Lipson v. Motel 6 Ridgecrest CA5

Filed 11/10/26 Lipson v. Motel 6 Ridgecrest CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT JONATHAN LIPSON, F088550 Plaintiff and Appellant, (Super. Ct. No. BCV-20-103026) v. MOTEL 6 RIDGECREST et al., OPINION Defendants and Respondents. APPEAL from a judgment of the Superior Court of Kern County. Gregory A. Pulskamp, Judge. Law Offices of Ilan N. Rosen Janfaza, Ilan N. Rosen Janfaza and Mark Richard Berns for Plaintiff and Appellant. Reed Smith and Kathryn M. Bayes for Defendants and Respondents. -ooOoo-  Plaintiff and appellant Jonathan Lipson appeals from a judgment entered in favor of defendant and respondent G6 Hospitality LLC (G6) after the trial court granted G6’s motion for summary judgment. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND I. The Complaint On December 29, 2020, Lipson filed a complaint for damages against G6 and other named defendants alleging he was injured “as a result of bedbug bites during his stay” at Motel 6 Ridgecrest (subject hotel) located at 535 S China Lake Boulevard in Ridgecrest (subject hotel property). Lipson alleges that G6 “is the parent corporation that owns, operates, manages, and does business as the Motel 6, located at 1473 Holiday Ln., Fairfield ….” Other named defendants include the subject hotel, Travelodge by Wyndham Ridgecrest, Wyndham Worldwide Corporation, Wyndham Destinations, Inc., Mark Doe, and Does 1 through 20. In the body of his complaint, Lipson identified Super 8 by Wyndham Selma/Fresno as another defendant. And, on September 19, 2023, Lipson filed an amendment to his complaint to substitute K.T.M.A. Inc., as DOE 1. The following facts are alleged in Lipson’s complaint: “Cimex lectularius, more commonly known as ‘bed bugs,’ are ‘small, flat, parasitic insects that feed solely on the blood of people and animals while they sleep”; and bedbug infestation has been “spreading rapidly to parts of the United States.’ ” According to the Centers for Disease Control and Prevention, “ ‘some people may have no reaction [to bedbug bites] and will not develop bite marks or any other visible signs of being bitten,’ ” whereas other people “ ‘may be allergic to the bed bugs and can react adversely to the bites.’ ” “ ‘These 2. allergic symptoms can include enlarged bite marks, painful swellings at the bite site, and, on rare occasions, anaphylaxis.’ ” Lipson checked into room 131 at the subject hotel on January 3, 2019, and checked out the following morning. During his breakfast, Lipson “began to experience an intense itching sensation all over his body.” Later that morning, he went for a walk with friends, but “by 1:00 p.m., [he] was unable to walk any further with them, as the itching sensation worsened and became painful when rubbing against his clothes.” The next day, Lipson discovered bumps “all over his body, including on his face,” and reported the incident to management at the subject hotel. The manager, identified as “Mark Doe” (some capitalization omitted), apologized, offered Lipson a free room, and “told [Lipson] that he would spray the mattress himself.” Lipson suggested a professional be hired to address the problem and requested Mark Doe send him a report on their efforts, but Lipson never heard from Mark Doe. On or about January 10, 2019, Lipson sought treatment at an urgent care facility and “was informed that the insect bites appeared to be bed bug bites and was prescribed medication.” Lipson sought further medical attention after his urgent care visit. Lipson was physically and emotionally scarred from the bedbug bites and has “difficulty sleeping through the night as a result of the incident.” He “wakes up in the middle of the night thinking that bugs are crawling on him when there are none.” Lipson never observed bedbugs at his own residence and never received bedbug bites at his residence. “As a result of the incident, [Lipson] incurred various expenses, including medical costs, the cost of the [subject] hotel room, the replacement cost of [his] luggage and clothing, along with other belongings exposed to the infestation …, and other costs.” According to Lipson, the subject hotel “has a prior and/or ongoing history of bedbug infestations” and related customer complaints. He alleges the defendants knew of the problem, willfully ignored the problem, willfully or negligently failed to advise him of the problem, and “deliberately and recklessly chose not to inspect or otherwise ensure 3. that [his] room was free of” bedbugs. Lipson alleges the defendants instituted (or ratified) routine and shoddy housekeeping practices that permitted the bedbug infestation to continue. Lipson alleges causes of action against all defendants for battery, negligence, intentional infliction of emotional distress, fraudulent concealment, and public nuisance. II. G6’s Motion for Summary Judgment On March 27, 2024, G6 and the subject hotel filed a joint motion for summary judgment seeking judgment in favor of G6 on the grounds that (1) “G6 did not own, control, operate, or manage, the Property where the alleged incident occurred”; and (2) “G6 did not have control over the business operations of its franchisee, Defendant K.T.M.A.