Fish Construction Co. v. MOSELLE COACH WORKS, INC

[657]

Opinion

DALSIMER, J.

Defendants, as lessees of plaintiff, appeal from the judgment awarding plaintiff the sum of $20,500, plus $1,200 attorney’s fees, $157 costs, restitution of certain commercial premises, and a forfeiture of the written lease on said premises. Defendants contend that there is insufficient evidence to support the trial court’s implied finding that defendants had not relinquished possession of the premises. That being so, they contend that they were denied the opportunity to present evidence on their pleaded affirmative defense that the leased premises were not maintained in a safe and secure manner and on their pleaded denial that plaintiff had performed all covenants of the lease agreement. We agree and reverse.

The action against defendants was commenced as an unlawful detainer proceeding based on the failure of defendants to pay rent when due under a four-year written lease. Defendants answered, and the case was given a preferential trial date as required by Code of Civil Procedure section 1179a.

The defendants’ answer admitted that the rent claimed to be due in the three-day notice to pay rent or quit was in fact due and that the defendants had not paid the rent since the unlawful detainer complaint was filed. The answer also admitted defendants were still in possession of the property.

Defendants claimed to have vacated the leased premises one day before trial and to have delivered the keys to plaintiff’s lawyer with a letter advising plaintiff that defendants no longer claimed possession of the premises. Plaintiff’s lawyer admitted having received the keys and the letter on the day before trial, but told the court he wasn’t certain whether the keys were those for the leased premises.

The defendants offered no direct evidence that the premises were vacant. The plaintiff’s president, when told by his lawyer of the receipt of the keys and of the statements contained in defendants’ letter, testified that he did not go to the premises to see if they had been vacated.

The trial court, in its judgment restoring possession to plaintiff, impliedly found that defendants had not relinquished possession the day prior to trial, and therefore by law the court was not permitted to consider the defenses that plaintiff had not performed an express covenant of the lease and that the premises had not been maintained in a safe and secure manner. Defendants’ request for a statement of decision was denied because the trial lasted less than one day and no request for such a statement had been made prior to submission of the case for decision. (Code Civ. Proc., § 632.)