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Serving Your 20-Day Preliminary Notice –
Court Finds There Is (A Little) Room For Error
By Jennifer Tung, Esq.
It has long been understood that the “mechanics” of California’s mechanic’s lien laws require precision and often perfection. Recently, however, the California Court of Appeal issued a narrow ruling that perfection in serving a 20-day preliminary notice under former Civil Code section 3097.1 is not required, where the other side admits – rightly or wrongly – that the preliminary notice was served in compliance with the law.
In Hub Construction Specialties, Inc. v. Esperanza Charities, Inc., Hub Construction Specialties, Inc. (“Hub”), a materials supplier, mailed to property owner, Esperanza Charities, Inc. (“Esperanza”), a 20-day preliminary notice by certified mail. Hub, however, did not request a “return receipt” for the preliminary notice, as required by former Civil Code section 3097.1. Even so, Esperanza admitted that: 1) Hub’s preliminary notice was served by certified mail; 2) that the Postal Service’s website tracking certified mail items showed that the preliminary notice was delivered; and 3) Esperanza actually received the preliminary notice.
Based on these admissions, the Court of Appeal held that Hub’s mechanic’s lien was valid. Although Hub did not request a return receipt as required by law, the Lien Laws require only strict compliance with “transmittal methods and notice requirements.” Since Hub served the preliminary notice using a proper method and Esperanza acknowledged actual receipt of the preliminary notice, Hub satisfied its notice obligations and any proof of service deviation should be viewed in favor of Hub, as a mechanic’s lien claimant.
Cautious not to go too far, the Hub court noted that while it “does not disagree with the rule that strict compliance with the notice requirements of former Civil Code section 3097 is required…[it] merely decline[d] to extend the rule of strict construction to the proof of service requirements of former section 3097.1.” Relying upon the “well-established principle that the mechanic’s lien law is remedial legislation, to be liberally construed for the protection of laborers and materialmen,” the Court of Appeal ruled that: “in a case where defendant has admitted that notice was served in the statutorily prescribed manner, plaintiff need not comply with the statutory requirements for proving that notice was served in the statutorily prescribed manner.”
In short, the Hub court refused to uphold a ruling that placed form over function. Instead, the court acknowledged that it is the service of the 20-day preliminary notice – not the manner in which the service is recorded – that matters.
Jennifer Tung is an Associate with Hunt Ortmann, a leader in California construction law. If you have any questions about this bulletin or the 20-day preliminary notice, please contact her at Tung@huntortmann.com.