GRAY v. WHITMORE

Reset A A Font size: Print

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

Robert T. GRAY and Dorothea Gray, on behalf of themselves and all others similarly situated, Plaintiffs and Appellants, v. Earl B. WHITMORE, Sheriff of San Mateo County, Kogelschatz Korp., dba Key Property Management, Defendants and Respondents.

Cecile DIONIO, individually and on behalf of all other persons similarly situated, Plaintiff and Appellant, v. Matthew C. CARBERRY, Sheriff of the City and County of San Francisco, his employees, agents, servants and all persons in concert with him, Owen Mears, his employees, agents, servants and all persons in active concert with him, Defendants and Respondents.

Olga BRYSON, individually and on behalf of all others, similarly situated, Petitioner, v. Matthew C. CARBERRY, Sheriff of the City and County of San Francisco, Respondent; Joseph MOALEM, Real Party in Interest.

Civ. 27565, 28540 and 28319.

Decided: January 28, 1971

Bruce A. Bailey, Cecil L. McGriff, Jeffrey D. Jennings, Jay-Allen Eisen, Menlo Park, for appellants Robert and Dorothea Gray. Keith C. Sorenson, Dist. Atty., by Jerome F. Coleman, Deputy Dist. Atty., Redwood City, for respondents Earl B. Whitmore and Kogelschatz Korp. Daniel N. Loeb, Sidney M. Wolinsky, Armando Menocal III, Norman Nayfach, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, for appellants Cecile Dionio and others. James C. Purcell, San Francisco, for respondents Matthew C. Carberry, Sheriff, and his employees, agents, servants and all persons in concert with him. Norman S. Mayfach, Armando M. Menocal, III, San Francisco, for petitioners Olga Bryson and others. Warren Sullivan, San Francisco, for real party in interest.

The proceedings before this court involve three separate causes which have been consolidated for determination because they present common questions of law. In Gray v. Whitmore (1 Civ. 27565) and in Dionio v. Carberry (1 Civ. 28540) the respective plaintiffs appeal from an order denying them a preliminary injunction and a peremptory writ of mandate. In Bryson v. Carberry (1 Civ. 28319) a petition for a writ of mandate was filed in this court and we issued an alternative writ of mandate.

Statement of the Cases

Gray v. Whitmore

Plaintiffs were evicted from their Redwood City apartment pursuant to an unlawful detainer action. Pursuant to a writ of possession defendant sheriff seized plaintiffs' furniture and sundry personal effects remaining on the premises and delivered them to the owner of the premises for safekeeping pursuant to Code of Civil Procedure section 1174.1 Plaintiffs thereupon filed with defendant sheriff a claim of exemption pursuant to Code of Civil Procedure section 690.26.2 The sheriff refused to accept or act upon such claim and the instant action was instituted whereby, pursuant to a petition for a writ of mandate, prohibitive injunction, and declaratory relief, plaintiffs, on their own behalf and on behalf of all those similarly situated, sought to compel the sheriff to accept and honor their claim of exemption, to have section 1174 of the Code of Civil Procedure3 declared unconstitutional, and to prevent the sheriff from distraining and selling their property. Following a hearing, the trial court denied the preliminary injunction, discharged the alternative writ of mandate it had previously issued, terminated a temporary stay of execution, and dismissed the complaint.

Dionio v. Carberry

The facts are essentially similar to those in Gray v. Whitmore and arise out of the eviction of plaintiff from her San Francisco apartment. In this case the court below denied plaintiff's petition for a peremptory writing of mandate and preliminary injunction, dissolved the temporary restraining order, and discharged the order to show cause.

Bryson v. Carberry

The facts are essentially similar to those in Gray v. Whitmore and arise out of the eviction of plaintiff from her San Francisco apartment. Plaintiff sought by petition for writ of mandate filed in this court to compel respondent sheriff to accept and process her claimed exemption and for an injunction against the landlord, the real party in interest, directing him to release the subject property and prohibiting him from selling such property. We issued an alternative writ of mandate directing the sheriff to show cause why we should not issue a peremptory writ compelling him to accept and process petitioner's claim of exemption and of those similarly situated and directing the real party in interest to show cause why he should not release to petitioner the subject personal property.

