Opinion
5:20-cv-02067-MEMF (SPx)
11-23-2022
PAUL ADLER, Plaintiff, v. CHURCH & DWIGHT CO. INC., and DOES 1 to 25, inclusive, Defendants. AND RELATED CROSS-ACTION(S)
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 53]
MAAME EWUSI-MENSAH FRIMPONG, DISTRICT JUDGE
Before the Court is the Motion for Summary Judgment filed by Defendant Church & Dwight Co, Inc. ECF No. 53. For the reasons set forth below, the Court DENIES the Motion.
I. Factual Background
On or about April 24, 2018, Plaintiff Paul Adler (“Adler”) was delivering chemicals to Defendant Church and Dwight Co. Inc.'s (“C&D”) facility (the “Facility”) in Victorville, California. ECF No. 54, Statement of Uncontroverted Facts and Conclusions of Law in Support of Defendant's Motion for Summary Judgment (“Def. SUF”) ¶ 1. Liquid chemicals are only delivered to a designated area, known as the Unloading Bay. Id. ¶ 4. During the delivery, Adler hit his right foot on a metal box covering a pipe, located in the Facility's Unloading Bay. Id. ¶¶ 8, 17. As a result, Adler lost his balance, fell, and suffered injuries. Id. ¶ 17.
This case concerns whether C&D is liable to Adler for his injuries that he suffered at the Facility that day.
II. Procedural History
On May 29, 2020, Adler filed this action in San Bernardino County Superior Court against C&D, alleging a single cause of action for premises liability. ECF No. 1-1 (“Complaint” or “Compl.”) at 6. On October 5, 2020, this action was removed to the Central District of California. ECF No. 1.
On September 22, 2022, C&D filed the instant Motion for Summary Judgment. ECF No. 53. The Motion was fully briefed on October 13, 2022. ECF Nos. 58 (“Opposition” or “Opp'n”), 63 (“Reply”). On November 10, 2022, the Court heard oral argument.
III. Applicable Law
Summary judgment should be granted if “the 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). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
Under Rule 56(a), a court also has authority to grant partial summary judgment, or “judgment on less than the entire case.” 10B Charles Alan Wright & Arthur R. Miller, FEDERAL PRAC. & PROC. § 2737 (4th ed. 2022) (citing FED. R. CIV. P. 56(a)). Under Rule 56(g), a court that “does not grant all the relief requested by the motion . . . may enter an order stating any material fact . . . that is not genuinely in dispute and treating the fact as established in the case.” FED. R. CIV. P. 56(g).
A court must view the facts and draw inferences in the manner most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1992); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This means that:
In cases where the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant moving for summary judgment must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true, or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.Christoff v. Union Pac. R.R. Co., 134 Cal.App.4th 118, 120 (2005) (internal citations omitted). When the non-moving party bears the burden of proving a claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact as to an essential element of its case. See Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). If the moving party meets its burden, the burden shifts to the opposing party to set out specific material facts showing a genuine issue for trial. See Anderson, 477 U.S. at 248-49.
A party cannot create a genuine issue of material fact simply by making assertions in its legal papers. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Rather, there must be specific, admissible evidence identifying the basis for the dispute. See id. “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . the court may . . . consider the fact undisputed.” FED. R. CIV. P. 56(e)(2). The Court need not “comb the record” looking for other evidence; it is only required to consider evidence set forth in the moving and opposing papers and the portions of the record cited therein. FED. R. CIV. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). The Supreme Court has held that “[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party].” Anderson, 477 U.S. at 252.
IV. Discussion
The facts set forth below are taken from the parties' respective statements of facts. ECF Nos. 54 (“Def. SUF”), 59 (“Pl. SUF Opp'n”), 60 (“Pl. SUF”), 64 (“Def. Reply SUF”). To the extent that any statements of fact are omitted, the Court concludes they are not material to the disposition of this Motion.
The Court finds that the following material facts are established for trial under FED. R. CIV. P. 56(a) and FED. R. CIV. P. 56(g).
This premises liability matter stems from an April 24, 2018 trip-and-fall incident (the “Incident”) at the Facility. Def. SUF ¶ 1. In or about 2012, C&D hired Ventura Transfer Company (“VTC”) to deliver liquid chemicals to the Facility. Id. ¶ 3. Liquid chemicals are only delivered to a designated area, known as the Unloading Bay. Id. ¶ 4. At all relevant times, the Facility maintained 24-hour gated security. Id. ¶ 5. Visitors were required to check in with security before they were permitted entry into the Facility. Id. The Unloading Bay was and is a restricted area and not open to the public. Id. ¶ 6. Pedestrian foot traffic in the Unloading Bay was limited to drivers for authorized carriers permitted to deliver liquid chemicals to the Facility and/or C&D employees. Id. ¶ 7.
