Opinion
D059493
01-29-2013
COOLEY EQUIPMENT CORP., Plaintiff and Appellant, v. RIMROCK CA, LLC et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No.
37-2008-00103466-CU-CO-SC)
APPEAL from judgments of the Superior Court of San Diego County, William S. Cannon, Judge. Affirmed.
Plaintiff Cooley Equipment Corp. (Cooley) appeals judgments entered after the trial court granted summary judgment for defendants Otay Valley Quarry LLC (OVQ), JJJ&K Investments, LP, OV Three One LLC, and JJJ&K Investments Two, LLC (together JJJ&K), concluding there were no triable issues of material fact on Cooley's causes of action to enforce mechanic's and mining liens and that OVQ and JJJ&K were entitled to judgment as a matter of law. On appeal, Cooley contends the trial court erred because there are triable issues of material fact regarding whether: (1) Cooley properly served the statutorily-required 20-day preliminary notice of lien on the owner or reputed owner of the Chula Vista quarry property on which its leased equipment was located; (2) Cooley could have a mechanic's lien for its leased equipment used by the lessee on the quarry property; and (3) Cooley could have a mining lien for its leased equipment used by the lessee on the quarry property. As we explain below, the trial court properly granted OVQ's and JJJ&K's motions for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2007, OVQ purchased from RR Quarry, LLC (RR Quarry), in a sale/leaseback transaction, real property (Property) located in Chula Vista on which a hard-rock quarry (Quarry) was located. From March 2007 through April 2009, Rimrock CA, LLC (Rimrock), operated the Quarry. Rock was removed from the Quarry by drilling holes in the hard rock, placing explosives in the holes, and blasting rock from the ground. The blasted rock was then collected from the ground's surface, loaded onto large trucks, and transported to an on-site rock-crushing facility. In March 2007, Rimrock contracted with Sukut Construction, Inc. (Sukut) to haul the blasted rock from the Quarry to the on-site rock-crushing facility. In 2008, Rimrock contracted with Lubanko Brothers, Inc. (Lubanko) to operate the rock-crushing facility. That facility crushed the large rocks into rock aggregate, which Rimrock sold for use in construction (e.g., road base, asphalt, concrete, and pipe bedding).
In April 2008, Cooley entered into five written lease agreements pursuant to which Cooley leased certain rock-crushing and related equipment to Lubanko for use at Lubanko's rock-crushing facility at the Property. In June 2008, Cooley entered into a joint payment agreement (JPA) with Rimrock and Lubanko to ensure Cooley would receive the lease payments in the event Lubanko defaulted.
On October 3, 2008, after apparently first serving JJJ&K with a preliminary notice of lien on the Property, Cooley recorded a mechanic's lien against the Property in the amount of $44,150.93 for rent due for the rock-crushing equipment it leased to Lubanko. That lien stated JJJ&K Investments, LP was the owner or reputed owner of the Property. On or about December 23, Cooley recorded an amended mechanic's lien against the Property in the amount of $71,463.06 for the rent due for rock-crushing equipment it leased to Lubanko. That amended lien again stated JJJ&K Investments, LP was the owner or reputed owner of the Property.
The parties do not cite to any document in the record on appeal as constituting the purported 20-day preliminary notice. However, because the parties apparently do not dispute that Cooley served a preliminary notice on JJJ&K, for purposes of this appeal we presume JJJ&K was timely served with that notice.
In June 2009, apparently after Lubanko did not pay Cooley rent in full for the equipment it leased, Cooley filed a first amended complaint against Lubanko, JJJ&K, Rimrock and other defendants, alleging causes of action for breach of written contract and to enforce its mechanic's and mining liens. In November 2009, Cooley amended that complaint to add OVQ as a defendant.
Cooley apparently filed its original complaint in December 2008. According to Cooley's representation on appeal, Lubanko filed for bankruptcy in February 2009.
OVQ filed a motion for summary judgment on the two causes of action alleged against it, arguing Cooley did not serve a valid 20-day preliminary notice of its lien, Cooley's equipment did not contribute to a work of improvement, and the Quarry was not a mine subject to a mining lien. JJJ&K also filed a motion for summary judgment on the three causes of action alleged against it, arguing it did not have a contractual relationship with Cooley and it did not have any ownership interest in the Property. OVQ and JJJ&K each submitted separate statements of undisputed material facts, declarations, and other papers in support of their motions.
Cooley opposed both motions for summary judgment, arguing there were triable issues of material fact regarding whether JJJ&K was the owner or reputed owner of the Property, whether Cooley's equipment was used in a work of improvement, and whether the Quarry was a mine. In support of its opposition, Cooley submitted separate statements of disputed and undisputed material facts, declarations, and other papers.
On January 14, 2011, the trial court issued a minute order granting OVQ's motion for summary judgment. The court concluded Cooley's "leased equipment was not used in a work of improvement within the meaning of [former Civil Code] section 3106." It further concluded "[t]here is no competent evidence to support [James] Gasparo's conclusory statement that [Cooley] reasonably believed in good faith that JJJ&K Investments was the owner of the [P]roperty when it served the preliminary notice." The court also concluded the Quarry was not a mine for purposes of a mining lien because minerals were not extracted from it.
