How to expunge a Lis Pendens in California is the topic of
this blog post. The California statute that
authorizes expunging a Lis Pendens in California is 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 California Lis Pendens 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 who 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 can use the link shown below.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
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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.
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