Mau v. Hollywood Commercial Buildings, Inc.

• Decision Date: 01 August 1961
• Citation: 15 Cal.Rptr. 181,194 Cal.App.2d 459
• Parties: Kathryn MAU, Plaintiff and Appellant, v. HOLLYWOOD COMMERCIAL BUILDINGS, INC., a corporation, et al., Defendants and Respondents. Civ. 24892.
• Court: California Court of Appeals Court of Appeals

Page 181

15 Cal.Rptr. 181

194 Cal.App.2d 459

Kathryn MAU, Plaintiff and Appellant, v. HOLLYWOOD COMMERCIAL BUILDINGS, INC., a corporation, et al., Defendants and Respondents.

Civ. 24892.

District Court of Appeal, Second District, Division 1, California.

Aug. 1, 1961.

Henry C. Clausen, Clausen & St. Clair, Richard G. Burns, San Francisco, for appellant.

Irsfeld, Irsfeld & Younger, Hollywood, Robert S. Forsyth, Los Angeles, for respondents.

FOURT, Justice.

This is an appeal from the judgment entered upon a jury verdict in respondent's favor after a trial upon appellant's amended complaint for damages based upon six causes of action. The litigation arose primarily out of the landlord-tenant relationship between appellant lessor and respondent lessee.

A resume of the situation is as follows:

On February 6, 1958 appellant (plaintiff) served a 'Three Days' Notice' to quit upon respondent tenant. On July 1, 1958, appellant filed her 'Complaint for Unlawful Detainer' alleging three causes of action.

The first cause of action alleged that respondent committed waste and breached the covenant against waste as contained in the form of lease incorporated in the complaint as 'Exhibit A'; the second cause of action alleged a breach of a covenant to pay any increase in property taxes; and the third cause of action alleged a breach of the obligation to pay the agreed rent from August 1, 1953, the occasion when the lease was extended for an additional five-year period.

The material portions of said Exhibit 'A' which was dated July 31, 1948 (admitted into evidence as plaintiff's 'Exhibit 10' and hereafter referred to as 'Exhibit 10') are as follows:

1. The premises were a one-story dwelling house, and two-car garage building, together with the entire use of the grounds at 601 North Wilcox Avenue and 595 North Wilcox Avenue, Los Angeles, California. (Appellant was named as Lessor and Black-Foxe Military Institute was named Lessee.)

2. The term was for five years commencing August 1, 1948, and the lease could be extended for five additional years upon 30 days written notice by lessee.

3. The monthly rent was $333.34, with receipt of first and last months' rents acknowledged.

4. The pertinent covenants in handwriting were as follows:

a. 'Exterior of 601 N. Wilcox Ave. buildings to be re-decorated within 'each' 5 years from date at expense of lessee. (Note: the word 'each' was inserted but not initialled.) Same to apply to 595 N. Wilcox Avenue.

b. 'Interior of each building to be redecorated also within 5 years, 'best materials to be used." (Note: the words 'best materials to be used' are inserted and are initialled by both signatories.)

c. 'If taxes increase at end of first five years period lessee will pay the differential if lease is extended.

d. 'Any property tax increase to be paid by lessee.' (Note: this clause is intialled by both signatories.)

5. The pertinent portions in typewriting or printing provided that:

a. '* * * Lessee may cancel this lease at any time during the five years' period by paying rental accrued to said date, together with a bonus of one month's unearned rental.'

b. 'It is understood that the premises herein demised are to be used for school purposes and that in case such use of the property is prohibited by any municipal, state, or federal authority, this lease may be cancelled without penalty at the option of the Lessee.'

c. Lessee shall 'pay therefor unto the said Lessor, the monthly rent or sum of Three Hundred Thirty-Three 34/100 Dollars in lawful money of the United States, monthly in advance, * * *

d. '* * * Lessee will well and truly pay or cause to be paid monthly in advance, in lawful money, the said reserved rents when due or payable, and in manner hereinbefore stated; that in the event of the said monthly rent or any part thereof remaining unpaid for the space of three days after the same shall have become due or when due or payable, and in manner hereinbefore surrender and deliver up possession * * *

e. '* * * Lessee will carefully and economically occupy and use said House * * *, and forthwith repair all injury, and pay all damages in like lawful money, that may happen or accrue to the same or any part thereof, during the term of this lease; * * *

f. '* * * Lessee shall not make any repairs or alterations to the premises herein demised, without the written consent of said Lessor, and then only after said consent is granted. Said alterations and repairs to be made at the cost and expense of said Lessee, to become the property of the Lessor, at the termination of the lease. * * *

g. '* * * [A]t the expiration of the term of this lease or agreement, or other sooner determination thereof Lessee will peaceably and quietly surrender, yield and deliver up the entire possession * * * unto said Lessor * * * in as good state and condition (as the same are now in, ordinary wear and tear and damages by fire alone excepted.) * * * (Note: the words 'as' and 'as the same are now in, ordinary wear and tear and damages by fire alone excepted' have a line drawn through them. The line is not initialled.)

