Filed 8/31/26 Ebinu v. The Regents of the U. of Cal. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
JULIUS EBINU, C101407
Plaintiff and Appellant,
(Super. Ct. No. 34-2021-
v. 00300140-CU-DF-GDS)
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Defendant and Respondent.
Dr. Julius Ebinu sued the Regents of the University of California (Regents) for
defamation1 based on an email the chair of his department sent to all clinical faculty that
he contends impugned his professional reputation and integrity. The trial court granted
the Regents’ motion for summary judgment, finding the undisputed facts established that
the defamation claim was barred by the common interest privilege. Ebinu appeals,
arguing there is a triable issue of fact as to whether the email was sent with malice, which
would defeat the privilege. We find there is insufficient evidence from which a jury
could find malice and thus affirm.
1 Ebinu also sued the Regents for racial discrimination, false light, and intentional
infliction of emotional distress, but he confirms in his opening brief that those claims are
not at issue in this appeal and we thus do not discuss them further.
1
FACTUAL AND PROCEDURAL BACKGROUND
“The determinative question in an appeal from a summary judgment is whether
there are any material facts in dispute. Consequently, our preliminary recitation of ‘the
facts’ will present the undisputed facts from the moving party’s perspective” — here, the
Regents. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 430 (King).)
Because “the pleadings define the issues addressed in a summary judgment motion,” our
preliminary recitation of the facts also includes some of the allegations in the complaint.
(Lewis v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 690, 694.) Then, in the analysis
section below, “we will present the evidence that, from plaintiff’s perspective, creates
material triable facts.” (King, at p. 430.)
Ebinu is a surgeon who specializes in the treatment of the spinal cord and skull
base. At the time of the events giving rise to this lawsuit, he was an assistant professor in
the Neurological Surgery Department (the Department) at the University of California,
Davis School of Medicine. Dr. Griffith Harsh IV was the chair of the Department, and
Dr. Kiarash Shahlaie was the residency program director.
Ebinu was the on-call attending physician on July 24, 2020. Harsh’s and
Shahlaie’s expectation was that the on-call attending physician would attend morning
rounds with the medical residents.2 As even Ebinu acknowledges in his complaint,
2 In his response to the Regents separate statement, Ebinu stated this proffered fact
was disputed, but the trial court found the evidence he cited does not actually dispute the
proffered fact. A party opposing a motion for summary judgment must submit an
opposing separate statement that “unequivocally state[s]” whether each fact proffered by
the moving party is “disputed” or “undisputed.” (Cal. Rules of Court, rule 3.1350(f).)
For each proffered fact the opposing party contends is disputed, he or she is required to
“state … the nature of the dispute and describe the evidence that supports the position
that the fact is controverted. Citation to the evidence in support of the position that a fact
is controverted must include reference to the exhibit, title, page, and line numbers.” (Cal.
Rules of Court, rule 3.1350(f)(2), italics added.) The trial court found, “Plaintiff attempts
to, but does not, materially dispute the above UMFs [i.e., undisputed material facts 14,
15, 16, 17, 18, 19, 20, 21 proffered by the Regents].” Ebinu does not challenge — or
2
“[d]uring their on-call weeks, doctors usually meet each morning with residents for
‘rounds.’ ” As the Regents demonstrated, “On-call Attendings’ presence at morning
rounds is important for patient care, clinical treatment, and for training and supervising
the residents. The purposes of morning rounds are to ensure that everyone on the team is
aware of the treatment plan and that the Attending is guiding and supervising the
resident.” Harsh testified, “It was my opinion that the on-call attendings should be
present at morning rounds.” He explained, “That’s what the word means. … [T]he word
is attending, and it means that they will attend rounds. … And if they are not there, they
are not attending. They are not doing their job.” (Italics added.) He testified attendance
at rounds “was very important to both the patient care mission as well as teaching,” and it
was his “opinion that attendings had responsibility to the residents to teach and to oversee
patient care. And to the extent that that responsibility was not fulfilled by attendings who
did not attend rounds, they did not fulfill their responsibilities.” Shahlaie echoed this,
testifying that morning rounds have both a “clinical care” purpose and a “teaching”
purpose. He explained, “the purpose of morning rounds is for the group of physicians
and other health care providers that are responsible for patient care to review all of the
relevant clinical events and other relevant information as a team to provide oversight and
supervision, to develop a plan for each patient.” The purpose is also to “ensur[e] that
faculty on call are aware of all the relevant events and are providing guidance in helping
to develop the treatment plan.”
