FULLER v. AMERICAN FOREST PRODUCTS COMPANY

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Court of Appeal, Fifth District, California.

Frank J. FULLER et al., Plaintiffs and Appellants, v. AMERICAN FOREST PRODUCTS COMPANY, Defendant and Respondent.

No. F010201.

Decided: September 08, 1988

Gordon & Rees, Peter W. Craigie, San Francisco and Michael H. Chisolm, Jackson, for plaintiffs and appellants. Riccitiello, Last, Zaletel & Garber, Michael P. Riccitiello and Robert L. Zaletel, San Francisco, for defendant and respondent.

OPINION

Plaintiffs, Frank J. Fuller and Genevieve Fuller, doing business as Amador Transit Mix & Supply Company (Transit Mix), appeal from a judgment in favor of defendant, American Forest Products Company (American), which was entered after the lower court sustained American's demurrer to plaintiffs' complaint to foreclose a materialman's lien.   As will appear, we affirm.

Transit Mix is a transit mix and supply company located in Jackson, California.   At the request of Ron Regan Construction (Regan), it supplied concrete and building supplies which were used in a work of improvement upon real property owned by American in Amador County.   The agreed price and reasonable value of the labor and materials supplied was $29,220.50.   Transit Mix was not paid.

Within 20 days after Transit Mix first furnished materials and supplies to the jobsite, it gave both American and Regan a preliminary lien notice dated September 27, 1985, pursuant to Civil Code 1 section 3097.   An exact copy of this preliminary notice is attached as an appendix to this opinion.   Transit Mix recorded its verified notice and claim of lien on February 28, 1986.

Transit Mix filed its complaint to foreclose on the mechanic's lien on May 1, 1986.   On June 27, 1986, American filed its demurrer based on the fact that the preliminary lien notice filed by Transit Mix did not comply with the requirements set forth in section 3097, subdivision (c)(5).

The matter was heard on August 1, 1986, and on October 2, 1986, the court filed its order sustaining the demurrer.   Judgment was entered for American on November 6, 1986.2

DISCUSSION

IWhether the Court Erred in Sustaining the Demurrer on the Ground that the Preliminary Notice Did Not Comply With the Requirements of Section 3097, Subdivision (c)(5)

The lower court sustained American's demurrer on the grounds that “[t]he outdated notice form did not contain the specific language required by Section 3097(c)(5) nor the bold face caption ‘Notice to Property Owners.’ ”

Section 3097, subdivision (c), provides in pertinent part:

“The preliminary notice referred to in subdivisions (a) and (b) shall be given not later than 20 days after the claimant has first furnished labor, service, equipment, or materials to the jobsite, and shall contain the following information:

“(1) A general description of the labor, service, equipment, or materials furnished, or to be furnished, and if there is a construction lender, he or she shall be furnished with an estimate of the total price thereof in addition to the foregoing.

“(2) The name and address of the person furnishing that labor, service, equipment, or materials.

“(3) The name of the person who contracted for the purchase of that labor, service, equipment, or materials.

“(4) A description of the jobsite sufficient for identification.

“(5) The following statement in boldface type:

 “NOTICE TO PROPERTY OWNER

“If bills are not paid in full for the labor, services, equipment, or materials furnished or to be furnished, a mechanic's lien leading to the loss, through court foreclosure proceedings, of all or part of your property being so improved may be placed against the property even though you have paid your contractor in full.   You may wish to protect yourself against this consequence by (1) requiring your contractor to furnish a signed release by the person or firm giving you this notice before making payment to your contractor or (2) any other method or device which is appropriate under the circumstances.”

The wording of the portion of the preliminary notice at issue in the instant case reads as follows:

