LEWIS OPERATING CORP. v. SUPERIOR COURT No. E052317.
200 Cal.App.4th 940 (2011)
LEWIS OPERATING CORPORATION et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; JOHN COSTAHAUDE, Real Party in Interest.
Court of Appeals of California, Fourth District, Division Two.
November 10, 2011.
LaMontagne & Terhar, Michael J. Terhar and Eric A. Amador for Petitioners.
No appearance for Respondent.
Law Offices of Brad Husen and Brad J. Husen for Real Party in Interest.
In this case, we are asked to determine whether a landlord who rents an apartment for residential use may enforce against the tenant an agreement to waive liability for the landlord's negligence. In general, as we will explain, the answer would clearly be "no." However, where the waiver in question relates to the landlord's operation of a tenant-only health club or exercise facility, we conclude that the waiver violates no statute or public policy. Accordingly, the waiver is enforceable and bars real party in interest's suit.
STATEMENT OF FACTS
The action is one for personal injuries suffered by plaintiff and real party in interest John Costahaude (Costahaude) while using a treadmill at a health club or exercise facility operated by defendants and petitioners Lewis Operating Corporation and Homecoming II at Eastvale, LLC. The facility was offered as an "amenity" related to real party in interest's tenancy.
The case comes to us after the trial court denied a motion for summary judgment made by petitioners. The motion was based upon provisions in the rental agreement which, in section 29 of the agreement, purported to govern the "Use of Health and Recreation Facilities." By executing the agreement, Costahaude agreed that he "assumes all risk of harm resulting from the use of
Responding to the motion, Costahaude asserted that the " `release and waiver' " was void as being "against public policy." He did not challenge or elaborate upon the basic facts and circumstances of the accident as presented by petitioners. The trial court agreed with Costahaude's legal arguments and denied petitioners' motion for summary judgment. Petitioners seek review by way of a petition for writ of mandate, as authorized by Code of Civil Procedure section 437c, subdivision (m)(1).
Thus, Civil Code section 1953 was essentially a codification of California common law, and its application in general to residential leases is beyond dispute. The issue here is whether public policy prohibits exculpatory clauses in a residential lease that pertain to what might be called noncore functions of the property.
As the above mentioned cases show, a landlord may be held liable in tort under usual rules of duty and negligence even if the dangerous condition does not exist in the tenant's dwelling and does not affect the statutorily required element of habitability or tenantability. We will assume, arguendo, that a landlord may not lawfully require the tenant to sign an exculpatory clause relating to injuries that might occur as a result of the tenant's use of the basic or essential common areas—i.e., a parking area, lawns, walkways or corridors. However, we do conclude that a landlord's duty to maintain amenities
We need not decide how far our decision reaches because, in this case, the provision of an onsite health club or exercise facility was clearly well outside the basic, heavily regulated offering of a residential dwelling. Furthermore, providing health club or exercise facility services has repeatedly been held not to invoke the "public policy" rule of Tunkl, and this strongly suggests that the same result should be obtained even if the operator of the health club or exercise facility is also the user's landlord.
The plaintiff in Tunkl was a hospital patient who had been required to sign an exculpatory clause in the hospital's favor before being admitted. The court held the contract to be contrary to public policy under the standards set forth in that opinion. (Tunkl, supra, 60 Cal.2d at pp. 97-98, 102, 104.) As we have noted, in Henrioulle, the Supreme Court went on to determine that the offering and obtaining of residential rental property similarly impacted a strong public interest so that exculpatory clauses in such contracts were invalid. (Henrioulle, supra, 20 Cal.3d at pp. 520-521.)
The petition for writ of mandate is granted. Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order denying petitioners' motion for summary judgment and to enter a new order granting said motion.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioners to recover their costs.
Hollenhorst, Acting P. J., concurred.
I respectfully dissent.
I would conclude based on the plain language of Civil Code section 1953, subdivision (a)(5) that the "release and waiver" provision of section 29 of the
"Under settled canons of statutory construction, in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We must look to the statute's words and give them `their usual and ordinary meaning.' [Citation.] `The statute's plain meaning controls the court's interpretation unless its words are ambiguous.' [Citations.]" (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387-388 [97 Cal.Rptr.3d 464, 212 P.3d 736].) " `In construing a statute, our first task is to look to the language of the statute itself. [Citation.] When the language is clear and there is no uncertainty as to the legislative intent, we look no further and simply enforce the statute according to its terms....' " (Phelps v. Stostad (1997) 16 Cal.4th 23, 32 [65 Cal.Rptr.2d 360, 939 P.2d 760].) By contrast, "[i]f the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy." (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 [21 Cal.Rptr.3d 676, 101 P.3d 563].)
