1

Filed 7/14/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

J.A. CARR,

Plaintiff and Appellant,

 v.

RONALD A. ROSIEN et al.,

Defendants and Respondents.

E060166

(Super.Ct.No. RIC1112993)

OPINION

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. 

Affirmed.

Simoneaux Law Firm and Maggie R. Simoneaux-Cuaso for Plaintiff and 

Appellant.

John Clark Brown, Jr. for Defendants and Respondents.
2

John 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.

We will hold that, under the applicable statutes, the lis pendens had to be mailed to 

Colón‟s address as shown on the assessor‟s roll, regardless of whether that address was 
3

actually valid; because this was not done, the lis pendens is void, not only as against 

Colón, but also as against Lopez and Rondo.

I

FACTUAL BACKGROUND

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:

“c/o Raymond Gaitan

“P.O. Box 2224

“Oceanside, CA 92054” (Capitalization altered.)
4

On June 1, 2006, a legal assistant in Carr‟s attorney‟s office contacted 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.1 “He either did not have or would not provide . . . a current address for either of 

them.”2

On October 13, 2006, the deed to Lopez was finally recorded.

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.

 

1 There is no evidence that Carr (or anyone acting on his behalf) ever 

checked the assessment roll. Carr testified that he probably determined that Ortiz and 

Colón were the record owners by having a title search done. The legal assistant testified 

that she probably got Gaitan‟s contact information from the State Bar website.

2 Carr asserts that Gaitan “had no forwarding address” for Ortiz and Colón. 

The record, however, merely indicates that Gaitan declined to provide the address; it does 

not indicate the reason.
5

II

PROCEDURAL BACKGROUND

Carr filed this action in 2011. The named defendants are Lopez, Rondo, and 

Ronald Rosien.3 The complaint asserted a cause of action to quiet title, along with causes 

of action for slander of title, cancellation of written instrument, intentional interference 

with prospective economic advantage, intentional interference with contract, and 

declaratory relief.

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.

A. General Legal Principles.

“„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 property described in the notice. 

[Citation.] Any taker of a subsequently created interest in that property takes his interest 

subject to the outcome of that litigation.‟” (Campbell v. Superior Court (2005) 132 

Cal.App.4th 904, 910-911.) A lis pendens may be filed in any action in which a real 

 

3 Rosien is the principal in Rondo. Because any claim he may have to lot 

122 is derivative of Rondo‟s, we will disregard his separate status. (See Hoff v. Vacaville 

Unified School Dist. (1998) 19 Cal.4th 925, 931, fn. 1.)
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property claim is alleged. (Code Civ. Proc., § 405.20.) However, a lis pendens must be 

filed in a quiet title action. (Code Civ. Proc., § 761.010, subd. (b).)

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-

449-11-451.) First, Civil Procedure section 764.030 (section 764.030) provides:

“The judgment in [a quiet title] action is binding and conclusive on all of the 

following persons . . . :
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“(a) All persons known and unknown who were parties to the action and who have 

any claim to the property, whether present or future, vested or contingent, legal or 

equitable, several or undivided.

“(b) Except as provided in Section 764.045, all persons who were not parties to the 

action and who have any claim to the property which was not of record at the time the lis 

pendens was filed . . . .” (Code Civ. Proc., § 764.030.)

Next, Civil Procedure section 764.045 (section 764.045) provides:

“[T]he judgment [in a quiet title action] does not affect a claim in the property . . . 

of any person who was not a party to the action if any of the following conditions is 

satisfied:

“(a) The claim was of record at the time the lis pendens was filed . . . .

“(b) The claim was actually known to the plaintiff or would have been reasonably 

apparent from an inspection of the property at the time the lis pendens was filed . . . .”

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, [Fourth Dist., Div. Two].) However, 

“[t]he interpretation of a statute and its application to undisputed facts are questions of 
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law subject to de novo review. [Citation.]” (Rialto Citizens for Responsible Growth v. 

City of Rialto (2012) 208 Cal.App.4th 899, 917 [Fourth Dist., Div. Two].)

We will discuss the application of these principles first to Colón, and then to 

Lopez and Rondo.

B. Carr Versus Colón.

In 1851, the Legislature enacted section 27 of the California Practice Act, which 

provided for a lis pendens. (Stats. 1851, ch. 5, § 27, p. 5.) 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 latest county assessment roll,” 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, p. 4100-4101.) However, the mailing 

requirement — and the penalty for failing to comply with it — remained unchanged.

