Opinion
E052800 Super.Ct.No. TEC083592
11-22-2011
ALL STAR POOL PLASTERING, INC., Plaintiff and Respondent, v. BRAD CLAWSON, Defendant and Appellant.
Law Offices of Kelly Abreu and Kelly Abreu for Defendant and Appellant. Law Office of Michelle A. Palmer and Michelle A. Palmer for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed in part, reversed in part.
Law Offices of Kelly Abreu and Kelly Abreu for Defendant and Appellant.
Law Office of Michelle A. Palmer and Michelle A. Palmer for Plaintiff and Respondent.
Defendant and appellant Brad Clawson challenges the judgment entered against him and in favor of plaintiff and respondent All Star Pool Plastering, Inc. (Subcontractor) in its action to foreclose on a mechanic's lien recorded against Clawson's property for work performed on the construction of Clawson's pool.
I. PROCEDURAL BACKGROUND AND FACTS
On October 8, 2005, Clawson entered into a written contract with Accent Custom Pools (Contractor) to construct a swimming pool and spa. Clawson paid the contract in full. Regarding plastering the pool, Contractor retained Subcontractor. Although there was no written contract, Subcontractor received a work order from Contractor.
On or about October 13, 2007, Subcontractor plastered Clawson's swimming pool. Shortly thereafter, Subcontractor generated an invoice for $6,490, which was given to both Contractor and Clawson. Contractor did not pay Subcontractor. On October 25, 2007, Subcontractor served a 20-day notice on Clawson. Because Clawson had already paid Contractor, he did not pay Subcontractor. On November 8, 2007, Subcontractor recorded its mechanic's lien.
This amount was later amended to $6,466.40.
On February 6, 2008, Subcontractor sued Contractor and Clawson, seeking, inter alia, to foreclose on the mechanic's lien. Clawson answered the complaint; however, Contractor did not. Subcontractor dismissed Contractor from the lawsuit on or about September 25, 2008. Thus, Subcontractor's sole remaining theory of liability was the mechanic's lien. On November 17, 2008, Clawson filed a cross-complaint against Contractor and the surety for Contractor, American Contractors Indemnity Company (Surety). On February 24, 2010, Clawson dismissed Surety.
A court trial was held in August 2010. Following submission, the trial court entered judgment on December 22, 2010, in favor of Subcontractor in the amount of $6,466.40, plus prejudgment interest of 10 percent and costs. The court also found that the work performed by Subcontractor met professional standards and that Contractor's failure to pay Subcontractor with money paid by Clawson did not extinguish the mechanic's lien. On the cross-complaint, the trial court found in favor of Clawson and against Contractor, awarding damages in the amount of $22,000, plus attorney fees and costs.
II. DOES A MECHANIC'S LIEN REQUIRE PRIVITY OF CONTRACT?
Clawson contends, "If there is no enforceable contract at all, the mechanic cannot obtain a lien on the property to secure the claim. [Citation.]" Thus, he argues the lack of a contract between Subcontractor and Clawson, and between Subcontractor and Contractor, means that Subcontractor is not a "potential claimant" whose "work was authorized." (Boldface in original.) We disagree.
A mechanic's lien provides security for payment to a person, who benefits another's property, by giving that person a lien on the real property whose value has increased due to the improvement. (Civil Code, §§ 3110, 3112.) "All persons who, at the request of the owner or owner's agent, furnish labor, material . . . or other necessary services to a project for constructing a work of improvement on real property are entitled to a mechanic's lien unless they come within a statutory or case law exception." (Cal. Mechanics' Liens and Related Construction Remedies (Cont. Ed. Bar 3d ed. 2010) § 2.3, pp. 39-40.) Under section 3095, "'[o]riginal contractor' means any contractor who has a direct contractual relationship with the owner." A "subcontractor" is a contractor who does not have a direct contractual relationship with the owner. (§ 3104.) By virtue of the contract, the original contractor becomes the owner's agent. (§ 3110.) "A claimant who furnishes labor or material at the instance of any of the owner's statutory agents is entitled to mechanics' lien rights. [Citation.]" (Cal. Mechanics' Liens and Related Construction Remedies (Cont. Ed. Bar 3d ed. 2010) § 2.7, pp. 44; see also §§ 3110-3112.)
