Dissenting. — I respectfully dissent.
Today the majority announces a new rule of law. Neither side advocates this new rule. Appellant and defendant Center Trust Retail Properties, Inc., a landlord, is not urging us to expand the duties and liabilities of landlords. Respondent and plaintiff Sheila Stone would like us simply to affirm the jury’s verdict for her and the judgment in her favor. Instead, we reverse and remand. So we leave the adversarial process behind with this creation of new law.
Center Trust owned a mall. One of the tenants in the mall was a restaurant. The tenant and operator of the restaurant stopped paying rent, and Center Trust eventually initiated eviction proceedings. Center Trust obtained a writ of possession but the sheriff had not served the writ when Stone slipped on water and fell, injuring her ankle. While Center Trust had not regained physical possession of the restaurant on the date Stone fell, it had said in a legal document that it had been “restored to possession” of the premises about a week earlier. The trial court instructed the jury that a landlord must act reasonably to correct defects that it knew or should have known about. The jury obviously found that Center Trust knew or should have known of the water on the floor of the restaurant.
In my view, the trial court properly instructed the jury on the applicable law. CACI Nos. 400, 401, 405, 406, 411, 413, 430, 431, 1000, 1001, 1003, 1004, and 1006 set forth the governing law. The trial court gave all of these *617instructions, as modified, without objection from either party. CACI No. 1001, entitled “Basic Duty of Care,” told the jury, in part, “A person who owns property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could reasonably be expected to harm others.” CACI No. 1006, entitled “Landlord’s Duty,” told the jury, in part, that “[ajfter a tenant has taken possession, á landlord must use reasonable care to correct an unsafe condition under the landlord’s control if the landlord knows or reasonably should have known about it.” The court also gave (over Stone’s objection) a special instruction that Center Trust asked for. That instruction told the jury, “The factor of possession and control is relevant to determining whether a landlord acted reasonably under the circumstances. ‘It would not be reasonable to charge a lessor with liability if the lessor did not have the power, opportunity and ability to eliminate the danger.’ ”
The jury applied this governing law to the facts it found, based on all the evidence presented at trial, and returned a six-figure verdict for the plaintiff. The majority apparently concludes — although it does not say so — that the evidence at trial is insufficient to support the jury’s verdict. If substantial evidence supported the verdict, the majority could simply affirm the judgment. Instead, the majority extends and expands the law to create a new legal duty. But Stone did not ask for any special instruction on a “duty to inspect” beyond what the CACI’s say. Nor has she cross-appealed.
The majority says that, “[a]t the time of trial, the parties and the court lacked guidance from case law about the duty to inspect.” (Maj. opn., ante, at p. 614.) This is another way of saying that no one knew about this standard that only today comes into being. The trial court cannot be faulted for failing to instruct the jury on law that did not exist when the trial court tried the case.
The majority says that this court’s decision in Martinez v. Bank of America (2000) 82 Cal.App.4th 883 [98 Cal.Rptr.2d 576] (Martinez) “implies” this new rule of a duty to inspect. (Maj. opn., ante, at p. 614.) Respectfully, it does no such thing. In that case, a bank foreclosed on a property and began eviction proceedings against the tenant. While the unlawful detainer case was underway, “a pack of large, dangerous dogs” that the tenant kept on the property attacked and injured the plaintiff. (Martinez, supra, 82 Cal.App.4th at pp. 886-888.) The injured person sued the bank. The trial court granted summary judgment for the bank, and the Court of Appeal affirmed.
The court said the issue was “whether a bank, which acquires real property through foreclosure but which does not have possession or control of the property, has a duty to inspect the property and remedy its defects.” (Martinez, *618supra, 82 Cal.App.4th at p. 886.) The appellate court concluded that “the bank ha[d] a duty to inspect and remedy defects on the property only if it ha[d] actual knowledge of the defects and the ability to prevent foreseeable harm.” (Ibid.) The court concluded “that the pending unlawful detainer proceeding, and the former owners’ refusal to relinquish possession and control of the property, meant that the bank did not have the authority, ability, or power to repair defects on the property.” (Id. at p. 887.) “Because of this lack of knowledge and of power,” the court said, “and based on the factors in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561], we find that the bank owed no duty to plaintiffs.” (Martinez, supra, 82 Cal.App.4th at p. 887.)
The majority here observes that Center Trust had a right to inspect the premises. (Maj. opn., ante, at p. 614.) Indeed, the lease authorized the landlord “to enter the Premises at all times during usual business hours for the purpose of inspecting the same.” The lease also gave the landlord the right, upon the tenant’s default, “to reenter the Premises and occupy the whole or any part thereof . . . .” The majority, however, then finds a duty to inspect based on this right to inspect. This reasoning turns Martinez on its head. The jury properly concluded that Center Trust knew or should have known of the condition of the property. The trial court said the same thing in denying Center Trust’s motion for a directed verdict. The jury and the trial court apparently reached this conclusion based on all the evidence, including the fact that the tenant was blatantly engaging in a use of the premises that the lease forbade — the operation of a dance club — when the lease specified a sitdown restaurant. Substantial evidence supports the jury’s verdict.
Moreover, if the relations between landlords and tenants are to be realigned, the California Legislature is the right entity to consider this change. Relying on the Legislature would offer advantages. First, the Legislature is in a better position to determine whether this change is beneficial social policy. The majority opinion seeks to increase public safety by increasing liability. Is this change worth the cost? I do not know. There will be costs, no doubt. That is the point of imposing duties on landlords: to force them to spend more time and resources inspecting tenant premises in malls. These costs might be considerable. After all, there are many malls in California. I have no way to determine whether the savings in accident costs would offset these higher costs to mall landlords and, ultimately, to consumers. If so, then the legal change would be attractive, and might appeal strongly to our legislators. If not, then this change would cause a net increase in the costs of living in California.
*619Second, the Legislature changes rules prospectively. It gives interested groups notice and an opportunity to be heard. A retroactive change does neither. Here, the majority proposes to punish the landlord for failing to comply with a duty that, the majority says, did not exist until now.
I would affirm the judgment of the trial court.
A petition for a rehearing was denied June 30, 2008, and appellant’s petition for review by the Supreme Court was denied August 27, 2008, SI64971.
Moreno, J., and Corrigan, J., were of the opinion that the petition should be granted.Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.