Hunzeker v. Butler et al

Filing 43

MEMORANDUM DECISION AND ORDER granting in part and denying in part 25 MOTION for Summary Judgment; granting in part and denying in part 34 MOTION to Strike Affidavit of and Adam Whitmore; denying 34 MOTION to Strike Affidavit of Rosa Susana Hunzeker. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DENNIS H. HUNZEKER,
Case No. 4:12-cv-00421-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
GREG BUTLER, in his official and
individual capacities; ANITA
PANKO, in her official and individual
capacities; and the CITY OF
MONTPELIER, an Idaho political
subdivision,
Defendants.

INTRODUCTION
Before the Court is a motion for summary judgment filed by Defendants
Greg Butler, Anita Panko, and the City of Montpelier, an Idaho political
subdivision. See Dkt. 25. Defendants have also moved to strike the affidavits of
Rosa Susana Hunzeker and Adam Whitmore. See Dkt. 34. For the reasons
explained below, the Court will: (1) grant in part and deny in part the Defendants’
motion for summary judgment; (2) grant in part and deny in part Defendants’
MEMORANDUM DECISION AND ORDER - 1

motion to strike the affidavit of Adam Whitmore; and (3) deny Defendants’ motion
to strike the affidavit of Rosa Susana Hunzeker.
BACKGROUND
The following facts are undisputed or, when disputed, taken in the light most
favorable to Dennis Hunzeker, the plaintiff and non-moving party. See Matsushita
Elec. Indus. Co. v, Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986) (stating the district court’s obligation to construe the record in
the light most favorable to the non-moving party).
In June 2010, Rosa Hunzeker called the Montpelier Police Department after
she and her husband, Dennis Hunzeker, got into an argument. Rosa Hunzeker Aff.,
¶ 8 (Dkt. 31). During the argument, Mrs. Hunzeker kicked Mr. Hunzeker in the
testicles and tried to hit him. Mr. Hunzeker then restrained Mrs. Hunzeker. Id.
When the 911 operator answered, Mrs. Hunzeker hung up because she only speaks
Spanish, and does not speak English. Rosa Hunzeker Aff., ¶ 8 (Dkt. 31). A Spanishspeaking operator called back; however, Mrs. Hunzeker declined to speak with
him. Id. This particular incident occurred in the presence of Mrs. Hunzeker’s son,
Aaron Rivera. Panko Aff., ¶ 7 (Dkt. 19-2).
In August 2010, Greg Butler, Chief of Police for the Montpelier Police
Department, asked Anita Panko, the Victims Assistant Unit Coordinator for the
MEMORANDUM DECISION AND ORDER - 2

Montpelier Police Department, to contact Mrs. Hunzeker to inquire about the
circumstances surrounding her June 2010 altercation with her husband. Panko Aff.,
¶ 7 (Dkt. 19-2).
Ms. Panko, along with an interpreter, met with Mrs. Hunzeker on August 13,
2010. Id.; Hall Aff., Ex. B, p. 4 (Dkt. 19-3). At this meeting, Mrs. Hunzeker stated
that she was never afraid that Mr. Hunzeker would hurt her physically; rather she
was afraid he would divorce her and take custody of their daughter. Rosa Hunzeker
Aff., ¶¶ 12-15 (Dkt. 31). Mrs. Hunzeker further stated the only reason she met with
Ms. Panko was so she could contact a divorce attorney. Id. at ¶ 21.
On August 20, 2010, Mrs. Hunzeker contacted Cynthia Johnson, the
interpreter, to get in touch with Ms. Panko to obtain information on a divorce
attorney. Rosa Hunzeker Aff., ¶¶ 22-23 (Dkt. 31). Ms. Johnson told Mrs. Hunzeker
to go to the hospital where Chief Butler would escort her to the police station. Id.
at ¶ 24. While at the police station, Ms. Panko stated that a protection order was
necessary to protect Mrs. Hunzeker from her husband. Rosa Hunzeker Aff., ¶¶ 26
(Dkt. 31). However, the protection order was not granted. The Judge determined
that because the argument took place in June and Mrs. Hunzeker continued to live
in the home, she was not in any immediate danger. Hall Aff., Ex. C, p. 7 (Dkt. 193).
MEMORANDUM DECISION AND ORDER - 3

