Judge: Katherine Chilton, Case: 22STCP03755, Date: 2023-02-17 Tentative Ruling

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Case Number: 22STCP03755    Hearing Date: February 17, 2023    Dept: 25

PROCEEDINGS:      PETITION TO RELEASE PROPERTY FROM MECHANIC’S LIEN

MOVING PARTY:   Petitioners Maria Cervantes, et al.

RESP. PARTY:         None

PETITION FOR RELEASE OF MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

The Petition for Release of Mechanic’s Lien filed by Petitioners Maria Cervantes, et al. PLACED OFF CALENDAR AS MOOT.

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:          Filed on February 3, 2023.                                    [   ] Late                      [   ] None

REPLY:                     None filed as of February 8, 2023.                       [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 14, 2022, Petitioners Maria Cervantes (“Maria”) and Javier S. Cervantes (“Javier”) (collectively “Petitioners”), filed the instant verified Petition to Remove Mechanic’s Lien (“Petition”) against Respondent Forty General Building Inc. (“Respondent”).  The Petition seeks an order releasing property commonly known as 9503 Buell Street, Downey, CA 90241 (“Subject Property”) from a mechanic’s lien filed on January 1, 2021, by Respondent.  (Pet. ¶¶ 1-2.)

Petitioners filed a proof of service demonstrating that Respondent was served with the Petition, Notice of Hearing, and supplemental papers, by certified mail, postage prepaid, return receipt requested, at 6929 El Selinda Ave, Bell Gardens, CA 90201, on January 12, 2023.  (1-26-23 Proof of Service.)

            On February 3, 2023, Respondent filed a Notice of Petition Mute [sic], as well as Declaration of its counsel providing proof of release of Mechanic’s Lien.

            Petitioner has not filed a reply.

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).)

“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).)

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.)

III.            Discussion

Petitioners are the owners of the Subject Property.  (Pet. ¶ 1.)  Petitioners state that on June 29, 2022, Petitioners’ counsel sent the Respondent correspondence demanding a release of the lien; Respondent has not responded to Petitioners or their counsel and is unwilling to release the mechanic’s lien.  (Ibid. at ¶ 6, Exs. 2-3.)  The Petition sets forth the legal description of the Subject Property and states that “[n]o action has been filed to foreclosure the Lien” and the period for enforcing the lien has expired.  (Ibid. at ¶¶ 2-3.)  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 ¶¶ 3-4.)

Furthermore, Petitioners have filed the instant verified Petition, which states that the mechanic’s lien, Document No. 20210088098, was recorded with the Los Angeles County Office of the County Recorder on January 1, 2021.  (Ibid. at ¶ 1.)  Although Petitioners have filed a copy of the Mechanic’s Lien, they have not filed a certified copy.  (Ibid. at ¶ 5, Ex. 1.)

Petitioners filed Proof of Service demonstrating that Respondent was served with the Petition, Notice of Hearing, and supplemental papers, by certified mail, postage prepaid, return receipt requested, at 6929 El Selinda Ave, Bell Gardens, CA 90201, on January 12, 2023.  (1-26-23 Proof of Service.)  The same address is listed for Respondent on the Mechanic’s Lien.  (Pet. ¶ 5, Ex. 1.)

Petitioners request attorney’s fees in the sum of $2,500.00.  (Ibid. at ¶ 8.)

            On February 3, 2023, Counsel for Respondent filed a declaration indicating that the Mechanic’s Lien on the Subject Property has been released.  (Holbrook Decl. ¶ 2, Ex. 1.)  Counsel states that he has sent an email to Petitioners’ counsel with this information, but has not received a response.

            Having reviewed the notarized copy of the Release of Claim of Mechanic’s Lien, dated July 18, 2022, the Court finds that the instant Motion is MOOT.  Petitioners’ request for attorney’s fees is accordingly DENIED.

IV.           Conclusion & Order

For the foregoing reasons,

The Petition for Release of Mechanic’s Lien filed by Petitioners Maria Cervantes, et al. PLACED OFF CALENDAR AS MOOT.  Petitioners’ request for attorney’s fees is accordingly DENIED.

Moving parties are ordered to give notice.