Jordan v. Talbot

• Decision Date: 13 April 1961
• Citation: 361 P.2d 20,12 Cal.Rptr. 488,55 Cal.2d 597,6 A.L.R.3d 161
• Parties: , 361 P.2d 20, 6 A.L.R.3d 161 Virginia JORDAN, Appellant, v. Andrew B. TALBOT, Respondent. S. F. 20578.
• Court: California Supreme Court

Page 488

12 Cal.Rptr. 488

55 Cal.2d 597, 361 P.2d 20, 6 A.L.R.3d 161

Virginia JORDAN, Appellant, v. Andrew B. TALBOT, Respondent.

S. F. 20578.

Supreme Court of California, In Bank.

April 13, 1961.

As Modified on Denial of Rehearing May 10, 1961.

Daniel Kass, San Francisco, for appellant.

Hartly Fleischmann, San Francisco, for respondent.

TRAYNOR, Justice.

Plaintiff was a tenant in defendant's apartment house. The lease provided that the lessor had a right of re-entry upon the breach of any condition in the lease and a lien upon all personal effects, furniture, and baggage in the tenant's apartment to secure the rents and other charges. One of the conditions was the payment of $132.50 rent on the first of each month. Plaintiff paid the rent for eight months. After she was two months in arrears in rent, defendant, without her consent and during her temporary absence, unlocked the door of her apartment, entered and removed her furniture to a warehouse, and refused to allow her to re-occupy the apartment. Thereupon plaintiff filed this action for forcible entry and detainer ¹ and for conversion of her furniture and other personal property.

The jury returned a verdict of $6,500 for forcible entry and detainer and for conversion and $3,000 punitive damages. Plaintiff appeals from an order granting defendant's motion for a new trial. She also purports to appeal from an order granting judgment notwithstanding the verdict, which is but a step preliminary to final judgment and not an appealable order. Schramko v. Saulter, 146 Cal.App.2d 549, 553, 303 P.2d 1061. The appeal from that order will therefore be dismissed. The record does not show that the final judgment has been entered.

The order granting the new trial specifies that it is based solely on the ground of error occurring at the trial. 'In the absence of the specification of insufficiency of the evidence to support the verdict, we are precluded from considering the question whether the evidence was sufficient to sustain the verdict unless it was without conflict and insufficient as a matter of law.' Adams v. American President Lines, 23 Cal.2d 681, 683, 146 P.2d 1, 2.

Defendant contends that there is no evidence that he violated either section 1159 or 1160 of the Code of Civil Procedure and that the evidence is therefore insufficient as a matter of law to sustain a verdict for forcible entry and detainer. He bases this contention on the grounds that (1) his entry was not unlawful, since he had a right of re-entry; (2) he did not violate subdivision 1 of section 1159, since he did not use force to enter the premises; (3) he did not violate subdivision 2 of section 1159, since that subdivision applies only when a stranger to the title obtains a 'scrambling' possession (a possession concurrent with that of the person having a right to possession); (4) he did not violate subdivision 1 of section 1160, since he neither unlawfully nor forcibly detained possession to the apartment; and that (5) in any case his entry was privileged by virtue of his lien on the property in the apartment.

Defendant's Right of Re-entry is not a Defense to an Action for Forcible Entry.

In defining forcible entry section 1159 of the Code of Civil Procedure refers to 'every person,' thereby including owners as well as strangers to the title. Under section 1172 of the Code of Civil Procedure the plaintiff 'shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer. The defendant may show in his defense that he or his ancestors, or those whose interest in such premises he claims, have been in the quiet possession thereof for the space of one whole year together next before the commencement of the proceedings, and that his interest therein is not ended or determined; and such showing is a bar to the proceedings.' Nowhere is it stated that a right of re-entry is a defense to an action for forcible entry or detainer.

Nor can such a defense be implied from the historical background or purpose of the statute. ²

