Judge: Anne Richardson, Case: 23STCP03198, Date: 2023-10-19 Tentative Ruling

Case Number: 23STCP03198    Hearing Date: November 27, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

On August 31, 2023, Petitioner Vitali Elkabetz brought this Petition for Release of Property from Lien (Cal. Civil Code § 8490) against Respondent David Azoulay, who does business as AD Holding, as A D Remodeling Inc., and as A&D Construction, Inc.

The Petition arises from the imposition of a May 22, 2020 mechanic’s lien on 1651 S. Rimpau Blvd., Los Angeles, CA 90019, real property owned by Petitioner Elkabetz. The claim of lien was imposed in the amount of $142,663 for labor, services, equipment, or materials furnished by Respondent for a work of improvement. Petitioner Elkabetz seeks a release of the mechanic’s lien on the ground that Respondent Azoulay has failed to bring an action to enforce the lien within 90 days after the recordation of the claim of lien, as required by Civil Code section 8460. To wit, Petitioner Elkabetz argues that no action has been filed to foreclose the lien, no extension of credit has been recorded, the time period during which suit can be brought to foreclose the lien has expired, and Respondent Azoulay refuses to release the lien.

On September 5, 2023, Petitioner Elkabetz noticed a hearing on the Petition for October 19, 2023.

On October 13, 2023, Petitioner Elkabetz filed a proof of service, which shows that the Petition, notice of hearing, and other documents were served on Respondent Azoulay on October 11, 2023 by substituted service at Respondent’s usual place of business.

On October 19, 2023, the Court heard the Petition, at which time the Court continued the hearing based on Petitioner Elkabetz’s service of the Petition on Respondent Azoulay within 15 days of October 19, 2023. The Court also gave Respondent Azoulay until November 13, 2023 to oppose the Petition and Petitioner Elkabetz until November 20, 2023 to file a reply.

Respondent Azoulay did not file an opposition, nor did Petition Elkabetz file a reply.

The Petition is now before the Court.

Petition to Release Mechanic’s Lien

Legal Standard

“Our state Constitution provides: ‘Mechanics, persons furnishing materials, artisans, and laborers of every class, shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and material furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.’ (Cal. Const., art. XIV, § 3.) As this court has said, ‘The mechanic’s lien is the only creditors’ remedy stemming from constitutional command and our courts ‘have uniformly classified the mechanics’ lien laws as remedial legislation, to be liberally construed for the protection of laborers and materialmen.’ [Citation.]’ (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal. 3d 456, 462 [253 Cal. Rptr. 236, 763 P.2d 1326].) ‘[S]tate policy strongly supports the preservation of laws which give the laborer and materialman security for their claims.’ (Connolly Development, Inc. v. Superior Court (1976) 17 Cal. 3d 803, 827 [132 Cal. Rptr. 477, 553 P.2d 637].)” (Wm. R. Clarke Corp. v. Safeco Ins. Co. (1997) 15 Cal.4th 882, 888–89.)

“Subject to Section 8442, a lien attaches to the work of improvement and to the real property on which the work of improvement is situated, including as much space about the work of improvement as is required for the convenient use and occupation of the work of improvement.” (Civ. Code, § 8440.)

“The claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien. If the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.” (Civ. Code, § 8460, subd. (a).)

“Subdivision (a) does not apply if the claimant and owner agree to extend credit, and notice of the fact and terms of the extension of credit is recorded (1) within 90 days after recordation of the claim of lien or (2) more than 90 days after recordation of the claim of lien but before a purchaser or encumbrancer for value and in good faith acquires rights in the property. In that event the claimant shall commence an action to enforce the lien within 90 days after the expiration of the credit, but in no case later than one year after completion of the work of improvement. If the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.” (Civ. Code, § 8460, subd. (b).)

“The owner of property or the owner of any interest in property subject to a claim of lien may petition the court for an order to release the property from the claim of lien if the claimant has not commenced an action to enforce the lien within the time provided in Section 8460.” (Civ. Code, § 8480, subd. (a).)

“An owner of property may not petition the court for a release order under this article unless at least 10 days before filing the petition the owner gives the claimant notice demanding that the claimant execute and record a release of the claim of lien. The notice shall comply with the requirements of Chapter 2 (commencing with Section 8100) of Title 1, and shall state the grounds for the demand.” (Civ. Code, § 8482.)

“A petition for a release order shall be verified and shall allege all of the following:

(a) The date of recordation of the claim of lien. A certified copy of the claim of lien shall be attached to the petition.

(b) The county in which the claim of lien is recorded.

(c) The book and page or series number of the place in the official records where the claim of lien is recorded.

(d) The legal description of the property subject to the claim of lien.

(e) Whether an extension of credit has been granted under Section 8460, if so to what date, and that the time for commencement of an action to enforce the lien has expired.

