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Court of Appeal, Third District, California.

Douglas C. HALE, Plaintiff and Respondent, v. Jack MORGAN, Defendant and Appellant.

Civ. 16215.

Decided: March 21, 1977

Michael N. Atwell, South Lake Tahoe, for plaintiff and respondent. Ralph E. Kingston, South Lake Tahoe, for defendant and appellant.

This appeal raises issues paralleling those discussed in our decision in Wolff v. Fox, filed today (ante, 137 Cal.Rptr. 258).* Here a tenant sues his landlord for the $100 per day statutory penalty imposed by Civil Code section 789.3 upon an owner of residential property who shuts off his tenant's utility services. The trial court found that defendant had terminated electric and water service to plaintiff's mobilehome for 173 days and awarded plaintiff judgment for $17,300 in statutory penalties plus a $750 attorney fee.

Defendant, the landlord, is a cable television installer who lives in the San Francisco Bay area. He bought a small mobilehome park in South Lake Tahoe, coming there on weekends to operate and maintain it. Without defendant's permission plaintiff moved a mobilehome into one of defendant's rental spaces. A few weeks later, in February 1975, the parties met. Defendant agreed to accept $65 per month rent and to furnish water and garbage service.

Three months passed without payment of any rent whatever. In late May 1975 defendant disconnected the electrical and water connections to plaintiff's mobilehome. Plaintiff moved to his sister's residence in South Lake Tahoe for about a month, then stayed intermittently in the mobilehome and at his sister's house. He testified that after June 1975 he lives ‘sometimes in the trailer, sometimes at [his] sister's.’

In July 1975 defendant recovered a small claims judgment of $495 against plaintiff for back rent. At one point defendant removed the tires from the mobilehome. On November 14, 1975, after defendant secured an unlawful detainer judgment, the tires were restored and plaintiff's mobilehome was moved away from defendant's property. The trial court found that the interruption of utility services lasted from May 26 to November 14, 1975, during which period the parties occupied a landlord-tenant relationship. The findings declare that defendant interrupted the utilities intentionally and with intent to terminate plaintiff's occupancy. In a finding misplaced among the conclusions of law, the trial court also declared that defendant had willfully interrupted the utility services.

The record is devoid of any evidence that when defendant disconnected the utilities he knew that he was committing a prohibited act which might subject him to a cumulative civil penalty. Nor is there any evidence that defendant gained such knowledge at any time during the 173 days of discontinued utility service. Such evidence is indispensable to proof of the statutory element of willfulness. (Wolff v. Fox, supra, 137 Cal.Rptr. 258.)* Thus, the finding of willful interruption of utility services is unsupported by substantial evidence.

Judgment reversed.


FOOTNOTE.  Editor's Note: The Supreme Court granted hearing in this case on June 9, 1977.

FRIEDMAN, Associate Justice.

PUGLIA, P. J., and PARAS, J., concur.