On January 14, 2011, the trial court also issued a minute order granting JJJ&K's motion for summary judgment. The court concluded JJJ&K was not a party to the JPA and was not the owner of the Property.
The trial court entered separate judgments for OVQ and JJJ&K. Cooley timely filed notices of appeal.
DISCUSSION
I
Summary Judgment Standard of Review
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
Aguilar clarified the standards that apply to summary judgment motions under section 437c. (Aguilar, supra, 25 Cal.4th at pp. 843-857.) Generally, if all the papers submitted by the parties show there is no triable issue of material fact and the " 'moving party is entitled to a judgment as a matter of law,' " the court must grant the motion for summary judgment. (Aguilar, at p. 843, quoting § 437c, subd. (c).) Section 437c, subdivision (p)(2), states:
All statutory references are to the Code of Civil Procedure unless otherwise specified.
"A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto."Aguilar made the following observations:
"First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . .Aguilar stated:
"Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. . . .
"Third, and generally, how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. . . . [I]f a defendant moves for summary judgment against . . . a plaintiff [who would bear the burden of proof by a preponderance of
the evidence at trial], [the defendant] must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not--otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Aguilar, supra, 25 Cal.4th at pp. 850-851, fns. omitted.)
"To speak broadly, all of the foregoing discussion of summary judgment law in this state, like that of its federal counterpart, may be reduced to, and justified by, a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case, . . . the 'court should grant' the motion 'and avoid a . . . trial' rendered 'useless' by nonsuit or directed verdict or similar device." (Aguilar, supra, 25 Cal.4th at p. 855, italics added.)
"[E]ven though the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact. . . . In so doing, it does not decide on any finding of its own, but simply decides what finding such a trier of fact could make for itself." (Aguilar, supra, 25 Cal.4th at p. 856.) "[I]f the court determines that all of the evidence presented by the plaintiff, and all of the inferences drawn therefrom, show and imply [the ultimate fact] only as likely as [not] or even less likely, it must then grant the defendants' motion for summary judgment, even apart from any evidence presented by the defendants or any inferences drawn therefrom, because a reasonable trier of fact could not find for the plaintiff. Under such circumstances, the [factual] issue is not triable--that is, it may not be submitted to a trier of fact for determination in favor of either the plaintiff or the defendants, but must be taken from the trier of fact and resolved by the court itself in the defendants' favor and against the plaintiff." (Id. at p. 857, fn. omitted.)
"On appeal, we exercise 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citation.] 'The appellate court must examine only papers before the trial court when it considered the motion, and not documents filed later. [Citation.] Moreover, we construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.' " (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)
II
Twenty-day Preliminary Notice
Cooley contends the trial court erred by concluding it did not properly serve the statutorily-required 20-day preliminary notice of lien on the owner or reputed owner of the Property and therefore its purported mechanic's and mining liens were invalid or not perfected. Cooley argues there is a triable issue of material fact whether it had a reasonable and good faith belief that JJJ&K was the owner of the Property, thereby precluding summary judgment.
A
After apparently first serving JJJ&K with a preliminary notice of lien on the Property, Cooley recorded a mechanic's lien against the Property in the amount of $44,150.93 for rent for the rock-crushing equipment it leased to Lubanko. That lien stated JJJ&K Investments, LP was the owner or reputed owner of the Property. Cooley subsequently recorded an amended mechanic's lien against the Property in the amount of $71,463.06 for rent for the rock-crushing equipment it leased to Lubanko. That amended lien again stated JJJ&K Investments, LP was the owner or reputed owner of the Property.
In moving for summary judgment, OVQ argued that although it owned the Property since October 2007, Cooley did not serve it with a 20-day preliminary notice of lien regarding its (Cooley's) 2008 lease of equipment to Lubanko. In support of its motion, OVQ submitted a separate statement of undisputed material facts asserting it had been the owner of the Property since October 2007 and Cooley did not serve a 20-day preliminary notice on it. In support of its separate statement, OVQ submitted a declaration of Kriston Qualls, the Secretary of OVQ's sole member (Moller Investment Group, Inc.), stating OVQ purchased the Property in October 2007 and attached a copy of the grant deed for the Property. Qualls further stated OVQ was not involved in the operation of the Quarry. Qualls was OVQ's representative who was primarily responsible for monitoring all legal matters regarding the Property, including any filing or service of preliminary notices of mechanic's liens and other legal notices recorded or filed against the Property. Qualls stated: "In 2008, I was not aware, nor did I receive any notice (including, without limitation, a preliminary 20-day notice pursuant to [former] Civil Code section 3097) that [Cooley] had leased equipment to [Lubanko] in connection with its operation of the rock crushing facility."
In moving for summary judgment, JJJ&K argued it was never the owner or reputed owner of the Property and had never represented itself as the owner or reputed owner of the Property. In support of its motion, JJJ&K submitted a separate statement of undisputed material facts asserting it never had any ownership interest in the Property. In support of its separate statement, JJJ&K submitted the declaration of Ronald Therrien, its chief financial officer, stating JJJ&K had never owned the Property, and attached a copy of a grant deed showing OVQ had owned the Property since October 2007.
