Opinion
B169357.
11-7-2003
GARY SCOTT KEY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; DIETER TRATTMANN, Real Party in Interest.
Garrison Key, in pro. per. No appearance for Respondent. No appearance for Real Party in Interest.
Defendant Gary Scott Key seeks a writ of mandate after the trial court denied his motion to expunge a lis pendens on a property over which plaintiff Dieter Trattmann claims a constructive trust or equitable lien. We conclude the trial court erred in denying Keys motion because such equitable remedies cannot support a lis pendens. Accordingly, we grant the petition.
FACTUAL AND PROCEDURAL HISTORY
Trattmann filed this action in July 2002. The second amended and operative complaint (hereafter the complaint), was filed in December 2002 and names Key and two entities with which he is associated (Garrison Key, Inc., and Key Properties) as defendants.
According to the complaint, which contains 17 causes of action, Trattmann was the sole legal owner of 11 properties located in Los Angeles and Santa Barbara Counties. One or both of the entities associated with Key managed the properties for Trattmann. In the complaint, Trattmann claims that, before departing on an overseas trip, he signed grant deeds conveying some of these properties to Key, which Key recorded, even though he was supposed to do so only in case of Trattmanns death. In addition, Trattmann claims Key improperly took proceeds derived from Trattmanns properties.
The 12th cause of action seeks imposition of a constructive trust over the 11 listed properties and "over any monies traceable to Plaintiffs funds and [p]roperties." Similarly, the 14th cause of action seeks creation and foreclosure of an equitable lien "upon all [p]roperties described in this Complaint, and upon all funds and property, real or personal, traceable to such properties or the funds wrongfully converted by Defendant."
In June of this year, Trattmann filed a notice of lis pendens against a San Diego condominium owned by Key. The San Diego condominium is not mentioned anywhere in the complaint.
Key filed a motion to expunge the lis pendens on the ground that the action does not assert a "real property claim" with respect to the San Diego property. He based his motion on the fact that the San Diego property is not mentioned in the complaint and on cases (discussed below) holding that allegations of equitable remedies such as a constructive trust cannot support a lis pendens.
Trattmann filed an opposition, claiming the 12th, 13th and 14th causes of action are real property claims that can support the lis pendens.[]
The 12th and 14th causes of action were discussed above. The 13th cause of action is denominated resulting trust and seeks "an order that Defendants hold all the [p]roperties described in this complaint as trustee of a resulting trust for the benefit of Plaintiff . . . ." On its face, this cause of action concerns only the 11 properties that are mentioned in the complaint and has nothing even remotely to do with the San Diego property. Accordingly, we focus only on the 12th and 14 causes of action.
The trial court heard argument and denied the motion. Its minute order stated: "The Court finds that under the Plaintiffs 12th, 13th and 14th Causes of Action and the unique facts of this case that the title to the above referenced San Diego property is involved in this case." The court then cited two cases — Coppinger v. Superior Court (1982) 134 Cal.App.3d 883 (Coppinger), and Okuda v. Superior Court (1983) 144 Cal.App.3d 135 (Okuda).
Key filed this writ petition challenging the trial courts order. We notified the parties of our intention to issue a peremptory writ of mandate in the first instance directing the trial court to vacate its order denying Keys motion to expunge the lis pendens on the San Diego property and to thereafter make a new and different order granting the motion. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) We also invited plenary opposition to the petition from Trattmann. However, we have received no opposition.
DISCUSSION
"A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged." (Code Civ. Proc., § 405.20.)[] A court is required to expunge a lis pendens if the court finds "the pleading on which the notice is based does not contain a real property claim." (§ 405.31.)
All statutory references are to the Code of Civil Procedure.
"`Real property claim means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement . . . ." (§ 405.4.)
Whether a complaint contains a real property claim involves a "demurrer-like review." (BGJ Associates v. Superior Court (1999) 75 Cal.App.4th 952, 957-958 (BGJ Associates).) Consequently, the trial courts ruling on this question is reviewed de novo. (Id. at p. 970.)
In opposing Keys motion, Trattmann claimed that although the San Diego property is not even mentioned in his complaint, several causes of action in the complaint which seek equitable remedies for Keys alleged improper conversion of Trattmanns property and funds can support a lis pendens. Numerous cases, however, hold that such equitable claims will not sustain a lis pendens. (E.g., BGJ Associates, supra, 75 Cal.App.4th 952; Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149; Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1859; Wardley Development Inc. v. Superior Court (1989) 213 Cal.App.3d 391; Elder v. Carlisle Ins. Co. (1987) 193 Cal.App.3d 1313, 1320, fn. 8.)
In denying Keys motion, the trial court cited two decisions, both from the early 1980s and both by Division Two of the Fourth Appellate District. (Coppinger, supra, 134 Cal.App.3d at p. 891; Okuda, supra, 144 Cal.App.3d at p. 141.) Subsequent cases, however, have distinguished, limited or rejected Coppinger and Okuda. (See BGJ Associates, supra, 75 Cal.App.4th at pp. 967-970; Hunting World, Inc. v. Superior Court (1994) 22 Cal.App.4th 67, 71-72.) As Division Four of this appellate district explained in one of the cases rejecting the Fourth District opinions, "[t]he history of lis pendens legislation shows a legislative intent to restrict the common law notion of constructive notice. This is because of the ease with which a lis pendens can be recorded and the serious consequences flowing from it. Once a lis pendens is filed, it clouds the title and effectively prevents the propertys transfer until the litigation is resolved or the lis pendens is expunged. Accordingly, lis pendens is a provisional remedy which should be applied narrowly." (BGJ Associates, supra, 75 Cal.App.4th at pp. 966-967.) "[I]n approaching the constructive trust cases, the courts have `consistently eschewed an approach which would `transform [lis pendens] into a money-collection remedy without any of the protections of the attachment statutes. [Citation.] `Overbroad definition of "an action . . . affecting the title or the right of possession of real property" would invite abuse of lis pendens. [Citation.] For such reasons, . . . lis pendens is not available in what `is essentially a fraud action seeking money damages with additional allegations urged to support the equitable remedies of a constructive trust or an equitable lien." (Id. at pp. 969-970, first brackets and first ellipses in original.)
Although Trattman filed no brief here, he did oppose the motion to expunge below. His only legal authority for opposing the motion was Beckman v. Mayhew (1975) 49 Cal.App.3d 529, 534. Beckman was a dispute between two people who lived together but were not married, dealt with one of the parties rights to accumulated assets, and does not address the law of lis pendens at all. It provides no support for Trattmans position here.
Because we are persuaded by the correctness of decisions in BGJ Associates and other cases cited above, we adopt their reasoning. Under the circumstances, the trial court was required to grant Keys motion to expunge the lis pendens. (Code Civ. Proc., § 405.31.)
DISPOSITION
The petition for writ of mandate is granted. The respondent court is directed to vacate its order of July 31, 2003, denying petitioners motion to expunge the lis pendens on the San Diego property, and to thereafter make a new and different order granting the motion.[] Petitioner is entitled to recover his costs in this writ proceeding. (Cal. Rules of Court, rule 56.4.)
In the petition, petitioner asks for an award of attorneys fees incurred in bringing the motion to expunge the lis pendens in the trial court and the petition in this court. (See § 405.38 ["The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorneys fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorneys fees and costs unjust"].) In light of the discretionary factors to be considered in determining whether such an award is appropriate, we believe petitioners request should be addressed initially to the trial court. We offer no opinion on the propriety of an attorneys fees award in this case, including whether petitioners pro per status precludes an award of such fees.
We concur, COOPER, P.J. and BOLAND, J.