Fredericksen v. Harney

• Decision Date: 16 January 1962
• Court: California Court of Appeals Court of Appeals
• Parties: Percy C. FREDERICKSEN and Clinton E. Kasier, co-partners doing business under the firm name and style of Fredericksen-Kasler, Plaintiffs and Appellants, v. Charles L. HARNEY, Defendant and Respondent. Civ. 56.

Page 562

18 Cal.Rptr. 562

199 Cal.App.2d 189

Percy C. FREDERICKSEN and Clinton E. Kasier, co-partners doing business under the firm name and style of Fredericksen-Kasler, Plaintiffs and Appellants, v. Charles L. HARNEY, Defendant and Respondent.

Civ. 56.

District Court of Appeal, Fifth District, California.

Jan. 16, 1962.

Hearing Denied March 14, 1962.

C. Ray Robinson, W. E. Craven, Charles E. Goff and Eugene A. Mash, Merced, for appellants.

Landram, Silveira, Garrett & Goul, Merced, for respondent.

CONLEY, Presiding Justice.

This is an appeal from an order denying plaintiffs' motion to vacate and discharge a stop notice by virtue of which the Department of Water Resources is withholding $205,000 due to appellants for services performed for the State in the construction of the San Joaquin River Flood Control Project. The motion was made in an action for declaratory relief filed by appellants, Percy C. Fredericksen and Clinton E. Kasler, copartners, doing business under the firm name and style of Fredericksen-Kasler, pursuant to the specific authorization of section 1190.1, subdivision (c), of the Code of Civil Procedure. The complaint alleges that the defendant on or about the 2nd day of February, 1960, filed with the Disbursing Officer of the Department of Water Resources of the State of California a verified claim and notice to withhold the sum of $205,000 from monies that were due and payable to the plaintiffs; that no or about the 24th day of February, 1960, plaintiffs filed an affidavit demanding release of said monies; and that on or about the 4th day of March, 1960, the defendant filed a counter-affidavit. Section 1190.1, subdivision (c), of the Code of Civil Procedure authorizes the motion here in question. The court, after hearing evidence, denied the motion for discharge, and the plaintiffs filed this appeal.

In the interest of clarity, a short summary of events preceding the institution of the suit is required.

The respondent Charles L. Harney and his wife, Pauline E. Harney, are the owners of lands in Merced County, some, at least, of which are riparian to the San Joaquin River. On July 29, 1959, the Sacramento and San Joaquin Drainage District, acting by and through the Reclamation Board of the State of California, filed a proceeding in eminent domain against Charles L. Harney and his wife for the purpose of condemning rights in the real property owned by them for constructing the works of the Lower San Joaquin River Flood Control Project. Among the elements of property condemned were permanent rights of way for the levees along the river, temporary rights to the use of borrow pits located on the Harney lands, and temporary rights of way for the purpose of carrying on the construction work. An order for immediate possession was made and served. In their answer in the condemnation case the Harneys claim that the value of their real property interests sought to be condemned is $325,000 and that severance damages, in addition, amount to $265,000. The case file in that suit shows that the action has not as yet been tried.

The appellants were awarded a contract for the construction of the necessary levees and other works, and pursuant to the order for immediate possession they entered the land of the Harneys and carried on the work to completion.

On December 4, 1959, Charles L. Harney and Pauline E. Harney filed a suit in the Superior Court of Merced County against the appellants herein, praying for an injunction and an award of damages alleged to have been tortiously caused as follows: $10,000 for fences; $5,000 for crops; $5,000 for trees; and $100,000 for punitive damages. That action has not been tried and is still pending.

On February 1, 1960, Mr. Harney filed the verified claim and notice to withhold with the accounting officer of the State Department of Water Resources. This stop notice claimed $205,000 of the monies payable to Fredericksen-Kasler for work on the project. It recited:

'This claim was incurred from the start of the job up to and including January 1, 1960[,] and it was for the value of the water that was used in compacting the fill and for the value of the money realized in developing water supply together with other claims covered under an action IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF MERCED Number 28130.'

Appellants filed an affidavit and demand for release of the monies claimed, and Harney filed his counteraffidavit. Thereafter, this suit was filed and the motion made to set aside the stop notice. Under the provisions of section 1190.1, subdivision (c), of the Code of Civil Procedure, the affidavit and the counteraffidavit constitute the pleadings on the motion to set aside the stop notice.

