2017-00224275-CU-PT

Maletin, Inc. vs. Michael Faust

Nature of Proceeding: Petition for Release of Property from Mechanics Lien

Filed By: McLaughlin, H. Vincent

Petition to Release Property from Mechanic’s Lien is unopposed but is denied, without prejudice.

The proof of service filed on January 19, 2018 does not comply with Civil Code section 8486(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”].
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Petitioner, Maletin, Inc., is the owner of property located at 1672 Rosalind St. Sacramento. Respondent Michael Faust alleges that he provided labor for works of improvement on the property and also at 1081 Miramonte Ave, Los Altos, California, on or before March 5, 2016. (Ex. A Petition Mechanic’s Lien Claim)

Respondent recorded the Mechanic’s Lien Claim in the amount of $15,000 on November 13, 2017. The Verified Petition states that although the Respondent’s proof of service states that Petitioner was served with the mechanic’s lien, Petitioner never received it and discovered the lien from a third party.

The owner of 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. (Civil Code § 8480
(a).)

Civil Code Section 8412 requires that a mechanic’s lien be filed no later than 90 days following the completion of the work. Civil Code section 8412. Hence, the mechanic’s lien is untimely if it was filed more than 90 days after March 5, 2016 and is invalid on its face. Here, the Mechanic’s Lien Claim was filed more than 20 months from the date the services were provided. Therefore, it is untimely and Petitioner is not required to wait 90 days from the recording of the Mechanic’s Lien to determine if Respondent will file a Complaint to Foreclose Upon the Mechanic’s Lien under Civil Code section 8460.

CC 8486(b) requires that 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. On January 19 moving party filed a “proof of personal service” showing that Michael Faust’s wife was personally served on December 27, 2017. This is not personal service but substituted service. To serve a summons by substitute service one must first attempt personal service and thereafter serve the papers by mail. There is no declaration of diligence and no declaration of mailing accompanying the proof of service. CCP 415.20