Bill Text: CA AB2517 | 2011-2012 | Regular Session | Amended
Bill Title: Wage liens: laborers and car washing and polishing
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-05-31 - Read third time. Refused passage. (Ayes 35. Noes 29. Page 5208.). [AB2517 Detail]
Download: California-2011-AB2517-Amended.html
BILL NUMBER: AB 2517 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 16, 2012
AMENDED IN ASSEMBLY APRIL 30, 2012
AMENDED IN ASSEMBLY APRIL 16, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Eng
FEBRUARY 24, 2012
An act to amend Section 8414 of, to add Sections 8451 and
Section 8465 to, and to add Chapter 3
(commencing with Section 3000) to Title 14 of Part 4 of Division 3
of, the Civil Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2517, as amended, Eng. Wage liens: laborers and car washing and
polishing employees.
(1) Existing law provides that specified persons, including
laborers, as defined, who contribute labor, skill, or services to a
work of improvement, shall have a mechanic's lien upon the property
so improved.
This bill would authorize, until January 1, 2018, a car washing
and polishing employee to record and enforce a wage lien upon
specified real and personal property for wages and other compensation
and related penalties and damages owed the employee. The bill would
prescribe requirements relating to the recording and enforcement of
the wage lien.
(2) Existing law provides that a claimant other than a direct
contractor may not enforce a lien unless the claimant records a claim
of lien after he or she ceases to provide work, and before the
earlier of (a) 90 days after completion of the work of improvement or
(b) 30 days after the owner records a notice of completion or
cessation.
This bill would provide that a laborer may not enforce a lien
unless he or she records a claim of lien after he or she ceases to
furnish labor or services, and before the earlier of (a) one year
after completion of the work of improvement or (b) 180 days after the
owner records a notice of completion or cessation.
(3) Existing law provides that a mechanic's lien, subject to a
specified exception, has priority over a lien, mortgage, deed of
trust, or other encumbrance on the work of improvement or the real
property on which the work of improvement is situated, that (a)
attaches after commencement of the work of improvement or (b) was
unrecorded at the commencement of the work of improvement and of
which the claimant had no notice.
This bill would provide that a mechanic's lien on behalf of a
laborer shall be preferred to any lien, mortgage, deed of trust, or
other encumbrance upon the work of improvement and the site,
regardless of whether the lien, mortgage, deed of trust, or other
encumbrance attached prior to or subsequent to the commencement of
the labor or services, except that the lien would not take precedence
over a preexisting lien, mortgage, deed of trust, or other
encumbrance that was recorded prior to the commencement of the labor
or services if the laborer is shown to have had actual knowledge of
it prior to providing the labor or services.
(4)
(3) Existing law requires the court, in an action to
enforce a mechanic's lien, to allow as costs, in addition to any
other costs allowed by law, the amount paid to verify and record the
claim of lien, as specified.
This bill would provide that a laborer shall be entitled to the
court costs and attorney's fees incurred as a result of recording and
foreclosing on a mechanic's lien, and, upon award, these amounts
shall be considered part of the lien and shall relate back to the
date of recording of the lien.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 3 (commencing with Section 3000) is added to
Title 14 of Part 4 of Division 3 of the Civil Code, to read:
CHAPTER 3. CAR WASHING AND POLISHING EMPLOYEE WAGE LIENS
3000. As used in this chapter, the following terms have the
following meanings:
(a) "Car washing and polishing" means washing, cleaning, drying,
polishing, detailing, servicing, or otherwise providing cosmetic care
to vehicles. "Car washing and polishing" does not include motor
vehicle repair, as defined in Section 9880.1 of the Business and
Professions Code.
(b) (1) "Employer" means any individual, partnership, corporation,
limited liability company, joint venture, or association engaged in
the business of car washing and polishing that engages any other
individual in providing those services.
(2) "Employer" does not include any charitable, youth, service,
veteran, or sports group, club, or association that conducts car
washing and polishing on an intermittent basis to raise funds for
charitable, education, or religious purposes. "Employer" does not
include any licensed vehicle dealer or car rental agency that
conducts car washing and polishing ancillary to its primary business
of selling, leasing, or servicing vehicles. "Employer" does not
include either a new motor vehicle dealer, as defined in Section 426
of the Vehicle Code, that is primarily engaged in the business of
selling, leasing, renting, or servicing vehicles or an automotive
repair dealer, as defined by subdivision (a) of Section 9880.1 of the
Business and Professions Code, who is primarily engaged in the
business of repairing and diagnosing malfunctions of motor vehicles.
"Employer" does not include any self-service car wash or automated
car wash that has employees for cashiering or maintenance purposes
only.
(c) "Employee" means any person, including an alien or minor, who
renders actual car washing and polishing services
in any business for an employer, whether for tips or for wages, and
whether wages are calculated by time, piece, task, commission, or
other method of calculation, and whether the services are rendered on
a commission, concessionaire, or other basis.
