Herbold v. Hardy

Citations: 104 Cal. App. 2d 417; 231 P.2d 910; 1951 Cal. App. LEXIS 1632Docket: Civ. 14513

Court: California Court of Appeal; May 25, 1951; California; State Appellate Court

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Respondent Earnest L. Herbold owns a property in Oakland, which includes the "Piedmont" theatre and several stores. In 1941, he leased the theatre to Gerald Hardy for 15 years, and Hardy later assigned the lease to Hardy Theatres, Inc. In 1947, Hardy contracted for a new marquee, leading to this litigation. Respondent sought an injunction to remove the new marquee and restore the original, claiming damages. 

The original marquee had two wings parallel to the building's faces and a central unit that did not extend above the second-story window sills. During discussions about the new marquee, respondent insisted its height should not exceed the window sills, which Hardy and the sign company representatives agreed to. However, when the new marquee was installed, it included a large vertical signboard that obstructed the corner windows and exceeded the agreed height, prompting respondent to object forcefully. The court found that the sign was affixed without respondent's consent and violated the original agreement regarding the marquee's height and appearance.

The sign in question features two arms extending outward, each equipped with eight horizontal lines of neon tubing that curve to the back. The respondent claims this sign blocks approximately 25% of the light, and the flashing neon lights, which operate for three to four hours nightly, are highly disruptive. Photographic evidence indicates the sign obstructs views from corner windows of the respondent's apartment, severely impairing the use and enjoyment of the space. The lease grants the lessee the right to install signs for advertising the theatre, but it stipulates that the lessee is responsible for any damage caused by the sign's erection or maintenance. 

The court found the neon sign unsuitable for advertising the theatre under the lease's terms. The appellant's counsel argues that "suitable" should refer to signs acceptable in the competitive theatre advertising landscape, irrespective of the specific building context. However, the court rejected this interpretation, emphasizing the need for sign usage to respect the rights of others, per Civil Code § 3514. The lease does allow for new signs, but not without considering their appropriateness for the specific building and its occupants. The appellant attempted to demonstrate the sign's suitability by comparing it to signs from other theatres, but the court maintained that suitability must consider the diverse uses of the Piedmont Theatre building. 

The term "suitable" is defined in legal contexts as fit or appropriate, taking into account the interests of others rather than solely the lessee's perspective. The court's interpretation of "suitable" aligns with this understanding, affirming that the sign must be suitable within the specific context of the Piedmont Theatre to respect the rights of other occupants. The appellant's claim that the theatre should dominate the building's advertising was also dismissed by the court.

Counsel notes that the lease describes the property boundaries (110' X 103') without specifying the theatre's dimensions and excludes "all store-rooms, flats and apartments." This approach does not indicate an intention of dominance over the property. The covenant to prevent obstruction of the theatre's signs supports the lessee's right to install advertising but does not imply dominance over other tenants. The argument that the lease was profitable for the respondent, suggesting a sacrifice of comfort for the theatre's benefit, is unconvincing. 

Additionally, appellant claims changes were made with respondent's consent, having spent $11,886.47 on the sign and marquee. However, this claim is undermined by the acknowledgment that the sign was installed under police protection and against the objection of Mr. Herbold, the respondent. The appellant failed to prove that a detailed sketch of the sign was submitted, relying instead on preliminary sketches that lacked specific dimensions and did not accurately represent the final installation.

Appellant also challenges the exclusion of evidence regarding the parties' intentions, pre-execution negotiations, and surrounding circumstances at the lease's execution. The lease, drafted by appellant’s attorney, explicitly grants the lessee the right to erect signs but does not reflect any additional intentions or understandings. The lease includes a clause stating it supersedes all prior agreements, suggesting that any additional intentions would have been incorporated into the lease itself.

Respondent's objections to questions regarding negotiations were sustained without an offer of proof from the appellant to clarify expected evidence. During oral arguments, appellant's counsel could not demonstrate that parol testimony would enhance understanding of the parties' intentions beyond the lease itself, which clearly allowed the lessee to erect a suitable new marquee. The context showed that the premises had previously been a theater, necessitating a modern marquee replacement, which the lessor permitted as long as it did not obstruct views. The only conflict arose from a conversation where respondent indicated the new marquee should not exceed the window sills, emphasizing the importance of keeping the view clear. The trial court determined that respondent did not consent to any limitations on the marquee that would obstruct views significantly.

The trial judge, having viewed the premises, had the discretion to consider his observations as independent evidence. The complaint sought $10,000 in damages and an injunction against the defendants regarding the sign, with the decree ordering the removal of the sign and awarding damages at $50 per month until compliance. Appellant argued that the removal order was excessive, but the court found it necessary to abate a continuing nuisance. The court concluded that it could not modify the judgment to create a new sign but confirmed that the existing sign was unsuitable. The lessee retains the right to install a suitable sign at their own risk, and the judgment was affirmed. Judges Nourse and Dooling concurred.