Berg v. United Air Lines, Inc.
Filing
37
ORDER granting 14 MOTION for Partial Summary Judgment as to First Cause of Action; NOTICE re: Consideration of Sua Sponte Entry of Partial Summary Judgment as to Second Cause of Action Pursuant to FRCP 56(f). Signed by Judge Samuel Conti on 08/24/2012. (sclc2, COURT STAFF) (Filed on 8/24/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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DEBRA BERG,
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Plaintiff,
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v.
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UNITED AIR LINES, INC., and DOES 1 )
through 20, inclusive,
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Defendants.
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Case No. 11-3612-SC
ORDER GRANTING DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT; NOTICE RE:
CONSIDERATION OF SUA SPONTE
ENTRY OF PARTIAL SUMMARY
JUDGMENT PURSUANT TO RULE
56(F)
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I.
INTRODUCTION
Plaintiff Debra Berg ("Plaintiff" or "Berg") sued Defendant
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United Air Lines, Inc. ("Defendant" or "United") in California
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state court on May 16, 2011.
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Ex. A ("Compl.").
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for negligence, arising from two incidents which allegedly injured
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her feet: (1) a slip-and-fall at United's "Red Carpet Club" where
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Berg was waiting to board a United flight to her home city of
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Portland (the "slip-and-fall claim"), and, (2) once she boarded, an
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incident in which a United flight attendant allegedly struck one of
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Berg's injured feet with a beverage cart (the "beverage-cart
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claim").
Id.
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grounds.
NOR at 2.
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matter for a jury trial commencing September 4, 2012, and gave the
ECF No. 1 (notice of removal ("NOR"))
Berg's complaint asserts two causes of action
United removed the case to this Court on diversity
On November 18, 2011, the Court set this
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parties a discovery cutoff date of July 5, 2012 and a final motion
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hearing date of July 27, 2012.
ECF No. 12.
On the last day to timely file a motion, June 22, 2012, United
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filed the first motion by either party, one for partial summary
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judgment.
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slip-and-fall claim.
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("Opp'n"), 16 ("Reply").1
ECF No. 14 ("Mot.").
Id.
The motion addressed only Berg's
It has been fully briefed.
ECF Nos. 15
On August 1, 2012, the Court sua sponte issued an Order to
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United States District Court
Show Cause requiring United to demonstrate that the case satisfied
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For the Northern District of California
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the amount-in-controversy requirement for diversity-based removal
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jurisdiction.
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motion for partial summary judgment without prejudice pending
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resolution of the jurisdictional question.
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a responsive brief on August 10.
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Order, the Court issues an order retaining jurisdiction and deeming
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the previously deferred summary-judgment motion ripe for ruling.
ECF No. 20 ("OSC").
The Court also denied United's
OSC at 6.
ECF No. 21.
United filed
Concurrent with this
For the reasons set forth below, the Court GRANTS United's
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motion for partial summary judgment with respect to Berg's slip-
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and-fall claim.
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claim against Berg and in favor of United.
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to Federal Rule of Civil Procedure 56(f), the Court notifies Berg
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The Court will separately enter judgment on that
Furthermore, pursuant
The parties have submitted declarations in support of their
briefs. ECF Nos. 14-1 (declaration of Richard G. Grotch, counsel
for United ("Grotch Decl. ISO Mot.")), 15-1 (declaration of John P.
Hannon, counsel for Berg ("Hannon Decl."), 15-2 (declaration of
Berg ("Berg Decl.")), 16-1 ("Grotch Decl. ISO Reply"), 16-2
(declaration of Gary Juliano, United employee and manager of the
club where Berg allegedly was injured ("Juliano Decl.")). Both
parties submit excerpts of a transcript of United's deposition of
Berg, taken on March 23, 2012. E.g., Grotch Decl. ISO Mot. Ex. A,
Hannon Decl. at 2-8 (collectively, "Berg Depo."). Because both
sides cite to the same certified copy of the deposition transcript,
the Court refers to the transcript's internal page and line numbers
without respect to which party filed the particular excerpt.
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that it is considering entering summary judgment against her and in
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favor of United with respect to her beverage-cart claim.
