Opinion
B184551
12-6-2006
DOUGLAS LINDNER, Plaintiff and Appellant, v. PRAXAIR DISTRIBUTION, INC. et al., Defendants and Respondents.
Michael N. Sofris for Plaintiff and Appellant. Quinn Emanuel Urquhart Oliver & Hedges, Harry A. Olivar Jr. and Anthony P. Alden for Defendants and Respondents.
Former tenant (sublessee) Douglas Lindner, doing business as American Welding Company, was evicted in an unlawful detainer action after defaulting on the rent. Lindners equipment and personal property was left on the premises for over three months after eviction, even though he had several opportunities to reclaim the property. Praxair Distribution, Inc. and Roy Beattie (collectively Praxair), as sublessors, mailed a notice of abandoned property, published a notice of public sale, then sold the property at public auction. Lindner sued Praxair for conversion and violation of Civil Code section 1712 ("Restoration of thing wrongfully acquired"). The court sustained a demurrer to the complaint finding that Lindner was served with a notice to reclaim abandoned property and that the notice of public auction complied with statutory law. Lindner appeals claiming section 1989 does not bar an action for conversion of property that was not described in either the notice to reclaim or the notice of public auction. We affirm.
All statutory references are to the Civil Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2004 Praxair brought an unlawful detainer action against Lindner for failure to pay rent and utilities at commercial property located in Torrance California. On June 22, 2004, the court ruled Lindner owed Praxair approximately $ 17,000 in unpaid rent, damages and costs and ordered possession of the premises returned to Praxair.
This court takes judicial notice of documents filed in the trial court. (Freis v. Soboroff (2000) 81 Cal.App.4th 1102, 1104; Evid. Code, §§ 453, 459.)
On June 30, 2004, Lindner filed an ex parte application to set aside the unlawful detainer on the basis he was being treated with a number of psychiatric medications and therapy. After a hearing and new trial, the court set aside the prior judgment and entered a new judgment for Praxiar for over $17,000 in unpaid rent, damages and costs and ordered possession of the premises returned to Praxair.
On July 13, 2004, John Bivings, a nonlawyer and employee of Lindner, filed an ex parte petition for stay of execution asserting that Lindner was visibly impaired at the trial because of the medications he takes. The court denied the petition. Lindner appealed the unlawful detainer judgment already vacated by the court and that appeal was dismissed. That same day Bivings filed an ex parte application for writ of possession. The application was denied. Lindner again filed another notice of appeal which was dismissed.
On July 20, 2004, Bivings filed another ex parte application for writ of possession and the court denied this application.
On July 29, 2004, Bivings filed a "notice of ex parte motion and application to quash writ of possession and vacate order on writ of possession pending a hearing," and "claimants ex parte application for order on writ of possession pending hearing." Bivings designated himself as a claimant in the action asking to restore the tenancy. The court denied the application. Three days later Bivings filed an "ex parte motion and application for re-issuance of order for evidentiary hearing," which was denied by the court.
On August 30, 2004, Praxiar served Lindner with a notice of right to reclaim property. The notice stated that upon paying reasonable costs of storage, Lindner could recover his equipment. The notice also stated if Lindner failed to reclaim his equipment prior to September 17, 2004, the property "may be disposed of pursuant to Civil Code section 1988."
On September 3, 2004, six weeks after Lindners eviction, Bivings filed a "peremptory challenge; notice of motion and application per Code of Civil Procedure section 170.3 and motion for order to compel Plaintiff to reimburse Defendant for Loss of property improperly secured while in plaintiffs control." Bivings sought to disqualify Judge Deanne Smith Myers and sought reimbursement for property left on the premises. In all, five ex parte applications, two appeals, and a statement of disqualification were filed in order to restore Lindners tenancy.
On September 23, 2004, Bivings filed an ex parte application to prohibit Praxair from disposing of Lindners property. The court granted Lindner an additional two days to remove his property from the Praxair premises. Lindner did not retrieve his property by the deadline.
On October 6 and 13, 2004, Praxair published a notice of sale of abandoned property pursuant to section 1988 and on October 21, 2004, four months after Lindners eviction, Praxair sold the equipment at public auction.
