Judge: Katherine Chilton, Case: 22STCP03544, Date: 2023-03-06 Tentative Ruling

Case Number: 22STCP03544    Hearing Date: March 6, 2023    Dept: 25

PROCEEDINGS:      PETITION TO RELEASE PROPERTY FROM MECHANIC’S LIEN

MOVING PARTY:   Petitioner Margaret Arvizo

RESP. PARTY:         None

PETITION FOR RELEASE OF MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

The hearing on the Petition for Release of Mechanic’s Lien filed by Petitioner Margaret Arvizo is CONTINUED TO APRIL 13, 2023 at 10:00 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)        NONE

                        [X] Correct Address (CCP §§ 1013, 1013a)                           NONE

                        [X] At least 15 Days Lapsed (Civ. Code § 8486(b))                        NONE

                        [X] Correct Manner of Service (Civ. Code § 8486(b))            NONE

OPPOSITION:          None filed as of March 1, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of March 1, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On September 30, 2022, Petitioner Margaret Arvizo (“Petitioner”) filed the instant verified Petition for Release of Property from Lien (“Petition”) against Respondents William H. Martin, IV, dba Southwest Painting Company (“Southwest”) and William H. Martin IV, an individual (“Martin IV”), (collectively “Respondents”).  The Petition seeks an order releasing property commonly known as 974 W. Kensington Road, Los Angeles, CA 90026 (“Subject Property”) from a mechanic’s lien filed on September 17, 2008, by Respondent.  (Pet. ¶¶ 1-3.)

            No reply has been filed.

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).)

The Court notes that Petitioner has not filed proof that Respondents have been served with the Petition and Notice of Hearing.

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.)

On July 25, 2022, Petitioner sent Respondent Martin IV a letter, at the address listed on the Contractors State License, demanding a release of the lien.  (Pet. ¶ 6, Ex. 6.)  Respondent did not respond to Petitioner’s demand and is not willing to release the lien.  (Ibid. at ¶¶ 5, 7.)  The Court notes that Petitioner has not filed any proof demonstrating that the address where Respondent was served with the demand letter, 1040 East Appleton, #11, Long Beach, CA 90802, is listed on the Contractor State License.

Subsequently, on September 30, 2022, Petitioner filed the instant verified Petition, which states that the mechanic’s lien, Document No. 20081673680, was recorded with the Los Angeles County Recorder’s Office on September 17, 2008.  (Ibid. at ¶ 3, Ex. A.)  Petitioner has attached a certified copy of the mechanic’s lien.  (Ibid.)

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, 4.)  Petitioner also states that “[n]o extension of credit has been recorded,” Petitioner has not filed for bankruptcy, and no other restraint exists preventing Respondent from filing an action to enforce the lien.  (Ibid. at ¶¶ 4, 8.)

Petitioner seeks to have the Subject Property released from the mechanic’s lien and requests an order granting her reasonable attorney’s fees and costs.

Given the deficiencies noted above, the Court CONTINUES the hearing on the Petition.  Petitioner is ordered to serve Respondents with the Petition and Notice of Hearing and to file proof showing that Respondents were served with the demand letter at the right address.

If the Petition is granted at the next scheduled hearing, Petitioner may request attorney’s fees and costs pursuant to a separate noticed motion under Civil Code § 8488.

IV.           Conclusion & Order

For the foregoing reasons,

The hearing on the Petition for Release of Mechanic’s Lien filed by Petitioner Margaret Arvizo is CONTINUED TO APRIL 13, 2023 at 10:00 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.

Moving parties are ordered to give notice.