Judge Mark E. Windham, Case Number: 23STCP01240, Date: 2023-08-30 Tentative Ruling

Judge: Mark E. Windham, Case: 23STCP01240, Date: 2023-08-30 Tentative Ruling

Case Number: 23STCP01240 Hearing Date: August 30, 2023 Dept: 26

McGahey v. Kart it Construction Consultants, et al.

PETITION TO RELEASE MECHANIC’S LIEN

(Civil Code § 8480)

TENTATIVE RULING:

Petitioners Barbara McGahey and Mark McGahey’s Petition to Release Property from Mechanic’s Lien is GRANTED. PETITIONERS ARE AWARDED COSTS OF $407.75 AND MAY MOVE FOR ATTORNEY’S FEES PURSUANT TO A NOTICED MOTION.

ANALYSIS:

Petitioners Barbara McGahey and Mark McGahey (“Petitioners”) filed the instant Petition for Release of Mechanic’s Lien against Respondent Kart It Construction Consultants (“Respondent”) on April 18, 2023. No response to the Petition has been filed to date.

Discussion

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.

(b) The county in which 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.)

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).) Petitioners filed proof of service of the Petition and the Notice of the Hearing Date by certified mail with return receipt requested. (Proof of Service by Mail, filed 05/01/23.) This conforms to the statutory requirements for service.

Regarding the merits, Petitioners have satisfied the requirements of Civil Code section 8484. (Pet., ¶¶1-7 and Exhs. A-B.) 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. (Ibid.)

Petitioner also requests attorney’s fees and costs pursuant to Civil Code section 8488, subdivision (c). Only costs are supported by evidence in the Petition and are awarded in the amount of $407.75. (Pet., ¶10.) As there is no request for a specific amount of attorney’s fees nor evidence regarding the same, Petitioners may separately file a noticed motion for attorney’s fees pursuant to Code of Civil Procedure section 3.1702.

Conclusion

Moving party to give notice.