Filed 9/25/14 Travelers Casualty etc. v. Berger Foundation CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA, Plaintiff and Appellant,

v.
THE H.N. & FRANCES C. BERGER FOUNDATION, Defendant and Respondent. G049802 (Supe r. Ct. No. INC085539)

O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, Randall Donald White, Judge. Reversed. Anderson, McPharlin & Conners, MarkE. Aronson and Vanessa S. Davila for Plaintiff and Appellant. Hennelly & Grossfeld and Ronald K. Giller for Defendant and Respondent.

* * *2 INTRODUCTION Travelers Casualty & Surety Co mpany of America (Travelers) was substituted into this action as real party in in terest to assert plaintiff Granite Construction Company’s (Granite) claim for foreclosure of a mechanic’s lien. Travelers appeals from the judgment entered after the trial court granted defendant The H.N. & Frances C. Berger Foundation’s (Berger) motion for summary judgment. We reverse. Triable issues
of material fact exist as to whether Granite’s mechanic’s lien was effective under Civil
Code former section 3097. 1 The trial court therefore erred by granting summary judgment. In our opini on, we address the most significant triable issues of material fact in parts III., IV., and V. of the Discussion section.

SUMMARY OF THE PARTIES’ EVIDENCE In 2003, Berger, a charitable foundati on, acquired a 446-acre tract of land in Palm Desert. Berger developed part of the property into a fu lly functional 240-acre golf course and chose not to develop the rema inder of the property. Berger gifted the golf course to the Bob Hope Desert Classic golf tournament and sought a developer to purchase the remainder of the property. In September 2006, Desert Gold Ventures, LLC (Desert Gold), was interested in acquiring the property from Be rger to develop a resort named the Delfino Resort. Part of Desert Gold’s plan was to co ntract with Granite, a contractor, to begin the development of the property by making impr ovements on the sides of Varner Road located on the property. At an unspecified date, but no later than November 7, 2006, Berger dedicated Varner Road to the Co unty of Riverside (the County).

1 Title 15 of part 4 of di vision 3 of the Civil Code, addressing mechanic’s liens, was repealed as of July 1, 2012. (Stats. 2010, ch. 697, § 16.) All further statutory references are to former sections of th e Civil Code unless otherwise specified.3 Copies of e-mails exchanged betwee n representatives of Granite, Desert Gold, and CalVest Industries (CalVest) (C alVest was later engaged to serve as construction manager of the pr oject) included an e-mail by A ttorney Sara D. Harris of Rutter Hobbs & Davidoff Incorp orated (representing Desert Gold), dated September 26, 2006, stating: “I spoke to the Berger Found ation’s attorney regarding the unlikely event the buyer does not acquire the property and whether the seller would assume the obligations of the ‘Owner’ under the Granite contract. The resp onse from the Berger Foundation is ‘no’. They believe that the c ontract price is too high. Apparently, the Berger Foundation is acting as the contractor and retaining subcontractors to do the work on their portion of Varner Road. As stated in an email I receiv ed from the seller’s attorney, the Berger Foundation will ‘indicat e to Granite that they are allowing the roadwork to commence pr ior to Desert Gold closing of the property but this could not involve any undertaking by the Foundation to honor Desert Gold’s contract with Granite.’ [¶] I will check with the Foundation’ s counsel to see if the Berger Foundation will agree to assume the responsibility of pa ying Granite for any work performed on the property prior to date the Gran ite contract is terminated due [to] the failure of escrow to close on the purchase of the property by Desert Gold.” 2
In October 2006, Desert Gold entere d into an agreemen t with Granite, in which Granite agreed to perform road and water improvement work along the approximately one-mile stretch of Varner Road (the Granite contract). The work included widening Varner Road from two lanes to six lanes (which required curb, gutter, asphalt, sidewalk, and storm drain work) a nd installing a 24-inch water line along the length of the road and a domes tic water crossing underneath th e road. The amount of the

