This case was last updated from Los Angeles County Superior Courts on 06/28/2019 at 11:19:46 (UTC).

RAYMOND YI VS. JSGS PARTNERS, LLC

Case Summary

On 07/10/2017 RAYMOND YI filed a Personal Injury - Other Personal Injury lawsuit against JSGS PARTNERS, LLC. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO and MARGARET MILLER BERNAL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7792

  • Filing Date:

    07/10/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PATRICIA D. NIETO

MARGARET MILLER BERNAL

 

Party Details

Plaintiff and Petitioner

YI RAYMOND

Defendants, Respondents and Cross Plaintiffs

DOES 1 TO 100

JSGS PARTNERS LLC

KIM CHONG WOOK (DOE 1)

BAIK DONG HYUN (DOE 2)

JOHN JONG H. CHOI DOE 4

CHONG WOOK KIM DOE 1

KIM JASMINE

DA SOON PARK AKA JASMINE KIM DOE 3

JOHN JONG H. CHOI (DOE 4)

DA SOON PARK AKA JASMINE KIM (DOE 3)

PARK DA SOON AKA JASMINE KIM

DONG HYUN BAIK DOE 2

CHONG WOOK KIM (DOE 1)

CHONG WOOK KIMDOE 1

BAIK DONG HYUN

DONG HYUN BAIK (DOE 2)

Respondents, Defendants and Cross Plaintiffs

JSGS PARTNERS LLC

JOHN JONG H. CHOI DOE 4

JSGS PARTNERS. LLC

Defendants, Cross Defendants and Cross Plaintiffs

JOHN JONG H. CHOI DOE 4

DONG HYUN BAIK AN

EXPO SOUND

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF RICHARD D. HOFFMAN

HOFFMAN RICHARD DALE

HOFFMAN RICHARD D.

Defendant and Cross Plaintiff Attorneys

GMELICH THOMAS P. ESQ.

BRADLEY & GMELICH

NHAN LILY

GMELICH THOMAS PATRICK

 

Court Documents

Motion to Compel

5/31/2019: Motion to Compel

Legacy Document

9/13/2017: Legacy Document

Legacy Document

2/1/2018: Legacy Document

REQUEST FOR ENTRY OF DEFAULT

6/19/2018: REQUEST FOR ENTRY OF DEFAULT

Legacy Document

7/16/2018: Legacy Document

Minute Order

7/16/2018: Minute Order

Proof of Service (not Summons and Complaint)

7/18/2018: Proof of Service (not Summons and Complaint)

Minute Order

8/10/2018: Minute Order

Memorandum of Points & Authorities

10/24/2018: Memorandum of Points & Authorities

Minute Order

12/6/2018: Minute Order

Answer

1/17/2019: Answer

Notice

2/26/2019: Notice

Order

3/5/2019: Order

Request for Entry of Default / Judgment

4/30/2019: Request for Entry of Default / Judgment

Order

5/17/2019: Order

NOTICE OF MOTION AND MOTION OF DEFENDANT/CROSS-COMPLAINANT JSGS PARTNERS LLC TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE); ETC.

11/16/2017: NOTICE OF MOTION AND MOTION OF DEFENDANT/CROSS-COMPLAINANT JSGS PARTNERS LLC TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE); ETC.

CIVIL DEPOSIT

9/13/2017: CIVIL DEPOSIT

PROOF OF SERVICE OF SUMMONS

8/4/2017: PROOF OF SERVICE OF SUMMONS

122 More Documents Available

 

Docket Entries

  • 06/27/2019
  • at 1:30 PM in Department C; Hearing on Motion to Compel (Deposition of PMK Nanoon Christian Fellowship) - Held - Taken under Submission

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  • 06/27/2019
  • Minute Order ( (Hearing on Motion to Compel Deposition of PMK Nanoon Christia...)); Filed by Clerk

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  • 06/20/2019
  • Notice (of Non-Opposition to Motion to Compel Deposition of Person Most Knowledgeable of Nanoom Christian Fellowship); Filed by JSGS Partners. LLC (Cross-Complainant)

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  • 05/31/2019
  • Motion to Compel (Deposition of PMK of Nanoom Christian Fellowship); Filed by JSGS Partners. LLC (Cross-Complainant); JOHN JONG H. CHOI (DOE 4) (Defendant)

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  • 05/30/2019
  • Notice of Ruling; Filed by Raymond Yi (Plaintiff)

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  • 05/17/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Trial Setting Conference - Held

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  • 05/17/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Case Management Conference - Held

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  • 05/17/2019
  • Minute Order ( (Case Management Conference; Trial Setting Conference)); Filed by Clerk

