Putting a cloud against real property that is the subject of an ownership dispute is simple, and removing it is complex.

1. GET THAT LIS PENDENS OFF MY PROPERTY! HOW TO EXPUNGE A
LIS PENDENS AND RECOVER YOUR ATTORNEY’S FEES
Putting a cloud against real property that is the subject of an ownership dispute is simple, and removing it
is complex. This is why the lis pendens is a tool often used by litigators as a means of securing a client’s
potential interest in an adverse party’s real property. And this tool can be especially useful for Trust and
Estate litigation practitioners who must secure a beneficiary’s interest in real property during the
pendency of a probate dispute. However, there is a mechanism by which a party can ask the Court to
remove the lis pendens even if the lis pendens was properly recorded so that, for example, real property
can be sold or a loan can be taken against it.
A Lis Pendens May Effectively Preclude Sale or Encumbrances
The purpose of a lis pendens is to give notice
of a claim affecting the subject real property,
to any persons who subsequently acquire an
interest in that property (e.g., subsequent
purchasers or lenders on the property), so that
any judgment in the underlying action will be
binding upon such persons – even if they
acquire their property interest before that
judgment is actually rendered.[1] But a lis
pendens does not prevent the actual sale of
real property, per se. Rather, due to the
ubiquitous use of title insurance by
prospective purchasers to insure title on real property sales (and the certainty that any potential lender will
check title before approving any loan against a property), the cloud created on title from a recorded lis
pendens generally acts to preclude both the sale and any further encumbrances of the affected property for
the duration of the underlying action.
A Showing of a “Real Property Claim” is Mandatory
In order to properly record a lis pendens against real property, the claimant must have made a “real
property claim” in the underlying litigation.[2] A “real property claim” includes a cause 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.[3] Conversely, if the claimant’s only “interest” in the subject real
property is simply an attempt to secure the monetary value of the property as potential payment for a
future judgment (as opposed to a claim which may directly affect the property’s ownership or possession
itself), a lis pendens is not proper and may be expunged.[4]

2. A Lis Pendens Can be Removed, or “Expunged”, Even if it was Validly
Recorded
Under California law, a lis pendens may be expunged by filing a motion with the court based upon a
showing that: (1) the claimant has not made a real property claim in their underlying lawsuit, or (2) the
court determines that the claimant’s interest in the subject real property may be adequately protected by
the posting of an undertaking, or bond.[5] If the claimant has not made a real property claim in the
underlying lawsuit, then the court shall expunge the lis pendens and shall not order an undertaking as a
condition of the expungement.[6]
If, however, the claimant has made a real property claim in the underlying lawsuit, the court may still
order the lis pendens expunged, if adequate relief can be secured to the claimant by the giving of a bond
or undertaking.[7] Any such expungement order shall be conditioned upon the giving of an undertaking of
such nature and amount as will indemnify the claimant for all damages resulting from the expungement
which the claimant may incur if the claimant prevails upon the real property claim.[8]
Determining the Amount of the Undertaking
With respect to undertakings in lieu of a lis pendens – former Code of Civil Procedure (“CCP”) section
409.2 broadly stated that the amount of any such undertaking shall “be to the effect that such prevailing
party will indemnify the other party for all damages which he may incur if he ultimately prevails in the
action.” (Emphasis added). But despite the broad language of former section 409.2, courts interpreted this
language to only include damages that would actually result from the expungement or non-expungement
of the lis pendens.[9] In contrast, the current section 405.33 narrows the applicable language to “all
damages proximately resulting from the expungement which the claimant may incur if the claimant
prevails upon the real property claim.” (Emphasis added.) Thus, the Legislature, in amending the
language of the statute, followed the holding in Elder and confirmed that the amount of the undertaking
extends only to claims for damages resulting from the expungement which are related to the real property
claim and not for any unrelated claims for money damages.[10]
Proposing a Proper Amount of the Undertaking Can Make or Break the
Recovery of Attorney’s Fees
Finally, attorney’s fees are recoverable on a motion to expunge a lis pendens. CCP section 405.38
provides that the court shall award to any party prevailing his reasonable attorney 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 fees and costs unjust.”
The determination of the prevailing party for the purpose of awarding attorney’s fees regarding the
expungement of a lis pendens is not simply a matter of determining whether or not the lis pendens was
expunged or withdrawn. California courts have adopted a practical approach to the determination of the
prevailing party and under such approach, the courts look to the totality of the circumstances involved in
the recording of the lis pendens and the filing of a motion to expunge.
Indeed, even in circumstances where a lis pendens is withdrawn while a motion to expunge is pending,
California courts have determined that the moving party is not automatically entitled to attorney fees as
the prevailing party, nor automatically denied attorney fees; instead, the trial court has the discretion to
award attorney fees based on a determination of which party would have prevailed on the motion, and

3. whether the lis pendens claimant acted with substantial justification in withdrawing the lis pendens, or
whether, in light of all of the circumstances, the imposition of fees would otherwise be unjust.[11]
And even in circumstances in which a court orders a lis pendens expunged on the condition that an
undertaking be posted in its stead, attorney’s fees may still not be awarded to the moving party. If the
party moving to expunge the lis pendens offers to furnish a proper undertaking in an amount the court
finds adequate and the expungement motion is granted over the resistance of the party recording the lis
pendens, the moving party may fairly be said to be the “prevailing party” for purposes of an award of
attorney fees. But where the security offered is determined to be inadequate and the motion is granted on
condition that greater security must be furnished, then the moving party may not be classified as the
prevailing party.[12]
Conclusion
Thus, the foregoing makes clear that whether and in what circumstances a lis pendens is appropriate, can
be a complicated decision fraught with significant risks if a lis pendens is misused (including the potential
payment of your adversary’s attorney’s fees). For these reasons, and for the purposes of recovering
attorney’s fees, a party who moves to expunge a lis pendens should always, concurrent with the filing of
their motion, propose to post an undertaking sufficient to protect the interests of the recording party, if
that party’s lis pendens is expunged.
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[1] Bishop Creek Lodge v. Scira (1996) 46 Cal.App.4th 1721.
[2] Such claim may be filed with the court concurrent with the filing of the lis pendens.
[3] Code Civ. Proc. § 405.4.
[4] As an alternative (or in addition) to seeking expungement, the parties to the litigation may always
contract around the lis pendens, by, for example agreeing to withdraw the lis pendens so long as the
proceeds from the sale of the subject real property are secured.
[5] Code Civ. Proc. §§ 405.31, 405.33.
[6] Code Civ. Proc. § 405.31 (emphasis added).
[7] Code Civ. Proc. § 405.33.
[8] Id.
[9] See Elder v. Carlisle Insurance Company (1987) 193 Cal.App.3d 1313 (finding that an undertaking
given as a condition to the expungement or non-expungement of a lis pendens serves to protect only
against damages that actually result from the expungement or non-expungement and that a judgment on
unjust enrichment did not support the recordation of a lis pendens).

4. [10] The current statutes governing the expungement of a lis pendens can be found in Code of Civil
Procedure (“CCP”) sections 405.30, et seq, but primarily sections 405.32 and 405.33. The precursors to
such sections were CCP sections 409.1 and 409.2.
[11] Castro v. Superior Court (2004) 116 Cal.App.4th 1010.
[12] Trapasso v. Superior Court of Orange County (1977) 73 Cal.App.3d 561.