2 Among raising a host of other evidentiary objections in support of its motion for summary judgment, Berger argued in the tr ial court that the e- mail exchange, cited ante , was unauthenticated and inadmissible. The trial court overruled all evidentiary objections. Berger does not argue on appeal th at the trial court abused its discretion with regard to any evidentiary objection rulings.4 Granite contract was $8,225,000. Also in Oc tober, Desert Gold contracted with CalVest to provide Desert Gold construction mana gement services at the project. Although Berger was still the owner of the property at the time Desert Gold and Granite entered into the Granite contract, Berger was not a party to that agreement.
The record shows th e normal chronology of events for a construction project of that kind
did not occur because there was some time pressure in completing the Varner Road construction. The Bob Hope Desert Classic golf tournament, referred to by one witness as the “king of the desert,” was scheduled to be held on January 17, 2007. Varner Road, therefore, needed to be wi dened and otherwise improved to allow better public access to
the event. On November 7, 2006, the County approved a final tract map of the property, which divided the property into lo ts A through C and 1 through 10. Varner
Road was identified on the tract map as lot A; lot A adjoined various lots in the approved tract. The tract map also reflected that Berg er had unconditionally dedicated lot A to the County. Granite’s accounting clerk, Kim Geor ge, prepared two preliminary 20-day notices, dated December 1, 2006. The pre liminary 20-day notices identified Scripps Investments & Loans, Inc. (Scripps), as the lender, and Desert Gold as the “owner/reputed owner.” The notices also esti mated $8,225,000 as the total price of labor, services, equipment, or materials under the Gr anite contract. George prepared the notices
based on information Granite had received fro m CalVest and Desert Gold. George did not review any public records to confirm Granite’s information; it was not Granite’s practice to do so. An e-mail containing “p reliminary notice information” (capitalization omitted), which Tim Reynolds of Granite had received from Michael Oliphant of CalVest, identified Desert Gold as the ow ner of the property. A document, on which Granite also relied, that had a Delfino Re sort logo on it and wa s entitled “Preliminary5 Lien Information Contact Info rmation,” identified Berger and Scripps as the lenders, and
Desert Gold as the owner. George had “no idea” why Berger wa s not identified on the request for preliminary notice information form that Granite had prepared for the purpose of identifying whom it would serve with a pre liminary 20-day notice for the project. George thought it “odd” and “d[id]n’t make sense” that Berger was not listed on that
document. Granite’s preliminary 20-day notices were thereafter served by certified mail to Scripps and Desert Gold, as confirmed by returned receipts, copies of which are
contained in our record. It was not Granite’s practice to prepare declarations of service with regard to its service of preliminary 20- day notices. Berger was neither identified on, nor served with, the preliminary 20-day notices. On December 7, 2006, a grant deed tr ansferring the proper ty from Berger to
Desert Gold was executed but was not reco rded until January 4, 2007. In opposing Berger’s motion for summary judgment, Trav elers did not dispute that Desert Gold acquired the property from Berger on January 4, 2007. Reynolds, Granite’s project manager a nd senior estimator, testified at his deposition that in the normal course of su ch improvement work on public land, Granite would obtain an encroachment permit from the County before it could begin work on Varner Road. Oliphant testified, howeve r, that construction be gan on December 11, 2006, before the County issu ed an encroachment perm it on December 20, because “everybody,” including the County and Berger, was “pushing” to get the work done in time for the Bob Hope Desert Classic golf tournament. The improvements to Varner
Road “were to benefit all of the lots” in the tract. Travelers issued payment and performance bonds for the road and water improvement work on Varner Road. Granite began the work by clearing and grading along Varner Road, removing a chain-link fence, a nd staking the area. Materials were staged and stored on6 the premises for sewer and wate r lines. Reynolds testified at his deposition that Granite
was not concerned whether Dese rt Gold owned the property before construction began because “the County wouldn’t let me go to wo rk unless there was an agreement to work on that property.” Oliphant (employed by co nstruction manager, CalVes t) testified in his deposition that there was no agreement Desert Gold had to first acquire the property before construction began. He testified this was a “special circumstance” because work should not have begun until two weeks after the County ha d issued the December 20, 2006 encroachment permit. He also testified construction pr oceeded “at owner’s risk.”
At the commencement of the work on Varner Road, Berg er’s president, Ron Auen, and Doug Vance, Be rger’s vice-president of real estate, were seen at the property monitoring the work; they never object ed to the work or to ld the workers to stop
or leave. Vance contacted Cove Electric to mark Berger’s priv ate underground fiber optic line before the commencement of construc tion. A portable water tower that held 12,000 gallons of water was erected on the pr operty for the project. The water tower was visible from parts of the freeway and VarnerRoad. Vance’s brother’s company, Dan’s Equipment, was a contractor in the comme ncement of work at the property; Dan’s Equipment supplied water and water trucks. Berger financed Desert Gold’s purch ase of the property, and Berger thus became the beneficiary of a deed of trust encumb ering lots 3, 4, 6 th rough 9, B, and C of the property. The trust deed wa s recorded on January 4, 2007. Berger intended that its trust deed would be first in pr iority. Berger would not have provided financing if it had not been secured by a first trust deed. At some unspecified point in time, Desert Gold stopped making payments; Berger foreclosed on its trust deed and reac quired the property. Desert Gold apparently disappeared from the picture. On February 11, 2008, Granite stopped performing under the Granite contract because it had not been paid. As Gr anite was listed on the encroachment permit,7 the County required Granite to conduct some continuing maintenance on the uncompleted work to make sure the area rema ined safe until the work was completed. On February 22, 2008, Granite served a second prelimin ary 20-day notice, this time on Berger, which identified Berger as the lender. The notice contained a $2,480,129.49 estimate for the to tal price of additional labor, equipment, and materials needed for the project . No proof of service was prepared. On January 15, 2009, Gr anite recorded a mechanic ’s lien that encumbered the property now owned, once again, by Berger.

