The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.
§ 405.38.Attorney's Fees and Costs
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 405.38 requires the court to award the prevailing party reasonable attorney's fees and costs on any motion under this chapter, unless the losing party acted with substantial justification or other circumstances make a fee award unjust.
Full Text of § 405.38
Plain-English Summary
Fee-shifting in expungement practice is the default, not the exception. Section 405.38 directs the court to award reasonable attorney's fees and costs to whichever party prevails on a motion brought under this chapter -- a motion to expunge, a motion for an undertaking, or a motion to exonerate or modify one.
The court has a narrow escape valve: it can withhold fees if it finds the losing party acted with substantial justification, or if other circumstances would make a fee award unjust. Because the default runs toward an award, this section raises the stakes on both sides of an expungement motion -- a claimant who cannot show probable validity risks paying the moving party's fees, and a party who moves to expunge without a solid basis risks paying the claimant's.
Frequently Asked Questions
Who pays attorney's fees on a motion to expunge a lis pendens in California?
Under § 405.38, the party who prevails on the motion is entitled to an award of reasonable attorney's fees and costs from the losing party, as the default rule.
Can a court deny attorney's fees to the prevailing party on an expungement motion?
Yes, if the court finds the losing party acted with substantial justification or that other circumstances make a fee award unjust.
Does the fee-shifting rule in Section 405.38 apply only to motions to expunge?
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: attorney fees lis pendens motionexpungement of lis pendens fee shiftingsanctions lis pendens without merit