United States District Court, D. Hawaii
ANDERSON BURTON CONSTRUCTION, INC., a California corporation, Plaintiff,
ENVIRONMENTAL CONTROL SPECIALISTS, INC., a Hawaii corporation; IN & OUT BUILDERS, INC., a Hawaii corporation; and DOES 1-10, Defendants.
ORDER (1) DENYING MOTION FOR SUMMARY JUDGMENT NO. 2
RE: CAUSATION, ECF NO. 100; AND (2) DENYING MOTION FOR
SUMMARY JUDGMENT NO. 3 RE: BREACH OF CONTRACT, ECF NO.
Michael Seabright, Chief United States District Judge
Burton Construction, Inc. (“Plaintiff”) filed its
First Amended Complaint (the “FAC”), ECF No. 38,
bringing several claims against Environmental Control
Specialists, Inc. (“ECS”) and In & Out
Builders, Inc. (“IOB”) (collectively,
“Defendants”). IOB then brought several motions
for summary judgment.
separate order, the court granted in part and denied in part
IOB's Motion for Summary Judgment No. 1 Re: Waiver of
Subrogation, ECF No. 98. ECF No. 179. Now before the court
are IOB's two remaining motions for summary judgment:
Motion for Summary Judgment No. 2 Re: Causation, ECF No. 100;
and Motion for Summary Judgment No. 3 Re: Breach of Contract,
ECF No. 102. Because there are genuine issues of material
fact concerning causation and breach of contract, the Motions
moves for summary judgment based on lack of causation,
arguing that IOB's work did not cause the property
damage. ECF No. 100-1 at 11. Drawing all reasonable
inferences on behalf of the nonmoving party, the court easily
determines that the February 19, 2018 Widing Deposition (the
“2/19/18 Widing Deposition”), ECF No. 101-5, and
the September 24, 2017 Ballesteros Deposition (the
“9/24/17 Ballesteros Deposition”),  ECF No. 134-7,
create genuine issues of material fact concerning whether IOB
caused property damage to the Visitor's Center. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (recognizing that inferences drawn from
underlying facts must be viewed in the light most favorable
to the party opposing summary judgment). Thus, the court
DENIES the Motion for Summary Judgment No. 2 Re: Causation.
separately moves for summary judgment based on breach of
contract. ECF No. 102. IOB argues that the IOB Subcontract
only required indemnification for damages caused by IOB, and
IOB did not cause the damage to the Visitor's Center. ECF
No. 102-1 at 1. As discussed above, there is a genuine issue
of material fact concerning whether IOB caused the damage to
the Visitor's Center. IOB also argues that there is no
breach of contract because the IOB Subcontract did not
require IOB to protect the interior of the Visitor's
Center from weather-related damage. Id. But the
contract between the National Park Service and Plaintiff (the
“Prime Contract”) is incorporated into the IOB
Subcontract,  ECF No. 38-3 at 2, and IOB's roofing
work pertains to the Prime Contract's provision requiring
Plaintiff to “[m]aintain the building in a weather
tight condition throughout the construction period.”
ECF No. 133-5 at 17. IOB is thus also required to maintain
the Visitor's Center so that it is weather tight.
Id.; see also ECF No. 38-2 at 2.
Accordingly, the Motion for Summary Judgment No. 3 Re: Breach
of Contract is DENIED.
foregoing reasons, the Motion for Summary Judgment No. 2 Re:
Causation is DENIED; and the Motion for Summary Judgment No.
3 Re: Breach of Contract is DENIED. Further, the Request for
Judicial Notice is GRANTED; IOB's Motion to Strike is
DENIED; and Plaintiffs Motion to Strike is DENIED.
 The parties are familiar with the
facts, and the court will not repeat them here.
 IOB argues that, under Federal Rule of
Civil Procedure 32(a), the 9/24/17 Ballesteros Deposition is
not admissible because IOB was neither present nor
represented at the taking of the deposition. ECF No. 147-1 at
11. Depositions may be considered as Rule 56 affidavits for
purposes of a motion for summary judgment, and thus need not
comply with Rule 32(a). Hoover v. Switlik Parachute
Co., 663 F.2d 964, 967 (9th Cir. 1981). “Thus, the
relevant inquiry is whether the documents . . . otherwise
qualify as affidavits.” Id. at 966. Here, the
9/24/17 Ballesteros Deposition qualified as an affidavit
under Rule 56 because the deposition was made based on
Ballesteros' personal knowledge, set out facts that would
be admissible in evidence, and showed that Ballesteros was
competent to testify on the matters stated. See Fed.
R. Civ. P. 56(c)(4). Thus, the 9/24/17 Ballesteros Deposition
may be considered for purposes of summary judgment as a Rule
56 affidavit. Further, IOB is not prejudiced by the
court's holding because IOB was given the opportunity to
cross-examine Ballesteros in a later deposition.
 The IOB Subcontract at ¶ 1.B.
provides, in relevant part:
SUBCONTRACTOR agrees to be bound to PRIME CONTRACTOR
in the same manner and to the same extent as PRIME CONTRACTOR
is bound to OWNER under the Contract Documents, to the extent
of the work provided for in this Subcontract, and that where,
in the Contract Documents, reference is made to PRIME
CONTRACTOR, and the work or specifications therein pertains
to SUBCONTRACTOR's trade, craft, or type of work, then
such work or specification shall be interpreted to apply to
SUBCONTRACTOR instead of PRIME CONTRACTOR.
ECF No. 38-3 at 2. The contract between the National
Park Service and Plaintiff is listed in the IOB Subcontract
as one of the “Contract ...