United States District Court, N.D. California
ORDER DENYING MOTION FOR SUMMARY JUDGMENT RE: DKT.
Haywood S. Gilliam, Jr. United States District Judge
before the Court is Defendant Costco Wholesale
Corporation's motion for summary judgment as to Plaintiff
Rania Canavati's single cause of action for negligence.
See Dkt. No. 33. The Court held a hearing on the
motion on October 17, 2019. See Dkt. No. 40. Having
carefully considered the parties' arguments, the Court
DENIES the motion for summary judgment.
following facts are based on the evidence viewed in the light
most favorable to Plaintiff as the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (on a motion for summary judgment, “[t]he
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in [her]
September 4, 2016, between approximately 1:30 and 1:33 p.m.,
Plaintiff slipped and fell on a clear liquid on the floor
while walking down an aisle at a Costco store located in
South San Francisco. See Dkt. No. 33-2, Ex. A
(“Canavati Depo.” at 30:23-31:22; 34:4-20; 40:24-
41:11; 46:5-25); Dkt. No. 36-2 (“Eyad Canavati
Decl.” at ¶ 5). Although Plaintiff does not recall
the exact location where she fell, it was somewhere toward
the back of the store near the refrigerator and freezer
section. See Canavati Depo. at 28:6-29:5.
Plaintiff's husband, who was with her at the time, took
photographs of where she fell a few minutes later, and noted
the time on his phone as 1:33 p.m. See Canavati
Depo. at 29:7-17; Eyad Canavati Decl. at ¶¶ 4-5.
employees conduct regular inspections of the store, during
which they look for spills or other hazardous conditions.
See Dkt. No. 33-3 (“Wardhani Decl.” at
¶¶ 4-6). As relevant here, Defendant's
inspection log from the day of Plaintiff's fall indicates
that such inspections were conducted from 12:00 to 12:19
p.m., and again from 1:00 to 1:40 p.m. See Dkt. No.
33-3, Ex. A. Defendant's employee Yeni Wardhani conducted
the 1:00 p.m. inspection. See Wardhani Decl. at
¶ 5; Dkt. No. 36-1, Ex. 3 (“Wardhani Depo.”
at 12:17-14:12, 15:13-16:15). During this inspection, Ms.
Wardhani's task was twofold: she both looked for
potential hazards and also checked the digital thermometers
on the front of the refrigerators and freezers to ensure that
they stayed within the proper temperature range. Id.
at ¶ 7; Wardhani Depo. at 34:16-36:16; 39:7-40:9. Ms.
Wardhani's inspections take approximately 40 minutes, on
average, to complete. See Id. at 25:18-22.
present motion, Defendant contends that Plaintiff has not
proffered evidence that Defendant had any actual or
constructive notice of the liquid on the floor, as Plaintiff
lacks any evidence of where the liquid came from; what it
was; or how long it was on the floor prior to her fall.
See Dkt. No. 33-1 at 1-2, 5. Defendant further
contends that the undisputed evidence shows that Defendant
had performed an inspection of the area where Plaintiff fell,
and found no hazards in the five to fifteen minutes before
Plaintiff's fall. See Id. Plaintiff counters
that triable issues of fact exist as to when Defendant
inspected the area where Plaintiff fell. See Dkt.
No. 36 at 6-8.
ruling on a motion for summary judgment, the Court may only
consider evidence that is admissible. See Orr v. Bank of
Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002)
(citing Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec.
Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988)).
Federal Rule of Civil Procedure 56(c) allows parties to
object to evidence cited to support or dispute a fact. Here,
both parties raise objections to the evidence submitted in
relation to Defendant's motion. See Dkt. Nos.
36-3, 39. However, many of the objections concern evidence
that is not material to the Court's decision. To the
extent that certain facts or evidence are not mentioned in
this order, the Court has not relied on them in reaching its
decision. Moreover, even if the Court had considered such
facts or evidence, the Court finds that they would not have
changed its decision.
judgment is proper when a “movant shows 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 fact is “material” if it “might
affect the outcome of the suit under the governing
law.” Anderson, 477 U.S. at 248. And a dispute
is “genuine” if there is evidence in the record
sufficient for a reasonable trier of fact to decide in favor
of the nonmoving party. Id. But in deciding if a
dispute is genuine, the court must view the inferences
reasonably drawn from the materials in the record in the
light most favorable to the nonmoving party, Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986), and “may not weigh the evidence or make
credibility determinations, ” Freeman v.
Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled
on other grounds by Shakur v. Schriro, 514 F.3d 878,
884-85 (9th Cir. 2008).
respect to summary judgment procedure, the moving party
always bears both the ultimate burden of persuasion and the
initial burden of producing those portions of the pleadings,
discovery, and affidavits that show the absence of a genuine
issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the moving
party will not bear the burden of proof on an issue at trial,
it “must either produce evidence negating an essential
element of the nonmoving party's claim or defense or show
that the nonmoving party does not have enough evidence of an
essential element to carry its ultimate burden of persuasion
at trial.” Nissan Fire & Marine Ins. Co. v.
Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Where
the moving party will bear the burden of proof on an issue at
trial, it must also show that no reasonable trier of fact
could not find in its favor. Celotex, 477 U.S. at
325. In either case, the movant “may not require the
nonmoving party to produce evidence supporting its claim or
defense simply by saying that the nonmoving party has no such
evidence.” Nissan Fire, 210 F.3d at 1105.
“If a moving party fails to carry its initial burden of
production, the nonmoving party has no obligation to produce
anything, even if the nonmoving party would have the ultimate
burden of persuasion at trial.” Id. at
however, a moving party carries its burden of production, the
nonmoving party must produce evidence to support its claim or
defense.” Id. at 1103. In doing so, the
nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586. A
nonmoving party must also “identify with reasonable
particularity the evidence that precludes summary judgment,
” because the duty of the courts is not to “scour
the record in search of a genuine issue of triable
fact.” Keenan v. Allan, 91 F.3d 1275, 1279
(9th Cir. 1996). If a nonmoving party fails to
produce evidence that supports its claim or defense, courts
must enter summary judgment in favor of the movant. See
Celotex, 477 U.S. at 323.