Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. Bax (10/27/2006) sp-6066

DeNardo v. Bax (10/27/2006) sp-6066, 147 P3d 672

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

DANIEL DeNARDO, )
) Supreme Court Nos. S- 11487/11508
Appellant/ )
Cross-Appellee, ) Superior Court No.
) 3AN-01-10083 CI
v. )
) O P I N I O N
JOY BAX, )
) No. 6066 - October 27, 2006
Appellee/ )
Cross-Appellant. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:    Daniel   DeNardo,   pro   se,
          Anchorage,   Appellant  and   Cross-Appellee.
          Joan   E.    Rohlf,  Guess  &   Rudd,   P.C.,
          Anchorage, for Appellee and Cross-Appellant.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.
          EASTAUGH, Justice, dissenting.

I.   INTRODUCTION
          Daniel  DeNardo filed this lawsuit against  his  former
coworker Joy Bax alleging defamation.  DeNardo based his claim on
comments  made  by  Bax to coworkers that she  was  worried  that
[DeNardo] was stalking [her].  The superior court granted summary
judgment  to  Bax  on  the  grounds  that  her  statements   were
privileged as statements of concern about personal safety in  the
workplace  and  that DeNardo had failed to provide evidence  that
Bax  abused the privilege.  DeNardo appeals, conceding that  Baxs
comments  were privileged but arguing that there were  sufficient
factual  issues surrounding the question of abuse that the  issue
should  have  been  submitted to a jury rather  than  decided  on
summary   judgment.    Because  the  superior   court   correctly
determined  that  DeNardo failed to produce  sufficient  evidence
that  Bax  acted with knowledge or reckless disregard as  to  the
falsity  of  her  statements (thereby abusing the  privilege)  we
affirm.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Daniel  DeNardo and Joy Bax were formerly coworkers  at
Alaska Newspapers, Inc.  (ANI).  When DeNardo was terminated from
ANI,  he  filed  a  lawsuit in federal court against  his  former
employer,  its  parent company Calista Corporation,  and  several
former  coworkers, including Bax.  During a videotaped deposition
in  that  case attended by Bax, DeNardo was asked by Joan  Rohlf,
attorney for defendants, if he was currently in possession of any
weapons.  DeNardo refused to answer.
          Based  on DeNardos refusal to answer whether he was  in
possession  of  a  weapon at the deposition, Rohlf  moved  for  a
protective order, requesting permission to conduct the  remainder
of  DeNardos deposition at the federal courthouse, where  DeNardo
would  have  to  undergo a security screening.  Attached  to  the
motion  were  affidavits from Rohlf and three of the codefendants
present at the deposition, including Bax.
          Baxs affidavit in support of the motion stated:
          I  attended Mr. DeNardos deposition on  March
          9,  2001.  I was extremely concerned when Mr.
          DeNardo  refused  to answer  whether  he  had
          brought a weapon to the deposition.  When  we
          worked  together at ANI, there  were  several
          occasions when Mr. DeNardo followed me in his
          vehicle.   I was worried that he was stalking
          me.   I have expressed concern about this  to
          Holly  Parsons and other defendants  in  this
          action,  as  well  as to  Ms.  Rohlf.   Annie
          Harris  has expressed concern to me that  Mr.
          DeNardo  was  loitering around  her  personal
          residence  last  fall.   Holly  Parsons   has
          expressed  similar  concerns.   Based  on  my
          observations  and knowledge  of  Mr.  DeNardo
          while we worked together at ANI, and based on
          these incidents, I am very concerned about my
          personal safety in Mr. DeNardos presence.
          
     B.   Proceedings
          
          In  response  to this affidavit, DeNardo  filed  a  new
lawsuit  in  superior  court alleging that Bax  maliciously  made
statements  to  coworkers, Holly Parsons and Annie  Harris,  that
DeNardo  was stalking Bax.  DeNardo claimed that Baxs  statements
were maliciously made, false, defamatory, spurious, and libelous,
and  were  understood  by  others as  referring  to  DeNardo  and
charging  DeNardo  with the corrupt and dishonorable  conduct  of
stalking  which is criminal conduct in the State of  Alaska.   In
the complaint, DeNardo denied stalking or following Bax.
          During  the course of discovery, DeNardo filed  several
interrogatories  and requests for production.  Bax  moved  for  a
protective  order asking that the superior court  limit  DeNardos
access to certain witnesses and preclude discovery irrelevant  to
the  defamation  suit.  The superior court granted  this  motion,
allowing  DeNardo to depose Baxs former employers and  ex-husband
only  if DeNardo provided proper notice to Baxs counsel and  each
deponent and only if Baxs counsel was present at the depositions.
The  superior  courts order required all telephone  conversations
between DeNardo and Baxs ex-husband, coworkers, or supervisors to
be  conducted  as  conference calls in which Baxs  counsel  could
participate.   The  superior court limited  the  scope  of  these
depositions and phone calls as follows:  DeNardo may ask whether:
(1)  Bax  ever informed the witnesses whether she had  ever  been
stalked . . . followed, or harassed by Mr. DeNardo; (2) what such
stalking or harassment reportedly consisted of; and (3) the basis
for  Baxs  stated  belief.   The superior  court  also  permitted
DeNardo  to  ask whether Bax had informed witnesses that  DeNardo
had loitered at residences.  The order specified that DeNardo was
not  allowed to ask witnesses about Baxs personal life or  social
relationships  and  was not permitted to question  the  witnesses
about  information irrelevant to the defamation claim.  The court
noted  that  Bax  was not required to provide  DeNardo  with  her
current  address  as  long  as she was  represented  by  counsel.
DeNardo  also  was  not  allowed to contact Baxs  twelve-year-old
daughter.   DeNardo  moved for a reconsideration  of  the  courts
protective order, but that motion was denied.
          Bax  moved  for  summary  judgment,  arguing  that  her
statements  were  not false because they were based  on  her  own
observations  and subjective concern that DeNardo  was  following
and possibly stalking her.  She also asserted that the statements
in  her affidavit filed in the federal court case were absolutely
privileged and that the conversations she had with coworkers that
were  referenced  in her affidavit were conditionally  privileged
because coworkers share a common interest in workplace safety.
          DeNardo  opposed  Baxs  motion, denying  that  he  ever
stalked  Bax  and  claiming  that Baxs  allegation  that  DeNardo
stalked her was defamation per se.  He further argued that [e]ven
assuming a conditional privilege, it is a jury issue whether  the
privilege  is  lost  from  abuse  upon  a  showing  of   reckless
disregard, deliberate indifference, or actual malice.
          The   superior  court  granted  Baxs  summary  judgment
motion, finding that Baxs statements in the sworn affidavit filed
in the federal court case were completely privileged and that the
statements  made  by  Bax  to  coworkers,  memorialized  in   the
affidavit, were protected by a conditional privilege,  the  abuse
of  which DeNardo had failed to establish.  Although the superior
court  held that Bax was not entitled to summary judgment on  the
questions  whether her statements were false or negligently  made
or  whether Baxs statements were defamation per se, the  superior
court  found that nothing has been submitted . . . to  support  a
finding  that Mr. DeNardo has shown that Ms. Bax in making  these
statements  was making them with knowledge or reckless  disregard
as to their apparent falsity.
          On  appeal,  DeNardo argues that even if Baxs  comments
were  privileged,  there are disputed facts  as  to  whether  the
privilege  was  abused.  Therefore, he argues, his claims  should
have  been submitted to a jury rather than disposed of on summary
judgment.   He further challenges the superior courts  protective
order  as a violation of the work product privilege and his right
to discovery.1
III. DISCUSSION
     A.   Standard of Review
          The  superior  court has broad discretion to  determine
the scope and extent of discovery and to craft protective orders.2
A  courts  protective  order restricting discovery  will  not  be
overruled absent abuse of discretion.3
          We   review  a  grant  of  summary  judgment  de  novo,
affirming  if  the record contains no genuine issue  of  material
fact and the moving party is entitled to judgment as a matter  of
law.4   When  considering  a  motion for  summary  judgment,  all
reasonable inferences of fact from the proffered evidence must be
drawn  against  the moving party and in favor of  the  non-moving
party.5
          Whether  a  statement  is  defamatory6  and  whether  a
statement  is afforded privilege7 are questions of law.   If  the
relevant facts of the case are disputed, a jury must determine if
a conditional privilege has been abused.8  When considering legal
issues   of  first  impression,  such  as  whether  a  previously
unrecognized  privilege applies, we will adopt the  rule  of  law
that  is  most  persuasive  in light of  precedent,  reason,  and
policy.9
     B.   The   Superior   Courts  Protective   Order   Did   Not
          Inappropriately Restrict Discovery.
          
