Lis Pendens: Fifth District Reverses Expungement Motion In Right Of First Refusal Dispute, Remanding To The Lower Court To Set Attorney’s Fees For The New Prevailing Party

Case Has A Nice Discussion of Lis Pendens And Right Of First Refusal Principles.

            In J&A Mash & Barrell, LLC v. Superior Court, Case No. F083104 (5^th Dist. Jan. 19, 2022) (published), the appellate court confronted a mandate writ proceeding to review a lower court’s lis pendens expungement order in a dispute brought by a tenant claiming that its landlord dishonored a contractual right of first refusal when it came to selling the property.  A writ petition is the only available means to review an expungement order.  The Fifth District, in a nice discussion of lis pendens and right of first refusal principles, vacated the expungement order.  It also determined that tenant had achieved its litigation objectives and that landlord has no substantial justification for its expungement, which means that tenant was entitled to seek attorney’s fees and costs for its expungement opposition activities under Code of Civil Procedure section 405.38 (the lis pendens expungement fee-shifting provision).  Tenant further was entitled to appellate costs in winning at the appellate level.