Kim v. Wong

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

BENJAMIN KIM, as PERSONAL REPRESENTATIVE of the ESTATE OF
CHOL KIM, Plaintiff/Appellant,

v.

LARRY WONG, Defendant/Appellee.

No. 1 CA-CV 21-0128
FILED 3-10-2022

Appeal from the Superior Court in Maricopa County
No. CV2018-006871
The Honorable Daniel G. Martin, Judge

AFFIRMED

COUNSEL

Kercsmar Feltus & Collins PLLC, Scottsdale
By Gregory B. Collins
Counsel for Plaintiff/Appellant

Law Offices of Kyle A. Kinney PLLC, Scottsdale
By Kyle A. Kinney
Counsel for Defendant/Appellee
 KIM v. WONG
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

S W A N N, Judge:

¶1 The personal representative of the estate of Chol Kim
challenges the superior court’s grant of summary judgment on Kim’s
breach of bailment claim against his former landlord, Larry Wong. We
affirm because no bailment was created.

FACTS AND PROCEDURAL HISTORY

¶2 Kim leased commercial space from Wong starting in
approximately 1994 to operate a jewelry store. The parties’ written lease
expired in late 2006, at which point Kim became a month-to-month tenant.

¶3 Wong gave Kim written notice of his intent not to renew the
lease in February 2017. Wong visited the property at the beginning of
March to see if Kim had vacated, but he had not and refused to do so. Wong
locked Kim out approximately one month later and posted a notice
directing Kim to call Sherry Wong (“Sherry”) with any questions. At that
time, Kim’s jewelry inventory was still in the store.

¶4 Kim called Sherry the next day and demanded access to the
property. Sherry agreed to give him access if he was ready to remove his
belongings from the property. Kim would not confirm that he would
remove his belongings, instead demanding that Sherry fix the lock.

¶5 Kim met Sherry at the property later that day. Sherry again
told Kim she would give him one-time access to remove his belongings, but
Kim refused to confirm that he would do so.

¶6 Wong sued for forcible entry and detainer (“FED”) in justice
court and obtained an eviction judgment on May 4, 2017, following a
hearing that Kim attended. The judge told Kim that the court would issue
a writ of restitution on May 10, and the judgment recited the same
information.

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Decision of the Court

¶7 Kim was served with the writ of restitution and forcibly
evicted on May 12. He returned to the property that evening and was
arrested. That night, while Kim was in jail, someone broke into the property
and stole a portion of Kim’s inventory.

¶8 Kim sued Wong in superior court, alleging that Wong
recklessly breached his duty as a bailee by failing to protect the inventory
after evicting him. Wong counterclaimed for trespass. The superior court
granted summary judgment for Wong on Kim’s claim, concluding that
Wong owed no duty to protect the inventory because “a forcible eviction
does not give rise to an involuntary bailment.” The parties then stipulated
to a judgment on Wong’s counterclaim. Kim appeals from the final
judgment.

DISCUSSION

¶9 Summary judgment is appropriate when there is no genuine
dispute of material fact and the movant is entitled to judgment as a matter
of law. Ariz. R. Civ. P. 56(a). Summary judgment should be granted only
“if the facts produced in support of the claim or defense have so little
probative value, given the quantum of evidence required, that reasonable
people could not agree with the conclusion advanced by the proponent of
the claim or defense.” Orme School v. Reeves, 166 Ariz. 301, 309 (1990). We
review a grant of summary judgment de novo, viewing the evidence in the
light most favorable to the non-movant. Am. Furniture Warehouse Co. v.
Town of Gilbert, 245 Ariz. 156, 159, ¶ 9 (App. 2018).

¶10 Kim’s claim is for breach of a bailment. A bailment arises
“where personal property is delivered to one party by another in trust for a
specific purpose, with the express or implied agreement that the property
will be returned or accounted for when the purpose is accomplished.” Nava
v. Truly Nolen Exterminating of Houston, Inc., 140 Ariz. 497, 500 (App. 1984).
A bailee owes a duty to exercise reasonable care to prevent damage to or
loss of the bailed property. 8A Am. Jur. 2d Bailments § 78.

