REEDER LATHING CO v. FRANCIS ALLEN (1966)

Plaintiff, a licensed lathing contractor, sued to foreclose mechanics liens representing labor and materials furnished defendant, at his instance and request, in the construction of houses and appurtenant structures on some eighteen lots owned by defendant.   An answer, which included affirmative defenses, was filed.   Thereafter plaintiff moved for summary judgment.   Upon consideration of the declarations, pro and con, the motion was granted and the answer (as amended) ordered stricken;  a subsequent motion by defendant for reconsideration was denied.   From the ensuing judgment defendant appeals.¹

The background facts are as follows:  In June of 1963 defendant entered into a written contract with West Valley Plastering, Inc., the prime contractor, to furnish the lathing and plastering services and materials incident to the construction of defendant's houses.   Thereafter, but prior to July 22 of the same year, plaintiff orally subcontracted with West Valley to supply the lathing materials and services for defendant's job;  it commenced work on July 22 and continued until completion on March 8, 1964.   Defendant's agreement with West Valley provided that the former would pay the prime contractor 40% of the contract prime upon completion of the lathing work, 50% of such price upon completion of the exterior brown and interior finish, and the remainder (10%) when the third coat was completed.   Pursuant thereto, defendant's construction lender made progress payments to West Valley in return for which releases of mechanics' liens were given by West Valley;  similar releases were forthcoming from the lathing laborers and from Thomas Building Supply Co.   In February of 1964 plaintiff company orally notified defendant that it had furnished labor and material for defendant's houses and intended to exercise its lien rights.   It seasonably did so on April 16 by filing for record a claim of lien against the subject properties.   Defendant, of course, could have protected himself, at the outset of the construction program, by requiring West Valley, which apparently went bankrupt, to post bond (Code Civ.Proc., § 1185.1(d));  not having done so, as plaintiff points out, he had the obligation of determining with some degree of certainty who in fact had supplied the labor and materials.

The complaint makes reference to plaintiff's contract with West Valley and contains allegations that lathing services and materials were furnished pursuant thereto in sums therein stated (totalling $20,276.92);  plaintiff further alleged that it had no interest in defendant's contract with West Valley, other than as subcontractor, and that it had neither given nor authorized the giving of any mechanic lien releases embracing the construction work in suit.   Finally, after mention of the filing of its lien, plaintiff alleged that its work was done at defendant's special instance and request;  judgment was prayed for in the dual respects above stated.

Defendant's answer (as amended) denied that plaintiff had furnished the materials sued upon.   By way of affirmative defense the pleading alleged that West Valley and plaintiff were joint ventures in the particular enterprise and that the former acted as the latter's agent in providing the releases given defendant.   Invoking the doctrine of estoppel, it was also alleged (but on information and belief) that at all times here material plaintiff and West Valley had an agreement whereby plaintiff would supply credit to West Valley for defendant's job (and those of others) in return for which plaintiff would share in the profits performed by the latter;  that pursuant thereto any releases of liens furnished by West Valley were with plaintiff's consent.   Still further by way of affirmative defense, and likewise on information and belief, it was alleged that plaintiff and West Valley conspired to defraud defendant by entering into the secret agreement above mentioned and forcing defendant to pay twice for the same services and materials.

