California Laws|Section 405.34.

                                                

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.

(Added by Stats. 1992, Ch. 883, Sec. 2. Effective January 1, 1993.)

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The Court notes that these cases discussed an earlier version of the law, however, the Court finds that the discussions of damages resulting from a lis pendens and damages recoverable from an undertaking are applicable to requests for undertaking under section 405.34. In addition, the end of section 405.34 provides for “damages as a result of the maintenance of the notice” where the claimant is not successful in their real party claim.

  • Name

    JOSEPH P SIMINI VS. JOSEPH CAMACHO

  • Case No.

    MSC16-02071

  • Hearing

    Apr 12, 2017

However, here, Defendant argues that Plaintiff is improperly trying to take on the role of the moving party under Section 405.34, which if applied according to its provisions, would mean that Plaintiff seeks a bond from itself. Defendant argues that there is no authority for Plaintiff to be in the role of moving party under Section 405.34, and then act as though Defendant is the moving party to be required to accept an undertaking to allow Plaintiff to keep a lis pendens.

  • Name

    DRAKK HOLDINGS, LLC VS PSIP SN VERMONT LLC

  • Case No.

    20TRCV00847

  • Hearing

    Mar 06, 2023

  • County

    Los Angeles County, CA

Defendant Royalty Investment Properties, LLC's unopposed motion for posting of undertaking is granted pursuant to Code of Civil Procedure section 405.34. Judicial notice is granted as requested. For the reasons set forth above, the court finds an undertaking to protect Royalty is necessary to prevent further harm. Plaintiff shall post an undertaking in the amount of $75,000 within 10 days.

  • Name

    PRECIADO VS NATIONSTAR MORTGAGE LLC

  • Case No.

    37-2018-00010762-CU-OR-CTL

  • Hearing

    Sep 06, 2018

(Code of Civil Procedure section 405.34.) ///

  • Name

    ALEXANDER, MARC ET AL VS. MURRAY, LANCE ET AL

  • Case No.

    S-CV-0041352

  • Hearing

    Oct 04, 2018

The Official Code Comments section 405.34 provide that: 1. The last sentence of Former CCP 409.1 authorized a court to require the proponent of a lis pendens to give the other party an undertaking as a condition of denial of an expungement motion. This section continues the court's authority to order the claimant to give an undertaking, but allows the court to order an undertaking on motion independent of a motion to expunge.

  • Name

    STEVE CANCHOLA, ET AL. V. MERRILL & ASSOCIATES REAL ESTATE, ET AL.

  • Case No.

    18CVP-0158

  • Hearing

    Apr 22, 2021

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