Patten-Blinn Lumber Co. v. Francis, PATTEN-BLINN

• Decision Date: 16 December 1958
• Docket Number: PATTEN-BLINN
• Court: California Court of Appeals Court of Appeals
• Parties: LUMBER CO., Plaintiff and Appellant, v. John S. FRANCIS and Self-Realization Fellowship Church, Inc., et al., Defendants, Self-Realization Fellowship Church, Inc., Respondent. Civ. 22895.

Page 255

333 P.2d 255

166 Cal.App.2d 196

PATTEN-BLINN LUMBER CO., Plaintiff and Appellant, v. John S. FRANCIS and Self-Realization Fellowship Church, Inc., et al., Defendants, Self-Realization Fellowship Church, Inc., Respondent.

Civ. 22895.

District Court of Appeal, Second District, Division 1, California.

Dec. 16, 1958.

Thompson, Royston, Wiener & Moss, Los Angeles, for appellant.

Stuart B. Walzer, Beverly Hills, for respondent.

WHITE, Presiding Justice.

This is an action for foreclosure of a mechanic's lien. It was instituted in the Superior Court of Los Angeles County by plaintiff against John S. Francis, a general contractor and Self-Realization Fellowship Church, Inc. Subsequent to the commencement of the action, defendant John S. Francis received a discharge in bankruptcy, and as to him, the action was dismissed.

The material and relevant facts are that in June, 1955, defendant Self-Realization Fellowship Church, Inc., entered into a contract with defendant John S. Francis, a licensed contractor, under the terms of which the latter would erect a classroom and printshop building on property belonging to defendant church. Defendant contractor agreed to furnish all necessary labor and materials to be used in the construction of said building. The church paid the contractor the full cost of materials and labor in advance of the construction of the aforesaid building. Instead of using this money on the church job, defendant contractor applied the money received by him to liquidate other obligations.

On December 30, 1955, a claim of lien against defendant church was recorded by plaintiff lumber company pursuant to the provisions of Section 1193.1 of the Code of Civil Procedure. The claim covered certain building materials used in the construction of the foregoing building, and for which materials there remained an unpaid balance of $4,050.82. The instant action to foreclose on the mechanic's lien was filed on March 27, 1956, within 90 days after filing of the claim of lien as required by Section 1198.1 of the Code of Civil Procedure. However, no notice of pendency of the present action was filed until May 9, 1956. This was more than 90 days after recordation of the claim of lien as provided for in Section 1198.1(a) of the Code of Civil Procedure.

In the court below, plaintiff lumber company and defendant church agreed that no issues of fact were involved in the case at bar, and that the sole issue was one of law. Thereupon, they entered into a written stipulation which in part, provided that all of the allegations in the complaint were true and that the matter might stand submitted on the pleadings and papers on file therein. The stipulation further provided that the sole issue between the parties was the contention of defendant church that the recording of a notice of pendency of action more than 90 days after the recordation of the claim of lien herein barred the further prosecution of this action. By an oral stipulation in open court on April 22, 1957, plaintiff acknowledged that Self-Realization Fellowship Church, Inc., had paid the full price of materials and labor for the construction of the buildings in question and that said moneys had been paid to John S. Francis, the general contractor.

The trial court held that the action to foreclose the claim of lien was barred by Section 1198.1(a) of the Code of Civil Procedure in that a notice of pendency of action was not filed within 90 days after recordation of the claim of lien. Judgment was accordingly entered for defendant church, from which plaintiff lumber company prosecutes this appeal.

It is conceded that the sole issue presented on this appeal involves the proper construction to be given to Section 1198.1(a) of the Code of Civil Procedure, as amended in 1953. As so amended, that section now reads:

'(a) No lien provided for in this chapter binds any property for a longer period than 90 days after the same has been filed except as hereinafter provided, unless within that time, proceedings to enforce the same be commenced in a proper court and a notice of pendency of such proceedings be filed as provided in Section 409.' (Emphasis added.)

