Expunging a Lis Pendens in California

Expunging a Lis Pendens in California is the topic of this blog post.

Expunging a Lis Pendens in California is authorized by the provisions of Code of Civil Procedure section 405.30. 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.

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. There are other grounds although this blog post will focus on situations where the complaint does not state a real property claim.

Code of Civil Procedure section 405.20 authorizes the recording of a Lis Pendens and Code of Civil Procedure section 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.”

The recording of a Lis Pendens against a real property clouds the title and in most cases will prevent any transfer of the real property.  Therefore, the Lis Pendens procedure is abused quite frequently. As a result several California Courts of Appeal have stated 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 held 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.

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.  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.

Attorneys or parties in California that would like to view a portion of a 14 page sample motion to expunge a Lis Pendens containing a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail can use the link shown below.

Sample Motion to Expunge Lis Pendens for California by Stan Burman on Scribd

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.


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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.