Opinion
E052430 Super.Ct.No. CIVSS813919
12-28-2011
D.L. WIEST ENTERPRISES, INC., Plaintiff and Respondent, v. BEK CONSULTING ENGINEERS, INC. et al., Defendants and Appellants.
Law Offices of Gregory J. Hout and Gregory J. Hout for Defendants and Appellants. Law Offices of Scott J. Nord and Scott J. Nord for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Janet M. Frangie, Judge. Affirmed.
Law Offices of Gregory J. Hout and Gregory J. Hout for Defendants and Appellants.
Law Offices of Scott J. Nord and Scott J. Nord for Plaintiff and Respondent.
I
INTRODUCTION
BEK Consulting Engineers, Inc. and 2001 Roknian Revocable Trust (collectively, "appellants") appeal from entry of judgment following a court trial resulting in foreclosure on a mechanic's lien on appellants' property. The trial court granted a default judgment against codefendant Strata Equipment Rentals, Inc. (Strata) and authorized plaintiff D.L. Wiest Enterprises, Inc. (Wiest) to foreclose on its mechanic's lien.
Strata is not a party to this appeal.
Appellants challenge the foreclosure judgment on the grounds Wiest's mechanic's lien was not timely recorded and, even if timely, the lien was invalid because of Wiest's noncompliance with the preliminary 20-day notice requirement under Civil Code section 3097. Appellants also argue Wiest's mechanic's lien was invalid because there was no work of improvement and no evidence establishing the reasonable value of the use of Wiest's equipment on the property.
Unless otherwise noted, all statutory references are to the Civil Code.
We conclude Wiest's mechanic's lien was timely recorded and Wiest served a valid preliminary 20-day notice on the "reputed owner" of the property under section 3097, subdivision (a). We further conclude removal of soil from the property, using Wiest's rental equipment, qualifies as a work of improvement under mechanic's lien law. Also, Wiest provided sufficient evidence establishing the value of Wiest's labor, services, and materials, for purposes of foreclosing on Wiest's mechanic's lien. The judgment is affirmed.
II
FACTS AND PROCEDURAL BACKGROUND
Defendants BEK Consulting Engineers, Inc. (BEK), 2001 Roknian Revocable Trust (Roknian), and 26 Berookhim Investment Inc. (Berookhim) (collectively referred to as "defendants") own tract No. 16742, which is undeveloped property in Redlands (the property). Defendants own the property as tenants in common, in equal one-third shares. In 2007, Dr. Hamid Roknian agreed to allow Strata to remove dirt from the property. Dr. Roknian confirmed this in a letter dated June 25, 2007, to Strata. Dr. Roknian stated the subject line of his letter was, "Authorization and Letter Of Intent Track # 16742." Dr. Roknian stated in his letter that authorization of soil removal was conditioned upon (1) compliance with the property grading plan, (2) the property owners not being held liable for any third party claim or damages, and (3) there being no adverse "affect" on the property. Dr. Roknian further stated in his letter that, "Upon the satisfactory removal of the soil, the owner inten[ded] to hire Strata Equipment for the Improvement and grading of the said property based on [Strata's] proposal dated [June 7th,] 2007. This letter of Intent is contingent upon the owner's economic feasibility and the approval of their construction loan."
In September 2007, Strata rented earthmoving equipment from Wiest and began removing dirt from the property. The rental equipment used to remove the dirt included two "623 paddle wheel scrapers." Wiest also provided an equipment operator the first four days the equipment was used on the property. Thereafter, Strata used its own operators.
At Wiest's request, on November 7, 2007, CRM Lien Services, Inc. (CRM) prepared and served a preliminary 20-day notice (preliminary notice) on BEK, notifying BEK that Wiest was providing Strata with earthmoving rental equipment to be used on defendants' property, at an estimated cost of $60,000. The notice was sent to BEK at 411 West State Street in Redlands. The preliminary notice was returned with a notation, "address unknown." On December 13, 2007, CRM reserved the notice on BEK at 731 Wimbleton Drive, in Redlands.
On December 15, 2007, after Strata finished removing dirt from the property, Wiest retrieved its earthmoving equipment from the property. According to statements and invoices presented at trial, the cost of Wiest's rental equipment and related services and expenses amounted to $83,746. Wiest understood that Strata would be renting its earthmoving equipment again in connection with construction work on the property.
