Kim v. Jans Apartments

Filed 5/15/06 Kim v. Jans Apartments CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert L. Hess, Judge. Reversed.

Law Offices of Masry & Vititoe, James W. Vititoe, Steven L. Mazza; Law Offices of Robert H. Pourvali and Robert H. Pourvali for Plaintiff and Appellant.

Harrington, Foxx, Dubrow & Canter, Dale B. Goldfarb, John C. Dewell, Colleen R. Smith and J. Edwin Rathbun for Defendants and Respondents.

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Plaintiff and appellant Sung Jin Kim appeals from a judgment entered following the granting of a motion for summary judgment in favor of defendants and respondents Jans Apartments, James Klaparda, Norman Klaparda, Sam Klaparda, and the Vitar Family Trust (collectively Jans)^[1] in this action for commercial premises liability. Kim contends that: (1) Jans had a duty to inspect the premises and remedy any dangerous conditions prior to giving possession of the property to its tenant; (2) after the tenant came into possession of the property, Jans had a duty to remedy any dangerous conditions of which it had actual knowledge; and (3) the trial court erroneously sustained objections to Kim's expert declaration. We conclude triable issues of fact exist as to duty, and therefore, we reverse.

FACTS AND PROCEDURAL BACKGROUND

Allegations of the Complaint

On August 28, 2003, Kim filed a complaint for personal injury damages against Jans and its tenant, So Ju Story, doing business as The Dream Team (the Restaurant). The complaint alleged in pertinent part as to Jans as follows: On March 23, 2003, Kim fell from a step inside the Restaurant and suffered severe injuries. The step was not in compliance with the Building Code and was not properly lighted. Jans failed to exercise due care and failed to remedy the unreasonably defective step and lighting.

Motion for Summary Judgment and Supporting Evidence

Jans filed a motion for summary judgment on the ground that it did not owe a duty to Kim, because the premises were safe when the Restaurant took possession of the property, the dangerous condition alleged in the complaint did not exist until after the Restaurant took possession, and Jans had no duty to inspect the premises after possession had been turned over to the tenant.

In support of the motion, Jans submitted Norman's declaration, Kim's deposition testimony, and the deposition testimony of contractor Bom Bop Sim to establish the following facts. Jans and the Restaurant entered into a commercial lease on June 10, 2002. The term of the lease commenced on August 1, 2002, and ended on July 21, 2007. The Restaurant took possession of the premises on August 1, 2002. Restaurant Manager Kenny Lee hired Bom Sop Sim, owner of AM Construction Company, to remodel the interior of the business. Sim installed ceramic floor tiles and hanging light fixtures. He also constructed custom-built dining tables and a wooden deck inside the restaurant. The deck created a single step where it met the floor. The Restaurant did not tell Jans that a wooden deck would be built in the interior, and Jans did not give approval for a wooden deck to be constructed. Jans never received any plans or blueprints for the construction of the step. Sim completed construction after the Restaurant took possession, and the step did not exist on the premises until after the Restaurant took possession. On the night she was injured, Kim had been seated at one of the dining tables on the wooden deck. When she left the area, she fell from the step.

Opposition to the Motion for Summary Judgment and Supporting Evidence

Kim opposed the motion for summary judgment on the grounds that Jans had a duty to inspect the premises for dangerous conditions prior to giving possession to the Restaurant, the Restaurant remodeled the interior prior to assuming possession with Jans' knowledge and the step was constructed before the lease term commenced, but Jans failed to inspect the premises prior to giving the Restaurant possession. Moreover, even after the Restaurant took possession, Jans had a duty to remedy any dangerous conditions of which it had actual knowledge, and a Jans employee or owner observed the step after the Restaurant took possession.

In support of her opposition, Kim submitted the deposition testimony of Norman, Jans' employee Moises Medina, Lee, and Sim, as well as documentary evidence as to the following facts. Jans is a partnership formed by Norman, James, Sam and the Trust to own and manage real properties. Norman is the managing partner. Medina works at Norman's office. He performs maintenance work and rent collection for the partnership. Although the lease between Jans and the Restaurant was entered into on June 10, 2002, Jans gave the Restaurant one or two months of free rent to allow the Restaurant to prepare for business. Under the lease, Jans had the right to enter the premises at reasonable times for the purpose of inspecting the condition of the premises and verifying the Restaurant's compliance with the lease.

Lee entered into a contract with Sim to remodel the Restaurant for $25,000. In July 2002, Sim built the custom tables and installed molding, partitions, and tile. Lee prepared a receipt, dated July 23, 2002, for a cash payment to Sim of $10,000. The receipt noted that the remaining balance would be $15,000. All of the construction, including the deck, was completed within a day after Sim received the $10,000 payment from Lee. Sim eventually received a total of $26,500.

The construction took approximately one month to complete. Lee believed he had permission from Jans to do the construction at the Restaurant, because a Jans owner or employee saw the construction taking place and no one said anything. Moreover, in his opinion, the changes were merely minor lighting and paint alterations. Lee did not discuss construction of the deck with Norman. He had many conversations during this time with Medina, who came to the Restaurant every two or three days during the construction, and he told Medina that the Restaurant planned to paint the interior.

The Restaurant took possession of the premises on August 1, 2002. On August 10, 2002, Lee sent a letter to Medina to confirm that the Restaurant would be solely responsible for the cost of remodeling and hold Jans harmless from any damage, liability, or worker's compensation liability during the remodeling of the premises. Lee stated in the letter that the Restaurant was remodeling in order to better meet the expectations of current customers, because newer Korean restaurants in Korea Town had contemporary designs and decorations.

Lee testified in his deposition that at some point, a Jans owner or employee viewed the completed construction. Lee did not have any discussions with Jans about the wooden deck during the construction, but a Jans employee looked at the deck after construction was completed and before the Restaurant opened for business.^[2] After the Restaurant opened for business, Medina visited the premises approximately once a month.

In addition, Kim submitted the declaration of licensed civil engineer Brad Avrit. Avrit stated that the step created by the deck was approximately 8 inches in height. He declared that the step violated Los Angeles Municipal Code, section 91.1000, Chapter 10 of the California Building Code, section 1003.2.6, which requires interior elevation changes of less than 12 inches along a path of exit travel to be made by ramps. Avrit also opined that: the step was a dangerous condition because it violated the Building Code; a reasonable inspection would have revealed the construction was performed without building permits, as well as the dangerous condition created by the step; Jans' failure to request copies of building permits constituted implied consent to the project; and Jans was responsible for maintaining the building in a safe condition.

Reply and Trial Court Ruling

Jans filed a reply arguing that it did not owe a duty to Kim. Jans asserted that whether the step constituted a dangerous condition, or whether Jans inspected the premises or had knowledge of the construction was irrelevant. Jans filed evidentiary objections to the speculative statements in Avrit's declaration.

A hearing was held on the motion. The trial court determined that when a tenant makes post-possession alterations, the landlord has no duty to inspect the premises for any dangerous conditions created by the alterations. Therefore, the court concluded there were no triable issues of fact and granted the motion for summary judgment. The court also granted most of Jans' evidentiary objections to Kim's expert declaration. On March 30, 2005, the trial court entered judgment in favor of Jans. Kim filed a timely notice of appeal.

DISCUSSION

Standard of Review

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