Adler objects that this fact is “vague, argumentative and compound.” Pl. SUF Opp'n ¶ 1. Furthermore, Adler argues that this fact is disputed as incomplete regarding negligence by Alexander Martinez. The Court overrules these objections as meritless. The Court also finds that because the operative complaint contains a single cause of action for premise liability, C&D is not required to address Martinez's conduct that is irrelevant to this Motion.
Adler does not dispute this fact but argues that William Morales is not a competent witness because he was hired after the Incident. However, “[i]n judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Thus, the Court finds the fact undisputed and any determinations regarding William Morales's competency to be left to a factfinder.
See supra n.3.
The Unloading Bay was a flat concrete surface, and above the floor of the bay was a pipe in a reverse L-shape configuration. ECF No. 53-9. The pipe, in conjunction with a sump pump, was installed to direct liquid waste material, rainfall, or chemical spills that accumulated out of the Unloading Bay. Id. ¶ 10. The Pipe was flat against the ground and covered by a yellow steel box at both arms of the L but not at the elbow of the pipe (the “Pipe Cover”). Id. ¶ 9; see also the Photograph.
This exhibit contains a photograph that Adler took on the day of the incident (the “Photograph”). The Court has reviewed this photograph and summarized its observations.
Adler has been a driver employed by VTC since June 12, 1995. Id. ¶ 11. Adler was 68 years-old at the time of the Incident. Id. ¶ 12. Prior to the Incident, Adler made deliveries to the Unloading Bay on at least eleven prior occasions for VTC. Id. ¶ 13. On two of those occasions, Adler trained other VTC employees on how to make deliveries. Id. ¶ 14. It takes approximately one hour to unload the liquid chemicals during the delivery. Id. ¶ 15.
On April 24, 2018, at around 9:30 a.m., Adler arrived at the Facility. Id. ¶ 16. Adler was in the process of moving to turn on valves located on his tanker when his right foot hit the Pipe Cover, causing him to lose his balance and fall. Id. ¶ 17. After the fall, Adler saw that his left leg was bleeding and felt pain in his left rib. Pl. SUF ¶ 50. After the Incident, Adler called the dispatch at VTC, who asked Adler if he needed first aid; Adler declined. Def. SUF ¶ 18. After speaking with dispatch, Adler took photographs of the pipe in the Unloading Bay. Id. ¶ 19. The Unloading Bay has been configured in the manner shown in the photographs taken by Adler since the 2013 to 2014 time period. Id. ¶ 23.
See supra n.2.
The Court has deemed the portions of the fact concerning Martinez irrelevant and has only included the relevant, undisputed portion regarding Adler's injury.
After the fall, Adler completed his delivery. Id. ¶ 20. Adler returned to his vehicle and left the Facility at approximately 11:00 a.m. Id. ¶ 21. Adler drove his vehicle from Victorville back to Long Beach, which took about 2 hours and 15 minutes. Id. ¶ 22.
To C&D's knowledge, there has never been a safety concern or a tripping incident either before or after Adler's fall. Id. ¶ 25. Adler had never sustained any injuries in the Unloading Bay before April 24, 2018. Id. ¶ 26. Adler had also never reported the existence of a dangerous pipe in the Unloading Bay prior to April 24, 2018 to VTC or C&D. Id. ¶ 27.
Adler objects to this fact as “vague, compound and misleading.” Pl. SUF Opp'n ¶ 25. Without any further explanation for the basis of this objection, the Court finds the objections to be meritless. In addition, Adler disputes the fact on the basis that “there was no accounting or incident report for Adler's occurrence at [C&D], and no employer action against Mr. Martinez for failing make the report about the incident, which eliminates any rigor and all credibility in such a system.” Id. C&D has produced its accident reports for the period of 2015 to 2018. ECF No. 66 ¶ 2. None of these reports include any mentions of incidents involving the pipe in the Unloading Bay. Id. As such, C&D has satisfied its burden. The burden then shifts to Adler to set out specific material facts showing a genuine issue for trial. See Anderson, 477 U.S. at 248-49. The Court finds that Adler has not created a genuine issue of material fact simply by making assertions that C&D's system lacks credibility, and thus, the fact is established as undisputed. See S.A. Empresa, 690 F.2d at 1238.
