HOWARD S. WRIGHT CONSTRUCTION CO.,

v.

BBIC INVESTORS, LLC,

Filed 1/31/06




CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA





FIRST APPELLATE DISTRICT





DIVISION FIVE





HOWARD S. WRIGHT CONSTRUCTION CO.,

Plaintiff and Appellant,

v.

BBIC INVESTORS, LLC,

Defendant and Respondent.


A109876


(Alameda County

Super. Ct. No. 2001-019199)



Howard S. Wright Construction Co. (Wright) sought to foreclose a mechanic's lien recorded against the property of BBIC Investors, LLC. After a nonjury trial, the court determined that Wright's recordation of its mechanic's lien was premature and the lien was therefore void. On appeal, Wright contends this was error.

In the published portion of this opinion, we conclude the trial court erred because Wright recorded its claim of lien after its contract was completed, within the meaning of Civil Code section 3115, upon the anticipatory breach of the other contracting party. In the unpublished portion of the opinion, we conclude as an alternative basis for reversal that the trial court's key factual finding was not supported by substantial evidence. Although Wright's remaining arguments lack merit, for the foregoing reasons we reverse the judgment.

I. FACTS AND PROCEDURAL HISTORY

Respondent BBIC Investors, Inc. (BBIC), owned a former warehouse building located at 2201 Poplar Street in Oakland, California. 360networks (USA) inc. (360), a telecommunications company, leased space in the premises from BBIC. 360 retained Wright to perform the construction work necessary for installing in the leased space a high-tech facility for 360's internet business. To this end, Wright and 360 entered into a written Design-Build Agreement. Meanwhile, BBIC posted and recorded a notice of nonresponsibility at the premises, intending to prevent the attachment of any mechanic's lien to its interest in the real property.

A. The Design-Build Agreement

The project covered by the Design-Build Agreement was referred to as the â€