Filed 8/29/19
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
PRECISION FRAMING SYSTEMS INC., E069158 Plaintiff and Appellant, (Super.Ct.No. MCC1400466) v. OPINION HENRY LUZURIAGA et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Gloria Trask and Angel
M. Bermudez, Judges.⸸ Affirmed.
Tyler & Bursch, Jennifer L. Bursch, James A. Long, and Nada N. Higuera for
Plaintiff and Appellant.
Pursuant to California Rules of court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III, V, VI, and VII.
⸸ Judge Trask denied the motion to compel production of documents and summarily adjudicated one of the affirmative defenses. Judge Bermudez granted the motion for summary judgment, entered judgment, and awarded costs. Law Offices of Jonathan C. Stevens and Jonathan C. Stevens for Defendants and
Appellants.
Henry and Deborah Luzuriaga contracted with a general contractor for the
construction of a commercial building. The general contractor, in turn, contracted with
Precision Framing Systems, Inc. (Precision) for the framing, including the necessary
trusses. And Precision contracted with Inland Empire Truss, Inc. (Inland) for the
fabrication of the trusses. Precision never received full payment. Accordingly, it
recorded a mechanic’s lien claim.
Meanwhile, there was a problem with some of the trusses. There was much
finger-pointing as to who was to blame. After Precision had already recorded its
mechanic’s lien claim, Precision and/or Inland came back to the site and repaired the
trusses.
Precision filed this action to foreclose its mechanic’s lien. Ms. Luzuriaga filed a
cross-complaint. The trial court granted summary judgment against Precision on its
complaint. It ruled that the mechanic’s lien claim was filed prematurely — i.e., before
Precision had “cease[d] to provide work.” (Civ. Code, § 8414, subd. (a).)
Precision appeals. Its primary contention is that there was a triable issue of fact as
to whether it had ceased to provide work, because (1) “ceas[ing],” within the meaning of
the statute, can be a gradual process, (2) the repair of the trusses was not part of
Precision’s “work,” (3) there was evidence that Precision completed all of its work before
2 it recorded its mechanic’s lien claim, and (4) there was evidence that the repairs were
done by Inland. Henry Luzuriaga and the Luzuriagas’ bonding company cross-appeal.1
We will affirm. We agree with the trial court: The evidence showed, beyond a
triable issue of fact, that Precision had not yet “cease[d] . . . work” when it recorded its
mechanic’s lien claim. This moots the cross-appeal.
I
FACTUAL BACKGROUND
The following facts are taken from the evidence introduced in connection with the
motion for summary judgment.
The Luzuriagas undertook the construction of a veterinary hospital on a piece of
property that they owned in Wildomar. They hired an architect and a general contractor.
The general contractor, in turn, hired Precision as the framing subcontractor. Precision’s
contract stated that that the contact price was “for labor, lumber, trusses, and hardware
necessary to complete the . . . project.” (Capitalization altered.)
George Mears is the president of Precision. He testified that Precision was
supposed to “supply and install[]” the trusses. In its interrogatory responses, Precision
stated that its scope of work consisted of framing, including “procurement of materials
(lumber[,] hardware and trusses).”
1 Ms. Luzuriaga also cross-appealed, but we dismissed her because her cross- complaint is still being litigated.
3 Precision selected Inland to design and manufacture the trusses. As Mears put it,
“Precision used Inland” for the trusses. Inland contracted solely with Precision and
invoiced Precision, although Inland was paid directly by the construction lender.
Inland designed the trusses, based on the plans and specifications, and built them.
However, the architect had to approve the truss design, incorporate it into his plans, and
make sure they matched (redesigning his own plans if necessary). Thus, as the general
contractor testified, the “truss details” were “ultimately[] the architect’s responsibility.”2
On July 24, 2013, Precision started work on the framing. On July 29, 2013, Inland
delivered the trusses to the site. On August 2, 2013, Precision began installing the
On August 7, 2013, the city issued a correction notice relating to the trusses. It
stated: “Truss bearing points are not as per plan . . . .” In the architect’s opinion, this
was because the trusses were not fabricated in accordance with the plan. On August 14,
2013, Precision notified Inland that the trusses were defective. Later in August 2013,
Inland carried out some repairs to the trusses.
