Coppinger v. Superior Court

• Decision Date: 10 August 1982
• Citation: Coppinger v. Superior Court, 134 Cal.App.3d 883, 185 Cal.Rptr. 24 (Cal. App. 1982)
• Court: California Court of Appeals
• Parties: Diana COPPINGER and Donald Coppinger, Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, Diane J. McKAY, Real Party in Interest. Civ. 27814.

Page 24

185 Cal.Rptr. 24

134 Cal.App.3d 883

Diana COPPINGER and Donald Coppinger, Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent Diane J. McKAY, Real Party in Interest.

Civ. 27814.

Court of Appeal, Fourth District, Division 2, California.

Aug. 10, 1982.

Callahan, McCune & Willis, Marnie A. Real, Tustin, and Charles F. Campbell, San Diego, for petitioners.

John W. Dumas, Santa Ana, for real party in interest.

No appearance for respondent.

OPINION

TROTTER, Associate Justice.

Diana and Donald Coppinger seek review by writ of mandate of an order denying their motion to expunge a notice of lis pendens recorded by Diane McKay. ¹ (See Code Civ.Proc., § 409.4.) For convenience, the Coppingers are referred to as defendants rather than petitioners and real party in interest McKay is referred to as plaintiff.

Plaintiff has not made a return to the petition, but a writ petition "cannot be granted by default." (Code Civ.Proc., § 1088.) In the absence of a return, all proper allegations of the petition are deemed admitted and only legal issues remain for decision. (Code Civ.Proc., § 1094. See Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 526-527, 102 Cal.Rptr. 45.) Plaintiff has submitted points and authorities addressing the legal issues.

In 1980 defendants were the owners of a one-story stucco frame residence at 16 Longstreet in Irvine, built within the preceding three years by Warmington Development, Inc. In June 1980, a termite inspection disclosed that termites were entering the wall between the living and dining rooms by a crack in the concrete slab. The infestation was treated by drilling through the slab and injecting chemicals into the soil beneath.

In July 1980, defendants agreed to sell the property to plaintiff for $152,000 and escrow was opened. Sandy Monahan, working under the broker's license of Aesop, Inc., made the sale. Escrow closed in September and plaintiff took possession. Defendants used the proceeds of sale to purchase a residence at 7 Chattanooga in Irvine.

In February 1981, plaintiff discovered termites on the interior walls in the living room, bathroom, and hallway. An inspection revealed additional cracks in the foundation, through which termites were travelling in large numbers.

In December 1981, plaintiff brought an action framed in five counts. Four counts of the verified complaint were against Warmington Development, Inc., on theories of negligence, breach of implied warranty, strict liability, and nuisance. The fifth count alleged that defendants knew the termite infestation was likely to recur in nontreated areas of the residence, that plaintiff was given no information about the termite problem until shortly before close of escrow, and that plaintiff was told by Sandy Monahan, the real estate salesman, that the problem had been completely corrected and the entire residence was guaranteed against termites for one year. These statements were false because the treatment and guarantee applied only to a small area of the residence. Plaintiff alleged that Monahan was acting as defendants' agent when he made the false statements, that the statements were intended to induce reliance, and that plaintiff would not have purchased the residence had she known the true facts. Plaintiff requested compensatory and punitive damages against Warmington and against defendants or, in the alternative, rescission of the sale and imposition of a constructive trust on defendants' property on Chattanooga.

On the day after the filing of the complaint, plaintiff had a notice of lis pendens recorded against the Chattanooga property. Defendants brought a motion to expunge the lis pendens, supported by a declaration of defendant Donald Coppinger, in which he denied discussing the termite report with plaintiff, denied knowledge of the extent of the termite damage or the probability of its recurrence, and stated that the lis pendens was preventing him from completing a sale of the Chattanooga property essential to an impending relocation of his family. Defendants also submitted a copy of a letter allegedly sent to them by plaintiff's attorney offering to settle the dispute for $1,947. Plaintiff filed points and authorities in opposition but did not submit declarations or other evidence. The motion to expunge was denied.

Defendants contend that the court was required to grant the expungement motion because plaintiff failed to meet her burden of proving that the action affects title to or the right to possession of real property and that plaintiff commenced the action for a proper purpose and in good faith.

