Mihans v. Municipal Court, BERKELEY-ALBANY

Citation87 Cal.Rptr. 17,7 Cal.App.3d 479
Decision Date11 May 1970
Docket NumberBERKELEY-ALBANY
CourtCalifornia Court of Appeals
PartiesMichael MIHANS, Laurel Akers, Chris E. Lee, Eric Manken, and Donna Manken, on their own behalf and on behalf of all others similarly situated, Petitioners, v. MUNICIPAL COURT FOR theJUDICIAL DISTRICT, COUNTY OF ALAMEDA, Respondent. Lorraine FREY and Robert E. Leverette, Real Parties in Interest. Civ. 27931.

Robert Treuhaft, David Nawi, Treuhaft, Walker & Burnstein, Oakland, for petitioners.

Elson & Grogan, Berkeley, for Lorraine Frey, real party in interest.

Jean Fischer, San Francisco, for Robert E. Leverette, real party in interest.

MOLINARI, Presiding Justice.

In this proceeding in which we issued an alternative writ of prohibition, petitioners challenge the constitutionality of Code of Civil Procedure section 1166a, 1 insofar as it authorizes the issuance of a prejudgment writ of immediate possession pending the hearing on the merits in an unlawful detainer action. They contend that such procedure deprives them of property without due process of law and denies them the equal protection of the law.

Petitioners are tenants in possession of certain premises in Berkeley pursuant to oral month-to-month tenancies. On February 6, 1970, real party in interest, Robert E. Leverette, filed a verified complaint in unlawful detainer in respondent Municipal Court (action No. 26273) seeking restitution of the premises occupied by petitioner Chris S. Lee because of the nonpayment of rent. A similar action (No. 26274) was filed by Leverette against Eric Manken and Donna Manken. Pursuant to said complaints Leverette also sought to recover against said petitioners a money judgment for rent, treble damages for unlawful detention, and attorney fees. 2

Attached to these complaints was a notice of motion for a writ of immediate possession pursuant to section 1166a. Said notice stated that on the day noticed for the hearing of said motion plaintiff would move for a writ of possession on the ground that defendants have no property that is subject to execution sufficient to satisfy the amount of damages sought to be recovered by plaintiff. The hearing on this motion was stayed by the Superior Court of Alameda County pursuant to its alternative writ of prohibition and writ of review directed to respondent Municipal Court. Following argument on the legal issues as to whether section 1166a constitutes a taking of property from petitioners without due process of law and discriminates against persons without property so as to amount to a denial of the equal protection of the laws, the superior court denied the petition for a peremptory writ of prohibition, discharged the alternative writ, and vacated the order staying the hearing upon the notice for a writ of immediate possession. We thereupon issued an alternative writ of prohibition which ordered Leverette and the respondent court to desist and refrain from any further proceedings based on the motions for immediate possession pending our determination as to whether a peremptory writ of prohibition should issue.

We observe here that although an appeal lies from an order denying a petition for a writ of prohibition (see § 904.1), the question whether a petitioner has an adequate remedy by appeal is one for the court entertaining the application primarily to decide. (Mallarino v. Superior Court, 115 Cal.App.2d 781, 785, 252 P.2d 993.) Since prohibition lies to restrain the issuance of court orders based on unconstitutional statutes (Rescue Army v. Municipal Court, 28 Cal.2d 460, 462--463, 171 P.2d 8; Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481, 483, 171 P.2d 21), and in view of the summary nature of the proceedings provided in section 1166a, we decide that an appeal is not a speedy or adequate remedy by which to determine the important constitutional issues presented by the instant petition and the response thereto.

