Judge Katherine Chilton, Case 22STCP02928 2022-12-09 Tentative Ruling

Judge: Katherine Chilton, Case: 22STCP02928, Date: 2022-12-09 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 25 at the Spring Street Courthouse up until the morning of the motion hearing. The e-mail address is SSCdept25@lacourt.org. The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.
Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time. **Please note we no longer use CourtCall**

Case Number: 22STCP02928 Hearing Date: December 9, 2022 Dept: 25

PROCEEDINGS: PETITION TO RELEASE PROPERTY FROM MECHANIC’S LIEN

MOVING PARTY: Petitioners Desiree Robinson, et al.

RESP. PARTY: None

PETITION FOR RELEASE OF MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

Petitioners Desiree Robinson, et al.’s Petition for Release of Mechanic’s Lien is CONTINUED TO JANUARY 11, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner 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) 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 7, 2022 [ ] Late [X] None

REPLY: None filed as of December 7, 2022 [ ] Late [X] None

ANALYSIS:

I. Background

On August 5, 2022, Petitioners Desiree Robinson (“Desiree”) and J.D. Robinson (“J.D.”) (collectively “Petitioners”) filed the instant verified Petition for Decree to Release Property from Mechanic’s Lien ( “Petition”) against Respondents Dave Bischof (“Bischof”) and Dave Bischof Inc. (“Dave Bischof Inc.”) (collectively “Respondents”). The Petition seeks an order releasing property commonly known as 724 N. 1st Street, Montebello, California 90640 ( “Subject Property”) from a mechanic’s lien filed on January 21, 2020, by Respondents. (Pet. ¶ 1.)

Petitioner filed a proof of service demonstrating that Respondents were personally served with the Petition, Notice of Hearing, and other relevant documents on August 20, 2022, at 14728 Bledsoe Street, Sylmar, CA 91342. (8-26-22 Proofs 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).)

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).)

Here, Petitioners filed Proofs of Service indicating that Respondents Bischof and Dave Bischof Inc. were personally served with the Petition, Notice of Hearing, and other related documents on August 20, 2022, at 14728 Bledsoe Street, Sylmar, CA 91342. (8-26-22 Proofs of Service.) However, Petitioners have not filed a contract, claim of lien, or any other document that proves Respondents were served at the correct address. Thus, Petitioners have not met their burden to prove that Respondents were properly served.

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.

(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, Petitioners are the successors-in-interest to the owner of the property at the time that services were rendered. (Pet. ¶ 7.) Petitioners state that they gave the claimant notice demanding a release of the lien and the claimant refused to release the mechanic’s lien. (Ibid. at ¶ 4.) However, Petitioners do not indicate when they gave notice and have not attached any proof of this notice.

Furthermore, Petitioners have filed the instant verified Petition, which states that the mechanic’s lien, Document No. 20200077164, was recorded with the Los Angeles County Recorder’s Office on January 21, 2020; however, Petitioners have not attached a certified copy of the mechanic’s lien. (Ibid. at ¶ 1.)

The Petition sets forth the legal description of the Subject Property and states that no action was filed within 90-days of recording of the lien. (Ibid. at ¶¶ 1-2.) Petitioners also state that “[n]o extension of credit has been granted,” Petitioners have not filed for bankruptcy, and no other restraint exists preventing Respondent from filing an action to enforce the lien. (Ibid. at ¶¶ 3, 5.)

Given that the Petition contains several deficiencies, the Court CONTINUES the hearing on the Petition. Petitioners are ordered to file a certified copy of the mechanic’s lien, proof of notice to release mechanic’s lien, and proof that Respondents were served with the Petition, Notice of Petition, and related documents at the proper address in compliance with Civil Code § 8108.

Petitioners also request attorney’s fees and costs for filing the instant Petition. If the Petition is granted, Petitioners may request attorney’s fees and costs pursuant to a separate noticed motion under Civil Code § 8488.

IV. Conclusion & Order

For the foregoing reasons,

Moving parties are ordered to give notice.