Moldovan v. Fischer

• Decision Date: 01 April 1957
• Citation: 308 P.2d 844,149 Cal.App.2d 600
• Court: California Court of Appeals Court of Appeals
• Parties: Bernice Ann MOLDOVAN et al., Plaintiffs and Respondents. v. Rosa E. FISCHER et al., Defendants and Appellants. Rosa E. FISCHER, Plaintiff and Appellant, v. Bernice and MOLDOVAN et al., Defendants and Respondents. Civ. 17076.

Page 844

308 P.2d 844

149 Cal.App.2d 600

Bernice Ann MOLDOVAN et al., Plaintiffs and Respondents. v. Rosa E. FISCHER et al., Defendants and Appellants.

Rosa E. FISCHER, Plaintiff and Appellant, v. Bernice and MOLDOVAN et al., Defendants and Respondents.

Civ. 17076.

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

April 1, 1957.

Wagener, Brailsford & Knox, Francis C. Starr, Oakland, for appellants.

Harris, Darter & Older, Oakland, Cyril Viadro, San Francisco, of counsel, for respondents Moldovans.

Harpham & Holt, Wilfred J. Harpham, Howard C. Harpham, Albany, for respondent Mary E. Hauschildt.

PETERS, Presiding Justice.

Bernice and David Moldovan and Mary Hauschildt brought an action against Rosa Fischer to determine their right to possession of certain realty, for declaratory relief, for an injunction, and for damages. Rosa Fischer then brought an action against the Moldovans and Mary Hauschildt involving the same property for forcible entry, forcible detainer, and for fraud, praying for restitution of the realty and for damages. The actions were consolidated for trial. The trial court decided in favor of the Moldovans and Mary Hauschildt in both actions, and judgments were entered accordingly. Rosa Fischer appeals from both judgments.

The Moldovans own a building and equipment in Oakland suitable and licensed by the state for the operation of a rest home for the aged. On January 2, 1954, they leased this building, its fixtures, furniture and equipment to Mary Hauschildt for 5 years, the lessee paying the last year's rent of $7,200 in advance. Mary Hauschildt operated the premises as a rest home until January 2, 1955. The lease contained a clause prohibiting its assignment or subletting the premises without the written consent of the lessors, the lessees agreeing that they would 'not unreasonably withhold their consent.' It was also provided that the 'taking a partner or partners by Lessee shall not be deemed an assignment or a sub-letting within the meaning of this paragraph.'

In November of 1954 Rosa Fischer came upon the scene. In that month she and Mary Hauschildt executed a limited partnership agreement, and filed with the county their certificate of limited partnership. By the terms of the limited partnership agreement the partnership was to commence January 2, 1955, and to terminate January 2, 1959, the date of termination of the Moldovan-Hauschildt lease. Rosa Fischer was made the general partner and Mary Hauschildt the limited one. Both partners knew of the restrictions in the lease against assignment or subleasing, and there is testimony that the Moldovans refused to consent to an assignment or sublease to Rosa Fischer. However, in the partnership agreement, the continuing existence of the Moldovan-Hauschildt lease was recognized in at least six separate paragraphs. (Paragraphs, 9, 11, 14, 17, 19 and 21.)

The partnership agreement conferred on the limited partner the power to terminate the partnership. Paragraph 19 of the agreement provided in part:

'The Limited Partner is hereby given the right to terminate this limited partnership and;

'(a) To resume complete ownership and assume management of the business, * * *'

Paragraph 20 provided: 'Termination of the Limited Partnership under the above paragraph 19 shall be effective upon the Limited Partner giving the General Partner notice thereof, and the General Partner shall not be entitled to an accounting or to reimbursement of any payments made under this agreement to the Limited Partner.'

