Judge: Mark E. Windham, Case: 23STCP03756, Date: 2024-02-14 Tentative Ruling
Case Number: 23STCP03756 Hearing Date: February 14, 2024 Dept: 26
Fang v. RC Windows and Door, et al.
PETITION
TO RELEASE MECHANIC’S LIEN
(Civil
Code § 8480)
TENTATIVE RULING:
Petitioner Qiang Fang’s Petition to Release Property from
Mechanic’s Lien is CONTINUED TO MAY 15, 2024 AT 10:00 AM IN DEPARTMENT 26 IN
THE SPRING STREET COURTHOUSE. BY APRIL 24, 2024, PETITIONER IS TO FILE AN
AMENDED PETITION CORRECTING THE DEFECTS NOTED HEREIN, AND PROOF OF SERVICE OF
THE AMENDED PETITION AND NOTICE OF HEARING DATE.
ANALYSIS:
Petitioner Qiang Fang (“Petitioner”), filed the instant
Petition for Release of Mechanic’s Lien against Respondent RC Windows and Door (“Respondent”)
on October 11, 2023. No response to the Petition has been filed to date.
Discussion
Petitioner moves to have the mechanic’s lien recorded
against their property by Respondent released. The Petition does not cite the
relevant moving statute to release the lien. Under Civil Code section 8484 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.) Although the Petition contains most of
the required information, it is not verified and does not attach a certified
copy of the lien. It only attaches a copy of the face page of the recording
document. (Pet., p. 8.) Additionally, 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, however, has not filed compliant
proof of service of the Petition and the Notice of the Hearing Date. The proof
of service filed on February 2, 2024 only indicates service of the Notice of
Hearing and Notice of Assignment. (Proof of Service, 02/04/24, p. 3.)
Furthermore, service was only by priority mail. (Id. at ¶6.) The Court
cannot grant the Petition with compliance with these statutory requirements.
Conclusion
Petitioner Qiang Fang’s Petition
to Release Property from Mechanic’s Lien is CONTINUED TO MAY 15, 2024 AT 10:00
AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY APRIL 24, 2024,
PETITIONER IS TO FILE AN AMENDED PETITION CORRECTING THE DEFECTS NOTED HEREIN, AND
PROOF OF SERVICE OF THE AMENDED PETITION AND NOTICE OF HEARING DATE.
Court clerk to give notice.