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    You Served The Preliminary Notice: Now Prove It

    By Dale A. Ortmann, Esq.
    Part 3 of a 6-part series on the new Mechanic’s Lien Laws, effective July 1, 2012

    In Parts 1 and 2, we explained the new Preliminary Notice and how to serve it. In Part 3 of our series, we cover the new requirements for proving that the Preliminary Notice was properly served. Even if the Preliminary Notice was properly served, you must be able to prove that you did so if your Preliminary Notice is contested.

    Under prior law, a “proof of service affidavit” was required. When the Preliminary Notice was served by certified mail – the method most commonly used – the signed green card or other record of delivery from the Post Office was required in addition to the affidavit signed by the person who mailed the notice. Since the Post Office rarely retains the record of delivery for more than a few months, the signed green card was critical, but was easily lost or never signed by the recipient.

    Fortunately, the rules have changed. The “proof of service affidavit” has been replaced by a “proof of notice declaration”. Civil Code §8118. Click Here to obtain a proof of notice declaration form. When service is by certified mail, the green card is no longer required, although it is one of the alternatives allowed. The documentation which must accompany the declaration may be any one of the following:

    1. Documentation provided by the United States Postal Service showing that payment was made to mail the notice using registered or certified mail, or express mail.
    2. Documentation provided by an express service carrier showing that payment was made to send the notice using an overnight delivery service.
    3. A return receipt, delivery confirmation, signature confirmation, tracking record, or other proof of delivery or attempted delivery provided by the United States Postal Service, or a photocopy of the record of delivery and receipt maintained by the United States Postal Service, showing the date of delivery and to whom delivered, or in the event nondelivery, by the returned envelope itself.
    4. A tracking record or other documentation provided by an express service carrier showing delivery or attempted delivery of the notice.

    Recommendation: Save your receipt showing that you paid for the certified mail. That is sufficient evidence of service. Keep the proof of notice declaration and attached documentation, if any, in a safe place. If you need to enforce your mechanic’s lien, stop notice or bond rights, you will need to prove that the Preliminary Notice was properly served.

    Enough about the Preliminary Notice. In Part 4, we discuss the new progress payment and final payment waiver and release forms. These forms have also changed.

    Hunt Ortmann is still offering free in-house seminars regarding the new changes in lien law to any interested company. Hurry, these seminars are being scheduled daily. Check out our Lien Law Seminar Invitation for more information. Please email to inquire or schedule this time-sensitive seminar for your company today!

    Dale Ortmann is a Shareholder with Hunt Ortmann, a leader in California construction law and Mechanic’s Lien issues. If you have any questions about this bulletin or the changes regarding the new Mechanic’s Lien Law or Preliminary Notice Form, please contact him