At the outset we note that the constitutional challenge is only to section 1166a, and then only to certain provisions thereof. Section 1166a, in its entirety, reads as follows: 'Upon filing the complaint the plaintiff may, upon motion, have immediate possession of the premises by a writ of possession issued by the court and directed to the sheriff of the county, or constable or marshal, for execution, where it appears to the satisfaction of the court, after a hearing on the motion, from the verified complaint and from any affidavits filed or oral testimony given by or on behalf of the parties, that the defendant is insolvent, or has no property that is subject to execution sufficient to satisfy the amount of damages sought to be recovered by the plaintiff, or resides out of the state, or has departed from the state, or cannot, after due diligence be found within the state, or conceals himself to avoid the service of summons. Written notice of the hearing on the motion must be served on the defendant by the plaintiff in accordance with the provisions of Section 1011, and must inform the defendant that he may file affidavits on his behalf with the court and may appear and present testimony on his behalf, and that if he fails to appear the plaintiff will apply to the court for the writ of possession. The plaintiff shall file an undertaking with good and sufficient sureties, to be approved by the judge, in such sum as shall be fixed and determined by said judge, to the effect that if the plaintiff shall fail to recover judgment against the defendant for the possession of said premises, or if the suit be dismissed, that plaintiff will pay to defendant such damages, not to exceed the amount fixed in said undertaking, as may be sustained by the defendant by reason of such dispossession under said writ of possession. An action to recover such damages shall be commenced by the defendant in a court of competent jurisdiction within one year from the date of entry of dismissal or of final judgment in favor of the defendant.'

Petitioners' claim of unconstitutionality is directed to that portion of section 1166a which provides that the plaintiff may have immediate possession of the premises by a writ of possession where it appears to the satisfaction of the court upon the proof adduced as provided in the section 'that the defendant is insolvent, or has no property that is subject to execution sufficient to satisfy the amount of damages sought to be recovered by the plaintiff, * * *' Petitioners argue that by permitting eviction of the defendant-tenant upon this showing even before trial of the unlawful detainer action on the merits deprives them of property without due process of law. In response to this contention real party in interest urges that petitioners have no property interests of any kind which they could be deprived of without due process because of their failure to pay rent.

The right of a tenant to the continued use of his rented property is a substantial and valuable right and until it has been judicially determined that such right has been forfeited because of the failure to meet certain conditions in the rental agreement, such as the obligation to pay rent, the right is entitled to judicial protection. (See Mendoza v. Small Claims Court, 49 Cal.2d 668, 672, 321 P.2d 9.) As stated in Mendoza, quoting from Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 12, 41 N.E. 263, 265, "The right to retain property already in possession is as sacred as the right to recover it, when dispossessed." (49 Cal.2d p. 672, 321 P.2d p. 12.)

Adverting to due process, we observe that the essence of this concept is fair play. (Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911.) Implicit in the notion of fairness and central to our legal and social system is the idea that if the interest being defended is of value, the defendant ought to have his 'day in court' and the opportunity to be heard. (See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865.) Accordingly, the highest courts of this land have dealt over and over again with the question of what constitutes the 'right to be heard' within the meaning of procedural due process. Recently, prejudgment wage garnishment statutes have been overturned by both the United States and the California Supreme Courts on due process grounds upon the basis that such garnishment without notice or hearing violates the fundamental principles of due process. (Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; McCallop v. Carberry, 1 Cal.3d 903, 904, 83 Cal.Rptr. 666, 464 P.2d 122.) The thrust of these decisions is that such garnishment statutes violate due process because they provide for the taking of property prior to the hearing upon the merits of the plaintiff's claim against the defendant and afford the sole opportunity to be heard After the taking.

In the light of the foregoing principles applicable to procedural due process we proceed to consider the constitutional sufficiency of the subject statute. In order to place the analysis of the questions presented in proper focus it is expedient that we set out, in brief, the procedures provided for in the California unlawful detainer statutes. The basic statute is section 1161 which specifies when a tenant is guilty of unlawful detainer. Among these specifications is possession after a default in the payment of rent. In the latter instance the statute provides for the service of a threeday notice upon the tenant to either pay rent or surrender possession of the property. (§ 1161, subd. 2; § 1162.) If the rent is not paid or the possession of the premises is not surrendered within the time specified in the notice, the landlord may bring an unlawful detainer setting forth the facts upon which he seeks to recover the possession of the premises. (§ 1166.) After the tenant is served with the summons and complaint the tenant has three days in which to file a pleading (§ 1167)...

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