Hilberg

In this proceeding, we consider whether respondent superior court abused its discretion in denying petitioners’ motion to expunge a lis pendens. (Code Civ. Proc., § 409.1.) We hold that the court erred in its refusal to give due consideration to evidence that suggested that there was no merit in the complaint, and shall grant the petition for a writ of mandate.

Facts

Petitioners Clinton Hilberg and Lorraine Hilberg (hereafter referred to as Hilbergs) are defendants in a complaint for specific performance of a contract to purchase real property brought against them by real party in interest, Eddie Mendrin (hereafter referred to as Mendrin). Mendrin alleges that the Hilbergs agreed to sell certain real property to him. It is averred that, on March 19, 1986, he gave notice of the exercise of his option to purchase Hilbergs’ property, placed $5,000 into escrow, but Hilbergs have refused to comply with the terms of the option agreement. Mendrin filed a lis pendens against the property.

On July 18, 1989, a hearing on Hilbergs’ motion to expunge was held. They asserted that there was a patent lack of merit in Mendrin’s lawsuit, and the Hilbergs presented statements made by…