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1

 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JAMES SANFORD,

NO. CIV. S-04-1336 WBS CMK

Plaintiff,

v. MEMORANDUM AND ORDER

HOLLYWOOD ENTERTAINMENT

CORPORATION dba HOLLYWOOD

VIDEO #005-649; MANN BROS.

CORPORATION dba MOUNTAIN

MIKE’S PIZZA; R.E.B.

ENTERPRISES V, LLC; and DOES 1

through 10, 

Defendants.

----oo0oo---- 

Plaintiff James Sanford brings claims against, among

others, defendant R.E.B. Enterprises V, LLC (hereinafter

“defendant”) for violation of (1) The Americans With Disabilities

Act of 1990, 42 U.S.C. § 1201 et seq. (“ADA”); (2) The Unruh Act,

California Civil Code § 51 et seq.; (3) The Disabled Persons Act,

California Civil Code § 54 et seq.; (4) The Unfair Business Act,

Cal. Bus. & Prof. Code § 17200 et seq.; and (5) California Health

and Safety Code § 19955 et seq.; and (6) for negligence. The

discovery deadline in this case is not until October 3, 2006. 

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(See Status (Pretrial Scheduling) Order dated January 28, 2005 at

3). Motions may be calendered for hearing up to November 3,

2006. (Id. at 2). However, defendant has already moved for

summary judgment. Pursuant to Federal Rule of Civil Procedure

56(f), plaintiff requests that (1) the court order defendant to

allow him to conduct a site inspection of defendant’s property on

July 8, 2005; and (2) the court continue defendant’s summary

judgment motion until August 22, 2005.

I. Discussion

Rule 56(f) states:

Should it appear from the affidavits of a party

opposing [a] motion [for summary judgment] that the

party cannot for reasons stated present by affidavit

facts essential to justify the party’s opposition, the

court may refuse the application for judgment or may

order a continuance to permit affidavits to be obtained

or depositions to be taken or discovery to be had or

may make such other order as is just.

 

Fed. R. Civ. P. 56(f). At first blush, the resolution of a

request to continue a summary judgment motion so that further

discovery can first be had pursuant to Rule 56(f) would appear to

be within the sound discretion of the district court. However,

the Ninth Circuit has divorced the court of any such illusion.

In Metabolife Int’l v. Wornick, the Ninth Circuit

clarified that:

Although Rule 56(f) facially gives judges the

discretion to disallow discovery when the nonmoving

party cannot yet submit evidence supporting its

opposition, the Supreme Court has restated the rule as

requiring, rather than merely permitting, discovery

“where the nonmoving party has not had the opportunity

to discover information that is essential to its

opposition.”

264 F.3d 832, 846 (9th Cir. 2001)(citing Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). Therefore, the court

must grant a request made pursuant to Rule 56(f) where the party

making the request shows (1) that they have set forth in

affidavit form the specific facts that they hope to elicit from

further discovery, (2) that these facts sought exist, and (3)

that these sought-after facts are “essential” to resist the

summary judgment motion. California v. Campbell, 138 F.3d 772,

779 (9th Cir. 1998). 

In this case it would be highly prejudicial to

plaintiff for this court to rule on defendant’s summary judgment

motion before plaintiff had the opportunity to conduct additional

discovery. One of the core arguments in defendant’s summary

judgment motion is that plaintiff’s ADA claim should be dismissed

for mootness because all of the alleged access barriers have been

removed from defendant’s property since plaintiff filed suit. 

(See Def.’s Mem. of P. & A. at 5-6, 8-16). Plaintiff, however,

has not yet conducted a site inspection of defendant’s property

pursuant to Federal Rule of Civil Procedure 34. See Fed. R. Civ.

P. 34(permitting “entry upon designated land or other property in

possession or control of the party upon whom [a] request is

served for the purpose of inspection . . . .”). 

Plaintiff’s counsel has submitted a signed declaration

in support of plaintiff’s request for a continuance pursuant to

Rule 56(f). (See Pl.’s Decl. for a Rule 56(f) Continuance at 3). 

In that declaration, plaintiff’s counsel states that a site

inspection of defendant’s property would allow plaintiff to

develop evidence necessary to determine whether defendant has

removed certain access barriers from the property that plaintiff

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1 Plaintiff refers to defendants rather than just

defendant R.E.B. Enterprise V, LLC in his proposed order. 

(Proposed Order filed on June 20, 2005 at 2). However, the court

assumes this is a typographical error because the rest of

plaintiff’s proposed order clearly refers to only the discrete

property owned by defendant R.E.B. Enterprise V, LLC. (See id.). 

 

4

claims are in violation of the ADA. Plaintiff’s counsel also

states that, if the subject barriers have been removed, a site

inspection would allow plaintiff to determine whether any new

barriers were inadvertently created in the process of removing

the old ones. (See Pl.’s Decl. for a Rule 56(f) Continuance ¶¶

6-7). Without such an inspection, plaintiff’s counsel states

that plaintiff cannot respond to defendant’s mootness argument. 

(See id. ¶ 5). Plaintiff’s point is well taken. Defendant has

put the current condition of the property at issue in its motion

for summary judgment. Therefore, it would be unfair to deny

plaintiff the opportunity to inspect the property in order to

prepare his opposition to defendant’s summary judgment motion.

Plaintiff has submitted a proposed order in which he

requests the court to order the defendant1 to allow plaintiff to

inspect the property under Rule 34 on July 8, 2005 at 10:00 a.m.

(Proposed Order filed on June 20, 2005 at 2). Attached to

plaintiff’s proposed order is a copy of a letter from the law

offices of defendant R.E.B.’s counsel suggesting that R.E.B.

would be amenable to having plaintiff conduct a site inspection

of the property on the suggested date. (See id., Ex. A (Letter

dated June 17, 2005). Plaintiff also requests that the hearing

on defendant’s motion be continued to August 22, 2005. (Id. at

2). Because defendant has until October 3, 2006 to conduct

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discovery and until November 3, 2006 to have its motion heard,

the dates requested by plaintiff are acceptable. 

IT IS THEREFORE ORDERED that:

(1) plaintiff be allowed to conduct a site inspection

of defendant’s property on July 8, 2005; and 

(2) the hearing on defendant’s motion for summary

judgment be, and the same hereby is, CONTINUED to August 22, 2005

at 1:30 p.m.

DATED: June 22, 2005

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