Opinion

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 GRANTING PLAINTIFF’S 13 v. EX PARTE APPLICATIONS (1) TO STRIKE “JOINT” STATEMENT OF 14 COSTCO WHOLESALE UNDISPUTED FACTS, AND (2) FOR CORPORATION, a Washington 15 LEAVE TO FILE A SUR-REPLY corporation; and DOES 1 through 20, 16 Defendants. (ECF Nos. 59-2, 60, 61) 17 18 Presently before the Court are Plaintiff Luisa Ramirez’s Ex Parte Applications to 19 Strike Joint Statement of Undisputed Facts Filed by Defendant Costco Wholesale 20 Corporation [ECF 59] (“Ex Parte App. to Strike,” ECF No. 60) and for Leave to File a Sur- 21 Reply to Defendant Costco Wholesale Corporation’s Reply Memorandum in Support of 22 Defendant’s Motion for Summary Judgment (“Ex Parte App. for Sur-Reply,” ECF No. 23 61). Defendant filed oppositions to each of Plaintiff’s Ex Parte Applications on October 8, 24 2025.1 (See ECF No. 62 (“Sur-Reply Opp’n”), 63 (“Strike Opp’n”).) After first addressing 25 26 1 Pursuant to Section III.C.3 of the undersigned’s Standing Order for Civil Cases, “[i]f a party 27 intends to oppose an ex parte application, that party must file a notice as soon as practicable and within twenty-four (24) hours of the filing of the ex parte application stating their intent to oppose the ex parte 28 1 Defendant’s arguments concerning the propriety of ex parte relief in this instance, the 2 Court addresses each of Plaintiff’s Ex Parte Applications in turn. 3 I. Propriety of Ex Parte Relief 4 As an initial matter, Defendant questions whether Plaintiff’s requests are 5 appropriately brought ex parte. (See Sur-Reply Opp’n at 2, 3–4; Strike Opp’n at 5–6.) 6 Defendant is correct that, “[i]n our adversary system, ex parte motions are disfavored.” 7 Ayestas v. Davis, 584 U.S. 28, 40–41 (2018). Although “opportunities for legitimate ex 8 parte applications are extremely limited,” Maxson v. Mosaic Sales Sols. U.S. Operating 9 Co., No. 2:14-CV-02116-APG, 2015 WL 4661981, at *1 (D. Nev. July 29, 2015) (quoting 10 In re Intermagnetics Am., Inc., 101 B.R. 191, 193 (C.D. Cal. 1989)), “they have their 11 place.” See Ayestas, 584 U.S. at 40–41. Specifically, ex parte relief is appropriate where 12 the moving party can “show that the moving party’s cause will be irreparably prejudiced if 13 the underlying motion is heard according to regular noticed motion procedures” and “that 14 the moving party is without fault in creating the crisis that requires ex parte relief, or that 15 the crisis occurred as a result of excusable neglect.” Mission Power Eng’g Co. v. Cont’l 16 Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). 17 The hearing on Defendant’s Motion for Summary Judgment is scheduled for 18 November 13, 2025. (See ECF No. 45.) Accordingly, neither the Court nor the Parties 19 have the luxury of the leisurely briefing schedule that a properly noticed motion to strike 20 or for leave to file a sur-reply would entail and that would provide Plaintiff’s requested 21 relief too late to be of any use. The Court is also sufficiently persuaded that Plaintiff is 22 without fault in creating the circumstances that have necessitated ex parte relief. The Court 23 therefore concludes that Plaintiff’s Ex Parte Applications are not improper. 24 / / / 25 26 27 its rights to strike Defendant’s untimely oppositions—which span nearly 200 pages of argument, declarations, and exhibits and, consequently, have required the Court to expend significant additional time 28 1 II. Plaintiff’s Ex Parte Applications 2 A. Ex Parte Application to Strike “Joint” Statement 3 Plaintiff contends that Defendant’s “Joint Statement of Undisputed Material Facts 4 Pertaining to Defendant Costco Wholesale Corporation’s Motion for Summary Judgment, 5 or in the Alternative, Partial Summary Judgment” (“Joint Statement,” ECF No. 59-2), 6 “does not comply with chambers rules of Fed. R. Civ. P. 11, is not the product of a 7 meaningful meet and confer effort, and was not signed by Plaintiff.” (See Ex Parte App. 8 to Strike at 1.) Plaintiff therefore “seeks an order striking the purported Joint Statement, 9 requiring the parties to meet and confer, and setting a new deadline for filing a conforming 10 Joint Statement that reflects the intention of both parties.” (See id. at 2.) Defendant 11 opposes on the grounds that Plaintiff fails to “identify any rule Plaintiff claims was 12 violated.” (See Strike Opp’n at 7.) 