Legal Memorandum: Expunging an Improperly Recorded Lis Pendens

Issue: When will the court expunge an improperly filed ‘notice of pendency of action’?

Area of Law: Litigation & Procedure, Real Estate Law
Keywords: Lis Pendens; Expunge; Real property claim
Jurisdiction: California
Cited Cases: 122 Cal. App. 4th 1388; 151 Cal. App. 3d 1013
Cited Statutes: Cal. Code Civ. Proc. § 405.31, § 405.32
Date: 03/01/2007

A property owner may have removed an improperly recorded lis pendens by bringing a motion to expunge.  See Cal. Code Civ. Proc. § 405.31.  Under the statute, the court “shall” expunge such a notice if it finds either (1) that the plaintiff’s pleadings, on which the lis pendens is based, do not contain a real property claim, id.; or (2) “that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim,” id., § 405.32. .

The burden is on the party that filed the notice of pendency of action to show that it has asserted a real property claim.  Id.

“[T]he majority rule requires the complaint to set forth some cause of action affecting the title or right of possession of the specific real property described in the lis pendens.   When it does not do so the lis pendens becomes a nullity, an unwarranted cloud on the title of the property it describes and the court having jurisdiction of the main action may on proper notice expunge the record of a lis pendens improperly recorded.”

Moseley v. Super. Ct. (1986) 177 Cal. App. 3d 672, 675 [223 Cal. Rptr. 116, 117] (quoting Brownlee v. Vang (1962) 206 Cal. App. 2d 814, 817 [24 Cal. Rptr. 158]).  See Burger v. Superior Court (1984) 151 Cal. App. 3d 1013, 1019 [199 Cal. Rptr. 227, 231] (the plaintiff’s pleading and an unverified declaration were […]