Kasem v. Dion-Kindem CA2/4 , 179 Cal. Rptr. 3d 711 ( 2014 )

Filed 10/3/14 Kasem v. Dion-Kindem CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JEAN KASEM, B246916
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC483947)
v.
PETER R. DION-KINDEM et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Elizabeth White, Judge. Affirmed.
Haney & Young, Steven H. Haney, Gregory L. Young, Paul Eisner, and
Jean Kasem, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Kenneth C. Feldman, Craig E. Holden, and
Jeffry A. Miller for Defendants and Respondents.
_________________________________________
Jean Kasem appeals from the judgment dismissing her legal malpractice action
after the trial court sustained the demurrer of respondents Peter R. Dion-Kindem and
Peter R. Dion-Kindem, P.C. (Dion-Kindem) to her third amended complaint without
leave to amend. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In 2003, Ralphs Grocery Company sublet the lower level of its commercial
building space at 10309 West Olympic Boulevard to Jean Kasem’s company, The Little
Miss Liberty Round Crib Company (Little Miss Liberty); Ralphs operated its grocery
store above the subleased premises. In 2007, water and sewage flowed into the subleased
premises, damaging inventory. Kasem, individually and on behalf of Little Miss Liberty,
retained Dion-Kindem to represent her in an action against Ralphs for breach of contract
based on Ralphs’ refusal to pay for the damage incurred. (The Little Miss Liberty Crib
Co. v. Ralphs Grocery Co. (Super. Ct L.A. County, 2011, No. 410909).)
Ralphs asserted it had no liability, based on two provisions in the sublease.
Section 14 provides in pertinent part: “Sublessor shall not be liable for injury or damage
which may be sustained by Subtenant or any other person in or about the Demised
Premises, to persons, goods, wares, merchandise or property, caused by or resulting
from . . . water or rain which may leak or flow from or into any part of the Building of
which the Demised Premises is a part or from the breakage, leakage, obstruction or any
other such defect of the pipes, wires, appliances, plumbing or lighting fixtures of the
same, whether said damage or injury results from conditions arising upon the Demised
Premises or upon other portions of the Building of which the Demised Premises is a part
or from the outside.”
Section 12 of the sublease held Ralphs responsible for reasonable repair and
maintenance of the premises, including all underground and overhead utilities and service
lines, but limited its liability to an abatement of rent “for any loss, damage (including
water damage)” resulting from Ralphs’ failure to promptly or correctly perform repairs.
Little Miss Liberty asserted that the water and sewage backup was a “Hazardous
Material” within the meaning of section 29 of the sublease, and that Ralphs was thus
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required to indemnify it for damages caused by the release of hazardous material.
Subdivision A of section 29 requires the subtenant to comply with “all federal, state and
local laws, ordinances, and regulations” including various specified pollution control,
conservation, toxic substances control, and environmental and hazardous materials laws
“relating to industrial hygiene, environmental protection or the use, analysis, generation,
manufacture, storage, disposal or transportation of any oil, flammable explosives,
asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic,
contaminated or polluting materials, substances or wastes, including, without limitation,
any ‘hazardous substances,’ ‘hazardous wastes,’ ‘hazardous materials,’ or ‘toxic
substances’ under any such laws, ordinances or regulations (collectively ‘Hazardous
Materials’).”
Under section 29, subdivision D of the sublease, Ralphs was obligated to
indemnify its subtenant for all losses and expenses, including damage to property,
resulting in whole or in part from Sublessor’s or other tenants’ “release, threatened
release, discharge or generation of Hazardous Materials to, in, on, under, about or from
the Sublessor’s building or common areas of the Shopping Center parking.”
The case was tried to the court. The trial court found that Little Miss Liberty’s
damages resulted from an obstruction or leakage in the pipes or plumbing, within the
meaning of section 14 of the sublease. Pursuant to that section, Ralphs had no liability
for the resulting damages. The court also found that to the extent the damages occurred
as a result of Ralphs’ failure to adequately or promptly repair the plumbing or drains,
Little Miss Liberty was barred from recovery under section 12 of the sublease.
