Judge: Latrice A. G. Byrdsong, Case: 23STCP04581, Date: 2024-04-24 Tentative Ruling

Case Number: 23STCP04581    Hearing Date: April 24, 2024    Dept: 25

Hearing Date:                          Wednesday, April 24, 2024 

Case Name:                             Joseph Lo Bue, et al. v. David Aragon

Case No.:                                23STCP04581 

Motion:                                   Petition for Expungement of Mechanic’s Lien

Moving Party:                         Petitioners Joseph Lo Bue and Anthony Marciona   

Responding Party:                   None

Notice:                                     Not OK? Order for Publication rejected 04/11/2024

Tentative Ruling:                    Petition to Expunge Mechanic’s Lien filed by Petitioners Joseph Lo Bue and Anthony Marciona is DENIED.

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BACKGROUND 

On May 15, 2023, Respondent David Aragon dba Progressive Home Remodeling, Inc. recorded a Mechanic’s Lien against Petitioners Joseph Lo Bue and Anthony Marciona’s real property located at 3359 Larga Ave, Los Angeles for work performed on Petitioners’ roof.

On December 20, 2023, Petitioners filed the instant Petition for Expungement of Mechanic’s Lien on the basis that Respondent failed to show proper service to the owner and to show that the Mechanic’s Lien was property addressed to the owners’ residence. Further, Respondent failed to comply with the requirement of commencing an action to enforce the Mechanic’s Lien within 90 days of recordation.

Petitioners’ Order for Publication was rejected on April 11, 2024.

No opposition or reply papers have been filed.

ANALYSIS 

I.          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).)¿ 

At least 10 days prior to filing the petition to release the lien, the moving party must demand in writing that the claimant execute and record a release of the lien and set forth the grounds for that demand.  (Civ. Code, § 8482 (see also § 8100).)  The petition must be verified, attach a certified copy of the lien, and allege, among other things, details regarding the subject property, and the lien’s recording as specified in Civil Code § 8484.  The petition and notice of hearing must be served at least 15 days before the hearing and in the same manner as service of summons (or by certified or registered mail, postage prepaid, return receipt requested).  (Civ. Code., § 8486.)  The petitioner has the initial burden of proof to show compliance with the service and hearing date requirements, and the claimant has the burden of proof as to the validity of the lien.  (Civ. Code, § 8488.)  If the petitioner prevails, the court shall order the property released from the lien.  (Id.)  The prevailing party is entitled to recover reasonable attorney fees.  (Id.) 

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II.        Discussion

Here, Petitioners have not met their initial burden of proof to show compliance with the service and hearing date requirements.

The Petition provides that, on October 25, 2023, Petitioners sent Respondent a demand letter by certified mail, pursuant to Civil Code § 8482, demanding that Respondent remove the Mechanic’s Lien, but Respondent did not respond.  (Pet. ¶ 12.)  Petitioners then filed their Petition on December 20, 2023.  As such, it appears that Petitioners have complied with the requirements of demanding a release of the Mechanic’s Lien at least 10 days prior to filing their Petition.  However, no demand letter is provided by Petitioners even though the Petition states it is attached as Exhibit C.  In fact, no exhibit is attached to the Petition.  Consequently, Petitioners have failed to attach a certified copy of the claim of lien pursuant to Civil Code § 8484, which Petitioner states is attached as Exhibit B.  Moreover, it does not appear that the petition and notice of hearing were served at least 15 days before the April 24, 2024, hearing and in the same manner as service of summons pursuant to Civil Code § 8486.  Finally, the Petition is not verified.

II.        Conclusion 

Accordingly, the Petition to Expunge Mechanic’s Lien filed by Petitioners Joseph Lo Bue and Anthony Marciona is DENIED.

Moving party is ordered to give notice.