Johnigan v. Elevated Resources CA1/1

Filed 9/5/25 Johnigan v. Elevated Resources CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

RONALD JOHNIGAN,

Plaintiff and Appellant,

A170972

v.

ELEVATED RESOURCES, INC., (Marin County

Super. Ct. No. CV0000720)

Defendant and Respondent.

Plaintiff Ronald Johnigan appeals from an order dismissing his first

amended complaint following three unsuccessful applications for entry of a

default judgment against defendant Elevated Resources, Inc. (Elevated).

Johnigan challenges the trial court’s conclusions that he did not assert a

valid cause of action against Elevated and that he failed to prove up his

damages. We agree with the trial court that Johnigan failed to state a cause

of action against Elevated. We therefore affirm.

I. BACKGROUND

This action arose from the termination of Johnigan’s employment with

VWR Global Holdings, Inc., doing business as Avantor (Avantor). Volt

Workforce Solutions (Volt), a staffing agency, assigned Johnigan to work for

Avantor as a technician. After Avantor terminated Johnigan’s employment,

he filed an action in the superior court against Avantor and Volt for wrongful

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termination. He alleged that Avantor terminated him in retaliation for his

reporting of another employee’s harassment of him. The parties submitted

their dispute to binding arbitration, where the arbitrator eventually granted

Volt and Avantor’s motion for summary judgment.

Johnigan then initiated this defamation action against Avantor, two

Avantor employees, and Elevated, “a third party Avantor contracts to find

workers.” According to the complaint’s allegations, Avantor’s site supervisor,

Andrew Koo, and other Avantor employees made defamatory statements

about Johnigan that resulted in his termination. The complaint further

alleged that after Koo decided to terminate Johnigan, Elevated “sent Avantor

a document saying [Johnigan] was let go for ‘misconduct,’ ” a statement that

Johnigan claimed was “based on information provided by Defendant Koo.”

In November 2023, Johnigan filed a request for entry of Elevated’s

default and a default judgment for emotional distress damages totaling

$750,000. The clerk entered default against Elevated in November 2023, but

the trial court denied Johnigan’s request for entry of judgment against

Elevated because he failed to provide evidence in support of the damages he

sought.

A few months later, Johnigan dismissed the Avantor defendants from

the action after the trial court sustained their demurrer with leave to amend.

Johnigan then filed another request for entry of a default judgment

against Elevated, this time with declarations from himself and his attorney.

The trial court again denied his request for a default judgment. The court

concluded that Johnigan’s declaration did not provide sufficient evidence of

his claimed damages. It further concluded that Elevated’s allegedly

defamatory statement was conditionally privileged under Civil Code section

47, subdivision (c), which codifies the “common interest privilege,” and

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Johnigan did not present evidence of malice to defeat the privilege. (See

Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1196.)

Johnigan thereafter filed the operative first amended complaint (FAC).

The FAC contained substantially the same allegations as those set forth in

the original complaint.

In May 2024, Johnigan filed a third application for entry of a default

judgment against Elevated, which was supported by his declaration. The

trial court denied the request for entry of a default judgment.1 It reasoned

that the FAC did not allege that Elevated’s allegedly defamatory statement

was false or that Elevated knew it was false. The court further concluded

that the statement was protected by the common interest privilege, and the

FAC did not sufficiently allege malice. Finally, the court concluded that

Johnigan failed to prove his claimed damages. The court dismissed the

action.2

II. DISCUSSION

Johnigan argues that the trial court erred in denying his application for

entry of a default judgment against Elevated for four reasons. First, he

contends the court had a mandatory duty to enter a default judgment against

Elevated, and therefore it applied an incorrect standard in denying his

application. Second, he argues that the FAC states a cause of action against

1 We grant Johnigan’s request for judicial notice of the trial court’s

order denying his third application for entry of a default judgment and of his

notice of appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

2 We treat the trial court’s order denying entry of default judgment and

dismissing the action as an appealable judgment. The order was in writing,

signed by the court, and filed in the action. (See Code Civ. Proc., § 581d;

Chauncey v. Niems (1986) 182 Cal.App.3d 967, 971, disagreed with on other

grounds in Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 637–638.)

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Elevated because the well-pleaded allegations therein support a defamation

claim and negate the common interest privilege. Third, he asserts the record

shows that the court erroneously believed it had no discretion to award him

damages in an amount less than what he prayed for in his complaint.

Finally, Johnigan claims the court abused its discretion when it failed to

award him “presumed” damages for defamation per se. We find Johnigan’s

failure to allege sufficient facts to defeat the common interest privilege

dispositive and therefore affirm.

