Judge Richard S. Whitney, Case Number: 37-2024-00022248-CL-PT-CTL, Date: 2024-06-03 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2024-00022248-CL-PT-CTL, Date: 2024-06-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 30, 2024

06/03/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Limited Petitions - Other Motion Hearing (Civil) 37-2024-00022248-CL-PT-CTL ALEXANDER SEGAL AS TRUSTEE OF THE ALEXANDER SEGAL AND DINA B SEGAL 2017 REVOCABLE TRUST INITIALLY CREATED MAY 5 2017 VS COLE CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PETITIONER'S UNOPPOSED PETITION FOR RELEASE OF PROPERTY FROM LIEN is DENIED but will be granted if Petitioners provide proof that proper notice of this hearing was properly served on Respondent.

Failure to file an opposition to the petition indicates Respondent Gary Cole dba San Diego Renovations' ('Respondent') acquiescence that the petition is meritorious. (L.R. 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious']; See California Rules of Court, Rule 8.54(c).) Petitioners Alexander Segal and Dina B. Segal, as Trustees of The Alexander Segal and Dina B. Segal 2017 Revocable Trust initially created May 5, 2017 ('Petitioners') did not submit a memorandum of points and authorities as to this petition, as is required under California Rules of Court, Rules 3.1113 and 3.1114. 'The court may construe the absence of a memorandum as an admission that the motion ... is not meritorious and cause for its denial ....' (CA ST CIVIL RULES Rule 3.1113(a).) However, the Court will consider the merits of the petition.

Civil Code section 8460 (a) provides '[t]he 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).) The verified petition states Respondent recorded a lien on November 7, 2023, and that Respondent has not commenced an action to enforce the lien. On March 15, 2024, and April 25, 2024, Petitioners made demands to Respondent to remove the lien. Respondent did not respond. 'An owner of property may not petition the court for a release order under this article unless at least 10 days before filing the petition the owner gives the claimant notice demanding that the claimant execute and record a release of the claim of lien.' (Civ. Code, � 8482.) Petitioner complied with this requirement as the petition was not filed until May 9, 2024.

Notwithstanding the above, '[a]t 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.' (Civ. Code, � 8488(a).) 'The notice shall comply with the requirements of Chapter 2 (commencing with Section 8100) of Title 1, and shall state the grounds for the demand.' (Civ. Code, � 8482.) Notice under this part shall, in addition to any other information required by statute for that type of notice, include all of the following information to the extent known to the person giving the notice: (1) The name and address of the owner or reputed owner.

Calendar No.: Event ID: TENTATIVE RULINGS

3131834 CASE NUMBER: CASE TITLE: ALEXANDER SEGAL AS TRUSTEE OF THE ALEXANDER SEGAL AND 37-2024-00022248-CL-PT-CTL (2) The name and address of the direct contractor.

(3) The name and address of the construction lender, if any.

(4) A description of the site sufficient for identification, including the street address of the site, if any. If a sufficient legal description of the site is given, the effectiveness of the notice is not affected by the fact that the street address is erroneous or is omitted.

(5) The name, address, and relationship to the parties of the person giving the notice.

...

(Civ. Code, � 8102(a).) 'Notice is not invalid by reason of any variance from the requirements of this section if the notice is sufficient to substantially inform the person given notice of the information required by this section and other information required in the notice.' (Civ. Code, � 8102(b).) '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).) 'Except as otherwise provided by this part, notice under this part shall be given to the person to be notified at the person's residence, the person's place of business....' (Civ. Code, � 8108.) This Court set the hearing, and informed Petitioners of same, on May 15, 2024. Petitioners filed one proof of service that states service was completed on May 16, 2024, which indicates 'Notice of Hearing on Petition for Release of Mechanics Lien, Proof of Service, Notice of Case Assignment, Petition for Release of Mechanics Lien, Proposed Order, Notice of Hearing' were personally served. Personal service is an appropriate means of service. (Civ. Code, � 8106.) The proof of service and Petition demonstrate service was properly made at the address Respondent used in the claim of mechanic's lien and invoice attached to the Petition. The proof of service also demonstrates service was properly completed 'at least 15 days before the hearing.' However, Petitioners did not file a 'Notice of Hearing,' but they did file 'Notice of Hearing on Petition for Release of Mechanics Lien.' The 'Notice of Hearing on Petition for Release of Mechanics Lien' was served prior to this Court assigning a hearing date. Therefore, the 'Notice of Hearing on Petition for Release of Mechanics Lien' does not provide notice of this hearing date. The Court presumes the proper hearing date was included with the 'Notice of Hearing' served, but without a filing of the 'Notice of Hearing' the Court cannot conclude Petitioner complied with Civil Code section 8486(b). Petitioners have not met their burden under Civil Code section 8488(a). The petition is denied.

'The prevailing party is entitled to reasonable attorney's fees.' (Civ. Code, � 8488(c).) If Petitioner provides proper proof of service, the Court will grant the unopposed petition and grant Petitioners' request for $589.90 in costs and $900 for reasonable attorney's fees.

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3131834