Although Ebinu was the on-call attending physician on July 24, he did not attend
morning rounds because he had agreed to meet with another physician during that time.
We pause here to note that Ebinu admits as much in his complaint. He alleges, however,
even mention — this finding, and we agree with it in any event. As the trial court noted,
although Ebinu stated he disputed many of the Regents’ proffered facts, the evidence he
cited does not actually show a dispute, and in several instances, he did not cite any
evidence.
3
that it was “not uncommon” for the on-call attending to miss rounds. He also alleges he
contacted the chief resident, Dr. Amir Goodharzi, the day before and “delegated” rounds
to him, and he spoke with the assigned junior resident at 5:30 a.m. that morning to
discuss any new patients and conditions. He alleges, “Both residents were fully prepared
and competent to conduct rounds,” and he informed them he would be in a meeting in a
nearby conference room and they could consult him if necessary. Regardless of his
reasons for doing so, however, it is undisputed Ebinu did not attend morning rounds on
July 24.
At around 11:40 a.m., the chief resident sent the following email to Shahlaie:
“Today we did not have either the Neurosurgery or NCC
attending present during rounds. The Neurosurgery attending
did tell me the night before that he had a meeting and he
checked in by phone before rounds but didn’t run the whole
list. [The on-call resident] Jared [Clouse] had to go to the OR
to sign out with him and it took nearly 40 minutes because the
attending was operating at the same time. …
“Jared who is post call is still here at noon finalizing plans.
Specifically with a list of 59 [patients] this am, it really helps
when we have attendings available on rounds to run consults
and ICU patients by.
“I thought I would let you know and see what the best way is
to give this feedback to the attendings about this.”
Shahlaie forwarded the chief resident’s email to Harsh, along with the following
note:
“FYI. I’ll look into this but also wanted you to be aware.
“Is it okay for me to send an email to the faculty reminding
them of this expectation (ncc and nsg), or would you prefer
that come from you?”
Harsh testified he thought it was his responsibility as Department chair to send a
reminder to all faculty about attendance at rounds. He was also concerned that the
4
attending’s absence on this particular occasion had disrupted the on-call resident’s
normal work flow and delayed patient handoffs, which had caused the resident to work
longer hours and be in violation of resident duty-hour restrictions. That night, Harsh thus
sent the following email to all Department clinical faculty:
“All:
“Today there was no cranial/spine attending or neurocritical
care attending to advise our residents in managing 59 patients
on the service.
“This is an abandonment of our responsibility to our residents
and our patients.
“We all share this responsibility; delinquency is unacceptable.
“If an emergency arises that prevents your attending 6 AM
rounds, please arrange a replacement.
“You may call me or someone else, but do not leave the
rounds unattended.
“Thank you very much,
“Griff”
It is this email that forms the basis of Ebinu’s defamation claim.3 He alleges that
although it does not mention him by name, it was public knowledge in the department
who was on call and responsible for attending rounds on any given day, and the recipients
thus would have known he was one of the attendings who was not at rounds that
morning. He also alleges the statements about the failure to attend rounds being an
“abandonment of our responsibility” and “delinquency [being] unacceptable” were
“malicious attacks on [his] integrity, professionalism, and character.”
3 Ebinu alleged in his complaint that Harsh sent a second defamatory email on
July 25, but then states in his opening brief that it is the July 24 email that “is the basis of
[his] claim for defamation,” and he never mentions the July 25 email in his briefs.
5
Based on the facts recounted above, the Regents moved for summary judgment on
three separate grounds: (1) on its face, the email does not contain any statements about
Ebinu; (2) the statements in the email are incapable of being proven false and are thus
nonactionable opinions; and (3) even if the statements could be proven false, the
defamation claim is barred by the common interest privilege. The trial court denied the
motion on the first two grounds and granted it on the third, finding the undisputed facts
established the claim was barred by the common interest privilege. Judgment was
entered in favor of the Regents, and Ebinu filed a timely notice of appeal.
