Pacific Coast Refrigeration, Inc. v. Badger

Opinion

Defendants have appealed from a judgment ordering foreclosure of a mechanic’s lien asserted against a parcel of land in which they hold title of record as joint tenants. They contend that the land, which was part of the whole of a planned shopping center, is not required for the convenient use and occupation of another portion of the

An examination of the record indicates that the findings of fact and the conclusions of law and judgment of the trial court cannot be sustained in material particulars. The judgment must be reversed and the case must be remanded with instruction to enter judgment for the defendants.

The facts are not greatly disputed. It is only the legal conclusions to be drawn therefrom that give rise to the controversy. The uncontradicted facts applicable to both issues, most of which are embraced in the findings of the trial court, are as follows:

On December 11, 1957, a deed was recorded conveying to “Douglas Badger and Florence Badger, his wife, in Joint Tenancy” five acres of land, more or less, bounded on the west by a railroad right of way, on the south by Dry Creek Road, and on the east by Healdsburg Avenue. By deed recorded September 13, 1965 the Badgers conveyed away the northerly 2.12 acres of the property. They were left with a parcel that measured, according to the description in the lease referred to below, upon which description plaintiff rests its claim, 336.50 feet on the east along Flealdsburg Avenue, 389.15 on the north along the boundary of the land conveyed away, 333.11 feet on the west along the railroad right of way, and 364.20 feet on the south along Dry Creek Road. It contained 2.89 acres.

On August 26, 1966, the Badgers, in contemplation of leasing the southeast comer for a service station recorded a record of survey map of the property which reflected a square parcel roughly 150 feet on each side of the intersection at the southeast comer.

On June 1, 1966, “Douglas Badger, and Florence Badger, his wife,” as “Landlord” leased all of their remaining property, including the proposed service station site, to “W. S. Lee” as “ ‘Tenant.’ ” On July 29, 1966, a “Memorandum of Lease,” executed and acknowledged by each of the foregoing parties and containing a legal description of the property by metes and bounds, was recorded.

The record reflects, and the court found that W. S. Lee, the tenant under the lease from the Badgers, subleased the property to Lee Bros. Value World, Inc., a California corporation, for the purpose of the construction of a shopping center. The sublessee had plans drawn up for the construction of a shopping center which was to include a supermarket, a service station, building space for other stores and a large parking lot and common area. Lee Bros. Value World, Inc. entered into a contract with Page Construction Company for the constmction of the supermarket, and further entered into two separate contracts with plaintiff, Pacific Coast Refrigeration, Inc., a California corporation duly licensed to perform refrigeration and general contracting services, for the engineering and installation of a refrigeration underground and an air-conditioning underground in the supermarket element of the shopping center. During the period from August 1, 1967, to October 1, 1967, the plaintiff provided labor and materials to the supermarket job site in an amount in excess of its claim. On September 27, 1967, a bankruptcy petition was filed for Lee Bros. Value World, Inc.

On October 10, 1967, plaintiff sent its invoice in the amount of $12,240 to the sublessee, with whom it had contracted and a copy to defendant Douglas Badger. A certified mail receipt shows that pursuant to the provisions of section 1193 of the Code of Civil Procedure, a prelien notice was mailed to “Doug Badger,” “Redwood Electric Co., Owner or Reputed Owner” and was delivered to “Redwood Electric K. M.

Under the threat of the Bank of America foreclosing its deed of trust, plaintiff and defendants in effect worked together to see if their respective interests in the land could be salvaged. While working together, plaintiff and plaintiff’s attorneys, and defendants and defendants’ attorneys did not realize that the Bank of America deed of trust did not cover the entire property subject to plaintiff’s claim of lien. The Bank of America assigned its beneficial interest in the deed of trust to Borden, Inc., and that deed of trust was foreclosed by sale to the assigned beneficiary and a trustee’s deed to Borden, Inc. conveying the portion of the premises the subject of the deed of trust was recorded December 23, 1969.

