Preview
Electronically Filed Superior Court of CA County of Contra Costa 9/19/2023 2:50 PM By: T. Jacobsen-Rios, Deputy
DAVID B. STROMBERG, ESQ. (SBN ¹88132)
STROMBERG LAW FIRM, Attorneys/Mediators
1211 Newell Avenue, Suite 230
Walnut Creek, CA 94596
Telephone: 925.937.6300
Facsimile: 925.937.9140
Attorneys for Defendants LYNN BRYANT,
TRUSTEE OF THE BENNETT TRUST; and
LYNN BRYANT, an individual
CONTRA COSTA SUPERIOR COURT
M
re [Unlimited Jurisdiction]
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11 UNIVERSE PAINTING, INC., a California C23-00029
corporation
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tll Plaintiff, DECLARATION OF DAVID B.
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13 STROMBERG IN SUPPORT OF
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I X vs. DEMURRER TO COMPLAINT
14
p&V Ct
Ct LYNN BRYANT, TRUSTEE OF THE DATE:
~ EQ e 15 BENNETT TRUST; LYNN BRYANT, an TIME:
Ul r individual; and DOES ONE THROUGH DEPT: 18 (Hon. Danielle K. Douglas)
Wz" O 16 TEN, Inclusive,
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17 Defendants.
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e. 18
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ot 20
I, DAVID B. STROMBERG, declare:
21
1. That I am an attorney duly admitted to practice law in the State of California and
22
am the principal of Stromberg Law Firm, Attorneys/Mediators, counsel of record for defendants
23
Lynn Bryant individually and as Trustee of the Bennett Trust herein. The following declaration is
24
of my own personal knowledge and if called to testify as to its contents I could and would do so
25
competently.
26
2. On August 24, 2023, I drafted and sent to plaintiff s counsel correspondence to
27
28 Decl. of David B. Stromberg in Support of
Demurrer to Complaint
initiate the "meet and confer" period with respect to my prospective demurrer to the complaint. A
true and correct copy of my correspondence is attached hereto as Exhibit "A" and incorporated
herein by reference.
3. Subsequent to that correspondence, plaintiff s counsel Brian D. Seibel sent me
correspondence on August 29, 2023, in which he submitted that the case of Blackburn v.
Bucksporr & E.R.R. Co. (1908) 7 Cal.App. 649 was dispositive as to what is the impact of the
failure to seek, obtain and record a Notice of Pendency of Action.
4. In response, I sent Mr. Seibel further correspondence dated August 29, 2023, a true
and correct copy of which is attached hereto as Exhibit "B" and incorporated herein by reference.
0
10 5. Accordingly, on May 18, 2023, I sent correspondence to Mr. Seibel articulating
ct
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'o a the bases for my prospective demurrer. A true and correct copy of my correspondence is attached
to~a m
o 12 hereto as Exhibit "B" and incorporated herein by reference. In that letter, I opined that the court
+ ~C
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0— 13 would reach the conclusion that the JIlackburn decision, one that was decided over 100 years
x
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& ui w c 14 before the California Legislature amended the Civil Code to make mandatory the requirement of
g4U o
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O 15 the recording and service of the Notice of Pendency of Action within 20 days of the filing of the
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g+(J e 16 complaint to foreclose upon a mechanic's lien, is irrelevant and unavailing. I indicated that, while
A~zo 17 I would be happy to engage him in further dialogue should he have any further legal authority to
Q
18 provide, in the absence of such further legal authority I could not see how further meeting and
Ct 19 conferring would dissuade me from pursuing the demurrer. Mr. Seibel emailed back saying that
ce,'
co 20 he understood.
21 I declare under penalty of perjury under the laws of the State of California that the
22 foregoing is true and correct and that this declaration was executed on September 18, 2023, at
23 Walnut Creek, California.
24
25 Davif tro
. g
26
27
28 Decl. of David B. Stromberg in Support of
Demurrer to Complaint
EXHIBIT "A"
"A"
1211 Newell Avenue, Suite 230
Walnut Creek, CA 94596
Telephone: 925.937.6300
Facsimile: 925.937.9140
www.stromberglaw.corn
S rRO~IBERG LAW'IR~I Email: stromberg@stromberglaw.corn
Attorttcyshvlcdiators
August 24, 2023
VIA EMAIL
Brian D. Seibel, Esq.