In opposition to OVQ's motion for summary judgment, Cooley argued it had served a valid 20-day preliminary notice of lien because it served that notice on JJJ&K, which it reasonably and in good faith believed to be the owner of the Property. Cooley argued there was a triable issue of fact regarding whether its belief was reasonable and in good faith. In support of its opposition, Cooley submitted a separate statement of disputed and undisputed material facts, admitting OVQ had been the owner of the Property since October 2007. However, Cooley asserted: "While Cooley did not serve a preliminary 20-day notice on [OVQ], Cooley did serve a valid preliminary 20-day notice on [JJJ&K] with a good faith and reasonable belief that [JJJ&K] was the proper owner of the [P]roperty. In support of that statement, Cooley submitted the declaration of James Gasparo, stating he was "an Owner" of Cooley and that Cooley "served a Preliminary 20-day Notice on the reputed owner of the [P]roperty, JJJ&K Investments, [LP]." Gasparo further stated: "[Cooley] reasonably believed, in good faith, that JJJ&K Investments, [LP] was the owner of the [P]roperty at the time, and that [Cooley] was validly complying with the statutory requirements by serving JJJ&K Investments, [LP] with a valid Preliminary 20-day Notice."
In further support of its opposition, Cooley submitted a separate statement of additional undisputed material facts, asserting: "When serving the reputed owner of the [P]roperty JJJ&K Investments, [LP] with a valid 20-day Preliminary Notice, [Cooley] reasonably believed that [it was,] in fact, the owner of the [P]roperty at the time." In support of that asserted fact, Cooley cited Gasparo's declaration, quoted above, and Exhibit C to the declaration of Patrick Hartnett, Cooley's attorney, who stated Exhibit C was a true and accurate copy of Cooley's summons and complaint filed on December 24, 2008. The attached Exhibit C consists of a summons and unverified complaint filed by Cooley against Lubanko, JJJ&K, and other defendants. That complaint alleged Cooley "is informed and believes . . . that at all times mentioned [JJJ&K] and Defendants 1 to 500 . . . were the owners or reputed owners of [the Property]." The complaint further alleged "[Cooley] duly gave [JJJ&K], the reputed owner(s), a written preliminary notice as prescribed by and in accordance with the requirements of [former] section 3097 of the Civil Code . . . ."
In opposition to JJJ&K's motion for summary judgment, Cooley argued JJJ&K did not provide conclusive proof that it was not the owner of the Property. Cooley argued the grant deed submitted by JJJ&K transferred property identified by parcel numbers and legal descriptions and all but one of those parcel numbers "are no longer 'good' parcel numbers." Furthermore, Cooley argued the street address on its mechanic's and mining liens did not "match up" with any of the parcel numbers identified in the grant deed. Therefore, Cooley argued the grant deed was insufficient to support JJJ&K's assertion it did not have any ownership interest in the Property. In support of its opposition, Cooley submitted a separate statement of disputed and undisputed material facts, asserting: "There is no conclusive evidence to support the fact that [JJJ&K did] not have any ownership interest in the [P]roperty. The Grant Deed does not purport to transfer the same parcels . . . included in [Cooley's] Mechanic's Lien, and Mining Lien." In support of that assertion, Cooley cited the declarations of its attorneys, Hartnett, Jessica Jasper, and Meghan George. Exhibits A through C to Hartnett's declaration consist of copies of the grant deed transferring real property from RR Quarry to OVQ, Cooley's amended mechanic's lien, and Cooley's original mechanic's lien.
Jasper's declaration stated she spoke with an unnamed employee of the San Diego County Assessor's Office who informed her that all but one of the parcel numbers identified on OVQ's grant deed were no longer "good" parcels and that the remaining "good" parcel number identified a parcel consisting of 136 acres on Otay Valley Road, but it did not have a particular street address. That employee informed Jasper that the parcel did not have the address of 2041 Heritage Road, Chula Vista (the address on Cooley's amended mechanic's lien). George stated she witnessed Jasper's conversation with the unnamed employee of the Assessor's Office and confirmed Jasper's description of that conversation, as discussed above. George further stated that when she asked another employee the reason why the parcel number did not have a street address, the employee informed her that if no buildings were placed on the land, the parcel is not given a particular street address. The employee could not determine whether the address of 2041 Heritage Road fell within the grant deed's parcel number. In further support of its opposition, Cooley submitted a separate statement of additional undisputed material facts essentially asserting the same facts described above, including that it cannot be determined whether the address of 2041 Heritage Road (as included in Cooley's mechanic's liens) falls within the only remaining valid parcel number identified in OVQ's grant deed.
