Lanier v. United States of America et al

Filing 73

ORDER granting Defendant Kean McAdam's 42 Motion for Summary Judgment. California's common interest privilege applies as a matter of law, and Defendant McAdam is entitled to summary judgment. Signed by Judge Cynthia Bashant on 8/14/2017. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TOMMY LaNIER,

Case No. 15-cv-00360-BAS-BLM
Plaintiff,

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ORDER GRANTING
DEFENDANT MCADAM’S
MOTION FOR SUMMARY
JUDGMENT

v.

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UNITED STATES OF AMERICA, et
al.,
Defendants.

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Plaintiff Tommy LaNier brings a claim for defamation against Defendant Kean

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McAdam, alleging McAdam defamed him by telling an executive board he falsely

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justified a business trip to Puerto Rico. McAdam now moves for summary judgment,

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arguing, among other things, that the allegedly defamatory statement is privileged

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under the “common interest” privilege of California Civil Code § 47(c). The Court

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heard oral argument on the motion on August 9, 2017. For the following reasons, the

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Court grants the motion. (ECF No. 42.)

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BACKGROUND
The events giving rise to this suit occurred while both Plaintiff LaNier and
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Defendant McAdam worked as part of the San Diego-Imperial region of the High

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Intensity Drug Trafficking Area (“HIDTA”) program. HIDTA is administered by the

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Office of National Drug Control Policy (“ONDCP”), a component of the Executive

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Office of the President. HIDTA is not an organization itself, but rather serves as a

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“coordination umbrella” for federal, state, and local law enforcement agencies,

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“enabling them to combine and leverage resources and capabilities to address drug

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trafficking and drug-related crime.” (ECF No. 42-3, Exh. B, HIDTA Program–Policy

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and Budget Guidance (“Guidance”) § 2.3.5.) The Director of ONDCP designates

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specific areas in the United States as HIDTAs, and then allocates federal funds to

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support coordinated counter-drug activities in those areas. (Id. § 2.1.3.) The San

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Diego-Imperial HIDTA is one such designee, and is referred to as the SDI-HIDTA.

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The SDI-HIDTA, like all HIDTA designees, is governed by an Executive Board

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(“Board”) comprised of federal, state, and local law enforcement leaders from the

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designated area. (Id. § 3.4.) The Board is responsible for assessing the drug trafficking

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threat in the area, developing a strategy to address the threat, designing and overseeing

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initiatives to implement the strategy, reviewing and approving reports from the

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HIDTA to the Director of ONDCP, and managing funds. (Id. §§ 2.3.2, 3.4.2.)

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Each Board selects a HIDTA Director, who is responsible for implementing the

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Board’s strategy and policies. (Id. § 3.4.7.) Defendant McAdam is, and was at all times

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relevant, Director of the SDI-HIDTA. As Director, McAdam’s principal

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responsibilities include: providing day-to-day administrative, financial, and program

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management for HIDTA operations, ensuring that SDI-HIDTA initiatives comply

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with federal requirements, and advising the Board concerning the performance of

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HIDTA initiatives. (Id. § 3.5.1.) The SDI-HIDTA Director also serves as the point of

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contact between the Board and ONDCP on all HIDTA matters. (Id. § 3.5.2.)

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From January of 2004 to October of 2013, Plaintiff LaNier served as the

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Director of the National Marijuana Initiative (“NMI”), an initiative of the SDI-

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HIDTA. (ECF No. 43-2, LaNier Decl. ¶ 2.) In this capacity, LaNier frequently traveled
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to other regions of the United States to provide training related to marijuana

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interdiction. Because the NMI is an initiative of the SDI-HIDTA, LaNier’s NMI-

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related travel required approval by the SDI-HIDTA Director. (Id. ¶ 8.) In July of 2013,

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LaNier submitted, and McAdam approved, a request to travel with a small team to the

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Puerto Rico-United States Virgin Islands (“PR-USVI”) HIDTA to assess training

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needs. (LaNier Decl. Exh. 2-2.) LaNier traveled to Puerto Rico from September 3

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through September 6, 2013.