PROCEDURAL HISTORY
I.
G RANITE ’ S F IRST A MENDED C OMPLAINT In April 2009, Granite co mmenced this action to, inter alia, foreclose on its
mechanic’s lien. Granite’s first amended co mplaint, which is the operative complaint in this case, contained a claim for breach of c ontract against Desert Gold; two claims for common counts against Desert Gold; a claim for foreclosure of the mechanic’s lien against Desert Gold, Berger, Top Finan ce of Arizona, LLC, Dynamic Finance of Arizona, LLC, CalVest, P.M. 10, Inc., Eart h Systems Southwest, and GR Underground, Inc.; a claim for action on a payment bond ag ainst Travelers and the County; and a claim
for violation of Insurance Code section 790. 03, subdivision (h) and California Code of Regulations, title 10, section 2695.10 against Travelers.
As to the claim for foreclosure of the mechanic’s lien , the first amended complaint alleged that pursuant to section 3 097, within 20 days af ter first furnishing labor, services, equipment, and materials to the jobsite, Granite provided a preliminary 20-day notice. The first amended complaint further alleged: “On January 15, 2009, plaintiff’s certified Notice of Claim of Li en in the sum of $5,716,455.33 was duly recorded,” and that “[s]aid r ecordation was within thirty (3 0) days of recordation of8 Notice of Completion and within ninety (90) days since completion of the work of improvements or cessation of labor thereon. On or about April 16, 2009, defendant, Travelers Casualty and Sure ty Company of America, partially reduced the above referenced mechanics’ lien to $2,794,779.92.”
II.

T RAVELERS S UBSTITUTES IN AS P LAINTIFF AS TO G RANITE ’ S F ORECLOSURE OF M ECHANIC ’ S L IEN C LAIM ; G RANITE D ISMISSES A LL C AUSES OF A CTION O THER T HAN F ORECLOSURE OF M ECHANIC ’ S L IEN C LAIM

. In April 2010, Travelers filed a mo tion for an order substituting Travelers in place of Granite as to Granite’s cause of ac tion for foreclosure of its mechanic’s lien. Travelers’s moving papers expl ained that Granite and Travel ers entered into a settlement agreement in which, inter alia, Granite assigned its claim for foreclosure on the mechanic’s lien to Travelers. In Septembe r 2010, the trial court granted Travelers’s motion and ordered that Travelers, as assignee of Granite, “is hereby substituted in as the real party in interest in place of Granite as to the operative Compla int’s fourth cause of
action for foreclosure of mechanic’s lien.” (Some capitalization omitte d.) In April 2011, Granite filed a request for dismissal of all ca uses of action containe d in the first amended complaint except for the fourth cause of action for foreclosure of the mechanic’s lien. The court clerk entered the dismissal accordingly.
III.

T HE T RIAL C OURT D ENIES T RAVELERS ’ S F IRST M OTION FOR S UMMARY A DJUDICATION

. In March 2011, Travelers filed a moti on for summary adjudi cation as to the foreclosure of the mechanic’s lien claim, on the ground: “Travelers is entitled to judgment in its favor as to the fourth cause of action for foreclosure of mechanic’s lien as Granite: (1) supplied a preliminary notice; (2) timely recorded a mechanics lien; and (3) has priority over the deeds of trust held by the lenders which were recorded after the9 commencement of work of improvement on the subject real property.” (Some capitalization omitted.)
The trial court denied the motion for summary adjudication, stating triable
issues of material fact existed as to th e following: “Whether Travelers paid and discharged the entire debt of Granite; whet her subrogation of Granite[’]s rights to Travelers would work an injustice as to Be rger[;] whether Granite stopped work as early as February 2008 (which would indicate that the mechanics lien wa s recorded too late pursuant to Civ. Code 3115); whether Gr anite[’]s work stopped on January 31 2009 (which would indicate that Granite reco rded the mechanics lien prematurely on January 15 2009 in violation of Civ. Code 3115); whether Granite commenced work on October 20 2006; and the reasonable valu e of the work and materials.”
IV.

