Premises Liability

To strike the right balance between maintaining a safe premises and a landlord's resort to self-help when a tenant is to be evicted, the Court of Appeal, 2d District, held here that a landlord's duty to inspect leased property attaches upon entry of a judgment of possession in an unlawful detainer action and includes reasonable periodic inspections thereafter.

Defendant Center Trust Retail Properties Inc. owns a Los Angeles retail mall in which the Gumboz Creole Cajun restaurant was a tenant. In August 2001, the restaurant defaulted on its rent. On Dec. 3, 2001, the unlawful detainer court entered a partial judgment for possession by Center Trust, and 10 days later issued a writ of possession. On or about Dec. 27, 2001, the landlord was restored to full possession rights. However, the tenant restaurant continued to operate its business on the premises. In early January 2002, at a private party hosted in the restaurant, a patron slipped and fell on a wet spot caused by a leak in the roof. She broke her ankle and required three surgeries. While recovering from one of these surgical procedures, she also fell and broke a wrist. The patron sued both Gumboz and Center Trust for her injuries, but Gumboz was later dismissed from the suit.

Plaintiff argued at trial that Center Trust's duty of care included inspecting the restaurant, and that if it had, it would have discovered the water leak. Center Trust contended that its duty to exercise reasonable care consisted only of the usual landlord's duty: to make sure the property is safe at the beginning of the tenancy and to repair any hazards it learns about later. Defendant maintained it had no duty to inspect the restaurant or protect its tenant's customers. The trail court instructed the jury that a landlord must act reasonably to correct defects it knows or should know about but it failed to mention any duty to inspect. The jury, apparently finding that a duty to inspect existed, found Center Trust 19% responsible and ordered it to pay plaintiff its share of the damages. Center Trust appealed.

The appellate court concluded the jury correctly found Center Trust had a duty to the plaintiff, but found also that the trial court inadequately defined that duty's scope for the jury. The trial court should have instructed that a duty to inspect came into being once the judgment of possession in the unlawful detainer action was entered because, at that point, the normal balance of landlord's vs. tenant's duty to keep the leased premises free from hazards shifted: While the law generally discourages landlords from interfering in their tenants' quiet use of the property and thus excuses them from having to inspect such property, the landlord that has been accorded the right to re-enter the property takes with that right a renewed duty to inspect. Reasoned the court, 'Upon entry of judgment, a tenant's incentive to maintain a property dissipates because continued maintenance likely benefits only the landlord. To protect the public, the incentive to maintain the property must not be an orphan abandoned by a tenant and ignored by a shortly reoccupying landlord. Entry of judgment provides a workable bright line for the parties to know where responsibility lies, and aligns that responsibility with the parties' reordered incentives.'

Because, at the time of trial, no case law was available to instruct the court concerning the landlord's duty to inspect after entry of judgment, the parties did not have an opportunity to argue as to the extent of the damage to the premises after that date and whether the leak would have been discovered if inspections had been conducted. The court therefore remanded for retrial of the restaurant's and Center Trust's liability and directed the trial court to instruct the jury that Center Trust had a duty to inspect the restaurant upon entry of the judgment and at reasonable intervals thereafter.

Comment

In Stone v. Center Trust Retail Properties Inc., the court held that while a landlord usually has no duty to inspect, if the tenant is in default of their rental agreement and a landlord obtains a judgment for possession, it has a duty to inspect the premises and to continue to do so on an ongoing basis.

It is interesting to note that the court did not distinguish between a landlord who holds only a judgment of possession ' one who has won an unlawful detainer ' and a landlord who has successfully executed on that judgment by having the sheriff serve and enforce a writ of possession. This is so even though the case upon which the court relies in reaching its decision, Martinez v. Bank of America (2000) 82 Cal.App.4th 883, held that, 'until a judgment was obtained and satisfied in that unlawful detainer proceeding, the [property owner] did not have the ability to directly and promptly control conditions existing on the ' property occupied by the [tenant].' (Emphasis added) Martinez, at p. 893, 98 Cal.Rptr.2d 576.

The other strange fact about this case is that the restaurant continued to operate after the landlord was restored to possession of the premises. No explanation is made in the court's decision about that fact.

The result of the case is that landlords' duty to inspect a premises once they have regained possession of leased space has been amplified. Another, I am certain unintended, result of the opinion, is that it is unclear if the landlords' duty (and right) to inspect the premises runs from entry of the judgment of possession, as this case suggests, or from restoration of possession of the premises to the possession of the landlord, as the Martinez case suggests. If it is the former, it will be very difficult for landlords to enforce this right in the face of resistance from their soon-to-be-displaced tenants. Likewise, tenants facing eviction now also face immediate intrusion into their possession during their last days before physical eviction.

I fear that this case results in more confusion than clarity.

' James Coy Driscoll, San Francisco.

Landlord's Duty to Inspect Expanded

Stone v. Center Trust Retail Properties Inc.