While Mrs. Hunzeker and Ms. Panko were at the courthouse, Chief Butler
and Officer Adam Whitmore served Mr. Hunzeker with a citation for domestic
violence in the presence of a child. Hall Aff., Ex. C, p. 7 (Dkt. 19-3); Whitmore
Aff., ¶ 7 (Dkt. 29). Mr. Hunzeker was arrested, and was not released from jail until
August 23, 2010. Dennis Hunzeker Aff., ¶ 12 (Dkt. 30).
Shortly after Mr. Hunzeker’s release from jail, Ms. Panko informed Mrs.
Hunzeker that she needed to distance herself from her husband. Rosa Hunzeker
Aff., ¶ 32 (Dkt. 31). Further, Ms. Panko warned Mrs. Hunzeker that if she and Mr.
Hunzeker were in a certain distance of one another, the police would arrest Mr.
Hunzeker. Id. On the night of Mr. Hunzeker’s release, Ms. Panko, along with three
police officers, took Mrs. Hunzeker and her belongs and moved her into an
apartment in Montpelier. Id. at ¶ 33; Dennis Hunzeker Aff., ¶ 15 (Dkt. 30).
Mrs. Hunzeker continued to live apart from her husband for approximately
six months, until March 2011. Rosa Hunzeker Aff., ¶ 35 (Dkt. 31). During this
time, Mr. and Mrs. Hunzeker spoke in private, and visited each other at night to
avoid the consequences Ms. Panko threatened. Id.; Dennis Hunzeker Aff., ¶ 17
(Dkt. 30). During her separation from her husband, Mrs. Hunzeker said she felt
suffocated by Ms. Panko and Ms. Johnson. Id. at ¶ 36. Mrs. Hunzeker moved back
into her home on or about March 25, 2011. Dennis Hunzeker Aff., ¶ 18 (Dkt. 30).
MEMORANDUM DECISION AND ORDER - 4

MOTION FOR SUMMARY JUDGMENT
I.

STANDARD OF REVIEW
Summary judgment is appropriate where a party can show that, as to any

claim or defense, “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of
the principal purposes of the summary judgment “is to isolate and dispose of
factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). It is “not a disfavored procedural shortcut,” but is instead the “principal
tool [ ] by which factually insufficient claims or defenses [can] be isolated and
prevented from going to trial with the attendant unwarranted consumption of
public and private resources.” Id. at 327. “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving
party, and the Court must not make credibility findings. Id. at 255. Direct
testimony of the non-movant must be believed, however implausible. Leslie v.
Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is
MEMORANDUM DECISION AND ORDER - 5

not required to adopt unreasonable inferences from circumstantial evidence.
McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the
absence of a genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d
1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need
not introduce any affirmative evidence (such as affidavits or deposition excerpts)
but may simply point out the absence of evidence to support the nonmoving party’s
case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence
sufficient to support a jury verdict in his favor. Deveraux, 263 F.3d at 1076. The
non-moving party must go beyond the pleadings and show “by [ ] affidavits, or by
the depositions, answers to interrogatories, or admissions on file” that a genuine
dispute of material fact exists. Celotex, 477 U.S. at 324.
However, the Court is “not required to comb through the record to find some
reason to deny a motion for summary judgment.” Carmen v. San Francisco
Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation omitted).
Instead, the “party opposing summary judgment must direct [the Court’s] attention
to specific triable facts.” Southern California Gas Co. v. City of Santa Ana, 336
F.3d 885, 889 (9th Cir. 2003).
MEMORANDUM DECISION AND ORDER - 6

II.