In July 2008, Steve Williams, Strata's owner and president, informed David Wiest that defendants had not paid Strata and therefore Strata would no longer be working on the property. On July 15, 2008, Wiest recorded a $83,746 mechanic's lien against the property, for the cost of services, material, and labor provided at Strata's request. Defendants refused to pay Wiest for the rental equipment and services. Defendants claimed Wiest's mechanic's lien was untimely. On August 8, 2008, Strata recorded a notice of cessation of labor, as of July 3, 2008.
It appears from the notice of cessation, verified by Steve Williamson, as president of Strata, that Williams's true name is Steve "Williamson," not Steve Williams.
On October 6, 2008, Wiest filed a complaint against Strata and defendants, seeking judgment against Strata for recovery of the cost of renting Wiest's equipment, and for foreclosure on Wiest's mechanic's lien against defendants' property. BEK and Roknian cross-complained against Strata. Strata defaulted on the complaint and cross-complaint. Berookhim also defaulted on the complaint. The matter was tried on September 24, 2010.
After the prosecution presented its case in chief, defense counsel moved for a defense judgment on the grounds Wiest did not serve a timely preliminary notice on defendants, the mechanic's lien was untimely, and there was no work on the property after December 15, 2007. (Code Civ. Proc., § 631.8.) The trial court denied defendants' motion for a defense judgment. The court stated there was evidence of work on the property after December 15 based on Williams's statement to David Wiest that Strata last worked on the property in July 2008. Over defendants' objection, the court ruled that Williams's statement was admissible hearsay as an admission against interest as to both Strata and defendants.
After defendants presented their case, the court heard argument and took the matter under submission. The trial court entered a written decision on September 27, 2010, in which the court entered judgment against Strata in the amount of $107,011.33, consisting of the lien amount of $83,746, plus interest. The court also authorized Wiest to foreclose on its mechanic's lien, with the proceeds applying to the costs of foreclosure and then to payment of Wiest in the sum of $70,624.75 for the use of Wiest's rental equipment, plus costs of suit and interest. The remainder of the sales proceeds was to be paid to defendants.
The trial court made the following findings in its written decision. Defendants were the owners of the property in question. Between September 29, 2007, and December 17, 2007, Wiest furnished equipment and labor for use on the property, at the request of Strata, acting as defendants' agent. Defendants had knowledge of the work of improvement on their property. On November 7, 2007, Wiest served defendants and Strata with a preliminary notice. Because Wiest did not serve the notice within 20 days after commencing work on the property, Wiest's lien was limited to all work furnished on and after October 18, 2007. On July 15, 2008, Wiest timely filed and recorded a mechanic's lien. Strata recorded a notice of cessation of labor on the property on August 8, 2008. Wiest timely filed its complaint on October 6, 2008.
III
MECHANIC'S LIEN
Appellants contend Wiest's mechanic's lien is invalid and unenforceable because it was not timely recorded. We disagree.
A. Applicable Mechanic's Lien Law
"'A mechanics' lien is the remedy provided by the California Constitution as implemented by the statutes; it enforces against the owner of property payment of the debt incurred for the performance of labor, or the furnishing of material used in construction. [Citation.] The purpose of the statute, Civil Code sections 3082 through 3267, is to provide protection to the supplier of materials or services used in an improvement to land, and to ensure that the supplier receives the payment due. [Citation.] The supplier requires this protection because of the contribution which increases the value of the property.'" (Fontana Paving, Inc. v. Hedley Brothers, Inc. (1995) 38 Cal.App.4th 146, 153 (Fontana Paving), quoting Gary C. Tanko Well Drilling, Inc. v. Dodds (1981) 117 Cal.App.3d 588, 593-594 (Dodds).)
Whenever possible, statutes pertaining to enforcement of mechanics' liens "'should be liberally construed to effectuate the purposes of the law. [Citation.] When in dispute, a determination of the prescribed time is a matter of law which may be independently considered on appeal by a construction of the pertinent statutes. [Citation.]' [Citation.]" (Fontana Paving, supra, 38 Cal.App.4th at p. 154, quoting Dodds, supra, 117 Cal.App.3d at pp. 593-594.)
