Dussin Investment Co. v. Bloxham
| Decision Date | 24 August 1979 |
| Citation | 96 Cal.App.3d 308,157 Cal.Rptr. 646 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DUSSIN INVESTMENT COMPANY and George T. Dussin, Plaintiffs and Respondents, v. Roger BLOXHAM, Defendant and Appellant. Civ. 19758. |
Insofar as this appeal is concerned the action below was one for unlawful detainer by a sublessor against a sublessee for possession of the premises, forfeiture of the sublease and unpaid rent together with interest and costs. The sublessee appeals, contending that as a matter of law the evidence demonstrates that the sublessor had partially, actually evicted him and that, therefore, no rent was owed.
The relationship between the parties and the litigation between them are somewhat complex. Plaintiffs Dussin Investment Company and George T. Dussin are the sublessors of defendant Roger Bloxham, but Dussin Investment Company was simultaneously also the sub-sublessee of Bloxham as to a portion of the premises. (We shall refer to Dussin and Dussin Investment Company collectively as Dussin or sublessors; defendant Bloxham will be called Bloxham or sublessee.) Two actions were pending in the trial court and were consolidated for trial. The appeal is from the judgment in only one. In addition, there was a prior unlawful detainer action between the parties that proceeded to judgment. While no detailed history of the problems between the parties is necessary, it is helpful in resolving the issues on appeal to be familiar with the relationship between the parties and the sequence and nature of the lawsuits between them.
The property involved is owned in fee by Mr. and Mrs. Swanson and is located at 223 21st Street, Newport Beach. The property has a total land area of some 14,000 square feet and has water frontage on Newport Bay where boats can be tied to slips to be moved in and out of the water and brought onto land for repair and maintenance work. The parcel is irregularly shaped. It is approximately 159 feet in depth and varies from 106 feet in width at the widest point to 66 feet in width at the waterline. On the rear portion (away from the waterfront) of the property and adjoining 21st Street is a two-story office building. Each floor approximates 1,200 square feet.
In February 1967, Mr. and Mrs. Swanson leased the entire property to Croft and Neville Marine Contractors, Inc. for a period of 10 years with an option to renew for 5 years. Under the heading "USE OF LEASED PREMISES" the master lease provides: "The property leased is to be used for a marine contracting business and for any lawful purpose." Croft and Neville Marine Contractors, Inc. subsequently became Penhall Marine, Inc. and on April 21, 1970, subleased a portion of the property for a term ending February 10, 1977, with an option to renew for an additional five years. The portion of the property subleased was the entire property except the second floor of the building and a portion of the first floor of the building designated as a "15' by 20' (area) on the lower floor in the Northeast corner of the building." Also reserved to Penhall Marine, Inc. were six parking spaces and full rights of access to and from the premises retained. The sublease provided that the sublessee might assign or further sublease the premises but gave the sublessor the right of first refusal as to any such assignment or sublease.
On May 31, 1974, the sublessee's interest in this sublease was assigned to defendant Bloxham. On September 10, 1974, Bloxham sub-subleased to Dussin Investment Company approximately 10,000 square feet of open paved area for a term ending December 31, 1976, to be used as a parking lot for a restaurant known as The Old Spaghetti Factory.
On March 1, 1975, Penhall Marine, Inc., now named Penhall Company, assigned the master lease to Dussin Investment Company and George T. Dussin. Thus, plaintiffs Dussin Investment Company and George T. Dussin became the sublessor of defendant Bloxham, but Dussin Investment Company was also a sub-sublessee of defendant Bloxham with respect to the restaurant parking lot sub-sublease.
When Bloxham acquired the sublease at the end of May 1974, the only access to the building was to the front (toward the water) from the parking area. Sometime thereafter, apparently in early 1975, Bloxham installed a sliding glass door in a wall of the first floor, which afforded him access to 21st Street. Notwithstanding the reservation of the use of that space to Penhall Marine, Inc. in the sublease, Bloxham was using the storage area as a part of his workshop and for the storage of some of his personal property until about August 1, 1975.