          As  a  threshold matter, we address DeNardos appeal  of
the   superior  courts  decision  granting  Baxs  motion  for   a
protective order.  Under Alaska Civil Rule 26(b)(1) a  party  may
obtain  discovery regarding any matter, not privileged  which  is
relevant  to  the subject matter involved in the pending  action.
But  the  court can, with good cause, enter any protective  order
that   justice  requires  to  protect  a  party  or  person  from
annoyance, embarrassment, oppression, or undue burden or expense.10
Civil Rule 26(c) allows the court to deny discovery, to designate
certain  terms  and  conditions for discovery,  to  regulate  the
method of discovery, and to limit the scope of discovery.11
          1.   The  superior  courts protective  order  struck  a
               reasonable  balance  between  DeNardos  right   to
               discovery  and  Baxs right to  be  protected  from
               unduly intrusive discovery.
               
          The superior court did not abuse its discretion when it
limited  DeNardos discovery to facts relevant to  his  defamation
claim.   DeNardos defamation claim centered on whether  Bax  made
          defamatory statements to her coworkers that she was worried
DeNardo  was stalking her and whether these statements were  made
with  malice.   The superior courts order confining discovery  to
whether Bax ever informed witnesses that she had been stalked  or
harassed  by DeNardo, what such stalking or harassment  consisted
of,  and  the  basis for Baxs stated belief, struck a  reasonable
balance  between DeNardos right to discovery on  his  claim,  and
Baxs   right  to  be  protected  from  annoyance,  embarrassment,
oppression, or undue burden or expense.12
          The   superior  courts  order  that  DeNardo  was   not
permitted  to  elicit  information about Baxs  personal  life  or
social  relationships and was not entitled to Baxs  address  also
achieved  a  reasonable balance.  In seeking a protective  order,
Bax informed the trial court that she was gravely concerned about
disclosing her current address to Mr. DeNardo for the very reason
that  has  become  the  subject of  this  lawsuit:   Mr.  DeNardo
followed  her  on several occasions in the past, eavesdropped  on
her  private conversations at work, and reportedly has  shown  up
unexpectedly near the residences of at least two of their  former
female  co-workers.   Given the nature  of  the  controversy    a
defamation  claim based on Baxs expression that she  was  worried
DeNardo  was  stalking her, which was only  brought  to  DeNardos
attention in an affidavit in support of a motion seeking a secure
location  to  conduct  a  deposition for fear  that  DeNardo  was
carrying  a weapon  the court was well within the bounds  of  its
discretion  in  limiting  access  to  this  personal   and   only
tangentially relevant information.  Because of the nature of  the
dispute,  the  court  also  reasonably  prohibited  DeNardo  from
contacting Baxs young daughter.  Moreover, there is no indication
from the record that Baxs daughter would be likely to provide any
relevant evidence.
          DeNardos  arguments  that the courts  protective  order
restricted  the  presentation of facts on summary  judgment,  and
that  Baxs family members, former husband, former employers,  and
neighbors basically were ruled out of bounds are unpersuasive  in
light of both the reasonableness of the superior courts order and
the  fact that DeNardo made no effort to depose any witnesses  to
support  his  claim within the sensible parameters drawn  by  the
superior court.
          We  therefore conclude that the superior court did  not
abuse  its discretion when it crafted a protective order designed
to  balance  Mr.  DeNardos  right to the  discovery  of  relevant
information against Ms. Baxs right to privacy and her  fears  for
the personal safety of herself and her daughter.
          2.   The  superior  courts  protective  order  did  not
               violate the attorney work product privilege.
               
          DeNardo  also  argues  that the superior  courts  order
allowing  DeNardo to interview and depose witnesses only  in  the
presence of Baxs counsel violated the work product privilege.  He
alleges  that  the  protective  order  affected  [his]  interview
strategy, the witness testimony, and allowed Bax to be  privy  to
the  content of [his] notes and fact collection.  In so  arguing,
DeNardo misconstrues the work product privilege.
          The  attorney  work product privilege  is  designed  to
protect the mental impressions, conclusions, and opinions  of  an
attorney in the preparation of materials for use in litigation.13
As  set  forth in Langdon v. Champion, in order for materials  to
qualify  for work product protection, the material involved  must
be:   (1)  a  document or other tangible thing, (2)  prepared  in
anticipation of litigation or for trial, and (3) prepared  by  or
for the opposing partys attorney or representative.14
          Bax did not seek discovery of any documents or tangible
items  prepared by DeNardo for use in this litigation that  could
potentially be subject to the work product privilege, nor did the
protective  order compel production of or even address  any  such
materials.   Additionally, the mere presence of Baxs  counsel  at
depositions  and  in  witness interviews would  not  violate  the
purposes  of  the work product privilege.  Baxs counsel,  through
her   presence,   would  not  have  access  to  DeNardos   mental
impressions,  conclusions, and opinions.   The  protective  order
therefore did not violate the work product privilege.
     C.   Summary  Judgment  Was  Properly Granted  Because  Baxs
          Statements  to  Coworkers Were Privileged  and  DeNardo
          Presented No Evidence that the Privilege Was Abused.
          
          In order for a defamation claim to succeed, a plaintiff
must establish:
          (1) a false and defamatory statement; (2)  an
          unprivileged  publication to a  third  party;
          (3)  fault  amounting at least to negligence;
          and  (4)  the  existence  of  either  per  se
          actionability or special harm.[15]
          
The  superior  court determined that DeNardo failed to  establish
the  second  element, an unprivileged communication, and  granted
summary  judgment in favor of Bax.  The superior  court  reasoned
that  the statements Bax made to coworkers that she felt she  was
being  stalked  were conditionally privileged  as  statements  of
concern about personal safety in the workplace.
          DeNardo   does   not  challenge  the  superior   courts
determination that Baxs statements were privileged.   Rather,  he
raises  a  claim that he was entitled to a jury trial on  whether
Bax  abused the conditional privilege.  But because we have never
directly  addressed the question whether a conditional  privilege
exists  with respect to statements among coworkers about personal
safety in the workplace, we first recognize that such a privilege
applies.
          In the past, we have recognized a conditional privilege
based  on  a  joint  business interest  or  an  employer/employee
relationship  when a statement is made for the  protection  of  a
lawful   business,  professional,  property  or  other  pecuniary
interest. 16  And in Taranto v. North Slope Borough, we found that
speech  on  matters  of  public safety  is  privileged.17   While
communications among coworkers concerning personal safety in  the
workplace  do  not fall squarely within the ambit  of  either  of
these  recognized privileges, our previous acknowledgment of  the
importance of protecting speech regarding business interests  and
          public health and safety lends support to recognition of a
privilege in this case.
          We  will  acknowledge a conditional  privilege  when  a
person  having  a common interest in a particular subject  matter
believes  that  there  is information that  another  sharing  the
common  interest  is  entitled  to  know.18   According  to   the
Restatement  (Second) of Torts, [a]n occasion makes a publication
conditionally privileged if the circumstances induce a correct or
reasonable  belief that (a) there is information that  affects  a
sufficiently  important interest of the publisher,  and  (b)  the
recipients knowledge of the defamatory matter will be of  service
in  the  lawful protection of the interest.19  Where, as here,  a
worker  reveals to coworkers that she is concerned  that  another
coworker might be stalking her, a sufficiently important interest
to  the  statements publisher, her personal safety, is at  stake.
Furthermore,  by alerting coworkers to her fears,  Bax  protected
her  interest  in  personal safety by attuning coworkers  to  the
possibility  that  she  was  the victim  of  dangerous  behavior.
Recognition of a privilege under these circumstances is necessary
in  order  to  facilitate an environment in which employees  feel
safe while performing their duties.
          At  the  summary  judgment stage, it was  Baxs  initial
burden  to establish that she was entitled to prevail as a matter
of law, by demonstrating that a conditional privilege applies and
that she did not abuse the applicable conditional privilege.   In
the trial court, Bax satisfied this initial burden by relying  on
her  federal court affidavit as evidence that she did  not  abuse
the privilege, arguing in her briefing to the trial court:
          In  her  motion,  Ms. Bax presented  evidence
          that  she  did not abuse the privilege.   Ms.
          Baxs affidavit states:  When we [Ms. Bax  and
          Mr.  DeNardo] worked together at ANI  [Alaska
          Newspapers,   Inc.]   there   were    several
          occasions when Mr. DeNardo followed me in his
          vehicle.   I was worried that he was stalking
          me..  .  . Therefore, the proof that Ms.  Bax
          actually saw Mr. DeNardo (or at least thought
          she  did) is her affidavit itself.  Ms.  Baxs
          sworn  affidavit  shows that  her  statements
          were  not  made knowing they were false,  and
          that  her  statements were not  made  with  a
          reckless disregard for the truth.
          
