Filed 9/22/15 Rojas v. United Parcel Service CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RAYMOND JOHN JOSEPH ROJAS,

Plaintiff and Appellant,

v.

UNITED PARCEL SERVICE et al.,

Defendants and Respondents.

 D068070

 (Super. Ct. No. CIVRS1203243)

APPEAL from a judgment of the Superior Court of San Bernardino County, 

Joseph R. Brisco, Judge. Affirmed.

Lavi & Ebrahimian, N. Nick Ebrahimian, Joseph Lavi and Jordan D. Bello for 

Plaintiff and Appellant.

Paul Hastings, George W. Abele and Ji Hae Kim for Defendants and Respondents 

United Parcel Service, Inc. and Nicholas Barron.

Raymond Rojas appeals a grant of summary judgment in his defamation action

against defendants United Parcel Service (UPS) and Nicholas Barron based on a finding 
2

that the statements on which he based his claim were either absolutely or conditionally 

privileged. Rojas contends there are triable issues of fact as to the truthfulness of the 

statements and whether defendants made them with malice sufficient to overcome 

summary judgment. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

UPS employed Rojas from September 26, 2005, through April 26, 2011. A 

collective bargaining agreement (CBA) between UPS and Rojas's union governed Rojas's 

employment. The CBA specified the procedures for discipline and discharge, and 

identified certain transgressions, including "willful, wanton or malicious damage to the 

Employer's property," that would result in immediate termination.

On April 26, 2011, Barron, a security specialist for UPS, discovered that a UPS

covert video camera had been disabled and damaged. That day, Barron and his 

supervisor Chris Brunton undertook an investigation to determine the cause of the 

damage. Security footage taken on April 8, 2011, showed Rojas and two other UPS 

employees, Omar Villela and Eric Ramos, on the video feed. While Villela and Ramos 

looked toward the camera, Rojas moved outside its viewing field. Shortly afterwards, the 

footage turned black. Barron informed Brunton and the manager, Brian Lorton, of what 

he had found. In keeping with company policy, Barron and Brunton also informed Labor 

Manager Kimberly Ades and Hub Division Manager Troy Emerson because of their

managerial responsibilities at UPS. 
3

As part of their investigation, Barron and Brunton interviewed Rojas and told him 

that the security video showed him pulling the wire harness and damaging the camera. 

After denying responsibility, Rojas admitted to Barron and Brunton that he had poked 

and touched the security camera and had been "snooping around," but claimed he never 

damaged it. Nevertheless, Rojas offered to pay UPS for the damage. 

Barron and Brunton also interviewed Villela and Ramos. Villela said Rojas did 

not intend to damage the camera and Ramos indicated that Rojas did not pull the wires or 

damage the camera. Later, Barron found evidence that Villela had also pulled on the 

wiring harness, but did not change his opinion that Rojas was solely responsible for the 

destruction of the camera. 

After completing the investigation, Barron offered Rojas the opportunity to resign 

to avoid being terminated and reported to the police for vandalism. Rojas refused to 

resign. Thereafter, Barron, Brunton and Lorton recommended to Ades that the company

terminate Rojas. Believing that Rojas had committed "willful, wanton, or malicious 

damage" to company property in violation of the CBA, Emerson and Ades decided to 

terminate him.

After the termination, Rojas filed a grievance with his union. In response, Barron 

provided his investigative report to members of UPS's management. UPS and the union 

held a hearing regarding Rojas's termination. During the hearing, Rojas admitted he 

touched, poked and yanked the camera, had "no business" being there, and was "snooping 

around," [but continued to assert that he did not damage anything].
4

Later, at a second level grievance hearing Rojas requested, Barron testified to a 

panel of UPS employees and union members that Rojas intentionally and maliciously 

damaged the camera. Based on the evidence presented, the panel upheld UPS's decision 

to terminate Rojas.

In the meantime, pursuant to UPS policy and in the normal course of his duties, 

Barron reported to the City of Ontario Police Department that Rojas had vandalized UPS 

property. The police report stated that Rojas "was caught on video pulling wire harness 

from back of camera"; it was unclear from the report whether this was a quote from 

Barron or a police summary of what he told them. 

Rojas ultimately filed this case against UPS and Barron, asserting claims for wage 

and hour violations, wrongful termination, retaliation and defamation.1 Rojas's 

defamation claim rested on a single assertion that Barron falsely reported Rojas "willfully 

and maliciously destroyed UPS's property."