The language of the statute is clear and there is no uncertainty concerning the Legislature's intent. It is evident from the plain language of the statute that the Legislature intended to declare and did declare as "void as contrary to public policy" any provision in a residential lease by which the lessee agrees to waive his right to have the landlord exercise a duty of care to prevent personal injury or property damage to the tenant, where the landlord's duty is imposed by law. (Civ. Code, § 1953, subd. (a)(5).) And, as the majority acknowledges, a landlord has a "duty imposed by law" to exercise reasonable care in managing its properties to prevent personal injuries or property damage to its tenants. (Civ. Code, § 1714; Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499 [229 Cal.Rptr. 456, 723 P.2d 573] [landlords have "a duty to exercise due care for the residents' safety in those areas under their control"].) Nothing in the statute supports the notion that the Legislature intended to exempt from the scope of the statute a landlord's duty to exercise reasonable care in maintaining "amenities," such as workout facilities or other "noncore functions," for its tenants.
The majority also identifies the issue as whether public policy prohibits exculpatory clauses for amenities or noncore functions in residential leases. This is not the issue. The issue is whether the statute prohibits such exculpatory clauses in residential leases. Public policy has nothing to do with the construction of a statute when the statute is clear on its face. (Coalition of Concerned Communities, Inc. v. City of Los Angeles, supra, 34 Cal.4th at p. 737 [the court looks to public policy only when the statute is subject to more than one reasonable interpretation].) And to the extent we are concerned with public policy, "aside from constitutional policy, the Legislature, and not the courts, is vested with the responsibility to declare the public policy of the state." (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 71-72 [78 Cal.Rptr.2d 16, 960 P.2d 1046] [administrative regulations may be the source of public policy where statutorily authorized regulations are " `tethered to' statutory provisions"].) Civil Code section 1953 plainly sets forth the public policy of this state, and that policy is that any clause in a residential lease which purports to relieve a landlord of its legal duty to exercise reasonable care to prevent personal injury or property damage to its tenants is void. It is not for the court to make its own exception based on its notion of what the policy should be. "When the Legislature has spoken, the court is not free to substitute its judgment as to the better policy." (City and County of San Francisco v. Sweet (1995) 12 Cal.4th 105, 121 [48 Cal.Rptr.2d 42, 906 P.2d 1196].) When the legislative intent is clear from the plain meaning of the words we are to follow it, " ` " `whatever [we] may [think] of the wisdom,
Furthermore, the majority, in discussing its interpretation of the legislative intent underlying the statute, states: "Civil Code section 1953 is designed to protect a tenant's basic, essential need for shelter." (Maj. opn., ante, at p. 948.) And at another point, the majority indicates, "[w]e conclude that where a landlord chooses to enhance its offering by providing an onsite health club or exercise facility that goes well beyond bare habitability" (maj. opn., ante, at p. 948), the landlord should be able to exculpate itself from liability by way of a release and waiver provision.
It is clear that the Legislature did not have this in mind when it enacted Civil Code section 1953 in 1975. As acknowledged in the enrolled bill memorandum dated August 19, 1975, already in force at time of the passage of Senate Bill No. 314 (1975-1976 Reg. Sess.), was Civil Code section 1942.1, which provides that any waiver of rights by a lessee dealing with habitability was void as a matter of public policy. Thus, if the Legislature merely intended to protect the "essential need for shelter," or "bare habitability" there would have been no need for Civil Code section 1953. Instead, it is evident the Legislature intended Civil Code section 1953 to have a more expansive applicability. As stated in the enrolled bill memorandum: "In view of the superior position of the landlord in most residential leases and rental agreements, statutes prohibiting . . . the waiver of the landlord's liability for negligence are long overdue." (Cal. Dept. of Real Estate, Enrolled Bill Rep. on Sen. Bill No. 314 (1975-1976 Reg. Sess.) Aug. 19, 1975, p. 4.) "The bill would help prevent the unknowing signing away of valuable rights by a tenant who may not fully understand a lease or rental agreement." (Cal. Dept. of Housing and Community Development, Enrolled Bill Rep. on Sen. Bill No. 314, supra, Aug. 19, 1975, p. 1.)
Lastly, the majority concludes that the use of an exercise facility is a nonessential matter of personal enjoyment and that a landlord, "where [he or she] chooses to enhance its offering by providing an onsite health club" (maj. opn., ante, at p. 948), should be able to avail itself of the same waiver or release of liability as a stand-alone health facility. While the offering of an onsite health club may at the present time be considered an "enhancement," its offering is nonetheless market driven, and is something that the landlord has chosen to provide as part of the leased premises. It is not separate and
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