Filed 3/16/21 Edalati v. Kaiser Foundation Health Plan, Inc. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
NAZILA TAZANGI EDALATI, A156916
Plaintiff and Appellant,
(Solano County
v. Super. Ct. No. FCS044289)
KAISER FOUNDATION HEALTH
PLAN, INC. et al.,
Defendants and Respondents.
Nazila Tazangi Edalati D.D.S. appeals after judgment was entered in
favor of defendants on her defamation and invasion of privacy suit. She
contends the trial court erred in granting summary judgment because she
established a triable issue of fact as to the common interest privilege’s
application. (Civ. Code, § 47, subd. (c); undesignated statutory references are
to the Civil Code.)1 We disagree and affirm.
BACKGROUND
A.
Defamation requires the publication of a statement of fact that is false,
defamatory, unprivileged, and has a natural tendency to injure or causes
1Because multiple members of the Edalati family are involved, we will
refer to them by their first names, for clarity.
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special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720 (Taus).) Libel is a
type of defamation based on written statements or other visual depictions.
(§ 45.) The “common-interest privilege” provides a conditional privilege to a
defendant who makes a statement to others on a matter of common interest if
the statement is made without malice. (§ 47, subd. (c); Lundquist v. Reusser
(1994) 7 Cal.4th 1193, 1196 (Lundquist).)
B.
Kaiser Foundation Health Plan, Inc. (Kaiser) has contracts with the
federal government allowing it to provide prescription medication plans to
Medicare patients. Kaiser is required to regularly review lists of providers
excluded from writing prescriptions for Medicare members and to notify such
providers’ Medicare patients that federal law prohibits using federal funds to
cover the cost of any drugs they prescribe. The government’s list of excluded
prescribers is maintained by the Office of Inspector General for the United
States Department of Health and Human Services.
In October 2013, Kaiser erroneously notified 38 of Nazila’s Medicare
patients that she was on a list of excluded providers suspected of fraud.
Kaiser’s letters stated that it “[could] no longer cover prescription
medications . . . that are prescribed by [Nazila] . . . because . . . she has been
excluded from participation in all federal health care programs.”
Nazila complained to Kaiser in December 2013. After confirming
Nazila was not an excluded provider, Kaiser sent retraction letters, the
following month, to the same 38 patients.
C.
Nazila sued Kaiser, Kaiser Foundation Hospitals, and the Permanente
Medical Group, Inc. for defamation and false light invasion of privacy. Nazila
alleged that Kaiser made the October 2013 publication knowing of its falsity
2
or in reckless disregard for its truth and without undertaking an adequate
investigation.
Kaiser moved for summary judgment, arguing that the publications
were protected by the common interest privilege because they were made
about a dentist’s eligibility for reimbursement, pursuant to Kaiser’s
responsibilities as a Medicare participant, to interested parties, without
actual malice.
Kaiser acknowledged the publications made to Nazila’s patients were
false—she was not in fact on the government’s list of excluded prescribers in
October 2013. But Kaiser also presented evidence that the publication was
made negligently and not with actual malice.
Kaiser employee Vanessa Munoz provided a declaration in which she
stated that, consistent with Kaiser’s usual practice, she received a list of
potentially excluded prescribers from Kaiser’s Pharmacy Service Center,
which included Nazila. Munoz then pasted the listed last names into the
website maintained by the Office of Inspector General, as well as a third
party database, for verification. Munoz admitted that she failed to notice
that her search for Nazila’s last name returned a hit for Nazila’s brother,
Bahman Tazangi Edalati (who is also a dentist), on the federal government’s
list of excluded providers. Failing to notice the difference in the first names,
Munoz mistakenly believed that Nazila was an excluded provider. Relying on
this information, Munoz sent a confirmation email to Kaiser’s Pharmacy
Service Center, which triggered the letters.
Munoz attributed her inattention to detail to significant stress caused
by a medical condition she was experiencing at the time. Munoz stated in her
declaration that she did not know Nazila in October 2013 and had never
harbored ill will against her.
3
Nazila opposed the summary judgment motion. She argued, in her
opposition brief, that Kaiser acted with malice when it made the challenged
publications, thereby defeating any qualified privilege, because Munoz only
verified matching last names and thereby made no real effort to determine
whether Kaiser’s publication was true or false. In support, she pointed to
evidence that first names and other distinguishing information were
available to Munoz, had she investigated further. She also cited evidence
that Kaiser failed to follow its own procedures, which requires verifying first
names and other unique identifiers.
The trial court granted Kaiser’s motion and entered judgment in its
favor. The court explained: “Evidence supports a finding that Kaiser was
negligent in mistakenly communicating to [Nazila’s] patients that she was an
excluded Medicare provider. [¶] . . . [¶] Because no evidence exists to create a
triable issue of fact as to malice, the common interest privilege creates a
complete defense to defamation.”
DISCUSSION
A.
