Mihans

In this proceeding in which we issued an alternative writ of prohibition, petitioners challenge the constitutionality of Code of Civil Procedure section 1166a, insofar as it authorizes the issuance of a prejudgment writ of immediate possession pending the hearing on the merits in an unlawful detainer action. They contend that such procedure deprives them of property without due process of law and denies them the equal protection of the law.

Petitioners are tenants in possession of certain premises in Berkeley pursuant to oral month-to-month tenancies. On February 6, 1970, real party in interest, Robert E. Leverette, filed a verified complaint in unlawful detainer in respondent municipal court (action No. 26273) seeking restitution of the premises occupied by petitioner Chris S. Lee because of the nonpayment of rent. A similar action (No. 26274) was filed by Leverette against Eric Manken and Donna Manken. Pursuant to said complaints Leverette also sought to recover against said petitioners a money judgment for rent, treble damages for unlawful detention, and attorney fees.

Attached to these complaints was a notice of motion for a writ of immediate possession pursuant to…