*1 No. 17824. Third Dist. Oct. [Civ. 1979.] WALKER,
A. Plaintiff and Respondent, THORNSBERRY,
DOYAL Defendant and Appellant.
Counsel
Hirаm S. Dillin and David A. Short for Defendant and Appellant. L. Sweet and L. Richard Enkelis for Plaintiff
Gary Respondent. Opinion
EVANS, J. $9,447.96 from an adverse Thornsberry appeals We affirm. judgment.
Plaintiff is the for collection of an account receivable of assignee Secur Comfort Stations division of Aluminum Secur), Plumbing (Super a manufacturer of mеtal Fixture prefabricat- Corporation. Super restrooms, defendant, ed one of which sold to contractor, a general for installation at the Berenda Reservoir Facilities. Launching Secur, furnish, assemble, agreed install the a concrete foundation defendant or his рrepared by *3 subcontractors. The restroom came on the in jobsite prefabricated pieces columns, of steel beams, connections, steel metal consisting girders, roof, and all to size. siding assembled the' precut employees and attached the component parts concrete completed foundation means of bolts a metal channel by the base of through along the wall. failed to Secur the pay Super purchase price product. issue is whether only (hereafter presented plaintiff’s assignor is barred from under Business and Professions
plaintiff) Code section 70311 because a he did not license. contractor’s The trial possess court concluded that Secur was to have contractor’s required license to the on structure the site the place prepared by defendant and therefоre was not from precluded recoveiy.
“The of and Business Professions Code section licensing requirement 7031 was enacted to the from risks to attendant protect public contracting with or contractors. Co. v. (Davis incompetent untrustworthy Superior Court, 156, Powell, 453]; Cal.App.3d Rushing Cal.Rptr. [81 597, 604-605 It 110].) reflects Cal.Rptr. significance [130 on has the deterrence of unlicensed from Legislature placed persons noted, 1 Unlessotherwise all references are to Business and Professions Code. Section 7031 “No in in provides: the business or of person engaged acting capacity a of or maintain in court of for the may bring action this state collection any any for the license act or contract which a is compensation performance any this without that he was a contractor at all by proving chapter alleging duly contract, times not suсh act or shall during performance such except prohibition to contractors who are each licensed under but this who chapter individually fail to with Section 7029.” Section 7026 term “The contractor this provides: purposes chapter and, with the term synonymous ‘builder’ of this contractor meaning chapter, who or offers any person, undertakes to to undertake to or have the to purports or capacity to, others, construct, to or undertake submits a or does or bid himself by through alter, to, from, move, add subtract wreck or repair, demolish improve, аny building, road, structure, railroad, excavation or other highway, parking facility, project, develop- thereof, ment or or to do any erection or improvement, including scaffolding therewith, other or structures works connection or the or structures cleaning grounds therewith, whether connection or not the of work herein described performance structure, involves the addition to or fabrication into or any project, development herein described material or article of improvement any merchandise. The term contractor includes subcontractor and contractor.” specialty business. The served be contracting engaging policy outweighs be (Lewis Queen harshness which sustained & may party. Sons, N.M. Ball 48 Cal.2d P.2d 713].)” (Scientific Cages, [308 Inc. v. Banks 887-888 780].) Cal.Rptr. However, it also has been that “. . . the are harsh recognized penalties has thеre been no the courts to liberalize the tendency overly statute’s v. Pancake (Jackson application.” [§ 7031] 307, 310 The contractors law 111].) Cal.Rptr. certain activities from its section 7045 exempt provisions; provides: as “(a) subdivision this does not (b) Except provided sale installatiоn of materials or articles of merchandise, which do structure, not become a fixed shall it *4 ato materialman or manufacturer finished apply furnishing materials, or articles of merchandise who does not or install contract for the installation of such items. The term ‘finished shall not products’ include installed This (b) shall to: The carpets. (1) [If] chapter apply [If] construction, installation, alteration, or for of repair, preparation moving a mobilehome when such work is a site for the performed upon purpose of installation, erection, constructiоn, The (2) occupancy dwelling. [If] or for of mobilehome or repair, preparation moving accessory buildings structures when such work is for a site of performed upon purpose aas occupancy dwelling.”
Section 7046 as “(a) (b) subdivision this provides: Except provided alterаtion, construction, does not or chapter apply improvement repair of personal property. [1] (b) This shall apply to: [If] (1) The construction, alteration, installation, or for of repair, preparation moving a mobilehome when such work a site for upon pеrformed purpose installation, construction, erection, of as occupancy dwelling. [If] or for of mobilehome repair, preparation moving accessory buildings structures when such work is site performed upon purpose human habitation or occupancy.” section 7045 is not argues exemption applicable,
that the evolution of the sections the contractors exemption law installation and on-site (§ construction for 7058) regarding carpet or mobilehome placement mobilehomes. accessory buildings (§§ manifests a intent 7027) includе the license law installation of finished when there is a substantial on-site products contribution of work be considered to within the specialized trade.
We with the but arrive at agree reasoning posed contrary conclusion that the afforded section 7045 does exemption an Secur. An examination of affords judicial previous their discussion of the sections and discloses judicial exempt predecessors for our support interpretation.
In Los Scenic Studios v. Television Angeles sued a contract to construct an exhibit 1192], plaintiff alone, Since was on the roll the nature of exposition. appeal judgment However, the exhibit was unclear. defendants contended barred failure to it was by plaintiff’s allege prove contractor. The License Law at Contractors that time did not to: work or connected with the sale or installation “(g) Any operation material, merchandise, or article of which is not product, fabricated into and become a fixed permanent structure; construction, alteration, (h) Any [If] improvement repair as limited subdivision of this section.” personal property except (g) 573, 2, сh. (Stats. §
The court observed that would from the act in that appear “[i]t it was intended to to contractors who in work engage upon structures or which are or are to become a of the real projects part or in connection with which the work is done. The property upon of section 2 above from the portions quoted specifically exempt provi- sions the act work construction repair personal property which is not fabricated into and not become a fixed does permanent part of the structure.