We do not reach the issue of excess proceeds, if any, from the public sale of the property because of an insufficiency of the record.
Lindner originally sued Praxair for wrongful death, negligence and intentional infliction of emotional distress claiming "[Praxair] owes restitution of property stolen, or through conversion, while said property was in [Praxairs] control immediately superceding an eviction" and "[Praxair] caused the untimely death of [Lindners] mother through intentional and continual infliction of emotional distress by negligence in improperly storing property left in [Praxairs] control, therefore severely damaging Mrs. Lindners ability to earn. Mrs. Lindner was the primary financier of [Lindners] business . . . Mrs. Linder eventually became so distraught she suffered a sever[e] elevation in blood pressure and was ultimately killed by a massive cerebral hemorrhage . . . ." Also Lindner claimed Praxair was negligent in "reasonably storing and securing personal property . . . immediately following an unlawful detainer and eviction and did not inventory said property" and "the warehouse was burglarized and the majority of tools and equipment acquired by [Lindner] over a 30 year period were stolen" and "while [Lindner] no longer has the means to earn an income he did not have sufficient funds to retrieve the remaining equipment from the former rental location." (Italics added.)
Praxair demurred to the complaint and the trial court sustained the demurrer on the ground the complaint failed to plead facts sufficient to state a cause of action but granted Lindner leave to amend.
On December 13, 2004, Lindner filed a first amended complaint alleging one cause of action for wrongful death. Once again, Praxair demurred and the court sustained the demurrer with leave to amend.
On February 23, 2005, Lindner filed a second amended complaint alleging conversion and violation of Civil Code section 1712 for restoration of property wrongfully acquired. Lindner admitted in his pleading that "[Praxair] caused [Linders] property to be sold for an undisclosed sum at a public auction on October 21, 2004," and that a notice of sale "was caused to be published in a Torrance-based newspaper called `The Daily Breeze." Again Praxair demurred and the trial court sustained the demurrer as to all causes of action without leave to amend and dismissed the second amended complaint. The court found that the second amended complaint disclosed a complete defense under Civil Code section 1989 to Lindners claims. Lindner filed a motion for reconsideration which was denied. Lindner filed a timely notice of appeal.
Section 1989 precludes a claim of conversion against a landlord where notice was given to any person pursuant to section 1983 and where the property was sold at public auction pursuant to section 1988.
DISCUSSION
Standard of Review
"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. `We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; citations omitted.)
I. The trial court did not err in barring appellants claims under section 1989
Pursuant to section 1989, a landlord is not liable to the owner of property who receives notice of the disposal of abandoned property in the manner prescribed by statute. Where personal property remains on the premises after a tenancy has been terminated, the landlord may dispose of the property as abandoned property by following certain statutory provisions for the sale of the property. (§ 1988.)
a. Notice of Right to Reclaim Property pursuant to section 1983
Lindner admits he was served with a notice to reclaim property with an attached inventory sheet but contends the inventory list did not describe all of the property on the premises. The inventory sheet listed various articles of clothing, a broken couch, broken chairs, various broken desks, three wooden work benches, one scrap metal rack, various pieces of scrap metal, file cabinets, broken keyboards, monitors and computer equipment, stripped and inoperable drill press, and various other personal items including pictures, mugs and cups. The notice further stated the "property is believed to be worth less than $300."
On appeal, Lindner contends the express provisions of section 1983, subdivision (b) extending immunity from liability for conversion to a landlord, do not apply to property that is not identified in the notice. We disagree.
Section 1983, subdivision (b) states in pertinent part "[t]he notice shall describe the property in a manner reasonably adequate to permit the owner of the property to identify it. The notice may describe all or a portion of the property, but the limitation of liability provided by section 1989 does not protect a landlord from the disposition of property not described in the notice . . . ." (Italics added.)
The section 1983 notice served on Lindner gave him the opportunity to reclaim his own property, property he was completely familiar with. Lindner had several opportunities to reclaim the property over a four-month period and rather than reclaim the property Lindner only took photographs of the items. To require specific hyper-technical descriptions of the volume of personal property in this instance is not reasonable. The statute requires only a description of property in a manner reasonably adequate to permit the owner [if the owner is someone other than the actual tenant] to identify it. Here the owner of the property was the tenant himself and thus he was able to identify his own property.
