Luisa Ramirez v. Costco Wholesale Corporation, a Washington corporation; and Does 1 through 20

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LUISA RAMIREZ, Case No.: 24-CV-1197 TWR (LR) 12 Plaintiff, ORDER (1) VACATING HEARING, 13 v. AND (2) DENYING DEFENDANT’S MOTION FOR SUMMARY 14 COSTCO WHOLESALE JUDGMENT CORPORATION, a Washington 15 corporation; and DOES 1 through 20, (ECF Nos. 44, 45) 16 Defendants. 17 18 Presently before the Court is Defendant Costco Wholesale Corporation’s Motion for 19 Summary Judgment or, in the Alternative, Partial Summary Judgment (“Mot.,” ECF No. 20 44), as well as Plaintiff Luisa Ramirez’s Opposition to (“Opp’n,” ECF No. 55), 21 Defendant’s Reply in Support of (“Reply,” ECF No. 59), and Plaintiff’s Sur-reply in 22 Opposition to (“Surreply,” ECF No. 68) the Motion. Because the Court determines that 23 the Motion is appropriate for resolution on the papers without oral argument pursuant to 24 Civil Local Rule 7.1(d)(1), the Court VACATES the hearing set for November 13, 2025. 25 (See ECF No. 45.) Having carefully considered the Parties’ arguments, the record, and the 26 relevant law, the Court DENIES Defendant’s Motion. 27 / / / 28 / / / 1 BACKGROUND 2 I. Undisputed Material Facts 3 “On March 14, 2023, Plaintiff . . . slipped and fell at the Costco warehouse located 4 in El Centro, California.” (ECF No. 66 (“Jt. Stmt.”) No. 1.) “Ms. Ramirez’s fall was 5 captured on surveillance footage[,]” (id. No. 17), which “shows Plaintiff fell at 6 approximately 5:44 p.m.” (Id. No. 18.) “Plaintiff did not see the substance on the ground 7 before she slipped and fell[,]” (id. No. 3); “did not know how long the substance was on 8 the ground before she slipped and fell[,]” (id. No. 4; see also id. No. 31); and “does not 9 know how the substance got onto the floor.” (Id. No. 5.) “Costco’s Incident Report 10 confirms that Ms. Ramirez slipped on ‘what appeared to be water or liquid.’” (Id. No. 6.) 11 “Plaintiff fell near the rotisserie chicken display.” (Id. No. 2.) “Ms. Ramirez and an 12 eyewitness testified that they believe the liquid [Plaintiff slipped on] was a mixture of water 13 and oil runoff from a rotisserie chicken container.” (See id. No. 7.) “In 2023, hot rotisserie 14 chickens were packaged in two-piece plastic containers known as ‘clamshells.’” (Id. No. 15 9.) “Costco knows that oil or grease can accumulate when hot chicken is packaged in a 16 plastic container.” (Id. No. 8.) Although Costco “employees[,] including the General 17 Manager and Service Deli Manager[,] did not think the clamshells presented a risk of harm 18 from leaking[,]” (see id. No. 11), “Plaintiff’s expert has stated that spilling or leakage from 19 ‘clamshell’ containers when the containers are not properly sealed is a known risk.”1 (Id. 20 No. 10.) “General Manager[] Paul Lopez could not say whether employees handling 21 rotisserie chickens were instructed to check for leaks or spillage.” (Id. No. 13.) 22 “Costco’s policies require all employees to routinely inspect the warehouse on an 23 ongoing basis during their shifts.” (Id. No. 19.) “Costco employees are required by policy 24 25 26 1 Defendant “object[s] to this fact as lacking foundation and unsubstantiated expert opinion.” (See Jt. Stmt. at 4:22–23; see also Reply at 7–9.) Although Defendant’s challenge to Alex Balian’s 27 qualification as an expert witness may well succeed—a challenge that, to be clear, the Court does not find necessary to rule on to resolve the instant Motion—the Court ultimately accepts this fact as an undisputed 28 1 to conduct and document daily floor walks / safety inspections of the warehouse every hour 2 between opening and closing hours of the warehouse, in order to discover any unsafe 3 conditions and to repair, replace, or give adequate warning of anything that could be 4 reasonably expected to harm others.” (Id. No. 20.) “Costco’s safety and inspection policies 5 treat the area around the rotisserie chicken display the same as every other area in the 6 store[,]” (id. No. 12), and “Costco’s floor inspectors are not instructed to exercise extra 7 care in the area around the rotisserie chicken display.” (Id. No. 14.) 