California Civil Code Section 3129 - Interpretation
California Civil Code 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 claiming any estate therein shall be held to have been constructed, performed, or furnished at the instance of such owner or person having or claiming any estate therein and such interest shall be subject to any lien recorded under this chapter unless such owner or person having or claiming any estate therein shall give a notice of nonresponsibility pursuant to Section 3094." Section 3094 defined "'notice of nonresponsibility'" as a "written notice, signed and verified by a person owning or claiming an interest 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 statute. The notice of nonresponsibility must be provided "within 10 days after the person 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.)
In Kim v. JF Enterprises (1996) 42 Cal.App.4th 849, the appellate court explained: "Civil Code Section 3129 states that every work of improvement constructed, labor performed or materials furnished 'with the knowledge of the owner' shall be held to have been 'constructed, performed, or furnished at the instance of such owner . . . .' This statute creates a presumption that, where the 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. "
Therefore, "'where a noncontracting 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 liability for the work provided by . . . section 3094 . . . , he is estopped to deny that the work was done at his instance and request. Under such circumstances the claimant has a "direct contract with the owner" for the purposes of . . . section 3097 . . . and consequently is not required to give the notice prescribed therein. ' " (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 plaintiffs' 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.)