Once  Bax  established  a  prima facie case  that  a  conditional
privilege  applied and that she did not abuse the privilege,  the
burden  shifted  to DeNardo to show that the privilege  had  been
abused.20  We have established that a conditional privilege may be
abused:
          (1)  when there is malice  the publisher  had
               knowledge  or reckless disregard  as  to
               the falsity of the defamatory matter;
               
          (2)  because   the   defamatory   matter   is
               published  for some purpose  other  than
          that for   which   the  particular  privilege
               is given;
               
          (3)  because the publication is made to  some
               person  not  reasonably believed  to  be
               necessary for the accomplishment of  the
               purpose of the particular privilege; or
               
          (4)  because    the   publication    includes
               defamatory    matter   not    reasonably
               believed  to be necessary to  accomplish
               the  purpose  for which the occasion  is
               privileged.[21]
               
          Before  the superior court, DeNardo contended that  Bax
abused  the conditional privilege because she acted with  malice:
knowledge  or  reckless  disregard  as  to  the  falsity  of  her
statements.  Because the actual malice test for determining abuse
of a conditional privilege is subjective, at the summary judgment
stage  the court must determine whether there is a genuine  issue
of  material fact on whether [the defendant] entertained  serious
doubts  as to the truth of the statements.22   We note  that  the
false and defamatory comment that Bax allegedly made was that Bax
was worried that DeNardo was stalking her and not that he was  in
fact  stalking  her.  On summary judgment, DeNardo therefore  has
the  burden  of raising a material issue of fact on the  question
whether  Bax  entertained serious doubts about the truth  of  her
statement that she was subjectively worried DeNardo was  stalking
her.
          In  support  of DeNardos claim that Baxs statement  was
made with malice, DeNardo essentially makes three arguments:  (1)
since Bax did not publish her statement of concern widely enough,
she  was not actually worried that DeNardo was stalking her;  (2)
Bax  had  a motive to lie because she and DeNardo had a workplace
rivalry,  which resulted in DeNardo naming Bax as a defendant  in
his  federal  lawsuit against his employer; and  (3)  during  the
intermission  of DeNardos deposition in the federal lawsuit,  Bax
shared  lunch  with  DeNardo, Parsons, and Harris,  and  [n]obody
displayed  any  fear  and  nobody  objected.   Even  drawing  all
reasonable  inferences  in  favor of DeNardo  as  the  non-moving
party,  these  allegations  fail to  raise  a  genuine  issue  of
material  fact  on  the question whether Bax entertained  serious
doubts  as  to  the truth of her statement that she  subjectively
believed DeNardo was stalking her.
          On  the  issue  of  the  narrow scope  of  publication,
DeNardo  noted in his opposition to Baxs summary judgment  motion
that  Bax  only  spoke to sales manager Brandy Johnson,  and  co-
workers  Holly  Parsons and Annie Harris.   Bax  never  told  her
husband,   children,   family,  neighbors,  Calista   Corporation
management,   Alaska   Newspapers   Inc.   management,   or   any
governmental authority about plaintiffs stalking! He  also  noted
that  [o]ne  day  Bax saw [DeNardo] entering the  Fred  Meyer  on
Dimond  after  work.  She never reported [DeNardo]  was  stalking
her.
          DeNardo  does  not meet his burden by pointing  to  the
          limited scope of Baxs publication.  As DeNardo concedes, Bax
expressed  her concerns solely to her coworkers  those  who  knew
DeNardo  and were in the best position to observe the interaction
between  Bax and DeNardo in the workplace on a daily  basis.   It
would not be reasonable to infer that Bax had serious doubts that
her  statements were true simply because she only  discussed  her
concerns  with those most familiar with her situation  and  those
best able to assist her if DeNardo, a coworker, turned out to  in
fact be stalking her.
          Moreover,   excessive  publication   to   persons   not
reasonably believed to be necessary for the accomplishment of the
purpose of the privilege would constitute abuse of the privilege.23
That  Bax  limited  the  publication  of  her  statement  to  two
coworkers  and  her supervisor  those most suited to  respond  if
Baxs  subjective fear that DeNardo was stalking her  proved  true
supports  the conclusion that her statement was well  within  the
bounds of the common interest privilege in workplace safety,  and
not  that Bax doubted the truth of her statements.  In fact,  the
scope  of  Baxs publication appears to have been so  narrow  that
DeNardo  did not even learn about Baxs concern until he read  her
affidavit  in  the federal lawsuit when Baxs attorney,  for  fear
that  DeNardo  was  carrying  a weapon,  moved  to  relocate  his
deposition to federal court.
          Furthermore,  DeNardo had the opportunity  to  question
witnesses  about  the  basis for Baxs  belief  that  DeNardo  was
stalking  her in order to bolster his claim that she  entertained
doubt as to the truth of her statements, but he declined to  take
advantage  of  that  opportunity when he  failed  to  depose  any
witnesses.   The  mere suggestion that Bax would  have  told  her
husband,  children,  family, friends, neighbors,  etc.,  had  she
really believed DeNardo was stalking her is insufficient to raise
a  genuine  issue  of material fact that she entertained  serious
doubts that she was worried DeNardo was stalking her.
          DeNardo  points to evidence that Bax had  a  motive  to
defame him because she coveted his customer lists and commissions
and  because  he filed an evaluation and notice of discrimination
of  a  hostile  workplace naming Bax as one of the  perpetrators.
DeNardo  also  notes  that he named Bax as  a  plaintiff  in  the
federal  lawsuit filed against his former employers.   Affidavits
attached  to DeNardos opposition to Baxs summary judgment  motion
could  support an inference that there was some ill will  between
DeNardo  and  Bax when they were coworkers at ANI.  For  example,
incorporated into DeNardos brief were interrogatories of  Calista
Corporation  and ANI from the federal lawsuit.  When asked  about
oral or written complaints about DeNardo, Calista Corporation and
ANI responded:
          On a few occasions, Holly Parsons and Joy Bax
          had   disputes   with   plaintiff   [DeNardo]
          regarding who was entitled to commissions  on
          ads  which  were brought to the attention  of
          Brandy  Johnson and/or Chris  Casati.   Holly
          Parsons  and  Joy  Bax  also  discussed  with
          Brandy  Johnson  and/or  Chris  Casati  their
          concerns    about    plaintiffs    unilateral
          declaration  that  certain  sales   prospects
          belonged  to  plaintiff,  and  concerns  that
          plaintiff   attempted  to  take  over   sales
          prospects  that  they were already  pursuing.
          Joy  Bax  expressed concern to Brandy Johnson
          that  plaintiff seemed to listen  in  on  her
          telephone conversations, and listed prospects
          on  his cold call list the week after Ms. Bax
          had  had  those  prospects on her  cold  call
          list.
          
But  evidence  of ill will alone is not sufficient  to  establish
abuse of the privilege. According to the Restatement (Second)  of
Torts  603 cmt. a (1977):
          [A] publication of defamatory matter upon  an
          occasion giving rise to a privilege, if  made
          solely  from spite or ill will, is  an  abuse
          and not a use of the privilege.  However,  if
          the  publication is made for the  purpose  of
          protecting the interest in question, the fact
          that  the publication is inspired in part  by
          resentment  or  indignation at  the  supposed
          misconduct  of  the person defamed  does  not
          constitute an abuse of the privilege.
          
