Petition by ANTHONY SHERWIN DONAHUE and DONAHUE DONAHUE DONAHUE LLC to Release Mechanic’s Lien
Case No. CL26-06563
Petition by ANTHONY SHERWIN DONAHUE and DONAHUE DONAHUE DONAHUE LLC to Release Mechanic’s Lien
Civil Code §8480 authorizes the filing of a petition for an order releasing property from a recorded mechanic’s lien claim, by “[t]he owner of property or the owner of any interest in property”.
The petition filed in this limited jurisdiction case identifies two different petitioners, without any specificity as to which owns what ownership interest in the subject property.
A petition for release order can be filed as a new action, before and/or without any pending action to foreclose the mechanic’s lien.
However, a petition noticed for hearing is considered to be a motion.
C.C.P. §1003 clarifies that “An application for an order is a motion”.
One requirement for any motion filed in Solano County is that the notice of motion advise of the court’s tentative ruling system. Solano County Local Rule 3.9(d).
No mention of the tentative ruling system appears in the notice of hearing filed for this petition.
A petition for release of a mechanic’s lien must also “allege” an array of detailed information, and be “verified”. Civil Code §8484.
A petition for a release order shall be verified and shall allege all of the following:
(a) The date of recordation of the claim of lien. A certified copy of the claim of lien shall be attached to the petition.
(b) The county in which the claim of lien is recorded.
(c) The book and page or series number of the place in the official records where the claim of lien is recorded.
(d) The legal description of the property subject to the claim of lien.
(e) Whether an extension of credit has been granted under Section 8460, if so to what date, and that the time for commencement of an action to enforce the lien has expired.
(f) That the owner has given the claimant notice under Section 8482 demanding that the claimant execute and record a release of the lien and that the claimant is unable or unwilling to do so or cannot with reasonable diligence be found.
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(g) Whether an action to enforce the lien is pending.
(h) Whether the owner of the property or interest in the property has filed for relief in bankruptcy or there is another restraint that prevents the claimant from commencing an action to enforce the lien.
Legal description of a real property typically refers to recorded maps and provides metes and bounds surveying descriptions of boundaries. See, e.g., Lee v. Fidelity National Title Ins. Co. (2010) 188 Cal.App.4th 583, 588 n.1.
The subject petition did not provide a metes and bounds legal description, nor was any verification provided.
Finally, for a mechanic’s lien whose claim amount exceeds $35,000, the verified petition must be filed as an unlimited jurisdiction case, not as a limited jurisdiction case. C.C.P. §86(a)(6) provides:
The following civil cases and proceedings are limited civil cases:
...
(6) An action to enforce and foreclose, or a petition to release, a lien arising under Chapter 4 (commencing with Section 8400) of Title 2 of Part 6 of Division 4 of the Civil Code, or to enforce and foreclose an assessment lien on a common interest development as defined in Section 4100 or 6534 of the Civil Code, if the amount of the liens is thirty-five thousand dollars ($35,000) or less. However, if an action to enforce the lien affects property that is also affected by a similar pending action that is not a limited civil case, or if the total amount of liens sought to be foreclosed against the same property aggregates an amount in excess of thirty-five thousand dollars ($35,000), the action is not a limited civil case.
The mechanic’s lien amount claimed in the recorded mechanic’s lien was $42,935.00. Thus, the court has no jurisdiction in this limited jurisdiction filing to grant any petition for release of this mechanic’s lien.
For all of these reasons, this petition is denied, without prejudice to filing a proper and complete verified petition in an unlimited jurisdiction case.
DEBRA YANCY vs. 1527 SPRINGS ROAD, LLC; ET AL.