Browning v. Aymard
| Decision Date | 23 January 1964 |
| Citation | 36 Cal.Rptr. 604,224 Cal.App.2d 277 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Arnold H. BROWNING and Amy E. Browning, Plaintiffs and Appellants, v. Pierre AYMARD and Caroline Aymard, Defendants and Respondents. Civ. 21356. |
Erik Jorgensen, San Francisco, for appellants.
Joseph A. Brown, San Francisco, for respondents.
Plaintiffs in this declaratory relief action appeal from a judgment entered upon the sustaining of defendants' general demurrer to the amended complaint.
Defendants' predecessors in interest had leased certain hotel property located on the upper floors of two adjoining buildings on Geary Street, San Francisco, to plaintiffs for a period of five years, commencing March 1, 1959. Defendants became the owners of the property on July 21, 1960.
A provision in the Housing Code of the City and County of San Francisco, which became effective on October 27, 1961, made it necessary to install a fire alarm system on the premises.
On September 19, 1962, the Department of Public Health of the City and County of San Francisco ordered defendants to complete certain work, including the installation of the fire alarm system.
On September 26, 1962, defendants served a notice on plaintiffs stating that unless this and other work was done within 3 days an unlawful detainer action would be commenced to recover possession of the premises. The plaintiffs filed this action on the next day.
In the amended complaint, plaintiffs allege that an actual controversy exists between the parties in that plaintiffs claim that the installation of the fire alarm system is a responsibility of the defendants, whereas defendants claim that such installation is the responsibility of the plaintiffs.
The lease contains the usual provision that the lessee shall keep and maintain the leased premises 'in good and sanitary order, condition and repair.' There is no contention that this provision obligates plaintiffs to install the alarm system.
Defendants rely upon the following provision in the lease: 'SIXTH: That the lessee will, at his sole cost and expense, comply with all of the requirements of all Municipal, State and Federal authorities now in force, or which may hereafter be in force, pertaining to the said premises, occasioned by or affecting the use to which said premises have been, are being, or are to be put by the lessee, and will faithfully observe in the use of the premises all Municipal ordinances and State and Federal statutes now in force or which may hereafter be in force.'
Defendants' position is that the foregoing clause is certain and unambiguous and needs no interpretation. They contend that it clearly imposes upon plaintiffs the obligation to install the fire alarm system. Thus, defendants continue, the amended complaint shows on its face that the relief sought by plaintiffs is precluded (see Bennett v. Hibernia Bank, 47 Cal.2d 540, 550, 305 P.2d 20).
Plaintiffs, on the other hand, contend that the parties to the lease did not contemplate or intend that the lessees should become obligated for any new construction in the nature of a permanent addition to the building; that, at most, the lessees would be responsible only for construction work in the nature of alterations to existing facilities if and when required by governmental authority (see cases collected in 33 A.L.R. 530, 537).
Plaintiffs also point out that they lease only the upper floors of the entire premises and that it is an inequitable and unreasonable interpretation of the lease to place the entire obligation in question upon them, particularly when their lease expires on March 1, 1964 and they will be forced to leave at that time.
Defendants urge that the controversy as to the fire alarm system could be litigated in an unlawful detainer action. However, they admit in their brief on appeal that they have not filed such an action, although free to do so since the restraining order heretofore issued herein was dissolved on December 18, 1962. Such an action would, of course, have to be initiated by defendants. It is not available to plaintiffs.
In arguing that the 'Sixth' clause is so clear and unambiguous that there can be no question that the obligation to install the fire alarm system is upon the plaintiffs, defendants rely principally upon Strecker v. Barnard, 109 Cal.App.2d 149, 240 P.2d 345.
In that case, after the lessee took over, the Division of Industrial Safety gave notice...
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Brown v. Green
...pertaining to said premises' " required lessee to make repairs to existing elevator ordered by county] with Browning v. Aymard (1964) 224 Cal.App.2d 277, 280, 36 Cal.Rptr. 604 [under identical compliance provision of lease, responsibility to install a fire alarm system was lessor's]; see 6 ......
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Mueller v. Bank of America, N.A.
...duties of the respective parties under a contract and requests that these rights and duties be adjudged by the court." Browning v. Aymard, 224 Cal. App. 2d 277, 280 (1964). "It is not essential, to entitle a plaintiff to seek declaratory relief, that he should establish his right to a favor......
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Alameda County Land Use Assn. v. City of Hayward
...controversy constitutes error. (Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 728, 737, 146 P.2d 673; Browning v. Aymard (1964) 224 Cal.App.2d 277, 281, 36 Cal.Rptr. 604.) Before a controversy is ripe for adjudication it "must be definite and concrete, touching the legal relations ......
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Glenn R. Sewell Sheet Metal, Inc. v. Loverde
...530, sections II, III, pages 530--541. Compare Strecker v. Barnard (1952) 109 Cal.App.2d 149, 240 P.2d 345, With Browning v. Aymard (1964) 224 Cal.App.2d 277, 36 Cal.Rptr. 604. See also, 1 American Law of Property, supra, section 3.80, pages 353--355. This rule also applies to covenants to ......