Defendants appeal from a judgment decreeing the foreclosure of plaintiffs' mechanic's liens for work performed in connection with the construction of 34 apartments consisting of separate multiple units in a subdivided tract located in the City of Palm Springs.
This controversy involves two actions brought by various subcontractors to foreclose their mechanic's liens. The actions were consolidated for trial and the appeals from the judgments in both cases have been consolidated.
Costa Tierra Ltd. as owner-builder, contracted individually with each of the various crafts and trades involved in the project, including the plaintiffs. The project was commenced in January 1964, and proceeded without interruption until it was completed. Notice of completion was signed on September 14, 1964, and recorded September 18, 1964. Plaintiffs filed their respective liens between December 11, 1964, and April 26, 1965.
It is the contention of defendants that plaintiffs' claims of lien were not timely filed after recording of the notice of completion by defendant Costa Tierra Ltd. Section 1193.1 of the Code of Civil Procedure
Plaintiffs argue that the entire work of improvement was subject to acceptance by the City of Palm Springs pursuant to the provisions of section 1193.1, subdivision (e); that acts constituting such acceptance did not occur prior to March 24, 1965, and the liens were each timely filed.
The trial court found that the entire project, including both construction of apartment units and on-site and off-site lot improvement, was a single work of improvement subject to acceptance by governmental or public authority under section 1193.1, subdivision (e).
The primary issue presented for our determination is whether the evidence sustains the finding that the entire project was subject to acceptance by the City of Palm Springs. A subsidiary question is whether there are separate works of improvement subject to acceptance by the City of Palm Springs. A further secondary issue is whether substantial work was done under any of the original contracts after September 18, 1964, thereby invalidating the notice of completion. The final problem for our solution is whether this appeal is from the proper judgment.
Completion was then dependent upon acceptance by public authority only if the work was of the character described in section 1184.1 which provides for imposition of a lien upon the lot or tract of land for grading, filling or otherwise improving the land itself, or the streets, highways or sidewalks fronting or adjoining the lots, the installation of sewers or other public utilities and construction of areas, vaults, cellars or rooms under the sidewalks. The 1963 amendment deleted the reference to section 1184.1 and added the words "the" immediately preceding "work" and "improvement" in the first reference in the section to that subject. As amended and in effect at the time these claims of mechanic's liens were asserted, this section read as follows: "If the work of the improvement is subject to acceptance by any public or governmental authority, the completion of such work of improvement shall be deemed to be the date of such acceptance."
Plaintiffs urge that the following evidence supports the conclusion reached by the trial judge:
First, the contracts of plaintiffs with the defendant owner-builder. Said contracts provide that the work and material shall conform with the requirements of applicable ordinances and rules of any governmental agency, be subject to approval and inspection by the city, and the work not be deemed completed until such inspection and approval, acceptance by the owner, and proper filing of notice of completion.
Second, the subdivision map which notes "all work shall be done according to the standard plans and specifications of the City of Palm Springs."
Third, the requirement of the Department of Health for final inspection of swimming pools.
Fourth, the Planning Commission minutes providing that granting of conditional use and building permits is conditioned upon approval by the public works department of streets, driveways, fire hydrants, sewage and waste disposal systems; and requiring future submission of a landscaping plan.
Fifth, the subdivision ordinance
Sixth, Ordinance Number 647 of the City of Palm Springs, adopting the Uniform Building Code, and requiring that no building or structure shall be used or occupied until the building official has issued a certificate of occupancy, and that inspection and approval are required of the work of improvement during its various stages of progress.
Seventh, the existence of various documents indicating that one of the conditions for acceptance of the work of improvement by the City of Palm Springs was posting of a maintenance bond.
Eighth, the inspector's log from the engineering division of the Department of Public Works of Palm Springs reflecting that on March 24, 1965, the city engineers waived the maintenance bond because "The complications are too time-consuming, etc., and his visual inspection shows it looks okay, then all work is completed and acceptable."
Ninth, testimony of defendants' expert witness that his understanding of completion was that if all the code requirements concerning building safety were complied with, this would be acceptance.
