Rushing v. Powell

• Citation: 130 Cal.Rptr. 110,61 Cal.App.3d 597
• Court: California Court of Appeals
• Decision Date: 27 August 1976
• Parties: Erie RUSHING, Plaintiff, Cross-defendant and Respondent, v. Dorothy POWELL et al., Defendants, Cross-complainants and Appellants, Keith Hutchison, Cross-defendant and Respondent. Civ. 2500.

Page 110

130 Cal.Rptr. 110

61 Cal.App.3d 597

Erie RUSHING, Plaintiff, Cross-defendant and Respondent, v. Dorothy POWELL et al., Defendants, Cross-complainants and Appellants, Keith Hutchison, Cross-defendant and Respondent.

Civ. 2500.

Court of Appeal, Fifth District, California.

Aug. 27, 1976.

Lyman D. Griswold, Louis F. Bissig, Michael E. LaSalle and Steven W. Cobb, Hanford, for appellants.

Moran, Stringham & Rogers and William J. Kadi, Tulare, for respondents.

OPINION

GEORGE A. BROWN, Presiding Justice.

The defendants and cross-complainants, Dorothy Powell and Virginia Jehnzen doing business as El Monte Mobile Home Village, appeal from a judgment ¹ entered in favor of plaintiff, Eric Rushing, and cross-defendants, Eric Rushing and Keith Hutchison, after a trial by the court sitting without a jury. The first cause of action is for the sum of $5,107.40, representing the amount due for services performed and materials furnished by plaintiff to the defendants pursuant to a written contract for the construction of a swimming pool. The second and third causes of action are common counts for the sum of $198.73. The cross-complaint sought damages for alleged breach of contract and failure to construct the pool in accordance with the plans and specifications.

The defendants and cross-complainants do not challenge on this appeal the implied finding that the contract was breached by them and that they are not entitled to recover on their cross-complaint, but are urging only that the trial court erred in holding that the plaintiff properly complied with the California fictitious business name statute (BUS. & PROF.CODE, S 17900² et seq.--particularly § 17918 ³ and in determining that plaintiff had substantially complied with the Contractors License Law (§ 7000 et seq.--particularly § 7031). ⁴

Plaintiff held an individual contractor's license as a concrete contractor, referred to as Class C-8. One Junior Ray Anderson was licensed by the state as a swimming pool contractor, referred to as Class C-53. Each license category is issued to authorize the licensee to engage in the specialty contracting business in the particular field of work for which his license is issued and each is prohibited from acting in the capacity of a contractor in any classification other than the one in which he is classified. (Cal.Admin.Code, pool contractor's license through the

On January 13, 1969, plaintiff and Anderson entered into a verbal arrangement whereby they obtained from the California Contractors' State License Board a joint license to engage in swimming pool construction (Class C-53) under the name of Stardust Pools. Stardust facially qualified for the issuance of the joint swimming pool contractor'slicense through the appearance of Anderson, who was represented to be a member of Stardust, under the provisions of section 7068 ⁵ and California Administrative Code, title 16, sections 717, ⁶ 718 ⁷ and 724. ⁸ Because Anderson was already licensed as a swimming pool contractor, the examination and demonstration of fitness usually required of applicants (see Cal.Admin.Code, tit. 16, §§ 764, 765) were waived. (See Cal.Admin.Code, tit. 16, § 774.)

In return for the use of Anderson's name to procure the C-53 license in the name of Stardust Pools, plaintiff transferred to Anderson equipment valued at $6,000. The evidence is without contradiction that Anderson at no time performed any function whatsoever in the management or operation of the business. He participated in no pool construction, was not consulted in connection therewith, shared no management prerogatives and incurred no profit opportunity. Moreover, for a period of time in 1969 and 1970, ending on October 15, 1970, plaintiff associated himself with one Lewis G. Galloway in a partnership doing business as Stardust Pools and no notification of the change was sent to the Contractors' State License Board. Thereafter, and on April 29, 1971, plaintiff filed a 'Notice of Dissolution of Partnership and Certificate of Doing Business Under Fictitious Name' in which he certified under penalty of perjury that '(t)he business . . . will be conducted by the undersigned, Eric A. Rushing, . . . under the fictitious name of Stardust Pools.' This individual fictitious name certificate is the certificate upon which plaintiff relies in this proceeding as demonstrating compliance with section 17918 (see fn. 3, Ante).

