                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 17 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LAWRENCE HELM,                                  No.   17-35490

                Plaintiff-Appellant,            D.C. No. 3:16-cv-05823-BHS

 v.
                                                MEMORANDUM*
LOWE'S HOME CENTERS, LLC, a North
Carolina corporation, doing business and
licensed in the State of Washington,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                             Submitted May 14, 2018**
                               Seattle, Washington

Before: BERZON, THACKER,*** and HURWITZ, Circuit Judges.

      In this diversity case, Lawrence Helm claims that Lowe’s Home Centers, LLC



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Stephanie Dawn Thacker, United States Circuit Judge
for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
breached a duty by failing to warn him about the presence of a yellow caution cone

on its property. The district court granted Lowe’s motion for summary judgment.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

       1. Absent state supreme court precedent, a federal court sitting in diversity

“must predict how the highest state court would decide the issue using intermediate

appellate court decisions, decisions from other jurisdictions, statutes, treatises, and

restatements as guidance.” In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990).

Helm argues that the district court erred in granting summary judgment because it

relied upon Engleson v. Little Falls Area Chamber of Commerce, 362 F.3d 525, 528–

29 (8th Cir. 2004), which interpreted Minnesota law. But the district court noted that

the Washington Supreme Court follows the Restatement (Second) of Torts with

respect to premises liability, see Tincani v. Inland Empire Zoological Soc’y, 875

P.2d 621, 630–31 (Wash. 1994) (en banc), and cited to Washington premises liability

cases. Because there was no Washington case directly on point, the district court also

cited Engleson, noting that it applied the relevant Restatement provision under very

similar circumstances. The district court did not err in considering this authority to

predict how the Washington Supreme Court would apply the Restatement under the

facts of this case.

       2. Helm argues that the district court erred by granting Lowe’s motion to strike

materials in his brief responding to the motion for summary judgment because the


                                           2
motion to strike was set forth in a reply brief. But the local rules for the Western

District of Washington specifically provide that requests to strike material contained

in briefs “shall not be presented in a separate motion to strike, but shall instead be

included in the responsive brief.” W.D. Wash. L. Civ. R. 7(g).

       Moreover, the court did not abuse its discretion in granting the motion. El

Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003) (noting the standard

of review). The stricken statements by Helm’s counsel speculated as to the purpose

of the placement of the cone and offered his opinions about whether Lowe’s was

negligent. Counsel neither witnessed the incident nor provided any foundation for

his expertise or opinions. See Fed. R. Evid. 701(a) (requiring lay testimony to be

“rationally based on the witness’s perception”); Fed. R. Evid. 702(b)–(c) (requiring

expert testimony to be “based on sufficient facts or data” and “the product of reliable

principles and methods”); Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used

to support or oppose a motion must . . . set out facts that would be admissible in

evidence . . . .”).

       3. Because Helm failed to respond to Lowe’s requests for admission, he

admitted that that he “observed the yellow caution cone before [he] tripped and fell”

and that “there was nothing obstructing [his] vision of the yellow caution cone at the

time of the alleged incident.” See Fed. R. Civ. P. 36(a)(3) (failing to answer or object

to a request for admission results in the matter being deemed admitted). Given


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Helm’s admissions, together with undisputed evidence about the color, height, and

placement of the cone, the district court correctly concluded that “the cone was an

open and obvious warning marker,” and that there were “no admissible facts in the

record to support” Helm’s tort claim. See Restatement (Second) of Torts § 343A

cmt. e (Am. Law. Inst. 1965) (ruling out landowner liability if a condition is “so

obvious” that visitors “may be expected to discover” it). The photographs of the

scene do not contradict Helm’s admissions, but merely show the placement of the

cone and adjoining pallets.

      AFFIRMED.




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