(Emphasis  added.)   In  most  jurisdictions,  evidence  that   a
defendant disliked a plaintiff is insufficient to establish abuse
of the privilege.24  Instead, [i]t must be shown that the improper
motive was predominant.25  For example, the United States Court of
Appeals for the District of Columbia has explained that
          the mere existence of ill will on the part of
          the  publisher  toward  the  subject  of  the
          publication  does not defeat  the  publishers
          privilege   if  the  privilege  is  otherwise
          established  by  the occasion  and  a  proper
          purpose.   Rather,  the court  looks  to  the
          primary  motive  by which  the  defendant  is
          apparently  inspired; and, the fact  that  he
          feels resentment and indignation towards  the
          plaintiff  and enjoys defaming him  will  not
          forfeit  the privilege so long as the primary
          purpose  is to further the interest which  is
          entitled to protection.[26]
          
          Here  DeNardo alleges that Bax harbored ill will toward
him  because  she competed with him for customers and commissions
when they were employees at ANI and because he implicated her  in
a  workplace  discrimination claim at both  ANI  and  in  federal
court.   But  evidence that Bax might have disliked DeNardo  does
not  cast  doubt upon her statement that she feared  DeNardo  was
stalking  her.   DeNardo even concedes that he  saw  Bax  in  the
parking lot of Fred Meyer.27  His allegations of animosity between
himself  and  Bax do not even speak to the question  whether  she
might  have  actually  felt fear when she  encountered  him.   He
therefore  did  not raise a question of fact that Baxs  statement
          was made solely from spite or ill will.28
          It  bears repeating that DeNardos claim is based  on  a
comment  that  Bax  made in an affidavit in an unrelated  federal
case which was filed because DeNardo refused to answer whether he
was carrying a weapon in a deposition.  Bax informed the court:
          When  we  worked together at ANI, there  were
          several  occasions when Mr. DeNardo  followed
          me in his vehicle.  I was worried that he was
          stalking me.  I have expressed concern  about
          this to Holly Parsons and other defendants in
          this  action, as well as to Ms. Rohlf.  Annie
          Harris  has expressed concern to me that  Mr.
          DeNardo  was  loitering around  her  personal
          residence  last  fall.   Holly  Parsons   has
          expressed  similar  concerns.   Based  on  my
          observations  and knowledge  of  Mr.  DeNardo
          while we worked together at ANI, and based on
          these incidents, I am very concerned about my
          personal safety in Mr. DeNardos presence.
          
          Baxs publication was made for the purpose of protecting
the  interest  in question, workplace safety, and  therefore  the
fact  that  the publication might have been inspired in  part  by
resentment or indignation at the supposed misconduct of [DeNardo]
does not constitute an abuse of the privilege.29
          Finally, DeNardo does not meet his burden when he notes
that  during  the  intermission of  DeNardos  deposition  in  the
federal  lawsuit,  Bax  shared lunch with  DeNardo,  Parsons  and
Harris, and [n]obody displayed any fear and nobody objected.  The
fact  that DeNardo and Bax publicly ate lunch together during  an
intermission from his deposition and DeNardo did not perceive Bax
display  any fear does nothing to further his argument  that  she
entertained serious doubts as to the truth of the statements  she
made to coworkers when she and DeNardo were both employed at ANI.
          While DeNardo arguably set forth sufficient evidence to
establish  that  Bax disliked him, he set forth  no  evidence  to
establish that Bax entertained serious doubts as to the truth  of
the statements.30  Because DeNardo has failed to meet his burden,
we  affirm the superior courts decision to grant summary judgment
to Bax.
IV.  CONCLUSION
          For   the  foregoing  reasons,  we  conclude  that  the
superior  courts protective order was not an abuse of discretion.
Because  Baxs statement that she feared DeNardo was stalking  her
was privileged as a statement of concern about personal safety in
the workplace, and because DeNardo has not raised a genuine issue
of  material fact with respect to abuse of the privilege, we also
AFFIRM the superior courts grant of summary judgment to Bax.
EASTAUGH, Justice, dissenting.
          Introduction.   I  respectfully  dissent.   The   court
affirms  Baxs summary judgment because it concludes that  DeNardo
did  not  demonstrate the presence of a genuine issue of material
fact  about  whether  Bax abused the conditional  privilege  that
attached to the statements she made to coworkers.1  I agree  that
Bax  made  out  a  prima facie showing that her  statements  were
conditionally   privileged  because  they  ostensibly   addressed
workplace  or  (perhaps) mutual safety.2  But this  simply  means
that  we must decide whether, as DeNardo argued below and  argues
here,  there  are  genuine  factual disputes  about  whether  Bax
abused,  and  therefore lost, the conditional privilege.   In  my
view,  the  record  reveals at least two genuine  factual  issues
material  to that question: whether she had knowledge or reckless
disregard  as to the falsity of her statements to coworkers  that
DeNardo was following her or stalking her, and whether she  spoke
for a privileged purpose.  The record also raises questions about
whether  the  words she actually spoke to coworkers expressed  an
opinion  rather  than a statement of fact.  We  should  therefore
vacate the summary judgment and remand.
          Controlling  legal principles.  Before we turn  to  the
pertinent  evidence, it is useful to consider the two controlling
legal  principles, one substantive and one procedural,  that  set
the stage for the analysis we should follow.
          The  substantive principle concerns the  scope  of  the
conditional  privilege  that  attaches  to  communications  about
workplace  safety  or  other  matters  of  common   interest.   A
declarant  abuses a conditional privilege if (1)  she  knows  the
defamatory matter to be false or acts in reckless disregard as to
its truth or falsity,3 (2) the defamatory matter is published for
some  purpose other than that for which the particular  privilege
is  given  (e.g.,  solely out of spite  or  ill  will),  (3)  the
publication  is  made  to an unnecessary recipient,  or  (4)  the
publication includes defamatory matter not reasonably believed to
be  necessary to accomplish the purpose for which the occasion is
privileged.4  The first two grounds potentially apply here.
          The  procedural  principle concerns  the  standard  for
granting  and  reviewing  summary judgment  in  Alaska.   Summary
judgment may not be entered and therefore may not be sustained on
appeal  if there is a genuine issue of material fact.5  It  is  a
legal  question whether a genuine issue of material fact  exists;
we  therefore exercise our independent judgment in reviewing  the
facts  and the inferences reasonably drawn from them in favor  of
the  appellant when we decide whether a genuine, material factual
dispute exists.6
          Alaska  law  imposes a low threshold  for  defeating  a
motion for summary judgment.  In Moffatt v. Brown, a libel  case,
we  declined  to adopt the Supreme Courts interpretation  of  the
federal  summary  judgment  standard  announced  in  Anderson  v.
Liberty Lobby, Inc.7  As we explained:
               Instead of adopting the summary judgment
          standard  articulated in Anderson, we  choose
          to  continue  our longstanding interpretation
          of our summary judgment standard as contained
               in  Civil Rule 56(c).  Civil Rule  56(c)
          directs a court to grant a motion for summary
          judgment when there is no genuine issue as to
          any  material fact and . . . the moving party
          is  entitled to judgment as a matter of  law.
          We  decline  to  incorporate  the  applicable
          substantive  evidentiary standard  into  this
          states summary judgment practice [as was done
          in Anderson]. . . .  Rule 56(c) only requires
          a  showing  that a genuine issue of  material
          fact  exists  to  be  litigated,  and  not  a
          showing  that a party will ultimately prevail
          at trial.[8]
          
