Herman v. Campbell

SHINN, Acting P. J.

Plaintiff brought this action seeking a declaratory judgment that she is the holder of a valid and subsisting sublease upon certain real property in the city of Los Angeles, is rightfully in possession and entitled to remain in possession for the duration of the term of the lease. Roy Campbell, for himself and as trustee, filed a cross-complaint praying for restitution of the premises and damages for the use and occupation thereof by plaintiff. Findings and judgment were in favor of the cross-complainants and the judgment awarded them possession of the premises and also damages in the sum of $2,295, and the further sum of $225 per month until plaintiff should surrender possession. This appeal is by plaintiff and cross-defendant.

The premises in question are located on the northwesterly corner of Twelfth Street and Grand Avenue, and are improved with buildings occupied as rooming houses. In 1928, Wilbur

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Dudley Campbell and Ms wife, then owners of the property, leased the same to one Van Vrantin for a term of 99 years. Roy Campbell, individually, and as trustee, is the successor in interest of the former owners; defendant A. Otis Birch acquired the leasehold interest of Van Vrankin. On November 1, 1938, Birch subleased one of the buildings to plaintiff who later acquired the furniture contained in the other buildings and secured from Birch an extension of lease upon the premises for a term ending October 31, 1948. She has not failed to perform her obligations under her sublease from Birch. The latter, however, defaulted in the payment of rental and other sums under the basic lease. The court made extensive findings, none of which is challenged for insufficiency of evidentiary support. It was found that on February 15, 1946, Birch was in default in the payment of rent under the basic lease in a sum in excess of $160,000; that in March of 1944, and on several occasions thereafter, Campbell served Birch with written notice of default; that the defaults of Birch in payment of rent were not corrected; that on March 14, 1946, Campbell served Birch with another written notice of default and the same not having been cured, on or about March 21, 1946, he served Birch with a notice that he exercised his option to terminate the lease by reason of such defaults and failure to cure the same; that said Birch relinquished all interest in the premises and right to the possession, and no longer claims any right, title or interest in or to the same, but that plaintiff and cross-defendant refused and still refuses to deliver up possession of said premises. It was alleged in the complaint that in 1935, and later, Campbell had brought numerous actions against Birch, 17 in number, for rent which had fallen due under the lease, and it was in evidence that many judgments for rent had been obtained against Birch and remained unsatisfied. It was found that on or about March 22, 1946, Birch paid to Campbell approximately $80,000 on account of the judgments outstanding against him. It was also found that these judgments have been satisfied of record. It was alleged by plaintiff that the termination of the basic lease was the result of a conspiracy between Campbell and Birch, the purpose of which was to oust plaintiff from the premises. All of these allegations were found to be untrue. Appellant’s sole contention here is that Campbell did not terminate the lease because of the defaults of Birch but that it was voluntarily surrendered by Birch, from which premise it is argued that appellant’s sub