University of Southern Cal. v. Weiss

• Decision Date: 23 October 1962
• Citation: 25 Cal.Rptr. 475,208 Cal.App.2d 759
• Parties: UNIVERSITY OF SOUTHERN CALIFORNIA, a corporation, Plaintiff and Respondent, v. Morris WEISS, I. Isacsohn, AI Rothman and Torath Emeth Young Israel Academy, Defendants and Appellants. Civ. 26195.
• Court: California Court of Appeals Court of Appeals

Page 475

25 Cal.Rptr. 475

208 Cal.App.2d 759

UNIVERSITY OF SOUTHERN CALIFORNIA, a corporation, Plaintiff and Respondent, v. Morris WEISS, I. Isacsohn, AI Rothman and Torath Emeth Young Israel Academy, Defendants and Appellants.

Civ. 26195.

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

Oct. 23, 1962.

Rehearing Denied Nov. 19, 1962.

Hearing Denied Dec. 19, 1962.

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

Musick, Peeler & Garrett and Charles H. Tillinghast, Los Angeles, for respondent.

WOOD, Presiding Justice.

In this action in unlawful detainer, the defendants appeal from a summary judgment which was in favor of plaintiff.

Appellants contend that the affidavit filed in support of the motion for a summary judgment is insufficient as a matter of law to support the judgment.

The complaint alleges, in substance, that: On September 1, 1960, plaintiff, by written lease, leased certain real property (near Third Street and Fairfax Avenue in Los Angeles) to defendants on a month-to-month tenancy at a monthly rental of $575; by virtue of said lease defendants entered into possession of the premises on September 15, 1960, and ever since have been and now are in possession thereof; on April 21, 1961, plaintiff caused to be mailed to defendants, at the address of the property, a 'thirty-days' written notice' that said tenancy was terminated as of June 30, 1961, and 'requiring' defendants to quit and deliver possession of said premises on or before said date; a copy of said notice is attached to the complaint, marked 'Exhibit A,' and made a part thereof ¹; on May 24, 1961, defendant Isacsohn acknowledged receipt of said notice and stated that defendants would deliver possession of the premises to plaintiff as required in said notice; the date of termination of said lease has passed, and plaintiff is entitled to possession of the premises; defendants continue in possession thereof wilfully, without permission of plaintiff, and contrary, to the terms of the lease; paragraph 10 of said lease provides that in the event suit shall be brought for unlawful detainer, lessees shall pay to lessor reasonable attorney's fees to be fixed by the court; a copy of said lease is attached to the complaint, marked 'Exhibit B,' and made a part thereof. The prayer is for: a declaration that the tenancy is terminated; restitution of the premises; treble damages at the rate of $57 a day for each day defendants have been and shall continue to be in possession of the premises after June 30, 1961; and reasonable attorney's fees.

In an answer (filed July 18, 1961) the defendants denied the allegations of the complaint with respect to: mailing the notice of termination of the lease; the acknowledgment by defendant Isacsohn of receipt of the notice; the statement by Isacsohn that defendants would deliver possession of the premises to plaintiff as required by the notice; the plaintiff being entitled to possession of the premises; and the defendants continuing in possession without permission of plaintiff and contrary to the terms of the lease.

As a separate defense, defendants alleged in their answer that, about June 30, 1961, the plaintiffs 'indicated to defendants' that they could remain in possession of said premises for a further period of time to be agreed upon between the parties; as a result thereof defendants made necessary arrangements to improve the condition of the grounds and school for the reception of students, and defendants incurred expenses in connection therewith; as a result thereof plaintiff is estopped to maintain this proceeding.

As a second separate defense, defendants alleged as follows: That the property in question has been used by them as a private elementary school for the past six or seven years. On July 3, 1961, they commenced an eminent domain action to condemn said land for continued use as such school. On July 14, 1961, a demurrer to said action was sustained without leave to amend. Defendants have advised plaintiff that an appeal from that judgment will be prosecuted. If defendants are successful in the eminent domain action, any future action in unlawful detainer will become moot. That under the circumstances the trial of this cause (unlawful detainer) be stayed until final determination of the eminent domain action, and that the defendants continue to pay their rent of $575 a month until final determination of the eminent domain action.

