DeNardo v. Bax

correspondent aquifer rights share of the min to because there were no reserves above, In underlying erals or subsurface water. Alaska oil and Allen's land. As discussed law, gas rights properly correlative are defined as the commission considered Allen's 81.05.110(b). petition so, doing under AS afforded, far opportunity so as it is performed commission rather than so, to the owner of practicable to do each statutory duty breached its to "make and pool produce in a to without property "prevent enforce orders" in order ... just equitable and waste the owner's share waste, greater recovery insure a ultimate both, gas, pool; being of the oil or gas, protect oil and rights the correlative amount, practically an so far as can be persons owning interests the tracts of determined, practicably and so far as can land ..." affected. waste, substantially without be obtained quantity proportion that of recov Finally, Allen hints that the commission gas, proper oil or or both under the erable interest, potential noting conflicts of ty gas to the total recoverable oil or bears Department the commission and the of Natu- pool, purposes or both in the and for such ral represented by Resources are both just equitable to use the owner's share Department may of Law. While it be true energy.... ofthe reservoir receptive commission has not been gives authority Alaska position, law the commission especially proceed- Allen's in the protect rights by requiring I, these corrélative ings leading up to Allen Allen has plan development "a operation for a shown a conflict that should exelude the com- pool." field or hearing mission from the case. The commission found that Allen's leases v. CONCLUSION any portion Tertiary

"do not contain of the System Pool," only produc Gas which is the The correctly court denied Allen's NCIU, ing pool in the and that the leases motion for a trial de novo. The commission any portion "have not been shown to contain applied proper statutory standard Al- reservoir," Tyonek Deep only of the oth petition. len's The commission did not gas er known oil or reservoir the NCIU. breach duties owed to Allen. We there- unambiguously The commission thus found fore judgment AFFIRM the being that Allen's leases are not drained. court. & rights Since correlative attach to "the owner property pool," each in a Allen must pool have an interest before he can rights.

assert correlative As there is no leases,

drainage from there Allen's is no need rights to consider whether correlative attach DeNARDO, Appellant/Cross- Daniel royalty overriding Allen's interest. Appellee, argues Allen also the commission breached its duties under AS 31.05.110 to Joy BAX, Appellee/Cross-Appellant. protect rights overriding royal an Allen's ty owner. Aside from the issue of correlative S-11487, Nos. S-11508. above, rights, argues discussed Allen that the Supreme Court of Alaska. commission failing breached its duties order 88.05.180(p). unitization under AS The Oct. responds commission it breached no Rehearing Denied Nov. duties, holdings and made no about the ex royalty tent of overriding rights; owners' it

merely full declined to consider the extent of 31.05.170(2). 31.05.170(2).

45. AS 47. AS 31.05.030(d)(9). 31.05.110(a). 46. AS 48. AS DeNardo, se, pro Anchorage,

Daniel Ap- pellant and Cross-Appellee. Rohlf, Rudd, P.C.,

Joan E. Guess & An- chorage, Appellee Cross-Appellant. BRYNER, Justice, Before: Chief MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

OPINION FABE, Justice.