DISCUSSION
1. Summary Judgment and the Standard of Review
“The purpose of the law of summary judgment is to provide courts with a
mechanism to cut through the parties’ pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) Summary judgment thus “ ‘look[s] behind the
pleadings to determine if the claims or defenses of a party are sham or without any
evidence to support the claim.’ ” (Little v. Community Bank (1991) 234 Cal.App.3d 355,
358.) “[T]he party moving for summary judgment bears the burden of persuasion that
there is no triable issue of material fact and that he is entitled to judgment as a matter of
law.” (Aguilar, at p. 850.) “A defendant … has met that party’s burden of showing that a
cause of action has no merit if the party has shown that one or more elements of the cause
of action … cannot be established, or that there is a complete defense to the cause of
action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to
show that a triable issue of one or more material facts exists as to the cause of action or a
defense thereto.” (Code Civ. Proc. § 437c, subd. (p)(2).) “Although the parties seeking
summary judgment bear the initial burden to support their motions with admissible
evidence showing there is no triable issue of material fact, once that showing has been
made the opposing party can only avoid summary adjudication by submitting competent
6
rebuttal evidence from which the court can infer these material facts are genuinely
disputed.” (Miller v. Nestande (1987) 192 Cal.App.3d 191, 197.) The party opposing the
motion “shall not rely upon the allegations or denials of its pleadings to show that a
triable issue of material fact exists.” (Code Civ. Proc, § 437c, subd. (p)(1), (p)(2).)
“There is a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion.” (Aguilar, at p. 850.)
“We review a grant of summary judgment de novo; we must decide independently
whether the facts not subject to triable dispute warrant judgment for the moving party as
a matter of law.” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) We view the
evidence in the light most favorable to the nonmoving party (here, Ebinu) and resolve
evidentiary doubts or ambiguities in his favor. (Saelzler v. Advanced Group 400 (2001)
25 Cal.4th 763, 768.) Although our review is de novo, we do not ignore the trial court’s
decision. Instead, that decision is presumed correct, and it is Ebinu’s burden to
affirmatively establish reversible error. (See Jameson v. Desta, supra, 5 Cal.5th at
pp. 608-609; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 535.) Finally, we may affirm
the trial court’s ruling “if it is correct on any ground, regardless of the trial court’s stated
reasons.” (Truck Ins. Exchange v. County of Los Angeles (2002) 95 Cal.App.4th 13, 20.)
2. Analysis
“ ‘ “Defamation is an invasion of the interest in reputation. The tort involves the
intentional publication of a statement of fact which is false, unprivileged, and has a
natural tendency to injure or which causes special damage.” ’ ” (Burrill v. Nair (2013)
217 Cal.App.4th 357, 382, disapproved on another ground in Baral v. Schnitt (2016)
1 Cal.5th 376, 391.) “[F]alse statements … tending directly to injure a plaintiff in respect
to his or her profession by imputing dishonesty or questionable professional conduct are
defamatory per se.” (Id. at p. 383; see also Slaughter v. Friedman (1982) 32 Cal.3d 149,
154 [statements that would tend “to injure plaintiff professionally” are actionable “if false
7
and unprivileged”]; Civ. Code, § 45 [“Libel is a false and unprivileged publication by
writing … which has a tendency to injure [a person] in his occupation”].)
Ebinu spends much of his opening brief arguing the July 24 email was defamatory
because it accused him of abandoning his responsibility to patients and residents and thus
injured him in his occupation. Similarly, he spends much of his reply brief arguing
criticisms of work performance can be defamatory, and he also argues it should be up to a
jury to decide whether the statements in the email were true or false. Even were we to
assume all of this to be true, it is irrelevant because the trial court did not grant the
motion for summary judgment on those grounds. Instead, it granted the motion solely on
the ground that the defamation claim was barred by the common interest privilege.
The common interest privilege is codified in Civil Code section 47, which
provides, “A privileged publication … is one made: [¶] … [¶] (c) In a communication,
without malice, to a person interested therein … by one who is also interested.” Analysis
of whether the privilege applies “involves a two-step inquiry.” (Mamou v. Trendwest
Resorts, Inc. (2008) 165 Cal.App.4th 686, 729.) First, the defendant has the burden of
demonstrating the statement falls within the privilege (i.e., it was made “to a person
interested therein … by one who is also interested”). (Noel v. River Hills Wilsons, Inc.
