Burger

By petition for writ of mandate Burger, a defendant in a civil action, seeks review of an order denying his motion to expunge the lis pendens against real property he owns. We hold that the action in which the lis pendens was recorded was not shown to have affected the title or the right of possession of real property within the meaning of Code of Civil Procedure section 409. The lis pendens should have been expunged.

The lis pendens describes two parcels of a resort development in Santa Cruz County known as Brookdale Lodge. One parcel is adjacent to Highway 9 on the north (the Inn) and the other is across the highway to the south (the Lodge). Burger acquired title to both the Inn and the Lodge in 1975. In 1977 one Gus entered into an agreement to buy the Inn and the Lodge from Burger. In March 1978 Gus transferred the Inn back to Burger and Burger then leased the Inn back to Gus.

In August 1979 real party in interest Living Love Church, Inc. (Church) entered into a written agreement with Gus by the terms of which (1) Church would lease the Inn from Gus, (2) Gus would repair and remodel the Inn in accordance with agreed plans for an agreed price to be paid by Church,…