This case was last updated from Los Angeles County Superior Courts on 02/10/2021 at 06:38:37 (UTC).

THEODORE VAUGHAN, ET AL. VS PRECIOSO CONSTRUCTION

Case Summary

On 02/27/2020 THEODORE VAUGHAN filed an Other lawsuit against PRECIOSO CONSTRUCTION. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0901

  • Filing Date:

    02/27/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Petitioners

VAUGHAN THEODORE

VAUGHAN ALEXANDRA

Respondent

PRECIOSO CONSTRUCTION AKA PRECIOSO INC.

Attorney/Law Firm Details

Petitioner Attorney

ADAMS ANDREW

Respondent Attorney

LANDVER ALINA

 

Court Documents

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

1/8/2021: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

12/29/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Answer - Answer

12/15/2020: Answer - Answer

Certificate of Mailing for - Certificate of Mailing for (Ruling on Submitted Matter) of 12/10/2020

12/10/2020: Certificate of Mailing for - Certificate of Mailing for (Ruling on Submitted Matter) of 12/10/2020

Minute Order - Minute Order (Ruling on Submitted Matter)

12/10/2020: Minute Order - Minute Order (Ruling on Submitted Matter)

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

12/2/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Reply (name extension) - Reply Reply to Respondent's Opposition to Motion for Attorneys' Fees

11/23/2020: Reply (name extension) - Reply Reply to Respondent's Opposition to Motion for Attorneys' Fees

Notice (name extension) - Notice OF FAILURE TO CURE AND OF VIOLATION OF COURT ORDER

11/4/2020: Notice (name extension) - Notice OF FAILURE TO CURE AND OF VIOLATION OF COURT ORDER

Motion for Attorney Fees - Motion for Attorney Fees

7/17/2020: Motion for Attorney Fees - Motion for Attorney Fees

Minute Order - Minute Order (Court Order Re: Motion for Attorney Fees)

7/22/2020: Minute Order - Minute Order (Court Order Re: Motion for Attorney Fees)

Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Motion for Attorney Fees) of 07/22/2020

7/22/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Motion for Attorney Fees) of 07/22/2020

Motion to Strike (not anti-SLAPP) - without Demurrer - Motion to Strike (not anti-SLAPP) - without Demurrer

9/11/2020: Motion to Strike (not anti-SLAPP) - without Demurrer - Motion to Strike (not anti-SLAPP) - without Demurrer

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

9/17/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

9/17/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Proof of Service by Mail - Proof of Service by Mail

6/1/2020: Proof of Service by Mail - Proof of Service by Mail

Proof of Service by Mail - Proof of Service by Mail

6/1/2020: Proof of Service by Mail - Proof of Service by Mail

Proof of Service by Mail - Proof of Service by Mail

6/1/2020: Proof of Service by Mail - Proof of Service by Mail

First Amended Standing Order - First Amended Standing Order

2/27/2020: First Amended Standing Order - First Amended Standing Order

29 More Documents Available

 

Docket Entries

  • 03/11/2021
  • Hearing03/11/2021 at 11:00 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Petition to Release Property-Mechanic's Lien

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  • 03/11/2021
  • Hearing03/11/2021 at 11:00 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Attorney Fees

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  • 03/11/2021
  • Hearing03/11/2021 at 11:00 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer

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  • 01/08/2021
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 01/08/2021
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 01/08/2021
  • DocketReset - Court Unavailable, Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer scheduled for 01/12/2021 at 11:00 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 03/11/2021 11:00 AM

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  • 01/08/2021
  • DocketReset - Court Unavailable, Hearing on Petition to Release Property-Mechanic's Lien scheduled for 01/12/2021 at 11:00 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 03/11/2021 11:00 AM

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  • 01/08/2021
  • DocketReset - Court Unavailable, Hearing on Motion for Attorney Fees scheduled for 01/12/2021 at 11:00 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 03/11/2021 11:00 AM

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  • 12/29/2020
  • DocketProof of Service (not Summons and Complaint); Filed by: Theodore Vaughan (Petitioner); Alexandra Vaughan (Petitioner); As to: Precioso Construction (Respondent)

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  • 12/29/2020
  • DocketOpposition to Motion to Strike; Filed by: Theodore Vaughan (Petitioner); Alexandra Vaughan (Petitioner)

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42 More Docket Entries
  • 07/02/2020
  • DocketOn the Court's own motion, Hearing on Petition Petition to Release Property - Mechanic's Lien scheduled for 07/02/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Continued - Court's Motion was rescheduled to 09/17/2020 09:30 AM

