Judge: Holly J. Fujie, Case: 22STCP03293, Date: 2023-01-04 Tentative Ruling

Case Number: 22STCP03293    Hearing Date: January 4, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY:  Petitioners

The Court has considered the moving papers.  No opposition papers were filed.  Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure section 1005, subdivision (b).

BACKGROUND

            On September 27, 2022, Petitioners filed a verified petition (the “Petition”) for an order releasing their real property (the “Property”) from a mechanic’s lien recorded by Respondent.

DISCUSSION

Under Civil Code § 8460, subdivision (a), a mechanic’s lien expires and is unenforceable unless an action to enforce the lien is commenced within 90 days of its recording.  (Civ. Code § 8460, subd. (a).)  If the claimant has not timely commenced an enforcement action, the property owner may petition the court to release the lien.  (Id.)

At least 10 days before filing a petition to release the lien, the moving party must demand in writing that the claimant execute and record a release of the lien and set forth the grounds for that demand.  (Civ. Code § 8482.)  The petition must be verified.  (Civ. Code § 8484.)  In addition, the petition to release a mechanic’s lien must also 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 petition and notice of hearing must be served at least 15 days before the hearing and in the same manner as service of summons (or by certified or registered mail, postage prepaid, return receipt requested).  (Civ. Code § 8486.) 

The petitioner has the initial burden of proof to show compliance with the service and hearing date requirements, and the claimant has the burden of proof as to the validity of the lien.  (Civ. Code § 8488, subd. (a).)  If the petitioner prevails, the court shall order the property released from the lien.  (Civ. Code § 8488, subd. (b).)  The prevailing party is entitled to recover reasonable attorney’s fees.  (Civ. Code § 8488, subd. (c).) 

The Petition provides evidence of a mechanic’s lien recorded against the Property by Respondent on May 5, 2022.  (Exhibit A.)  Respondent did not thereafter file an action to enforce the lien.  On September 13, 2022, Petitioners sent Respondent a written demand to remove the lien.  (Exhibit B.)  Petitioners filed a notice of hearing on the same day that they filed the Petition.

On October 17, 2022, Petitioners filed a proof of service providing that the Petition and notice had been served on Respondent by substitute service.  The October 17, 2022 proof of service does not include a declaration of due diligence.

Petitioners request attorney’s fees in the amount of $1,591.65.  This amount represents: (1) 1.6 hours of work in connection with the Petition at an hourly rate of $425 per hour; (2) an anticipated two hours preparing for and attending the hearing; and (3) filing fees in the amount of $61.65.  (Declaration of Christine A. Chou (“Chou Decl.”) ¶ 4.)

The Court finds adequately sets forth a basis for relief.  Petitioners, have not, however, filed sufficient proof that Respondent received adequate notice under Civil Code sections 8108 and 8486.  In the event that Petitioners provide evidence that Respondent received sufficient notice of the Petition at the time of the hearing, the Court is inclined to grant the Petition and order that the lien recorded against the Property by Respondent on May 5, 2022 be released and that Respondent pay Petitioners’ attorney’s fees in the reasonable amount of $741.65, which represents 1.6 hours of work at a rate of $425 per hour and $61.65 in filing fees. 

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

        Dated this 4th day of January 2023