Hale v. Morgan

Decision Date28 September 1978
Docket NumberS.F. 23641
CourtCalifornia Supreme Court
Parties, 584 P.2d 512 Douglas C. HALE, Plaintiff and Respondent, v. Jack MORGAN, Defendant and Appellant.

Ralph E. Kingston, South Lake Tahoe, for defendant and appellant.

Atwell & Henderson, Robert M. Henderson and Michael N. Atwell, South Lake Tahoe, for plaintiff and respondent.

Felice A. Webster, Cary S. Reisman, Kenyon F. Dobberteen, Los Angeles, Gilbert T. Graham, Steinhart, Goldberg, Feigenbaum & Ladar, John Curan Ladd, San Francisco, Peter W. Sly, Oakland, Thomas W. Pulliam, Jr. and Andrea J. Saltzman, San Francisco, as amici curiae on behalf of plaintiff and respondent.


We consider constitutional challenges to Civil Code section 789.3, which assesses a penalty of $100 per day against a landlord who wilfully deprives his tenant of utility services for the purpose of evicting the tenant. We will conclude that the penalties provided by the section, while surviving an attack on the grounds of equal protection of the laws, may, under particular circumstances, violate the due process provisions of both the federal and our state Constitutions, and that the $17,300 sanction herein imposed was excessive. We will, accordingly, reverse the judgment and remand for the determination of a proper award. For purposes of retrial, we also examine an additional issue of statutory construction.

The parties do not dispute the existence of the events of 1975 which are critical to our determination. Defendant landlord, who lived in the San Francisco Bay Area, owned a mobile home park in South Lake Tahoe. In February, plaintiff, without defendant's knowledge or consent, moved his 35-foot mobile home into the park. The parties ultimately agreed orally to a rental space for $65 per month, which figure included water and garbage service but excluded electricity. For the next three months, plaintiff failed to pay any rent. In late May, defendant disconnected the water and electrical lines to the trailer. Thereafter until November, plaintiff lived, alternatively, in the mobile home and in his sister's residence.

In July, defendant filed a small claims action against plaintiff and recovered judgment for $495 in delinquent rent. At approximately the same time defendant removed the tires from plaintiff's vehicle. In August, plaintiff filed the present action for damages and statutory penalties, but defendant did not restore the utilities. Subsequently, defendant sued plaintiff for unlawful detainer, but the record is unclear as to whether a judgment was obtained in the action. In mid-November defendant returned the tires to the mobile home which plaintiff thereupon moved from the park.

In plaintiff's action, after trial the court found that defendant's termination of water and electrical services had been "willful," with the intent to evict plaintiff, and that plaintiff had been deprived of the utility services from May 26 to November 14, 1975, a total of 173 days. The court thereupon assessed penalties under section 789.3 in the sum of $17,300. Defendant appeals from the ensuing judgment.

The statute in question, section 789.3, enacted in 1971, provides: "(a) A landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord. (P) (b) Any landlord who violates this section shall be liable to the tenant in a civil action for all of the following: (P) (1) Actual damages of the tenant. (P) (2) One hundred dollars ($100) for each day or part thereof the tenant is deprived of utility service. (P) (c) In any action under subdivision (b), the court shall award reasonable attorney's fees to the prevailing party."


Initially, we reject plaintiff's contention that, because the constitutionality of section 789.3 was unchallenged in the trial court, presentation of the issue for the first time on appeal is improper. While " 'It is the general rule applicable in civil cases that a constitutional question must be raised at the earliest opportunity or it will be considered as waived' " (Jenner v. City Council (1958) 164 Cal.App.2d 490, 498, 331 P.2d 176, 182), application of this principle is not automatic. Because the central issue before us is the propriety of very substantial Penalties we interpret liberally defendant's attempts to raise error in a penal context. (Cf. People v. Bolinski (1968) 260 Cal.App.2d 705, 722, 67 Cal.Rptr. 347.) The record before us discloses that defendant urged before the trial court that enforcement of section 789.3 under the circumstances would be a "great injustice." We find at least arguable merit in defendant's assertion that constitutional issues were thereby adequately raised below.

