Judge Mark E. Windham, Case 22STCP01586 2022-09-01 Tentative Ruling

PROCEEDINGS: PETITION TO RELEASE PROPERTY FROM MECHANIC’S LIEN

MOVING PARTY: Petitioners Joseph Rouzan and Karran Rouzan

RESP. PARTY: None

PETITION TO RELEASE MECHANIC’S LIEN

(Civil Code § 8480)

TENTATIVE RULING:

Petitioners Joseph Rouzan and Karran Rouzan’s Petition to Release Property from Mechanic’s Lien is CONTINUED TO NOVEMBER 3, 2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY OCTOBER 11, 2022, PETITIONERS ARE TO FILE PROOF OF SERVICE OF THE PETITION AND NOTICE OF NEW HEARING DATE IN ACCORDANCE WITH THE STATUTORY REQUIREMENTS. FAILURE TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE PETITION BEING DENIED.

RELIEF SOUGHT:

[X] Release of Mechanic’s Lien - Per CC § 8480.

[ ] Attorneys’ Fees and Costs - Per CC § 8488(c).

[ ] Other:

SERVICE:

[ ] Proof of Service Timely Filed (CRC 3.1300) NO

[ ] Correct Address (CCP 1013, 1013a) NO

[ ] Correct Manner of Service (Civ. Code 8486(b)) NO

[ ] 15/20 Day Lapse (Civ. Code 8486(b)) NO

PETITION MUST CONTAIN:

[X] Date of lien: September 30, 2020.

[X] Legal description of property: Pet., ¶1 and Exh. 1.

[X] Attempt to have lien claimant removed and Respondent is unwilling: Petition, ¶6 and Exhs. 3-4.

[X] Owner of property has not filed for relief under any law (bankruptcy): Petition, ¶5.

[X] No action has been commenced to enforce the lien within 90 days of filing: Petition, ¶6.

SUMMARY OF PETITION: Release Petitioners’ property from the mechanic’s lien recorded on September 30, 2020. No further action was taken on said lien, including any action to foreclose on the liens, or extend them, within the time period prescribed by Civil Code section 8460. Respondent is unable or unwilling to execute a release of the liens. Respondent’s null and void claim of lien must be ordered released.

Petitioners Joseph Rouzan and Karran Rouzan (“Petitioners”), filed the instant Petition for Release of Mechanic’s Lien against Respondent Samuel L. Tolbert dba Tolbert Construction (“Respondent”) on April 28, 2022. No response to the Petition has been filed to date.

Petitioners move to have the mechanic’s lien recorded against their 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.

(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.

Petitioners have not filed any proof of service of the Petition, nor Notice of the Hearing Date, with respect with to Respondent. 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).) Regarding the merits, the Court finds Petitioners have satisfied the requirements of Civil Code section 8484. Furthermore, there is no indication that an action to enforce the liens has been commenced and the 90-day time period to commence an action has expired. Upon proper notice of the Petition and notice of hearing, the request for relief may be granted against Respondent.