This case was last updated from Los Angeles County Superior Courts on 10/10/2021 at 11:55:06 (UTC).

KYLE YOUNG, ET AL. VS NORMA GOCHEZ, ET AL.

Case Summary

On 06/02/2020 KYLE YOUNG filed a Property - Other Real Property lawsuit against NORMA GOCHEZ. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0399

  • Filing Date:

    06/02/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs

YOUNG MARK

YOUNG KYLE

Cross Plaintiffs and Defendants

R A C CONSTRUCTION INC.

GOCHEZ NORMA

ROMANO FRANCHESCO

CASTRO ERICK

Defendant and Cross Defendant

GOCHEZ NORMA

Attorney/Law Firm Details

Plaintiff Attorney

MYERS DAVID A

Cross Plaintiff and Defendant Attorneys

OLSON SHAWN

SCHILLER MICHAEL I.

Defendant and Cross Defendant Attorney

SCHILLER MICHAEL I.

 

Court Documents

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO PROSECUTE AN...)

4/7/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO PROSECUTE AN...)

Notice - NOTICE NOTICE OF TRIAL, FSC, AND OSC

3/11/2021: Notice - NOTICE NOTICE OF TRIAL, FSC, AND OSC

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

3/11/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Response to Petition - DECLARATION OF SHAWN OLSON'S RESPONSE TO ORDER TO SHOW CAUSE RE: (A) MONETARY SANCTIONS AS TO ATTORNEY SHAWN OLSON & (B) FAILURE TO PROSECUTE CROSS- COMPLAINT

3/17/2021: Response to Petition - DECLARATION OF SHAWN OLSON'S RESPONSE TO ORDER TO SHOW CAUSE RE: (A) MONETARY SANCTIONS AS TO ATTORNEY SHAWN OLSON & (B) FAILURE TO PROSECUTE CROSS- COMPLAINT

Request for Dismissal - REQUEST FOR DISMISSAL AS TO COMPLAINT

12/4/2020: Request for Dismissal - REQUEST FOR DISMISSAL AS TO COMPLAINT

Unknown - AMENDED CROSS-COMPLAINT

12/28/2020: Unknown - AMENDED CROSS-COMPLAINT

Answer - ANSWER OF CROSS-DEFENDANT, NORMA GOCHEZ TO FIRST AMENDED CROSS-COMPLAINT

1/25/2021: Answer - ANSWER OF CROSS-DEFENDANT, NORMA GOCHEZ TO FIRST AMENDED CROSS-COMPLAINT

Order - ORDER ORDER ON DEFENDANT FRANCHESCO ROMANO'S MOTION TO SET ASIDE DEFAULT

10/9/2020: Order - ORDER ORDER ON DEFENDANT FRANCHESCO ROMANO'S MOTION TO SET ASIDE DEFAULT

Order - ORDER RELEASING PROPERTY FROM CLAIM OF LIEN

10/9/2020: Order - ORDER RELEASING PROPERTY FROM CLAIM OF LIEN

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON MOTION - OTHER PETITIO...)

10/9/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON MOTION - OTHER PETITIO...)

Notice of Posting of Jury Fees

9/24/2020: Notice of Posting of Jury Fees

Case Management Statement

9/24/2020: Case Management Statement

Proof of Service by Mail

9/24/2020: Proof of Service by Mail

Motion to Set Aside/Vacate Default

9/11/2020: Motion to Set Aside/Vacate Default

Motion re: - MOTION RE: PETITION FOR RELEASE OF PROPERTY FROM LIEN

9/14/2020: Motion re: - MOTION RE: PETITION FOR RELEASE OF PROPERTY FROM LIEN

Notice of Hearing on Petition

9/14/2020: Notice of Hearing on Petition

Notice of Ruling

9/9/2020: Notice of Ruling

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; NON-APPEARANCE CASE REVIEW)

9/8/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; NON-APPEARANCE CASE REVIEW)

23 More Documents Available

 

Docket Entries

  • 06/28/2022
  • Hearing06/28/2022 at 10:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Jury Trial

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  • 06/21/2022
  • Hearing06/21/2022 at 10:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Final Status Conference

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  • 04/07/2021
  • Docketat 08:30 AM in Department B; Order to Show Cause Re: (Monetary Sanctions against Cross-Complainant's counsel pursuant to CCP 177.5 up to $1,500 for Failure to Appear on 3/11/2021) - Held

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  • 04/07/2021
  • Docketat 08:30 AM in Department B; Order to Show Cause Re: Dismissal (For Failure to Prosecute and Failure to Appear for Case Management Conference on 3/11/2021) - Held

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  • 04/07/2021
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal For Failure to Prosecute an...)); Filed by Clerk

