Quevedo v. Braga
Citation | 72 Cal.App.3d Supp. 1,140 Cal.Rptr. 143 |
Court | California Superior Court |
Decision Date | 01 July 1977 |
Parties | 72 Cal.App.3d Supp. 1 Robert QUEVEDO et al., Plaintiffs and Appellants, v. Emily D. BRAGA, Defendant and Respondent. Civ. A. 13901. Appellate Department, Superior Court, Los Angeles County, California |
Benjamin Aranda, III, Marina Del Rey, for plaintiffs and appellants.
Cummins, White & Breidenbach and James R. Robie, Los Angeles, for defendant and respondent.
The plaintiffs have appealed from an order of dismissal following an order of the trial court sustaining a demurrer to the complaint without leave to amend.
The plaintiffs alleged in their complaint for 'retroactive rent abatement' that on or about April 18, 1974, they leased a residence from the defendant by written agreement on a month-to-month basis for a rental payment of $160 per month. The complaint states that in leasing the premises the defendant impliedly warranted that the premises were habitable and fit for residential use and that the plaintiffs relied upon such warranty. Pursuant to the lease agreement plaintiffs took possession of the premises on or about April 22, 1974, and remained in occupancy until on or about March 31, 1975. The complaint further alleges that commencing 'at the time the lease was entered into and throughout the time plaintiffs occupied the apartment, defendant knowingly neglected and failed to maintain said premises in a habitable condition, to wit, said premises were infested with various vermin, including but not limited to cockroaches, and certain plumbing facilities were not in proper working condition, including but not limited to the bathroom facilities.'
The pleading alleges that the defendant knew of the existence of such conditions in violation of state and local housing codes and failed to remedy or repair them despite the plaintiffs' repeated requests. As a result of these conditions the premises were unsafe, unhealthy and substantially uninhabitable. It is further alleged that the failure and refusal of the defendant to repair the premises constituted a breach of the implied warranty of habitability. Because of the continued existence of these conditions plaintiffs were unable to remain in the premises. Plaintiffs moved out on March 31, 1975. Plaintiffs allegd that the condition of the premises reduced the fair rental value to 'eighty dollars ($80.00), if anything, a month.'
Based on these allegations, plaintiffs prayed for damages for the alleged over-payment of rent in the amount of $910. A second cause of action is set forth in the complaint which incorporates the foregoing allegation and prays for damages for discomfort and annoyance in the amount of $3,000.
The trial court sustained the demurrer to each cause of action and filed a memorandum setting forth its reasons. In essence, the trial court determined that a breach of the implied warranty of habitability may only be raised as a defense in an unlawful detainer action and cannot be relied upon to establish a cause of action against a landlord.
Appellants contend that a breach of implied warranty of habitability gives rise to an affirmative cause of action for damages including retroactive rent abatement. Respondent landlord argues that as a matter of public policy a tenant should be required to seek his remedy for a breach of implied warranty while he is a tenant.
In the case of Hinson v. Delis (1972), 26 Cal.App.3d 62, 102 Cal.Rptr. 661 the court held that a warrant of habitability is implied by law in residential leases. In Hinson the tenant withheld the payment of rent until the landlord finally heeded his complaints and repaired a number of defects in the premises. The landlord brought an unlawful detainer action to recover the amount of rental payments which were withheld. The tenant filed an action for declaratory relief to determine whether a tenant is obligated to pay full rent where the landlord has failed to comply with the housing codes. The trial court in Hinson held that although the evidence showed the presence of substantial defects in the premises a 'tenant had no legal or equitable right to unilaterally withhold rent' (26 Cal.App.3d at p. 66, 102 Cal.Rptr. at p. 663). The Court of Appeal held that the tenant, while not absolved from all liability for the payment of rent, was required to pay only the reasonable rental value of the premises for such time as the defective condition persisted (26 Cal.App.3d at p. 70, 102 Cal.Rptr. 661).
In Green v. Superior Court (1974), 10 Cal.3d 616, 111 Cal.Rptr. 704, 517 P.2d 1168, the California Supreme Court approved of the decision in the Hinson case and held that breach of the implied warranty of habitability could be raised as a defense in an unlawful detainer action.
There is no Published opinion of any California appellate court concerning the question of whether a tenant may bring an action for damages for rent paid while he was in possession of defective residential premises. 1 There is, however, case authority for the maintenance of a cause of action by a tenant for a breach of the implied warranty of habitability in other jurisdictions. In fact, the California Supreme Court refers us to some of these decisions in footnote 1 of the Green case, (10 Cal.3d at p. 619, 111 Cal.Rptr. 704, 517 P.2d 1168).
In Lemle v. Breeden (1969), 51 Hawaii 426, 462 P.2d 470, the Supreme Court affirmed a judgment awarding the plaintiff-tenant damages in an action brought to recover deposit and rent payment. The complaint sought recovery based on constructive eviction and breach of an implied warrant of habitability. The evidence showed that the tenant occupied the premises without knowledge that the premises were infested with rats. Upon discovery of the condition on the first evening on the day the tenant took possession, the landlord's rental agent was notified. The tenant and the landlord's agent were unsuccessful in their efforts to exterminate the rodents. On the third day after occupying the premises the tenant vacated the dwelling after notifying the agent of his intention to do so and demanded return of all the money previously paid.
The Hawaiian Supreme Court abandoned the common law principle that a lessee of land took possession subject to the doctrine of caveat emptor as to any condition which could have been discovered by inspection prior to occupancy. Instead, the court adopted the theory, borrowed from the law of sales of chattels, that in a lease of premises the landlord impliedly warrants suitability and fitness.
Other states which have applied the doctrine of implied warranty to actions brought by tenants for the recovery of rent include Wisconsin (Pines v. Perssion (1961) 14 Wis.2d 590, 111 N.W.2d 409); Massachusetts (McKenna v. Begin (1975) Mass.App., 325 N.E.2d 587); Iowa (Mease v. Fox (1972) Iowa, 200 N.W.2d 791); New Jersey (Berzito v. Gambino (1973) 63 N.J. 460, 308 A.2d 17); and New Hampshire (Kline v. Burns (1971) 111 N.H. 87, 276 A.2d 248).
Respondent has urged this court to limit the doctrine of implied warranty of habitability to actions brought by tenants while in possession or who assert this remedy as a defense to an unlawful detainer action. He argues that the assertion of such a cause of action by a tenant after a prolonged delay presents problems of proof. Problems of proof are present in any case filed two years after the operative facts have occurred. However, if a complaint states a cause of action arising within the applicable statute of limitations, demurrer is an inapplicable remedy.
The effect of our opinion in this matter is to recognize that the doctrine of implied warranty already applied by our higher courts to the contractual relationship created by the lease of a dwelling will support an independent cause of action for damages. The relevant requirements for pleading and proof of a cause of action for breach of implied warranty of fitness and merchantability should be applied to a rental agreement with appropriate modifications. (See Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 377--378, 115 Cal.Rptr. 648, 525 P.2d 88.) A cause of action for breach of an implied warranty of inhabitability should allege facts which show the following:
One. The existence of a materially defective condition affecting habitability. (See Hinson v. Delis, supra, 26 Cal.App.3d 62, 70, 102 Cal.Rptr. 661.) 2
Two. The defective condition was unknown to the tenant at the time of occupancy. (See Pollard v. Saxe & Yolles Dev. Co., supra, 12 Cal.3d 374, 379, 115 Cal.Rptr. 648, 525 P.2d 88.)
Three. The effect on habitability of the defective...
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