Monterey S.P. Partnership v. W. L. Bangham, Inc.

MOSK, J.

I concur in the judgment and in the court’s opinion. Under existing law the conclusion reached therein is inevitable.

I am concerned, however, with the practical result. The requirement that the holder of the mechanic’s lien must serve the beneficiaries appears to be unduly onerous in circumstances such as those involved in this case in which there are 252 beneficiaries.

Is it reasonable to expect a holder of a mechanic’s lien—e.g., a plumber, electrician, carpenter or artisan who performed labor or furnished material on premises—to locate and obtain personal service on beneficiaries of a deed of trust on the property when they are 252 in number? To ask the question is to answer it.

The majority suggest that service by publication, service on the beneficiaries’ attorney-in-fact, or a class action lawsuit would adequately resolve the problem. (Ante, p. 461, fn. 4.) However, none of these alternatives, standing alone, is sufficient to ameliorate the considerable obstacles inherent in trying to properly serve so many beneficiaries.

The majority declare that service by publication may be one possible solution. It is true that Code of Civil Procedure section 415.50 provides for publication. But it is hedged with numerous qualifications that make it extremely difficult to employ.

For example, the Judicial Council comment to the section observes that before resort to publication may be permitted, reasonable diligence must be exercised by plaintiff “to learn defendant’s whereabouts or his address by inquiry of relatives, friends, and acquaintances, or of his employer, and by investigation of appropriate city and telephone directories, the voters’ regis *465 ter, and the real and personal property index in the assessor’s office, near the defendant’s last known location . . . .”

Thereafter an affidavit must be filed detailing the “thorough search to locate the defendant, including the dates thereof and any attempts to serve the defendant by another method of service . . . In the instant case, the mechanic’s lienholder would be required to describe his efforts as to each of the 252 beneficiaries.

A casual effort would not be adequate. Numerous cases have held that the requisites for service by publication must be strictly construed. (See, e.g., Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 334 [ 150 Cal.Rptr. 855 ]; Harris v. Cavasso (1977) 68 Cal.App.3d 723 [ 137 Cal.Rptr. 410 ]; Bank of America v. Carr (1956) 138 Cal.App.2d 727, 737 [ 292 P.2d 587 ]; Weisfeld v. Superior Court (1952) 110 Cal.App.2d 148, 151 [ 242 P.2d 29 ].)

Similarly, service on the beneficiaries’ designated attorney-in-fact would not necessarily solve the problem. Without express authorization, an attorney does not have the implied authority to become an agent for service of process. (Wilson v. Eddy (1969) 2 Cal.App.3d 613, 618 [ 82 Cal.Rptr. 826 ].) Instead, the trial court must determine in each case whether the relationship between an attorney and his client is sufficiently close and enduring to make it highly probable that service on the attorney will provide actual notice to his client. (Code Civ. Proc., § 416.90, Judicial Council comment; Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1017 [ 112 Cal.Rptr. 71 ].) In the absence of such a finding, the plaintiff in an action to foreclose a mechanic’s lien would still be required to personally serve each beneficiary.

Finally, although a class action may eliminate some of the difficulties presented by a case in which there are multiple beneficiaries, there will still be significant notice problems. Even if the court were to permit a class action in a foreclosure action, it may nevertheless order the plaintiff to notify all of the members of the class. In a class action the trial court has the discretion to specify the appropriate form of notice. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454 [ 115 Cal.Rptr. 797 , 525 P.2d 701 , 76 A.L.R.3d 1223 ]; McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450-451 [ 131 Cal.Rptr. 482 ].) In an action to foreclose a mechanic’s lien all of the beneficiaries under a deed of trust are easily ascertainable, thus the trial court could require the plaintiff to notify each member of the defendant-class by registered mail or some other, similar method. (See Chance v. Superior Court (1962) 58 Cal.2d 275, 290 [ 23 Cal.Rptr. 761 , 373 P.2d 849 ] [notice by registered mail required in a class action to foreclose a deed of *466 trust with multiple beneficiaries].) Such a ruling would still place a burden on the plaintifif to discover the addresses of hundreds of beneficiaries.

In short, there are instances when the law and justice are not fully synchronized. To require a mechanic, in order to obtain money due for labor performed or material furnished, to serve 252 beneficiaries, or to undertake onerous efforts to ascertain each beneficiary’s address or their attorney-in-fact appears to be one such instance. I would hope the Legislature gives consideration to this problem: it is, after all, required by the Constitution to provide “for the speedy and efficient enforcement of such liens.” (Cal. Const., art. XIV, § 3.) 1

Kaufman, J., concurred.

As a suggestion: perhaps when there are more than a specified number of beneficiaries, they should be required to name an agent for service of process, or else the mechanic could be permitted to serve notice by publication. (See, e.g., Civ. Code, § 2924b, subd. (d).) Or there may be other viable solutions.