Legal Question in Construction Law in California

Owner wont pay

My husband and I own an iron shop in which we specialize in spiral stair cases. approx. 45 (max) days ago two of our employees installed a stair for a home owner. While preparing to take the stair into the house our Job Foreman was approached by owner and asked how he was going to get the stair in the house. The employee told the woman that his instructions were to cut the stair in three pieces to bring it in. This is a very common procedure that was previously explained to the customer by my husband. After hearing the plan the home owner demanded that our guys not cut the stair rather carry it through the front door in one piece in fear of damage to the stair. Our guys followed the owners instructions and completed the job the customer appeared to be very happy with her stair. When given the invoice the customer claimed she gad the wrong check book and that she would mail the check in. She promised the same with the deposit and never sent it. After not receiving a payment my husband contacted the owner it was then that we were informed of an apparent scratch in a window frame. The customer sent a payment withholding $1000.00 followed by a $1600.00 estimate to fix window. No Cert of Completion involved. Can/should we file a Lien.


Asked on 1/25/06, 7:25 am

3 Answers from Attorneys
Philip Iadevaia Law Offices of Philip A. Iadevaia

Re: Owner wont pay

First make sure your employees did not cause the damage. If they did, make sure the cost of the damage does not exceed what the owner owes you. If it all falls in your favor, take the owner to the small claims court. Good luck.

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Answered on 1/25/06, 11:45 am
Gary Redenbacher Redenbacher & Brown, LLP

Re: Owner wont pay

I don't agree entirely with Mr. Starrett. There is no law that prevents you from foreclosing a lien in small claims court. I have clients that do it routinely in our county. I admit, however, that small claims court judges differ and could become confused when faced with the issue.

There is a further suggestion by Mr. Starrett that if your employees scratched the window, then you are entirely liable. I don't agree with this. If the owner contributed to the difficulty of bringing the stairs in and, thus, increased the likelihood of damaging the interior of the house then they are also negligent. Their negligence should be taken into consideration by the judge.

If you aren't too late (90 days after substantial completion in most cases), record a lien and then immediately foreclose by going to small claims court.

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Answered on 1/25/06, 11:53 am
Carl Starrett Law Offices of Carl H. Starrett II

Re: Owner wont pay

You did not mention whether your employees actually caused the damage to the window frame. In my opinion, it doesn't matter if the owner instructed your employees to use a different method of installation. If they caused the damage, then you are responsible.

Even if they didn't cause the damage, this is a small claims court issue. Filing a mechanic's lien would be of little value because it would expire in 90 days if you didn't file a line foreclosure lawsuit and you couldn't do that in small claims court.

If you go to small claims court, be prepared to dispute the owner's cost of repair estimate.

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Answered on 1/25/06, 8:39 am


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