Mihans v. Municipal Court

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 , 166 A.L.R. 701 ]), 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.’ ” (P. 672.)

Adverting to due process, we observe that the essence of this concept is fair play. (Galvan v. Press, 347 U.S. 522 , 530 [ 98 L.Ed. 911 , 921, 74 S.Ct. 737 ].) 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 ,

In view of the foregoing it is clear that, except where the tenant voluntarily surrenders possession before the issues of fact are joined, the primary issue to be determined in an unlawful detainer action is the right to the possession of the premises. Since the tenant has a right to retain property in his possession under the terms of his tenancy, the issue to be determined is whether he has lost the right to possession. That determination, in turn, depends on whether or not the tenant is “guilty of unlawful detainer” as specified in section 1161. It is equally clear, therefore, that the procedure provided for in section 1166a, insofar as it limits the issue to the insolvency of the tenant or his ability to respond in damages, deviates from the primary purpose of the unlawful detainer action, that is, the determination of the right to possession. It is clear from the langüage of the statute that the hearing is restricted to a determination of the tenant’s solvency and that the right to immediate possession is determined not upon the basis of whether the tenant is guilty of unlawful detainer but upon the tenant’s solvency. Accordingly, the landlord is awarded immediate possession because the tenant is insolvent although later, upon the trial on its merits, it might be determined that the landlord is not entitled to possession.

The unfairness of the procedure prescribed in section 1166a is demonstrated by the following situation: Under Civil Code sections 1941 and 1942 the tenant is permitted to make repairs of certain dilapidations which the landlord ought to repair, but neglects to do so, where the expenditure does not exceed one month’s rent of the premises. When the tenant makes such repairs he can deduct the expenses of such repairs from the rent. Accordingly, if the tenant deducts the amount of the repairs from the rent and a dispute arises between the tenant and the landlord as to the propriety of the deduction, resulting in the landlord’s bringing an unlawful detainer action for nonpayment of rent, the tenant must wait until the action is tried on the merits to establish his defense that the rent was in fact paid by a proper deduction for repairs. In the meantime the landlord can secure possession by invoking section 1166a, and since in that proceeding the issue is limited to the solvency of the tenant, the tenant is deprived of his property interest without a hearing, even though he might have a perfectly valid defense in the underlying action. The fact that he is subsequently successful in establishing his defense is merely an anticlimax which does not regain him the possession of the premises but only affords him an action for damages which cannot exceed the amount of the bond which the landlord filed as a condition for the issuance of the writ of immediate possession. This remedy may be of little solace to a tenant who was evicted from his home, not because he was guilty of unlawful detainer, but merely because he was insolvent under section 1166a. An equally incongruous situation is where, in the example just posed, the tenant was not found to be insolvent

but was found to have no property that was subject to execution sufficient to satisfy the amount of damages sought to be recovered by the landlord. Upon this finding he could be evicted although upon a trial of the case on the merits it was subsequently determined that the landlord was not entitled to any damages.

In view of the foregoing we conclude that section 1166a, although it affords notice and hearing, deprives a defendant of due process because it offends the primary purpose of an unlawful detainer action and because it flouts the concept of fairness implicit in due process. In sum, due process is not afforded by the type of notice and hearing provided for in 'section 1166a because these procedures are not aimed at establishing the validity, or at least the probable validity, of. the underlying claim against the tenant, that is, the landlord’s claim to the right of possession based on facts establishing that the tenant is guilty of unlawful detainer. The validity, or at the very least the probable validity, of such claim should be established against the tenant before he can be deprived of his property or its unrestricted use. (See concurring opinion by Harlan, J. in Sniadach v. Family Finance Corp., supra, 395 U.S. 337 , 342-343 [ 23 L.Ed.2d 349 , 354-355].)

Petitioners’ second contention alleges that section 1166a is invalid “because it denies to poor persons as a class, on the basis of their poverty alone, procedural rights given others and therefore violates equal protection standards.” Before considering this contention we observe that all laws are usually to some extent inherently unequal. Laws are usually based on classifications of persons or property. Such classifications, if not arbitrary or made merely for the purpose of classification, are not violative of equal protection, when based upon some natural and reasonable distinction in the classes, and having a substantial relation to the legitimate object to be accomplished. (See Telegraph Ave. Corp. v. Raentsch, 205 Cal. 93 , 98 [ 269 P. 1109 , 61 A.L.R. 366 ]; Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U.S. 150 , 155 [ 41 L.Ed. 666 , 668, 17 S.Ct. 255 ]; Whittaker v. Superior Court, 68 Cal.2d 357 , 367 [ 66 Cal.Rptr. 710 , 438 P.2d 358 ].) Not all classifications based upon economic status are unconstitutional if a rational basis exists in their support. (Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 [ 93 L.Ed. 1528 , 69 S.Ct. 1221 ].) The presumption is in favor of the classifications based on legislative experience and it will not be rejected unless plainly arbitrary. (Borden's Farm Products Co. v. Baldwin, 293 U.S. 194 , 209 [ 79 L.Ed. 281 , 288, 55 S.Ct. 187 ]; Bilyeu v. State Emp. Retirement System, 58 Cal.2d 618 , 623 [ 24 Cal.Rptr. 562 , 375 P.2d 442 ]; Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal.2d 276 , 288 [ 32 Cal.Rptr. 830 , 384 P.2d 158 ]; County of Los Angeles v. Superior Court, 62 Cal.2d 839 [ 44 Cal.Rptr. 796 , 402 P.2d 868 ].) What

The petition is dismissed as to petitioners Mihans and Akers. The peremptory writ is granted as to the other petitioners.

Sims, J., and Elkington, J., concurred.