Case 5:08-cv JLQ -OP Document 79 Filed 06/16/11 Page 1 of 52 Page ID #:2756

Transcription

1 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 W. Lee Smith, S.B.N. lsmith@michellawyers.com Scott M. Franklin, S.B.N. 0 sfranklin@michellawyers.com MICHEL & ASSOCIATES, P.C. 0 E. Ocean Blvd., Suite 00 Long Beach, CA 00 Telephone: () - Facsimile: () - Attorneys for Defendant San Gabriel Valley Gun Club UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CALMAT CO. dba VULCAN ) MATERIALS COMPANY, ) WESTERN DIVISION, a Delaware ) corporation, ) ) Plaintiff, ) ) v. ) ) SAN GABRIEL VALLEY GUN ) CLUB, a non-profit California ) corporation, and DOES through 0, ) inclusive, ) ) Defendants. ) ) ) ) AND RELATED COUNTER-CLAIM. ) ) ) CASE NO: EDCV0-0 JLQ(OPx) RESPONSE TO PLAINTIFF S EVIDENTIARY OBJECTIONS TO AND REQUEST TO STRIKE PORTIONS OF THE DECLARATION OF SCOTT M. FRANKLIN OFFERED IN SUPPORT OF SAN GABRIEL VALLEY GUN CLUB S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY JUDGMENT AS TO PORTIONS OF PLAINTIFF S COMPLAINT Hon. Justin L. Quackenbush Date: June, 0 Time: 0:00 AM Courtroom: Defendant San Gabriel Valley Gun Club (the Club ) hereby submits this response to Plaintiff Calmat Company dba Vulcan Materials Company, Western Division s ( Vulcan ) Evidentiary Objections to, and Request to Strike Portions of, the Declaration of Scott M. Franklin in Support of San Gabriel Valley Gun Club s Motion for Summary Judgment, or in the Alternative, Summary Judgment as to Portions of Plaintiff s Complaint ( Vulcan s Objections ). Vulcan s objections, many of which are authentication objections as to documents Vulcan itself produced in this action, should be overruled for the reasons stated herein.

2 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 EVIDENTIARY OBJECTIONS TO DECLARATION OF SCOTT M. OBJECTION NO. : FRANKLIN AND RESPONSES THERETO Declaration of Scott M. Franklin ( Franklin Decl. ) p., and Exhibit C. Attached as Exhibit C to this Declaration is a true and correct copy of a letter from Don F. Tierney of the Club to Harry Jumper of Consolidated Rock Products Company dated January,, produced by Vulcan in this case. Objections. Lack of Personal Knowledge. Fed R. Evid. 0. Lack of Authentication. Fed. R. Evid. 0. Franklin provides no testimony that he has personal knowledge of the document such that he is able to authenticate it as required by the Federal Rules of Evidence. See, e.g., Estremera v. United States Fd 0, (th Cir. 00) [] (declaration of attorney insufficient to authenticate documents where knowledge was based only upon interviews with witnesses and review of documents); see also, Request to Strike, below. Hearsay. Fed. R. Evid. 0, 0. The contents of the letter are out of court statements improperly being offered for the truth of what they assert. RESPONSE TO OBJECTION NO. : Fed. R. Evid. 0. Rule 0 states [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 0. A similar requirement is found in Federal Rule of Civil Procedure ( FRCP ) (c)() regarding certain affidavits or declarations ( [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge ). Errors in Vulcan s repeated citation of Estremera are corrected throughout the remainder of this document.

3 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 Franklin, as an attorney for the Club in this matter (and has been since before Vulcan filed suit on September, 00; see Supplemental Declaration of Scott M. Franklin filed herewith [ Supp. Franklin Decl. ] at ), has personal knowledge of what documents have been produced by Vulcan to the Club in this action, including, as stated in of the Franklin Decl., the document attached thereto as Exhibit C. Thus, the statement of Franklin Decl. at is within Franklin s knowledge, proving Vulcan s Rule 0 objection is without merit. Fed. R. Evid. 0. Rule 0(a) states: [t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Documents produced in discovery are considered authenticated for use by a party-opponent, presuming there is no dispute such production actually occurred. Orr v. Bank of Am., NT & SA, F.d, n.0 (th Cir. 00) ( documents produced by a party in discovery were deemed authentic when offered by the party-opponent ) (citing, among others, Maljack Prods., Inc. v. GoodTimes Home Video Corp., F.d, n. (th Cir.)). Vulcan apparently chooses to ignore on point Ninth Circuit authority like Orr and Maljack and instead (mis)cites a Seventh Circuit case (Estremera, F.d at -) that is completely off point. The question at issue in Estremera was whether an affidavit based on the attorney s review of the relevant Further, Federal Rule of Civil Procedure (e) does not require that all documents be authenticated through personal knowledge when submitted in a summary judgment motion. Orr, F.d at - n. (also citing Fed. R. Evid. 0(b)() (authenticity may be satisfied by the [a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances ). Because Vulcan cannot provide any legitimate argument that any of the documents it produced in discovery are not reasonably subject to authentication based on factors listed in Rule 0(b)(), all of those documents meet the authentication requirements for documents relied on in summary judgement briefing.