On December 9, 2013, the city issued a second correction notice relating to the
2 Precision claims there was evidence that the architect designed the trusses. The cited portions of the record do not support this. The architect himself testified that he designed the floor plan, which specified the bearing points for the trusses — i.e., the points at which the rest of the building was supposed to support them — but he did not design the trusses themselves. We have found no other evidence contradicting this. The designs themselves are in the record and have Inland’s logo on them.
4 On December 23, 2013, the general contractor and Precision’s superintendent
“walked the [p]roject” together. The general contractor found that Precision’s work was
complete and fully in compliance with the plans and specifications. At that point,
according to both Mears and the general contractor, Precision had completed its scope of
work. The city approved Precision’s framing work.
Precision, however, never received full payment. Ms. Luzuriaga told Mears “she
was not interested in paying Precision and told [him] to sue her.” Accordingly, on
January 2, 2014, Precision recorded its mechanic’s lien claim for $53,268.16.
Sometime between January 2 and 29, 2014, the Luzuriagas changed the locks of
the building, locking out all contractors.
Sometime between January 20 and 29, 2014, Mears met with the architect and the
building inspector. At this meeting, he later testified, he first became aware of the
correction notices.3
On January 29, 2014, Ms. Luzuriaga took the position that Precision’s mechanic’s
lien claim was “premature” because it had not yet completed its scope of work, and in
particular because the correction notices were still outstanding. She asked, “Does
Precision . . . intend to return to the job and correct the issues that are pending?” Mears
3 By August 14, 2013, Precision knew there was a problem with the bearing points of some of the trusses. Moreover, by December 31, 2013, it knew the building inspector had raised “a question” about the trusses. On January 9, 2014, it received Inland’s engineering drawing of the proposed repair. On January 11, 2014, it asked Inland when it was going to do this repair. However, there is no evidence that it was aware specifically of the outstanding correction notices before the January meeting.
5 responded, “We intend on completing any work pursuant to our contract . . . [W]e are
willing to meet and discuss any remaining scope . . . .”
On February 4, 2014, Precision told Ms. Luzuriaga that it could not determine
whether the issues in the correction notice were within its scope of work because it was
locked out.
On February 12, 2014, Ms. Luzuriaga told Mears that she would be at the site the
following day. She continued, “If you would like to visit the project with respect to the
City’s correction notice . . . , you can come by then.” Mears responded that he would and
added, “The truss company will also be in attendance to make sure that the repairs were
made. If they are not they will complete them then.”
Meanwhile, Inland had prepared repair designs and had done the related structural
calculations. On February 12 or 13, 2014, Inland carried out the repairs. Mears was
present to “accompany” Inland, and he “helped coordinate the repairs.”4 The repairs
themselves took two or three hours
4 In interrogatory responses, however, Precision stated: “[O]n February 12, 2014, [Precision] conducted a repair per a correction notice issued by the City . . . .” Moreover, in a declaration, Mears testified: “On February 12, 2014, . . . Precision repaired some of the floor trusses . . . . [R]epresentatives of Inland . . . were on the site to witness/perform the truss repairs.”
Ms. Luzuriaga testified that Inland “and/or” Precision carried out the repairs.
6 II
PROCEDURAL BACKGROUND
In 2014, Old Republic Surety Company (Old Republic) filed a complaint (Case
No. SWC1400869) against Ms. Luzuriaga, Precision, and others.
Ms. Luzuriaga filed a cross-complaint against Precision and a host of other
defendants. Her operative (first amended) cross-complaint alleged that, at all relevant
times, Precision lacked a contractor’s license. It also alleged that Precision’s mechanic’s
lien claim had been filed prematurely.
Meanwhile, also in 2014, Precision filed a separate complaint (Case
No. fMCC1400466) against the Luzuriagas, American Contractors Indemnity Company
(American), and others.5 The operative (second amended) complaint asserted a single
cause of action for foreclosure of mechanic’s lien. The Luzuriagas asserted various
affirmative defenses, including that Precision “was an unlicensed contractor . . . .”
The trial court consolidated the two cases.
In 2015, Precision filed a motion for summary adjudication of the Luzuriagas’
defenses. The trial court granted summary adjudication in favor of Precision on the
unlicensed contractor defense.
5 American was named as a defendant based on allegations that it had issued a bond enabling the Luzuriagas to obtain a release of Precision’s mechanic’s lien.
