Cyrus v. Haveson

• Court: California Court of Appeals
• Writing for the Court: THOMPSON; LILLIE, Acting P.J., and HANSON
• Citation: Cyrus v. Haveson, 135 Cal.Rptr. 246, 65 Cal.App.3d 306 (Cal. App. 1976)
• Decision Date: 27 December 1976
• Parties: Jacqueline CYRUS, Plaintiff and Appellant, v. Alvin HAVESON and Ronnie Nathans, Defendants and Appellants. Civ. 47896.

Page 246

135 Cal.Rptr. 246

65 Cal.App.3d 306

Jacqueline CYRUS, Plaintiff and Appellant, v. Alvin HAVESON and Ronnie Nathans, Defendants and Appellants.

Civ. 47896.

Court of Appeal, Second District, Division 1, California.

Dec. 27, 1976.

Hearing Denied Feb. 23, 1977.

Strumwasser & Leichter and Alexandra Leichter, Beverly Hills, for plaintiff and appellant.

Gallop, Norton & Marshall and Robert L. Fairman, Los Angeles, for defendants and appellants.

THOMPSON, Associate Justice.

The matter at bench involves cross-appeals from a default judgment. Defendants contend: (1) the trial court erred in denying their motion to be relieved from default on the ground of excusable neglect; (2) the court failed to obtain personal jurisdiction because of defective service of summons; and (3) the complaint fails to allege facts sufficient to support exemplary damages. In her cross-appeal, plaintiff contends that the trial court erred when, after referring the assessment of damages to a jury pursuant to Code of Civil Procedure section 585, subdivision 2, it reduced the jury's award from a total of $53,777.97 to $23,277.97 and entered judgment for the smaller amount.

We conclude: (1) the trial court did not abuse its discretion in denying defendants' motion to be relieved from default; (2) service of summons was not defective; (3) the complaint fails to allege facts sufficient to support an award of punitive damages; and (4) the trial court did not err in reducing the jury award. We modify the judgment to eliminate punitive damages and affirm the judgment as modified.

Facts

Plaintiff filed her unverified complaint which commenced the case at bench on February 13, 1974. The complaint, framed in six causes of action, is captioned 'Breach of covenant of quiet enjoyment; forcible entry and detainer; conversion of personal property; damages for trespass; intentional infliction of emotional distress; and negligent infliction of emotional distress.'

Allegations of the first cause of action state that on June 1, 1971, defendants orally leased an apartment to plaintiff on a month-to-month tenancy at $170 per month, and that in violation of the covenant of quiet enjoyment contained in the lease defendants on June 1, 1973, entered the premises and evicted plaintiff, keeping her out of the premises and installing a new tenant in the apartment. There is no factual allegation that the month-to-month tenancy was in effect on June 1, 1973. Damages are asserted for loss of personal property in the amount of $6,000, 'grevious (sic) mental and emotional disgress (sic) to (plaintiff's) general damage' in the amount of $10,000, and the cost of medical attention in an amount not yet ascertained. Exemplary damages of $10,000 are claimed because defendants acted maliciously and wantonly in disregard of plaintiff's rights.

The second cause of action alleges that within the five days preceding June 1, 1973, plaintiff 'was in actual, peaceable and undisturbed possession' of the apartment and that on June 1 defendants, without plaintiff's consent, took possession of the apartment by forcing open the door while plaintiff was absent. The second cause of action of the complaint asserts, also, that on December 12, 1973, and December 18, 1973, plaintiff served upon defendant Haveson notice to surrender possession of the premises and that although more than five days had elapsed since the demand defendants continued in possession. Defendants' use of 'abusive language' to plaintiff in response to her demand for possession is alleged, as is the proposition that defendants' continued possession is 'wilful, intentional, deliberate, and obstinate.' The second cause of action claims damages for use and occupancy of the apartment at the rate of $170 per month for the period of defendants' possession, $6,000 for loss of personal property, and $10,000 in 'general damages' for 'grevious (sic) mental and emotional harm.' Punitive damages are sought because each defendant 'acted maliciously and . . . was guilty of a wanton disregard of the rights of plaintiff in that plaintiff had lawful possession of said premises and had not received notice to quit or consented to defendants entering and taking possession thereof . . ..'

