NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 27 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL A. KAUFMAN, M.D., No. 12-55507
Plaintiff - Appellant, D.C. No. 8:11-cv-00382-AG-MLG
v.
MEMORANDUM*
UNITEDHEALTH GROUP
INCORPORATED, a corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 6, 2013
Pasadena, California
Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.
Plaintiff-Appellant Dr. Michael Kaufman appeals from the district court’s
order granting summary judgment in favor of Defendants-Appellees United
Healthcare Services, Inc., UnitedHealth Group Incorporated, and Optumhealth
Care Solutions, Inc. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Kaufman’s appeal focuses on his defamation claim. Under California law,
“[t]he tort of defamation involves (a) a publication that is (b) false, (c) defamatory,
and (d) unprivileged, and that (e) has a natural tendency to injure or that causes
special damage.” Taus v. Loftus, 151 P.3d 1185, 1209 (Cal. 2007) (internal
quotation marks and citation omitted). The district court concluded that the
defendants’ allegedly defamatory statements were privileged. We agree.
Under California’s statutory common interest privilege, “[a] privileged
publication or broadcast is one made . . . [i]n a communication, without malice, to
a person interested therein [ ] by one who is also interested . . . .” Cal. Civ. Code
§ 47(c). The California Supreme Court has set out a two-part framework for
applying the common interest privilege: “If section 47[c] applies to the occasion on
which a communication is made and if it was made without malice, it is privileged
and cannot constitute a defamation under California law.” Brown v. Kelly Broad.
Co., 771 P.2d 406, 411–12 (Cal. 1989) (in bank) (emphasis in original).
First, the common interest privilege applies to the communications in this
case. The California appellate courts have consistently held that communications
within a company about the reasons for an employee’s termination are shielded by
the privilege. See, e.g., King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426,
440 (2007) (“[B]ecause an employer and its employees have a common interest in
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protecting the workplace from abuse, an employer’s statements to employees
regarding the reasons for termination of another employee generally are
privileged.”); Cuenca v. Safeway San Francisco Emps. Fed. Credit Union, 180
Cal. App. 3d 985, 995 (1986) (“Communications made in a commercial setting
relating to the conduct of an employee have been held to fall squarely within the
qualified privilege for communications to interested persons.”). Kaufman’s
argument that Optumhealth and UnitedHealth Group are separate employers—even
though they are part of the same corporate group—does not affect our conclusion.
Communications by a former employer to a prospective employer about an
employee’s job performance also fit within the scope of the common interest
privilege. See Cal. Civ. Code § 47(c); see also Noel v. River Hills Wilsons, Inc.,
113 Cal. App. 4th 1363, 1369–70 (2003).
Second, the defendants acted without malice.1 “The malice necessary to
defeat a qualified privilege is actual malice which is established by a showing that
1
Under California law, the plaintiff bears the burden of showing that the
defendants acted with malice. See Lundquist v. Reusser, 875 P.2d 1279, 1284 (Cal.
1994) (in bank); Kashian v. Harriman, 98 Cal. App. 4th 892, 915 (2002) (“The
defendant has the initial burden of showing 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.”). We assume without deciding that
Kaufman need only show malice by a preponderance of the evidence rather than
clear and convincing evidence.
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the publication was motivated by hatred or ill will towards 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.”
Sanborn v. Chronicle Publ’g Co., 556 P.2d 764, 768 (Cal. 1976) (quotation marks
and citation omitted) (emphasis in original). The district court correctly concluded
that there is no genuine dispute as to any material fact concerning whether the
defendants or their agents “lacked reasonable grounds for belief in the truth” of
their statements about why the company terminated Kaufman. Id. Kaufman has
demonstrated that reasonable jurors could disagree about whether he failed to meet
the performance standards required of his position. But these factual disputes are
immaterial in determining whether the defendants acted with actual malice. See
Noel, 113 Cal. App. 4th at 1370 (“[M]alice focuses upon the defendant’s state of
mind, not his [or her] conduct.” (quotation marks and citation omitted) (alterations
in original)). Kaufman has not asserted any facts that could lead to an inference
that Kaufman’s supervisor, the human resources department, or anyone else acting
on behalf of the defendants actually “lacked reasonable grounds” for their
professed belief that he was underperforming. The California appellate courts have
affirmed orders granting summary judgment in favor of defendants under similar
circumstances. See, e.g., id. at 1371; Kashian, 98 Cal. App. 4th at 932–33.
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The district court also correctly granted summary judgment in favor of the
defendants on Kaufman’s related claims for invasion of privacy and expectation of
confidentiality. “When, as here, an invasion of privacy claim rests on the same
allegations as a claim for defamation, the former cannot be maintained as a
separate claim if the latter fails as a matter of law.” Alszeh v. Home Box Office, 67
Cal. App. 4th 1456, 1464 (1998); see also Noel, 113 Cal. App. 4th at 1372–73.
The judgment of the district court is AFFIRMED.
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