Mattal v. American Trust Co.

• Decision Date: 18 October 1962
• Citation: 208 Cal.App.2d 645,25 Cal.Rptr. 517
• Parties: Murray MATTAL, Plaintiff and Appellant, v. AMERICAN TRUST COMPANY, a corporation, and Jane B. Kiesel, Defendants and Respondents. Civ. 20208.
• Court: California Court of Appeals Court of Appeals

Page 517

25 Cal.Rptr. 517

208 Cal.App.2d 645

Murray MATTAL, Plaintiff and Appellant, v. AMERICAN TRUST COMPANY, a corporation, and Jane B. Kiesel, Defendants and Respondents.

Civ. 20208.

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

Oct. 18, 1962.

Rehearing Denied Nov. 5, 1962.

Hearing Denied Dec. 12, 1962.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, San Francisco, Albert E. Levy, San Francisco, of counsel, for appellant.

Eugene Elerding, Berkeley, John U. Calkins, Jr., Berkeley, of counsel, for respondents.

SHOEMAKER, Justice.

Plaintiff Murray Mattal brought this action against defendants American Trust Company and Jane Kiesel to recover damages for breach of a covenant in a written lease.

The complaint alleged that on February 15, 1960, defendants leased to the plaintiff a certain building located in Lafayette, California ¹; that the lease, which was incorporated by reference into the complaint, provided in part as follows: '19. If the demised premises be damaged or destroyed by fire or other casualty and they cannot be repaired or restored within sixty (60) days after possession is given to the Lessor for the purpose of so restoring the same, this lease shall terminate and the parties hereto shall be released from all obligation hereunder thereafter accruing; but if the damage so caused can be repaired within said period of sixty (60) days, the Lessor shall repair the demised premises at the Lessor's own cost and expense * * *. With respect to any damages of the demised premises which the Lessor is obligated to repair under the terms of this paragraph, the provisions of Section 1932, subdivision 2, and of Section 1933, subdivision 4 of the Civil Code of the State of California are waived by the Lessee'; that on April 20, 1960, a fire damaged the demised premises; that plaintiff then gave defendants written and oral notice that he considered them obligated under paragraph 19 of the lease to restore the premises; and that defendants failed to comply with this request and informed the plaintiff that they would not restore the premises.

Both defendants answered, denying that the complaint stated a cause of action, and alleging that the leased premises had been damaged in such a manner as to preclude restoration within a 60-day period.

Defendants then moved for summary judgment on the ground that the complaint presented no triable issue of fact. Defendants take the position that the demised building had been completely destroyed by the fire and that paragraph 19 of the lease obligated them only to repair damage but not to restore or rebuild the entire structure subject to the lease. Plaintiff, in opposing the motion for summary judgment, conceded that a complete rebuilding would be necessary but contended that paragraph 19 obligated defendants to undertake such restoration. The only issue of fact tendered by the affidavits of the respective parties was as to whether or not, under paragraph 19 of the lease, the landlord was bound to rebuild.

The trial court, considering this sole question, ruled in favor of defendants' contention, and granted the summary judgment, from which plaintiff appeals.

The problem before this court is whether paragraph 19 of the written lease expressly required respondents to rebuild the demised premises in the event that they were totally destroyed by fire. There can be no doubt that, in the absence of such a covenant, respondents were under no such duty. Civil Code, section 1933, subdivision 4, provides that 'The hiring of a thing terminates * * * [b]y the destruction of the thing hired.' Accordingly, in the absence of an express agreement to the contrary, respondents' duties as a landlord would immediately have ceased upon the destruction by fire of the demised premises.

It is also clear, as respondets point out, that a general covenant to 'repair' is not in itself sufficient to prevent the application of section 1933. In Realty & Rebuilding Co. v. Rea (1920), 184 Cal. 565, 194 P. 1024, the court held that a leasehold covenant requiring the lessess to 'repair and keep in good order, condition and repair the whole of said premises' (p. 573, 194 P. p. 1028) did not obligate them to rebuild a structure which had been completely destroyed. The court stated that a general covenant to repair does not constitute an agreement to rebuild unless the term 'repair' also means to replace. 'To repair means to mend an old thing, not to make a new thing; to restore to a sound state something which has become partially dilapidated, not to create something which has no existence. [Citation.] When we speak of repairing a thing, the very expression presupposes a thing in existence to be repaired. If a workman undertakes to repair an article, he obviously contemplates making whole an existing article and not the manufacture of something new.' (P. 576, 194 P. p. 1029.) (Also see Friedman v. Isenbruck (1952), 111 Cal.App.2d 326, 244 P.2d 718.)

Appellant contends, however, that the Realty and Friedman cases were both decisions construing covenants requiring the tenant to repair. He urges that a different rule ought to govern a landlord's covenant to repair. Appellant also asserts that paragraph 19 cannot be viewed merely as a general covenant to 'repair' since it expressly requires respondents to repair or restore damaged or destroyed premises. Since this latter contention is clearly sound, it becomes unnecessary to determine whether the reasoning of the Realty case would be equally applicable to a landlord.

Paragraph 19 provided, as above noted, that 'If the demised premises be damaged or destroyed by fire * * * and they cannot be repaired or restored within sixty (60) days after possession is given to the Lessor for the purpose of so restoring the same, this lease shall terminate * * * but if the damage so caused can be repaired within said period * * * the Lessor shall repair the demised premises at the Lessor's own cost and expense * * *' (emphasis added). This paragraph, when read as a whole, clearly cannot be construed as a mere covenant to repair. Had such been the intent of the parties, there would...