Filed 7/30/20; certified for publication 8/7/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                     SECOND APPELLATE DISTRICT
                                DIVISION EIGHT

LIN JOON OH et al.,                                   B297567
                                                     (Los Angeles County
    Plaintiffs and Appellants,                       Super. Ct. No. BC629958)

        v.

TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF
AMERICA et al.,

    Defendants and Respondents.

       APPEAL from judgments of the Superior Court of Los
Angeles County. John A. Torribio, Judge. Affirmed.
       Felahy Employment Lawyers, Allen Felahy; Yash Law
Group and Yashdeep Singh for Plaintiffs and Appellants.
       Cozen O’Connor and Nathan Dooley for Defendant and
Respondent Teachers Insurance and Annuity Association of
America.
       Lynberg & Watkins, Michael J. Larin and Jerome P.
Doctors for Defendants and Respondents Cushman & Wakefield
Management Corporation, Cushman & Wakefield of California,
Inc., and JRT Realty Group, Inc.
                  __________________________
                            SUMMARY
       Plaintiffs Lin Joon Oh and Jung Hee Oh are the parents of
Ji Hoon Oh, who died when a hair care product he was handling
exploded and he was engulfed in the resulting fire. His employer
did not know the product was dangerous, and so did not comply
with legal requirements for storing and labeling hazardous
materials, or with provisions in the lease of the premises where
the fire occurred.
       Plaintiffs sued the owner and lessor of the premises
(Teachers Insurance and Annuity Association of America or
TIAA) and the companies that managed the property for TIAA
(Cushman & Wakefield Management Corporation, doing business
as Cushman & Wakefield Management Company; Cushman &
Wakefield of California, Inc.; and JRT Realty Group, Inc.,
collectively C&W). Plaintiffs claimed defendants had a duty to
maintain and inspect the area where the employer stored the
product, to ensure the area was safe and in compliance with state
and local ordinances, and should have discovered the product was
hazardous.
       The trial court granted motions by defendants for summary
judgment. The court concluded defendants had no duty of care to
the decedent. This was because defendants had no knowledge of
the dangerousness of the product, which was stored in drums
that did not disclose it was hazardous, and was stored in an area
leased to the employer, not in a common area.
       We agree there was no evidence defendants had actual or
constructive knowledge the employer was storing and handling a
hazardous material, and defendants therefore owed no duty to
the decedent. We affirm the judgment.




                                2
                             FACTS
1.    The Background
      The decedent worked for I.B.S. Beauty, Inc. (IBS or tenant),
a company wholly owned by its chief executive officer, Daniel
Kim. IBS is a small company that distributes hair care products.
IBS operated its warehousing and distribution business from a
portion of a building on Pioneer Boulevard in Santa Fe Springs,
part of an industrial complex. IBS leased the premises from
defendant TIAA in October 2007, and renewed the lease several
times, including by a third amendment in October 2015.
      On March 7, 2016, decedent was dispensing a hair care
product IBS sold as “MOA oil” from a 55-gallon drum to smaller
containers when the drum exploded, and fire engulfed decedent
and the premises. An investigation after the fire revealed that
the hair oil in the drum was highly flammable and volatile, with
a flashpoint of only 18 degrees Fahrenheit. IBS’s owner,
Mr. Kim, had no idea the hair oil was hazardous or highly
flammable until after the fire.
      Plaintiffs sued TIAA and C&W, among others.1 Their
operative third amended complaint alleged causes of action for
negligence per se, wrongful death, and a survival action. After
several demurrers and rulings we need not recount, defendants
moved for summary judgment. They contended they owed no
duty to the decedent because they had no knowledge of the



1     TIAA cross-complained against Daniel Kim, and the trial
court granted TIAA’s unopposed motion for summary
adjudication on its cause of action for negligence against
Mr. Kim.




