Burden v. Bar Louie Anaheim, Inc., 16-55371

• Decision Date: 16 May 2017
• Docket Number: No. 16-55371,16-55371
• Parties: KAY BURDEN, Plaintiff-Appellant, v. BAR LOUIE ANAHEIM, INC., DBA Bar Louie, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

KAY BURDEN, Plaintiff-Appellant, v. BAR LOUIE ANAHEIM, INC., DBA Bar Louie, Defendant-Appellee.

No. 16-55371

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted: May 12, 2017

May 16, 2017

NOT FOR PUBLICATION

D.C. No. 8:15-cv-00638-AG-E

MEMORANDUM^*

Appeal from the United States District Court for the Central District of California

Andrew J. Guilford, District Judge, Presiding

Submitted May 12, 2017^** Pasadena, California

Before: KOZINSKI and OWENS, Circuit Judges and WILKEN,^*** Senior District Judge.

Kay Burden appeals the district court's decision to grant summary judgmentfor Bar Louie Anaheim, Inc. (BLA) in this diversity slip-and-fall case. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Burden argues that the district court erred when it admitted Kerry Paredes' declaration into evidence. Paredes was not identified as a witness in BLA's initial disclosures. If a party fails to provide information or identify a witness as required by Federal Rule of Civil Procedure 26(a), "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1); see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001). The standard of review for a district court's decisions concerning Rule 37 sanctions is abuse of discretion. See Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 859 (9th Cir. 2014).

BLA's failure to identify Paredes in its initial disclosures was harmless. Considering de novo the evidence that BLA provided in discovery, see Brunozzi v. Cable Commc'ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017), in the light most favorable to Burden as the non-movant on summary judgment, see Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987), it can be inferred that BLA didnot control Bar Louie after the sale and therefore was not the right defendant. See Kesner v. Superior Court, 1 Cal. 5th 1132, 1158 (2016). Accordingly, Paredes' declaration was necessary only to authenticate the documents. But Burden had been given the documents previously and does not dispute their authenticity. She offered no evidence that BLA controlled the property. The district court did not abuse its discretion by admitting Paredes' declaration and its attachments, and the court correctly granted summary judgment for BLA.

AFFIRMED.

*. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**. The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

***. The Honorable Claudia Wilken, Senior District Judge for the U.S. District Court for the Northern...