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Lily Eidem, An Individual v. Target Corporation; and Does 1 Through 100

August 24, 2011


The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge


On February 11, 2010, Plaintiff Lily Eidem ("Plaintiff") slipped and fell in one of Defendant Target Corporation's ("Defendant") stores. Plaintiff brings this action against Defendant for premises liability and negligence, asserting Defendant is responsible for her fall. Before the Court is Defendant's motion for summary judgment ("Motion") in its favor on both of Plaintiff's claims. For the reasons set forth below, the Court GRANTS the Motion.


On May 24, 2010, Plaintiff filed a complaint ("Complaint") against Defendant in the California Superior Court, County of Riverside. (Doc. No. 1 (Not. of Removal), Ex. A.) On July 7, 2010, Defendant removed the action to this Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. (Not. of Removal.)

On May 4, 2011, Defendant filed the Motion. On May 5, 2011, Defendant filed: (1) a statement of undisputed facts ("SUF") (Doc. No. 59); (2) the declaration of Mathew J. Vande Wydeven ("Wydeven Declaration"), with exhibits A through D attached (Doc. Nos. 61--61-4); (3) the declaration of Jennifer Gallardo ("Gallardo Declaration"), with exhibit E attached (Doc. Nos. 62, 62-1); (4) the declaration of Michael Johnson ("Johnson Declaration"), with exhibit F attached (Doc. Nos. 63, 63-1); (5) the declaration of Shigeko Willard ("Willard Declaration") (Doc. No. 64); (6) the declaration of Krystal Hayes ("Hayes Declaration") (Doc. No. 65); (7) the declaration of Janelle Espinoza ("J. Espinoza Declaration") (Doc. No. 66); and (8) the declaration of Leonardo Espinoza ("L. Espinoza Declaration") (Doc. No. 67). On May 11, 2011, Defendant filed a motion to bifurcate the liability phase and damages phase at trial ("Motion to Bifurcate"). (Doc. No. 78.)

On May 20, 2011, Plaintiff filed: (1) a reply and objections to Defendant's SUF ("Plaintiff's Response to SUF"); (2) a statement of genuine issues ("SGI"); (3) a supporting memorandum of law ("Opposition")*fn1 (Doc. No. 81); (4) the declaration of Walter R. Huff ("Huff Declaration"), with exhibits A through G attached (Doc. Nos. 81-1--81-3); (5) the declaration of Elsa Siebert ("Siebert Declaration") (Doc. No. 81-4); and (6) opposition to the Motion to Bifurcate (Doc. No. 84).

On May 25, 2011, Defendant filed its reply in support of the Motion to Bifurcate. (Doc. No. 88.) On May 27, 2011, Defendant filed: (1) a reply in support of the Motion ("Reply") (Doc. No. 89); (2) a reply statement of undisputed facts ("Reply SUF") (Doc. No. 90); (3) objections to the evidence submitted by Plaintiff in her Opposition ("Defendant's Evidentiary Objections") (Doc. No. 91); (4) another declaration of Leonardo Espinoza ("L. Espinoza Reply Declaration") (Doc. No. 92); (5) and another declaration of Mr. Vande Wydeven ("Wydeven Reply Declaration"), with exhibits A through E attached (Doc. Nos. 93--93-5). On May 31, 2011, Defendant filed a supplemental declaration of Mr. Vande Wydeven ("Supplemental Wydeven Reply Declaration"), with exhibit F attached (Doc. Nos. 94, 94-1), and supplemental objections to the Elsa Siebert Declaration ("Defendant's Supplemental Siebert Objections") (Doc. No. 95).*fn2

On June 13, 2011, the parties came before the Court for the first scheduled hearing on the Motion. At that hearing, the Court found that, based upon a recent ruling by Magistrate Judge David T. Bristow on Plaintiff's motion to compel, the parties should submit supplemental briefing on the limited issue of Defendant's constructive notice. (Doc. No. 100.) On July 25, 2011, Plaintiff submitted her supplemental opposition to the Motion ("Supplemental Opposition"), along with another declaration from Mr. Huff ("Supplemental Huff Declaration"), with exhibits A though C attached. (Doc. No. 105.) On July 28, 2011, Defendant submitted its supplemental reply in support of the Motion ("Supplemental Reply"). (Doc. No. 106.) On August 18, 2011, the parties came before the Court for a hearing on the Motion.


A. Evidentiary Issues

Both sides cite facts that are not relevant to resolution of the Motion. To the extent certain facts are not mentioned in this Order, the Court has not relied on them in reaching its decision. Furthermore, except as described below, the Court overrules the parties' objections, but has independently considered the admissibility of the evidence underlying the SUF and the SGI, and has not considered facts that are irrelevant or based upon inadmissible evidence.

1. Sham Affidavit Doctrine

Both Plaintiff and Defendant challenge a number of facts and declarations submitted by the opposing party as being inadmissible because they contradict the declarant's prior testimony. "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). Known as the "sham affidavit" rule, this rule serves to protect the summary judgment process from misuse. As the Ninth Circuit has explained, "if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Van Asdale, 577 F.3d at 998 (quoting Kennedy, 952 F.2d at 266).

At the same time, "the sham affidavit rule is in tension with the principle that a court's role in deciding a summary judgment motion is not to make credibility determinations or weigh conflicting evidence." Van Asdale, 577 F.3d at 998. Thus the rule is applied with two limitations. First, the rule "does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony" and instead the "the district court must make a factual determination that the contradiction was actually a 'sham.'" Id. (quoting Kennedy, 952 F.2d at 266). Sham testimony is "testimony that flatly contradicts earlier testimony in an attempt to 'create' an issue of fact and avoid summary judgment." Kennedy, 952 F.2d at 266.

Second, "the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit." Van Asdale, 577 F.3d at 998-99. The rule should not be applied to exclude testimony where the allegedly "sham" affidavit is merely "elaborating upon, explaining or clarifying prior testimony" and contains only "minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence[.]" Id. at 998 (quoting Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir. 1995)).

Plaintiff first challenges the statements in the declarations of Leonardo Espinoza ("Mr. Espinoza") and Janelle Espinoza ("Mrs. Espinoza") (collectively, the "Espinozas") as being inconsistent with their subsequent deposition testimony. (Supp. Huff Decl. ¶ 5.) Plaintiff does not, however, identify any specific statements contained in the Espinozas' declarations that were contradicted in their depositions. During his deposition, Mr. Espinoza stated that he did not remember all the details of what happened at the time of Plaintiff's fall, although he neither retracted nor contradicted the statements from his declaration. (See Supp. Huff Decl., Ex. A (L. Espinoza Dep.).) Without more, Plaintiff's challenges to the Espinozas' declarations do not support the allegations that they are "sham" declarations. Accordingly, the Court overrules Plaintiff's objections and considers the facts contained in the Espinozas' declarations.

Plaintiff also challenges Defendant's supplemental interrogatory response in which Defendant asserts that Store employee Shigeko Willard ("Willard") inspected the area where Plaintiff fell 14 to 15 minutes before her fall. (Pl.'s Supp. Opp'n at 5-6.) Plaintiff appears to argue the Court should discount Defendant's factual assertion because Willard did not include this fact in her initial declaration. (See id.) Although not directly contradictory to the earlier response, Defendant's newly submitted evidence regarding Willard's inspection of the floor where Plaintiff fell has the appearance of sham testimony. Given the importance of this fact to a premises liability claim, Willard's failure to include this fact in her declaration is more than a minor inconsistency. Moreover, Defendant does not provide any explanation why this fact was not previously disclosed or only recently discovered.

While the Court finds the factual assertion regarding Willard's floor inspection may be a sham, it need not decide the issue. As will be discussed in greater detail below, the outcome of the Motion does not depend on the admission of this fact. Accordingly, the Court declines to rule on Plaintiff's objection.

Defendant also challenges the Siebert Declaration as contradictory and a sham declaration. (See Def.'s Supp. Siebert Objections) As Defendant's counsel notes, Siebert's deposition testimony calls into question a number of statements in her declaration. (Supp. Wydeven Reply Decl., Ex. F (Siebert Dep.).) At her deposition, Siebert disavowed a number of statements in her declaration and declared at one point that a statement from her declaration was "goofy" and incorrect. (Id. at 72:18-22.) Given the fundamental discrepancies between the statements in Siebert's declaration and ...

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