Borchers Bros. v. Buckeye Incubator Co.

McCOMB, J. Plaintiff brought suit to foreclose its claim of lien for materials furnished to defendants Pierce Manufacturing Co. and Thomas Pierce, for use on real property owned by defendant Buckeye Incubator Company.

The complaint failed to allege that plaintiff had given the prelien notice' required by section 1193 of the Code of Civil Procedure!

Defendant Buckeye Incubator Company demurred generally to the complaint. Upon the sustaining of the demurrer, plaintiff failed to amend within the 10 days allowed by the court.

An order dismissing the complaint as to Buckeye Incubator Company was then entered by the court. Prom this order plaintiff has appealed.

Plaintiff’s sole contention is that the notice requirement of section 1193 of the Code of Civil Procedure is [237]unconstitutional because it unfairly discriminates between laborers and materialmen, in violation of article XX, section 15, of the California Constitution.1 This contention is devoid of merit.

The section complained of provides, in part: “(a) 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 under this chapter, must, as a necessary prerequisite to the validity of any claim of lien subsequently filed, cause to be given not later than 15 days prior to the filing of a claim of lien a written notice as prescribed by this section, to the owner or reputed owner and to the original contractor. ’ ’

Plaintiff points out that this provision does not require wage laborers to give the 15 days’ notice, but it does require all other lien claimants (except those under direct contract with the owner) to do so.

It is contended on behalf of plaintiff that article XX, section 15, of the California Constitution is “ self-executing to the extent that it confers upon these classes of persons [mechanics, materialmen, artisans, and laborers] a lien and makes them equal in point of rank. ...” This language is predicated upon language used in Miltimore v. Nofziger Bros. Lumber Co. (1907) 150 Cal. 790, 792 [90 P. 114].

Article XX, section 15, of the California Constitution is not self-executing but must be implemented by legislation to provide enforcement procedures.