Eichhorn v. De La Cantera

• Decision Date: 27 March 1953
• Citation: 255 P.2d 70,117 Cal.App.2d 50
• Court: California Court of Appeals Court of Appeals
• Parties: EICHHORN v. DE LA CANTERA. Civ. 15200.

Page 70

255 P.2d 70

117 Cal.App.2d 50

EICHHORN v. DE LA CANTERA.

Civ. 15200.

District Court of Appeal, First District, Division 2, California.

March 27, 1953.

Henry J. Kleefisch, San Francisco, for appellant.

Jerome L. Schiller, San Francisco, for respondent.

GOODELL, Justice.

This is an appeal from a judgment in an action for damages for forcible eviction and conversion. The verdict was for $3,300 compensatory, and $500 punitive, damages. A new trial was denied.

Appellant owned a dwelling house at 1379 41st Avenue in San Francisco in which she conducted a carpet cleaning business. In November, 1949, she went on a vacation trip to South America and before leaving entered into an agreement with R. H. Eichhorn, who was then respondent's husband, whereby he was to carry on the business during her absence. As part of this arrangement he was to have the occupancy of the furnished home wherein the business was to be carried on, and the use of appellant's Cadillac.

The Eichhorn family moved into the place with their furniture and personal belongings and lived there for about three months. This litigation arises out of respondent's dispossession on February 21, 1950.

As part of the arrangement the Eichhorns were to keep up the monthly payments of $57.25 principal and interest on the mortgage and to pay the monthly gas and electric and water bills. This was done.

Appellant returned from her trip on January 21, 1950 and on February 7 received the following letter:

'Dear Mrs. Cantera:

'As per our agreement, before your departure to South America, I am relinquishing back to you, your home, 1379-41st Ave., your business, Kelly Carpet Cleaning System, located at 1379-41st Ave., and your Cadillac automobile.

'I wish to thank you sincerely for the opportunity and assistance that you have given to Mrs. Eichhorn and myself.

'Very truly yours,

'R. H. Eichhorn

'426A-24th Ave.

'San Francisco, Calif.'

Eichhorn never thereafter lived at the 41st Avenue home but respondent and her 16-year-old son remained therein.

On February 8 the Eichhorns separated and 9 days later respondent sued for divorce on the grounds of desertion and extreme cruelty. At the time of the trial of this action an interlocutory judgment had been entered in the divorce case.

Although Eichhorn signed the formal relinquishment on February 7, appellant testified that he worked on through March and into April winding up unfinished business.

The evidence shows that on the afternoon on February 21 while respondent was at work and her son at school appellant re-entered the house by forcing the garage doors. Appellant's answer admits that she broke into the house. The evidence also shows that she had arranged for two men to go there that afternoon to move the Eichhorns' furniture from the upstairs living quarters to the basement, which they did, and that she removed the clothing of respondent and her son from the upstairs rooms to a closet in the basement apartment where she hung them up. It shows, further, that on that day when the son returned from school and respondent returned from work they found appellant in possession. Two police officers responded to a call by respondent and their testimony shows that although both appellant and respondent were excited, there was no physical altercation and the officers ruled that it was a civil dispute, not a police problem, and retired. Appellant testified that she told respondent that she and her son could stay that night and occupy an apartment in the basement, while respondent testified that she was told by appellant that she did not care where respondent stayed that night but that it could not be on those premises. Later the same evening respondent's son and son-in-law called and got some clothing and blankets, and respondent and her son stayed that night in her daughter's home, where respondent slept on a mattress on the floor and the son slept on a davenport, which arrangement continued for 2 or 3 weeks until respondent found an apartment.

Appellant's answer alleges that after Eichhorn 'had removed from said premises and had relinquished and restored the same to defendant' the lock on the front door was changed by respondent 'and because defendant was unable to enter, and was prevented from entering said premises by reason of said wrongful and unauthorized change of lock and malicious conduct on the part of plaintiff, it was necessary for her to, and she did, break into her said home and premises, as this defendant had the full right to do, and which act is the act complained of in the plaintiff's complaint.' (Emphasis added.)

