Totah v. Bies

Filing 81

ORDER GRANTING DEFENDANTS MOTION FOR MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 3/8/2012. (ndr, COURT STAFF) (Filed on 3/8/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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4

TABITHA TOTAH,

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No. C 10-05956 CW

Plaintiff,

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v.

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ORDER GRANTING
DEFENDANT’S MOTION
FOR MOTION FOR
SUMMARY JUDGMENT

DONALD BIES,

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Defendant.

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United States District Court
For the Northern District of California

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________________________________/

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Plaintiff Tabitha Totah alleges a single cause of action
against sole Defendant Donald Bies, accusing him of defamation.

13
Having considered all of the parties' submissions and oral
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15
16

argument, the Court grants his motion for summary judgment on the
merits.
BACKGROUND

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18

Lucasfilm Entertainment Company Ltd. hired Totah in 2004 and

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she was promoted to the position of "Markets Events Manager" in

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2006.

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Bies is a model maker and first began working for

Industrial Light and Magic (ILM), a division of Lucasfilm, in

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1987.

Bies Dec. at ¶ 2.

Bies worked with Lucasfilm or an

23
24

affiliated agency from then until 2007.

Id.

In 2006, the ILM

25

model shop in which Bies worked was sold to a group of private

26

investors.

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on a consulting basis.

28

Id.

Bies, however, continued to work with Lucasfilm
Id.

Some of this consulting work included

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working on the set-up, artifact repair, and de-installation of

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Lucasfilm international exhibitions.

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together on three different Lucasfilm exhibitions, first in Korea,

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then in Brussels, and later in Madrid.

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6

Id.

Bies and Totah worked

Totah claims that Bies defamed her by telling others that she
was sexually promiscuous and slept around, and by making various

7
false statements relating to her job performance.

He made the

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9

allegedly defamatory statements about Totah to two individuals,

United States District Court
For the Northern District of California

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first to Stacey Cheregotis and then to Howard Roffman.

Cheregotis

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is a director of global product development for Lucas Licensing.

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Cheregotis had working relationships with both Totah and Bies, and

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Cheregotis and Bies were friends.

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Lucas Licensing, and has held that position for approximately ten

Roffman is the President of

15
years.
16
In October 2008, Bies and Cheregotis, accompanied by their
17
18

families, went to a pizza parlor for dinner.

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the meal, they had a conversation about their work with Lucasfilm,

20

which included a discussion about Totah's conduct while on the

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job.

22

5.

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Over the course of

Declaration of Steven Robinson, Ex. F, Bies Dep. I at 68:3-

Bies testified about the comments he made during the course of

his conversation with Cheregotis.

He said he probably told

24
Cheregotis that "it was a bit of a joke . . . among the crew.
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26
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That [Totah] was, in quotes, 'loose,' unquote."

Id. at 57:3-12.

Bies also told Cheregotis that Totah engaged in excessive drinking

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2

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and partying while traveling on Lucasfilm business.

2

Id. at 58:1-

4, 9.

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Cheregotis relayed to Roffman her conversation with Bies.

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December 3, 2008, Roffman called Bies and questioned him about

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Totah's conduct.

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51:22.

On

Robinson Dec., Ex. H, Roffman Dep. I at 50:9-

According to Roffman, Bies told him that Totah "was not a

7
good representative of Lucasfilm on the road," and that she was
8
9

responsible for errors in text panels at the exhibition in Korea.

United States District Court
For the Northern District of California

10

Id. at 53:24-25; Roffman Dec. at ¶ 9.

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Bies

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13
14
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Roffman also testified that

talked about [Totah's] temper, talked about fights that
she had gotten into with different partners, he talked
about her superficial knowledge of a lot of the things
that she was dealing with. He talked about her
reputation for sleeping around with people on the crew
to the point that it was a joke among people working on
the exhibition. He talked about her excessive partying
and drinking that was preventing her from attending
events. He talked about her lack of polish with the
press.
Id. at 54:10-19.1

Roffman denied that Bies told him that Totah

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was sexually promiscuous or had a reputation for being so.
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21
22
23

Roffman Dec. at ¶ 11.