ANALYSIS
Hunzeker asserts five causes of action in this case: (1) interference with

marital privacy; (2) wrongful arrest under 42 U.S.C. § 1983; (3) malicious
prosecution under 42 U.S.C. § 1983; (4) failure to train and supervise employees,
triggering 42 U.S.C. § 1983 liability; and (5) proximate cause of damages to his
ranching operations. The Court will discuss each in turn.
A.

Interference With Marital Privacy

Hunzeker alleges that Defendants, through their actions, interfered with his
marital “zone of privacy” and affected his ability to make decisions regarding his
family unit. The Supreme Court addressed the ‘zone of marital privacy’ in
Griswold v. Connecticut. 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
There, the Court determined that a law forbidding the use of contraceptives
violates the privacy surrounding the marital relationship, stating “‘a governmental
purpose to control or prevent activities constitutionally subject to state regulation
may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms.’” Griswold, 381 U.S. at 485 (quoting
NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325).
However, the Court is unaware of any precedent holding, or even intimating,
that the marital zone of privacy be free from a law enforcement investigation of a
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criminal act, as Hunzeker suggests. Therefore, summary judgment as to this claim
will be granted.
B.

Wrongful Arrest

Hunzeker alleges he was wrongfully arrested in violation of 42 U.S.C. §
1983. To establish a prima facie case under § 1983, plaintiffs must prove two
elements: (1) that the conduct occurred under color of law; and (2) that the conduct
deprived them of a right, privilege or immunity under the United States
Constitution or federal law. Orozco v. County of Yolo, 814 F.Supp. 885, 890 (E.D.
Cal. 1993). It is undisputed that the Defendants acted under color of state law. To
prove the second element, Hunzeker must show that the Defendants’ conduct
violated his Fourth Amendment right to be free from unreasonable searches and
seizures.
Arrests made without a warrant are unreasonable, and if conducted without
probable cause, violate the Fourth Amendment. Law v. City of Post Falls, 772
F.Supp.2d 1283, 1290-91 (D. Idaho 2011) (citing Beauregard v. Wingard, 362
F.2d 901, 903 (9th Cir. 1966)). However, probable cause is a defense to claims of
wrongful arrest. Id. at 1291. “Defendants are entitled to qualified immunity for the
arrest if a reasonable officer could have believed probable cause existed to make
the arrest.” Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993).
MEMORANDUM DECISION AND ORDER - 8

In a § 1983 action, the factual matters underlying the judgment of
reasonableness generally mean that probable cause is a question for the jury.
McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984). However, if no
reasonable jury could determine probable cause to arrest existed, a directed verdict
is proper. Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990) (citing Kennedy v.
Los Angeles Police Dept., 887 F.2d 920, 923 (9th Cir. 1989)).
In this case, there is a genuine issue of fact as to the behavior of Hunzeker at
the time of his arrest. Whitmore Aff., at ¶ 10, 13 (Hunzeker did not exhibit any
signs of physical aggression or attempt to resist arrest); Butler Dep., 91:19-95:7
(Hunzeker became very angry and aggressive). Because there is a factual dispute
as to the behavior of Hunzeker during this time, the Court is unable to determine
the reasonableness of the arrest. Whether Chief Butler had probable cause to arrest
Hunzeker is a determination for the jury. Therefore, summary judgment as to this
claim will be denied.
C.

Malicious Prosecution

Hunzeker alleges malicious prosecution under 42 U.S.C. § 1983 claiming,
specifically, that there was a lack of prosecutorial independence. To prevail on a §
1983 claim of malicious prosecution, Hunzeker “must show that the defendants
prosecuted [him] with malice and without probable cause, and that they did so for
MEMORANDUM DECISION AND ORDER - 9