In reply to Cooley's opposition to its motion, JJJ&K argued Cooley's evidence did not refute the fact that the grant deed clearly and unambiguously conveyed the Property from RR Quarry to OVQ, and JJJ&K never had any ownership of the Property. In reply to Cooley's opposition to its motion, OVQ argued Cooley admitted it had not served OVQ with the required 20-day preliminary notice. OVQ further argued Cooley had not provided any evidence to support its assertion it had a reasonable and good faith belief that JJJ&K was the reputed owner of the Property. It argued Gasparo's conclusory statement in his declaration to that effect was an improper legal conclusion lacking any factual foundation and therefore did not satisfy Cooley's burden of production of evidence sufficient to make a prima facie showing of the existence of a triable issue of material fact.
In granting OVQ's motion for summary judgment, the trial court stated regarding Cooley's mechanic's lien claim:
"[Cooley] was required to give a written preliminary notice to the owner or reputed owner as a prerequisite to enforcing a lien. ([Former Civ. Code, § 3097.]) [Cooley] admittedly did not provide notice to the owner, [OVQ], but to another entity [JJJ&K] that it contends is a reputed owner. Whether such notice is sufficient turnsRegarding Cooley's mining lien claim, the court likewise concluded: "[F]or the reasons given above[,] [Cooley] failed to serve a preliminary notice on [OVQ]."
on whether a reasonable person, given [Cooley's] information, would have been led to believe in good faith that the reputed owner was the actual owner[.] [Citation.] There is no competent evidence to support Gasparo's conclusory statement that [Cooley] reasonably believed in good faith that [JJJ&K] was the owner of the [P]roperty when it served the preliminary notice. For example, there is no evidence who, if anyone, told Gasparo that [JJJ&K] owned the [P]roperty or that [Cooley] consulted public records which indicated [JJJ&K] owned the [P]roperty."
In granting JJJ&K's motion for summary judgment, the trial court stated:
"The parties agree that the mechanic's and mining lien claims can only be alleged against the owner of the [P]roperty. ([Civ. Code,] §§ 3059, 3060.) The liens were for rock crushing rental equipment provided for work at 2041 Heritage Road, Chula Vista. There is no evidence from which a trier of fact could conclude JJJ&K owned the [Property]. Therrien's declaration states JJJ&K never had any ownership interest in the [Property]. Moreover, a grant deed recorded on October 23, 2007[,] conveys to [OVQ] a quarry and extended quarry. The declarations of Jasper and George relate conversations with the [A]ssessor's [O]ffice which state that the address of 2041 Heritage Road is not associated with a parcel number. However, the [A]ssessor's [O]ffice explained that an address would not be associated with a parcel number if there are no buildings on the land. This would explain why the deed lists parcel numbers rather than a property address."Accordingly, the court entered judgments for OVQ and JJJ&K.
B
"The California mechanics' lien derives from article XIV, section 3 of the California Constitution. The liens of mechanics, artisans, and materialmen are favored in California law ' ". . . because those parties have, at least in part, created the very property upon which the lien attaches . . . ." ' [Citations.] Under the statutory scheme enacted to implement the enforcement of mechanics' liens ([former] chs. 1 and 2 of tit. 15, pt. 4, div. 3 of the Civ. Code), persons who furnish labor or materials on a work of improvement are entitled to file a mechanic's lien on the property where the improvement is located. The materialman is required to file a preliminary notice with the owner, the general contractor, and the construction lender within 20 days of furnishing materials for improvement ([former Civ. Code,] §§ 3097, 3114.) It must record its claim of lien within 90 days of completing the improvement ([former Civ. Code,] § 3116), and once recorded the mechanics' lien constitutes a direct lien on the improvement and the real property ([former Civ. Code,] §§ 3128, 3129.)" (Grinnell Fire Protection Systems Co. v. American Sav. & Loan Assn. (1986) 183 Cal.App.3d 352, 355.)
Effective July 1, 2012, former Title 15 of Part 4 of Division 3 of the Civil Code (consisting of §§ 3082 to 3267) was repealed and replaced with new Part 6 of Division 4 of the Civil Code (consisting of §§ 8000 to 9566). (Stats. 2010, ch. 697, §§ 16, 20.) Although the instant trial court proceedings occurred prior to that effective date, for purposes of this opinion we refer to those former statutes by their new section designations.
"A claimant may enforce a lien only if the claimant has given preliminary notice to the extent required by Chapter 2 (commencing with Section 8200) and made proof of notice." (Civ. Code, § 8410.) Except as otherwise provided by statute, before recording a lien claim a claimant must give preliminary notice to the "owner or reputed owner" of the property on which a lien will be claimed for work performed or materials used. (Civ. Code, § 8200, subd. (a)(1).) If preliminary notice is not given to the owner or reputed owner, the lien claim is not valid. (Civ. Code, § 8200, subd. (c) [preliminary notice is "a necessary prerequisite to the validity of a lien claim"].) A preliminary notice must include the name and address of the owner or reputed owner, a description of the site sufficient for identification, the name and address of the person giving the notice, a general description of the work provided, an estimate of the total price of the work provided and to be provided, and other required information. (Civ. Code, §§ 8102, subd. (a), 8202, subd. (a).) "A preliminary notice shall be given not later than 20 days after the claimant has first furnished work on the work of improvement." (Civ. Code, § 8204, subd. (a).) Strict compliance with Civil Code section 8200 et seq. is required. (Kim v. JF Enterprises (1996) 42 Cal.App.4th 849, 854-855; Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 721.)
