Camacho v. Colvin
Filed 3/2/12 Camacho v. Colvin CA1/4
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
EDSON
CAMACHO,
Plaintiff and Appellant,
v.
LORRAINE COLVIN et al., as Trustees,
etc.,
Defendants
and Respondents.
A132450
(Contra
Costa County
Super. Ct.
No. MSC1000648)
I.
Introduction
Edson
Camacho (appellant) appeals from a judgment entered in favor of respondents
Lorraine and Ronald Colvin as trustees of the Colvin Family Trust, following an
order granting respondents’ motion for judgment on the pleadings without leave
to amend. Appellant contends that a
valid cause of action was stated in his verified
trial court erred in granting the motion.
We agree with respondents that critical allegations in the FAC
contradict factual allegations contained in the original verified complaint,
and appellant’s attempt to “plead around” those allegations fails. Accordingly, we affirm the judgment.
II.
Factual and Procedural Backgrounds
Appellant
filed his original verified complaint on or about March 16, 2010, against
defendants Osvaldina Lima (Lima), respondents, and others, for
mechanic’s lien. In the complaint,
appellant alleged that Lima was the owner of real property located at 318 32nd
Street in Richmond (the 32nd Street Property), and that respondents were
lienholders on that property. “On or
about October 15, 2006,” appellant and Lima entered into a contract by which
appellant was to provide labor and material to make certain improvements to the
32 Street Property for a total agreed sum of $201,000. The complaint alleged further that “[d]uring
the period October 15, 2006 and continuing,” appellant furnished labor and
materials used to make improvements to the 32nd Street Property pursuant to the
aforementioned contract, and that $81,234 was still owed by Lima for the work
and materials. As to respondents,
appellant filed a mechanic’s lien for the unpaid amount, and sought lien priority
against respondents’ lien. The complaint
was accompanied by a verification signed by appellant under penalty of perjury
attesting that he had personal knowledge of the facts in the complaint, and
that they were true.
The
contract allegedly entered between appellant and Lima was attached to the
complaint as Exhibit A, and was purportedly signed by appellant and Lima on
October 15, 2006. That contract
states: “The work to be performed under this agreement will commence on the
10-15-2006 [sic].” The contract further required Lima to obtain
all necessary approvals and permits “prior to the commencement of the works [
clause requiring any modifications of its terms to be in a writing signed by
both parties. The mechanic’s lien, which
was also attached to the complaint, was recorded on January 28, 2010, more than
three years after the contract was entered into.
After
filing a verified answer to the complaint, respondents filed a motion for
judgment on the pleadings, on the ground that appellant had failed to state a
claim for mechanics’ lien priority. In
the moving papers, respondents averred that Lima was appellant’s spouse to whom
respondents loaned $200,000 in September 2006 to purchase and develop the 32nd
Street Property, which loan was secured by a deed of trust recorded on October
5, 2006. When the improvements were not
completed and Lima defaulted on her loan payments in 2007, respondents
initiated foreclosure proceedings. Eight
days before the March 24, 2010 trustee’s sale was scheduled to take place,
appellant filed his complaint for breach of contract and mechanics’ lien
priority. After appellant’s
temporary restraining order stopping the sale, the property was sold to
respondents on March 24, 2010, and a new deed was recorded on March 29,
2010. Thus, respondents argued that any
mechanic’s lien was extinguished by the trustee’s sale. The motion also claimed that appellant’s
mechanics lien was defective because it failed to comply with Civil Code
section 3084, and that it was junior to respondents’ lien because it was
filed later.
Appellant filed an opposition in
font of varying sizes, was largely unreadable.
As near as we can discern, appellant claimed that the version of Civil
Code section 3084 relied on by respondents did not apply to his lien. He also made reference to the “relation back”
doctrine, apparently arguing that, for priority purposes, the recording of the
mechanic’s lien relates back to the time the work first commenced. At the same time, appellant filed a motion
for leave to file the FAC, claiming that the purpose was to make the
allegations “more specific.” This pleading
likewise used an exotic-type font of varying sizes. The motion was opposed by respondents.
Before the motion was heard, the trial court issued an
order requiring appellant to file an amended opposition using “at least a
12-point standard business font.” When
appellant failed to file an amended opposition, the trial court treated the
pending motion for judgment on the pleadings as “unopposed.” Therefore, the motion was granted, but
appellant was also granted leave to file the FAC (in “12-point standard
business font”
. Appellant’s separatemotion for leave to file the FAC was dropped from the calendar as “moot.”
