NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 11 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SWEET PEOPLE APPAREL, INC., DBA No. 18-55036 Miss Me, a California corporation and RCRV, INC., DBA Rock Revival, a D.C. No. California corporation, 2:16-cv-00940-TJH-JC

Plaintiffs-Appellants,

MEMORANDUM*

v.

PHOENIX FIBERS, INC., an Arizona corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Terry J. Hatter, District Judge, Presiding

Argued and Submitted December 7, 2018 Pasadena, California

Before: WARDLAW and OWENS, Circuit Judges, and DORSEY,** District Judge.

Sweet People Apparel, Inc. and RCRV, Inc. (“Sweet People”) appeals the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer A. Dorsey, United States District Judge for the District of Nevada, sitting by designation. district court’s grant of summary judgment in favor of Phoenix Fibers, Inc.

(“Phoenix Fibers”) in its breach of contract, unfair competition, and trademark

infringement action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm.

1. The district court properly granted summary judgment in favor of

Phoenix Fibers because Sweet People failed to establish, with admissible evidence,

its prima facie case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

After Phoenix Fibers lodged objections to the evidence that Sweet People filed

with its opposition to summary judgment, Sweet People bore the burden “to show

that the material is admissible as presented or to explain the admissible form that is

anticipated.” Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendment

(explaining Fed. R. Civ. P. 56(c)(2)). But Sweet People failed to respond to

Phoenix Fibers’ objections.

Because Sweet People failed to demonstrate or explain the admissibility of

its proffered evidence, the district court did not abuse its discretion in excluding

Sweet People’s unauthenticated deposition transcripts and emails, see Las Vegas

Sands, LLC v. Nehme, 632 F.3d 526, 532–33 (9th Cir. 2011), as well as the

inadmissible portions of its declarations, see, e.g., Fed. R. Evid. 602, 801, from its

consideration of Phoenix Fibers’ motion for summary judgment. See Hooper v.

Lockheed Martin Corp., 688 F.3d 1037, 1051–52 (9th Cir. 2012). The district

court bore no burden to “comb through the voluminous record searching for 2 evidentiary bases to introduce the evidence at issue” without Sweet People’s

guidance. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 386 (9th Cir. 2010).

Therefore, the district court did not err in concluding that Phoenix Fibers “is

‘entitled to a judgment as a matter of law’ because [Sweet People] has failed to

make a sufficient showing on an essential element of [its] case with respect to

which [it] has the burden of proof.” Celotex Corp., 477 U.S. at 323 (quoting Fed.

R. Civ. P. 56(a)).

2. Sweet People waived its right to challenge the district court’s evidentiary

rulings. “It is well established that an appellate court will not reverse a district

court on the basis of a theory that was not raised below.” Alaska Airlines, Inc. v.

United Airlines, Inc., 948 F.2d 536, 546 n.15 (9th Cir. 1991). For the first time on

appeal, Sweet People attempts to respond to Phoenix Fibers’ evidentiary objections

and argues that the district court erroneously excluded its proffered evidence. But

Sweet People “did not raise these arguments before the district court in [its]

opposition to summary judgment, so they [are] waived.” Loomis v. Cornish, 836

F.3d 991, 997 (9th Cir. 2016); see also Coomes v. Edmonds Sch. Dist. No. 15, 816

F.3d 1255, 1261 n.4 (9th Cir. 2016) (“We decline to address new evidence cited

for the first time on appeal to seek reversal of a lower court’s summary judgment

determination.”).

AFFIRMED.

3

FILED

Sweet People Apparel, Inc. v. Phoenix Fibers, Inc., No. 18-55036

JAN 11 2019

Dorsey, District Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I would reverse the district court’s grant of summary judgment in favor of

Phoenix Fibers for two independent reasons.

1. The district court concluded that Sweet People failed to establish a prima

facie case only because it precluded much of the evidence that Sweet People

proffered in opposition to Phoenix Fibers’s motion. In excluding this evidence, the

court applied the outdated standard that only evidence that is authenticated and

admissible in its present form may be considered at the summary-judgment stage.

See Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). But the 2010

amendment to Federal Rule of Civil Procedure 56 “eliminate[d] th[is] unequivocal

requirement” and mandates only that the substance of the proffered evidence

would be admissible at trial. Romero v. Nev. Dep’t of Corr., 673 F. App’x 641,

644 (9th Cir. 2016); see also Fed. R. Civ. P. 56 advisory comm. note to 2010

amendment; Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th

Cir. 2017); Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231,

238 (3d Cir. 2016); Humphreys & Partners Architects, L.P. v. Lessard Design,

Inc., 790 F.3d 532, 538 (4th Cir. 2015); Jones v. UPS Ground Freight, 683 F.3d

1283, 1293–94 (11th Cir. 2012). As in Orr, the district court here excluded Sweet People’s deposition

transcripts because they lacked a reporter’s certification. See Orr, 285 F.3d at 774.

Because the court applied an incorrect legal standard, it abused its discretion. See

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). And although Sweet

People had the burden of demonstrating that its evidence could be presented in an

admissible form, the deposed witnesses were all listed on the parties’ joint trial

witness list, so it should have been apparent that the evidence’s substance—the

witnesses’ intended trial testimony—would not have required authentication. See

Lee, 859 F.3d at 355 (holding that the district court erred in dismissing a “report

solely because it was not sworn [and] without considering [the appellant’s]

argument that” the report’s author “would testify to those opinions at trial”);

Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“[W]e need not decide

whether the diary itself is admissible. It would be sufficient if the contents of the

diary are admissible at trial, even if the diary itself may be inadmissible.”). This

case is thus distinguishable from In re Oracle Corporation Securities Litigation, in

which the district court would have had to proactively conceive of permissible,

non-hearsay applications of the proffered evidence in a record that consisted of

“over 134 deposition days, countless discovery requests and answers, and over 2.1

million pages of documents.” 627 F.3d 376, 385 (9th Cir. 2010) (“As the

2 experienced district judge quipped, the word ‘voluminous’ does not do justice to

the record in this case.”).

Instead of addressing the district court’s application of an incorrect legal

standard, the majority concludes that Sweet People waived its challenges to the

evidentiary rulings by failing to respond to Phoenix Fibers’s objections. But this

court “will not deem [an] issue waived if the district court actually considered it.”

Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir. 2007). Here, the

court below considered Phoenix Fibers’s evidentiary objections on their merits

rather than deeming Sweet People’s non-response as consent to sustaining them.

And “even if the precise issue we face has been raised for the first time on appeal,

the waiver rule is not one of jurisdiction, but discretion. We can exercise that

discretion to consider a purely legal question when the record relevant to the matter

is fully developed.” United States v. Northrop Corp., 59 F.3d 953, 958 n.2 (9th

Cir. 1995). The question of whether the court below applied the correct legal

standard is purely legal, and district courts in this circuit (and the litigants who

practice before them) would be well served by guidance on the continued viability

of Orr after the 2010 amendment to Rule 56.

2. Even if the district court had correctly excluded the three categories of

evidence it addressed, I would still reverse its grant of summary judgment. Unlike

the depositions and emails, which were excluded in full, the district court excluded

3 unspecified portions of the two declarations Sweet People proffered. The court

then granted Phoenix Fibers summary judgment in a single concluding sentence:

“After disregarding the portions of the two declarations that contained inadmissible

evidence, the remaining portions were insufficient to satisfy Plaintiffs’ burden of

establishing a prima facie case for any of its’ [sic] claims.” But it is unclear what

portions of those declarations the court deemed admissible. Additionally, Sweet

People submitted evidence with its opposition beyond the depositions, emails, and

declarations, such as discovery responses and invoices stemming from Phoenix

Fibers’s resale of its products. Phoenix Fibers objected to only some of this

evidence, but the district court limited its analysis to the three categories of

evidence it excluded. We therefore have no means of discerning what evidence the

district court considered, so we cannot adequately review whether Sweet People

presented sufficient evidence to survive summary judgment.

For these reasons, I respectfully dissent.

4