B. The Court overrules C&D's evidentiary objections.
As a threshold matter, the Court must consider C&D's evidentiary objections to the Declaration of David Hoffman offered in support of Adler's Opposition. See ECF No. 64 (“Hoffman Declaration” or “Hoffman Decl.”). C&D objects to three separate excerpts on the basis of hearsay: (1) pg. 4, ¶ 13: ln: 10-22; (2) pgs. 4-5, ¶ 14: ln: 23-2; and (3) and pgs. 4-5, ¶ 14: ln: 23-2. Id.
The Court finds that C&D's objections to the form of the Hoffman Declaration excerpts are not proper for consideration at summary judgment, and as such, OVERRULES the objections to hearsay. The Ninth Circuit has recognized that “a party does not 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.” Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). In other words, when evidence is not presented in admissible form at summary judgment, but could be later presented in an admissible form at trial, a court may still consider the evidence for the purposes of summary judgment. Id. at 1037; see also Celotex, 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”).
For these reasons, the Court OVERRULES C&D's evidentiary objections at this stage in the proceedings. C&D may resubmit evidentiary objections at the time of trial.
C. Having denied Adler's motion to amend the Civil Trial Order and file a first amended complaint, the Court only considers a single cause of action for premises liability on this Motion.
On October 6, 2022, Adler filed a Motion to Amend the Complaint, which the Court denied on November 2, 2022. ECF Nos. 11, 71. In its Order, the Court held that Adler may only proceed with a single cause of action for premises liability.
At the November 10 hearing, Adler's counsel stated his intent to file a Motion for Reconsideration on the Court's Order (ECF No. 71). On November 14, 2022, Adler filed a Motion for Reconsideration that is set for hearing on January 12, 2023. ECF No. 80.
While a substantial portion of Adler's Opposition (ECF No. 58) and SUF (ECF No. 60) concern Alexander Martinez's (“Martinez”) conduct during the Incident, these facts and arguments are not material to a claim for premises liability. See Nat'l Ass'n of Optometrists & Opticians, 682 F.3d at 1147 (finding that material facts are those that may affect the outcome of the case).
Because a Court can only consider the material facts in dispute on a motion for summary judgment, the Court will not consider any facts or arguments pertaining to Martinez's conduct.
D. C&D is not entitled to summary judgment on the premises liability claim.
C&D argues that Adler's single cause of action for premises liability should be dismissed because Adler has not met his burden of proving (1) that there was a dangerous condition on the premises and (2) that C&D had a duty to warn or remedy the pipe on which Adler allegedly tripped. Mot. at 8. Adler argues in response that the pipe was a dangerous condition that C&D could have easily remedied but ignored. Opp'n at 22.
Under California law, the elements for premises liability are: “a legal duty of care, breach of that duty, and proximate cause resulting in injury.” Kesner v. Superior Ct., 1 Cal. 5th 1132, 1158 (Cal. 2016). Courts will generally impose a duty of care upon a defendant who knows of “an artificial condition upon his premises which he should foresee exposes his business visitors to an unreasonable risk, and who has no basis for believing that they will discover the condition or realize the risk involved.” Chance v. Lawry's, Inc., 58 Cal. 2d 368, 373 (Cal. 1962). Courts have recognized two separate duties of care: (1) the duty to warn of the dangerous condition; and (2) the duty to remedy that danger. California courts have recognized that while the “obviousness of a danger may obviate the duty to warn of its existence,” a duty to remedy may still exist “if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it).” Martinez v. Chippewa Enters., Inc., 121 Cal.App.4th 1179, 1184 (Ct. App. 2004).
As discussed below, a reasonable jury could find that the condition caused by the pipe was dangerous. Because it was open and obvious, however, C&D had no duty to warn and is entitled to summary judgment on that theory. But California law dictates that the fact that the condition was open and obvious and that C&D did not have a duty to warn does not mean that C&D did not have a duty to remedy the dangerous condition. C&D failed to meet its burden to show that there was no genuine issue of material fact with respect to this duty, and therefore is not entitled to summary judgment on that theory.
1. There is a genuine issue of disputed fact as to whether the pipe constituted a dangerous condition on the premises.
C&D argues that Adler has not met his burden of establishing that the pipe constituted a dangerous condition because “mere speculation or conjecture that a dangerous condition was present . . . is insufficient.” Mot. at 17. In his Opposition, Adler argues that his expert evidence raised triable issues of fact as to whether the Pipe Cover was dangerous. Opp'n at 3.
In its Reply, C&D argues that Adler has failed to address that the Pipe Cover was a “dangerous condition.” Reply at 10. However, the Court finds that Adler has responded to C&D arguments through his discussion of his expert's findings. See Opp'n at 3.
