Douglas v. Donner Pines, Inc.

[270]

Opinion

PARAS, J.

Plaintiff Jack L. Douglas appeals from a judgment of dismissal after a demurrer to his first amended complaint was sustained without leave to amend.

On January 2, 1974, plaintiff was discharged by Donner Pines, Inc. from employment as construction manager of a condominium project and a commercial development, both in Nevada County. On March 4 and on April 24, 1974, he recorded mechanic’s lien claims in Nevada County against the two properties. On May 13, 1974, in the Superior Court of Santa Clara County (not Nevada County), he filed a complaint to foreclose the mechanic’s liens, joining with it causes of action to compel arbitration and for breach of contract, services rendered and accounting. Over a year later, on July 18, 1975, he recorded a lis pendens in Nevada County. (See Civ. Code, § 3146.)

The matter went to arbitration, and on August 25, 1975, the Superior Court of Santa Clara County entered a default judgment confirming the arbitrator’s award of $27,059.12 plus interest and costs; plaintiff was awarded liens of $18,640.37 and $8,418.75 respectively against the two properties. The judgment authorized the Sheriff of Nevada County to sell the properties at public auction to satisfy the liens.

Up to this point only plaintiff and Donner Pines, Inc. were involved in the litigation; the original complaint had, however, named additional fictitious defendants. Having obtained the judgment establishing and foreclosing his lien, plaintiff also obtained (in the same judgment) an order “severing” the action as to the fictitious defendants, but retaining “jurisdiction to determine the

validity

and

priority

of the lien as to remaining defendants, fictitiously named or otherwise, who claim to have some estate lien, right, title or interest in or upon the real property ... .” (Italics added.)

Plaintiff then filed the first amended complaint and served it upon the present defendants (hereinafter the defendants), who are variously described as owners, buyers or encumbrancers of the two projects. By stipulation the action was transferred to Nevada County, where pursuant to a ruling sustaining demurrer, it was dismissed as to defendants for failure to file the complaint in “a proper court” within 90 days after recording the claims of lien, as required by Civil Code section 3144.