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District Court of Appeal, First District, Division 1, California.

Virginia JORDAN, Plaintiff and Appellant, v. Andrew B. TALBOT, Defendant and Respondent.*

No. 18792.

Decided: August 24, 1960

Daniel Kass, San Francisco, for appellant. Hartly Fleischmann, San Francisco, for respondent.

Plaintiff's amended complaint stated two causes of action. One was for forcible entry and detainer. The other was for conversion of her personal property. The jury returned a verdict for plaintiff and awarded her $6,500 general damages and $3,000 exemplary damages. The court denied defendant's motion for a directed verdict but did order entry of a judgment for defendant notwithstanding the verdict, and, alternatively, granted defendant's motion for new trial. The motion for new trial was granted solely on grounds of error in law occurring at the trial. Plaintiff appeals from both the judgment and the order granting a new trial. To avoid confusion, reference to the parties will be that of plaintiff and defendant as they appeared in the trial court, rather than as appellant and respondent.

The essential facts are not disputed. Plaintiff was a tenant in defendant's apartment house, having rented an unfurnished apartment under a written lease executed on or about July 1, 1957. Among its terms, it provided that: ‘In the event of any violation of said terms and conditions by the tenant, the lessor shall have the right to take possession forthwith and terminate this tenancy, returning to tenant any unused portion of rent paid after deducting necessary closing charges * * *’; also, that: ‘Lessor shall have a lien upon all personal effects, furniture and baggage contained in tenant's apartment for all unpaid charges.’

Plaintiff was admittedly two months in arrears in rent, and on May 10, 1958, had been given a three-day notice to leave the apartment. While plaintiff was away from the apartment on May 14, 1958, defendant entered her apartment by means of a passkey, and removed the contents. This included clothing, personal effects, furniture, furnishings, drapes, rugs and wall-to-wall carpeting. Most of these things were put in storage, to plaintiff's account. When plaintiff returned to her apartment at about 1:30 A.M. on May 15, 1958, she discovered the situation and asked the manager of the apartment house what had happened. He said: ‘Get the hell out of here. You're out of this place. Don't talk to me about it. Call Mr. Talbot.’

Plaintiff filed her complaint on May 15, 1958 and summons was issued and served on defendant the same day. Thereafter, on said day, defendant transferred, without consideration, the ownership of said apartment house to a corporation owned by his wife. Plaintiff amended her complaint on May 19, 1958, but the allegations were substantially the same as in her original complaint. Defendant never filed an unlawful detainer action to obtain possession of plaintiff's apartment prior to his entry.

Both in his answer and in his pretrial statement, defendant expressly disclaimed seizure of plaintiff's property under a lien. He admitted plaintiff's right to said belongings, which were stored in plaintiff's name. He contended that plaintiff had abandoned the apartment prior to his entry. At the trial, however, defendant proposed instructions based on the theory that his entry was not unlawful because of the terms of the lease; that there had been no breaking into the premises because the entry was made by using a key; and that plaintiff's belongings had been taken pursuant to lien thereon created by the terms of the lease. On appeal it is not contended that plaintiff abandoned the premises prior to the landlord's entry. Defendant relies entirely on the claim that there was no violence or breaking into the apartment because a key was used to open the door; that the lease conferred upon him the right to so enter; and that entry was made and plaintiff's property removed in the enforcement of the lien.


Two issues are presented to the court here:

(1) Did defendant's entry constitute a forcible entry or a forcible detainer?

(2) Did defendant enter and take plaintiff's property lawfully under a lien?

Did Defendant's Entry Constitute Focible Entry or Forcible Detainer?

Code of Civil Procedure, section 1159, provides:

‘Every person is guilty of a forcible entry who either:

‘1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property; or,

‘2. Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.’

Defendant contends that he gained entry to the unfurnished apartment pursuant to the terms of a lease, by the use of a passkey, and in the absence of plaintiff; further, that there was no breaking, violence or circumstance of terror; hence, there was no evidence to support plaintiff's cause of action for forcible entry or forcible detainer. He claims that no damage was done to person or property, and no public disturbance resulted.

