Legal Question in Construction Law in California

Re: Job Abandonment

Let me add a few thoughts that benchmark off the sound advice of Mr. Whipple and Mr. Johnson. The primary means to gain a prejudgment lien would be through a writ of attachment. You would have to file suit and either concurrently or shortly thereafter, file and serve the pleadings for a writ of attachment, i.e. a lien that allows you to tie up the defendant's assets. You don't get the assets, but the defendant loses access to such assets, such as a bank account.

Unfortunately, pursuing a writ of attachment can be expensive, and requires much investigation to locate the assets which you would hope to attach. Although it may induce settlement, it often can drive a defendant into bankruptcy. It sounds as if your contractor is in dire financial straits to begin with. Attachment might be the straw that breaks that camel's back.

From what you've written it sounds like your best bet is to make demand and then file suit in the appropriate court. And, as Mr. Johnson mentioned, you should certainly make demand on the pool contractor's license bond surety. The bond amount for a swimming pool contractor is $10,000.00. You need to show the license bond surety that your contractor has violated one or more of the disciplinary provisions of the Contractors License Law. Those violations are what trigger the surety's liability on the bond. What you've described suggests violations of at least two disciplinary provisions.

An attorney who deals with construction law should be able to help prepare a comprehensive demand in short order. If you want to do it yourself, you need to emphasize that the contractor has abandoned the project. Also, if you paid the contractor moneys that should have covered billings from the pebble texture subcontractor, your contractor's failure to pay is probably another violation of the disciplinary provisions. You can find your contractor's license bond surety by checking your contractor's license status at http://www2.cslb.ca.gov/CSLB_LIBRARY/license+request.asp.

Often times a well prepared and determined demand on the license bond surety will provide results. The surety will often pressure the contractor to make good if the claim is valid. If the surety makes a justified payment on a claim, the contractor's license canot be reissued or reinstated until the contractor reimburses the surety. That can be a potent weapon for you.

You should also take a careful look at the lien that's been recorded and the surrounding circumstances. The subcontractor has to comply with certain processes to be able to enforce the lien claim. Again, a reasonably experienced construction lawyer can help you determine fairly fast if the lien claim is enforceable, and the steps you need to take to protect yourself.

Best of luck.

Re: Job Abandonment

One more (final?) thought. On most large construction jobs, the owner will require the contractor to post a 'completion bond' for thr particular project. These and similar job-specific bonds name the specific owner as the indemnitee and recite particulars of the job such as contract amount and completion date. An owner can then make a claim on the surety, usually without the necessity of going to court. This system is, I guess, considered unnecessarily complex for smaller residential jobs which, also, have tougher statutory and case-law protections. In the latter cases, the contractor's blanket bond is assumed by tradition to be adequate.

Re: Job Abandonment

It is sometimes possible to get a pre-judgment lien, but as a practical matter your recourse is (after written demand and other reasonable attempts to settle) to file a suit in either superior court or small-claims court depending upon the dollar size of your claim.

The contractor's right to file a mechanic's lien is expressly set forth in the California constitution and there is no equivalent right given to owners whose contractors do not perform.

Re: Job Abandonment

You probably need a judgment first--this is also usually true for collecting against any bond the contractor may have (check with the contractor's state license board for bond details).