The grounds upon which appellants' motion was made were as follows: (1) that the notice of claim of lien and to withhold did not comply with the provisions of section 1190.1 of the Code of Civil Procedure; (2) that the notice of claim of lien was not a claim included within the type or classification of claims referred to in section 1190.1 of the Code of Civil Procedure; (3) that the claimant Harney was not one of the persons mentioned in sections 1181 and 1184.1 of the Code of Civil Procedure; (4) that the amount of the claim, as specified in the notice to withhold, was excessive; (5) that there was no basis in law for the claim referred to and set forth in said notice.

At the outset, respondent asserts that there is no right to appeal from the order and suggests that the appeal be dismissed. Respondent is in error as to this contention; section 963, subparagraph 2, of the Code of Civil Procedure specifically provides that an appeal may be taken from an order '* * * dissolving or refusing to dissolve an attachment, * * *.' It has been held repeatedly in this state that a stop notice is a garnishment and, therefore, a form of attachment. (Diamond Match Co. v. Silberstein, 165 Cal. 282, 288, 131 P. 874; Calhoun v. Huntington Park First Savings & Loan Ass'n, 186 Cal.App.2d 451, 459, 9 Cal.Rptr. 479; Butler v. Ng Chung, 160 Cal. 435, 439, 117 P. 512; Bates v. Santa Barbara County, 90 Cal. 543, 27 P. 438; Miles v. Ryan, 172 Cal. 205, 208, 157 P. 5; Suisun Lbr. Co. v. Fairfield School Dist., 19 Cal.App. 587, 595, 127 P. 349; Bianchi v. Hughes, 124 Cal. 24, 56 P. 610; Kimball v. Richardson-Kimball Co., 111 Cal. 386, 393, 43 P. 1111; Steineck v. Haas-Baruch Co., 106 Cal.App. 228, 231, 288 P. 1104; Risdon Iron & Locomotive Works v. Citizens' Traction Co. of San Diego, 122 Cal. 94, 54 P. 529; 32 Cal.Jur.2d, Mechanics' Liens, § 53, p. 662.) The stop notice here involved is a garnishment; in fact, section 1190.1, subdivision (h), of the Code of Civil Procedure at one point refers to it as an equitable garnishment. The common sense behind the provision of the Code of Civil Procedure allowing an appeal from an order refusing to dissolve an attachment is that no hold up security money erroneously during protracted litigation would constitute a serious wrong to the person whose property is attached. In this case, for example, if the sum of $205,000 were invested in the ordinary course of business, it would earn $14,350 per year at the legal rate of interest, and this interest might well be lost if the money were impounded during the many years of potential litigation. There is no sound reason why there should not be a rapid determination of the question whether these monies are improperly impounded.

Appellant argues that Mr. Harney is not one of the persons referred to in section 1190.1 of the Code of Civil Procedure and that therefore he would have no right under any circumstances to file a stop notice, and that he is not one of the persons specified in sections 1181 and 1184.1 of the Code of Civil Procedure. Insofar as section 1184.1 of the Code of Civil Procedure is concerned, the point is well taken, as that section is based upon work done or materials furnished '* * * at the instance or request of the owner (or any other person acting by his authority or under him, as contractor or otherwise) * * *.' Section 1181 of the Code of Civil Procedure, however, provides:

'Mechanics, materialmen, contractors, subcontractors, artisans, architects, machinists, builders, teamsters and drayment, and all persons and laborers of every class performing labor upon or bestowing skill or other necessary services on, or furnishing materials to be used to consumed in, or furnishing appliances, teams, or power contributing to, the construction, alteration, addition to, or repair, either in whole or in part, of, any building, structure, or other work of improvement shall have a lien upon the property upon which they have bestowed labor or furnished materials * * *.'

Furthermore, the provisions of section 1190.1, C.C.P., in addition to referring to the persons specified in sections 1181 and 1184.1 C.C.P., specifically give a right to file a stop notice to '* * * all persons, firms and corporations * * * performing work or furnishing materials, or both, upon any public improvement, * * *.' The answer then to the basic question posed by this litigation would depend upon whether or not Mr. Harney 'furnished materials' for the construction of the public improvement. Inasmuch as he made no contract for the furnishing of materials, the question would be narrowed to whether or not one whose materials are tortiously taken for the construction of a public improvement is entitled to a lien and whether any materials of Mr. Harney were actually so taken.

The respondent maintains that anyone whose property has been taken from him tortiously may waive the tort, rely upon the...