Sobeck & Associates, Inc. v. B & R Investments No. 2

• Decision Date: 14 November 1989
• Docket Number: No. H004354,H004354
• Citation: 215 Cal.App.3d 861,264 Cal.Rptr. 156
• Court: California Court of Appeals Court of Appeals
• Parties: SOBECK AND ASSOCIATES, INC., Plaintiff and Appellant, v. B & R INVESTMENTS NO. 24, Defendants and Respondents.

Page 156

264 Cal.Rptr. 156

215 Cal.App.3d 861

SOBECK AND ASSOCIATES, INC., Plaintiff and Appellant, v. B & R INVESTMENTS NO. 24, Defendants and Respondents.

No. H004354.

Court of Appeal, Sixth District, California.

Nov. 14, 1989.

Certified for Partial Publication. ^*

Review Denied Jan. 25, 1990.

Andrew H. Swartz, Spiering, Swartz & Kennedy, John R. Joyce, Monterey, for defendants and respondents.

Steven J. Andre, Anne D. McGowan, Carmel, for plaintiff and appellant.

CAPACCIOLI, Acting Presiding Justice.

In this action to foreclose a mechanic's lien, Sobeck and Associates, Inc. appeals from a judgment in favor of B & R Investments No. 24 and Bestor Engineers, Inc. ¹ In the proceedings below, Sobeck, Inc. had amended its complaint under the fictitious names statute, Code of Civil Procedure section 474, to substitute a named defendant Sobeck, Inc. further contends that the trial court erred by permitting Bestor to intervene and add a new party, Ray Sobeck in his individual capacity, as a defendant in the lawsuit. We need not reach this issue. Sobeck the individual did not file a notice of appeal. Only the Corporation did. The judgment for Bestor was against Sobeck individually. The Corporation has not been injured by the judgment for Bestor, and that portion of the judgment is not dependent on or interwoven with the judgment in favor of B & R. Because the notice of appeal did not specify the judgment for Bestor, we lack jurisdiction to consider it. (See Gonzales v. R.J. Novick Constr. Co. (1978) 20 Cal.3d 798, 804-805, 144 Cal.Rptr. 408, 575 P.2d 1190; Winter v. Gnaizda (1979) 90 Cal.App.3d 750, 754, 152 Cal.Rptr. 700; Estate of McDill (1975) 14 Cal.3d 831, 840, 122 Cal.Rptr. 754, 537 P.2d 874.)

in place of a previously designated doe defendant. B & R asserted that the action was time-barred by Civil Code section 3144 because Sobeck, Inc. amended the complaint more than 90 days after learning the true identity of the new defendant. The trial court granted judgment for B & R without hearing evidence concerning unreasonable delay by Sobeck, Inc. or prejudice to the defendant. Sobeck, Inc. contends this was reversible error, and we agree. (See Grinnell Fire Protection Systems Co. v. American Sav. & Loan Assn. (1986) 183 Cal.App.3d 352, 228 Cal.Rptr. 292; Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 8-10, 192 Cal.Rptr. 380.)

FACTS

In 1984, Dr. Jerome Rubin and three other individuals formed a partnership and purchased real property to design and build a motel. Rubin hired Ray Sobeck to act as general contractor for the motel project. Sobeck subcontracted some of the work to others, and work on the project began in November or December 1984.

In January 1985, the architectural firm Takigawa and Associates asked Bestor Engineers, Inc., a civil engineering and surveying firm, to perform civil engineering services for the project. Bestor subsequently sent a contract form to Takigawa for execution, but it was returned signed, not by Takigawa, but by "Raymond A. Sobeck--Operations-Project Management." There was no reference in the contract to Sobeck and Associates, Inc. Bestor subsequently performed a substantial amount of work on the project (in excess of $10,000).

On November 15, 1985, Rubin borrowed $277,000 from Monterey County Bank (the Bank) and in exchange, conveyed a deed of trust for the motel property, which the Bank recorded. About November or December 1985, Rubin realized that he could not obtain funding for the motel project, and he advised Sobeck to file a lien on the property.

On December 16, 1985, Sobeck, Inc. recorded its mechanic's lien in the sum of $24,029.47, which included an amount for recovery for the work performed by Bestor. Two days later, Sobeck, Inc. filed suit to foreclose the lien. The complaint named Rubin and various doe defendants.[[-]]

In April 1986, Sobeck, Inc. learned that Monterey County Bank had an interest in the property where the motel was to be built.

In September 1986, Bestor moved to intervene pursuant to Code of Civil Procedure section 387, subdivisions (a) and (b), on the ground that Bestor had an interest in the matter in litigation adverse to both plaintiff and defendants. Bestor subsequently filed a complaint in intervention, naming as defendants, among others, Ray Sobeck individually and in his corporate guise, as Sobeck and Associates, Inc. Sobeck, Inc. demurred and moved to strike Bestor's complaint on the ground that the intervention improperly broadened the scope of the lawsuit. The trial court ruled against Sobeck, Inc. on the motion.

