LANDES CONSTRUCTION COMPANY INC v. SAN SIMEON HOMES (1980)

OPINION

Petitioner seeks a writ of mandate to compel respondent court to reverse its order expunging a notice of lis pendens pursuant to Code of Civil Procedure section 409.1.¹ The underlying action was brought by petitioner to obtain specific performance of an agreement whereby some of the real parties in interest (hereinafter sellers) had agreed to sell real property to petitioner. Petitioner, as plaintiff in the superior court, had recorded a notice of lis pendens. Respondent court, after a hearing, ordered the notice expunged upon the statutory ground that petitioner failed to show to the satisfaction of the court, by a preponderance of the evidence, that the action was commenced and prosecuted for a proper purpose and in good faith. (See s 409.1, subd. (b).)

The petition includes as attachments certain exhibits which were before respondent court and includes a narrative recital of petitioner's version of the facts. The sellers have supplied additional documents which were before respondent court, including copies of instructions and other papers from the escrow file. We order the writ to issue because the trial judge applied an improper standard in arriving at the conclusion that petitioner had not shown that he commenced or prosecuted the action for a proper purpose and in good faith.

FACTS

On September 5, 1978, Landes Construction Company, Inc., the petitioner (hereinafter called buyer) signed a written “Agreement of Purchase and Sale” whereby Franklin J. Mitchell, Jr., Karen S. Mitchell and San Simeon Homes, a limited partnership (sellers) agreed to sell real property located at Cambria to buyer for a price of $225,000. The agreement provided that $5,000 was to be paid upon the opening of escrow, $37,975 upon the close of escrow on October 5, 1978, and $182,025 by a note and deed of trust to the sellers. Two conditions precedent to buyer's obligation to purchase were: (1) buyer's review and approval of an updated preliminary title report, and (2) a finally approved tentative map for condominiums of 20 housing units and California Coastal Commission approval of said 20-unit subdivision.

The contract also provided: “On October 5, 1978, the parties shall consummate this transaction through escrow at the title company.”

On September 11, 1978, an escrow was opened at Title Insurance and Trust Company (title company). The sellers signed and deposited their instructions. On October 5 the buyers deposited escrow instructions called for under the escrow. Attached to buyer's instructions was an amendment making the close of escrow conditioned upon receipt of an approval from buyer's attorney concerning the water supply provided by a water district and a change in the subordination agreement. The latter showing approval of buyer's attorney on the water flow matter was filed with the title company on October 17. The sellers did not approve either the amendment or the change in the subordination provision. The escrow instructions signed by the sellers contained a provision that:

“Time is of the essence of these instructions. If this escrow is not in condition to close by the ‘time limit date’ of on, but not before October 5, 1978, and demand for cancellation is received by you from any principal to this escrow after said date, you shall act in accordance with Paragraph 7 of the General Provisions (cancellation provisions). . . . If no demand for cancellation is made, you will proceed to close this escrow when the principals have complied with the escrow instructions.

“Any amendments of or supplements to any instructions affecting this escrow must be in writing.”

On October 10, 1978, O. G. Sansone and Colleen Sansone, the other real parties in interest (hereinafter called Sansones) were notified by a real estate salesman that the real property in Cambria owned by sellers was for sale. Another escrow was opened on October 10 between sellers and the Sansones. On October 20, the sellers recorded a deed to the property to the Sansones. Thereafter, on November 9, buyer filed a complaint for specific performance and for damages against both the sellers and the Sansones. On the same date the buyer recorded a lis pendens.

A hearing was held at the same time on a motion by buyer to amend the complaint and a motion by the Sansones to expunge the lis pendens. As to the lis pendens motion, no testimonial evidence was presented. The matter was submitted on the pleadings, affidavit of buyer, the affidavit of O. G. Sansone and the escrow file of the title company. The motions to amend the complaint and to expunge the lis pendens were granted. In granting the motion to expunge the lis pendens respondent court found (1) that the Sansones at the time they acquired title were not bona fide purchasers,² and (2) that buyer had not satisfied its burden of proof under section 409.1 of the Code of Civil Procedure in commencing or prosecuting the action for a proper purpose and in good faith.

