SECTIONS 405.30-405.39 - California Statutes

CODE OF CIVIL PROCEDURE

SECTION 405.30-405.39

405.30. At any time after notice of pendency of action has been
recorded, any party, or any nonparty with an interest in the real
property affected thereby, 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 shall 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. 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 party affected by a motion to expunge
the notice. The claimant shall have the burden of proof under
Sections 405.31 and 405.32.

405.31. In proceedings under this chapter, the court shall 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
shall not 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.

405.32. In proceedings under this chapter, the court shall 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. The court shall not order an
undertaking to be given as a condition of expunging the notice if the
court finds the claimant has not established the probable validity
of the real property claim.

405.33. In proceedings under this chapter, the court shall 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
shall be conditioned upon the giving of the undertaking of such
nature and in such 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. In
its order conditionally expunging the notice, the court shall set a
return date for the moving party to show fulfillment of the
condition, and if the moving party fails to show fulfillment of the
condition on the return day, the court shall deny the motion to
expunge without further notice or hearing. Recovery may be had on the
undertaking pursuant to Section 996.440.
For purposes only of determining under this section whether the
giving of an undertaking will secure adequate relief to the claimant,
the presumption of Section 3387 of the Civil Code that real property
is unique shall not apply, except in the case of real property
improved with a single-family dwelling which the claimant intends to
occupy.

405.34. Subject to the provisions of Sections 405.31 and 405.32, 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 shall 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. An undertaking
required pursuant to this section shall be of such nature and in such
amount as the court may determine to be just. In its order requiring
an undertaking, the court shall set a return date for the claimant
to show compliance and if the claimant fails to show compliance on
the return date, the court shall order the notice of pendency of
action expunged without further notice or hearing.
Recovery on an undertaking required pursuant to this section may
be had in an amount not to exceed the undertaking, pursuant to
Section 996.440, 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. In
assessing these damages, the court shall not consider the claimant's
intent or the presence or absence of probable cause.

405.35. No order expunging a notice of pendency of action shall be
effective, nor shall it be recorded in the office of any county
recorder, until the time within which a petition for writ of mandate
may be filed pursuant to Section 405.39 has expired. No order
expunging a notice of pendency of action shall be effective, nor
shall it be recorded in the office of any county recorder, after a
petition for writ of mandate has been timely filed pursuant to
Section 405.39, until the proceeding commenced by the petition is
finally adjudicated. 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.

405.36. 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.

405.37. After notice and hearing, for good cause and upon such
terms as are just, the court may exonerate or modify any undertaking
required by an order issued pursuant to Section 405.33 or 405.34 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 under Section 405.33 or 405.34.

405.38. The court shall 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.

405.39. No order or other action of the court under this chapter
shall be 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 shall
be filed and served within 20 days of service of written notice of
the order by the court or any party. The court which issued the order
may, within the initial 20-day period, extend the initial 20-day
period for one additional period not to exceed 10 days. A copy of the
petition for writ of mandate shall be delivered to the clerk of the
court which issued the order with a request that it be placed in the
court file.