Doutherd v. Montesdeoca
| Decision Date | 13 October 2020 |
| Docket Number | No. 2:17-cv-02225-KJM-JDP,2:17-cv-02225-KJM-JDP |
| Court | U.S. District Court — Eastern District of California |
| Parties | TYRONE DOUTHERD, Plaintiff, v. DORIS MARIE MONTESDEOCA, The Estate of LUCILLE J. SMITH, UNITED PARCEL SERVICE, INC., LIBERTY MUTUAL INSURANCE COMPANY, and HARMONY HOME CARE, INC., Defendants. |
This case arises from a motor vehicle accident plaintiff suffered while at work for his employer, UPS Ground Freight, Inc., and subsequent events related to his employment. Two motions for summary judgment are before the court. Defendant UPS Ground Freight, Inc. (sued as United Parcel Service, Inc., hereafter "UPSF") moves for summary judgment as to all of plaintiff Tyrone Doutherd's claims against it. UPSF Mot., ECF Nos. 123, 123-1. Plaintiff opposes the motion. UPSF Opp'n, ECF No. 135. UPSF replied. UPSF Reply, ECF No. 144. Defendant Harmony Home Care, Inc. ("Harmony") moves for summary judgment as to plaintiff's claims against it. Harmony Mot., ECF No. 125; Harmony Mem. P&A, ECF No. 125-1. Plaintiff opposes. Doutherd Opp'n, ECF No. 133. Harmony replied. Harmony Reply, ECF No. 140.
///// The court heard oral argument on the motions by video teleconferencing in consideration of the ongoing coronavirus pandemic on July 10, 2020. Ellen Dove appeared on behalf of plaintiff. Amanda Griffith appeared on behalf of Harmony Home Care. Emily Burkhardt Vicente appeared on behalf of UPSF. Having carefully considered the parties' arguments, the evidence in the record, and the applicable law, the court now GRANTS UPSF's motion and GRANTS IN PART and DENIES IN PART Harmony's motion.
Before reciting the facts in detail, the court resolves evidentiary objections and notes the effect of the law of the case.
The court focuses on UPSF's objections and consider Harmony's objections only when they are material, as many of them are duplicative of USPF's. To the extent both moving defendants' objections are merely "boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence," the court declines to scrutinize them one-by-one. See Ramsey v. Siskiyou Hosp. Inc., No. 2:14-cv-01908-KJM-CMK, 2016 WL 3197557, at *1 (E.D. Cal. June 9, 2016) (citations omitted); see also Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198, 1200 n.1 (C.D. Cal. 2010) .
Plaintiff relies chiefly on his own declarations to oppose the motions. Pl.'s Resp. UPSF SUF, ECF No. 136; Doutherd UPSF Decl., ECF No. 134; Pl.'s Resp. Harmony SUF, ECF No. 133-1; Doutherd Harmony Decl., ECF No. 133-2. Both Harmony and UPSF object that the declarations are self-serving. UPSF Obj. Pl.'s Decl., ECF No. 143; Harmony Obj. Pl.'s Decl., ECF No. 142. This is not per se a bar to their consideration:
[D]eclarations are often self-serving, and this is properly so because the party submitting it would use the declaration to support his or her position. Although the source of the evidence may have some bearing on its credibility and on the weight it may be given by a trier of fact, the district court may not disregard a piece of evidenceat the summary judgment stage solely based on its self-serving nature.
Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015). However, the court is empowered to "disregard a self-serving declaration that states only conclusions and not facts that would be admissible evidence." Id. (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1059 n.5, 1061 (9th Cir. 2002). "A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact." F.T.C. v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997).
