Commercial Litigation and Arbitration

Rule 37(c)(1) Sanctions: Failure to Identify Witness in Initial Disclosures Harmless Where Her SJ Declaration Was Necessary Only to Authenticate Documents Whose Authenticity the Opponent Did Not Dispute

Burden v. Bar Loui Anaheim, Inc., 2017 U.S. App. LEXIS 8600 (9th Cir. May 16, 2017):

*   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Kay Burden appeals the district court's decision to grant summary judgment for Bar Louie Anaheim, Inc. (BLA) in this diversity slip-and-fall case. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Burden argues that the district court erred when it admitted Kerry Paredes' declaration into evidence. Paredes was not identified as a witness in BLA's initial disclosures. If a party fails to provide information or identify a witness as required by Federal Rule of Civil Procedure 26(a), "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, [*2]  unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1); see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001). The standard of review for a district court's decisions concerning Rule 37 sanctions is abuse of discretion. See Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 859 (9th Cir. 2014).

BLA's failure to identify Paredes in its initial disclosures was harmless. Considering de novo the evidence that BLA provided in discovery, see Brunozzi v. Cable Commc'ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017), in the light most favorable to Burden as the non-movant on summary judgment, see Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987), it can be inferred that BLA did not control Bar Louie after the sale and therefore was not the right defendant. See Kesner v. Superior Court, 1 Cal. 5th 1132, 1158, 210 Cal. Rptr. 3d 283, 384 P.3d 283 (2016). Accordingly, Paredes' declaration was necessary only to authenticate the documents. But Burden had been given the documents previously and does not dispute their authenticity. She offered no evidence that BLA controlled the property. The district court did not abuse its discretion by admitting Paredes' declaration and its attachments, and the court correctly granted summary judgment for BLA.


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