8 “The Daily Floor-Walk / Safety Inspection report dated March 14, 2023, shows that 9 Costco employee Elizabeth Escobedo performed an hourly safety inspection of the 10 warehouse starting at 4:09 p.m. and concluding at 4:21 p.m., and another immediately 11 thereafter starting at 5:14 p.m. and ending at 5:49 p.m.” (Id. No. 21.) “Ms. Escobedo 12 walked every single aisle and area of the warehouse and did not record any visible spills.” 13 (Id. No. 22.) “Ms. Escobedo’s [second] floor inspection on the day of the incident included 14 taking and recording temperatures.” (See id. No. 29.) 15 “Ms. Escobedo completed a Daily Floor-Walk / Safety Inspection report dated 16 March 14, 2023, which did not include any recorded slipping hazards in the area where 17 Plaintiff fell.” (Id. No. 23.) When “[a]sked whether she made a practice of inspecting the 18 area around the chicken display for hazards, Ms. Escobedo testified, ‘I don’t know.’”2 (Id. 19 20 21 2 Defendant contends that Ms. Escobedo’s deposition should be excluded because it is incomplete and “Costco’s counsel was not allowed to question Ms. Escobedo to complete the deposition,” rendering 22 her testimony “one-sided[] and unreliable.” (See Reply at 9–10.) It appears that, after Plaintiff’s counsel finished his examination of Ms. Escobedo during her deposition, a nine-minute break was taken. (See 23 ECF No. 59-1 at 41:13:20.) Once the break ended, Plaintiff’s counsel asked Ms. Escobedo whether defense counsel had “call[ed] [her] on the phone during the break[.]” (See id. at 41:24–42:2.) Defense 24 counsel objected and instructed Ms. Escobedo not to answer, (see id. at 42:3–7); Plaintiff’s counsel 25 attempted to call Judge Rodriguez, (see id. at 42:22–24); and ultimately Plaintiff’s counsel suspended the deposition. (See id. at 43:7–12.) Defense counsel indicated that he did have questions for Ms. Escobedo, 26 (see id. at 42:19–21), and that he would “like to see the deposition finished today with the exception of that one particular question.” (See id. at 43:13–17.) 27 The issue was later raised during an informal discovery conference with Judge Rodriguez. (See 28 1 No. 26.) “Ms. Escobedo also said ‘I don’t know’ when asked whether she would have 2 noticed a puddle near the chicken display on March 14, 2023.” (Id. No. 27.) 3 “Ms. Escobedo[] testified under oath that she could not remember when she received 4 safety training or any specifics about the safety training she received[,]” (id. No. 24), “when 5 she had last received any safety training, and . . . if she had ever been tested on her 6 knowledge.” (Id. No. 25.) “Plaintiff’s expert has stated that Costco’s failure to provide 7 ongoing training to its safety inspectors falls below the standard of care.”3 (Id. No. 28.) 8 “There are no posted or verbal warnings given to customers in the area around the 9 rotisserie chicken display.” (Id. No. 15.) “Costco’s liability expert, Brad Rutledge, 10 testified that people who are alert to a potential slip hazard significantly reduce the 11 likelihood of a fall.” (Id. No. 16.) 12 13 14 improperly suspended the deposition. (See id.) Unfortunately, Judge Rodriguez did not issue a written order, (see id. ¶ 10), and the Parties appear to have different understandings of what was ordered. 15 Plaintiff’s counsel believes that he was ordered to pay for a second deposition of Ms. Escobedo, (see id. ¶ 9), while defense counsel appears to believe that Plaintiff’s counsel was ordered to pay for and arrange 16 the second deposition session. Counsel exchanged several emails, (see id. ¶¶ 12–13 & ECF Nos. 68-3 17 (“Surreply Ex. B”), 68-4 (“Surreply Ex. C”)), with Plaintiff’s counsel ultimately offering before the close of discovery “to renotice Ms. Escobedo’s deposition if [defense counsel] would like to provide a date.” 18 (See Bruno Surreply Decl. ¶ 13 & Surreply Ex. C.) Defense counsel never responded, (see Bruno Surreply Decl. ¶ 14), but did email Plaintiff’s counsel on July 18, 2025, regarding his intention to move in limine 19 to exclude Ms. Escobedo’s deposition testimony at trial. (See id. ¶ 16 & ECF No. 68-5 (“Surreply Ex. D”).) 