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Gari Calhoun et al v. James R. Coffron et al


March 29, 2011


(Super. Ct. No. CV16320)

The opinion of the court was delivered by: Duarte ,j.

Calhoun v. Coffron CA3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Gari*fn1 and Unique Calhoun (Tenant) leased space from James and Judith Coffron (Landlord) for the thrift store, Weekend Things, but fell behind on the rent and were evicted. Landlord believed the personal property that Tenant left behind, primarily inventory of the thrift store, was "junk" or "trash" and disposed of it without waiting 15 days to give Tenant an opportunity to reclaim it. Tenant brought suit against Landlord for conversion. After a court trial, the trial court found in favor of Landlord; Tenant appealed. Tenant contends that the trial court misconstrued the law on the disposal of a tenant's property after the end of the tenancy and erroneously failed to consider Tenant's multiple objections to the statement of decision.

As we will explain, in order to achieve statutory immunity from liability, Landlord was required to hold Tenant's property for 15 days, in order to give Tenant the opportunity to reclaim it. Landlord did not do so. However, Tenant failed to show conversion, as it could not show its ability and intent to reclaim its personal property within the statutory time limit, and thus could not show damage. We shall affirm.


Tenant operated a thrift store, Weekend Things. It took over the business, including the lease, from God's Helping Hands, which had also been operating as a thrift store. In January 2007,*fn2 Tenant entered into a lease with Landlord for a 2640-square-foot industrial unit at 323 West La Cadena Drive in Riverside County. The term of the lease was for one year beginning March 1, and the monthly rent was $1,375. The startup costs of the business were higher than Tenant had expected. From the start, Tenant had trouble paying the rent; it never made a full payment.

In May, Landlord filed an unlawful detainer action and took a default judgment. The court issued a writ of possession and the sheriff served Tenant with a notice to vacate. The notice indicated that the eviction day was Tuesday, July 3, at 6:01 a.m. The notice to vacate advised Tenant: "All personal property upon the premises at that time will be turned over to the landlord, who must return said personal property to you upon payment of the reasonable cost incurred by landlord in storing the property from the date of eviction to the date of payment. If the property is stored on the landlord's premises, the reasonable cost of storage is the fair rental value of the space necessary for the time of storage. If you do not pay the reasonable storage cost and take possession within fifteen (15) days, the landlord may either sell your property at a public sale and keep from the proceeds of the sale the costs of storage and of the sale (1988 CCC), or, if the property is valued at less than $300.00, the landlord may dispose of your property or retain it for his own use. (715.010(b)(3), 1174 CCP)."

Tenant vacated the property on July 3. It gave the keys to a neighboring tenant.

A deputy sheriff served an eviction restoration notice on July 6. The notice could have been served on July 3, the original eviction date, but due to scheduling and other factors, service was delayed until July 6. It stated that by virtue of a writ of execution for possession of real property, the property was restored to the landlord on the eviction date. The notice further advised Tenant, "Pursuant to California Civil Procedure sections 715.010(b)(3) and 715.030, all personal property left on the premises has been turned over to the landlord. The landlord is responsible for safe keeping of tenant's property for fifteen (15) days from the date of eviction. The landlord may charge a reasonable fee for removal and storage of the property. However, upon demand of the tenant, the landlord must return the tenant's property if the tenant pays all costs incurred by the property owner for storage and maintenance. If the costs are not paid by the tenant and the tenant does not take possession of the property left behind before the end of the fifteen (15) day period, the landlord may either sell the property at public sale and keep from the proceeds of the sale the costs of storage and of the sale (1988 CCC). If the property is valued at less than $300.00, the landlord may dispose of the property or retain it for his own use. (1174 CCP)."

Landlord hired real estate agent Cheryl Wilson to clean up the property after Tenant left. On July 3, she picked up the keys, inspected the property, took pictures and locked up. Wilson told Landlord that the property was a mess. She claimed that the premises looked like a bomb had gone off inside; there were food wrappers, rotting food, and "stuff" piled all over. When she turned on the light in the back room, she heard scurrying and saw rat droppings.

Landlord told Wilson she needed to get rid of the "stuff," which she also characterized at various times as "junk," or "garbage." She ordered a total of five dumpsters: four roll-offs and a small top loader. The dumpsters were ordered July 6, 10, 12, 17 and 19. The July 6 dumpster was a full one that Tenant had left behind; Wilson had to put it in her name and pay Tenant's $800 bill to get it removed. All dumpsters were loaded and removed from the property by July 19. While the dumpsters were outside of the building, third parties used them to dispose of items such as mattresses, broken down furniture and construction materials. Landlord spent $5,616.94 for dumpsters, cleaning, unpaid utility bills, supplies, repairs, and three "No Dumping" signs.