In January 1972 plaintiff engaged and substituted new attorneys in. the case. They discovered the true names of the owners of record, and that they owned the underlying fee to the parking lot easement and that the service station comer had not been subject to the deed of trust. On May 16, 1972, defendant “Doug Badger, individually and doing business as Redwood Electric Company,” filed an answer to the original complaint in which for lack of information and belief he denied the allegation relating to the materials, equipment and labor supplied by the plaintiff and the amount due therefor. He alleged as affirmative defenses that the plaintiff had failed to give preliminary notice of his claim as required by section 1193 of the Code of Civil Procedure, and that plaintiff had failed to record its claim of lien in timely manner. By failure to deny he admitted the allegation concerning the description of the property involved and that it was required for the convenient use and occupancy of the building.

"31. The whole property described in plaintiff's claim of lien was to be developed as an entirety so that each portion would attract customers and provide conveniences for customers of the entire enterprise; the supermarket was to be called Lee Bros: Value World and the service station was to be called Value World Automotive Service Center.

"32. At all times, the entirety of the property described in plaintiff's lien was, and now is, necessary and convenient to the use and occupancy of the job site upon which plaintiff bestowed its materials and labor."

Defendants contend that the second finding is unsupported by the evidence, because, although the whole of the premises might be convenient for the use and occupancy of the supermarket, the service station site, as distinguished from the parking, driveway, walkway, and common areas over which the lender took an easement, was not necessary or required for such convenient use and occupancy.

At the outset defendants are met with the general rule that all intendments are in support of the findings of the lower court. ". . . an appellate court will view the evidence in the light most favorable to the respondent and will indulge in all intendments, and reasonable inferences to sustain the findings and the judgment." (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488 , 492, fn. 1 [ 102 Cal.Rptr. 795 , 498 P.2d 1043 ]. See also Thompson v. City of Long Beach (1953) 41 Cal.2d 235 , 246 [ 259 P.2d 649 ]; and Mayo v. Pacific Project Consultants, Inc. (1969) 1 Cal.App.3d 1013 , 1020 [ 82 Cal.Rptr. 117 ].) More specifically, as stated in the opinion adopted in Anselmo v. Sebastiani (1933) 219 Cal. 292 [ 26 P.2d 1 ], "`Determining the area of land that shall be included in

The record also establishes that the construction of the supermarket and the adjacent parking lot were disassociated, not only from the construction of a proposed department store, apparently on an adjacent site, included in the property subject to the deed of trust, but also from the proposed construction of the service station on a separate site.

At the time of trial, February 28, 1973, the market, insofar as it was completed, had never been occupied or put to use. Adjacent to it was a portion of ground which had been graded level and prepared for future building. A portion of the premises reserved for use as a parking lot had been paved and furnished with typical parking lot lights. Driveways had been constructed into the parking lot from the two adjacent streets, and it was useable and used for vehicular traffic.

The service station site, which had been excepted from the property subject to the deed of trust, had been leveled, but it was unimproved and was covered with grass. It was separated from the remainder of the property by a basalt block retaining wall on the inside boundaries and for the most part was at a different grade than the parking lot. No driveways had been constructed from the service station site to either of the two adjacent intersecting streets. The parking lot was developed for the entire prospective development, that is the building which was erected and other proposed stores, but not specifically for the use of the service station. On the completion of the work that was accomplished, a large space was left in the center of the basalt block wall for ingress and egress between the parking lot area and the service station site, but it was closed off by posts, which were indicated on the plans for the supermarket as “Temporary Barrier.” At the time of trial it was impossible to drive from one location to the other.

