Z.F., et al v. Ripon Unified School District, et al
Filing
294
ORDER signed by District Judge Troy L. Nunley on 3/31/2017 GRANTING 258 Motion for Summary Judgment in favor of the counterdefendants on the counterclaim for libel and the counterclaim for slander; DENYING the counterdefendants' Motion for Summary Judgment on all other grounds; ORDERING the parties to file a Joint Status Report within thirty (30) days. (Michel, G.)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
12
13
14
Z.F., a minor, by and through his parents
M.A.F. and J.F. and M.A.F. and J.F.
individually; L.H., and J.H., minors by and
through their parents J.A. and J.R.H. and
J.A. and J.R.H. individually; A.N, a minor
by and through his parents , G.N. and M.R.
and G.N. and M.R. individually,
15
16
17
18
19
20
21
22
23
24
25
26
27
No. 10-cv-00523-TLN-CKD
ORDER
Plaintiffs,
v.
RIPON UNIFIED SCHOOL DISTRICT,
RIPON UNIFIED SCHOOL DISTRICT
BOARD OF TRUSTEES, SAN JOAQUIN
COUNTRY OFFICE OF EDUCATION,
VALLEY MOUNTAIN REGIONAL
CENTER, MODESTO CITY SCHOOLS,
MODESTO CITY SCHOOLS BOARD OF
EDUCATION, RICHARD JACOBS,
Executive Director of VMRC, in his
official and individual capacity, TARA
SISEMORE-HESTER, Coordinator for
Autism Services for VMRC, in her official
and individual capacity, VIRGINIA
JOHNSON, Director of Modesto City
Schools SELPA, in her official and
individual capacity, SUE
SWARTZLANDER, Program Director for
Modesto City Schools, in her official and
individual capacity, and DOES 1-200 ,
Defendants.
28
1
1
2
VALLEY MOUNTAIN REGIONAL
CENTER, RICHARD JACOBS, and
TARA SISEMORE-HESTER,
3
Counterclaimants,
4
5
6
v.
M.A.F. and SPECIAL NEEDS
ADVOCATES FOR UNDERSTANDING,
Counterdefendants.
7
8
9
This matter is before the Court on Counterdefendants J.A.1 and M.A.F.’s (jointly
10
“Counterdefendants”) Motion for Summary Judgment or For Partial Summary Judgment (ECF
11
No. 258). Counterclaimants Valley Mountain Regional Center (“VMRC”), Tara Sisemore-
12
Hester, and Richard Jacobs (jointly “Counterclaimants”) oppose the motion. (ECF No. 263.)
13
Counterdefendants filed a reply. (ECF No. 276.) Having reviewed the briefing filed by both
14
parties and for the reasons stated below, the Court hereby GRANTS IN PART and DENIES IN
15
PART Counterdefendants’ Motion for Summary Judgment (ECF No. 258).
16
I.
17
Plaintiffs are three families suing four defendant agencies for disability services. (Compl.,
FACTUAL AND PROCEDURAL BACKGROUND
18
ECF No. 1.) Plaintiffs along with other families sued in an earlier action entitled Z.F., et al. v.
19
Ripon Unified School District, et al., 2:08-cv-00855-GEB-JFM. In that action, Plaintiffs brought
20
claims similar to the instant action. However, the Court dismissed the action because it found
21
some Plaintiffs had not exhausted their administrative remedies. Plaintiffs who had exhausted
22
their administrative remedies were permitted to refile in this action. Plaintiffs allege Defendants
23
violated the IDEA, Rehabilitation Act, Americans with Disabilities Act and the Unruh Act. (See
24
ECF No. 1.) During the pending litigation, Defendants VMRC, Tara Sisemore-Hester, and
25
Richard Jacobs allege that Counterdefendants made libelous and slanderous statements against
26
them in the form of interviews with reporters and postings to autism reform websites.2
27
1
28
Counterdefendants and Counterclaimants stipulated to the voluntary dismissal of the counterclaims against
J.A. (ECF No. 262.) Therefore, the Court will review the motion as it pertains solely to M.A.F.
2
The allegedly defamatory statements are lengthy and therefore the Court will address only the necessary
2
1
(Counterclaims, ECF No. 21.) Counterclaimants filed three counterclaims for libel, slander and
2
malicious prosecution arising from statements allegedly made by M.A.F. on the SNAFU website
3
and to the media. (See ECF No. 21.)
