Thomas v. Denny's CA1/3

Opinion

Filed 8/17/26 Thomas v. Denny’s CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CAROL THOMAS, Plaintiff and Appellant,

A172781

v. DENNY’S, INC., (County of San Mateo Super. Ct. No. 23CIV02316)

Defendant and Respondent.

Carol Thomas (plaintiff) filed the underlying action to recover damages for a personal injury allegedly inflicted by an employee of a Denny’s restaurant. Denny’s Inc. (defendant) moved for summary judgment, contending the undisputed facts establish that it is not liable to plaintiff. The trial court granted the unopposed motion, finding defendant carried its burden of proof as the party moving for summary judgment. (Civ. Proc. Code, § 437c, subd. (o)(2); all statutory references are to this code.) We affirm.

BACKGROUND

Plaintiff’s Complaint Plaintiff filed her lawsuit against defendant in May 2023. Using a judicial council form approved for making a breach of contract claim, plaintiff sought $4,000,000 in damages. An attachment to the complaint indicates plaintiff intended to state a cause of action for personal injury arising from

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an alleged assault by an employee of a Denny’s restaurant located in South San Francisco (the restaurant). In her attachment, plaintiff alleged the following facts: Plaintiff is a “Black American citizen” who entered the restaurant as a customer, asked to be seated, and was assaulted by a “Mexican male” employee (Diaz). Diaz allegedly bit plaintiff’s hand and broke her middle finger because he did not want to seat an African American in the dining room. Moreover, plaintiff alleged, “Denny’s has a history of mistreatment to Black customers.”

In June 2023, plaintiff filed a declaration suggesting that she was attempting to state a cause of action for racial discrimination. Plaintiff stated, among other things, that she is a member of “a racially protected class”; defendant “has a long-known history of practicing racism . . . when African Americans patronize their establishment”; and Diaz discriminated against her by “not wanting to be of service,” which was “a routine practice for all Denny’s collectively.” Defendant’s Summary Judgment Motion On September 12, 2024, defendant moved for summary judgment on the grounds that it was entitled to judgment as a matter of law because there was no basis for holding defendant directly or vicariously liable for the alleged assault/battery; there was no evidence defendant violated anti- discrimination provisions of the Unruh Civil Rights Act; and defendant did not ratify the conduct of Diaz or of the owner of the franchise where the alleged assault occurred.

Defendant’s evidence in support of its motion included a declaration from its assistant general counsel regarding its relationship with franchise owners, including the owner of the franchise were the assault allegedly

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occurred. Defendant also filed a detailed separate statement of material undisputed facts in support of its motion.

According to defendant’s separate statement, the following facts are undisputed: The restaurant where the assault occurred is owned and operated by RKJD Investment Group Ltd. (RKJD), which is a separate legal entity from defendant. RKJD makes all decisions with respect to hiring and supervision of its employees and is solely responsible for day-to-day operations at the restaurant, including the performance of its employees. RKJD employees are not employed by defendant, defendant does not control RKJD’s personnel matters, and RKJD is solely responsible for training and supervising its employees with respect to daily operations. Defendant did not hire or employ Diaz, nor did it assume responsibility for training him; Diaz was an employee of RJKD. Matters pertaining to safety and security at the restaurant are solely the responsibility of RKJD, and defendant has no legal interest in the property where the restaurant is located.

To the extent plaintiff alleged a cause of action for discrimination, defendant asserted the following as undisputed facts: Defendant has a “strict policy of non-discrimination”; it does not discriminate on the basis of race, color or ethnicity and is committed to maintaining a harassment free environment for customers. Defendant advises franchisees that it is a best practice to maintain a harassment free workplace, and defendant encourages them to provide a harassment-free environment, but it does not establish discrimination or harassment policies on behalf of its franchisees. Nor does defendant have authority to control whether a franchisee or its employee comply with defendant’s anti-discrimination policy.

A hearing on the summary judgment motion was set for December 24, 2024. Plaintiff did not file opposition or any response to the motion.

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The Trial Court’s Order and Judgment Neither party appeared at the December 24, 2024 hearing. According to the court’s minute order, on December 22, plaintiff had sent an email to the court and defendant requesting a continuance. Therefore, the court continued the hearing until January 7, 2025, solely for oral argument, without changing the date the moving papers, opposition and reply were due. The court requested the superior court clerk to provide notice of the continued hearing date, and to incorporate the court’s tentative ruling into its minute order.

The tentative ruling was to grant defendant’s unopposed motion. The court explained that because the alleged assault was committed by an employee of a franchisee, plaintiff would have to prove defendant was vicariously liable for Diaz’s conduct based on a showing that defendant controlled such factors as hiring, supervision and day-to-day workplace behavior of employees of the franchisee. (Citing Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474 (Patterson).) The summary judgment evidence showed, however, that the restaurant was owned by RKJD, and that defendant did not exercise or retain control over RKJD employees, nor did it own the property. In particular, the court found, defendant proffered evidence that it did not “train, hire, or otherwise take on any responsibilities with respect to Diaz,” or ratify any of the alleged conduct. Ultimately, the court concluded that defendant’s evidence was sufficient to carry its burden to show that plaintiff could not establish a cause of action against defendant, thus shifting the burden to plaintiff to raise a triable issue of material fact, which she failed to do. In addition, the court found that defendant met its ultimate burden of persuasion, establishing defendant was entitled to judgment as a matter of law.

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Defendant’s counsel appeared at the continued hearing on January 7, 2025 “in an abundance of caution” to inform the court defendant did not contest the tentative ruling. Plaintiff did not appear at the hearing, and the court received no notice of a contest to the tentative ruling. The court adopted the tentative as its order and granted defendant summary judgment. On January 8, defendant served plaintiff with notice of the court’s ruling.