Finding number 32 can only be considered as a mixed finding of ultimate fact and a conclusion of law. The particular facts being undisputed, the matter then became a question of law. Plaintiff points out that the mechanic’s lien law is remedial in character, and should be liberally construed in its entirety with a view to effect its objects and to promote justice. (See Hendrickson v. Bertelson (1934) 1 Cal.2d 430 , 432 [ 35 P.2d 318 ].) It has been noted that there was frequent amendment of the lien laws at earlier sessions of the legislature (see Booth v. Pendola

Each side recognizes that the statute directs consideration of the nature of the “use and occupation” of the structure for which the labor and materials were furnished, or as phrased in Anselmo v. Sebastiani, supra, 219 Cal. 292 , “ ‘The determination of this area must take into consideration the intended use for which the building is erected. If erected for the purposes of use as a separate and distinct unit, then the area of land required for its convenient use may properly be limited only to an area necessary for ingress and egress, but if its use is dependent upon, and connected with the uses made of other buildings or the uses made of other portions of the tract of land upon which it is situate, then if all of the larger tract is required for the “necessary and convenient use” of the building involved, such larger tract may properly be included in the order of sale.’ ” (219 Cal. at pp. 297-298. See also Cowan v. Griffith (1895) 108 Cal. 224 , 226 [ 41 P. 42 ]; and Tunis v. Lakeport A. P. Ass’n. (1893) 98 Cal. 285 , 286 [ 33 P. 63 , 447].) Or, as stated in Springer Land Association v. Ford (1897) 168 U.S. 513 [ 42 L.Ed. 562 , 18 S.Ct. 170 ], “The truth is that what area of land is subject to lien in a given case largely depends on the character of the improvement.” (168 U.S. at p. 530 [42 L.Ed. atp. 567], See also Gregg v. H. & M. Drilling Co. (1928) 92 Cal.App. 189 , 191-193 [ 267 P. 903 ]; and Western W. Wks. v. California F. Co. (1923) 60 Cal.App. 749 , 756-758 [ 214 P. 491 ].)

Defendants concede that the use and occupation of a building designed and intended for a supermarket requires for its convenient use and occupation the easement, for parking, driveways, walkways and common areas, which was the subject of the deed of trust, and was thereafter, with the work of improvement, lost, to both owner and lienholder, by the foreclosure.

In support of the finding, conclusion and judgment of the trial court, plaintiff relies upon Anselmo v. Sebastiani, supra, and W. R. Spalding Lbr. Co. v. Fradkin (1945) 68 Cal.App.2d 308 [ 156 P.2d 450 ]. In the former case, the lien for the obligations arising from the construction of an auxiliary building to store the by-products from winemaking was

In the latter case the court affirmed a judgment which gave the lien claimant a lien on an entire 20-acre ranch, stating, “Finally, it is contended that the court erred in imposing a lien upon the entire 20 acres owned by the appellants rather than upon a portion thereof. There is evidence that this dwelling was built because it was necessary to the operation of the ranch and for the purpose of improving and benefiting the entire 20 acres. No abuse of discretion appears. [Citations.]” (68 Cal.App.2d at p. 314. See also California Cor. Culvert Co. v. Stewart (1934) 220 Cal. 104 , 106-107 [ 29 P.2d 412 ]. Cf. Tunis v. Lakeport A. P. Ass’n., supra, 98 Cal. 285 , 287; and Cowan v. Griffith, supra, 108 Cal. 224 , 226, as both are discussed below.) The Fradkin case, perhaps erroneously, applies the principle properly applied to structure or other works of improvement which are designed and constructed to be of use and benefit to the improvements and land which are adjacent. Examples are: the grain elevator and bam expressly constructed for handling the crop of a 729-acre rice ranch (California Cor. Culvert Co. v. Stewart, supra), the preserving house building which was an integral part of the winery (Anselmo v. Sebastiani, supra), the well to irrigate two sections of land (Western W. Wks. v. California F. Co., supra), and the irrigation system serving 22,000 acres (Springer Land Association v. Ford, supra). Here the supermarket was neither dependent on nor connected with the proposed service station operation, nor would it more than incidentally benefit such an operation.