 Preliminarily, it is not competent for the owner and prime contractor by any term of their contract to waive, affect or impair the claims or liens of other persons, whether with or without notice, and any term of a contract to the contrary is null and void.  (Code Civ.Proc., § 1187.–1.)   The only manner in which such a lien can be waived is with the written consent of the claimant.  (Code Civ.Proc. § 1187.1, supra.)   It is the rule, however, that “Waiver of mechanic's lien rights does not require a formal contract, but may be inferred from the circumstances and the conduct of the parties.”  (E.K. Wood Lumber Co. v. Higgins, 54 Cal.2d 91, 94, 4 Cal.Rptr. 523, 525, 351 P.2d 795.)   In its amended answer defendant has alleged facts, albeit on information and belief, which might establish conduct on plaintiff's part constituting the waiver of lien rights found to exist in the Wood case;  however, in a summary judgment proceeding, such as this is, neither party can rely on his or its verified pleading alone.  (Coyne v. Krempels, 36 Cal.2d 257, ,223 P.2d 244.)   As there expressly stated:  “Since under that section [Code Civ.Proc., § 437c] an answer may be stricken out, even though a perfect defense may be stated therein, unless the defendant by his affidavits shows facts to substantiate the defense' [citations], a failure to file affidavits shows facts to substantiate the defense' [citations], a failure to file affidavits showing such facts cannot be remedied by resort to the allegations or denials of a verified answer.”  (Pp. 262–263, 223 P.2d p. 247.)   Hence, “If it appears from an examination of the affidavits that no triable issue of fact exists, and that the affidavits in support of the motion state facts which, if proved, would support a judgment in favor of the moving party, then summary judgment is proper.”  (Cone v. Union Oil Co., 129 Cal.App.2d 558, 562, 277 P.2d 464, 467.)   Accordingly, to decide whether summary judgment was called for in the instant case, we must determine two issues:  (1) Do the declarations (which are equivalent to an affidavit under section 2015.5, Code Civ.Proc.) in support of the moving party, strictly construed as we are required to construe them, state facts sufficient to sustain a judgment in its favor;  and (2) do the declarations in opposition to the motion, liberally construed, show such facts as may be deemed sufficient to present a triable issue of fact.

 We address ourselves first to that portion of the judgment which decrees that defendant is personally liable to plaintiff in the sum of $20,276.92 plus interest in an amount determined and costs.²  While the complaint alleges that plaintiff furnished the materials at the special instance and request of defendant, there is no such averment or statement in the supporting declaration of Robert Reeder, as plaintiff's president.   The declaration of Robert Thomas in support of the motion is similarly silent.   The rule is well established that in the absence of contractual privity the right to enforce a mechanic's lien against real property does not give rise to personal liability on the part of the owner.   (Roberts v. Security T. & S. Bank, 196 Cal. 557, 573–574, 238 P. 673;  Golden Gate B.M. Co. v. Fireman, 205 Cal. 174, 177–178, 270 P. 214;  Rogers v. Whitson, 228 Cal.App.2d 662, 673, 39 Cal.Rptr. 849.)   Too, section 1182, Code of Civil Procedure, is of no assistance to plaintiff since that statute (making a contractor, subcontractor or other person having charge of the construction of a building, the agent of the owner) does not apply to an agency relationship such as will make the owner personally liable to a third person with whom he has no contract.  (32 Cal.Jur.2d p. 801, § 166.)   Even if the above authority were not controlling, plaintiff states in its brief (p. 8) that it “is not asking for a personal judgment” and therefore “the general and specific denials of any personal indebtedness of the defendants to the plaintiff are meaningless in an action to assert a lien against them.”   But there need be no denial by defendant in its answer nor any counter-affidavit bearing on the present point.   To recover under our summary judgment law, plaintiff must first file a sufficiently supportive affidavit before defects, if any, in an opposing affidavit need be considered.   (Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 351, 333 P.2d 142.)   In the present state of the record, including plaintiff's statement above quoted, that portion of the judgment decreeing a money judgment against defendant personally cannot stand.