The change which the 1953 amendment made in the aforesaid section and which is important on this appeal, was the addition of the above italicized phrase 'and a notice of pendency of such proceedings be filed as provided in Section 409'. It is appellant's contention that an action to foreclose a mechanic's lien is not barred as against a party to that action by failure to file a notice of the pendency of the action, while respondent earnestly insists that the section in question is jurisdictional.

It is true, as urged by respondent, that 'In the construction of a statute or an instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted * * *' (Code Civ.Proc. Sec. 1858). However, this is followed by Section 1859 of the same code which provides that 'In the construction of a statute the intention of the Legislature * * * is to be pursued, if possible'.

It is noteworthy that in the 1953 amendment to the code section here in question, the legislature added the language, 'and a notice of pendency of such proceeding be filed as provided in Section 409'. Obviously, reference must be had to Section 409 to determine the scope of the requirement imposed upon the lien claimant. Section 409 clearly and unequivocally provides that 'from the time of filing such notice for record only, shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action * * *'.

In the case of Lee v. Silva, 197 Cal. 364, 373, 240 P. 1015, 1018, our Supreme Court stated that, 'The purpose of a lis pendens is merely to furnish a means of notifying all persons of the pendency of an action, and thereby to bind any person who may acquire an interest in property, subsequent to the institution of the action, by any judgment which may be secured in the action affecting the property.'

In Blackburn v. Bucksport, etc., R. R. Co., 7 Cal.App. 649, 653, 654, 95 P. 668, 670, in holding that failure to record a lis pendens was immaterial as against a party to the action who had actual notice of its pendency, and participated in it, as did respondent herein, the court had this to say: '* * * it is unimportant whether a lis pendens was or was not recorded, so far as this appellant is concerned. He voluntarily submitted himself to the jurisdiction of the court in the case, and we do not think, as we have already indicated, that the mere omission to file for record the notice of the pendency of the action affects the question of the court's jurisdiction of the subject-matter of the litigation. In other words, we do not think, as counsel's argument upon this point necessarily assumes, that the filing of the notice of the pendency of the action with the county recorder is an essential prerequisite to investing the court with jurisdiction of the subject-matter of a suit in which the recordation of such a notice is required. A lis pendens, or the filing for record with the recorder of a notice of the pendency of a suit involving the title to or right of possession of real property, is the mode substituted by the Legislature for the constructive notice to all the world of the pendency of such an action which formerly arose ipso facto, upon the institution of the suit. Thus 'a purchaser or encumbrancer of property, instead of being required to examine all the suits pending in the courts to ascertain whether any of them relate to or affect the real estate he is negotiating about, has now only to examine the notices of lis pendens filed in the recorder's office of the county where the real estate is situated.' Sampson v. Ohleyer, 22 Cal. , 211. The purpose of the legislature was thus to furnish the most certain means of notifying all persons of the pendency of the action and thereby warning them against attempting to acquire a legal or equitable interest in the property concerning which the suit was brought, and to bind such persons as might acquire any interest in the property in controversy after the recording of the notice by any judgment which might be secured affecting said property. This is all that the Legislature intended by the present mode of giving constructive notice of the pendency of such actions, and the legislation does not, as we before observed, nor was it intended that it should, affect in the slightest degree the question of the court's jurisdiction of the subject-matter of the suit or of the persons of the parties thereto.' (Emphasis added.) See also Housing Authority of City of Oakland v. Forbes, 51 Cal.App.2d 1, 9, 10, 124 P.2d 194.

In actions to quiet title in favor of an adverse possessor (Code Civ.Proc. Sec. 749), wherein the section makes it compulsory within ten days after the filing of a complaint to file a notice of pendency of the action, it has been held that failure to file such notice is immaterial as to a party to the action (Blackburn v. Bucksport, etc., R. R. Co., supra, 7 Cal.App. at page 652, 95 P. at page 669).

Section 755 of the Code of Civil Procedure dealing with actions for partition provides that, 'Immediately after filing the complaint in the Superior Court, the...