20 21 Ultimately, it appears that both Parties share responsibility for the failure to complete Ms. Escobedo’s deposition. Although the Court would be disinclined on this record to sustain Defendant’s 22 objection, the Court need not resolve this evidentiary dispute at present because, even if the Court were to preclude Ms. Escobedo’s deposition testimony at trial, “to survive summary judgment, a party does not 23 necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.” Burch v. Regents of Univ. of Cal., 433 24 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006) (quoting Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 25 2003)). Because Plaintiff could conceivably elicit this testimony directly from Ms. Escobedo at trial, the Court declines to disregard it for purposes of summary judgment. 26 3 It is unclear to what extent Defendant objects to this fact. (Compare ECF No. 66 at 10:4–8 27 (declining to object to Fact No. 28), with ECF No. 66 at 4:22–23 (objecting to Fact No. 10); Reply at 7–9 (objecting to Mr. Balian’s expert opinions generally).) Even excluding this fact from the Court’s analysis, 28 1 II. Procedural Background 2 Plaintiff filed her Complaint for Damages and for Personal Injuries and Demand for 3 Jury Trial, asserting two causes of action for negligence and premises liability, on July 12, 4 2024. (See ECF No. 1.) Defendant answered on July 30, 2024. (See ECF No. 4.) 5 The Parties then engaged in discovery, which engendered several disputes that 6 required resolution by the Honorable Lupe Rodriguez, Jr. (See generally, e.g., ECF Nos. 7 18, 20, 21, 26, 38, 48; see also supra note 2.) The instant Motion followed on August 7, 8 2025. (See generally ECF No. 44.) Briefing of the Motion also proved contentious, 9 necessitating intervention from the undersigned. (See generally ECF No. 64.) 10 LEGAL STANDARD 11 Under Federal Rule of Civil Procedure 56, a party may move for summary judgment 12 as to a claim or defense or part of a claim or defense. Fed. R. Civ. P. 56(a). Summary 13 judgment is appropriate where “the movant shows that there is no genuine dispute as to 14 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 15 P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Although materiality is 16 determined by substantive law, “[o]nly disputes over facts that might affect the outcome of 17 the suit . . . will properly preclude the entry of summary judgment.” Anderson v. Liberty 18 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” only “if the evidence is such 19 that a reasonable jury could return a verdict for the nonmoving party.” Id. When 20 considering the evidence presented by the parties, “[t]he evidence of the non-movant is to 21 be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. 22 The initial burden of establishing the absence of a genuine issue of material fact falls 23 on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden 24 by “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, 25 and admissions on file, together with the affidavits, if any,’ which it believes demonstrate 26 the absence of a genuine issue of material fact.” Id. “When the party moving for summary 27 judgment would bear the burden of proof at trial, ‘it must come forward with evidence 28 which would entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 1 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 2 (quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)). 3 Once the moving party satisfies this initial burden, the nonmoving party must 4 identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S. 5 at 324. This requires “more than simply show[ing] that there is some metaphysical doubt 6 as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 7 586 (1986). Rather, to survive summary judgment, the nonmoving party must “go beyond 8 the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, 9 and admissions on file,’ designate ‘specific facts’” that would allow a reasonable fact finder 10 to return a verdict for the non-moving party. Celotex, 477 U.S. at 324; see also Anderson, 11 477 U.S. at 248. Accordingly, the non-moving party cannot oppose a properly supported 12 summary judgment motion by “rest[ing] upon mere allegations or denials of his pleading.” 13 Anderson, 477 U.S. at 256. 14 ANALYSIS 15 Through the instant Motion, Defendant seeks summary adjudication in its favor as 16 to both of Plaintiff’s causes of action for negligence and premises liability. (See Mot. at 2; 17 see also generally ECF No. 44-5 (“Mem.”).) “The elements of a negligence claim and a 18 premises liability claim are the same: a legal duty of care, breach of that duty, and 19 proximate cause resulting in injury.” Kesner v. Super. Ct., 1 Cal. 5th 1132, 1158 (2016). 