[] Inc.[,] with respect to operating the Property, and as such are not liable for any negligent actions of K.T.M.A.[] Inc.” Lipson opposed the motion and filed evidentiary objections to evidence proffered by G6. Thereafter, G6 and the subject hotel filed their reply in support of the motion for summary judgment and requested the trial court take judicial notice of specified documents. On June 27, 2024, the trial court heard G6’s motion for summary judgment. The trial court granted G6’s request to judicially notice three deeds of trust related to the subject hotel property and a May 22, 2024 minute order of the court entered in connection with a discovery motion brought by G6 (the May 22 discovery order). In the May 22 discovery order, the court “deem[ed] admitted the matters at issue in [G6’s] requests for admission.” Pursuant to the parties’ respective requests and subject to limits discussed in People v. Harbolt (1997) 61 Cal.App.4th 123, 126–127, 1 the court also took 1 “Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached— in the documents such as orders, statements of decision, and judgments—but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’ ” (People v. Harbolt, supra, 61 Cal.App.4th at pp. 126–127.) 4. judicial notice of G6’s requests for admission and G6 and the subject hotel’s joint answer and affirmative defenses. The court overruled Lipson’s evidentiary objections. The trial court determined the evidence submitted in connection with the motion “demonstrates that G6 … neither owns, manages or controls the [subject hotel] property …, nor does it manage the day-to-day operations of K.T.M.A. LLC, [sic] franchisee and the current owner of the [subject hotel] property.” The court granted the motion as to G6 but denied the motion as to the subject hotel. 2 On July 3, 2024, the trial court entered its “Order Granting in Part and Denying in Part Defendants G6 … and [the subject hotel]’s Motion for Summary Judgment.” (Some capitalization omitted.) In the order, the court granted judgment in favor of G6. III. Notice of Appeal On August 26, 2024, Lipson timely filed a notice of appeal. DISCUSSION I. Standard of Review “Appellate courts determine de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. [Citation.] Upon review, the appellate court applies the same three-step analysis as the trial court. [Citation.] This requires the court to (1) identify the issues framed by the pleadings, (2) determine whether the moving party has established facts justifying judgment in its favor, and (3) determine whether the nonmoving party has demonstrated a triable issue of material fact. [Citation.] In conducting its review, the appellate court must, ‘view the evidence in a light favorable to plaintiff as the losing party.’ [Citation.] Under the three-step analysis, the moving party bears the initial burden of showing there 2 Although the motion was brought by both G6 and the subject hotel, the notice of motion appears to indicate that summary judgment or summary adjudication was sought only as to G6. In any event, the appeal does not raise any issue concerning the trial court’s denial of the motion as to the subject hotel. 5. is no genuine dispute of material fact and that it is entitled to judgment as a matter of law. [Citation.] Typically, to meet this burden, a defendant moving for summary judgment can either negate an element of the cause of action or demonstrate a complete defense to plaintiff’s claim. [Citation.] Only if the defendant meets its initial burden does the burden shift to the plaintiff to show a triable issue exists.