the purpose of denying [him] equal protection or another specific constitutional
right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). The
Ninth Circuit has adopted a rebuttable-presumption-based approach when
analyzing a § 1983 claim of malicious prosecution. Beck v. City of Upland, 527
F.3d 853, 862 (9th Cir. 2008). It is presumed that a prosecutor exercises
independent judgment in deciding to file criminal charges, thereby breaking the
“chain of causation between an arrest and prosecution” and immunizing the
investigating officers from liability for injuries suffered after the charging decision.
Id. (quoting Smiddy v. Varney, 665 F.2d 261, 266–67 (9th Cir. 1981)). This
presumption may be rebutted if the plaintiff shows that the independence of the
prosecutor’s judgment has been compromised. Id. Circumstances in which the
presumption of independent judgment will be considered rebutted include
situations in which the prosecutor “relied on the police investigation and arrest
report when he filed the complaint, instead of making an independent judgment on
the existence of probable cause for arrest.” Smiddy I, 665 F.2d at 267.
However, a plaintiff's account of the incident in question, by itself, does not
overcome the presumption of independent judgment. Newman v. County of
Orange, 457 F.3d 991, 994–95 (9th Cir.2006).Therefore, to survive summary
judgment, a plaintiff must present information that provides ample evidence from
MEMORANDUM DECISION AND ORDER - 10

which a reasonable jury could conclude that the arresting officers, through false
statements and material omissions in their reports, prevented the prosecutor from
exercising independent judgment. Barlow v. Ground, 943 F.2d 1132, 1137 (9th
Cir. 1991). “Such evidence must be substantial.” Harper v. City of L.A., 533 F.3d
1010, 1027 (9th Cir. 2008). Once the plaintiff has introduced evidence to rebut the
presumption, the burden remains on the defendant to prove that the prosecutor’s
judgment was independent. Beck, 527 F.3d at 863.
The charges brought against Hunzeker resulted from a charging decision
made by Mr. McKenzie, Montpelier City Prosecutor. McKenzie Dep., 41:24-42:1-7
(Dkt. 25-5). Pursuant to Smiddy, this creates a rebuttable presumption that Mr.
McKenzie made the charging decision independently. Hunzeker, however, relies
solely on his account of what happened to rebut the reports made by Ms. Panko.
This, without more, is not enough to overcome the presumption of prosecutorial
independence. Newman, 457 F.3d at 994–95. Because Hunzeker has presented no
additional information to rebut the presumption of prosecutorial independence,
Defendants are entitled to qualified immunity. Therefore, summary judgment as to
this claim must be granted.
D.

Failure To Train and Supervise

MEMORANDUM DECISION AND ORDER - 11

Hunzeker alleges failure to train and supervise under 42 U.S.C. § 1983
claiming, additionally, that Chief Butler and Ms. Panko had final policy making
authority to subject Montpelier to § 1983 liability. Generally, a municipality will
only be subject to § 1983 liability for failing to train its employees where that
failure evidences a “deliberate indifference” to the rights of the inhabitants, and
such shortcoming can be properly thought of as a city “policy or custom.” City of
Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d. 412
(1989). “‘[D]eliberate indifference’” is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.”
Connick v. Thompson, 131 S.Ct. 1350, 1360, 179 L. Ed. 2d 417 (2011) (quoting
Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown., 520 U.S. 397, 409, 117 S.Ct.
1382, 137 L.Ed.2d 626 (1997)). A showing of simple or even heightened
negligence will not suffice. Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown.,
520 U.S. at 407. A pattern of similar constitutional violations by untrained
employees is “ordinarily necessary” to demonstrate deliberate indifference for
purposes of failure to train. Connick, 131 S.Ct. at 1360. Additionally, to rise to the
level of “deliberate indifference,” policymakers must continue to adhere to an
approach that they know or should know has failed to prevent tortious conduct. Id.