The jury trial of Plaintiff's remaining cause of action
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remains scheduled to begin on September 4, 2012.
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II.
BACKGROUND
The following account is taken from the evidence submitted by
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the parties viewed in the light most favorable to Berg.2
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26, 2010, Berg was in the Red Carpet Room, a club operated by
On June
See Berg
United States District Court
For the Northern District of California
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United within the San Francisco International Airport.
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Depo. at 19:8-10.
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watching a sporting event on the club's television.
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20.
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seat at the bar and went to the ladies' restroom within the Red
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Carpet Room.
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on one of the overhead flight information monitors located within
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the Red Carpet Club that her flight to Portland was starting to
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board.
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accumulated on the granite floor.
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Decl. ¶ 2-3; Grotch Decl. ISO Mot. Ex. C (Berg's responses to
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interrogatories ("Interog. Resp.")) ¶ 13.
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sprained and fractured both feet.
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also injured her pelvis, low back, and hip, and suffers from
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anxiety and stress related to these injuries.
Berg was sitting at the bar, drinking coffee and
After "at least" a half-hour and up to an hour, Berg left her
Id. at 20:8-16.
Id. at 20:17-21:7.
After leaving the restroom, she saw
Berg then slipped in water that had
Id. at 21:18-25, 22:13-17; Berg
In the fall, Berg
Interog. Resp. ¶¶ 2, 6.
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¶ 15.
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Berg
Id.
After Berg fell, she boarded her flight to Portland.
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Id. at 19:11-
See id.
Once Berg was onboard, the passenger in front of her allowed
The account does not include matters deemed admitted pursuant to
Federal Rule of Civil Procedure 36 which, as set forth in Section
IV infra, prove dispositive of this motion.
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her to place one of her injured feet on the armrest.
Id.
While
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Berg's foot was elevated, one of the United flight attendants
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struck it with the beverage cart.
Id.
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III. LEGAL STANDARD
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Entry of summary judgment is proper "if the movant shows that
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there is no genuine dispute as to any material fact and the movant
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is entitled to judgment as a matter of law."
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56(a).
Fed. R. Civ. P.
Summary judgment should be granted if the evidence would
United States District Court
For the Northern District of California
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require a directed verdict for the moving party.
Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).
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without the ultimate burden of persuasion at trial -- usually, but
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not always, a defendant -- has both the initial burden of
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production and the ultimate burden of persuasion on a motion for
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summary judgment."
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Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
"A moving party
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz
"In order to carry its burden of production, the moving party
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must either produce evidence negating an essential element of the
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nonmoving party's claim or defense or show that the nonmoving party
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does not have enough evidence of an essential element to carry its
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ultimate burden of persuasion at trial."
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its ultimate burden of persuasion on the motion, the moving party
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must persuade the court that there is no genuine issue of material
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fact."
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non-moving party.
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States, 474 F.3d 616, 621 (9th Cir. 2007).
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///
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///
Id.
Id.
"In order to carry
The moving party may rely on facts admitted by the
Fed. R. Civ. P. 56(c)(1)(A); Conlon v. United
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IV.
DISCUSSION
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A.
Berg's Slip-and-Fall Claim
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In seeking summary judgment with respect to Berg's slip-and-
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fall claim, United argues that Berg has already admitted matters
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that defeat her claim and require entry of summary judgment in its
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favor.
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Reply at 2-4.
The Court concludes that United is correct.
Under Rule 36, "[a] matter is admitted unless, within 30 days
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after being served, the party to whom the request is directed
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serves on the requesting party a written answer or objection
United States District Court
For the Northern District of California
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addressed to the matter and signed by the party or its attorney."
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Fed. R. Civ. P. 36(a)(3).
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establish "conclusively" the matter admitted.
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motion to establish the admissions is needed because Rule 36 is
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self-executing."
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1210 (C.D. Cal. 2004).
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The effect of a failure to respond is to
Id. 36(b).
"No
Cook v. Allstate Ins. Co., 337 F. Supp. 2d 1206,
The district court may, however, entertain a motion to
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withdraw the admission.