T HE T RIAL C OURT D ENIES B ERGER ’ S M OTION FOR S UMMARY J UDGMENT ON THE G ROUND T RIABLE I SSUES OF M ATERIAL F ACT E XISTED AS TO W HETHER B ERGER H AD K NOWLEDGE OF THE C OMMENCEMENT OF THE V ARNER R OAD I MPROVEMENT W ORK AND W HETHER B ERGER C AUSED T HAT W ORK TO C OMMENCE

. In November 2011, Berger filed a mo tion for summary judg ment as to the
foreclosure of the mechanic’s lien claim on the grounds, “there is no triable issue of fact and that Berger is entitled to a judgment as a matter of law as to the foreclosure of
mechanics’ lien claim because under Civil Code Section 3128 , the mechanics’ lien that
Travelers seeks to enforce did not attach to the property thatit purports to encumber. The mechanics’ lien did not attach to the propert y because Berger owned the property when
work commenced and did not cause the work to be done.” On February 14, 2012, the trial court denied the motion for summary judgment on the ground, “[t] riable issues of fact exis t as to whether the Berger Foundation had knowledge of commencement of the offsite improvement work and
whether it caused the wo rk to commence.”10 V.

T HE T RIAL C OURT G RANTS B ERGER ’ S M OTION FOR S UMMARY J UDGMENT ; T RAVELERS A PPEALS

. In January 2012, Berger filed a motion for summary judgment on the ground, “there is no triable issue of fact a nd that Berger is entitled to a judgment as a
matter of law as to the foreclosure of mechan ics’ lien cause of action. The mechanics’
lien that Travelers seeks to enforce is invalid because Granite did not serve Berger with a 20-day preliminary notice as requi red by Civil Code Sections 3097, 3097.1 and 3114.” The trial court granted Berger’s motion for summary judgment on the ground, “Granite failed to serve Berger wi th a 20 day preliminary notice as required (Civil Code 3097 3097.1 and 3114). Granite was not exempt from this requirement on the grounds that it had a direct contract with the reputed owner of the property[,] that there was an implied contract between Berger and Granite[,] or that Granite acted in good faith.” The court overruled the parties’ ev identiary objections; neither party challenges the court’s ruling on any evidentiary objections in this appeal. In May 2012, judgment was entered in favor of Berger and against Travelers as the real party in interest to Granite’s claim. Tr avelers appealed.