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In this case, Hunzeker has failed to set forth any policies or patterns causing
constitutional violations rising to the level of deliberate indifference. Hunzeker
states only that Chief Butler and Ms. Panko, “through their wrongful acts”
established municipal liability under § 1983, but fails to set forth any specific
policy or pattern of conduct that could satisfy deliberate indifference. Because
Hunzeker has failed to put forth any genuine issues of fact, summary judgment as
to this claim is granted.
Alternatively, municipal officials who have “final policymaking authority”
may by their actions subject the government to § 1983 liability. Pembaur v.
Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality
opinion).Whether an official has final policymaking authority is a question of state
law. Id. “As with other questions of state law relevant to the application of federal
law, the identification of the those officials whose decisions represent the official
policy of local government is a legal question to be resolved by the trial judge
before the case is submitted to the jury.” Jett v. Dallas Independent School Dist.,
491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). In making this
determination, the Court must consider state and local law, and the “‘custom or
usage’ having the force of law.” Id. (citing City of St. Louis v. Praprotnik, 485 U.S.
112, 124-25, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)).
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However, before the Court can determine whether an official has final policy
making authority, there must be a showing of connection between the “policy” and
the “inadequate training.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 822-23,
105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Proof of an incident of unconstitutional
activity is not sufficient to impose liability, “unless proof of the incident includes
proof that is was caused by an existing, unconstitutional municipal policy, which
policy can be attributed to a municipal policymaker.” Id. at 823-42. Thus, in order
for Hunzeker to establish a connection between a policy and inadequate training,
he must show that there was a course of action consciously chosen from among
various alternatives. Id. at 823. This is a hard task because “it is difficult to accept
that someone pursues a “policy” of “inadequate training,” unless evidence can be
adduced which proves that the inadequacies resulted from conscious choice – that
is proof that the policymakers deliberately chose a training program which would
prove inadequate.” Id.
Here, as stated above, Hunzeker has failed to establish any specific policy
which could be connected with inadequate training. Hunzeker makes no showing
that there was ever a conscious choice, made by either Chief Butler or Ms. Panko,
over various alternatives to establish a connection for inadequate training. An
allegation of “wrongful acts,” without more, is not enough to establish a municipal
MEMORANDUM DECISION AND ORDER - 14

policy. Thus, Hunzeker has not met his burden to establish an existing municipal
policy that can be attributed to Chief Butler or Ms. Panko. Therefore, summary
judgment as to this claim will be granted.
E.

Proximate Cause of Damages

Hunzeker alleges that Defendants’ actions, as a result of being preoccupied
with legal issues, were the proximate cause of damages to his ranching operations.
There are two components to proximate cause: actual cause and true proximate
cause. Newberry v. Martens, 127 P.3d 187, 191 (Idaho 2005). Actual cause is the
factual question of whether a particular event produced a particular consequence.
Id. (citing Sisters of the Holy Cross, 895 P.2d 1229, 1232-33 (Idaho Ct. App.
1995)). True proximate cause focuses on legal policy, and determines whether
liability for that conduct attaches. Id. Generally, the question of proximate cause is
“one of fact to be submitted to the jury and not a question of law for the court; if
upon all the facts and circumstances, there is a reasonable chance or likelihood of
the conclusions of reasonable [people] differing, the question is for the jury.”
Cramer v. Slater, 204 P.3d 508, 515 (1daho 2009) (quoting Alegria v. Payonk, 619
P.2d 135, 137-38 (Idaho 1980)). The Court finds that Hunzeker has failed to
establish any genuine issue of material fact that certain damages are proximately
caused in this action.
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As to the alleged damages to Hunzeker’s ranching operation, the Court
cannot determine how “Defendants’ actions,” without more, satisfy actual cause.
Hunzeker cites “Defendants’ actions” as proximate cause, but fails to point to any
particular event or action by Defendants that could have caused harm to his
ranching operation. Pls. Mem. in Resp. of Mot. for Summ. J. at 16 (Dkt. 27). This,
without more, does not satisfy the factual question of whether a particular event
caused a specific consequence. Because Hunzeker has failed to tie this allegation to
a particular claim, he has not stated a cause of action. Therefore, summary
judgment as to this claim is granted.
III.

