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District Court of Appeal, Second District, Division 3, California.


Civ. 15031.

Decided: April 29, 1946

Kaplan & Livingston, of Los Angeles, Alfred L. Armstrong, of Hollywood, and Harold D. Berkowitz, of Los Angeles, for appellants. Richard A. Haley and Ernest A. Oswald, both of Los Angeles, for respondents.

Defendants Helene Kroenert and Claude W. Chapman appeal from a judgment rendered in favor of plaintiff in the sum of $2,900.

On January 27, 1941, Marcus Zaslow was in possession of the real estate described as Lot 245, Block 4, Golden Bay Tract in the county of Los Angeles. There is a building upon this lot numbered 411 Ocean Front Walk, Venice. On the date mentioned Mr. Zaslow entered into an agreement with the State of California by which he leased the property from the State at a monthly rental of $8.00. The instrument provided that if the property should be sold by the State while the lease was in effect the State was authorized to cancel it as of the ‘date of sale by the State’ and the lessee in that event would be entitled only to a refund of any unearned portion of rental which might have been paid in advance. The lease also provided that the lessee was not to ‘let or underlet’ the premises without the consent of the lessor.

On November 19, 1943, defendant Helene Kroenert bought the premises from the State of California at a public auction tax sale for $4,700, overbidding the plaintiff's offer of $4,600. On December 10, 1943, the State notified the plaintiff that the lease was cancelled as of November 19, 1943, the date of sale. The notice contained the advice that ‘Arrangements for rental of the property, for the period subsequent to said date of sale, should be made with the successor in interest to the State.’ Enclosed with the notice was an application for refund of unearned rental.

Although the plaintiff was present when Mrs. Kroenert was awarded the property upon her bid, the record does not indicate that he ever made any arrangements with her as successor in interest to the State or otherwise to continue as the tenant of the property. On the contrary, he ignored any right that she might have had in the premises as the purchaser thereof and continued to receive rentals under a sublease which he had made with a Mrs. Dobis on October 7, 1943. The building was furnished and while at first Mrs. Dobis paid rent to plaintiff, it appears that her sister, Mrs. Bronson, who moved in with her family shortly thereafter, began to pay rentals in the month of January, 1944. Checks were introduced in evidence which showed that on January 4th and again on February 7, 1944, she wrote checks in favor of Marcus Zaslow in the sum of $25 and in favor of Marilyn Zaslow in the sum of $30. Mrs. Bronson testified that her rent was paid up to May 21, 1944.

On January 26, 1944, Helene Kroenert filed an action to quiet title to the property, naming various defendants, including Mrs. Bronson, Henry F. Zaslow and his wife, Marilyn. Marcus Zaslow filed an answer in that action as attorney in fact for his son, Henry, and on May 31, 1944, judgment was rendered against Mrs. Kroenert on the theory that the tax deed from the State was void because of an over-assessment of taxes by the Board of Supervisors for the years 1927 to and including 1931. That judgment we have reversed this day upon Mrs. Kroenert's appeal in action No. 15079, 168 P.2d 779.

While the quiet title action was pending, Mrs. Bronson, at the behest of the plaintiff who was contemplating going into possession again, endeavored to find another apartment. In that effort, she and her husband approached defendant Chapman, who was the owner of apartment house property. While she was waiting to learn of a vacant apartment, plaintiff, according to the testimony, told his subtenants that he needed the place and would move in if they could give him a place to sleep; that on or about May 10, 1944, they did so; that he slept there the next four nights but left in the morning to go to his business. On May 15th, 1944, the Bronsons were notified by defendant Chapman that one of his tenants had suddenly moved out and that they could have immediate possession of a furnished apartment. Although their rental was paid up to May 21st, the Bronsons within two hours after such notification vacated the premises, leaving the doors open and unlocked. Mrs. Bronson testified that when she returned to ‘clean the place’ she found ‘notices tacked on the door.’ Defendant Chapman, acting as agent for his mother-in-law, Mrs. Kronert, immediately upon the Bronsons moving out, peaceably entered the premises, took possession, posted ‘no trespassing’ signs and changed locks on the doors.

Plaintiff testified that when he came home that night to sleep he found that the doors were padlocked with ‘signs on each side not to trespass'; that a few days later, and on May 17th, he went back to look over the premises with his attorney and found defendant Chapman there; that he noticed the lock on the hamburger stand had been changed and asked Chapman how he did it, and he answered, “With a hammer. I knocked it off and put mine on”; that ‘No other conversation took place at all. We looked at the signs. That is all. Signs, no trespassing. I think Mr. Chapman says: ‘Don't you dare to come close. You will find your head knocked off.’' (Emphasis ours.) He testified that he thought Chapman had a sledge hammer in his possession at that time.

