Baugh v. Consumers Associates, Ltd.

SALSMAN, J.

Respondent filed a complaint in unlawful detainer against appellant. Service of summons was made upon the manager of appellant corporation, but no answer to the complaint was filed and appellant’s default was entered. Appellant then moved to set aside the default, pursuant to Code of Civil Procedure section 473. It accompanied its motion with a copy of its proposed answer. The motion was denied. Thereafter the court entered judgment finding appellant guilty of unlawful detainer, forfeiting appellant’s lease, granting respondent possession of the premises, and assessing damages for unlawful detainer in the amount of $20,700. Damages were trebled and judgment entered for $62,100, together with attorney’s fees and court costs.

Appellant’s primary contention on appeal is that respondent’s complaint did not state a cause of action upon which any relief could be granted. We agree, and therefore reverse the judgment.

Appellant’s proposed answer to the complaint, submitted in support of its motion to set aside the default, pleaded that respondent's complaint stated no cause of action, but as we have noted, that motion was denied and appellant’s answer was therefore unfiled. We do not know how much emphasis was placed upon this point in the argument of appellant’s motion, or whether the trial court considered it in any way, because the appeal here is on a clerk’s transcript. It is settled, however, that a party may assert at any time that the complaint does not state a cause of action.

(Prichard

v.

Kimball.,

190 Cal. 757, 765 [214 P. 863];

Berryman

v. Quinlan, 29 Cal.App.2d 608, 612 [85 P.2d 202].)

[674]

Respondent’s complaint was labeled as one in unlawful detainer. It alleged that a lease was made between respondent and appellant covering described premises, and that appellant had agreed to pay not less than $3,000 per month as rent. It further alleged nonpayment of rent for the months of January and February, together with a written demand and notice to pay rent or quit. A copy of the notice was attached to the complaint and made a part of it. The complaint prayed for the relief granted in the court’s judgment, which we have previously described.