“NOTICE TO OWNER

“Under the California Mechanics Lien Law any contractor, subcontractor, laborer, supplier or other person who helps to improve your property but is not paid for his/her work or supplies, has a right to enforce a claim against your property.   This means that after a court hearing your property could be sold by a court officer and the proceeds of the sale used to satisfy the indebtedness.   This can happen even if you have paid your contractor in full if the subcontractors, laborers or suppliers remain unpaid.   To preserve their right to file a claim or lien against your property, certain claimants such as subcontractors or material suppliers are required to provide you with a document entitled ‘Preliminary Notice.’   Original (or prime) contractors and laborers for wages do not have to provide this notice.   A Preliminary Notice is not a lien against your property.   Its purpose is to notify you of persons who may have a right to file a lien against your property if they are not paid.  (Generally, the maximum time allowed for filing a claim or lien against your property is ninety (90) days after completion of your project.)   TO INSURE EXTRA PROTECTION FOR YOURSELF AND YOUR PROPERTY, YOU MAY WISH TO TAKE ONE OR MORE OF THE FOLLOWING STEPS:  (1) Require that your contractor supply you with a payment and performance bond (not a license bond) which provides that the bonding company will either complete the project or pay damages up to the amount of the bond.   This payment and performance bond as well as a copy of the construction contract should be filed with the county recorder for your further protection.  (2) Require that payments be made directly to subcontractors and material suppliers through a joint control.   Any joint control agreement should include the addendum approved by the Registrar of Contractors.  (3) Issue joint checks for payment made out to both your contractor and subcontractors or material suppliers involved in the project.   This will help to insure that all persons due payment are fully paid.  (4) After making payment on any completed phase of the project and before making further payments require your contractor to provide you with unconditional lien releases signed by each material supplier, subcontractor and laborer involved in that portion of the work for which payment was made.   On projects involving improvements to a single family residence or a duplex owned by individuals, the persons signing these releases lose the right to file a claim against your property.   In other types of construction this protection may still be important but may not be as complete.   TO PROTECT YOURSELF UNDER THIS OPTION YOU MUST BE CERTAIN THAT ALL MATERIAL SUPPLIERS, SUBCONTRACTORS AND LABORERS HAVE SIGNED.”

On appeal, Transit Mix maintains that the language of its preliminary notice substantially complied with the requirements of section 3097, subdivision (c)(5), while American responds that strict, not substantial, compliance with the language provided in the statute is required.

In reaching its decision, the lower court relied upon this court's decision in Harold L. James, Inc. v. Five Points Ranch, Inc. (1984) 158 Cal.App.3d 1, 204 Cal.Rptr. 494.   In that case, we held that the language of that particular preliminary notice contained “outdated statutory language” and therefore did not “substantially comply” with the statutory requirements.3  (Id. at p. 7, 204 Cal.Rptr. 494.)   In James we went on to state:

“․ we need not speculate as to what, if any, deviations from the currently specified statutory lien language might permit a court to determine that such deviations did not render the subsequent lien unenforceable.   The extremes are easily characterized;  a misplaced comma, or incorrect spelling, would not necessarily render an otherwise perfect notice invalid.   Likewise, a complete failure to include the modifications made by the 1976 amendment to section 3097, as occurred in the present case, manifestly does make the resultant lien invalid.”  (Ibid.)

 Although speculating, after noting there was no need to do so, that “a misplaced comma, or incorrect spelling, would not necessarily render an otherwise perfect notice invalid,” James did not directly address the question of whether the precise statement set forth in section 3097, subdivision (c)(5), is necessary to the validity of a preliminary notice.   We do so now.

“It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms․

“Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion․

“Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary sense, and with the meaning commonly attributed to them.”  (Caminetti v. United States (1917) 242 U.S. 470, 485–486, 37 S.Ct. 192, 194–195, 61 L.Ed. 442.)

In San Joaquin Blocklite, Inc. v. Willden (1986) 184 Cal.App.3d 361, 228 Cal.Rptr. 842, we quoted with approval the court's statement in IGA Aluminum Products, Inc. v. Manufacturers Bank (1982) 130 Cal.App.3d 699, 703, 181 Cal.Rptr. 859, concerning the construction of section 3097:

“ ‘Obviously the substantial compliance doctrine has no application in the present case.   In construing a statute, it is the duty of the court “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., § 1858.)   When the statutory language is clear there can be no room for construction of the statute.  (Skivers v. State (1970) 13 Cal.App.3d 652, 655 [91 Cal.Rptr. 707].)  Where there is no ambiguity in the statutory language, the power to construe it does not exist.  (People v. Pacific Guano Co. (1942) 55 Cal.App.2d 845, 847–848 [132 P.2d 254].)’ ”  (San Joaquin Blocklite, Inc., supra, 184 Cal.App.3d at pp. 367–368, 228 Cal.Rptr. 842.)

With these basic rules of statutory construction in mind, we look at the language in which subdivision (c) of section 3097 was framed.   Subdivision (c) clearly states that the preliminary notice “shall contain the following information.”   It then lists subparts (1) through (4), which delineate required information that will vary with each preliminary notice, followed by subpart (5), “The following statement in boldface type.”   The required statement for the “NOTICE TO PROPERTY OWNER” is then set forth.

We conclude that the intent of the Legislature is clear and unambiguous—the preliminary notice is required to contain the precise notice statement set forth in subdivision (c)(5) of section 3097.

