Opinion
For Opinion on Hearing, see 98 Cal.Rptr. 811, 491 P.2d 395.
Hearing Granted Sept. 8, 1971.
Opinions on pages 667 to 681 omitted
HEARINGS GRANTED [*]
[96 Cal.Rptr. 507]John D. Maharg, County Counsel, Michael H. Dougherty, Deputy County Counsel, for appellants.
Joel S. Aaronson, Philip L. Goar, San Fernando Valley Neighborhood Legal Services, Inc., Pacoima, for respondents.
ROTH, Presiding Justice.
Respondents as taxpayers (Section 526a Code of Civil Procedure) , seeking to enjoin the expenditure of public funds for the enforcement of a statute in a manner which unreasonably discriminated between judgment debtors in respect of exemption rights to debtor-tenants, filed an action for injunctive and declaratory relief against Leslie R. Keays, Marshal of the County of Los Angeles; Peter J. Pitchess, Sheriff of Los Angeles County; and Lockhart Gale, Constable of the Malibu Justice Court (collectively referred to as appellants) in their official capacity as representatives of a class. To obtain the relief they seek respondents request the court to hold that section 1174 as amended in 1968 is limited by the exemption provisions of sections 690 through 690.50 or, if it is not so limited, that it is unconstitutional because it is '* * * in violation of the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 21 of the California Constitution.'
Blair v. Pitchess, Cal., 96 Cal.Rptr. 42, 486 P.2d 1242, filed July 1, 1971, establishes respondents' right to sue. We view the judgment at bench as one against Keays, Pitchess, Gale and their officers, agents, employees, representatives and other persons acting in concert with them, only.
All Code section references herein made are to the Code of Civil Procedure unless otherwise noted.
As amended section 1174 (amended 1174) provides in relevant part: 'A plaintiff, having obtained a writ of restitution of the premises pursuant to an action for unlawful detainer, shall be entitled to have the premises restored to him by officers charged with the enforcement of such writs. Promptly upon payment of reasonable costs of service, the enforcing officer shall server or post a copy of the writ in the same manner as upon levy of writ of attachment pursuant to subdivision 1 of Section 542 of this code. In addition, where the copy is posted on the property, another copy of the writ shall thereafter be mailed to the defendant at his business or [96 Cal.Rptr. 508] residence address last known to the plaintiff or his attorney or, if no such address is known, at the premises. If the tenant does not vacate the premises within five days from the date of service, or, if the copy of the writ is posted, within five days from the date of mailing of the additional notice, the enforcing officer shall remove the tenant from the premises and place the plaintiff in possession thereof. It shall be the duty of the party delivering the writ to the officer for execution to furnish the information required by the officer to comply with this section.
The last three amendments of section 1174 took place in 1968, 1969 and 1970. In substantive terms, and for the purposes of this appeal, the 1968 amendment was critical and the subsequent amendments wrought no basic changes. Since we should address ourselves to the issues at bench in terms of the law as it now stands, we set forth portions of the presently effective section 1174. However, our analysis and conclusion would not differ if the appeal would have to be decided in terms of the 1968 amendment.
'All goods, chattels or personal property of the tenant remaining on the premises at the time of its restitution to the plaintiff shall be stored by the plaintiff in a place of safekeeping for a period of 30 days and may be redeemed by the tenant upon payment of reasonable costs incurred by the plaintiff in providing such storage and the judgment rendered in favor of plaintiff, including costs. Plaintiff may, if he so elects, store such goods, chattels or personal property of the tenant on the premises, and the costs of storage in such case shall be the fair rental value of the premises for the term of storage. An inventory shall be made of all goods, chattels or personal property left on the premises prior to its removal and storage or storage on the premises. Such inventory shall either be made by the enforcing officer or shall be verified in writing by him. The enforcing officer shall be entitled to his costs in preparing or verifying such inventory.
'In the event the property so held is not removed within 30 days, such property shall be deemed abandoned and may be sold at a public sale by competitive bidding, to be held at the place where the property is stored, after notice of the time and place of such sale has been given at least five days before the date of such sale by publication once in a newspaper of general circulation published in the county in which the sale is to be held. Notice of the public sale may not be given more than five days prior to the expiration of the 30 days during which the property is to be held in storage. All money realized from the sale of such personal property shall be sued to pay the costs of the plaintiff in storing and selling such property, and any balance thereof shall be applied in payment of plaintiff's judgment, including costs. Any remaining balance shall be returned to the defendant.'
Appellants, when they enforce a writ of execution under amended 1174 with instructions only to reclaim the premises, refuse to and do not accept claims for exemptions from evicted tenant-debtors. They contend that they execute merely on the premises, not upon tenant's personal property. Appellants assert that the unremoved personal property is not taken in possession by them; (Section 542; Dutertre v. Driard et al, 7 Cal. 549), that it is only inventoried or that they merely verify an inventory made by the landlord concurrently with delivery of the personalty to the landlord. They claim that they make no levy within the meaning of section 542 or Driard and that the procedure afforded to debtors, generally by section 690.50 to file claims for exemption to property levied upon by writ of attachment or execution does not apply to tenant-debtors evicted under amended 1174.