Seibel 2k Finta
1401 Willow Pass Road, Ste. 1010
Concord, CA 94520
Re: Universe Painting, Inc., v. Bryant, et al.
Contra Costa Superior Court No. C23-00029
Our File No.: 23231
Mr. Seibel:
I have received and reviewed your First Amended Complaint (FAC) as well as reviewed the
court's docket for this case. Pursuant to Code of Civil Procedure II430.41(a), this letter serves as
notice to you that I intend to file a demurrer to your complaint and is intended to fulfill my "meet
and confer" obligations.
The basis for the prospective demurrer to the FAC is an unassailable omission that is incapable
of being rectified is your and your client's failure to obtain, record and serve a Notice of
Pendency of Action (NPA) on Ms. Bryant.
Prior to 2011, it was common to record an NPA relative to a mechanic's lien claim, but it was
not required. However, in 2011, Assembly Bill 457 was adopted and codified as Civ. Code
$ 8461 (replacing Civ. Code II3146), making changes to the Mechanic's Lien laws. The
fundamental substantive change was that after filing the lawsuit to foreclose on the mechanic'
lien, the plaintiff shall record an NPA on or before 20 davs after the ftiinu of the Mechanic'
Lien foreclosure action. Civ. Code II8461further states, "Only from the time of recording that
notice shall a purchaser or encumbrancer of the property affected thereby be deemed to have
constructive notice of the pendency of action, and in that event only of its pendency against
parties designated by their real names."
Legal commentators have uniformly concluded that a failure to record the NPA invalidates a
mechanic's lien claim. This conclusion is self-evident. If the Legislature did not intend the
recordation and notice of the NPA to be mandatory, such that failure to do so invalidates the
mechanic's lien, it would not have drafted Civ. Code II8461 using the word "shall". Indeed, if the
failure to record and serve the NPA were not grounds for the invalidation of the mechanic's lien,
Brian D. Seibel, Esq.
August 24, 2023
Page 2
there would have been no reason or purpose behind AB 457 and the subsequent replacement of
Civ. Code II3146 with Civ. Code II8461. Also, a subsequent title insurer, lender, or bona fide
purchaser would not be subject to the mechanic's lien if the NPA were not recorded.
Code Civ. Proc. sq405.22 sets forth how the NPA shall be served on the owner of the property. It
provides that, "...the claimant shall, prior to recordation of the notice, cause a copy of the notice
to be mailed, by registered or certified mail, return receipt requested, to all known addresses of
the parties to whom the real property claim is adverse...." Code Civ. Proc. I]405.23 states that
"Any INPA] shall be void and invalid as to any adverse party or owner of record unless the
requirements of Section 405.22 are met for that parly or owner and a proof of service in the form
and content specified in Section 1013a has been recorded with the [NPA]."
There is no tenable legal defense to the failure to comply with the NPA requirement. The
Legislature went to great lengths to specify that it was a mandatory requirement; to specify the
precise deadline by which the NPA needed to be recorded (both in Superior Court and in the
County Recorder's Oflice); and to specify how the NPA needed to be served on the property
owner for the mechanic's lien claim to be viable. Inasmuch as this requirement has been
statutory since 2011, there is no ability at this stage in this litigation for your client or you to
claim "mistake, inadvertence or excusable neglect."
Brian, while you may have craftily and successfully incorporated language into the original
complaint to create the FAC that would withstand attack by the scope of the original demurrer,
the failure to comply with the NPA statutory requirements is what you must concede is a fatal
omission that invalidates Universe Painting's mechanic's lien and your mechanic's lien claim.
Accordingly, this letter constitutes our demand that you voluntarily dismiss with prejudice the
Second Cause of Action of the FAC and continue to prosecute only the First Cause of Action for
Breach of Agreement.
If you believe that you have legal authority that allows you to continue to assert your mechanic'
lien claims, I expect you to provide that legal authority for my review and consideration. I will
await receipt of it on or before 5:00 p.m. on Wednesday, August 30, 2023. After that, I will draft
and file the prospective demurrer.
