Kirkeby v. Superior Court (2004): When You Can Record a Lis Pendens in California

What Is a Lis Pendens in California?

California's lis pendens rules sit in Code of Civil Procedure sections 405.20 through 405.39. A party who asserts a "real property claim" may record one. Section 405.4 defines that term as a cause of action that would, if meritorious, affect title to or possession of specific real property, or the use of an easement identified in the pleading.

The procedure is strict. An attorney of record must sign the notice, or a judge must approve it for a self-represented party, under section 405.21. Before recording, the claimant must mail a copy by registered or certified mail to the adverse parties and the owners of record, and immediately after recording must file a copy with the court, under section 405.22. From the moment of recording, later buyers and lenders have constructive notice, and the claimant's eventual rights relate back to the recording date under section 405.24.

A Pet Tag Company, a Loan, and Two Houses

Cynthia Kirkeby and her brother Frederick Fascenelli developed the idea behind FasTags, Inc., a manufacturer of identification tags for pets, and jointly held the patent on its manufacturing process. Frederick and his wife Diana held 51 percent of the stock. Kirkeby held 39 percent, and she was trustee of a trust that held the remaining 10 percent.

After resigning from the board in 1998, Kirkeby alleged that the Fascenellis looted the company through improper patent licenses, inflated salaries and bonuses, payment of personal expenses, and improper loans. In late 2001 she sued in Orange County Superior Court with 27 causes of action seeking declaratory and injunctive relief and about $4.9 million in damages for herself and the company.

One of those causes of action involved real estate. Kirkeby alleged that Frederick borrowed $50,000 from FasTags, saying it would fund a building for the company, and instead used it in June 2000 to buy residential income property, which the couple immediately transferred to a family limited partnership. A year earlier, Frederick had transferred his interest in the family residence to a family trust, which then transferred it to the same partnership. Kirkeby alleged both transfers were made to hinder, delay, or defraud creditors, and asked the court to void them to the extent needed to satisfy her claims. She recorded a lis pendens against both properties.

The Lower Courts: "This Case Is About Money"

The Fascenellis moved to expunge. The trial court granted the motion, reasoning that the complaint was primarily about money and that Kirkeby claimed no ownership or possessory interest in either property. The Court of Appeal denied her writ petition, concluding that the purpose of the fraudulent transfer claim was to make the property available to satisfy a judgment, "not to further a claim by Kirkeby to title or possession." The Supreme Court granted review.

The Supreme Court's Reasoning

1. Voiding a transfer changes title

California's fraudulent transfer statute, now the Uniform Voidable Transactions Act in Civil Code section 3439.07, lets a successful creditor obtain "avoidance of the transfer" to the extent needed to satisfy the claim. Undoing a transfer of real property necessarily affects title to it. A claim asking for that remedy therefore fits the plain words of section 405.4.

2. The court reads the pleading, not the motive

A motion to expunge under section 405.31 calls for a demurrer-like review of the pleading. The Fascenellis argued the court should look through the complaint to the plaintiff's true purpose, citing Urez Corp. v. Superior Court (1987) and similar cases. The Supreme Court rejected that approach: nothing in the statute or its legislative history directs courts to examine motive at this stage. Whether the claim has factual merit is a different question, decided under section 405.32.

3. Buying is not conveying

The court distinguished Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, where the plaintiff alleged only that its money was wrongfully used to buy a property. That was a constructive trust theory, not an attack on a conveyance. Kirkeby alleged the Fascenellis transferred title with intent to defraud and asked to void those transfers. The court expressly left open whether a constructive trust or equitable lien claim can ever support a lis pendens.

4. The fraudulent transfer statute allows it

The statute lists remedies such as attachment, injunction, and a receiver, and also "any other relief the circumstances may require." Together with section 3439.10, which preserves principles of law and equity and whose official comment names the lis pendens, the court read the statute to permit the remedy.

"The potential for abuse is obvious."

