Blair v. Pitchess

• Citation: 486 P.2d 1242,5 Cal.3d 258,96 Cal.Rptr. 42
• Court: United States State Supreme Court (California)
• Decision Date: 01 July 1971
• Parties: , 486 P.2d 1242, 45 A.L.R.3d 1206 Cleve BLAIR et al., Plaintiffs and Respondents, v. Peter PITCHESS, as Sheriff etc., et al., Defendants and Appellants. L.A. 29848. In Bank

Page 42

96 Cal.Rptr. 42

5 Cal.3d 258, 486 P.2d 1242, 45 A.L.R.3d 1206

Cleve BLAIR et al., Plaintiffs and Respondents, v. Peter PITCHESS, as Sheriff etc., et al., Defendants and Appellants.

L.A. 29848.

Supreme Court of California,

In Bank.

July 1, 1971.

John D. Maharg, County Counsel, and Robert C. Lynch, Asst. County Counsel, for defendant and appellants.

Gibson, Dunn & Crutcher, John L. Endicott, Los Angeles, Leland, Hoffman, Kalik & Goldstein, N. Stanley Leland, Beverly Hills, Robert D. Raven, Paul E. Homrighausen, Morrison, Foerster, Holloway, Clinton & Clark, Severson, Werson, Berke & Melchior, James B. Werson, San Francisco, Bernardus J. Smit, Styskal, Wiese & Colman, Alvin O. Wiese, Jr., North Hollywood, O'Melveny & Myers, Homer I. Mitchell, Girard E. Boudreau, Jr., Los Angeles, Stanley M. Williams, Ross L. Malone, James M. Conners, San Francisco, and Vernon D. Stokes as amici curiae on behalf of defendants and appellants.

Charles E. Jones, Michael Henry Shapiro, Stanton J. Price and Ronald L. Sievers and William T. Tintala, Los Angeles, for plaintiffs and respondents.

SULLIVAN, Justice.

In this case we are called upon to determine whether California's claim and delivery law (Code Civ.Proc., §§ 509--521) ¹ violates the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and sections 13 and 19 of article I of the Constitution of the State of California.

Originally enacted in 1872, the claim and delivery law establishes a procedure by which the 'plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer' require the sheriff, constable or marshal or a county to take the property from the defendant. (§§ 509, 511.) To initiate the procedure, the plaintiff must file his complaint, obtain the issuance of a summons, and file an affidavit stating that he owns or is entitled to possession of the property, that the defendant is wrongfully detaining the property and that the property has not been taken for a tax, assessment or fine, or been seized under an attachment or execution. The affidavit must also set forth the alleged cause of the wrongful detention of the property and the actual value of the property. (§ 510.) In addition, the plaintiff must file an undertaking of two or more sufficient sureties for double the value of the property. (§ 512.)

The defendant may except to the plaintiff's sureties (§ 513) or require return of the property by filing an undertaking similar to that required of the plaintiff. (§§ 514, 515.) After the sheriff seizes the property, he must deliver it to the plaintiff upon payment of his fees and necessary expenses (§§ 518, 521), and he must file the undertaking, affidavit and other relevant documents with the clerk of the court in which the action is pending (§ 520). Finally if the property is within a building or inclosure the sheriff must publicly demand its delivery, and if it is not voluntarily 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.' (§ 517.)

Plaintiffs, who are residents and taxpayers of the County of Los Angeles, ² brought this action against the county and its sheriff, marshal, and deputy sheriff, and against the constable of the Malibu Justice Court to secure an injunction restraining defendants from executing the provisions of the claim and delivery law. Plaintiffs contend that the claim and delivery law is unconstitutional and that, by expending the time of county officials in executing its provisions, defendants are illegally expending county funds.

After defendants had filed an answer to plaintiffs' first amended complaint ³ and had responded to plaintiffs' interrogatories and requests for admissions, plaintiffs moved for summary judgment, and, in support of their motion, filed two declarations showing that they are residents and taxpayers of the County of Los Angeles. (See fn. 2, Ante.) In opposition to the motion, defendants filed 11 declarations of county officials and employees of retail credit merchants. These declarations and the answers to interrogatories and requests for admissions establish the facts set forth below.

