COHEN v. MYERS

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Court of Appeal, Fourth District, Division 2, California.

Hedi COHEN, Plaintiff and Respondent, v. Bettye MYERS, Defendant and Appellant.

No. E009320.

Decided: March 03, 1994

Michael Zitomer, Palm Springs, for plaintiff and respondent. Butterwick, Bright, & O'Laughlin, Inc., and John F. O'Laughlin, Riverside, for defendant and appellant.

OPINION

In this case, we hold that the doctrine of strict liability in tort does not apply to a landlord whose only rental property is her second home.   Because the trial court erroneously instructed the jury that the doctrine did apply, we shall reverse the judgment entered on the verdict in favor of plaintiff Hedi Cohen and against defendant Bettye Myers.

Plaintiff sustained serious injuries to her hand when it went through the untempered glass in a door of a home she was renting from defendant.   Plaintiff sued defendant on theories of premises liability and strict liability.   Over defendant's repeated objection, the case was submitted to the jury on the theory of strict liability.   After the jury awarded plaintiff $40,000, judgment was entered on the verdict and defendant appealed.

Defendant contends the trial court erred in instructing the jury on strict liability, because the doctrine applies to landlords only when they are “engaged in the business of leasing dwellings.”  (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116).   Here, the home which defendant was renting to plaintiff was her (defendant's) sole rental property.   In our view, the doctrine of strict liability prescribed by Becker does not apply to the case here.   Thus, the trial court erred in instructing the jury that the doctrine was applicable.   Because such instruction was clearly prejudicial, we shall reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and a friend bought a home in Palm Springs in 1970.   Defendant was 44 at the time.   They intended to use the home for vacations and possibly for their retirement.   A year or two later the friend deeded his interest in the home to defendant.   Defendant could not afford the payments on the home, and so she decided to utilize it as a rental property.

In June 1986, after defendant had been renting out the home for about 15 years, she rented it to plaintiff and plaintiff's friend, Cindy Detaj.   Plaintiff, a 28–year–old real estate salesperson, had seen an advertisement for the home in the local newspaper.   Plaintiff and Detaj asked defendant for a lease.   Although defendant did not normally use a lease, she gave them one.1  Defendant, who was by then about 60, “really wanted a couple where the gentleman could do the work that needed doing, like some of the eaves.”   Plaintiff and Detaj agreed to do all the necessary repairs, and, in exchange for such agreement, defendant deducted $70 per month from their rent.

Three months after plaintiff and Detaj moved into the home, plaintiff went into the living room one evening to close the windows.   The wind blew one of the French doors open and plaintiff put up her right hand to stop the door from hitting her in the face.   Her hand went through the glass in the door.   Plaintiff was “covered in blood from head to toe, and ․ sp[ur]ting blood straight up in the air.”   She cut one of the major nerves to the hand and several tendons to the hand and wrist, and a minor nerve to the left hand.   At the time of trial four years later, she continued to have numbness and limited movement in the right hand.

Thereafter, plaintiff filed a Judicial Council form complaint against defendant alleging premises liability and strict liability.   In the strict liability count, plaintiff alleged defendant “owned rental property and rented said property to plaintiff, which rental property was in a dangerous and defective condition due to the absence of safety glass and an improperly functioning door lock.”   Defendant answered the complaint.

Then, the matter proceeded to a jury trial.   At the outset of trial, apparently in response to a written motion by defendant, which is not in the record, the court ruled the theory of strict liability in Becker, ante, to be controlling, despite the fact that the landlord in Becker owned 36 rental “units” and defendant here rented her second home.   In making such ruling, the court reasoned that “the Appellate authorities in California have not addressed that issue,” and, “I do not draw a distinction between someone who owns one rental unit and one who owns many.”   The court concluded:  “At the time Defendant entered this particular unit into the rental structure, she became a landlord under Becker․ and thereafter subject to strict liability in the event an incident such as this occurred.”

Later in the trial, defendant asked the court to reconsider its ruling on strict liability.   Defendant's request was based on Vaerst v. Tanzman (1990) 222 Cal.App.3d 1535, 272 Cal.Rptr. 503, where the court held Becker did not apply to a landlord who had rented his own home while he was transferred out-of-state, because “his act of leasing the family residence constituted an isolated transaction to which strict tort liability is inapplicable both as a matter of law and legal policy.”  (Id. at p. 1540, 272 Cal.Rptr. 503, emphasis added.)

The trial court refused to change its ruling, reasoning that the facts in the case here were closer to the facts in Becker than to those in Vaerst, because the alleged defect in Becker was a latent defect of broken glass (a shower door), and the alleged defect in Vaerst was a patent defect involving a stairway handrail.   The court concluded:  “This has been ․ a rental unit for 19 years.   Although this Defendant has only one unit that she rents, she rents it, and rents it for profit.   The day she put it on the rental property [market] and leased it out, she became an entrepreneur in this particular business.   And I cannot make a distinction between one who rents one unit or one who rents many units.”

During trial, plaintiff's first expert, a glazier, testified that:  (1) at the time of the accident, the glass in the French doors was non-safety or annealed glass;  (2) annealed glass breaks or shatters on impact and “your hands ․ go through it, and you ․ get cut”;  (3) safety or tempered glass “stays in[ ]tact so you won't get cut”;  (4) tempered glass was required in all new or replaced doors in 1965 (21 years before the accident), and (5) tempered glass has a design or letter in the corner “that tells you that it's safety.”

Plaintiff's second expert, a safety engineer, testified that:  (1) annealed glass is more likely to break than tempered glass;  (2) when annealed glass breaks it breaks into jagged shards;  (3) when tempered glass breaks it breaks into little cubes, not shards;  (4) there would have been no risk to plaintiff if the French door had had tempered glass;  (5) it was “particularly important” for the French door to have tempered glass because it was worn in parts and could swing open relatively easily, and (6) there was no way for a lay person to know whether a piece of glass was annealed or tempered.

Defendant testified that she did not know what kind of glass was in the French doors when she rented the home to plaintiff, and plaintiff testified she did not know the nature of the glass at the time of her injuries.

Defendant's only witnesses were two doctors who had examined plaintiff shortly after she was injured.   They testified plaintiff told them she injured her hand when she tried to stop the French door from blowing shut (instead of, as plaintiff testified, from blowing open).

The trial court gave the jury the following instructions on strict liability:

“A landlord engaged in the business of leasing dwellings is liable for injury legally caused by a latent defect on the premises, where the defect existed at the time the premises were leased to the tenant, provided that the injury resulted from the use of the premises that was reasonably foreseeable by the landlord.

“The premises are defective if they are not safe as an ordinary tenant would expect when used in an intended or reasonably foreseeable manner.   A latent defect means one that is hidden, not visible, not readily apparent to the view of an ordinary prudent person.”  (BAJI No. 8.00.1 (7th ed. 1990 pocket pt.), emphasis added.)

“The owner and lessor of dwellings is liable for injuries legally caused, too, by a latent defect in the dwelling [sic] which existed at the time the dwelling [sic] was rented, provided that the injury resulted from a use of the dwelling [sic] that was reasonably foreseeable by the Defendant.”  (BAJI No. 8.02 (7th ed. 1990 pocket pt.), emphasis added.)

About an hour after the jury began its deliberations, it asked the trial court three questions.   Two of the questions were about the location of the living room and the French doors, and the third question was whether unbroken annealed glass was a defect.   The court responded that this was a factual matter for the jury to decide, and that it would be happy to reread individual instructions.   The foreman asked the court to reread the instructions on latent defects, because “[l]atent defect[s] is what's got us hung up on this thing.”   The court reread the foregoing instructions, substituting (without explanation) singular “dwelling” for plural “dwellings” in BAJI No. 8.02 (“The owner and lessor of dwellings․”)

About one-half hour later, the jury asked:  “[if] a building was constructed prior to the change of code regarding safety features, would the lack of the safety features in the given building be considered a latent defect.” 2  The court responded that this was a factual determination, and that the jury had expert testimony from a glass expert and a safety engineer.

Five hours later (the jury began its deliberations at 9:20 a.m. and ended at 4 p.m.), the jury presented its special verdict.   Ten jurors voted there was a latent defect in the premises;  nine voted the defect rendered the premises less safe than an ordinary tenant would accept;  ten voted the defect was a legal cause of plaintiff's injury, and eleven voted there was no comparative fault on plaintiff's part.

As noted, the jury awarded plaintiff damages of $40,000.3  Thereafter, judgment was entered on the verdict.   This appeal followed.

DISCUSSION

The distinction between isolated transactions which do not give rise to strict liability and business transactions which do was articulated in Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722;  there a unanimous Supreme Court extended such liability to bailors and lessors of personal property.   Noting that “California has held in several cases that strict liability does not apply to isolated transactions” (id. at p. 254, 85 Cal.Rptr. 178, 466 P.2d 722), the court held that “for the doctrine of strict liability in tort to apply to a lessor of personalty, the lessor should be found to be in the business of leasing, in the same general sense as the seller of personalty is found to be in the business of manufacturing or retailing.”   (Id.)

The lessor in Price, Shell Oil Company, contended it was not in the business of leasing because there was no evidence it had leased more than one gasoline tank truck to the plaintiff's employer.   The Supreme Court disagreed, citing testimony that Shell leased other trucks exactly like the one in question, and that the trucks were built to a set of Shell's standard plans.   The court also noted that Shell's standard, two-page printed lease agreement with its name appearing in print throughout the document “warrants the inference that Shell [leased] a wide variety of refueler trucks.”  (Price v. Shell Oil Co., supra, 2 Cal.3d 245, 255, 85 Cal.Rptr. 178, 466 P.2d 722.)

Fifteen years after it decided Price, in Becker, ante, a divided Supreme Court extended the doctrine of strict liability to “a landlord engaged in the business of leasing dwellings,” on the ground that “landlords are part of the ‘overall producing and marketing enterprise’ that makes housing accommodations available to renters.”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116, quoting from Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168.)   The Becker court noted that it had refused, in Price, to apply strict liability to lessors and bailors who were involved in “isolated transactions such as the sale of a single lot” (Becker, at p. 459, 213 Cal.Rptr. 213, 698 P.2d 116 emphasis added), and observed that the landlord in its current case “owning numerous [36] units, is not engaged in isolated acts within the enterprise but plays a substantial role.”  (Id. at p. 464, 213 Cal.Rptr. 213, 698 P.2d 116, emphasis added.)

Such a landlord, the Becker court reasoned:  (1) makes an implied representation in the lease that the premises are fit for use as a dwelling;  (2) is in a much better position than the tenant “in the increasingly complex modern apartment buildings” to inspect for and repair latent defects, and (3) “by adjustment of price at the time he acquires the property, by rentals or by insurance is in a better position to bear the costs of injuries due to defects in the premises than the tenants.”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 464–465, 213 Cal.Rptr. 213, 698 P.2d 116.)

Justices Lucas and Mosk dissented in Becker, and predicted that, contrary to Price, “[a]ny landlord, even one renting the family home for a year, willnow be [an] insurer for defects.”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 479, 484, 213 Cal.Rptr. 213, 698 P.2d 116, fn. 3 (dis. opn. of Lucas, J.))