Code of Civil Procedure section 409.1, which authorizes a motion to expunge a lis pendens, was enacted in 1968 to curb serious abuses. The original statute required the party seeking expungement to prove by clear and convincing proof that the action had been commenced for an improper purpose and not in good faith, but it was amended in 1976 to place the burden of proof on the party recording the lis pendens. Now that party, usually the plaintiff, must establish by a preponderance of the evidence that the action has been commenced for a proper purpose and in good faith. The party must also establish that the action affects title to or the right of possession of the real property described in the notice.

Defendants contend that plaintiff was required to produce some evidence to discharge her burden of proof. They maintain that the court was required to grant the motion to expunge because plaintiff failed to submit any declaration or other evidence. Plaintiff, on the other hand, maintains that she could and did rely on her verified complaint to discharge her burden of producing evidence.

A plaintiff may rely on a verified complaint to support an application for preliminary injunction. (Code Civ.Proc., § 527; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 532, 67 Cal.Rptr. 761, 439 P.2d 889.) However, a party's own verified pleading may not be used as evidence for or against a summary judgment motion. (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181, 89 Cal.Rptr. 737, 474 P.2d 689.) Whether a party's own verified pleading may be used to oppose a motion to expunge a lis pendens is a question which has not been expressly decided.

In Malcolm v. Superior Court, supra, 29 Cal.3d 518, 174 Cal.Rptr. 694, 629 P.2d 495, the defendants maintained that the trial court erred in denying their expungement motion, arguing that their declarations established that the action lacked merit. Our Supreme Court rejected the contention, stating: "[T]he propriety of expungement does not depend upon the likely outcome of plaintiff's lawsuit, but rather upon the plaintiff's state of mind or motive in filing or prosecuting the action. [Citations.] ... Because the question of a person's motive in filing a lawsuit relates primarily to his subjective state of mind, the issues of proper purpose and good faith must often be determined by inference from a variety of circumstantial evidence and we recognize that in some instances the patent lack of merit of a lawsuit may strongly suggest that the plaintiff has not filed the action for a proper purpose or in good faith.... [I]f a plaintiff in response to a motion to expunge fails to present by affidavit or other means even a 'prima facie' case on the merits of his claim, a trial court could appropriately conclude that the plaintiff has failed to meet his burden to demonstrate that the action is being prosecuted with the requisite good faith. Moreover, even when such a prima facie case is presented, if the party seeking expungement introduces evidence of the plaintiff's bad faith or improper purpose independent of the alleged weakness of the plaintiff's case, a trial court may properly consider the evidence relating to the merits of the action in determining whether or not to credit the independent evidence of bad faith. [p] On the other hand, however, when--as in the instant case--a plaintiff has filed a verified complaint and a verified declaration stating that the action has been brought for a proper purpose and in good faith and setting forth a prima facie case in support of the action, we do not believe that a defendant may rebut the plaintiff's showing simply by presenting counteraffidavits which controvert the plaintiff's evidence and raise triable issues of fact on the merits of the case.... If there is no independent evidence of bad faith or improper purpose, we conclude that section 409.1 does not contemplate the expungement of the lis pendens in such a situation." (Malcolm v. Superior Court, supra, 29 Cal.3d 518, 528-529, 174 Cal.Rptr. 694, 629 P.2d 495, fns. omitted.)

Nothing in Malcolm precludes a plaintiff from relying on a verified complaint to oppose an expungement motion. Indeed, the opinion refers to the verified complaint as one of the items on which the plaintiff was relying and implies that the reliance was proper. Moreover, a notice of lis pendens and a preliminary injunction are both remedies to preserve the status quo pending the outcome of an action. As previously stated, a plaintiff may rely on a verified complaint to support an application for preliminary injunction and defendants have given us no reason to establish a different rule for expungement motions. Accordingly, we conclude that a plaintiff may rely on a verified complaint to oppose a motion to expunge a lis pendens. In the present case, this means that plaintiff did produce some evidence to discharge her burden of proof but the sufficiency of that evidence must be determined by examining the complaint in light of the specific facts which plaintiff was required to establish. (See 3 Witkin, Cal....