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  • 06/01/2020
  • DocketProof of Service by Mail; Filed by: Theodore Vaughan (Petitioner); Alexandra Vaughan (Petitioner); As to: Precioso Construction (Respondent)

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  • 06/01/2020
  • DocketProof of Service by Mail; Filed by: Theodore Vaughan (Petitioner); As to: Precioso Construction (Respondent)

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  • 06/01/2020
  • DocketProof of Service by Mail; Filed by: Theodore Vaughan (Petitioner); Alexandra Vaughan (Petitioner); As to: Precioso Construction (Respondent)

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  • 03/04/2020
  • DocketHearing on Petition Petition to Release Property - Mechanic's Lien scheduled for 07/02/2020 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 03/04/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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  • 02/27/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 02/27/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 02/27/2020
  • DocketNotice of Hearing on Petition; Filed by: Clerk

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  • 02/27/2020
  • DocketPetition to Release Property - Mechanic's Lien; Filed by: Andrew Adams (Attorney); Theodore Vaughan (Petitioner); Alexandra Vaughan (Petitioner); As to: Theodore Vaughan (Petitioner); Alexandra Vaughan (Petitioner); Precioso Construction (Respondent)

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Tentative Rulings

Case Number: 20STCP00901    Hearing Date: December 02, 2020    Dept: 25

HEARING DATE: Wed., December 2, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Vaughan, et al v. Precioso Construction PET. FILED: 02-27-20

CASE NUMBER: 20STCP00901

NOTICE: OK

PROCEEDINGS: MOTION FOR ATTORNEY’S FEES

MOVING PARTY: Petitioners Theodore Vaughan and Alexandra Vaughan

RESP. PARTY: Respondent Precioso Construction

MOTION FOR ATTORNEY’S FEES

(Civ. Code § 8488)

TENTATIVE RULING:

Petitioners Theodore Vaughan and Alexandra Vaughan’s Motion for Attorney’s Fees is CONTINUED TO JAN 12, 2021 at 11:00 a.m. to allow for the resolution of underlying Petition for Release of Mechanic’s Lien, which the Court took under submission on November 5, 2020.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of November 17, 2020 [ ] Late [ ] None

REPLY: None filed as of November 23, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background & Discussion

On February 27, 2020, Petitioners Theodore Vaughan and Alexandria Vaughan (collectively, “Petitioners”) filed a Petition to Release Property – Mechanic’s Lien (the “Petition”) against Respondent Precioso Construction (“Respondent”) seeking an order to release a mechanic’s lien filed on November 27, 2019, as well as attorney’s fees and costs.

An initial hearing on the Petition was held on July 2, 2020. At that time, the Court found Petitioners satisfied the pre-filing demand requirements of Civil Code section 8482 and the petition requirements of Civil Code section 8484. (7/2/20 Minute Order.) However, it also noted several deficiencies with Petitioners’ proof of service. (Id.) The Court ordered Petitioners to file an amended proof of service and warned that failure to do so could result in the Petition being placed off calendar or denied. (Id.)

On July 17, 2020, Petitioners filed the instant Motion for Attorney’s Fees (the “Motion”).

At the continued September 17 hearing on the Petition, the Court found Petitioners had not filed amended proofs of service as requested and continued the hearing once more. (9/17/20 Minute Order.) Petitioners filed amended proofs of service on September 17, 2020. Respondent filed a Notice of Failure to Cure and of Violation of Court Order on November 4, 2020, but no opposition on the merits. Following oral argument from the parties at the November 5th continued hearing, the Court took the matter under submission.

Respondent filed an Opposition to this Motion on November 17, and Petitioners filed a Reply on November 23.

Civil Code section 8488, subdivision (c), provides that the prevailing party is entitled to reasonable attorney’s fees. However, as Court has not yet issued a ruling on the underlying Petition, the prevailing party has not yet been determined. Accordingly, this Motion is CONTINUED to allow for the resolution of the Petition.

  1. Conclusion & Order

For the foregoing reasons, Petitioners Theodore Vaughan and Alexandra Vaughan’s Motion for Attorney’s Fees is CONTINUED TO JAN 12, 2021 at 11:00 a.m. to allow for the resolution of underlying Petition for Release of Mechanic’s Lien, which the Court took under submission on November 5, 2020.

Moving party is ordered to give notice.

