The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Home Depot U.S.A., Inc.'s ("Defendant") motion for summary judgment. Defendant moves for summary judgment on all claims asserted by Plaintiff Brenda Kate Haines ("Plaintiff") in this action: (1) premise liability and (2) negligence. Plaintiff has opposed the motion, and Defendant has filed a reply. Upon careful consideration of the parties' submissions and the record in this case, Defendant's motion for summary judgment is GRANTED.
A. Plaintiff's Allegations
Plaintiff alleges that while visiting a Home Depot store on June 19, 2008, a store employee named Sharon Mourett flashed a barcode laser scanner in Plaintiff's eyes. (Plaintiff's Opposition Brief, (Doc. 43), p. 26-27; p. 28, ¶ 3.)*fn1 As a result, Plaintiff sustained ocular injuries, which she asserts four experts have opined were caused by the laser exposure. (Doc. 43, p. 16:2-7; p. 26.) Plaintiff asserts that Defendant failed to "correctly maintain and house the correct rugged industrial lasers," the barcode laser scanners were "left out unattended," the scanners did "did not appear to have any safety lock mechanism or key lock," and, as a result, "any untrained person could intentionally cause harm to someone." (Doc. 43, p. 9, 26.) According to Plaintiff, the failure to maintain a locking mechanism on the barcode scanner was out of compliance with Occupational Safety and Health Administration ("OSHA") guidelines. (Doc. 43, p. 9-10.) Plaintiff claims that Home Depot breached its duty to ensure a safe environment, and also failed to provide Plaintiff with any emergency eye treatment following her injuries. (Doc. 43, p. 10-11.)
B. Undisputed Material Facts*fn2
On June 19, 2008, Plaintiff visited a Home Depot store located in Hanford, California, with her mother. (Defendant's Separate Statement of Undisputed Material Facts ("DUMF"), ¶ 3 (Doc. 35-2)). While walking around the store, several unidentified women, who were not Home Depot employees, inadvertently "hit" Plaintiff with a scanner. (DUMF ¶ 9.) Plaintiff then proceeded to sit at a table at the back of the store with her mother. (DUMF ¶ 4.) While she was seated, Plaintiff noticed two "very large looking laser-like devices sitting out" that were connected to a computer. (DUMF, ¶ 5.) According to Plaintiff, these were "rugged industrial" or "Class 3" barcode scanners. (DUMF ¶ 6.) Plaintiff noticed a Home Depot employee behind a counter, whose name appeared to be Kate Howard ("Kate").*fn3 (DUMF ¶ 7.) While Plaintiff was seated, Kate used the barcode scanner to hit Plaintiff's left and right eyes with the laser. (DUMF ¶ 8.) Plaintiff turned away to avoid injury, and when Plaintiff reached forward to push the laser barcode scanner away, Kate stopped.(DUMF, ¶ 8.) Upon exposure to the laser from the barcode scanner, Plaintiff's eyes began to burn and felt very dried out, her eyelids were cracked and irritated, and she experienced light sensitivity.*fn4
After leaving the Home Depot store, Plaintiff visited Dr. Segerstrom at the emergency room at Corcoran District Hospital. (DUMF, ¶ 14.) Dr. Segerstrom noted that Plaintiff did not suffer any "globe trauma" (DUMF, ¶ 15) and Plaintiff's eyelids, conjunctiva, sclera, corneas, pupils, and anterior chambers were normal upon inspection (DUMF, ¶ 16).*fn5 The report stated that Plaintiff refused to allow Dr. Segerstrom to examine her eyes with fluorescein (DUMF, ¶ 17.)*fn6 Dr.
Segerstrom discharged Plaintiff later that same day with a prescription for drops and ointments, and advised Plaintiff to see an ophthalmologist for a "dilated exam." (DUMF, ¶ 18.)
