Reyes v. San Francisco Unified School District

Filing 157

ORDER REGARDING RULING ON OBJECTIONS TO EVIDENCE. Signed by Judge Yvonne Gonzalez Rogers on 9/20/12. (fs, COURT STAFF) (Filed on 9/20/2012)

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Kathleen Maylin (State Bar No. 155371)
Travis Raymond (State Bar No. 268543)
JACKSON LEWIS LLP
199 Fremont Street, 10th Floor
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
SAN FRANCISCO UNIFIED
SCHOOL DISTRICT

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARGARET REYES,
Plaintiff,

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v.
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,

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Case No. C11-04628 YGR
OBJECTIONS TO PLAINTIFF’S
EVIDENCE IN SUPPORT OF
OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, PARTIAL
SUMMARY JUDGMENT
Date:
Time:
Judge:
Trial:

Defendant.

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August 28, 2012
2:00 pm
Hon. Yvonne G. Rogers
October 22, 2012

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Defendant San Francisco Unified School District hereby sets forth its objections to

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Plaintiff Margaret Reyes’ evidence in support of her opposition to defendant’s Motion for

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Summary Judgment or, in the Alternative, Partial Summary Judgment.

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I. OBJECTIONS TO PLAINTIFF MARGARET REYES’ DECLARATION

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EVIDENTIARY OBJECTION NO. 1

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Paragraph 4, lines 10-12

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“I saw letters and memoranda authored by Richard Zapien in my personnel file. These

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letters and memoranda were neither official reprimands nor designated to go in my personnel

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file.”

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OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR

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Objections:
Lacks foundation. Fed.R.Evid. 901. Speculation/Lack of Personal Knowledge.

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Fed.R.Evid. 602. Improper opinion. Fed.R.Evid. 701.

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Plaintiff fails to demonstrate that she has personal knowledge that Zapien actually authored the

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documents or that she is aware of facts supporting her conclusions about the intent of the

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documents. A declaration made in opposition to a motion for summary judgment must be based

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on the declarant’s personal knowledge. Love v. Commerce Bank, N.A., 37 F.3d 1295, 1296 (8th

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Cir. 1994). Plaintiff opines that the letters were not official and not designated to go into her

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employee file but introduces no facts explaining how this opinion is rationally based on Plaintiff’s

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perceptions. Therefore, this statement is not admissible. Gagne v. Northwestern Nat‟l Ins. Co.,

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881 F.2d 309, 315-16 (6th Cir. 1989) (holding that opinions in affidavits that are not based on

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personal observation do not contain admissible evidence for summary judgment purposes)

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overruled on other grounds by Wright v. Murray Guard, Inc., 455 F.3d 702 (6th Cir. 2006);

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O‟
Shea v. Detroit News, 887 F.2d 683, 687-88 (6th Cir. 1989) (holding that a non-moving party’s

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opinions are not sufficient evidence to oppose a motion for summary judgment). Plaintiff

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impermissibly summarizes the contents of unidentified “letters and memoranda” that have not

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been admitted into evidence or properly authenticated. Plaintiff’s recollection of the contents of

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the documents does not satisfy the best evidence rule. The documents themselves should be

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presented as evidence.

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Sustained: as to the last phrase, beginning with "nor designated"

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EVIDENTIARY OBJECTION NO. 2

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Paragraph 5, lines 13-16

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Best Evidence. Fed.R.Evid. 1001/1002.

Overruled: __________

“I also saw an email string in my personnel file that included an email about me from a

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School District attorney, Mike Quinn, wherein he says I was making life hell at another school. A

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copy is attached hereto as Exhibit 2. This demonstrates that Mr. Quinn and Mr. Zapien were

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talking about me.”

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Objections:

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OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR

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Lacks foundation. Fed.R.Evid. 901. Speculation/Lack of Personal Knowledge.

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Fed.R.Evid. 602.

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speculation and not based on Plaintiff’s personal knowledge, and in fact, Zapien is not mentioned

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or named in the discussed “email chain.” Love, 37 F.3d at 1296 (a declaration made in opposition

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to a motion for summary judgment must be based on personal knowledge); Gagne, 881 F.2d at

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315-16 (conclusions that are not based on personal observation are not admissible evidence for

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summary judgment purposes).