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  • 03/17/2021
  • DocketDECLARATION OF SHAWN OLSON'S RESPONSE TO ORDER TO SHOW CAUSE RE: (a) MONETARY SANCTIONS AS TO ATTORNEY SHAWN OLSON & (b) FAILURE TO PROSECUTE CROSS- COMPLAINT; Filed by R A C CONSTRUCTION, INC. (Cross-Complainant); Franchesco Romano (Cross-Complainant)

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  • 03/11/2021
  • Docketat 08:30 AM in Department B; Case Management Conference - Held

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  • 03/11/2021
  • DocketNotice (Notice of Trial, FSC, and OSC); Filed by NORMA GOCHEZ (Cross-Defendant)

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  • 03/11/2021
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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  • 01/25/2021
  • DocketAnswer (of Cross-Defendant, Norma Gochez to First Amended Cross-Complaint); Filed by NORMA GOCHEZ (Cross-Defendant)

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33 More Docket Entries
  • 07/09/2020
  • DocketAnswer; Filed by NORMA GOCHEZ (Defendant)

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  • 07/01/2020
  • DocketProof of Personal Service; Filed by KYLE YOUNG (Plaintiff); MARK YOUNG (Plaintiff)

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  • 06/24/2020
  • DocketProof of Personal Service; Filed by KYLE YOUNG (Plaintiff); MARK YOUNG (Plaintiff)

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  • 06/18/2020
  • DocketNotice and Acknowledgment of Receipt; Filed by KYLE YOUNG (Plaintiff); MARK YOUNG (Plaintiff)

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  • 06/09/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/09/2020
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 06/02/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 06/02/2020
  • DocketSummons (on Complaint); Filed by KYLE YOUNG (Plaintiff); MARK YOUNG (Plaintiff)

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  • 06/02/2020
  • DocketCivil Case Cover Sheet; Filed by KYLE YOUNG (Plaintiff); MARK YOUNG (Plaintiff)

    Read MoreRead Less
  • 06/02/2020
  • DocketComplaint; Filed by KYLE YOUNG (Plaintiff); MARK YOUNG (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: 20TRCV00399    Hearing Date: October 09, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka

Department B

Friday, October 9, 2020

Calendar No. 3

PROCEEDINGS

Kyle Young, et al. v. Norma Gochez, et al.

20TRCV00399

  1. Kyle Young’s Petition for Release of Mechanics Lien

TENTATIVE RULING

Kyle Young’s Petition for Release of Mechanics Lien is granted.

Plaintiff Kyle Young moves for an order to release the mechanic’s lien recorded by Defendants Franchesco Roman and RAC Construction, Inc. against the property commonly known as 5959-5961 W. 85th Place Los Angeles, CA 90045, County of Los Angeles, APN #4107-020-011, recorded on April 27, 2020, in the official records of the County of Los Angeles, document number 20200458743.

Legal Standard

“The claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien. If 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. If a claimant has not commenced an action within the time provided in Civ. Code § 8460, the property owner may petition the court for an order releasing the property from the lien. Civ. Code, § 8480(a). “A release order does not bar any other cause of action or claim for relief by the claimant, other than an action to enforce the claim of lien that is the subject of the release order.” Civ. Code, § 8480(b). A petition for a release order may be joined with a pending action to enforce the lien claim. Civ. Code, § 8480(c).

“A petition for a release order shall be verified and shall allege all of 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.” Civ. Code, § 8484.

At least 10 days before petitioning for a release order, the owner must give the claimant a notice demanding that the claimant execute and record a release of the lien claim. The notice must comply with the requirements of Civ. Code § 8100 et seq. and state the grounds for the demand. Civ. Code, § 8482.

Civil Code § 8486 states:

“(a) On the filing of a petition for a release order, the clerk shall set a hearing date. The date shall be not more than 30 days after the filing of the petition. The court may continue the hearing only on a showing of good cause, but in any event the court shall rule and make any necessary orders on the petition not later than 60 days after the filing of the petition.

(b) 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.”

“At the hearing both (1) the petition and (2) the issue of compliance with the service and date for hearing requirements of this article are deemed controverted by the claimant. The petitioner has the initial burden of producing evidence on those matters. The petitioner has the burden of proof as to the issue of compliance with the service and date for hearing requirements of this article. The claimant has the burden of proof as to the validity of the lien.” Civ. Code, § 8488.

“[W]here a claimant has already filed suit to enforce a mechanics lien or stop notice, the procedures identified in Connolly [Development, Inc. v. Superior Court (1976) 17 Cal.3d 803] may no longer be available to the property owner. In such case, the owner may instead file a motion in the enforcement action to have the matter examined by the trial court.” (Cal Sierra Const., Inc. v. Comerica Bank (2012) 206 Cal.App.4th 841, 845.) “A motion to remove a mechanic’s lien is recognized as a device that allows the property owner to obtain speedy relief from an unjustified lien or a lien of an unjustified amount without waiting for trial on the action to foreclose the lien.” (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318.)

