Filed 10/30/20 Phillips v. Sugarman CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DALE E. PHILLIPS,

 Plaintiff and Appellant,

v.

STEVEN A. SUGARMAN et al.,

 Defendants and Respondents.

 G058152

 (Super. Ct. No. 30-2018-01018415)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Derek W. 

Hunt, Judge. Affirmed.

Dale E. Phillips, in pro. per., for Plaintiff and Appellant.

Michelman & Robinson and Reuben A. Ginsburg for Defendants and 

Respondents.

* * *
2

This is an appeal following judgment after the trial court sustained 

demurrers without leave to amend and granted summary judgment in favor of Steven A. 

and Ainslie M. Sugarman (defendants or the Sugarmans)1and against Dale E. Phillips 

(Phillips or plaintiff). This case relates to a single interaction between Phillips, who 

formerly worked as a driver for Strack Chauffeured Transportation, Inc. (Strack) and the 

Sugarmans, who were passengers and clients of Strack. In short, he claims the 

Sugarmans lied about his actions during a trip, resulting in the termination of his 

employment. He filed a lawsuit, representing himself, against both Strack and the 

Sugarmans, although this appeal relates only to the Sugarmans.

In sum, Phillips argues that the Sugarmans’ demurrers to his causes of 

action for negligence, negligent infliction of emotional distress, and intentional infliction 

of emotional distress, and the court’s ruling granting summary judgment on their cause of 

action for defamation are subject to reversal. We conclude that Phillips inadequately 

pleaded his negligence-related claims and that amending his complaint would not cure 

the deficiencies. We further find that summary judgment on the defamation cause of 

action was appropriate as a matter of law and because of the lack of evidence 

demonstrating a triable issue of material fact. Accordingly, we affirm the judgment.

1 Due to their common surname, when needed, the Sugarmans are referred to by their 

first name for the ease of the reader.
3

I

FACTS2

Phillips began working as a driver for Strack in 2014. In approximately 

June and November 2017, complaints were received from different customers regarding 

Phillips’ performance. He had previously been counseled regarding his availability and 

visibility to clients.

On December 8, 2017, Phillips was assigned to drive Ainslie and her three 

children on an as-directed basis from 2:00 p.m. to 5:45 p.m. Ainslie had used Strack for 

transportation needs approximately 20 times that year, but had not previously been 

assigned Phillips as a driver.

Phillips picked up Ainslie and her children at a hotel in Newport Beach and 

drove them to South Coast Plaza. At approximately 3:25 p.m., Ainslie called Phillips 

requesting a pickup and to be driven to the Howard Hughes Promenade (the Promenade) 

in Los Angeles. He picked them up and began the drive to the Promenade. At 

approximately 4:30 p.m., just before arriving at the Promenade, Ainslie texted Phillips 

stating that she was sending him her husband’s phone number, and that her husband 

would meet Phillips to take her bags and other personal items from the vehicle.

Phillips asked Ainslie, “will that happen within the next 30 minutes?” He 

later stated this was because he had another pickup that day at 6:30 p.m. and needed to let 

dispatch know his availability, but he does not claim he explained this to Ainslie. Ainslie

did not answer the question. She instructed her children to collect their belongings; 

hearing this, Phillips took her bags from the vehicle. Phillips claimed he believed the job 

was finished without incident, and according to him, Ainslie complimented him.

2

Phillips’ opening brief includes no statement of facts. By his own admission, in order to 

avoid the word count limit on opening briefs, Phillips submitted 13 pages of appendices 

with a “chronology of events” and a “procedural history.” These appendices are 

improper, and accordingly, we disregard them.
4

Shortly thereafter, Strack’s dispatch ordered him to return to the Promenade 

to wait for Ainslie. At an administrative hearing regarding Phillips’ unemployment 

claim, Phillips’ superior, Kempe, testified that after Phillips left the Promenade, Matthew 

Strack “got a phone call directly from the client, saying ‘what is going on?’ And I 

happened to be in the office myself at the time . . . and we immediately called Mr. 

Phillips asked him to return [and] to remain on post.” Thereafter, Strack received another 

call from Steven that he neither wanted Phillips or another driver to return to the 

Promenade.

