Haydell v. Silva

SALSMAN, J.

The plaintiff appeals from a judgment in favor of the defendant in an action for wrongful termination of a lease, and for the recovery of personal property remaining on the leased premises. The court also granted judgment in favor of the defendant on his cross-complaint for payment of a promissory note.

Prom our review of the record we have determined that the findings do not support the judgment and that the judgment must he reversed.

The plaintiff testified and produced a number of witnesses. The defendant was examined by the plaintiff pursuant to Code of Civil Procedure section 2055, and was in turn questioned by his own counsel. Aside from his own testimony when called by the plaintiff, and the introduction of the note

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and a receipt in support of his cross-complaint, the defendant produced no evidence.

The plaintiff was the operator of a restaurant in Oakland. She occupied the premises under a written lease with the defendant. The plaintiff had personal property on the premises consisting of restaurant and bar fixtures for which she originally paid $3,500, and to which she later added numerous other items, such as a stove, a new refrigerator at a cost of $1,500, a commercial size meat grinder, a double sink, vegetable bin, utility table, and a hot water heater. At the time of the events here in question she also had on hand a stock of beer, wine, champagne and restaurant merchandise of the value of $2,000, according to her testimony.

Under the lease between the parties the plaintiff’s rent was due and payable on the first day of the month. The defendant claimed that rent for the month of April was unpaid. The plaintiff denied this. The plaintiff closed her restaurant at 2 a. m. on May 1st, this being her usual closing hour, and returned later in the day to find the premises padlocked. Posted outside the restaurant premises was a “Notice of Termination of Lease.” The notice was dated May 2d, and was signed by attorneys for the defendant, and purported to terminate the plaintiff’s lease for nonpayment of rent.

The defendant admits that he took possession of the premises on May 1st, and has excluded the plaintiff ever since. The defendant also admits that, as of May 1st only the April rent was delinquent, although the rent for the month of May was due on the first.