334-99 LANDLORD: DAMAGES § 334.61[5)[h] removal. Moreover, if the tenant wrongfully evicted elects to sue in tort, damages may be awarded for mental anguish and pain or physical injury. Punitive damages may also be recovered when the landlord's conduct justifies the award [Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 926, 162 Cal. Rptr. 194; see_ Paragraphs 39 and 40 of above complaint]. Punitive damages are recoverable when malice, oppression, or fraud is shown by clear and convincing evidence (Civ. Code § 3294(a)]. [h] Other Torts Other potential theories of liability in tort would include both intentional and negligent misrepresentation if the defendant knew but concealed the existence of the conditions rendering the premises unfit for human occupation at the time the premises were rented or otherwise misrepresented them. For a general discussion of misrepresentation and forms of complaints for use in these actions, see Ch. 269, Fraud and Deceit. (Mathew Bender & Co, Ine) (Rei210-1195 Pasi)§ 334.62[1] FORMS 334-100 § 334.62 Complaint by Tenant Against Landlord for Actual and Punitive Damages for Wrongful Eviction [Civ. Code §§ 3294, 3300, 3333] U] FORM SUPERIOR COURT OF CALIFORNIA, COUNTY OF lor other as appropriate] ec NO. Plaintiff, | COMPLAINT FOR DAMAGES (Wrongful Eviction) vs. [namefs)], Defendant(s). Plaintiff alleges: 1. [Capacity and residence of defendant. See § 334.50[1), 1. | (2. Fictitious name allegation, if appropriate. See § 334.50/1], 12.) 3. On or about _______ [date ], defendant leased to plaintiff certain premises known as ______ [street address and city], California, under a written lease. [OPTIONAL: A true and correct copy of the lease is attached to this complaint as Exhibit A and is incorporated into this complaint by reference.] 4, Plaintiff has duly performed all conditions, covenants, and promises required to be performed by him/her under the lease in accordance with its terms and conditions, except for those acts that have been prevented, delayed, or excused by acts or omis- sions of defendant. [EITHER] 5. On or about [date], defendant wrongfully evicted plaintiff from the premises by ______ [specifiy nature of act(s) constituting actual eviction]. [oR] 5. Onor about [date ], defendant interfered with plain- tiffs right to quiet enjoyment of the premises by —_____ Ispecify nature of act(s) constituting constructive eviction]. As a (Mathew Bender & Ca, Ine.) @2eL110-1195 Pas)334-101 LANDLORD: DAMAGES § 334.62[1] result of defendant's interference, plaintiff vacated the premises on [EITHER, if action is for breach of contract} 6. The total amount of rent payable under the terms of the lease from [date of eviction], to [date lease termi- nates], is the sum of $_____. The rental value of the lease for the same period is $_____ [greater amount]. 7. As a proximate result of defendant's _______ [actual or constructive] eviction of plaintiff from the premises, plaintiff sus- tained general damages in the sum of $______ [difference be- tween rent reserved and fair rental value of premises]. IOR, if plaintiff sues in tort) 6. As a proximate result of defendant's ______ actual or constructive] eviction of plaintiff from the premises, plaintiff suf- fered mental anguish and pain [and physical injury], all to his/ her general damage [in the sum of $____]. [7. As a further proximate result of defendant's conduct and plaintiffs mental anguish and pain (and physical injury), as alleged in this complaint, plaintiff was required to and did incur medical and related expenses, all to his/her special damage (in the sum of $____).] [CONTINUE] 8. As a further proximate result of defendant's conduct as alleged in this compliant, plaintiff was required to and did incur moving expenses in the sum of $____. 