Legal Question in Construction Law in California

Re: CA Preliminary Notice

based on your facts thus far, you can fight this by stating that the subcontractor who is now billing you was not a party to the written contract between you and the general contractor, and/or the subcontractor was not an intended 3rd party beneficiary either. however,the best thing to do at this point is to have an attorney look over your contract paperwork with the general contractor to see if there were any provisions for the subcontractor to get paid, etc...at that point, the attorney can give you the best legal strategy in asserting your rights and avoiding the mechanics lien. if you would like further assistance and/or representation on this matter, email me back promptly letting me know the basics of what your initial contract stated between yourself and the general contractor.

Re: CA Preliminary Notice

This is a small claims matter and it may be uneconomical for you to hire a lawyer to fight it. Certainly a lawyer could help you defend it, but at $200/hour and up, you'll reach $5000 real fast. You should immediately contact the Contractors State License Board and file a complaint against the contractor. The CSLB can be a bit slow at times, but they do know how to resolve these problems. Plus, it won't cost you anything.

It has been suggested that the concrete supplier is not a "third party beneficiary" of the contract and you could defend on this basis. But that argument won't work because they aren't going to sue you on a contract theory. They're going to sue you on their California Constitutional right to maintain a mechanics lien. They don't have to be a party to the contract to prevail on this theory. A better defense is to analyze whether the concrete company properly served you with the preliminary notice. They have to strictly adhere to the legal requirements for service and I frequently find that suppliers blow these requirements. This can get complex and, unfortunately, it will take a lawyer to analyze the situation. But don't hire just any lawyer if you decide to hire someone. You MUST find someone with significant construction law experience. This is a specialized field. A family law attorney can't help you. Nor can a business litigator.

Re: CA Preliminary Notice

The key issue is going to be the timing of the 20-day Preliminary Notice required by Civil Code Sec. 3097. In general, a lower-tier sub or supplier�s first step in perfecting mechanic's lien rights is service of the 20-day prelim on the property owner. As the name suggests, the sub or supplier must serve that notice within 20 days after first providing labor or material to the project. Even if they are late, the notice will relate back 20 days from the date of service, and they'll have lien rights on the labor or materials provided in that 20-day window. In other words, if they serve the notice 30 days after starting, they lose lien rights on the value of labor and material provided during the first 10 days, but retain lien rights on everything provided during the next 20 days.

Given all that, understand that the date of service of the 20 day prelim - i.e., the date you receive the notice - is the important date, not the date the notice was signed.

Thus, if the "supplier" does attempt to record a lien against your property, that supplier's lien only covers the value of materials provide in the 20 days before you received the notice. As I read the facts you've provided, you didn't receive the notice until about 45 days after the entire job was complete. If that's the case, the supplier has no enforceable lien rights, as all of the materials it claims to have supplied where provided more than 20 days after the date your received the notice.

I would write down the circumstances under which you received the notice, and keep that handy in the event the supplier actually does record a claim of lien. If the notice was, in fact, served too late, a stern letter from counsel may get them to back off.

There are other issues that you'd need to deal with if the supplier does record a lien claim. They'll have to file suit to foreclose on the lien within 90 days. If they do, you'll probably need to cross-complain against your contractor for breach of contract and indemnity.

Feel free to send some follow-up questions, and best of luck.

Now the inevitable caveat:

The foregoing information is provided as an accommodation only, and does not constitute specific legal advice or a biding legal opinion based on a comprehensive review of all relevant facts, nor can provision of such information be construed as creating an attorney-client relationship.