In April 1987, Sobeck, Inc. filed an amendment to substitute Monterey County Bank in place of a doe defendant. B & R subsequently acquired the motel property at a foreclosure sale instituted by the The action proceeded to trial without a jury. After opening statement and again at the close of Sobeck, Inc.'s evidence, B & R moved for judgment on the ground that Sobeck, Inc. had not timely filed or amended its complaint with regard to the Bank or B & R. After arguments and briefing on the issue, the court granted B & R's motion. The court did not entertain evidence concerning any prejudice to B & R from the "late" filing. The only evidence it heard concerning Sobeck Inc.'s delay centered around Sobeck Inc.'s reason for waiting to amend the complaint to name the Bank. The court did not issue a statement of decision, but appears to have concluded that Sobeck, Inc. failed timely to amend its complaint after gaining knowledge of the Bank's identity. The court also entered judgment for Bestor and against Sobeck individually in the amount of $21,566.16.

Bank, and was substituted in as a defendant in place of the Bank.

Sobeck, Inc. unsuccessfully moved to vacate the judgment or for a new trial. Sobeck, Inc. timely filed a notice of appeal, stating "Plaintiff, SOBECK & ASSOCIATES, INC., a California Corporation, Dba PROJECT MANAGEMENT, appeals from the Judgment entered against Plaintiff and in favor of Defendant, B & INVESTMENTS # 24" (sic). No notice of appeal was filed on behalf of Sobeck individually.

On appeal, Sobeck, Inc. has raised issues concerning the propriety of permitting Bestor's intervention. Bestor has moved to strike those portions of the briefs, asserting that this court lacks jurisdiction over that portion of the judgment.

ISSUES

1. Did the trial court commit reversible error by failing to require evidence of unreasonable delay by Sobeck, Inc. or prejudice to the defendant, where Sobeck, Inc. amended its complaint to substitute the Bank for a previously designated doe defendant more than 90 days after it learned the Bank's identity?

2. Does this court have jurisdiction to consider the issues raised by Sobeck, Inc. concerning the intervention of Bestor, where Sobeck individually did not file a notice of appeal?

DISCUSSION

Standard of Review

All issues in this appeal concern questions of law, which we review independently. (See People v. Bonin (1988) 46 Cal.3d 659, 676, 250 Cal.Rptr. 687, 758 P.2d 1217, cert. denied 489 U.S. 1091, 109 S.Ct. 1561, 103 L.Ed.2d 864 (1989); People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221; cert. denied 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1006 (1989); United States Lines, Inc. v. State Bd. of Equalization (1986) 182 Cal.App.3d 529, 534, 227 Cal.Rptr. 347.)

Fictitious Names Statute (Code Civ. Proc., § 474)

Sobeck, Inc. contends that the trial court erred by granting judgment in favor of B & R on the ground that Sobeck, Inc. had failed timely to amend its complaint to substitute B & R's predecessor in interest, the Bank, for a previously named doe defendant. Sobeck, Inc. argues that the trial court should have required evidence of unreasonable delay by Sobeck, Inc. and prejudice to the defendant from the amendment of the complaint. Instead, Sobeck, Inc. asserts, the court improperly granted judgment based solely on the fact that one year had passed between the time Sobeck, Inc. learned the Bank's identity and the time it amended the complaint. Such delay, alone, is not enough, according to Sobeck, Inc., to preclude the use of the relation back doctrine of Code of Civil Procedure section 474. B & R, on the other hand, argues that the trial court properly granted judgment in its favor because Sobeck, Inc. had neither filed its complaint naming the Bank within 90 days of recording the mechanic's lien nor amended its complaint within 90 days of obtaining actual knowledge of the Bank's interest in the property. We find that Sobeck, Inc.'s position is correct.

The California mechanic's lien law permits persons who furnish labor or materials on a work of improvement to file a lien on the property where the improvement is located. (Civ.Code, § 3110; Grinnell Fire Protection Systems Co. v. American Sav. & Loan Assn., supra, 183 Cal.App.3d 352, 355, 228 Cal.Rptr. 292.) The lien will terminate unless the materialman files an action to foreclose the lien within 90 days after recording it. (Civ.Code, § 3144.) One court has read into Civil Code section 3144 a requirement that the materialman must join all parties to be bound by the judgment within the 90 day period. (Grinnell, supra, 183 Cal.App.3d at p. 357, 228 Cal.Rptr. 292.)

In meeting the 90 day period for commencing the action, however, the plaintiff may rely on the fictitious names statute, Code of Civil Procedure section 474, ³ to join as yet unidentified defendants. (Id. at pp. 358-362, 228 Cal.Rptr. 292.) Section 474 permits a plaintiff to designate a defendant by a fictitious name when the plaintiff is ignorant of the true identity of the defendant. Once the plaintiff discovers the name of the defendant, he must amend the complaint accordingly. (§ 474.)

A plaintiff may use section 474 whenever he has no actual knowledge of the defendant; constructive or legal knowledge will not deprive the plaintiff of the remedy. (Grinnell, supra, 183 Cal.App.3d at pp. 359-360, 362-363, ...