I. INTRODUCTION Daniel against DeNardo filed this lawsuit his former Joy alleging coworker Bax defa- mation. DeNardo based his claim on com- ments made Bax to coworkers that was "worried that 'stalking' [DeNardo] was granted summary [her]." The court judgment grounds to Bax on the that her privileged statements were as statements of personal concern in the work- place and that provide DeNardo had failed to loitering around Nardo was privilege. De- Bax abused evidence Holly has ex- last fall. Parsons com- residence conceding that Bax's appeals, Nardo my Based on concerns. pressed similar arguing that there privileged but ments knowledge of Mr. DeNar- surrounding the observations issues factual were sufficient ANI, together at worked do while we should have that the issue of abuse incidents, very I am con- on these based jury than decided to a rather been submitted my personal safety in Mr. superi- cerned about summary judgment. Because on presence. that DeNardo correctly determined court sufficient evidence produce failed Proceedings disregard B. knowledge or reckless acted (thereby falsity her statements as to affidavit, DeNardo filed response to this privilege) we affirm. abusing the alleging that court a new lawsuit to cowork- maliciously made statements AND PROCEEDINGS II. FACTS Harris, ers, Holly Parsons and Annie stalking claimed Bax. DeNardo DeNardo was A. Facts "maliciously statements were that Bax's Joy former- and Bax were DeNardo Daniel "false, li- made," defamatory, spurious, and Newspapers, Inc. at Alaska ly coworkers by belous," others as and "were understood (ANI). from was terminated DeNardo When charging and DeNardo referring to DeNardo court ANI, a in federal filed lawsuit he conduct of corrupt and dishonorable with the parent com- employer, its his former against in the is criminal conduct which former and several Corporation, pany Calista complaint,DeNardo Alaska." In the State video- coworkers, including During Bax. a following Bax. stalking or denied by in that case attended deposition taped discovery, DeNardo During the course of Rohlf, Bax, asked Joan was DeNardo requests interrogatories and several filed defendants, currently if he was attorney for protective Bax moved for a production. DeNardo re- any weapons. possession limit asking superior the court order fused to answer. and access to certain witnesses DeNardo's to answer refusal on DeNardo's Based discovery to the defama- irrelevant preclude weapon at possession he was whether superior granted this The court tion suit. protective Rohlf moved for deposition, motion, depose to Bax's allowing DeNardo order, conduct the requesting permission to only if employers and ex-husband former deposition at remainder of proper notice to Bax's provided DeNardo courthouse, would where DeNardo federal only if Bax's deponent and counsel and each security screening. At- undergo a have depositions. present counsel was from were affidavits to the motion tached required all tele- court's order superior The present the codefendants and three of Rohlf DeNardo and between phone conversations including Bax. deposition, at the ex-husband, coworkers, supervisors Bax's the motion support Bax's affidavit in which as conference calls conducted to be stated: superi- participate. The could Bax's counsel deposi- seope of these court limited deposition on Mr. DeNardo's I attended "DeNardo phone calls as follows: extremely and concerned tions I was March (1) Bax ever informed may whether: answer ask refused to Mr. DeNardo when been she had ever witnesses whether weapon to the brought whether he followed, by Mr. or harassed ... together at stalked we worked deposition. When (2) DeNardo; stalking or harass- such what ANI, when were several occasions there (8) of; reportedly consisted I ment in his vehicle. followed me Mr. DeNardo superior The Bax's stated belief" basis for "stalking" I me. that he was worried was wheth- DeNardo to ask Holly permitted also court about this expressed concern have that DeNar- witnesses Bax had informed in this ac- er other defendants Parsons and The order at residences." had "loitered tion, Annie Harris do as to Ms. Rohlf. as well not allowed that DeNardo was specified De- to me that Mr. expressed concern has about Bax's life or ask witnesses abuse of which DeNardo had failed to estab- relationships permitted social was Although superior lish. court held that the witnesses about information Bax was not entitled to to the defamation claim. The irrelevant questions on the whether her statements required that Bax was not court noted negligently were false or made or whether provide DeNardo with her current address se, per statements were defamation long represented by as she counsel. was "nothing court found that has been DeNardo was not also allowed to contact ... support finding submitted that Mr. twelve-year-old daughter. DeNardo making DeNardo has shown that Ms. Bax in moved for a reconsideration of the court's making these statements was them with order, protective but motion was de- knowledge or disregard reckless as to their nied. apparent falsity." summary judgment, argu- Bax moved for appeal, On argues DeNardo that even if ing that her statements were not false be- privileged, Bax's comments were there are they cause based on her own observa- disputed facts as to whether subjective tions and concern Therefore, was argues, abused. he his following possibly stalking her. She claims should jury have been submitted to a also asserted that the statements her affi- disposed than summary judg rather of on davit filed the federal court case were challenges ment. He further absolutely privileged and that the conversa- protective court's order as violation of the tions she had with coworkers that were ref- product work privilege right and his to disc conditionally erenced her affidavit were overy.1 privileged because coworkers share a com- workplace safety. mon interest III DISCUSSION motion, opposed denying DeNardo Bax's that claiming he ever stalked Bax and A. Standard of Review allegation Bax's that DeNardo stalked her superior The court has broad discre per argued was defamation se. He further tion to scope determine the and extent of "(elven assuming privilege, a conditional discovery protective and to craft orders.2 A jury privilege it is a issue whether the is lost protective court's restricting discovery order upon showing from abuse a of reckless disre- will not be overruled absent abuse of discreti indifference, gard, deliberate or actual mal- on.3 ice." superior granted The summary court grant We review a summary of motion, judgment finding judgment novo, that Bax's state- affirming de if the record ments in the sworn affidavit filed in the contains no issue of material fact and "completely" privi- federal court case were moving party judgment is entitled to as a leged by that the and statements made Bax matter of law.4 considering When a motion coworkers, affidavit, summary memorialized judgment, all reasonable infer protected by were a privilege, conditional proffered ences of fact from the evidence "conditionally appeals superior 1. Bax superior grant summary firm the court's 'stalking' court's determination that the word is judgment ground on the that Bax's comments defamatory per given the se context in so, it which privileged, we need not address Bax's ar- doing misappre- was used." But gument. decision, superior hends court's which reached no conclusion as to whether use of the (Alaska Jennings, 2. Jones v. 788 P.2d 732, 735 phrase "stalking" in this context constituted def- 1990). per superior amation The se. court stated that stalking degree because is a second misdemean- Homer, City or, Fuller v. 113 P.3d purposes ... "for I (Alaska 2005). would find that [defamation would not per sel requested be a basis to accord the defendant superior relief." Because the court de- did not Briggs v. Newton, cide the whether Bax's comments con- 1999). se, per stituted defamation and because we af- worried DeNardo that she was moving party and coworkers against the drawn must be non-movingparty.5 stalking and whether these state in favor The made with malice. ments were a statement Whether discovery confining to whether court's order is afforded a statement and whether 6 informed witnesses that she Bax ever rele of law. If the questions privilege are DeNardo, what stalked or harassed been jury a disputed, are of the case vant facts of, harassment consisted such has privilege if conditional a must determine belief, a for Bax's stated struck the basis considering legal issues When been abused.8 right balance between DeNardo's reasonable previ such as whether impression, first claim, right discovery on his and Bax's applies, we will ously unrecognized "annoyance, embarrass protected from persuasive law that is most adopt the rule of ment, oppression, or undue burden or ex reason, policy.9 light precedent, pense." The court's order Superior Protective Or- B. The Court's permitted to elicit information about was not Inappropriately Re- Not der Did relationships and personal life or social Discovery. strict to Bax's address also was not entitled matter, we address a threshold As seeking a reasonable balance. achieved superior court's de appeal of the order, the trial court protective Bax informed protective granting Bax's motion for cision "gravely concerned about dis- that she was 26(b)(1) Rule Alaska Civil order. Under closing her current address to Mr. DeNardo discovery regarding party "may obtain very for the reason has become matter, which is relevant privileged subject fol- of this lawsuit: Mr. DeNardo pending subject in the matter involved past, in the lowed her on several occasions can, cause, good action." But the court conversations at eavesdropped private on her "justice re any protective order enter work, up unexpect- reportedly has shown person from protect party quires to edly of at least two of near the residences embarrassment, oppression, or annoyance, female co-workers." Given the their former 0 expense."1 Rule Civil undue burden controversy-a the defamation nature 26(c) discovery, deny to allows the court to expression that was on Bax's claim based conditions for designate certain terms and her, which was worried DeNardo of discov discovery, regulate to the method in only brought to DeNardo's attention was discovery.11 ery, scope of and to limit the seeking a support of a motion an affidavit deposition location to conduct secure protective superior order 1. The court's carrying weapon- was fear that DeNardo a reasonable balance between struck the of its court was well within bounds the discovery right and DeNardo's to personal limiting access to this discretion protected right from un- Bax's to be information. only tangentially relevant and discovery. duly intrusive dispute, the of the nature of Because reasonably prohibited DeNardo its discre court also superior court did not abuse The young daughter. discovery contacting Bax's from it limited DeNardo's tion when Moreover, no indication from the there is claim. De- facts relevant to his defamation likely to daughter would be wheth record that claim centered on Nardo's defamation any relevant evidence. provide to her statements er Bax made 1111, Packers, Ltd., Borough, Slope P.2d 9. Taranto v. North Alakayak Columbia 5. v. British (Alaska 2002). (Alaska 1999). P.3d Pay'N Corp., 723 P.2d Save 6. Schneider 26(c). P. 10. Alaska R. Civ. (Alaska 1986). 624-25 Inc., Jadon, 7. French v. 11. 1d. 1996). Id. Id. pro- arguments litigation that the court's Nardo for use in this that could subject presentation potentially product "restricted the

tective order to the work summary judgment," privilege, protective and that nor did facts on order com- members, husband, family pel production "Bax's former for- of or even address such Additionally, presence materials. the mere basically neighbors and employers, mer depositions of Bax's counsel at and wit- unpersuasive are out of bounds" ruled supe- light the reasonableness of the pur- of both ness interviews would not violate the poses product order and the fact that DeNardo privilege. rior court's the work counsel, depose any through presence, no effort witnesses to made would not parame- within the support impres- his claim sensible have access to DeNardo's mental sions, conclusions, superior court. opinions. ters drawn and pro- The tective order therefore did not violate the superior conclude that We therefore product privilege. work not abuse its discretion when it court did designed protective crafted a order to "bal- Summary Judgment Properly C. Was right discovery ance Mr. DeNardo's Granted Because Bax's Statements against right relevant information Ms. Bax's Privileged to Coworkers Were privacy and her fears for the DeNardo Presented No Evidence daughter." of herself and her Privilege Was Abused. protective 2. The court's order In order for a defamation claim attorney did not violate work succeed, plaintiff must establish: product privilege. (1) (2) defamatory statement; a false and argues superi- DeNardo also that the unprivileged an publication par ato third allowing or court's order DeNardo to inter (8) ty; amounting fault negli- at least only depose pres witnesses view and (4) genee; "per existence either ence of Bax's counsel violated the work harm.[15] actionability special se" product privilege. alleges pro He The court determined that DeNardo tective order "affected interview [his] strate element, failed to establish the second an gy, testimony, the witness' and allowed Bax unprivileged communication, granted privy to be to the content of notes and [his] in favor of Bax. The su- arguing, fact collection." so perior court reasoned that the statements product privilege. misconstrues the work Bax made to coworkers that "she felt she attorney product privi being conditionally The work privi- stalked" were lege designed protect leged is the mental im as statements of concern person- conclusions, pressions, safety and opinions workplace. of an al in the attorney preparation in the of materials for challenge DeNardo does not the litigation.13 Langdon use in As set forth in court's determination that Bax's statements Champion, quali in order for materials to Rather, privileged. he raises a claim fy product protection, for work the material jury that he was entitled to a trial on wheth- (1) must involved be: document or other privilege. er Bax abused the conditional But (2) tangible prepared thing, anticipation of directly because we have never addressed (8) trial, litigation prepared by or for or privilege the whether a conditional party's attorney opposing repres for the respect among exists to statements co- entative.14 personal safety workers about in the work- discovery

