Legal Question in Construction Law in California

Re: Attorney harassing me

Attorney representation is suggested. As written I am not sure under what causes of action you are being sued under in Superior Court. Did the subcontractor file a mechanics lien on your property and you are being sued to foreclose the lien?

In addition the subcontractor can not sue you for a breach of contract type of theory in this case because there is not "privity of contract".

I am assuming that you are being sued to foreclose on the mechanics lien.

If a mechanics lien has been filed on your property by the attorney or the subcontractor you may have some recourse under the law. A mechanics lien can not be filed by the subcontractor unless you received a proper 20-day preliminary mechanics lien notice. Because you indicated you had no notice I assume you did not receive a 20-day preliminary lien notice so any lien and lawsuit to foreclose on the lien is invalid.

First I would check with the Contractors State Board and make sure the subcontractor is properly licensed and was properly licensed at all times when he claims he worked on your property. California Business and Professions Code �7031 prohibits a contractor from suing to recover compensation unless the contractor was duly licensed �at all times during the performance of [the] act or contract."

Also in the case of MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Company, Inc., 36 Cal.4th 412 (2005). the CA Supreme Court ruled that if the contractor lets his license lapse during construction "at any time" so that he is not "properly licensed" (Licensed and in the correct classification) at all times that the contractor could not recover any damages.

Next I would examine the complaint and determine what causes of action your company is being sued under. You may write a letter to the attorney or subcontractor stating 1) that you had no notice of the subcontractor's work, 2) that any mechanics lien is a false lien and should be removed, and 3)that you dispute the claim. However, I caution you that this letter can be used against you.

If a false mechanics lien has been filed on your property then you can ask to have it removed and file a petition to remove it in court and recover up to $2000.00 in attorney fees (Ca Civ Code 3154(g))

In addition if a false lien was filed then the lien claimant subcontractor may forfeit all of his lien rights. (Ca Civ Code 3118)

Another avenue that may possibly be pursued is through the Federal Fair Debt Collection Practices Act (FDCPA) and related state statute for filing a false debt claim against you through the letter of demand. If the attorney wrote you a demand letter and did not have specific statutory items required under the FDCPA in the letter then he is strictly liable for statutory damages. In addition attorney fees are mandatory under the FDCPA claim.

Please contact me if you need further assistance.

Re: Attorney harassing me

Under the circumstances you describe, the subcontractor's sole remedy is a Mechanic's Lien. In order to establish this right, the Sub should have sent you a "Preliminary Notice" which wolld be effective 20 days retroactive; if the sub has done no work in the last 20 days, it is too late to send the notice. I have a "brief" which I have prepared to present to the small claims count; it would need to be revised slightly by you to fit the facts and court information. If you want me to fax you a copy, please send me an e-mail with your fax number.

Best of luck

E. Leonard Fruchter