169 Cal.App.4th 665 (2008)
V.S. et al., Plaintiffs and Appellants,
v.
CLIFF ALLENBY, as Interim Director, etc., Defendant and Respondent.
No. B194798.
Court of Appeals of California, Second District, Division Seven.
December 22, 2008.
*666 The Alliance for Children's Rights, Laura Streimer, Natasha Frost; The Public Interest Law Project, Stephen Ronfeldt and Angela Schwartz for Plaintiffs and Appellants.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Leslie P. McElroy and John Venegas, Deputy Attorneys General, for Defendant and Respondent.

*667 OPINION
WOODS, J.

SUMMARY
The appellants successfully pursued an administrative and ordinary mandamus action for benefits beyond an initial 180-day period pursuant to the Aid to Families with Dependent ChildrenFoster Care (AFDC-FC) program while their great nieces and nephew were in their care. They had also sought an ordinary writ of mandate compelling Cliff Allenby, interim director of the Department of Social Services (DSS) at the time, to direct DSS's agents to take action pursuant to Welfare and Institutions Code section 16507.6 within 180 days so that others similarly situated would not lose entitlement to federal foster case funding for children in voluntary placement. Because we agree that the trial court should have expanded its ruling to mandate DSS compliance with the law, we reverse.

FACTUAL AND PROCEDURAL SYNOPSIS
V.S. and J.S. are the great aunt and great uncle of siblings R.R., E.J. and C.J. On July 9, 2003, J.J. (the children's mother) and the Department of Children and Family Services (DCFS) signed a voluntary placement agreement authorizing DCFS to place the children with the great aunt and great uncle for 180 days while the mother completed a drug rehabilitation program.[1] The children were found eligible and approved to receive federal financial participation funding.
On January 14, 2004, DCFS filed a petition requesting detention of the children after determining the mother had failed to complete the required rehabilitation program. That petition was granted.
In a notice of action dated April 2 and sent to the mother (but not the great aunt and great uncle), DCFS stated that the request for AFDC-FC payments for the children was denied effective April 1 because J.J. failed to meet all eligibility requirements for federal financial participation in AFDC-FC. The "specific requirement not met" was as follows: "There was no [j]udicial determination regarding the child[ren']s best interest within 180 days of the date of placement with regards to the voluntary agreement."
For a child placed with a relative, foster care payments may only be made if there is federal financial participation in the payment. (Welf. & Inst. Code, *668 § 11402, subd. (a).) Federal foster care benefits are limited to a maximum of 180 days unless there is a court finding made within this time period that continued placement is in the child's best interest. (42 U.S.C. § 672(e).) The placing agency "shall make any and all reasonable and necessary provisions for the care . . . and support of the minor . . . ." (Welf. & Inst. Code, § 16507.5, subd. (a).)
Welfare and Institutions Code section 16507.6 provides, in pertinent part, as follows:
"(a) If a minor has been voluntarily placed with the county welfare department subsequent to January 1, 1982, for out-of-home placement by his or her parents or guardians pursuant to this chapter and the minor has remained out of their physical custody for six consecutive months, the department shall do one of the following:
"(1) Return the minor to the physical custody of his or her parents or guardians.
"(2) Refer the minor to a licensed adoption agency for consideration of adoptive planning and receipt of a permanent relinquishment of care and custody rights from the parents pursuant to Section 8700 of the Family Code.
"(3) Apply for a petition pursuant to Section 332 and file the petition with the juvenile court to have the minor declared a dependent child of the court under Section 300.
"(4) Refer the minor placed pursuant to paragraph (2) of subdivision (a) of Section 16507.3 to an interagency administrative review board as may be required in federal regulations. One member of the board shall be a licensed mental health practitioner. The review board shall review the appropriateness and continued necessity of six additional months of voluntary placement, the extent of the compliance with the voluntary placement plan, and the adequacy of services to the family and child. If the minor cannot be returned home by the 12th month of voluntary placement services, the department shall proceed pursuant to paragraph (2) or (3).
"(5) Refer the minor placed pursuant to paragraph (1) of subdivision (a) of Section 16507.3 to an administrative review board as may be required in federal regulations and as described in subdivision (b) of Section 16503. If the minor cannot be returned home by the 12th month of voluntary placement services, the department shall proceed as described in paragraph (1) or (2)."
In May, the great aunt and great uncle contacted DCFS because they did not receive the anticipated payments, and then (representing themselves) *669 appealed the notice of action. DSS upheld the termination. The great aunt and great uncle then sought help from the Alliance for Children's Rights and requested a hearing; although timely, that request was denied by operation of law because DSS "was not able to act on it within 15 days after receiving it."
The great aunt and great uncle appealed the administration denial before the trial court, asserting three causes of action against DSS and its interim director at the time (Cliff Allenby). In their first cause of action, the great aunt and great uncle sought a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5, challenging DSS's termination of foster care benefits for the children. In their second cause of action, on behalf of themselves and all others similarly situated, they sought an ordinary writ of mandate pursuant to Code of Civil Procedure section 1085, directing Allenby to order his agents (the county child welfare departments) to comply with the mandatory requirements of federal and state law with regard to voluntary placement agreements (more particularly in their case, to either return the children to the parent or file a petition to have them declared dependents of the court) prior to the expiration of the 180-day period. In their third cause of action, they sought declaratory relief regarding this asserted obligation.
Rejecting DSS's argument to the contrary, the trial court found that DSS was under a duty to ensure that action pursuant to Welfare and Institutions Code section 16507.6 was taken within the initial 180 days of the voluntary placement and entered judgment in favor of the great aunt and great uncle pursuant to Code of Civil Procedure sections 1094.5 and 1085, commanding DSS and its director to vacate and set aside its prior decision terminating foster care benefits and to issue a new decision requiring payment of benefits with prejudgment interest (until such time DSS and its director determined in their discretion and consistent with the law discontinuing payments was justified). The remaining claims were dismissed as moot.
The great aunt and great uncle appeal.

DISCUSSION
In the view of the great aunt and great uncle, the trial court erred in finding their remaining causes of action moot in light of the relief granted to them as individuals. Although the trial court issued a writ in their favor individually, they say, the court erred in failing to grant the further relief they requested pursuant to Code of Civil Procedure section 1085 because DSS disputes its obligation to ensure its agents (the county child welfare agencies) take action within 180 days under Welfare and Institutions Code section 16507.6 and future children are likely to confront the same harm as the great aunt and great uncle.
*670 (1) For the reasons discussed in the analogous case of Timmons v. McMahon (1991) 235 Cal.App.3d 512 [286 Cal.Rptr. 620] (Timmons), we agree. As the Timmons court explained: "Code of Civil Procedure section 1085 authorizes a trial court to issue a writ of mandate `to compel the performance of an act which the law specifically enjoins . . . .' Mandamus is brought upon verified petition of a beneficially interested party. (Code Civ. Proc., § 1086.) `These terms translate into a two-sided requirement for mandamus: "[T]here must be a clear, present, ministerial duty upon the part of the respondent and a correlative clear, present, and beneficial right in the petitioner to the performance of that duty."' [Citation.] Finally, this extraordinary writ `must be issued, in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' (Code Civ. Proc., § 1086.)" (Timmons, supra, 235 Cal.App.3d at p. 517.)
In its respondent's brief, DSS maintains that the trial court did not err and does not dispute the trial court's finding with respect to appellants' individual claim that DSS had a duty to ensure that its agents took one of the five actions listed in Welfare and Institutions Code section 16507.6 within 180 days of the children's placement with the great aunt and great uncle. Rather, it argues, the trial court did not specify which of these five actions DSS's agent was required to take and none would "necessarily" result in establishing eligibility for foster care benefits. Further, DSS says, Welfare and Institutions Code section 16507.6 is not an eligibility statute so requiring adherence to this statute could create confusion by implying adherence will guarantee federal eligibility when, in fact, it will not. In any event, DSS says, any statewide remedy should be sought from the Legislature.
(2) "Turning to the essentials for mandamus" (Timmons, supra, 235 Cal.App.3d at p. 517), DSS has effectively conceded it has a ministerial duty (as the trial court found) to direct its agents (the county child welfare departments) to take one of the five actions listed in Welfare and Institutions Code section 16507.6 within the initial 180 days of placement and, as such, DSS's insistence it had no such duty was contrary to law. Further, "There is no question that the proper determination of eligibility requirements for AFDC-FC benefits is a matter of public right . . .," and the great aunt and great uncle, as citizens seeking to procure enforcement of DSS's public duty in this regard, meet the "public right/public duty exception to the requirement of beneficial interest." (235 Cal.App.3d at p. 518.) (3) Finally, as in Timmons, the great aunt and great uncle sought ordinary mandamus, but the trial court denied everything broader than the individual claim of the great aunt and great uncle; they were entitled as well to relief for successfully challenging DSS's position it had no duty to ensure one of the actions listed in Welfare and Institutions Code section 16507.6 is taken within the initial 180 days of voluntary placement.

