                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 16 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


    KAY BURDEN,                                  No. 16-55371

            Plaintiff-Appellant,                 D.C. No. 8:15-cv-00638-AG-E

      v.

    BAR LOUIE ANAHEIM, INC., DBA Bar             MEMORANDUM*
    Louie,

            Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                             Submitted May 12, 2017**
                               Pasadena, California

Before: KOZINSKI and OWENS, Circuit Judges and WILKEN,*** Senior District
Judge.

      Kay Burden appeals the district court’s decision to grant summary judgment


*
 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 Claudia Wilken, Senior District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
for Bar Louie Anaheim, Inc. (BLA) in this diversity slip-and-fall case. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

     Burden argues that the district court erred when it admitted Kerry Paredes’

declaration into evidence. Paredes was not identified as a witness in BLA’s initial

disclosures. If a party fails to provide information or identify a witness as required

by Federal Rule of Civil Procedure 26(a), “the party is not allowed to use that

information or witness to supply evidence on a motion, at a hearing, or at a trial,

unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.

37(c)(1); see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101,

1106-07 (9th Cir. 2001). The standard of review for a district court’s decisions

concerning Rule 37 sanctions is abuse of discretion. See Ollier v. Sweetwater

Union High Sch. Dist., 768 F.3d 843, 859 (9th Cir. 2014).

     BLA’s failure to identify Paredes in its initial disclosures was harmless.

Considering de novo the evidence that BLA provided in discovery, see Brunozzi v.

Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017), in the light most

favorable to Burden as the non-movant on summary judgment, see Fed. R. Civ. P.

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of

N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987), it can be inferred that BLA did

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not control Bar Louie after the sale and therefore was not the right defendant. See

Kesner v. Superior Court, 1 Cal. 5th 1132, 1158 (2016). Accordingly, Paredes’

declaration was necessary only to authenticate the documents. But Burden had

been given the documents previously and does not dispute their authenticity. She

offered no evidence that BLA controlled the property. The district court did not

abuse its discretion by admitting Paredes’ declaration and its attachments, and the

court correctly granted summary judgment for BLA.

    AFFIRMED.




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