Cal. Sportfishing Prot. Alliance v. River City Waste Recyclers, LLC, No. 2:14–cv–01452–KJM–CKD

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: Kimberly Mueller, UNITED STATES DISTRICT JUDGE
• Citation: 205 F.Supp.3d 1128
• Parties: The CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, a non-profit corporation, Plaintiff, v. RIVER CITY WASTE RECYCLERS, LLC, a California Limited Liability Company, Defendant.
• Decision Date: 02 September 2016
• Docket Number: No. 2:14–cv–01452–KJM–CKD

205 F.Supp.3d 1128

The CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, a non-profit corporation, Plaintiff,
v.
RIVER CITY WASTE RECYCLERS, LLC, a California Limited Liability Company, Defendant.

No. 2:14–cv–01452–KJM–CKD

United States District Court, E.D. California.

Signed September 2, 2016
Filed September 6, 2016

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Rebecca L. Davis, Michael R. Lozeau, Lozeau Drury LLP, Oakland, CA, for Plaintiff.

Mark A. Pruner, Law Office of Mark A. Pruner, Sacramento, CA, for Defendant.

ORDER

Kimberly Mueller, UNITED STATES DISTRICT JUDGE

This is a civil enforcement action brought by plaintiff The California Sportfishing Protection Alliance (CSPA) against defendant River City Waste Recyclers, LLC (River City), alleging violations of the Federal Water Pollution Control Act, 42 U.S.C. §§ 1251–1387 ("the Clean Water Act" or "the Act") at River City's three-acre metal recycling facility in Sacramento, California (the Facility). This case is before the court on CSPA's motion for partial summary judgment of defendant's liability for violations of the Clean Water Act, including a determination as a matter of law of the total number and days of violations under the Act. ECF No. 26. River City opposes the motion, Opp'n, ECF No. 27, and the CSPA has replied, Reply, ECF No. 39. On January 29, 2016, the court held a hearing; Michael Lozeau and Rebecca Davis appeared for CSPA, and Mark Pruner appeared for River City. After the January 2016 hearing, the court allowed River City to file supplemental briefing and CSPA a surreply, clarifying their respective positions regarding the record. River City filed its supplemental briefing on February 8, 2016, Supp. Brief, ECF No. 50, and CSPA its surreply on February 11, 2016, Surreply, ECF No. 51.

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As explained below, the court GRANTS in part and DENIES in part CSPA's motion for partial summary judgment.

I. EVIDENTIARY ISSUES

CSPA has filed twenty pages of objections to the evidence River City submitted in opposition to partial summary judgment. River City raises just as many in its response to CSPA's statement of material facts. "The court is mindful of the language in Ninth Circuit cases that ‘[d]efects in evidence submitted in opposition to a motion for a summary judgment are waived absent a motion to strike or other objections.’ " Burch v. Regents of Univ. of Cal. , 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006). At the same time, this case is yet another example of "attorneys routinely rais[ing] every objection imaginable without regard to whether [they] are necessary, or even useful." Id.

A. Relevance and Foundation

Here, many of the parties' objections concern the relevance and foundation of evidence offered. "[O]bjections to evidence on the ground that it is irrelevant" are duplicative of the summary judgment standard. A court cannot rely on irrelevant facts in a motion for summary judgment. See Powell v. Union Pac. R. Co. , 864 F.Supp.2d 949, 953 n.2 (E.D. Cal. 2012) (citing Burch , 433 F.Supp.2d at 1119 ) (emphasis omitted). Accordingly, relevance objections are overruled. In terms of foundation, "documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment." Beyene v. Coleman Sec. Servs., Inc. , 854 F.2d 1179, 1182 (9th Cir. 1988). Nevertheless, "[o]n summary judgment, evidence need not be in a form that is admissible at trial. Accordingly, as long as a party submits evidence, which, regardless of its form, may be admissible at trial, it may be considered on summary judgment." Collins v. Mendoza–Powers , No. 06–1608, 2009 WL 453060, at *5 n.4 (E.D. Cal. Feb. 23, 2009) (citations omitted). In some instances, foundation may be apparent from the face of a document, see, e.g. , Las Vegas Sands, LLC v. Nehme , 632 F.3d 526, 533 (9th Cir. 2011), or it may otherwise be apparent that "substantive evidence could be made use of at trial," Lindell v. Synthes USA , 155 F.Supp.3d 1068, 1071–72 (2016) (citation and quotation marks omitted). General objections based on lack of foundation also are overruled.