Under California's mechanic's lien law, a mechanic's lien attaches to any interest in a work of improvement and the real property on which it is situated. (§ 3128.) The lien is a direct lien, similar to a mortgage, and is imposed as security for payment of sums due the mechanic. (Id., § 3123; 10 Miller & Starr, Cal. Real Estate (3d ed. 2001) § 28:4, pp. 18-19.) To preserve a mechanic's lien, the lien claimant must serve a preliminary 20-day notice on the property owner under sections 3097 and 3114, and timely record a claim of lien within certain time periods following the completion or cessation of work. (§§ 3115-3116.) The recordation of the mechanic's lien provides constructive notice of the lien to subsequent purchasers and encumbrancers. (10 Miller & Starr, supra, § 28:48, pp. 159-160.) Although the mechanic's lien may be recorded after the work is completed, the lien relates back to the date the first labor or material was furnished for the work of improvement. (Schrader Iron Works, Inc. v. Lee (1972) 26 Cal.App.3d 621, 632; Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1247.)
B. Timeliness of Wiest's Mechanic's Lien
Under section 3116, "Each claimant other than an original contractor, in order to enforce a lien, must record his claim of lien after he has ceased furnishing labor, services, equipment, or materials, and before the expiration of (a) 90 days after completion of the work of improvement if no notice of completion or cessation has been recorded, or (b) 30 days after recordation of a notice of completion or notice of cessation." (§ 3116.)
Here, there was no notice of completion of work and Strata did not file a notice of cessation until August 8, 2008, after Wiest recorded its mechanic's lien. Therefore, Wiest was required to record its mechanic's lien within 90 days after completion of the work of improvement under section 3116. Appellants argue Wiest's mechanic's lien was untimely because Wiest's work of improvement was completed on December 15, 2007, and Weists mechanic's lien was not recorded until July 15, 2008.
The timeliness of Wiest's lien turns on whether Wiest's removal of its rental equipment from the property on December 15, 2007, constituted completion of work, triggering the 90-day limitation period to record a mechanic's lien. We conclude there was sufficient evidence supporting the trial court's finding that "completion of the work of improvement" on defendants' property under section 3116 did not occur until July 2008. Such evidence includes Strata's notice of cessation, Dr. Roknian's letter of authorization and intent dated June 25, 2007, and testimony by David Wiest and Dr. Roknian.
David Wiest testified that, even though Wiest removed its equipment off the property in December 2007, David Wiest understood Strata had not completed work on the property and would continue using Wiest's rental equipment on the project in the future. After Wiest's equipment was moved off the property, Strata continued working on the job site, doing erosion control and maintenance on the property. Williams told David Wiest that Strata would need the scrapers back on the property in the future. Strata indicated that the date when the equipment would be needed would depend on bank financing. David Wiest understood that he would be paid for the use of his rental equipment on defendants' property upon Strata receiving a "joint check from the owner."
The last time Williams told David Wiest that Strata was working at the project site was in July 2008. It was also not until July of 2008, that Williams told David Wiest that Strata would not be returning to the job site and would be filing a notice of cessation of labor. Wiest then recorded a mechanic's lien against the property (exh. 2).
David Wiest further testified that he spoke to Strata about the loan for financing the property construction. Strata provided David Wiest with a copy of a letter dated November 26, 2007, from Temecula Valley Bank, to Mozafar Behzad, owner of BEK, at Behzad's residence address on Wimbleton Drive in Redlands. The letter stated that the bank was interested in providing construction financing for the proposed residential subdivision on the property. The letter included a general outline of the terms and conditions for the proposed loan structuring. Defendants were listed as the borrowers. The proposed loan was for $3.65 million, with an 18-month term. A firm commitment to lend money to defendants had not yet been made or accepted.
David Wiest's understanding of the letter was that defendants were applying for construction financing from Temecula Valley Bank and were going to build 15 homes on the property, with construction continuing over several years. David Wiest understood that the final loan paperwork was being completed and the loan was "pretty much a done deal and this [was] how they were going to pay" Wiest. This is why David Wiest believed the construction would be continuing into 2008 and later. David Wiest thought Strata was going to do the grading using Wiest's equipment.
