Greenberg v. Koppelow

GOODELL, J.

In this unlawful detainer action judgment was awarded for the restoration of possession to the plaintiffs, $1,150 damages for wrongful detention, $500 attorney fees, and costs.

The judgment, dated July 18, 1945, shows that the $1,150 was for “damages already accrued at the rate of $500.00 per month commencing May 11, 1945.”

On January 17, 1938, the predecessors of respondents, as lessors, and the predecessor and assignor of appellants, as lessee, entered into a written lease of the apartment house in question at 1327 Leavenworth Street, San Francisco, for the term of 7 years ending on October 30, 1944, at the monthly rental of $225 for the first 2 years and $250 for the last 5. During the term the respondents purchased the property.

[633]

The appellants were then in possession as assignees of the original lessee and so continued.

From the expiration of the lease, on October 30, 1944, until the service, on April 9, 1945, of a 30-day notice to quit (as to which notice, its form, timeliness and service, there is no controversy) the appellants admittedly were in possession. The present action is not concerned with the unpaid rent for that intervening period or for any time prior to May 11, 1945, when the 30-day notice expired; other actions deal therewith.

The only question presented for decision is as to the size of the money judgment. The appellants contend that the court was bound to compute the damages at the rate of $300 a month by virtue of the following provision in the lease: ‘ ‘ 13. Any holding over after the expiration of the term hereof without the consent of Lessor shall be deemed to be a tenancy from month to month at a monthly rental of Three Hundred Dollars ($300.00) and shall continue to be on the same terms and conditions as herein specified.”

Section 1161, Code of Civil Procedure, provides that

“A

tenant of real property ... is guilty of unlawful detainer: . . . When he continues in possession, . . . after the expiration of the term for which it is let to him, without the permission of his landlord. ...” Paragraph 13 of the lease speaks of a holding over “without the consent of Lessor.” Because of this coincidence of language between statute and lease the appellants argue that “under the plain and unequivocal language of Section 13 of the lease quoted above, rental damages were restricted to the sum of $300 per month” and, further, that “Section 13 of the lease covers the exact situation existing in the present case, and cannot be construed to cover any other situation. ... No other situation than the instant one can be conceived where section 13 would have any application . . . the plain and unambiguous language of the contract must be given effect.”