Filed 10/3/14 Modified and certified for publication 10/29/14 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JEAN KASEM,

Plaintiff and Appellant,

v.

PETER R. DION-KINDEM et al.,

Defendants and Respondents.

 B246916

 (Los Angeles County

 Super. Ct. No. BC483947)

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 
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required to indemnify it for damages caused by the release of hazardous material. 

Subdivision A of section 29 requires the subtenant to comply with “all federal, state and 

local laws, ordinances, and regulations” including various specified pollution control, 

conservation, toxic substances control, and environmental and hazardous materials laws

“relating to industrial hygiene, environmental protection or the use, analysis, generation, 

manufacture, storage, disposal or transportation of any oil, flammable explosives, 

asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, 

contaminated or polluting materials, substances or wastes, including, without limitation, 

any ‘hazardous substances,’ ‘hazardous wastes,’ ‘hazardous materials,’ or ‘toxic 

substances’ under any such laws, ordinances or regulations (collectively ‘Hazardous 

Materials’).” 

Under section 29, subdivision D of the sublease, Ralphs was obligated to 

indemnify its subtenant for all losses and expenses, including damage to property, 

resulting in whole or in part from Sublessor’s or other tenants’ “release, threatened 

release, discharge or generation of Hazardous Materials to, in, on, under, about or from 

the Sublessor’s building or common areas of the Shopping Center parking.” 

The case was tried to the court. The trial court found that Little Miss Liberty’s 

damages resulted from an obstruction or leakage in the pipes or plumbing, within the 

meaning of section 14 of the sublease. Pursuant to that section, Ralphs had no liability 

for the resulting damages. The court also found that to the extent the damages occurred 

as a result of Ralphs’ failure to adequately or promptly repair the plumbing or drains, 

Little Miss Liberty was barred from recovery under section 12 of the sublease. 

The court rejected Little Miss Liberty’s claim that the discharge from the 

plumbing lines constituted “Hazardous Material” within the meaning of section 29 of the 

sublease. According to the court, section 29 relates only to environmental liability laws;

the term “Hazardous Material” as used in that section is a term of art to be defined within 

the referenced environmental laws, ordinances and regulations, and Little Miss Liberty 

did not plead a violation of environmental law nor provide any credible evidence that the 

discharge from the plumbing lines constituted a “Hazardous Material” under any 
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environmental law. Little Miss Liberty cited to the Federal Water Pollution Control Act 

because the definition of “pollutant” in that statute included the word “sewage.” (See 33 

U.S.C. § 1362(6).) She also cited the Safe Drinking Water Act because its definition of 

“contaminant” is “any physical, chemical, biological, or radiological substance or matter 

in water.” (42 U.S.C. § 300(f)(6).) The court rejected the argument that this was 

sufficient evidence to establish that “sewage” is a “hazardous, toxic, contaminated or 

polluting material, substance or waste” under those statutes. The court also observed that

Little Miss Liberty failed to present evidence of substances or chemicals in the discharge 

from the plumbing lines other than water and sanitary sewage. Judgment was entered for 

Ralphs; Little Miss Liberty did not appeal. 

Instead, Kasem brought this action for legal malpractice against her attorney, 

Dion-Kindem. In the third amended complaint, the charging pleading, she alleged DionKindem committed legal malpractice by failing to designate and call an expert witness at 

trial on the issue of whether sewage qualified as a hazardous material under the sublease. 

The court sustained Dion-Kindem’s demurrer to the third amended complaint without 

leave to amend. Kasem1appeals from the judgment of dismissal. 

DISCUSSION

In reviewing the sufficiency of a complaint against a general demurrer, we treat 

the demurrer as admitting all material facts properly pleaded, but not deductions or 

conclusions of fact or law; we also consider matters which may be judicially noticed. 

(Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150, 1158–1159.) 