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should grant the motion to withdraw an admission when doing so
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would promote the presentation of the merits of the case and would
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not prejudice the other party.
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Co., 291 F. Supp. 2d 1104, 1111 (C.D. Cal. 2003).
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Fed. R. Civ. P. 36(b).
District courts
Wright v. Paul Revere Life Ins.
When, however, a party not only fails to respond to a request
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for admission but also fails to file a motion seeking to withdraw
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the admissions, entry of summary judgment against that party on the
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basis of the admissions is proper.
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O'Campo v. Hardisty, 262 F.2d 621, 624 (9th Cir. 1958)); Wright v.
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Paul Revere Life Ins. Co., 291 F. Supp. 2d 1104, 1111 (C.D. Cal.
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2003); see also Cereghino v. Boeing Co., 873 F. Supp. 398, 403 (D.
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Conlon, 474 F.3d at 621 (citing
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Or. 1994) (negligence case where district court granting summary
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judgment on issue of damages ruled that "a request for admission
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under Rule 36, and a resultant admission, are not improper merely
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because they, as here, relate to an 'ultimate fact,' or prove
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dispositive of the entire case."); Asea, Inc. v. S. Pac. Transp.
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Co., 669 F.2d 1242, 1247-48 (9th Cir. 1981) (no "absolute right" to
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have admissions withdrawn, even when admission "amount[s] almost to
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an admission of liability")).
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withdrawn or amended cannot be rebutted by contrary testimony or
Further, "[a]n admission that is not
United States District Court
For the Northern District of California
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ignored by the district court simply because it finds the evidence
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presented by the party against whom the admission operates more
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credible."
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v. AAA Legal Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991)).
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However, before a district court enters summary judgment on the
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basis of admissions alone, the moving party must provide admissible
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evidence, such as a declaration, that its request for admission has
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been served and no response has been received.
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Metro Police Dept., 4 F. App'x 414, 416 (9th Cir. 2001).
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Cook, 337 F. Supp. 2d at 1210 (quoting Am. Auto. Ass'n
See Carrasco v.
In this case, United has submitted an uncontroverted
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declaration stating that United served its requests for admission
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on Berg, through her counsel, on May 31, 2012.
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ISO Reply at ¶ 2.
Berg had until July 5, 2012 to respond to
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United's requests.
See Fed. R. Civ. P. 36(a)(3) (thirty-day
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deadline); id. 6(d) (adding three days to deadline if service is
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effected in certain ways).
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responded.
See Grotch Decl.
As of July 13, 2012, Berg had not
Grotch Decl. ISO Reply at ¶ 4.
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Thus, by operation of
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Rule 36(b), Berg is deemed to have admitted the matters contained
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in United's request for admission.3
Those matters are dispositive of Berg's slip-and-fall claim
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and justify entry of summary judgment in favor of United with
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respect to that claim.
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which was removed on diversity grounds.
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F.3d 493, 495 (9th Cir. 2002) (citing Klaxon Co. v. Stentor Elec.
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Mfg. Co., 313 U.S. 487, 496 (1941)).
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property owner must have actual or constructive knowledge of a
California law applies to this action,
See Patton v. Cox, 276
Under California law, "a
United States District Court
For the Northern District of California
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dangerous condition before liability will be imposed."
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Rogers Jewelry, 203 Cal. App. 4th 381, 385 (Cal. Ct. App. 2012)
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(citing Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (Cal. 2001)).
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Thus, United, to win summary judgment against Berg's slip-and-fall
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claim, must show that Berg "does not have enough evidence of an
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essential element to carry [her] ultimate burden of persuasion at
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trial" and that there is no genuine issue of material fact.
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Nissan, 210 F.3d at 1102.
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admissions alone.
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evidence" that United knew of the water in which she slipped, "no
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evidence" that United should have known of it, and "no idea" how
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long the water was there.
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2-4.
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establish that United had actual or constructive notice of the
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water on the floor of the Red Carpet Club, which is an essential
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Getchell v.