Bax did not seek of place, recognize docu- we first privilege that such a tangible prepared by applies. ments items De- Dep't Transp., Walden v. (1970); Moors, GroraEEr, 4 J. J. Lucas & G. 2001). Feperar Moore's Practice at 26- ¶¶ 26.64[1]-[4], 26-389). 348 to (Alaska 1988) (citing 14. 752 P.2d Alas Mircer, 26(b)(3); ka R. Civ. P. 8 C. Wricut & A. French, 32; 911 P.2d at see also Restatement (SEconp) (1977). Feperat § Procepure or Torts § & Practice at 196-97 summary judgment stage, it At the recognized a condi "we have past,

In the to establish that she joint aon Bax's initial burden business privilege based tional law, by prevail as a matter was entitled relation employer/employee or an interest ap privilege demonstrating that a conditional pro is made 'for a statement ship when applica did not abuse the plies and that she business, professional, a lawful tection of court, In trial privilege. ble conditional interest' pecuniary property or other relying initial on Bax satisfied this burden Slope Borough, we in Taranto v. North And that affidavit as evidence her federal court public safe on matters of "speech found privilege, arguing not abuse the she did communications ty privileged." While is briefing trial court: her to the safety concerning personal among coworkers motion, presented evidence Ms. Bax squarely fall within workplace do not in the privilege. Ms. that she did not abuse recognized privi of these the ambit of either Bax [Ms. "When we Bax's affidavit states: acknowledgment of the leges, previous our together at worked DeNardo]l and Mr. speech regarding protecting importance Newspapers, there were Inc.] ANI [Alaska and safe public health interests business DeNardo fol- occasions when Mr. several privilege recognition ty support lends I was worried lowed me his vehicle. in this case. Therefore, 'stalking' me."... that he was actually saw Mr. proof that Ms. privi acknowledge a conditional We will did) (or thought is at least inter person "having a common lege when a sworn affi- itself. Ms. Bax's her affidavit subject matter believes particular in a est were not that her statements davit shows shar that another there is information false, knowing they were made is entitled ing the common interest with a reck- were not made her statements According to the Restatement know."18 disregard for the truth. less (Second) Torts, occasion makes "[aln prima facie case that Bax established Once if cir conditionally privileged publication that she privilege applied and a conditional a correct or reasonable cumstances induce shift privilege, the burden not abuse the did (a) af- information that there is belief privilege had that the to DeNardo to show ed sufficiently interest of the important feets a that a have established We been abused.20 (b) recipient's knowledge publisher, and may privilege be abused: conditional defamatory matter will be of service of the (1) publisher is malice-the when there interest.19 protection of the the lawful disregard as knowledge or reckless here, Where, to cowork a worker reveals matter; falsity to the co concerned that another ers that she is (2) pub- defamatory matter is because her, sufficiently might worker be than purpose other lished for some publish to the statement's important interest particular that for which er, safety, Further personal is stake. given; fears, more, to her by alerting coworkers (3) made to publication is because protected her interest reasonably believed person not some possibility to the by attuning coworkers accomplishment of necessary dangerous victim of behavior. she was the privilege; particular purpose of under these cir Recognition privilege of a necessary in order to facilitate cumstances is (4) includes defam publication employees feel safe because which an environment reasonably atory not believed matter performing their duties. while (1977). Schneider, (Seconp) § 594 or Torts (quoting 19. Restatement Briggs, at 1121 16. 984 P.2d omitted)). (internal citations 723 P.2d at 623 ("Ordinarily, Briggs, P.2d at 1121 20. See at 1115. 17. 992 P.2d of a existence establishes the once a defendant showing of plaintiff the burden privilege the has Schneider, (citing Lull v. 723 P.2d at 623-24 18. abused."). that it has been 1980) Co., 614 P.2d 321 Wick Constr. omitted). (internal marks quotation necessary accomplish purpose motion that Bax privileged.[21] the occasion is only Brandy for which spoke manager to "sales John- son, Holly and co-workers Parsons and Annie court, De- Before husband, Harris. Bax never told her chil- that Bax abused the condi Nardo contended dren, family, neighbors, Corporation Calista with mal privilege tional because she acted management, Newspapers Alaska Inc. man- disregard knowledge or reckless as to ice: falsity agement, any governmental authority of her statements. Because the determining a actual malice test for abuse of plaintiffs stalking!" He also noted subjective, privilege conditional at day entering Bax saw [DeNardo] "Lolne summary judgment stage the court must de Meyer the Fred on Dimond after work. She genuine is a of termine "whether there issue reported stalking never her." [DeNardo] defendant] material fact on whether en [the DeNardo does not meet his burden tertained serious doubts as to the truth of pointing to seope publica- the limited of Bax's the statements."2 We note that the false concedes, tion. expressed As DeNardo Bax allegedly and comment that Bax solely her concerns made was that Bax to her coworkers-those was worried DeNar- stalking do was her and not that he was who knew DeNardo and were in the best stalking summary judgment, fact her. On position to observe the interaction between raising DeNardo therefore has the burden Bax workplace and DeNardo in the on a question material issue of fact on the daily basis. It would not be reasonable to whether Bax entertained serious doubts infer that Bax had serious doubts about the truth of her statement she was simply statements were true because she subjectively stalking worried DeNardo was only discussed her concerns with those most her. familiar with her situation and those best support In claim DeNardo's that Bax's DeNardo, coworker, able to assist her if malice, statement was made with stalking out to in turned fact be her. (1) essentially arguments: makes three since Moreover, publication persons excessive publish Bax did not her statement of concern reasonably necessary believed to be widely enough, actually she was not worried accomplishment purpose of the (2) her; stalking DeNardo was Bax had privilege privile would constitute abuse of the a motive to lie because she and DeNardo had ge.23 That Bax publication limited the rivalry, a workplace which resulted in De- her statement to two coworkers and her su naming Nardo defendant his pervisor-those (8) respond most if suited against federal employer; lawsuit his subjective fear that DeNardo was during deposi- intermission lawsuit, stalking proved true-supports tion in the federal shared lunch the con DeNardo, Parsons, Harris, clusion that her statement was well within "[nJobody displayed any nobody fear and ob- the bounds of the common interest jected." drawing Even all reasonable infer- workplace safety, and not that Bax doubt ences in favor non-moving of DeNardo as the fact, ed the truth of her statements. party, allegations these fail to raise seope publication appears of Bax's to have issue of material fact on the wheth- been so narrow that DeNardo did not even er Bax entertained serious doubts as to the learn about Bax's until concern he read her truth subjectively of her statement that she affidavit in the federal lawsuit when Bax's believed DeNardo was her. attorney, carrying for fear that DeNardo was weapon, deposition