4
Counterdefendants filed a Motion to Dismiss (ECF No. 35) on August 2, 2010. In the
5
Court’s order dated February 2, 2011, the Court denied in part and granted in part
6
Counterdefendants’ motion. (ECF No. 111.) The Court dismissed the malicious prosecution
7
counterclaim and Counterclaimants did not reassert it. After completion of discovery,
8
Counterdefendants filed the instant motion for summary judgment on November 13, 2014. (ECF
9
No. 261.)
10
II.
11
Summary judgment is appropriate when the moving party demonstrates no genuine issue
STANDARD OF LAW
12
as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.
13
R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary
14
judgment practice, the moving party always bears the initial responsibility of informing the
15
district court of the basis of its motion, and identifying those portions of “the pleadings,
16
depositions, answers to interrogatories, and admissions on file together with affidavits, if any,”
17
which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
18
Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof
19
at trial on a dispositive issue, a summary judgment motion may properly be made in reliance
20
solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at
21
324 (internal quotations omitted). Indeed, summary judgment should be entered against a party
22
who does not make a showing sufficient to establish the existence of an element essential to that
23
party’s case, and on which that party will bear the burden of proof at trial.
24
If the moving party meets its initial responsibility, the burden then shifts to the opposing
25
party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.
26
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities
27
Serv. Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual
28
parts discussed below.
3
1
dispute, the opposing party may not rely upon the denials of its pleadings, but is required to
2
tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in
3
support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must
4
demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the
5
suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that
6
the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for
7
the nonmoving party. Id. at 251–52.
8
In the endeavor to establish the existence of a factual dispute, the opposing party need not
9
establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual
10
dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
11
trial.” First Nat’l Bank, 391 U.S. at 288–89. Thus, the “purpose of summary judgment is to
12
‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
13
trial.’” Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee’s note on 1963
14
amendments).
15
In resolving the summary judgment motion, the court examines the pleadings, depositions,
16
answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.
17
R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence
18
of the opposing party is to be believed, and all reasonable inferences that may be drawn from the
19
facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S.
20
at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s
21
obligation to produce a factual predicate from which the inference may be drawn. Richards v.
22
Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir.
23
1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party
24
“must do more than simply show that there is some metaphysical doubt as to the material facts.”
25
Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of
26
fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587.
27
///
28
///
4
1
III.
2
With the exception of two arguments, the Court does not reach the merits of
ANALYSIS
3
Counterdefendants’ remaining arguments. As discussed below, Counterdefendants or
4
Counterclaimants have failed to meet their burden on a motion for summary judgment.
5
Counterdefendants first argue that Counterclaimants Tara Sisemore-Hester and Richard Jacobs
6
are public officials and therefore must establish that the allegedly defamatory statements were
7
made with actual malice. Additionally, Counterdefendants’ statements could be construed as
8
asserting that VMRC is also a public official for the purposes of a defamation action. The Court
9
turns to this analysis before turning to the arguments brought against each individual
10
counterclaim.
11
A. Counterclaimants are not public officials
12
Counterdefendants assert that Counterclaimants are public officials and therefore must
13
demonstrate actual malice to succeed on their defamation claims. (ECF No. 261 at 4.)
14
Counterclaimants argue that the Court already determined that Counterclaimants are not pubic
15
officials. (ECF No. 263 at 8.) However, the Court’s previous order dealt with the issue of limited
16
pubic figures, which is distinct from public officials. The elements Counterclaimants must
17
establish to succeed on claims of libel and slander turns on the determination of whether they are
18
considered public officials.
19
Under California law, whether someone is a public official is determined by federal
20
standards. Rosenblatt v. Baer, 383 U.S. 75, 84 (1966). A person qualifies as a public official if
21
they:
22
23
24
25
26
27
28
“(1) [have], or appear to the public to have, substantial
responsibility for or control over the conduct of governmental
affairs; (2) usually enjoys significantly greater access to the mass
media and therefore a more realistic opportunity to contradict false
statements than the private individual; (3) holds a position in the
government which has such apparent importance that the public has
an independent interest in the person’s qualifications and
performance beyond the general public interest in the qualifications
and performance of all government employees; and (4) holds a
position which invites public scrutiny and discussion of the person
holding it entirely apart from the scrutiny and discussion
occasioned by the particular controversy.”
5
1
Mosesian v. McClatchy Newspapers, 205 Cal. App. 3d 597, 608–09 (1988).