Defendants assert that there is a distinction between "acceptance" as used in section 1193.1, subdivision (e) and "approval" as used in the ordinances, minutes and correspondence of the city. They contend that the 1963 amendment of section 1193.1, subdivision (e) by deletion of the phrase "is of the character referred to in Section 1184.1 of this code" was accomplished at the same time that section 1192.1 was amended. Section
Section 1192.1, subdivision (b), however, refers only to completion deemed to have occurred after 30 days continuous cessation of labor, and the acceptance of completion by resolution, minute order or other official act of the awarding authority. Thus the requisite acceptance set forth in this section is to be distinguished from the "acceptance" of the work of improvement as contemplated by 1193.1, subdivision (e).
Routine inspections and approvals prior to commencement and during the progress of the work of improvement, as required by the subdivision ordinance and the building code, are not equivalent to a requirement of acceptance of the entire project by the governmental authority and the parties obviously may not impose that condition upon the city by terms of their private contract. Certificates of occupancy are issued after final inspection and determination that the building complies with provisions of the building code and relate only to the purposes for which a building is used or intended to be used. They are not evidence of acceptance or requirement of acceptance of the work of improvement. Minutes of the
The fact, if it be a fact, that the public or governmental authority accepts a work of improvement is relevant only if the work is subject to acceptance. There is a distinction between the fact of acceptance and the requirement that the work be subject to acceptance.
Plaintiffs claim that the requirements of the building code relating to interim and final inspections and issuance of certificates of occupancy, constitute a requirement for "approval" and hence the work of improvement is subject to acceptance by the governmental agency. Defendants argue on this appeal that most localities throughout the state have adopted similar building codes governing all phases and types of construction; that if this be deemed a requirement for "acceptance" by a governmental agency, then subdivisions "(c)" and "(d)" of section 1193.1 relating to time for filing liens after notice of completion or the statutory equivalent of completion would not be effective in most instances. We do not believe the Legislature intended the latter result.
The 1963 amendment to 1193.1, subdivision (e) eliminated the requirement that the work of improvement be of the character referred to in section 1184.1 and thus expanded and enlarged the coverage which may be afforded by that section. Counsel have not cited nor have we discovered any authority defining acceptance as used in 1193.1, subdivision (e) and cases considering the effect of that section prior to its amendment have involved the existence of an ordinance or resolution by the governmental authority requiring acceptance of the work. (Southwest Paving Co. v. Stone Hills, 206 Cal.App.2d 548 [24 Cal.Rptr. 48] (streets); Richards v. Hillside Development Co., 177 Cal.App.2d 776 [2 Cal.Rptr. 693] (streets, sewers and water mains in a subdivision); McGaw v. Master Craft Homes, 105 Cal.App.2d 304 [233 P.2d 185] (street work in subdivision under private contract).)
We hold that the phrase "subject to acceptance" as set forth in section 1193.1, subdivision (e) is not to be equated with inspection and approval or the issuance of certificates of occupancy under building regulations, but must find its base in some legislative enactment by the public authority. No such ordinance or resolution had been adopted by the City of Palm Springs, with the exception hereinabove noted for street work, and we conclude that the entire work of improvement was not subject to acceptance by the city.
The evidence establishes that the Yeager and Thome contracts were separate from any contract or agreement respecting erection of the residential units. The trial court found: "1. Plaintiffs YEAGER, THOME and ZIEGLER rendered improvements, labor and materials, of the type falling within the provisions of CCP 1189.1.
"2. Defendants did not comply with any of the provisions of CCP 1189.1; they did not enter into any contract for the protection of said plaintiffs nor did they post any bond."
Whether these works of improvement were "of the character referred to in section 1184.1" requires a consideration of each claim.
The improvements mentioned by section 1184.1 have been characterized by text writers as "civic," (Legal Aspects of Real Estate Transactions (Cont.Ed.Bar 1956), p. 415; California Land Security and Development (Cont.Ed.Bar 1960), p. 728) since the governmental authority may have a continuing concern in their installation and maintenance as it affects other properties and governmental functions of the public entity.