Contentions

Plaintiff Dionio and petitioner Bryson contend that the subject property is exempt from execution under the provisions of section 690, and that they are entitled to avail themselves of the exemption rights under the provisions of section 690.26. They contend, alternatively, that section 1174 is repugnant to the equal protection clauses of the federal and California Constitutions. Bryson also contends, alternatively, that section 1174 is repugnant to the due process clauses of the federal and California Constitutions. As for the plaintiffs Gray, they contend that section 1174 is repugnant to the equal protection and due process clauses of the federal and California Constitutions. Respondents, in turn, assert that section 1174 is constitutional, and, on their part, question the propriety of the class actions here involved. Insofar as the respective sheriffs are concerned, they contend that they are not obliged under the statute to accept and process any claim of exemption and that their responsibility and official function ceased and terminated when they restored the respective landlords to possession and delivered the property remaining on the premises to them.

Code of Civil Procedure Section 1174

In order to place the contentions of the parties in proper focus our first inquiry must be directed to the meaning of the language of section 1174 which is pertinent to the issues before us.4 We are called upon, therefore, to ascertain the intent of the Legislature pursuant to the fundamental rule of statutory construction that the court should ascertain such intent so as to effectuate the purpose of the law. (Select Base Materials v. Board of Equalization, 51 Cal.2d 640, 645, 335 P.2d 672; Benson v. Superior Court, 214 Cal.App.2d 551, 558, 29 Cal.Rptr. 760.) In arriving at such intent we consider the purposes sought to be achieved and the evils to be eliminated. (Benson v. Superior Court, supra; Lesem v. Board of Retirement, 183 Cal.App.2d 289, 298, 6 Cal.Rptr. 608.) We are bound, of course, to give effect to statutes according to the usual, ordinary language employed in framing them. (Chavez v. Sargent, 52 Cal.2d 162, 203, 339 P.2d 801 [overruled on other grounds, Petri Cleaners, Inc. v. Automotive Employees, Inc., Local No. 88, 53 Cal.2d 455, 475, 2 Cal.Rptr. 470, 349 P.2d 76]; Benson v. Superior Court, supra; Rich v. State Board of Optometry, 235 Cal.App.2d 591, 604, 45 Cal.Rptr. 512.)

The subject language which we must interpret is the following: ‘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. * * * If the tenant does not vacate the premises within five days from the date of service [of the writ], 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. * * * [¶] 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 for 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 used to pay the costs of the plaintiff on 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.’

The foregoing provisions of section 1174 are interpreted by us to mean as follows: When the plaintiff landlord obtains a writ of possession in an unlawful detainer action he is restored to possession in the following manner: the enforcing officer serves the writ upon the tenant who has five days from the date of service or mailing as specified in the statute to vacate the premises; and if the tenant does not vacate the premises within said period the enforcing officer must remove the tenant from the premises and place the plaintiff landlord in possession thereof. If goods, chattels or personal property of the tenant remain on the premises at the time the plaintiff is placed in possession an inventory must be made thereof. This inventory shall be made by the enforcing officer or some other person. When made by a person other than the officer, the inventory must be verified in writing by the officer. When the plaintiff is placed in possession and an inventory made as required in the statute, the responsibilities and duties of the enforcing officer cease and terminate. The plaintiff landlord is then required to store such property in a place of safekeeping for 30 days. The place of storage may be in the premises restored to the plaintiff or some other place. When the storage takes place on the premises the plaintiff is entitled to costs of storage computed on the basis of the fair rental value of the premises for the term of the storage. If the storage is elsewhere the plaintiff is entitled to be reimbursed for the reasonable costs incurred by the plaintiff in providing such storage. The plaintiff is obliged to store such property for a period of 30 days only during which time the tenant may redeem the property by paying the costs of storage and the judgment rendered in favor of the plaintiff, including costs. If the property is not redeemed within said 30-day period, it is deemed abandoned and may be sold at public auction by competitive bidding. The monies realized from said sale are to be applied to the costs of the sale and the storage costs, and any balance is to be applied to the judgment, including costs. Any remaining balance is to be paid to the tenant defendant.

As we view the foregoing statutory provisions the relation between the plaintiff landlord and the defendant tenant becomes one of bailor and bailee at the time possession of the premises is restored to the plaintiff landlord and the personal property of the tenant remains on the premises. ‘In a broad sense a bailment is the delivery of a thing to another for some special object or purpose, on a contract, express or implied, to conform to the objects or purposes of the delivery which may be as various as the transactions of men.’ (H. S. Crocker Co., Inc. v. McFaddin, 148 Cal.App.2d 639, 643, 307 P.2d 429, 432; Niiya v. Goto, 181 Cal.App.2d 682, 687, 5 Cal.Rptr. 642; People v. Cohen, 8 Cal. 42, 43.)

