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MDTV Medical News Now, Inc. v. Sax

January 17, 2007


The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge


[Doc. No. 176]

Third Party Defendant Richard L. Sax ("Sax") moves for summary judgment on all claims Third Party Plaintiff MDTV Medical News Now, Inc. ("MDTV") asserts against him in its First Amended Third Party Complaint. For the reasons that follow, Sax is entitled to judgment on all claims MDTV asserts against it in its First Amended Third Party Complaint.


This diversity action was initiated by Plaintiffs Eye Laser Care Center, L.L.C., Nevyas Eye Associates and individual doctors--Herbert Nevyas, Michael Mazaheri, Stephen Weinstock, Norman Rappaport, and Warren Cross against MDTV and MDTV's Chief Executive Officer, Paul Argen (collectively "Plaintiffs").*fn1 Plaintiffs purchased commercial advertising and marketing programs from MDTV. Plaintiffs allege MDTV and Argen misrepresented their services, overcharged Plaintiffs, did not produce their television programs with adequate production capabilities, did not run their television programs at the appropriate times, did not honor the exclusivity provisions, and refused to refund their money. Sax filed this initial complaint against MDTV and Argen, acting as Plaintiffs' counsel of record.

MDTV and Argen answered and counterclaimed. MDTV also filed a third party complaint against Weinstock Laser Eye Center, Lasik Eye Center, Bellaire Laser Eye Center, Houston Center for Plastic Surgery, and Richard Sax.*fn2 MDTV later amended its third party complaint to add Hector Gualda as a defendant.*fn3 MDTV's First Amended Third Party Complaint is the subject of this Order and will be referred to as "Complaint."

In the Complaint, MDTV alleges the following claims against Sax: (1) breach of duties of confidentiality and loyalty; (2) tortious interference with contractual relations and with prospective economic advantage; (3) breach of contract; (4) breach of duty of good faith and fair dealing; (5) conversion; (6) defamation; and (7) misappropriation of trade secret under Cal. Civ. Code § 3426-3426.10.


As noted, Sax is moving for summary judgment on claims asserted against him by MDTV--claims which MDTV would have the burden of proof at trial. Thus, Sax "is not required to produce evidence showing the absence of a genuine issue of material fact with respect to" MDTV's asserted claims. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (citation omitted). Nor is Sax required to "support [his] motion with affidavits or other similar materials negating" MDTV's claims. Id. at 1543. Rather, Sax "need[s] only point to shortfalls in the [MDTV's] case to demonstrate the absence of evidence" supporting its claims. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1543 (9th Cir. 1989) (alterations not in original).*fn4 Sax may do so by simply pointing to the pleadings and arguing that MDTV has failed to establish an element essential to its case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

To defeat summary judgment, MDTV "must respond with more than mere hearsay and legal conclusions."Orr v. Bank of America, NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (citation omitted). MDTV also "must do more than simply show that there is some metaphysical doubt as to the material facts*fn5 ." Id. (citation omitted); see also Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Rather, MDTV must come forward with sufficient evidence demonstrating to the Court that there are genuine issues of material fact to be decided at trial. Fed. R. Civ. P. 56(e). To do so, MDTV "may not rely merely on the unsupported or conclusory allegations of [its] pleadings." Coverdell v. Department of Social and Health Services, State of Wash., 834 F.2d 758, 769 (9th Cir. 1987) (citations omitted); see also Celotex Corp., 477 U.S. at 324. Rather, MDTV must "present affirmative evidence from which a jury might return a verdict in his favor." Phelps Dodge Corp., 865 F.2d at 1542 (citation and internal quotation omitted). And, "a complete failure of proof concerning an essential element of [its] case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.


Sax has challenged the veracity of MDTV's allegations and claims, and MDTV has offered no evidence or otherwise insufficient evidence to present a jury question. For example, Sax argues MDTV's claims are barred under California*fn6 's litigation privilege doctrine*fn7 as MDTV's claims against him are premised on his communications or conduct in furtherance of filing the complaint against MDTV.

"For well over a century, communications with 'some relation' to judicial proceedings have been absolutely immune from tort liability by the privilege codified as section 47(b)." Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996 ) (citation omitted). "[T]he privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Id. at 1127.

"The California courts have applied the privilege quite expansively." Rodriguez v. Panayiotou, 314 F.3d 979, 988 (9th Cir. 2002) (citation omitted); see also Sacramento Brewing Co. v. Desmond, Miller & Desmond,75 Cal. App. 4th 1082 1089 (1999) (The litigation privilege "should be denied only where [the communication] is so palpably irrelevant to the subject matter of the action that no reasonable person can doubt its irrelevancy." ). "Although originally enacted with reference to defamation, the privilege is now held applicable to any communication, whether or not it amounts to a publication, and all torts except malicious prosecution." Stone, 84 F.3d at 1127 (citation omitted). "The privilege protects attorneys, judges, jurors, witnesses, and other court personnel." Id. (citation ...

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