Marchese

—Cross-complainants and appellants Chris Márchese, Lena Márchese, Rosalie Cacitti, Carmen Russo, individually and as partners doing business as Márchese Farms, appeal from the judgment of dismissal of the Santa Clara County Superior Court of the first cause of action in the cross-complaint in favor of cross-defendants and respondents Standard Realty and Development Company and Western Pacific Railroad Company.

Issues Presented

1. Where the original lessor has approved the sublessee as a tenant the sublessee may sue the original lessor for breach of the implied covenant of quiet enjoyment.

2. The tenant need not vacate the property before bringing an action for breach of the implied covenant of quiet enjoyment.

3. There was a sufficient allegation that lessor breached the implied covenant of quiet enjoyment.

Record

On September 2, 1975, Raisch Construction Company filed a complaint against the City of Milpitas alleging that it had contracted with the city to construct certain municipal improvements on Wrigley Drive and related streets and that the city had allowed the real property upon which the improvements were to be constructed to become flooded, delaying the…