In expunging the lis pendens, respondent court did not discuss the meaning of good faith and proper purpose as that term is used in section 409.1. However, it is evident from both the record and the court's order granting the expungement motion that the court related the issue of petitioner's good faith and proper purpose in filing the lis pendens exclusively to petitioner's legal right to specific performance of the contract of purchase. In its order, respondent court stated:

“(2) Plaintiff Landes Construction Co., Inc. has not satisfied its burden under Section 409.1 of the Code of Civil Procedure that it has commenced or prosecuted the action for a proper purpose and in good faith. Plaintiff's escrow instructions, delivered on the last day provided for close of escrow, contained substantial amendments contrary to those in defendants' set of instructions. While the amendment concerning water flow was vitiated by the later instructions of plaintiff's counsel, plaintiff never executed escrow instructions conforming to the subordination agreement found in defendants' set of instructions. Plaintiff's responses here were not timely and no good cause has been shown to excuse timely performance. Having failed to comply with the agreement of the parties, it cannot be said that the action was commenced or prosecuted in good faith. Nash v. Superior Court (1978) 86 Cal.App.3d 690 (, 150 Cal.Rptr. 394); United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d (377) (, 88 Cal.Rptr. 551).”

Thus, respondent court in effect conducted a mini-trial from an incomplete evidentiary record on the ultimate substantive issue in the case and resolved the issue of expungement as an ipso facto concomitant to the anticipated result in the specific performance lawsuit. The court removed the lis pendens despite the fact that the petitioner maintained that its proof would show that (a) it failure to perform on October 5 was attributable to the parties' assenting orally to the modification of the agreement, that (b) Sansones should be estopped to deny the existence of the amended contract, and that (c) the amendments to the escrow instruments had no effect on the underlying agreement of the parties.

Section 409.1 provides in pertinent part:

“At any time after notice of pendency of an action has been recorded pursuant to Section 409 or other law, the court in which the action is pending shall, upon motion of a party to the action supported by affidavit, order that the notice be expunged, unless the party filing the notice shows to the satisfaction of the court, by a preponderance of the evidence, that:

“(a) The action does affect title to or right of possession of the real property described in the notice; and

“(b) Insofar as the action affects title to or right of possession of the real property described in the notice, the party recording the notice has commenced or prosecuted the action for a proper purpose and in good faith. . . . The court shall determine the matter on the affidavits and counteraffidavits on file and upon such other proof as the court may permit.” 3

Crucial to a disposition of this cause is the proper meaning of the phrase “proper purpose and in good faith.” In United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 88 Cal.Rptr. 551, after observing “that the meaning of the terms ‘improper purpose’ and ‘not in good faith’ (from the former version of s 409.1) are overlapping and that the existence of one may tend to establish the other” (at p. 387, 88 Cal.Rptr. at pp. 556-557), the court borrowed from the Supreme Court's definition of improper purpose in Albertson v. Raboff (1956) 46 Cal.2d 375, 382-383, 295 P.2d 405. Albertson was an action for malicious prosecution for slander of title arising out of the recordation of a lis pendens. Quoting from the Supreme Court, the United Professional Planning court said:

“ ‘It has been pointed out that the ”principal situations in which the civil proceedings are initiated for an improper purpose are those in which (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.“ (Rest., Torts, s 676, comment b; see also s 668, comment e.)’ (Citation.)” (United Professional Planning, Inc. v. Superior Court, supra, 9 Cal.App.3d at p. 388, 88 Cal.Rptr. at p. 557.)

The United Professional Planning court continued with the observation that:

“We are persuaded that these four situations are those that the Legislature intended primarily to reach by using the terms ‘improper purpose’ and ‘not in good faith’ and that ‘not in good faith’ refers to situation numbered (1), while ‘improper purpose’ refers to situations numbered (2), (3) and (4). We, therefore, adopt these definitions by illustration for purposes of section 409.1, (b). It follows that to be successful in a motion for expungement on the grounds of ‘improper purpose’ and ‘not in good faith,’ the moving party must show that the other party commenced or prosecuted his action without believing in its validity (‘not in good faith’) And the existence of one of the other enumerated situations (‘improper purpose’). As noted above, however, logically the existence of the one may tend to prove the existence of the other.” (Id., at pp. 388-389, 88 Cal.Rptr. at p. 557; fn. omitted.)

