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Lee v. Kim

California Court of Appeals, Second District, First Division

October 2, 2019

TAE SEOG LEE, Plaintiff and Appellant,
v.
JONG YUN KIM, Defendant and Respondent. GRIP SMART PRINTING, INC., Plaintiff and Respondent,
v.
JONG YUN KIM, Defendant and Appellant.

          Certified for Publication 10/30/19

          APPEALS from orders of the Superior Court of Los Angeles County Nos. BC673852, BC692010 Dalila Corral Lyons and Richard E. Rico, Judges. Affirmed.

          Employment Rights Attorneys and Richard D. Schramm for Plaintiff and Appellant Tae Seog Lee and Plaintiff and Respondent Grip Smart Printing, Inc.

          Lim Law Group and Preston H. Lim for Defendant, Appellant and Respondent Jong Yun Kim.

          WEINGART, J. [*]

         INTRODUCTION

         These consolidated appeals arise out of two separate orders under the anti-SLAPP statute addressing special motions to strike malicious prosecution claims.[1] Our chronicle begins when attorney Jong Jun Kim commenced a lawsuit against businessman Tag Seog Lee in federal court for alleged violations of the Americans with Disabilities Act (ADA; 42 U.S.C. § 12101 et seq.) and the Unruh Civil Rights Act (Unruh Act; Civ. Code, § 51 et seq.). Kim alleged his client, who used a wheelchair for mobility, was denied access to Lee's business Grip Smart Printing, Inc. (Grip Smart) because the adjacent parking lot did not have a handicapped accessible spot.

         After the complaint was filed, Lee's attorney provided information suggesting the lawsuit was meritless because Grip Smart was a corporate tenant on a commercial lease, and the landlord (and not Grip Smart or any other tenant) controlled the parking lot. Lee's attorney followed up shortly thereafter by providing a copy of the lease that verified his representations. Kim then voluntarily dropped the claims against Lee in favor of pursuing Grip Smart as well as its landlord. The federal district court eventually entered summary judgment in Grip Smart's favor, finding the alleged injury to Kim's client was not traceable to Grip Smart's conduct because, as a tenant, Grip Smart had no control over the parking lot. The landlord settled for a modest $3, 000 payment without any agreement to remedy the alleged accessibility issues.

         Lee thereafter sued Kim for malicious prosecution. Kim responded with a special motion to strike pursuant to Code of Civil Procedure section 425.16.[2] The trial court (the Honorable Dalila Corral Lyons) granted Kim's motion, finding that Kim's filing of the underlying lawsuit was protected conduct, and Lee had failed to establish a probability of prevailing on his malicious prosecution claim. After this ruling, Grip Smart filed a separate action against Kim for malicious prosecution, which was assigned to a different judicial officer (the Honorable Richard E. Rico). Kim again filed a special motion to strike. This time, the trial court denied the motion, determining that Grip Smart had established a probability of prevailing on its malicious prosecution claim.

         Lee now appeals the grant of Kim's special motion to strike Lee's claim. Kim appeals the denial of his special motion to strike Grip Smart's claim. Finding no reversible error in either ruling, we affirm.

         BACKGROUND

         A. Grip Smart's Business Premises

         In 2008, Lee and his wife purchased an existing printing business called “Smart Printing.” They incorporated the business as Grip Smart in 2009. At the time, the business was one of 12 tenants in a commercial building owned by Yong O. Hwang (Hwang) and his company, Yongo America, Inc. (Yongo). Yongo and Hwang also owned the building's parking lot. Lee entered into a series of oral and written leases with Yongo for the shop premises. Lee and his wife have never had an ownership interest in Yongo, the building, or the parking lot.

         The leases define “common areas” as the “parking lots, sidewalks, driveways and other areas used in common by the Tenants of the Shopping Center.” Lee alleged that, throughout his tenancy, Yongo never gave him permission, either orally or in writing, to make changes or additions to any of the common areas. The leases gave Yongo the exclusive authority to “supervise and administer” the common areas, including the parking lot, and to charge the tenants for associated costs.

         Yongo reserved the right to make changes to the “entrances, exits, traffic lanes and the boundaries and locations of such parking area or areas, ” including “the right to designate up to twenty-five percent (25%) of such parking area for the exclusive use of any... future tenant or tenants.” Lee alleged that, as a tenant, he never had the right to control the parking lot.

         Yongo was further responsible for causing the “common and parking areas” “to be graded, surfaced, marked and landscaped, ” and for keeping these areas “in a neat, clean[, ] orderly” and repaired condition. Yongo reserved the right to determine whether anyone other than customers of the building were permitted to park their vehicles in the parking lot. The building's tenants, including Lee, agreed to comply with “rules, regulations and charges for parking” as established by Yongo.

         B. The Underlying Action

         On September 18, 2016, Kim filed a complaint in federal court on behalf of Patricia Sue Williams against Taesik Yoon, doing business as “Smart Printing.” The lawsuit (the Underlying Action) sought damages, injunctive relief, and attorneys' fees for violations of the ADA and the Unruh Act.[3] Williams is a paraplegic who uses a wheelchair for mobility. On behalf of Williams, Kim alleged Yoon was the owner of Smart Printing. Kim alleged Williams attempted to patronize the business in September 2016 but was unable to do so because the parking lot lacked an accessible parking space. Kim alleged that, on information and belief, a fully compliant parking space for persons with disabilities once existed in the lot, but Yoon failed to maintain the space and allowed the paint markings for the access aisle to fade beyond visibility. The complaint alleged the inaccessible parking lot denied Williams “full and equal access” to the printing business. Despite the fact that Williams did not enter the business, Kim alleged Williams “belie[ved]” there were additional “barriers” to access at the property and would amend the complaint once Williams was able to access Smart Printing's premises and conduct an inspection.