All further statutory references are to the Civil Code unless otherwise indicated.
Here, Clawson contracted with Contractor to construct a pool. Contractor retained Subcontractor for the purpose of plastering the pool. Although there was no written contract, Subcontractor received a work order from Contractor. Upon completion of the work, Subcontractor generated an invoice, which was given to both Contractor and Clawson. When Contractor failed to pay Subcontractor, Subcontractor served a 20-day notice on Clawson, and then a mechanic's lien on Clawson's real property. According to the facts, Subcontractor's work was authorized by Contractor, who was Clawson's agent. There was no privity of contract requirement. Accordingly, the trial court properly found in favor of Subcontractor.
III. MAY THE AMOUNT AWARDED ON THE LIEN INCLUDE PROFIT?
Next, Clawson contends the trial court erred in entering judgment in an amount that included Subcontractor's profit. Citing section 3123 and Lambert v. Superior Court (1991) 228 Cal.App.3d 383 (Lambert), he contends the amount of damages should have been limited to the "value of labor done and material furnished." We disagree.
Section 3123 provides that the mechanic's lien "shall be for the reasonable value of the labor, services, equipment, or materials furnished or for the price agreed upon by the claimant and the person with whom he or she contracted, whichever is less." (§ 3123, subd. (a).) In Lambert, supra, 228 Cal.App.3d at pp. 388-389, our colleagues in the First District, Division Three, addressed the issue of whether section 3123 permits a lien for delay damages. Deciding that it does not, the Lambert court concluded, "The function of the mechanic's lien is to secure reimbursement for services and materials actually contributed to a construction site, not to facilitate recovery of consequential damages . . . ." (Lambert, supra, at p. 389.) Applying this same logic, courts have found that attorney fees are also beyond the contemplation of section 3123. (Abbett Electric Corp. v. California Fed. Savings & Loan Assn. (1991) 230 Cal.App.3d 355, 360 (Abbett); Wilson's Heating & Air Conditioning v. Wells Fargo Bank (1988) 202 Cal.App.3d 1326, 1329-1330.)
Unlike delay damages or attorney fees, reasonable profits are not "beyond the contemplation of the mechanic's lien remedy." (Abbett, supra, 230 Cal.App.3d at p. 360.) If the purpose of a mechanic's lien is "to prevent unjust enrichment of a property owner at the expense of a laborer or material supplier" (Burton v. Sosinsky (1988) 203 Cal.App.3d 562, 568), then to deny a mechanic his or her reasonable profit for labor performed and materials supplied would be inconsistent with the statutory purpose. Section 3110, in relevant part, provides that "subcontractors . . . shall have a lien upon the property upon which they have bestowed labor or furnished materials . . . for the value of such labor done or materials furnished . . . ." (Italics added.) Reasonable consumers generally understand that the value of the labor performed, or materials supplied, includes a profit.
"The 'mechanic's lien law implements our state's constitutional mandate to protect "laborers of every class" and allow them to recover their entire compensation, regardless of the form the compensation takes. [Citations.]' [Citation.] Our Supreme Court has noted, '"The mechanic's lien is the only creditors' remedy stemming from constitutional command and our courts 'have uniformly classified the mechanics' lien laws as remedial legislation, to be liberally construed for the protection of laborers and materialmen.' [Citation.]" [Citation.]' [Citation.]" (N.V. Heathorn, Inc. v. County of San Mateo (2005) 126 Cal.App.4th 1526, 1535, italics added.)
For the above reasons, we conclude the trial court correctly entered judgment in an amount that included Subcontractor's profit.
