DeMirjian v. Ideal Heating Corp.

WHITE, J. This is an appeal by plaintiffs from an adverse judgment in an action for unlawful detainer. Plaintiffs are the successors in interest of the original lessors, who leased certain real property in the city of Los Angeles to defendant corporation for a period of five years with an option to renew for an additional five years, which option the defendant exercised. On April 12, 1946, while the lease was in force under the renewal and the defendant was in possession, the premises were damaged by fire, whereupon the plaintiffs, purporting to act under the provisions of the lease, demanded that defendant surrender possession and made a tender of unearned rent. Possession being refused, this action was commenced.

Paragraph 16 of the lease reads in part as follows:

11 Should said premises, or the building of which they are a part, be wholly destroyed by fire or other calamity; or be so greatly damaged during the first five (5) years of this lease that they may not be put in their former state of repair for less than fifty per cent of the fair value thereof immediately prior to such fire or other calamity and within thirty working days thereafter; . . . then, upon tendering to Lessee all unearned rental heretofore paid Lessors by it, calculated at a daily rate based on the regular monthly rate, Lessors may forthwith terminate this lease, and re-enter and take possession of said premises and remove all persons therefrom. However, in the event of such partial destruction, other than during said last twelve months of the term hereof, and if such restoration may be made at less expense than said fifty per cent of the fair value thereof immediately prior to such fire or other calamity, and within said thirty working days, or should said premises or building be less than fifteen per cent damaged during the last [402]twelve months of said term, then Lessors shall with reasonable diligence effect such restoration and redeliver said premises to Lessee under the provisions hereof and during the time required for restoration a like proportion, to that portion of the premises damaged or destroyed, of rental to be paid by Lessee hereunder shall be rebated or abated to it. . . . It is agreed that unless the parties to this lease can and do agree forthwith upon the extent and amount of damages and the time required for repair and restoration, Lessors shall promptly designate a certified architect of the City of Los Angeles who shall determine the extent and amount of the damages and the time required for repair and restoration and whose determination shall be final and binding upon the parties to this lease; provided, always, however, that the architect so appointed must be responsible, experienced, and as regards both Lessors and Lessee, disinterested.”