Debbie Silvia, on her own behalf and in the interest of the general public v. McI Communications Services, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBBIE SILVIA, on her own behalf and in
the interest of the general public,
Plaintiff-Appellant,
v.
MCI COMMUNICATIONS SERVICES,
INC.; et al.,
Defendants-Appellees.
No. 18-15601
D.C. No. 3:15-cv-04677-JSC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted October 22, 2019
San Francisco, California
Before: WALLACE and MURGUIA, Circuit Judges, and LASNIK,** District
Judge.
Debbie Silvia appeals from the district court’s summary judgment in favor
of MCI Communications Services, Inc., Verizon Business Network Services, Inc.,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
FILED
DEC 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and Engineering Associates, LLC (collectively, “Defendants”) on Silvia’s claims
for prevailing wages under California law. “The California Prevailing Wage Law
is a comprehensive statutory scheme designed to enforce minimum wage standards
on construction projects funded in whole or in part with public funds.” Vector
Res., Inc. v. Baker, 237 Cal. App. 4th 46, 54 (2015) (internal quotation marks
omitted). It requires that workers on “public works” contracts for “construction,
alteration, demolition, installation, or repair work” that are publicly funded be paid
“prevailing wages” for their work. Cal. Lab. Code §§ 1720, 1771. The wage rate
an employer must pay is based on an employee’s proper job classification. Id.
§§ 1770, 1773. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
We review de novo a district court’s summary judgment. Edgerly v. City &
Cty. of San Francisco, 599 F.3d 946, 960 (9th Cir. 2010). We review a district
court’s discovery rulings, including the imposition of sanctions, for an abuse of
discretion. Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1070 (9th Cir.
2016). District courts are afforded “particularly wide latitude” in issuing sanctions
under Federal Rule of Civil Procedure 37(c)(1). Yeti by Molly, Ltd. v. Deckers
Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
The district court properly granted summary judgment on Silvia’s claims for
prevailing wages for performing work under the “Building/Construction Inspector
and Field Soils and Material Tester” classification (“Inspector Theory”) because

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Silvia abandoned this theory in favor of a new theory that she performed “utility
location work” within the “Field Surveyor or Laborer Group 3A” classification
(“Locator Theory”). In her brief opposing Defendants’ motions for summary
judgment, Silvia focused exclusively on her Locator Theory, omitting any
argument on her Inspector Theory. Moreover, at the hearing on Defendants’
motions for summary judgment, Silvia acknowledged that she was no longer
pursuing her Inspector Theory. Because Silvia abandoned her Inspector Theory at
summary judgment, she cannot now revisit it on appeal. See USA Petroleum Co. v.
Atl. Richfield Co., 13 F.3d 1276, 1284 (9th Cir. 1994) (“It is a general rule that a
party cannot revisit theories that it raises but abandons at summary judgment.”)
(collecting cases).
The district court also did not abuse its discretion when it precluded Silvia
from raising her Locator Theory at such a late stage in the litigation. Under
Federal Rule of Civil Procedure 26(e), Silvia was required to supplement or correct
her disclosures and discovery responses “in a timely manner” once she learned that
her disclosures and responses were incomplete or incorrect. Fed. R. Civ. P.
26(e)(1)(A). A party’s failure to comply with Rule 26(e) results in that party being
precluded from “use [of] that information . . . 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 Yeti by Molly, Ltd., 259 F.3d at 1106–07 (holding that

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the burden to show substantial justification or harmlessness is on the party who
made the late disclosure); Benjamin v. B & H Educ., Inc., 877 F.3d 1139, 1150–51
(9th Cir. 2017) (holding that district court did not abuse its discretion in striking
declarations because plaintiffs had not shown that failure to disclose was
substantially justified or harmless). If a Rule 37 sanction operates as a dismissal of
a claim, the district court is “required to consider whether the claimed
noncompliance involved willfulness, fault, or bad faith . . . and also to consider the
availability of lesser sanctions.” R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673
F.3d 1240, 1247 (9th Cir. 2012) (citations omitted).
Until the summary judgment stage, Silvia had relied exclusively on her
Inspector Theory to support her claim for prevailing wages. Silvia did not attempt
to supplement her initial disclosures or interrogatory responses. This was so even
after the district court issued a written order identifying and explaining her
noncompliance with Rule 26, giving her an opportunity to supplement her
disclosures and responses before summary judgment. Once the Locator Theory was
excluded, Silvia was left without a viable theory entitling her to prevailing wages.
Summary judgment followed from the exclusion of the untimely new theory, and
the lack of record evidence supporting Silvia’s long-asserted Inspector Theory.
In addition, the district court implicitly found Silvia was at fault for the
noncompliance. The district court also gave Silvia an opportunity to argue why

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sanctions were not appropriate and considered the possibility of less onerous
alternatives before rejecting them. Silvia failed to demonstrate that her Rule 26
violation was substantially justified or harmless. Therefore, the district court
properly granted summary judgment in favor of Defendants on Silvia’s claims for
prevailing wages based on her Locator Theory.
AFFIRMED.

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