Judge Kerry Bensinger, Case Number: 24STCV08288, Date: 2024-08-08 Tentative Ruling

This case concerns the property located at 12428 Laurel Terrace Drive, Studio City, California 91604 (the “Property”). Defendant Mehrdad Adjari (Defendant or Adjari) is the owner of the Property. In 2021, Adjari and Plaintiffs Mike Tehrani and Eskan Builders, Corp. (Plaintiffs) entered into a written contract wherein Plaintiff agreed to provide labor, services, equipment, or materials for a construction project on the Property. Plaintiffs completed the work. Adjari failed to pay Plaintiffs for the amount due. This action followed on April 2, 2024.

Before the court are three matters: Defendant’s two (2) Petitions for Release of Mechanic’s Lien and Defendant’s Demurrer to the Complaint.

The court notes that Plaintiffs filed the First Amended Complaint on July 26, 2024. “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).) Here, because Plaintiffs served its amended pleading on the date their opposition to the demurrer would have been due, the court finds that Defendant’s Demurrer is MOOT.

The court proceeds to consider Defendant’s Petitions for Release of Mechanic’s Lien.

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).)

In March 2023 and May 2024, Plaintiffs recorded Mechanics Liens on the Property. The liens are recorded in the Official Records of Los Angeles County as document numbers 20230170026 (the “First Lien”) and 20240323880 (the “Second Lien”), respectively. Defendant now seek orders directing the release of the liens.

Defendant argues the First Lien should be released because Plaintiffs did not timely commence an action to enforce the lien.

Here, the First Lien was recorded on March 15, 2023. Thereafter, Plaintiffs filed this action more than 90 days later on April 2, 2024. Therefore, under Civil Code section 8460, Plaintiffs’ First Lien expired and is unenforceable.

In opposition, Plaintiffs lodge several procedural attacks to the Petition. As relevant here, Plaintiffs contend the Petition to Release the First Lien does not comply with statutory requirements.[1] The court agrees.

First, Defendant did not properly serve of the Petition. “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).) Notice shall be given to the person to be notified at the person's residence, the person's place of business, or, depending on the title of the person or entity to be served, at a specified address. (Civ. Code. § 8108.) The petitioner bears the burden of proving he complied with service and date for hearing requirements. (Civ. Code. § 8488, subd. (a).)

Here, Defendant served a copy of the Petition and notice of hearing on Plaintiffs’ counsel on May 23, 2024 via electronic service to “JSchmid@hbblaw.comq”. (Proof of Electronic Service, 5/23/24.) This is Plaintiffs’ Counsel’s electronic service address, misspelled. There is no proof Plaintiffs were served at any of the addresses specified in Civil Code section 8108. The service requirements have not been satisfied.

Second, Defendant did not comply with other procedural 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.

(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.

(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 manner of giving notice must comply with the requirements of Civil Code sections 8100, et. seq. (Id.)

Here, Defendant’s Petition has several sefects. The Petition is unverified, does not include a certified copy of Plaintiffs’ claim of lien filed on March 15, 2023, Serial No. 20230170026, does not indicate whether credit has been extended, and does not set forth the legal description of the Property. Further, although Defendant indicates that on April 1, 2024, he gave Plaintiffs notice under Civil Code section 8482 demanding that the First Lien be released, there is no proof the demand was served in compliance with Civil Code section 8100, et. seq.

Defendant may very well be entitled to an order directing the release of the First Lien. As the Defendant points out, Plaintiffs do not dispute they did not commence an action to enforce the First Lien within 90 days of recording the lien. Given this background, the court is inclined to award attorney fees.[2] However given the defects in Defendant’s Petition re First Lien, the court will continue the hearing to allow Defendant to cure the defects.

The same procedural defects in the Petition re First Lien are likewise applicable to the Petition re Second Lien. However, for the reasons stated below, a continuance of the Petition re Second Lien to cure the defects is not warranted.

Defendant argues the Second Lien should be released because Plaintiffs did not timely record the lien within 90 days. “A claimant other than a direct contractor may not enforce a lien unless the claimant records a claim of lien within the following times:

Here, Defendant contends the work was completed on March 15, 2023. Plaintiffs then recorded the Second Lien on or about May 16, 2024, which is more than ninety days later.

In opposition, Plaintiffs point to the allegations in its First Amended Complaint which states, “Plaintiffs are informed and believe that the work of improvement on the Project was completed on or about February 28, 2024.” (FAC, ¶ 54.) Thereafter, Plaintiffs recorded the Second Lien within the 90 day period.

In reply, Defendant pivots and argues the work is ongoing. And, because the work is ongoing, the Second Lien was recorded prematurely. At best, Defendant points to a factual dispute. This issue is best disposed by way of trial or summary judgment. Moreover, Defendant does not offer any evidence to substantiate the claim that work on the Property is ongoing.

Based on the foregoing, the Petition for Release of Second Mechanics Lien is DENIED without prejudice.

The Hearing for Petition for Release of Mechanic’s Lien from Property is CONTINUED to September 13, 2024, to allow Defendant to correct the defects noted in this order.

[1] Plaintiffs also argue that the notice of motion is defective and should be denied on this separate ground. The court is not persuaded. “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. (Citations.) This rule applies even when no notice was given at all. (Citations.) Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930; see also Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7–8.) Here, Plaintiffs filed an opposition to the Petition (and presumably will appear at the hearing). The challenge is waived.

[2] The First Lien requests attorney’s fees. However, as Plaintiffs correctly point out, the request was not included in the notice of the Petition for the First Lien. The same defect plagues Defendant’s Petition for Release of [the Second] Mechanics Lien.

[3] In opposition to the Petition re Second Lien, Plaintiffs point out that Civil Code section 3115 has been repealed. However, as indicate above, the 90-day requirement is now codified at Civil Code section 8414.