Matlynn Rozell Giles v. 7-Eleven, Inc., et al.

materially altering the terms of the parties' agreement. (See¿BTHHM Berkeley, LLC v. Johnston (2024) 100¿Cal.App.5 th, 1220, ¿ 1225 -1226.)¿

CONCLUSION

Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion to enforce settlement. The Court orders Defendant to pay the remaining amounts of the first installment within two days of this Court's Order (or by August 26, 2026) and the second installment by September 5, 2026. The Court denies the request for attorneys' fees and costs as well as prejudgment interest. IT IS SO ORDERED. DATED: August 24, 2026 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

County of Los Angeles - West District Beverly Hills Courthouse / Department 20 5 MATLYNN ROZELL GILES, Plaintiff, v. 7-ELEVEN, INC., et al., Defendan ts. | Case No.: 24SMCV00326 Date: August 24, 2026 ORDER RE: DEFENDANT S R.BERG ENTERPRISES, INC. AND RALPH BERG'S MOTION FOR LEAVE TO FILE CROSS- COMPLAINT |

BACKGROUND

This is a personal injury case. Plaintiff Matlynn Rozell Giles alleges she bought three hot coffees from a 7-Eleven store operated by Defendants R. Berg Enterprises, Inc. and Ralph Berg (the Berg Defendants) pursuant to a franchise agreement with 7-Eleven. Plaintiff alleges the coffees were placed in a cardboard carrier and that, after she entered the front passenger seat of her friend's car, one hot beverage spilled from the cup, lid, and/or carrier while the car was stopped at a red light, causing second degree burns.

The operative Second Amended Complaint ("SAC") against 7-Eleven, the Berg Defendants, and Bunn-O-Matic Corporation alleges claims for negligence, strict product liability, and negligent product liability. The SAC alleges, among other things, that the coffee was excessively hot, the cup, lid, and/or carrier were defective or inadequate to prevent spillage, and adequate warnings were not provided.

Dart Container Corporation engaged in the manufacture, sale, supply, and/or distribution of cups and lids for use in 7-Eleven stores, including franchised stores. According to the Berg Defendants, Dart and 7-Eleven entered into the Indirect Product Purchase Agreement ("Agreement") effective January 1, 2022 which covers the relevant period in this case. The Berg Defendants have not attached a copy of the Agreement. Instead, they submit the declaration of their counsel who attests to purported provisions in the Agreement.

Counsel represents that the Agreement expressly provides that rights and obligations owed by Dart to 7-Eleven also run to franchisees that purchase the covered products. It further identifies 7-Eleven's franchisees and their officers, directors, and employees as indemnified parties and requires Dart to defend and indemnify them from specified third-party product claims and related attorneys' fees and expenses.

On June 20, 2025, 7-Eleven filed a separate action against Dart and Trend At, LLC for breach of contract and express indemnity. The Court related that action to this matter and consolidated the actions. Dart answered the indemnity action and eventually substituted in as counsel for 7-Eleven, consistent with Dart having agreed to undertake 7-Eleven's defense. The Berg Defendants formally tendered their defense and indemnity to Dart on January 27, 2026. Dart has not accepted the tender.

Berg Defendants now seek leave to file their proposed Cross-Complaint against Dart. The proposed Cross-Complaint alleges four claims for express indemnity, equitable indemnity, contribution and declaration relief. The Berg Defendants argue that these proposed cross- claims arise out of the same product and incident already at issue and adjudicating the claims together will promote judicial efficiency and reduce the risk of inconsistent findings or a later action concerning the same occurrence and alleged injuries. There was no opposition filed as of the posting of this tentative ruling.

LEGAL STANDARD

Code of Civil Procedure section 428.10, subdivision (b), authorizes a party against whom a cause of action has been asserted to file a cross-complaint alleging a cause of action against a person alleged to be liable thereon, whether or not that person is already a party, when the proposed cause of action "(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him." (Code Civ. Proc., Sec. 428.10, subd. (b).)

A party may file a cross-complaint against a co-party or another person before the court sets a trial date. (Code Civ. Proc., Sec. 428.50(b).) Here, trial has already been set (for January 25, 2027.) Once a trial date has been set, the party must obtain leave of court, which "may be granted in the interest of justice at any time during the course of the action." (Code Civ. Proc., Sec. 428.50(c).)

California law permits a defendant to cross- complain against a person from whom the defendant seeks equitable indemnity. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.) Such claims advance the policies underlying multiparty tort litigation by promoting settlement and equitable apportionment of responsibility among parties alleged to have contributed to the same loss. (Id. at 1449-1450.)

DISCUSSION

Code of Civil Procedure section 426.3 0 ¿governs compulsory cross-complaints.¿Subdivision (a) ¿of this statute¿provides in relevant part: " [I]f a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the¿ plaintiff, such party may not thereafter in any other action assert against the¿ plaintiff ¿the related cause of action not pleaded. " (Code Civ. Proc., Sec. 426.30, subd. (a), italics added.)

Code of Civil Procedure section 428.1 0 ¿governs permissive cross-complaints. It provides in relevant part: " A party against whom a cause of action has been asserted . . .¿ may ¿file a cross-complaint setting forth [P.] . . . [P.] (b) Any cause of action he has against¿ a person ¿alleged to be liable thereon,¿ whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him. " (Code Civ. Proc., Sec. 428.10, subd. (b), italics added.)

Here, the Berg Defendants' proposed cross-complaint is not against Plaintiff, and therefore, it is a permissive cross-complaint.

Code of Civil Procedure section 428.5 0 ¿governs the timing of the filing of a permissive cross-complaint. As relevant here,¿ subdivision (b) ¿of this statute provides a party may file a cross-complaint against a third party " at any time before the court has set a date for trial. " (Code Civ. Proc., Sec. 428.50, subd. (b) .)¿However, if a party fails to file a cross-complaint against a third party before the date set for trial, as was the case here, the party " shall obtain leave of court to file any cross-complaint " (id., subd. (c)); and " [l]eave may be granted in the interest of justice at any time during the course of the action " (Id.).

" Permission to file a permissive cross-complaint is solely within the trial court ' s discretion. " (Crocker Nat. Bank. v. Emerald ¿(1990) 221 Cal.App.3d 852, 864; see¿ Orient Handel v. United States Fid. & Guar. Co. ¿(1987) 192 Cal.App.3d 684, 701.) ¿Factors¿considered are judicial efficiency, fairness to the parties, the interests of justice, and delay in seeking court's permission to file the cross-complaint.¿(Crocker, 221 Cal.App.3d at 86 4.)

Here, judicial efficiency support s trying the proposed cross-claim s against Dart with the main action. Plaintiff alleges that the cup, lid, and/or carrier supplied with her hot beverages was defective or inadequate and contributed to the spill. The Berg Defendants allege that Dart supplied the cups and lids distributed for use at 7-Eleven stores and agreed to accept responsibility for third-party claims alleging product defects or injuries resulting from those products. If Plaintiff establishes that a cup or lid defect, inadequate warning, or other product condition caused or contributed to her injuries, Dart's conduct and contractual obligations will be directly relevant to the allocation of responsibility.

The Berg Defendants argue that there was no delay because they tendered their defense and indemnity to Dart on January 27, 2026 and attempted to obtain Dart's performance without motion practice. After Dart did not accept the tender, they sought authority to assert the claims and prepared the proposed Cross-Complaint. However, it is not clear why the Berg Defendants did not tender the defense sooner. They do not say when they first obtained knowledge of the agreement that purportedly indemnifies them. 7-Eleven sued Dart on June 20, 2025 for indemnity, and that action should presumably have put the Berg Defendants on notice of the existence of the indemnity agreement.

Notwithstanding, there appears to be no prejudice to Dart. Dart has known of the allegations and indemnity issues since at least June 20, 2025, when 7-Eleven sued Dart based on this incident. Dart answered, participated in the consolidated proceeding, and later undertook 7-Eleven's defense. The proposed Cross-Complaint presents no new accident, product, plaintiff, or damages claim; it asserts the Berg Defendants' corresponding rights under the same Agreement as the one raised in 7-Eleven's separate action against Dart. Notably, Dart has not filed an opposition and so concedes that it will suffer no prejudice from the filing of the cross-complaint.

CONCLUSION AND ORDER

For the foregoing reasons, the Court GRANTS the Berg Defendants' motion for leave to file a cross-complaint against Dart. IT IS SO ORDERED. DATED: August 24, 2026 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Case Number: 25SMCV00554 Hearing Date: August 24, 2026 Dept: 205 Superior Court of California County of Los Angeles - West District Beverly Hills Courthouse / Department 20 5 ANNMARIE RIZZO, Plaintiff, v. BOTANICAL HOSPITALITY GROPU, LLC, et al., Defendant s. |