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Felix v. Anderson

United States District Court, N.D. California

June 29, 2016

SCOTT EMERSON FELIX, et al., Plaintiffs,



         Plaintiffs Scott Emerson Felix and Patricia Shuey allege six causes of action: (1) Fraud, (2) Constructive Fraud, (3) Conversion, (4) Constructive Trust, (5) Resulting Trust, and (6) Accounting. Dkt. No. 61. Pending before the Court is Defendant Karin Anderson’s motion for summary judgment on grounds that the statutes of limitations for the claims have passed. Having reviewed the parties’ arguments, the Court GRANTS IN PART and DENIES IN PART the motion for summary judgment.[1]


         Summary judgment must be entered against a party who, after adequate time for discovery and upon motion, fails to make a showing sufficient to establish an element essential to that party’s case, and on which that party would bear the burden of proof at trial. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A party moving for summary judgment may carry its initial burden by pointing out to the district court that there is an absence of a genuine issue of material fact. Id. at 323. To avoid summary judgment, the nonmovant must set forth specific facts showing that there remains a genuine issue of material fact for trial. Id. at 324. A factual dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in the nonmovant’s favor. Id. at 255. If the nonmoving party’s evidence is merely colorable or is not significantly probative, then summary judgment may be granted. Id. at 249-50.


         Defendant moves for summary judgment, arguing that the statutes of limitations on Plaintiffs’ claims have passed.

         A. Evidentiary Objections

         “To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.” Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001); see also Chartis Specialty Ins. Co. v. Aqua Scis. Engineers, Inc., No. 11-CV-03669-JST, 2013 WL 4647288, at *3 (N.D. Cal. Aug. 29, 2013) (“The Court’s focus at summary judgment is not on the form of the evidence submitted, but on whether its content would be admissible.”). Rule 56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed.R.Evid. 401.

         For example, “hearsay evidence attached to an affidavit may be considered at summary judgment if the out-of-court declarant could present the evidence through direct, admissible testimony at trial.” Chartis Specialty Ins. Co., 2013 WL 4647288, at *3 (citing Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)). However, because “[a]uthentication is a condition precedent to admissibility, ” “unauthenticated documents cannot be considered in a motion for summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). Documents can be authenticated by any manner permitted by Federal Rules of Evidence 901(b) or 902, not just personal knowledge. Id. at 774.

         1. Plaintiffs’ Evidentiary Objection

         The Court denies Plaintiffs’ objection to Gregory Clayton’s Investigation Report (“the 2007 Report”), see Dkt. No. 92, Ex. A. Clayton’s declaration established that the report is his work product, on letterhead, matching letterhead he used at the time the report was made, signed by him, and created using a real estate tool he routinely uses when conducting investigations. Dkt. No. 92 at ¶ 3. Clayton’s declaration further establishes, based on his routine business practices at the time, that he was contacted by Felix in July 2007 to investigate the matters contained in the 2007 Report. The Court finds the report properly authenticated, see Fed. R. Evid. 901(b)(1), (4).

         2. Defendant’s Evidentiary Objections

         Defendant makes several objections to Felix’s declaration and attached Exhibits A through D, see Dkt. No. 96. To the extent that the Court relies on this evidence in this order, it has only relied on relevant evidence. See Neal v. Juarez, No. 06CV0055 J(JMA), 2007 WL 2140640, at *2 (S.D. Cal. July 23, 2007) (“Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)). The Court further notes that it has only considered testimony and evidence that is based on Felix’s personal knowledge and that is not inadmissible hearsay testimony. Accordingly, the Court has not considered the portions of Felix’s declaration and attached exhibits that do not pertain to the alleged agreement between Defendant and Plaintiff Patricia Shuey or the properties relevant in this action. The Court addresses Defendant’s specific objections, if relevant to the outcome of the order, below.

         B. Causes of Action 1-4: Fraud, Constructive Fraud, ...

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