Dr. Roknian's letter of authorization and intent, dated June 25, 2007, indicated that defendants intended that Strata would not only remove soil from the property, but would also provide grading work and other improvements to the property, contingent upon defendants obtaining the necessary financing for the work. In addition, Dr. Roknian testified that he told Strata in his letter that, if the property owner got a construction loan and, if it was economically feasible, then the owner would proceed with additional work on the property. Dr. Roknian acknowledged receiving a letter from Temecula Valley Bank indicating the bank intended to provide a construction loan for the project. Defendants submitted to the bank a loan application for $3.6 million but never got the loan. Dr. Roknian testified that he told Strata that defendants intended to develop the property the following year if the economy was good and that Strata was welcome to bid on the project. In June 2007, Williams of Strata sent Dr. Roknian a construction proposal to develop the property. The project included grading the property, installing electric power and gas, demolishing the "defacing" by the road, and expanding the road.
The evidence was sufficient to support the trial court's finding that Strata continued working on the property after removing soil from the property using Wiest's equipment, and did not cease working on the property until July 3, 2008, as stated in Strata's notice of cessation. In turn, Strata's need for Wiest's earthmoving equipment ceased at that time and Wiest was required to file a mechanic's lien within 90 days. Upon learning Strata had ceased working on the property in July, Wiest timely filed its mechanics lien on July 15, 2008. There was evidence Strata had begun construction work on the property, which continued after Wiest removed its equipment in December 2007, up until July 2008. There was also evidence defendants intended that Strata, not only remove dirt from the property, but also provide additional work on the property, including grading, which required the use of Wiest's earthmoving equipment. Under these circumstances, we conclude Wiest's mechanic's lien was timely filed.
Appellants argue in their reply brief that the only evidence supporting a finding that Strata told Wiest his equipment would be needed again after December 2007, consisted of inadmissible hearsay, which the trial court erred in admitting into evidence. Because appellants did not raise the objection in their opening brief, appellants forfeited this evidentiary challenge. "Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. To withhold a point until the closing brief deprives the respondent of the opportunity to answer it or requires the effort and delay of an additional brief by permission." (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) Here, there is no good reason for appellants failing to raise the evidentiary issue in their opening brief and it does not constitute proper rebuttal on appeal, particularly since Wiest has been deprived of the opportunity to respond to the admissibility challenge on appeal.
Furthermore, even if the testimony constituted inadmissible hearsay, any error in allowing the testimony was harmless error. There was sufficient evidence, other than David Wiest's hearsay testimony, establishing that Strata continued working on the property after Wiest removed his equipment and that David Wiest was led to believe his equipment would be needed again on the job site. The notice of cessation indicated Strata continued working on the property until July 3, 2008. David Wiest also testified he believed his equipment would be needed again on the property and therefore did not file a mechanic's lien until he was informed Strata would no longer be working on the project. Dr. Roknian's letter, sent to Strata in June 2007, further indicates that defendants intended that Strata, not only remove soil from the property, but also provide grading and other construction work, which would require Wiest's equipment.
This evidence, apart from Wiest's hearsay testimony, was sufficient to establish that Wiest timely recorded his mechanic's lien. David Wiest reasonably believed Strata continued working on the property until July 2008, and therefore Strata would continue to use Wiest's earthmoving equipment to develop the property after soil was removed from the property.
IV
PRELIMINARY 20-DAY NOTICE
Appellants contend that Wiest failed to comply with section 3097, which required Wiest to serve a preliminary 20-day notice (preliminary notice) on defendants before recording a mechanic's lien. Appellants argue that, although Wiest served a preliminary notice on BEK, notice was not served on all three owners. In addition, the first preliminary notice was sent to the wrong address and therefore was invalid.
A. Applicable Law Regarding Preliminary Notice
Normally, service of a preliminary notice is required in order to enforce a mechanic's lien. (§ 3097, subds. (a)-(b).) Those not under direct contract with the owner, who furnish labor, services, equipment, or material, for which a lien may be claimed under mechanic's lien law, must serve a preliminary notice on the property owner. (§ 3097, subd. (a).) Serving a timely preliminary notice on a property owner preserves a claimant's rights to enforce all mechanic's liens on the property. (§ 3129; Forsgren Associates, Inc. v. Pacific Golf Community Development LLC (2010) 182 Cal.App.4th 135, 151.)
