KINNEY v. VACCARI (1979)

Plaintiffs¹ commenced this action for injunctive relief, imposition of penalty pursuant to Civil Code section 789.3, and for damages against appellants Elmer Vaccari Sr. and Elmer Vaccari Jr.² (hereinafter defendants). Plaintiffs, tenants of defendants, alleged that defendants intentionally and without cause terminated gas and electrical services to plaintiffs.

Following a nonjury trial judgment was entered against Elmer Vaccari Sr. and Elmer Vaccari Jr. for compensatory damages in the sum of $7,901, for Civil Code section 789.3 penalty in the sum of $36,000, for attorney's fees in the sum of $5,600, and against Elmer Vaccari Jr. for punitive damages in the sum of $1,750.

The appeal is from the judgment and plaintiffs have cross-appealed “from that portion of such judgment which provides that under Civil Code s 789.3(b)2 plaintiffs are only entitled to a daily assessment of $100.00 per day for each ‘tenancy,’ rather than $100.00 per day for each resident of the tenancy.”

Elmer Vaccari Sr. owns property in Guerneville, consisting of 16 rental units know as Elmer's Cabins. Elmer Vaccari Jr. was the manager of Elmer's Cabins and was responsible for collecting rent and maintaining the cabins.

As of February 1, 1974, plaintiffs occupied six cabins on a month-to-month tenancy. Rent paid by the plaintiffs included gas, electricity and water. Although defendant Elmer Vaccari Jr. had collected over $900 in rent during January 1974, he failed to pay the gas bill of $492.11 before February 1, 1974, with full knowledge that the gas supply to plaintiffs' cabins would be shut off. It was his intention to force plaintiffs out of the cabins.

On February 1, 1974, Blue Star Gas terminated gas services to plaintiffs' cabins. Also on February 1, 1974, defendant Elmer Vaccari Jr. disconnected the wiring which provided electrical service to the plaintiffs' cabins. Electrical service was restored the following day after plaintiffs reconnected the wiring. Thereafter, defendant Elmer Vaccari Jr. refused to accept rent from the plaintiffs for the months of February and March even though the rental payments would have been sufficient to pay the gas bill.

Although a temporary restraining order directing defendants to pay the gas bill was filed on February 5, 1974, the gas bill was not paid until March 22, 1974. Gas service to plaintiffs' cabins was restored on April 1, 1974.

1 During the two month absence of gas service, plaintiffs, including eight children, one newborn child on February 21, 1974, were forced to live in extremely cold, disagreeable and uncomfortable conditions. Several plaintiffs had to purchase heating and cooking equipment to ameliorate the living conditions.

1 Civil Code section 789.3 imposes a $100 per day penalty against a landlord who wilfully deprives the tenant of utility services with the intent to terminate the occupancy. Section 789.3 specifically 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.”

Defendants contend that Civil Code section 789.3 denies the landlord the constitutional guarantees of due process and equal protection. The California Supreme Court had considered these issues and concluded in Hale v. Morgan (1978) 22 Cal.3d 388, 149 Cal.Rptr. 375, 584 P.2d 512, that equal protection principles are not violated by section 789.3. A landlord may be ignorant of the law and still be subject to the section's penalties. As to the due process challenge, the court stated: “In summary, operation of the penalty provided by section 789.3 is mandatory, mechanical, potentially limitless in its effect regardless of circumstance, and capable of serious abuse. Its severity appears to exceed that of sanctions imposed for other more serious civil violations in California and for similar prohibited acts in other jurisdictions. For all of the foregoing reasons in combination, we hold that section 789.3 may, under circumstances such as those herein presented, produce constitutionally excessive penalties.

“We cannot conclude, however, that all applications of section 789.3's penalty formula would be unconstitutional. The imposition of the $100 daily penalty over a limited period may indeed, in a given case, be a perfectly legitimate means of encouraging compliance with law. Furthermore, there are doubtless some situations in which very large punitive assessments are both proportioned to the landlord's misconduct and necessary to achieve the penalty's deterrent purposes.” (Hale v. Morgan, at p. 404, 149 Cal.Rptr. at p. 385, 584 P.2d 512, 522.) The Hale court held that the assessment of a penalty of $17,300 was clearly, positively, and unmistakably unconstitutional.

We recognize that the circumstances in Hale were not as reprehensible as those in the present case. In Hale defendant landlord owned a small mobile home park in South Lake Tahoe. In February 1975, plaintiff moved his mobile home into the park without defendant's knowledge or consent. Later, the parties agreed to a $65 monthly rental which included water and garbage but not electricity. Following plaintiff's failure to pay rent for three months, defendant disconnected the water and electrical lines to plaintiff's mobile home. Thereafter, from late May until November, plaintiff lived, alternately, in his mobile home and in his sister's home. The Supreme Court reversed the trial court's assessment of section 789.3 penalties which amounted to $17,300 for the 173 days plaintiff was deprived of utility services. Although the court censured defendant's termination of utility services, the court noted that plaintiff's initial entry into the park was probably a trespass and his failure to pay rent was a breach of his rental contract.

Here, the facts are startling especially in light of the fact that several minor children, including a newborn child, were residing in defendants' cabins. Furthermore, plaintiffs were guilty of no wrongdoing.

Defendant Elmer Vaccari Jr. maintained poor relations with plaintiffs, frequently cursed and verbally abused them while under the influence of alcohol.³ During January 1974, defendant Elmer Vaccari Jr. threatened on several occasions to turn off the gas and to “throw you bums out.” Although January rent was paid by plaintiffs,⁴ giving defendant Elmer Vaccari Jr. sufficient funds to pay the gas bill, he refused to make payment on the bill, knowing Blue Star Gas would terminate service to plaintiffs' cabins.

