Asell v. Rodrigues

• Decision Date: 06 June 1973
• Citation: 32 Cal.App.3d 817,108 Cal.Rptr. 566
• Court: California Court of Appeals Court of Appeals
• Parties: Geraldine ASELL, Plaintiff and Appellant, v. Jose RODRIGUES and Aldena Rodrigues, Defendants and Respondents. Civ. 1695.

Page 566

108 Cal.Rptr. 566

32 Cal.App.3d 817

Geraldine ASELL, Plaintiff and Appellant, v. Jose RODRIGUES and Aldena Rodrigues, Defendants and Respondents.

Civ. 1695.

Court of Appeal, Fifth District, California.

June 6, 1973.

Rushing, Clark & Haight, Gerald A. W. Haight, Modesto, for plaintiff and appellant.

Bush, Ackley, Milich & Hallinan and Hartley H. Bush, Oakdale, for defendants and respondents.

OPINION

FRANSON, Associate Justice.

Appellant appeals from a judgment in favor of respondents in the amount of $4,081.08.

Appellant filed a first amended complaint alleging seven causes of action against respondents; respondents filed a first amended cross-complaint alleging four causes of action against appellant. The trial court found in favor of appellant on her third and fourth causes of action for a total of $4,298.37, and in favor of respondents on the second cause of action of their amended cross-complaint for $8,379.05, and entered judgment for respondents for a difference of $4,081.08.

Appellant has limited this appeal to the adverse judgments on the first, fourth, fifth and seventh causes of action of her amended complaint and to the judgment against her on the second cause of action of the amended cross-complaint.

This lawsuit arose out of a lease by appellant to respondents of a 250-acre dairy ranch in Stanislaus county. Appellant leased her ranch to respondents by written lease effective October 15, 1969. The lease term was seven years, four and one-half months, at a monthly rental of $1146 commencing October 15, 1969.

In the lease, respondents covenanted to keep and maintain the premises in as good repair and condition as when they took possession; that they would not make any alterations or improvements to the premises without the prior written consent of appellant, provided that they could add a room onto the house if the plans for such addition be first approved by appellant; that they would not interfere with appellant's right to go upon the premises at any reasonable time for the purpose of inspecting and determining the condition thereof. In the event of any default by respondents of any of the covenants in the lease, appellant at her option could declare the lease terminated and reenter and remove all persons from the premises without restoring any consideration received under the lease; in this event it was provided that respondents waived all rights arising under the lease.

After respondents took possession of the ranch, they constructed cattle mangers and feed racks and added a new room on the main house. Soon thereafter ill will developed between the parties and after several verbal confrontations on the premises, appellant instructed her attorneys to prepare and serve on respondents a notice to quit and if respondents did not immediately vacate the premises to prosecute an unlawful detainer action against them. A notice to quit, dated January 27, 1970, was served on respondents, giving them three days to deliver possession of the ranch 'or the undersigned will institute legal proceedings against you to recover possession . . . and for TREBLE RENTS and DAMAGES.'

The notice alleged the breach of three covenants of the lease: that respondents would not construct a room onto the house without first providing plans to appellant for her approval, that respondents would not interfere with appellant's right to come onto the property for inspection, and that respondents would allow appellant to have one barn located upon the premises for a temporary storage of certain oat hay without interference by respondents. ¹

The notice stated, 'The breach of each and every covenant . . . is regarded in and of itself as a noncurable breach', and that appellant elected to declare a forfeiture of the lease under the default provisions thereof.

Respondents apparently chose to vacate the ranch rather than litigate the unlawful detainer action threatened by appellant. ² Louie Silva took possession of the ranch as appellant's new tenant on April 5, 1970 and respondents moved off of the ranch several days thereafter.

As to her first cause of action, appellant contends there is insufficient evidence to support the trial court's finding that respondents did not breach the covenants of the lease. In reviewing the sufficiency of the evidence to support the findings, this court must consider the evidence in a light most favorable to respondents, giving them the benefit of every reasonable inference in resolving conflicts in the evidence and in support of the judgment (Callahan v. Gray, 44 Cal.2d 107, 111, 279 P.2d 963; Crawford v. Southern Pacific Company, 3 Cal.2d 427, 429, 45 P.2d 183; Continental Dairy Equip. Co. v. Lawrence, 17 Cal.App.3d 378, 382, 94 Cal.Rptr. 887).

