Gering v. Church of Realization of Hollywood

FOX, J. In the first cause of action of his amended complaint* * plaintiff alleged that on or about December 10, 1948, the defendant church, acting through its duly authorized agent, defendant Lawrence Elliott, “entered into a lease” with him whereby the church agreed that plaintiff could use a hall belonging to the church for a period of one year in return for plaintiff’s agreement to produce plays in said hall and give the church the income from the sale of tickets. A [632]copy “of such lease” was attached. Plaintiff took possession of the hall the next day and began to conduct his business therein, viz., easting, directing and producing plays. He remained in possession and continued to conduct his business therein until the end of the term, December 10, 1949, and performed all his obligations “under the lease.” He alleged that defendants, however, by a series of harassments, some of which he enumerated, made it impossible for him to conduct his business in an orderly manner. He charged that his business was destroyed, and that he suffered “general damages in the sum of $3,000.00 for breach of the implied covenant of quiet enjoyment.” Plaintiff further alleged that he “was deprived of the actual use of said premises to conduct his business in an orderly manner after May 19, 1949 ’ ’; that “the reasonable value of the loss of the use of said premises is. and has been, at all times herein mentioned, $150.00 per week”; and that “by reason of said deprivation of use, plaintiff was damaged in said sum every week between May 19, 1949, and December 10, 1949, or a total of $4,200.00” (Italics added.)

The trial court found all the allegations of the amended complaint true. It concluded, however, that plaintiff was not entitled to recover any general damages, but was entitled to judgment for $4,200 on his first cause of action. This makes up the principal portion of the judgment, from which defendants appeal.

Defendants contend there is no evidence to support the finding of $4,200 damages on the first cause of action. Their position must be sustained.

Plaintiff’s amended complaint is based on a writing which he designated “a lease,” and which he repeatedly referred to as such. The landlord-tenant relationship is further emphasized by plaintiff’s allegation that he “suffered general damages . . . for breach of the implied covenant of quiet enjoyment.” At the outset of the trial the court’s attention was focused on the theory that plaintiff’s cause of action grew out of a lease, for his counsel advised the court in his opening statement that the acts of the defendants resulted in a constructive eviction of plaintiff. In its findings the court adopted plaintiff’s lease theory of the transaction. Thus the allegation that the church, through its duly authorized agent defendant Lawrence Elliott, “entered into a lease with the plaintiff,” is found to be true, as, of course, are all the other allegations which similarly characterize the transaction.