On moved to scope publi- the issue of the narrow relocate his cation, opposition DeNardo noted his federal court. Schneider, Schneider, (adopting (adopting 624-25 stan- 723 P.2d at 624-25 stan- (SEconp) dards (Seconp) set forth in Restatement or Torts dards set forth in Restatement or Torts (1977)). § 599 emt. a (1977)). § cmt. a

22. Mount Juneau Enters., Inc. v. Juneau Empire, 829, (Alaska 1995).

G81 to listen in plaintiff that seemed Johnson Furthermore, opportuni- the DeNardo had conversations, listed telephone and on her about the basis witnesses ty stalking her "cold call" list the week prospects was on his that DeNardo Bax's belief prospects that enter- those on his claim she Ms. Bax had had to bolster after in order list. her "cold call" state- truth of her to the doubt as tained advantage of ments, to take he declined but not sufficient of ill will alone is But evidence depose he failed opportunity when that privilege. Accord- abuse of the to establish that suggestion The mere any witnesses. (Second) of Torts ing to the Restatement children, husband, Bax have told would (1977): § 608 emt. etc., friends, really had she family, neighbors, defamatory matter publication [A] is insuffi- stalking her DeNardo was believed privilege, giving rise to upon an occasion fact issue of material raise a cient to will, ill an solely spite from is if made doubts she entertained serious that she privilege. a use of the How- abuse and not stalking her. DeNardo was was worried ever, publication is made for the if the points to evidence DeNardo ques- protecting the interest purpose of she to defame him because Bax had a motive tion, in- publication the is the fact lists and commissions his customer coveted indigna- by resentment or spired part and notice an evaluation he filed and because supposed misconduct of the tion at the workplace nam a hostile of discrimination of an does not constitute person defamed DeNar- perpetrators. the ing Bax as one of privilege. abuse of the plaintiff Bax that he named as also notes do added.) jurisdictions, ev (Emphasis most against his former filed in the federal lawsuit plaintiff is disliked idence that a defendant to DeNardo's Affidavits attached employers. privile insufficient to establish abuse summary judgment mo to Bax's opposition Instead, that the must be shown ge.24 "ilt that there support an inference tion could 25 For predominant." improper motive and Bax ill will DeNardo was some between Appeals example, States Court the United at ANI. For ex they were coworkers when explained has of Columbia for the District into DeNardo's brief ample, incorporated Corporation interrogatories Calista were part of of ill will on the mere existence the lawsuit. When from the federal and ANI subject the the publisher toward complaints about about oral or written asked publisher's publication does not defeat DeNardo, Corporation and ANI re Calista is otherwise estab privilege if the privilege sponded: proper pur by lished the occasion occasions, Joy Holly Parsons and On a few Rather, pri court looks to pose. plaintiff disputes [DeNardo] with Bax by which the defendant mary motive to commissions regarding who was entitled and, fact that he inspired; apparently brought to the attention were on ads which indignation towards feels resentment Brandy Chris Casati. Johnson and/or defaming him enjoys will plaintiff and Joy Bax also discussed Holly Parsons and long so not forfeit Casati Brandy Chris Johnson and/or the interest purpose is to further primary unilateral plaintiffs concerns about their protection.[26] whichis entitled prospects that certain sales declaration alleges that harbored Here plaintiff, and concerns "belonged" to competed him because pros- ill will to take over sales toward plaintiff attempted commissions him for customers already pursuing. with they pects that were ANI and be- they employees Brandy when expressed concern to Joy omitted); Gelstein, Liberman v. Liset, see also Sack, citations Deramation: D. Sack on Rosert anp StanpER, 857, (2004). N.E.2d 590 N.Y.S.2d RetatED Prostems 9.3.1 80 N.Y.2d (1992) ("If defendant's statements Id. protected the interest were made to further also not that defendant privilege, it matters Bulgarian-American Enter. Ltd. v. 26. Novecon despised plaintiff."). (C.A.D.C.1999) (internal Fund, F.3d workplace part by in a implicated indignation dis resentment at cause he at ANI and in federal supposed crimination claim both misconduct of does not [DeNardo] might that Bax court. But evidence have privilege."2 constitute an abuse upon does not cast doubt disliked DeNardo Finally, DeNardo does not meet his bur- she feared DeNardo was her statement that during den when he notes that the intermis- stalking even concedes that her. DeNardo deposition sion of DeNardo's in the federal Meye parking Bax in the lot of Fred he saw lawsuit, DeNardo, Bax shared lunch with animosity allegations r.27 His between Harris, "[njobody displayed Parsons and speak himself and Bax do not even to the nobody objected." fear and The fact question might actually whether she have felt publicly that DeNardo and Bax ate lunch him. fear when she encountered He there together during an intermission from his de- fore did not raise a of fact that position perceive and DeNardo did "solely spite from Bax's statement was made display any nothing fear does to further his or ill will.28 argument she entertained serious repeating It that DeNardo's claim is bears doubts as to the truth of the statements based on a comment that Bax made in an made to coworkers when she and DeNardo in an affidavit unrelated federal case which employed were both at ANL. was filed because DeNardo refused to an- carrying weapon swer whether he was in a arguably While DeNardo set forth suffi deposition. Bax the court: informed cient evidence to establish that Bax disliked ANI, together we worked at there When him, he set forth no evidence to establish were several occasions when Mr. DeNardo "entertained serious doubts as to followed me in his vehicle. I was worried the truth of the statements."3 Because De- "stalking" me. I he was have ex- burden, Nardo has failed to meet his we pressed Holly concern about this to Par- affirm superior grant court's decision to action, sons and other defendants this as summary judgment to Bax. Rohlf, well as to Ms. Annie Harris has expressed concern to me that Mr. DeNar- IV. CONCLUSION loitering do around her resi- Holly dence last fall. Parsons has ex- reasons, foregoing For we conclude pressed my similar concerns. Based on superior protective that the court's order was knowledge observations and of Mr. DeNar- not an abuse Because discretion. ANI, together do while we worked statement she feared DeNardo was incidents, very based on these I am con- privileged her was as a statement of my personal safety cerned about in Mr. personal safety concern about in the work- presence. place, and because DeNardo has not raised a publication pur was made "for the issue of material respect fact with privilege, abuse of the we also AFFIRM the pose protecting question," the interest workplace safety, grant and therefore the fact that court's publication might "inspired have been to Bax. knowledge 27. We are in disregard accord with the court's that there was or reckless assessment of this incident: making Ms. Bax in these statements nothing [There regarding has been that has been submit- co-workers issues of at the my reading support ted in of the record to great which is issue an concern workplace, finding that Mr. DeNardo has shown that Ms. many people appropriate and an issue to making making Bax in these statements was bring up to one's co-workers. knowledge disregard them with reckless apparent falsity. say to their Which is to that I (SEconp) § 28. See Restatement or Torts 603 cmt. a acknowledgment by hear an Mr. DeNardo that (1977). point walking of fact these folks were out to their cars at the same time and did have an 29. See id. shopping at a encounter mall and Ms. Bax perceived way that Mr. Enters., Inc., 30. See Mount Juneau 891 P.2d at with, takes issue but he ... has not clearly presented any finding support evidence to