9, ____[Allege in this and subsequently numbered para- graphs any additional special damage and amounts necessary to compensate plaintiff for all detriment proximately caused by eviction or likely to result from it). IADD, if action is in tort] 10. Defendant's ____ factual or constructive] eviction of plaintiff from the premises was oppressive and malicious within the meaning of Civil Code Section 3294 in that it subjected plaintiff to cruel and unjust hardship in willful and conscious disregard of plaintiff's rights and safety of the plaintiff, thereby entitling plaintiff to an award of punitive damages. WHEREFORE, plaintiff prays judgment as follows: 1, For general damages in the sum of $. A [2. For medical and related expenses ________ (in the sum of $. or according to proof): (Manhew Bender & Ca, Ine.) eLNO-1195 Pob.81)§ 334,62[2] FORMS. 334-102 3. For moving expenses in the sum of $____; 4. For ____ [state here and in subsequently numbered paragraphs, any additional special damages sought |; [5. For punitive damages in an amount necessary to punish defendants;] 6. For costs of suit herein incurred; and 7. For such other and further relief as the court may deem proper. —________ [firm name, if any] By ee EE sigactre) [typed name] Attorney for Plaintiff [Verification, if desired, See § 334.50[1].] [2] Use of Form ‘The form in [1], above, may be used when a tenant has been either actually or constructively evicted from the premises by the landlord. For alternative allegations that may be used in lieu of Paragraph 5 and the first alternative Paragraphs 6 and 7, see § 334.63[1]. [3] Wrongful Eviction A tenant who is wrongfully evicted by his or her landlord may recover damages for the eviction, regardless of whether the eviction is actual or constructive [Pierce v. Nash (1954) 126 Cal. App. 2d 606, 612-615, 272 P.2d 938 (constructive eviction); Saferian v. Baer (1930) 105 Cal. App. 238, 243, 287 P. 142 {actual eviction)]. An eviction may be unlawful even though not accompanied with threats, violence, or abusive language [Rich- ardson v. Pridmore (1950) 97 Cal. App. 2d 124, 130, 217 P.2d 113}. PRACTICE TIP: Local Eviction Controls. Local eviction controls may provide a different definition of wrongful eviction for violation of the ordinance encompassing acts of a relatively low level of conduct, such as a wrongful oral demand for possession. By Benjamin Kaplan Moreover, the tenant does not need to show that the landlord acted with bad faith [Pierce v. Nash (1954) 126 Cal. App. 2d 606, 612, 272 P.2d 938]. (Maw Bender & Coy oe) (BLII0-1108 Pubs!)334-103 LANDLORD: DAMAGES § 334.62[65] ‘The willful eviction ofa tenant constitutes a breach of contract, and thus an action for wrongful eviction is contractual in nature {Richardson v. Pridmore (1950) 97 Cal. App. 2d 124, 129, 217 P.2d 113; see Nathan v. Locke (1930) 108 Cal. App. 158, 161-162, 287 P. 550]. PRACTICE TIP: Attorney's Fees. Therefore, if the lease has an attorney's fees provision, the prayer should include a request for attorney's fees. By Myron Moskovitz However, one suffering mental anguish and pain or physical injury as a proximate result of an eviction may waive the breach of contract action and sue in tort [Richardson v. Pridmore (1950) 97 Cal. App. 2d 124, 129, 217 P.2d 113 (mental anguish); see Goldman v. House (1949) 93 Cal. App. 2d 572, 576, 209 P.2d 639 (personal injuries); Emden v. Vitz (1948) 88 Cal. App. 24313, 316-319, 198 P.2d 113 (mental suffering)]. [4] Acts Constituting Actual Evictions A tenant who has been actually evicted from his or her prem- ises may sue for the wrongful eviction. Acts that constitute actual evictions include: + The landiord’s retaking possession of the premises and excluding the tenant from the premises [Landon v. Hill (1934) 136 Cal. App. 560, 562-566, 29 P.2d 581); and The landlord's breaking into the premises, throwing out the tenant's personal property, and refusing to allow the tenant back on the premises [Saferian v. Baer (1930) 105 Cal. App. 238, 241-243, 