Judge: Stephanie M. Bowick, Case: 24STCP02629, Date: 2024-12-03 Tentative Ruling

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Case Number: 24STCP02629    Hearing Date: December 3, 2024    Dept: 19

TENTATIVE RULING

After consideration of the briefing filed and oral argument at the hearing, the Hearing on Petition FOR RELEASE OF PROPERTY FROM LIEN [Cal. Civil Code § 8480 et seq] is CONTINUED to April 9, 2025, in Department 19 of the Stanley Mosk Courthouse. 

For the reasons discussed below, the Court is not satisfied that proper notice of the hearing date has been given to Respondent.

The Court gives Petitioner opportunity to properly serve Respondent with notice of the continued hearing date.

Counsel for Petitioner to give notice.

STATEMENT OF THE CASE

On August 15, 2024, Petitioner Kun Hwa Gehres (“Petitioner”) filed the instant Verified Petition for Release of Property from Lien [Cal. Civ. Code § 8480 et seq.] (the “Petition”) against Respondent SMS USA Inc. (“Respondent”). The Petition seeks an order releasing the real property commonly known as 570 South Van Ness Ave, Los Angeles 90020 (the “Subject Property”) from a mechanic’s lien that was recorded against it by Respondent on March 27, 2024 as Document No. No. 2024-0196444 recorded in the Official Records of Los Angeles County (the “Claim of Mechanics Lien”). (Petition, ¶¶ 1-3, Ex. 1 [the Claim of Mechanics Lien].)

GROUNDS FOR PETITION

Pursuant to Civil Code section 8480 et seq., Petitioner moves for an order releasing the Claim of Mechanics Lien on the grounds that Respondent failed to bring an action to enforce the lien within 90 days after the recordation of the claim of lien as required by Civil Code § 8460, no action has been filed to foreclose the lien, no extension of credit has been recorded, and the time period during which suit can be brought to foreclose the lien has expired.

DISCUSSION

As explained by the Court of Appeal in Precision Framing Systems Inc. v. Luzuriaga (2019) 39 Cal.App.5th 457:

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. Thus, [it] is a procedural device for obtaining payment of a debt [owed] by a property owner for the performance of labor or the furnishing of materials used in construction.

Mechanics' lien law derives from our state Constitution .... The mechanics' lien is the only creditors' remedy stemming from constitutional command and our courts have uniformly classified the mechanics' lien laws as remedial legislation, to be liberally construed for the protection of laborers and materialmen.

However, [a]lthough mechanic's lien laws should be liberally construed to protect those who have contributed skills, services or materials, towards the improvement of property, it has been recognized that lien laws are for the protection of owners as well as mechanic's lien claimants.

The section of the Constitution referred to is not self-executing, and is inoperative except as supplemented by legislation. Mechanics liens are entirely of statutory creation, and the statute must be looked to both for the right to the lien and the mode by which it can be enforced. 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 464-465 (internal citations and quotations omitted).)

After a mechanic’s lien has been recorded, “[t]he owner of property or the owner of any interest in property subject to a claim of lien may petition the court for an order to release the property from the claim of lien if the claimant has not commenced an action to enforce the lien within the time provided in Section 8460.” (Civ. Code, § 8480(a).)

A.    Petition Requirements

Civil Code section 8484 provides that:

A petition for a release order shall be verified and shall allege all of the following:

(a) The date of recordation of the claim of lien. A certified copy of the claim of lien shall be attached to the petition.

(b) The county in which the claim of lien is recorded.

(c) The book and page or series number of the place in the official records where the claim of lien is recorded.

(d) The legal description of the property subject to the claim of lien.

(e) Whether an extension of credit has been granted under Section 8460, if so to what date, and that the time for commencement of an action to enforce the lien has expired.

(f) That the owner has given the claimant notice under Section 8482 demanding that the claimant execute and record a release of the lien and that the claimant is unable or unwilling to do so or cannot with reasonable diligence be found.

(g) Whether an action to enforce the lien is pending.

(h) Whether the owner of the property or interest in the property has filed for relief in bankruptcy or there is another restraint that prevents the claimant from commencing an action to enforce the lien.

(Civ. Code, § 8484.)

Civil Code section 8482 provides that:

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. 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.)

