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Jordan v. Wonderful Citrus Packing LLC

United States District Court, E.D. California

August 30, 2019

JAMES K. JORDAN, Plaintiff,
v.
WONDERFUL CITRUS PACKING LLC, a California limited liability company, Defendant.

          ORDER ON DEFENDANT'S MOTION RE: COMMON-INTEREST PRIVILEGE (Doc. No. 57)

         Defendant Wonderful Citrus Packing LLC (“Wonderful Citrus”) has moved the Court to rule that certain allegedly defamatory statements qualify for California's common-interest privilege, which is codified at California Civil Code § 47(c). For the reasons discussed below, the Court will deny Wonderful Citrus' motion.

         I. Background

         A. Jordan's defamation claim.

         Plaintiff James Jordan (“Jordan”) is a former employee of Wonderful Citrus. Jordan alleges that Wonderful Citrus defamed him by falsely telling hundreds of people that he stole from Wonderful Citrus while he was employed. Based on this allegation, Jordan sued Wonderful Citrus for defamation under California law.

         B. The Court's scheduling order and pretrial order.

         After Jordan filed his complaint, the Court issued its scheduling order on June 21, 2018. See Doc. No. 21. The scheduling order required the parties to file summary judgment motions no later than May 8, 2019. The scheduling order instructed the parties to comply with Fed.R.Civ.P. 56 and Local Rules 230 and 260 when filing summary judgment motions. The scheduling order instructed the parties to meet and confer before filing summary judgment motions in order to “discuss whether the issues can be resolved without the necessity of briefing” and to “arrive at a Joint Statement of Undisputed Facts.” Id The scheduling order required the summary judgment movant to file a joint statement of undisputed facts. Id

         The deadline for summary judgment motions came and passed. Wonderful Citrus did not file a summary judgment motion by that deadline.

         On July 19, 2019, the Court issued its pretrial order. The pretrial order required the parties to file motions in limine no later than August 9, 2019, and file oppositions to motions in limine no later than August 19, 2019, just ten days later. The pretrial order scheduled the trial for September 17, 2019.

         C. Wonderful Citrus' common-interest privilege motion.

         On the deadline to file motions in limine, Wonderful Citrus filed fifteen separate motions in limine. But in addition, Wonderful Citrus also filed a motion asking the Court to rule as a matter of law that Wonderful Citrus' allegedly defamatory statements qualified for California's common-interest privilege. Ten days later, on August 19, 2019, Jordan filed responses to Wonderful Citrus' common-interest privilege motion and fifteen motions in limine.

         II. Discussion

         California's common-interest privilege is “a conditional privilege against defamation to statements made without malice on subjects of mutual interests.” Hui v. Sturbaum, 222 Cal.App.4th 1109, 1118-1119 (2014) (citations omitted). Accordingly, determining whether the privilege applies to the defendant's statements involves a two-step analysis: the defendant must show that “the allegedly defamatory statement was made on a privileged occasion, whereupon the burden shifts to the plaintiff to show the defendant made the statement with malice.” Kashian v. Harriman, 98 Cal.App.4th 892, 896 (2002).

         As for the first-step - the “subject of mutual interest” inquiry - “[communications made in a commercial setting relating to the conduct of an employee” have been held to be subjects of mutual interest that qualify for the common-interest privilege. Cornell v. Berkeley Tennis Club, 18 Cal.App. 5th 908, 949 (2017). So too have “statements by management and coworkers to other coworkers explaining why an employer disciplined an employee.” McGrory v. Applied Signal Tech., Inc., 212 Cal.App.4th 1510, 1538 (2013). This is because “an employer is privileged in pursuing its own economic interests and that of its employees to ascertain whether an employee has breached his responsibilities of employment and if so, to communicate, in good faith, that fact to others within its employ so that (1) appropriate action may be taken against the employee; (2) the danger of such breaches occurring in the future may be minimized; and (3) present employees may not develop misconceptions that affect their employment with respect to certain conduct that was undertaken in the past.” McGrory, 212 Cal.App.4th at 1538. But even if the statements initially qualify as subjects of mutual interest, the privilege “may be lost if the defendant abuses the privilege by excessive publication or the inclusion of immaterial matter which have no bearing upon the interest sought to be protected.” SDV/ACCI, Inc. v. AT & T Corp., 522 F.3d 955, 962 (9th Cir. 2008) (citing Deaile v. Gen. Tel. Co., 40 Cal.App.3d 841, 847 (1974)).

         Whether a statement is the subject of a mutual interest that qualifies for the common-interest privilege is a question of law for the court. SDV/ACCI, Inc., 522 F.3d at 961; Kashian, 98 Cal.App.4th at 896. This means that when the facts that determine the existence of the privilege are undisputed, then summary judgment on that issue is appropriate. But when the facts are disputed, then the “jury may be required to determine disputed facts relating to the existence of the privilege, ” and then the court will “decide whether the facts found by the jury made the publication privileged” or, alternatively, will “instruct ...


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