Our determination must be otherwise with respect to the remaining portion of the judgment which further decrees that each of the remaining lots therein described by impressed with mechanics' liens of the plaintiff to the extent of 1/18118 of the judgment, that each of said lots be sold at public auction after the period of time for redemption has expired and the proceeds of such sales applied to the satisfaction of the sum found due to plaintiff.   The supporting affidavits or declarations of Reeder and Thomas, singly or in combination, set forth the following evidentiary facts to which, it is asserted, each could testify if called as a witness:  Plaintiff as a licensed contractor did the work it claimed to have done on the subject buildings owned by defendant and has not been paid therefor;  it is one of the persons (a subcontractor) for whose benefit the mechanics' lien laws are available;  the amount claimed is fair and reasonable;  the lathing materials were purchased by plaintiff from a supply house;  West Valley contracted with defendant to lathe and plaster the several houses;  plaintiff as subcontractor agreed to lathe each of said houses for a stated sum;  plaintiff lien was recorded within the prescribed time and contained the necessary information;  at least 15 days' notice of plaintiff's intention to lien was furnished;  finally, plaintiff had no agreement with West Valley to share in the profits (or losses) as a joint venturer.

 None of the above statements appears to be challenged either by defendant's answer or the counter-declarations filed, save and except as they pertain to the materials furnished and the matters set forth in the various affirmative defenses concerning plaintiff's asserted joint venture agreement with West Valley.   Since such defenses are said to involve triable issues, we examine the sufficiency of the written opposition to plaintiff's motion bearing thereon.   First, it is stated by defendant Allen that Thomas Supply, not plaintiff, furnished the lathing materials to West Valley, such materials being delivered by Thomas to the job sites.   But neither the bill of sale nor other evidentiary matter accompanies the counter-declaration in that regard, and accordingly the statement is a mere conclusion of law and wholly deficient to support a determination adverse to plaintiff under our summary judgment procedure.  (Murphy v. Kelly, 137 Cal.App.2d 21, 28, 289 P.2d 565;  see also Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 363–364, 333 P.2d 133.)   Likewise conclusional in character are averments relating to releases obtained by West Valley from latherers and materialmen (but not plaintiff) since the releases themselves did not accompany the declaration and it is lacking, therefore, in evidentiary facts sufficient to constitute a link in the defense asserted.   As declared in Low v. Woodward Oil Co., Ltd., 133 Cal.App.2d 116, 283 P.2d 720, “Under such circumstances, where the affidavit of the movant depends upon written documents, or a verified or certified copy of such instruments.  [Citation.]”  (P. 121, 283 P.2d p. 723.)   A supplementary counter-declaration by defendant does, however, comply with the requirement above quoted;  attached thereto are vouchers drawn on the construction lender and releases executed on behalf of Thomas Supply in favor of Allen Industries to the account of West Valley Plastering, Inc.   But there is no showing that plaintiff authorized the execution of the releases, nor is there any explanation by defendant for his failure to be governed by the following notation on one of the vouchers (Exh. B–2) to a plastering company whose issuance he approved:  “RELEASE FROM LATHER MUST ACCOMPANY.”   As plaintiff properly points out, such notation indicates that defendant then knew that a lathing contractor (independent of the plasterer) was involved in the work being performed;  since defendant has claimed an estoppel on plaintiff's part to deny its authorization of the releases furnished, he cannot invoke that doctrine unless it can be shown that at all material times he was ignorant of the true state of facts.  (Safway Steel Products, Inc. v. Lefever, 117 Cal.App.2d 489, 494, 256 P.2d 32.)

