Daniel Jang v. Sagicor Life Insurance Company ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL JANG, an individual, No. 19-55475
Plaintiff-Appellant, D.C. Nos.
5:17-cv-01563-JGB-KK
v. 5:17-cv-01585-JGB-KK
SAGICOR LIFE INSURANCE
COMPANY, a business entity form MEMORANDUM*
unknown; et al.,
Defendants-Appellees.
DANIEL JANG, an individual; KEVIN No. 19-55533
JANG,
D.C. No.
Plaintiffs-Appellants, 5:17-cv-01563-JGB-KK
v.
SAGICOR LIFE INSURANCE
COMPANY, a business entity form
unknown; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted April 15, 2021
Pasadena, California
Before: PAEZ and VANDYKE, Circuit Judges, and GLEASON,** District Judge.
In these consolidated cases, Plaintiff Daniel Jang appeals from the district
court’s evidentiary ruling and granting of Defendants’ motions for summary
judgment, and Plaintiff Daniel Jang and his counsel Kevin Jang appeal from the
magistrate judge’s order denying discovery and imposing discovery sanctions
against them. As the parties are familiar with the facts, we do not recount them here.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion when it excluded portions of
three declarations submitted by Plaintiff, because the declarants lacked personal
knowledge of the asserted statements. Fed. R. Evid. 602. The declarants did not
witness the events, did not explain how they had personal knowledge of the events,
did not ground their statements “in observations and experience,” United States v.
Whittemore, 776 F.3d 1074, 1082 (9th Cir. 2015) (citation omitted), and it could not
be reasonably inferred from the declarations “the nature of their participation in the
matters to which they swore,” Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999,
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2
1018 (9th Cir. 1990) (per curiam). See also Lowry v. City of San Diego, 858 F.3d
1248, 1256 (9th Cir. 2017) (en banc).
Plaintiff also asserts that the district court erred in excluding portions of the
declarations without affording him a chance to address Defendants’ objections.
Plaintiff was served with the objections but did not file a response despite bearing
the burden of proof to show the admissibility of the declarants’ statements.
Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir. 2002). Moreover,
Plaintiff invited any error by failing to respond to the objections and then claiming
on appeal that the district court erred. In re Oracle Corp. Sec. Litig., 627 F.3d 376,
385–86 (9th Cir. 2010). Finally, even if the district court erred in excluding portions
of the declarations, the declarations did not establish a genuine issue of triable fact.
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).
The Court reviews a grant of summary judgment de novo. Sandoval v. County
of San Diego, 985 F.3d 657, 665 (9th Cir. 2021). Summary judgment is appropriate
when there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a).
However, “the existence of ‘some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment.’”
Momex-Caselis v. Donohue, 987 F.3d 835, 841 (9th Cir. 2021) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is
3
no genuine issue for trial,” and summary judgment is appropriate. Ricci v.
DeStefano, 557 U.S. 557, 586 (2009) (emphasis in original) (citation omitted).
As to Plaintiff’s claims for breach of contract, declaratory relief, and breach
of an implied covenant of good faith and fair dealing, de novo review of the record
demonstrates that there was no genuine issue of material fact as to whether the South
Korean medical records belonged to the insured. Although the parties dispute this
fact, the evidence produced by Plaintiff—considered as a part of the record as a
whole and viewed in the light most favorable to Plaintiff—could not lead a rational
trier of fact to find for Plaintiff. Accordingly, there was no genuine issue of material
fact for trial.
As to Plaintiff’s claim for intentional infliction of emotional distress, de novo
review of the record shows that Plaintiff failed to raise a triable issue with regard to
the necessary “extreme and outrageous” element of intentional infliction of
emotional distress. Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009) (citation omitted).
The record is devoid of any extreme and outrageous conduct by Defendants’
investigators aside from Plaintiff and Plaintiff’s counsel’s conclusory declarations,
and “[w]hen the nonmoving party relies only on its own affidavits to oppose
summary judgment, it cannot rely on conclusory allegations unsupported by factual
data to create an issue of material fact.” Hansen v. United States, 7 F.3d 137, 138
(9th Cir. 1993) (per curiam) (citing United States v. 1 Parcel of Real Property, 904
4
F.2d 487, 492 n.3 (9th Cir. 1990)). Accordingly, there was no genuine issue of
material fact for trial.
Appellants have forfeited their claims related to the magistrate judge’s
discovery and sanctions order. Federal Rule of Civil Procedure 72(a) allows a party
14 days to object to a magistrate judge’s non-dispositive order. Appellants did not
file objections to the magistrate judge’s discovery and sanctions order with the
district judge. A party “who fails to file timely objections to a magistrate judge’s
nondispositive order with the district judge to whom the case is assigned forfeits its
right to appellate review of that order.” Simpson v. Lear Astronics Corp., 77 F.3d
1170, 1174 (9th Cir. 1996); accord Glenbrook Homeowners Ass’n v. Tahoe Reg’l
Planning Agency, 425 F.3d 611, 619–20 (9th Cir. 2005).
AFFIRMED.
5