Slater v. Conti

• Decision Date: 30 June 1959
• Citation: 171 Cal.App.2d 582,341 P.2d 395
• Parties: Eldo S. SLATER and Kathleen Slater, Individually and as husband and wife, Plaintiffs and Appellants, v. Antonio CONTI, Joseph Conti and Conti Estates, Inc., a corporation, Defendants and Respondents. Civ. 18290.
• Court: California Court of Appeals Court of Appeals

Page 395

341 P.2d 395

171 Cal.App.2d 582

Eldo S. SLATER and Kathleen Slater, Individually and as husband and wife, Plaintiffs and Appellants, v. Antonio CONTI, Joseph Conti and Conti Estates, Inc., a corporation, Defendants and Respondents.

Civ. 18290.

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

June 30, 1959.

Hearing Denied Aug. 26, 1959.

Carter, Terreo & O'Connell, San Francisco, James W. Funsten, San Francisco, for appellants.

Anderson & McMillan, Burlingame (Hugh F. Connolly, Burlingame, of counsel), for respondents.

DRAPER, Justice.

At the outset of non-jury trial, both sides moved for judgment on the pleadings. Defendants' motion was granted and plaintiffs appeal from judgment then entered. The facts hereafter stated are taken from the allegations of the complaint and from stipulations made at pre-trial conference and on argument of the motions for judgment.

Defendants leased land to plaintiffs for a five-year term for use as a golf driving range. Plaintiffs took possession September 1, 1953, the date of commencement of the term. On March 8, 1954, the City and County of San Francisco filed an action in ejectment against both lessors and lessees, claiming title to a strip 132 feet wide which bisects the land leased. Both lessors and lessees contested this action. Lessees continued to pay rent through August 31, 1954. There is no specific allegation of termination of lessees' possession, although it is alleged that by reason of the ejectment action lessees 'were compelled to and did cease to operate' their business September 30, 1954. On October 11, 1954 lessors commenced an unlawful detainer action against lessees, who allege that lessors filed such action 'knowing that (lessees) * * * were no longer in possession.' December 30, 1954 memorandum decision in favor of lessors was filed in the unlawful detainer action, and judgment followed January 13, 1955. Memorandum decision in favor of the City and County was filed in the ejectment action November 29, 1954, and judgment was entered January 14, 1955. No writ of restitution ever issued. Both judgments are now final.

In the case at bar, plaintiff lessees assert that because they were deprived of the use of the strip of land owned by the City and County of San Francisco, the remainder of the leased land became valueless to them. They seek compensation for expenses incurred in improving the land, costs of defense of both ejectment and unlawful detainer actions, and loss of profits. The trial court's order for judgment on the pleadings was based upon the view that plaintiffs' possession and enjoyment of the leased premises was neither interfered with nor disturbed until commencement of the unlawful detainer action. Since that action and the judgment therein was based upon plaintiffs' failure to pay rent, that court concluded that no liability could be imposed upon defendant lessors.

The lease before us contains no express covenant either of title or of quiet enjoyment. However, under our code there is an implied covenant securing to the lessee 'the quiet possession' of the leased premises 'against all persons lawfully claiming the same' (Civ.Code, § 1927). Plaintiffs argue that, in addition, a lessor impliedly covenants title in himself. Language in some of the older cases (Chandler v. Hart, 161 Cal. 405, 413, 119 P. 516; McAlester v. Landers, 70 Cal. 79, 11 P. 505; La France v. Kashishian, 204 Cal. 643, 269 P. 655) seems to support this view. But none of these cases directly holds that damages may be recovered for breach of such a covenant. Nor do we find any authority permitting recovery for lack of title in the lessor unaccompanied by loss of possession by the lessee. On the contrary, Section 1927 expressly limits the covenant to application as against persons 'lawfully claiming' the property. It seems clearly implied that the lessor's title is relevant only insofar as its lack leads to disturbance of the lessee's possession. It is significant that the Field draft of a Civil Code for New York, which was the basis for much of our Civil Code, contains, in Section 981, the exact language which since 1872 has been Section 1927 of our Civil Code. The Field draft, which was intended as a codification of the common law, cites for this section Vernam v. Smith, 15 N.Y. 327. In that case plaintiff lessor sued for the first year's rent. The lessee's answer alleged that plaintiff was not the owner of the leased premises, that defendant lessee was sued in ejectment by a third party shortly after commencement of the term, and that 10 days after expiration of the first year of the term judgment was entered against defendant in the ejectment action. Comparability to the case at bar is clear. But the Court of Appeals affirmed sustaining of demurrer to the answer and...