2
“The ‘public official’ designation applies at the very least to those among the hierarchy of
3
government employees who have, or appear to the public to have, substantial responsibility for or
4
control over the conduct of governmental affairs.” Rosenblatt, 383 U.S. at 85. California courts
5
do not consider “government employment a dispositive factor in resolving the issue of public
6
official status.” Ghafur v. Bernstein, 131 Cal. App. 4th 1230, 1239 (2005). “[T]he touchstone of
7
public official status is the extent to which the plaintiff’s position is likely to attract or warrant
8
scrutiny by members of the public.” Kahn v. Bower, 232 Cal. App. 3d 1599, 1611 (1991). The
9
scrutiny may be caused by the prominence of the position or the duties of the position tend to
10
11
12
naturally have a large or dramatic impact on members of the public. Id.
i.
Counterclaimant VMRC
Counterdefendants assert that VMRC is a private entity that “performs a role typically
13
reserved for governmental entities.” (ECF No. 261 at 4.) Counterdefendants argue that a person
14
need not be employed by a government entity to be considered a public official. (ECF No. 261 at
15
4.) Counterclaimants do not address whether VMRC is a public official. However,
16
Counterdefendants do not cite any case law that would suggest that an entity, non-profit or
17
governmental, may be considered a person such that a Court may hold that they are a person who
18
constitutes a public official. Likewise, the Court conducted an independent search and cannot
19
identify a case that precisely resolves this question. Without Counterdefendants providing case
20
analysis, the Court declines to extend the term “public official” to encompass not only persons,
21
but entities as well. Accordingly, the Court finds that VMRC is not a public official for the
22
purposes of this lawsuit.
23
24
ii.
Counterclaimant Tara Sisemore-Hester
Counterdefendants argue that Sisemore-Hester, in her position of coordinator of Autism
25
Services for VMRC, was charged with substantial responsibility that impacted “thousands of
26
children seeking ABA services.” (ECF No. 261 at 5.) Counterdefendants assert that Sisemore-
27
Hester kept an interest list and directed subordinates to convene meetings to initiate ABA
28
services. (ECF No. 261 at 4–5.) Counterclaimants assert that Sisemore-Hester did not have
6
1
sufficient control over the services provided to children to subject Sisemore-Hester to the public
2
official standard. (ECF No. 263 at 12.)
3
Counterdefendants rely on Kahn to argue that Sisemore-Hester’s control and duties were
4
sufficient to qualify her as a public official. Kahn, 232 Cal. App. 3d at 1611–13. In Kahn, the
5
appellate court held that the work plaintiff did as a social worker included considerable power to
6
affect the lives of children and her decision directly determined the type of care and educational
7
services children with disabilities would get. Id. at 1611. In comparison, Counterdefendants note
8
that Sisemore-Hester kept an interest list and “made the determination to ‘direct’ service
9
coordinators to convene the appropriate meeting.” (ECF No. 261 at 5.) However, as
10
Counterclaimants argue, Counterdefendants misrepresent the testimony provided by Sisemore-
11
Hester in her deposition when reaching these conclusions about her duties. (ECF No. 263 at 13.)
12
Counterdefendants and Counterclaimants both interpret the same portion of Sisemore-
13
Hester’s deposition to reach opposite and conflicting views. However, the parties do not dispute
14
the underlying accuracy or authenticity of her statements. The testimony at issue in Sisemore-
15
Hester’s deposition is that “if service coordinators asked — said a parent might be interested in an
16
EIBT program, if the child was under three, I directed the service coordinator to direct the family
17
to call an IFSP meeting so the needs could be determined. If the child was over three, I directed
18
the service coordinator to call and IPP [sic] meeting.” (Deposition of Tara Sisemore-Hester at
19
25:25–26:6) Having reviewed the statement, the Court finds that Counterdefendants’ reading is
20
an overstatement of the facts. The Court can best describe Sisemore-Hester as a gatekeeper who
21
when told of a family’s interest in ABA services guides the appropriate person to call a meeting
22
to determine placement.
23
Unlike the social worker in Kahn, Sisemore-Hester does not possess considerable power
24
by which her “decisions directly and often immediately determined whether the educational,
25
social, medical and economic needs of developmentally disable children in her care would
26
adequately be met.” Kahn, 232 Cal. App. 3d at 1611. At most Sisemore-Hester’s testimony
27
suggests she started the process by which children could gain services and placements. However,
28
she did not determine the appropriate placements, which services to offer, or when those services
7
1
and placements would begin. She explained that “[f]or a child to be in a program, there would
2
have to be an opening obviously. Once the district offered that as FAPE, we would have co-
3
funded.” (Deposition of Tara Sisemore-Hester at 39: 14–16) Thus, those decisions were made by
4
the school districts and were subject to outside factors such as openings in placement centers.