We have reviewed the record carefully and find substantial evidence to support the trial court's findings that respondents did not breach the covenants of the lease. The testimony was in conflict as to each alleged breach; the parties gave detailed testimony as to their version of what transpired after respondents took possession. The effect and value of the testimony and the credibility of the witnesses was a matter for the trial court to determine (See Evid.Code § 312, subsection (b)). Also, when two or more inferences can be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court (Callahan v. Grey, supra, 44 Cal.2d at p. 111, 279 P.2d 963). Respondents' testimony alone is sufficient to support the finding that respondents did not breach the lease.

As to the fourth and fifth causes of action of appellant's complaint, she contends that as a matter of law she is entitled to interest on the $3,998.37 debt admittedly owing by respondents. This debt arose from the sale of hay by appellant to respondents and it was agreed that the weight of the hay would serve as a basis for the price. Since respondents breached a contract to pay a definite sum of money, appellant is entitled to interest on the amount of the debt from the time performance was due (Lineman v. Schmid, 32 Cal.2d 204, 211, 195 P.2d 408). Performance was not due from respondents until after the price had been set by weighing the hay. We find nothing in the record indicating when the hay was actually weighed; appellant's testimony indicates that the hay had not been weighed as of November, 1969. As defined by the pretrial order, the issue is whether appellant was entitled to interest from October 15, 1969, and since respondents' performance was not due on that date, the trial court did not err in deciding the interest claim against appellant.

Appellant next contends that the judgment for respondents on her seventh cause of action for conversion of windrowed hay in the field must be reversed because there is no appropriate finding as to whether respondents converted this hay. Appellant testified that she and respondents had an oral agreement that they would irrigate and ionize the fields and slope the corral in return for the cut hay in the fields; she testified that respondents performed this work. The evidence is uncontradicted that respondents were to receive the hay in the field in return for the work which they performed. Thus, the trial court erred in not finding that respondents did not convert the hay because they had fully performed the oral agreement with appellant and thereby acquired ownership of the hay. Because the case is to be remanded for further proceedings on the second cause of action of the cross-complaint, we also order a remand of the seventh cause of action for the purpose of allowing the trial court an opportunity to enter an appropriate finding of fact consistent with its judgment thereon.

We turn now to the judgment in favor of respondents on the second cause of action of the amended complaint. It appears that constructive eviction is respondents' theory of recovery. The trial court found that respondents did not voluntarily leave the premises but were forced therefrom by appellant, and that appellant did not have reasonable grounds to believe that the lease had been breached; on the basis of these findings it awarded damages for a 'wrongful' eviction.

We find no evidence that appellant forced respondents from the ranch other than serving the notice to quit. This fact distinguishes the case from those situations where the lessor's physical acts on the premises substantially interfered with the tenant's possession and quiet enjoyment, thereby causing the tenant to quit the premises (see Pierce v. Nash, 126 Cal.App.2d 606, 272 P.2d 938).

Appellant contends that the letter of February 17, 1970 compels a finding that respondents voluntarily left the ranch because they agreed to a cancellation of the lease in exchange for appellant's agreement not to prosecute the unlawful detainer action. However, the letter expresses a hope for a settlement of '. . . present existing problems arising under the lease . . .', and from this it reasonably may be inferred that the parties reserved the right to litigate a past breach in the event the controversy was not settled. The fact that appellant filed the present action approximately six days after the date of the letter, alleging a breach of the lease by respondents, supports such an inference. The notice to quit adequately supports a finding that respondents did not voluntarily quit the premises.

The trial court next found that appellant did not have reasonable grounds to believe the lease had been breached by respondents. ³ In determining whether a landlord has probable cause to believe that a tenant has breached the lease, the court must apply an objective standard, i.e., would a reasonable and prudent lessor, under similar circumstances and knowing what the lessor in question knows, have concluded that the tenant had violated the covenants of the lease. (See Black v. Knight, 44 Cal.App. 756, 769, 187 P. 89.)

Where the facts are in dispute, or...