Case Number: 20STCP00901    Hearing Date: November 05, 2020    Dept: 25

HEARING DATE: Thu., November 5, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Vaughan, et al. v. Precioso Construction PET. FILED: 02-27-20

CASE NUMBER: 20STCP00901

NOTICE: OK

PROCEEDINGS: PETITION TO RELEASE PROPERTY – MECHANIC’S LIEN

MOVING PARTY: Petitioners Theodore Vaughan and Alexandria Vaughan

RESP. PARTY: Respondent Precioso Construction

PETITION TO RELEASE MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

Petitioners Theodore Vaughan and Alexandria Vaughan’s Petition to Release Property is GRANTED ON THE CONDITION THAT, at the hearing, Petitioners’ counsel demonstrates Respondent’s counsel was served with the Petition at least 15 days before this hearing. Should Petitioners’ counsel fail to appear, the Petition will be DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[ ] At least 15 Days Lapsed (Civ. Code § 486(b)) NO

[ ] Correct Manner of Service (Civ. Code § 8486(b)) NO

OPPOSITION: None filed as of November 3, 2020 [ ] Late [X] None

REPLY: None filed as of November 3, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On February 27, 2020, Petitioners Theodore Vaughan and Alexandria Vaughan (collectively, “Petitioners”) filed the instant Petition to Release Property – Mechanic’s Lien (the “Petition”) against Respondent Precioso Construction (“Respondent”) seeking an order to release a mechanic’s lien filed on November 27, 2019, as well as attorney’s fees and costs.

An initial hearing on the Petition was held on July 2, 2020. At that time, the Court found Petitioners satisfied the pre-filing demand requirements of Civil Code section 8482 and the petition requirements of Civil Code section 8484. (7/2/20 Minute Order.) However, it also noted several deficiencies with Petitioners’ proof of service. (Id.) The Court ordered Petitioners to file an amended proof of service and warned that failure to do so could result in the Petition being placed off calendar or denied. (Id.)

On July 17, 2020, instead of filing amended proofs of service, Petitioners’ counsel filed a supplemental declaration. On September 8, 2020, Respondent filed a Notice of Failure to Cure and of Violation of Court Order.

At the September 17, 2020 hearing, the Court found Petitioners had not filed amended proofs of service as requested and continued the hearing once more. (9/17/20 Minute Order.) Petitioners filed amended proofs of service on September 17, 2020.

No opposition to the Petition has been filed.

  1. 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).)

  1. Discussion

Having previously found that all other requirements for the Petition have been satisfied, the Court addresses only the service requirement.

A. 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. 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).) (Italics added.) Section 8108 provides addresses at which a respondent must be served, depending on the title of the person to be served. The petitioner bears the burden of proving he complied with service and date for hearing requirements. (Civ. Code. § 8488, subd. (a).)

As noted above, at the initial July 2, 2020 hearing, the Court identified several deficiencies in Petitioners’ proofs of service. Specifically, the Court found that the three proofs of service were incomplete because they did not include the date the moving papers were served or the name of the person effectuating service by mail. (7/2/20 Minute Order.) The proofs of service also did not identify the name of the person served on behalf of the corporate Respondent. (Id.) On September 17, 2020, the Court found that a declaration filed by Petitioners’ counsel was insufficient to cure the defects in the previously filed proofs of service. (9/17/20 Minute Order.)

That same day, Petitioners filed an amended proof of service for the Petition. It states that the Petition was served via certified mail as required by Civil Code section 8486, on March 9, 2020. (9/17/20 Proof of Service.) Respondent filed a late Notice of Failure to Cure and of Violation of Court Order on November 4, arguing the proof of service is defective as Respondent is a corporation and Petitioners failed to identify the person who was served on behalf of the corporation. (11/4/20 Resp. Brief, p. 3:11-12.) The Court notes, however, that in the supplemental declaration filed on July 17, 2020, Petitioners presented evidence that the Petition had been served via certified mail at three different addresses, including 2 Red Tail Lane, Ladera Ranch, CA 92694, the home address of Dennis Precioso (“Dennis”), the person with whom Petitioners worked with before the Petition was filed. (7/17/20 Adams Decl., ¶¶ 3, 7, Exhs. 1-3.) Notably, Respondents filed a Motion to Strike this declaration on September 11, 2020 arguing, in part, that although Dennis’ wife signed the return receipt, the documents she received did not include a copy of the Petition. The Motion to Strike is scheduled for March 24, 2021.

Petitioners also filed a proof of service on September 17, 2020 demonstrating that the Petition was electronically served on Respondent’s Counsel, Alina Landver. (9/17/20 Proof of Service.) This proof of service, however, does not indicate the date the documents were served. (Id. at ¶ 3(c).) Petitioners’ counsel is admonished for failing to cure a relatively simple proof of service issue on multiple occasions. Indeed, it is difficult for the Court to have to piece together whether the service requirements of Section 8486 have been met from Petitioners’ multiple filings.