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1206–1207.) II. Lipson’s Contentions on Appeal On appeal, Lipson contends G6 did not meet its burden on summary judgment. Lipson further contends the court erred by “consider[ing] inadmissible evidence, accept[ing] deemed admissions as dispositive, and disregard[ing] triable issues concerning G6’s retained control over its franchise.” Lipson contends triable issues of material fact remain. III. G6’s Evidence in Support of its Summary Judgment Motion A. Declaration of Rhonda Payne Rhonda Payne submitted a declaration in support of G6’s motion for summary judgment. In her declaration, Payne averred as follows: Payne is the director of franchise administration for G6. As a result of her job duties, she is “familiar with the ordinary and customary method and matter [sic] of preparation and maintenance of G6’s business records”; has “come to know the policies, practices, and procedures of G6 as a hospitality provider under the brand name Motel 6”; and has “full access to the records of G6, including the imaging repository.” “In the ordinary course of its business, G6 maintains of [sic] properties it has sold and properties which are owned, controlled, operated, and managed by Franchisees utilizing the Motel 6 brand.” Payne averred that the records she referred to or relied upon in her declaration “are the business records of G6 … taken or made in the regular or ordinary course of business, at or near the time of the act, condition or event to which they relate, by persons employed by G6, and/or its predecessors and/or agents, who had a business duty to 6. accurately and completely take, make and maintain such records and documents. These documents are trustworthy based on the source of information and method of preparation, and all copies attached as exhibits are true copies of the records as they are kept by G6.” Payne stated she reviewed G6’s records relating to the subject hotel property, “its sale, and its ownership by a Motel 6 franchisee.” She also “reviewed G6’s records relating to the [subject hotel property] and any bed bug issues that existed at the time G6 owned the [subject hotel property] in 2015.” Payne averred the subject hotel property “was originally obtained on May 5, 1975 by Motel 6” and attached a grant deed dated September 25, 1975 (the 1975 Grant Deed) that stated, “Quadrant Development Company, a general partnership [¶] hereby grant(s) to [¶] Motel ‘6’, Inc., a Delaware corporation [¶] the following real property in the [¶] County of Kern, State of California: [¶] as more particularly described on the description attached hereto and made a part hereof marked Exhibit ‘B’.” (Some capitalization omitted.) Said Exhibit B contains a legal description of the subject hotel property but does not identify the property by its common street address. 3 Payne went on to state, “In the intervening years, the Motel 6 brand became owned by G6.” Payne declared, “On or about September 10, 2015, G6 sold the [subject hotel property] to Ridgecrest Hotel LLC, a Motel 6 franchisee,” and attached a September 14, 2015 grant deed (the 2015 Grant Deed) to her declaration. The 2015 Grant Deed reads, in part: “G6 …, a Delaware limited liability company, Grantor, grants, with permitted title exceptions described in Exhibit ‘B’ attached hereto for all purposes, to [¶] Ridgecrest Hotel LLC, a California limited liability company, Grantee, the real property located in City of Ridgecrest, County of Kern and State of California, having a physical address of 3 Exhibit B to the 1975 Grant Deed reads: “Parcel 3 in the unincorporated area of the County of Kern, State of California, as shown on Parcel Map No. 1773 filed May 9, 1974 in Book 10 Page 36 of Parcel Maps, in the office of the County Recorder of Kern County,” and excepts therefrom a partial interest in “oil, gas, petroleum and other hydrocarbon substances in or under said land” and certain surface rights previously quitclaimed from the land. 7. 535 S China Lake Blvd., Ridgecrest, California 93555, [i.e., the subject hotel property], and described as follows: [¶] See attached Exhibit A, incorporated by reference to this document.” (Boldface, underlining, & some capitalization omitted.) Exhibit A to the 2015 Grant Deed contains a legal description matching that of Exhibit B to the 1975 Grant Deed. Payne averred that, as of the date of the 2015 Grant Deed, “G6 no longer had ownership or control of the [subject hotel property].” Next, Payne averred, “On or about July 28, 2017, the [subject hotel property] was sold by Ridgecrest Hotel LLC to K.T.M.A.