*671 DISPOSITION

The judgment is reversed and the matter is remanded to the trial court with directions to issue a peremptory writ of mandate compelling the director to instruct or otherwise communicate to its agents the duty to take action pursuant to Welfare and Institutions Code section 16507.6 within 180 days of the date of any voluntary placement agreement. Appellants are entitled to their costs of appeal.
Perluss, P. J., and Zelon, J., concurred.
NOTES
[1]  The children had been removed from the mother's home pursuant to allegations of abuse and neglect.


506 F.2d 1321
165 U.S.App.D.C. 282
E. I. Du Pont De Nemours & Companyv.Environmental Protection Agency
73-2269
UNITED STATES COURT OF APPEALS District of Columbia Circuit
12/20/74

1
E.P.A.

ORDER SET ASIDE; OPINION TO FOLLOW


859 So.2d 931 (2003)
Ethel M. DAVIS, et al., Plaintiffs-Appellants,
v.
Dr. Steven M. ATCHISON, et al., Defendants-Appellees.
No. 37,832 CA.
Court of Appeal of Louisiana, Second Circuit.
October 29, 2003.
*933 Murphy J. White, Mansfield, for Appellants.
Robert G. Pugh, Jr., Shreveport, for Appellees, Steven M. Atchison, M.D. and William L. Overdyke, M.D.
Robert W. Robison, Jr., Baton Rouge, for Appellee, Willis-Knighton Medical Center.
Before WILLIAMS, CARAWAY and PEATROSS, JJ.
CARAWAY, J.
This medical malpractice action was instituted against two physicians who performed bilateral simultaneous total knee replacement surgeries on an eighty-two year old woman. The surgeries had been cleared by the patient's primary care physician despite her age and diabetic and hypertensive history. Though the surgery occurred without incident, the patient developed heart and respiratory difficulties in the recovery room. Thereafter, she experienced further complications and remained hospitalized until her eventual death nearly one month after the knee procedures. The trial court granted summary judgment in favor of both doctors. After de novo review, we affirm.

Facts
On February 17, 2000, Ethel Davis visited the offices of Dr. Steven Atchison, an orthopedic surgeon, with complaints of long-standing arthritic pain in both knees. Although Dr. Atchison recommended knee injections, Davis insisted that she desired bilateral knee replacement surgery because long-term conservative treatment had offered her no relief. Davis and her husband, William, inquired about the possibility of simultaneous bilateral knee replacement surgery. Dr. Atchison disclosed both the benefits and risks attendant to such surgery and Davis opted for the simultaneous procedure. Dr. Atchison informed Davis that she would be required to obtain a medical evaluation for preoperative clearance from a primary care physician. For that evaluation, Davis chose her long-time primary care physician, Dr. William Dillard, who approved her for the surgery on February 24, 2000.
On March 28, 2000, Davis underwent bilateral simultaneous total knee arthroplasties at Willis Knighton Medical Center without incident. Dr. Atchison, assisted by Dr. William Overdyke, performed the procedure on Davis's right knee. Dr. Overdyke was assisted by Dr. Atchison in performing the left knee procedure. Davis entered the recovery room "awake, alert and in stable condition." However, while in the recovery room, Davis's heart rate and blood pressure dropped and she experienced respiratory distress. She also had periods of unresponsiveness, during which she aspirated. Davis was later placed on a ventilator and required adjustments to her insulin dosage as her diabetes had become uncontrollable. Davis remained hospitalized until her death on April 26, 2000, due to an infection and the overall deterioration of her heart, lung, kidney and intestinal functions.
*934 William Davis and the eleven Davis children filed a medical review panel petition against Drs. Atchison and Overdyke and Willis Knighton Medical Center. The medical review panel unanimously rejected the Davis family claims, concluding that the dual surgeries were not precluded by her age and medical condition and posed no greater risk than a single knee replacement.
The Davis family instituted the present malpractice suit against the two surgeons and Willis Knighton Medical Center, specifically alleging that due to Davis's age and medical conditions, the physicians were at fault in performing the simultaneous knee replacement surgery which caused her death. Drs. Atchison and Overdyke filed motions for summary judgment supported by the findings of the medical review panel. After the trial court granted summary judgment in favor of the doctors and dismissed the malpractice action against them, this appeal ensued.

Discussion
On appeal, the plaintiffs contend that the summary judgment was inappropriate because there exists conflicting expert opinions as to whether the bilateral knee replacement should have been performed on Ethel Davis.
A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. This article was amended in 1996 to provide that the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon's Towing, 01-2837 (La.5/14/02), 817 So.2d 21. In 1997, the legislature enacted La. C.C.P. art. 966 C(2), which further clarified the burden of proof in summary judgment proceedings. This provision first places the burden of producing evidence for summary judgment on the mover (normally the defendant), who can ordinarily meet the burden by submitting affidavits or by pointing out the lack of factual support for an essential element of the opponent's case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Racine, supra, citing Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.8 (1999). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Racine, supra. Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Gray v. Investment Cars Unlimited, Inc., 36,691 (La.App.2d Cir.1/29/03), 836 So.2d 1184, writ denied, 03-0670 (La.5/2/03), 842 So.2d 1108.
Expert opinion testimony in the form of affidavit or deposition may be considered in support of or opposition to a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam, 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 236. See also La. C.C.P. art. 967 as amended by 2003 La. Acts, No. 545. Even so, the trial court should not make credibility determinations on summary judgment nor attempt to evaluate the persuasiveness of competing scientific studies. If a party submits admissible expert opinion evidence in opposition *935 to a motion for summary judgment which is sufficient to allow a reasonable juror to conclude that the expert's opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at trial. Independent Fire Ins. Co., supra.
From our review of the evidence, we agree with the trial court's dismissal of the defendants from this malpractice action. In support of their motions for summary judgment, the physicians submitted the favorable opinion of the medical review panel which concluded that the evidence was insufficient to support the conclusion that Drs. Atchison and Overdyke failed to meet the applicable standard of care and that the subject conduct was not a factor in causing the claimed damages. Additionally, both doctors submitted their own affidavits with a narrative summary by Dr. Atchison of his treatment of Davis. Both doctors attested that their treatment and that of the other physician was within the applicable standard of care. Finally, the doctors submitted copies of five medical journal articles which compared bilateral knee replacement with staged replacement.
A favorable affidavit by the treating physician and a favorable opinion by the medical review panel are sufficient to establish an absence of factual support for a plaintiff's claims. Savage v. McConnell, 36,441 (La.App.2d Cir.10/23/02), 830 So.2d 414; Hinson v. Glen Oak Retirement Home, 34,281 (La.App.2d Cir.12/15/00), 774 So.2d 1134. On these grounds, we find that the evidence presented by Drs. Atchison and Overdyke is sufficient to point out an absence of factual support for the malpractice claim.
In opposition to the summary judgment, plaintiffs submitted only the report of Dr. Dale Bernauer who stated:
I think that doing a bilateral total knee on a patient this age with the medical problems is ill advised. Whether it constitutes negligence, I do not feel that per se this is negligent. I do think it is not the optimum thing to do.... As stated, I cannot say it was negligent to do both knees, but I think it is ill advised on a patient this age with medical problems, and she would have been better served with doing one total knee and then doing the other one at a later date being sure that all medical problems were taken care of before this.
In a medical malpractice action, the plaintiff must prove the applicable standard of care, that the physician lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and the causal connection between the breach and the resulting injury. La. R.S. 9:2794(A); Britt v. Taylor, 37,378 (La.App.2d Cir.8/20/03), 852 So.2d 1128; Orea v. Brannan, 30,628 (La.App.2d Cir.6/24/98), 715 So.2d 108. Generally at trial, a plaintiff must prove the applicable standard of care through expert medical testimony unless, "the physician does an obviously careless act ... from which a lay person can infer negligence." Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228 at 1233; Strange v. Shroff, 37,353 (La.App.2d Cir.7/16/03), 850 So.2d 1077. Opinions from medical professionals are necessary for the determination of the applicable standard of care and whether or not that standard was breached. Strange, supra. Expert testimony is especially necessary where the defendant in a medical malpractice action has filed a motion for summary judgment supported by expert opinion evidence that his treatment met the applicable standard of care. Britt, supra.
The plaintiffs' argument does not insist that no surgery should have been undertaken *936 upon Davis, but only that a shorter, single knee replacement surgery should have occurred. The plaintiffs do not show that the actual incisions upon Davis's knee were negligently performed and do not demonstrate how the complications Davis encountered in the recovery room relate to a negligent act by either defendant.
The only evidence presented by plaintiffs in opposition to the summary judgment was that of Dr. Bernauer, who twice concluded that the decision to perform simultaneous bilateral knee replacement surgery on Davis, while ill-advised, did not breach the standard of care so as to constitute negligence. Moreover, the report of Dr. Bernauer neither sets forth the applicable standard of care nor states that the actions of the physicians were the cause of plaintiffs' claimed damages. This evidence fails to produce factual support sufficient to establish that plaintiffs will be able to prove at trial the applicable standard of care, a breach thereof or causation. In these circumstances, summary judgment in favor of Drs. Atchison and Overdyke was appropriate. The judgment of the trial court is affirmed at plaintiffs' costs.
AFFIRMED.