“. .. Whether this a еxhibit took the form of or was an exhibit building nature, of another we are not to assume that it was fabricated into and became a fixed of the Electric Products permanent part in which it was located. It is common that Building, knowledge many in exhibits such are not affixed to the in exposition buildings рremises such a as to become a of the real Such an exhibit could way part property. well take the form of a small movable and the fact that it is building, called a would not be in conclusive whether or not ‘building’ determining it was fabricated into and had become a of the structurе permanent part within which it was located. ... If the exhibit in was not of such question a nature that it became a fixed of the structure in which it was part located the stated a cause of action . . . .” at (Id., 358-359.) complaint pp.
847 Prior 1961, to amendment section 7045 read “This sale installation of finishеd materials or merchandise, articles of are not which fabricated into do not and actually become a 37, fixed ch. (Stats. structure.” permanent In Costello v. 452 P.2d (1947) 315], Campbell Cal.App.2d [184 the court determined that installation of cold used storage plants aof and ranch was within the оperation hatchery poultry exemption where the and installed did not become a equipment In fixture. E.A. Davis & Co. v. (1953) Richards permanent 805], installation kitchen patented prefabricated [260 cabinets, cabinets, dishwasher, seven wall six base and consisting a sink attached the floor аnd walls was held to come the manufacturer be a licensed requirement electrical, for minor and despite necessity plumbing, linoleum work incidental to the installation unit. Homes, Co. Shore Inc.
Finley-Gordon Carpet Bay 378], construed the relevant Cal.Rptr. parts section 7045 as it reads. In thаt case was installed presently carpet “tackless method” under which could be removed strip carpets easily without to the floor. court trial court’s damage upheld finding did not become a “fixed of the structure.” carpet In Johnson Mattox Cal.Rptr. 185], licenses, who lacked сontractor’s for labor plaintiffs, sought recovery and materials a “baseball school” which the work constructing included of a installation various performed system, sprinkler concrete, them in signs setting excavating constructing *6 The court held sections 7045 and were not dugouts. applicable. “Sections 7045 and 7046 were intended to to installations in which incidental, construction kitchen is such as the installation of activity merely appliances (E. A. Davis & Co. v. Richards [1953] P.2d and not to the installation of a which is 805]), system, sprinkler constructed out of the it buried in where lengths ground pipe ours; intended to be used.” (Italics ibid.)
The trial court concluded that Secur was to have a Super contractor’s license. decision is a determination that the Implicit unit did not a fixed the become structure. Whether prefabricated installed become a fixed of the structure is a goods question fact. 453; at (Costello Campbell, supra, p. Finley-Gordon Inc., Homes, Co. v. Shore at Bay 132.) Carpet supra, p. The contract between Secur and defendant did not Super require foundation, Secur to undertake the installation of concrete rough fixtures, stalls, or installation of wood plumbing, рlumbing roofing, which to restroom. painting place assembled the and bolted the structure to the employees merely pieces foundation. Their contribution of labor to the finished restroom was at most minor and incidental.
That was within the activity purview exemption provided by section 7045.
Our of section 7045 obviates disposition predicated upon provisions whether the restroom is necessity determining personal property within the of section also meaning providing statute. The is affirmed. judgment J.,
Paras. P. concurred. Acting REYNOSO, J.I However, concur in the I results. raise a concern to the status of decisional law. Neither the nor the pertaining parties have addressed issue of meruit as a more majority quantum vehicle for a Such a appropriate theory recovery. theory respects intent of the and does The omission is Legislature equity. quite proper in 1957 the California Court ruled that theories Supreme equitable cannot be in the face of Business and Professions Code urged section 7031. & (Lewis Queen N. M. Ball Sons 48 Cal.2d to section 7031 is on 713].) based all-or-nothing approach that the statute determination that the premise reprеsents legislative from importance protecting public untrustworthy incompetent unlicensed contractors harshness to a at (Id., outweighs any party. Even if we that the intent was one based on concern for accept consumer it is whether such protection,1 questionable рurpose advanced in the case at hand. Defendant Thornsberry, is not of a member of the who position general public because of the is unable to protect disparity knowledge experience *7 Rather, himself. he in a to that position equal Thus, of the and labor. he is able to evaluate party supplying the nature and of the To himself. quality performance thereby permit 1 The scheme also be to may effort added give competitive advantage the more organized licensed politically contractors. to avoid for the would rеsult work Thornsberry payment completed only “ in the statute used as an ‘unwarranted shield for the avoidance being ” Carter, (Lewis & just Queen, J.], a obligation.’ supra [dissent t 158.) This was never intent is therefore statute. It understandable to fit the labored set facts into why majority present the statutory exemption. of a meruit availability quantum theory recovery provides
more reasonable In cases court approach problem. appropriate could take into account the enrichment bestowed the unlicensed contractor without statute. The unlicensed сontrac- riddling tor would continue be unable to which undoubt- enforce contract offered him than a meruit edly greater compensation quantum offers. sum,
In to lead will continue present all-or-nothing approach efforts to avoid the statute in order to reach This can results. just оnly result nonuniform of the law and little application judicial provide theories, Another look at meruit, guidance. equitable including quantum is due. 14, 1979,
A was denied November petition rehearing for a Court was denied appellant’s petition hearing by Supreme J„ Manuel, December 1979. opinion petition should be granted.