BLAIR v. PITCHESS (1970)

This proceeding challenges the constitutionality of the auxiliary remedy of claim and delivery accorded plaintiffs in an action to recover the possession of personal property (Code Civ.Proc. §§ 509–521). Thus, although such acts are not proscribed by the pertinent legislation, by summary judgment plaintiffs (as taxpayers and citizens of Los Angeles County) were given injunctive relief permanently prohibiting defendants Pitchess and Keays, as sheriff and marshal, respectively, their agents and deputies, and all persons acting in concert with them, from doing or attempting to do any of the following: (1) taking any personal property unless the alleged debtor has first been afforded an opportunity to be heard in a judicial proceeding, upon prior notice duly given, on the merits of said action, and to contest the claimant's right to the possession of such property; (2) entering, for the purpose of searching for and taking any personal property, any private dwelling, that portion of any commercial establishment not open to the public, any private vehicle, or any other location which could not be entered without a search warrant if the entry therein was for the purposes set forth in section 1524, Penal Code, and in fact searching for and taking such property, unless the alleged creditor, and/or defendants Pitchess and Keays, prior to such entry, search or taking establish before a magistrate that there is probable cause to believe that the property is on the premises or in the location, and that the alleged creditor has the right to the immediate possession thereof.

Prior to the rendition of the above judgment, demurrers to the last two of four causes of action set forth in the complaint were sustained without leave to amend; the court, however, required defendants to answer the first two causes of action which are directed against the lack of any provision for proper notice and hearing¹ and ‘the mandate to violence’ (quoting the trial court's memorandum opinion upon overruling the demurrers) found in section 517.² Following the filing of such answer, plaintiffs served interrogatories on each of the defendants. When the answers thereto were filed, plaintiffs successfully moved for summary judgment; the motion was accompanied by certain supporting declarations, although opposed by declarations filed not only by defendants' deputies but by the credit managers of several large retail establishments which use the claim and delivery process to recover property upon the purchaser's default in payment. In addition to the adjudication therein made, the judgment recited that plaintiffs' motion should be granted on the ground that no triable issue of fact was presented and, accordingly, defendants' answer was ordered stricken.

The six declarations supporting the motion include those executed by each of the plaintiffs; the latter are limited to plaintiffs' status as taxpayers and citizens of Los Angeles County, containing no averment that as to them there is, or has been, any actual or threatened resort to the legislation here challenged. The remaining declarations in support of the motion relate to the four declarants' past experiences with either sheriff's or marshal's deputies during the course of execution of the claim and delivery process; in none of such declarations, however, is there any recital that presently, or in the future, will such process be carried out as to any of their personalty so that injunctive relief therefrom becomes necessary. Additionally, if the interrogatories and answers thereto be treated as tantamount to depositions, and it is settled that the latter may properly be considered in support of a motion for summary judgment (Saporta v. Barbagelata, 220 Cal.App.2d 463, 469, 33 Cal.Rptr. 661), we have been directed to no matters therein which tend to indicate that plaintiffs' rights are injuriously affected by the statutes in suit.