This was the same position taken by the landlord who was defendant in the case of California Products, Inc. v. Mitchell, 52 Cal.App. 312, 198 P. 646. There the facts were somewhat similar to those in the case at bar. The lease provided that in case the rent reserved by it were unpaid, it would be lawful for lessors, ‘* * * ‘without previous notice or demand, to reenter the demised premises and the same peaceably to hold and enjoy thenceforth as if his lease had not been made’.' The tenant was five months in arrears in rent. During the absence of the tenant, the landlord gained entry and replaced the regular lock with a padlock. The court held this to constitute an unlawful entry and went on to state (supra, 52 Cal.App. 312, 314–315, 198 P. 646, 647): ‘* * * a lease must contain most direct and positive language in order to amount to a consent by a tenant that his possession may be invaded by a forcible entry. Such a consent would place him at the mercy of his landlord. In a given case a landlord might claim rent to be unpaid and the tenant dispute the claim. Such a question might easily arise. If it did arise, a landlord armed with a lease conferring the right to forcibly enter, upon nonpayment of rent, need but await the temporary absence of the tenant, then take possession by whatever means, thus settling the disputed question for himself, or placing the burden of its settlement upon the tenant. Not only so, but under the contention of appellants he might make entry in the face of the tenant, even to breaking down of doors, so long as he committed no breach of the peace as to others. It would require the most positive language in a lease to allow such practices, and we find no such language in the instrument before us. Nor do we decide that such powers may be placed in the hands of a landlord by the terms of a lease. There are most decided considerations of public policy upon such a question. Forcible entries, made in the best of faith, may easily lead to brawls, affrays and breaches of the peace.’

The language of the lease under which plaintiff Jordan held tenancy was hardly as direct or positive in giving the landlord power of re-entry as that condemned in the Mitchell case. Certainly defendant believed as of May 10, 1958, that notice of breach and demand for possession was necessary. On that date he gave a three-day notice demanding that plaintiff vacate. This is a necessary prerequisite for instituting unlawful detainer proceedings on his part. The terms of the Mitchell lease attempted to waive that. Neither lease specifically waived the necessity of a court order in case of a disputed entry by the landlord. Defendant makes no effort to distinguish the Mitchell case from the case at bar. Although plaintiff's brief cites it, quotes from it and relies strongly upon it, defendant chooses to ignore it.

If a distinction is to be made between padlocking a tenant's apartment and entering it by a passkey and removing its contents, the answer is to be found in Winchester v. Becker, 4 Cal.App. 382, 88 P. 296. There the landlord effected entry in the absence of the tenant by a false key and previously had gained entry by use of a key which was secreted over the house door. This was held to be a forcible entry within the meaning of Code of Civil Procedure, § 1159.

Defendant cites several cases in which landlords gained lawful possession of leased premises in lessee's absence, without prior court order. Each is distinguishable on its facts. In Baxley v. Western Loan & Bldg. Co., 135 Cal.App. 426, 27 P.2d 387, the tenant's agent yielded possession to the landlord on demand. Since the agent's action bound the principal, no complaint could thereafter be made that there was no consent for the landlord's reentry. In Moldovan v. Fischer, 149 Cal.App.2d 600, 308 P.2d 844, the trial court found that the entry was peaceable and possession retained without force, threat or fraud. The reviewing court held that since there was evidence to support this finding, there could be no forcible entry or forcible detainer. Providence Baptist Association v. Los Angeles Hompa Honowanji Buddhist Temple, 79 Cal.App.2d 734, 180 P.2d 925, involves an implied consent for the landlord to re-enter because the tenant returned some of the keys to the landlord after dispute over possession arose. Therefore, the fact that the tenant retained one of the keys and used the premises thereafter did not constitute retention of possession hostile to the landlord. In Goldstein v. Webster, 7 Cal.App. 705, 95 P. 677, there was no tenancy created. The alleged lease was subject to defendant landlord's approval. It was never forthcoming, so plaintiff at no time acquired any right in defendant's premises. Williams v. General Electric Credit Corp., 159 Cal.App.2d 527, 323 P.2d 1046, is an action for trespass involving the conduct of a seller seeking to repossess an appliance sold to plaintiff under a conditional sales contract which authorized repossession in case of default. The case does not involve entry by a landlord after breach of lease. The question of unlawful entry arises on the issue of whether or not defendant abused permission given under the contract to enter for the limited purpose of repossessing the appliance after default.

