Opinion
21-cv-00686-HSG
01-26-2022
PAULINE HERNANDEZ, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
RE: DKT. NO. 31
HAYWOOD S. GILLIAM, UNITED STATES DISTRICT JUDGE
Pending before the Court is Defendant Costco Wholesale Corporation's motion for summary judgment. Dkt. No. 31. The Court finds this matter appropriate for disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court DENIES the motion without prejudice under Rule 56(d)(1).
I. BACKGROUND
Plaintiff Pauline Hernandez initially filed this slip and fall case in Sonoma County Superior Court. See Dkt. No. 1, Ex. A (“Compl.”). Defendant removed this action on January 28, 2021, on the basis of diversity jurisdiction. See Dkt. No. 1. Plaintiff alleges that in September 2019 she slipped and fell while at Costco in Santa Rosa, causing “mental, physical and nervous pain and suffering” as a result. See Compl. at 3. According to Plaintiff, there were grapes on the floor that caused her to slip. See Dkt. No. 31-1, Ex. A (“Hernandez Depo.”) at 32:11-21. Based on this incident, Plaintiff brings causes of action for negligence and premises liability. See Compl. at 2-5.
In its motion for summary judgment, Defendant contends that Costco employees conduct floor inspections of the store on an hourly basis. See Dkt. No. 31-2 (“Jarzombek Decl.”) at ¶¶ 2-6. On the day of the incident, Costco asserts that its records show that an employee conducted an inspection within 30 minutes before Plaintiff fell, and the employee did not see any grapes on the floor. See Id. at ¶¶ 3-4, & Ex. A; Dkt. No. 31-4 (“Cambron Decl.”) at ¶¶ 4-6. Defendant thus urges that it did not have actual or constructive notice of the grapes on the floor prior to Plaintiff's fall. See Dkt. No. 31 at 5-8; Jarzombek Decl. at ¶¶ 8-9. Defendant further argues that the grapes on the floor were an open and obvious condition that Plaintiff should have seen if she had exercised reasonable care. See Dkt. No. 31 at 8-9.
II. DISCUSSION
In response to Defendant's motion for summary judgment, Plaintiff contends that she has not had the opportunity to take sufficient discovery to respond to the motion. See Dkt. No. 36.
At summary judgment, where “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, ” a court may “defer considering the motion or deny it.” Fed.R.Civ.P. 56(d)(1). A party seeking relief under Rule 56(d) must show “(1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are essential to resist the summary judgment motion.” State of Cal., on Behalf of Cal. Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Plaintiff must have also diligently pursued the requested discovery. See Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995).
The Court finds that Plaintiff has adequately detailed the reasons she is unable to present evidence to properly address the claims raised in the present motion for summary judgment. Plaintiff has not yet taken the depositions of any of Defendant's witnesses, and they are not scheduled to occur until February 28, 2022. See Dkt. No. 36 at 3. These depositions include the three Costco employees who provided declarations in support of Defendant's motion for summary judgment: Chris Jarzombek, the Assistant General Manager for the Santa Rosa Costco who details the store's policies and practices of conducting hourly floor walks; Eric Gonsalves, a manager at Costco who investigated Plaintiff's fall; and Morgan Cambron, an employee at Costco who conducted the last floor walk before Plaintiff's fall. See generally Jarzombek Decl.; Cambron Decl.; Dkt. No. 31-3 (“Gonsalves Decl.”); see also Dkt. No. 37 at 2-3. Their declarations are integral to Defendant's motion, and Plaintiff's need to take their depositions is readily apparent. These employees' depositions are relevant to Plaintiff's ability to raise a genuine issue of material fact as to whether Defendant had actual or constructive notice of the grapes on the floor. See Ortega v. Kmart Corp., 26 Cal.4th 1200, 1207 (Cal. 2001) (“The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.”).
The Court also has no reason to believe that Plaintiff failed to pursue these depositions diligently. At the parties' request, the Court entered a scheduling order in which the dispositive motion hearing deadline was before the close of discovery. Compare Dkt. No. 23, with Dkt. No. 24. Thus, the close of discovery is not until March 28, 2022. See Dkt. No. 24. Plaintiff has noticed the depositions of Defendant's witnesses for February 28, 2022-before the close of discovery. See Dkt. No. 36 at 3. There is simply no basis for the Court to find that Plaintiff has failed to pursue this discovery diligently when fact discovery does not close for another two months. Moreover, in the interim, Plaintiff has engaged in other discovery. The site inspection occurred on October 13, 2021, and Plaintiff served written discovery shortly thereafter. See id.; see also Dkt. No. 37 at 3. Defendant did not serve its responses, however, until December 20, after it filed its motion for summary judgment. See Dkt. No. 36 at 3. It is reasonable for Plaintiff to want time to review Defendant's discovery responses before taking the depositions of Defendant's witnesses.
The Court entered the case schedule (unorthodox as it is) at the parties' mutual request. But it was an extremely poor use of the Court's and the parties' time and resources for Defendant to file a motion for summary judgment before the close of fact discovery. In the interests of fairness and efficiency, and to ensure that a full record is made, the Court in its discretion DENIES the motion for summary judgment under Rule 56(d)(1), but without prejudice to renewal once discovery is complete. The Court cautions the parties, however, that the case schedule remains in effect, and the Court is not inclined to continue the pretrial or trial dates to accommodate a second motion for summary judgment.
IT IS SO ORDERED.