Case Number: 18GDCP00010 Hearing Date: March 01, 2019 Dept: NCD

TENTATIVE RULING

Calendar: 11

Date: 3/1/19

Case No: 18 GDCP00010

Case Name: In the Matter of Trang Nguyen

PETITION FOR RELEASE OF PROPERTY FROM LIEN

Moving Party: Petitioner Trang Nguyen

Responding Party: Respondent German Bastidas Ibarra (No Opposition)

RULING:

[No Opposition]

The court has considered Petitioner’s Supplemental Brief Regarding Petitioner’s Costs, Reasonable Attorney’s Fees, and Penalties.

The court awards to Petitioner Trang Nguyen $721.31 [$721.31 requested] in costs, $10,039.50 [$10,039.50 requested] in reasonable attorneys’ fees pursuant to Civil Code section 8488, and $5,000.00 [$5,000 requested] in penalties, pursuant to CCP sections 765.010 and 765.040, the court finding that respondent filed a lien, knowing it was false, with intent to harass petitioner.

RELIEF REQUESTED:

Order the release of the Mechanic’s Lien on property located at 505 E. Ladera Street, Pasadena, California

SUMMARY OF FACTS:

Petitioner Trang Nguyen alleges that he is the owner of real property in Pasadena, and that respondent German Bastidas Ibarra claims to have contributed to a purported work of improvement on the property. Petitioner alleges that respondent recorded two claims of mechanic’s lien against the property on January 26, 2017.

On July 7, 2017, in a petition heard on Department A, the court ordered the property released from the original liens for respondent’s failure to bring an action to enforce the mechanic’s liens within ninety days after the liens were recorded.

The petition alleges that in July of 2017, respondent mailed to petitioner a preliminary notice of mechanic’s lien for the same work which was the subject of the original lien 2, that on July 21, 2017, petitioner sent respondent a written demand by mail that respondent refrain from filing a new mechanic’s lien for the same work as the released mechanic’s lien, but that on August 16, 2017, respondent recorded a claim of mechanic’s lien against the property based on the same work as released in the original liens.

Petitioner sent a written demand that respondent release the duplicate lien, to which respondent has not responded. Respondent failed to bring an action to enforce the duplicate lien within ninety days after the recordation of the claim of lien.

It is also alleged that respondent violated CCP § 765.010 by filing a lien against petitioner, knowing it was false, with the intent to harass petitioner, and that petitioner has sold the property, but had to secure a bond for 125% of the duplicate lien, and continues to pay premiums for the mechanics’ lien bond.

This matter was originally heard on February 1, 2019. There was some concern regarding the service of the petition, which was resolved at the hearing, and the court granted the petition for release of property from lien and signed the order on the petition. The matter was continued to this date:

“for a hearing on Petitioner’s costs and reasonable attorney’s fees and sanctions and penalties.”

Petitioner has filed a supplemental brief on these issues.

ANALYSIS:

Plaintiff seeks costs under CCP §1032 (b), which provides, “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Here, there is no dispute that petitioner was the prevailing party.

The costs sought are filing fees of $586.31 for initial appearance, and service and obtaining certified copy of mechanics lien, a $60 filing fee and a $75 filing fee for a total of $721.31. This appears reasonable.

Attorneys’ fees are sought pursuant to Civil Code § 8488:

“(a) 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.

(b) If judgment is in favor of the petitioner, the court shall order the property released from the claim of lien.

(c) The prevailing party is entitled to reasonable attorney’s fees.”

Here, the petition has been granted, judgment is in favor of petitioner and petitioner is accordingly entitled to reasonable attorneys’ fees.

Petitioner now submits a declaration and detailed billing records, and seeks $10,039.50 in fees (27.6 hours of attorney time at $350 per hour and 2.3 hours of paralegal time at $165 per hour). There is no opposition here challenging the reasonableness of the fees, and the billing appear to pertain to this matter. It appears these time records were kept despite an agreement to charge the client a $5,500 fixed fee to remove the lien. [Ex. 1]. The court may limit the fees to that fixed fee or may award the lodestar, which appears reasonable.

Petitioner also seeks penalties pursuant to CCP section 765.010, which provides, with respect to liens and encumbrances:

“(a) For purposes of this section:

(1) “Harass” means engage in knowing and willful conduct that serves no legitimate purpose.

(2) “Entity” includes both governmental and private entities.

(b) A person shall not file or record, or direct another to file or record, a lawsuit, lien, or other encumbrance, including a notice of lis pendens, against another person or entity knowing it is false, with the intent to harass the person or entity or to influence or hinder the person in discharging his or her official duties if the person is a public officer or employee.

(c)(1) A person or entity whose property is subject to a lien or encumbrance in violation of this section may petition the superior court of the county in which the person or entity resides or in which the property is located for an order, which may be granted ex parte, directing the lien or other encumbrance claimant to appear at a hearing before the court and show cause why the lien or other encumbrance should not be stricken and other relief provided by this article should not be granted.

(2) The court shall schedule the hearing no earlier than 14 days after the date of the order. The scheduled date of the hearing shall allow adequate time for notice of the hearing.”

The court may want to schedule a hearing on this issue, or may consider the continuance of the hearing on the petition on this issue to provide the required notice.

Under CCP section 765.040:

“Any lien or encumbrance claimant who records or files, or directs another to record or file, a lawsuit, lien, or other encumbrance in violation of Section 765.010 shall be liable to the person subject to the lawsuit or the owner of the property bound by the lien or other encumbrance for a civil penalty of up to five thousand dollars ($5,000).”

The petition here submits evidence showing that respondent is not a licensed contractor, and is prohibited from bringing or maintaining an action to recover compensation under Business and Professions Code section 7031(a), which provides, in pertinent part:

“no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract, regardless of the merits of the cause of action brought by the person…”

[See Petition, para. 8].

Petitioner has also shown that respondent filed a previous mechanic’s lien, and after being made aware that a previous lien was invalid as untimely, filed this duplicate lien anyway, and failed to release it upon demand. [Petition, paras. 6-10, Ex. F].

The court finds that the second lien was recorded by respondent knowing it was false, with the intent to harass petitioner. The court also finds that the first lien was clearly invalid on technical grounds.