Browning v. Aymard

AGEE, J.

Plaintiffs in this declaratory relief action appeal from a judgment entered upon the sustaining of defendants’ general demurrer to the amended complaint.

Defendants’ predecessors in interest had leased certain hotel property located on the upper floors of two adjoining buildings on Geary Street, San Francisco, to plaintiffs for a period of five years, commencing March 1, 1959. Defendants became the owners of the property on July 21, 1960.

A provision in the Housing Code of the City and County of San Francisco, which became effective on October 27, 1961, made it necessary to install a fire alarm system on the premises.

On September 19, 1962, the Department of Public Health of the City and County of San Francisco ordered defendants to complete certain work, including the installation of the fire alarm system.

On September 26, 1962, defendants served a notice on plaintiffs stating that unless this and other work was done within three days an unlawful detainer action would be commenced to recover possession of the premises. The plaintiffs filed this action on the next day.

In the amended complaint, plaintiffs allege that an actual controversy exists between the parties in that plaintiffs claim that the installation of the fire alarm system is a responsibility of the defendants, whereas defendants claim that such installation is the responsibility of the plaintiffs.

The lease contains the usual provision that the lessee shall keep and maintain the leased premises “in good and sanitary order, condition and repair.” There is no contention that this provision obligates plaintiffs to install the alarm system.

Defendants rely upon the following provision in the lease: “Sixth: That the lessee will, at his sole cost and expense, comply with all of the requirements of all Municipal, State and Federal authorities now in force, or which may hereafter be in force, pertaining to the said premises, occasioned by or affecting the use to which said premises have been, are being,

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or are to be pnt by the lessee, and will faithfully observe in the use of the premises all Municipal ordinances and State and Federal statutes now in force or which may hereafter be in force. ’ ’