Judge: Gail Killefer, Case: 19STCV19669, Date: 2022-08-10 Tentative Ruling
Case Number: 19STCV19669 Hearing Date: August 10, 2022 Dept: 37
HEARING DATE: August 10, 2022
CASE NUMBER: 19STCV19669
CASE NAME: Michael Eisenberg v. Chad McQueen, et al.
MOVING PARTIES: Defendants, Chad McQueen and City
National Bank, as Trustee of the Terry McQueen Testamentary Trust
RESPONDING PARTY: Plaintiff, Michael Eisenberg
TRIAL DATE: January 10, 2023
PROOF
OF SERVICE: OK
MOTION: McQueen Defendants’
Motion for Summary Judgment
OPPOSITION: July 27, 2022
REPLY: August 5, 2022
TENTATIVE: McQueen Defendants’
motion is denied. McQueen Defendants are to give notice.
Background
This action arises out of a letter sent on June 5, 2018, on
behalf of Chad McQueen (“McQueen”) and the Estate of actor Steve McQueen,
disputing the origins of a Rolex watch. Michael Eisenberg (“Plaintiff”) alleges
that he and non-party Phillips Auction (“Phillips”) entered into an agreement
on or about August 2, 2017, wherein Phillips agreed to auction off a Rolex
Submariner watch (the “Watch”) owned by Plaintiff which had allegedly been
purchased by Steve McQueen, engraved, and given to his then stuntman, Loren Janes.
McQueen’s letter, which asserted that Steve McQueen did not own the watch and
never gifted it to Loren Janes, requested that Phillips withdraw the auction.
Plaintiff alleges that McQueen’s conduct caused Phillips to
eventually withdraw the Watch from auction, causing the Watch to be devalued
and any potential sale to fall through. Plaintiff
filed the operative Complaint on June 5, 2019, alleging four causes of action:
(1) tortious interference with contract; (2) intentional interference with
economic advantage; (3) negligent interference with prospective economic
advantage; and (4) trade libel.
On December 20, 2019, McQueen filed a Cross-Complaint
against Phillips Auctioneers, LLC. According
to the Cross-Complaint, Phillips negligently and recklessly began advertising
the watch on August 2, 2017, without verification of the Watch’s provenance.
The Cross-Complaint alleges five causes of action: (1) equitable indemnity on a
comparative fault basis; (2) total indemnity; (3) apportionment of fault; (4)
declaratory relief; and (5) negligence.
The Second Amended Cross-Complainant. (“SACC”), which includes
City National Bank as Trustee of the Terry McQueen Testamentary Trust as a
Cross-Complainant, was filed on September 22, 2021. The SACC alleges ten causes of action: (1)
equitable indemnity on a comparative fault basis; (2) total indemnity; (3)
apportionment of fault; (4) declaratory relief; (5) negligence; (6) negligent
misrepresentation; (7) intentional misrepresentation; (8) false advertisement;
and (9) violation of Civil Code § 3344.1.
McQueen
and City National Bank (“McQueen Defendants”) now move for summary judgment or,
in the alternative, summary adjudication on all of the following issues:
1. Plaintiff’s
first cause of action for tortious interference with contract is without merit
because no triable issues of material fact exist;
2. Plaintiff’s
second cause of action for intentional interference with prospective economic
advantage is without merit because no triable issues of material fact exist;
3. Plaintiff’s
third cause of action for negligent interference with prospective economic
advantage is without merit because no triable issues of material fact exist; and
4. Plaintiff’s
fourth cause of action for trade libel is without merit because no triable
issues of material fact exist.
Request for Judicial
Notice
McQueen Defendants request
untimely and late judicial notice of the following in reply in support of their
motion:
McQueen Defendants have failed
to authenticate the documents or explain them to be proper matters for judicial
notice. Aside from these failures, McQueen Defendants have failed to attach the
documents to the request altogether. As
these are proper matters for judicial notice and can be verified, however, the
request is granted.
Plaintiff’s Objections
Overruled: 9-10, 17-18
Sustained in part: 11
Sustained: All remaining objections.