According to Phillips, Steven had allegedly called Matthew Strack, the 

CEO of Strack, and complained to him that Phillips had “abandoned” them. Ainslie had 

allegedly made this statement to her husband. Phillips draws the “abandoned” language 

from a counseling record. Kempe, the supervisor, wrote the document, which stated: 

“Dale abandoned a client with baggage midway on an ‘as directed’ trip without being 

released by the client. He also did not notify dispatch of the anticipated length of the [as 

directed] trip.” Similar language was used in an employee separation notice. Despite 

Phillips’ allegation to the contrary, there is no evidence Ainslie or Matthew ever used this 

exact or even similar language, or if there is, Phillips does not provide it.

Upon returning to the Promenade, Phillips contacted Ainslie and stated he 

was waiting for her, but she declined any further service from him: “Thank you but we 

are in the movie now with our bags and I’ll just bring them to my husband when he 

comes here later tonight. Sorry for the confusion.” Strack subsequently discharged 

Phillips.

In September 2018, Phillips filed the instant complaint in this action. The 

Sugrarmans demurred, which was partially sustained by the trial court. Phillips then filed 

the instant complaint, naming the Sugarmans in causes of action for negligence, negligent 

infliction of emotional distress, intentional infliction of emotional distress, and 

defamation. The Sugarmans demurred to all causes of action. In March 2019, the court 
5

sustained the demurrers to the three negligence-related claims without leave to amend, 

and overruled the demurrer as to the defamation cause of action.

Discovery proceeded, including motions to compel. Phillips did not take or 

seek to take the depositions of either of the Sugarmans or of Strack personnel, including

Matthew Strack or Kempe.

In May 2019, the Sugarmans filed a motion for summary judgment on the 

remaining cause of action for defamation. Their argument was fairly simple: they had 

not said anything to anyone regarding Phillips’ job performance; the defamation claim 

was based on nonactionable opinion; it was barred by the defense of truth; and Phillips’

termination was not based on anything the Sugarmans allegedly said. 

The facts supporting the motion were set forth in a brief separate statement 

of 10 paragraphs. The Sugarmans’ supporting evidence included declarations by Ainslie, 

Steven, Matthew Strack, and Kempe. The Sugarmans’ declarations stated they had never 

made any statement regarding Phillips’ job performance to anyone associated with 

Strack, and in particular, both said they had not used the word “abandoned.” Ainslie 

confirmed that Phillips dropped her off with her luggage before her husband arrived.

Matthew Strack and Kempe confirmed the previous complaints against Phillips. Kempe, 

who was the individual who prepared the counseling record and separation notice that 

included the “abandoned” language, stated he had never spoken to either Ainslie or 

Steven at any time.

Phillips opposed the motion. His separate statement disputed Ainslie’s 

statement that she had never made any statements about his job performance. He relied 

on two documents, both created by Strack: the job counseling record that stated he 

“abandoned” a client on a trip, and the Strack separation notice. He did not include any 

additional evidence regarding the Sugarmans’ alleged use of the term “abandoned.” 

Phillips did not include any additional material facts, nor did he offer a declaration of his 

own.
6

Phillips relied only on the two documents mentioned above and the audio 

recording from an administrative hearing in connection with his unemployment claim. 

He asserted Kempe’s testimony at the administrative hearing contradicted his declaration, 

and accused him of lying and attempting to defraud the court, mischaracterizing both the 

evidence and the Sugarmans’ arguments. For example, he claimed the Sugarmans 

argued: “No phone/text conversations occurred between Sugarman Defendants, Matthew 

Strack, Wayne Kempe or any other personnel employed by Strack after Plaintiff dropped 

off Defendant Ainslie M. Sugarman December 8, 2017.” That, however, is not what the 

evidence averred. It stated that Ainslie did not communicate with anyone at Strack, and 

Kempe never communicated directly with the Sugarmans. Neither Matthew Strack nor 

Steven stated they did not communicate with each other. Matthew Strack stated he had 

not communicated with Steven “regarding” Phillips, and Steven said he had not 

communicated with anyone “regarding” Phillips’ “job performance” or “used the word 

‘abandoned.’”3

Phillips also failed to address several legal arguments set forth by the 

Sugarmans, including whether any statements, assuming they had taken place, were 

nonactionable opinion, whether the statements were true, and whether Phillips’

termination had resulted from any such statements.

Phillips had also filed a motion to compel, including a request for the 

Sugarmans’ phone records, for December 8. It was set for hearing on the same date as 

the summary judgment motion.

3

The only real inconsistency between the declarations submitted in opposition to 

summary judgment and Kempe’s testimony at the administrative hearing relates to 

whether Ainslie herself called Strack’s offices. Kempe testified it was his 

“understanding” that she had called, but he had not spoken to her himself, and later stated 

“[I]t may have been Mr. Sugarman himself directly or it may have been the wife.” He 

had no firsthand knowledge of Ainslie’s state of mind. This is, at best, a minor 

inconsistency that does not relate to the substance of any statements that may have been 

made. As Kempe testified, he was uncertain as to who had called Strack’s offices.
7

After a hearing (the transcript of which is not included in the record on 

appeal), the trial court issued an order stating that the Sugarmans “have brought forth 

prima facie evidence that they are entitled to a judgment as a matter of law on plaintiff’s 

defamation cause of action of the first amended complaint. The burden thus shifted to 

plaintiff to raise a triable issue of material fact. Plaintiff has failed in raising such an 

issue of triable fact as to the said cause of action. Summary judgment granted 

accordingly.” The motion to compel was denied as moot. Judgment was subsequently 

entered.

This appeal followed.

II

DISCUSSION

We begin by noting that Phillips, who filed this appeal as a self-represented 

litigant, raises a number of issues with regard to Strack that are simply irrelevant here. 

This appeal is only with respect to the Sugarmans, and we address only the issues 

pertinent to the causes of action Phillips filed against them.

A. Demurrers to Negligence and Emotional Distress Claims

The court sustained demurrers without further leave to amend as to 

Phillips’ claims against the Sugarmans for negligence, negligent infliction of emotional 

distress, and intentional infliction of emotional distress. “In reviewing the sufficiency of 

a complaint against a general demurrer, we are guided by long-settled rules. We treat the 

demurrer as admitting all material facts properly pleaded, but not contentions, deductions, 

or conclusions of fact or law. We also consider matters which may be judicially noticed. 

Further, we give the complaint a reasonable interpretation, reading it as a whole and its 

parts in their context, and ignoring erroneous or confusing labels if the complaint pleads 

facts which would entitle the plaintiff to relief.” (McBride v. Boughton (2004) 123 
8

Cal.App.4th 379, 384-385.) “If a complaint does not state a cause of action, but there is a 

reasonable possibility that the defect can be cured by amendment, leave to amend must 

be granted.” (Quelimane Co. v. Steward Title Guaranty Co. (1998) 19 Cal.4th 26, 39.) 

We give no effect, however, to contentions, deductions, or conclusions of either fact or 

law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)

1. Negligence

“The elements of any negligence cause of action are duty, breach of duty, 

proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 

Cal.App.5th 680, 687.) The existence of a duty can be determined by the court as a 

matter of law. (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719-720.)

Phillips claims that the Sugarmans are liable to him for negligence because 

they allegedly made an untruthful statement about him, and because they are “attorneys 

who did know, or should have known, the effects of such a statement.” He offers no 

analysis of the legal basis for the duty he claims the Sugarmans owed to him, simply 

stating every person has a general duty to prevent harm upon others. This does not 

constitute an adequate legal analysis of this issue, and that alone is sufficient to conclude 

Phillips has not met his burden to demonstrate error. (Intengan v. BAC Home Loans 

Servicing LP (2013) 214 Cal.App.4th 1047, 1052.)

Moreover, Phillips has failed to allege a cognizable duty as a matter of law. 

Duty is not an immutable fact of nature “‘but only an expression of the sum total of those 

considerations of policy which lead the law to say that the particular plaintiff is entitled to 

protection.’” (Dillon v. Legg (1968) 68 Cal.2d 728, 734.) Other than his claim regarding 

foreseeability, he states only: “PLAINTIFF claims that he was harmed by DEFENDANT 

S. SUGARMAN’S negligence. PLAINTIFF will prove during trial, the following: [¶] 

a. That DEFENDANTS S. SUGARMAN and A. SUGARMAN were negligent; [¶] b. 
9

That PLAINTIFF was harmed; and [¶] c. That DEFENDANTS S. SUGARMAN and A. 

SUGARMAN’s negligence was a substantial factor in causing PLAINTIFF’s harm.”

This is insufficient as a matter of law. A complaint must plead ultimate 

facts, not legal conclusions. That defendants were negligent is a legal conclusion, and 

claiming that every person has a general duty to prevent all harm to others is not a 

sufficient basis for pleading the existence of a duty. We find no basis in law for 

concluding that a customer has a general duty to an employee to prevent harm to their 

employment status.

Additionally, Phillips does not adequately plead the Sugarmans behaved 

negligently, which his own complaint defines as the “want of ordinary care.” Indeed, he 

claims they intentionally made an untruthful statement about him throughout his 

complaint. It was not a slip of the tongue, according to him, nor did they misspeak. He

asserts they deliberately and intentionally told Strack that Phillips “abandoned” them. In 

addition to the lack of a duty, he has failed to plead negligent behavior. In sum, Phillips 

has not demonstrated the court erred by sustaining the demurrer or failing to grant further 

leave to amend.

2. Negligent infliction of emotional distress

With certain exceptions that do not apply here, the tort of negligent 

infliction of emotional distress in California law is simply a species of negligence. The 

same elements of duty, breach, causation, and damages apply, and the existence of duty is 

a matter of law. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 

129.) Such a duty is either assumed by the defendant, arises out of a preexisting 

relationship with the plaintiff, or is imposed as a matter of law. (Id. at pp. 129-130.)

“[U]nless the defendant has assumed a duty to plaintiff in which the 

emotional condition of the plaintiff is an object, recovery is available only if the 

emotional distress arises out of the defendant’s breach of some other legal duty and the 
10

emotional distress is proximately caused by that breach of duty. Even then, with rare 

exceptions, a breach of the duty must threaten physical injury, not simply damage to 

property or financial interests.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 

965, 985.) As discussed above, as a matter of law, Phillips failed to plead facts that 

would support recovery under a negligence theory. We find no error with respect to this 

cause of action.

3. Intentional infliction of emotional distress

A claim for intentional infliction of emotional distress must plead the 

following elements: “‘“‘“(1) extreme and outrageous conduct by the defendant with the 

intention of causing, or reckless disregard of the probability of causing, emotional 

distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual 

and proximate causation of the emotional distress by the defendant’s outrageous 

conduct.”””’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘“‘extreme 

as to exceed all bounds of that usually tolerated in a civilized community.’”’” (Hughes v. 

Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Phillips offers boilerplate language about the tort of intentional infliction of 

emotional distress, but does not perform any analysis as to why it applies to these facts. 

Even if we assumed the Sugarmans did complain about his service, and did so without 

basis, that would still not be the type of “extreme and outrageous” behavior necessary to 

plead intentional infliction of emotional distress. Both Phillips allegations and his 

statements on appeal are entirely conclusory, and he fails to demonstrate the trial court 

erred.
11

4. Lack of prejudicial error

Even if Phillips had managed to plead one or more causes of action, or even 

if he could have presented a reasonable argument to the trial court that he should have 

another chance to amend his complaint, any error was not prejudicial. All of his causes 

of action were based on the same underlying conduct: that the Sugarmans allegedly lied 

to Strack and told Strack he “abandoned” them. As we discuss post, any such cause of 

action would have been subject to summary judgment for the same reason his defamation

claim failed: he simply presented no evidence this statement was ever made, and his 

claims would have been subject to the common interest privilege. Accordingly, 

sustaining the demurrers to these claims did not result in prejudicial error. (See, e.g., 

Cohen v. Kabbalah Centre Internat., Inc. (2019) 35 Cal.App.5th 13, 23.)

B. Summary Judgment on Defamation Claim

1. The separate statement’s missing page

Before we reach the substance of the motion, we first address Phillips’

claim that he did not have 75 days to respond to the Sugarmans’ motion for summary 

judgment because the Sugarmans’ separate statement was missing a page when filed. But 

this is not a matter of timeliness; he does not dispute that he had the required number of 

days to respond, nor does he cite any authority that a single missing page equates to a 

motion not being filed at all. He does not dispute that he received all of the Sugarmans’

other documents, including the points and authorities, supporting declarations, and 

evidence. The only questions are whether he adequately requested a remedy for the error 

from the trial court, and whether he was prejudiced.

The following are the facts that were included in the missing page:

“4. Steven A. Sugarman (“Steven Sugarman”) never made any statement 

(oral or written) regarding Plaintiff’s job performance to anyone associated with Strack. 
12

(Strack Decl. at par. 4; Kempe Decl. at par. 4; and Declaration of Steven Sugarman at 

par. 1.)

“5. Steven Sugarman has never met or talked to Plaintiff. (Declaration of 

Steven Sugarman at par. 3.)

