Filed 12/3/19 Settimi v. Hart CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

JANINE SETTIMI, as Trustee, etc.,

Plaintiff and Respondent,

v.

ROBERT HART,

Defendant and Appellant.

F079181

(Super. Ct. No. 276569)

OPINION

THE COURT*

APPEAL from a judgment and order of the Superior Court of Tulare County. David C. Mathias, Judge.

Robert Hart, in pro. per, for Defendant and Appellant.

Harold L. Rollin for Plaintiff and Respondent.

-ooOoo-

Appellant Robert Hart contends the superior court erred in entering a judgment (1) decreeing property released from his claim of mechanics’ lien and (2) awarding the property owner attorney fees. Hart contends the court misapplied Civil Code section 8460, subdivision (a), which provides that a claimant who records a mechanics’ lien must “commence an action to enforce [the] lien within 90 days.” Hart had filed a lawsuit within the 90-day period, but the court concluded it was not an action to enforce the lien.

The critical question of statutory interpretation raised by Hart’s contentions is the meaning of the phrase “an action to enforce a lien.” (§ 8460, subd. (a).) If he obtains a reversal of the judgment based on that issue, the plaintiff will no longer be the prevailing party and, thus, will not be entitled to an award of attorney fees. We conclude the phrase “an action to enforce a lien” means a lawsuit seeking a judgment to enforce the lien—that is, a judgment that directs the sale of the property subject to the lien and the application of the sale proceeds to pay the amount secured by the lien. (§ 8460, subd. (a).) A copy of Hart’s complaint is not part of the appellate record. Therefore, he has failed to demonstrate compliance with section 8460 by establishing his lawsuit sought the sale of the property subject to the lien and the application of the sale proceeds to the payment of his claim.

We therefore affirm the judgment.

FACTS & PROCEEDINGS

Respondent Janine Settimi is a dentist and, in her capacity as trustee of the Janine Settimi Family Trust dated July 10, 2009, owns real estate located on West Acequia Avenue in Visalia (Property). Hart contends (1) Settimi is his daughter-in-law; (2) he worked as a project coordinator for Settimi for 22 months on a new dental building located on the Property; (3) Settimi refused to pay him for the work done; and (4) he recorded a mechanics’ lien claim against the Property and subsequently filed a lawsuit against Settimi to recover the compensation owed for his work. After Hart’s lawsuit was dismissed, Settimi filed a petition for an order releasing the Property from the claim of mechanics’ lien and for an award of attorney fees. The superior court granted the petition, ordered the release of the mechanics’ lien claim, and awarded the sum of $3,750 as Settimi’s reasonable attorney fees and costs. The following chronology provides background and the facts material to the issues presented in this appeal.

December 13, 2017: Hart recorded a “Mechanics’ Lien Claim” in the official records of the Tulare County Recorder that asserted he was owed $24,000.

December 20, 2017: Settimi sent Hart a letter requesting the removal of the lien.

January 13, 2018: Settimi emailed Hart a request that he remove the lien.

March 8, 2018: Hart filed a complaint against Settimi in Tulare County Superior Court, which assigned the matter case No. 182636.

March 19, 2018: An attorney retained by Settimi sent Hart a letter requesting removal of the lien. The letter stated section 8488 entitled Settimi to an award of attorney fees in an action for the removal of the lien.

July 17, 2018: In case No. 182636, the court sustained Settimi’s demurrer to Hart’s complaint on the ground he had not alleged he was a licensed contractor as required by Business and Professions Code section 7031.

July 31, 2018: Settimi’s attorney sent Hart a second letter demanding the release of the lien. The letter asserted Hart had failed to timely perfect the lien in accordance with section 8460 and, as a result, the lien had expired by operation of law.

August 10, 2018: Hart sent the attorney a letter quoting subdivisions (a) and (b) of section 8460 and stating he could not determine why Settimi claimed the lien had expired.

August 15, 2018: Settimi’s attorney sent Hart a letter stating the lien had expired because “you failed to file a lawsuit to foreclose that Lien” within 90 days from when the lien was recorded.

August 20, 2018: Hart sent the attorney a letter stating he had filed a lawsuit against Settimi within the 90-day period. Hart stated he would be happy to release the lien if the attorney could explain why his lawsuit, case No. 182636, did not comply with the statute.

November 13, 2018: The superior court entered an order dismissing Hart’s lawsuit, case No. 182636, with prejudice.

