Smith v. Whyers

California Court of Appeal Oct 22, 1923 No. Civ. No. 4667.Published

Before: Nourse

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Holding. The court held that a tenant in an unlawful detainer action cannot assert a cross-complaint or counterclaim to frustrate the summary remedy of restitution, and modified the judgment to remove an improper award for post-judgment occupancy.

Issues

Whether a defendant in an unlawful detainer action may assert a cross-complaint or counterclaim to defeat the landlord's right to possession.
Whether the trial court erred in awarding damages for occupancy of the premises after the date of the judgment.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“The authorities all hold that in an action in unlawful detainer for the restitution of premises withheld by tenants in violation of the covenants of their lease they cannot frustrate the extraordinary remedy provided by the statute”

“the very purpose of the statute would be defeated if a defendant who claimed that she entered under a void lease through the fraud of the plaintiff should be permitted to remain in possession under the lease while the validity of the lease was being litigated.”

“The respondents concede that this award should not have been made. For this reason the judgment is modified by striking out the portion thereof awarding the sum of $8% per day for each day’s occupancy of the premises”

NOURSE, J.

Plaintiffs commenced this action in unlawful detainer to obtain possession of an apartment house

[194]

which the defendant held under a lease from the plaintiffs. The complaint was in the ordinary form demanding restitution of the premises and recovery of the unpaid rent. The defendant answered admitting the lease and setting up a special defense, counterclaim, and cross-complaint, each alleging that she had been fraudulently induced by the plaintiffs to enter into the lease and that she had rescinded it and was then ready to restore everything of value which she had received from the plaintiffs. The plaintiffs demurred to and moved to strike out the cross-complaint and the counterclaim and also moved to strike out all that portion of the answer containing the allegations of fraud on the part of the plaintiffs. All these motions to strike out were .granted. The action was thereafter tried and judgment went for the plaintiffs awarding them restitution of the premises, the full amount of the rent found to be due up to the date of the judgment and also the sum of $8% per day for each day’s occupancy of the premises after the date of the judgment.

On this appeal the appellant assigns as error the order of the trial court granting respondents’ motions to strike out the cross-complaint, counterclaim, and the special defense contained in the answer. It is also urged that the judgment is erroneous in that it did not give to appellant the right to offset against the judgment a deed of trust which had been deposited as security for her payment of the rent, and also that the judgment should not have contained an award for occupancy of the premises by the appellant after the date of the judgment.

On the first point it is argued that both under the Code of Civil Procedure and under the authorities relating to cross-complaints and counterclaims the appellant was authorized to plead both a cross-complaint and a counterclaim in this action in so far as the issue related to the recovery of money by way of unpaid rent. It is unnecessary to discuss the point. It is not a new one. The authorities all hold that in an action in unlawful detainer for the restitution of premises withheld by tenants in violation of the covenants of their lease they cannot frustrate the extraordinary remedy provided by the statute through the means of a cross-complaint or counterclaim. (See

Smith v. Whyers

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NOURSE, J.

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