The preliminary notice is required because, although the Legislature intended the statutes to protect subcontractors and others, "it imposed the notice requirements for the concurrently valid purpose of alerting owners and lenders to the fact that the property or funds involved might be subject to claims arising from contracts to which they were not parties and would otherwise have no knowledge. [Citations.]" (Romak Iron Works v. Prudential Ins. Co. (1980) 104 Cal.App.3d 767, 778 (Romak).) The requisite preliminary notice provides owners with such notice. The preliminary notice requirement is a safeguard which ensures landowners due process of law. (Ibid.) The Legislature intended "to exact strict compliance with the preliminary notice requirement." (Ibid.)
Under section 3097, the claimant should serve the preliminary notice within 20 days after the claimant has begun providing labor, services, equipment, or material for which a mechanic's lien will be made. (§ 3097, subd. (d).) However, failure to serve the notice within 20 days after the claimant first begins the work of property improvement does not invalidate the mechanic's lien claim. If service is late, the claimant is limited to a lien for only labor, services, equipment, or material furnished within 20 days immediately preceding service of the notice and continuing through completion of work. (§ 3097, subd. (d).) The notice under such circumstances will not cover the work performed more than 20 days before service of the notice. (Romak, supra, 104 Cal.App.3d at p. 778.)
B. Notice Served on a Reputed Owner
Appellants argue that the preliminary notice was not served on all three owners of the property. It was only served on BEK. This is not fatal to Wiest's lien claim.
Section 3097, subdivision (a) states in relevant part, that "Except one under direct contract with the owner . . . , every person who furnishes labor, service, equipment, or material for which a lien . . . otherwise can be claimed under this title, . . . shall, as a necessary prerequisite to the validity of any claim of lien, . . . cause to be given to the owner or reputed owner . . . a written preliminary notice as prescribed by this section." (Italics added.)
Taking into account the realities of the construction business and the mechanic's lien law, the court in Brown Co. v. Appellate Department (1983) 148 Cal.App.3d 891, 900 (Brown), defined the meaning of "reputed owner" as follows: "The term 'reputed owner' must be given a meaning in the context of the statutory scheme in which it appears and must be consistent with the purposes of the statutory provisions. Considering these and the historical meaning ascribed to the term 'reputed owner' as used in the mechanic's lien law we are persuaded the 'reputed owner' who may lawfully be given the preliminary notice pursuant to sections 3097 and 3098 is a person or entity reasonably and in good faith believed to be the owner by those involved with the work of improvement including the general contractor and those furnishing labor, service, equipment or material to be used in the work of improvement. [Citations.]" (Ibid.) "[T]he statute contemplates that a materialman may rely on the general contractor for information as to who is the owner or reputed owner of the property." (Id. at p. 902.) Here, Wiest relied on information provided by Strata, as to the owner's identity and address.
Whether Wiest's "reasonableness and good faith in naming a reputed owner are questions of fact to be determined by the trier of fact and the question of good faith is peculiarly appropriate for determination by the trial court which sees and hears the witnesses." (Brown, supra, 148 Cal.App.3d at pp. 901-902.)
Wiest established at trial that the first and second notices were served on the "owner or reputed owner" of the property. Janice Kupratis (Kupratis), president of CRM, testified that her company, CRM, prepares construction lien documents, such as preliminary notices, and has been doing so for over 24 years. When a client requests preparation of a document, her office does research to verify the entities involved in the project and the locations where documents should be sent. CRM prepares the notices and serves them by certified mail.
At Wiest's request, CRM prepared preliminary notices in connection with defendants' Redlands property. On November 7, 2007, Kupratis prepared a preliminary notice, naming BEK as the owner. Kupratis was given the name of the owner of the property and also researched the owner. She determined that BEK was the owner. Kupratis also verified that BEK's address, 411 West State Street, Redlands, which was given to her by the general contractor, Strata, by performing an internet search for the company name and address. CRM sent the preliminary notice by certified mail to BEK at 411 West State Street, Suite A, Redlands.
After the first preliminary notice was returned undelivered, Kupratis did additional research. By doing a "corporate search," she discovered another address for BEK and sent the second notice to BEK at 731 Wimbleton in Redlands. The notice was sent on December 13, 2007, certified return receipt requested, and was received the following day. Kupratis also served Strata with the preliminary notice. Kupratis testified she had never heard of 2001 Roknian Trust or 26 Berookhim Investment, Inc. Kupratis further testified she recently did research to confirm the property owner and address. This included doing a title search, which came up with BEK as the owner. She also checked court documents. Kupratis acknowledged she had not seen the property deed. Kupratis did a "Google" search within a couple of days before the trial and came up with the address of 411 West State Street, Redlands, for BEK.