20 “[T]o establish the element of causation in a premises liability claim, a plaintiff must 21 show that the store owner either directly caused the dangerous condition or had actual or 22 constructive knowledge of the dangerous condition.” Alacan v. Target Corp., No. CV 14- 23 04564-AB (VBKX), 2015 WL 10945603, at *2 (C.D. Cal. June 26, 2015) (citing Ortega 24 v. Kmart Corp., 26 Cal. 4th 1200, 1205–06 (2001)). Plaintiff concedes that she “cannot 25 identify any facts or evidence to support . . . that Costco had actual notice of the dangerous 26 condition [that] caused” her to slip and fall. (See Jt. Stmt. No. 30.) The question, therefore, 27 is whether Plaintiff can identify specific facts showing that Costco should have known of 28 the dangerous condition Plaintiff encountered. 1 Defendant contends that Plaintiff cannot do so, citing both the undisputed fact that a 2 Costco employee, Ms. Escobedo, had inspected the area where Plaintiff fell approximately 3 fifteen minutes before the incident, as well as case law that, generally, “California courts 4 apply a 30-minute threshold for submitting questions of actual notice to a jury – i.e., if 5 there is undisputed evidence that an active inspection of the relevant area occurred less 6 than 30 minutes before the accident, summary judgment in favor of the store owner is 7 appropriate.” (See Mem. at 2 (quoting Cardoza v. Target Corp., No. CV-17-2232-MWF- 8 RAOX, 2018 WL 3357489, at *3 (C.D. Cal. June 22, 2018), aff’d, 765 F. App’x 360 (9th 9 Cir. 2019)).) Plaintiff responds that Cardoza does not apply because it “expressly applies 10 only where there is ‘undisputed’ evidence that an ‘active’ inspection took place before the 11 incident[,]” whereas “Plaintiff disputes both the thoroughness of Costco’s inspection and 12 the adequacy of floor inspector’s training to perform a reasonable inspection.” (See Opp’n 13 at 8 (emphasis in original).) Specifically, Plaintiff points to Ms. Escobedo’s deposition 14 testimony in which she could not recall any specifics regarding her floor inspection training 15 and in which she was not sure whether she made a practice of inspecting the area around 16 the rotisserie chickens or would have noticed a puddle on the floor in that area if there had 17 been one. (See id. (citing ECF No. 55-7 at 16:8–14, 22:11–15, 23:10–12, 36:11–21, 18 38:8–10).) 19 In light of this evidence, the Court finds persuasive Termendzhyan v. Costco 20 Wholesale Corporation, No. CV 18-01646-AB (EX), 2019 WL 4570016 (C.D. Cal. 21 July 15, 2019), in which the Honorable André Birotte Jr. denied Costco’s motion for 22 summary judgment when the plaintiff had slipped and fallen on the floor of a Costco 23 produce cooler 29 minutes after an inspection during which “no water [had been] found.” 24 See id. at *1. In that case, the plaintiff’s expert opined that “the flooring in the produce 25 cooler [wa]s inherently and foreseeably hazardous” and that “the hourly 15-minute floor- 26 walk inspections [we]re inadequate given the size of the premises and the tasks that must 27 be performed.” See id. at *3. Judge Birotte concluded that these opinions “raise[d] triable 28 issues of fact as to whether Defendant had notice of the hazardous condition that caused | || Plaintiff's injury” because a jury could find “either that the inspections were not reasonable 2 ||under the circumstances, or that the flooring itself was too hazardous to be placed in a 3 || produce cooler.” See id. 4 Because Plaintiff introduces evidence calling into question the adequacy of 5 || Defendant’s training of its employees to conduct floor inspections and the thoroughness of 6 Escobedo’s inspections on March 14, 2023, the Court must conclude, as Judge Birotte 7 || did in Termendzhyan, that the inspection conducted within the generally applicable thirty- 8 || minute threshold “does not foreclose a jury from finding . . . that the inspections were not 9 ||reasonable under the circumstances.” See 2019 WL 4570016, at *3. The Court therefore 10 || DENIES Defendant’s Motion. 11 CONCLUSION 12 In light of the foregoing, the Court DENIES Defendant’s Motion for Summary 13 || Judgment (ECF No. 44). 14 IT IS SO ORDERED. 15 Dated: October 30, 2025 —— (2 16 [aD (re 17 Honorable Todd W. Robinson 8 United States District Judge 19 20 21 22 23 24 25 26 27 28 °