Susan Neuberg v. Costco Wholesale Corporation and Carl Barrio

CONCLUSION AND ORDER In lieu of continuing the trial as requested, the Court orders as follows:

· The Final Status Conference and Trial are vacated.

· The Court sets a Trial Readiness Conference on October 15, 2026 at 8:30 A.M. in Department 207.

· The parties shall meet and confer in person, or remotely, on or before September 18, 2026 to prepare a comprehensive discovery plan that identifies ALL outstanding non-expert and expert discovery and details on how the parties will complete/resolve such discovery in order to prepare for trial or other resolution, without Court intervention.

· The parties shall file their discovery plan on or before October 8, 2026.

· Plaintiffs shall effectuate service of the summons and complaint on Defendants Bryan Ray and Steven Gardner-Rivera, or if service has been perfected, Plaintiffs shall file the attendant proofs of service, on or before September 18, 2026.

As such, the Court sets an Order to Show Cause re Sanctions against Plaintiffs for failure to serve the summons and complaint on October 15, 2026 at 8:30 A.M. in Department 207.

If Plaintiffs fail to perfect service of the summons and complaint, the Court may dismiss Defendants Bryan Ray and Steven Gardner-Rivera as permitted under the Code of Civil Procedure and the California Rules of Court.

Defendants shall provide notice of the Court's Orders and file the notice with a proof of service forthwith.

DATED: August 27, 2026 ______/s/_____________________ Michael E. Whitaker Judge of the Superior Court

RULING DEPARTMENT | 207 | HEARING DATE | August 27, 2026

| CASE NUMBER |

| MOTION | Motion for Summary Adjudication | MOVING PARTIES | Defendants Costco Wholesale Corporation and Carl Barrio | OPPOSING PARTY | Plaintiff Susan Neuberg | MOVING PAPERS: Notice of Motion and Motion for Summary Adjudication; Memorandum of Points and Authorities Evidence and Exhibit List Separate Statement of Undisputed Material Facts OPPOSITION PAPERS: Opposition to Motion for Summary Adjudication; Memorandum of Points and Authorities REPLY PAPERS: Reply to Plaintiff's Opposition to Motion for Summary Adjudication

BACKGROUND This case arises from a slip and fall in a grocery store.

On April 3, 2025, Plaintiff Susan Neuberg ("Plaintiff") filed suit against Defendants Costco Wholesale Corporation and Carl Barrio ("Defendants") alleging two causes of action for premises liability and negligent hiring.

On June 4, 2026, the Court granted Plaintiff's motion for a trial preference, and set the trial for September 28, 2026.

Defendants now move for summary adjudication of the following issues: 1. Issue No. 1: Plaintiff has failed to provide any evidence and cannot reasonably obtain evidence showing that Costco is guilty of oppression, fraud or malice; and 2. Issue No. 2: Plaintiff has failed to provide any evidence and cannot reasonably obtain evidence showing that Barrio is guilty of oppression, fraud or malice.

Plaintiff opposes the motion and Defendants reply.

LEGAL STANDARDS - MOTION FOR SUMMARY JUDGMENT/ADJUDICATION "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." ¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (hereafter Aguilar).)

¿"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)

Further, "the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility." (Aguilar, supra, 25 Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 ["Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party"].)

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See Code Civ. Proc., Sec. 437c, subd. (f)(1).)

"A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Ibid.)

A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See Code Civ. Proc., Sec. 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)

Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See Code Civ. Proc., Sec. 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.)

Additionally, in line with Aguilar, "[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted." (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

DISCUSSION 1. PROCEDURAL ISSUES Code of Civil Procedure section 437c provides that notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing.

If service is by mail, that time frame is increased by 5 days.

For electronic service, that period is increased by two court days. (Code Civ. Proc., Sec. 437c, subd. (a)(2).)

Further the motion shall be heard no later than 30 days prior to trial. (Code Civ. Proc., Sec. 437c, subd. (a)(3).)

Here, the proof of service indicates Defendants filed and personally served the notice and supporting papers on June 8, 2026, with a noticed hearing date of August 25, 2026, which provides only seventy-eight (78) days' notice.

On July 8, 2026, Defendants unilaterally continued the hearing on their Motion for Summary Adjudication to the current hearing date of August 27.

Although a Court may shorten the requirement that the motion be heard at least 30 days prior to trial for good cause shown, the Court does not have jurisdictional authority to shorten the minimum notice period. (Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 764.)

Further, the problem of insufficient notice cannot be cured by simply continuing the hearing date to a date that would have been at least 81 days after the initial notice, because the original notice was fundamentally defective, in violation of Plaintiff's Due Process rights. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.)

In reply, Defendants cite to Lackner v. North (2006) 135 Cal.App.4th 1188 as standing for the proposition that the notice period runs from the date of original service to the continued hearing date.

But in Lackner, the party opposing the motion requested and received the requested hearing continuance to a date that was more than the requisite time after the initial service date but less than the requisite time after the continuance was granted.

Under those circumstances, the Court held that the opposing party had the requisite notice.

By contrast, here, not only was Plaintiff not given the requisite 81 days' notice on June 8 when the motion was noticed for August 25, Plaintiff also not given the requisite 81 days' notice a month later on July 8, 2026, when Defendants unilaterally continued the hearing date by only two days.

Moreover, even if the Court were to accept Defendants' interpretation of Lackner, Defendants have still not provided Plaintiff the required eighty-one (81) days' notice, as the current hearing date of August 27 is only eighty (80) days after the June 8, 2026 service date.

Therefore, Defendants have not provided Plaintiff the required statutory 81 days of notice of the hearing on the motion for summary adjudication, and the problem cannot be cured at this point to provide Plaintiff the requisite 81 days of notice anew and have the motion heard prior to trial, nor can the preference trial be continued to accommodate the motion.

CONCLUSION AND ORDER Therefore, the Court denies Defendant's motion for summary adjudication on procedural grounds for lack of notice under Code of Civil Procedure section 437c.

Defendants shall provide notice of the Court's ruling and file the notice with a proof of service forthwith.

DATED: August 27, 2026 _____/s/______________________ Michael E. Whitaker Judge of the Superior Court Case Number: 25SMCV05515 Hearing Date: August 27, 2026 Dept: 207 TENTATIVE RULING DEPARTMENT | 207 | HEARING DATE | July 7, 2026 - continued to August 27, 2026 | CASE NUMBER | 25SMCV05515 | MOTION | Monetary Sanctions | MOVING PARTY