3046. One who sells real property has a vendor's lien thereon,
independent of possession, for so much of the price as remains unpaid
and unsecured otherwise than by the personal obligation of the
buyer.
3047. Where a buyer of real property gives to the seller a written
contract for payment of all or part of the price, an absolute
transfer of such contract by the seller waives his lien to the extent
of the sum payable under the contract, but a transfer of such
contract in trust to pay debts, and return the surplus, is not a
waiver of the lien.
3048. The liens defined in Sections 3046 and 3050 are valid against
every one claiming under the debtor, except a purchaser or
incumbrancer in good faith and for value.
3050. One who pays to the owner any part of the price of real
property, under an agreement for the sale thereof, has a special lien
upon the property, independent of possession, for such part of the
amount paid as he may be entitled to recover back, in case of a
failure of consideration.
3051. Every person who, while lawfully in possession of an article
of personal property, renders any service to the owner thereof, by
labor or skill, employed for the protection, improvement,
safekeeping, or carriage thereof, has a special lien thereon,
dependent on possession, for the compensation, if any, which is due
to him from the owner for such service; a person who makes, alters,
or repairs any article of personal property, at the request of the
owner, or legal possessor of the property, has a lien on the same for
his reasonable charges for the balance due for such work done and
materials furnished, and may retain possession of the same until the
charges are paid; and foundry proprietors and persons conducting a
foundry business, have a lien, dependent on possession, upon all
patterns in their hands belonging to a customer, for the balance due
them from such customers for foundry work; and plastic fabricators
and persons conducting a plastic fabricating business, have a lien,
dependent on possession, upon all patterns and molds in their hands
belonging to a customer, for the balance due them from such customer
for plastic fabrication work; and laundry proprietors and persons
conducting a laundry business, and drycleaning establishment
proprietors and persons conducting a drycleaning establishment, have
a general lien, dependent on possession, upon all personal property
in their hands belonging to a customer, for the balance due them from
such customer for laundry work, and for the balance due them from
such customers for drycleaning work, but nothing in this section
shall be construed to confer a lien in favor of a wholesale
drycleaner on materials received from a drycleaning establishment
proprietor or a person conducting a drycleaning establishment; and
veterinary proprietors and veterinary surgeons shall have a lien
dependent on possession, for their compensation in caring for,
boarding, feeding, and medical treatment of animals.
This section shall have no application to any vessel, as defined
in Section 21 of the Harbors and Navigation Code, to any vehicle, as
defined in Section 670 of the Vehicle Code, which is subject to
registration pursuant to that code, to any manufactured home, as
defined in Section 18007 of the Health and Safety Code, to any
mobilehome, as defined in Section 18008 of the Health and Safety
Code, or to any commercial coach, as defined in Section 18001.8 of
the Health and Safety Code, whether or not the manufactured home,
mobilehome, or commercial coach is subject to registration under the
Health and Safety Code.
3051a. That portion of any lien, as provided for in the next
preceding section, in excess of three hundred dollars ($300) for any
work, services, or care, or in excess of two hundred dollars ($200)
for any safekeeping, rendered or performed at the request of any
person other than the holder of the legal title, shall be invalid,
unless prior to commencing any such work, service, care, or
safekeeping, the person claiming such lien shall give actual notice
in writing either by personal service or by registered letter
addressed to the holder of the legal title to such property, if
known.
3051.5. (a) A carrier has a lien on freight in its possession for
the total amount owed the carrier by the shipper for freightage,
charges for services and advances due on freight previously delivered
upon the promise of the shipper to pay freightage, charges and
advances, as provided in this section.
(b) The lien provided by this section shall not arise:
(1) Unless the carrier has notified the shipper, in writing, that
failure to pay billed charges may result in a lien on future
shipments, including the cost of storage and appropriate security for
the subsequent shipment held pursuant to this section.
(2) As to any freight which consists of perishable goods.
(c) Except as otherwise provided in this section, the notice and
sale provisions of Section 3052 shall apply to the sale of property
subject to a lien provided by this section.
(d) No sale of property subject to a lien provided by this section
may take place for at least 35 days from the date that possession of
the property is delivered to the carrier but the notice period set
forth in Section 3052 may run concurrently with the 35-day period
provided by this subdivision. In addition to the notices required by
Section 3052, the lienholder, at least 10 days prior to any sale of
the property, shall notify the shipper and the consignee of the
property, and each secured party having a perfected security interest
in the property, of the date, time and place of the intended sale.
This notice shall include the names of both the shipper and the
consignee and shall describe the property to be sold.
(e) Any perfected security interest in the property is prior to
the lien provided by this section. No sale of the property may be
concluded if the amount bid at the sale is not at least equal to the
total amount of all outstanding obligations secured by a perfected
security interest in the property. If the minimum bid required for
the sale of property pursuant to this subdivision is not received,
the lienholder shall promptly release the property to the legal owner
upon payment of the current amount for freightage, charges for
services and advances due for shipment of that property, not
including amounts due on freight previously delivered.
The proceeds of the sale shall be applied as follows:
(1) First, to secured parties having a perfected security
interest, in the amounts to which they are respectively entitled.
(2) Second, to the discharge of the lien provided by this section
and the costs of storage, appropriate security, and of the sale.
(3) The remainder, if any, to the legal owner of the property.
In the event of any violation by the lienholder of any provision
of this subdivision the lienholder shall be liable to any secured
party for all damages sustained by the secured party as a result
thereof plus all expenses reasonably and necessarily incurred in the
enforcement of the secured party's rights, including reasonable
attorney's fees and costs of suit.
(f) The shipper shall be liable to the consignee for any damage
which results from the failure of the property to reach the consignee
as scheduled due to the carrier's proper exercise of its lien rights
pursuant to this section. The measure of damages shall be determined
as set forth in Section 2713 of the Commercial Code.
3051.6. (a) Except as provided in subdivision (b), a carrier has a
lien on freight in its possession for the total amount owed to the
carrier by the owner or beneficial owner of the cargo being shipped
for the aggregate amount of any fines, penalties, costs, expenses, or
interest incurred by the carrier resulting from the inclusion of
false or erroneous information as to gross cargo weight in a written
or electronic certification provided by the owner, beneficial owner,
or person responsible for making the certification pursuant to
Section 508 of Title 49 of the United States Code.
(b) This section does not apply to any of the following freight:
(1) Perishable goods.
(2) Freight shipped by a means involving other than intermodal
transportation, as that term is defined by Section 508 of Title 49 of
the United States Code.
(3) Freight shipped by loaded containers or trailers having a
gross projected cargo weight, including packing material and pallets,
of less than 10,000 pounds.
(c) Any sale to foreclose a lien specified in this section shall
be conducted in accordance with Section 3052, except that (1) the
lien sale shall not take place for at least 35 days from the date
that possession of the property is delivered to the carrier, but the
notice period specified in Section 3052 may run concurrently with
this 35-day period and (2), in addition to the notices required by
Section 3052, at least 10 days prior to the sale of the property the
lienholder shall notify the shipper and consignee of the property of
the date, time, and place of the intended sale. This notice shall
contain the names of the shipper and consignee and shall generally
describe the property to be sold.
3052. If the person entitled to the lien provided in Section 3051
is not paid the amount due, and for which such lien is given, within
10 days after the same shall have become due, then such lienholder
may proceed to sell such property, or so much thereof as may be
necessary to satisfy such lien and costs of sale at public auction,
and by giving at least 10 days' but not more than 20 days' previous
notice of such sale by advertising in some newspaper published in the
county in which such property is situated; or if there be no
newspaper printed in such county, then by posting notice of sale in
three of the most public places in the town and at the place where
such property is to be sold, for 10 days previous to the date of the
sale; provided, however, that within 20 days after such sale, the
legal owner may redeem any such property so sold to satisfy such lien
upon the payment of the amount thereof, all costs and expenses of
such sale, together with interest on such sum at the rate of 12
percent per annum from the due date thereof or the date when the same
were advanced until the repayment. The proceeds of the sale must be
applied to the discharge of the lien and the cost of keeping and
selling the property; the remainder, if any, must be paid over to the
legal owner thereof.
3052a. Every person, firm, or corporation, engaged in performing
work upon any watch, clock or jewelry, for a price, shall have a lien
upon the watch, clock, or jewelry for the amount of any account that
may be due for the work done thereon. The lien shall also include
the value or agreed price, if any, of all materials furnished by the
lienholder in connection with the work. If any account for work done
or materials furnished shall remain unpaid for one year after
completing the work, the lienholder may, upon 30 days notice in
writing to the owner, specifying the amount due, and informing him
that the payment of the amount due within 30 days will entitle him to
redeem the property, sell any such article or articles at public or
bona fide private sale to satisfy the account. The proceeds of the
sale, after paying the expenses thereof, shall first be applied to
liquidate the indebtedness secured by the lien and the balance, if
any, shall be paid over to the owner.
The notice may be served by registered mail with return receipt
demanded, directed to the owner's last known address, or, if the
owner or his address be unknown, it may be posted in two public
places in the town or city where the property is located. Nothing
herein contained shall be construed as preventing the lienholder from
waiving the lien herein provided for suing upon the amount if he
elects to do so.
3052b. (a) The procedure in this section shall be an alternative to
the lien-sale procedure provided in Section 3052, but applies only
to liens under Section 3051 for charges not exceeding one hundred
fifty dollars ($150), exclusive of additional charges and interest
authorized by this section. As a condition precedent to using the
procedure specified in this section, the lienholder shall have done
all of the following:
(1) Provided the property owner with an accurate written summary
of the lien provisions of this section.
(2) Obtained the property owner's address and telephone number,
together with a written declaration signed by the property owner
stating that the property owner has read and understands the summary
provided pursuant to paragraph (1), at the time of entering into the
transaction from which the lien arose.
(3) Posted, at the time of the transaction from which the lien
arose, a notice which fully and fairly informs the public of the
substance of this section. The notice shall be posted in a location
clearly visible to the public in the lienholder's business premises.
(b) Any lienholder proceeding under this section shall notify the
owner of the property subject to the lien upon completion of the work
for which the lien is claimed. This notice shall be by first-class
mail.
(c) If a property owner who has actually received notice pursuant
to subdivision (b) fails to pay the charges for which the lien is
claimed for 30 days following receipt of the notice, the lienholder
may thereafter charge two dollars ($2) per day for storing the
property subject to the lien and these charges shall also be secured
by the lien.
(d) Not less than 30 days following the notice specified in
subdivision (b), the lienholder shall notify the property owner by
first-class mail that the property will be sold to satisfy the lien,
unless the charges are paid within 30 days following the mailing of
the notice.
(e) If the lienholder has complied with the notice requirements of
subdivisions (b) and (d), not less than 30 days have elapsed since
the mailing of the notice required by subdivision (d), and the
property owner has not fully paid the original charges for which the
lien is claimed plus any additional charges authorized by subdivision
(c), the lienholder may sell the property subject to the lien at a
public or bona fide private sale to satisfy the sum of those
obligations, all costs and expenses of the sale, and interest at the
rate of 12 percent per annum from 30 days following receipt of the
notice specified in subdivision (b) or the date the same were
advanced until repayment.
(f) However, the owner of the property sold pursuant to
subdivision (e) may redeem the property sold to satisfy the lien,
within 20 days following the sale, upon payment of all charges, costs
and expenses, and interest specified in subdivision (e).
(g) The proceeds of the sale shall first be applied to the
discharge of the lien, the costs of sale, and interest specified in
subdivision (e). The remainder, if any, shall be paid to the former
owner of the property so sold.
3052.5. (a) Sections 3052 and 3052b shall not apply to any service
dealer registered with the Bureau of Repair Services pursuant to
Chapter 20 (commencing with Section 9800) of Division 3 of the
Business and Professions Code if the dealer reasonably believes that
the serviced product is of nominal value. For purposes of this
section, nominal value shall be ascertained as follows: the product
is not readily salable for more than the legitimate charges against
it, and either the original retail value of the product was under two
hundred dollars ($200) and the product is over three years old, or
the original retail value is over two hundred dollars ($200) and the
product is over six years old.
Service dealers may use any available materials or information,
including, but not limited to, industry publications, code dates,
sales records, or receipts to assist in determining value and age of
the serviced product.
(b) A service dealer may select one of the following alternative
methods for the disposal of unclaimed serviced products determined to
have a value as specified in subdivision (a):
(1) The service dealer may provide the owner of the product with
the following written notice to be mailed following completion of
work on the serviced product:
DATE BROUGHT
IN_______________________________________________
DATE
MAILED___________________________________________
DATE PRODUCT TO BE SOLD IF NOT
CLAIMED
_________________________________________________
NOTICE: YOUR PRODUCT HAS BEEN DETERMINED BY THIS SERVICE DEALER TO
BE ONE WHICH WAS EITHER ORIGINALLY SOLD FOR LESS THAN $200 AND IS NOW
OVER THREE YEARS OLD OR ONE WHICH WAS ORIGINALLY SOLD FOR MORE THAN
$200 AND WHICH IS NOW OVER SIX YEARS OLD AND THE CHARGES FOR
SERVICING YOUR PRODUCT WILL EXCEED ITS CURRENT VALUE. UNDER
CALIFORNIA CIVIL CODE SECTION 3052.5(a) IF YOU OR YOUR AGENT FAIL TO
CLAIM YOUR PRODUCT WITHIN 90 DAYS AFTER THE DEALER MAILS A COPY OF
THIS NOTICE TO YOU IT MAY BE SOLD OR OTHERWISE DISPOSED OF BY HIM OR
HER.
The notice shall be sent by certified mail, return receipt
requested. A serviced product may be disposed of 90 days after the
date of deliverance evidenced by the signature in the returned
receipt.
(2) The service dealer may publish public notice of the intended
sale in a newspaper of general circulation. The notice shall contain
a description of the serviced product, the name of the serviced
product owner, and the time by which and place where the product may
be redeemed. The notice shall be published for a minimum of five
times. A serviced product may be disposed of 90 days after the last
date of publication.
