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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. Bax (10/27/2006) sp-6066
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DANIEL DeNARDO, | ) |
| ) Supreme Court Nos. S- 11487/11508 | |
| Appellant/ | ) |
| Cross-Appellee, | ) Superior Court No. |
| ) 3AN-01-10083 CI | |
| v. | ) |
| ) O P I N I O N | |
| JOY BAX, | ) |
| ) No. 6066 - October 27, 2006 | |
| Appellee/ | ) |
| Cross-Appellant. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Daniel DeNardo, pro se,
Anchorage, Appellant and Cross-Appellee.
Joan E. Rohlf, Guess & Rudd, P.C.,
Anchorage, for Appellee and Cross-Appellant.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
EASTAUGH, Justice, dissenting.
I. INTRODUCTION
Daniel DeNardo filed this lawsuit against his former
coworker Joy Bax alleging defamation. DeNardo based his claim on
comments made by Bax to coworkers that she was worried that
[DeNardo] was stalking [her]. The superior court granted summary
judgment to Bax on the grounds that her statements were
privileged as statements of concern about personal safety in the
workplace and that DeNardo had failed to provide evidence that
Bax abused the privilege. DeNardo appeals, conceding that Baxs
comments were privileged but arguing that there were sufficient
factual issues surrounding the question of abuse that the issue
should have been submitted to a jury rather than decided on
summary judgment. Because the superior court correctly
determined that DeNardo failed to produce sufficient evidence
that Bax acted with knowledge or reckless disregard as to the
falsity of her statements (thereby abusing the privilege) we
affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Daniel DeNardo and Joy Bax were formerly coworkers at
Alaska Newspapers, Inc. (ANI). When DeNardo was terminated from
ANI, he filed a lawsuit in federal court against his former
employer, its parent company Calista Corporation, and several
former coworkers, including Bax. During a videotaped deposition
in that case attended by Bax, DeNardo was asked by Joan Rohlf,
attorney for defendants, if he was currently in possession of any
weapons. DeNardo refused to answer.
Based on DeNardos refusal to answer whether he was in
possession of a weapon at the deposition, Rohlf moved for a
protective order, requesting permission to conduct the remainder
of DeNardos deposition at the federal courthouse, where DeNardo
would have to undergo a security screening. Attached to the
motion were affidavits from Rohlf and three of the codefendants
present at the deposition, including Bax.
Baxs affidavit in support of the motion stated:
I attended Mr. DeNardos deposition on March
9, 2001. I was extremely concerned when Mr.
DeNardo refused to answer whether he had
brought a weapon to the deposition. When we
worked together at ANI, there were several
occasions when Mr. DeNardo followed me in his
vehicle. I was worried that he was stalking
me. I have expressed concern about this to
Holly Parsons and other defendants in this
action, as well as to Ms. Rohlf. Annie
Harris has expressed concern to me that Mr.
DeNardo was loitering around her personal
residence last fall. Holly Parsons has
expressed similar concerns. Based on my
observations and knowledge of Mr. DeNardo
while we worked together at ANI, and based on
these incidents, I am very concerned about my
personal safety in Mr. DeNardos presence.
B. Proceedings
In response to this affidavit, DeNardo filed a new
lawsuit in superior court alleging that Bax maliciously made
statements to coworkers, Holly Parsons and Annie Harris, that
DeNardo was stalking Bax. DeNardo claimed that Baxs statements
were maliciously made, false, defamatory, spurious, and libelous,
and were understood by others as referring to DeNardo and
charging DeNardo with the corrupt and dishonorable conduct of
stalking which is criminal conduct in the State of Alaska. In
the complaint, DeNardo denied stalking or following Bax.
During the course of discovery, DeNardo filed several
interrogatories and requests for production. Bax moved for a
protective order asking that the superior court limit DeNardos
access to certain witnesses and preclude discovery irrelevant to
the defamation suit. The superior court granted this motion,
allowing DeNardo to depose Baxs former employers and ex-husband
only if DeNardo provided proper notice to Baxs counsel and each
deponent and only if Baxs counsel was present at the depositions.
The superior courts order required all telephone conversations
between DeNardo and Baxs ex-husband, coworkers, or supervisors to
be conducted as conference calls in which Baxs counsel could
participate. The superior court limited the scope of these
depositions and phone calls as follows: DeNardo may ask whether:
(1) Bax ever informed the witnesses whether she had ever been
stalked . . . followed, or harassed by Mr. DeNardo; (2) what such
stalking or harassment reportedly consisted of; and (3) the basis
for Baxs stated belief. The superior court also permitted
DeNardo to ask whether Bax had informed witnesses that DeNardo
had loitered at residences. The order specified that DeNardo was
not allowed to ask witnesses about Baxs personal life or social
relationships and was not permitted to question the witnesses
about information irrelevant to the defamation claim. The court
noted that Bax was not required to provide DeNardo with her
current address as long as she was represented by counsel.
DeNardo also was not allowed to contact Baxs twelve-year-old
daughter. DeNardo moved for a reconsideration of the courts
protective order, but that motion was denied.
Bax moved for summary judgment, arguing that her
statements were not false because they were based on her own
observations and subjective concern that DeNardo was following
and possibly stalking her. She also asserted that the statements
in her affidavit filed in the federal court case were absolutely
privileged and that the conversations she had with coworkers that
were referenced in her affidavit were conditionally privileged
because coworkers share a common interest in workplace safety.
DeNardo opposed Baxs motion, denying that he ever
stalked Bax and claiming that Baxs allegation that DeNardo
stalked her was defamation per se. He further argued that [e]ven
assuming a conditional privilege, it is a jury issue whether the
privilege is lost from abuse upon a showing of reckless
disregard, deliberate indifference, or actual malice.
The superior court granted Baxs summary judgment
motion, finding that Baxs statements in the sworn affidavit filed
in the federal court case were completely privileged and that the
statements made by Bax to coworkers, memorialized in the
affidavit, were protected by a conditional privilege, the abuse
of which DeNardo had failed to establish. Although the superior
court held that Bax was not entitled to summary judgment on the
questions whether her statements were false or negligently made
or whether Baxs statements were defamation per se, the superior
court found that nothing has been submitted . . . to support a
finding that Mr. DeNardo has shown that Ms. Bax in making these
statements was making them with knowledge or reckless disregard
as to their apparent falsity.
On appeal, DeNardo argues that even if Baxs comments
were privileged, there are disputed facts as to whether the
privilege was abused. Therefore, he argues, his claims should
have been submitted to a jury rather than disposed of on summary
judgment. He further challenges the superior courts protective
order as a violation of the work product privilege and his right
to discovery.1
III. DISCUSSION
A. Standard of Review
The superior court has broad discretion to determine
the scope and extent of discovery and to craft protective orders.2
A courts protective order restricting discovery will not be
overruled absent abuse of discretion.3
We review a grant of summary judgment de novo,
affirming if the record contains no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law.4 When considering a motion for summary judgment, all
reasonable inferences of fact from the proffered evidence must be
drawn against the moving party and in favor of the non-moving
party.5
Whether a statement is defamatory6 and whether a
statement is afforded privilege7 are questions of law. If the
relevant facts of the case are disputed, a jury must determine if
a conditional privilege has been abused.8 When considering legal
issues of first impression, such as whether a previously
unrecognized privilege applies, we will adopt the rule of law
that is most persuasive in light of precedent, reason, and
policy.9
B. The Superior Courts Protective Order Did Not
Inappropriately Restrict Discovery.
As a threshold matter, we address DeNardos appeal of
the superior courts decision granting Baxs motion for a
protective order. Under Alaska Civil Rule 26(b)(1) a party may
obtain discovery regarding any matter, not privileged which is
relevant to the subject matter involved in the pending action.
But the court can, with good cause, enter any protective order
that justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.10
Civil Rule 26(c) allows the court to deny discovery, to designate
certain terms and conditions for discovery, to regulate the
method of discovery, and to limit the scope of discovery.11
1. The superior courts protective order struck a
reasonable balance between DeNardos right to
discovery and Baxs right to be protected from
unduly intrusive discovery.
The superior court did not abuse its discretion when it
limited DeNardos discovery to facts relevant to his defamation
claim. DeNardos defamation claim centered on whether Bax made
defamatory statements to her coworkers that she was worried
DeNardo was stalking her and whether these statements were made
with malice. The superior courts order confining discovery to
whether Bax ever informed witnesses that she had been stalked or
harassed by DeNardo, what such stalking or harassment consisted
of, and the basis for Baxs stated belief, struck a reasonable
balance between DeNardos right to discovery on his claim, and
Baxs right to be protected from annoyance, embarrassment,
oppression, or undue burden or expense.12
The superior courts order that DeNardo was not
permitted to elicit information about Baxs personal life or
social relationships and was not entitled to Baxs address also
achieved a reasonable balance. In seeking a protective order,
Bax informed the trial court that she was gravely concerned about
disclosing her current address to Mr. DeNardo for the very reason
that has become the subject of this lawsuit: Mr. DeNardo
followed her on several occasions in the past, eavesdropped on
her private conversations at work, and reportedly has shown up
unexpectedly near the residences of at least two of their former
female co-workers. Given the nature of the controversy a
defamation claim based on Baxs expression that she was worried
DeNardo was stalking her, which was only brought to DeNardos
attention in an affidavit in support of a motion seeking a secure
location to conduct a deposition for fear that DeNardo was
carrying a weapon the court was well within the bounds of its
discretion in limiting access to this personal and only
tangentially relevant information. Because of the nature of the
dispute, the court also reasonably prohibited DeNardo from
contacting Baxs young daughter. Moreover, there is no indication
from the record that Baxs daughter would be likely to provide any
relevant evidence.
DeNardos arguments that the courts protective order
restricted the presentation of facts on summary judgment, and
that Baxs family members, former husband, former employers, and
neighbors basically were ruled out of bounds are unpersuasive in
light of both the reasonableness of the superior courts order and
the fact that DeNardo made no effort to depose any witnesses to
support his claim within the sensible parameters drawn by the
superior court.
We therefore conclude that the superior court did not
abuse its discretion when it crafted a protective order designed
to balance Mr. DeNardos right to the discovery of relevant
information against Ms. Baxs right to privacy and her fears for
the personal safety of herself and her daughter.
2. The superior courts protective order did not
violate the attorney work product privilege.
DeNardo also argues that the superior courts order
allowing DeNardo to interview and depose witnesses only in the
presence of Baxs counsel violated the work product privilege. He
alleges that the protective order affected [his] interview
strategy, the witness testimony, and allowed Bax to be privy to
the content of [his] notes and fact collection. In so arguing,
DeNardo misconstrues the work product privilege.
The attorney work product privilege is designed to
protect the mental impressions, conclusions, and opinions of an
attorney in the preparation of materials for use in litigation.13
As set forth in Langdon v. Champion, in order for materials to
qualify for work product protection, the material involved must
be: (1) a document or other tangible thing, (2) prepared in
anticipation of litigation or for trial, and (3) prepared by or
for the opposing partys attorney or representative.14
Bax did not seek discovery of any documents or tangible
items prepared by DeNardo for use in this litigation that could
potentially be subject to the work product privilege, nor did the
protective order compel production of or even address any such
materials. Additionally, the mere presence of Baxs counsel at
depositions and in witness interviews would not violate the
purposes of the work product privilege. Baxs counsel, through
her presence, would not have access to DeNardos mental
impressions, conclusions, and opinions. The protective order
therefore did not violate the work product privilege.
C. Summary Judgment Was Properly Granted Because Baxs
Statements to Coworkers Were Privileged and DeNardo
Presented No Evidence that the Privilege Was Abused.
In order for a defamation claim to succeed, a plaintiff
must establish:
(1) a false and defamatory statement; (2) an
unprivileged publication to a third party;
(3) fault amounting at least to negligence;
and (4) the existence of either per se
actionability or special harm.[15]
The superior court determined that DeNardo failed to establish
the second element, an unprivileged communication, and granted
summary judgment in favor of Bax. The superior court reasoned
that the statements Bax made to coworkers that she felt she was
being stalked were conditionally privileged as statements of
concern about personal safety in the workplace.
DeNardo does not challenge the superior courts
determination that Baxs statements were privileged. Rather, he
raises a claim that he was entitled to a jury trial on whether
Bax abused the conditional privilege. But because we have never
directly addressed the question whether a conditional privilege
exists with respect to statements among coworkers about personal
safety in the workplace, we first recognize that such a privilege
applies.
In the past, we have recognized a conditional privilege
based on a joint business interest or an employer/employee
relationship when a statement is made for the protection of a
lawful business, professional, property or other pecuniary
interest. 16 And in Taranto v. North Slope Borough, we found that
speech on matters of public safety is privileged.17 While
communications among coworkers concerning personal safety in the
workplace do not fall squarely within the ambit of either of
these recognized privileges, our previous acknowledgment of the
importance of protecting speech regarding business interests and
public health and safety lends support to recognition of a
privilege in this case.
We will acknowledge a conditional privilege when a
person having a common interest in a particular subject matter
believes that there is information that another sharing the
common interest is entitled to know.18 According to the
Restatement (Second) of Torts, [a]n occasion makes a publication
conditionally privileged if the circumstances induce a correct or
reasonable belief that (a) there is information that affects a
sufficiently important interest of the publisher, and (b) the
recipients knowledge of the defamatory matter will be of service
in the lawful protection of the interest.19 Where, as here, a
worker reveals to coworkers that she is concerned that another
coworker might be stalking her, a sufficiently important interest
to the statements publisher, her personal safety, is at stake.
Furthermore, by alerting coworkers to her fears, Bax protected
her interest in personal safety by attuning coworkers to the
possibility that she was the victim of dangerous behavior.
Recognition of a privilege under these circumstances is necessary
in order to facilitate an environment in which employees feel
safe while performing their duties.
At the summary judgment stage, it was Baxs initial
burden to establish that she was entitled to prevail as a matter
of law, by demonstrating that a conditional privilege applies and
that she did not abuse the applicable conditional privilege. In
the trial court, Bax satisfied this initial burden by relying on
her federal court affidavit as evidence that she did not abuse
the privilege, arguing in her briefing to the trial court:
In her motion, Ms. Bax presented evidence
that she did not abuse the privilege. Ms.
Baxs affidavit states: When we [Ms. Bax and
Mr. DeNardo] worked together at ANI [Alaska
Newspapers, Inc.] there were several
occasions when Mr. DeNardo followed me in his
vehicle. I was worried that he was stalking
me.. . . Therefore, the proof that Ms. Bax
actually saw Mr. DeNardo (or at least thought
she did) is her affidavit itself. Ms. Baxs
sworn affidavit shows that her statements
were not made knowing they were false, and
that her statements were not made with a
reckless disregard for the truth.
Once Bax established a prima facie case that a conditional
privilege applied and that she did not abuse the privilege, the
burden shifted to DeNardo to show that the privilege had been
abused.20 We have established that a conditional privilege may be
abused:
(1) when there is malice the publisher had
knowledge or reckless disregard as to
the falsity of the defamatory matter;
(2) because the defamatory matter is
published for some purpose other than
that for which the particular privilege
is given;
(3) because the publication is made to some
person not reasonably believed to be
necessary for the accomplishment of the
purpose of the particular privilege; or
(4) because the publication includes
defamatory matter not reasonably
believed to be necessary to accomplish
the purpose for which the occasion is
privileged.[21]
Before the superior court, DeNardo contended that Bax
abused the conditional privilege because she acted with malice:
knowledge or reckless disregard as to the falsity of her
statements. Because the actual malice test for determining abuse
of a conditional privilege is subjective, at the summary judgment
stage the court must determine whether there is a genuine issue
of material fact on whether [the defendant] entertained serious
doubts as to the truth of the statements.22 We note that the
false and defamatory comment that Bax allegedly made was that Bax
was worried that DeNardo was stalking her and not that he was in
fact stalking her. On summary judgment, DeNardo therefore has
the burden of raising a material issue of fact on the question
whether Bax entertained serious doubts about the truth of her
statement that she was subjectively worried DeNardo was stalking
her.
In support of DeNardos claim that Baxs statement was
made with malice, DeNardo essentially makes three arguments: (1)
since Bax did not publish her statement of concern widely enough,
she was not actually worried that DeNardo was stalking her; (2)
Bax had a motive to lie because she and DeNardo had a workplace
rivalry, which resulted in DeNardo naming Bax as a defendant in
his federal lawsuit against his employer; and (3) during the
intermission of DeNardos deposition in the federal lawsuit, Bax
shared lunch with DeNardo, Parsons, and Harris, and [n]obody
displayed any fear and nobody objected. Even drawing all
reasonable inferences in favor of DeNardo as the non-moving
party, these allegations fail to raise a genuine issue of
material fact on the question whether Bax entertained serious
doubts as to the truth of her statement that she subjectively
believed DeNardo was stalking her.
On the issue of the narrow scope of publication,
DeNardo noted in his opposition to Baxs summary judgment motion
that Bax only spoke to sales manager Brandy Johnson, and co-
workers Holly Parsons and Annie Harris. Bax never told her
husband, children, family, neighbors, Calista Corporation
management, Alaska Newspapers Inc. management, or any
governmental authority about plaintiffs stalking! He also noted
that [o]ne day Bax saw [DeNardo] entering the Fred Meyer on
Dimond after work. She never reported [DeNardo] was stalking
her.
DeNardo does not meet his burden by pointing to the
limited scope of Baxs publication. As DeNardo concedes, Bax
expressed her concerns solely to her coworkers those who knew
DeNardo and were in the best position to observe the interaction
between Bax and DeNardo in the workplace on a daily basis. It
would not be reasonable to infer that Bax had serious doubts that
her statements were true simply because she only discussed her
concerns with those most familiar with her situation and those
best able to assist her if DeNardo, a coworker, turned out to in
fact be stalking her.
Moreover, excessive publication to persons not
reasonably believed to be necessary for the accomplishment of the
purpose of the privilege would constitute abuse of the privilege.23
That Bax limited the publication of her statement to two
coworkers and her supervisor those most suited to respond if
Baxs subjective fear that DeNardo was stalking her proved true
supports the conclusion that her statement was well within the
bounds of the common interest privilege in workplace safety, and
not that Bax doubted the truth of her statements. In fact, the
scope of Baxs publication appears to have been so narrow that
DeNardo did not even learn about Baxs concern until he read her
affidavit in the federal lawsuit when Baxs attorney, for fear
that DeNardo was carrying a weapon, moved to relocate his
deposition to federal court.
Furthermore, DeNardo had the opportunity to question
witnesses about the basis for Baxs belief that DeNardo was
stalking her in order to bolster his claim that she entertained
doubt as to the truth of her statements, but he declined to take
advantage of that opportunity when he failed to depose any
witnesses. The mere suggestion that Bax would have told her
husband, children, family, friends, neighbors, etc., had she
really believed DeNardo was stalking her is insufficient to raise
a genuine issue of material fact that she entertained serious
doubts that she was worried DeNardo was stalking her.
DeNardo points to evidence that Bax had a motive to
defame him because she coveted his customer lists and commissions
and because he filed an evaluation and notice of discrimination
of a hostile workplace naming Bax as one of the perpetrators.
DeNardo also notes that he named Bax as a plaintiff in the
federal lawsuit filed against his former employers. Affidavits
attached to DeNardos opposition to Baxs summary judgment motion
could support an inference that there was some ill will between
DeNardo and Bax when they were coworkers at ANI. For example,
incorporated into DeNardos brief were interrogatories of Calista
Corporation and ANI from the federal lawsuit. When asked about
oral or written complaints about DeNardo, Calista Corporation and
ANI responded:
On a few occasions, Holly Parsons and Joy Bax
had disputes with plaintiff [DeNardo]
regarding who was entitled to commissions on
ads which were brought to the attention of
Brandy Johnson and/or Chris Casati. Holly
Parsons and Joy Bax also discussed with
Brandy Johnson and/or Chris Casati their
concerns about plaintiffs unilateral
declaration that certain sales prospects
belonged to plaintiff, and concerns that
plaintiff attempted to take over sales
prospects that they were already pursuing.
Joy Bax expressed concern to Brandy Johnson
that plaintiff seemed to listen in on her
telephone conversations, and listed prospects
on his cold call list the week after Ms. Bax
had had those prospects on her cold call
list.
But evidence of ill will alone is not sufficient to establish
abuse of the privilege. According to the Restatement (Second) of
Torts 603 cmt. a (1977):
[A] publication of defamatory matter upon an
occasion giving rise to a privilege, if made
solely from spite or ill will, is an abuse
and not a use of the privilege. However, if
the publication is made for the purpose of
protecting the interest in question, the fact
that the publication is inspired in part by
resentment or indignation at the supposed
misconduct of the person defamed does not
constitute an abuse of the privilege.
(Emphasis added.) In most jurisdictions, evidence that a
defendant disliked a plaintiff is insufficient to establish abuse
of the privilege.24 Instead, [i]t must be shown that the improper
motive was predominant.25 For example, the United States Court of
Appeals for the District of Columbia has explained that
the mere existence of ill will on the part of
the publisher toward the subject of the
publication does not defeat the publishers
privilege if the privilege is otherwise
established by the occasion and a proper
purpose. Rather, the court looks to the
primary motive by which the defendant is
apparently inspired; and, the fact that he
feels resentment and indignation towards the
plaintiff and enjoys defaming him will not
forfeit the privilege so long as the primary
purpose is to further the interest which is
entitled to protection.[26]
Here DeNardo alleges that Bax harbored ill will toward
him because she competed with him for customers and commissions
when they were employees at ANI and because he implicated her in
a workplace discrimination claim at both ANI and in federal
court. But evidence that Bax might have disliked DeNardo does
not cast doubt upon her statement that she feared DeNardo was
stalking her. DeNardo even concedes that he saw Bax in the
parking lot of Fred Meyer.27 His allegations of animosity between
himself and Bax do not even speak to the question whether she
might have actually felt fear when she encountered him. He
therefore did not raise a question of fact that Baxs statement
was made solely from spite or ill will.28
It bears repeating that DeNardos claim is based on a
comment that Bax made in an affidavit in an unrelated federal
case which was filed because DeNardo refused to answer whether he
was carrying a weapon in a deposition. Bax informed the court:
When we worked together at ANI, there were
several occasions when Mr. DeNardo followed
me in his vehicle. I was worried that he was
stalking me. I have expressed concern about
this to Holly Parsons and other defendants in
this action, as well as to Ms. Rohlf. Annie
Harris has expressed concern to me that Mr.
DeNardo was loitering around her personal
residence last fall. Holly Parsons has
expressed similar concerns. Based on my
observations and knowledge of Mr. DeNardo
while we worked together at ANI, and based on
these incidents, I am very concerned about my
personal safety in Mr. DeNardos presence.
Baxs publication was made for the purpose of protecting
the interest in question, workplace safety, and therefore the
fact that the publication might have been inspired in part by
resentment or indignation at the supposed misconduct of [DeNardo]
does not constitute an abuse of the privilege.29
Finally, DeNardo does not meet his burden when he notes
that during the intermission of DeNardos deposition in the
federal lawsuit, Bax shared lunch with DeNardo, Parsons and
Harris, and [n]obody displayed any fear and nobody objected. The
fact that DeNardo and Bax publicly ate lunch together during an
intermission from his deposition and DeNardo did not perceive Bax
display any fear does nothing to further his argument that she
entertained serious doubts as to the truth of the statements she
made to coworkers when she and DeNardo were both employed at ANI.
While DeNardo arguably set forth sufficient evidence to
establish that Bax disliked him, he set forth no evidence to
establish that Bax entertained serious doubts as to the truth of
the statements.30 Because DeNardo has failed to meet his burden,
we affirm the superior courts decision to grant summary judgment
to Bax.
IV. CONCLUSION
For the foregoing reasons, we conclude that the
superior courts protective order was not an abuse of discretion.
Because Baxs statement that she feared DeNardo was stalking her
was privileged as a statement of concern about personal safety in
the workplace, and because DeNardo has not raised a genuine issue
of material fact with respect to abuse of the privilege, we also
AFFIRM the superior courts grant of summary judgment to Bax.
EASTAUGH, Justice, dissenting.
Introduction. I respectfully dissent. The court
affirms Baxs summary judgment because it concludes that DeNardo
did not demonstrate the presence of a genuine issue of material
fact about whether Bax abused the conditional privilege that
attached to the statements she made to coworkers.1 I agree that
Bax made out a prima facie showing that her statements were
conditionally privileged because they ostensibly addressed
workplace or (perhaps) mutual safety.2 But this simply means
that we must decide whether, as DeNardo argued below and argues
here, there are genuine factual disputes about whether Bax
abused, and therefore lost, the conditional privilege. In my
view, the record reveals at least two genuine factual issues
material to that question: whether she had knowledge or reckless
disregard as to the falsity of her statements to coworkers that
DeNardo was following her or stalking her, and whether she spoke
for a privileged purpose. The record also raises questions about
whether the words she actually spoke to coworkers expressed an
opinion rather than a statement of fact. We should therefore
vacate the summary judgment and remand.
Controlling legal principles. Before we turn to the
pertinent evidence, it is useful to consider the two controlling
legal principles, one substantive and one procedural, that set
the stage for the analysis we should follow.
The substantive principle concerns the scope of the
conditional privilege that attaches to communications about
workplace safety or other matters of common interest. A
declarant abuses a conditional privilege if (1) she knows the
defamatory matter to be false or acts in reckless disregard as to
its truth or falsity,3 (2) the defamatory matter is published for
some purpose other than that for which the particular privilege
is given (e.g., solely out of spite or ill will), (3) the
publication is made to an unnecessary recipient, or (4) the
publication includes defamatory matter not reasonably believed to
be necessary to accomplish the purpose for which the occasion is
privileged.4 The first two grounds potentially apply here.
The procedural principle concerns the standard for
granting and reviewing summary judgment in Alaska. Summary
judgment may not be entered and therefore may not be sustained on
appeal if there is a genuine issue of material fact.5 It is a
legal question whether a genuine issue of material fact exists;
we therefore exercise our independent judgment in reviewing the
facts and the inferences reasonably drawn from them in favor of
the appellant when we decide whether a genuine, material factual
dispute exists.6
Alaska law imposes a low threshold for defeating a
motion for summary judgment. In Moffatt v. Brown, a libel case,
we declined to adopt the Supreme Courts interpretation of the
federal summary judgment standard announced in Anderson v.
Liberty Lobby, Inc.7 As we explained:
Instead of adopting the summary judgment
standard articulated in Anderson, we choose
to continue our longstanding interpretation
of our summary judgment standard as contained
in Civil Rule 56(c). Civil Rule 56(c)
directs a court to grant a motion for summary
judgment when there is no genuine issue as to
any material fact and . . . the moving party
is entitled to judgment as a matter of law.
We decline to incorporate the applicable
substantive evidentiary standard into this
states summary judgment practice [as was done
in Anderson]. . . . Rule 56(c) only requires
a showing that a genuine issue of material
fact exists to be litigated, and not a
showing that a party will ultimately prevail
at trial.[8]
We noted that as a consequence of this holding, it is somewhat
harder for a libel defendant to win summary judgment in our state
courts, using the no genuine issue of material fact standard,
than in federal court.9 Although a non-movant must present more
than a scintilla of evidence to avoid summary judgment, the non-
movant need only present enough evidence to reasonably tend[] to
dispute or contradict the evidence presented by the movant.10
Moreover, we have held that we will not weigh evidence when
reviewing a decision on summary judgment.11 [T]here is a genuine
issue of material fact as long as the nonmovant has presented
some evidence in support of its legal theory.12
The standard for granting and upholding summary
judgments in Alaska is therefore more rigorous than the federal
standard.13 It does not matter under the Alaska standard which
party will ultimately bear the burden of persuasion should the
case go to trial.14 Whether a defendant has abused a privilege
is a question of fact for the jury unless the facts are such that
only one conclusion can reasonably be drawn.15 Here, the
question on summary judgment should be whether DeNardo raised a
genuine issue of material fact about whether Bax abused the
conditional privilege; stated differently, the question is
whether the court file contained evidence reasonably
contradicting Baxs claim that her statements were protected by
the privilege.16 In this case as it is presented to us, all that
matters is whether there is more than a scintilla of evidence
demonstrating the existence of facts that, if believed, would
permit a reasonable person to find that either (1) Bax knew her
statements were false, (2) she entertained serious doubts as to
their truth, or (3) her primary purpose was not to advance the
identified privileged interest.17
Circumstantial evidence is normally needed to establish
an actors purpose or intent, because in the context of disputed
endeavors, actors often do not expressly admit their true reasons
for acting.18 Circumstantial evidence is the only evidence
presently available relevant to Baxs belief and intentions and to
whether summary judgment was correctly entered against DeNardo.
What are the sources of the relevant facts? We must
look to sources that satisfy Alaska Civil Rule 56(c). Here these
sources include DeNardos verified complaint, his verified
opposition to Baxs summary judgment motion, Baxs sworn responses
to interrogatories and production requests, and the affidavits of
Bax and coworker Holly Parsons.19
Factual background. DeNardo filed his defamation suit
against Bax and others after Bax served and filed her April 4,
2001 affidavit in DeNardos then-pending federal action, DeNardo
v. Calista Corp., et al., Case No. A00309 Civil. Baxs affidavit
supported her motion for a protective order to require that
DeNardos unfinished deposition be completed at the federal
courthouse. It also revealed to DeNardo that she had previously
spoken about him to others. Thus, it stated that she and DeNardo
had worked at ANI for about seven months as advertising sales
representatives, and that she had been concerned about her
personal safety in DeNardos presence and was extremely concerned
because he had refused at his deposition to answer whether he had
brought a weapon to the deposition. She also stated in her
affidavit that
when we worked together at ANI, there were
several occasions when Mr. DeNardo followed
me in his vehicle. I was worried that he was
stalking me. I have expressed concern about
this to Holly Parsons and other defendants in
this action, as well as to [my attorney].
What Bax said in her affidavit for the federal court
was absolutely privileged, as Judge Gleason correctly ruled
below.20 DeNardo does not appear to argue here to the contrary.
He argues instead that what Bax previously told her coworkers was
actionable because Bax abused the conditional privilege that
potentially applied.
What Bax said (or may have said). The court fails to
address the potentially critical threshold question about what
Bax actually told her coworkers. Its opinion assumes that Bax
told them that she was worried that he was stalking me.21
The courts assumption apparently derives from Baxs
April 4, 2001 affidavit. But that affidavit states only that Bax
was worried that he was stalking me, not that she had told
coworkers that she was worried that he was stalking me. The
affidavit only generally describes what she told coworkers; it
does not describe the content of any conversation with precision.
It is unclear from the record exactly what Bax told her
coworkers.22 There is a difference between what a declarant
thinks and what a declarant actually declares. What Bax actually
told coworkers is material because the courts opinion assumes she
was merely expressing to coworkers an opinion (belief, concern,
worry), rather than a matter of fact.23 It may also be assuming,
among other things, that DeNardo must demonstrate that Bax knew
she was not actually worried or that she spoke recklessly when
she supposedly said she was worried, an arguably harder thing to
establish than demonstrating that, when she accused him of
stalking her, she either knew the accusation was false or
recklessly disregarded its falsity.
Under Alaska law, defamation actions are
constitutionally barred where the allegedly defamatory statements
are expressions of ideas and cannot reasonably be interpreted as
stating actual facts about an individual. 24 The critical
distinction is between statements represented as expressions of
ideas and statements purporting to represent facts.25 To
ascertain whether a statement is factual, this court considers
the context of the statement, including the speakers use of
cautionary or equivocating words.26 If the speaker is expressing
a subjective view, a speculation, or a theory, rather than
claiming to possess objectively verifiable facts that confirm the
truth of the statement, the statement is not actionable.27 The
courts opinion today seems to analyze the defamation claim as
though Baxs statements were not statements of fact.28
We must therefore start by determining whether a
factfinder could reasonably find from the record that Bax told
others as a matter of fact that DeNardo stalked her, or followed
her under circumstances that implied stalking. Her April 4, 2001
affidavit is ambiguous in describing what she said in 2000.
Taken in isolation, it is possible to read it to imply that she
told coworkers that she was worried DeNardo was stalking her, and
that she was therefore only expressing a qualified opinion, not a
statement of fact. The courts opinion seems to rely on this
implication in deciding that it was not error to grant summary
judgment to Bax.29
But that implication cannot be taken in isolation, and
to do so would improperly take inferences in favor of the movant.
Indeed, the words of the affidavit also reasonably permit an
inference unfavorable to the movant, that she had expressed an
unqualified statement of fact to coworkers that DeNardo had
stalked her.
In any event, we must look beyond the affidavit to
other evidence before the superior court. Baxs statements in
discovery, supplied to the superior court by DeNardo, contain no
such qualification. An interrogatory asked her to describe her
communications with others regarding the facts of this case. Her
sworn answer stated that during conversations when she worked at
ANI, she told Holly Parsons that she had also noticed plaintiff
follow her in his vehicle a couple of times, and seemed to be
following her into a store on one occasion. It also stated that
she also told Ms. Parsons knowing plaintiff had followed her made
her uncomfortable. Her answer further stated that [o]n one
occasion, Ms. Bax commented to Brandy Johnson, their supervisor,
about plaintiffs following her . . . . Likewise, when DeNardos
discovery requests asked Bax what actions Brandy Johnson took
after Bax complained of plaintiffs stalking, Bax responded under
oath that she did not know what, if any, actions were taken after
she mentioned that she had seen DeNardo following her. (Emphasis
added.)
For purposes of considering the propriety of Baxs
summary judgment, these discovery answers compel an inference
that Bax unqualifiedly told coworkers that DeNardo had followed
her, not that she merely told them that she was worried or was
concerned or had formed a belief that DeNardo had followed her.
In my view, the opinions misapprehension about what Bax
said misdirects the remainder of the opinions analysis, both
factually and legally. If this genuine issue is material, as the
courts treatment implies, we must set aside the summary judgment.
This brings us to the two main factual disputes that
preclude summary judgment.
Knowledge or reckless disregard as to falsity of
statements. The first dispute is whether Bax knew of or
recklessly disregarded the (possible) falsity of her statements
that DeNardo had followed or stalked her. DeNardos defamation
complaint was verified. It is therefore to be treated as an
affidavit.30 It alleged that Bax and others had stated that
DeNardo was stalking them or had stalked them. It then alleged
that DeNardo at no time stalked, followed, and/or loitered
outside defendants residences. Although that denial may be
ambiguous it is unclear whether outside defendants residences
modifies stalked or followed the verified complaint also
asserted that the defendants (and thus Baxs) statements that
DeNardo had stalked Bax were false. DeNardo also expressed an
unqualified denial when Bax moved for summary judgment; his
verified opposition to her motion stated: Plaintiff never stalked
Joy Bax James, Holly Parsons, or Annie Harris. In response to
Baxs assertion in her summary judgment motion that plaintiff
never denied stalking Bax, DeNardo stated in his verified
opposition: Au contraire, plaintiff specifically denied stalking
in III 12 in plaintiffs verified complaint.
Other circumstances also reasonably permit inferences
that DeNardo had not actually stalked or followed Bax and that
Bax did not really think he had.31 This included evidence,
contained in Baxs discovery responses, that Bax had not
complained of stalking to anyone but her coworkers. As DeNardo
points out, her discovery responses revealed that she did not
complain to her husband, her two children (one of whom was then
about twelve years old), police, or ANI supervisors, and that she
did not tell any of them that she thought DeNardo presented a
threat to workplace safety because he had followed or stalked
her. Bax admitted in discovery that there were never any verbal
or written statements that DeNardo had stalked Bax. Furthermore,
in discovery Bax identified no witnesses to stalking and did not
remember the dates of any stalking. DeNardo also correctly noted
that Bax, who had complained to sales manager Brandy Johnson,
never followed up regarding her stalking complaints and did not
know what, if any, actions were taken by Parsons.
DeNardos verified opposition described circumstances
that he contended confirmed that Bax had spoken falsely in
accusing him of stalking her. Some of these circumstances may be
suspect because they were not a matter of personal prior
knowledge or observation to DeNardo. But to the extent these
circumstances are based on DeNardos interpretation of what Bax
and others said in response to discovery and in other court
papers, we may consider them in deciding whether summary judgment
was entered erroneously. These circumstances, if they are
correct, tend to support a conclusion that DeNardo did not
actually stalk or follow Bax;32 they consequently also support a
conclusion that Bax knew that DeNardo had not followed or stalked
her and therefore that she was not really worried that DeNardo
had followed or stalked her.33
DeNardos verified opposition also described several
circumstances about which he had personal knowledge that would
reasonably permit an inference that Bax was not actually afraid
of DeNardo or that she had spoken falsely to others about
DeNardo. Thus, his opposition asserted that during a March 8,
2001 intermission in his deposition, he had shared lunch with
Bax, Parsons, and Harris. About that event he stated that
[n]obody displayed any fear and nobody objected. This
circumstance would permit (although certainly not compel) a
finding that Bax did not, even as of 2001, consider DeNardo to
present a threat of harm.34 Given the assertion in her 2001
affidavit that she was currently concerned about her safety in
DeNardos presence, a shared lunch also seems to raise credibility
questions about the truth of the other averments in her
affidavit. It thus potentially raises a question about whether
it is true that in 2000 she was worried about her safety and
whether she was truthful when she allegedly told coworkers that
DeNardo had followed or stalked her. DeNardos opposition also
asserted that he had filed, when he was her coworker at ANI, an
evaluation and notice of discrimination that named Bax as a major
perpetrator in creating a hostile work place. Baxs knowledge of
his complaint is some evidence that would tend to show that Bax
might have had a motive retaliation to speak falsely or
recklessly. Likewise, evidence of her alleged interest in his
customer lists and commissions would tend to demonstrate another
motive for knowingly false or reckless speech.
Purpose of the statements. This brings us to the last
factual dispute: whether Bax in fact spoke for a purpose that
was privileged. DeNardo asserted in his verified complaint that
Baxs statements were made maliciously, and were intended to harm
him. DeNardo asserts here that Bax was motivated to accuse him
falsely by her persistent efforts coveting DeNardos customer
lists and commissions. He asserts that Bax knew her statements
were false and that she intended to injure plaintiff in his
reputation and well-being. DeNardo claims that the malicious
groundlessness of her stalking accusations must be considered in
context of her discovery responses. He claims that she admits
she read DeNardos office evaluation, which DeNardo characterizes
as detailing Baxs activities to hijack DeNardos advertising
accounts and create a discriminatory and hostile work
environment. He asserts that it is important that her accusation
took place after she read DeNardos evaluation accusing her and
the other employees of account theft and heinous discriminatory
conduct. DeNardo asserts that Bax fabricated her stalking
accusations to cause DeNardos termination and obtain his client
list.35
The evidence that potentially supports a finding that
Bax acted either maliciously or not for the privileged purpose is
not necessarily compelling, but it is nonetheless sufficient to
preclude summary judgment on this issue.36 DeNardo had disputes
with Bax and other coworkers about retaining his accounts. There
were mutual accusations of account piracy. DeNardos ten-page
feedback evaluation of February 11, 2000 asserted that accounts
had been distributed in a discriminatory fashion that disfavored
him and favored Bax. He asserted in the same document that Bax
had continually attempted to claim his accounts as her own. His
June 23, 2000 complaint to ANI management asserted that Bax and
others had purposely joined together to create a hostile and
vindictive office atmosphere focused against me. These
assertions are not easily documented; the existence of the two
documents and Baxs apparent admission that she had seen them
reasonably permit an inference that there were reasons why, apart
from workplace safety, Bax might have told others that DeNardo
was following or stalking her.
Moreover, the facts discussed above that permit an
inference that Bax had falsely accused DeNardo of stalking her
also imply that her motive for saying those things was not to
promote workplace safety. Thus, evidence that Bax had not
complained of stalking to her husband, her children, police, or
ANI supervisors and that she had not told any of them that
DeNardo presented a threat to workplace safety because he had
followed or stalked her, reasonably implies that Bax was not
motivated by workplace safety or even personal safety when she
spoke. It implies instead that she spoke for some other and
therefore unprivileged and impermissible purpose. Likewise,
DeNardo noted, correctly it seems, that Bax, who had complained
to sales manager Brandy Johnson, never followed up regarding her
stalking complaints and did not know what, if any, actions were
taken by Parsons. And again, DeNardo contended that personal
safety could not have been Baxs genuine reason for speaking,
given that DeNardo shared lunch with Bax and other defendants
during an intermission in his 2001 deposition. Having lunch with
DeNardo also seems potentially inconsistent with Baxs assertion
in her 2001 affidavit that I am very concerned about my personal
safety in Mr. DeNardos presence. This raises a credibility
question that casts into doubt her predominant motive for
speaking.
Conclusion. Any one of these three factual disputes
precludes summary judgment and precludes affirmance. We should
therefore vacate the summary judgment and remand for further
proceedings.
_______________________________
1 Bax conditionally appeals the superior courts
determination that the word stalking is defamatory per se given
the context in which it was used. But in doing so, Bax
misapprehends the superior courts decision, which reached no
conclusion as to whether use of the phrase stalking in this
context constituted defamation per se. The superior court stated
that because stalking is a second degree misdemeanor, for
purposes of . . . summary judgment I would find that [defamation
per se] would not be a basis to accord the defendant the
requested relief. Because the superior court did not decide the
question whether Baxs comments constituted defamation per se, and
because we affirm the superior courts grant of summary judgment
on the ground that Baxs comments were privileged, we need not
address Baxs argument.
2 Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990).
3 Fuller v. City of Homer, 113 P.3d 659, 662 (Alaska
2005).
4 Briggs v. Newton, 984 P.2d 1113, 1117 (Alaska 1999).
5 Alakayak v. British Columbia Packers, Ltd., 48 P.3d
432, 449 (Alaska 2002).
6 Schneider v. PayN Save Corp., 723 P.2d 619, 624-25
(Alaska 1986).
7 French v. Jadon, Inc., 911 P.2d 20, 33 (Alaska 1996).
8 Id.
9 Taranto v. North Slope Borough, 992 P.2d 1111, 1113
(Alaska 1999).
10 Alaska R. Civ. P. 26(c).
11 Id.
12 Id.
13 Walden v. Dept of Transp., 27 P.3d 297, 308 (Alaska
2001).
14 752 P.2d 999, 1005 (Alaska 1988) (citing Alaska R. Civ.
P. 26(b)(3); 8 C. Wright & A. Miller, Federal Practice &
Procedure 2024, at 196-97 (1970); 4 J. Moore, J. Lucas & G.
Grotheer, Moores Federal Practice 26.64[1]-[4], at 26-348 to 26-
389).
15 French, 911 P.2d at 32; see also Restatement (Second)
of Torts 558 (1977).
16 Briggs, 984 P.2d at 1121 (quoting Schneider, 723 P.2d
at 623 (internal citations omitted)).
17 992 P.2d at 1115.
18 Schneider, 723 P.2d at 623-24 (citing Lull v. Wick
Constr. Co., 614 P.2d 321 (Alaska 1980)) (internal quotation
marks omitted).
19 Restatement (Second) of Torts 594 (1977).
20 See Briggs, 984 P.2d at 1121 (Ordinarily, once a
defendant establishes the existence of a privilege the plaintiff
has the burden of showing that it has been abused.).
21 Schneider, 723 P.2d at 624-25 (adopting standards set
forth in Restatement (Second) of Torts 599 cmt. a (1977)).
22 Mount Juneau Enters., Inc. v. Juneau Empire, 891 P.2d
829, 834 (Alaska 1995).
23 Schneider, 723 P.2d at 624-25 (adopting standards set
forth in Restatement (Second) of Torts 599 cmt. a (1977)).
24 Robert D. Sack, Sack on Defamation: Libel, Slander, and
Related Problems 9.3.1 (2004).
25 Id.
26 Novecon Ltd. v. Bulgarian-American Enter. Fund, 190
F.3d 556, 567 (C.A.D.C. 1999) (internal citations omitted); see
also Liberman v. Gelstein, 605 N.E.2d 344, 350 (N.Y. 1992) (If
the defendants statements were made to further the interest
protected by the privilege, it matters not that defendant also
despised plaintiff.).
27 We are in accord with the superior courts assessment of
this incident:
[T]here has been nothing that has been
submitted in my reading of the record to
support a finding that Mr. DeNardo has shown
that Ms. Bax in making these statements was
making them with knowledge or reckless
disregard as to their apparent falsity.
Which is to say that I hear an acknowledgment
by Mr. DeNardo that in point of fact these
folks were walking out to their cars at the
same time and did have an encounter at a
shopping mall and Ms. Bax perceived that in a
way that Mr. DeNardo clearly takes issue
with, but he . . . has not presented any
evidence to support a finding that there was
knowledge or reckless disregard by Ms. Bax in
making these statements to her co-workers
regarding issues of safety at the workplace,
which is an issue of great concern to many
people and an appropriate issue to bring up
to ones co-workers.
28 See Restatement (Second) of Torts 603 cmt. a (1977).
29 See id.
30 See Mount Juneau Enters., Inc., 891 P.2d at 834.
1 Slip Op. at 19-20.
2 See Taranto v. North Slope Borough, 992 P.2d 1111, 1115
(Alaska 1999) (holding that speech on matters of public safety is
conditionally privileged); Restatement (Second) of Torts 594
(detailing conditional privilege for speech related to
sufficiently important interest of publisher).
3 A conditionally privileged declarant traditionally
abused the privilege if she did not believe the statement to be
true or lacked reasonable grounds for so believing. As a result
of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1972), in which the
Supreme Court held that strict liability in defamation is
unconstitutional, the traditional conditional privilege standard
was modified: mere negligence as to falsity, being required [now]
for all actions of defamation, is no longer treated as sufficient
to constitute abuse of a conditional privilege. Instead
knowledge or reckless disregard as to falsity is necessary for
this purpose. Restatement (Second) of Torts 599 cmt. d (1977).
This courts precedents have not been entirely clear on this
point. See Briggs v. Newton, 984 P.2d 1113, 1121 (Alaska 1995)
(determining whether declarant abused privilege by deciding
whether he had reasonable belief in truth of statement); accord
Schneider v. PayN Save, 723 P.2d 619, 625 (Alaska 1986).
4 Schneider, 723 P.2d at 62425 (adopting standards set
forth in Restatement (Second) of Torts 599 cmt. a (1977)).
5 See Alaska R. Civ. P. 56(c); Alakayak v. British
Columbia Packers, Ltd., 48 P.3d 432, 447 (Alaska 2002).
6 Alakayak, 48 P.3d at 447.
7 Moffatt v. Brown, 751 P.2d 939, 943 (Alaska 1988)
(discussing Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986)).
8 Id. at 94344 (internal citations omitted); see also
Alakayak, 48 P.3d at 449.
9 Moffatt, 751 P.2d at 944.
10 Alakayak, 48 P.3d at 449.
11 Id.
12 Id. (emphasis in original); see also Meyer v. State,
Dept of Revenue, Child Support Enforcement Div. ex rel. N.G.T.,
994 P.2d 365, 367 (Alaska 1999) (holding that putative fathers
sworn denial of paternity prevented summary judgment, even though
movant had presented strong scientific evidence showing
paternity, because any evidence sufficient to raise a genuine
issue of material fact precludes a summary finding of paternity)
(internal quotation marks omitted) (emphasis in original).
13 Bax does not argue that we should jettison that
standard in favor of the prevailing federal standard so we have
no occasion here to reconsider the appropriate standard.
14 See Ball v. Birch, Horton, Bittner & Cherot, 58 P.3d
481, 485 (Alaska 2002).
15 See Schneider, 723 P.2d at 624.
16 See Lull v. Wick Constr. Co., 614 P.2d 321, 325 (Alaska
1980) (holding that summary judgment was appropriately granted
because plaintiff had not established triable issue of fact
regarding whether declarant had abused conditional privilege).
17 The courts opinion states the standard as follows:
DeNardo . . . has the burden of raising a material issue of fact
on the question whether Bax entertained serious doubts about the
truth of her statement that she was subjectively worried DeNardo
was stalking her. Slip Op. at 14. That would be the correct
standard if the court were only required to consider whether Bax
abused the privilege by acting with actual malice i.e., with
knowledge or reckless disregard as to the falsity of the
defamatory statements. See Schneider, 723 P.2d at 624; Briggs,
984 P.2d at 1121. But the opinion then considers whether DeNardo
raised an issue about whether Bax abused the privilege by
publishing the defamatory matter for some purpose other than that
for which the privilege is given (i.e., solely for spite or ill
will). Slip Op. at 1518. See Schneider, 723 P.2d at 624;
Restatement (Second) of Torts 603 cmt. a (1977). The opinions
recitation of the standard is apparently too narrow.
18 See Kinzel v. Discovery Drilling, Inc., 93 P.3d 427,
43435 (Alaska 2004); see also Indus. Commercial Elec., Inc. v.
McLees, 101 P.3d 593, 600 (Alaska 2004) (holding that
circumstantial evidence in record permitted inference that
appellees alleged misrepresentation in contracting was
fraudulent); Phillips v. Mukluk Freightlines, Inc., 721 P.2d
1143, 1145 (Alaska 1986) (holding that circumstantial evidence
presented in expert witnesss affidavit sufficed to raise genuine
issue of material fact regarding whether appellee acted in bad
faith).
19 Verified pleadings and documents are equivalent to
affidavits. See Bennett v. Weimar, 975 P.2d 691, 695 (Alaska
1999) (citing Smith v. Thompson, 923 P.2d 101, 102 n.1 (Alaska
1996)).
20 Baxs assertions that DeNardo was potentially dangerous
did not convince the federal court. United States District Judge
H. Russel Holland denied the protective order motion, and stated:
The court has managed litigation involving
Mr. DeNardo for approximately fifteen years.
He has been involved in some thirty cases in
this court. The court has never had a report
of Mr. DeNardo behaving violently or having a
weapon at any time in connection with any of
these proceedings. The court is unpersuaded
that there is any reason to believe that Mr.
DeNardo would attempt to harm anyone in
connection with this case. If, as is
suggested, any of the parties or witnesses
believe that Mr. DeNardo has been stalking
them, that is a matter for the Anchorage
Police Department to look into.
Because the order denying Baxs motion is not in the
appellate record and was not before the superior court, I do not
rely on its entry or text to demonstrate error here. I refer to
it only to temper any premature conclusions a reader might draw
about DeNardo based on the repetition in the courts opinion and
in my dissent of Baxs comments about DeNardo. A court may
properly rely on the orders result as an exercise in judicial
notice, and on its text under the public records exception to the
hearsay rule. Hess v. State, 20 P.3d 1121, 1127 (Alaska 2001)
(The evidence reliably reflects the fact of acquittal. A court
thus may take judicial notice of the fact of an acquittal under
Alaska Rule of Evidence 201(b)(2), as implicitly requested here.
Or it may allow evidence of the acquittal to be introduced as a
hearsay exception under Alaska Rule of Evidence 803(8) because
the acquittal is a matter of public record.).
21 Slip Op. at 2, 14 (quoting part of Baxs April 4, 2001
affidavit).
22 The superior court did not attempt to quote Baxs
declarations; in granting Baxs motion for summary judgment, the
court stated that it found that Bax, to the extent that she made
comments to co-workers that she felt she was being followed, that
even if she used the word that she felt she was being stalked,
that those comments . . . were subject to privilege.
23 Thus, the courts opinion frequently quotes Baxs
affidavit, or characterizes her statements, as expressing worry,
concern, fear, or a belief that DeNardo was stalking her. Id. at
2, 3, 10, 12, 13-14, 15, 17, 18-19, 19-20. The opinion fails to
distinguish between what Bax stated in her 2001 affidavit about
what she believed and what she may have actually said to
coworkers. See id. at 1-2 (DeNardo based his claim on comments
made by Bax to coworkers that she was worried that [DeNardo] was
stalking [her]. ); id. at 10 (The superior court reasoned that
the statements Bax made to coworkers that she felt she was being
stalked were conditionally privileged as statements of concern
about personal safety in the workplace.); id. at 12 (Where, as
here, a worker reveals to coworkers that she is concerned that
another coworker might be stalking her, a sufficiently important
interest to the statements publisher, her personal safety, is at
stake.); id. at 13-14 (We note that the false and defamatory
comment that Bax allegedly made was that Bax was worried that
DeNardo was stalking her and not that he was in fact stalking
her.); id. at 15 (DeNardo had the opportunity to question
witnesses about the basis for Baxs belief that DeNardo was
stalking her . . . .); id. at 17 (But evidence that Bax might
have disliked DeNardo does not cast doubt upon her statement that
she feared DeNardo was stalking her.).
24 Sands v. Living Word Fellowship, 34 P.3d 955, 960
(Alaska 2001) (quoting Milkovich v. Lorain Journal Co., 497 U.S.
1, 20 (1990)); see also Moffatt, 751 P.2d at 945 (holding that
declarants use of word horrible to describe medical procedure was
simply the opinion of the author and was therefore protected by
First Amendment).
25 Kinzel, 93 P.3d at 439; see also id. at 43940 n.50
(noting that a distinction should be made between an evaluative-
type opinion and the deductive type, the latter actually imputing
facts that can be proven false and thus potentially actionable)
(quoting W. Page Keeton, et al., Prosser and Keeton on the Law of
Torts 113A, at 81415 (5th ed. 1984)).
26 Kinzel, 93 P.3d at 440 (considering whether prefatory
phrase I wonder made allegedly defamatory statement protected
conjecture); see also Haynes v. Alred A. Knopf, Inc., 8 F.3d
1222, 1227 (7th Cir. 1993), cited in Kinzel, 93 P.3d at 440 (A
statement of fact is not shielded from an action for defamation
by being prefaced with the words in my opinion, but if it is
plain that the speaker is expressing a subjective view . . . the
statement is not actionable.).
27 Kinzel, 93 P.3d at 440.
28 The courts opinion does not, however, directly consider
whether Baxs statements were statements of fact or expressions of
ideas. And the courts opinion suggests that the statements were
Baxs opinions, but does not discuss whether the statements were
protected by the First Amendment. Thus the courts opinion blends
the initial phase of the defamation analysis (i.e., were the
statements defamatory and actionable) with the abuse-of-the-
privilege analysis (i.e., was there malice or publication for
some other purpose). The same mistake contributed to the summary
judgment order (which was entered in reliance on our opinion in
Briggs v. Newton, 984 P.2d 1113, 1121 (Alaska 1995)).
29 Thus, the opinion frequently refers to the affidavit
and characterizes Baxs statements to coworkers in terms of worry,
concern, fear,or belief. Slip Op. at 2, 3, 10, 12, 13-14, 15,
17, 18-19, 19-20. These characterizations all appear to derive
from how Baxs affidavit impliedly described her statements.
30 See Bennett v. Weimar, 975 P.2d 691, 695 (Alaska 1999)
(citing Smith v. Thompson, 923 P.2d 101, 102 n.1 (Alaska 1996)).
31 Because there is no direct evidence of Baxs belief in
the truthfulness of her allegedly defamatory statements, DeNardos
most viable approach to showing abuse of the conditional
privilege on malice grounds is to convince the fact finder that
(a) Baxs statements that DeNardo stalked her were false and that
(b) Bax therefore must have known her belief that DeNardo had
stalked her was false.
32 The superior court itself declined to grant Bax summary
judgment on the falsity prong of her defamation claim. The
superior court noted that DeNardo had raised a triable issue of
fact regarding whether Baxs claim that DeNardo followed her was
false.
33 Thus, even if Bax actually did tell coworkers that she
was worried that DeNardo stalked her, DeNardo presented
sufficient evidence to put into genuine dispute whether she was
actually worried that he stalked her.
34 Such a finding on remand would also be supported by the
fact that the federal judge who denied Baxs protective order
motion apparently did not consider DeNardo to present a threat of
harm, either.
35 Likewise to similar effect, DeNardo asserts on appeal
that Bax deliberately made her per se defamatory stalking
accusations in order to obtain DeNardos advertising accounts,
destroy his credibility, and hide the extent of her
discriminatory conduct memorialized in DeNardos case against
Calista and Alaska Newspapers, Inc.
36 In contrast to the impression the courts opinion might
leave, Slip Op. at 15-18, DeNardo does not have to prove on
summary judgment that Baxs predominant purpose was spite or ill
will (or some other non-privileged purpose), but only needs to
raise a genuine issue such that reasonable jurors could disagree
over Baxs predominant purpose. See Hatten v. Union Oil Co. of
Cal., 778 P.2d 1150, 1153 (Alaska 1989) (holding that where
determining employers predominant motive for firing employee
involved balancing evidence and weighing credibility, question of
predominant motive should have been decided by trier of fact).
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