R. M. Hacker Co. v. Hollymount Bowl

PATROSSO, Acting P. J.

This action is one to foreclose a mechanic’s lien, wherein a judgment of foreclosure was entered from which the defendants appeal. The instant action was filed within 90 days after the filing of the claim of"lien, but

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a notice of pendency of said action was not filed until more than 90 days after the filing of the lien. The question presented is whether such failure to file notice of pendency of the action within the period stated operates to bar the right to enforce the lien. We have concluded that the question must be answered in the affirmative and accordingly are reversing the judgment.

Section 1198.1 of the Code of Civil Procedure, insofar as material here, reads as follows: “No lien provided for in this chapter binds any property for a longer period than 90 days after the same has been filed

except as hereinafter provided,

unless within that time, proceedings to enforce the same be commenced in a proper court

and a notice of pendency of such proceedings he filed as provided in Section 409

. . .”

The foregoing language was formerly found in section 1190, except for the portions thereof which we have italicized and which were added by an amendment' adopted in 1953. The exception therein mentioned is not of moment here.

We find it difficult to believe that the language of the provision quoted above presents any great problem of interpretation. Its grammatical meaning is clear and we find nothing therein to suggest that we should ignore it in order to give effect to its true intent and meaning. [23 Cal.Jur., p. 732, § 110]. What the statute plainly says is that no such lien “binds any property” for a longer period than 90 days after the filing of the same unless,

within that period,

(1) a suit to enforce the same is filed in a proper court and (2) a notice of pendency of the action is filed. The words “unless within that time” are equally applicable both to the requirement of filing an action and the filing of a notice of pendency thereof. This, we believe, is made unmistakably plain when regard is had to the obvious purpose of the enactment which was to limit the time within which a mechanic’s lien shall be enforceable. As originally enacted, the claimant might preserve his right to enforce the lien beyond the 90-day period by commencing a suit to foreclose the same within that time in a proper court, but by the 1953 amendment an additional condition was added, namely, the filing, within the same period, of a notice of the pendency of the action. If the Legislature did not intend that the 90-day period of limitation should apply to the filing of the notice of the pendency of the action, the provision would appear to be wholly unrelated to the purpose of the section, which, as noted, was solely that