Clark v. Spiegel

• Decision Date: 17 December 1971
• Court: California Court of Appeals Court of Appeals
• Parties: Edwin CLARK and Irene H. Clark, Plaintiffs and Respondents, v. Bernard SPIEGEL et al., Defendants and Appellants. Civ. 37469.

Page 86

99 Cal.Rptr. 86

22 Cal.App.3d 74

Edwin CLARK and Irene H. Clark, Plaintiffs and Respondents, v. Bernard SPIEGEL et al., Defendants and Appellants.

Civ. 37469.

Court of Appeal, Second District, Division 2, California.

Dec. 17, 1971.

Rehearing Denied Jan. 11, 1972.

Hearing Denied March 8, 1972.

Ball, Hunt, Hart, Brown & Baerwitz, Joseph A. Ball, Joseph D. Mullender, Jr., Phillip K. Fife, Long Beach, for defendants and appellants.

Levin, Oliker & Ballin by Harmon R. Ballin, Studio City, Albert & Albert by Carl A. Albert and Elaine H. Albert, Los Angeles, for plaintiffs and respondents.

ROTH, Presiding Justice.

This is an appeal from a judgment predicated upon a jury verdict of $65,000 awarded as damages to plaintiff-respondents, Edwin and Irene Clark (Clark) suffered as a consequence of their constructive eviction from leased premises by lessor, appellants who were the owners of the Granada Hills Plaza, a shopping center complex in the San Fernando Valley.

On November 30, 1961, Clark signed a ten-year lease for premises located in the Granada Hills Plaza in which he intended, and did, establish a coin operated laundry. The leased premises were at the time of the execution of the lease a part of land upon which the lessors were developing a market complex. Grant's Department Store, then under construction, occupied a prominent part of the same land and faced onto a proposed mall. Clark's premises, selected by agreement from plans reflecting the market complex to be developed, fronted upon the mall directly opposite Grant's Department Store and occupied a corner location contiguous to a rear parking lot area. The lease required appellants to keep the parking lot properly lighted.

The record shows without dispute that the presence of Grant's Department Store across the mall from the Clark premises was by appellants ¹ held out to be and was relied upon by Clark in consideration for the execution of the lease. ²

After the construction of the market complex had been completed, Grant's had difficulty with the traffic which flowed in and out of the doors which fronted the mall. Clark testified that his customers used these doors 'extensively'. According to the manager of Grant's, however, 90 per cent of 'what little' traffic came through these entrances consisted of shoplifters, mainly youngsters who came around after school closed. Whatever the reason-- Grant's began to first lock the mall doors intermittently in March or April of 1963 and then decided to bar this entrance permanently. Grant's sought appellants' permission for the permanent closing of the mall entrance and did not wall up the mall doors until appellants' consent in writing was obtained. Protest was made by Clark to appellants without avail during the time Grant locked its doors and during the time Grant's was seeking permission to wall up the doors that exited on the mall.

The maintenance of the mall in the manner set forth in the plans and the fact that Grant's would maintain an entrance and exit on the mall were not in the lease. However, appellants admitted that both facets of the mall setup were used as inducements to persuade tenants to sign. Thus appellant Abrams, one of the lessors and a lawyer, said in pertinent part in a letter to Grant: 'I have spoken separately to several of the tenants in the mall area and now have their oral consent. I went to this trouble because when leasing to these tenants, we used as an inducement, the fact that there would be access from the Grant store to the mall, and thus to the stores which these tenants would occupy. I don't want the tenants to claim that we were in violation of our leases with them by closing your doors. I am worried about this aspect. ³ (Emphasis added.)

Beginning in 1963, difficulty developed in respect of light maintenance on the rear parking lot contiguous to the Clark premises. The lease between the parties contained an express provision that proper lights were to be continuously maintained by appellants. Replacements of light fixtures and bulbs destroyed by vandals were made in 1964 but less so in 1965. Finally, repair work for light maintenance and replacement of broken or functionally exhausted lights was less and less up to standard. Commencing with early 1966, the lot was entirely dark.

Clark made continuing efforts to persuade appellants to remedy the lighting situation and as pointed out, he had vigorously protested the closing of the mall entrance. Clark's complaints in both respects proved unavailing. The present action was instituted in November 1966 and the premises were vacated in February 1967. ⁴

Appellants concede that 'The landlord's duty to maintain the parking lot lights is an obligation of the lease.' Moreover, they implicitly admit in the factual recital above, that Clark's complaints about their failure to maintain the lights were and are well-founded. ⁵ Finally, they take no issue with the evidence presented by Clark at trial which tended to show that a dark parking lot had an adverse effect on Clark's business. Since an estimated 40% Of the laundromat's business came at night, testimony to the effect that the lack of adequate lighting would impede 'customer relations' and be injurious to business was of obviously persuasive and probative value in determining that Clark's use and enjoyment of the leased premises was substantially affected by appellants' failure to maintain the parking lot lights. Continued breach of continuing covenant clearly constituted an eviction.

Appellants' attempt to avoid the necessary result of the concession made in respect of maintenance of lights on the parking lot by concentrating their fire on the controversy relative to the doors of Grant's Department Store which fronted on the mall and which were first closed in 1963. They contend variously it was conceded that there was no 'contemporaneous oral agreement' relating to the mall doors; that the lease was unambiguous and not susceptible to the interpretation that they had a duty to require Grant's to keep its mall doors open (Owsley v. Hammer, 36 Cal.2d 710, 227 P.2d 263) and that, in any event, Clark waived any breach because he did not vacate the premises within a reasonable time.

Although Clark did not claim a 'contemporaneous oral agreement' as appellants assert, it should be noted that the statement of Clark's counsel, apparently relied upon by appellants, is as follows: 'We're not here contending that there was an oral contract to leave open those doors. What we're saying is that as part of the written lease the doors fit in, that the extrinsic evidence both oral and written that the plaintiff (Clark) seeks to introduce shows that those doors and those passageways Were part of the written lease, it's not a Separate oral contract.' (Emphasis added.) Clark's counsel thus reiterates what one of appellants conceded in a letter saying 'I don't want tenants claiming we were in violation of our leases * * *' (supra). A separate oral agreement is indeed, as appellants contend, subject to defenses which are not applicable to an unintegrated written agreement, part of which is not reduced to writing but is provable by parol evidence. The issue posed therefore is whether the parol evidence in respect of the representation by appellants that the mall doors would be there and that there would be a continuing maintenance of the mall doors was a part of the unintegrated written agreement. (See footnote 3 and its text, Supra.) Masterson v. Sine, 68 Cal.2d 222, 225, 65 Cal.Rptr. 545, 436 P.2d 561; Pacific Gas & Electric Co. v. G. W. Thomas Drayage etc. Co., 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641; Delta Dynamics, Inc. v. Arioto, 69 Cal.2d 525, 72 Cal.Rptr. 785, 446 P.2d 785.) The admissibility of the evidence was thoroughly argued before the...