Fiatarone v. Masterson

PAULSEN, J. pro tem.

*

Appellants were the owners of a building in Richmond, California, where they operated an Italian-style restaurant and bar. They leased the property to August Sauer who wished to operate the business as a steak house. Saner informed appellants before the lease was drawn that it would be necessary for him to make numerous alterations in the building and that he could do so at his own expense. Appellants employed respondents, who were attorneys at law, to draw the lease and handle the legal phases of the transaction. It is admitted that appellants were concerned over the possibility of being held liable for the cost of the

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work to be done by Sauer and that they told respondents that they must be fully protected.

Section 17 of the lease drawn by respondents, and around which much of the present controversy revolves, reads:

“Lessees agree to pay and discharge all liens and obligations of any nature and kind whatsoever which shall attach to or be imposed upon said premises or to the leasehold created or incurred by said Lessees. Lessee further covenants that he will not make any contract for the construction, repair, or improvement on, in, of or to the said demised premises, or any part thereof, or for any work to be done or materials to be furnished upon or to said demised premises, or any part thereof, without providing in such contract or agreement that no lien of mechanics or materialmen shall be created or shall arise against said above described land and/or the building or improvements at any time located thereon. All persons furnishing any work, labor or materials, as well as all other persons whatsoever shall be bound by this provision and by the notice thereof from and after the date of this lease, and notice is hereby given that no mechanic’s lien, materialmen’s lien or any other incumbrance made or obtained against the lessee, or his interest in said demised land and/or the building or improvements thereon, shall in any manner or degree affect the title or interest of the lessor in said land and/or the building or improvements thereon. To that end, the lessee further covenants and agrees that he will not make any contract or agreement either oral or written, for any labor, services, fixtures, material or supplies in connection with altering, repairing or improving any building or improvement upon said demised premises without providing in such contract or agreement that the said contractor or contractors waive all right to a mechanic’s lien, and waive all right of any subcontractor or subcontractors to mechanics’ liens, by reason of furnishing any labor, services and/or material under such contract or contracts, whether written or oral, and that upon execution of such contract or contracts shall, on behalf of the lessors post and record the Notice provided in Code of Civil Procedure Section 1183.1.”