Kasem v. Dion-Kindem CA2/4

Filed 10/3/14 Kasem v. Dion-Kindem CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

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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