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I. INTRODUCTION

This is a case of first impression regarding the proper standard on which to judge a motion to expunge a notice of lis pendens when the trial court has already substantively rejected the recording party’s claim. Up to 1992, we knew what the standard was. It had been clearly articulated in Peery v. Superior Court (1981) 29 Cal.3d 837 [ 176 Cal.Rptr. 533 , 633 P.2d 198 ]: If the claimant could show that a substantial issue existed for appeal, the motion to expunge would be denied even though the claimant had already lost at the trial level. (Id. at p. 845.)

The Peery standard was rooted in former Code of Civil Procedure section 409.1, which used the phrases “proper purpose” and “good faith,” i.e., seemed to point to the claimant’s subjective state of mind in recording the notice of lis pendens. For claimants it was a pretty easy standard, and hence their lis pendens were likely to stay on the property for the duration of any appeal.

But when, in 1992, the Legislature replaced section 409.1 with section 405.32, all language focused on subjectivity came out. The new language required the claimant to establish by a “preponderance of the evidence the probable…