Kwok v. Bergren

Opinion

LEVINS, J.

*

Respondent Albert Y. K. Kwok brought an action for unlawful detainer against appellants Scot Bergren and Cindy Sapp, and other defendants, for unpaid rent, restitution of the leased premises, for

[598]

feiture of the lease, attorney fees and costs. Appellants filed timely answers. After á nonjury trial, judgment was entered in favor of respondent on June 5, 1980, and amended on June 13, 1980. Notice of appeal was timely filed after motions for stay of execution were denied.

On July 10, 1972, respondent as lessor executed a written commercial lease with Paul C. DeBernardis as lessee, and with respondent believing Scot Bergren to be a partner and lessee from the inception. Paragraph 27 of said lease allowed assignment and subletting with lessor’s written consent. Bergren, Paul C. and Nancy DeBernardis entered into a written assignment of the lease to Bergren on July 23, 1976, and respondent was aware of this assignment but never substituted Paul DeBernardis out of the lease. Subsequently, Bergren subleased to appellant Sapp and Martin Davis and respondent recognized Bergren as the “rent tenant,” the person who was responsible for rent payments. Bergren instructed Davis to pay the rent obligation to respondent directly, which Davis did during the first three days of each month thereafter. In April 1979 Bergren was told by Davis that he had made the April rent payment, but it was not until this lawsuit was filed that Bergren discovered Davis’ poor financial condition, his recent heart attack and his wife’s being stricken with multiple sclerosis. Bergren caused Davis to move from the premises and attempted to pay the rent to respondent. Respondent asserted that appellants and other defendants had been served with a proper three-day notice to pay rent or quit under Code of Civil Procedure section 1162 and refused the April rent.

On April 2, 1979, about noon, one of the attorneys for respondent showed a copy of the three-day notice to pay $1,650 April rent or quit to one Steve Tully, whom he thought to be managing the leased premises. The notice was addressed to' “Paul C. DeBernardis, Nancy DeBernardis, Scot Bergren, Bergren Partnership, Martin Davis, John Doe Neal, Cindy Sapp, individually, and doing business as ‘Machine Shop,’ .. . and all other tenants in possession.”