BOWMAN v. SARPOLIS

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

Charles W. BOWMAN et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of San Francisco, Respondent, Robert SARPOLIS, Real Party in Interest.

A031144.

Decided: November 08, 1985

Jeffrey Alan Levenberg, Marvin L. Porten, San Francisco, for petitioners. John L. Hosack, Scott A. Sommer, Jeffrey H. Belote, Tobin & Tobin, San Francisco, for real party in interest.

Petitioners, Charles W. Bowman and Ann Gidden Bowman, seek a writ of mandate requiring the superior court to set aside its order granting the motion of real party in interest, Robert Sarpolis, to expunge a notice of pendency of action (lis pendens).   We issued an order to show cause and stayed the effect of the trial court's order pending resolution of the petition herein.   We now determine that the court below erroneously concluded that petitioners had failed to comply with the requirements of Code of Civil Procedure section 409, subdivisions (c) and (d), and direct the issuance of a peremptory writ.1

The facts relevant to this petition are undisputed.   On January 19, 1984, petitioners filed a complaint for specific performance of a contract for the sale and purchase of residential real property, and for breach of contract, against Fred Moncharsh, Donna Moncharsh, Tomas Krakauer, Carla Krakauer and William Keland (the Moncharsh group).   They recorded a lis pendens at 10:56 a.m. on that date.   Also on that date, at 1:00 p.m., real party recorded a grant deed, which had been executed on January 9, 1984, which conveyed the real property in question from the Moncharsh group to him.

On May 22, 1984, the court sustained a demurrer to the complaint, based upon the ground that petitioners had failed to join real party, who as current owner of the property was an indispensable party to the action.   The order sustaining the demurrer granted petitioners 20 days within which to file an amended complaint.

On June 5, 1984, petitioners filed an amended complaint, adding real party as a defendant.   The amended complaint restated claims against the Moncharsh group and alleged that real party was not a good faith purchaser for value.   It sought a conveyance of the property from real party to petitioners.

On January 25, 1985, real party filed a motion to expunge the lis pendens which petitioners had recorded on January 19, 1984.   After proceedings not relevant to the issues presently before us, the court below, on May 30, 1985, granted the motion to expunge on the ground that petitioners had failed to comply with the service and filing requirements of section 409, subdivisions (c) and (d).

Petitioners concede that they did not serve a copy of the lis pendens upon real party, nor (obviously) record any proof of such service.   They contend that they were not required to so serve real party because he was brought into the action pursuant to section 472a, and the statute requires only that parties brought into the action pursuant to sections 472 or 473 be served with a copy of a lis pendens.

Real party, on the other hand, contends that he was brought in pursuant to section 472 “or one of its attendant subsections,” or pursuant to section 473 “or one of its attendant subsections,” thus requiring service of a copy of the lis pendens pursuant to section 409, subdivision (c).   Alternatively, he contends that section 409, subdivision (c), must be interpreted to include a reference to all occasions upon which a party may be brought into an action and to require service of a copy of a lis pendens in all such circumstances.

Section 472 provides that any pleading may be amended once as a matter of course before an answer or demurrer is filed, or after demurrer but before a hearing thereon.   Section 473 provides that the court may in its discretion allow any party to amend any pleading.   Section 472a, subdivision (c), as in effect in 1984, provided:  “When a demurrer is sustained, the court may grant leave to amend the pleading and shall fix the time within which the amendment or amended pleading shall be filed, or entered in the docket.” 2  An order pursuant to section 472a, subdivision (c), is precisely what was entered in the present case.

Initially, we summarily reject any suggestion of real party that section 472a is somehow a subsection of either section 472 or section 473.   Pursuant to the numbering system used in the codes, section 472a is clearly an entirely separate section from either section 472 or 473.   Such designations are not uncommon in our codes.  (See, e.g., § 437 [motion to strike] and § 437c [motion for summary judgment].)

Petitioners contend that section 409, subdivision (c), is clear on its face in requiring that service of a copy of a lis pendens be made upon a party brought into an action pursuant to section 472 or 473, and not requiring such service when a party is brought in under some other provision.   We agree.

Prior to a 1981 amendment, there was no requirement that a copy of a lis pendens be served upon any party or owner of record.   The 1981 amendment to section 409 added the present requirement that a copy be served upon adverse parties and owners of record, and also upon each adverse party later brought into an action pursuant to section 472 or 473.  (Stats.1981, ch. 889, § 1, p. 3400.)

