Tervinder Singh Miglani v. Edwards Lifesciences Llc et al

NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Third Cause of Action for Defamation

C.D. Cal.April 3, 2017

DEFENDANT’S NOTICE OF MOTION TO DISMISS UNDER 12(B)(6) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN L. BERRY (SB# 101576) stephenberry@paulhastings.com BLAKE R. BERTAGNA (SB# 273069) blakebertagna@paulhastings.com PAUL HASTINGS LLP 695 Town Center Drive Seventeenth Floor Costa Mesa, California 92626-1924 Telephone: 1(714) 668-6200 Facsimile: 1(714) 979-1921 Attorneys for Defendants EDWARDS LIFESCIENCES LLC and CINDY NO UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TERVINDER SINGH MIGLANI, an individual, Plaintiff, vs. EDWARDS LIFESCIENCES, LLC a Limited Liability Company; CINDY P. NO, an individual and DOES 1-25, inclusive, Defendants. CASE NO. 8:17-cv-00418 NOTICE OF MOTION TO DISMISS PLAINTIFF’S THIRD CAUSE OF ACTION FOR DEFAMATION BY DEFENDANT CINDY NO [FED. R. CIV. P. 12(B)(6)] Date: May 12, 2017 Time: 2:30 p.m. Ctrm.: 10A Judge: Josephine L. Staton Case 8:17-cv-00418-JLS-DFM Document 12 Filed 04/03/17 Page 1 of 2 Page ID #:68 - 1 - DEFENDANT’S NOTICE OF MOTION TO DISMISS UNDER 12(B)(6) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFF TERVINDER MIGLANI AND TO HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE that on May 12, 2017 at 2:30 p.m., or as soon thereafter as the matter may be heard, in Courtroom 10A of the Ronald Reagan Federal Building and United States Courthouse, located at 411 W. Fourth Street, Santa Ana, CA, 92701, before the Josephine L. Staton, defendant Cindy No will and hereby does move this Court to dismiss the third cause of action for defamation of plaintiff’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This motion is and will be made on the ground that plaintiff has not pleaded and cannot plead facts establishing his cause of action for defamation under the pleading standards articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). This motion is based upon this notice of motion and motion; the memorandum of points and authorities filed concurrently herewith; the pleadings and all other papers on file herein; and such other written and oral argument as may be presented to the Court at or before the hearing on this motion. This motion is made following the conference of counsel pursuant to Local Rule 7-3. DATED: April 3, 2017 PAUL HASTINGS LLP By: /s/ Blake R. Bertagna BLAKE R. BERTAGNA Attorneys for Defendants EDWARDS LIFESCIENCES LLC and CINDY NO Case 8:17-cv-00418-JLS-DFM Document 12 Filed 04/03/17 Page 2 of 2 Page ID #:69 MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN L. BERRY (SB# 101576) stephenberry@paulhastings.com BLAKE R. BERTAGNA (SB# 273069) blakebertagna@paulhastings.com PAUL HASTINGS LLP 695 Town Center Drive Seventeenth Floor Costa Mesa, California 92626-1924 Telephone: 1(714) 668-6200 Facsimile: 1(714) 979-1921 Attorneys for Defendants EDWARDS LIFESCIENCES LLC and CINDY NO UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TERVINDER SINGH MIGLANI, an individual, Plaintiff, vs. EDWARDS LIFESCIENCES, LLC a Limited Liability Company; CINDY P. NO, an individual and DOES 1-25, inclusive, Defendants. CASE NO. 8:17-cv-00418 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CINDY NO’S MOTION TO DISMISS PLAINTIFF’S THIRD CAUSE OF ACTION FOR DEFAMATION [FED. R. CIV. P. 12(B)(6)] Date: May 12, 2017 Time: 2:30 p.m. Ctrm.: 10A Judge: Josephine L. Staton Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 1 of 14 Page ID #:70 TABLE OF CONTENTS Page - i - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION ........................................................................................... 1 II. ALLEGATIONS RELEVANT TO THIS MOTION ...................................... 2 III. REQUIRED PLEADING STANDARDS ....................................................... 3 IV. PLAINTIFF’S DEFAMATION CLAIM FAILS AS A MATTER OF LAW BECAUSE IT IS DEVOID OF SUFFICIENT FACTUAL ALLEGATIONS TO MAKE IT PLAUSIBLE ............................................... 4 A. Plaintiff Merely Recites The Elements Of Defamation ........................ 4 B. Plaintiff’s Defamation Claim Is Devoid Of Any Factual Content That Plausibly Gives Rise To An Entitlement To Relief ..................... 6 V. CONCLUSION ............................................................................................. 10 Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 2 of 14 Page ID #:71 - ii - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Abiola v. ESA Mgmt., LLC, 2014 WL 988928 (N.D. Cal. Mar. 3, 2014) .......................................................... 9 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................................... passim Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................ 