The bailment which arises by virtue of the provisions of section 1174 is a voluntary deposit for safekeeping (Civ. § 1813), rather than an involuntary deposit. (Civ.Code, § 1815.) ‘A voluntary deposit is made by one giving to another, with his consent, the possession of personal property to keep for the benefit of the former, * * *’ (Civ. Code, § 1814) while an involuntary deposit is one that arises by the accidental leaving of such property in the possession of any person or the committing of such property by its owner to the care of any person by reason of an extraordinary emergency such as fire, shipwreck, inundation, insurrection or riot. (Civ. Code, § 1815.) We observe here that an involuntary deposit is a gratuitous deposit in which the bailee receives no consideration beyond the mere possession of the thing deposited and for which deposit he is entitled to no reward. (Civ. Code, §§ 1844, 1845.) As already noted, section 1174 provides that the landlord bailee is entitled to his storage costs.

As we view the bailment created by section 1174, it is an implied contract of bailment which comes into being when the tenant fails to remove his property from the demised premises within the time presented by that statute and the landlord takes delivery of such property. Under its terms the tenant, who is presumed to know the provisions of the statute, impliedly consents that his property be delivered to the landlord for safekeeping and storage, and he impliedly assents that the enforcing officer acts as his agent in making such delivery. The landlord, in turn, by reason of his having invoked the provisions of section 1174 and taking the property in his possession and control, impliedly consents to keep such property for purposes of safekeeping and storage. (Civ. Code, § 1814; see Gordon H. Ball, Inc. v. Parreira, 214 Cal.App.2d 697, 703–704, 29 Cal.Rptr. 679; Bank of America National Trust & Savings Ass'n v. Taliaferro, 144 Cal.App.2d 578, 583, 301 P.2d 393; and see Greenberg Bros., Inc. v. Ernest W. Hahn, Inc., 246 Cal.App.2d 529, 531, 54 Cal.Rptr. 770; Robinson v. Haas, 40 Cal. 474, 478–479; Cussen v. Southern California Sav. Bank, 133 Cal. 534, 535–536, 65 P. 1099.)

The instant deposit is called a storage and the landlord becomes a depositary for hire. (Civ. Code, § 1851.) His rate of compensation is fixed by section 1174 to the reasonable costs incurred by him in providing such storage, or, if he stores the property on the landlord's premises, the fair rental value of such premises. (See Civ. Code, § 1853.) Pursuant to section 1174 the length of time during which the storage is to continue is 30 days. (See Civ. Code, § 1854.) The tenant depositor may terminate the deposit at any time within said 30-day period upon payment of the reasonable costs incurred by the landlord in providing such storage.5 The landlord depositary may not, however, terminate the deposit during said 30-day period. (§ 1174; see Civ. Code, § 1854.) If the depositor does not terminate the storage within the 30-day period the property is deemed abandoned and may be sold by the depositary at public auction. (§ 1174.) From the proceeds realized the depositary is entitled to be reimbursed for the costs of storing and selling such property. (§ 1174.) This right of reimbursement is akin to the lien which a depositary for hire ordinarily has for storage charges and expenses of sale where default is made in satisfying his valid lien. (See Civ. Code, § 1856.)

The pertinent provisions of section 1174 do, however, contain characteristics which are not indigenous to bailments, but, rather, are more akin to the procedures afforded for the enforcement of judgments against the property of a judgment debtor by way of the writ of execution. These are the provisions which provide for the redemption of the stored property by the tenant defendant upon the payment of the judgment rendered in favor of the plaintiff landlord, including costs, and those which provide that upon the sale of the unredeemed property the balance of all money realized from the sale after the payment of the costs of the plaintiff in storing and selling the property shall be applied in payment of the landlord plaintiff's judgment.

