Judge Katherine Chilton, Case 22STCP04437 2023-04-27 Tentative Ruling

Judge: Katherine Chilton, Case: 22STCP04437, Date: 2023-04-27 Tentative Ruling

Case Number: 22STCP04437 Hearing Date: April 27, 2023 Dept: 25

PROCEEDINGS: PETITION FOR RELEASE OF MECHANIC’S LIEN

MOVING PARTY: Petitioner Rebecca Reines, Trustee of the Joseph and Rebecca Reines 2013 Trust under declaration of Trust dated June 26, 2023

RESP. PARTY: None

PETITION TO RELEASE MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

Petitioner Rebecca Reines’ Petition to Release Mechanic’s Lien is CONTINUED TO MAY 30, 2023 at 10:30 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 April 24, 2023 [ ] Late [X] None

REPLY: None filed as of April 24, 2023 [ ] Late [X] None

ANALYSIS:

I. Background

On December 22, 2022, Petitioner Rebecca Reines, Trustee of the Joseph and Rebecca Reines 2013 Trust under declaration of Trust dated June 26, 2023 (“Petitioner”) filed the instant verified Petition for Release of Property From Mechanic’s Lien (the “Petition”) against Respondent Mike Heinle Construction (“Respondent”). The Petition seeks an order releasing property commonly known as 1106 Emerald Street, Redondo Beach, CA 90277 (the “Property”) from a mechanic’s lien filed on June 15, 2022 by Respondent. (Pet., ¶¶ 1, 4.)

Petitioners filed a proof of service demonstrating Respondent was substitute served with the Petition and notice of hearing on December 29, 2022 at 8262 Peters Ave., Midway City, CA 92655 (the “Peters Address”). (01/03/23 Proof of Service.) The proof of service also includes a declaration of due diligence and a declaration of mailing demonstrating the documents were mailed to Respondent to the Peters Address on December 30, 2022. (Id.)

No response was 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, subd. (a).) A claimant must commence an action to enforce a lien within 90 days of recording the lien. (Civ. Code, § 8460, subd. (a).) Section 8460 further provides that “[i]f the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.” (Civ. Code, § 8460, subd. (a).) Section 8460 also provides that 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, subd. (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, subd. (b).) Section 8108 provides addresses at which a respondent must be served, depending on the title of the person to be served. The petitioner bears the burden of proving he complied with service and date for hearing requirements. (Civ. Code. § 8488, subd. (a).)

As discussed above, Respondent was substitute served on December 29 and December 30 at the Peters Street Address. The Peters Address is the same address that Respondent listed on the Claim of Mechanic’s Lien filed with the County Recorder’s Office. (Pet., Exh. A; Goldberg Supp. Decl., Exh. A) Thus, the Court finds the Petition was properly served on Respondent.

B. Petition Requirements

Civil Code section 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.)

The instant Petition is verified and is accompanied by an uncertified copy of the Claim of Mechanic’s Lien, Document No. 20220631553, filed with the Los Angeles County Recorder’s Office on December 28, 2020. (Pet. Exh. A.) On December 29, 2022 Petitioner filed a certified copy of the Mechanic’s Lien through a supplemental declaration; however, it is unclear whether the supplemental declaration was served on Respondent because the supplemental declaration itself does not have a proof of service, and the proof of substituted service of the Petition does not include the supplemental declaration as a document that was served on Respondent. (See Goldberg Supp. Decl., Exh. A; 01/03/23 Proof of Service.)

The Petition includes a legal description of the property, states that no extension of credit has been granted, that no action to enforce the lien was filed, that the 90-day time period to enforce the lien has expired, that Petitioners have not filed for bankruptcy, and that no other restraint exists preventing Respondent from filing an action to enforce the lien. (Pet., ¶¶ 1, 5-6, 10-11.)

Petitioner also includes a copy of a June 28, 2022 letter that was mailed to Respondent at the Peters Address demanding that the mechanic’s lien be released. (Id. at ¶ 7, Exh. B.) To date, Respondent has not removed the Mechanic’s Lien. (Id. at ¶ 9).

As stated above, it is unclear whether the supplemental declaration was served on Respondent. Although most requirements have been met, Section 8484, subdivision (a), requires a certified copy of the claim of lien. Thus, the Court will CONTINUE the hearing so that Petitioner may file a proof of service of the supplemental declaration on Respondent.

IV. Conclusion & Order

For the foregoing reasons, Petitioner Rebecca Reines’ Petition to Release Mechanic’s Lien is CONTINUED TO MAY 30, 2023 at 10:30 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.