53 Cal.Rptr.3d 668 (Cal.App. 2 Dist., 1/23/2007)

To strike the right balance between maintaining a safe premises and a landlord's resort to self-help when a tenant is to be evicted, the Court of Appeal, 2d District, held here that a landlord's duty to inspect leased property attaches upon entry of a judgment of possession in an unlawful detainer action and includes reasonable periodic inspections thereafter.

Defendant Center Trust Retail Properties Inc. owns a Los Angeles retail mall in which the Gumboz Creole Cajun restaurant was a tenant. In August 2001, the restaurant defaulted on its rent. On Dec. 3, 2001, the unlawful detainer court entered a partial judgment for possession by Center Trust, and 10 days later issued a writ of possession. On or about Dec. 27, 2001, the landlord was restored to full possession rights. However, the tenant restaurant continued to operate its business on the premises. In early January 2002, at a private party hosted in the restaurant, a patron slipped and fell on a wet spot caused by a leak in the roof. She broke her ankle and required three surgeries. While recovering from one of these surgical procedures, she also fell and broke a wrist. The patron sued both Gumboz and Center Trust for her injuries, but Gumboz was later dismissed from the suit.

Plaintiff argued at trial that Center Trust's duty of care included inspecting the restaurant, and that if it had, it would have discovered the water leak. Center Trust contended that its duty to exercise reasonable care consisted only of the usual landlord's duty: to make sure the property is safe at the beginning of the tenancy and to repair any hazards it learns about later. Defendant maintained it had no duty to inspect the restaurant or protect its tenant's customers. The trail court instructed the jury that a landlord must act reasonably to correct defects it knows or should know about but it failed to mention any duty to inspect. The jury, apparently finding that a duty to inspect existed, found Center Trust 19% responsible and ordered it to pay plaintiff its share of the damages. Center Trust appealed.

The appellate court concluded the jury correctly found Center Trust had a duty to the plaintiff, but found also that the trial court inadequately defined that duty's scope for the jury. The trial court should have instructed that a duty to inspect came into being once the judgment of possession in the unlawful detainer action was entered because, at that point, the normal balance of landlord's vs. tenant's duty to keep the leased premises free from hazards shifted: While the law generally discourages landlords from interfering in their tenants' quiet use of the property and thus excuses them from having to inspect such property, the landlord that has been accorded the right to re-enter the property takes with that right a renewed duty to inspect. Reasoned the court, 'Upon entry of judgment, a tenant's incentive to maintain a property dissipates because continued maintenance likely benefits only the landlord. To protect the public, the incentive to maintain the property must not be an orphan abandoned by a tenant and ignored by a shortly reoccupying landlord. Entry of judgment provides a workable bright line for the parties to know where responsibility lies, and aligns that responsibility with the parties' reordered incentives.'

Because, at the time of trial, no case law was available to instruct the court concerning the landlord's duty to inspect after entry of judgment, the parties did not have an opportunity to argue as to the extent of the damage to the premises after that date and whether the leak would have been discovered if inspections had been conducted. The court therefore remanded for retrial of the restaurant's and Center Trust's liability and directed the trial court to instruct the jury that Center Trust had a duty to inspect the restaurant upon entry of the judgment and at reasonable intervals thereafter.

Comment

In Stone v. Center Trust Retail Properties Inc., the court held that while a landlord usually has no duty to inspect, if the tenant is in default of their rental agreement and a landlord obtains a judgment for possession, it has a duty to inspect the premises and to continue to do so on an ongoing basis.

It is interesting to note that the court did not distinguish between a landlord who holds only a judgment of possession ' one who has won an unlawful detainer ' and a landlord who has successfully executed on that judgment by having the sheriff serve and enforce a writ of possession. This is so even though the case upon which the court relies in reaching its decision, Martinez v. Bank of America (2000) 82 Cal.App.4th 883, held that, 'until a judgment was obtained and satisfied in that unlawful detainer proceeding, the [property owner] did not have the ability to directly and promptly control conditions existing on the ' property occupied by the [tenant].' (Emphasis added) Martinez, at p. 893, 98 Cal.Rptr.2d 576.

The other strange fact about this case is that the restaurant continued to operate after the landlord was restored to possession of the premises. No explanation is made in the court's decision about that fact.

The result of the case is that landlords' duty to inspect a premises once they have regained possession of leased space has been amplified. Another, I am certain unintended, result of the opinion, is that it is unclear if the landlords' duty (and right) to inspect the premises runs from entry of the judgment of possession, as this case suggests, or from restoration of possession of the premises to the possession of the landlord, as the Martinez case suggests. If it is the former, it will be very difficult for landlords to enforce this right in the face of resistance from their soon-to-be-displaced tenants. Likewise, tenants facing eviction now also face immediate intrusion into their possession during their last days before physical eviction.

I fear that this case results in more confusion than clarity.

' James Coy Driscoll, San Francisco.