RAMIREZ P. J. —
J.A. Carr filed a prior quiet title action against Earnest Ortiz and Anna Colón. In connection with that action, he recorded a lis pendens. However, he did not mail the lis pendens to either Ortiz or Colón; instead, he filed a declaration that their addresses were unknown. He also did not examine the county assessor's roll, which would have shown that Ortiz and Colón had a mailing address in Oceanside.
While the prior action was pending, a deed was recorded transferring Colón's half of the property to Michael Lopez; also, a deed of trust was recorded encumbering what was now Lopez's half of the property to secure a loan from Rondo Resources, Inc. (Rondo). Thereafter, Carr won a judgment in the prior action, quieting title in him as against Ortiz and Colón.
Carr then brought this new quiet title action against Lopez and Rondo (plus the principal in Rondo). Ortiz and Colón are not parties; under the judgment in the prior action, they no longer have any interest in the property. Moreover, there is no dispute over Ortiz's former half of the property; under the judgment in the prior action, Carr owns that half. Rather, the present dispute is over Colón's former half of the property. Lopez and Rondo both argue that the lis pendens was void because it was not mailed to Colón's address, as shown on the assessor's roll. Carr argues that he did not have to mail the lis pendens to the address on the assessor's roll because that address was not valid and the lis pendens would not actually have reached Colón.
The property at issue is a vacant lot on Rorimer Drive in Riverside known as lot 122. Carr claims to have been in adverse possession of lot 122 since March 8, 2001.
As of March 8, 2001, the owner of record of lot 122 was a decedent's estate in probate. On July 16, 2003, a judgment was recorded transferring lot 122 from the estate, half to Ortiz and half to Colón.
On or about March 5, 2004, Colón executed a deed purporting to convey her half of lot 122 to Lopez. However, the deed was not immediately recorded.
On May 12, 2006, Carr filed a quiet title action against Ortiz and Colón (but not against Lopez, as Lopez's deed had not yet been recorded).
On May 18, 2006, Carr recorded a lis pendens against lot 122. The lis pendens was not mailed to anybody. Instead, Carr's attorney attached his own declaration to the effect that Ortiz and Colón had no known address.
As of May 18, 2006, the latest county assessment roll listed Ortiz and Colón as the owners of lot 122, with the address of:
On June 1, 2006, a legal assistant in Carr's attorney's office contacted Raymond Gaitan, because Gaitan had represented Ortiz and Colón in the probate proceeding, and asked him to accept service. Gaitan declined, saying he no longer represented Ortiz and Colón.
On November 15, 2006, the summons and complaint (but not the lis pendens) in the prior action were personally served on Colón in Arizona.
On August 29, 2007, Lopez executed a deed of trust on lot 122 in favor of Rondo. Rondo gave Lopez value in exchange for the deed of trust. Rondo inspected lot 122, but found no indication that anyone other than Lopez had or claimed an interest in it.
On October 3, 2007, the trust deed to Rondo was recorded.
On December 15, 2010, the trial court in the prior action entered judgment quieting title to lot 122 in favor of Carr, as against Ortiz, Colón, and (purportedly) Lopez. Lopez, however, had never been made a party to the prior action.
Carr filed this action in 2011. The named defendants are Lopez, Rondo, and Ronald A. Rosien.
After a bench trial, the trial court ruled against Carr and in favor of all defendants. It explained: "The Court finds that Plaintiff Carr's Quiet Title Judgment does not bind Lopez because the Lis Pendens was void. The Court further finds that Plaintiff Carr has not met his burden of proof on the remaining causes of action." It entered judgment accordingly.
After a bench trial, the trial court ruled against Carr and in favor of all defendants. It explained: "The Court finds that Plaintiff Carr's Quiet Title Judgment does not bind Lopez because the Lis Pendens was void. The Court further finds that Plaintiff Carr has not met his burden of proof on the remaining causes of action." It entered judgment accordingly.
"`In California, a notice of lis pendens gives constructive notice that an action has been filed affecting title or right to possession of the real
Code of Civil Procedure section 405.22 (section 405.22) provides that, before recording a lis pendens, the claimant must "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 of the real property affected by the real property claim as shown by the latest county assessment roll. If 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 of the proof of service required above, and the service on that party or owner shall not be required."
Code of Civil Procedure section 405.23 (section 405.23) then provides that "[a]ny notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner...."
The effect of a lis pendens in a quiet title action is subject to special statutory rules. (See generally 5 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 11:147 at pp. 11-449 to 11-451 (rel. 9/2009).) First, Code of Civil Procedure section 764.030 (section 764.030) provides:
Next, Code of Civil Procedure section 764.045 (section 764.045) provides:
We apply dual standards of review. "`If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial court's express or implied findings supported by substantial evidence. [Citations.]' [Citation.] `"[W]e must consider the evidence in the light most favorable to the prevailing party, giving such party the benefit of every reasonable inference, and resolving all conflicts in support of the judgment. [Citation.]" [Citation.]' [Citation.]" (Chino Commercial Bank, N.A. v. Peters (2010) 190 Cal.App.4th 1163, 1169-1170 [118 Cal.Rptr.3d 866] [Fourth Dist., Div. Two].) However, "[t]he interpretation of a statute and its application to undisputed facts are questions of law subject to de novo review. [Citation.]" (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 917 [146 Cal.Rptr.3d 12] [Fourth Dist., Div. Two].)
We will discuss the application of these principles first to Colón, and then to Lopez and Rondo.
