Reynolds v. Lerman

• Decision Date: 20 January 1956
• Citation: 138 Cal.App.2d 586,292 P.2d 559
• Parties: Glen REYNOLDS, Individually, and Glen Reynolds, doing business under the fictitious firm name of American Manufacturing and Supply Company, Plaintiffs and Respondents, v. Edward LERMAN, E. W. Biscailuz, et al., Defendants. E. W. Biscailuz, Appellant. Civ. 20973.
• Court: California Court of Appeals

Page 559

292 P.2d 559

138 Cal.App.2d 586

Glen REYNOLDS, Individually, and Glen Reynolds, doing business under the fictitious firm name of American Manufacturing and Supply Company, Plaintiffs and Respondents, v.Edward LERMAN, E. W. Biscailuz, et al., DefendantsE. W. Biscailuz, Appellant.

Civ. 20973.

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

Jan. 20, 1956.

Harold W. Kennedy, County, Counsel, Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for appellant.

Samuel W. Blum, Los Angeles, amicus curiae on behalf of respondents.

ASHBURN, Justice

DefendantEugene W. Biscailuz, as sheriff of Los Angeles County, appeals upon the judgment roll from a judgment for $1,500 in favor of plaintiffGlen Reynolds, based upon failure to 'safely keep' certain personalty upon which the sheriff had levied an attachment.That writ had issued out of the municipal court in an action for rent brought by Edward Lerman, as landlord, against his tenant Glen Reynolds under an existing lease.Acting under instructions from Lerman the sheriff seized the personal property in Reynolds' place of business, placed a keeper in charge and later stored the property with Republic Van and Storage Company; this company was selected by the sheriff and found by the court to be his agent.Lerman, as plaintiff, met all demands of the sheriff for fees and deposits; the warehouse company, after notice to the sheriff, but without notice to Reynolds or consent or permission of Lerman and without the authority of any court order, sold the property for nonpayment of warehouse charges which then amounted to $885.80; the Storage Company bid in the property for $75.

Reynolds, the owner of the attached property, sued Lerman and the sheriff for damages for conversion; the complaint (first amended) does not mention negligence; it seeks both compensatory and punitive damages.The court found that in failing to 'safely keep' the property the sheriff was negligent; that the owner (plaintiff herein) had lost all the attached property to his damage in the sum of $1,500, the value placed thereon by the trial judge.That sum was awarded against the sheriff but judgment ran in favor of defendant Lerman.

By cross-complaint Lerman sought and recovered from plaintiff Reynolds $3,941, plus attorney's fees, on account of abandonment of his lease.

Sheriff Biscailuz appealed from the portion of the judgment awarding damages against him.No party appealed from any other part of the judgment.Plaintiff-respondent filed no brief.The attorney for Lerman appeared as amicus curiae and filed a brief supporting the judgment.

Appellant's first contention is that plaintiff cannot recover because of failure to file a claim with him pursuant to § 1981,Government Code.That section relates to personal injuries and property damage and accidents due to negligence.The text is as follows: 'Whenever it is claimed that any person has been injured or any property damaged as a result of the negligence or carelessness of any public officer or employee occurring during the course of his service or employment or as a result of the dangerous or defective condition of any public property, alleged to be due to the negligence or carelessness of any officer or employee, within 90 days after the accident has occurred a verified claim for damages shall be presented in writing and filed with the officer or employee and the clerk or secretary of the legislative body of the school district, county, or municipality, as the case may be.In the case of a State officer the claim shall be filed with the officer and the Governor.'Amicus curiae contends that this section does not apply to a conversion action because negligence is not an element of such a cause; also that the court could not change a conversion action into one falling within § 1981 by making a finding that the sheriff was negligent.

Section 1981 plainly embraces only negligence actions.Its terms are so limited.It is not to be extended by implication.Stewart v. McCollister, 37 Cal.2d 203, 207, 231 P.2d 48.Of course, if it is applicable, failure to file a claim is fatal to the action.Veriddo v. Renaud, 35 Cal.2d 263, 265, 217 P.2d 647;Rounds v. Brown, 121 Cal.App.2d 642, 644, 263 P.2d 620.