This plea in justification of appellant's entry without recourse to legal proceedings is based on the contention, which is appellant's principal point on appeal, that respondent's occupancy was not that of a tenant but merely that of a licensee or even a trespasser.

In this connection it appears without dispute that there was an understanding that the Eichhorns were to pay the $57.25 monthly on the mortgage and the utility bills as well. From this the jury could have concluded that the total of these sums was intended by the parties as monthly rental. In addition to that, appellant wrote Mr. and Mrs. Eichhorn on February 5 saying: 'but as you know the rent on the house at present does not even cover expenses, such as taxes and insurance, much less repairs, etc., where the house really should produce an income of not less than $75.00 per month.' In that letter she called for possession on February 22. Three days later appellant wrote respondent: 'I wish to occupy that house, and unless you and Mr. Eichhorn begin to pay the sum of $150 per month, as of February 15th, it will be necessary for me to secure the house through legal procedure.' On February 13 appellant wrote respondent: 'As for the house, I shall occupy it on the 22nd of February, and you may ask any attorney you desire, and he would advise you that all is required is three days, since there is back rent due from you.'

Respondent testified that 'we were to pay the bank loan as rent. We paid all the utilities.' Appellant testified that these payments were not 'rent', and gave the explanation that when she used the term 'rent' she did so only as a figure of speech.

This evidence pro and con, left the question as one of fact for the jury to decide, and the verdict implies the finding that the payments were rental and hence that the Eichhorns were tenants, not licensees.

But wholly aside from that, it is well settled in this state that an owner cannot forcibly re-enter without having recourse to legal processes. The reason for the rule is that such forcible action tends to a breach of the peace.

As early as 1859 the Supreme Court declared in McCauley v. Weller, 12 Cal. 500, 524 that the object of the forcible entry law was 'to prevent the disturbance of the public peace, by the forcible assertion of a private right.' And the court said, also: 'Questions of title or right of possession cannot arise * * *.' A few years later in Mitchell v. Davis, 23 Cal. 381, 384-385 the court said: 'One great object of the Forcible Entry Act, is to prevent even rightful owners from taking the law into their own hands and attempting to recover, by violence, what the remedial process of a Court would give them in a peaceful mode.' Voll v. Hollis, 60 Cal. 569, 573-574 follows both the McCauley and Mitchell cases. In the early case of Brown v. Perry, 39 Cal. 23, 24, the court said: 'The law prohibits a forcible entry, even by the person entitled to possession, for the reason, among others, that it necessarily tends to a breach of the peace.' (Emphasis added.) See, also, Knowles v. Crocker Estate Co., 149 Cal. 278, 285, 86 P. 715, and discussion in 12 Cal.Jur. p. 595 et seq.

Even in cases where a landlord's right of re-entry in case of default is expressly reserved in a lease, it has been held that he cannot re-entry by force. California Products, Inc. v. Mitchell, 52 Cal.App. 312, 314, 198 P. 646; Calidino Hotel Co. v. Bank of America, 31 Cal.App.2d 295, 306, 87 P.2d 923; Igauye v. Howard, 114 Cal.App.2d 122, 249 P.2d 558.

The absence of the occupant from the premises at the time does not make the entry any the less a forcible entry. Ely v. Yore, 71 Cal. 130, 133, 11 P. 868.

The reason for the rule that a person cannot take the law into his own hands is just as applicable in an action such as this, for damages for forcible eviction, see Gilbert v. Peck, 162 Cal. 54, 59, 121 P. 315, as it is in actions for forcible entry. § 1159, Code Civ.Proc. In both instances the gist of the action is force.

Appellant assigns as error the refusal of the following instruction: 'A licensee on land of another has...