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Deem v. Baron

United States District Court, D. Utah

February 27, 2019

DARRELL L. DEEM, et. al., Plaintiffs,
TRACEY BARON, et. al., Defendants.




         In 2009, Plaintiffs and Defendants began working together on real estate investments. Plaintiffs provided funds and Defendants performed the ground work. The relationship began to deteriorate in 2015 due to a number of disagreements. Plaintiffs filed suit in 2015. Defendants filed a counterclaim in 2017. In this motion for summary judgment, Plaintiffs “seek partial summary judgment on the tort issues of Defamation, Interference with Economic Relations and Abuse of Process.” ECF No. 230 at 4. Although Plaintiffs allege that Defendants asserted these three claims as counterclaims, Defendants point out that there is currently no claim before the court for interference with economic relations.[1] Because there is no claim for relief so pleaded, this court need not render a decision on that claim. The court also notes that Plaintiffs have not presented any evidence or argument to support summary judgment on the abuse of process claim, so this court's prior denial of summary judgment on this claim stands. The only remaining claim before the court is Defamation.

         Although the plaintiffs do not seek relief on other grounds in their motion, they do brief a number of other claims and defenses: (1) rent skimming, (2) licensing violations, (3) tax code violations, (4) loan disclosure violations, (5) bankruptcy violations, and (6) violations of the Fair Debt Collection Act. Defendants have withdrawn the rent skimming, bankruptcy, and Fair Debt Collection Act claims, so the court will not address those claims. As to the remaining claims, Defendants first argue that Plaintiffs' motion fails to comply with the governing rules for identifying and arguing undisputed material facts. Second, Defendants argue that Plaintiffs failed to establish an undisputed fact record on which to base summary judgment. Finally, Defendants argue that Plaintiffs have not adequately met the requirements and are therefore not entitled to summary judgment as a matter of law.


         The moving party is entitled to summary judgment if there is no genuine issue as to any material fact and the moving party can prove all the elements of the claim as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material for purposes of summary judgment if its determination might affect the outcome of the suit under the governing law.” Roberts v. Jackson Hole Mountain Resort Corp., 884 F.3d 967, 972 (10th Cir. 2018). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When considering summary judgment, the court must view all evidence in the light most favorable to the non-moving party. Commercial Union Ins. Co. v. Sea Harvest Seafood Co., 251 F.3d 1294, 1298 (10th Cir. 2001).

         A party is permitted to move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or affirmative defense. Celotex Corp., 477 U.S. at 322. However, in such case, the movant cannot simply make a conclusory assertion that the opposing party has no evidence; rather, the movant must identify specific issues and demonstrate the absence of evidence. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). The burden then lies on the non-moving party to establish the existence of a genuine issue of material fact pertinent to each element essential to its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If there is a genuinely disputed material fact, the case must proceed to trial. However, if there is a lack of a genuinely disputed material fact, “[t]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.


         A. Defamation and Slander

         Under Utah law, a statement is defamatory if it “impeach[es] an individual's honesty, integrity, virtue, or reputation and thereby exposes the individual to public hatred, contempt, or ridicule.” Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988) (citing Utah Code Ann. § 45-2-2(1)). The guiding principle in determining whether a statement may be considered defamatory is its tendency to damage a reputation. Id. A plaintiff pursuing defamation must prove the following elements: (1) the named defendant published statement(s) about the named plaintiff; (2) the published statements were false, defamatory, and not subject to privilege; (3) the statements were published with the required degree of fault; and (4) the publication caused damage to the plaintiff. West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994); see also Model Utah Jury Instruction CV1602. “Whether a statement is capable of sustaining a defamatory meaning is a question of law.” Id.

         A statement is defamation per se if the words used fit within one of the well-established categories. Westmont Mirador, LLC v. Miller, 362 P.3d 919 (Utah App. 2014). In order to rise to the level of defamation per se, “the defamatory words must charge criminal conduct, loathsome disease, conduct that is incompatible with the exercise of a lawful business, trade, profession, or office, or the unchastity of a woman.” Baum v. Gillman, 667 P.2d 41, 43 (Utah 1983). Further, the statements “must be of such common notoriety that damage can be presumed from the words alone.” Id. Under Utah law, damages are presumed if a statement is defamatory per se. Farm Bureau Life Ins. Co. v. Am. Nat. Ins. Co., 505 F.Supp.2d 1178, 1192 (D. Utah 2007). To determine whether a statement is libelous per se courts must look to whether the language used concerns a person (or his or her affairs) that “from its nature must, or presumably will as its natural and proximate consequence, cause pecuniary loss to the person about whom the statement is made.” Id. However, “if a statement is capable of two interpretations, where one is slanderous and the other not, the statement is not slander per se.” Id.

         Defendants in this case filed a counterclaim against Plaintiffs alleging defamation and slander. In Plaintiffs' Motion for Summary Judgment, Plaintiffs make three arguments in favor of summary judgment on the defamation claim. First, Plaintiffs argue that “Defendants have not offered evidence of any kind concerning the alleged defamation.” ECF No. 230 at 8. Second, Plaintiffs argue that they have not “communicated with any of Defendants ‘important stake holders' in any fashion, let alone defamatorily or slanderously.” Id. at 9. Finally, Plaintiffs argue that truth is a complete defense and is considered privileged communication, and that even if they have communicated with important stake holders, Defendants have failed to allege “that such communications were not truthful.” Id.

         In their opposition to the motion, Defendants dispute Plaintiffs' allegations with exhibits identifying specific statements and their falsity. These statements include “that one or more of the defendants committed fraud, stole money from the plaintiffs, could not be trusted, was taking money from others ‘under the table,' and would be going to jail if he acted to ‘pressure' tenants…” ECF No. 236, at 4-5. These statements considered in the light most favorable to the nonmoving party, may fit within the boundaries of defamation per se as stated in Baum because these words seem to charge Defendants with criminal conduct and/or conduct incompatible with the exercise of lawful business. Defendants have sufficiently established the existence of disputed material facts with regard to the defamation claim.

         Defendants also challenge Plaintiffs' assertion of privilege, arguing that Plaintiffs did not invoke a privilege other than truth. They also assert that there is no applicable privilege in the present case pursuant ...

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