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Lerma v. California Exposition and State Fair Police

United States District Court, Ninth Circuit

January 2, 2014

REGINA LERMA, Plaintiff,


GREGORY G. HOLLOWS, Magistrate Judge.

Plaintiff is proceeding pro se with this action.[1] On November 14, 2013, defendants filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 29.) The motion was noticed for hearing on December 12, 2013. (Id.) Pursuant to this court's Local Rules, plaintiff was obligated to file and serve a written opposition or statement of non-opposition to the pending motion at least fourteen (14) days prior to the hearing date, i.e., by December 2, 2013.[2] See E.D. Cal. L.R. 230(c).[3] That deadline passed without plaintiff having filed a written opposition or statement of non-opposition with respect to the motion for summary judgment. On December 3, 2013, plaintiff was ordered to show cause for her failure to file an opposition to the motion, and to file an opposition by December 17, 2013. Plaintiff was warned at that time that failure to comply with the order might result in dismissal of this action. Plaintiff has not filed an opposition.


Defendants' motion seeks summary judgment or, in the alternative, summary adjudication pursuant to Fed.R.Civ.P. 56(c) alleging that it is entitled to judgment as a matter of law.

I. Legal Standards for Motion for Summary Judgment

The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate when it is demonstrated that there exists "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Under summary judgment practice, the moving party:

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita , 475 U.S. at 585-86. In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Matsushita , 475 U.S. at 586. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Anderson , 477 U.S. at 248.

In the endeavor to establish the existence of a factual dispute, the non-moving party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv. , 809 F.2d at 630. The evidence of the non-moving party is to be believed and all justifiable inferences are to be drawn in its favor. See Anderson , 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines , 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985), aff'd, 810 F.2d 898 (9th Cir.1987). To demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts... 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." Matsushita , 475 U.S. at 586-87 (internal citation and quotation omitted).

II. Legal Standards Relating to Unopposed Motion for Summary Judgment

A district court may not grant a motion for summary judgment simply because the nonmoving party does not file opposing material. See Heinemann v. Satterberg, 731 F.3d 914 (9th. Cir. 2013). Under Rule 56(e), a section entitled "Failing to Properly Support or Address a Fact, " "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact... the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order." Fed.R.Civ.P. 56(e) (2010). Thus, in order to grant summary judgment, district courts must assess the movant's motion and supporting materials and may consider the movant's assertions of fact undisputed in doing so. Id .; see also Heinemann, 731 F.3d 914.

The hearing on defendants' motion was continued and plaintiff was given the opportunity to file an opposition. Plaintiff failed to comply with the order to show cause and has filed absolutely nothing. The motion for summary judgment is therefore unopposed. As discussed below, and as is evident from the record, the case involves plaintiff's attempt to bring a pet Cocker Spaniel puppy into an amusement park and pass it off as a trained service animal under the ADA. On a separate prior occasion, plaintiff attempted to enter the same park without the puppy, instead attempting to bring in outside food of a commercial nature that was no different than the food sold inside the park, but which she claimed she needed pursuant to her disability as a borderline diabetic and her children's status as anemic. Defendants' motion clearly establishes these ...

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