FOLLOW US

A California appellate court has refused to undo a lower court's decision finding that Hooters of America must continue to fight former servers' allegations that they were harassed and abused at work, ruling that Hooters hasn't met its burden of showing that it was entitled to summary adjudication. The Fourth Appellate District held Friday that the Riverside County Superior Court was correct in denying Hooters' motion for summary adjudication of two of the claims in the suit brought by Arlene Garcia and Brandi Smith. Those claims allege Hooters was liable for aiding and abetting the other defendants in the suit — the restaurant's other owners and operators, MS Foods LLC and Mahmood Saifie — and Hooters was liable for violations of unfair competition law. The three-judge panel rejected Hooters' argument that the trial court "misapplied the law" by ruling that a franchisor may be held liable for aiding and abetting under the Fair Employment and Housing Act. The record "does not support [Hooters'] characterization of its motion for summary adjudication or the trial court's order," the panel said. "Instead, the record shows that the trial court concluded that [Hooters'] evidence failed to meet its initial burden as the moving party and denied summary adjudication on that basis," the appellate court said. "Upon review of the record, we agree with the trial court that [Hooters] failed to satisfy its initial burden as the moving party seeking summary adjudication." In particular, the Fourth District said Hooters waited too long to bring its argument that the workers' complaint is inadequate, raising it at a hearing but not in any moving papers. And the trial court was correct in opting to ignore the new argument at that time, it said. "By waiting until the hearing on summary adjudication to raise an entirely new ground for granting its motion, [Hooters] deprived the trial court of the benefit of written briefing on the issue, prevented plaintiffs from having a meaningful opportunity to consider the argument and prepare a response, and deprived plaintiffs of the opportunity to timely seek amendment of the complaint to cure any purported pleading defects," the panel said. And in any event, the operative complaint "on its face shows that plaintiffs alleged a combination of omissions and affirmative conduct as the basis for aiding and abetting liability," according to the ruling. Todd Harrison, counsel for Garcia and Smith, said Monday that the decision, "albeit a limited one, allows franchise employees to go against a franchisor under aiding and abetting and business and professions code."