Risco v. Reuss

DORAN, J.

Plaintiff appeals from a judgment dismissing the action herein after a demurrer to plaintiff’s second

[244]

amended complaint was sustained without leave to amend further.

The material allegations of the complaint in question are as follows:

“That on or about the 31st day of January, 1939, the plaintiff was the owner of a lease on and in possession of, the premises known as 7908 South Vermont Avenue, Los Angeles, California, used and operated as a general garage and that plaintiff had operated said business on said premises for eight years and had builded a good will of business in connection with the general garage; that on or about the 31st day of January, 1939, the defendants willfully and maliciously, intending to injure the plaintiff, cut the lock off from the door of said premises, entered and ousted the plaintiff therefrom and stationed the defendant Roy C. McGinn at the door of said premises with a revolver; that as a direct and proximate result of the willful and malicious acts on the part of the defendants, as hereinbefore alleged the plaintiff was deprived of his right of possession, leasehold interest and business”. To this complaint defendants demurred both generally and specially. The general demurrer only need be considered here.

The complaint in question, as a statement of a cause of action in trespass, is fatally defective in that it fails to show a lawful possession of the premises by plaintiff at the time of the alleged trespass by defendants. Plaintiff’s sole claim to possession of the premises is through a lease, no other right to possession is shown. But plaintiff merely alleges that on or about the date in question he “was the owner of a lease” on the premises. There is nothing to show that the lease was valid and in effect on the approximate date alleged. From all that appears, the lease may have expired some time previous to the approximate date of the alleged trespass. Nor does the allegation that for eight years the plaintiff “had” operated a business on the said premises throw any light on plaintiff’s right to possession of the premises on the date alleged. It fails to allege when the eight years started or ended. Moreover, as to the alleged acts claimed to constitute the trespass, there is nothing to show that those acts were in themselves wrongful unless plaintiff were shown to have been rightfully in possession of the premises. From all that appears, defendants may have been