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Don’t Stamp Out Your Lien Rights!

By November 9, 2011October 24th, 2018Charles Murawski, Construction Litigation Blog

Charlie Murawski

In the California construction industry, most material suppliers and subcontractors know that if materials or labor are provided on a private construction project, California law generally allows them to record a mechanic’s lien against the project in the event the project owner fails to pay.  A mechanic’s lien is considered valid if a California 20 Day Preliminary Notice has been properly served on the project’s owner, lender, and general contractor.   When a preliminary notice is served by mail, California Civil Code §3097.1 requires, among other things, the preparation of a “proof of service affidavit.”  The requirements of Civil Code §3097.1 are strictly interpreted by the courts.  Therefore, failure to follow the requirements will invalidate the preliminary notice and result in the loss of lien rights.

A proof of service affidavit is a signed declaration made under penalty of perjury by the person mailing the preliminary notice, which shows that the notice was served in accordance with the requirements of Civil Code §3097.1.   Over the past few months, proof of service affidavits have come across my desk bearing signatures that were obviously the product of a rubber stamp.  In fact, one “signature” was stamped in block letters.  Clearly, the purpose of the stamped signatures is to streamline the preparation and service of the preliminary notices and reduce writer’s cramp.   The sudden influx of stamped affidavits caused my colleagues and me to question the ramifications of this corner cutting practice.  For example, would an affidavit with a stamped signature be admissible in a legal proceeding to show compliance with Civil Code §3097.1?  The short answer is “No.”

According to California Code of Civil Procedure § 2015.5, a declaration must be in writing, certified as true under penalty of perjury, and dated and “subscribed” by the declarant (signing party).   California courts have defined “subscribe” to mean “to sign with one’s own hand.”  The reasoning behind the subscribing requirement is to ensure that declarations are made in good faith and contain truthful representations.   In the case of a stamped signature, a declarant could easily avoid the penalty of perjury by claiming that the stamped signature was affixed to the declaration by another person without the declarant’s consent.  A handwritten signature, however, has unique characteristics which are readily identifiable and attributable to the signing party.

To ensure the validity and admissibility of a California 20 Day Preliminary Notice, the best practice is to take the time and sign the proof of service affidavit “with one’s own hand.”  Failing to do so may result in the forfeiture of your lien rights and the loss of your hard earned money, should you have to try to collect unpaid invoices.