5
The two instances of control Counterdefendants reference — her interest list and directing
6
service coordinators to call meetings or tell parents to call meetings — are insufficient for this
7
Court to find that the Sisemore-Hester’s duties have a large or dramatic impact on the public.
8
Accordingly, Sisemore-Hester is not a public official for the purposes of defamation law and
9
Counterclaimants do not need to demonstrate actual malice.
10
11
iii.
Counterclaimant Richard Jacobs
Counterdefendants only argument is that Jacobs is a public figure because he is “the
12
Executive Director of VMRC held a position of sufficient visibility and stature to constitute a
13
public official.” (ECF No. 261 at 5.) Counterdefendants do not offer any evidence or case law in
14
support of this statement. In their reply, and for the first time, Counterdefendants assert that
15
Jacobs’ role as executive director “is analogous to the role of a superintendent of a school
16
system.” (ECF No. 276 at 5.) However, since a party may not raise new arguments in their reply,
17
the Court disregards this argument. Counterdefendants have failed to meet their burden of
18
showing that Richard Jacobs is a public official who must demonstrate actual malice to bring
19
claims for libel and slander. Accordingly, Counterclaimants are not required to demonstrate
20
actual malice to succeed on their claims for libel and slander. Having concluded that VMRC,
21
Sisemore-Hester, and Jacobs are not public officials, the Court now turns to a discussion of
22
Counterdefendants’ arguments regarding the individual counterclaims.
23
24
B. Counterclaim 1: Libel
Counterdefendants assert that the allegedly defamatory statements are matters of opinion
25
and are not provably false. (ECF No. 261 at 10–12.) Counterclaimants argue that there is a
26
triable issue of facts as to whether the statements are “defamatory false statements of fact.” (ECF
27
No. 263 at 15.)
28
To state a claim for libel under California law, a party must establish “the intentional
8
1
publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure
2
or which causes special damage.” Scott v. Solano Cnty. Health and Soc. Servs. Dept., 459 F.
3
Supp. 2d 959, 973 (E.D. Cal. 2006) (quoting Smith v. Maldonado, 72 Cal. App. 4th 637, 645
4
(1999)). “[T]he truth of the offensive statements or communication is a complete defense against
5
civil liability, regardless of bad faith or malicious purpose.” Smith, 72 Cal. App. 4th at 646.
6
Generally, the burden is on the defendant to demonstrate the truth of the statements. Lipman v.
7
Brisbane Elementary School Dist., 55 Cal.2d 224, 233 (1961).
8
9
i.
Whether the provably false standard applies
Counterdefendants assert that Counterclaimants have the burden of establishing that the
10
statements are provably false. (ECF No. 261 at 10–12.) In ordinary circumstances, the
11
“defendant must bear the burden of truth.” Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.
12
767, 776 (1986); see also Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (1996) (finding
13
that first amendment prohibits applying common law presumption of falsity when the allegedly
14
defamatory statements relate to a matter of public interest). However when the allegedly
15
defamatory statements involve a public official or public figure, or matter of public concern, the
16
burden shifts to the plaintiff to prove the falsity of the statements. See Nazim, 47 Cal. App. 4th at
17
373 (requiring the plaintiff to prove falsity on a matter of public concern even when the case
18
involves non-media defendants); Philadelphia Newspapers, 475 U.S. at 776 (requiring the
19
plaintiff to prove falsity on a matter of public concern when defendants are members of the
20
media).
21
Counterdefendants cite Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (1996), in
22
support of their argument that Counterclaimants must demonstrate that the statements are false.
23
In Nizam, the court found that in cases involving matters of public concern or public officials, the
24
burden is on the plaintiff to prove falsity of the allegedly defamatory statements. Id. at 373–74.
25
As discussed above the Court finds that Sisemore-Hester and Jacobs are not public officials.
26
Furthermore, Counterdefendants do not discuss or offer evidence in support of a
27
conclusion that the statements involve a matter of public concern. Counterdefendants simply
28
contend that the statements are not provably false. (ECF No. 261 at 11.) This contention is
9
1
wholly lacking. Counterdefendants bear the initial burden of demonstrating that there is no
2
triable issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Here, since
3
Counterdefendants have not met their burden of demonstrating that the statements involve a
4
matter of public concern, they must show that the statements are true. Therefore,
5
Counterclaimants do not have the burden of demonstrating that the statements are false.
6
ii.
