Understanding Lien Activation Fee Timing
There have been two cases recently focusing on the issue of liens and lien activations fees.
In the WCAB en banc decision of Figueroa v. B.C. Doering Co., 78 CCC 439, the WCAB confirmed that lien activation fees must be paid prior to the date and time of the lien conference. As such, an afternoon lien conference requires an activation fee to be paid before 1:30 p.m. If there is no evidence that the payment was made prior to the conference, the lien must be dismissed with prejudice. A notice of intent is not required prior to the dismissal. If the lien claimant does not show proof of payment prior to the conference, the lien will be dismissed with prejudice.
Also, lien claimants have attempted to avoid the fee by arguing they didn’t receive service of required documents or that defendants have not negotiated settlement. However, in Figueroa, the WCAB also confirmed that defendant’s failure to serve documents or participate in settlement does not excuse the requirement to pay the lien activation fee prior to the conference.
As for lien trials, the lien activation fee is a bit difference. Lien activation fees went into effect in 2013. All lien conferences that occurred in 2012 did not require evidence of lien activation payment. Following January 1, 2013, any lien claimant had to show evidence of payment prior to the commencement of a lien conference. However if a lien trial, not lien conference is set in 2013, are the fees required prior the commencement of the trial?
In Mendez v. Le Chef Bakery, 78 CCC 454, it was determined that lien activation was not required for trials set in 2013 if the lien conference occurred in 2012. It was determined that a lien claimant is not required to pay a lien activation fee prior to a 2013 lien trial if the DOR and lien conference took place prior to January 1, 2013. The exception would be if there was an intervening 2013 lien conference. In such case, the lien activation would be subject to the activation requirements for the 2013 lien conference.
Ultimately this issue will be moot starting January 1, 2014 when all lien claims and costs filed as liens prior to 2013 must have the activation fee paid regardless of conference status.