Judge: John J. Kralik, Case: 23BBCV01479, Date: 2024-10-18 Tentative Ruling

Case Number: 23BBCV01479    Hearing Date: October 18, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Marco Morales (“Plaintiff”) alleges that on June 3, 2022, he visited his local Defendant 7-Eleven, Inc. (“Defendant”) retail store located at 6780 Vineland Avenue, North Hollywood, CA 91606.  He alleges that upon entering, he was approached by Defendant’s employee who became verbally aggressive to Plaintiff and began violently attacking Plaintiff.  Plaintiff alleges that the employee punched Plaintiff’s face approximately 4-5 times with a closed fist.  Plaintiff alleges that he suffered bodily injuries. 

The complaint, filed June 30, 2023, alleges causes of action for: (1) assault/battery; and (2) negligent hiring.

On November 15, 2023, Plaintiff named The Eleventh Dimension, Inc. (“TED”) as Doe 1.

B.     Motion on Calendar

On June 27, 2024, Defendant filed a motion for summary judgment against Plaintiff on the complaint. 

On October 4, 2024, Plaintiff filed opposition papers.

On October 11, 2024, Defendant filed a reply brief.

DISCUSSION

            Defendant moves for summary judgment arguing that it cannot be held vicariously or directly liable the tortious act of the store’s employees because Defendant is a franchisor of the subject store, which is owned and operated by TED, an independent contractor pursuant to the franchise agreement with Defendant (franchisor) and TED (franchisee).  Defendant argues that it lacked any control over the day-to-day operations of the subject store or its employees, the employee was not an agent of Defendant, no agent/employee of Defendant was present at the store at the time of the incident, and it did not hire/employe/supervise the store’s employee. 

As a preliminary matter, in the opposition brief, Plaintiff requests that the Court either deny the motion or continue the motion under CCP § 437c(h) to permit further discovery. 

CCP § 437c(h) states:

If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

(CCP § 437c(h).) 

Plaintiff provides the declaration of counsel Shantel Yaghoobian.  Counsel states that a continuance is necessary because the parties have not identified the cashier who allegedly assaulted and battered Plaintiff.  (Yaghoobian Decl., ¶¶3-4.)  Counsel states that without this information, it is unknown who trained and supervised the employee, or who is the employee’s employer.  (Id., ¶4.)  Counsel also states that no discovery has been obtained from TED, such that Plaintiff lacks facts regarding TED’s relationship with Defendant, Defendant’s involvement the store’s day-to-day operations, etc.  (Id., ¶5.)  Counsel states that there has been no discovery regarding Defendant’s exercise of discretion to control the store under the Franchise Agreement or its policies, how many trainings were required, how often Defendant changed its operating standards and procedures and design to the franchise, what was included in Defendant’s mandatory standards/specifications/operating procedures, and Defendant’s exercise of its own discretion to modify the manual at any time in its sole discretion as the Operations Manual or attendant documents have not yet been provided.  (Id., ¶¶6-7.)  Counsel states that Plaintiff propounded discovery on Defendant on September 11, 2023.  (Id., ¶8.) 

            Based on the affidavit of Plaintiff’s counsel, the Court finds that a continuance of the motion is appropriate to allow the parties to conduct written discovery, identify the employee of the store at the time of the subject incident, and to schedule depositions. 

CONCLUSION AND ORDER  

            Defendant 7-Eleven, Inc.’s motion for summary judgment is continued to January 31, 2025 at 8:30 a.m. pursuant to CCP § 437c(h).  If the parties believe additional time is necessary to conduct discovery and schedule depositions, the parties are ordered to attend the hearing to provide an estimated date of when discovery for the purposes of this motion would be completed. 

            Defendant shall provide notice of this order.

DATED:  October 18, 2024                                        ___________________________

                                                                              John Kralik

                                                                              Judge of the Superior Court