Because American’s liability is derivative of the Luzuriagas’, we will disregard its separate status. Further references to “Luzuriaga” and “the Luzuriagas” will include American, unless the context otherwise requires.
7 In 2017, the Luzuriagas moved for summary judgment on Precision’s complaint,
on the ground that Precision had filed its mechanic’s lien prematurely. The trial court
granted the motion and entered judgment accordingly.
Precision filed a timely notice of appeal. The Luzuriagas filed a timely notice of
cross-appeal. However, we dismissed Ms. Luzuriaga as both an appellant and a
respondent, because her cross-complaint against Precision (and others) was still pending.
III
CONSIDERATION OF THE MEARS DECLARATION
Precision contends that the trial court erred by taking judicial notice of Mears’
declaration.6 Because this goes to whether we can consider evidence from the
declaration, we resolve it as a preliminary matter.
A. Additional Factual and Procedural Background.
In support of their motion for summary judgment, the Luzuriagas asked the trial
court to take judicial notice of declarations by Mears and by Roy Ryan, the general
contractor, that had been filed in the case in 2015.
Precision did not object to this request. To the contrary, in its opposition, it cited
and relied on the declarations.
At the hearing on the motion, the trial court noted that both sides had relied on the
declarations but stated, “I can’t take judicial notice of the declarations.” Counsel for the
6 Despite making this argument, Precision repeatedly cites the Mears declaration.
8 Luzuriagas argued that the declarations were “central.” The court responded, “So instead
of taking judicial notice, you want me to consider the declarations with the evidence at
the end?” Counsel for both sides agreed to this.
In its order granting the motion, the trial court stated: “The request for judicial
notice . . . as to declarations of Mears and Ryan . . . is DENIED. The court may only take
judicial notice of the existence of the declaration — not its contents.” However, the order
went on to cite and quote Mears’ declaration.
B. Discussion.
Precision forfeited this contention, first, by failing to object to the request for
judicial notice, and second, by agreeing that the trial court could use the declarations as
evidence. (Evid. Code, § 353, subd. (a).)
Precision argues that this contention was preserved because the Luzuriagas relied
exclusively on judicial notice, and the trial court ruled that it could not take judicial
notice. The fact remains that Precision agreed that the trial court could consider the
declarations, regardless of the theory under which it did so. Indeed, Precision’s
agreement rose to the level of inviting the asserted error. (See generally Transport Ins.
Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000.)
Separately and alternatively, the trial court properly considered the declarations.
“‘[W]hile courts are free to take judicial notice of the existence of each document
in a court file, . . . they may not take judicial notice of the truth of hearsay statements in
9 decisions and court files. [Citation.]’ [Citation.]” (Barri v. Workers’ Comp. Appeals Bd.
(2018) 28 Cal.App.5th 428, 437.)
This is true, however, only if the hearsay is inadmissible. “‘The hearsay rule
applies to statements contained in judicially noticed documents, and precludes
consideration of those statements for their truth unless an independent hearsay exception
exists. [Citation.]’ [Citation.]” (Barri v. Workers’ Comp. Appeals Bd., supra, 28
Cal.App.5th at p. 437, italics added.) To put it another way, once the trial court takes
judicial notice of the existence of a declaration, it can consider statements in the
declaration for their truth if they are admissible under a hearsay exception.
Sosinsky v. Grant (1992) 6 Cal.App.4th 1548 — which the trial court cited below
and Precision cites on appeal — is not to the contrary. It merely held that a court cannot
take judicial notice of the truth of another court’s factual findings in a previous case. (Id.
at pp. 1560-1570.) Such findings are inadmissible hearsay. Sosinsky simply does not
speak to admissible hearsay in court records.
Here, while the declarations were hearsay, they were admissible hearsay. Under
Code of Civil Procedure section 437c, subdivision (b), a declaration is admissible in
support of or in opposition to a motion for summary judgment. This constitutes an
exception to the hearsay rule. (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736,
756.)
If we were to accept Precision’s contrary position, it would mean that, in
connection with a motion for summary judgment, a party could not request judicial notice
10 of declarations previously filed in the case; however, it could use them as evidence by
attaching them to an attorney’s declaration authenticating them. We see no point to this
hypertechnical approach.
Thus, the trial court’s ruling refusing to take judicial notice of the declarations
was, technically, erroneous. It appears, however, that it nevertheless proceeded to do the
right thing — it considered the declarations for their truth.