The contract which is the subject of this suit was signed by cross-defendant Keith Hutchison, who was a salesman on behalf of Stardust Pools, and the defendants on June 30, 1972, and performance thereunder was allegedly completed on or about August 15, 1972. ⁹

The issues of failure to comply with the fictitious business name statute and the Contractors License Law were raised by demurrer and again at the pretrial conference and by motion for nonsuit. At the conclusion of the evidence the court entered its findings of fact and conclusions of law in which it found that the Contractors License Law had been substantially complied with, that a valid fictitious name certificate was not on file, and concluded that the plaintiff was entitled to judgment for the amounts prayed and ordered that the action be abated until such time as a fictitious business name statement was filed showing Anderson and plaintiff had done business as Stardust Pools.

Approximately one month later, on May 15, 1974, the court took judicial notice that the fictitious name statute had been complied with when 'a Fictitious Business Name Statement showing that plaintiff Eric Rushing and Junior Ray Anderson formerly did business as Stardust Pools was filed with the Clerk of Tulare County on April 10, 1974 and that an Affidavit showing publication of the Statement was filed with the Tulare County Clerk on May 9, 1974. . . .' The court thereupon signed and entered a money judgment for the plaintiff.

Since the result herein will turn in large measure upon the proper interpretation of the applicable statutes, a brief review of certain well established rules of interpretation will guide the way. Statutes must be given a fair and reasonable interpretation, with due regard to the language used and the purpose sought to be accomplished. (Cedars of Lebanon Hosp. v. County of L.A. (1950) 35 Cal.2d 729, 734--735, 221 P.2d 31; People v. Sciortino (1959) 175 Cal.App.2d Supp. 905, 908--909, 345 P.2d 594.) Words of a statute must be given such interpretation as will promote rather than defeat the general purpose and policy of the law. (City of L.A. v. Pac. Tel. & Tel. Co. (1958) 164 Cal.App.2d 253, 256--257, 330 P.2d 888.) Moreover, legislative intent should be gathered from the whole act rather than from isolated parts or words. (People v. King (1952) 115 Cal.App.2d Supp. 875, 878, 252 P.2d 78; People v. Sciortino, supra, 175 Cal.App.2d Supp. 905, 909, 345 P.2d 594.) The object sought to be achieved by the statute and the evil sought to be prevented are of prime consideration in its interpretation. (Freedland v. Greco (1955) 45 Cal.2d 462, 467, 289 P.2d 463.) Finally, although the courts are not at liberty to impute a particular intention to the Legislature when nothing in the language of the statute implies such intention, where the main purpose of the statute is expressed the courts will construe it so as to effectuate that purpose by reading into it what is necessary or incident to the accomplishment of the object sought. (See Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 810--811, 151 P.2d 505; Struckman v. Board of Trustees (1940) 38 Cal.App.2d 373, 376, 101 P.2d 151.) See Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 769, 502 P.2d 1049, 1057:

'Once a particular legislative intent has been ascertained, it must be given effect "even though it may not be consistent with the strict letter of the statute." (Citation.) As we stated nearly a half century ago in In re Haines (1925) 195 Cal. 605, 613, 234 P. 883, 886: "The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act."'

Turning first to the contractor's license issue, it is settled that the law is intended to protect the public against dishonesty and incompetence in the operation of the contracting business and in the performance of contract services. (Lewis & Queen v. N. M. Ball Sons (1957) 48 Cal.2d 141, 149--150, 308 P.2d 713; Vitek, Inc. v Alvarado Ice Palace, Inc. (1973) 34 Cal.App.3d 586, 594, 110 Cal.Rptr. 86.) ¹⁰

The Supreme Court has also made clear that 'Section 7031 ¹¹ represents a legislative determination that the importance of deterring unlicensed persons from engaging in the contracting business outweighs any harshness between the parties, and that such deterrence can best be realized by denying violators the right to maintain any action for compensation in the courts of the state.' (Lewis & Queen v. N. M. Ball Sons, supra, 48 Cal.2d at p. 151, 308 P.2d at p. 719; Vitek, Inc. v. Alvarado Ice Palace, Inc., supra, 34 Cal.App.3d at p. 592, 110 Cal.Rptr. 86.) An essential ingredient to the accomplishment of this public purpose is assurance that persons performing particular types of specialty contracting are qualified by training and experience. To hold that a person not so qualified can nevertheless act as a contractor in the particular field of work would be inimical to that purpose and objective and would emasculate certain clear expressions of the act. The plaintiff herein was not required to personally qualify as a swimming pool contractor by taking an examination or demonstrating his competence but was able to participate in the business of...