DISCUSSION
I.
S TANDARD OF R EVIEW We review orders granting summary judgment de novo. ( Saelzler v. Advanced Group 400(2001) 25 Cal.4th 763, 767; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35.) A motion fo r summary judgment is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4t h 826, 843.)11 II.
S UMMARY OF THE A PPLICABLE L AW G OVERNING P RELIMINARY 20- DAY N OTICES AND M ECHANIC ’ S L IENS “A mechanic’s lien is a claim against the real pr operty, which may be filed if a claimant has provided labor or furnishe d materials for the property and has not been paid. ( Kim v. JF Enterprises (1996) 42 Cal.App.4th 849, 85 4 . . . .) The mechanic’s lien
derives from the California Constitution and ‘courts have uniformly classified the mechanics’ lien laws as remedial legislation, to be liberally construed for the protection of laborers and materialmen.’” ( Brewer Corp. v. Point Center Financial, Inc. (2014) 223 Cal.App.4th 831, 839, quoting Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803, 826-827.) A mechanic’s lien “is effected by the f iling of a claim of lien within certain time limitations (§§ 3115, 3116) and by me eting other statutory requirements.” ( Kim v. JF Enterprise (1996) 42 Cal.App.4th 849, 854.) Under section 3097, “[s]ervice of a preliminary 20-day notice is re quired to enforce a mechanic’s lien or stop notice claim. [Citations.] A preliminary notice must be serv ed within 20 days af ter the claimant has begun providing labor, services, equipment, or material for which a mechanic’s lien or stop notice claim will be made. [Citati on.] The Legislature imposed the notice requirement to alert property owners and lender s ‘to the fact that the property or funds involved might be subject to claims arising fr om contracts to which they were not parties and would otherwise have no knowledge.’ [C itation.] The Legislature intended ‘to exact strict compliance with th e preliminary notice require ment.’ [Citations.]” ( Brewer Corp. v. Point Center Financial, Inc. , supra , 223 Cal.App.4th at p. 847.) Section 3097 provided in relevant part: “‘Preliminary 20-day notice (private work)’ means a written no tice from a claimant that is given prior to the recording of a mechanic’s lien, prior to the filing of a stop notice, and prior to asserting a claim against a payment bond, and is required to be given under the followi ng circumstances:12 [¶] (a) Except one under direct contract with the owner . . . , every person who furnishes labor, service, equipment, or material [to a work of improvement] . . . shall, as a necessary prerequisite to the validity of . . . a notice to withhold, caus e to be given to the owner or reputed owner, to the original contractor, or reputed contractor, and to the construction lender, if any, or to the re puted construction lender, if any, a written preliminary notice as prescribed by this secti on. [¶] (b) Except the contractor . . . , all persons who have a direct contract with the owner and who furnish labor, service, equipment, or material [to a work of improvem ent] . . . shall, as a necessary prerequisite to the validity of . . . a notice to withhold, cause to be given to the construction lender, if any, or to the reputed construction lende r, if any, a written preliminary notice as prescribed by this section.” Section 3095 defined the term “‘[o]riginal contractor’” as “any contractor who has a direct contr actual relationship with the owner.” “Although a mechanic’s lien itself is not recorded until af ter the completion of the work in question (§§ 3 115, 3116), with certain excepti ons, a claimant must serve a ‘preliminary notice’ not later ‘than 20 days after the claimant has first furnished labor, service, equipment, or materials to th e jobsite.’ (§§ 3097, 3097, subd. (d).) A preliminary 20-day notice is ‘a necessary prerequisite to the validity of any claim of lien . . . .’ (§ 3097, subd. (a).) ‘A claimant sh all be entitled to enforce a lien only if he has given the preliminary 20-day notice (private wo rk) in accordance w ith the provisions of Section 3097, if required by that section, and has made proof of service in accordance with the provisions of Section 3097.1.’ (§ 3114.) Strict co mpliance with section 3097 is required. ( Truestone, Inc. [ v. ] Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 721 . . . .)” ( Kim v. JF Enterprises , supra , 42 Cal.App.4th at p. 855.) Here, Travelers sought to foreclose on Granite’s mechanic’s lien to recover money for the services and materials provide d by Granite in its c onstruction work on Varner Road, which was property owned by th e County, a public en tity. Although “[a] mechanics lien is not available against public property,” even when a private developer13 performs construction on public property, “[p]riva te property that is directly adjacent to and benefited by public works, such as stre ets, storm drains, and curbs, also can be subject to a mechanics lien on a public work s project.” (Cal. Mechanics Liens and
Related Construction Remedies (Cont.Ed.Bar 4th ed. 2013) § 4.5, pp. 319, 320, citing North Bay Construction, In c. v. City of Petaluma (2006) 143 Cal.App.4th 552 and Sukut-Coulson, Inc. v. Allied Canon Co. (1978) 85 Cal.App.3d 648.) Furthermore, section 3128 authorized the attachment of liens to adjacent property: “The liens provided for in this chap ter shall attach to th e work of improvement
and the land on which it is situ ated together with a convenientspace about the same or so much as may be required fo r the convenient use and oc cupation thereof, if at the
commencement of the work or of the furnishing of the mate rials for the same, the land belonged to the person who cause d such work of im provement to be constructed, but if such person owned less than a fe e simple estate in such land th en only his interest therein is subject to such lien, except as provided in Se ction 3129.” (See Forsgren Associates, Inc. v. Pacific Golf Community Development LLC (2010) 182 Cal.App. 4th 135, 150.) The parties do not dispute that Granite’s mechan ic’s lien, if otherwise valid, could attach to the property adj acent to Varner Road.
III.
A LTHOUGH G RANITE D ID N OT H AVE A D IRECT C ONTRACTUAL R ELATIONSHIP WITH

B ERGER , AND D ID N OT S ERVE B ERGER WITH A P RELIMINARY 20- DAY N OTICE IN 2006, A T RIABLE I SSUE OF M ATERIAL F ACT E XISTS AS TO W HETHER B ERGER H AD A CTUAL K NOWLEDGE OF THE C OMMENCEMENT OF THE C ONSTRUCTION S O AS TO E XCUSE G RANITE FROM T HAT R EQUIREMENT

