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District Court of Appeal, Second District, Division 1, California.


Civ. 18556.

Decided: March 12, 1952

Ben Gould, Los Angeles, for appellants. Averill C. Pasarow, Los Angeles, for respondents.

The basic question at issue in this case is whether under the terms of the lease here involved it terminated ipso facto when the Board of Zoning Appeals sustained an order of the Zoning Administrator revoking a zoning variance permit which he had granted to the lessees subsequent to the execution of the lease.

The lessees originally entered into possession of the premises involved in 1944, under a lease executed during that year. The lease which is here involved was executed September 6, 1946, to run for a term of five years at a total rental for the term of $24,000 payable in monthly installments of $400.

About 15 days prior to the execution of the last named lease the plaintiff lessees were notified by the Zoning Administrator that they were required within 15 days to discontinue the use of the premises for ‘clay model making’ as the operation was not in accordance with the zoning ordinance applicable to the property located as it was in Zone C–2. Apparently the notice was not given because the ordinance prohibited the making of clay models, but because the dust created by their manufacture was not properly controlled so as not to annoy the neighborhood. Other uses to which the premises were then being put were not affected by the notice as such uses were permissible under the zoning ordinance. Before the expiration of the 15 days counsel for plaintiffs procured from the Administrator an additional fifteen-day extension to respond to the notice. As the lease here involved had not yet been executed, although prepared by lessors and tendered to lessees, the latter at the instance of their counsel sought and obtained from the lessors two amendments thereto by adding the language we have italicized in our quotations from the pertinent terms of the lease which we have set forth in the margin.1 The lease it will be observed makes no reference to clay model making, but merely authorizes the lessees to use the premises for ‘manufacturing’ and certain other uses.

Subsequent to the execution of the lease the lessees sought and obtained a temporary zone variance permit which enabled them despite the notice to continue to manufacture clay models on the premises; in short, permitting them to do the type of manufacturing upon the premises in which they had at all times been engaged. Later on this temporary variance permit was revoked by the Zoning Administrator because of the failure of the lessees to comply with certain conditions therein stated, among others, that of failing to properly control the emission of dust on the outside of the building and onto adjacent properties. On appeal his action was sustained by the Board of Zoning Appeals. Almost immediately thereafter the lessees vacated the premises and refused to be bound by the terms of the lease contending that the revocation of the variance permit ipso facto terminated the lease by virtue of the terms of the proviso of paragraph 8 of the lease.

At all times mentioned herein the zoning ordinances permitted manufacturing in the C–2 zone in which the property was located only if such manufacturing was done in a retail store, business or shop (1) where not more than 5 persons did the work of manufacturing (2) within a completely enclosed building (3) a majority of the products made upon the premises were sold at retail and (4) the operations were not objectionable due to odor, dust, smoke, noise, vibration or other causes.

It is at once apparent that the revocation of the variance permit was based, not on the theory that the manufacture by lessees of mannequins and other enumerated items out of clay was prohibited by the zoning ordinance, but that the revocation was based on the manner and method of the manufacturing processes which created dust which was permitted to escape from the premises onto adjoining premises. This was a breach of the conditions laid down in the permit which warranted its revocation. This finding, assuming it was correct, would be ground for a holding in a proper case for a decision that the lessees were likewise violating the ordinance. But no such issue was before the Zoning Administrator or decided by him and the same is true of the appeal before the Board of Zoning Appeals. There was then, and never has been, a decision of that point ‘by duly constituted authority’ which is a prerequisite to the operation of the proviso found in paragraph eight of the lease. Accordingly, the revocation did not terminate the lease.

In an endeavor to overcome the hurdle imposed by the terms of the lease the lessees offered, and over apt objection, were permitted to introduce evidence that the lessors knew prior to the execution of the lease the contents of the notice of August, 1946, sent by the Zoning Administrator to the lessees; that they knew that more than five persons were engaged in the manufacturing end of the business contrary to the applicable zoning ordinance; that the proviso in paragraph 8 was intended to be operative if the lessees could not conduct their business as they were then conducting it; and other testimony of the same general character. The evidence was inadmissible under the parol evidence rule as there was no ambiguity in the terms of the lease. Achen v. Pepsi-Cola Bottling Co., 105 Cal.App.2d 113, 233 P.2d 74. If the lessees contemplated that the proviso would be operative if they found themselves unable to conduct the type of business they were conducting in violation of the zoning ordinance, they should have so provided by apt language in the lease. This they failed to do.

As the trial court's findings in favor of the lessees are based solely upon evidence violative of the parol evidence rule they must be and are ignored.

The judgment of the lower court is reversed and the court is ordered to proceed to ascertain the amount that is due the cross-complainants and enter judgment accordingly.


1.  Paragraph one of the lease grants certain described premises, upon which store buildings were located, to be used by the lessees ‘for the purpose of conducting and carrying on the business of manufacturing, selling and repairing window display forms, figures, fixtures and mannequins, display backgrounds and for related purposes.’ The eighth paragraph of the lease, the proviso of which was drafted by counsel for lessees reads as follows: ‘Lessee further agrees to so conduct said business on said premises that the same shall not become a nuisance, and in accordance with all applicable regulations of city, municipal or other public authority; and shall maintain said premises at all times in reasonably good, clean and neat condition. Provided, however, that if the operation of the type of business specified in Clause 1 hereof is determined, by duly constituted authority, to be contrary to Ordinance No. 90,500 of the City of Los Angeles, or any provision of the Los Angeles Municipal Code relating to zoning, the lease shall be terminated and the lessee excused and released from his obligations thereunder.’

HANSON, Justice pro tem.

WHITE, P. J., and DRAPEAU, J., concur.