Expungement and Relief in Civil Actions

Code of Civil Procedure, Part 2, Title 4.5, Chapter 3 concerns expungement and other relief in the recording notice of certain civil actions in California.

Section 405.30 provides that, at any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property 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 must 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. 

Section 405.31 requires the court to 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 cannot 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.

Section 405.32 requires the court to 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.

Section 405.33 requires the court to 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 is conditioned upon the giving of the undertaking of the nature and 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.

Section 405.34 states that, 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 must 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. 

Recovery on an undertaking required pursuant to this section may be had in an amount not to exceed the undertaking 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. 

Section 405.35 prohibits any order expunging a notice of pendency of action from becoming effective or being recorded until the time within which a petition for writ of mandate may be filed has expired. 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.

Section 405.36 provides that, 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.

Section 405.37 allows a court to exonerate or modify any undertaking required by an order issued 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.

Section 405.38 requires the court to 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.

Section 405.39 states that no order or other action of the court under this chapter is 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 must be filed and served within 20 days of service of written notice of the order by the court or any party.