Case Number: 17K00150 Hearing Date: January 17, 2018 Dept: 77

Petitioners Jose A. Ferrer and Antonio Ferrer’s Petition for Release of Property From Mechanic’s Lien is denied without prejudice.

Petitioners have been provided numerous opportunities to comply with the court’s prior orders regarding their Petition for Release of Mechanic’s Lien, yet failed to do so.

This matter was initially set for hearing on April 12, 2017. At that time, the court continued the hearing to May 15, 2017 on the grounds that the proof of service of the Petition, filed on March 13, 2017, did not demonstrate personal service on Respondent, or diligence for purposes of substitute service. Petitioners were ordered to file a proof of service demonstrating proper personal or substitute service of the Petition on Respondent by May 1, 2017. Petitioners were further ordered to give notice of the new hearing date and file proof of service of the same by May 1, 2017.

At the continued hearing on May 15, 2017, the court found that the declaration of diligence filed by Petitioners on May 1, 2017 established that service had not actually been effected. The court again continued the hearing to June 26, 2017 and ordered Petitioners to file proof of service of the Petition and notice of the hearing by June 5, 2017. The court ruled that failure to timely file the proof of service and notice of new hearing date by June 5, 2017 would result in the Petition being placed off calendar, or denied outright.

As of June 16, 2017, no additional papers had been filed by Petitioners. On June 20, 2017, Petitioners filed a proof of service that lists a “Notice of Continued Hearing on Petition for Release of Property from Lien” as one of the documents served on Respondent. However, Petitioners had not filed a copy of the Notice of Continued Hearing itself, so the court was unable to verify whether Respondents received notice of the continued June 26, 2017 hearing date.

At the hearing on June 26, 2017, the court continued the hearing for the Petition for Release of Property from Mechanic’s Lien to September 20, 2017. The court ordered Petitioners to give notice of its order and the continued hearing date, and to file both the notice of continued hearing and proof of service of such no later than 16 court days prior to the new hearing date, i.e., by August 28, 2017. The court further ruled that it would not consider late filed papers.

On July 14, 2017, Petitioners filed a Notice of Continued Hearing on Petition for Release demonstrating that notice of the continued hearing date had been provided to Respondent on that date, by regular mail. This is insufficient for service of the hearing date, pursuant to Civil Code section 8486(b), which requires service of the “notice of hearing on the claimant . . . 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.” (Cal. Civil Code § 8486(b).)

At the September 20, 2017 hearing, the court found that Petitioners had again failed to demonstrate that notice of the hearing date was provided to Respondent in the manner required under the moving statute. The court additionally ruled that it had concerns about whether it still retained jurisdiction to rule on the instant petition, pointing out that:

California Civil Code § 8486(a) provides, in relevant part, “[t]he court may continue the hearing [on the petition to release a mechanic’s lien] 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.” Civil Code § 8486(a). Given the multiple delays in this case necessitated by Petitioners’ failure to effect service in a manner compliant with California Civil Code § 8486(b), the hearing on the petition has been continued multiple times, well beyond 60 days after filing of the petition.

(Order, dated 9/20/17.) The court continued the hearing to the instant hearing date of January 17, 2018 and ordered Petitioners to do the following: (1) file and serve briefing regarding the court’s authority to rule on the petition beyond the original 60 period set forth in Civil Code § 8486(a) by December 18, 2017; (2) give notice of the order and the continued hearing date in a manner compliant with California Civil Code § 8486(b); and (3) file the notice of continued hearing and proof of service of such by December 18, 2017. The court warned that it would not consider late-filed paper, which would result in the petition being denied without prejudice.

Petitioners have not complied with the court’s September 20, 2017 order. The only document filed by Petitioners since the last hearing date was a proof of service filed on December 5, 2017. The proof of service states that the notice of continued hearing date, petition and proposed order were sub-served on Respondent on November 13, 2017 and mailed to the address where service was effectuated. (POS, filed 12/5/17.) However, Petitioners did not filed the notice of continued hearing itself. Furthermore, Petitioners have not filed any briefing regarding the court’s authority to rule on the petition beyond the original 60 period set forth in Civil Code § 8486(a).

Accordingly, Petitioners have not complied with significant portions of the court’s September 20, 2017 order. Per that order and the numerous warnings provided to Petitioners regarding failure to comply with the court’s instructions, the Petition for Release of Property From Mechanic’s Lien is denied without prejudice.