Antonio Masciotra appeals from a judgment for damages for forcible entry and detainer -awarded by the trial court in favor of plaintiff Elizabeth Mary Lamey against Antonio Masciotra, Rose L. Diyorio and Pasquellina Raessler, both individually and as co-trustees of the estate of Michele Masciotra, deceased.
Appellant’s sole contention, that the evidence was insufficient to support the trial court’s determination that the lessors unlawfully entered and retained possession of the premises, is without merit.
Masciotra, Diyorio and Raessler, both individually and as co-trustees of the estate of Michele Masciotra, deceased, own and manage certain real properties including restaurant premises in a building situated at 14445 Ventura Boulevard in Sherman Oaks, California. On or about June 21, 1966, Elizabeth Lamey, formerly a teacher and writer of text books, entered into a two-year lease of the restaurant premises. Antonio Masciotra handled the transaction and negotiations, apparently acting on behalf of all of the property owners. Mrs. Lamey told Masciotra that she would remodel and
Mrs. Lamey paid the first month’s rent and a $2,000 security deposit and went into possession. On or about July 22, 1966, the restaurant opened for business. By that time Mrs. Lamey had made a considerable investment in remodeling and furnishing the restaurant, accumulating the necessary inventory of food and beverages, obtaining a liquor license, and importing mariachi musicians from Guadalajara, Mexico, to provide entertainment. However, the restaurant was not immediately profitable, financial difficulties arose, and Mrs. Lamey was slow in paying certain subcontractors for work done on the premises and fell behind in her rental payments. D. K. Blanton of the Bank of America, which acted as agent for appellants for the collection of rents, on September 21 and again on October 10, 1966, sent to Mrs. Lamey registered letters relating to late rental payments. The October 10th letter specifically notified her that her tardy rental payments and her failure to pay the percentage rentals called for by the lease constituted defaults' thereunder, and that if all rents then due and payable were not received before October 14th the lessor would take possession of the property without further notice. Mrs. Lamey, who believed she was entitled to certain offsets from Masciotra against her lease rental payments, consulted the Bank of America which told her that it only followed Masciotra’s directions and had no authority to adjust amounts. Masciotra refused to discuss the matter with her.
Finally, on account of her mounting financial problems, Mrs. Lamey sought a purchaser for the restaurant business. Sometime in mid-October she located Mr. Chisholm, an experienced restaurateur, who made her an" offer to purchase the business and gave her a check as a deposit thereon. On or about October 20 she took, inventory. On the morning of Friday,
On the day that Masciotra had the locks changed on the demised premises, Elizabeth Lamey had the restaurant fully stocked with food and beverages sufficient to last approximately ten days. After the locks had been changed, the bartender at Masciotra’s request removed the restaurant’s liquor supply. It was, of course, impossible to open the restaurant for business; the chef was locked out when he reported for work and he agreed to stay and notify the purveyors as they arrived to make deliveries that the place was closed. The restaurant furnishings were subsequently removed to a warehouse for safekeeping. The lessors retained possession of thé premises, the furnishings, the supplies, and the personal property belonging to Mrs. Lamey (except for a few items returned at her specific request) until the time of trial.
Appellant contends, in substance, that the evidence was-insufficient to sustain the trial court’s finding that “on or about October 21st, 1966, said defendants by and through their agent, Antonio Masciotra, made an unlawful entry into said premises and unlawfully retained possession thereafter and turned the plaintiff out of possession.” He bases this contention on the fact that Mrs. Lamey received the registered letter of October 10, 1966, declaring notice of the lessors’ intentions to proceed according to the express terms of their lease to use self-help to regain possession.
Under California statutory law a tenant is entitled to a three-day notice to pay rent or quit which may be enforced by summary legal proceedings (Code Civ. Proc., § 1161) but this notice is valid and enforceable only if'the lessor strictly complies with the specifically described notice conditions. (Code Civ. Proc., § 1162.) Unless the tenant cannot be found at the premises, the lessor must introduce evidence that the notice was personally served on the lessee.
(Jordan
v.
Talbot,
• Finally, ‘‘ The failure of the tenant to pay rent does not
ipso facto
work a forfeiture of the leasehold; it merely gives the lessor the right to terminate the lease in the manner provided by law, that is, by proceeding in accordance "with Civil Code section 791 and Code of Civil Procedure section 1161, subdivision 2. [Citations.] A lessor .-of demised premises is not entitled to take possession by forcible entry under a provision in the lease to the effect that if rent be due and unpaid the lessor may enter and remove all persons from the demised premises. [Citations.] ”
(Haydell
v.
Silva,
The judgment is affirmed.
Lillie, J., and Thompson, J., concurred.