This matter comes before the court on the motion for summary judgment filed by Sierra Pacific Industries ("SPI") and Eunice Howell and Howell's Forest Harvesting (together, "Howell"). (ECF 417.) The motion was heard on April 12, 2012; Kelli Taylor, Richard Elias and Glen Dorgan appeared for plaintiff; William Warne, Annie Amaral, Meghan Baker, Michael Schaps and Michael Thomas appeared for SPI; Derek Van Deviver appeared for Howell; Richard Linkert appeared for W.M. Beaty and Associates, Inc. ("Beaty"); and Steven Ragland appeared for the defendant Landowners.*fn1
For the following reasons, SPI and Howell's motion is hereby denied in part and granted in part.
The Moonlight Fire ignited on September 3, 2007. (Defs.' Reply to Pl.'s Statement of Undisputed Facts ¶ 1, ECF 450 (hereinafter "ECF 450").)
Plaintiff filed the original complaint in this case on August 31, 2009. (ECF 1.) On May 26, 2010, plaintiff filed the operative second amended complaint against defendants SPI, Beaty, Howell and Landowners. (ECF 53 ¶¶ 5-8.) The second amended complaint alleges seven causes of action: 1) negligence against all defendants; 2) liability under the Fire Liability Law, California Health & Safety Code §§ 13007-13009.1 & Civil Code §§ 3287 & 3288 against all defendants; 3) negligence and negligence per se under 14 Cal. Code Regs. § 938.8 & the Fire Protection Plan against all defendants; 4) trespass by fire against all defendants; 5) negligent supervision against SPI, Beaty, Landowners and Eunice Howell; 6) negligent hiring against SPI, Beaty and Landowners; and 7) interest and penalties against all defendants. (Id.)
Beaty and Landowners filed their answers to the second amended complaint on June 10, 2010 (ECF 54 & 55 respectively); SPI and Howell filed their answers to the second amended complaint on June 15, 2010 (ECF 56 & 57 respectively).
SPI and Howell (together, for purposes of this order, "defendants") filed the present motion for summary judgment on February 29, 2012. (ECF 417.) Plaintiff filed its opposition on March 28, 2012.*fn2 (ECF 434.) Defendants filed their reply on April 5, 2012. (ECF 449.)
A. Evidentiary Objections*fn3
Defendants ask the court to strike plaintiff's separate statement for violating Local Rule 260 (mistakenly referred to as Rule 206), Federal Rule of Civil Procedure 11, and 28 U.S.C. § 1927. (ECF 450.) Defendants contend plaintiff's "undisputed facts" are in fact "hotly disputed." The same can be said of defendants' statement. This request is denied.
Defendants object to the Declaration of Joshua White, current Deputy Chief for the California Department of Forestry and Fire Protection who was a lead investigator of the Moonlight Fire, as a sham affidavit. (See ECF 450 at ¶ 32.) "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Nelson v. City of Davis, 571 F.3d 924, 927 (9th Cir. 2009) (internal quotation omitted). This rule "should be applied with caution." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (internal quotation omitted). The sham affidavit rule "does not apply to every instance when a later affidavit contradicts deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991). Before applying the sham affidavit rule, "the district court must make a factual determination that the contradiction was actually a 'sham.'" Id. "[T]he inconsistency between a party's deposition testimony and affidavit must be clear and unambiguous to justify striking the affidavit." Van Asdale, 577 F.3d at 989-99. The court will not strike the White Declaration in whole; rather, it will follow the Ninth Circuit's guidance with respect to individual facts the court relies on here.
Defendants also object in particular to the portions of the White Declaration in which White makes statements regarding what Kelly Crismon, the Howell employee operating the bulldozer that allegedly ignited the Moonlight Fire, told him as hearsay and lacking foundation. (See ECF 450 ¶ 32.) "Only admissible evidence may be considered in ruling on a motion for summary judgment." Collier v. Turner Indus. Group, L.L.C., 797 F. Supp. 2d 1029, 1039 (D. Idaho 2011) (citations omitted). These statements are admissible as party admissions as to Howell. FED. R. EVID. 801(d)(2); cf. Fenner v. Dependable Trucking Co., 716 F.2d 598 (9th Cir. 1983); see also Hughes v. United States, 953 F.2d 531, 543 (9th Cir. 1992) ("[T]he facts underlying the affidavit must be of a type that would be admissible as evidence . . . ."). SPI and Howell's relationship is discussed below at pages 10-13. As will be discussed, Howell's status in relation to SPI is a triable question of fact; in any event, "a finding that a speaker is an independent contractor does not preclude a finding that the speaker is also an agent for some purposes." United States v. Bonds, 608 F.3d 495, 505 (9th Cir. 2010) (emphasis omitted). Howell and, by extension, its employees can be agents of SPI for purposes of Rule 801(d)(2)(D) where there is "evidence [SPI, as principal] directed or controlled any of [Howell's] activities." Collier, 797 F. Supp. 2d at 1040 (internal quotation omitted). On summary judgment, all inferences are drawn in favor of the nonmoving party. Accordingly, Crismon's statements to White are admissible for purposes of deciding the pending motion; this "does not mean the opinion is admissible at trial." Collier, 797 F. Supp. 2d at 1041.
Defendants object to other portions of the White Declaration as being based on speculation and lacking foundation. (See ECF 450 ¶ 30.) The court will address such objections as necessary below, but defendants' general objection to the White Declaration on these grounds is overruled.
Defendants' objections to the admissibility of Exhibits H, V and AA of the Elias Declaration based on lack of foundation are overruled. (ECF 450 ¶¶ 105, 127 and 118.) It is well established that "[a] document which lacks a proper foundation to authenticate it cannot be used to support a motion for summary judgment." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1551 (9th Cir. 1989). The Elias Declaration states Exhibit H "is a copy of selected excerpts from the deposition of Damon Baker testifying as a corporate representative under Rule 30(b)(6)," Exhibit V "is a copy of selected excerpts of the deposition of Edward Murphy testifying as a corporate representative for Sierra Pacific under Rule 30(b)(6)," and Exhibit AA is "a copy of selected excerpts from the deposition of John Forno, a Sierra Pacific forester." (Elias Decl. ¶¶ 3, 17 and 22.) Each exhibit "identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent." Orr v. Bank of Am., 285 F.3d 764, 774 (9th Cir. 2002). Accordingly, the depositions do not lack foundation. Defendants' objections to Exhibit H based on hearsay and lack of foundation are also overruled for the same reasons the objections to Crismon's statements to White were overruled: the testimony of Baker, Howell's designated representative, as to what Forno, SPI's forester, told him is not hearsay but a party admission. The court notes that defendants do not dispute the fact of what was said for purposes of this motion. (ECF 450 ¶ 105.)
Defendants also object to many of plaintiff's proffered facts by claiming they lack foundation. (See, e.g., ECF 450 ¶ 101.) "On summary judgment, evidence need not be in a form that is admissible at trial. [citation] Accordingly, as long as a party submits evidence, which, regardless of its form, may be admissible at trial, it may be considered on summary judgment." Collins v. Mendoza-Powers, No. 1:06-CV-1608-AWI-GSA, 2009 Dist. LEXIS 13468, at *15 n.4 (E.D. Cal. Feb. 23, 2009). Defendants' lack of foundation objections are overruled, unless otherwise stated below.
Defendants also object to much of plaintiff's proffered evidence as being immaterial. (See, e.g., ECF 450 ¶ 74.) The court is only concerned here with issues of material fact; accordingly, if the court has considered a fact, the court has deemed it to be material. This objection will not be addressed on a fact-by-fact basis.
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).*fn4
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 "[cite] 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 that 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 nonmoving party, there is no 'genuine issue for trial.'" Matsushita, ...