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Motion to expunge Lis Pendens in California

A motion to expunge a Lis Pendens in California pursuant to Code of Civil Procedure section 405.30 is the topic of this blog post.   A Lis Pendens is technically known as a notice of pendency of action although the term Lis Pendens is more commonly used, this term is Latin for pending lawsuit. The statutes governing this notice are found in Code of Civil Procedure sections 405.1 through 405.39.

The most common grounds for a motion to expunge a Lis Pendens 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 § 405.20 states that, “A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated. The notice shall contain the names of all parties to the action and a description of the property affected by the action.”

Code of Civil Procedure § 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.”

Because the recording of a Lis Pendens against a real property clouds the title, the Lis Pendens procedure is abused quite frequently. As a result several California Courts of Appeal have held that the history of the lis pendens legislation indicates a legislative intent to restrict rather than broaden the application of the remedy.

The California Courts of Appeal have also 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 a 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 sold by the author can see below

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

To view over 300 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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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