13 Section III.B.6 of the undersigned’s Standing Order for Civil Cases provides that 14 “the parties must meet and confer to arrive at a joint statement of undisputed material 15 facts.” “[O]ne of the reasons the undersigned requires the parties to file a joint statement 16 of undisputed facts is to assist both the parties and the court in ‘cutting to the chase,’ so to 17 speak, about whether there are genuine issues of material fact (which is the applicable 18 standard on a motion for summary judgment).” See Morrow v. City of Oakland, No. C 11- 19 02351 LB, 2013 WL 841280, at *2 (N.D. Cal. Mar. 6, 2013). The Joint Statement 20 Defendant filed in this case is “joint” in name only—it was filed unilaterally, (see ECF No. 21 59-3 ¶ 12), without the signature of Plaintiff’s counsel, (see ECF No. 59-2 at 8), and 22 contains facts to which one Party objects and/or contends are “immaterial.” (See generally 23 ECF No. 59-2.) Indeed, Defendant admits as much when it argues that the Joint Statement 24 “provid[es] a single reference for each Party’s asserted undisputed material facts regarding 25 the Motion for Summary Judgment, together with each Party’s response to the other’s 26 asserted facts.” (See Strike Opp’n at 7.) Nonetheless, Defendant indicates its belief that 27 this document “is potentially helpful to the Court” and that, “[i]f the Court does not find 28 the Joint Statement helpful, the Court can of course disregard it.” (See id.) 1 Defendant has, essentially, filed a separate statement of facts. If the Court found 2 such filings helpful, it would request them. Instead, the Court has explicitly instructed 3 parties not to file them, see Standing Order for Civil Cases § III.B.6 (“Separate Statements 4 of Fact may not be filed unless leave of Court has been granted.” (emphasis in original)), 5 and has instead mandated parties to meet and confer to arrive at a jointly acceptable 6 statement of undisputed material facts. Like Plaintiff, the Court does not appreciate that 7 Defendant only sent an initial draft of the filing to Plaintiff’s counsel at 5:45 p.m. two days 8 before the filing deadline. (See ECF No. 63-1 at 7–29.) Further, the ensuing meet-and- 9 confer efforts—which appear to have been conducted entirely over the course of email, 10 (see generally ECF No. 63-1)—clearly were not “sufficient,” (see id. at 167), as they did 11 not result in an actual joint filing.2 Failure to comply in good faith with the Court’s 12 directive is “unacceptable” and “disappoint[ing],” see Quidel Corp. v. Siemens Med. Sols. 13 USA, Inc., 612 F. Supp. 3d 1131, 1136 (S.D. Cal. 2020), and “future failures to abide by 14 the undersigned’s Standing Order for Civil Cases may result in the imposition of 15 sanctions.” See Goro v. Flowers Foods, Inc., No. 17-CV-2580 TWR (JLB), 2021 WL 16 4295294, at *1 n.2 (S.D. Cal. Sept. 21, 2021) (quoting Kurin, Inc. v. Magnolia Med. Techs., 17 Inc., 473 F. Supp. 3d 1117, 1125 n.1 (S.D. Cal. 2020)); Gaxiola v. United States, No. 19- 18 CV-947 TWR (AGS), 2021 WL 4168181, at *2 n.1 (S.D. Cal. Sept. 14, 2021) (same). 19 Accordingly, the Court GRANTS Plaintiff’s Ex Parte Application to Strike and 20 STRIKES Defendant’s Joint Statement, which is filed at ECF No. 59-2. To aid the Court 21 and the Parties in preparation for the November 13, 2025 hearing, the Parties SHALL 22 MEET AND CONFER in person on or before 5:00 p.m. on October 21, 2025, and 23 24 25 26 2 Ideally, of course, Plaintiff would have read the undersigned’s Standing Order for Civil Cases and been aware of the requirement, (see ECF No. 63-1 at 32); however, because the Motion for Summary 27 Judgment was filed by Defendant, ultimately it was incumbent on Defendant to coordinate the filing of a Joint Statement of Undisputed Facts sufficiently in advance of the filing deadline or, failing that, to request 28 1 Defendant SHALL FILE a fulsome and truly joint statement of undisputed material facts 2 on or before 5:00 p.m. on October 23, 2025. 