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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Hello - is a California mechanics lien really invalidated

Resolved Question:

Hello - is a California mechanic's lien really invalidated if my attorney failed to file a lis pendence after he filed to foreclose on the lien?
Submitted: 1 year ago via ExpertLaw.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. Note: there may be a slight delay between your follow ups and my replies.

On this website, I do not always get to give good news, and I am afraid that this is one of these times.

I am afraid so. Under Ca. Civ. Code § 3146, there is a requirement that the claimant record a lis pendens Uu>within 20 days after filing an action to foreclose on mechanics liens.

This is a new change - see here.

If the attorney has caused you to lose the action due to late filing, a party may contemplate a legal malpractice case against counsel.

The elements of a legal malpractice cause of action are: (1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage. (Schultz v. Harney (1994) 27 Cal. App.4th 1611, 1621, 33 Cal.Rptr.2d 276.)

I hope this clarifies.

Surely, you prefer that I tell the truth rather than what you wish to hear. Because it reflects very poorly on me unless you press one of the top three faces, keep this in mind when rating my and please do not punish me for being honest. I understand that this may not be easy to hear, and I empathize.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating. My ultimate goal is your complete satisfaction.
Customer: replied 1 year ago.

I had the mechanic's lien in place prior to hiring my attorney to foreclose on it. That was last June. Obviously, I'm outside of my time-line to refile for another mechanic's lien.


 


My attorney bolted (relieved himself of the case) last week when he realized what he had done (failed to do). So now, after paying him thousands and thousands of dollars - not knowing I had no case since last July, I'm wondering if the defendant can now come back and sue me for his own legal expenses all this time?


 


I've been told that as a General Contractor, if the defendant does come back and try to recover his own legal expenses - and actually wins, he can then send a copy to the CSLB, and they will suspend my contractor's license until I pay the defendant in full. Is this true?


 


At the end of the day - I completed a remodel. I paid all the subs. The defendant said he was very happy with my work (in writing).... then the excuses for not paying his bill started. That's why the lien was filed in the first place. It sounds like I'm in a world of shyt now - and I don't know what to do. (I have no attorney now, and the defense attorney wants a full lien release no later than Monday at noon). What can I do?

Expert:  Ely replied 1 year ago.
Thank you for your follow up, S.

My attorney bolted (relieved himself of the case) last week when he realized what he had done (failed to do).

I am sorry to hear that!

So now, after paying him thousands and thousands of dollars - not knowing I had no case since last July, I'm wondering if the defendant can now come back and sue me for his own legal expenses all this time?

Likely not. Sue you for what, exactly? To sue in state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state. Every cause of action has its own elements, and each element has to be satisfied for a cause of action to be successful in court.

Here, you attempted to litigate but the suit fell apart on technicality. That in itself is not actionable. The closest thing I can think of is malicious prosecution. To establish a cause of action for the malicious prosecution, of a civil proceeding a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor (2) was brought without probable cause and (3) was initiated with malice. Zamos v. Stroud, 87 P. 3d 802 - Cal: Supreme Court 2004 (internal citations omitted). This does not apply here - you HAD probable cause.

I've been told that as a General Contractor, if the defendant does come back and try to recover his own legal expenses - and actually wins, he can then send a copy to the CSLB, and they will suspend my contractor's license until I pay the defendant in full. Is this true?

In a manner of speaking. If you are a GS, a judgment may be sent to CSLB which may suspend your license until it is paid... but, as explained above, the other party likely has no case to bring.

(I have no attorney now, and the defense attorney wants a full lien release no later than Monday at noon). What can I do?

Well, first of all take a breath. As explained above, you are likely NOT in that world of ***** as you had stated. Someone in your situation may wish to either:

1) release the lien (in exchange for a written release against any action by them against you which they likely will grant - not that they have such an action necessarily, but just as a precaution so they do not even think to try it) or

2) retain another counsel in an attempt to still somehow push through the matter.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating. My ultimate goal is your complete satisfaction.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86682
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 11 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thank you so much for your help. It kills me, but I will sign off on the lien release - thus losing all the money that was due to me for the work I completed on the construction project. And after paying my attorney $16,000+ for his "services" - I guess I will have to just suck it up.


 


You have been so helpful to me! Thank you again! (Is there a way to "tip" you?)

Expert:  Ely replied 1 year ago.

S, Thank you for your kind words and your generosity. I understand where you are coming from. DO talk to local counsel about perhaps seeking reimbursement from the previous attorney for the foul up... Good luck.

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