CONCLUSION
Viewing the facts and reasonable inferences drawn therefrom in the light

most favorable to Hunzeker, there exist material issues of fact regarding the
alleged wrongful arrest. For this reason, this issue must be decided by a jury, and
summary judgment as to this claim is dismissed. With regard to the remaining
allegations of interference of marital privacy, malicious prosecution, failure to train
and supervise, and proximate cause of damages, summary judgment is granted.
MOTION TO STRIKE
Defendants filed a Motion to Strike, arguing that portions of Adam
Whitmore’s affidavit constituted expert testimony, when he is not a designated
MEMORANDUM DECISION AND ORDER - 16

expert witness in this case. The Court will grant in part, and deny in part the
Defendants’ Motion to Strike with regard to the affidavit of Adam Whitmore.
The Court will not strike paragraphs 12 and 15 of the affidavit of Adam
Whitmore because the statements contained therein represent personal opinions,
based upon what Officer Whitmore was watching at the time, and not expert
testimony within the scope of F.R.E. 702.
The Court will strike paragraph 14 of the affidavit of Adam Whitmore
because it constitutes expert testimony. There, the statements made by Officer
Whitmore reflect his opinion based upon “experience and training as a police
officer.” Whitmore Aff., ¶ 14 (Dkt. 29). As such, these opinions reflect expert
testimony. Because Officer Whitmore was not designated as an expert witness,
these statements were improper.
Additionally, Defendants seek to strike the affidavit of Rosa Hunzeker,
claiming that it lacks authentication and that it contradicts prior sworn testimony.
“The general rule in the Ninth Circuit is that a party cannot create an issue of fact
by an affidavit contradicting his prior deposition testimony.” Van Asdale v.
International Game Technology, 577 F.3d 989, 998 (9th Cir. 2009) (quoting
Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). This sham
affidavit rule prevents “a party who has been examined at length on deposition”
MEMORANDUM DECISION AND ORDER - 17

from “rais[ing] an issue of fact simply by submitting an affidavit contradicting his
own prior testimony,” which would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of fact.” Yeager v. Bowlin,
693 F.3d 1076, 1080 (9th Cir. 2012) (quoting Kennedy, 952 F.2d at 266).
However, the sham affidavit rule “‘should be applied with caution’” because it is
in tension with the principle that the court is not to make credibility determinations
when granting or denying summary judgment. Van Asdale, 577 F.3d at 988
(quoting Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993)).
There are two important limitations on a district court’s discretion to invoke
the sham affidavit rule. Kennedy, 952 F.2d at 266-67. First, the rule “does not
automatically dispose of every case in which a contradictory affidavit is introduced
to explain portions of earlier deposition testimony,” rather, “the district court must
make a factual determination that the contradiction was really a ‘sham.’” Id.
Second, the inconsistency between a party’s deposition testimony and subsequent
affidavit must be clear and unambiguous to justify striking the affidavit. Id. at 267.
Thus, “the non-moving party is not precluded from elaborating upon, explaining or
clarifying prior testimony elicited by opposing counsel on deposition [and] minor
inconsistencies that result from an honest discrepancy, mistake, or newly
discovered evidence afford no basis for excluding an opposition affidavit.” Van
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Asdale, 577 F.3d at 999 (quoting Messick v. Horizon Indus., 62 F.3d 1227, 1231
(9th Cir. 1995)).
Due to the significant language barriers affecting the parties, and the
inconclusive facts surrounding this case, the Court is not willing to make a
determination that Mrs. Hunzeker’s affidavit constitutes a sham affidavit. These
are factual determinations which are best saved for trial. Accordingly, Defendants’
Motion to Strike Mrs. Hunzeker’s affidavit is denied.
ORDER
IT IS ORDERED:
1. Defendants’ Motion for Summary Judgment is GRANTED IN
PART AND DENIED IN PART as explained above.
2. Defendants’ Motion to Strike the affidavit of Adam Whitmore is
GRANTED IN PART AND DENIED IN PART as explained
above.
3. Defendants’ Motion to Strike the affidavit of Rosa Susana Hunzeker
is DENIED.

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DATED: June 4, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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