Baird v. Havas

PETERS, P. J.

Plaintiffs being unpaid materialmen who had furnished lumber used by a contractor in the construction of defendants’ home, brought this action to foreclose their mechanic’s lien. The trial court held that the lien was not filed within the time required by law. Plaintiffs appeal.

This case has been before this court on a prior appeal—

Baird

v.

Havas,

65 Cal.App.2d 523 [151 P.2d 10]. That was an appeal from an order denying plaintiffs’ motion under section 663 of the Code of Civil Procedure to set aside the

[522]

judgment on the ground that the findings of fact were inconsistent and did not support the conclusions and judgment. It was there held that the findings were sufficient. This present appeal from the judgment is based principally on the contentions that certain basic findings are unsupported, and that under section 1187 of the Code of Civil Procedure the lien was filed in time.

Section 1187, since its amendment in 1929, provides that where, as here, no notice of completion is filed by the owner, the materialmen, and others, have ninety days after completion of the work of improvement as a whole in which to file their liens. The section also provides: “In all cases, any of the following shall be deemed equivalent to a completion for all the purposes of this chapter ;'the occupation or use of a building, improvement or structure by the owner, or his representative, accompanied by cessation from labor thereon; or the acceptance by the owner, or said agent, of said building, improvement or structure, or cessation from labor for thirty days upon any contract or upon any building, improvement or structure.” It is also provided that: “The phrase ‘work of improvement’ and the word ‘improvement’ as used in this chapter are each hereby defined to mean the entire structure or scheme of improvement as a whole.”

The trial court found that “all materials furnished by plaintiff were furnished more than one hundred and twenty (120) days prior to the filing of lien by the plaintiffs on the 31st day of January, 1942”; that the building was completed on September 4,1941; that there was a cessation of work commencing August 25, 1941; that the lien was not filed within 120 days from and after the cessation of work on the building; and that the defendants went into complete occupancy of the building on September 4,1941. It was also found that all of the allegations of the answer not inconsistent with the findings of fact were true, and one such allegation is that there was a cessation of labor