[] Inc.” Payne attached a July 28, 2017 grant deed (the 2017 Grant Deed) to her declaration, which states in part: “Ridgecrest Hotel LLC, a California Limited Liability Company [¶] hereby Grant(s) to: [¶] K.T.M.A. Inc., a California Corporation [¶] the real property in the City of Ridgecrest, County of Kern, State of California, described as: [¶] Legal Description Attached Hereto as Exhibit ‘A’ and Made a Part Hereof[.] [¶] Also Known as: 535 South China Lake Boulevard, Ridgecrest, CA 93555 [i.e., the subject hotel property].” (Boldface & some capitalization omitted.) Exhibit “A” to the 2017 Grant Deed matches the legal descriptions contained in each of the 1975 and 2015 Grant Deeds. As previously alluded to, the trial court took judicial notice of the 1975 Grant Deed, the 2015 Grant Deed, and the 2017 Grant Deed. According to Payne, “K.T.M.A.[] Inc., became a franchisee of the Motel 6 Brand” on or about July 28, 2017, the date of the 2017 Grant Deed “pursuant to a franchise agreement and a transfer agreement by and between Ridgecrest Hotel LLC, K.T.M.A.[] Inc., and G6.” She attached a document titled “Transfer Agreement and Consent” (some capitalization omitted) and excerpts of a document titled “Motel 6 Franchise Agreement [¶] by and between [¶] G6 Hospitality Franchising LLC [¶] Franchisor [¶] and [¶] K.T.M.A. Inc. [¶] Franchisee [¶] Ridgecrest, California.” (Boldface, underlining, & some capitalization omitted.) 8.  Payne stated, “Pursuant to the franchise agreement, K.T.M.A. Inc., owned, operated, controlled, and managed the [subject hotel property] while utilizing the Motel 6 brand as a franchisee”; “[a]t no point in time did G6 own, control, operate, or manage the [subject hotel property]”; “[a]t no point in time did G6 control K.T.M.A. Inc.’s hiring, directing, supervising, disciplining, or discharging of K.T.M.A. Inc.’s employees”; and “[a]t no point in time did G6 have control over the day-to-day operations of the [subject hotel property] or day-to-day aspects of K.T.M.A. Inc.’s employees.” Finally, Payne averred, “A review of Terminix records related to the [subject hotel property] from 2015 indicate that there were no bed bug issues, or other pest issues, with Room 131 [i.e., the room Lipson stayed in].” Payne attached to her declaration a purported copy of a 2015 Terminix report for the [subject hotel property]. We address Lipson’s objections to Payne’s declaration post. B. The Terminix Report The purported 2015 Terminix Report contains six columns and 30 rows of data in each column. The columns are denominated as follows: “Incident ID,” “Property ID,” “Incident Log Date,” “Positive Infestation,” “Negative Infestation,” and “Status.” There is no declaration from an employee of Terminix explaining the report. Consequently, the data contained in the report cannot be interpreted without speculating as to its meaning. 4 Below the “Incident ID” heading are 30 rows, each with different five-digit numbers. Below the “Property ID” heading are 30 rows referencing the number “244.” These columns are likely internal record keeping numbers used by Terminix to identify service incidents and the property to which the report relates. Even if true, there is no admissible evidence demonstrating that the number 244 corresponds with the subject hotel property. Similar uncertainties exist with regard to the columns denominated 4 In addition, there is no indication on the purported 2015 Terminix report that it originated from Terminix. 9. “Positive Infestation” and “Negative Infestation.” 5 Finally, below the “Incident Log Date” heading are 30 rows with dates ranging from January 3, 2014, to September 7, 2015. Even if these correspond to the dates Terminix provided inspection or pest control services to the subject hotel, the subject incident was alleged to have occurred in January 2019, more than three years later. The aforementioned evidence does not demonstrate that there was no bedbug infestation in Lipson’s room in 2019. However, G6 argues the evidence was merely intended to show that “in 2015 when G6 … last had ownership of the [subject hotel property], there were no issues with bedbugs at the [subject hotel property].” Whether there were bedbugs at the subject hotel in 2015 is not an issue in the case. Consequently, we will not consider the Terminix Report in assessing whether G6 met its burden on summary judgment. C. Deemed Admissions The trial court took judicial notice of its May 22 discovery order in which the court “deem[ed] admitted the matters at issue in [G6’s] requests for admission.” As a result of the May 22 discovery order, Lipson was deemed to have admitted that “K.T.M.A. Inc[.] is a Motel 6 Franchisee” and “any relationship between [G6] and … K.T.M.A. Inc[.] is that of a Franchisor and Franchisee.” Lipson was also