Kupratis's testimony established that Wiest, through CRM, made a good faith, reasonable attempt to serve a preliminary notice on the property owners. "As would seem to be indicated by the clear words of the statute, it is sufficient to give only the name of the reputed owner. When an individual does so in good faith, he does not lose his lien if he subsequently determines that some other individual is the actual owner. [Citations.]" (Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 19.) In the instant case, Wiest in good faith served only one of the three property owners, not knowing that there were two additional owners. Service of the preliminary notice on BEK satisfied the requirement under section 3097 that Wiest serve the reputed owner with a preliminary notice.
As the court in Brown, supra, 148 Cal.App.3d 891, noted, section 3097 "'is a remedial statute, adopted in obedience to the requirements of the constitution (art. XX, sec. 15), and is to be liberally construed in furtherance of the purposes for which it was authorized. The persons for whose benefit the statute is enacted are not presumed to be versed in the niceties of pleading, and the notices, which under its provisions they are authorized to give, have regard to substance rather than form. The terms of the section clearly indicate that it was not the intention of the legislature that in the claim of lien which he files for record the claimant shall state the name of the real owner, at the risk of losing his lien if it shall turn out that he was in error. . . . [[W]hether the person is being designated as owner or reputed owner], it is only the opinion of the claimant upon matters that are not presumptively within his knowledge, but which he has formed from external information; . . .' [Citation.]" (Brown, at p. 901, quoting Corbett v. Chambers (1895) 109 Cal. 178, 184-185.) In other words, if the preliminary notice is not received by the true owner, but is provided to someone who the claimant reasonably, in good faith, believes is the proper person, the preliminary notice is valid.
Even though the preliminary notices were served only on BEK, service of the notices was sufficient for purposes of enforcement of Wiest's mechanic's lien as to all three owners.
Because Berookhim defaulted on the complaint and is not a party to this appeal, Berookhim forfeited any objection to the preliminary notices.
--------
C. Date of Valid Service of the Preliminary Notice
Appellants argue the first preliminary notice, sent by certified mail on November 7, 2007, was invalid because it was sent to the wrong address, since BEK was no longer at 411 West State Street in Redlands. The post office returned the notice, with the notation, "address unknown." The preliminary notice was re-served on December 13, 2007, at BEK's address on Wimbleton Drive in Redlands. The trial court nevertheless relied on the date of attempted service of the first preliminary notice on November 7, when calculating the amount of Wiest's recovery on the mechanic's lien.
With regard to service of the preliminary notice, section 3097, subdivision (f) states in relevant part that "[t]he notice required under this section may be served as follows: [¶] (1) . . . by first-class registered or certified mail, postage prepaid, addressed to the person to whom notice is to be given at his or her residence or place of business address or at the address shown by the building permit on file with the authority issuing a building permit for the work, or at an address recorded pursuant to subdivision (j). [¶] • • • [¶] (3) If service is made by first-class certified or registered mail, service is complete at the time of the deposit of that registered or certified mail.'' (§ 3097, subd. (f); italics added.) Subdivision (j) concerns "[a] mortgage, deed of trust, or other instrument securing a loan." (§ 3097, subd. (j).) Apparently, there were no loan documents, since, according to Dr. Roknian, the owners did not secure loan financing for the construction, and Williams indicated there may not have been any building permits as well
Section 3097.1 states that "Proof that the preliminary 20-day notice required by Section 3097 was served in accordance with subdivision (f) of Section 3097 shall be made as follows: (a) If served by mail, by the proof of service affidavit described in subdivision (c) of this section accompanied either by the return receipt of certified or registered mail, or by a photocopy of the record of delivery and receipt maintained by the post office, showing the date of delivery and to whom delivered, or, in the event of nondelivery, by the returned envelope itself.'' (Italics added.) In the instant case, the first notice was served by certified mail and returned with the notation, "address unknown," indicating nondelivery.
Wiest established it made a reasonable, good faith attempt to serve the first preliminary notices, as well as the second notice. Strata provided Kupratis of CRM with the name of BEK, as the property owner, and BEK's address at 411 West State Street in Redlands. Kupratis testified she confirmed the information from a second source, by "Googling" the company name. Strata, Wiest, and Kupratis were unaware that BEK's address had changed.
