Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Martin A. Hildreth, Judge. (Retired judge of the San Bernardino Municipal Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Reversed, Super.Ct.No. SCV 131378
Angela L. Morgan for Defendant and Appellant.
Law Firm of Gregory D. Angus and Charles W. Raymond for Defendant and Respondent.
OPINION
Gaut J.
Jenny Pineda and Maria Arichega both claimed the proceeds left from the foreclosure of Pineda’s home. Pineda was the owner of the property; Arichega claimed that she had purchased the home from Pineda before the foreclosure and that she had installed substantial improvements in the home prior to its foreclosure. The trial court awarded Pineda $16,555.31 and Arichega $20,000 from the proceeds remaining after the foreclosure. Pineda claims she is entitled to all of the proceeds.
We find that Arichega failed to perfect her mechanic’s lien by filing an action to foreclose the lien within 90 days of the day she recorded the mechanic’s lien and therefore the trial court erred by awarding Arichega any of the proceeds from the foreclosure. We reverse the judgment and direct the trial court to award Pineda all the proceeds from the foreclosure.
1. Facts
Pineda purchased the property in 2004. It was foreclosed in a nonjudicial sale dated July 27, 2005, initiated by the Recontrust Company under the deed of trust executed by Pineda. Upon completion of the sale, Recontrust deposited the excess proceeds, $36,555.31, with the San Bernardino Superior Court on February 21, 2006, and notified those with an interest in the property that there were excess proceeds from the sale. Pineda filed her request for the entire proceeds from the sale on November 18, 2005. Arichega filed her claim for $20,000 based upon a mechanic’s lien she had executed on July 12, 2005, and recorded in San Bernardino on September 15, 2005. Pineda claims she filed her claim timely under Civil Code section 2924j, subdivision (a) for the surplus proceeds of the sale, but that Arichega’s claim was untimely.
All further statutory references are to the Civil Code.
Pineda asserts that Arichega’s claim was invalid because her claim for proceeds from the sale was based upon a mechanic’s lien and under Business and Professions Code section 7031 Arichega had to be a contractor and give a 20-day notice under section 3097.1. Furthermore, Pineda claims that Arichega failed to enforce her mechanic’s lien action within 90 days of the date it was recorded, as required by section 3144.
Arichega contends that she purchased the property from Pineda, paid the mortgage through Pineda’s representative, and paid for significant repairs and improvements to the property. It was only when the foreclosure action was filed that Arichega learned that her payments had not been delivered by Pineda’s representative to the mortgagee.
The attorney for Recontrust received a copy of Pineda’s claim to the proceeds of the sale on September 22, 2005, a copy of the July 12, 2005, mechanic’s lien filed by Arichega, and Arichega’s claim for excess proceeds on September 22, 2005. Arichega claims that the trial court’s decision to distribute the $20,000 to her complied with section 2924k, subdivision (a)(3). That section authorizes the clerk of the court to distribute the proceeds to satisfy the outstanding balance of obligations secured by any junior liens or encumbrances.
2. Failure to File Claim Under Section 2924j
Pineda argues that section 2924j, subdivision (d) required Arichega to file a claim by May 8, 2006, for a May 23, 2006, hearing before the superior court and that Arichega’s claim was not filed until May 16, requiring denial of the claim. Pineda misstates the requirement of section 2924j. It requires the trustee give notice of the proceeds remaining after the trustee’s sale and requires the interested parties to state the amount of their claim within 30 days of the date of the notice. In the event the trustee cannot determine the priority of the claims within 90 days of the 30-day notice, the trustee must deposit the money with the clerk of the court. Prior to depositing the funds with the court, the trustee must send a written notice to all persons with recorded interests in the real property notifying them that they must file claims for the funds within 30 days from the date of the notice. The statute requires the court to consider all claims filed within 15 days of the date of the scheduled hearing.
The trustee deposited the money from the foreclosure with the court on February 21, 2006. Although section 2924j requires the trustee to send written notice to all persons of its intention to deposit the funds with the clerk of the court and that notice was given on October 21, 2005, for some unknown reason the court refused to accept the deposit until March 22, 2006.
Section 2924j requires the court to consider all claims submitted 15 days prior to the hearing. The trial court set the hearing for May 23, 2006. Pineda filed her claim on March 11, 2006, and Arichega filed her claim on May 16, 2006. Section 2924j, subdivision (d) provides that the “court shall consider all claims filed at least 15 days before the date on which the hearing is scheduled.” Although section 2924j requires the trial court consider all claims filed within 15 days of the hearing, the trial court properly concluded that requirement was not jurisdictional and therefore did not preclude the trial court’s discretion to hear claims filed less than 15 days before the hearing. The trial court properly exercised its discretion to hear the claims of Arichega.
3. Failure to File Timely Mechanic’s Lien
Pineda denies the validity of Arichega’s mechanic’s lien on a variety of grounds, each of which we will consider separately.
Pineda asserts that Arichega did not comply with Business and Professions Code section 7031, subdivision (d). That section applies to a person engaging in the business or acting in the capacity of a licensed contractor. There is no claim or evidence that Arichega was acting in that capacity. A person working on his own property is not a contractor within the meaning of Business and Professions Code section 7031, subdivision (d). (People v. Moss (1939) 33 Cal.App.2d 763, 765.)
Another issue presented by Pineda is Arichega’s failure to comply with the mechanic’s lien requirements. Section 3110 provides that one performing labor or services on a work of improvement shall have a lien upon the property upon which he or she bestowed labor or materials. Arichega’s lien claim specifically provided that she provided materials to Jenny Pineda, the owner of the property, consisting of cement, paint foam, windows, tile, 2 x 4 wood, plumbing, toilet seats, drywall, lights, air vent, water lines, 2 x 4 x 2 insulation, color stucco, an electric box, a phone box, and a cable box.
Pineda also claims that Arichega erred in failing to file a 20-day preliminary notice under section 3097. That section provides that a 20-day written notice must be given by a mechanic’s lien claimant prior to filing the stop notice. That provision is inapplicable. The statute expressly provides that the requirement is not required for one under direct contract with the owner. In this case, Arichega contends that her contract was directly with Pineda.
Arichega’s lien complied with section 3084, subdivision (a) because it set forth her demand, the name of the owner, a general statement of the labor and materials furnished, and the name of the person to whom she provided the labor and materials.
Arichega’s claim does not comply with section 3144, however, because she failed to foreclose her mechanic’s lien within 90 days after her September 15, 2006, claim of lien was recorded. Her action should have been filed in San Bernardino County by December 15, 2005. There is no evidence that Arichega filed such an action. As a result, Arichega’s lien expired and is not enforceable against the property. (§ 3144, subd. (b); Koudmani v. Ogle Enterprises, Inc. (1996) 47 Cal.App.4th 1650, 1657; see also West Coast Development v. Reed (1992) 2 Cal.App.4th 693,700.) Even though the 90-day statutory period bars the foreclosure, it does not discharge the debt. (Peterson v. W.T. Grant Co. (1974) 41 Cal.App.3d 217, 221-222.) Arichega retained the right to maintain a personal action against Pineda. (§ 3152.)
The trial court erred when it granted Arichega’s claim lien even though Arichega failed to comply with the 90-day mechanic’s claim requirement. The trial court could not toll the relevant 90-day statute and it therefore erred in granting Arichega’s claim based upon the expired mechanic’s claim.
4. Disposition
The judgment is reversed. The trial court is ordered to disburse all of the proceeds remaining from the foreclosure to Pineda. Pineda is entitled to her costs upon appeal.
We concur:
s/Richli, Acting P. J., s/Miller J.