United Professional Planning was a case wherein the lower court granted a motion to expunge a lis pendens after the buyer of real property had lost his suit for specific performance of a contract to buy real property. The adverse judgment was pending on appeal. The court held that the trial court erred in granting the motion to expunge upon the ground that the trial judge had determined the merits of the action against the buyer. Notwithstanding such adverse determination on the merits, the court further held that, as a matter of law, the facts in the expungement motion demonstrated that the action was not brought in bad faith and for an improper purpose.

Regarding the change in the wording of the section after the 1976 amendment, we agree with the dissent of Justice Jefferson in Nash v. Superior Court (1978) 86 Cal.App.3d 690, 704, 150 Cal.Rptr. 394, 403, where he observed it is

“. . . reasonable and appropriate to interpret the terms ‘in good faith’ and ‘a proper purpose,’ as used in Code of Civil Procedure section 409.1, after the 1976 amendment, as constituting the very reverse of the terms ‘an Improper purpose’ and ‘Not in good faith’ as those latter terms are interpreted by the United Professional Planning court.”

We conclude that the definition of good faith and proper purpose quoted from United Professional Planning is logical and appropriate. Since the Legislature amended the statute in 1976 and used the words “for a proper purpose” and “in good faith” in light of the United Professional Planning opinion, it must be presumed that the Legislature did not intend to change the existing judicial interpretation of the meaning of those words. Accordingly, we adopt it as the proper definition of those terms in this expungement proceeding.

The real problem in an expungement proceeding is that of proof; specifically, of determining what evidence is probative in ascertaining when an action was begun primarily out of hostility or ill will or initiated solely for the purpose of depriving the person against whom it was started of a beneficial use of his property or for the purpose of forcing a settlement which has no relation to the merits of the claim. Obviously, these concepts relate primarily to subjective states of mind which will normally be shown by a wide variety of circumstantial proof. Especially germane to these issues is a determination that the action has colorable merit.

Section 409.1 was enacted to mitigate against and correct abuses in the use of lis pendens. (Howden-Goetzl v. Superior Court (1970) 7 Cal.App.3d 135, 138, 86 Cal.Rptr. 323; Review of Selected 1968 Code Legislation (Cont.Ed.Bar) pp. 60-61; Comment, Abuses of the California Lis Pendens: An Appeal for Legislative Remedy (1966) 39 So.Cal.L.Rev. 108, 108-109; Comment, Does California's Statutory Lis Pendens Violate Procedural Due Process? (1975) 6 Pacific L.J. 62, 70.) Obviously, to permit a lis pendens to cloud the title or real property during the pendency of an underlying action which is blatantly nonmeritorious would be contrary to legislative intent. Moreover, if the underlying lawsuit is totally meritless, that fact is strong circumstantial evidence which is highly relevant on the question of whether the lawsuit was commenced and the lis pendens filed primarily because of hostility or ill will, was initiated solely for the purpose of depriving the person against whom it was started of the beneficial use of his property or for the purpose of forcing a settlement having no relation to the merits of the action.

At the same time, it cannot be logically concluded that the Legislature intended to resolve the issue of good faith and proper purpose solely upon the merits of the action or that it intended the expungement procedure set forth in section 409.1 to be a summary judgment procedure or that it contemplated a mini-trial on the merits. If this had been the intention of the Legislature, it could have easily said so either in the initial enactment of section 409.1 or in its 1976 amendment to the provision.