IV
TIMELINESS OF THE MECHANIC’S LIEN CLAIM
As mentioned, Precision contends that there was evidence that its mechanic’s lien
claim was not premature.
“A trial court may only grant a motion for summary judgment if no triable issues
of material fact appear and the moving party is entitled to judgment as a matter of law.
[Citations.]” (Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) “In ruling on the
motion, the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’
reasonably drawn therefrom [citation], and must view such evidence [citations] and such
inferences [citations], in the light most favorable to the opposing party.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Whether the trial court erred by
granting [the] motion for summary judgment is a question of law we review de novo.
[Citation.]” (Samara v. Matar (2018) 5 Cal.5th 322, 338.)
“A mechanic’s lien is a claim against real property, which may be filed if a
claimant has provided labor or furnished materials for the property and has not been paid.
11 [Citation.]” (Brewer Corp. v. Point Center Financial, Inc. (2014) 223 Cal.App.4th 831,
839.) Thus, “‘[it] is a procedural device for obtaining payment of a debt [owed] by a
property owner for the performance of labor or the furnishing of materials used in
construction.’ [Citation.]” (North Bay Construction, Inc. v. City of Petaluma (2006) 143
Cal.App.4th 552, 555.)
“Mechanics’ lien law derives from our state Constitution . . . . The mechanics’
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.]” (Hutnick v. U.S.
Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 462.)
“However, ‘“[a]lthough mechanic’s lien laws should be liberally construed to
protect those who have contributed skills, services or materials, towards the improvement
of property, it has been recognized that lien laws are for the protection of owners as well
as mechanic’s lien claimants.”’ [Citation.]” (Moorefield Construction, Inc. v. Intervest-
Mortgage Investment Co. (2014) 230 Cal.App.4th 146, 155.)
“The section of the Constitution referred to is not self-executing, and is
inoperative except as supplemented by legislation. [Citations.]” (Ferger v. Gearhart
(1919) 44 Cal.App. 245, 247, disapproved on other grounds in Theisen v. County of Los
Angeles (1960) 54 Cal.2d 170, 182.) “‘“Mechanics’ liens are entirely of statutory
creation, and the statute must be looked to both for the right to the lien and the mode by
which it can be enforced. The right to a mechanic’s lien depends upon a compliance with
12 the statute, and in order that a valid lien may arise and be enforced, the claimant must
strictly, or at least substantially, observe and comply with the provisions of the statute,
none of which may be regarded as unessential.”’ [Citation.]” (Sukut Construction, Inc.
v. Rimrock CA LLC (2011) 199 Cal.App.4th 817, 824.)
The crucial statute here is Civil Code section 8414, which provides:
“A [mechanic’s lien] claimant other than a direct contractor may not enforce a lien
unless the claimant records a claim of lien within the following times:
“(a) After the claimant ceases to provide work.
“(b) Before the earlier of the following times:
“(1) Ninety days after completion of the work of improvement.
“(2) Thirty days after the owner records a notice of completion or
cessation.”
Civil Code section 8414 is just the most recent in a series of statutes setting the
earliest and/or latest time for recording a mechanic’s lien claim. (Civ. Code, former
§ 3116, Stats. 1969, ch. 1362, § 2, p. 2762; Code Civ. Proc., former § 1193.1, subd. (c),
Stats. 1951, ch. 1376, § 2, p. 3290; Civ. Code, former § 1187, 1 Ann. Code Civ. Proc.,
§ 45 (1st ed. 1872, Haymond & Burch, commrs.-annotators) p. 49.) Like the present
version, most of them set the earliest time based on either the subcontractor’s cessation of
its own work or the completion (or cessation) of the overall work of improvement. 7
7 In 1887, the statute was amended to provide, “[A]ny trivial imperfection . . . shall not be deemed such a lack of completion as to prevent the filing of any lien . . . .” (Code Civ. Proc., former § 1187, Stats.1887, ch. 137, § 3, pp. 154-155.) In 1929,
13 While the triggers that were based on the completion of the overall work of improvement
have varied, the triggers that were based on the subcontractor’s cessation of its own work
were all similar.
For example, the version enacted in 1919 required a subcontractor to file any
mechanic’s lien claim “after he has ceased to perform labor or furnish material, or
both . . . .” (Former Civ. Code, § 1187, Stats. 1919, ch. 146, § 1, p. 190.)