A. General Principles Governing Default Judgments

Upon the plaintiff’s application, the trial court is authorized to enter a

judgment in an action when the defendant has failed to answer the complaint

and the clerk has entered the defendant’s default. (Code Civ. Proc., § 585,

subd. (b).) “Generally, a defendant in default ‘confesses the material

allegations of the complaint.’ ” (Los Defensores, Inc. v. Gomez (2014)

223 Cal.App.4th 377, 392, quoting Taliaferro v. Davis (1963) 216 Cal.App.2d

398, 408.) Thus, “ ‘ “the defendant’s failure to answer has the same effect as

an express admission of the matters well pleaded in the complaint.” ’ ” (Kim

v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281, quoting Steven

M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823,

italics omitted.) For that reason, those allegations “are treated as true for

purposes of obtaining a default judgment.” (Kim, at p. 281.)

The rule that a defendant admits the material allegations of the

complaint upon its default does not apply to matters not well-pleaded. (Vasey

v. California Dance Co. (1977) 70 Cal.App.3d 742, 749; accord, Grappo v.

McMills (2017) 11 Cal.App.5th 996, 1015, disagreed with on other grounds in

First American Title Ins. Co. v. Banerjee (2022) 87 Cal.App.5th 37, 46.) Thus,

when the complaint does not state a cause of action, no judgment against the

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defendant can rest on such a complaint because “ ‘[a] defendant who fails to

answer admits only facts that are well pleaded.’ ” (Falahati v. Kondo (2005)

127 Cal.App.4th 823, 829.) Plaintiffs in default prove-up proceedings must

establish a prima facie case of matters not admitted by the complaint.

(Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361–362, 364–365; Vasey,

at p. 749.)

Therefore, contrary to Johnigan’s first argument in his appellate brief,

trial courts do not have a mandatory duty to enter a judgment in favor of the

plaintiff upon the defendant’s default where the complaint’s allegations do

not state a cause of action against the defendant. (Los Defensores, Inc. v.

Gomez, supra, 223 Cal.App.4th at p. 392.)

We review the FAC de novo to determine whether it states a cause of

action against Elevated for defamation. (Lagrisola v. North American

Financial Corp. (2023) 96 Cal.App.5th 1178, 1186.) In doing so, we focus on

Elevated’s alleged statement that Johnigan “was let go for ‘misconduct,’ ” as

it is the only statement in the FAC that is attributed to Elevated.3 (See Kahn

v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5 [the words constituting the

alleged defamation “must be specifically identified, if not pleaded verbatim in

the complaint”].) According to the FAC, Elevated published the statement to

Avantor based on “information” provided by Koo, Avantor’s site supervisor.

B. Common Interest Privilege

The trial court concluded, based on the FAC’s allegations, that

Elevated’s alleged publication was privileged under Civil Code section 47,

subdivision (c), which codifies the “common interest privilege.” (Lundquist v.

3 The FAC also alleges that Elevated “republished the defamation” to

Volt but does not specify the substance of that defamation.

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Reusser, supra, 7 Cal.4th at p. 1196.) The common interest privilege is

“recognized where the communicator and the recipient have a common

interest and the communication is of a kind reasonably calculated to protect

or further that interest.” (Deaile v. General Telephone Co. of California

(1974) 40 Cal.App.3d 841, 846.) The interest protected must be of a “ ‘private

or pecuniary’ ” interest, and the communication must have been in the course

of a “ ‘contractual, business or similar relationship.’ ” (Kashian v. Harriman

(2002) 98 Cal.App.4th 892, 914, called into doubt on another ground in People

ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 961, fn. 5.)

“[A] defendant who makes a statement to others on a matter of common

interest is immunized from liability for defamation so long as the statement

is made ‘without malice.’ ” (Lundquist, at p. 1196.)

Johnigan does not challenge the trial court’s finding that the FAC

establishes that Elevated and Avantor shared a common interest in

Elevated’s statement about his termination for purposes of the common

interest privilege. As the court noted, the FAC alleged that Elevated was

hired by Avantor “ ‘to find workers,’ ” and thus they had a common interest in

finding and retaining suitable employees for Avantor. (See King v. United

Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440 [“Parties in a business or

contractual relationship have the requisite ‘common interest’ for the privilege

to apply.”].) Since the subject of Elevated’s communication to Avantor

concerned Johnigan’s fitness as an employee, as reported to Elevated by Koo,

it involved the type of information that Avantor would be interested in and

that was within the scope of Avantor’s relationship with Elevated. (See

Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986)