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Sustained: as to the last sentence

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EVIDENTIARY OBJECTION NO. 3

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Plaintiff’s conclusion that Quinn and Zapien were talking about her is

Overruled: __________

Paragraph 6, lines 17-18
“The first time I heard that was when I saw the PAR referral, after this litigation started.”
Objections:
Improper authentication and identification. Fed.R.Evid. 901. Best Evidence. Fed.R.Evid.

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1001/1002. Plaintiff impermissibly summarizes the contents of the referenced document.

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Sustained: __________

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EVIDENTIARY OBJECTION NO. 4

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Paragraph 7, lines 19-21

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Overruled: XX

“Ms. Palomares told me that the „
satisfactory‟performance evaluation was a

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collaborative effort between Mr. Zapien and her.”

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Objections:

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Hearsay.

Fed.R.Evid. 802.

Plaintiff’s recitation of the alleged statement by Ms.

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Palomares is inadmissible hearsay. Hartsel v. Keys, 87 F.3d 795, 803 (6th Cir. 1996) (affirming

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the district court’s grant of summary judgment to the defendants because the plaintiff filed a

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declaration consisting of inadmissible hearsay with her opposition).

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Sustained: to the extent the statement is offered for its truth

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EVIDENTIARY OBJECTION NO. 5

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Paragraph 8, lines 22-24

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Overruled: __________

OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR

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“Mr. Zapien refused to provide my class with water while personally delivering water to

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neighboring classrooms.”

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Objections:

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Speculation/Lack of Personal Knowledge. Fed.R.Evid. 602. Improper opinion.

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Fed.R.Evid. 701. Plaintiff has not demonstrated that she has personal knowledge of Mr. Zapien

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delivering water to other classrooms or the reason that her classroom did not receive water. Love,

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37 F.3d at 1296 (declarations in opposition to a motion for summary judgment must be based on

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the declarant’s personal knowledge). She instead speculates that Mr. Zapien “refused” to provide

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her class with water but introduces no facts explaining how this opinion is rationally based on

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Plaintiff’s perceptions. Gagne, 881 F.2d at 315-16 (opinions that are not based on personal

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observation are not admissible evidence for summary judgment purposes); O‟
Shea, 887 F.2d at

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687-88 (a non-moving party’s opinions are not sufficient evidence to oppose a motion for

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summary judgment)

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Sustained: as to the last phrase beginning with "while"

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EVIDENTIARY OBJECTION NO. 6

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Paragraph 10, lines 1-2

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Overruled: __________

“Mr. Zapien refused to arrange for the roof to be fixed.”
Objections:
Speculation/Lack of Personal Knowledge.

Fed.R.Evid. 602. Improper opinion.

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Fed.R.Evid. 701. Plaintiff fails to demonstrate personal knowledge of the reasons for the roof

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not being fixed. Love, 37 F.3d at 1296 (declarations in opposition to a motion for summary

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judgment must be based on the declarant’s personal knowledge). Instead she speculates that Mr.

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Zapien “refused” to arrange for the roof to be fixed but introduces no facts explaining how this

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opinion is rationally based on Plaintiff’s perceptions. Gagne, 881 F.2d at 315-16 (opinions that

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are not based on personal observation are not admissible evidence for summary judgment

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purposes); O‟
Shea, 887 F.2d at 687-88 (a non-moving party’s opinions are not sufficient

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evidence to oppose a motion for summary judgment)

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OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR

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Sustained: XX

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EVIDENTIARY OBJECTION NO. 7

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Paragraph 11, lines 3-4

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Overruled: __________

“Ms. Levin never observed me teaching or managing my class. When she was there she

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was managing the class and providing the lesson.”

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Objections:

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Lacks foundation. Fed.R.Evid. 104.

Speculation/Lack of Personal Knowledge.

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Fed.R.Evid. 602. Improper opinion. Fed.R.Evid. 701. Plaintiff has not demonstrated that she has

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personal knowledge of everything Ms. Levin had an opportunity to observe or do in Plaintiff’s

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classroom. Love, 37 F.3d at 1296 (declarations in opposition to a motion for summary judgment

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must be based on the declarant’s personal knowledge); O‟
Shea, 887 F.2d at 687-88 (a non-

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moving party’s opinions are not sufficient evidence to oppose a motion for summary judgment).

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Sustained: __________

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EVIDENTIARY OBJECTION NO. 8

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Paragraph 12, lines 10-12

Overruled: XX

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“His harassment of me was continuous, humiliating, and distressing to the point that it

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interfered with my teaching and lead to a breakdown when I could not stop crying and had to be

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driven to the hospital.”

