Judge: Katherine Chilton, Case: 22STCP02858, Date: 2022-12-06 Tentative Ruling

Case Number: 22STCP02858     Hearing Date: December 6, 2022    Dept: 25

PROCEEDINGS:      PETITION FOR RELEASE OF MECHANIC’S LIEN

MOVING PARTY:   Petitioner Elizabeth Marie Thurm, Co-Trustee of Elizabeth M. Thurm and Karl S. Thurm Living Trust

RESP. PARTY:         None

PETITION FOR RELEASE OF MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

Petitioner Thurm’s Petition for Release of Mechanic’s Lien is GRANTED.

SERVICE:

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

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

            [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 December 1, 2022                        [   ] Late                      [X] None

REPLY:                     None filed as of December 1, 2022                        [   ] Late                      [X] None

ANALYSIS:

I.                Background

On August 2, 2022, Petitioner Elizabeth Marie Thurm, Co-Trustee of the Elizabeth M. Thurm and Karl S. Thurm Living Trust dated July 10, 2021 (“Petitioner”) filed the instant verified Petition for Order Releasing Property from Claim of Mechanic’s Lien ( “Petition”) against Respondent Flores Pool Builder & Remodeling, Inc. (“Respondent”).  The Petition seeks an order releasing property commonly known as 9111 Buhman Ave., Downey, California 90240 ( “Subject Property”) from a mechanic’s lien filed on December 11, 2020, by Respondent.  (Pet. ¶¶ 1, 3.)

Petitioner filed a proof of service demonstrating Respondent was served by certified mail with the Petition, Notice of Hearing, and other relevant documents on August 3, 2022, at 11364 Broadmead St., South El Monte, CA 91733.  (8-4-22 Proof of Service.)

On August 12, 2022, Petitioner filed a Substitution of Attorney, indicating that she will appear in the case in propria persona.  (8-12-22 Substitution.)

            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).)

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, or claim against a payment bond, or on the records of the Contractors' State License Board.”  (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, Notice of Hearing, and other related documents on August 3, 2022, via certified mail, return receipt requested, at 11364 Broadmead St., South El Monte, CA 91733.  (8-4-22 Proof of Service.)  This is Respondent’s address on the California Secretary of State Business site so the Court will accept it as Respondent’s proper address.

The Court requires additional proof that Respondent was served at the correct address.  The Mechanic’s Lien does not list Respondent’s address and Petitioner has not provided any other documentation proving that Respondent was served at the correct address.

B. Petition Requirements

            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.

(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.

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.)

Here, Petitioner has satisfied all requirements of Civil Code §§ 8482 and 8484.  On April 26, 2022, Petitioner sent Respondent a written demand to remove the lien at Respondent’s address listed with the Contractors' State License Board.  (Pet. ¶ 6; Phelps Decl. ¶ 4; Ex. C.)  Petitioner contends that “Respondent has not recorded a lien release.”  (Pet. ¶ 6.)  Subsequently, Petitioner filed the instant verified Petition accompanied by a certified copy of the Mechanics’ Lien Claim, Document No. 20201633560, filed with the Los Angeles County Recorder’s Office on December 11, 2020.  (Pet. ¶ 3; Phelps Decl. ¶ 3, Ex. B.)  The Petition sets forth the legal description of the Subject Property, states that “Petitioner did not grant an extension of credit to Respondent,” and “[a]n action to enforce the claim of lien recorded by Respondent is not pending.”  (Pet. ¶¶ 4, 7; Phelps Decl. ¶ 2, Ex. A.)  Furthermore, Petitioner has not filed for bankruptcy, and no other restraint exists preventing Respondent from filing an action to enforce the lien.  (Pet. ¶ 5.)  Since “Respondent did not commence an action to enforce its claim of mechanics lien within 90 days of recording its lien,” the Court should grant the Petition.  (Pet. p. 7.) Accordingly, the Petition is granted.

Petitioner requests attorney’s fees and costs associated with filing the Petition.  Pursuant to Civil Code § 8488(c), “[t]he prevailing party is entitled to reasonable attorney’s fees.”  Since the Petition is granted, Petitioner is deemed to be the prevailing party.  Attorney’s fees under Civil Code § 8488 may be sought pursuant to a noticed motion.

IV.           Conclusion & Order

For the foregoing reasons,

Petitioner Thurm’s Petition for Release of Mechanic’s Lien is GRANTED. 

Moving parties are ordered to give notice.