The notice at issue in the instant case contains much more than the statutory minimum language.   It expands upon that minimum language by more thoroughly explaining the mechanic's lien procedure itself.   It also expands upon the phrase “any other method or device which is appropriate under the circumstances” by detailing several of these methods which are available to property owners to guard against having a mechanic's lien placed upon their property.   Had it contained the required statutory language of subdivision (c)(5), it could hardly be said that the notice was legally insufficient to accomplish the purpose of adequately informing the property owner of the potential consequences resulting from a failure to pay those who supply labor and materials which are used in a work of improvement on his property.

 There is a more basic problem with this notice, however.   It is in very fine print which is difficult, if not impossible, for the unaided eye to read.  Section 3097, subdivision (c)(5), requires the entire notice to property owner statement to be in boldface print, not just the caption “NOTICE TO PROPERTY OWNER” as the parties, as well as the lower court, seem to have believed.

 “Boldface” has been defined as “[t]ype cut with thick, heavy lines so as to give a conspicuous black impression” (The American Heritage Dict. of the American Language (new college ed. 1981) p. 148, col. 1) and “a typeface with downstrokes or all strokes wide producing a relatively heavy impression.”   (Webster's Third New World Dict. (1986) p. 248, col. 2.)   It implies heavy, easily legible type which stands out from the other printing on the page.   Although, when the Legislature amended section 3097, it did not specify the size type to be used,4 it is only logical to assume the intent was that the type must be large enough to be easily read by the recipient.   Any other conclusion would negate the very purpose of the notice.

Here, apparently in a well intentioned, but overzealous, effort to redraft the notice on the form in response to the 1976 amendment, the James decision, or both, over four hundred fifty words have been shrunk and squeezed into a space measuring seven and one-half inches by three-fourths of an inch.   Although one might wonder why it was thought necessary to improve upon simple, straightforward language which had already been blessed by the Legislature, the drafter produced a very thorough notice which laudably sought to explain the mechanic's lien procedure and various safeguards to the property owner.   Unfortunately, the result was, apparently, a notice which could not fit on the standard form unless reduced to such a size that it is virtually illegible and therefore inappropriate for the purpose it was meant to serve.  (Cf. Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 521, 105 Cal.Rptr. 904 [questioning enforceability of release printed in small type on public policy grounds].)

A judgment following the sustaining of a demurrer must be affirmed if it is proper on any ground (Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 940, 41 Cal.Rptr. 508).   Because the notice, while appropriate in overall content, did not include the mandatory statutory language of subdivision (c)(5) of section 3097 and was printed in type so minute as to render it effectively useless as a proper notice, it did not comply with the requirements of section 3097, subdivision (c)(5), and was, therefore, invalid.

II

Whether the Lower Court Erred in Failing to Grant Transit Mix Leave to Amend Its Complaint

Transit Mix also contends that the lower court erred in not granting it leave to amend the complaint so that it could also allege an express promise to pay by American.   However, it is factually mistaken here in that the court did not sustain the demurrer without leave to amend, but merely sustained the demurrer.   After the demurrer was sustained on October 2, 1986, Transit Mix had 10 days in which to amend the complaint.5  It did not do so.   There was no error.

DISPOSITION

The judgment is affirmed with costs on appeal to respondent.

APPENDIX A

FOOTNOTES

FN1. All statutory references are to the Civil Code unless otherwise indicated..  FN1. All statutory references are to the Civil Code unless otherwise indicated.

2.   Although no motion to dismiss was brought following the granting of the demurrer (see Cal.Rules of Court, rule 325(f)), and American merely submitted a judgment form which was signed by the court, Transit Mix did not object to this procedure below.

3.   Section 3097 was amended in 1976.   It previously had only required the notice to contain “[a] statement that if bills are not paid in full for labor, service, equipment, or material furnished, or to be furnished, the improved property may be subject to mechanic's liens.”   (Stats. 1975, ch. 46, § 1, pp. 77–78.)

4.   Compare this with section 1677 (liquidated damages provision in printed contract for the sale of real property must be “either in at least 10–point bold type or in contrasting red print in at least eight-point bold type”) and Code of Civil Procedure section 1295, subdivision (b) (arbitration provision in medical services contract must be “in at least 10–point bold red type”).   See also Health and Safety Code section 25900 (requiring certain cautionary statements on labels to be printed “․ in a conspicuous place in type of conspicuous size in contrast to the typography, layout, or color of the other printed matter on the label”).

5.   California Rules of Court, rule 325(e) provides:  “Following a ruling on a demurrer, unless otherwise ordered, leave to answer or amend within 10 days shall be deemed granted, except for actions in forcible entry, forcible detainer or unlawful detainer in which case five calendar days shall be deemed granted.”

BEST, Associate Justice.

MARTIN, Acting P.J., and HAMLIN, J., concur.