Facts

The plaintiff sued the defendant alleging breach of an oral contract arising from a landlord/tenant situation for the amount of $50,000.

PLAINTIFF'S CONTENTIONS:
The plaintiff claimed that after the defendant had already received notice from the city that the premises at issue was to be torn down in February 2008, the defendant entered into an oral agreement with plaintiff to rent the condemned premises in April 2008. The plaintiff made no mention of the fact that he had already been occupying and doing business from the premises since approximately January 2007, by virtue of a separate agreement with a separate entity that plaintiff has chosen not to name as a defendant herein.

The plaintiff filed this instant action on the last day set for him to vacate the premises pursuant to the true landlord's 30-day notice to quit. Subsequent to plaintiff's filing the instant action, the plaintiff's landlord filed an unlawful detainer complaint, which was recently answered by plaintiff.

Therefore, plaintiff contended that the defendant was perplexed as to the terms of the alleged agreement, as well as its existence. Nonetheless, the plaintiff sought to recover compensatory damages approximately equivalent to plaintiff's alleged purchase price of his business from co-defendant Maria Isabel Salazar (Salazar), as well as attorneys' fees and costs.

DEFENDANT'S CONTENTIONS:
Defendant contended that neither plaintiff's original complaint nor the first amended complaint is verified.

Subsequent to plaintiff's filing the instant action, the plaintiff's true landlord, Alameda Swapmeet, filed an unlawful detainer complaint, which was subsequently answered by plaintiff. The defendant submitted that the court may take judicial notice of those proceedings.

In plaintiff's verified answer, the plaintiff admitted that Alameda Swapmeet, not defendant, is the owner of the premises; that the written, month-to-month, agreement to rent the premises was entered into between Alameda Swapmeet and plaintiff, on or about Jan. 1, 2007; and that plaintiff took possession of the premises on or about the date that agreement was entered. The plaintiff also admitted to having been personally served with Alameda Swapmeet's 30-day notice to quit, which plaintiff failed to comply with by the date demanded. The plaintiff's verified answer contained only one denial of the material allegations of the unlawful detainer complaint, that the rental agreement provides for attorneys' fees. The plaintiff's verified answer contained only one affirmative defense; that Alameda Swapmeet "rented an illegal structure and is under order by the city to demolish."

On July 21, 2008, trial was held in the unlawful detainer matter. Alameda Swapmeet moved for judgment on the pleadings. In opposition, the plaintiff specifically raised his asserted affirmative defense. This is the same allegation on which plaintiff based the instant action against this defendant; that the premises were rented to plaintiff illegally in violation and with notice of the city's demolition order. Plaintiff alleged in the unlawful detainer action the same assertion that he alleged against defendant, although plaintiff admitted in the unlawful detainer action that his true landlord is not, in fact, defendant. However, plaintiff's own admissions in that action establish that he had rented the premises owned only by Alameda Swapmeet, from Alameda Swapmeet, pursuant to a written agreement with Alameda Swapmeet, over a year before Alameda Swapmeet received any notice from the city. The plaintiff was therefore already in possession of the premises when the city gave its orders and when Alameda Swapmeet gave notice to plaintiff to vacate in compliance therewith.

The plaintiff also alleged this single cause of action against co-defendant Salazar, and joined both defendants therein, as if a single oral contract was responsible for plaintiff's obtaining Salazar's business (for which plaintiff claims he paid $30,000) and renting the premises in accordance to an agreement between Salazar and the landlord, which plaintiff was not a party. Defendant contended that there was no agreement between plaintiff and defendant, who, as plaintiff has admitted, is not the owner of the premises, and therefore could not have entered into any agreement with plaintiff to rent the premises (This is also an impossibility, as plaintiff admitted that he was already a tenant in possession of the same premises under a separate agreement with the owner, Alameda Swapmeet, at the time he claimed defendant "rented" premises it did not own to him).

Defendant contended that as such, it was clear that there was no agreement between defendant and plaintiff as claimed in this action; that this was impossible given the fact that plaintiff was already a tenant, and refused to vacate after Alameda Swapmeet's notice (based upon demolition of the premises under order by the city given months prior) to vacate had expired. As plaintiff admitted, this defendant had no right to rent the premises. The plaintiff had no right to sue defendant, just as he had no right of redress against Alameda Swapmeet, who had already obtained a judgment of possession, and plaintiff is forever estopped to assert otherwise.

Defendant lastly contended that the plaintiff failed to allege any intelligible and certain cause of action against defendant for which relief may be granted. Also, as more particularly set forth in defendant's concurrently-filed motion to strike, plaintiff improperly sought recovery of attorneys' fees, to which he is
not entitled.

Settlement Discussions

At the Feb. 11, 2009 mediation, the plaintiff demanded $50,000. The defendant offered $100. The plaintiff accepted the $100 settlement check.

Result

The case settled for $100.

Other Information

In response to plaintiff's affirmative defense, and given plaintiff's acknowledgment that the premises are not residential property, the court in the unlawful detainer action simply stated: "The problem with that is, of course, in commercial property there's no duty to make the premises habitable or fit for use, and that's - - those covenants and implied covenants are certainly hard for people who aren't lawyers to understand and hard for lawyers to understand on some days why the law works that way in the law of leasing property." On Sept. 9, 2008, the court sustained defendant Alameda Family Limited Partnership's demurrer as to first cause of action for breach of oral contract with 20 days leave to amend as of Sept. 9, 2008 and took off calendar defendant Alameda Family Limited Partnership's motion to strike as moot in light of the court's ruling on the demurrer. On Feb. 9, 2009, the court sustained defendant Alameda Family Limited Partnership's demurrer as to first cause of action for breach of oral contract with 20 days leave to amend as of Sept. 9, 2008 and took off calendar defendant Alameda Family Limited Partnership's motion to strike as moot in light of the court's ruling on the demurrer. FILING DATE: May 14, 2008.