The statutory requirements for preliminary notice of a mechanic's lien claim also apply to mining lien claims. Mining liens provided for by Civil Code section 3060 "shall be enforced in the same manner as those provided for by Part 6 (commencing with Section 8000) of Division 4." (Civ. Code, § 3060, subd. (b).)
C
Cooley argues there is a triable issue of material fact whether it complied with the statutory requirements for preliminary notice of mechanic's and mining lien claims by serving JJJ&K, and not OVQ, with a preliminary notice.
A preliminary notice must be served on the "owner or reputed owner" of the property on which the claimant's work is performed or materials are used. (Civ. Code, § 8200, subd. (a)(1).) A "reputed" owner is "a person or entity reasonably and in good faith believed by the claimant to be the actual [owner]." (Cf. Kodiak Industries, Inc. v. Ellis (1986) 185 Cal.App.3d 75, 87 (Kodiak)[regarding reputed construction lenders]; see also Brown Co. v. Appellate Department (1983) 148 Cal.App.3d 891, 900 (Brown).) Brown and Kodiak "set forth similar tests for analyzing whether a claimant held a good faith belief that the reputed [owner] was the actual [owner], i.e., would a reasonable person, given the claimant's information, have been led to believe in good faith that the reputed [owner] was the actual [owner]?" (Force Framing, Inc. v. Chinatrust Bank (U.S.A.) (2010) 187 Cal.App.4th 1368, 1374 (Force Framing)) Brown held a claimant was not required to check county records to show it held a good faith belief the reputed lender was the actual lender, but rather could prove that belief with evidence the claimant relied on information supplied by the general contractor. (Brown, at pp. 901, 903; Force Framing, at p. 1374.) "In other words, if a laborer or materialman has reasonably relied on an owner's and/or general contractor's statements identifying a lender [or owner], then the laborer or materialman does not need to check county records to prove he had a good faith belief that the lender [or owner] was the actual lender [or owner]." (Force Framing, at p. 1376.) Nevertheless, Kodiak concluded "the information on which a reasonable claimant should rely must be cloaked with sufficient indicia of reliability--such as statements from the owner, general contractor, or lender itself or their agents--so as to distinguish this information from a mere guess or some ill-founded conjecture." (Kodiak, at p. 87, italics added; see Force Framing, at pp. 1374, 1377.)
Based on the parties' summary judgment papers, we conclude there is no triable issue of material fact on the question whether Cooley properly served JJJ&K, as the reputed owner of the Property, with a 20-day preliminary notice. In support of its motion for summary judgment, OVQ's separate statement of undisputed material facts asserted it had been the owner of the Property since October 2007 and it had not been served with a 20-day preliminary notice. OVQ submitted Quall's declaration stating OVQ purchased the Property in October 2007 and attaching a copy of the grant deed. Qualls also stated: "In 2008, I was not aware, nor did I receive any notice (including, without limitation, a preliminary 20-day notice pursuant to [former] Civil Code section 3097) that [Cooley] had leased equipment to [Lubanko] in connection with its operation of the rock crushing facility." Based thereon, we conclude OVQ met its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact on the issue of whether Cooley served the statutorily-required preliminary notice on the owner or reputed owner of the Property. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.)
Because OVQ carried its initial burden of production, it caused a shift in the burden of production, subjecting Cooley to a burden of production of its own to make a prima facie showing of the existence of a triable issue of material fact on the issue of whether it properly served a preliminary notice on an owner or reputed owner of the Property. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) Based on our review of the record, we conclude Cooley did not meet its burden of production to show a triable issue of fact existed on that question. In opposing OVQ's motion, Cooley submitted Gasparo's declaration in which he stated: "[Cooley] reasonably believed, in good faith, that JJJ&K Investments, [LP] was the owner of the [P]roperty at the time . . . ." Cooley also submitted Exhibit C to Hartnett's declaration, which is the December 2008 summons and unverified complaint filed by Cooley against Lubanko, JJJ&K, and other defendants. That complaint alleged Cooley "is informed and believes . . . that at all times mentioned [JJJ&K] and Defendants 1 to 500 . . . were the owners or reputed owners of [the Property]."
Contrary to Cooley's assertion on appeal, neither Gasparo's declaration nor its unverified complaint was sufficient to make a prima facie showing there is a triable issue regarding whether Cooley properly served a preliminary notice on an owner or reputed owner of the Property. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) Rather than citing specific information that purportedly caused Cooley to believe JJJ&K was the owner of the Property, Gasparo's declaration and Cooley's complaint merely "parroted" the legal standard for a reputed owner (i.e., a reasonable and good faith belief that the person served was the actual owner of the property). As the trial court concluded, Gasparo's statement--that Cooley "reasonably believed, in good faith," JJJ&K was the owner of the Property--was conclusory and insufficient to show there is a triable issue of fact on the question of whether JJJ&K was the reputed owner of the Property for purposes of service of its 20-day preliminary notice. Gasparo's conclusory statement did not reveal, in specific or even general terms, what information Cooley purportedly received and relied on in forming its belief, thereby providing no evidence on which a trier of fact could find Cooley had a reasonable and good faith belief that JJJ&K was the owner of the Property.
