Legal Question in Construction Law in California

Re: Willfully false mechanics liens

As you probably know, not all mechanic's liens require a preliminary notice, i.e. where the contractor is in direct privity with the owner. As a consequence, a lien is not necessarily invalid just because there was no 20-day notice, and therefore the recorder will not expunge them nor is there any other way to remove them except through a court's determination and order, or by their expiration without further action by the claimant.

I would start with negotiation. Find out what this guy's theory is. If you remain convinced that the liens are invalid, remind his that he may lose his entire liens and also be liable to you for damages if he persists. You might want to look up a case called Burton v. Sosinsky, 203 Cal.App.3d 562, in which contractors who filed fraudulent liens were held liable for the owner's damages. I think punitive damages could also be sought successfully if the filings were truly malicious and not merely stupid.

Re: Willfully false mechanics liens

Unfortunately, you will have to have the liens removed per court order. Call me directly at (619) 222-3504.

Re: Willfully false mechanics liens

I agree with Mr. Whipple to first try some negotiations. Often, a contractor will listen to reason especially if it is pointed out that their actions could eventually cost them money.

Keep the act of recording a lien separate from the act of foreclosing on the lien. The act of recording a lien is privileged. This is likely so even if the recorded lien is fraudulent. If, however, a contractor forecloses on a lien he knows to be fraudulent, then he can get himself into hot water as shown in the Sosinsky case.

There is a fairly quick procedure for getting rid of liens are definitely unenforceable. This procedure won't work if the guy has a legitimate claim, of coure. Also, you're entitled to some limited attorney's fees if you prevail. This threat of attorney's fees is often enough to get the other guy to back down. Since many contractors record a lien just to get leverage, even when they know that the lien is no good, this threat of the lien backfiring on them will often work...at least in my experience.

If the guy didn't serve any 20 day notices, and he didn't have a direct contract with the owner, he's a candidate for getting his liens wiped out by the summary procedure. Find a lawyer who's done these procedures before. An experienced attorney should be able to do one of these for around $2000, maybe less.

Re: Willfully false mechanics liens

The procedure for a decree to release the property from the lien is in Civil Code section 3154. If the contractor does not file a suit to foreclose on the liens within 90 days of recording it, then the property owners can use the procedure to petition the court for a decree to release the liens. After the 90 days has expired, they should demand in writing that the liens be released. If he is unwilling to release them, then they can file the verified petitions and get up to $2000.00 in attorneys fees for each petition filed, plus costs of filing, as a judgement against the contractor. Any attorney who does this type of work should be able to do each petition for at or under the $2000.00. Once the judgments are issued, then the CSLB can be advised and they will suspend the license if the judgment is not paid within 90 days.