Appellant Halbert's Lumber, Inc., alleges it is a materialman and brings this action to foreclose a mechanic's lien on the personal residence of respondent Joseph W. Burdett and his wife, Mary Jean Burdett. This real property, owned by the Burdetts, is located within the Los Angeles Judicial District. James Calo Construction, the general contractor who is identified in the exhibits to the complaint as the person who contracted with appellant for the purchase of the purported materials, is not named as a defendant.
Appellant's claim of lien was filed on December 26, 1984. Appellant filed its complaint on February 27, 1985, in the Municipal Court for the South Bay Judicial District of Los Angeles County. On appeal following that court's denial of a motion for change of venue, this court reversed and directed a change of venue to the Municipal Court for the Los Angeles Judicial District on the ground that the latter court is the proper court for an action to foreclose on the Burdetts' property.
Burdett also demurred to appellant's purported second cause of action, a common count. This court previously determined that this purported common count is invalid as a matter of law on the face of the complaint.
On April 23, 1987, the court below, the Honorable Richard A. Paez, Judge presiding, found appellant's purported causes of action to be barred as a matter of law, sustained Burdett's demurrer without leave to amend and dismissed the action. This appeal followed.
CONTENTIONS ON APPEAL
Appellant initially contends that the trial court erred in sustaining respondent's demurrer without leave to amend. Appellant asserts that since the foreclosure action was filed in the proper county, it was therefore filed in the proper court regardless of the initial erroneous filing in the wrong judicial district.
Appellant further contends that even if the action was filed in the wrong judicial district, but within the proper county, under Code of Civil Procedure section 396,
Lastly, appellant contends that his second cause of action sounding in a common count directly against the property owner is viable regardless of the outcome of the decision on foreclosing the mechanic's lien.
In reviewing the trial court's denial of respondent's motion for a change of venue, this appellate department determined that the proper court for this action was in the Los Angeles Judicial District. Accordingly, the trial court ordered the action transferred to the proper court, i.e., the Los Angeles Judicial District, on February 23, 1987, well after the 90-day period to file in the proper court had expired.
In Douglas v. Donner Pines, Inc. (1977) 73 Cal.App.3d 268 [140 Cal.Rptr. 839], the appellate court held that dismissal of the complaint to foreclose a mechanic's lien was proper when the action was transferred to the "proper court" more than 90 days after the claim had been recorded. In Douglas, the court determined that the action was not filed in the proper court because it had been filed in the wrong county. The Douglas court's reasoning in interpreting a "proper court" was based on the analysis of the precise purpose of a particular statute (Code Civ. Proc., § 392), and not on the subtleties of the constitutional distinction between jurisdiction and venue, jurisdiction having been eliminated from consideration (with respect to defining "proper court" for commencement of actions to foreclose liens on realty) by the repeal of former article VI, section 5, of the California Constitution in 1966. (Douglas, supra, at p. 271.) Although in the instant case the issue of the "proper court" was decided on the basis of filing in the wrong judicial district, the situation is analogous to that faced by the court in Douglas.
Appellant argues that Code of Civil Procedure section 396 is applicable to this case since this appellate department held in Division of Labor Law Enfmt. v. Egnew Investment, Inc. (1966) 247 Cal.App.2d Supp. 863, 865 [55 Cal.Rptr. 767], that where an action is brought in the wrong judicial
The order of dismissal is affirmed. Respondent to recover costs and attorney's fees on appeal pursuant to Civil Code section 1717.
Newman, Acting P.J., and Roberson, J., concurring.
"(2) The proper court for the trial of any such action, in the county hereinabove designated as the proper county, shall be determined as follows: [¶] If there is a municipal or justice court, having jurisdiction of the subject matter of the action, established in the city and county or judicial district in which the real property which is the subject of the action, or some part thereof, is situated, such court is the proper court for the trial of such action; otherwise any court in such county having jurisdiction of the subject matter of the action, is a proper court for the trial thereof."