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Objections:

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Lacks foundation. Fed.R.Evid. 104.

Improper opinion testimony.

Fed.R.Evid. 701.

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Plaintiff fails to establish any foundation that she is competent to opine that Zapiens’ alleged

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actions caused her to suffer a “breakdown” and required her to be driven to the hospital. O‟
Shea,

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887 F.2d at 687-88 (a non-moving party’s opinions are not sufficient evidence to oppose a motion

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for summary judgment).

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Sustained: __________

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EVIDENTIARY OBJECTION NO. 9

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Paragraph 13, lines 13-16

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Overruled: XX

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OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR

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“I taught Second Grade, successfully, both before and after Hillcrest. I do not lack those

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skills. I successfully taught Second Grade at Hillcrest for three years. For the first two years my

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students scored well above school average in the California Achievement Tests.”

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Objections:

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Lacks foundation. Fed.R.Evid. 104.

Improper opinion. Fed.R.Evid. 701.

Improper

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authentication and identification. Fed.R.Evid. 901. Best Evidence. Fed.R.Evid. 1001/1002.

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Plaintiff repeatedly gives impermissible lay person opinions on her own success at teaching

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without offering any facts to support her conclusions. O‟
Shea, 887 F.2d at 687-88 (a non-moving

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party’s opinions are not sufficient evidence to oppose a motion for summary judgment). She fails

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to establish any foundation for her assertion that her students scored well above school average in

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the California Achievement Tests.

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Sustained: __________

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EVIDENTIARY OBJECTION NO. 10

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Paragraph 13, lines 16-17

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Overruled: XX

“The third year I was directed by Mr. Zapien and Ms. Levin to abandon the District

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sanctioned reading curriculum.”

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Objections:

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Objection.

Speculation/Lack of Personal Knowledge.

Fed.R.Evid. 602. Improper

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opinion.

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communicated to her. Plaintiff’s statement is conclusory and without foundation. O‟
Shea, 887

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F.2d at 687-88 (a non-moving party’s conclusions are not sufficient evidence to oppose a motion

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for summary judgment). Further, Plaintiff does not establish she is competent to opine that, if she

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had complied with whatever Zapien and Levin communicated to her, she would have abandoned

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the District sanctioned reading curriculum.

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Sustained: __________

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EVIDENTIARY OBJECTION NO. 11

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Paragraph 13, lines 17-18

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Fed.R.Evid. 701.

Plaintiff does not state what Zapien and Levin allegedly

Overruled: XX

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OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR

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“My students performed significantly lower on the California Achievement Tests in the

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third year.”

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Objections:

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Lacks foundation. Fed.R.Evid. 104.

Improper opinion. Fed.R.Evid. 701.

Improper

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authentication and identification. Fed.R.Evid. 901. Best Evidence. Fed.R.Evid. 1001/1002.

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Plaintiff fails to establish any foundation for her assertion that her students performed

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significantly lower on the California Achievement Tests in the third year.

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Sustained: __________

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EVIDENTIARY OBJECTION NO. 12

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Overruled: XX

Paragraph 13, lines 18-20

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“I received „highly satis
factory‟ c
lassroom evaluations in the 2009-2010 school year and

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a „satis
factory‟ ov
erall evaluation.”

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Objections:

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Lacks foundation. Fed.R.Evid. 104.

Speculation/Lack of Personal Knowledge.

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Fed.R.Evid. 602.

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Fed.R.Evid. 1001/1002. To the extent the Plaintiff is reciting her recollection of the contents of

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documents, this does not satisfy the best evidence rule. The documents themselves should be

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presented as evidence.

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Sustained: __________

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//

Improper authentication and identification. Fed.R.Evid. 901. Best Evidence.

Overruled: XX

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II.

OBJECTIONS TO THE DECLARATION OF RICHARD M. ROGERS

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EVIDENTIARY OBJECTION NO. 1

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Paragraph 2, lines 3-5

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“When the seniority date and sick leave provisions of the Settlement Agreement were not

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performed, I starting [sic] making demands through Julius Turman, the Defendant‟ attorney in
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the prior litigation.”

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OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR

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Objections:

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Improper opinion. Fed.R.Evid. 701. Plaintiff’s counsel gives the opinion that whatever

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he did constituted “making demands,” but he does not state what he did. Gagne, 881 F.2d at 315-

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judgment purposes).

