursuant to the California statute. In Allied Eastern Financial v. Goheen Enterprises, 265 Cal.App.2d 131, 71 Cal.Rptr. 126 (Cal.App. 1968), the California Court of Appeals commented upon an amendment to the California lis pendens statute providing for the recordation of notice of pending federal actions. As the Allied court stated: In 1959, the California legislature amended the lis pendens statute.
The purpose was to prevent frustration of jurisdiction by transfers pendente lite." ( Allied Eastern Financial v. Goheen Enterprises (1968) 265 Cal.App.2d 131, 132 [ 71 Cal.Rptr. 126].) Similarly, as the court in Newman v. Chapman (1823) 23 Va. 93, stated, "Without [the common law doctrine of lis pendens], the administration of justice might, in all cases, be frustrated by successive alienations of the property, which was the object of litigation, pending the suit, so that every judgment and decree would be rendered abortive, where the recovery of specific property was the object."
" ( Id., at p. 817.) (See also MacDermot v. Hayes (1917) 175 Cal. 95, 110 [ 170 P. 616] [lis pendens in action to set aside sale of stock ineffective to give constructive notice]; Allied Eastern Financial v. Goheen Enterprises (1968) 265 Cal.App.2d 131, 134 [ 71 Cal.Rptr. 126] [lis pendens in action on loan "would have no legal effect"].) 2.
At common law the mere existence of a lawsuit affecting real property was considered to impart constructive notice that anyone who acquired an interest in the property after the suit was filed would be bound by any judgment in that suit. ( Allied Eastern Financial v. Goheen Enterprises (1968) 265 Cal.App.2d 131, 132 [ 71 Cal.Rptr. 126].) (3) To ameliorate the harsh effect of the common law rule, Legislatures enacted lis pendens statutes to limit the constructive knowledge of pending claims to those instances where a notice of lis pendens was recorded.
Under our existing statutory scheme, a lawsuit which does not affect real property cannot support the filing of a lis pendens. (See Allied Eastern Financial v. Goheen Enterprises (1968) 265 Cal.App.2d 131 [ 71 Cal.Rptr. 126] .) In Allied Eastern the plaintiff entered into a contract to secure a loan to finance proposed improvement of defendant's land, then sued defendant for an alleged breach of the contract. Plaintiff recorded a lis pendens against defendant's property.
) In 1959, the section was amended to the present language making a lis pendens appropriate "[i]n an action concerning real property or affecting the title or the right of possession of real property. . . ." (Stats. 1959, ch. 382, p. 2306, § 1; see Allied Eastern Financial v. Goheen Enterprises (1968) 265 Cal.App.2d 131, 132-133 [ 71 Cal.Rptr. 126].)
(3) When sections 409 and 409.1 are read together, the clear implication is that the phrase "concerning real property" should be construed as having the same meaning as the words "affecting the title or the right of possession of real property." (See Allied Eastern Financial v. Goheen Enterprises, 265 Cal.App.2d 131 [ 71 Cal.Rptr. 126].) Indeed, any other interpretation would be contrary to the ordinary rules of statutory construction.
Similarly, it has been held that a lis pendens is improper in an action for money damages only even though the action was based on a contract to secure a loan to finance proposed improvements on described real property. ( Allied Eastern Financial v. Goheen Enterprises, 265 Cal.App.2d 131 [ 71 Cal.Rptr. 126].) Obviously, none of the above cases involve the right of possession of real property.
An action for money damages alone will not support a lis pendens. Urez Corp. v. Superior Court, 190 Cal. App. 3d 1141, 1145 (1987) (citing Allied E. Fin. v. Goheen Enter., 265 Cal. App. 2d 131, 133-34 (1968)). 3.