287 P. 142]. If there was no actual eviction, but the landlord trespassed, the tenant may wish to sue the landlord for the trespass [see Ch. 550, Trespass ]. The tenant under these circumstances may also want to consider an action for forcible entry and forcible detainer under Code Civ. Proc. §§ 1159, 1160. [5] Acts Constituting Constructive Evictions Any interference by the landlord by which the tenant is de- prived of the beneficial enjoyment of the premises amounts to a constructive eviction if the tenant so-elects and surrenders possession [Kulawitz v. Pacific Woodenware & Paper Co. (1944) 25 Cal. 2d 664, 670, 155 P.2d 24]. Thus, a constructive eviction occurs when the acts or omissions of a landlord, or any distur- bance or interference with the tenant's possession by the (eto Beater & Co, Inc) et10-1185 Punish§ 334.62(5] FORMS 334-104 landlord, renders the premises, or a substantial portion of the premises, unfit for the purposes for which they were leased, or has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises. Abandon- ment of the premises within a reasonable time after the land- lord’s wrongful act of is essential to enable the tenant to claim a constructive eviction [Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 925-926, 162 Cal. Rptr. 194]. ‘The following are examples of when a landlord commits a constructive eviction: + Serving a notice to quit the premises with malice and with- out probable cause to believe that the tenant breached the lease when the landlord does not physically interfere with the tenant’s possession [Asell v. Rodrigues (1973) 32 Cal. App. 3d 817, 823-825, 108 Cal. Rptr. 566]; + Permitting the premises to become infested with vermin {Buckner v. Azulai (1967) 251 Cal. App. 2d Supp. 1013, 1015, 59 Cal. Rptr. 806]; + Failing to repair residential premises and keep them in a condition suitable for the purposes for which they were leased [Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 926, 162 Cal. Rptr. 194 (adding that whether premises were abandoned within a reasonable time would be a jury question)]; + Failing to make necessary repairs in accordance with the terms of the lease or other agreement [Groh v. Kover's Bull Pen, Inc. (1963) 221 Cal. App. 2d 611, 613-615, 34 Cal. Rptr. 637]; + Installing supports that interfere with the intended use of the premises [Pierce v. Nash (1954) 126 Cal. App. 2d 606, 612-617, 272 P.2d 938}; + Failing to provide free water, storage space, and adequate ingress and egress over the lessor's property, all in violation of the parties’ intentions [Sierad v. Lilly (1962) 204 Cal. App. 2d 770, 773-775, 22 Cal. Rptr. 580}; * Continuing a program of harassment against the tenant designed to injure the tenant's business and the quiet enjoyment thereof [Aaker v. Smith (1948) 87 Cal. App. 2d 36, 43-46, 196 P.2d 150); + Terrorizing the tenant [Sanders v. Allen (1948) 83 Cal. App. 2d 362, 366-367, 188 P.2d 760); + Breaching a restrictive covenant prohibiting a competing business on the premises [Kulawitz v. Pacific Woodenware & Paper Co. (1944) 25 Cal. 2d 664, 669-671, 155 P.2d 24]; (ofamew Bender & Ca. Ine.) (oL110-1195 Pobtst)334-105, LANDLORD: DAMAGES § 334.62[8] + Breaching an agreement to furnish heat [Veysey v. Mori- yama (1921) 184 Cal. 802, 805-806, 195 P. 662, 20 ALR. 1363 (dictum)]; and + Cutting off water and boarding up windows necessary for light and air [Clark v. Koesheyan (1915) 26 Cal. App. 305, 307-308, 146 P. 904}. [6] Acts Not Constituting Constructive Evictions There is no constructive eviction when the landlord makes a good-faith resort to legal process [Asell v. Rodrigues (1973) 32 Cal. App. 3d 817, 824, 108 Cal. Rptr. 566 (dictum)], when the acts of the landlord or his or her agent are no more serious than a trespass [North Pac. S.S. Co. v. Terminal Inv. Co. (1919) 43 Cal. App. 182, 189, 185 P. 205], or when the landlord only interferes with a