403 F.2d 836
Thomas J. RICKETSON, Appellant,v.SEABOARD AIRLINE RAILROAD COMPANY, Appellee.
No. 25961.
United States Court of Appeals Fifth Circuit.
Nov. 15, 1968, Rehearing Denied Dec. 5, 1968.

William Murrell, Jr., Orlando, Fla., Paul Kickliter, Tampa, Fla., for appellant.
Ronald D. McCall, John W. Boult, Tampa, Fla., Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, Fla., for appellee.
Before WISDOM and AINSWORTH, Circuit Judges, and JOHNSON, District judge.
AINSWORTH, Circuit Judge:

1
In this Florida diversity personal injury suit the District Judge directed a verdict for defendant at the close of all of the evidence.  We must determine whether the evidence was sufficient to require submission to the jury for its verdict.  Being satisfied that reasonable men could differ as to the conclusions to be reached on the facts and that the case therefore should have been sent to the jury for its ultimate verdict, we reverse and remand for a new trial.

2
Thomas J. Ricketson, appellant, employed as a bulldozer operator by Blocks Terminal on a dock owned and maintained by defendant Seaboard Airline Railroad Company, was injured when the bulldozer which he was operating slipped from the dock and fell into Tampa Bay, Florida, on February 23, 1966.  His complaint alleged negligence by the defendant in maintaining and operating unsafe premises, which negligence proximately caused the accident.  Defendant denied negligence and asserted the affirmative defenses of contributory negligence and assumption of risk.

3
The evidence shows that plaintiff's employer had contracted with defendant for the spreading of phosphate ore in the hold of the SS MANILA which was being loaded at defendant's dock on the day of the accident.  Plaintiff's job was to load and level the phosphate in the hold of the ship.  The dock is approximately six hundred feet long, and three entrances, one at each end and one in the middle, lead to it.  The accident occurred at approximately the middle of the dock.  At one side of the dock is an elevator containing the ore to be loaded, supported by steel stanchions which are eight to ten feet apart.  In order for a bulldozer to traverse the dock, it is necessary that it be driven around the stanchions.  This is a difficult operation.  The stanchions are wider at the bottom than at the top.  Nine inches of the sixteen-inch tractor tread must hang off the dock when the tractor moves around the stanchions.  The overall width of the bulldozer and its blade is six feet, ten and a half inches.  The dock is approximately five feet, one-half inch wide.  In normal operation, the cleats of the bulldozer hang over the outside of the dock six or seven inches.  By continual contact with ships berthed for loading the dock has become progressively narrow.  Recoil springs under the dock have deteriorated from corrosion.  The wooden planking of the dock itself, as a result of being 'chewed up' from the steel cleats of bulldozers, is in need of repair.  Plaintiff and other bulldozer operators had complained to his supervisor and to defendant's representative about the deteriorating condition of the dock.

4
On the morning of the accident it had been raining for two hours and the phosphate on the dock had become wet and slippery.  Plaintiff brought his tractor to the land side of the elevator.  Another bulldozer operator preceded him who continued to drive straight ahead, heading for the far entrance to the dock.  Plaintiff, however, turned into the middle entrance to the dock and when he approached the place at which he was to go into the hold of the ship, he discovered that the dock had been 'mashed in' to approximately three feet and it was impossible either to proceed or turn around because of the narrowness of the dock.  He then attempted to back out at a slow rate.  He cleared the first stanchion but when he reached the second one the tractor slipped from the dock and plunged into the bay.1  He testified that he had never seen the dock as narrow as it was on the day of the accident.  Plaintiff had not operated a bulldozer for two or three weeks prior to the accident.  During that time, however, he had been handling tarpaulins on vessels at the dock and it was necessary to traverse the dock to reach the ship.

5
Plaintiff had been operating a bulldozer at the same place for approximately eleven years, using the same type of tractor for approximately five years.  Phosphate falls from the belt used in loading phosphate ships and plaintiff was accustomed to seeing the substance on the dock.  He also knew that phosphate becomes slick after a rain which causes the bulldozer to slip.  He knew that the dock would be slippery on the morning of the accident, but he did not pay too much attention to it as he had experienced slipping sensations in the past when there was a large amount of wet phosphate on the dock.  He had gone forward over the same portion of the dock a few minutes before the accident.

6
Other witnesses testified in regard to the bad state of repair of the dock.  One bulldozer operator had slipped off the dock at the same spot where plaintiff's accident occurred.  One operator testified that when there was difficulty in going around the stanchions, the hook from the ship that picks up the bulldozers was used to hold the tractor while the operator went around the stanchion.

7
Defendant introduced a single witness, Verne Ebinger, a supervising stevedore for Blocks Terminal.  He did not witness the accident but was on the scene shortly thereafter.  He testified that ships coming alongside will bump, nudge or hit the dock, that this caused the indentation, and that this condition existed approximately three or four months before the accident, but that no repairs had been made during that time.  Mr. Ebinger said that he had told all of the bulldozer operators that the dock had been pushed in at that point and had warned them to avoid using the center ramp.  However, plaintiff and two other bulldozer operators testified that they had not been given any warning not to go on the ramp where the accident occurred.

8
The Trial Court should not direct a verdict unless both the facts and the inferences to be drawn therefrom point so strongly in favor of one party that the Court believes that reasonable men could not come to a different conclusion.  See 5 Moore, Federal Practice P50.02(1), p. 2320.  This standard has been expressed by this Court in various ways.  In Herron v. Maryland Casualty Company, 5 Cir., 1965, 347 F.2d 357, 358, we said:

9
'The case should be submitted to the jury if the evidence is of such a character that reasonable men in an impartial exercise of their judgment may reach different conclusions.'

10
Accord, Lyle v. R. N. Adams Construction Co., 5 Cir., 1968, 402 F.2d 323; McPherson v. Tamiami Trail Tours, Inc., 5 Cir., 1967, 383 F.2d 527; Mixon v. Atlantic Coast Line Railroad Company, 5 Cir., 1966, 370 F.2d 852; Wright, Federal Courts 95 at 370.

11
In Swift & Co. v. Morgan & Sturdivant, 5 Cir., 1954, 214 F.2d 115, 116, 49 A.L.R.2d 924, we said:

12
'It is well settled law that cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact; and that negligence and what is the proximate cause of damages are questions of fact to be properly submitted to and determined by jurors from a consideration of all the attending facts and circumstances.'

13
In General Portland Cement Company v. Walker, 5 Cir., 1961, 293 F.2d 294, this test is succinctly expressed:

14
'A trial judge takes the decision away from the jury when reasonably men cannot differ-- then and then only.'2

15
In directing a verdict for defendant, the District Judge made the following comments:

16
'Upon consideration, I found that, after giving full weight and credence-- that is, believability-- to all of the evidence, it was apparent from the testimony of Mr. Ricketson and his witnesses that there were obvious dangerous conditions on the dock which had continued for a long period of time, which Mr. Ricketson assumed by working there; and that for that reason and others, I was required under the law to direct a verdict for the Defendant; that is, the railroad, and against the Plaintiff.'

17
We cannot ascertain from the remarks of the District Judge whether he directed a verdict upon the theory of plaintiff's contributory negligence or his assumption of risk, or both.3  Nevertheless it is evident that the Trial Judge attributed to plaintiff knowledge-- actual or constructive-- of certain dangerous conditions which brought about the unfortunate mishap.  While there is a reasonable basis for concluding that plaintiff knew that the dock would be slippery because of the wet phosphate, there was a direct conflict in the testimony as to whether plaintiff had been warned or was aware of the indentation in the dock which caused him to back up, and which in turn apparently caused the bulldozer and its driver to plunge into Tampa Bay.  The issue of credibility is one for jury determination.  Isaacs v. American Petrofina, 5 Cir., 1966, 368 F.2d 193; American Fidelity & Casualty Company v. Drexler, 5 Cir., 1955, 220 F.2d 930.  The jury had the right to believe either version of the account.  Whether or not plaintiff had constructive notice of the indentation in the dock and whether he knew that such a condition would have made the area impassable were also questions of fact for the jury to determine.  Another important factual issue for jury determination was whether the duty owed by defendant to plaintiff to provide a safe working area had been satisfied.  Plaintiff introduced uncontradicted evidence of acts by defendant from which the jury reasonably could have inferred actionable negligence, resulting in a verdict for plaintiff in the absence of contributory negligence or assumption of risk, such as the deterioration of the wooden planking on the dock, failure of the defendant to repair that condition and the 'pushed-in' condition of the dock despite its existence for two or three months prior to the accident, and maintenance by the defendant of a dock narrower than the width of the bulldozers which operated over it.

