NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SWEET PEOPLE APPAREL, INC., DBA Miss Me, a California corporation and RCRV, INC., DBA Rock Revival, a California corporation,

Plaintiffs

- Appellants,

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

Defendants

- Appellees. No. 18

- 55036
D.C. No. 2:16

- cv - 00940

- TJH

- JC

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Terry J. Hatter, District Judge, Presiding Argued and Submitted December 7, 2018

Pasadena, California Before: WARDLAW and OWENS, Circuit Judges, and DORSEY, ** District Judge. Sweet People Apparel, Inc. and RCRV, Inc. (“Sweet People”) appeal s the

* This disp osition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Jennifer A. Dorsey, United States District Judge for the District of Nevada, sitting by designation. 

# FILED

JAN 11 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

district court’s grant o f summary judgment in favor of Phoenix Fibers, Inc. (“Phoenix Fibers”) in its breach of contract, unfair competition, and trademark infringement action. We have jurisdiction pursuant to 28 U.S.C. § 1291

. We affirm.
1. The district court properly gran ted summary judgment in favor of Phoenix Fibers because Sweet People failed to establish , with admissible evidence , its prima facie case. See Celotex Corp. v. Catrett , 477 U.S. 317, 322

– 23 (1986)

. After Phoenix Fibers lodged objections to the evidence that Sweet People filed with its opposition to summary judgment, Sweet People bore the burden “to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Fed. R. Civ. P. 56 advisory committee’s note to 201 0 amendment (explaining Fed. R. Civ. P. 56(c)(2)). But Sweet People failed to respond to Phoenix Fibers’ objections.
Because Sweet People failed to demonstrate or explain the admissibi lity of its proffered evidence, the district court did not abuse its discretion in excluding Sweet People’s unauthenticated deposition transcripts and emails , see Las Vegas Sands, LLC v. Nehme , 632 F.3d 526, 532

– 33 (9th Cir. 2011), a s well as the inadmissible portions of its declarations , see, e.g. , Fed. R. Evid. 602, 801, from its consideration of Phoenix Fibers’ motion for summary judgment. See Hooper v. Lockheed Martin Corp. , 688 F.3d 1037, 1051

– 52 (9th Cir. 2012). The district court bore no burden to “com b through the voluminous record searching for3

evidentiary bases to introduce the evidence at issue” without Sweet People’s guidance. In re Oracle Corp. Sec. Litig. , 627 F.3d 376, 386 (9th Cir. 2010). Therefore , the district court did not err in concluding that Phoenix Fibers “is ‘entitled to a judgm ent as a matter of law’ because [Sweet People] has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.” Celotex Corp. , 477 U.S. at 323 (quoting Fed. R. Civ. P. 56(a))

. 2. Sweet Peo ple waived its right to challenge the district court’ s evidentiary rulings. “It is well established that an appellate court will not reverse a district court on the basis of a theory that was not raised below.” Alaska Airlines, Inc. v. United Airlines, I

nc. , 948 F.2d 536, 546 n.15 (9th Cir. 1991)

. F or the first time on appeal, Sweet People attempts to respond to Phoenix Fibers’ evidentiary objections and argues that the district court erroneously excluded its proffered evidence. But Sweet People “did no t raise these arguments before the district court in [its] opposition to summary judgment, so they [are] waived.” Loomis v. Cornish , 836 F.3d 991, 997 ( 9th Cir. 2016) ; see also Coomes v. Edmonds Sch. Dist. No. 15 , 816 F.3d 1255, 1261 n.4 (9th Cir. 2016) (“We decline to address new evidence cited for the first time on appeal to seek reversal of a lower court’s summary judgment determination.”)

. AFFIRMED.Sweet People Apparel, Inc. v. Phoenix Fibers, Inc. , No. 18

- 55036 Dorsey , District Judge, dissenting:
I would reverse the district court’s grant of summary judgment in favor of
Phoenix Fibers for two independent reasons . 1. The district court concluded that Sweet People failed to establish a prima
facie case only because it preclud ed much of the evidence that Sweet Peop le proffered in opposition to Phoenix Fibers’s motion. In excluding this evidence, the

court applied the outdated standard that only evidence that is authenticated and admissible in its present form may be considered at the summary

