Commercial Litigation and Arbitration

Email Admissibility — Admissions, State of Mind, Excited Utterance, Intent or Plan — Courts Sometimes More Lenient with Affidavits and Documents of Party Opposing Summary Judgment

Fleming v. Purcell Painting & Coatings Sw., Inc., 2014 U.S. Dist. LEXIS 178471 (E.D. Cal. Dec. 30, 2014):

Defendant Purcell Painting and Coatings Southwest moves for summary judgment. (Def.'s Corrected Mot. Summ. J., ECF No. 29.) Plaintiff Jay Fleming opposes the motion. (Pl.'s Opp'n to Def.'s Mot., ECF No. 39.) ***


A court may consider evidence on summary judgment as long as it is "admissible at trial." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Admissibility depends not on the evidence's form, but on its content. 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)). The party seeking admission of evidence "bears the burden of proof of admissibility." Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects to the proposed evidence, the party seeking admission must direct the court to "authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible . . . ." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010). However, courts are sometimes "much more lenient" with the affidavits and documents of the party opposing summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979).

The court addresses four objections in detail. First, Fleming objects to the February 10, 2012, email from Fleming to Dave Purcell thanking Purcell for his support during Fleming's [*3]  removal from the Three Bridges Project. (Dayton Decl. Ex. M, ECF No. 31-1.) He contends the email is hearsay, lacks foundation, was made without personal knowledge, and calls for a legal conclusion. The court overrules the objection. "[E]mails written by a party are admissions of a party opponent and admissible as non-hearsay under Fed. R. Evid. 801(d)(2)." In re, Inc. Sec. Litig., 347 F. Supp. 2d 769, 781 (C.D. Cal. 2004). A review of the undisputed facts and the email's contents shows it was made with Fleming's personal knowledge and calls for no legal conclusions.

Second, Fleming objects to the April 10, 2012 email from Ben Bear to Dave Purcell confirming Purcell's assessment that Fleming was a "bright young man" and deserved a raise. (Purcell Decl. Ex. B, ECF No. 22.) He contends the statement is hearsay and lacking in personal knowledge and foundation. The court overrules this objection because Dave Purcell's statements are not offered for their truth, but as evidence of his belief regarding Fleming's professional performance. Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1053 (9th Cir. 2013) ("The [hearsay] bar applies only when the statements are offered to prove the truth of the fact underlying the memory or belief."). Neither does a review of the record or the email suggest any lack of foundation or personal knowledge.

Third, Fleming [*4]  objects to the October 5, 2012, email from Purcell Painting's CFO to its attorney, asking the attorney about terminating the Vancouver office lease. (Dayton Decl. Ex. T, ECF No. 31-1.) Fleming contends the statement is hearsay and irrelevant. The email includes several parts. First, its subject line reads "HELP! Just signed a lease for Vancouver this week, executed it, and Ben just quit." The body includes two sentences: first "Dave now wants to shut down that office," and second, "Any ideas how to approach the property management company?" The email is not admissible to show what Dave Purcell had said on a particular date, but is admissible to show the declarant's excitement and the nature of any emergency under the "well-known exception to the hearsay exclusionary rule." United States v. Hills, 455 F.2d 504, 505 (9th Cir. 1972) (per curiam). See also Yang v. Mendoza-Powers, No. 05-417, 2009 WL 257036, at *3 (E.D. Cal. Feb. 4, 2009) (applying Fed. R. Evid. 803(2) to a written statement), report and recommendation adopted sub nom. Bee Yang v. Mendoza-Powers, No. 05-417, 2009 WL 1156460 (E.D. Cal. Apr. 29, 2009). The email is admissible evidence of the declarant's "state of mind," and an "intent, or plan" to escape a lease on a particular date. Fed. R. Evid. 801(1), (3). The email also is admissible to show Purcell Painting personnel formed the intent to avoid continuing the lease on October 5, 2012, their reaction to learning the office would [*5]  be closed, and the circumstances driving that reaction. Id. It is relevant to show whether Purcell Painting intended to close the office to retaliate against Fleming or based on a legitimate intent.


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