Published: 2015-07-08
Key Benefits:
A public officer or employee whose property is subject to a lien or other encumbrance in violation of Section 6223 of the Government Code may petition the superior court of the county in which the person resides or in which the property is located for an order, which may be granted ex parte, directing the lien or other encumbrance claimant to appear at a hearing before the court and show cause why the lien or other encumbrance should not be stricken and other relief provided by this article should not be granted. The court shall schedule the hearing no earlier than 14 days after the date of the order. The scheduled date of the hearing shall allow adequate time for notice of the hearing.
(Added by Stats. 1998, Ch. 779, Sec. 2. Effective January 1, 1999.)
A petition under this article shall state the grounds upon which relief is requested, and shall be supported by the affidavit of the petitioner or the petitioner’s attorney setting forth a concise statement of the facts upon which the motion is based.
The petition and affidavit shall be in substantially the form prescribed by the Judicial Council.
(Added by Stats. 1998, Ch. 779, Sec. 2. Effective January 1, 1999.)
If the court determines that the lien or other encumbrance is in violation of Section 6223 of the Government Code, the court shall issue an order striking and releasing the lien or other encumbrance and may award costs and reasonable attorney fees to the petitioner to be paid by the lien or other encumbrance claimant. If the court determines that the lien or other encumbrance is valid, the court shall issue an order so stating and may award costs and reasonable attorney fees to the encumbrance claimant to be paid by the petitioner. The court may direct that such an order shall be recorded.
(Added by Stats. 1998, Ch. 779, Sec. 2. Effective January 1, 1999.)
Any lien or encumbrance claimant who records or files, or directs another to record or file, a lien or other encumbrance in violation of Section 6223 of the Government Code shall be liable to the owner of the property bound by the lien or other encumbrance for a civil penalty of up to five thousand dollars ($5,000).
(Added by Stats. 1998, Ch. 779, Sec. 2. Effective January 1, 1999.)
This article does not apply to a document which acts as a claim of encumbrance by a financial institution, as defined in subdivision (a) of Section 14161 of the Penal Code or Section 481.113 of this code, or a public entity, as defined in Section 481.200 of this code.
(Added by Stats. 1998, Ch. 779, Sec. 2. Effective January 1, 1999.)
If a lien or other encumbrance is recorded or filed in violation of Section 6223 of the Government Code, the state or local agency that employs the public officer or employee may provide counsel for the public officer or employee in an action brought pursuant to Section 765.010.
(Added by Stats. 1998, Ch. 779, Sec. 2. Effective January 1, 1999.)