Bedi v. McMullan

• Decision Date: 25 September 1984
• Citation: 206 Cal.Rptr. 578,160 Cal.App.3d 272
• Parties: Ranji BEDI et al., Plaintiffs and Appellants, v. Robert J. McMULLAN et al., Defendants and Respondents. B001151.
• Court: California Court of Appeals Court of Appeals

Page 578

206 Cal.Rptr. 578

160 Cal.App.3d 272

Ranji BEDI et al., Plaintiffs and Appellants, v. Robert J. McMULLAN et al., Defendants and Respondents.

B001151.

Court of Appeal, Second District, Division 7, California.

Sept. 25, 1984.

Meller & Snyder, William C. Snyder, Santa Monica, and MacDonald & Fabozzi, Santa Ana, for defendants and respondents.

JOHNSON, Associate Justice.

Plaintiffs appeal from a judgment dismissing their complaint for forcible entry and detainer following the sustaining of defendants' demurrer without leave to amend. We reverse.

FACTS AND PROCEEDING BELOW

For purposes of this appeal we accept as true the properly pleaded factual allegations of the complaint. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746, 167 Cal.Rptr. 70, 614 P.2d 728.) The allegations must be liberally construed with a view to attaining substantial justice among the parties. (Code Civ.Proc., § 452; King v. Central Bank (1977) 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857.) Furthermore, the respondents failed to file a brief. Consequently, we accept the facts stated in appellant's brief as true. (Cal.Rules of Ct. Rule 17 Subd. (b).)

The complaint seeks to impose liability upon landowners, the McMullans, their attorney, his law firm, and his secretary, for forcible entry and detainer of residential property in the peaceful possession of the Bedi family.

The Bedis allege defendant Robert McMullan appeared at their home one morning accompanied by two uniformed deputies of the Los Angeles County Marshal. The deputies knocked on the door and demanded entry. When the door was opened, they and McMullan forcibly entered and demanded the immediate departure of the Bedis. The Bedis left the premises and the McMullans took possession. It is alleged this eviction occurred under color of an invalid writ of execution, the underlying unlawful detainer judgment having been set aside. (Although a subsequent judgment for possession was entered in favor of the McMullans, the writ the marshal executed was not based on this judgment.) The Bedis further allege the defendants knew the unlawful detainer judgment on which the writ was based had been set aside but deliberately concealed this information from the marshal and deceived the marshal into believing he had judicial authority to execute the writ. The marshal was not named as a defendant in the suit.

The defendants demurred to the complaint on the ground it failed to state facts sufficient to constitute a cause of action for forcible entry or detainer. Defendants contended they achieved possession through the judicial process and therefore could not be guilty of forcible entry or detainer.

The trial court held, as a matter of law, a landlord who forcibly enters and takes possession of the tenants' premises under color of a writ of execution is not guilty of forcible entry and detainer even if the writ of execution is invalid.

ISSUE

The sole issue in this appeal is whether the forcible entry and detainer law (Code Civ.Proc., §§ 1159, 1160) applies to a landlord who forcibly enters and detains real property under an invalid writ of execution.

For the reasons set forth below, we have concluded such a landlord is in no better position than any other landlord engaged in forceful self help.

DISCUSSION

A forcible entry occurs when one, "who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession." (Code Civ.Proc., § 1159, para. 2.) A forcible detainer We find no reason why a landlord should not be liable for forcible entry and detainer if he evicts a tenant under color of a void judgment. A default judgment that has been set aside will not support a writ of execution (Stegge v. Wilkerson (1961) 189 Cal.App.2d 1, 5, 10 Cal.Rptr. 867), and it is well settled a party is liable in tort if he executes a void judgment against the property of another. (Kee v. Becker (1942) 54 Cal.App.2d 466, 471, 129 P.2d 159; Lee v. Merchants Collection Assn. (1957) 155 Cal.App.2d 762, 765, 318 P.2d 701.) In addition, state officials were held liable for forcible entry and detainer when they evicted a tenant under color of a void statute. (McCauley v. Weller (1859) 12 Cal. 500, 528.)

                occurs when a person, "[b]y force, or by menace and threats of violence unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise...."  (Code Civ.Proc., § 1160, para. 1.)   The facts alleged in the Bedis' complaint describe a forcible entry and detainer as defined in the statute.  Nevertheless, the trial court believed the forcible entry and detainer law only applies to landlords who engage in self help evictions wholly outside the judicial system.  Because the defendants here at least made an attempt, albeit ineffectual, to use the judicial process to evict the Bedis, the trial court believed they should be shielded from liability for forcible entry and detainer
                

The trial court took the view an eviction by the marshal under color of judicial process is not forcible, by definition. It is certainly true a landlord is not liable for forcible entry and detainer if he evicts a tenant under a valid writ of execution issued under an enforceable judgment. (Hamilton v. Waters (1949) 93 Cal.App.2d 866, 867, 210 P.2d 67.) But, the case at bench presents just the opposite set of facts. It is alleged the eviction was carried out under an invalid writ of execution issued under an unenforceable judgment.

Clearly, an eviction is no less forcible because it is carried out by the marshal instead of by the landlord personally. (See Tri-State Refreshments, Inc. v. Nitke (1964), 41 Misc.2d 386, 246 N.Y.S.2d 79, 83-84.) In the instant case the Bedis were confronted by two uniformed officers who demanded they leave the premises immediately. It is difficult to imagine this did not lead the Bedis to believe they must do as they were told or provoke the officers into using physical force. (Cf. Tri-State Refreshments, supra, 246 N.Y.S.2d at p. 84; Jordan v. Talbot (1961) 55 Cal.2d 597, 607, 12 Cal.Rptr. 488, 361 P.2d 20.) The fact the Bedis bowed to the implicit threat of force posed by the marshal rather than precipitate a showdown in no way undercuts their cause of action for forcible entry and detainer. (Allen v. McMillion (1978) 82 Cal.App.3d 211, 218, 147 Cal.Rptr. 77.) As the Allen case indicates, it would be incongruous in the extreme if a statute intended to prevent landlords from taking the law into their own hands should be interpreted to...