Despite, or perhaps because of, the dissenting opinion in Becker, five years after that case was decided, a divided court in Vaerst v. Tanzman, supra, 222 Cal.App.3d 1535, 272 Cal.Rptr. 503, refused to “extend” Becker to the “isolated” act of renting a family home on a temporary basis.   The Vaerst court reasoned that “a lessor ․ who rents his own house is not within the purview of Becker because he is not an entrepreneur placing his product in the chain of commerce.   Therefore, the policy justification for holding the landlord strictly liable for latent defects simply does not exist.”  (Id. at pp. 1540–1541, 272 Cal.Rptr. 503, emphasis added.) 4

 There is no meaningful distinction between Vaerst and the case here.   In both cases, the landlords rented an individual home.   Although the rental in Vaerst was the family home and the rental here is the second home, that distinction is irrelevant to the issue of whether the landlord was “engaged in the business of leasing dwellings” and therefore played a “substantial role” in the “ ‘overall producing and marketing enterprise.’ ”   (Becker v. IRM Corp., supra, 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116.)   Like Tanzman, who was the landlord in Vaerst, defendant did not buy her second home for the purpose of rental, and unlike Shell, the multi-truck lessor in Price, whose standardized lease warranted the inference that it leased a wide variety of gasoline trucks and therefore was in the business of leasing, defendant did not normally even use a lease.

 Moreover, the purpose of strict liability in tort, “to insure that the cost of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves” (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897), applies less strongly, if at all, to the landlord of a second home than to the landlord of a family home, because the latter is more likely than the former to have selected and installed the defective product.   As the dissent said in Vaerst:  “[u]nlike the owner in Becker, Tanzman built the stairway in question and thus stands more nearly in the position of a manufacturer of a defective product.”  (Vaerst v. Tanzman, supra, 222 Cal.App.3d 1535, 1546, 272 Cal.Rptr. 503 (dis. opn. of Poche, J.).)

In the case here, there was no evidence that defendant had installed the French doors, and, as noted, she testified she did not know what kind of glass was in them at the time of the rental.   Accordingly, Vaerst, where the landlord did install the allegedly defective stairway and the court nevertheless refused to apply the doctrine of strict liability, is even a stronger case, were the doctrine to be applied, than is the case here.

Plaintiff attempts to distinguish Vaerst on the ground that defendant rented her second home which was not her family residence “over and over again for many years to numerous tenants.”   However, whether defendant rented the home for one year or for many, or to one tenant or to many, is immaterial to the issue of whether, at the time of the rental to plaintiff, defendant was a landlord “engaged in the business of leasing dwellings.”   Such a landlord, according to Becker, ante:  (1) makes representations in leases as to the condition of the premises;  (2) is in a much better position than the tenant to inspect for and repair latent defects, and (3) when the property is acquired, anticipates and provides for the costs of injuries due to its defects.   However, defendant testified:  (1) she did not normally use a lease;  (2) she wanted tenants who could do their own repairs and plaintiff and her co-tenant agreed to do so in return for a reduction in rent, and (3) she did not buy the home for the purpose of renting.   This testimony clearly showed that defendant was not engaged in the business of leasing when she rented her second home to plaintiff.

Plaintiff argues, nevertheless, “[i]n terms of the lessor's involvement in the placing of rental units into the stream of commerce, there is little difference in impact between renting one unit for fifteen years and renting fifteen units for one year.”   This is a complete non sequitur.   Indeed, the appropriate comparison, in any one year, is between fifteen landlords renting one individual home and one landlord renting fifteen.

 Turning to the relevant language in Becker:  “A landlord ․ owning numerous units, is not engaged in isolated acts within the [overall producing and marketing] enterprise but plays a substantial role.”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116.)   In other words, even though all landlords are part of the enterprise, only those who play a “substantial role” are subject to strict liability.

Under plaintiff's example, a landlord who rents an individual home, for one year or fifteen, does not play a substantial role in the enterprise;  a landlord who rents fifteen homes does.   Indeed, as we have noted, the term of the rental is irrelevant to the Becker analysis.   The relevant factor is the act of renting.   A landlord who rents an individual home has engaged in one, or possibly more, acts of rental in the fifteen-year period.   To argue that such act or acts are not “isolated” because they have taken place over a 15-year period is as illogical as arguing that a landlord who rents a home for $5,000 a month plays a more substantial role in the enterprise than a landlord who rents a home for $1,000 a month.

The foregoing analysis shows why a landlord who rents only an individual home cannot be “engaged in the business of leasing dwellings ” (emphasis added), i.e., more than one home.   This is because language reflects reality;  what cannot be said cannot be done.   We cannot say that a landlord rents numerous “dwelling,” because a landlord cannot rent numerous “dwelling.”   Similarly, we cannot say, pursuant to Becker, that a landlord is in the business of renting a “dwelling,” because, in terms of Becker 's analysis, a landlord cannot be in the business of renting a “dwelling.”   Stated otherwise, the lease here was clearly an “isolated” act of renting.  (Vaerst v. Tanzman, supra, 222 Cal.App.3d 1535, 1540, 272 Cal.Rptr. 503.)

The dissent states that “․ as a matter of common sense it would be difficult to deny that someone who continuously rents a single dwelling for 15 to 17 years is not ‘in the business' of renting her dwelling.”  (dis. opn., p. 118, emphasis in original.)   However, the dissent later states that “․ the term of the rental is not in itself determinative of the issue whether a landlord is, in fact, engaged in the business of leasing (i.e., if a landlord has indeed entered the business of leasing the landlord should be strictly liable in the first year as well as the fifteenth).”  (dis. opn., p. 121.)

In other words, as set forth in the dissent, a landlord can be in the business of leasing before he or she engages in the activity which “establishes” the business of leasing.  (“Defendant's conduct of continuously maintaining the unit on the rental market for 15 years ․ demonstrably establishes ․ that defendant was in fact engaged in the business of leasing.”)  (dis. opn., p. 118, emphasis added.)

 However, as we have been at pains to point out, the length of time a landlord has rented the dwelling (defendant here was not renting a “unit,” like the landlord in Becker who was in the business of renting 36 “units,” she was renting a home, like the landlord in Vaerst who was not in the business of renting a single home) is irrelevant to a determination of whether the landlord was in the business of leasing at the time of the rental in question.   Moreover, by repeatedly emphasizing that defendant here rented the home from 15 to 17 years, the dissent has represented that defendant was in the business of leasing the home a year before she purchased it.

As Division One of this district stated in Oliver v. Superior Court (1989) 211 Cal.App.3d 86, 259 Cal.Rptr. 160, where it held strict liability did not apply to the builder of two, single-family homes:  “A home purchase through an occasional construction and sale does not involve the buyer reliance attending sales based upon an advertised model.   Nor does it present a situation where the builder may protect himself from substantial loss by effectively spreading both the risk and actual costs of defective construction among a number of residences in a development.   Since the rationale underlying the application of strict liability does not apply to the occasional or isolated construction and sale of a residence, we are not inclined to expand the concept beyond its current, limited application to mass-produced homes.”   (Id. at p. 89, 259 Cal.Rptr. 160.)

The dissent attempts to distinguish Oliver from the case here on the ground, among others, that the Oliver court held that the defendant in its case “made no warranty about the product (construction),” while defendant here “did make an implied warranty of habitability in the unit she placed on the rental market.”  (dis. opn. p. 122, emphasis added.)

However, the Oliver court did not hold, or even state, that the defendant made no warranty about the product;  it implied that there was (like here) no express warranty because there was no “advertised model.”   Moreover, although defendant here made an implied warranty of habitability by placing her home on the market, as the dissent notes, “[i]n Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 378, 115 Cal.Rptr. 648, 525 P.2d 88, the court held that an implied warranty of quality applied to the sale of new construction” (dis. opn. p. 107), in other words, to the home in Oliver.

In our view, the reasoning in Oliver applies equally to the case here.   Defendant advertised her vacation home for rent in the local newspaper, and plaintiff and her friend agreed to do all the necessary repairs on the property in return for a reduction in rent.   Accordingly, to argue that the rationale underlying the application of strict liability to the landlord “engaged in the business of leasing dwellings” applies to the facts here is little less than specious.   Thus, the trial court erred in ruling that it did.   More particularly, the court's repeated and erroneous instructions on the issue were prejudicial.

DISPOSITION

The judgment is reversed.

I concur.   I agree with the reasons stated in the majority opinion for the determination that the landlord in the present case should not be subject to strict liability.   In my view the result reached here is the only result which is consistent with the Supreme Court decision in Becker v. IRM Corp. (1985) 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116, and is also consistent with the subsequent appellate court decision in Vaerst v. Tanzman (1990) 222 Cal.App.3d 1535, 272 Cal.Rptr. 503.

In Vaerst v. Tanzman, supra, the court concluded that “respondent, who leased his own family residence to the tenants on a temporary basis, was not ‘engaged in the business of distributing goods to the public’ as ‘an integral part of the overall producing and marketing enterprise.’  [Citations.]   Rather, his act of leasing the family residence constituted an isolated transaction to which strict tort liability is inapplicable both as a matter of law and legal policy.  (Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 254, 85 Cal.Rptr. 178, 466 P.2d 722․)   It has been repeatedly held that liability without fault applies only to mass producers or mass lessors who play more than a random or accidental role in the overall marketing enterprise.  [Citations.]   This fundamental principle has been reaffirmed not only by the Restatement of Torts, but also by Becker [v. IRM Corp., supra, 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116] itself․”  (Vaerst v. Tanzman, supra, 222 Cal.App.3d at p. 1540, 272 Cal.Rptr. 503, fn. omitted.)

Vaerst v. Tanzman, supra, established that the leasing of one residence constituted an isolated transaction for purposes of strict tort liability.   (Vaerst v. Tanzman, supra, 222 Cal.App.3d at p. 1540, 272 Cal.Rptr. 503.)   In order to distinguish Vaerst from the present case we would have to examine the intent of the lessor at the time the lease was entered into, and reexamine the transaction at some later time to determine whether the lease was in fact a long- or a short-term lease, and whether the lessor truly intended to live in, or perhaps retire to, the leased premises.   The question becomes not whether the landlord leased only one residence but why the landlord leased the residence.   Those distinctions leave the issue of liability turning on fluctuating and sometimes speculative questions of subjective intent rather on any external, quantifiable facts.   As is stated in the majority opinion, the decision we reach in this case is consistent with prior decisions regarding what constitutes an “isolated transaction” and is the appropriate resolution of the case.

The decision we reach today also recognizes that the imposition of strict liability in the present case would not serve what the Becker court characterized as “The paramount policy of the strict products liability rule,” that is, “the spreading throughout society of the cost of compensating otherwise defenseless victims of manufacturing defects.”  (Becker v. IRM Corp., supra, 38 Cal.3d at p. 466, 213 Cal.Rptr. 213, 698 P.2d 116.)   The lessor of one unit is not able to spread the cost of compensating the victim across numerous units but must attempt to recover such costs from that one unit.   Rather than spreading costs such redistribution amounts only to shifting costs from one party to another.   While in some cases that shifting may lead to a just result, it is equally likely to result in injustice and cannot be said to be warranted as a matter of public policy.

I conclude, with the majority opinion, that the trial court erred in instructing the jury that the doctrine of strict liability did apply, and I therefore join in the decision to reverse.

