Fontana Paving, Inc. v. Knecht, Garrison & Tait Associates, Inc.

Appeal from a judgment of dismissal.

On February 16, 1961, appellant filed a complaint to foreclose a mechanic’s lien. The memorandum for setting was filed in July 1963. On November 6, 1963, the trial court granted respondents’ motion under Code of Civil Procedure, section 1198.1 to dismiss the proceeding and this appeal followed.

The issue: whether the trial court abused its discretion in dismissing the action.

Appellant contends that there was an abuse of discretion, stating that “The theory behind section 1198.1 of the Code of Civil Procedure and the case of Hayward Lumber & Inv. Co. v. Greenwalt (1932) 215 Cal. 655 [ 12 P.2d 445 ], relied upon by the respondents in the Trial Court, is that title of the property of an owner should not be clouded for an undue period of time.’’ And further: ‘ Subsequent to the enactment of Section 1198.1(a) and the decision in Hayward Lumber & Inv. Co. v. Greenwalt , to wit, in 1957, the legislature added Section 1193.2 and amended the same in 1959, which section provides a means whereby an owner and others may relieve themselves of the effect of the lien on real property by recording an appropriate release bond in the county recorder’s office…