18
As this Court has said many times, issues of negligence are questions proper for jury determination.  See Stace v. Watson, 5 Cir., 1963, 316 F.2d 715; R. J. Reynolds Tobacco Company v. Hudson, 5 Cir., 1963, 314 F.2d 776; Swift & Co. v. Morgan & Sturdivant, 5 Cir., 1954, 214 F.2d 115, 49 A.L.R.2d 924.

19
Under all of the foregoing circumstances we are of the opinion that the District Court incorrectly applied the test for directing a verdict.

20
Reversed and remanded for a new trial.

1
 Plaintiff described the area and the operation as follows:
'Q. Mr. Ricketson, I want you to point out to the jury the location of those steel stanchions that support the elevator and the actual area that your dozers had to pass to perform your duties in the loading of the hold of the ship.  'A.  All right.  Here is the steel stanchion here, holding the elevator up.  You have to come around on the outside to pass these things.  It is impossible to go any other way.  And in doing so, you have to come over all this bad part, all along the dock, to get past it.  That is where the narrow places are in here.  Each time the ship butts up against it, it pushes the dock in, so the dock keeps getting narrower each time a ship ties up.  'Q.  Well, now, on this particular day, when you went down the ramp or runway and found it had been smashed or squashed in, as I believe you put it, and that you couldn't go across at all; what did you have to do to get out of there? 'A.  I had to either back out or try to turn around on the dock.  If I turned around on the dock, both ends of the tractor would be off hanging over the dock.  'Q.  Over the water? 'A.  Over water, yes.  So it was a lot simpler just to back out.'

2
 See also Isaacs v. American Petrofina, 5 Cir., 1966, 368 F.2d 193; Wright, Federal Courts 95, p. 370.  It is noted that the law of Florida is to the same effect.  Nelson v. Ziegler, Fla., 1956, 89 So.2d 780

3
 In cases where the defenses of assumption of risk and contributory negligence overlap, it is immaterial which label we attach to them.  See Gavel v. Girton, Fla.App., 1966, 183 So.2d 10.  'The doctrine of assumption of risk is only an engraftment upon the well established law applicable to contributory negligence.'  Martin v. Plymouth Cordage Company, Fla.App., 1968, 209 So.2d 481.  There is little distinction between the two defenses.  Both partake of exposure by plaintiff to danger, knowledge of which is attributed to plaintiff; actual knowledge in assumption of risk, and at least constructive knowledge in contributory negligence.  As said by the Supreme Court of Florida in Bartholf v. Baker, Fla., 1954, 71 So.2d 480, and reiterated in Martin v. Plymouth Cordage Company, supra at 483:
'Voluntary exposure is the bedrock upon which the doctrine of assumed risk rests.  Appreciation of the danger is an essential to the defense of assumption of risk, or of contributory negligence, as is knowledge of the condition which creates the peril.'
Under Florida law contributory negligence alone is no bar to recovery; the negligence must be a proximate cause of the accident.  Bessett v. Hackett, Fla., 1953, 66 So.2d 694; Kuhn v. Telford, Fla.App., 1959, 115 So.2d 36; Nelson v. Ziegler, Fla., 1956, 89 So.2d 780.


70 F.Supp.2d 137 (1999)
Joseph M. MENDOZA and Lionel Goodman, Plaintiffs,
v.
CITY OF ROME; Police Department of the City of Rome, New York; Merino Ciccone, Individually and as Chief of Police of the City of Rome; Joseph Griffo, Individually and as Mayor and Public Safety Commissioner of the City of Rome; Ray Arcuri; Dominic Coriglino; Fred Rebinski; Investigator John Keyes; and Other Unknown Police Officers of the City of Rome, Individually and as Police Officers of the City of Rome; and the County of Oneida; Oneida County Sheriff's Department; Mary Wilson; Charles Schedarie; and Other Unknown Members of the Oneida County Sheriff's Department, Individually and as Deputy Sheriffs of the Oneida County Sheriff's Department,[1] Defendants.
No. 96-CV-1970.
United States District Court, N.D. New York.
October 5, 1999.
*138 *139 Law Offices of Kenneth P. Ray, P.C., Utica, New York, for plaintiffs; Charles W. Watson, of counsel.
Office of the Corporation Counsel, City of Rome, Rome, New York, for defendants the City of Rome; the City of Rome Police Department; Merino Ciccone; Joseph Griffo; Ray Arcuri; Dominick Coriglino; Fred Rebinski; John Keys; and Other Unknown Police Officers of the City of Rome; Gregory J. Amoroso, of counsel.
Gorman, Waszkiewicz, Gorman & Schmitt, Utica, New York, for defendants County of Oneida, Oneida County Sheriff's Department; Mary Willson; Charles Scheiderich; and Other Unknown Members of the Oneida County Sheriff's Department; Bartle J. Gorman, of counsel.

MEMORANDUM DECISION AND ORDER
MUNSON, Senior District Judge.
Plaintiffs' instant action, filed pursuant to Title 42 U.S.C. §§ 1983 and 1988, alleges defendants used excessive force and falsely arrested plaintiffs in violation of their rights under the First, Fourth, Fifth, Eight and Fourteenth Amendments of the United States Constitution. They seek compensatory and punitive damages, as well as attorneys fees and costs. Currently before the court are defendants' motions for summary judgment, which plaintiffs oppose. After careful consideration, and for the reasons that follow, the court grants defendants' motions and dismisses plaintiffs' complaint.

BACKGROUND
At about 9:50 p.m. on September 12, 1994, several Oneida County Sheriff's Department ("OCSD") deputies  Warcup, Willson, Dodge and Bauer  arrived at the home of Albert Barnes in Lee, New York to investigate an armed robbery and shooting that had taken place there earlier that evening. Barnes told the deputies that his house had been entered by two males, one black the other white. Both were about six feet tall and weighed between 170 and 180 pounds. Barnes informed the police that the black male had shot him in the leg during an attempted robbery. Deputy Warcup radioed the details of the crime and the suspects' descriptions to the OCSD's dispatcher, as well as to other OCSD patrols in the area.
Plaintiffs Lionel Goodman and Joseph Mendoza, meanwhile, were driving along in a flatbed pickup truck through Lee. Goodman is black; Mendoza is white. Both wore baseball caps that evening.
Following their meeting with Barnes, deputies Dodge and Bauer were instructed to investigate a report of a light colored flatbed pickup truck occupied by a black and a white male that just had been observed *140 in the area at the intersection of Skinner Road and Lee Valley Road in Lee. They proceeded to this intersection in their patrol car and were told by Lee fire department members that moments earlier the described vehicle had turned south onto Lee Valley Road from Skinner and was heading toward Route 69. Dodge and Bauer radioed this information to other patrols in the vicinity.
At 10:20 p.m., the OCSD notified Deputy Chrysler to report with his K-9 to the Barnes' residence. Within a half hour, Chrysler was heading in his own vehicle on Route 69 from Rome toward Lee. While en route, he received a broadcast that two male suspects, one black and one white, traveling in a pickup truck with a flatbed, were heading toward Route 69 on the Lee Valley Road. The deputy continued along Route 69 until he saw the suspects' vehicle plaintiffs' truckpass him heading in the opposite direction. He then turned his vehicle and gave chase. Roughly two miles later, he caught up with the truck and called the OCSD's dispatcher, Deputy Schrader. Chrysler advised that he was following a flatbed pickup truck, with two males wearing baseball caps, approaching Rome, New York. Schrader directed other patrols to this location.
Deputy Mary Willson had left the crime scene and was on her way to St. Elizabeth's Hospital in Utica, New York, to interview the crime victim further. En route, she, too, monitored the dispatcher's communication concerning the suspects' truck. She notified the dispatcher of her location and was instructed to assist Deputy Chrysler. At about this time, she saw both vehiclesthe suspects' and Chrysler's pass her going in the opposite direction, so she made a quick 180 degree turn, approached plaintiffs' vehicle, and activated her patrol car's emergency lights.
At approximately 10:30 p.m., the Rome Police Department ("RPD") received a teletype from the OCSD that informed them of the armed robbery and shooting in nearby Lee. It described the two suspects as black male and a white male wearing baseball hats and driving a flatbed pickup truck. RPD Officer Jay DiMaggio, who received the teletype, distributed it by telephone to other RPD officers, including defendant Dominick Corigliano.
About twenty-five minutes later, RPD Officer Scott Hall heard a radio transmission from the OCSD stating that a vehicle believed to be involved in the Lee armed robbery was proceeding east on Erie Boulevard in Rome, coming from the direction of the Town of Lee. Hall drove to Erie Boulevard and observed plaintiffs' flatbed pickup truck traveling the street, followed by a small dark colored vehicle and an OCSD vehicle with its emergency lights flashing. Officer Hall activated his emergency lights and likewise gave chase.
When the plaintiffs' truck pulled into a parking lot, Willson pulled along its driver's side. She exited her patrol car, removed her service pistol, and pointed it in the direction of plaintiffs' vehicle.
Corigliano had heard a radio transmission that the OCSD had stopped two suspects at a parking lot at the intersection of Erie Boulevard and South Madison Street, so he drove his police vehicle to that site. The several spotlights from the OCSD's patrol cars illuminated the truck and enabled Corigliano to see that its two occupants were a black male and a white male each wearing a baseball cap. Thus, while Willson aimed her sidearm at plaintiffs' truck, Corigliano addressed plaintiffs over his patrol car's public address system. With the OCSD's consent, he commanded plaintiffs to step out of the pickup truck with their hands on their heads and to lie on the ground. Plaintiffs obeyed these commands and exited their vehicle. Willson covered Bauer as he approached the vehicle's driver's side and handcuffed Goodman; Mendoza was handcuffed on the opposite side of the vehicle.
Willson did not recognize either of these people and had no physical contact with them. She left the location shortly after *141 11:00 p.m. and continued to St. Elizabeth's Hospital in Utica to interview the crime victim. For his part, Hall observed plaintiffs' detention from his patrol car, then left the vicinity. RPD Officer Ray Arcuri, also a defendant in this action, observed the stop from a street next to the parking lot containing the pickup truck. Several spectators were approaching the parking lot from Adams Street and Officer Arcuri drove his patrol vehicle to the intersection of Adams and South Madison Streets and notified the advancing spectators to return to their cars and depart the area. He remained at the intersection for about two minutes before leaving the area.[2]
In addition to Deputy Willson, several other members of the OCSD arrived at the scene, namely deputies Ruhm, Dodge, Chrysler and Bauer.[3] Following plaintiffs' compliance with Corigliano's orders, Ruhm searched the interior of the passenger side of the vehicle, while Dodge searched the interior of the driver's side of the truck. Ruhm attempted to search a locked tool box behind the vehicle's cab, but it was locked. Plaintiff Goodman told him where the tool box key was located; and once the box was opened, the deputies discovered automobile parts. No weapons or evidence of the robbery were found as a result of these searches.
Goodman and Mendoza were interviewed. They told the officers that they were returning from purchasing automobile transmission parts in the Town of Lee, and a telephone call confirmed this information. Plaintiffs were uncuffed and released immediately, and the deputies explained what had occurred and why they were stopped. The stop and detainment lasted approximately twenty minutes.

