Lydon v. Beach

California Court of Appeal Feb 7, 1928 No. Docket No. 6137.Published

Before: Welch

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Holding. The court held that the evidence supported the trial court's findings that the appellants committed assault and battery upon the respondent, and that the landlord lacked the legal right to forcibly evict the tenant without proper notice. Furthermore, the court affirmed the denial of a new trial, noting that newly discovered evidence of an impeaching nature is insufficient to warrant a new trial.

Issues

Whether the evidence was sufficient to support the trial court's findings regarding the assault and the respondent's lawful possession of the premises.
Whether the landlord had a legal right to forcibly remove the tenant without proper notice under the Civil Code.
Whether the trial court erred in denying a motion for a new trial based on newly discovered evidence of an impeaching character.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We have examined the evidence brought up in the bill of exceptions and find that it is sufficient to support the decision.”

“The three days’ notice conferring on the landlord the right to re-enter and remove his tenant on the ground that the tenant is in arrears of rent must be given after the rent is due or the breach of the lease is made.”

“Appellate courts will not disturb the order of the lower court denying motion for a new trial based on newly discovered evidence where the evidence is of an impeaching character only.”

WELCH, J.,

pro

tem.

Action for damages for assault and battery by appellants on the respondent and for exemplary and punitive damages.

The court rendered judgment for $297 actual damages and $500 by way of exemplary and punitive damages. A motion for a new trial was made and denied. The appeal is from the judgment upon the judgment-roll and a bill of exceptions.

The complaint alleges that appellants Jefferson J. Loque and Myers on August 28, 1923, violently and maliciously assaulted respondent; that they beat, kicked, choked, and struck him numerous blows; that they bit his right ear and bruised him upon his body, neck, hip, and person; that each and all of said acts were done by said Loque and Myers under the direction and authority and at the request of their co-defendant Mrs. Beach Loque (whose name was Maude Beach at the time of the alleged battery); that each of said acts was done through ill will and malice toward respondent.

The appellants answered separately. Mrs. Loque denied specifically the allegations of the complaint. Myers denied specifically the allegations of the complaint and set up as a separate defense that the respondent on the occasion alleged in the complaint first wilfully and without just cause or any cause violently assaulted him; that he, Myers, resisted said assault, using only such force as was necessary to repel respondent, to wit, that he held respondent so that respondent could not strike or kick him and carried respondent from the room in which the assault took place. In addition to his answer Myers in a so-called cross-complaint claimed damages against respondent in the sum of $510. Appellant Loque in his answer denied making an assault upon respondent and set up as a separate defense that on August 28, 1923, respondent was unlawfully on certain premises and in the house of Mrs. Beach (whom he afterward married), in the city of Los Angeles; that Myers and he were guests of Mrs. Beach; that respondent was requested to leave said house and premises, but that said

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respondent refused so to do, but, on the contrary, violently assaulted Myers; that he, Loque, went to the assistance of Myers and that he used such force only as was necessary to resist said assault of respondent, to wit, that he and Myers seized respondent so that he could not strike or kick them and carried respondent from the room in which said assault took place.

Lydon v. Beach

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WELCH, J.,

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