Case Number: EC067128 Hearing Date: June 08, 2018 Dept: A

Magran v Subcrete, Inc.

PETITION FOR RELEASE ORDER OF MECHANICS LIEN PER CIVIL CODE §8484

Calendar: 9

Case No: EC067128

Hearing Date: 6/8/18

Action Filed: 9/5/17

Trial: (Default Prove Up Hearing 7/23/18)

MP: Plaintiffs Ilin Magran and Armen Manssourian

RP: None

ALLEGATIONS:

This action arises out of a written contract entered into between Plaintiffs Ilin Magran and Armen Manssourian and Defendant Subcrete, Inc. to construct and remodel a single family residence located at 3642 Saint Elizabeth Road, Glendale, CA 91206. Plaintiff alleges that the contract was to be performed by Subcrete on a “cost basis” with Plaintiffs paying for the materials and Subcrete paying for the labor, costs, and services, plus an 8% mark-up above said costs incurred. Plaintiffs allege that they paid Subcrete but that Subcrete abandoned the project without notice on January 30, 2017.

The complaint, filed September 5, 2017, alleges causes of action for: (1) breach of written contract; (2) statutory cause of action (Bus. & Profs. Code, §7071.5); and (3) negligent misrepresentation.

RELIEF REQUESTED:

Plaintiffs seek an order releasing a lien on the property recorded by Subcrete.

DISCUSSION:

Plaintiffs filed this petition to seek an order releasing its property from the mechanic’s lien under the procedures in Civil Code §§8480 to 8488.

On December 13, 2017, Subcrete recorded a lien on the property through Instrument # 20171449137. (Mot., Ex. 4.) The mechanic’s lien is for $60,074.40 and Subcrete recorded it against the subject property. (Id.)

The purpose of a mechanic’s lien is to prevent private property owners from obtaining a benefit to their property without paying the cost for it. (Cal Sierra Construction, Inc. v. Comerica Bank (2012) 206 Cal.App.4th 841, 848.) The California Constitution directs the Legislature to provide for the speedy and efficient enforcement of mechanic’s liens in Article XIV, section 3. The mechanics’ lien system is the only creditors’ remedy stemming from a constitutional mandate. (Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803, 810.) The Legislature enacted the current statutory scheme for mechanic’s liens at Civil Code §§8000 to 9566 and it has been operative since July 1, 2012.

Plaintiffs are seeking an order under this statutory scheme that will release their property from the mechanic’s liens recorded by Subcrete.

Civil Code §8484 identifies the requirements for the petition for a release order, which include 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.)

Sections 8486 and 8488 identify the procedures for setting the hearing and the burdens of proof at the hearing. 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.

Under section 8486(b), the petitioner shall serve a copy of the petition and a notice of hearing on the respondent at least 15 days before the hearing. Section 8486(b) requires service to 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.

A review of the Petition reveals that the petition was not properly served on Subcrete. The proof of service shows that Subcrete was served as follows:

Subcrete, Inc.

Emil Makarian

1710 Torncrest Dr.

Glendale, Ca 91207

It is unclear if this address is the correct address for Subcrete. Based on the proof of service of the summons and complaint and the request for entry of default papers, Subcrete was served at 1420 N. San Fernando Road, Burbank, CA 91504. In addition, based on the Court’s review of its records, it appears that the aforementioned address is incorrect since Defendant Vahik Makarian’s answer filed on January 31, 2018 lists “1710 Thorncrest Dr.” Thus, the address listed in the Petition’s proof of service is incorrect. As a result, Plaintiffs have failed to comply with requirements of procedural due process and the express requirements of Civil Code §8486(b).

Accordingly, the Court will deny the Petition because Plaintiffs did not comply with the express requirements for serving notice of this hearing and a copy of the petition on Subcrete, as required by Civil Code §8486(b).

RULING:

Deny the Petition.