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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 TABITHA TOTAH, 5 No. C 10-05956 CW Plaintiff, 6 v. 7 ORDER GRANTING DEFENDANT’S MOTION FOR MOTION FOR SUMMARY JUDGMENT DONALD BIES, 8 Defendant. 9 United States District Court For the Northern District of California 10 ________________________________/ 11 12 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 14 15 16 argument, the Court grants his motion for summary judgment on the merits. BACKGROUND 17 18 Lucasfilm Entertainment Company Ltd. hired Totah in 2004 and 19 she was promoted to the position of "Markets Events Manager" in 20 2006. 21 Bies is a model maker and first began working for Industrial Light and Magic (ILM), a division of Lucasfilm, in 22 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. 27 on a consulting basis. 28 Id. Bies, however, continued to work with Lucasfilm Id. Some of this consulting work included 1 working on the set-up, artifact repair, and de-installation of 2 Lucasfilm international exhibitions. 3 together on three different Lucasfilm exhibitions, first in Korea, 4 then in Brussels, and later in Madrid. 5 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 8 9 allegedly defamatory statements about Totah to two individuals, United States District Court For the Northern District of California 10 first to Stacey Cheregotis and then to Howard Roffman. Cheregotis 11 is a director of global product development for Lucas Licensing. 12 Cheregotis had working relationships with both Totah and Bies, and 13 Cheregotis and Bies were friends. 14 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. 19 the meal, they had a conversation about their work with Lucasfilm, 20 which included a discussion about Totah's conduct while on the 21 job. 22 5. 23 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. 25 26 27 That [Totah] was, in quotes, 'loose,' unquote." Id. at 57:3-12. Bies also told Cheregotis that Totah engaged in excessive drinking 28 2 1 and partying while traveling on Lucasfilm business. 2 Id. at 58:1- 4, 9. 3 Cheregotis relayed to Roffman her conversation with Bies. 4 December 3, 2008, Roffman called Bies and questioned him about 5 Totah's conduct. 6 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. 11 Bies 12 13 14 15 16 17 18 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 19 was sexually promiscuous or had a reputation for being so. 20 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 24 25 26 27 28 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 4 5 flirtatious with a crewmember during a business trip to Belgium, 6 that the crewmember was removed to prevent further contact with 7 Totah, and that she was known as "loose" among the crew. 8 Robinson, Ex. F, Bies Dep. I at 51:11-52:13, 56:22-57:12. 9 United States District Court For the Northern District of California 10 The basis for Bies' statements about Totah's sexual conduct and reputation included the following. Bies witnessed her 11 flirtatious behavior with the crewmember in Brussels, and Totah 12 13 told him about her interest in the crewmember. Simerly Dec., Ex. 14 H, Bies Dep. I at 51:11-21. 15 representative of UAU International, an event production company 16 and client of Lucasfilm, told Bies that he thought Totah was 17 sleeping with a UAU crewmember, and that Totah had a reputation 18 for being "loose" with crewmembers. 19 Dep. II at 152:22-25. Jose Araujo, the senior Id. at 111:3-5; Ex. G, Bies Araujo's testimony corroborates this. He 20 stated that it was common knowledge among the UAU crew that Totah 21 22 and a crewmember named Ricardo slept together and that the crew 23 often joked about Totah, guessing whom she would sleep with next. 24 Declaration of José Araujo at ¶ 5-6. 25 received confirmation that Totah had a sexual relationship with 26 Ricardo; he characterized the allegation as a rumor. 27 at 143:19-24. Bies testified that he never Bies Dep. II Finally, Bies testified that a different Jose from 28 4 1 UAU, apparently Jose Poeira, told him that Totah had a reputation 2 for being "loose" with crewmembers. 3 Dep. II at 151:15-152:25. 4 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. 11 at 228:17-229:6. 12 third-party vendor to Lucasfilm that managed a store. 13 230:5-12. 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 18 heated exchange in Brussels between Totah and a Frenchman involved 19 in the exhibition, and he was told about an argument she had with 20 21 22 23 24 25 26 27 28 2 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 1 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 4 knowledge of her job due to errors that appeared on panels used in 5 the Korea exhibition and because, on a number of occasions, Totah 6 asked him to speak with certain individuals because he was more 7 knowledgeable about Star Wars films than she was. Id. at 99:20- 8 9 100:12. 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. 11 Totah Dep. II at 154:5-14. 12 Simerly Dec., Ex. A, The basis for Bies' statements about Totah's drinking and 13 missed meetings, according to Bies, was that he was informed that 14 Totah had missed a meeting in Germany because she was too "hung 15 over" from drinking and socializing the previous night. Simerly 16 Dec., Ex. G, Bies Dep. II at 118:10-18. The meeting involved a 17 18 museum that was a potential place for an exhibition. 19 118:22-24. 20 this incident. 21 testimony. 22 that she ever missed meetings. 23 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 24 attending one or more tradeshows or licensing shows on behalf of 25 26 Lucasfilm. Simerly Dec., Ex. B, Totah Dep. I at 118:2-119:9. She 27 did not recall the exact number of times, but stated that it was 28 not more than five times. Id. 6 1 LEGAL STANDARD 2 Summary judgment is properly granted when no genuine and 3 disputed issues of material fact remain, and when, viewing the 4 evidence most favorably to the non-moving party, the movant is 5 clearly entitled to prevail as a matter of law. 6 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). 20 Material facts which would preclude entry of summary judgment 21 are those which, under applicable substantive law, may affect the 22 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 26 27 28 "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 3 publication that is (b) false, (c) defamatory, (d) unprivileged 4 and that (e) has a natural tendency to injure or cause special 5 damages. 6 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 14 254, 260 (1986). "In all cases of alleged defamation, whether 15 libel or slander, the truth of the offensive statements or 16 communication is a complete defense against civil liability, 17 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 25 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 1 statement that "tends directly to injure" a person with respect to 2 his or her "office, profession, trade or business," or "a want of 3 chastity." 4 5 6 7 8 9 United States District Court For the Northern District of California 10 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 13 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 19 'interested' as used in the statute refers to" an interest that is 20 related to the defendant's efforts to protect "his own pecuniary 21 or proprietary interest;" the relationship between the parties to 22 the communication must be contractual, business or similar in 23 nature, "such as between partners, corporate officers and members 24 25 of incorporated associations;" and the communication must have 26 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 17 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. 24 at 260-61. "If it is plain that the speaker is expressing a 25 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 14 was actionable, it was privileged communication under section Nor has 15 47(c). 16 Bies also allegedly defamed Totah by telling Roffman that she 17 18 lacked "polish with the press." 19 opinion that does not amount to an objectively verifiable fact. 20 Furthermore, the statement is privileged under section 47(c) 21 because Roffman elicited it by inquiring about Totah's conduct on 22 the job. 23 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 24 opinion. Reliance on her positive performance reviews is 25 26 27 28 inadequate. Bies also told Roffman that Totah had "superficial knowledge of a lot of the things that she was dealing with." 16 This statement 1 is also one of opinion. 2 47(c) because Bies made the statement when Roffman questioned him 3 about Totah's conduct on the job. 4 Roffman had a legitimate interest in the information. 5 evidence that Bies spoke with malice or without factual basis. 6 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 7 temper and had fights with Lucasfilm partners. Bies testified 8 9 that he had witnessed a heated exchange between Totah and a United States District Court For the Northern District of California 10 Frenchman involved in the Brussels exhibition and that he was told 11 about an argument she had with a museum director in Madrid. 12 has not presented evidence that these fights did not occur or that 13 she did not have fights with Lucasfilm partners. 14 performance reviews are too general to negate Bies' testimony Totah Totah's positive 15 regarding the arguments. According to the Dias declaration, upon 16 which Totah relies, he was only present at "various times" during 17 18 the exhibitions in Brussels and Madrid. 19 that he never heard from Lucasfilm employees that Totah was 20 unprofessional in any way, he did not specifically address whether 21 Totah argued with Lucasfilm partners in Brussels or Madrid. 22 was not necessarily present when the fights occurred. 23 Although Dias testified He Ricardo Comissoli, upon whose declaration Totah also relies, was only 24 personally present for Totah's trips to Brazil and Chile. 25 26 Comissoli did not address whether Totah argued with business 27 partners in Brussels or Madrid. Furthermore, like the statements 28 above, Bies' representations to Roffman on these points are 17 1 privileged. 2 with malice. 3 Totah lacks evidence that the statements were made Totah also claims that Bies defamed her by stating that she 4 partied and drank too much, and missed business meetings. 5 told Cheregotis that Totah engaged in excessive drinking and 6 Bies partying while traveling on Lucasfilm business, although he 7 apparently did not mention missed meetings to her. Totah admitted 8 9 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 11 truth defense as to his statement that Totah drank and partied 12 excessively while on business travel. 13 is privileged and Totah lacks evidence that Bies spoke with 14 malice. In addition, this statement 15 Bies also told Roffman about Totah's excessive partying and 16 drinking, and that it prevented her from attending Lucasfilm 17 18 activities. 19 that this amounts to evidence that the latter statement was not 20 substantially true, Bies' communication was privileged. 21 undisputed that Roffman is an interested person and the statement 22 was made in response to his questioning. 23 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 24 reasonable grounds for belief in the truth of his statement. 25 26 None of the statements that are the subject of Totah's 27 defamation claim is actionable, either because they are 28 substantially true, because they are opinions, or because they are 18 1 privileged communications made without evidence of malice, or all 2 three. 3 4 5 6 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 7 judgment is GRANTED. The Clerk shall enter judgment for Bies. 8 9 United States District Court For the Northern District of California 10 11 12 Bies shall recover his costs from Totah. IT IS SO ORDERED. Dated: 3/8/2012 CLAUDIA WILKEN United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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