United can do so on the basis of Berg's
Berg has admitted, inter alia, that she has "no
Grotch Decl. ISO Reply Ex. A ("RFA") ¶¶
Berg, in other words, admits to having no evidence tending to
Berg has been on notice of her failure to respond since United
filed its reply brief focusing on July 13, six weeks ago. Reply at
2-4. Since then, Berg has neither moved to withdraw her admissions
nor made any mention of her failure to respond. This observation,
of course, should not be construed to mean that United was under
any affirmative duty to notify Berg, who is represented by counsel,
of her own failure to abide by the Federal Rules. It was not.
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element of her negligence cause of action for the slip-and-fall
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incident.
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Berg has admitted that there is none.
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genuine issue of material fact.
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and-fall claim.
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Moreover, no contrary evidence has been presented, and
Id.
Hence there is no
Berg's admissions doom her slip-
Even if the Court were to ignore the matters deemed admitted
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under Rule 36 -- and it may not, see Cook, 337 F. Supp. 2d at 1210
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-- the Court still would grant summary judgment to United.
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Consistent with Berg's apparent failure to participate in
United States District Court
For the Northern District of California
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discovery, she has mustered only the barest resistance to United's
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motion by filing a four-page opposition brief, nearly three pages
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of which is devoted to an analysis-free recital of background facts
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and laws.
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She states that the "only evidence that is before this court is the
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testimony of Berg as provided in her deposition."
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That is true, but Berg's deposition testimony hardly helps her
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slip-and-fall claim, since she admitted in that deposition that she
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did not "have any way of saying how long the water had been there
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[on the floor of the Red Carpet Club]."
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admission, as explained above, proves fatal to her negligence
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claim, because Berg admits that she has no way to say whether the
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water was on the floor long enough to impute to United constructive
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notice of its presence on the floor of the Red Carpet Club.
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other words, Berg admitted at her deposition the same fact that she
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admitted by operation of Rule 36(b).
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And the analysis Berg does offer is thin gruel indeed.
Opp'n at 3.
Berg Depo. 28:3-5.
This
In
Berg suggests in her opposition that United's motion must fail
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because United has not presented evidence of their premises
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inspection or maintenance policies.
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Opp'n at 3-4.
This argument
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betrays a misapprehension of how summary judgment works.
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may prevail by showing out that Berg "does not have enough evidence
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of an essential element to carry [her] ultimate burden of
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persuasion at trial."
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so, since, as Berg concedes, the only evidence before the Court is
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Berg's deposition testimony, in which Berg admits that she has no
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way of knowing how long the water was on the floor.
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that Berg cannot prove that United had notice of the alleged spill,
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United has carried its burden of persuasion.
Nissan, 210 F.3d at 1102.
United
United has done
By showing
And, because the only
United States District Court
For the Northern District of California
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evidence before the Court are the excerpts of Berg's deposition
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testimony offered by the parties through counsel, including Berg's
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counsel, there can be no genuine issue regarding this material
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fact.
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with respect to Berg's slip-and-fall claim even if the matters
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deemed admitted under Rule 36(b) did not so entitle it.
Thus, United would be entitled to entry of summary judgment
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B.
Berg's Beverage-Cart Claim
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The foregoing analysis appears to apply with equal force to
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Berg's second negligence claim, arising from the alleged beverage-
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cart incident.
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after the slip-and-fall incident, a United flight attendant struck
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her elevated foot with the onboard beverage cart.
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operation of Rule 36(b), however, Berg is deemed to have admitted,
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and thus conclusively established, that this never happened.
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22.
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claim.
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That claim was premised on Berg's allegation that,
Compl. ¶ 14.
By
RFA ¶
Such an admission is obviously fatal to Berg's beverage-cart
The Court has the power to enter summary judgment against Berg
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on her beverage-cart claim sua sponte after providing her with
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notice and a full and fair opportunity to be heard.
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Fed. R. Civ.
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P. 56(f)(3); Norse v. City of Santa Cruz, 629 F.3d 966, 971 (9th
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Cir. 2010) cert. denied, 132 S. Ct. 112 (U.S. 2011).
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courts have availed themselves of this procedure in a variety of
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circumstances.
