Coppinger

Diana and Donald Coppinger seek review by writ of mandate of an order denying their motion to expunge a notice of lis pendens recorded by Diane McKay. (See Code Civ. Proc., § 409.4.) For convenience, the Coppingers are referred to as defendants rather than petitioners and real party in interest McKay is referred to as plaintiff.

Plaintiff has not made a return to the petition, but a writ petition “cannot be granted by default.” (Code Civ. Proc., § 1088.) In the absence of a return, all proper allegations of the petition are deemed admitted and only legal issues remain for decision. (Code Civ. Proc., § 1094. See Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 526-527 [ 102 Cal.Rptr. 45 ].) Plaintiff has submitted points and authorities addressing the legal issues.

In 1980 defendants were the owners of a one-story stucco frame residence at 16 Longstreet in Irvine, built within the preceding three years by Warmington Development, Inc. In June 1980, a termite inspection disclosed that termites were entering the wall between the living and dining rooms by a crack in the concrete slab. The infestation was treated by drilling through the slab and injecting chemicals…