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  • 05/17/2019
  • Trial Setting Order; Filed by Clerk

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  • 05/14/2019
  • Case Management Statement; Filed by Raymond Yi (Plaintiff)

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213 More Docket Entries
  • 07/21/2017
  • Amendment to Complaint (AS TO CHONG WOOK KIM (DOE 1) ); Filed by Attorney for Plaintiff

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  • 07/21/2017
  • AMENDMENT TO COMPLAINT

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  • 07/21/2017
  • Amendment to Complaint; Filed by Raymond Yi (Plaintiff)

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  • 07/10/2017
  • Civil Case Cover Sheet; Filed by Raymond Yi (Plaintiff)

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  • 07/10/2017
  • Summons (on Complaint); Filed by Raymond Yi (Plaintiff)

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  • 07/10/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 07/10/2017
  • Complaint; Filed by Raymond Yi (Plaintiff)

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  • 07/10/2017
  • Complaint filed-Summons Issued

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  • 07/10/2017
  • SUMMONS

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  • 07/10/2017
  • Complaint filed-Summons Issued; Filed by Attorney for Plaintiff

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Tentative Rulings

Case Number: BC667792    Hearing Date: February 09, 2021    Dept: C

YI v. JSGS PARTNERS LLC

CASE NO.: BC667792

HEARING: 2/9/21

#5

TENTATIVE ORDER

Defendant Choi’s renewed motion for summary judgment, or in the alternative, summary adjudication is GRANTED.

Moving Party to give NOTICE.

Defendant Choi brings a renewed motion for summary judgment, or in the alternative, summary adjudication pursuant to CCP §§ 1008(b) and 437c.

Evidentiary Objections

Defendant’s evidentiary objections are sustained as to Nos. 1-2, 4, 7, 10, 15-20, 25, 26-48. Remaining objections are overruled.

Merits

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP § 437c(p)(2).)

The Complaint, filed by Plaintiff Raymond Yi, alleges that on 9/23/15, Plaintiff was injured on Defendant JSGS’s property due to its negligence. The Complaint asserts a single cause of action for Premises Liability. Defendant Choi was subsequently added as Doe 4 to the Complaint.

JSGS filed a Cross-Complaint, naming the tenants, Sound Expo and Dong Baik, for equitable and contractual indemnity.

Issue 2

Defendant contends it owes no contractual duty to maintain or repair the garage door under the 6/8/11 Lease Agreement because the Lease delegated responsibility over maintenance and repair of the garage door to Mr. Baik, the Lessee.

Defendant submits the following relevant evidence:

· On 6/18/11, Dong Hyun Baik (Lessee) executed a Lease with Choi dba Choice Maximum Development Company (Landlord). (Defense Separate Statement (DSS) 5.)

· The Lease attached as Exhibit B is a five-year lease commencing on 7/1/11, and was up for renewal on 7/1/16. (Ex. B.)

· The Lease provides that Baik was obligated to “keep in good order, condition and repair the Premises and every part thereof...” including “doors, plate glass, and skylights located within the Premises.” The Diagram attached to the Lease specifically references the overhead doors of each unit of the Property, and Baik expressly accepted the Premises as described in that Diagram. (DSS 6.)

· Within days before Baik executed the 2011 Lease, Choi inspected the Premises, including the 3 garage doors at the Premises and the rollers and tracks to which they were connected. At that time, the garage doors were working properly, and Choi did not see any signs of damage or malfunction with the doors, or their tracks or rollers. (DSS 7.)

· On 10/22/12, Choi transferred its interest in the Lease to JSGS Partners, LLC, which is owned by Choi’s two sons. (DSS 8; Choi Depo., 25:8-19.) From November 2012 onward, Choi has been the manager of JSGS. (DSS 8.)

· From the time that Baik entered into the subject Lease up to the date of the Incident, Choi personally visited the Premises about twice per month, for approximately an hour each time. During those visits, Choi would speak with tenants to see if they were having any problems with the condition of the overall Property, and he would also inspect the overall property for any signs of damage or items needing repair. (DSS 13.)

· Neither JSGS nor Choi were ever notified or advised by Baik or anyone employed by Sound Expo prior to September 23, 2015 that anyone had ever been injured by the use of the garage doors at the Premises. (DSS 15.)

· Prior to the incident, Plaintiff worked for Sound Max/Sound Expo, and had opened the garage doors at the Premises “thousands of times” without ever having any of the doors fall from their railings or experiencing any other problems with them. (DSS 16.)

· On 9/23/15, after Plaintiff lifted Door No. 3, he heard a crack sound, and Door No. 3 fell off its railings and struck him. (DSS 17-20.)

