ARRIETA v. MAHON (1981)

Defendant marshal of Los Angeles County appeals a judgment in an action brought by plaintiffs Sarah Arrieta, as an aggrieved tenant and a taxpayer, and David Ginsberg, as a taxpayer, to enjoin and to declare unconstitutional the marshal's practice of evicting all persons occupying premises for which a writ of possession has been issued, whether or not they are named in the writ. We reverse and direct the trial court to dismiss the action.

Arrieta lives in an apartment on Main Street in Los Angeles with her sister and four minor children. Arrieta moved into the apartment in May 1977 with Ernesto Falcon, and alleged that they occupied the premises as co-tenants under an oral lease until November 1978 when Falcon left the country. Arrieta further alleged that she made some or all of the rental payments herself, and that the manager of the premises was aware of her occupancy and co-tenancy.

On 22 January 1979 Milton Avol, the owner of the premises, filed an unlawful detainer action, against Falcon and alleged that service upon him had been accomplished. In February Avol obtained a default judgment against Falcon, and a writ for possession of the premises was subsequently issued and delivered to the marshal for execution. At the time, the marshal's practice in enforcing writs of possession was to evict all occupants of the designated premises. Accordingly, Arrieta, who still resided at the designated premises, was served with a notice to vacate. Upon receipt of the notice, Arrieta moved to stay the execution of the unlawful detainer judgment and to quash and recall the writ of possession and notice to vacate. The motions were denied.

On March 29, the day after Arrieta's motions were denied, Arrieta and Layfield filed this action against Avol and the marshal to (1) declare that the marshal's practice of evicting occupants not named in the unlawful detainer action who claimed a right to possession of the premises, violated the constitutional guarantees to procedural due process and to be free from unreasonable searches and seizures, (2) to enjoin Avol and the marshal from evicting her, and (3) to enjoin the marshal from “expending any public funds in pursuit” of his allegedly unconstitutional practice. Plaintiffs also sought attorneys' fees and costs.

The same day the action was filed, plaintiffs obtained an order for the marshal to show cause why he should not be enjoined when executing writs of possession from evicting any adult who was not named as a judgment debtor in the writ of execution, who was not a party in the unlawful detainer action, and who claimed to have been in possession of the premises when the unlawful detainer action was filed.

After receiving the order to show cause, defendant marshal revised his policy of evicting all persons from the premises designated in the writ, and adopted a new policy of evicting only the party to the unlawful detainer action, his family, and occupants who claimed a right to possession by or through collusion with him which accrued after the commencement of the unlawful detainer action. (See Code Civ.Proc. s 1164, which states that only tenants or subtenants in possession must be named as parties in the unlawful detainer action, and declares that all persons who enter the premises under such tenant or subtenant after the commencement of the unlawful detainer action are bound by it.) The parties then stipulated to, and the court granted, a preliminary injunction consistent with this new policy. However, when stipulating to the issuance of the preliminary injunction, the marshal informed the court that: “(He had) no interest in (the) matter beyond his duty to perform his ministerial duty as required by law,” and that “(in) light of the potential for large amounts of attorneys fees to the plaintiff and the increasing demands caused thereby on scarce public resources, (he) respectfully decline(d) the defense of the statewide statutory scheme, or the contentions that might be raised by landlords or tenants.”

Defendant Avol, when served with the action, directed the marshal not to enforce the unlawful detainer judgment, settled his dispute with Arrieta, and then was dismissed from the case.

With Avol out of the case, and the marshal refusing to take any position in the matter, the matter proceeded to trial, purportedly as a taxpayers' suit. At trial the marshal reiterated that he had “no interest” in the outcome of the action “beyond (his interest in) performing his ministerial duty with regard to such writs as required by law,” and that he was not defending any particular position. Specifically, the marshal again advised the court at the outset, that he would “not litigate the issues before the Court beyond indicating what his procedures (were).”