At the threshold, therefore, we are confronted with the first of several propositions advanced by defendants and their amici curiae, namely, that absent any actual controversey between the parties involving the legislation in suit, it is improper to render an opinion, essentially advisory in nature, on the constitutionality thereof. “[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, ‘concrete legal issues, presented in actual cases, not abstractions,’ are requisite. This is as true of declaratory judgments as any other field.' [Citation.] * * * In United Public Workers of America v. Mitchell, supra, [330 U.S. 75], at 89–90, 67 S.Ct. [556], at 564, 91 L.Ed. 754, 767, we said: ‘The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.’ The same is true of the power to pass upon the constitutionality of state statutes. No federal court, whether this Court or a district court, has ‘jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ [Citation.]' (Golden v. Zwickler (1969) 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, 117–119.) In California our Supreme Court rather recently adhered to the same view, declaring that ‘The rendering of advisory opinions falls within neither the functions nor jurisdiction of this court.’ (People ex rel. Lynch v. Superior Court, 1 Cal.3d 910, 912, 83 Cal.Rptr. 670, 671, 464 P.2d 126, 127.) There, too, no actual controversy existed; instead, by way of mandamus and at the behest of official personnel who issue and serve writs of attachment, the Attorney General sought advice as to the invalidity, or otherwise, of California's prejudgment attachment procedures. The case has particular bearing here because in Lynch the invalidity of the prejudgment attachment statutes would have been based on the determinations reached in Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, while in the instant proceeding the reasoning of Sniadach is sought to be extended to California's claim and delivery law. Thus, after observing that ‘A prejudgment garnishment of the Wisconsin type is a taking which may impose tremendous hardship on wage earners with families to support,’ citing recent investigations of the problem, the court in Sniadach concluded: ‘The result is that a prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall. Where the taking of one's property is so obvious, it needs no extended argument to conclude that absent notice and a prior hearing * * * this prejudgment garnishment procedure violates the fundamental principles of due process.’ (395 U.S. at p. 341, 89 S.Ct. at p. 1822, 23 L.Ed.2d at pp. 353–354.) Still further bearing on this first point of defendants is the filing of two decisions, the same day that Lynch denied a writ of mandate, in which this state's prejudgment garnishment laws were held to be violative of procedural due process under the rationale of Sniadach. As indicated in Lynch: ‘Those cases deal with actual or threatened prejudgment levies upon the wages of the parties litigant, upon alleged claims of indebtedness.’ (Supra, 1 Cal.3d at p. 911, 83 Cal.Rptr. at p. 671.)

Although it is discussed at some length in defendants' briefs, and in that of one amicus curiae, plaintiffs make no mention at all of Lynch in their extensive arguments defending the present judgment; nor is any cognizance taken by them of several California cases, also cited by defendants, in accord with the rule of Golden v. Zwickler, supra, that constitutional issues will not be decided on the basis of speculation or hypothesis not shown to affect the parties before the court. For example, one such decision has this to say on the point: ‘The possibility of hypothesizing an unconstitutional application of the statute does not save the Company from its actual constitutional operation in the instant case. * * * ‘* * * The situations conjured up by respondent are not here involved, and respondent is limited in his attack to the application of the statute to the factual situation now before the court.’ [Citations.]' (Franklin Life Ins. Co. v. State Board of Equalization, 63 Cal.2d 222, 227, 45 Cal.Rptr. 869, 873, 404 P.2d 477, 481.) True, it was also observed in Franklin Life that in certain circumstances (not there present) courts will also hold a statute unconstitutional on its face without regard to the particular facts of the case. In that regard, the trial court in the present proceeding took the view in the course of argument that the law was unconstitutional on its face—mindful of Sniadach; but although the same argument might properly be made respecting the lack of notice and hearing found in California's prejudgment attachment procedures,³ the court in Lynch declined to take jurisdiction on the grounds there stated.

Plaintiffs nevertheless contend that the trial court correctly took jurisdiction of the instant asserted controversy because the action was instituted in their capacity as taxpayers and citizens. Invoked are the provisions of section 526a, Code of Civil Procedure, declaring in pertinent part that ‘An action to obtain a judgment, restraining and preventing any illegal expenditure of, * * * funds, * * * of a county * * * may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, * * * by a citizen resident therein, * * * who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. * * *’ To support their position plaintiffs rely on three cases: Wirin v. Horrall, 85 Cal.App.2d 497, 193 P.2d 470; Wirin v. Parker, 48 Cal.2d 890, 313 P.2d 844; and Los Angeles County v. Superior Court, 253 Cal.App.2d 670, 62 Cal.Rptr. 435. As will now be shown, however, all three proceedings involve factually different situations. The actions complained of in the Horrall case were the setting up and maintenance of road blocks, while in Parker surveillance was conducted by the Los Angeles Police Department through the use of hidden microphones. In each case the actions were undertaken by the police department on its own initiative, and the defendant was the chief of police, the real party in interest, who thus had the opportunity to litigate the issues therein raised. In the last of the above trio (Los Angeles County v. Superior Court, 253 Cal.App.2d 670, 62 Cal.Rptr. 435), the action was instituted against the sheriff, district attorney and chief of police, all of whom were the real parties in interest. Unlike the situations above pointed out, defendants here (the sheriff and marshal) are not the real parties in interest since they act only ministerially upon the instructions of claim and delivery plaintiffs who pay the fees incident to the performance of such ministerial services. Thus, there has been no illegal expenditure of public funds, the sole contingency which section 526a apparently was enacted to enjoin.

