Cenis v. WinCo Holdings, Inc. et al

Filing 28

ORDER Granting 22 Request For Continuance, signed by District Judge Dale A. Drozd on 8/18/2017. (Hearing on 14 motion for partial summary judgment previously set for 9/6/2017, is CONTINUED to 10/17/2017, at 09:30 AM in Courtroom 5 (DAD) before District Judge Dale A. Drozd. The parties should consult Local Rule 230 concerning deadlines for filing in connection with any motions to be heard on that date.) (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WENDY CENIS,

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Plaintiff,

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No. 1:17-cv-00863-DAD-JLT

v.

ORDER GRANTING REQUEST FOR
CONTINUANCE

WINCO HOLDINGS, INC.,
(Doc. No. 22)

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Defendant.

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This matter was removed here for the second time1 on June 28, 2017 from Kern County

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Superior Court. (Doc. No. 1.) This removal was predicated on the dismissal of the defamation
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claims against the sole non-diverse defendant, Brandon Rodgers. (See id. at 3–4.) Shortly after
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removal, on August 8, 2017, plaintiff filed a motion for partial summary judgment. (Doc. No.
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14.) On August 15, 2017, defendant sought a continuance of the hearing on plaintiff’s motion for
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partial summary judgment, requesting the hearing on that motion be scheduled for October 17,
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2017. (Doc. No. 22.) The following day, plaintiff filed an opposition to the request to continue
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the hearing. 23.)
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Defendant requests a continuance for three main reasons: (1) defense counsel is
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unavailable on the hearing date chosen by plaintiff; (2) defendant would like time to retain an
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The case was previously removed here in 2015 and then remanded to state court on August 12,
2016. See Cenis v. WinCo Holdings, Inc., et al., No. 1:15-cv-01502-DAD-JLT, Doc. Nos. 1, 38.
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expert to address plaintiff’s contention; and (3) defendant anticipates filing a cross-motion for

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summary judgment, and believes the motions should be considered together. (Doc. No. 22 at 2.)

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Plaintiff opposes this request, asserting that (1) defendant has “failed to show” that none of the

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attorneys of record can appear telephonically; (2) plaintiff’s summary judgment motion raises no

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issues not already raised in state court and defense counsel has not identified what expert need be

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retained here; and (3) because defendant already filed a motion for summary judgment in state

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court (which was denied), it should be barred from filing a second one before this court unless it

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can show different issues will be raised. (Doc. No. 23.)
The court will grant defendant’s request for a continuance. Defense counsel’s sworn

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statement that the attorneys working on the case are unavailable is accepted by the court. (Doc.

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No. 22-1 at ¶ 4.) While the court permits and even encourages telephonic appearances, it does so

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solely for the parties’ convenience and does not require telephonic appearance. Moreover, it

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appears expert discovery has not yet been conducted in this federal action, and is the sole

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remaining area of discovery in this case. (Doc. No. 21 at 10.) The recently-issued scheduling

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order issued by this court sets the close of expert discovery for December 29, 2017. (Doc. No. 25

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at 1.) It is reasonable for defendant to want the opportunity to engage in expert discovery prior to

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contesting plaintiff’s partial summary judgment motion. Additionally, defendant indicates it will

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file a cross motion for summary judgment. Deciding both motions for summary judgment at the

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same time is a significantly more efficient use of the court’s time and resources.2 Indeed, the

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dispositive motion filing deadline was just set today for February 16, 2018. (Doc. No. 25.)

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Hearing the motion for partial summary judgment on October 17, 2017 will still be considerably

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Plaintiff’s assertion that defendant is barred from filing a summary judgment motion here
because a summary adjudication motion in state court was rejected is incorrect. See Marlo v.
United Parcel Service, Inc., No. CV 09-07717 DDP (RZx), 2010 WL 3075037, at *1 (C.D. Cal.
Aug. 4, 2010) (noting summary judgment decisions in state court are subsequently treated as
interlocutory holdings that may be “‘set aside or reverse[d]’ should ‘cogent reasons or exceptional
circumstances’ so warrant”) (quoting Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 530
(9th Cir. 2000)); see also Hoffman v. Tonnemacher, 593 F.3d 908, 910 (9th Cir. 2010)
(presuming propriety of successive motions for summary judgment); Fairbank, 212 F.3d at 532–
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differed in material respects from the federal standard,” providing a cogent reason to reconsider
state court decision).
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ahead of the schedule set today in this case.
Therefore, good cause being shown, the hearing on this motion for partial summary

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judgment is continued to October 17, 2017 at 9:30 a.m. The parties should consult Local Rule

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230 concerning deadlines for filing in connection with any motions to be heard on that date.

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IT IS SO ORDERED.

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Dated:

August 18, 2017
UNITED STATES DISTRICT JUDGE

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