Furthermore, Cooley did not cite any information that potentially had sufficient indicia of reliability and therefore could have supported a reasonable and good faith belief that JJJ&K was the owner of the Property. As we noted above, Kodiak concluded "the information on which a reasonable claimant should rely must be cloaked with sufficient indicia of reliability--such as statements from the owner, general contractor, or lender itself or their agents--so as to distinguish this information from a mere guess or some ill-founded conjecture." (Kodiak, supra, 185 Cal.App.3d at p. 87, italics added.) In opposing OVQ's motion for summary judgment, Cooley did not submit any evidence showing it had received and relied on statements from OVQ, JJJ&K, Rimrock, Lubanko, or any other party associated with the Property that arguably caused it to reasonably and in good faith believe JJJ&K was the owner of the Property. Likewise, there is no evidence showing Cooley searched public records (e.g., deeds recorded at the County Recorder's Office) and obtained information causing it to believe, reasonably and in good faith, that JJJ&K was the owner of the Property. Cooley did not meet its burden of production to make a prima facie showing there is a triable issue of fact whether JJJ&K was the reputed owner of the Property. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.)
Because OVQ met its initial burden of production, the burden shifted to Cooley to make a prima facie showing there is a triable issue of material fact. However, Cooley, in effect, merely relied on its allegations that JJJ&K was the reputed owner of the Property and failed to "set forth the specific facts showing that a triable issue of material fact exists" regarding whether it reasonably and in good faith believed JJJ&K was the owner of the Property. (§ 437c, subd. (p)(2), italics added.) Because "all of the evidence presented by [Cooley], and all of the inferences drawn therefrom, show and imply [that JJJ&K was the reputed owner of the Property] only as likely as [not] or even less likely," the trial court correctly granted OVQ's motion for summary judgment. (Aguilar, supra, 25 Cal.4th at p. 857.) Absent Cooley's service of a 20-day preliminary notice on the owner or reputed owner of the Property, Cooley cannot establish it had a valid statutory mechanic's or mining lien on the Property. (Civ. Code, §§ 8200, subds. (a)(1), (c); 8410; 3060, subd. (b).) The record shows OVQ was the actual owner of the Property, but was not served with a preliminary notice, and JJJ&K, which was served with a preliminary notice, was not the reputed owner of the Property. Because all the summary judgment papers submitted by OVQ and Cooley show there is no triable issue of material fact on one element of Cooley's mechanic's lien and mining lien claims (i.e., that Cooley served a 20-day preliminary notice on the owner or reputed owner of the Property) and OVQ is entitled to judgment as a matter of law, the trial court correctly granted OVQ's motion for summary judgment. (§ 437c, subds. (c), (p)(2).)
D
We further conclude the trial court correctly granted JJJ&K's motion for summary judgment. Because, as we discussed above, Cooley did not serve a 20-day preliminary notice on the owner or reputed owner of the Property, it did not satisfy the statutory prerequisites for foreclosing on its purported mechanic's and mining liens. (Civ. Code, §§ 8200, subds. (a)(1), (c); 8410; 3060, subd. (b).)
Because Cooley did not present any substantive legal argument or analysis on appeal showing the trial court erred by granting summary adjudication for JJJ&K on Cooley's breach of contract cause of action, we need not address the merits of that ruling and, instead, presume the court correctly granted JJJ&K summary adjudication on that cause of action.
Furthermore, because the parties' summary judgment papers show there is no triable issue of material fact on the question of whether JJJ&K was the owner of the Property, JJJ&K cannot be subject to a mechanic's or mining lien. In support of its motion, JJJ&K submitted Therrien's declaration in which he stated JJJ&K had never owned the Property and to which he attached a copy of a grant deed showing title to the Property was transferred to OVQ in October 2007. In opposing JJJ&K's motion, Cooley argued JJJ&K did not provide conclusive proof it was not the owner of the Property. Cooley submitted Jasper's declaration in which she stated she spoke with an employee of the San Diego County Assessor's Office who informed her that all but one of the parcel numbers identified on OVQ's grant deed were no longer "good" parcels and the remaining "good" parcel number identified a parcel consisting of 136 acres on Otay Valley Road, but it did not have a particular street address. However, that evidence was insufficient to make a prima facie showing that JJJ&K owned, or had an ownership interest in, the Property. Rather, it showed, at most, there was a possible inconsistency between the street address Cooley included in its preliminary notice and the legal description contained in OVQ's 2007 grant deed. Because JJJ&K carried its initial burden of production to show there was no triable issue of fact regarding its nonownership of the Property, and Cooley did not carry its burden to present evidence showing such a triable issue existed, the trial court correctly concluded JJJ&K did not own the Property and granted it summary adjudication on Cooley's mechanic's lien and mining lien causes of action. Absent JJJ&K's ownership of or other interest in the Property, mechanic's and mining lien causes of action cannot be maintained against JJJ&K.