Wholly aside from the foregoing discussion which, we are persuaded, is dispositive of the instant matter, additionally we cannot endorse the trial court's view that no triable issue was presented for determination and, therefore, summary judgment was proper in the circumstances. ‘Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. [Citations.]’ (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788.) As further stated in the above case, ‘Thus, the trial court was justified in granting the motion here only if the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the [plaintiffs] to judgment, and those of the [defendants], liberally construed, show that there was no issue of fact to be tried.’ (P. 417, 42 Cal.Rptr. p. 452, 398 P.2d p. 788.) Although the record reveals that the trial court was primarily concerned with the action of a levying officer breaking down a door in the dead of night, no showing was made by declaration, admission, or answer to interrogatory that such a thing is done or threatened by either defendant or his agents. To the contrary, the record is clear that defendants, through their agents, do not break down doors at night. Furthermore, plaintiffs mistakenly rely on several criminal cases which properly hold that, except in certain carefully defined situations, a search of property is unreasonable unless authorized by a search warrant. For example, Camara v. Municipal Court (1967) 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle (1967) 387 U.S. 541, 18 L.Ed.2d 943, 87 S.Ct. 1737, are authority for the limited proposition that a householder or warehouse owner will not be criminally liable if he refuses to allow a building inspector to enter his premises without a search warrant to search for possible violations of the law; they do not hold that the Fourth Amendment applies to civil matters. To the contrary, it was urged in Williams v. General Elec. Credit Corp., 159 Cal.App.2d 527, 323 P.2d that the act of defendant's agent in entering plaintiff's house to replevy a television set being sold under a conditional sales contract constituted a violation of the Fourth Amendment, although the agreement provided for entry in event of default. ‘This argument,’ said this court, ‘ignores [plaintiff's] implied consent to such entry. A person's right to be free from searches and seizures in his home is subject to his own agreement. [Citation.]’ (P. 533, 323 P.2d p. 1050.) To the same effect is Brunswick Corporation v. J & P, Inc. (10th Cir. 1969) 424 F.2d 100, to which decision reference will be made later. Notwithstanding the above determinations, and although certain of the declarations in opposition to the motion refer to declarant's sales contracts permitting repossession, no provision is made in the present judgment exempting the conditional vendor from the consequences of any repossession thus consented to.

Finally, in light of the present record it cannot be said that as a matter of law the due process requirement of notice and hearing is violated under the Sniadach rationale. We quote from Brunswick Corporation v. J & P, Inc., supra: ‘Furthermore, we find no merit in appellants' additional contention that under the recent Supreme Court case of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) they have been the victims of a taking of property without the procedural due process required by the Fourteenth Amendment. Smadach expressly was a unique case involving, ‘a specialized type of property presenting distinct problems in our economic system.’ That case involved wage garnishment without notice or hearing prior to judgment on a promissory note. It is not in the least comparable to the case here on appeal involving enforcement of a security interest.' (P. 105.)

The judgment is reversed.

FOOTNOTES

1.  Section 512: ‘Upon a receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, approved by the sheriff * * * or marshal receiving such affidavit and notice, to the effect that they are bound to the defendant in double the value of the property as stated in the affidavit for the prosecution of the action, for the return of the property to the defendants, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, such officer must forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. * * *’ (Emphasis added.)

2.  Section 517: ‘If the property, or any part thereof, be in a building or inclosure, the sheriff, constable, or marshal must publicly demand its delivery. If it be not delivered, he must cause the building or inclosure to be broken open, and take the property into his possession; and, if necessary, he may call to his aid the power of his county.’

3.  Section 537, Code of Civil Procedure: ‘The plaintiff, at the time of issuing the summons * * * may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment, as in this chapter provided, in the following cases: * * *.’

LILLIE, Associate Justice.

WOOD, P. J., and THOMPSON, J., concur.