After gas service was terminated on February 1, 1974, plaintiffs attempted to give defendant Elmer Vaccari Jr. rental payment for February as well as March, thereby giving him more than sufficient funds to restore gas service. He refused to accept any rent. He further refused to obey the temporary restraining order of February 5, 1974, directing him to restore gas service. Despite repeated attempts by plaintiffs throughout February and March and despite a court warning on March 6, 1974, defendant Elmer Vaccari Jr. refused to pay the gas bill until March 22, 1974.

The record is void of evidence that plaintiffs precipitated or were responsible in any way for defendant Elmer Vaccari Jr.‘s calculated activities. They were lawfully in possession of the cabins, current with their rental payments and attempted to restore gas service by offering defendant sufficient funds to pay the gas bill.

As stated in Hale, where a penal statute may be subject to both constitutional and unconstitutional applications, courts evaluate the propriety of the sanction on a case-by-case basis. We note that the Hale court stated that the imposition of the $100 daily penalty over a Limited period may be a proper means of encouraging compliance with the law. However, the mechanical assessment of the $100 daily penalty for the entire period of 60 days, for a total of $36,000 for the six tenants is clearly constitutionally excessive.

Since the trial court correctly found that defendant Elmer Vaccari Jr. is an agent of defendant Elmer Vaccari Sr.,⁵ Elmer Vaccari Sr. is also liable for the acts committed by his son while acting in the scope of his employment. Although the refusal to pay the gas bill may have been in excess of defendant Elmer Vaccari Jr.‘s authority, that fact does not relieve defendant Elmer Vaccari Sr. of his respondeat superior liability (see 1 Witkin, Summary of California Law (8th ed. 1973) Agency and Employment, s 155, pp. 754-755; see also Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960, 88 Cal.Rptr. 188, 471 P.2d 988.)

II

Over plaintiffs' objection, defendants introduced into evidence a ledger which listed the expenditures of operating Elmer's Cabins. It was defendants' intention to prove that there were insufficient funds to pay the gas bill which would prove that defendant Elmer Vaccari Jr. did not have the intent to terminate plaintiffs' tenancy. Plaintiffs objected on the ground that the ledger was not a true business record. During voir dire, plaintiffs attempted to prove that entries in the ledger were made after the lawsuit was initiated. Plaintiffs were able to elicit an admission from defendant Elmer Vaccari Jr. that the entries in the ledger were made every two to three months.

Later on, defendants attempted to introduce bank statements to show that the expenditures recorded in the ledger were accurate. The court noted that introduction of bank statements to prove accuracy of the expenditures was unnecessary in light of the fact that plaintiffs' objection was not to the veracity or accuracy of the expenditures, but to the timeliness of the entries. The court may not admit irrelevant evidence. Whether or not the entries in the ledger could be proved by the bank statements was irrelevant since plaintiffs stipulated to the accuracy of the expenditures. The court properly advised defendants that introduction of the bank statements into evidence would be unnecessary.

III

Plaintiffs contend on cross-appeal that the trial court should have assessed the daily penalty as to each plaintiff rather than as to the number of cabins plaintiffs occupied. Sixteen plaintiffs occupied six cabins and, according to plaintiffs, each plaintiff should have received $6,000 for the 60 days each one was without utility services. Instead, the court awarded $6,000 per cabin to be divided among the occupants/plaintiffs of each cabin.

The trial court did not err in construing section 789.3 by defining “tenant” in the plural. Although the Civil Code does not define “tenant” for purposes of section 789.3, it does provide that a word used in the singular should also be read in the plural. (Civ. Code, s 14.)

It is our duty to interpret the statute reasonably and give effect to its purpose. (Zidell v. Bright (1968) 264 Cal.App.2d 867, 71 Cal.Rptr. 111.) A sensible interpretation of section 789.3 and one which would effectuate the apparent intent of the Legislature would be to construe “tenant” as the occupant or occupants of a single rental unit. Thus, a violation occurs when a rental unit is deprived of utility services; the number of renters per unit would not affect the assessment of penalties.

The judgment is reversed and the cause is remanded to the trial court for retrial on the issue of appropriate penalty only. Appellant Elmer Vaccari Sr. to recover costs.

FOOTNOTES

1.  Plaintiffs and respondents are Mike Kinney, Pete Fillipo, Roxanne Fischer, Ray Wendt, Joann McNutt, individually and as Guardian ad Litem of David McNutt, Rachel McNutt, Weylin McNutt and Jenny McNutt, minors, Jim McNutt, Madeline Gregory, individually and as Guardian ad Litem for Zain Kinney, a minor, George Kaliski, Steven Johnson, Barbara Johnson, individually and as Guardian ad Litem for Jacob Johnson and Rebeccca Johnson, minors.

2.  Elmer Vaccari Jr. was named as an appellant in the notice of appeal but did not file a brief on appeal.

3.  Defendant Elmer Vaccari Jr. arrived at court around 10:00 a. m. the second day of trial inebriated after having consumed four vodka and waters that morning. Unable to testify coherently, he was ordered out of the court with an admonition to sober up.

4.  Two tenants were in arrears in rental payments for January. After gas service was terminated on February 1, 1974, they attempted to make a back payment of rent including the present month's rental payment, but defendant Elmer Vaccari Jr. refused to accept any money from them.

5.  Defendant Elmer Vaccari Jr. maintained the cabins and collected the rent. For his services, defendant Elmer Vaccari Jr. received the use of one cabin rent free and retained the profits from operation of the cabins.

CALDECOTT, Presiding Justice.

RATTIGAN and CHRISTIAN, JJ., concur.