Lindners reliance on Hollander v. California Manufacturing Enterprises, Inc. (1996) 44 Cal.App.4th 561, 570, is misplaced. Hollander involved the failure to give notice of sale to a guarantor before selling the debtors abandoned property. Here, Lindner received notice of his right to reclaim the property with the proviso that if he failed to reclaim his property by September 17, 2004, it may be disposed of pursuant to section 1988. Lindner does not dispute receiving such notice. On the same note, it follows that Praxair was only required to give notice of the public sale by publication in a newspaper of general circulation as was properly done by Praxair.
Moreover, Praxair contends section 1983 does not apply where, as here, the tenant is evicted pursuant to a writ of possession. Code of Civil Procedure section 1174 states "[t]he landlord shall give notice pursuant to Section 1983 of the Civil Code to any person (other than the tenant) . . . . [and] [¶] Personal property not released [to the tenant] shall be disposed of pursuant to Section 1988 of the Civil Code." (Code Civ. Proc., § 1174, subds. (f) and (i); italics added.) Therefore, a separate section 1983 notice need only be served on those former tenants who vacated other than by eviction under writ of possession and on other nontenants reasonably believed to be owners of the property left behind. Nonetheless Lindner, as both tenant and owner of the property was given notice pursuant to both the writ of possession and section 1983. Lindner knew exactly what was left on the premises, admitted receiving notice of his right to reclaim the property, had ample opportunity to remove the property (up to four months), admitted he did not have sufficient funds to remove the property, and ultimately did not reclaim the property.
b. Notice of Public Sale pursuant to section 1988
Lindner concedes Praxair published a section 1988 notice of sale in the Daily Breeze newspaper but again contends the section 1988 notice did not describe all of the property. Lindner claims the notice failed to identify "an Induma Bridgeport type milling machine, a combination table saw/joiner, a TIG Welding Machine Cooler, and a high speed sewage transfer pump."
A review of the notice of public sale shows the notice specifically described more than 120 items. It was not necessary to describe with technical precision the equipment left behind by a commercial tenant. Again, Lindner well knew the items of property left behind on the premises. He admitted taking "167 photographs of the contents that remained post-eviction" and instead of removing the property Lindner used his access to gather evidence for a future lawsuit. Any defect in failing to identify four out of over 120 items would not have made a difference. More importantly, Lindner admitted he did not have sufficient funds to retrieve the remaining equipment from the former rental location.
II. The trial court did not abuse its discretion in sustaining the demurrer without leave to amend
Lindner contends the court abused its discretion when it found the complaint not capable of amendment. Lindner claims he could have amended the complaint to (1) "seek damages only for those items of property . . . not described in either notice," (2) "describe with specificity the property [Praxair] claimed was stolen between July 15, 2004 and August 30, 2004," and (3) "clarify[y] [a paragraph] of the second amended complaint so that it provided a date certain for the date that [a]ppellants found out about the [p]ublic [a]uction and saw the notice because this date occurred after the purported auction." We disagree.
Lindner is not entitled to relitigate the same issues. Collateral estoppel is designed to preclude parties to a previous action from relitigating issues determined against them in the first action and may be asserted by demurrer when the facts supporting the defense can be established by judicial notice. It is clear from the judicially noticeable facts these requirements are met. Lindner seeks to relitigate identical issues raised in his ex parte application — the legality of Praxairs sale of the property. Lindner admits he was served with a notice to reclaim abandoned property, admits the notice of public sale was published pursuant to section 1988, was granted a full hearing on the issue, was given additional time to remove his property from the premises, failed to do so, and now wants to relitigate the same issue.
Lindner made three attempts to present his causes of action. Each time he failed. The demurrer was sustained because of the immunity provided when the statutory procedures for disposing of abandoned property are properly followed. Accordingly, the trial court properly sustained the demurrer without leave to amend.
CONCLUSION
The judgment is affirmed. Respondents to recover costs on appeal.
We concur:
JOHNSON, Acting P.J.
ZELON, J.