4 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 documents was based on sufficient personal knowledge to satisfy FRCP Rule (e), where the attorney did not introduce into the record the documents he relied on in his affidavit. Id. Additionally, even though Vulcan plainly indicates Estremera concerns authentication of documents, Estremera never mentions either Rule 0 or authentication. Thus, unless Vulcan is attempting to raise the argument that this document (a document Bates stamped with a Vulcan identifier, nonetheless) was not produced to the Club by Vulcan in this action (which the Club obviously denies), Vulcan s Rule 0 objection must fail and should therefore be overruled. Fed. R. Evid. 0, 0. Rules 0 and 0 state that [h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted and that [h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. Plainly, this document falls within the hearsay inadmissability exception known as the ancient document exception. Fed. R. Evid. 0() ( [s]tatements in a document in existence twenty years or more the authenticity of which is established ). The document at issue is dated January,, and was produced by Vulcan in this matter (thus establishing authenticity). Vulcan s hearsay argument clear fails in light of the ancient document exception. Additionally, at least two other hearsay inadmissability exceptions apply: Rule 0(), the business records exception (the document effectively memorializes matters related to the execution of a permit related to a landlord/tenant relationship, found in the records of the landlord), and Rule 0, All references to Rule (e) in this document refer to the Rule prior to the major amendment of Rule that occurred in 00.

5 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 0 0 the residual exception, which provides an exception for statement[s] not specifically covered by Rule 0 or 0 but having equivalent circumstantial guarantees of trustworthiness... Thus, because Vulcan s hearsay objection is unfounded, it should be overruled. OBJECTION NO. : Franklin Decl. p., and Exhibit E. Attached as Exhibit E to this Declaration is a true and correct copy of portions of Vulcan s Supplemental Response to the First Set of Requests for Admission propounded by the Club. Objections. Cited portions not attached. The portions of this document cited in Defendants Proposed Uncontroverted Fact No. are not attached to the declaration. RESPONSE TO OBJECTION NO. : Assuming Objection No. refers to Exhibit E (which is not discussed in of the Franklin Decl.) when meaning to refer to Exhibit D (which is discussed in of the Franklin Decl.) as the result of a typographical error, Objection No. has merit. The First SMF Decl. itself included an error, in that the document attached thereto as Exhibit D should have been a portion of a specific interrogatory response provided by Vulcan in this action, and not the document that was actually provided, a portion of a response to a specific request for admission. (See Supp. Franklin Decl. at ). The unintentionally omitted document has been provided to opposing counsel and is provided as an attachment to the Supp. Franklin Decl. (Id.). Ultimately, as the interrogatory response at issue was produced by Vulcan in this action, this objection should be overruled.

6 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 OBJECTION NO. : Franklin Decl. p., and Exhibit I. Attached as Exhibit I to this Declaration is a true and correct copy of a photograph of the Site dated June,. Objections. Lack of Personal Knowledge. Fed R. Evid. 0. Lack of Authentication. Fed. R. Evid. 0. Mr. Franklin provides no testimony that he has personal knowledge of the document such that he is able to authenticate it as required by the Federal Rules of Evidence. See, e.g., Estremera v. United States, F.d 0, - (th Cir. 00) (declaration of attorney insufficient to authenticate documents where knowledge was based only upon interviews with witnesses and review of documents); see also, Request to Strike, below. Hearsay. Fed. R. Evid. 0, 0. The contents of the photograph are out of court statements improperly being offered for the truth of what they assert. RESPONSE TO OBJECTION NO. : Vulcan s personal knowledge, authentication, and hearsay objections are absurd: Vulcan has admitted the photograph at issue is genuine, and that it accurately depicts the SUBJECT PROPERTY as of June,. (See Franklin Decl. at Ex. B). Though it is unreasonable for Vulcan to argue that it did not know the copy of the photograph dated (on its face) June,, provided with the Franklin Decl. as Exhibit I was a copy of the abovementioned photograph (dated June,, on its face) Franklin provides a statement in the declaration filed herewith to confirm the foregoing, a statement he can make because he was the person who provided Vulcan access to the photograph for review. (Supp. Franklin Decl. at ). Vulcan s Objection No. should be overruled as Vulcan has already conceded the photo at issue is genuine and does not constitute or include hearsay. In an abundance of caution, however, the Club also notes that the photograph at issue is more than 0 years old and its authenticity is undisputed, thus it is exempt

