Judge: Frank M. Tavelman, Case: 23BBCV01628, Date: 2023-09-15 Tentative Ruling

Case Number: 23BBCV01628    Hearing Date: December 15, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTIONS TO RELEASE PROPERTY FROM MECHANIC’S LIEN

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

On July 18, 2023, Engineering and Seismic Construction, Inc. (“Plaintiff”) filed suit against 605 Cedar Gardens, LLC (“Defendant”) for claims arising out of an alleged breach in a construction contract. The Complaint contains five causes of action for (1) Breach of Contract, (2) Foreclosure of Mechanics Lien, (3) Reasonable Value for Services and Materials Furnished, (4) Account Stated, and (5) Agreed Sum for Materials Furnished.

On September 15, 2023, the Court granted Defendant’s motion to compel arbitration and issued a stay of the matter.  

Defendant now brings this motion to release the mechanic’s lien placed upon the property which was the site of the construction project. Neither party objects to the Court’s ruling on this limited matter in light of the litigation stay. It does not appear that enforcement of the mechanic’s lien is an issue which the Court ordered to arbitration pursuant to C.C.P. § 1281.4. Further, the statute governing actions brought to enforce mechanic’s liens, C.C.P. § 1281.5, specifically contemplates that the issues of the lien and the dispute subject to arbitration are separate matters. Accordingly, the Court is satisfied it retains jurisdiction to rule upon this motion.  

Plaintiff opposes the motion and Defendant replies.

ANALYSIS: 

I.          LEGAL STANDARD 

C.C.P. § 8480(a) provides “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.”

II.        MERITS  

Defendant moves this Court to release the property from the mechanic’s lien on grounds that its description of the property is fatally defective. Plaintiff argues Defendant’s petition is not appropriately verified and that the description of the property is sufficient to survive this motion. The Court will first address the verification issue and then the defect in the property description.

Verification

Plaintiff argues Defendant’s motion is not code compliant by virtue of failure to verify the petition. California Civil Code § 8484 states that a petition to release a mechanic’s lien must be verified.

Defendant argues in reply that the petition was properly verified via the declaration of Elias J. Abboud, which stated “I am informed and believe and, on that ground, allege that the matters stated in the Motion for Release of Property from Lien are true.” (Abboud Decl. ¶ 2.) This statement was accompanied by statements attesting to the facts of the petition and included the date and location of execution. (Id.) The declaration was also signed under penalty of perjury. (Id.) The Court finds that the Abboud declaration adheres to the requirements of verification set forth in C.C.P. § 2015.5

Defect in Property Named

Defendant argues the petition should be granted because the mechanic’s lien encumbers a property which does not exist. Defendant argues that the address “605 Cedar Avenue Burbank, California 91501” is not present on any parcel reports or assessors map. (Velez Decl. Exh. C, D, E, F, and G.) Defendant argues the correct address for the parcel at issue in this case is 650 S. 6th Street, Burbank, CA. (Abboud Decl. ¶8.) This address results from Defendant’s application to the city of Burbank to combine the parcels located at 601, 603, 609, and 615 E. Cedar Avenue. (Id.)

C.C.P. § 8416(a)(5) provides that a claim of lien shall contain description of the site sufficient for identification. Courts have generally concluded that this requirement is satisfied if the description provided is sufficient to enable a party familiar with the locality to identify the property with reasonable certainty to the exclusion of others. (Borello v. Eichler Homes, Inc. (1963) 221 Cal.App.2d 487, 492.) Errors in the description may be disregarded if the identification of the property is otherwise sufficient, so long as there is no evidence of an attempt at fraud. (Id.)

Defendant argues that the description of the property goes beyond surface defect, in that the error renders the parcel undiscernible. The Court agrees. The cases upon which Plaintiff relies are factually inapposite to the error in describing the parcel in this case. In Bothum v. Kreis, the California Court of Appeal found an excusable error in description where a lien “…gave the street number wrong, omitted to give the number of the tract block, omitted the word Ganahl in the name of the tract, and referred to Book 22 of maps instead of to Book 22 of miscellaneous records.”  The property description ,“[R]ead as follows: "2546 Folsom street, Los Angeles, California, and which premises claimant is informed and believes to be described as lot five, Brooklyn Heights Tract, as per map thereof recorded in book 22, page 17 of maps, records of Los Angeles County, California." The Court found that description was such that “a party familiar with the locality to identify the premises intended to be described with reasonable certainty to the exclusion of others." (Bothum v. Kreis (1929) 101 Cal. App. 683, 684.)

Here, the description of the property is not a few numbers off nor is the citation to the record slightly incorrect. Instead, Plaintiff’s lien includes an address which does not exist and does not include an assessor’s parcel number or any other identifying information. It appears that “Cedar Ave.” is not even a street which exists in Burbank, as only an East Cedar Avenue is present on the parcel maps. (Velez Decl. Exh. C.)

Plaintiff’s reliance on American Transit Mix Co. v. Weber is also misplaced. The Court notes American Transit concerned the validity of a notice of nonresponsibility and not the validity of the underlying mechanic’s lien. (American Transit Mix Co. v. Weber (1951) 106 Cal.App.2d 74, 76.) The decision to disregard the error in identifying the parcel in American Transit was contingent upon the fact that there was no subsequent third-party purchaser which would have been misled by the inaccurate notice of nonresponsibility.

The Court also finds Plaintiff’s argument that it was misled to use this address by the construction contract to be unpersuasive. Plaintiff offers a single page from the contract between the parties as Exhibit A to its opposition. This page does indeed list the address for the project as 605 Cedar Avenue. (Ghazarian Decl. ¶ A.) However, Defendant provides other portions of the agreement which contain the addresses of “650 S. 6^th St” and “601 Cedar Ave”. (Reply Decl. Exhs. C &D.) A trial court has discretion to consider new evidence in reply papers supporting a motion so long as the opposing party has notice and an opportunity to respond. (Los Angeles Unified School Dist. v. Torres Const. Corp. (2020) 57 Cal.App.5th 480, 540.) Evidence used to fill gaps in the original evidence created by the opposition is considered most appropriate upon reply. (Id.) Here, Defendant offers for the first time in reply evidence about the addresses present in the parties’ contract. This evidence appropriately fills the gaps created by Plaintiff’s selective production of the contract in opposition. As such, Defendant’s evidence in reply is appropriate and may be considered.

At the very least it appears the agreement between the parties contained several different addresses for the project. Regardless, Defendant has evidenced that the correct location of the project is the “650 S. 6th Street” address. As Plaintiff was the one who filed the lien, it was their responsibility to ensure the appropriate description of the property was entered. It does not stand to reason that one can encumber a property with a mechanic’s lien without first ensuring that the appropriate property is being encumbered.

Accordingly, the motion to release the property from the mechanic’s line is GRANTED.

--- 

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

605 Cedar Gardens, LLC’s Motion to Release property from Mechanic’s Lien came on regularly for hearing on December 15, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO RELEASE THE PROPERTY FROM LIEN IS GRANTED.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 15, 2023                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles