1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Myrna de Jesus, No. CV-21-00926-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Dignity Health Corporation, et al.,
13 Defendants. 14 15 Plaintiff Myrna de Jesus (“Plaintiff”), who is proceeding pro se, worked as a patient 16 care coordinator for non-party Optum360 Services, Inc. (“Optum360”). Although Plaintiff 17 was employed by Optum360, she physically worked inside St. Joseph’s Hospital and 18 Medical Center, which is a facility owned by Defendant Dignity Health Corporation 19 (“Dignity Health”). Plaintiff’s job responsibilities included registering patients’ insurance 20 during the hospital admissions process. 21 In March 2021, following an incident in which Plaintiff allegedly called a Dignity 22 Health nurse a “fucking bitch” in front of a Dignity Health patient, Dignity Health 23 representatives spoke with (and then emailed) Plaintiff’s Optum360 manager to raise 24 concerns about this and other incidents. The next day, Optum360 fired Plaintiff. 25 In this action, Plaintiff asserts a defamation claim against Dignity Health and seeks 26 $10 million in damages. Now pending before the Court are the parties’ cross-motions for 27 summary judgment. (Docs. 69, 70.) For the following reasons, Dignity Health’s motion 28 is granted, Plaintiff’s motion is denied, and this action is terminated. 1 BACKGROUND 2 I. Facts 3 The following facts are derived from the parties’ summary judgment submissions 4 and other materials in the record and are uncontroverted unless otherwise noted. 5 A. The Alleged Incidents 6 “Plaintiff worked as a Patient Care Coordinator for Optum360. . . . Although 7 employed by Optum360, Plaintiff physically worked at St. Joseph’s Hospital and Medical 8 Center, a Dignity Health facility.” (Doc. 69 at 2 ¶ 1; Doc. 1-3 at 7.)1 In this role, Plaintiff 9 “assisted hospital admissions by registering patients’ insurance and worked from a mobile 10 workstation, or ‘Work on Wheels.’” (Doc. 69 at 2 ¶ 2; Doc. 78 at 4 ¶ 2 [undisputed].) 11 On September 16, 2020, Plaintiff received a documented “coaching” from 12 Optum360 related to an incident that occurred the previous day. (Doc. 69 at 2 ¶ 4; Doc. 78 13 at 4 ¶ 4[undisputed]; Doc. 69-1 at 45-46 [“The purpose of this coaching session is to define 14 areas of concern in your work performance or behavior and allow you the opportunity to 15 demonstrate improvement.”].) “The Coaching required Plaintiff to ‘focus on treating all 16 patients, coworkers, [and] leaders’ with ‘respect, humility,’ ‘compassion, and integrity,’ 17 and noted ‘significant and immediate improvement’ was necessary to avoid additional 18 disciplinary action, ‘up to and including termination.’” (Doc. 69 at 2 ¶ 7; Doc. 69-1 at 45- 19 46.)2 20 As for the specifics of the underlying incident, Optum360’s “Coaching Summary” 21 form states that on September 15, 2020, a nurse, “Jackie,” “had concerns with [Plaintiff].” 22 (Doc. 69-1 at 45.) Jackie informed Plaintiff that the “patient was not oriented and 23 appropriate to answer admission questions” but Plaintiff said, “I am going to ask him 24 anyways.” (Id.) After Plaintiff obtained the patient’s signature on the intake forms, as well 25 as other information (such as the patient’s date of birth and social security number), 26 1 Plaintiff generally agrees but clarifies that she was later promoted to a 27 “Compliance” position. (Doc. 78 at 4 ¶ 1; Doc 69-1 at 50.) 28 2 Plaintiff agrees the Coaching included these requirements but characterizes it as “just a counselling not a write up.” (Doc. 78 at 5 ¶ 7.) 1 Plaintiff insisted to Jackie that the patient “wasn’t confused and could answer questions 2 and sign paperwork because ‘I have a Masters in Psychology.’” (Id.) Plaintiff disputes 3 certain aspects of Optum360’s account of the incident. (Doc. 78 at 5 ¶¶ 5-7.) 4 Separately, on March 1, 2021, “a Dignity Health nurse, Lois Dracobly, verbally 5 reprimanded Plaintiff for not wearing her mask while standing in a hallway outside the 6 intensive care unit.” (Doc. 69 at 3 ¶ 8; Doc. 69-2 at 7 [email from Dracobly describing the 7 incident].)3 “Plaintiff was not wearing her mask because she was eating.” (Doc. 69 at 3 8 ¶ 9; Doc. 78 at 6 ¶ 9 [undisputed].) Plaintiff ignored Dracobly’s request to wear a mask 9 while she was eating, so Dracobly called security, “who asked Plaintiff to eat in the 10 cafeteria.” (Doc. 69 at 3 ¶¶ 11-12; Doc. 78 at 6 ¶ 11-12 [undisputed].) 11 Dracobly also contends that, a “few weeks” before the masking incident, she and 12 Plaintiff had another unpleasant interaction. (Doc. 69-2 at 7.) There, Plaintiff tried to get 13 insurance and registration information from a family that was in the process of grieving 14 their loved one. (Doc. 69 at 3 ¶¶ 13-14; Doc. 69-2 at 7.) Plaintiff generally disputes 15 Dracobly’s version of this incident. (Doc. 78 at 6 ¶¶ 13-14.)4 16 Finally, on March 1, 2021, there was a separate incident at an elevator. (Doc. 69 at 17 3 ¶¶ 15-22; Doc. 78 at 6 ¶¶ 15-22 [generally agreeing there was an incident]; Doc. 69-1 at 18 12 [Plaintiff’s deposition testimony describing the elevator incident.].) The exact events 19 are contested, but generally, Plaintiff was in the elevator with her mobile unit, which took 20 up considerable space. (Doc. 69-1 at 13 [“I was measuring the WOW machine, kind of 21 taking up this space, and then me standing, the bed of the patient is so long, I said, “We’re 22 23 3 Although Dignity Health’s motion identifies the date of this incident as March 1, 24 2020, this appears to be a typo, as the underlying email is dated March 1, 2021 and states that the mask-warning incident occurred “[t]his morning.” (Doc. 69-2 at 7.) As for the 25 substance of the incident, Plaintiff “partially agrees” with Dignity Health’s description but maintains that she was “eating oatmeal” (not yogurt) and was “allowed . . . to eat 26 anywhere” and “Defendant cannot provide any evidence that it obliged all personnel to eat at the cafeteria only, and that all must wear their masks while eating.” (Doc. 78 at 5-6 ¶ 8.) 27 4 Plaintiff also argues that Dracobly “did not have a professional interaction with 28 Plaintiff” and in fact “pushed Plaintiff on the chest.” (Doc. 78 at 6 ¶ 13.) Plaintiff claims to have a police report from the interaction, but it was not attached as an exhibit. (Id.) 1 not going to fit.”].) Upon arriving at the seventh floor, Plaintiff encountered three5 nurses 2 transporting a patient in a bed. (Id.at 12-13.) Plaintiff, knowing they would not all fit 3 inside the elevator, asked the nurses and patient to wait for the next one. (Id. at 13-14 [“So 4 I suggested, “Do you think you guys can just wait for the other elevator to open?”].) The 5 nurses explained they could not wait because they were running late for surgery and asked 6 Plaintiff if they could use the elevator. (Id. [“She said, “No. We’re running late. We’re 7 running late for the patient’s surgery.”].) 8 In Plaintiff’s version of this incident, Plaintiff exited the elevator while muttering 9 “dealing with idiots.” (Id. at 14 [“When I got off, they moved back in. In my mind, I was 10 more to myself, because I said, “They are not thinking.’ In my mind, I said, ‘Dealing with 11 idiots,’ so I said that.”].) The nurses have a different recollection—two of the nurses, 12 Danyelle Dodd and Daniela Lopez, recalled that Plaintiff called Dodd a “fucking bitch.” 13 (Doc. 69 at 4 ¶ 23.)6 14 B. Dignity Health Representatives Report The Alleged Incidents To 15 Plaintiff’s Optum360 Supervisor 16 Dodd immediately referred the incident to her Dignity Health manager, Maureen 17 Juilfs. (Doc. 69 at 4 ¶ 24; Doc. 78 at 8 ¶ 24 [not disagreeing in relevant part]; Doc. 69-2 at 18 5 [email from Juilfs]; Doc 69-2 at 10-11 [Juilfs declaration].) After speaking with Plaintiff, 19 Juilfs expressed a desire to speak with Plaintiff’s Optum360 supervisor, Sarah Hernandez. 20 (Doc. 69 at 4 ¶¶ 25-27; Doc. 78 at 8 ¶¶ 25-27 [undisputed in relevant part]; Doc 69-2 at 11 21 ¶ 7 [Juilfs declaration].) 22 The group then traveled to Hernandez’s office. (Doc. 69 at 4 ¶ 28; Doc. 78 at 8 ¶ 28 23 [undisputed].) Juilfs first spoke to Hernandez alone. (Doc. 69 at 5 ¶ 29; Doc. 78 at 8 ¶ 29 24 [undisputed].) Juilfs generally relayed the allegation by Dodd and Lopez—i.e., that 25 Plaintiff had called Dodd a “fucking bitch” in front of a patient. (Doc. 69 at 5 ¶ 30; Doc. 26 5 Dignity Health contends there were only two nurses. (Doc. 69 at 3 ¶ 15.) 27 6 Plaintiff agrees the allegation by Dodd was that she used the words “fucking bitch” 28 but maintains this allegation was “fabricated.” (Doc. 78 at 7 ¶ 23.) Plaintiff also notes there were cameras in the area that no one has produced. 1 69-2 at 11 ¶ 7 [Juilfs declaration: “The three of us walked to Ms. Hernandez’s office. I 2 told Ms. Hernandez what Ms. Dodd had shared with me.”].)7 3 Afterward, Dodd spoke to Hernandez for approximately 30 minutes. (Doc. 69 at 5 4 ¶ 31; Doc. 78 at 8 ¶ 31 [undisputed]; Doc. 69-1 at 21 [Plaintiff’s deposition testimony].) 5 After Hernandez finished speaking with Dodd, “Plaintiff was reprimanded and sent home 6 by . . . Hernandez.” (Doc. 71 at 6 ¶ 2; Doc. 83 at 5 ¶ 2 [undisputed that Plaintiff was 7 reprimanded and sent home].) 8 That same day, Juilfs emailed Hernandez to summarize her understanding of the 9 meeting and the general allegations. (Doc. 69 at 5 ¶ 33; Doc. 69-2 at 5 [email].)8 Dodd 10 reviewed the email for accuracy before Juilfs sent it. (Doc. 69-2 at 11 ¶ 8.) 11 Dracobly sent a separate email to Hernandez about 20 minutes after Juilfs sent her 12 email. (Id. at 7.) Dracobly relayed the allegations concerning Plaintiff’s interactions with 13 the grieving family and Plaintiff’s unmasked eating in the ICU. (Id.) 14 Plaintiff has now identified the following 17 statements within the two March 1, 15 2021 emails that form the basis of her defamation claim against Dignity Health: 16 (a) “they asked her to please step out and allow them to take the patient down, she replied I was here first,” 17 (b) “proceeded to call Danyelle a F___ing Bitch,” 18 (c) “she pushed the down button which caused the elevator to open the door 19 again and seem to acknowledge non-verbally that yes that is what she said,” 20 (d) “she was extremely aggressive,” 21 (e) “started arguing with my employee,” 22 (f) “she was told by me that this was not the time or the place for this discussion she continued to state her case loudly to which was sternly asked 23 not to have this discussion in the hall which is when she stopped,” 24 (g) “she has gray, shoulder-length hair and is normally wearing an orange jacket,” 25 26 7 Although Plaintiff maintains that Dodd’s account of the incident is inaccurate, she 27 does not dispute the Juilfs relayed this account to Hernandez. (Doc. 78 at 8 ¶ 30.) 28 8 Plaintiff maintains the allegations are false but agrees the email was sent. (Doc. 78 at 9 ¶ 33.) 1 (h) “the patient’s two daughters,” 2 (i) “I asked if I could help her and she said she needed to get insurance information and register the patient,” 3 (j) “I told her the patient had been here for a couple weeks and this was 4 definitely not the time to approach family,” 5 (k) “she was very pushy and immediately got defensive with me,” 6 (l) “I asked her a few more times to please leave the family as they were grieving and it was inappropriate to approach them,” 7 (m) “Finally, I told her I needed her to completely leave the unit or I’d call 8 security as she was resistant to leaving,” 9 (n) “I reminded her to please keep her mask on in the hospital unless she was in a breakroom, etc. where she could have it off while eating,” 10 (o) “She mumbled something, rolled her eyes, and put the mask over her 11 mouth but not nose,” 12 (p) “She was eating a yogurt. I, again, reminded her that in public areas of the hospital we all needed to wear our masks. She said something along the 13 lines of ‘do you expect me not to eat’ in which I told her that she was welcome to use our breakroom or any other to eat but if she was in the public 14 areas of the hospital her mask needed to be on,” and 15 (q) “that employees response to them was also disrespectful and unprofessional.” 16 17 (Doc. 69-2 at 16-18 [Plaintiff’s response to Interrogatory No. 1, “Identify each and every 18 statement and/or communication which you allege constituted defamation and/or libel 19 towards you by any employee of Dignity Health”].) 20 C. Subsequent Developments 21 The following day, March 2, 2021, Optum360 terminated Plaintiff’s employment. 22 (Doc. 69 at 5 ¶ 34.)9 23 On May 12, 2021, Optum360 rejected Plaintiff’s appeal of the termination decision. 24 (Doc. 69 at 5 ¶ 36; Doc. 78 at 9 ¶ 36 [undisputed in relevant part]; Doc. 69-2 at 13 25 [Optum360 letter explaining basis for denial of appeal].) Optum360’s Internal Dispute 26
27 9 Plaintiff agrees she was terminated by Optum360 on March 2, 2021 but contends this was because Dignity Health requested her termination. (Doc. 78 at 10 ¶ 34.) To 28 support this assertion, Plaintiff cites a subsequent letter from Optum360 explaining why her appeal of the termination decision had been denied. (Id.) 1 Resolution (“IDR”) team concluded that “several witness [sic] were able to collaborate 2 [sic] you called another employee a ‘fucking bitch’ while exiting the elevator. Your 3 behavior violated UnitedHealth Group’s Values and therefore [we] found your termination 4 to be warranted.” (Doc. 69-2 at 13.) 5 Dignity Health asserts that “Plaintiff does not have any evidence that Dignity Health 6 repeated the alleged defamatory statements to anyone but Ms. Hernandez.” (Doc. 69 at 6 7 ¶ 43.) In support of this assertion, Dignity Health points to the following passage during 8 Plaintiff’s deposition: 9 Q. And the claim is that these two women told Sarah Hernandez that you had said things that you didn’t say, correct? 10 A. Correct. 11 Q. Who else did these two women tell, besides Sarah Hernandez, to your 12 knowledge? 13 A. I don’t know. Everybody talks to everybody there. All I know, they made the false allegation to Sarah. 14 15 (Doc. 69-1 at 23.) Notwithstanding this, Plaintiff now disputes whether the dissemination 16 of the alleged defamatory statements was limited to Hernandez, arguing that her “inability 17 to find a job after submitting several applications to third parties, including but not limited 18 to, prospective employers and the Arizona Department of Economic Security (denial of 19 unemployment benefits), [is] evidence that Dignity Health’s false and defamatory 20 statements were publicized to these third parties.” (Doc. 78 at 10 ¶ 34.) 21 II. Procedural History 22 On April 16, 2021, Plaintiff filed this action in Maricopa County Superior Court. 23 (Doc. 1-3 at 5-14 [complaint].) 24 On May 26, 2021, Dignity Health timely removed this action to federal court based 25 on diversity jurisdiction. (Doc. 1 at 2.) 26 On June 3, 2021, Plaintiff filed a motion to remand (Doc. 8), which the Court denied 27 (Doc. 11). 28 On March 31, 2022, Dignity Health filed its motion for summary judgment. (Doc. 1 69.) That same day, Plaintiff filed her motion for summary judgment. (Docs. 70, 71.) At 2 Plaintiff’s request (Doc. 72), the Court later permitted Plaintiff to file additional exhibits 3 in support of her motion (Doc. 75). The parties’ cross-motions are now fully briefed. 4 (Docs. 77, 78, 82, 83, 85.) Neither side requested oral argument. 5 LEGAL STANDARD 6 “The court shall grant summary judgment if [a] movant shows that there is no 7 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 8 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 9 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 10 in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 11 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 12 to the nonmoving party and draw all reasonable inference[s] in the nonmoving party’s 13 favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment 14 is improper where divergent ultimate inferences may reasonably be drawn from the 15 undisputed facts.” Fresno Motors, 771 F.3d at 1125. 16 A party moving for summary judgment “bears the initial responsibility of informing 17 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 18 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 19 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 20 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 21 production, the moving party must either produce evidence negating an essential element 22 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 23 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 24 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 25 [the] moving party carries its burden of production, the nonmoving party must produce 26 evidence to support its claim or defense.” Id. at 1103. 27 “If the nonmoving party fails to produce enough evidence to create a genuine issue 28 of material fact, the moving party wins the motion for summary judgment.” Id. There is 1 no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty 2 Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not 3 significantly probative, summary judgment may be granted.” Id. at 249-50. At the same 4 time, the evidence of the non-movant is “to be believed, and all justifiable inferences are 5 to be drawn in his favor.” Id. at 255. “[I]n ruling on a motion for summary judgment, the 6 judge must view the evidence presented through the prism of the substantive evidentiary 7 burden.” Id. at 254. Thus, “the trial judge’s summary judgment inquiry as to whether a 8 genuine issue exists will be whether the evidence presented is such that a jury applying that 9 evidentiary standard could reasonably find for either the plaintiff or the defendant.” Id. at 10 255. 11 “[W]hen parties submit cross-motions for summary judgment, [e]ach motion must 12 be considered on its own merits,” but the Court must consider all evidence submitted in 13 support of both cross-motions when separately reviewing the merits of each motion. Fair 14 Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 15 2001) (quotation marks omitted). For “the party with the burden of persuasion at trial”— 16 usually the plaintiff—to succeed in obtaining summary judgment in its favor, it “must 17 establish beyond controversy every essential element” of each claim on which summary 18 judgment is sought. S. California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th 19 Cir. 2003). The party without the burden of persuasion at trial—usually the defendant—is 20 entitled to summary judgment where it establishes that the party with the burden of 21 persuasion will be unable to prove at least one element of its claim in light of the undisputed 22 facts. Celotex Corp., 477 U.S. at 322-23. This distinction reflects that the burden is 23 ultimately on the proponent of each claim to prove it. Id. (“Rule 56(c) mandates the entry 24 of summary judgment, after adequate time for discovery and upon motion, against a party 25 who fails to make a showing sufficient to establish the existence of an element essential to 26 that party’s case, and on which that party will bear the burden of proof at trial. In such a 27 situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure 28 of proof concerning an essential element of the nonmoving party’s case necessarily renders 1 all other facts immaterial.”). 2 Although Plaintiff is pro se, “litigants in the ordinary civil case should not be treated 3 more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 4 1364-65 (9th Cir. 1986). “The Ninth Circuit directs courts ‘to make reasonable allowances 5 for pro se litigants and to read pro se papers liberally.’” Wilson v. JPMorgan Chase, N.A., 6 2020 WL 6262106, *2 (W.D. Wash. 2020) (quoting McCabe v. Arave, 827 F.2d 634, 640 7 n.6 (9th Cir. 1987)). However, “district courts lack ‘the power to act as a party’s lawyer, 8 even for pro se litigants.’” Id. (quoting Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 9 2007)). See also Bias, 508 F.3d at 1219 (“[Plaintiff] maintains . . . that as a pro se litigant 10 the district court should have searched the entire record to discover whether there was any 11 evidence that supports her claims. We disagree. A district court does not have a duty to 12 search for evidence that would create a factual dispute.”). 13 DISCUSSION 14 I. Dignity Health’s Motion For Summary Judgment 15 Dignity Health construes Plaintiff’s complaint as asserting a single claim for 16 defamation. (Doc. 1 ¶ 9; Doc. 69 at 15.) Dignity Health seeks summary judgment on that 17 claim on three grounds. (Doc. 69.) First, Dignity Health argues it had a qualified privilege 18 to share the allegations concerning Plaintiff’s conduct with Plaintiff’s supervisor at 19 Optum360. (Id. at 7-10.) Second, in the alternative, Dignity Health argues that any 20 defamation claim fails on the merits because many of the 17 challenged statements are not 21 defamatory, Plaintiff has no evidence to establish fault, and Plaintiff cannot establish harm. 22 (Id. at 10-14.) Third, Dignity Health argues that, at a minimum, Plaintiff’s allegations do 23 not support an award of punitive damages. (Id. at 14-15.) 24 As explained below, the Court agrees with Dignity Health as to the first issue, which 25 is dispositive, and thus declines to reach the other two. 26 … 27 … 28 … 1 A. Common Interest/Qualified Privilege 2 1. The Parties’ Arguments 3 Dignity Health argues it had a qualified privilege under Arizona law to share its 4 concerns about Plaintiff with Optum360 because “Plaintiff was an Optum360 employee 5 working inside of a Dignity Health facility, and working directly with Dignity Health 6 patients.” (Doc. 69 at 8.) Dignity Health continues: “Dignity Health and Optum360 7 naturally had a common interest in Plaintiff’s job performance. As a result, Optum360 was 8 entitled to learn that Plaintiff had used extremely inappropriate and unprofessional 9 language in front of a patient.” (Id.) Dignity Health further contends that it did not abuse 10 its qualified privilege by acting with “actual malice” or “excessive publication.” (Id. at 8- 11 10.) As for the former, Dignity Health contends that Plaintiff “presented no evidence that 12 Dignity Health knew its statements were false or had serious doubts as to the truth.” (Id. 13 at 9.) As for the latter, Dignity Health contends that Plaintiff cannot “show that Dignity 14 Health excessively published its allegations, or even that it made the statements to anyone 15 but Ms. Hernandez.” (Id.) Dignity Health concludes by emphasizing that “Plaintiff’s 16 insistence that the statements were false is not enough to establish the requisite level of 17 fault” and notes that, in any event, it “took care in attempting to determine the truth of the 18 statements before conveying its concerns to Optum360.” (Id. at 9-10.) 19 In response, Plaintiff acknowledges that “both Dignity Health and . . . Optum360[] 20 have a common interest in effective hospital management independently” but argues that 21 “Defendant and Plaintiff’s employer do not share a common interest in providing quality 22 patient care” because Optum360 is focused on “Revenue Cycle (billing) and health care 23 insurance coverage while that of Defendant is patient care.” (Doc. 78 at 2.) Plaintiff further 24 contends that Dignity Health acted in bad faith. (Id. at 12.) She asserts that when Juilfs 25 “demanded from Plaintiff to see her supervisor,” Plaintiff was under the impression that 26 the “three of them” would be discussing the elevator incident. (Id.) However, Juilfs and 27 Dodd spoke with Hernandez for “almost an hour” and then “left . . . without hearing the 28 Plaintiff’s side.” (Id.) Plaintiff concludes that those actions evidence “bad faith for being 1 deceitful to Plaintiff.” (Id.) Plaintiff also appears to argue that Dignity Health acted with 2 actual malice because of “major factual inaccuracies and changes” as well as “deliberate 3 alteration[s]” to the “original version of allegations against Plaintiff.” (Id. at 12-13.) For 4 example, Plaintiff notes that Dodd first alleged that Plaintiff “screamed the words ‘fucking 5 bitch’ in the presence of several witnesses, nursing students, other patients, medical 6 students, medical doctors, and other hospital personnel,” which was then changed to “Ms. 7 Dodd stated that Ms. Lopez and the patient heard the ‘remark’ as well.” (Id. at 12-13.) 8 Finally, Plaintiff argues that Dignity Health acted with “ill will” by making “excessive and 9 exaggerated” allegations. (Id. at 14.) In closing, Plaintiff asserts that “the onus probandi 10 now shifts to Defendant to show to this Court that its actions and statements are truthful 11 and not defamatory.” (Id. at 16.) 12 In reply, Dignity Health contends that “[a]s an initial matter, Plaintiff’s Response 13 fails to follow the Court’s rules. Her responses to Dignity Health’s Statement of Facts 14 (‘DSOF’) frequently fail to cite to the record, or any evidence, to support her contention 15 that the fact is, in fact, disputed.” (Doc. 82 at 1.) Turning to the merits, Dignity Health 16 argues that Plaintiff “does not present sufficient law or facts to rebut Dignity Health’s claim 17 of the common interest privilege.” (Id. at 2.) Dignity Health reiterates that the common 18 interest privilege applies to two entities that share the same “goal” with regard to patients, 19 irrespective of whether they also share the same “role.” (Id. at 2-3.) Next, Dignity Health 20 argues that, even viewing the evidence in the light most favorable to Plaintiff, she “fails to 21 present clear and convincing evidence that Dignity Health knew the falsity of its statements 22 or had serious doubts as to their truth.” (Id. at 4.) Dignity Health notes that Plaintiff herself 23 admitted that “Optum360, not Dignity Health, excluded Plaintiff from its conversation with 24 Dignity Health personnel” (id. at 4); argues that any of the supposed alterations identified 25 by Plaintiff are not “material” and even if they were, Plaintiff has offered no evidence of 26 Dignity Health’s intent (id. at 5); argues that even if the statements were defamatory per se 27 (which Dignity Health maintains they are not), Plaintiff is still required to show fault and 28 she “has failed to assert any facts upon which a jury could find actual malice” (id. at 6); 1 and argues that Plaintiff has no “admissible evidence that anyone at Dignity Health 2 requested or directed the termination” (id. at 6-7). 3 2. Analysis 4 Arizona “follows the Restatement (Second) of Torts . . . on claims relating to 5 defamation of a private person.” Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 6 449 (Ariz. Ct. App. 2015). Under the Restatement, “[t]o create liability for defamation 7 there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged 8 publication to a third party; (c) fault amounting at least to negligence on the part of the 9 publisher; and (d) either actionability of the statement irrespective of special harm or the 10 existence of special harm caused by the publication.” Restatement (Second) of Torts § 558. 11 “Publication for defamation purposes is communication to a third party.” Dube v. Likins, 12 167 P.3d 93, 104 (Ariz. Ct. App. 2007). 13 As for the second element of this test, Dignity Health does not dispute that it 14 published the alleged defamatory statements to a third party, Hernandez, but contends this 15 publication was privileged because it fell within the “common interest” privilege. (Doc. 16 69 at 7.) “Whether a privileged occasion arose is a question of law for the court, and 17 whether the occasion for the privilege was abused is a question of fact for the jury.” Green 18 Acres Tr. v. London, 688 P.2d 617, 624 (Ariz. 1984). 19 a. Common Interest 20 Arizona recognizes the “common interest” privilege, which arises when “one is 21 entitled to learn from his associates what is being done in a matter in which he has an 22 interest in common with them.” Green Acres, 688 P.2d at 625 (quoting Restatement 23 (Second) of Torts § 596, cmt. c). “This privilege applies in a context like associates in a 24 commercial enterprise, users of mercantile agencies, co-owners of property, or co-members 25 of the board of trustees of a school district.” Id. (internal citations omitted). “In these 26 contexts, each participant in the association, group or organization depends on other 27 participants to supply relevant information. Through the qualified privilege, courts 28 facilitate the exchange of information by protecting statements about matters affecting the 1 goals of that organization or group.” Id. 2 In Green Acres, the Arizona Supreme Court found there was no common interest 3 between an attorney and a news reporter in providing details of an upcoming class action 4 lawsuit against a retirement home. Id. at 626 (“Although it may be true in a loose sense 5 that the reporter and the lawyer defendants shared a ‘common interest’ in the plight of the 6 elderly, this is not the kind of interest that gives rise to a common undertaking which 7 compels protection from a defamation action.”). In contrast, in Miller v. Servicemaster By 8 Rees, 851 P.2d 143 (Ariz. Ct. App. 1992), the plaintiff (a man named Miller) was employed 9 by an unnamed company that utilized a janitorial services company (Servicemaster). Id. 10 at 144-45. Servicemaster, in turn, employed a woman named Powers. Id. After Powers 11 reported to Servicemaster that Miller had sexually harassed her while she was cleaning 12 Miller’s office, Servicemaster relayed this allegation to Miller’s employer. Id. Miller, in 13 turn, sued Servicemaster for defamation, under the theory that “the written and verbal 14 reports of the incident are defamatory as a matter of law because they adversely damaged 15 his professional reputation,” but the Arizona Court of Appeals held that Servicemaster was 16 protected by the common interest privilege because “public policy dictates that employees 17 must be protected from workplace sexual harassment” and “Powers’ report and 18 Servicemaster’s transmittal of that report to [Miller’s] employer were for the benefit of 19 protecting her from unwanted harassment, real or perceived.” Id. at 145. Similarly, in 20 Hirsch v. Cooper, 737 P.2d 1092 (Ariz. Ct. App. 1986), the court found that the common 21 interest privilege applied when a corneal surgeon questioned the competence of another 22 provider in treating his patient while in discussions with a foundation that would be paying 23 for the patient’s surgery. Id. at 1095-96. This was because the “discussion concerned the 24 future care of the patient and involved matters of a ‘common interest.’” Id. 25 Even construing the evidence in the light most favorable to Plaintiff, Dignity Health 26 and Optum360 shared a common interest in hospital management and patient care. (Doc. 27 69 at 8.) It is undisputed that “[a]lthough employed by Optum360, Plaintiff physically 28 worked at St. Joseph’s Hospital and Medical Center, a Dignity Health facility.” (Doc. 69 1 at 2 ¶ 1; Doc. 78 at 4 ¶ 1.) Plaintiff further does not dispute that part of her role was 2 assisting “hospital admissions by registering patients’ insurance.” (Doc. 69 at 2 ¶ 2; Doc. 3 78 at 4 ¶ 2.) Although Plaintiff asserts that she has “no obligation to perform quality patient 4 care and is only responsible to do compliance” (Doc. 78 at 4 ¶ 3; Doc 77-1 at 27 [outlining 5 Plaintiff’s job training online courses]), the coaching that Plaintiff received from 6 Optum360 in September 2020 specifically raised performance concerns relating to 7 Plaintiff’s inappropriate interactions with a Dignity Health patient and a registered nurse. 8 (Doc. 69-1 at 45.) The coaching also called for Plaintiff to “focus on treating all patients, 9 coworkers, leaders, anyone that she comes in contact with during her working hours with 10 the above values in mind. Specifically focusing on relationships, compassion, and 11 integrity.” (Id. at 46.) Taken together, the shared workspace, the regular interactions with 12 Dignity Health’s patients and staff, and Plaintiff’s performance metrics based on 13 interactions with Dignity Health’s patients and staff demonstrate that Dignity Health and 14 Optum360 shared a common interest in hospital administration and patient care. The 15 situation here has many obvious parallels to the situations in Miller and Hirsch, and in both 16 of those cases a common interest was found to exist. 17 The Restatement also contemplates the existence of a common interest in this 18 situation. Although Plaintiff did not work for Dignity Health, she worked in one of its 19 facilities, and Juilfs and Dracobly made statements that drew attention to potentially 20 inappropriate behavior by Plaintiff directed at other staff members and in front of a patient. 21 Restatement (Second) of Torts § 596 cmt. c (noting that “a partner is entitled to be told not 22 only of the discharge of an employee by his fellow partner but also of the reasons for his 23 discharge, and the fellow partner is conditionally privileged to state the reason even though 24 it reflects upon the conduct or character of the employee in question” and that “[i]n many 25 instances, the common interest makes proper the communication of defamatory matter that 26 has prompted certain action on the part of one of the parties although it has subsequently 27 been discovered that the matter was false”). The Court thus has little trouble concluding 28 that Dignity Health had a conditional privilege to communicate to Optum360 the 1 allegations regarding Plaintiff’s inappropriate interactions with Dignity Health employees 2 and patients and regarding Plaintiff’s potential violations of Dignity Health’s Covid 3 protocols, because such allegations implicated Dignity Health’s and Optum360’s common 4 interests. 5 Given this determination, the burden shifts to Plaintiff to show “abuse of that 6 privilege either by proving publication with ‘actual malice’ or by demonstrating excessive 7 publication.” Green Acres, 688 P.2d at 624 (citing Restatement (Second) of Torts § 604, 8 cmt. a). “This is a question for the jury, but where there is no evidence . . . the court can 9 dispose of the issue.” Aspell v. Am. Cont. Bridge League of Memphis, Tenn., 595 P.2d 191, 10 193 (Ariz. Ct. App. 1979). 11 b. Excessive Publication 12 “Abuse through excessive publication results from publication to an unprivileged 13 recipient not reasonably necessary to protect the interest upon which the privilege is 14 grounded.” Green Acres, 688 P.2d at 624 (internal citations omitted). 15 Plaintiff’s only argument on this point is that her “inability to find a job after 16 submitting several applications to third parties” is “evidence that Dignity Health’s false 17 and defamatory statements were publicized to these third parties.” (Doc. 78 at 10.) This 18 argument lacks merit. As Dignity Health points out, “Plaintiff’s inability to obtain 19 employment does not prove publication, let alone excessive publication.” (Doc. 82 at 4 20 n.2.) Notably, none of the materials submitted by Plaintiff indicate that the employers who 21 rejected her job applications were even aware of the allegations that Dignity Health 22 previously relayed to Hernandez. (Doc. 73-2 at 22 [Phoenix Children’s]; Doc. 73-2 at 24 23 [Mayo Clinic]; Doc. 77-1 at 20 [Plaintiff earned no unemployment benefits in 2021]; Doc. 24 70 at 27 [unemployment claim was not in “active status”].) Additionally, during her 25 deposition, Plaintiff admitted that she could only speculate as to whether the allegations 26 had been relayed to others beyond Hernandez. (Doc. 69-1 at 23.) On this record, there is 27 simply no evidence from which a reasonable juror could conclude that Dignity Health 28 publicized the allegations beyond Hernandez. See generally Barnes v. Arden Mayfair, Inc., 1 759 F.2d 676, 680 (9th Cir. 1985) (“A party opposing summary judgment is entitled to the 2 benefit of only reasonable inferences that may be drawn from the evidence put forth. The 3 district court must therefore undertake some initial scrutiny of the inferences that could be 4 reasonably drawn from the evidence. A reasonable inference is one which supports a viable 5 legal theory, which by necessary implication cannot be supported by only threadbare 6 conclusory statements instead of significant probative evidence.”) (cleaned up). 7 c. Actual Malice 8 “An abuse through ‘actual malice’ occurs when the defendant makes a statement 9 knowing its falsity or actually entertaining doubts about its truth.” Green Acres, 688 P.2d 10 at 624. In other words, “[m]alice is established by showing that [the defendants] acted in 11 reckless disregard of the truth, or with actual knowledge that their statements were false.” 12 Aspell, 595 P.2d at 193. “Actual malice, however, is not established through a showing of 13 bad motives or personal ill-will.” Heuisler v. Phx. Newspapers, Inc., 812 P.2d 1096, 1100 14 (Ariz. Ct. App. 1991). “In a defamation case, if the factual dispute concerns actual malice, 15 the trial court’s summary judgment inquiry is ‘whether the evidence in the record could 16 support a reasonable jury finding either that the plaintiff has shown actual malice by clear 17 and convincing evidence or that the plaintiff has not.’” Id. See also Wietecha v. Ameritas 18 Life Ins. Corp., 2006 WL 2772838, *11 (D. Ariz. 2006) (applying the clear and convincing 19 evidence standard to whether a defendant acted with malice in a qualified privilege 20 context). 21 Plaintiff’s first argument is that Dignity Health acted in “bad faith.” (Doc. 78 at 22 12.) As Dignity Health points out, that is the incorrect standard in this context. (Doc. 82 23 at 4 n.3.) At any rate, Plaintiff’s argument is based on the allegation that when Juilfs 24 “demanded from Plaintiff to see her supervisor,” Juilfs gave the impression that the “three 25 of them” would be discussing the elevator incident with Hernandez, yet Plaintiff was not 26 included in the conversations that immediately followed. (Doc. 78 at 12.) This allegation, 27 even if true, is not a basis for denying summary judgment because “[i]t is well established 28 that ‘failure to investigate, sloppy investigation, poor reporting practice and the like are not 1 per se actual malice.’” Heuisler, 812 P.2d at 1101 (citation omitted). Additionally, 2 Plaintiff agrees that significant conversations took place between Dodd/Juilfs and 3 Hernandez, suggesting there was some investigation into the allegations. Under these 4 circumstances, a reasonable juror could not conclude (let alone conclude subject to the 5 heightened clear-and-convincing evidence standard) that Dignity Health acted in reckless 6 disregard for the truth when communicating Dodd’s version of the incident to Hernandez. 7 Aspell, 595 P.2d at 193 (“Nor does the evidence, viewed in the light most favorable to 8 appellant, show that the board had a reckless disregard for the truth. . . . The minutes state 9 that the board discussed the situation for over an hour.”). 10 Plaintiff’s argument may be that Juilfs misled her into believing she would be part 11 of the discussion with Hernandez. (Doc. 78 at 9 [“Defendant’s OR nurse Juilfs and 12 attendant Dodd were treacherous and deceptive; they left the Patient Access office without 13 informing the Plaintiff.”].) However, Plaintiff admits that Hernandez, her Optum360 14 supervisor, is the one who excluded her from the conversation. (Id. at 8 [“Sarah Hernandez 15 excluded Plaintiff in their discussion.”].) Therefore, this allegation, even if true, is not 16 material on the issue of actual malice. 17 Plaintiff also alleges that Dodd had the “opportunity to verify with Plaintiff if 18 Plaintiff really screamed” “fucking bitch” before the walk to Hernandez’s office, but 19 “Dodd did not because she was fully aware of the falsity of her statements.” (Doc. 78 at 20 8.) But this argument is wholly speculative—it is premised on Plaintiff’s attempt to read 21 Dodd’s mind and discern why Dodd failed to engage in a follow-up conversation with her. 22 Such speculation is not clear and convincing evidence of actual malice. 23 Plaintiff next argues that the “deliberate” and “major” factual inconsistencies in the 24 statements show a reckless disregard for the truth. (Doc. 78 at 12-13.) Specifically, 25 Plaintiff points to the following inconsistencies: (1) the initial allegation that Plaintiff 26 “screamed the word ‘fucking bitch’ in the presence of several witnesses, nursing students, 27 other patients, medical students, medical doctors, and other hospital personnel” versus the 28 later statement that Dodd and Lopez merely heard Plaintiff “call[ing] Danyelle [Dodd]” 1 fucking bitch in front of one patient; (2) the allegation that there were only two attendants 2 with the hospital bed when there were actually three; (3) some of the allegations were 3 removed in Juilfs’s email; and (4) Juilfs added new allegations to the email, such as 4 Plaintiff “insisted that nurses and patient should wait for the next elevator.” (Id.) 5 As Dignity Health correctly notes, it is difficult to cast these “alterations” as either 6 material or relevant to the issue of malice. (Doc 82 at 5.) Whether there were two nurses 7 or three present does not affect “the substance, the gist, [or] the sting of” the original 8 accusation that Plaintiff said “fucking bitch” to a nurse in front of a patient. Fendler v. 9 Phx. Newspapers Inc., 636 P.2d 1257, 1261 (Ariz. Ct. App. 1981). And there is no 10 evidence that any of the changes were made with a “reckless disregard for the truth.” In 11 fact, it appears the alterations are more restrained versions of the originals, which if 12 anything suggests they were not made with actual malice. Accordingly, the purported 13 contradictions and inconsistencies do not qualify as evidence (let alone clear and 14 convincing evidence) from which a reasonable juror could find actual malice. 15 Plaintiff next argues that the allegations against her were “excessive and 16 exaggerated.” (Doc. 78 at 14.) However, the standard Plaintiff cites (relating to “ill will”) 17 is not the law in Arizona.10 (Id.) At any rate, the allegations Plaintiff cites as problematic 18 are that she was “extremely aggressive,” “disrespectful,” has “gray shoulder length hair 19 and is normally wearing a normal jacket,” and was “unprofessional.” (Doc. 78 at 14; Doc. 20 69-2 at 5 [Juilfs email: “When I went to speak to her regarding this situation she was 21 extremely aggressive and started arguing with my employee and when she was told by me 22 that this was not the time or the place for this discussion she continued to state her case 23 loudly to which she was sternly asked not to have this discussion in the hall which is when 24 she stopped and we proceeded to her manager’s office.”]; id. at 7 [Dracobly email: “The 25 10 The Court notes that Plaintiff has cited A.R.S. § 12-653.01, which defines actual 26 malice as “that state of mind arising from personal spite, hatred, or ill will toward the plaintiff, but such a state of mind occasioned by a good faith belief on the part of the 27 defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.” That provision’s definitions only apply in the 28 context of “damages for the publication of a libel in a newspaper or magazine, or of a slander by radio or television broadcast.” A.R.S. § 12-653.02. 1 employee would not give me or the security guard her name this morning during our 2 interaction. She has gray, shoulder-length hair and is normally wearing an orange jacket. 3 . . . Upon returning to the unit I was informed by our security staff that the employees 4 response to them was also disrespectful and unprofessional.”].) Not only does Plaintiff fail 5 to explain how these statements are exaggerated, but Plaintiff fails to explain how the 6 exaggeration could qualify as clear and convincing evidence of actual malice—i.e., a 7 reckless disregard for the truth.11 Given that it is undisputed that Hernandez gave 8 significant time to Dignity Health’s employees to explain the situation, Plaintiff’s 9 speculative evidence does not demonstrate that she could meet the clear and convincing 10 evidence hurdle. Even if these statements vary slightly from Plaintiff’s own recollection 11 of the events, this does not create a genuine issue of material fact about whether the 12 statements were made with actual malice.12 13 Plaintiff also argues that many of the statements were defamatory per se. (Doc. 78 14 at 14-15.) But even assuming that some of the challenged statements could be categorized 15 in this fashion, which is unlikely,13 Dignity Health’s defense is that it had a privilege to 16 relay those statements to Hernandez. Statements that would otherwise constitute 17 defamation per se are not actionable if the publication was privileged. McClinton v. Rice, 18 265 P.2d 425, 430 (Ariz. 1953) (“Unless the publication in the instant case was privileged 19 or qualifiedly privileged, the proof of publication of the article carried with it the 20 presumption of its falsity . . . .”) (emphasis added). Similarly, whether the statements 21 touched on the subject matters that might trigger the defamation per se doctrine is distinct 22 from whether Plaintiff can show they were made with actual malice. 23 11 Plaintiff does not dispute that these events occurred, only how they have been 24 characterized. (Doc. 78 at 5, 13.) 12 Plaintiff has submitted a black-and-white photo of herself, which shows her hair as 25 shoulder length. (Doc. 70 at 10.) Even if the photo made clear that Plaintiff’s hair is not gray, this would not create a material dispute as to whether Dignity Health acted with actual 26 malice. 27 13 “An utterance is slander Per se when its publication charges a contagious or venereal disease, or charges that a woman is not chaste, or tends to injure a person in his profession, 28 trade or business, or imputes the commission of a crime involving moral turpitude.” Modla v. Parker, 495 P.2d 494, 496 n.1 (Ariz. Ct. App. 1972). 1 Finally, Plaintiff contends that Dignity Health asked to have Plaintiff fired, which 2 constitutes actual malice. (Doc. 78 at 4 [“Defendant, to make sure that its malicious request 3 is materialized, made a willful presence in the office of Sarah Hernandez, and witnessed 4 Ms. Hernandez pronouncing her derogatory statements to Plaintiff”]; id. at 9 [“On March 5 2, 2021, Plaintiff was terminated based on Defendant’s management request to remove 6 Plaintiff.”].) Putting aside that there is no admissible evidence that Dignity Health asked 7 for Plaintiff to be fired—although Plaintiff asserts that Hernandez admitted to her that 8 Dignity Health made such a request (Doc. 77-1 at 13), Dignity Health correctly points out 9 that “Plaintiff’s assertions about what Ms. Hernandez told her constitute inadmissible 10 hearsay” (Doc. 82 at 8 n.5)14—such a request would not qualify as evidence of actual 11 malice in any event. Heuisler, 812 P.2d at 1100 (“[E]vidence tending to show that Murphy 12 may have had a personal motive to deprive Heuisler of the appointment, although perhaps 13 relevant to show spite or ill-will amounting to common law malice, would not establish 14 knowledge of falsity or reckless disregard for the truth, the defining characteristics of actual 15 malice . . . .”). 16 II. Plaintiff’s Motion For Summary Judgment 17 Plaintiff argues she is entitled to summary judgment because Dignity Health 18 “deliberately violated First (1st) Amendment of the US Constitution, A.R.S. § 12-541, § 12- 19 651, § 12-653.01, and Arizona Constitution, Art. 2, Sec. 4, including contemporary, 20 exemplary, and punitive damages, which all of these bundled together as $10,000,000.00 21 plus cost.” (Doc. 70 at 2.) Additionally, in her motion papers, Plaintiff seems to make 22 references to claims for intentional infliction of emotional distress (Doc. 71 at 14) and 23 tortious interference with contract (Doc. 85 at 11). 24 Even liberally construed, Plaintiff’s complaint only raises a state-law defamation 25 claim. (Doc. 1-3 at 9-11.) Nor is there any evidence that Plaintiff ever disclosed her intent 26 to pursue some sort of claim other than a state-law defamation claim. (See, e.g., Doc 10 at 27 14 The only admissible evidence in the record on this point is Juilfs’s declaration, in 28 which Juilfs avows that “I did not ask Ms. Hernandez to fire Plaintiff.” (Doc. 69-2 at 11 ¶ 9.) 1 4 [in the portion of the Rule 26(f) report requiring Plaintiff to provide a “description of 2 each claim, defense, and affirmative defense,” Plaintiff wrote: “Plaintiff brings a claim for 3 defamation/slander against Dignity Health Corporation”].) Accordingly, the Court limits 4 its analysis to Plaintiff’s defamation claim.15 5 A. The Parties’ Arguments 6 In her motion for summary judgment, Plaintiff makes many of the same arguments 7 she made in her response to Dignity Health’s motion. (Doc. 71 at 10 [arguing that the 8 challenged communications were “slanderous and libelous per se”]; id. at 11 [arguing that 9 Dignity Health cannot assert a qualified privilege because it acted “with malice in fact”]; 10 id. at 12 [arguing that Dignity Health “ha[d] full knowledge of the falsity of its statements 11 after making deliberate alteration of material facts and exhibition of major factual 12 inaccuracies”].) Because those arguments are addressed on the merits in Part I above, the 13 Court will not address them again here. 14 Plaintiff also seems to advance several additional arguments in support of her 15 affirmative request for summary judgment. First, Plaintiff contends that actual malice is 16 only required if the challenged statement addressed a matter of public concern, which is 17 not the case here, and there is “prima facie evidence of actual malice on the tortious conduct 18 of the Defendant.” (Id.) Second, Plaintiff contends that Dignity Health’s statements, under 19 any plain interpretation, impeach her “honesty, integrity, or reputation” and thus constitute 20 libel per se. (Id. at 13-14.) In a related vein, Plaintiff contends that Dignity Health’s “false 21 allegations are defamation per se as [they] stigmatize[] the Plaintiff as guilty of 22 unprofessionalism and lack of work ethics.” (Id. at 14.) Finally, Plaintiff argues that 23 15 The Court further notes that Plaintiff does not explain how Dignity Health acted 24 under color of state law, as required for a First Amendment claim. Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983) (“In order to state a claim under 42 U.S.C. § 1983, 25 [plaintiffs] must show two essential elements: (1) that the defendants acted under color of state law; and (2) that the defendants caused them to be deprived of a right secured by the 26 constitution and laws of the United States.”). As for Plaintiff’s statutory citations, A.R.S. § 12-541 simply identifies the statute of limitations for libel and slander, A.R.S. § 12-561 27 provides certain definitions to be used in a medical malpractice action, and A.R.S. § 12- 653.01 applies only to broadcast television station retractions. Accordingly, those statutes 28 could not provide an independent pathway to liability here. Neither could the due process clause of the Arizona Constitution. 1 Dignity Health cannot be protected by the “Constitution’s First Amendment on freedom of 2 speech, nor can the Defendant raise the doctrine of fighting words to protect itself.” (Id. at 3 14-15.) 4 In response, Dignity Health argues that Plaintiff has “not produce[d] sufficient 5 evidence to establish, without genuine dispute, the elements of her defamation claim.” 6 (Doc. 83 at 1-2.) According to Dignity Health, “Plaintiff’s insistence that Dignity Health 7 failed to prove the ‘truth’ of its statements confuses the issue: it is Plaintiff who must 8 establish the statements were false.” (Id. at 2.) Finally, Dignity Health argues that “even 9 if the Court finds Plaintiff met her burden as to Dignity Health’s liability, Plaintiff produced 10 no supportive evidence for punitive damages; at a minimum, the Court should deny 11 Plaintiff summary judgment on this relief.” (Id. at 2.) 12 In reply, Plaintiff first argues that Dignity Health’s response is untimely. (Doc. 85 13 at 1.) Next, Plaintiff argues that Dignity Health has distorted several facts without any 14 citations to record evidence. (Id. at 2-3.) As for Dignity Health’s substantial truth defense, 15 Plaintiff contends that Dignity Health “DID NOT provide any evidence, not one, not even 16 a statement from any lone witness, so to prove the truthfulness to all its accusatory 17 allegations against Plaintiff.” (Id. at 3.) Additionally, Plaintiff argues that Dignity Health 18 has disregarded its burden to prove truth by a preponderance of the evidence. (Id. at 7-8.) 19 Plaintiff further argues that various pieces of circumstantial evidence show that the 20 allegations against her were false (id. at 8-9), that Dignity Health’s objections to her 21 exhibits are “unacceptable” under Federal Rule of Evidence 402 (id. at 5-6), and that 22 punitive damages are “assumed after Plaintiff established well the evil intent of the 23 Defendant and the inflicted injuries she suffered” (id. at 6). In conclusion, Plaintiff argues 24 that she proved her prima facie case by demonstrating that (1) Dignity Health failed to 25 prove the truth of the statements, (2) Dignity Health’s “accusatory allegations are 26 defamatory per se as it immediately injured Plaintiff’s character and caused her immediate 27 termination,” (3) “Dignity Health’s defamatory statements were publicized to Plaintiff’s 28 prospective employers, employment agencies, AZ Dept. of Securities, and alma mater 1 schools,” (4) Dignity Health “clearly exhibited reckless disregard of the truth, because 2 having full knowledge of the falsity of its allegations, with an evil mind, intentionally 3 alleged falsehoods, by phone call, email, reported in person, and made an in-person 4 requests for her immediate removal at work which directly defamed Plaintiff,” and 5 (5) Dignity Health’s “defamatory falsehoods were resulted directly to Plaintiff’s immediate 6 sufferings of complete economic losses, loss wages, incapacitated to pay all her debts and 7 credit cards, lost company benefits, maintain a sustainable life, lost medical health benefits, 8 unemployment benefits, and other consequential damages.” (Id. at 9-12.) 9 B. Analysis 10 Under Local Rule 7.2(c), a party generally has 14 days to file a response to a motion, 11 subject to the exceptions in Local Rule 56.1. Local Rule 56.1(d), in turn, specifies that a 12 party has 30 days to file a response to one particular type of motion—a motion for summary 13 judgment. 14 Plaintiff’s summary judgment motion was filed on March 31, 2022. (Doc. 70.) 15 Federal Rule of Civil Procedure 6(a)(1), which governs the computation of time, explains 16 that the Court shall exclude the day of the event that triggers the period and that if the final 17 day of the period is a Saturday, Sunday, or legal holiday, then the period “continues to run 18 until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Here, the 19 30th day after March 31, 2022 was April 30, 2022, which was a Saturday. Accordingly, 20 Dignity Health’s response was not due until the following Monday, May 2, 2022. This 21 was the day that Dignity Health filed its response. (Doc. 83.) It follows that Dignity 22 Health’s response was timely. 23 Turning to the merits, any defamation claim against Dignity Health fails based on 24 application of the common interest privilege for the reasons stated in Part I above. Nothing 25 in the briefing related to Plaintiff’s affirmative summary judgment motion undermines this 26 conclusion. 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that Dignity Health’s motion for summary judgment (Doc. 69) || is granted and Plaintiff's motion for summary judgment (Doc. 70) is denied. 4 IT IS FURTHER ORDERED that the Clerk enter judgment accordingly and || terminate this action. 6 Dated this 18th day of January, 2023. 7 8 Lm ee” 9 f t _o——— Dominic W, Lanza 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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