7 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 from classification as inadmissible hearsay pursuant to the ancient documents exception. Fed. R. Evid. 0(). OBJECTION NO. : Franklin Decl. p., and Exhibit J. Attached as Exhibit J to this Declaration is a true and correct copy of a photograph of the Site dated January,. Objections. Lack of Personal Knowledge. Fed R. Evid. 0. Lack of Authentication. Fed. R. Evid. 0. Mr. Franklin provides no testimony that he has personal knowledge of the document such that he is able to authenticate it as required by the Federal Rules of Evidence. See, e.g., Estremera v. United States, F.d 0, - (th Cir. 00) (declaration of attorney insufficient to authenticate documents where knowledge was based only upon interviews with witnesses and review of documents); see also, Request to Strike, below. Hearsay. Fed. R. Evid. 0, 0. The contents of the photograph are out of court statements improperly being offered for the truth of what they assert. RESPONSE TO OBJECTION NO. : Fed. R. Evid. 0. Rule 0 states [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 0. A similar requirement is found in FRCP (c)() regarding certain affidavits or declarations ( [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge ). Franklin, as an attorney for the Club in this matter (and has been since before Vulcan filed suit on September, 00; see Supp. Franklin Decl. at ), has personal knowledge of what documents it has purchased from outside vendors for the purpose of this lawsuit, including Exhibit J attached to the Franklin Decl.

8 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 Thus, the statement of Franklin Decl. at is within Franklin s knowledge, proving Vulcan s Rule 0 objection is without merit. Further, as discussed below, the photograph at issue does not require authentication by declaration, thus making Vulcan s Rule 0 objection irrelevant. Fed. R. Evid. 0. Rule 0(a) states: [t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The issue for the trial judge under Rule 0 is whether there is prima facie evidence, circumstantial or direct, that the document is what it is purported to be. If so, the document is admissible in evidence.[citations] It then remains for the trier of facts to make its own determination of the authenticity of the admitted evidence and the weight which it feels the evidence should be given. Alexander Dawson, Inc. v. N.L.R.B., F.d 00, 0 (th Cir. ) (citations omitted); see also United States v. Black, F.d, (th Cir. ) (indicating a showing so that a reasonable juror could find in favor of authenticity or identification is a sufficient prima facie showing of authenticity for purposes of Rule 0). Here, the photograph at issue was obtained from Landiscor, an aerial information provider that has, [f]or more than fifty years..., photographed, logged and recorded the changing face of real estate in many major cities throughout the United States. (See Landiscor has taken thousands upon thousands of aerial photographs and have organized them into one of the nation's most complete real estate-oriented photo libraries, ranging from historical shots to new imagery[.] (Id.). Landiscor has provided an affidavit to the Club regarding the authenticity of the photo, and that affidavit is Exhibit to the Supp. Franklin Decl. at. Finally, it is worth noting that neither Vulcan s Evidentiary Objection nor Vulcan s Statement of Genuine Issues and Additional Material Facts filed therewith cites any evidence intended to

9 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 (let alone actually) rebutting the Club s contention regarding the substance of the photo (i.e., that the Waste Pile at issue in this case was present, though incomplete, as of January, ). Based on the information raised in the prior paragraph, the Club has plainly established prima facie evidence that the photo is what it is purported to be. See, e.g., Fed. R. Evid. 0(b)() (authenticity may be satisfied by the [a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances ). Specifically, under Rule 0(b)(), it should be noted that the photo in issue is over nineteen years old, just months shy of being within the express coverage of the ancient document exception, (see Fed. R. Evid. 0(b)()). Fed. R. Evid. 0, 0. Rules 0 and 0 state that [h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted and that [h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. First, though a trial date has not been set in this matter, is possible that this document will fall within the hearsay inadmissability exception known as the ancient document exception. Fed. R. Evid. 0() ( [s]tatements in a document in existence twenty years or more the authenticity of which is established ). The document at issue is dated January,, meaning it will be within the express scope of the ancient document within less than seven months of the filing of this document. To the extent any document facing a hearsay challenge herein is ) over nineteen years old and ) produced by Vulcan in discovery, the Club contends such documents, based on the two facts mentioned, should not be considered inadmissable hearsay pursuant to the residual exception. Fed. R.

10 Case :0-cv-0-JLQ -OP Document Filed 0// Page 0 of Page ID #: 0 0 Second, at least two other hearsay inadmissability exceptions apply: ) Rule 0(), the business records exception (the document is of the kind that is the stock and trade of Landiscor); and Rule 0, the residual exception, which provides an exception for statement[s] not specifically covered by Rule 0 or 0 but having equivalent circumstantial guarantees of trustworthiness... Given that the photo was obtained from a company that maintains a database of historic aerial photography as a key part of its business, and the photograph is nearly twenty years old, there is a sufficient basis to find the photo is exempted from being classified as inadmissible hearsay. Thus, because Vulcan s hearsay objection is unfounded, it should be overruled. OBJECTION NO. : Franklin Decl. p., and Exhibit L. Attached as Exhibit L to this Declaration is a true and correct copy of portions of a Workplan for Environmental Site Investigation of VMC-Owned Land at the San Gabriel Valley Gun Club, dated February 0, 00, prepared by ENV America, Inc., which the Club received from Vulcan in the initial disclosures required by FRCP in this case. Objections. Lack of Personal Knowledge. Fed R. Evid. 0. Lack of Authentication. Fed. R. Evid. 0. Mr. Franklin provides no testimony that he has personal knowledge of the document such that he is able to authenticate it as required by the Federal Rules of Evidence. See, e.g., Estremera v. United States, F.d 0, - (th Cir. 00) (declaration of attorney insufficient to authenticate documents where knowledge was based only upon interviews with witnesses and review of documents); see also, Request to Strike, below. Evid. 0. 0

