# Connolly Development, Inc. v. Superior Court > California Supreme Court · August 31, 1976 · 17 Cal. 3d 803 URL: https://www.frixlaw.com/law-library/cases/9847184 ## Case - **Full name:** CONNOLLY DEVELOPMENT, INC., Et Al., Petitioners, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent; DIAMOND INTERNATIONAL CORPORATION, Real Party in Interest - **Court:** California Supreme Court - **Decided:** August 31, 1976 - **Citations:** 17 Cal. 3d 803; 132 Cal. Rptr. 477; 553 P.2d 637; 1976 Cal. LEXIS 326 - **Precedential status:** Published - **Opinion:** Dissent by Richardson - **Judges:** Tobriner, Richardson - **Cited by:** 96 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9847184 ## How later opinions describe it (automated extraction) - concluding that “the filing of a stop 12 notice, as well as the recording of a mechanics’ lien, deprives the landowner of a 13 significant property interest” ## Opinion text RICHARDSON, J. I respectfully dissent. Neither the California mechanics’ lien law (Civ. Code, § 3109 et seq.) nor the stop notice procedures applicable to private construction (id, § 3156 et seq.) meet the due process requirements of the United States Constitution as recently interpreted by the federal Supreme Court and by us. Both creditor’s remedies fail to afford those minimal protections currently mandated and are, in my view, unconstitutional under the reasoning of federal and state decisions following the important case of Sniadach v. Family Finance Corp. (1969) 395 U.S. 337 [ 23 L.Ed.2d 349 , 89 S.Ct. 1820 ]. The majority make two preliminary concessions as I believe they must. First, they acknowledge that both the recordation of a mechanics’ lien and the filing of a stop notice constitute a “taking” of property. Second, they conclude that both the lien and the stop notice involve “state action” to a degree invoking constitutional review. Accepting the foregoing, however, and at this point we part company, the majority conclude that both procedures meet current due process demands. My principal disagreement focuses on the majority’s insistence that the challenged creditor’s remedies furnish sufficient procedural safeguards under, those applicable decisions of the United States Supreme Court and of this court to which I now turn. As recognized by the majority, the most recent pronouncement of the high court on the due *829 process requirements in this area is North Georgia Finishing Inc. v. Di-Chem, Inc. (1975) 419 U.S. 601 [ 42 L.Ed.2d 751 , 95 S.Ct. 719 ]. North Georgia and our own veiy recent careful analysis in Beaudreau v. Superior Court (1975) 14 Cal.3d 448 [ 121 Cal.Rptr. 585 , 535 P.2d 713 ], in my view, furnish adequate guidance for the proper resolution of this case. North Georgia must be viewed and understood in its historic and developmental context. In 1969 the Supreme Court in Sniadach, supra, struck down a Wisconsin wage garnishment statute which had permitted a creditor without prior hearing to attach, and compel an employer to withhold, one-half of a debtor’s wages pending a court order. The Supreme Court found such summary proceedings invalid save in “extraordinary situations” since, affording neither advance notice nor hearing, they violated due process protections. The trail-blazing implications of Sniadach triggered an important series of cases, both federal and state, in the creditor-debtor field. In 1972 the Supreme Court, addressing Florida and Pennsylvania claim and delivery statutes, spoke again in Fuentes v. Shevin (1972) 407 U.S. 67 [ 32 L.Ed.2d 556 , 92 S.Ct. 1983 ], to the effect that advance notice and a hearing were requisite due process elements before property could be taken. Significantly for our purposes the high court declined in Fuentes to recognize distinctions of grade in the character of the affected property interests, concluding that ''[a]ny significant taking ofproperty by the State is within the purview of the Due Process Clause. While the length and consequent severity of a deprivation may be another factor to weigh in determining the appropriate form of hearing, it is not decisive of the basic right to a prior hearing of some kind.” (P. 86 [32 L.Ed.2d p. 573], italics added.) The Fourteenth Amendment extends its “protection to 'any significant property interest’.” (Ib id, italics added.) California courts quickly caught the Sniadach signal. Thus in 1970 in McCallop v. Carberry (1970) 1 Cal.3d 903 [ 83 Cal.Rptr. 666 , 464 P.2d 122 ], and Cline v. Credit Bureau of Santa Clara Valley (1970) 1 Cal.3d 908 [ 83 Cal.Rptr. 669 , 464 P.2d 125 ], we invalidated on similar due process grounds the California wage garnishment law because the legislation did not provide for notice and prior hearing. (Code Civ. Proc., § 690.11.) The following year in Blair v. Pitchess (1971) 5 Cal.3d 258 [ 96 Cal.Rptr. 42 , 486 P.2d 1242 , 45 A.L.R.3d 1206 ], we declared unconstitutional on similar grounds the statutory claim and delivery procedure. (Code Civ. Proc., §§ 509-521.) This was soon followed by Randone v. *830 Appellate Department (1971) 5 Cal.3d 536 [ 96 Cal.Rptr. 709 , 488 P.2d 13 ], in which we struck down the California attachment statute. (Id, § 537, subd. 1.) Numerous other federal and state cases have followed the trend. By consistent reasoning California courts have either found unconstitutional or substantially limited, as violative of due process