The fundamental fallacy in plaintilf’s argument, which has apparently been overlooked by both parties and the court below, is that it assumes

It may be argued that in view of the evidence the court properly considered the whole of the proposed shopping center as “the land on which [‘the work of improvement’] is situated together with a convenient space about same” under the statutory provision. That concept presents certain difficulties where, as here, the work is not undertaken all at once under one general contract. When the development is by stages, on separate plots, the granting of lien on the whole to anyone who contributes labor or material to a particular unit could result in encumbering the entire project because of the default of one tenant or concessionaire. Moreover, it could lead to serious conflicts.

Assume that the supermarket and the service station were constructed contemporaneously but under separate contracts, separately financed on separate plots, and that there was resulting financial embarrassment. If there was an equity left in the supermarket but all interests in the service station had been lost by foreclosure, the refrigeration contractor should not be required to share his lien with those who constructed the service station.

It is important to note that this is not a dispute between a contractor and a landowner or lender who has received an economic benefit from the labor and materials furnished by the contractor. (Cf. Civ. Code, § 3264 and discussion, Boyd & Lovesee Lumber Co. v. Modular Marketing Corp. (1975) 44 Cal.App.3d 460 , 463-466 [ 118 Cal.Rptr. 699 ].) The developer’s default has left both losers. Plaintiff lost his labor and materials; the defendants lost about five-sixths of their land. It is neither

If the case is examined, as it has been presented, from the viewpoint of an existing service station, there is still no merit in plaintiff’s contention. Although in this case there may be a connection between the use and occupation of the new supermarket and a service station, there is no showing that the use and occupation of the former is dependent upon the latter. (Cf. Anselmo v. Sebastiani, supra, 219 Cal. 292 , 298.) W. R. Spalding Lbr. Co. v. Fradkin, supra, insofar as it indicates a dwelling, was necessary for the ranch and therefore the entire ranch may be subject to a lien, is contrary to the statements uttered by the Supreme Court of this state in Tunis v. Lakeport A. P. Ass’n., supra, (98 Cal. at p. 286) and in Cowan v. Griffith, supra, (108 Cal. at p. 226). Here the plaintiff has failed to show that the supermarket was necessary for the reserved site of the service station.

In support of their position, that the service station site was not required for the convenient use and occupation of the supermarket, defendants rely upon Tunis v. Lakeport A. P. Ass’n., supra. There the trial court had failed to take evidence on the issue of how much land was actually required for the convenient use and occupation of the building housing a hotel, clubhouse and saloon which was the work of improvement. In reversing a judgment which had granted a lien on the whole of a 60-acre agricultural park with race track, grandstand and stables, the court made the following observation, “ . . . This thing should be borne in mind, it is for the convenient use and occupation of the building that the land about the same is given by our statute; a flouring mill erected upon a large grain ranch would require a given space around it for the purposes incidental to its operations; it might require the whole ranch to create business for it, but it would not follow, under our statute, that the entire ranch would be subject to a lien for its erection.” (98 Cal. at pp. 286-287.) With respect to the issue at hand it stated, “In the present case it is easy to see that the race track with its training stables, grand stand, corrals, and other improvements, may be necessary to create business for the hotel, clubhouse, and saloon, for which the building in question' was constructed, but it is not at all apparent that they are necessary to the convenient use. and occupation of the building for the purposes indicated. Their uses are foreign to its purposes, except as they may tend to bring custom to its doors.” (Id. p. 287.) So here a service station if and when it might be constructed is not necessary to the convenient use and

Plaintiff seeks to distinguish Tunis on the ground that it failed to appreciate and apply the principle that the lien law, being remedial in character, should be liberally construed. As we have seen that principle does not give a license to subject more property to the lien than is authorized by law. Plaintiff further asserts that the views outlined above are dicta because the case was remanded for further trial. It is clear that the court intended, “to indicate the basis upon which, under our code, a conclusion is to be reached in consonance with the requirement of the law.” (98 Cal. at p. 287.)