The evidence would also support a finding that there had been a forcible entry as defined by subdivision 2 of Code of Civil Procedure, § 1159. When plaintiff returned to her apartment at 1:30 A.M. on May 15, 1958, the undisputed testimony is that without provocation defendant's agent and employee ordered her to ‘Get the hell out of here. You're out of this place. Don't talk to me about it. Call Mr. Talbot.’ Bearing in mind that the jury had before it the issue of whether or not the tenant had been turned ‘* * * out by force, threats or menacing conduct * * *,’ such evidence would certainly support a finding that defendant gained possession of the apartment by force, threats or menacing conduct.

Furthermore, the apartment house manager's conduct, binding upon defendant, would support a finding that plaintiff was kept out of her apartment ‘* * * By force, or by menaces and threats of violence, * * *’ This would constitute forcible detainer as defined by subdivision 1 of section 1160, Code of Civil Procedure. This section provides: ‘Every person is guilty of a forcible detainer who either:

‘1. By force, or by meances and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or,

‘2. Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant.’

Plaintiff filed her suit on May 15, 1958. The only demand made by her for possession was the inquiry as to what had happened when she discovered her furniture and effects had been removed. Whether the unlawful detainer persisted for five days or whether the demand for possession was made in the manner required by subdivision 2 of this code section is immaterial. Each subdivision sets forth a distinct course of conduct which constitutes a forcible detainer. The demand for possession and the five-day period allowed for compliance, which are prerequisites for a cause of action under subdivision 2, are not necessary to perfect plaintiff's cause of action under subdivision 1 of the code section.

Did Defendant Enter and Take Plaintiff's Property Lawfully Under a Lien?

Defendant contends on this appeal that his entry was privileged because he had had a lien upon plaintiff's personal property; that he was entitled to enforce the lien because plaintiff had become delinquent in rent; that taking pursuant to lien does not constitute conversion of the property taken. He relies on Van Dorn v. Couch, 21 Cal.App.2d Supp. 749, 64 P.2d 1197, to support his claim that a landlord may enter and seize the belongings of a tenant to enforce such a lien. The case relied upon involves a statutory innkeeper's lien created under section 1861a of the Civil Code. It holds that such a lien constitutes a valid defense to an action by a tenant against the landlord for wrongful entry and conversion of the tenant's personal belongings.

But is defendant Talbot in a position to successfully claim that he was endeavoring to enforce a lien upon the personal property of plaintiff Jordan?

In the first place, some of the property taken was furniture and clothing, which is expressly exempted from seizure under the terms of said section 1861a. Therefore, defendant can hardly claim that all property seized was taken under a statutory innkeeper's lien.

Second, after taking plaintiff's personal property, he did not follow the legal procedure specified in the code for holding, selling and applying proceeds toward the satisfaction of the debt secured by the lien. Defendant stored the property to plaintiff's account. Plaintiff could reacquire possession thereof, not by paying off the delinquent rent, but by paying the storage charges. The only way defendant could realize any satisfaction in settlement of his claim for unpaid rent would be to sue plaintiff and attach and/or execute upon such of the property as was not exempt from execution.