We  noted  that as a consequence of this holding, it is  somewhat
harder for a libel defendant to win summary judgment in our state
courts,  using  the no genuine issue of material  fact  standard,
than  in federal court.9  Although a non-movant must present more
than  a scintilla of evidence to avoid summary judgment, the non-
movant need only present enough evidence to reasonably tend[]  to
dispute  or  contradict the evidence presented by  the  movant.10
Moreover,  we  have  held that we will not  weigh  evidence  when
reviewing a decision on summary judgment.11  [T]here is a genuine
issue  of  material fact as long as the nonmovant  has  presented
some evidence in support of its legal theory.12
          The   standard  for  granting  and  upholding   summary
judgments  in Alaska is therefore more rigorous than the  federal
standard.13   It does not matter under the Alaska standard  which
party  will  ultimately bear the burden of persuasion should  the
case  go  to trial.14  Whether a defendant has abused a privilege
is a question of fact for the jury unless the facts are such that
only  one  conclusion  can  reasonably  be  drawn.15   Here,  the
question  on summary judgment should be whether DeNardo raised  a
genuine  issue  of  material fact about whether  Bax  abused  the
conditional  privilege;  stated  differently,  the  question   is
whether    the   court   file   contained   evidence   reasonably
contradicting  Baxs claim that her statements were  protected  by
the privilege.16  In this case as it is presented to us, all that
matters  is  whether there is more than a scintilla  of  evidence
demonstrating  the  existence of facts that, if  believed,  would
permit a reasonable person to find that either (1)  Bax knew  her
statements were false, (2) she entertained serious doubts  as  to
their  truth, or (3) her primary purpose was not to  advance  the
identified privileged interest.17
          Circumstantial evidence is normally needed to establish
an  actors purpose or intent, because in the context of  disputed
endeavors, actors often do not expressly admit their true reasons
for  acting.18   Circumstantial evidence  is  the  only  evidence
presently available relevant to Baxs belief and intentions and to
whether summary judgment was correctly entered against DeNardo.
          What  are the sources of the relevant facts?   We  must
look to sources that satisfy Alaska Civil Rule 56(c).  Here these
sources   include  DeNardos  verified  complaint,  his   verified
opposition to Baxs summary judgment motion, Baxs sworn  responses
          to interrogatories and production requests, and the affidavits of
Bax and coworker Holly Parsons.19
          Factual background.  DeNardo filed his defamation  suit
against  Bax and others after Bax served and filed her  April  4,
2001  affidavit in DeNardos then-pending federal action,  DeNardo
v.  Calista Corp., et al., Case No. A00309 Civil.  Baxs affidavit
supported  her  motion  for a protective order  to  require  that
DeNardos  unfinished  deposition  be  completed  at  the  federal
courthouse.  It also revealed to DeNardo that she had  previously
spoken about him to others.  Thus, it stated that she and DeNardo
had  worked  at  ANI for about seven months as advertising  sales
representatives,  and  that  she had  been  concerned  about  her
personal  safety in DeNardos presence and was extremely concerned
because he had refused at his deposition to answer whether he had
brought  a  weapon  to the deposition.  She also  stated  in  her
affidavit that
          when  we  worked together at ANI, there  were
          several  occasions when Mr. DeNardo  followed
          me in his vehicle.  I was worried that he was
          stalking me.  I have expressed concern  about
          this to Holly Parsons and other defendants in
          this action, as well as to [my attorney].
          
          What  Bax  said in her affidavit for the federal  court
was  absolutely  privileged,  as Judge  Gleason  correctly  ruled
below.20   DeNardo does not appear to argue here to the contrary.
He argues instead that what Bax previously told her coworkers was
actionable  because  Bax  abused the conditional  privilege  that
potentially applied.
          What  Bax said (or may have said).  The court fails  to
address  the potentially critical threshold question  about  what
Bax  actually told her coworkers.  Its opinion assumes  that  Bax
told them that she was worried that he was stalking me.21
          The  courts  assumption apparently  derives  from  Baxs
April 4, 2001 affidavit.  But that affidavit states only that Bax
was  worried  that  he was stalking me, not  that  she  had  told
coworkers  that  she was worried that he was  stalking  me.   The
affidavit  only generally describes what she told  coworkers;  it
does not describe the content of any conversation with precision.
          It is unclear from the record exactly what Bax told her
coworkers.22   There  is a difference between  what  a  declarant
thinks  and what a declarant actually declares. What Bax actually
told coworkers is material because the courts opinion assumes she
was  merely expressing to coworkers an opinion (belief,  concern,
worry), rather than a matter of fact.23  It may also be assuming,
among  other things, that DeNardo must demonstrate that Bax  knew
she  was  not actually worried or that she spoke recklessly  when
she supposedly said she was worried, an arguably harder thing  to
establish  than  demonstrating that,  when  she  accused  him  of
stalking  her,  she  either  knew the  accusation  was  false  or
recklessly disregarded its falsity.
             Under    Alaska   law,   defamation   actions    are
constitutionally barred where the allegedly defamatory statements
are expressions of ideas and cannot reasonably be interpreted  as
     stating  actual facts about an individual. 24  The  critical
distinction  is between statements represented as expressions  of
ideas  and  statements  purporting  to  represent  facts.25    To
ascertain  whether a statement is factual, this  court  considers
the  context  of  the statement, including the  speakers  use  of
cautionary or equivocating words.26  If the speaker is expressing
a  subjective  view,  a  speculation, or a  theory,  rather  than
claiming to possess objectively verifiable facts that confirm the
truth  of the statement, the statement is not actionable.27   The
courts  opinion  today seems to analyze the defamation  claim  as
though Baxs statements were not statements of fact.28
          We  must  therefore  start  by  determining  whether  a
factfinder  could reasonably find from the record that  Bax  told
others  as a matter of fact that DeNardo stalked her, or followed
her under circumstances that implied stalking.  Her April 4, 2001
affidavit  is  ambiguous in describing what  she  said  in  2000.
Taken  in isolation, it is possible to read it to imply that  she
told coworkers that she was worried DeNardo was stalking her, and
that she was therefore only expressing a qualified opinion, not a
statement  of  fact.  The courts opinion seems to  rely  on  this
implication  in deciding that it was not error to  grant  summary
judgment to Bax.29
          But  that implication cannot be taken in isolation, and
to do so would improperly take inferences in favor of the movant.
Indeed,  the  words  of the affidavit also reasonably  permit  an
inference  unfavorable to the movant, that she had  expressed  an
unqualified  statement  of  fact to coworkers  that  DeNardo  had
stalked her.
          In  any  event,  we must look beyond the  affidavit  to
other  evidence  before the superior court.  Baxs  statements  in
discovery, supplied to the superior court by DeNardo, contain  no
such  qualification.  An interrogatory asked her to describe  her
communications with others regarding the facts of this case.  Her
sworn answer stated that during conversations when she worked  at
ANI,  she  told Holly Parsons that she had also noticed plaintiff
follow  her  in his vehicle a couple of times, and seemed  to  be
following her into a store on one occasion.  It also stated  that
she also told Ms. Parsons knowing plaintiff had followed her made
her  uncomfortable.   Her answer further  stated  that  [o]n  one
occasion,  Ms. Bax commented to Brandy Johnson, their supervisor,
about  plaintiffs following her . . . .  Likewise, when  DeNardos
discovery  requests  asked Bax what actions Brandy  Johnson  took
after  Bax complained of plaintiffs stalking, Bax responded under
oath that she did not know what, if any, actions were taken after
she mentioned that she had seen DeNardo following her.  (Emphasis
added.)
          For  purposes  of  considering the  propriety  of  Baxs
summary  judgment,  these discovery answers compel  an  inference
that  Bax  unqualifiedly told coworkers that DeNardo had followed
her,  not that she merely told them that she was worried  or  was
concerned or had formed a belief that DeNardo had followed her.
          In my view, the opinions misapprehension about what Bax
said  misdirects  the  remainder of the opinions  analysis,  both
factually and legally.  If this genuine issue is material, as the
          courts treatment implies, we must set aside the summary judgment.
          This  brings  us to the two main factual disputes  that
preclude summary judgment.
          Knowledge  or  reckless  disregard  as  to  falsity  of
statements.   The  first  dispute  is  whether  Bax  knew  of  or
recklessly  disregarded the (possible) falsity of her  statements
that  DeNardo  had followed or stalked her.  DeNardos  defamation
complaint  was  verified.  It is therefore to be  treated  as  an
affidavit.30   It  alleged that Bax and others  had  stated  that
DeNardo  was stalking them or had stalked them.  It then  alleged
that  DeNardo  at  no  time  stalked, followed,  and/or  loitered
outside  defendants  residences.  Although  that  denial  may  be
ambiguous   it  is unclear whether outside defendants  residences
modifies  stalked  or  followed   the  verified  complaint   also
asserted  that  the  defendants (and thus Baxs)  statements  that
DeNardo  had  stalked Bax were false.  DeNardo also expressed  an
unqualified  denial  when  Bax moved for  summary  judgment;  his
verified opposition to her motion stated: Plaintiff never stalked
Joy  Bax  James, Holly Parsons, or Annie Harris.  In response  to
Baxs  assertion  in  her summary judgment motion  that  plaintiff
never  denied  stalking  Bax,  DeNardo  stated  in  his  verified
opposition:  Au contraire, plaintiff specifically denied stalking
in  III  12 in plaintiffs verified complaint.
          Other  circumstances also reasonably permit  inferences
that  DeNardo had not actually stalked or followed Bax  and  that
Bax  did  not  really  think he had.31  This  included  evidence,
contained  in  Baxs  discovery  responses,  that  Bax   had   not
complained  of stalking to anyone but her coworkers.  As  DeNardo
points  out,  her discovery responses revealed that she  did  not
complain  to her husband, her two children (one of whom was  then
about twelve years old), police, or ANI supervisors, and that she
did  not  tell any of them that she thought DeNardo  presented  a
threat  to  workplace safety because he had followed  or  stalked
her.   Bax admitted in discovery that there were never any verbal
or written statements that DeNardo had stalked Bax.  Furthermore,
in  discovery Bax identified no witnesses to stalking and did not
remember the dates of any stalking.  DeNardo also correctly noted
that  Bax,  who  had complained to sales manager Brandy  Johnson,
never  followed up regarding her stalking complaints and did  not
know what, if any, actions were taken by Parsons.
          DeNardos  verified  opposition described  circumstances
that  he  contended  confirmed that Bax  had  spoken  falsely  in
accusing him of stalking her.  Some of these circumstances may be
suspect  because  they  were  not  a  matter  of  personal  prior
knowledge  or  observation to DeNardo.  But to the  extent  these
circumstances are based on DeNardos interpretation  of  what  Bax
and  others  said  in response to discovery and  in  other  court
papers, we may consider them in deciding whether summary judgment
was  entered  erroneously.   These  circumstances,  if  they  are
correct,  tend  to  support a conclusion  that  DeNardo  did  not
actually stalk or follow Bax;32 they consequently also support  a
conclusion that Bax knew that DeNardo had not followed or stalked
her  and  therefore that she was not really worried that  DeNardo
had followed or stalked her.33
          DeNardos  verified  opposition also  described  several
circumstances  about which he had personal knowledge  that  would
reasonably  permit an inference that Bax was not actually  afraid
of  DeNardo  or  that  she  had spoken falsely  to  others  about
DeNardo.   Thus, his opposition asserted that during a  March  8,
2001  intermission  in his deposition, he had shared  lunch  with
Bax,  Parsons,  and  Harris.  About that  event  he  stated  that
[n]obody   displayed   any  fear  and  nobody   objected.    This
circumstance  would  permit (although  certainly  not  compel)  a
finding  that Bax did not, even as of 2001, consider  DeNardo  to
present  a  threat of harm.34  Given the assertion  in  her  2001
affidavit  that she was currently concerned about her  safety  in
DeNardos presence, a shared lunch also seems to raise credibility
questions  about  the  truth  of  the  other  averments  in   her
affidavit.   It thus potentially raises a question about  whether
it  is  true  that in 2000 she was worried about her  safety  and
whether  she was truthful when she allegedly told coworkers  that
DeNardo  had followed or stalked her.   DeNardos opposition  also
asserted that he had filed, when he was her coworker at  ANI,  an
evaluation and notice of discrimination that named Bax as a major
perpetrator in creating a hostile work place.  Baxs knowledge  of
his  complaint is some evidence that would tend to show that  Bax
might  have  had  a  motive   retaliation  to  speak  falsely  or
recklessly.   Likewise, evidence of her alleged interest  in  his
customer lists and commissions would tend to demonstrate  another
motive for knowingly false or reckless speech.
          Purpose of the statements.  This brings us to the  last
factual  dispute:  whether Bax in fact spoke for a  purpose  that
was  privileged.  DeNardo asserted in his verified complaint that
Baxs  statements were made maliciously, and were intended to harm
him.   DeNardo asserts here that Bax was motivated to accuse  him
falsely  by  her  persistent efforts coveting  DeNardos  customer
lists  and  commissions.  He asserts that Bax knew her statements
were  false  and  that she intended to injure  plaintiff  in  his
reputation  and  well-being.  DeNardo claims that  the  malicious
groundlessness of her stalking accusations must be considered  in
context  of  her discovery responses.  He claims that she  admits
she  read DeNardos office evaluation, which DeNardo characterizes
as  detailing  Baxs  activities to  hijack  DeNardos  advertising
accounts   and   create  a  discriminatory   and   hostile   work
environment.  He asserts that it is important that her accusation
took  place after she read DeNardos evaluation accusing  her  and
the  other  employees of account theft and heinous discriminatory
conduct.   DeNardo  asserts  that  Bax  fabricated  her  stalking
accusations to cause DeNardos termination and obtain  his  client
list.35
          The  evidence that potentially supports a finding  that
Bax acted either maliciously or not for the privileged purpose is
not  necessarily compelling, but it is nonetheless sufficient  to
preclude  summary judgment on this issue.36  DeNardo had disputes
with Bax and other coworkers about retaining his accounts.  There
were  mutual  accusations of account piracy.   DeNardos  ten-page
feedback  evaluation of February 11, 2000 asserted that  accounts
had  been distributed in a discriminatory fashion that disfavored
          him and favored Bax.  He asserted in the same document that Bax
had  continually attempted to claim his accounts as her own.  His
June  23, 2000 complaint to ANI management asserted that Bax  and
others  had  purposely joined together to create  a  hostile  and
vindictive   office   atmosphere  focused  against   me.    These
assertions  are not easily documented; the existence of  the  two
documents  and  Baxs apparent admission that she  had  seen  them
reasonably permit an inference that there were reasons why, apart
from  workplace safety, Bax might have told others  that  DeNardo
was following or stalking her.
          Moreover,  the  facts discussed above  that  permit  an
inference  that Bax had falsely accused DeNardo of  stalking  her
also  imply  that her motive for saying those things was  not  to
promote  workplace  safety.   Thus, evidence  that  Bax  had  not
complained  of stalking to her husband, her children, police,  or
ANI  supervisors  and  that she had not told  any  of  them  that
DeNardo  presented a threat to workplace safety  because  he  had
followed  or  stalked her, reasonably implies that  Bax  was  not
motivated  by workplace safety or even personal safety  when  she
spoke.   It  implies instead that she spoke for some  other   and
therefore  unprivileged  and impermissible   purpose.   Likewise,
DeNardo  noted, correctly it seems, that Bax, who had  complained
to  sales manager Brandy Johnson, never followed up regarding her
stalking  complaints and did not know what, if any, actions  were
taken  by  Parsons.  And again, DeNardo contended  that  personal
safety  could  not  have been Baxs genuine reason  for  speaking,
given  that  DeNardo shared lunch with Bax and  other  defendants
during an intermission in his 2001 deposition.  Having lunch with
DeNardo  also seems potentially inconsistent with Baxs  assertion
in  her 2001 affidavit that I am very concerned about my personal
safety  in  Mr.  DeNardos presence.  This  raises  a  credibility
question  that  casts  into  doubt  her  predominant  motive  for
speaking.
          Conclusion.    Any one of these three factual  disputes
precludes  summary judgment and precludes affirmance.  We  should
therefore  vacate  the summary judgment and  remand  for  further
proceedings.

_______________________________
     1      Bax   conditionally  appeals  the   superior   courts
determination that the word stalking is defamatory per  se  given
the  context  in  which  it  was used.   But  in  doing  so,  Bax
misapprehends  the  superior courts decision,  which  reached  no
conclusion  as  to  whether use of the phrase  stalking  in  this
context constituted defamation per se.  The superior court stated
that  because  stalking  is  a  second  degree  misdemeanor,  for
purposes  of . . . summary judgment I would find that [defamation
per  se]  would  not  be  a  basis to accord  the  defendant  the
requested relief.  Because the superior court did not decide  the
question whether Baxs comments constituted defamation per se, and
because  we affirm the superior courts grant of summary  judgment
on  the  ground that Baxs comments were privileged, we  need  not
address Baxs argument.

     2    Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990).

     3     Fuller  v.  City of Homer, 113 P.3d 659,  662  (Alaska
2005).

     4    Briggs v. Newton, 984 P.2d 1113, 1117 (Alaska 1999).

     5     Alakayak  v. British Columbia Packers, Ltd.,  48  P.3d
432, 449 (Alaska 2002).

     6     Schneider  v.  PayN Save Corp., 723 P.2d  619,  624-25
(Alaska 1986).

     7    French v. Jadon, Inc., 911 P.2d 20, 33 (Alaska 1996).

     8    Id.

     9     Taranto  v. North Slope Borough, 992 P.2d  1111,  1113
(Alaska 1999).

     10    Alaska R. Civ. P. 26(c).

     11    Id.

     12    Id.

     13     Walden  v. Dept of Transp., 27 P.3d 297, 308  (Alaska
2001).

     14    752 P.2d 999, 1005 (Alaska 1988) (citing Alaska R. Civ.
P.  26(b)(3);  8  C.  Wright  &  A. Miller,  Federal  Practice  &
Procedure   2024, at 196-97 (1970); 4 J. Moore,  J.  Lucas  &  G.
Grotheer, Moores Federal Practice  26.64[1]-[4], at 26-348 to 26-
389).