         Kim filed an amended complaint in October 2016, adding Lee as a defendant. The amended pleading was substantially similar to the original complaint, but alleged Yoon and Lee were both doing business as Smart Printing.

         On November 2, 2016, counsel for Lee and Grip Smart sent a letter to Kim advising that Grip Smart had no control over the parking lot and the claims in the Underlying Action were meritless. Counsel advised Kim that Yongo owned the building and parking lot where Williams allegedly encountered her disability access issues, and offered to provide Kim with the lease agreement applicable to the property. Kim declined to amend the complaint to name Yongo and instead demanded payment from Grip Smart.

         On November 4, 2016, counsel sent another letter to Kim advising Kim of the following: (1) Grip Smart had no custody or control over the property giving rise to Williams's claims; (2) Kim needed to sue Yongo, the actual owner of the parking lot; (3) Grip Smart was not liable to Williams simply by virtue of its tenancy in the building next to the parking lot; (4) federal law excluded tenants from disability access liability in cases like Williams's; (5) Kim's refusal to name the property owner was evidence of his malicious intent to pursue the lawsuit solely to exact a monetary settlement; and (6) photographs of the parking lot at issue showed properly marked handicap parking, evidencing the lack of merit to the claims. Counsel also sent Kim a copy of Grip Smart's lease.[4] Counsel asked Kim to dismiss Lee from the lawsuit and warned that his clients would seek sanctions under rule 11 of the Federal Rules of Civil Procedure if Kim continued to pursue claims against them.

         Pursuant to a stipulation signed by Lee, in January 2017 Kim again amended the complaint in the Underlying Action to add Grip Smart and Yongo as defendants. The second amended complaint did not include Yoon and Lee as defendants, and the stipulation stated that Williams would seek to dismiss Yoon and Lee without prejudice.[5] The second amended complaint identified Grip Smart as the operator of the printing business and Yongo as the owner of the property at which the business was located.

         On February 21, 2017, counsel for Lee and Grip Smart again wrote to Kim to request that Williams dismiss her ADA and Unruh Act claims. Counsel's letter reiterated the position that Williams lacked standing to sue Grip Smart because, as evidenced by the lease agreements, Grip Smart did not control the parking lot.

         When Kim failed to dismiss Grip Smart, counsel for Grip Smart moved for judgment on the pleadings pursuant to the Federal Rules of Civil Procedure, rule 12(c) or, in the alternative, for summary judgment under the Federal Rules of Civil Procedure, rule 56. The federal court considered the motion as one for summary judgment and, after considering extrinsic materials submitted by the parties, granted summary judgment in Grip Smart's favor. The federal court found uncontroverted evidence demonstrated Grip Smart did not own or control the parking lot where Williams alleged she suffered injury. It held that “because Williams' injury is not traceable to Grip Smart's actions, she lacks standing to bring disability discrimination claims against Grip Smart based on the parking lot injuries.” (Fn. omitted.) On May 19, 2017, the federal court entered judgment in favor of Grip Smart. Williams settled her claims against Yongo for a payment of $3, 000 and a mutual release.

         C. The Malicious Prosecution Actions

         1. Lee v. Kim

         (a) The Complaint

         A few months after entry of judgment in the Underlying Action, Lee filed a complaint against Kim for malicious prosecution. Lee alleged Kim filed the Underlying Action without investigating who owned the parking lot, then asserted claims against Lee's business in the second amended complaint after having been advised Yongo owned, and was in control of, the parking lot. Lee alleged Kim continued to prosecute claims against Grip Smart after learning Grip Smart had no control over the parking lot, and after admitting in each iteration of the complaint that Williams observed no accessibility violations inside Grip Smart's facility. Lee alleged the ownership of the relevant land, parking lot, and buildings was easily discoverable by a search of the records of the Los Angeles County Recorder's Office, yet Kim never conducted this simple research.

         Lee also alleged that the settlement agreement with Yongo did not address any correction of the disability access issues in the parking lot, but rather provided for only monetary compensation. As a further indication of improper purpose in filing and maintaining the Underlying Action, Lee alleged Kim and Williams filed 46 separate disability access lawsuits in federal court between March 30 and August 7, 2016, 34 of which settled. Lee alleged on information and belief that “very few or none” of the settled cases included “resolution of the disability access issues via inspections by a Certified Access Specialist, repairs to illegal parking areas, or establishment of accessible parking areas.” Instead, Lee alleged, the lawsuits were filed solely to extract monetary settlements, “the lion's share” of which would be retained by Kim, not Williams.

         (b) The Special Motion to Strike

         Kim responded by filing a special motion to strike, arguing Lee's malicious prosecution complaint arose from Kim's protected activity of representing Williams in the Underlying Action and petitioning on her behalf. Kim argued Lee had no probability of prevailing on his malicious prosecution claim because Lee did not receive a favorable determination on the merits of the Underlying Action, and the lawsuit was brought with probable cause and without malice. Specifically, Kim contended his voluntary dismissal of Lee from the Underlying Action-which occurred when Kim dismissed Lee in favor of adding Grip Smart as a defendant-was not a favorable determination on the merits because including Lee had “merely [been] a technical error.”

         Kim further argued he had probable cause to file and maintain the Underlying Action because the lease with Yongo was “insufficient” to determine who was liable and, even after a settlement was reached, Yongo continued to assert Grip Smart should be responsible for 50 percent of the liability. With respect to the element of malice, Kim contended his only motive for filing the Underlying ...


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