The third cause of action asserts that defendants converted $6,000 in value of personal property owned and possessed by plaintiff. It alleges that '(p) laintiff has suffered great distress of body and mind and has had need of professional medical services in consequence of the unlawful, unjust and wrongful acts of defendants . . .' to plaintiff's damage in an undetermined amount. The third cause of action alleges, also, that 'defendants . . . committed said acts wilfully, wantonly, and maliciously and the natural result of said intentional acts of defendants caused plaintiff severe mental suffering and wounded feelings, and because of such wilfulness and malice, plaintiff seeks punitive damages in the sum of $10,000.00.'

The fourth cause of action asserts plaintiff's right of possession of the apartment and that on June 1, 1973, defendants, without plaintiff's consent, entered it and removed articles of personal property belonging to plaintiff. The cause of action claims damages of $170 per month from June 1, 1973, to the 'present' as 'the reasonable rental value of the premises.' It also asserts that by reason of 'the conduct of defendants, plaintiff has been deprived of her personal property . . ., loss of her dwelling, and has suffered grevious (sic) mental and emotional distress, an inability to pursue her usual activities, loss of sleep and general health, requiring her to seek medical attention . . ..' The fourth cause of action alleges that defendants' conduct in placing another tenant in the apartment was malicious and in wanton disregard of the rights of plaintiff 'in that (defendants) deprived plaintiff of her dwelling and forced her to seek shelter elsewhere.' Exemplary damages of $10,000 are claimed.

The fifth cause of action asserts that defendants were the owners of the apartment of which plaintiff was a tenant and that on June 1, 1973, 'while plaintiff was out of town, defendants entered (the) apartment (and) removed plaintiff's clothing and all her belongings . . ..' It alleges that defendants 'wilfully, maliciously and unlawfully changed the lock on the door of plaintiff's apartment, thereby preventing plaintiff from entering, occupying and enjoying (the) premises.' The cause of action asserts that plaintiff 'has been unable to discover' the whereabouts of the personal property removed by defendants and that '(d)efendants have refused to return the few items of personal belongings of plaintiff, the location of which plaintiff has been unable to ascertain, unless plaintiff signs a 'release' for all of her personal property, although defendants claim to no longer have many items in their possession or refuse to return the same.' The eviction is asserted to have caused plaintiff 'great mental distress' and to have resulted in her becoming ill and unable to attend to her normal daily activities 'to her general damage of $5,000.00.' Exemplary damages of $10,000 are claimed because '(d)efendants' acts of ejection of plaintiff from the premises were wilful, malicious, deliberate and without probable cause.' Damages for medical care in an undetermined amount are also asserted.

While captioned an action for intentional infliction of emotional distress, the fifth cause of action contains no allegation that defendants intentionally inflicted emotional distress upon plaintiff.

The sixth cause of action realleges the fact of the eviction. It asserts that defendants had a duty to proceed by way of service of a notice to quit and 'an unlawful detainer,' and that '(d)efendants breached that duty when they entered upon plaintiff's premises . . ..' The cause of action asserts, also, that defendants 'so negligently took possession of plaintiff's dwelling without making a reasonable effort to determine her whereabouts or reasonable effort to serve her with a notice to quit, . . . that plaintiff was caused . . . to seek shelter with a friend, being denied entrance to her dwelling.' Shock and injury to plaintiff's nervous system and pain and suffering are alleged for which plaintiff seeks damages of $10,000, together with an unascertained amount of medical expense. Damages of $6,000 resulting from the loss of plaintiff's personal property is also claimed by the sixth cause of action.

Summons and unverified complaint were served upon defendants Haveson and Nathans in February of 1974. Nathans immediately contacted Haveson, who had acquired the apartment building from Nathans in 1970. Central National Insurance Company, represented by Devonshire Coverage Corporation for the purpose of investigation and adjustment of claims, had issued its policy of insurance covering the apartment building. Haveson informed Devonshire of the service of plaintiff's complaint.

Devonshire assigned investigation of the matter to James A. Dorman of J. A. Dorman and Associates, a licensed and bonded investigator. On February 26, 1974, Dorman called counsel for plaintiff and informed him that Dorman represented the insurance carrier for Haveson and Nathans. Plaintiff's counsel granted Dorman an open extension of time to answer the complaint. Dorman stated that the matter was one which should be settled.

Nathans called plaintiff's counsel on March 14 and informed counsel that Nathans had no responsibility, having disposed of the property before the incident alleged in the complaint. Plaintiff's counsel advised Nathans to consult his own lawyer. On March 27, plaintiff's counsel, at Dorman's request, mailed him a copy of the summons and unverified complaint. Recognizing for the first time on May 14, 1974, the legal requirement for verification of a complaint charging forcible detainer, plaintiff's counsel caused a verification of the complaint to be filed on...