Opinion Says Court Permission Must Be Secured Even if Recording Takes Place in New Lawsuit
By a MetNews Staff Writer
The First District Court of Appeal held yesterday that the rule that court permission must be secured before recording a lis pendens for the second time on the same property applies even though the recording takes place in a subsequent lawsuit.
Justice Victor Rodríguez of Div. Three authored the opinion which grants a writ of mandate directing that a lis pendens be expunged based on the lack of court permission to record it.
At issue was the proper application of Code of Civil Procedure §405.36’s requirement of gaining court approval of a repeat recording of a lis pendens. San Mateo Superior Court Judge Nicole S. Healy held that the section did not apply, under the circumstances, to a second lis pendens filed by Puja Gupta, a would-be purchaser of real property for $6 million, all-cash.
Arbitration of Dispute
In 2020, a dispute arose in connection with the transaction and the parties entered into arbitration; Gupta moved for an order confirming the award and, in 2021, recorded a lis pendens; the court granted the motion and subsequently granted De Martini’s motion to expunge the lis pendens. Gupta abandoned the litigation.
She then brought a second action to compel a conveyance and recorded a lis pendens. Court permission was required and the requirement was not met, Rodríguez wrote.
Sec. 405.36 says that “[o]nce a notice of pending action” pertaining to the title to real property “has been expunged, the claimant may not record another notice of pending action as to the affected property without leave of the court in which the action is pending.” Interpreting that provision, the justice said:
“The use of the indefinite article ‘a’ before ‘notice of pending action’ signals a general reference to any and all notices, rather than a particular notice….[T]he same claimant must desire to record a second lis pendens on the same property—’the claimant may not record another notice of pending action as to the affected property.’…The statute’s use of the definite article ‘the’ before ‘claimant’ demonstrates the Legislature was referring to a specific claimant.”
“And by stating the claimant may not record ‘another notice of pending action,’ the statute indicates the provision applies to claimants who recorded the prior, expunged lis pendens, i.e., the same claimant….Moreover, by referring to ‘the’ affected property, the statute indicates the Legislature was referring to the specific property that was the subject of the prior, expunged lis pendens….If both circumstances are present, the claimant must seek leave of court in which ‘the action is pending’ before filing another lis pendens on the same property—even in a different action.”
‘Same Action’ Requirement
He added: “Gupta argues the trial court properly interpreted section 405.36 as requiring court authorization to file a second lis pendens only if the first one was recorded in the same action. But she fails to identify, and we cannot find, language imposing the ‘same action’ requirement.”
Rodríguez said that Healy also erred in requiring only that Gupta make a prima facie showing that her action has merit. Under §405.32, he pointed out, a showing of probable validity must be demonstrated under a preponderance of the evidence standard.
The opinion directs that the award of attorney fees to Gupta be vacated, but does not order that such fees be awarded to De Martini.
“Rather, we leave the issue to the court to determine whether there are special findings supporting the denial of fees,” the opinion says.
The case is De Martini v. Superior Court (Gupta), A168529.
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