ARRIETA v. MAHON (1981)

Defendant marshal of Los Angeles County appeals a judgment in an action brought by Sarah Arrieta, an aggrieved occupant of premises and a taxpayer, and Douglas Layfield, a taxpayer, to enjoin and 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 individually named in the writ. Initially, we reversed the cause as moot and as not constituting a true case of controversy. Pursuant to a subsequent order of the Supreme Court we now consider the matter on its merits.

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

On 22 January 1979 Milton Avol, the owner of the premises, filed an unlawful detainer action in municipal court against Falcon, alleging two months' unpaid rent and service upon Falcon on January 2 of a Notice to Pay Rent or Quit. On February 28 Avol obtained a default judgment against Falcon for possession of the premises. On March 21 a writ for possession of the premises was issued and delivered to the marshal for execution. At the time the marshal's practice in enforcing writs of possession was to serve all occupants of the designated premises with a Notice to Vacate. Accordingly, Arrieta, who still resided with her relatives on the designated premises, was served with a 5-day Notice to Vacate. Seven days later on March 28 Arrieta moved in municipal court to stay execution of the unlawful detainer judgment, to quash and recall the writ of possession and the notice to vacate, and to vacate the judgment. The municipal court denied her motions.

On March 29, the day after the denial of Arrieta's motions by the municipal court, Arrieta and Ginsberg (later replaced by Layfield) filed this action in the superior court against Avol and the marshal, (1) to declare that the marshal's practice of serving notices of eviction upon and evicting occupants not named in an unlawful detainer action who claimed a right to possession of the premises, violated the constitutional guarantees of procedural due process and of freedom 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 from the superior court for the marshal to show cause why he should not be enjoined when executing a writ of possession from evicting an adult who is not named as a judgment debtor in the writ of execution, who is not a party to the unlawful detainer action, and who claims 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 premises designated in a writ of possession, and adopted a new policy of evicting only the party to the unlawful detainer action, his family, and occupants who claimed a right of possession by or through him after the commencement of the unlawful detainer action. 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 superior court action, directed the marshal not to enforce the unlawful detainer judgment, settled his dispute with Arrieta, and secured his dismissal from the cause.

With Avol out of the controversy and the marshal's refusal to take any position, the cause proceeded to trial in the superior court, purportedly as a taxpayer's suit. At the outset of the 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 advised the court that he would “not litigate the issues before the Court beyond indicating what his procedures (were).”

On 6 December 1979 the trial court entered judgment. The court concluded that the marshal's practice of removing adults not named in the writ of possession who claimed a 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 in unlawful detainer actions, the marshal could not, without further court order, lawfully remove from the premises any adult not named in the writ who claimed a right to possession accruing prior to the commencement of the action. The eviction of any such adult, including adult members of the family of the person named in the writ, declared the court, 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 to inquire when executing such writs whether any occupant of the designated premises claimed a right to possession accruing prior to the commencement of the unlawful detainer action; inclusion of a statement in the notice to vacate that any person claiming such a right should contact the marshal's office would suffice. The court declared 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, which included $3,270 in attorneys' fees under a private attorney general theory. (Civ.Code Proc., s 1021.5.)

I

Code of Civil Procedure section 1164 provides in pertinent part that “(n)o person other than the tenant of the premises and subtenant, if there be one, in the actual occupation of the premises when the complaint is filed, need be made parties defendant in the (unlawful detainer) proceeding All persons who enter the premises under the tenant, after the commencement of the suit, shall be bound by the judgment, the same as if he or they had been made party to the action.” Accordingly, plaintiffs do not challenge the marshal's practice of removing from the premises the person named as a defendant in the unlawful detainer action in which the writ is issued and any person who entered the premises under the named defendant after the commencement of the action. Rather they allege that Arrieta's right to procedural due process was violated by the marshal's “threatened eviction” of her and her relatives because she had a right to possession of the Main Street apartment which existed prior to the commencement of the unlawful detainer action and which arose independently of Falcon's right to possession.

In our view, regardless of the factual merits of Arrieta's claim of oral tenancy, the contention that she was denied due process of law is without substance. It is undisputed that Arrieta was served with a Notice to Vacate, that she made a motion in the municipal court to vacate the judgment and to stay, quash, or recall the writ by reason of the existence of her oral tenancy, that the municipal court heard the matter and denied her motion. Arrieta had a further legal remedy by way of appeal from the municipal court's denial of her motion and by application for an appropriate writ. (Pacific States Savings, etc. Co. v. Harwell (1928) 204 Cal. 370, 268 P. 341.) Instead of pursuing her legal rights, she chose to attack the marshal's general practice of executing writs of possession by filing the action at bench. In our view Arrieta had sufficient notice of the landlord's claim of a right to possess the premises because of non-payment of rent, and sufficient access to the courts to contest that claim, to satisfy the requirement of due process of law. We think the filing of a separate action to challenge the marshal's general practice in executing writs of possession was neither necessary nor proper to vindicate her right to due process of law in the unlawful detainer proceeding, a right which she was in the process of exercising.

II

Prior to the commencement of trial the marshal abandoned his practice of evicting all occupants of premises designated in a writ of possession and adopted a practice of evicting only the named defendant, his family, and any person who claimed a right to possession by or through the named defendant who entered the premises after the commencement of the unlawful detainer action. We see nothing inherently unconstitutional in the marshal's prior practice of evicting adult relatives and friends of a named tenant who has been adjudicated to be detaining premises unlawfully. While we agree that conceivably it might be better procedure for the legislature to require all adult occupants of premises to be named as defendants in an unlawful detainer action, application of such a requirement to summary actions for possession of premises occupied by shifting or floating populations under oral tenancies at will presents genuine difficulties of identification and service of process. The proper balance between the competing interests of landlords and tenants in such instances can best be struck by the legislature. (See Code Civ.Proc., ss 1161, 1164, 1174, 387, 388, 389, 389.5.) This is particularly true in situations as at bench, where on the marshal's refusal to defend and Avol's departure from the cause the controversy became a classic example of sweetheart litigation with important interests unrepresented and unheard. In the absence of a genuine adversarial case or controversy we think the cause should have been dismissed. (See People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912, 83 Cal.Rptr. 670, 464 P.2d 126.)

The judgment is reversed, and the trial court is directed to dismiss the action.

FLEMING, Associate Justice.

ROTH, P. J., and BEACH, J., concur.