In the Opposition, Adler specifically cites to the expert report of Enrique Rivera (“Rivera”), finding that “[n]o designing engineer would design an above ground plumbing system that created a dangerous condition.” Id. (citing ECF No. 58-4 (“Rivera Expert Report”)). In this same report, Rivera also observes that the Pipe Cover “had faded over time and had not been maintained in a safe condition by Defendant, ultimately creating a dangerous condition of the subject area.” Rivera Expert Report at 9. Adler has met his burden of showing that there is a genuine issue of material fact as to whether the Pipe Cover was a dangerous condition. See S.A. Empresa, 690 F.2d at 1238.
In its Reply, C&D objects to the Rivera Expert Report on the basis that it “fails to set forth admissible facts based on personal knowledge to support his conclusions and opinions.” Reply at 11. However, under Fed.R.Evid. 602, an expert is not required to base his opinion on personal knowledge of the facts. Accordingly, the Court overrules this objection and considers the Rivera Expert Report on summary judgment.
2. There is no genuine issue of disputed fact as to whether C&D had a duty to warn Adler of the pipe.
C&D argues that it did not have a duty to warn of the pipe that Adler tripped over because it was open and obvious. Mot. at 18. Adler does not address this argument in his Opposition.
“A landowner generally does not have a duty to warn against open and obvious dangers, because the invitee will assumingly perceive that which is obvious.” Blodgett v. B.H. Dyas Co., 4 Cal. 2d 511, 513 (1935) (“There is no duty to give any warning in broad daylight of the presence of a stairway and persons must use their eyes to protect themselves from such obvious dangers.”). A danger is considered open and obvious if “a person could reasonably be expected to see it” such that “the condition itself serves as a warning.” Daniely v. Goldmine Ski Assocs., 218 Cal.App.3d 111, 121-22 (1990).
A Court may consider photographs at the summary judgment stage to determine whether a condition is open and obvious. Kasparian v. AvalonBay Communities, Inc., 156 Cal.App.4th 11, 24 (Ct. App. 2007) (collecting cases); Caloroso v. Hathaway, 122 Cal.App.4th 922, 929 (Ct. App. 2004) (finding that reasonable minds considering the photographs could only reach one conclusion that the sidewalk was not dangerous). However, a court may not find a fact to be undisputed where “reasonable minds might differ as to whether the photographs correctly depict the alleged defect and the surrounding circumstances or when the photographs lack any probative value on the issue of whether the defect was open and obvious.” Kasparian, 122 Cal.App.4th at 26.
Here, C&D submits in support of its Motion, an image that Adler took of the pipe on the day of the Incident. ECF No. 53-9 (the “Photograph”). At his deposition, Adler verified that the Photograph depicts the area where he fell. Id. at 120:11-13. The picture is taken from a bird's-eye view, showing the section of the Unloading Bay surrounding the pipe, and a blue “x”, marking where Adler tripped. With the submission of the Photograph, C&D has satisfied its burden of showing that the Pipe Cover was open and obvious. The Pipe Cover is clearly raised above the ground such that “a person could reasonably be expected to see it.” Daniely, 218 Cal.App.3d at 121-22. Like in Blodgett, the Incident occurred in broad daylight and Adler would be expected to “use [his] eyes to protect [himself from such obvious dangers.” 4 Cal. 2d at 513.
The Court finds that C&D has satisfied its burden of pointing out that Adler has failed to present any genuine issue of material fact as to the duty to warn. Because Adler has “fail[ed] to properly address [C&D's] assertion of fact . . . the court may . . . consider the fact undisputed.” FED. R. CIV. P. 56(e)(2).
3. There is a genuine issue of disputed fact as to whether C&D had a duty to remedy the pipe's condition.
Next, the Court considers whether C&D had a separate duty to remedy the pipe's condition, given the risks it posed. California courts have recognized that:
[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it. The modern and controlling law on this subject is that “although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability ....Martinez, 121 Cal.App.4th at 1184. “Whether such a duty existed depends upon a number of as yet unresolved factors, such as the foreseeability of harm, defendant's advance knowledge [] of the dangerous condition, and the burden of discharging the duty.” Id. at 1185.
In its Motion, C&D argues that it had no duty to warn or remedy the Pipe Cover because it was open and obvious. Mot. at 18-19. However, precedent dictates that the openness and obviousness of a condition may excuse the duty to warn, the duty to remedy may still exist if the danger “is foreseeable . . . despite the fact that it is obvious.” Martinez, 121 Cal.App.4th at 1184. C&D makes only a passing reference to the duty to remedy in its Motion and does not explicitly set forth the test. It merely states in a conclusory fashion that “no reasonable factfinder could conclude that it was foreseeable the [Pipe Cover] would cause injury despite its obvious nature.” Mot. at 20. California law requires more. C&D “must establish that an element of the claim cannot be established, by presenting evidence that [Adler] does not possess, and cannot reasonably obtain, needed evidence.” Christoff, 134 Cal.App.4th at 120. C&D's conclusory statement does not meet this standard.
