A California lis pendens is a notice recorded with the county recorder that warns the world a lawsuit is pending which, if the plaintiff wins, will affect title to or possession of a specific piece of real property. Once recorded, it operates as constructive notice to any buyer or lender, and in practice it makes the property nearly impossible to sell or refinance until the case ends or the notice is removed. California regulates the mechanism tightly through Code of Civil Procedure sections 405 to 405.39, and the rules control who may record one, how it must be served, and how a property owner can get it off title.
What Counts as a Real Property Claim
Not every lawsuit that mentions property qualifies. Section 405.4 defines a “real property claim” as a cause of action that, 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 Quiet title actions, boundary disputes, easement disputes, fraudulent conveyance claims, and suits for specific performance of a real estate contract all fit.
A breach-of-contract claim that only seeks money damages does not qualify, even when the contract concerns real estate. That distinction is where most improperly recorded notices fail, because it is also the single most common ground for expungement.
Who Can Record a Lis Pendens
Under section 405.20, any party asserting a real property claim in a pending action can record a notice of pendency 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 files a cross-complaint containing a real property claim can also record one. A defendant without a cross-complaint cannot.
The notice must list every party to the action and describe the affected property. Section 405.21 requires that it be signed by the attorney of record. If the filer is self-represented, a judge of the court where the action is pending must approve the notice before it can be recorded.3California Legislative Information. California Code of Civil Procedure Section 405.21 That judicial approval requirement exists as a check on pro per filings.
Service and Recording Requirements
Recording alone does not complete the job. Section 405.22 requires the filer to serve a copy of the notice on every adverse party and every owner of record of the affected property. 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 together with the notice, and immediately after recording, a copy must be filed with the court hearing the underlying lawsuit.5California Legislative Information. California Code of Civil Procedure CCP 405.22
When no known address exists for an adverse party, the filer may record a declaration under penalty of perjury stating that fact instead of a proof of service as to that party. If someone joins the case as an adverse party later, service must follow promptly. A property owner who was never served has a direct route to expungement.
How a Recorded Notice Affects the Property
Section 405.24 provides that from the moment of recording, any person who later acquires an interest in the property is legally deemed to have notice of the pending action, and the claimant’s rights, as ultimately determined by the court, relate back to the recording date.6California Legislative Information. California Code of Civil Procedure 405.24 Anyone who buys or lends against the property after that date takes subject to whatever the court eventually decides.
The practical consequence is severe. Title insurers rarely issue a policy on property carrying a lis pendens. Without title insurance, lenders will not fund a purchase or refinance, and buyers willing to close without insurance are uncommon. The property effectively becomes unmarketable for as long as the notice stays on record, which is exactly why California polices the filing process so closely.
How to Remove a Lis Pendens
Two paths clear a lis pendens from title: voluntary withdrawal by the filer, or a court-ordered expungement. When a case settles or is dismissed, the filer should record a withdrawal promptly. If they don’t, the property owner, or any nonparty with an interest in the property, can move to expunge under section 405.30.7California Legislative Information. California Code of Civil Procedure Section 405.30 A nonparty, such as a prospective buyer whose escrow is stuck, must first get leave to intervene.
The Two Expungement Standards
Courts analyze expungement motions under two separate provisions, and mixing them up is a common error. Section 405.31 asks whether the complaint even pleads a real property claim on its face. The court reads the pleading, not evidence, and decides whether the requested relief would actually affect title or possession.8California Legislative Information. California Code CCP 405.31 If the pleading fails, the notice must be expunged without any weighing of equities.
If the pleading survives that test, section 405.32 takes over. The claimant must then establish, by a preponderance of the evidence, that the real property claim is probably valid.9Justia. California Code CCP 405.32 This is a factual inquiry supported by declarations and documents. If the claimant can’t meet that burden, the notice comes off. The California Supreme Court in Kirkeby v. Superior Court underscored the split: 405.31 tests the pleading, 405.32 tests the underlying facts.10Stanford Law School – Supreme Court of California. Kirkeby v. Superior Court, S117640
Bond in Place of Expungement
Section 405.33 gives the court a third option. Even when the property owner satisfies the expungement standard, the judge can condition removal on the claimant posting an undertaking sufficient to secure any recovery the property owner might obtain if the notice was wrongful, or vice versa.11California Legislative Information. California Code of Civil Procedure CCP 405.33 If the party required to post the bond fails to do so by the return date, the outcome flips. For a single-family residence the claimant intends to occupy, the property is presumed unique, which makes the bond alternative a weaker substitute for actual removal.
One more piece of the statute matters here. Section 405.36 forbids the claimant from recording a second lis pendens against the same property in the same action once the first has been expunged. There is no second bite.
Attorney Fees Are Mandatory
Section 405.38 makes an award of reasonable attorney fees and costs to the prevailing party on an expungement motion mandatory, not discretionary.12California Legislative Information. California Code of Civil Procedure 405.38 The court must order fees unless it finds the losing party acted with substantial justification or that other circumstances would make the award unjust.
The rule runs both directions. A property owner who successfully expunges typically recovers fees from the claimant. But a claimant who defeats an expungement motion can recover fees from the property owner who filed it. That symmetry raises the stakes for both sides before either files anything.
When a Filing Goes Too Far
Recording a lis pendens without a legitimate real property claim can create liability beyond losing an expungement motion.
Slander of Title
A property owner damaged by a wrongfully recorded notice may bring a slander of title claim for losses caused by the cloud on title, such as a lost sale or higher financing costs. Civil Code section 47(b)(4) provides a qualified privilege for a recorded lis pendens, but only when the notice identifies an action previously filed in a court of competent jurisdiction that actually affects title or possession.13California Legislative Information. California Civil Code Section 47 A colorable real property claim usually keeps the privilege intact even if the claim later fails. A notice filed without any qualifying action does not receive the privilege.
Criminal Exposure
Filing a lis pendens containing knowingly false information can trigger prosecution under Penal Code section 115, which makes it a felony to knowingly offer a false or forged document for filing or recording in a public office.14California Legislative Information. California Penal Code Section 115 For false documents affecting single-family residences 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 Prosecutions are uncommon, but the risk is real when the underlying filing involves fabricated claims or forged signatures.
Federal Cases and Bankruptcy
The state rules still apply when the lawsuit is in federal court. Under 28 U.S.C. § 1964, a party seeking constructive notice of a federal action affecting real property must comply with the state-law recording 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 recording in the correct county and satisfying sections 405.20 through 405.22 exactly as in a state action. Skipping the state process leaves the federal litigant without constructive notice and vulnerable to later purchasers or lenders taking priority.
Bankruptcy adds another layer. The automatic stay under 11 U.S.C. § 362 halts most actions to create, perfect, or enforce a lien against estate property.17Office of the Law Revision Counsel. 11 U.S. Code 362 – Automatic Stay Recording a new lis pendens after the debtor files can violate the stay and draw sanctions. A notice already on record when the petition is filed may remain, but enforcement of the underlying claim stops until the stay lifts or the case ends.
The bankruptcy trustee also has avoidance rights under 11 U.S.C. § 544, which give the trustee the status of a hypothetical bona fide purchaser of real property as of the petition date.18Office of the Law Revision Counsel. 11 U.S. Code 544 – Trustee as Lien Creditor and as Successor to Certain Creditors and Purchasers A lis pendens that was improperly recorded or otherwise defective under California law may be avoided outright, stripped from title as though it had never existed. For a claimant relying on the notice to protect an interest, tight compliance with the California statute matters even more when bankruptcy is on the horizon.