UPS moved for summary judgment, arguing that its statements about Rojas were 

privileged communications or true statements of fact or opinion and were thus not 

actionable. In his opposition, Rojas disputed the propriety of summary judgment, but 

failed to respond to UPS's separate statement of undisputed material facts.

 

1 The only claim at issue on this appeal is the one for defamation and thus this 

opinion does not include any discussion as to Rojas's remaining claims. 
5

The court granted the motion for summary judgment, finding that UPS's allegedly 

defamatory statements were absolutely privileged communications, or true statements or 

statements of opinion, made in good faith to others with a shared interest or duty that 

were subject to a qualified privilege. 

DISCUSSION

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).)2 A defendant who moves for 

summary judgment or summary adjudication bears the initial burden to show that the 

cause of action has no merit--that is "that one or more elements of the cause of action, 

even if not separately pleaded, cannot be established, or that there is a complete defense 

to that cause of action." (§ 437c, subds. (a) & (p)(2).)

If the defendant carries that burden, "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.) A triable issue of material fact exists " 'if, and only if, the evidence would allow a 

reasonable trier of fact to find the underlying fact in favor of the party opposing the 

motion in accordance with the applicable standard of proof.' [Citation.] Thus, a party 

'cannot avoid summary judgment by asserting facts based on mere speculation and 

 

2 All statutory references are to the Code of Civil Procedure except where otherwise 

noted.
6

conjecture, but instead must produce admissible evidence raising a triable issue of fact.' "

(Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 

1144-1145.)

"On appeal after a motion for summary judgment has been granted, we review the 

record de novo, considering all the evidence set forth in the moving and opposition 

papers except that to which objections have been made and sustained." Guz. v. Bechtel 

National, Inc. (2000) 24 Cal.4th 317, 334. "In performing our de novo review, we must 

view the evidence in a light favorable to plaintiff as the losing party [citation], liberally 

construing [the plaintiff's] evidentiary submission while strictly scrutinizing defendants'

own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor."

(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

Separate Statement

We note that Rojas failed to respond to UPS's separate statement of undisputed 

facts and did not dispute the accuracy of the facts detailed in it. UPS asks us to affirm the 

judgment based solely on Rojas's failure to file a responsive separate statement. 

(See Batarse v. Service Employees International Union, Local 1000 (2012) 

209 Cal.App.4th 820, 828 [recognizing that a trial court faced with the absence of a 

separate statement from a party opposing summary judgment may grant summary 

judgment on that basis].) However, despite Rojas's procedural noncompliance, the trial 

court considered the merits of his arguments and determined that there was no triable 
7

issue of material fact. Under the circumstances, we exercise our discretion to consider 

the merits of the case.3 (See Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112.)

Analysis

A. Defamation

"The tort of defamation 'involves (a) a publication that is (b) false, (c) defamatory, 

and (d) unprivileged, and (e) has a natural tendency to injure or that causes special 

damage.' " (Taus v. Loftus (2007) 40 Cal.4th 683, 720 (Taus).) Rojas contends that 

Barron's statements to the Ontario Police, the administrative grievance panel, and UPS 

employees were defamatory, while UPS argues that those statements were privileged and 

thus not actionable.

1. The Absolute Privilege

Civil Code section 47, subdivision (b), provides an absolute privilege for 

communications made " . . . in any . . . official proceeding authorized by law." This 

privilege is intended to allow the " ' "utmost freedom of communication between citizens 

and public authorities whose responsibility it is to investigate and remedy 

wrongdoing" ' "and cannot be defeated by a showing of falsity or malice. (Hagberg v. 

California Federal Bank (2004) 32 Cal.4th 350, 364 (Hagberg).) Civil Code section 47, 

subdivision (b), also creates an absolute privilege for statements made "in the initiation or 

course of any other proceeding" that is authorized by law and reviewable by petition for 

 

3 In doing so, we nonetheless recognize that the detailed facts set forth in UPS's 

separate statement are undisputed. 
8

writ of mandate. (Hagberg, supra, at p. 360.) This privilege applies to statements made 

in employment grievance proceedings that are subject to mandamus review. (Wallin v. 

Vienna Sausage Manufacturing Co. (1984) 156 Cal.App.3d 1051, 1053 (Wallin) [noting 

that grievance proceedings resulting in an employee's loss of employment are subject to 

review by mandate].)

Rojas contends Barron falsely told police that he had video footage of Rojas 

pulling the camera's wire harness and intentionally damaging the camera.4 However, an 

absolute privilege applies to an employer's statements to the police concerning an 

employee's perceived misconduct. (Williams v. Taylor 129 Cal.App.3d, 745, 753-754.) 

