Judge: Melvin D. Sandvig, Case: 22CHCV00327, Date: 2022-10-26 Tentative Ruling
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Case Number: 22CHCV00327 Hearing Date: October 26, 2022 Dept: F47
Dept. F47
Date: 10/26/22
Case #22CHCV00327
MOTION TO EXPUNGE
MECHANIC’S LIEN
Motion filed on 6/23/22.
MOVING PARTY: Cross-Defendant Braa Holdings,
LLC
RESPONDING PARTY: Cross-Complainant William Vilches dba Prestige Builders
NOTICE: ok
RULING: The motion is denied. Cross-Complainant’s request for sanctions is
also denied.
This action arises out of an agreement allegedly entered
between Cross-Complainant William Vilches dba Prestige Builders
(Cross-Complainant) and Cross-Defendants Braa Holdings, LLC, Areg Aghayants and
Armik Aghayants (Cross-Defendants) whereby Cross-Complainant was to construct a
pool for Cross-Defendants. Both
Cross-Complainant and Cross-Defendants claim that the other breached the
agreement. As a result, on 5/12/22,
Cross-Defendant Braa Holdings, LLC, as plaintiff, filed the underlying
complaint against Cross-Complainant as defendant for: (1) Negligent
Misrepresentation, (2) Fraudulent Concealment, (3) Breach of Contract, (4)
Unfair Business Practices in Violation of Business & Professions Code
17200, et seq., (5) Breach of the Implied Covenant of Good Faith and Fair
Dealing and (6) Intentional Infliction of Emotional Distress. On 5/26/22, Defendant/Cross-Complainant filed
his original Cross-Complaint, and, on 5/27/22, he filed his original
Answer. On 5/31/22,
Defendant/Cross-Complainant filed an Amended Answer and, on 6/3/22, he filed a
First Amended Cross-Complaint alleging causes of action for: (1) Breach of
Written Contract, (2) Quantum Meruit, (3) Foreclosure of Mechanic’s Lien, (4) Breach
of Civil Code 1719, (5) Fraud, (6) Negligent Misrepresentation and (7) Open
Book Account.
On 6/23/22, “Cross-Defendant” filed and served the
instant motion seeking an order expunging the mechanic’s lien placed on
Cross-Defendant’s property.
Additionally, Cross-Defendant requests sanctions in the amount of
$3,200.00 against Cross-Complainants and their attorney. Cross-Complainant William Vilches dba
Prestige Builders has opposed the motion.
The Court notes that the motion fails to clearly identify
the moving party. The motion indicates
that “Cross-Defendant will and hereby does move…” without identifying which of
the three cross-defendants is actually making the motion. (See Motion, p.1:5, p.2:3-4, p.2:8). Presumably, the moving party is
Cross-Defendant Braa Holdings, LLC which is the owner of the property. Additionally, the motion cites to statutes
that have been repealed and/or do not exist.
(See Motion, p.2:17 citing to Civil Code 3118 which was repealed
as of 7/1/12; p.7:1-2 citing CCP 3123(a) which does not exist. Presumably, Cross-Defendant meant to cite
Civil Code 3123(a). However, that
statute was also repealed as of 7/1/12).
Further, the motion is not supported by any evidence (i.e., no
declaration or other evidence has been submitted in support of the
motion).
The Court also notes that Cross-Complainant failed to
bookmark the declarations and exhibits attached to the opposition. (See 5/3/19, First Amended General
Order Re Mandatory Electronic Filing for Civil, “Technical Requirements”); CRC
3.1110(f)(4).
A mechanic's lien gives a contractor, supplier, or
laborer a security interest in real property to secure the right to payment for
work performed or materials delivered. Crosno
Construction, Inc. (2020) 47 CA5th 940, 950. A motion may be made to remove a mechanic’s
lien. See Howard S. Wright
Construction Co. (2003) 106 CA4th 314, 317.
The inquiry on such a motion is the probable validity of the lien. Id. at 318; Lambert (1991) 228
CA3d 383, 387.
Cross-Complainant has established the probable validity
of the mechanic’s lien. See Cal
Sierra Construction, Inc. (2012) 206 CA4th 841, 859 citing Lambert, supra
at 388; Civil Code 8400, et seq. As set
forth below, Cross-Complainant has shown that: (1) the procedures of Civil Code
8400, et seq. were met; (2) Cross-Complainant provided labor and materials in
connection with improvement of the Property; (3) Cross-Complainant provided
labor and materials at the direction of the owner of the Property; and (4) Cross-Defendants’
withheld checks for payments related to the improvements of the Property.