11 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 RESPONSE TO OBJECTION NO. : Fed. R. Evid. 0. Rule 0 states [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 0. A similar requirement is found in FRCP (c)() regarding certain affidavits or declarations ( [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge ). Franklin, as an attorney for the Club in this matter (and has been since before Vulcan filed suit on September, 00; see Supp. Franklin Decl. at ), has personal knowledge of what documents have been produced by Vulcan to the Club in this action, including, as stated in of the Franklin Decl., the document attached thereto as Exhibit L. Thus, the statement of Franklin Decl. at is within Franklin s knowledge, proving Vulcan s Rule 0 objection is without merit. Fed. R. Evid. 0. Rule 0(a) states: [t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Documents produced in discovery are considered authenticated for use by a party-opponent, presuming there is no dispute such production actually occurred. Orr, F.d at n.0 ( documents produced by a party in discovery were deemed authentic when offered by the party-opponent ) (citing, among others, Maljack, F.d at n.). Vulcan apparently chooses to ignore on point Ninth Circuit authority like Orr and Maljack and instead (mis)cites a Seventh Circuit case (stremera, F.d at -) that is completely off point. The question at issue in Estremera was whether an affidavit based on the attorney s review of the relevant documents was based on sufficient personal knowledge to satisfy FRCP Rule (e), where the attorney did not introduce into the record the documents he relied on in his

12 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 affidavit. Id. Additionally, even though Vulcan plainly indicates Estremera concerns authentication of documents, Estremera never mentions either Rule 0 or authentication. Thus, unless Vulcan is attempting to raise the argument that this document (a document Bates stamped with a Vulcan identifier, nonetheless) was not produced to the Club by Vulcan in this action (which the Club obviously denies), Vulcan s Rule 0 objection must fail and should therefore be overruled. Fed. R. Evid. 0, 0. Finally, though Vulcan s evidentiary objection regarding Exhibit L does not raise a hearsay objection, Vulcan s Request to Strike alleges (without any factual analysis) that Exhibit L contains hearsay (meaning the allegation is conclusory and should be overruled on that basis). Regardless, [a] statement is not hearsay if... a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. Fed. R. Evid. 0(d)()(D). Exhibit L is not hearsay because it is sections of a workplan for environmental site investigation of VMC-owned land at the San Gabriel Valley Gun Club... prepared for Vulcan Materials Company... by ENV America Incorporated. Thus, any statements with the workplan are by Vulcan s servant, concerning a matter within the scope of... employment, made during the existence of the relationship. Additionally, even if the statement(s) at issue were considered hearsay, they would not be inadmissible because the workplan is not inadmissible hearsay based on the business records exception (Fed. R. Eivd. 0() and the residual exception I.e., the Workplan is a report... of... conditions,.... opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge,... kept in the course of a regularly conducted business activity, and [was created as part of] the regular practice of that business activity to make the... report[.] See Fed. R. Evid. 0().

13 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 (Fed. R. Evid. 0). OBJECTION NO. : Franklin Decl. p., and Exhibit M. Attached as Exhibit M to this Declaration is a true and correct copy of the Minutes of the Regular Meeting of the Executive Committee of Crystal, a California General Partnership, dated December,, produced by Vulcan in this case. Objections. Lack of Personal Knowledge. Fed R. Evid. 0. Lack of Authentication. Fed. R. Evid. 0. Mr. Franklin provides no testimony that he has personal knowledge of the document such that he is able to authenticate it as required by the Federal Rules of Evidence. See, e.g., Estremera v. United States, F.d 0, - (th Cir. 00) (declaration of attorney insufficient to authenticate documents where knowledge was based only upon interviews with witnesses and review of documents); see also, Request to Strike, below. Hearsay. Fed. R. Evid. 0, 0. The contents of the document are out of court statements improperly being offered for the truth of what they assert. RESPONSE TO OBJECTION NO. : Fed. R. Evid. 0. Rule 0 states [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 0. A similar requirement is found in FRCP (c)() regarding certain affidavits or declarations ( [a]n affidavit That Vulcan produced the Workplan as part of its Fed. R. Civ. P. (a) disclosure (i.e., it is a document... that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses ), along with the contents of the workplan and the fact that it was in Vulcan s possession, provides sufficient evidence of trustworthiness to make the document with the exception stated in Rule 0.

