Judge: Robert B. Broadbelt, Case: 22STCV33472, Date: 2023-01-04 Tentative Ruling

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Case Number: 22STCV33472    Hearing Date: January 4, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Plaintiffs Mac Calva and Tatyana Nosenko

RESPONDING PARTY:       Unopposed

Petition for Order Releasing Property from Claim of Mechanic’s Lien

The court considered the moving papers filed in connection with this petition.  No opposition papers were filed.  

DISCUSSION

Plaintiffs Mac Calva and Tatyana Nosenko (“Plaintiffs”) filed this action on October 12, 2022, against defendants Restore a Floor and Suretec Insurance Co.

On October 31, 2022, Plaintiffs filed a Petition for Order Releasing Property from Claim of Mechanics Lien, requesting that the court (1) declare that the mechanic’s lien recorded by defendant Restore a Floor (“Defendant”) against Plaintiffs’ property has expired and is unenforceable; (2) order that the property is released from Defendant’s lien; and (3) award Plaintiffs reasonable attorney’s fees in the amount of $7,151.37.

“‘A mechanic’s lien is a claim against real property, which may be filed if a claimant has provided labor or furnished materials for the property and has not been paid.  [Citation.]’”  (Precision Framing Systems, Inc. v. Luzuriaga (2019) 39 Cal.App.5th 457, 464.)  “The right to a mechanic’s lien depends upon a compliance with the statute, and in order that a valid lien may arise and be enforced, the claimant must strictly, or at least substantially, observe and comply with the provisions of the statute, none of which may be regarded as unessential.”  (Id. at pp. 464-465 [internal quotations omitted].)

A “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, subd. (a).)  If the claimant has not commenced an action to enforce the lien within 90 days, the property owner “may petition the court for an order to release the property from the claim of lien….”  (Civ. Code, § 8480, subd. (a).)  A petition for release must be verified and allege the matters specified by statute.  (Civ. Code, § 8484.)

Plaintiffs move the court for an order releasing the subject property from Defendant’s lien on the grounds that (1) Defendant has not commenced an action to enforce the lien within 90 days after recordation of the May 4, 2022 lien, and (2) Defendant’s lien was recorded in the name of “Restore A Floor, LLC,” but the entity “Restore A Floor” is identified as a corporation in the records of the Contractors State License Board and California Secretary of State.  (Julander Decl., ¶ 3; Julander Decl., Ex. A [May 4, 2022 Lien]. Ex. C [Department of Consumer Affairs Contractors State License Board license detail for Restore A Floor].) 

The court finds that Plaintiffs have not met their burden to establish that they (1) complied with the date for hearing requirements, or (2) properly served Defendant with the petition and notice of hearing.

“On the filing of a petition for a release order, the clerk shall set a hearing date.  The date shall not be more than 30 days after the filing of the petition.”  (Civ. Code, § 8486, subd. (a).)  While the court may continue the hearing on a showing of good cause, “the court shall rule and make any necessary orders on the petition not later than 60 days after the filing of the petition.”  (Ibid.)  A petitioner “shall serve a copy of the petition [for a release order] 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, subd. (b).)  Plaintiffs, as petitioners, have “the burden of proof as to the issue of compliance with the service and date for hearing requirements of this article.”  (Civ. Code, § 8488, subd. (a).)          

First, the court finds that Plaintiffs have not met their burden of establishing that they complied with the date for hearing requirements.  Plaintiffs filed the petition on October 31, 2022, with the hearing date of January 3, 2023, i.e., more than 30 days after the filing of their petition.  Moreover, the date for hearing on this petition—January 4, 2023—is 65 days from the date of Plaintiffs’ filing of the petition, and therefore also exceeds the 60-day time period in which the court must rule on a petition.[1]  (Civ. Code, § 8486, subd. (a) [“the court shall rule and make any necessary orders on the petition not later than 60 days after filing of the petition”].) 

Second, the court finds that Plaintiffs have not met their burden of establishing that they properly served the petition and notice of hearing on Defendant.  On December 6, 2022, Plaintiffs filed a “Proof of Service by First-Class Mail—Civil” (on form POS-030), stating that Defendant was served with the petition, supporting papers, and notice of hearing on November 28, 2022, by first class-mail after “placing the envelope for collection and mailing following our ordinary business practices.”  (Dec. 6, 2022 POS-030, ¶ 4, subd. (b).)  Plaintiffs have not filed a Proof of Service establishing that Defendant was served, at least 15 days before the hearing on Plaintiffs’ petition, “in the same manner as service of summons, or by certified or registered mail, postage prepaid, return receipt requested….”  (Civ. Code, § 8486, subd. (b).)  The court therefore finds that Plaintiffs have not presented evidence to the court establishing that Defendant was served with the petition and notice of hearing in the manner required by Civil Code section 8486.

The court therefore denies Plaintiffs’ requests that the court (1) declare that Defendant’s mechanic’s lien has expired and is unenforceable, and (2) order that the property is released from Defendant’s mechanic’s lien.

The court denies Plaintiffs’ request for attorney’s fees in the amount of $7,151.37, because they are not the prevailing parties on this petition.  (Civ. Code, § 8488, subd. (c).)

ORDER

            The court denies plaintiffs Mac Calva and Tatyana Nosenko’s Petition for Order Releasing Property from Claim of Mechanics Lien without prejudice.

The court orders plaintiffs Mac Calva and Tatyana Nosenko to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 4, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court