I dissent.   The majority has held that defendant and appellant Bettye Myers (defendant or landlord) cannot be held strictly liable in tort for injuries to her tenant caused by a latent defect of the premises, simply because she owned only one rental unit.   Despite the facts that landlord intentionally placed the house—which was not her primary residence—on the rental market, that she did so continuously for over 15 years, and that she derived income therefrom for the same period, the majority comes to the remarkable conclusion that landlord's rental of the house was an “isolated transaction,” and that she was not “engaged in the business of leasing dwellings.”   The majority's conclusion is, as I shall demonstrate, insupportable in logic or practical reality.

In my view, the reasoning of Becker v. IRM Corp. (1985) 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116, in which the Supreme Court held that a landlord may be strictly liable in tort for injury to a tenant caused by a latent defect in the property, equally compels the conclusion that the landlord here should be so liable.   Like the trial court below, “I do not draw a distinction between someone who owns one rental unit and one who owns many.”   So long as the landlord is “in the business of leasing” her house, the reasons outlined in Becker for applying strict liability to the landlord remain unaltered, whether the landlord owns one unit or many.

From the standpoint of the tenant also, I can discern no principled reason why the tenant of a landlord who owns one rental unit should receive less protection than the tenant of a landlord who owns many rental units.   Tenants as a practical matter often do not know whether their landlord owns one unit or many units;  it was not a matter of any significance in the rental market—until the majority's decision today.   Now tenants must investigate their landlord's property ownership status, or rent at their peril.

The history and policy underlying the strict liability doctrine support the imposition of strict liability in this case.   The trial court properly instructed on strict liability.   I would affirm.

FACTS

To place the case in a proper context, a brief recapitulation of some of the essential facts is helpful.

Defendant and a friend bought the Palm Springs house in 1970.   Defendant was then 44.   Defendant and her friend intended to use the house as a vacation home, and possibly for their retirement.   Within a year or two (approximately sometime in 1971), the friend deeded his interest in the house to defendant.   As the majority states, “Defendant could not afford the payments on the home, and so she decided to utilize it as a rental property.”  (maj. opn., at p. 98.   Emphasis added.)

Further, “In June 1986, after defendant had been renting out the home for about 15 years, she rented it to plaintiff and plaintiff's friend․   Plaintiff, a 28–year–old real estate salesperson, had seen an advertisement for the home in the local newspaper.”  (maj. opn. at pp. 97–98.   Emphasis added.)   The house and yard were apparently somewhat rundown.   The yard had not been cared for and the house needed painting.   In exchange for a reduction in the rent, plaintiff and her roommate agreed to do the painting and cleanup.   Defendant by this time was about 60 years of age.   Defendant testified that she “really wanted a couple where the gentleman could do the work that needed doing, like some of the eaves and they told me they could do all that.”

Plaintiff also asked defendant for a lease;  although defendant did not normally use a lease, she used one on this occasion.

About three months after plaintiff moved into the house, she was severely injured when her hand went through the untempered glass of one of the French doors.   Plaintiff's experts testified that plaintiff would not have been cut if there had been tempered glass in the French doors, and that a lay person could not tell just by looking at it whether glass was annealed or tempered.   Defendant testified she did not know what kind of glass was in the French doors when she rented the house to plaintiff, and plaintiff did not know the nature of the glass at the time of her injuries.

The trial court held that the theory of strict liability was applicable here, and instructed the jury on that theory.   The jury eventually returned a special verdict finding there was a latent defect in the premises, which rendered the premises less safe than an ordinary tenant would expect, and which latent defect was a legal cause of plaintiff's injuries.   The jury found plaintiff was not at fault, assigned 100 percent comparative fault to defendant landlord and none to plaintiff, and found plaintiff was damaged in the amount of $40,000.   The court accordingly awarded judgment for plaintiff and against landlord for $40,000, for plaintiff's admittedly severe injuries.

Defendant has appealed.   Defendant “contends the trial court erred in instructing the jury on strict liability, because the doctrine applies to landlords only when they are ‘engaged in the business of leasing dwellings.’  (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116.)”  (maj. opn., at p. 97.)   Because defendant had only one rental property, the majority concludes that this 15–year–plus rental was an “isolated transaction,” and that strict liability therefore does not apply.   I disagree with the majority's reasoning and conclusions, for the reasons I explain below.

DISCUSSION

I. Strict Liability Applies to a Landlord “In the Business of Leasing,” Even If the Landlord Owns Only One Rental UnitA. Foundations of Strict Liability

It is noteworthy to review the policy foundations of the cause of action for strict liability in tort, as stated by the Supreme Court in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897.   There, the Supreme Court announced the rule that “A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”  (Id. at p. 62, 27 Cal.Rptr. 697, 377 P.2d 897.)  “The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.”  (Id. at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897.)

In Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168, the court further made clear that retail dealers as well as manufacturers were strictly liable.  “Retailers like manufacturers are engaged in the business of distributing goods to the public.   They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products․   Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing relationship.”  (Id. at pp. 262–263, 37 Cal.Rptr. 896, 391 P.2d 168.   Emphasis added.)

Other cases also extended strict liability to, e.g., wholesale and retail distributors (Barth v. B.F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 71 Cal.Rptr. 306), lessors and bailors of personal property (McClaflin v. Bayshore Equipment Rental Co. (1969) 274 Cal.App.2d 446, 452, 79 Cal.Rptr. 337, approved by the Supreme Court in Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 253, 85 Cal.Rptr. 178, 466 P.2d 722), licensors of chattels [coin-operated washing machines](Garcia v. Halsett (1970) 3 Cal.App.3d 319, 325–326, 82 Cal.Rptr. 420), and homebuilders(Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226–227, 74 Cal.Rptr. 749).

The courts in California follow the “stream of commerce” approach to strict liability.   As a consequence, “ ‘strict liability in tort has been applied not only to manufacturers but to the various links in the commercial marketing chain’․  [Citation.]  [¶] As explained in the Restatement Second of Torts, the rule of strict liability ‘applies to any person engaged in the business of selling products for use or consumption.   It therefore applies to any manufacturer of such a product, to any wholesale or retail dealer or distributor, and to the operator of a restaurant.   It is not necessary that the seller be engaged solely in the business of selling such products․'  (Rest.2d Torts, § 402A, com. f.)” (Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, 187, 285 Cal.Rptr. 728.)

B. Strict Liability Applies to Commerce in Real Property

As noted, the doctrine of strict liability now clearly applies not only to manufacturers and retailers of consumer goods, but also in the real property context.

In Kriegler v. Eichler Homes, Inc., supra, 269 Cal.App.2d 224, 74 Cal.Rptr. 749, the builder of a home was held strictly liable to a successor purchaser for a faulty heating system.   The builder had built numerous homes (at least 4,000) with a similar heating system.   The court stated, “the reasoning behind the [strict liability] doctrine applies to any case of injury resulting from the risk-creating conduct of a seller in any stage of the production and distribution of goods.  [¶] We think, in terms of today's society, there are no meaningful distinctions between Eichler's mass production and sale of homes and the mass production and sale of automobiles and that the pertinent overriding policy considerations are the same․”  (Id. at p. 227, 74 Cal.Rptr. 749.)

Also, when a purchaser buys a development house from an advertised model, he relies on the skill of the developer and the implied representation of workmanlike construction and reasonable fitness for habitation.   The purchaser cannot usually protect himself by hiring experts, and typically cannot inspect or make any protective provision in the deed.  (Schipper v. Levitt & Sons, Inc. (1965) 44 N.J. 70, 207 A.2d 314, cited in Kriegler v. Eichler Homes, Inc., supra, 269 Cal.App.2d at pp. 227–228, 74 Cal.Rptr. 749.)

Another court held a developer strictly liable for improper filling and compacting of a residential lot.   The court discerned no difference between the liability of a builder for a defective heating system installed under a cement slab and the obligation of a manufacturer of a lot for defective subsurface conditions resulting from improper filling and grading.   (Avner v. Longridge Estates (1969) 272 Cal.App.2d 607, 615, 77 Cal.Rptr. 633.)

In the landlord-tenant context, landlords were held strictly liable for conditions of the leased residential premises.   In Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 101 Cal.Rptr. 473, the landlord was held strictly liable when a couch in a furnished apartment collapsed.   The Fakhoury court attempted to make a distinction between liability for defective furniture (personalty) and defective premises.  (Id. at pp. 62–63, 101 Cal.Rptr. 473.)   The court in Golden v. Conway (1976) 55 Cal.App.3d 948, 128 Cal.Rptr. 69, however, expressly rejected the purported distinction between defective furniture and defective fixtures, and concluded that “a lessor of real property who, as the landlord in this case, is engaged in the business of leasing apartments and appurtenant commercial premises, equips the premises with an appliance without knowing whether or not it is defective because of the manner in which it was manufactured or installed, and it proves to have defects which cause injury to persons or property when used in a normal manner, is strictly liable in tort.”  (Id., at pp. 961–962, 128 Cal.Rptr. 69.)

C. Becker—Landlord Strict Liability

In Becker v. IRM Corp., supra, 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116, the Supreme Court established the principle that a residential landlord may be strictly liable in tort for injury to a tenant caused by a latent defect in the property.   In Becker, the tenant of a 36–unit apartment building was injured when he slipped and fell against a shower door.   The shower door there, like the French door here, was made of untempered glass.   The California Supreme Court held that the landlord was strictly liable for the latent defect [defective shower door] on the rented premises.

1. Strict Liability Applies to All Those in the Producing and Marketing Chain.   Under the stream of commerce approach to strict liability, as established by Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 and Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168, the Becker court determined that such liability extends “to all those who are part of the ‘overall producing and marketing enterprise ․’ ”;   that is, the doctrine applies “not only to manufacturers but to the various links in the commercial marketing chain․”   (Becker v. IRM Corp., supra, 38 Cal.3d 454, 459, 213 Cal.Rptr. 213, 698 P.2d 116.)   Again, “[t]he purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.”  (Greenman v. Yuba Power Products, Inc.., supra, 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897.)   This is because those who reap the economic benefit from participating in the enterprise should bear the cost of injuries caused by defective items they place onto the market.  (See Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 262–263, 37 Cal.Rptr. 896, 391 P.2d 168;  Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897.)

2. Warranty and Strict Liability Doctrine Apply to Real Estate Businesses.   The Becker court went on to note that “application of [warranty doctrine and] strict liability in tort has not been limited to those engaged in commerce in personalty but has been applied where appropriate to those engaged in real estate businesses who impliedly represent the quality of their product.”   (Becker v. IRM Corp., supra, 38 Cal.3d 454, 460, 213 Cal.Rptr. 213, 698 P.2d 116.)

a. Modern Real Estate Transactions—The Demise of Caveat Emptor.   The extension of these doctrines to real estate businesses was based on significant changes in the reality of modern real estate transactions.   The traditional rule was caveat emptor—the buyer of real property assumed the risk as to quality unless there was an express warranty, fraud or misrepresentation.   Under traditional rules, the lease of a premises was treated like a conveyance of the premises for the period of the tenancy;  under the caveat emptor notion, the landlord had no common law obligation to make the premises habitable and no obligation (in the absence of an agreement) to make repairs.