deemed to have admitted that the 2015 Grant Deed reflects “that G6 deeded the PROPERTY to Ridgecrest Hotel LLC on or about September 10, 2015”; the 2017 Grant Deed reflects “that Ridgecrest Hotel LLC deeded the PROPERTY to 5 Below the “Positive Infestation” heading are 13 rows that each contain a single three- digit number, which are likely intended to correspond to hotel room numbers—but there is no evidence admitted confirming that is the case. Below the “Negative Infestation” heading are eight rows that contain one or more three-digit numbers, which likely correspond to hotel room numbers—but again, there is no evidence admitted confirming that is the correct interpretation. Notably, none of the three-digit numbers displayed under “Positive Infestation” and “Negative Infestation” are the same three-digit number as Lipson’s room, which was alleged to be room 131. 10. K.T.M.A. Inc., on or about May 18, 2017”; and that “there is no Grant Deed recorded or otherwise in the public record that shows G6 … owned the Property after September 14, 2015.” The term “PROPERTY” was defined to “refer[] to the Motel 6 located at 535 S. China Lake Blvd, Ridgecrest, CA 93555, [i.e., the subject hotel property,] as alleged in [Lipson]’s Complaint.” Lipson was further deemed to have admitted “that as of January 2019, G6 … did not own the PROPERTY,” “did not control the PROPERTY,” and “did not manage the PROPERTY.” Similarly, Lipson was deemed to have admitted “that G6 … did not manage the DAY TO DAY operations of the PROPERTY” and “did not manage the DAY TO DAY operations of [K.T.M.A. Inc.]” The term “DAY TO DAY” was defined to “refer[] to the standard day to day operations in the management of the PROPERTY, including but not limited to, guest check in, guest check out, cleaning, maintenance, responding to complaints made by guests, and scheduling or providing for the extermination of pests.” Finally, Lipson was deemed to have admitted that he “amended [his complaint] to add K.T.M.A. Inc.[,] to the lawsuit because [Lipson] knew that K.T.M.A. Inc.[,] was the Franchisee owner of the PROPERTY at the time of the alleged INCIDENT”; and that Lipson has “no evidence that supports the argument that G6 … and K.T.M.A. [Inc.,] have any other relationship than a Franchisor-Franchisee relationship.” IV. Analysis of G6’s Evidence A. Payne’s Declaration On appeal, Lipson states that G6’s alleged “ownership and control” of the subject hotel property was placed “squarely at issue” in the complaint. Lipson contends G6’s summary judgment motion “relied almost exclusively on the declaration of Rhonda Payne, a G6 administrator, and on recorded deeds showing a 2015 and 2017 transfer of the [subject hotel] property,” and “[n]either piece of evidence foreclosed liability.” 11.  Lipson contends Payne’s declaration that G6 “did not own, operate or control” the subject hotel property was insufficient because Payne did not establish she had personal knowledge of the day-to-day operations of the subject hotel. He further contends the various grant deeds in evidence show only a change in legal title but do not establish “the absence of control, management, or franchisor responsibility, the very theories pled in the Complaint.” To the extent Lipson is relying on a theory of franchisor responsibility, that theory depends on the franchisor exerting some level of relevant control over the franchisee’s operations or the plaintiff having been led by the franchisor to reasonably believe that the franchisor exercised such control. (Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 770 (Pereda).) “[A] franchisor is liable for the conduct of the franchisee only if the franchisor actually exercises control—or is reasonably believed to exercise control—over the ‘ “means and manner” ’of the franchisee’s operation that caused the plaintiff’s alleged injury.” (Id. at p. 770.) In some situations, “ ‘a franchisee may be deemed to be an agent of the franchisor.’ [Citation.] Where, for instance, a business labeled as a ‘franchisor’ nevertheless retains ‘the right of complete or substantial control over the franchisee’ or is reasonably perceived as having that right, then the business labeled as the ‘franchisee’ may be deemed to be the actual or ostensible agent of the ‘franchisor.’ ” (Pereda, supra, 85 Cal.App.5th at p. 769.) In a bona fide franchisor relationship, “the franchisor by definition controls the franchisee’s use of the franchisor’s trademark and business plan.” (Ibid.) “[A] finding of actual or ostensible agency based on that type of control alone would effectively render franchisees the agents of franchisors in every case, thereby ‘disrupt[ing]’ and ‘turn[ing] … “on its head” ’ one of the key aspects of the franchise business format—the ability of the franchisor to share its goodwill with its franchisees without assuming all responsibility for how they operate their otherwise independent businesses.” (Ibid., first bracketed insertion added.) 12.  “To avoid having the doctrine of ostensible agency swallow up this carefully balanced principle, courts have limited what can give rise to a reasonable belief that a franchisor is controlling the portion of the franchisee’s operation that caused the plaintiff’s alleged injury. It is not enough to show that the franchisor and franchisee have ‘some relationship.’ [Citation.] It is not enough to show that the franchisor has allowed the franchisee to use its trade name and good will [citations], or, relatedly, that the franchisor’s name appears on some of the materials used by the franchisee [citations].” (Pereda, supra, 85 Cal.App.5th at p. 770.) The Pereda court gave the following examples: “[I]n a case alleging fraud, it is reasonable for a plaintiff to believe that the franchisee is the ostensible agent of the franchisor when the franchisor’s affirmative ‘advertising campaign’ to the public conveyed that it ‘ “stood behind” ’ all of its franchisees. [Citation.] And in a case alleging violations of an administrative statute, it is reasonable for a plaintiff to believe that the licensee is the ostensible agent of the licensor when the licensor was supervising the licensee’s operations closely enough to know that the licensee was violating the statute and did nothing to stop those violations.” (Ibid.) Here, Lipson has not alleged anywhere in his complaint or asserted anywhere in his brief on appeal that he believed the operator of the subject hotel was acting as an ostensible agent of G6. 6 “Ostensible authority is authority that the principal, either intentionally or by lack of ordinary care, causes or allows a third party to believe the agent possesses.” (Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1005.) “Ostensible agency cannot be established by the representations or conduct of the 6 Lipson does include a general allegation in his complaint that reads: “Defendants, and each of them, including without limitation those Defendants herein sued as DOES[,] were acting in concert or participating with each other, or were joint participants and collaborators in the acts complained of, and were the agents or employees of others in doing the acts complained of herein, each and all of them acting within the course and scope of said agency and/or employment by others, each and all of them acting in concert with the other and all together.” 13. purported agent; the statements or acts of the principal must be such as to cause the belief the agency exists.” (J.L. v. Children’s Institute Inc. (2009) 177 Cal.App.4th 388, 404.) Lipson has not alleged he was led to believe an agency relationship existed between G6 and any defendant in this matter by any intentional or careless act of G6. Moreover, Lipson did not argue ostensible agency at the trial court level and submitted no evidence to support such an argument. Lipson’s complaint alleges all defendants “deliberately and recklessly chose not to inspect or otherwise ensure” his room was free of bedbugs; “failed to eradicate such infestations”; “deliberately chose not to notify, or otherwise failed to notify” him of the infestation; failed to “place adequate safeguards to protect clients from an ongoing bedbug exposure”; failed to make a change in management; “authorized or ratified housekeeping staff … to either not change bed skirts on a regular basis or to not inspect and ensure that bed skirts are free” from infestation—all of which demonstrate Lipson was relying on the theory that defendants (including G6) had operational control over the subject hotel. Lipson presented the following issue for review: “Did the trial court improperly resolve factual disputes in [G6’s] favor and disregard evidence suggesting that G6 … in fact retained operational control over its franchisee, thereby presenting a triable issue of fact precluding summary judgment?” He has cited to Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 489 for the proposition that “franchisor liability turns on retained control, not just ownership.” He argues, “The very existence of franchise branding, coupled with G6’s admitted status as franchisor, supports an inference of control that must be viewed in [Lipson’s] favor.” Thus, to the extent Lipson has relied on an agency theory of liability, that theory has always been that G6 owned, operated, managed, or otherwise controlled the subject hotel or its franchisee’s activities in running the subject hotel. 