United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Dkt. No. 28
KANDIS A. WESTMORE, Magistrate Judge.
On November 4, 2013, Plaintiff Sharyn Waters filed this action against Defendant Kohl's Department Stores, Inc. alleging that she was injured in a slip and fall incident at Defendant's Hayward, California store. On August 26, 2014, Defendant filed its motion for summary judgment. (Def.'s Mot., Dkt. No. 28.)
On November 6, 2014, the Court held a hearing, and after careful consideration of the parties' arguments, moving papers, and supplemental briefing submitted by the parties, and for the reasons set forth below, the Court DENIES Defendant's Motion for Summary Judgment.
On November 5, 2011, Plaintiff Sharyn Waters allegedly tripped and fell at Defendant Kohl's Department Store, Inc.'s Hayward, California store. (Compl., Dkt. 1, Ex. A.) She claims to have fallen as a result of "(1) narrowly spaced clothing racks, and (2) litter  remain[ing] on the floor... [which caused] her to smash her head on the floor with violent force resulting in severe, permanent, and substantial injuries and permanent bodily and mental damage." (Compl. at 4.) Plaintiff's fall was witnessed by her son Robert McQueen. The parties now agree that the only potentially dangerous condition present that could have caused Plaintiff's fall was a sales tag. (Pl.'s Resp. to Def.'s Separate Statement of Undisputed Material Facts ISO of Mot. for Summary Judgment, "Pl.'s Resp., " Dkt. No. 35-3.) The parties dispute whether the tag shown in the video footage (Def.'s Mot., Ex. D) is the tag on which Plaintiff allegedly slipped. (Pl.'s Resp. ¶ 5; Pl.'s Opp'n at 11:1-5.)
On November 4, 2013, Plaintiff and John Philip Waters filed this action in Alameda County Superior Court, which Defendant subsequently removed to federal court. Thereafter, John Philip Waters dismissed his claims against Defendant with prejudice.
Defendant filed its motion for summary judgment on August 26, 2014. Plaintiff filed her opposition on September 10, 2014. (Pl.'s Opp'n, Dkt. No. 35.) Defendant filed its reply on September 16, 2014. (Def.'s Reply, Dkt. No. 37.)
On November 6, 2014, the Court held a hearing on the motion for summary judgment and ordered supplemental briefing on the alleged spoliation of evidence. (Minute Entry, Dkt. No. 45.) On November 20, 2014, Plaintiff filed a supplemental brief. (Pl.'s Brief, Dkt. No. 52.) On December 2, 2014, Defendant filed its supplemental brief. (Def.'s Brief, Dkt. No. 54.) Also on December 2, 2014, Defendant filed objections to the evidence in Plaintiff's supplemental brief on the grounds that it was not properly authenticated. (Dkt. No. 55.) On December 5, 2014, Plaintiff, without leave of court, filed a declaration in support of the evidence cited in the supplemental brief. (Decl. of K. Walter Johnson, Dkt. No. 56.)
II. LEGAL STANDARD
A party may move for summary judgment on a "claim or defense" or "part of... a claim or defense." Fed.R.Civ.P. 56(a). Summary judgment is appropriate when, after adequate discovery, there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Id .; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).
On an issue where the nonmoving party will bear the burden of proof at trial, it may discharge its burden of production by either (1) by "produc[ing] evidence negating an essential element of the nonmoving party's case" or (2) after suitable discovery "show[ing] that the nonmoving party does not have enough evidence of an essential element of its claim or defense to discharge its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000); see also Celotex, 477 U.S. 324-25.
Once the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250. "A party opposing summary judgment may not simply question the credibility of the movant to foreclose summary judgment. Anderson, 477 U.S. at 254. "Instead, the non-moving party must go beyond the pleadings and by its own evidence set forth specific facts showing that there is a genuine issue for trial." Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001) (citations and quotations omitted). The non-moving party must produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan v. NMS Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of material fact to defeat summary judgment. Thornhill Publ'g Co., Inc. v. Gen. Tel. & Electronics Corp., 594 F.2d 730, 738 (9th Cir. 1979).
In deciding a motion for summary judgment, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255; Hunt v. ...