- judgment stage.
See Orr v. Bank of America , 285 F.3d 764 , 773 (9th Cir. 2002) . But the 2010 amendment to Federal Rule of Civil Procedure 56 “eliminate[d] t h[is] unequivocal requirement ” and mandates only that the substance of the proffered evidence
would be admissible at trial. Romero v. Nev. Dep’t of Corr ., 673 F. App’x 641, 644 (9th Cir. 2016) ; see also Fed. R. Civ. P. 56 advisory comm

. note to 2010
amendment ; Lee v. Offshore Logistical & Transp ., L.L.C. , 859 F.3d 353, 355 (5th Cir. 2017); Fraternal Order of Police, Lodge 1 v. City of Camden , 842 F.3d 231, 238 (3d Cir. 2016); Humphreys & Partners Architects, L.P. v. Lessard Design,
Inc. , 790 F.3d 532, 538 (4th Cir. 2015); Jones v. UPS Ground Freight, 683 F.3d 1283, 1293

– 94 (11th Cir. 2012). 

# FILED

JAN 11 2019 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2 As in Orr , t he district court here excluded Sweet People’s deposition transcripts because they lacked a reporter’s certification. See Orr , 285 F.3d at 77 4

. Because the court applied an incorrect legal standard, it abused its discretion. See Cooter & Gell v. Hartmarx Corp ., 496 U.S. 384, 405 (1990). A nd a lthough Sweet People had the burden of demonstrating that its evidence could be presented in an admissible form, t he deposed witnesses were all listed on the parties’ joint trial witness list , so it should have been apparent that the evidence’s substance

— t he witnesses’ intended trial testimony

— would not have required authentication. See
Lee , 859 F.3d at 355 (holding that the district court erred in dismissing a “report solely because it was not sworn [and] without considering [the appellant’s] argument th at” the report’s author “would testify to those opinions at trial”) ; Fraser v. Goodale , 342 F.3d 1032, 1036 (9th Cir. 2003) (“ [W] e need not decide whether the diary itself is admissible. It would be sufficient if the contents of the diary are admissible at trial, even if the diary itself may be inadmissible. ”). This case is thus distinguishable from In re Oracle Corporation Securities Litigation , in
which the district court would have had to proactively conceive of permissible,

non - hearsay application s o f the proffered evidence in a record that consisted of “over 134 deposition days, countless discovery requests and answers, and over 2.1 million pages of documents.” 627 F.3d 376, 385 (9th Cir. 2010) (“As the3 experienced district judge quipped, the word ‘ voluminous’ does not do justice to the record in this case.”)

. Instead of address ing the district court ’s application of an incorrect legal standard, the majority concludes that Sweet People waived its challenge s to the evidentiary rulings by failing to respond to Phoenix Fibers’s objections . But this court “will not deem [an] issue waived if the district court actually considered it.” Cmty. House, Inc. v. City of Boise , 490 F.3d 1041, 1054 (9th Cir. 2007). Here, the court below considered Phoenix Fibe rs’s evidentiary objections on their merits rather than deeming Sweet People’s non

- response as consent to sustaining them.
And “even if the precise issue we face has been raised for the first time on appeal, the waiver rule is not one of jurisdiction, but discretion. We can exercise that discretion to consider a purely legal question when the record relevant to the matter
is ful ly developed.” United States v. Northrop Corp. , 59 F.3d 953, 958 n.2 (9th Cir. 1995). T he que stion of whether the court below applied the correct legal
standard is purely legal , and district courts in this circuit (and the litigants who practice before t hem) would be well served by guidance on the continued viability
of Orr after the 2010 amendment to Rule 56.
2. Even if the district court had correctly excluded the three categories of
evidence it addressed , I would still reverse its grant of summary judgment. Unlike the depositions and e mails, which were excluded in full, the district court excluded4 unspecified portions of the two declarations Sweet People proffered. The court then granted Phoenix Fibers su mmary judgment in a single concluding sentence: “After disregarding the portions of the two declarations that contained inadmissible evidence, the remaining portions were insufficient to satisfy Plaintiffs’ burden of establishing a prima facie case for any of its’ [sic] claims.” But it is unclear what portions of those declarations the court deemed admissible. Additionally, Sweet People submitted evidence with its opposition beyond the depositions, e mails, and declarations, such as discovery responses and invoices stemming from Phoenix Fibers’s resale of its products. Phoenix Fibers objected to only some of this evidence, but the district court limited its analysis to the three categories of evidence it excluded

. We therefore have no means of discerning what evidence the district court considered, so we cannot adequately review whether Sweet People presented sufficient evidence to survive summary judgment

. For these reasons , I respectfully dissent.