Mozafar Behzad, owner of BEK, testified that BEK was previously located at 411 West State Street in Redlands but Behzad moved BEK to his residence at 731 Wimbleton Drive in Redlands. It is unclear as to when this occurred. Behzad testified he did not know when he moved BEK from the 411 West State Street to Wimbleton Drive. Almost a year after the first notice was served, Behzad was still using BEK's corporate stationary with 411 West State Street printed at the bottom. Behzad acknowledged that, on his letter to Wiest, dated August 5, 2008, Behzad crossed out BEK's printed address of 411 West State Street and handwrote his Wimbleton address below it.
Even though the first attempted service of BEK was unsuccessful and the post office returned the notice, Wiest was entitled to rely on the date of attempted service of the first preliminary notice, because the first attempt to serve the preliminary notice constituted a reasonable, good faith attempt to serve defendants with the preliminary notice, based on information provided by the general contractor, Strata. (Brown, supra, 148 Cal.App.3d at p. 903.) The mechanic's lien statute, section 3097, "contemplates that a materialman may rely on the general contractor for information as to who is the owner or reputed owner of the property. . . . The conclusion is irresistible the Legislature intended that, in the absence of some indication to the contrary, a potential lien claimant should be permitted to rely on the information given by the general contractor concerning the owner or reputed owner of the property." (Id. at p. 903.)
Furthermore, there was no evidence establishing when Behzad moved BEK to Behzad's residence address and no evidence that a reasonable search prior to the first notice would have disclosed BEK's change of address. Wiest used a company specializing in serving lien documents to serve the notice, which did not discover the change of address until the notice was returned undelivered. It can be reasonably inferred that Strata obtained the property owner identity and address from Roknian or Behzad, and that Strata, Kupratis, and Wiest had no way of knowing that BEK was no longer using the 411 West State Street address until the post office returned the notice with the notation "address unknown." A reasonable inference can be made that the property owners provided no notice to Strata, Wiest, or the public of BEK's change of address from State Street to Behzad's residence address on Wimbleton Drive.
Because Wiest made a good faith attempt to serve the owner of the property with a preliminary notice, the first attempt at service on November 7, 2007, constituted valid service of the preliminary notice, and the date of deposit in the mail of the first notice triggered the limitation period under section 3097 for recording Wiest's mechanic's lien
V
WORK OF IMPROVEMENT
Appellants contend there was no "work of improvement" to which Wiest's mechanic's lien could attach. Appellants argue that the removal of soil from defendants' property does not constitute a work of improvement under section 3106.
Under section 3106, "'Work of improvement' includes but is not restricted to the construction . . . of any building . . . [and] the filling, leveling, or grading of any lot or tract of land, . . . Except as otherwise provided in this title, 'work of improvement' means the entire structure or scheme of improvement as a whole." (Italics added.)
Wiest provided Strata with earthmoving equipment used to change the topography of defendants' property by removing a 20-foot pile of manmade fill from the property. Roknian stated in his letter, agreeing to Strata removing soil from the property, that authorization of soil removal was conditional upon compliance with the property grading plan. The trial court reasonably found that the removal of the soil improved the property for purposes of future development under mechanic's lien law.
VI
SUFFICIENCY OF EVIDENCE OF EQUIPMENT VALUE
Appellants summarily argue that Wiest failed to establish the value of Wiest's labor, materials, or equipment to the property. Section 3123, subdivision (a) provides that a claimant may recover the reasonable value of his labor, materials, or equipment, or the price agreed upon, whichever is less. (§ 3123, subd. (a).) Appellants claim Strata's removal of dirt from the property had no value to the property, and there was no evidence to the contrary.
Appellants' contention has no merit. First, appellants forfeited this objection by not raising it in the trial court. "'It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.'" (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249; see also Easterby v. Clark (2009) 171 Cal.App.4th 772, 783, fn. 7.)
Second, Wiest established the value of its labor, materials, and rental equipment by presenting sufficiently detailed billing statements and invoices, from which the court calculated damages and the amount of Wiest's recovery on his mechanic's lien.
VII
DISPOSITION
The judgment is affirmed. Wiest is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
McKinster
Acting P.J.
Miller
J.