The question thus presented is whether tenant-debtors evicted by valid judgment for restitution of rented premises who do not remove their personal property within the five-day period allowed in amended 1174 prior to the execution of the judgment lose exemption rights under 690 et seq. to their unremoved personal property when such personal property is delivered to the landlord, together with the premises.
Amended 1174 had been previously amended in 1967. Pursuant to the 1967 amendment, the levying officer stored the unremoved personal property and claims for exemption by an evicted tenant-debtor were accepted by the levying officer. Under the 1967 statute there was considerable [96 Cal.Rptr. 509] doubt as to who paid fees incurred for the storage of the property and other costs.
Thus, in Dobner v. Borrini, 4 Cal.App.3d Supp. p. 1, 84 Cal.Rptr. 110, the court in speaking of the 1967 Amendment, says at page 4, 84 Cal.Rptr. at page 111:
'But, in 1968, the Legislature again amended section 1174. Doubt had been expressed as to the constitutionality of the requirement that the county store the property on the ground that such provision constituted a gift of public funds in contravention of article XIII section 25 (formerly art. IV § 31). At least one county counsel had advised levying officers in his county not to store property under section 1174 for this reason.'
Prior to 1967 the levying officer was under an affirmative duty not only to remove the defaulting tenant from the premises but his personal property as well. (Conniff v. Superior Court, 90 Cal.App. 169, 175, 265 P. 555.) If a landlord by his judgment recovered only the premises the levying officer '* * * put the property out on the street or sidewalk.' (Dobner v. Borrini, supra, 4 Cal.App.3d Supp. pp. 1, 3, 84 Cal.Rptr. p. 110.) If the levying officer did not perform his ministerial duty and remove the personal property of the tenant, he could be held liable in an action for damages. (Werner v. Sargeant, 121 Cal.App.2d 833, 264 P.2d 217; Lester v. Isaac, 63 Cal.App.2d Supp. 851, 146 P.2d 524.)
Section 690.50 provides in relevant part: 'If the property mentioned in Sections 690.1 to 690.29, inclusive, shall be levied upon under writ of attachment or execution, the defendant or judgment debtor * * * in order to avail himself of his exemption rights as to such property, shall * * * deliver to the levying officer an affidavit of himself or his agent, together with a copy thereof, alleging that the property levied upon, * * * is exempt, specifying the section or sections of this code on which he relies for his claim to exemption. * * *.' (Emphasis added.)
Section 542 provides for levy of writs of attachment and execution.
No legislative history of amended 1174 has been cited to us which indicated any intent on the part of the Legislature to deprive an evicted tenant-debtor of exemption rights he has always enjoyed. Nothing in amended 1174 explicitly indicates that the procedure therein provided for the stored unremoved property of an evicted tenant-debtor was intended to deprive the debtor-tenant of any claims he might properly made to exempt property.
Appellants flatly take the position that a distinction is made between evicted tenant-debtors and other judgment debtors; that such distinction was intended by the Legislature in the enactment of amended 1174; that it is a reasonable and proper distinction and they accordingly have refused to accept any claims of exemptions from evicted tenant-debtors. The only justification for such discrimination suggested by appellants is that the unlawful detainer procedure is a special remedy and for that reason public policy and the economics of the situation require special legislation and justify the discrimination. No explanation, however, is offered by appellants why the discrimination against evicted tenant-debtors has been so long delayed. Section 1174 was enacted in 1872 and no such discrimination has been remotely suggested although it had been amended a number of times prior to the 1968 amendment and has been amended twice since 1968.
To support their position, appellants argue, as already pointed out, that under amended 1174 they do not levy in the sense required by the attachment and execution statute, section 542, and therefore, they cannot accept claims pursuant to section 690.50.
We think, however, amended 1174 does implicitly require a levy and that it must be read in conjunction with 542, which section defines how a levy is made, and with 690.50(a) which sets forth the [96 Cal.Rptr. 510] procedure for the filing of claims for exemption by any debtor.
Procedure for eviction of a tenant in an unlawful detainer action is governed by section 1174, originally enacted in 1872. With minor changes it has always been substantially the same. After a landlord has served a three-day notice to pay rent or quit, filed and served the complaint in unlawful detainer, tried the case before a court or jury and obtained a judgment, the landlord obtains a writ of restitution which the landlord delivers to the officers charged with enforcement of such writs (sheriff, marshall or constable). The officer serves the writ on the tenant. If the tenant does not vacate the premises within five (5) days from the service of said writ, the enforcing officer physically removes him from the premises.
