How To Expunge A Lis Pendens in California
A lis pendens (or Notice of Pending Action) is recorded with the County when a real estate lawsuit affecting the ownership or possession of real property is filed. It is only meant to provide notice but it can end up blocking a sale or a refinance. Here is a guide to getting rid of the lis pendens.
What Are The Two Types of Expungement Motions?A real estate attorney should seek expungement if (1) the lawsuit does not plead a real property claim, or (2) the plaintiff cannot establish that he or she will win on a claim relating to ownership or possession of the property. These two different approaches involve two very different motions. Many litigation attorneys are unfamiliar with the distinction but an experienced real estate litigation attorney can determine the best approach to expunging the lis pendens.
Motion #1: No real property claimThe first motion is akin to a demurrer and the court will engage in a demurrer-like analysis. The court is simply looking at whether the complaint on its face pleads a claim relating to ownership or possession of property. This motion will not require evidence. Real property claims supporting a lis pendens usually involve specific performance or quiet title causes of action. Lawsuits for damages or a lien would not support a lis pendens.
Motion #2: No Probability of PrevailingThe second motion is more akin to a mini-trial where the court considers the evidence and the arguments of both parties and then makes a decision. The trial attorney must submit admissible evidence, including authenticated documents and proper declarations, which show why the lis pendens is either appropriate or should be expunged. Remember that the the court is looking at whether the plaintiff can establish a right to possession or ownership. The party defending the lis pendens bears the burden of proof and must show by a preponderance of the evidence the probable validity of the real property claim.