Legal Memorandum: Award of Attorney's Fees and Costs in CA

Issue: When will the court award attorney’s fees in an action to expunge an improperly filed ‘notice of pendency of action’?

Area of Law: Litigation & Procedure, Real Estate Law
Keywords: Attorney's fees; Notice of pendency of action; Action to expunge
Jurisdiction: California
Cited Cases: 179 Cal. App. 3d 1101
Cited Statutes: Cal. Code Civ. Proc. § 405.38
Date: 03/01/2007

An award of attorney’s fees and costs is authorized and should be made for the expense undertaken to remove a lis pendens that was not imposed in accordance with statute and was not based upon a good faith real property claim.  Under the Code of Civil Procedure, an award of attorney’s fees is mandatory unless the court finds that the plaintiff acted with substantial justification, or the imposition of fees and costs would be unjust.  Cal. Code Civ. Proc. § 405.38.  Cf. Menjivar v. Trophy Props. IV DE, LLC, No. C 06-0386 (N.D. Cal. Oct. 10, 2006) (denying the defendant attorneys fees and costs in conjunction with granting the motion to expunge the notice lis pendens, in a case in which the defendant had put the apartment building up for sale, based on no-substantial-justification test).*FN1  See also Askari v. R & R Land Co. (1986) 179 Cal. App. 3d 1101 [225 Cal. Rptr. 285] (owner whose property was subject to notice of pendency of action for six months until expunged was entitled to damages upon proof that it could not sell due to the lis pendens).


 [1] The Menjivar court’s decision not to award attorney’s fees was based on its reasoning that although there was no real property claim, the tenants were not substantially unjustified in believing the lis pendens notice was appropriate.  Menjivar v. Trophy Props. IV DE, LLC, 3:2006cv03086 (N.D. Cal. Oct. 10, 2006).  […]

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