. It is undisputed Granite did not serv e Berger, as owner of the property adjacent to Varner Road or in any capacity, with a prelim inary 20-day notice at the
commencement of the construction in Decemb er 2006. “Section 3097, subdivision (a) creates two exceptions to the pr eliminary notice requirement. No notice is required from: (1) ‘one under direct contract with the owner’, or (2) one performing actual labor for14 wages.” ( Kim v. JF Enterprises , supra , 42 Cal.App.4th at p. 855.) “The rationale for excepting those under direct contract with th e owner from serving a preliminary notice is that ‘the owner is generally apprised of pote ntial lien claims by those with whom he deals directly, whereas it is difficult for him to lear n of potential liens by those not under direct contract. [Citation.]’ [Citation].” ( Ibid .)
In Kim v. JF Enterprises , supra , 42 Cal.App.4th at page 856, the appellate court explained: “Section 3129 [3] states that every work of improvement constructed, labor performed or materials furnished ‘with th e knowledge of the owne r’ shall be held to have been ‘constructed, performed, or furnishe d at the instance of such owner . . . .’ This statute creates a presumption that, where th e owner has knowledge of the construction work on its property, the work is done at the instance of the owner and hence ‘under
direct contract with the owner’ within section 3097 . [Citation.]” (Italics added.) Therefore, “‘[w]here a noncontracti ng owner has actual knowledge of the improvements being made to his property and fails to avail himself of the mode of exempting his interest from liabili ty for the work prov ided by . . . section 3094 . . . , he is estopped to deny that the work was done at his instance and request. [Citation.] Under

3 Section 3129 provided in full: “Every work of improvement constructed upon any land and all work or labor performed or materials furnished in connection therewith with the knowledge of the owner or of any person having or claimi ng any estate therein shall be held to have been constructed, pe rformed, or furnished at the instance of such owner or person having or claiming any estate th erein and such interest shall be subject to any lien recorded under this chapter unless su ch owner or person having or claiming any estate therein shall give a notice of no nresponsibility pursuant to Section 3094.” Section 3094 defined “‘[n]otic e of nonresponsibility’” as a “written notice, signed and verified by a person owning or claiming an in terest in the site who has not caused the work of improvement to be performed, or his agent,” and which contains specified information set forth in the st atute. The notice of nonres ponsibility must be provided “[w]ithin 10 days after the pe rson claiming the benefits of nonresponsibility has obtained knowledge of the work of improvement” and “shall be posted in some conspicuous place on the site.” (§ 3094.) There is no evidence any party provided a notice of nonresponsibility in this case.15 such circumstances the claimant has a “direct contract with the owner” for the purposes
of . . . section 3097 . . . a nd consequently is not required to give the notice prescribed therein. [Citations.]’ [Citation.]” ( Kim v. JF Enterprises , supra , 42 Cal.App.4th at p. 856.) The appellate court in Kim v. JF Enterprises , supra , 42 Cal.App.4th at page 859, rejected the plaintiffs’ argument that the owners’ constructive knowledge was sufficient to excuse the plain tiffs’ compliance with section 3097. The court concluded, “only where the owner has actual knowledge of the construction is a claimant excused from serving a preliminary notice.” ( Kim v. JF Enterprises , supra , at p. 859.) In granting Berger’s motion for summa ry judgment on the ground Granite failed to serve Berger with a preliminary 20- day notice, the trial court stated in part, “Granite was not exempt from this require ment on the grounds that it had a direct contract with the reputed owner of the prop erty[,] that there was an implied contract between Berger and Granite [,] or that Granite acted in good faith.” Granite, however, produced evidence in opposition to Berger’s motion for summary judgment that would support a find ing Berger had actual knowledge of the construction work along Varner Road, thereby triggering th e presumption the work was done at the instance of Berger and “‘under direct contract with’” Berger. ( Kim v. JF Enterprises , supra , 42 Cal.App.4th at p. 856.) By virt ue of this evidence, Berger may be estopped from arguing the requirements of the statute were not met. That evidence includes: (1) the e-mails, dated September 26, 2006, documenting Berg er’s reluctance, as expressed by one of its attorneys, to become a party to the Granite contract, and, thus, Berger’s awareness of discussions leading up to the Granite contract; (2) testimony that
the commencement of wo rk on Varner Road was expedited at “everybody’s” insistence, including Berger’s, with the goal of facili tating public access to the Bob Hope Desert Classic golf tournament to be held on Ja nuary 17, 2007; (3) testimony regarding the presence of Berger executives, Auen and Vance, at the commencement of work on16 Varner Road and frequent visits monitori ng the progress of the work; (4) Vance’s assistance in marking a fiber optic line to facilitate constr uction on Varner Road; (5) the visible grading and staging activities on Varn er Road and adjoini ng property; (6) the erection of a 12,000-gallon portable water to wer on the property for use in construction efforts, which was visible from parts of the freeway and Varner Road itself; and, to a lesser extent, (7) Vance’s brother’s role atthe commencement of construction activities as a contractor providing wate r supply services to facilitate construction on the property adjoining Varner Road. Berger argues some of the depositi on testimony of witnesses, which was produced by Travelers in opposition to the motion for summary judgment, was inconsistent and vague regarding timing of ev ents and personal knowledge. For example, Oliphant testified at his deposition, as follo ws: “[W]hen we started on December 14, Ron Auen and Doug Vance were on the property every day during our improvements. So they—they never objected and sa id, ‘You guys have to stop, leave. We don’t want you to’—‘We don’t want you to not work—or work here,’ any—any of that. They were quite helpful.” Oliphant also testified “the Berger s” were on the jobsite “quite often” early in the morning as Auen was “an early bird, and so he came out earl y throughout the entire process.” Oliphant testified that his own sc hedule did not “always co incide to the early visits” and so he did not see Auen every time he came; Oliphant’s superintendent, however, told him that he saw Auen numerous times. Oliphant stated that he could not recall if he personally saw Auen and Vanc e onsite between December 11, 2006 and January 4, 2007. Oliphant also offered inconsistent testimony regarding the issue of Vance’s assistance in marking the fibe r optic line. At one point in his deposition, Oliphant testified that immediately before construction began, he requested Vance’s assistance in marking the fiber optic line near the work on Varner Road to make sure it was not hit when digging began. He asked Vance, “can you mark out your fiberoptic line for us17 because we are going to start.” Oliphant al so testified he did not “actually recall the conversation to get that line demarked.” On the other ha nd, Vance testified at his deposition that he discussed the fiber optic line with Oliphant af ter the line had been damaged. Berger argues that although eviden ce shows a portable water tower was erected, no evidence show s when the tower was erected. Similarly, sometimes vague and inconsistent deposition testim ony was presented as to the timing of the arrival of construction materials and equipment. That Oliphant and other witnesses provided sometimes inconsistent and vague deposition testimony does not render thei r testimony ineligible to create a triable issue of material fact as to Berger’s actual knowledge of the commencement of construction on Varner Road. It is the pr ovince of the jury to reconcile conflicting testimony offered by O liphant and other witnesses and to weigh credibility.
We have reviewed all of the evidence cited by the parties in support and in opposition to Berger’s motion for summary judgment. It would strain credulity to conclude that, as a matter of law, a reasona ble jury could not find that Berger had an
actual awareness of the commencement of c onstruction on or along Varner Road in December 2006. Consequently, a triable issue of material fact exists as to whether Berger had actual knowledge of the construc tion of Varner Road, which would thereby
excuse Granite’s failure to serve Berger with a preliminary 20-day notice under section 3097. Summary judgment must be reversed on this ground alone.
IV.
A T RIABLE I SSUE OF M ATERIAL F ACT E XISTS R EGARDING W HETHER G RANITE S ERVED D ESERT G OLD WITH A P RELIMINARY 20- DAY N OTICE AS THE R EPUTED O WNER OF THE P ROPERTY

