GERARDO BRAMBILA VS JUAREZ CONSTRUCTION, INC.

Tentative Rulings

Case Number: 19STCP02456    Hearing Date: January 08, 2020    Dept: 94

Petitioner Gerardo Brambila’s Petition to Release Property from Lien is GRANTED. In addition, Petitioner’s request for attorneys’ fees is GRANTED in the amount of $1,275. However, the request for costs in the amount of $448.70 is DENIED.

ANALYSIS:

I. Background

On February 11, 2019, Respondent Juarez Construction, Inc. (“Respondent”) recorded a Mechanic’s Lien against Petitioner Gerardo Brambila’s (“Petitioner”) property. On June 17, 2019, Petitioner filed the instant Petition for Release of Mechanic’s Lien (the “Petition”). On the same date, the Court clerk filed a Notice of Hearing on Petition placing the matter for hearing on October 21, 2019, in Department 94.

On October 21, 2019, the Court continued the hearing to January 8, 2020, and ordered Petitioner to file a proof of service of the Petition or Notice of Hearing on Petition at least fifteen (15) days before the next hearing date. (10/21/19 Minute Order.)

To date, no opposition or reply briefs have 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

1. Petition Requirements

Civil Code section 8484 requires that the petition for release order be verified by the petitioner and allege the following:

(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.

Petitioner has properly complied with the pre-filing notice and demand requirement. (Pet., Rosen Decl., ¶7 and Exh. B.) Petitioner timely served a written demand to remove the lien on May 24, 2019. (Id.) The Petition was filed 10 or more days after the demand was given to Respondent. (See Civ. Code, § 8482.) As to the merits, the Court finds Petitioner has satisfied the requirements of Civil Code section 8484. There are no indications that an action to enforce this lien has been commenced and the 90-day time period to commence the action has expired. (Pet., Rosen Decl., ¶¶ 5-6 and Exh. A.)

In addition, “[t]he 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).) The Petitioner bears the burden of proving he complied with service and date for hearing requirements. (Civ. Code § 8488, subd. (a).)

Here, as directed by the Court, Petitioner filed a Proof of Service on 11/19/2019. It demonstrates that Juarez Construction, Inc. was served with the Notice and the Petition by serving the registered agent for service of process, Casimira Juarez, by substituted service on November 6, 2019. (11/06/19 Proof of Service.) The Notice and the Petition were then mailed, pre-paid first-class, to Respondent. (Id.) Service was effectuated in the same manner as service of summons. Thus, the service requirement is satisfied.

1. Attorney’s Fees

Here, Petitioner’s counsel states he has spent four hours drafting this Petition, anticipates spending one hour replying to Respondent’s opposition, and anticipates spending three hours at the hearing, for a total of 8 hours at $425.00 an hour, totaling $3,400. (Pet., Rosen Decl., ¶ 11.) The Court finds this to be excessive because the Petition is unopposed, and because of the relative simplicity of this Petition. An award of $1,275 for three hours of attorney time is reasonable. Petitioner also requests costs in the amount of $448.70. (Id., ¶ 12.) However, because Civil Code section 8488 only provides for an award of attorneys’ fees, not costs, Petitioner’s request for costs is denied. (See Civ. Code § 8488, subd. (c).)

IV. Conclusion & Order

For the foregoing reasons, the Petition for Release of Mechanic’s Lien is GRANTED. In addition, Petitioner’s request for attorneys’ fees is GRANTED in the amount of $1,275. However, the request for costs in the amount of $448.70 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.