For the first time on appeal, Cooley cites additional evidence in support of its argument that there is a triable issue whether JJJ&K was the owner of the Property. It cites the JPA pursuant to which Rimrock and Lubanko assured Cooley it would receive the equipment lease payments in the event Lubanko defaulted. However, because that evidence was not cited by Cooley in opposing JJJ&K's motion below, we, like the trial court, cannot consider it in determining whether Cooley carried its burden to present evidence showing there is a triable issue of fact whether JJJ&K was the owner of the Property. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851; Seo v. All-Makes Overhead Doors, supra, 97 Cal.App.4th at pp. 1201-1202.) In any event, even were we to consider that evidence, it does not show there is a triable issue of material fact. Contrary to Cooley's apparent assertion, the JPA does not show JJJ&K was a party to that agreement. Instead, it shows that although JJJ&K was initially identified in the JPA as the owner of the Property, that reference was crossed out and replaced with Rimrock as the operator of the Quarry. Cooley did not submit any evidence supporting a reasonable inference that JJJ&K or any other party represented to it that JJJ&K was the owner of the Property. The JPA, even had it been presented to the trial court in opposing JJJ&K's motion, would not have been sufficient to create a triable issue of fact on the question of whether JJJ&K was the owner of the Property. (§ 437c, subd. (p)(2); Aguilar, at pp. 850-851, 856-857.)
Mechanic's liens and mining liens encumber property (e.g., the Property) and any work of improvement on it, and do not "encumber" an entity (e.g., JJJ&K) or make it personally or directly liable. (See generally Civ. Code, § 8440; Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803, 808; Iknoian v. Winter (1928) 94 Cal.App. 223, 225-226.) Absent a contractual relationship, any action to foreclose a mechanic's or mining lien on the Property is against the Property and any work of improvement on it, requiring a plaintiff to name as defendants the Property's owner (OVQ) and any lenders or other parties with an interest in the Property, and not JJJ&K, which (as discussed above) has no ownership or other interest in the Property. (R.D. Reeder Lathing Co. v. Allen (1967) 66 Cal.2d 373, 376; cf. Grinnell Fire Protection System Co. v. American Sav. & Loan Assn., supra, 183 Cal.App.3d at pp. 357-358; Parsons v. Robinson (1929) 206 Cal. 378, 385-386 (dis. opn. of Preston, J.).) Therefore, the trial court properly granted JJJ&K's motion for summary judgment.
III
Additional Grounds for Summary Adjudication
of Mechanic's Lien Cause of Action
Because of our conclusions above we need not address the parties' remaining contentions. We nevertheless conclude there are additional grounds that support the trial court's grant of summary adjudication of Cooley's cause of action to enforce its purported mechanic's lien. We note Cooley's rock-crushing equipment was not used on a "work of improvement" on the Property that would support a statutory mechanic's lien.
A person who provides work for a work of improvement has a mechanic's lien on that work of improvement and the real property on which that work of improvement is situated. (Civ. Code, §§ 8400, 8440.) Civil Code section 8050 provides:
"(a) 'Work of improvement' includes, but is not limited to:"Work is authorized for a work of improvement or for a site improvement [if] . . . [¶] (a) [i]t is provided at the request of or agreed to by the owner[; or] [¶] (b) [i]t is provided or authorized by a direct contractor, subcontractor, architect, project manager, or other person having charge of all or part of the work of improvement or site improvement." (Civ. Code, § 8404.)
"(1) Construction, alteration, repair, demolition, or removal, in whole or in part, of, or addition to, a building, wharf, bridge, ditch, flume, aqueduct, well, tunnel, fence, machinery, railroad, or road.
[¶] . . . [¶]
"(3) Filling, leveling, or grading of real property.
"(b) Except as otherwise provided in this part, 'work of improvement' means the entire structure or scheme of improvement as a whole, and includes site improvement."
In the circumstances in this case, as shown by the undisputed evidence submitted by the parties, we conclude there was no "work of improvement" occurring on the Property in 2008 and, even assuming there was, Cooley's rock-crushing equipment did not add or contribute to that work of improvement. The record shows rock was removed from the Quarry by drilling holes in the hard rock, placing explosives in the holes, and blasting rock from the ground. The blasted rock was then collected from the ground's surface, loaded onto large trucks, and transported to an on-site rock-crushing facility. That facility crushed the large rocks into rock aggregate, which was sold for use in construction (e.g., road base, asphalt, concrete, and pipe bedding). Those activities do not constitute a "work of improvement" as defined by Civil Code section 8050. The removal of rock from the Quarry's ground surface, which rock was then crushed and sold to third parties, did not involve the "[c]onstruction, . . . demolition, or removal . . . of . . . a building, . . . ditch [or] flume." (Civ. Code, § 8050, subd. (a).) In fact, there is no evidence showing those quarry operations added value to or otherwise improved the Property. Instead, the evidence shows those operations resulted in the removal of valuable matter (i.e., hard rock) from the Quarry for no other purpose than to sell it for profit, thereby presumably causing a decrease in the value of the Property. (Cf. United Rentals Northwest, Inc. v. Snider Lumber Products, Inc. (2009) 174 Cal.App.4th 1479, 1484-1486 [leased equipment used to remove buildings, which removal benefited the real property, contributed to a work of improvement].) Cooley did not submit any evidence below that could support a reasonable inference to the contrary. There was no work of improvement on or to the Property that could support a statutory mechanic's lien.
