Gray v. Whitmore

• Decision Date: 23 April 1971
• Citation: 17 Cal.App.3d 1,94 Cal.Rptr. 904
• Court: California Court of Appeals Court of Appeals
• Parties: Robert T. GRAY and Dorothea Gray, on behalf of themselves and all others similarly situated, Plaintiffs and Appellants, v. Earl B. WHITMORE, Sheriff of San Mateo County, Kogelschatz Korp., dba Key Property Management, Defendants and Respondents. Cecile DIONIO, individually and on behalf of all other persons similarly situated, Plaintiff and Appellant, v. Matthew C. CARBERRY, Sheriff of the City and County of San Francisco, his employees, agents, servants and all persons in concert with him, Owen Mears, his employees, agents, servants and all persons in active concert with him, Defendants and Respondents. Olga BRYSON, individually and on behalf of all others similarly situated, Petitioner, v. Matthew C. CARBERRY, Sheriff of the City and County of San Francisco, Respondent, Joseph MOALEM, Real Party in Interest. Civ. 27565, 28540 and 28319.

Page 904

94 Cal.Rptr. 904

17 Cal.App.3d 1

Robert T. GRAY and Dorothea Gray, on behalf of themselves and all others similarly situated, Plaintiffs and Appellants, v. Earl B. WHITMORE, Sheriff of San Mateo County, Kogelschatz Korp., dba Key Property Management, Defendants and Respondents.

Cecile DIONIO, individually and on behalf of all other persons similarly situated, Plaintiff and Appellant, v. Matthew C. CARBERRY, Sheriff of the City and County of San Francisco, his employees, agents, servants and all persons in concert with him, Owen Mears, his employees, agents, servants and all persons in active concert with him, Defendants and Respondents.

Olga BRYSON, individually and on behalf of all others similarly situated, Petitioner, v. Matthew C. CARBERRY, Sheriff of the City and County of San Francisco, Respondent, Joseph MOALEM, Real Party in Interest.

Civ. 27565, 28540 and 28319.

Court of Appeal, First District, Division 1, California.

April 23, 1971.

Hearing Denied June 17, 1971.

Bruce A. Bailey, Redwood City, Cecil L. McGriff, Jeffrey D. Jennings, Jay-Allen Eisen, Menlo Park, for Robert and Dorothea Gray and others.

Keith C. Sorenson, Dist. Atty. by Jerome F. Coleman, Deputy Dist. Atty., Redwood City, for Earl B. Whitmore and others.

Daniel N. Loeb, Sidney M. Wolinsky, Armando Menocal, III, Norman Mayfach, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, for Cecile Dionio.

James C. Purcell, San Francisco, for Matthew C. Carberry, Sheriff, and his employees, agents, servants and all persons in concert with him.

Norman S. Mayfach, Armando M. Menocal, III, San Francisco, for Olga Bryson.

Warren Sullivan, San Francisco, for real party in interest.

MOLINARI, Presiding Justice.

The proceedings before this court involve three separate causes which have been consolidated for determination because they present common questions of law. In Gray v. Whitmore (1 Civ. 27565) and in Dionio v. Carberry (1 Civ. 28540) the respective plaintiffs appeal from an order denying them a preliminary injunction and a peremptory writ of mandate. In Bryson v. Carberry (1 Civ. 28319) a petition for a writ of mandate was filed in this court and we issued an alternative writ of mandate.

Statement of the Cases

Gray v. Whitmore

Plaintiffs were evicted from their Redwood City apartment pursuant to an unlawful detainer action. Pursuant to a writ of possession defendant sheriff seized plaintiffs' furniture and sundry personal effects remaining on the premises and delivered them to the owner of the premises for safekeeping pursuant to Code of Civil Procedure section 1174. ¹ Plaintiffs thereupon filed with defendant sheriff a claim of exemption pursuant to Code of Civil Procedure section 690.26. ² The sheriff refused to accept or act upon such claim and the instant action was instituted whereby, pursuant to a petition for a writ of mandate, prohibitive injunction, and declaratory relief, plaintiffs, on their own behalf and on behalf of all those similarly situated, sought to compel the sheriff to accept and honor their claim of exemption, to have section 1174 of the Code of Civil Procedure ³ declared unconstitutional, and to prevent the sheriff from distraining and selling their property. Following a hearing, the trial court denied the preliminary injunction, discharged the alternative writ of mandate it had previously issued, terminated a temporary stay of execution, and dismissed the complaint.

Dionio v. Carberry

The facts are essentially similar to those in Gray v. Whitmore and arise out of the eviction of plaintiff from her San Francisco apartment. In this case the court below denied plaintiff's petition for a peremptory writ of mandate and preliminary injunction, dissolved the temporary restraining order, and discharged the order to show cause.