The verified FAC was filed by appellant on October 25,
2010.
changes from the original verified complaint as the addition of “a small amount
of detail,” and allegations that the agreement for the work was entered into
between appellant and Lima “[p]rior to September 25, 2006,” and that certain
“site preparation work . . . on the lot” was performed by appellant
and his workers “[f]rom September 25, 2006 to September 30, 2006.” He claimed the contract that was later signed
between himself and Lima on October 15, 2006, included the earlier
September 2006 site preparation work.
Therefore, he alleged that the work which is the subject of his
mechanic’s lien actually commenced on September 25, 2006.
Respondents filed a new motion for judgment on the
pleadings. The motion reiterated that
judgment on the pleadings relating to the original complaint was properly
granted because the trustee’s sale of the property extinguished appellant’s
lien, and that his mechanic’s lien was junior to that of respondents because it
was filed after respondents’ lien. As to
the new allegation that the work actually started in September 2006,
respondents contended that it was “immaterial,” because the actual recording
date of the liens controlled. In making
this argument, respondents asserted that the “relation back” doctrine could
apply only if appellant’s mechanic’s lien had been recorded
Appellant’s in pro. per. opposition to the new motion
argued that, although his mechanic’s lien was recorded after respondents’ lien,
legally it had priority over respondents’ lien because the FAC alleged that the
work commenced before respondents’ lien was filed. He also argued that the sale of the property
did not extinguish his lien.
Respondents’ reply brief countered that:
(1) appellant’s mechanic’s lien could not relate back to September 2006
because Lima did not even own the property then; (2) even if appellant was
correct that, for priority purposes, a later recorded mechanic’s lien relates
back to the date the work commenced, appellant was precluded from making this
factual claim now because it contradicted his earlier verified allegations; and
(3) as a matter of law, the trustee’s sale extinguished any lien rights
appellant may have had. Appellant filed
a written objection to respondents’ argument that he was bound by his earlier
verified allegation that the work did not begin until after October 15, 2006. He
claimed that, because the issue was being raised for the first time in a reply
brief, the court should not consider the argument.
The court granted the motion for judgment on the
pleadings without a statement of reasons.
respondents, and this appeal followed.
III.
Legal Analysis
“The standard of review for
a motion for judgment on the pleadings is the same as that for a general
demurrer: We treat the pleadings as admitting all of the material facts
properly pleaded, but not any contentions, deductions or conclusions of fact or
law contained therein. . . .
We review the complaint de novo to determine whether it alleges facts
sufficient to state a cause of action under any theory. [Citation.]”
(Dunn v. County of Santa Barbara (2006)
135 Cal.App.4th 1281, 1298.) We review
the trial court’s denial of leave to amend for abuse of discretion. (Branick
v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.)
Although a number of issues are discussed in the briefs,
the principal one is whether appellant was precluded from establishing lien
priority by alleging that the work encompassed in the mechanic’s lien actually
began before respondents’ lien was recorded.
Respondents do not dispute that if the work actually commenced before
their lien was recorded, the subsequently recorded mechanic’s lien would have
priority. (Civ. Code, § 3134;
Co. (2004) 124 Cal.App.4th 780, 793.)
However, respondents’ main contention is that appellant
alleged and admitted in his original complaint that the work did not commence
until after October 15, which was
prior admission, appellant was legally precluded from contradicting these facts
in his FAC. We agree, particularly in
light of appellant’s failure to provide a satisfactory explanation for the inconsistency.
“A
complaint may plead inconsistent causes of action [citations], although it be
verified, if there are no contradictory or antagonistic facts [citation].” (Steiner
v. Rowley (1950) 35 Cal.2d 713, 718-719.)
“ ‘Generally,
after an amended pleading has been filed, courts will disregard the original
pleading. [Citation.] [¶] However, an exception to this
rule is found in Lee v. Hensley
[(1951) 103 Cal.App.2d 697, 708-709 . . .], where an amended
complaint attempts to avoid defects set forth in a prior complaint by ignoring
them. The court may examine the prior
complaint to ascertain whether the amended complaint is merely a sham.’ [Citation.]
The rationale for this rule is obvious.
‘A pleader may not attempt to breathe life into a complaint by omitting
relevant facts which made his previous complaint defective.’ [Citation.]
Moreover, any inconsistencies with prior pleadings must be explained; if
the pleader fails to do so, the court may disregard the inconsistent
allegations. [Citation.]” (Vallejo
Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.)
In Owens v. Kings
Supermarket (1988) 198 Cal.App.3d 379, the plaintiff was struck by a
motorist adjacent to the defendant’s market.
His original complaint alleged that the accident took place on the
public street adjacent to the market, and the defendant owed him a duty of care
because he was parked in the roadway so he could run into the store and buy a
newspaper. (Id. at pp. 382-383.)
