DeMartini v. Lamb

California Court of Appeal Jun 30, 1959 No. Civ. No. 18382; Civ. No. 18781Published

Before: Kaufman

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Holding. The court affirmed the judgment determining the parties' rights under their construction agreement and held that the plaintiffs were not required to exhaust the security of the Bolsa Avenue property before enforcing the deed of trust on the Oakdale property. Additionally, the court issued a peremptory writ of prohibition staying the unlawful detainer action because the superior court had already assumed jurisdiction over the property rights.

Issues

Whether the plaintiffs were required to exhaust the security of the Bolsa Avenue property before enforcing the deed of trust on the Oakdale property.
Whether the deed of trust on the Oakdale property was valid and secured the performance of the January 5, 1956 agreement.
Whether the unlawful detainer action was prematurely filed while the superior court action regarding the same property rights was pending.

Disposition. Affirmed; peremptory writ of prohibition issued.

Quotations verified verbatim against the opinion

“There is nothing in any of these instruments to indicate that under the terms of the agreement plaintiffs are required to first exhaust the security of the grant deed to the Bolsa Avenue property.”

“Both instruments secured a single debt owing from defendant to plaintiffs.”

KAUFMAN, P. J. We are here concerned with two proceedings arising out of the same transaction between the parties and concerning the same question. In the first, Number 18382, defendant Elizabeth Lamb (also known as Phyllis K. Lamb and Elizabeth Kent) appeals from a judgment in favor of the plaintiffs, DeMartini Brothers, in an action for declaratory relief. The second proceeding, Number 18781, relates to the trial of an action for unlawful detainer, filed by the plaintiffs, which we temporarily restrained by an alternative writ of prohibition. We will first dispose of the appeal, which is confined to certain alleged errors and inconsistencies in the findings of fact and conclusions of law.

In 1955, Elizabeth and her husband Arthur Lamb, owned several parcels of real property in Mill Valley, California, hereinafter referred to as the Bolsa Avenue property and the Oakdale Avenue property. In August 1955, the plaintiffs, who are licensed contractors, and the defendants entered into an oral agreement for the construction of a residence on the Bolsa Avenue property. There was a construction loan on the properties, but plaintiffs did not receive sufficient funds to continue construction and pay the subcontractors. Work ceased in December 1955, By this time plaintiffs had completed the foundation and the exterior work; only the interior trim remained.

January 5, 1956, the parties executed an agreement which set forth the conditions under which the construction of the Bolsa Avenue residence was to be resumed and completed. The agreement provided that complete title to the Bolsa [589]Avenue property be conveyed to the DeMartini Brothers as well as a second deed of trust on the Oakdale property in the amount of $12,000 and a first deed of trust in the amount of $4,500 on an unimproved lot for the period of one year from the date of the agreement. DeMartini Brothers was assigned the remaining loan payments and agreed to complete these, and to complete the work on the house as it saw fit as expeditiously and economically as possible, and to pay all costs involved in the construction, including labor, materials, insurance, taxes and interest on the loan. Defendants were given the right to purchase the Bolsa Avenue property at cost plus a fee of $2,000 for a period terminativo 35 days after the completion of the building and the right to offer the Bolsa Avenue property for sale for $37,500, for a period terminating 35 days after completion. The agreement further provided:

“12. DeMartini Brothers agree that payment at any time for all outstanding obligations will release Arthur H. Lamb and PhyZis K. Lamb from his agreement.

DeMartini v. Lamb

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