“A commercial landowner cannot totally abrogate its landowner responsibilities merely by signing a lease. As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons. At the time the lease is executed and upon renewal a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions. Even if the commercial landlord executes a contract which requires the tenant to maintain the property in a certain condition, the landlord is obligated at the time the lease is executed to take reasonable precautions to avoid unnecessary danger…. The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection. The landlord's obligation is only to do what is reasonable under the circumstances. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. However, if no such inspection is warranted, the landlord has no such obligation.” (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781.)

The court finds that Defendant has submitted sufficient evidence of Choi’s reasonable inspection to shift the burden upon summary judgment.

The Lease provides that it was Baik who was obligated to “keep in good order, condition and repair the Premises and every part thereof...” including “doors, plate glass, and skylights located within the Premises.” The Diagram attached to the Lease specifically references the overhead doors of each unit of the Property, and Baik expressly accepted the Premises as described in that Diagram. (DSS 6.)

Pursuant to Mora v. Baker Commodities, Inc., Defendant had a duty of inspection at the time the lease is executed and upon renewal. The 5-year lease was executed on 6/18/11, and was up for renewal on 7/1/16. (Ex. B.) Prior to Baik’s tenancy, Choi inspected the premises, including the 3 garage doors at the Premises and the rollers and tracks to which they were connected. At that time, the garage doors were working properly, and Choi did not see any signs of damage or malfunction with the doors, or their tracks or rollers. (DSS 7.)

Because Plaintiff’s injury occurred on 9/23/15, prior to the lease renewal on 7/1/16, Defendant was under no duty to inspect the premises unless the Lessee gives notice of any defects. Here, it is undisputed that Defendant was not given any notice that there were any problems with the garage doors. (DSS 14-15.)

In opposition, Plaintiff does not dispute that Choi performed an inspection of the 3 garage doors before Baik executed the lease and that the garage doors were working properly and did not display any damage or malfunction. (Undisputed DSS 7.) Instead, Plaintiff disputes that Choi inspected the “door mechanism,” citing Choi Deposition at 62:22-25, 63:1, and Avrit Declaration. (Disputed DSS 7.)

Choi was asked, “you relied on your tenants to let you know whether the overhead door mechanisms were safe or not, correct?” Choi responded, “That’s right. The tenants were expert in that area… All of them are in the repair business so I believe they would be knowledgeable and familiar with that.”

The cited evidence does not create a triable issue. The question posed did not specify any dates or time periods. Choi testified that he relied on his tenants to let him know whether the door was safe or not.

Although the separate statement does not refer to the following citation, the Opposition refers the court to Choi’s deposition at 29:19-25 where Choi was asked if he ever inspected the doors to see if they worked properly. Choi did not answer the question with a yes or no answer. Instead, he replied, “I am not knowledgeable about such things technically; such inspections would be done by the tenants who are knowledgeable about such things.” This evidence does not create a triable issue because Choi did not admit that he did not inspect the doors. He reiterated that the tenants were more knowledgeable about such things.

Again, Plaintiff does not dispute that Choi performed an inspection of the 3 garage doors before Baik executed the lease and that the garage doors were working properly and did not display any damage or malfunction. (Undisputed DSS 7.)

A duty can only be imposed upon a non-possessory landlord if the landlord has “actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.” (Day v. Lupo Vine Street, L.P. (2018) 22 Cal.App.5th 62, 69.) Here, it is undisputed that Choi inspected the doors prior to Baik’s tenancy, and they were working properly and did not display any damage or malfunction. (Undisputed DSS 7.) It is also undisputed that Choi did not receive any notice of any problems with the garage doors prior to the incident. (DSS 14-15.)

Avrit’s declaration does not create a triable issue because it lacks foundation. Avrit declares that Choi should have conducted ongoing inspections of the property to ensure the doors were maintained in a safe and adequate manner. (Avrit Decl., ¶ 12.) However, Avrit’s opinion is not supported by law. Pursuant to Mora v. Baker Commodities, Inc., Defendant had a duty of inspection at the time the lease is executed and upon renewal; as well as when a tenant gives notice of a defect. The law does not place an ongoing duty of inspection upon a non-possessory landowner.

Avrit also declares that Choi knew or should have known of hazardous doors located at different properties. (Id. at ¶ 14.) However, non-functioning doors at other properties are not relevant to the subject action.

Accordingly, summary adjudication of Issue 2 is GRANTED.

ISSUES 3 and 7

Defendant contends it owes no duty to maintain or repair the garage door because it did not have actual or constructive notice of the dangerous condition.

Here, it is undisputed that Defendant was not given any notice that there were any problems with the garage doors. (DSS 14-15.)

Defendant has presented evidence that it inspected the property upon execution of the 6/18/11 Lease, which was up for renewal on 7/1/16. (Motion, Ex. B.) Pursuant to Mora v. Baker Commodities, Inc., Defendant’s duty to inspect does not arise until the next renewal period, which was 7/1/16. Because Plaintiff’s injury occurred on 9/23/15, Defendant was under no duty to inspect the premises unless the Lessee gives notice of any defects. Here, it is undisputed that Choi was not given any notice that there were any problems with the garage doors. (DSS 14.)

Accordingly, summary adjudication of Issues 3 and 7 is GRANTED.

ISSUE 4

Defendant Choi contends he owes no duty because he did not have the right or ability to correct any alleged problem, defect, or malfunction with the subject garage door.

As this court has indicated in Issues 1-2 and 6 above, Defendant had a duty to inspect the premises upon execution of the Lease, when the lease is renewed, or when the tenants give notice to Defendant that the premises was in a dangerous condition.

It is undisputed that Defendant inspected the premises upon execution of the lease on 6/18/11, and Defendant was not given any notice that there were any problems with the garage doors. (DSS 14.)

Accordingly, summary adjudication of Issue 4 is GRANTED.

ISSUE 5

Defendant produces evidence that the garage door was not in a dangerous condition at the time that the subject Lease Agreement was executed. (DSS 7.)

Plaintiff does not produce any evidence of any defects in the garage door at the time the lease was executed. Although Avrit declares that the deterioration of the door “occurred over a period of substantial time” (Avrit Decl., ¶ 10), Avrit does not specify any definite date. The lease was executed on 6/18/11, and the tenant had possession of the premises for a full four years prior to the incident, and did not give notice to Choi of any problems associated with the door. Therefore, there is no evidence that the door was defective at the time the lease was executed.

Accordingly, summary adjudication of Issue 5 is GRANTED.

ISSUE 6

When the plaintiff has had an adequate opportunity for discovery, the plaintiff’s factually devoid responses to discovery may be relied on to show that one or more elements of the plaintiff’s claim cannot be established for summary judgment purposes. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 592-593.) A moving party may rely on factually devoid discovery to shift the burden of proof. (CCP § 437c(o)(2).)

Defendant contends it was not a substantial factor in causing Plaintiff’s injuries.

Defendant submits Plaintiff’s factually devoid discovery responses. Plaintiff was asked to state how Defendant created the dangerous condition that caused the accident. Plaintiff offered no facts in formal discovery to explain how Defendant was a substantial factor in causing the accident. (Ex. E, Interrogatory No. 34.)

In opposition, Plaintiff does not submit any evidence that creates a triable issue as to causation. Instead, Plaintiff invokes the doctrine of res ipsa loquitur to create the presumption that the accident was probably the result of Choi’s negligence.

However, res ipsa loquitur requires that the injury was caused by an instrumentality in the exclusive control of the defendant. (See Elcome v. Chin (2003) 110 Cal.App.4th 310, 316-317.) Here, Choi was a non-possessory landlord who rented the premises to Plaintiff’s employer, Sound Expo. Further, Plaintiff admits that he opened the door “thousands of times” prior to the incident. (Undisputed DSS 16.) Therefore, res ipsa loquitur is not a proper theory of liability because the door was not in Choi’s exclusive control.

Accordingly, summary adjudication of Issue 6 is GRANTED.

ISSUE 1

Defendant contends issue preclusion bars the imposition of liability on Choi. However, issue preclusion does not apply in this instance because the prior MSJ was brought by JSGS, and not Choi; and different evidence was submitted in the prior Opposition versus the present Opposition. The court must examine the present evidence separately, as it has endeavored to do above.

Accordingly, summary adjudication of Issue 1 is DENIED.

Case Number: BC667792    Hearing Date: January 26, 2021    Dept: C

YI v. JSGS PARTNERS LLC

CASE NO.: BC667792

HEARING: 1/26/21 @ 2:30 p.m.

#7

TENTATIVE ORDER

Plaintiff Yi’s motion to strike and/or tax costs is CONTINUED to Tuesday, 6/29/21 at 2:30 p.m. in Dept. C.

Moving Party to give NOTICE.

Plaintiff Yi moves to strike and/or tax costs per CRC § 3.1700(b).

Plaintiff initially contends that the memorandum of costs is premature because it was filed prior to Judgment. Defendant filed the memorandum of costs on 9/25/20, prior to entry of Judgment on 10/15/20.

