Saroyan Lumber Co. v. El & El Products Corp.
Docket: No. 99-56565; D.C. No. CV-98-00720-NM
Court: Court of Appeals for the Ninth Circuit; May 7, 2001; Federal Appellate Court
Saroyan Lumber initiated a lawsuit against El. El Wood Products, alleging copyright and trademark infringement, unfair competition, and breach of contract. Saroyan appealed the district court's summary judgment favoring El, which was partly justified by Saroyan's failure to prove damages. 1. **Admissibility of Evidence**: The court ruled that Saroyan's attorney's declarations and attached exhibits were inadmissible under Federal Rules of Civil Procedure 56(e) due to lack of personal knowledge and competence, aligning with *Canada v. Blain’s Helicopters, Inc.*. 2. **Rule 56(f) Continuance Request**: The district court did not abuse its discretion by denying Saroyan's late request for a continuance to authenticate evidence, as such requests should be made before the summary judgment hearing, referencing *Ashton-Tate Corp. v. Ross*. 3. **Evidence of Damages**: Upon de novo review, the court found the district court erred by granting summary judgment based on undisputed facts when Saroyan had presented admissible evidence to contest material facts. The declaration from Mary Karpus, a former El employee, indicated that El profited from infringing activities, providing sufficient evidence to support Saroyan's claims of damages. This led to the reversal of the summary judgment regarding copyright infringement and breach of contract claims, as a genuine issue of fact existed concerning Saroyan's damages. Insufficient admissible evidence exists to establish a genuine issue of fact regarding unfair competition and trademark infringement claims. The court references the precedent set in Century 21 Real Estate Corp. v. Sandlin, which states the test for both claims is the same, focusing on consumer confusion. Karpus’s declaration fails to address whether El and El continued to use the 'Premium Series' trademark post-termination of their distribution agreement or if such use would likely confuse consumers. As the available evidence does not indicate consumer confusion, the district court's decision to grant summary judgment on these claims is upheld. The ruling includes that each party will bear its own appellate costs and specifies the disposition is not for publication or citation in the circuit courts, except as permitted by 9th Cir. R. 36-3.