Halspar, Inc. v. La Barthe

TAYLOR, J.

On this appeal from a judgment entered ■ pursuant to section 631.8.of the. Code of Civil Procedure, the only question, presented is whether the trial court properly concluded that plaintiff’s mechanic’s lien was invalid because, plaintiff failed to give the requisite statutory prelien notice.(Code Civ. Proc., § 119.3) to defendants, the owners of -"■the real property. Plaintiff corporation argues that it is = exieihpt from the statutory notice requirement as an original ■ contractor because defendants had actual knowledge of the " wofif performed.

The facts are not in dispute. Plaintiff, Halspar, Inc., a "• licensed - general contractor, contracted ■ with defendants ’ lésseé, Best Music, Inc. (hereafter referred to as Best) for the construction of.certain improvements on a parcel of real property then occupied by Best under a lease from defendants. Plaintiff completed the improvements between July 15, .-1961,- and January 22, 1962. Best paid $16,990.13 of the con- , tract price .of- $29,973.82, leaving • an ■ unpaid balance of $12,983.69. On April 6, 1962, plaintiff filed a claim of lien against the parcel of real property. About April 4, 1962, a creditor’s involuntary petition in bankruptcy was filed against Best. Plaintiff did not give defendants the written prelien notice' required by section 1193 of the Code of Civil Procedure. Defendants had actual knowledge of the work, labor and materials being furnished to their lessee by plain

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tiff and did not file a notice of nonresponsibility (Code Civ. Proc., §1183.1).

The pertinent portion of section 1193 of the Code of Civil Procedure provides that “Except one under direct contract with the owner or one performing actual labor for wages, every person who furnishes labor, service, equipment or material” for which a lien otherwise can be claimed pursuant to the mechanics’ lien statutes must, as a prerequisite to the validity of any claim of lien subsequently filed, give a written notice as prescribed by the statute to the owner not later than 15 days prior to the filing of the lien (Code Civ. Proc., § 1193).

The pertinent portion of section 1183.1 of the Code of Civil Procedure, however, provides that every improvement constructed with the knowledge of the owner shall be held to have been constructed at the instance of the owner subject to any lien filed in accordance with the provisions of the mechanics’ lien statute unless the owner shall give the statutory notice of nonresponsibility within 10 days after he has obtained knowledge of the improvement.