Appellant argues that the instant cause is an action for negligence and his counsel cite cases in which a sheriff has been held liable for negligence through failure to 'safely keep' the attached property, viz., Sparks v. Buckner, 14 Cal.App.2d 213, 57 P.2d 1395;Huston v. Abbott, 30 Cal.App.2d 5, 85 P.2d 518.In both of these cases it appears that the officer was charged with that type of dereliction and held liable therefor, but in neither was the question of applicability of § 1981 to a conversion action discussed, and indeed the subject as to whether there had been a conversion was not in issue.Another cited case, Hesser v. Rowley, 139 Cal. 410, 73 P. 156, is not in point.It involved the release of an attachment on real property; there was no question of whether the sheriff's liability arose out of negligence or conversion; realty cannot be the subject of conversion.Graner v. Hogsett, 84 Cal.App.2d 657, 662, 191 P.2d 497.

The amended complaint at bar alleges that Lerman sued Reynolds in the municipal court to recover rent in the sum of $235, caused a writ of attachment to be issued directing the proper officer to attach and safely keep property of the defendant; that the writ was delivered to the sheriff (appellant) who attached the personal property in Reynolds' place of business and stored same in the warehouse of Republic Van and Storage Company; that storage charges accumulated in excess of $600; that the storage company, without any notice to plaintiff Reynolds sold at public auction, without any court order therefor, the attached property to satisfy storage charges.Plaintiff's complaint alleged the value thereof to be $35,391.12; the court found the sum of $1,500 to be the reasonable value.The complaint also alleged that the defendants were guilty of oppression and malice and prayed for exemplary damages in the sum of $10,000.

After a nonjury trial the court found to be true the allegations of the complaint above summarized, except as to value of the property and except as to the charge of oppression and malice; also found that the sheriff first put a keeper in charge, then later, upon direction from Lerman's attorney, stored the property in the warehouse of Republic Van and Storage Company, which company was selected by the sheriff and become his agent for the purpose of storing and keeping the property; that the sheriff at no time made any demand upon Lerman for any fees or other monies which were not paid; that the storage charges totaled $885.80; that the sale was made not only without notice to Reynolds and without court order, but also without Lerman's permission or consent; that the storage company bid in the property for the sum of $75; 'that the plaintiff and cross defendant has lost all of the said personal property levied upon and taken under the writ of attachment.'

There is no allegation of negligence whatever in the complaint.Its averments spell conversion and nothing else.Aigeltinger v. Whelan, 133 Cal. 110, 65 P. 125, holds that a sheriff is liable for conversion under these circumstances.In that case the officer had attached certain personal property and placed it in storage.The attaching creditor had not failed to furnish any expense or other monies demanded by the sheriff; the warehouseman ultimately sold the property for payment of storage charges, doing so without procuring any court order or other competent authorization.The court said, 133 Cal. at page 112, 65 P. at page 125: 'In permitting the property to be sold for storage, the sheriff violated the duty to safely keep the same, and to restore it to the defendant on his recovering judgment.Code Civ.Proc., §§ 540,553.It is unnecessary to determine whether the sheriff ever had a lien on the property; but as to that matter it is sufficient to say that he had no right to sell the property, or to permit it to be sold, pending the suit, in the absence of an order of the court directing its sale.The act of the warehouseman in making the sale is to be treated as the act of his principal, the sheriff, and in so selling, or permitting the property to be sold, without authority of law, the sheriff became liable as for a conversion of the property, whether he ever had a lien on it for his charges or not.If he had a lien on the property, that alone would not warrant such a sale of it as the circumstances here disclose.'The case of Callahan v. Danziger, 172 Cal. 738, 742, 158 P. 760, 761, says that 'the sheriff had no discretion but to obey the writ commanding him to 'attach and safely keep all the property.'* * * It is his duty to preserve such property at his peril.'And the Aigeltingercase, supra, was cited to the same effect in Holm v. Overholt, 214 Cal. 431, 434, 6 P.2d 76.Of course, negligence is not an element of conversion.Poggi v. Scott, 167 Cal. 372, 375, 139 P. 815, 51 L.R.A.,N.S., 925;Byer v. Canadian Bank of Commerce, 8 Cal.2d 297, 300, 65 P.2d 67;George v. Bekins Van & Storage Co., 33 Cal.2d 834, 838, 205 P.2d 1037.And if this be a conversion action the court's finding of negligence on the part of the sheriff could not change the cause of action and is to be disregarded as one covering an immaterial matter.Alonso v. Hills, 95 Cal.App.2d 778, 788-789, 214 P.2d 50;People v. Marblehead Land Co., 82 Cal.App. 289, 301-302, 255 P. 553.

It appears from the cases heretofore discussed that a sheriff may be guilty of negligence in failure to safely keep attached property or may be chargeable with conversion for such failure, depending upon the circumstances of the particular case.In determining the nature of the cause of action at bar it is important that we do not confuse 'the unlawful conduct which...