In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the real property claim has probable validity, but adequate relief can be secured to the claimant by the giving of an undertaking. The expungement order shall be conditioned upon the giving of the undertaking of such nature and in such amount as will indemnify the claimant for all damages proximately resulting from the expungement which the claimant may incur if the claimant prevails upon the real property claim. In its order conditionally expunging the notice, the court shall set a return date for the moving party to show fulfillment of the condition, and if the moving party fails to show fulfillment of the condition on the return day, the court shall deny the motion to expunge without further notice or hearing. Recovery may be had on the undertaking pursuant to Section 996.440. For purposes only of determining under this section whether the giving of an undertaking will secure adequate relief to the claimant, the presumption of Section 3387 of the Civil Code that real property is unique shall not apply, except in the case of real property improved with a single-family dwelling which the claimant intends to occupy.
§ 405.33.Expungement Order Conditioned On Giving Undertaking
Title 4.5. Recording Notice of Certain Actions · Chapter 3. Expungement and Other Relief · Enacted 1992 · no amendments on record · Last verified July 28, 2026
In one sentenceSection 405.33 lets a court expunge a notice conditioned on the claimant receiving an undertaking that indemnifies the claimant, where the real property claim has probable validity but adequate relief can still be secured that way, and it sets a return date and recovery procedure for the undertaking.
Full Text of § 405.33
Plain-English Summary
This section covers the middle ground between letting a notice stand and expunging it outright. If the real property claim has probable validity, but the court finds that an undertaking would give the claimant adequate protection, the court may still order the notice expunged -- on the condition that the moving party posts an undertaking sized to indemnify the claimant for damages the claimant proximately suffers from the expungement if the claimant ultimately prevails on the real property claim.
The court sets a return date for the moving party to show the undertaking has been posted; if it has not been by then, the motion to expunge is denied without further notice or hearing. Recovery on the undertaking follows the procedure in § 996.440. The section also carves out an evidentiary presumption: for purposes of deciding whether an undertaking adequately protects the claimant, the Civil Code's presumption that real property is unique does not apply -- except where the property is improved with a single-family dwelling the claimant intends to occupy.
Frequently Asked Questions
When will a court expunge a lis pendens conditioned on an undertaking instead of denying expungement outright?
Under § 405.33, this applies when the real property claim has probable validity but the court finds adequate relief can still be secured for the claimant through an undertaking.
What happens if the moving party does not post the undertaking by the return date?
Section 405.33 requires the court to deny the motion to expunge without further notice or hearing if the condition is not met by the return date.
Does the presumption that real property is unique affect an undertaking under Section 405.33?
Not usually -- the section disapplies that Civil Code presumption for this determination, except where the property is a single-family dwelling the claimant intends to occupy.
Amendment History
Added by Stats. 1992, Ch. 883, Sec. 2. Effective January 1, 1993.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: lis pendens undertaking bond expungementconditional expungement lis pendens undertaking