December 11, 2018: Settimi filed a petition for an order releasing the Property from the claim of mechanics’ lien. The petition requested reasonable attorney fees and costs under section 8488, subdivision (c).

January 17, 2019: Hart filed his opposition to the petition. Hart argued his lawsuit had been filed 86 days from the date the lien was recorded and, therefore, he complied with the statutory requirement to file suit within 90 days.

January 31, 2019: The superior court held a hearing on the petition. Hart, representing himself, presented oral argument. The court adopted its tentative ruling to grant the petition and order the release of the lien.

February 1, 2019: A judgment was entered decreeing the Property released from the mechanics’ lien claim and awarding $3,750 as attorney fees to Settimi.

April 25, 2019: Hart filed a notice of appeal.

DISCUSSION

I. ACTIONS TO ENFORCE A MECHANICS’ LIEN

On appeal, Hart contends the trial court erred in finding the lien expired because there was no substantial evidence to support the finding. In effect, Hart contends the judgment releasing the lien was erroneous and should be reversed. If Hart achieves a reversal, Settimi would no longer be a prevailing party entitled to attorney fees under section 8488, subdivision (c) and Hart would achieve his main goal of this appeal—that is, overturning the award of attorney fees.

The merit of Hart’s argument turns on the interpretation and application of subdivision (a) of section 8460, which states in full: “The claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien. If the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.” Hart contends case No. 182636 was “an action to enforce [the] lien” and he filed that lawsuit within 90 days after recording the lien. (§ 8460, subd. (a).)

The term “action” is generally considered synonymous with “suit” and refers to the entire judicial proceeding at least through judgment. (Lafferty v. Wells Fargo Bank, N.A. (2018) 25 Cal.App.5th 398, 414.) It is undisputed that case No. 182636 qualifies as an “action.” Consequently, the critical question is the meaning of the prepositional phrase “to enforce a lien” that modifies the word “action.” (§ 8460, subd. (a).)

The language used in a statute must be construed in context—that is, it must be read in conjunction with the other words of the section and in light of the statutory scheme as a whole. (Merced Irrigation Dist. v. Superior Court (2017) 7 Cal.App.5th 916, 925.) Section 8468, subdivision (a) provides: “This chapter does not affect any of the following rights of a claimant: [¶] (1) The right to maintain a personal action to recover a debt against the person liable, either in a separate action or in an action to enforce a lien. [¶] (2) The right to a writ of attachment .… [¶] (3) The right to enforce a judgment.” (Italics added.) Thus, the statutory scheme for mechanics’ liens clearly identifies “an action to enforce a lien” as being distinct from “a personal action to recover a debt against the person liable.” (§ 8468, subd. (a)(1).) The distinction between “an action to enforce a lien” and “a personal action to recover a debt” raises the question of how to tell the two types of action apart. In resolving this question, we are aided by section 8466, which provides in full:

“If there is a deficiency of proceeds from the sale of property on a judgment for enforcement of a lien, a deficiency judgment may be entered against a party personally liable for the deficiency in the same manner and with the same effect as in an action to foreclose a mortgage.” (Italics added.)

Based on this statutory text, the only reasonable inference is that “an action to enforce a lien” (§ 8460, subd. (a)) is a type of lawsuit that results in a “judgment for enforcement of a lien” and, furthermore, such a judgment leads to “the sale of [the] property” subject to the lien (and the possibility of a deficiency). Thus, “an action to enforce a lien” can be described accurately as an “action to foreclose [a] mechanics’ lien.” (Precision Framing Systems Inc. v. Luzuriaga (2019) 39 Cal.App.5th 457, 460.) A further example of this description is provided by Hub Construction Specialties, Inc. v. Esperanza Charities, Inc. (2016) 244 Cal.App.4th 855, where the court stated the “plaintiff filed a complaint to foreclose the mechanics’ lien” and identified the relief sought as “a judgment for foreclosure of the mechanics’ lien.” (Id. at p. 858.)

Accordingly, we interpret the phrase “an action to enforce a lien” to mean a lawsuit seeking a judgment to enforce the lien—that is, a judgment that directs (1) the sale of the property subject to the lien and (2) the application of the sale proceeds to pay the amount secured by the lien. This interpretation is supported by section 8461, which provides that “[a]fter commencement of an action to enforce a lien, the plaintiff shall record in the office of the county recorder of the county … a notice of the pendency of the action .…” This provision provides potential purchasers with notice that a lawsuit might result in the property being sold to pay off a lien. Such a notice would serve little purpose if “an action to enforce a lien” did not request the sale of the property but simply sought a judgment for the amount claimed.