Under section 409.1, the burden is upon the plaintiff (that is, the person filing the underlying action and the lis pendens) to prove by a preponderance of the evidence (affidavits or such other proof as the court may permit) that the action affects the title to or right of possession of real property and was commenced or prosecuted for a proper purpose and in good faith. We hold that, as part of his burden of proof under section 409.1, the plaintiff has the obligation to make out a prima facie case on the merits of his action insofar as it prays for relief which affects the title to or the right to possession of real property. A prima facie case requires an evidentiary showing (evidence or reasonable inferences arising therefrom) that plaintiff is entitled to relief if his evidence is credited. Whether or not plaintiff's evidence should be credited or the reasonable inferences arising therefrom drawn is for the trier of fact to determine at a trial of the underlying action; the trial court should not decide whether it credits plaintiff's evidence or whether it would draw such inferences in the expungement proceeding. However, if the plaintiff fails to make out a prima facie case as defined hereinabove, the court may draw an inference that the action is not brought for a proper purpose or in good faith.⁴

This procedure has the salutary result of allowing the court to give due weight to the obvious importance of not permitting a continuing lis pendens cloud on the title to real property as a result of an apparently meritless action. At the same time, such an approach gives the court latitude to consider and weigh all the evidence on the issue of good faith and proper purpose.⁵

Since there is no time limit within which an expungement motion may be made after the lis pendens has been recorded, the trial court should be liberal in permitting completion of discovery before an expungement motion is actually heard.

Because the trial court applied an improper standard in determining whether the lis pendens should have been expunged, the writ will issue to permit the respondent court to redetermine the issue by utilizing the standards set forth herein. Moreover, since the parties were also not cognizant of these pronouncements, it is fair and appropriate that the respondent court permit them to make additional proof at the new hearing.

Let a writ of mandate issue directing the Superior Court of San Luis Obispo County to set aside its order expunging the lis pendens recorded November 9, 1978, and to hold a new hearing in accordance with this opinion.

Each party shall bear its own costs in this proceeding.

I would affirm the trial court. I believe the court below used the proper standard, and that there is a need to more fully articulate that standard in order to aid the judges who must apply it.¹ The trial judge followed the only interpretation of section 409.1 available to him, namely, the approach enunciated in Nash v. Superior Court (1978) 86 Cal.App.3d 690, 150 Cal.Rptr. 394. Mr. Justice Jefferson dissented in that case. The majority of this court now purports to follow that dissent. For the reasons set forth, I respectfully disagree.

The critical question in this case centers upon the interpretation of Code of Civil Procedure section 409.1, and particularly the words “for a proper purpose and in good faith.”

Before 1976, Code of Civil Procedure section 409.1 provided that the party desiring to expunge a lis pendens had to present Clear and convincing proof that the party recording the notice had commenced or prosecuted the action For an improper purpose and not in good faith. In 1976 a new statutory scheme was enacted. The one who filed the lis pendens now has the burden of proof under section 409.1. Before 1976, the burden was upon the one who would expunge the lis pendens. The quantum of evidence is now by a preponderance of the evidence; before 1976, it was by clear and convincing proof. The current provision demands that the action be brought for a proper purpose and in good faith. Before 1976, it had to be shown that the action was for an improper purpose and not in good faith.

This court now holds that the proper interpretation of “proper purpose” and “good faith” was made in the dissenting opinion in Nash v. Superior Court, supra, 86 Cal.App.3d at page 704, 150 Cal.Rptr. at page 403, “. . . as constituting the very reverse of the terms ‘an Improper purpose’ and ‘Not in good faith’ as those latter terms are interpreted by the United Professional Planning court.”

Holding that the definitions of good faith and proper purpose are the very reverse of the terms “improper purpose” and “not in good faith,” as interpreted by the court in United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 388-389, 88 Cal.Rptr. 551, will mean that a lis pendens will not be expunged if a court finds the plaintiff in the underlying action himself believed that his claim was valid (good faith) and the proceedings were (1) not initiated because of hostility or ill will, or (2) not initiated solely for the purpose of depriving the person against whom they were initiated of a beneficial use of his property, or (3) for the purpose of forcing a settlement which has no relation to the merits of the claim (proper purpose).

There are three reasons which support a broader interpretation of the terms “proper purpose” and “good faith” and demonstrate why “good faith” was meant to encompass more than a mere subjective belief on the part of the plaintiff that he has a valid cause of action.

