Legal Question in Construction Law in California

Re: Bad Flooring Installation

You're going to have to defend the lawsuit. He says that he did it right and wants to be paid. You'll be saying the opposite. If you really need the lien off right now, you can bond around the lien.

Re: Bad Flooring Installation

If a suit in Superior Court to foreclose on the lien is not filed within 90 days of recording the lien, then you can demand that he remove it. If he does not, then a petition for decree of release of lien can be filed in Superior Court. A Small Claims action is for money only and is not considered a suit to foreclose on the lien, thus, the Small Claims suit is irrelevant to the mechanic�s lien. If you are trying to refinance or sell, then you can obtain a lien release bond. Otherwise, you can wait out the 90 days.

You should defend the Small Claims action with credible evidence. In addition to what you have for evidence, you should obtain a quote from another C-15 contractor (or two) showing what exactly has to be done to repair the defects and how much it will cost. If it costs less to repair than what you owe on the contract, then you may get a judgment against you.

You can also file a complaint against his license bond. Information on who his license bond company is can be found on the Contractors State License Board website (http://www.cslb.ca.gov/) by looking up the contractor's license number. You can also file a complaint with the Contractors State License Board.

If it costs more to fix than what you owe on the contract, then you probably should have a brief consulation with an attorney in your area to see what your options are.

Re: Bad Flooring Installation

You present two issues - first, with respect to the mechanic's lien and, second, with respect to the small claims action. The small claims action will not go to foreclose the mechanic's lien. To be validly foreclosed, the mechanic's lien action has to be in Superior Court. Further, the contractor would have had to provide you a 20-day preliminary notice of his right to protect his lien rights (you can check your file for this; without having it sent to you, he cannot file a lien action). IF he has filed a lien, he has to file the Superior Court action within 90 days to foreclose. If he doesn't, he loses his rights and the lien can be removed. If he has filed the lien without having provided a 20-day preliminary notice, you can close out his rights by asserting the improper filing of the lien in your response. Best to wait the 90 days and then remove the lien unless you are selling the property or refinancing a mortgage, etc. (then you should bond around the lien).

As to the small claims action, that would be for money damages only. The action comes down to whether the contractor abided by the contract between you. You will have to defend this action to prevent a judgment being taken against you. Your inspector report, photos, etc. would be helpful, but you should get a quote from another licensed flooring installer for the cost to you of break-out and re-do of non-conforming work (those are your damages in the case).

You should likely check with a construction lawyer regarding the set-up of your small claims defense.

Re: Bad Flooring Installation

I agree with Ms. Scholefield and would only add that if the difference between what you owe and the cost of correcting the bad work is in your favor, but relatively small (say under $5,000), you may want to consider filing a defendant's counterclaim in the small-claims court. See Code of Civil Procedure section 116.360, especially part (c) relative to time limits.

I disagree with the theory that the contractor's failure to file a 20-day notice is a solid defense. There are too many exceptions to the notice requirement, and I think your situation is one of them (direct contract).

In any event, you must defend the small-claims action. Whether or not it affects the mechanic's lien, and it doesn't, failure to defend will result in a judgment which, if not paid, would result in a worse kind of lien -- a judgment lien.