(2003) 113 Cal.App.4th 1363, 1369 (Noel).) Second, if the defendant meets its burden,
the plaintiff has the burden “ ‘of proving that defendant had made the statement with
malice.’ ” (Ibid.; see also Kao v. University of San Francisco (2014) 229 Cal.App.4th
437, 453 [“Where … the statements at issue are within the qualified privilege, the
plaintiff has the burden to establish that they were made with malice”].)
The privilege applies “where the communicator and the recipient have a common
interest and the communication is of a kind reasonably calculated to protect or further
that interest.” (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841,
846 (Deaile).) “Courts have consistently interpreted [Civil Code] section 47, subdivision
(c) to apply in the employment context.” (Noel, supra, 113 Cal.App.4th at p. 1369.) For
8
example, courts have held an employer and its employees have a common interest in
“clarifying [the employer’s] policies” in order to “prevent[] future abuses of those
policies.” (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986)
180 Cal.App.3d 985, 996 (Cuenca); see also King, supra, 152 Cal.App.4th at p. 440 [“an
employer and its employees have a common interest in protecting the workplace from
abuse”].) We have little trouble concluding that an employer and its employees have a
common interest in communications regarding the employer’s performance expectations,
and Harsh’s email to clinical employees outlining his expectations regarding attendance
at morning rounds thus falls squarely within the privilege.
We also find the privilege applies to the portion of the email that stated there was
no attending physician on morning rounds that day, that “[t]his is an abandonment of our
responsibility to our residents and our patients,” and that “delinquency is unacceptable”
— and this is true even if we assume everyone reading the email would know this
referred to Ebinu. Courts have held the privilege applies “to statements by management
and coworkers to other coworkers explaining why an employer disciplined an employee”
(McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538), to
statements “related to the reasons for plaintiff’s forced retirement” (Deaile, supra,
40 Cal.App.3d at p. 847), and to statements in the workplace “relating to the conduct” or
the “fitness” of an employee (Cuenca, supra, 180 Cal.App.3d at pp. 995, 996). In the
words of one court, “Clearly, an employer is privileged … 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.”
(Deaile, at p. 849.) And in an analogous case, an employee was fired for falsifying
timecards, and the court held the employer “had an interest in communicating the reason
9
for [the] termination to [other] employees” because “it wanted employees to aware of the
penalties for falsifying time records” and the communications were thus privileged.
(King, supra, 152 Cal.App.4th at pp. 440-441.) So, too, in this case. Harsh wanted to let
clinical faculty know that there was no attending at morning rounds that day, and to
remind faculty that attendings were expected to attend morning rounds and that the
failure to do so was unacceptable. In short, we find the email falls within the common
interest privilege.
Ebinu does not seriously suggest the email does not fall within the privilege.
Instead, his appeal is based on the second step of the privilege analysis — namely,
whether there is evidence the email “was motivated by malice.” (Cuenca, supra,
180 Cal.App.3d at p. 995.) “ ‘[M]alice focuses upon the defendant’s state of mind, not
his [or her] conduct.’ ” (Noel, supra, 113 Cal.App.4th at p. 1370.) “[T]he malice
necessary to defeat a qualified privilege is ‘actual malice.’ Such malice is established by
a showing that the publication was motivated by hatred or ill will toward the plaintiff or
by a showing that the defendant lacked reasonable grounds for belief in the truth of the
publication and therefore acted in reckless disregard of the plaintiff’s rights. [Citation.]
However, the lack of reasonable grounds requires more than mere negligence. Malice is
shown only when the negligence amounts to a reckless or wanton disregard for the truth,
so as to imply a willful disregard for, or avoidance of, accuracy.” (Hailstone v. Martinez
(2008) 169 Cal.App.4th 728, 740.)
Ebinu avers that malice is always a question of fact for the jury. Not so.