Whether statements are matters of opinion
7
Counterdefendants argue that M.A.F.’s statements constitute opinion on matters of public
8
concern. (ECF No. 261 at 10.) Counterdefendants assert that Counterclaimants cannot prevail as
9
a matter of law because M.A.F. supports her decisions by linking her readers to the complaint in
10
this action. (ECF No. 261 at 11.) Counterclaimants contend that there is a triable issue of fact as
11
to whether M.A.F. made “defamatory false statements of fact.” Counterclaimants point to
12
M.A.F.’s deposition in support of their conclusion to demonstrate that she admitted to making the
13
statements. (See ECF No. 263 at 10–15.)
14
“The First Amendment places limits on the types of speech that can give rise to a
15
defamation action under state law.” Gilbrook v. City of Westminster, 177 F.3d 839, 861 (9th Cir.
16
1999). Among other protections, the First Amendment protects “statements of opinion on matters
17
of public concern that do not contain or imply a provable factual assertion.” Underwager v.
18
Channel 9 Australia, 69 F.3d 361, 366 (9th Cir. 1995). In determining whether the statements are
19
protected opinions, the threshold question is “whether a reasonable factfinder could conclude that
20
the contested statement implies an assertion of objective fact.” Unelko Corp. v. Rooney, 912 F.2d
21
1049, 1053 (9th Cir. 1990), cert. denied, 499 U.S. 961 (1991). If the answer is no, then First
22
Amendment protections apply. Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995). “To
23
determine whether a statement implies a factual assertion, we examine the totality of the
24
circumstances in which it was made.” Underwager, 69 F.3d at 366. Under the totality of the
25
circumstances test, the court first analyzes the language of the statement and then the context in
26
which the statement was made. Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375, 385
27
(Cal. Ct. App. 2004).
28
As to Exhibit E — the home page of the Autism Reform California website —
10
1
Counterdefendants argue that the allegedly libelous statements which describe “VMRC’s
2
jurisdiction as ‘illegal’ and ‘discriminatory’” are protected opinion because M.A.F. “provides a
3
link to the complaint in this action as a factual basis” for her opinion. (ECF No. 261 at 11.) An
4
opinion based on fully disclosed facts is actionable only if the underlying facts are themselves
5
false and defamatory. Standing Committee v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995). In
6
other words, the factual basis must be provably true. Franklin, 116 Cal. App. 4th at 388.
7
However, the issue in determining whether the facts are provably true is not whether the
8
complaint made truthful assertions of fact, but whether the complaint existed and made the
9
assertions claimed. Id. Here, the complaint at issue does in fact exist as it is the complaint in this
10
action. Furthermore, the Complaint asserts that VMRC’s criteria is illegal and brings claims
11
against VMRC under Section 504 of the Rehabilitation Act, the Americans with Disabilities Act,
12
and the Unruh Civil Rights Act. (See ECF No. 1) Visitors to the American Reform California
13
website were invited to read the complaint and determine for themselves whether they believed
14
VMRC’s criteria are illegal and discriminatory. Therefore, the language of the statements
15
suggests that the statements on the Home page were protected opinion.
16
The Court next determines the context in which the statements were made. Franklin, 116
17
Cal. App. 4th at 385. “The contextual analysis demands that the courts look at the nature and full
18
content of the communication and to the knowledge and understanding of the audience to whom
19
the publication was directed.” Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 261
20
(1986). Here, these statements were made in connection with an autism reform website. Visitors
21
to this website likely understood the website to provide details on reform in autism treatments and
22
services. The Home section of the website is dedicated to a “background history” and description
23
of the controversies leading the group to believe that reform in autism services is necessary. (See
24
ECF No. 21 at 71–72.) One such controversy is the case presently before this Court. Based on
25
the background, visitors would see the transformation of the services provided and the reasons for
26
the statements regarding reform and conduct of parties involved in autism services. Therefore,
27
reading the statements “in light of the whole scope and apparent object of the writer,” supports
28
the Court’s finding that the statements in Exhibit E are protected opinion. Baker, 42 Cal.3d at
11
1
261 (citations omitted). Accordingly, the Court GRANTS Counterdefendants’ motion for
2
summary judgement as to counterclaim one for libel as to Exhibit E.
