Fontana Paving, Inc. v. Knecht, Garrison & Tait Associates, Inc.

California Court of Appeal Dec 15, 1965 No. Civ. 7598Published

Before: Finley

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Holding. The court held that the trial court did not abuse its discretion in dismissing a mechanic's lien foreclosure action for lack of diligent prosecution, as the appellant failed to establish a clear case of abuse or miscarriage of justice.

Issues

Whether the trial court abused its discretion in dismissing an action to foreclose a mechanic's lien under Code of Civil Procedure section 1198.1.

Disposition. affirmed

Quotations verified verbatim against the opinion

“An abuse of discretion is never presumed but must be affirmatively established by the party complaining of the provisions of the order.”

“We are therefore not entitled to substitute the discretion of this court for that of the trial judge and usurp a prerogative which he is entitled to exercise without interference in the absence of obvious abuse.”

FINLEY, J. pro tem.

Appeal from a judgment of dismissal.

On February 16, 1961, appellant filed a complaint to foreclose a mechanic’s lien. The memorandum for setting was filed

[725]

in July 1963. On November 6, 1963, the trial court granted respondents’ motion under Code of Civil Procedure, section 1198.1 to dismiss the proceeding and this appeal followed.

The issue: whether the trial court abused its discretion in dismissing the action.

Appellant contends that there was an abuse of discretion, stating that “The theory behind section 1198.1 of the Code of Civil Procedure and the case of

Hayward Lumber & Inv. Co.

Greenwalt

(1932) 215 Cal. 655 [12 P.2d 445], relied upon by the respondents in the Trial Court, is that title of the property of an owner should not be clouded for an undue period of time.’’ And further: ‘ Subsequent to the enactment of Section 1198.1(a) and the decision in

Hayward Lumber & Inv. Co.

Greenwalt,

to wit, in 1957, the legislature added Section 1193.2 and amended the same in 1959, which section provides a means whereby an owner and others may relieve themselves of the effect of the lien on real property by recording an appropriate release bond in the county recorder’s office in the county in which the property is located; that the effect of the recording of such bond is to free the property from the effect of the claim of lien and any action brought to foreclose such lien. ’ ’ Appellant then goes on to say that with this safeguard at the disposal of a property owner the courts should look with less favor upon a motion to dismiss and to foreclose such a lien under the provisions of Code of Civil Procedure, section 1198.1.

Respondents call attention to the fact that since the enactment of Code of Civil Procedure, section 1193.2 in 1957, section 1198.1 has been amended without any change in the provisions relating to the two year limitation and that in the same year section 1193.2 was amended both without any legislative expression of intent that the bond provision would extend the time within which to bring a lien foreclosure action to trial.

Fontana Paving, Inc. v. Knecht, Garrison & Tait Associates, Inc.

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