B. River City's Late–Filed Declarations

CSPA objects as untimely to the supplemental declaration of Bryan Wilson, owner and operator of River City, ECF No. 36, and the declaration of David Zweig, the president of Analytical Environmental Services, an environmental consulting firm retained by River City in May 2014 to assist with water quality regulatory compliance issues, ECF No. 35, because the declarations were not filed until January 15, 2016, while the deadline for River City to file its opposition was December 4, 2015. Local Rule 142 provides that any affidavit shall be "filed with the... opposition ... to which it relates, unless accompanied by an affidavit of counsel purporting to show good cause for the separate filing thereof ...." River City has provided no explanation for the filing of these two declarations more than a month after they were due. The Wilson supplemental declaration and the Zweig declaration both are STRICKEN.

C. Bryan Wilson Declaration

The court divides into five categories CSPA's objections to the declaration of Bryan Wilson, owner and operator of River City, CSPA Evid. Obj., ECF No. 41, and addresses them below: (1) legal conclusions; (2) improper lay witness opinion

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testimony; (3) hearsay; (4) contradictory testimony; and (5) self-serving testimony.²

1. Legal Conclusions

CSPA objects to several statements in the Wilson declaration, contending they are legal conclusions. See, e.g. , CSPA Evid. Obj., ECF No. 41 at 5, 10. Legal conclusions are inadmissible when presented as lay testimony. See e.g. , Nationwide Transp. Fin. v. Cass Info. Sys., Inc. , 523 F.3d 1051, 1060–61 (9th Cir. 2008) (lay witnesses may not tell the finder of fact what result to reach). CSPA's objections are SUSTAINED to the extent Wilson offers legal opinions.

2. Improper Lay Witness Opinion Testimony

CSPA objects to certain declaration testimony as improper lay opinion. Federal Rule of Evidence 701 requires that non-expert witnesses restrict their testimony to opinions that are rationally based on their perception, helpful to understanding their testimony or to determining a fact at issue, and not based on specialized knowledge. Fed. R. Evid. 701 ; Taylor v. Shippers Transp. Exp., Inc. , No. 13–2092, 2014 WL 7499046, at *3 (C.D. Cal. Sept. 30, 2014).

Here, the majority of CSPA's objections focus on legal conclusions, not improper opinion testimony. See, e.g. , Wilson Decl. ¶ 10 ("From the beginning ... extensive planning took place to protect and address exposure of heavy metal to water."); id. ¶ 11 ("Prior to the excavation of the ditch and work on the detention basin [River City] had implemented numerous other BAT/BCTs."). As stated above, the court sustains objections to legal conclusions.

CSPA's remaining objections concern irrelevant evidence the court does not consider in this order. Accordingly, CSPA's objections in this respect are OVERRULED.

3. Hearsay

CSPA also objects to various statements as hearsay. Hearsay statements are those made outside a court proceeding that are offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Summary judgment cannot be granted on the basis of inadmissible hearsay evidence. See Shippers Transp. , 2014 WL 749904, at *4. But the court may consider hearsay evidence offered by one who opposes summary judgment if the statements in question could be presented in admissible form at trial. Fraser v. Goodale , 342 F.3d 1032, 1037 (9th Cir. 2003).

CSPA objects to the following statements in Wilson's declaration as hearsay: "I am informed that a 10–year rain event produces water at approximately the 85th percentile ...," Wilson Decl. ¶ 7; "Storm water pollution preventions [sic] plans and compliance are frequent discussion points in our conversation," id .; ¶ 9; "all of these other recycling businesses are fully permitted," id. ; "none of these other recycling businesses have, or are required to have, storm water detention basins...," id. ; "[a]ll inspections by the Regional Water Board of the ... recycling facility passed The Clean Water Act standards and requirements," id. ¶ 17; and "[n]o violations have ever been issued to defendant River City by the Regional Water Board, and all BATs/BCTs recommended by the Regional Water Board ... were promptly implemented," id. The court finds these statements irrelevant in the context of the pending motion. CSPA's objections with

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respect to them are OVERRULED as moot.

Wilson also makes averments along the lines of "[CSPA's] representatives on the visits agree with me" or "[CSPA's] counsel ... said ... directly to me." To the extent these statements are offered to prove the truth of the communication described, they are the statements of River's City's opponent or of one of its representatives and therefore are not hearsay. See Fed. R. Evid. 801(d)(2). CSPA's objections to these statements are also OVERRULED.

4. Contradictory Deposition and Declaration Testimony

CSPA objects to several statements Wilson made in his...