McQueen Defendants’
Objections
In defiance of Cal. Rules of
Court Rule 3.1354, McQueen Defendants have submitted evidentiary objections
without following one of the two allowed formats—namely, Cross-Defendants fail
to accurately refer to each objection individually. Nonetheless, the court
rules on the McQueen Defendants’ objections as follows:
Overruled: 2
Sustained in part: 5
Sustained: All remaining objections.
Discussion
I.
Legal Authority
“The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties' pleadings in order to
determine whether, despite their allegations, trial is in fact necessary to
resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) CCP § 437c(a) provides:
A party may
move for summary judgment in any action or proceeding if it is contended that
the action has no merit or that there is no defense to the action or
proceeding. The motion may be made at any time after 60 days have elapsed
since the general appearance in the action or proceeding of each party against
whom the motion is directed or at any earlier time after the general appearance
that the court, with or without notice and upon good cause shown, may
direct…. The motion shall be heard no later than 30 days before the date
of trial, unless the court for good cause orders otherwise. The filing of
the motion shall not extend the time within which a party must otherwise file a
responsive pleading.
A motion for summary judgment may be granted “if all the
papers submitted show that there is no triable issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
(CCP § 437c(c).)
“The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which
judicial notice shall or may be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material
facts stated shall be followed by a reference to the supporting evidence.
The failure to comply with this requirement of a separate statement may in the
court’s discretion constitute a sufficient ground for denial of the
motion.” (CCP § 437c(b)(1); see also Cal. Rules of Court, rule
3.1350(c)(2) & (d).)
“A party may move for
summary adjudication as to one or more causes of action within an action, one
or more affirmative defenses, one or more claims for damages, or one or more
issues of duty, if the party contends that the cause of action has no merit,
that there is no affirmative defense to the cause of action, that there is no
merit to an affirmative defense as to any cause of action, that there is no
merit to a claim for damages, as specified in Section 3294 of the Civil Code,
or that one or more defendants either owed or did not owe a duty to the
plaintiff or plaintiffs.” (CCP § 437c(f)(1).)
“Notwithstanding subdivision (f), a party may move for
summary adjudication of a legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of action,
affirmative defense, or issue of duty pursuant to this subdivision.” (CCP §
437c(t).)
In analyzing motions for summary judgment, courts must
apply a three-step analysis: “(1) identify the issues framed by the pleadings;
(2) determine whether the moving party has negated the opponent's claims; and
(3) determine whether the opposition has demonstrated the existence of a
triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294 (Hinesley).) Pursuant to CCP § 437c(p)(2):
A defendant
or cross-defendant has met his or her burden of showing that a cause of action
has no merit if the party has shown that one or more elements of the cause of
action, even if not separately pleaded, cannot be established, or that there is
a complete defense to the cause of action. Once the defendant or
cross-defendant has met that burden, the burden shifts to the plaintiff or
cross-complainant to show that a triable issue of one or more material facts
exists as to the cause of action or a defense thereto. The plaintiff or
cross-complainant shall not rely upon the allegations or denials of its
pleadings to show that a triable issue of material fact exists but, instead,
shall set forth the specific facts showing that a triable issue of material
fact exists as to the cause of action or a defense thereto.
The court must “view the evidence in the light most
favorable to the opposing party and accept all inferences reasonably drawn
therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”].) A
motion for summary judgment must be denied where the moving party’s evidence
does not prove all material facts, even in the absence of any opposition (Leyva
v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak
(Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384,
387).
II.
Factual Summary
As noted above, this matter
regards an agreement to auction off the Watch, which was alleged to have been
purchased by Steve McQueen and given to stuntman Loren Janes (“Janes”) with an
inscription on the case back stating “TO LOREN, THE BEST DAMN STUNTMAN IN THE
WORLD. STEVE.” (UMF 1.) Plaintiff had
purchased the Watch from Loren Janes’ daughter, Erika Janes, in 2017. (Id.)
On August 2, 2017, Plaintiff entered
into a contract with Phillips to auction off the Watch. (Id.)
