Hinman v. Wagnon

Citation172 Cal.App.2d 24,341 P.2d 749
CourtCalifornia Court of Appeals
Decision Date14 July 1959
PartiesCharles W. HINMAN, Plaintiff and Appellant, v. William WAGNON, Sr., et al., Defendants, Sierra Creek Development Company, Defendant and Respondent. Civ. 23263.

Charles W. Hinman, in pro. per.

McCutchen, Black, Harnagel & Shea, George Harnagel, Jr., Frederick J. Kling, Jack T. Swafford, Los Angeles, for respondent.

FOX, Presiding Justice.

Plaintiff appeals from a judgment of dismissal entered after defendant's 1 demurrer to plaintiff's second amended complaint for unlawful detainer was sustained without leave to amend.

The facts which give rise to this appeal are as follows: On May 16, 1957, plaintiff leased property at Lake Enchanto to the defendant; said lease was in writing and characterized by plaintiff as a 'temporary' lease. Defendant failed to comply with various terms of the lease with respect to rental payments and other covenants. On or about July 14, 1957, plaintiff sent a written ten days' notice of default to the defendant. Thereafter, on July 28, defendant was sent a written notice which contained, inter alia, the following:

'Your failure to make any payment, even under the temporary agreement, not considering your actual agreement, constitutes a default and grounds for termination of the lease or peacefully surrendering the property to the undersigned on demand, which demand is hereby made. Your failure to cure this default within the 10 days, in my opinion, terminates now all rights to possession of the property, without a new written agreement or consent, even though payment might be made.

'You and each of you are hereby given notice, within 3 days after service on you of this notice to deliver up possession of any part of the premises of Lake Enchanto as set forth in a lease made and signed on the 16th day of May 1957, to the undersigned, or the undersigned will institute legal proceedings against you. * * *

'This notice is also given because of your failure to comply with the demands for checkers on gate, examination of records, particularly daily records, inventories of merchandise for sale, picnic reservations, amounts paid, etc.'

On August 7, 1957, plaintiff commenced this action for unlawful detainer. Plaintiff was given leave to amend his original and first amended complaint after defendant successfully interposed demurrers thereto. Defendant's demurrer to plaintiff's second amended complaint, however, was sustained without leave to amend and a judgment of dismissal was entered. It is from this judgment that plaintiff appeals.

In order for a person to avail himself of the summary remedy of unlawful detainer, he must bring himself within the terms of the statute establishing such relief. Lawrence Barker, Inc. v. Briggs, 39 Cal.2d 654, 661, 248 P.2d 897; Horton-Howard v. Payton, 44 Cal.App. 108, 112, 186 P. 167. Section 1161, Code of Civil Procedure, provides that a tenant of real property for a term less than life is guilty of unlawful detainer when he (1) remains in possession after the expiration of the term, or (2) continues in possession after default in the payment of rent and is served with a three days' notice, in writing, requiring its payment or possession of the property, or (3) continues in possession after a neglect or failure to perform other conditions or covenants of the lease and is served with a three days' notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, or (4) assigns, sublets, or commits waste upon the demised premises, contrary to the conditions or covenants of his lease, or maintains, commits, or permits the maintenance or commission of a nuisance upon the demised premises or uses such premises for an unlawful purpose, and is served with a three days' notice to quit.

The complaint in an action alleging an unlawful detainer must, of course, set forth the facts upon which the plaintiff predicates his right to recover. Code Civ.Proc., § 1166. In the instant complaint, plaintiff anchors his right of action on section 1161, subdivisions 2 and 3, in that, alleges plaintiff, defendant has defaulted in the payment of rentals and has not complied with other covenants of the lease. There are no allegations in the instant pleading which even remotely suggest that plaintiff sought recovery under the remaining provisions of section 1161.

It is well settled that the notice required under subdivisions 2 and 3 (where the condition or covenant assertedly violated is capable of being performed) must be framed in the alternative, viz., pay the rent or quit, perform the covenant or quit, and a notice which merely directs the tenant to quit is insufficient to render such tenant guilty of unlawful detainer upon his continued possession. Colyear v. Tobriner, 7 Cal.2d 735, 742, 62 P.2d 741, 109 A.L.R. 191; Opera House & Art Ass'n Bldg. v. Bert, 52 Cal. 471, 472-473; Hudson v. Zumwalt, 64 Cal.App.2d 866, 874, 149 P.2d 457; Feder v. Wreden Packing & Provision Co., Inc., 89 Cal.App. 665, 671, 265 P. 386. As stated in the Feder case, 89 Cal.App. at page 671, 265 P. at page 388, 'In order to sustain an action...

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15 cases
  • Golden v. Dungan
    • United States
    • California Court of Appeals
    • September 29, 1971
    ...(1968) 262 Cal.App.2d 202, 210, 68 Cal.Rptr. 694; Agnew v. Parks (1959) 172 Cal.App.2d 756, 766, 343 P.2d 118; Hinman v. Wagnon (1959) 172 Cal.App.2d 24, 29, 341 P.2d 749; Potter v. Richards (1955) 132 Cal.App.2d 380, 385, 282 P.2d 113.) On the other hand, the following rule is well recogni......
  • Sackett v. Wyatt
    • United States
    • California Court of Appeals
    • May 23, 1973
    ...complaint. (Lesperance v. North American Aviation, Inc., 217 Cal.App.2d 336, 340--341, fn. 1, 31 Cal.Rptr. 873; Hinman v. Wagnon, 172 Cal.App.2d 24, 28, 341 P.2d 749.) Allegations of fact made under oath may not ordinarily be dropped without adequate explanation merely for the purpose of av......
  • ESA Mgmt., LLC v. Jacob
    • United States
    • United States Superior Court (California)
    • March 10, 2021
    ...526, 32 Cal.Rptr.2d 511 ; Jayasinghe v. Lee (1993) 13 Cal.App.4th Supp. 33, 37, 17 Cal.Rptr.2d 117.)(See also Hinman v. Wagnon (1959) 172 Cal.App.2d 24, 341 P.2d 749 [Court of Appeal affirmed the trial court's order sustaining a demurrer without leave to amend and holding that plaintiff fai......
  • Esa Mgmt., LLC v. Jacob
    • United States
    • United States Superior Court (California)
    • March 10, 2021
    ...516, 526, 32 Cal.Rptr.2d 511 ; Jayasinghe v. Lee (1993) 13 Cal.App.4th Supp. 33, 37, 17 Cal.Rptr.2d 117.)(See also Hinman v. Wagnon (1959) 172 Cal.App.2d 24, 341 P.2d 749 [Court of Appeal affirmed the trial court's order sustaining a demurrer without leave to amend and holding that plaintif......
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