Plaintiff Yeager furnished labor and material for installation of the streets, curbs, gutters and sidewalks in the tract. This work was provided for in a separate contract from any contract or agreement with respect to the erection of residential units, was clearly within the scope of section 1184.1, and is deemed to be a separate work of improvement under section 1189.1. It was subject to acceptance by the city through issuance of certificate by the city engineer as required by the subdivision ordinance and the Planning Commission. Although the trial court found that the "project" was not accepted by the city until March 24, 1965, there is no finding of acceptance of this specific work of improvement. Defendants contend that acceptance by the city on or before September 23, 1964, is evidenced by inter-office memorandum between employees of the Public Works Department reciting "All work completed and final. Holding for maintenance bond since 9/23/64. Have they been received." The record does not disclose the issuance of any certificate of compliance by the city engineer as required by section 9664 of subdivision ordinance, nor any other formal act of acceptance by the city. The inter-office memorandum does not meet the requirements of
We conclude that the work of improvement performed by plaintiff Yeager was a separate contract, dependant upon acceptance by the City of Palm Springs, and his claim of lien was timely filed.
On the other hand, if Thome's work consisted of mowing the lawn and watering it and the shrubs as alleged by defendants, then it would appear that the lien for that work was improperly granted. (Young v. Shriver, 56 Cal.App. 653 [206 P. 99]; California Portland Cement Co. v. Wentworth Hotel Co., supra.) This follows because permanency of improvement is an essential characteristic of work giving rise to a lien (Ogden v. Byington, 198 Cal. 151, 156 [244 P. 332]).
Landscaping, and such maintenance as may be necessary to insure that the planting is well established on the ground, is a work of improvement of the character referred to in section 1184.1. In this case it was the subject of a separate contract from any agreement with respect to erection of the residential units and is deemed to be a separate work of improvement under provisions of section 1189.1. It is not, however, subject to acceptance by the city under 1193.1, subdivision (e). Defendants allege that the only evidence of completion of the initial landscaping contract is contained in the billing statement sent to defendant Costa Tierra, dated September 4,
Section 1193.1, subdivision (j), provides that a claim of lien shall contain, inter alia, "a description of the property sought to be charged with the lien sufficient for identification."
Ziegler testified that he did not complete the installation of yard lights until September 30, 1964; that thereafter during the month of October he connected ranges and ovens and completed the change of a timing system on the yard lights on October 16, 1964. All of these dates are subsequent to the notice of completion. Defendants urge that the yard light work was under a separate contract and was a separate work of improvement under provisions of section 1189.1, subdivision (a).
Assuming arguendo that the notice of completion recorded September 18, 1964, was valid and effective, then Ziegler's lien filed December 11, 1964, was not timely filed within 60 days. (Code Civ. Proc., § 1193.1.) We have searched the record and find no evidence of the date of completion of the basic contract under this theory. If this be deemed a separate contract under section 1189.1, then the claim of lien was timely filed for the work performed under such contract only. If it represents extra work of substantial nature done under his original contract, then the notice of completion was premature and void.
We take judicial notice of the fact that yard lights, used primarily for artistic and decorative effect in the outlining and illumination of paths, walks or plantings, are an integral part of the landscaping scheme or design. This is particularly true in recreation or resort areas such as Palm Springs. It is therefore the character of work referred to in section 1184.1 and may, under proper circumstances, be deemed a separate work of improvement under section 1189.1. Defendants concede that Ziegler's lien was timely filed for the additional work performed under such separate contract only.
Defendants, pursuant to section 634, made a written request of the trial court for special findings upon the following issues:
"9. Whether or not the work by Ziegler on the yard lights and switching of time clocks, or either of them, is deemed a separate work of improvement under the provisions of CCP 1189.1.
"27. Whether or not the work on the residential units, the work by Yeager, the landscaping work by Thome, the yard lights work by Ziegler and the roof work by Smith after the Notice of Completion were each separate works of improvement, to each of which the mechanic's lien statutes must be applied particularly.
"28. When was each work of improvement completed."