Nazila argues the trial court erred in concluding that Kaiser’s conduct
was privileged because she established a triable issue of material fact with
respect to malice. After independently reviewing the evidence submitted in
support and in opposition to the motion (Couch v. San Juan Unified School
Dist. (1995) 33 Cal.App.4th 1491, 1498), we disagree.
1.
It is undisputed that the common interest privilege applies to the
publications at issue. Accordingly, the absence of malice is presumed and
Nazila bears the burden to defeat the privilege by showing Kaiser made the
statement with actual malice. (§ 48; Taus, supra, 40 Cal.4th at p. 721;
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Lundquist, supra, 7 Cal.4th at pp. 1196-1197, 1208.) Actual malice cannot be
inferred from the statement itself. (§ 48; Lundquist, supra, 7 Cal.4th at pp.
1209-1210; Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363,
1370 (Noel).) It is established “ ‘ “by a showing that 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
(citations).” ’ ” (Taus, supra, 40 Cal.4th at p. 721, italics omitted.)
2.
Nazila contends she established a triable issue regarding malice
because Munoz acted recklessly in failing to adequately investigate the truth
or falsity of Kaiser’s statement. Nazila relies on evidence that Kaiser did not
immediately retract its publications when notified and that Munoz failed to
verify that Nazila’s first name or other unique identifiers matched the
information on the federal government’s website—information that was
readily available, required to be verified by Kaiser, and which would have
cleared her name. We assume that Munoz performed a substandard
investigation and that Kaiser delayed in sending retraction letters but agree
with Kaiser that Nazila’s evidence presents no triable issue as to actual
malice.2
“The failure to conduct a thorough and objective investigation, standing
alone, does not prove actual malice.” (Reader’s Digest Assn. v. Superior Court
(1984) 37 Cal.3d 244, 258.) We focus solely on the defendant’s subjective
state of mind at the time of publication. (Sutter Health v. UNITE HERE
2 We disregard evidence cited in Nazila’s amended statement of
undisputed facts, which the trial court ruled was not properly before it.
Nazila ignores this ruling on appeal and forfeits any argument that the trial
court abused its discretion.
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(2010) 186 Cal.App.4th 1193, 1210-1211.) Reckless disregard requires more
than negligence or even gross negligence; it means “the defendant was
actually aware the contested publication was false” or entertained serious
doubts as to its truth. (Id. at p. 1210; Noel, supra, 113 Cal.App.4th at pp.
1370-1371; Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10,
33.) Reckless disregard “is not measured by whether a reasonably prudent
[person] would have published, or would have investigated before
publishing.” (Jackson, supra, at p. 33, italics added.)
Munoz stated in her declaration that she did not know Nazila, in
October 2013, and never harbored ill will against her. When the challenged
letters were sent, neither Munoz nor Kaiser harbored any doubt that the
exclusion letters were accurate. Munoz subjectively believed that Nazila had
been excluded. Munoz stated that she simply “did not realize” that the first
names did not match. There is certainly nothing about the circumstances
surrounding Kaiser’s publication that suggests Munoz’s stated belief was
highly improbable or that she was purposefully avoiding the truth.
Nazila points to absolutely no evidence that Munoz or any other Kaiser
employee believed the exclusion statements were false, or entertained serious
doubts about their truth, in October 2013. It is insufficient that further
investigation would have revealed the publication was false, even if Munoz’s
investigation was sloppy. (See Noel, supra, 113 Cal.App.4th at pp. 1366-
1367, 1371-1372, 1375 [no triable issue on malice when former employer paid
insufficient attention to name provided in reference request and, believing
the request involved an entirely different former employee, provided
inaccurate reference that plaintiff was terminated due to “ ‘loss prevention
issues’ ”]; Reader’s Digest Ass’n v. Superior Court, supra, 37 Cal.3d at p. 258
[“The failure to conduct a thorough and objective investigation, standing
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alone, does not prove actual malice, nor even necessarily raise a triable issue
of fact on that controversy”].)
3.
We are no more persuaded by Nazila’s suggestion that she is subject to
a lesser standard for proving actual malice because the exclusion letters
constituted libel per se. First, Nazila forfeited the argument by raising it for
the first time in her reply brief. (American Drug Stores, Inc. v. Stroh (1992)
10 Cal.App.4th 1446, 1453.) In any event, libel per se is a publication which
is defamatory on its face. (§ 45a; Balla v. Hall (2021) 59 Cal.App.5th 652,
675, 686.) Whether a publication is defamatory and whether it is privileged
are two distinct questions. (See Taus, supra, 40 Cal.4th at p. 720.) She
cannot rely on Snively v. Record Publishing Co. (1921) 185 Cal. 565, 577-578
to establish a different burden of proof on malice. Snively has since been
disapproved on precisely that point. (Lundquist, supra, 7 Cal.4th at pp.
1208-1211.)
No reasonable jury could infer malice on this record. The same is true
for Nazila’s invasion of privacy cause of action. (See Hawran v. Hixson (2012)
209 Cal.App.4th 256, 277.) The trial court correctly granted summary
judgment. We need not address the parties’ additional arguments.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A156916
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