Case Number: TC028751??? Hearing Date: May 23, 2017??? Dept: A
# 5. Baksh Construction, Ajim Baksh v. Rene Mendez, RMZ Group
Case No.: TC028751
Matter on calendar for: Motion for Order Releasing and Expunging Mechanic?s Lien
Tentative ruling:
Plaintiffs Baksh Construction, Inc. and Ajim Baksh filed a First Amended Complaint (?FAC?) on April 17, 2017. It is a form complaint (with an attachment) alleging claims for common counts, breach of contract, foreclosure of mechanic?s lien, and fraud against Defendants Rene Mendez and RMZ Group, Inc. It is not a model of clarity, but the gist appears to be that one or both Plaintiffs entered into a contract with Defendants whereby one or both Plaintiffs would build three separate buildings on three separate parcels located in the City of Compton, CA and Defendants would pay for labor and materials as invoiced. (FAC.) Defendants allegedly failed to pay for the labor and materials. (Id.) Plaintiffs have recorded mechanic?s lien claims against the parcels. (Id., Attachment, ?? 14-18.)
Presently before the Court is Defendants? April 15, 2017 motion for order releasing and expunging the mechanic?s lien. This motion seems to be Defendants? first appearance in this action, and they do not appear to have answered or otherwise responded to the FAC. Defendants also filed a May 8, 2017 Memorandum of Supplemental Points and Authorities in support of this motion. Plaintiffs filed a ?Declaration of Stanley Arouty in Opposition to Defendants Motion for an Order Releasing Mechanics Lien as Frivolous? on May 16, 2017. If the Court were inclined to hear the motion on its merits at this time, the Arouty Declaration would be untimely. But it is not so inclined.
Counsel for the parties have not fulfilled their obligations to provide useful briefing to the Court. At the hearing, the Court will provide some guidance for the future. In the meantime, the Court provides some preliminary observations.
A motion to expunge a mechanic?s lien does not constitute a response to a complaint. In other words, it is no substitute for an answer, demurrer, or other responsive pleading. So, defendants may be in jeopardy of having a default entered against them. Plaintiffs, however, never filed proof of service of the summons and complaint for the FAC. And Defendants contend they were never served. So, at the hearing, counsel should be prepared to discuss service and whether defense counsel are authorized to accept service on behalf of their clients.
Civil Code ? 8480 et seq. addresses the filing of a petition for an order from the Court to release or expunge a mechanic?s lien. Section 840 provides, in relevant part:
(a) The owner of property or the owner of any interest in 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.
(b) This article does not bar any other cause of action or claim for relief by the owner of the property. A release order does not bar any other cause of action or claim for relief by the claimant, other than an action to enforce the claim of lien that is the subject of the release order.
(c) A petition for a release order under this article may be joined with a pending action to enforce the claim of lien that is the subject of the petition. No other action or claim for relief may be joined with a petition under this article.
In other words, a property owner may bring an action for an order releasing a mechanic?s lien in the first instance if the party or parties holding the mechanic?s lien have not yet commenced an action to enforce it. Or, if an enforcement action has already been filed, a petition for a release order may be joined with the pending action. But nothing in the statute excuses a defendant in an action to enforce a mechanic?s lien from answering or otherwise responding to the complaint.
Civil Code ? 8484 imposes some procedural requirements on and prerequisites to the filing of a petition for an order releasing a mechanic?s lien. For example, it provides that such a petition must be verified, and that certain notice requirements must be complied with. The present ?motion? is not a verified petition. Accordingly, the Court strikes it. At the hearing, the Court will set a schedule for the filing of a proper petition, and a briefing and hearing schedule for the petition.
The hearing on an appropriately filed petition is supposed to take place within 30 days of filing, or on good cause shown, within 60 days. Although the statute does not specify, given the disputes in this case, resolution would appear to require an evidentiary hearing. This means, that trial counsel for the parties should appear at the May 23, 2017 hearing prepared to discuss the witnesses they will call and the exhibits they will offer at such a hearing. They also should be prepared to go into the jury room, or to the cafeteria, to work out a deposition schedule so that the witnesses can be deposed prior to the hearing if desired.
Finally, counsel should be prepared to discuss alternative dispute resolution. The prevailing party is entitled to recover attorney?s fees, so this litigation could turn out to be an expensive proposition for the losing parties.
Next dates: CMC, OSC re: failure to prosecute ? 8.23.17 – this date will be revisited on May 23, 2017.
Notice: Plaintiffs to give notice