“6. Ainslie Sugarman never used the word “abandoned” with regards to her 

December 8, 2017 trip with Plaintiff. (Declaration of Ainslie Sugarman at par. 3.)

“7. Steven Sugarman never used the word “abandoned” with regards to 

Ainslie Sugarman’s December 8, 2017 trip with Plaintiff. (Declaration of Steven 

Sugarman at par. 2.)

“8. Strack had several problems with Plaintiff’s job performance during his 

employment with Strack. (Strack Decl. at par. 5; and Kempe Decl. at par. 5.)

“9. Around June 2017, a customer complained to Strack about Plaintiff’s 

failure to pick her up outside of a doctor’s office. (Strack Decl. at par. 6; and Kempe

Decl. at par. 6.)”

As for the timeline, the Sugarmans’ motion was filed on May 16, 2019, 

with the hearing noticed for August 2. The separate statement, as we noted, was filed

missing a page. On June 26, over a month later, Phillips raised this for the first time in an 

e-mail to the Sugarmans’ counsel, but did not specify the exact problem. The e-mail, 

from an individual who stated he was “managing Mr. Phillips court documents” stated: 

“Unfortunately, one of the documents critical to motion, ‘the Separate Statement’ arrived 

with very clear errors of omissions.” Counsel for the Sugarmans did not understand the 

problem, apparently thinking Phillips or his document manager believed the second 

column of the separate statement should have included some content. “What is 

incomplete? The second column is supposed to be blank.” No response is included in 

the record.

Weeks later, on July 16, the same date he filed his opposition, Phillips filed 

a “Request for Judicial Notice” that the separate statement was incomplete. Phillips’
13

responsive separate statement omitted the facts from the missing page. Finally,

understanding the nature of the problem, the next day the Sugarmans’ counsel filed a 

notice of errata and a declaration explaining the error, and filed and served the complete

separate statement. The notice stated that if the court believed Phillips should be 

afforded more time, the court should set an August 8 deadline for him to file a new 

opposition to the separate statement, and any other documents he wished to file, and to 

continue the hearing on the motion for three weeks.

There is no indication that Phillips ever requested additional time, or asked 

for anything more than what he requested in his opposition, the court’s “vigilance on this 

matter.” Indeed, he instead claimed the missing page was an intentional tactic by the 

Sugarmans to hurt his case “and to blind the court to the deception.” (Capitalization & 

boldfacing omitted.) Nor did he ever seek to amend his own responsive separate 

statement.

By failing to request any additional time from the trial court, or to raise this 

issue with the court at any time before his opposition was due, Phillips cannot now 

complain of it, much less claim it constitutes prejudicial error requiring reversal. Further, 

even if it was somehow error for the court not to grant Phillips more time that he never 

requested, it was not prejudicial.

Even if the Sugarmans had never amended their separate statement, the 

court still had discretion to consider the facts raised in the missing page. (San Diego 

Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315.) The overall 

purpose of the separate statement is to give the opposing party adequate notice of the 

“facts it must rebut in order to prevail.” (Id. at p. 316.) This is obviously particularly 

important in a complex case involving multiple causes of action; this court has seen many 

separate statements running to dozens or even hundreds of pages. But that is not the 

situation here. This case involved a single cause of action, defamation, and the motion 

for summary judgment relied mostly on four brief declarations, all of which Phillips 
14

received. Those declarations are the only evidence the Sugarmans relied on to support 

the facts stated on the missing page. Phillips spent much of his opposition to the motion 

for summary judgment contesting the facts in these declarations and explaining why, in 

his view, they were insufficient to support summary judgment. He clearly knew what 

facts he needed to rebut to defeat the motion, and therefore, the missing page did not 

result in any prejudice to Phillips. Accordingly, this does not warrant reversal, and we 

move on to whether the motion was properly granted on substantive grounds.

2. Statutory framework and standard of review

Summary judgment is appropriate “if all the papers submitted show that 

there is no triable issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)4 To prevail on the 

motion, a defendant must demonstrate the plaintiff’s cause of action has no merit. This 

requirement can be satisfied by showing either one or more elements of the cause of 

action cannot be established or that a complete defense exists. (§ 437c, subds. (o), (p); 

Bardin v. Lockheed Aeronautical Systems Co. (1999) 70 Cal.App.4th 494, 499-500.)

