Plаintiff 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 Comрany 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 Comрany 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
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 thе 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 requirе 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)
Article XX, section 15, of the California Constitution is not self-executing but must be implemented by legislation to рrovide enforcement procedures.
In Ferger v. Gearhart (1919)
“ ‘This declaration of a right, like many others in our constitution, is inoperative except as supplemented by legislative action.
“ ‘So far as substantial benefits are concerned, the naked right without the interposition of the legislature is like the earth before the creation, “without form and void,” or to put it in the usual form, the constitution in this respect is not self-executing. ’ ”
In Barr Lumber Co. v. Shaffer (1951)
In view of the foregoing holdings, it is evident that there is no constitutional compulsion for uniform treatment, and that the Legislature could, if it chose, adopt one method for the enforcement of materialmen’s rights and a second, entirely different procedure for the enforcement of laborers’ rights.
The problem is therefore presented whether the Legislature’s prоcedural distinction in section 1193 of the Code of Civil Procedure, requiring notice by a materialman but not by a laborer, is so arbitrary and unreasonable that there is no substantial relation to a legitimate legislative objective.
The constitutional mandate of article XX, section 15, is a two-way street, requiring a balancing of the interests of both lien claimants and property owners. First, this
From the point of view of lien claimants, the words “speedy and efficient” must obviously be interpreted to mean that the Legislature should arrange fоr them to receive their money as soon as possible after supplying the labor or materials.
On the other hand, the property owner also has an interest which must be protected. Frоm his standpoint, the words “speedy and efficient” should be interpreted to mean that his title should be cleared as soon as possible, so that it will have some marketability.
The Legislature has the tаsk of balancing these two adverse interests in carrying out its duty under article XX, section 15, of the Constitution. In Alta Building Material Co. v. Cameron,
“The section does not require а pre-lien notice by those under direct contract with the owner or those who perform actual labor for wages on the property. The logical reason for this distinction is that the оwner would in the usual situation be apprised of potential claims by way of lien in connection with those with whom he contracts directly, as well as those who perform actual labor for wаges upon the property.
“However, as to materials furnished or labor supplied [i.e., labor performed elsewhere than on the property] by persons not under direct contract with the owner, it may be difficult, if not impossible, for the owner to be so apprised and the clear purpose of section 1193 is to give the owner 15 days’ notice in such a situation that his property is to be ‘embarrassed with a charge which will operаte as a cloud upon the title thereof so long as the lien remains undischarged and that the property may be sold under foreclosure proceedings unless the debt to secure which the lien was filed is otherwise sooner satisfied.’ [Citation.]”
Furthermore, the average uninformed laborer would not, as a practical matter, have the same opportunity to comply with a notice requirement as material suppliers would.
It thus appears that the legislative classification in the present case was neither arbitrary nor unreasonable and that the noticе requirement of section 1193 of the Code of Civil Procedure is constitutional.
Any statements or inferences to the contrary in Reliable Steel Supply Co. v. Croom,
The order dismissing plaintiff’s complaint is affirmed.
Gibson, C. J., Traynor, J., Schauer, J., Peters, J., Tobriner, J., and Peek, J., concurred.
Notes
Article XX, section 15, of the California Constitution reads: '
Almost any property owner could argue that the prоcedure for foreclosing a mechanic’s lien is neither speedy nor efficient, since it clogs his title sometimes for a matter of years before the foreclosure action proceeds to trial and judgment. This argument likewise can appropriately be presented to the Legislature.