Modern conditions have changed, however, as the court had explained in several previous cases.   In Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 378, 115 Cal.Rptr. 648, 525 P.2d 88, the court held that an implied warranty of quality applied to the sale of new construction.  “[T]he builder or seller of new construction—not unlike the manufacturer or merchandiser of personalty—makes implied representations, ordinarily indispensable to the sale, that the builder has used reasonable skill and judgment in constructing the building.   On the other hand, the purchaser does not usually possess the knowledge of the builder and is unable to fully examine a completed house and its components without disturbing the finished product.”  (Id. at p. 379, 115 Cal.Rptr. 648, 525 P.2d 88.)

b. Implied Warranty of Habitability.   In the landlord-tenant context, the court also noted great changes which rendered the caveat emptor theory no longer applicable.

In Green v. Superior Court (1974) 10 Cal.3d 616, 111 Cal.Rptr. 704, 517 P.2d 1168, the court had stated:  “These original common law precepts perhaps suited the agrarianism of the early Middle Ages ․;   at such time, the primary value of a lease lay in the land itself and whatever simple living structures may have been included in the leasehold were of secondary importance and were readily repairable by the typical ‘jack-of-all-trades' lessee farmer.”  (Id. at p. 622, 111 Cal.Rptr. 704, 517 P.2d 1168.)

But “the geographic and economic conditions that characterized the agrarian lessor-lessee transaction have been entirely transformed in the modern urban landlord-tenant relationship․  [I]n the Middle Ages and, indeed, until the urbanization of the industrial revolution, the land itself was by far the most important element of a lease transaction;  ․ In today's urban residential leases, however, land as such plays no comparable role.   The typical city dweller, who frequently leases an apartment several stories above the actual plot of land on which an apartment building rests, cannot realistically be viewed as acquiring an interest in land;  rather, he has contracted for a place to live.”  (Id. at p. 623, 111 Cal.Rptr. 704, 517 P.2d 1168.)   In addition, modern apartment buildings are difficult, if not impossible, for a tenant to inspect adequately;  they are complex, and difficult and expensive to repair;  repairs will often be beyond the means or abilities of tenants;  the mobility of the modern tenant makes significant investment in a particular property prohibitive;  and the scarcity of low-cost housing has left tenants with little bargaining power.

Because of the transformation of the realities of landlord-tenant and other commercial relationships, the court concluded that “modern conditions compel the recognition of a common law implied warranty of habitability in residential leases.”  (Id. at p. 629, 111 Cal.Rptr. 704, 517 P.2d 1168.)

3. Strict Liability Applies to Landlords Engaged in the Business of Leasing Dwellings.   Based on “the rationale of the foregoing cases, establishing the duties of a landlord and the doctrine of strict liability in tort,” (Becker v. IRM Corp., supra, 38 Cal.3d at p. 464, 213 Cal.Rptr. 213, 698 P.2d 116) the Supreme Court concluded that “a landlord engaged in the business of leasing dwellings is strictly liable in tort for injuries resulting from a latent defect in the premises when the defect existed at the time the premises were let to the tenant.   It is clear that landlords are part of the ‘overall producing and marketing enterprise’ that makes housing accommodations available to renters.  [Citations.]   A landlord, like defendant owning numerous units, is not engaged in isolated acts within the enterprise but plays a substantial role.”  (Ibid., fn. omitted.)

D. A One–Unit Landlord Can Be “In the Business of Leasing”

Defendant landlord here argues, and the majority takes the view, that she was not “engaged in the business of leasing dwellings ” (emphasis added) because she rented only one unit.

The argument places too much emphasis on incidental semantic expression, and fails to recognize that the policy reasons for imposing strict liability at all upon landlords remain true whether the landlord is engaged in the business of renting one unit or many units.

Although the Becker court did announce that “a landlord engaged in the business of leasing dwellings is strictly liable in tort” (Becker v. IRM Corp., supra, 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116, emphasis added), the use of the plural word “dwellings” does not appear to have been intended to have substantive significance (i.e., to exclude the possibility that “a landlord engaged in the business of leasing one dwelling” could be strictly liable).   Rather, because the landlord in Becker owned a multiple-unit complex, the court had no occasion to discuss, much less decide, the question of the liability of a landlord of a single unit.   Cases do not decide issues that are not presented.  (Leaming v. Municipal Court (1974) 12 Cal.3d 813, 815, 117 Cal.Rptr. 657, 528 P.2d 745;  Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 851, 139 Cal.Rptr. 888.)   In the circumstances before the Becker court, it simply would never have occurred to the court to use the singular “dwelling.”   The appropriate substantive emphasis of the court's holding is that “a landlord engaged in the business of leasing dwellings is strictly liable in tort.”   The Becker dissenters explicitly pointed out that the decision could apply equally to the rental of a single unit.  (Becker v. IRM Corp, supra, 38 Cal.3d 454, 479, 483–484, 213 Cal.Rptr. 213, 698 P.2d 116 (dis. opn. of Lucas, J.).)

Manifestly, a landlord can be “engaged in the business of leasing” even one rental unit.   And the reasons given by the Becker court for imposing strict liability on landlords exist even if the landlord rents only one unit.

First, strict liability applies “to all those who are part of the ‘overall producing and marketing enterprise․’ ”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 459, 213 Cal.Rptr. 213, 698 P.2d 116.)   It is clear that “Landlords are an integral part of the enterprise of producing and marketing rental housing.”  (Id. at p. 466, 213 Cal.Rptr. 213, 698 P.2d 116.)   This is so whether the landlord has one unit or many.   Single-unit landlords make a substantial contribution to the overall marketing enterprise.   Indeed, it is conceivable that in some rental markets, participation by single-unit landlords may comprise the bulk of the market for rental housing.

Moreover, “It is the defendant's participatory connection, for his personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliance upon the product ․ which calls for imposition of strict liability.”  (Tauber–Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268, 276, 161 Cal.Rptr. 789.)   Even though defendant landlord here had only one rental property, she participated continuously for over 15 years, presumably for personal profit or other benefit.

Other reasons for imposing liability on landlords, as articulated in Becker, include the tenant's reliance on the implied warranty of fitness of the dwelling as a habitation, the landlord's greater ability to inspect and to bear the expense of repair, and the fact that the landlord—by adjusting the price at time of purchase, by rentals or by insurance—is in a better position than the tenant to bear the costs of injuries due to defects in the premises.   These reasons remain true whether the landlord owns only one unit or owns many units.

The warranty of habitability is implied in all residential rentals and does not depend on how many rentals the landlord owns.   Repairs to any dwelling unit will often be outside the reach of abilities or finances of tenants, tenants may be unable to adequately inspect for defects, and the scarcity of adequate low-cost housing has still left tenants with little bargaining power, regardless of whether the unit the tenant rents is the only unit the landlord owns, or is one of many.

Thus, the landlord of even a single unit, if she is “engaged in the business of leasing” that unit, is strictly liable in tort for injuries resulting from a latent defect in the premises;  all the reasons supporting imposition of strict liability on landlords exist whether a particular landlord owns only one unit or owns many.

Defendant landlord's contention here—that she “was not engaged in the business of leasing dwellings,” merely because she happens to own only one instead of many units—defies reason.   Landlord had continuously maintained a housing unit on the rental market for between 15 and 17 years.   Presumably she received personal financial benefit in the form of income from that rental, if not additional advantages accorded to a business enterprise, such as depreciation, tax deductions for expenses related to the property, and so on.   Landlord actively participated in the market enterprise, affirmatively soliciting tenants by advertising in the local newspaper.  (Cf. Tauber–Arons Auctioneers Co., Inc. v. Superior Court, supra, 101 Cal.App.3d 268, 275–276, 161 Cal.Rptr. 789.)   Landlord had an “organized and continuing operation.”  (See Price v. Shell Oil Co., supra, 2 Cal.3d 245, 254–255, 85 Cal.Rptr. 178, 466 P.2d 722.)   She, like many other owners of single units, was “an integral part of the overall producing and marketing enterprise”(Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168) for residential rental housing.

E. Landlord's Rental for 15 Years Was Not an “Isolated Transaction”

Strict liability applies to those who are in the “stream of commerce” of producing and marketing goods—or housing—that turns out to be defective and causes injury.   All the “links in the commercial marketing chain,” whether manufacturers, retailers, distributors, lessors, and so on, may be held strictly liable.  “As explained in the Restatement Second of Torts, the rule of strict liability ‘applies to any person engaged in the business of selling products for use or consumption.   It therefore applies to any manufacturer of such a product, to any wholesale or retail dealer or distributor, and to the operator of a restaurant.   It is not necessary that the seller be engaged solely in the business of selling such products․  [¶] The rule does not, however, apply to the occasional seller of food or other such products who is not engaged in that activity as a part of his business․'  (Rest.2d Torts, § 402A, com. f.)

“While our Supreme Court has diverged from the Restatement Second of Torts as to some aspects of strict liability, it has expressed agreement ․ that strict liability does not apply to isolated transactions, but rather to sellers ‘found to be in the business of manufacturing or retailing.’  (Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 254, 85 Cal.Rptr. 178, 466 P.2d 722.)”  Ortiz v. HPM Corp., supra, 234 Cal.App.3d 178, 187, 285 Cal.Rptr. 728.)

In Becker, the court held that strict liability extends “to all those who are part of the ‘overall producing and marketing enterprise ․’ ” including “not only ․ manufacturers but [also] the various links in the commercial marketing chain ․,” but noted that “strict liability does not apply to isolated transactions such as the sale of a single lot.”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 459, 213 Cal.Rptr. 213, 698 P.2d 116.)

Defendant landlord seizes upon these and other statements in various cases, and argues that, because she had only one rental unit, she engaged only in an “isolated transaction.”   The contention is patently absurd.   She has continuously maintained a rental unit on the market for 15 to 17 years.   She continuously received financial benefits from her participation in the residential rental market for the same period.   She actively participated in the marketing enterprise, affirmatively soliciting business by advertising in the newspaper.

What is an “isolated transaction”?  “Isolated transactions” appear to include one-time sales of equipment or goods which are not connected to the regular business of the seller, or secondhand sales of goods that are not remanufactured or warranted in any way.

In Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 640, 105 Cal.Rptr. 890, the manufacturer of name-brand pens used a plastic injection molding machine in its business of making ballpoint pens.   It later sold the machine secondhand.   It was held not strictly liable, as it was not “a conduit for the production or distribution of [the machine manufacturer's] presses.   Paper Mate was no more than a one-time ‘occasional seller’ who does not become subject to strict liability․”  (Ibid.   Criticized on another point in Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 641–642, 147 Cal.Rptr. 486, 581 P.2d 197.)

