DAVID DROMY, Plaintiff and Respondent, v. MARINA LUKOVSKY, Defendant and Appellant.
No. B242952
Second Dist., Div. Three
Aug. 30, 2013.
219 Cal. App. 4th 278
Sonya Bekoff Molho for Defendant and Appellant.
Simkin & Associates, Michael J. Simkin; Cole & Loeterman and Dana M. Cole for Plaintiff and Respondent.
OPINION
KITCHING, J.—
INTRODUCTION
Plaintiff and respondent David Dromy leased a condominium to defendant and appellant Marina Lukovsky. Dromy wishes to sell the property. The trial court issued a declaratory judgment permitting Dromy to hold open houses, under certain conditions, on weekend days between 1:00 p.m. and 4:30 p.m. Lukovsky contends that the declaratory judgment violates
FACTS
Dromy owns a residential condominium in Santa Monica. Under a lease she entered with Dromy‘s predecessor in interest, Lukovsky has been a tenant of the property since 1994. The property is subject to the Santa Monica rent
In approximately 2010, Dromy entered into a listing agreement for the sale of the property with Dafna Milstein, a licensed real estate agent. Although Lukovsky has allowed Milstein to privately show the property to prospective purchasers by appointment, she has refused to permit open houses on weekends.
Frustrated by what he perceived to be an undue barrier to his ability to sell the property, Dromy filed a complaint for declaratory relief against Lukovsky. In the complaint, Dromy sought a declaration regarding his rights and duties under
Shortly after he commenced the action, Dromy filed a motion for summary judgment. In a declaration supporting the motion, Milstein stated: “In my professional opinion, Ms. Lukovsky‘s refusal to permit weekend open house showings at the subject property has made it much more difficult to find a prospective purchaser. The custom and practice in the residential real estate community is to conduct weekend open houses in order to market properties more effectively and expose listed properties to the general public.” Lukovsky conceded that California real estate agents customarily hold open houses on weekends.
At the hearing on the motion, the court announced it was ruling in Dromy‘s favor. The court also indicated it needed to fashion a judgment regarding Dromy‘s ability to enter the property that was fair and reasonable to both sides. Lukovsky‘s counsel requested that any judgment include safeguards against the landlord‘s excessive intrusion of Lukovsky‘s right to quiet enjoyment. For example, Lukovsky claimed that during one showing of the property, some of her possessions were “disturbed” when she was not present. Lukovsky‘s counsel thus requested that the court require Dromy to have a licensed real estate agent present during open houses.
After the hearing, the court entered a lengthy and thoughtful order granting the motion. The court concluded that as a matter of law,
On June 28, 2012, the court entered a judgment in Dromy‘s favor. The judgment provided that Dromy‘s designated licensed real estate agent shall be entitled to hold two open houses per month. It further stated that open houses “may be held on weekend days between 1:00 p.m. and 4:30 p.m.” and that
DISCUSSION
The superior court is required to grant a motion for summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (
The issues raised by a motion for summary judgment are framed by the pleadings. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 931 [125 Cal.Rptr.3d 210].) In this case, Dromy‘s complaint presents a relatively narrow issue of law, requiring the court to interpret the meaning of
1. Rules of Statutory Interpretation
“The fundamental task of statutory construction is to ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute.’ [Citation.] The words of a statute are to be interpreted in the sense in which they would have been understood at the time of the enactment.” (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 13, 21 [92 Cal.Rptr.3d 441] (Apartment Assn.).)
” ’ “The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute.” ’ ” (Apartment Assn., supra, 173 Cal.App.4th at p. 21.) “Where, as here, the plain meaning of a statute is insufficient to resolve a question of interpretation, we may review the legislative history of the statute and the wider historical circumstances of its enactment, as well as the public policy underlying the law.” (Ibid.)
“(1) In case of emergency.
“(2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to
subdivision (f) of Section 1950.5 .“(3) When the tenant has abandoned or surrendered the premises.
“(4) Pursuant to court order.” (Italics added.)
The plain language of the statute limits the time period during which a landlord may exhibit a dwelling to a prospective or actual purchaser. Unless the tenant agrees otherwise, a landlord may only exhibit the dwelling during “normal business hours.” Nothing in the statute, however, defines this phrase.
Dromy argues that the statute does not preclude weekend open houses because it states nothing about the days on which a landlord may exhibit a dwelling, but merely limits the hours he or she may do so. This argument has some merit. If the Legislature had wanted to categorically bar landlords from entering dwellings during the weekends, it could have easily done so. But this point is not dispositive. We cannot ascertain the meaning of the phrase “normal business hours” by only examining the four corners of the statute.
3. Legislative History
In 1975, the Legislature enacted
The initial draft of
In a letter to Governor Brown after Senate Bill No. 314 was passed by both houses of the Legislature, the author of the bill, Senator Nicholas C. Petris, stated: “Section 2 of the bill [Civil Code section 1954] puts into statute the common law as to landlord‘s right of entry. It is based on the Uniform Residential Landlord and Tenant Act, and is believed to be declaratory of existing law. It was inserted in the bill at the request of the California Association of Realtors, because they weren‘t satisfied with our original language . . . .” (Sen. Nicholas C. Petris, letter to Governor Edmund G. Brown, Jr., Aug. 14, 1975.)
Under California common law as it existed in 1975, a landlord could enter a dwelling unit in cases of emergency (People v. Plane (1969) 274 Cal.App.2d 1, 3 [78 Cal.Rptr. 528]) or to make urgent repairs (Kulawitz v. Pacific etc. Paper Co. (1944) 25 Cal.2d 664, 683 [155 P.2d 24]). We have found no cases, however, decided in or before 1975 that held a landlord could enter residential property without the tenant‘s consent in order to exhibit it to a prospective or actual purchaser. Thus Senator Petris‘s reference to common law does not help us understand the purpose and meaning of the provisions of
Senator Petris‘s reliance on the Uniform Residential Landlord and Tenant Act is more helpful. The model act provides: “A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations, or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors.” (7B West‘s U. Laws Ann. (2006) U. Res. Landlord
4. The Policies Underlying Section 1954
The language of
On the other hand, landlords have a strong interest in being able to sell their property if they choose to do so. The law generally favors free alienability of property. (Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 494 [220 Cal.Rptr. 818, 709 P.2d 837].) A landlord‘s ability to sell his or her property may be negatively impacted if the landlord cannot exhibit the property to prospective buyers at reasonable times. (Glenn v. Keyes (1944) 107 Utah 415 [154 P.2d 642, 644] [“It is apparent the sales of homes would be greatly retarded, if not entirely suspended, if a prospective buyer could not enter at a reasonable time and view the premises.“].)
The use of the phrase “normal business hours” in the statute appears to be a means of balancing these two competing policies. Unfortunately, the Legislature gave no guidance as to what the phrase means. When
For our purposes, the relevant community consists of licensed professionals working in the residential real estate sales business. It is undisputed that
5. The Judgment Complies with Section 1954
Based on our review of the words of
Here, the trial court‘s judgment balances the competing policies incorporated in
Lukovsky argues that the phrase “normal business hours” necessarily excludes Sundays because Sundays are defined as state holidays under
The judgment is affirmed. Respondent David Dromy is awarded costs on appeal.
Klein, P. J., and Aldrich, J., concurred.