Thursday, July 16, 2015
C.A. Takes Strict View of Mailing Requirement for Lis Pendens
Panel Says Notice Must Be Mailed to Owner’s Address of Record, Valid or Not
By KENNETH OFGANG, Staff Writer
A lis pendens related to a quiet title action is void if not mailed to the owner’s address, as reflected by the assessor’s roll, whether that address is valid or not, the Fourth District Court of Appeal has ruled.
Div. Two Tuesday affirmed a judgment in a Riverside Superior Court action, refusing to quiet title in the plaintiff, who claimed ownership by adverse possession of a vacant lot in Riverside.
The plaintiff, John Carr, actually filed two actions related to the lot. The first, filed in 2006, named Earnest Ortiz and Anna Colon as defendants.
In that action, Carr claimed to have been in adverse possession of the lot since March 8, 2001; the owner of record as of that date was a probate estate. In July 2003, the probate court entered judgment transferring the property in equal shares to Ortiz and Colon, who were represented by attorney Raymond Gaitan.
Six days after filing the first action, Carr recorded a lis pendens, which was not served on anyone. Carr’s attorney attached a declaration saying that Ortiz and Colon had no known address.
In fact, as of that date, the county assessment roll listed Ortiz and Colon as the owners, with a mailing address of “c/o Raymond Gaitan” at a post office box in Oceanside.
Attorney Declines Service
A legal assistant for Carr’s attorney contacted Gaitan and asked if he would accept service. He declined, saying he no longer represented Ortiz or Colon. The legal assistant later testified that Gaitan “did not have or would not provide” an address for either of his former clients.
In October 2006, a deed—executed more than two years earlier and purporting to convey Colon’s interest in the property to Michael Lopez—was recorded. A month later, the summons and complaint, but not the lis pendens, in the first lawsuit were personally served on Colon in Arizona.
Lopez subsequently executed a deed of trust in favor of Rondo Resources, Inc. which was recorded in October 2007. Judgment in the first quiet title action was entered in favor of Carr and against Ortiz and Colon was entered in 2010.
The second quiet title action was filed the following year, by Carr against Lopez and Rondo. After a bench trial, Judge Gloria Trask ruled for the defendants, saying the judgment in the first action was not binding on them because the lis pendens was void.
Presiding Justice Manuel Ramirez, in Tuesday’s opinion for the Court of Appeal, said the trial judge was correct.
The governing statutes, he explained, are Code of Civil Procedure §§405.22 and 405.23. They require that a claimant, prior to recording a lis pendens “cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record…as shown by the latest county assessment roll.”
The legislation further provides that when “there is no known address for service on an adverse party or owner, then as to that party or owner a declaration under penalty of perjury to that effect may be recorded instead” and that a lis pendens is “void and invalid” with respect to any party as to whom the service requirements are not met.
In this case, because the statutory requirements were not met as to Colon, the lis pendens is void as to her, Ramirez said. And because Colon’s title was unencumbered by the lis pendens, the jurist concluded, it was not binding on her transferee, Lopez, or on his mortgagor, Rondo.
That the address on the assessor’s roll was allegedly incorrect does not change the result, the presiding justice said, because “the statute the statute evidently anticipates that the claimant will check the assessment roll, rather than face the risk of lurking owners.” When the roll is checked, he elaborated, the owners’ addresses and identities become “known.”
The alternative situation envisioned by the statute, in which the service-by-mail requirement is dispensed with, arises when the addresses are unknown “to the assessor,” Ramirez emphasized. “Then—and only then—the claimant can satisfy it obligation to mail the lis pendens to that owner by submitting a declaration that the owner has no known address,” he wrote.
As for Carr’s claim that service by mail would have been futile, Ramirez wrote, “we can never know for certain, precisely because Carr never tried.” Perhaps it would have been forwarded, he wrote, and even if it wasn’t, “the statute makes no exception for cases in which the address on the assessor’s roll is incorrect.”
The case is Carr v. Rosien, 15 S.O.S. 3640.
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