BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 456|
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CONSENT
Bill No: AB 456
Author: Wagner (R)
Amended: 6/21/11 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 07/05/11
AYES: Evans, Harman, Blakeslee, Corbett, Leno
ASSEMBLY FLOOR : 69-0, 04/25/11 - See last page for vote
SUBJECT : Mechanics liens
SOURCE : Author
DIGEST : This bill amends sections of existing law
relating to mechanics liens to provide that a proof of
service affidavit shall show the name and address of the
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 the owner or reputed owner was served.
This bill makes other technical changes.
ANALYSIS : Existing law provides that mechanics, persons
furnishing materials, artisans, and laborers of every class
have a lien upon the property upon which they bestowed
labor or furnished material for the value of such labor
done and material furnished. (Cal. Const., art. 14, sec.
3.)
Existing law, operative until July 1, 2012, provides that
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mechanics, contractors, subcontractors, artisans,
architects, material suppliers, lessors of equipment, and
others who bestow labor, skill, supplies, or services to a
private work of property improvement have a lien upon the
property and establishes the procedures by which the lien
may be recorded and enforced. (Civ. Code Sec. 3109 et
seq.)
Existing law, operative July 1, 2012, provides that a
person who provides work authorized for a work of
improvement has a lien right, and establishes the
procedures by which the lien may be recorded and enforced.
Such persons include, but are not limited to, direct
contractors, subcontractors, material suppliers; equipment
lessors, laborers, and design professionals. (Civ. Code
Sec. 8400 et seq.)
Existing law provides that a "claim of lien" (or
"mechanic's lien") means a written statement, signed and
verified by the claimant that contains all of the following
information:
A statement of the claimant's demand after
deducting all just credits and offsets;
The name of the owner or reputed owner, if known;
A general statement of the kind of labor, services,
equipment, or materials furnished by the claimant;
The name of the person by whom the claimant was
employed or to whom the claimant furnished the labor,
services, equipment, or materials;
A description of the site sufficient for
identification;
A proof of service affidavit completed and designed
by the person serving the Notice of Mechanic's Lien,
as specified; and
A statement of a Notice of Mechanic's Lien, as
specified. (Civ. Code Sec. 3084(a) operative until
July 1, 2012; Civ. Code Sec. 8416(a), operative July
1, 2012, is substantially, similar, but also adds to
this list the claimant's address.)
Existing law requires service of a copy of the mechanic's
lien and the Notice of Mechanic's Lien, as specified, on
the owner or reputed owner as follows:
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For an owner or reputed owner to be notified by
mail, as specified, 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
specified; and
If the owner or reputed owner cannot be served in
this manner, then the notice may be given by mail, as
specified, addressed to the construction lender or to
the original contractor. (Civ. Code Sec.
3084(c)(1)(A)-(B), operative until July 1, 2012; Civ.
Code Sec. 8416(c)(1)-(2), operative on July 1, 2012.)
Existing law, operative until July 1, 2012, provides that
"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 as specified. Existing law requires that the
affidavit show the name and address of the person or
persons upon whom copy of the mechanic's lien and the
Notice of Mechanic's Lien was served, and if appropriate,
the title or capacity in which he or she was served. (Civ.
Code Sec. 3084(a)(6).)
Existing law, operative July 1, 2012, provides that the
proof of service affidavit must show the date, place, and
manner of service, and facts showing that the service was
made as specified. Existing law requires that the
affidavit show the name and address of the person or
persons upon whom the copy of the claim of mechanics lien
was served, and, if appropriate, the title or capacity in
which he or she was served. (Civ. Code Sec. 8416(a)(7).)
Existing law provides that failure to serve a copy of the
mechanic's lien as prescribed above, including the Notice
of Mechanic's Lien as specified, shall cause the mechanic's
lien to be unenforceable as a matter of law. (Civ. Code
Sec. 3084(d), operative until July 1, 2012; Civ. Code Sec.
8416(e), operative July 1, 2012.)
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This bill replaces the use of the words "person or persons"
with "owner or reputed owner" in the above described
provisions, thereby requiring that a proof of service
affidavit show the name and address of the 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
the owner or reputed owner was served.
This bill replaces references to "mechanic's lien" with
"mechanics lien."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/7/11)
Air Conditioning and Refrigeration Contractors Association
Air Conditioning and Sheet Metal Association
Building Industry Credit Association
California Chapter of the American Fence Association
California Chapters of the National Electrical Contractors
Association
California Fence Contractors' Association
California Landscape and Irrigation Council
California Legislative Conference of the Plumbing, Heating,
and Piping Industry
Construction Industry Force Account Council
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders' Association
ARGUMENTS IN SUPPORT : According to the author, "AB 457
(Monning - Ch. 109, Stats. 2009) requires that a mechanic's
lien and the accompanying Proof of Service Affidavit be
served on an owner or reputed owner 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. This bill would
provide clarification and consistency in the code to ensure
that, if the owner or reputed owner is listed in the Proof
of Service Affidavit, then there wouldn't be the
opportunity to invalidate the lien based on a minor error
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in the name, part of the name or title."
According to supporters:
Passage of this measure is critical, because it makes
an important clarifying change to existing law that,
if left unchanged, could result in mechanics liens
being invalidated due to very minor errors. . . .
Throughout the Civil Code Sections 3084 and Ý8]146,
and in the mechanic's lien itself, it requires the
name of the owner or reputed owner while in the Proof
of Service Affidavit it requires the name and title of
the person served. In a day-to-day application of
this new law those who are preparing the mechanic's
lien, and the Proof of Service Affidavit that is now
required, often do not know or have access to accurate
information regarding the specific name and title of a
person to be listed on the Proof of Service Affidavit,
which is now part of the mechanic's lien. This is
true particularly when the property is owned by a
business organization. This creates a large problem
because the new statuÝt]e states that: "Failure to
serve the mechanic's lien, including the notice of
mechanic's lien, as prescribed by this section, shall
cause the mechanic's lien to be unenforceable as a
matter of law." ÝEmphasis in original.]
AB 456 is a simple amendment to the new statute to
insert "owner or reputed owner" where the current
statute specifies "person or personsÝ,"] and in doing
so, provides clarification and consistency in the code
to ensure that, if the owner or reputed owner is
listed in the Proof of Service Affidavit, then there
Ýwould not] be the opportunity to invalidate the lien
based on a minor error in name, part of the name, or
title.
ASSEMBLY FLOOR : 69-0, 04/25/11
AYES: Achadjian, Ammiano, Atkins, Beall, Bill Berryhill,
Block, Blumenfield, Bonilla, Bradford, Brownley,
Buchanan, Butler, Campos, Carter, Cedillo, Chesbro,
Conway, Cook, Davis, Dickinson, Donnelly, Eng, Feuer,
Fletcher, Fong, Fuentes, Galgiani, Garrick, Gatto,
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Gordon, Grove, Hagman, Halderman, Hall, Harkey, Hayashi,
Hill, Huber, Huffman, Jeffries, Jones, Knight, Logue,
Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller, Monning,
Morrell, Nestande, Nielsen, Norby, Pan, Perea, V. Manuel
Pérez, Portantino, Silva, Skinner, Smyth, Solorio,
Swanson, Torres, Valadao, Wagner, Wieckowski, Williams,
Yamada, John A. Pérez
NO VOTE RECORDED: Alejo, Allen, Charles Calderon,
Furutani, Gorell, Roger Hernández, Hueso, Lara, Mitchell,
Olsen, Vacancy
RJG:nl 7/7/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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