Parker v. Superior Court

• Citation: 88 Cal.Rptr. 352,9 Cal.App.3d 397
• Court: California Court of Appeals Court of Appeals
• Decision Date: 03 July 1970
• Parties: , 67 A.L.R.3d 743 Larry B. PARKER, Petitioner, v. SUPERIOR COURT, RIVERSIDE COUNTY, Respondent; Charles DWIGHT, Real Party in Interest. Civ. 10229.

Page 352

88 Cal.Rptr. 352

9 Cal.App.3d 397, 67 A.L.R.3d 743

Larry B. PARKER, Petitioner, v. SUPERIOR COURT, RIVERSIDE COUNTY, Respondent;

Charles DWIGHT, Real Party in Interest.

Civ. 10229.

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

July 3, 1970.

Hearing Denied Aug. 26, 1970.

[9 Cal.App.3d 398] Reid, Babbage & Coil and David Moore, Riverside, for petitioner.

James A. Poore, Jr., and Wayne I. McClaskey, Los Angeles, for real party in interest.

OPINION

GARDNER, Presiding Justice.

Petitioner, Larry B. Parker, asks for a writ of mandamus directing the trial court to order the expungement of a lis pendens. (Code of Civil Procedure, §§ 409.1(a), 409.4.)

Charles Dwight sued Sally M. Dwight for divorce. The complaint set forth six causes of action, including breach of a property settlement agreement, fraud and quiet title. One of the parcels of property in contention was a leasehold interest in a lot in Palm Springs. Upon filing the complaint, Charles Dwight recorded a lis pendens on this property. Larry B. Parker purchased the real property after the filing of the lis pendens and filed in the superior court a motion to expunge the lis pendens. The court denied the motion.

The sole question presented is may a lis pendens be properly filed on a leasehold interest for years on real property?

A lis pendens may be filed in an action 'concerning real property or affecting the title or the right of possession of real property.' (Code of Civil Procedure, § 409.) The filing of a lis pendens is ineffective if the action is one concerning personal property. (MacDermot v. Hayes, 175 Cal. 95, 170 P. 616.)

Petitioner contends that since an estate for years is personal property, that the filing of a lis pendens was improper and subject to expungement. (See Civil Code, § 765; Dabney v. Edwards, 5 Cal.2d 1, 53 P.2d 962; Callahan v. Martin, 3 Cal.2d 110, 43 P.2d 788; Summerville v. Stockton Milling Co., 142 Cal. 529, 76 P. 243 (in which it was held that a judgment lien which attaches to real property (Code of Civil Procedure, § 674) did not cover a lease); Jeffers v. Easton, Eldridge & Co., 113 Cal. 345, 45 P. 680; City of Santa Barbara v. Maher, 25 Cal.App.2d 325, 77 P.2d 306.)

The few cases involving lis pendens are not helpful.

In Brownlee v. Vang, 206 Cal.App.2d 814, 24 Cal.Rptr. 158, it was held that the complaint must set forth some cause of action affecting the title or right of possession of the specific real property described in the lis pendens. Unfortunately, the complaint in that case did not describe any real property, therefore, the court held that a lis pendens which had been filed was a nullity.

MacDermot v. Hayes, supra, 175 Cal. 95, 170 P. 616, merely held that the amendment to Code of Civil Procedure, § 409, ¹ which added 'the right of possession of real property' to 'actions affecting title to real property' did not encompass a lis pendens for specific personal property, 'the possession or evidence of title hereof may be passed from hand to hand without public or written evidence of its transfer.'

It has been held that chattel mortgages are not included within lis pendens law. (Security First Nat. Bank v. Sartori, 34 Cal.App.2d 408, 418, 93 P.2d 863.) An action to impress a trust on personal property is not within the section (MacDermot v. Hayes, Supra,) nor is an action for attorney's fees. (Hardy v. San Fernando Valley C. of C., 99 Cal.App.2d 572, 222 P.2d 314.) 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.

A lease has a dual character. It is a conveyance of an estate in the land and a contract between the lessor and the lessee for the possession and use of the property in consideration of rent. (2 Witkin, Summary of California Law, p. 1059.) It may be recorded as an instrument affecting title to or possession of real property. (Gov.Code, §§ 27280--27288.) So also may the assignment of a lease. While rules of property law do not necessarily govern liability for taxes, under tax law a lessee clearly has a possessory interest in real property since he has lawful possession of it. (El Tejon Cattle Company v. County of San Diego, 64 Cal.2d 428, 50 Cal.Rptr. 546, 413 P.2d 146; County of Riverside v. Palm-Ramon Development Co., 63 Cal.2d 534, 47 Cal.Rptr. 377, 407 P.2d 289; Tilden v. County of Orange, 89 Cal.App.2d 586, 201 P.2d 86.)

Although not 'real property' or 'real estate' a leasehold is nevertheless an estate in land, an estate in real property (Civil Code, § 761; Callahan v. Martin, Supra, 3 Cal.2d 110, 118, 43 P.2d 788; Bachenheimer v. Palm Springs...