Turem v. Texaco, Inc.

• Decision Date: 24 August 1965
• Citation: 236 Cal.App.2d 758,46 Cal.Rptr. 389
• Court: California Court of Appeals Court of Appeals
• Parties: Mike TUREM and Sarah Turem, Plaintiffs and Appellants, v. TEXACO, INC., a Delaware corporation, William Howard, and Clyde Reisdorf, Defendants and Respondents. Civ. 28254.

Page 389

46 Cal.Rptr. 389

236 Cal.App.2d 758

Mike TUREM and Sarah Turem, Plaintiffs and Appellants, v. TEXACO, INC., a Delaware corporation, William Howard, and Clyde Reisdorf, Defendants and Respondents.

Civ. 28254.

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

Aug. 24, 1965.

Hearing Denied Oct. 20, 1965.

Joseph W. Fairfield, Beverly Hills, Ethelyn F. Black, Los Angeles, for appellants.

Beardsley, Hufstedler & Kemble, by John Sobieski, Los Angeles, for respondents.

ROTH, Presiding Justice.

A motion for summary judgment was made and granted in favor of respondent. The motion was predicated upon a record consisting of the complaint of Mike Turem and Sarah Turem, ¹ appellants, (Turem), the amended and supplemental answer of Texaco, Inc., (Texaco), William Howard and Clyde Reisdorf, ² respondents, the record of proceedings in the municipal court and the judgment entered therein hereafter referred to, and the declarations of Mike Turem in opposition and those of Clyde Reisdorf and William Howard, in support of the motion. The motion was granted. Judgment was entered thereon in favor of Texaco and against Turem. The appeal is from the judgment.

The matter is before us with a background of prolonged litigation.

The complaint in the case at bench was filed on August 13, 1962. Succinctly summarized, it alleged in pertinent part that Turem as lessee, pursuant to written lease with Texaco as lessor, did on July 27, 1950, enter into possession of the premises therein described, which premises were equipped for and operated as a gas station. The lease was for a specific term of one year but provided for its renewal from year to year, and it was so renewed from year to year for the year which expired on July 26, 1962.

Paragraph (8) of the lease provided in pertinent part 'If, at the expiration or termination of this lease or any extension thereof, lessee should hold over with the consent of lessor, express or implied, the tenancy of the lessee thereafter shall be from month to month only and be subject to all of the other terms and conditions of this lease, * * *.' Turem was in possession on July 30 and 31, 1962. He alleges that on the latter date Texaco forcibly entered the premises without his consent and forcibly evicted him by removing his locks from the gas pumps and building substituting new locks of its own. Turem's action sounds in forcible entry and conversion.

Texaco answered on August 27, 1962. In pertinent part the answer denied the allegations of the complaint, (admitting the execution of the lease described), denied that the lease was in effect after July 26, 1962, and alleged that the lease had been automatically terminated on July 26, 1962, under the specific provisions of paragraph (6)b thereof, '* * * by written notice * * * to * * * Turem on July 13, 1962, which notice was effective July 26, 1962. * * * [And] * * * said lease was terminated by written notice served in the manner required * * * on July 13, 1962, and that such termination was effective on July 26, 1962.' Texaco further alleged '* * * that on July 31, 1962, pursuant to the request of * * * Turem, representatives of * * * Texaco * * * met with * * * Turem at the * * * premises for the purpose of taking * * * inventory and receiving the surrender of possession of the station * * *. On that date, with the consent of * * * Turem, the taking of inventory and changing of locks on the station was commenced. * * * [T]hereafter, on the same date, * * * Turem changed his position and demanded that * * * Texaco, * * * leave the premises, and refused to surrender possession of said premises. That thereafter on said date the locks of Mike Turem on said premises were restored to the station and it remained in the same condition as to locks and possession in which it had been theretofore, and [Texaco is] * * * informed * * * that * * * Turem has retained possession of said station and the keys to all locks thereon continuously from and after said 31st day of July 1962.'

On October 4, 1962, Texaco commenced an unlawful detainer action against Turem in the Municipal Court of Los Angeles County, No. 930 662, charging defendant Turem with unlawful possession of the premises.

On October 8, 1962, Turem answered this unlawful detainer complaint. Turem denied he was in possession of the premises and set forth three affirmative defenses, the substance of which is that by virtue of a previous forceful eviction by Texaco, Turem was no longer in possession of the premises. In a fourth affirmative defense, Turem alleged that there was another action pending, to wit: the action in the superior court (from the summary judgment in which this appeal is before us) which had been filed on August 13, 1962.