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According to McAdam, he approved LaNier’s travel request based on LaNier’s

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representation that Shannon Kelly and Mike Gottlieb of ONDCP requested and

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directed LaNier to take the trip. (McAdam Decl. ¶ 16.) After LaNier left for Puerto

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Rico, McAdam participated in a conference call with Kelly and Gottlieb during which

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they denied directing or requesting that LaNier travel to Puerto Rico. (Id. ¶ 20.)

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On October 16, 2013, approximately six weeks after LaNier returned from

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Puerto Rico, the SDI-HIDTA Executive Board held its monthly meeting. The meeting

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included a “closed session” to which McAdam was invited to discuss personnel issues

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involving LaNier. LaNier alleges that during the closed session, McAdam defamed

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him by telling the Board he falsely represented that Kelly and Gottlieb requested and

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directed he travel to Puerto Rico. (Opp’n 13:20–25.) Following the closed session, the

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Board voted to give LaNier the option to retire, resign, or be fired from his position.

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LaNier retired.

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LaNier originally filed suit in the Superior Court of California, County of San

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Diego, asserting claims for defamation against McAdam and the City of Chula Vista,

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and claims for retaliation against McAdam and other defendants. After the case was

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removed to this Court, LaNier filed a First Amended Complaint (“FAC”) reasserting

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his claim for defamation against McAdam. McAdam now moves for summary

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judgment on the defamation claim pursuant to Federal Rule of Civil Procedure 56(a).

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(ECF No. 42.) LaNier opposes.1 (ECF No. 43.)
DISCUSSION

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A.

LaNier’s Request to Amend

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The Court first addresses LaNier’s request to amend his FAC to more precisely

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allege the content of McAdam’s defamatory statement to the Board. In the FAC,

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LaNier alleges McAdam told the Board “LaNier . . . falsified his travel voucher and

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falsified or lied about travel expenses incurred with regard to a business trip to Puerto

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Rico.” (FAC ¶ 24.) However, in his opposition to McAdam’s motion for summary

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judgment, LaNier alleges the specific defamation was McAdam’s assertion that

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LaNier lied by stating that Kelly and Gottlieb of ONDCP requested and directed

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LaNier to travel to Puerto Rico. (Opp’n 13:20–25.) LaNier requests this latter

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statement be the statement the Court treat as the alleged defamation at issue.

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The Court grants LaNier’s request to amend. Generally, when a party raises a

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new claim or issue in opposition to a motion for summary judgment, district courts

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should construe it as a request under Federal Rule of Civil Procedure 15(a) to amend

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the pleadings “out of time,” and grant leave to amend “with extreme liberality.”

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Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citations

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omitted). Here, the Court finds no reason to depart from Rule 15(a)’s liberal policy

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favoring amendment.

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McAdam argues leave to amend is improper because of undue delay and severe

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prejudice. (Reply 1:14–4:21.) The Court finds this argument unpersuasive. LaNier

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requested leave to amend in his first filing after reviewing McAdam’s grounds for

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summary judgment, and part of the evidence that forms the basis of LaNier’s request

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was obtained only six weeks prior to him seeking leave to amend. In addition, the risk

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of prejudice to McAdam is minimal given that (a) McAdam knows the precise

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In his opposition, LaNier requests the Court wait until it decides LaNier’s motion to enlarge time
and compel discovery before ruling on McAdam’s motion for summary judgment. Magistrate Judge
Barbara Major denied LaNier’s motion to enlarge time and compel discovery on March 10, 2017.
(ECF No. 62.) Accordingly, LaNier’s request is denied as moot.
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statement he communicated to the Board during the October 16, 2013 closed session,

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(b) the amended statement reflects what LaNier found during discovery, and (c) both

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in his motion for summary judgment and reply McAdam proffers arguments that

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assume the more specific defamatory statement alleged by LaNier. Under these

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circumstances, the Court finds no undue delay or prejudice that would justify denying

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LaNier’s request to amend. Accordingly, the Court will treat LaNier’s amended

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allegation—i.e., that McAdam asserted LaNier lied by stating that Kelley and Gottlieb

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requested and directed LaNier to travel to Puerto Rico—as the alleged defamation at

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issue.

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B.

Legal Standard for Summary Judgment

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“A party may move for summary judgment, identifying each claim or defense—

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or the part of each claim or defense—on which summary judgment is sought.” Fed.

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R. Civ. P. 56(a). Summary judgment is proper when “the movant shows that there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Id. A fact is “material” if it could affect the outcome of the case under

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the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). A dispute of material fact is “genuine” only when the evidence is such that a

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reasonable jury could resolve the issue in favor of the nonmoving party. Id.

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The party moving for summary judgment has the initial burden of

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demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). To meet this burden, the moving party must either

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(1) produce evidence negating an essential element of the nonmoving party’s claim or

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defense or (2) show that the nonmoving party does not have enough evidence of an

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essential element of his claim or defense to carry his ultimate burden of persuasion at

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trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th

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Cir. 2000) (citation omitted). If the moving party fails to carry his initial burden, the

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nonmoving party has no obligation to produce any evidence, and summary judgment

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will be denied. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160–61 (1970); Great Haw.
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Fin. Corp. v. Aiu, 863 F.2d 617, 619 (9th Cir. 1988) (per curiam). If, however, the

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moving party carries his initial burden, the nonmoving party must then “go beyond

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the pleadings” and, by affidavit or other appropriate evidence, demonstrate that there

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is a genuine dispute for trial. Celotex, 477 U.S. at 324.

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At the summary judgment stage, “the evidence of the nonmovant is to be

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believed, and all justifiable inferences are to be drawn in his favor.” Tolan v. Cotton,

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134 S. Ct. 1861, 1863 (2014) (per curiam) (alteration omitted) (quoting Anderson, 477

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U.S. at 255). The quantum and quality of evidence needed to defeat a properly

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supported motion for summary judgment is determined by the standard of proof that

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would apply at a trial on the merits. Anderson, 477 U.S. at 252. “If the evidence is

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merely colorable, or is not significantly probative, summary judgment may be

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granted.” Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1185 (9th Cir. 2016)

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(quoting McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016)).

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C.

Common Interest Privilege

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McAdam moves for summary judgment on various grounds, one of which is

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that the allegedly defamatory statement to the Board is protected by California’s

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common interest privilege, Cal. Civ. Code § 47(c). The Court agrees summary

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judgment is appropriate on this ground.23

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To prove defamation under California law, a plaintiff must show the intentional

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publication of a statement of fact that is false, unprivileged, and has a natural tendency

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to injure or cause special damage. Family Home & Fin. Ctr., Inc. v. Fed. Home Loan

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Because the Court resolves McAdam’s motion for summary judgment on the basis of the common
interest privilege, it does not reach McAdam’s other grounds for summary judgment.
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Concurrent with his motion for summary judgment, McAdam filed a request for judicial notice of
the HIDTA Program–Policy and Budget Guidance dated September 9, 2012 (“Guidance”). (ECF
No. 42-2, Exh. A.) On summary judgment, documentary evidence such as the Guidance must be
properly authenticated before being considered by the district court. Orr v. Bank of America, NT &
SA, 285 F.3d 764, 773–74 (9th Cir. 2002). Here, the Guidance is self-authenticating under Federal
Rule of Evidence 902(5) as a “book, pamphlet, or other publication purporting to be issued by a
public authority.” Therefore, the Guidance is properly admitted and will be considered accordingly.
McAdam’s request for judicial notice is denied as moot.
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Mortg. Corp., 525 F.3d 822, 826 (9th Cir. 2008) (quoting Smith v. Maldonado, 85 Cal.

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Rptr. 2d 397, 402 (1999)). Under the common interest privilege set forth in Cal. Civ.

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Code § 47(c), “a defendant who makes a statement to others on a matter of common

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interest is immunized from liability for defamation so long as the statement is made

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without malice.” Lundquist v. Reusser, 875 P.2d 1279, 1279 (Cal. 1994). The

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defendant has the initial burden of showing that the allegedly defamatory statement

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was made on a privileged occasion. Id. at 1284. The burden then shifts to the plaintiff

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to show the defendant made the statement with “actual malice.” Id.

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A plaintiff may establish actual malice in two ways: (1) “by a showing that the

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publication was motivated by hatred or ill will towards the plaintiff,” or (2) “by a

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showing that the defendant lacked reasonable grounds for belief in the truth of the

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publication and therefore acted in reckless disregard of the plaintiff’s rights.” Sanborn

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v. Chronicle Pub. Co., 556 P.2d 764, 768 (Cal. 1976) (quoting Roemer v. Retail Credit

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Co., 119 Cal. Rptr. 82, 88 (Ct. App. 1975)). To prove reckless disregard, a plaintiff

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must show the defendant “made the false publication with a high degree of awareness

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of . . . probable falsity, or must have entertained serious doubts as to the truth of his

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publication.” Young v. CBS Broad., Inc., 151 Cal. Rptr. 3d 237, 245 (Ct. App. 2012)

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(citations omitted) (quoting Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 657,

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667 (1989)). “When a plaintiff fails to raise triable issues of fact regarding whether a

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defendant acted with reckless disregard, a court may grant summary judgment in favor

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of the defendant as a matter of law.” Pashman v. Aetna Ins. Co., No. C–13–02835

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DMR, 2014 WL 3571689, at *19 (N.D. Cal. July 18, 2014).

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As an initial matter, the Court finds there is no genuine dispute of fact as to

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whether McAdam’s statement was made on a privileged occasion. McAdam made the

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statement to the SDI-HIDTA Executive Board, a body charged with “providing

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direction and oversight in establishing and achieving the goals for the [SDI-] HIDTA.”

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(Guidance § 3.4.2.) In light of its oversight responsibilities, the Board had a legitimate

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interest in the conduct of LaNier, who was in charge of an important SDI-HIDTA
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initiative, and whose business travel was paid for with HIDTA funds. (LaNier Decl.

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Exh. 6-1.) McAdam shared this interest in LaNier’s conduct given that McAdam’s

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responsibilities included “day-to-day administrative, financial, and program

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management for the operations of the HIDTA” and advising the Board “concerning

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the performance of HIDTA initiatives,” such as the NMI. (Guidance § 3.5.1.) Thus,

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McAdam’s statement to the Board concerning LaNier’s allegedly false justification

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for traveling to Puerto Rico was “a statement to others on a matter of common

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interest,” and is privileged absent actual malice. Lundquist, 875 P.2d at 1279.

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LaNier does not dispute that McAdam’s statement was made on a privileged

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occasion; rather, he asserts summary judgment should be denied because there is a

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genuine dispute as to whether McAdam made the statement with actual malice.

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Specifically, LaNier contends McAdam did not have reasonable grounds to believe

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the truth of his statement to the Board and therefore acted with reckless disregard.

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McAdam argues there is no triable issue on this point because: (1) LaNier testified

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during his deposition that he told McAdam Kelly and Gottlieb asked him to travel to

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Puerto Rico, and (2) McAdam spoke with Kelly and Gottlieb before making the

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allegedly defamatory statement to the Board, and both of them denied directing or

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requesting LaNier to travel to Puerto Rico.

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LaNier’s evidence that McAdam lacked reasonable grounds for believing the

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truth of his statement consists of the following: (1) a July 11, 2013 email from

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Shannon Kelly asking LaNier to “reach out” to Mike Roy, Director of the PR-USVI

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HIDTA, regarding possible “guidance” on marijuana operations (LaNier Decl. Exh.

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3); (2) an email from McAdam to Roy, sent prior to LaNier making the trip to Puerto

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Rico, in which McAdam touted LaNier’s expertise (LaNier Decl. Exh. 4-1); (3) the

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fact that there is no policy requiring ONDCP to request or direct any business trip of

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LaNier within the United States or its territories (LaNier Decl. ¶ 8; Exh. 6-2); (4) the

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fact that McAdam has nothing in writing from Mike Gottlieb indicating Gottlieb

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disapproved of the Puerto Rico trip (ECF No. 43-1, Lynn Decl. Exh. B-7); (5)
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McAdam’s admission that he was “irritated” by the situation involving alleged

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incidents of sexual harassment in the SDI-HIDTA office and that he knew LaNier was

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complaining about the situation on behalf of the victim of the alleged harassment (ECF

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No. 44, Corrected Lynn Decl., Exh. A-1, A-2); (6) the fact that the Board did not

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undertake an independent investigation to verify McAdam’s statement regarding

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LaNier’s alleged untruthfulness (Lynn Decl. Exh. A-3); and (7) the fact that during

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LaNier’s exit interview, McAdam told LaNier his termination was not related to his

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job performance (LaNier Decl. ¶ 9).

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The Court finds LaNier’s evidence, taken as true, does not raise a genuine

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dispute as to whether McAdam lacked reasonable grounds to believe the truth of his

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statement to the Board.

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First, the July 11, 2013 email from Kelly asking LaNier to “reach out” to Mike

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Roy is irrelevant to McAdam’s grounds for belief because there is no evidence

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McAdam was copied on, or was otherwise aware of, the email. And even if LaNier

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had read the email, Kelly’s request for LaNier to “reach out” to Roy does not support

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the inference that McAdam should have interpreted the email as Kelly asking or

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directing LaNier to travel to Puerto Rico. See Villiarimo v. Aloha Island Air, Inc., 281

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F.3d 1054, 1065 n.10 (9th Cir. 2002) (citation omitted) (explaining that on summary

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judgment the court need not draw all possible inferences in non-movant’s favor, but

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only all reasonable ones). Indeed, LaNier testified at his deposition that he did not

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think anything in Kelly’s July 11, 2013 email suggested that he travel to Puerto Rico.4

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At his January 7, 2015 deposition, LaNier testified as follows:
“Q.

Exhibit 22 is an email from Shannon Kelly to you dated July 11, 2013.
You’ve seen this before, haven’t you?

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A.

[LaNier] Yes, I have.

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Q.

You spoke to her on July 11, right?

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A.

[LaNier] After I received this email.

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Second, McAdam’s email to Roy touting LaNier’s expertise in no way

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undermines McAdam’s basis for belief in the truth of his statement. There is no

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contradiction in McAdam respecting LaNier’s subject matter expertise and later

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forming a reasonable belief that LaNier lied about ONDCP directing or requesting the

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trip. Furthermore, McAdam’s statement in the email that “[m]y understanding is that

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ONDCP suggested [the trip]” is not significantly dispositive where there is no basis

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to find that McAdam’s “understanding” came from ONDCP rather than from LaNier

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himself. Here, the undisputed evidence indicates that LaNier told McAdam that

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ONDCP requested and directed he travel to Puerto Rico, and that McAdam learned

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from ONDCP that that was not the case (ECF No. 46-1, Stayton Decl., Exh. D, LaNier

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Dep. 271:9–272:2; McAdam Decl. ¶¶ 19, 20).5 On this record, McAdam’s email to

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Roy does not raise a genuine dispute of fact as to McAdam’s grounds for believing

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LaNier had been untruthful.
Third, the fact there is no official policy requiring ONDCP to request or direct

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Q.

And in the conversation you had with Ms. [] Kelly on July 11 after you got
this email, was there anything she said that suggested to you that she or
anybody in ONDCP wanted you to travel to Puerto Rico?

A.

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[LaNier] No.

Q.

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You don’t read anything in this email, Exhibit 22, do you, that suggests you
travel to Puerto Rico?

A.

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[LaNier] No.”

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(ECF No. 46-1, Stayton Decl., Exh. E, LaNier Dep. 524:20–525:11.)

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LaNier attempts to dispute this evidence by citing the LaNier Declaration ¶¶ 4–8. But nothing in
the paragraphs cited controverts McAdam’s evidence that LaNier told him ONDCP requested and
directed he travel to Puerto Rico, and that he learned from ONDCP that that was not the case. Taken
as true, the portions of the LaNier Declaration cited by LaNier establish that (1) McAdam authorized
the Puerto Rico trip, (2) McAdam was under the impression ONDCP suggested the trip, (3)
McAdam’s authorization was the only authorization required for LaNier to travel, and (4) Kelly and
Gottlieb were aware LaNier would be traveling to Puerto Rico. At no point in the LaNier Declaration
does LaNier deny having told McAdam that ONDCP requested and directed the trip, or challenge
McAdam’s account of his conversation with ONDCP on the issue.
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LaNier’s business-related travel is irrelevant to McAdam’s belief in the truth of what

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he told the Board. McAdam did not tell the Board LaNier traveled to Puerto Rico

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without required ONDCP authorization. Rather, McAdam told the Board LaNier

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falsely represented ONDCP had requested and directed the trip be taken. These are

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separate and distinct issues. The fact that LaNier did not need an ONDCP request to

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travel does not call into question evidence showing LaNier told McAdam he received

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such a request. Therefore, the lack of an official policy requiring ONDCP to request

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or direct LaNier’s travel does not create a genuine dispute as to whether McAdam

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reasonably believed LaNier lied about traveling at ONDCP’s behest.

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Fourth, the fact that McAdam has nothing in writing indicating Gottlieb

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disapproved of the Puerto Rico trip does not create a genuine dispute of fact regarding

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reckless disregard. For one thing, the issue is not whether ONDCP “approved” or

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“disapproved” of the trip; the issue is whether ONDCP specifically requested or

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directed LaNier to take the trip. In addition, LaNier does not explain how the lack of

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something in writing from Gottlieb creates a triable issue where the evidence shows

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McAdam spoke with Gottlieb before making the allegedly defamatory statement to

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the Board. (McAdam Decl. ¶¶ 18–20.)

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Fifth, McAdam’s admission that he was “irritated” by alleged incidents of

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sexual harassment in the SDI-HIDTA office, and aware of LaNier’s role in advocating

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on behalf of the alleged victim of the harassment, does not raise a genuine dispute as

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to whether McAdam had reasonable grounds for his statement. Although the evidence

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supports the reasonable inference that McAdam was frustrated with LaNier, such

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frustration could only support a finding of malice to the extent it impacted McAdam’s

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“actual belief” concerning the truthfulness of the statement he made before the Board.

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See Harkonen v. Fleming, 880 F. Supp. 2d 1071, 1081 (N.D. Cal. 2012) (explaining

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that the focus of the actual malice inquiry is on “the defendant’s attitude toward the

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truth or falsity of the material published,” not “the defendant’s attitude toward the

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plaintiff”) (quoting Christian Research Inst. v. Alnor, 55 Cal. Rptr. 3d 600, 618 (Ct.
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App. 2007)); Reader’s Digest Ass’n v. Superior Court, 690 P.2d 610, 619 (Cal. 1984)

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(explaining that “mere proof of ill will” is insufficient to prove actual malice). Here,

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McAdam spoke to Kelly and Gottlieb before communicating to the Board his belief

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that LaNier had been untruthful. Thus, even if McAdam was frustrated with LaNier,

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LaNier has not raised a genuine dispute of fact that this frustration impacted

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McAdam’s belief in the truth of his statement.