As a licensed general contractor on a private pool
construction project, Cross-Complainant had a right to record a mechanic's lien
for the services and labor he provided. See
Civil Code 8400; (Vilches Decl. ¶1; Complaint, Ex.C). Cross-Complainant was hired directly by, Braa
Investments, LLC, the owner of the property located at 9900 Laurel Canyon Blvd,
Pacoima, CA 91331, APN 2622-008-025, 23 (the "Property"). (Vilches Decl. ¶3; Complaint ¶¶8-9).
Cross-Defendants admit they hired Cross-Complainant to
provide services related to the construction of a pool on the Property. (See Motion, p.2:18-20; Complaint ¶¶8-9). Cross-Complainant built a pool and
substantially completed it by 2/9/22, when he received the final permit
approval from the city. (Vilches Decl. ¶8). On 3/9/22, Cross-Complainant recorded the
Mechanic' Lien within 90 days of completing his work on the project after
Cross-Defendants’ failed to pay for the services he provided related to the
pool project. (Vilches Decl. ¶9). A copy of the recorded Mechanic’s Lien was
served on the owner, Braa Investments, LLC.
Civil Code 8416; (Vilches Decl. ¶9 and Ex.C thereto).
Cross-Defendants claim that they had a good faith dispute
over the price of the construction of the pool and allegedly as a result, they
withheld payment to Cross-Complainant. (See
Motion, p.3:1). Such an admission substantiates
the fact that there is an outstanding amount in dispute stemming from a refusal
to pay for work related to the construction of the pool which justifies the
Mechanic’s Lien. As a result, on
5/26/22, Cross-Complainant filed the cross-complaint to foreclose on the
mechanic’s lien within 90 days of recording it.
See Civil Code 8460(a); (Vilches Decl. ¶11).
Contrary to the assertion in the motion, Cross-Complainant
was not required to send a preliminary notice to the project owner. When a contractor deals directly with the
reputed owners of a property, the contractor is not required to provide a
preliminary notice to owner. Civil Code Section 8200(e)(2) provides:
“A claimant with a direct
contractual relationship with an owner or reputed owner is required to give
preliminary notice only to the construction lender or reputed construction
lender, if any.”
Here, Cross-Complainant entered
into an agreement directly with the reputed owners of the Property. (See First Amended Cross-Complaint ¶¶10,
22; Complaint ¶¶8-9). The project was
not financed by a construction lender.
(Vilches Decl. ¶11).
Cross-Defendant’s claim that
the mechanic’s lien seeks excessive amounts does not invalidate the lien,
unless Cross-Defendant can show fraud on the part of Cross-Complainant. See Schallert-Ganahl Lumber Co.
(1891) 91 Cal 362, 366; Distefano (1963) 218 CA2d 657; Civil Code
8422(a)-(c). Here, Cross-Defendant has
not provided any evidence of an intent to defraud on the part of
Cross-Complainant or any other grounds to invalidate the lien under Civil Code
8422.
None of the other unsupported
facts set forth in the motion provide a basis to invalidate or expunge the
mechanic’s lien.
Both Cross-Defendant and
Cross-Complainant claim that they are entitled to recover reasonable attorneys’
fees and costs if they prevail on the motion.
However, the only authority cited by either party is CCP 405.38 which
allows for the recovery of “reasonable attorney’s fees and costs of making or
opposing the motion [to expunge a notice of pendency of action] unless the
court finds that the other party acted with substantial justification or that
other circumstances make the imposition of attorney’s fees and costs unjust.”
CCP 405.38 specifically
provides that it applies to “the party prevailing on any motion under this
chapter.” Neither party has provided any
authority which provides that the statute has been expanded to the prevailing
party on a motion to expunge a mechanic’s lien rather than a lis pendens/notice
of pendency of action.
Even if CCP 405.38 could be
deemed to apply to the instant motion, it still allows the Court to deny the
request when it finds that “circumstances make the imposition of attorney’s
fees and costs unjust.” Here, Cross-Complainant,
the prevailing party on this motion, requests $10,530.00 for attorney’s fees
and costs. However, the attorney
declaration submitted with the opposition does not support the fees
requested.
Attorney Lavaee contends that
he “spent 6.2 hours researching and preparing these moving papers and evidence”
and “expect[s] to spend another 7 hours reviewing the opposition papers,
reviewing case law cited in Plaintiffs' opposition, and preparing a reply
brief.” (See Lavaee Decl.
¶5). Attorney Lavaee represents the
opposing party on this motion; therefore, he did not prepare any moving papers,
will not need to review an opposition or prepare a reply. Since Cross-Complainant has not submitted any
evidence regarding the attorney’s fees and costs actually incurred in opposing
the motion, the Court finds that awarding such fees and costs would be unjust
und the circumstances if there was statutory support for the request.