SANDY M. HUNTER, AS A TRUSTEE OF THE ELEANOR A. MOLLER AND DIANA E. MOLLER TRUST VS DAVE BISCHOF

Tentative Rulings

Case Number: 19STCP03187    Hearing Date: February 03, 2020    Dept: 25

PETITION TO RELEASE MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

Petitioner Sandy M. Hunter’s Petition to Release Mechanic’s Lien is GRANTED.

Case Number: 19STCP03187    Hearing Date: December 02, 2019    Dept: 94

The Eleanor A. Moller and Diane E. Moller Trust v. Bischof, et al.

RELEASE OF MECHANIC’S LIEN

(Civil Code § 8480)

TENTATIVE RULING:

IF PETITIONER FILES AN AMENDED PROOF OF SERVICE DEMONSTRATING PROPER SERVICE OF THE NOTICE OF HEARING ON RESPONDENT PRIOR TO THE HEARING AND PRESENTS PROOF OF THE SAME IN COURT ON DECEMBER 2, 2019, THE PETITION IS GRANTED.

OTHERWISE, THE HEARING ON THE PETITION TO RELEASE MECHANIC’S LIEN IS CONTINUED TO FEBRUARY 3, 2020 AT 10:30 AM IN DEPARTMENT 94 TO ALLOW PETITIONER TO FILE SUPPLEMENTAL PAPERS DEMONSTRATING COMPLIANCE WITH THE SERVICE REQUIREMENTS.

ANALYSIS:

Petitioner Sandy M. Hunter, as Trustee of the Eleanor A. Moller and Diane E. Moller Trust (“Petitioner”) filed the instant Petition for Release of Mechanic’s Lien against Respondent Dave Bischof (“Respondent”) on July 26, 2019. The Court set the Petition for hearing on December 2, 2019. On August 13, 2019, Petitioner filed proof of service of the Summons, Petition and Civil Cover Sheet.

Legal Standard

Civil Code section 8480 provides that the owner of property 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. (Civil Code, § 8480, subd. (a).) Section 8460 provides that “[t]he claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien.” (Civil 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.” (Civil 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. (Civil Code, § 8460, subd. (b).)

A property owner may not petition for a release order until he or she gives the claimant notice demanding that the claimant execute and record a release of lien claim at least ten days before filing the petition. (Civil Code, § 8482.) Civil Code section 8484 requires that the petition for release order be verified by the petitioner and allege 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.

Petitioner has properly complied with the pre-filing notice and demand requirement. (Petition, ¶7; Exh. B.) Petitioner timely served a written demand to remove the lien on January 28, 2019 and February 6, 2019. (Ibid.) The instant 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.

However, there is no proof of service of the Notice of Hearing on Respondent, as required by Civil Code section 8486, subdivision (b). The proof of service filed on August 13, 2019 indicates only that Respondent was served with the Summons, Petition and Civil Cover Sheet. (Proof of Service, filed 8/13/19, ¶2.) Petitioner bears the burden of proof on this issue. (See Civ. Code, § 8488, subd. (a).)

UNLESS PETITIONER FILES AN AMENDED PROOF OF SERVICE DEMONSTRATING PROPER SERVICE OF THE NOTICE OF HEARING ON RESPONDENT PRIOR TO THE HEARING, THE HEARING ON THE PETITION TO RELEASE MECHANIC’S LIEN IS CONTINUED TO FEBRUARY 3, 2020 AT 10:30 AM IN DEPARTMENT 94 TO ALLOW PETITIONER TO FILE SUPPLEMENTAL PAPERS DEMONSTRATING COMPLIANCE WITH THE SERVICE REQUIREMENTS. FAILURE TO COMPLY WITH THE COURT’S ORDERS MAY RESULT IN THE PETITION BEING PLACED OFF CALENDAR OR DENIED.

Court clerk to give notice.