The version enacted in 1969 required a subcontractor to file any mechanic’s lien
claim “after he has ceased furnishing labor, services, equipment, or materials . . . .”
(Former Civ. Code, § 3116, Stats. 1969, ch. 1362, § 2, p. 2762.)
We perceive no relevant substantive difference between these various
formulations. Indeed, Civil Code section 8414 was intended to reenact the 1969 version
“without substantive change.” (Cal. Law Revision Com. com., 12C West’s Ann. Civ.
Code (2012 ed.) foll. § 8414, p. 199.) Accordingly, older cases construing and applying
“ceas[ing]” remain good law. (See Century Superior Gunite, Inc. v. Rodriguez (1981)
118 Cal.App.3d Supp. 12, 15 [case construing Civ. Code, former § 1187 is helpful in
construing Civ. Code, former § 3116].)
Under every version of the statute, a mechanic’s lien claim that is filed
prematurely is void and cannot be enforced. (Marchant v. Hayes (1898) 120 Cal. 137,
138-139; McCreary v. Toronto Midway Oil Co. (1918) 38 Cal.App. 17, 20.)
however, the “trivial imperfection” exception was deleted. (Code Civ. Proc., former § 1187, Stats. 1929, ch. 870, § 1, p. 1928.)
14 Precision notes that the Merriam-Webster Dictionary defines “cease” as “to cause
to come to an end especially gradually: no longer continue.” (Merriam-Webster OnLine
Dict. [as of Aug. 27, 2019], italics
added.) It therefore argues that “the phrase ‘ceases to provide work’ does not require that
all work be completely stopped prior to recording a lien. Instead, all that it required is,
prior to recording, a contractor gradually cause to come to an end, the supply or
availability of labor to a work of improvement.”
We disagree. “Cease” means to end. Ending is required; ending gradually is
optional.8 If something is in the process of coming to an end, it may be ceasing, but it
has not ceased. According to the Merriam-Webster use note, “cease” — as compared to
such synonyms as “stop,” “quit,” “discontinue,” and “desist” — “may add a suggestion of
gradualness and a degree of finality.” (Merriam-Webster Online Dict., supra, italics
added.) As Luzuriaga argues, interpreting “cease” as meaning gradually coming to an
end would make the moment when “ceasing” occurs unduly subjective and difficult to
determine.
Precision also relies on the statutory definition of “work.” “‘Work’ means labor,
service, equipment, or material provided to a work of improvement.” (Civ. Code,
§ 8048.) And “‘work of improvement’ means the entire structure or scheme of
8 The relevant definition of “cease” in the Oxford English Dictionary is “To leave off, discontinue . . . .” Oxford English Dictionary Online (3d ed. 2001) (as of Aug. 27, 2019). It contains no similar connotation of gradualness.
15 improvement as a whole . . . .” (Civ. Code, § 8050, subd. (b).) Precision therefore argues
that here, “the ‘work of improvement’ was the construction of a veterinary hospital, as
opposed to discrete repairs or alterations made to the veterinary hospital.”
This argument assumes what it seeks to prove — that the repairs were “discrete”
from the construction. However, the statutory definition of “work of improvement”
includes the “[c]onstruction, alteration, [or] repair, . . . in whole or in part, of . . . a
building . . . .” (Civ. Code, § 8050, subd. (a)(1), italics added.) Thus, a work of
improvement, as a whole, can include both construction and repairs.
On the other hand, Luzuriaga argues that the definitions of “work” and “work of
improvement” are irrelevant; the only question is whether Precision “had ceased its work
on the Project.” But this argument, too, assumes what it seeks to prove — that the repairs
were part of “the Project.”
Because the issue is whether Precision had ceased to provide “work,” and because
“work” is defined in terms of the overall “work of improvement,” we conclude that this
issue must be analyzed in terms of whether the repairs were part of the “scheme of
improvement as a whole.”
As Precision notes, case law supports this view.
For example, in Nevada County Lumber Co. v. Janiss (1938) 25 Cal.App.2d 579,
the trial court found that the construction of two cabins was complete on December 20,
16 1935, and therefore a subcontractor’s lien claim filed on March 16, 1936 was timely.9
(Id. at p. 582.) The evidence showed that a tenant had moved into one of the cabins on
December 2, 1935. (Ibid.) Before then, however, the sewer pipes had been accidentally
blocked with cement. (Id. at p. 583.) Accordingly, between December 16 and 20, 1935,
the general contractor removed and replaced the sewer pipes. (Ibid.)