STROMBERG LAW FIRM
Attorneys/Mediators
David B. Stromberg
DBS:nfs
cc: client
EXHIBIT "B"
"B"
1211 Newel l Avenue, Suite 230
Walnut Creek, CA 94596
Telephone: 925.937.6300
Facsimile: 925.937.9140
www.stromberglaw.corn
STROiI BERG LAB'IRi1 Email: stromberg@strombergtaw.corn
Attorneys/Xlcdtators
August 29, 2023
VIA EMAIL
Brian D. Seibel, Esq.
Seibel & Finta
1401 Willow Pass Road, Ste. 1010
Concord, CA 94520
Re: Universe Painting, Inc., v. Bryant, et al.
Contra Costa Superior Court No. C23-00029
Our File No.: 23231
Mr. Seibel:
I have received and reviewed your correspondence of this date in response to my "meet and
confer" correspondence dated August 24, 2023.
The sole defense (sic) that you have raised to the contents of my correspondence is your reliance
on Blackburn v. Buckspor/ rfr E.R.R. Co., a 1908 Court of Appeal decision, that only concerned
notices of pendency of action (lis pendens) in general but not in the context of a mechanic's lien.
As my correspondence made manifestly clear, the California Legislature in 2011, almost 100
vears after the Blackburn case was decided, amended the Civil Code statute dealing with
mechanic's liens to incorporate the requirement of the submission, recordation, and service of
the notice of pendency of action following the filing of a complaint to foreclose upon the
mechanic's lien.
However you elect to rely on the Blackburn decision as your defense to a demurrer in this case, I
am absolutely certain that Judge Douglas will reach the obvious conclusion that the Blackburn is
irrelevant and unavailing as a basis to ignore the Legislature's clear intent in 2011 that the
submission, recordation, and service of the notice of pendency of action following the filing of a
complaint to foreclose upon the mechanic's lien is a critical requirement to the continued
prosecution of the foreclosure action, and your/your client*s failure to comply with Civil Code
I'18461 renders your cause of action for foreclosure of the mechanic*s lien fatally defective, such
that my prospective demurrer will be sustained without leave to amend.
Brian D. Seibel, Esq.
August 29, 2023
Page 2
While I will be happy to engage you in dialogue should you have any further legal authority to
provide in connection with your opposition to my demurrer, I will be proceeding with the
preparation of the demurrer at this time. In the absence of your proffering legitimate legal
decisional authority rendered subsequent to the codification of the notice of pendency of action
requirement for mechanic's lien claims, I cannot see how further meeting and conferring will
dissuade me from pursuing the demurrer.
Very truly yours,
STROMBERG LAW FIRM
Attorneys/Mediators
David B. Stromberg
DBS:nfs
cc: client
Preview
Electronically Filed Superior Court of CA County of Contra Costa 9/19/2023 2:50 PM By: T. Jacobsen-Rios, Deputy DAVID B. STROMBERG, ESQ. (SBN ¹88132) STROMBERG LAW FIRM, Attorneys/Mediators 1211 Newell Avenue, Suite 230 Walnut Creek, CA 94596 Telephone: 925.937.6300 Facsimile: 925.937.9140 Attorneys for Defendants LYNN BRYANT, TRUSTEE OF THE BENNETT TRUST; and LYNN BRYANT, an individual CONTRA COSTA SUPERIOR COURT M re [Unlimited Jurisdiction] 0 t 10 m 11 UNIVERSE PAINTING, INC., a California C23-00029 corporation +ED ro~e ~ 12 e z Ev tll Plaintiff, DECLARATION OF DAVID B. 0(-z C4 CV C2 13 STROMBERG IN SUPPORT OF ~re o I X vs. DEMURRER TO COMPLAINT 14 p&V Ct Ct LYNN BRYANT, TRUSTEE OF THE DATE: ~ EQ e 15 BENNETT TRUST; LYNN BRYANT, an TIME: Ul r individual; and DOES ONE THROUGH DEPT: 18 (Hon. Danielle K. Douglas) Wz" O 16 TEN, Inclusive, e 17 Defendants. e 0 e. 18 cc 0 19 ot 20 I, DAVID B. STROMBERG, declare: 21 1. That I am an attorney duly admitted to practice law in the State of California and 22 am the principal of Stromberg Law Firm, Attorneys/Mediators, counsel of record for defendants 23 Lynn Bryant individually and as Trustee of the Bennett Trust herein. The following declaration is 24 of my own personal knowledge and if called to testify as to its contents I could and would do so 25 competently. 26 2. On August 24, 2023, I drafted and sent to plaintiff s counsel correspondence to 27 28 Decl. of David B. Stromberg in Support of Demurrer to Complaint initiate the "meet and confer" period with respect to my prospective demurrer to the complaint. A true and correct copy of my correspondence is attached hereto as Exhibit "A" and incorporated herein by reference. 