First, adoption of the narrow interpretation of good faith that is, the claimant's subjective belief in the validity of his actions does not square with one of the policies behind the 1976 amendment to section 409.1.

Before the 1968 adoption of expungement legislation (Code Civ.Proc., s 409.1), commentators had criticized the fact that once the lis pendens appeared on the record, regardless of the merits of the action which warranted it, the land became inalienable. (Comment, Abuses of the California Lis Pendens; An Appeal for Legislative Remedy (1966) 39 So.Cal.L.Rev. 108, 108-109.) Prior law provided no meaningful prejudgment procedure for testing the validity of the recording party's claim; thus, it encouraged unjust out-of-court settlements by those anxious to be rid of clouds on title. (Comment, Does California's Statutory Lis Pendens Violate Procedural Due Process? (1975) 6 Pacific L.J. 62, 81-82.)

The 1968 enactment placed the burden upon one who would expunge a lis pendens to show to the satisfaction of the court, by clear and convincing proof, that the party recording the notice “has commenced or prosecuted the action for an improper purpose and not in good faith.”

The 1968 enactment was criticized for placing the burden on the moving party, because it “is difficult to carry, and this, together with the narrow judicial construction of the elements to be proved, leads to the conclusion that a motion to expunge under subdivision (b) would be successful only in cases of flagrant abuse of the judicial process. (Citations.)” (Comment, Does California's Statutory Lis Pendens Violate Procedural Due Process?, supra, 6 Pacific L.J. 62, 70.) It is apparent that there was no meaningful prejudgment relief granted under Code of Civil Procedure section 409.1 before the 1976 modification. (See Id., at pp. 81-82.)

Urged to do so by a proposal adopted by the State Bar of California (State Bar of Cal., 1974 Conf.Res. 9-10), the Legislature attempted to eliminate the constitutional infirmities in former section 409.1 by shifting the burden of proving the validity of the claim onto the recording party by a preponderance of the evidence. (Stats.1976, ch. 27, s 1, p. 42; Lis Pendens Expungement: Comment, Sen. Com. on Judiciary (1975-1976 Reg.Sess.) legislative analysis of Sen. Bill No. 210 (Beilenson).) Legislative analysis of the 1976 amendment considered by the Senate Committee on the Judiciary stated that the bill “would generally . . . (e)xpand the effect of expungement under Section 409.1.” (Lis Pendens Expungement: Comment, Sen. Com. on Judiciary, Supra.)

Use of the United Professional Planning test of “not in good faith” as the test of “good faith” will mean that a motion to expunge under section 409.1 will be successful only in cases of Flagrant abuse of the judicial process. (See Comment, Does California's Statutory Lis Pendens Violate Procedural Due Process?, supra, 6 Pacific L.J. 62, 70.) This will not further the legislative purpose of increasing expungement. Unless a broad interpretation is given the words “good faith” and “proper purpose,” the 1976 amendment will really have made no change at all. Certainly no more expungements will be granted than were granted between 1968 an 1976. Thus, it seems clear the Legislature intended to encourage some form of hearing requiring the recording party to establish that his underlying claim is At least substantial and properly motivated. (See Id., at pp. 82-83.)

Second, the majority opinion in Nash supports the conclusion that some adjudication of the claim's meritorious nature was intended under the 409.1 procedure.

In the Nash case, the court sustained the lower court's expungement order on the following grounds:

“Upon this record we cannot say that the trial court abused its discretion. At the outset, there was a contract entered into with a buyer whose ability to perform was in doubt. Along the way she found she could not borrow a sufficient amount, and brought in another party to assist her. Time was extended by an agreement which contained a firm and legally effective deadline. (Sept. 20, 1977.) The purchase money was neither paid nor tendered. The buyers then sued for specific performance and damages, accusing the sellers and others of a conspiracy to hinder the buyers' performance. When the buyers were called upon to advance proof of their good faith and proper purpose, their evidence gave the trial court good reason to be skeptical. Although they had the opportunity to take depositions, and did depose an officer of the escrow company, the buyers have produced no evidence in support of their theory that the escrow was mishandled. Finally, the buyers have not come forward with any evidence that any lending institution had been willing to lend them $160,000 on the terms the buyers could and would accept, although there should have been no difficulty in proving the fact if it was a fact.” (Nash v. Superior Court, supra, 86 Cal.App.3d at p. 701, 150 Cal.Rptr. at p. 400; emphasis added.)