The Legislature could have specified that all parties subsequently brought into an action be so served, or that parties brought in pursuant to certain other statutes be so served.3  It did not do so.   Indeed, in 1984 the Legislature enacted an amendment to section 409 which would have required service of a copy of a lis pendens upon a defendant brought in as a previously fictitiously named defendant under section 474 as well as upon a party brought in under section 472 or 473 (Stats.1984, ch. 572, No. 8 West's Cal.Legis. Service, p. 590), thus recognizing that there was no such requirement in existing law.   That amendment was later superseded by another enactment of the same session of the Legislature which omitted the provision with respect to section 474.  (Stats.1984, ch. 760, No. 9 West's Cal.Legis. Service, p. 480.)

 In determining that there is no requirement that a party brought in under an amendment made pursuant to section 472a be served with a copy of a lis pendens, we bear in mind the principle set forth in section 1858:  “In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted․”  When the statutory language is clear there can be no room for interpretation of the statute.  (Keele v. Reich (1985) 169 Cal.App.3d 1129, 1131, 215 Cal.Rptr. 756;  Harold L. James, Inc. v. Five Points Ranch, Inc. (1984) 158 Cal.App.3d 1, 4, 204 Cal.Rptr. 494.)   There is no ambiguity in section 409, subdivision (c).   It requires that a party brought in under section 472 or 473 be served with a copy of a lis pendens.   It does not require that a party brought in under section 472a be so served.4

Real party's argument that the statute must be construed to embrace all occasions when a party is added to an action is based upon his view that the Legislature intended such a result.   That is not, however, what the Legislature provided.   It may well be that there is a shortcoming in the statutory scheme.   If so, that is a matter to be remedied by the Legislature, not the courts.

Let a peremptory writ of mandate issue directing the respondent superior court to set aside its order granting real party's motion to expunge the notice of pendency of action and to enter an order denying the motion.   The stay heretofore imposed shall remain in effect pending the finality of this opinion.

FOOTNOTES

1.   All further statutory references are to the Code of Civil Procedure.At the time the lis pendens was recorded, the code provisions in question were designated section 409, subdivisions (b) and (c).   Effective January 1, 1985, they were redesignated subdivisions (c) and (d).  (Stats. 1984, ch. 760, No. 9 West's Cal.Legis. Service, p. 480.)   Throughout this opinion we refer to the provisions by their current designations.   Section 409, subdivision (c) and (d), provide as follows:“(c) Except in actions brought under Title 7 (commencing with Section 1230.010) of Part 3, the person causing the notice of the pendency of the action to be recorded shall first cause a copy of the notice to be served upon the other party, by first class mail, return receipt requested, mailed to all known addresses of the adverse parties and all owners of record as shown by the county assessor's office.   A copy of the notice of the pendency of the action shall also be filed with the court in which the lawsuit is filed.   Service shall also be made immediately upon each adverse party who is later brought into the action pursuant to Section 472 or 473.”“(d) Any notice of the pendency of the action recorded pursuant to subdivision (a) shall be void and invalid as to any adverse party or owner of record, unless the requirements of subdivision (c) are met for the party or owner, and a proof of service, as set forth in Section 1013a, has been recorded with the notice of the pendency of the action.   If there is no known address for service on an adverse party or owner as required under subdivision (c), then as to that party a declaration under penalty of perjury to such effect shall be recorded instead of the proof of service described above and the service on that party shall not be required.”

2.   This subdivision was subsequently amended to add that such leave may be granted “upon any terms as may be just.”

3.   Examples of other statutes providing for a party to be brought into an action are section 472a (involved in this action), section 474 (defendant originally designated by fictitious name), section 385 (substitution of transferee, representative, or successor in interest for named defendant), and section 387 (intervention).

4.   Due to the conclusion we have reached in this opinion, it is unnecessary to consider whether, had the order expunging the lis pendens been proper, petitioners would be entitled to refile an effective lis pendens in compliance with all requirements of section 409.  (Cf. McKnight v. Superior Court (1985) 170 Cal.App.3d 291, 215 Cal.Rptr. 909.)

ROUSE, Associate Justice.

KLINE, P.J., and SMITH, J., concur.

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