                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 27 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MICHAEL A. KAUFMAN, M.D.,                        No. 12-55507

              Plaintiff - Appellant,             D.C. No. 8:11-cv-00382-AG-MLG

  v.
                                                 MEMORANDUM*
UNITEDHEALTH GROUP
INCORPORATED, a corporation; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                     Argued and Submitted November 6, 2013
                              Pasadena, California

Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.

       Plaintiff-Appellant Dr. Michael Kaufman appeals from the district court’s

order granting summary judgment in favor of Defendants-Appellees United

Healthcare Services, Inc., UnitedHealth Group Incorporated, and Optumhealth

Care Solutions, Inc. We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Kaufman’s appeal focuses on his defamation claim. Under California law,

“[t]he 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, 151 P.3d 1185, 1209 (Cal. 2007) (internal

quotation marks and citation omitted). The district court concluded that the

defendants’ allegedly defamatory statements were privileged. We agree.

      Under California’s statutory common interest privilege, “[a] privileged

publication or broadcast is one made . . . [i]n a communication, without malice, to

a person interested therein [ ] by one who is also interested . . . .” Cal. Civ. Code

§ 47(c). The California Supreme Court has set out a two-part framework for

applying the common interest privilege: “If section 47[c] applies to the occasion on

which a communication is made and if it was made without malice, it is privileged

and cannot constitute a defamation under California law.” Brown v. Kelly Broad.

Co., 771 P.2d 406, 411–12 (Cal. 1989) (in bank) (emphasis in original).

      First, the common interest privilege applies to the communications in this

case. The California appellate courts have consistently held that communications

within a company about the reasons for an employee’s termination are shielded by

the privilege. See, e.g., King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426,

440 (2007) (“[B]ecause an employer and its employees have a common interest in


                                           2
protecting the workplace from abuse, an employer’s statements to employees

regarding the reasons for termination of another employee generally are

privileged.”); Cuenca v. Safeway San Francisco Emps. Fed. Credit Union, 180

Cal. App. 3d 985, 995 (1986) (“Communications made in a commercial setting

relating to the conduct of an employee have been held to fall squarely within the

qualified privilege for communications to interested persons.”). Kaufman’s

argument that Optumhealth and UnitedHealth Group are separate employers—even

though they are part of the same corporate group—does not affect our conclusion.

Communications by a former employer to a prospective employer about an

employee’s job performance also fit within the scope of the common interest

privilege. See Cal. Civ. Code § 47(c); see also Noel v. River Hills Wilsons, Inc.,

113 Cal. App. 4th 1363, 1369–70 (2003).

      Second, the defendants acted without malice.1 “The malice necessary to

defeat a qualified privilege is actual malice which is established by a showing that



      1
        Under California law, the plaintiff bears the burden of showing that the
defendants acted with malice. See Lundquist v. Reusser, 875 P.2d 1279, 1284 (Cal.
1994) (in bank); Kashian v. Harriman, 98 Cal. App. 4th 892, 915 (2002) (“The
defendant has the initial burden of showing the allegedly defamatory statement was
made on a privileged occasion, whereupon the burden shifts to the plaintiff to show
the defendant made the statement with malice.”). We assume without deciding that
Kaufman need only show malice by a preponderance of the evidence rather than
clear and convincing evidence.

                                          3
the publication was motivated by hatred or ill will towards the plaintiff or by a

showing that the defendant lacked reasonable grounds for belief in the truth of the

publication and therefore acted in reckless disregard of the plaintiff’s rights.”

Sanborn v. Chronicle Publ’g Co., 556 P.2d 764, 768 (Cal. 1976) (quotation marks

and citation omitted) (emphasis in original). The district court correctly concluded

that there is no genuine dispute as to any material fact concerning whether the

defendants or their agents “lacked reasonable grounds for belief in the truth” of

their statements about why the company terminated Kaufman. Id. Kaufman has

demonstrated that reasonable jurors could disagree about whether he failed to meet

the performance standards required of his position. But these factual disputes are

immaterial in determining whether the defendants acted with actual malice. See

Noel, 113 Cal. App. 4th at 1370 (“[M]alice focuses upon the defendant’s state of

mind, not his [or her] conduct.” (quotation marks and citation omitted) (alterations

in original)). Kaufman has not asserted any facts that could lead to an inference

that Kaufman’s supervisor, the human resources department, or anyone else acting

on behalf of the defendants actually “lacked reasonable grounds” for their

professed belief that he was underperforming. The California appellate courts have

affirmed orders granting summary judgment in favor of defendants under similar

circumstances. See, e.g., id. at 1371; Kashian, 98 Cal. App. 4th at 932–33.


                                           4
      The district court also correctly granted summary judgment in favor of the

defendants on Kaufman’s related claims for invasion of privacy and expectation of

confidentiality. “When, as here, an invasion of privacy claim rests on the same

allegations as a claim for defamation, the former cannot be maintained as a

separate claim if the latter fails as a matter of law.” Alszeh v. Home Box Office, 67

Cal. App. 4th 1456, 1464 (1998); see also Noel, 113 Cal. App. 4th at 1372–73.

      The judgment of the district court is AFFIRMED.




                                          5