“[T]he party moving for summary judgment bears an initial burden of 

production to make a prima facie showing of the nonexistence of any triable issue of 

material fact; if he carries his burden of production, he causes a shift, and the opposing 

party is then subjected to a burden of production of his own to make a prima facie 

showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 850-851.) “A prima facie showing is one that is sufficient to 

support the position of the party in question.” (Ibid.) “There is a triable issue of material 

fact if, and only if, the evidence would allow a reasonable trier of fact to find the 

4

Subsequent statutory references are to the Code of Civil Procedure unless otherwise 

indicated.
15

underlying fact in favor of the party opposing the motion in accordance with the 

applicable standard of proof.” (Id. at p. 850, fn. omitted.)

In performing our de novo review, we use the same procedure as the trial 

court. We first consider the pleadings to determine the elements of each cause of action. 

Then we review the motion to determine if it establishes facts, supported by admissible 

evidence, to justify judgment in favor of the moving party. Assuming this burden is met, 

we then look to the opposition and “decide whether the opposing party has demonstrated 

the existence of a triable, material fact issue.” (Chavez v. Carpenter (2001) 91 

Cal.App.4th 1433, 1438.) We liberally construe the evidence in support of the party 

opposing summary judgment and resolve doubts concerning the evidence in favor of that 

party. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

3. Moving party’s burden

As noted above, the party moving for summary judgment has the “initial 

burden of production to make a prima facie showing of the nonexistence of any triable 

issue of material fact.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-

851.) In order to make this determination, we review the law and evidence relevant to the 

pleaded cause of action.

The only cause of action here is defamation. “The tort of defamation 

‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that 

(e) has a natural tendency to injure or that causes special damage.’” (Taus v. Loftus

(2007) 40 Cal.4th 683, 720.)

The most pertinent element here is the first, that either defendant published 

any arguably defamatory statement about Phillips. The statement Phillips claimed was 

defamatory is that he “abandoned” Ainslie and her children with their luggage. The 

Sugarmans claim they made no such statement, and in support of summary judgment, 

they submitted their declarations, Matthew Strack’s declaration, and Kempe’s 
16

declaration. Each of these declarations state that the Sugarmans never said Phillips 

“abandoned” Ainslie, nor did the Sugarmans discuss Phillips’ job performance with 

anyone at Strack. This is sufficient evidence to meet their burden on summary judgment.

4. Responding party’s burden

The burden then shifted to Phillips to demonstrate a triable issue of material 

fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851.) Substantively, 

Phillips relied primarily on the four declarations submitted in support of the motion for 

summary judgment, several statements that Kempe made at the administrative hearing 

regarding his unemployment claim, and a number of Strack documents. He did not add

any new disputed facts to his separate statement, nor did he submit a declaration on his 

own behalf.

To defeat summary judgment, Phillips was required to demonstrate a triable 

issue of material fact on the elements of defamation. Before we reach the more 

complicated concepts, he must first demonstrate that a defamatory, or arguably 

defamatory, statement was made by the defendants. He failed to do so. The only 

evidence submitted on this point is that Ainslie never spoke to anyone at Strack and that 

Steven did not speak to anyone at Strack regarding Phillips’ performance. This is not 

enough to support Phillips’ contention that any defamatory statement was made, much 

less the nature of that statement.

Phillips suggested to the court below that the use of the word “abandoned,”

written on the counseling and separation forms by Kempe, is sufficient to create a trial of 

fact. “It is reasonable for Plaintiff to assume that Strack attempted to enter into the 

record accurate account of what occurred. Plaintiff contends that Strack would have 

asked Sugarman Defendants what Plaintiff was being accused of doing. The record 

shows that Plaintiff allegedly ‘abandoned’ Defendant Ainslie M. Sugarman and her 

children on a chauffeured trip.” But this requires too many inferences: the inference that 
17

anyone at Strack spoke to either of Sugarmans after the incident about what happened, a 

fact which Phillips never alleged, much less supported with evidence; the inference that 

either of them used the word “abandoned;” the inference that Kempe, who wrote both 

documents and did not speak to either of the Sugarmans, quoted their language without 

saying so, rather than characterizing the incident in his own words. There is simply no 

evidence to support such an inference.

Kempe’s testimony from the administrative hearing stated the call they 

received only said “what happened,” and then the Sugarmans declined the further 

services of a Strack driver that night. We decline to read into this, or any of the other 

evidence Phillips put forth, that either of the Sugarmans used the word “abandoned.”