DISCUSSION

I. Defendants' Motions
Two motions are before the court: the Rome defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, whereas the Oneida defendants have labeled their motion both as a motion for summary judgment under Rule 56, or, in the alternative, as a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). Rather than considering the alternative motion to dismiss, the court will treat both motions as ones for summary judgment: both plaintiffs and defendants have referred to documents outside of the pleadings, meaning that "all parties [have been] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b)(6).[4]
Rule 56 allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A motion for summary judgment may be granted when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that *142 there is a genuine issue for trial." Fed. R.Civ.P. 56(e). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See Id. at 250-251, 106 S.Ct. at 2511.
The thrust of plaintiffs' argument is that summary judgment is premature because discovery has not been completed. Admittedly, Rule 56 permits courts to review depositions, answers to interrogatories, and admissions on file in ruling on summary judgment motions, but does not require that discovery take place before a motion for summary judgment can be considered. See Banks v. Mannoia, 890 F.Supp. 95, 97 (N.D.N.Y.1995) (McAvoy, C.J.). Indeed, summary judgment can and often should be granted without discovery. Id. Problematically, plaintiffs request additional discovery merely by reference to Rule 56(f)the rule governing further discovery and their putative need for it in an unsworn opposition document entitled "STATEMENT OF RELIEF REQUESTED." This document, however, is not an adequate substitute for a Rule 56(f) affidavit.
"The purpose of the affidavit is to ensure that the nonmoving party is evoking the protections of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition." First Chicago International v. United Exchange Co. Ltd., 836 F.2d 1375, 1380 (D.C.Cir.1988). Moreover, the failure to file an affidavit under Rule 56(f) is in itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate. See Burlington Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985). Even if plaintiffs had followed the requisite procedure, the court still finds no basis for further opportunity for discovery. This Circuit has established a four-part test for the sufficiency of an affidavit submitted under Rule 56(f). The affidavit must include the nature of the uncompleted discovery; how the facts sought are reasonably expected to create a genuine issue of fact; what efforts the affiant has made to obtain these facts; and why those efforts were unsuccessful. See Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir.1989). "A `bare assertion' that the evidence supporting a plaintiff's allegation is in the hands of the defendant is insufficient to justify a denial of a motion for summary judgment under Rule 56(f)." Sundsvallsbanken v. Fondmetal, Inc., 624 F.Supp. 811, 815 (S.D.N.Y. 1985) (quoting Contemporary Mission, Inc. v. United States Postal Service., 648 F.2d 97, 107 (2d Cir.1981)).
This case has been extant for a considerable time. The complaint was filed On December 16, 1996 and, according to the record, all discovery was to be completed by September 1, 1998. Plaintiffs have had ample time during this period to complete their discovery efforts and conduct depositions. While it true that the moving defendants requested a discovery conference, they did so to obtain the court's assistance concerning alleged incomplete discovery answers submitted by the plaintiffs. Prior to filing responsive papers on the instant motion, moreover, plaintiffs never requested an extension of the discovery period. There has been no showing of how plaintiffs' ability to obtain information from the defendants was impeded or restricted. A party who both fails to use the time available for discovery and takes no steps to seek more time until after a summary judgment motion has been filed need not be allowed more time for discovery. Plaintiffs have had ample time in which to pursue discovery that they now claim is essential. Cf. Person v. New York Post Corp., 427 F.Supp. 1297, 1301 (E.D.N.Y.1977).
Defendants, moreover, have provided detailed affidavits from the police officers *143 describing the pursuit, brief investigative stop and release of the plaintiffs, while plaintiffs have offered no objective facts or evidence exhibiting inappropriate conduct by defendants. Plaintiffs have failed to meet the requirements of the test set forth in Hudson River Sloop Clearwater v. Dept. of the Navy, and they have had a full and fair opportunity to discover facts relevant to their claims. Insofar as plaintiffs attempt to raise an objection under Rule 56(f), that objection is denied and the court will address the instant motions.

II. Detaining Suspects
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer has the right to stop and detain a citizen if the officer's action was reasonable. Police making a Terry stop, however, must be able to elicit something more than an "inchoate and unparticularized suspicion or hunch." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citation omitted). The police must denote "specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion." Id. at 12, 109 S.Ct. at 1588 (citation omitted). Under Terry and its progeny, an investigating officer may briefly detain an individual for questioning so long as the officer has "a reasonable suspicion supported by clearly defined facts that criminal activity may be afoot." Id. at 7, 109 S.Ct. at 1585. If an investigative stop is appropriately premised, its scope and duration must be reasonable. See United States v. Tehrani, 49 F.3d 54, 58 (2d Cir.1995).
A circumscribed stop does not transgress the Constitution, even though probable cause may be wanting. See United States v. Glover, 957 F.2d 1004, 1008 (2d Cir.1992). Additionally, the officer then may frisk the individual for weapons if the officer reasonably believes the person to be armed and presently dangerous. See Terry, 392 U.S. at 21-24, 88 S.Ct. at 1879-83. An otherwise intrusive detention has been found to be a protected Terry stop where police had a reasonable basis to believe the suspect was carrying a weapon or otherwise menacing. Even in cases where police have handcuffed or place persons in patrol cars, courts have determined that under the particular circumstances in each given case, the seizures were valid Terry stops rather than full scale arrests. See United States v. Parr, 843 F.2d 1228, 1230 (9th Cir.1988); see also Dempsey v. Town of Brighton, 749 F.Supp. 1215 W.D.N.Y.1990, aff'd without opinion, 940 F.2d 648 (2d Cir.), cert. denied, 502 U.S. 925, 112 S.Ct. 338, 116 L.Ed.2d. 278 (1991) (no constitutional violation during investigative stop where police had unholstered guns, handcuffed plaintiff and conducted pat down search for weapons because plaintiff resembled bank robbery suspect and police were reasonable in investigating him); United States v. Lechuga, 925 F.2d 1035, 1039-40 (7th Cir.1991) (police may, in appropriate circumstances, block suspect's vehicle, order suspect to lie and the ground and detain suspect for long periods while the police check for outstanding warrants); Michigan v. Long, 463 U.S. 1032, 1050 n. 14, 103 S.Ct. 3469, 3481 n. 14, 77 L.Ed.2d 1201 (1990) (police may make area search for weapons during investigative stop in situations where officers have a reasonable belief that suspect is potentially dangerous to them).
More specifically, in evaluating whether an investigative stop is reasonable under the Fourth Amendment, the reviewing court must determine "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S.Ct. at 1879. Under the first element of this inquiry, an investigative stop does not meet the requirements of the Fourth Amendment unless "specific articulable facts, together with reasonable inferences from those facts, reasonably warrant suspicion" *144 that the individual stopped was engaged in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975). Under the second element, "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop ... the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983).
In this case, the defendant police personnel had reasonable grounds for believing plaintiffs might be suspects in the commission of serious crimes. It is undisputed that two burglars entered Barnes' dwelling in Lee, New York on September 12, 1994, and that he had been shot by one of the intruders. Barnes described the duo to the police at the crime scene as a black and a white male, each about six feet tall and weighing between 170-180 pounds, and stated the black male had fired the shot that wounded him. One of the investigating officers then radioed this information to the OCSD's dispatcher and other OCSD patrol cars operating in the area. This dispatcher further disseminated the crime report with the suspects' description to other police patrols and law enforcement departments in the area.
Police personnel in the vicinity received the report of the crime and the suspects' description and immediately instituted a search for the culprits. A truck with two occupants, a black driver and a white passenger, coming from the direction of the crime scene, was soon located by police patrols and detained for investigation. As discussed above, after the truck had been stopped, officers drew their guns and ordered the truck's occupants  plaintiffs  to exit and lie on the ground. They were handcuffed and frisked. The frisk and search of the truck yielded no weapons or evidence tying plaintiffs to the armed intrusion. Upon inquiry as to their whereabouts during the time the Barnes was shot, plaintiffs stated they were purchasing automobile parts. The officers on the scene quickly verified this information with a phone call and immediately released plaintiffs.
Defendants comported themselves properly: serious crimes, including a shooting, just had been committed and the plaintiffs, who were traveling from the direction of the crime scene, resembled the description of the perpetrators. Under the conditions, the officers were justified in acting cautiously and it was not unreasonable to conclude that the plaintiffs, who resembled the suspects, had a gun and were willing to use it. The police diligently and commendably pursued a means of investigation that was likely to confirm or dispel their suspicions. See United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). Plaintiffs were handcuffed only briefly and defendants made speedy and appropriate inquiries in a plausible way which led to their quick release. In United States v. Tehrani, 49 F.3d 54, 61 (2d Cir.1995), the Court of Appeals held that a thirty minute detention based on reasonable suspicion is not, per se, too long: the time of the investigative stop here was approximately twenty minutes, and likewise "no longer than [was] necessary to effectuate [its] purpose." Royer, 460 U.S. at 500, 103 S.Ct. at 1325.

