Pierce v. Nash

• Decision Date: 20 July 1954
• Citation: 126 Cal.App.2d 606,272 P.2d 938
• Parties: PIERCE v. NASH et al. Civ. 19954.
• Court: California Court of Appeals Court of Appeals

Page 938

272 P.2d 938

126 Cal.App.2d 606

PIERCE v. NASH et al.

Civ. 19954.

District Court of Appeal, Second District, Division 2, California.

July 20, 1954.

Rehearing Denied Aug. 6, 1954.

Hearing Denied Sept. 8, 1954.

Glenn R. Watson, Los Angeles, and Robert G. Beverly, Manhattan Beach, for appellant.

Paul J. Otto, Victor Bewley, Los Angeles, for respondents.

FOX, Justice.

This is an appeal by plaintiff from an order granting defendants Gaylord Burke and Robert P. Burke a new trial after judgment for plaintiff. The matter was tried by the court without a jury. Defendants did not take a cross-appeal from the judgment.

The action is for damages for constructive eviction of plaintiff, lessee of the premises here involved. The complaint recites that on April 26, 1948, Harry F. Burke leased these premises, by a writing, for a term of five years, to one R. Crawford. The defendants are alleged to be the successors in interest of Harry F. Burke. On about February 21, 1949, Crawford assigned this lease to the plaintiff. It was alleged that at the time of the execution of the lease and at all subsequent times Crawford and plaintiff were engaged in the business of operating a pool hall or 'snooker parlor;' that the nature of this business required pool tables to be located at intervals sufficient to provide space for plaintiff's customers to move around them without hindrance; that defendants were aware of the characteristics of Crawford's business when the lease was executed and that the lease was made to Crawford for the purpose of carrying on such a business; that on March 13, 1951, defendant commenced erecting supporting posts at intervals throughout the leased premises against plaintiff's wishes and despite his assertion to them that such action would put him 'out of business'; that the presence of the posts made the premises unfit and unsuitable for occupancy as a 'snooker parloer' in accordance with the purpose for which they were rented; that plaintiff was forced to abandon and surrender possession of the premises to defendants on March 27, 1951, and that plaintiff suffered damages as a result of his eviction by defendants.

By way of affirmative defense, the answer alleged that the building here involved, including the premises leased to plaintiff, had become unsafe and its condition was below the minimum safety standards required by the Building Code of the city of Los Angeles; that on about January 8, 1951, the defendants received a notification from the Department of Building and Safety to comply in the following manner with the requirements of the Los Angeles Municipal Code: 'Provide adequate support for second floor where solid plastered partitions were removed'; and that only the repairs and alterations required by law were made.

The court found generally in accord with the allegations of the complaint. The findings stated in part: that after receiving the notice from the city to provide adequate support, defendants filed, on February 7, 1951, an application for a building permit, coupled with plans for the performance of the corrective work by strengthening the existing beams by adding steel U-plates and without the installation of any additional upright supports or parts; that these plans were approved and defendants were granted permission to complete the work as therein provided; that on February 27, 1951, defendants filed another application for a permit, together with plans for the installation of additional upright parts on the premises, in lieu of the work provided for in the prior application; that this second plan was likewise approved and permission to proceed granted; that the supporting posts which defendants thereafter installed on the leased premises from floor to ceiling were so placed that four of the six pool tables could not be used due to inadequate space for movement around them, rendering the premises unsuitable for use as a pool hall and depriving plaintiff of the enjoyment of a substantial portion of the premises; that plaintiff vacated the premises and surrendered possession to defendants, which were thereafter used by defendant Gaylord Burke for the operation of his cleaning business; 'that defendants could have provided adequate support for the second floor by a means other than the installation of additional posts * * * and in a manner that would not interfere with plaintiffs business or render the premises unfit or unsuitable for poool hall purposes or deprive plaintiff of the beneficial enjoyment of said premises;' that defendants knew another means of support was practicable prior to their installation of the posts; that '[I]t is not true that the posts installed by defendants were required by law to be so installed.'

Upon these findings the court concluded that defendants constructively evicted plaintiff from the premises and awarded damages of $4,375.

