Opinion
4-3-1956
Sayde GENIS, Mrs. Mae Swlg and Mrs. Doris Weller, Plaintiffs and Appellants, v. Clyde A. KRASNE, Cldye A. Krasne Company, a co-partnership, Harry Maron, David Erenberg, Victor Erenberg, and Clyde A. Krasne Company, a California corporation, Defendants, Harry Maron and Clyde A. Krasne Company, a co-partnership, Respondents.* Civ. 21239.
Dryden, Harrington, Horgan & Swartz, Jacob Swartz, Los Angeles, for appellants. Fred Horowitz, Amos Friedman, Alvin F. Howard, Los Angeles, for respondents.
Sayde GENIS, Mrs. Mae Swlg and Mrs. Doris Weller, Plaintiffs and Appellants,
v.
Clyde A. KRASNE, Cldye A. Krasne Company, a co-partnership, Harry Maron, David Erenberg, Victor Erenberg, and Clyde A. Krasne Company, a California corporation, Defendants,
Harry Maron and Clyde A. Krasne Company, a co-partnership, Respondents.*
April 3, 1956.
Rehearing Denied April 23, 1956.
Hearing Granted May 29, 1956.
Dryden, Harrington, Horgan & Swartz, Jacob Swartz, Los Angeles, for appellants.
Fred Horowitz, Amos Friedman, Alvin F. Howard, Los Angeles, for respondents.
NOURSE, Justice pro tem.
Plaintiffs appeal from a judgment of dismissal entered following an order of the trial court sustaining defendants' demurrer without leave to amend.
We have come to the conclusion that the judgment must be affirmed.
The facts material to the determination of the appeal, as alleged in the complaint, are: The appellants are the owners of certain real property; this real property they leased to the defendant Krasne and he assigned that lease to respondents, who had by the assignment assumed and agreed to be bound by all the terms and conditions of the lease, on the part of the lessee to be performed. The lease contains the following covenant: 'In case Lessors shall bring suit to recover any rent due hereunder or for breach of any covenant of this lease, or to recover possession of the premises, and shall recover in the suit, or if Lessee shall bring any action for any relief against Lessors, delaratory or otherwise, arising out of this lease, and Lessors shall prevail in such action, Lessee agrees to pay Lessors a reasonable attorney's fee which shall be taxed as part of the costs of such action.' [Emphasis added.]
While they were in possession of the premises under the aforementioned lease, respondents commenced an action against appellants. The second amended complaint in that action contains four counts. The first count alleges the execution of the lease and the assignment of the lease to them (respondents here); that the doors to the demised premises were fitted with locks provided by the owners, and that the lease provided that no additional locks should be put on the doors of the demised premises; that the defendants had in their possession keys to the demised premises and permitted certain defendants, sued under fictitious names, to have possession of said keys; that appellants, as owners, had access to the demised premises at all times when the premises were not open for business, and at such times respondents did entrust the premises and their contents to the owners. Paragraph XI of the first count reads as follows: 'Between August 1, 1946 and October 26, 1947, the exact time or times being unknown to the Krasne Corporation, the defendants Doe I, Doe II and Doe III, who at all times herein mentioned were the agents, servants and employees of the owners, without the knowledge or consent of the Krasne Corporation, and during the time the demised premises and their contents were so entrusted to the owners, wrongfully entered the demised premises, using the keys to the same retained by the owners, and took away, and converted, goods, wares and merchandise of the Krasne Corporation of the reasonable value of $84,727.67, to plaintiffs' damage in said sum.'
The second count of the complaint is for all practical purposes identical with the first count except that it refers to wrongful acts occurring at a later date, and seeks the recovery of an additional $79,393.62.
The third count is a common count based on the facts alleged in the first count for money had and received, and the fourth count is a common count for money had and received based upon the second count.
The complaint in the present action then alleges that the appellants successfully defended the action brought by respondents, and in so doing incurred and paid the sum of $24,250 as attorneys' fees. It prays judgment against respondents for that amount.
It is appellants' contention that the relief sought by respondents in their action arose out of the lease. They base this contention upon the fact that in the complaint in that action respondents alleged the fact of the execution of the lease, its assignment to them, and that appellants had the keys to the demised premises and the right to enter them.
This contention cannot be sustained. The allegations referred to above constituted a mere prelude, showing the relationship of the parties. They added nothing to the cause of action thereafter stated. The gist of the cause of action is contained in the allegations of paragraph XI of the first count, which we have quoted above, and a like charging paragraph in the second count. These paragraphs do not charge any violation of the terms of the lease by the lessors (appellants) but are based upon a wrongful conversion of plaintiffs' property through the theft thereof by appellants' employees. These wrongful acts did not arise out of the lease, and the fact that thieves were able to gain entrance to the premises by reason of the fact that appellants had, under the lease, a right to retain keys to the premises in order to perform their duty to furnish janitor service to the premises, does not convert the act into one arising out of the lease, but leaves it one sounding purely in tort.
The case against the appellants is even stronger than that which the court had before it in De Mirjian v. Ideal Heating Corp., 91 Cal.App.2d 905, 206 P.2d 20, 23. There the defendant was in possession of real property under a lease from the plaintiff which contained a covenant on the part of the lessee to hold the lessor harmless from the use, misuse or neglect of the demised premises, and a further covenant to pay attorney's fees "[i]n any action at law or equity necessary to enforce Lessors' rights hereunder". Due to the negligence of an employee of the defendant, a fire occurred which resulted in damage to the leased premises and to another portion of the premises occupied by the plaintiff. In that case the plaintiff sought by his complaint to state a cause of action through the breach of the lease, and caused the property of the defendant to be attached. In reversing an order of the trial court denying defendant's motion to discharge the attachment, the court held that the negligent act sounded in tort and not in contract and that the defendant's duty to exercise reasonable care and to respond in damages for failure ure to do so were imposed by force of law independent of the contract or its terms.
In the cited case the plaintiff sought to uphold his attachment on the grounds that one of the counts set forth in his complaint sought the recovery of attorney's fees under the covenant for the payment thereof set forth in the lease. In holding that the covenant for attorney's fees was not applicable to actions sounding in tort, the court said:
'It is contended that the cause of action for attorney's fees furnishes ground for an attachment, in the amount of the demand. We entertain a contrary view. It would require a strained construction of the attorney's fee provision to extend its coverage to action to enforce a liability such as the one pleaded, which exists independently of the lessor-lessee relationship.
'Provisions imposing an obligation to pay for attorney's fees incurred in the enforcement of rights arising out of contracts are commonly found in leases and many other types of contracts. It may not be questioned that it would be permissible to frame such provisions so as to extend the liability to actions for damages arising out of torts directly or indirectly connected with the subject matter of the contract, but we have been unable to discover any reported case in which a court has had occasion to consider a contract in which such broad liability has been so expressed. Nor to our knowledge has any court passed upon the contention that a conventional provision for attorney's fees creates an obligation of the promisor to pay such fees in an action brought to recover damages arising solely out of the promisor's negligence. If such unusual and extensive liability is to be created, it must be by clearly expressed agreement of the parties and not by means of a mere interpretation of vague, general language, such as the parties here employed.'
So, here, in the case at bar it was the duty of defendants not to steal or convert the plaintiffs' property, irrespective of any contract between the parties, and it cannot be said that the breach of this duty arises out of the lease or that the conversion was a breach of the terms of the lease.
The conclusion that we have come to makes it unnecessary to consider other questions raised by the parties in their briefs.
The order denying plaintiffs' motion for leave to file amended complaint and the order denying their motion for reconsideration of the last-mentioned order are not appealable order, and the attempted appeals therefrom are dismissed.
The judgment is affirmed.
WHITE, P. J., and FOURT, J., concur. --------------- * Opinion vacated 302 P.2d 289.