On July 7, 2008, Plaintiff's eyes were examined at Eye-Q Vision Care. (DUMF, ¶ 19.) The July 7, 2008, vision report noted that Plaintiff's eyelids, eyelashes, eyebrows, orbits, lacrimal glands, and irises were within normal limits. (DUMF, ¶ 19.)*fn7 The report indicated a history of laser exposure in the "Diagnosis" section. (DUMF, ¶ 20.)
A July 30, 2008, Eye-Q Vision Care records noted that Plaintiff had
"mild symptoms" and "no significant corneal involvement."*fn8
(DUMF, ¶ 21.) The examination report also stated that the
examining physician, Dr. Walker, assured Plaintiff that no permanent
damage from a barcode scanner was evident in either eye. (DUMF, ¶
22.)*fn9 The report also states that Plaintiff became
"bel[l]igerent" during the appointment and asked Dr. Walker why he was
"'reluctant to tell the truth about the laser damage.'"(DUMF,
23.)*fn10 The July 30, 2008, report indicates that
Plaintiff was "very persistent that [her eye] irritation [was] from
the laser" and Plaintiff insisted that there was "no safe laser."
(DUMF, ¶ 24.)*fn11 Dr. Walker's July 30, 2008, report
did not note any blisters on Plaintiff's eyes. (DUMF, ¶
25.)*fn12 Although Plaintiff asserts that there is an
"original report" from Dr. Walker, no such report has been produced.
(DUMF, ¶ 26.)*fn13
Plaintiff was referred to Dr. Schall by Plaintiff's former attorney. (DUMF, ¶ 27.)Dr. Schall provided a report that stated that Plaintiff's myopia was "not a result of the accident." (DUMF, ¶ 29.)*fn14 Finally, Dr. Schall noted that "[i]t would be necessary to review records of an eye doctor prior to the accident to determine if the irritation and dry eye condition were present prior to the accident." (DUMF, ¶ 28.)*fn15
Plaintiff alleges that her visual acuity decreased as a result of her exposure to the barcode scanner laser at Home Depot. (DUMF, ¶ 12), but she has been unable to acquire a pre-accident eye report from Dr. Valdez that Plaintiff contends shows her vision was 20/25 and 20/40 "a couple of months before" the accident (DUMF, ¶ 13).*fn16
Plaintiff filed suit against Defendant in Kings County Superior Court on June 9, 2010, seeking $25,000,000.00 in damages. Plaintiff filed a First Amended Complaint ("FAC") on July 7, 2010, stating that Defendant left "rugged industrial bar code lasers" unattended in its store in violation of OSHA safety standards. Defendant subsequently removed the matter to this Court. The parties proceeded through discovery, which closed on December 30, 2011.
On December 29, 2011, Defendant filed a motion for summary judgment. (Doc. 35.) The hearing on the motion was originally set for February 1, 2012. On January 13, 2012, Defendant re-noticed the hearing for February 15, 2012. (Doc. 40.) On January 20, 2012, Plaintiff filed a motion to continue the hearing to procure additional evidence in support of her opposition to the motion. (Doc. 41.) Plaintiff's motion for a continuance was construed as a motion pursuant to Federal Rule of Civil Procedure 56(d), and was denied without prejudice. Plaintiff was provided with a notice regarding the requirements for filing a Rule 56(d) motion and opposing a motion for summary judgment. (Doc. 42.) The hearing on Defendant's motion for summary judgment was continued to March 7, 2012, to allow Plaintiff additional time to renew her Rule 56(d) motion and file an opposition to the motion for summary judgment. On January 24, 2012, the same day that the Court issued the order denying Plaintiff's request for a continuance, Plaintiff filed a "Statement of Facts in Opposition" to Defendant's motion for summary judgment. (Doc. 43.) On February 6, 2012, Defendant filed a reply.
