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Court of Appeal, Second District, Division 4, California.

Terri MARSH, et al., Plaintiffs and Appellants, v. CENTRAL LITHOGRAPH COMPANY, Defendant and Respondent.

No. B031379.

Decided: July 28, 1988

Roger Franklin, Encino, for plaintiffs and appellants. Kassan & Kassan and Melvin E. Kassan, Encino, for defendant and respondent.

This appeal is from an order of dismissal after a demurrer was sustained without leave to amend in an action for unlawful detainer brought by Terri Marsh and Catherine Moss (appellants) against Central Lithograph Company (respondent).

In their first amended complaint, appellants allege a half-interest in property situated at 1515 Hope Street in Los Angeles.   Appellants are tenants in common with Helene Burstein.   The property is occupied by respondent under a written lease entered into in October 1966 between Aaron Burstein and Marvin Moise, as lessees, and appellants' predecessors in interest.

The term of the lease is “for such period that the lessees occupy the above premises pursuant to that certain agreement dated October 15, 1966 wherein Lessees contracted to acquire the printing business of Central Lithograph Company.”   A monthly rent of $600 was to be paid “as long as Lessees occupy said premises, ․” The rent was eventually increased to $650 per month.   Based on this language, appellants allege the lease created a month-to-month tenancy.

On June 21, 1987, appellants served upon respondent a notice to change terms of tenancy whereby they increased respondent's rent to $4,000 per month as of August 1, 1987.1  When respondent failed to pay the increased rent, appellants served upon it a notice to pay rent or quit pursuant to Code of Civil Procedure section 1161.2  Respondent neither paid rent nor quit the premises and appellants commenced the instant action with a complaint filed on September 11, 1987.

Respondent demurred to the complaint on two grounds.   First, respondent challenged the allegation that it occupied the Hope Street property as a month-to-month tenant.   Rather, respondent argued that the lease created a tenancy for a fixed term so long as respondent occupied the premises pursuant to the agreement by which the original lessees had purchased the printing business operating out of the premises.   Under respondent's view the lease could not be modified during its term except by agreement between the parties.   Second, respondent challenged appellants' standing to maintain the action without the participation or consent of their cotenant, Helene Burstein.

The trial court did not sustain the demurrer on either ground but, rather, on the basis of its belief that the question of whether the tenancy was from month to month or for a fixed term could not be adjudicated in an unlawful detainer action.   The action was dismissed and this appeal ensued.   We affirm.


The trial court sustained respondent's demurrer because it concluded that an unlawful detainer action was not the appropriate vehicle by which to resolve a claim of ambiguity in a written lease.   We agree.

Unlawful detainer is a summary proceeding “for obtaining possession of real property ․ unlawfully detained․”  (Civ.Code, § 792.)  “The purpose of the unlawful detainer statutes is to provide the landlord with a summary, expeditious way of getting back his property when a tenant fails to pay the rent or refuses to vacate the premises at the end of his tenancy.”   (Nork v. Pacific Coast Medical Enterprises, Inc. (1977) 73 Cal.App.3d 410, 413, 140 Cal.Rptr. 734;  Code Civ.Proc., § 1161, subds. 1 and 2.)   In keeping with the summary nature of the remedy, the time periods for pleading and service of process are shorter than in the ordinary civil action.  (Code Civ.Proc., §§ 1166, 1167, 1167.3, 1167.4.)   In addition, the period for setting the matter for trial is also shorter (Code Civ.Proc., § 1170.5);  the action is entitled to priority on the trial calendar (Code Civ.Proc., § 1179a);  and expeditious enforcement procedures are provided (Code Civ.Proc., § 1174, subd. (c)).  Plainly, the expedited procedures in an unlawful detainer action contemplate situations in which the landlord's right to immediate physical possession is the only issue in dispute.  (Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 465, 239 Cal.Rptr. 728 [“in unlawful detainer proceedings, only claims bearing directly upon the right to possession are involved.  [Citation.]”].)

The right to immediate possession is not the issue in the case before us.   Rather, the issue is the interpretation of a written instrument, the lease, which, on its face, does not appear to support appellants' allegation of a month-to-month tenancy.   Only from this allegation does it then follow that appellants could modify the terms of the tenancy by raising the rent upon 30 days' notice (Civ.Code, § 827), and upon respondent's failure to pay the increased rent or quit the premises initiate the instant action.

 The lease, however, purports to create a fixed term tenancy with a monthly rental, not a month-to-month tenancy.   Where a conflict exists between allegations in a complaint and an incorporated writing, such allegations may be disregarded to the extent that they are inconsistent with the writing.  (Nichols v. Canoga Industries (1978) 83 Cal.App.3d 956, 965, 148 Cal.Rptr. 459.)

 Accordingly, the trial court correctly assessed the situation before it as a classic example of bootstrapping;  by initiating the unlawful detainer action the appellants sought to impose their interpretation of the lease upon respondent without any prior judicial ratification of their interpretation.   Contrary to appellants' contention, respondent's claim to be a fixed term tenant finds support in the actual language of the lease.

The court below suggested a declaratory relief action would be the more appropriate mechanism by which to determine the parties' respective rights in the lease.

Code of Civil Procedure section 1060 permits such an action by “[a]ny person interested under a deed, will or other written instrument ” seeking “a determination of any question of construction or validity arising under such instrument or contract.”

“It is elementary that questions relating to the formation of a contract, its validity, its construction and effect, excuses for nonperformance, and termination are proper subjects for declaratory relief.  [Citation.]”  (Fowler v. Ross (1983) 142 Cal.App.3d 472, 478, 191 Cal.Rptr. 183;  Karbelnig v. Brothwell (1966) 244 Cal.App.2d 333, 53 Cal.Rptr. 335 [declaratory relief sought with respect to assignment provision in a lease].)

Although appellants may have recourse to this alternative remedy, our decision does not rest upon its availability to them.   Rather, we conclude, as did the court below, that appellants failed to plead a true unlawful detainer action.

The judgment is affirmed.   Respondent to recover costs on appeal.   Respondent's request for sanctions is denied.


1.   The notice was pursuant to Civil Code section 827 which permits a landlord to change the terms of a month-to-month tenancy by way of written notice “to take effect at the expiration of not less than 30 days․”

2.   Under Code of Civil Procedure section 1161, subdivision 2, a tenant who remains in possession of premises after service of a three-day notice to quit is guilty of unlawful detainer.

WOODS, Presiding Justice.

McCLOSKY and GEORGE, JJ., concur.