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Sixth, the fact that the Board did not independently investigate the truth of

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McAdam’s statement is irrelevant. McAdam is the person who made the allegedly

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defamatory statement and so it his basis for belief in the truth of the statement that

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matters, not the Board’s.

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Seventh, the fact that McAdam told LaNier during LaNier’s exit interview that

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his termination was not related to job performance does not raise a triable issue as to

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reckless disregard. To prove reckless disregard, a plaintiff must provide evidence that

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the defendant had a high degree of awareness that the statement in question was

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probably false, or that the defendant entertained serious doubts about the truth of the

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statement. Young, 151 Cal. Rptr. 3d at 245. McAdam’s basis for believing the truth of

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his statement was his conversation with Kelly and Gottlieb before speaking to the

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Board. Thus, the fact that McAdam told LaNier his termination was not related to

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performance does not raise a genuine dispute as to whether McAdam lacked

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reasonable grounds for believing the truth of what he told the Board.

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At oral argument, LaNier’s counsel called attention to a conference call that

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McAdam held with Gottlieb, Kelly, and LaNier before LaNier traveled to Puerto Rico.

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(Lynn Decl. Exh. B-5, McAdam Dep. 57:21–59:1.) Toward the end of the call,

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McAdam mentioned that LaNier would soon be traveling to Puerto Rico at ONDCP’s

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suggestion or request. Neither Kelly nor Gottlieb responded when McAdam raised the

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subject. LaNier’s counsel argues this call proves Kelly and Gottlieb were aware of the

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trip, and therefore McAdam had no reasonable grounds for telling the Board that

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ONDCP did not request or direct it.
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This evidence does not create the conflict LaNier’s counsel suggests it creates.

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Had McAdam made his statement to the Board on the basis of Kelly and Gottlieb’s

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non-response at the end of the above-described call, there might be a triable issue as

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to whether McAdam had a reasonable basis for believing the truth of his statement.

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But that is not what happened. Instead, before McAdam spoke to the Board concerning

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LaNier, he held a conference call with Kelly and Gottlieb specifically to discuss the

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Puerto Rico trip, during which Kelly and Gottlieb denied requesting or directing

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LaNier to take the trip. (McAdam Decl. ¶¶ 18–20.) In light of this second call, the fact

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that Kelly and Gottlieb were non-responsive when McAdam mentioned the Puerto

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Rico trip during the previous call does not create a genuine dispute as to whether

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McAdam had a reasonable basis for believing LaNier had been untruthful.

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In sum, McAdam has shown that his statement to the Board regarding LaNier’s

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alleged untruthfulness involved a matter of common interest, and LaNier’s evidence,

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and reasonable inferences drawn therefrom, fail to raise a genuine dispute of fact

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regarding actual malice. Thus, the common interest privilege of Cal. Civ. Code § 47(c)

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applies, and McAdam is protected from liability for his statement to the Board.
CONCLUSION

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At the summary judgment stage, district courts do not make credibility

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determinations or weigh conflicting evidence. The evidence of the nonmoving party

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is accepted as true, and all reasonable inferences are drawn in his favor. But the

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nonmoving party cannot defeat a properly supported motion for summary judgment

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when the evidence cited is insufficient to create a genuine dispute for trial. Here, the

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quantum and quality of evidence provided by LaNier is insufficient to create a genuine

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dispute on the issue of actual malice. Therefore, California’s common interest

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privilege applies as a matter of law, and McAdam is entitled to summary judgment.

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McAdam’s motion for summary judgment is GRANTED.

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//

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//
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15cv360

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//
IT IS SO ORDERED.

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DATED: August 14, 2017

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– 14 –

15cv360