14 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 or declaration used to support or oppose a motion must be made on personal knowledge ). Franklin, as an attorney for the Club in this matter (and has been since before Vulcan filed suit on September, 00; see Supp. Franklin Decl. at ), has personal knowledge of what documents have been produced by Vulcan to the Club in this action, including, as stated in of the Franklin Decl., the document attached thereto as Exhibit M. Thus, the statement of Franklin Decl. at is within Franklin s knowledge, proving Vulcan s Rule 0 objection is without merit. Fed. R. Evid. 0. Rule 0(a) states: [t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Documents produced in discovery are considered authenticated for use by a party-opponent, presuming there is no dispute such production actually occurred. Orr, F.d at n.0 ( documents produced by a party in discovery were deemed authentic when offered by the party-opponent ) (citing, among others, Maljack, F.d at n.). Vulcan apparently chooses to ignore on point Ninth Circuit authority like Orr and Maljack and instead (mis)cites a Seventh Circuit case (Estremera, F.d at -) that is completely off point. The question at issue in Estremera was whether an affidavit based on the attorney s review of the relevant documents was based on sufficient personal knowledge to satisfy FRCP Rule (e), where the attorney did not introduce into the record the documents he relied on in his affidavit. Id. Additionally, even though Vulcan plainly indicates Estremera concerns authentication of documents, Estremera never mentions either Rule 0 or authentication. Thus, unless Vulcan is attempting to raise the argument that this document (a document Bates stamped with a Vulcan identifier, nonetheless) was not produced

15 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 0 0 to the Club by Vulcan in this action (which the Club obviously denies), Vulcan s Rule 0 objection must fail and should therefore be overruled. Fed. R. Evid. 0, 0. Rules 0 and 0 state that [h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted and that [h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. A statement is not hearsay if... the party's own statement, in either an individual or a representative capacity or,... a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. Fed. R. Evid. 0(d)(). Exhibit M is not hearsay because it is sections of Minutes of the Regular Meeting of the Executive Committee of Crystal a California General Partnership[.] Vulcan has never indicated in this action that it is not the successor-in-interest to Crystal partner Calmat Co. Thus, any statements with the minutes are not hearsay because they are by Vulcan itself, if not its servant concerning a matter within the scope of... employment, made during the existence of the relationship. Additionally, at least two hearsay inadmissability exceptions apply: Rule 0(), the business records exception (the document effectively memorializes matters related to the placement of material mined by Crystal and placed on the property leased by the Club at issue in this action); and Rule 0, the residual exception, which provides an exception for statement[s] not specifically covered by Rule 0 or 0 but having equivalent circumstantial guarantees of Indeed, the Club believes Vulcan cannot make such argument without undermining its entire case, as the Club understands that Vulcan s ownership of the property at issue was obtained when Calmat was acquired by Vulcan.

16 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 trustworthiness... Thus, because Vulcan s hearsay objection is unfounded, it should be overruled. OBJECTION NO. : Franklin Decl., Ex. P, Declaration of Thomas Sheedy, II. At the time tailings were deposited at the property leased by the San Gabriel Valley Gun Club, I was aware of the possibility that the tailings were being placed on top of a surface where bullets (partial or whole) were present. Objection. Relevance. Fed. R. Evid. 0. Whether Mr. Sheedy was aware of a possibility is not of consequence to the determination of any fact in this action. RESPONSE TO OBJECTION NO. : Fed. R. Evid. 0. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid. 0. Vulcan s relevance objection is ridiculous. The Club contends that this entire case can be boiled down to one question: did the parties intend for the Club to be contractually required to remove/remediate the firearm projectiles and fragments thereof (and related material) present on the property it leased from Vulcan as of the end of the last express lease term between the Club and Vulcan (i.e., November, 00)? The evidence at issue plainly shows that Vulcan (or its predecessor) knowingly chose to engage in conduct that could result in the burial of firearm projectiles. Thus, the evidence at issue (i.e., It seems Vulcan s objection is intended to raise the specious argument that the evidence at issue is not of consequence because it has to do with an awareness of a possibility (as opposed to the awareness of a fact). Here,