standards, such creditor’s remedies as: garageman’s lien (Adams v. Department of Motor Vehicles (1974) 11 Cal.3d 146 [ 113 Cal.Rptr. 145 , 520 P.2d 961 , 64 A.L.R.3d 803 ]); banker’s lien (Kruger v. Wells Fargo Bank (1974) 11 Cal.3d 352 [ 113 Cal.Rptr. 449 , 521 P.2d 441 ]); unlawful detainer (Damazo v. MacIntyre (1972) 26 Cal.App.3d 18 [ 102 Cal.Rptr. 609 ], hg. den.; Gray v. Whitmore (1971) 17 Cal.App.3d 1 [ 94 Cal.Rptr. 904 ], hg. den.); dispossession of realty (Mihans v. Municipal Court (1970) 7 Cal.App.3d 479 [ 87 Cal.Rptr. 17 ]); see also innkeeper’s lien (Klim v. Jones (N.D.Cal. 1970) 315 F.Supp. 109 ; Collins v. Viceroy Hotel Corporation (N.D.Ill. 1972) 338 F.Supp. 390 ); and imprisonment of judgment debtor (Desmond v. Hachey (D.Me. 1970) 315 F.Supp. 328 ). In 1972, the United States Supreme Court in Fuentes seemed to have adopted a strict requirement that when a property right was taken or impaired there must be a prior notice and opportunity to be heard. This more severe and restrictive interpretation was tempered somewhat in 1974 by the high court’s ruling in Mitchell v. W. T. Grant Co. (1974) 416 U.S. 600 [ 40 L.Ed.2d 406 , 94 S.Ct. 1895 ], In Mitchell the court reviewed and upheld a Louisiana sequestration statute which it found significantly different from the replevin statutes of Florida and Pennsylvania invalidated in Fuentes . In Mitchell the affidavit supporting the possessory writ required the vendor-claimant to furnish detailed information regarding his claim, the writ was reviewed and issued by a judge rather than a clerk, the claimant’s possessory right arose from a statutory vendor’s lien giving him possession on default, and the debtor was given an immediate statutorily created /?osi-seizure hearing on the merits of the claim. Thus, the Fuentes preseizure hearing stricture was moderated somewhat by Mitchell while the high court stressed the vital protection afforded by a judge in the exercise of the creditor’s remedy. The Supreme Court’s most recent expression of the due process requirements is North Georgia, in which it held unconstitutional Georgia’s garnishment statute on the expressed grounds that it permitted a taking of the debtor’s property “without . . . opportunity for an early hearing and without participation by a judicial officer.” ( 419 U.S. 601 at p. 606 [ 42 L.Ed.2d at p. 757 ], italics added.) The high tribunal emphasized *831 that under Georgia law the writ of garnishment was issuable “by the court clerk, without participation by a judge,” and “the only method discernible on the face of the statute to dissolve the garnishment was to file a bond to protect the plaintiff creditor.” (Id., at p. 607 [42 L.Ed.2d at pp. 757-758].) The court further observed that “There is no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment. Indeed, it would appear that without the filing of a bond the defendant debtor’s challenge to the garnishment will not be entertained, whatever the grounds may be.” (Ibid, italics added.) Holding that this was entirely unacceptable, the high court expressly distinguished its decision in Mitchell on the grounds that the Louisiana sequestration statute upheld in that case required judicial authorization to issue the writ, and in the court’s words “expressly entitled the debtor to an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor of the grounds on which the writ was issued.” {Ibid., italics added.) Thus in North Georgia, in clear and unmistakable language, the United States Supreme Court faithfully continuing the consistent course inaugurated in Sniadach has held that a taking of property is unconstitutional, even if the taking be temporary in nature, and even if the property may be released by filing a bond, unless the statute contains express provisions for prior judicial authorization and an early post-taking hearing on the merits of the creditor’s claim. While it is true, as the majority note, that in May 1974 the United States Supreme Court summarily, and without opinion, affirmed the case of Spielman-Fond, Inc. v. Hanson’s, Inc., (D.Ariz. 1973) 379 F.Supp. 997 , affirmed (1974) 417 U.S. 901 [ 41 L.Ed.2d 208 , 94 S.Ct. 2596 ], a case which had upheld the constitutionality of a mechanics’ lien law similar to California’s, the Supreme Court’s summary affirmance occurred prior to North Georgia. Accordingly, Spielman-Fond by well established principles has very limited force and is by no means dispositive of the very serious constitutional issue herein presented. As Chief Justice Burger has recently explained, “When we summarily affirm, without opinion, the judgment of a three-judge District Court we affirm the judgment but not necessarily the reasoning by which it was reached. [Fn. omitted.] An unexplicated summary affirmance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument. Indeed, upon fuller consideration of an issue under plenary review, the Court has not *832 hesitated to discard a rule which a line of summary affirmances may appear to have established. [Citations.]” (Fusari v. Steinberg (1975) 419 U.S. 379, 391-392 [ 42 L.Ed.2d 521, 530-531 , 95 S.Ct. 533 ], conc. opn. by Burger, C. J., italics added; see Edelman v. Jordan (1974) 415 U.S. 651, 670-671 [ 39 L.Ed.2d 662, 676-677 , 94 S.Ct. 1347 ] [“Since we deal with a constitutional question, we are less constrained by the principle of stare decisis than we are in