In 1851, the Legislature enacted section 27 of the California Practice Act, which provided for a lis pendens. (Stats. 1851, ch. 5, § 27, p. 54.) Under this section, a lis pendens was fully effective when it was recorded. (Ibid.) In 1872, this section was replaced by Code of Civil Procedure former section 409 (section 409), which likewise provided that a lis pendens was fully effective when recorded.
In 1981, however, the Legislature amended section 409 so as to provide for the first time that the lis pendens must be mailed to "to all known addresses of the adverse parties and to all owners of record as shown by the county assessor's office," and if this is not done, the lis pendens is "void and invalid as to" the relevant adverse party or owner of record. (Stats. 1981, ch. 889, § 1, pp. 3400-3401.)
Finally, in 1992, the Legislature repealed section 409 and replaced it with sections 405.22 and 405.23. (Stats. 1992, ch. 883, §§ 1-2, pp. 4100-4101.) However, the mailing requirement — and the penalty for failing to comply with it — remained unchanged.
Even so, the statute evidently anticipates that the claimant will check the assessment roll, rather than face the risk of lurking owners. According to the leading treatise on California lis pendens practice, "the statute requires resort to the assessor's roll to determine the identity as well as the addresses of record owners. Accordingly, the title information obtained in connection with preparation of a lis pendens [citation] must include a search of the assessor's roll to ensure compliance with CCP § 405.22 ...." (See Cal. Lis Pendens Practice, supra, § 2.31, pp. 68-69 (rev. 8/97).) Once the claimant does check the assessment roll, the owners' addresses, as listed therein, become "known." (See Rev. & Tax. Code, § 602, subd. (a).) It is possible for an owner's address not to be listed in the assessment roll because it is unknown to the assessor. Then — and only then — the claimant can satisfy its obligation to mail the lis pendens to that owner by submitting a declaration that the owner has no known address.
Carr does not seriously dispute this. He argues, however, that the address on the assessment roll was incorrect,
Carr also relies on Biddle v. Superior Court (1985) 170 Cal.App.3d 135 [215 Cal.Rptr. 848]. The California Law Revision Commission comment to section 405.23 states: "It is not the intention of this section to disapprove the principles of waiver applied in Biddle ...." (Cal. Lis Pendens Practice, supra, code comment, p. 200 (rev. 9/01), reprinted at 14A West's Annot. Code Civ. Proc. (2004 ed.) foll. § 405.23, p. 332.)
In Biddle, the plaintiffs mailed the lis pendens to one of the defendants' two known addresses, but not the other; they also failed to send it return receipt requested. The defendants filed two successive motions to expunge (one denied, and one granted on condition that they file a bond, which they did not do). The defendants then transferred the property to a related entity, which filed for bankruptcy. A year after the lis pendens was recorded, the defendants filed a third motion to expunge; in it, they argued, for the first time, that the lis pendens was void and invalid because it had not been properly mailed. (Biddle v. Superior Court, supra, 170 Cal.App.3d at p. 137.)
The appellate court held that the third motion should have been denied. It explained:
"The [defendants] have never disputed receipt of notice. Moreover, they brought two motions to attack the substantive validity of the lis pendens without mentioning the defects in service. Only after these efforts had failed, the property was transferred, and the [defendants] filed bankruptcy, did they raise the defect in their third motion to expunge. On these facts not only was the purpose of the notice statute served, but the [defendants] waived any service defects by waiting more than a year to assert them. [Citations.]" (Biddle v. Superior Court, supra, 170 Cal.App.3d at pp. 137-138.)
In sum, then, the reasoning in Biddle had two prongs: First, the plaintiffs substantially complied with the mailing requirement; and second, the defendants waived any defects. The California Law Revision Commission comment refers only to the waiver aspect of Biddle. Thus, there is some doubt as to whether the Legislature also intended to preserve its substantial compliance aspect. (See Cal. Lis Pendens Practice, supra, § 2.31, p. 70 (rev. 8/97).)
Carr points out that Colón did get actual notice of the prior action, because it was served on her on November 15, 2006. However, this occurred after October 13, 2006, when Colón's deed to Lopez was recorded.
When we look at the statutes governing the effect of a quiet title judgment — sections 764.030 and 764.045 — in isolation, it would appear that Carr has priority over Lopez. Lopez was not a party to the prior action.
Carr also contends that, even if the lis pendens was void, it continued to provide constructive notice to Lopez and Rondo unless and until it was expunged. The Legislature, however, chose to provide that a lis pendens that is not properly mailed is "void." There is a firmly established distinction between "void" and "voidable." (E.g., Marvin v. Marvin (1976) 18 Cal.3d 660, 673 [134 Cal.Rptr. 815, 557 P.2d 106].) Evidently the Legislature intended a lis pendens that is not properly mailed to be void ab initio, without the need for any further action.
Accordingly, here, the lis pendens is void, even though it has never been expunged.
The judgment is affirmed. Lopez, Rosien, and Rondo are awarded costs on appeal against Carr.
McKinster, J., and King, J., concurred.
Carr's complaint in the prior action alleged that he had posted signs on lot 122 saying, "OWNER: JOHN CARR, P.O. BOX 2224 OCEANSIDE, CA 92051." Because the complaint was verified, and because it was admitted as an exhibit in this action, Carr argues that this is proof that the address belonged to him.
The complaint, however, was offered and admitted to show that the prior action had, in fact, been filed. As evidence of the truth of its assertions, it was inadmissible hearsay. (Evid. Code, § 1200, subd. (b); see Evid. Code, §§ 1235, 1291, subd. (a).) The sign was a second level of inadmissible hearsay. (Evid. Code, § 1201.) Finally, we also note that the ZIP Code on the sign (92051) was different from the ZIP Code in the assessor's roll (92054).
