Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. L.A.S.C. No. BC389255, Terry A. Green, Judge.
Katten Muchin Rosenman, Joshua D. Wayser and Yuval M. Rogson for Petitioner.
No appearance for Respondent.
Wendy Huang; Hodel Briggs Winter, Matthew A. Hodel and Michael S. LeBoff for Real Party in Interest.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
The trial court erred when it denied Glendale Tower Partners, L.P.’s motion to expunge the lis pendens because Crown Central Associates, LLC did not serve Glendale Tower Partners L.P. in compliance with the technical requirements of Code of Civil Procedure section 405.22. Accordingly, the petition is granted.
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2007, Glendale Tower Partners, L.P. (Glendale) and CRD Associates, LLC (CRD) entered into a Purchase and Sale Agreement (Agreement) for property located at 306-308 North Central Avenue and 217 West California Avenue in Glendale (Property). Pursuant to the Agreement, CRD—the predecessor in interest to Crown Central Associates, LLC (Crown Central)—agreed to purchase the Property from Glendale for $8,700.000.
The Agreement was initially scheduled to close on January 15, 2008. CRD extended the closing date by claiming purported title deficiencies. CRD’s final extension made it so that the Agreement was scheduled to close on April 17, 2008.
On April 1, 2008, CRD assigned its right to purchase the property to Crown Central.
On April 16, 2008, a day before the Agreement was scheduled to close, CRD sent a letter to Glendale on behalf of Crown Central asserting that it was “suspending future performance” under the Agreement until Glendale “cure[s]” purported title and record defects of the Property. CRD also informed Glendale that it had assigned its purported right to the Property to Crown Central.
On April 17, 2008, Crown Central filed its complaint against Glendale asserting causes of action for specific performance of the Agreement, declaratory relief, and breach of contract. On April 17, 2008, Crown Central recorded its lis pendens against the Property and served it with the summons and complaint.
On June 6, 2008 Glendale moved to expunge the lis pendens. Glendale maintained that the lis pendens was void pursuant to Code of Civil Procedure section 405.23, because it was not served, with proof of service by registered or certified mail, return receipt requested, as required by section 405.22.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
On August 1, 2008, the trial court heard oral argument and denied Glendale’s motion to expunge.
DISCUSSION
“When a party moves to expunge lis pendens, . . . the burden is upon the recording party to demonstrate by a preponderance of evidence that the action was commenced and prosecuted for a proper purpose and in good faith. [Citations.]” (McNight v. Superior Court (1985) 170 Cal.App.3d 291, 298.)
The trial court erred when it failed to grant the motion to expunge because Crown Central did not serve Glendale in compliance with the technical requirements of section 405.22. Crown Central concedes it did not serve Glendale by registered or certified mail, return receipt requested.
Section 405.22 sets forth the statutory service requirements for a lis pendens: “Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of 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.”
Strict compliance with section 405.22 is mandated by section 405.23, which provides: “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.”
McNight v. Superior Court, supra, 170 Cal.App.3d 291 is the controlling case law. In McNight, Division Four affirmed an order of the trial court expunging plaintiff’s lis pendens. (Id. at p. 303.) The defendant argued that the trial court’s order should be affirmed because plaintiff had (1) commenced the action in bad faith, and (2) failed to comply with the filing and service requirements for a lis pendens. (Id. at p. 295.) Division Four found that the record did not support the conclusion that plaintiff had commenced the action in bad faith (Ibid.), but Division Four affirmed the trial court’s order based solely on the plaintiff’s failure to comply with the “technical” statutory service requirements for a lis pendens: “We conclude the record does not contain sufficient evidence to support a finding that plaintiff commenced his action in bad faith but that failure to comply with subdivisions (c) and (d) of section 409 justifies expungement.” (Id. at p. 295, 305.) Division Four further stated: “While the expungement order here is therefore valid, it does not preclude plaintiff from refiling a notice of lis pendens which will comply with all of the requirements of section 409.” (Id. at p. 303.)
Sections 409 (c) and 409 (d) were precursors to sections 405.22 and 405.23.
The trial court should have granted the motion to expunge based on Crown Central’s failure to meet the requirements of section 405.22 service (McNight v. Superior Court, supra, 170 Cal.App.3d 291.).
This Court declines to entertain Crown Central’s request that it be granted leave to re-record the lis pendens. That is a matter for the trial court. (§ 405.36.)
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of August 1, 2008, denying Glendale’s motion to expunge lis pendens, and to issue a new and different order granting same, in Los Angeles Superior Court case No. BC389255, entitled Crown Central Associates, LLC v. Glendale Tower Partners, L.P.
All parties shall bear their own costs.
THE COURT:
MALLANO, P. J. ROTHSCHILD, J.