h. 'The Lessee agrees * * * to care for the lawn and garden.

i. '* * * Lessor shall 'Reserves store-room' have the privilege of storing certain articles in one space, such storage, however, shall not interfere with the use of the garage for automobile purposes.' (Note: the words 'Reserves store-room' are inserted but no initialled.)

The lease is signed by appellant and the Black-Foxe Military Institute (i. e., Miles Sanford).

The duplicate lease retained by Black-Foxe (Defendant's Exhibit 'A') differs from appellant's copy of the lease ¹ (Plaintiff's Exhibit '10') in the following respects:

1. Defendant's (Respondent's) Exhibit 'A' did not contain the word 'each' between the words 'within' and 'five years.' See 4. a., supra;

2. In Respondent's Exhibit 'A' the words 'as the same are now in, ordinary wear and tear and damages by fire alone excepted' are not stricken out. See 5. g., supra;

3. Respondent's Exhibit 'A' does not contain the words 'Reserves store-room.' See 5. l., supra.

The original answer filed on July 15, 1958, by respondent, and other defendants, later dismissed, admitted the execution of the above-described lease, but denied the commission of the acts alleged to be waste, denied any breach of covenant to pay increased taxes, and denied any obligation to pay rent over $300 per month, alleging that the rental had been reduced to $300 per month by letter dated June 22, 1950, between appellant and Black-Foxe Military Institute, and prayed that respondent retain possession up to and including July 31, 1958.

On January 13, 1959, it was stipulated between the parties and ordered by the court that an amended complaint be filed, and that all its allegations be deemed denied.

On the same day the Amended Complaint was filed, alleging six causes of action, and incorporating the above-described lease.

The first cause of action sounds in waste and breach of the covenant against waste. It is alleged that respondent, without appellant's written or oral consent, destroyed six silver-leaf poplar trees, two maple trees, one palm tree, a clump of banana trees, an acacia tree, and a rubber tree; that respondent planted eugenia trees; that respondent destroyed brick steps on the northerly side of the premises, destroyed a stucco fence on the northerly side, destroyed a portion of a cement walk with footprints embedded therein, and destroyed approximately sixteen iron or steel awning standards, and removed numerous valued tropical plants from the patio.

In the second cause of action it is alleged there was a breach of the covenant to pay increased taxes in that respondent failed to pay the increase over and above $370.80, the amount of property tax for the fiscal year 1947-1948.

In the third cause of action it is alleged that the rent was agreed to be reduced from $333.34 per month from June 22, 1950 to July 31, 1953, but that it was agreed that upon the extension of the lease the rent would return to $333.34 per month, and it was alleged that the Lessee refused to pay anything over $300 per month from the time of the extension.

In the fourth cause of action it was alleged that there was a service of the notice to quit and election to declare a forfeiture, and it was further alleged that the reasonable value of use of the premises from the time for the service of the notice to July 31, 1958 was $3,400.

In the fifth cause of action it was alleged that there was a breach of the covenants to redecorate, repair, and to surrender the premises 'in good state and condition.' The various breaches were set out with detailed particularity.

Finally, in the sixth cause of action it was alleged that there was a conversion of enumerated items of furniture left in the respondent's possession.

Pursuant to the pre-trial order, an amendment to the First Amended Complaint was filed and punitive damages were pleaded. These allegations were denied by respondent's answer.

Respondent has expressly adopted appellant's statement of 'The Pre-Trial Proceeding' set forth in Appellant's Opening Brief as follows:

'In their pre-trial statement (C.T. 64) the parties agreed that the above lease was entered into, except that respondent claimed there are differences from the lease actually executed and Exhibit 'A' to the complaint. (I. e. plaintiff's Exhibit '10'.) They agreed that respondent executed the lease and that Miles Sanford, who signed the lease, was at all times the agent of respondent, and was instructed to execute the lease, and that appellant relied on said instructions. It was also agreed that the lease had been extended, and that respondent expressly covenanted not to make any repairs or alterations to the premises without appellant's written consent, and to pay any increase in property taxes, and agreed that respondent paid $806.79 as increased taxes but refused to pay a demanded...