On January 14, plaintiff filed an apparent objection to the court’s decision to continue the original summary judgment hearing date. According to that filing, plaintiff had informed the court she was unable to attend the December 24 hearing due to health issues, but she had not requested a continuance.1 Plaintiff also complained that the court did not email notice of the continued date, nor did the parties meet and confer about it. Plaintiff complained further that she received “not more than ten days’ notice” of the rescheduled date, whereas she believed she was entitled to between 18 and 20 days’ notice.

On January 15, 2025, the court issued a written order granting defendant summary judgment, which again incorporated its tentative ruling. The court also noted that it had considered plaintiff’s January 14 filing; the court observed that the summary judgment hearing was continued at plaintiff’s request, and that there was no need to provide statutory notice of the new date, although the clerk sent such notice as a courtesy. Judgment was entered on January 15, 2025.

1 The record contains a handwritten document that plaintiff apparently wrote on or around November 23, 2024, and attempted to file the following January. The document stated that plaintiff would not attend the December 24 hearing because she had been attacked and injured by a “Mexican Female Tour Bus Driver.”

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DISCUSSION

We affirm the judgment on grounds both procedural and substantive. First with regard to the procedural shortcomings of appellant’s appellate briefing, we must apply the settled principle that an order or judgment of the trial court “ ‘is presumed correct.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “ ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Ibid.) It means that the burden is on plaintiff to articulate claims of reversible error and “present argument and authority on each point made.” (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591.) Indeed, issues in an appellant’s opening brief that are not properly presented or sufficiently developed to be cognizable may be deemed waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; see also Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050 [appellate court “ ‘not required to make an independent, unassisted study of the record in search of error’ ”].)

In the present case, plaintiff’s opening brief does not articulate a claim of reversible error, and she elected not to file a reply brief. Most of the opening brief consists of a statement of facts that pertains to matters unrelated to plaintiff’s claim against this defendant and is unsupported by any evidence in this record. In the very short argument section of her brief, plaintiff states that there “was no chance given to argue” this matter in the trial court. It is not clear whether plaintiff is arguing that the original hearing date for the summary judgment motion should not have been changed or that the hearing should have been continued for a longer period.

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Either way, plaintiff’s contention is unsupported by citations to this record or to legal authority.

Relatedly, plaintiff fails to comply with settled rules governing the content of an appellate brief, which is not excused by the fact that she is representing herself. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.) Plaintiff’s opening brief fails to “[p]rovide a summary of the significant facts limited to matters in the record” (Cal. Rules of Court, rule 8.204(a)(2)(C)), nor does she “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears” (id., rule 8.204(a)(1)(C)). Deficiencies of this nature are a sufficient basis to conclude that plaintiff has waived any claim of error she might otherwise have. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 952.)

As a second independent basis for affirmance, we address the substance of the underlying dispute and conclude summary judgment was properly granted on this record. As the trial court found, defendant carried its initial burden of showing that plaintiff could not establish a cause of action against it: plaintiff did not allege that defendant itself committed the injurious act; and defendant proffered evidence that it was not vicariously liable for the assault as it did not own the restaurant that employed Diaz or retain or assume control over the workplace behavior of the franchisee’s employees. (See Patterson, supra, 60 Cal.4th at pp. 497–498.) Thus the burden shifted to plaintiff to produce evidence raising a triable issue of material fact. (§ 437c, subd. (p)(2).) However, plaintiff elected not to file any evidence or opposition to the motion.

Section 437c, subdivisions (b)(2) and (b)(3) require that a party opposing summary judgment must offer contrary evidence or arguments

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accompanied by a separate statement responding to defendant’s statement of undisputed material facts. “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (§ 437c, subd. (b)(3).) We acknowledge that granting summary judgment based solely on an opposing party’s deficient separate statement without affording an opportunity to correct procedural defects may constitute an abuse of the trial court’s discretion under section 437c, subdivision (b). (See, e.g., Parkview Villas Assn., Inc. v. 1197 State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197; compare with Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820 [court did not abuse its discretion by denying continuance to correct substantive defects in opposing party’s separate statement].) But in this case, plaintiff did not just fail to comply with the statutory procedure for opposing a motion for summary judgment; she elected not to file any evidence or written opposition to the motion at all. Such “a conscious and fundamental choice to fail to respond substantively and on the merits” to a motion for summary judgment “warrant[s] the court’s grant of summary judgment.” (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 961.)

Defendant takes the position that plaintiff’s failure to file a separate statement opposing summary judgment compels us to affirm the judgment without any consideration of the merits of defendant’s motion. (Citing Blackman v. Burrows (1987) 193 Cal.App.3d 889, 893.) We reject this argument. Summary judgment is properly granted when the moving party has met its initial burden of establishing a prima facie case and the opposing party has failed to file a proper separate statement as required by section 473c, subdivision (b). (See, e.g., Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1083; Kojababian v. Genuine Home Loans, Inc. (2009) 174

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Cal.App.4th 408, 417–420; Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 171 [collecting cases].) Consistent with this authority, the trial court properly resolved defendant’s motion on the merits, notwithstanding plaintiff’s complete failure to file any evidence or argument opposing the motion; the court concluded, based on its review of the evidence, that defendant had carried its ultimate burden of establishing it was entitled to judgment as a matter of law.

DISPOSITION

The judgment is affirmed. In the interests of justice, each party is to bear its own costs.

TUCHER, P. J.

WE CONCUR:

PETROU, J. RODRÍGUEZ, J.

Thomas v. Denny’s, Inc. (A172781)