3 B. Ex Parte Application for Leave to File Sur-Reply 4 Plaintiff also seeks the Court’s leave “to file a sur-reply to address Costco’s 5 ambitious and novel evidentiary objection designed to suppress in its entirety the 6 deposition of Costco employee Elizabeth Escobedo,” (see Ex Parte App. for Sur-Reply at 7 1), which were first raised in Defendant’s reply brief. (See ECF No. 59 at 9–10.) 8 Defendant responds that “the inclusion of evidentiary objections in a Reply brief cannot be 9 ‘a valid reason for such additional briefing’ . . . as it is simply a routine circumstance 10 already contemplated by the Standing Order.” (See Sur-Reply Opp’n at 5 (quoting NJOY, 11 LLC v. Imiracle HK Ltd., No. 24-cv-00397-BAS-JLB, 2024 WL 4774890, *1 (S.D. Cal. 12 Nov. 13, 2024)).) 13 Neither the Federal Rules of Civil Procedure nor this District’s Local Rules provide 14 a right to file a sur-reply. Instead, “permitting the filing of a sur-reply is within the 15 discretion of the district court,” Whitewater W. Indus., Ltd. v. Pac. Surf Designs, Inc., No. 16 3:17-CV-01118-BEN-BLM, 2018 WL 3198800, at *1 (S.D. Cal. June 26, 2018), and sur- 17 replies should be allowed “only where a valid reason for such additional briefing exists, 18 such as where the movant raises new arguments in its reply brief.” Hill v. England, No. 19 CVF05869RECTAG, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005) (internal quotation 20 marks omitted). 21 Although the Court agrees with Defendant that Plaintiff’s counsel should perhaps 22 have anticipated Defendant’s arguments, (see Strike Opp’n at 5–6; see also ECF No. 61-2 23 at 3; ECF No. 62-1), the evidentiary objections Plaintiff seeks to address in her sur-reply 24 were briefed for the first time in Defendant’s Reply, rendering this one of the rare instances 25 in which a sur-reply may be warranted.3 This is not a reflection on the merits of 26 27 3 To the extent Defendant appears to argue that the undersigned’s Standing Order for Civil Cases 28 1 || Defendant’s argument, but rather a desire on the part of the Court to be fully briefed on the 2 ||matter in advance of the November 13, 2025 hearing. Accordingly, the Court GRANTS 3 Plaintiff's Ex Parte Application for Sur-Reply. Plaintiff MAY FILE a sur-reply 4 ||addressing Defendant’s arguments regarding the admissibility of Ms. Escobedo’s 5 || deposition, not to exceed five (5) pages, on or before 5:00 p.m. on October 23, 2025. 6 CONCLUSION 7 For the foregoing reasons, the Court GRANTS Plaintiffs Ex Parte Applications 8 ||(ECF Nos. 60, 61). As a result, the Court STRIKES Defendant’s Joint Statement of 9 ||Undisputed Material Facts Pertaining to Defendant Costco Wholesale Corporation’s 10 || Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (ECF 11 59-2) and ORDERS the Parties to meet and confer, in person, regarding a mutually 12 ||acceptable joint statement of undisputed material facts on or before 5:00 p.m. on 13 || October 21, 2025. Defendant SHALL FILE a replacement joint statement on or before 14 ||5:00 p.m. on October 23, 2025, and Plaintiff MAY FILE a sur-reply addressing 15 ||Defendant’s arguments regarding the admissibility of Ms. Escobedo’s deposition, not to 16 || exceed five (5) pages, on or before 5:00 p.m. on October 23, 2025 17 IT IS SO ORDERED. 18 Dated: October 15, 2025 —— (2 19 [aD (re 20 Honorable Todd W. Robinson United States District Judge 22 23 24 25 26 27 ag ||at 5 (citing Standing Order for Civil Cases § III-B.4)), the Court does permit the filing of a sur-reply with leave of the Court, see Standing Order for Civil Cases § IILB.5, as Plaintiff requests here.