It sometimes happens that a contractor or material supplier records a mechanics lien on your property that becomes expired. Other times, the mechanics lien may be wrong, invalid and unenforceable for some reason, serving no legitimate purpose. The contractor or material supplier may be reasonable and release the mechanics lien once these issues are brought to its attention, but the contractor or material supplier may very well refuse to release the mechanics lien when requested. When this happens, what are your options?
In California, there are various ways to bring this type of mechanics lien to a court’s attention in the hopes that the court will cause it to be released. Three of the more common methods are: (1) a petition under California Civil Code (“CCC”) § 8480; (2) a petition under California Code of Civil Procedure (“CCP”) § 765.010; or (3) a Lambert motion. This article will briefly discuss each of these methods.
Petition for Release of Mechanics Lien Under CCC § 8480:
While the process to petition a court for the release of a mechanics lien under CCC § 8482 is typically the most straightforward, this method may only be used to release an expired mechanics lien. Because a mechanics lien must be foreclosed on within 90 days of the date it was recorded (see CCC § 8460), the property owner must wait at least 91 days before beginning this process.
The property owner’s first step in this process is to serve notice on the contractor or material supplier claiming the mechanics lien (“Claimant”), giving the Claimant ten days to execute and record a release of the mechanics lien. (CCC § 8482.) Once these ten days have elapsed, the property owner may file a petition with the court, requesting release of the mechanics lien. (CCC § 8484.) With this petition, the property owner must file a certified copy of the mechanics lien with the court. (CCC § 8484(a).) Due to the length in processing time at most recorder’s offices, it is recommended that the request for the certified copy of the mechanics lien be submitted to the county recorder’s office even before the 10-day demand is served on the Claimant.
Once the court has received the property owner’s petition, the court shall set a hearing date within 30 days of the filing. (CCC § 8486(a).) At this hearing, the property owner will ask the court to release the mechanics lien and award the attorney’s fees incurred in seeking its release. If the proper procedure has been followed, the court should issue an order releasing the mechanics lien and (hopefully) awarding attorney’s fees. The property owner should then record the order with the recorder’s office to effectuate a release of the mechanics lien. While there are various judgment collection tools, if the claimant refuses to pay the attorney’s fees award and is a licensed contractor or subcontractor, the property owner may register the court order with the Contractors State License Board (“CSLB”) requesting that the contractor’s license be suspended until the judgment is paid. Utilizing the CSLB in this way is a very powerful tool.
Petition for Release of Mechanics Lien Under CCP § 765.010:
Unlike the petition under CCC § 8480, a petition brought under CCP § 765.010 may be brought immediately, without waiting for the 90 days to foreclose on a mechanics lien to expire. This petition, however, may only be used where the contractor or material supplier knows that the mechanics lien is false, but records it anyway with the intent to harass the property owner. Although this may seem like a high burden, these requirements are often easily met with some of the defects commonly seen with mechanics lien. This may include: (1) willfully including amounts due for labor, service, equipment or materials not actually furnished to the property (see CCC § 8422); (2) recording a mechanics lien outside of the recording deadline (see §§ 8412, 8414); or (3) recording a mechanics lien after the Claimant provides an unconditional waiver and release on final payment without exception (see § 8138), to name just a few. Whether or not the Claimant was aware of these defects when it recorded the mechanics lien, the requirement is satisfied where the mechanics lien is maintained after being notified of such defects.
Within the CCP § 765.010 petition, a property owner may request that the court issue an order releasing the mechanics lien, awarding the property owner attorney’s fees and costs, and seeking a penalty up to $5,000. (CCP §§ 765.010(c), 765.030, 765.040.) To accelerate the procedure with the CCP § 765.010 petition, a property owner may move the court ex parte for an order that sets the hearing date on the petition fourteen days from the date of the ex parte order and allowing time to for proper notice to the Claimant. (CCP § 765.010(c).)
If the court finds that the Claimant violated CCP § 765.010, the court will issue an order releasing the mechanics lien and (hopefully) awarding attorney’s fees and costs, as well as a penalty. As discussed in the previous section, the property owner should then record the order with the recorder’s office to effectuate a release of the mechanics lien and seek to collect on the monetary award as applicable.
Lambert Motion:
A Lambert motion may be filed by a property owner after a Claimant files a lawsuit to foreclose on its mechanics lien. (Lambert v. Superior Court (1991) 228 Cal.App.3d 383.) In other words, the property owner must wait up to 90 days after the mechanics lien has been recorded and the corresponding lawsuit is served to challenge the mechanics lien. Once served with the lawsuit, the property owner may respond to the lawsuit and file a Lambert motion which essentially asks the court to determine the probable invalidity of the mechanics lien, ultimately ruling that no mechanics lien exists. (Howard S. Wright Const. Co. v. Superior Court (2003) 106 Cal.App.4th 314.) With the request to invalidate the mechanics lien, it is good practice to include a request for the removal/expungement of the lis pendens in the Lambert motion, as the lis pendens is a recorded instrument that notifies third parties that the property is subject to a lawsuit.
The evidence to be produced in conjunction with the Lambert motion is typically more extensive than that required for either of the petitions discussed above, and the Claimant will need to prove that its mechanics lien is more likely than not valid. (CCP § 405.32.) If the Claimant fails to prove that its mechanics lien is probably valid, then the court may issue a judgment in favor of the property owner that, upon recordation, will remove the mechanics lien, and (hopefully) award reasonable attorney’s fees and costs.
Although it may seem overwhelming when a mechanics lien is recorded against your property, there are options available to remove it under certain circumstances. To determine if one of these options will work for you, it is advisable to consult with an experienced construction law attorney.
Article by Hannah C. Kreuser, Esq., in 2022. Ms. Kreuser is part of Porter Law Group, Inc. in Sacramento, California. www.porterlaw.com.