Furthermore, even if the issue had not been properly presented to the trial court, we may nonetheless examine the validity of the statute under which penalties herein have been assessed. We have held that a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts. (Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534; see also California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist. (1973) 36 Cal.App.3d 46, 56, 111 Cal.Rptr. 433.) Moreover, although California authorities on the point are not uniform, our courts have several times examined constitutional issues raised for the first time on appeal, especially when the enforcement of a penal statute is involved (e. g., People v. Allen (1974) 41 Cal.App.3d 196, 201, 115 Cal.Rptr. 839), the asserted error fundamentally affects the validity of the judgment (e. g., People v. Norwood (1972) 26 Cal.App.3d 148, 152-153, 103 Cal.Rptr. 7), or important issues of public policy are at issue (e. g., Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 4-5, 97 Cal.Rptr. 431).

In the case before us, defendant's challenge to a statute which is clearly penal presents a question of law directly addressed to the propriety of plaintiff's claim for relief. An important question of public interest is presented. Plaintiff, having been given full opportunity himself and through amici to support application of the statute as to him, does not allege that he will be prejudiced by our examination of defendant's contentions, the merits of which we now consider.


Arguing a violation of equal protection principles, defendant urges that the statute unfairly favors tenants over landlords. He notes that we have held that a landlord's material breach of the lease may justify a tenant in summarily withholding rent (see Green v. Superior Court (1974) 10 Cal.3d 616, 634-635, 111 Cal.Rptr. 704, 517 P.2d 1168). Under section 789.3, in contrast, the landlord is compelled to retain a defaulting tenant, and to pay the tenant's utilities, until an unlawful detainer judgment can be obtained. Defendant describes this result as unequal protection.

However, guarantees of equal protection are not violated by the fact alone that a regulatory scheme treats one class of persons differently from another. It is well established, for example, that where, as here, no " suspect" classification is involved and purely economic interest are at stake, the Legislature may impose any distinction between classes which bears some "rational relationship" to a conceivably legitimate state purpose. (Reed v. Reed (1971) 404 U.S. 71, 75-76, 92 S.Ct. 251, 30 L.Ed.2d 225; McDonald v. Board of Election (1969) 394 U.S. 802, 808-809, 89 S.Ct. 1404, 22 L.Ed.2d 739; Brown v. Merlo (1973) 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785, 87 Cal.Rptr. 839, 471 P.2d 487, vacated on other grounds (1971) 403 U.S. 915, 91 S.Ct. 2224, 29 L.Ed.2d 692.) The Legislature need not address all facets of a problem at once, or at all, but may deal with particular parties and issues in accordance with priorities satisfying to itself. (Williamson v. Lee Optical Co. (1955) 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563; West Coast Hotel Co. v. Parrish (1937) 300 U.S. 379, 400, 57 S.Ct. 578, 81 L.Ed. 703; see Ferguson v. Skrupa (1963) 372 U.S. 726, 732, 83 S.Ct. 1028, 10 L.Ed.2d 93.) It is readily apparent that the dangers posed by utility deprivation as an eviction device are an appropriate subject of legislative attention and sanction.

Defendant also urges that, unless properly construed, the statute violates equal protection principles because it discriminates arbitrarily against two classes of Landlords those who know of section 789.3, and those who do not. Defendant's thesis is that no landlord who is aware of section 789.3 would dare violate it because the penalty is so severe. Thus in practical effect, it is argued, only landlords who are ignorant of the law are subject to its punishment, and this can serve no rational legislative purpose. Defendant interprets the use of the adverb "willfully" in section 789.3 as requiring that the landlord know that he is violating the law when he terminates the tenant's utilities; otherwise, he contends, the statute must fail on equal protection grounds.

We are unable to accept this analysis for several reasons. On its very face, section 789.3 makes no such distinction between "landlords." It applies to all of them and treats them equally. Further, a constitutional distinction between those persons who have actual knowledge of a law and those who do not, directly offends the fundamental principle that, in the absence of specific language to the contrary, ignorance of a law is not a defense to a charge of its violation. (People v....

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