According to Plaintiff,
Steve McQueen gifted the Watch to Janes in or around 1966. (UMF 7.) On June 4,
2018, Phillips published a press release advertising the Watch for auction sale.
(MF 2.) The Watch was to be sold with a letter of provenance signed by Janes,
dated February 22, 2017, which Plaintiff contends verified the history of the Watch
and Janes’ history as Steve McQueen’s stuntman. (MF 3.)
While Plaintiff contends
Erika Janes had the belief that “McQueen had worn the watch before” McQueen
gifted it to her father, McQueen Defendants contend that Steve McQueen had
never worn the Watch and Erika Janes did not have personal knowledge of Steve
McQueen wearing the Watch or engraving the Watch for her father. (MF 4.) Further, Plaintiff contends that by further
investigation, he confirmed the Watch’s provenance as McQueen’s former watch.
(MF 5.) McQueen Defendants refute these claims. (MF 5.)
Plaintiff contends that on
June 5, 2018, the McQueen estate sent a letter to Phillips, through their
counsel Barens, representing that the Watch’s provenance was indeed false. (PMF
6.) Plaintiff further contends that the McQueen estate accused Phillips of fraudulent
practices and “threatened legal action” against Phillips if it did not withdraw
the Watch from auction. (PMF 6.) Further,
McQueen remains involved in the licensing and trademarking of Steve McQueen
related memorabilia (PUMF 1), and “interacts with auction houses and monitors
the news for high profile sales involving Steve McQueen related memorabilia.”
(PUMF 2.)
III.
Analysis
a.
First Cause of
Action: Tortious/Intentional Interference with Contractual Relations
“To recover in
tort for intentional interference with the performance of a contract, a
plaintiff must prove: (1) a valid contract between plaintiff and another party;
(2) defendant's knowledge of the contract; (3) defendant's intentional acts
designed to induce a breach or disruption of the contractual relationship; (4)
actual breach or disruption of the contractual relationship; and (5) resulting
damage. [Citation.]’ ” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd.
(1994) 7 Cal.4th 503, 514, fn. 5.) “[T]he same wrongful act may
constitute both a breach of contract and an invasion of an interest protected
by the law of torts.” (North American Chemical Co. v. Superior Court (1997)
59 Cal.App.4th 764, 774.) However, “conduct amounting to a breach of
contract becomes tortious only when it also violates a duty independent
of the contract arising from principles of tort law.” (Erlich v.
Menezes (1999) 21 Cal.4th
543, 551; Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7
Cal.4th 503, 515 [“ ‘ “An omission to perform a contract obligation is never a
tort, unless that omission is also an omission of a legal duty” ’ ”].)
“The elements which a
plaintiff must plead to state the cause of action for intentional interference
with contractual relations are (1) a valid contract between plaintiff and a
third party; (2) defendant’s knowledge of this contract; (3) defendant’s
intentional acts designed to induce a breach or disruption of the contractual
relationship; (4) actual breach or disruption of the contractual relationship;
and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns
& Co. (1990) 50 Cal.3d 1118, 1126 (internal citations omitted).)
“Because interference with
an existing contract receives greater solicitude than does interference with prospective
economic advantage, it is not necessary that the defendant’s conduct be
wrongful apart from the interference with the contract itself.” (Quelimane
Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55 (internal
citations omitted).)
McQueen Defendants contend the first
cause of action is without merit as there are no triable issues of material
fact regarding their knowledge of the contract between Plaintiff and Phillips,
and did not act with the design to induce breach or disruption of the agreement.
(Motion, 5-6.)
McQueen Defendants first contend that they
were not aware of the contract between Plaintiff and Phillips until “Phillips
published a press release advertising the [Rolex] for auction sale.” (Motion, 6.)
McQueen Defendants argue Plaintiff presented no evidence to establish that
McQueen Defendants knew about the contract before the press release and their
subsequent June 5, 2018 cease and desist letter. They assert also that their
“cease and desist letter of June 5, 2018, is addressed solely to Phillips.” (Id.)