(f) That the owner has given the claimant notice under Section 8482 demanding that the claimant execute and record a release of the lien and that the claimant is unable or unwilling to do so or cannot with reasonable diligence be found.

(g) Whether an action to enforce the lien is pending.

(h) Whether the owner of the property or interest in the property has filed for relief in bankruptcy or there is another restraint that prevents the claimant from commencing an action to enforce the lien..”

(Civ. Code, § 8484, subds. (a)-(h).)

The petitioner seeking a release of a mechanic’s lien shall serve a copy of the petition and a notice of hearing on the claimant at least 15 days before the hearing. Service shall be made in the same manner as service of summons, or by certified or registered mail, postage prepaid, return receipt requested, addressed to the claimant as provided in Section 8108. (Civ. Code, § 8486, subd. (b).)

“At the hearing both (1) the petition and (2) the issue of compliance with the service and date for hearing requirements of this article are deemed controverted by the claimant. The petitioner has the initial burden of producing evidence on those matters. The petitioner has the burden of proof as to the issue of compliance with the service and date for hearing requirements of this article. The claimant has the burden of proof as to the validity of the lien.” (Civ. Code, § 8488, subd. (a).)

“A court order dismissing a cause of action to enforce a lien or releasing property from a claim of lien, or a judgment that no lien exists, shall include all of the following information: (1) The date of recordation of the claim of lien. (2) The county in which the claim of lien is recorded. (3) The book and page or series number of the place in the official records where the claim of lien is recorded. (4) The legal description of the property.” (Civ. Code, § 8490, subd. (a).)

“If judgment is in favor of the petitioner, the court shall order the property released from the claim of lien.” (Civ. Code, § 8488, subd. (b).)

“The prevailing party is entitled to reasonable attorney’s fees.” (Civ. Code, § 8488, subd. (c).)

Hearing on Petition Releasing Mechanic’s Lien: GRANTED.

I. Civ. Code, § 8460, subd. (a)

Respondent Azoulay recorded a mechanic’s lien on the Property on May 22, 2020. (Petition, ¶ 3, Ex. A.) However, Respondent Azoulay did not bring an action within 90 days thereof. (Petition, ¶ 4.)

II. Civ. Code, § 8480, subd. (a)

As a result, Petitioner Elkabetz made the instant petition.

III. Civ. Code, § 8482

Petitioner Elkabetz shows that more than ten days prior to filing this Petition, he attempted to obtain a release from the mechanic’s lien from Respondent Azoulay. (Petition, ¶¶ 5-7, Ex. B [attempt made Aug. 11, 2023, Petition filed Aug. 31, 2023].)

IV. Civ. Code, § 8484

Petitioner Elkabetz has verified this Petition. Moreover, the Petition: (a) states that the date of recordation was May 22, 2020 and attaches the lien’s recordation as Exhibit A; (b) identifies Los Angeles County as the county of recordation; (c) identifies the book and page number of the lien and the instrument number of the lien; (d) provides a legal description of the Property; (e) identifies the lack of extension of credit; (f) recounts a demand to release; (g) provides that no lien action is pending; and (h) clarifies that Respondent Azoulay has not filed for bankruptcy and that no other restraint prevents the commencing of an action to enforce the lien. (Petition, ¶ 1-8 & Verification & Ex. A.)

V. Civ. Code, § 8486

Petitioner Elkabetz served this Petition on Respondent Azoulay on October 11, 2023, i.e., more than 15 days prior to this hearing. (10/13/23 POS.) Respondent Azoulay failed to oppose this Petition despite this Court’s October 19, 2023 minutes.

V. Civ. Code, § 8490, subds. (a)-(a)(4)

Because all the requirements for petitioning the release of a mechanic’s lien have been satisfied, and because Respondent Azoulay failed to oppose the Petition, Petitioner Elkabetz’s Petition is GRANTED. 

Conclusion

The hearing on Petitioner Vitali Elkabetz’s Petition for Release of Property from Lien (Cal. Civil Code § 8490) is GRANTED because he satisfied all the requirements for petitioning the release of a mechanic’s lien and because Respondent Azoulay failed to oppose the Petition.

The Court RELEASES the Property located at 1651 S. Rimpau Blvd., Los Angeles, CA 90019-5658—described as “The Northerly 100 feet of Lot 83 of Tract No. 569, in the City of Los Angeles, County of Los Angeles, State of California, as per map recorded in Book 17, Pages 66 and 67 of Maps, in the office of the County Recorder of said county”; “APN: 5067-007-037”—from the May 22, 2023 lien recorded with the Los Angeles County Recorder’s Office as instrument number 20200561601. (Civ. Code, § 8490, subds. (a)-(a)(4).)