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Agard v. Hill

October 26, 2010

CUNINA AGARD, PLAINTIFF,
v.
BRETT JUSTIN HILL, JENNILEE HILL, AND DOES 1 TO 10, DEFENDANTS.



ORDER

Plaintiff's August 23, 2010 motion for summary judgment came on for hearing October 7, 2010. Cunina Agard appeared in pro per. Lawrence Hensley appeared for defendants. Upon review of the motion and the documents in support and opposition, and good cause appearing therefor, THE COURT MAKES THE FOLLOWING FINDINGS:

UNDISPUTED FACTS

Plaintiff is a wedding planner residing in Sacramento, CA. First Amended Complaint ("FAC") at 2. Plaintiff was hired by Brett Justin Hill and Jennilee Hill ("the Hills" or "defendants") as a wedding coordinator, but fired prior to the defendants' May 2008 wedding. (See FAC at 4-5.)

On or about November 23, 2009, defendants allegedly published on multiple website forums the following statements:

Wedding Coordinator Warning

Congrats to all you future brides!

My husband and I were married in May 2008 at the Harvest Inn in St. Helena Ca. We originally hired Cunina Agard of Nina's Lovely I Do's (originally out of Sacramento) to be our wedding coordinator, but had to fire her a couple of months before the wedding due to issues that are too numerous and frustrating to go into at the moment (thought [sic] I would be more than happy to explain if you want to email me). Though Ms. Agard promised to return a portion of her fee to us, she did not do so and we were forced to sue. We won the case, but Ms. Agard appealed. We won the appeal as well. Still, she did not fulfill the court order to refund our money. Ms. Agard moved multiple times during the whole process and while trying to find her to serve yet another court order, we discovered that she is operating under a new name and location in Napa Ca. I am writing this post to warn anyone who is considering using Cunina Agard from (the now named) Nina's I Do's. You will not get what you paid for and your association with the company will cause way more stress, tears, and sleepless nights than any bride should have to deal with. We found out too late that we were not the first couple to have to sue Ms. Agard. I hope that nobody else has to go through what we did. Please feel free to shoot me a message with any questions." (FAC at 2-3.)

Plaintiff contends the website posting by the Hills contains two false statements that portray her as an untrustworthy wedding planner. First, plaintiff claims the statement "Ms. Agard moved multiple times" is false in that she only moved once "down the street" to a listed address and that she left a mail forward. (FAC at 4.) Plaintiff also asserts she maintained the same telephone number. (Id.) Plaintiff argues the statement implies that she attempted to avoid service in a lawsuit or that she was otherwise engaged in unfair or illegal business practices. (Id.) Second, plaintiff claims the following statement is false: "We discovered that she is operating under a new name and location in Napa Ca. I am writing this post to warn anyone who is considering using Cunina Agard from (the now named) Nina's I Do's." (FAC at 4.) Plaintiff claims she did not change the name of her business or the location from which she conducts her business. (Id.) Plaintiff argues the statement is designed to be understood by the reader that she changed business names or business areas for purposes of unfair trade or as a way to avoid a lawsuit or other harm to her reputation. (Id.)

PROCEDURAL BACKGROUND

On January 4, 2010, plaintiff filed a complaint in the Superior Court of the County of Sacramento against defendants listed herein for libel and tortious interference with contract or prospective economic advantage. (See Doc. No. 1.) Plaintiff sought general and special damages according to proof, punitive damages, and costs of suit. (Id. at 14.) The action was removed to this court on February 5, 2010 with jurisdiction based on diversity (defendants are residents of Reno, Nevada).

On February 12, 2010, defendants filed a motion to dismiss. On February 18, 2010, plaintiff filed a FAC. The FAC is identical in all respects to the original complaint except as to the issue of damages: in the FAC, plaintiff identifies with particularity the amount she seeks in damages (general damages up to $300,000; special damages up to $425,000; punitive damages to be determined by the court; and costs of suit). On February 22, 2010, plaintiff filed an opposition to the Hills' motion to dismiss.

The court has previously heard defendants' motion to dismiss and motion for summary judgment. The sole remaining claim is plaintiff's defamation cause of action. On August 23, 2010, plaintiff filed a motion for summary judgment. Also on August 23, 2010, plaintiff filed a motion in limine. On September 2, 2010, defendants filed an opposition. On September 7, 2010, plaintiff filed a response. On September 13, 2010, plaintiff filed a request for judicial notice.

SUMMARY JUDGMENT STANDARDS UNDER RULE 56

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, ...


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