The principles enunciated in Tunis have been applied in other circumstances.

In Macomber v. Bigelow (1899) 126 Cal. 9 [ 58 P. 312 ], the court ruled: “In this case the work for which liens were filed was all done and furnished on and for the new building of ‘eight flats’; the liens filed by Madigan and Tuttle were therefore properly confined to the lands necessary and convenient to the use and occupation of that particular building, and, the court having the power so to do under section 1185 of the Code of Civil Procedure, properly restricted the lien of Depuy to the same premises. There was nothing to show that the rear portion of the lot, covered by the old buildings, was in any way convenient or necessary to the use of the new building. Though the original contract embraced other buildings, the liens were properly confined to the building upon which the work was done. [Citation.]” (126 Cal. at p. 12.)

In Cowan v. Griffith, supra, the court reversed judgment foreclosing liens for obligations incurred in the construction of a dwelling house on the whole of a 40-acre farm. The court concluded, “And here it may be said the use of this land is foreign to the owner’s purposes, except that it may furnish him an income by which he may sustain himself in the dwelling. The statute simply allows him the dwelling-house and a quantity of land around it sufficient for its convenient use. As to his income or source of support, the statute does not concern itself.” (108 Cal. at p. 226.) So in this case the court should not concern itself with

The record fails to sustain any finding that the entirety of the property described in plaintiff's claim of lien was or now is required for the convenient use and occupancy of the land on which the work of improvement upon which plaintiff bestowed its materials and labor is situated. It shows that the proposed service station site is not so required. The judgment must be reversed.

I

n the light of the foregoing conclusion it should be unnecessary to resolve the further question with respect to whether the steps taken by plaintiff to assert its lien reached the interest of the defendant Florence Badger in the property. Nevertheless the following comments are pertinent to the findings and conclusions of the trial court as they stand of record.

From the facts recited above it is clear that the plaintiff failed to give a prelien notice to defendant Florence Badger who appeared of record as a co-tenant of the property, it failed to name her in its claim of lien, and it failed to name her as a defendant in the action until long after the statute of limitations had run on an action to foreclose its claimed lien. Three theories are advanced to evade those defenses.

It is claimed and the court found that at all times the defendant Douglas Badger managed and controlled the interest of his wife, Florence Badger, in the real property the subject of plaintiff’s claimed lien. There is evidence to support this finding and defendants do not directly question it. It does not necessarily follow, however, as claimed by plaintiff and as found by the trial court, that the invoice mailed to the

A

The plaintiff claimed and the court found that plaintiff had named Florence Badger as a party defendant in the original complaint under the fictitious name of "Doe One." It is contended that having been• so named, the statute of limitations cannot be asserted with respect to the claim against her as she is named in the first and second amended complaints. (See Code Civ. Proc. § 474; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596 , 599-600 [ 15 Cal.Rptr. 817 , 364 P.2d 681 ]; Barnes v. Wilson (1974) 40 Cal.App.3d 199 , 202-205 [ 114 Cal.Rptr. 839 ]; Breceda v. Gamsby (1968) 267 Cal.App.2d 167 , 170-173 [ 72 Cal.Rptr. 832 ]; Garrett v. Crown Coach Corp. (1968) 259 Cal.App.2d 647 , 649-650 [ 66 Cal.Rptr. 590 ]; and Mishalow v. Horwald (1964) 231 Cal.App.2d 517 , 520-524 [ 41 Cal.Rptr. 895 ].) Plaintiff's attempt to treat Florence Badger as a fictitious defendant is unavailing because examination of the original complaint reveals that no cause of action has been alleged against any fictitious defendant. Ten fictitious defendants are named in the caption and leave is sought to amend the complaint to show their true names. It is not claimed, however, that any fictitious defendant is alone or with Doug Badger an "owner or reputed owner" of the property; that any fictitious defendant contracted with plaintiff alone or with Lee Bros. Value World. In short there are no allegations which purport to show how, why or in what manner any fictitious defendant should be charged. Mrs. Badger was never in fact served or formally substituted as a fictitious defendant. (See Union Tank etc. Co. v. Mammoth Oil Co. (1933) 134 Cal.App. 229 , 231-232 [ 25 P.2d 262 ].) In any event the lack of charging allegations in the original complaint renders it unavailable to rebut the running of the statutoly limitation period. In Gates v. Wendling Nathan Co. (1938) 27 Cal.App.2d 307 [ 81

Gates has been disapproved insofar as it indicates that a minor's aotion for wrongful death may become barred by the running of the statute of limitations during his minority. (See Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690 , 694 [ 36 Cal.Rptr. 321 , 388 P.2d 353 ]; Nolan v. Transocean Air Lines (1961) 365 U.S. 293 , 294-296 [ 5 L.Ed.2d 571 , 572-573, 81 S.Ct. 555 ].) It has otherwise been followed. (See Schroeter v. Lowers (1968) 260 Cal.App.2d 695 , 697 and 701 [ 67 Cal.Rptr. 270 ]; and Kolodziejski v. Hover (1954) 124 Cal.App.2d 731 , 733-734 [ 269 P.2d 163 ].) The principle that when there are general charging allegations against a fictitious defendant, they. may be liberally amended to defeat the statute of limitation should be distinguished. (See Barnes v. Wilson, supra, 40 Cal.App.3d 199 , 201, fn. 1 and 202-206; and Day v. Western Loan & Bldg. Co. (1940) 42 Cal.App.2d 226 , 230 and 234-235 [ 108 P.2d 702 ].) In the case establishing the liberal rule the court expressly stated, "Where a complaint sets forth, or attempts to set forth, a cause of action against a defendant designated by fictitious name and his true name is thereafter discovered and substituted by amendment, he is considered a party to the action from its commencement so that the statute of limitations stops running as of the date of the earlier pleading. [Citations]." (Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d at p. 599, italics added.)

The plaintiff contended, and the court found, that each of the defendants was estopped from asserting any statute of limitations defense to the action. The facts asserted in support of this proposition are found in a finding that defendant (who is not stated) and defendants' attorneys did innocently lead plaintiff and plaintiff's attorneys to believe that their pleadings were in order and that defendant Doug Badger was the sole owner of the land. (See Ginns v. Savage (1964) 61 Cal.2d 520 , 524-525 [ 39 Cal.Rptr. 377 , 393 P.2d 689 ]; Carruth v. Fritch (1950) 36 Cal.2d 426 , 432-434 [ 224 P.2d 702 , 24 A.L.R.2d 1403 ]; Holland v. Nelson (1970) 5 Cal.App.3d 308 , 313 [ 85 Cal.Rptr. 117 ]; Casey v. Anschutz (1967) 252 Cal.App.2d 9 , 16 [ 60 Cal.Rptr. 105 ]; and Estate of Pieper (1964) 224 Cal.App.2d 670 , 690-691 [ 37 Cal.Rptr. 46 ].) The only evidence which would support such a finding is evidence of communications between plaintiff's attorneys and the attorney for defendant Douglas Badger after the statute of limitations had run. The lien claim was filed December 18, 1967. The complaint was filed March Il, 1968, only a brief period before the 90-day limitation period expired. Any communication, including an admission by failure to deny in the original answer of the defendant Doug Badger filed May 16, 1972, could not estop the wife from asserting a right which arose over four years before. It should be further noted that at all times Mrs. Badger was a co-tenant of record; that she executed the lease, and was named in and executed the memorandum 9f lease which was recorded July 6, 1966; that the plaintiff referred to that memorandum of lease for a description of the property in its claim of lien recorded December 18, 1967; that plaintiff again referred to that memorandum, which reflected the true recorded ownership of the property in its complaint filed March 11, 1968; that the court found that such representations, if any, as led plaintiff to believe the husband was the sole owner of the land were innocently made; and that there was no reason for the wife to have legal representation until early in 1972 when plaintiff for the first time learned that the wife was an owner of record and took action against her. Under these circumstances the assertion of estoppel against the wife is entirely without foundation.

