In this blog, we will discuss the general procedure on how to remove, or expunge a lis pendens.
A lis pendens is a written document, recorded with the county recorder that provides constructive notice to subsequent purchasers, transferees, and encumbrancers of a pending lawsuit affecting title to real property. Cal. Civ. Code. § 405.24; Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003.
A lis pendens essentially clouds the title of the real property and interferes or prevents a sale or encumbrance of the property until the litigation has been resolved or the lis pendens has been expunged. Once a lis pendens is recorded, any party, or any nonparty who has an interest in the affected real property, may bring a motion to have the lis pendens expunged. Cal. Civ. Code § 405.30; Palmer v. Zaklama (2003) 109 Cal.App.4th 1367. The California legislature has provided statutory procedures by which alispendensmay be removed because of the potential for abuse and injustice to the property owner. Cal. Civ. Code § 405.30.
Potential Grounds to Remove a Lis Pendens, include:
The lis pendens is “void or invalid” because the requirements of service or recording the affidavit of service are not satisfied. Cal. Civ. Code § 405.23, Rey Sanchez Investments v. Superior Court (2016) 244 Cal. App. 4th 259. A failure to properly record, serve, and file a lis pendens may render the lis pendens “void and invalid.” Cal. Civ. Code § 405.23. When the basis for challenging the lis pendens is that it is “void and invalid” for noncompliance with the service and recording requirements of the lis pendens statute, the person seeking expungement has the burden of proof. Cal. Civ. Code § 405.23; Cal. Evid. Code § § 500, 550.
The action does not involve a real property claim. Cal. Civ. Code § 405.31, Kirkeby v. Superior Court of Orange County (2004) 33 Cal.4th 642. A “real property claim” includes a cause of action in the 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 the statute by any regulated public utility. Code Civ. Proc. § 405.4. When the person moving for expungement states that the pleadings do not set forth a real property claim, the claimant who has recorded the lis pendens has the burden of proof to establish that the pleading on which the action is based alleges a real property claim. Cal. Civ. Code §§ 405.30, 405.31; Cal. Evid. Code §§ 500, 550.
The claimant has not proven the probable validity of the claim by a preponderance of the evidence. Cal. Civ. Code §§ 405.32,Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003. When an expungement is sought on the basis that the real property claim lacks probable validity, the claimant who filed the lis pendens bears the burden of proof by a preponderance of the evidence that the claim has probable validity. Cal. Civ. Code §§ 405.30, 405.32.
Even if the claimant alleges a real property claim and proves its probable validity, monetary relief may be adequate in lieu of a lis pendens. Cal. Civ. Code §§ 405.33.This means that even though the claimant has pled, and is likely to prevail upon, their real property claim, the claim can adequately be compensated with money. Thus, a lis pendens is unnecessary. The party moving to expunge on this basis has the burden of proving that an undertaking will adequately secure the claimant’s recovery. Cal. Civ. Code § 405.30.
After a prior expungement motion granted on condition that the claimant files an undertaking, the claimant failed to file an undertaking ordered by the court as a condition to maintaining the lis pendens. Cal. Civ. Code § 405.34, 405.31, Kirkeby v. Superior Court of Orange County (2004) 33 Cal.4th 642.
After a lis pendens is expunged, a party may not file another lis pendens on the property without leave of court. Cal. Civ. Code § 405.36,Ward v. Superior Court (Beverlywood Homes Ass’n)(1997) 55 Cal.App.4th 60.
After trial, if the party burdened by the lis pendens wins and gets judgment entered in their favor, then the lis pendens must be expunged unless the trial court is willing to find its own decision will probably be reversed on appeal. See Mix v. Superior Court (Behniwal) (2004) 124 Cal.App.4th 987.
Furthermore, the party who prevails on the motion to expunge the lis pendens may be entitled to attorney’s fees and costs unless the court finds that the other party acted with substantial justification or other circumstances make the imposition of sanctions unjust.
The process to expunge a lis pendens can be tremendously complicated. It requires the expertise of a skilled real estate attorney. At Schorr Law, our real estate attorneys have extensive experience with lis pendens, expunging lis pendens, and the use of lis pendens. Please contact us today to inquire about a free 30-minute consultation at (310) 954-1877, or by email at firstname.lastname@example.org.