Judge: Richard S. Whitney, Case: 37-2023-00037001-CU-OR-CTL, Date: 2023-09-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 20, 2023

09/21/2023  02:00:00 PM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Other Real Property Hearing on Petition 37-2023-00037001-CU-OR-CTL 2238 E 6TH ST LLC VS TODOROVIC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: Petitioner's UNOPPOSED Petition to Release Property from Mechanic's Lien is DENIED.

Respondent NEMANJA TODOROVIC's ('Respondent') has not filed any response to Petitioner 2238 E 6TH ST, LLC's ('Petitioner') petition. On October 18, 2022, Respondent, recorded a claim of mechanic's lien against Petitioner's property. 'The claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien. If the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.' (Civ. Code, § 8460(a).) Petitioner's verified petition states Respondent never brought an action and that no extension of credit has been recorded nor requested which would make Civil Code section 8460(b) inapplicable. This petition was properly brought pursuant to Civil Code section 8480. 'The prevailing party is entitled to reasonable attorney's fees.' (Civ. Code, § 8488(c).) 'The petitioner shall serve a copy of the petition and a notice of hearing on the claimant at least 15 days before the hearing. Service shall be made in the same manner as service of summons, or by certified or registered mail, postage prepaid, return receipt requested, addressed to the claimant as provided in Section 8108.' (Civ. Code, § 8486(b).) At the hearing both (1) the petition and (2) the issue of compliance with the service and date for hearing requirements of this article are deemed controverted by the claimant. The petitioner has the initial burden of producing evidence on those matters. The petitioner has the burden of proof as to the issue of compliance with the service and date for hearing requirements of this article. The claimant has the burden of proof as to the validity of the lien.

Civ. Code, § 8488(a).) Petitioner filed a proof of service that indicates Respondent was served with notice of the hearing date on August 30, 2023, more than 15 days before the hearing, as required under Civil Code section 8486.

(ROA # 8.) However, the Court did not send out notice of the hearing date, which is unilaterally set by the Court, until August 31, 2023. (See ROA # 7.) The Court fails to see how it is possible that Petitioner could have served notice of the hearing a day before the Court sent out notice of the hearing date. Court staff does not have independent recollection nor proof that Petitioner was advised of the hearing date prior to August 31, 2023. While it is undisputed that Respondent did not file an action within 90 days after recordation of the claim of lien and that no extension has been permitted, Petitioner has not met its burden under Civil Code section 8488 as to proof of service. The petition is denied.

Calendar No.: Event ID:  TENTATIVE RULINGS

3014863  66 CASE NUMBER: CASE TITLE:  2238 E 6TH ST LLC VS TODOROVIC [IMAGED]  37-2023-00037001-CU-OR-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

3014863  66