G83 principle concerns the The substantive EASTAUGH, dissenting. Justice, privilege that at seope of the conditional The respectfully I dissent. Introduction. workplace to communications about taches summary judgment be affirms court safety other matters of common interest. or that DeNardo did it concludes cause privilege if a conditional A declarant abuses genuine a issue presence of the demonstrate (1) knows the matter be she Bax abused whether fact about of material disregard to its acts in reckless as false or the that attached to privilege the conditional (2) defamatory matter is falsity,3 the truth or agree I made to coworkers.1 she statements than that published purpose for some other showing prima facie Bax made out privilege given is particular which the for conditionally privi that her statements (8) will), solely spite or ill the (e.g., out of ostensibly addressed they leged because unnecessary recipi an publication is made to safety.2 But mutual workplace (perhaps) or (4) ent, includes defamato publication or we must decide means that simply this reasonably to be nee- ry matter not believed and ar whether, argued below as DeNardo purpose for which essary accomplish here, genuine disputes factual are gues there The first two privileged.4 is the occasion abused, therefore whether apply grounds potentially here. view, my lost, privilege. In conditional procedural principle concerns The genuine factu at least two reveals the record reviewing sum granting for standard question: whether material al issues Summary judg mary judgment in Alaska. disregard knowledge or reckless as she may may not entered and therefore ment to coworkers falsity of her statements to the appeal on if there is not be sustained following that DeNardo legal fact.5 It is a genuine issue of material her, privileged spoke for and whether genuine issue of material question whether a questions record also raises purpose. The exists; exercise our inde fact we therefore actually spoke the words she about whether judgment reviewing the facts and pendent opinion rather expressed an to coworkers reasonably drawn from them the inferences there of fact. We should than a statement appellant when we decide in favor of the summary judgment and re fore vacate dispute genuine, material factual whether a mand. exists.6 for imposes a low threshold legal principles. Alaska law Controlling Before we summary judgment. defeating for evidence, a motion it useful to pertinent is turn to the Brown, case, we declined a libel principles, v. controlling legal the two consider Moffatt interpretation adopt Supreme Court's that set procedural, one one substantive and summary judgment standard federal follow. analysis we should stage for the disregard knowledge as to or reckless Instead 1. At 681-82. purpose." falsity necessary Restate for this is (1977). (SEconp) § d This Torts 599 cmt. mEnt Slope Borough, P.2d 992 Taranto v. North 2. See entirely clear 1999) precedents not been 1111, (Alaska speech have (holding on court's 1115 Newton, Briggs conditionally point. v. 984 P.2d privi- See public on this matters of (de- 1113, (Alaska 1999) (determining § whether 594 leged); or Torts 1121 Restatement by deciding privilege speech privilege whether tailing for related declarant abused conditional publisher"). "sufficiently important statement); interest in truth of had "reasonable belief" he 619, Save, P.2d Schneider v. accord Pay'N 1986). conditionally privileged (Alaska traditional- declarant 3. A ly did not believe the if she abused reasonable true or lacked statement to be Schneider, (adopting at 624-25 stan- 723 P.2d believing. v. grounds a result of so As Gertz (SEconp) or Torts Restatement dards set forth in 94 S.Ct. Inc., 418 U.S. Welch, Robert (1977)). § 599 cmt. (1973), Supreme in which 41 L.Ed.2d liability defamation is Court held strict 56(c);, Alakayak British v. R. Civ. P. 5. See Alaska unconstitutional, priv- the traditional conditional Packers, Ltd., Columbia negligence flege modified: "mere standard was 2002). being actions [now] for all as to falsity, required longer treated as sufficient defamation, is no privilege. of a conditional P.3d at 447. to constitute abuse Alakayak, Liberty Lobby, reviewing summary judgm in Amderson when on announced decision explained: Inc.7As we ent.11 is a "[TJhere issue' of mate adopting summary judg long rial fact pre Instead as the nonmovant has Anderson, ment standard articulated we sented in support legal some evidence of its theory."12 longstanding choose to continue our inter summary pretation judgment our stan granting upholding The standard for 56(c). dard as contained Civil Rule Civil summary judgments in Alaska is therefore 56(c) grant court to Rule directs a a motion rigorous more than the federal standard.13 summary judgment for when "there is no It does not matter under the Alaska standard genuine issue as to material fact and party ultimately which will bear the burden party moving judg ... is entitled to persuasion go should the case to trial.14 as a of law." ment matter We decline to a "Whether defendant has abused a incorporate applicable substantive evi- question a jury is of fact for the unless the dentiary standard into this sum state's only facts are such that one conclusion can mary judgment practice was done in [as 15 Here, reasonably question be drawn." 56(c) only requires ].... Anderson Rule summary on judgment should be whether showing genuine that a issue of material genuine DeNardo raised a issue of material litigated, fact and not a exists to be show ing trial, that a ^[8] party will ultimately prevail at fact about whether Bax abused the condition al privilege; stated differently, question is whether the court file contained evidence consequence We noted that as of this hold reasonably contradicting Bax's claim that her ing, "it is somewhat harder for a libel defen protected privilege.16 statements were dant to win in our state us, presented this case as it is to all that courts, using genuine the 'no issue of materi matters is whether there is more than a standard, al fact' than in federal court.9 demonstrating scintilla of evidence the exis Although present a non-movant must more that, believed, permit tence of facts if would than a "scintilla" of evidence to avoid sum (1) person a reasonable to find that mary judgment, either only the non-movant need (2) false, present knew her statements were enough "reasonably evidence truth, dispute tend[ or contradict" the entertained serious doubts as to ] evidence their presented by Moreover, (8) the movant.10 we primary purpose was not to ad have weigh held that we will not privileged evidence vance the identified interest.17 argue jettison 13. Bax does not that we should Brown, 7. v. P.2d 939, 751 943 Moffatt 1988) Inc., (discussing Liberty Lobby, prevailing Anderson v. that standard in favor of the federal 2505, 477 U.S. 106 S.Ct. 91 L.Ed.2d 202 standard so we have no occasion here to recon- (1986)). appropriate sider the standard. (internal omitted); 8. Id. at 943-44 citations see 14. Birch, Horton, Ball v. Cherot, Bittner & See (Alaska 2002). P.3d also 48 P.3d at 449. Alakayak, Moffatt, 9. 751 P.2d at 944. Schneider, 15. See 723 P.2d at 624. Alakayak, 10. 48 P.3d at 449. 16. See Lull v. Co., Wick Constr. P.2d 321, (Alaska 1980) (holding summary judg- appropriately granted plaintiff ment was Id. because regarding had not established triable issue of fact privi- whether had declarant abused conditional (emphasis original); Meyer Id. see also lege). State, Revenue, Dep't Support Child Enforce- N.G.T., (Alas- ment Div. ex rel. 1999) (holding putative ka opinion father's sworn 17. The court's states the standard as paternity prevented summary judgment, denial of raising follows: "DeNardo ... has the burden of though presented strong even movant had scien- material issue of fact on the whether showing paternity, "any tific evidence because Bax entertained serious doubts about the truth of evidence sufficient subjectively to raise issue of her statement that she was worried precludes summary finding material fact DeNardo was her." At 680. That (internal omitted) paternity") quotation marks would be the correct standard if the court were {emphasis original). only required to consider whether Bax abused complet- deposition be unfinished normally need evidence Cireumstantial intent, It also re- courthouse. the federal purpose ed an actor's ed to establish endeavors, disputed previously that she in the context vealed to DeNardo because Thus, it stated him to others. true spoken their expressly admit do not actors often worked at ANI DeNardo had evi acting.18 Cireumstantial that she and reasons available only presently advertising evidence is the sales dence months as for about seven and intentions Bax's belief relevant had been con- and that she representatives, correctly summary judgment was whether safety in DeNar- cerned about DeNardo. against entered extremely concerned presence and was do's deposition his had refused at because he relevant facts? the sources What are weapon brought a he had answer whether satisfy Alaska look to sources must We in her affida- deposition. also stated 56(c). She include these sources Here Rule Civil op vit that complaint, his verified verified motion, to Bax's position ANI, at there together when we worked interrogatories responses to Bax's sworn DeNardo when Mr. several occasions Bax of the affidavits requests, and production I worried vehicle. was me his followed Holly Parsons.19 and coworker I have ex- "stalking" me. he was that his background. DeNardo filed Factual Holly Par- this to pressed concern about and others after against Bax suit defamation action, as in this other defendants sons and 4, 2001 affida- April her and filed Bax served [my attorney]. well as action, then-pending federal in DeNardo's vit for the affidavit Bax said What al., Corp., et Case No. v. Calista DeNardo absolutely as privileged, supported court was Bax's affidavit federal A00-309 Civil. correctly De- ruled below.20 Judge Gleason require that protective order motion for -Le., Judge H. Russel Holland District United States by acting privilege with "actual malice" stated: disregard motion, knowledge as order reckless denied or with protective involving managed litigation Mr. defamatory See The court has statements. falsity of years. 624; He Schneider, approximately fifteen Briggs, at for 984 P.2d DeNardo at 723 P.2d thirty this cases in involved in some has been opinion considers whether then But the report had a of Mr. court has never court. The Bax about whether an issue DeNardo raised weap- violently having behaving by publishing the defamato- privilege abused any of these any on at time in connection that for purpose other than ry some matter for unpersuaded that proceedings. court (Le., The spite solely given privilege is which any that DeNar- Schneider, to believe Mr. there is reason will). 723 P.2d At 681-682. See or ill anyone attempt in connec- to harm do would 624; (Seconp) § cmt. or Torts 603 Restatement If, suggested, of case. as is tion with this (1977). opinion's of the stan- recitation The De- parties that Mr. or witnesses believe apparently narrow. too dard is "stalking" is a them, been Nardo has Anchorage Department Police matter for Inc., Drilling, P.3d Discovery 93 See v. Kinzel look into. 2004); (Alaska 427, Com- also Indus. see 434-35 denying is not Bax's motion the order Because 593, McLees, Elec., 600 101 P.3d Inc. v. mercial before the and was not appellate record in the (Alaska 2004) evi- (holding that circumstantial court, entry rely or text on its I do not appel- permitted inference that dence in record only to I refer to it error here. to demonstrate contracting alleged misrepresentation lee's a reader any premature conclusions temper fraudulent); Freight Phillips Mukluk v. was repeti- on the might DeNardo based draw about 1143, (Alaska 1986) Lines, Inc., 721 P.2d my opinion and in dissent in the court's tion presented (holding evidence that circumstantial may court DeNardo. A comments about gen- to raise expert affidavit sufficed witness's exercise rely as an properly on the order's result regarding whether fact issue of material uine notice, public text under the judicial and on its faith). appellee acted in bad hearsay v. exception rule. Hess to the records 2001) ('The 1121, (Alaska State, 20 P.3d equiva- pleadings are and documents 19. Verified acquittal. A reliably the fact of reflects evidence Weimar, 975 v. See Bennett lent to affidavits. may judicial of the fact notice thus take court 1999) (Alaska (citing Smith of Evidence P.2d Rule acquittal under Alaska an Thompson, 102 n. 1 201(b)(2), requested Or it implicitly here. as 1996)). acquittal be intro- io may evidence of the allow Rule hearsay exception under Alaska duced as a 803(8) acquittal is a because Evidence potentially was that DeNardo 20. Bax's assertions record."). public court. matter the federal dangerous convince did not appear argue Nardo actually