(d) "Commissioner" means the Labor Commissioner.
3001. (a) If all of the requirements of this section are met, an
employee has a lien for the amount of wages and other compensation
and related penalties and damages owed the employee by his or her
employer on all of the following:
(1) Real and personal property owned by the employer that is
located within the state, except that if the employer is a natural
person, the lien shall not be applied to any residential
real property that is used as the employer's primary
dwelling owned by the employer .
(2) Real and personal property that is located within the
state used in a commercial car wash business
upon which the employee performed work or for which the
employee furnished materials, or bestowed labor
as part of the employee's employment , at the request of the
owner or a person acting under the owner's authority . A
lien as to the property described in this paragraph may attach only
for the time that the employee performed work on or
furnished materials for that property.
(b) (1) To establish the lien described in subdivision (a) upon
real property, the employee , or
employee representative , or the
commissioner shall record a notice of lien with the county
recorder in the county where the real property is located.
(2) The notice of lien shall include all of the following:
(A) A statement of the claimant's demand after deducting all just
credits and offsets.
(B) The name of the owner or reputed owner, if known.
(C) A general statement of the kind of work furnished by the
claimant.
(D) The name of the person by whom the claimant was employed or to
whom the claimant furnished work.
(E) For property described in paragraph (2) of subdivision (a), a
description of the site upon which the work was performed sufficient
for identification. For property described in paragraph (1) of
subdivision (a), the lien attaches to all real property owned by the
employer or subsequently acquired by the employer that is located in
any county in which the notice of lien is recorded, regardless of
whether the property is identified in the notice of lien.
(F) The claimant's address.
(3) The employee , or employee
representative , or the commissioner shall serve
the notice of lien on the real property owner and employer, as
follows:
(A) For an employer, owner, or reputed owner to be notified who
resides in or outside this state, by registered mail, certified mail,
or first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to that person at that person's residence or place
of business address.
(B) If the employer, owner, or reputed owner cannot be served by
this method, the notice may be given by registered mail, certified
mail, or first-class mail, evidenced by a certificate of mailing,
postage prepaid, addressed to the construction lender or to the
original contractor, if applicable.
(c) (1) To establish the lien described in subdivision (a) upon
personal property, the employee , or
employee representative , or the commissioner
shall record a notice of lien with the Secretary of State. The notice
shall specify the nature and amount of the wage claim, and to the
extent known, describe the property on which the lien is made, and
state that a lien is claimed on the property. Regardless of whether
the property is specifically described in the notice, the lien
attaches to all personal property owned by employer or subsequently
acquired by the employer, whether tangible or intangible. Except as
otherwise provided in this chapter, the manner, form, and place of
filing shall be as described in Chapter 5 (commencing with Section
9501) of Division 9 of the Commercial Code. The notice of the lien
shall be placed in the same file as financing statements pursuant to
Section 9522 of the Commercial Code.
(2) The employee , or employee
representative , or the commissioner shall serve a
copy of the notice by personal service to the owner in the same
manner as a summons or by mail as described in paragraph (3) of
subdivision (b).
(d) A lien under this section may be used to recover the entire
compensation package agreed to be paid to the employee, but not less
than the amount required by law to be paid to the employee, including
direct wages and compensation required to be paid to other persons
or entities, if those payments would qualify as employer payments
under Section 1773.1 of the Labor Code. The lien may be used to
recover interest on compensation from the date due, at the same rate
as for prejudgment interest, costs of filing and service, attorney's
fees, and other costs for the recording and enforcement of the lien.
(e) A lien under this section is perfected when the lien is
recorded and noticed as described in this section.
(f) A lien may be filed pursuant to this section at any time
before the expiration of the statute of limitations for the wage
claim the lien would enforce.
(g) Mistakes or errors in the claimed amount owed that the lien
would enforce do not invalidate the lien unless made with the intent
to defraud.
3002. (a) An action to enforce a lien under this chapter may be
brought by the employee , or employee
representative , or the commissioner, and may be
included in any action to enforce a right under the Labor Code, any
action brought under Chapter 5 (commencing with Section 17200) of
Part 2 of Division 7 of the Business and Professions Code, any action
brought by collective bargaining representatives, or any class
action or representative action.
(b) In order to enforce a lien under this chapter, the employee
shall demonstrate that he or she is owed wages or other compensation
and any related penalties and damages. The determination
that the employee is owed wages, compensation, penalties, or damages
may be made by the commissioner in a hearing held pursuant to Section
98 of the Labor Code or by a court.
(c) If the action is brought in an administrative proceeding
before the commissioner pursuant to Section 98 of the Labor Code, the
commissioner's determination of the amount of unpaid wages,
compensation, or related damages or penalties due the employee shall
be deemed a determination of the amount and validity of the lien
created pursuant to this chapter. If no lien has been recorded at the
time the administrative claim is filed, the commissioner may record
and notice a lien pursuant to Section 3001 on behalf of the employee.
(d)
(c) Actions pursuant to this chapter against the same
employer may be joined in a single proceeding, but the court may
order separate trials or hearings.
3003. (a) If a lien is recorded pursuant to Section 3001 and an
action to recover wages and other compensation and related penalties
and damages owed the employee has already been filed or is later
filed, that action shall also be deemed an action to enforce the lien
upon any property subject to the recorded lien. In the judgment
resulting from the action, the court may order the sale at a public
auction, or the transfer to the plaintiff of title or possession, of
any property subject to the lien. Regardless of whether the order is
made part of the judgment, a writ of sale may be issued for any
property subject to the lien at any point after a judgment for unpaid
wages is issued.
(b) If judgment is entered in favor of the employer in an action
to recover wages and other compensation and related penalties and
damages owed the employee or if the case is dismissed with prejudice,
any applicable lien shall be extinguished upon expiration of the
appeals period if no appeal is filed. If an appeal is filed, the lien
shall continue in force until all issues on appeal have been
decided. If the lien is extinguished, upon demand and 15 days' notice
by any affected party, the employee or employee representative shall
file a release of the lien in the manner prescribed by Sections
697.370 and 697.650 of the Code of Civil Procedure.
(c) To enforce the lien, an action shall be brought within one
year of the recording of the lien. If an action to enforce the lien
is not brought within one year of the recording of the lien, the lien
shall be extinguished. Upon demand and 15 days' notice by any
affected party, the employee or employee representative shall file a
release of the lien in the manner prescribed by Sections 697.370 and
697.650 of the Code of Civil Procedure.
3004. (a) A lien established pursuant to this chapter
takes precedence over all other debts, judgments, decrees, liens, or
mortgages perfected on or after January 1, 2013, except a tax lien
and a purchase-money mortgage, regardless as to whether the debts,
judgments, decrees, liens, or mortgages originated before or after
the wage lien or were perfected prior to the wage lien. An employee's
lien is effective against the employer, the estate of the employer,
or a subsequent bona fide purchaser of the property subject to the
employee's lien.
(b) All liens established
pursuant to this chapter shall have equal priority. If there are
insufficient funds to fully satisfy all perfected liens established
pursuant to this chapter, the funds resulting from the sale of
property that is subject to the liens shall be divided proportionally
among lien claimants.
3005. The employee , or employee
representative , or commissioner may recover court
costs and reasonable attorney's fees in a successful action to
enforce a lien brought pursuant to this chapter.
3006. This chapter, except for Section 3007, shall remain in
effect only until January 1, 2018, and as of that date is repealed,
unless a later enacted statute, that is enacted before January 1,
2018, deletes or extends that date.
3007. Any lien perfected under the provisions of Sections 3000 to
3006, inclusive, prior to the repeal of those sections remain in
full force and effect.
SEC. 2. Section 8414 of the Civil Code is amended to read:
8414. (a) A claimant other than a direct contractor, or a laborer
as described in subdivision (b), may not enforce a lien unless the
claimant records a claim of lien within the following times:
(1) After the claimant ceases to provide work.
(2) Before the earlier of the following times:
(A) Ninety days after completion of the work of improvement.
(B) Thirty days after the owner records a notice of completion or
cessation.
(b) A "laborer," as defined in Section 8024, may not enforce a
lien unless he or she records a claim of lien within the following
period:
(1) After the laborer ceases to furnish labor or services.
(2) Before the earlier of the following times:
(A) One year after completion of the work of improvement.
(B) One hundred eighty days after the owner records a notice of
completion or cessation.
SEC. 3. Section 8451 is added to the Civil
Code, to read:
8451. A lien provided for in this chapter on behalf of a laborer,
as defined in Section 8024, shall be preferred to any lien,
mortgage, deed of trust, or other encumbrance upon the work of
improvement and the site, regardless of whether the lien, mortgage,
deed of trust, or other encumbrance attached prior to or subsequent
to the commencement of the labor or services. However, the lien shall
not take precedence over a preexisting lien, mortgage, deed of
trust, or other encumbrance that was recorded prior to the
commencement of the labor or services if the laborer is shown to have
had actual knowledge of it prior to providing the labor or services.
SEC. 4. SEC. 3. Section 8465 is
added to the Civil Code, to read:
8465. A "laborer," as defined in Section 8024, shall be entitled
to the court costs and attorney's fees incurred as a result of
recording and foreclosing on a lien. Upon award, these amounts shall
be considered part of the lien and shall relate back to the date of
recording of the lien.
