DAVE BISCHOF VS IAN FREEBAIRN-SMITH

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.