The Exemption Statutes

Adverting to the contention that the subject property is exempted from execution under the provisions of section 690 and that plaintiff Dionio and petitioner Bryson are entitled to avail themselves of the exemption rights under the provisions of section 690.26, we observe that these statutes apply to property which has been levied upon by the levying officer under a writ of attachment or execution and which, it is claimed, is exempt from attachment or execution pursuant to the provisions of sections 690 to 690.25, inclusive.6 In the instant case, following the judgment for restitution of the premises and for rents, no writ of execution was issued for enforcement of the judgment for rents against Dionio or Bryson, nor was any levy made pursuant to a writ of execution upon their goods, chattels or personal property located on the subject premises. (See §§ 681, 682, 682.1, 683, 684, 687, 688.) The only writ that was issued was one for restitution of the premises pursuant to section 1174. Upon the service of this writ Dionio and Bryson were free to remove their property from said premises within five days from the date of service of the writ since there was no levy against it. When they did not remove the property within that time the property was delivered to plaintiff landlord by the sheriff for safekeeping pursuant to section 1174. At that moment the sheriff's duties and obligations ceased since he had fully discharged the writ of restitution by restoring the premises to the landlord and entrusting the tenant's property to him for safekeeping. Accordingly, since there was no levy of execution and the sheriff had fully performed his duties under the writ of restitution, he was under no duty or obligation to entertain or recognize any claim of exemption. In sum, there was no property in the physical possession or control of the sheriff concerning which he could entertain a claim of exemption under the procedures contemplated for the determination of such claim in section 690.26. These procedures clearly apply when the property has been levied upon a writ of attachment or execution and the sheriff is exercising dominion and control of the property levied upon pursuant to such writ.

We hold, moreover, that it may not be contended that the delivery of the subject property by the sheriff to the landlord properly constituted a levy upon the property so as to invoke the exemption statutes. As pointed out above, the plaintiff landlord was merely a bailee for storage. He did not, nor could he, assume the status of a levying officer since such is not contemplated by the statutes. By the same token he could not entertain or act upon any claim of exemption. His function was merely that of a depositary to whom the statute under which he became such a depositary provides for the reimbursement of his storage charges and the payment of his judgment against the tenant defendant. Such reimbursement, therefore, may not be defeated by a claim of exemption under the statutes applicable to levies by way of writs of attachment or execution. The question, then, whether such reimbursement may be rendered nugatory must turn on a consideration of the alleged constitutional infirmities.

Due Process and Equal Protection

Section 1174 is attacked on the basis that it denies substantive due process and the equal protection of the law. With respect to due process, it is urged that the portion of the statute under discussion constitutes an arbitrary deprivation of property by legislative fiat absent any justifying public policy, and that it constitutes a statutory collection device for landlord judgment creditors, and is therefore promotive of special rather than general interests. The latter argument appears more properly addressed to the issue whether the statute deprives the tenant judgment debtor of the equal protection of the law. In this regard we note that it is urged that the statute deprives the tenant judgment debtor of the equal protection of the law because it invidiously discriminates against the class of judgment debtors, who are coincidentally tenants, by setting up special privileges in favor of landlord judgment creditors. With regard to the alleged deprivation of the equal protection of the law, the contention is also made that section 1174 deprives the tenant judgment debtor of the equal protection of the law because it prevents such debtors from asserting their statutory exemptions with respect to personal property.

In considering these contentions we observe in preface that article I, section 13 of the California Constitution, which provides that no person shall be deprived of property without due process of law, has been held to identical in scope and purpose with the due process clause of the federal Constitution. (See Gray v. Hall, 203 Cal. 306, 318, 265 P. 246; Abstract Investment Co. v. Hutchinson, 204 Cal.App.2d 242, 245, 22 Cal.Rptr. 309.) Similarly, article I, section 21 and article IV, section 25 of the California Constitution, providing, respectively, that no citizen or class of citizen shall be granted privileges and immunities which are not granted to all citizens upon the same terms and that the Legislature shall not pass local or special laws in certain enumerated cases, are essentially the same and, accordingly, are governed by the same standards as those prescribed by the Fourteenth Amendment of the federal Constitution. (See County of San Bernardino v. Way, 18 Cal.2d 647, 658, 117 P.2d 354; County of Los Angeles v. Southern Cal. Tel. Co., 32 Cal.2d 378, 389, 196 P.2d 773; Whittaker v. Superior Court, 68 Cal.2d 357, 367, fn. 16, 66 Cal.Rptr. 710, 438 P.2d 358; Hargens v. Alcoholic Bev., etc., App. Bd., 263 Cal.App.2d 601, 605, 69 Cal.Rptr. 868.)