“On such motion, the claimant bears the burden of establishing the ‘probable validity’ of the claim underlying the lien or stop notice. [Citation.] If the claimant fails to meet that burden, the lien and stop notice may be released in whole or in part. We refer to this procedure as a “Lambert motion.” (Cal Sierra Const., supra, 206 Cal.App.4th at p. 845, citing Lambert v. Superior Court (1991) 228 Cal.App.3d 383; see Lambert, at p. 388 [“If a claimant may use a mechanic's lien to protect the eventual award of an arbitrator, it follows from the due process discussion in Connolly that an owner may ask the court to remove an improper lien while arbitration is pending”].)

“In such motion, the question presented is not the ultimate merit of the contractor’s claim but whether the contractor should be entitled to retain the security of the mechanics lien or stop notice pending resolution of the matter.” (Cal Sierra Const., supra, 206 Cal.App.4th at p. 850.) “[T]he issue presented is limited to the ‘probable validity’ of the lien or stop notice. [Citation.] The task of a reviewing court is, in turn, ‘to ensure that the trial court's factual determinations are supported by substantial evidence.’ ” (Ibid.) “[U]nlike the grant of a motion to expunge the notice of lis pendens, the grant of a motion to remove a mechanic’s lien is essentially a judgment on the underlying foreclosure action that no lien exists—a judgment that, upon recordation, removes the lien from the public records.” (Howard S. Wright Construction, supra, 106 Cal.App.4th at p. 318.)

As discussed in Howard S. Wright Construction, supra, 106 Cal.App.4th 314, a party who files a mechanic’s lien claim bears the burden of establishing the probable validity of that claim on a motion to expunge that lien claim. The standard is the same applied to a writ of attachment. “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc., § 481.190.)

The court has the power to determine disputed facts on the basis of a preponderance of the evidence as disclosed in the affidavits and declarations (unlike summary judgment motions, for example, in which the court has no power to weigh the evidence). (See Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80 [court must “consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation”].) The trial court is not required to accept as true the sworn testimony of any witness or undisputed affidavit testimony. It may make contrary findings based on inferences drawn from other evidence. (See Bank of America v. Salinas Nissan (1989) 207 Cal.App.3d 260, 273.)

Discussion

Here, as an initial matter, Defendants have not filed an opposition to Plaintiff’s motion. The moving party generally bears the initial burden of proof on its motion and, therefore, lack of opposition does not automatically entitle the moving party to prevail on the motion. However, a party’s failure to file opposition can be considered as an admission that the motion is meritorious, and the Court can refuse to hear oral argument from such party. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Furthermore, since Defendants have not filed an opposition to the instant motion, Plaintiff’s evidence is uncontroverted.

Plaintiff’s uncontroverted evidence demonstrates that Defendants cannot establish a probable validity of their mechanic’s lien. Plaintiff sufficiently complied with all the applicable requirements of Civ. Code § 8484, and the petition is verified.

Plaintiff has established that Defendants failed to bring an action to enforce the Mechanics Lien within 90 days after the recordation of the lien as required by Civ. Code § 8460 (a). Here, no action has been filed to foreclose on the lien and no extension of credit has been recorded. The time period upon which to bring suit to foreclose on the lien has now expired. Thus, pursuant to Civil Code § 8460, the mechanics lien is unenforceable and must be released.

As Defendants have not submitted any evidence contradicting the evidence presented by Plaintiff, the Court finds that Defendants have not met their burden of establishing the probable validity of their mechanic’s lien claim. Therefore, the motion to release mechanic’s lien is granted.

Plaintiff is ordered to give notice of this ruling.

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Friday, Oct. 9, 2020

Department B Calendar No. 3

PROCEEDINGS

Kyle Young, et al. v. Norma Gochez, et al.

20TRCV00399

  1. Franchesco Romano’s Motion to Set Aside Default

TENTATIVE RULING

Franchesco Romano’s Motion to Set Aside Default is granted.

CCP § 473(b) states, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . .”

Defendant relies on the mandatory provision of CCP § 473(b) based on attorney fault. Defendant’s counsel provides competent evidence that the entry of default was caused by his calendaring error. (Decl., Shawn M. Olson, ¶ 1.) This evidence provides the requisite grounds of mistake, inadvertence, surprise, or neglect required to set aside the default.

Thus, the default of Defendant Franchesco Romano is hereby set aside. Romano is ordered to file and serve the proposed Answer attached to his motion within three days of this date.

Defendant is ordered to give notice of this ruling.

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