PETITION TO RELASE PROPERTY FROM LIEN

Moving Parties: Petitioners Frank and Annie Azzariti

Respondent: No timely opposition filed

POS: Moving OK

The petition alleges that on or about October 28, 2013, Respondent, a former tenant who was evicted from the subject property, caused to be recorded in the official records of the County of Los Angles, a duly verified claim of lien against the property, which lien was recorded as Instrument No. 20131536257. (Petition, Exhibit E.) The lien was in the amount of $34,000.00 for alleged labor, services, equipment or materials for “garage converted into studio apartment with full bath and closet, new outhouse build for laundry and restroom, new concrete slab.” However, Petitioner never gave Respondent any authorization or consent (as required under the lease agreement) to make the modifications, and to the best of Petitioners’ knowledge, Respondent is not a licensed contractor. Further, Respondent failed to bring an action to enforce the lien within 90 days after the recordation.

The petition was filed on 2/14/14.

Petitioners Frank and Annie Azzariti petition the court to release their property from mechanics lien filed by Respondent Juan Garcia, a former tenant who was evicted from the subject property, recorded in the official records of the County of Los Angles as Instrument No. 20131536257 on October 28, 2013.

PROCEDURAL COMPLIANCE:

The petition may not be filed until at least 10 days after the owner gives the claimant notice demanding that the claimant execute and record a release of the claim of lien. (CC § 8482.) Once the petition is filed, and before further proceedings, the clerk, or if there is no clerk, the judge, must set a date for the hearing not more than 30 days following the filing of the petition. The court may continue the hearing beyond the 30-day period, but good cause must be shown for any continuance. (CC § 8486.)

The petition and order fixing the date of hearing must be served on the lien claimant at least 15 days prior to the date set for hearing. Service must be in the manner in which a summons is required to be served, or by certified or registered mail, postage prepaid, return receipt requested and addressed to the lien claimant as provided in CC § 8116. When service is made by mail, service is complete five days following the date of deposit in the mail. (CC § 8486.) At the hearing the petitioner has the burden of proof on compliance with these rules; the claimant has the burden of proving the validity of the lien. (CC § 8488.)

The petition was filed on February 14, 2014, more than 10 days after Petitioners gave Respondent notice. The hearing of the petition is set to be heard within 30 days from the filing date. A copy of the petition and the notice setting the date for the hearing was served on Respondent by certified mail with return receipt on February 14, 2014. The petition and the notice of hearing date were served on the address on the claim of lien.

MERITS:

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. (CC § 8460(a).)

Under CC §§ 8480 et seq. summary procedures are available for a judicial declaration that the lien has been cancelled. At any time after expiration of the lien, when no action has been brought to enforce the lien, the owner, or the owner of any interest in the property, may petition the court for a decree to release the property from the lien. (CC § 8480.) This is done by filing a verified petition, with a copy of the claim of lien attached, that states all of the following: (1) the date the claim of lien was recorded, with a certified copy of the claim of lien attached to the petition; (2) the county in which the lien is recorded; (3) the book and page or series number of the recording; (3) the legal description of the property subject to the lien; (5) whether an extension of credit has been granted under CC § 8460, and if so, to what date, and that the time for commencement of an action to enforce the lien has expired; (6) that the owner has given notice under CC § 8482, demanding that the claimant execute and record a release, and that the claimant is unable or unwilling to do so, or cannot be found with reasonable diligence; and (7) whether the owner has filed for relief in bankruptcy, or there is another restraint to prevent the lien claimant from filing to foreclose the lien. (CC § 8484.)

The petition is verified and alleges: the legal description of the subject property (Petition ¶ 1); on or about October 28, 2013, Respondent recorded a claim of lien with the Los Angeles County Recorder as Instrument Number 20131536257 (Id. ¶ 6, Exh. E); Respondent failed to bring an action to enforce the lien within 90 days after the recordation (Id. ¶ 8); no action to foreclose the lien has been filed, no extension of credit has been recorded, and the time period during which suit can be brought to foreclose the lien has expired (Ibid.); on January 29, 2014, Petitioners sent Respondent a written demand to remove the lien by certified mail (Id. ¶¶ 10-11, Exhs. F-G); Respondent did not respond to the demand (Id. ¶ 12); and that to the best of Petitioners’ knowledge, Respondent has not filed for relief in bankruptcy and there is no other restraint to prevent Respondent from filing to foreclose the lien (Id. ¶ 13). A copy of the lien is attached as Exhibit “E” to the petition. (Petition ¶ 6, Exh. E.)

No opposition has been filed by the Respondent. Thus, the petition is granted.