portion of the property that is merely a convenience, such as a back door or parking lot [see Corwin v. Hamilton (1957) 154 Cal. App. 2d 829, 832-833, 317 P.2d 139]. [7] General Damages An eviction entitles a tenant to recover any damages he or she may have sustained [Saferian v. Baer (1930) 105 Cal. App. 238, 244-245, 287 P. 142]. The amount of recovery is governed by Civ. Code § 3300 [Standard Livestock Co. v. Pentz (1928) 204 Cal. 618, 642-643, 269 P. 645]. Civ. Code § 3300 provides that the measure of damages for the breach of an obligation that arises from a contract is the amount that will compensate the party aggrieved for all the detriment proximately caused thereby or that, in the ordinary course of things, would be likely to result therefrom. Thus, a tenant who has been wrongfully evicted can recover general damages, which are measured by the difference between the actual fair market value of the unexpired term at the time of the eviction and the rent reserved; stated differently, the measure of damages is the difference between the present rental value and the agreed rent [Landon v. Hill (1934) 136 Cal. App. 560, 566, 29 P.2d 581]. If the wrongfully evicted tenant elects to sue in tort, general damages may be awarded for mental anguish and pain or physical injury [Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 926, 162 Cal. Rptr. 194]. (8] Agricultural Land When a tenant has been wrongfully evicted from agricultural land, the measure of damages is the value of the crop that might be grown on the leased premises during the lease's term, less the Cashew Bender & Ca, ne) ai0-11R5 mass)§ 334.62[9] FORMS 334-106 cost of raising and harvesting it [Wells v. B.F. Porter Estate (1928) 205 Cal. 776, 780, 272 P. 1039]. [9] Special Damages The tenant's recovery in a wrongful eviction action is not limited, however, to the value of his or her leasehold interest. Independently of the general damages ordinarily recoverable, the tenant may recover special damages naturally and proximately resulting from the eviction [Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 926, 162 Cal. Rptr. 194; Landon v. Hill (1934) 136 Cal. App. 560, 566, 29 P.2d 581]. These include necessary moving expenses [Beckett v. City of Paris Dry Goods Co. (1939) 14 Cal. 2d 633, 638, 96 P.2d 122; Klein v. Lewis (1919) 41 Cal. App. 463, 467, 182 P. 789]; loss of good will [Schuler v. Bordelon (1947) 78 Cal. App. 2d 581, 586, 177 P.2d 959; Landon v. Hill (1934) 136 Cal. App. 560, 566, 569, 29 P.2d 581]; any sum advanced for future rent [Sierad v. Lilly (1962) 204 Cal. App. 2d 770, 775, 22 Cal. Rptr. 580; Johnson v. Snyder (1950) 99 Cal. App. 2d 86, 89, 221 P.2d 164]; the cost of removing the tenant's fixtures [Johnson v. Snyder (1950) 99 Cal. App. 2d 86, 90, 221 P.2d 164], or, if the improvements are permanent ones, which the tenant has no right to remove, the reasonable value of the improvements for the remaining term of the lease [Asell v. Rodri- gues (1973) 32 Cal. App. 3d 817, 826, 108 Cal. Rptr. 566]; the loss of prospective profits for the balance of the lease [Pierce v. Nash (1954) 126 Cal. App. 2d 606, 622, 272 P.2d 938; Aaker v. Smith (1948) 87 Cal. App. 2d 36, 47, 196 P.2d 150] if the business is an established one [Landon v. Hill (1934) 136 Cal. App. 560, 567, 29 P.2d 581); and, when pleaded specially, loss of earnings attributable to the landlord's actions [Tooke v. Allen (1948) 85 Cal. App. 2d 230, 237-238, 192 P.2d 804]. The tenant may not, however, recover both future loss of profits and the difference between present value and agreed value, because the loss of profits already includes consideration of the rent paid [Landon v. Hill (1934) 136 Cal. App. 560, 566-567, 29 P.2d 581]. If the tenant sues in tort and the landlord has been guilty of fraud, oppression, or malice, exemplary, or punitive, damages may also be recovered [see Civ. Code § 3294(a); Stotber