In Tauber–Arons Auctioneers Co. v. Superior Court, supra, 101 Cal.App.3d 268, 161 Cal.Rptr. 789, the court held that a secondhand dealer of goods (an auctioneer) who did not “remanufacture” the goods in any way would not be strictly liable for defects because, although the secondhand dealer was in the “auctioneering” business, as to any particular lot of goods it had no more than a “ ‘random and accidental role.’ ”  (Id. at p. 277, 161 Cal.Rptr. 789.)   The court drew the distinction between conduct that would call for imposition of liability and that which would not thusly:  “[U]nder the stream-of-commerce approach to strict liability no precise legal relationship to the member of the enterprise causing the defect to be manufactured or to the member most closely connected with the customer is required before the courts will impose strict liability.   It is the defendant's participatory connection, for personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliance upon the product ․ which calls for imposition of strict liability.”  (Id. at pp. 275–276, 161 Cal.Rptr. 789, emphasis added.)   One who “ ‘․ play[s] more than a random and accidental role in the overall marketing enterprise of the product ․’ ” would be held strictly liable, as would a distributor who was “engaged in a continuous distribution activity,” or a member of the enterprise who was “ ‘engaged in an organized and continuing operation,’ ” as opposed to “ ‘an isolated or occasional transaction’.”  (Id. at pp. 276–277, 161 Cal.Rptr. 789.)

Both Balido v. Improved Machinery, Inc., supra, 29 Cal.App.3d 633, 105 Cal.Rptr. 890 and Tauber–Arons Auctioneers Co. v. Superior Court, supra, 101 Cal.App.3d 268, 161 Cal.Rptr. 789, are to be contrasted with other cases in which a party was held strictly liable.

In Price v. Shell Oil Co., supra, 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722, Shell had argued that it should not be strictly liable for injury caused by its gasoline truck that it had rented to the plaintiff's employer, because it was not “in the business” of leasing gasoline trucks.   The court properly rejected the argument, because in fact evidence in the record indicated that Shell had “engaged in more than a single lease transaction.”  (Id. at p. 254, 85 Cal.Rptr. 178, 466 P.2d 722, emphasis added.)   Indeed, the evidence showed Shell “was engaged in an organized and continuing operation.   It also showed that trucks were leased to [other] lessees.  [¶] Finally, the lease agreement itself warrants the inference that Shell was engaged in the business of leasing gasoline tank trucks and that the lease now before us was not an isolated or occasional transaction․   Significantly, the name ‘Shell Oil Company’ or ‘Shell’ appears in print throughout the document.”  (Id. at pp. 254–255, 85 Cal.Rptr. 178, 466 P.2d 722, emphasis added, fns. omitted.)

In Rawlings v. D.M. Oliver, Inc. (1979) 97 Cal.App.3d 890, 159 Cal.Rptr. 119, the manufacturer of a kelp drying machine argued it could not be held strictly liable because it had only built nine machines to a customer's “special order” specifications and instructions.   It argued that the machines were not, therefore, “mass produced.”   The court nevertheless held the manufacturer strictly liable:  “[Defendant] appears to have been engaged in manufacturing and selling products as part of its full time commercial activity.   The uniqueness of [the buyer's] order may not alter its responsibilities.”  (Id. at pp. 897–898, 159 Cal.Rptr. 119.)

Thus, “random and accidental” participation in an enterprise, an “occasional sale,” and an “isolated transaction” are to be contrasted with “organized and continuing” operations.

Although defendant owns only one rental unit, she is not in the same position as, e.g., an occasional seller of goods.   Sellers of secondhand goods and machinery are not, where they have not remanufactured the goods, strictly liable in tort.   In the stream of commerce between the manufacturer and the consumer, secondhand sales (i.e., resales) of used goods and machinery may be relatively uncommon and, once the goods are sold, the secondhand dealer has no further relationship to the property.   Landlords, on the other hand, do not fit the profile of an “occasional seller” of used goods.   The “sale” (i.e., rental) of “used” housing is not only common, it is the basis of the rental housing market.   And, even though landlords market “used” housing, their involvement does not end;  landlords have an ongoing relationship to the property following the rental, unlike sellers.   Further, also unlike dealers in used machinery, landlords make warranties—implied representations of habitability and safety—regarding what they are marketing.

In only one instance, in the landlord-tenant context, has the court indicated that a landlord was engaged in an “isolated transaction.”   In Vaerst v. Tanzman (1990) 222 Cal.App.3d 1535, 272 Cal.Rptr. 503, an airline pilot was forced by a job transfer to rent out his primary family residence for a period of time until he could return home.   A guest of the tenant was injured on an allegedly defective stairway.   The court held that the strict liability doctrine did not apply, both because the defect was assertedly patent rather than latent, and because the lease of one's own family residence on a temporary basis was not an entrepreneurial venture;  the lessor “was not ‘engaged in the business of distributing goods to the public’ as ‘an integral part of the overall producing and marketing enterprise.’  [Citations.]   Rather, his act of leasing the family residence constituted an isolated transaction to which strict tort liability is inapplicable․”  (Id. at p. 1540, 272 Cal.Rptr. 503.)

Defendant here also attempts to characterize herself, like the defendant in Vaerst, as an “involuntary” landlord.   She argues she was “a retiree[,] and landlord only by happenstance, [who] rented a single residence, initially acquired for personal use only, to [plaintiff].”

The analogy is inapt.   This case is easily distinguished from Vaerst, on a number of grounds.   The court in Vaerst based its decision in part on the conclusion that the defect at issue was patent rather than latent.   It is undisputed here that the defect (untempered glass) was latent and undetected until the accident.   The Vaerst court specifically characterized the lease there as temporary.   Defendant's continuous rental of the Palm Springs house for over 15 years cannot be considered temporary by any stretch of the imagination.   The lessor in Vaerst was forced by circumstances to rent his primary family residence.   The Palm Springs house here was never defendant's primary residence.   It was admittedly always a second home.   If circumstances rendered it infeasible for defendant to use the house as a vacation home, she, unlike the lessor in Vaerst, could have sold the house without jeopardizing her primary, permanent residence.   Instead, defendant here deliberately chose, when not compelled to do so, to enter her unit into the residential rental market, and she continued to do so.   Even assuming for the sake of the argument that defendant's initial entry into the rental market might perhaps be characterized as “accidental,” keeping the unit in the rental market for 15 to 17 years cannot.

The continuous rental of the house for many years was not an “isolated transaction;”  it was purposeful, organized and ongoing entrepreneurial activity.

Defendant points to the statement in Becker v. IRM Corp., supra, 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116, that “[a] landlord, like defendant owning numerous units, is not engaged in isolated acts within the enterprise but plays a substantial role.”  (Id. at p. 464, 213 Cal.Rptr. 213, 698 P.2d 116, emphasis added.)

The court was stating no more than the obvious.   The landlord in Becker owned a 36–unit apartment building.   Clearly, the landlord there was not engaged in “isolated acts.”   But that does not mean, as defendant appears to suggest, that only multi-unit landlords do not engage in “isolated acts.”  (Or that single-unit landlords, by definition, engage in isolated acts.)

Defendant argues that, because she only has one rental unit, she does not, unlike the multi-unit landlord in Becker, “play a substantial role” in the rental market.   To the contrary, renting a single unit on a continuous basis does make a substantial contribution to the residential rental market.   A large number of single units may indeed constitute the major portion of rentals available in a given market.   Each landlord who maintains a unit on the rental market contributes significantly to satisfying this market need.   Month after month, year after year, defendant's unit brought her income from the Palm Springs rental market.

The rule urged by defendant—that owners of a single unit should not be subject to strict liability—is completely arbitrary.   As the majority here itself acknowledges, nothing in Becker v. IRM Corp., supra, 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116 necessarily confines its effect to multiple residences.   Certainly the dissenters in Becker recognized the applicability of its reasoning to single-unit rentals.   Exonerating owners of a single unit from strict liability is contrary to tenant expectations.   It is contrary to the principle that those in business in a particular enterprise should be liable for damages caused by the enterprise, and that the cost of protection against the risks of the enterprise is a cost of doing business.   Defendant here was an active participant in the enterprise of marketing rental units;  she continuously rented the house for between 15 and 17 years.   She had more than an “accidental role” in entering her unit into the stream of commerce, and in maintaining it there on an ongoing and continuous basis.   Unlike the occasional seller of goods or equipment, who can legitimately be characterized as engaging in an “isolated transaction,” she maintained a continuing relationship to the property, and to the rental market.   She was unmistakably “in the business of leasing” her house.   The imposition of liability is further consonant with the fundamental principle, as stated in Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, of risk-spreading, because the landlord benefits from the enterprise, is able to pass the costs of protection along to the tenant, is able to treat the costs of protection as business expenses, and is able to insure against the risks.   The landlord is in a far better position to do so than the tenant.

For all the reasons stated above, I conclude that the mere fact that defendant owns only one rental unit is irrelevant to the issue whether strict liability should be imposed under Becker.   The critical issue is whether the landlord was a participant in the overall producing and marketing enterprise;  she clearly was under any view of the facts of this case.   Accordingly, in my view, the jury was properly instructed on the issue of strict liability, and the judgment should be affirmed.

II. The Majority Opinion Cannot Withstand Analysis

The majority holds that strict liability in tort cannot apply to a landlord who rents only one unit.   As I shall attempt to demonstrate, however, the majority's reasoning and analysis fail to support its conclusion.

A. Price v. Shell Oil Co.—What is an “Isolated Transaction” and the Proper Significance of Use of a Lease Form

The majority adverts first to the distinction between “isolated transactions which do not give rise to strict liability and business transactions which do” (maj. opn., at p. 100), by an examination of Price v. Shell Oil Co., supra, 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722.   The majority misanalyzes the case.

1. Background—The Price Decision.   In extending strict liability to bailors and lessors of personal property, the Price court noted that, strict liability does not apply to isolated transactions;  for strict liability to apply to a lessor of personal property, “the lessor should be found to be in the business of leasing, in the same general sense as the seller of personalty is found to be in the business of manufacturing or retailing.”  (Price v. Shell Oil Co., supra, 2 Cal.3d at p. 254, 85 Cal.Rptr. 178, 466 P.2d 722, emphasis added.)

The plaintiff in Price was injured by a gasoline/ladder truck leased by the defendant, Shell Oil Company, to his employer, Flying Tiger, and used to service airplanes.   Shell sought to avoid liability by arguing it was not “in the business of leasing,” because there was no evidence it had leased more than one gasoline truck to the plaintiff's employer.

The Supreme Court rejected the argument, finding that Shell was indeed “in the business” of leasing gasoline trucks.   Evidence in the record indicated that Shell had leased other trucks, exactly like the one in question, to other companies, and that the trucks were built to a set of Shell's specified plans.   Shell's use of a standardized, pre-printed lease agreement, with its name appearing in print throughout the document, also “warrant[ed] the inference that Shell [leased] a wide variety of refueler trucks.”  (Price v. Shell Oil Co., supra, 2 Cal.3d 245, 255, 85 Cal.Rptr. 178, 466 P.2d 722, emphasis added.)

2. Significance of the Lease Agreement.   The majority makes much of the fact that, in contrast to the defendant in Price, the landlord here did not ordinarily use a lease form, and did so onthis occasion only at plaintiff's request.  (See maj. opn. at pp. 100–101.)   The majority has missed the point.   Shell's use of a pre-printed lease form, using its own name, and the provision in Shell's lease forms of blanks for description of different specifications for gasoline trucks and ancillary equipment, was evidence giving rise to an inference that Shell in fact leased many trucks, and that it was therefore engaged in an organized and continuing operation, rather than a one-time isolated instance of equipment leasing.   Shell went to the trouble and expense of preparing pre-printed forms using its own name.   Shell also had enough of an investment in the operation to have trucks built to its own specifications.   These acts would be highly unlikely unless Shell were “in the business” of leasing the trucks.   Moreover, the blanks in the lease forms to accommodate variations in the equipment or type of truck to be provided, suggested that Shell in fact had many different trucks available for lease.