C

The court further found that at all times it was the intention of the defendants that their interest in the property be their community property, and that the property described in plaintiff's claim of lien was their community property. On the basis of these findings it is asserted

In this case there was no evidence as to the source of the funds which were used to acquire the property. Plaintiff concedes that it is basic law that when a husband and wife take title to property in joint tenancy that they take separate and equal interests. (Civ. Code, § 5110; Siberell v. Siberell (1932) 214 Cal. 767 , 773 [ 7 P.2d 1003 ], and Nevins v. Nevins (1954) 129 Cal.App.2d 150 , 154 [ 276 P.2d 655 ].) It relies on the principle that the character of property may be changed from separate to community by the agreement and mutual intent of the spouses, which may be evidenced by their conduct in relation to the property. (See Title Insurance etc. Co. v. Ingersoll (1908) 153 Cal. 1 , 5 [ 94 P. 94 ]; Estate of Kruse (1970) 7 Cal.App.3d 471 , 477 [ 86 Cal.Rptr. 491 ]; Steele v. Steele (1955) 132 Cal.App.2d 301 , 302-303 [ 282 P.2d 171 ]; and Cal. Family Lawyer (Cont. Ed. Bar 1962) § 4.13-4.15, pp. 106-109.) "`A determination by a trial court that the presumption has been rebutted is conclusive on a reviewing court unless it is manifestly without support in the

The only evidence to support the court’s finding is that which supports the finding, reading: “At all times, defendant, Doug Badger, managed and controlled the interest of his wife, Florence Badger, in the real property described in plaintiff’s claim of lien, on her behalf.” (Finding No. 28 (italics added).) As pointed out by plaintiff, the husband was the head of the family (Civ. Code, former § 5101, repealed Stats. 1973, ch. 987, § 2, p. 1898, operative Jan. 1, 1975), property may be held by the couple as joint tenants, tenants in common or as community property (§ 5104), and the respective interests of the husband and wife in community property were formerly under the management and control of the husband. (Id., former § 5105; revised Stats. 1973, ch. 987, § 4, p. 1898, operative Jan. 1, 1975.) It is a non sequitur to then conclude that all property managed by the husband is therefore community property. We have been furnished with no authority for the proposition that the wife solely by entrusting, or acquiescing in, the management of her separate property by her husband, thereby converts it to community property. In Title Insurance etc. Co. v. Ingersoll, supra, the court observed, “It may be conceded that the mere acquirement of the possession of a wife’s separate property by the husband, and his subsequent management and control of the same, all with her consent, do not show any intent on the part of the wife to make a gift of the property to the husband, or to change its status from separate to community property. The presumption in such a case appears to be that the property continues to be the separate property of the wife, and that the husband takes it in trust for his wife.” (153 Cal. at p. 5.) The court’s finding that the property was community property is not sustained by the record, and the action filed against the husband could in no way serve to bind the wife’s separate interest in the property as a joint tenant of record. (See Estate of Kruse, supra, 7 Cal.App.3d 471 , 477-478.)

The court also found that the husband was the reputed owner of the property described in the recorded memorandum of lease. It is obvious that this finding contains an inherent contradiction, because reference to the memorandum would disclose that the wife was one of the two named lessors. It may be that the finding can find some support in the testimony of the plaintiff’s president who testified that at the time he commenced his work on the supermarket it was a matter of general knowledge that Doug Badger and Redwood Electric were the reputed owners of the land on which the market was being constructed, and that he personally did

The judgment is reversed and the case is remanded to the trial court with instructions to revise its findings of facts and conclusions of law in accordance with the views set forth above and enter judgment for defendants accordingly.