About 10 days after the eviction, Tenant Gari Calhoun's brother notified him of the presence of dumpsters at the store site and that his property was being thrown out. The next day, Calhoun drove by and saw people going through the dumpster and taking his "stuff."

Tenant never contacted Landlord about reclaiming the personal property that it had left behind. Instead, after the 15 days had passed, it filed a complaint against Landlord for conversion.*fn3 It claimed the property Landlord destroyed was worth $60,000. It also sought damages for extreme emotional distress and punitive damages.

At trial, Tenant testified about the personal property thrown away by Landlord. It provided pictures from when the store was in operation. It used these pictures to compile a list of the property left behind, which it valued at over $60,000. It claimed it had left a 19-foot wall display cabinet that had been purchased for $2,500. Additional items of property that it claimed had been thrown away included a soda machine worth $1,500, display cabinets, an eight-foot pile of clothes, and several bags of vintage clothing. A recycler who was at the store the evening that Tenant moved out testified to a "mountain" of clothing, much of which was still there after Tenant vacated. Over defense objection, the trial court admitted the deposition of Burdette Garvin. Garvin set a bulk value of $30,000 for the personal property Tenant left behind.

Tenant Gari Calhoun testified that he had purchased the business for $5,000; one-half of this price was for inventory and fixtures. He paid cash for purchases and had no paper trail for anything except $3,500 for three display cabinets. He never paid taxes on his sales nor filed a tax return for his business. He claimed he had saved $1,600 to $1,700 to reclaim his property.

Two tenants from the same complex testified that they had seen several loads of property removed with a U-Haul truck and a large pickup before Tenant left. One described the property left behind as "trash" with no value. The deputy who served the eviction notice described the property left as what one would find at a garage sale; it was in fair or poor condition. Wilson testified the property left was "junk."

In its statement of decision, the court found that Tenant vacated on July 3, on compulsion of a notice to vacate; it did not voluntarily abandon. Prior to expiration of the 15-day period, Landlord initiated and shortly completed removal of the property left behind. Landlord gave Tenant no notice of its intent to dispose and Tenant gave Landlord no notice of any intent to reclaim, although Tenant was aware of Landlord's actions. The trial court found Tenant Gari Calhoun's testimony about his ability and intent to reclaim was not credible.

The court rejected Tenant's testimony about the nature, extent and value of the personal property left behind. It found the absence of any business or inventory records "further denigrates the testimony and documentary evidence." The court gave no weight to Garvin's valuation of the property because it was based on Tenant's testimony.

The court accepted the testimony of Wilson and the neighboring tenants and found that the property left behind consisted of junk and trash and appeared to have no monetary value. This testimony was supported by Wilson's photographs. The court found that even if selected items had some utility, Landlord was not required to make a value determination on an item-by-item basis. There was credible evidence that Landlord reasonably viewed the property left behind as trash and junk of no appreciable value.

The court found that implicit in the statutory scheme requiring a landlord to hold property for 15 days was the requirement that such property have an objective value. A landlord was not required to retain junk, trash, and rodent-infested material with no outward value. In such circumstances, the landlord was not required to wait 15 days before disposal.

Judgment was entered for Landlord, who was awarded $33,621.40 in costs.


I Landlord Is Not Immune From Liability Under Code Of Civil Procedure Section 1174

A. The Law

When a tenancy terminates, the tenant is obligated to remove his personal property from the premises, but does not always do so. Several statutes govern how a landlord may remove and dispose of property left behind by a vacating tenant. There are three statutory options that apply, respectively, to "lost" property (Civ. Code, §§ 2080 et seq.; Code Civ. Proc., §§ 715.030; 1174, subd. (e)); "abandoned" property (Civ. Code, §§ 1980 et seq.; § 1993, et seq.; Code Civ. Proc., §§ 715.030; 1174, subds. (f)-(m)); and property the tenant requests back (Civ. Code, § 1965; Code Civ. Proc., § 1174, subds. (f) & (h)). (See Friedman et al., Cal. Practice Guide: Landlord-Tenant, (The Rutter Group 2010) § 9:570 et seq., pp. 9-45 et seq.)

Different statutory schemes apply depending on whether a tenant leaves voluntarily or is evicted. When, as here, a writ of possession issues, the disposition of personal property remaining on the real property after the judgment creditor takes possession is governed by subdivisions (e) through (m) of Code of Civil Procedure section 1174 (hereafter section 1174). (Code Civ. Proc., § 715.030.)

