Filed 2/25/16 Tolsa v. Pacific Aqua Farms CA2/8
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                DIVISION EIGHT


MIGUEL TOLOSA,                                                         B255255

         Plaintiff and Appellant,                                      (Los Angeles County
                                                                       Super. Ct. No. BC481759)
         v.

PACIFIC AQUA FARMS et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Deirdre Hill, Judge. Affirmed.




         Alireza Alivandivafa for Plaintiff and Appellant.




         LA SuperLawyers and William W. Bloch for Defendants and Respondents.




                                                         ******
       Plaintiff Miguel Tolosa appeals the judgment following the trial court’s grant of
summary judgment to defendants Pacific Aqua Farms (PAF) and David Palmer on
plaintiff’s claims for defamation, intentional interference with prospective economic
advantage, and unfair competition (Bus. & Prof. Code, § 17200, et seq.). We affirm.
                FACTUAL AND PROCEDURAL BACKGROUND
       For 21 months, plaintiff worked as a sales representative for PAF, a Los
Angeles-based importer and wholesale distributor of coral, fish, and invertebrates from
the South Pacific, including Bali and the Solomon Islands. In his position, he
contacted existing clients about their reordering needs, attempted to sell them
additional products, obtained referrals, and prospected for new clients for PAF’s
aquarium products. Each month, PAF ranked its three full-time sales staff and three
other employees who performed sales based on the total dollars of sales invoiced.
According to PAF’s sales records, when measured by the average amount of
commission earned per hour worked, plaintiff was ranked in the bottom two sales
people for 20 of the 21 months of his employment. For one month, he rose up to the
bottom three, which Palmer believed was due to one of PAF’s other sales people being
on vacation for part of that month.
       Plaintiff left PAF in April 2011 for a position with Oculus Aquatics. On his last
day, he sent a mass e-mail to a list of undisclosed recipients announcing his departure
and making negative comments about PAF and its sales people. Among his
comments, he solicited orders for his new employer, claiming that “it’s been about 6
months since we’ve gotten a decent shipment here [at PAF] and over a year since we
had relatively consistent quality, and honestly I’m tired of telling everyone they have
to wait months for good corals.” He referred customers looking for fish to another
individual at PAF, whom he described as a “reincarnated used car salesman,” but if
“you are direct with him to not push the salesman thing then you’ll have a great
experience. He’s the only other trustworthy person here as far as fish go and will look
out for your best interests. The quality of [this person’s] fish picks will be the same as
mine, corals not so much though.” As for corals, plaintiff directed the recipients not to

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order from PAF: “I barely make enough to pay my rent because I’d rather tell you
guys there was nothing good here than to send you garbage; no one else here shares
that mentality. If you order corals from here they will be crap and you will lose money
on them, guaranteed. You’ll have reps (including [the one mentioned above]) telling
you otherwise, please take my word on it, I can’t tell you how many customers we lose
on a monthly basis due to poor quality.” He went on to disparage PAF’s sales staff,
claiming they did not have customers’ best interests in mind and would “lie[,] cheat
and steal to get an order from you.”
       Believing this e-mail posed a threat to PAF’s business, Palmer sent an e-mail on
the same day to PAF customers whom he believed likely received plaintiff’s e-mail.
In the course of responding to plaintiff’s statements, Palmer claimed “Miguel was
never able to lift himself out of the bottom two ranking as a salesman.” He also wrote,
“All of us here at [PAF] feel a bit hurt by the negative comments that Miguel had to
say but we truly do hope that he can overcome his personal problems and return to a
positive mindset.”
       After Palmer sent this e-mail, plaintiff’s job offer with Oculus was revoked,
which plaintiff claims was the result of the statements Palmer made in the e-mail.
Plaintiff also claims he has been unable to find other work in the same industry as a
result of Palmer’s e-mail.
       Plaintiff filed a complaint against defendants alleging claims for defamation,
tortious interference with prospective economic advantage, and unfair competition
pursuant to Business and Professions Code section 17200, the latter two of which were
derivative of the defamation claim.1 Defendants moved for summary judgment, or
alternatively, summary adjudication, identifying 15 different discrete issues. Plaintiff
opposed on the merits and requested a continuance to conduct additional discovery
pursuant to Code of Civil Procedure section 437c, subdivision (h). In reply,
defendants raised evidentiary objections and addressed the issue of “substantial truth”