Bryson v. Carberry

The facts are essentially similar to those in Gray v. Whitmore and arise out of the eviction of plaintiff from her San Francisco apartment. Plaintiff sought by petition for writ of mandate filed in this court to compel respondent sheriff to accept and process her claimed exemption and for an injunction against the landlord, the real party in interest, directing him to release the subject property and prohibiting him from selling such property. We issued an alternative writ of mandate directing the sheriff to show cause why we should not issue a peremptory writ compelling him to accept and process petitioner's claim of exemption and of those similarly situated and directing the real party in interest to show cause why he should not release to petitioner the subject personal property.

Contentions

Plaintiffs Dionio and Gray and petitioner Bryson contend that the subject property is exempt from execution under the provisions of section 690, and that they are entitled to avail themselves of the execution rights under the provisions of section 690.26. They contend, alternatively, that section 1174 is repugnant to the equal protection clauses of the federal and California Constitutions. Bryson and Gray also contend, alternatively, that section 1174 is repugnant to the due process clauses of the federal and California Constitutions. Respondents, in turn, assert that section 1174 is constitutional, and, on their part, question the propriety of the class actions here involved. Insofar as the respective sheriffs are concerned, they contend that they are not obliged under the statute to accept and process any claim of exemption and that their responsibility and official function ceased and terminated when they restored the respective landlords to possession and delivered the property remaining on the premises to them.

Code of Civil Procedure Section 1174

The provisions of section 1174, as amended in 1968, ⁴ which are pertinent to our discussion read as follows:

'A plaintiff having obtained a writ of restitution of the premises pursuant to an action for unlawful detainer, shall be entitled to have the premises restored to him by officers charged with the enforcement of such writs. * * * If the tenant does not vacate the premises within five days from the date of service (of the writ), or, if the copy of the writ is posted, within five days from the date of mailing of the additional notice, the enforcing officer shall remove the tenant from the premises and place the plaintiff in possession thereof. * * * ( ) All goods, chattels or personal property of the tenant remaining on the premises at the time of its restitution to the plaintiff shall be stored by the plaintiff in a place of safekeeping for a period of 30 days and may be redeemed by the tenant upon payment of reasonable costs incurred by the plaintiff in providing such storage and the judgment rendered in favor of plaintiff, including costs. Plaintiff may, if he so elects, store such goods, chattels or personal property of the tenant on the premises, and the costs of storage in such case shall be the fair rental value of the premises for the term of storage. An inventory shall be made of all goods, chattels or personal property left on the premises prior to its removal and storage or storage on the premises. Such inventory shall either be made by the enforcing officer or shall be verified in writing by him. The enforcing officer shall be entitled to his costs in preparing or verifying such inventory. ( ) In the event the property so held is not removed within 30 days, such property shall be deemed abandoned and may be sold at a public sale by competitive bidding, to be held at the place where the property is stored, after notice of the time and place for such sale has been given at least five days before the date of such sale by publication once in a newspaper of general circulation published in the county in which the sale is to be held. Notice of the public sale may not be given more than five days prior to the expiration of the 30 days during which the property is to be held in storage. All money realized from the sale of such personal property shall be used to pay the costs of the plaintiff in storing and selling such property, and any balance thereof shall be applied in payment of plaintiff's judgment, including costs. Any remaining balance shall be returned to the defendant.'

The foregoing amendment to section 1174 evinces the latest attempt of the Legislature to solve the troublesome problem of what should be done with the tenant's property remaining on the premises restored to a landlord through unlawful detainer proceedings. Prior to 1967, upon a judgment of restitution being issued, the enforcing officer served the writ on the tenant who had five days to vacate. If the tenant did not do so the enforcing officer was authorized to move the tenant and his furniture and possessions out of the premises. (See Lee Chuck v. Quan Wo Chong Co., 81 Cal. 222, 229, 22 P. 594; Conniff v. Superior Court, 90 Cal.App. 169, 175, 265 P. 555.) The statute was silent as to where the tenant's property would come to rest once it had been removed from the premises. Presumably the enforcing officer could put the property out on the street or sidewalk. If he did so he might be in violation of the laws of jurisdictions which prohibited the storage or placing of personalty on sidewalks or ground adjacent thereto; and even in those jurisdictions where there was no such ordinance, such deposit could interfere with traffic on public thoroughfares, it could pose a hazard to innocent third persons, and it could interfere with the property rights of third persons. (See 22 Ops.Cal.Atty.Gen. 172, 173.) Moreover, such deposit could result in loss of such property by theft or the action of the elements. Accordingly, the enforcing officer was left to his own devices or he could rely upon the advice of the Attorney General's opinion which stated that public policy authorized the enforcing officer to remove the property to a place of safekeeping. (22 Ops.Cal.Atty.Gen., supra.) In that same opinion, statutes (§ 1034 1/2 an...