3. Subsequent to that correspondence, plaintiff s counsel Brian D. Seibel sent me correspondence on August 29, 2023, in which he submitted that the case of Blackburn v. Bucksporr & E.R.R. Co. (1908) 7 Cal.App. 649 was dispositive as to what is the impact of the failure to seek, obtain and record a Notice of Pendency of Action. 4. In response, I sent Mr. Seibel further correspondence dated August 29, 2023, a true and correct copy of which is attached hereto as Exhibit "B" and incorporated herein by reference. 0 10 5. Accordingly, on May 18, 2023, I sent correspondence to Mr. Seibel articulating ct O 'o a the bases for my prospective demurrer. A true and correct copy of my correspondence is attached to~a m o 12 hereto as Exhibit "B" and incorporated herein by reference. In that letter, I opined that the court + ~C cV Z -oo" 0— 13 would reach the conclusion that the JIlackburn decision, one that was decided over 100 years x U5 & ui w c 14 before the California Legislature amended the Civil Code to make mandatory the requirement of g4U o pJ O 15 the recording and service of the Notice of Pendency of Action within 20 days of the filing of the r g+(J e 16 complaint to foreclose upon a mechanic's lien, is irrelevant and unavailing. I indicated that, while A~zo 17 I would be happy to engage him in further dialogue should he have any further legal authority to Q 18 provide, in the absence of such further legal authority I could not see how further meeting and Ct 19 conferring would dissuade me from pursuing the demurrer. Mr. Seibel emailed back saying that ce,' co 20 he understood. 21 I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct and that this declaration was executed on September 18, 2023, at 23 Walnut Creek, California. 24 25 Davif tro . g 26 27 28 Decl. of David B. Stromberg in Support of Demurrer to Complaint EXHIBIT "A" "A" 1211 Newell Avenue, Suite 230 Walnut Creek, CA 94596 Telephone: 925.937.6300 Facsimile: 925.937.9140 www.stromberglaw.corn S rRO~IBERG LAW'IR~I Email: stromberg@stromberglaw.corn Attorttcyshvlcdiators August 24, 2023 VIA EMAIL Brian D. Seibel, Esq. Seibel 2k Finta 1401 Willow Pass Road, Ste. 1010 Concord, CA 94520 Re: Universe Painting, Inc., v. Bryant, et al. Contra Costa Superior Court No. C23-00029 Our File No.: 23231 Mr. Seibel: I have received and reviewed your First Amended Complaint (FAC) as well as reviewed the court's docket for this case. Pursuant to Code of Civil Procedure II430.41(a), this letter serves as notice to you that I intend to file a demurrer to your complaint and is intended to fulfill my "meet and confer" obligations. The basis for the prospective demurrer to the FAC is an unassailable omission that is incapable of being rectified is your and your client's failure to obtain, record and serve a Notice of Pendency of Action (NPA) on Ms. Bryant. Prior to 2011, it was common to record an NPA relative to a mechanic's lien claim, but it was not required. However, in 2011, Assembly Bill 457 was adopted and codified as Civ. Code $ 8461 (replacing Civ. Code II3146), making changes to the Mechanic's Lien laws. The fundamental substantive change was that after filing the lawsuit to foreclose on the mechanic' lien, the plaintiff shall record an NPA on or before 20 davs after the ftiinu of the Mechanic' Lien foreclosure action. Civ. Code II8461further states, "Only from the time of recording that notice shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of action, and in that event only of its pendency against parties designated by their real names." Legal commentators have uniformly concluded that a failure to record the NPA invalidates a mechanic's lien claim. This conclusion is self-evident. If the Legislature did not intend the recordation and notice of the NPA to be mandatory, such that failure to do so invalidates the mechanic's lien, it would not have drafted Civ. Code II8461 using the word "shall". Indeed, if the failure to record and serve the NPA were not grounds for the invalidation of the mechanic's lien, Brian D. Seibel, Esq. August 24, 2023 Page 2 there would have been no reason or purpose behind AB 457 and the subsequent replacement of Civ. Code II3146 with Civ. Code II8461. Also, a subsequent title insurer, lender, or bona fide purchaser would not be subject to the mechanic's lien if the NPA were not recorded. Code Civ. Proc. sq405.22 sets forth how the NPA shall be served on the owner of the property. It provides that, "...the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse...." Code