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Sustained: __________

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Overruled: XX

EVIDENTIARY OBJECTION NO. 2
Paragraph 2, lines 8-9
“Since defense counsel has represented to the Court that Mr. Turman (“Julius”) was no
ney, there was no reason to communicate with him other than in
longer Defendant‟s attor
response to his inquiry, provoked by me.”
Objections:
Improper

opinion.

Fed.R.Evid.

701.

Lacks

foundation.

Fed.R.Evid.

104.

Speculation/Lack of Personal Knowledge. Fed.R.Evid. 602. Plaintiff’s counsel fails to establish
he is competent to opine whether there was a reason for him to communicate with Mr. Turman.
Plaintiff’s counsel speculates that he provoked Mr. Turman’s alleged communication with
Plaintiff’s counsel. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2nd Cir. 1988) (an
attorney’s declaration may only be admitted into evidence if it contains facts that are within the
attorney’s personal knowledge).
Sustained: __________

Overruled: XX

EVIDENTIARY OBJECTION NO. 3
Paragraph 3, lines 13-16
“The administrative complaint, referring to the failure to grant sick leave, was filed on
June 1, 2011 . . . [t]he sick leave was not granted until February, 2012. In my experience that is
too much notice to credit an explanation of negligence.”
Lacks foundation.

Fed.R.Evid. 104.
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Speculation/Lack of Personal Knowledge.

OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR

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Fed.R.Evid. 602. Improper opinion. Fed.R.Evid. 701. Plaintiff’s counsel’s speculation on the

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reasons for the timing of the grant of sick leave is impermissible speculation and improper lay

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opinion. Plaintiff’s counsel does not establish he is competent to opine on whether there was too

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much notice to credit an explanation of negligence. Gagne, 881 F.2d at 315-16 (conclusions that

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are not based on personal observation are not admissible evidence for summary judgment

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purposes).

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Sustained: XX

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EVIDENTIARY OBJECTION NO. 4

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Paragraph 4, lines 17-21

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Overruled: __________

“Attached hereto as Exhibits 2 and 3 are copies of Defendant‟s re
sponses to discovery,

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verified by David George. The Response to No. 1 is mistaken; the settlement amount was

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published. The Response to Interrogatory No. 5 is mistaken; Defendant now asserts that only two

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employees accessed the personnel file. Mr. George apparently signs documents in place before

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him without making any inquiry whatsoever.”

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Objection. Speculation/Lack of Personal Knowledge. Fed.R.Evid. 602. Improper

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opinion. Fed.R.Evid. 701. Plaintiff’s concludes that Defendant’s discovery responses are

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“mistaken,” but introduces no facts showing that this opinion is rationally based on Plaintiff’s

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perceptions and/or show that Plaintiff’s opinion is based on personal knowledge. Gagne, 881

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F.2d at 315-16 (opinions that are not based on personal observation are not admissible evidence

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for summary judgment purposes). Additionally, Plaintiff’s counsel’s speculation regarding Mr.

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George’s actions is impermissible speculation and opinion. Sellers, 842 F.2d 639, 643 (an

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attorney’s declaration may only be admitted into evidence if it contains facts that are within the

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attorney’s personal knowledge).

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Sustained: XX

Overruled: __________

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III.

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF

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MOTION FOR SUMMARY JUDGMENT

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OBJECTIONS TO PLAINTIFF’S RESPONSE TO DEFENDANT’S AMENDED

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OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR

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The Court’s “Standing Order in Civil Case” memorandum expressly states that “[t]he

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Supporting and Responsive Separate Statement each must be signed by counsel . . . who has

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reviewed each document and can attest as follows:

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‘I attest that the evidence cited herein fairly and accurately supports [or disputes] the
facts as asserted.’” (emphasis and bold in original)

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Plaintiff’s response to Defendant’s separate statement does not include this required

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attestation. Accordingly, Defendant objects to Plaintiff’s entire separate statement response as

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Plaintiff’s counsel has not attested to the fairness and accuracy of the facts asserted in Plaintiff’s

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response.

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Sustained: __________

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Date: August 14, 2012

Overruled: XX
Respectfully submitted,

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JACKSON LEWIS LLP

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By: /s/ Kathleen Maylin
Kathleen Maylin
Travis Raymond
Attorneys for Defendant
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT

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September 20, 2012

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OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; AND RULINGS
Case No. C11-04628 YGR