v. Honey- chuck (1980) 101 Cal. App. 3d 903, 926, 162 Cal. Rptr. 194; Beckett v. City of Paris Dry Goods Co. (1939) 14 Cal. 2d 633, 639, 96 P.2d 122; Tooke v. Allen (1948) 85 Cal. App. 2d 230, 239, 192 P.2d 804]. (otatiew Bender & Co, tne) (Rel 110-1185. Pubs)334-107 LANDLORD: DAMAGES § 334.63[2] § 334.63 Allegation of Wrongful Eviction of Tenant by Landlord; Actual Eviction by One With Paramount Title [1] FORM 1. By the lease, defendant _______ [either impliedly or ex- pressly] covenanted that plaintiff should have quiet enjoyment and possession of the leased premises during the lease’s term. 2. In breach of this covenant and on or about Idate}, one ______ [name], who at all times mentioned in this com- plaint was, and still is, owner of the leased premises under a title paramount to that of defendant, entered on the premises and evicted plaintiff from the premises by due process of law, and ever since has kept plaintiff out of possession of the premises. 3. ____[Allege general damage, e.g., At the time of the eviction alleged in this complaint, the rental value of the property was &. per (e.g., month), for a total rental value of $ for the balance of the lease’s term, whereas the rent reserved under the lease’s term was $. per (eg., month) for a total reserved rent of $______ for the balance of the lease’s term. As a proximate result of defendant's breach of covenant and plaintifi’s eviction from the premises, as alleged in this complaint, plaintiff has sustained general damages in the amount of $. (rental value for balance of term less amount of rent reserved)]. 4. As a further proximate result of defendant's breach of covenant and plaintiff's eviction, as alleged in this complaint, plaintiff _____ allege any special loss or harm suffered in person or property, e.g., was required to and did employ and pay the firm of _____ (name) the sum of $ to move plaintiff's merchandise, equipment, supplies, furnishings and furniture, and other personal property from the premises to —______ (new adadress)], to plaintiff's further damage in that sum, 5. ______ [Continue, alleging in this and subsequent num- bered paragraphs any additional special damage suffered in person or property and the amount of special damages sustained }. [2] Use of Form The form in [1], above, are allegations for use in a complaint for damages for a landlord's breach of the covenant of quiet enjoyment when the tenant is evicted by a person with (fachow Bender & Ca, Ine.) (aL LIO-1195 Pabst)§ 334.63[3] FORMS 334-108 paramount title. The implied covenant of quiet enjoyment and possession has been held to contain the lessor's agreement in a lease to insure the lessee quiet possession of premises during the lease’s term against all persons lawfully claiming the prem- ises [Standard Livestock Co. v. Pentz (1928) 204 Cal. 618, 638, 269 P. 645; see Civ. Code § 1927]. The above allegations may be substituted for Paragraph 5 and the first alternative Para- graphs 6 and 7 in § 334.62[1]. [3] Attorney’s Fees A tenant may be able to recover the attorney's fees incurred in defending his or her possession against a person claiming a paramount title when the tenant notified the landlord of the action and requested that the landlord defend against it [see Standard Livestock Co. v. Pentz (1928) 204 Cal. 618, 631-633, 269 P. 645; Levitzky v. Canning (1867) 33 Cal. 299, 308]. A tenant may not, however, recover attorney's fees when the action against which the tenant must defend was brought by the lessor rather than a third person claiming paramount title, except to the extent the recovery is authorized by the lease's terms [Stock- ton Theatres, Inc. v. Palermo (1954) 124 Cal. App. 2d 353, 354-368, 268 P.2d 799; see Civ. Code § 1717]. [4] Cross References For a discussion of the kinds of damages and sample allegations, see Ch. 177, Damages. (Mashew Bender & Co, tse.) (et t10-1085 PebI81)