The court's power to disregard conclusory and threadbare self-serving declarations must be weighed against the requirement to draw all reasonable inferences in favor of the nonmoving party at the summary judgment stage. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
In considering plaintiff's declarations, the court disregards plaintiff's conclusions of law unsupported by factual details. Insofar as he asserts facts, however, the court will not disregard them solely for their self-serving nature, as counseled by Nigro, 784 F.3d at 497. It remains plaintiff's burden in opposing summary judgment to present evidence from which a jury could reasonably render a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Plaintiff's UPSF declaration recounts his story at a high level of generality, omitting key facts. This level of generality is not enough to withstand summary judgment. A reasonable juror would not have a sufficient understanding of the details from such testimony to find for the plaintiff. While, deficiencies in affidavits offered in opposition to summary judgment may be cured to make them "admissible at trial" and thus competent to oppose, Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)), these basic details would have been in plaintiff's personal knowledge and possession at the time and could have been included in his declaration. "When a party has relevant evidence in his control which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him." Singh v. Gonzales, 491 F.3d 1019, 1024 (9th Cir. 2007) (). The missing details are not trifles; they are the factual basis for his case. The court has no obligation to comb the record for a basis of admissibility of his threadbare factual assertions "as if [it were] [a] pig[] sniffing for truffles." In re Oracle Sec. Litigation, 627 F.3d 376, 386 (9th Cir. 2010) (citation omitted).
Therefore the court cannot consider sworn statements where plaintiff omits key details of events to which he would have been a percipient witness as competent to oppose. The court does not sustain the objection as to the totality of plaintiff's declaration. However, the court sustains the objection as to those parts of the declaration that state in a conclusory fashion that events occurred without any detail.
UPSF objects that several portions of plaintiff's declaration are "sham declaration[s]" that contradict his testimony at deposition and should thus be disregarded. UPSF Obj. Pl.'s Decl. at 2-3, 4, 6, 14, 17, 18-20 (). Under Kennedy, a nonmoving party's declaration does not create a genuine issue of material fact if it is inconsistent with that party's deposition testimony, when the inconsistency is not based on confusion at the deposition or a lack of material facts at that time. Kennedy, 952 F.2d at 267. The "rule does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony." Id. at 266-67. Instead, the non-moving party "is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 999 (9th Cir. 2009) (citation omitted). Under this rule, the court is required to make a specific factual finding whether the declaration
/////offered at summary judgment is truly a contradictory "sham," or whether it is an honest discrepancy based on confusion, mistake or lack of evidence. Id.
Plaintiff responds to UPSF's objections by asserting his testimony at deposition was incomplete because defendant's attorneys failed to ask the follow-up questions necessary for a full explanation. Pl.'s Resp. Obj. Doutherd UPSF Decl. at 2, ECF No. 147. Furthermore, plaintiff asserts the deposition excerpts are taken out of context. Id. Plaintiff does not point to or attach specific excerpts to clarify his position in this regard. If plaintiff will not put the relevant deposition excerpts in context himself, the court has no obligation to comb the record for him. In re Oracle, 627 F.3d at 386.
Having reviewed the deposition transcripts UPSF points to, the court finds the assertions UPSF objects to in paragraphs 5, 7, 10, 11, 12, 15 and 37 of plaintiff's declaration are directly contradictory to his deposition with no indication of confusion, incomplete context or a lack of knowledge. In particular, the affidavit's narrative of plaintiff's communications with his dispatcher after the accident and his course of treatment differs materially from his deposition testimony. At deposition, plaintiff chronologically recounted the events of the day in response to open ended, unambiguous questions, giving him an opportunity to explain the entire situation. See UPSF Supp. Vicente Decl. Ex. B at B07-B11, ECF No. 146-2. Therefore, the court SUSTAINS the "sham declaration" objection to the contradictory portions of these paragraphs of plaintiff's declaration.
On the other hand, the court overrules the objection to both paragraphs numbered 34 and paragraph 38. As to the first 34, the question at deposition called for whether plaintiff had trouble attending medical and physical therapy appointments in 2015, not in 2017, as the declaration states. UPSF Supp. Vicente Decl. Ex. B at B19-B20. The second 34 relates to plaintiff's allegedly unrepaired and dangerous truck. Plaintiff...
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