The same writ of execution which requires the levying officer to deliver premises to the landlord, requires the same officer to deliver inventoried unremoved personal property of the evicted tenant-debtor to the landlord. It is clear that the officer could make no inventory without exercising dominion and control over the personalty, without, in a word, taking possession thereof. (See Nathan v. Dierssen, 146 Cal. 63, 66, 79 P. 739.) He could not deliver possession of tenant's personal property without acquiring possession.
Possession as test of making a levy was laid down in the early case of Dutertre v. Driard, 7 Cal. 549, wherein Terry, J. at page 551 says in a very brief opinion:
The landlord could not in any other manner obtain the requisite possession of the unremoved personal property of the tenant for storage or for any other purpose.
To levy means to collect. (Webster's 7th College Dictionary, p. 45, Co. 2 (1969.) 'Execution' as defined in this State means 'carrying into effect by such means as are provided by law for the enforcement of various classes of judgments' (Bank of America v. Katz, 45 Cal.App.2d 138, 141, 113 P.2d 759, 760; Saunders v. Simms, 183 Cal. 167, 190 P. 806; Lehnhardt v. Jennings, 119 Cal. 192, 48 P. 56, 51 P. 195; Southern Cal. Lumber Co. v. Ocean Beach Hotel Co., 94 Cal. 217, 29 P. 627; Painter v. Berglund, 31 Cal.App.2d 63, 87 p.2d 360.)
The execution on the unremoved personal property is consummated with delivery to the landlord of the premises with the unremoved personal property irrespective of whether the levying officer has made the inventory enjoined by amended 1174 before [96 Cal.Rptr. 511] delivery--or verifies an inventory made by landlord after delivery.
It seems clear to us that, contrary to appellants' claim, an execution consummated under amended 1174 does include a taking into their possession of the premises to be restored and all unremoved personal property. When amended 1174 is read, together with 542 (3 and 4) it is clear that the Legislature, seeking to avoid the defects of 1174 as it was amended in 1967, did in effect make appellants the levying officer on both the premises and on unremoved personal property and appoint landlord as a statutory keeper. Thus, although the levying officer generally appoints and for obvious reasons should have the right to select a keeper, the Legislature because of the special and exigent circumstances attending an eviction and to eliminate time and detail to provide for the accruing costs which flow from an execution on premises, has, by amended 1174, designated the landlord as the keeper which the levying officer would normally select under 542 (3 and 4). Pragmatically, this means that appellants are the levying officers and as such they are in a position to and must accept claims for a period of 30 days for exemption from an evicted tenant-debtor (690 et seq.) and for that matter, any other third party claims which [96 Cal.Rptr. 512] may be filed to the unremoved personal property.
In Gray v. Whitmore, 17 Cal.App.3d 1, 94 Cal.Rptr. 904, hear. den., Molinari, thorough and learned analysis of amended 1174, comes to an opposite conclusion. He says at page 19, 94 Cal.Rptr. at page 913:
In Gray v. Whitmore, 17 Cal.App.3d 1, 94 Cal.Rptr. 904, her. den., Molinari, P.J. differs with the above interpretation and says at page 15, 94 Cal.Rptr. at page 911:
We find no constitutional reason why the Legislature cannot determine when personal property in certain special circumstances may not be deemed to be abandoned. (Estate of Costa, 109 Cal.App.2d 735, 739, 740, 241 P.2d 621; section 1500 et seq.)
And, if abandoned, the Legislature may surely provide that such abandoned property may be sold at public sale and the proceeds disbursed as provided in amended 1174. In our opinion, however, when the applicable statutes mentioned are construed together, the sale, after abandonment, is made by the levying officer.
We find no justification for the distinction in economics specifically, or in public policy generally, to construe amended 1174 in such a manner as to eliminate the rights of an evicted judgment debtor to claim exemptions under section 690 et seq. To so construe it would be arbitrary, unreasonable and an unjustified discrimination against evicted judgment debtors. As pointed out, Molinari, P. J., in the Gray case, holds that amended 1174 makes landlord an involuntary bailee. The Gray opinion, however, with strictures on landlord's rights and limitations of reasonableness as to charges which can be made by landlord as bailee, agrees that if an evicted tenant-debtor were subjected to all the provisions of amended 1174 as literally written that the section would be unconstitutional--at least in part. Thus, Molinari, P. J., says in Gray, 17 Cal.App.3d 1 at page 22, 94 Cal.Rptr. at page 916: 'Adverting to the case before us in the light of the foregoing constitutional principles as applied to the challenged portions of section 1174, we deem it appropriate to observe that there are two aspects to that part of the statute under attack. One deals with the storage of the property and the payment of reasonable costs incurred for such storage and the sale of the property for storage costs if not redeemed; the other deals with the requirement that the money judgment rendered in favor of the plaintiff in the unlawful detainer action be satisfied when the property is redeemed or, if not redeemed, for application of the proceeds from the sale of the property to said judgment after the payment of the storage and sale costs. We conclude, with respect to the first aspect, that the statute does not offend the due process or the equal protection clauses of the Fourteenth Amendment; but we do hold that the provisions dealing with the second aspect are repugnant to these clauses and are, therefore, unconstitutional.'