However, in the interest of judicial economy, Petitioners’ counsel is ordered to appear at the hearing to clarify when the Petition was served on Respondent’s counsel. Given that Respondent has already appeared in this action through its attorney, if the Court finds the Petition was served on Ms. Landver at least 15 days before this hearing, the Petition will be granted.

  1. Conclusion & Order

For the foregoing reasons, Petitioners Theodore Vaughan and Alexandria Vaughan’s Petition to Release Property is GRANTED ON THE CONDITION THAT, at the hearing, Petitioners’ counsel demonstrates Respondent’s counsel was served with the Petition at least 15 days before this hearing. Should Petitioners’ counsel fail to appear, the Petition will be DENIED.

Moving party is ordered to give notice.

Case Number: 20STCP00901    Hearing Date: September 17, 2020    Dept: 25

HEARING DATE: Thu., September 17, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Vaughan, et al. v. Precioso Construction PET. FILED: 02-27-20

CASE NUMBER: 20STCP00901

NOTICE: NO

PROCEEDINGS: PETITION TO RELEASE PROPERTY – MECHANIC’S LIEN

MOVING PARTY: Petitioners Theodore Vaughan and Alexandria Vaughan

RESP. PARTY: Respondent Precioso Construction

PETITION TO RELEASE MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

Petitioners Theodore Vaughan and Alexandria Vaughan’s Petition to Release Property is CONTINUED TO NOV 5, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioners are ordered to file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so will result in the Petition being placed off calendar or denied. Respondent must also file a proof of service demonstrating its Notice of Failure to Cure and Violation of Court Order was properly served on Petitioners.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[ ] Correct Address (CCP §§ 1013, 1013a) NO

[ ] At least 15 Days Lapsed (Civ. Code § 8486(b)) NO

[ ] Correct Manner of Service (Civ. Code § 8486(b)) NO

OPPOSITION: None filed as of September 15, 2020 [ ] Late [X] None

REPLY: None filed as of September 15, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On February 27, 2020, Petitioners Theodore Vaughan and Alexandria Vaughan (collectively, “Petitioners”) filed the instant Petition to Release Property – Mechanic’s Lien (the “Petition”) against Respondent Precioso Construction (“Respondent”) seeking an order to release a mechanic’s lien filed on November 27, 2019, as well as attorney’s fees and costs.

An initial hearing on the Petition was held on July 2, 2020. At that time, the Court noted several deficiencies with Petitioners’ proof of service. (7/2/20 Minute Order.) The Court ordered Petitioners to file an amended proof of service and warned that failure to do so could result in the Petition being placed off calendar or denied. (Id.)

On July 17, 2020, instead of filing supplemental proofs of service, Petitioners’ counsel filed a supplemental declaration. On September 8, 2020, Respondent filed a Notice of Failure to Cure and of Violation of Court Order.

  1. 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).)

  1. Discussion

A. Service Requirements

As an initial matter, the Court addresses the issue of notice.

The 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).) Section 8108 provides addresses at which a respondent must be served, depending on the title of the person to be served. The petitioner bears the burden of proving he complied with service and date for hearing requirements. (Civ. Code. § 8488, subd. (a).)

As noted above, at the initial July 2, 2020 hearing, the Court identified several deficiencies in Petitioners’ proofs of service. Specifically, the Court found that the three proofs of service filed by Petitioners were incomplete because they did not include the date the moving papers were served or the name of the person effectuating service by mail. (7/2/20 Minute Order.) The proofs of service also did not identify the name of the person served on behalf of corporate Respondent. (Id.)

Petitioners’ counsel submitted a supplemental declaration on July 17, 2020. Therein, he attempts to explain why the proofs of service are sufficient and attaches copies of return receipts that counsel argues demonstrate the Petition was properly served. (7/17/20 Adams Decl., ¶ 3, Exhs. 1-3.) However, this is insufficient. At the previous hearing, the Court specifically noted that the proofs of service filed were incomplete, yet Petitioners failed to file amended proofs of service. (7/2/20 Minute Order.) In addition, Petitioners’ counsel’s supplemental declaration does not include a proof of service demonstrating it was served on Respondent. (See Id.) Thus, the Court cannot find that Respondent was given an opportunity to respond to the Petition or the supplemental declaration.

In the interest of resolving this matter on the merits, the Court will CONTINUE the hearing one last time to allow Petitioners to file and serve supplemental papers addressing the deficiencies noted above. Petitioners must file fully completed proofs of service demonstrating the Petition and all supplemental papers filed with the Court were properly served on Respondent. Failure to do so will result in the Petition being placed off calendar or denied.