17 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 Sheedy s awareness of the possibility that the tailings were being placed on top of a surface where bullets (partial or whole) were present ) is, clearly of consequence to the determination of any fact in this action. The evidence has not only a tendency, but a strong tendency to make the existence of a[] fact that is of consequence [i.e., that Vulcan never had contractual intent that the Club was required to remove/remediate firearm projectiles at the leased property] more... probable than it would be without the evidence. See id. That is, Vulcan s choice to take an action which it knew could result in the burial of firearm projectiles is at odds with, and thus relevant to rebutting, Vulcan s current assertion that it had the contractual intent that the Club would remove/remediate the firearm projectiles (and related materials) at the leased property. Vulcan s relevance objection is nothing more than an unfounded attempt to challenge evidence that is clearly detrimental to its case (and thus relevant), meaning the objection should be overruled. OBJECTION NO. : Franklin Decl., Ex. P, Declaration of Thomas Sheedy, II At the time tailings were deposited at the property leased by the San Gabriel Valley Gun Club, I believe the Management Committee I reported to was aware of the possibility that the tailings were placed on top of a surface where bullets (partial or whole) were present. however, it is the awareness of a possibility that is important. Even assuming hypothetically that Sheedy had been wrong and Vulcan s placement of the Waste Pile did not result in projectiles being buried, Sheedy s testimony would still be relevant to proving that Vulcan did not intend projectiles would be removed; the ultimate outcome (i.e., whether burial occurred or not) does not alter Vulcan s intent. The question is one of intent, not result, and Sheedy s testimony is plainly relevant to establishing that Vulcan did not intend that the Club was contractually required to remediate Spent Ammunition at the Property.

18 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 Objections. Lack of Personal Knowledge. Fed R. Evid. 0. Mr. Sheedy does not testify as to any personal knowledge concerning whether the Management Committee was aware of the possibility that bullets were present where the tailings were deposited. It is improper for Mr. Sheedy to testify as to his belief. RESPONSE TO OBJECTION NO. : Fed. R. Evid. 0. Rule 0 states [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 0. A similar requirement is found in FRCP (c)() regarding certain affidavits or declarations ( [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge ). Vulcan s objection makes no sense. Vulcan s unsupported claim that [i]t is improper for Mr. Sheedy to testify as to his belief is incorrect. See, e.g., Folio Impressions, Inc. v. Byer California, F.d, - (nd Cir. ) (testimony expressly stated as belief, and not knowledge, based on general observation and knowledge, and not upon conjecture or hearsay[,] can meet Rule 0 s personal knowledge requirement). Vulcan cannot reasonably dispute that Sheedy himself was in periodic contact with the Management Committee, as Sheedy s Decl. (Exhibit P at to the Franklin Decl.) states that Sheedy had to go to the Management Committee regarding major decisions related to the mining operation at issue herein, and that he specifically obtained permission (and thus implicitly must have discussed) the placement of Waste Pile with the Management Committee. (Id. at -). Further, Sheedy s Deposition testimony regarding the particular statement at issue indicates that Sheedy and the person Sheedy referred to as the equivalent of the chairman [of the management commitee] Walt Lucariella[,] i.e., Lukkarila, had been to the area in question with Sheedy, and that as a result of Lukkarila

19 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 visiting that location, the management committee was aware the possibility that the tailings were being placed on top of a surface where bullets, partial or whole, were present. (See Declaration of Scott M. Franklin in Support of Defendant San Gabriel Valley Gun Club s Opposition to Plaintiff Vulcan s Motion for Partial Summary Judgment [Docket Document -, the Franklin Decl. ISO Opp. ] at Exhibit O, :- [at per the Court s pagination]). Accordingly, based on general knowledge and observation, Sheedy s statement meets Rule 0 s personal knowledge requirement. If Vulcan wants to challenge the weight of Sheedy s testimony, it is free to do so at trial. At this point, however, Vulcan s Rule 0 objection does not show a lack of personal knowledge that justifies excluding the evidence at issue, meaning the objection should be overruled. OBJECTION NO. : Franklin Decl., Ex. Q, Declaration of Claude Preston Cowan,. I am not aware of CalMat Co. management (Tom Sheedy or any above him in CalMat Co.) ever discussing with its tenant the possibility that placing tailings on the leased property could result problems [sic] in the future regarding lead bullets (or lead fragments) being buried, though I do recall Rick Phillips (manager of the San Gabriel Valley Gun Club) making a comment to that effect in the early 0s. Objections. Lack of Personal Knowledge. Fed R. Evid. 0. Mr. Cowan establishes no personal knowledge of all (or any) conversations between CalMat Co. management and the San Gabriel Valley Gun Club such that he can testify as to their contents. Hearsay. Fed. R. Evid. 0, 0. The contents of any conversation between CalMat Co. management and the San Gabriel Valley Gun Club, and any statements by Mr. Phillips to Mr. Cowan are inadmissible hearsay.

