BILL NUMBER: AB 456	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 21, 2011
	AMENDED IN ASSEMBLY  APRIL 12, 2011
	AMENDED IN ASSEMBLY  MARCH 17, 2011

INTRODUCED BY   Assembly Member Wagner

                        FEBRUARY 15, 2011

    An act to amend and repeal Section 1281.5 of the Code of
Civil Procedure, relating to arbitration.   An act to
amend Sections 3084 and 8416 of the Civil Code, relating to mechanics
liens. 



	LEGISLATIVE COUNSEL'S DIGEST


   AB 456, as amended, Wagner.  Arbitration: mechanics
  Mechanics  liens. 
   The California Constitution gives workers the right to a mechanics
lien for the value of labor and materials provided for the
improvement of real property, and authorizes the Legislature to
provide for the speedy and efficient enforcement of these liens.
Existing law requires a claim of mechanics lien to be served on the
owner or reputed owner of the property in order to be valid, and
requires a proof of service affidavit to show the name of the person
upon whom the mechanics lien was served.  
   This bill would clarify that the affidavit is required to show the
name of the owner or reputed owner of the property.  
   Existing law requires a court in this state, upon motion of a
party to an action or proceeding, to stay an action or proceeding if
another court has issued an order to arbitrate a controversy that is
also an issue pending before the state court until the arbitration is
conducted. A state court is also required to stay an action if an
application has been made in another court for an order to arbitrate
a controversy until the other court determines whether to issue an
order to arbitrate and, if the court issues an order to arbitrate,
until the arbitration is conducted.  
   Existing law provides that, in an action to record and enforce a
mechanics lien, a person does not waive any right of arbitration if
the person takes certain measures, including filing and serving a
motion to stay the action pending arbitration within 30 days, as
specified.  
   This bill would authorize the claimant to make a motion to stay
the action pending arbitration even if an application for an order to
arbitrate has not been filed, unless a party opposes the motion and
the court makes certain findings.  
   Existing law specifies that a defendant's failure to file a
petition to arbitrate is a waiver of his or her right to arbitrate.
 
   This bill would specify that the defendant's failure to either
file the petition or to demand arbitration pursuant to an agreement
constitutes a waiver of his or her right to arbitrate. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 3084 of the   Civil
Code   is amended to read: 
   3084.  (a) "Claim of lien" or  "mechanic's  
"mechanics  lien" means a written statement, signed and verified
by the claimant or by the claimant's agent, containing all of the
following:
   (1) A statement of the claimant's demand after deducting all just
credits and offsets.
   (2) The name of the owner or reputed owner, if known.
   (3) A general statement of the kind of labor, services, equipment,
or materials furnished by the claimant.
   (4) The name of the person by whom the claimant was employed or to
whom the claimant furnished the labor, services, equipment, or
materials.
   (5) A description of the site sufficient for identification.
   (6) A proof of service affidavit completed and signed by the
person serving the Notice of  Mechanic's  
Mechanics  Lien pursuant to subdivision (c). A "proof of service
affidavit" is an affidavit of the person making the service, showing
the date, place, and manner of service and facts showing that the
service was made in accordance with this section. The affidavit shall
show the name and address of the  person or persons
  owner or reputed owner  upon whom a copy of the
 mechanic's   mechanics  lien and the
Notice of  Mechanic's   Mechanics  Lien was
served, and, if appropriate, the title or capacity in which 
he or she   the owner or reputed owner  was
served.
   (7) The following statement, printed in at least 10-point boldface
type. The letters of the last sentence shall be printed in uppercase
type, excepting the Internet Web site address of the Contractors'
State License Board, which shall be printed in lowercase type:
NOTICE OF MECHANIC  '  S LIEN
   
ATTENTION!


   Upon the recording of the enclosed  MECHANIC'S 
 MECHANICS  LIEN with the county recorder's office of the
county where the property is located, your property is subject to the
filing of a legal action seeking a court-ordered foreclosure sale of
the real property on which the lien has been recorded. That legal
action must be filed with the court no later than 90 days after the
date the  mechanic's   mechanics  lien is
recorded.
   The party identified in the  mechanic's  
mechanics  lien may have provided labor or materials for
improvements to your property and may not have been paid for these
items. You are receiving this notice because it is a required step in
filing a  mechanic's   mechanics  lien
foreclosure action against your property. The foreclosure action will
seek a sale of your property in order to pay for unpaid labor,
materials, or improvements provided to your property. This may affect
your ability to borrow against, refinance, or sell the property
until the  mechanic's   mechanics  lien is
released.
   BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU MAY WISH TO SPEAK WITH
YOUR CONTRACTOR IMMEDIATELY, OR CONTACT AN ATTORNEY, OR FOR MORE
INFORMATION ON  MECHANIC'S   MECHANICS 
LIENS GO TO THE CONTRACTORS' STATE LICENSE BOARD WEB SITE AT
www.cslb.ca.gov.

   (b) A  mechanic's   mechanics  lien or
claim of lien in otherwise proper form, verified and containing the
information required by this section shall be accepted by the
recorder for recording and shall be deemed duly recorded without
acknowledgment.
   (c) (1) The  mechanic's   mechanics 
lien and the Notice of  Mechanic's   Mechanics
 Lien described in this section shall be served on the owner or
reputed owner. Service shall be made as follows:
   (A) For an owner or reputed owner to be notified who resides in or
outside this state, by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the owner or reputed owner at the owner's or
reputed owner's residence or place of business address or at the
address shown by the building permit on file with the authority
issuing a building permit for the work, or as otherwise provided in
subdivision (j) of Section 3097.
   (B) If the owner or reputed owner cannot be served by this method,
then the notice may be given by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the construction lender or to the original
contractor.
   (2) Service by registered mail, certified mail, or first-class
mail, evidenced by a certificate of mailing, postage prepaid, is
complete at the time of the deposit of that first-class certified or
registered mail.
   (d) Failure to serve the  mechanic's  
mechanics  lien, including the Notice of  Mechanic's
  Mechanics  Lien, as prescribed by this section,
shall cause the  mechanic's  mechanics 
lien to be unenforceable as a matter of law.
   SEC. 2.    Section 8416 of the   Civil Code
  is amended to read: 
   8416.  (a) A claim of mechanics lien shall be a written statement,
signed and verified by the claimant, containing all of the
following:
   (1) A statement of the claimant's demand after deducting all just
credits and offsets.
   (2) The name of the owner or reputed owner, if known.
   (3) A general statement of the kind of work furnished by the
claimant.
   (4) The name of the person by whom the claimant was employed or to
whom the claimant furnished work.
   (5) A description of the site sufficient for identification.
   (6) The claimant's address.
   (7) A proof of service affidavit completed and signed by the
person serving a copy of the claim of mechanics lien pursuant to
subdivision (c). The affidavit shall show the date, place, and manner
of service, and facts showing that the service was made in
accordance with this section. The affidavit shall show the name and
address of the  person or persons   owner or
reputed owner  upon whom the copy of the claim of mechanics lien
was served, and, if appropriate, the title or capacity in which
 he or she   the owner or reputed owner 
was served.
   (8) The following statement, printed in at least 10-point boldface
type. The letters of the last sentence shall be printed in uppercase
type, excepting the Internet Web site address of the Contractors'
State License Board, which shall be printed in lowercase type:

            ""NOTICE OF MECHANICS LIEN
                    ATTENTION!
  Upon the recording of the enclosed MECHANICS
LIEN with the county recorder's office of the
county where the property is located, your
property is subject to the filing of a legal
action seeking a court-ordered foreclosure sale
of the real property on which the lien has been
recorded. That legal action must be filed with
the court no later than 90 days after the date
the mechanics lien is recorded.
  The party identified in the enclosed mechanics
lien may have provided labor or materials for
improvements to your property and may not have
been paid for these items. You are receiving
this notice because it is a required step in
filing a mechanics lien foreclosure action
against your property. The foreclosure action
will seek a sale of your property in order to
pay for unpaid labor, materials, or
improvements provided to your property. This
may affect your ability to borrow against,
refinance, or sell the property until the
mechanics lien is released.
  BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU
MAY WISH TO SPEAK WITH YOUR CONTRACTOR
IMMEDIATELY, OR CONTACT AN ATTORNEY, OR FOR
MORE INFORMATION ON MECHANICS LIENS GO TO THE
CONTRACTORS' STATE LICENSE BOARD WEB SITE AT
www.cslb.ca.gov.''


   (b) A claim of mechanics lien in otherwise proper form, verified
and containing the information required in subdivision (a), shall be
accepted by the recorder for recording and shall be deemed duly
recorded without acknowledgment.
   (c) A copy of the claim of mechanics lien, which includes the
Notice of Mechanics Lien required by paragraph (8) of subdivision
(a), shall be served on the owner or reputed owner. Service shall be
made as follows:
   (1) For an owner or reputed owner to be notified who resides in or
outside this state, by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the owner or reputed owner at the owner's or
reputed owner's residence or place of business address or at the
address shown by the building permit on file with the authority
issuing a building permit for the work, or as otherwise provided in
Section 8174.
   (2) If the owner or reputed owner cannot be served by this method,
then the copy of the claim of mechanics lien may be given by
registered mail, certified mail, or first-class mail, evidenced by a
certificate of mailing, postage prepaid, addressed to the
construction lender or to the original contractor.
   (d) Service of the copy of the claim of mechanics lien by
registered mail, certified mail, or first-class mail, evidenced by a
certificate of mailing, postage prepaid, is complete at the time of
the deposit of that first-class, certified, or registered mail.
   (e) Failure to serve the copy of the claim of mechanics lien as
prescribed by this section, including the Notice of Mechanics Lien
required by paragraph (8) of subdivision (a), shall cause the claim
of mechanics lien to be unenforceable as a matter of law. 
  SECTION 1.    Section 1281.5 of the Code of Civil
Procedure, as amended by Section 1 of Chapter 22 of the Statutes of
2003, is amended to read:
   1281.5.  (a) Any person who proceeds to record and enforce a claim
of lien by commencement of an action pursuant to Title 15
(commencing with Section 3082) of Part 4 of Division 3 of the Civil
Code, does not thereby waive any right of arbitration the person may
have pursuant to a written agreement to arbitrate, if, in filing an
action to enforce the claim of lien, the claimant does either of the
following:
   (1) Includes an allegation in the complaint that the claimant does
not intend to waive any right of arbitration, and intends to move
the court, within 30 days after service of the summons and complaint,
for an order to stay further proceedings in the action.
   (2) At the same time that the complaint is filed, the claimant
files a motion that the action be stayed pending the arbitration of
any issue, question, or dispute that is claimed to be arbitrable
under the agreement and that is relevant to the action to enforce the
claim of lien.
   (b) Within 30 days after service of the summons and complaint, the
claimant shall file and serve a motion and notice of motion pursuant
to Section 1281.4 to stay the action pending the arbitration of any
issue, question, or dispute that is claimed to be arbitrable under
the agreement and that is relevant to the action to enforce the claim
of lien. Notwithstanding Section 1281.4, the claimant may make a
motion to stay the action pending arbitration even if none of the
parties to the action has filed an application for an order to
arbitrate the controversy, provided that, if any party opposes the
motion to stay the action on the ground that the party objects to
arbitration of the dispute, the court shall determine whether the
claim of lien or any relevant issue, question, or dispute is subject
to arbitration before staying the action. The failure of a claimant
to comply with this subdivision is a waiver of the claimant's right
to compel arbitration.
   (c) The failure of a defendant either to file a petition for a
court order to arbitrate pursuant to Section 1281.2 or to demand
arbitration pursuant to an agreement to arbitrate at or before the
time the defendant answers the complaint filed pursuant to
subdivision (a) is a waiver of the defendant's right to compel
arbitration.
   (d) This section shall become inoperative on July 1, 2012, and, as
of January 1, 2013, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2013, deletes or
extends the dates on which it becomes inoperative and is repealed.
 
  SEC. 2.    Section 1281.5 of the Code of Civil
Procedure, as amended by Section 25 of Chapter 697 of the Statutes of
2010, is amended to read:
   1281.5.  (a) Any person who proceeds to record and enforce a claim
of lien by commencement of an action pursuant to Chapter 4
(commencing with Section 8400) of Title 2 of Part 6 of Division 4 of
the Civil Code, does not thereby waive any right of arbitration the
person may have pursuant to a written agreement to arbitrate, if, in
filing an action to enforce the claim of lien, the claimant does
either of the following:
   (1) Includes an allegation in the complaint that the claimant does
not intend to waive any right of arbitration, and intends to move
the court, within 30 days after service of the summons and complaint,
for an order to stay further proceedings in the action.
   (2) At the same time that the complaint is filed, the claimant
files a motion that the action be stayed pending the arbitration of
any issue, question, or dispute that is claimed to be arbitrable
under the agreement and that is relevant to the action to enforce the
claim of lien.
   (b) Within 30 days after service of the summons and complaint, the
claimant shall file and serve a motion and notice of motion pursuant
to Section 1281.4 to stay the action pending the arbitration of any
issue, question, or dispute that is claimed to be arbitrable under
the agreement and that is relevant to the action to enforce the claim
of lien. Notwithstanding Section 1281.4, the claimant may make a
motion to stay the action pending arbitration even if none of the
parties to the action has filed an application for an order to
arbitrate the controversy, provided that, if any party opposes the
motion to stay the action on the ground that the party objects to
arbitration of the dispute, the court shall determine whether the
claim of lien or any relevant issue, question, or dispute is subject
to arbitration before staying the action. The failure of a claimant
to comply with this subdivision is a waiver of the claimant's right
to compel arbitration.
   (c) The failure of a defendant either to file a petition for a
court order to arbitrate pursuant to Section 1281.2 or to demand
arbitration pursuant to an agreement to arbitrate at or before the
time the defendant answers the complaint filed pursuant to
subdivision (a) is a waiver of the defendant's right to compel
arbitration.
   (d) This section shall become operative on July 1, 2012.