does here to the Bax told coworkers is material be argues contrary. opinion He instead that what cause the court's assumes she was merely expressing previously opinion told her coworkers was actionable coworkers an (belief, concern, worry), because rather than a Bax abused the conditional matter may of fact.23 It assuming, among also be potentially applied. things, other that DeNardo must demon (or said). may What said have The strate that Bax actually knew she was not court potentially fails to address the critical spoke worried or that recklessly she when threshold actually about what Bax supposedly worried, said she was an opinion told her coworkers. Its assumes that arguably thing harder to establish than dem Bax told them that she "was worried he that, onstrating when she accused him of 'stalking' was me." her, she either knew the accusation assumption apparently The court's derives recklessly was disregarded falsity. false its April from Bax's 2001 affidavit. But that law, Under Alaska defamation actions are only affidavit states that Bax was "worried constitutionally barred allegedly "where the me," 'stalking' he was not that she had expressions statements are told coworkers that she was "worried he ideas reasonably and 'cannot interpreted 'stalking' only me." gener- The affidavit stating actual facts about an individual.' ally coworkers; describes what she told it "" The critical distinction is between does not describe the content of conver- represented "statements 'expressions as precision. sation with ideas' and statements purporting represent to fac ts."25 It is from exactly To ascertain whether a state unclear the record what Bax told her coworkers.22 There is a differ factual, ment is this court considers the con ence between what a declarant thinks statement, text including of the speaker's cautionary use of equivocating actually what a declarant words."26If declares. What 675, 4, (quoting part 21. April At 680 of Bax's allegedly that comment Bax made was that Bax affidavit). 2001 stalking was worried that DeNardo was her and her."); stalking not that he was in fact id. at 681 ("DeNardo opportunity had the wit- attempt quote 22. The court did not declarations; nesses about the basis for Bax's that granting belief De- Bax's Bax's motion for ...."); stalking ('But Nardo was summary judgment, her id. at 682 the court stated that it found Bax, might evidence that Bax that have "to extent that she made disliked DeNardo comments upon being to lowed, does not cast doubt co-workers that she felt she was fol- statement that she her."). stalking that feared even if she used the word that DeNardo was she felt being she stalked, was that those comments ... subject privilege." were 955, Living 24. Fellowship, Sands v. Word (Alaska 2001) (quoting 960 Milkovich v. Lorain Thus, opinion frequently quotes the court's Co., Journal 1, 497 U.S. 110 S.Ct. 111 (1990)); affidavit, or characterizes her statements, Moffatt, LEd.2d 1 see also 751 at P.2d "concern," "fear," expressing "worry," as or a (holding that declarant's use of word "horri stalking "belief" that DeNardo was her. Id. at procedure ble" to describe "simply medical was 675, 675, 678, 679, 680, 681, 682, 682, 683. The opinion of the author" and was therefore opinion distinguish fails to between what Bax Amendment). protected by First stated in her 2001 affidavit about what she be- may lieved actually and what have she said to 25. Kinzel, 439; 93 P.3d at see also id. at 439-40 ("DeNardo coworkers. See id. at 674-75 based " (noting n. 50 'that a distinction should be made by his claim on Bax comments made to cowork- evaluative-type opinion between an and the de- ers that she was that [DeNardo] "worried was type," actually ductive imputing the latter facts "); ('The "stalking" [her].' at 678 id. proven that can potentially be false and thus court reasoned that the statements Bax made to KeEton, aL, actionable") (quoting W. Pace Er Pros- being coworkers that 'she felt she was stalked' anp ser § on tas Law or Torts at 113A, 814- conditionally privileged were as statements of (5th ed.1984)). personal concern about in the work- here, place."); ('Where, id. at 679 as a worker reveals to coworkers that she is concerned that (considering Kinzel, 93 P.3d at whether her, might prefatory phrase another stalking allegedly coworker "I wonder" made suffi- de- ciently important famatory pub- protected interest to conjecture); the statement's statement see lisher, stake."); safety, Inc., Haynes Knopf, is at id. also v. Alred A. 8 F.3d ("We (7th Cir.1993), Kinzel, note that false cited in 93 P.3d at ANI, told worked at she view, when she subjective sations expressing speaker is also noticed Holly "that she had Parsons claiming theory, rather than aor speculation, couple in his vehicle a plaintiff follow her facts that objectively verifiable possess times, following her into a to be and seemed statement, the state the truth confirm It stated that opinion one occasion." also The court's store on actionable.27 is not ment knowing plaintiff Parsons told Ms. she "also claim analyze the defamation today seems her made her uncomfortable." had followed state though Bax's statements one "[oln answer further stated Her fact.28 ments of occasion, Brandy Bax commented to Ms. determining start must therefore We Johnson, plaintiff's supervisor, their reasonably find could a factfinder whether Likewise, when DeNar- following her...." as a Bax told others the record from ac- discovery requests asked what do's her, or stalked that DeNardo matter of fact com- Brandy took after Bax tions Johnson im civreumstances her under followed stalking, responded plaintiff's plained of 4, 2001 affidavit is stalking. April Her plied what, if did "not know oath that she under describing what she said ambiguous mentioned any, were taken she actions after isolation, possible it is 2000. Taken following her." had seen DeNardo that she coworkers imply that she told it to read added.) (Emphasis was "worried" propriety considering purposes For only her, express was therefore and that she discovery summary judgment, these not a statement qualified opinion, ing a Bax un- compel an inference that answers rely on seems to opinion court's fact. The had coworkers that DeNardo qualifiedly told deciding that it was not implication in this her, merely them not that she told followed Bax.29 summary judgment to grant error to "worried" or was "concerned" that she was be taken implication cannot But a "belief" that DeNardo or had formed isolation, improperly take do so would and to followed her. Indeed, in favor of the movant. inferences view, opinion's misapprehension my In reasonably the affidavit also the words of misdirects the remain- what Bax said to the mov- unfavorable permit an inference factually opinion's analysis, both der ant, unqualified an expressed had that she material, If this issue is legally. that DeNardo fact to coworkers statement of must set implies, we the court's treatment as had stalked her. summary judgment. aside event, beyond the must look In we main factual brings us to the two This superi- to other evidence before affidavit summary judgment. preclude disputes that discovery, sup- Bax's statements or court. disregard Knowledge DeNardo, reckless or by con- superior court plied to the falsity dispute is The first of statements. interrogatory An qualification. tain no such recklessly disre- Bax knew of or whether her communications her to describe asked falsity of her state- (possible) garded this case. regarding the facts of others with had followed or stalked that DeNardo during conver- ments answer stated Her sworn (Le., analysis were the ("A phase the defamation an is not shielded from statement of fact actionable) with the statements by being prefaced defamation action for (ie., analysis abuse-of-the-privilege was there plain my opinion,' if it is that the but words 'in purpose). publication for some other or malice subjective ... expressing a view speaker is summary to the mistake contributed The same actionable."). statement (which judgment was entered in reliance order Newton, Briggs P.2d opinion on our Kinzel, 440. 93 P.3d at 1999)). to the affi- refers Thus, direct- not, however, does frequently 28. The opinion court's opinion to co- Bax's statements davit and characterizes ly were state- whether Bax's statements consider "fear," "concern," "worry," terms of workers in expressions And the of ideas. ments of fact suggests were 680, 681, opinion that the statements 675, 675, 678, 679, court's "belief" At ap- all characterizations 683. These opinions, discuss whether but does not impliedly affidavit pear from how Bax's by to derive protected Amend- First statements were her statements. opinion initial described blends the Thus the court's ment. complaint Furthermore, her. DeNardo's defamation in discovery Bax identified no verified. It is therefore to be treated as an witnesses to stalking and did not remember alleged affidavit.30 It that Bax any stalking. and others the dates of DeNardo also correctly Bax, stalking had stated that DeNardo was them noted that who had com plained alleged manager Brandy Johnson, or had stalked them. It then to sales stalked, followed, never up regarding "DeNardo at no time followed stalking her complaints what, and did not any, loitered outside defendants' know resi and/or if actions were taken Although may dences." that denial Parsons. be am biguous-it is unclear whether "outside de opposition DeNardo's verified described fendants' residences" modifies "stalked" or cireumstances that he contended confirmed complaint "followed"-the verified also as spoken that Bax had falsely accusing him (and Bax's) serted the defendants' thus stalking her. Some of these cireum- statements that DeNardo had stalked Bax may suspect stances they because expressed were "false." DeNardo also an personal not a matter prior knowledge or unqualified denial when Bax moved for sum observation to DeNardo. But to the extent mary judgment; opposition his verified these circumstances are based on DeNardo's her motion stated: "Plaintiff never stalked interpretation of what Bax and others said James, Joy Parsons, Holly or Annie response discovery and in other court response Harris." to Bax's assertion in papers, may we consider them in deciding plaintiff motion that summary whether judgment was entered er Bax, stalking never denied DeNardo stated roneously. cireumstances, These they if are opposition: contraire, in his verified "Au correct, support tend to a conclusion that plaintiff specifically stalking § denied III DeNardo actually did not stalk or follow 12 in plaintiff's complaint." verified Bax; they consequently support also a con clusion that Bax knew that DeNardo had not Other reasonably per cireumstances also followed or stalked her and therefore that mit inferences that DeNardo actually had not really she was not worried that DeNardo had stalked or followed Bax and that Bax did not followedor stalked her.33 really think he had.31 This included evi dence, discovery contained in respons opposition verified also de- es, that Bax complained had not seribed several cireumstances about which he anyone but her coworkers. As DeNardo knowledge that would reason- out, ably points permit an inference that Bax was not discovery responses revealed that complain husband, she did not to her actually her afraid of DeNardo or that she had (one two children of whom was then spoken falsely about to others about DeNardo. old), years police, twelve supervisors, Thus, or ANI opposition his during asserted that and any that she did not 8, tell of them that she March deposition, intermission in his thought presented DeNardo a threat Bax, to he had Parsons, shared lunch with and workplace safety because he had followed or Harris. About that event he stated that Bax stalked her. in discovery admitted "[njobody that displayed any nobody fear and ob- there were "never jected." verbal or written (al- This permit cireumstance would statements" that DeNardo had stalked Bax. though certainly compel) finding that 30. See Bennett v. Weimar, grant The court itself declined to 691, (Alaska 1999) (citing Thompson, Smith v. falsity prong on the of her 101, (Alaska 1996)). P.2d 102 n. 1 defamation claim. The court noted that DeNardo had raised a triable issue of fact re- 31. Because there is no direct evidence of Bax's garding whether Bax's claim that DeNardo fol- allegedly belief in the truthfulness of her defama- lowed her was false. statements, tory approach DeNardo's most viable showing to abuse of the conditional on Thus, actually even if Bax grounds did tell coworkers malice is to convince the fact finder that (a) that she was "worried Bax's that" DeNardo statements that stalked DeNardo stalked her (b) were false and that Bax therefore must have her, DeNardo sufficient evidence presented put known her dispute belief that DeNardo had into stalked her whether she was actual- was false. ly worried that he stalked her.