                                3
hazard, and that plaintiffs’ claim to the contrary relied on a
misinterpretation of the lease agreement.
2.    The Evidence
      The evidence included matters concerning the tenant’s
(Mr. Kim’s) lack of knowledge of the dangerous nature of the
MOA hair oil; the lease provisions prohibiting hazardous
materials on the premises without the owner’s consent; the lease
provisions describing the premises; and whether defendants were
on notice that a hazardous material was kept on tenant’s
premises. In reviewing this evidence, it may be helpful to bear in
mind plaintiffs’ central contentions, for which the trial court
found there was no supporting evidence: that IBS stored the
hazardous hair oil in a common area that was not a part of the
leased premises, but rather an area defendants controlled and
were obligated to inspect and maintain, and further that
defendants’ property manager saw the drums containing the hair
oil and should have investigated and discovered it was
hazardous.
      a.    Actual knowledge of the danger
      As mentioned, IBS’s owner, Mr. Kim, had no idea the hair
oil was hazardous or highly flammable until after the fire, and
(accordingly) he never told anyone else that the MOA oil was
highly flammable. He repeatedly testified to the same effect, for
example, that “I didn’t think it was dangerous,” and “I thought it
was safe,” and he never told anyone he was handling flammable
materials, and that was because he “didn’t realize that the
materials were at all flammable, explosive, or volatile.”2 On an


2     Mr. Kim’s testimony is uncontroverted. Nevertheless,
plaintiffs purport to dispute it by saying it was common




                                4
earlier occasion, Mr. Kim himself had transferred MOA oil from
one of the drums to smaller containers.
      b.     Lease provisions: hazardous materials
      The lease defined hazardous materials, and prohibited
tenant from storing or using such materials on the premises
without prior written consent. Mr. Kim signed an environmental
questionnaire and disclosure statement (Exhibit D to the lease),
stating that no hazardous materials—no wastes and no chemical
products—would be used or stored on site. The lease required
tenant to immediately notify the landlord “of any and all
changes” occurring after tenant’s delivery of the completed
environmental questionnaire. The lease also made the tenant
responsible for complying with any and all applicable laws,
regulations or ordinances pertaining to hazardous materials
“which impose any duty upon Landlord or Tenant directly or with
respect to the use or occupation of the Premises.” In the third


knowledge that the MOA oil “was dangerous and hazardous.”
They cite testimony from Sammy Lee, Mr. Kim’s uncle. Mr. Lee
worked as a consultant for IBS “on a lot of aspects of the business
regarding sales, distributors, representation, a lot of design work,
photography, marketing.” He testified that “everybody knows
that oils are flammable whether it be motor oil or cooking oil, oils
are all flammable therefore it is just common sense.” He did not
testify that MOA oil was dangerous or hazardous—quite the
contrary. He saw no reason to tell customers that hair oils are
flammable; some of the labels on competitors’ products stated
they were flammable but the majority did not. “I assumed that it
was common sense that it is flammable so therefore don’t use it
near open flames.” This testimony does not create a material
dispute.




                                 5
amendment to the lease, in effect at the time of the fire, the
tenant reaffirmed and warranted that as of the date of the
amendment, the representations contained in the environmental
questionnaire and disclosure statement “attached to the Lease as
Exhibit D” were true and accurate, and that tenant was in
compliance with all applicable laws.
       c.    Lease provisions: the premises
       The “basic lease provisions” (art. I) described the premises
as: “That portion of that certain free standing Building located at
10015 S. Pioneer Boulevard, Santa Fe Springs, California 90670,
consisting of approximately 5,025 square feet, as further
described on Exhibit A attached hereto.” Similarly, article II of
the lease defined “ ‘Premises’ ” as “the premises described in [the
basic lease provisions] as further shown on Exhibit A for the
exclusive use of Tenant.”
       Exhibit A was entitled “Description of Premises” and
contained an illustration of the premises showing both the
building and an adjacent “Fenced Area.” A copy of Exhibit A is
attached at the end of this opinion. Exhibit A stated it was
“intended only to show the general layout/location of the
Premises as of the beginning of the Term of this Lease,” was
“intended for illustrative purposes only” and was not to scale.3



3      Plaintiffs assert that in the third amendment to the lease
(in effect at the time of the fire) “no reference was made to an
exhibit or other drawing or depiction describing the premises.”
This is irrelevant because the third amendment did not change
the definition of the premises, and it incorporated the original
lease, also specifying that all capitalized terms defined in the
lease had the same meaning in the amendment.




