Jones v. Maximus Developing
Filed 12/13/12 Jones v. Maximus Developing
CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
KENNETH STANLEY JONES,
Plaintiff and Appellant,
v.
MAXIMUS DEVELOPING, INC., et
al.,
Defendants and Respondents.
B236439
(Los Angeles
County
Super. Ct.
No. GC044707)
APPEAL from
a judgment of the Superior Court
of
County.
Jan A. Pluim, Judge.
Reversed.
James Ellis
Arden for Plaintiff and Appellant.
Murphy
Rosen Meylan & Davitt, Vincent J. Davitt, Anita Jain for Defendants and
Respondents.
_______________
Kenneth
Jones appeals from the dismissal of his complaint against respondents All
California Mortgage Fund, LLC, Richard Berger, and David Alan Levinson and Joan
Pearl Levinson, Trustees of the Levinson Family Trust, after respondents'
demurrer was sustained without leave to amend.
We reverse.
Factual
This is a
suit on a mechanic's lien.
Appellant
is a contractor. In September of 2006,
he was hired by a developer called Maximus Developing, Inc., to perform grading
work on a multi-home project in Pasadena,
the Kinnola Mesa Estates.
On November 25, 2009, appellant filed a
notice of claim of mechanic's lien in the amount of $2.65 million. On February
23, 2010, he filed a complaint for foreclosure of the lien, naming
as defendants Maximus Developing, Inc., as owner of Kinnola Mesa Estates, and
Doe defendants, and alleging, on information and belief, that Maximus was the
owner of the property. Maximus did not
answer.
On April 6, 2010, appellant filed an
amended mechanic's lien, changing the amount to $1.68 million.
On August 12, 2010, appellant filed a
lis pendens.
On February 1, 2011, appellant filed a
approximately 80 additional defendants, including respondents, alleging that
each defendant was the owner of, or claimed some legal interest in, the
property. Not all the new defendants
were served with the complaint, but respondents were.
Respondents
The court sustained the demurrer without leave to amend on the ground of
statute of limitations, ruling that "Plaintiff's original Complaint, which
named Does 1-100 was filed within the 90-day Statute of Limitations set forth
in Civil Code Section 3144. However,
moving defendants were not named as [D]oes.
Rather, they were ADDED as new defendants in the First Amended
Complaint. The filing of the First
Amended Complaint does not relate back to the filing of the original Complaint
with respect to these defendants."
Appellant
moved under Code of Civil Procedure section 473, subdivision (b), asking that
the court vacate its ruling on the demurrer, and allow him to withdraw his
first amended complaint and reinstate his original complaint. The motion was accompanied by, inter alia, the
declaration of appellant's counsel to the effect that the decision to name
respondents and the other new defendants as new defendants, rather than as Doe
defendants, was his alone.
The court
denied the motion on July 19, 2011,
"in its entirety" with prejudice.
The court also ordered respondents to give notice. On September
16, 2011, the court signed the judgment of dismissal prepared by
respondents, which stated that the action was dismissed as to respondents. On September 21, defendants served Notice of
Entry of the September 16 judgment.
About a week later, on September 28, respondent served another notice,
this one stating that the action was dismissed against all defendants on August 16, 2011, and attaching a copy
of the August 16, 2011
minute order.
On September 30, 2011, appellant filed
his notice of appeal from the judgment.
In this
court, respondents moved to dismiss on the grounds of mootness, proffering
evidence that on March 1, 2012,
they and the other owners sold the property to an entity called TL Property and
arguing, inter alia, that sale meant that this litigation was moot. We denied the motion, finding that "The
first amended complaint's prayer for relief can be read to seek to impose a
personal judgment against defendants.
Further, the prayer for relief seeks to recover moneys paid in
connection with a sale of the property.
A plaintiff in a mechanic's lien action can seek a personal
judgment."
Discussion
1. Respondents' arguments
Because it
addresses our jurisdiction, we begin with respondents' argument that the notice
of appeal is fatally defective in that it fails to identify the "particular
judgment or order being appealed" from.
(Cal. Rules of Court, rule 8.100, subd. (a)(2).)
The notice
of appeal specifies that the appeal is from "judgment of dismissal after
an order sustaining a demurrer."
Respondents contend that this notice does not distinguish between the
ruling on appellant's Code of Civil Procedure section 473 motion, the dismissal
of the action as to all parties, per their second notice of entry of judgment,
and what they call the "demurrer judgment," a phrase which has no
legal meaning, but which they describe as "based on May 26, 2011 Demurrer
order and entered on September 16, 2011."
We see no
flaw in the notice of appeal. This case
was dismissed by the court on August
16, 2011, and the notice of appeal clearly states that the appeal
is from the judgment of dismissal. The
fact that respondents gave two notices of entry of judgment does not render the
notice of appeal defective.