Defendants' motion for a new trial specified all of the grounds enumerated in section 657 of the Code of Civil Procedure with the exception of subdivision (2) thereof, which was inapplicable as the matter was not tried before a jury. The order granting the new trial was general and did not designate the ground on which it was granted. It must, therefore, be presumed that it was not based on the ground of the insufficiency of the evidence to sustain the decision, Code Civ.Proc. § 657; Renfer v. Skaggs, 96 Cal.App.2d 380, 385, 215 P.2d 487. We are thus precluded from considering the insufficiency of the evidence to support the judgment unless the evidence was without conflict and insufficient as a matter of law. Adams v. American President Lines, 23 Cal.2d 681, 683, 146 P.2d 1; Carvalho v. Lusardi, 114 Cal.App.2d 733, 734, 251 P.2d 37. This point will be discussed below. Furthermore, the grounds set forth in Code of Civil Procedure, sec. 657, subds. (1) and (3), namely, irregularity of the proceedings and accident or surprise, must be supported by affidavits. Code Civ.Proc. § 658. Since no affidavits were filed in support of either of these grounds, it must be likewise presumed that the order was not founded thereon. Gardner v. Marshall American Brake, etc., Company, 24 Cal.2d 686, 690, 691, 151 P.2d 122; Breeze v. Southern Petro Tank Line Co., 5 Cal.App.2d 507, 510, 43 P.2d 584. There is thus left for consideration the following grounds: (1) That the decision is against law; (2) newly discovered evidence; (3) excessive damages; and (4) errors in law occurring at the trial.

Upon an appeal from an order granting a new trial, all intendments favor the order as against the verdict. Abercrombie v. Thomsen, 59 Cal.App.2d 331, 138 P.2d 701. The law is clear that an order granting a new trial will only be disturbed on appeal where there is a manifest abuse of discretion, and that when such an order is in general terms it will be affirmed if it could have been properly granted upon any of the grounds upon which the motion was predicated. Scott v. Times-Mirror Co., 178 Cal. 688, 174 P. 312; Breeze v. Southern Petro Tank Line Co., supra. In conformity with Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 361, 170 P.2d 465, we have therefore reviewed the entire record on which the order was based to discover whether such error appears as would justify the trial court in making its order upon any of the grounds last stated. We have found no error, and are satisfied that the order granting a new trial cannot be upheld.

As is apparent from defendants' brief and their memorandum of points and authorities filed in support of their motion, the most important point argued upon the motion for a new trial was that the decision is against the law. They assert the evidence fails to show any bad faith on their part, and that they only used wooden posts in place of a steel U-beam because steel was unavailable for civilian use because of the Korean hostilities. Hence defendants contend the judgment in the instant case is against law where damages are awarded for a constructive eviction when the issue of their bad faith is absent from the pleadings, evidence, findings of fact and conclusions of law. Their argument proceeds from the premise that even in a case such as is here presented, where the positive acts of the lessor have disturbed the tenant's possession and have so seriously impaired his beneficial enjoyment of the premises that he is compelled to quit them, the tenant may not recover damages without an affirmative showing of bad faith on the lessor's part. But that is not the law.

The lease assigned to plaintiff carried with it, even in the absence of a special covenant for quiet enjoyment, an implied one binding upon the defendants during the continuation of the term, Civ.Code § 1927; Kushner v. Home Service Co., 91 Cal.App. 692, 697, 267 P. 555. Whether expressed or implied, this covenant means that a tenant shall not be wrongfully evicted or disturbed in his possession by the lessor. McDowell v. Hyman, 117 Cal. 67, 69, 48 P. 984; Mills v. Richards, 84 Cal.App. 52, 57, 257 P. 542. The rule is firmly entrenched, and the authorities supporting it are legion, that any disturbance of the tenant's possession by the lessor or at his procurement which renders the premises unfit for the purposes for which they are demised or which has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction, provided the tenant vacates the premises within a reasonable time. Veysey v. Moriyama, 184 Cal. 802, 805, 195 P. 662, 20 A.L.R. 1363; Agar v. Winslow, 123 Cal. 587, 593, 56 P. 422; Sanders v. Allen, 83 Cal.App.2d 362, 366, 188 P.2d 760; Johnson v. Snyder, 99 Cal.App.2d 86, 221 P.2d 164; Riechhold v. Sommarstrom Investment Co., 83 Cal.App. 173, 177, 256 P. 592; Giraud v. Milovich, 29 Cal.App.2d 543, 547, 85 P.2d 182. See, generally, 3 Williston, Contracts, secs. 891 and 892. There is language in some cases which makes the landlord's intention to deprive the tenant of the...