“The whole idea of a notice of lis pendens is to give constructive notice of the legal proceeding affecting title to a specific piece of property.” (Gale v. Super. Ct. (2004) 122 Cal.App.4th 1388, 1396.) “A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated.” (Code of Civ. Proc., § 405.20.)

“While the lis pendens statute was designed to give notice to third parties and not to aid plaintiffs in pursuing claims, the practical effect of a recorded lis pendens is to render a defendant's property unmarketable and unsuitable as security for a loan. The financial pressure exerted on the property owner may be considerable, forcing him to settle not due to the merits of the suit but to rid himself of the cloud upon his title. The potential for abuse is obvious. Because of the effect of a lis pendens, [t]he history of the lis pendens legislation indicates a legislative intent to restrict rather than broaden the application of the remedy.” (Kirkeby v. Super. Ct. of Orange Cty. (2004) 33 Cal.4th 642, 651.)

Expunging the Notice

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. (Code of Civ. Proc., § 405.30.)

In proceedings under this chapter, the court shall order a lis pendens expunged if it finds the pleading on which the lis pendens is based does not contain a real property claim, and in making that evaluation, the court engages in a demurrer-like analysis. (Kirkeby v. Super. Ct. (2004) 33 Cal.4th 642, 647.) Rather than analyzing whether the pleading states any claim at all, as on a general demurrer, the court must undertake the more limited analysis of whether the pleading states a real property claim. (Id.) A real property claim is one in which, if meritorious, would affect the title to, or the right of possession of, specific real property. (Code Civ. Proc., § 405.4.) Review involves only a review of the adequacy of the pleading and normally should not involve evidence from either side, other than possibly that which may be judicially noticed as on a demurrer. (Kirkeby v. Super. Ct. (2004) 33 Cal.4th 642, 647.)

The court shall also 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. (Code of Civ. Proc., § 405.32; Ziello v. Super. Ct. (1995) 36 Cal.App.4th 321, 331-332; Kirkeby v. Super. Ct. (2004) 33 Cal.4th 642, 648.) “‘Probable validity,’ with respect to a real property claim, means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim.” (Code of Civ. Proc., § 405.3.)

To establish “probable validity,” “a claimant must prove more than that he recorded the lis pendens in good faith and without ulterior motives. He must make a showing that he is likely to prevail on the merits, in much the same fashion as one seeking an attachment must show the probable merit of the underlying lawsuit.” (Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1011-1012.) A claimant may prove probable validity by offering evidence, declarations, or oral testimony. (Code of Civ. Proc., § 405.30.)

Burden of Proof

Unlike most other motions, the burden of proof is on the party opposing the motion to expunge. (Malcolm v. Super. Ct. (1981) 29 Cal.3d 518, 525-526.)