Two successive demurrers were filed by the defendant arguing that the
market owed no duty to plaintiff because he was injured in the public roadway,
and not on the defendant’s property.
Both demurrers were sustained with leave to amend. Plaintiff then filed a second amended
complaint, but this time alleged that he was on the market’s property when he
was injured. (Ibid.)
The court rejected the new allegations, relying on an
exception to the general rule that requires a court to assume the truth of
pleaded facts in deciding the sufficiency of a demurrer. That exception applies “where a party files
an amended complaint and seeks to avoid the defects of a prior complaint either
by omitting the facts that rendered the complaint defective or by pleading
facts inconsistent with the allegations of prior pleadings. [Citations.]”
(Owens v. Kings Supermarket,
pp. 383-384.) Noting that the
plaintiff failed to provide a satisfactory explanation for the inconsistency,
“[t]he conclusion is inescapable that this amendment was made solely for the
purpose of avoiding a demurrer.” (
purposes of the appeal that the original version of events were factually
correct. (Ibid.)
Similarly, in Amid
v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, a
surgeon sued a hospital that sent a negative peer review evaluation to an
affiliated health insurer, allegedly causing him damages to his
reputation. Underlying his claims
against the hospital was the allegation that the hospital had breached a written
contract with him by making the disclosure.
In his original complaint the plaintiff failed to allege that his
contract with the defendant contained an express agreement not to disclose the
peer review evaluation, claiming it was implied only. Then, in his first amended complaint he
alleged that the medical director of defendant made an express oral contract of
nondisclosure. In the absence of a
satisfactory explanation as to why he changed this allegation, the court held
the lower court was justified in concluding that the doctor’s breach of
contract claim was a “sham.” (
In this case, appellant does not explain the
inconsistencies between the allegations in his original verified complaint and
those in his verified FAC; he simply takes the position that the allegations
are not inconsistent, but rather are the product of respondents “misreading”
the original complaint. This is
legal-speak nonsense.
The original complaint clearly alleges that “[d]uring the
period October 15, 2006 and continuing” appellant furnished labor and materials
used to make improvements to the 32nd Street Property—not before October 15.
The
contract that appellant appended to the complaint, which also is clear on its
face, was entered into on October 15, 2006, and states unambiguously that: “The
work to be performed under this agreement will commence on 10-15-2006 [
There is nothing in the contract to indicate the work was to commence
The
contract further required Lima to obtain all necessary approvals and permits
“prior to commencement of the works [sic]
to be done.” Lima did not acquire title
to the property until October 5, 2006.
Thus, until that date she had no standing or ability to obtain “approval
and permits” to perform construction work on property she did not then own.
The
contract also contained an integration clause requiring any modifications of
its terms to be in a writing signed by both parties. Extrinsic evidence cannot be used to
contradict or supplement an agreement if the contract is intended to be a final
expression of the parties’ agreement. It
may only be used to explain or interpret ambiguous language. (Code Civ. Proc., § 1856, subds. (b),
(g).) “Generally, finality may be
determined from the writing itself. If
on its face the writing purports to be a complete and final expression of the
agreement, parol evidence is excluded.
[Citations.]” (
Cal.2d 676, 679-680.) The contract is
not ambiguous, and it is facially a complete and final embodiment of the
parties’ construction agreement. Any
changes to its terms were required to be made in a writing signed by the
parties, including a purported change to the work commencement date to a date
prior to Lima’s ownership of the subject property.
Under these circumstances, there is no doubt that the
clearly contradictory “omission, substitution, or contradiction of an original
allegation carries with it the onus of untruthfulness.” (Avalon
Painting Co. v. Alert Lbr. Co. (1965) 234 Cal.App.2d 178, 184.) For these reasons, as did the appellate
courts in Owens and
inconsistencies in the FAC from those in the original complaint and hold
appellant to the first version of events he swore were truthful. That being the case, we conclude that his
mechanic’s lien was junior, or subordinate, to the lien recorded by respondents
several years earlier, and he has failed to state a claim to enforce his lien
against respondents.
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IV.
Disposition
The judgment is affirmed.
Respondents are awarded their costs on appeal.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
12 or 13, typical for legal pleadings.
Also, although the FAC renamed Lima as a defendant, the trial court had
earlier ordered the dismissal of her and other originally named defendants who
were never served with a summons and complaint.
ruling which neither side contested, thereby making the tentative ruling
final. The record does not contain a
copy of the tentative ruling, and therefore, we are unable to state if reasons
supporting the granting of the motion were set forth in that ruling.