On July 19, 1961, plaintiff filed a notice of motion for summary judgment, which stated that on August 1, 1961, plaintiff would make a motion for an order striking out the answer, for entry of judgment as requested in the complaint; and that the motion would be made on the ground that there is no defense to said action.

The affidavit of Charles H. Tillinghast, in support of the motion, stated: He is the attorney for plaintiff in this action. About April 21, 1961, he caused the notice, a copy of which is attached to the complaint, to be mailed to defendants at 167 South Edinburgh Avenue, Los Angeles. On May 24, 1961, he telephoned to defendant Torath Emeth Young Israel Academy and asked to speak to defendant Isacsohn. Affiant has spoken to defendant Isacsohn in the past and is familiar with his voice, and defendant Isacsohn answered the telephone. Affiant asked Isacsohn if he had received the said notice to vacate the premises and he acknowledged that he had received the notice. Isacsohn further stated that defendants would vacate the premises not later than June 30, 1961. Affiant at no time indicated to defendants that they could remain in possession of said premises for a further period of time to be agreed upon between the parties, and affiant is informed and believes and on the basis of such information and belief states that at no time did any representative of plaintiff indicate to defendants that they could remain in possession of said premises for a further period of time to be agreed upon between the parties.

Defendants did not file an affidavit regarding the motion for summary judgment. In their brief, they state that they preferred to oppose the motion on the insufficiency and defects of plaintiff's affidavit.

When the motion was heard on August 1, 1961, an attorney representing plaintiff, and an attorney representing defendants, were present. On that day the motion was granted. On August 2, 1961, a judgment, based upon the granting of said motion, was entered. The judgment decreed that the defendants were guilty of unlawful detainer of the premises; that plaintiff is entitled to possession; that plaintiff recover $575 as damages for detention of the premises from July 1 through July 31, 1961, with costs of $26.50; that plaintiff recover $500 as reasonable attorney's fees; defendants' motion to stay judgment for five days is denied; and the clerk is ordered to issue a writ of possession that plaintiff be restored to possession forthwith.

On August 7, 1961, defendant Academy petitioned the District Court of Appeal for a writ of mandate directing the trial court to order a stay of execution, pending an appeal from the judgment. That petition was denied on August 19. On August 25 the Academy filed a petition for a hearing in Supreme Court, which petition was denied on September 14, 1961.

On September 1, 1961, pursuant to the writ of possession, plaintiff obtained possession of the premises.

Plaintiff (respondent) has made a motion to dismiss the appeal. An affidavit of the business manager of the plaintiff states the plaintiff (University) owns certain real property at the southeast corner of Third Street and Fairfax Avenue in Los Angeles, upon which it is engaged in the construction of a shopping center; that some of the units in the shopping center have been completed and are occupied by tenants; that plaintiff was required by the leases with some of those tenants (Safeway Stores, Inc., J. J. Newberry Co., and Sav-On Drugs, Inc.) to provide, for said tenants, employee parking facilities on the property which is the subject of this unlawful detainer action; about September 1, 1961, plaintiff took possession of the property involved here; about October 1, 1961, plaintiff commenced to remove the buildings from said property and subsequently improved it as a parking lot, which is now used for parking by the employees of the tenants.

In plaintiff's (respondent's) points and authorities in support of the motion to dismiss, it is stated (p. 9) that restoration of possession of the premises (to defendants) is impossible since no building exists in which to conduct a school; and thus, the relief sought on appeal by defendants is impossible to give and the matter has become moot. It is stated further therein that the remedy of restoring defendants for a thirty-day period would work a much greater hardship on respondent and the third-party users of the property (tenants and their employees) than could be justified by benefit to defendants; and that defendants have not sustained any injury.

Appellants assert that the sole question on appeal is whether the affidavit of Mr. Tillinghast, in support of respondent's (plaintiff's) motion for summary judgment is sufficient. They argue that there is no statement in the affidavit that the facts set forth therein are within affiant's personal knowledge and that if he were sworn as a witness he could testify competently thereto; that the only 'possible' fact stated in his affidavit is that he asked defendant Isacsohn if he had received the notice, and that Isacsohn acknowledged he had received it, and stated further that defendants would vacate the premises not later than June 30, 1961. Appellants argue further that there are several issues in the case that are not mentioned in the affidavit, and that those omissions are significant since plaintiff cannot prevail in a summary judgment proceeding unless its affidavits cover every element necessary to sustain a judgment in...