Cho v. CKE Restaurants Holdings CA2/3 ( 2022 )

Filed 4/27/22 Cho v. CKE Restaurants Holdings CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
MIN SUN CHO, B310704
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC654003)
v.
CKE RESTAURANTS HOLDINGS,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mel Red Recana, Judge. Affirmed.
Min Sun Cho in pro. per., for Plaintiff and Appellant.
FordHarrison, John P. Schaedel and Jenny S. Choi for
Defendant and Respondent.
_________________________
Plaintiff Min Sun Cho (Cho) appeals from a summary
judgment in favor of defendant CKE Restaurants Holdings, Inc.
d/b/a Carl’s Jr. Restaurant (CKE). We conclude Cho fails to
demonstrate that the trial court erred in granting summary
judgment, and thus we will affirm.
BACKGROUND
Cho filed the present action against CKE in March 2017
and filed the operative first amended complaint (complaint) in
May 2019. The complaint alleged that in about August 2015, Cho
moved into an apartment next door to a Carl’s Jr. Restaurant
(restaurant). At CKE’s direction, trash was collected from the
restaurant every morning between 4:00 and 6:00 a.m., disrupting
Cho’s sleep and causing a deterioration of his physical and
psychological health. Cho notified CKE of the problem, but it
refused to have the restaurant’s trash collected at a different
time. Cho alleged that these practices gave rise to causes of
action for nuisance and intentional and negligent infliction of
emotional distress.
CKE moved for summary judgment. It asserted that it had
contracted with Omega Waste Management (Omega) for trash
pickup; Omega subcontracted with Haul-Away Rubbish Company
(Haul-Away), whose trucks collected the restaurant’s trash daily.
Through the declarations of its employees, CKE asserted that it
had no involvement with the scheduling or dispatching of Haul-
Away’s trash trucks; Cho was the only person who ever made a
noise complaint concerning trash collection at the restaurant; and
CKE acted reasonably to address the alleged problem once it
received Cho’s complaint in late March 2016. CKE thus urged
that it did not owe Cho a duty, it did not breach any duty, and
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there was no causation between CKE’s conduct and Cho’s alleged
harm.
Cho opposed the motion. He contended that CKE was
liable for the torts of its independent contractor, Haul-Away;
CKE was negligent in selecting, instructing, and supervising
Haul-Away; the harm to Cho was foreseeable; and CKE had a
nondelegable duty to Cho not to contract for garbage collection in
the early morning hours.
The trial court granted CKE’s motion for summary
judgment. It explained that a defendant generally is not liable
for the acts of its independent contractors unless the defendant’s
own involvement or negligence contributed to an injury. In the
present case, the court found that Cho failed to provide any
evidence that CKE contributed to Cho’s alleged injury—
specifically, Cho presented no evidence that CKE had any
involvement in the scheduling and dispatching of the garbage
trucks, that CKE was negligent in contracting with Omega, or
that CKE had any right to or exercised any control over Haul-
Away’s conduct or operations. Cho also failed to establish that
CKE had a nondelegable duty because it did not plead the
nondelegable duty doctrine, did not establish the elements of a
nondelegable duty, and provided little or no discussion or
authority on the issue. Thus, Cho failed to establish triable
issues as to any of his causes of action.
The trial court entered judgment on December 7, 2020.
Cho timely appealed.
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DISCUSSION
A motion for summary judgment is properly granted if
“there is no triable issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” (Code
Civ. Proc., § 437c, subd. (c).) A motion for summary judgment is
properly granted if the moving party has shown “that there is no
triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Ibid.) A moving
defendant establishes that it is entitled to judgment as a matter
of law by demonstrating that the action has no merit—that is,
that one or more elements of a cause of action cannot be
established or there is a complete defense to that cause of action.
(Ibid.) Once the defendant has met that burden, the burden
shifts to the plaintiff to show that a triable issue of one or more
material facts exists as to that cause of action. (Id., subd. (o)(2).)
We review a grant of summary judgment de novo, without
deferring to the trial court’s decision. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 860.) Nonetheless,
“ ‘[p]erhaps the most fundamental rule of appellate law is that
the judgment challenged on appeal is presumed correct, and it is
the appellant’s burden to affirmatively demonstrate error.’
[Citation.] ‘ “We must indulge in every presumption to uphold a
judgment, and it is defendant’s burden on appeal to affirmatively
demonstrate error—it will not be presumed.” ’ ” (People v.
Sullivan (2007) 151 Cal.App.4th 524, 549; see People v. Chubbuck
(2019) 43 Cal.App.5th 1, 12.) Thus, although we independently
consider whether summary judgment was properly granted, “ ‘ “it
is the appellant’s responsibility to affirmatively demonstrate
error,” ’ and ‘review is limited to issues adequately raised and
supported in the appellant’s brief.’ (Christoff v. Union Pacific
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Railroad Co. (2005) 134 Cal.App.4th 118, 125–126.)” (Vasquez v.
Department of Pesticide Regulation (2021) 68 Cal.App.5th 672,
685; see also Meridian Financial Services, Inc. v. Phan (2021)
67 Cal.App.5th 657, 708 [burden is on appellant to demonstrate
error, even on de novo review].) Failure to demonstrate error—
that is, to support any claim of error with reasoned argument,
analysis, and citation to pertinent legal authorities—forfeits the
issue on appeal. (People v. Clayburg (2012) 211 Cal.App.4th 86,
93 [failure to present “reasoned argument and analysis” forfeits
issue on appeal]; People v. Sorden (2021) 65 Cal.App.5th 582, 603
[“failure to present reasoned argument and legal authorities in
support” of a claim of error forfeits issue on appeal].)
Cho’s briefing is difficult to understand and fails to set
forth cogent legal arguments. We are mindful that Cho is
appearing in propria persona; however, “[a] self-represented
party is to be treated like any other party and is entitled to the
same, but no greater, consideration than other litigants having
attorneys.” (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570,
574.) Thus, Cho “is not exempt from the rules governing
appeals,” including the rules governing preparation of an
adequate appellate record and presenting legal arguments
supported by citations to relevant legal authority. (Ibid.; see
Flores v. Department of Corrections & Rehabilitation (2014)
224 Cal.App.4th 199, 205 [“The same rules apply to a party
appearing in propria persona as to any other party.”].)
Cho’s central contention appears to be that there were
triable issues of fact as to whether CKE had “control” over Haul-
Away’s operations, and specifically whether CKE had the ability
to control the time at which Haul-Away collected trash from the
restaurant. However, although Cho’s appellate briefs include
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some limited citations to legal authority, he fails to demonstrate
that the authorities on which he is relying are relevant to the
issues that he is attempting to raise. Specifically, Cho does not
cite any legal authority for the proposition that control is relevant
to, or dispositive of, each of the causes of action asserted in his
first amended complaint—that is, if there are triable issues
concerning control, then the trial court erred in summarily
adjudicating those claims. As such, Cho has failed to satisfy his
appellate burden to demonstrate error, and therefore we will
affirm the judgment.
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DISPOSITION
The judgment is affirmed. CKE is awarded its appellate
costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
LIPNER, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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