Both before and after the enactment of the present forcible entry and detainer statutes this court held that ownership or right of possession to the property was not a defense to an action for forcible entry. ³ In McCauley v. Weller, 1859, 12 Cal. 500, 524 (decided before the enactment of sections 1159-1179a of the Code of Civil Procedure) and in Voll v. Hollis, 1882, 60 Cal. 569, 573 (decided after the enactment of the foregoing sections) it was held that evidence of defendant's ownership of the land was irrelevant to the question of liability for a forcible entry and detainer. '(T)he action of forcible entry and detainer is a summary proceeding to recover possession of premises forcibly or unlawfully detained. The inquiry in such cases is confined to the actual peaceable possession of the plaintiff and the unlawful or forcible ouster or detention by defendant the object of the law being to prevent the disturbance of the public peace, by the forcible assertion of a private right. Questions of title or right of possession cannot arise; a forcible entry upon the actual possession of plaintiff being proven, he would be entitled to restitution, though the fee-simple title and present right of possession are shown to be in the defendant. The authorities on this point are numerous and uniform.' Voll v. Hollis, supra, 60 Cal. 569, 573; accord: Giddings v. 76 Land and Water Co., 1890, 83 Cal. 96, 100-101, 23 P. 196; Mitchell v. Davis, 1863, 23 Cal. 381, 384, 385; Davis v. Mitchell, 1865, 1 Cal.Unrep. 206, 207-208; Lasserot v. Gamble, 1896, 5 Cal.Unrep. 510, 515, 46 P. 917; Kerr v. O'Keefe, 1903, 138 Cal. 415, 421, 71 P. 447; California Products, Inc. v. Mitchell, 1921, 52 Cal.App. 312, 314, 198 P. 646; Eichhorn v. De La Cantera, 1953, 117 Cal.App.2d 50, 54-55, 255 P.2d 70; Martin v. Cassidy, 1957, 149 Cal.App.2d 106, 110, 307 P.2d 981. ⁴

In Lasserot v. Gamble, supra; Kerr v. O'Keefe, supra; California Products, Inc. v. Mitchell, supra, and Martin v. Cassidy, supra, the landlord entered pursuant to a lease granting him a right of re-entry similar to defendant's right of re-entry in the present case. In each case the court held that absent a voluntary surrender of the premises by the tenant, the landlord could enforce his right of re-entry only by judicial process, not by self-help. Under section 1161 of the Code of Civil Procedure a lessor may summarily obtain possession of his real property within three days. This remedy is a complete answer to any claim that self-help is necessary.

As in the foregoing cases, the lease herein is silent as to the method of enforcing the right of re-entry. In any event a provision in the lease expressly permitting a forcible entry would be void as contrary to the public policy set forth in section 1159. Spencer v. Commercial Co., 30 Wash. 520, 71 P. 53, 55 (involving forcible entry and detainer statutes identical with section 1159); cf. California Products Inc. v. Mitchell, supra, 52 Cal.App. 312, 314-315, 198 P. 646. Regardless of who has the right to possession, orderly procedure and preservation of the peace require that the actual possession shall not be disturbed except by legal process. Defendant was Guilty of Forcible Entry.

Section 1159 Subdivision 1 prohibits an entry by means of breaking open doors or windows. Defendant violated this section when he unlocked plaintiff's apartment without her consent and entered with the storage company employees to remove her furniture, even though there was no physical damage to the premises or actual violence.

It is true that before 1872 several cases held that actual force or violence was a necessary element in an action for forcible entry. Frazier v. Hanlon, 5 Cal. 156, 157-158; Dickinson v. Maguire, 9 Cal. 46, 51; McMinn v. Bliss, 31 Cal. 122, 126-127; Buel v. Frazier, 38 Cal. 693, 696. These cases, however, were decided under a statute different from section 1159. See Cal.Stats.1866, Chapter DL, p. 768. It is also true that some cases subsequent to the adoption of section 1159 have stated that only an entry accompanied by force or violence constitutes a violation of section 1159, subdivision 1. In most of these cases, however, the statements were unnecessary to the decision. In certain cases relief was given either because there was a use of force (Ely v. Yore, 71 Cal. 130, 133, 11 P. 868 (nine persons entered in absence of tenant and removed a fence); Knowles v. Crocker Estate Co., 149 Cal. 278, 283, 86 P. 715 (defendant and his agents entered in absence of occupant and removed a fence)) or because there was a forcible detainer (see Giddings v. 76 Land and Water Co., 83 Cal. 96, 100, 23 P. 196). In other cases where relief was denied, the plaintiff did not have possession of the property (Goldstein v. Webster, 7 Cal.App. 705, 707-709, 95 P. 677), or consented to the entry (Providence Baptist Ass'n v. Los Angeles, etc., Temple, 79 Cal.App.2d 734, 738, 180 P.2d 925). Rarely was relief denied on the ground that the entry was not accompanied by force. See Edwards v. Bodkin, 43 Cal.App. 405, 406, 185 P. 423; compare Baxley v. Western Loan & Bldg. Co., 135 Cal.App. 426, 431, 27 P.2d 387; Moldovan v. Fischer, 149 Cal.App.2d 600, 608, 308 P.2d 844 (where the entries were apparently with the consent of the possessors' manager or employees).

Many other decisions of this court and the district courts of appeal have implied force in an entry made upon land in the possession of another without his consent, despite the absence of either violence or physical damage. Bank of California v. Taaffe, 76 Cal. 626, 630, 18 P. 781 (entry through window in occupant's absence, removal of occupant's furniture and refusal to allow re-entry); White v. Pfieffer, 165 Cal. 740, 742, 134 P. 321 (entry by fraudulent...