180 Cal.App.3d 985, 995 [“Communications made in a commercial setting

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

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the qualified privilege for communications to interested persons.”]; McGrory

v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538 [the

common interest privilege “has been determined to apply to statements by

management and coworkers to other coworkers explaining why an employer

disciplined an employee”].) Johnigan has not presented any reason for us to

conclude that these allegations were insufficient to establish the existence of

the common interest privilege.4

Instead, citing the rule that a conditional privilege is an affirmative

defense, Johnigan argues that the issue of whether Elevated’s communication

was protected by the common interest privilege was “inapplicable” because

Elevated never raised the privilege as a defense. He further contends that

the well-pleaded allegations in the FAC support a finding that Elevated

published the allegedly defamatory statement with malice.

While it is true, generally speaking, that a defendant must assert the

common interest privilege as an affirmative defense in a responsive pleading,

an exception to this rule exists where the existence of the privilege appears

on the face of the complaint. (Locke v. Mitchell (1936) 7 Cal.2d 599, 602;

accord, Tschirky v. Superior Court (1981) 124 Cal.App.3d 534, 538.) In such

cases, the complaint must contain affirmative allegations of malice to state a

cause of action for defamation. (Tschirky, at pp. 538–539.)

Since the common interest privilege appears on the face of the FAC in

this case, Johnigan was required to allege that Elevated made the

defamatory statement with malice to state a cause of action for defamation

against Elevated. “ ‘ “The malice necessary to defeat a qualified privilege is

4 “Issues not raised in the appellant’s opening brief are deemed waived

or abandoned.” (See Aptos Council v. County of Santa Cruz (2017)

10 Cal.App.5th 266, 296, fn. 7.)

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‘actual malice’ which is established by a showing that the publication was

motivated by hatred or ill will towards the plaintiff or by a showing that the

defendant lacked reasonable grounds for belief in the truth of the publication

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

(Lundquist v. Reusser, supra, 7 Cal.4th at p. 1213, italics omitted, quoting

Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 936.)

Johnigan failed to adequately allege malice. The FAC alleges in part

that the basis of defendants’ malice was “to justify the illegal termination of

Plaintiff.” The issue of wrongful termination, however, was resolved against

Johnigan in the arbitration and cannot be relitigated here. The FAC

otherwise contains conclusory allegations of malice. “Mere allegations of

malice are not sufficient [citations]; actual facts must be alleged, unless they

are apparent from the statement itself.” (Tschirky v. Superior Court, supra,

124 Cal.App.3d at pp. 538–539; see Martin v. Kearney (1975) 51 Cal.App.3d

309, 312 [“Actual facts of malice must be alleged. . . .”].) For example, the

FAC alleges that defendants “ha[d] no reasonable basis” to believe the

defamatory statements, but no specific facts are alleged showing that

Elevated lacked reasonable grounds for belief in the truth of the information

Koo provided it about Johnigan, and malice is not apparent from the

statement itself. While the FAC alleges that defendants failed to investigate

the truth of the defamatory statements, “[t]he failure to conduct a thorough

and objective investigation, standing alone, does not prove actual malice.”

(Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 258.)

Johnigan’s pleading deficiencies are even more apparent when read in

context. (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1153

[courts must “ ‘give the complaint a reasonable interpretation, reading it as a

whole and its parts in their context’ ”].) The FAC alleges that Elevated is a

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“third party” contractor. There are no allegations explaining how a third

party like Elevated would know, or have a reason to suspect, that information

provided by an Avantor employee about another Avantor employee was false

or “exaggerated.” (See Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86,

97 [allegations that “PayPal knew the [third party Web] site was an illegal

lottery” did not “sufficiently allege PayPal’s . . . knowledge of the alleged

illegal lottery”]; Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th

919, 924 [“conclusions of fact” are not well-pleaded allegations].) Nor are

there allegations showing that Elevated played a role in Johnigan’s

termination or had some other reason to harbor ill will towards him.

Johnigan was therefore required to establish malice with prima facie

evidence. No evidence of malice on the part of Elevated was presented with

Johnigan’s default judgment application. Johnigan’s declaration simply

repeats some of the FAC’s allegations regarding Elevated. Without evidence

of malice, Johnigan failed to state a cause of action against Elevated.

Therefore, he was not entitled to a judgment for damages.

III. DISPOSITION

The order denying entry of default judgment and dismissing the action

is affirmed.

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_________________________

Langhorne Wilson, J.

We concur:

_________________________

Humes, P.J.

_________________________

Smiley, J.

A170972, Johnigan v. Elevated Resources Inc.

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