                                 6
       Mr. Kim testified that Exhibit A was “a fair representation
of the premises that [he] had leased.” At his deposition, he also
drew a diagram of the leased premises and the neighboring
property, showing the fenced area and explaining that there was
a roll-up chain door they could open during the day for trucks to
come in and out, and “you just close it before you go home,” and
“we had a lock on there.” (The parties sometimes refer to the
fenced area as the “fenced yard.”)
       The lease defined “ ‘Outside Areas’ ” as “the areas of the
Project [the industrial complex] outside the exterior walls of the
Premises, including, without limitation, the roof of the Premises,
commonly referred to as common areas.” The landlord was
responsible for maintaining the outside areas, “including but not
limited to, landscaping (including replacement thereof), sprinkler
systems, walkways, parking areas, and approved signage.”
       d.    Evidence about the 55-gallon drums
       Plaintiffs’ opposition papers contended the evidence showed
defendants’ senior property manager, Heather Montrone,
observed multiple light-blue 55-gallon drums in the fenced yard
prior to the fire, with labels identifying the contents as “KF-
9008.” According to plaintiffs, this put defendants on notice that
the substance in those drums was a hazardous material, yet
Ms. Montrone took no steps to remove them or investigate their
contents. The actual evidence about the drums was as follows.
       In September 2015, Mr. Kim received, from a new supplier
in South Korea, three light-blue, metal, 55-gallon drums
containing the MOA hair oil. He had changed suppliers to reduce
costs, and had never before ordered or received MOA oil in a 55-
gallon drum. The three drums were marked “Made in Japan”
and “KF-9008.” (Mr. Kim was concerned about the “Made in




                                7
Japan” label, and testified the Korean supplier assured him the
drums contained his MOA oil, and the supplier had reused drums
that previously contained something else.)
        At the time of the explosion, two of the three light-blue
metal drums were inside the building. The decedent was
dispensing the MOA oil from one of them. The third, empty drum
was in the fenced yard, and had been there for one or two
months. (Mr. Kim testified that “we just never got around to
[discarding] it,” and “just left it out there because it’s our space
that we can utilize.”)
        Christopher Gardea, a fire inspector who investigated the
fire, found all three drums on the premises. He too testified the
drum out in the yard was empty. He did not recall seeing a
hazardous materials placard or warning anywhere on that drum.
He could not say whether the three drums were all identically
labeled, because some of the labeling (on the two drums that were
inside the building) was destroyed in the fire. The empty drum
in the fenced area was labeled “KF-9008,” but tests of the
substance in the drum that remained intact inside the warehouse
showed it had a flash point of 18 degrees Fahrenheit, much lower
than the flash point for KF-9008 (according to Mr. Gardea,
170 degrees Fahrenheit).4
        There is a photograph in the record (an exhibit to Mr. Kim’s
deposition) that shows the fenced yard, with 11 drums in it.
Mr. Kim testified that he had received 55-gallon dark-blue plastic
drums in the past, but could not remember when, or from what


4     Under section 202 of the California Fire Code, liquids with
a flash point below 73 degrees Fahrenheit are categorized as
Class I flammable liquids. (Cal. Code Regs., tit. 24, pt. 9, § 202.)




                                  8
manufacturer. (Those dark-blue plastic drums are not at issue in
this case; the MOA oil came in three light-blue metal drums.)
There is no evidence there was ever any drum containing MOA
oil stored in the fenced yard—only the one empty drum.
       Ms. Montrone was responsible for oversight and
management of properties in the industrial complex, including
the leased premises. She or another staff member inspected the
common areas by way of a “landscape walk” on a quarterly basis.
       When questioned about looking to see what was inside the
fenced yard, Ms. Montrone said that “I don’t remember
specifically looking in to see what was in there, but I am sure
that I’ve walked by and seen stuff that was inside.” She said,
“They would have pallets, the blue plastic drum I’ve seen. That’s
really all I can recall. I do this with so many tenants. I don’t
remember specifically.” When asked if she remembered “seeing
the blue plastic drums prior to the fire,” she replied, “Correct.”5


5      At Ms. Montrone’s second deposition, on April 23, 2018
(taken in her capacity as defendants’ person most
knowledgeable), plaintiffs’ counsel drew Ms. Montrone’s attention
to her previous testimony that she remembered seeing “the blue
plastic drums” prior to the fire. Counsel then showed her the
photograph of the fenced area (mentioned in the text, ante) that
shows the fenced area with 11 drums in it. Counsel asked
Ms. Montrone if “that [is] what you were referencing when you
testified that way, these particular drums in this picture?” She
replied, “[n]ot in this picture but similar drums.” Counsel asked
how many drums she saw, and Ms. Montrone said, “I don’t
know.” She further stated, “I may have seen one. These are
behind the fence, and if I was driving by, I would not have
stopped to count how many drums there were.” Counsel asked,
“You saw more than one; is that correct?” Ms. Montrone




                                 9
       Counsel asked, “[A]fter seeing those blue drums in that
yard, did you ever ask the tenant what those were?” and
Ms. Montrone said, “No.” This was because “[t]hey were
unmarked, and a large number of our tenants use them for a
variety of reasons,” such as water storage. Counsel asked
Ms. Montrone if she was “concerned that there were products
being stored in the outside area that might, in fact, be
hazardous?” She replied, “No,” and that she took no steps to find
out what was being stored in the outside area. She testified that
she “didn’t need to know what was in the drums.”
3.      The Trial Court’s Decision
       The court granted defendants’ motions for summary
judgment. The court found defendants provided “ample evidence
of lack of knowledge that the drums contained hazardous
materials”; it was “uncontroverted that the subject barrel was
mismarked and did not in any way disclose its dangerousness”;
and that “a fair reading of the lease clearly shows that the fenced
in area belongs to [the tenant].” The court also concluded that a
landlord is not liable for a tenant’s violation of an ordinance, so
plaintiffs’ claim of negligence per se had no merit.
       The trial court entered judgments for defendants, and
plaintiffs filed timely notices of appeal.



answered, “I don’t recall.” She said, “I remember seeing a drum.
I don’t know how many.” When pressed to make an estimate, she
said, “I would say one.” There was only one “[t]hat I distinctly
remember seeing.” She remembered it because “[i]t was near the
opening of the fence; so I happened to see it going by the
building.”




                                10
                            DISCUSSION
       We agree with the trial court that the evidence shows no
triable issue of material fact, and defendants were entitled to
summary judgment.
1.     Appellate Motions
       Two motions were filed during appellate briefing.
       First, on March 25, 2020, defendants filed a motion to
augment the record with six volumes of documents, consisting of
a petition for writ of mandate with accompanying exhibits, filed
(and denied) earlier in the litigation. These documents are in the
trial record, but not all are in the appellate record. Defendants
say that in the first two pages of their opening brief, plaintiffs
improperly refer to matters that are not in the appellate record,
inaccurately characterizing several of the trial court’s demurrer
rulings. Defendants further argue plaintiffs made allegations in
earlier versions of the operative complaint that were omitted or
altered in the operative complaint, and that these are judicial
admissions (for example, allegations to the effect that the drums
were not labeled as hazardous, and that safety data sheets
supplied with the MOA oil were false). These claimed
admissions, defendants say, support their arguments and
undermine arguments plaintiffs make in their opening brief.
       We deny the request to augment the record. The demurrer
pleadings and rulings are not relevant to this appeal. The only
record we require is the record of the summary judgment
proceedings, and the court is able to distinguish legal and factual
mischaracterizations when they are present. The record we have
sufficiently demonstrates the absence of material factual
disputes.




                                11
        Second, on June 17, 2020, defendants filed a motion to
strike portions of plaintiffs’ reply brief. In that brief, plaintiffs
attached as an exhibit a page from the transcript of
Ms. Montrone’s deposition testimony, stating it had been omitted
from the appellate record. In fact, plaintiffs were mistaken; that
page of testimony is in the appellate record, twice, and has been
reviewed in normal course. We deny the request to strike the
exhibit from the record.
        Defendants also ask us to strike plaintiffs’ references to the
declaration of Daniel Kim, on pages 15 through 16 of plaintiffs’
reply brief. We grant this request because Mr. Kim’s declaration
was not part of the record before the trial court.
        The following summary of the background of the
declaration of Daniel Kim explains why we grant defendants’
request to strike it from the record of this appeal. TIAA
separately moved for summary adjudication of its cross-complaint
for negligence against Mr. Kim (see fn. 1, ante). That motion was
to be heard on the same dates as the motions against plaintiffs.
Mr. Kim did not oppose TIAA’s motion, and TIAA duly filed a
notice of nonopposition. Then, on September 7, 2018 (two weeks
after the first of the two hearings on the motions now under
review), Mr. Kim filed a motion for leave to file an opposition,
including his own proposed declaration. The declaration stated,
among other things, Mr. Kim’s understanding that IBS was
leasing only the building, not the fenced area. Mr. Kim’s motion
to file a late opposition and ensuing ex parte motions were
denied.
        Meanwhile, on September 10, 2018, plaintiffs filed a
supplemental request for judicial notice of Mr. Kim’s declaration,
as a record of the court (Evid. Code, § 452, subd. (d)). In its




                                 12
summary judgment ruling, the court granted all parties’ requests
for judicial notice “as to the existence of the documents, but not
as to any hearsay statements contained therein.”
       Under these circumstances, we cannot consider the content
of Mr. Kim’s declaration. The trial court never granted Mr. Kim
permission to file any opposition to TIAA’s motion, specifically
denying Mr. Kim’s motions, and expressly granting TIAA’s
motion as “unopposed.” That necessarily means the declaration
was not part of the evidence on TIAA’s motion for summary
adjudication against Mr. Kim. Still less can it serve as evidence
in opposition to the entirely separate motions now under review.
       The trial court’s judicial notice that the declaration exists
gets plaintiffs nowhere. “While we may take judicial notice of
court records . . . , the truth of matters asserted in such
documents is not subject to judicial notice.” (Arce v. Kaiser
Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482;
see also Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th
664, 689, fn. 22 [“[W]hile court records may be the subject of
judicial notice under Evidence Code section 452, subdivision (d),
we ‘may take judicial notice of a court’s action, but may not use it
to prove the truth of the facts found and recited.’ ”].) In short,
Mr. Kim’s declaration was not a part of the evidence before the
trial court, and for that reason, we grant defendants’ motion to
strike plaintiffs’ references to that declaration.
2.     The Standard of Review
       A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary
judgment is appropriate where “all the papers submitted show




                                 13
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (Id.,
subd. (c).)
       Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542.) It is no longer called a “disfavored” remedy. (Ibid.)
“Summary judgment is now seen as ‘a particularly suitable
means to test the sufficiency’ of the plaintiff’s or defendant’s
case.” (Ibid.) On appeal, “we take the facts from the record that
was before the trial court . . . . ‘ “We review the trial court’s
decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1037, citation omitted.)
3.     Contentions and Conclusions
       a.     The procedural claim
       Plaintiffs’ first argument is that we cannot consider TIAA’s
motion for summary adjudication of the wrongful death and
survival causes of action. They say TIAA’s separate statement
did not comply with California Rules of Court, rule 3.1350(b) and
(d)(1), because it did not separately identify each cause of action
and each material fact supporting that cause of action. The
wrongful death and survival claims are derivative of the
negligence claim, and cannot succeed if plaintiffs’ negligence
claim is dismissed, because all three causes of action rest on the
same facts. Plaintiffs insist that failure to comply with the
separate statement rules is a sufficient ground for denying
TIAA’s motion, citing Code of Civil Procedure section 437c,




                                14
subdivision (b)(1). They omit to recite that it is a sufficient
ground “in the court’s discretion.” (Ibid.) It would be an abuse of
our discretion to refuse to review the grant of summary
adjudication of the wrongful death and survival causes of action
in this case.
       b.     The negligence per se claim
       Plaintiffs’ second argument is that under the negligence
per se doctrine, negligence is presumed if the defendant violated
a statute or regulation, injury resulted from an occurrence the
regulation was designed to prevent, and the injured person was
among those the regulation was adopted to protect. They cite
authority that whether a person has violated a statute or
regulation is a question of fact (Spriesterbach v. Holland (2013)
215 Cal.App.4th 255, 263-264). So far, so good, but then
plaintiffs tell us there is “overwhelming evidence” that
defendants violated numerous fire safety regulations and
ordinances. In fact, there is none.
       Plaintiffs assert defendants violated Fire Code provisions
that require an operational permit “[t]o store, handle or use
Class I liquids,” and “to store, transport on site, dispense, use or
handle hazardous materials,” in excess of certain amounts. As is
apparent from our fact recitation, there is no evidence defendants
did any of those things.6 Nor is there any evidence that

6     The two permit requirements appear in the 2013 edition of
the California Fire Code (in effect at the time of the fire), then-
sections 105.6.16 and 105.6.20 of part 9 of title 24 of the
California Code of Regulations. (Title 24 is also referred to as the
California Building Standards Code; part 9 is the Fire Code.)
Plaintiffs also say defendants violated two other Fire Code
provisions requiring a permit application to contain certain forms




                                 15
defendants knew IBS was storing and using hazardous materials.
The evidence is undisputed that before the fire, even Mr. Kim did
not know that he had brought hazardous materials on the
premises, so he could not have conveyed that information to
defendants.
      Undeterred by the absence of facts to support the asserted
Fire Code violations, plaintiffs tell us the permit requirements
have no “scienter requirement” and that ignorance of the law
requiring a permit is no excuse. Obviously, the pertinent point is
that defendants did not know the facts—that IBS was storing
hazardous materials—not that defendants did not know the law.
Plaintiffs offer no authority to support their apparent position
that owners are strictly liable for what their lessees do.7

with specified information (§§ 407.5 & 5001.5.2), and another
that states safety data sheets shall be readily available on the
premises for hazardous materials (§ 5003.4). These regulations
are even further afield.

7     Plaintiffs cite Grant v. Hipsher (1967) 257 Cal.App.2d 375
for the proposition that liability for a violation of the Fire Code
can be imposed on defendants even though they were not in
possession of the premises. That is not the issue here, where
defendants were unaware of the hazardous materials. In Grant,
a county ordinance required premises with a swimming pool to be
fenced with self-closing and self-latching access gates. The
tenant, with the lessor’s knowledge and using lessor-provided
materials, installed a fence with a gate that was not self-closing
and self-latching, and a neighbor’s child died in the pool. (Id. at
pp. 377-379.) The court applied the principle that “where a
tenant makes a structural change which is in violation of safety
regulations and the owner has knowledge of the change, a duty is
imposed upon the owner to terminate the tenancy or compel the




                                16
       Plaintiffs then insist that defendants violated section 109.2
of the 2013 Fire Code. That section (now section 110.2) makes
the owner responsible for correction and abatement of violations
of the code. It further provides that if an occupant “creates, or
allows to be created, hazardous conditions in violation of this
code, the occupant shall be held responsible for the abatement of
such hazardous conditions.” Section 109.2 followed section 109.1
(“[u]nlawful acts”)—the code provision that makes conduct in
violation of the code unlawful. Section 109.1 (now section 110.1)
makes it unlawful “for a person, firm or corporation to . . . utilize
a building, occupancy, [or] premises . . . regulated by this code, or
cause same to be done, in conflict with or in violation of any of the
provisions of this code.”8
       It was not defendants who utilized the premises in
violation of the Fire Code, or caused that to be done—it was IBS.
       In any event, it does not matter whether Fire Code former
section 109.2 made both owner and occupant responsible for
abatement. Responsibility for correcting and abating a violation
of the code is not the same thing as creating the hazardous
condition that violates the code. It seems clear that a property
owner may be responsible for correcting and abating violations of


tenant to comply with the regulations.” (Id. at p. 381.) The
circumstances here are in no way comparable.