McQueen Defendants also contend that
the first cause of action is without merit as Plaintiff himself relied on his
assumptions and representations from Erika in purchasing the watch. (Motion, 5.)
McQueen Defendants argue that Plaintiff did not contact the McQueen estate, or
other stuntmen who worked with Janes, in his efforts to authenticate the Watch’s
provenance. (Id.) They allege the “aforesaid conduct on Plaintiff’s part
could not have (and did not) placed [sic] the McQueen Defendants on
notice of a potential sale via auction of the Watch.” (Motion, 6-7.) As such,
the McQueen Defendants contend their conduct could not have been designed to
intentionally disrupt an “unknown contract” between Plaintiff and Phillips. (Id.)
In opposition, Plaintiff disputes several factual claims
made by McQueen Defendants. (Opposition, 11-12.) Plaintiff relies on Ramona
Manor Convalescent Hosp. v. Care Enters. (1986) 177 Cal.App.3d 1120, 1133,
for the contention that “courts have imputed knowledge of a contractual
relationship to a defendant even where the defendant was unaware of the
plaintiff ‘by name’ at all.” (Id.) Plaintiff thus points out that the
June 4, 2018, Phillips press release clearly outlined that the Watch was on
consignment and thus “it disclosed [the terms and identity] at least ‘in some
manner’ to McQueen sufficiently enough to find at least a ‘reasonable
inference’ of his knowledge.” (Opposition, 12.) Further, Plaintiff contends
that since McQueen Defendants are “a hundred percent involved” in the transacting
of Steve McQueen memorabilia, there could be an inference that McQueen was
aware of the consignment agreement before making the June 5, 2018 letter. (Id.)
Plaintiff also explains McQueen
Defendants’ reliance on Ramona Manor is misplaced as the court in Ramona
Manor “affirmed a holdover lessee’s liability for intentional interference
with the plaintiff’s sublease even though the lessee ‘lacked knowledge of the
[plaintiff’s] name or identity’ until at least six months after its alleged
interference. (Opp., 13; citing Ramona Manor, supra, 177 Cal.App.3d at
1132.)
Plaintiff contends that in the
alternative, “McQueen continued interfering with the contractual relationship
after specifically learning that Eisenberg and Phillips had entered into such a
relationship.” (Opp., 13-14.) Plaintiff asserts,
“[d]espite this ‘continuing’ obligation
to market and sell the McQueen Watch, McQueen interfered with the contractual
relationship by continuously asserting the falsity of the McQueen Watch’s
provenance even after he indisputably learned of the Consignment Agreement and
the fact that Eisenberg was a party thereto. ... Specifically, following
Phillips’ receipt of the June 5th Letter, McQueen continued to represent – and
refused to withdraw his position – that he “confirmed” the falsity of the
McQueen Watch’s provenance notwithstanding Barens’ email communications with
both Eisenberg and Phillips’ counsel, in which Eisenberg was referred to by
name as “the consignor” of the McQueen Watch.” (Opp., 14.)
Thus, Plaintiff contends “even if McQueen lacked knowledge
of the Eisenberg and Phillips’ contractual relationship at the time of the June
5th Letter (he did not), that lack of knowledge is immaterial for purposes of
summary judgment since he continued to interfere with the relationship even
after he acquired such knowledge by, among other things, directly communicating
(through counsel) with Eisenberg about his consignment of the McQueen Watch to
Phillips.” (Opp., 14-15; relying on Jenni Rivera Enters., LLC v. Latin World
Ent. Holdings, Inc. (2019) 36 Cal.App.5th 766, 783-9.)
In reply, McQueen Defendants simply reiterate “McQueen
Defendants were not privy to that contract, were never consulted by Plaintiff
about any impending auction sale of the Watch, nor knew of any possibility that
the Watch would surface on the auction market because of its fabricated history
identified in the letter of provenance.” (Reply, 2-3.) However, the reply never
addresses Plaintiff’s contentions about McQueen’s conduct after the Phillips
press release on June 4, 2018.
