A California lis pendens is a notice recorded with the county recorder announcing that a pending lawsuit affects title to or possession of a specific piece of real property. Governed by Code of Civil Procedure sections 405 through 405.39, it puts the world on notice that whoever buys, lends against, or otherwise takes an interest in the property does so subject to whatever the court eventually decides. That power is why California surrounds the filing with strict rules on who may record one, how it must be served, and how quickly it can be removed when it does not belong on title.
What Qualifies as a Real Property Claim
A lis pendens is only available for lawsuits that assert a “real property claim.” Section 405.4 defines that as a cause of action which, if meritorious, would affect title to or the right to possess specific real property, or affect the use of an easement identified in the pleading.1California Legislative Information. California Code of Civil Procedure Section 405.4 The operative words are “if meritorious”: the relief requested has to actually change ownership, possession, or use.
Quiet title actions, boundary disputes, easement fights, fraudulent conveyance claims, and suits for specific performance of a real estate purchase contract all qualify. A breach of contract claim that seeks only money damages does not, even when the contract concerned real estate. That line is the most common fault line in expungement fights: a lis pendens attached to a money claim dressed up as a property dispute will not survive scrutiny.
Who Can File One
Section 405.20 allows any party who asserts a real property claim in a pending action to record the notice in the county where the property sits.2California Legislative Information. California Code CCP 405.20 – Recording of Notice of Pendency of Action Plaintiffs are the usual filers, but a defendant who has filed a cross-complaint containing a real property claim can also record one. A defendant without a cross-complaint cannot.
Section 405.21 requires the notice to be signed by the attorney of record. A party representing themselves can only record a lis pendens with approval from a judge of the court where the action is pending.3California Legislative Information. California Code of Civil Procedure Section 405.21 That judicial check exists to deter abuse by pro per litigants, so a self-represented filer who records without court approval has recorded nothing of legal effect.
Service and Recording
Filing with the recorder is only part of the process. Section 405.22 requires the filer to serve a copy of the notice on every adverse party and every property owner of record, and the notice is void as to any party who was not properly served.4Justia. California Code of Civil Procedure 405-405.24 – Definitions and General Provisions A proof of service must be recorded along with the notice, and a copy must be filed with the court hearing the lawsuit immediately after recording.5California Legislative Information. California Code of Civil Procedure CCP 405.22
If no known address exists for an adverse party, the filer may record a declaration under penalty of perjury stating that fact in place of a proof of service for that party. Anyone later joined in the lawsuit must be served promptly in the same manner. Cutting corners on service is one of the quickest ways to lose the lis pendens; a property owner who was never properly notified has clean grounds for removal.
What the Recording Does to the Property
From the moment the notice is recorded, section 405.24 treats every subsequent buyer, lender, or transferee as having legal knowledge of the pending lawsuit.6California Legislative Information. California Code of Civil Procedure 405.24 Whatever rights the claimant eventually proves relate back to the recording date, so a buyer who closes afterward takes the property subject to the court’s ruling.
The practical effect is harder than the legal rule. Title insurers almost always refuse to issue a policy on property encumbered by a lis pendens. Without title insurance, lenders will not fund a purchase or refinance, and few buyers will proceed without it. The property becomes functionally unmarketable for as long as the notice stays on record. For an owner who needs to sell or borrow against the property, that pressure can be severe even when the underlying lawsuit is thin.
How to Remove a Lis Pendens
Two routes exist to clear the notice: the filer withdraws it voluntarily, or the court expunges it. When a case settles or is dismissed, the filer should record a withdrawal promptly. If they do not, the property owner, or any nonparty with an interest in the property, can move the court to expunge.7California Legislative Information. California Code of Civil Procedure Section 405.30 A nonparty, such as a frustrated buyer, must first get leave to intervene.
The Two Expungement Standards
Expungement motions fall under two different sections, and the distinction matters. Section 405.31 asks whether the underlying pleading even contains a real property claim. The judge looks only at the complaint, not at evidence, and decides whether the claim would affect title or possession if it succeeded.8California Legislative Information. California Code CCP 405.31 If the pleading fails that threshold, the notice must be expunged. No weighing of evidence, no balancing of harms.
