Case Name: Allen v. Brown, et al.
Case No.: 1-12-CV-233197

Defendant Connie Milburn (“Milburn”) moves for summary judgment or, in the alternative, summary adjudication against plaintiff Michael Allen.

As an initial matter, the Court declines to rule on Plaintiff’s objections to Milburn’s evidence based on Plaintiff’s failure to comply with California Rules of Court 3.1354(c).

The Court also declines to rule on Milburn’s evidentiary objections due to her failure to comply with California Rules of Court, rule 3.1354(c).

Milburn’s motion for summary judgment is GRANTED. After full consideration of the evidence, the separate statements and authorities submitted by each party, the Court finds that Milburn has met her initial burden of showing that one or more elements of Plaintiff’s claims cannot be established, or that there is a complete defense thereto.

With regard to first cause of action for defamation, Milburn has submitted evidence which establishes that she did not communicate to Griffin that Plaintiff fired anyone that he did not agree with. (See Declaration of Connie Milburn in Support of in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication (“Milburn Decll.”), ¶ 26; Declaration of Stephen Griffin in Support of Reply, ¶¶ 4, 5; Deposition of Stephen Griffin at 81:5-82:7.) Plaintiff fails to raise a triable issue relating to whether Milburn in fact made such a statement. Thus, the only remaining statement concerning Plaintiff which is attributable to Milburn is that Plaintiff was difficult to work with. This statement, however, qualifies as a non-actionable opinion that does not contain a provably false assertion of fact. Absent such a false factual assertion, there is no viable defamation claim. (See Letter Carriers v. Austin (1974) 418 U.S. 264, 283 [“[t]he sine qua non of recovery for defamation … is the existence of falsehood”].)

Even assuming, arguendo, that the aforementioned statement could be deemed a statement of fact, it cannot provide a basis for Plaintiff’s defamation claim because it is protected by the common interest privilege provided by Code of Civil Procedure section 47, subdivision (c). (See Milburn’s Separate Statement of Undisputed Material Facts (“UMF”) Nos. 33-54.) Plaintiff fails to raise a triable issue with regard to whether Milburn lacked reasonable grounds for believing the statement to be truthful and thus acted in reckless disregard of his rights. (See Code Civ. Proc., § 437c, subd. (p)(2).)

Milburn has also submitted evidence which demonstrates that she never conspired with any other party to defame Plaintiff. (See Milburn’s UMF Nos. 58, 61-64.) In opposition, Plaintiff fails to present evidence which demonstrates a triable issue of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff’s insistence of Milburn’s role in the purported conspiracy based solely on the phone records of various parties is speculative at best. A party opposing a motion for summary judgment cannot controvert the moving party’s declaration by evidence “based on speculation, imagination, guess work, or mere possibilities.” (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481.) Plaintiff provides no evidence that any of these phone conversations had anything to do with him specifically.

Finally, Milburn’s evidence establishes that Xlumena, Inc.’s decision to terminate Plaintiff’s employment preceded her statements to Griffin about Plaintiff, and in fact occurred at a point in time at which she had absolutely no knowledge of the Plaintiff. (See Milburn’s UMF Nos. 23-26, 30, 31, 32.) A necessary element of a cause of action for intentional interference with contract is actual disruption of a contractual relationship by the defendant’s actions. (See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) As the disruption of the contractual relationship between Plaintiff and Xlumena, Inc., i.e., the decision to terminate Plaintiff’s employment, took place before any act by Milburn, her conduct cannot qualify as the cause of this disruption. Thus, Milburn’s evidence establishes that one or more of the elements of the third cause of action cannot be established. Plaintiff fails to present any evidence which demonstrates a triable issue of material fact in this regard. (See Code Civ. Proc., § 437c, subd. (p)(2).)