On 6 December 1979 the trial court entered its judgment. The court concluded that the marshal's practice of removing adult persons not named in the writ of possession who claimed a timely right to possession, constituted an illegal expenditure of funds which could properly be enjoined by plaintiffs Arrieta and Layfield as taxpayers. It then declared that in executing writs of possession issued in unlawful detainer actions, the marshal could not, without further court order, lawfully remove from the premises any adult person not named in the writ who claimed a right to possession accruing prior to the commencement of the action in which the writ was obtained. The eviction of any other adult person, including any adult member of the family of the person named in the writ, the court declared, violated that person's right to procedural due process (U.S.Const., Fourteenth Amend.; Cal.Const., Art. I, s 7(a)) and to be free from unreasonable searches and seizures (U.S.Const., Fourth Amend.; Cal.Const., Art. I, s 13). The trial court also instructed the marshal, in executing such writs, to inquire whether any other occupants of the designated premises claimed a right to possession accruing prior to the commencement of the unlawful detainer action, and noted that the inclusion of a statement in the notice to vacate directing any person who claimed such a right to contact the marshal's office, would suffice. It then added that the marshal had “no legal duty to determine the validity of any claim of right to possession” made by any adult other than the person named in the writ. Finally, the court awarded plaintiffs costs of $3,837.25, which included $3,270 in attorneys' fees awarded under a private attorney general theory. (Civ.Code Proc., s 1021.5.)

On appeal, the marshal candidly admits that his sole purpose (other than to challenge the award of attorneys' fees) in bringing the matter before this court is to obtain a citable precedent delineating a procedure which he can follow in executing writs of possession for premises occupied by parties who are not named in the writ. While we sympathize with the marshal's dilemma, it is not the function of this court to legislate. Nor do we issue advisory opinions. (See People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912, 83 Cal.Rptr. 670, 464 P.2d 126.) In the absence of a true case or controversy, the cause is not justiciable. At bench, the only true controversy that between Arrieta, the tenant faced with eviction, and Avol, her landlord was resolved prior to the commencement of trial. The matter thereafter purportedly proceeded as a suit between taxpayers challenging an allegedly illegal expenditure of funds and a marshal, who flatly refused to take any position in the matter, declining even to defend his own existing practice.

California courts have repeatedly held that Code of Civil Procedure section 526a, which permits a taxpayer to bring an action to challenge an illegal expenditure of funds by the county, is to be liberally construed. Accordingly courts have recognized such actions when the suit is one for declaratory, rather than injunctive, relief (Van Atta v. Scott (1980) 27 Cal.3d 424, 449-450, 166 Cal.Rptr. 149, 613 P.2d 210), when there are persons who are directly affected by the contested expenditure who would also have standing to sue (Van Atta v. Scott, supra, pp. 447-449, 166 Cal.Rptr. 149, 613 P.2d 210), and when the only “illegal expenditure” is the expenditure of the time of a paid government official in performing an illegal or unauthorized act (Wirin v. Horrall (1948) 85 Cal.App.2d 497, 504-505, 193 P.2d 470; Blair v. Pitchess (1971) 5 Cal.3d 258, 268, 96 Cal.Rptr. 42, 486 P.2d 1242; see also, Wirin v. Parker (1957) 48 Cal.2d 890, 894, 313 P.2d 844). Further, it is not necessary for the maintenance of a taxpayers' action that the defendant have a personal interest in the outcome. (Blair v. Pitchess, supra, 5 Cal.3d p. 269, 96 Cal.Rptr. 42, 486 P.2d 1242.) The Supreme Court permitted a taxpayers' suit against county officials where it determined that “the interest of government officials in continuing their programs (was) sufficient to guarantee a spirited opposition.” “In such circumstances,” the court reasoned, “there is no danger that the court will be misled by the failure of the parties adequately to explore and argue the issues.” (Blair v. Pitchess, supra, p. 270, 96 Cal.Rptr. 42, 486 P.2d 1242.) See also, Van Atta v. Scott, supra, 27 Cal.3d p. 450, 166 Cal.Rptr. 149, 613 P.2d 210 defendant chief of police vigorously opposed the plaintiffs' contentions at all stages; Love v. Keays (1971) 6 Cal.3d 339, 98 Cal.Rptr. 811, 491 P.2d 395.)

However, unlike the cases cited above wherein the defendant government officials, at the very least, defended their existing practices, the defendant marshal in the instant action declined to take any position in the matter, including the defense of his existing practice. It is clear that the marshal did not contest any of plaintiffs' allegations and was ready and eager to accept any decision rendered by the trial court. Further, the real parties in interest in the action at bench were the tenants and landlords who might be affected by the outcome of these proceedings. While plaintiffs purportedly represented the interests of tenants, no one in the court below represented the interests of any landlord. The trial in this case was not an adversary proceeding, and no true case or controversy existed then or now. Accordingly,

The judgment is reversed, and the cause is remanded to the trial court with directions to dismiss the action.

FLEMING, Acting Presiding Justice.

COMPTON and BEACH, JJ., concur.