1      The complaint itself was not included in the record on appeal.

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arguably for the first time, so the trial court continued the summary judgment hearing
and granted plaintiff leave to file a sur-reply, which plaintiff did.
       The court sustained some of defendants’ objections and granted summary
adjudication on seven issues, including that Palmer’s statement that plaintiff was
“never able to lift himself out of the bottom two ranking as a salesman” was
substantially true and Palmer’s statement about plaintiff’s “personal problems” was
nonactionable opinion. The court’s rulings completely disposed of plaintiff’s
defamation, intentional interference, unfair competition, and punitive damages claims
against both defendants. As a result, the court granted summary judgment.2 It denied
plaintiff’s request for a continuance to conduct further discovery pursuant to Code of
Civil Procedure section 437c, subdivision (h). Plaintiff timely appealed.
                                      DISCUSSION
1. Legal Standards
       We review the grant of summary judgment de novo, considering all the
evidence set forth in the moving and opposition papers except evidence for which
objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.) Under Code of Civil Procedure section 437c, subdivision (c), a motion for
summary judgment must be granted 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.” Thus, we must decide whether the defendant has conclusively
negated a necessary element of the plaintiff’s claim or has established an affirmative
defense and has demonstrated no material issue of fact requires a determination at trial.
(Code Civ. Proc., § 437c, subd. (o); Guz, supra, at p. 334.)




2      The court denied summary adjudication on the remaining discrete issues, either
finding disputed issues of fact or finding them mooted by the other rulings. There is
no dispute, however, that the court’s rulings fully disposed of plaintiff’s case.

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2. Analysis
       Our task in this appeal is narrow because plaintiff has limited his arguments
regarding his defamation claim to only one statement: Palmer’s claim in his email that
plaintiff “was never able to lift himself out of the bottom two ranking as a salesman.”
(See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [“Although our review of a
summary judgment is de novo, it is limited to issues which have been adequately
raised and supported in plaintiffs’ brief. [Citations.] Issues not raised in an appellant’s
brief are deemed waived or abandoned.”].)3 Plaintiff also concedes his intentional
interference, unfair competition, and punitive damages claims are wholly derivative of
his defamation claim, so we need not analyze them separately. Plaintiff raises
additional procedural arguments we address below. For their part, defendants raise
other issues, but we need not address them because the issue of substantial truth is
dispositive.
A. Substantial Truth
       “‘Defamation is effected by either of the following: [¶] (a) Libel. [¶] (b)
Slander.’ (Civ. Code, § 44.) To constitute libel or slander, the published statement
must be false. (Civ. Code, §§ 45, 46.) To establish the defense of truth—i.e., that the
statement is not false—defendants do not have to prove the ‘literal truth’ of the
statement at issue. [Citation.] ‘[S]o long as the imputation is substantially true as to
justify the “gist” or “sting” of the remark’ the truth defense is established.” (Hughes v.
Hughes (2004) 122 Cal.App.4th 931, 936, fn. omitted.) “‘. . . California law permits
the defense of substantial truth and would absolve a defendant even if [he or] she
cannot “justify every word of the alleged defamatory matter; it is sufficient if the



3       In passing in his opening brief, plaintiff also suggests that Palmer’s statement in
his e-mail that plaintiff “did not understand” a “basic part of this business” is a
statement of fact to be tried before a jury. Plaintiff did not raise this argument in the
trial court, so we will not address it. (San Diego Watercrafts, Inc. v. Wells Fargo Bank
(2002) 102 Cal.App.4th 308, 316 (San Diego Watercrafts) [“Appellate courts need not
address theories that were not advanced in the trial court.”].)

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substance of the charge be proved true, irrespective of slight inaccuracy in the details.”
[Citations.] . . . Minor inaccuracies do not amount to falsity so long as “the substance,
the gist, the sting, of the libelous charge be justified.” [Citations.] Put another way,
the statement is not considered false unless it “would have a different effect on the
mind of the reader from that which the pleaded truth would have produced.”’” (Ibid.,
quoting Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 516-517; see
Heuer v. Kee (1936) 15 Cal.App.2d 710, 714 (Heuer).)
       The trial court found the statement that plaintiff “was never able to lift himself
out of the bottom two ranking as a salesman” was substantially true because “[t]he
Sales Records indicate that this is a true statement for 20 of those 21 months [plaintiff
was employed with PAF], but that for the 21st month (January 2010) Plaintiff rose to
the 3rd ranking. Thus, the substance or gist of Defendant Palmer’s statement was
accurate. More to the point, it is clear that the ‘sting’ of Defendant Palmer’s comment
would remain unchanged if Defendant Palmer had been more accurate and written, for
example, ‘[Plaintiff] was almost never able to lift himself out of the bottom two
ranking as a salesman’ or ‘out of his 21 months with PAF, [Plaintiff] was able to lift
himself out of the bottom two ranking as a salesman exactly once.’”
       We fully agree with this analysis. The “gist” or “sting” of Palmer’s statement
was that plaintiff performed poorly as a sales person, which was not changed by the
fact that plaintiff was able to lift himself into the bottom three sales people for one
month. In fact, this case presents an even more compelling circumstance for granting
summary judgment on substantial truth than other cases finding allegedly defamatory
statements substantially true. For example, in Campanelli v. Regents of University of
California (1996) 44 Cal.App.4th 572 (Campanelli), the plaintiff was fired as the head
basketball coach at the University of California, Berkeley after the school’s athletic
director overheard him severely criticizing players in the locker room. (Id. at p. 576.)
Later, in an interview with the New York Times, the athletic director said of the
plaintiff’s actions, “‘“The players were beaten down and in trouble psychologically.”’”
(Ibid., italics omitted.) The plaintiff asserted a defamation claim based on that

