Crescendo Corp. v. Shelted, Inc.

FOURT, J.

Shelted, Inc., appeals from a default judgment entered against it in an action for unlawful detainer instituted by Crescendo Corporation. Shelted’s sole contention on appeal is that the attempted service of summons and complaint on one of Shelted’s officers was insufficient.

[211]

Shelted, Inc., occupied premises on Sunset Boulevard in Los Angeles, California, under a written agreement of sublease with the primary tenant, Crescendo. By January 1967, Shelted owed Crescendo rent arrearages of $1,200 per month for the preceding five months or a total amount of $6,000. On January 4, 1967, Crescendo served Shelted with a three-day notice to pay rent or quit, declaring a forfeiture of the sublease under which Shelted occupied the premises. Baúl Mistos, Jr., of the Beverly Hills Attorney Service served the three-day notice on Carl Greenhouse, a Shelted officer, at his residence in Torrance, California, and Shelted acknowledges proper service of such notice.

On January 10, 1967, Crescendo commenced the present unlawful detainer action alleging in its complaint that Shelted refused either to pay rent or to surrender possession of the premises as demanded in the three-day notice. A copy of the summons and complaint was once again given to Mistos for service on Shelted, and Mistos testified that on January 12, 1967, he once again visited the Greenhouse residence with these documents. As he knocked on the apartment door he heard a man’s voice say that if the call was for him, to say that he was not at home. Immediately thereafter a woman opened the door and Mistos could see lying on the divan in the apartment a man whom he recognized from his earlier meeting as Carl Greenhouse. The woman, however, said that Carl Greenhouse was not at home and slammed the door on him when Mistos stated loudly that he was serving Greenhouse with a copy of the unlawful detainer. Mistos took the documents out to the carport where he found a car registered to Carl Greenhouse. He placed the papers under the windshield wiper so that they could not blow away and executed the standard form of declaration of service indicating that service took place on January 12,1967.

Greenhouse testified at the court hearing to set aside Shelted ’s default, that on the morning of January 13, 1967, he found the copy of the summons and complaint under the windshield wiper of his ear. He noted that these legal documents related to Shelted and Crescendo. He advised Shelted's other officers and directors and a day or two later he consulted an attorney on the subject. Shelted made no appearance in the unlawful detainer action and a default judgment was entered against it on January 31,1967.