At the hearing, C&D addressed this deficiency and pointed the Court to Krongos v. Pac. Gas & Elec. Co. for the proposition that if a danger is so obvious, a landowner is under no further obligation to remedy the danger. 7 Cal.App.4th 387, 393 (1992). However, C&D conceded that this is not true in all cases, especially where the risk of injury is foreseeable. Here, the Court finds that a reasonable factfinder could determine that the pipe cover was not so open and obvious and presented a foreseeable risk of injury. As such, C&D has not met its burden on summary judgment of demonstrating the absence of a genuine issue of material fact for trial. Celotex, 477 U.S. at 323.
For these reasons, the Court DENIES the Motion as it relates to the premise liability claim.
E. The Court denies Adler's request for sanctions against C&D.
In his Opposition, Adler argues that the Court should issue sanctions against C&D for filing a misleading Motion and violating the California Mediation privilege. Opp'n at 23. C&D responds that Adler's request is without merit. Reply at 13.
1. C&D has not properly filed a separate motion for sanctions.
Under Rule 11 of the Federal Rules of Civil Procedure, “[a] motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b).” FED. R. CIV. P. 11(c)(2). The rule provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief contained in another motion. FED. R. CIV. P. 11 advisory committee's note to 1993 amendment.
C&D has not properly filed a separate motion for sanctions. However, despite this procedural failure, the Court has reviewed C&D's request and finds it meritless for the reasons outlined below.
2. C&D did not file a misleading Motion warranting sanctions.
Under 28 U.S.C. § 1927, “[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” For the Court to impose sanctions, the party must “knowingly or recklessly raise[ ] a frivolous argument, or argue[ ] a meritorious claim for the purpose of harassing an opponent.” B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1107 (9th Cir. 2002).
Adler takes issue with the following fact offered by C&D, claiming that it “is too terse by half”: “Plaintiff claims he was in the process of moving to turn on valves located on his tanker when his right foot hit the metal cover of the pipe, causing him to lose his balance and fall.” Opp'n at 23. Adler continues that “[C&D] [sic] should have expounded on the one picture it supplied in evidence to tell the true story about what happened to Paul Adler.” Id. Adler offers no further indication of what C&D should have specifically included “to tell the true story.”
In the absence of any specific guidance as to what Adler believes is misleading, the Court must infer the basis for Adler's request. Given Adler's substantial focus on Martinez throughout the Opposition, it appears that Adler believes C&D has misled the Court by declining to address Martinez in its Motion. However, as the Court iterated above, the operative Complaint does not contain a cause of action for employee negligence, thereby rendering facts concerning Martinez irrelevant. For the purposes of this Motion, C&D is not expected to address facts concerning anything other than the premises liability claim, which is the single cause of action in this suit.
For these reasons, the Court finds that C&D's Motion is not misleading and does not warrant the imposition of sanctions.
3. C&D's disclosure of communications during mediation does not warrant sanctions.
Adler argues that C&D's references to the mediation on pages 9-10 of its Motion were violations of the California Mediation privilege and submitted “as a pretext to impugn [Adler's] counsel.” Opp'n at 23. C&D maintains that these references were made only to establish that C&D attempted to confer with Adler's counsel in anticipation of this Motion during the mediation. Reply at 13.
The Court has the inherent power to issue sanctions in order to “protect[] the due and orderly administration of justice and in maintaining the authority and dignity of the court.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980). “[A]n award of sanctions under . . . the district court's inherent authority requires a finding of recklessness or bad faith.” Barber v. Miller, 146 F.3d 707, 711 (9th Cir. 1998).
Here, C&D conducted the meet-and-confer for this Motion during the mediation. Mot. at 9. Thus, while the Court acknowledges that C&D has revealed communications that took place during mediation, the Court finds no evidence that this discussion was offered in bad faith, as it appears to have been offered in aid of explaining whether and how C&D complied with this Court's requirements with respect to Local Rule 7-3. While it may not have been proper for C&D to disclose such specific allegations regarding Adler's counsel, the discussion in the Motion certainly does not rise to the level of recklessness or bad faith.
Accordingly, the Court finds that Adler has not established that sanctions are warranted and DENIES the request.
V. Conclusion
In light of the foregoing reasons, the Court DENIES the Motion for Summary Judgment as it relates to Adler's claim for premises liability.
IT IS SO ORDERED.