Home>Levelset Community>Legal Help>Filed a preliminary notice directly to GC but later in the job was asked to do work under another sub for the same project. However, I did not file a preliminary to the sub. Now I'm not getting paid. Do I have any rights?
Filed a preliminary notice directly to GC but later in the job was asked to do work under another sub for the same project. However, I did not file a preliminary to the sub. Now I'm not getting paid. Do I have any rights?
Filed a preliminary notice directly to GC but later in the job was asked to do work under another sub for the same project. However, I did not file a preliminary to the sub. Now I'm not getting paid. Do I have any rights?
1 reply
Oct 17, 2018
I'm sorry to hear about that. First, it's worth noting that best practice is likely to send out a prelim on every contract - regardless of whether multiple contracts exist on the same project. Sending notice has a ton of benefit, and little downside. Going strictly from the text of the California Civil Code, though, failing to send a second notice might not necessarily be fatal to lien rights. This is especially true when the claimant was first hired by the job's prime contractor. Under § 8206 of the California Civil Code, "Except as provided in subdivision (b), a claimant need give only one preliminary notice to each person to which notice must be given under this chapter with respect to all work provided by the claimant for a work of improvement." Now, subdivision (b) of that section states that "If a claimant provides work pursuant to contracts with more than one subcontractor, the claimant shall give a separate preliminary notice with respect to work provided pursuant to each contract." The bolded portion of that quote seems to be an important distinction here - if a claimant has two contracts, but one is with the prime contractor (and one is with a subcontractor), under this provision it would appear that only one preliminary notice would be necessary. Section (c) of § 8206 provides a little more color. It states that "A preliminary notice that contains a general description of work provided by the claimant through the date of the notice also covers work provided by the claimant after the date of the notice whether or not they are within the scope of the general description contained in the notice." Thus, based on the text above, it would appear that when working under two separate contracts with the prime contractor and a subcontractor in California, sending only one notice may be acceptable in preserving lien rights. But again - sending separate notices based on both contracts would seem to be a safer option. Further, regardless of whether a claimant will have the right to file a valid and enforceable lien, utilizing a Notice of Intent to Lien is an effective tool to compel payment. Because mechanics liens are such a strong remedy, this "lien warning" goes a long way. Further, mechanics lien rights aren't the only rights working to enforce payment. California is home to strong prompt payment and retainage rules that can also be leveraged into payment - and if all else fails, filing suit under these laws can be fruitful too.