The appellate court upheld the finding that the work was not complete until the
sewer pipes were replaced. (Nevada County Lumber Co. v. Janiss, supra, 25 Cal.App.2d
at pp. 582-584.) It noted that “[t]he fulfillment of the contract in question required the
construction of a suitable sewer system to connect the building with a septic tank.” (Id. at
p. 583.) Thus, it described the replacement as “substantial work necessary to the
completion of the contract . . . .” (Id. at p. 582.)
Similarly, in Hundley v. Marinkovich (1942) 53 Cal.App.2d 288, the trial court
found that the construction of a building was complete on November 9, 1939, so that a
subcontractor’s mechanic’s lien claim filed on December 21, 1939 was untimely. 10 (Id.
at pp. 289-290.) The subcontractor had finished all other work on the building on
November 8, 1939, but on November 29, 1939, it had replaced a defective lock part with
a new part worth $4.12. (Id. at p. 290.)
9 At the time, the applicable statutory deadline was 90 days after completion. (Nevada County Lumber Co. v. Janiss, supra, 25 Cal.App.2d at p. 581.) 10 At the time, the applicable statutory deadline was 30 days after completion. (Hundley v. Marinkovich, supra, 53 Cal.App.2d at pp. 291.)
17 The appellate court upheld the trial court’s finding. (Hundley v. Marinkovich,
supra, 53 Cal.App.2d at pp. 292-293.) It rejected the subcontractor’s argument “that a
substitution or replacement of material, at the demand of the owner or the original
contractor” extended the time to record a mechanic’s lien claim. (Id. at p. 292.) It relied
on the trial court’s additional finding that the lock part “constituted no part of the
construction of said building,” as well as on the fact that labor had ceased and the owners
had taken possession and had recorded a notice of completion. (Id. at pp. 290, 293.)
In summary, then, while the outcomes in Nevada County and Hundley were
opposite, their underlying analytic approach was the same: They looked to whether the
repairs were part of the overall scheme that constituted the work of improvement.11
Luzuriaga argues that Nevada County and Hundley are irrelevant because they
involved belated lien claims, rather than premature lien claims. (It could also be argued
that they turned on the completion of an overall work of improvement, rather than the
cessation of an individual subcontractor’s work.) Nevertheless, they speak to the larger
question of whether the time to file a lien claim runs from repairs done after other work is
complete. With respect to an individual subcontractor, they support Precision’s
contention that this turns on the subcontractor’s scope of work.
11 Precision also cites Grettenberg v. Collman (1931) 119 Cal.App. 7. That case held that various repairs performed after a building was otherwise complete did not extend a subcontractor’s time to file a lien claim. (Id. at pp. 9-11.) It relied, however, on the statutory provision that “trivial imperfections” did not prevent completion. (Ibid.) As we have noted (fn. 7, ante), this provision was deleted in 1929. It has been held that the deletion intentionally eliminated the “trivial imperfection” exception. (Picerne Construction Corp. v. Castellino Villas (2016) 244 Cal.App.4th 1201, 1213-1214.)
18 We turn, then, to whether there was a triable issue of fact as to whether the repairs
were part of the “work” that Precision was to provide to the “work of improvement.”
Precision’s contract provided that its price was for, among other things, the
“trusses . . . necessary to complete the . . . project.” (Capitalization altered.) In
Precision’s view, this did not require it to design the trusses; rather, it was up to the
architect to design the trusses, and all Precision had to do was to supply trusses in
conformity with his designs. Accordingly, the repairs were not within its scope of work.
We disagree, for two reasons. First, even assuming the architect did design the
trusses, the contract called for Precision to supply the trusses necessary to complete the
project, not merely trusses in conformity with the plans. As long as the notices of
correction were outstanding, the project could not be completed. If the notices of
correction were traceable to a flaw in the architect’s design, arguably Precision would be
entitled to extra compensation for the repairs; nevertheless, the repairs constituted
“substantial work necessary to the completion of the contract . . . .” (Nevada County
Lumber Co. v. Janiss, supra, 25 Cal.App.2d at p. 582.)
