Green v. Del-Camp Investments, Inc.

California Court of Appeal Jun 29, 1961 No. Civ. 19175Published

Before: Draper

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Holding. The court held that the lessor was not liable for injuries resulting from the condition of the leased premises because the lease contained no covenant to repair, and the parol evidence rule barred the introduction of alleged oral promises to repair that contradicted the written agreement.

Issues

Whether a lessor is liable for injuries sustained on leased premises in the absence of an express covenant to repair.
Whether alleged oral promises to repair made by a lessor constitute enforceable agreements despite the parol evidence rule and lack of consideration.

Disposition. reversed

Quotations verified verbatim against the opinion

“Since the stairway was clearly a portion of the premises leased, the general rule is that the lessor is not liable in the absence of fraud, concealment, or an express covenant”

“A mere gratuitous promise without consideration imposes no tort liability on the landlord”

“When, as here, the claimed fraud consists of a false promise with respect to a matter covered by the agreement itself, the oral evidence would contradict the terms of the agreement, in direct contravention of the rule.”

DRAPER, J.

After defendant’s motion for summary judgment was granted, plaintiff moved for new trial. Her motion was granted, and defendant appeals.

Plaintiff seeks damages for injuries sustained when she fell down a stairway in a flat rented by her from defendant under a written lease. She asserts that the carpet on these stairs was badly worn, and that her fall was caused when her heel caught in one of its many holes as she started to descend. She took possession of the flat August 19 under a lease dated August 17. The lease was for one month, and provided that any holding over should be on the same terms. The accident occurred November 16. Her declaration in opposition to the motion for summary judgment asserts that she noticed many holes in the stair carpet when she entered the flat after signing the lease, that thereafter she “constantly complained” to defendant about the condition of the carpet, but that she was told “I could expect no help . . . since the property was

[481]

to be condemned and they had no intention of spending any money on same.” After the summary judgment, plaintiff changed attorneys and, apparently, her view of the facts. Her declaration supporting her motion for new trial alleged that, in response to her frequent complaints before the accident, defendant repeatedly promised to repair the carpet. It is undisputed that the stairway served only plaintiff’s flat, and that lessor reserved no right of control or of use thereof for itself or for other tenants.

It may seem semantically anomalous to speak of a “new trial” following summary judgment, which is a determination that there shall be no trial at all. In the light, however, of the rule that a motion for new trial lies after judgment on the pleadings

(Carney

Simmonds,

49 Cal.2d 84 [315 P.2d 305]), the procedure appears proper.

Since the stairway was clearly a portion of the premises leased, the general rule is that the lessor is not liable in the absence of fraud, concealment, or an express covenant

Green v. Del-Camp Investments, Inc.

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DRAPER, J.

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