The parties have not called our attention to any legislative intent material relevant 

to the mailing requirement. However, it seems reasonable to conclude that the mailing 

requirement is intended to make sure that all owners of the property, and all adverse 
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parties claiming an interest in the property, are aware of the lis pendens. This, in turn, 

serves two purposes. First, if there are grounds for expungement of the lis pendens, it 

enables such persons to file a motion to expunge. (See Cal. Lis Pendens Practice 

(Cont.Ed.Bar 2d ed. 2001) § 2.31, p. 69.) Second, even if there are no grounds for 

expungement, it enables such persons to take the lis pendens into account; for example, 

absent the requisite notice, an owner might negotiate a deal to sell the property to third 

parties, only to see it fall apart when the lis pendens is discovered.

Here, Colón‟s address was listed on the assessment roll. Nevertheless, Carr‟s 

counsel did not mail the lis pendens to that address. Instead, he submitted a declaration 

stating that Colón‟s address was unknown. We do not believe this satisfies the mailing 

requirement. Admittedly, the statute does not expressly require mailing to the address

shown on the assessment roll. It also does not expressly require the claimant to make any 

particular efforts to discover an owner‟s address. It allows the claimant, in lieu of 

mailing, to file a declaration that “there is no known address for service on an adverse 

party or owner . . . .” (Code Civ. Proc., § 405.22, italics added.)

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 . . . .” 
10

(See Cal. Lis Pendens Practice (Cont.Ed.Bar 2d ed. 2001) § 2.31, pp. 68-69.) Once the 

claimant does check the assessment roll, the owners‟ addresses, as listed therein, become 

“known.” It is possible for an owner‟s address not to be listed in the assessment roll 

because it is unknown to the assessor. (See Rev. & Tax. Code, § 602, subd. (a).) 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,4so that mail sent to that address would not have reached 

Gaitan. He also argues that Gaitan no longer represented Colón and had refused to help 

locate her; thus, even if the lis pendens had reached Gaitan, it would not have reached 

Colón. However, we can never know for certain, precisely because Carr never tried. 

Perhaps it would have been forwarded to Gaitan, and perhaps Gaitan would have 

forwarded it to his former client.5 In any event, the statute makes no exception for cases 

 

4 There was no evidence of this below. However, Lopez and Rondo concede 

that “the Assessor‟s roll incorrectly listed Mr. Gaitan‟s address in Oceanside rather than 

Orange . . . .”

5

In his reply brief, Carr also asserts that the address on the assessor‟s roll 

was his address, so that the lis pendens would have gone to him. While there was some 

evidence of this, the trial court was not required to accept it.

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 

[footnote continued on next page]
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in which the address on the assessor‟s roll is incorrect. This favors the claimant, by 

giving it a safe harbor: all it has to do is mail the lis pendens to the address shown on the 

assessor‟s roll; it does not have to make sure the address is valid. If a properly addressed 

lis pendens is returned as undeliverable, that is not the claimant‟s problem.

Carr also relies on Biddle v. Superior Court (1985) 170 Cal.App.3d 135. The 

Code 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 

(Cont.Ed.Bar 2d ed. 2001) Code Comments, p. 200; see also 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.)

 

[footnote continued from previous page]

hearsay. (Evid. Code, § 1200, subd. (b); see also 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).
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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. . . . [W]e 

must not „become immersed in the various aspects of statutory construction and lose sight 

of the overall objectives of the statutes.‟ [Citation.] 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. 

[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 Code Comment refers only to the waiver aspect of Biddle. Thus, there 
13

is some doubt as to whether the Legislature also intended to preserve its substantial 

compliance aspect. (See Cal. Lis Pendens Practice (Cont.Ed.Bar 2d ed. 2001) § 2.31, 

p. 70.)

We need not decide this point. Even assuming that substantial compliance with 

section 405.22 remains sufficient, Carr did not substantially comply. “„Substantial 

compliance . . . means actual compliance in respect to the substance essential to every 

reasonable objective of the statute.‟ [Citation.]” (ABBA Rubber Co. v. Seaquist (1991) 

235 Cal.App.3d 1, 12 [Fourth Dist., Div. Two].) “Substantial compliance contemplates 

that there is at least some compliance with all of the statutory requirements. [Citation.]” 

(Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 769 [Fourth Dist., Div. Two].) 

Here, Carr did not mail the lis pendens to Colón at any address, and there is no evidence 

that Colón ever received it.

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.

We therefore conclude that the lis pendens was void as to Colón.