Second, as discussed in footnote 2, ante, uncontradicted evidence showed that
Inland, not the architect, designed the trusses. The architect was “responsib[le]” for the
design, in the sense that he had to approve it and had to make sure it would work with the
rest of the building, but the actual design work was done by Inland. While the written
contract was ambiguous with respect to whether Precision was required to design the
trusses, the other evidence demonstrates that it was. Precision contracted with Inland for
19 the trusses. Inland’s only contract was with Precision. Moreover, Inland invoiced
Precision. In other words, Inland was Precision’s subcontractor. This course of dealing
demonstrates that Precision’s contract required it to provide design services.
In the trial court, Precision purported to dispute the fact that Inland was its
subcontractor. The evidence that it cited, however, failed to raise any triable issue. For
example, it cited Mears’s testimony that the construction lender paid Inland directly. As
he explained, however, this was done “to ensure that the material suppliers were paid” —
i.e., so Inland could not file a mechanic’s lien claim. Presumably, these sums came out
of the amounts due to Precision.
It also cited the evidence that the general contractor inspected Precision’s work
and found no deficiencies; both Mears and the general contractor testified that, at that
point, Precision had completed its scope of work. But because the scope of work was
established by the relevant contracts, this was merely the factually unsupported legal
opinion of two lay witnesses. Thus, even in the absence of an objection, it was not
substantial evidence that the repair of the trusses was not within Precision’s scope of
work. (See Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1110;
Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, 1191-1192.)
If, when Precision recorded its mechanic’s lien claim, it did not know that it had
any work left to do, it may seem unfair to hold that it recorded its claim prematurely.
However, we have not found any case law suggesting that a claimant’s subjective
knowledge or belief as to whether it has ceased to provide work is relevant. In any event,
20 it did know by then that there was some kind of problem with the trusses. (See fn. 3,
ante.) Moreover, nothing in the Mechanic’s Lien Law prohibited it from recording its
claim again after the repairs were performed.
We conclude that the repair of the trusses was part of Precision’s “work.” It does
not matter whether Precision actually carried out the repairs itself or merely “helped
coordinate” them. Hence, the trial court correctly granted summary judgment against
Precision.
V
FAILURE TO REITERATE THE RULING ON
THE MOTION FOR SUMMARY ADJUDICATION IN THE JUDGMENT
Precision contends that the judgment should have expressly included the trial
court’s ruling summarily adjudicating the Luzuriagas’ unlicensed contractor defense.
It cites Code of Civil Procedure section 437c, subdivision (k), which, as relevant
here, provides: “[A] final judgment shall not be entered on a motion for summary
judgment before the termination of the action, but the final judgment shall, in addition to
any matters determined in the action, award judgment as established by the summary
proceeding provided for in this section.” This applies equally to motions for summary
adjudication. (Code Civ. Proc., § 437c, subd. (f)(2).)
On its face, this requires only that the final judgment “award judgment as
established” by the motion for summary adjudication. It does not require the final
judgment to recite every individual legal or factual matter established by the motion.
21 Here, the summary adjudication established that one of the defenses the Luzuriagas were
asserting lacked merit. It did not establish that either side was entitled to any particular
judgment. Thus, there was no need for the judgment to recapitulate the summary
adjudication.
Separately and alternatively, Precision has not shown that it has been prejudiced
by the asserted error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Elsner v. Uveges
(2004) 34 Cal.4th 915, 939.) The record will show what the record will show. If
somehow the fact that the motion for summary adjudication was granted becomes
relevant, Precision can establish that without needing to have it stated in the judgment.
In Luzuriaga’s view, Precision wants the ruling on the unlicensed contractor
defense set forth in the judgment so it can use it against Ms. Luzuriaga in the ongoing
litigation on her cross-complaint. The judgment we are reviewing, however, is not final
as to Ms. Luzuriaga, precisely because the action as between her and Precision is still
rolling forward. For that reason, she is not a party to this appeal. (See Justus v. Atchison
(1977) 19 Cal.3d 564, 568, overruled on unrelated grounds in Ochoa v. Superior Court
(1985) 39 Cal.3d 159, 171.) For the same reason, the judgment cannot operate as
collateral estoppel against her. (See generally Boeken v. Philip Morris USA, Inc. (2010)
48 Cal.4th 788, 797.)
22 VI
APPORTIONMENT OF COSTS
Precision contends that the trial court erred by failing to apportion its award of
costs as between Precision’s complaint and Ms. Luzuriaga’s cross-complaint.