Here, the parties heavily dispute
the sequence of events, the representations made, the knowledge of each party
before and after making such representations and provide the court with
competing circumstances. Whether the McQueen Defendants knew of the consignment
agreement, whether the McQueen Defendants continued making representations of
the falsity of the Watch’s provenance after the press release, and whether
McQueen Defendants made those representations to disrupt the contractual
agreement are all factual disputes that McQueen Defendants have not shown to be
without merit. Thus, in viewing the evidence in a light most favorable to the
nonmoving party, the court finds several triable issues of material fact exist
regarding the first cause of action, further evinced by the numerous disputed
factual allegations as discussed above.
For these reasons, McQueen Defendants’ motion is denied with
respect to the first cause of action.
b.
Second and Third Causes
of Action: Intentional & Negligent Interference with Prospective Economic
Advantage
“Intentional
interference with prospective economic advantage has five elements:(1) the
existence, between the plaintiff and some third party of an economic
relationship that contains the probability of future economic benefit to the
plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally
wrongful acts designed to disrupt the relationship; (4) actual disruption of
the relationship; and (5) economic harm proximately caused by the defendant’s
action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc.
(2017) 2Cal.5th 505, 512.)
‘[A]n act is independently
wrongful if it is unlawful, that is, if it is proscribed by some
constitutional, statutory, regulatory, common law, or other determinable legal
standard.’ ‘[A]n act must be wrongful by some legal measure, rather than merely
a product of an improper, but lawful, purpose or motive.’ ” (San Jose
Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544-1545
(internal citations omitted).)
“The elements of
negligent interference with contract or prospective economic advantage are (1)
the existence of a valid contractual relationship or other economic
relationship between the plaintiff and a third party containing the probability
of future economic benefit to the plaintiff; (2) the defendant’s knowledge
(actual or construed) of the relationship; (3) the defendant’s knowledge
(actual or construed) that the relationship would be disrupted if the defendant
failed to act with reasonable care; (4) the defendant’s failure to act with
reasonable care; (5) actual disruption of the relationship; and (6) resulting
economic harm.” (Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th
827, 844 fn. 5.) “The tort of negligent interreference with
economic relationship arises only when the defendant owes the plaintiff a duty
of care.” (Stolz v. Wong Communications Limited Partnership (1994)
25 Cal.App.4th 1811, 1825, italics in original.) “For negligent
interference, a defendant’s conduct is blameworthy only if it was independently
wrongful apart from the interference itself.” (Lange v. TIG Ins.
Co. (1998) 68 Cal.App.4th
1179, 1185, italics added.) Further, actions permissible under a
contractual agreement are not considered “independently wrongful.” (Id.,
at pp. 1187-1188 ["[h]ere, TIG merely exercised its contractual right of
termination. Apart from the disruption caused by terminating EVE, TIG did
not interfere with the respondents’ business. Thus, no independently
wrongful conduct occurred”].)
Here, McQueen
Defendants again contend they had no prior knowledge of an agreement between
Plaintiff and Phillips. (Motion, 7-8.) McQueen Defendants also again contend
that the June 5, 2018 cease and desist letter was not a wrongful act, and
further dispute the provenance of the Watch as part of their contention.
(Motion, 8-9.)
In opposition, Plaintiff contends a reasonable inference
exists that McQueen did have knowledge of Plaintiff’s contractual agreement
with Phillips. (Opp., 15-16.) Plaintiff again contends McQueen Defendants
continued with their wrongful conduct even after the Phillips press release. (Opp., 16.) Lastly, Plaintiff contends McQueen
Defendants’ continued “confirming” of the falsity of the Watch’s provenance
amounted to a wrongful act. (Opp., 17-19.)
In Reply, McQueen Defendants reiterate their prior
contentions and conclude “[t]he undisputed evidence shows the McQueen
Defendants’ cease and desist letter disputing the provenance attributed by
Loren Janes, and by purchasing the Watch, Plaintiff, was not wrongful.” (Reply,
3-4.)
