Judge Mark E. Windham, Case Number: 23STCP02874, Date: 2023-12-13 Tentative Ruling

Judge: Mark E. Windham, Case: 23STCP02874, Date: 2023-12-13 Tentative Ruling

Case Number: 23STCP02874 Hearing Date: February 14, 2024 Dept: 26

1258 W. 37th Dr., LLC v. Robertson’s Ready Mix, Ltd, et al.

PETITION TO RELEASE MECHANIC’S LIEN

(Civil Code § 8480)

TENTATIVE RULING:

THE COURT, HAVING PREVIOUSLY DENIED PETITIONER 1258 W. 37TH DR., LLC’S PETITION TO RELEASE PROPERTY FROM MECHANIC’S LIEN, AWARDS ATTORNEY’S FEES OF $1,925.00 TO RESPONDENT ROBERTSON’S READY MIX, LTD.

ANALYSIS:

Petitioner 1258 W. 37th Dr., LLC (“Petitioner”), filed a Petition for Release of Mechanic’s Lien against Respondents Robertson’s Ready Mix, Ltd. And Tiffany Lambo (“Respondents”) on August 9, 2023. Respondent filed an opposition on November 29, 2023 and Petitioner replied on November 30, 2023. Respondent filed evidentiary objections on December 4, 2023.

At the hearing on December 13, 2023, the Court heard oral argument from both parties and took the matter under submission. (Minute Order, 12/13/23.) On December 27, 2023, the Court issued its ruling denying the Petition and continuing the hearing to allow Respondent to submit further briefing regarding attorney’s fees. (Minute Order, 12/27/23.) Respondent filed supplemental papers on January 22, 2024 and Petitioner filed a supplemental opposition on January 30, 2024. Respondent filed a supplemental reply on February 7, 2024.

Discussion

Petitioner moves to have the mechanic’s lien recorded against their property by Respondent released. As Respondent points out, the Petition is brought pursuant to now-repealed statutory provisions, Civil Code sections 3154, et seq. The correct statutes begin at 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).)

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).) Petitioner filed proof of service of the Petition and the Notice of the Hearing Date by certified mail with return receipt requested. (Declaration in Support of Petition, filed 11/28/23.) This conforms to the statutory requirements for service.

However, Respondent argues that Petitioner has not complied with the service requirements for the pre-filing notice, as set forth in Civil Code section 8100, et seq. The Petition includes a copy of the pre-filing notice but has no proof of service attached. (Pet., Lee Decl., ¶6 and Exhs. B-D.) Respondent also argues that numerous requirements of Civil Code section 8484 are not met, including failure to allege that the time for commencement of an action to enforce the lien had expired and failure to include a certified copy of the lien. In its reply, Petitioner does not dispute that these requirements of Civil Code section 8484 have been met, thereby conceding the opposition argument. Instead, Petitioner argues on reply that Respondent failed to give mandatory notice of the claim of mechanic’s lien under Civil Code section 8416, thereby rendering it invalid. (Reply, p. 2:7-27.) Neither the Petition nor reply provides any legal analysis of this argument beyond citation to the appliable statute, which sets forth the requirements for a claim of mechanic’s lien, including service on the owner or reputed owner. (Citing Civ. Code, § 8416, subd. (c).) No authority is cited regarding the effect of Respondent’s failure to provide service to the correct address, which is undisputed. Therefore, Petitioner has not demonstrated compliance with the requirements for a petition to release a mechanic’s lien under Civil Code section 8484, nor any other statutory basis to do so.

Respondent requests an award for attorney’s fees and costs pursuant to Civil Code section 8488(c), which entitles the prevailing party on a petition to release mechanic’s lien to an award of attorney’s fees. (Civ. Code, § 8488, subd. (c) [“The prevailing party is entitled to reasonable attorney’s fees.”].) Petitioner opposes the request for attorney’s fees on the grounds that had it cited the correct statutory code section, the Petition would have been meritorious and that relief is available under Code of Civil Procedure section 473, subdivision (b). This fails to account for the other arguments Respondent made in opposition to the Petition, as cited in the Court order dated December 14, 2023. The Petition was denied on more grounds that it failed to cite the correct code section. Respondent’s request for attorney’s fees, therefore, is granted.

Respondent provides evidence that it incurred attorney’s fees of $3,855.15 based on eight hours of attorney time billed at $425.00 per hour. (Supp. Plumtree Decl., ¶¶3-5.) 4.5 of those hours were billed with respect to the initial opposition and hearing. (Id. at ¶3.) The supporting declaration does not provide a basis for the requested hourly rate of $425.00. For a limited jurisdiction action involving a mechanic’s lien, the Court finds that a reasonable hourly rate is $350.00. The number of hours spent on the initial opposition were also reasonable. However, the time spent on the supplemental opposition and additional hearing—3.5 hours—are excessive. The supplemental brief is only three pages long with a minimal declaration and an additional hearing would not have been necessary had Respondent properly supported its request for fees. Attorney’s fees are awarded in the amount of $1,925.00 based on 5.5 hours of attorney time billed at $350.00 per hour.

Conclusion

Court clerk to give notice.