3
With respect to Exhibits F and G, — the Resource section of the Autism Reform
4
California website and the EIBT section of the Valley SNAFU website, respectively —
5
Counterdefendants similarly argue that M.A.F. linked to “the complaint along with other factual
6
details to substantiate her opinion.” (ECF No. 261 at 12.) Above, Counterdefendants identify
7
the allegedly slanderous statements they argue are protected opinion. However, here
8
Counterdefendants do not identify which statements are protected opinion in either Exhibit F or
9
Exhibit G. As the Court noted in its previous order it cannot decide whether the statements are
10
matters of opinion when Counterdefendants do not identify which portions are opinion. (ECF
11
No. 111 at 12.) Accordingly, Counterdefendants have not met their burden of identifying the
12
deficiencies in the pleadings or depositions. Celotex, 477 U.S. at 323. Summary judgment is
13
DENIED as to counterclaim one for libel as to Exhibits F and G.
14
15
C. Counterclaim 2: Slander
Counterdefendants argue that Counterclaimants cannot demonstrate a triable issue of fact
16
as to their slander claim. (ECF No. 261 at 6–10.) Counterdefendants assert that
17
Counterclaimants fail to identify statements made by M.A.F., that there is no evidence that
18
M.A.F. made any defamatory statements, and that the statements are not provably false. (ECF
19
No. 261 at 7–9.) Counterclaimants contend that M.A.F. admitted to making the statements at
20
issue in the RecordNet.com article. (ECF No. 263 at 19.) Counterclaimants further assert that
21
M.A.F. admitted to accusing VMRC of “developing a scheme to purposefully deny autistic
22
students access to autism services.” (ECF No. 263 at 19.) Based on these statements,
23
Counterclaimants contend there is a triable issue of fact that should be left to the jury. (ECF No.
24
263 at 19.)
25
To succeed on a claim for slander the plaintiff must establish “the intentional publication
26
of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which
27
causes special damages.” Scott, 495 F. Supp. 2d at 973. A claim for slander mirrors a claim for
28
libel. Id. Therefore, the analysis concerning the provably false standard for libel similarly
12
1
applies to slander. As stated above, the Court found that Counterdefendants bear the burden of
2
demonstrating that Counterclaimants are public officials who must demonstrate actual malice.
3
The Court found that Counterdefendants did not demonstrate that Counterclaimants are public
4
officials and failed to discuss whether Counterclaimants might be public figures or that the
5
statements regarded a matter of public concern. Therefore, the Court rejected Counterdefendants’
6
argument that Counterclaimants must show actual malice to succeed on their counterclaim for
7
libel. For these same reasons, the Court similarly DENIES Counterdefendants’ motion for
8
summary judgment for the slander counterclaim as to Counterdefendants’ argument that
9
Counterclaimants must demonstrate actual malice. The Court turns to the Counterdefendants
10
11
12
other arguments.
i.
DeVelbiss Email
The DeVelbiss email at issue is from the mother of a child notifying Sisemore-Hester that
13
VMRC was not welcome at her son’s IEP meeting because she believes that there is no law that
14
requires VMRC to be present at the meeting in order for her child to receive Free Appropriate
15
Public Education (“FAPE”). (ECF No. 21 at 62.) Counterdefendants argue that
16
Counterclaimants do not have any evidence to support a finding that M.A.F. made slanderous
17
statements to DeVelbiss which induced her to write the email. (ECF No. 261 at 7.) Furthermore,
18
Counterdefendants assert that the statement that VMRC would prevent a child from receiving
19
services is not defamatory per se and requires proof of actual damages. (ECF No. 261 at 8.)
20
Counterdefendants do not identify which exhibit that statement originates from.
21
22
23
a. Sufficiency of Evidence that M.A.F. made the alleged statements to
DeVelbiss
Counterdefendants argue that there is “a dearth of evidence that . . . M.A.F. made any
24
defamatory statements to DeVelbiss.” (ECF No. 261 at 7.) Counterdefendants draw attention to
25
statements in Sisemore-Hester’s deposition to demonstrate that she was unable to identify
26
statements made by M.A.F. except as through an unknown third party. (ECF No. 261 at 7.)
27
Counterclaimants assert that M.A.F. in her deposition admitted to making the statements
28
regarding VMRC attempting to deny autism services to children. (ECF No. 263 at 19.)
13
1
In support of their argument, Counterdefendants cite to lines of Sisemore-Hester’s
2
deposition in which she states that she believes that M.A.F. told DeVelbiss that VMRC plans to
3
deny DeVelbiss’s child intensive ABA services. (ECF No. 261 at 8.) Sisemore-Hester goes on to
4
state that she based her belief of M.A.F.’s involvement on information she obtained from a
5
service coordinator. (Deposition of Tara-Sisemore-Hester at 90:12–91:9.) Counterdefendants
6
argue that these statements demonstrate that Counterclaimants have no evidence that M.A.F.
7
made the allegedly slanderous statements that prompted DeVelbiss to write the email to
8
Sisemore-Hester. (ECF No. 261 at 8.)