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statement, and the court affirmed the sustaining of the defendant’s demurrer,
concluding the statement was substantially true based on the plaintiff’s own factual
submissions that he “engaged in temper tantrums directed at his players which
included verbally abusive and profane remarks of a personal nature, to the extent that
seven members of the team wanted to transfer unless he was fired. Through these
concessions, [the plaintiff] has admitted the essential accuracy of [the athletic
director’s] statement that the players were ‘in trouble psychologically.’” (Id. at
p. 582.)
       Similarly, in Swaffield v. Universal Ecsco Corp. (1969) 271 Cal.App.2d 147
(Swaffield), a defendant wrote a “rambling informal 17-page” letter asserting a wide
range of “fact, assumption, opinion, conclusion and commentary” about the plaintiff’s
fraudulent and other activities related to the company for which he was president. (Id.
at pp. 160-161.) After the defendant sent the letter, the plaintiff was convicted of
securities fraud. (Id. at p. 156.) The court affirmed summary judgment on the
plaintiff’s defamation claim because the plaintiff’s conviction showed the substance of
the defendant’s assertions of “fraud and falsification of records” in the letter were true.
(Id. at p. 164.)
       If the statements in Campanelli and Swaffield were substantially true, then there
can be no dispute Palmer’s statement here was substantially true. The minor
inaccuracy that plaintiff performed better in one month as compared to the other sales
people in no way removed the “gist” or “sting” of the clear implication of Palmer’s
comment that plaintiff did not perform well as a sales person. It is no different than
finding substantially true the statement in Campanelli that the players were “‘“in
trouble psychologically”’” (Campanelli, supra, 44 Cal.App.4th at p. 576) because the
plaintiff admitted he verbally abused them, or finding substantially true the many
statements in the rambling 17-page letter in Swaffield because the plaintiff was later
convicted of securities fraud.
       To avoid this conclusion, plaintiff repeatedly emphasizes that Palmer admitted
in his deposition that his statement was false. That is an accurate—if hyperbolic—

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representation of Palmer’s deposition testimony, given he repeatedly stated his belief
that plaintiff was ranked in the bottom three during one month because one of the sales
people had been on vacation for part of that month. But Palmer’s admission makes no
difference in applying the substantial truth doctrine in this case. The whole point of
allowing substantial truth to defeat a defamation claim is to permit slight inaccuracies
in a statement, so long as the “gist or sting” of the statement remains true. Indeed,
defendants’ substantial truth argument would be less persuasive if Palmer had denied
his statement was in any way untrue in the face of PAF’s own sales records showing
for one month plaintiff was ranked in the bottom three instead of the bottom two sales
people.
       Plaintiff also suggests at various points in his briefs that another sales person
named Jim Kono should have been included in PAF’s sales rankings. But plaintiff has
offered no evidence that including Kono would have changed plaintiff’s sales ranking
or that PAF deliberately excluded Kono from its ranking system in order to justify
Palmer’s statement. To the contrary, Palmer testified at his deposition that Kono was
not a regular employee of PAF; instead, he was “an old friend from the fish business,
and I gave Jim a desk at [PAF] so that he could spend his days there. Jim lived with
his mother who was pressuring him to get out and get a job.” He was not on PAF’s
payroll and Palmer paid him a cash commission for any sales.
       Plaintiff presents a host of other arguments, none of which is persuasive. He
claims the “vast majority” of substantial truth cases involve public figures, citing only
Campanelli, but cases make no such distinction and have applied the substantial truth
doctrine without regard to public figure status. (See, e.g., Swaffield, supra, 271
Cal.App.2d at p. 160 [corporate executive]; Heuer, supra, 15 Cal.App.2d at p. 711
[school teacher].) Second, he claims the substantial truth cases focus on whether the
“substance” of the statement is true, and here the substance of Palmer’s statement was
false. (See Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th
1165, 1180-1181 [“Significantly, however, the defendant need not justify the literal
truth of every word of the allegedly defamatory matter. It is sufficient if the substance

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of the charge is proven true, irrespective of slight inaccuracy in the details, ‘so long as
the imputation is substantially true so as to justify the “gist or sting” of the remark.’”].)
He is wrong: the “substance” of Palmer’s statement was that plaintiff performed
poorly as a sales person. That was true irrespective of the slight inaccuracy that, for
one month, he lifted himself out of the bottom two ranking into the bottom three.
Finally, plaintiff cites Gantry Constr. Co. v. American Pipe & Constr. Co. (1975) 49
Cal.App.3d 186 to argue the jury must decide whether the “gist or sting” of the
statement is true. But Gantry involved the propriety of jury instructions on defamation
and truth, not summary judgment, and other courts have affirmed summary judgment
on the issue of substantial truth. (See, e.g., Swaffield, supra, at p. 164.) Thus, the trial
court properly granted summary adjudication on the issue of substantial truth,
disposing of plaintiff’s defamation, intentional interference, unfair competition, and
punitive damages claims.
B. New Argument in Reply Brief
       Plaintiff contends the trial court improperly considered the issue of substantial
truth because defendants raised it for the first time in their reply brief in support of
their summary judgment motion. Although he is correct defendants focused on
substantial truth in their reply brief, they cited the relevant law in their motion
(including Campanelli) and claimed in their motion and in their separate statement that
Palmer’s statement about plaintiff’s sales ranking was true. But even if the issue of
substantial truth was newly raised in defendants’ reply brief, the trial court did not
abuse its discretion in considering it. In summary judgment proceedings, the court has
discretion to “consider all admissible evidence of which the opposing party has had
notice and the opportunity to respond,” including evidence submitted with a reply
brief. (Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098-1099; see
San Diego Watercrafts, supra, 102 Cal.App.4th at p. 316.) Here, the trial court
continued the summary judgment hearing to give plaintiff the opportunity to file a sur-
reply to address the issue of substantial truth, which plaintiff did. Plaintiff was also
given the opportunity to orally argue the issue twice. Because plaintiff was given a

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full and fair opportunity to rebut defendants’ substantial truth argument, the court did
not abuse its discretion in considering it.
C. Continuance
       In his opposition brief in the trial court, plaintiff requested a continuance
pursuant to Code of Civil Procedure section 437c, subdivision (h), but he provided no
affidavits to support the request and identified no facts he would likely discover. At
the hearing on the summary judgment motion, plaintiff suggested he would find and
depose Kono in order to challenge PAF’s sales ranking system. Defendants pointed
out the issue of the ranking system was always at issue in the case and plaintiff did not
previously locate and depose Kono, has not identified what favorable testimony Kono
would give, and any testimony from him on the ranking system would be inadmissible.
The trial court denied plaintiff’s request because he “submitted no affidavits in support
of his request for a continuance and makes no showing as to what essential facts that
might be obtained if a continuance is granted, let alone give any reason to believe any
such facts may exist or why additional time is necessary to obtain them.”
       Code of Civil Procedure section 437c, subdivision (h) provides, “If it appears
from the affidavits submitted in opposition to a motion for summary judgment or
summary adjudication or both that facts essential to justify opposition may exist but
cannot, for reasons stated, then be presented, the court shall deny the motion, or order
a continuance to permit affidavits to be obtained or discovery to be had, or make any
other order as may be just. The application to continue the motion to obtain necessary
discovery may also be made by ex parte motion at any time on or before the date the
opposition response to the motion is due.” In order to obtain a continuance, the
requesting party must show “‘(1) the facts to be obtained are essential to opposing the
motion; (2) there is reason to believe such facts may exist; and (3) the reasons why
additional time is needed to obtain these facts. [Citations.]’ [Citation.] The decision
whether to grant such a continuance is within the discretion of the trial court.” (Frazee
v. Seely (2002) 95 Cal.App.4th 627, 633.)



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      In both the trial court and again on appeal, plaintiff has failed to meet any of
these requirements. As we already explained, plaintiff has offered no evidence to
suggest testimony from Kono about his sales with PAF would defeat summary
judgment. Even if Kono could provide favorable testimony, plaintiff has not given
any reasons to believe he would do so at a deposition. And plaintiff has yet to explain
why he did not seek out Kono’s testimony long before the summary judgment
proceedings. We find no abuse of discretion.
                                   DISPOSITION
      The judgment is affirmed. Respondents shall recover costs on appeal.




                                                        FLIER, J.


WE CONCUR:




      RUBIN, ACTING P. J.




      GRIMES, J.




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