The term ‘due process of law’ asserts a fundamental principle of justice which is not subject to any precise definition but deals essentially with the denial of fundamental fairness, shocking to the universal sense of justice. (See Brown v. New Jersey, 175 U.S. 172, 176, 20 S.Ct. 77, 44 L.Ed. 119; Dent v. West Virginia, 129 U.S. 114, 123–124, 9 S.Ct. 231, 32 L.Ed. 623; Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 86 L.Ed. 1595; Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911; Mihans v. Municipal Court, 7 Cal.App.3d 479, 484, 87 Cal.Rptr. 17.) The definition in each case depends upon the circumstances varying with the subject matter and the necessities of the situation. (Moyer v. Peabody, 212 U.S. 78, 84, 29 S.Ct. 235, 53 L.Ed. 410.) Accordingly, the same circumstances may in one setting constitute a deprivation of due process while in another setting, in the light of other considerations, the same circumstances may not amount to such denial. (Betts v. Brady, supra [overruled on other grounds, Gideon v. Wainwright, 372 U.S. 335, 339, 83 S.Ct. 792, 9 L.Ed.2d 799].)

Under the concept of ‘due process of law’ procedural as well as substantive rights are protected. Procedural due process requires that before a person is deprived of his life, liberty or property he must be given notice of the proceeding against him (see Anderson Nat. Bank v. Luckett, 321 U.S. 233, 246, 64 S.Ct. 599, 88 L.Ed. 692; Pierce v. Superior Court, 1 Cal.2d 759, 762, 37 P.2d 453, 460), he must be given an opportunity to defend himself (see Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 182, 59 S.Ct. 160, 83 L.Ed. 111; Gray v. Hall, supra, 203 Cal. 306, 318, 265 P. 246), and the propriety of the deprivation must be resolved in a manner consistent with essential fairness. (See Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307; Galvan v. Press, supra, 347 U.S. 522, 530, 74 S.Ct. 737; Mihans v. Municipal Court, supra, 7 Cal.App.3d 479, 484, 87 Cal.Rptr. 17.) Substantive due process, on the other hand, deals with protection from arbitrary legislative action, even though the person whom it is sought to deprive of his right to life, liberty or property so afforded the fairest of procedural safeguards. In substantive law such deprivation is supportable only if the conduct from which the deprivation flows is prescribed by reasonable legislation reasonably applied, i.e., the law must not be unreasonable, arbitrary or capricious but must have a real and substantial relation to the object sought to be attained. (See Nebbia v. New York, 291 U.S. 502, 525, 54 S.Ct. 505, 78 L.Ed. 940; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 81 L.Ed. 703.)

Directing our attention to the constitutional guaranty of equal protection of the laws, we observe that it has been judicially defined to mean that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, and property and in their pursuit of happiness. (See Truax v. Corrigan, 257 U.S. 312, 336–338, 42 S.Ct. 124, 66 L.Ed. 254; Kentucky Finance Corporation v. Paramount Auto Exchange Corp., 262 U.S. 544, 550, 43 S.Ct. 636, 67 L.Ed. 1112.) As observed in Purdy & Fitzpatrick v. State of California, 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 85, 456 P.2d 645, 653, ‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ This concept does not, however, require absolute equality (Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 9 L.Ed.2d 811; In re Antazo, 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999) or that a statute necessarily apply equally to all persons (Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 16 L.Ed.2d 577; In re Antazo, supra); rather, it permits a state to provide for differences so long as the result does not amount to an invidious discrimination. (Douglas v. California, supra, at p. 356, 83 S.Ct. 814; In re Antazo, supra.)

In Antazo, the California Supreme Court took cognizance of the two-level test employed by the United States Supreme Court in reviewing legislative classifications under the equal protection clause with the observation that a different standard is employed in cases involving ‘suspect classifications' or touching ‘fundamental interests' as distinguished from cases in the area of economic regulation. In the former it must be established that the state has a compelling interest which justifies the law and that the distinctions drawn by the law are necessary to further its purpose; in the latter there is a presumption of constitutionality and it is required merely to establish that the distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. (In re Antazo, supra, 3 Cal.3d 100, 110–111, 89 Cal.Rptr. 255, 473 P.2d 999; see McDonald v. Board of Election Com'rs of Chicago, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739; Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600; and see Westbrook v. Mihaly, 2 Cal.3d 765, 784–785, 87 Cal.Rptr. 839, 471 P.2d 487.)

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 the 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.