1, 4, 6, 10 Biolase, Inc. v. Fotona Proizvodnja Optoelektronskih Naprav D. D., 2014 WL 12579802 (C.D. Cal. June 4, 2014) ....................................................... 7 Brown v. Allstate Ins. Co., 17 F. Supp. 2d 1134 (S.D. Cal. 1998) ................................................................. 10 Charlson v. DHR Int’l Inc., 2014 WL 4808851 (N.D. Cal. Sept. 26, 2014) ................................................... 6-7 Doe v. United States, 58 F.3d 494 (9th Cir. 1995) ................................................................................... 1 Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822 (9th Cir. 2008) ................................................................................. 8 Johnson v. Haight Ashbury Med. Clinics, Inc., 2012 WL 629312 (N.D. Cal. Feb. 27, 2012) ......................................................... 7 Jones v. Thyssenkrupp Elevator Corp., 2006 WL 680553 (N.D. Cal. 2006) ....................................................................... 9 Kacludis v. GTE Sprint Commc’ns Corp., 806 F. Supp. 866 (N.D. Cal. 1992) .................................................................... 8, 9 King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426 (2007) ................................................................................ 8 London v. Sears, Roebuck & Co., 619 F. Supp. 2d 854 (N.D. Cal. 2009) ................................................................... 8 Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 3 of 14 Page ID #:72 - iii - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lundquist v. Reusser, 7 Cal. 4th 1193 (1994) ........................................................................................... 9 Papasan v. Allain, 478 U.S. 265 (1986) .............................................................................................. 3 Price v. Stossel, 620 F.3d 992 (9th Cir. 2010) ................................................................................. 4 Ringler Assocs. Inc. v. Md. Cas. Co., 80 Cal. App. 4th 1165 (2000) ................................................................................ 4 Robomatic, Inc. v. Vetco Offshore, 225 Cal. App. 3d 270 (1990) ................................................................................. 9 Roland-Warren v. Sunrise Senior Living, Inc., 2009 WL 2406356 (S.D. Cal. Aug. 4, 2009) ........................................................ 7 SDV/ACCI, Inc. v. AT&T Corp., 522 F.3d 955 (9th Cir. 2008) ................................................................................. 8 Townsend v. Chase Bank USA N.A., 2009 WL 426393 (C.D. Cal. Feb. 15, 2009) aff’d, 445 Fed. App’x. 920 (9th Cir. 2011) ................................................................................................ 7 Woodson v. State of California, 2016 WL 6568668 (E.D. Cal. Nov. 4, 2016) ........................................................ 6 Statutes Cal. Civ. Code § 46 ..................................................................................................... 5 Cal. Civ. Code § 47(c) ................................................................................................ 8 Other Authorities Fed. R. Civ. P. 8(a)(2) ................................................................................................. 3 Fed. R. Civ. P. 12(b)(6) ...................................................................................... 3, 4, 7 Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 4 of 14 Page ID #:73 - 1 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff Tervinder Miglani (“Plaintiff”) was terminated from his employment with defendant Edwards Lifesciences LLC (“Edwards”) for insubordination after he disregarded his manager’s denial of his request to take vacation time off due to pressing business requirements, and went off on the vacation anyway. Plaintiff’s response was to file this three-count lawsuit, alleging causes of action for wrongful termination and retaliation (first and second counts) against Edwards, and a cause of action for defamation (third count) against Edwards and the manager who denied his vacation request, defendant Cindy No (“Ms. No,” or collectively with Edwards, “Defendants”). While Defendants deny that any of Plaintiff’s claims have merit, this motion to dismiss addresses only Plaintiff’s fatally defective defamation claim. Plaintiff’s third cause of action consists solely of conclusory allegations of the elements of a cause of action for defamation, and the vague allegation that Ms. No “circulated false and slanderous statements orally that plaintiff had taken an authorized [sic] vacation after verbally being told twice that his vacation would not be authorized.” Plaintiff fails to identify the parties to whom Ms. No allegedly published the defamatory statement, where and when the allegedly defamatory statement was published, how he was injured by the statement, or facts establishing malice. Such a threadbare recital of the elements of defamation is insufficient as a matter of law to satisfy the pleading standards articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Because Plaintiff has not pleaded and cannot plead facts establishing his cause of action for defamation, this motion should be granted.1 1 See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (a court should deny leave to amend if the pleading cannot be cured by the allegation of additional facts). Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 5 of 14 Page ID #:74 - 2 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ALLEGATIONS RELEVANT TO THIS MOTION In support of his third cause of action, Plaintiff alleges:  Edwards, a manufacturer of medical devices, previously employed Plaintiff as Principal Project Manager. Compl., ¶¶ 1, 2, 5.  Plaintiff monitored Edwards’ compliance with a provision of Dodd- Frank that requires publicly traded companies to conduct due diligence of their supply chains for the presence of conflict minerals, and if identified, to report their presence to the Securities and Exchange Commission. Id., ¶ 7.  While conducting his assessment of Edwards’ compliance, Plaintiff “discovered gaps and inaccuracies in the supplier vetting and reporting process which had been previously managed by his immediate supervisor.” Id., ¶ 8.  Plaintiff “complained and objected to [Ms. No] about this serious potential problem and was terminated shortly thereafter for a false reason.” Id.  Ms. No, “[t]o secure Plaintiff’s wrongful termination, . . . circulated false and slanderous statements orally that plaintiff had taken an [un]authorized vacation after verbally being told twice that his vacation would not be authorized.” Id., ¶ 16.  “The defamatory publications consisted of knowingly false and unprivileged communications, tending directly to injure Plaintiff and Plaintiff’s reputation in his profession or trade.” Id., ¶ 17.  “Defendants . . . conspired to, and in fact did, negligently, recklessly, and intentionally caused publication of defamation, of and concerning Plaintiff, to third persons.” Id. Plaintiff’s allegations fail to satisfy federal pleading standards. Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 6 of 14 Page ID #:75 - 3 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. REQUIRED PLEADING STANDARDS Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,2 a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the … claim is and the grounds upon which it rests.” Rule 12(b)(6) requires dismissal of a complaint if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss under Rule 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570) (emphasis added). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, the complaint must produce an inference of liability strong enough to nudge the plaintiff’s claims “across the line from conceivable to plausible.” Id. at 680 (quoting Twombly, 550 U.S. at 570). A court need not, however, accept the legal conclusions drawn from the facts as true. Id. at 678-79; see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (stating that on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”). Satisfying this “context-specific” test does not require “detailed factual allegations,” but it requires more than the unadorned “the-defendant-unlawfully- harmed-me-accusation.” Id. at 679. The complaint must also contain more than “labels and conclusions,” “formulaic recitation of the elements of a cause of action,” “naked assertion[s]’ devoid of ‘further factual enhancement,’” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555, 557). 2 Hereafter, all references to the Federal Rules of Civil Procedure will be cited as “Rule [No.].” Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 7 of 14 Page ID #:76 - 4 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Iqbal outlines a two-step approach for a Rule 12(b)(6) motion: First, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. Then, a court must consider the factual allegations - if any - and “determine whether they plausibly give rise to an entitlement for relief.” Id. In short, a plaintiff must plead some factual content to support the legal conclusions he ultimately seeks to establish. Where the well-pleaded facts “do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - has not ‘show[n]’ - ‘that the pleader is entitled to relief,’” and the plaintiff’s complaint must be dismissed. Id. (quoting Rule 8(a)(2)). IV. PLAINTIFF’S DEFAMATION CLAIM FAILS AS A MATTER OF LAW BECAUSE IT IS DEVOID OF SUFFICIENT FACTUAL ALLEGATIONS TO MAKE IT PLAUSIBLE A. Plaintiff Merely Recites The Elements Of Defamation To state a cause of action for defamation the plaintiff must plead facts showing that the defendant (1) published a statement of fact that was (2) false, (3) unprivileged, and (4) had a natural tendency to injure or which caused special damage. See Price v. Stossel, 620 F.3d 992, 998 (9th Cir. 2010). Publication, written or oral, is a communication to a third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Ringler Assocs. Inc. v. Md. Cas. Co., 80 Cal. App. 4th 1165, 1179 (2000). Plaintiff cannot defeat a motion to dismiss with bare legal assertions. Twombly made it amply clear that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). So a court must first identify and disregard such conclusory allegations. Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 8 of 14 Page ID #:77 - 5 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Plaintiff asserts numerous bare legal conclusions in support of his defamation claim. Specifically he alleges that:  “The defamatory publications consisted of knowingly false and unprivileged communications, tending directly to injure Plaintiff and Plaintiffs reputation in his profession or trade. These publications included false and defamatory statements (in violation of California Civil Code section 46).” (Compl., ¶ 17.)  “Defendants, by the herein-described acts, conspired to, and in fact did, negligently, recklessly, and intentionally caused publications of defamation, of and concerning Plaintiff, to third persons.” (Id., ¶ 18.)  “The defamatory publications consisted of knowingly false and unprivileged communications, tending directly to injure Plaintiff and Plaintiffs personal, business, and professional reputation. These publications included false and defamatory statements (in violation of California Civil Code section 46.)” (Id., ¶ 19.)  “None of Defendants’ defamatory publications against Plaintiff referenced above are true. Moreover, the defamatory statements were understood as assertions of fact, and not as opinion.” (Id., ¶ 20.)  “The defamatory publications (as set forth above) were negligently, recklessly, and intentionally published in a manner equaling malice and abuse of any alleged conditional privilege (which Plaintiff denies exists), since the publications, and each of them, were made with hatred, ill will, and an intent to vex, harass, annoy, and injure Plaintiff.” (Id., ¶ 21.)  “The above complained-of publications by Defendants were made with hatred and ill will towards Plaintiff and the design and intent to injure Plaintiff, Plaintiff’s good name, his reputation, employment and employability.” (Id., ¶ 23.) Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 9 of 14 Page ID #:78 - 6 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In sum, the third cause of action almost exclusively consists of the conclusory allegations that Ms. No negligently, recklessly, and intentionally published defamatory statements, and generally avers that Plaintiff has been injured by the alleged statements. Virtually no factual predicate for the claims is specified. As Iqbal held, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. B. Plaintiff’s Defamation Claim Is Devoid Of Any Factual Content That Plausibly Gives Rise To An Entitlement To Relief Iqbal requires a court, after setting aside all legal conclusions, to test the sufficiency of any factual content and determine whether they give rise to an entitlement to relief. In essence, to survive a motion to dismiss, “[f]actual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Even if the Court were to credit Plaintiff’s allegations as “well-pleaded facts,” they still fall far short of the requirement that a claim for relief be stated. Plaintiff has not alleged facts with enough specificity to support a viable defamation claim. “Under California law, both the substance of the allegedly defamatory statements as well as the context in which the statements were allegedly made must be identified.” Woodson v. State of California, 2016 WL 6568668, at *6 (E.D. Cal. Nov. 4, 2016) (emphasis added) (dismissing defamation claim, in part, because the plaintiff failed to state “when the alleged defamatory statements were published” and “to whom they were made”). Plaintiff completely fails to identify when the alleged defamatory statements were published, where they were made, or to whom they were made. He also fails to allege how the alleged defamatory statement injured him. Courts routinely dismiss defamation claims in the absence of such core allegations. See, e.g., Charlson v. DHR Int’l Inc., 2014 WL 4808851, at *7 (N.D. Cal. Sept. 26, 2014) (granting the defendant’s motion to dismiss, in part, because the complaint fails to Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 10 of 14 Page ID #:79 - 7 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allege “some indication as to the identity of the person or persons to whom the defamatory statements were made”); Johnson v. Haight Ashbury Med. Clinics, Inc., 2012 WL 629312, at *4 (N.D. Cal. Feb. 27, 2012) (dismissing defamation claim because the plaintiff failed to articulate what statements were made, how they were defamatory, or how they injured him or his reputation); Townsend v. Chase Bank USA N.A., 2009 WL 426393 (C.D. Cal. Feb. 15, 2009) aff’d, 445 Fed. App’x. 920 (9th Cir. 2011) (concluding that the plaintiff failed to state a claim for defamation under Rule 12(b)(6) because the plaintiff “fail[ed] to allege which defendant made the allegedly defamatory statements and to which other defendants or third parties the allegedly defamatory statements were made”). These omissions are fatal to Plaintiff’s defamation claim for several reasons. First, in the absence of the requisite specific allegations, neither Ms. No nor the Court can determine whether the statements constitute defamation as a matter of law or whether they were privileged. In short, the assertions fail to put Ms. No and the Court on notice of the factual underpinnings of his defamation claim. See Roland-Warren v. Sunrise Senior Living, Inc., 2009 WL 2406356, at *8 (S.D. Cal. Aug. 4, 2009) (dismissing the defamation claim because the complaint “does not identify the time, place, particular speakers, or recipients of these statements” and “[t]he court cannot determine whether the statements were intended as opinion or fact or whether they were privileged”). Second, Plaintiff’s deficient allegations deprive Ms. No of the ability to defend herself. See Biolase, Inc. v. Fotona Proizvodnja Optoelektronskih Naprav D. D., 2014 WL 12579802, at *5 (C.D. Cal. June 4, 2014) (dismissing defamation claim in absence of allegations about where the alleged statements were made, when they were made, or “to whom they made them”; “allegations don’t give enough notice about the conduct complained of to enable Defendants to defend themselves”). Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 11 of 14 Page ID #:80 - 8 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The resulting prejudice from Plaintiff’s failure to plead the required facts is particularly strong given that the alleged defamation occurred in the context of an employee termination. The common interest privilege protects a publication if it is made without malice and “the communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 826-27 (9th Cir. 2008); Cal. Civ. Code § 47(c). The common interest privilege also extends to parties that share a business or organizational relationship. SDV/ACCI, Inc. v. AT&T Corp., 522 F.3d 955 (9th Cir. 2008). Accordingly, communications by an employer relating to the reasons for termination of a current or former employee are subject to a qualified privilege under California Civil Code section 47(c). See King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426, 440 (2007) (common interest privilege insulated UPS against defamation claim by employee terminated for timecard falsification); see also London v. Sears, Roebuck & Co., 619 F. Supp. 2d 854, 865 (N.D. Cal. 2009) (defendant’s statements to plaintiff and her co-employees that plaintiff had violated its employee discount policy were protected by the common interest privilege). Here, Plaintiff alleges that the purported defamatory statement was made in conjunction with Plaintiff’s termination. As such, discussions or statements that were made about Plaintiff’s conduct in the context of the termination decision are potentially privileged. To assess the applicability of the privilege, however, Plaintiff must provide Ms. No with specific facts, including the recipient of the alleged defamatory statement. He only vaguely alleges that Ms. No made the allegedly false statement sometime and somewhere to unspecified “third persons.”3 3 The manager’s privilege may also apply. See Kacludis v. GTE Sprint Commc’ns Corp., 806 F. Supp. 866, 872 (N.D. Cal. 1992) (concluding that the plaintiff’s defamation claim against a supervisor who fired the plaintiff was within the scope of the manager’s privilege under California law). Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 12 of 14 Page ID #:81 - 9 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Third, assuming a privilege were to apply, the plaintiff bears the burden of proving malice. Lundquist v. Reusser, 7 Cal. 4th 1193, 1203 (1994). To defeat the conditional privilege, Plaintiff must allege specific facts: “A general allegation of malice will not suffice; plaintiff must allege detailed facts showing defendant's ill will towards [her].” Robomatic, Inc. v. Vetco Offshore, 225 Cal. App. 3d 270, 276 (1990). Accordingly, “[t]o state a claim for defamation, . . . Plaintiff must allege facts sufficient to support a reasonable inference that the statements that were published were false and that they were not privileged because they were made with malice.” Abiola v. ESA Mgmt., LLC, 2014 WL 988928, at *9 (N.D. Cal. Mar. 3, 2014) (granting the defendant’s motion to dismiss for failure to include allegations sufficient to show malice). Mere allegations that statements were made “with malice” or with “no reason to believe the statements were true” are insufficient to show “malice.” See, e.g., Kacludis v. GTE Sprint Communications Corp., 806 F. Supp. 866, 872 (N.D. Cal. 1992) (supervisor’s disparaging remarks to coworkers regarding plaintiff's qualifications were presumptively privileged; mere allegation that statements were made “with malice” was insufficient to rebut the presumption). Plaintiff must plead specific facts “sufficient to rebut the presumptive privilege.” Id. Here, Plaintiff has not pleaded any facts establishing malice, let alone the required specific facts. Plaintiff’s generalized allegations of malice by a supervisor in connection with a termination of employment are appropriate for dismissal. See Jones v. Thyssenkrupp Elevator Corp., 2006 WL 680553, *6 (N.D. Cal. 2006) (dismissing defamation claim because alleged statements made between supervisors and employees in connection with plaintiff’s conduct in the workplace were presumed to be privileged and plaintiff failed to plead specific facts sufficient to rebut the presumptive privilege). Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 13 of 14 Page ID #:82 - 10 - MEMO OF P&AS ISO DEFENDANT NO’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION Twombly and Iqbal instruct that simply raising a conceivable or a conceptual possibility of misconduct without some factual predicate is insufficient to survive a motion to dismiss. Plaintiff’s conclusory, minimalist allegations do not support a reasonable inference that Defendants are liable for defamation as a matter of law. Because Plaintiff has not “nudged [his defamation claim] across the line from conceivable to plausible” (Twombly, 550 U.S. at 570), this motion should be granted and the third cause of action dismissed.4 DATED: April 3, 2017 PAUL HASTINGS LLP By: /s/ Blake R. Bertagna BLAKE R. BERTAGNA Attorneys for Defendants EDWARDS LIFESCIENCES LLC and CINDY NO 4 As a corporation, Edwards “cannot make a statement for the purposes of defamation law.” Brown v. Allstate Ins. Co., 17 F. Supp. 2d 1134, 1139 (S.D. Cal. 1998) (applying California law). Because Plaintiff has failed to allege the identity of any individual who made a defamatory statement other than Ms. No, with the dismissal of the third count against Ms. No, the third cause of action must also be dismissed against Edwards. See id. (granting the company’s motion to dismiss defamation claim based on the plaintiff’s failure to allege the identity of any individual who made a defamatory statement). Case 8:17-cv-00418-JLS-DFM Document 12-1 Filed 04/03/17 Page 14 of 14 Page ID #:83 [PROPOSED] ORDER GRANTING MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TERVINDER SINGH MIGLANI, an individual, Plaintiff, vs. EDWARDS LIFESCIENCES, LLC, a Limited Liability Company; CINDY P. NO, an individual and DOES 1-25, inclusive, Defendants. CASE NO. 8:17-cv-00418 [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S THIRD CAUSE OF ACTION FOR DEFAMATION Case 8:17-cv-00418-JLS-DFM Document 12-2 Filed 04/03/17 Page 1 of 3 Page ID #:84 - 1 - [PROPOSED] ORDER GRANTING MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The motion of defendant Cindy No to dismiss plaintiff’s third cause of action for defamation came on regularly before the Court for decision. The Court, having read and considered all of the papers submitted in support of the motion and in opposition thereto, and the oral arguments of counsel to the extent the Court held a hearing, and the entire record in this action, and the matter having been duly considered, IT IS HEREBY ORDERED that: 1. Defendant No’s Motion is GRANTED; and 2. Plaintiff’s Third Cause of Action for defamation is dismissed as against both defendant No and defendant Edwards Lifesciences LLC. DATED: May ___, 2017 HON. JOSEPHINE L. STATON United States District Judge Case 8:17-cv-00418-JLS-DFM Document 12-2 Filed 04/03/17 Page 2 of 3 Page ID #:85 - 2 - [PROPOSED] ORDER GRANTING MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Submitted by: PAUL HASTINGS LLP By: __/s/ Blake R. Bertagna_____ BLAKE R. BERTAGNA Case 8:17-cv-00418-JLS-DFM Document 12-2 Filed 04/03/17 Page 3 of 3 Page ID #:86