Giulio v. BV Centercal, LLC

• Decision Date: 06 September 2011
• Docket Number: No. CV 09–481–AC.,CV 09–481–AC.
• Citation: 815 F.Supp.2d 1162
• Parties: Jeffrey GIULIO, individually; and Jeffrey Giulio, a conservator of the estate of T.G., a minor child, Plaintiff, v. BV CENTERCAL, LLC, a Delaware corporation; CenterCal Associates, LLC, a Delaware corporation; CenterCal Properties, LLC, a Delaware corporation; IPC International Corporation, an Illinois corporation, City of Tualatin, a municipal corporation; and Brad King, an individual, Defendants.
• Court: U.S. District Court — District of Oregon

815 F.Supp.2d 1162

Jeffrey GIULIO, individually; and Jeffrey Giulio, a conservator of the estate of T.G., a minor child, Plaintiff,

v.BV CENTERCAL, LLC, a Delaware corporation; CenterCal Associates, LLC, a Delaware corporation; CenterCal Properties, LLC, a Delaware corporation; IPC International Corporation, an Illinois corporation, City of Tualatin, a municipal corporation; and Brad King, an individual, Defendants.

No. CV 09–481–AC.

United States District Court, D. Oregon.

Sept. 6, 2011.

Susan K. Lain, Hohbach Law Firm, LLC, Lake Oswego, OR, for Plaintiff.

Wm. Kelly Olson, Mitchell Lang & Smith, Portland, OR, for Defendant BV CenterCal, LLC.

Steven A. Kraemer, Mark C. Sherman, Hoffman Hart & Wagner, LLP, Portland, OR, for Defendant CenterCal Properties, LLC.Lee S. Aronson, Schulte Anderson Downes Aronson Bittner, PC, Portland, OR, for Defendant IPC International Corporation.David C. Lewis, Miller & Wagner, LLP, Portland, OR, for Defendants City of Tualatin, Oregon and Brad King.

ORDER

HERNANDEZ, District Judge:

Magistrate Judge John V. Acosta issued a Findings and Recommendation (doc. # 99) on August 3, 2011, in which he recommends that I grant the motions for summary judgment (doc. # 29 and # 33) filed by CenterCal Properties, LLC and BV CenterCal, LLC, respectively. The Magistrate Judge also issued a Findings and Recommendation (doc. # 100) the same day, August 3, 2011, in which he recommends that I grant the motion for summary judgments (doc. # 40) filed by IPC International Corporation. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b).

Because no objections to the Magistrate Judge's Findings and Recommendations were timely filed, I am relieved of my obligation to review the record de novo. United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003); see also United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir.1988) ( de novo review required only for portions of Magistrate Judge's report to which objections have been made). Having reviewed the legal principles de novo, I find no error.

CONCLUSION

The court ADOPTS the Magistrate Judge's Findings and Recommendations (doc. # 99 and # 100). Accordingly, Defendants' motions for summary judgment (doc. # 29, # 33, and # 40) are GRANTED.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

ACOSTA, United States Magistrate Judge:

Findings and Recommendation

This action revolves around a physical confrontation which occurred at Bridgeport Village, a shopping mall located in Tigard, Oregon. The plaintiffs, Jeffrey Giulio (“Jeffrey”), who appears in his individual capacity as well as in the capacity of conservator for his minor son, T.G. (collectively “Plaintiffs”), allege that defendants BV CenterCal, LLC (“BV CenterCal”), the owner of Bridgeport Village, and CenterCal Properties (“CenterCal”), the property management firm hired by BV CenterCal to manage Bridgeport Village (collectively “Defendants”), violated their civil rights by encouraging the City of Tualatin to arrest and charge them with criminal violations in retaliation for voicing concerns about customer safety at Bridgeport Village to a television reporter. Additionally, Plaintiffs assert claims against Defendants for negligence and intentional infliction of severe emotional distress. Defendants ¹ seek summary judgment on all three claims.

The court finds that Defendants were not state actors under Section 1983, did not intentionally engage in socially intolerable conduct which resulted in emotional distress to Plaintiffs, and did not owe Plaintiffs a heightened duty of care. Accordingly, Defendants are entitled to summary judgment on Plaintiffs' First Claim for Relief for constitutional violations brought under 42 U.S.C. § 1983, Second Claim for Relief for intentional infliction of emotional distress, and Fifth Claim for Relief for emotional damages based on negligent conduct.

