Majority
Opinion
Plaintiff appeals from summary judgment in favor of defendant attorney in a legal malpractice action.
The sublease gave Blanch the right to renew the lease for five years at $500 per month, provided the option was exercised in writing at least 90 days before the lease expired. The assignment gave Blanch “all [the original tenant’s] right, title and interest” in the master lease.
After obtaining the assignment, Blanch sublet the premises to a third person, who also had the option to renew the sublease for five years at $500 per month on the same conditions as in the sublease to Blanch, except the 90-day cutoff date was April 14, 1980.
On September 16, 1980, the landlord filed a verified complaint in unlawful detainer against original tenant, Blanch, and Blanch’s sublessee in possession of the premises. Attorney Richard E. Young, retained by Blanch in June or July 1980 to handle legal aspects of the lease, represented all defendants in the unlawful detainer action. The defendants’ answer, verified by the original tenant, but not Blanch, asserted all defendants exercised “an option to renew the lease for the same terms and conditions for an additional five-year period by so orally advising [the landlord] between the first week of July, 1980, at the subject premises.” The landlord prevailed in the unlawful detainer action.
Blanch then filed a verified complaint against Young for legal malpractice, claiming Young negligently failed to exercise Blanch’s option to renew the lease under the terms of Blanch’s sublease with the original tenant, i.e., written notice at least 90 days before expiration of the lease. Blanch claimed $36,000 in damages, the difference between the fair rental value of the property to a sublessee, $1,100 per month for five years, and the $500 per month he would pay under the renewed lease.
Young asserted Blanch was bound by the admission in the verified answer to the unlawful detainer—which Young prepared—that each defendant ex
1 The only copy of the sublease in the record on appeal is unsigned by Blanch or anyone else on behalf of Fender Bender, Inc.
Blanch did not personally verify the answer filed on his and his codefendants’ behalf in the unlawful detainer action, however. The admission in that pleading, i.e., that the original tenant, assignee-sublessee Blanch, and Blanch’s sublessee each exercised the $500 per month, five-year lease renewal, is contradicted by Blanch’s declaration opposing the motion for summary judgment. There, Blanch asserts he never saw the verified answer prepared by Young, his sublessee did not exercise the option to renew, and there was no evidence in the unlawful detainer action of anyone’s exercising a renewal option (which would explain why it was lost). This was sufficient to raise a triable issue of fact; summary judgment was not appropriate.
We do not end our analysis here, however. A “motion by a defendant under section 437c of the Code of Civil Procedure necessarily includes a test of the sufficiency of the complaint . . . motions for summary judgment in such situations have otherwise been allowed as being in legal effect motions for judgment on the pleadings.” (C. L. Smith Co. v. Roger Ducharme, Inc. (1977) 65 Cal.App.3d 735 , 745 [ 135 Cal.Rptr. 483 ].) Here, the verified complaint is ambiguous on its face, and judgment on the pleadings would have been proper. (See Jones-Hamilton Co. v. Franchise Tax Bd. (1968) 268 Cal.App.2d 343 , 347 [ 73 Cal.Rptr. 896 ].) Blanch claims Young was negligent in failing to serve written notice of renewal, “all in accordance with paragraphs four through seven of Exhibit ‘A’.” But exhibit “A,” the master lease, does not have numbered paragraphs and does not require written notice to renew. Blanch’s sublease, however, is so numbered and does require written notice at least ninety days before expiration of the master lease. Consequently, it is not clear whether Blanch is proceeding as assignee of the master lease or as the original tenant’s sublessee.
The distinction is critical, for Young is entitled to judgment as a matter of law if Blanch is suing as sublessee. As sublessee Blanch had 90 days to renew; and he admits he did not retain Young within 90 days of expiration of the lease. As assignee of the original tenant’s position, he inherited no such impediment, however. If he can plead Young was aware of the assignment and obliged to assert his rights under that document, Blanch might yet revive this moribund lawsuit.
Accordingly, summary judgment for Young is reversed. The case is remanded to superior court with directions to enter judgment on the pleadings
Trotter, P. J., and Wallin, J., concurred.
Cases cited
- C. L. Smith Co. v. Roger Ducharme, Inc. 65 Cal.App.3d 735 at 745 p. 1019
- Jones-Hamilton Co. v. Franchise Tax Board 268 Cal.App.2d 343 at 347 p. 1019