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Gress v. Smith

United States District Court, E.D. California

March 30, 2018

MICHAEL GRESS, Plaintiff,
v.
DR. CHRISTOPHER SMITH, et al., Defendants.

          ORDER

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding through counsel, with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed a motion to strike defendants' reply to plaintiff's opposition to the pending motions for summary judgment. Plaintiff asks the court to strike the reply in its entirety or, in the alternative, to strike all new evidence, inadmissible evidence, and new facts, and seeks sanctions and/or attorney fees. Defendants oppose the motion.

         Letter Rejecting VCGCB Claim

         Specifically, plaintiff objects to paragraph 3 of defense counsel's declaration in which counsel states that on August 10, 2015, his office sent a letter to the Victim Compensation and Government Claims Board (“VCGCB”) requesting copies of plaintiff's claim and related records, and defense counsel appended the records to his declaration. (ECF No. 164-2 at 2.) Plaintiff argues that despite counsel having such evidence at the time the dispositive motions were filed, counsel waited and appended the evidence to the reply. In addition, plaintiff objects that defendants sought such evidence after formal discovery closed on June 7, 2015, and then failed to provide plaintiff with a copy of the documents received, in violation of mandatory discovery rules. (ECF No. 165 at 3, citing Fed.R.Civ.P. 26(a).) Plaintiff seeks sanctions or attorneys' fees for such violation.

         In his opposition to the motions for summary judgment, plaintiff does not dispute the filing or rejection dates relied upon by defendants. (ECF No. 130 at 48-51.) Rather, plaintiff argues that it is defendants' burden to put forward evidence, and contends defendants put forward no evidence that plaintiff received notice from the VCGCB, evidence of the date plaintiff received such notice, or evidence identifying the date the statute would run. (ECF No. 130 at 48.) In the alternative, plaintiff argues that numerous exceptions apply, including tolling. (ECF No. 130 at 49-51.)

         In their reply, defendants note that plaintiff did not expressly dispute the filing or rejection dates in his opposition, but defendants submitted the claim and rejection letter so that “there can be no dispute as to the material facts at issue.” (ECF No. 164 at 13.) In opposition to the motion to strike, defendants argue that the evidence plaintiff seeks to strike is not necessary to support defendants' claim that the state law claim is untimely because defendants properly relied on the facts alleged in plaintiff's operative complaint. (ECF No. 166 at 2.) Defendants rely on Rule 801(d)(2) of the Federal Rules of Evidence, as well as Lockwood v. Wolf Corp., 629 F.2d 603, 611 (9th Cir. 1980) (“The party moving for summary judgment must offer evidence sufficient to support a finding upon every element of his claim for relief, except those elements admitted by his adversary.”) Nevertheless, defendants argue that the submission of this evidence with the reply was harmless as plaintiff was clearly in possession of the documents. Thus, defendants contend the motion is without merit, should be denied, and no sanctions imposed because the failure to earlier obtain or disclose the evidence was substantially justified and harmless.

         When new evidence or information is raised in a reply brief, courts have discretion to strike such new material. Tovar v. U.S. Postal Service, 3 F.3d 1271, 1273 n.3 (9th Cir. 1993) (court struck portions of a reply brief that presented new information). “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). “Rule 37(c)(1) is a ‘self-executing, ' ‘automatic' sanction designed to provide a strong inducement for disclosure.” Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011), citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); Fed.R.Civ.P. 37 advisory committee's note to 1993 amendment). “Two express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless. Fed.R.Civ.P. 37(c)(1).” Yeti, 259 F.3d at 1106.

         Initially, the undersigned notes that defendants properly invoked their affirmative defense that plaintiff's state law claims for medical malpractice are barred by the statute of limitations. Defendants preserved the defense by pleading the affirmative defense in their answer. (ECF No. 56 at 3.) Indeed, in their motions for summary judgment, defendants argued that “plaintiff's state law claim for medical malpractice fails as a matter of law because the six month statute of limitations provided by the California Government Claims Act ran long before [plaintiff] filed this action.” (ECF No. 103 at 2; 11; see also ECF No. 104 at 2; etc.) Contrary to plaintiff's argument that defendants failed to identify a date for the running of the limitations period, defendants argue that the six month limitations period began to run on August 18, 2011, the date the VCGCB rejected plaintiff's claim, and expired on February 18, 2012, yet the instant action was not filed until February 20, 2013. (See, e.g., ECF No. 103 at 11.) Plaintiff may disagree that the question of whether the malpractice claim is barred by the statute of limitations can be resolved as a matter of law. Indeed, “[t]he issue may be resolved ‘as a matter of law' only if the facts are undisputed.” Adams v. Paul, 11 Cal.4th 583, 589, 46 Cal.Rptr.2d 594 (1995). But plaintiff's disagreement with defendants' position does not preclude defendants from making such argument. In any event, whether or not defendants provided documents from the VCGCB with his reply, their affirmative defense was properly invoked, and the issue was not a “new” issue raised for the first time in defendants' reply.

         Further, as required under California law, [1] the second amended complaint, filed on June 11, 2014, by plaintiff's counsel, states:

29. With the help and direction of fellow inmates and with extreme difficulty, Plaintiff presented a claim to the [VCGCB] on May 14, 2011.
30. On May 27, 2011, the VCGCB received Plaintiff's claim and assigned number G598544.
31. On August 18, 2011, the VCGCB conducted a hearing and rejected Plaintiff's claim. The VCGCB based its rejection on the fact that the issues presented by Plaintiff were “complex.”

(ECF No. 53 at 4.) Thus, plaintiff affirmatively pled, as a condition precedent to the bringing of such a claim, that the VCGCB rejected plaintiff's claim on August 18, 2011. The documents appended to the reply reiterate the facts set forth in plaintiff's operative complaint.

         Plaintiff's allegations demonstrate that plaintiff was in possession of the documents filed with the reply because plaintiff's counsel quotes from both letters accepting and rejecting plaintiff's claim. Because plaintiff was in possession of such information at the time he filed the second amended complaint on June 11, 2014, any failure by defense counsel to provide plaintiff's counsel with a copy of the claim and VCGCB letters requested on August 10, 2015, was harmless, and was also substantially justified because it appeared from the amended pleading that plaintiff ...


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