1. We are a Subcontractor and work under a GC. Our contract states that we are 'paid when paid' by GC from owner within 10 days. Trying to figure out if there is a proper time to file the intent to lien or the actual lien. For example. if it is July and we are still awaiting a payment from April's draw- is this normal protocol to file a lien? 2. What is the stance on filing a mechanic's lien for retention close the the 30 day AFTER the notice of completion is filed?
A notice of intent to lien is not required in California, so the only reason to send one is to try and motivate payment without enduring the costs to record a lien and release of lien when paid.
Recent case law has ruled that "pay-when-paid" clauses are unenforceable unless the clause provides for payment within a reasonable time. See Crosno Construction, Inc. v. Travelers Casualty and Surety Company of America (2020) 47 Cal.App.5th 940. By statute, no contract can limit mechanic's lien rights. See Civil Code section 8122.
The proper time to file a lien is going to be well in advance of the deadline to do so, which will be 30 days from a notice of completion or cessation, or 90 days from project completion. Keep in mind, that with the back up at the county recorder's office, it will take time before your lien is actually recorded. Once your work is done and a notice of completion is filed, you are entitled to retention and can file a lien if you don't receive it. By law, a contract cannot call for delay in retention payment beyond lien deadlines.
Also remember that once you record a lien, you should not perform any further work until you are paid, as this will invalidate the lien.
Another option you might consider is sending a stop payment notice. This will require to owner to withhold the money you are owed until you are paid. And you can serve stop payment notice while still performing further work.
Finally, keep in mind that as a subcontractor you in most cases only have lien rights with respect to work you performed within 20 days before sending preliminary notice. If you failed to send preliminary notice, you do not have lien rights unless you can demonstrate that the owner had actual knowledge of your work.
If you require legal assistance, email me at ryan@huntortmann.com to schedule a free telephone consultation.