(3) A service dealer may, upon receipt of any product to be
serviced by him or her, provide the owner of the product with the
following notice, written in at least 10-point boldface type:
DATE BROUGHT
IN_______________________________________________
DATE
MAILED___________________________________________
DATE PRODUCT TO BE SOLD IF NOT
CLAIMED
_________________________________________________
NOTICE: YOUR PRODUCT HAS BEEN DETERMINED BY THIS SERVICE DEALER TO
BE ONE WHICH WAS EITHER ORIGINALLY SOLD FOR LESS THAN $200 AND IS NOW
OVER THREE YEARS OLD OR ONE WHICH WAS ORIGINALLY SOLD FOR MORE THAN
$200 AND WHICH IS NOW OVER SIX YEARS OLD AND THE CHARGES FOR
SERVICING YOUR PRODUCT WILL EXCEED ITS CURRENT VALUE. UNDER
CALIFORNIA CIVIL CODE SECTION 3052.5(a) IF YOU OR YOUR AGENT FAIL TO
CLAIM YOUR PRODUCT WITHIN 90 DAYS AFTER THE DEALER MAILS A COPY OF
THIS NOTICE TO YOU IT MAY BE SOLD OR OTHERWISE DISPOSED OF BY HIM OR
HER.
PRINT YOUR NAME AND MAILING ADDRESS WHERE NOTICE MAY BE SENT TO YOU
IN THE SPACE PROVIDED BELOW AND SIGN WHERE INDICATED TO SHOW THAT YOU
HAVE READ THIS NOTICE.
___________________________________
(Print Name)
______________________________________
(Street Address)
____________________________________________
(City, State and ZIP Code)
IF YOU DO NOT AGREE WITH THE ABOVE DETERMINED VALUE OF YOUR ITEM, DO
NOT SIGN THIS DOCUMENT.
Signature: ___________________________________
(Owner or Agent)
This notice shall be signed, addressed, and dated by the owner,
with a copy to be retained by both the owner and the service dealer.
At the completion of service, the service dealer shall by first-class
mail, mail a completed copy of the notice to the owner of the
serviced product at the address given on the notice form. A serviced
product may be disposed of 90 days after the date of mailing.
(c) For purposes of this section, an owner is the person or agent
who authorizes the original service or repair, or delivers the
product to the service dealer.
3053. A factor has a general lien, dependent on possession, for all
that is due to him as such, upon all articles of commercial value
that are intrusted to him by the same principal.
3054. (a) A banker, or a savings and loan association, has a
general lien, dependent on possession, upon all property in his or
her hands belonging to a customer, for the balance due to the banker
or savings and loan association from the customer in the course of
the business.
(b) The exercise of this lien with respect to deposit accounts
shall be subject to the limitations and procedures set forth in
Section 864 or 6660 of the Financial Code.
3059. The liens of mechanics, for materials and services upon real
property, are regulated by Chapter 2 (commencing with Section 3109)
of Title 15 of this part.
3059. The liens of mechanics, for materials and services upon real
property, are regulated by Chapter 4 (commencing with Section 8400)
of Title 2 of Part 6 of Division 4.
3060. Any person who performs labor in any mining claim or claims,
or in or upon any real property worked as a mine, either in the
development thereof or in working thereon by the subtractive process,
or furnishes materials to be used or consumed therein, has a lien
upon the same and the works owned and used by the owners for milling
or reducing the ores from the same, for the value of the work or
labor done or materials furnished by each respectively, whether done
or furnished at the instance of the owner of such mining claim or
claims or real property worked as a mine, or his agent, and every
contractor, subcontractor, superintendent, or other person having
charge of any mining or work or labor performed in and about such
mining claim or claims or real property worked as a mine, either as
lessee or under a working bond or contract thereon shall be held to
be the agent of the owner for the purposes of this section. The liens
provided for by this section shall be enforced in the same manner as
those provided for by Title 15 (commencing with Section 3082), Part
4, Division 3.
3060. (a) As used in this section, "mine" means a mining claim or
real property worked on as a mine.
(b) Any person who performs labor in a mine, either in its
development or in working on it by the subtractive process, or
furnishes materials to be used or consumed in it, has a lien upon the
mine and the works owned and used by the owners for milling or
reducing the ores from the mine, for the value of the work or labor
done or materials furnished by each, whether done or furnished at the
instance of the owner of the mine, or the owner's agent, and every
contractor, subcontractor, superintendent, or other person having
charge of any mining or work or labor performed in and about the
mine, either as lessee or under a working bond or contract thereon
shall be held to be the agent of the owner for the purposes of this
section. The liens provided for by this section shall be enforced in
the same manner as those provided for by Part 6 (commencing with
Section 8000) of Division 4.
3061. Every person performing work or labor in, with, about, or
upon any barley crusher, threshing machine or engine, horsepower,
wagon, or other appliance thereof, while engaged in crushing or
threshing, has a lien thereon to the extent of the value of his
services. Such lien extends for ten days after any such person ceases
such work or labor; provided, within that time, an action is brought
to recover the amount of the claim. If judgment is given in favor of
the plaintiff in any such action, and it is further found that he is
entitled to a lien under the provisions of this section, property
subject thereto, or so much thereof as may be necessary, may be sold
to satisfy such judgment; but if several judgment have been recovered
against the same property for the enforcement of such liens, the
proceeds of the sale must be divided pro rata among the judgment
creditors.
3061.5. (a) Except as provided in subdivision (d), any person who
as an employee shall, by his or her own labor, do or perform any work
harvesting or transporting harvested crops or farm products as
defined in Section 55403 of the Food and Agricultural Code which are
owned and grown or produced by a limited partnership as defined in
Section 15501 of the Corporations Code, has a lien upon any and all
of the severed crops or severed farm products or proceeds from their
sale for the value of the labor done up to a maximum of earnings for
two weeks. The liens attach whether the work was done at the instance
of the owner who is the grower or producer of severed crops or
severed farm products or of any other person acting by or under the
owner's authority, directly or indirectly, as contractor or
otherwise; and every contractor, subcontractor, or other person
having charge of the harvesting or transporting of the severed crops
or severed farm products shall be held to be the agent of the owner
for the purposes of this section.
(b) The liens provided for in this section attach from the date of
the commencement of the work or labor, and are preferred liens,
prior in dignity to all other liens, claims, or encumbrances. Except
as provided in subdivisions (a) and (c) they shall not be limited as
to amount by any contract price agreed upon between the owner who is
the grower or producer of the severed crops or severed farm products
and any contractor, but the several liens shall not in any case
exceed in amount the reasonable value of the labor done, nor the
price agreed upon for the labor between the claimant and his or her
employer. In no event, where the claimant was employed by a
contractor, or subcontractor, shall the lien extend to any labor not
contemplated by, covered by, or reasonably necessary to the execution
of, the original contract between the contractor and the owner who
is the grower or producer of severed crops or severed farm products
and of which contract, or modification thereof, the claimant had
actual notice before the performance of the labor.
(c) The maximum liability of severed crops, severed farm products
or the proceeds from their sale subject to liens under this section
is limited to the lesser of actual proved claims or 25 percent of the
fair market value of the severed crops, severed farm products, or 25
percent of the proceeds after their sale.
(d) No person has a lien if the owner who is the grower or
producer of the severed crops, severed farm products, or their
proceeds, who otherwise would be subject to a lien pursuant to
subdivision (a), either gives directly, or requires a person or
entity hired or used to furnish labor in connection with harvesting
or transporting the severed crops, to give to the Labor Commissioner
prior to the harvest and for 45 days after its completion, a bond
executed by an admitted surety insurer in an amount and form
acceptable to the Labor Commissioner, which is conditioned upon the
payment of all wages found to be due and unpaid in connection with
such operations under any provision of this code.
(e) A buyer in the ordinary course of business, as defined in
paragraph (9) of subdivision (b) of Section 1201 of the Commercial
Code, shall take free of any security interest created by this
section, notwithstanding the fact that the lien is perfected and the
buyer knows of its existence.
3061.6. (a) The lien created by Section 3061.5 shall continue in
force for a period of 45 days from the time the person claiming such
lien shall have ceased to do or perform the work for which such lien
is claimed, and such lien shall cease at the expiration of the 45
days unless the claimant, his or her assignee or successor in
interest, files a claim with the Labor Commissioner or brings suit to
foreclose the lien in which case the lien continues in force until
the claim filed with the Labor Commissioner or the lien foreclosure
suit is finally determined and closed. If a claim is filed with the
Labor Commissioner, the Labor Commissioner shall act upon and finally
determine such claim within 180 days after filing. In case such
proceedings are not prosecuted to trial within two years after the
commencement thereof, the court may in its discretion dismiss the
same for want of prosecution.
(b) Upon filing a claim with the Labor Commissioner, the Labor
Commissioner, if the owner who is the grower or producer has failed
to satisfy the conditions of subdivision (d) of Section 3061.5, shall
determine whether or not such owner of the severed crops, severed
farm products, or their proceeds is capable financially of satisfying
such claim. For purposes of this determination, it shall be proper
for the Labor Commissioner after investigation to take into account
the potential liability faced by such owner of such severed crops,
severed farm products, or their proceeds. If the Labor Commissioner
determines that a lien is necessary to protect the interest of
claimants, the Labor Commissioner shall file such lien on the crop,
the severed farm product, or their proceeds and notify, in writing,
the owner and notify, in writing, all persons who have filed
financing statements on the crop, the farm product, or their proceeds
pursuant to the provisions of the Commercial Code.
(c) The plaintiff in any such lien foreclosure suit, at the time
of issuing the summons or at any time afterwards, may have the
severed crops or severed farm products or proceeds from their sale
upon which such lien subsists attached, as provided in this code and
Title 6.5 (commencing with Section 488.010) of Part 2 of the Code of
Civil Procedure, upon delivering to the clerk an affidavit, by or on
behalf of the plaintiff, showing that: (1) the plaintiff, or his
assignor or predecessor in interest, performed labor in harvesting or
transporting the severed crops or severed farm products or both; (2)
that such labor has not been paid for; (3) that the sum for which
the attachment is asked does not exceed the lesser of the reasonable
value of the services rendered or if earnings, does not exceed the
lesser of two weeks unpaid earnings or reasonable value of actual
services rendered, or 25 percent of the fair market value of the
severed crop or severed farm product; and (4) that the attachment is
not sought and the action is not brought to hinder, delay or defraud
any creditor or creditors of any defendant.
(d) Any number of persons claiming liens under this section and
Section 3061.5 may join in the same action and when separate actions
are commenced, the court may consolidate them. If after sale of the
property subject to the liens provided for in this section and
Section 3061.5, under the judgment or decree of foreclosure of such
lien or liens, there is a deficiency of proceeds, the proceeds shall
be divided pro rata among the lien claimants whose liens are
established, regardless of the order in which the liens were created
or the order in which the suits to foreclose same were commenced.
Judgment for the deficiency may be docketed against the party
personally liable therefor and his sureties.
(e) Nothing contained in this section or Section 3061.5 shall be
construed to impair or affect the right of any person to whom any
debt may be due for work done, to maintain a personal action to
recover such debt against the person liable therefor, or his
sureties, either in connection with the lien suit or in a separate
action. The person bringing such personal action may take out a
separate attachment therefor, notwithstanding his or her lien, and in
his or her affidavit to procure an attachment need not state that
his or her demand is not secured by a lien, and the judgment, if any,
obtained by the plaintiff in such personal action shall not be
construed to impair or merge any lien held by the plaintiff under
this section or Section 3061.5; provided that any money collected on
the judgment shall be credited on the amount of such lien in any
action brought to enforce the same, in accordance with the provisions
of this section.
(f) If the lien has attached to perishable goods, the lienholder
may, during the period for which the lien is in effect and prior to
the filing of a foreclosure suit, obtain a court order for the sale
of such perishable goods pursuant to the provisions of Section
488.530 of the Code of Civil Procedure; provided, however, that in
the event that such perishable crop is subject in whole or in part to
a valid marketing agreement which is in force between the owner who
is the grower or producer and an agricultural marketing cooperative
organized under the Food and Agricultural Code or similar laws of
other states, the agricultural marketing cooperative may purchase or
otherwise take possession or custody of such crop or portion thereof
according to the terms of the marketing agreement. Any moneys due and
payable to such owner who is the grower or producer in return for
such crop shall be paid by the agricultural marketing cooperative to
the court.
3062. Every owner or person having in charge any stallion, jack, or
bull, used for propagating purposes, has a lien for the agreed price
of its service upon any mare or cow and upon the offspring of such
service, unless some willfully false representation concerning the
breeding or pedigree of such stallion, jack, or bull has been made or
published by the owner or person in charge thereof, or by some other
person, at the request or instigation of such owner or person in
charge.
3063. Every claimant of a lien provided for in the preceding
section must, within 90 days after the service on account of which
the lien is claimed, record in the office of the county recorder of
the county where the mare or cow subject thereto is kept, a verified
claim containing a particular description of the mare or cow, the
date and place of service, the name of the owner or reputed owner of
such mare or cow, a description by name, or otherwise, of the
stallion, jack, or bull performing the service, the name of the owner
or person in charge thereof, and the amount of the lien claimed.
Such claim, so recorded, is notice to subsequent purchasers and
encumbrancers of such mare or cow and of the offspring of such
service for one year after such recording.
3064. An action to enforce any lien created under Section 3062 may
be brought in any county wherein any of the property subject thereto
may be found, and the plaintiff is entitled to the remedies provided
in Section 3065 upon complying with such section, which is hereby
made applicable to the proceedings in such action.
3064.1. Every person who wilfully advertises any cattle, horse,
sheep, swine, or other domestic animal for purposes of copulation or
profit as having a pedigree other than the true pedigree of such
animal shall forfeit all right by law to collect pay for the services
of such animal.
3065. Any person who shall, by his own labor, or by using his
livestock, machinery or appliances, or both, do or perform any work
or render any service in connection with felling, preparing or
transporting any logs, or in manufacturing lumber or other timber
products from such logs, including the production of tanbark, shall
have a lien upon any and all of such logs and upon any and all of the
lumber and other timber products manufactured therefrom, whether
said work was done or service was rendered on the logs themselves, or
any of them, or in manufacturing the lumber or other timber products
from them, for the value of such labor done and for the value of the
use of such livestock, machinery and appliances, or both, whether
said work was done or service was rendered at the instance of the
owner of such logs or timber products manufactured therefrom, or of
any other person acting by his authority or under him, directly or
indirectly, as contractor or otherwise; and every contractor,
subcontractor or other person having charge of the felling, preparing
or transporting of the said logs or of their manufacture into timber
products shall be held to be the agent of the said owner for the
purposes of this section.
The liens provided for in this section shall attach from the date
of the commencement of such work or labor, or the date of the
commencement of the use of such livestock, machinery or appliances,
as the case may be, and shall be preferred liens, prior in dignity to
all other liens, claims or encumbrances, except the landowner's
claim for a reasonable stumpage in cases where the landowner himself
is not the direct employer or contractor, as the case may be. They
shall not be limited as to amount by any contract price agreed upon
between the owner of said logs or timber products manufactured
therefrom and any contractor, except as hereinafter provided, but
said several liens shall not in any case exceed in amount the
reasonable value of the labor done, or the reasonable value of the
use of the livestock, machinery or appliances for which the lien is
claimed, nor the price agreed upon for the same between the claimant
and the person by whom he was employed or with whom the agreement to
use livestock, machinery or appliances was made, nor in any case,
where the claimant was employed by a contractor, or subcontractor,
shall the lien extend to any labor or the use of any livestock,
machinery or appliances not embraced within, contemplated by, covered
by, or reasonably necessary to the execution of, the original
contract between the contractor and the owner of such logs or timber
products manufactured therefrom, or any modification thereof made by
or with the consent of such owner, and of which said contract, or
modification thereof, the claimant shall have had actual notice
before the performance of such labor or the use of such livestock,
machinery or appliances.
The recording of such original contract, or modification thereof,
in the office of the county recorder of the county in which the
timberland on which the work is to be done is situated or in which
the logs are to be manufactured into timber products, as the case may
be, before the commencement of the work, shall be equivalent to the
giving of such actual notice by the owner to all persons performing
work or using livestock, machinery or appliances thereunder. In case
said original contract shall, before the work is commenced, be so
recorded, together with a bond of the contractor with good and
sufficient sureties in an amount not less than fifty (50) percent of
the contract price named in said contract, which bond shall in
addition to any conditions for the performance of the contract, be
also conditioned for the payment in full of the claims of all persons
performing labor, or using livestock, machinery or appliances, in
the execution of such contract and shall also by its terms be made to
inure to the benefit of any and all persons who perform labor or use
livestock, machinery or appliances in the execution of the work to
be done under the contract so as to give such persons, and their
assigns or successors in interest, a right of action to recover upon
said bond in any suit brought to enforce the liens provided for in
this section, or in a separate suit brought on said bond, then the
court must, where it would be equitable so to do, restrict the
recovery under such liens to an aggregate amount equal to the amount
found to be due from the owner of the said logs or timber products
manufactured therefrom to the contractor, and render judgment against
the contractor and his sureties on said bond for any deficiency or
difference there may remain between said amount so found to be due to
the claimants for such labor and for the use of such livestock,
machinery and appliances. It is the intent and purpose of this
section to limit the owner's liability, in all cases, to the measure
of the contract price where he shall have filed or caused to be
filed, in good faith, with his original contract a valid bond with
good and sufficient sureties in the amount and upon the conditions
herein provided. It shall be lawful for the owner of such logs and
timber products to protect himself against any failure of the
contractor to perform his contract and make full payment for all work
done thereunder by exacting such bond or other security as he may
deem satisfactory.
3065a. The lien created by the last preceding section shall
continue in force for a period of 30 days from the time the person
claiming such lien shall have ceased to do or perform the work or
render the service for which said lien is claimed, while such logs,
lumber or other manufactured timber products are in the county in
which such labor was performed or service rendered, and said lien
shall cease at the expiration of the said 30 days unless the claimant
thereof, or his assignee or successor in interest, brings suit to
foreclose the same, in which case the lien continues in force until
the said lien foreclosure suit is finally determined and closed, and
in case such proceeding be not prosecuted to trial within two years
after the commencement thereof, the court may in its discretion
dismiss the same for want of prosecution. If any part of the property
on which the lien existed is removed from the said county, the lien
continues on the balance remaining in the county to the full extent
of the claim.
The plaintiff in any such lien foreclosure suit may have the logs,
lumber and other manufactured timber products upon which such lien
subsists attached, as provided in this code and the Code of Civil
Procedure.
Any number of persons claiming liens under this and the next
preceding section may join in the same action and when separate
actions are commenced, the court may consolidate them. Whenever upon
the sale of the property subject to the liens provided for in this
and the next preceding section, under the judgment or decree of
foreclosure of such lien or liens, there is a deficiency of proceeds,
the proceeds shall be divided pro rata among the lien claimants
whose liens are established, regardless of the order in which the
liens were created or the order in which the suits to foreclose same
were commenced, and judgment for the deficiency may be docketed
against the party personally liable therefor and his sureties, in
like manner and with like effect as in actions for the foreclosure of
mortgages.
Nothing contained in this or the next preceding section shall be
construed to impair or affect the right of any person to whom any
debt may be due for work done, or for the use of livestock, machinery
or appliances, to maintain a personal action to recover said debt
against the person liable therefor, or his sureties, either in
connection with the lien suit or in a separate action, and the person
bringing such personal action may take out a separate attachment
therefor, notwithstanding his lien or the amount of his debt, and in
his affidavit to procure an attachment he shall state that the
attachment is made pursuant to this section, and the judgment, if
any, obtained by the plaintiff in such personal action shall not be
construed to impair or merge any lien held by said plaintiff under
this or the next preceding section; provided, only, that any money
collected on said judgment shall be credited on the amount of such
lien in any action brought to enforce the same, in accordance with
the provisions of this section.
3065b. As used in the next preceding section the words "the time
the person claiming such lien shall have ceased to do or perform the
work or render the service for which said lien is claimed" shall be
construed to mean the final date work was done or services were
rendered on any of the logs, lumber or other manufactured timber
products on which the lien is claimed, so as to give the lien
claimant, or his assignee or successor in interest, a full thirty
days after final cessation of labor to bring suit to foreclose his
lien on any or all of the logs, lumber or other manufactured timber
products in question.
3065c. Whenever any faller, bucker, or millhand has a lien pursuant
to Section 3065 and has not been paid for his labor by the
contractor employing him, and money is owing to such contractor by a
mill operator, any such faller, bucker, or millhand, or several of
them acting jointly, may file with the Labor Commissioner an
affidavit stating the amount of wages unpaid to him or them and
describing the labor for which wages are owed and the period in which
such labor was performed. If the Labor Commissioner finds the
affidavit in order, he shall send to such mill operator a stop notice
directing such mill operator to withhold funds in the amount of the
unpaid wages from the contractor. The mill operator shall withhold
such funds pursuant to the stop notice for 15 days from the date of
service of the notice, subject to garnishment within that period by
the faller, bucker, or millhand or any assignee thereof.
3066. (a) Any garment, clothing, wearing apparel or houshold goods
remaining in the possession of a person, firm, partnership or
corporation, on which cleaning, pressing, glazing or washing has been
done or upon which alterations or repairs have been made, or on
which materials or supplies have been used or furnished, for a period
of 90 days or more after the completion of such work may be sold to
pay the reasonable or agreed charges and the costs of notifying the
owner or owners. Provided, however, that the person, firm,
partnership, or corporation to whom such charges are payable and
owing shall first notify the owner or owners of the time and place of
such sale. Provided further, that property that is to be placed in
storage after any of the services or labors mentioned herein, shall
not be affected by the provisions of this section.
(b) All garments, clothing, wearing apparel or household goods
placed in storage, or on which any of the services or labors
mentioned in the preceding section of this act have been performed
and then placed in storage by agreement and remaining in the
possession of a person, firm, partnership or corporation without the
reasonable or agreed charges having been paid for a period of 12
months, may be sold to pay said charges. Provided that the person,
firm, partnership or corporation to whom the charges are payable,
shall first notify the owner or owners thereof of the time and place
of sale. Provided, however, that the persons, firms, partnerships, or
corporations operating as warehouses or warehousemen shall not be
affected by this section.
(c) The posting or mailing of a registered letter, with a return
address marked thereon, addressed to the owner or owners, at their
address given at the time of delivery of the article or articles to a
person, firm, partnership or corporation to render any of the
services or labors set out in this act, stating the time and place of
sale, shall constitute notice. Said notice shall be posted or mailed
at least 30 days before the date of sale. The cost of posting or
mailing said letter shall be added to the charges.
Where the address of an owner is unknown, a posting of notice, for
a period of 30 days, at a prominent place in the receiving office of
the person, firm, partnership or corporation required to give the
notice is sufficient.
(d) The person, firm, partnership or corporation to whom the
charges are payable, shall, from the proceeds of the sale, deduct the
charges due plus the costs of notifying the owner and shall hold the
overplus, if any, subject to the order of the owner and shall
immediately thereafter mail to the owner thereof at his address, if
known, a notice of the sale, the amount of the overplus, if any, due
him, and at any time within 12 months, upon demand by the owner, pay
to the owner said sums or overplus in his hands.
(e) All persons, firms, partnerships or corporations taking
advantage of this act must keep posted in a prominent place in their
receiving office or offices at all times one notice which shall read
as follows:
"All articles cleaned, pressed, glazed, laundered, washed, altered
or repaired and not called for in 90 days shall be sold to pay
charges." "All articles stored by agreement and charges not having
been paid for 12 months will be sold to pay charges."
3046. One who sells real property has a vendor's lien thereon,
independent of possession, for so much of the price as remains unpaid
and unsecured otherwise than by the personal obligation of the
buyer.
3047. Where a buyer of real property gives to the seller a written
contract for payment of all or part of the price, an absolute
transfer of such contract by the seller waives his lien to the extent
of the sum payable under the contract, but a transfer of such
contract in trust to pay debts, and return the surplus, is not a
waiver of the lien.
3048. The liens defined in Sections 3046 and 3050 are valid against
every one claiming under the debtor, except a purchaser or
incumbrancer in good faith and for value.
3050. One who pays to the owner any part of the price of real
property, under an agreement for the sale thereof, has a special lien
upon the property, independent of possession, for such part of the
amount paid as he may be entitled to recover back, in case of a
failure of consideration.
3051. Every person who, while lawfully in possession of an article
of personal property, renders any service to the owner thereof, by
labor or skill, employed for the protection, improvement,
safekeeping, or carriage thereof, has a special lien thereon,
dependent on possession, for the compensation, if any, which is due
to him from the owner for such service; a person who makes, alters,
or repairs any article of personal property, at the request of the
owner, or legal possessor of the property, has a lien on the same for
his reasonable charges for the balance due for such work done and
materials furnished, and may retain possession of the same until the
charges are paid; and foundry proprietors and persons conducting a
foundry business, have a lien, dependent on possession, upon all
patterns in their hands belonging to a customer, for the balance due
them from such customers for foundry work; and plastic fabricators
and persons conducting a plastic fabricating business, have a lien,
dependent on possession, upon all patterns and molds in their hands
belonging to a customer, for the balance due them from such customer
for plastic fabrication work; and laundry proprietors and persons
conducting a laundry business, and drycleaning establishment
proprietors and persons conducting a drycleaning establishment, have
a general lien, dependent on possession, upon all personal property
in their hands belonging to a customer, for the balance due them from
such customer for laundry work, and for the balance due them from
such customers for drycleaning work, but nothing in this section
shall be construed to confer a lien in favor of a wholesale
drycleaner on materials received from a drycleaning establishment
proprietor or a person conducting a drycleaning establishment; and
veterinary proprietors and veterinary surgeons shall have a lien
dependent on possession, for their compensation in caring for,
boarding, feeding, and medical treatment of animals.
This section shall have no application to any vessel, as defined
in Section 21 of the Harbors and Navigation Code, to any vehicle, as
defined in Section 670 of the Vehicle Code, which is subject to
registration pursuant to that code, to any manufactured home, as
defined in Section 18007 of the Health and Safety Code, to any
mobilehome, as defined in Section 18008 of the Health and Safety
Code, or to any commercial coach, as defined in Section 18001.8 of
the Health and Safety Code, whether or not the manufactured home,
mobilehome, or commercial coach is subject to registration under the
Health and Safety Code.
3051a. That portion of any lien, as provided for in the next
preceding section, in excess of three hundred dollars ($300) for any
work, services, or care, or in excess of two hundred dollars ($200)
for any safekeeping, rendered or performed at the request of any
person other than the holder of the legal title, shall be invalid,
unless prior to commencing any such work, service, care, or
safekeeping, the person claiming such lien shall give actual notice
in writing either by personal service or by registered letter
addressed to the holder of the legal title to such property, if
known.
3051.5. (a) A carrier has a lien on freight in its possession for
the total amount owed the carrier by the shipper for freightage,
charges for services and advances due on freight previously delivered
upon the promise of the shipper to pay freightage, charges and
advances, as provided in this section.
(b) The lien provided by this section shall not arise:
(1) Unless the carrier has notified the shipper, in writing, that
failure to pay billed charges may result in a lien on future
shipments, including the cost of storage and appropriate security for
the subsequent shipment held pursuant to this section.
(2) As to any freight which consists of perishable goods.
(c) Except as otherwise provided in this section, the notice and
sale provisions of Section 3052 shall apply to the sale of property
subject to a lien provided by this section.
(d) No sale of property subject to a lien provided by this section
may take place for at least 35 days from the date that possession of
the property is delivered to the carrier but the notice period set
forth in Section 3052 may run concurrently with the 35-day period
provided by this subdivision. In addition to the notices required by
Section 3052, the lienholder, at least 10 days prior to any sale of
the property, shall notify the shipper and the consignee of the
property, and each secured party having a perfected security interest
in the property, of the date, time and place of the intended sale.
This notice shall include the names of both the shipper and the
consignee and shall describe the property to be sold.
(e) Any perfected security interest in the property is prior to
the lien provided by this section. No sale of the property may be
concluded if the amount bid at the sale is not at least equal to the
total amount of all outstanding obligations secured by a perfected
security interest in the property. If the minimum bid required for
the sale of property pursuant to this subdivision is not received,
the lienholder shall promptly release the property to the legal owner
upon payment of the current amount for freightage, charges for
services and advances due for shipment of that property, not
including amounts due on freight previously delivered.
The proceeds of the sale shall be applied as follows:
(1) First, to secured parties having a perfected security
interest, in the amounts to which they are respectively entitled.
(2) Second, to the discharge of the lien provided by this section
and the costs of storage, appropriate security, and of the sale.
(3) The remainder, if any, to the legal owner of the property.
In the event of any violation by the lienholder of any provision
of this subdivision the lienholder shall be liable to any secured
party for all damages sustained by the secured party as a result
thereof plus all expenses reasonably and necessarily incurred in the
enforcement of the secured party's rights, including reasonable
attorney's fees and costs of suit.
(f) The shipper shall be liable to the consignee for any damage
which results from the failure of the property to reach the consignee
as scheduled due to the carrier's proper exercise of its lien rights
pursuant to this section. The measure of damages shall be determined
as set forth in Section 2713 of the Commercial Code.
3051.6. (a) Except as provided in subdivision (b), a carrier has a
lien on freight in its possession for the total amount owed to the
carrier by the owner or beneficial owner of the cargo being shipped
for the aggregate amount of any fines, penalties, costs, expenses, or
interest incurred by the carrier resulting from the inclusion of
false or erroneous information as to gross cargo weight in a written
or electronic certification provided by the owner, beneficial owner,
or person responsible for making the certification pursuant to
Section 508 of Title 49 of the United States Code.
(b) This section does not apply to any of the following freight:
(1) Perishable goods.
(2) Freight shipped by a means involving other than intermodal
transportation, as that term is defined by Section 508 of Title 49 of
the United States Code.
(3) Freight shipped by loaded containers or trailers having a
gross projected cargo weight, including packing material and pallets,
of less than 10,000 pounds.
(c) Any sale to foreclose a lien specified in this section shall
be conducted in accordance with Section 3052, except that (1) the
lien sale shall not take place for at least 35 days from the date
that possession of the property is delivered to the carrier, but the
notice period specified in Section 3052 may run concurrently with
this 35-day period and (2), in addition to the notices required by
Section 3052, at least 10 days prior to the sale of the property the
lienholder shall notify the shipper and consignee of the property of
the date, time, and place of the intended sale. This notice shall
contain the names of the shipper and consignee and shall generally
describe the property to be sold.
3052. If the person entitled to the lien provided in Section 3051
is not paid the amount due, and for which such lien is given, within
10 days after the same shall have become due, then such lienholder
may proceed to sell such property, or so much thereof as may be
necessary to satisfy such lien and costs of sale at public auction,
and by giving at least 10 days' but not more than 20 days' previous
notice of such sale by advertising in some newspaper published in the
county in which such property is situated; or if there be no
newspaper printed in such county, then by posting notice of sale in
three of the most public places in the town and at the place where
such property is to be sold, for 10 days previous to the date of the
sale; provided, however, that within 20 days after such sale, the
legal owner may redeem any such property so sold to satisfy such lien
upon the payment of the amount thereof, all costs and expenses of
such sale, together with interest on such sum at the rate of 12
percent per annum from the due date thereof or the date when the same
were advanced until the repayment. The proceeds of the sale must be
applied to the discharge of the lien and the cost of keeping and
selling the property; the remainder, if any, must be paid over to the
legal owner thereof.
3052a. Every person, firm, or corporation, engaged in performing
work upon any watch, clock or jewelry, for a price, shall have a lien
upon the watch, clock, or jewelry for the amount of any account that
may be due for the work done thereon. The lien shall also include
the value or agreed price, if any, of all materials furnished by the
lienholder in connection with the work. If any account for work done
or materials furnished shall remain unpaid for one year after
completing the work, the lienholder may, upon 30 days notice in
writing to the owner, specifying the amount due, and informing him
that the payment of the amount due within 30 days will entitle him to
redeem the property, sell any such article or articles at public or
bona fide private sale to satisfy the account. The proceeds of the
sale, after paying the expenses thereof, shall first be applied to
liquidate the indebtedness secured by the lien and the balance, if
any, shall be paid over to the owner.
The notice may be served by registered mail with return receipt
demanded, directed to the owner's last known address, or, if the
owner or his address be unknown, it may be posted in two public
places in the town or city where the property is located. Nothing
herein contained shall be construed as preventing the lienholder from
waiving the lien herein provided for suing upon the amount if he
elects to do so.
3052b. (a) The procedure in this section shall be an alternative to
the lien-sale procedure provided in Section 3052, but applies only
to liens under Section 3051 for charges not exceeding one hundred
fifty dollars ($150), exclusive of additional charges and interest
authorized by this section. As a condition precedent to using the
procedure specified in this section, the lienholder shall have done
all of the following:
(1) Provided the property owner with an accurate written summary
of the lien provisions of this section.
(2) Obtained the property owner's address and telephone number,
together with a written declaration signed by the property owner
stating that the property owner has read and understands the summary
provided pursuant to paragraph (1), at the time of entering into the
transaction from which the lien arose.
(3) Posted, at the time of the transaction from which the lien
arose, a notice which fully and fairly informs the public of the
substance of this section. The notice shall be posted in a location
clearly visible to the public in the lienholder's business premises.
(b) Any lienholder proceeding under this section shall notify the
owner of the property subject to the lien upon completion of the work
for which the lien is claimed. This notice shall be by first-class
mail.
(c) If a property owner who has actually received notice pursuant
to subdivision (b) fails to pay the charges for which the lien is
claimed for 30 days following receipt of the notice, the lienholder
may thereafter charge two dollars ($2) per day for storing the
property subject to the lien and these charges shall also be secured
by the lien.
(d) Not less than 30 days following the notice specified in
subdivision (b), the lienholder shall notify the property owner by
first-class mail that the property will be sold to satisfy the lien,
unless the charges are paid within 30 days following the mailing of
the notice.
(e) If the lienholder has complied with the notice requirements of
subdivisions (b) and (d), not less than 30 days have elapsed since
the mailing of the notice required by subdivision (d), and the
property owner has not fully paid the original charges for which the
lien is claimed plus any additional charges authorized by subdivision
(c), the lienholder may sell the property subject to the lien at a
public or bona fide private sale to satisfy the sum of those
obligations, all costs and expenses of the sale, and interest at the
rate of 12 percent per annum from 30 days following receipt of the
notice specified in subdivision (b) or the date the same were
advanced until repayment.
(f) However, the owner of the property sold pursuant to
subdivision (e) may redeem the property sold to satisfy the lien,
within 20 days following the sale, upon payment of all charges, costs
and expenses, and interest specified in subdivision (e).
(g) The proceeds of the sale shall first be applied to the
discharge of the lien, the costs of sale, and interest specified in
subdivision (e). The remainder, if any, shall be paid to the former
owner of the property so sold.
3052.5. (a) Sections 3052 and 3052b shall not apply to any service
dealer registered with the Bureau of Repair Services pursuant to
Chapter 20 (commencing with Section 9800) of Division 3 of the
Business and Professions Code if the dealer reasonably believes that
the serviced product is of nominal value. For purposes of this
section, nominal value shall be ascertained as follows: the product
is not readily salable for more than the legitimate charges against
it, and either the original retail value of the product was under two
hundred dollars ($200) and the product is over three years old, or
the original retail value is over two hundred dollars ($200) and the
product is over six years old.
Service dealers may use any available materials or information,
including, but not limited to, industry publications, code dates,
sales records, or receipts to assist in determining value and age of
the serviced product.
(b) A service dealer may select one of the following alternative
methods for the disposal of unclaimed serviced products determined to
have a value as specified in subdivision (a):
(1) The service dealer may provide the owner of the product with
the following written notice to be mailed following completion of
work on the serviced product:
DATE BROUGHT
IN_______________________________________________
DATE
MAILED___________________________________________
DATE PRODUCT TO BE SOLD IF NOT
CLAIMED
_________________________________________________
NOTICE: YOUR PRODUCT HAS BEEN DETERMINED BY THIS SERVICE DEALER TO
BE ONE WHICH WAS EITHER ORIGINALLY SOLD FOR LESS THAN $200 AND IS NOW
OVER THREE YEARS OLD OR ONE WHICH WAS ORIGINALLY SOLD FOR MORE THAN
$200 AND WHICH IS NOW OVER SIX YEARS OLD AND THE CHARGES FOR
SERVICING YOUR PRODUCT WILL EXCEED ITS CURRENT VALUE. UNDER
CALIFORNIA CIVIL CODE SECTION 3052.5(a) IF YOU OR YOUR AGENT FAIL TO
CLAIM YOUR PRODUCT WITHIN 90 DAYS AFTER THE DEALER MAILS A COPY OF
THIS NOTICE TO YOU IT MAY BE SOLD OR OTHERWISE DISPOSED OF BY HIM OR
HER.
The notice shall be sent by certified mail, return receipt
requested. A serviced product may be disposed of 90 days after the
date of deliverance evidenced by the signature in the returned
receipt.
(2) The service dealer may publish public notice of the intended
sale in a newspaper of general circulation. The notice shall contain
a description of the serviced product, the name of the serviced
product owner, and the time by which and place where the product may
be redeemed. The notice shall be published for a minimum of five
times. A serviced product may be disposed of 90 days after the last
date of publication.
(3) A service dealer may, upon receipt of any product to be
serviced by him or her, provide the owner of the product with the
following notice, written in at least 10-point boldface type:
DATE BROUGHT
IN_______________________________________________
DATE
MAILED___________________________________________
DATE PRODUCT TO BE SOLD IF NOT
CLAIMED
_________________________________________________
NOTICE: YOUR PRODUCT HAS BEEN DETERMINED BY THIS SERVICE DEALER TO
BE ONE WHICH WAS EITHER ORIGINALLY SOLD FOR LESS THAN $200 AND IS NOW
OVER THREE YEARS OLD OR ONE WHICH WAS ORIGINALLY SOLD FOR MORE THAN
$200 AND WHICH IS NOW OVER SIX YEARS OLD AND THE CHARGES FOR
SERVICING YOUR PRODUCT WILL EXCEED ITS CURRENT VALUE. UNDER
CALIFORNIA CIVIL CODE SECTION 3052.5(a) IF YOU OR YOUR AGENT FAIL TO
CLAIM YOUR PRODUCT WITHIN 90 DAYS AFTER THE DEALER MAILS A COPY OF
THIS NOTICE TO YOU IT MAY BE SOLD OR OTHERWISE DISPOSED OF BY HIM OR
HER.
PRINT YOUR NAME AND MAILING ADDRESS WHERE NOTICE MAY BE SENT TO YOU
IN THE SPACE PROVIDED BELOW AND SIGN WHERE INDICATED TO SHOW THAT YOU
HAVE READ THIS NOTICE.
___________________________________
(Print Name)
______________________________________
(Street Address)
____________________________________________
(City, State and ZIP Code)
IF YOU DO NOT AGREE WITH THE ABOVE DETERMINED VALUE OF YOUR ITEM, DO
NOT SIGN THIS DOCUMENT.
Signature: ___________________________________
(Owner or Agent)
This notice shall be signed, addressed, and dated by the owner,
with a copy to be retained by both the owner and the service dealer.
At the completion of service, the service dealer shall by first-class
mail, mail a completed copy of the notice to the owner of the
serviced product at the address given on the notice form. A serviced
product may be disposed of 90 days after the date of mailing.
(c) For purposes of this section, an owner is the person or agent
who authorizes the original service or repair, or delivers the
product to the service dealer.
3053. A factor has a general lien, dependent on possession, for all
that is due to him as such, upon all articles of commercial value
that are intrusted to him by the same principal.
3054. (a) A banker, or a savings and loan association, has a
general lien, dependent on possession, upon all property in his or
her hands belonging to a customer, for the balance due to the banker
or savings and loan association from the customer in the course of
the business.
(b) The exercise of this lien with respect to deposit accounts
shall be subject to the limitations and procedures set forth in
Section 864 or 6660 of the Financial Code.
3059. The liens of mechanics, for materials and services upon real
property, are regulated by Chapter 2 (commencing with Section 3109)
of Title 15 of this part.
3059. The liens of mechanics, for materials and services upon real
property, are regulated by Chapter 4 (commencing with Section 8400)
of Title 2 of Part 6 of Division 4.
3060. Any person who performs labor in any mining claim or claims,
or in or upon any real property worked as a mine, either in the
development thereof or in working thereon by the subtractive process,
or furnishes materials to be used or consumed therein, has a lien
upon the same and the works owned and used by the owners for milling
or reducing the ores from the same, for the value of the work or
labor done or materials furnished by each respectively, whether done
or furnished at the instance of the owner of such mining claim or
claims or real property worked as a mine, or his agent, and every
contractor, subcontractor, superintendent, or other person having
charge of any mining or work or labor performed in and about such
mining claim or claims or real property worked as a mine, either as
lessee or under a working bond or contract thereon shall be held to
be the agent of the owner for the purposes of this section. The liens
provided for by this section shall be enforced in the same manner as
those provided for by Title 15 (commencing with Section 3082), Part
4, Division 3.
3060. (a) As used in this section, "mine" means a mining claim or
real property worked on as a mine.
(b) Any person who performs labor in a mine, either in its
development or in working on it by the subtractive process, or
furnishes materials to be used or consumed in it, has a lien upon the
mine and the works owned and used by the owners for milling or
reducing the ores from the mine, for the value of the work or labor
done or materials furnished by each, whether done or furnished at the
instance of the owner of the mine, or the owner's agent, and every
contractor, subcontractor, superintendent, or other person having
charge of any mining or work or labor performed in and about the
mine, either as lessee or under a working bond or contract thereon
shall be held to be the agent of the owner for the purposes of this
section. The liens provided for by this section shall be enforced in
the same manner as those provided for by Part 6 (commencing with
Section 8000) of Division 4.
3061. Every person performing work or labor in, with, about, or
upon any barley crusher, threshing machine or engine, horsepower,
wagon, or other appliance thereof, while engaged in crushing or
threshing, has a lien thereon to the extent of the value of his
services. Such lien extends for ten days after any such person ceases
such work or labor; provided, within that time, an action is brought
to recover the amount of the claim. If judgment is given in favor of
the plaintiff in any such action, and it is further found that he is
entitled to a lien under the provisions of this section, property
subject thereto, or so much thereof as may be necessary, may be sold
to satisfy such judgment; but if several judgment have been recovered
against the same property for the enforcement of such liens, the
proceeds of the sale must be divided pro rata among the judgment
creditors.
3061.5. (a) Except as provided in subdivision (d), any person who
as an employee shall, by his or her own labor, do or perform any work
harvesting or transporting harvested crops or farm products as
defined in Section 55403 of the Food and Agricultural Code which are
owned and grown or produced by a limited partnership as defined in
Section 15501 of the Corporations Code, has a lien upon any and all
of the severed crops or severed farm products or proceeds from their
sale for the value of the labor done up to a maximum of earnings for
two weeks. The liens attach whether the work was done at the instance
of the owner who is the grower or producer of severed crops or
severed farm products or of any other person acting by or under the
owner's authority, directly or indirectly, as contractor or
otherwise; and every contractor, subcontractor, or other person
having charge of the harvesting or transporting of the severed crops
or severed farm products shall be held to be the agent of the owner
for the purposes of this section.
(b) The liens provided for in this section attach from the date of
the commencement of the work or labor, and are preferred liens,
prior in dignity to all other liens, claims, or encumbrances. Except
as provided in subdivisions (a) and (c) they shall not be limited as
to amount by any contract price agreed upon between the owner who is
the grower or producer of the severed crops or severed farm products
and any contractor, but the several liens shall not in any case
exceed in amount the reasonable value of the labor done, nor the
price agreed upon for the labor between the claimant and his or her
employer. In no event, where the claimant was employed by a
contractor, or subcontractor, shall the lien extend to any labor not
contemplated by, covered by, or reasonably necessary to the execution
of, the original contract between the contractor and the owner who
is the grower or producer of severed crops or severed farm products
and of which contract, or modification thereof, the claimant had
actual notice before the performance of the labor.
(c) The maximum liability of severed crops, severed farm products
or the proceeds from their sale subject to liens under this section
is limited to the lesser of actual proved claims or 25 percent of the
fair market value of the severed crops, severed farm products, or 25
percent of the proceeds after their sale.
(d) No person has a lien if the owner who is the grower or
producer of the severed crops, severed farm products, or their
proceeds, who otherwise would be subject to a lien pursuant to
subdivision (a), either gives directly, or requires a person or
entity hired or used to furnish labor in connection with harvesting
or transporting the severed crops, to give to the Labor Commissioner
prior to the harvest and for 45 days after its completion, a bond
executed by an admitted surety insurer in an amount and form
acceptable to the Labor Commissioner, which is conditioned upon the
payment of all wages found to be due and unpaid in connection with
such operations under any provision of this code.
(e) A buyer in the ordinary course of business, as defined in
paragraph (9) of subdivision (b) of Section 1201 of the Commercial
Code, shall take free of any security interest created by this
section, notwithstanding the fact that the lien is perfected and the
buyer knows of its existence.
3061.6. (a) The lien created by Section 3061.5 shall continue in
force for a period of 45 days from the time the person claiming such
lien shall have ceased to do or perform the work for which such lien
is claimed, and such lien shall cease at the expiration of the 45
days unless the claimant, his or her assignee or successor in
interest, files a claim with the Labor Commissioner or brings suit to
foreclose the lien in which case the lien continues in force until
the claim filed with the Labor Commissioner or the lien foreclosure
suit is finally determined and closed. If a claim is filed with the
Labor Commissioner, the Labor Commissioner shall act upon and finally
determine such claim within 180 days after filing. In case such
proceedings are not prosecuted to trial within two years after the
commencement thereof, the court may in its discretion dismiss the
same for want of prosecution.
(b) Upon filing a claim with the Labor Commissioner, the Labor
Commissioner, if the owner who is the grower or producer has failed
to satisfy the conditions of subdivision (d) of Section 3061.5, shall
determine whether or not such owner of the severed crops, severed
farm products, or their proceeds is capable financially of satisfying
such claim. For purposes of this determination, it shall be proper
for the Labor Commissioner after investigation to take into account
the potential liability faced by such owner of such severed crops,
severed farm products, or their proceeds. If the Labor Commissioner
determines that a lien is necessary to protect the interest of
claimants, the Labor Commissioner shall file such lien on the crop,
the severed farm product, or their proceeds and notify, in writing,
the owner and notify, in writing, all persons who have filed
financing statements on the crop, the farm product, or their proceeds
pursuant to the provisions of the Commercial Code.
(c) The plaintiff in any such lien foreclosure suit, at the time
of issuing the summons or at any time afterwards, may have the
severed crops or severed farm products or proceeds from their sale
upon which such lien subsists attached, as provided in this code and
Title 6.5 (commencing with Section 488.010) of Part 2 of the Code of
Civil Procedure, upon delivering to the clerk an affidavit, by or on
behalf of the plaintiff, showing that: (1) the plaintiff, or his
assignor or predecessor in interest, performed labor in harvesting or
transporting the severed crops or severed farm products or both; (2)
that such labor has not been paid for; (3) that the sum for which
the attachment is asked does not exceed the lesser of the reasonable
value of the services rendered or if earnings, does not exceed the
lesser of two weeks unpaid earnings or reasonable value of actual
services rendered, or 25 percent of the fair market value of the
severed crop or severed farm product; and (4) that the attachment is
not sought and the action is not brought to hinder, delay or defraud
any creditor or creditors of any defendant.
(d) Any number of persons claiming liens under this section and
Section 3061.5 may join in the same action and when separate actions
are commenced, the court may consolidate them. If after sale of the
property subject to the liens provided for in this section and
Section 3061.5, under the judgment or decree of foreclosure of such
lien or liens, there is a deficiency of proceeds, the proceeds shall
be divided pro rata among the lien claimants whose liens are
established, regardless of the order in which the liens were created
or the order in which the suits to foreclose same were commenced.
Judgment for the deficiency may be docketed against the party
personally liable therefor and his sureties.
(e) Nothing contained in this section or Section 3061.5 shall be
construed to impair or affect the right of any person to whom any
debt may be due for work done, to maintain a personal action to
recover such debt against the person liable therefor, or his
sureties, either in connection with the lien suit or in a separate
action. The person bringing such personal action may take out a
separate attachment therefor, notwithstanding his or her lien, and in
his or her affidavit to procure an attachment need not state that
his or her demand is not secured by a lien, and the judgment, if any,
obtained by the plaintiff in such personal action shall not be
construed to impair or merge any lien held by the plaintiff under
this section or Section 3061.5; provided that any money collected on
the judgment shall be credited on the amount of such lien in any
action brought to enforce the same, in accordance with the provisions
of this section.
(f) If the lien has attached to perishable goods, the lienholder
may, during the period for which the lien is in effect and prior to
the filing of a foreclosure suit, obtain a court order for the sale
of such perishable goods pursuant to the provisions of Section
488.530 of the Code of Civil Procedure; provided, however, that in
the event that such perishable crop is subject in whole or in part to
a valid marketing agreement which is in force between the owner who
is the grower or producer and an agricultural marketing cooperative
organized under the Food and Agricultural Code or similar laws of
other states, the agricultural marketing cooperative may purchase or
otherwise take possession or custody of such crop or portion thereof
according to the terms of the marketing agreement. Any moneys due and
payable to such owner who is the grower or producer in return for
such crop shall be paid by the agricultural marketing cooperative to
the court.
3062. Every owner or person having in charge any stallion, jack, or
bull, used for propagating purposes, has a lien for the agreed price
of its service upon any mare or cow and upon the offspring of such
service, unless some willfully false representation concerning the
breeding or pedigree of such stallion, jack, or bull has been made or
published by the owner or person in charge thereof, or by some other
person, at the request or instigation of such owner or person in
charge.
3063. Every claimant of a lien provided for in the preceding
section must, within 90 days after the service on account of which
the lien is claimed, record in the office of the county recorder of
the county where the mare or cow subject thereto is kept, a verified
claim containing a particular description of the mare or cow, the
date and place of service, the name of the owner or reputed owner of
such mare or cow, a description by name, or otherwise, of the
stallion, jack, or bull performing the service, the name of the owner
or person in charge thereof, and the amount of the lien claimed.
Such claim, so recorded, is notice to subsequent purchasers and
encumbrancers of such mare or cow and of the offspring of such
service for one year after such recording.
3064. An action to enforce any lien created under Section 3062 may
be brought in any county wherein any of the property subject thereto
may be found, and the plaintiff is entitled to the remedies provided
in Section 3065 upon complying with such section, which is hereby
made applicable to the proceedings in such action.
3064.1. Every person who wilfully advertises any cattle, horse,
sheep, swine, or other domestic animal for purposes of copulation or
profit as having a pedigree other than the true pedigree of such
animal shall forfeit all right by law to collect pay for the services
of such animal.
3065. Any person who shall, by his own labor, or by using his
livestock, machinery or appliances, or both, do or perform any work
or render any service in connection with felling, preparing or
transporting any logs, or in manufacturing lumber or other timber
products from such logs, including the production of tanbark, shall
have a lien upon any and all of such logs and upon any and all of the
lumber and other timber products manufactured therefrom, whether
said work was done or service was rendered on the logs themselves, or
any of them, or in manufacturing the lumber or other timber products
from them, for the value of such labor done and for the value of the
use of such livestock, machinery and appliances, or both, whether
said work was done or service was rendered at the instance of the
owner of such logs or timber products manufactured therefrom, or of
any other person acting by his authority or under him, directly or
indirectly, as contractor or otherwise; and every contractor,
subcontractor or other person having charge of the felling, preparing
or transporting of the said logs or of their manufacture into timber
products shall be held to be the agent of the said owner for the
purposes of this section.
The liens provided for in this section shall attach from the date
of the commencement of such work or labor, or the date of the
commencement of the use of such livestock, machinery or appliances,
as the case may be, and shall be preferred liens, prior in dignity to
all other liens, claims or encumbrances, except the landowner's
claim for a reasonable stumpage in cases where the landowner himself
is not the direct employer or contractor, as the case may be. They
shall not be limited as to amount by any contract price agreed upon
between the owner of said logs or timber products manufactured
therefrom and any contractor, except as hereinafter provided, but
said several liens shall not in any case exceed in amount the
reasonable value of the labor done, or the reasonable value of the
use of the livestock, machinery or appliances for which the lien is
claimed, nor the price agreed upon for the same between the claimant
and the person by whom he was employed or with whom the agreement to
use livestock, machinery or appliances was made, nor in any case,
where the claimant was employed by a contractor, or subcontractor,
shall the lien extend to any labor or the use of any livestock,
machinery or appliances not embraced within, contemplated by, covered
by, or reasonably necessary to the execution of, the original
contract between the contractor and the owner of such logs or timber
products manufactured therefrom, or any modification thereof made by
or with the consent of such owner, and of which said contract, or
modification thereof, the claimant shall have had actual notice
before the performance of such labor or the use of such livestock,
machinery or appliances.
The recording of such original contract, or modification thereof,
in the office of the county recorder of the county in which the
timberland on which the work is to be done is situated or in which
the logs are to be manufactured into timber products, as the case may
be, before the commencement of the work, shall be equivalent to the
giving of such actual notice by the owner to all persons performing
work or using livestock, machinery or appliances thereunder. In case
said original contract shall, before the work is commenced, be so
recorded, together with a bond of the contractor with good and
sufficient sureties in an amount not less than fifty (50) percent of
the contract price named in said contract, which bond shall in
addition to any conditions for the performance of the contract, be
also conditioned for the payment in full of the claims of all persons
performing labor, or using livestock, machinery or appliances, in
the execution of such contract and shall also by its terms be made to
inure to the benefit of any and all persons who perform labor or use
livestock, machinery or appliances in the execution of the work to
be done under the contract so as to give such persons, and their
assigns or successors in interest, a right of action to recover upon
said bond in any suit brought to enforce the liens provided for in
this section, or in a separate suit brought on said bond, then the
court must, where it would be equitable so to do, restrict the
recovery under such liens to an aggregate amount equal to the amount
found to be due from the owner of the said logs or timber products
manufactured therefrom to the contractor, and render judgment against
the contractor and his sureties on said bond for any deficiency or
difference there may remain between said amount so found to be due to
the claimants for such labor and for the use of such livestock,
machinery and appliances. It is the intent and purpose of this
section to limit the owner's liability, in all cases, to the measure
of the contract price where he shall have filed or caused to be
filed, in good faith, with his original contract a valid bond with
good and sufficient sureties in the amount and upon the conditions
herein provided. It shall be lawful for the owner of such logs and
timber products to protect himself against any failure of the
contractor to perform his contract and make full payment for all work
done thereunder by exacting such bond or other security as he may
deem satisfactory.
3065a. The lien created by the last preceding section shall
continue in force for a period of 30 days from the time the person
claiming such lien shall have ceased to do or perform the work or
render the service for which said lien is claimed, while such logs,
lumber or other manufactured timber products are in the county in
which such labor was performed or service rendered, and said lien
shall cease at the expiration of the said 30 days unless the claimant
thereof, or his assignee or successor in interest, brings suit to
foreclose the same, in which case the lien continues in force until
the said lien foreclosure suit is finally determined and closed, and
in case such proceeding be not prosecuted to trial within two years
after the commencement thereof, the court may in its discretion
dismiss the same for want of prosecution. If any part of the property
on which the lien existed is removed from the said county, the lien
continues on the balance remaining in the county to the full extent
of the claim.
The plaintiff in any such lien foreclosure suit may have the logs,
lumber and other manufactured timber products upon which such lien
subsists attached, as provided in this code and the Code of Civil
Procedure.
Any number of persons claiming liens under this and the next
preceding section may join in the same action and when separate
actions are commenced, the court may consolidate them. Whenever upon
the sale of the property subject to the liens provided for in this
and the next preceding section, under the judgment or decree of
foreclosure of such lien or liens, there is a deficiency of proceeds,
the proceeds shall be divided pro rata among the lien claimants
whose liens are established, regardless of the order in which the
liens were created or the order in which the suits to foreclose same
were commenced, and judgment for the deficiency may be docketed
against the party personally liable therefor and his sureties, in
like manner and with like effect as in actions for the foreclosure of
mortgages.
Nothing contained in this or the next preceding section shall be
construed to impair or affect the right of any person to whom any
debt may be due for work done, or for the use of livestock, machinery
or appliances, to maintain a personal action to recover said debt
against the person liable therefor, or his sureties, either in
connection with the lien suit or in a separate action, and the person
bringing such personal action may take out a separate attachment
therefor, notwithstanding his lien or the amount of his debt, and in
his affidavit to procure an attachment he shall state that the
attachment is made pursuant to this section, and the judgment, if
any, obtained by the plaintiff in such personal action shall not be
construed to impair or merge any lien held by said plaintiff under
this or the next preceding section; provided, only, that any money
collected on said judgment shall be credited on the amount of such
lien in any action brought to enforce the same, in accordance with
the provisions of this section.
3065b. As used in the next preceding section the words "the time
the person claiming such lien shall have ceased to do or perform the
work or render the service for which said lien is claimed" shall be
construed to mean the final date work was done or services were
rendered on any of the logs, lumber or other manufactured timber
products on which the lien is claimed, so as to give the lien
claimant, or his assignee or successor in interest, a full thirty
days after final cessation of labor to bring suit to foreclose his
lien on any or all of the logs, lumber or other manufactured timber
products in question.
3065c. Whenever any faller, bucker, or millhand has a lien pursuant
to Section 3065 and has not been paid for his labor by the
contractor employing him, and money is owing to such contractor by a
mill operator, any such faller, bucker, or millhand, or several of
them acting jointly, may file with the Labor Commissioner an
affidavit stating the amount of wages unpaid to him or them and
describing the labor for which wages are owed and the period in which
such labor was performed. If the Labor Commissioner finds the
affidavit in order, he shall send to such mill operator a stop notice
directing such mill operator to withhold funds in the amount of the
unpaid wages from the contractor. The mill operator shall withhold
such funds pursuant to the stop notice for 15 days from the date of
service of the notice, subject to garnishment within that period by
the faller, bucker, or millhand or any assignee thereof.
3066. (a) Any garment, clothing, wearing apparel or houshold goods
remaining in the possession of a person, firm, partnership or
corporation, on which cleaning, pressing, glazing or washing has been
done or upon which alterations or repairs have been made, or on
which materials or supplies have been used or furnished, for a period
of 90 days or more after the completion of such work may be sold to
pay the reasonable or agreed charges and the costs of notifying the
owner or owners. Provided, however, that the person, firm,
partnership, or corporation to whom such charges are payable and
owing shall first notify the owner or owners of the time and place of
such sale. Provided further, that property that is to be placed in
storage after any of the services or labors mentioned herein, shall
not be affected by the provisions of this section.
(b) All garments, clothing, wearing apparel or household goods
placed in storage, or on which any of the services or labors
mentioned in the preceding section of this act have been performed
and then placed in storage by agreement and remaining in the
possession of a person, firm, partnership or corporation without the
reasonable or agreed charges having been paid for a period of 12
months, may be sold to pay said charges. Provided that the person,
firm, partnership or corporation to whom the charges are payable,
shall first notify the owner or owners thereof of the time and place
of sale. Provided, however, that the persons, firms, partnerships, or
corporations operating as warehouses or warehousemen shall not be
affected by this section.
(c) The posting or mailing of a registered letter, with a return
address marked thereon, addressed to the owner or owners, at their
address given at the time of delivery of the article or articles to a
person, firm, partnership or corporation to render any of the
services or labors set out in this act, stating the time and place of
sale, shall constitute notice. Said notice shall be posted or mailed
at least 30 days before the date of sale. The cost of posting or
mailing said letter shall be added to the charges.
Where the address of an owner is unknown, a posting of notice, for
a period of 30 days, at a prominent place in the receiving office of
the person, firm, partnership or corporation required to give the
notice is sufficient.
(d) The person, firm, partnership or corporation to whom the
charges are payable, shall, from the proceeds of the sale, deduct the
charges due plus the costs of notifying the owner and shall hold the
overplus, if any, subject to the order of the owner and shall
immediately thereafter mail to the owner thereof at his address, if
known, a notice of the sale, the amount of the overplus, if any, due
him, and at any time within 12 months, upon demand by the owner, pay
to the owner said sums or overplus in his hands.
(e) All persons, firms, partnerships or corporations taking
advantage of this act must keep posted in a prominent place in their
receiving office or offices at all times one notice which shall read
as follows:
"All articles cleaned, pressed, glazed, laundered, washed, altered
or repaired and not called for in 90 days shall be sold to pay
charges." "All articles stored by agreement and charges not having
been paid for 12 months will be sold to pay charges."
3046. One who sells real property has a vendor's lien thereon,
independent of possession, for so much of the price as remains unpaid
and unsecured otherwise than by the personal obligation of the
buyer.
3047. Where a buyer of real property gives to the seller a written
contract for payment of all or part of the price, an absolute
transfer of such contract by the seller waives his lien to the extent
of the sum payable under the contract, but a transfer of such
contract in trust to pay debts, and return the surplus, is not a
waiver of the lien.
3048. The liens defined in Sections 3046 and 3050 are valid against
every one claiming under the debtor, except a purchaser or
incumbrancer in good faith and for value.
3050. One who pays to the owner any part of the price of real
property, under an agreement for the sale thereof, has a special lien
upon the property, independent of possession, for such part of the
amount paid as he may be entitled to recover back, in case of a
failure of consideration.
3051. Every person who, while lawfully in possession of an article
of personal property, renders any service to the owner thereof, by
labor or skill, employed for the protection, improvement,
safekeeping, or carriage thereof, has a special lien thereon,
dependent on possession, for the compensation, if any, which is due
to him from the owner for such service; a person who makes, alters,
or repairs any article of personal property, at the request of the
owner, or legal possessor of the property, has a lien on the same for
his reasonable charges for the balance due for such work done and
materials furnished, and may retain possession of the same until the
charges are paid; and foundry proprietors and persons conducting a
foundry business, have a lien, dependent on possession, upon all
patterns in their hands belonging to a customer, for the balance due
them from such customers for foundry work; and plastic fabricators
and persons conducting a plastic fabricating business, have a lien,
dependent on possession, upon all patterns and molds in their hands
belonging to a customer, for the balance due them from such customer
for plastic fabrication work; and laundry proprietors and persons
conducting a laundry business, and drycleaning establishment
proprietors and persons conducting a drycleaning establishment, have
a general lien, dependent on possession, upon all personal property
in their hands belonging to a customer, for the balance due them from
such customer for laundry work, and for the balance due them from
such customers for drycleaning work, but nothing in this section
shall be construed to confer a lien in favor of a wholesale
drycleaner on materials received from a drycleaning establishment
proprietor or a person conducting a drycleaning establishment; and
veterinary proprietors and veterinary surgeons shall have a lien
dependent on possession, for their compensation in caring for,
boarding, feeding, and medical treatment of animals.
This section shall have no application to any vessel, as defined
in Section 21 of the Harbors and Navigation Code, to any vehicle, as
defined in Section 670 of the Vehicle Code, which is subject to
registration pursuant to that code, to any manufactured home, as
defined in Section 18007 of the Health and Safety Code, to any
mobilehome, as defined in Section 18008 of the Health and Safety
Code, or to any commercial coach, as defined in Section 18001.8 of
the Health and Safety Code, whether or not the manufactured home,
mobilehome, or commercial coach is subject to registration under the
Health and Safety Code.
3051a. That portion of any lien, as provided for in the next
preceding section, in excess of three hundred dollars ($300) for any
work, services, or care, or in excess of two hundred dollars ($200)
for any safekeeping, rendered or performed at the request of any
person other than the holder of the legal title, shall be invalid,
unless prior to commencing any such work, service, care, or
safekeeping, the person claiming such lien shall give actual notice
in writing either by personal service or by registered letter
addressed to the holder of the legal title to such property, if
known.
3051.5. (a) A carrier has a lien on freight in its possession for
the total amount owed the carrier by the shipper for freightage,
charges for services and advances due on freight previously delivered
upon the promise of the shipper to pay freightage, charges and
advances, as provided in this section.
(b) The lien provided by this section shall not arise:
(1) Unless the carrier has notified the shipper, in writing, that
failure to pay billed charges may result in a lien on future
shipments, including the cost of storage and appropriate security for
the subsequent shipment held pursuant to this section.
(2) As to any freight which consists of perishable goods.
(c) Except as otherwise provided in this section, the notice and
sale provisions of Section 3052 shall apply to the sale of property
subject to a lien provided by this section.
(d) No sale of property subject to a lien provided by this section
may take place for at least 35 days from the date that possession of
the property is delivered to the carrier but the notice period set
forth in Section 3052 may run concurrently with the 35-day period
provided by this subdivision. In addition to the notices required by
Section 3052, the lienholder, at least 10 days prior to any sale of
the property, shall notify the shipper and the consignee of the
property, and each secured party having a perfected security interest
in the property, of the date, time and place of the intended sale.
This notice shall include the names of both the shipper and the
consignee and shall describe the property to be sold.
(e) Any perfected security interest in the property is prior to
the lien provided by this section. No sale of the property may be
concluded if the amount bid at the sale is not at least equal to the
total amount of all outstanding obligations secured by a perfected
security interest in the property. If the minimum bid required for
the sale of property pursuant to this subdivision is not received,
the lienholder shall promptly release the property to the legal owner
upon payment of the current amount for freightage, charges for
services and advances due for shipment of that property, not
including amounts due on freight previously delivered.
The proceeds of the sale shall be applied as follows:
(1) First, to secured parties having a perfected security
interest, in the amounts to which they are respectively entitled.
(2) Second, to the discharge of the lien provided by this section
and the costs of storage, appropriate security, and of the sale.
(3) The remainder, if any, to the legal owner of the property.
In the event of any violation by the lienholder of any provision
of this subdivision the lienholder shall be liable to any secured
party for all damages sustained by the secured party as a result
thereof plus all expenses reasonably and necessarily incurred in the
enforcement of the secured party's rights, including reasonable
attorney's fees and costs of suit.
(f) The shipper shall be liable to the consignee for any damage
which results from the failure of the property to reach the consignee
as scheduled due to the carrier's proper exercise of its lien rights
pursuant to this section. The measure of damages shall be determined
as set forth in Section 2713 of the Commercial Code.
3051.6. (a) Except as provided in subdivision (b), a carrier has a
lien on freight in its possession for the total amount owed to the
carrier by the owner or beneficial owner of the cargo being shipped
for the aggregate amount of any fines, penalties, costs, expenses, or
interest incurred by the carrier resulting from the inclusion of
false or erroneous information as to gross cargo weight in a written
or electronic certification provided by the owner, beneficial owner,
or person responsible for making the certification pursuant to
Section 508 of Title 49 of the United States Code.
(b) This section does not apply to any of the following freight:
(1) Perishable goods.
(2) Freight shipped by a means involving other than intermodal
transportation, as that term is defined by Section 508 of Title 49 of
the United States Code.
(3) Freight shipped by loaded containers or trailers having a
gross projected cargo weight, including packing material and pallets,
of less than 10,000 pounds.
(c) Any sale to foreclose a lien specified in this section shall
be conducted in accordance with Section 3052, except that (1) the
lien sale shall not take place for at least 35 days from the date
that possession of the property is delivered to the carrier, but the
notice period specified in Section 3052 may run concurrently with
this 35-day period and (2), in addition to the notices required by
Section 3052, at least 10 days prior to the sale of the property the
lienholder shall notify the shipper and consignee of the property of
the date, time, and place of the intended sale. This notice shall
contain the names of the shipper and consignee and shall generally
describe the property to be sold.
3052. If the person entitled to the lien provided in Section 3051
is not paid the amount due, and for which such lien is given, within
10 days after the same shall have become due, then such lienholder
may proceed to sell such property, or so much thereof as may be
necessary to satisfy such lien and costs of sale at public auction,
and by giving at least 10 days' but not more than 20 days' previous
notice of such sale by advertising in some newspaper published in the
county in which such property is situated; or if there be no
newspaper printed in such county, then by posting notice of sale in
three of the most public places in the town and at the place where
such property is to be sold, for 10 days previous to the date of the
sale; provided, however, that within 20 days after such sale, the
legal owner may redeem any such property so sold to satisfy such lien
upon the payment of the amount thereof, all costs and expenses of
such sale, together with interest on such sum at the rate of 12
percent per annum from the due date thereof or the date when the same
were advanced until the repayment. The proceeds of the sale must be
applied to the discharge of the lien and the cost of keeping and
selling the property; the remainder, if any, must be paid over to the
legal owner thereof.
3052a. Every person, firm, or corporation, engaged in performing
work upon any watch, clock or jewelry, for a price, shall have a lien
upon the watch, clock, or jewelry for the amount of any account that
may be due for the work done thereon. The lien shall also include
the value or agreed price, if any, of all materials furnished by the
lienholder in connection with the work. If any account for work done
or materials furnished shall remain unpaid for one year after
completing the work, the lienholder may, upon 30 days notice in
writing to the owner, specifying the amount due, and informing him
that the payment of the amount due within 30 days will entitle him to
redeem the property, sell any such article or articles at public or
bona fide private sale to satisfy the account. The proceeds of the
sale, after paying the expenses thereof, shall first be applied to
liquidate the indebtedness secured by the lien and the balance, if
any, shall be paid over to the owner.
The notice may be served by registered mail with return receipt
demanded, directed to the owner's last known address, or, if the
owner or his address be unknown, it may be posted in two public
places in the town or city where the property is located. Nothing
herein contained shall be construed as preventing the lienholder from
waiving the lien herein provided for suing upon the amount if he
elects to do so.
3052b. (a) The procedure in this section shall be an alternative to
the lien-sale procedure provided in Section 3052, but applies only
to liens under Section 3051 for charges not exceeding one hundred
fifty dollars ($150), exclusive of additional charges and interest
authorized by this section. As a condition precedent to using the
procedure specified in this section, the lienholder shall have done
all of the following:
(1) Provided the property owner with an accurate written summary
of the lien provisions of this section.
(2) Obtained the property owner's address and telephone number,
together with a written declaration signed by the property owner
stating that the property owner has read and understands the summary
provided pursuant to paragraph (1), at the time of entering into the
transaction from which the lien arose.
(3) Posted, at the time of the transaction from which the lien
arose, a notice which fully and fairly informs the public of the
substance of this section. The notice shall be posted in a location
clearly visible to the public in the lienholder's business premises.
(b) Any lienholder proceeding under this section shall notify the
owner of the property subject to the lien upon completion of the work
for which the lien is claimed. This notice shall be by first-class
mail.
(c) If a property owner who has actually received notice pursuant
to subdivision (b) fails to pay the charges for which the lien is
claimed for 30 days following receipt of the notice, the lienholder
may thereafter charge two dollars ($2) per day for storing the
property subject to the lien and these charges shall also be secured
by the lien.
(d) Not less than 30 days following the notice specified in
subdivision (b), the lienholder shall notify the property owner by
first-class mail that the property will be sold to satisfy the lien,
unless the charges are paid within 30 days following the mailing of
the notice.
(e) If the lienholder has complied with the notice requirements of
subdivisions (b) and (d), not less than 30 days have elapsed since
the mailing of the notice required by subdivision (d), and the
property owner has not fully paid the original charges for which the
lien is claimed plus any additional charges authorized by subdivision
(c), the lienholder may sell the property subject to the lien at a
public or bona fide private sale to satisfy the sum of those
obligations, all costs and expenses of the sale, and interest at the
rate of 12 percent per annum from 30 days following receipt of the
notice specified in subdivision (b) or the date the same were
advanced until repayment.
(f) However, the owner of the property sold pursuant to
subdivision (e) may redeem the property sold to satisfy the lien,
within 20 days following the sale, upon payment of all charges, costs
and expenses, and interest specified in subdivision (e).
(g) The proceeds of the sale shall first be applied to the
discharge of the lien, the costs of sale, and interest specified in
subdivision (e). The remainder, if any, shall be paid to the former
owner of the property so sold.
3052.5. (a) Sections 3052 and 3052b shall not apply to any service
dealer registered with the Bureau of Repair Services pursuant to
Chapter 20 (commencing with Section 9800) of Division 3 of the
Business and Professions Code if the dealer reasonably believes that
the serviced product is of nominal value. For purposes of this
section, nominal value shall be ascertained as follows: the product
is not readily salable for more than the legitimate charges against
it, and either the original retail value of the product was under two
hundred dollars ($200) and the product is over three years old, or
the original retail value is over two hundred dollars ($200) and the
product is over six years old.
Service dealers may use any available materials or information,
including, but not limited to, industry publications, code dates,
sales records, or receipts to assist in determining value and age of
the serviced product.
(b) A service dealer may select one of the following alternative
methods for the disposal of unclaimed serviced products determined to
have a value as specified in subdivision (a):
(1) The service dealer may provide the owner of the product with
the following written notice to be mailed following completion of
work on the serviced product:
DATE BROUGHT
IN_______________________________________________
DATE
MAILED___________________________________________
DATE PRODUCT TO BE SOLD IF NOT
CLAIMED
_________________________________________________
NOTICE: YOUR PRODUCT HAS BEEN DETERMINED BY THIS SERVICE DEALER TO
BE ONE WHICH WAS EITHER ORIGINALLY SOLD FOR LESS THAN $200 AND IS NOW
OVER THREE YEARS OLD OR ONE WHICH WAS ORIGINALLY SOLD FOR MORE THAN
$200 AND WHICH IS NOW OVER SIX YEARS OLD AND THE CHARGES FOR
SERVICING YOUR PRODUCT WILL EXCEED ITS CURRENT VALUE. UNDER
CALIFORNIA CIVIL CODE SECTION 3052.5(a) IF YOU OR YOUR AGENT FAIL TO
CLAIM YOUR PRODUCT WITHIN 90 DAYS AFTER THE DEALER MAILS A COPY OF
THIS NOTICE TO YOU IT MAY BE SOLD OR OTHERWISE DISPOSED OF BY HIM OR
HER.
The notice shall be sent by certified mail, return receipt
requested. A serviced product may be disposed of 90 days after the
date of deliverance evidenced by the signature in the returned
receipt.
(2) The service dealer may publish public notice of the intended
sale in a newspaper of general circulation. The notice shall contain
a description of the serviced product, the name of the serviced
product owner, and the time by which and place where the product may
be redeemed. The notice shall be published for a minimum of five
times. A serviced product may be disposed of 90 days after the last
date of publication.
(3) A service dealer may, upon receipt of any product to be
serviced by him or her, provide the owner of the product with the
following notice, written in at least 10-point boldface type:
DATE BROUGHT
IN_______________________________________________
DATE
MAILED___________________________________________
DATE PRODUCT TO BE SOLD IF NOT
CLAIMED
_________________________________________________
NOTICE: YOUR PRODUCT HAS BEEN DETERMINED BY THIS SERVICE DEALER TO
BE ONE WHICH WAS EITHER ORIGINALLY SOLD FOR LESS THAN $200 AND IS NOW
OVER THREE YEARS OLD OR ONE WHICH WAS ORIGINALLY SOLD FOR MORE THAN
$200 AND WHICH IS NOW OVER SIX YEARS OLD AND THE CHARGES FOR
SERVICING YOUR PRODUCT WILL EXCEED ITS CURRENT VALUE. UNDER
CALIFORNIA CIVIL CODE SECTION 3052.5(a) IF YOU OR YOUR AGENT FAIL TO
CLAIM YOUR PRODUCT WITHIN 90 DAYS AFTER THE DEALER MAILS A COPY OF
THIS NOTICE TO YOU IT MAY BE SOLD OR OTHERWISE DISPOSED OF BY HIM OR
HER.
PRINT YOUR NAME AND MAILING ADDRESS WHERE NOTICE MAY BE SENT TO YOU
IN THE SPACE PROVIDED BELOW AND SIGN WHERE INDICATED TO SHOW THAT YOU
HAVE READ THIS NOTICE.
___________________________________
(Print Name)
______________________________________
(Street Address)
____________________________________________
(City, State and ZIP Code)
IF YOU DO NOT AGREE WITH THE ABOVE DETERMINED VALUE OF YOUR ITEM, DO
NOT SIGN THIS DOCUMENT.
Signature: ___________________________________
(Owner or Agent)
This notice shall be signed, addressed, and dated by the owner,
with a copy to be retained by both the owner and the service dealer.
At the completion of service, the service dealer shall by first-class
mail, mail a completed copy of the notice to the owner of the
serviced product at the address given on the notice form. A serviced
product may be disposed of 90 days after the date of mailing.
(c) For purposes of this section, an owner is the person or agent
who authorizes the original service or repair, or delivers the
product to the service dealer.
3053. A factor has a general lien, dependent on possession, for all
that is due to him as such, upon all articles of commercial value
that are intrusted to him by the same principal.
3054. (a) A banker, or a savings and loan association, has a
general lien, dependent on possession, upon all property in his or
her hands belonging to a customer, for the balance due to the banker
or savings and loan association from the customer in the course of
the business.
(b) The exercise of this lien with respect to deposit accounts
shall be subject to the limitations and procedures set forth in
Section 864 or 6660 of the Financial Code.
3059. The liens of mechanics, for materials and services upon real
property, are regulated by Chapter 2 (commencing with Section 3109)
of Title 15 of this part.
3059. The liens of mechanics, for materials and services upon real
property, are regulated by Chapter 4 (commencing with Section 8400)
of Title 2 of Part 6 of Division 4.
3060. Any person who performs labor in any mining claim or claims,
or in or upon any real property worked as a mine, either in the
development thereof or in working thereon by the subtractive process,
or furnishes materials to be used or consumed therein, has a lien
upon the same and the works owned and used by the owners for milling
or reducing the ores from the same, for the value of the work or
labor done or materials furnished by each respectively, whether done
or furnished at the instance of the owner of such mining claim or
claims or real property worked as a mine, or his agent, and every
contractor, subcontractor, superintendent, or other person having
charge of any mining or work or labor performed in and about such
mining claim or claims or real property worked as a mine, either as
lessee or under a working bond or contract thereon shall be held to
be the agent of the owner for the purposes of this section. The liens
provided for by this section shall be enforced in the same manner as
those provided for by Title 15 (commencing with Section 3082), Part
4, Division 3.
3060. (a) As used in this section, "mine" means a mining claim or
real property worked on as a mine.
(b) Any person who performs labor in a mine, either in its
development or in working on it by the subtractive process, or
furnishes materials to be used or consumed in it, has a lien upon the
mine and the works owned and used by the owners for milling or
reducing the ores from the mine, for the value of the work or labor
done or materials furnished by each, whether done or furnished at the
instance of the owner of the mine, or the owner's agent, and every
contractor, subcontractor, superintendent, or other person having
charge of any mining or work or labor performed in and about the
mine, either as lessee or under a working bond or contract thereon
shall be held to be the agent of the owner for the purposes of this
section. The liens provided for by this section shall be enforced in
the same manner as those provided for by Part 6 (commencing with
Section 8000) of Division 4.
3061. Every person performing work or labor in, with, about, or
upon any barley crusher, threshing machine or engine, horsepower,
wagon, or other appliance thereof, while engaged in crushing or
threshing, has a lien thereon to the extent of the value of his
services. Such lien extends for ten days after any such person ceases
such work or labor; provided, within that time, an action is brought
to recover the amount of the claim. If judgment is given in favor of
the plaintiff in any such action, and it is further found that he is
entitled to a lien under the provisions of this section, property
subject thereto, or so much thereof as may be necessary, may be sold
to satisfy such judgment; but if several judgment have been recovered
against the same property for the enforcement of such liens, the
proceeds of the sale must be divided pro rata among the judgment
creditors.
3061.5. (a) Except as provided in subdivision (d), any person who
as an employee shall, by his or her own labor, do or perform any work
harvesting or transporting harvested crops or farm products as
defined in Section 55403 of the Food and Agricultural Code which are
owned and grown or produced by a limited partnership as defined in
Section 15501 of the Corporations Code, has a lien upon any and all
of the severed crops or severed farm products or proceeds from their
sale for the value of the labor done up to a maximum of earnings for
two weeks. The liens attach whether the work was done at the instance
of the owner who is the grower or producer of severed crops or
severed farm products or of any other person acting by or under the
owner's authority, directly or indirectly, as contractor or
otherwise; and every contractor, subcontractor, or other person
having charge of the harvesting or transporting of the severed crops
or severed farm products shall be held to be the agent of the owner
for the purposes of this section.
(b) The liens provided for in this section attach from the date of
the commencement of the work or labor, and are preferred liens,
prior in dignity to all other liens, claims, or encumbrances. Except
as provided in subdivisions (a) and (c) they shall not be limited as
to amount by any contract price agreed upon between the owner who is
the grower or producer of the severed crops or severed farm products
and any contractor, but the several liens shall not in any case
exceed in amount the reasonable value of the labor done, nor the
price agreed upon for the labor between the claimant and his or her
employer. In no event, where the claimant was employed by a
contractor, or subcontractor, shall the lien extend to any labor not
contemplated by, covered by, or reasonably necessary to the execution
of, the original contract between the contractor and the owner who
is the grower or producer of severed crops or severed farm products
and of which contract, or modification thereof, the claimant had
actual notice before the performance of the labor.
(c) The maximum liability of severed crops, severed farm products
or the proceeds from their sale subject to liens under this section
is limited to the lesser of actual proved claims or 25 percent of the
fair market value of the severed crops, severed farm products, or 25
percent of the proceeds after their sale.
(d) No person has a lien if the owner who is the grower or
producer of the severed crops, severed farm products, or their
proceeds, who otherwise would be subject to a lien pursuant to
subdivision (a), either gives directly, or requires a person or
entity hired or used to furnish labor in connection with harvesting
or transporting the severed crops, to give to the Labor Commissioner
prior to the harvest and for 45 days after its completion, a bond
executed by an admitted surety insurer in an amount and form
acceptable to the Labor Commissioner, which is conditioned upon the
payment of all wages found to be due and unpaid in connection with
such operations under any provision of this code.
(e) A buyer in the ordinary course of business, as defined in
paragraph (9) of subdivision (b) of Section 1201 of the Commercial
Code, shall take free of any security interest created by this
section, notwithstanding the fact that the lien is perfected and the
buyer knows of its existence.
3061.6. (a) The lien created by Section 3061.5 shall continue in
force for a period of 45 days from the time the person claiming such
lien shall have ceased to do or perform the work for which such lien
is claimed, and such lien shall cease at the expiration of the 45
days unless the claimant, his or her assignee or successor in
interest, files a claim with the Labor Commissioner or brings suit to
foreclose the lien in which case the lien continues in force until
the claim filed with the Labor Commissioner or the lien foreclosure
suit is finally determined and closed. If a claim is filed with the
Labor Commissioner, the Labor Commissioner shall act upon and finally
determine such claim within 180 days after filing. In case such
proceedings are not prosecuted to trial within two years after the
commencement thereof, the court may in its discretion dismiss the
same for want of prosecution.
(b) Upon filing a claim with the Labor Commissioner, the Labor
Commissioner, if the owner who is the grower or producer has failed
to satisfy the conditions of subdivision (d) of Section 3061.5, shall
determine whether or not such owner of the severed crops, severed
farm products, or their proceeds is capable financially of satisfying
such claim. For purposes of this determination, it shall be proper
for the Labor Commissioner after investigation to take into account
the potential liability faced by such owner of such severed crops,
severed farm products, or their proceeds. If the Labor Commissioner
determines that a lien is necessary to protect the interest of
claimants, the Labor Commissioner shall file such lien on the crop,
the severed farm product, or their proceeds and notify, in writing,
the owner and notify, in writing, all persons who have filed
financing statements on the crop, the farm product, or their proceeds
pursuant to the provisions of the Commercial Code.
