Wheeler v. Bainbridge

84 Cal.App.2d Supp. 849 (1948) REY B. WHEELER et al., Appellants,

v.

KATHERINE BAINBRIDGE et al., Respondents.

California Court of Appeals.

Mar. 15, 1948. G. Gailliard Bauman for Appellants.

Otto A. Gerth for Respondents.

BISHOP, J.

[1a] The question presented, on this appeal from a judgment of dismissal following an order sustaining a demurrer, to appellants' complaint, without leave to amend, is in essence this: Is a landlord prohibited by the Federal Housing and Rent Act of 1947 [61 Stats. 200; 50 U.S.C.A. App., 1899] from taking any step he finds desirable to give him a cause of action to evict his tenant, or is its effect to prohibit him from pursuing the remedy of an action to evict? We have concluded that it is the use of the remedy that is prohibited, and that the demurrer should have been overruled.

[2] Plaintiffs' complaint revealed that the defendants were tenants of one of plaintiffs' apartments under a month-to-month tenancy, the rent being $50.50, payable in advance on the 8th of each month. On October 13, 1947, the plaintiffs caused a notice to be served on the defendants advising them that their tenancy was terminated as of a month later, that is, on November 13, and that on that date the defendants were to surrender possession of the apartment. Up until the complaint was filed, November 18, the defendants still remained in possession of the property.

These facts, without more, clearly stated a cause of action, under the state law, entitling the plaintiffs to a judgment evicting the defendants. (Palmer v. Zeis (1944), 65 Cal.App. 2d Supp. 859 [151 P.2d 323].) [3] What additional facts must be stated to make the complaint sufficient, having the federal law in mind? As we have held, with respect to former federal restrictions upon eviction actions (Lester v. Beer (1946), 74 Cal.App.2d Supp. 984, 988 [168 P.2d 998, 1001]), facts revealing that the landlord was free from federal restraint must be alleged in the complaint, not because they are necessary to reveal that the landlord had a cause of action to evict a tenant, but because the complaint should show, in addition to a cause of action, freedom from federal restraint upon bringing an action to enforce it. [1b] If there is any federal restraint upon the present action it is found in the opening words of section 209 of the House and Rent Act of 1947, which became effective July 1, 1947: "(a) No action or proceeding to recover possession of any controlled housing accommodations with respect to which a maximum rent is in effect under [84 Cal.App.2d Supp. 851] this title shall be maintainable by any landlord against any tenant in any court, notwithstanding the fact that the tenant has no lease or that his lease has expired, so long as the tenant continues to pay the rent to which the landlord is entitled unless ---."