20 Case :0-cv-0-JLQ -OP Document Filed 0// Page 0 of Page ID #: 0 0 RESPONSE TO OBJECTION NO. : First, before responding to Vulcan s objections, the Club wants to point out that there are two distinct assertions in the particular evidence challenged by Vulcan: ) that Preston Cowan is not aware of CalMat Co. management (Tom Sheedy or any above him in CalMat Co.) ever discussing with its tenant the possibility that placing tailings on the leased property could result problems [sic] in the future regarding lead bullets (or lead fragments) being buried, and, ) that Preston Cowan does recall Rick Phillips (manager of the San Gabriel Valley Gun Club) making a comment to that effect[,] i.e., that placing tailings on the leased property could result in problems in the future regarding lead bullets or lead fragments being buried on the leased property in the early 0s. The Club will refer to these two issues as Issue and Issue, respectively. Fed. R. Evid. 0. Rule 0 states [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 0. A similar requirement is found in FRCP (c)() regarding certain affidavits or declarations ( [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge ). Vulcan s Rule 0 objection is intended to address only Issue. As above, Vulcan s Rule 0 objection does not make sense. This time, Vulcan states that Mr. Cowan establishes no personal knowledge of all (or any) conversations between CalMat Co. management and the San Gabriel Valley Gun Club such that he can testify as to their contents. Here, however, Cowan is not testifying the contents of conversations between CalMat Co. management and the San Gabriel Valley Gun Club[,] in fact, he is testifying that he has no personal knowledge of any communication between Calmat (i.e., Vulcan) management and the Club as to the potential effects burying lead bullets and fragments as a result of mining tailings being placed at the leased property. 0

21 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 If Vulcan wants to challenge the weight of Cowan s testimony, it is free to do so at trial. At this point, however, because Cowan s statement regarding his own lack of information on the topic at hand is most definitely within his personal knowledge (that is, Cowan is the only person who can testify as to what he is, and is not, aware of), Vulcan s Rule 0 objection should be overruled. Fed. R. Evid. 0, 0. Rules 0 and 0 state that [h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted and that [h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. Issue. As explained above, Cowan is not offering evidence of [t]he contents of any conversation between CalMat Co. management and the San Gabriel Valley Gun Club. Thus, there is no hearsay (or any statement) upon which a hearsay objection could be based. Accordingly, Vulcan s hearsay objection should be overruled as to Issue. Issue. A statement is not hearsay if it is not offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 0(c). The club does not currently offer the statement at issue to prove that placing tailings on the leased property can result in problems regarding lead bullets or lead fragments being buried on the leased property (i.e., what Vulcan apparently contends is the matter asserted ), it is being offered to show that the Club expressed a belief to Vulcan that placing tailings on the leased property could result in problems in the future regarding lead bullets or lead fragments being buried on the leased property. Fed. R. Evid. 0 advisory committee s note ( Note to Subdivision (c).... If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.); see United States v. Scheele, F.d,, 00 (th Cir. 000) (police officer s statement that he

22 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 heard a threat on a tape recording is not hearsay to the extent the statement is offered only to prove that the threat was made); United States v. Munoz, F.d, (st. Cir. ) ( It is quite true that an out-of-court statement is not hearsay if it is used only to show that the statement was made and that the listener heard the words uttered. ). Because the evidence at issue is a verbal act and is not offered to prove the truth of the matter asserted, Vulcan s objection cannot be sustained. OBJECTION NO. 0: Franklin Decl., Ex. Q, Declaration of Claude Preston Cowan, 0. At some point in the early 0s, I told Tom Sheedy that placing tailings on the property leased by San Gabriel Valley Gun Club was resulting in lead bullets or fragments being buried beneath tailings, but I do not remember what, if any, response, Mr. Sheedy gave. Hearsay. Fed. R. Evid. 0, 0. The contents of any conversation between Mr. Cowan and Mr. Sheedy are inadmissible hearsay. RESPONSE TO OBJECTION NO. 0: A statement is not hearsay if it is not offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 0(c). The club does not intend the statement at issue to be offered to prove that placing tailings on the property leased by San Gabriel Valley Gun Club was resulting in lead bullets or fragments being buried beneath tailings (i.e., what Vulcan apparently contends is the matter asserted ), it is being offered to show that the Preston Cowan told Tom Sheedy (whether correctly or not) that placing tailings on the property leased by San Gabriel Valley Gun Club was resulting in lead bullets or fragments being buried beneath tailings. Fed. R. Evid. 0 advisory committee s note ( Note to Subdivision (c).... If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the

23 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 statement is not hearsay.); see Scheele, F.d at, 00 (police officer s statement that he heard a threat on a tape recording is not hearsay to the extent the statement is offered only to prove that the threat was made); Munoz, F.d at ( It is quite true that an out-of-court statement is not hearsay if it is used only to show that the statement was made and that the listener heard the words uttered. ). Because the evidence at issue is a verbal act and is not offered to prove the truth of the matter asserted, Vulcan s objection cannot be sustained. Additionally, had the Club offered this evidence as proof of the matter asserted (i.e., that placing tailings on the property leased by San Gabriel Valley Gun Club was resulting in lead bullets or fragments being buried beneath tailings), that evidence would still not be hearsay, as it would be a non-hearsay admission of a party-opponent. Fed. R. Evid. 0(d)()(D). ( A statement is not hearsay if... a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. ). Because Cowan and Sheedy were both employees of Vulcan or its predecessor in the relevant time period (i.e., in the early 0s ), and because the conversation at issue concerns movement of mining tailings, something that is plainly a matter within the scope of the agency or employment[,] the contents of [this] conversation between Mr. Cowan and Mr. Sheedy is non-hearsay, meaning Vulcan s hearsay objection is without merit and should therefore be overruled. OBJECTION NO. : Franklin Decl.,, and Exhibit R. Attached as Exhibit R to this Declaration is a true and correct copy of a document produced in this action by Vulcan that purports to be a Daily Extra Work Report for work performed on March,. Objections. Lack of Personal Knowledge. Fed R. Evid. 0. Lack of Authentication. Fed. R. Evid. 0. Mr. Franklin provides no testimony

