Ridgel v. United States
| Decision Date | 21 May 2013 |
| Docket Number | Case No. SACV 12-0071 JGB (MLGx) |
| Court | U.S. District Court — Central District of California |
| Parties | DYLAN RIDGEL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
ORDER DENYING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment filed by Defendant United States of America. After considering the papers filed in support of and in opposition to the Motion, and the arguments advanced by counsel at the May 20, 2013 hearing, the Court DENIES Defendant's Motion for Summary Judgment.
A. Procedural Background
On January 17, 2012, Plaintiff Dylan Ridgel ("Ridgel") filed his Complaint against the United States of America ("the Government") alleging negligence under a premises liability theory pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. (Compl. at 1 (Doc. No. 1).)
On April 22, 2013, the Government filed this Motion for Summary Judgment ("MSJ") along with:
(Doc. Nos. 27 through Doc. No. 27-10.)
On April 29, 2013, Ridgel filed his Opposition, along with:
Finally, the Government filed its Reply on May 10, 2013, along with two exhibits consisting of deposition excerpts. (Doc. Nos. 33 through 33-2.)
A court shall grant a motion for summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matterof law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.
Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998) (citing Anderson, 477 U.S. at 256-57); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Because summary judgment is a "drastic device" that cuts off a party's right to present its case to a jury, the moving party bears a "heavy burden" of demonstrating the absence of any genuine issue of material fact. See Avalos v. Baca, No. 05-CV-07602-DDP, 2006 WL 2294878 (C.D. Cal. Aug. 7, 2006) (quoting Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir. 1999)).
Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of thenon-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id.; Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). "[A] summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(c)).
The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144. A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378,380 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
Ridgel objects to (1) the Expert Report of Charles Miller ("Miller Report") as inadmissible evidence (Objections ¶¶ 4, 5); (2) several declaration statements as improper opinion under Federal Rule of Evidence ("FRE) 701 (id. ¶¶ 16, 18, 34, 36, 37); and (3) various other factual contentions and declaration statements as legal conclusions, irrelevant, lacking foundation, or speculative (see generally Objections).
The Court sustains Ridgel's objection to the Miller Report and thus strikes it as inadmissible evidence. First, the Report is not attached to any declaration and is unauthenticated and unsworn. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773-75 (9th Cir. 2002) (). Courts in the Ninth Circuit "have routinely held that unsworn expert reports are inadmissible." Harris v. Extendicare Homes, Inc., 829 F. Supp. 2d 1023, 1027 (W.D. Wash. 2011); see also Shuffle Master, Inc. v. MP Games LLC, 553 F. Supp. 2d 1202, 1210-11 (D. Nev. 2008); King Tuna, Inc. v. Anova Food, Inc., No. 07-7451-ODW, 2009 WL 650732, at *1 (C.D. Cal. Mar. 10, 2009) ().
Second, the Government failed to attach or otherwise provide the documents on which Miller relied in drafting his report. See FRCP 56(c); Harris, 829 F. Supp. 2d at 1027 ( ) Even if the Court overlooks that images of multiple documents referenced are embedded in the Report, rather than being attached and authenticated as exhibits, the Government still fails to attach the four depositions and the response to interrogatories that Miller must have relied on to write his factual statement and from whichhe drew his conclusions.1 (See Miller Rep. at 32 (Documents Reviewed Nos. 8-12), 43-45.)
The Court therefore finds the Miller Report inadmissible and does not consider it here.
The Court overrules Ridgel's objections based on FRE 701, which states that non-expert witnesses are limited to offering opinions that are (1) "rationally based on the witness's perception"; (2) "helpful . . . to determining a fact in issue; and (3) "not based on . . . specialized knowledge" that is within the scope of expert witness testimony. (Objections ¶¶ 16, 18, 34, 36, 37.) The underlying evidence in the objected-to portions of the SUF consists of sworn statements from Alberto Salazar (Pipe Shop Supervisor), W. Thomas Hendon (Maintenance Team Supervisor), and Archie Sanchez (Occupational Health and Safety Specialist). All three were employed in these capacities by the Department of Veteran Affairs in Long Beach, California, the site of Ridgel's injury, and theirtestimony is properly based on personal knowledge and the conclusions they drew as part of their job responsibilities. (See Salazar Decl. ¶ 1; Hendon Decl. ¶ 1; Sanchez Decl. ¶ 1.) Statements such as Salazar's regarding the purpose and functioning of pipe at issue (Objections ¶¶ 16, 18) are properly interpreted as statements of his knowledge and belief developed in the course of his daily duties, which is material to Ridgel's negligence claim, rather than as expert testimony that goes primarily to the truth of the statement. Thus, the nature of Ridgel's objection is more appropriately considered in the determination of whether the Government has established the facts submitted in its SUF, not as a question of admissibility of the evidence.
The majority of Ridgel's remaining objections are either not properly grounded in evidentiary rules or are duplicative of the summary judgment standard, requiring consideration of material facts only, and thus unnecessary to resolve here. Regarding Ridgel's many objections under FRE 602, which requires that witnesses have personal knowledge of the matter about which they are testifying, the Court finds that there is clearly sufficient foundation for all except two of the of theobjected-to declaration statements, which are considered below.
First, Ridgel objects to the following sentence from Paragraph 7 of the Salazar Declaration (Objection ¶ 22): "After Mr. Ridgel and I walked through the door leading to the third floor roof, I took Mr. Ridgel far enough away from the door so he and I could see the top of the hot steam vent pipe that was still regularly emitting scalding condensate on the fourth floor roof." The Court construes this sentence as a statement...
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