The court has already found triable issues of material fact
concerning McQueen Defendants’ knowledge of the contractual agreement. Viewing the evidence in a light most
favorable to the nonmoving party, triable issues of material fact remain as to McQueen
Defendants’ knowledge of the agreement before the cease-and-desist letter,
McQueen Defendants’ conduct after knowledge of the agreement, and as to whether
McQueen Defendants engaged in wrongful conduct to disrupt the agreement.
For these reasons, McQueen Defendants’ motion is denied as
to the second and third causes of action.
c.
Fourth Cause of
Action: Trade Libel
“The tort of defamation
‘involves (a) a publication that is (b) false, (c) defamatory, and (d)
unprivileged, and that (e) has a natural tendency to injure or that causes
special damage.’ ”¿ (Taus¿v. Loftus¿(2007) 40 Cal.4th 683, 720), implicitly
overruled on unrelated grounds as recognized in¿Burrill v. Nair¿(2013)
217 Cal.App.4th 357, 380.)¿¿“To prevail on a claim¿for defamation, plaintiff
must show four elements: that defendants published the statements; that the
statements were about plaintiff; that they were false; and that defendants
failed to use reasonable care to determine the truth or falsity.”¿ (Hecimovich¿v.¿Encinal¿School
Parent Teacher Org.¿(2012) 203 Cal.App.4th 450, 470.)¿¿¿
Defamation has two
forms—libel and slander.¿ (Civ. Code, § 44.)¿ “Libel is a false and
unprivileged publication by writing, printing¿…¿which¿[in relevant
part]¿exposes any person to hatred, contempt, ridicule, or obloquy, …¿or which
has a tendency to injure him in his occupation.”¿ (Civ. Code, § 45.)¿¿“Slander
is a false and unprivileged publication, orally uttered, and also
communications by radio or any mechanical or other means which¿[in relevant
part]:¿…¿3. Tends directly to injure him in respect to his office, profession,
trade or business, either by imputing to him general disqualification in those
respects which the office or other occupation peculiarly requires, or by
imputing something with reference to his office, profession, trade, or business
that has a natural tendency to lessen its profits….”¿ (Civ. Code, § 46(3).)¿¿¿
McQueen Defendants contend that the fourth cause of action
is without merit also because “it is
undisputed that the exact opposite of a false statement was made by the McQueen
Defendants in their June 5, 2018, cease and desist letter... Plaintiff has
provided no evidence, and cannot, that Defendants’ conduct disputing the
history of the purported Steve McQueen Rolex Submariner was a false statement.”
(Motion, 11.)
In opposition, Plaintiff correctly points out Defendants’
“[m]otion does not specifically address any of the elements required to prove
trade libel, but appears to contend that the evidence cannot establish that
McQueen’s statement that he ‘confirmed that Mr. [Steve] McQueen never gifted
the watch in question to Loren Janes’ was false as a matter of fact, a central
element for trade libel.” (Opp., 19-20.) Plaintiff asserts that McQueen’s statements
that he “confirmed” the falsity of the Watch’s provenance were false in
operation since McQueen testified he “never confirmed” the Watch’s provenance.
(Id.)
In reply, McQueen Defendants repeat that the June 5, 2018,
letter was not a false statement. They
argue Plaintiff has not provided sufficient evidence showing McQueen’s statements
to be false. (Reply, 5.) “To the contrary, the evidence shows the McQueen
Defendants acted with reasonable care in truthfully disputing the provenance
attributed to the Watch.” (Id.) However, McQueen Defendants again fail
to address the remainder of the alleged conduct, namely McQueen’s confirming of
the falsity of the Watch’s provenance.
Here, while the falsity of these statements is normally a
matter of law, there remain several triable issues of material fact as to
whether McQueen Defendants made certain representations, whether McQueen verified
the falsity of the Watch’s provenance, and several other factual disputes as
they relate to the remaining elements for a trade libel claim. Thus, in viewing
the evidence in a light most favorable to the nonmoving party, McQueen Defendants
have failed to show the fourth cause of action to be void of merit.
For these reasons, McQueen Defendants’
motion is denied as to the fourth cause of action.
Conclusion
McQueen Defendants’ motion is
denied. McQueen Defendants are to give notice.