The dissent in Nash recognized that the majority definition of “good faith” under Code of Civil Procedure section 409.1 in effect created “a procedure for a summary judgment of the underlying action between the parties.” (Id., at p. 703, 150 Cal.Rptr. at p. 402 (dis. opn. of Jefferson, J.).) The majority approach in Nash, which puts the burden on the petitioner to establish in the expungement hearing the legal validity of a cause of action in his underlying complaint by a preponderance of evidence, comports with one of the legislative purposes behind amended section 409.1.

The trial court in this case hinged its expungement on the fact that buyer did not state an action for specific performance because of buyer's failure to timely close escrow. Thus, it applied a broad interpretation of the good faith requirement.

Notwithstanding that Nash condoned Some assessment of a claim's validity when reviewing the lis pendens, the dissent in Nash correctly stated that section 409.1 “is obviously not designed to be a trial on the merits.” (Nash v. Superior Court, supra, 86 Cal.App.3d at p. 703, 150 Cal.Rptr. at p. 401 (dis. opn. of Jefferson, J.).) But Nash did not provide an articulable standard for determining what procedure other than a trial should be followed to decide when a claim is commenced “in good faith.”

The proper standard of procedure may be found from observing the similarity between 409.1 expungement hearings and summary judgment proceedings. Section 409.1 allows a court to determine expungement “on the affidavits and counteraffidavits on file and upon such other proof as the court may permit.” Summary judgment under Code of Civil Procedure section 437c, which is a motion contending that the action has no merit or that there is no defense thereto, is supported or opposed “by affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken.” (Code Civ.Proc., s 437c.) In addition, the 409.1 expungement hearing and the summary judgment proceeding have similar purposes.² Neither Tries issues. Each merely determines whether factual issues justify continuance of the commenced procedure. In view of these similarities, the standard governing summary judgment should be applied to the determination of good faith under section 409.1. That standard places upon the filing party the burden of showing by a preponderance of evidence through the proof submitted, That there is a triable issue of material fact in the cause of action; that the other side is not entitled to judgment as a matter of law. (See Code Civ.Proc., s 437c.) As applied to lis pendens, it means that the party who files a lis pendens must demonstrate that there will be some merit to the claim specifically, enough merit to proceed to a trial on factual issues. Applying this test to petitioner Landes Construction Company's situation, it appears the trial court decided that petitioner failed to prove, By a preponderance of evidence, that it was entitled to a trial for specific performance.

It is true that the standard supposes pleadings and discovery to have progressed far enough that an intelligent ruling can be made. Trial judges can readily postpone premature motions so that proper judgments can be made. Nonetheless, such rulings can come far ahead of trial.

A third reason also buttresses the view that “good faith” entails more than a party's belief in the validity of his claim. The pre-1976 version of section 409.1 was modeled upon sections 6514 and 6515 of the New York Civil Practice Law and Rules, which in turn were derived from New York Civil Practice Act section 123. The New York act provides for expungement on a finding of lack of good faith alone. (See United Professional Planning, Inc. v. Superior Court, supra, 9 Cal.App.3d at p. 388, fn. 6, 88 Cal.Rptr. 551.) In Sunshine v. Ainspan (N.Y.Sup.Ct.) 39 Misc.2d 292, 240 N.Y.S.2d 449, 451-452, the court held that a claim underlying a lis pendens was not brought in good faith when the plaintiff did not sufficiently show the existence of a realty contract in a specific performance action. The court was interpreting the good faith requirement as set forth in the New York Civil Practice Act section 123. Since the California Legislature based its 409.1 expungement procedure on New York legislation, the fact that New York courts have said good faith should be tested Objectively rather than subjectively supports the concept that the term should be interpreted in California to require more than a party's subjective belief in an action's validity.