14.  As stated by our Supreme Court, “A franchisor … becomes potentially liable for actions of the franchisee’s employees, only if it has retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee’s employees. Any other guiding principle would disrupt the franchise relationship.” (Patterson v. Domino’s Pizza, LLC, supra, 60 Cal.4th at pp. 497–498, fn. omitted.) We agree with Lipson’s argument that Payne’s declaration failed to show that she had personal knowledge with regard to G6’s management and control of the subject hotel and property. 7 However, to the extent Payne’s declaration is insufficient to demonstrate such lack of management and control, as discussed below, Lipson’s deemed admissions fill the gap. B. Deemed Admissions “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: [¶] … [¶] … The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted ….” (§ 2033.280, subd. (b).) 8 Although a party may avoid the consequence of having matters deemed admitted if the trial court finds that the party has served “a proposed response to the requests for admission that is in substantial 7 Among other things, Payne did not state when she became employed by G6, did not aver that she was employed by G6 at the time of the subject incident, did not state when she became the director of franchise administration for G6, or whether her duties as such would have given her sufficient knowledge to determine whether G6 had any role in managing or controlling the subject hotel property. 8 Undesignated statutory references are to the Code of Civil Procedure. 15. compliance with Section 2033.220” (§ 2033.280, subd. (c)), 9 Lipson has not presented any evidence that the trial court found he served compliant, proposed responses to G6’s requests for admissions, and the May 22 discovery order demonstrates the court never made such a finding. “Matters that are admitted or deemed admitted through [requests for admissions] discovery devices are conclusively established in the litigation and are not subject to being contested through contradictory evidence.” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775; § 2033.410, subd. (a) [“Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under Section 2033.300.”].) “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) Thus, the May 22 discovery order conclusively established in the litigation all matters that G6 requested Lipson admit, and Lipson cannot contest the admissions with contradictory evidence. (See St. Mary v. Superior Court, at p. 775.) 10 9 Among other things, section 2033.220 requires that “[e]ach answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.” (§ 2033.220, subd. (a).) Said statute further requires that a party “[a]dmit so much of the matter involved in the request as is true” (id., subd. (b)(1)), “[d]eny so much of the matter involved in the request as is untrue” (id., subd. (b)(2)), and “[s]pecify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge” (id., subd. (b)(3)). 10 In Wilcox v. Birtwhistle, our Supreme Court determined that “a party may withdraw or amend admissions deemed admitted for failure to respond upon a showing of ‘mistake, inadvertence, or excusable neglect’ and no substantial prejudice pursuant to subdivision (m)” of former section 2033. (Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 977.) Subdivision (m) of former section 2033 has been continued without substantive change in section 2033.300. However, Lipson does not contend that he sought relief under section 2033.300 to avoid the May 22 discovery order or that the trial court denied such relief in error or otherwise. 16.  