     15     French, 911 P.2d at 32; see also Restatement (Second)
of Torts  558 (1977).

     16     Briggs, 984 P.2d at 1121 (quoting Schneider, 723 P.2d
at 623 (internal citations omitted)).

     17    992 P.2d at 1115.

     18     Schneider, 723 P.2d at 623-24 (citing  Lull  v.  Wick
Constr.  Co.,  614  P.2d 321 (Alaska 1980))  (internal  quotation
marks omitted).

     19    Restatement (Second) of Torts  594 (1977).

     20     See  Briggs,  984  P.2d at 1121 (Ordinarily,  once  a
defendant  establishes the existence of a privilege the plaintiff
has the burden of showing that it has been abused.).

     21     Schneider, 723 P.2d at 624-25 (adopting standards set
forth in Restatement (Second) of Torts  599 cmt. a (1977)).

     22     Mount Juneau Enters., Inc. v. Juneau Empire, 891 P.2d
829, 834 (Alaska 1995).

     23     Schneider, 723 P.2d at 624-25 (adopting standards set
forth in Restatement (Second) of Torts  599 cmt. a (1977)).

     24    Robert D. Sack, Sack on Defamation: Libel, Slander, and
Related Problems 9.3.1 (2004).

     25    Id.

     26     Novecon Ltd. v. Bulgarian-American Enter.  Fund,  190
F.3d  556, 567 (C.A.D.C. 1999) (internal citations omitted);  see
also  Liberman v. Gelstein, 605 N.E.2d 344, 350 (N.Y.  1992)  (If
the  defendants  statements were made  to  further  the  interest
protected  by  the privilege, it matters not that defendant  also
despised plaintiff.).

     27    We are in accord with the superior courts assessment of
this incident:

          [T]here  has  been  nothing  that  has   been
          submitted  in  my reading of  the  record  to
          support a finding that Mr. DeNardo has  shown
          that  Ms. Bax in making these statements  was
          making   them  with  knowledge  or   reckless
          disregard  as  to  their  apparent   falsity.
          Which is to say that I hear an acknowledgment
          by  Mr.  DeNardo that in point of fact  these
          folks  were walking out to their cars at  the
          same  time  and  did have an encounter  at  a
          shopping mall and Ms. Bax perceived that in a
          way  that  Mr.  DeNardo clearly  takes  issue
          with,  but  he  . . . has not  presented  any
          evidence to support a finding that there  was
          knowledge or reckless disregard by Ms. Bax in
          making  these  statements to  her  co-workers
          regarding  issues of safety at the workplace,
          which  is an issue of great concern  to  many
          people  and an appropriate issue to bring  up
          to ones co-workers.
          
     28    See Restatement (Second) of Torts  603 cmt. a (1977).

     29    See id.

     30    See Mount Juneau Enters., Inc., 891 P.2d at 834.
          
1    Slip Op. at 19-20.

     2    See Taranto v. North Slope Borough, 992 P.2d 1111, 1115
(Alaska 1999) (holding that speech on matters of public safety is
conditionally  privileged); Restatement (Second)  of  Torts   594
(detailing   conditional  privilege   for   speech   related   to
sufficiently important interest of publisher).

     3     A  conditionally  privileged  declarant  traditionally
abused the privilege if she did not believe the statement  to  be
true  or lacked reasonable grounds for so believing.  As a result
of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1972), in which the
Supreme  Court  held  that  strict  liability  in  defamation  is
unconstitutional, the traditional conditional privilege  standard
was modified: mere negligence as to falsity, being required [now]
for all actions of defamation, is no longer treated as sufficient
to   constitute  abuse  of  a  conditional  privilege.    Instead
knowledge  or  reckless disregard as to falsity is necessary  for
this  purpose.  Restatement (Second) of Torts  599 cmt. d (1977).
This  courts  precedents  have not been entirely  clear  on  this
point.   See Briggs v. Newton, 984 P.2d 1113, 1121 (Alaska  1995)
(determining  whether  declarant  abused  privilege  by  deciding
whether  he had reasonable belief in truth of statement);  accord
Schneider v. PayN Save, 723 P.2d 619, 625 (Alaska 1986).

     4     Schneider,  723 P.2d at 62425 (adopting standards  set
forth in Restatement (Second) of Torts  599 cmt. a (1977)).

     5     See  Alaska  R.  Civ. P. 56(c);  Alakayak  v.  British
Columbia Packers, Ltd., 48 P.3d 432, 447 (Alaska 2002).

     6    Alakayak, 48 P.3d at 447.

     7     Moffatt  v.  Brown, 751 P.2d 939,  943  (Alaska  1988)
(discussing  Anderson  v.  Liberty  Lobby,  Inc.,  477  U.S.  242
(1986)).

8      Id.  at  94344  (internal  citations  omitted);  see  also
Alakayak, 48 P.3d at 449.

     9    Moffatt, 751 P.2d at 944.

     10   Alakayak, 48 P.3d at 449.

     11   Id.

     12    Id.  (emphasis in original); see also Meyer v.  State,
Dept  of  Revenue, Child Support Enforcement Div. ex rel. N.G.T.,
994  P.2d  365, 367 (Alaska 1999) (holding that putative  fathers
sworn denial of paternity prevented summary judgment, even though
movant   had   presented  strong  scientific   evidence   showing
paternity,  because any evidence sufficient to  raise  a  genuine
issue  of material fact precludes a summary finding of paternity)
(internal quotation marks omitted) (emphasis in original).

     13    Bax  does  not  argue  that we  should  jettison  that
standard in favor of the prevailing federal standard so  we  have
no occasion here to reconsider the appropriate standard.

     14    See  Ball v. Birch, Horton, Bittner & Cherot, 58  P.3d
481, 485 (Alaska 2002).

     15    See Schneider, 723 P.2d at 624.

     16   See Lull v. Wick Constr. Co., 614 P.2d 321, 325 (Alaska
1980)  (holding  that summary judgment was appropriately  granted
because  plaintiff  had  not established triable  issue  of  fact
regarding whether declarant had abused conditional privilege).

     17    The  courts  opinion states the standard  as  follows:
DeNardo . . . has the burden of raising a material issue of  fact
on  the question whether Bax entertained serious doubts about the
truth  of her statement that she was subjectively worried DeNardo
was  stalking  her.  Slip Op. at 14.  That would be  the  correct
standard if the court were only required to consider whether  Bax
abused  the  privilege by acting with actual malice   i.e.,  with
knowledge  or  reckless  disregard  as  to  the  falsity  of  the
defamatory  statements.  See Schneider, 723 P.2d at 624;  Briggs,
984 P.2d at 1121.  But the opinion then considers whether DeNardo
raised  an  issue  about  whether Bax  abused  the  privilege  by
publishing the defamatory matter for some purpose other than that
for  which the privilege is given (i.e., solely for spite or  ill
will).   Slip  Op.  at 1518.  See Schneider,  723  P.2d  at  624;
Restatement  (Second) of Torts  603 cmt. a (1977).  The  opinions
recitation of the standard is apparently too narrow.

     18    See  Kinzel v. Discovery Drilling, Inc., 93 P.3d  427,
43435  (Alaska 2004); see also Indus. Commercial Elec.,  Inc.  v.
McLees,   101   P.3d  593,  600  (Alaska  2004)   (holding   that
circumstantial  evidence  in  record  permitted  inference   that
appellees   alleged   misrepresentation   in   contracting    was
fraudulent);  Phillips  v. Mukluk Freightlines,  Inc.,  721  P.2d
1143,  1145  (Alaska 1986) (holding that circumstantial  evidence
presented in expert witnesss affidavit sufficed to raise  genuine
issue  of material fact regarding whether appellee acted  in  bad
faith).