Summary judgment is proper if the defendant establishes “the defamatory statements
were made on a privileged occasion, and [the plaintiff] present[s] no evidence from
which a reasonable jury could infer malice.” (Noel, supra, 113 Cal.App.4th at pp. 1365-
1366; see also King, supra, 152 Cal.App.4th at p. 442 [summary judgment upheld where
the plaintiff “has not unveiled the quantum of evidence necessary to create a triable issue
that [the employer’s] decision makers acted with the requisite malice to sustain a
10
defamation claim”]; Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277,
1288 [“If there is insufficient evidence to sustain a finding of malice a trial is not
warranted” and summary judgment is proper]; Antonovich v. Superior Court (1991)
234 Cal.App.3d 1041, 1047 [where malice “is the pivotal issue in a defamation case,”
summary judgment is proper “if the opponent fails to present … evidence of actual
malice”].) Thus, unless Ebinu can point to evidence that would permit a reasonable jury
to find malice, the Regents are entitled to summary judgment.
Here, we pause to note that Ebinu has provided us with an extremely limited
record on appeal that includes none of the underlying papers filed in support of and
opposition to the motion for summary judgment. The Regents argue we should affirm
the judgment on the ground that Ebinu failed to provide us with an adequate record. We
could do so. (See Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 [“It is the burden
of the party challenging the judgment on appeal to provide an adequate record to assess
error”]; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416
[“ ‘if the record is inadequate for meaningful review, the appellant defaults and the
decision of the trial court should be affirmed’ ”].) However, because the Regents cured
the inadequacy by providing us with all of the underlying motion papers, we will address
the merits of Ebinu’s arguments. As we will explain, however, Ebinu’s failure to provide
us with an adequate record has consequences because it limits the evidence we consider
in determining whether there is a triable issue as to malice.
Other than the trial court’s tentative ruling and order granting the motion for
summary judgment and various notices related to the appeal, the only documents in the
appellant’s appendix are: (1) the complaint; (2) the allegedly defamatory July 24 email;
(3) two other emails Harsh sent on July 24; and (4) short excerpts from Harsh’s
deposition and the deposition of Dr. James Boggan, the former Department chair. The
complaint is not evidence of malice, however, because, as previously noted, a plaintiff
opposing a motion for summary judgment “shall not rely upon the allegations or denials
11
of its pleadings to show that a triable issue of material fact exists.” (Code Civ. Proc.,
§ 437c, subd. (p)(2).) “Citation to [the plaintiff’s] own pleading is meaningless: It is
fundamental that to defeat summary judgment a plaintiff must show ‘specific facts’ and
cannot rely on allegations in the complaint.” (Roman v. BRE Properties, Inc. (2015)
237 Cal.App.4th 1040, 1054.) We thus disregard the factual contentions in the opening
brief about conflicts between Ebinu and Harsh and events leading up to the July 24 email
because they are supported solely by citation to the complaint.4
The July 24 email also does not help Ebinu because, “In the case of the common
interest privilege, malice cannot be inferred from the communication itself.” (Hailstone
v. Martinez, supra, 169 Cal.App.4th at p. 740; see also Civ. Code, § 48 [“In the case
provided for in subdivision (c) of Section 47, malice is not inferred from the
communication”].)
Moreover, although the appellant’s appendix includes four other documents,
Ebinu cites only three of them when discussing malice: the two other emails from Harsh
and a short excerpt from Harsh’s deposition.5 Because these are the only documents he
cites, these are also the only documents we will consider in determining whether there is
sufficient evidence from which a jury could find malice. (See Yield Dynamics, Inc. v.
TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557 [to demonstrate error the appellant
must provide “citations to … relevant portions of the record”]; Nwosu v. Uba (2004)
4 We also disregard the factual contentions in the opening brief about conflicts and
tension between Harsh and Ebinu because they are not supported by any citation to the
record. (Lee v. Department of Parks & Recreation (2019) 38 Cal.App.5th 206, 213 [“We
may disregard any factual contention not supported by a proper citation to the record”];
Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520 [same].)
5 Ebinu cites Boggan’s deposition testimony, but only to support his argument that
the email was defamatory because it contained implied criticism of his performance, and
as we noted above, the trial court did not grant the motion on that ground. He does not
cite Boggan’s testimony to support his arguments regarding malice.
12
122 Cal.App.4th 1229, 1246 [“ ‘[i]f a party fails to support an argument with the
necessary citations to the record, … the argument [will be] deemed to have been
waived’ ”].) To put it another way, we will not independently “comb the record
[provided by the Regents] looking for the evidence or absence of evidence” of malice,
and we will limit ourselves to considering only the three pieces of evidence cited by
Ebinu. (People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 879.) Those three
pieces of evidence are as follows.
First, shortly after Shahlaie forwarded Harsh the email from the chief resident
about the lack of an attending at morning rounds, Harsh sent an email asking, “Was it
Ebinu?” and Shahlaie responded, “Yes.”
Second, Harsh was asked during his deposition why he wrote “Was it Ebinu?” and
he responded, “I had the impression from my lack of overlap with him during call that he
was one of the major non-compliers with that expectation [i.e., that on-call attendings
would attend rounds].” Upon further questioning, Harsh stated, “In that I had never seen
him at rounds, I was curious. I had a sense that he was a or maybe the most prominent
non-complier, so that was a reasonable guess.”
And third, on the afternoon of July 24, Harsh sent an email to Colleen Clancy, the
Associate Vice Chancellor for Academic Personnel, with a copy to Boggan. The subject
of the email is “Confidential – Ebinu,” and it states, in full:
“Hi, Colleen:
“Problems in all realms persist/worsen:
“Education – the worst evaluation scores in the department –
by @ 4 s.d.
13
“Service – failing to show up for on call rounds, disrupting
patient care and residents duty hours/wellness (see below
from our Chief Resident)[6]
“Research/academic productivity – none
“Clinical care – low wRVUs for a spine surgeon; according to
our staff, his long clinic wait list reflects his unique barriers to
patient visits.
“You, Jim [Boggan], others and I have done about all we can
to turn thus [sic] trajectory.
“Unless you have other ideas, I think I need to end this
gracefully.
“Please give me your thoughts.”
Ebinu argues this evidence demonstrates malice because it shows Harsh was
predisposed to think of the worst of him and wanted to fire him. Even viewed
collectively, we find this evidence is insufficient to raise a triable issue as to malice.
At best, the first two pieces of evidence demonstrate Harsh correctly guessed that
Ebinu was one of the attendings who prompted the chief resident’s email to Shahlaie.
Again, the chief resident emailed Shahlaie to complain, “[t]oday we did not have either
the Neurosurgery or NCC attending present during rounds,” to explain why “it really
helps when we have attendings available on rounds to run consults and ICU patients by,”
and to ask, “what the best way is to give this feedback to the attendings about this,” and
Shahlaie forwarded this email to Harsh. Ebinu fails to cite any legal authority for the
proposition that correctly identifying one of the no-shows about whom the chief resident
complained is evidence of Harsh’s predisposition to malice.
The leaves Harsh’s email to Clancy identifying “[p]roblems” with, or criticisms
of, Ebinu’s performance. Ebinu states one of the criticisms (his “failure to publish
6 The “see below” refers to the email from the chief resident, which Harsh included
in his email to Clancy.
14
academic research papers”) is “demonstrably false,” but he cites no evidence to support
this statement and we thus disregard it. He also never mentions the other criticisms, and
in any event points to no evidence demonstrating they were unfounded. Without such
evidence, Harsh’s email shows only that he had criticism of Ebinu’s performance, not
that he harbored “hatred or ill will” towards Ebinu. (Noel, supra, 113 Cal.App.4th at
p. 1370 [“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”].) We hold that Harsh’s criticisms of Ebinu’s performance — standing
alone and without more — are insufficient to show malice.
Compare this case to Agarwal v. Johnson (1979) 25 Cal.3d 932, disapproved on
other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, footnote 4. There,
the plaintiff sued his former employer for defamation based on statements to other
employees that he was terminated for “ ‘lack of job knowledge and cooperation.’ ”
(Agarwal, at p. 944.) After being instructed on the common interest privilege, the jury
returned a verdict for the plaintiff, and the defendants appealed, arguing there was
insufficient evidence of malice, but the Court of Appeal and the Supreme Court disagreed
and affirmed the verdict. (Id. at pp. 938, 944.) The plaintiff presented evidence that no
one at the company had expressed any dissatisfaction with or criticisms of his job
knowledge or cooperation until the last two days of his employment, when he had been
given a new assignment to work for Max French; French admitted he had never
terminated an employee who had been in his department for such a short time; French’s
deposition testimony contradicted his trial testimony that the plaintiff refused to work for
him (id. at p. 945); the day after the new assignment had been made French became
“outraged” with plaintiff called him the n-word and said he was a “ ‘member of an
inferior race’ ”; later that day, the plaintiff called French but French said he did not want
to talk and hung up the telephone; and still later that day, French called the plaintiff into
his office and said “ You son-of-a-bitch, I am going to terminate you.’ ” (Id. at pp. 941-
15
942.) The court found this evidence, “coupled with” the plaintiff’s “consistent denials of
the charges of poor performance and insubordination, could lead the jury to believe that
the statements of lack of job knowledge and lack of cooperation were maliciously
motivated.” (Id. at p. 945.) Simply put, Ebinu points to no similar evidence in this case.
