Cohen v. Superior Court of S.F.

SIMS, J. Petitioner, the plaintiff in an action of unlawful detainer, seeks a writ of mandate commanding respondent court to give that action precedence on the pretrial calendar in order to expedite setting it for trial. (See Code Civ. Proc., § 1179a1; Kartheiser v. Superior Court (1959) 174 Cal.App. [5522]d 617, 621-623 [345 P.2d 135]; and Lori, Ltd., Inc. v. Superior Court (1946) 74 Cal.App.2d 442, 443 [168 P.2d 982],)2

Real parties in interest contend that there is no issue remaining in relation to the right to possession of the premises in question; that the action has become transmuted into a mere civil action for damages; and that therefore there is no longer a right to precedence.

The record before this court indicates that there are factual and legal issues to be resolved in order to determine whether real parties in interest continue to interfere with petitioner’s right to possession. A peremptory writ must issue.

According to the complaint and the declarations filed by petitioner in support of her motions to advance, she leased the premises involved to real parties in August 1956. At the same time, she sold a cleaning business and the personal property and trade fixtures used in connection therewith to real parties in interest and others to whose share real parties have succeeded. The lease, which was originally for a five-year term, was renewed for an additional five years in 1961 so that it expired August 31,1966.

According to the complaint real parties in interest failed to use and maintain the premises as provided in the lease, and in January 1966 the petitioner served them with a notice to quit for breach of the conditions in the lease. The tenant failed to vacate, and petitioner filed her complaint for “Unlawful Detainer Termination of Lease Damages” in May. Real parties in interest admitted they were in possession of the premises by their answer which was filed the same month.

At the expiration of the term provided in the lease the tenants purported to surrender the premises by returning the keys to petitioner and by moving out some of their equipment and personal property. The declaration of petitioner asserts that the tenants left on the premises a boiler, a dryer, a large counter, shelves and racks, and a vapor return tank, and that the presence of these articles effectively deprives petitioner of the possession of the premises.