IN RE REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP

DEAN D. PREGERSON, United States District Judge.

This matter comes before the Court on the plaintiffs' motion for partial summary judgment. After reviewing and considering the materials submitted by the parties, and hearing oral argument, the Court adopts the following order.

I. Background

The Court's Order Denying the Defendants' Motion for Summary Judgment contains a detailed background of this action.

II. Discussion

A. Legal Standard

Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, the "mere existence of a scintilla of evidence" in support of the nonmoving party's claim is insufficient to defeat summary judgment. Id. at 252. In determining a motion for summary judgment, all reasonable inferences from the evidence must be drawn in favor of the nonmoving party. Id. at 242.

B. Analysis

1. Chimicles Declarations

The plaintiffs rely on three different Chimicles Declarations in support of their motion for partial summary judgment. The defendants argue that the Chimicles declarations should be stricken.

Federal Rule of Civil Procedure 56(e) requires that affidavits or declarations opposing a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ. p. 56(e). Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under the standard articulated in 56(e). Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir. 1996). Properly authenticated documents, including discovery documents, although such documents are not admissible in that form at trial, can be used in a motion for summary judgment if appropriately authenticated by affidavit or declaration.United States v. 1 Parcel of Real Prop., 904 F.2d 487, 491-92 (9th Cir. 1990).

The defendants argue that the Chimicles declarations constitute inadmissible "testimony" of counsel, fail to state the basis of counsel's knowledge and are not based on personal knowledge. While the facts underlying the affidavit must be of a type that would be admissible as evidence, Rule 56(e), the affidavit itself does not have to be in a form that would be admissible at trial. Hughes v. United States, 953 F.2d 531, 543 (9^th Cir. 1992). In addition, personal knowledge can be based on a review of documents. Bayview Hunters Point Cmty. Advocates v. Metropolitan Transp. Comm'n, 177 F. Supp.2d 1011, 1032 (N.D. Cal. 2001);United States v. Matsumaru, 244 F.3d 1092, 1102 (9th Cir. 2001). In this case, the Chimicles declarations are based on counsel's analysis of the discovery and pleadings in this case, and are permissible on this basis.

Next, the defendants argue that the truth of a disputed material fact cannot be established based on an attorney statement alone. Nieves v. University of P.R., 7 F.3d 270, 276 n. 9 (1st Cir. 1993) ("Factual assertions by counsel in motion papers, memoranda, briefs, or other such `self-serving' documents, are generally insufficient to establish the existence of a genuine issue of material fact at summary judgment."). In addition, the defendants argue, Chimicles may not serve as the plaintiffs' expert on the damages issue. Topps Chewing Gums, Inc. v. Imperial Toy Corp., 686 P. Supp. 402, 409 (E.D.N.Y. 1988) (describing affidavit as "nothing more than an opinion containing the conclusions of law of an alleged attorney expert"); United States v. 99.66 Acres of Land, 970 F.2d 651, 657 (9^th Cir. 1992) (expert not qualified; he was "merely calculating numbers provided . . . that were not independently established as valid."). According to the plaintiffs, counsel is not being offered as an expert in this case, and where the declarations rely on expert analysis, the appropriate reports are cited and attached as exhibits.

The defendants also argue that they were without notice of plaintiffs' intention to rely on Chimicles' valuation and accounting analysis in establishing the plaintiffs' alleged damages, and thus were deprived, of an opportunity to depose him and test his theories. In support of their motion for summary judgment, the defendants contend that:

The valuation analysis offered by Mr. Chimicles of the LT Limited Partnership Interests and the assets held by the LT Limited Partnerships is the result of double-counting, indiscriminate addition of numbers on financial statements and arbitrary and speculative assumptions. Moreover, Mr. Chimicles' valuation is not based on generally recognized valuation theory. For these reasons, Mr. Chimicles' valuation theory is fatally flawed and invalid.

(Schweihs Decl. in Supp. Defs' Mtn. For Summ. Judgmt. ¶ 5.)
While the Court declines to strike the Chimicles' declarations (particularly in light of the fact that the Court has not relied on them in ruling on this motion), the Court notes that if the plaintiffs intend to rely on Chimicles' calculations to establish the fact or amount of the plaintiffs' damages at trial, the Court will revisit the issues raised in the defendants' opposition at that time.

Further, the defendants argue that the declarations rely on unauthenticated documents in violation of Federal Rule of Evidence 901 (a) and on charts created by extracting information from other sources. Specifically, the defendants attack Exhibits 29, 30, 31, 32 and 40, charts which compile information obtained through discovery. The defendants do not dispute the accuracy of these charts, and the Court finds that they constitute summary exhibits that are permissible under Federal Rule of Evidence 1006.

For all these reasons, the Court denies the defendants' request to strike the Chimicles declarations.

III. Conclusion

The plaintiffs move for summary judgment on the Underpayment Claim, and the Unrestricted Cash component of the Hidden Assets Claim in the amount of $56,300,000. The plaintiffs also move for partial summary judgment, as to liability, on the ground that the Casden Defendants issued false and misleading statements with respect to the Reserves aspect of the Hidden Assets Claim. The plaintiffs have not met their burden of establishing that no genuine issue as to any material fact exists with respect to these claims. For the reasons stated in the Court's Order denying the defendants' motion for summary judgment, the Court denies the plaintiffs' motion for partial summary judgment.

IT IS SO ORDERED.