In the third place, the record quite clearly shows that defendant made no claim that the conduct complained of was privileged because of his alleged lien until during or after the trial of this case. Defendant's verfied answer alleges: ‘That defendant, at all times herein [h]as freely admitted Plaintiff's right to the possession of her furniture, furnishings and personal belongings in said apartment, and never had denied Plaintiff of their possession, but removed and stored same, solely in the belief that she had as a matter of fact abandoned said apartment * * *’. In defendant's pretrial statement, he declared: ‘Defendant will also offer proof that at no time did he exercise a claim to plaintiff's furniture, furnishings and/or personal belonging[s] but at all times admitted plaintiff's right to possession to said belongings.’ In his opening statement, defendant gave no indication that he intended to rely on any defense except that plaintiff had abandoned the apartment prior to May 14, 1958.

On this state of the record, no defense of entry and seizing pursuant to lien was before the court when the case was tried. One of the prime purposes of pleadings and pretrial proceedings is to determine what issues are before the court and jury. If litigants are permitted to change their positions as expediency dictates, injecting new and inconsistent defenses during trial or upon motion for now trial or upon appeal, the result can only be further confusion in the law. Nowhere in the evidence before the court or jury was there anything that indicated that defendant was, in fact, entering or taking possession to enforce a lien. Therefore, the trial court was not even in a position to permit defendant to amend his answer to conform to proof. This would be necessary in order to properly present this issue to the jury. Glazer v. Clift, 10 Cal. 303; Hatton v. Gregg, 4 Cal.App. 542, 88 P. 594.

Nevertheless, the court did instruct the jury ‘that the defendant Talbot had a lien upon the property of the tenant to secure him in event that plaintiff was in default of her rent.’ Instructions followed that placed before the jury the issue of whether or not defendant's conduct was privileged under such a lien; also whether or not entry was made and possession of property taken peaceably. The resulting verdict for plaintiff, under such instructions, creates an implied finding that defendant's entry of the apartment and taking of the contents was not pursuant to a lien or was not accomplished in a peaceable manner.

The statutory lien created by section 1861a of the Civil Code contemplates that the landlord will retain property taken pursuant to lien and, if the debt is not otherwise satisfied, follow the statutory procedure to liquidate and apply the proceeds toward payment of the debt. Common law liens for security of debt contemplate the same general procedure. The conduct of defendant, after taking plaintiff's belongings, was completely inconsistent therewith. The lease involved here provided that: ‘Lessor shall have a lien upon all personal effects, furniture and baggage contained in tenant's apartment for all unpaid charges.’ If defendant contends that he was endeavoring to enforce this contractual lien, he failed to take the necessary legal steps.

No procedure for enforcement appears from the contract. Therefore, an action in equity would be necessary to supervise the seizure, liquidate the property subject to lien, and apply the proceeds to fulfill the objects of the contract. Childs Real Estate Company, Incorporated v. Shelburne Realty Company, 23 Cal.2d 263, 143 P.2d 697. Defendant, having been unable to justify his removal of plaintiff's belongings, was properly held responsible to plaintiff in damages for the conversion of plaintiff's personal property.

The judgment for defendant, notwithstanding the verdict, should be reversed because no error in law was committed that would adversely affect defendant and there was sufficient evidence to support the verdict in favor of plaintiff. There then remains the question of the proper disposition of the alternative order made by the court, granting defendant's motion for new trial.

The court granted the motion for new trial on the sole ground of error in law occurring at the trial. This raises the presumption that there is sufficient evidence to sustain the verdict, and that the damages are not excessive. Greer v. Freitas, 66 Cal.App.2d 335, 338, 152 P.2d 15; Higgins v. Los Angeles Gas & Electric Co., 159 Cal. 651, 655, 115 P. 313, 34 L.R.A., N.S., 717; Code of Civil Procedure, § 657. The error of law claimed by defendant is that the instructions to the jury on the subject of forcible entry and forcible detainer should not have been given because the conduct complained of did not constitute violation of either sections 1159 or 1160 of the Code of Civil Procedure. Since the evidence was sufficient to support a recovery by plaintiff under either or both of those code sections, no such error was committed. The order granting defendant a new trial should be reversed.

Judgment notwithstanding the verdict reversed.

Order granting motion for new trial reversed.

QUAYLE, Justice pro tem.

TOBRINER, Acting P. J., and DUNIWAY, J., concur.