Lamey v. Masciotra

FOURT, Acting P. J.

Antonio Masciotra appeals from a judgment for damages for forcible entry and detainer -awarded by the trial court in favor of plaintiff Elizabeth Mary Lamey against Antonio Masciotra, Rose L. Diyorio and Pasquellina Raessler, both individually and as co-trustees of the estate of Michele Masciotra, deceased.

Appellant’s sole contention, that the evidence was insufficient to support the trial court’s determination that the lessors unlawfully entered and retained possession of the premises, is without merit.

Masciotra, Diyorio and Raessler, both individually and as co-trustees of the estate of Michele Masciotra, deceased, own and manage certain real properties including restaurant premises in a building situated at 14445 Ventura Boulevard in Sherman Oaks, California. On or about June 21, 1966, Elizabeth Lamey, formerly a teacher and writer of text books, entered into a two-year lease of the restaurant premises. Antonio Masciotra handled the transaction and negotiations, apparently acting on behalf of all of the property owners. Mrs. Lamey told Masciotra that she would remodel and

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redecorate the premises which she intended to operate as. a Mexican specialty restaurant and bar with mariachi entertainment. Masciotra agreed to pay for kitchen and bar remodeling and repair. The lease provided a minimum rental of $1,000 per month payable in advance on the first day of each month with additional percentage rentals on food and beverage sales to be calculated according to a formula provided by the lease. The lease further provided that the premises should not be sublet without the lessor’s prior written consent and that in the event the lessee should be ten days in arrears in rental payments the lessors should have the right to reenter and take possession without written notice.

Mrs. Lamey paid the first month’s rent and a $2,000 security deposit and went into possession. On or about July 22, 1966, the restaurant opened for business. By that time Mrs. Lamey had made a considerable investment in remodeling and furnishing the restaurant, accumulating the necessary inventory of food and beverages, obtaining a liquor license, and importing mariachi musicians from Guadalajara, Mexico, to provide entertainment. However, the restaurant was not immediately profitable, financial difficulties arose, and Mrs. Lamey was slow in paying certain subcontractors for work done on the premises and fell behind in her rental payments. D. K. Blanton of the Bank of America, which acted as agent for appellants for the collection of rents, on September 21 and again on October 10, 1966, sent to Mrs. Lamey registered letters relating to late rental payments. The October 10th letter specifically notified her that her tardy rental payments and her failure to pay the percentage rentals called for by the lease constituted defaults' thereunder, and that if all rents then due and payable were not received before October 14th the lessor would take possession of the property without further notice. Mrs. Lamey, who believed she was entitled to certain offsets from Masciotra against her lease rental payments, consulted the Bank of America which told her that it only followed Masciotra’s directions and had no authority to adjust amounts. Masciotra refused to discuss the matter with her.