Kirkeby, quoting La Paglia v. Superior Court (1989), on what a lis pendens does to a property owner

How to Remove a Lis Pendens in California

Expungement is the owner's main tool. A motion under section 405.30 can be filed at any time after the notice is recorded, and on that motion the burden is on the claimant to show the notice should stay. Kirkeby summarized the grounds, which remain the framework today:

Two more rules shape the economics. Under section 405.38, the court shall award the prevailing party on the motion its reasonable attorney fees and costs unless the other side acted with substantial justification or an award would be unjust. And under section 405.39, orders on these motions are not appealable at all.

2026 Update: Lis Pendens Rulings Are Reviewed by Writ, Not Appeal

The writ-only rule caught a trustee in Grimberg v. Pour (Cal. Ct. App., 4th Dist., Div. 1, No. D085888, filed July 17, 2026, certified for publication). A probate court authorized lis pendens against properties the trustee personally owned, including Los Angeles properties, in a dispute over trust assets. The trustee filed a direct appeal nearly two months later, arguing the Probate Code made the order appealable.

The Court of Appeal dismissed the appeal. The specific lis pendens statute controls over general probate appeal rules, and the proper course was to move to expunge and then seek writ review within 20 days. The lesson applies in every California court: if a lis pendens ruling goes against you, the clock is short and the vehicle is a writ petition.

Which Claims Can Support a Lis Pendens?

The test is whether the claim, if it succeeds, would affect title, possession, or the use of an identified easement. Common examples in Los Angeles County practice:

• Usually yesQuiet title actions; partition, where recording is mandatory under section 872.250; claims to compel a seller to close, as in our analysis of specific performance when a seller refuses to close; claims to void a transfer, as in Kirkeby; and easement disputes.
• Usually noClaims that seek only money, such as breach of contract damages, fraud damages, or an unpaid loan, even when the defendant owns real estate that could pay a judgment.
• UnsettledConstructive trust and equitable lien theories over property bought with diverted money. Kirkeby left that question open.

If a Lis Pendens Has Been Recorded Against Your Property

1. Confirm what was recorded and served

   Pull the notice from the Los Angeles County Registrar-Recorder/County Clerk and check whether it was signed, mailed, and filed as section 405.22 requires.

2. Read the complaint against section 405.4

   If every cause of action seeks only money, a section 405.31 motion may end the notice quickly.

3. Test the merits under section 405.32

   If the claim is a real property claim on paper, the claimant still must prove probable validity with evidence.

4. Consider an undertaking

   If a sale or refinance is pending, a bond under section 405.33 may free the property while the case continues.

5. Ask for fees

   Section 405.38 shifts reasonable fees and costs to the prevailing party on the motion in most cases.

6. Calendar the writ deadline

   Any challenge to the ruling must be filed by writ within 20 days of notice of the order under section 405.39.

If You Need to Record One

A lis pendens is powerful precisely because it clouds title, which is why courts scrutinize it and why a weak one can cost you fees. Before recording, confirm that at least one cause of action would affect title, possession, or an identified easement; that you have evidence to show probable validity on a motion; and that the notice will be signed, mailed, recorded, and filed in the order the statute requires. The real estate tools and remedies page explains how a lis pendens fits with other options such as quiet title and injunctions.

Lis Pendens Practice in Glendale and Los Angeles County

Notices on Los Angeles County property are recorded with the Registrar-Recorder/County Clerk, and the underlying cases are heard in the Los Angeles County Superior Court. Title companies routinely list a recorded lis pendens as an exception, so a buyer's lender will usually refuse to close until it is expunged or withdrawn. When a case settles, the claimant should record a withdrawal so the notice does not keep clouding title.

Six Things Kirkeby Settles About Lis Pendens

How DiJulio Law Group Handles Lis Pendens Matters

For owners, the first step is reading the complaint and the recorded notice side by side to see whether a quick section 405.31 motion is available or whether the fight is on probable validity. For claimants, it is making sure the pleading states a real property claim and that the evidence will hold up on an early motion. Either way, the firm looks for the fastest path to clear title or a secure position, including negotiated withdrawals, undertakings, and mediation.

The firm handles these matters in Glendale, Los Angeles, and throughout Southern California through its California real estate law practice. Valeria Granata handles trial and appellate work, including writ practice.