If the pleading does contain a real property claim, section 405.32 applies. The claimant then has to establish by a preponderance of the evidence that the claim is probably valid.9Justia. California Code CCP 405.32 The court reviews declarations, documents, and sometimes testimony. A claimant who cannot carry that burden loses the notice. The California Supreme Court in Kirkeby v. Superior Court (2004) emphasized the split: 405.31 tests what the pleading says on its face, while 405.32 tests whether the facts actually back it up.10Stanford Law School – Supreme Court of California. Kirkeby v. Superior Court, S117640
The Undertaking Alternative
Even where a property owner would otherwise win expungement, section 405.33 lets the court keep the notice in place if the claimant posts an undertaking sufficient to secure the owner’s potential recovery. The reverse also applies: the court may condition expungement on the property owner posting a bond to protect the claimant.11California Legislative Information. California Code of Civil Procedure CCP 405.33 If the party ordered to post fails to do so by the return date, the court denies the related motion. The mechanism gives judges a middle option when both sides have genuine stakes.
Once a lis pendens is expunged, section 405.36 bars the claimant from recording a new one against the same property in the same action. There are no do-overs; a procedurally defective notice cannot be re-recorded after it has been struck down.
Attorney Fees Are Mandatory
California’s fee-shifting rule on expungement motions is unusually strong. Section 405.38 makes an award of reasonable attorney fees and costs to the prevailing party mandatory, not discretionary.12California Legislative Information. California Code of Civil Procedure 405.38 The court must award fees unless it finds that the losing party acted with substantial justification or that other circumstances would make the award unjust. The default runs both directions: an owner who wins expungement typically recovers fees, and a claimant who defeats a weak expungement motion can collect from the owner who brought it.
Withdrawing the notice to avoid the fee hit does not necessarily work. Courts examine whether the moving party would have won on the merits and whether the withdrawal was driven by the motion’s strength rather than by an unrelated development such as settlement. A claimant who records an unsupported lis pendens and then yanks it after being sued over it should not assume the fee exposure disappears.
Risks of Recording Without a Legitimate Claim
Beyond losing the fight and paying the other side’s fees, a filer who records a lis pendens without a genuine real property claim can face other exposure.
Slander of Title
A property owner harmed by a wrongful lis pendens may sue for slander of title to recover damages from lost sales, higher financing costs, or other financial injury traceable to the cloud on title. Civil Code section 47(b)(4) provides a qualified privilege: a recorded lis pendens is privileged as long as it identifies a previously filed action, in a court of competent jurisdiction, that actually affects title to or possession of the property.13California Legislative Information. California Civil Code Section 47 A filer with at least a colorable real property claim is usually shielded even if the claim ultimately fails. A notice tied to no qualifying action at all gets no privilege.
Criminal Exposure
A lis pendens containing knowingly false information can draw criminal liability under Penal Code section 115, which makes it a felony to knowingly procure or offer any false or forged instrument for recording in a public office.14California Legislative Information. California Penal Code Section 115 Where the false document affects a single-family residence of up to four units, Penal Code section 115.5 adds a fine of up to $75,000.15California Legislative Information. California Penal Code 115.5 Prosecution is rare, but the risk is real when the filing involves fabricated claims or forged signatures.
Federal Court Cases and Bankruptcy
The California statutes still govern when the underlying lawsuit sits in federal court. Under 28 U.S.C. § 1964, a party seeking constructive notice of a federal action must comply with the same state-law recording and service requirements that would apply in state court.16Office of the Law Revision Counsel. 28 USC 1964 – Constructive Notice of Pending Actions For California property, that means satisfying sections 405.20 through 405.22 just as a state court plaintiff would.
Bankruptcy changes the picture. The automatic stay under 11 U.S.C. § 362 halts most actions to create, perfect, or enforce a lien against property of the estate, so recording a new lis pendens after a petition is filed can violate the stay and draw sanctions.17Office of the Law Revision Counsel. 11 U.S. Code 362 – Automatic Stay A notice already on record before the petition may stay in place, but enforcement of the underlying claim is frozen until the stay lifts or the case closes. Under 11 U.S.C. § 544, the trustee steps into the shoes of a hypothetical bona fide purchaser as of the petition date and can avoid a lis pendens that was improperly recorded under California law, effectively erasing it from title.18Office of the Law Revision Counsel. 11 U.S. Code 544 – Trustee as Lien Creditor and as Successor to Certain Creditors and Purchasers Any claimant relying on a lis pendens to protect its interest should assume the procedural requirements will be tested if bankruptcy enters the picture.