Finally, Roffman attested,

When Don Bies told me about Tabitha Totah, he told me
among other things, that she slept with people on the
crew of the business partners responsible for setting

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25
26
27
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1

Roffman also stated that Bies had told him that Totah
"seemed to have an adversarial relationship" with employees of the
Lucasfilm Archives Division, in particular Laela French and Joanee
Honour. Bies Dec. at ¶ 9. In her opposition, Totah does not
assert that this particular statement is part of her claim for
defamation.
3

1
2

up the exhibits and that this was well known among
crewmembers, to the point it was openly joked about.
Roffman Supp. Dec. at ¶ 3.

3
Bies testified that he also told Roffman that Totah was
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5

flirtatious with a crewmember during a business trip to Belgium,

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that the crewmember was removed to prevent further contact with

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Totah, and that she was known as "loose" among the crew.

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Robinson, Ex. F, Bies Dep. I at 51:11-52:13, 56:22-57:12.

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United States District Court
For the Northern District of California

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The basis for Bies' statements about Totah's sexual conduct
and reputation included the following.

Bies witnessed her

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flirtatious behavior with the crewmember in Brussels, and Totah
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13

told him about her interest in the crewmember.

Simerly Dec., Ex.

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H, Bies Dep. I at 51:11-21.

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representative of UAU International, an event production company

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and client of Lucasfilm, told Bies that he thought Totah was

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sleeping with a UAU crewmember, and that Totah had a reputation

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for being "loose" with crewmembers.

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Dep. II at 152:22-25.

Jose Araujo, the senior

Id. at 111:3-5; Ex. G, Bies

Araujo's testimony corroborates this.

He

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stated that it was common knowledge among the UAU crew that Totah
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22

and a crewmember named Ricardo slept together and that the crew

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often joked about Totah, guessing whom she would sleep with next.

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Declaration of José Araujo at ¶ 5-6.

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received confirmation that Totah had a sexual relationship with

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Ricardo; he characterized the allegation as a rumor.

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at 143:19-24.

Bies testified that he never

Bies Dep. II

Finally, Bies testified that a different Jose from

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4

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UAU, apparently Jose Poeira, told him that Totah had a reputation

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for being "loose" with crewmembers.

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Dep. II at 151:15-152:25.

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5
6

Simerly Dec., Ex. G., Bies

When asked whether she "had sexual relations with any
employees of Lucasfilm partners while traveling on Lucasfilm
business," Totah admitted to having sex with one person, Ricardo,

7
a UAU crewmember.2

Simerly Dec., Ex. A, Totah Dep. II at 227:14-

228:12, 230:17-21.

Totah further admitted to sleeping with a

8
9

United States District Court
For the Northern District of California

10

person named Dado during a Lucasfilm business trip to Brazil.

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at 228:17-229:6.

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third-party vendor to Lucasfilm that managed a store.

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230:5-12.

14

Id.

She testified that Dado was affiliated with a

Totah did not consider Dado a crewmember.

Id. at
Id. at

230:5-16.

15
Bies' statement that Totah had a temper and fought with
16
17

business partners was based on the following.

Bies witnessed a

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heated exchange in Brussels between Totah and a Frenchman involved

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in the exhibition, and he was told about an argument she had with

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26
27
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Bies argues that Totah admitted to having sexual relations
with crewmembers in the plural, but this is incorrect. Totah's
testimony was as follows:
Q: Well, let me ask you this: Have you had sexual
relations with any employees of Lucasfilm partners
while traveling on Lucasfilm business?
A. With crew members?
Q. Yes.
A. Yes.
Q. How many?
A. One.
Simerly Dec., Ex. A, Totah Dep. II at 227:14-21.
5

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the director of a museum in Madrid.

