Jones v. Salvo





















Filed 3/25/13 Jones v. Salvo CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.



IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
ONE




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PAMELA K. JONES, Plaintiff and Respondent, v. GAETANO SALVO, Defendant and Appellant.

B235515 (Los Angeles County Super. Ct. No. NS019359)

APPEAL from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Michele E.
Flurer, Judge. Reversed.

Gaetano Salvo, in pro. per., for Defendant and
Appellant.

Pamela K. Jones, in pro. per., for
Plaintiff and Respondent.

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Appellant Gaetano Salvo rented a
garage on property purchased by Pamela K. Jones. Without obtaining a writ of possession, Jones
obtained a restraining order ordering Salvo to not harass Jones and to stay 100
yards away from Jones, her home, workplace, and vehicle, which dispossessed
Salvo of possession of the garage. On
appeal, Salvo contends that the trial court erred in issuing the restraining
order because Jones failed to obtain a writ
of possession after the court entered a judgment in her favor on an
unlawful detainer complaint against him.
We agree and reverse the order.

>BACKGROUND

In March 2011, Jones closed escrow
on residential property located at 3503 South Kerckhoff Avenue, San
Pedro, California (the
property). She subsequently discovered
that Salvo had possession of a “middle garage, attached to her home,” pursuant
to a “month-to-month garage rental agreement” that Salvo and a previous owner
of the property had entered into in February 2010 (garage rental agreement). The garage rental agreement stated that the
garage was to be used “only for storage.”
According to Jones, “Salvo was to have vacated the garage upon transfer
of ownership. He did not vacate.”

On March 23, 2011, Jones served Salvo with a 30-day “notice
to vacate,” requiring Salvo to vacate the property no later than April 19, 2011, 5:00 p.m., and limiting his access to the garage between
the hours of 9:00 a.m. and 5:00 p.m.
Subsequently, Jones concluded that Salvo was living in the garage
because he purportedly “remained in the garage all hours of the day and night,”
including “midnight, 3:00 a.m., 5:00 a.m.”; used Jones’s address as a mailing address and
rummaged through Jones’s mailbox; collected water from her front yard hose in
five-gallon water containers several times a week; and maintained a pet cat in
the garage. As a result, Jones allegedly
suffered “emotional distress, with feelings of her being violated by a
stranger, compromising her safety.”
Jones served Salvo with a three-day notice to quit on March 29, 2011. Salvo continued to reside in the garage,
which “created health and safety concerns for Jones,” supposedly causing Jones
“even more emotional distress.”

On April 27, 2011, Jones filed an href="http://www.mcmillanlaw.com/">unlawful detainer complaint against
Salvo, which stated that Salvo “is in possession of the premises located at
. . . Middle garage at 3503 S. Kerckhoff Av., San
Pedro, CA 90731
(storage only).”href="#_ftn1" name="_ftnref1"
title="">>[1] On May 27, 2011, the trial court entered
judgment in favor of Jones on her unlawful detainer action against Salvo and
ordered that she recover from him “the restitution and possession” of the
garage.

On June 1, 2011, even though Jones
had not obtained a writ of execution,
at Jones’s request, police officers removed Salvo from the garage and padlocked
the garage. The officers advised Salvo
that he could make arrangements through the Los Angeles Police Department to
collect his personal belongings. That
evening, Salvo slept in his car in front of the property. Early the next morning, Jones discovered that
Salvo had “broken in to the garage.” She summoned police, who arrested Salvo for
“breaking and entering, destruction of property, and criminal trespass.” On June 3, 2011, pursuant to Code of Civil
Procedure section 527.6 and based on a “credible threat of violence,” the trial
court issued a temporary restraining order ordering Salvo to not harass Jones
and to stay 100 yards away from Jones, her home, workplace, and vehicle.href="#_ftn2" name="_ftnref2" title="">>[2] On June 29, 2011, Salvo filed an answer
stating, “I was in legal po[s]session of my premises pending completion of an
u.d. procedure of due process (writ
of po[s]session [and] sheriff’s notice to vacate).”

On July 5, 2011, the trial
court issued a “Restraining Order After Hearing to Stop Harassment,” ordering
Salvo to not harass Jones and to stay 100 yards away from Jones, her home,
workplace, and vehicle. The order stated
it was to expire on July 4, 2012. From
June through September 2011, Salvo purportedly lived in his car and loitered
outside the 100-yard boundary of the property.
Salvo appealed.

