King v. Sup. Ct.

Filed 7/18/07 King v. Sup. Ct. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Midland Pacific Building Corporation (Midland) entered into a contract with John E. and Carole D. King (the Kings) to purchase 27 acres of land owned by the Kings. The contract requires the Kings to obtain approval of a specific plan and vesting tentative tract map that would enable Midland to build a specified number of single family residences on the land.

The Kings submitted a different tentative tract map to the city which provided for a larger number of housing units. The Kings claim this was necessary to conform to amendments to the city's general plan. Midland filed suit. It seeks damages for breach of contract and fraud and an injunction to stop the owners from processing any map that is not in compliance with an earlier draft map. It also seeks specific performance of the map it had desired, and a judicial declaration that a higher density map would not conform to the previous tract map. At the same time, Midland placed a lis pendens on the property.

The Kings petition this court for a writ of mandate challenging the trial court's denial of their motion to expunge the lis pendens filed by real party in interest, Midland.[1] We issued an alternative writ and the trial court did not issue a new order. Consequently, we placed the matter on calendar.

The complaint does not challenge title to the property. Therefore the lis pendens must be expunged. The instant suit seeks monetary damages for breach of contract and fraud. It also seeks declaratory relief and specific performance, but only regarding the processing of maps that conform to its development plans. The suit also seeks an injunction precluding the Kings from processing a map that does not conform to the map desired by Midland. But, the suit does not question whether the Kings own or possess the property.

Accordingly, we grant the writ petition and direct the trial court to vacate its order denying the motion to expunge the lis pendens and enter a new and different order expunging the lis pendens.

DISCUSSION

Standard of Review

We review factual findings under the substantial evidence rule, and independently assess legal questions, such as the meaning of contractual terms and statutory language. (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 320.) We also independently review mixed questions of fact and law. (See generally Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.)

"'"The fundamental rule of statutory construction is to ascertain the intent of the Legislature in order to effectuate the purpose of the law. . . ." . . .'" (Luckett v. Keylee (2007) 147 Cal.App.4th 919, 925.) We look first at the words of the statutes, giving effect to their usual and ordinary meaning. (Ibid.) We construe the words of statutes in context, and do not render any of them to be surplusage. (Ibid.)

We independently interpret contract provisions by giving effect to the mutual intention of the parties at the time they contracted, as shown by the plain, usual meaning of the words used. (Civ. Code,  1636, 1638, 1639, 1644; Code Civ. Proc.,  1856-1862; Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 957; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.) We consider the contract as a whole and give effect to every part, as is reasonably practicable. (Civ. Code,  1641.)

Lis Pendens Requires a Real Property Claim

"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, 405.1.) The notice referred to in section 405.20, above, is called a lis pendens. A "real property claim" is a cause of action that either affects title to, or the right to possession of, specific real property. (Code Civ. Proc.,  405.4; Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 651; Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1395.)

Whether a complaint alleges a "real property claim" so as to justify placing a lis pendens on the property is a question of law. (See BGJ Associates v. Superior Court (1999) 75 Cal.App.4th 952, 970.) In proceedings to place a lis pendens on property, the claimant has the burden of proof by a preponderance of the evidence. (Code Civ. Proc., 405.30, 405.32.) Because a lis pendens renders real property unmarketable, and has been misused to coerce settlements, the right to maintain it has been narrowly circumscribed in recent years. (BGJ Associates, supra, at pp. 966-967, 969; Mix v. Superior Court (2004) 124 Cal.App.4th 987, 993; Gale v. Superior Court, supra, 122 Cal.App.4th at pp. 1394-1395; and see generally Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 912-915.)

The trial court must order the lis pendens expunged if it finds that the underlying suit does not contain a real property claim. (Code Civ. Proc.,  405.31; Kirkeby v. Superior Court, supra, 33 Cal.4th at pp. 647-648.) In analyzing whether an action actually affects title or possession to the real property at issue, courts consider the nature of the dispute. (BGJ Associates v. Superior Court, supra, 75 Cal.App.4th at p. 970.) A buyer's action for specific performance of a real property purchase and sale agreement is the prototypical example of an action for which a lis pendens is appropriate and necessary. (Id., at p. 967.) An action that is essentially one for damages, an equitable lien, or a constructive trust will not support a lis pendens, even if it relates to a specific parcel of real property. (Id., at pp. 967-968, 970, 972; and see Campbell v. Superior Court, supra, 132 Cal.App.4th at p. 919 [equitable liens]; cf. Stewart Development Co. v. Superior Court (1980) 108 Cal.App.3d 266 [specific performance cause re: sale of commercial property for development, suggesting that an undertaking should be provided].)

None of the allegations in Midland's complaint questions who holds title or possession to the property. The Kings hold title and possession to the property, although it is subject to a recorded loan from a third party with a subordination agreement in favor of Midland. Thus, the complaint does not state a real property claim. (Kirkeby v. Superior Court, supra, 33 Cal.4th at pp. 647-648 [calling for limited analysis of whether pleading states real property claim].)

DISPOSITION

Because the complaint does not question who owns or possesses the property, it does not state a real property claim. The lis pendens must be expunged. (Code Civ. Proc.,  405.31; Kirkeby v. Superior Court, supra, 33 Cal.4th at pp. 647-648; Campbell v. Superior Court, supra, 132 Cal.App.4th at p. 911.)

Accordingly, we grant the petition and direct the trial court to vacate its order denying the motion to expunge the lis pendens and enter a new and different order expunging the lis pendens. Costs to the Kings.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Roger T. Picquet, Judge

Superior Court County of San Luis Obispo

______________________________

Manatt, Phelps & Phillips, LLP, Michael M. Berger, Lara M. Krieger; William S. Walter for Petitioners.

No appearance for Respondent.

Adamski Moroski Madden & Green LLP, Thomas D. Green, Raymond A. Biering, Carol A. Kingery; Brown, Winfield & Canzoneri, Inc., Thomas F. Winfield III, Diana J. Vernazza for Real Party in Interest.

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[1]There is a concurrent appeal that challenges the denial of a motion under SLAPP. (Code Civ. Proc.,  425.16 et seq.) See appeal numbered B192017.