On February 22, 2012, Plaintiff filed another request to continue the hearing on Defendant's motion for summary judgment because her computer had been stolen and she was having difficulty obtaining copies of documents with which to supplement her opposition. (Doc. 47.) The Court granted a brief continuance of the hearing on Defendant's motion, noting that Plaintiff's January 24, 2012, opposition was filed before Plaintiff was provided the information as to the requirements for opposing a motion for summary judgment or filing a Rule 56(d) motion for a continuance. As a result, Plaintiff was permitted an opportunity to file additional documents to supplement her opposition on or before March 7, 2012. The hearing on Defendant's motion for summary judgment was continued until March 21, 2012. (Doc. 48.) Plaintiff did not file a supplemental opposition or submit any additional documents in support of her opposition to Defendant's motion.
After having reviewed the parties' briefs and all the supporting materials, the matter was found suitable for decision without a hearing and it was taken under submission. It is Defendant's motion for summary judgment that is currently pending before the Court.
Summary judgment is appropriate when the pleadings, the disclosure materials, the discovery, and the affidavits provided establish that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that a reasonable trier of fact could return a verdict in favor of the nonmoving party. Id.
A party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). "On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Id. (citing Celotex, 477 U.S. at 323). A "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial" and entitles the moving party to summary judgment. Celotex, 477 U.S. at 323.
If the movant has satisfied its burden, the nonmoving party must "show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in [its] favor." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). The nonmoving party must go beyond the allegations set forth in its pleadings. See Fed. R. Civ. P. 56(c). "[B]ald assertions or a mere scintilla of evidence" will not suffice. Stefanchik, 559 F.3d at 929. Indeed, the mere presence of "some metaphysical doubt as to the material facts" is insufficient to withstand a motion for summary judgment. Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id. at 587 (citation omitted).
In resolving a summary judgment motion, "the court does not make credibility determinations or weigh conflicting evidence." Soremekun, 509 F.3d at 984; see also Anderson, 475 U.S. at 255. Rather, "[t]he evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. Inferences, however, are not drawn out of the air; the nonmoving party must provide a factual predicate from which the inference may justifiably be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985).
A. Defendant's Requests for Judicial Notice is Denied in Part, Granted in Part
Defendant requests that the Court take judicial notice of Plaintiff's original and amended complaints. (Doc. 35-6.) Plaintiff's original complaint is contained on the docket in this action (see Doc. 1, p. 8-13); thus the request to judicially notice the original complaint is unnecessary and is DENIED as moot. See Ennis v. Mortg. Tree Lending, Inc., No. 2:08-cv-01301 GEB-EFB, 2009 WL 3642786, at * 1 n. 1 (E.D. Cal. Oct. 30, 2009) ("Since these documents are part of the docket in this action the motions for judicial notice were unnecessary and are [denied] as moot.")
Defendant also requests that the Court take judicial notice of Plaintiff's first amended complaint, which was filed in state court on July 7, 2010, prior to removal to this Court. Plaintiff does not oppose Defendant's request for judicial notice of this document. As this document should have been filed with the Court at the time of removal and because it is a pleading on file in another tribunal, it is subject to judicial notice. See Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (courts may take judicial notice of the docket in related cases as materials from a proceeding in another tribunal are appropriate for judicial notice). Defendant's request for judicial notice of Plaintiff's First Amended Complaint pursuant to Federal Rule of Evidence 201 is GRANTED.
B. Defendant's Evidentiary Objections are Sustained in Part, and Overruled in Part and Defendant's Motions to Strike Plaintiff's Evidence are Granted in Part, and Denied in Part "Before ordering summary judgment in a case, a district court must . . . rule on evidentiary objections that are material to its ruling." Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). An evidentiary objection is material to the district court's ruling if the court considered the evidence that was the subject of the objection. See id. Defendant made several evidentiary objections with regard to evidence Plaintiff submitted in support of her opposition to Defendant's motion. These objections are considered in turn below.
