City of West Sacramento v. R & L Business Management ( 2019 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 ----oo0oo---- 8 9 CITY OF WEST SACRAMENTO, No. 2:18-CV-00900 WBS EFB 10 CALIFORNIA; and PEOPLE OF THE STATE OF CALIFORNIA, 11 Plaintiffs, MEMORANDUM AND ORDER RE: 12 PLAINTIFF’S MOTION FOR v. SUMMARY JUDGMENT AND 13 DEFENDANT NICK E. SMITH’S R AND L BUSINESS MANAGEMENT, a MOTION TO CONTINUE SUMMARY 14 California corporation, f/k/a JUDGMENT STOCKTON PLATING, INC., d/b/a 15 CAPITOL PLATING, INC., a/k/a CAPITOL PLATING, a/k/a CAPITAL 16 PLATING; CAPITOL PLATING, INC., a dissolved California 17 corporation; et al., 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiffs City of West Sacramento, California (the 22 “City”) and the People of the State of California brought this 23 action against defendants R&L Business Management, et al., to 24 address toxic levels of soil and groundwater contamination in the 25 environment within the City. The court now considers plaintiffs’ 26 motion for summary judgment and defendant Smith’s motion to 27 continue plaintiffs’ motion under Federal Rule of Civil Procedure 28 1 56(f). 2 I. Factual and Procedural Background 3 This court described much of the factual and procedural 4 background to this lawsuit in its prior orders. (See Docket Nos. 5 18, 33, 44, and 63.). The City now moves for partial summary 6 judgment on its CERCLA,1 RCRA,2 Gatto Act,3 public nuisance, and 7 declaratory relief claims against the business, R&L Business 8 Management, aka/fka Stockton Plating, Inc. (“R&L”), and the 9 Estate of Nick Smith, Deceased (“Smith”). (Pls.’ Mot. for Summ. 10 J. at 2 (Docket No. 95).) The City also seeks partial summary 11 judgment against John Clark (collectively with R&L and Smith, 12 “Defendants”) on its CERCLA, public nuisance, and declaratory 13 relief claims. (Id.) In turn, Smith moves to continue hearing 14 on plaintiffs’ motion for summary judgment under Federal Rule of 15 Civil Procedure 56(d) to allow Smith to depose Dr. Ann Farr. 16 (Decl. of Michael Guasco (“Guasco Decl.”) (Docket No. 105-1).) 17 II. Defendant Smith’s Motion for Continuance 18 “A district court should continue a summary judgment 19 motion upon a good faith showing by affidavit that the 20 continuance is needed to obtain facts essential to preclude 21 summary judgment.” State of Cal., on Behalf of Cal. Dep't of 22 Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 23 1 “CERCLA” refers to the Comprehensive Environmental 24 Response, Compensation, and Liability Act, CERCLA §§ 101–405, 42 U.S.C. §§ 9601–9675. 25 26 2 “RCRA” refers to the Resource Conservation and Recovery Act, RCRA §§ 1002–11011, 42 U.S.C. §§ 6901–6992k. 27 3 “Gatto Act” refers to Cal. Health & Saf. Code §§ 25304– 28 25304.8. 1 1998) (citing McCormick v. Fund Am. Cos., Inc., 26 F.3d 869, 885 2 (9th Cir.1994)).4 A party requesting a continuance pursuant to 3 Rule 56(d) therefore “must show (1) that they have set forth in 4 affidavit form the specific facts that they hope to elicit from 5 further discovery, (2) that the facts sought exist, and (3) that 6 these sought-after facts are “essential” to resist the summary 7 judgment motion.” Id. 8 Courts usually employ a “generous approach toward 9 granting [Rule 56(d)] motions.” Berkeley v. Home Ins. Co., 68 10 F.3d 1409, 1414 (D.C. Cir. 1995); see also Burlington N. Santa Fe 11 R. Co. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 12 323 F.3d 767, 773 (9th Cir. 2003). Summary judgment is 13 appropriate “only where [further] discovery would be 14 ‘fruitless.’” Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 15 2004). Indeed, a “continuance of a motion for summary judgment 16 for purposes of discovery should be granted almost as a matter of 17 course” unless “the non-moving party has not diligently pursued 18 discovery of the evidence.” Wichita Falls Office Assocs. v. Banc 19 One Corp., 978 F.2d 915, 919 n.4 (5th Cir. 1992); see also 20 Burlington, 323 F. 3d at 773. 21 Notably, “the Supreme Court has restated the rule as 22 requiring, rather than merely permitting, discovery ‘where the 23 nonmoving party has not had the opportunity to discover 24 information that is essential to its opposition.’” Metabolife 25 26 4 “Rule 56(d) was formerly Rule ‘56(f),’ and the cases 27 that interpret Rule 56(f) apply to current Rule 56(d).” Slama v. City of Madera, No. 1:08-CV-810 AWI GSA, 2012 WL 1067198, at *2 28 (E.D. Cal. Mar. 28, 2012). 