C. Carr Versus Lopez and Rondo.

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 
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Lopez. Lopez was not a party to the prior action.6 The lis pendens was recorded on May 

18, 2006; Lopez‟s deed was recorded on October 13, 2006. Thus, when the lis pendens 

was filed, Lopez‟s claim was not yet of record. Accordingly, the judgment in the quiet 

title action should be binding on Lopez.

The trial court reasoned that the lis pendens was “void.” Actually, section 405.23 

provides that a lis pendens that is not properly mailed to an adverse party or an owner of 

record is “void and invalid as to [that] adverse party or owner of record . . . .” (Italics 

added.) Colón was both an adverse party and an owner of record when the lis pendens 

was recorded, but Lopez was neither. Does the fact that the lis pendens was void “as to” 

Colón mean that it was also void “as to” Lopez? Or are sections 764.030 and 764.045, 

standing alone, controlling?

To answer this, we turn to general principles of priority. “The interest of a bona 

fide purchaser . . . would be of little value and unmarketable if it were subject to a prior 

claim that is not enforceable against the bona fide purchaser but it becomes enforceable 

against his or her transferee. Therefore, a title or lien held by a bona fide purchaser . . . 

can be conveyed to a grantee or assignee free and clear of a prior unknown interest even 

 

6 The judgment in the prior action purported to quiet title in Carr as against 

“defendants” Ortiz, Colón, and Lopez. However, the record demonstrates that Carr never 

named Lopez in the complaint, Carr never filed a proof of service on Lopez, and Lopez 

never made a general appearance. Carr seems to believe that merely including Lopez‟s 

name in the judgment was sufficient to make the judgment binding on him. However, he 

has forfeited any such contention by failing to support it with reasoned argument and 

citation of authority. (AmeriGas Propane, L.P. v. Landstar Ranger, Inc. (2010) 184 

Cal.App.4th 981, 1001, fn. 4 [Fourth Dist., Div. Two].)
15

if the grantee or assignee does not fulfill the requirements of a bona fide purchaser . . . .” 

(5 Miller & Starr, supra, § 11:52 at pp. 11-189-11-190, fns. omitted; e.g., Jones v. 

Independent Title Co. (1944) 23 Cal.2d 859, 861; Rose v. Knapp (1957) 153 Cal.App.2d 

379, 386.) Here, similarly, the fact that the lis pendens is “void . . . as to” Colón would 

be cold comfort if it nevertheless prevented Colón from conveying good title to third 

parties. We therefore conclude that a lis pendens that is void as to one owner is also void 

as to that owner‟s transferees. Thus, the deed to Lopez has priority over Carr‟s lis 

pendens. For the same reasons, the trust deed to Rondo also has priority.

D. Carr’s Remaining Arguments.

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.) Evidently the Legislature intended a lis 

pendens that is not properly mailed to be void ab initio, without the need for any further 

action.

Significantly, the expungement statutes provide that a lis pendens may be 

expunged on three grounds: (1) “the pleading on which the notice is based does not 

contain a real property claim” (Code Civ. Proc., § 405.31); (2) “the claimant has not 

established by a preponderance of the evidence the probable validity of the real property 

claim” (Code Civ. Proc., § 405.32); or (3) “adequate relief can be secured to the claimant 
16

by the giving of an undertaking” (Code Civ. Proc., § 405.33). They do not provide that it 

may be expunged if it is void for lack of compliance with the mailing requirement. 

Admittedly, it has been held that noncompliance with the mailing requirement is a fourth, 

nonstatutory ground for expungement. (McKnight v. Superior Court (1985) 170 

Cal.App.3d 291, 303.) Nevertheless, the failure to provide for expungement explicitly, 

by statute, strengthens our conclusion that the Legislature did not intend to require that a 

void lis pendens be expunged.

We also note that, if a lis pendens is mailed to one owner but not to another, it is 

void as to the former but not as to the latter. In that situation, it would be unfair to let the 

owner who did not receive notice expunge the lis pendens, so as to render it

unenforceable against the owner who did receive notice. At the same time, however, it 

would be unfair if it remained enforceable against the owner who did not receive notice 

merely because it was not expunged.

Accordingly, here, the lis pendens is void, even though it has never been 

expunged.
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III

DISPOSITION

The judgment is affirmed. Lopez, Rosien, and Rondo are awarded costs on appeal 

against Carr.

CERTIFIED FOR PUBLICATION

RAMIREZ

P. J.

We concur:

McKINSTER

J.

KING

J.