This case was last updated from Los Angeles County Superior Courts on 08/16/2019 at 21:53:18 (UTC).

DAVE BISCHOF VS IAN FREEBAIRN-SMITH

Case Summary

On 03/28/2018 a Contract - Other Contract case was filed by DAVE BISCHOF against IAN FREEBAIRN-SMITH in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4862

  • Filing Date:

    03/28/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

JON R. TAKASUGI

 

Party Details

Plaintiff

BISCHOF DAVE

Defendant

FREEBAIRN-SMITH IAN

 

Court Documents

Civil Case Cover Sheet

3/28/2018: Civil Case Cover Sheet

Summons - on Complaint

3/28/2018: Summons - on Complaint

Proof of Service by Mail

5/8/2018: Proof of Service by Mail

Motion for Order (name extension) - to Stay All Proceedings

5/8/2018: Motion for Order (name extension) - to Stay All Proceedings

Ex Parte Application (name extension) - Ex Parte Application re Order Shortening Time

2/20/2019: Ex Parte Application (name extension) - Ex Parte Application re Order Shortening Time

Order (name extension) - Order -

2/22/2019: Order (name extension) - Order -

Notice of Ruling - Notice of Ruling

3/4/2019: Notice of Ruling - Notice of Ruling

Motion re: (name extension) - Petition to Vacate Arbitration Award

3/4/2019: Motion re: (name extension) - Petition to Vacate Arbitration Award

Declaration re: Due Diligence - Declaration re: Due Diligence

3/12/2019: Declaration re: Due Diligence - Declaration re: Due Diligence

Minute Order - Minute Order (Hearing on Motion to Vacate Motion to Vacate Arbitration Award)

3/28/2019: Minute Order - Minute Order (Hearing on Motion to Vacate Motion to Vacate Arbitration Award)

Notice (name extension) - AMENDED NOTICE OF UNAVAILABILITY OF COUNSEL

7/17/2019: Notice (name extension) - AMENDED NOTICE OF UNAVAILABILITY OF COUNSEL

Answer - Answer

8/6/2019: Answer - Answer

Notice of Case Assignment - Limited Civil Case

3/28/2018: Notice of Case Assignment - Limited Civil Case

16 More Documents Available

 

Docket Entries

  • 04/01/2021
  • Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 09/25/2019
  • Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 08/06/2019
  • DocketAnswer; Filed by: Ian Freebairn-Smith (Defendant)

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  • 07/19/2019
  • DocketNotice Amended Notice of Unavailability of Counsel; Filed by: Ian Freebairn-Smith (Defendant)

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  • 07/17/2019
  • DocketAMENDED NOTICE OF UNAVAILABILITY OF COUNSEL; Filed by: Ian Freebairn-Smith (Defendant); As to: Dave Bischof (Plaintiff)

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  • 07/02/2019
  • DocketNotice Notice of Unavailability of Counsel; Filed by: Ian Freebairn-Smith (Defendant)

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  • 05/10/2019
  • DocketUpdated -- Petition to Vacate Arbitration Award: Filed By: Ian Freebairn-Smith (Defendant); Result: Granted; Result Date: 05/10/2019

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  • 05/10/2019
  • DocketMinute Order (Ruling on Submitted Matter Re: Motion to Vacate Arbitration A...)

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  • 05/10/2019
  • DocketCertificate of Mailing for Minute Order (Ruling on Submitted Matter Re: Motion to Vacate Arbitration A...) of 05/10/2019; Filed by: Clerk

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  • 03/28/2019
  • DocketMinute Order (Hearing on Motion to Vacate Motion to Vacate Arbitration Award)

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17 More Docket Entries
  • 05/08/2018
  • DocketHearing on Motion - Other to Stay All Proceedings scheduled for 08/30/2018 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/08/2018
  • DocketMotion for Order to Stay All Proceedings; Filed by: Dave Bischof (Plaintiff)