1 Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (citing 2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, (1986)). 3 The court therefore keeps in mind that “[b]ecause experts had not 4 yet been disclosed,” [defendant Smith] “was unable to previously 5 depose Dr. Farr.” (Guasco Decl. at 2.) 6 (1) Affidavits 7 To comply with Rule 56(d), defendant must “submit 8 affidavits setting forth the particular facts expected from 9 further discovery.” Brae Transp., Inc. v. Coopers & Lybrand, 790 10 F.2d 1439, 1443 (9th Cir. 1986). “References in memoranda and 11 declarations to a need for discovery” do not suffice. Id. 12 Defendant Smith offers the declaration of his attorney, 13 Michael C. Guasco. Mr. Guasco therein identifies several facts 14 he expects to discover if given more time, including the source 15 and bases of the opinions of Dr. Anne Farr. Because defendant 16 Smith has “attached a detailed sworn declaration from counsel 17 explaining the need for additional time and setting forth 18 particular facts expected to be obtained” from the experts, 19 defendant has satisfied the affidavit requirement under Rule 20 56(d). See TMJ Inc., v. Nippon Tr. Bank, 16 F. App'x 795, 797 21 (9th Cir. 2001). 22 (2) Existence of Facts Sought 23 Under Rule 56(d), the party requesting a continuance 24 must show that the facts sought exist. “Denial of a Rule [56(d)] 25 application is [therefore] proper where it is clear that the 26 evidence sought is almost certainly nonexistent or is the object 27 of pure speculation.” Terrell v. Brewer, 935 F.2d 1015, 1018 28 1 (9th Cir.1991). 2 This court finds no reason to believe that the facts 3 sought do not exist. Dr. Farr presumably relied on specific 4 facts to reach her conclusions. Defendant therefore satisfies 5 the existence requirement. 6 (3) Essentialness of Facts Sought 7 “[T]he party seeking the continuance must show that it 8 lacks the ‘facts essential’ to resist the summary judgment 9 motion.” McCormick, 26 F.3d at 885. The moving party must 10 explain why those facts would preclude summary judgment. Tatum 11 v. City & Cty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 12 2006). 13 Here, defendant Smith seeks to develop facts essential 14 to challenge plaintiff’s summary judgment motion. For example, 15 under CERCLA, plaintiff must show that defendant owned or 16 operated facility “at the time of disposal” of a hazardous 17 substance at the facility. 42 U.S.C. § 9607(a)(2). Plaintiffs 18 rely on Dr. Farr to determine the timing of the release of the 19 hazardous substance as it relates to defendant R&L Business 20 Management. (Decl. of Anne Farr (“Farr Decl.”) at 5-9 (Docket 21 No. 107-4).) It is unclear whether Dr. Farr “can or will opine 22 as to when any disposal may have occurred” during the time 23 defendant Smith owned the property. (Def. Smith Opp. to Pls.’ 24 Mot. for Summ. J. at 5-6 (Docket No. 103).) Because defendant 25 Smith “argue[s] that [plaintiff] has not adequately demonstrated 26 causation with regards to [his] CERCLA liability,” “further 27 expert discovery” would help defendant raise a genuine issue of 28 material fact. Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist., No. 210CV290DAEBGM, 2016 WL 3613278, at *3 (D. Ariz. Feb. 22, 2016). Defendants therefore satisfy the essentialness requirement under Rule 56(d). ° IT IS THEREFORE ORDERED that defendant Smith’s Motion for Continuance of Summary Judgment (Docket No. 103) be, and the same hereby is, GRANTED. Defendant Smith shall complete the deposition of Dr. ° Farr on or before November 1, 2019. Defendant Smith shall submit his opposition to Plaintiffs’ Motion for Summary Judgment, and any other defendant may amend its response to the motion, on or before November 15, 2019. Plaintiffs shall submit their reply to Defendant Smith’s opposition on or before November 22, 2019. The hearing on plaintiffs’ Motion for Summary Judgment (Docket No. 95) is CONTINUED to December 2, 2019, at 1:30 p.m. re IT IS SO ORDERED. "| pated: October 24, 2019 he bloom HK Ld. 18 WILLIAM B. SHUBB 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28