8     Section 109.1 of the 2013 Fire Code stated, in its entirety:
“It shall be unlawful for a person, firm or corporation to erect,
construct, alter, repair, remove, demolish or utilize a building,
occupancy, premises or system regulated by this code, or cause
same to be done, in conflict with or in violation of any of the
provisions of this code.”




                                 17
the code, once notified of the violation (see section 109.3, now
section 110.3), or if the owner is otherwise aware of the violation.
But we know of no authority for the proposition that an owner
violates section 109.2 of the Fire Code—requiring it to correct
violations—if it does not correct a code violation it did not commit
and does not know, or have reason to know, existed. (We discuss
and reject plaintiffs’ assertion there was evidence defendants
should have known of the presence of hazardous materials, post.)
Nor do plaintiffs point to any such authority.
       In short, plaintiffs have offered no evidence of a statutory
or regulatory violation by defendants, so there is no basis for
their negligence per se claim.
       c.    The claims of control and knowledge
       Plaintiffs’ third argument is that, even without the
negligence per se doctrine, defendants as property owners owed a
duty to use ordinary care to prevent injury to the decedent, as an
employee of the tenant. This argument is founded on claims that
the fenced yard was a common area that defendants were
responsible for inspecting and maintaining, and on purported
evidence that defendants knew IBS was storing and handling
hazardous materials. Neither argument has merit.
             i.      The control claim: the fenced area
       Interpretation of a contract is “solely a judicial function . . .
unless the interpretation turns upon the credibility of extrinsic
evidence.” (Parsons v. Bristol Development Co. (1965) 62 Cal.2d
861, 865.) “A contract must be so interpreted as to give effect to
the mutual intention of the parties as it existed at the time of
contracting” (Civ. Code, § 1636), and terms may be explained by
course of performance (Code Civ. Proc., § 1856, subd. (c)).




                                   18
       We refer the reader to our description of the lease
provisions in part 2.c. of the facts, ante at pages 6 through 7. We
will not repeat that recitation here, except as necessary to
express our agreement with the trial court’s construction of the
lease, namely, that the leased premises included the fenced area
shown on Exhibit A to the lease. The premises were defined as
that portion of a building consisting of 5,025 square feet, “as
further shown on Exhibit A for the exclusive use of Tenant.”
Exhibit A states it was intended for illustrative purposes only,
and it serves that purpose well—it clearly illustrates both the
building and the fenced area. We see no other reasonable
interpretation of the lease, the provisions of which we construe as
a whole, not in isolation.
       To the extent there is any ambiguity in the lease—such as
by virtue of the lease’s definition of “outside areas” (common
areas) that defendants controlled—the intention of the parties on
the point is clear from Mr. Kim’s testimony that Exhibit A was
“a fair representation of the premises that [he] had leased.” And,
both parties conducted themselves in accordance with that
intention. Mr. Kim locked up the area after the close of business,
and Ms. Montrone testified that, on her quarterly landscape
walks, “[w]e do not go in the fenced yard,” even if the fence is
open, and that the fenced-off yard was “for tenant use only, and
that’s how we operate.”
       Plaintiffs insist that Ms. Montrone “admitted in deposition”
that the fenced area was an “outside area” and therefore
defendants were responsible for maintaining it. That is arguably
inconsistent with the facts to which she testified, but her




                                19
testimony on a legal issue is irrelevant.9 The legal implications of
language in a lease is for the court to decide, based on the
document itself and admissible extrinsic evidence.
Ms. Montrone’s testimony to a legal conclusion has no
significance.
             ii.    The knowledge claim
       Plaintiffs assert defendants had a duty to decedent because
they knew the hazardous liquid was stored, handled and
dispensed on their property. To the contrary, there is no evidence
defendants knew, and there is no evidence they should have
known.
       We have recited the evidence that Mr. Kim had no idea he
was handling hazardous material at the premises (see pt. 2.a. of
the facts, pp. 4-5 & fn. 2), and we will not repeat ourselves. He
could not have conveyed what he did not know to defendants.
       That brings us to the claim defendants should have known
of the danger, and “had an opportunity and the means to prevent
the explosion.” That, too, is unsupported by the evidence.

9      Ms. Montrone was questioned in detail about the meaning
of the lease provision defining “outside areas.” Then counsel
asked, “And you understood that the landlord was responsible for
maintaining that yard, because it was outside the four concrete
walls; isn’t that true?” She answered (over counsel’s objections),
“My understanding is that we would maintain the asphalt or the
fence if there were a problem with the fence, but nothing that is
tenant property, you know, by the fence area.” Plaintiffs’ counsel
moved to strike that answer as nonresponsive, and Ms. Montrone
then answered the same question, over the same objections,
“Yes.”




                                20
      The evidence is clear there were only three light-blue metal
drums containing the hazardous MOA oil. Only one of them was
stored in the fenced area—an empty one. It was labeled “Made in
Japan” and “KF-9008.” There is no evidence it had any markings
showing its contents were dangerous or hazardous. There is
evidence Ms. Montrone might have seen this drum while walking
past the fenced area, but there is no evidence she saw any of the
labels on the drum. Indeed, she testified the drums she saw
“were unmarked.” Whether she saw that drum, or also saw
multiple blue plastic drums (which, unlike the metal drums, did
not contain MOA oil), she had no cause to think it or they posed
any danger to anyone.
      Even if it were permissible to infer Ms. Montrone saw the
KF-9008 label on the empty blue metal drum in the fenced area,
that label without more does not even hint at a possible danger,
and cannot generate a duty to investigate to determine what “KF-
9008” means. Plaintiffs tell us that a Google search of KF-9008
would have led to a company’s website that identifies the two
components of KF-9008, one of which is cyclopentasiloxane,
which (plaintiffs tell us) is flammable. But the mismarked drum
did not in any way disclose that KF-9008 was a flammable or
dangerous substance and, as the trial court observed, “[t]his fact
answers all other questions regarding duty and liability.” The
court concluded, and we agree, that there is no authority
requiring a landlord to conduct research or otherwise investigate
the contents of containers that present no indication of possible
hazards.
      Plaintiffs insist defendants had a right and a duty to
inspect the premises at the time the lease was renewed in
October 2015, when the three drums of MOA oil had already been




                               21
delivered to IBS. This gets plaintiffs nowhere either. “The
obligation to inspect arises ‘only if [the landowner] had some
reason to know there was a need for such action.’ ” (Garcia v.
Holt (2015) 242 Cal.App.4th 600, 605.) And, as we have seen, an
inspection would have revealed nothing marked hazardous or
dangerous. “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.” (Mora
v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 782.)
There was no evidence of any such circumstances here.
       In sum, there is no theory under which defendants owed a
duty of care to decedent. The trial court properly entered
summary judgment.
                          DISPOSITION
       The judgments are affirmed. Defendants shall recover
their costs on appeal.

                            GRIMES, J.

     WE CONCUR:



                       BIGELOW, P. J.



                       STRATTON, J.




                              22
23
Filed 8/7/20
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

               SECOND APPELLATE DISTRICT

                        DIVISION EIGHT

LIN JOON OH et al.,                     B297567
                                        (Los Angeles County
   Plaintiffs and Appellants,           Super. Ct. No. BC629958)

       v.                               ORDER CERTIFYING
                                             OPINION
TEACHERS INSURANCE AND                  FOR PUBLICATION
ANNUITY ASSOCIATION OF
AMERICA et al.,                       [No change in judgment]

   Defendants and Respondents.

THE COURT:
      The opinion in the above-entitled matter filed on July 30,
2020, was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
      There is no change in the judgment.




____________________________________________________________
BIGELOW, P. J.                  GRIMES, J.         STRATTON, J.