Pursuant to the terms of the partnership agreement Rosa Fischer paid Mary Hauschildt $1,000 on the date of the execution of the agreement, and on January 2, 1955, paid her a second $1,000, ¹ and began operation of the business. ² Almost immediately the Moldovans and Mary Hauschildt became dissatisfied with the way Rosa Fischer was operating the business. That this dissatisfaction was reasonable was shown by evidence that in violation of law more patients were accepted than the state license permitted, that patients were given inadequate care, and that Rosa Fischer refused to allow the Moldovans or Mary Hauschildt entry to the premises. The situation got so bad that Moldovans threatened to terminate their lease with Mary Hauschildt. In fact, on January 26, 1955, by written agreement, these parties 'cancelled, terminated and rendered null and void and of no effect' this lease. As part of this termination agreement the Moldovans agreed to refund to Mary Hauschildt the $7,200 she had paid them in advance for the last year's rent under the lease. Then by a letter dated January 26, 1955, and personally delivered to her on the 27th, Rosa Fischer was formally notified by the Moldovans that the Moldovan-Hauschildt lease had been cancelled, that Fischer's right to possession of the premises had terminated, and that she should vacate the premises before January 27, 1955, at 3:30 p.m. By a letter from Mary Hauschildt dated January 27, 1955, and received January 29th, Rosa Fischer was formally notified that 'by reason of your activities in the Rest Home which have exposed me to great liability under the lease and because of your failure to permit me entrance or to cooperate with me in any other way, I am obliged to terminate our partnership.'

On January 27, 1955, at about 3 p.m., while Rosa Fischer was temporarily absent from the premises, the Moldovans and Mary Hauschildt retook possession and control of the property. These actions then followed, resulting in judgments for the Moldovans and Mary Hauschildt. In the action brought by the respondents it was decreed that the Moldovans owned the property and business in question; that the Moldovan-Hauschildt lease was lawfully terminated January 26, 1955; that the limited partnership was lawfully terminated January 27, 1955; that the lease was not assigned to the partnership; that Mary Hauschildt at all times prior to the termination of the lease was in lawful possession of the premises and that she had duly and regularly delivered possession of the premises and business to the Moldovans. In the action by appellant the decree was in substantially the same terms, plus the order that appellant was entitled to nothing under her complaint.

On these appeals appellant makes two main contentions: That respondents, as a matter of law, were guilty of a forcible entry and a forcible detainer, and that the judgments unlawfully forfeited her investment and earnings in the business. These arguments are directed mainly to the action in which appellant was plaintiff.

The first question presented is whether the evidence, as a matter of law, shows a forcible entry. It does not.

The civil offense involved is defined in section 1159 of the Code of Civil Procedure as follows:

'Every person is guilty of a forcible entry who either:

'1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property; or,

'2. Who, after entering peaceably upon any real property turns out by force, threats or menacing conduct, the party in possession.'

The trial court found that the respondents entered the premises peacefully and without fraud, deceit, force, threat or intimidation of any kind. This finding is amply supported by the testimony of the three respondents that they used no force or intimidation in resuming control of the premises, by the testimony of a police officer present at the time, and by the testimony of three of Rosa Fischer's employees.

The trial court made no express finding in reference to subdivision 2 of section 1159. However, the trial court did find that all of the allegations in appellant's first cause of action were untrue. One of those allegations was that 'the defendants * * * with sundry and blasphemous threats of bodily harm, * * * ordered all of plaintiff's employees from said property.' Although at the trial the evidence was not specifically directed towards this aspect of the forcible entry cause of action, it is a fair inference from the evidence that the occupants of the premises were not forcefully removed after a peaceable entry.

Thus, appellant has failed to establish the essential element of the claim unlawful entry. Edwards v. Bodkin, 43 Cal.App. 405, 185 P. 423; San Francisco, etc., Soc. v. Leonard, 17 Cal.App. 254, 119 P. 405.

The next question presented is whether the evidence, as a matter of law, shows a forcible detainer. It does not.

This civil offense is defined in section 1160 of the Code of Civil Procedure as follows:

'Every person is guilty of a forcible detainer who either:

'1. By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or,

'2. Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant.

'The occupant of real property, within the meaning of this subdivision, is one who, within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands.'

So far as subdivision one is concerned, the gist of the offense is retention of the property by force or threats of force. The trial court found that following the peaceable entry by respondents, Mary Hauschildt properly turned the property over to the Moldovans and that the Moldovans remained in peaceable possession 'without the use of force, threat, fraud, deceit or intimidation of any kind whatsoever.' The court also found to be untrue the allegation of appellant's complaint that the respondents, after taking possession, 'by means of threats of violence and intimidation, unlawfully hold and keep possession of said real property to the exclusion' of appellant. Appellant points to no...