Judge: Christian R. Gullon, Case: 23PSCV00423, Date: 2023-10-26 Tentative Ruling

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Case Number: 23PSCV00423    Hearing Date: October 26, 2023    Dept: O

Tentative Ruling

PETITION FOR JUDGMENT RELEASING PROPERTY FROM MECHANICS LIEN is GRANTED, absent attorney fees.

Background

This case arises from subpar construction work.

On February 14, 2023, Plaintiff OMAR S. ANORGA filed suit against Defendants POOL LOGIC DESIGN AND CONSTRUCTION (“Defendant”), a California Corporation; OLD REPUBLIC SURETY COMPANY (“surety”), a Wisconsin Corporation; JEFF MARTIJA, an Individual for:

On June 13, 2023, after court order, Plaintiff served Defendant through the California Secretary of State pursuant to Corporations Code section 1702.

On June 28, 2023, Plaintiff dismissed the surety and Martija.

On July 5, 2023, Plaintiff filed a ‘EXPLANATORY DECLARATION OF OMAR S. ANORGA’ seeking a continuance of the 7/13 CMC due to prepaid vacation from 7/11-7/18.

On July 13, 2023, the court set an OSC re Plaintiff’s failure to appear the 7/13 CMC.

On September 5, 2023, default was entered against Pool Logic Design and Construction. That same day, Plaintiff filed the instant motion.

On October 16, 2023, Plaintiff filed an ‘EXPLANATORY DECLARATION OF OMAR S. ANORGA’ explaining that he did not attend the CMC due to vacation and that “the Court's clerk or judicial assistant advised [him] to submit a declaration explaining my absence and requesting a new date, which [he] did.”

Legal Standard

A mechanic's lien is a charge imposed upon specific property by which the property is made security for the reasonable value of labor or materials furnished by mechanics, materials men, contractors, subcontractors, etc.  A mechanic's lien has priority over any lien, mortgage, deed of trust, or encumbrance which may have attached subsequent to the time when building was commenced.  Civ. Code §3134.¿ 

¿

To remove the mechanic’s lien, the requirements set forth by Civil Code section 8480(a) must be followed. In turn, Civil Code § 8484 provides, as follows: 

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. 

Discussion

Here, the petition complies with all of Civil Code § 8484 requirements: On May 18, 2022, Defendant recorded a lien against Plaintiff’s home (legal description provided); that no action has been filed to enforce the lien and no extension of credit has been recorded; that the time period during which suit can be brought to enforce the lien has expired; Plaintiff has not filed for relief under any law governing bankrupts, and no other restraint exists to prevent the lien claimant from filing to enforce its lien; hearing on the petition were served on Defendant; and that despite Demand for Release of Lien Letter dated January 23, 2023, Defendant has not released the lien.

Aside from the merits, Plaintiff, who is an attorney and representing his own interests, seeks $1,500 in fees for consulting an outside attorney for the petition.

It is established that an attorney who chooses to litigate in propria persona and therefore does not pay or become liable to pay consideration in exchange for legal representation cannot recover “reasonable attorney’s fees. (Trope v. Katz (1995) 11 Cal.4th 274, 292.) That said, “an  attorney who represents himself is not precluded from recovering fees that he paid another attorney whom he retained to assist him in representing himself, under a reciprocal attorney fee clause, though the retained attorney was not the attorney of record.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 93-94.) Here, however, Plaintiff has only provided a self-serving declaration. Plaintiff has not provided a declaration from the counsel who helped with the petition nor has Plaintiff provided the parties’ formal, written agreement, which is necessary to establish whether $1,500 is reasonable in researching and preparing the petition. (Civil Code Section 8488(c) [“The prevailing party is entitled to reasonable attorney's fees.”].)

Therefore, absent a sufficient showing, the court declines to grant recovery of attorney fees.

Conclusion

Based on the foregoing, the described property is released from the claim of lien of Defendant Pool Logic Design and Construction, a California Corporation, but Plaintiff is not entitled to recover attorney’s fees incurred in the proceeding.