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Dianna M. Bueler v. Sears

May 9, 2012

DIANNA M. BUELER, PLAINTIFF,
v.
SEARS, ROEBUCK AND CO.,
DEFENDANT



ORDER

On May 11, 2010, plaintiff filed a complaint in Butte County Superior Court, alleging that defendant had terminated her in violation of California's Fair Employment and Housing Act (FEHA), CAL. GOV'T CODE §§ 12940, et seq., and in violation of public policy, and had breached the implied covenant of good faith and fair dealing. ECF No. 1 at 5. Defendant removed the action to this court on July 13, 2010. 28 U.S.C. § 1332. ECF No. 1.

On February 27, 2012, the court adopted the parties' stipulation dismissing the third cause of action, for breach of the implied covenant of good faith and fair dealing.

ECF No. 24.

On March 6, 2012, defendant filed a motion for summary judgment, which the court submitted without argument. L.R. 230(g). After considering the parties' evidence and the papers, the court DENIES the motion for summary judgment, as explained below.

I. Summary Judgment Standard

A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn1

The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . .; or show [] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).

In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

II. Admissibility of Evidence

The evidence this court may consider in resolving the parties' competing claims must be admissible: "It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment." Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988); FED. R. CIV. P. 56(c)(2). This court cannot consider "documents which have not had a proper foundation laid to authenticate them" in support of or opposition to summary judgment. Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); Providence Health Plan v. Charriere, 666 F. Supp. 2d 1169, 1182-83 (D. Or. 2009) (defendant cannot create an issue of fact in opposition to summary judgment by submitting unauthenticated deposition excerpts).

Authentication is a condition precedent to admissibility and is satisfied by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (quoting FED. R. EVID. 901(a)). The Ninth Circuit has "repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment." Id.; but see Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006) (noting that "[w]hether the authentication requirement should be applied to bar evidence when its authenticity is not actually disputed, is . . . questionable."). Where a party seeks to authenticate exhibits through personal knowledge by attaching them to an affidavit or declaration,the affiant or declarant must be a person through whom the exhibits could be admitted into evidence and who has personal knowledge of the exhibit. Orr, 285 F.3d at 773--74.

In Orr, the Ninth Circuit provided the following guidance on authenticating depositions:

A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action andincludes the reporter's certification that the deposition is a true record of the testimony of the deponent. Ordinarily, this would have to be accomplished by attaching the cover page of the deposition and the reporter's certification to every deposition extract submitted. It is insufficient for a party to submit, without more, an affidavit from her counsel identifying the names of the deponent, the reporter, and the action and stating that the deposition is a 'true and correct copy.' Such an affidavit lacks foundation even if the affiant-counsel were present at the deposition.

285 F.3d at 776 (citations omitted). A deposition that is not accompanied by the signed reporter's certification is not properly authenticated. Id. (citing, among other cases, Pavone v. Citicorp Credit Servs., Inc., 60 F. Supp. 2d 1040, 1045 (S.D. Cal. 1997), which excluded depositions lacking a signed reporter's certification). Here, neither party has properly authenticated a single deposition. For each deposition excerpt submitted, the relevant cover page is provided; however, neither party provides a signed reporter's ...


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