Civ. Proc. I]405.23 states that "Any INPA] shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that parly or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the [NPA]." There is no tenable legal defense to the failure to comply with the NPA requirement. The Legislature went to great lengths to specify that it was a mandatory requirement; to specify the precise deadline by which the NPA needed to be recorded (both in Superior Court and in the County Recorder's Oflice); and to specify how the NPA needed to be served on the property owner for the mechanic's lien claim to be viable. Inasmuch as this requirement has been statutory since 2011, there is no ability at this stage in this litigation for your client or you to claim "mistake, inadvertence or excusable neglect." Brian, while you may have craftily and successfully incorporated language into the original complaint to create the FAC that would withstand attack by the scope of the original demurrer, the failure to comply with the NPA statutory requirements is what you must concede is a fatal omission that invalidates Universe Painting's mechanic's lien and your mechanic's lien claim. Accordingly, this letter constitutes our demand that you voluntarily dismiss with prejudice the Second Cause of Action of the FAC and continue to prosecute only the First Cause of Action for Breach of Agreement. If you believe that you have legal authority that allows you to continue to assert your mechanic' lien claims, I expect you to provide that legal authority for my review and consideration. I will await receipt of it on or before 5:00 p.m. on Wednesday, August 30, 2023. After that, I will draft and file the prospective demurrer. STROMBERG LAW FIRM Attorneys/Mediators David B. Stromberg DBS:nfs cc: client EXHIBIT "B" "B" 1211 Newel l Avenue, Suite 230 Walnut Creek, CA 94596 Telephone: 925.937.6300 Facsimile: 925.937.9140 www.stromberglaw.corn STROiI BERG LAB'IRi1 Email: stromberg@strombergtaw.corn Attorneys/Xlcdtators August 29, 2023 VIA EMAIL Brian D. Seibel, Esq. Seibel & Finta 1401 Willow Pass Road, Ste. 1010 Concord, CA 94520 Re: Universe Painting, Inc., v. Bryant, et al. Contra Costa Superior Court No. C23-00029 Our File No.: 23231 Mr. Seibel: I have received and reviewed your correspondence of this date in response to my "meet and confer" correspondence dated August 24, 2023. The sole defense (sic) that you have raised to the contents of my correspondence is your reliance on Blackburn v. Buckspor/ rfr E.R.R. Co., a 1908 Court of Appeal decision, that only concerned notices of pendency of action (lis pendens) in general but not in the context of a mechanic's lien. As my correspondence made manifestly clear, the California Legislature in 2011, almost 100 vears after the Blackburn case was decided, amended the Civil Code statute dealing with mechanic's liens to incorporate the requirement of the submission, recordation, and service of the notice of pendency of action following the filing of a complaint to foreclose upon the mechanic's lien. However you elect to rely on the Blackburn decision as your defense to a demurrer in this case, I am absolutely certain that Judge Douglas will reach the obvious conclusion that the Blackburn is irrelevant and unavailing as a basis to ignore the Legislature's clear intent in 2011 that the submission, recordation, and service of the notice of pendency of action following the filing of a complaint to foreclose upon the mechanic's lien is a critical requirement to the continued prosecution of the foreclosure action, and your/your client*s failure to comply with Civil Code I'18461 renders your cause of action for foreclosure of the mechanic*s lien fatally defective, such that my prospective demurrer will be sustained without leave to amend. Brian D. Seibel, Esq. August 29, 2023 Page 2 While I will be happy to engage you in dialogue should you have any further legal authority to provide in connection with your opposition to my demurrer, I will be proceeding with the preparation of the demurrer at this time. In the absence of your proffering legitimate legal decisional authority rendered subsequent to the codification of the notice of pendency of action requirement for mechanic's lien claims, I cannot see how further meeting and conferring will dissuade me from pursuing the demurrer. Very truly yours, STROMBERG LAW FIRM Attorneys/Mediators David B. Stromberg DBS:nfs cc: client