No such specific findings were made by the trial court and, as a result, there are possible conflicting findings on this issue. Section 634, as then applicable, provides that if there is ambiguity or conflict the appellate court "shall not infer that the trial court found in favor of the prevailing party on such issue." This is a material issue of fact. The trial court based its judgment upon the premise that the entire work of improvement was subject to acceptance by the City of Palm Springs. Since all claims of lien would have been timely filed under that concept, the court below apparently did not regard the finding of separability of the contracts to be necessary. For the reasons hereinbefore stated, we do not agree that all work of improvement on this project was subject to acceptance by the City of Palm Springs. Upon retrial, the court must determine whether there were separate contracts with Ziegler either in fact, or deemed to be such under provisions of section 1189.1, subdivision (a).
Smith was the roofing contractor and completed his part of the work by July 6, 1964. At the commencement of his work, he informed defendant's assistant superintendent that the roof, as designed by the architect, was defective and would leak. Nevertheless, he was instructed to proceed with the roofing in accord with the plans and specifications. His prediction that the roof would leak proved to be correct.
In October 1964, he discussed with the defendant Costa Tierra's job superintendent the necessity for additional work to correct the leaking condition of the roof. It was agreed that the work be done and that Smith would assume one-half of the cost. This additional work was completed on October 23, 1964.
Plaintiffs contend that the work was contemplated under the original
Defendants urge that this work was done under a separate contract and does not affect the right to file liens arising under other contracts nor invalidate the notice of completion, and concede that this claim of lien was timely filed and is valid to the extent of the additional work. Upon retrial the court must find whether the additional work was performed as part of the basic contract or if it was the subject of a separate contract. If it is determined that this work was contemplated by the original contract and is substantial in nature (32 Cal.Jur.2d, p. 677), then the notice of completion was premature, invalid and of no effect as to all lien claimants. Such finding will of necessity require a consideration of timely filing of all liens excepting that of plaintiff Yeager.
We summarize by noting that the Yeager claim is a separate contract subject to acceptance by the city and is timely filed. The Thome claim for landscaping is deemed to be a separate contract under section 1189.1, but not subject to acceptance by the city. Insofar as it purports to be for maintenance in excess of that necessary to establish the planting, it is not a lienable item. The Ziegler claim for yard lights is either a separate work of improvement under section 1189.1 or is under the original contract, and this requires a specific finding by the trial court. The Smith claim is either a separate work of improvement in fact or the completion of his original contract, and the trial court must resolve that question. The validity of the lien claims of all other plaintiffs is dependent upon specific findings by the trial court as to which, if any, plaintiffs performed substantial work on the project under their original contracts after the notice of completion.
The finding of the trial court that there was substantial work after notice of completion, thus invalidating the notice of completion, is vague and indefinite since it may relate to work performed under separate contracts either by virtue of provisions of section 1189.1, subdivision (a) or in fact. In order to clarify this the court, upon retrial, must find the nature and extent of such work and by whom it was performed.
We note, in passing, one minor item in connection with the lien claim of plaintiff Hoams who installed the swimming pools. His construction work was completed on approximately August 20, 1964. Thereafter he did some maintenance work on the pools such as cleaning and furnishing chlorine. His lien claim included the sum of $35.05 for chlorine, and this was allowed by the trial court. It is clear that the use of chlorine in a swimming pool cannot be classified as a permanent improvement, and this is not a lienable item. The evidence fails to establish that any of Hoams' work was subject to acceptance by the city.
The record discloses that after entry of findings, conclusions and judgment on December 15, 1967, the defendants filed a motion for new trial supported by declaration of their counsel which stated "that the Motion for a New Trial should be granted to modify the judgment under the power given in C.C.P. 662 to reflect the existence of the C.C.P. 1193.2 bonds, and that the property has been freed from the effects of the liens and the actions brought to foreclose them." A minute order was entered January 19, 1968, granting the motion "for the limited purpose of introducing eight bonds into evidence" and the findings, conclusions and judgment were ordered modified as requested. The formal modified judgment was entered on February 5, 1968, in accord with the minute order excepting that the judge deleted therefrom the phrase "and this action to foreclose such liens." Motion to vacate this modified judgment by reinstating the deleted phrase was granted and judgment entered on March 6, 1968. Appeal was taken from this final judgment.