The court rejected Little Miss Liberty’s claim that the discharge from the
plumbing lines constituted “Hazardous Material” within the meaning of section 29 of the
sublease. According to the court, section 29 relates only to environmental liability laws;
the term “Hazardous Material” as used in that section is a term of art to be defined within
the referenced environmental laws, ordinances and regulations, and Little Miss Liberty
did not plead a violation of environmental law nor provide any credible evidence that the
discharge from the plumbing lines constituted a “Hazardous Material” under any
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environmental law. Little Miss Liberty cited to the Federal Water Pollution Control Act
because the definition of “pollutant” in that statute included the word “sewage.” (See 33
U.S.C. § 1362(6).) She also cited the Safe Drinking Water Act because its definition of
“contaminant” is “any physical, chemical, biological, or radiological substance or matter
in water.” (42 U.S.C. § 300(f)(6).) The court rejected the argument that this was
sufficient evidence to establish that “sewage” is a “hazardous, toxic, contaminated or
polluting material, substance or waste” under those statutes. The court also observed that
Little Miss Liberty failed to present evidence of substances or chemicals in the discharge
from the plumbing lines other than water and sanitary sewage. Judgment was entered for
Ralphs; Little Miss Liberty did not appeal.
Instead, Kasem brought this action for legal malpractice against her attorney,
Dion-Kindem. In the third amended complaint, the charging pleading, she alleged Dion-
Kindem committed legal malpractice by failing to designate and call an expert witness at
trial on the issue of whether sewage qualified as a hazardous material under the sublease.
The court sustained Dion-Kindem’s demurrer to the third amended complaint without
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leave to amend. Kasem appeals from the judgment of dismissal.
DISCUSSION
In reviewing the sufficiency of a complaint against a general demurrer, we treat
the demurrer as admitting all material facts properly pleaded, but not deductions or
conclusions of fact or law; we also consider matters which may be judicially noticed.
(Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal. App. 4th 1150, 1158–1159.)
To state a cause of action for legal malpractice, a plaintiff must plead the duty of
the attorney to use such skill, prudence, and diligence as members of his or her profession
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For the first time on appeal, Dion-Kindem claims Kasem has no standing to sue
for malpractice because the underlying action was brought only in the name of Little
Miss Liberty. We note that Jean Kasem signed the sublease on behalf of her company,
Little Miss Liberty, and she retained Dion-Kindem to prosecute claims against Ralphs
based on the sewage backup into the Little Miss Liberty premises; she signed that
agreement “Jean Kasem, individually and on behalf of Little Miss Liberty Round Crib
Company.” As the contracting party, she has standing to sue for legal malpractice arising
from Dion-Kindem’s representation of her company.
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commonly possess and exercise; breach of that duty; a proximate causal connection
between the breach and the resulting injury; and actual loss or damage resulting from the
attorney’s negligence. (Jocer Enterprises, Inc. v. Price (2010) 183 Cal. App. 4th 559,
572.) In sustaining the demurrer to the third amended complaint, the court took judicial
notice of the sublease between Kasem and Ralphs, and of the amended statement of
decision in the underlying trial from which the claim of malpractice arose. These
documents, which were properly considered, support the conclusion that Kasem cannot
plead the breach of duty element necessary for legal malpractice.
The alleged negligence in this case is that Dion-Kindem failed to designate and
call an expert witness at the underlying trial on the issue of whether sewage qualified as a
“Hazardous Material” under the lease, even after the trial court denied Dion-Kindem’s
request to take judicial notice of particular statutes which included sewage in the
definition of hazardous material. Kasem further alleged: “Had an expert witness been
designated and called to testify, that expert witness would have testified that: [¶] 1)
Sewage is regulated by the Clean Water Act a/k/a the Federal Water Pollution Control
Act, which is one of the enumerated Federal Acts in Section 29(A) of the lease that are
defined as ‘Hazardous Materials Law.’ 33 U.S.C. § 1251 et seq. Sewage is specifically
defined as a ‘pollutant’ by that legislation. 33 U.S.C. § 1362(6). [¶] 2) Pursuant to the
terms of the Lease, a ‘polluting material’ is included in the definition of ‘Hazardous
Materials.’ Lease Sec. 29(A). [¶] 3) Similarly, ‘sewage[’] is defined as ‘waste’ under
California law as well. California Health and Safe § 5410(a), 5411, and 5411.5(a). That
statute is also one of the laws enumerated as ‘Hazardous Materials Law’ in Section 29(A)
of the lease. [¶] 4) Pursuant to the terms of the Lease, ‘hazardous, toxic, contaminated or
polluting . . . wastes’ are included in the definition of ‘Hazardous Materials.’ Lease Sec.
29(A).” The complaint also cites other laws, including the Los Angeles Municipal Code,
that list sewage, sewage sludge, and biological waste as hazardous materials.
The problem with this claim is that Dion-Kindem properly sought judicial notice
of the relevant statutes, which would have established as a matter of law that sewage is a
hazardous material within the meaning of section 29 of the sublease. Under Evidence
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Code section 451, “Judicial notice shall be taken of the following: [¶] (a) The
decisional, constitutional, and public statutory law of this state and of the United
States . . . .” (Italics added.) The court was required to take judicial notice of the federal
and state statutes proffered by Dion-Kindem when the underlying case was tried. The
court’s refusal to do so was error, and this error formed the basis for the adverse result at
trial.
