                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 28 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


YAMIL MORALES,                                   No. 14-15289

              Plaintiff - Appellant,             D.C. No. 2:11-cv-02102-LRH-
                                                 NJK
 v.

ARIA RESORT & CASINO, LLC,                       MEMORANDUM*

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                            Submitted March 17, 2016**
                             San Francisco, California

Before: BYBEE and N.R. SMITH, Circuit Judges and HELLERSTEIN,*** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
       The district court granted summary judgment for Aria Resort & Casino,

LLC, holding that Morales is obligated to pay Aria $500,000, plus interest and

statutory damages, under a credit agreement he signed. Morales raises two

arguments on appeal. First, he argues that he is relieved from his obligation to pay

Aria because Aria materially breached the credit agreement. Second, he contends

that the district court was wrong to rely on an unauthenticated copy of the credit

agreement when granting summary judgment. We find no merit to either argument

and affirm.

1.     Morales argues that he is no longer obligated to pay Aria back because Aria

materially breached the credit agreement. This alleged material breach consists of

Aria debiting a bank account different from the one Morales had indicated in his

credit application.

       Aria did not materially breach the credit agreement because it had no duty to

debit any specific bank account. Morales signed markers authorizing the Aria to

debit any of Morales’s bank accounts, whether or not he specified them in his

credit application. Further, as explained by the district court, nothing in the

parties’ credit agreement obligated Aria to present the markers to Morales’s bank

in the first place.




                                           2
      Even if Aria had a duty to debit a certain bank account, no reasonable jury

could find such a breach was so material that it absolved Morales of his obligation

to pay. To relieve a party of having to perform under a contract, the other party’s

breach must be of “so material and substantial a nature that [it] affect[s] the very

essence of the contract and serve[s] to defeat the object of the parties.” Rano v.

Sipa Press, Inc., 987 F.2d 580, 586 (9th Cir. 1993) (alterations in original) (citation

omitted).

      Here, the essence of the parties’ credit agreement was that Aria would loan

Morales money and that Morales would pay that money back. Morales submitted

no evidence from which a jury could find that the Aria attempting to debit the

wrong bank account “affect[ed] the very essence of the contract.” Debiting the

wrong account is, at best, tangential to the primary object of the parties’ credit

agreement: the loan of money and the repayment of that money.

2.    Morales also argues the district court erred by relying on an unauthenticated

copy of the credit agreement when granting summary judgment. Morales has not

shown that the district court abused its discretion in finding that the document was

authentic. See Fed. R. Evid. 901(a) (stating that the authentication requirement is

met when there is “evidence sufficient to support a finding that the item is what the

proponent claims it is”); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.


                                           3
2002) (discussing authentication requirements in the summary judgment context).

Aria submitted an affidavit attesting to the authenticity of the credit agreement.

Aria also offered to submit an original copy to the court (and to Morales) if there

was any question about its authenticity. We cannot say the district court abused its

discretion in finding that the copy was authentic.

      But even if the agreement were not authentic, this would not create a

genuine dispute of material fact precluding summary judgment for Aria. Morales

admitted in deposition that he signed the credit agreement with Aria, that the

agreement obligated him to pay Aria back, and that Morales never paid it. These

are the only facts material to whether Aria was entitled to summary judgment, and

Morales has not put any of them into dispute.

      AFFIRMED.




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