Defendants Jagjeet S. Kapoor, Stop ‘N’ Save, Inc. and Bonfare Markets, Inc.’s (collectively, “Defendants”) move for summary judgment, or in the alternative, summary adjudication against plaintiffs Baljinder Singh and Rajinder Kaur (collectively, “Singh”) and Trivender Kumar and Kavita Sharma (collectively, “Kumar”).

Singh’s Motion

Singh’s request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d).)

The Court declines to rule on Defendants’ evidentiary objections as no proposed order has been submitted in compliance with California Rules of Court, rule 3.1354(c).

Defendants’ motion for summary judgment against Singh is DENIED.

Defendants’ alternative motion for summary adjudication of the first cause of action (Violations of California Labor Laws) is DENIED. Generally, “[w]hether a person is an employee or an independent contractor is ordinarily a question of fact.,” however, “if from all the facts only one inference may be drawn it is a question of law.” (Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1082.) Defendants fail to demonstrate, especially in light of the allegations of substantial control pleaded by Singh, that the only inference which can be drawn from the facts before the Court is that Singh were independent contractors and not employees. In the franchise context, an employer-employee relationship exists between the franchisor and franchisee where the franchisor exercises “control beyond that necessary to protect and maintain its interest in its trademark, trade name and goodwill.” (See Juarez v. Jani-King of California, Inc. (2011) 273 F.R.D. 571, 583; see also Cislaw v. Southland Corp. (1992) 4 Cal.App.4th 1284, 1296.) Since Defendants have failed to meet their initial burden, the burden does not shift to Singh to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the second cause of action (Violations of Unfair Business Practices Act) is DENIED. Neither of the arguments asserted by Defendants are persuasive. First, it is not clear that Singh’s assertion that they were employees is erroneous (see above), and second, Singh alleges that Defendants engaged in the wrongful conduct complained of in the four years prior to the filing of the instant action and not only in 2005, as Defendants assert. (See Third Amended Complaint (“TAC”) at ¶ 20.) Consequently, even if conduct which occurred in 2005 is time-barred and therefore not actionable, Defendants have not demonstrated that this cause of action is time-barred in its entirety and thus that Singh cannot establish this claim. Consequently, the burden does not shift to Singh to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)
Defendants’ alternative motion for summary adjudication of the third (Violations of Unfair Business Practices Act) and fourth (Violations of Unfair Business Practices Act) causes of action is DENIED. The acts upon which these claims are predicated are not alleged to have happened only once but to have continued over the course of Singh’s ownership of the franchise. It is long-settled that “separate, recurring invasions of the same right can each trigger their own statute of limitations.” (Aryeh v. Canon Business Solutions, Inc. (2013)55 Cal.4th 1185, 1197-1198.) With this precept in mind, Defendants fail to demonstrate that these claims are time-barred in their entirety and thus that Singh cannot establish these claims. Consequently, the burden does not shift to Singh to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the fifth cause of action (Violations of California Franchise Relations Act) is GRANTED. The judgment for possession in the unlawful detainer proceeding of May 2011 established a non-curable default under Business & Professions Code section 20021 as a matter of law. (See UMF 10-12.) Consequently, Defendants have established that good cause was not necessary in order for them to terminate the Franchise Agreement and thus Singh cannot establish all of the elements of their claim. Singh fails to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the sixth cause of action (Breach of Contract) is DENIED. Defendants fail to demonstrate that this cause of action is time-barred in its entirety and thus that Singh cannot establish this claim. Consequently, the burden does not shift to Singh to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the seventh cause of action (Violations of California Franchise Investment Law) is GRANTED. The Court finds persuasive Defendants’ contention that this claim fails as a matter of law because the California Franchise Investment Law (the “CFIL”) imposes liability for disclosure or material omissions in relation to an individual acquiring a franchise (see Corp. Code §§ 31001 and 31119); however, the allegations of the seventh cause of action do not relate to purported disclosures made to Singh that were in connection with their purchase of the franchise.

Defendants’ alternative motion for summary adjudication of the eighth cause of action (Violations of California Franchise Investment Law) is GRANTED. Defendants have submitted evidence which demonstrates that this particular claim is time-barred. The longest limitations period for the violations of the California Franchise Investment Law upon which this cause of action is predicated is two years; this period begins to run when the act or of transaction constituting the violation takes place. (See Corp. Code, § 31304; see also People ex rel. Dept. of Corps. V. SpeeDee Oil Change Systems, Inc. (2002) 95 Cal.App.4th 709, 726-727.) It is undisputed that Singh entered into the Franchise Agreement with Stop ‘N’ Save on February 25, 2005, thus any violations relating to the failure to provide an offering and misrepresentations or omissions of fact relating to the sale of the franchise would have taken place at that time. (UMF 3.) However, Singh did not file suit until June 8, 2011, well beyond two years later. Singh fails to present any argument which defeats the clear running of the statute or evidence which raises a triable issue of material fact with regard to the accrual of this claim.

Defendants’ alternative motion for summary adjudication of the ninth (Fraud) and tenth (Fraud) causes of action is DENIED. Defendants fail to demonstrate that these causes of action are time-barred in their entirety and thus that Singh cannot establish these claims. Consequently, the burden does not shift to Singh to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the eleventh cause of action (Conversion) is DENIED. This claim is predicated on not only on Singh’s loss of the store premises, but also Defendants’ alleged retention of approximately $35,000 of inventory. (See TAC at ¶¶ 53 and 100-105.) The doctrine of res judicata preclude parties or their privies only from re-litigating issues that have been actually litigated in a prior proceeding. (See Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481.) Defendants present no evidence that the issue of possession of the inventory located in the store on the day was previously adjudicated. Further, Defendants’ reliance on the litigation privilege is misplaced; the filing of the unlawful detainer, which is protected conduct, did not give rise to the eleventh cause of action.

