Amundson v. Shafer

WORKS, J.,

pro

tem.

This is an action of unlawful detainer in which the defendant appeals from a judgment in favor of the plaintiff. The amended complaint alleges, among other things, that the plaintiff is a married woman, but that “the matters alleged in this complaint” concern her sole and separate estate; that “the plaintiff herein is, and was, during all the times herein mentioned, the sole owner and proprietress of that certain business carried on under the name of the Amundson Drug Company,” in the city of Los Angeles; that the defendant has been in possession of a certain portion of a storeroom in Los Angeles “under an agreement with plaintiff for the renting thereof from month to month”; and that on August 30, 1915, “the plaintiff” notified the defendant, in writing, that from and after October 1, 1915, the terms of defendant’s lease would be changed so that there would be due from him for rent upon the premises occupied by him the sum of one hundred dollars per month. A copy of the notice was attached to the pleading as an exhibit and it was signed, “Amundson Drug Company, by Victoria C. Amundson.” The amended complaint also alleges that the defendant remained in possession of the premises occupied by him from the time of service of the notice until the commencement of the action; that, on October 5, 1915, “the plaintiff” made of defendant a demand in writing for the “payment of said rent”; and that a copy of the demand is attached to the pleading as an exhibit. The demand is signed “Amundson Drug Company, by Victoria C. Amundson.” It is also alleged in the amended complaint that defendant neglected and refused to comply with the demand and that he held over after default in the payment of rent. A demurrer, both general and special, was interposed to the amended complaint. The special grounds of demurrer were, in part, that the amended complaint was uncertain because it

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could not be ascertained from it whether the agreement for renting was made by plaintiff in her individual capacity or in the name of the Amundson Drug Company; or whether the rent alleged to be due was due to plaintiff or to the Amundson Drug Company. The assaulted pleading is uncertain in the respects mentioned, but the uncertainty is not related to substantial or material matters. The argument of the appellant upon the question of uncertainty has behind it the contention that an individual doing business under a fictitious name must affirmatively show, in a complaint based upon a right affecting or which is the property of the business, that he has complied with the provisions of sections 2466 and 2468 of the Civil Code. Those sections require the filing and publication of a certain certificate as a prerequisite to the right to maintain actions concerning the affairs of such a business. But a compliance with their provisions need not appear upon the face of a complaint. If the fact be that the person maintaining such an action has not complied with the sections mentioned, the point may be presented as a defense by way of plea in abatement.