Salamirad Morrow | Attorneys at Law

CONTRACTORS BEWARE – “STRICT COMPLIANCE” WITH PRELIMINARY NOTICE REQUIREMENTS TAKEN TO THE LIMIT

CONTRACTORS BEWARE – “STRICT COMPLIANCE” WITH PRELIMINARY NOTICE REQUIREMENTS TAKEN TO THE LIMIT

September 9, 2014 | Posted by Ali Salamirad | Category: Uncategorized

In a recent unpublished California Court of Appeals case, a subcontractor’s preliminary notice was invalidated even though it had been timely and properly served.  The subcontractor served a preliminary notice on a project.   He served the prime contractor and the reputed owner, as required.   He served the notices by certified mail, as required.  He made a proof of service affidavit, as required.  The notices were delivered.   Years later, during litigation, the owner did not deny the notice was dispatched by certified mail.  During his deposition, the owner produced the original preliminary notice that he received, eliminating any doubts about its receipt.

Yet the subcontractor lost his mechanics lien foreclosure action in the trial court—and in the Court of Appeal—for failure to comply with California’s preliminary notice requirements.

Proper service of the notice was one thing, and proper proof of service turned out to be another.   While the subcontractor had fully complied with the service requirements, he could not comply with the proof of service requirements.   Under former Civil Code §3097.1, the proof of service affidavit for a preliminary notice served by certified mail had to be accompanied by one of two things: Either the green certified mail receipt card, or a copy of the record of delivery from the U. S. Postal Service.

The subcontractor had neither one.   The Postal Service admitted that it could not find its record of delivery.  And there never was a green certified mail receipt card, because the notice had been sent by certified mail—as allowed—without return receipt requested.

The subcontractor argued that strict compliance with the proof of service requirement had to be excused where, as here, there was no dispute that the service had been properly made, and where there was no dispute that the notice was actually received.   The Court of Appeal would not do it.   The proof of service statute was clear, and would not allow for judicially-created “excuses.

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CONTRACTORS BEWARE – “STRICT COMPLIANCE” WITH PRELIMINARY NOTICE REQUIREMENTS TAKEN TO THE LIMIT

CONTRACTORS BEWARE – “STRICT COMPLIANCE” WITH PRELIMINARY NOTICE REQUIREMENTS TAKEN TO THE LIMIT

September 9, 2014 | Posted by Ali Salamirad | Category: Uncategorized

In a recent unpublished California Court of Appeals case, a subcontractor’s preliminary notice was invalidated even though it had been timely and properly served.  The subcontractor served a preliminary notice on a project.   He served the prime contractor and the reputed owner, as required.   He served the notices by certified mail, as required.  He made a proof of service affidavit, as required.  The notices were delivered.   Years later, during litigation, the owner did not deny the notice was dispatched by certified mail.  During his deposition, the owner produced the original preliminary notice that he received, eliminating any doubts about its receipt.

Yet the subcontractor lost his mechanics lien foreclosure action in the trial court—and in the Court of Appeal—for failure to comply with California’s preliminary notice requirements.

Proper service of the notice was one thing, and proper proof of service turned out to be another.   While the subcontractor had fully complied with the service requirements, he could not comply with the proof of service requirements.   Under former Civil Code §3097.1, the proof of service affidavit for a preliminary notice served by certified mail had to be accompanied by one of two things: Either the green certified mail receipt card, or a copy of the record of delivery from the U. S. Postal Service.

The subcontractor had neither one.   The Postal Service admitted that it could not find its record of delivery.  And there never was a green certified mail receipt card, because the notice had been sent by certified mail—as allowed—without return receipt requested.

The subcontractor argued that strict compliance with the proof of service requirement had to be excused where, as here, there was no dispute that the service had been properly made, and where there was no dispute that the notice was actually received.   The Court of Appeal would not do it.   The proof of service statute was clear, and would not allow for judicially-created “excuses.

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