None of Ebinu’s other arguments about malice are convincing, primarily because
he simply cites cases without explaining how they are applicable here, and “citing cases
without any discussion of their application to the present case results in forfeiture.”
(Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) For example, he quotes the
following from Larrick v. Gilloon (1959) 176 Cal.App.2d 408, 416, disapproved on
another ground in Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 114,
footnote 4: “ ‘Malice may be proved by extrinsic evidence showing that the defendant
bore a long-standing grudge against the plaintiff, [or] that there were former disputes
between them … . Any previous quarrel, rivalry or ill-feeling between plaintiff and
defendant — in short, almost everything defendant has ever said or done with reference
to the plaintiff — may be urged as evidence of malice.’ ” That quote is the extent of his
‘argument’ about Larrick. Moreover, he points to no evidence that suggests Harsh bore a
long-standing grudge against him or that there were previous disputes, quarrels, rivalries,
or ill-feelings between them.
He also quotes the following from Shumate v. Johnson Pub. Co. (1956)
139 Cal.App.2d 121, 138: “ ‘ “The manner of statement is material upon the question of
malice, and if the facts believed to be true are exaggerated, overdrawn, or colored to the
detriment of plaintiff, or are not stated fully and fairly with respect to the plaintiff, the
court or jury may properly consider these circumstances as evidence tending to prove
actual malice.” ’ ” Shumate, however, did not involve the common interest privilege (or
any privilege for that matter), and its discussion of malice concerned the malice necessary
to support an award of punitive damages, not the malice necessary to defeat the common
interest privilege. (See id. at p. 135.) In any event, Ebinu fails to offer any argument or
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cite any evidence that would show the July 24 email was “exaggerated, overdrawn, or
colored” to his detriment or was not stated fully and fairly.
Ebinu also cites several cases for the proposition that the failure to investigate may
constitute evidence of malice, but he fails to explain how these cases are applicable here.
Again, “citing cases without any discussion of their application to the present case results
in forfeiture.” (Allen v. City of Sacramento, supra, 234 Cal.App.4th at p. 52.) We also
note three of the cases he cites discuss malice in the First Amendment context, not the
malice necessary to defeat the common interest privilege. And the one case he cites that
does discuss the malice necessary to defeat the common interest privilege held, “ ‘mere
negligence in investigation of the facts … is not alone enough to constitute malice.’ ”
(Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 424, disapproved on another
ground in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738.) And again:
“ ‘The failure to conduct a thorough and objective investigation, standing alone, does not
prove actual malice, nor even necessarily raise a triable issue of fact on that
controversy.’ ” (King v. U.S. Bank National Assn. (2020) 53 Cal.App.5th 675, 701.) “ ‘It
is only when the negligence [i.e., in conducting an investigation] amounts to a reckless or
wanton disregard for the truth, so as to reasonably imply a wilful disregard for or
avoidance of accuracy, that malice is shown.’ ” (Rollenhagen, at p. 424.) The three
documents Ebinu cites are not sufficient to suggest a reckless or wanton disregard for the
truth on Harsh’s part.
We end with a quote from another defamation case upholding summary judgment
based on the common interest privilege, because we find it is equally applicable here:
“We do not know, and cannot determine, whether plaintiff was guilty of the malfeasance
as alleged. But his factual innocence or guilt is beyond the purview of this appeal. He
has not unveiled the quantum of evidence necessary to create a triable issue that [Harsh]
acted with the requisite malice to sustain a defamation claim. In the absence of malice,
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[Harsh’s] statements to other employees were privileged and plaintiff cannot recover for
defamation.” (King, supra, 152 Cal.App.4th at p. 442.)
DISPOSITION
The judgment is affirmed and the Regents shall recover their costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/
EARL, P. J.
We concur:
/s/
RENNER, J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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