Fenters v. Chevron

• Decision Date: 30 December 2010
• Docket Number: No. CV–F–05–1630 OWW/DLB.,CV–F–05–1630 OWW/DLB.
• Citation: 761 F.Supp.2d 957
• Court: U.S. District Court — Eastern District of California
• Parties: Tiffany FENTERS, Plaintiff,v.YOSEMITE CHEVRON, et al., Defendants.

761 F.Supp.2d 957

Tiffany FENTERS, Plaintiff,

v.YOSEMITE CHEVRON, et al., Defendants.

No. CV–F–05–1630 OWW/DLB.

United States District Court, E.D. California.

Dec. 30, 2010.Order Denying Certification April 7, 2010.

Kevin Gerard Little, Law Office of Kevin G. Little, Fresno, CA, for Plaintiff.Cathy L. Arias, Andrew R. Shalauta, Andrew R. Shalauta, Burnham and Brown, Oakland, CA, James J. Arendt, Weakley, Arendt & McGuire, Joseph D. Rubin, Betts & Wright, Fresno, CA, James Nathan Fincher, Merced County Counsel, Merced, CA, for Defendants.

MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS YOSEMITE CHEVRON, ABBCO INVESTMENTS, LLC, AND ROBERT ABBATE'S MOTION FOR SUMMARY JUDGMENT (Doc. 137)

OLIVER W. WANGER, District Judge.

Before the Court is the motion for summary judgment filed by Defendants Yosemite Chevron, Abbco Investments, LLC, and Robert Abbate (hereafter the “Abbate Defendants”).¹

A. ABBATE DEFENDANTS' OBJECTIONS TO BETTANCOURT EXPERT REPORT.

Submitted in opposition to the Abbate Defendants' motion for summary judgment is what is characterized by Mr. Little as “the declaration report” of John Bettancourt. Mr. Bettancourt avers:

1. I am a certified public accountant. My current curriculum vitae has been provided separately.

2. I have been retained on behalf of plaintiff Tiffany Fenters in this proceeding.

3. My opinions regarding the accounting aspects of this case are set forth in my testimony in the criminal case, People v. Tiffany Fenters, which I incorporate herein by reference. Those opinions remain unchanged. I based those opinions on a review of the accounting materials provided and made available by the prosecution in the underlying criminal case. I reviewed those materials at length, and I understand that my related work product has also been produced by plaintiff's counsel.

4. The spreadsheets provided by defendant Robert Abbate is indicative of false, fabricated and misleading work product for the reasons previously stated in my trial testimony and as reflected in my work product. The accounting work done by defendants Cassabon & Associates and Victor Fung is also indicative of false, fabricated and/or misleading work product for the reasons largely expressed in my trial testimony and reflected in my work product. The defendants' accounting work is not merely substandard or negligent but instead is reflective of false, fabricated and/or misleading work.

The Abbate Defendants object to Mr. Bettancourt's declaration on several grounds.

Defendants object to consideration of Mr. Bettancourt's declaration because it fails to set forth Mr. Bettancourt's qualifications.

Rule 702, Federal Rules of Evidence, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

“Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.” Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir.1990).

Defendants complain that Mr. Bettancourt's declaration does not set forth his qualifications, other than to aver that he is a certified public accountant.

Plaintiff responds that “the totality of the materials submitted to the Court, which include Bettancourt's trial testimony in the underlying criminal case and his deposition, more than amply set forth his qualifications as an experienced forensic accountant and certified fraud examiner, as well as the materials he reviewed in support of his opinion in this case,” citing Bettancourt's trial testimony at p. 516–531 and his deposition testimony at p. 1–23. Plaintiff cites Miller v. Corrections Corp. of America, 375 F.Supp.2d 889, 896 (D.Alaska 2005), in contending that “an expert report may, as do plaintiff's expert's reports, include or make reference to attachments reflecting the expert's opinions.”

Defendants' objections to Mr. Bettancourt's declaration on the ground that he is unqualified to render the opinion is baseless. Defendants do not point to any specific evidence that Mr. Bettancourt is not qualified to give his expert opinion as to the accounting methods utilized by Defendants.

Defendants object that Mr. Bettancourt provides no foundation for his opinion in that he does not set forth any of the data he reviewed or any investigation that he undertook in reaching his conclusions; that it does not set forth his methodology; and that his testimony is speculative and conjectural.

However, as Plaintiff notes, Mr. Bettancourt's methodology and foundation is set forth in his trial testimony in the underlying criminal action. While certain of Mr. Bettancourt's conclusions are conjectural and speculative, these are matters going to the weight of his opinion, not its admissibility.

B. GOVERNING STANDARDS.

Summary judgment is proper when it is shown that there exists “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A fact is “material” if it is relevant to an element of a claim or a defense, the existence of which may affect the outcome of the suit. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Materiality is determined by the substantive law governing a claim or a defense. Id. The evidence and all inferences drawn from it must be construed in the light most favorable to the nonmoving party. Id.

The initial burden in a motion for summary judgment is on the moving party. The moving party satisfies this initial burden by identifying the parts of the materials on file it believes demonstrate an “absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to defeat summary judgment. T.W. Elec., 809 F.2d at 630. The nonmoving party “may not rely on the mere allegations in the pleadings in order to preclude summary judgment,” but must set forth by affidavit or other appropriate evidence “specific facts showing there is a genuine issue for trial.” Id. The nonmoving party may not simply state that it will discredit the moving party's evidence at trial; it must produce at least some “significant probative evidence tending to support the complaint.” Id. The question to be resolved is not whether the “evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). This requires more than the “mere existence of a scintilla of evidence in support of the plaintiff's position”; there must be “evidence on which the jury could reasonably find for the plaintiff.” Id. “The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment.” Id. As explained in Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099 (9th Cir.2000):

The vocabulary used for discussing summary judgments is somewhat abstract. Because either a plaintiff or a defendant can move for summary judgment, we customarily refer to the moving and nonmoving party rather than to plaintiff and defendant. Further, because either plaintiff or defendant can have the ultimate burden of persuasion at trial, we refer to the party with and without the ultimate burden of persuasion at trial rather than to plaintiff and defendant. Finally, we distinguish among the initial burden of production and two kinds of ultimate burdens of persuasion: The initial burden of production refers to the burden of producing evidence, or showing the absence of evidence, on the motion for summary judgment; the ultimate burden of persuasion can refer either to the burden of persuasion on the motion or to the burden of persuasion at trial.

A moving party without the ultimate burden of persuasion at trial—usually, but not always, a defendant—has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment ... In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial ... In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact ....

If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial ... In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything ... If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense ... If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment ... But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion.

210 F.3d at 1102–1103.

C. ABBATE DEFENDANTS' SEPARATE STATEMENT OF UNDISPUTED FACTS.1. Issue No. 1: Plaintiff Cannot Maintain a Claim for Violation of Section 1983 Because She Cannot Meet the Requisite Elements.

DUF 1: Tiffany Fenters (“Fenters” or “Plaintiff”) worked for defendant Yosemite Chevron between June 2002 to March 2003.

Plaintiff's Response: UNDISPUTED.

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