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By John W. Ralls
Howrey LLP
Ivy
Trucking was hired by a subcontractor to haul fill to a
California Department of Transportation freeway project but
was not paid. Ivy served a stop notice and then sued to
enforce the stop notice. The trial court ruled that Ivy
was not entitled to serve a stop notice. The Court of Appeal
reversed. Ivy Trucking, Inc. v. Creston Brandon Corp.,
2000 Daily Journal D.A.R. 11105 (Cal.App. 2000)
California
Civil Code §3188 provides that all persons named in
Civil Code §3110 are entitled to serve a stop notice.
Civil Code §3110 names "all persons and laborers…
performing labor upon or bestowing skill or other necessary
services on, or furnishing materials… to be used or
consumed in… a work of improvement… whether done
or furnished at the instance of the owner or of any person
acting by his authority or under him as contractor or otherwise."
Civil
Code §3110 continues, "For the purposes of this
chapter, every contractor, subcontractor, sub-subcontractor,
architect, builder, or other person having charge of a work
of improvement or portion thereof shall be held to be the
agent of the owner."
The
court wrote that, as a general rule, a person who transports
materials to a job site is not entitled enforce a stop notice
because the "transportation of materials does not constitute
labor, services, or materials within the meaning of section
3110, citing Adams v. Burbank, 103 Cal. 646, 648,
651 (1894). However, when the transportation services are
rendered under contract with a statutory agent of the owner,
such as a subcontractor, the hauler does come within CC
§3110.
"In
this case, because Ivy contracted to haul dirt for [a subcontractor]
who… was the statutory agent of CalTrans, Ivy was entitled
to enforce its rights arising out of the stop notice."
Had Ivy been hired by the supplier of fill, Ivy would not
have had stop notice rights.
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For more information about the issues covered in this report, please contact John Ralls in our San Francisco office at 415-848-3362 or at rallsj@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2000 Howrey LLP
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