AMALGAMATED BANK v. Superior Court

In this case, we are confronted with the knotty question of what an appellate court should do about an order expunging a lis pendens where a real property claimant is appealing from an adverse judgment in the trial court and files a writ petition asking the Court of Appeal to stay the expungement until the appeal is decided. The issue is complicated by a drastic change in lis pendens law enacted in 1992.

The new law places the burden on the party filing a lis pendens to show the “probable validity” of his or her real property claim before trial, but says nothing about what standard the trial court should apply when confronted with a motion to expunge the lis pendens after the claimant suffers an adverse judgment. Moreover, while the new legislation permits the aggrieved party to seek appellate review of an expungement order by petition for writ of mandate, it does not tell the reviewing court what standard to apply in deciding whether to issue the writ.

We shall conclude that the standard for deciding whether to issue a writ of mandate vacating a postjudgment expungement order is whether a petitioner’s real property claim has probable validity. We do this by assessing…