IV. FAILURE TO SERVE PROPOSED JUDGMENT
Clawson contends the trial court committed reversible error by signing the judgment that was proposed and prepared by Subcontractor but never served on Clawson. He faults the trial court for signing a judgment that included language not found in the October 14, 2010, minute order. The language in question states that the "property be adjudged and decreed to be sold by the Sheriff of the County of Riverside, and that the proceeds of such sale be applied to satisfy the costs of these proceedings."
Subcontractor concedes that counsel failed to serve a copy of the proposed judgment on Clawson; however, it argues its action sought foreclosure of a mechanic's lien, not damages for breach of contract. Thus, the language in the judgment clarifies the court's minute order to reflect that Subcontractor prevailed on its action to foreclose on its mechanic's lien. Because Clawson appeals, he bears the burden of providing an adequate record which affirmatively proves error. (County of Orange v. Barratt American, Inc. (2007) 150 Cal.App.4th 420, 438-439.) Here, Clawson has not provided this court with Subcontractor's complaint which would establish the operative pleadings and Subcontractor's prayer.
Nonetheless, according to the record before this court, Clawson acknowledged this was an action on a mechanic's lien. Subcontractor stated this is an action for foreclosure on a mechanic's lien. Clawson agreed, clarifying, "we are in front of you, Your Honor, today because this is an amount that the trial judge comes up with as to if there is a foreclosure. And if there is a foreclosure, what amount that should be." Clawson further asked the court "to find that there is a zero amount and judgment for defendant, which would save his property and eradicate the mechanic's lien."
In his reply brief, Clawson claims Subcontractor sued for breach of contract and foreclosure of mechanic's lien. Given Clawson's failure to include the complaint in the record on appeal, coupled with his admission at trial that this action was for foreclosure on a mechanic's lien, we find Clawson's argument to be misleading.
Clearly, the above shows that Clawson knew Subcontractor sought a judgment to foreclose on its mechanic's lien on Clawson's property. The trial court ruled in favor of Subcontractor. According to Subcontractor, the language in the judgment was included "to provide clarification . . . as to . . . the nature of the remedy sought in the foreclosure of a mechanic's lien action and to distinguish it from judgment for damages." Based on the record before this court, we agree. If the judgment provided for more than Subcontractor asked for in its prayer, then Clawson should have raised it at the trial level by objecting. Having failed to do so, we reject his challenge on appeal.
V. AWARD OF COSTS ABSENT MEMORANDUM
According to the judgment, Subcontractor was awarded costs "in the amount of $185.00, and costs of recording the mechanic[']s lien . . . ." Clawson complains that the trial court erred in awarding $185 in costs when Subcontractor failed to file a memorandum of costs. In response, Subcontractor argues that because Clawson failed to raise this issue at trial level, he is precluded from doing so on appeal.
California Rules of Court, rule 3.1700, in relevant part, provides, "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment . . . or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case." (Cal. Rules of Court, rule 3.1700(a)(1).) Subcontractor concedes that it failed to file its memorandum of costs. Because Subcontractor failed to do so, the trial court erred in awarding $185 in costs.
We note that Clawson does not challenge the award of costs of recording the mechanic's lien. Such costs are mandatory pursuant to section 3150.
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VI. AWARD OF PREJUDGMENT INTEREST
According to the judgment, Subcontractor was awarded prejudgment interest in the amount of $1,920.45. On appeal, Clawson contends that pursuant to Lambert, supra, 228 Cal.App.3d 383, "'delay/interest damages' are not to be considered part of the reasonable value of labor or services." (Boldface in original.) Thus, he argues the trial court erred in signing a judgment "that included interest on the mechanic's lien." We disagree. Subcontractor was not seeking delay damages, he sought interest damages. Section 3287 allows the recovery of interest upon a specific damage amount. (Cal. Mechanics' Liens and Related Construction Remedies (Cont. Ed. Bar 3d ed. 2010) § 2.44, pp. 67.)
VII. DISPOSITION
The award of $185 in costs is reversed. In all other respects, the judgment is affirmed. Subcontractor is awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
MILLER
J.