There is, however, nothing talismanic about the use or non-use of a lease form.   It was not the mere use of a lease form that proved Shell was “in the business of leasing;”  rather, the circumstances surrounding the form and its use were strong evidence of the fact.

Even if the majority's false premise were accepted—i.e., that use of a lease form equates with “being in the business” of leasing—the converse is not true—i.e., that absence of a pre-printed lease is proof that the person is not “in the business of leasing,” or that the transaction is an “isolated” one.   In the rental housing market, units are commonly rented on a month-to-month basis without a written lease.   Thus, even though defendant here did not usually use a lease form, that does not in logic support any inference that she was not engaged in an organized and continuing operation.   There was substantial evidence, particularly in light of defendant's admission that she rented the house continuously for over 15 years, that she was “in the business of leasing” her house, as opposed to an “isolated transaction.”   The bare absence of a practice of using leases, in an industry in which renting without leases is common, is of no moment.

The majority has thus misanalyzed Price v. Shell Oil Co., supra, 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722, and its significance with respect to what constitutes an “isolated transaction.”   It is not the use or absence of the lease form that matters, but whether the person or entity is carrying on a continuing operation which contributes to placing items of that kind into the stream of commerce.  (Cf. Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897 [manufacturer is strictly liable for articles placed on the market, knowing they are to be used without inspection for defects, and the articles prove to have a defect that causes injury].)

B. Becker v. IRM Corp.—Who is “Engaged in the Business of Leasing”?

The majority's analysis of Becker v. IRM Corp., supra, 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116, is equally flawed.

1. The Becker Decision.   As I have explained, ante, the Supreme Court concluded that a residential landlord, who happened to own a 36–unit apartment building, was strictly liable in tort for injury to a tenant caused by a latent defect in the property.   The Supreme Court based its decision on the foundational stream-of-commerce approach to strict liability, as well as changes in the relations of landlords and tenants in modern society.   The critical part of a residential rental nowadays is a contract for habitation, and not the conveyance of an estate in land.   Thus, tenants of modern residential rentals are in the same position as consumers of products generally.

Based on “the rationale of the ․ cases [i.e., imposing strict liability in tort for injuries caused by latent defects in consumer goods, extending strict liability to all parts of the producing and marketing chain, and implying a warranty of quality in newly built houses, or a warranty of habitability in rental housing], establishing the duties of a landlord and the doctrine of strict liability in tort,” (Becker v. IRM, supra, 38 Cal.3d at p. 464, 213 Cal.Rptr. 213, 698 P.2d 116) the Supreme Court concluded that “a landlord engaged in the business of leasing dwellings is strictly liable in tort for injuries resulting from a latent defect in the premises when the defect existed at the time the premises were let to the tenant.   It is clear that landlords are part of the ‘overall producing and marketing enterprise’ that makes housing accommodations available to renters.  [Citations.]   A landlord, like defendant owning numerous units, is not engaged in isolated acts within the enterprise but plays a substantial role.”  (Ibid., fn. omitted.)

The Supreme Court in Becker found that a landlord “engaged in the business of leasing dwellings” (Becker v. IRM Corp., supra, 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116), should be liable because, as the majority here summarize, the landlord “(1) makes an implied representation in the lease that the premises are fit for use as a dwelling;  (2) is in a much better position than the tenant ‘in the increasingly complex modern apartment buildings' to inspect for and repair latent defects, and (3) ‘by adjustment of price at the time he acquires the property, by rentals or by insurance is in a better position to bear the costs of injuries due to defects in the premises than the tenants.’  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 464–465, 213 Cal.Rptr. 213, 698 P.2d 116.)”  (maj. opn. at p. 100.)

2. The Majority Misanalyzes the Foundations of Becker.   The majority attempts to distinguish the instant case from Becker on the three grounds just outlined, but does so in an illogical manner.

The majority correctly identifies the issue as whether “defendant was a landlord ‘engaged in the business of leasing dwellings.’ ”  (maj. opn. at p. 101.)  “Such a landlord,” says the majority, reiterating the grounds for the holding, “(1) makes representations in leases as to the condition of the premises;  (2) is in a much better position than the tenant to inspect for and repair latent defects, and (3) when the property is acquired, anticipates and provides for the costs of injuries due to its defects.”  (maj. opn. at p. 101.)   The majority then “answers” these points by reference to defendant's testimony:

“However, defendant testified:  (1) she did not normally use a lease;  (2) she wanted tenants who could do their own repairs and plaintiff ․ agreed to do so in return for a reduction in rent [;]  and (3) she did not buy the home for the purpose of renting.”  (maj. opn. at p. 101, emphasis in original.)   The majority claims that “[t]his testimony clearly showed that defendant was not engaged in the business of leasing when she rented her second home to plaintiff.”  (maj. opn. at 101.)   As I explain below, however, defendant's testimony on these issues proves no such thing, and was in fact largely irrelevant to the question whether she was or was not “engaged in the business of leasing” her second house.   Moreover, the majority has committed several critical errors of logic, as a result of which its argument evaporates.

a. Representations of Habitability.   The majority first states that a landlord “engaged in the business of leasing dwellings” under Becker, “(1) makes representations in leases as to the condition of the premises.”  (maj. opn. at p. 101.)   The majority's answer, that “(1) [defendant] did not normally use a lease,” is a complete non sequitur.

The majority has focused on the wrong thing.  (See dis. opn. at pp. 113–114.)   It has now re-cast its description of this ground for holding landlords strictly liable in tort, exclusively emphasizing the making of representations “in leases,” as if that is the only way representations about the condition of premises are made.   The critical point made by the Becker court was, however, that the landlord makes implied representations that the premises are fit for use as a dwelling.  (Becker v. IRM Corp., supra 38 Cal.3d454, 464, 213 Cal.Rptr. 213, 698 P.2d 116.)   The implied representation or warranty of habitability is made whether or not a written lease is used.

The majority has made another fundamental logical error.   It should be carefully noted that the Becker court was describing reasons why a landlord “engaged in the business of leasing dwellings” should be strictly liable in tort for injuries to tenants from latent defects in the property.   These reasons do not, however, define who is a “landlord engaged in the business of leasing dwellings.”   That is, the majority here has mistaken the criteria for holding landlords liable as definitional characteristics;  e.g., that only landlords who “make representations in leases” can qualify as being “in the business” of leasing dwellings.   Manifestly, that is not and cannot be the case.

The majority's argument in no way explains why this reason for holding a landlord strictly liable in tort (making implied representations of habitability) is inapplicable here.

In any event, although the matter is beside the point in my estimation, the defendant here actually did use a lease—an issue wholly ignored by the majority under its own analysis.

b. Landlord's Greater Ability to Repair.   The majority then takes up the second criterion, that landlord is also “(2) ․ in a much better position than the tenant to inspect for and repair latent defects.”  (maj. opn. at p. 101.)   The majority answers this by pointing out that defendant “wanted tenants who could do their own repairs and plaintiff ․ agreed to do so in return for a reduction in rent.”  (maj. opn. at p. 101, emphasis in original.)

Although the majority has this time accurately reflected the purport of the Becker court's reason for holding landlords strictly liable, I believe the majority misconstrues both the extent and the effect of the agreement between the landlord and the tenants in this case.

Although a lessor and lessee may agree, as part of the consideration for the rental, that the lessee will undertake some (or all) of the repairs of untenantable conditions (Civ.Code, § 1942.1), the agreement plaintiff made here was actually rather limited in scope.   In return for a modest reduction in the rent ($70 per month), plaintiff and her roommate agreed to do simple maintenance tasks such as cleaning up the yard, painting, and so on.   Plaintiff testified she agreed to “keep it clean, take care of the maintenance, you know, there were, there had never been, I don't think, a gard[e]ner there,paint it, do what we could within our means.   I wasn't in construction.   I was just renting a house.”   Plaintiff's understanding encompassed matters that were cosmetic—such as painting, yard work and cleanup—as well as patent and obvious.   Plaintiff testified she did not agree to change anything major about the house.   Plaintiff construed her agreement to include repair of a pane of glass if it became broken, but that is again a patent and obvious task;  it is also a far cry from absolving the landlord for injuries from latent defects.   Generally, a waiver of the tenant's right to a warranty of habitability is void as against public policy (Civ.Code, § 1942.1).   In the absence of any showing that the lessee agreed to undertake (and to undertake the risk of) all untenantable conditions,1 the agreement to keep up the yard and do the painting should not be construed as a waiver of the implied warranty of habitability.

Defendant's version of the agreement was not inconsistent with the understanding that the tenants' agreement was limited to patent, obvious, and cosmetic conditions.   Defendant testified that she had “really wanted a couple where the gentleman could do the work that needed doing, like some of the eaves․”   While what defendant meant by this is not completely clear, the agreement probably encompassed general maintenance tasks such as cleaning out and maintaining the rain gutters;  it is extremely doubtful that the tenants agreed (for a mere $70 per month) to undertake major repairs to largely hidden structural roof members.

Whether the habitation rented is a unit in a large apartment building or whether it is a single-family dwelling, the facts remain that the tenant may be comparably unable to inspect adequately (the tenant would have no authorization, for example, to open walls, ceilings, and roofs to inspect rafters [“eaves”] ), that repairs would be very difficult and expensive, that repairs other than minor cosmetic ones would be beyond the abilities and means of most tenants, that the mobility of modern tenants still makes significant investment in the property (owned by another) prohibitive, and that the scarcity of low-cost housing generally has left tenants with little bargaining power.  (See Green v. Superior Court, supra, 10 Cal.3d 616, 624–625, 111 Cal.Rptr. 704, 517 P.2d 1168;  see also Becker v. IRM Corp., supra, 38 Cal.3d 454, 464–465, 213 Cal.Rptr. 213, 698 P.2d 116.)   As between the landlord and the tenant, the landlord here was the one who had more extensive experience with the building (over 15 years), and landlord was the one who had the authority and the ability to inspect for and repair latent defects.

Nothing in the agreement here between the landlord and plaintiff to do modest cosmetic repairs diminishes the landlord's greater ability to inspect for and repair latent defects in the subject property.

c. Ability to Bear Costs of Repairs and Injuries.   The majority suggests that, under Becker, the landlord “(3) when the property is acquired, anticipates and provides for the costs of injuries due to its defects” (maj. opn. at p. 101), but replies that landlord here “(3) ․ did not buy the home for the purpose of renting.”  (maj. opn. at p. 101.)

This time, not only has the majority again answered the point raised with a non sequitur, it has also, in re-describing this criterion, significantly omitted critical parts of the description of the criterion.   The Becker court indicated that, among the reasons for extending the doctrine of strict liability to residential landlords, was that the landlord was in a better position than tenants to cope with the increased costs of injuries caused by latent defects to the property.   The landlord was able to do so in several ways:  “It is also apparent that the landlord by adjustment of price at the time he acquires the property, by rentals or by insurance is in a better position to bear the costs of injuries due to defects in the premises than the tenants.”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 465, 213 Cal.Rptr. 213, 698 P.2d 116, emphasis added.)