24 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 that he has personal knowledge of the document such that he is able to authenticate it as required by the Federal Rules of Evidence. See, e.g., Estremera v. United States, F.d 0, - (th Cir. 00) (declaration of attorney insufficient to authenticate documents where knowledge was based only upon interviews with witnesses and review of documents); see also, Request to Strike, below. Hearsay. Fed. R. Evid. 0, 0. The contents of the document are out of court statements improperly being offered for the truth of what they assert. RESPONSE TO OBJECTION NO. : Fed. R. Evid. 0. Rule 0 states [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 0. A similar requirement is found in FRCP (c)() regarding certain affidavits or declarations ( [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge ). Franklin, as an attorney for the Club in this matter (and has been since before Vulcan filed suit on September, 00; see Supp. Franklin Decl. at ), has personal knowledge of what documents have been produced by Vulcan to the Club in this action, including, as stated in of the Franklin Decl., the document attached thereto as Exhibit R. Thus, the statement of Franklin Decl. at is within Franklin s knowledge, proving Vulcan s Rule 0 objection is without merit. Fed. R. Evid. 0. Rule 0(a) states: [t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Documents produced in discovery are considered authenticated for use by a party-opponent, presuming there is no dispute such production actually occurred. Orr, F.d at n.0 ( documents produced by a party in discovery were

25 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 0 0 deemed authentic when offered by the party-opponent ) (citing, among others, Maljack, F.d at n.). Vulcan apparently chooses to ignore on point Ninth Circuit authority like Orr and Maljack and instead (mis)cites a Seventh Circuit case (Estremera, F.d at -) that is completely off point. The question at issue in Estremera was whether an affidavit based on the attorney s review of the relevant documents was based on sufficient personal knowledge to satisfy FRCP Rule (e), where the attorney did not introduce into the record the documents he relied on in his affidavit. Id. Additionally, even though Vulcan plainly indicates Estremera concerns authentication of documents, Estremera never mentions either Rule 0 or authentication. Thus, unless Vulcan is attempting to raise the argument that this document (a document Bates stamped with a Vulcan identifier, nonetheless) was not produced to the Club by Vulcan in this action (which the Club obviously denies), Vulcan s Rule 0 objection must fail and should therefore be overruled. Fed. R. Evid. 0, 0. Rules 0 and 0 state that [h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted and that [h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. First, the document at issue (including its contents) is not hearsay, as the document a non-hearsay admission of a party-opponent. Fed. R. Evid. 0(d)()(D). ( A statement is not hearsay if... a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. ). The document is clearly a internal accounting document from Azusa Rock (i.e., Vulcan), meaning any statements therein are created by an employee or agent of Vulcan concerning a matter within

26 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 the scope of the agency or employment, made during the existence of the relationship. Additionally, at least two hearsay inadmissability exceptions apply: Rule 0(), the business records exception ; and Rule 0, the residual exception, which provides an exception for statement[s] not specifically covered by Rule 0 or 0 but having equivalent circumstantial guarantees of trustworthiness... Aside from the information noted above, it is relevant that document was produced in this action by Vulcan, is over nineteen years old, and, the substance at issue (that Cowan was a heavy equipment operator around the time of the creation of the Waste Pile) is confirmed by Cowan s own declaration (Franklin Decl. at Ex. Q,,,, ). Based on that evidence, there is a equivalent circumstantial guarantee[] of trustworthiness making the residual exception applicable. Because Vulcan s hearsay objection is unfounded, it should be overruled. OBJECTION NO. : Franklin Decl.,, and Exhibit S. Attached as Exhibit S to this Declaration is a true and correct copy of a letter dated October, sent by Harry Sanford and Herb Bock to J. Weber produced by Vulcan. Objections. Lack of Personal Knowledge. Fed R. Evid. 0. Lack of Authentication. Fed. R. Evid. 0. Mr. Franklin provides no testimony that he has personal knowledge of the document such that he is able to authenticate it as required by the Federal Rules of Evidence. See, e.g., Estremera v. United States, F.d 0, - (th Cir. 00) (declaration of attorney insufficient to authenticate documents where knowledge was based only upon interviews with witnesses and review of documents); see also, Request to Strike, below. Hearsay. Fed. R. Evid. 0, 0. The contents of the document are out of court statements improperly being offered for the truth of what they assert.