Judge Michael T. Smyth, Case 37-2022-00010101-CU-PO-CTL 2024-03-29 Tentative Ruling

Judge: Michael T. Smyth, Case: 37-2022-00010101-CU-PO-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 09:00:00 AM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00010101-CU-PO-CTL SIMMONS VS RAMADA BY WYNDHAM SAN DIEGO NATIONAL CITY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Leave to File Cross Complaint, 11/15/2023

Defendants NVA, LLC dba Ramada By Wyndham San Diego National City, Sharp Hospitality, LLC, and Ramada Worldwide Inc.'s Motion for Leave to File Cross-Complaint is GRANTED.

The court will hear from the parties regarding Defendant Ramada Worldwide Inc.'s ('RWI') Motion for Summary Judgment.

1. Motion for Leave to File Cross-Complaint Under California Code of Civil Procedure section 426.50, a party may move for leave to file a compulsory cross-complaint at any time before trial. (Code Civ. Proc., § 426.50.) The statute 'shall be liberally construed to avoid forfeiture of causes of action.' (Ibid.) A motion for leave of court to file a cross-complaint must be granted at any time during the course of an action unless substantial evidence of bad faith of the moving party is shown. (See Silver Orgs. Ltd. v. Frank (1990) 217 Cal.App.3d 94, 97-99.) The motion is unopposed and there appears to be no reason to bar Defendants from filing the proposed cross-complaint. Accordingly, the motion is granted.

2. Summary Judgment As an initial matter, the court finds the documents submitted by Defendant RWI to be sufficiently authenticated and, in any case, there does not appear to be any true dispute regarding the authenticity of the documents. The court also overrules the objections to Kendra Mallet's declaration but notes that her statements do not preclude the court from making contrary legal conclusions on the facts presented.

(Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 501 ['Of course, the parties' characterization of their relationship in the franchise contract is not dispositive.'].) The court agrees with Defendant RWI that liability under either a negligence or vicarious liability theory will not attach where a franchisor-franchisee relationship involves only a high level of general control intended to protect the franchisor's brand. But the facts of the case here differ from Patterson v. Domino's Pizza (2014) 60 Cal.4th 474, Cislaw v. Southland Corp. (1992) 4 Cal.App.4th 1284, or Nichols v. Arthur Murray, Inc. (1967) 248 Cal.App.2d 610.

In Patterson, the court found that the franchisor was not liable because the franchisor had no discretion to control hiring or personnel and therefore could not have been liable for the actions of a franchisee employee who allegedly sexually harassed another employee. (See Patterson, supra, 60 Cal.4th at 501 [the defendant 'lacked the general control . . . over relevant day-to-day aspects of the employment and Calendar No.: Event ID: TENTATIVE RULINGS

3091766 3 CASE NUMBER: CASE TITLE: SIMMONS VS RAMADA BY WYNDHAM SAN DIEGO NATIONAL 37-2022-00010101-CU-PO-CTL workplace behavior'].) In Cislaw, where the issue was related to the sale of clove cigarettes, the court found that the franchisor was not liable because the franchisee had exclusive control over the sorts of products they could stock and the franchisee representative had testified that she made 'all operational decisions' and that the franchisor 'had no control over my decision to sell or not sell clove cigarettes at the store.' (Cislaw, supra, 4 Cal.App.4th at 1293-1294.) Nor are the facts like those in Nichols v. Arthur Murray, Inc. (1967) 248 Cal.App.2d 610, where the court concluded that a franchisor was liable because the 'franchisor retained complete control over most areas of the business, and deprived the franchisee of any independence in managing the 'day to day details of [its] operation.'' (Patterson, supra, 60 Cal.4th at 493 [examining Nichols].) Here, the complaint alleges that the injuries resulted from a slippery surface caused by a defective air conditioning unit. The Franchise Agreement appears to contemplate inspections related to facilities and provides RWI with the ability to require 'Minor Renovations' which include repairs. There is evidence that at least in 2018, RWI specifically ordered renovations such as repairing or altering locks, drapes, lighting, doors, and deck tiles. (ROA 48, Ex. A, Schedule D.) RWI also required that 'all facilities are functional having addressed all conditional deficiencies[.]' (Ibid.) This demonstrates some level of control over the maintenance of the hotel. Further, unlike Cislaw, there is no evidence submitted from the franchisee (NVA, LLC) taking full and complete responsibility, only a declaration from an RWI employee and the Defendants' attorney. At the same time, the Franchise Agreement has clear language leaving day-to-day operations to NVA, LLC and stating the parties' intention that NVA, LLC was to be an independent contractor. (E.g., id., Ex. A, § 16.1.) The court will hear from the parties as to whether the RWI's level of control, on the evidence before the court, conclusively entitles RWI to judgment such that 'no more is called for.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) Calendar No.: Event ID: TENTATIVE RULINGS

3091766 3