¶11 Citing several out-of-state cases, Kim contends that Wong, as
his former landlord, became a bailee of his inventory after service of the
writ of restitution. Kim first cites Christensen v. Hoover, 643 P.2d 525 (Colo.
1982). In Christensen, the landlord had taken the tenant’s property to a
private storage facility and refused to return it unless the tenant paid the

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storage fees. Id. at 527.1 Finding a bailment relationship, the Colorado
Supreme Court explained that a bailment arises if a landlord “actively
participates in removing the tenant’s property from the premises, or if he
assumes possession or control of the tenant’s property after the writ of
restitution has been executed.” Id. at 528.

¶12 Here, unlike in Christensen, Wong did not remove any
inventory. And though Kim contends that he was precluded from
removing the inventory, the undisputed record shows that he consistently
refused to do so, including during the approximately one-week period
between the FED hearing and service of the writ of restitution. Further,
Kim does not dispute that Wong lawfully terminated his tenancy.
Christensen made clear that “[a]fter the tenancy has been lawfully
terminated, the landlord is under no obligation . . . to store or maintain the
tenant’s possessions.” Id. at 528; see also Banks v. Korzman Assocs., 218 N.J.
Super. 370, 372 (App. Div. 1987) (“When a tenancy has been terminated by
lawful eviction, the landlord has no duty to care for property that the
former tenant has left behind.”); McCready v. Booth, 398 So.2d 1000, 1001
(Fla. Ct. App. 1981) (“We agree with the Villas that it had no duty to store
or otherwise maintain the plaintiff’s personal property once his tenancy had
been lawfully terminated.”).

¶13 Kim also cites Zissu v. IH2 Property Illinois, L.P., 157 F. Supp.
3d 797 (N.D. Ill. 2016). There, the tenants contended that the landlord acted
negligently by placing their property on the curb, where it was either stolen
or damaged. Id. at 799–800. Consistent with Christensen, Zissu concluded
that a landlord owes a duty to protect property a tenant leaves behind if the
landlord acts as an actual or constructive bailee—in other words, if the
landlord chooses to care for the property. Id. at 802. Here, Wong did not
act as a bailee. Kim does not dispute that Wong could not access Kim’s
safes or alarm system and did not disturb any of the inventory. Kim’s
reliance on Zissu is puzzling because he also cites Ringler v. Sias, 428 N.E.2d
869 (Ohio 1980), for the proposition that Wong could have avoided liability
by placing the inventory “outside of the leased unit.”

¶14 Kim also relies on Kayanda v. Kamenir, 475 N.E.2d 519 (Ohio
Mun. Ct. 1984). Kayanda did not involve a formal eviction; rather, the

1 The landlord took similar action in Poppe v. Stockert, another case
cited by Kim. 870 N.W.2d 187, 189 (N.D. 2015). The North Dakota Supreme
Court’s resolution of that case, however, hinged in part on a state-specific
statute addressing the disposal of abandoned tenant property. Id. at 189,
191–93.

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landlord closed the entire building with the tenant’s property still inside,
and the court found that the building closure made the landlord a bailee.
Id. at 521. Here, by contrast, Kim told Sherry that he would not vacate the
property, and he continued to refuse to vacate after the justice court entered
the eviction judgment. Wong also presented undisputed evidence that he
offered Kim post-lockout access to remove the inventory, but Kim declined.
There also is no competent evidence to suggest that Wong intended to seize
any of the inventory to secure a lien for unpaid rent, assuming one exists.
See A.R.S. § 33-361(D).

¶15 For these reasons, we conclude Wong owed no duty to protect
Kim’s inventory. The superior court did not err by granting summary
judgment.

CONCLUSION

¶16 We affirm. Wong may recover his taxable costs incurred in
this appeal upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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