Schafer v. Wholesale Frozen Foods, Inc.

DRAPER, J.

General demurrer to plaintiffs’ second amended complaint was sustained with leave to amend. Plaintiffs elected to stand upon their pleading, judgment of dismissal was entered, and they appeal.

Appellants were lessees of a building used for storage of frozen foods. In 1952 respondent Wholesale Frozen Foods, Inc., assumed the rights and duties of the then sublessee. The individual respondents guaranteed performance of the sublease by the assignee, Wholesale. Wholesale paid no rent after May, 1953. Appellants recovered judgment for $17,600 against the present respondent for rental due under the sublease from June 1, 1953, to April 1, 1954. That judgment was affirmed.

(Schafer

v.

Wholesale Frozen Foods, Inc.,

151 Cal.App.2d 96 [311 P.2d 184].) Before decision upon that appeal, the present action was brought for rent accruing from May 1, 1954 to the end of the term.

The first two causes of action seek rentals, or damages for failure to pay rent, under the sublease from May 1, 1954, to the end of the term. Respondents do not question that each of these counts, considered alone, states a cause of action. They argue, however, that the original complaint in the case at bar affirmatively shows that the master lease between owners and appellants was terminated April 22, 1954, and that thus no rentals eould accrue under the sublease on or after May 1, 1954.

The rule is clear that if the original complaint contained allegations which rendered it vulnerable to general

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demurrer, the defect cannot be cured simply by omitting such allegation in a later pleading.

(Wennerholm

v.

Stanford University Sch. of Medicine,

20 Cal.2d 713, 716 [128 P.2d 522, 141 A.L.R. 1358].) Thus if the original complaint here does allege termination of the master lease before the period for which rentals are now sought from the sublessee, respondents’ position is sound.