The provisions for storage are altogether reasonable and in no sense a denial of due process. They satisfy procedural due process because the right to the restitution of the premises is dependent upon notice of the unlawful detainer proceedings and a judgment in a trial in which the defendant tenant is afforded an opportunity to defend himself. Upon the issuance of a writ of restitution a copy must be served or posted as provided in section 1174 so as to give notice to the tenant defendant that he must vacate and remove his property within five days. It is only when the tenant fails to remove his property from the restored premises that the property is delivered to the plaintiff landlord for safekeeping. The landlord acts, in point of law, on the evicted tenant's behalf in storing and safeguarding the tenant's property left on the vacated premises. The legislation which imposes this obligation upon the landlord is reasonable and has a real and substantial relation to the object sought to be attained. That objective is to restore the landlord to the rightful possession of his premises and at the same time obviate the possibility of loss or damage to the tenant's property where the tenant himself is unable to remove the property to a safe place. By the same token the landlord, who is performing a service for the tenant by storing the property, should be entitled to reimbursement for the reasonable costs of storage. We deem it reasonable, too, that the period during which the landlord stores the property should be limited, and, it appears to us that the 30-day period prescribed during which the tenant may redeem the property upon payment of the storage charges is likewise reasonable, as is the right to sell the property for the purpose of recouping the storage and sale costs where the tenant fails to redeem within the prescribed period. In sum, the legislation, notwithstanding that it may have the ultimate effect of depriving the tenant of his property, affords substantive due process and the fairest of procedural safeguards in the light of the objectives of the unlawful detainer statutes.

Adverting to the constitutional guaranty of equal protection of the laws, we perceive that the provisions for storage afford like treatment for persons similarly situated with respect to the legitimate purposes of the law. (See Board of Education of Los Angeles v. Watson, 63 Cal.2d 829, 833, 48 Cal.Rptr. 481, 409 P.2d 481; Blumenthal v. Board of Medical Examiners, 57 Cal.2d 228, 233, 18 Cal.Rptr. 501, 368 P.2d 101.) Clearly, all similarly situated evicted tenants are treated equally. Nor are such tenants treated differently than any other person who, as bailor, delivers property to a bailee for safekeeping or storage. Every bailor is liable to the bailee for the reasonable costs incurred by the bailee for storage and the expenses of sale where default is made on satisfying the lien which the law gives to the bailee for such storage charges. (See Civ.Code, §§ 1853, 1856, 1857; and see Civ.Code, § 2872, et seq.; see Shedoudy v. Spreckels Brothers Commercial Co., 9 Cal.App. 398, 401, 99 P. 535.)

We turn now to the second aspect of the statute providing for redemption of the tenant's personal property within 30 days by payment of the judgment for rents and damages in the unlawful detainer action and the application of the proceeds from the sale of said property to the said judgment if the property is not redeemed within the 30-day period. In its operation this portion of section 1174 permits a judgment creditor to apply property in satisfaction of his judgment in a manner which circumvents the statutes providing for writs of execution. (See § 681, et seq.) This circumvention prevents the tenant judgment debtor from asserting his claim for exemption and enables the landlord creditor to reach property which would otherwise be exempt from execution in satisfaction of his judgment. We observe here that in this state there is a strong public policy favoring exemption statutes since they are designed to save debtors from want by reason of misfortune or their improvidence. (Estate of Millington, 63 Cal.App. 498, 500–501, 218 P. 1022; Bertozzi v. Swisher, 27 Cal.App.2d 739, 742, 81 P.2d 1016; Holmes v. Marshall, 145 Cal. 777, 778–779, 79 P. 534.)

The provisions in section 1174 for the satisfaction of the judgment obtained in the unlawful detainer action are not based reasonable legislation but find their support in arbitrary action. There appears to be no rational justification for allowing a landlord creditor to reach property which nonlandlord creditors cannot reach because of the exemption statutes, since, in contemplation of law, the landlord creditor enjoys no status superior to a nonlandlord creditor. Each holds a judgment for money for the satisfaction of which both look to the debtor's sundry property. Moreover, these provisions do not have any real or substantial relation to the object sought to be obtained by section 1174. That object is the restitution of the premises to the landlord, not the satisfaction of his money judgment. It is well settled in this state that a judgment for rents and damages is only incidental to the main purpose of the unlawful detainer action which is the recovery of the possession of the premises. (Mihans v. Municipal Court, supra, 7 Cal.App.3d 479, 489, 87 Cal.Rptr. 17; Markham v. Fralick, 2 Cal.2d 221, 226–227, 39 P.2d 804; Arnold v. Krigbaum, 169 Cal. 143, 146, 146 P. 423.) In sum, in the light of the public policy favoring exemption statutes and the clear objective of section 1174, the portions of that statute which provide that the tenant debtor satisfy the money judgment before he can redeem his personal property, or which subjects the proceeds of the sale of that property to the satisfaction of the judgment when the property is not redeemed within the 30-day period, appear to us to violate substantive due process since they offend the basic concept of ‘fair play,’ the essence of due process. (See Galvan v. Press, supra, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911; Mihans v. Municipal Court, supra, 7 Cal.App.3d 479, 484, 87 Cal.Rptr. 17.)

