Biddle v. Superior Court

In Biddle v. Superior Court (1985) 170 Cal.App.3d 135, 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 notice requirement is intended to assure that property owners receive prompt notice of the recording of a lis pendens. No plaintiff has the right to ambush a property owner by surreptitiously recording a lis pendens. In this case, however, petitioners substantially complied with the service requirement and unquestionably conveyed prompt actual notice to the defendants, thereby satisfying the purpose of the statute. ... We must not 'become immersed in the various aspects of statutory construction and lose sight of the overall objectives of the statutes.' Since actual notice is the heart of the mailing requirement, slavish adherence to the technical requirements of service would defeat the overall legislative objective. "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. " (Biddle v. Superior Court, supra, 170 Cal.App.3d at pp. 137-138.)