2

Dep. II at 27:1-21; 98:18-23.

3

Simerly Dec., Ex. G, Bies

Bies stated that he told Roffman that Totah had superficial

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knowledge of her job due to errors that appeared on panels used in

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the Korea exhibition and because, on a number of occasions, Totah

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asked him to speak with certain individuals because he was more

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knowledgeable about Star Wars films than she was.

Id. at 99:20-

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100:12.

Totah admitted to misspelling the names of Star Wars

United States District Court
For the Northern District of California

10

characters and locations on the panels.

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Totah Dep. II at 154:5-14.

12

Simerly Dec., Ex. A,

The basis for Bies' statements about Totah's drinking and

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missed meetings, according to Bies, was that he was informed that

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Totah had missed a meeting in Germany because she was too "hung

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over" from drinking and socializing the previous night.

Simerly

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Dec., Ex. G, Bies Dep. II at 118:10-18.

The meeting involved a

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museum that was a potential place for an exhibition.

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118:22-24.

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this incident.

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testimony.

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that she ever missed meetings.

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Id. at

Bies testified that a Jose from UAU told him about
Both Jose Poeira and Jose Aruajo corroborate this

Poeira Dec. at ¶ 8; Araujo Dec. at ¶ 8.

at 152:25-153:8.

Totah denied

Simerly Dec., Ex. A, Totah Dep. II

However, she admitted to being drunk while

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attending one or more tradeshows or licensing shows on behalf of
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Lucasfilm.

Simerly Dec., Ex. B, Totah Dep. I at 118:2-119:9.

She

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did not recall the exact number of times, but stated that it was

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not more than five times.

Id.
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LEGAL STANDARD

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Summary judgment is properly granted when no genuine and

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disputed issues of material fact remain, and when, viewing the

4

evidence most favorably to the non-moving party, the movant is

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clearly entitled to prevail as a matter of law.

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Fed. R. Civ. P.

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

7
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
8
9

United States District Court
For the Northern District of California

10

1987).
The moving party bears the burden of showing that there is no

11

material factual dispute.

Therefore, the court must regard as

12

true the opposing party's evidence, if supported by affidavits or

13

other evidentiary material.

14

815 F.2d at 1289.

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

15
in favor of the party against whom summary judgment is sought.
16
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
17
18

587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

19

F.2d 1551, 1558 (9th Cir. 1991).

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Material facts which would preclude entry of summary judgment

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are those which, under applicable substantive law, may affect the

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outcome of the case.

The substantive law will identify which

facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

23
24

242, 248 (1986).
25
DISCUSSION

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"The tort of defamation is an invasion of the interest in
reputation."

Witkin, 5 Summ. of Cal. L., Torts, § 529 (10th Ed.
7

1

2005).

2

A claim for defamation requires the following elements: (a) a

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publication that is (b) false, (c) defamatory, (d) unprivileged

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and that (e) has a natural tendency to injure or cause special

5

damages.

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Defamation may be libel or slander.

Cal. Civ. Code § 44.

Taus v. Loftus, 40 Cal. 4th 683, 720 (2007).

The defamatory matter must be "published," that is,

7
communicated "to some third person who understands the defamatory
8
9

meaning of the statement and its application to the person to whom

United States District Court
For the Northern District of California

10

reference is made."

11

Co., 80 Cal. App. 4th 1165, 1179 (2000).

12

Ringler Associates, Inc. v. Maryland Cas.

"The sine qua non of recovery for defamation is the existence

13

of a falsehood."

Baker v. Los Angeles Herald Examiner, 42 Cal. 3d

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254, 260 (1986).

"In all cases of alleged defamation, whether

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libel or slander, the truth of the offensive statements or
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communication is a complete defense against civil liability,
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18

regardless of bad faith or malicious purpose."

19

App. 4th at 1180.

20

show the truth of the statements."

