Systems Investment Corp. v. National Automobile & Casualty Insurance

Opinion

KINGSLEY, J.

Plaintiff, Systems Investment Corporation (hereinafter sometimes referred to as “plaintiff” or “Systems”) appeals from an order of dismissal, filed April 22, 1971, after sustaining a demurrer without leave to amend in favor of defendant, National Automobile and Casualty Insur

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anee Company (hereinafter sometimes referred to as “defendant” or “National”).

Although the complaint is not specific, we have taken judicial notice, pursuant to subdivision (d) of section 452 of the Evidence Code, of the superior court files in the two cases discussed below. From the complaint, the exhibit attached thereto', and the two superior court files, we glean the following:

Prior to May 19, 1965, Leon and Bertha Omansky were the owners of certain real property in the City of Los Angeles, on which they desired to construct an apartment building. Pursuant to that plan, they , had procured a construction loan from the Union Bank of Los Angeles. By July of 1965, the interest of the Omanskys in the real property, and their rights under the loan agreement had vested in Systems. Hughes Steel Company (hereinafter “Hughes”) had been given a contract for some or all of the construction work on the project. Thomas G. Gorzik, doing business as Western Construction, claimed that he had been given a subcontract by Hughes to perform work and provide material in connection with the project and that $15,953.79 was due and owing to him under that subcontract. On July 22, 1965, Gorzik recorded a mechanic’s lien on the real property and, in purported compliance with subdivision (h) of section 1190.1 of the Code of Civil Procedure, as that section then read,

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Gorzik served on Union Bank a verified stop notice and notice to withhold, accompanied by a bond executed by defendant National Automobile and Casualty Insurance Company. In spite of that procedure, Union Bank refused to honor the stop notice and paid out the funds in its hands either to plaintiff or on its directions.

Gorzik thereafter filed two actions in superior court. Action number 869,084 named as defendants: the Omanskys, Systems, Hughes, Union Bank, and 20 Does. Insofar as Systems was concerned, the action sought only to foreclose the mechanic’s lien theretofore filed. At a later date, Gorzik filed a second action, number 913,128, naming as defendants: Union Bank, Systems, the Omanskys, and 20 Does. That action, in addition to claiming against the bank for disregard of the stop notice, also sought a personal judgment against all of the defendants. Action 869,084 went to trial, resulting in a judgment against Gorzik and in favor of all