The majority accurately reproduces this reasoning at page 100, but at page 101, all reference to the landlord's ability to charge rent and to insure mysteriously disappears.   Instead, the majority focuses exclusively on the landlord's adjustment of price at the time of purchase, and argues that this landlord had no opportunity to do so because she did not originally purchase the property as a rental.

The Becker court stated, on the issue of the landlord's better ability to bear the costs of injuries from latent defects, that “the cost of purchasing rental housing is obviously based on the anticipated risks and rewards of the purchase, and thus it may be expected that along with numerous other factors the price of used rental housing will depend in part on the quality of the building and reflect the anticipated costs of protecting tenants, including repairs, replacement of defects and insurance.”

None of these purchase cost factors mentioned by the court in Becker applies exclusively to purchase of rental housing.   Rather, the cost of purchasing any housing will be based on anticipated risks and rewards of the purchase, and it is to be expected, with respect to an owner-occupier purchase no less than a rental purchase, that the price will reflect factors including the quality of the building, and the anticipated costs of having to make repairs, of having to replace defective portions, and of insuring against damage or injury.   The real estate market does not set one price for purchasers who intend to occupy the property and another for those who intend to purchase the property as a rental.

Moreover, as the Becker court also made clear, and which is ignored by the majority here, adjustment of the price at time of purchase is not the only opportunity or method by which the landlord is able to adjust for the costs of tenant protection.   In fact, it may not even be the most important method.   The landlord may purchase insurance, one of the most readily available risk-spreading devices.   The landlord is in a far better position to insure against risks than the tenant, and the landlord typically has greater information, access and control over the building, of whatever kind, than the tenant.   Indeed, it would be unthinkable for anyone to maintain a unit continuously on the rental market for 15 years without securing insurance for that enterprise.

“Further, the landlord after purchase may be able to adjust rents to reflect [the] costs [of tenant protection, such as repairs, replacement of defects, and insurance].   The landlord will also often be able to seek equitable indemnity for losses.”  (Becker v. IRM Corp., supra, 38 Cal.3d at p. 466, 213 Cal.Rptr. 213, 698 P.2d 116.)   In addition, the landlord is able to deduct these protection costs as business expenses in a way not available to a tenant.

Again, nothing in the majority's analysis negates the applicability or the reasoning of the Becker court that, as between landlords and tenants, the landlord is in the better position to adjust for the costs of injury caused by latent defects.

The majority asserts that defendant's testimony that she did not normally use a lease, that the tenants agreed to take care of some of the routine maintenance work, and that she did not buy the home for the purpose of renting (see typed maj. opn. at p. 12) “showed that defendant was not engaged in the business of leasing when she rented her second home to plaintiff.”   In both practical and legal terms, these items of defendant's testimony have, as I have demonstrated, little or nothing to do with the issue whether defendant was “engaged in the business of leasing” her house.   Defendant's conduct of continuously maintaining the unit on the rental market for 15 years for profit or other economic benefit is far more relevant, and demonstrably establishes, to the contrary, that defendant was in fact engaged in the business of leasing her Palm Springs house.

3. Landlord's Participation in the Overall Producing and Marketing Enterprise.   The majority also seizes on other statements in Becker in an attempt to show that the landlord here was not engaged in the business of renting her house.   In the course of its discussion, holding the landlord strictly liable in tort, the Supreme Court pointed out that “A landlord, like defendant owning numerous units, is not engaged in isolated acts within the enterprise but plays a substantial role.”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116, emphasis added.)   The majority construes this to mean, “In other words, even though all landlords are part of the enterprise, only those who play a ‘substantial role’ are subject to strict liability.”  (maj. opn. at p. 101, emphasis in original.)   The majority appears to argue that a landlord who rents only one unit can never play a “substantial role” in the overall market, and therefore that strict liability cannot be applied to the landlord of a single unit.

The majority's syllogism fails.   The major premise underlying the court's statement in Becker, and as originally set forth in Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, is that those who are a part of the overall producing and marketing enterprise are strictly liable.   There is an exception to the major premise, which is that those who engage in isolated acts are not strictly liable (perhaps because they are not part of the overall producing and marketing enterprise).   The Becker court, in the context of the case before it, stated two related minor premises;  viz., that a landlord who owns numerous units is not doing isolated acts (i.e., the exception to the major premise does not apply), and that a landlord who owns numerous units plays a substantial role in the overall producing and marketing enterprise (i.e., establishing conditions under which the major premise clearly does apply).   The conclusion to be drawn from these premises is that actually drawn by the Becker court:  THEREFORE, a landlord who owns numerous units or who plays a substantial role in the overall producing and marketing enterprise is strictly liable.   It does not follow, however, that only those who own numerous units or only those who play a “substantial role” in the overall producing and marketing enterprise (whatever “substantial role” may mean) are strictly liable.   Yet the majority's conclusion depends upon this fallacy.

The majority's further argument that a landlord who rents only one unit can never be “engaged in the business of leasing dwellings ” (emphasis added) because, linguistically, “what cannot be said cannot be done” (maj. opn. at p. 102) is puzzling.   The fact, if it be one, that “We cannot say that a landlord rents numerous ‘dwelling,’ ” (maj. opn. at p. 102) is of no consequence.  Becker does not say that a landlord must rent numerous units in order to be held strictly liable.   It states that “a landlord engaged in the business of leasing dwellings is strictly liable in tort.”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116, emphasis added.)   The landlord in Becker happened to own 36 units and was clearly not engaged in isolated acts;  it was in the rental business.   Naturally, the court there spoke of a landlord in the business of renting “dwellings.”   But its analysis does not hang on an “s.”

Contrary to the majority's assertion, we can say, semantically, practically and legally, that a landlord is “in the business of renting a ‘dwelling [.]’ ”  (MAJ. OPN. AT P. 102.)   Nothing in the English language precludes the statement;  as a matter of common sense it would be difficult to deny that someone who continuously rents a single dwelling for 15 to 17 years is not “in the business” of renting her dwelling (it would be interesting to see what defendant's income tax returns for the years in question show in terms of her claim not to be “in the business” of renting her house);  and nothing in Becker precludes the possibility (as the dissenters there well recognized).

The majority's analysis of Becker is thus incomplete, illogical and erroneous.   The majority has not demonstrated any logical reason or principle why Becker should not be applicable to defendant here.

C. Vaerst v. Tanzman—Rental of the Family Home

The majority, as does the defendant, places heavy reliance on Vaerst v. Tanzman, supra, 222 Cal.App.3d 1535, 272 Cal.Rptr. 503, in which the court held a lessor of a single unit—his own primary residence—was not strictly liable in tort for injury to his tenant's guest.   The majority declares “[t]here is no meaningful distinction between Vaerst and the case here.”  (maj. opn. at p. 101.)

I find the majority's inability to find any meaningful distinction between Vaerst and the instant case mystifying, because there are in fact several striking and significant distinctions between them.   First, the Vaerst court distinguished Becker on the ground that the defect in the shower door in that case (untempered glass) was a latent defect and the defect in the stairway in Vaerst was a patent defect.   The same latent defect found in Becker (untempered glass) exists here.

It is true, as the majority asserts, that the landlord in each case rented only a single unit.   The majority then states, “[a]lthough the rental in Vaerst was the family home and the rental here is the second home, that distinction is irrelevant to the issue of whether the landlord was ‘engaged in the business of leasing dwellings'․”  (maj. opn. at p. 101.)

Contrary to the majority's statement, it appears to me that the fact that the defendant in Vaerst was forced by a job transfer to temporarily rent out the family home was pivotal to the Vaerst court's conclusion.   The defendant pilot there became a lessor only because he was temporarily transferred.   He fully expected to return in the near future and, if he had not become a landlord, would otherwise have been forced to lose his primary abode.   Here, defendant's “involuntary” entry into the real estate market was not the result of a forced temporary relocation;  it was occasioned solely by economic factors—she could not, by herself, afford the luxury of a “vacation home.”   Her primary abode, however, was never threatened or even affected by her inability to afford a “vacation home.”   She could have solved her financial problems by selling the “vacation home;”  instead, she voluntarily chose to enter the real estate rental business.   She in fact never used the house as a vacation home, but rented it out for over 15 years.   The point is, because the lessor's sole rental in Vaerst was his permanent, primary home, he virtually had no choice but to become a landlord.   Precisely because the rental here was not defendant's primary home, she had a choice unavailable to the defendant in Vaerst.

The majority argues that the purpose of imposing strict liability in tort, “ ‘to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves' (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897), applies less strongly, if at all, to the landlord of a second home than to the landlord of a family home, because the latter is more likely than the former to have selected and installed the defective product.”  (maj. opn. at p. 101.)   The majority suggests, therefore, that because defendant did not install the French doors, and did not know what kind of glass was in them, she should not be strictly liable.

The majority's premise is questionable.   Who is to say that owners of “second homes,” as contrasted with owners of primary residences, do not select and install fixtures and appliances, or do not make repairs with materials they are responsible for having selected? 2  And, as between the landlord and the tenant, who has the responsibility for whatever materials are used in the house?   Obviously, the landlord-owner does.   Who has placed the product (rental unit) on the market?   The landlord-owner has.   In order “to insure that the cost of injuries resulting from defective products are borne by [those] that put such products on the market rather than by the injured persons who are powerless to protect themselves,” it is proper to imposestrict liability here.  (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897.) 3

The landlord of the apartment complex in Becker had not selected or installed the defective shower doors.   The landlord there argued, moreover, that purchasers of used (i.e., not new) buildings for rental should be exempted from strict liability.   The court rejected the argument, holding the landlord strictly liable despite the fact that the landlord did not build the building, had no business relationship with the builder, and no continuing business relationship with the builder.   The court pointed out that landlords, unlike sellers of used machinery, do make representations as to quality or fitness for purpose, and have an ongoing relationship with the property.   The court held “a continuing business relationship is not essential to imposition of strict liability.   The unavailability of the manufacturer is not a factor militating against liability of others engaged in the enterprise․   If anything, the unavailability of the manufacturer is a factor militating in favor of liability of persons engaged in the enterprise who can spread the cost of compensation.  [Citation.]   Just as the unavailability of the manufacturer does not militate against liability, the absence of a continuing business relationship between builder and landlord is not a factor warranting denial of strict liability of the landlord.”  (Becker v. IRM Corp., supra, 38 Cal.3d 454, 466, 213 Cal.Rptr. 213, 698 P.2d 116.)

Plaintiff here argues that this case is distinguishable from Vaerst “on the ground that defendant rented her second home which was not her family residence ‘over and over again for many years to numerous tenants.’ ”  (maj. opn. at p. 101.)   The majority answers this argument by stating, “whether defendant rented the home for one year or for many, or to one tenant or to many, is immaterial to the issue of whether, at the time of the rental to plaintiff, defendant was a landlord ‘engaged in the business of leasing dwellings.’ ”  (maj. opn. at p. 101, emphasis in original.)   While I agree with the majority that the term of the rental is not in itself determinative of the issue whether a landlord is, in fact, engaged in the business of leasing (i.e., if a landlord has indeed entered the business of leasing, the landlord should be strictly liable in the first year as well as the fifteenth), I do not find it irrelevant.   As in Price v. Shell Oil Co., supra, 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722, the concrete actions of the lessor are evidence of whether the lessor was engaged in the business of leasing.   In Price, the court determined that Shell's conduct of pre-printing leases including its own name, with the provision of blanks to accommodate variations in the kinds of trucks and equipment leased, warranted an inference that Shell was engaged in the business of leasing gasoline trucks.   It would not ordinarily have gone to the trouble of printing the leases unless it were engaged in the enterprise of leasing the equipment.