 Likewise deficient for summary judgment purposes is the counter-affidavit of George Magit, plaintiff's attorney.   To establish some financial tieup among plaintiff, Thomas Supply Co. and another concern, Deering Building Supply, reference is made to an application by Deering to the California Corporation Commissioner for a permit to issue stock—Deering, it is averred, took over Thomas several months prior to March of 1964 (which would be at or about the time when Thomas was furnishing releases to Allen Industries) and the application called for the issuance of stock to Reeder (plaintiff's principal officer) as well as to one Powers, the latter's father-in-law.   Since the original application did not accompany the affidavit, we are asked to take judicial notice of the public records of an official state agency.   The rule, however, is the same in proceedings of this kind with respect to public documents as it is to private instruments.  (Family Service Agency of Santa Barbara v. Ames, supra, 166 Cal.App.2d 344, 333 P.2d 142.)   As there stated:  “[M]atters of record cannot be proved by parol and must be established by certified copies of a transcript of the record.”  (P. 350, 333 P.2d p. 145.)   Accordingly, the same rule governs matters in the Magit affidavit relating to the pleadings in actions pending by plaintiff against other defendants, including the declarations of Raymond Croteau and Addis Johnston in opposition to the motion of plaintiff in the latter's suit against George C. Ganzberg, et al.   Neither of the declaration is certified to;  too, none of these actions had apparently reached the judgment stage.   We are, therefore, at a loss to discover what ponderable legal significance is attachable thereto in the absence of some original transcript of proceedings to which reference could be made.   As presently filed, they are inadmissible by virtue of their incompetency.  Flores v. Arroyo, 56 Cal.2d 492, 15 Cal.Rptr. 87, 364 P.2d 263, relied on by defendant for the proposition that a court can take judicial notice of court records, is not in point since it did not involve a proceeding for summary judgment;  furthermore, the court record of which judicial notice was taken in Flores was a judgment and not, as here, material filed by a party prior to the final determination of the litigation.

 For all of the above reasons, therefore, we cannot hold that defendant has established a triable issue of plaintiff's asserted waiver of its mechanics' liens either by estoppel or on the theory of agency by way of participation in a joint venture.

 As an additional assignment of error, defendant argues that the court abused its discretion in denying his motion for reconsideration.   Such motion was accompanied by the counter-declarations, of Mr. Johnston and Mr. Croteau which, in great measure, duplicate their declarations in the Ganzberg case;  instead of bearing the title of that cause, however, the title of the present action is substituted, and both documents were executed after the court, by minute order, had granted, plaintiff's motion.   The excuse given by defendant's counsel for his earlier failure to present the two documents in their present setting was his unaware of the existence of the additional facts stated therein although, by originally incorporating the declarations filed in the Ganzberg case, he must have known the identity of each declarant and his asserted familiarity with the subject controversy.   Citing Keppelman v. Heikes, 111 Cal.App.2d 475, 245 P.2d 54, plaintiff concedes that reconsideration of a prior ruling is directed to the court's sound discretion.   In that case it appeared that counsel had contracted the proposed witness and knew the character of his proposed testimony;  under such circumstances, it was held on appeal, the court properly denied the motion for reconsideration.   As shown above, in our case counsel admittedly knew at least the substance of the proposed testimony and he should have known, since the Ganzberg action was presumably then current, where the declarants could be personally contacted—certainly no good excuse is given by counsel for his failure to do so.   We find no abuse of discretion as claimed.

 Defendant's final contention relates to the asserted filing of a Release of Mechanic's Lien Bond on August 27, 1964, after the commencement of the instant action, such undertaking being in the sum exceeding the amount of plaintiff's claims.   It is argued that the filing of this undertaking ousted the court of any jurisdiction to determine the present dispute.   There is nothing in the record before us to support the claim that any such bond has been filed, nor was the present action ever defended on the theory that the court lacked jurisdiction.   We do not consider claims presented to us in such unorthodox fashion.

Insofar as the judgment provides that plaintiff have judgment against defendant Francis E. Allen, Jr., in the sum of $20,270.92 as principal and the interest and costs in such portion of the judgment determined, it is reversed;  in all other respects it is affirmed.

FOOTNOTES

1.   The judgment not only impressed defendant's properties with liens but also awarded a money judgment against defendant for the total sum due plaintiff plus interest as prayed for in the complaint.  (See Distefano v. Hall, 218 Cal.App.2d 657, 662, 32 Cal.Rptr. 770 (n. 6).)

2.   Such portion of the judgment provides that “plaintiff have judgment against defendant FRANCIS E. ALLEN, MR. in the sum of $20,276.92 as principal, $1,769.98 as interest” plus stated costs.

LILLIE, Justice.

WOOD, P.J., and FOURT, J., concur.