MARKHAM v. FRALICK ET AL

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District Court of Appeal, Second District, Division 2, California.

MARKHAM v. FRALICK ET AL.*

Civ. 9481.

Decided: May 05, 1934

Harlan G. Palmer, of Los Angeles, and Charles D. Thompson, of Hollywood, for appellant. Roger Marchetti, of Los Angeles (A. V. Falcone, of Los Angeles, of counsel), for respondents.

In an action in unlawful detainer founded upon a lease of certain real property judgment was rendered in favor of the defendant lessees, from which the plaintiff appealed.

By an instrument in writing executed by the respondents as lessees and William F. Markham, since deceased, as lessor, and dated August 31, 1926, it was agreed that said lessees should have and hold certain real property together with all buildings and improvements thereon for the period of ninety–nine years; that they would pay a sum in cash upon execution of said instrument and stipulated amounts every six months thereafter during the remainder of said leasehold period, together with taxes and assessments “as so much rent.” The property leased consisted of about one block in the city of Los Angeles and a number of dwelling houses for rental to residents. The respondents entered by agent, collected the rents from their tenants who at the time of trial were still in possession, and at all times from the date of said leasehold respondents continued so to occupy said premises. Upon default in payment of taxes, assessments, and certain semiannual amounts, written notice in the usual form demanding that within three days they pay the same or surrender possession was served upon respondents. Thereafter suit was commenced by the executrix of the estate of said deceased lessor praying judgment for restitution of the premises so leased, for the amounts then due and unpaid on account of rent and for taxes and assessments “as so much rent.” All of the foregoing facts were admitted by answer, but possession at any time after service of said notice was denied, and by an affirmative defense said lessees alleged that upon receipt of said three–day notice they caused to be served upon the plaintiff “a notice of compliance by defendants with the provisions and requirements set out in plaintiff's said three–day notice * * * and of the surrendering by defendants of the said premises to the plaintiff.” It was not contended that respondents ever resided upon or physically occupied the premises in question, nor that they assumed actual supervision over or the collection of income from said premises otherwise than by such agent. From the latter's testimony and that of respondent Fralick it appeared upon receipt of said three–day notice and the service of their said “notice of compliance” the respondents obtained from the agent at their office a statement in writing that the latter was on that day advised by his employers that he no longer was their agent and that he was directed so to inform each of their tenants as well as the attorney for their lessor, and that since said date he had done no act or thing intended as the act of either lessee with respect to said premises. It was admitted and the trial court found that notice was not given by either party to the subtenants of the lessor's demands. Judgment was entered in favor of the lessees upon a finding that the lessor was “entitled to take nothing by reason of her complaint.”

It is contended that the mere claim of surrender, disclaimer of agency, and failure to notify or join subtenants was not a sufficient defense to the action against said lessees in unlawful detainer. Section 1161 of the Code of Civil Procedure provides in part: “A tenant of real property * * * is guilty of unlawful detainer, when he continues in possession, in person or by subtenant, * * * after default in the payment of rent * * * and three days' notice in writing, requiring its payment * * * shall have been served upon him and if there is a subtenant in actual occupation of the premises, also upon such subtenant.” Section 1164 thereof provides that: “No person other than the tenant of the premises and subtenant, if there be one, in the actual occupation of the premises when the complaint is filed, need be made parties defendant in the proceeding, nor shall any proceeding abate, nor the plaintiff be nonsuited for the nonjoinder of any person who might have been made party defendant, but when it appears that any of the parties served with process, or appearing in the proceeding, are guilty of the offense charged, judgment must be rendered against him.” As already observed, it was conceded in effect that the respondents appeared, that they were proper parties, and were guilty of the offense charged, and it is the contention of the appellant that it was error to render judgment amounting to nonsuit and to refuse to render judgment against such proper defendants notwithstanding nonjoinder of said subtenants. The Legislature has ordained that a tenant is guilty of unlawful detainer when he continues in possession by subtenant after default in the payment of rent and proper notice to such tenant and subtenant, but there is no penalty or bar to an action embraced in the statute which arises from a failure to press demands upon persons not parties to a lease and who may not be in default or guilty of any charge alleged in the complaint against privies to the lease and responsible to the lessor regardless of the agreement between his lessees and such third parties. As was stated by the District Court of Appeal and quoted by the Supreme Court in Telegraph Avenue Corporation v. Raentsch, 205 Cal. 93, 269 P. 1109, 1111, 61 A. L. R. 366, in response to a contention that section 1161 of the Code of Civil Procedure was inequitable and unfair in that it did not permit of a set–off or counterclaim, “the Code sections relating to unlawful detainer provide a uniform, though special and summary, proceeding for a quick and ready determination of the forfeiture of the lease, and these provisions relate to all actions brought for that purpose. * * * Failure of the respondent (plaintiff therein) to plead that it had served notice on all the subtenants and to join them as parties to the action was raised by demurrer going to the sufficiency of the complaint. It does not appear that the subtenants were in default, and, if they were not, it would certainly have been futile to have given them notice to pay the rent or quit, and it would likewise have been unnecessary to join them as parties defendant in this action.” And in Tujague v. Superior Court, 69 Cal. App. 35, 230 P. 198, 199, therein quoted with approval, it was said that while it may be conceded that the clause of section 1164 of the Code of Civil Procedure providing that “no person other than the tenant of the premises and subtenant * * * need be made parties defendant” amounts to an intimation that the latter are necessary parties, the very next clause, “nor shall any proceeding abate, nor the plaintiff be nonsuited for the nonjoinder of any person who might have been made party defendant, but when it appears that any of the parties served with process, or appearing in the proceeding, are guilty of the offense charged, judgment must be rendered against him,” refutes the contention that such third persons are necessary parties, and that, in an unlawful detainer action, subtenants need not be served, but that, even though there be a nonjoinder, the court is required to proceed and render judgment against the individual properly before the court. This disposes of other questions advanced.

The judgment is reversed, with directions that proper findings of fact and judgment be entered in accordance with admitted allegations of the complaint and with the views herein expressed.

CRAIG, Justice.

We concur: STEPHENS, P. J.; SCOTT, Justice pro tem.

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