The next step of our analysis is to apply the foregoing interpretation of the statute to the lawsuit filed by Hart to determine if that lawsuit sought a judgment that would direct the sale of the Property and the application of the sale proceeds to pay the debt secured by the lien. We cannot complete this step of the analysis because the appellate record does not contain a copy of the complaint or any amended complaint Hart filed in case No. 182636.

A fundamental principle of appellate procedure is that the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error justifying reversal of the judgment. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson); Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This general principle of appellate practice is derived from the constitutional doctrine of reversible error. (Jameson, at p. 609; see Cal. Const., art. VI, § 13.) “In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. ‘[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.’ ” (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) Consequently, when the record designated by the appellant is inadequate for meaningful review, it necessarily follows that the appellant has failed to carry his or her burden of demonstrating reversible error. (Jameson, at p. 609.) Stated another way, “[f]ailure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)

Here, Hart has failed to provide an adequate record to decide the issue of whether his lawsuit was one to enforce a lien. Therefore, under the established rules of appellate procedure, the decision of the superior court that case No. 182636 was not an action to enforce the lien must be upheld. Consequently, Settimi remains the prevailing party in the proceeding initiated by her petition and, as the prevailing party, she is entitled to recover reasonable attorney fees and costs pursuant to section 8488, subdivision (c).

II. MOTION FOR SANCTIONS

On October 29, 2019, Settimi filed a motion for sanctions pursuant to California Rules of Court, rule 8.276. The motion asserted that Hart’s appeal was frivolous and taken solely for the purpose of delay. (See Code Civ. Proc., § 907 [frivolous appeal].) The motion sought slightly less than $20,000, which was treble the amount of attorney fees and costs asserted to have been incurred in the appeal.

On November 12, 2019, Hart filed an opposition to Settimi’s motion for sanctions that asserted the motion “is filled with outright falsehoods, fabrications and half-truths.” Hart contended there was no evidence to substantiate the opinion of Settimi’s attorney that the appeal was filed solely to harass and delay Settimi. Hart also contended the evidence submitted did not prove the lien expired and Settimi never supplied any authority using or defining the statutory phrase “an action to enforce a lien.” (§ 8460, subd. (a).) He contends Settimi “is erroneously claiming that [his] timely filed lawsuit No. 182636 was not about the lien even though every detail of the lawsuit was about the money owed concerning why the lien was recorded.” With respect to his heavy reliance on maxims of law from Bouvier’s Law Dictionary, Hart contends reference to this authority was justified because “[m]axims of law are the foundations of law and the bedrock of logic, common sense and reason.” On November 15, 2019, Hart’s opposition to Settimi’s motion for sanctions was stricken pursuant to California Rules of Court, rule 8.276(d).

Here, the respondent’s brief and the motion for sanctions did not present authority directly bearing on the question of statutory interpretation raised by Hart. Although the letter of Settimi’s attorney equated “an action to enforce a lien” with foreclosure, Hart was not provided an explanation of the difference between a personal action to obtain a judgment on a debt and an action to foreclose, which would result in a judgment authorizing the sale of the Property. Consequently, we conclude Hart’s pursuit of this appeal was not frivolous and the motion for sanctions will be denied. We note, however, that the statutory provision allowing the prevailing party to recover reasonable attorney fees entitles a successful litigant to the recovery of reasonable attorney fees incurred in the appeal. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 557 [a statutory authorization for the recovery of attorney fees incurred in trial court proceedings necessarily includes attorney fees incurred on appeal unless the statute provides otherwise]; see Cheema v. L.S. Trucking, Inc. (2019) 39 Cal.App.5th 1142, 1154 [appellate court stated successful appellant could apply to trial court for reasonable attorney fees incurred on appeal]; Cal. Rules of Court, rule 3.1702(c) [attorney fees on appeal].)

DISPOSITION

The judgment is affirmed. Respondent shall recover her costs on appeal, and may apply in the trial court for reasonable attorney fees incurred on appeal. Respondent’s motion for sanctions, filed October 29, 2019, is denied.