HENRIOULLE v. DREYER (1977)

Plaintiff, J. Henrioulle (hereafter tenant), appeals from a judgment notwithstanding the verdict and the order granting a new trial in favor of Dreyer, et al. (hereafter landlord), in an action for damages for personal injuries sustained on a common stairway. For the reasons set forth below, we have concluded that in view of newly enacted Civil Code section 1953, the judgment notwithstanding the verdict was properly granted; therefore, we need not reach the issues pertaining to the order granting a new trial.

On an appeal from a judgment notwithstanding the verdict, we must view the facts in the light most favorable to the judgment. The record here¹ indicates that at the time in issue, in Marin County there was a shortage of dwelling accommodations for persons of low income.² Accordingly, the tenant, like many other tenants of the landlord, was receiving public assistance in the form of a rent subsidy.

On April 3, 1974, the parties entered into a lease for apartment G at 125 Ross Street, San Rafael. After reading the written portions, the tenant signed the lease, a standard printed form, containing the following exculpatory clause: ‘INDEMNIFICATION: Owner shall not be liable for any damage or injury to Tenant, or any other person, or to any property, occurring on the premises, or any part thereof, or in common areas thereof, and Tenant agrees to hold Owner harmless from any claims for damages no matter how caused.’

On May 22, 1974, the tenant tripped over a rock on a common stairway and fractured his wrist; as a result, he was unable to seek work as a bookkeeper. At the time of the accident, the landlord was in violation of his common law and statutory duties to keep the common areas safe (Civ.Code, § 1668), and to replace a terminated on-site manager.³

As there is no question that leases in this state are to be construed as contracts (Green v. Superior Court, 10 Cal.3d 616, 624, 111 Cal.Rptr. 704, 517 P.2d 1168), the question before us is whether, as the tenant maintains, the instant exculpatory clause was void on grounds of public policy pursuant to Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441. The Tunkl criteria for a contract involving a sufficient ‘public interest’ so as to invalidate an exculpatory clause, include a transaction that exhibits some or all of the following characteristics. ‘It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a resulf of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

‘While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, the above circumstances pose a different situation. In this situation the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer. Since the service is one which each member of the public, presently or potentially, may find essential to him, he faces, despite his economic inability to do so, the prospect of a compulsory assumption of the risk of another's negligence. The public policy of this state has been, in substance, to posit the risk of negligence upon the actor; in instances in which this policy has been abandoned, it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer.’ (Tunkl, pp. 98–101, 32 Cal.Rptr. p. 37, 383 P.2d p. 445.)

The trial court, while recognizing that some of the Tunkl criteria, such as the inequality of bargaining power,⁴ had been met here, after reviewing Tunkl and ascertaining that no California case had invalidated an exculpatory clause in a lease, granted the judgment notwithstanding the verdict on that ground alone.

We are not, however, free to view and discuss the issues in the same framework as the trial court or the parties at that time, as the Legislature has determined the matter by the subsequent enactment of Civil Code section 1953, set forth below.⁵ (Stats.1975, ch. 302, § 1.) The statute was apparently not cited to the court during the proceedings below. Our review of the legislative history of the statute indicates that as originally introduced, the section did not contain subdivision (c) limiting its application ‘only to leases and rental agreements executed on or after January 1, 1976’ (S.B. 314, introduced Jan. 29, 1975, Senate Semifinal History, p. 131). Subdivision (c) was added by amendment on March 13, 1975. At the time of this amendment, the Legislature was well aware of both Tunkl and its 1970 findings as to the unavabilability of housing for persons and families of low income, cited in footnote 2 above, as well as the absence of any California cases either specifically validating or invalidating an exculpatory provision in a lease in a situation like the instant one. The Legislature no doubt was also aware of Green v. Superior Court, 10 Cal.3d 616, 111 Cal.Rptr. 704, 517 P.2d 1168, in which our Supreme Court held that the tenant's statutory remedy to make repairs and deduct the cost was not an exclusive remedy that precluded the recognition of a remedy based on the common law warranty of habitability. The landlord's common law duty to maintain common areas (Yazzolino v. Jones, 153 Cal.App.2d 626, 632, 315 P.2d 107) no doubt was also well known to the Legislature. In the absence of the specific modification fixing the effective date of leases to which section 1953 was to apply, we might have felt free to follow the reasoning of Tunkl and Green and the modern trend of voiding exculpatory clauses in residential leases on grounds of public policy where there is a housing shortage⁶ (see cases collected in 49 A.L.R.3d 327). As enacted, we do not think Civil Code section 1953 can be applied retroactively to the instant lease.

We can only conclude that in view of Civil Code section 1953, the judgment notwithstanding the verdict was properly granted; accordingly, we need not reach the other issues raised by the parties or those presented by the order granting the new trial.

Affirmed.

FOOTNOTES

1.  We compliment the parties on use of partial transcripts that provide us with all of the essential facts at a minimal cost to all concerned.

2.  In Health and Safety Code section 33250, the Legislature found the existence of this condition throughout the state, and finds the condition contrary to the public interest (Stats.1970, ch. 1154, § 4).

3.  Pursuant to Title 25 of the California Administrative Code section 1060, effective January 4, 1974, the maintenance standards of the 1973 Uniform Housing Code apply. Section 1060.3, so far as pertinent, provides that a manager, janitor, housekeeper or other person shall reside upon the premises.

4.  We agree with the trial court's conclusion and disagree with the landlord's contention on this matter.

5.  ‘(a) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy:(1) His rights or remedies under Section 1950.5 or 1954.(2) His right to assert a cause of action against the lessor which may arise in the future.(3) His right to a notice or hearing required by law.(4) His procdural rights in litigation in any action involving his rights and obligations as a tenant.(5) His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law.(b) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive a statutory right, where the modification or waiver is not void under subdivision (a) or under Section 1942.1, 1942.5, or 1954, shall be void as contrary to public policy unless the lease or rental agreement is presented to the lessee before he takes actual possession of the premises. This subdivision does not apply to any provisions modifying or waiving a statutory right in agreements renewing leases or rental agreements where the same provision was also contained in the lease or rental agreement which is being renewed.(c) This section shall apply only to leases and rental agreements executed on or after January 1, 1976.' (Emphasis added.)

6.  We cannot consider relevant our decision in Lee v. Giosso, 237 Cal.App.2d 246, 46 Cal.Rptr. 803, as it pertained to a condition inside the leased premises. Inglis v. Garland, 19 Cal.App.2d Supp. 767, 64 P.2d 501, involved a commercial lease. The distinction as to privately negotiated leases based on Werner v. Knoll, 89 Cal.App.2d 474, 201 P.2d 45, and Barkett v. Brucato, 122 Cal.App.2d 264, 264 P.2d 978, like Tunkl, predate the 1970 state housing legislation, quoted above in footnote 2.

TAYLOR, Presiding Justice.

KANE and ROUSE, JJ., concur.