On October 9, 1962, Turem filed a cross-complaint in the unlawful detainer action, in which he set forth the forcible entry and eviction described in the superior court action and prayed for $10,000 compensatory damages and $10,000 punitive damages.

On October 15, 1962, pursuant to notice of motion therefor, a motion to strike the cross-complaint was made by Texaco on the ground that there could be no cross-complaint in an unlawful detainer action, since such an action is a summary proceeding for possession. Turem opposed the motion on the ground that possession was not an issue and that the cross-complaint on its face showed that the relief sought was in excess of the municipal court's jurisdiction, and that the case should be transferred and heard in the superior court. On the same day, the court granted the motion of Texaco and struck the cross-complaint.

Appellant complains that the motion to strike the cross-complaint was erroneously granted; that the municipal court lacked jurisdiction to do so, and that it should have transferred the action to the superior court.

The law is clear that when possession is an issue, the municipal court has jurisdiction to strike a cross-complaint in an unlawful detainer proceeding. Keenan v. Dean, 134 Cal.App.2d 189, P.2d 300, cited by appellant, is not in point. In that case the proceeding, although in unlawful detainer, was transferred to the superior court upon the filing of a cross-complaint because the facts in that action showed that possession was not an issue. Thus, at page 193, 285 P.2d p. 303, the court said: 'Of course, a cause of action for libel cannot be set up in an unlawful detainer action, and the parties are agreed that this is so. But it is equally clear, under the allegations of the answer, that since the premises were surrendered prior to the filing of the action, the issue of possession was removed from the case and the action became one for money damages.' (Emphasis added.)

In the case at bench, possession was directly an issue. Texaco alleged Turem was in possession. In his answer he denied that he was. There is however nothing in the answer indicating that he had surrendered possession prior to the commencement of the action, except the affirmative matter set up in the separate defenses in the answer. These affirmative defenses are deemed to have been denied. (Code of Civil Procedure, § 462.) The allegations of the affirmative defenses are ambiguous as to which party had physical possession of the premises as well as legal possession. The issue framed includes both, but nowhere in the record does it appear that Turem gave up physical possession of the premises at any time before judgment was had in the municipal court proceeding.

Since possession was an issue, there is no question of the power of the municipal court to strike the cross-complaint.

Section 1170 of the Coce of Civil Procedure specifically provides:

'On or before the day fixed for his appearance, the defendant may appear and answer or demur.' In Schubert v. Lowe, 193 Cal. 291, at page 295, 223 P. 550, at page 552, the court quoting the above excerpt, says: '* * * The section limits the defendant to an answer or demurrer. Obviously, therefore, a cross-complaint is inadmissible in an action in unlawful detainer.'

Moreover, Code of Civil Procedure, § 442, which authorizes the filing of a cross-complaint, applies only to 'actions,' not special proceedings; therefore, entirely apart from Code of Civil Procedure, § 1170, no cross-complaint would be authorized in unlawful detainer. (Tide Water Associated Oil Company v. Superior Court, 43 Cal.2d 815, 824, 279 P.2d 35.)

In Knowles v. Robinson, 60 Cal.2d 620, at page 625, 36 Cal.Rptr. 33, at page 36, 387 P.2d 833, at page 836, the court said: '* * * where an objection is interposed in an action for unlawful detainer, no cross-complaint or counterclaim may survive. The remedy of unlawful detainer is designed to provide means by which the timely possession of premises which are wrongfully withheld may be secured to the person entitled thereto. The summary character of the action would be defeated if, by cross-complaint or counterclaim, issues irrelevant to the right of immediate possession could be introduced.' (Lakeside Park Ass'n of Kelseyville v. Keithly, 43 Cal.App.2d 418, 422, 110 P.2d 1055; Rydell v. Beverly Hills Printing & Publishing Company, 88 Cal.App. 216, 219, 262 P. 818.)

The foregoing rule does not apply when a special proceeding in unlawful detainer has been transformed into an action for damages. In such a situation there is no need for a summary remedy. When it clearly appears that a defendant has surrendered possession before trial, cross-complaints are permitted. (D'Amico v. Riedel, 95 Cal.App.2d 6, 8, 9, 212 P.2d 52; Servais v. Klein, 112 Cal.App. 26, 35-36, 296 P. 123.)

The state of the pleadings is not such as to bring Turem within the exception.

On October 22, 1962 a trial was had in the municipal court. Turem did not appear at the trial, the court gave judgment that Texaco '* * * be restored to the possession of said premises; that the lease or agreement under which property is held be, and the same is hereby forfeited; * * * and...