1. Defendant's Objection No. 1 is OVERRULED; Motion to Strike is DENIED
In its reply brief, Defendant objects to Plaintiff's Exhibit B (see Doc. 43, p. 41-42), which contains medical records from Corcoran District Hospital dated June 19, 2008, that were submitted in support of Plaintiff's opposition to Defendant's motion for summary judgment. Defendant contends that the records constitute hearsay pursuant to Federal Rule of Evidence 801 and are not properly authenticated. Defendant argues that Plaintiff "has not produced any evidence to support a finding that Exhibit 'B' is what she claims it to be. Furthermore, Exhibit B is an incomplete copy of Dr. Segerstrom's records." (Doc. 45-3, p. 2.)
"Authentication is a 'condition precedent to admissibility,' and this condition is satisfied by 'evidence sufficient to support a finding that the matter in question is what its proponent claims.'" Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (quoting Fed. R. Evid. 901(a) (footnotes omitted)). "[D]ocuments authenticated through personal knowledge must be attached to an affidavit that meets the requirements of [Fed. R. Civ. P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Id. at 773-74 (internal quotation marks, citations, and footnote omitted). The Ninth Circuit has "repeatedly held that 'documents which have not had a proper foundation laid to authenticate them cannot support [or defend] against a motion for summary judgment.'" Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (quoting Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)). "Consequently, objections predicated upon Federal Rule of Evidence 901 ["Requirement of Authentication or Identification"] are appropriate in the context of a motion for summary judgment." Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1120 (E.D. Cal 2006).
In Orr, however, the Ninth Circuit explained that the "inquiry into authenticity concerns the genuineness of an item of evidence, not its admissibility." Id. at 776. The court held that, "when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity." Id. The court recognized that, "when unauthenticated extracts of a document are submitted that do not readily indicate that they are parts of the same document authenticated by another party, the trial court is not required to deem them authentic." Id. at 776 n.16.
Here, Defendant is not actually challenging the authenticity of the medical records contained in Exhibit B to Plaintiff's opposition; rather, Defendant argues on purely procedural grounds that Plaintiff has failed to provide adequate authentication. The documents contained in Plaintiff's Exhibit B were already submitted and authenticated by Defendant in support of its motion. (See Doc. 35-4, ¶ 5; Doc. 36, Exhibit E, p. 48, 55-56.) Pursuant to Orr, these documents have been authenticated for use by Plaintiff. Further, these documents are subject to a hearsay exception. See Fed. R. Evid. 803(6); see also, e.g., United States v. Hall, 419 F.3d 980, 987 (9th Cir. 2005) (medical records are a "classic" exception to the hearsay rule). As such, Defendant's objections to Plaintiff's Exhibit B are OVERRULED and the motion to strike these documents is DENIED.
2. Defendant's Objection No. 2 is OVERRULED; Motion to Strike is DENIED
Defendant objects to Plaintiff's Exhibit C which consist of three medical records from Eye-Q Vision Care. One page contains images of Plaintiff's eyes and the remaining two pages are examination records. (See Doc. 43, p. 44-46.) The two pages of examination records are copies of documents already submitted and authenticated by Defendant. (Doc. 35-4, ¶ 6; Doc. 36, Exh. F). Pursuant to Orr, the authenticity requirement as to these two pages is satisfied, and Defendant's objection is OVERRULED. Regarding the document containing images of Plaintiff's eyes, the Court is not required to deem this record authentic because it is not a duplicate of the images already authenticated by Defendant. However, because Defendant is not actually challenging the authenticity of the record and is making the objection on purely procedural grounds,*fn17 the Court has the discretion to deem the document authentic. Orr, 285 F.3d at 776 n. 16. As such, Defendant's objection for lack of authenticity is OVERRULED.
Finally, although Defendant objects to these documents as hearsay, the documents are subject to a hearsay exception. See Fed. R. Evid. 803(6). Defendant's objection on the ground of hearsay is OVERRULED. ...