Judge: Erick L. Larsh, Case: 2020-01134895, Date: 2023-06-15 Tentative Ruling
RP’s evidentiary objections to MPs’ evidence in support of motion:
Jimenez Decl.
1. Overrule.
2. Overrule.
3. Overrule.
4. Overrule.
5. Overrule.
6. Overrule.
7. Sustain: lacks foundation.
8. Overrule.
9. Overrule.
10. Overrule.
11. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1528 [error to sustain evidentiary objection where “at least some portion of the proffered deposition testimony” was admissible].) Further, the statements by Osteen to Jimenez are offered to show the reasonableness of Jimenez’ reliance on statements by others regarding plaintiff’s accounting practices, not necessarily the truth of the matters stated.
12. Overrule. [Same as Objection No. 11.]
13. Overrule. [Same as Objection No. 11.]
14. Overrule. [Same as Objection No. 11.]
15. Overrule. [Same as Objection No. 11.]
16. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian, supra at 1528.)
17. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian, supra at 1528.)
Osteen Decl.
18. Overrule.
19. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian, supra at 1528.) Further, Osteen may properly offer her opinion as to plaintiff’s accounting practices.
20. Overrule. [Same as Objection No. 19.]
21. Overrule. [Same as Objection No. 19.]
22. Overrule. [Same as Objection No. 19.]
23. Overrule. [Same as Objection No. 19.]
24. Overrule. [Same as Objection No. 19.]
25. Overrule. [Same as Objection No. 19.]
26. Overrule. [Same as Objection No. 19.]
27. Overrule. [Same as Objection No. 19.]
28. Overrule. [Same as Objection No. 19.]
29. Overrule. [Same as Objection No. 19.]
30. Overrule. [Same as Objection No. 19.]
31. Overrule. [Same as Objection No. 19.]
32. Overrule. [Same as Objection No. 19.]
33. Overrule. [Same as Objection No. 19.]
34. Overrule. [Same as Objection No. 19.]
35. Overrule. [Same as Objection No. 19.]
36. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian, supra at 1528.)
37. Overrule.
38. Overrule.
39. Overrule.
40. Overrule.
41. Overrule.
42. Overrule.
43. Overrule.
Moser Decl.
44. Overrule.
45. Overrule.
46. Overrule.
Keegel Decl.
47. Overrule.
48. Overrule.
49. Overrule.
MPs’ evidentiary objections to RP’s Opp evidence:
M. Kinder Decl.
1. Overrule.
2. Overrule.
3. Overrule.
4. Overrule.
5. Overrule.
6. Overrule.
7. Overrule.
8. Sustain: lacks foundation, hearsay.
9. Overrule.
10. Overrule.
11. Sustain: hearsay.
12. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian, supra at 1528.)
13. Overrule.
14. Overrule.
15. Overrule.
16. Overrule.
17. Overrule.
18. Overrule.
19. Overrule.
20. Overrule.
21. Overrule.
22. Sustain: lacks foundation, lacks personal knowledge, improper legal conclusion.
23. Sustain: lacks foundation, lacks personal knowledge.
24. Sustain: lacks foundation, lacks personal knowledge.
25. Sustain: lacks foundation, lacks personal knowledge.
26. Sustain: lacks foundation, lacks personal knowledge.
27. Overrule.
28. Sustain: lacks personal knowledge.
29. Overrule.
30. Sustain: lacks foundation, lacks personal knowledge, improper legal conclusion.
31. Overrule.
32. Overrule.
33. [Omitted by MPs.]
34. Overrule.
35. Sustain: lacks foundation, lacks personal knowledge, improper legal conclusion.
36. Sustain: lacks foundation, lacks personal knowledge, improper legal conclusion.
37. Sustain: lacks foundation, lacks personal knowledge, improper legal conclusion.
38. Sustain: lacks foundation, lacks personal knowledge, improper legal conclusion.
39. Overrule.
40. Overrule.
41. Overrule.
42. Overrule.
43. Sustain: improper legal conclusion.
44. Sustain: lacks foundation, lacks personal knowledge.
45. Overrule.
46. Sustain: lacks foundation, lacks personal knowledge.
47. Overrule.
48. Sustain: lacks personal knowledge, speculative.
49. Sustain: lacks foundation, lacks personal knowledge, improper legal conclusion.
50. Sustain: improper legal conclusion.
51. Sustain: improper legal conclusion.
52. Sustain: improper legal conclusion.
53. Sustain: lacks foundation, lacks personal knowledge, improper legal conclusion.
54. Sustain: improper legal conclusion.
55. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian, supra at 1528.)
56. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian, supra at 1528.)
It should also be noted that plaintiff’s declaration includes significant argument, which is improper. “The proper place for argument is in points and authorities, not declarations.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3.) However, MPs did not raise this objection.
Maertz Decl.
57. Sustain: lacks foundation.
58. Sustain: lacks foundation.
59. Overrule.
60. Sustain: lacks foundation.
61. Sustain: lacks foundation, lacks personal knowledge.
62. Overrule.
63. Sustain: lacks personal knowledge, speculative.
64. Sustain: lacks personal knowledge, speculative.
65. Sustain: lacks personal knowledge, speculative.
66. Sustain: lacks personal knowledge, speculative.
67. Sustain: lacks personal knowledge, speculative.
68. Sustain: lacks foundation, lacks personal knowledge, speculative.
69. Sustain: lacks foundation, lacks personal knowledge, speculative.
70. Sustain: lacks foundation, lacks personal knowledge, speculative.
71. Sustain: lacks foundation, lacks personal knowledge, speculative.
72. Sustain: lacks foundation, lacks personal knowledge, speculative.
73. Sustain: lacks foundation, lacks personal knowledge, speculative, improper legal conclusion.
74. Sustain: lacks foundation, hearsay.
75. Sustain: lacks foundation, lacks personal knowledge, speculative.
76. Overrule. [That declarant “perceived that others in the audience” were “shocked by Jimenez’s allegations” could be attributed to the alleged prior financial improprieties and not necessarily as an “attack” on plaintiff’s reputation.]
77. Sustain: lacks personal knowledge, speculative, improper legal conclusion.
78. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian, supra at 1528.)
79. Sustain: lacks foundation, lacks personal knowledge, speculative.
80. Overrule. The entire portion objected to does not suffer from the defects asserted. (Ambriz v. Kelegian, supra at 1528.)
81. Overrule.
82. Sustain: hearsay.
83. Overrule.
84. Sustain: improper legal conclusion.
85. Sustain: lacks foundation, lacks personal knowledge, speculative.
86. Sustain: lacks foundation, lacks personal knowledge, speculative.
87. Sustain: lacks foundation, lacks personal knowledge, speculative.
88. Sustain: lacks foundation, lacks personal knowledge, speculative.
89. Sustain: lacks foundation, lacks personal knowledge, improper legal conclusion.
90. Sustain: lacks foundation, lacks personal knowledge, hearsay.
91. Sustain: lacks foundation, lacks personal knowledge, speculative, improper legal conclusion.
The Maertz Decl. also includes significant improper argument (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3; however, MPs did not raise this objection.
Osteen Deposition Transcript
92. Overrule.
93. Overrule.
94. Overrule.
95. Overrule.
Ex. 8 to Moser Depo: Overrule.
Defendants General Truck Drivers Office Food & Warehouse Local 952 and Eric Jimenez’s motion for summary judgment on Plaintiff Michelle Kinder’s Complaint, or in the alternative, summary adjudication of issues, is GRANTED in part and DENIED in part. (Code Civ. Proc., § 437c [authorizing motion].)
Summary judgment is DENIED, as Moving Parties have not shown that there is no triable issue as to any material fact and that they are entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
Summary adjudication is GRANTED as to Plaintiff’s second cause of action for defamation per quod. Moving Parties have met their initial burden of presenting evidence showing that Plaintiff cannot establish the essential element of special damages. (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Taus v. Loftus (2007) 40 Cal.4th 683, 720 [defamation elements]; Civ. Code, § 45a [“Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that [s]he has suffered special damage as a proximate result … Special damage is defined in Section 48a of this code”]; Civ. Code, § 48a, subd. (d)(2) [“’Special damages’ means all damages that plaintiff alleges and proves that he or she has suffered in respect to his or her property, business, trade, profession, or occupation, including the amounts of money the plaintiff alleges and proves he or she has expended as a result of the alleged libel, and no other”]; Moving Parties’ Separate Statement, Fact No. 169 [evidence that plaintiff has not suffered any loss of income, incurred medical expenses or incurred any other special damages].) Plaintiff has not met her shifted burden of presenting evidence sufficient to create a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2) [burden].) Plaintiff offers evidence of loss of reputation, shame, mortification and hurt feelings (Plaintiff’s Separate Statement, Response to Fact No. 169); however, these are general damages, not special damages. (Civ. Code 48a(d)(11 [“’General damages’ means damages for loss of reputation, shame, mortification, and hurt feelings”].)