It is plaintiffs' contention that the court, having granted the motion for new trial and modified the judgment in accord with section 662,
In this connection, plaintiffs urge:
1. That the first modification of judgment was granted and judgment
2. That the motion to vacate the modified judgment was made upon the grounds that the judgment was not supported by the findings of fact and conclusions of law; that the only ground specified in section 663 vesting power in the court to vacate the judgment and enter a different judgment is "incorrect or erroneous conclusions of law not consistent with or supported by the findings of fact"; that the order granting the motion was not within the grounds authorized by the statute and is void; and that the judgment entered pursuant to that order is also void.
Modification of the judgment of February 5, 1968, or reopening of the case for further proceedings under section 662 is "in lieu of granting a new trial" and therefore an alternate procedure available to the trial court. "[P]roper practice is to deny the motion for new trial and, in conjunction with such ruling, to grant the alternative relief provided in such section." (Bureau of Welfare v. Drapeau, 21 Cal.App.2d 138, 149 [68 P.2d 998]; Jacuzzi v. Jacuzzi Bros., Inc., 243 Cal.App.2d 1, 23 [52 Cal.Rptr. 147].) In a similar situation in which the trial court granted a motion for new trial and the minute order added the phrase "pursuant to section 662 of the Code of Civil Procedure," it was held that the trial court "merely intended to grant the alternative relief provided for by section 662" and that the order should be construed as a denial of the motion for new trial and the granting of such alternative relief. Appeal was deemed to lie only from the second judgment. (Avery v. Associated Seed Growers, Inc., 211 Cal.App.2d 613, 621-622 [27 Cal.Rptr. 625].)
In the case before us the minute order of January 19, 1968, discloses that motions were made for new trial and modification of judgment. The motion for new trial was granted for the limited purpose described above. A proposed modification of judgment was filed and the findings, conclusions and judgment amended in conformity with such proposed modification. The effect of this order must be determined by reference to the entire order, not by any isolated phrase, (Roraback v. Roraback, 38 Cal.App.2d 592, 596 [101 P.2d 772]) and with consideration given to the circumstance "surrounding the making of the order and the action of the court pursuant thereto." (Gardner v. Rich Mfg. Co., 68 Cal.App.2d 725, 740 [158 P.2d 23]; Talman v. Talman, 229 Cal.App.2d 39, 43 [39 Cal.Rptr. 863].) An
The fact that the judgment alone was amended without any further change in the conclusions of law is of no consequence. The judgment itself is "the real conclusion of law, and supersedes any conclusion of law embraced in the decision," (Roberts v. Hall, 147 Cal. 434, 437 [82 P. 66]) and is within the purview of section 663. The appeal was properly taken from the judgment of March 6, 1968. (Neff v. Ernst, 48 Cal.2d 628, 634 [311 P.2d 849].)
The judgment in favor of plaintiff Yeager is affirmed. That portion of the judgment awarding all plaintiffs money damages against defendant Costa Tierra Ltd. is affirmed. In all other respects the judgment is reversed. Each party to bear his own costs on appeal.
Kerrigan, Acting P.J., and Tamura, J., concurred.
Respondents' petition for a hearing by the Supreme Court was denied February 11, 1970.
Palm Springs Subdivision Ordinance.
"9664. CERTIFICATE BY CITY ENGINEER. A certificate by the City Engineer certifying that the subdivider has complied with one of the following alternatives:
"9664.1. IMPROVEMENTS. All improvements have been installed in accord with the requirements of the regulations and with the action of the Planning Commission giving conditional approval of the tentative plat, or
"9664.2. BOND. A bond or certified check has been posted, which is available to the City, and in sufficient amount as to assure such completion or all required improvements."
".... .... .... .... ...
"9666. OTHER DATA. Such other certificates affidavits, endorsements, or deductions as may be required by the Planning Commission in the enforcement of these regulations."
Article 963 is entitled "Required Improvements" and section 9632 of that article provides for improvement of new streets in the subdivision.
"1. Incorrect or erroneous conclusions of law not consistent with or not supported by the findings of fact; and in such case when the judgment is set aside, the conclusions of law shall be amended and corrected.
"2. A judgment or decree not consistent with or not supported by the special verdict."