G89 evaluation, office which DeNardo's she read De- consider not, as of even Bax did "detailing Bax's characterizes Given DeNardo harm.34 a threat of present Nardo advertising ac hijack DeNardo's that she activities affidavit in her 2001 the assertion discriminatory and hos safety in and create counts her about currently concerned was that it is He asserts work environment." lunch also tile a shared presence, DeNardo's place her accusation took "important" that credibility questions about to raise seems accusing evaluation read DeNardo's after she affidavit. in her averments of the other truth "account employees of the other about her and raises potentially It thus discriminatory conduct." heinous was theft and in 2000 she true that it whether "fabricated her that Bax asserts whether she DeNardo her "worried" about told cowork ter allegedly to cause DeNardo's stalking accusations when she was truthful his client list." mination and obtain or stalked followed DeNardo had ers that asserted opposition also DeNardo's her. supports a potentially that The evidence filed, her coworker he was had when that he maliciously or Bax acted either finding that of discrimi ANI, and notice an evaluation purpose is not neces privileged not for the "major perpetra Bax as a that named nation it is nonetheless suffi sarily compelling, but place. creating a hostile work tor" judgment on this summary preclude cient to some evidence complaint is knowledge of his Bax and disputes had issue.36 might have to show that tend that would retaining accounts. his other coworkers falsely speak a motive-retaliation-to account accusations of mutual There were Likewise, al of her recklessly. evidence eval ten-page "feedback" piracy. com lists and in his customer leged interest February asserted uation of another to demonstrate would tend missions in a discrimi distributed accounts had been reckless knowingly false or motive fa him and natory that disfavored fashion speech. docu in the same Bax. He asserted vored brings This Purpose statements. continually attempted to Bax had ment that inBax dispute: whether the last factual us to own. His June accounts as her claim his privileged. purpose spoke for fact management asserted ANI complaint to complaint verified his DeNardo asserted joined "purposely others had that Bax and maliciously, were made Bax's statements vindictive a hostile and together to create harm him. DeNardo and were intended against me." focused atmosphere office ac Bax was motivated here that asserts documented; easily are not assertions These efforts falsely by "persistent him cuse of the two documents the existence and com customer lists coveting DeNardo's had seen them that she admission apparent knew her that Bax He asserts missions." there an inference reasonably permit "she intended false and that statements workplace from why, apart were reasons well-being." reputation in his injure plaintiff others that De- might have told safety, Bax the "malicious claims that ardo DeN stalking her. following or Nardo was stalking accusations groundlessness" Moreover, discussed above the facts discov in context of her considered must be falsely had that Bax an inference permit admits claims that she ery responses. He opin impression the court's to the In contrast also be finding would on remand 34. Such 681-682, leave, does not DeNardo might ion judge who by federal supported the fact that the summary judgment prove on have apparently protective motion order denied Bax's (or spite or ill will purpose was predominant present a threat of DeNardo did not consider only purpose), but non-privileged some other harm, either. reason genuine such that issue needs to raise predomi disagree jurors over could able on asserts effect, 35. Likewise to similar Oil Co. purpose. Hatten v. Union See nant per "deliberately her se made appeal that Bax 1989) (holding 1150, 1153 Cal., 778 P.2d stalking order to ob- accusations in predominant determining employer's that where accounts, destroy his advertising balancing firing employee tain DeNardo's involved for motive credibility, question of weighing evidence her discrimina- the extent of and hide credibility, decided have been case should predominant motive tory conduct memorialized fact). by trier of Newspapers, Inc." against Alaska Calista and imply accused DeNardo of her also saying for things

