Judge: Latrice A. G. Byrdsong, Case: 22STLC05141, Date: 2023-10-18 Tentative Ruling

Case Number: 22STLC05141    Hearing Date: October 18, 2023    Dept: 25

Hearing Date:                         Wednesday, October 18, 2023

Case Name:                             CONCEPT MILLWORK DESIGN AND DEVELOPMENT INC., a California corporation v. 904 NORTH LA BREA OWNER LLC, a California limited liability company; and DOES 1-10

Case No.:                                22STLC05141

Motion:                                   Motion to Expunge Lien and for Attorney Fees

Moving Party:                         Defendants Tanc & Vogel Construction, LLC dba Tanco General Contractors and 904 North La Brea Owner LLC

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:           Defendants Tanc & Vogel Construction, LLC dba Tanco General Contractors and 904 North La Brea Owner LLC’s  Motion to Expunge Lien is GRANTED.

                                                Defendants Tanc & Vogel Construction, LLC dba Tanco General Contractors and 904 North La Brea Owner LLC’s  request for attorney’s fees is GRANTED in the amount of $1,600.

BACKGROUND

            On August 4, 2022, Plaintiff Concept Millwork Design and Development, Inc. (“Plaintiff”) initiated this action seeking solely to foreclose on a mechanic’s lien recorded against 900 North La Brea Avenue, Los Angeles, California 90038. A claim of mechanic’s lien had been previously recorded against the subject property on May 22, 2022. Thereafter, on May 22, 2023, Plaintiff filed the operative First Amended Complaint against Defendants Tanc & Vogel Construction, LLC dba Tanco General Contractors (“Tanco General Contractors”) and 904 North La Brea Owner LLC (“904 North”) (collectively, “Defendants”) and Does 1 through 20 alleging the following causes of action: (1) breach of contract; (2) quantum meruit; (3) account stated; (4) open book account; and (5) foreclosure on mechanics lien.

            On August 24, 2023, Defendants filed the instant motion to expunge the mechanic’s lien and request for attorney fees.

MOVING PARTY POSITION

            Defendants move to expunge the mechanic’s lien filed by Plaintiff in the amount of $21,705.00 against the real property located at 900 N. La Brea Ave, West Hollywood, CA 90038 on the following grounds. First, Defendants argue that Plaintiff’s lien is defective because Plaintiff failed to provide preliminary notice as required by statute. Second, Tanco General Contractors properly recorded a release of lien bond in the amount of $27,131.25, which requires the lien to be expunged. Furthermore, Defendants seeks attorney fees in the amount of $1,600 pursuant to Civil Code § 8488(c).

OPPOSITION

            None filed as of October 13, 2023.

REPLY

            None filed as of October 13, 2023.

ANALYSIS

I.          Expunge 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(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(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).

A.        Lack of Preliminary Notice

Defendants first seek to expunge Plaintiff’s mechanic’s lien for failure to comply with the preliminary notice requirements of Civil Code § 8200.

“The right to enforce a mechanic’s lien depends upon a compliance with the requirements of the statute.”  Hogan v. Bigler (1908) 8 Cal.App. 71, 98.  “A claimant may enforce a lien only if the claimant has given preliminary notice to the extent required by Chapter 2 (commencing with Section 8200) and made proof of notice.”  Civ. Code § 8410.  Pursuant to Civil Code § 8410, such preliminary notice must be provided to the owner, the direct contractor, and construction lender, if any.

Here, Defendants argue that Plaintiff did not comply with Civil Code §§ 8200 and 8410 because the owner of the subject property was never given proper notice.  Motion at pp. 4-5.  Instead, preliminary notice was sent to an address in La Habra, and the Vice President and property manager of 904 North attests to have never received a preliminary notice indicating that Plaintiff intended to file a lien against the subject property.  See Jones Decl. ¶ 3.  For this reason, Defendant’s counsel informed Plaintiff’s counsel that that preliminary notice was defective.  Robson Decl. ¶ 2, Exh. E.

It is noted that Plaintiff has failed to file an opposition to rebut this argument. Thus, based on the evidence presented by Defendants, the Court finds that Plaintiff failed to abide by the preliminary notice requirement under Civil Code § 8410.

Accordingly, because preliminary notice was defective, the Court grants Defendants’ motion to expunge the mechanic’s lien on this ground.

B.        Recorded Release Bond

Next, Defendants argue that a release bond has been filed, and as a result, the mechanic’s lien should be expunged by operation of law.

Pursuant to Civil Code § 8424(a), it states in part: “An owner of real property or an owner of any interest in real property subject to a recorded claim of lien, or a direct contractor or subcontractor affected by the claim of lien, that disputes the correctness or validity of the claim may obtain release of the real property from the claim of lien by recording a lien release bond.” Furthermore, the “bond shall be in an amount equal to 125 percent of the amount of the claim of lien or 125 percent of the amount allocated in the claim of lien to the real property to be released.”  Civ. Code § 8424(b).  “On recordation of the bond, the real property is released from the claim of lien and from any action to enforce the lien.” Civ. Code § 8424(c).

Here, Defendants assert that Tanco, the general contractor, recorded a release bond that complies with Civil Code § 8424 on August 30, 2022.  Vogel Decl. ¶ 6, Exh. D. Upon review of the recorded release bond, it is for the amount of $27,131.25, which is equal to 125% of the recorded lien. While it does not appear that notice was provided to Plaintiff of the release bond, this is not dispositive because subject property was released by operation of law by the recordation of the bond.  See Civ. Code § 8424(c)-(d).

Accordingly, Defendant’s motion to release the mechanic’s lien is also granted on this ground because the recorded release bond complies with Civil Code § 8424.

C.        Attorney’s Fees and Costs

            Pursuant to Civil Code § 8488, the prevailing party in an action seeking a release order of a mechanic’s lien is entitled to reasonable attorney fees.  

Here, Defendants have successfully prevailed in expunging the lien. In connection with the instant motion, Defendants seek $1,600 in attorney fees, consisting of four hours at an hourly rate of $400. Under the circumstances, this amount is reasonable.

Accordingly, Defendants’ request for attorney fees in the amount of $1,600.00 is GRANTED.

II.        Conclusion

            Based on the foregoing, Defendants’ Motion to Expunge Lien and Request for Attorney Fees are GRANTED.

Counsel for Defendant is ordered to submit a Proposed form of Order for the Court's approval and signature within 10-days.

            Moving party is ordered to give notice.