Preliminary Procedural Matters

At oral argument on Defendants' motions for summary judgment, Plaintiffs moved to reopen the depositions of Tualatin Police Chief Kent Barker and Captain Brad King to inquire into the reasons for Captain King's termination in July 2010, specifically with regard to Captain King's truthfulness, and for leave to supplement their opposition based on relevant evidence obtained in the depositions. This court granted the oral motion. Plaintiffs filed excerpts of the reopened depositions, as well as supplemental briefing based on those excerpts, in opposition to Defendants' motions for summary judgment. Defendants responded to the new evidence and arguments. All relevant arguments and admissible evidence, both initial and supplemental, have been considered by the court and are addressed in this Findings and Recommendation.

I. Request to Strike Plaintiffs' Concise Statement

Local Rule 56–1(d) provides that “[u]nless approved by the Court in advance, neither the concise statement nor any response or reply thereto, may be longer than five (5) pages. Statements in excess of that amount may be stricken by the Court with direction to counsel to further condense the statement.” Plaintiffs' response to CenterCal's concise statement of facts is six and a half pages in length and Plaintiffs did not seek leave of court to file the overlength statement. CenterCal asks the court to strike the portions of Plaintiffs' response that exceed the limit. The court notes that CenterCal also violated the rule by filing a six-page concise statement without prior court approval and that had Plaintiffs utilized the same size type as CenterCal, condensed the caption, and fully justified the concise statement, Plaintiffs' statement would not have been dramatically longer than CenterCal's. The court denies CenterCal's request and will consider Plaintiffs' response to CenterCal's concise statement of facts in its entirety.

II. Deposition Excerpts

Plaintiffs have offered a number of deposition excerpts in their opposition and supplement materials. The excerpts are identified by Plaintiffs' counsel in her declarations as true and accurate copies of excerpts from the various depositions. The deposition excerpts attached to the Lain declarations do not contain any identifying features independent of this description.

The evidence presented in support of or in opposition to a motion for summary judgment must be based on personal knowledge, properly authenticated, and admissible under the Federal Rules of Evidence. Fed.R.Civ.P. 56(c). “The requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). Evidence that is not properly authenticated will not be considered by the court when reviewing a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002).

In Orr, the Ninth Circuit addressed the requirements for authenticating a deposition:

A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent. See Fed.R.Evid. 901(b); Fed.R.Civ.P. 56(e) & 30(f)(1). Ordinarily, this would be accomplished by attaching the cover page of the deposition and the reporter's certification to every deposition extract submitted. It is insufficient for a party to submit, without more, an affidavit from her counsel identifying the names of the deponent, the reporter, and the action and stating that the deposition is a “true and correct copy.” Such an affidavit lacks foundation even if the affiant-counsel were present at the deposition.

Orr, 285 F.3d at 774 (footnote and case citations omitted). The deposition excerpts offered by Plaintiffs are not accompanied by either a cover page or a reporter's certification and have no identifying information. It is impossible to tell from the excerpts who is being deposed, who is asking the questions, when the deposition occurred, or whether the deposition relates to this action. Plaintiffs' deposition excerpts are not properly authenticated under any reasonable interpretation of the rule. Defendants, however, have offered and authenticated excerpts from the depositions of T.G., Jeffrey, Keri Giulio, and Robert Dye, thereby providing the basis for their admissibility. In Orr, the Ninth Circuit held that:

when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity.

Orr, 285 F.3d at 776. The deposition excerpts offered by Defendants include pages 19 and 66 of T.G.'s deposition, pages 14, 53, and 82 of Jeffrey's deposition, pages 4 and 29 of Keri's deposition, and page 20 of Dye's deposition, which are pages also offered by Plaintiffs. It is evident from comparing these pages that they contain identical content and are from the same deposition. Accordingly, these pages are properly authenticated through Defendants' submissions and will be considered by the court. However, the pages offered by Plaintiffs but not also offered by Defendants are not properly authenticated under Orr. Consistent with its practice in prior cases in which a party has failed to properly authenticate deposition excerpts, including Chao v. Westside Drywall, 709 F.Supp.2d 1037 (D.Or.2010), and Kesey v. Francis, No. CV. 06–540–AC, 2009 WL 909530 (D.Or. April 3, 2009), this courts strikes the pages the depositions excerpts offered only by Plaintiffs and will not consider them in this Findings and Recommendation.

III. Summarized Testimony

Plaintiffs' counsel also summarizes testimony given by Phillip Orth, an IPC International Corp. (“IPC”) security officer, and Ian Strombom, the IPC Sargent on duty the night of the incident,...