III. Qualified Immunity
As the court has found infra, the defendants who took part in the various aspects of plaintiffs' brief detention acted reasonably under Fourth Amendment criteria. However, even if the court had determined that there was insufficient basis for the stop, or that the stop was too long, the officers are safeguarded by qualified immunity.
Qualified immunity is a defense that, if proven, shields government agents from individual liability for civil damages insofar as their conduct does "not *145 violate clearly established statutory or constitutional rights of which a reasonable person would have known." Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2728, 73 L.Ed.2d 396 (1982)). Even if the rights in question are clearly established, a government actor may still be shielded by qualified immunity if "it was objectively reasonable for the public official to believe that his acts did not violate those rights." Kaminsky, 929 F.2d at 925.
Police officers are protected from § 1983 liability if it was "objectively reasonable" for them to believe they were acting in a way that did not violate a clearly established federal right. Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995). The police officers involved in the stop of the plaintiffs are entitled to qualified immunity on the grounds that their actions were objectively reasonable unless "no officer of reasonable competence could have made the same choice in similar circumstances." Id. at 420-21. The facts surrounding the plaintiff's investigative stop have already been detailed in this memorandum and the court finds that reasonable police officers certainly could have believed that the procedures employed by the officers in conducting the stop were proper and not unconstitutionally excessive in light of clearly established law.

IV. The Municipal and County Defendants
In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court ruled that a municipality could incur § 1983 liability "only when a municipality, through the execution of its policies actually deprives an individual of his constitutional rights." In their complaint, plaintiffs raise various claims against the city of Rome, its mayor and chief of police (the latter two in both their individual and official capacities) and against those RPD police officers discussed above. Plaintiffs allege a constitutional rights deprivation policy existed in Rome that was implemented by the various defendants. Similar claims are asserted against Oneida County, the OCSD and several of its deputy sheriffs in their individual and official capacities.
A local government cannot be held liable under § 1983 "unless action pursuant to official policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691, 98 S.Ct. at 2036. The court, of course, already has found that the actions of the respective defendant officers and deputies did not violate plaintiffs' constitutional rights; naturally it follows that plaintiffs' Monell claims cannot have merit.

CONCLUSION
Based upon the foregoing, defendants' summary judgment motions are GRANTED and the complaint is dismissed.
IT IS SO ORDERED
NOTES
[1]  The caption incorrectly identifies two defendants: "Mary Wilson" should read "Mary Willson" and "Charles Schedarie" should read "Charles Scheiderich."
[2]  Although named as defendants, RPD officers Fred Rebinski and John Keyes were not present that evening and had no involvement with the stop of plaintiffs' truck.
[3]  Charles Scheiderich, named as a defendant in this suit, was off-duty on the night in question and was at his residence when the stop took place.
[4]  Although plaintiffs entered opposition to the Rome defendants' summary judgment motion, they did not oppose the Oneida defendants' dispositive motion. The information contained in plaintiffs' opposition papers is sufficient to address both motions, however, so the court will consider plaintiffs' papers sufficient to oppose both motions.


271 Cal.App.2d 29 (1969)
CALVIN RICK CARLSON, a Minor, etc., Plaintiff and Appellant,
v.
LEONARD ROSS et al., Defendants and Respondents.
Civ. No. 11715.
California Court of Appeals. Third Dist.
Mar. 24, 1969.
 Jordan N. Peckham for Plaintiff and Appellant.
 Rust & Hoffman and Ellis J. Horvitz for Defendants and Respondents.
 REGAN, J.
 Plaintiff appeals from a judgment after a jury verdict for defendants in this personal injury action.
 Plaintiff, a minor of the age of 12 years, was a social licensee on defendants' home premises after dark, and while playing a game of tag with defendants' children plaintiff fell over defendants' bulldog and severely injured his hand when it came in contact with a broken, rough and jagged pipe *30 which protruded "an inch of two" above ground level. The pipe had been broken by one defendant and left in this condition for several years. Plaintiff was unaware of the pipe's existence prior to the accident.
 The trial court gave the following instruction on the duty of care based on BAJI 212-B (Rev.).
 "When the licensee's presence on the premises of another is known to the licensor, or when the latter has good reason to expect, or in the exercise of ordinary care ought to know, of the presence of the licensee, the licensor is bound to exercise ordinary care to avoid injuring the licensee; except, however, that the owner of premises is under no duty to a licensee to alter or repair the premises as they existed when the licensee entered."
 "Take note also that everything I have said and may say on the duty of a licensor is subject to this overlying principle, that if and when a licensor actually learns that a licensee is in imminent danger of injury, and if, by exercising ordinary care, the licensor can minimize or thwart that danger, his duty is to apply such care to such a purpose."
 [1] Plaintiff contends that it was error to give this instruction, and urges that the true and correct rule is expressed by his proposed instruction based upon the Restatement of Torts (2d Rev.) section 342, page 210.  [fn. 1] That instruction, which was refused by the court, states:
 "A person who is in possession of land is legally liable for injuries to a social guest (in the absence of contributory negligence) if the injuries were caused by a dangerous condition on the land if the following conditions have been established by the evidence:"
 "First, that the possessor knows or has reason to know of the condition, and should realize that it involved an unreasonable risk of harm to such guest, and should expect that he will not discover or realize the danger; and"
 "Second, the possessor fails to exercise reasonable care, in either one of two ways, either by making the condition safe, *31 or by warning the guest of the condition and the risk involved; and"
 "Third, the guest did not know or have reason to know of the condition and the risk involved."
 Plaintiffs state the crux of the question to be as follows. The instruction given contains the clause:
 "... [T]he owner of the premises is under no duty to alter or repair the premises ...." (Italics added.)
 The proposed instruction, however, contains this clause:
 "... [T]he possessor fails to exercise reasonable care in either one of two ways, either by making the condition safe, or by warning the guest of the condition ...." (Italics added.)
 The law in California on the subject of a landowner's negligence as it existed in 1965 was outlined in our opinion in Hansen v. Richey (1965) 237 Cal.App.2d 475, 477-479 [46 Cal.Rptr. 909]. Therein we stated that the injured plaintiff was classified either as an invitee, licensee or trespasser on the premises, according to the circumstances of his presence; that as to a licensee, a landowner was not liable for a defective condition not amounting to a trap--if the landowner's conduct was passive. He was, however, liable for negligent active conduct. We pointed out that the California rule had been criticized and two newer tests suggested: (1) the landowner must exercise reasonable care under the circumstances toward anyone whose presence is known or reasonably to be expected, and (2) the rule of the Restatement which retains the traditional classifications stated but (regarding licensees) in section 342 sets forth the provisions recited above. (See fn. 1.)plaintiffs urge this court to adopt the rule of the Restatement and the views found in Harper and James (vol. 2,  27.8 to 27.11, pp. 1470-1478). Defendants, on the other hand, contend that the jury was properly instructed and that the instruction given substantially incorporates the legal principles embodied in section 342 of the Restatement.
 Reconsideration of our language in Hansen is unnecessary in view of the decision of the Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561], which in its examination of tort law liability for premises accidents, rejects previous holdings and adopts a rule primarily based upon section 1714 of the Civil Code, that is, whether the owner or occupant in the management of his property has acted as a reasonable man in view of the probability of injury to others, stating (at p. 118):
 "It bears repetition that the basic policy of this state set *32 forth by the Legislature in section 1714  [fn. [2]] of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. The factors which may in particular cases warrant departure from this fundamental principle do not warrant the wholesale immunities resulting from the common law classifications, and we are satisfied that continued adherence to the common law distinctions can only lead to injustice or, if we are to avoid injustice, further fictions with the resulting complexity and confusion. We decline to follow and perpetuate such rigid classification. The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determitive." (Italics added.)
 The instructions given in the instant case, which was tried before Rowland, reflect the common law approach that a licensor is under no duty to alter or repair the premises as they existed when the licensee entered. Rowland, however, abolishes these distinctions as between trespassers, licensees, and invitees and sets forth a new test. In the light of Rowland, the trial court erred in giving the instruction based on BAJI 212-B (licensees and licensors).  [fn. 3] On retrial the jury should be instructed according to the holding in Rowland v. Christian, supra, 69 Cal.2d 108.
 The order denying motion for new trial is not an appealable order. It is dismissed.
 The judgment is reversed.
 Pierce, P.J., and Bray, J.,  [fn. *] concurred.
 "A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,"
 "(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and"
 "(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and"
 "(c) the licensees do not know or have reason to know of the condition and the risk involved."
NOTES
[fn. 1]  1. This section reads:
[fn. [2]]  [2]. 1714. "Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself."
[fn. 3]  3. The Committee on BAJI has withdrawn its approval of Instruction 212-B (Revised), and adopted a new instruction based on the test set forth in Rowland. (See Supp. BAJI Instructions.)
[fn. *]  *. Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.


219 Cal.App.3d 1228 (1990)
269 Cal. Rptr. 26
DENNIS ELECTRIC, INC., Plaintiff and Appellant,
v.
UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant and Respondent.
Docket No. B044935.
Court of Appeals of California, Second District, Division Four.
April 26, 1990.
*1230 COUNSEL
Munns, Kofford, Hoffman, Hunt & Throckmorton and Michael J. Raymond for Plaintiff and Appellant.
Anderson, McPharlin & Conners, Neil A. Lavick and David P. Dapper for Defendant and Respondent.
OPINION
GEORGE, Acting P.J.
In Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456 [253 Cal. Rptr. 236, 763 P.2d 1326], the Supreme Court held that the statute of limitations governing an action on a mechanic's lien release bond does not apply where the surety is made a party defendant to a pending lien foreclosure action that was timely filed before the bond was recorded. In the present case, we hold that the statute of limitations also does not apply where, instead of naming the surety as a party defendant in a pending action, the lien claimant first obtains a final judgment in a lien foreclosure action that was filed before the bond was recorded and, thereafter, files a separate action against the surety to recover on the release bond. Accordingly, we reverse the trial court's orders sustaining the surety's demurrer to the lien claimant's second amended complaint without leave to amend and dismissing the action.

*1231 FACTS
Plaintiff Dennis Electric, Inc., the lien claimant on a mechanic's lien (Civ. Code, § 3109 et seq.),[1] filed an action against defendant United States Fidelity & Guaranty Company to recover on a release bond. (§ 3143.) Plaintiff's second amended complaint alleges the following.
Plaintiff, a licensed contractor, performed electrical work pursuant to written contracts and oral agreements with E&W Builders, Inc., for a total agreed price of $345,640.07. Plaintiff was paid $276,996.97, leaving an unpaid balance of $68,643.10.
On January 15, 1980, plaintiff filed a mechanic's lien on the property where the work had been performed and, the following day, commenced an action to foreclose that lien. On April 9, 1980, and June 17, 1981, defendant issued and recorded surety bonds to release the property subject to the mechanic's lien.[2] Plaintiff was not given notice that these bonds had been recorded, however, and remained unaware of their existence for several years.
On September 29, 1983, plaintiff obtained a judgment in its foreclosure action. On January 18, 1988, plaintiff learned of the existence of the release bonds and, on March 24, 1988, filed the present action to recover against those bonds.
Defendant filed a demurrer to plaintiff's second amended complaint on the ground the cause of action for recovery against the release bond was barred by the four-year statute of limitations set forth in Code of Civil Procedure section 337, subdivision 1. (1) (See fn. 3.) On July 12, 1989, the superior court sustained the demurrer without leave to amend and entered an order of dismissal.[3]

