Notice of Pending Action or Lis Pendens
(Mechanic's Lien Enforcement) (CA)

Summary

This template is a notice of pending action or lis pendens, which must be filed by a claimant/plaintiff within 20 days after filing an action to enforce a mechanic's lien under Cal Civ Code § 8461. This template includes practical guidance and drafting notes. Before recording, however, make sure to comply with all form and service requirements. Note that the code provides that a purchaser or encumbrancer will not have constructive notice of the legal action until a notice of pending action is recorded bearing the real names of the persons whose interest is affected by the notice. See Cal. Civ. Proc. Code § 405.24. Review recording requirements specific to the applicable county recorder's office and Cal Gov Code § 27361.1. This template should be printed on an 8 ½ x 11 inch page, including a return address on the top left that is 2" down and 3" across, leaving the space to the right of the return address for the recording stamp. Documents must be printed in black ink on white paper. Documents which fail to comply with recording requirements or are found to be illegible may be rejected by the recorder. Please also note, some jurisdictions prefer court approved templates instead of attorney drafted templates. (For example, see County of San Bernardino approved Form SB-0023A). Providing the full legal description, street address, and assessor's parcel number of the real property is recommended in case one or more of the designations contains an error. Also, many county recorders require assessor's parcel numbers to appear on all documents to be recorded. As noted above, make sure the real names of the persons whose interest is affected by the mechanic's lien are named in the action and identified in the notice of pending action.The attorney of record for the claimant/plaintiff may sign the notice of pending action and should have this signature notarized. County recorders will require documents submitted for recording bear notarized ink signatures and will reject copies. If a claimant/plaintiff is appearing in an action in pro per, a judge sitting in the court in which the action has been filed can sign the notice of pending action on the request of a party; however, the party in pro per will still need to sign the document before a notary before it will be accepted by the a county recorder. See Cal. Civ. Proc. Code § 405.21. Before recording, the document must be served on all persons "to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll." See Cal. Civ. Proc. Code § 405.22. Service is accomplished by mailing a copy of the notice by registered or certified mail, return receipt requested, to all known addresses of the parties and to all owners of record of the real property. If there is no known address for service on an adverse party or owner, a claimant/plaintiff may record, in place of a proof of service, a declaration under penalty of perjury which identifies the specific party or owner for which no address is known and confirms the efforts to locate that party or owner. Immediately following recordation of the notice and proof of service, a copy of the notice and proof of service must be filed in the pending action. Please note, if the notice is not properly served, recorded, and filed, it will be void. Practitioners are urged to use great care in accurately preparing a notice of pending action (lis pendens) and its companion complaint. A notice of pending action may be expunged. Any person who has an interest in the real property may apply for an order expunging notice of pending action pursuant to Cal. Civ. Proc. Code §§ 405.30 et. seq. A notice of pending action will be ordered expunged if it does not contain a real property claim (Cal. Civ. Proc. Code § 405.31) or the claimant/plaintiff fails to show by preponderance of the evidence the "probable validity of the real property claim" (Cal. Civ. Proc. Code § 405.32). In the first instance, the court will review only the complaint and notice of pending action, without further evidentiary examination. In the second instance, the court will conduct an evidentiary examination to determine if the claimant/plaintiff can show by a preponderance of the evidence that the claim against the real property is of probable validity. See BGJ Associates v. Superior Court (1999) 75 Cal. App. 4th 952, 956-957. Even if the claimant/plaintiff is able to show the probable validity of its real property claim, the court may expunge the notice of pending action if the defendant can show an undertaking can adequately secure the claim. See Cal. Civ. Proc. Code § 405.33. The court may also order the claimant/plaintiff to post an undertaking in order to maintain a notice of pending action on the request of a person who has an interest in the property whether or not an order expunging notice of pending action is sought. See Cal. Civ. Proc. Code § 405.34. If a notice of pending action is expunged by order of the court, a new one cannot be recorded without leave of court. See Cal. Civ. Proc. Code § 405.36. Attorneys' fees and costs will be awarded to the prevailing party in a motion to expunge notice of pending action unless the court finds the award would lead to an unjust result. See Cal. Civ. Proc. Code § 405.38. For additional guidance on mechanic's liens, see Mechanic's Lien Resource Kit.