Judge: Michael E. Whitaker, Case: 21STCV20071, Date: 2023-02-02 Tentative Ruling

Case Number: 21STCV20071    Hearing Date: February 2, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment, or in the alternative Summary Adjudication; Memorandum of Points and Authorities
2. Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication
3. Declarations and Exhibits in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication

PLAINTIFF’S OPPOSITION PAPERS:

1. Plaintiff’s Opposition to Motion for Summary Judgment, or in the alternative Summary Adjudication; Memorandum of Points and Authorities
2. Plaintiff’s Response to Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication
3. Declaration of Jessica N. Marshall in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, or in the alternative Summary Adjudication
4. Plaintiff’s Objections to Declaration of Nick Tully in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication

COSTCO’S OPPOSITION PAPERS:

1. Costco’s Opposition to Motion for Summary Judgment, or in the alternative Summary Adjudication; Memorandum of Points and Authorities
2. Costco’s Separate Statement of Undisputed Material Facts in Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication, and Additional Undisputed Material Facts
3. Costco’s Objections to Evidence Submitted by in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication
4. Costco’s Notice of Lodging Evidence Under Seal in Support of its Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication

REPLY PAPERS:

1. Reply to Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication by Plaintiff and Costco
2. Objections to Plaintiff’s Evidence in Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication, and Declaration of Christopher D. Lockwood

Plaintiff Jianhua Hao (Plaintiff) sued Defendants Costco Wholesale Corp. and Arctic Cooling Systems, LLC (collectively, Defendants) for premises liability and general negligence based on injuries Plaintiff alleges he sustained from a slip and fall incident at a Costco Warehouse.  Defendant Arctic Cooling Systems, LLC (Arctic Cooling) moves for summary judgment, or in the alternative summary adjudication, on Plaintiff’s complaint.  Plaintiff opposes the motion.  Further, Defendant Costco Wholesale Corp. (Costco) separately opposes the motion.  Arctic Cooling replies.

Preliminarily, the Court notes that Costco has filed a Notice of Lodging Evidence Under Seal in support of its opposition to Arctic’s motion for summary judgment or in the alternative summary adjudication.  Costco has lodged the following evidence under seal with the Court:  (1) May 1, 2020 Refrigeration Maintenance Services Agreement between Arctic and Costco; and (2) August 31, 2020 Refrigeration Maintenance Services Agreement between Arctic and Costco. 

Unless confidentiality is required by law, court records are presumed to be open to the public, pursuant to a potent “open court” policy undergirded by the First Amendment and favoring the public nature of court proceedings.  (Cal. Rules of Court, rule 2.550(c); see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178.)  Consequently, pleadings, motions, discovery documents, and other papers may not be filed under seal merely by stipulation of the parties; filing under seal requires a court order.  (Cal. Rules of Court, rule 2.551(a); see also H.B. Fuller Co. v. Doe¿(2007) 151 Cal.App.4th 879, 888.) 

A sealing order must be sought by means of a motion (or application) and accompanied by a memorandum of points and authorities, as well as evidence and testimony containing facts sufficient to justify the mandatory findings required to support a sealing order.  (Cal. Rules of Court, rules 2.550 (d) & 2.551(b).)  The proponent of the sealing order must also conditionally lodge the unredacted matter to be sealed with the court.  (Id., rule 2.551(b)(4).) 

Further, the Court notes that section 17 of the Protective Order filed on November 3, 2022 provides:  “Where any Confidential Materials, or Information derived from Confidential Materials, is included in any motion or other proceedings governed by California Rules of Court, Rules 2.550 and 2.551, the party shall follow those rules.”

Here, Costco has failed to comply with Rules 2.550 and 2.551. Thus, the Court cannot review the May 1, 2020 and August 31, 2020 services agreements between Costco and Arctic, which would likely elucidate the nature of said agreements, in its analysis of the subject motion.  Because the nature of the agreement between Costco and Arctic is apparently critical to Plaintiff and Costco’s oppositions to Arctic’s Motion for Summary Judgment, or in the Alternative Summary Adjudication, the Court shall continue the hearing to allow Costco an opportunity to obtain an order sealing records per the California Rules of Court.  Without such an order, the Court is not inclined to consider the records advanced by Costco in opposition to the motion. 

Accordingly, the Court shall continue the hearing on Arctic’s Motion for Summary Judgment, or in the Alternative Summary Adjudication to April 6, 2023 at 1:30 PM in Department 32. 

Arctic shall provide notice of the Court’s orders and file a proof of service of the same.