After viewing the video and interviewing Rojas and the other two witnesses, Barron 

concluded Rojas intentionally damaged UPS's property and had a reasonable basis to 

report Rojas to the police. Even if the report to the police was false, the absolute 

privilege applies. (Hagberg, supra, 32 Cal.4th at pp. 364, 376)

Rojas also contends Barron's statements before the grievance panel were 

defamatory. However, Rojas had requested the grievance proceeding to determine the 

propriety of his termination and Barron was called to testify about his investigation of the 

incident on which the termination was based. Regardless of the truthfulness of Barron's 

 

4 Although this is one interpretation of the evidence, another reasonable 

interpretation is that Barron did not make this statement to the Ontario Police, but that the 

officer who wrote the report misinterpreted Barron's statement. Regardless, whatever 

Barron reported to the police was absolutely privileged. In addition, based on the totality 

of the evidence, including Rojas's admissions, Barron reasonably concluded that Rojas 

damaged the security camera. 
9

statements made at the grievance proceedings, they are absolutely privileged under Civil 

Code section 47. (See Wallin, supra, 156 Cal.App.3d at p. 1056 [statements made during 

a grievance hearing under a collective bargaining agreement are absolutely privileged].) 

Thus, even if made with malice, Barron's statements to the grievance panel and to 

the police are privileged and thus cannot support Rojas's defamation claim. 

2. The Common Interest Privilege

Civil Code section 47, subdivision (c), provides a privilege for "a communication, 

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." This provision "extends a conditional 

privilege against defamation to statements made without malice on subjects of mutual

interest[]. [Citations.] This privilege is 'recognized where the communicator and the 

recipient have a common interest and the communication is of a kind reasonably 

calculated to protect or further that interest.' [Citation.] The 'interest' must be something 

other than mere general or idle curiosity, such as where the parties to the communication 

share a contractual, business, or similar relationship or the defendant is protecting his 

own pecuniary interest. [Citation.] Rather, it is restricted to 'proprietary or narrow 

private interests.' " (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 287.)

The common interest privilege "has been determined to apply to statements by 

management and coworkers to other coworkers explaining why an employer disciplined
10

an employee." (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th

1510, 1538 (McGrory) [recognizing that Civ. Code, § 47, subd. (c) is consistently applied 

in the employment context]; Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 369

[applying the conditional privilege to a manager's complaint to department of human 

resources about workplace harassment]; Cuenca v. Safeway San Francisco Employees 

Federal Credit Union (1986) 180 Cal.App.3d 985, 990 (Cuenca).) " 'Clearly, an 

employer is privileged in pursuing its own economic interests and that of its employees to 

ascertain whether an employee has breached his responsibilities of employment and if so, 

to communicate, in good faith, that fact to others within its employ so that (1) appropriate 

action may be taken against the employee; (2) the danger of such breaches occurring in 

the future may be minimized; and (3) present employees may not develop misconceptions 

that affect their employment with respect to certain conduct that was undertaken in the 

past.' " (McGrory, at p. 1538.)

The qualified privilege will not apply, however, where the plaintiff establishes the 

communication at issue was made with actual malice, i.e., where the speaker had " ' "a 

state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or 

injure another person." ' " (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 914; 

see Taus, supra, 40 Cal.4th at p. 721; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 

711, 723, fn. 7.) Malice may also be established by a showing that the speaker lacked 

reasonable grounds to believe in the truth of his statements and thus acted in reckless 

disregard of the plaintiff's rights. (Taus, at p. 721.) 
11

Whether the privilege arises is ordinarily a question of law. (Mann v. Quality Old 

Time Service, Inc. (2004) 120 Cal.App.4th 90, 108.) A defendant has the initial burden 

of showing that allegedly defamatory statements were made on a privileged occasion, 

which if shown shifts the burden to the plaintiff to establish the defendant made the 

statements with malice. (Taus, supra, 40 Cal.4th at p.721.)

Here, Rojas implicitly concedes that, but for malice, the allegedly defamatory 

statements were conditionally privileged5 and focuses solely on whether the statements 

were made with malice. He recognizes that malice is established by a showing that the 

maker of a defamatory statement had no reasonable grounds to support a good faith belief

in the truthfulness of the statement but erroneously contends that a conflict in the 

evidence as to the defendant's belief of the truthfulness of the published statements is 

sufficient to avoid summary judgment. 