The Court also notes that Respondent’s Notice of Failure to Cure and Violation of Court Order does not include a proof of service demonstrating it was served on Petitioners. Respondent is ordered to file a proof of service demonstrating it was properly served on Petitioners.

  1. Conclusion & Order

For the foregoing reasons, Petitioners Theodore Vaughan and Alexandria Vaughan’s Petition to Release Property is CONTINUED TO NOV 5, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioners are ordered to file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so will result in the Petition being placed off calendar or denied. Respondent must also file a proof of service demonstrating its Notice of Failure to Cure and Violation of Court Order was properly served on Petitioners.

Moving party is ordered to give notice.

Case Number: 20STCP00901    Hearing Date: July 02, 2020    Dept: 25

PETITION TO RELEASE MECHANIC’S LIEN

(Civ. Code § 8480, et seq.)

TENTATIVE RULING:

Petitioners Theodore Vaughan and Alexandria Vaughan’s Petition to Release Property is CONTINUED TO SEPTEMBER 17, 2020_ at 9:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioners are ordered to file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Petition being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[ ] At least 15 Days Lapsed (Civ. Code § 8486(b)) NO

[ ] Correct Manner of Service (Civ. Code § 8486(b)) NO

OPPOSITION: None filed as of June 30, 2020 [ ] Late [X] None

REPLY: None filed as of June 30, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On February 27, 2020, Petitioners Theodore Vaughan and Alexandria Vaughan (collectively, “Petitioners”) filed the instant Petition to Release Property – Mechanic’s Lien (the “Petition”) against Respondent Precioso Construction (“Respondent”) seeking an order to release a mechanic’s lien filed on November 27, 2019, as well as attorney’s fees and costs.

  1. 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).)

  1. Discussion

A. Service Requirements

As an initial matter, the Court addresses the issue of notice.

The 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).) Section 8108 provides addresses at which a respondent must be served, depending on the title of the person to be served. The petitioner bears the burden of proving he complied with service and date for hearing requirements. (Civ. Code. § 8488, subd. (a).)

Here, Petitioners filed three proofs of service purporting to demonstrate they served Respondent with the Petition and Notice of Hearing in accordance with Civil Code section 8486, subdivision (b) by registered mail at the following three addresses: (1) C/O Mail Center, 450 SW Gemini Way #7790, Beaverton, OR 97008, (2) 2 Red Rail Lane, Ladera Ranch, CA 92694, and (3) 27702 Crown Valley Pkwy #D4-434, Ladera Ranch, CA 92694. (6/1/20 Proofs of Service.) However, all three proofs of service are incomplete. Specifically, the proofs of service do not include the date the moving papers were served or the name of the person effectuating service by mail. (Id.) Instead, the proofs of service improperly state that the “U.S. Mail Service” is effectuating service. (Id. at ¶ 7.) In addition, although Respondent is a corporation (Pet., ¶ 2), the proofs of service do not identify the name of the person served on behalf of the corporation (Proofs of Service, ¶ 3(b).)

Thus, Petitioners are ordered to file an amended proof of service correcting the deficiencies noted above.

B. Petition Requirements

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.

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. (Civ. Code, § 8482.)

Here, Petitioners provided a certified copy of the mechanic’s lien (Pet., Exh. A) and have properly alleged the date of recordation of the lien, the county in which the lien is recorded, the legal description of the property against which the lien was recorded, and that no extension of credit has been granted. (Pet., ¶¶ 1, 3-5.) In addition, Petitioners complied with the pre-filing notice and demand requirement by serving Respondent with a written demand to remove the lien on December 27, 2019, more than 10 days before this Petition was filed. (Id., ¶¶ 5-6, Exh. B.) There is no indication that an action to enforce the lien has been commenced and the 90-day time period to commence such action has now expired. (Id. at ¶ 4.) Furthermore, Petitioners allege that Respondent has not filed for bankruptcy and that no other restraint exists that prevents Respondent from filing to foreclose on the lien. (Id. at ¶ 8.)

Thus, the Court finds that Petitioners have satisfied the requirements of Civil Code sections 8484 and 8482.

  1. Conclusion & Order

For the foregoing reasons, Petitioners Theodore Vaughan and Alexandria Vaughan’s Petition to Release Property is CONTINUED TO SEPTEMBER 17, 2020 at 9:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioners are ordered to file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Petition being placed off calendar or denied.

Moving party is ordered to give notice.

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