Here, the Court finds that the Petition complies with Civil Code section 8484. The Petition is verified, alleges the date of recordation of the Claim of Mechanic’s Lien, the county in which it was recorded [i.e., Los Angeles County], and attaches and incorporates by reference a certified copy of the Claim of Mechanic’s Lien. (Petition at ¶ 3, Ex. 1; id. at p. 2 [verification].) The Petition alleges the legal description of the Subject Property. (Id. at ¶ 1.)

The Petition alleges that no extension of credit has been granted, (id. at ¶ 4), that no action to foreclose the Claim of Mechanic’s Lien was filed, (id.), that the 90-day time period to enforce the Claim of Mechanic’s Lien has expired, (id.), that Petitioner has not filed for bankruptcy, (id. at ¶ 8), and that no other restraint exists preventing Respondent from filing an action to enforce the lien. (Id.) The Petition alleges that, on July 8, 2024, which is at least ten (10) days prior to the filing of the Petition, Petitioner sent Respondent, by registered or certified mail, a written demand to remove the Claim of Mechanic’s Lien. (Id. at ¶ 6, Ex. 2.) The written notice, which is attached to the Petition as Exhibit 2 and incorporated by reference, (ibid.) indicates that service was by way of certified mail. (Id. at Ex. 2, p. 2.)

Service of the written demand by either registered or certified mail is proper. (Civ. Code, §§ 8106(b), 8100.) The Petition alleges that Respondent is unwilling to execute a release of the lien and failed to respond to Petitioner’s written demand. (Petition at ¶¶ 5-6.)

Thus, the Court finds that Petition complies with Civil Code sections 8482 and 8484. 

B.     Service Requirements

“The petitioner shall serve a copy of the petition and a notice of hearing on the claimant at least 15 days before the hearing.” (Civ. Code, § 8486(b).) “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.” (Id.)

Civil Code section 8108 provides that:

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, or at any of the following addresses:

(a) If the person to be notified is an owner other than a public entity, the owner’s address shown on the direct contract, the building permit, or a construction trust deed.

(b) If the person to be notified is a public entity, the office of the public entity or another address specified by the public entity in the contract or elsewhere for service of notices, papers, and other documents.

(c) If the person to be notified is a construction lender, the construction lender’s address shown on the construction loan agreement or construction trust deed.

(d) If the person to be notified is a direct contractor or a subcontractor, the contractor’s address shown on the building permit, on the contractor’s contract, or on the records of the Contractors’ State License Board.

(e) If the person to be notified is a claimant, the claimant’s address shown on the claimant’s contract, preliminary notice, claim of lien, stop payment notice, or claim against a payment bond, or on the records of the Contractors’ State License Board.

(f) If the person to be notified is a surety on a bond, the surety’s address shown on the bond for service of notices, papers, and other documents, or on the records of the Department of Insurance.

(Civ. Code, § 8108.)

The petitioner bears the burden of proving compliance with the service and notice requirements. (Civ. Code, § 8488(a).)

On November 4, 2024, Petitioner filed a Proof of Service of Summons demonstrating that, on August 26, 2024, the Petition was personally served on an authorized agent for Respondent at 3785 Wilshire Blvd Unit 910 Los Angeles CA 90010 (the “Wilshire Address”), which is the same address listed on the Claim of Mechanics Lien. (Petition at ¶ 3, Ex. 1.) The Proof of Service of Summons was executed by a registered process server. (Evid. Code, § 647 [“The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”].)

Thus, the Court finds Petitioner sustains his burden of proof with respect to service of the Petition.

However, the Court finds that Petitioner fails to sustain his burden of proof with respect to service of the notice of hearing.

Also on November 4, 2024, Petitioner filed a “Proof Of Service Of Petition For Release Of Property From Lien By Mail” which indicates that the “Notice Of Hearing On Petition For Release Of Property From Lien” (the “Notice of Hearing”) was served by mail “with postage fully prepaid, return receipt requested….”

However, Civil Code section 8486, subdivision (b) provides that the notice of hearing, like the Petition, “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).)

The “Proof Of Service Of Petition For Release Of Property From Lien By Mail” merely indicates that the Notice of Hearing was served by placing it “in a sealed envelope, with postage fully prepaid, return receipt requested, addressed to” the Wilshire Address; it does not demonstrate that it was mailed to Respondent at the Wilshire Address by certified or registered mail.

Thus, the Court finds that Petitioner fails to sustain his burden of proof with respect to service of the notice of hearing.

As such, the Court continues the hearing to give Petitioner an opportunity to properly serve Respondent with notice of the continued hearing date.