>DISCUSSION

Jones’s failure to obtain a writ of possession requires reversal of the
restraining order

Salvo contends
that the trial court erred in issuing the restraining order against him because
Jones had failed to obtain a writ of possession after the court had entered a
judgment in her favor on her unlawful detainer complaint against him. He is correct.

“‘Unlawful
detainer is a unique body of law and its procedures are entirely separate from
the procedures pertaining to civil actions
generally.’ [Citation.] Sections 1159 through 1179a comprise what is
commonly known as the Unlawful Detainer Act; the statutes are ‘broad in scope
and available to both lessors and lessees who have suffered certain wrongs
committed by the other.’
[Citation.]” (>Palm Property Investments, LLC v. Yadegar (2011)
194 Cal.App.4th 1419, 1424.) Thus, “‘“a
tenant is entitled to a three-day notice to pay rent or quit which may be
enforced by summary legal proceedings (Code Civ. Proc., § 1161)
. . . .”’” (194
Cal.App.4th at p. 1425.) Upon service of
three days’ notice to quit on the person in possession, the landlord “shall
. . . be entitled to restitution of possession of the demised
premises under this chapter.”
(§ 1161, subd. 4.)

“After entry of a judgment
for possession or sale of property, a writ of possession or sale shall be
issued by the clerk of the court upon application of the judgment creditor and
shall be directed to the levying officer in the county where the judgment is to
be enforced.”
(§ 712.010.) The writ of
possession shall state that “if the real property is not vacated within five days
from the date of service of a copy of the writ on the occupant or, if
the copy of the writ is posted, within five days
from the date a copy of the writ is served on the judgment debtor, the levying
officer will remove the occupants from the real property and place the judgment
creditor in possession.”
(§ 715.010, subd. (b)(2).)
“If the judgment debtor . . . [does] not vacate the property
within five days from the date of service . . . the levying officer
shall remove the occupants from the property and place the judgment creditor in
possession.” (§ 715.020, subd.
(c).) “Until these steps are taken, the
tenant is entitled to peaceful possession of the rented premises and has the
right to exclude anyone, including the landlord.” (People
v. Thompson (1996) 43 Cal.App.4th 1265, 1270 (Thompson).)

A judgment
of possession only establishes entitlement to possession. (Bedi
v. McMullan (1984) 160 Cal.App.3d 272, 276.) That a judgment for possession has been
rendered does not mean that eviction is authorized because, for instance, the
judgment may have been stayed, the tenant may have been granted relief from the
judgment, or the occupant may not be named in the judgment. (Id.
at p. 277.) Thus, “[a] valid writ of execution is
the ultimate indispensable element of the legal process by which a party
entitled to possession of the property acquires possession.” (>Id.
at p. 276) The writ of
execution is designed to avoid forcible eviction
and informs the levying officer and occupants that the eviction is judicially
authorized. (Ibid.)

In the present case, on May 27,
2011, the trial court entered judgment in favor of Jones on her unlawful
detainer action against Salvo and ordered that she recover from him “the
restitution and possession” of the garage.
Jones then could have applied for a writ of possession. But she did not. Instead, on June 1, 2011, with the assistance
of police officers, Jones removed Salvo from the garage and padlocked the
garage at a time when Salvo had the right to possession of the garage.

And because Salvo had the right to
possession of the garage, the trial court erred in issuing a restraining order
based on Salvo’s attempt to maintain possession of the garage.

Thompson
offers guidance. In Thompson, the
Court of Appeal held that the defendant had not
been evicted lawfully from rented premises and therefore had standing to
contest a search of those premises. (>Thompson, supra, 43 Cal.App.4th at p. 1267.) There, “[t]he landlord simply obtained a
harassment restraining order directing defendant to stay away from the boarding
house. The restraining order did not,
and could not, effect a lawful eviction of the defendant. Even if the restraining order could be
confused with a judgment effecting an eviction, there must be a valid writ of
possession (or execution) and five days’ notice to allow the tenant to
voluntarily vacate the property.” (>Id. at p. 1270.)

Here, the
restraining order was based on the premise that Salvo did not have the right to
possession of the garage and that therefore his attempt to maintain possession
of the garage caused Jones to suffer emotional distress. But because Salvo had the right to
possession of the garage, we conclude that the restraining order was issued
erroneously and must be reversed.

>DISPOSITION

The
July 5, 2011 restraining order is reversed. Each party to bear their own costs on appeal.

NOT TO BE PUBLISHED.



MALLANO,
P. J.

We concur:



CHANEY, J.



JOHNSON, J.