CALIFORNIA CODES
CODE OF CIVIL PROCEDURE
Lis Pendens
405. The definitions in this chapter govern the construction of
this title.
405.1. "Claimant" means a party to an action who asserts a real
property claim and records a notice of the pendency of the action.
405.2. "Notice of pendency of action" or "notice" means a notice of
the pendency of an action in which a real property claim is alleged.
405.3. "Probable validity," with respect to a real property claim,
means that it is more likely than not that the claimant will obtain a
judgment against the defendant on the claim.
405.4. "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.
405.5. This title applies to an action pending in any United States
District Court in the same manner that it applies to an action
pending in the courts of this state.
405.6. In an action by a public agency in eminent domain pursuant
to Title 7 (commencing with Section 1230.010) of Part 3, the
issuance, service, and recordation of a notice of pendency of action
shall be governed by Section 1250.150 and shall not be subject to
Chapter 2 (commencing with Section 405.20).
405.7. Whenever an action is commenced to declare a building
uninhabitable, the plaintiff public agency, at the time of filing the
complaint, shall record in the office of the recorder of the county
in which the building is situated, a notice of the pendency of the
action, containing the names of the parties and a description of the
real property upon which the building affected by the action is
situated.
405.8. Nothing in this title precludes any party from seeking an
attachment, injunction, or other relief in connection with a real
property claim or the expungement of a notice of pending action.
405.20. 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 shall 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.
405.21. An attorney of record in an action may sign a notice of
pendency of action. Alternatively, a judge of the court in which an
action that includes a real property claim is pending may, upon
request of a party thereto, approve a notice of pendency of action.
A notice of pendency of action shall not be recorded unless (a) it
has been signed by the attorney of record, (b) it is signed by a
party acting in propria persona and approved by a judge as provided
in this section, or (c) the action is subject to Section 405.6.
405.22. Except in actions subject to Section 405.6, the claimant
shall, prior to recordation of the notice, cause a copy of the notice
to be mailed, by registered or certified mail, return receipt
requested, to all known addresses of the parties to whom the real
property claim is adverse and to all owners of record of the real
property affected by the real property claim as shown by the latest
county assessment roll. If there is no known address for service on
an adverse party or owner, then as to that party or owner a
declaration under penalty of perjury to that effect shall be recorded
instead of the proof of service required above, and the service on
that party or owner shall not be required. Immediately following
recordation, a copy of the notice shall also be filed with the court
in which the action is pending. Service shall also be made
immediately and in the same manner upon each adverse party later
joined in the action.
405.23. Any notice of pendency of action shall be void and invalid
as to any adverse party or owner of record unless the requirements of
Section 405.22 are met for that party or owner and a proof of
service in the form and content specified in Section 1013a has been
recorded with the notice of pendency of action.
405.24. From the time of recording the notice of pendency of
action, a purchaser, encumbrancer, or other transferee of the real
property described in the notice shall be deemed to have constructive
notice of the pendency of the noticed action as it relates to the
real property and only of its pendency against parties not
fictitiously named. The rights and interest of the claimant in the
property, as ultimately determined in the pending noticed action,
shall relate back to the date of the recording of the notice.
405.30. At any time after notice of pendency of action has been
recorded, any party, or any nonparty with an interest in the real
property affected thereby, may apply to the court in which the action
is pending to expunge the notice. However, a person who is not a
party to the action shall obtain leave to intervene from the court at
or before the time the party brings the motion to expunge the
notice. Evidence or declarations may be filed with the motion to
expunge the notice. The court may permit evidence to be received in
the form of oral testimony, and may make any orders it deems just to
provide for discovery by any party affected by a motion to expunge
the notice. The claimant shall have the burden of proof under
Sections 405.31 and 405.32.
405.31. In proceedings under this chapter, the court shall order
the notice expunged if the court finds that the pleading on which the
notice is based does not contain a real property claim. The court
shall not order an undertaking to be given as a condition of
expunging the notice where the court finds the pleading does not
contain a real property claim.
405.32. In proceedings under this chapter, the court shall order
that the notice be expunged if the court finds that the claimant has
not established by a preponderance of the evidence the probable
validity of the real property claim. The court shall not order an
undertaking to be given as a condition of expunging the notice if the
court finds the claimant has not established the probable validity
of the real property claim.
405.33. 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.
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.
405.34. Subject to the provisions of Sections 405.31 and 405.32, at
any time after a notice of pendency of action has been recorded, and
regardless of whether a motion to expunge has been filed, the court
may, upon motion by any person with an interest in the property,
require the claimant to give the moving party an undertaking as a
condition of maintaining the notice in the record title. However, a
person who is not a party to the action shall obtain leave to
intervene from the court at or before the time the person moves to
require an undertaking. The court may permit evidence to be received
in the form of oral testimony and may make any orders it deems just
to provide for discovery by any affected party. An undertaking
required pursuant to this section shall be of such nature and in such
amount as the court may determine to be just. In its order
requiring an undertaking, the court shall set a return date for the
claimant to show compliance and if the claimant fails to show
compliance on the return date, the court shall order the notice of
pendency of action expunged without further notice or hearing.
Recovery on an undertaking required pursuant to this section may
be had in an amount not to exceed the undertaking, pursuant to
Section 996.440, upon a showing (a) that the claimant did not prevail
on the real property claim and (b) that the person seeking recovery
suffered damages as a result of the maintenance of the notice. In
assessing these damages, the court shall not consider the claimant's
intent or the presence or absence of probable cause.
405.35. No order expunging a notice of pendency of action shall be
effective, nor shall it be recorded in the office of any county
recorder, until the time within which a petition for writ of mandate
may be filed pursuant to Section 405.39 has expired. No order
expunging a notice of pendency of action shall be effective, nor
shall it be recorded in the office of any county recorder, after a
petition for writ of mandate has been timely filed pursuant to
Section 405.39, until the proceeding commenced by the petition is
finally adjudicated. This section imposes no duty on the county
recorder to determine whether the requirements of this section or of
any order expunging a notice of pendency of action have been met.
405.36. Once a notice of pending action has been expunged, the
claimant may not record another notice of pending action as to the
affected property without leave of the court in which the action is
pending.
405.37. After notice and hearing, for good cause and upon such
terms as are just, the court may exonerate or modify any undertaking
required by an order issued pursuant to Section 405.33 or 405.34 or
pursuant to a stipulation made in lieu of such an order. An order of
the court under this section may be made conditional upon the giving
of a new undertaking under Section 405.33 or 405.34.
405.38. The court shall direct that the party prevailing on any
motion under this chapter be awarded the reasonable attorney's fees
and costs of making or opposing the motion unless the court finds
that the other party acted with substantial justification or that
other circumstances make the imposition of attorney's fees and costs
unjust.
405.39. No order or other action of the court under this chapter
shall be appealable. Any party aggrieved by an order made on a
motion under this chapter may petition the proper reviewing court to
review the order by writ of mandate. The petition for writ of
mandate shall be filed and served within 20 days of service of
written notice of the order by the court or any party. The court
which issued the order may, within the initial 20-day period, extend
the initial 20-day period for one additional period not to exceed 10
days. A copy of the petition for writ of mandate shall be delivered
to the clerk of the court which issued the order with a request that
it be placed in the court file.
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