Cohen v. Chenowth, 3:22-cv-01451

Plaintiffs King and Heather Cohen oppose motions by defendants Rory Chenowth and Kellye Laughery; Cohen seeks leave to (1) object to a statement in Chenowth’s declaration as hearsay and (2) file an untimely affidavit in opposition to defendants’ motion to dismiss.
Chenowth’s declaration (filed Dec. 23, 2022) contains a statement attesting to his location during the events at issue; Cohen filed a reply to a sanctions motion on Jan. 13, 2023.
Defendants filed a motion to dismiss on Dec. 7, 2022; Cohen filed a timely (but overlength) response on Jan. 12, 2023.
Cohen attributes the lateness of the proposed affidavit to COVID-19 symptoms, but first asserted having COVID on March 6, 2023, casting doubt on the excuse for missing the January deadline.
The proposed untimely affidavit includes screenshots of text messages said to show a timeline and challenge defendants’ alibi; the court found those materials immaterial at the motion-to-dismiss stage because the court must accept the complaint’s allegations as true and generally will not consider extra-complaint material.
Court disposition: both motions (to file the hearsay objection and to file the untimely affidavit) are denied—the objection is untimely and meritless; the affidavit is untimely and improper to consider on a motion to dismiss.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Cohen may file a late objection that Chenowth’s declaration is hearsay	The statement is hearsay and should be objected to	The statement is Chenowth’s own assertion of his location and thus not hearsay under Rule 801	Denied: untimely and lacking merit
Whether Cohen may file an untimely affidavit opposing the motion to dismiss	COVID-19 prevented timely filing; affidavit and screenshots are needed to show timeline, defeat alibi, and support negligence-per-se claim	The filing is untimely; at motion-to-dismiss stage court should not consider materials beyond the complaint	Denied: COVID excuse unpersuasive; affidavit immaterial at motion-to-dismiss stage

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for facial plausibility on a motion to dismiss)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (establishes plausibility pleading standard)
Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010) (court must draw all reasonable inferences for nonmoving party)
Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048 (9th Cir. 2007) (generally a court may not consider material beyond the complaint on a motion to dismiss)
RG Abrams Ins. v. L. Offs. of C.R. Abrams, 342 F.R.D. 461 (C.D. Cal. 2022) (party’s own declaration is not hearsay)