17-CIV-02443 MD ANIS UZZAMAN, ET AL. VS. BRANDON K. HILL, ET AL.

MD ANIS UZZAMAN BRANDON K. HILL
TIMOTHY B BRODERICK SEAN TAMURA-SATO

DEFENDANT BRANDON HILL’S MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:

Defendant Brandon Hill’s Motion for Summary Judgment, filed 6-17-19, is DENIED. Code Civ. Proc. § 437c. Defendant’s alternative Motion for Summary Adjudication is also DENIED.

A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause(s) of action cannot be established, or there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). On summary judgment or adjudication, the court considers all of the evidence and all of the inferences reasonably drawn therefrom, and views such evidence and inferences in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-856. Any doubts as to the propriety of granting the motion are normally resolved in favor of the party opposing the motion. Id. Here, Defendant did not meet his initial burden as to any of the three asserted causes of action.

First, Defendant’s supporting Separate Statement, and the evidence cited therein, does not demonstrate that any element of the asserted claim cannot be established, or that there is a complete defense to any of the asserted claims. Indeed, Defendant’s argument is fairly narrow. The motion does not appear to challenge Plaintiffs’ allegations that Hill wrote the article, that the article refers to Plaintiffs (although they are not expressly named), or that publication of the article has caused damage to Plaintiffs. In fact, after filing the motion, Hill appears to have conceded several of these issues in deposition. 821-19 Saleen Decl., Ex. A. Instead, the motion argues (1) the article contains only opinion/hyperbole, not factual assertions, and (2) the article is not reasonably susceptible to a defamatory interpretation. But nothing in Defendant’s Separate Statement establishes either of these points. Even if every fact in the Separate Statement were undisputed, the Separate Statement would not establish that the article contains no factual assertions, or is not reasonably susceptible to a defamatory interpretation. For this reason alone, the motion is denied.

Further, even if the Separate Statement included facts stating that the article consists solely of opinion/hyperbole and is not susceptible to a defamatory interpretation, there would still be triable issues on both of these points. Based on the certified translation proffered by Plaintiffs, the article appears to contain numerous factual assertions that can be proven true or false. See CACI 1707; CACI 1731; 8-21-19 Leslie Decl., Ex. B. On its face, the article appears to have been written by a woman who claims to have been “sexually taken advantage of” by a Silicon Valley VC. Leslie Decl., Ex. B. And it describes in detail, in a very serious tone, alleged interactions between them. Id. Defendant’s characterization of the article as mere opinion is not supported by the cited case law. And Defendant’s arguments are undermined by evidence suggesting that potential investors who read the article in fact viewed it as making factual assertions about Plaintiffs, and chose not to do business with Plaintiffs because of those allegations. See 8-21-19 Traidman Decl.; 8-21-19 Kinui Decl. Further, Hill’s arguments appear to directly contradict his own prior statements to his colleagues in 2017, when he personally characterized the article as relating an incident in which a Silicon Valley VC (Plaintiff Uzzaman) “sexually harassed” the female author. 8-21-19 Saleen Decl. (Hill Dep. Tr. at 91, and Ex. 7). Indeed, Hill told his colleagues that after reading the article’s accusations, Hill was “worried for [his] friend [Uzzaman].” Id. Presumably, Hill would have had no reason to worry if the article made no factual allegations, and could not have been viewed in a defamatory manner.

The parties’ experts have differing views of the article’s correct translation. Defendant’s Reply brief asks the Court to disregard Plaintiffs’ translation on grounds it is incorrect. Reply at 1-3 (disputing whether a Japanese word/phrase in the article means the two persons “embraced” or had “sexual intercourse”). The Court cannot resolve this disagreement on summary judgment. And even if it could, doing so would not lead to a different result. Even if only Defendant’s translation were considered, for the reasons stated above, the Court would still find a triable issue exists as to whether the article asserts facts and is susceptible to a defamatory interpretation.

Nor is there any basis to grant the motion as to Plaintiff Fenox based on Hill’s contention that the majority of the article’s allegations are directed towards Uzzaman personally rather than the company. As noted in Plaintiffs’ Opposition at 12-13, the article references Uzzaman’s company (Fenox) and a potential business transaction between Fenox and the purported female author. It could reasonably have been understood to defame both Uzzaman and the company. And as noted, Plaintiffs offer evidence suggesting that publication of the article has damaged Fenox. 8-21-19 Traidman Decl.; 821-19 Kinui Decl.

Defendant’s 8-30-19 Objections to Evidence are ruled upon as follows:
 Obj. Nos. 1-4. OVERRULED.  Obj. No. 5. SUSTAINED. Evid. Code §§ 403; 702.  Obj. Nos. 6-19. OVERRULED.  Obj. No. 20. SUSTAINED. The article speaks for itself.  Obj. Nos. 21-55. OVERRULED.  Obj. No. 56. SUSTAINED. The article speaks for itself.  Obj. Nos. 57-58 OVERRULED.