To state a cause of action for legal malpractice, a plaintiff must plead the duty of 

the attorney to use such skill, prudence, and diligence as members of his or her profession 

 

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For the first time on appeal, Dion-Kindem claims Kasem has no standing to sue 

for malpractice because the underlying action was brought only in the name of Little 

Miss Liberty. We note that Jean Kasem signed the sublease on behalf of her company, 

Little Miss Liberty, and she retained Dion-Kindem to prosecute claims against Ralphs 

based on the sewage backup into the Little Miss Liberty premises; she signed that 

agreement “Jean Kasem, individually and on behalf of Little Miss Liberty Round Crib 

Company.” As the contracting party, she has standing to sue for legal malpractice arising 

from Dion-Kindem’s representation of her company.
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commonly possess and exercise; breach of that duty; a proximate causal connection 

between the breach and the resulting injury; and actual loss or damage resulting from the 

attorney’s negligence. (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 

572.) In sustaining the demurrer to the third amended complaint, the court took judicial 

notice of the sublease between Kasem and Ralphs, and of the amended statement of 

decision in the underlying trial from which the claim of malpractice arose. These 

documents, which were properly considered, support the conclusion that Kasem cannot 

plead the breach of duty element necessary for legal malpractice.

The alleged negligence in this case is that Dion-Kindem failed to designate and 

call an expert witness at the underlying trial on the issue of whether sewage qualified as a 

“Hazardous Material” under the lease, even after the trial court denied Dion-Kindem’s

request to take judicial notice of particular statutes which included sewage in the 

definition of hazardous material. Kasem further alleged: “Had an expert witness been 

designated and called to testify, that expert witness would have testified that: [¶] 1) 

Sewage is regulated by the Clean Water Act a/k/a the Federal Water Pollution Control 

Act, which is one of the enumerated Federal Acts in Section 29(A) of the lease that are 

defined as ‘Hazardous Materials Law.’ 33 U.S.C. § 1251 et seq. Sewage is specifically 

defined as a ‘pollutant’ by that legislation. 33 U.S.C. § 1362(6). [¶] 2) Pursuant to the 

terms of the Lease, a ‘polluting material’ is included in the definition of ‘Hazardous 

Materials.’ Lease Sec. 29(A). [¶] 3) Similarly, ‘sewage[’] is defined as ‘waste’ under 

California law as well. California Health and Safe § 5410(a), 5411, and 5411.5(a). That 

statute is also one of the laws enumerated as ‘Hazardous Materials Law’ in Section 29(A) 

of the lease. [¶] 4) Pursuant to the terms of the Lease, ‘hazardous, toxic, contaminated or 

polluting . . . wastes’ are included in the definition of ‘Hazardous Materials.’ Lease Sec.

29(A).” The complaint also cites other laws, including the Los Angeles Municipal Code, 

that list sewage, sewage sludge, and biological waste as hazardous materials.

The problem with this claim is that Dion-Kindem properly sought judicial notice 

of the relevant statutes, which would have established as a matter of law that sewage is a 

hazardous material within the meaning of section 29 of the sublease. Under Evidence 
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Code section 451, “Judicial notice shall be taken of the following: [¶] (a) The 

decisional, constitutional, and public statutory law of this state and of the United 

States . . . .” (Italics added.) The court was required to take judicial notice of the federal 

and state statutes proffered by Dion-Kindem when the underlying case was tried. The 

court’s refusal to do so was error, and this error formed the basis for the adverse result at 

trial.

In its amended statement of decision, the trial judge faulted Kasem for failing to 

produce expert testimony “that sewage discharged from the plumbing lines, as a general 

fact, constitutes ‘Hazardous Material’ within the meaning of Section 29 of the Sublease.” 

The court noted Kasem “had the opportunity to call expert witnesses or any witness 

familiar and knowledgeable with the [Federal Water Pollution Control Act], [Safe 

Drinking Water Act], and/or environmental regulatory scheme set out in Section 29A and 

failed to do so.” 

Had the trial judge taken judicial notice of the referenced, relevant statutes, as 

required under Evidence Code section 451, subdivision (a), the question whether sewage 

was included within the definition of “Hazardous Material” would have been readily 

resolved. The testimony of an expert is limited to such an opinion as is “(a) Related to a 

subject that is sufficiently beyond common experience that the opinion of an expert 

would assist the trier of fact[.]” (Evid. Code, § 801, subd. (a).) The information in the

referenced statutes is complex, aimed at protecting the quality of the nation’s waters. 

(See City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 619.) 