Assuming arguendo the blasting and removal of rock improved the Property and constituted a work of improvement, we nevertheless would conclude the operations of the separate rock-crushing facility was not work that contributed to that work of improvement. Crushing of rock for the sale of rock aggregate to third parties presumably is an activity that could be performed either on-site or off-site. In this case, the blasted rock was loaded onto large trucks and hauled to the on-site rock-crushing facility. However, trucks presumably could have, instead, hauled the blasted rock off-site for crushing. Accordingly, the rock-crushing operations performed by Lubanko with Cooley's leased equipment was not work that improved or benefited the Property and therefore Cooley could not have any mechanic's lien on the Property for its leased rock-crushing equipment.
Furthermore, we doubt that OVQ, as the Property's owner, or any agent of OVQ, authorized the lease of Cooley's rock-crushing equipment to support a mechanic's lien. Instead, Cooley's lease was with Lubanko, which subcontracted with Rimrock, the Quarry's operator, to provide rock-crushing services. Therefore, it is doubtful Cooley could obtain a mechanic's lien by leasing rock-crushing equipment to Lubanko. (Civ. Code, § 8404; cf. Blakemore Equip. Co. v. Braddock, Logan & Valley (1969) 269 Cal.App.2d 12, 14-17.)
IV
Additional Grounds for Summary Adjudication
of Mining Lien Cause of Action
Because of our conclusions in part II above we need not address the parties' remaining contentions regarding Cooley's purported mining lien. We nevertheless conclude there are additional grounds that support the trial court's grant of summary adjudication of Cooley's cause of action to enforce its purported mining lien. Prior to July 1, 2012, Civil Code section 3060, subdivision (b), provided in pertinent part: "Any person who performs labor in any mining claim or claims, or in or upon any real property worked as a mine, either in the development thereof or in working thereon by the subtractive process, or furnishes materials to be used or consumed therein, has a lien upon the same and the works owned and used by the owners for milling or reducing the ores from the same, for the value of the work or labor done or materials furnished by each . . . ." (Italics added.) Assuming arguendo the Quarry is a "mine" under Civil Code section 3060, based on the undisputed evidence presented below, Cooley did not perform any labor or furnish any material used or consumed in that mine. Rather, Cooley only leased equipment to Lubanko, which, in turn, used that equipment to crush rock removed from the Quarry and hauled to its rock-crushing facility. Unlike Civil Code section 8400, which expressly provides for mechanic's liens for lessors that lease equipment used in a work of improvement, Civil Code section 3060 does not contain that express provision for mining liens. Accordingly, we should not imply Civil Code section 3060 provides a mining lien for equipment lessors when it expressly included liens for equipment lessors in Civil Code section 8400 and excluded any reference to equipment lessors in Civil Code section 3060. (See generally Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 10-11; Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 691.)
We have received and considered the parties' supplemental briefs regarding the effect on this appeal of the Legislature's recent enactment amending Civil Code section 3060's definition of a "mine" for purposes of a mining lien. (Stats. 2012, ch. 263.) However, because we dispose of this appeal on other grounds, we need not, and do not, address the effect, if any, of that legislation on this appeal. Likewise, we need not, and do not, discuss or rely on Sukut Construction, Inc. v. Rimrock CA LLC (2011) 199 Cal.App.4th 817, superseded by statute (Stats. 2012, ch. 263), which addressed the definition of a "mine" under former Civil Code section 3060.
As noted above, the Legislature recently amended Civil Code section 3060. (Stats. 2012, ch. 263.)
In any event, assuming arguendo equipment lessors may have mining liens under Civil Code section 3060, we nevertheless conclude, as a matter of law based on the undisputed evidence in this case, neither Lubanko nor Cooley performed any labor or furnished any material "used or consumed" in the mine on the Property. (Civ. Code, § 3060, subd. (b).) As discussed above, crushing of rock for the sale of rock aggregate to third parties presumably is an activity that could be performed either on-site or off-site. In this case, the blasted rock was loaded onto large trucks and hauled to the on-site rock-crushing facility. However, trucks presumably could have, instead, hauled the blasted rock off-site for crushing. Accordingly, the rock-crushing operation performed by Lubanko with Cooley's leased equipment was not labor performed or materials used or consumed in the mining operations of the Quarry (i.e., the drilling of holes, blasting of rock with explosives, and hauling blasted rock away). Therefore, Cooley could not have any mining lien on the Property for its leased rock-crushing equipment.
DISPOSITION
The judgments are affirmed. Respondents are entitled to costs on appeal.
McDONALD, J. WE CONCUR: McCONNELL, P. J. HALLER, J.