On May 19, 1944, defendant Kroenert's attorney sent the plaintiff the following letter:

‘Mr. M. L. Zaslow,

‘325 North Oakhurst,

‘Beverly Hills, California.

‘Dear Sir:

‘My client, Mrs. Helene Kroenert, has taken possession of the premises at, 411 Ocean Front, Venice, under claim of title by the virtue of a deed to her from the state of California.

‘On the premises above named are certain pieces of personal property which I understand belong to you. I wish to inform you at this time that you may have possession of this property by applying to me at this office.

‘If you do not call for these goods within ten days, my client will have them put in storage to be held for you at your expense.’

The personal property was then placed in Chapman's basement, where it still remained at the time of trial.

The record indicates that plaintiff had paid no rental upon the premises to the State or to any individual after receiving notice from the State of the termination of his lease.

On June 8, 1944, plaintiff filed a complaint in four counts, entitled ‘Complaint (Trespass, Ejectment, Forcible Entry and Conversion).’ At the commencement of the trial, the court, upon motion of plaintiff's counsel, dismissed the first and third causes of action, leaving the second and fourth causes for trial, plaintiff's counsel stating that ‘the dismissal is as to the causes of action for ejectment and forcible entry, leaving the causes of action for trespass and conversion.’ The second cause of action incorporated the charging allegations of the first cause of action, which were substantially as follows: That plaintiff had enjoyed the quiet and peaceable possession of the premises ‘from sometime in the year 1935 to and including May 15, 1944’; that on the date mentioned the defendants forcibly broke into and entered the premises and posted a ‘No Trespassing’ sign thereon, removed the locks and replaced them with others ‘to the end that plaintiff was unable to enter therein or to keep and maintain his quiet and peaceable possession thereof’; that the county of Los Angeles since July 1, 1943, was and is an ‘acute housing area’ and he had been unable to obtain adequate housing facilities for himself and family and was compelled to impose upon friends and relatives for the same; that the condition named is likely to endure for a considerable time, all to his great and irreparable damage. This cause then mentions the filing and hearing of Mrs. Kroenert's quiet title action and alleges that the acts complained of took place while that action was under submission and before judgment. The second cause further alleged that on or about May 15, 1944, ‘the defendants, and each of them forcibly broke and entered the premises * * * without the consent, express or implied, of the plaintiff and have continued to use and occupy the same continually thereafter to the damage of the plaintiff in the sum of Nine Thousand Dollars ($9,000.00).’ The fourth cause of action charged that the defendants ‘unlawfully and without right or color of right took and carried away said property [personal property and effects of plaintiff] from said premises and converted and disposed of the same to their own use to the damage of the plaintiff in the sum of Three Thousand Five Hundred Dollars ($3,500.00).’ Plaintiff prayed that he might be restored to possession of the premises and for judgment in the amount of $100 per month from May 15, 1944, to date of entry of the judgment; also, for judgment in the amount of $14,500, as well as punitive damages in the sum of $5,000.

The court made no order that plaintiff be restored to possession of the realty or furniture but found that substantially all of plaintiff's allegations which were incorporated in the second cause of action were true, including the allegation that the plaintiff had enjoyed the quiet and peaceable possession of the premises from ‘sometime in the year 1935 to and including May 15, 1944.’ Also, ‘That on or about May 15, 1944, defendants Helene Kroenert and Claude Chapman forcibly broke and entered the premises in the Complaint described without the consent, express or implied, of the plaintiff and have since that date continued to use and occupy the same to the damage of the plaintiff in the amount of One Thousand Four Hundred Dollars ($1,400.00).’ Another finding was that the defendants without consent of plaintiff took and carried away all his personal property and effects, which were located on the premises, to his damage in the sum of $1,200. The court also found ‘That the breaking and entering of the premises in the Complaint described by the defendants, Helene Kroenert and Claude Chapman, and the taking and carrying away of the personal property and effects of the plaintiff was done wantonly and maliciously and with a reckless disregard of the rights and privileges of the plaintiff and by reason thereof, plaintiff is entitled to punitive damages in the amount of Three Hundred Dollars ($300.00).’

This last finding causes us to consider what, if any, were ‘the rights and privileges' of this plaintiff. We have concluded that he had no rights or privileges whatever that could be invoked successfully against the appellants since he was not the party in actual possession. ‘It is a well-settled proposition that the proper party plaintiff in an action for trespass to real property is the person in actual possession.’ Lightner Mining Co. v. Lane, 1911, 161 Cal. 689, 694, 120 P. 771, 773, Ann.Cas.1913C, 1093. In holding over after the notice of termination of the lease by the State he was wrongfully doing so. At common law a person in the actual possession of real estate, whether rightfully or wrongfully, could maintain trespass for a forcible entry upon it against any one not having a right to enter, but no action could be maintained by one wrongfully in possession as against an owner having a right to enter except where excessive force was used to dispossess him. In Walker v. Chanslor, 1908, 153 Cal. 118, at page 127, 94 P. 606, at page 609, 17 L.R.A.,N.S. 455, 126 Am.St.Rep. 61, the court said: ‘The rule of the common law is the rule which obtains in this state, except in so far as it has been changed by the provisions of the Code relative to the summary remedy provided therein for a forcible entry made upon real property. Under these provisions a right to action is given to one wrongfully in actual possession of property where a forcible entry is made, even by the owner, in which action damages occasioned through the forcible entry may be recovered, and judgment for the restitution of the property had. But the Code prescribes a method of procedure and the extent of the remedy for such forcible entry, and that remedy is exclusive. A person wrongfully in possession, dispossessed by the owner of the property having a right of entry, and no excessive force being used in asserting it, is not entitled to maintain any other action than is afforded for a forcible entry under the Code. He was not entitled to maintain, under such circumstances, any action whatever under the common law, and the common-law rule has only been changed in this state to the extent, and no further, that the Code affords him a remedy under its provisions referred to which he otherwise would not have.’ See, also, Canavan v. Gray, 1883, 64 Cal. 5, 7, 27 P. 788. Plaintiff, therefore, could not maintain an action for trespass against Mrs. Kroenert, the owner having a right of entry, since he was not only wrongfully holding over but not in actual possession as hereinafter shown; nor could he prevail on the theory that this action conformed to the code requirements for suits under summary proceedings, Code Civ.Proc. secs. 1159–1179a, for in such actions a plaintiff is required to show, in addition to the forcible entry or forcible detainer complained of, that ‘he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer.’ Code Civ.Proc. sec. 1172. Neither questions of title nor of right to possession arise in actions for forcible entry. California Products, Inc., v. Mitchell, 1921, 52 Cal.App. 312, 198 P. 646. By the act of subletting the premises, plaintiff placed in actual possession his subtenants, whose terms, as heretofore shown, did not expire until May 21st. It has been held that where a tenant is in the actual possession of the premises any entry made by a third party during the existence of his term is an unlawful entry upon him alone and only he, the tenant, and not his landlord, may maintain an action for forcible entry and detainer. Treat v. Stuart, 1855, 5 Cal. 113; 12 Cal.Jur. 604; see, also, Chezum v. Campbell, 42 Wash. 560, 85 P. 48, 7 Ann.Cas. 921; 22 Am.Jur. 922. The rights, duties and liabilities between a sublessor and a sublessee are determined by the general rules governing the rights, duties and liabilities as between landlord and tenant (32 Am.Jur. 339), and since the entry was made during the existence of the term under which the Bronsons had been placed in possession, it follows that plaintiff could not maintain an action for forcible entry and detainer. The fact that plaintiff was for several days a lodger on the premises during his subtenants' term is not to be deemed such possession as would entitle him to maintain the proceedings. 22 Am.Jur. 922. It was immaterial so far as he was concerned whether defendants' entry was made without his consent, express or implied, or whether or not it was forcibly made. Therefore, there was no proper basis for the finding that the entry, use and occupation by the defendants occurred ‘to the damage of the plaintiff in the amount of One Thousand Four Hundred Dollars ($1,400.00).’ Nor do we find any basis for the finding that the defendants without the consent of the plaintiff took and carried away all his personal property and effects to his damage in the sum of $1,200. It has been held that ‘In order to charge the defendant with the conversion of the plaintiffs' goods he must be shown to have done some act implying the exercise or assumption of title, or of a dominion over the goods, or some act inconsistent with the plaintiffs' right of ownership, or in repudiation of such right.’ Steele v. Marsicano, 1894, 102 Cal. 666, 669, 36 P. 920, 921; see, also, 23 Mck.Dig. 642. We have quoted the letter of Mrs. Kronert's attorney by which the plaintiff was notified that he might have possession of his personal property by applying at the attorney's office. Furthermore, he was given ten days within which to call for his furniture and we do not feel that when he failed within that reasonable time to take possession of the property that it could be fairly said that placing the goods in storage to be held for him at his expense was in defiance of his rights. On the contrary, it was an express recognition of his complete title to the goods and dominion over them.

Our views heretofore stated compel us to the conclusion that the acts of the defendants were not done, under the circumstances of this case, ‘wantonly and maliciously and with a reckless disregard of the rights and privileges of the plaintiff.’ Therefore, the finding by which he was held to be entitled to punitive damages in the sum of $300 finds no support in the evidence.

The judgment is reversed.

DESMOND, Presiding Justice.

SHINN and WOOD, JJ., concur.