Expunging a Lis Pendens by Posting a Bond

Updated on September 27, 2023

In many of the real property cases our Los Angeles based real estate attorneys handle, the plaintiff records a lis pendens to secure their real property claim involving the property at issue.   A lis pendens, otherwise known as a notice of pendency of action, is a pre-judgment lien recorded in the County Recorder’s office that puts the world on notice that there is a matter affecting record title. It also means that subsequent transfers or liens do not have priority over the plaintiff’s claim.

Often times, the party whose property is subject to the lis pendens will want it removed. The most common basis to remove the lis pendens is by showing that the plaintiff either does not have a real property claim (Code of Civil Procedure Section 405.31)  or by showing that the plaintiff cannot establish its “probable validity” of prevailing on its claim by a “preponderance of the evidence” (Code of Civil Procedure Section 405.32)

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If the plaintiff is unable to use one of the two methods described above to expunge the lis pendens, the plaintiff can also consider a third option: bonding around the lis pendens. Even if the “real property claim” has a “probable validity”, a lis pendens can be expunged if the court finds “adequate relief” can be “secured to the claimant by the giving of an undertaking” (Code of Civil Procedure Section 405.33).

Here is exactly what Section 405.33 provides:

“In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the real property claim has probable validity, but adequate relief can be secured to the claimant by the giving of an undertaking. The expungement order shall be conditioned upon the giving of the undertaking of such nature and in such amount as will indemnify the claimant for all damages proximately resulting from the expungement which the claimant may incur if the claimant prevails upon the real property claim. In its order conditionally expunging the notice, the court shall set a return date for the moving party to show fulfillment of the condition, and if the moving party fails to show fulfillment of the condition on the return day, the court shall deny the motion to expunge without further notice or hearing. Recovery may be had on the undertaking pursuant to Section 996.440.

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For purposes only of determining under this section whether the giving of an undertaking will secure adequate relief to the claimant, the presumption of Section 3387 of the Civil Code that real property is unique shall not apply, except in the case of real property improved with a single-family dwelling which the claimant intends to occupy.”

For assistance with your real property matter, and matters involving expunging a lis pendens, contact us today to inquire about a free 30 minute consultation at (310) 954-1877, or by email at [email protected]. You can also send us a message by using our contact form.

By Zachary Schorr, esq.