Subdivisions (e) through (m) of section 1174 set forth procedures under which the landlord is not liable to the tenant for personal property left behind on the premises. Subdivision (e) addresses lost property. The subsequent subdivisions provide a framework under which the landlord may be statutorily immune from liability for the release or disposal of personal property left on the premises. Since this case involves the disposal of personal property, we focus on those provisions.

The first step is notice. The landlord must give notice to those, other than the tenant, the landlord reasonably believes might own some of the personal property left behind. (§ 1174, subd. (f).) Notice need not be given to the tenant because the tenant has already received notice. The writ of possession requires notice to the tenant that personal property remaining will be sold or otherwise disposed of unless the judgment debtor or other owner pays the reasonable cost of storage and takes possession of the personal property not later than 15 days after the judgment creditor takes possession of the premises. (Code Civ. Proc., § 715.010, subd. (b)(3).) Tenant was given this notice in both the notice to vacate and the eviction restoration notice.

The next step is storage. The landlord must store the personal property in a safe place until it is released or disposed of pursuant to the statutory provisions. (§ 1174, subd. (g).)

Finally, additional provisions govern the property's disposal. Where the personal property is disposed of rather than released to the tenant or other owner of the personal property, the pertinent statute governing the disposal is section 1988 of the Civil Code. (§ 1174, subd. (ℓ).) Section 1988 provides for the sale of abandoned personal property at a public sale by competitive bidding.*fn4 It sets forth the requirements for publication of notice of sale and the disposition of the proceeds of the sale. (Civ. Code, § 1988, subds. (b) & (c).) A landlord is not required to conduct a public sale if the remaining personal property appears to have limited value. "However, if the landlord reasonably believes that the total resale value of the property not released is less than three hundred dollars ($300), the landlord may retain such property for his or her own use or dispose of it in any manner." (Civ. Code, § 1988, subd. (a).)

Following the procedures for disposing of the tenant's personal property set forth in Civil Code section 1988, shields the landlord from liability to the tenant for an unlawful conversion. (§ 1174, subd. (ℓ).)

B. Analysis

Landlord failed to follow the procedure required under the applicable law to shield it from liability. Thus it was not statutorily immune from liability to Tenant. As the trial court found, Landlord began to dispose of Tenant's personal property before the 15-day period for reclaiming the property had elapsed. This finding is supported by the evidence; Wilson testified she ordered all but the last dumpster before July 18, when the 15-day period ended.

The trial court found that Landlord had no obligation to wait 15 days before disposing of Tenant's personal property where the items left behind were "'junk,' 'trash' and rodent infested material which to all outward and reasonable appearances has no value." Apparently recognizing that some of the personal property may have indeed had some value, the court further found Landlord had no duty to make a value determination on an item-by-item basis. The trial court found the exception to the 15-day holding requirement for "trash" and "junk" was "implicit" in the statutory scheme.

The touchstone of statutory interpretation is the probable intent of the Legislature and that is determined first by looking to the language of the statute. (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632-633.) Subdivision (g) of section 1174 requires a landlord to "store the personal property in a place of safekeeping" until it is released or disposed of. In finding an implicit exception for "trash" and "junk," the trial court found trash and junk were not "personal property." We agree with the trial court's interpretation to the extent that it applies to items that are indisputably trash, such as food wrappings or various items already placed in a garbage can. (See Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281-1283 [documents placed in an outdoor trash barrel no longer retain their character as personal property].)

This case, however, involves more than obvious trash. There were clearly items of some value included in the mix of items left behind. To the extent the trial court found to the contrary, that finding is not supported by substantial evidence. As proved by Landlord's own pictures of the premises after Tenant had vacated, some of the personal property left behind was inventory of the thrift shop, such as lamps, clothing, toys and books. The deputy described what he saw as garage sale property. While the value of this personal property is subject to dispute, it cannot be said to have no value at all. "As the saying goes, one person's trash is another person's treasure." (People v. Tarris (2009) 180 Cal.App.4th 612, 621.)

The trial court's interpretation of the statutory scheme seems to be that a landlord has no obligation to hold a tenant's personal property where the landlord reasonably believes its value is less than $300 because, if the value be less than $300, the landlord may ultimately throw away the property. It is true that the landlord may throw away, or retain for his purposes, personal property he reasonably believes to have such a low value (Civ. Code, § 1988, subd. (a)), but this provision comes into play only after the 15-day holding period has expired. There is no language in the statute supporting the trial court's interpretation that a landlord may immediately and with immunity dispose of personal property he believes has little or no value. Rather, the statutory framework provides a mechanism giving the landlord immunity if the landlord waits 15 days, giving the tenant an opportunity to reclaim his personal property. Moreover, personal property that appears to have little value to a third party may have substantial sentimental value; premature disposal of such property may give rise to damages for emotional distress in a conversion action. (See Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464, 477 [damages for emotional distress recoverable in conversion action, citing as examples conversion of household furniture and pet dog].)

Since Landlord failed to follow the safe harbor provisions of section 1174 and Civil Code section 1988, Landlord is not statutorily immune from liability. We turn now to whether Tenant proved its conversion case.

II Tenant Failed To Show Conversion

"Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use." (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543-544; Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 221.)

Here, Tenant did not have an absolute right to possess the personal property at the time Landlord disposed of it. Instead, it had a right to reclaim the property only if it paid the reasonable costs of storage within 15 days after possession of the property was turned over to Landlord. (Code Civ. Proc., § 715.010, subd. (b)(3).) In holding the tenant's personal property, the landlord is a depository and entitled to compensation for the storage. To secure payment of that compensation, section 1174 in essence gives the landlord a special lien on the personal property which is discharged by payment of storage costs. (Gray v. Whitmore (1971) 17 Cal.App.3d 1, 16.) To succeed in its conversion action, therefore, Tenant had to show that it could have and would have reclaimed its personal property in a timely manner. The trial court found to the contrary.

The trial court found that Tenant Gari Calhoun's testimony about his ability and intent to reclaim the property was not credible. Substantial evidence supports this factual determination. From the beginning of the lease, Tenant's financial problems made it delinquent on rent payments. While Calhoun testified that he had saved $1,600 to $1,700 to reclaim his personal property, the trial court could reasonably disbelieve this testimony in light of Tenant's recent defaults.

Even more compelling is the evidence supporting the court's finding that Tenant had no intent to reclaim its personal property.*fn5 A neighboring tenant saw several truckloads of property removed from Weekend Things in the weeks prior to the store's closing. This evidence supports the reasonable inference that Tenant had removed the items it wanted prior to its eviction. This inference is strengthened by Tenant's later actions. After Tenant learned that its property was being thrown into dumpsters, it did not contact Landlord or take any other action to stop further disposal. It testified that it was waiting to receive notice from Landlord about reclaiming the property, but it had already received such notice in the notice to evict. Instead of contacting Landlord to assert a claim or otherwise trying to stop or mitigate the disposal of its property before the disposal was complete, Tenant took no immediate action but instead, feeling "hurt," "checked into a few different attorneys."

"In reviewing a trial court's decision, we review the result, not the reasoning. A decision right in result will not be reversed because it is based on an erroneous theory. [Citation.]" (Florio v. Lau (1998) 68 Cal.App.4th 637, 653.) Although for the reasons previously explained we disagree with the trial court's conclusion that the requirements of section 1174 and Civil Code section 1988 did not apply to the instant situation, we agree that Tenant has failed to make a case for conversion.

III The Trial Court Did Not Err When It Failed To Address Tenant's Objections To The Statement Of Decision

After the trial court issued its statement of decision, Tenant filed 17 objections to it. The trial court did not amend its statement of decision or respond to Tenant's objections. Tenant contends that the trial court erred in not responding to its objections. Tenant's "argument" on this point in its opening brief merely reiterates the 17 objections, and fails to provide a factual or legal analysis warranting reversal. When a point is asserted without argument and authority for the proposition, "it is deemed to be without foundation and requires no discussion by the reviewing court." (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)

In any event, Tenant's contention has no merit. "The trial court is not required to make an express finding of fact on every factual matter controverted at trial, where the statement of decision sufficiently disposes of all the basic issues in the case." (Bauer v. Bauer (1996) 46 Cal.App.4th 1106, 1118.) "[O]nly when it fails to make findings on a material issue which would fairly disclose the trial court's determination would reversible error result. [Citations.] Even then, if the judgment is otherwise supported, the omission to make such findings is harmless error unless the evidence is sufficient to sustain a finding in the complaining party's favor which would have the effect of countervailing or destroying other findings. [Citation.] A failure to find on an immaterial issue is not error. [Citation.]" (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.)

We conclude that the trial court's statement of decision properly disposed of all of the material issues. As discussed ante, the trial court found that Landlord failed to comply with the 15-day holding period, that Tenant intended to abandon its personal property, and that Tenant failed to establish that it had the requisite intent and ability to reclaim its personal property. Thus the conversion action fails. We have found that the trial court's rejection of Tenant's position and presentation on these points was supported by substantial evidence. There was no error.


The judgment is affirmed.

We concur: BLEASE , Acting P.J. ROBIE ,J.

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