Buck v. Morrossis

• Decision Date: 28 November 1952
• Citation: 250 P.2d 270,114 Cal.App.2d 461
• Court: California Court of Appeals Court of Appeals
• Parties: BUCK et al. v. MORROSSIS. Civ. 15240.

Page 270

250 P.2d 270

114 Cal.App.2d 461

BUCK et al. v. MORROSSIS.

Civ. 15240.

District Court of Appeal, First District, Division 1, California.

Nov. 28, 1952.

Albert E. Polonsky, San Francisco, for appellant.

Norman A. Eisner and Haskell Titchell, San Francisco, for respondent.

PETERS, Presiding Justice.

Plaintiff, as the owners and lessors of business property, brought this action in unlawful detainer and for damages against defendant as the subtenant in possession, and against others not involved on this appeal. Defendant defaulted and judgment was entered decreeing restitution awarding $1,559.52 as treble damages for the unlawful detention computed at $650 per month and fixing $64.98 a day as damages for any additional holding over. Defendant appeals not only from the judgment, but also from an order striking his demurrer from the files. This order is not independently appealable, but is reviewable, if at all, on the appeal from the judgment. Cuddahy v. Gragg, 46 Cal.App. 578, 189 P.721. The appeal from the order should be dismissed. On the appeal from the judgment defendant does not challenge the portion of the judgment decreeing restitution, nor does he make any claim of right to any tenancy in the premises.

The complaint alleges that on August 20, 1946, plaintiffs leased the premises to one Cator for five years, expiring August 19, 1951; that on May 22, 1947, plaintiffs, in writing, consented to an assignment of the lease to one Hirsch, also named as a defendant, but later dismissed as a party; that defendant thereafter entered into possession of the premises under Hirsch; that the term of the lease had terminated; that defendant thereafter continued in possession without permission of plaintiffs and contrary to the terms of the lease; that plaintiffs had entered into a new lease with third parties at an increased rental whereby they were required to deliver possession of the premises to the new tenants on August 20, 1951; that on April 10, 1951, plaintiffs had served a written notice on Hirsch that his lease would not be renewed and that he must vacate on or before August 19, 1951; that on August 3, 1951, a similar notice was served upon both Hirsch and defendant; that on August 7, 1951, plaintiffs' attorney was notified that defendant had no intention of vacating the premises on the termination date of the lease but intended to remain in possession during the period of any litigation brought to evict him; that defendant 'deliberately, intentionally, obstinately and maliciously' retains possession of the premises 'with full knowledge that the term has terminated and that the holding over is against the will and without the consent of plaintiffs.' The prayer is for attorneys' fees, not awarded in the judgment, a reasonable rental value of $1,000 per month, restitution, loss of profits and treble damages.

This complaint was filed and served on defendant on August 21, 1951. On September 4, 1951, fourteen days later, defendant filed a general and special demurrer. The very next day plaintiffs moved to strike the demurrer on the grounds that it was filed too late, and that it was sham and frivolous. This motion was supported by an affidavit of plaintiffs' counsel repeating most of the allegations of the complaint and further deposing that defendant's counsel, after the notice of August 3, 1951, had been served, informed affiant that defendant had no intention of surrendering possession on the termination date of the lease because defendant knew he could remain in possession during the period any litigation brought to evict him was pending. It is further averred that after August 21, 1951, the two lawyers had worked out a compromise whereby defendant would be granted an extra month's tenancy at an increased rental on condition that at the end of that time defendant would submit to entry of judgment against him; that defendant evaded giving his approval to this compromise, secured new counsel, and rejected the compromise by filing the challenged demurrer.

On September 11, 1951, the trial court, without designation of the reason therefor, granted the motion to strike the demurrer from the files, and ordered the default of defendant entered. Judgment was entered September 13, 1951. The judgment recites the entry of the default, declares that the demurrer was stricken 'upon the grounds that it was not filed within time,' recites that evidence was taken, decrees restitution, and awards $1,559.52 treble damages for the unlawful detention of said premises, a fixed amount for each additional day of detention, and costs.

It is first urged that the trial court was without power to strike the demurrer from the files. The contention is entitled to but scant consideration. Assuming, without deciding, that defendant can raise this point after he has defaulted, under the law, Code of Civil Procedure, §§ 1167, 1169 and 1170 in an unlawful detainer action the defendant has but three days after service of summons to demur or answer the complaint. Here the demurrer was not filed for fourteen days, which was eleven days too late. Appellant concedes that the demurrer was filed late, but contends that if there is a pleading on file, even a pleading filed late, it is error to enter a default while that pleading is on file. That is probably the law. Cuddahy v. Gragg, 46 Cal.App. 578, 189 P. 721. But the further contention that in such an action the court lacks power to dispose of the pleading by striking it from the files because filed late is unsound. In Cuddahy v. Gragg, 46 Cal.App. 578, at page 580, 189 P. 721, at page 722, the court disposed of the contention as follows: 'But while it is true that a defendant's default may not be entered until his demurrer or other pleading, though filed after the time permitted by law, has been disposed of, nevertheless it is a proper practice in such case to move to strike the pleading from the files. The plaintiff has no absolute right to have the pleading stricken from the files merely because it was not filed in time; and, on the other hand, the defendant has no absolute right to have his belated pleading remain in the files; for a defendant cannot, as of right, answer or demur after the expiration of the time prescribed by statute. It is a proper practice, therefore, for the plaintiff to move to strike the pleading from the files; and, in the exercise of a sound discretion, the court very properly may grant such motion to stike. [Citing cases.]'

This has been the rule in California for many years. Bowers v. Dickerson, 18 Cal. 420; Acock v. Halsey, 90 Cal. 215, 27 P. 193. Appellant contends that the holdings in these cases are dicta and should not be followed. We need not take the time to demonstrate the fact that the holding in at least the Cuddahy case was not dicta, but are content to hold that if such holdings were dicta they are sound dicta and should be followed. It would be a logical absurdity to hold that a defendant in such an action which, under the law is entitled to priority, and where speedy determination is essential, could stall the proceedings and engage in dilatory tactics by the simple device of filing a late demurrer.

Appellant also urges that the trial court had no power to strike the demurrer on the ground that it was sham and frivolous. It has been so held. Larco v. Casaneuava, 30 Cal. 560. If it be assumed that the rule of that case is sound, it has no application here. The motion to strike was here based on the late filing of the demurrer and on the ground that it was sham and frivolous. The order granting the motion does not specify the ground upon which it was granted, but the judgment recites that the motion was granted 'upon the grounds that it was not filed within time.'...