other areas of the law.”]; Serrano v. Priest (1971) 5 Cal.3d 584, 616-617 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 , 41 A.L.R.3d 1187 ].) Moreover, it is significant as the majority note that Spielman-Fond was decided prior to the recent decisions of two of our sister states, Connecticut and Maryland, which held the mechanics’ lien laws of those states unconstitutional for reasons substantially identical to those set forth below. (See Barry Properties, Inc. v. Fick Bros. Roofing Co. (1976) 277 Md. 15 [ 353 A.2d 222 ]; Roundhouse Constr. Corp. v. Telesco Masons Supplies Co. (1975) 168 Conn. 371 [ 362 A.2d 778 ].) The courts in these two cases were, of course, aware of the Supreme Court’s summary affirmance of Spielman-Fond. For the foregoing reasons, I suggest that we must measure the constitutionality of the California mechanics’ lien and stop notice laws by the most recent requirements of the Supreme Court in North Georgia, rather than to speculate as to the significance of the high court’s summary affirmance of an earlier proceeding. Of perhaps even greater significance is the fact that following North Georgia, we ourselves in Beaudreau v. Superior Court (1975) 14 Cal.3d 448 [ 121 Cal.Rptr. 585 , 535 P.2d 713 ], reviewed at considerable length the appropriate due process demands when, as here, property is “taken.” The Beaudreau analysis developed, in my view, is fully dispositive of the issue before us, for we carefully considered the essential elements of due process protections as currently mandated. We examined the constitutionality of a statutory scheme whereby plaintiffs suing public entities were required either to file an undertaking for costs, or deposit in court a cash amount in lieu of a bond. We observed initially that a “taking” occurred either by reason of the exaction of a nonrefundable bond premium or the temporary loss of use of the cash deposit. (Pp. 455-456.) We reiterated our prior observation in Brooks v. Small Claims Court (1973) 8 Cal.3d 661, 666 [ 105 Cal.Rptr. 785 , 504 P.2d 1249 ], that the concept of a taking “ \ . . has been held to include even temporary deprivations of property.’ ” (P. 455, italics added.) Then, we explained in definitive terms that, by reason of prior decisions of the United States Supreme Court and this court, “... in every case involving a deprivation of *833 property within the purview of the due process clause, the Constitution requires some form of notice and a hearing. [Citations.] Absent extraordinary circumstances justifying resort to summary procedures, this hearing must take place before an individual is deprived of a significant property interest. [Citations.] The fact that the individual may later recover the property if he prevails at a post-deprivation hearing does not satisfy constitutional requirements. ‘[A] temporary, nonfinal deprivation of property is nonetheless a “deprivation” in the terms of the Fourteenth Amendment, and . . . must, be preceded by a fair hearing.’ [Citation.]” (P. 458, italics added.) Next, in Beaudreau we spoke of the scope and purpose of the required hearing in the following language: “. . . the taking to which a plaintiff is subjected under the above [security bond] statutes must be preceded by a hearing in the particular case in order to determine whether the statutory purpose is promoted by the imposition of the undertaking requirement____ [A] due process hearing would necessarily inquire into the merit of the Plaintiff’s action as well as into the reasonableness of the amount of the undertaking in the light of the defendant’s probable expenses.” (P. 460.) We concluded that the challenged statutes were invalid for failing to provide such a due process hearing. We emphasized that “The statutes before us make no provision for such a hearing.” (P. 460.) As will be developed below, it is noteworthy that we did not attempt to “read into” the statutes a procedure for a probable cause type of hearing. Nor did we suggest that the general declaratory relief or injunction laws offered a satisfactory alternative or substitute for the probable cause hearing required by due process principles. We rejected the contention that the Supreme Court’s decisions in North Georgia and Mitchell represented a significant retreat from the high court’s former position. Finally, lest there be any lingering doubt, in definitive and crystal clear language, we expressed the central constitutional principle extracted from North Georgia which thereafter was to characterize California procedural due process requirements. Our unanimous expression, just a year ago, was that North Georgia “. . . establishes that where state law authorizes one litigant to take the property of his adversary, the due process clause of the United States Constitution at the least requires judicial participation in the initial taking decision and ‘an early hearing’ at which the party imposing the taking demonstrates probable cause to justify it.” (P. 465, italics added.) Our Beaudreau language was plain, simple, and unambiguous, and I believe I am not alone in my interpretation of the foregoing *834 language. (See Comment, 89 Harv.L.Rev. 1006, 1015-1016; Comment, 21 Villanova L.Rev. 282.) Do the California statutory provisions for mechanics’ liens and private stop notices meet the North Georgia and Beaudreau standards of (a) judicial participation in the taking, and (b) an early probable cause hearing? Clearly not. These laws not only fail to meet both requirements, they, in fact, fail to meet either. It is abundantly clear that a mechanics’ lien may be perfected and a private stop notice filed without judicial approval or review of any kind, shape or form. The statutes are absolutely silent on the point. The protection of judicial intervention is not contemplated, required, or allowed. Furthermore, no provision is made for an early hearing at which the debtor may obtain release of the lien on his real property or stop notice upon his construction loan in the event of the failure of the creditor to establish probable cause to support his claim. Rather, the creditor has 90 days from recording the claim of lien to institute his suit to foreclose the mechanics’ lien. (Civ. Code, § 3144.) He also has 90 days following expiration of the lien-recording period within which to file suit to enforce his stop notice claim. (Id., § 3172.) As in North Georgia, the only method discernible on the face of the California statute by which release of either a mechanics’ lien or private stop notice may be obtained is by the filing of a surety bond. (Id., §§3143,3171.) Thus, the present California creditor’s procedures violate each of the essential principles enunciated in North Georgia and reaffirmed by us last year in Beaudreau . The procedural pattern for enforcement of the creditor’s remedies under both Georgia and California statutes is so very similar as to make both persuasive and controlling the Supreme Court’s language in North Georgia. Further, I find it impossible to square the majority reasoning with the express and detailed imperatives of Beaudreau . This discord between the theme expressed by the majority and the clear lessons of North Georgia and Beaudreau arises, I suggest, from the majority’s failure to accept the principle that the demands of procedural due process are so fundamental as to transcend variances in kinds of properties and types of creditors or debtors. While not conceding this lack of harmony, the majority, conducting a search for procedural alternatives, attempt to salvage the California statutes by noting the availability of relief under California’s general injunctive or declaratory relief laws, arguing that resort to them will *835 afford the debtor a substitute right which is the equivalent of the early hearing mandated by North Georgia. This argument must fail for at least two reasons. It runs afoul of a clearly expressed legislative intent and, assuming general injunctive or declaratory relief is available, such relief would be inadequate under North Georgia. As previously indicated both the mechanics’ lien and private stop notice laws on their face disclose an intent to preclude an early post-taking hearing on the merits of the creditor’s claim. On the contrary, the legislation clearly contemplates a summary remedy in which the debtor’s property interest is taken, followed by the initiation and prosecution within 90 days of a lawsuit by the creditor to enforce the lien or stop notice claim; only by posting a bond can the debtor achieve an early release of the lien or stop notice. As noted, the legislation nowhere provides for any probable cause type of hearing. The foregoing procedure in the area of private construction contrasts sharply with the summaiy hearing proceedings available for the enforcement in the public works area of claims on which a stop notice is based. (Civ. Code, §§ 3197-3205.) In the public works sector the claimant, the contractor, and the public entity, may avail themselves of a special early hearing procedure to resolve any conflicts and to determine the propriety of the stop notice. This mandatory hearing is built into the statutes and, in anticipation of North Georgia and Beaudreau , it is a court hearing which must occur within 15 days of demand. This latter statutory procedure would, of course, be at least partially superfluous if, as the majority now contend, such a hearing is available in any event in both private and public sectors through the procedural injection of general injunctive and declaratory relief actions. Thus, the majority thesis contains an inherent internal inconsistency, and violates sound principles of statutory construction. It seems apparent to me that the statutory pattern created by these two creditor’s remedies discloses a legislative intent to differentiate between private and public construction, making available as to stop notices only in the latter those special due process protections afforded by section 3197 et seq. As the general mechanics’ lien laws and stop notice provisions do not apply to public works (Civ. Code, §§ 3109, 3156) so the special judicial hearing protection afforded by Civil Code section 3179 does not apply to private construction. Nor is the foregoing effect altered in any way by the 20-day advance notice requirement for mechanics’ liens (Civ. Code, §§ 3097-3114). The *836 notice simply alerts the debtor that the axe is to fall. It neither stays the axe nor provides a statutory means of doing so. It constitutes neither judicial intervention nor hearing. The majority urge application of a rule that courts “must construe legislation to uphold its validity,” citing Braxton v. Municipal Court (1973) 10 Cal.3d 138, 145 [ 109 Cal.Rptr. 897 , 514 P.2d 697 ], and In re Kay (1970) 1 Cal.3d 930, 942 [ 83 Cal.Rptr. 686 , 464 P.2d 142 ]. This interpretive rule, however, is subject to important qualifications. Both Braxton and Kay recognize that our construction of legislation must be “consistent with the statutory language and purpose” (Kay, at p. 942) and be otherwise “fair and reasonable” (Braxton, at p. 145). In other words, we cannot, in the course of attempting to uphold a statute, adopt a construction which is at odds with the Legislature’s probable intent. For the reasons above expressed, it seems evident that the Legislature in its wisdom did not intend to afford debtors on private construction projects that prompt hearing expressly afforded to debtors who suffer a stop notice in the public sector. Indeed, it is highly significant that while the majority argue that procedural due process requirements are met because a private debtor may obtain a prompt post-taking hearing by means of the general provisions governing injunctions and declaratory relief, they cite no controlling or persuasive precedent which so holds. The two authorities cited by the majority (People v. Paramount Citrus Assn. (1957) 147 Cal.App.2d 399, 413 [ 305 P.2d 135 ]; 2 Witkin, Cal. Procedure (2d ed. 1970) pp. 1515-1516) discuss only the general power of courts to issue mandatory or prohibitory injunctions. They do not pertain at all to the critical question whether such independent relief if sought and obtained constitutes a sufficient substitute for procedural due process. In fact, the court in Paramount (in construing Agr. Code provisions for enforcement of marketing orders) expressed the familiar reasoning that “If it had been the legislative intent to empower a court to make an order which in effect compels specific performance of the obligations imposed by a marketing order, the Legislature would have, by apt language, expressly conferred that power.” (P. 412, italics added.) Similarly, it may be said that had the Legislature in the matter before us intended to provide for a prompt post-taking hearing comparable to the procedure which it had provided for stop notices in the public area, it would, and easily could, have expressly done so, and treated both private and public sectors alike. *837 Further, in my view, it is not without meaning that in North Georgia the Supreme Court emphasized the absence of any express hearing provision in Georgia’s garnishment laws ( 419 U.S. 601 at pp. 606-607 [ 42 L.Ed.2d 751 at pp. 756-758 ]) without suggesting in any manner that Georgia’s general injunctive or declaratory relief laws might cure the glaring constitutional defects. Similarly in Beaudreau, we noted that “the statutory schemes” reviewed by the Supreme Court in Arnett v. Kennedy (1974) 416 U.S. 134, 145 [ 40 L.Ed.2d 15, 28 , 94 S.Ct. 1633 ], and Mitchell v. W. T. Grant Co., supra, 416 U.S. 600 at page 610 [ 40 L.Ed.2d 406 at page 415], provided for hearings. In contrast, the provisions of Government Code sections 947 and 951, before us in Beaudreau did not so provide. Significantly, we did not attempt to support the offending statute by resort to the general injunctive or declaratory relief laws to which the majority now tenaciously cling. Even, however, were we to assume that general injunctive or declaratory relief laws furnished the debtor with an alternative to an express hearing, these remedies would be wholly inadequate substitutes for the unqualified right to an early hearing guaranteed by due process principles. First, in order to obtain any immediate relief under these general laws, the debtor is required to hire an attorney, prepare, file and serve a civil complaint, issue and serve summons, obtain and post an injunction bond (Code Civ. Proc., § 529) and cause to be issued and served the requisite restraining order or order to show cause, the latter procedures substantially equivalent to the release-of-garnishment condemned in North Georgia. In addition to his attorney’s fees the debtor must pay the filing fees and the premium for the bond. As indicated above, in Beaudreau we invalidated a like bond requirement on the basis that it constituted a taking of property without a prompt post-taking hearing. Second, as we recently observed in Adams v. Department of Motor Vehicles, supra, 11 Cal.3d 146, 156 , involving a garageman’s lien, the availability of precisely the same injunctive or declaratory relief to discharge a possessory lien was held by us to be an inadequate remedy in view of the lack of assurance that a speedy hearing will in fact take place. We used the following significant language in Adams , “California law does not provide for accelerated hearing of contested lien claims, and only by resort to temporary restraining orders and injunctions could sale and transfer [of the automobile] be halted pending adjudication, at least if events take their ordinary course. Since temporary injunction is an extraordinary remedy and is thus discretionary [citation], it lacks the certainty necessary to insure a hearing prior to permanent deprivation.” *838 (P. 156, italics added.) Although, theoretically, no “permanent deprivation” of the property owner’s interests can occur until the mechanic’s lienholder proves his claim (ante, p. 822), the consequences of exercise of the creditor’s remedy from a due process standpoint are serious, property is taken, and in terms of its effect on the debtor the lien in the words of the majority “may severely hamper his ability to sell or encumber that property” (ante, p. 812). As to the stop notice even a slight delay in releasing frozen construction funds can destroy the project and result in the debtor’s loss of his property (ante, p. 813). The severe and adverse consequences of the challenged laws upon debtors, and the lack of adequate procedural safeguards have not gone unnoticed by the academic commentators. Two recent analyses, measuring the questioned procedures against current constitutional imperatives, have concluded that mechanics’ lien laws generally (Comment, The Constitutional Validity of Mechanics’ Liens Under the Due Process Clause—A Reexamination after Mitchell and North Georgia (1975) 55 B.U.L.Rev. 263, 286-287) and California’s private stop notice law in particular (Note, California’s Private Stop Notice Law: Due Process Requirements (1974) 25 Hastings L.J. 1043 , 1073, 1074) fail to pass due process scrutiny and are, accordingly, unconstitutional. In determining whether the mechanics’ lien and private stop notice remedies can survive constitutional attack, the majority stress that we are to identify, balance, and accommodate the competing interests, the purpose of which, as the majority envision it, as to mechanics’ liens, is to determine whether the result represents “a significant deprivation.” It is difficult to determine precisely how the majority conceive or characterize the effect on the debtor of the creditor’s remedy. They reject the thought that the effect on the debtor is “de minimis” (ante, pp. 812, 813), and are forced to acknowledge that as to the lien, “it may severely hamper his ability to sell or encumber that property,” and that as to the stop notice the debtor’’may be forced into default” and “consequently lose his property” (ante,,p. 813), thereby resulting in the taking of a “significant property interest” (ante, p. 814). Nonetheless, this significant taking when weighed in the hands of the majority is determined by them to be “of relatively minor effect” since the mechanics’ lien denies neither possession nor use to the debtor, and the stop notice “attaches only to a limited line of credit.” Thus, while the majority’s precise placement of the debtor’s property interests is uncertain, it may be fixed roughly, by a *839 process of semantic triangulation, past “de minimus,” and at once—“significant” and “relatively minor.” With all due deference, I suggest there is an aura of complete unreality about the suggestion that imposition on a debtor’s property of a mechanics’ lien, or the placing of a stop notice on his construction loan, has a “relatively minor” effect. Quite to the contrary, a mechanics’ lien most certainly intrudes, and in a major way, upon his incidents of ownership. Following imposition of the mechanics’ lien, the debtor may enjoy his fireplace but he may not sell his home. He may tend his garden, but he may not borrow on his property. His title is clouded and although his occupancy is permitted, two very fundamental rights of sale at full cash value and hypothecation are instantly impaired and restricted. As the majority concede, imposition of the mechanics’ lien “may severely hamper his ability to sell or encumber” his residence. (Ante, p. 812.) To the average debtor whose home is usually his principal asset, this constitutes no small cloud on his financial horizon but a serious and real impairment to him, his family and his life savings. There is nothing “minor” about its impact. Exercise by the creditor of the mechanics’ lien remedy poses a threat pointed directly at the vitals of the debtor’s economic independence. This is not imaginary but real and its effect is immediate. The same may be said of a stop notice. The debtor, be he homeowner or owner of a business, having negotiated a construction or home improvement loan may, upon the creditor’s exercise of the stop notice remedy, frequently, if not usually, find himself in midconstruction with work halted, his property encumbered with debt and an uncompleted building or residence. The attendant delay, expense, and uncertainty are by no means minimal. They are equally threatening. The majority concede as much by acknowledging that the filing of a stop notice is a “form of garnishment, a form of seizure that Randone v. Appellate Department, supra, 5 Cal.3d 536 , 552 held a ‘taking’ of property.” (Ante, p. 813.) As the majority concede, the debtor “may be forced into default on the loan, and consequently lose his property.” (Ante, p. 813.) This is not “minor.” These important effects occur not alone in a commercial setting. Their weight falls most heavily on the small homeowner and the import of the creditor’s action upon him far from being minimal is very serious indeed. The majority place principal emphasis on the claim that in the case of a mechanics’ lien or materialman’s lien, the laborer and materialman *840 have acquired an “interest” in the property since their work and materials have enhanced the value of that property. Moreover, the majority contend, in the case of the private stop notice, that although the laborer or materialman has not directly enhanced the value of the loan fund, nevertheless by enhancing the value of the realty, they have increased the value of the security of the loan fund. These considerations, it is urged, justify enfolding laborers and materialmen within a “protective policy” which gives them a more preferred status in the constitutional debate. The argument, reduced to its essentials, is that the more direct and valuable the creditor’s contribution to the property, the more elevated his constitutional position and the lesser the degree of the procedural due process afforded the debtor. Through this reasoning the judicial scales become, conceptually, a constitutional “teeter totter,” by which the higher the creditor is lifted at his end of the legal seesaw, the lower becomes the due process protections extended to the debtor. I cannot agree. Preliminarily, it may be noted the majority’s principal thesis, that the laborer or materialman has “acquired an interest” in the property by enhancing its value, assumes a fact which is “not in evidence.” On close examination it will be seen that the majority decide, ipse dixit, the very issue which the due process hearing is intended to resolve. In almost all disputes of this nature, the creditor alleges improvement of the property and the debtor alleges that the creditor has failed to perform in a satisfactory manner the work contracted for; thus, the dispute, and the necessity for the hearing, the precise purpose of which is to decide whether or not, and to what extent, the value of the property really has been enhanced. Yet the majority assume the conclusion that there has been an enhancement, thereby depriving the debtor through a prompt, post-taking hearing, constitutionally required, of the opportunity of showing that no improvement has occurred or that if it does it is of substantially lessened value. Thus the hearing required to establish the nature, if any, of the benefit, enhancement, or improvement is circumvented because the creditor has “improved” the property. In short, the principal reliance of the majority is based upon a factual premise which cannot be established without the very hearing, which the majority flatly deny to the debtor-owner. Thus a conclusive presumption of improvement is created thereby obviating a hearing. I respectfully suggest that such an effect is unconstitutional and the reasoning by which it is reached is circular and illogical. *841 Moreover, it is evident that the laborer’s or materialman’s “interest” in the subject property does not justify dispensing with the debtor’s due process protection of (1) prior judicial participation and (2) early post-taking hearing. In Mitchell v. W. T. Grant Co., supra, 416 U.S. 600 , the claimant-vendor likewise had an interest in the lien property vis-a-vis the buyer. As the Supreme Court noted in Mitchell , “The reality is that both seller and buyer had current, real interests in the property . . . .” (P. 604 [40 L.Ed.2d pp. 411-412].) Yet, in accommodating those interests, the Supreme Court in Mitchell upheld the challenged sequestration law only because that law provided, first, for judicial participation in the issuance of the writ, and second, for an immediate post-seizure hearing on the merits of the claim. Surely a laborer’s or materialman’s interest in the liened property entitles him to no greater preference or protection than that accorded the vendor-owner claimant in Mitchell . The majority rely upon Beaudreau v. Superior Court, supra, 14 Cal.3d 448 , for their major premise that, when competing interests of creditor and debtor are involved, resolution of the due process issue requires an accommodation of those interests. As an abstract proposition, we generally weigh the competing interests of the parties in determining which should prevail. In the context of due process, however, Beaudreau expressly recognizes that the due process clause “.. . at the least requires judicial participation in the initial taking decision and ‘an early hearing’ at which the party imposing the taking demonstrates probable cause to justify it.” (P. 465, italics added.) Under the constitutional limits as defined in Beaudreau, Mitchell and North Georgia, these fundamental minimum due process protections cannot be “balanced” out of existence in attempting to “accommodate” the respective interests of the parties. In this sense, the fundamental elements of procedural due process are not negotiable for the critical elements of a significant taking of property are present. The majority rely upon Adams v. Department of Motor Vehicles, supra, 11 Cal.3d 146 , for the general proposition that the propriety of weighing the competing interests of debtor and creditor must be recognized in resolving due process questions. It is significant, however, that as explained in Adams since the garageman-creditor in that case had already obtained the right to possession of the automobile when he asserted his lien, and no further assistance from state officials was required to retain possession of the vehicle, it would constitute a violation of the garageman’s due process rights to deprive him of his *842 possessory lien. (Pp. 154-155.) The challenged mechanics’, lien and stop notice laws before us do not, of course, involve such possessory liens. It is contended that a . . state policy strongly supports the preservation of laws which give the laborer and materialman security for their claims.” (Ante, at p. 827.) They then consider the “social effect” of the liens measured against the detriment occasioned to the debtor, determine that “[t]he balance tips in favor of the worker and material-man,” and hold that, accordingly, the “safeguards” afforded the debtor meet due process demands. (Ante, at pp. 827, 828.) I find no support whatever in North Georgia for the kind of preference that is proposed by the majority based either on the nature of the creditor’s claim or the character of the property affected or any “social effect” thereby occasioned. Indeed, a similar argument was made, and flatly rejected, in North Georgia itself. There, respondent argued for similar preferential treatment urging that a different standard should be employed in measuring the validity of laws directed against corporate bank accounts as compared with those affecting householders and other “victims of contracts of adhesion.” The Supreme Court rejected the proposed distinction because “... the probability of irreparable injury... is sufficiently great so that some procedures are necessary to guard against the risk of initial error. We are no more inclined now than we have been in the past to distinguish among different kinds of property in applying the Due Process Clause.” ( 419 U.S. 601, at p. 608 [ 42 L.Ed.2d 751, at p. 758 ], italics added.) The fact that the mechanics’ and materialman’s lien laws are of ancient origin and acceptance makes, in my view, all the more significant the fact that, to my knowledge, not once has it been asserted, much less held until now, that artisans and materialmen held a special, favored, or preferred creditor status in a constitutional sense, reducing thereby to a “minimal” character the due process safeguards extended to debtors. Beginning with Sniadach , the only recognized exception to the requirements of notice, hearing, and judicial interposition, has been the relatively rare instance of an “extraordinary situation requiring special protection of a state or creditor interest.” No demonstrated “extraordinary situation” appears herein. As expressed in the Note, California’s Private Stop Notice Law: Due Process Requirements, supra, 25 Hastings L.J., at page 1070, courts have recognized three kinds of extraordinary *843 circumstances: “[WJhen the public is in great physical or financial danger, when there is a significant risk that a criminal defendant will abscond, and when a civil defendant will escape the effects of a potential adverse judgment unless his property is seized immediately.” In my view, none of these narrowly conceived exceptions applies to the mechanics’ lien or stop notice situation. The well accepted principles of preference extended mechanics, artisans, and materialmen, recognized both in the Constitution and by statute, permit priorities vis-a-vis other creditors. They cannot, however, impair or dilute the fundamental procedural due process protections afforded debtors by the Fifth and Fourteenth Amendments to the federal Constitution, and article I, section 13, of the California Constitution. The debtor’s property remains an appropriate target for the creditor, but it may be reached only through constitutionally permissible methods affording the debtor the twin protections of judicial intervention and early hearing. In summary, in an important series of cases following Sniadach a number of creditor’s remedies have been invalidated on due process grounds. The underlying reasoning of these cases is equally applicable to the California mechanics’ lien and stop notice legislation which demonstrably lack those procedural safeguards required by North Georgia and Beaudreau , the most recent expressions of due process principles in this area. We ourselves have described the Sniadach holding as “not a rivulet of wage garnishment but part of the mainstream of the past procedural due process decisions of the United States Supreme Court.” (Randone v. Appellate Department, supra, 5 Cal.3d 536, at p. 550 , italics added.) To this I stress the importance of a metaphorical extension—this broad flood of Fourteenth Amendment protections and safeguards is diverted or broken by no islands of special privilege or immunity that rise above its constitutionally cleansing wash. Due process principles demand even-handed, impartial, and consistent application. The constitutional sword cuts both ways. Its sweep recognizes no preferences. The wage earner under Randone is the beneficiary of full procedural due process protection before his wages are attached. When, however, as a creditor in turn he asserts his own lien or private stop notice claim he may not be heard to complain if similar protections are afforded to a debtor substantially affected by his claim. Both the burdens and blessings of those fundamental constitutional guarantees apply not to some but to all. They do not admit of partial application, or bending of principle. For us to conclude otherwise, it *844 seems to me, is to accept a form of selective due process which is unfair, illogical, arbitrary and dangerous. Because they lack provision for judicial participation and an early hearing, I think the California laws concerning both mechanics’ liens and private stop notices are unconstitutional in their present form and would so hold. McComb, J., and Clark, J., concurred. On September 29, 1976, the opinion was modified to read as printed above. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9847184. Public record. Not legal advice.