Judge: Latrice A. G. Byrdsong, Case: 23STCP02097, Date: 2023-10-18 Tentative Ruling

Case Number: 23STCP02097    Hearing Date: October 18, 2023    Dept: 25

Hearing Date:                         Wednesday, October 18, 2023

Case Name:                             MARY ANN POTTS, an individual v. SCOTT D. POTTS, an individual; and DOES 1-20

Case No.:                                23STCP02097

Motion:                                   Verified Petition to Release Property from Mechanic’s Lien

Moving Party:                         Petitioner Mary Ann Potts

Responding Party:                   None

Notice:                                    OK

Ruling:           Petitioner Mary Ann Potts’ Verified Petition to Release Property from Mechanic’s Lien is GRANTED.

                                                Petitioner Mary Ann Potts’ request for attorney’s fees is GRANTED in the amount of $2,000.

BACKGROUND

            On June 14, 2023, Petitioner Mary Ann Potts (“Petitioner”) filed the instant Verified Petition to Release Property from Mechanic’s Lien (the “Petition”) against Respondent Scott D. Potts (“Respondent”). The Petition seeks an order releasing the property commonly known as at 49 Friars Lane, Westlake Village, CA 91361 (the “Subject Property”) from a mechanic’s lien that was recorded against it on January 30, 2023 by Respondent.  Pet. at ¶ 7, Exh. B.

On June 30, 2023, Petitioner filed a proof of service demonstrating Respondent was substitute served with the Petition and notice of hearing on June 29, 2023 at 15725 Eunice Ave., Simi Valley, CA 93063 (the “Eunice Address”).  See June 30, 2023 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 Eunice Address on June 30, 2023.  Id.  Per Code of Civil Procedure § 415.20, service was complete ten days after mailing.  In addition, Petitioner later mailed the necessary documents by certified mail on September 21, 2023.  See September 29, 2023, Proof of Service.

No response has been provided by the Respondent.

MOVING PARTY POSITION

            Petitioner moves for an order releasing the Subject Property from the mechanic’s lien recorded by Respondent pursuant to Civil Code § 8480 because Respondent failed to file a suit to foreclose on the mechanic’s lien within 90 days of recording as required under Civil Code § 8460(a).

OPPOSITION

            None filed as of October 13, 2023.

REPLY

            None filed as of October 13, 2023.

ANALYSIS

I.          Petition to Release 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(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(b).

A.        Service Requirement

“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(a).

As discussed above, Respondent was served by substitute service on June 29, 2023 at the Eunice Address.  The Eunice Address is the same address that Respondent listed on the Claim of Mechanic’s Lien filed with the County Recorder’s Office.  See Pet., Exh. B at pg. 2.  Thus, the Court finds Petitioner has complied with the service requirement.

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.

The instant Petition is verified and is accompanied by a certified copy of the Claim of Mechanic’s Lien, Document No. 20230060556, filed with the Los Angeles County Recorder’s Office on January 30, 2023.  Pet., Verification, Exh. B. The Petition 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 Petitioner has not filed for bankruptcy, and that no other restraint exists preventing Respondent from filing an action to enforce the lien.  Id. at ¶¶ 10, 13.

Petitioner also includes a copy of the May 2, 2023, letter that was mailed to Respondent at the Eunice Address demanding that the mechanic’s lien be released.  Id. at ¶ 12, Exh. C.  Respondent failed to respond.  Ibid.  Furthermore, the Petition includes a legal description of the Subject Property.  Id. at pg. 2.

Because Petitioner has complied with the notice requirement and the Petition complies with Civil Code § 8484, the Court grants the instant Petition.

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’s fees.  

Here, Petitioner has successfully prevailed in releasing the property from the recorded mechanic’s lien. In connection with the instant Petition, Petitioner seeks $2,000 in attorney’s fees.  See Pet., ¶ 14.  Under the circumstances, this amount is reasonable.

Accordingly, Petitioner’s request for attorney’s fees in the amount of $2,000.00 is GRANTED.

II.        Conclusion

            Based on the foregoing,

Petitioner’s Verified Petition to Release Property From Mechanic’s Lien GRANTED.

Petitioner’s request for attorney’s fees in the amount of $2,000 is GRANTED.

Counsel for Petitioner is directed to submit a proposed form of order consistent with this court's ruling within 10-days.



Counsel for Petitioner is ordered to give notice to any Party legally entitled.