Phillips’ entire defamation claim rests on this use of this word, and without 

any evidence at all that either defendant ever said it, he has not demonstrated the 

existence of a triable issue of fact sufficient to defeat summary judgment. The court 

correctly granted judgment in the Sugarmans’ favor. Accordingly, we need not consider 

the Sugarmans’ remaining arguments as to why summary judgment was proper.5

5. The common interest privilege

Even were we to find that either of the Sugarmans used the word 

“abandoned” to describe the December 2017 incident, or that there was a material fact as 

to whether they ever discussed Phillips’ job performance with Matthew Strack or any of 

his employees, we would nonetheless find summary judgment appropriate because the 

5

Because Phillips failed to demonstrate a defamatory statement was ever published, his 

argument that the court erred by turning his defamation per se claim into one for 

defamation per quod is moot. Either claim requires a false statement of fact. Further, his 

failure to submit a reporter’s transcript, which is apparently the only place this issue was 

discussed, renders it unreviewable in any event.
18

common interest privilege would render any such statement nonactionable as a matter of 

law.6

The common interest privilege, as set forth in Civil Code section 47, 

subdivision (c), states that a privileged communication is one made “without malice, to a 

person interested therein, (1) by one who is also interested, or (2) by one who stands in 

such a relation to the person interested as to afford a reasonable ground for supposing the 

motive for the communication to be innocent, or (3) who is requested by the person

interested to give the information.”

Phillips claims that the common interest privilege does not ever apply 

between customers and businesses. He offers no authority for this assertion. The 

qualified privilege is recognized where the common interest is “something other than 

mere general or idle curiosity, such as where the parties to the communication share a 

contractual, business or similar relationship.” (Hawran v. Hixson, supra, 209 

Cal.App.4th at p. 287.) This may include communications about the conduct of an 

employee. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 949.) It is 

undisputed that any communication that did take place about Phillips would have 

concerned his conduct as an employee.

The policy behind applying such a privilege under these circumstances is 

obvious. Customers and businesses should be able to freely communicate about those 

affairs, including the performance and conduct of the business’s employees, without the 

fear of defamation liability for nonmalicious conduct.

Phillips asserts that even if the privilege might apply, he sufficiently alleged 

malice in his complaint. He did not. Malice has a specific legal meaning in connection 

with defamation, and his assertion in the introduction of his complaint that the 

Sugarmans’ complaint was “malicious” or “malicious and outrageous” is insufficient. 

6

This is an issue of law as applied to undiusputed facts. Therefore, “we may address it 

for the first time on appeal.” (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 286-287.)
19

Phillips did not allege the existence of malice in his cause of action for defamation. He 

alleged only that the Sugarmans “failed to use reasonable care to determine the truth or 

falsity of the statement(s).”

Malice, in the defamation context, is “a reckless or wanton

disregard for the truth.” (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 740.) It 

cannot be presumed from the fact of the communication itself; a claim of malice must be 

supported by evidence. (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 354.) 

Phillips has no such evidence, nor does his allegation suffice. Thus, the common interest 

privilege would preclude liability even if Phillips had some scintilla of evidence that 

either defendant had made an arguably defamatory statement to Strack about him.

C. Discovery of Phone Records

Phillips also claims the court erred by failing to hear and decide on his 

motion to compel production of the Sugarmans’ phone records for the date in question 

before the hearing on the motion for summary judgment. The record does not reflect this, 

however, nor does he argue, that he ever raised this with the trial court via an ex parte 

motion or other request to advance the date of the hearing or to delay the motion for 

summary judgment until the issue was resolved. It is, therefore, waived for failure to 

raise it below. (Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131-

1132.)

Even if we were to consider this argument, we conclude that if the motion 

had been granted, it would not have resulted in a different outcome in the summary 

judgment motion. Even if Phillips obtained the Sugarmans’ phone records and even if 

those records showed a call between Steven and Matthew Strack or another Strack 

employee, it would not prove the contents of the conversation (nor would it prove, 

despite Phillips’ claims to the contrary, that anyone was a liar). For all we know, any 

conversation could have reflected a misunderstanding (as Ainslie’s later text to Phillips 
20

suggests), but that nonetheless, Steven had decided to pick up his wife and children 

himself. Given the phone records could not provide the content of any communications –

which is obviously key to a defamation claim – we find no error here. Moreover, the 

common interest privilege would nonetheless defeat Phillips’ claim in any event.

III

DISPOSITION

The judgment is affirmed. The Sugarmans are entitled to their costs on 

appeal.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.