Simons v. Edouarde

McCOMB, J.

From a judgment in favor of defendants predicated upon the sustaining of a demurrer to their complaint without leave to amend in an action to recover damages for fraudulent abuse of process, plaintiffs appeal.

[827]

Fads:

Plaintiffs filed a complaint seeking to recover damages for an abuse of process alleging (1) that plaintiffs and a cotenant, namely, Edward H. Simons, husband of plaintiff, Isabella Simons, were tenants of defendants, occupying a rent-controlled apartment from and after November 12, 1946; (2) that defendants herein caused an unlawful detainer action to be instituted in the Municipal Court of the City of Los Angeles against the plaintiffs herein for the recovery of possession of the said rent-controlled apartment; and (3) that in such action defendants alleged as their sole ground for evicting the plaintiffs herein that one of the defendants herein, to wit, Jane Melville Edouarde, “seeks in good faith to recover possession of the said housing accommodations for her own and personal use and occupancy as housing accommodations. ’ ’ Plaintiffs filed an answer in said action denying the above quoted allegation. Thereupon a trial was had upon the issues. A judgment was thereafter rendered and entered in said action for the plaintiffs therein (respondents herein) against the defendants therein (appellants herein) on October 2,1947. Plaintiffs in said action did not vacate the premises but remained in possession of same, and on November 3, 1947, defendants caused a writ of possession to be issued in the aforesaid action and to be placed in the hands of the marshal of the said municipal court for execution.

Under and pursuant to the said writ of possession, the plaintiffs were, on November 4, 1947, forcibly evicted from the leased premises by said marshal, and plaintiffs ón the same day, namely, November 4, 1947, moved back into said premises and continued to occupy the same until May 18, 1948, at which time they were adjudged guilty of contempt of the said municipal court and imprisoned for a period of five days. Plaintiffs’ cotenant, husband of plaintiff, Isabella Simons, continued to occupy the aforesaid premises until December 13, 1948.

Defendants never intended, in good faith, to use said premises as housing accommodations for their own personal use and occupancy during all of the times therein mentioned but did make a different disposition of said premises by selling the same on November 26, 1948.