(c) The plaintiff in any such lien foreclosure suit, at the time
of issuing the summons or at any time afterwards, may have the
severed crops or severed farm products or proceeds from their sale
upon which such lien subsists attached, as provided in this code and
Title 6.5 (commencing with Section 488.010) of Part 2 of the Code of
Civil Procedure, upon delivering to the clerk an affidavit, by or on
behalf of the plaintiff, showing that: (1) the plaintiff, or his
assignor or predecessor in interest, performed labor in harvesting or
transporting the severed crops or severed farm products or both; (2)
that such labor has not been paid for; (3) that the sum for which
the attachment is asked does not exceed the lesser of the reasonable
value of the services rendered or if earnings, does not exceed the
lesser of two weeks unpaid earnings or reasonable value of actual
services rendered, or 25 percent of the fair market value of the
severed crop or severed farm product; and (4) that the attachment is
not sought and the action is not brought to hinder, delay or defraud
any creditor or creditors of any defendant.
(d) Any number of persons claiming liens under this section and
Section 3061.5 may join in the same action and when separate actions
are commenced, the court may consolidate them. If after sale of the
property subject to the liens provided for in this section and
Section 3061.5, under the judgment or decree of foreclosure of such
lien or liens, there is a deficiency of proceeds, the proceeds shall
be divided pro rata among the lien claimants whose liens are
established, regardless of the order in which the liens were created
or the order in which the suits to foreclose same were commenced.
Judgment for the deficiency may be docketed against the party
personally liable therefor and his sureties.
(e) Nothing contained in this section or Section 3061.5 shall be
construed to impair or affect the right of any person to whom any
debt may be due for work done, to maintain a personal action to
recover such debt against the person liable therefor, or his
sureties, either in connection with the lien suit or in a separate
action. The person bringing such personal action may take out a
separate attachment therefor, notwithstanding his or her lien, and in
his or her affidavit to procure an attachment need not state that
his or her demand is not secured by a lien, and the judgment, if any,
obtained by the plaintiff in such personal action shall not be
construed to impair or merge any lien held by the plaintiff under
this section or Section 3061.5; provided that any money collected on
the judgment shall be credited on the amount of such lien in any
action brought to enforce the same, in accordance with the provisions
of this section.
(f) If the lien has attached to perishable goods, the lienholder
may, during the period for which the lien is in effect and prior to
the filing of a foreclosure suit, obtain a court order for the sale
of such perishable goods pursuant to the provisions of Section
488.530 of the Code of Civil Procedure; provided, however, that in
the event that such perishable crop is subject in whole or in part to
a valid marketing agreement which is in force between the owner who
is the grower or producer and an agricultural marketing cooperative
organized under the Food and Agricultural Code or similar laws of
other states, the agricultural marketing cooperative may purchase or
otherwise take possession or custody of such crop or portion thereof
according to the terms of the marketing agreement. Any moneys due and
payable to such owner who is the grower or producer in return for
such crop shall be paid by the agricultural marketing cooperative to
the court.
3062. Every owner or person having in charge any stallion, jack, or
bull, used for propagating purposes, has a lien for the agreed price
of its service upon any mare or cow and upon the offspring of such
service, unless some willfully false representation concerning the
breeding or pedigree of such stallion, jack, or bull has been made or
published by the owner or person in charge thereof, or by some other
person, at the request or instigation of such owner or person in
charge.
3063. Every claimant of a lien provided for in the preceding
section must, within 90 days after the service on account of which
the lien is claimed, record in the office of the county recorder of
the county where the mare or cow subject thereto is kept, a verified
claim containing a particular description of the mare or cow, the
date and place of service, the name of the owner or reputed owner of
such mare or cow, a description by name, or otherwise, of the
stallion, jack, or bull performing the service, the name of the owner
or person in charge thereof, and the amount of the lien claimed.
Such claim, so recorded, is notice to subsequent purchasers and
encumbrancers of such mare or cow and of the offspring of such
service for one year after such recording.
3064. An action to enforce any lien created under Section 3062 may
be brought in any county wherein any of the property subject thereto
may be found, and the plaintiff is entitled to the remedies provided
in Section 3065 upon complying with such section, which is hereby
made applicable to the proceedings in such action.
3064.1. Every person who wilfully advertises any cattle, horse,
sheep, swine, or other domestic animal for purposes of copulation or
profit as having a pedigree other than the true pedigree of such
animal shall forfeit all right by law to collect pay for the services
of such animal.
3065. Any person who shall, by his own labor, or by using his
livestock, machinery or appliances, or both, do or perform any work
or render any service in connection with felling, preparing or
transporting any logs, or in manufacturing lumber or other timber
products from such logs, including the production of tanbark, shall
have a lien upon any and all of such logs and upon any and all of the
lumber and other timber products manufactured therefrom, whether
said work was done or service was rendered on the logs themselves, or
any of them, or in manufacturing the lumber or other timber products
from them, for the value of such labor done and for the value of the
use of such livestock, machinery and appliances, or both, whether
said work was done or service was rendered at the instance of the
owner of such logs or timber products manufactured therefrom, or of
any other person acting by his authority or under him, directly or
indirectly, as contractor or otherwise; and every contractor,
subcontractor or other person having charge of the felling, preparing
or transporting of the said logs or of their manufacture into timber
products shall be held to be the agent of the said owner for the
purposes of this section.
The liens provided for in this section shall attach from the date
of the commencement of such work or labor, or the date of the
commencement of the use of such livestock, machinery or appliances,
as the case may be, and shall be preferred liens, prior in dignity to
all other liens, claims or encumbrances, except the landowner's
claim for a reasonable stumpage in cases where the landowner himself
is not the direct employer or contractor, as the case may be. They
shall not be limited as to amount by any contract price agreed upon
between the owner of said logs or timber products manufactured
therefrom and any contractor, except as hereinafter provided, but
said several liens shall not in any case exceed in amount the
reasonable value of the labor done, or the reasonable value of the
use of the livestock, machinery or appliances for which the lien is
claimed, nor the price agreed upon for the same between the claimant
and the person by whom he was employed or with whom the agreement to
use livestock, machinery or appliances was made, nor in any case,
where the claimant was employed by a contractor, or subcontractor,
shall the lien extend to any labor or the use of any livestock,
machinery or appliances not embraced within, contemplated by, covered
by, or reasonably necessary to the execution of, the original
contract between the contractor and the owner of such logs or timber
products manufactured therefrom, or any modification thereof made by
or with the consent of such owner, and of which said contract, or
modification thereof, the claimant shall have had actual notice
before the performance of such labor or the use of such livestock,
machinery or appliances.
The recording of such original contract, or modification thereof,
in the office of the county recorder of the county in which the
timberland on which the work is to be done is situated or in which
the logs are to be manufactured into timber products, as the case may
be, before the commencement of the work, shall be equivalent to the
giving of such actual notice by the owner to all persons performing
work or using livestock, machinery or appliances thereunder. In case
said original contract shall, before the work is commenced, be so
recorded, together with a bond of the contractor with good and
sufficient sureties in an amount not less than fifty (50) percent of
the contract price named in said contract, which bond shall in
addition to any conditions for the performance of the contract, be
also conditioned for the payment in full of the claims of all persons
performing labor, or using livestock, machinery or appliances, in
the execution of such contract and shall also by its terms be made to
inure to the benefit of any and all persons who perform labor or use
livestock, machinery or appliances in the execution of the work to
be done under the contract so as to give such persons, and their
assigns or successors in interest, a right of action to recover upon
said bond in any suit brought to enforce the liens provided for in
this section, or in a separate suit brought on said bond, then the
court must, where it would be equitable so to do, restrict the
recovery under such liens to an aggregate amount equal to the amount
found to be due from the owner of the said logs or timber products
manufactured therefrom to the contractor, and render judgment against
the contractor and his sureties on said bond for any deficiency or
difference there may remain between said amount so found to be due to
the claimants for such labor and for the use of such livestock,
machinery and appliances. It is the intent and purpose of this
section to limit the owner's liability, in all cases, to the measure
of the contract price where he shall have filed or caused to be
filed, in good faith, with his original contract a valid bond with
good and sufficient sureties in the amount and upon the conditions
herein provided. It shall be lawful for the owner of such logs and
timber products to protect himself against any failure of the
contractor to perform his contract and make full payment for all work
done thereunder by exacting such bond or other security as he may
deem satisfactory.
3065a. The lien created by the last preceding section shall
continue in force for a period of 30 days from the time the person
claiming such lien shall have ceased to do or perform the work or
render the service for which said lien is claimed, while such logs,
lumber or other manufactured timber products are in the county in
which such labor was performed or service rendered, and said lien
shall cease at the expiration of the said 30 days unless the claimant
thereof, or his assignee or successor in interest, brings suit to
foreclose the same, in which case the lien continues in force until
the said lien foreclosure suit is finally determined and closed, and
in case such proceeding be not prosecuted to trial within two years
after the commencement thereof, the court may in its discretion
dismiss the same for want of prosecution. If any part of the property
on which the lien existed is removed from the said county, the lien
continues on the balance remaining in the county to the full extent
of the claim.
The plaintiff in any such lien foreclosure suit may have the logs,
lumber and other manufactured timber products upon which such lien
subsists attached, as provided in this code and the Code of Civil
Procedure.
Any number of persons claiming liens under this and the next
preceding section may join in the same action and when separate
actions are commenced, the court may consolidate them. Whenever upon
the sale of the property subject to the liens provided for in this
and the next preceding section, under the judgment or decree of
foreclosure of such lien or liens, there is a deficiency of proceeds,
the proceeds shall be divided pro rata among the lien claimants
whose liens are established, regardless of the order in which the
liens were created or the order in which the suits to foreclose same
were commenced, and judgment for the deficiency may be docketed
against the party personally liable therefor and his sureties, in
like manner and with like effect as in actions for the foreclosure of
mortgages.
Nothing contained in this or the next preceding section shall be
construed to impair or affect the right of any person to whom any
debt may be due for work done, or for the use of livestock, machinery
or appliances, to maintain a personal action to recover said debt
against the person liable therefor, or his sureties, either in
connection with the lien suit or in a separate action, and the person
bringing such personal action may take out a separate attachment
therefor, notwithstanding his lien or the amount of his debt, and in
his affidavit to procure an attachment he shall state that the
attachment is made pursuant to this section, and the judgment, if
any, obtained by the plaintiff in such personal action shall not be
construed to impair or merge any lien held by said plaintiff under
this or the next preceding section; provided, only, that any money
collected on said judgment shall be credited on the amount of such
lien in any action brought to enforce the same, in accordance with
the provisions of this section.
3065b. As used in the next preceding section the words "the time
the person claiming such lien shall have ceased to do or perform the
work or render the service for which said lien is claimed" shall be
construed to mean the final date work was done or services were
rendered on any of the logs, lumber or other manufactured timber
products on which the lien is claimed, so as to give the lien
claimant, or his assignee or successor in interest, a full thirty
days after final cessation of labor to bring suit to foreclose his
lien on any or all of the logs, lumber or other manufactured timber
products in question.
3065c. Whenever any faller, bucker, or millhand has a lien pursuant
to Section 3065 and has not been paid for his labor by the
contractor employing him, and money is owing to such contractor by a
mill operator, any such faller, bucker, or millhand, or several of
them acting jointly, may file with the Labor Commissioner an
affidavit stating the amount of wages unpaid to him or them and
describing the labor for which wages are owed and the period in which
such labor was performed. If the Labor Commissioner finds the
affidavit in order, he shall send to such mill operator a stop notice
directing such mill operator to withhold funds in the amount of the
unpaid wages from the contractor. The mill operator shall withhold
such funds pursuant to the stop notice for 15 days from the date of
service of the notice, subject to garnishment within that period by
the faller, bucker, or millhand or any assignee thereof.
3066. (a) Any garment, clothing, wearing apparel or houshold goods
remaining in the possession of a person, firm, partnership or
corporation, on which cleaning, pressing, glazing or washing has been
done or upon which alterations or repairs have been made, or on
which materials or supplies have been used or furnished, for a period
of 90 days or more after the completion of such work may be sold to
pay the reasonable or agreed charges and the costs of notifying the
owner or owners. Provided, however, that the person, firm,
partnership, or corporation to whom such charges are payable and
owing shall first notify the owner or owners of the time and place of
such sale. Provided further, that property that is to be placed in
storage after any of the services or labors mentioned herein, shall
not be affected by the provisions of this section.
(b) All garments, clothing, wearing apparel or household goods
placed in storage, or on which any of the services or labors
mentioned in the preceding section of this act have been performed
and then placed in storage by agreement and remaining in the
possession of a person, firm, partnership or corporation without the
reasonable or agreed charges having been paid for a period of 12
months, may be sold to pay said charges. Provided that the person,
firm, partnership or corporation to whom the charges are payable,
shall first notify the owner or owners thereof of the time and place
of sale. Provided, however, that the persons, firms, partnerships, or
corporations operating as warehouses or warehousemen shall not be
affected by this section.
(c) The posting or mailing of a registered letter, with a return
address marked thereon, addressed to the owner or owners, at their
address given at the time of delivery of the article or articles to a
person, firm, partnership or corporation to render any of the
services or labors set out in this act, stating the time and place of
sale, shall constitute notice. Said notice shall be posted or mailed
at least 30 days before the date of sale. The cost of posting or
mailing said letter shall be added to the charges.
Where the address of an owner is unknown, a posting of notice, for
a period of 30 days, at a prominent place in the receiving office of
the person, firm, partnership or corporation required to give the
notice is sufficient.
(d) The person, firm, partnership or corporation to whom the
charges are payable, shall, from the proceeds of the sale, deduct the
charges due plus the costs of notifying the owner and shall hold the
overplus, if any, subject to the order of the owner and shall
immediately thereafter mail to the owner thereof at his address, if
known, a notice of the sale, the amount of the overplus, if any, due
him, and at any time within 12 months, upon demand by the owner, pay
to the owner said sums or overplus in his hands.
(e) All persons, firms, partnerships or corporations taking
advantage of this act must keep posted in a prominent place in their
receiving office or offices at all times one notice which shall read
as follows:
"All articles cleaned, pressed, glazed, laundered, washed, altered
or repaired and not called for in 90 days shall be sold to pay
charges." "All articles stored by agreement and charges not having
been paid for 12 months will be sold to pay charges."
