Judge Katherine Chilton, Case 22STCP01224 2022-08-09 Tentative Ruling

Judge: Katherine Chilton, Case: 22STCP01224, Date: 2022-08-09 Tentative Ruling

Case Number: 22STCP01224 Hearing Date: August 9, 2022 Dept: 25

PROCEEDINGS: PETITION TO RELEASE PROPERTY FROM MECHANIC’S LIEN

MOVING PARTY: Petitioners Prince and Alison Jones, Trustees of the Jones Trust

RESP. PARTY: None

PETITION TO RELEASE PROPERTY FROM MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

Petitioners Prince and Alison Jones’s Petition to Release Property from Mechanic’s Lien is CONTINUED TO SEPTEMBER 12, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioners must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Petition being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] At least 15 Days Lapsed (Civ. Code § 8486(b)) OK

[X] Correct Manner of Service (Civ. Code § 8486(b)) OK

OPPOSITION: None filed as of August 4, 2022 [ ] Late [X] None

REPLY: None filed as of August 4, 2022 [ ] Late [X] None

ANALYSIS:

I. Background

On April 5, 2022, Petitioners Prince and Alison Jones, Trustees of the Jones Trust (“Petitioners”) filed the instant verified Petition for Release of Property from Mechanic’s Lien (the “Petition”) against Respondent Selah Roofing Corporation (“Respondent”). The Petition seeks an order releasing property commonly known as 5989 West 75th Street, Los Angeles, CA 90045 (the “Subject Property”) from a mechanic’s lien filed on December 2, 2021, by Respondent. (Pet. ¶¶ 1, 3.)

Petitioners filed a proof of service demonstrating Respondent was served by mail with the Petition and Notice of Hearing on July 6, 2022, at 9501 Slauson Avenue, Pico Rivera, CA 90660. (7-6-22 Proof of Service.)

Respondent did not file a response.

II. Legal Standard

After a mechanic’s lien has been recorded, “[t]he 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(a).) A claimant must commence an action to enforce a lien within 90 days of recording the lien, otherwise, “the claim of lien expires and is unenforceable.” (Civ. Code, § 8460(a).) However, the 90-day time limit to commence an action to enforce a lien does not apply if there was an agreement to extend credit and a notice of that fact was recorded within 90 days after recordation of the claim of lien or 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. (Civ. Code, § 8460(b).)

Civil Code § 8484 requires that the petition for release order be verified by the petitioner and allege 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.

(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.

A property owner may not petition for a release order until he or she gives the claimant notice demanding that the claimant execute and record a release of lien claim at least ten days before filing the petition. (Civ. Code § 8482.)

III. Discussion

A. Service Requirements

“The petitioner 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(b).) Civil Code § 8108 provides addresses at which a respondent must be served, depending on the title of the person to be served. For example, a claimant should be served at the address on the “claimant’s contract, preliminary notice, claim of lien, stop payment notice… [etc.].” (Civ. Code § 8108(e).) The petitioner bears the burden of proving that he or she complied with service and date for hearing requirements. (Civ. Code. § 8488(a).)

Respondent was served with Petition and Notice of Hearing on July 6, 2022, at 9501 Slauson Avenue, Pico Rivera, CA 90660, which is the address that is listed for Respondent on the Claim of Mechanic’s Lien filed with the County Recorder’s Office. (7-6-22 Proof of Service; Petition p. 10 – Ex. 2.) Service was made through United States mail. (7-6-22 Proof of Service.)

The service requirements of Civil Code § 8486 have been satisfied.

B. Petition Requirements

Petitioners state that the Respondent completed all work on their Property and they made all payments on or before April 21, 2021. (Pet. ¶ 3, 5.) However, Respondent recorded the lien on December 2, 2021, in violation of Civil Code § 8412. (Pet. ¶ 4.) Civil Code § 8412 requires a direct contractor to record a claim of lien after completing its obligations in the contract and before the earlier of “(a) [n]inety days after completion of the work of improvement” or “(b)[s]ixty days after the owner records a notice of completion or cessation.” Petitioners state that no work was performed after April 20, 2021, and no Notice of Completion was recorded. (Pet. ¶ 5.) Since the lien was recorded on December 2, 2021, more than ninety (90) days after the work was completed, the recording was not timely. Respondent has not filed an opposition.

Furthermore, on December 14, 2021, Petitioners sent Respondent a written demand to remove the lien at Respondent’s address listed on the Claim of Mechanics’ Lien. (Pet. ¶ 5; Ex. 3.) Petitioner contends that “Respondent is unwilling to execute a release of its lien.” (Pet. ¶ 5.) Subsequently, Petitioners filed the instant verified Petition accompanied by a copy of the Claim of Mechanic’s Lien, Document No. 20211786080, filed with the Los Angeles County Recorder’s Office on December 2, 2021. (Pet. ¶ 3, Verification, Ex. 2.) The Court notes that the copy of the Claim is not certified. (Ibid.) The Petition sets forth the legal description of the Subject Property in Exhibit 1. (Pet. 7 – Ex. 1.) Finally, “Petitioner has not filed for relief under any law governing bankruptcy, and there exists no other restraint to prevent Respondent from filing to foreclose the lien.” (Pet. ¶ 7.) Petitioners do not state whether there has been an extension of credit or whether an action to enforce the lien is pending. However, since the recording of the lien was not timely, this information is not necessary.

The Court finds that Petitioners have satisfied all requirements of filing the instant Petition, except for filing a certified copy of the Claim of Mechanic’s Lien. The hearing is CONTINUED, to allow Petitioners an opportunity to submit a certified copy of the Claim of Mechanic’s Lien.

IV. Conclusion & Order

For the foregoing reasons, Petitioners Prince and Alison Jones’s Petition to Release Property from Mechanic’s Lien is CONTINUED TO SEPTEMBER 12, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioners must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Petition being placed off calendar or denied.

Moving parties are ordered to give notice.