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  • 04/11/2018
  • DocketProof of Personal Service; Filed by: Dave Bischof (Plaintiff); As to: Ian Freebairn-Smith (Defendant); Service Date: 04/07/18; Service Cost: 69.50; Service Cost Waived: No

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  • 03/28/2018
  • DocketComplaint; Filed by: Dave Bischof (Plaintiff); As to: Ian Freebairn-Smith (Defendant)

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  • 03/28/2018
  • DocketCivil Case Cover Sheet; Filed by: Dave Bischof (Plaintiff)

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  • 03/28/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 03/28/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/28/2018
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 77 Stanley Mosk Courthouse

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  • 03/28/2018
  • DocketNon-Jury Trial scheduled for 09/25/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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  • 03/28/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 04/01/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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Tentative Rulings

Case Number: 18STLC04862    Hearing Date: December 17, 2019    Dept: 94

PETITION FOR RELEASE OF PROPERTY FROM LIEN AND ATTORNEYS’ FEES

(Civ. Code § 8480 et seq.)

TENTATIVE RULING:

For the foregoing reasons, the Petition for Release of Property from Lien and Attorneys’ Fees is DENIED.

RELIEF SOUGHT:

[X] Release of Mechanic’s Lien - Per CC § 8480.

[X] Attorneys’ Fees and Costs - Per CC § 8488(c).

I. Background

On March 28, 2018, Respondent Dave Bischoff filed a complaint against Petitioner to foreclose on mechanic’ lien and stay pending arbitration. Respondent’s Motion to Stay All Proceedings Pending Contractual Arbitration was denied on August 30, 2018 (8/30/18 Minute Order.) On January 4, 2019, Respondent, the AAA provided to Petitioner the arbitrator’s award in favor of Respondent. (Pet., Slade Decl., ¶ 2.)

On March 4, 2019, Petitioner filed a Petition to Vacate Arbitration Award. On May 10, 2019, this Court granted the petition, finding that the entire contract that was the basis for the mechanic’s lien was unenforceable on the basis of unconscionability. (5/10/19 Minute Order.) On September 25, 2019, a non-jury trial took place. Respondent was not present. (9/25/19 Minute Order.) The Court denied Petitioner’s oral request for release of mechanic’s lien, but he could file a petition to address the mechanic’s lien. (Id.) The Court also ordered the Complaint filed by Respondent on March 28, 2018 dismissed without prejudice. (Id.)

On October 23, 2019, Respondent filed this Notice of Petition and Verified Petition for Release of Property from Mechanic’s Lien (the “Petition”). Respondent filed an opposition on December 3, 2019. No reply brief has been filed.

II. Legal Standard

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, subd. (a).) A claimant must commence an action to enforce a lien within 90 days of recording the lien. (Civ. Code, § 8460, subd. (a).) Section 8460 further provides that “[i]f 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).) Section 8460 also provides that the 90-day time limit to commence an action to enforce a lien does not apply if there was an agreement to extend credit and a notice of that fact was recorded within 90 days after recordation of the claim of lien or more than 90 days after recordation of the claim of lien but before a purchaser or encumbrancer for value and in good faith acquires rights in the property. (Civ. Code, § 8460, subd. (b).)

III. Discussion

Petitioners argue they are entitled to relief under Code of Civil Procedure, section 8480 Respondent’s complaint to foreclose on mechanic’s lien has been dismissed and because there is no longer any pending action to enforce the lien.

However, a petition under section 8480 is appropriate only where a claimant has not commenced an action to enforce the lien within 90 days of filing the mechanic’s lien. Respondent’s mechanic’s lien was filed on December 28, 2017, and he commended an action to foreclose on that lien within 90 days on March 28, 2019.

Thus, relief under Code of Civil Procedure, section 8480 is inapplicable here.

III. Conclusion & Order

For the foregoing reasons, the Petition for Release of Property from Lien and Attorneys’ Fees is DENIED.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar