Legal Question in Real Estate Law in California

Re: Les Pendence or TRO

Filing for either is a fairly complex process and must be initiated by the filing of a lawsuit with sufficient grounds for a judge to grant either motion. While they is strictly speaking no requirement that an attorney be involved, unless you are familiar with, or willing to learn very quickly substantive law as well as rules of civil procedure, I'd suggest hiring an attorney.

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Re: Les Pendence or TRO

Anyone who has the grounds and legal right to do it, and knows how to do so correctly and timely can do it. If you don't know how, then get an attorney to avoid creating huge legal problems for yourself. If it is a substantial claim, feel free to contact me for the legal help you'll need in creating all the pleadings and filings, and appearing and arguing your case at the hearings.

Re: Les Pendence or TRO

A non lawyer can, but serious consequences can come about if it is done wrong. It needs to be done in relation with a lawsuit.

Re: Les Pendence or TRO

First, let's discuss the lis pendens question. "Lis pendens" is legal Latin for "litigation pending," and the modern name in California codes is "Notice of Pendency of Action," but almost everyone refers to it by the old name. A lis pendens must be recorded, served on the defendants by certified mail, and filed with the court in which the lawsuit is pending. The lawsuit MUST involve a genuine dispute over title to, or possession of, real property. A lis pendens CANNOT be used in a lawsuit that only seeks money damages or other relief without raising title or possession causes of action.

A non-attorney CANNOT file, serve or record a lis pendens without the prior approval of a judge. See Code of Civil Procedure section 405.21. This is to prevent abuse of the lis pendens to harass others.

OK, now as to TROs. A temporary restraining order is an order of the court. Only a judge, or sometimes a lesser judicial officer such as a commissioner, can make such an order, and then only upon an application presented to the court, in connection with a lawsuit then on file. TROs have a very short life after issuance, usually less than two weeks, and before the expire the court will usually hold a hearing on an "Order to Show Cause" (OSC) issued at the same time as the TRO, at which hearing the court will hear arguments as to whether the TRO should be turned into a Preliminary Injunction (PI) which would then remain in effect, usually, until the underlying litigation is decided and the PI either becomes permanent or is dissolved. So, a TRO cannot be put on property except by a court, and then only upon an appropriate application.