When a plaintiff files claim and delivery papers with the county sheriff's or marshal's departments, the clerical personnel of the department process the documents and check whether they comply with the statutory requirements. After a proper undertaking has been filed and the appropriate fees have been paid, the claim and delivery process is given to an officer for execution.

Upon arrival at the location designated in the process, the officer executing it informs the persons present that he is an officer of the court and has come to seize certain property at that location. If the defendant is present, the officer serves him with the summons and complaint. The officer then demands permission to enter and remove the designated items; in most cases, permission is given. After proper identification of the property, it is taken from the premises by a professional mover or other qualified person. If no one is present when the process is executed, a copy of the process is posted on the premises and another copy is mailed to the defendant.

Claim and delivery process is executed only during normal business hours except when no one is present at the location during those hours. Entry is normally achieved by gaining consent of those present; only on rare occasions do officials enter through open windows or use a locksmith to open the door. No force is used by the officials except when necessary to overcome the physical resistance of an occupant of the premises.

The fees charged for executing the process include a mileage fee of 70cents per mile and a flat service charge of $5 for each seizure of property. In addition, fees are charged for the expenses of moving and storing the property and for the costs of any locksmiths or keepers employed. Except for keepers' charges, all fees are paid to the county treasurer. Of the $5 service fee, $3 is paid into the county general fund and $2 into the county property tax reduction fund.

The declarations of employees of retail credit merchants show that such firms make their credit sales on the basis of form contracts which contain provisions purporting to give the seller authority, with or without legal process, to enter and repossess the property upon default. These declarations also reveal that the firms use claim and delivery process only as a last resort after having failed to collect the debt by other means including form notices, telephone calls, personal letters and visits, and negotiations.

After considering the declarations, the points and authorities and arguments of counsel, the trial court granted plaintiffs' motion for summary judgment. Judgment was entered in favor of plaintiffs and the court issued a permanent injunction restraining defendants and their employees from (1) taking any personal property under color of claim and delivery law unless the defendant is first given a hearing on the merits of the case, and (2) entering any private place to search for and seize any personal property under color of claim and delivery law unless prior thereto probable cause is established before a magistrate. Defendants appeal from the judgment.

We first consider defendants' contention that plaintiffs had no standing to maintain the action and that consequently the trial court's judgment was advisory in nature. As we noted above, plaintiffs bring their suit under section 526a, which authorizes actions by a resident taxpayer against officers of a county, town, city, or city and county to obtain an injunction restraining and preventing the illegal expenditure of public funds. ⁴ The primary purpose of this statute, originally enacted in 1909, is to 'enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.' (Comment, Taxpayers' Suits: A Survey and Summary (1960) 69 Yale L.J. 895, 904.)

California courts have consistently construed section 526a liberally to achieve this remedial purpose. Upholding the issuance of an injunction, we have declared that it 'is immaterial that the amount of the illegal expenditures is small or that the illegal procedures actually permit a saving of tax funds.' (Wirin v. Parker (1957) 48 Cal.2d 890, 894, 313 P.2d 844, 846.) Nor have we required that the unlawfully spent funds come from tax revenues; they may be derived from the operation of a public utility or from gas revenues. (Mines v. Del Valle (1927) 201 Cal. 273, 279--280, 257 P. 530; Trickey v. City of Long Beach (1951) 101 Cal.App.2d 871, 881, 226 P.2d 694.) A unanimous court in Wirin v. Horrall (1948) 85 Cal.App.2d 497, 504--505, 193 P.2d 470, 474, held that the mere 'expending (of) the time of the paid police officers of the city of Los Angeles in performing illegal and unauthorized acts' constituted an unlawful use of funds which could be enjoined under section 526a. (See also Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961.)

We have even extended section 526a to include actions brought by nonresident taxpayers (Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 18--20, 51 Cal.Rptr. 881, 415 P.2d 769). In Crowe v. Boyle (1920) 184 Cal. 117, 152, 193 P. 111, 125, we stated: 'In this state we have been very liberal in the application of the rule permitting taxpayers to bring a suit to prevent the illegal conduct of city officials, and no showing of special damage to a particular taxpayer has been held necessary.'

Moreover, we have not limited suits under section 526a to challenges of policies or ordinances adopted by the county, city or town. If county, town or city officials implement a state statute or even the provisions...