The remainder of the motion is DENIED. Moving parties have provided evidence showing the existence of conditional privileges under Civ. Code, § 47, subd. (c), and/or 29 U.S.C., § 411, subd. (a)(2); however, plaintiff has presented sufficient evidence to create a triable issue of material fact as to whether defendants acted with malice. (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 915 [“The defendant has the initial burden of showing the allegedly defamatory statement was made on a privileged occasion, whereupon the burden shifts to the plaintiff to show the defendant made the statement with malice”]; Taus v. Loftus, supra at 721, citing Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413 [“The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights;” emphasis in original]; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723 [for purposes of the common interest privilege, “malice has been defined as ‘a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person’”]; Moving Parties’ Separate Statement, Fact Nos. 32-34, 62-67, 69, 70, 151-153, 75-78, 89, 107, 119, 127, 133-141, 150 [evidence that statements made during union meeting and posted on union Facebook page, without malice or ill will]; Plaintiff’s Separate Statement, Response to Fact No. 141, and Additional Fact Nos. 176, 177, 210, 282 [evidence of Jimenez’s ill will toward plaintiff].) Further, absent evidence that plaintiff is a public figure, which is the case here, she need only show malice under either formula, by a preponderance of the evidence. (Manguso v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 580-581 [jury instruction requiring plaintiff to show malice by “prov[ing] the defendants acted both out of hatred or ill will and without a good faith belief in the truth of the publication at the time the letter was written” was error].)
There are also triable issues as to whether at least one of the statements was true or substantially true. (Campanelli v. Regents (1996) 44 Cal.App.4th 572, 581–582 [truth as defense]; Moving Parties’ Separate Statement, Fact No. 149 [“Roughly more than $250,000 dollars went out in severance pay and banked vacation to past employees – draining the local[’]s treasury and leaving it broke and barely afloat”]; Plaintiff’s Separate Statement, Additional Fact Nos. 217 [evidence that after the severance and accrued vacation was paid, “Local 952 still had well over $700,000 in cash and cash equivalents (i.e., $268k savings, $100k general checking, $112k dues fund, $202k Cert. of Dep., $23k cash and special funds, etc.”].)
As to Moving Parties’ contention that the statements were not about plaintiff, they have not met their initial burden. (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1046 [defamation requires either an express statement against a plaintiff, or that the defendant refer to plaintiff by “clear implication”].) Moving Parties concede that one of the alleged defamatory statements specifically refers to the prior administration’s “bookkeeper” [singular]. (Moving Parties’ Separate Statement, Fact No. 149.) Moving Parties provide no evidence that any other Local 952 employee held this title, or performed bookkeeping duties, other than plaintiff. Moving Parties further admit that Jimenez referred to “the previous ‘bookkeeper.’” (Fact No. 147.) Further, Moving Parties’ Separate Statement refers to Plaintiff as “Local 952’s bookkeeper” [singular] (Fact No. 48, 50, 51), and Jimenez’s declaration refers to Plaintiff as “the” bookkeeper for Local 952. (Jimenez Decl., ¶ 16.) (See Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 185 [moving parties’ own evidence, and inferences therefrom, may disclose triable issues].)
As to Moving Parties’ contention that the statements were opinion and not fact, Moving Parties have not met their initial burden, as to at least one of the alleged statements, i.e. that “the bookkeeper”
(Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1271 [“The essential difference between a statement of fact and a statement of opinion is that a statement of fact implies a provably false factual assertion while a statement of opinion does not”]; Ringler Associates Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1181 [“there is no wholesale defamation exemption for anything that might be labeled an opinion … the dispositive question is whether a reasonable factfinder could conclude the published statements imply an assertion of defamatory fact; [i]f so, the defendant must prove the fact is true”]; Moving Parties’ Separate Statement, Fact No. 149 [“the bookkeeper was … actually making up numbers so they would balance on the financial reports”].)
Finally, as to plaintiff’s third cause of action for false light invasion of privacy, and her claim for punitive damages, Moving Parties only argue that they fail for the same reasons as argued elsewhere in the moving papers. (Moving papers at 20:1-14; Moving Parties’ Separate Statement, Fact Nos. 171, 172.) Accordingly, the motion is also denied as to the third cause of action and punitive damages, for the same reasons discussed above.
Moving Parties shall give notice.