D'Amico v. Riedel

WILSON, J.

From a judgment in favor of plaintiffs for rent, damages, attorney’s fees, restitution of the premises and forfeiture of the lease in an action in unlawful detainer, defendants appeal.

The undisputed facts are as follows: In. March, 1948, plaintiffs leased a residence and motel to defendants under a written lease agreement; the lease provided for rental at the rate of $500 per month and reasonable attorney’s fees should it become necessary to bring an action under the lease. Defendants failed to pay the rent instalments due on June 1, 1948, and July 1, 1948, whereupon plaintiffs served upon them a three-day notice to pay rent or quit followed four days later by the filing of this action.

Defendants by their answer admitted they were still in

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possession of the premises and that they refused to surrender possession thereof but alleged as affirmative defenses that the lease was obtained through fraud; that in June, 1948, defendants rescinded the lease on account of such fraud and tendered possession of the premises to plaintiffs upon the condition that plaintiffs restore to defendants the value received by them by reason of such fraud; that prior to the filing of this action defendants had filed an action for rescission against plaintiffs upon the grounds of fraud and the action was still pending; that defendants were tenants at will and had not been served with a 30-day notice.

Upon motion of plaintiffs, all the above mentioned defensive matter was stricken from the answer. At the time of trial defendants moved to restore the stricken defenses which motion was denied.

The sole question raised by this appeal is whether the court erred in refusing to permit defendants to raise the issues of fraud, rescission and invalidity of the lease as defenses.

It is defendants’ contention that (1) fraud may be shown as a defense in an unlawful detainer action, (2) the lease having been procured by fraud the terms thereof are unenforceable, and (3) a tenant who rescinds a lease procured by fraud becomes a tenant at will.

The cases cited by defendants do not sustain their contentions. It is the general rule that neither a counterclaim nor cross-complaint is permissible in an action in unlawful detainer. The reason for the rule is that since the action is a summary proceeding designed especially for the purpose of a speedy means of recovering possession of real property, tenants withholding the premises in violation of the covenants of their lease cannot through means of a cross-complaint or counterclaim frustrate the extraordinary remedy provided by the statute.