Judge: Robert B. Broadbelt, Case: 22STCV33472, Date: 2023-03-06 Tentative Ruling

Case Number: 22STCV33472    Hearing Date: March 6, 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 the pending Petition for Order Releasing Property from Claim of Mechanic’s Lien on January 6, 2023, moving the court for an order (1) declaring that the claim of lien recorded by defendant Restore A Floor (“Defendant”) has expired and is unenforceable under Civil Code section 8460, subdivision (a); (2) releasing the property from Defendant’s claim of lien pursuant to Civil Code section 8488, subdivision (b); and (3) awarding Plaintiffs reasonable attorney’s fees and costs in the amount of $7,151.37 pursuant to Civil Code section 8488, subdivision (c).

“‘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 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, “[t]he owner of property or the owner of any interest in property subject to [the] claim of lien 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.)

The court grants Plaintiffs’ petition.

First, the court finds that Plaintiffs have met their burden of producing evidence to establish that they have complied with the service and date for hearing requirements.  (Civ. Code, § 8488, subd. (a).)

“On the filing of a petition for a release order, the court shall set a hearing date” that “shall not be more than 30 days after the filing of the petition.”  (Civ. Code, § 8486, subd. (a).)  The court may continue the hearing on the petition, but “only on a showing of good cause.”  (Ibid.)  “[I]n any event the court shall rule and make any necessary orders on the petition not later than 60 days after the filing of the petition.”  (Ibid.)

Plaintiffs filed their petition on January 6, 2023, with a hearing date of March 6, 2023.  The court notes that Plaintiffs did not move the court for an order advancing the hearing date on this petition.  However, the court finds good cause to hear this petition on March 6, 2023, since it is within the 60-day period in which the court must make any rulings on the petition.  (Civ. Code, § 8486, subd. (a).)  The court therefore finds that Plaintiffs have complied with the date for hearing requirements set forth by statute.

“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, subd. (b).)  “[W]hen service is made by mail, service is complete on the fifth day following deposit of the petition and notice in the mail.”  (Civ. Code, § 8486, subd. (c).)

Plaintiffs have filed three proofs of service to establish service of the petition, supporting papers, and notice of hearing on Defendant.  First, Plaintiffs filed a Proof of Service establishing that Defendant was served with the petition, notice of hearing on the petition, supporting declarations, and the application to serve Secretary of State on behalf of Defendant and the proposed order thereon by certified mail—return receipt requested on January 9, 2023.  (Proof of Service filed January 12, 2023.)  Second, Plaintiffs filed a Proof of Service establishing that Defendant was served with the proposed order on the petition by certified mail—return receipt requested on January 10, 2023.  (Proof of Service filed January 12, 2023.)  Third, Plaintiffs filed a Proof of Service establishing that Defendant was served with the petition, supporting documents, and notice of hearing on January 26, 2023, by serving the California Secretary of State.  (January 30, 2023 POS-010, ¶¶ 2-3, 5.)  The court therefore finds that Plaintiffs have complied with the service requirements.

Second, the court finds that Plaintiffs have substantially alleged all terms specified by Civil Code section 8484 in the verified the petition.  Plaintiffs have submitted a certified copy of the mechanic’s lien in support of their petition, and have stated (1) that the lien was recorded on May 4, 2022; (2) the county in which the claim of lien was recorded (i.e., the County of Los Angeles); (3) the instrument number of the lien; (4) the legal description of the property subject to the claim of lien; (5) that Plaintiffs have not granted an extension of credit to Defendant pursuant to Civil Code section 8460; (6) that Plaintiffs have given Defendant written notice pursuant to Civil Code section 8482 demanding that Defendant execute and record a release of the lien, but that Defendant did not respond and did not record a lien release; (7) that no action to enforce the claim recorded by Defendant is pending; and (8) there is no restraint that prevents Defendant from commencing an action to enforce the lien claim.  (Civ. Code, § 8484; Pet., p. 1, ¶¶ 4, 3, 5, 6-8; Pet., p. 3 [Verification by plaintiff Mac Calva); Julander Decl., Ex. A [certified copy of mechanic’s lien], Ex. D [October 7, 2022 letter to Defendant demanding that the mechanic’s lien be released]; Julander Decl., ¶¶ 6-7.)

Third, the court finds that Plaintiffs have presented evidence establishing that Defendant “has not commenced an action to enforce the lien within the time provided in Section 8460”—i.e., within 90 days after recordation of the claim of the lien.  (Civ. Code, §§ 8480, subd. (a), 8460, subd. (a).)  As set forth above, Defendant recorded the mechanic’s lien on May 4, 2022.  (Julander Decl., Ex. A.)  Defendant did not commence an action to enforce the lien by August 2, 2022, and has not filed any action to enforce the lien as of the date Plaintiffs filed this petition.  (Julander Decl., ¶ 4 [Defendant did not commence an action by August 2, 2022, and records of the Los Angeles County Superior Court “reflect no action filed by [Defendant] to enforce its lien”]; Pet., p. 1, ¶ 8 [“An action to enforce the claim of lien recorded by [Defendant] is not pending”].)

The court therefore finds that the mechanic lien recorded by Defendant Restore A Floor on May 4, 2022, has expired and is unenforceable.  (Civ. Code, § 8460, subd. (a).)

Finally, the court notes that Plaintiffs contend that the mechanic’s lien is also invalid because it was recorded in the name “Restore A Floor, LLC,” but “Restore A Floor” is a California corporation.  (Julander Decl., Ex. A [certified copy of mechanic’s lien], Ex. C [contractor’s license for corporation Restore A Floor].)  Plaintiffs contend that they are unaware of any entity that goes by that name.  (Pet., p. 5:5-10.)  While it appears that, based on the evidence, the mechanic’s lien may also be defective for this reason, Plaintiffs cite no authority that would permit the court to release the claim of lien for such a defect. 

The court therefore grants Plaintiffs’ petition on the ground that the claim of lien has expired and is unenforceable.

The court grants Plaintiffs’ request for an award of reasonable attorney’s fees.  (Civ. Code, § 8488, subd. (c) [“The prevailing party is entitled to reasonable attorney’s fees”].)  The court finds that $3,575 (5.5 hours x $650 hourly rate) is a reasonable amount of attorney’s fees to award in connection with this petition.[1]

ORDER

The court grants plaintiffs Mac Calva and Tatyana Nosenko’s Petition for Order Releasing Property from Claim of Mechanic’s Lien.

The court orders that the property subject to the mechanic’s lien, located at 8105 Mulholland Terrace, Los Angeles, California 90046 and legally described as APN # 2381-029-006, is released from the claim of lien in the Mechanics Lien recorded by Restore A Floor, LLC on May 4, 2022 (no. 20220483299).  (Civ. Code, § 8488, subd. (b).)

The court orders that plaintiffs Mac Calva and Tatyana Nosenko shall recover from defendant Restore A Floor reasonable attorney’s fees in the amount of $3,575.  (Civ. Code, § 8488, subd. (c).)

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

IT IS SO ORDERED.

DATED:  March 6, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court