We perceive, too, that the second aspect of section 1174 also offends procedural due process since it deprives the tenant debtor of the opportunity to dispute the landlord creditor's clam that his money judgment be satisfied out of the tenant's property in the landlord's possession. The tenant debtor is afforded no hearing on the question whether the landlord creditor is entitled to withhold and deprive the tenant of his property which public policy, as reflected in the exemption statutes, has declared to be exempt from execution. Such deprivation violates the fundamental principles of procedural due process because the procedure adopted for the enforcement execution of the judgment does preserve the essential rights of the tenant debtor. (See Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 340–342, 89 S.Ct. 1820, 23 L.Ed.2d 349.)

The second aspect of section 1174, under discussion, also deprives tenant debtors of the equal protection of the laws enjoyed by other debtors in like circumstances. Its result amounts to an invidious discrimination. Tenant debtors whose property has not been stored by the landlord upon the restitution of the premises, as well as other nontenant debtors, may resist the application of their furniture and furnishings to the satisfaction of a money judgment by claiming the exemption provided by the execution of judgment statutes. Tenant debtors whose property has been stored as provided in section 1174 may not. As already pointed out, the concept of equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purposes of the law receive like treatment. Here, like treatment is not afforded to debtors against whom there is a money judgment. The legislative classification made by section 1174 is a ‘suspect classification.’ Accordingly, in order to justify it there must exist a compelling interest and a necessity furthering the statutory purpose. (See In re Antazo, supra, 3 Cal.3d 100, 110–111, 89 Cal.Rptr. 255, 473 P.2d 999, and cases there cited.) We do not perceive a compelling interest which justifies the second aspect of section 1174; nor do we apprehend that the distinctions drawn by it are necessary to further the purpose of section 1174. That purpose, as we have already pointed out, is to restore the landlord to his premises by permitting him to store the tenant's property and to reimbursement for the storage charges.

Class Actions

Plaintiffs and petitioners have proceeded by way of a class action. Respondents suggest that class actions are improper. In considering the respective contentions we first observe that section 382 provides that when a question of common or general interest arises in relation to persons so numerous as to be impracticable to bring them all before the court, one or more persons may sue on behalf of all such persons.

Class actions are predicated on practical necessity and paramount convenience (Daar v. Yellow Cab Co., 67 Cal.2d 695, 703–704, 63 Cal.Rptr. 724, 433 P.2d 732; Weaver v. Pasadena Tournament of Roses, 32 Cal.2d 833, 837, 198 P.2d 514; Chance v. Superior Court, 58 Cal.2d 275, 291, 23 Cal.Rptr. 761, 373 P.2d 849) and require (1) an ascertainable class and (2) a well-defined community of interest in questions of law and fact. (Daar v. Yellow Cab Co., supra, at p. 704, 63 Cal.Rptr. 724, 433 P.2d 732; Chance v. Superior Court, supra, at p. 286, 23 Cal.Rptr. 761, 373 P.2d 849.) There is an ascertainable class where individuals, not necessarily expressly known, stand in equivalent legal and factual position to the representative party. (See Daar v. Yellow Cab Co., supra, at pp. 704–706, 63 Cal.Rptr. 724, 433 P.2d 732; Weaver v. Pasadena Tournament of Roses, supra, at pp. 842–843, 198 P.2d 514.) There is a community of interest when each member can rely on adequate representation on equivalent facts and questions of law. (See Daar v. Yellow Cab Co., supra, at p. 710, 63 Cal.Rptr. 724, 433 P.2d 732; Bowles v. Superior Court of San Francisco, 44 Cal.2d 574, 587, 283 P.2d 704; Chance v. Superior Court, supra, at p. 288, 23 Cal.Rptr. 761, 373 P.2d 849.)

