North 7th Street Associates v. Constante

111 Cal.Rptr.2d 815 (2001) 92 Cal.App.4th Supp. 7 NORTH 7th STREET ASSOCIATES, Plaintiff and Respondent,

v.

Guillermo CONSTANTE, Defendant and Appellant.

No. BV 22892. Appellate Division, Superior Court, Los Angeles County.

July 17, 2001. [816] A. Christian Abasto and Kenyon Dobberteen, Legal Aid Foundation of Los Angeles, for Defendant and Appellant.

Allen R. King, Los Angeles, for Plaintiff and Respondent.

OPINION AND JUDGMENT

BEVERLY, P.J.

Defendant and appellant Guillermo Constante appeals from the judgment entered against him and in favor of plaintiff and respondent North 7th Street Associates.

This is an action in unlawful detainer. The complaint was based on appellant's failure to vacate the premises following expiration of a 30-day notice to quit. Immediately before trial, respondent made an oral motion to amend the complaint. The amendment alleged that appellant was unlawfully detaining the premises following service of a three-day notice to pay rent or quit, which notice was served approximately six weeks before the 30-day notice was served. Appellant opposed the motion to amend, requesting a continuance to prepare to meet the new allegations should the motion be granted. The trial court [817] granted the motion to amend and denied the request for a continuance. Following a brief recess, trial was held based upon an unlawful detainer following service of the three-day notice to pay rent or quit. Judgment was given for the respondent and this appeal followed.

Appellant contends that the judgment must be reversed because:

1. The amendment to the complaint stated a new and different cause of action not based on the same general set of facts alleged in the original complaint;