9
The moving party bears the initial burden of demonstrating that there is no genuine
10
dispute of material facts such that summary judgment should be entered in its favor. Celotex, 477
11
U.S. at 323. In a slander action, identification of the speaker is an essential element of the claim.
12
Here, Counterdefendants argue that Counterclaimants cannot prove that M.A.F. made the
13
allegedly slanderous statements. However, the evidence presented by Counterdefendants does
14
not demonstrate that there is no genuine issue of material fact. Quite the opposite, Sisemore-
15
Hester’s statements call into dispute whether M.A.F. told DeVelbiss that VMRC would deny her
16
child intensive ABA services. This is a question of fact in dispute that a jury must determine at
17
trial. Accordingly, Counterdefendants’ motion for summary judgment on the ground that M.A.F.
18
is not identified as the speaker is DENIED.
19
20
b. Slander per se
Counterdefendants assert that the statement “VMRC would prevent a child from receiving
21
services” is not defamatory per se. (ECF No. 261 at 8.) An allegedly slanderous statement is
22
considered slander per se if the statement : (1) charges the person with a crime or having been
23
indicted, convicted or punished for a crime; (2) alleges he has an infectious, contagious or
24
loathsome disease; (3) “tends directly to injure him in respect to his office, profession, trade or
25
business, either by imputing to him general disqualification in those respects which the office or
26
other occupation peculiarly requires, or by imputing something with reference to his office,
27
profession, trade, or business that has a natural tendency to lessen its profits”; or (4) asserts
28
impotence or lack of chastity. Cal. Civil Code § 46. To succeed on a slander claim when the
14
1
allegedly slanderous statement does not fit into the first four subsections of California Civil Code
2
§ 46, the plaintiff must prove actual damages. Regalia v. Nethercutt Collection, 172 Cal. App.
3
4th 361, 367 (Cal. Ct. App. 2009).
4
First, Counterdefendants contend that the allegedly slanderous statement does not charge
5
Counterclaimants with a crime. (ECF No. 261 at 8.) However, Counterdefendants do not provide
6
any support or analysis as to why the statement is not a crime. Therefore, Counterdefendants
7
have failed to meet their initial burden.
8
9
Next, Counterdefendants assert that the statement does not injure VMRC’s profits because
it is a non-profit corporation. (ECF No. 261 at 8.) Counterdefendants cite Sisemore-Hester’s
10
deposition where she identified only one consumer by name as having withdrawn from VMRC,
11
A.N. a party to this lawsuit. (ECF No. 261 at 8, (citing Deposition of Tara Sisemore-Hester at
12
91:20–94:1).) Counterclaimants do not discuss Counterdefendants’ arguments. The only
13
mention of slander per se is in Counterclaimants’ proffered legal standard for slander.
14
Counterclaimants define slander as a false and unprivileged statement “which . . . tends to directly
15
inure [sic] a person’s business or professional reputation, or which cause, by natural
16
consequences, actual damage.” (ECF No. 263 at 19, (citing Cal. Civ. Code § 46).)
17
The Court does not read Counterdefendants’ arguments as asserting that the statements do
18
not injure Counterclaimants reputation or profession. Counterdefendants focus solely on the
19
amount of loss and damages VMRC, Sisemore-Hester, and Jacobs have suffered. (ECF No. 261
20
at 8–9.) However, there are two possible ways to find slander per se from subsection (3) of
21
California Civil Code § 46. The party may be directly injured in “respect to his office,
22
profession, trade or business either by [(1)] imputing to him a general disqualification in those
23
respects which the office or other occupation peculiarly requires; or [(2)] by imputing something
24
with reference to his office, profession, trade, or business that has a natural tendency to lessen its
25
profits.” Cal. Civ. Code § 46(3). Counterdefendants do not address the first possible means of
26
finding slander per se with respect to business reputations. There is still a possibility that
27
Counterclaimants can establish at trial that the statements “impute[] to [the party] a general
28
disqualification in those respects which the office or other occupation peculiarly requires.” Id.
15
1
Because Counterdefendants do not address the other possible means of establishing slander per
2
se, a genuine issue of material fact may exist. The parties have not provided enough argument for
3
the Court to make this determination. Accordingly, Counterdefendants fail to meet their burden
4
in demonstrating that there is no dispute of genuine issue of material fact as to the DeVelbiss
5
email. Summary judgment is, therefore, DENIED on the above stated grounds.
6
7
ii.