On or about August 1, 1975, Dussin, who had succeeded to the rights of Penhall Marine, Inc. in the master lease including the right to use the "15' by 20' " storage area on the ground floor of the building, apparently determined to use that portion of the building. Believing they were entitled to the use of 300 square feet and apparently believing the partitioned area encompassed some 135 square feet, Dussin removed the partitions and enlarged the storage area by some 165 square feet and took possession of the enlarged area. 1 In the process, the sliding glass door opening on 21st Street previously installed by Bloxham was blocked off.
Meanwhile on July 15, 1975, Dussin filed suit against Bloxham (Case No. 231560) for damages, alleging primarily breaches by Bloxham of the restaurant parking lot sub-sublease. Bloxham cross-complained, asserting a number of claims for money damages including one based on Dussin's enlargement and possession of the storage space on the first floor of the building.
Pending the first action, Dussin, as assignee of the master lease, instituted an unlawful detainer action against Bloxham for nonpayment of rent on December 16, 1975. Although the enlargement of the storage area and Dussin's taking possession thereof had occurred some four and a half months earlier, Bloxham did not assert any defense based on those facts in the unlawful detainer action, and judgment was rendered in favor of Dussin for unpaid rent and interest in excess of $10,000. Forfeiture of the sublease was denied because Dussin's notices terminating the tenancy were defective. The judgment was satisfied by Bloxham on February 25, 1976.
Bloxham thereafter paid to Dussin the rent due under the sublease until July 1976, when he again defaulted in payment of part of the July rent and all of the August and September rent. Based on these defaults in the payment of rent, on September 10, 1976, Dussin filed the instant unlawful detainer action (Case No. 253044) seeking possession of the premises, termination of the sublease and recovery of the unpaid rent. This time Bloxham asserted that Dussin's conduct in enlarging and taking possession of the storage area constituted a partial, actual eviction negating Bloxham's obligation to pay rent under the sublease.
Dussin's action for damages (231560) in which Bloxham had cross-complained for damages on account of Dussin's enlargement and taking possession of the storage area was consolidated for trial with the instant unlawful detainer action (253044). The matters were tried to the court without jury. In the damage action the court determined some matters favorably to Dussin and some matters favorably to Bloxham. Pertinent to this appeal, the court found that the reference in the sublease to the "15' by 20' " area in the sublease was intended to identify a space within certain partitions on the first floor at the time the sublease was signed, which actually comprised only about 170 square feet of space rather than 300 square feet as indicated by the dimensions specified; that Bloxham did not consent to Dussin's enlargement of the area and occupation of the enlarged storage area; that as a result of Dussin's actions the reasonable rental value of the premises to which Bloxham was entitled under the sublease was lowered by $200 a month commencing August 1, 1975; and that Dussin's enlarging and occupying the area were not done maliciously or in bad faith and did not justify punitive damages. Accordingly, the judgment in the damage action included an award to Bloxham for the diminution in rental value of the leased premises in the amount of $5,200 plus $6.67 per day until Dussin's wrongful possession of the enlarged storage area should cease. No appeal was taken from that judgment, and it has become final. 2
In the unlawful detainer action (253044) the court found that Dussin had complied with all the procedural requirements; that Bloxham had failed to pay the rent due under the sublease as claimed; 3 and that Dussin's enlargement of the storeroom by 165 square feet was not consented to by Bloxham. The court concluded, however, that Dussin's conduct in so doing did not amount to a partial, actual eviction of Bloxham and was not a defense to the unlawful detainer action. Accordingly, judgment was rendered in favor of Dussin for forfeiture of the sublease, possession of the premises and the recovery of unpaid rent, taxes and interest exceeding.$19,000. The appeal is from that judgment. 4
Bloxham's overall contention on appeal is that Dussin's enlarging and taking possession of the enlarged storage area amounted to an actual, partial eviction of Bloxham as a matter of law and constitutes a full defense to Dussin's unlawful detainer action. Dussin contends that to constitute a complete defense to an action for unlawful detainer or rent, an actual eviction must have been from a "substantial" portion of the premises; that the trial court found in effect that Dussin's conduct did not constitute an actual eviction of Bloxham from a "substantial" portion of the premises; that ...
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...was a material part or that the eviction was a material breach of the covenant of quiet enjoyment”]; Dussin Inv. Co. v. Bloxham, 96 Cal.App.3d 308, 317, 157 Cal.Rptr. 646 [1979] [“a tenant is not relieved entirely of the obligation to pay rent by an actual, partial eviction unless the evict......