A motion to expunge a Lis Pendens in California is the topic of this blog post
The technical name for a Lis Pendens is a notice of pendency of action. The term Lis Pendens is more commonly used and is Latin for pending lawsuit.
The statutes governing a Lis Pendens in California are found in Code of Civil Procedure sections 405.1 through 405.39.
Code of Civil Procedure § 405.20 authorizes the recording of a Lis Pendens and Code of Civil Procedure § 405.4 states that, “Real property claim” means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.”
Law authorizing a motion to expunge a Lis Pendens in California.
A motion to expunge a Lis Pendens in California is authorized by Code of Civil Procedure section 405.30 which states that,
“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.”
Burden of proof on motion to expunge a Lis Pendens in California.
Once the motion to expunge has been filed the burden is on the plaintiff to show that at least one of the causes of action of their complaint states a real property claim. The Court must order the notice expunged if the complaint does not state a real property claim.
Code of Civil Procedure § 405.31 states that,
“In proceedings under this chapter, the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim.”
Code of Civil Procedure § 405.32 states that,
“In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.”
Grounds for filing a motion to expunge a Lis Pendens in California.
The most common grounds for expunging a Lis Pendens in California are that the complaint does not state a real property claim as required by California law.
Another ground for expunging a Lis Pendens in California is on the grounds that it is void and invalid as the Plaintiff did not comply with the requirements of Code of Civil Procedure § 405.22 which states that, “ Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, 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. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action.”
Code of Civil Procedure § 405.23 states that, “Any 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 and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.”
The recording of a Lis Pendens against a real property clouds the title and may prevent any transfer of the real property. Therefore, the Lis Pendens procedure is abused very frequently.
The California Supreme Court has stated that, Courts have long recognized that “[b]ecause the recording of a lis pendens place[s] a cloud upon the title of real property until the pending action [is] ultimately resolved . . . , the lis pendens procedure [is] susceptible to serious abuse, providing unscrupulous plaintiffs with a powerful lever to force the settlement of groundless or malicious suits.” See Malcolm v. Superior Court (1981) 29 Cal.3d 518, 523, fn. 2, 524 (emphasis in original).
Several California Courts of Appeal have stated in published decisions that the history of the legislation indicates a legislative intent to restrict rather than broaden the application of the remedy.
The California Courts of Appeal have stated in several published decisions that causes of action with equitable liens do not state a real property claim if those causes of action act only as an alternative or collateral means to collect money damages as the real purpose of the statutes is to provide notice of pending litigation and not to provide plaintiffs with more leverage for use in negotiating a settlement.
Causes of action for money only do not state a real property claim in California.
Attorney’s fees and costs available on a motion to expunge a Lis Pendens in California.
The prevailing party on the motion to expunge is entitled to reasonable attorney’s fees and costs pursuant to Code of Civil Procedure § 405.38 which states that,
“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.”
An experienced litigation attorney can evaluate your situation and determine whether filing a motion to expunge a Lis Pendens is appropriate.
Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).
Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.
Schedule a free consultation today with attorney Nathan Mubasher.
Call (800) 691-2721 and let’s talk about your options.
CONTACT INFORMATION FOR NATHAN MUBASHER:
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