But these statutes were referenced in the underlying trial solely for their inclusion of 

sewage within the larger category of hazardous material—the term used in section 29 of 

the sublease. The consideration of statutes which expressly included sewage as a 

pollutant, and listed pollutants as coming within the statutory schemes referenced by 

section 29, was not a matter outside the trial court’s common experience. To the extent 

statutory interpretation was an issue, that is a question of law to be determined by the 

court. (In re Marriage of Thornton (2002) 95 Cal.App.4th 251, 253–254.) DionKindem’s failure to call an expert to establish that sewage fell within the statutory 
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scheme was not below the standard of care. The trial court erred in refusing to take 

judicial notice of the relevant statutes and their application to the facts and, instead,

faulting Kasem for failing to present expert testimony on the issue.

No appeal was taken from that decision, and this subsequent legal malpractice 

action provides no remedy for the trial court’s error. Judicial error by the underlying trial 

court can negate the elements of a legal malpractice claim. (See Church v. Jamison 

(2006) 143 Cal.App.4th 1568, 1584–1585.) That is the case here.

In the amended statement of decision, the court also noted Kasem “did not present 

evidence of any other substances or chemicals that were present in the discharge from the 

plumbing lines other than water and sanitary sewage. Identifying that a particular 

substance is a ‘Hazardous Material’ within the meaning of the regulatory framework set 

forth in Section 29A of the Sublease requires the scientific knowledge of an expert.” The 

amended statement of decision repeatedly refers to the discharge as “sewage,” and it 

appears there was no dispute at that trial, nor is there a dispute in this appeal, that the 

discharge into Little Miss Liberty’s premises from the sewage line included “sewage.” 2 

Kasem’s position in the underlying case was that under the relevant statutory law, sewage 

constituted a hazardous material within the meaning of section 29 of the sublease as a 

matter of law. The court may have been correct that proof of “other substances or 

chemicals” in the discharge would have required expert testimony, but such evidence 

would not have been necessary for Kasem to prevail based on sewage. 

Kasem also alleged Dion-Kindem was negligent in “[f]ailing to retain an expert 

witness in commercial lease interpretation and practice in how environmental clauses in 

commercial leases are to be applied in a commercial lease.” She again runs afoul of the 

limitations on expert testimony: expert opinion is generally not admissible on the legal 

interpretation of contracts. (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 

1180.) She cannot state a cause of action for malpractice based on this allegation. 

 

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The only record we have from the underlying action against Ralphs is the 

amended statement of decision. 
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Finally, in the reply brief, and for the first time in this litigation, appellant argues 

that if we accept respondents’ argument that the trial court in the underlying suit erred in 

dismissing that action, the appellant “has a claim against Respondents for failure to 

advise Appellant of her appellate rights in the underlying case” and judgment should be 

reversed on that account, and that we should reverse with instructions that appellant be 

given leave to amend. This is appellant’s entire argument on the point. “Obvious 

reasons of fairness militate against our considering this poorly developed and untimely 

argument,” and we do not. (See Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn 10; 

Series-AGI West Linn of Appian Group Investors DE, LLC v. Eves (2013) 

217 Cal.App.4th 156, 168.)

Kasem has had numerous opportunities to amend her complaint to state a cause of 

action for legal malpractice, but she has not alleged a relevant breach of duty by DionKindem. What she has established instead is trial court error which precluded her from 

establishing that the sewage discharge into her premises was covered by section 29 of the 

sublease. 

DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal.

EPSTEIN, P. J.

We concur:

MANELLA, J. COLLINS, J.
Filed 10/29/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JEAN KASEM,

Plaintiff and Appellant, 

v.

PETER R. DION-KINDEM et al.,

Defendants and Respondents.

 B246916

 (Los Angeles County

 Super. Ct. No. BC483947)

 ORDER MODIFYNG OPINION 

 AND CERTIFYING OPINION 

 FOR PUBLICATION

 [NO CHANGE IN JUDGMENT]

THE COURT:*

It is ordered that the opinion filed in the above-entitled matter, filed on October 3, 

2014,be modified as follows:

On page 4, line 3 the pronoun she is to be replaced by the company name, Little 

Miss Liberty.

Further, for good cause it now appears that the opinion should be certified for 

publication in the Official Reports and it is so ordered.

There is no change in judgment.

*EPSTEIN, P. J. MANELLA, J. COLLINS, J.