Here, similarly, the landlord's ascertainable and undenied conduct of continuously renting her unit, month after month, and year after year, dispels any notion that this was a one-time or isolated transaction, and in fact fully warrants the inference that landlord was engaged in the business of leasing her extra house.   I find the majority's argument that a landlord who rents a unit for 15 years has engaged in only one “act” of rental in the 15–year period (maj. opn. at p. 102) simply incredible.

The majority also claims that “[t]o argue that such act or acts [of rental] are not ‘isolated’ because they have taken place over a 15-year period is as illogical as arguing that a landlord who rents [one unit] for $5,000 a month plays a more substantial role in the enterprise than a landlord who rents [one unit] for $1,000 a month.”  (maj. opn. at p. 102.)   The majority is comparing apples and oranges.   Renting consists of nothing else than use of a particular space for a period of time;  blocks of time are all that can be bargained for as to rental of any particular space, and once the block of time has been bought and paid for (rented), it cannot, under normal circumstances, be rented by anyone else at the same time.   Thus, continuous re-rental for block-of-time upon block-of-time—which is the only thing that can be placed on the market with regard to any rental unit—over and over again for a 15–year period,4 does in logic have something to do with determining whether the “acts” of rental are “isolated” transactions, or whether they contribute substantially to the rental market.5

How much each particular unit rents for, however, is merely the price.   The price of an automobile does not determine whether its manufacturer is in the business of making cars.

On the one hand, in the majority's attempts to analogize the instant case to Vaerst, it has seized upon the mere mechanical facts—that only one house was rented, or that the landlord installed the allegedly defective stairway—and discounted or misperceived the crucial bases of the Vaerst court's opinion.   On the other hand, the majority appears unable to see, and does not deal with, differences between the two cases that to me are obvious, substantial and even fundamental.

D. Oliver v. Superior Court—Sale of a Single House Versus Continuous Marketing of a Rental Unit

Finally, the majority places reliance on Oliver v. Superior Court (1989) 211 Cal.App.3d 86, 259 Cal.Rptr. 160.   There, the court held that strict liability did not apply to a contractor who built only two single-family homes.  “A home purchase through an occasional construction and sale does not involve the buyer reliance attending sales based upon an advertised model.6  Nor does it present a situation where the builder may protect himself from substantial financial loss by effectively spreading both the risk and actual costs of defective construction among a number of residences in a development.”  (Id. at p. 89, 259 Cal.Rptr. 160, emphasis added.)   The court declined to hold the builder-seller strictly liable in tort.

The majority takes the position that Oliver applies equally to the case here.   Not so.   There was no evidence in Oliver that the builder-seller was in the business of building residential dwellings.   The sale of each of the two houses was an “occasional sale” or an “isolated transaction” to which strict liability does not apply.   The court held the builder-seller, like the occasional seller of secondhand goods (see Tauber–Arons Auctioneers Co., Inc. v. Superior Court, supra, 101 Cal.App.3d 268, 278, 161 Cal.Rptr. 789 et seq.), made no warranty about the product (construction).7  In addition, like the occasional seller of secondhand goods, once the dwellings were sold, the builder-seller had no furtherconnection with them.  (See Oliver v. Superior Court, supra, 211 Cal.App.3d 86, 89, 259 Cal.Rptr. 160.)

Here, by contrast, defendant did make an implied warranty of habitability in the unit she placed on the rental market, she had a continuing relationship to and responsibility for the property (and the matters covered by the implied warranty of habitability), and she, unlike the one-time seller of property, received a steady stream of income and other economic benefits from the property that enabled her to insure against the risks and costs of injury from defects.

Oliver involved a genuine “isolated transaction;”  this case does not.

CONCLUSION

The reasons for imposing strict liability on landlords who are “in the business of leasing dwellings” apply equally when a landlord—in the business of placing a unit on the rental market continuously for 15 to 17 years—has leased only one unit.   The landlord of a single unit, like the landlord of other units, makes an implied warranty of habitability and fitness for use as a dwelling.   Tenants rely on that warranty.   The landlord remains in the better position to inspect and make repairs.   The landlord also has several cost-spreading mechanisms available, including adjustment of rents and the ability to insure—an ability supported by the very rent that the tenant pays, as well as by other economic benefits provided to those “in the business” of leasing.   Thus, the reasons for imposing strict liability, as outlined in Becker v. IRM Corp., supra, 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116, apply equally strongly to the rental of a single unit as to the rental of many units.   Far from being “specious,” as the majority labels plaintiff's argument, it is compelling.

If anything, it is the majority's reasoning and analysis of the cases that may be called “specious.”   The majority ignores glaring differences between the instant case and the authorities upon which it relies, and fails to account for potent similarities between the instant case and Becker, supra, and its antecedents.

For the reasons I have explained, I would affirm.

FOOTNOTES

FOOTNOTE.  

1.   The record does not include a copy of the lease.

2.   This is the trial court's paraphrase of the question.   The question itself is not in the record.

3.   During closing argument, defense counsel said, “if it gets to that ․ the damages from this cases [are] somewhere around $50,000.”

4.   The Vaerst court also distinguished Becker on the ground that the defect in the shower door in that case was a latent defect and the defect in the stairway in its case was a patent defect.

1.   As noted, there is no copy of the lease agreement in the record, and it does not appear to have been offered into evidence below.   There is therefore no evidence that the agreement covered more than that testified to by the parties.

2.   The majority points out that the lessor-owner in Vaerst personally installed the defective stairway, but was not held strictly liable, whereas defendant here did not install the defective glass, and argues that this is therefore an even stronger case in which to decline to impose strict liability.The defectively installed stairway in Vaerst was held, however, to be a patent, not a latent, defect.The landlord in Becker likewise did not install the defective glass, but was nevertheless held liable.   The Supreme Court did not appear to regard the fact that the landlord did not personally install the defective equipment as significant.   Moreover, Vaerst is easily distinguishable on the ground that the lessor—having been forced by a temporary move to abandon his home—was not an entrepreneur placing his product in the chain of commerce.

3.   Although Greenman spoke of imposing liability on the “manufacturers” that place injurious products on the market, the law is clear that analogous liability is imposed on all those who participate actively in the marketing chain, and reap benefit from the enterprise.   Becker holds that landlords are such persons in the rental real estate market.

4.   In the absence of a lease, the term in residential rental housing is normally month-to-month.   Defendant rented her second house for 180 to 204 monthly periods in the 15 to 17 years she rented the house.

5.   This also answers the majority's criticism that, under this analysis, “a landlord can be in the business of leasing before he or she engages in the activity which ‘establishes' the business of leasing.”  (Typed maj. opn. at p. 14, emphasis in original.)   I do not suggest any such thing.   If a landlord embarks upon the entrepreneurial enterprise of leasing, then, quite naturally, the landlord is engaged in the business of leasing from the first.   Nevertheless, evidence that the landlord has rented a particular unit continuously for over 15 years is not irrelevant to the question whether the landlord is engaged in the business of leasing.   It is an a fortiori case.   That defendant here was engaged in a business enterprise was “demonstrably established” by evidentiary proof of the fact at trial.   I did not state, and I do not mean, that no business was “established” until after the 15 years had passed.

6.   That is, the contractor for a single house, unlike the builder of a tract house, does not make a warranty of quality based on the “model home.”  (See Kriegler v. Eichler Homes, Inc., supra, 269 Cal.App.2d 224, 228, 74 Cal.Rptr. 749.)

7.   The Oliver court stated, “A home purchase through an occasional construction and sale does not involve buyer reliance attending sales based upon an advertised model.”  (Oliver v. Superior Court, supra, 211 Cal.App.3d 86, 89, 259 Cal.Rptr. 160.)   The majority takes this to mean that the Oliver court “implied ․ there was ․ no express warranty because there was no ‘advertised model’ ” (but concedes that an implied warranty of quality should apply to the home in Oliver, pursuant to Pollard v. Saxe & Yolles Dev. Co., supra, 12 Cal.3d 374, 378, 115 Cal.Rptr. 648, 525 P.2d 88).  (maj. opn. at p. 103, emphasis in original.)The Oliver court made its statement in connection with an analysis of “the policies underlying Kriegler v. Eichler Homes, Inc., supra, 269 Cal.App.2d 224, 74 Cal.Rptr. 749․”  (Oliver v. Superior Court, supra, 211 Cal.App.3d 86, 89, 259 Cal.Rptr. 160.)   The court in Kriegler stated, however, “ ‘When a vendee buys a development house from an advertised model, ․ he clearly relies on the skill of the developer and on its implied representation that the home will be erected in a reasonably workmanlike manner and will be reasonably fit for habitation.   He has no architect or other professional adviser of his own, he has no real competency to inspect on his own, his actual examination is, in the nature of things, largely superficial, and his opportunity for obtaining meaningful protective changes in the conveyancing documents prepared by the builder vendor is negligible․’ ”  (Kriegler v. Eichler Homes, Inc., supra, 269 Cal.App.2d 224, 228, 74 Cal.Rptr. 749, emphasis added.)   Based upon the implied representations arising from the “advertised model,” the court deemed it appropriate to impose strict liability.And, as the Supreme Court pointed out in Pollard v. Saxe & Yolles Dev. Co., supra, 12 Cal.3d 374, 115 Cal.Rptr. 648, 525 P.2d 88, “the builder or seller of new construction ․ makes implied representations, ordinarily indispensable to the sale, that the builder has used reasonable skill and judgment [echoing the language of Kriegler, supra,] in constructing the building.   On the other hand, the purchaser does not usually possess the knowledge of the builder and is unable to fully examine a completed house and its components without disturbing the finished product.”  (Id. at p. 379, 115 Cal.Rptr. 648, 525 P.2d 88, emphasis added.)   The same is equally true of an “advertised model.”   In fact, the “advertised model” is something that the purchaser has no authority over, very limited access to, and even less opportunity or ability to inspect than his own completed house.Moreover, the Oliver opinion, a matter of only two pages, never mentions, acknowledges or takes account of Becker v. IRM Corp., supra, 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116.   Implied warranty was a key foundation in the imposition of strict liability in both Kriegler v. Eichler Homes, Inc., supra, 269 Cal.App.2d 224, 74 Cal.Rptr. 749 and Becker v. IRM Corp., supra, 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116.   If the Oliver court had truly acknowledged the existence of any warranty, then I believe the court would have had to make a different analysis with respect to the “policies underlying”, and to take account of, the relevant cases.   Unfortunately, I see nothing in Oliver that persuades me the court believed—because there was no reliance upon an advertised model—that any warranty, express or implied, was made.

McDANIEL, Associate Justice (Assigned).* FN* Retired Associate Justice of the Court of Appeal, Fourth District, senior judge status (Gov.Code § 75028.1), sitting under assignment by the Chairperson of the Judicial Council.

RAMIREZ, P.J., concurs.