that her motive those Thus, promote workplace safety.

not to evi- complained

denee that Bax had not of stalk- husband,

ing children, police, to her supervisors

ANI she had not told presented of them that DeNardo workplace safety

threat because he had her, reasonably implies

followed or stalked by workplace Bax was not motivated personal safety or even when she

spoke. implies -It spoke instead that she for

some other-and unprivileged therefore Likewise,

impermissible-purpose. DeNar- noted, seems, correctly Bax,

do it who complained manager to sales Brandy

Johnson, up never regarding followed what,

stalking complaints and did not know if

any, actions were taken Parsons. And

again, DeNardo contended that

safety could not have been Bax's speaking,

reason given for that DeNardo

shared Iunch with Bax and other defendants

during an deposition. intermission in his 2001

Having lunch with po- DeNardo also seems

tentially inconsistent with Bax's assertion in

her 2001 very affidavit that "I am concerned my personal safety in Mr. DeNardo's

presence." credibility This raises predominant casts into doubt her motive

for speaking. Any

Conclusion. one of these three factual

disputes precludes summary judgment and

precludes affirmance. We should therefore

vacate the and remand proceedings. further Alaska, Petitioner,

STATE of PARKER,

David L. Respondent.

No. S-11503.

Supreme Court of Alaska.

Nov. 2006.

Case Details

Case Name: DeNardo v. Bax

Court Name: Alaska Supreme Court

Date Published: Oct 27, 2006

Citation: 147 P.3d 672

Docket Number: S-11487, S-11508

Court Abbreviation: Alaska