However, the premature filing of the memorandum of costs is “treated as ‘a mere irregularity at best’ that does not constitute reversible error absent a showing of prejudice. Rather, courts treat prematurely filed cost bills as being timely filed.” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.)

The court finds that Plaintiff has not shown any prejudice because Plaintiff was able to file a timely motion to strike or tax costs. The court therefore declines to strike the memorandum in its entirety.

The court notes that many of the items in Defendant JSGS’s Memorandum of Costs were fees and costs incurred jointly by Defendant JSGS and Defendant Choi, who share the same counsel. The claims against Choi are still pending, and costs have not been apportioned between the Defendants.

Accordingly, the court reserves ruling on Defendant JSGS’s Memorandum of Costs until a judgment is rendered on the claims against Choi.

The motion is therefore CONTINUED to Tuesday, 6/29/21 at 2:30 p.m. in Dept. C.

Case Number: BC667792    Hearing Date: September 08, 2020    Dept: SEC

YI v. JSGS PARTNERS LLC

CASE NO.:  BC667792

HEARING: 9/8/20

[Remote appearances are encouraged and will be given priority.]

#7

TENTATIVE ORDER

Defendant is GRANTED.

Moving Party to give NOTICE.

Defendant JSGS Partners, LLC moves for summary judgment, or in the alternative, summary adjudication § 437c.

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established.  (CCP § 437c(p)(2).)  

The Complaint alleges that on 9/23/15, Plaintiff was injured on Defendant JSGS’s property due to its negligence.  The Complaint asserts a single cause of action for Premises Liability. 

ISSUE 1

Defendant contends it owes no contractual duty to maintain or repair the garage door under the 6/8/11 Lease Agreement because the Lease delegated responsibility over maintenance and repair of the garage door to Mr. Baik, the Lessee. 

A landowner or possessor owes a duty of care to persons who come on his property as well as to persons off the property for injuries due to the landowner's lack of due care in the management of his property… Generally, the duty owed by a landowner is nondelegable (Swanberg O'Mectin Brown v.

However, “[acommercial landowner cannot totally abrogate its landowner responsibilities merely by signing a leaseAs the owner of propertya lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons.  At the time the lease is executed and upon renewal a landlord has a right to reenter the propertyhas control of the propertyand must inspect the premises to make the premises reasonably safe from dangerous conditions.  Even if the commercial landlord executes a contract which requires the tenant to maintain the property in a certain conditionthe landlord is obligated at the time the lease is executed to take reasonable precautions to avoid unnecessary danger…. The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection.  The landlord's obligation is only to do what is reasonable under the circumstances. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant.  However, if no such inspection is warranted, the landlord has no such obligation.”  (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781.)  In Mora, the appellate court reversed a trial court grant of summary judgment, holding that lessor failed to meet its initial burden because it did not present evidence of a reasonable inspection.

On 6/18/11, Dong Baik Choi inspected the premises, including the 3 garage doors at the premises and the rollers and tracks to which they were connected.  (Defense Separate Statement (DSS) 7.)  At that time, the doors were working properly and Choi did not see any signs of damage or malfunction with the doors or their tracks or rollers.  (DSS 7.) The Lease attached as Exhibit B is a five-year lease commencing on 7/1/11, and was up for renewal on 7/1/16

On 10/22/12, Choi/Choice transferred its interest in the Lease to JSGS Partners, LLC, which is owned by Choi’s two sons.  (DSS 8; Choi Depo., 25:8-19.)

From the time Lessee entered into the Lease up to the date of the incident, Choi personally visited the premises twice per month, for approximately an hour each time.  (DSS 13, Choi Decl., ¶ 10.)  During those visits, he would speak with tenants to see if they were having any problems with the condition of the overall Property, and he would also inspect the overall property for any signs of damage or items needing repair. (Id.) Choi would visually inspect the garage doors of the premises, and

The court finds that Defendant has submitted sufficient evidence of Choi’s reasonable inspection to shift the burden upon summary judgment.

In opposition, Plaintiff disputes that Choi inspected the door mechanism .  Plaintiff points out that Choi revised his declaration after this court denied Choi’s .  Choi’s previous declaration did not state that Choi would personally visit to premises to inspect the garage doors.

However, the reason why the prior MSJ was denied was because triable issues exist regarding whether Choi made a reasonable inspection during In support of his prior MSJ, Choi 3/1/08.  The court ruled that triable issues exist because “the Lease attached as Exhibit B is a five-year lease commencing on 3/1/08. This court is unaware of any lease purportedly dated 6/18/11.  Based on the five-year lease dated 3/1/08, the lease was up for renewal on 3/1/13. Choi’s declaration does not address any inspection occurring in 2013, which would have taken place prior to the incident on 9/23/15.  Like Mora v. Baker Commodities, Inc., this court cannot find that Choi conducted a reasonable inspection based on the evidence submitted.”  (2/19/20 Order.)

Defendant has now corrected that error and submits the 6/18/11 Lease, which was up for renewal on . Mora v. Baker Commodities, Inc., Because Plaintiff’s injury occurred on 9/23/15, was not given any notice that there were any problems with the garage doors.  (DSS 14.)

Accordingly, summary adjudication of Issue 1 GRANTED.

ISSUES

Defendant contends it owes no duty to maintain or repair the garage door because it did not have actual or constructive notice of the dangerous condition.

Here, it is undisputed that Defendant was not given any notice that there were any problems with the garage doors.  (DSS 14.)

Unlike Choi’s previous MSJ, where triable issues existed regarding whether a reasonable inspection would have given rise to constructive notice, here, Defendant has presented evidence that it inspected the property upon execution of the 6/18/11 Lease, which was up for renewal on 7/1/16.  (Motion, Ex. B.)  Pursuant to Mora v. Baker Commodities, Inc., Defendant’s duty to inspect does not arise until the next renewal period, which was 7/1/16.  Because Plaintiff’s injury occurred on 9/23/15Defendant was under no duty to inspect the premises unless the Lessee gives notice of any defects.  Here, it is undisputed that Defendant was not given any notice that there were any problems with the garage doors.  (DSS 14.)

Accordingly, summary adjudication of Issues 2 and 6 is GRANTED.

ISSUE 3

Defendant contends it owes no duty because it did not have the right or ability to correct any alleged problem, defect, or malfunction with the subject garage door.

As this court has indicated in Issues 1-2 and 6 above, Defendant had a duty to inspect the premises upon execution of the Lease, when the lease is renewed, or when the tenants give notice to Defendant that the premises was in a dangerous condition.

It is undisputed that Defendant inspected the premises upon execution of the lease on 6/18/11, and Defendant was not given any notice that there were any problems with the garage doors.  (DSS 14.)

Accordingly, summary adjudication of Issue 3 is GRANTED.

ISSUE 4

Defendant produces evidence that the garage door was not in a dangerous condition at the time that the subject Lease Agreement was executed.  (DSS 7.)

Plaintiff does not produce any evidence of any defects in the garage door at the time the lease was executed.

Accordingly, summary adjudication of Issue 4 is GRANTED.

ISSUE 5

When the plaintiff has had an adequate opportunity for discovery, the plaintiff’s factually devoid responses to discovery may be relied on to show that one or more elements of the plaintiff’s claim cannot be established for summary judgment purposes. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 592-593.)  A moving party may rely on factually devoid discovery to shift the burden of proof. (CCP § 437c(o)(2).)

Defendant contends it in causing Plaintiff’s injuries.

Defendant submits Plaintiff’s factually devoid discovery responses.  Plaintiff was asked to state how Defendant created the dangerous condition that caused the accident.  Plaintiff offered no facts in formal discovery to explain how Defendant was a substantial factor in causing the accident.  (Ex. E, Interrogatory No. 34.)

In opposition, Plaintiff does not submit any evidence that creates a triable issue as to causation.

Accordingly, summary adjudication of Issue 5 is GRANTED.

As no triable issues remain, summary judgment is GRANTED.

Case Number: BC667792    Hearing Date: February 18, 2020    Dept: SEC

YI v. JSGS PARTNERS, LLC

CASE NO.:  BC667792

HEARING:  2/18/20

#4

TENTATIVE ORDER

Defendant JSGS Partners, LLC’s motion for summary judgment is CONTINUED to February 25, 2020 in Dept. SEC at 1:30 PM.

Moving Party to give NOTICE.

Case Number: BC667792    Hearing Date: February 11, 2020    Dept: SEC

YI v. JSGS PARTNERS LLC

CASE NO.: BC667792

HEARING: 2/11/20

Calendar Matter#9

TENTATIVE ORDER

Defendant Choi’s motion for summary judgment, or in the alternative, summary adjudication is DENIED.

Plaintiff to give NOTICE.

Defendant Choi moves for summary judgment, or in the alternative, summary adjudication pursuant to CCP § 437c.

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP § 437c(p)(2).)

The Complaint alleges that on 9/23/15, Plaintiff was injured on Defendant JSGS Partners, LLC (“JSGS”)’s property due to its negligence. The Complaint asserts a single cause of action for Premises Liability. On 6/25/18, Defendant Choi was substituted in as Doe 4.

Premises Liability: A landowner or possessor owes a duty of care to persons who come on his property as well as to persons off the property for injuries due to the landowner's lack of due care in the management of his property… Generally, the duty owed by a landowner is nondelegable. (Swanberg v. O'Mectin (1984) 157 Cal.App.3d 325, 331-332; Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 260; 50 Cal.Jur.3d, Premises Liability, § 12, p. 476.)

ISSUES 1-2

Choi contends that he is not liable because he was only acting as a manager and member of JSGS, and is not an alter ego.

Choi submits the following evidence:

· John Choi purchased the property in 1988, and in 2004, Choi transferred the property to the “Choi Family Trust.” (Defense Separate Statement (DSS) 2.)

· On 6/18/11, John Choi dba Choice Maximum Development Company leased the premises to Dong Hyun Baik who operated a business on the premises called Sound Expo. (DSS 5, 9.)

· On 10/22/12, Choi transferred his interest in the Lease to JSGS Partners, LLC. From November 2012, Choi has been a manager and member of JSGS, and not an owner thereof. (DSS 8.)

The court finds that Choi failed to meet his initial burden on summary judgment.

It is unclear who the owner of the property is. Although Choi testified at deposition that he transferred the property to the “Choi Family Trust,” he does not “recall the year for sure” and states “sometime between 2004 and 2007 but I don’t remember for sure.” (Choi Deposition, 24:15-21.) When asked if the trust was recorded, Choi said yes, but did not attach a copy of the Choi Family Trust to his motion. Notably, Choi does not submit any grant deed or recorded instrument to substantiate the purported transfer. Even if this court were to accept Choi’s testimony that such transfer occurred, it is unclear whether the Choi Family Trust is irrevocable. If Choi was the grantor and this trust is an intervivos revocable trust, then the trust asset is still tied to Choi.

Choi then claims that the family trust sold the property to JSGS Partners, which is owned by his two sons (Id. at 25:8-19), but when subsequently asked if the family trust sold the property to JSGS Partners, Choi stated, “I am not sure about the legal process but I think you can say that it was sold.” (Id. at 27:7-10.) Choi then submits what is titled, “Assignment of Lease,” which transfers “interest in… [the] Lease” to JSGS. (Motion, Ex. C.) This document is only a transfer of the Lease. It is not a grant deed transferring “ownership” of the property, as attested by Choi in his deposition.

Further, Choi declares that he entered into a lease with Dong Hyun Baik as John Choi dba Choice Maximum Development Company. (Choi Decl., Par. 4; Motion, Ex. B.) [The Court notes that Choi’s declaration refers to a lease signed on 6/18/11, but Exhibit B is a lease signed on 3/1/08.] If Choi had sold the property to the Choi Family Trust before 2008 or 2011, then why did Choi sign the Lease using his individual name as Landlord?

Therefore, this court finds Choi’s testimony regarding the property transfers is incomplete and contradictory.

Further, Choi contends he is not liable “as a matter of law” (Motion, 18:26-27) because he is only a member of JSGS, LLP, but CCP 17703.04 does not shield Choi from liability simply because of his membership interest. CCP 17703.04(c) provides that if the member’s conduct was tortious and resulted in injury to a third party, he may still be liable for his tortious conduct. Thus, the fact that Choi was a member of an LLC, alone, is insufficient to shield Choi from liability.

As for Issue 2 – alter ego liability, Choi does not submit any initial evidence regarding the separation of the corporate interest from Choi’s individual interest or any document showing that the entity adhered to corporate formalities.

Accordingly, summary adjudication of Issues 1-2 is DENIED.

ISSUE 3

Choi contends he owed no duty to maintain/repair the garage door because the Lease delegated responsibility over maintenance/repair to the Tenant (Motion, 21:18-25).

The court finds that Choi failed to meet his initial burden because Sections 7.1 and 7.2 of the Lease refer to “doors” generally. (DSS 6, Ex. B, Section 7.1.) This section does not mention the “garage” or “garage doors.” Thus, it is unclear from the Lease whether reference to “doors” generally, refers to the “garage doors”. At a minimum, this is a triable issue.

Further, “[a] commercial landowner cannot totally abrogate its landowner responsibilities merely by signing a lease. As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons. At the time the lease is executed and upon renewal a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions. Even if the commercial landlord executes a contract which requires the tenant to maintain the property in a certain condition, the landlord is obligated at the time the lease is executed to take reasonable precautions to avoid unnecessary danger…. The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection. The landlord's obligation is only to do what is reasonable under the circumstances. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential

serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. However, if no such inspection is warranted, the landlord has no such obligation.” (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781.) In Mora, the appellate court reversed a trial court grant of summary judgment, holding that lessor failed to meet its initial burden because it did not present evidence of a reasonable inspection.

Here, Choi submits his own declaration, attesting that he inspected the garage doors prior to the tenancy in June 2011, and found no problems or damage to the garage doors at that time. (Choi Decl., Par. 5.) However, it is unclear when the tenancy commenced and when it was up for renewal. As this court indicated in Issues 1-2, the Lease attached as Exhibit B is a five-year lease commencing on dated 3/1/08. This court is unaware of any lease purportedly dated 6/18/11. Based on the five-year lease dated 3/1/08, the lease was up for renewal on 3/1/13. Choi’s declaration does not address any inspection occurring in 2013, which would have taken place prior to the incident on 9/23/15. Like Mora v. Baker Commodities, Inc., this court cannot find that Choi conducted a reasonable inspection based on the evidence submitted.

Accordingly, summary adjudication of Issue 3 is DENIED.

ISSUES 5-6

Relying on Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 17 559, 566, Choi contends that an “essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed." However, Stathoulis v. City of Montebello concerns a Dangerous Condition of Public Property claim. Plaintiff’s Complaint does not allege any dangerous condition of public property. Rather, Plaintiff asserts only a Premises Liability claim. (Compare Plaintiff’s Complaint at checked box Prem. L-1 and the unchecked box at Prem. L-4.)

Choi also cites Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771 for the proposition that the property was safe when transferred to the tenant, and that the lessor gave up control of the property. Choi submits his own declaration, attesting that he inspected the garage doors prior to the tenancy in June 2011, and found no problems or damage to the garage doors at that time. (Choi Decl., Par. 5.)

However, Mora v. Baker Commodities, Inc. also requires a showing that the “lessor/owner has given up control of the property.” (Mora, supra, 210 Cal.App.3d at 780.) In support of the contention that he gave up control, Choi

then refers the court to Section 7.2 of the Lease, but as this court has determined in Issue 3, the Lease terms are vague and ambiguous because it does not mention the “garage” or “garage doors.” Accordingly, Choi failed to meet his initial burden of establishing that he gave up control of the property.

Summary adjudication of Issues 5-6 is DENIED.

ISSUE 7

Choi contends he was not a substantial factor in causing Plaintiff’s injuries because “the responsibility for maintaining and repairing the garage doors at the premises rested with Mr. Baik, and not with Mr. Choi.” (Motion, 26:28-27:2.) As this court has determined in Issue 3, the Lease terms are vague and ambiguous because it does not mention the “garage” or “garage doors.” Therefore, Choi has not met his initial burden of establishing lack of causation.

Summary adjudication of Issue 7 is DENIED.

ISSUES 4 and 8

Choi contends that he did not have actual or constructive notice of the dangerous condition, and therefore, duty does not attach.

However, the string of cases that Choi cites are distinguishable from the present case. Day v. Lupo Vine Street, L.P. (2018) 22 Cal.App.5th 62 holds that a lessor did not have the duty to acquire or maintain an automated external defibrillator for a tenant's boxing gym, where a patron had a fatal heart attack. According to the court, it would not be sound policy to require landlords to investigate and mitigate dangers caused by tenants' businesses.

In Garcia v. Holt (2015) 242 Cal.App.4th 600, a landscaper was injured by explosives brought onto the property by the tenant. The court held that the lessor had no duty to investigate the dangers brought onto the property by the tenant.

In Salinas v. Martin (2015) 166 Cal.App.4th 404, a contractor was injured by pit bulls who were on the property with the lessor’s express permission. The court held that a duty existed because the lessor knew about the dangerous condition that the pit bulls presented.

Unlike Day, Garcia, and Salinas, here, the garage door is part of the premises and unrelated to any dangerous condition caused by the tenant’s business. Therefore, Choi must also produce evidence that he made a reasonable

inspection prior to relinquishing possession/control. As indicated in Issue 3 above, triable issues exist regarding whether a reasonable inspection was made.

Both Stone v. Center Trust Retail Prop., Inc. (2008) 163 Cal.App.4th 608 and

Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771 involve cases where the lessor had the ability to investigate, but failed to present evidence of such. Like Stone and Mora, Choi has not met his initial burden of establishing that he made a proper investigation prior to leasing the premises or during the renewal period. (See also related Issue 3.)

Regarding constructive notice, Choi testifies that he would visit the property approximately twice a month (DSS 8), but he does not state whether he made a reasonable inspection of the garage doors. Therefore, Choi has not met his initial burden of establishing that he lacked constructive notice.

Summary adjudication of Issues 4 and 8 is DENIED.

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