How would such a rule apply to the facts here?

One who was not a party to the original contract which plaintiff buyer seeks to enforce moved to expunge the lis pendens. From a practical standpoint, as in a summary judgment motion by a defendant, the affidavits and declarations of such a moving party would have to show there was no triable issue of fact. The burden then shifts to the recording party to demonstrate that there is a triable issue of fact. In the absence of proof of a triable issue of fact, the expungement would be granted.

Despite its allegiance to the concept of the determination of the subjective state of plaintiff's mind, the lead opinion agrees that whether “the action has colorable merit” is germane. Other statements in the majority view indicate the importance which is attached to the merits of the action. Yet, the majority shies away from finding the requirement of an objective standard which seems implicit in the Legislature's action.

The majority's test that “the plaintiff has the obligation to make out a prima facie case on the merits of his action” sounds remarkably like a summary judgment standard. The test should forthrightly measure the merits of the action by a clear objective standard.

Such a standard, when applied here, reaches the same result as did the trial court. The documents before the lower court do not supply the prima facie proof to show that an issue remains before the trial court.

I would deny the writ.

FOOTNOTES

1.  All code references are to the Code of Civil Procedure unless otherwise indicated.The petition is authorized by section 409.4.

2.  Since the court found that the Sansones were not bona fide purchasers, their rights are solely derivative and can rise no higher than the rights of the sellers.

3.  Section 409.1 was amended into its present form in 1976. The statute before then required the party moving to expunge the lis pendens to show by clear and convincing evidence that the person recording the lis pendens had commenced or prosecuted the action “for an improper purpose and not in good faith.” The shifting of the burden of proof to the recording party by the 1976 amendment was made to eliminate any unconstitutional infirmity in the section. (Stats.1976, ch. 27, s 1, p. 42; Comment, Sen. Com. on the Judiciary (1975-1976 Reg.Sess.) legislative analysis of Sen. Bill No. 210 (Beilenson) p. 5.)

4.  Manifestly this does not mean “that a motion to expunge will be successful only in cases of flagrant abuse of the judicial process” as suggested by our dissenting colleague.

5.  In this regard we cannot agree with the majority decision in Nash v. Superior Court, supra, 86 Cal.App.3d 690, 150 Cal.Rptr. 394. In that case, the court denied mandate to direct the trial court to set aside its order expunging a lis pendens. The lis pendens had been filed by a buyer seeking specific performance of an agreement to convey real property. The evidence on the motion showed that the buyer had not tendered the purchase price by the date specified in the agreement. Without discussing the statutory good faith and proper purpose language, the court concluded that the trial court did not abuse it's discretion because the plaintiff could not ultimately prevail on the merits of the action. Thus, the court in effect conducted a trial of the action on the merits when it considered the motion to expunge.

1.  Trial judges trying to apply the correct law will now find a majority in the Second District and a dissent in the Fifth District supporting one view (i. e., majority opinion in Nash v. Superior Court (1978) 86 Cal.App.3d 690, 150 Cal.Rptr. 394); a majority in the Fifth and a dissent in the Second supporting the other view (i. e., dissenting opinion in Nash ). Either the Supreme Court or the Legislature should rescue trial judges from such a dilemma.

2.  The 409.1 expungement procedure was designed to prevent a needless lis pendens from clouding title to property. (See Nash v. Superior Court, supra, 86 Cal.App.3d at p. 700, 150 Cal.Rptr. 394; Comment, Abuses of the California Lis Pendens: An Appeal for Legislative Remedy (1966) 39 So.Cal.L.Rev. 108, 108-109.) Similarly, the summary judgment statute was drafted in order to expedite litigation by the elimination of needless trials. (See Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 625, 157 Cal.Rptr. 248; Exchequer Acceptance Corp. v. Alexander (1969) 271 Cal.App.2d 1, 11, 76 Cal.Rptr. 328; Jack v. Wood (1968) 258 Cal.App.2d 639, 646, 65 Cal.Rptr. 856.)

GEO. A. BROWN, Presiding Justice.

HOPPER, J., concurs.