Kumar’s Motion

Kumar’s request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d).)

The Court declines to rule on Defendants’ evidentiary objections as no proposed order has been submitted in compliance with California Rules of Court, rule 3.1354(c).

Defendants’ motion for summary judgment against Kumar is DENIED.

Defendants’ alternative motion for summary adjudication of the first cause of action (Violations of California Labor Laws) is DENIED. Defendants fail to demonstrate, especially in light of the allegations of substantial control pleaded by Kumar, that the only inference which can be drawn from the facts before the Court is that Kumar were independent contractors and not employees. (See Juarez v. Jani-King of California, Inc., supra, 273 F.R.D. at 583; see also Cislaw v. Southland Corp., supra, 4 Cal.App.4th at 1296.) Since Defendants have failed to meet their initial burden, the burden does not shift to Kumar to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the second cause of action (Violations of Unfair Business Practices Act) is DENIED. Neither of the arguments asserted by Defendants are persuasive. First, it is not clear that Kumar’s assertion that they were employees is erroneous (see above), and second, Kumar alleges that Defendants engaged in the wrongful conduct complained of in the four years prior to the filing of the instant action and not only in 2001, as Defendants assert. (See TAC at ¶ 20.) Consequently, even if conduct which occurred in 2005 is time-barred and therefore not actionable, Defendants have not demonstrated that this cause of action is time-barred in its entirety and thus that Kumar cannot establish this claim. Consequently, the burden does not shift to Kumar to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the twelfth cause of action (Violations of Unfair Business Practices Act) is DENIED. While it is true, as Defendants assert, that number of the wrongful acts upon which this claim is predicated took place in 2001 and 2002 and thus fall outside of the statute of limitations, there are other acts alleged which Defendants not only do not address but for which it is not clear when these acts took place. (See TAC at ¶ 123.) Defendants fail to demonstrate that this cause of action is time-barred in its entirety and thus that Kumar cannot establish this claim. Consequently, the burden does not shift to Kumar to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the thirteenth cause of action (Violations of California Franchise Relations Act) is GRANTED. As Defendants assert, this claim fails as a matter of law. The Lease and Franchise Agreement terminated by their own terms and therefore the good cause requirement for lease termination prior to its expiration provided by Business & Professions Code section 20020 did not apply. (UMF 7-9.)

Defendants’ alternative motion for summary adjudication of the fourteenth cause of action (Violations of California Franchise Investment Law) is GRANTED. Defendants have submitted evidence which demonstrates that this particular claim is time-barred. The longest limitations period for the violations of the California Franchise Investment Law upon which this cause of action is predicated is two years; this period begins to run when the act or of transaction constituting the violation takes place. (See Corp. Code, § 31304; see also People ex rel. Dept. of Corps. V. SpeeDee Oil Change Systems, Inc. (2002) 95 Cal.App.4th 709, 726-727.) It is undisputed that Kumar entered into the Franchise Agreement with Bonfare on November 21, 2001; thus, any violations relating to the failure to provide an offering and misrepresentations or omissions of fact relating to the sale of the franchise would have taken place at that time. (UMF 2.) However, Kumar did not file suit until June 8, 2011, well beyond two years later. Kumar fails to present any argument which defeats the clear running of the statute or evidence which raises a triable issue of material fact with regard to the accrual of this claim.

Defendants’ alternative motion for summary adjudication of the fifteenth cause of action (Breach of Contract) is DENIED. Defendants fail to demonstrate that this cause of action is time-barred in its entirety and thus that Kumar cannot establish this claim. The harsh rule of accrual on a breach of contract claim is avoided where a promise can be construed as continuing so that each failure to perform results in a new breach, giving rise to a new cause of action. (See McGrath v. Butte (1939) 30 Cal.App.2d 734, 736.) Kumar alleges purported breaches which were continuing and occurred in the four years prior to the filing of their action. (See TAC at ¶ 147.) Consequently, the burden does not shift to Kumar to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the sixteenth cause of action (Fraud) is DENIED. Defendants fail to demonstrate that this cause of action is time-barred in its entirety and thus that Kumar cannot establish this claim. Consequently, the burden does not shift to Kumar to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the seventeenth cause of action (Violations of Unfair Business Practices Act) is DENIED. The acts upon which these claims are predicated are not alleged to have happened only once but to have continued over the course of Kumar’s ownership of the franchise. It is long-settled that “separate, recurring invasions of the same right can each trigger their own statute of limitations.” (Aryeh v. Canon Business Solutions, Inc., supra, 55 Cal.4th at 1197-1198.) With this precept in mind, Defendants fail to demonstrate that this claim is time-barred in its entirety and thus that Kumar cannot establish this claim. Consequently, the burden does not shift to Kumar to raise a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Defendants’ alternative motion for summary adjudication of the eighteenth cause of action (Unfair Competition) is GRANTED. Defendants demonstrate the Kumar lacks evidence demonstrating a conspiracy between them and Care-Mark, Inc. to compel their franchisees, such as Kumar, to purchase products from Care-Mark under the threat of franchise termination in exchange for the receipt of secret payments or allowances. (UMF 50.) Kumar does to dispute this fact and therefore fails to raise a triable issue.