United Professional Planning, Inc. v. Superior Court

• Decision Date: 02 July 1970
• Citation: 88 Cal.Rptr. 551,9 Cal.App.3d 377
• Court: California Court of Appeals Court of Appeals
• Parties: UNITED PROFESSIONAL PLANNING, INC., Petitioner, v. SUPERIOR COURT OF ORANGE COUNTY, Respondent; James GOODMAN, an individual, Joseph Goodman, an individual, Real Parties in Interest. Civ. 10222.

Page 551

88 Cal.Rptr. 551

9 Cal.App.3d 377

UNITED PROFESSIONAL PLANNING, INC., Petitioner, v. SUPERIOR COURT OF ORANGE COUNTY, Respondent;

James GOODMAN, an individual, Joseph Goodman, an individual, Real Parties in Interest.

Civ. 10222.

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

July 2, 1970.

Hearing Denied Aug. 26, 1970.

[9 Cal.App.3d 382] Ambrose & Malat, and Gerald A. Malat, Beverly Hills, for petitioner.

No appearance for respondent.

Gunderman & Riddet, and Gary E. Gunderman, Santa Ana, for real parties in interest.

OPINION

KAUFMAN, Associate Justice.

Pursuant to section 409.4 of the California Code of Civil Procedure, plaintiff petitions for a writ of mandate to command the respondent court to vacate its order expunging plaintiff's lis pendens. James Goodman and Joseph Goodman, defendants, are the real parties in interest.

Plaintiff sued for specific performance of an alleged contract to convey real property. ¹ Motions by defendants for summary judgment and judgment on the pleadings were denied. Thereafter, trial commenced on the merits. At the close of plaintiff's case, judgment was entered for defendants under section 631.8 of the Code of Civil Procedure. Plaintiff filed a notice of appeal from this judgment on October 9, 1969, which appeal is pending.

On October 22, 1969, approximately two weeks after the filing of the notice of appeal, defendants moved the court, in the law and motion department as distinguished from the trial department, to expunge plaintiff's lis pendens pursuant to section 409.1(b) of the Code of Civil Procedure on the ground that plaintiff commenced the action for specific performance 'for an improper purpose and not in good faith.' By order dated December 30, 1969, pending the appeal on the merits, the court made its order granting defendant's motion and expunging the lis pendens.

Plaintiff contends that the respondent court proceeded without and in excess of its jurisdiction in considering and granting the motion to expunge after plaintiff's notice of appeal was filed and that, in any event, the court erred in finding that the action for specific performance was commenced for an improper purpose and not in good faith.

Jurisdiction to Make Order

We have concluded that the trial court did not proceed without or in excess of its jurisdiction in considering the motion to expunge the lis pendens and in making its order after the notice of appeal had been filed.

Section 916(a) ² of the Code of Civil Procedure provides that, with exceptions not here pertinent, 'the perfecting of an appeal stays proceedings in the trial court upon the judgment or order, appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.' In terms of the statutory language, we are called upon to determine whether an order expunging a lis pendens is a matter 'embraced' in a judgment denying specific performance or 'affected' thereby or whether the expungement of the lis pendens is an 'other matter embraced in the action and not affected by the judgment or order.' Section 409.1 ³ of the Code of Civil Procedure authorizing the trial court to expunge a lis pendens was enacted in 1969, and the question appears to be one of first impression.

The language of section 916 is not particularly helpful in resolving the question, for, whether or not a matter is 'embraced' in the judgment or 'affected' thereby is a legal conclusion involving the very determination we are called upon to make.

The language of section 409.1 when added to several somewhat analogous cases gives some indication of the proper answer. First, we note that expungement may be made if the action has been commenced Or prosecuted for an improper purpose and not in good faith. The words 'or prosecuted' suggest that the trial court may exercise its power after trial as well as prior thereto, and the propriety of the expungement of a lis pendens after trial and judgment but prior to perfection of a appeal under section 409.2 has been recognized. (Howden-Goetzl v. Superior Court, 7 Cal.App.3d 135, 138--139, 86 Cal.Rptr. 323.) This does not answer the question, however, whether the trial court may take such action after the perfection of an appeal in the face of section 916 of the Code of Civil Procedure expressly limiting the power of the trial court after an appeal has been filed. (Cf. Vosburg v. Vosburg, 137 Cal. 493, 494--495, 70 P. 473.) Similarly, the language in section 409.1 that the expungement may be made 'at any time after notice of pendency of an action has been recorded' is of little assistance inasmuch as it does not deal with the problem of a pending appeal, while section 916 expressly does. (Cf. Vosburg v. Vosburg, Supra, at 494--495, 70 P. at 473.)