In support of this flawed argument, Rojas cites the evidence that he did not 

damage the security camera, including his statements and those of Villela and Ramos. 

However, this evidence does not negate the existence of a good faith belief by Barron that 

Rojas damaged the camera.6 Rojas's nearness to the camera at the time it stopped 

 

5 On appeal Rojas does not contend that defamatory statements were made other 

than to police, at grievance hearings, and to UPS employees. 

6 Were Rojas's argument correct, any dispute of investigative findings of employee 

misconduct in a case like this would automatically establish malice and negate the 

common interest privilege. 
12

functioning, his admission that at that time he was "snooping around" and tugging on the 

camera's wires and his offer to pay for the damage are sufficient to support a good faith 

belief that Rojas was responsible, thus eliminating his claim of malice. (Cuenca, supra,

180 Cal.App.3d at p. 999 [holding that even in the face of conflicting evidence, the 

existence of a reasonable belief defeats the contention of malice on a motion for summary 

judgment]; McGrory, supra, 212 Cal.App.4th at p. 1541 [concluding that if no evidence 

gives rise to a reasonable inference that declarant did not believe his statement or that his 

belief was unreasonable, the statement is conditionally privileged].)

Even if the evidence did not establish that Barron had a good faith belief in the 

truth of his statements, malice is not shown by the fact that he could have done a better 

job investigating the accusations against Rojas. (Bierbower v. FHP, Inc. (1999) 

70 Cal.App.4th 1, 9 ["maliciousness cannot be derived from negligence. Malice entails 

more than sloppiness . . . ."]; Reader's Digest Ass'n v. Superior Court (1984) 37 Cal.3d 

244, 258 ["The failure to conduct a thorough and objective investigation, standing alone, 

does not prove actual malice, nor even necessarily raise a triable issue of fact on that 

controversy."].) Further, as part of his responsibilities at UPS, Barron was required to 

report to company management all accusations of serious employee misconduct before

completion of the entire investigation.

Rojas also asserts Barron lied to him and treated him as if he had done something 

wrong. He contends that Barron's knowledge of his involvement in an earlier stolen 

phone incident colored Barron's view of him and established a triable issue of fact as to 
13

whether Barron acted with malice. However, this is mere speculation and does not 

suffice to avoid summary judgment. (See Burton v. Security Pacific Nat. Bank (1988) 

197 Cal.App.3d 972, 978.) 

Rojas also claims Barron's threats to report him to the police if he did not resign 

and subsequent report to management establish Barron's ill will toward him.7 However, 

Rojas does not provide evidence showing Barron violated any company policy by 

reporting his misconduct to UPS's management or to the police. In fact Rojas admitted in 

his points and authorities in opposition to summary judgment that Barron acted in 

conformity with UPS policy, which required the district manager and the security 

department to report such matters to the police in an effort to gain restitution. In any 

event, any resentment Barron had towards Rojas would not constitute malice because 

Barron's statements had a common interest in furthering UPS's company policy. 

 

7 Rojas cites Larrick v. Gilloon (1959) 176 Cal.App.2d 408 (Larrick), disapproved

of on another ground in Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 

114, fn. 4, for the proposition that anything ever said or done against him is evidence of 

malice. However Larrick is factually distinguishable. There, the plaintiffs established 

malice by a plethora of evidence, including the defendant's publication of written articles 

threatening them with grand jury action for conspiracies, collusion, fraud and dishonesty 

while in public office, as well as a long record of "controversy and many disagreements" 

between the adverse parties. In one newspaper article, defendant accused the officials of 

exhibiting "stupidity, incompetence, favoritism of the grossest sort, vindictiveness, bad 

faith, collusion, falsification of minutes and lack of integrity." (Id. at p. 363.) This 

strong evidence of malice based on many accusatory and vitriolic statements stemming 

from a long standing grudge sharply contrasts with Rojas's speculation that because 

Barron recognized him from a prior investigation, Barron was biased against him, even 

though Barron never articulated such thoughts. Also in this case there was no evidence 

of a history of animosity between the men.
14

(See Rest.2d, Torts, § 603, com. a, p. 292 ["[I]f 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 as the supposed misconduct of the person defamed does not 

constitute an abuse of the privilege."].)

Because Rojas has conceded that the common interest privilege applies but for

malice and the evidence was not sufficient to establish malice, the trial court correctly 

granted summary judgment in defendants' favor.

DISPOSITION

The judgment is affirmed. Defendants are to recover their costs of appeal.

Prager, J.*

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

 

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.