Examiner.com and Recordnet.com articles
Counterdefendants argue that Counterclaimants cannot bring a slander claim based on the
8
Examiner.com article because Counterclaimants cannot prove that M.A.F. made the statements.
9
(ECF No. 261 at 9.) Counterdefendants point out that the article attributed the allegedly
10
slanderous statements to a “Laura Jones,” a pseudonym for a mother who wished to remain
11
anonymous. (ECF No. 261 at 9.) Counterdefendants argue that “there is no evidence that M.A.F.
12
is Laura Jones.” (ECF No. 261 at 9.) Counterclaimants do not offer any evidence to dispute this
13
argument. Instead, Counterclaimants seek to maintain their slander claim based on the sweeping
14
statement that M.A.F. admitted to making the statement that VMRC developed a scheme to
15
purposefully deny autistic students intensive ABA services. (ECF No. 263 at 19.)
16
Because Counterclaimants bear the burden of proof at trial on this issue,
17
Counterdefendants can carry their burden at the summary judgment stage by showing, through
18
argument, that Counterclaimants do not have enough evidence to establish that M.A.F. is Laura
19
Jones. See Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1261 (9th Cir. 2016) (citing
20
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000)).
21
Counterdefendants state that “there is no evidence that M.A.F. is Laura Jones.” (ECF No. 261 at
22
9.) While sparse, Counterdefendants are permitted to use arguments to meet their burden. Nissan
23
Fire, 210 F.3d at 1102 (permitting moving party to show through argument that there is
24
insufficient evidence for the non-moving party to succeed at trial). Therefore, the burden shifts to
25
Counterclaimants to produce some evidence that a triable issue of fact exists such that this claim
26
should be preserved for trial. Friedman v. Live Nation Merchandise, Inc., 833 F.3d 1180, 1188
27
(9th Cir. 2016). Counterclaimants have produced no evidence to refute Counterdefendants’
28
argument and in fact fail to address the argument at all. Since Counterclaimants have not met
16
1
their burden to produce evidence to support their claim, there is no need for a trial on this issue.
2
See Nissan Fire, 210 F.3d at 1103. Accordingly, summary judgment is GRANTED as to the
3
allegedly slanderous statements in the Examiner.com article.
4
As to the Recordnet.com article, Counterdefendants argue that the statement attributed to
5
M.A.F. that “M.A.F. agreed, adding that special education should be tailored to a child’s needs,
6
and not to an agency’s criteria,” does not fit into any of the categories for slander per se. (ECF
7
No. 261 at 9.) Counterdefendants further assert that Counterclaimants cannot show actual
8
damages. (ECF No. 261 at 9.) Counterclaimants do not respond to this argue and offer no
9
evidence in support of finding that the statement is slander per se. As an initial matter,
10
Counterdefendants only discuss one statement attributed to M.A.F. in connection with the
11
Recordnet.com article. However, upon review the Court notes that the article actually attributes
12
four quotes or generalizations to M.A.F. Counterdefendants do not raise any arguments for the
13
other three statements. Therefore, the Court takes this to mean that Counterdefendants do not
14
seek summary judgment for those statements and only address the above quoted statement.
15
As discussed above, when the moving party does not bear the burden at trial, an argument
16
will suffice to meet its burden. See Coomes, 816 F.3d at 1261. The burden then shifts to the
17
non-moving party to provide some evidence that there is a triable issue of material fact.
18
Friedman, 833 F.3d at 1188. Again, Counterdefendants have made an argument, scant though it
19
may be, that Counterclaimants cannot prove that this statement amounts to slander per se.
20
Counterclaimants fail to respond to this argument or present evidence to suggest that a triable
21
issue at least exists such that this issue should go to trial. Accordingly, the Court finds that
22
Counterclaimants fail to meet their burden and summary judgment is similarly GRANTED as to
23
the Recordnet.com article with respect to the above mentioned statement.
24
IV.
CONCLUSION
25
For the above state reasons the Court hereby GRANTS Summary Judgment in favor of
26
Counterdefendants on the counterclaim for libel as to Exhibit E, and the counterclaim for slander
27
with respect to the Examiner.com article and the identified statement in the Recordnet.com
28
article. The Court herby DENIES Counterdefendants’ Motion for Summary Judgment on all
17
1
other grounds. The parties are hereby ordered to file a Joint Status Report within thirty (30) days
2
of this Order indicating their readiness to proceed to trial on the counterclaims and proposing trial
3
dates.
4
IT IS SO ORDERED.
5
6
Dated: March 31, 2017
7
8
Troy L. Nunley
United States District Judge
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?