Respondents
also raise arguments concerning the effect of the dismissal on the other defendants
named in the first amended complaint, who were not served, did not demur, and
are not before us. We do not adjudicate
the rights of parties not before us, and see nothing in those arguments which
presents a barrier to the resolution of this appeal.
Finally,
respondents argue that this appeal is moot, repeating arguments found in their
motion to dismiss, a motion which we have already denied. We do not further address those arguments.
2. The trial court ruling
We find
that the trial court erred when it sustained the demurrer, whether or not the
relation back doctrine applied. (See 10
Miller & Starr, Cal. Real Estate (3d ed. 2000) § 28:69 [mechanic who lacks
actual knowledge that a person has an interest within 90-day filing period can
amend the complaint after the period has expired in order to name new
defendant, and the amendment relates back and is considered timely filed as to
newly named defendant].)
That is
because Code of Civil Procedure section 474, which allows a plaintiff who is ignorant
of the name of a defendant to sue Doe defendants, applies to mechanic's lien
actions. (Sobeck & Associates, Inc. v. B & R Investments No. 24
(1989) 215 Cal.App.3d 861, 867; Westfour Corp. v. California First Bank (1992) 3 Cal.App.4th 1554.)
"The
general rule is that an amended complaint that adds a new defendant does not
relate back to the date of filing the original complaint and the statute of
limitations is applied as of the date the amended complaint is filed, not the
date the original complaint is filed.
[Citations.] A recognized
exception to the general rule is the substitution under section 474 of a new
defendant for a fictitious Doe defendant named in the original complaint as to
whom a cause of action was stated in the original complaint. [Citations.]
If the requirements of section 474 are satisfied, the amended complaint
substituting a new defendant for a fictitious Doe defendant filed after the
deemed filed as of the date the original complaint was filed. [Citation.]" (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)
Further,
""the courts of this state have considered noncompliance with the
party substitution requirements of section 474 as a procedural defect that
could be cured and have been lenient in permitting rectification of the
defect." (Woo v. Superior Court, supra, 75 Cal.App.4th at p. 177.)
The court
thus erred when it failed to permit appellant to amend the complaint, to name
the new defendants as Doe defendants, under Code of Civil Procedure section
474.
In so
ruling, we are mindful of the fact that the purpose of the mechanic's lien, the
only creditors' remedy which stems from a constitutional command, is to prevent
unjust enrichment of a property owner at the expense of a laborer whose work
enhanced the value of the property, and that courts "'have uniformly
classified the mechanics' lien laws as remedial legislation, to be liberally
construed for the protection of laborers and materialmen.' [Citation.]" (Hutnick v. United States Fidelity &
Guaranty Co. (1988) 47 Cal.3d 456, 462; Wm. R. Clarke Corp. v. Safeco
Ins. Co. (1997) 15 Cal.4th 882, 889; Abbett
Electric Corp. v. California Fed. Savings & Loan Assn. (1991) 230
Cal.App.3d 355, 360.) Recovery in a
mechanic's lien case should not be foreclosed by a technical, procedural
defect.
3. Other grounds
Respondents
argue that appellant cannot prevail on appeal because he cannot amend his
complaint to avoid the limitations bar of Civil Code section 8460, which
provides that an action to enforce a lien must be commenced within 90 days of
the time the lien is recorded. They
acknowledge that appellant's initial complaint was timely filed within 90 days
of recordation of the lien. However,
they contend that when appellant filed an amendment to his lien (changing only
the amount) the amended lien "superseded" the original lien, so that
appellant had 90 days from the amended lien to file a new complaint. They then point out that the first amended
complaint was filed more than 90 days after the amended lien, and contend that
it was untimely. In support of this
theory, respondents cite only Civil Code section 8460, which does not concern
itself with amendment to a lien or provide that an amended lien
"supersedes" a lien.
We cannot
accept respondents' interpretation of the statute. Logically extended, respondents' argument is
that after amending a lien, a claimant must
file a new complaint, but we see no such requirement in the
given that a mistake concerning the amount specified in a lien does not
invalidate the lien (10 Miller & Starr, supra,
§ 28:69), and given that, in any event, "[t]he actual amount due on the
lien presents a question of fact for the trial court." (
(1999) 70 Cal.App.4th 1480, 1485.)
Disposition
The
judgment is reversed. Appellant to
recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
J.
We concur:
TURNER,
P. J.
MOSK,
J.
after demurrer was sustained without leave to amend, the relevant facts are
those found in the complaint's properly pleaded or implied factual allegations,
which we assume to be true. (
31 Cal.4th 1074, 1081.) In their brief,
respondents cite evidence which was the subject of their request for judicial
notice in the trial court, apparently not granted, to the effect that they
obtained their interest in the property on various dates in August 2007, and
that numerous other investors obtained an interest about the same time. Respondents also cite evidence proffered with
their motion to dismiss in this court, to the effect that they and other
investors foreclosed on their lien through a credit bid on
August 19, 2010. None of this evidence is properly before us
on this appeal.
answered. He incorporated respondents'
demurrer into his answer.