Thus, while respondents raise a host of wide-ranging questions with constitutional overtones, the narrow question before us is whether the appellants were levying officers and, if they were such, whether they properly refused to accept the claims of exemption which were attempted to be filed by the three evicted judgment debtors set forth in respondents' complaint.
We think amended sections 1174, 690 et seq. and 542 can be read and were intended by the Legislature to be read together. Read together as they have been herein, the statute is constitutional and appellants are bound to accept claims for exemption from evicted tenant-debtors. We do not pass upon any other provisions of amended 1174.
The judgment is affirmed and remanded the trial court to be modified in conformity with this opinion.
FLEMING, J., concurs.
[*] See 6 Cal.3d 411 for Supreme Court opinion superseding opinion that appeared at pages 667 to 676.
'Under our statutes, a levy on personal property capable of manual delivery must be made, by taking the property into custody. If the execution-creditor permits property levied on to remain in the hands of the debtor, his levy cannot operate to defeat subsequent executions.
'The property in question was allowed to remain with defendant in execution for more than three months after the levy; to permit such a course would open the door to fraud.'
The test of Driard is followed in Conniff v. Superior Court, supra, wherein the court says at page 175, 265 P. at page 557:
'In their answer to the petition the respondents pleaded that the writ of restitution had not been executed because the sheriff had failed to remove the personal property of the lessees from the premises, and this fact was conceded by petitioners. That a writ of restitution is not fully executed unless the defendant and his personal property are removed from the premises is settled law. Lee Chuck v. Quan Wo Chong Co., 81 Cal. 222, 229, 22 P. 594 [citation]; 36 C.J. 671.'
In Lee Chuck, the case relied on by Conniff, the court makes clear that possession of premises cannot be given unless personal property is moved from the premises. At page 229, 22 P. at page 596, the court says:
'It only remains to consider whether the writ was fully executed at the time the stay took effect. We think it was not. In order to constitute a full execution of the writ, the defendant and its property must have been removed from the premises, and the possession of the real estate given to the plaintiff, unless the removal of the personal property was in some way waived by the defendant. Crocker, Sher., § 554; Freem. Ex'ns, § 474; Smith v. White, 5 Dana [Ky.] 376; Witbeck v. Van Rensselaer, 64 N.Y. 27.'
'We hold, moreover, that it may not be contended that there has been a delivery of the subject property by the enforcing officer to the plaintiff landlord and that such a delivery constituted a levy upon the property so as to involve the exemption statutes. As we perceive the provisions of section 1174, the enforcing officer does not take possession of the defendant tenant's property pursuant to the writ of restitution, nor does he take possession of such property for the purpose of delivering it to the plaintiff landlord. The enforcing officer's only involvement with the property is the duty imposed upon him to make an inventory thereof or to verify the inventory if it is made by someone else. The enforcing officer performs this function as a neutral party designated by statute to assure a proper and accurate inventory of the property. The delivery of the property from the defendant tenant to the plaintiff landlord for purposes of storage is effected by operation of law when the tenant permits his property to remain on the premises at the time of their restitution to the landlord.'
'The 1968 amendment with which we are here concerned shifted the duty of storing the tenant's property to the plaintiff landlord and provides that the reasonable costs of storage incurred by the landlord are to be reimbursed to him either by the tenant, if the property is redeemed by him, or out of the proceeds realized upon a public sale of the property if it is not redeemed by the tenant as prescribed in the statute. As in the case of the 1967 amendment the present statute provides that in order to redeem the property the tenant must pay the judgment rendered in favor of the plaintiff, including costs, and provides that upon the public sale of the property in the event the property is not redeemed the proceeds, after application of the costs of sale and the storage costs, are to be applied to the judgment including costs. Any remaining balance is to be paid by the plaintiff to the tenant defendant. [Footnote omitted].
'* * *.'
On page 16, 94 Cal.Rptr. on page 911 he says the following: '* * * we interpret the subject provisions to mean that, at the time possession of the premises is restored to the plaintiff and an inventory of the tenant's property remaining on the premises is made or verified by the enforcing officer, a deposit for purposes of storage is created by the terms of the statute and the landlord becomes a depositary for the safekeeping of the property for the benefit of the tenant. (Cf. Civ.Code, §§ 1813, 1814, 1815, 1844, 1845.) When the plaintiff is placed in such possession and the inventory is taken, the responsibilities and duties of the enforcing officer cease and terminate.'