Lester v. Isaac

FOX, J.

Plaintiff seeks, through proceedings in unlawful detainer, to recover from defendant the possession of certain described premises in the city of Los Angeles. Plaintiff alleges that he owned said premises prior to November 1, 1942 (the effective date of O.P.A. Rent Regulation in this Defense-Rental Area), and that defendant occupies the same on a month to month tenancy. Plaintiff further alleges that on September 4, 1943, he served on defendant a written notice terminating her tenancy on October 4, 1943, and that he gave a copy of said notice to the O.P.A. area rent office within twenty-four hours after service upon defendant. A copy of this notice is set out in the complaint. To the complaint, defendant filed a general demurrer, which was overruled. Defendant did not answer. Thereafter, a default judgment by the court was entered in favor of plaintiff. Defendant appeals from this judgment, contending that the complaint fails to state a cause of action and that therefore her demurrer should have been sustained. This contention must be upheld.

In order for a plaintiff to state a cause of action in a proceeding of this kind, which is statutory in character

(Seidell

v.

Anglo-California Trust Co.

(1942), 55 Cal.App.2d 913, 920 [132 P.2d 12]), he must plead compliance with the applicable provisions of the O.P.A. Rent Regulation for Housing (8 Fed. Register 7322, issued pursuant to the Emergency Price Control Act of 1942, Pub. L. No. 421, 77th Cong., 2d Sess., ch. 26; 56 Stat. 29). (See

McLain

v.

Llewellyn Iron Works

(1922), 56 Cal.App. 60, 65-6 [204 P. 869];

*Supp. 853

Bailey Trading Co.

v.

Levy

(1925), 72 Cal.App. 339, 344-5 [237 P. 408] ;

Green

v.

Grimes-Stassforth Stationery Co.

(1940), 39 Cal.App.2d 52, 56 [102 P.2d 452].) This the plaintiff failed to do. In the first place, the notice to the defendant, which he pleads, is insufficient. Section 6(d)(1) of the said rent regulation, provides that: “Every notice to a tenant to vacate or surrender possession of housing accommodations shall state the ground under this section upon which the landlord relies for removal or eviction of the tenant.” In this connection, the notice to defendant recites that “The undersigned (the plaintiff) desires the possession of said premises for his own use in order that the same may he occupied by him.” Plaintiff is apparently attempting to bring himself within the self-occupancy provision of section 6(a) (6) of said regulation. Under the terms of this latter subdivision, provision is made for the recovery of possession of housing accommodations by a landlord (owner of the property prior to November 1, 1942) who “seeks in good faith to recover possession of such accommodations for immediate use and occupancy as a dwelling for himself.” The element of good faith is the criterion of the owner’s right to recover possession of housing accommodations for such purpose.