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Edenbaum v. Dalton11/6/2002
2d 549, 554 [" 'shady practitioners' "]; Lauderback v. American Broadcasting Companies (8th Cir. 1984) 741 F.2d 193, 195-198 ["crook"].) In Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 725, the court found no cause of action for statements in a high school newspaper that the plaintiff was " 'the worst teacher at FHS' " and " 'a babbler.' " The newspaper published "an expression of subjective judgment" in rating the teacher (ibid.), and the epithet " 'babbler' " could be reasonably understood only "as a form of exaggerated expression conveying the student-speaker's disapproval of plaintiff's teaching or speaking style." (Id. at pp.725, 726.) Similarly, in Jensen v. Hewlett-Packard Co., supra, 14 Cal.App.4th at pages 965 and 970 to 971, the court found that statements made in an employee's evaluation were not actionable as defamation because the statements were simply one manager's assessment of the employee's work habits, skills, and level of work. ". . . nless an employer's performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior [citation], it cannot support a cause of action for libel. This is true even when the employer's perceptions about an employee's efforts, attitude, performance, potential or worth to the enterprise are objectively wrong and cannot be supported by reference to concrete, provable facts." (Id. at p. 965.)
Dalton's comment to Zirino reflected his subjective view that Edenbaum would not handle the cases as well as he had. This is not a fact that is capable of objective proof; it was merely an expression of Dalton's opinion. Moreover, Edenbaum has not shown the remark made to Zirino caused him any damages. Zirino testified she already had a negative opinion of Edenbaum's work. Resultant damage is an element of slander. (Civ. Code, ยง 46.) Summary judgment was correctly granted on this cause of action.
II. Denial of Second Continuance Request
Edenbaum contends the trial court erred in denying his second request for a continuance after the discovery referee ruled the attorney-client privilege inapplicable in the depositions of the clients that Kay and Edenbaum shared. The contention is without merit.
Code of Civil Procedure section 437c, subdivision (h) provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just." It is not sufficient that a declaration in support of such a continuance indicate further discovery or investigation is contemplated; it must show " 'facts essential to justify opposition may exist.' " (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548; see also Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326.) Thus, the plaintiff must show "that the . . . discovery requested could reasonably lead to evidence necessary to refute" the defendants' evidence. (Scott v. CIBA Vision Corp., supra, at p. 326.) If the plaintiff does not make the required showing by affidavit, a continuance is not mandatory. (Id. at pp. 315, 326; Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) When a continuance is not mandatory, we review the court's ruling for abuse of discretion. (Scott v. CIBA Vision Corp., supra, 38 Cal.App.4th at p. 326; Mahoney v. Southland Mental Health Associates Medical Group, supra, 223 Cal.App.3d at p. 170.)
The declaration of
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