MUSEUM ASSOCIATES, LTD., a Washington corporation; RICHARD BERGER, an individual v. Gary Midzor, an individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MUSEUM ASSOCIATES, LTD., a
Washington corporation; RICHARD
BERGER, an individual,
Plaintiffs - Appellants,
v.
GARY MIDZOR, an individual; CHRIS
IVEY, an individual; GM PROPERTY
DEVELOPMENT LLC, an Arizona
limited liability company; TINA
CHOATE, an individual; BRIAN
MYERS, originally named as Brian
Meyers - an individual; GOLDSTONE
MANAGEMENT LLC, an Arizona limited
liability company; CRAIG RAMSELL, an
individual; KAILASA ENTERPRISES
LLC, an Arizona limited liability
company; DICK’S MOVING SERVICES
INCORPORATED, an Arizona
corporation,
Defendants - Appellees.
No. 12-15419
D.C. No. 2:10-cv-01042-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
FILED
NOV 27 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Neil V. Wake, District Judge, Presiding
Submitted November 8, 2013 **
San Francisco, California
Before: KLEINFELD, GILMAN *** , and RAWLINSON, Circuit Judges.
The district court correctly held that, as a matter of law, Ramsell did not
breach the lease agreement. The lease unambiguously limits Ramsell’s duties.
“Landlord shall have no obligation whatsoever to provide [guard service or other
security measures]. Tenant assumes all responsibility for the protection of the
premises, Tenant, its agents, guests, and invitees and their property from the acts of
third parties.” Whatever obligation Ramsell might otherwise have had to secure
the collection, this provision relieved him of it.
The addendum to the lease did not impose a duty to obtain Berger’s consent
to removal of the collection in the circumstances of this case. The addendum
prohibits Ramsell from accepting instructions, releasing, delivering or removing
the collection without Berger’s written consent, but he did not do any of these
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.

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things. The addendum does not say that Ramsell must take precautions to protect
the collection from removal by third parties. To the contrary, the lease expressly
states that Ramsell was not responsible for providing security. “In interpreting a
contract, we do not construe one term in a way that renders another meaningless.”
ELM Ret. Ctr., LP v. Callaway, 246 P.3d 938, 942 (Ariz. Ct. App. 2010).
The collection was not under Ramsell’s control, and Ramsell did nothing to
facilitate the removal by Midzor. Ramsell could not even “enter the premises for
whatever reason” unless accompanied by Myers, Choate, or Berger. Ramsell did
not have keys to the warehouse or alarm access codes. Midzor did not need
Ramsell to access the property. Ramsell knew the collection was being moved
only because another tenant happened to call him. The lease did not require or
empower Ramsell to stop Midzor.
Nor did the lease obligate Ramsell to call Berger. The closest it comes is the
provision that in the case of an emergency “if immediate access is required to the
premises, every effort will be made to contact Brian Myers [], Tina Choate []
and/or Richard Berger [].” The phrase “and/or” means that, had the removal been
an emergency, Ramsell still would not have been required to contact Berger.
Ramsell could have contacted Myers or Choate or Berger; any one of them would

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have sufficed. He in fact called Myers. So if the clause applied, Ramsell
performed the obligation it required.
The district court properly granted summary judgment on Berger’s
negligence claim. “[W]hether a duty exists, is a matter of law for the court to
decide.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). Berger did not
establish that Ramsell had any duty to protect the collection beyond those specified
in the lease agreement. Berger cites cases requiring landlords to exercise
reasonable care to protect tenants from both dangerous conditions and dangerous
people on their land. See e.g., Martinez v. Woodmar IV Condominiums
Homeowners Assoc., Inc., 941 P.2d 218 (Ariz. 1997). Berger cites no cases
establishing a landlord’s duty to protect a tenant’s personal property from fraud.
Nor could an otherwise applicable duty survive the contractual provision that
Ramsell had no “obligation whatsoever to provide” security under the lease.
AFFIRMED.

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