. Section 3097, subdivision (a) required that a claimant serve a preliminary 20-day notice on “the owner or reputed owner” of the property. The term “reputed,”18 whether used to refer to the owner or the construction lender, for purposes of section 3097, is “a person or entity reas onably and in good faith believed by the claimant” to be the actual owner or construction lender. ( Kodiak Industries, Inc. v. Ellis (1986) 185 Cal.App.3d 75, 87.) “The test is an objective one and a claimant must be deemed to possess sufficient information about a reputed lender when a reasonable person, given the claimant’s information, w ould have been led to believe in good faith” that a putative owner was the actual owner. ( Ibid .) “[T]he information on which a reasonable claimant should rely must be cl oaked with sufficient indicia of reliability—
such as statements from the ow ner, general contractor, or le nder itself or their agents—so as to distinguish this information from a mere guess or some ill-founded conjecture.” ( Ibid .) Here, the trial court’s minute order gr anting summary judgment also stated Granite was not exempt from the preliminar y 20-day notice requirement on the ground it had “acted in good faith.” Pr esumably, the court’s statement was in response to Granite’s argument that Granite, by serving Desert Gold on December 1, 2006, with a preliminary 20-day notice, had discharged its obligatio n under section 3097 by serving the reputed owner of the property with that notice.
The record shows the ordinary course of preparing for and commencing construction on the project wa s disturbed because of the collective goal of all those
involved to have Varner Road widened and otherwise improved by the start of the Bob Hope Desert Classic golf tournament on Janu ary 17, 2007. Consequently, the Granite contract was entered into before the grant de ed was executed transferring the property to Desert Gold, and construction began pursuant to the Granite contract before that grant
deed was recorded in January 2007. The evidence shows that, in December 20 06, the parties appeared to operate under the premise that Desert Gold’s ac quisition of the prope rty was a foregone conclusion. Despite their knowledge, Auen and Vance did not interfere with the19 construction activities on Varner Road, an d the County did not stop construction
activities that occurred before the issuance of an encroa chment permit. (Oliphant testified at his deposition that a transporta tion inspector from the County was out on the site every day and the inspector did not “red tag” the project or issue a stop notice.) Reynolds testified that he would have been fired if he had not believed there was an agreement in place providing a developer’s ownership of the property before construction began. CalVest and Desert Gold provided Gr anite with information that Desert Gold was the owner of the property for purposes of the preliminary 20-day notices. On the other hand, however, Granite was on notice that Berger was the original owner of the propert y but did not confirm owners hip of the property when construction commenced. Consequently, we c onclude a triable issue of material fact exists as to whether Granite, by serving Desert Gold as the reputed owner of the property, had acted reasonably and in good faith. Th erefore, the motion fo r summary judgment failed on this ground, in addition to an d independent of the ground, discussed ante , that a
triable issue of material fact exists as to Berger’s actual knowledge. In light of our reversal of summary judgment due to the existence of triable issues of material fact, we do not need to also address Berger’s argument regarding the legal effect of Granite’s failure to prepare proofs of service for the preliminary 20-day notices it served, as required by section 3114. 4 Berger argues that Granite’s preliminary 20-day notices would not be eff ective unless Granite prepared pr oofs of service. Without citing to supportive legal authority other th an the statute itself, Berger suggests a contractor that provided labor, services, a nd materials under a cons truction contract, and complied with all the prelim inary 20-day notice statutory requirements, except for the