After judgment was entered in their favor, the Luzuriagas filed a verified
memorandum of costs.
Precision filed a motion to tax costs. It argued, among other things, that some of
the claimed costs related, in whole or in part, to Ms. Luzuriaga’s cross-complaint. The
motion was supported by a declaration of one of Precision’s attorneys. He itemized the
depositions taken, and he testified, with some specificity, that they related to the cross-
complaint.
In opposition to the motion, one of the Luzuriagas’ attorneys also submitted a
declaration. He itemized the filing and motion fees incurred and explained how they
related to Precision’s complaint rather than to Ms. Luzuriaga’s cross-complaint. He
testified — like Precision’s attorney, with some specificity — that the depositions related
to the complaint. Finally, he itemized the service of process costs incurred and testified
that they, too, related to the complaint rather than the cross-complaint.
After hearing argument, the trial court taxed the costs of one deposition and of
Ms. Luzuriaga’s travel. Otherwise, it denied the motion.
23 B. Discussion.
“[A] prevailing party is entitled as a matter of right to recover costs in any action
or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) Allowable costs include filing and
motion fees, deposition costs, and service of process fees. (Code Civ. Proc., § 1033.5,
subds. (a)(1), (a)(3), (a)(4).) However, to be allowable, costs must “be reasonably
necessary to the conduct of the litigation rather than merely convenient or beneficial to its
preparation.” (Id., subd. (c)(2).)
On a motion to tax costs, the prevailing party has the burden of proof; however, “if
the items appear to be proper charges, the verified memorandum is prima facie evidence
that the costs, expenses, and services therein listed were necessarily incurred
. . . [citations], and the burden of showing that an item is unreasonable is upon the [losing
party]. [Citations.]” (Decoto School Dist. of Alameda County v. M. & S. Tile Co. (1964)
225 Cal.App.2d 310, 316-317.)
We review a ruling on a motion to tax costs under the abuse of discretion standard.
(LAOSD Asbestos Cases (2018) 25 Cal.App.5th 1116, 1123.) “Under this standard, we
consider the court’s legal conclusions de novo, and assess its factual findings for
substantial evidence. [Citation.] We will not reverse the court’s application of the law to
the facts unless it is ‘arbitrary and capricious.’ [Citation.]” (In re Butler (2018) 4 Cal.5th
728, 738-739.)
We assume, for the sake of argument, that the trial court could award costs only if
they were reasonably necessary for the litigation of Precision’s complaint, as opposed to
24 Ms. Luzuriaga’s cross-complaint. Even if so, Precision fails to show that the trial court
broke this rule. It asserts: “The subject matter of the depositions concerned both the
mechanic’s lien, and the construction defect allegations of [the] Cross-Complaint.” The
cited portion of the record, however, fails to support this; in fact, the citation is to a
completely irrelevant document.
Presumably the citation is intended to be to the declaration of Precision’s counsel,
in which he stated: “All of [the depositions] were noticed and taken in relation to the
cross-complaint.” Counsel for the Luzuriagas, however, testified, to the contrary, that
“[t]he subject matter[s] of all depositions . . . are all part of [Precision’s complaint] and
related to my clients’ affirmative defenses of set-off and unclean hands.” This presented
a classic factual issue for the trial court to resolve. On this record, no matter which way it
resolved it, its decision would be supported by substantial evidence. Certainly
Precision’s briefing fails to show otherwise.
Finally, Precision introduced no evidence that the claimed filing fees and service
of process fees did not relate to Precision’s complaint. For this reason alone, the trial
court properly refused to apportion these costs.
VII
LUZURIAGA’S CROSS-APPEAL
In the cross-appeal, Luzuriaga contends that the trial court erred by (1) denying his
motion to compel production of documents and (2) summarily adjudicating his
25 unlicensed contractor defense. Because we are affirming the judgment, these contentions
are moot.
VIII
DISPOSITION
The judgment is affirmed. In the interest of justice, each side shall bear its own
costs.
CERTIFIED FOR PARTIAL PUBLICATION RAMIREZ P. J.
We concur:
McKINSTER J.
SLOUGH J.