Here, both plaintiffs and petitioner purported to sue on behalf of all similarly situated persons. Evicted thenants whose personal property has been placed in storage pursuant to a writ of possession and who claim that such property is exempt from execution under section 690 constitute an ascertainable class. Such persons also have a well-defined community of interest in the questions of law whether the statutory exemption is good as against the procedures provided for in section 1174 and whether those procedures are constitutional. Accordingly, we conclude that the class actions were proper.

The judgment in Gray v. Whitmore (1 Civ. 27565)7 is affirmed.

The judgment in Dionio v. Carberry (1 Civ. 28540)8 is affirmed.

In Bryson v. Carberry (1 Civ. 28319)9 the alternative writ of mandate is discharged, and the petition is denied.10

FOOTNOTES

1.  Code of Civil Procedure section 1174 provides, in pertinent part, that a plaintiff landlord, having been repossessed of his premises, has the right to store, for 30 days, the tenant's personal property remaining on the premises after eviction, which property is redeemable by the tenant's payment of storage costs and any rental judgment outstanding within the 30 days. If the property is not redeemed within 30 days, it is deemed abandoned and may be sold at a public auction, the proceeds to be applied in satisfaction of the storage costs and rental judgment. Any remaining balance shall be returned to the tenant.

2.  Code of Civil Procedure section 690.26 provides, in relevant part, a procedure whereby a debtor, claiming property exemption from attachment or execution under auspices of Code of Civil Procedure sections 690.1 to 690.25, inclusive, may stay levy pursuant to a writ of execution or attachment.

3.  Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.

4.  The language under scrutiny deals particularly with amendments to that section enacted in the years 1967 and 1968.

5.  Section 1174 also provides that the tenant, upon redemption, shall pay the amount of the judgment rendered in favor of the plaintiff. As we shall hereafter point out, this requirement is invalid.

6.  Section 690, in pertinent part, provides that ‘The property mentioned in Sections 690.1 to 690.25, inclusive, * * * is exempt from execution or attachment, * * * when claim for exemption is made to the same by the judgment debtor or defendant as hereinafter in Section 690.26 provided.’ (Emphasis added.) Under section 690.2 necessary household furniture and certain specified sundry personal effects are exempt from execution or attachment. Section 690.26, in pertinent part, reads as follows: ‘(1) If the property mentioned in Sections 690.1 to 690.25, 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 * * * alleging that the property levied upon * * * is exempt, * * *’ (Emphasis added.)

7.  In this case plaintiffs sought the issuance of a peremptory writ commanding the sheriff to comply with section 690.26 and accept and process claims of exemption filed by judgment debtors who have been evicted pursuant to section 1174; to declare the storage and sale provisions of section 1174 unconstituional; to enjoin the seizure and restraint of the personal property of plaintiffs and persons similarly situated pursuant to a writ of possession issued under section 1174; and to enjoin the sale at public sale of such property pursuant to the provisions of section 1174. Plaintiffs were not entitled to any of the relief prayed for in the light of the principles enunciated in this opinion. Accordingly, the trial court was justified in denying the application for preliminary injunction and the peremptory writ.

8.  In this case plaintiffs sought, essentially, the same relief prayed for in Gray v. Whitmore. They were not entitled to the relief prayed for under the principles enunciated in this opinion. Accordingly, the trial court was justified in denying the petition for writ of mandate and the preliminary injunction.

9.  The petition for writ of mandate sought to compel the respondent sheriff to process petitioner's claim for exemption and those similarly situated and to compel the real party in interest to release to petitioner the subject personal property. Under the principles enunciated in this opinion petitioner is not entitled to the relief prayed for.

10.  In none of the instant cases was it established or contended that plaintiffs or petitioner sought to redeem the subject personal property pursuant to section 1174 by tendering of offering to pay the reasonable storage charges. It was not alleged or established that the landlord plaintiffs threaten to apply the proceeds from any sale of the stored property to their judgment, not was it sought to restrain them from so doing. In view of our holding that the landlord creditor may not demand satisfication of his money judgment as a condition for redemption and that he may not apply the proceeds of sale to such judgment because this aspect of section 1174 is unconstitutional, such action, if threatened, may be the subject of injunctive relief in appropriate proceedings.

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.

Copied to clipboard