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District Court of Appeal, First District, Division 2, California.

BORCHERS BROS., a California corporation, Plaintiff and Appellant, v. BUCKEYE INCUBATOR COMPANY, a division of the Buckeye Corporation, a corporation, Defendant and Respondent.*

Civ. 20152.

Decided: October 17, 1962

Bohnett, Hill & Bohnett, by Thomas D. Collins, San Jose, for appellant. Harold A. Slane, Harold Slane, Jr., Louis R. Hersh, Orlin C. Munns, by Louis R. Hersh, Glen Behymer, Los Angeles, amicus curiae in support of the contentions of the appellant. Cottrell, Hofvendahl & Roessler, by Russell V. Roessler, John N. Norman, San Jose, for respondent.

The plaintiff, Borchers Bros., brought this suit to foreclose its claim of lien for materials furnished to defendants Pierce Manufacturing Co. and Thomas Pierce, for use on real property owned by defendant Buckeye Incubator Company. The complaint failed to allege that plaintiff had given the pre-lien notice required by Code of Civil Procedure, section 1193. Defendant Buckeye Incubator Company demurred generally to the complaint. Upon the sustaining of the demurrer, plaintiff failed to amend within the 10 days allowed by the court. An order dismissing the complaint as to Buckeye Incubator Company was then entered by the court. From this order, plaintiff appeals.

Appellant's sole argument for reversal is that the notice requirement of Code of Civil Procedure, section 1193, is unconstitutional because it unfairly discriminates between laborers and materialmen. The section complained of provides in part as follows: ‘(a) Except one under direct contract with the owner or one performing actual labor for wages, every person who furnishes labor, service, equipment or material for which a lien otherwise can be claimed under this chapter, must, as a necessary prerequisite to the validity of any claim of lien subsequently filed, cause to be given not later than 15 days prior to the filing of a claim of lien a written notice as prescribed by this section, to the owner or reputed owner and to the original contractor.’ Appellant points out that this provision does not require wage laborers to give the 15 days' notice, but it does require all other lien claimants (except those under direct contract with the owner) to do so. Appellant contends that the California Constitution places materialmen and laborers in the same class and bestows no preference to one group over another.

Appellant argues that the Legislature was without authority to create preferences between laborers and materialmen and thereby alter the classification established by the Constitution.

However, this court most recently has held the notice requirement of Code of Civil Procedure, section 1193, to be constitutional. In Alta Building Material Co. v. Cameron (1962) 202 A.C.A. 330, 20 Cal.Rptr. 713, the plaintiff, having failed to give the required pre-lien notice, brought suit in the municipal court to foreclose its claim of lien for materials furnished to a plastering contractor for use upon the defendants' real property. The municipal court held the notice requirement unconstitutional and gave judgment for the plaintiff. On appeal, the appellate department of the superior court held to the contrary and directed the municipal court to enter judgment in favor of defendants. This court then accepted transfer of the cause pursuant to rule 62(a) of the California Rules of Court. In holding Code of Civil Procedure, section 1193, subdivision (a), to be constitutional, we made reference to the Reliable Steel, Hellen, and Miltimore cases; Reliable Steel Supply Co. v. Croom, 181 Cal.App.2d Supp. 831, 5 Cal.Rptr. 310; Hellen v. Stephenson, 197 Cal.App.2d Supp. 863, 18 Cal.Rptr. 361; Miltimore v. Nofziger Bros. Lumber Co., 150 Cal. 790, 90 P. 114 (relied on by appellant), and thoroughly discussed the ‘discrimination’ argument urged herein.

Appellant and the amicus curiae in support of his position have raised no issues which were not thoroughly considered by this court in the Alta case.

The order dismissing appellant's complaint as to Buckeye Incubator Company is affirmed.


KAUFMAN, P. J., and AGEE, J., concur.

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