In its amended statement of decision, the trial judge faulted Kasem for failing to
produce expert testimony “that sewage discharged from the plumbing lines, as a general
fact, constitutes ‘Hazardous Material’ within the meaning of Section 29 of the Sublease.”
The court noted Kasem “had the opportunity to call expert witnesses or any witness
familiar and knowledgeable with the [Federal Water Pollution Control Act], [Safe
Drinking Water Act], and/or environmental regulatory scheme set out in Section 29A and
failed to do so.”
Had the trial judge taken judicial notice of the referenced, relevant statutes, as
required under Evidence Code section 451, subdivision (a), the question whether sewage
was included within the definition of “Hazardous Material” would have been readily
resolved. The testimony of an expert is limited to such an opinion as is “(a) Related to a
subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact[.]” (Evid. Code, § 801, subd. (a).) The information in the
referenced statutes is complex, aimed at protecting the quality of the nation’s waters.
(See City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal. 4th 613, 619.)
But these statutes were referenced in the underlying trial solely for their inclusion of
sewage within the larger category of hazardous material—the term used in section 29 of
the sublease. The consideration of statutes which expressly included sewage as a
pollutant, and listed pollutants as coming within the statutory schemes referenced by
section 29, was not a matter outside the trial court’s common experience. To the extent
statutory interpretation was an issue, that is a question of law to be determined by the
court. (In re Marriage of Thornton (2002) 95 Cal. App. 4th 251, 253–254.) Dion-
Kindem’s failure to call an expert to establish that sewage fell within the statutory
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scheme was not below the standard of care. The trial court erred in refusing to take
judicial notice of the relevant statutes and their application to the facts and, instead,
faulting Kasem for failing to present expert testimony on the issue.
No appeal was taken from that decision, and this subsequent legal malpractice
action provides no remedy for the trial court’s error. Judicial error by the underlying trial
court can negate the elements of a legal malpractice claim. (See Church v. Jamison
(2006) 143 Cal. App. 4th 1568, 1584–1585.) That is the case here.
In the amended statement of decision, the court also noted Kasem “did not present
evidence of any other substances or chemicals that were present in the discharge from the
plumbing lines other than water and sanitary sewage. Identifying that a particular
substance is a ‘Hazardous Material’ within the meaning of the regulatory framework set
forth in Section 29A of the Sublease requires the scientific knowledge of an expert.” The
amended statement of decision repeatedly refers to the discharge as “sewage,” and it
appears there was no dispute at that trial, nor is there a dispute in this appeal, that the
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discharge into Little Miss Liberty’s premises from the sewage line included “sewage.”
Kasem’s position in the underlying case was that under the relevant statutory law, sewage
constituted a hazardous material within the meaning of section 29 of the sublease as a
matter of law. The court may have been correct that proof of “other substances or
chemicals” in the discharge would have required expert testimony, but such evidence
would not have been necessary for Kasem to prevail based on sewage.
Kasem also alleged Dion-Kindem was negligent in “[f]ailing to retain an expert
witness in commercial lease interpretation and practice in how environmental clauses in
commercial leases are to be applied in a commercial lease.” She again runs afoul of the
limitations on expert testimony: expert opinion is generally not admissible on the legal
interpretation of contracts. (Summers v. A. L. Gilbert Co. (1999) 69 Cal. App. 4th 1155,
1180.) She cannot state a cause of action for malpractice based on this allegation.
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The only record we have from the underlying action against Ralphs is the
amended statement of decision.
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Finally, in the reply brief, and for the first time in this litigation, appellant argues
that if we accept respondents’ argument that the trial court in the underlying suit erred in
dismissing that action, the appellant “has a claim against Respondents for failure to
advise Appellant of her appellate rights in the underlying case” and judgment should be
reversed on that account, and that we should reverse with instructions that appellant be
given leave to amend. This is appellant’s entire argument on the point. “Obvious
reasons of fairness militate against our considering this poorly developed and untimely
argument,” and we do not. (See Garcia v. McCutchen (1997) 16 Cal. 4th 469, 482, fn 10;
Series-AGI West Linn of Appian Group Investors DE, LLC v. Eves (2013)
217 Cal. App. 4th 156, 168.)
Kasem has had numerous opportunities to amend her complaint to state a cause of
action for legal malpractice, but she has not alleged a relevant breach of duty by Dion-
Kindem. What she has established instead is trial court error which precluded her from
establishing that the sewage discharge into her premises was covered by section 29 of the
sublease.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
MANELLA, J. COLLINS, J.
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