DISCUSSION
Pursuant to section 3144.5, which became effective January 1, 1984, the statute of limitations governing an action for recovery against a release *1232 bond is six months. The person who records a release bond is required to notify the lienholder of the bond, and the running of the statute of limitations is tolled until such notice is given. (§ 3144.5.)[4] The plaintiffs in Hutnick v. United States Fidelity & Guaranty Co., supra, 47 Cal.3d 456, recorded a mechanic's lien and filed an action to foreclose that lien. During the pendency of the foreclosure action, the owner of the subject property recorded a release bond and served notice on the plaintiffs as required by section 3144.5. More than six months later, plaintiffs filed an amended complaint in the foreclosure action naming the surety as a defendant and adding a cause of action on the lien release bond.
The surety demurred and obtained a judgment in its favor on the ground that suit on the release bond had not been brought within six months of the bond's recording as required by section 3144.5. The Supreme Court reversed, holding that because the lien foreclosure action had been timely filed before the release bond was recorded, the statute of limitations contained in section 3144.5 was inapplicable where the surety was made a party to that pending suit.
The decision in Hutnick did not address the situation involved in the present case, where an action to foreclose a mechanic's lien was timely filed before the release bond was recorded, a final judgment was obtained in that foreclosure action, and thereafter a separate action was filed to recover against the release bond. (2) Although "an opinion is not authority for a proposition not therein considered [citation]" (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal. Rptr. 377, 393 P.2d 689]), in order to resolve the issues involved in the present case we seek guidance from the reasoning employed in Hutnick.
(3) As noted in Hutnick, the mechanic's lien law derives from our state Constitution, which directs that "the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens." (Cal. Const., art. XIV, § 3.) Legislation adopted pursuant to this constitutional provision is remedial in nature and is "`to be liberally construed for the protection of laborers and materialmen.' [Citation.]" (Hutnick v. United States Fidelity & Guaranty Co., supra, 47 Cal.3d 456, 462.)
(4) (See fn. 5.) The court in Hutnick stated that "[t]he purpose of the release bond procedure is to provide a means by which, before a final *1233 determination of the lien claimant's rights and without prejudice to those rights, the property may be freed of the lien, so that it may be sold, developed, or used as security for a loan. [Fn. omitted.]" (47 Cal.3d at p. 462.)[5] The procedure thus benefits the owner of the subject property while protecting "the lien claimant by providing an alternate source of recovery on the claim of lien.... The recording of the release bond does not extinguish the lien; rather, the bond is substituted for the land as the object to which the lien attaches. [Citation.]" (Id., at p. 463.) The high court was careful to note, however, that "`it was not within the legislative purpose in permitting the substitution [of the bond for the subject property] to deteriorate the lienor's rights.' [Citations.]" (Ibid.)
(5a) The foregoing principles are fully applicable to the present case. Our decision, therefore, must give effect to the release bond procedure without deteriorating the lien claimant's rights.
The court in Hutnick considered the facts before it and noted that the plaintiffs had "pursued a single cause of action" in "seeking to enforce their mechanic's lien first against the liened property and subsequently against the release bond...." (47 Cal.3d at p. 463.) Because the plaintiffs had pursued only a single cause of action, they were required to satisfy only a single statute of limitations: "Once an action has been timely commenced by the filing of a complaint, the filing of a supplemental or amended complaint which does not introduce a new cause of action is not subject to the statute of limitations. [Citation.]" (Id., at p. 464.) The court concluded that the six-month statute of limitations governing an action to recover on a release bond (§ 3144.5) applies "only to an action `commenced' by the claimant after the bond's recording and not to an action, such as the one in this case, which was already pending at the time of the bond's recordation." (Ibid., italics in original.)
The Supreme Court did not, however, base its ruling entirely on the foregoing analysis of the provisions of section 3144.5. In addition, the court stated that "[a]t a more fundamental level," the argument that the statute of limitations applies "fails because it rests on the assumption that the recording of the release bond gives rise to a cause of action on the bond which is *1234 separate and distinct from the cause of action to foreclose the claim of lien.... [T]his assumption is incorrect." (47 Cal.3d at p. 464.)
(6) The present case differs from Hutnick in two important respects: (1) plaintiff in the present case filed a separate action against the surety rather than include the surety in a pending foreclosure action, and (2) the release bond in the present case was recorded prior to the effective date of section 3144.5. Nevertheless, the reasoning employed in Hutnick is fully applicable to the present case.
As noted above, the "fundamental" basis for the holding in Hutnick is that the recording of a release bond does not give rise to a cause of action which is separate and distinct from the cause of action to foreclose the claim of lien. Instead, the recording of a release bond simply substitutes the bond for the land as the object to which the mechanic's lien attaches. Where the release bond is recorded after commencement of a foreclosure action against the property subject to the mechanic's lien, as occurred both in Hutnick and the present case, no new cause of action is created and no additional statute of limitations need be satisfied in order to seek recovery against the bond.
(5b) It is unimportant that the release bond in the present case was recorded prior to the effective date of section 3144.5. As noted above, the holding in Hutnick is based only in part on the provisions of section 3144.5. The more "fundamental" basis for the holding is that no statute of limitations need be satisfied because no new cause of action arose. This is true whether the limitations period in question is found in section 3144.5 or some other statute. We need not, and therefore do not, decide whether the provisions of section 3144.5 apply to release bonds recorded prior to the effective date of the statute.
Similarly, the conclusion reached in Hutnick that the Legislature, in enacting section 3144.5, did not intend "to require a plaintiff seeking recovery on a single cause of action to comply with two limitations periods  one at the filing of the action and another to respond to subsequent self-protective steps taken by defendants or their successors-in-interest," applies with even greater force to the present case. Prior to the enactment of section 3144.5, no statute expressly established a special limitations period for an action to recover against a release bond. It is unclear, in fact, which limitations period applied. (47 Cal.3d at pp. 464-465; see also Winick Corp. v. General Ins. Co. (1986) 187 Cal. App.3d 142, 145-148 [231 Cal. Rptr. 606].) It is highly unlikely, therefore, that prior to the enactment of section 3144.5, the Legislature intended to require a lienholder who commenced a mechanic's *1235 lien foreclosure action before the recording of a release bond to comply with a second statute of limitations in order to recover against the bond.
Also fully applicable to the present case is the Supreme Court's observation that a construction which would require a lienholder to comply with two statutes of limitations under these circumstances "would `deteriorate the lienor's rights' [citation] and thus raise serious constitutional questions under the provision quoted above, authorizing the Legislature to provide for the `speedy and efficient enforcement of [mechanic's] liens.' It is a familiar rule of construction that statutes should be interpreted in a manner which avoids constitutional difficulties. [Citation.]" (Hutnick v. United States Fidelity & Guaranty Co., supra, 47 Cal.3d 456, 466.)
In further support of its holding, the court in Hutnick noted the general rule that "the statute of limitations provides no defense to the successor of a party timely sued." (47 Cal.3d at p. 467.) Although acknowledging that the case before the court did not "involve a direct substitution of parties," the court concluded the situation was "similar in that the release bond has been substituted in place of the liened property after the cause of action accrued ..." (Ibid.)
It is significant that as authority for the rule that "the statute of limitations provides no defense to the successor of a party timely sued," the Supreme Court cited both Code of Civil Procedure section 385, which governs the substitution of the successor in interest of a party into a pending action, and Code of Civil Procedure section 1908, which states that a judgment is conclusive as to the successor in interest of a party and authorizes the filing of "a separate action" to determine the effect of a previously obtained judgment.[6] Just as the situation in Hutnick resembles a direct substitution of parties under Code of Civil Procedure section 385 in a pending action, the situation in the present case is similar to the filing of a separate action under Code of Civil Procedure section 1908 to enforce a previously obtained judgment against the successor in interest to a party. In both situations the plaintiff is pursuing a single cause of action. Although a separate action must be filed if the judgment has become final, this is a procedural difference, not a substantive one. Borrowing a term from the opinion in Hutnick, the filing of a separate action to recover against a release bond after a judgment is obtained in a mechanic's lien foreclosure *1236 action does not involve a new cause of action but merely a "sequel" to the foreclosure action. (47 Cal.3d at p. 466, fn. 8.)
As a final point, the court in Hutnick considered the contention that if the statute of limitations did not apply, the plaintiff "`could wait years after receiving notice of recording of the bond before bringing the surety into the action'...." (47 Cal.3d at pp. 469-470.) The court dismissed this concern, noting "the filing of an amended or supplemental complaint adding new parties requires leave of the court (Code Civ. Proc., §§ 464, 473) and leave could be denied, in the court's discretion, if the plaintiff unreasonably delayed. [Citations.]" (47 Cal.3d at p. 470.) The court further observed that a "foreclosure action not brought to trial within two years after its commencement is subject to dismissal, in the court's discretion, for want of prosecution. (§ 3147.)" (Ibid.)
The contention that application of the statute of limitations is necessary to prevent delay on the part of the lien claimant in seeking recovery against the bond carries more weight in the present case. The provisions relied upon in Hutnick to curb such delay are inapplicable where, as here, a separate action is filed after judgment is obtained in a foreclosure action. The justifiable concern that unreasonable delay could result is insufficient, however, to alter our conclusion that the statute of limitations is inapplicable under the circumstances here present. The possibility of abuse by lien claimants does not impair the foregoing analysis, which demonstrates that no new cause of action has arisen and therefore no additional statute of limitations need be satisfied.
Furthermore, the lien claimant in the present case did not engage in unreasonable delay. The complaint alleges the surety did not notify the lien claimant of the recording of the bond. Upon learning of the bond's existence, the lien claimant filed the present action in a timely fashion. We therefore leave to another day the consideration of whether a different result would obtain had the lien claimant unreasonably delayed in seeking recovery against the release bond.
Defendant's reliance on the decision in Winick Corp. v. General Ins. Co., supra, 187 Cal. App.3d 142, is misplaced. Winick held that a complaint against a surety on a stop notice release bond was barred by the statute of limitations. In that case, however, the release bond was obtained before the plaintiff commenced suit. The issue discussed in both Hutnick and the present case, therefore, was not considered in Winick. Instead, Winick discussed the question when a cause of action accrued under a stop notice release bond. In the present case, as in Hutnick, the issue of when the cause *1237 of action accrues does not arise because the statute of limitations does not apply.
For the same reason, the discussions by both parties in the present case as to whether the lien claimant's lack of knowledge of the release bond tolls the running of the statute of limitations is beside the point. Any such tolling of the limitations period is irrelevant because the statute of limitations is inapplicable.

DISPOSITION
The order (judgment) of dismissal is reversed. Plaintiff shall recover its costs on appeal.
Goertzen, J., and Todd, J.,[*] concurred.
Respondent's petition for review by the Supreme Court was denied July 11, 1990.
NOTES
[1]  All further statutory references are to the Civil Code unless otherwise noted.
[2]  Section 3143 provides, in pertinent part: "If the owner of property ... sought to be charged with a claim of lien ... disputes the correctness or validity of any claim of lien, he may record in the office of the county recorder in which such claim of lien was recorded, either before or after the commencement of an action to enforce such claim of lien, a bond ... in a penal sum equal to 1 1/2 times the amount of the claim.... Upon the recording of such bond the real property described in such bond is released from the lien and from any action brought to foreclose such lien."
[3]  Such an order of dismissal is appealable. (Beazell v. Schrader (1963) 59 Cal.2d 577, 579-580 [30 Cal. Rptr. 534, 381 P.2d 390].)
[4]  Section 3144.5 provides: "Any person who obtains a lien release bond which is recorded pursuant to Section 3143 shall give notice of the recording to the lienholder by mailing a copy of the bond to the lienholder.... Failure to give the notice provided by this section shall not affect the validity of the lien release bond, but the statute of limitations on any action on the bond shall be tolled until the notice is given. Any action on the lien release bond shall be commenced by the claimant within six months of the recording of the lien release bond."
[5]  As the court in Frank Curran Lbr. Co. v. Eleven Co. (1969) 271 Cal. App.2d 175, 183-184 [76 Cal. Rptr. 753], noted: "[T]he lien, unless provision is made for its earlier release or cancellation by appropriate means, could constitute a substantial interference with the owner's right to dispose of his property for a period of several years.... [T]he Legislature is empowered, in balancing the interests of the lien claimant and the property owner, to adopt legislation which will relieve the property owner of the burden of the lien and at the same time afford the lien claimant reasonable assurance that his claim, if valid, will be paid in full."
[6]  Code of Civil Procedure section 1908, subdivision (b), states in pertinent part: "At any time prior to a final judgment,... a determination of whether the judgment ... is to be binding upon a nonparty ... may, on the noticed motion of any party or any nonparty that may be affected by this subdivision, be made in the court in which the action was tried or in which the action is pending on appeal. If no such motion is made before the judgment becomes final, the determination may be made in a separate action. ..." (Italics added.)
[*]   Assigned by the Chairperson of the Judicial Council.