4 Section 3114 provided: “A claimant shall be entitled to enforce a lien only if he has given the preliminary 20-day notice (priva te work) in accordance with the provisions of Section 3097, if required by that section, and has made proof of service in accordance with the provisions of Section 3097.1.”20 requirement it must also prepare a proof of service, forfeits the right to recover amounts
due under a construction contr act through a mechanic’s li en. We do not agree the Legislature intended such an automatic and absolute forfeiture of the mechanic’s lien remedy to such a contractor in light of the reme dial nature of the mechanic’s lien statutes, which the California Supreme Court has held must be “liberally construed for the protection of laborers and materialmen.” ( Connolly Development, Inc. v. Superior Court , supra , 17 Cal.3d at pp. 826-827.) In any event, the trial court’s minute order granting Berger’s motion for summary judgment does not suggest the court relied on Granite’s failure to prepare proofs of se rvice as a basis for its ruling. Because we reverse summary judgment, we also do not need to address
whether a triable issue of material fact exis ts regarding who owned the property at the time construction commenced for the purpo se of the preliminary 20-day notice requirement. Travelers argues that Desert Go ld became the owner of the property on December 7, 2006, when the gr ant deed was executed, tho ugh not yet re corded, which argument, Berger contends, is forfeited for failure to raise it in the trial court. (See Civ. Code, § 1217 [“An unrecorded instrument is valid as between th e parties thereto and those who have notice thereof.”].)
V.

T HE T RIAL C OURT ’ S M INUTE O RDER D OES N OT A DDRESS THE E FFECT OF THE P RELIMINARY 20- DAY N OTICE G RANITE S ERVED ON B ERGER IN F EBRUARY 2008. On February 22, 2008, Granite prep ared a preliminary 20-day notice that identified Berger as “lender/ surety” (capitalization omitted) and stated a $2,480,129.49 estimate for the total price of additional labor , equipment, and materials needed for the project. The record contains a copy of the no tice and a certified mail return receipt, but does not contain a proof of se rvice for that notice. The trial court’s minute order does not address the effect, if any, that February 2008 notice to Bergerhad on the viability of the foreclosure on the mechanic’s21 lien claim. Section 3097, subdiv ision (d) provided in part: “If labor, service, equipment, or materials have been furnished to a jobsite by a claimant who did not give a preliminary notice, that claimant shall not be preclude d from giving a preliminary notice at any time thereafter. The claimant shall, however, be en titled to record a lien, file a stop notice, and assert a claim against a paym ent bond only for labor, servic e, equipment, or material furnished within 20 days prior to the service of the preliminary notice, and at any time
thereafter.” Granite produced evidence that it continued work on the project until February 11, 2008, less than 20 days before service of the preliminary 20-day notice served on Berger. Therefore, a triable issue of material fact exists regarding the viability of the mechanic’s lien to recover labor, servic e, equipment, or materials furnished within 20 days prior to service of the prelimin ary 20-day notice and any work thereafter completed by Granite.

DISPOSITION The judgment is reversed. Appellant shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.