Lipson contends, “[R]equests for admission … may narrow issues for trial, they cannot relieve the moving party of its initial burden under … section 437c,” the summary judgment statute. Lipson cites to Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 and Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83 to support his contention. Neither citation stands for the principle asserted. In fact, section 437c expressly provides that a summary judgment motion “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (§ 437c, subd. (b)(1), italics added; see Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855 [acknowledging § 437c authorizes the use of admissions and, specifically, acknowledging that admissions to the effect that a plaintiff has discovered nothing may be used to demonstrate a party does not possess and cannot reasonably obtain needed evidence].) In People v. $2,709 United States Currency (2014) 231 Cal.App.4th 1278, a defendant “was found in possession of cocaine and $2,709 in cash.” (Id. at p. 1281.) The People brought civil proceedings to have the cash forfeited under statutes authorizing forfeiture of assets connected to drug trafficking.11 (People, at p. 1281.) The People served the defendant “with requests for admissions regarding the ownership and use of the cash.” (Ibid.) When the defendant did not timely respond, the People successfully moved to have the requests deemed admitted under section 2033.280. (People, at p. 1281.) The People then “moved for summary judgment … on the ground that the deemed admissions conclusively established [the d]efendant lacked standing to contest the forfeiture, that the cash was used to facilitate her drug crimes and that the cash was proceeds of those crimes.” (Ibid.) The court granted the motion after determining “the deemed admissions conclusively established the People’s entitlement to the property.” (Ibid.) 11 See Health and Safety Code sections 11488.4, subdivision (a) and 11470, subdivision (f). 17.  On appeal, the judgment was affirmed. (People v. $2,709 United States Currency, supra, 231 Cal.App.4th at p. 1286.) In addressing the defendant’s contention that “the cash at issue was her tax refund, not drug money,” the court wrote, “[The d]efendant never answered the request for admissions and has never asserted that her failure to answer was the ‘result of mistake, inadvertence, or excusable neglect.’ (Code Civ. Proc., § 2033.280, subd. (a)(2).) The court’s order deeming the requested admissions to be admitted is therefore conclusive and may not be ‘contested through contradictory evidence.’ ” (Id. at pp. 1287–1288; see also Miller v. Marina Mercy Hospital (1984) 157 Cal.App.3d 765, 770–771 [affirming summary judgment based on deemed admissions].) There is no merit to Lipson’s contention that deemed admissions cannot satisfy a moving party’s burden on summary judgment. C. G6’s Showing on Summary Judgment G6 demonstrated, by virtue of the 2015 Grant Deed, that G6 divested itself of ownership of the subject hotel property in 2015. G6 further demonstrated, by virtue of deemed admissions, that G6 did not own the subject hotel or property after September 14, 2015, or at the time of the subject incident. G6 showed, by virtue of deemed admissions, that G6 did not manage or control the subject hotel or property and did not manage the day-to-day operations of the subject hotel or property or the day-to-day operations of its franchisee, K.T.M.A. Inc., the owner of the subject hotel property, as of January 2019. G6 also demonstrated, by virtue of a deemed admission, that there is no relationship between G6 and K.T.M.A. Inc., other than that of franchisor and franchisee, and that Lipson has no evidence to the contrary. Finally, G6 demonstrated that Lipson amended his complaint to add K.T.M.A. Inc., to the lawsuit because he knew K.T.M.A. Inc., was the franchisee of G6 and owner of the subject hotel at the time of the subject incident. 18.  The allegations against the defendants are: they “deliberately and recklessly chose not to inspect or otherwise ensure that [Lipson’s] room was free of [bedbugs]” and “willfully disregard[ed] knowledge of [a] prior bedbug infestation”; they “failed to eradicate” the infestation in the room before renting it to Lipson; they failed to notify Lipson of the presence of bedbugs in his room; “[m]anagement did not place adequate safeguards to protect clients” from bedbugs; they “ratified housekeeping staff” not regularly changing bed skirts and inspecting for bedbugs; and management did not sufficiently train their employees or institute policies and procedures to protect against bedbug exposure and ratified their employees’ alleged shoddy practices. To the extent the above allegations are lodged against G6 (as opposed to other defendants), 12 Lipson’s claims against G6 are all premised on the contention that G6 had some role in owning, managing, or controlling the subject hotel. The deemed admissions demonstrate there is no merit to the contention. V. Lipson Did Not Demonstrate that Triable Issues of Material Fact Remained with Respect to His Claims Against G6 In opposing G6’s summary judgment motion, Lipson