19     Verified   pleadings  and  documents  are  equivalent   to
affidavits.   See  Bennett v. Weimar, 975 P.2d 691,  695  (Alaska
1999)  (citing Smith v. Thompson, 923 P.2d 101, 102  n.1  (Alaska
1996)).

     20    Baxs assertions that DeNardo was potentially dangerous
did not convince the federal court.  United States District Judge
H. Russel Holland denied the protective order motion, and stated:

          The  court  has managed litigation  involving
          Mr.  DeNardo for approximately fifteen years.
          He  has been involved in some thirty cases in
          this court.  The court has never had a report
          of Mr. DeNardo behaving violently or having a
          weapon at any time in connection with any  of
          these  proceedings.  The court is unpersuaded
          that there is any reason to believe that  Mr.
          DeNardo  would  attempt  to  harm  anyone  in
          connection  with  this  case.   If,   as   is
          suggested,  any of the parties  or  witnesses
          believe  that  Mr. DeNardo has been  stalking
          them,  that  is  a matter for  the  Anchorage
          Police Department to look into.
          
          Because  the order denying Baxs motion is  not  in  the
appellate record and was not before the superior court, I do  not
rely on its entry or text to demonstrate error here.  I refer  to
it  only to temper any premature conclusions a reader might  draw
about  DeNardo based on the repetition in the courts opinion  and
in  my  dissent  of  Baxs comments about DeNardo.   A  court  may
properly  rely  on the orders result as an exercise  in  judicial
notice, and on its text under the public records exception to the
hearsay  rule.   Hess v. State, 20 P.3d 1121, 1127 (Alaska  2001)
(The  evidence reliably reflects the fact of acquittal.  A  court
thus  may take judicial notice of the fact of an acquittal  under
Alaska Rule of Evidence 201(b)(2), as implicitly requested  here.
Or  it may allow evidence of the acquittal to be introduced as  a
hearsay  exception under Alaska Rule of Evidence  803(8)  because
the acquittal is a matter of public record.).

     21    Slip Op. at 2, 14 (quoting part of Baxs April 4,  2001
affidavit).

     22    The  superior  court  did not attempt  to  quote  Baxs
declarations;  in granting Baxs motion for summary judgment,  the
court stated that it found that Bax, to the extent that she  made
comments to co-workers that she felt she was being followed, that
even  if  she used the word that she felt she was being  stalked,
that those comments . . . were subject to privilege.

     23     Thus,  the  courts  opinion  frequently  quotes  Baxs
affidavit, or characterizes her statements, as expressing  worry,
concern, fear, or a belief that DeNardo was stalking her.  Id. at
2,  3, 10, 12, 13-14, 15, 17, 18-19, 19-20.  The opinion fails to
distinguish  between what Bax stated in her 2001 affidavit  about
what  she  believed  and  what she  may  have  actually  said  to
coworkers.   See id. at 1-2 (DeNardo based his claim on  comments
made by Bax to coworkers that she was worried that [DeNardo]  was
stalking  [her]. ); id. at 10 (The superior court  reasoned  that
the  statements Bax made to coworkers that she felt she was being
stalked  were conditionally privileged as statements  of  concern
about  personal safety in the workplace.); id. at 12  (Where,  as
here,  a  worker reveals to coworkers that she is concerned  that
another  coworker might be stalking her, a sufficiently important
interest to the statements publisher, her personal safety, is  at
stake.);  id.  at  13-14 (We note that the false  and  defamatory
comment  that  Bax allegedly made was that Bax was  worried  that
DeNardo  was  stalking her and not that he was in  fact  stalking
her.);  id.  at  15  (DeNardo  had the  opportunity  to  question
witnesses  about  the  basis for Baxs  belief  that  DeNardo  was
stalking  her  . . . .); id. at 17 (But evidence that  Bax  might
have disliked DeNardo does not cast doubt upon her statement that
she feared DeNardo was stalking her.).

24     Sands  v.  Living  Word  Fellowship,  34  P.3d  955,   960
(Alaska 2001) (quoting Milkovich v. Lorain Journal Co., 497  U.S.
1,  20  (1990)); see also Moffatt, 751 P.2d at 945 (holding  that
declarants use of word horrible to describe medical procedure was
simply  the opinion of the author and was therefore protected  by
First Amendment).

     25    Kinzel,  93  P.3d at 439; see also id. at  43940  n.50
(noting  that a distinction should be made between an evaluative-
type opinion and the deductive type, the latter actually imputing
facts  that  can be proven false and thus potentially actionable)
(quoting W. Page Keeton, et al., Prosser and Keeton on the Law of
Torts  113A, at 81415 (5th ed. 1984)).

     26    Kinzel, 93 P.3d at 440 (considering whether  prefatory
phrase  I  wonder  made allegedly defamatory statement  protected
conjecture);  see  also Haynes v. Alred A. Knopf,  Inc.,  8  F.3d
1222,  1227 (7th Cir. 1993), cited in Kinzel, 93 P.3d at  440  (A
statement  of fact is not shielded from an action for  defamation
by  being  prefaced with the words in my opinion, but  if  it  is
plain that the speaker is expressing a subjective view . . .  the
statement is not actionable.).

     27   Kinzel, 93 P.3d at 440.

     28   The courts opinion does not, however, directly consider
whether Baxs statements were statements of fact or expressions of
ideas.  And the courts opinion suggests that the statements  were
Baxs  opinions, but does not discuss whether the statements  were
protected by the First Amendment.  Thus the courts opinion blends
the  initial  phase of the defamation analysis  (i.e.,  were  the
statements  defamatory  and actionable)  with  the  abuse-of-the-
privilege  analysis  (i.e., was there malice or  publication  for
some other purpose).  The same mistake contributed to the summary
judgment  order (which was entered in reliance on our opinion  in
Briggs v. Newton, 984 P.2d 1113, 1121 (Alaska 1995)).

     29    Thus,  the opinion frequently refers to the  affidavit
and characterizes Baxs statements to coworkers in terms of worry,
concern,  fear,or belief.  Slip Op. at 2, 3, 10, 12,  13-14,  15,
17,  18-19, 19-20.  These characterizations all appear to  derive
from how Baxs affidavit impliedly described her statements.

     30    See Bennett v. Weimar, 975 P.2d 691, 695 (Alaska 1999)
(citing Smith v. Thompson, 923 P.2d 101, 102 n.1 (Alaska 1996)).

     31    Because there is no direct evidence of Baxs belief  in
the truthfulness of her allegedly defamatory statements, DeNardos
most   viable  approach  to  showing  abuse  of  the  conditional
privilege  on malice grounds is to convince the fact finder  that
(a)  Baxs statements that DeNardo stalked her were false and that
(b)  Bax  therefore must have known her belief that  DeNardo  had
stalked her was false.

     32   The superior court itself declined to grant Bax summary
judgment  on  the  falsity prong of her  defamation  claim.   The
superior  court noted that DeNardo had raised a triable issue  of
fact  regarding whether Baxs claim that DeNardo followed her  was
false.

     33    Thus, even if Bax actually did tell coworkers that she
was   worried   that  DeNardo  stalked  her,  DeNardo   presented
sufficient evidence to put into genuine dispute whether  she  was
actually worried that he stalked her.

34    Such  a  finding on remand would also be supported  by  the
fact  that  the  federal judge who denied Baxs  protective  order
motion apparently did not consider DeNardo to present a threat of
harm, either.

     35    Likewise to similar effect, DeNardo asserts on  appeal
that  Bax  deliberately  made  her  per  se  defamatory  stalking
accusations  in  order  to obtain DeNardos advertising  accounts,
destroy   his   credibility,  and  hide   the   extent   of   her
discriminatory  conduct  memorialized in  DeNardos  case  against
Calista and Alaska Newspapers, Inc.

     36    In contrast to the impression the courts opinion might
leave,  Slip  Op.  at 15-18, DeNardo does not have  to  prove  on
summary judgment that Baxs predominant purpose was spite  or  ill
will  (or  some other non-privileged purpose), but only needs  to
raise  a genuine issue such that reasonable jurors could disagree
over  Baxs predominant purpose.  See Hatten v. Union Oil  Co.  of
Cal.,  778  P.2d  1150, 1153 (Alaska 1989)  (holding  that  where
determining  employers  predominant motive  for  firing  employee
involved balancing evidence and weighing credibility, question of
predominant motive should have been decided by trier of fact).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC