The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
This is a fair housing case. The Defendants are the owner and manager of the Sea Coast Apartments in the Ocean Beach neighborhood of San Diego. The Plaintiffs are the Sanders-Williams family. James and Jamia Sanders live at Sea Coast. Their daughter, Stephanie Sanders, and her husband, Jordan Williams, are regular visitors, along with their three minor children, C.C., C.W., and T.W. The essence of Plaintiffs' complaint is that the onsite manager of Sea Coast, Doris Edmiston, repeatedly forbade the minor children from playing in common areas in a manner that discriminated against families with children. Now pending is Plaintiffs' motion for partial summary judgment.
Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). It is Plaintiffs' burden, as the moving party, to show there isn't one. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The Court considers the record as a whole and draws all reasonable inferences in the light most favorable to the Defendants. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). It may not make credibility determinations or weigh conflicting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the Court determines whether the record "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251--52. Not all alleged factual disputes will serve to forestall summary judgment; they must be both material and genuine. Id. at 247--49. "If conflicting inference may be drawn from the facts, the case must go to the jury." LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000) (citations omitted).
There are some preliminary disputes between the parties that the Court must address before turning to the core summary judgment question.
A. Defendants' Objections to Evidence
Defendants first ask the Court to reject all of the evidence Plaintiffs have offered in support of summary judgment because they failed to provide initial disclosures under Fed. R. Civ. P. 26(a)(1). Typically, "[i]f a party fails to provide information or identify a witness as required by Rule 26(a), the party is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). In evaluating justification and harmlessness, the Court considers "(1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence." Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed.Appx. 705, 713 (9th Cir. 2010).
It's unclear whether Plaintiffs never provided initial disclosures, which is a big problem, or simply provided them past the deadline set by the Court, which is a much smaller one. In their Objection to Evidence, Defendants initially suggest the former: "On December 13, 2011, this Court ordered the parties to engage in an initial disclosure by January 23, 2012. Defendants complied with that request, but Plaintiffs failed to ever serve an initial disclosure in this case." (Doc. No. 59 at 2.) But then Defendants take Plaintiffs to task for failing to identify particular witnesses in their initial disclosures, which obviously implies they provided some. (Id.) This objection is therefore OVERRULED. As the Court reads the record, Plaintiffs got their initial disclosures to Defendants about 10 days after the January 23, 2012 deadline set by the Court. There are no signs whatsoever that this prejudiced the Defendants or harmed their ability to oppose Plaintiffs' summary judgment motion.
Defendants also ask the Court to disregard the deposition testimony of Stephanie Olvera and Brandi Stepp because they weren't identified as witnesses in Plaintiffs' initial disclosures. Here again, any omission appears to have been harmless. Ms. Olvera was deposed on June 7, 2012, and Ms. Stepp was deposed on April 6, 2012. Defendants' counsel received notice of these depositions and was able to cross-examine both witnesses. The objection is OVERRULED.
B. Plaintiffs' Objections to Evidence
In support of their opposition to summary judgment, Defendants submitted the declarations of four present and past residents of Sea Coast: Ashley Kimble, Rubin Delgado, Denise Duim, and Dori Hoadley. (See Doc. Nos. 57-5, 57-6, 57-7, 57-8.) Each stated that they had children who were treated kindly by the Sea Coast management, and that they never felt discriminated against by the onsite manager Doris Edmiston. Plaintiffs object that these residents were never identified in Defendants' initial Rule 26 disclosures or interrogatory responses, that their statements are not relevant, and that they have not been cross-examined.
This objection is SUSTAINED. The Court sees that these witnesses were identified in Defendants' October 8, 2012 pretrial disclosures pursuant to Rule 26(a)(3), but apparently not before then. The testimony of witnesses identified for the first time in pretrial disclosures may be excluded under Rule 37(c)(1), unless the late disclosure is either substantially justified or harmless. See Murray v. Holiday Isle, LLC, 2009 WL 1211391 at *1 (S.D. Ala. May 1, 2009). Here, however, it appears to be neither. Defendants filed a sur-reply which doesn't address Plaintiffs' evidentiary objections at all, so the Court presumes they have nothing or little to say in response. (Doc. No. 63.) It appears that Defendants simply got the residents to sign favorable declarations to supplement their ...