21

substance of the charge is proven true, irrespective of slight

22

inaccuracies in the details, so long as the imputation is

23

Ringler, 80 Cal.

"It is the defendant's burden to 'justify' or
Id.

"It is sufficient if the

substantially true so as to justify the gist or sting of the

24
remark."

Id. at 1180-81 (emphasis in original and internal

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26
27
28

quotation marks omitted).
California Code of Civil Procedure section 46 provides, in
relevant part, that slander may be a false and unprivileged
8

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statement that "tends directly to injure" a person with respect to

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his or her "office, profession, trade or business," or "a want of

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chastity."

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5
6
7
8
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United States District Court
For the Northern District of California

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Cal. Civ. P. § 46(3) and (4).

Finally, under California Civil Code section 47(c), a
publication is privileged when it is made in
a communication, without malice, to a person
interested therein, (1) by one who is also interested,
or (2) by one who stands in such a relation to the
person interested as to afford a reasonable ground for
supposing the motive for the communication to be
innocent, or (3) who is requested by the person
interested to give the information.

11

Cal. Civ. Code § 47(c).

12

communicator and the recipient have a common interest and the

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communication is of a kind reasonably calculated to protect or

14

further that interest."

15

Section 47(c) applies "where the

Deaile v. General Telephone Co. of

California, 40 Cal. App. 3d 841, 846 (1974)3 (citing Fairfield v.

16
17

Hagan, 248 Cal. App. 2d 194 (1967), overruled on other grounds by,

18

Lundquist v. Reusser, 7 Cal. 4th 1193 (1994)).

"The word

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'interested' as used in the statute refers to" an interest that is

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related to the defendant's efforts to protect "his own pecuniary

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or proprietary interest;" the relationship between the parties to

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the communication must be contractual, business or similar in

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nature, "such as between partners, corporate officers and members
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of incorporated associations;" and the communication must have

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3

27
28

Deaile addressed California Civil Code section 47(3), which
was renumbered as section 47(c) in 1990. 1990 Cal. Stat. 1491
(A.B. 3765).
9

1

been "in the course of the business or professional relationship."

2

Rancho La Costa, Inc. v. Superior Court, 106 Cal. App. 3d 646,

3

664-65 (1980).

4
5
6

Under section 47(c), "defendant generally bears the initial
burden of establishing that the statement in question was made on
a privileged occasion, and thereafter the burden shifts to

7
plaintiff to establish that the statement was made with malice."
8
9

United States District Court
For the Northern District of California

10
11
12
13
14

Taus, 40 Cal. 4th at 721.

Taus explains that 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 thereafter acted in
reckless disregard of the plaintiff's rights.
40 Cal. 4th at 721 (quoting Sanborn v. Chronicle Pub. Co., 18 Cal.

15
3d 406, 413 (1976)).
16
Unlike a purported statement of fact, a statement of opinion
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18

generally does not support a claim for defamation.

19

4th at 720.

20

circumstances" test to determine whether an alleged defamatory

21

statement is one of fact or of opinion.

22

"First, the language of the statement is examined . . . Next, the

23

Taus, 40 Cal.

California law applies a "totality of the

Baker, 42 Cal. 3d at 260.

context in which the statement was made must be considered."

Id.

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at 260-61.

"If it is plain that the speaker is expressing a

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26

subjective view, an interpretation, a theory, conjecture, or

27

surmise, rather than claiming to be in possession of objectively

28

verifiable facts, the statement is not actionable."
10

Standing

1

Committee on Discipline of U.S. Dist. Court for Cent. Dist. of

2

California v. Yagman, 55 F.3d 1430, 1441 (9th Cir. 1995) (holding

3

that an allegation of "dishonesty" does not imply facts capable of

4

objective verification and is not actionable).

5
6

As noted earlier, Totah argues that Bies defamed her by
telling others that she was sexually promiscuous and slept around,

7
and making several false statements with respect to her
8
9

performance on the job.