More helpful, perhaps, is the language in section 409.1 that the expungement is to be made by 'the court in which the action is pending.' It would appear that under the provisions of section 916, after the perfection of an appeal, the action is pending in the trial court for some purpose and in the appellate court for other purposes. However, identical language, 'the court in which the action is pending,' in section 542a of the Code of Civil Procedure, dealing with the extension of a lien of attachment on real property, was interpreted in Palmer v. Fix, 205 Cal. 472, 474, 271 P. 749, as meaning the court where the action was commenced, the trial court. Palmer held that, notwithstanding the case was on appeal, a motion for extension of the lien was to be addressed to the trial court. This interpretation and holding in Palmer was relied upon by the court in the recent case of Howden-Goetzl v. Superior Court, Supra, 7 Cal.App.3d 135, 138--139, 86 Cal.Rptr. 323, in its holding that the identical language in section 409.2 of the Code of Civil Procedure meant the trial court and that, if the evidence warranted it, it would be proper procedure, pending appeal, for the trial court to increase the amount of the undertaking provided for by section 409.2.

Of course, neither the Palmer case nor the Howden-Goetzel case is completely analogous, for the extension of the lien period or the increasing of the amount of an undertaking would tend to preserve the rights and remedies of the plaintiff-appellant pending appeal, whereas an order for expungement of the lis pendens tends to diminish the potential rights and remedies of the plaintiff-appellant and to render his appeal futile. This is precisely plaintiff's contention. It urges that the expungement of a lis pendens may, as a practical matter, render a suit for specific performance meaningless (see Brownlee v. Vang, 206 Cal.App.2d 814, 816, 24 Cal.Rptr. 158), and, if the action of the trial court would tend to render the pending appeal futile, such action should be classified as 'embraced' within or 'affected by' the judgment and prohibited in accordance with section 916 of the Code of Civil Procedure. (Lerner v. Superior Court, 38 Cal.2d 676, 680, 242 P.2d 321; Vosburg v. Vosburg, Supra, 137 Cal. 493, 496, 70 P. 473.)

Upon initial consideration, this contention of plaintiff would appear to have considerable merit, but, upon further reflection, it is apparent that the possibility that the final judgment will be rendered meaningless is inherent in the very power conferred upon the trial court to expunge the lis pendens under section 409.1. The effectiveness of an appeal is not any more greatly affected by expungement after the notice of appeal has been filed than it would have been had the order for expungement been made prior to the perfection of the appeal.

Indeed, the Legislature's conferring upon the trial court this unique and somewhat anomalous power indicates that the expungement of a lis pendens should be considered collateral to the judgment and not 'embraced' within it or 'affected' thereby. Upon finding that the action concerning the title or possession to real property was commenced or prosecuted for an improper purpose and not in good faith, the trial court is empowered to expunge the lis pendens, but there is no corresponding provision for dismissal of the action. In other words, the trial court may expunge the lis pendens and, nevertheless, proceed to try the action and render judgment, conceivably in favor of the plaintiff. It would thus appear that, in enacting section 409.1, the Legislature must have considered the expungement of the lis pendens as being collateral to any judgment to be rendered.

Moreover, in the absence of compelling analogous case law or persuasive language in the statutes, the rule should be adopted which best serves the efficient and proper administration of the courts. A rule upholding he power of the trial court does so.

Section 409.1 was enacted in an effort to mitigate against and correct alleged abuses in the use of lis pendens. (Howden-Goetzl v. Superior Court, Supra, 7 Cal.App.3d 135, 138, 86 Cal.Rptr. 323; see C.E.B., Review of Selected 1968 Code Legislation, pp. 60--61; Comment, 'Abuses of the California Lis Pendens: An Appeal for Legislative Pemedy,' 39 So.Cal.L.Rev. 108.) It is unlikely that the Legislature intended that the remedy be available at all times prior to appeal but not available during the time, often protracted, the case is on appeal. It would seem obvious, therefore, that, during appeal, either the trial court or the appellate court has the power to expunge under the statute. A rule that the trial court is without jurisdiction would necessitate motions for expungement being addressed to the appellate court. Although section 409.1 provides for the submission of affidavits, it does not foreclose the calling of witnesses or presentation of other evidence at the hearing on the motion. (Cf. Perez v. Perez, 111 Cal.App.2d 827, 828--829, 245 P.2d 344.) Obviously, a trial court is better...