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5434240 (D. Ariz. Oct. 24, 2011) (issuing Rule 56(f) notice after
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determining that possible lack of genuine issue of fact pertaining
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to defendant's intent might result in pointless trial for nominal
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damages); Hall v. City of Fairfield, 2:10-CV-00508-GEB, 2012 WL
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1205651 (E.D. Cal. Apr. 11, 2012) (issuing "tentative" summary
United States District Court
For the Northern District of California
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District
E.g., Byrd v. Arpaio, CV 04-02701-PHX-NVW, 2011 WL
judgment ruling after review of pretrial filings).
Normally, summary judgment should not be entered sua sponte
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until the parties have had an opportunity to respond that is
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equivalent to the filing of a brief opposing a motion for summary
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judgment.
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version of Rule 56, district court erred in entering summary
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judgment against a party sua sponte without giving that party
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notice equivalent to that provided by Federal Rules of Civil
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Procedure and applicable local rules and without giving party
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chance to develop evidentiary record relating to the particular
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issue on which summary judgment was granted).
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decided before the December 2010 revisions to Rule 56 removed the
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previous 10-day notice requirement.
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court specifically declined to decide what effect the applicable
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local rules would have "in the absence of a specific national
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rule," as well as whether the two-day notice given by the district
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court in that case "would have been 'reasonable' under the revised
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rule."
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exercise special care in providing notice when contemplating
See Norse, 629 F.3d at 971-73 (under then-operative
Id.
However, Norse was
See id. at 972 n.5.
The Norse
"In all cases, however, district courts should
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granting summary judgment sua sponte on the eve of trial after the
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dispositive motion deadline has passed."
Id.
In this case, the Court is confident that it exercising the
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of whether she should be permitted to withdraw her admission that
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the beverage cart never hit her foot pursuant to Rule 36(b).
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the Court previously stated, Berg has not yet made any such motion.
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If she were to do so, the only factors the Court need consider are
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whether permitting her to withdraw the admission would promote the
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United States District Court
requisite care.
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For the Northern District of California
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The only issue that Berg need address is the issue
presentation of the merits of the case and would not prejudice the
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other party.
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required to dispose of these issues beyond a declaration from the
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parties' counsel and perhaps the parties themselves.
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the Federal Rules no longer contain any firm notice requirements,
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instead deferring to judicial discretion and district courts' local
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rules.
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provide judges with latitude to notice motions as dictated by the
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circumstances of the case.
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motions shall be noticed pursuant to the requirements of Civ. L.R.
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7-2 and 7-3), id. 7-2 (35 days' notice required "[e]xcept as
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otherwise ordered or permitted" by the Court), id. 7-3 (providing
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"not more than" 14 days for filing opposition).
Wright, 291 F. Supp. 2d at 1111.
See Fed. R. Civ. P. 56(b).
As
No evidence is
As to notice,
This Court's local rules
See Civ. L.R. 56-1 (summary judgment
The Court hereby notifies Berg that, for the reasons stated
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herein, it is considering entering summary judgment against her and
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in favor of United as to her beverage-cart claim.
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shall be heard at the previously scheduled pre-trial conference and
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hearing on United's motions in limine set for August 31.
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///
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This matter
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V.
CONCLUSION
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For the foregoing reasons, the Court hereby GRANTS United's
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motion for partial summary judgment against Berg with respect to
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her first cause of action for negligence, pertaining to the alleged
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slip-and-fall incident within United's Red Carpet Club.
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separately will enter judgment on that claim against Berg and in
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favor of United.
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The Court
Berg's second cause of action for negligence, pertaining to
the alleged beverage-cart incident, is subject to sua sponte entry
United States District Court
For the Northern District of California
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of partial summary judgment due to Berg's admission under Rule
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36(b) that no beverage cart ever collided with her.
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of whether partial entry of summary judgment shall issue as to that
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claim shall be heard at the previously noticed pretrial conference
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and motion hearing set for 10:00 a.m. on Friday, August 31, 2012,
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in Courtroom 1, United States Courthouse, 450 Golden Gate Avenue,
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San Francisco, California.
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The question
The jury trial set for September 4, 2012 remains scheduled to
begin on that date.
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IT IS SO ORDERED.
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Dated: August 24, 2012
UNITED STATES DISTRICT JUDGE
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