Specifically, she argues that Bies

United States District Court
For the Northern District of California

10

defamed her by stating the following: (1) she had a reputation for

11

being sexually promiscuous, (2) she was in fact sexually

12

promiscuous, (3) she slept around, (4) she was a bad

13

representative of Lucasfilm, (5) she was responsible for errors in

14

a text panel at the Korea exhibition, (6) she lacked polish with

15
the press, (7) she lacked knowledge about her job, (8) she was
16
quarrelsome with business partners, (9) she partied and drank too
17
18

much, and (10) she missed meetings while traveling on Lucasfilm

19

business.

20

Totah alleges that Bies defamed her by stating that she had a

21

reputation for being sexually promiscuous.

22

that Bies used that phrase.

23

There is no evidence

Bies testified that he told

Cheregotis that it was a joke among the crew that Totah was

24
"loose."

Roffman stated that Bies told him that Totah had a

25
26

reputation for sleeping around with people on the crew to the

27

point that it was a joke.

28

substantially true.

Bies asserts that these statements were

Araujo's declaration confirms that Totah had
11

1

such a reputation.

2

owner of UAU, that he was not aware of any sexual indiscretion by

3

Totah, of her attraction to Ricardo, or of any UAU crewmember

4

joking about her sexual behavior.

5

constitute evidence that Totah did not have the reputation Bies

6

described.

Totah relies on testimony from Paulo Dias, the

This testimony does not

It simply establishes that Dias was unaware of it.

7
Furthermore, Bies' statements about Totah's reputation to
8
9

Cheregotis and Roffman are privileged.

Even though Bies'

United States District Court
For the Northern District of California

10

statement to Cheregotis was made in a social setting, Bies and

11

Cheregotis shared an interest in the success of Lucasfilm business

12

endeavors and Bies' statement was reasonably calculated to protect

13

Lucasfilm's interests.

14

reputation with Lucasfilm business partners and, thus, related

Bies' statement pertained to Totah's

15
directly to the company's interest in maintaining its business
16
relationships.

It is undisputed that Roffman, the President of

17
18

Lucas Licensing, had an interest in information about Totah's

19

conduct while on business travel and that he elicited the

20

information from Bies.

21

made these statements with malice, or that he lacked reasonable

22

grounds to believe them to be true.

23

Totah has pointed to no evidence that Bies

Totah also claims that Bies defamed her by stating that she

24
was in fact sexually promiscuous.

Again, there is no evidence

25
26

that Bies used that phrase.

Totah contends that Bies "at least"

27

told Cheregotis that Totah "slept around."

28

testified that Bies made such a statement to Cheregotis, and his
12

However, only Roffman

1

testimony is inadmissible hearsay.

2

refused to let Bies tell her any details.

3

Cheregotis testified that she

There is no evidence that Bies told Roffman that Totah in

4

fact "slept around."

5

Totah "slept with people on the crew of the business partners

6

According to Roffman, Bies told him that

responsible for setting up the exhibits."

Bies asserts as a

7
defense that his statement is substantially true, and he carries
8
9

the burden to establish this.

As noted earlier, the truthfulness

United States District Court
For the Northern District of California

10

of a statement is sufficiently demonstrated if the substance of

11

the charge is proven true, regardless of slight inaccuracies.

12

is simply required that "the imputation is substantially true so

13

as to justify the gist or sting of the remark."

14

App. 4th at 1180-81.

It

Ringler, 80 Cal.

15
Here, the imputation of Bies' remark is that Totah slept with
16
employees of Lucasfilm business partners.

Totah admitted to

17
18

having sex with one UAU crewmember, and with another individual,

19

affiliated with a third-party vendor to Lucasfilm, during a

20

business trip to Brazil.

21

than one crewmember, she slept with a second person who was

22

likewise involved in Lucasfilm business.

23

Although Totah did not sleep with more

This evidence

demonstrates the substantial truth of Bies' remark, such that it

24
justifies the gist of it.

Therefore, Bies may not be held liable

25
26
27
28

for this statement.
Nevertheless, Totah argues that a jury must determine whether
Bies impliedly communicated that she was promiscuous.
13

However,

1

when the underlying facts are not in dispute, as in this case, the

2

Court may determine whether the statement at issue is

3

substantially true.

4

27-29 (2007) (affirming, in the context of an anti-SLAPP motion,

5

the trial court's determination that the representations at issue

6

See Gilbert v. Sykes, 147 Cal. App. 4th 13,

were substantially accurate and not defamatory as a matter of

7
law).

In Maheu v. Hughes Co., 569 F.2d 459, 465-67 (9th Cir.

8
9

1977), a case cited by Totah, the court refused to overturn the

United States District Court
For the Northern District of California

10

jury verdict on appeal, rejecting the defendant's substantial

11

truth defense and finding that defamation claims were

12

appropriately submitted to the jury because the facts upon which

13

the defendant relied were disputed.

14

dispute that the jury must resolve.

There is no similar factual

15
This case is similar to Terry v. Davis Community Church, 131
16
Cal. App. 4th 1534 (2005).

There the plaintiffs alleged in their

17
18

complaint that a false report accused one of the plaintiffs, an

19

assistant to a church youth group, of being a sexual predator and

20

having a sexual relationship with a girl, and the other plaintiff,

21

the leader of the youth group, of being involved in the

22

relationship.

23

Id. at 1539.

direct accusation.

The report, however, included no such

Rather the report included the assistant's own

24
words to the girl, stated that the leader was aware of the
25
26

correspondence, and opined that the relationship was

27

inappropriate.

Id. at 1553.

The plaintiffs, however, asserted

28

that the report implied a sexual relationship, and that the
14

1

implied statement was defamatory.

2

"raise[d] the question of whether [the assistant] is a sexual

3

predator," but held that the allegedly implied statement was not

4

actionable because it was undisputed that the assistant wrote the

5

emails and other correspondence to the girl and the leader was

6

aware of the correspondence.

Id.

The court found that the report

The statements that provided

7
the basis for inferring that a sexual relationship existed were
8
9

not false.
Likewise, here, there is no evidence that the purported

United States District Court
For the Northern District of California

10
11

implication of promiscuity was based on anything other than the

12

substantially true statement that Bies made to Roffman, that Totah

13

had sex with employees of Lucasfilm business partners while

14

representing Lucasfilm abroad.

Therefore, even if Bies' statement

15
implies that Totah was promiscuous it is not actionable because
16
the implication arises from a statement that is substantially
17
18

true.

19

privileged because Roffman had an interest knowing about Totah's

20

conduct during Lucasfilm business travel, and Bies shared the

21

information at Roffman's request.

22

of malice.

23

Finally, as explained earlier, Bies' statement was

Again, Totah cites no evidence

In addition to complaining of Bies' statements related to her

24
sexual reputation and behavior while on business travel, Totah
25
26

alleges that he defamed her by impugning her job performance.

27

Bies told Roffman that she was responsible for errors in text

28

panels at the Korea exhibition.

However, Totah admitted to the
15

1

errors.

2

defamation.

3

Thus, this alleged statement does not support a claim for

Bies told Roffman that Totah "was not a good representative

4

of Lucasfilm on the road."

5

objectively verifiable fact.

6

Such a statement is not a matter of
It is a statement of opinion akin to

the statement in Yagman, 55 F.3d at 1441, that the judge was

7
"dishonest."

Furthermore, Bies made the statement when Roffman

8
9

questioned him about Totah's conduct on the job.

There is no

United States District Court
For the Northern District of California

10

dispute that Roffman was a person with a legitimate interest in

11

such information, within the meaning of section 47(c).

12

Totah produced evidence that Bies maliciously made the statement.

13

Thus, even if Totah were able to establish that Bies' statement

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was actionable, it was privileged communication under section

Nor has

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47(c).
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Bies also allegedly defamed Totah by telling Roffman that she
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lacked "polish with the press."

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opinion that does not amount to an objectively verifiable fact.

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Furthermore, the statement is privileged under section 47(c)

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because Roffman elicited it by inquiring about Totah's conduct on

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the job.

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This likewise is a statement of

Totah has failed to produce evidence of malice, and

fails to point to any evidence that Bies lacked grounds for his

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opinion.

Reliance on her positive performance reviews is

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inadequate.
Bies also told Roffman that Totah had "superficial knowledge
of a lot of the things that she was dealing with."
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This statement

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is also one of opinion.

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47(c) because Bies made the statement when Roffman questioned him

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about Totah's conduct on the job.

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Roffman had a legitimate interest in the information.

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evidence that Bies spoke with malice or without factual basis.

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The statement is privileged under section

Again, it is not disputed that
There is no

Totah contends that Bies defamed her by saying that she had a

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temper and had fights with Lucasfilm partners.

Bies testified

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that he had witnessed a heated exchange between Totah and a

United States District Court
For the Northern District of California

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Frenchman involved in the Brussels exhibition and that he was told

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about an argument she had with a museum director in Madrid.

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has not presented evidence that these fights did not occur or that

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she did not have fights with Lucasfilm partners.

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performance reviews are too general to negate Bies' testimony

Totah

Totah's positive

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regarding the arguments.

According to the Dias declaration, upon

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which Totah relies, he was only present at "various times" during
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the exhibitions in Brussels and Madrid.

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that he never heard from Lucasfilm employees that Totah was

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unprofessional in any way, he did not specifically address whether

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Totah argued with Lucasfilm partners in Brussels or Madrid.

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was not necessarily present when the fights occurred.

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Although Dias testified

He

Ricardo

Comissoli, upon whose declaration Totah also relies, was only

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personally present for Totah's trips to Brazil and Chile.
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Comissoli did not address whether Totah argued with business

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partners in Brussels or Madrid.

Furthermore, like the statements

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above, Bies' representations to Roffman on these points are
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privileged.

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with malice.

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Totah lacks evidence that the statements were made

Totah also claims that Bies defamed her by stating that she

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partied and drank too much, and missed business meetings.

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told Cheregotis that Totah engaged in excessive drinking and

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Bies

partying while traveling on Lucasfilm business, although he

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apparently did not mention missed meetings to her.

Totah admitted

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to being drunk while attending trade shows or licensing shows on

United States District Court
For the Northern District of California

10

behalf of Lucasfilm.

Thus, Bies is entitled to the substantial

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truth defense as to his statement that Totah drank and partied

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excessively while on business travel.

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is privileged and Totah lacks evidence that Bies spoke with

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malice.

In addition, this statement

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Bies also told Roffman about Totah's excessive partying and
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drinking, and that it prevented her from attending Lucasfilm
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activities.

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that this amounts to evidence that the latter statement was not

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substantially true, Bies' communication was privileged.

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undisputed that Roffman is an interested person and the statement

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was made in response to his questioning.

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Totah denies that she missed meetings.

Even assuming

It is

Nor has Totah produced

evidence of malice on Bies' part, or evidence that Bies lacked

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reasonable grounds for belief in the truth of his statement.
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None of the statements that are the subject of Totah's

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defamation claim is actionable, either because they are

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substantially true, because they are opinions, or because they are
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privileged communications made without evidence of malice, or all

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three.

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CONCLUSION
In sum, Totah has failed to raise a disputed issue of fact
material to her claim for defamation based on any statement that
there is evidence Bies made.

Therefore, Bies' motion for summary

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judgment is GRANTED.

The Clerk shall enter judgment for Bies.

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United States District Court
For the Northern District of California

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Bies shall recover his costs from Totah.
IT IS SO ORDERED.
Dated: 3/8/2012

CLAUDIA WILKEN
United States District Judge

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