Western Motors Servicing Corp. v. Land Development & Investment Co.

KAUFMAN, P. J.

Plaintiff Western Motors Servicing Corporation, as lessee, filed this action for declaratory relief claiming that defendant, Land Development Investment Company, lessor, had the duty of replacing certain allegedly worn-out parts of an elevator in the building rented by the plaintiff from the defendant. Plaintiff is a corporation and is the lessee of a building in the city and county of San Francisco, owned by the defendant, used by Western Export Packing Corporation, a California corporation, which is engaged in the export shipping business, wholly owned by plaintiff. The trial court, after overruling the defendant’s general and special demurrers, found that the lessee had standing to sue, had kept the elevator in repair up to the time of trial and that by a preponderance of the evidence the elevator was beyond repair, and concluded that it was the duty of the lessor to replace the necessary parts. This appeal taken by the defendant-lessor from the judgment in declaratory relief for plaintiff-lessee presents the following questions:

(1) Is there a sufficient controversy to entitle the plaintiff to declaratory relief pursuant to Code of Civil Procedure, section 1060?

(2) Is there sufficient evidence to sustain the finding of the trial court that the elevator could not be repaired?

(3) Is the trial court correct in its interpretation of the covenant in the lease as placing the burden on the lessor?

The facts are not in dispute. The relevant portions of the five year lease, signed on June 15, 1953, are as follows:

“Fifth: That the Lessee will, at his sole cost and expense, keep and maintain the said premises and every part thereof, including sidewalks fronting thereon, but excepting the roof and sidewalls (which the Lessor agrees to repair), but including glazing and the interior of the premises, in good and

[511]

sanitary order, condition and repair, hereby waiving all right to make repairs at the expense of the Lessor as provided in Section 1942 of the Civil Code of the State of California, and all rights provided for by Section 1941 of said Civil Code.

“Sixth : By entry hereunder, the Lessee acknowledges that the said premises, and every part thereof, and all window glass or other glazing, . . elevators, . . . and other fixtures . . . are at the date of such entry complete and in good order, condition and repair; and that on the last day of the said term or other sooner termination of this lease, the Lessee will peaceably and quietly leave, surrender and yield up to the Lessor all and singular the said premises, with the said appurtenances and fixtures, in good order, condition and repair, reasonable use and wear thereof and damage by act of God or by the elements excepted.