Judge: Mark E. Windham, Case: 22STCP00032, Date: 2022-07-25 Tentative Ruling

Case Number: 22STCP00032    Hearing Date: July 25, 2022    Dept: 26

PETITION TO RELEASE MECHANIC’S LIEN

(Civil Code § 8480)

TENTATIVE RULING:

Petitioner Carolyn Smith’s Amended Petition to Release Property from Mechanic’s Lien is GRANTED. PETITIONER TO FILE PROPOSED ORDER WITHIN 20 DAYS OF THIS RULING.

ANALYSIS:

Petitioner Carolyn Smith (“Petitioner”) filed the instant Petition for Release of Mechanic’s Lien against Respondent Island Construction (“Respondent”) on January 5, 2022. The Court set the Petition for hearing on May 11, 2022 and then continued the hearing to May 19, 2022.

On May 10, 2022, Petitioner filed an Amended Petition, which came for hearing on May 19, 2022. The Court continued the matter to allow Petitioner to demonstrate proper service of the Amended Petition and Notice of Hearing. (Minute Order, 05/19/22.) Petitioner filed a Proof of Service by Substituted Service on June 9, 2022. No response to the Petition or Amended Petition has been filed to date.

Discussion

Petitioner moves to have mechanic’s liens recorded against its property by Respondent released. The Petition is brought pursuant to Civil Code section 8480, which provides that the owner of property 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. (Civil Code, § 8480, subd. (a).) 

Section 8460 provides that “[t]he claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien.” (Civil 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.” (Civil 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.  (Civil Code, § 8460, subd. (b).) 

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. (Civil Code, § 8482.) 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.

(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.

(Civil Code, § 8484.)

Petitioner has now filed proof of service of the Amended Petition and Notice of Hearing. Civil Code section 8486, subdivision (b) requires service to “be made in the same manner as service of summons, or by certified or registered mail, postage prepaid, return receipt requested . . . .” (Civ. Code, § 8486, subd. (b).) The documents were served on Respondent by substitute service as required under Code of Civil Procedure section 415.20.

Regarding the merits, the Court previously found Petitioner has satisfied the requirements of Civil Code section 8484. (Minute Order, 05/19/22.) Furthermore, there is no indication that an action to enforce the lien has been commenced and the 90-day time period to commence an action has expired. According, the Petition may now be granted.

Conclusion

Petitioner Carolyn Smith’s Amended Petition to Release Property from Mechanic’s Lien is GRANTED. PETITIONER TO FILE PROPOSED ORDER WITHIN 20 DAYS OF THIS RULING.

Moving party to give notice.