Gus Anaya v. Nissan North America, Inc. , 399 F. App'x 275 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GUS ANAYA, No. 09-16722
Plaintiff - Appellant, D.C. No. 2:08-cv-01087-PMP-RJJ
v.
MEMORANDUM *
NISSAN NORTH AMERICA, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted October 7, 2010 **
San Francisco, California
Before: THOMPSON, SILVERMAN and McKEOWN, Circuit Judges.
Gus Anaya appeals the district court’s order granting summary judgment to
the defendant, Nissan North America, Inc. (“Nissan”), in this diversity suit for
defamation and intentional interference with prospective economic advantage. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review the district court’s grant of summary judgment de novo and may affirm on
any ground supported by the record. Dietrich v. John Ascuaga’s Nugget, 548 F.3d
892, 896 (9th Cir. 2008). Construing the record in the light most favorable to
Anaya and making reasonable inferences on his behalf, we affirm.
Anaya argues Nissan defamed him during a telephone conversation in which
a Nissan employee allegedly told Anaya’s employer, United Nissan (“United”),
that Anaya was a “troublemaker,” would be “disruptive,” and that United should
not promote him to a management position. The district court correctly held that
this was a single statement of evaluative opinion which is not actionable. See
Lubin v. Kunin, 17 P.3d 422, 426 (Nev. 2001) (per curiam).
Anaya also challenges the district court’s conclusion that the relevant
statutes of limitations bar his claim for intentional interference with prospective
economic advantage. However, even if Anaya has raised a material issue of fact as
to the date the statutory period began to run, he has not presented evidence
sufficient to withstand summary judgment on the merits of his claim. Anaya did
not put forth evidence that the comment at the heart of this litigation was not
privileged or of actual harm as a result of Nissan’s conduct. See Wichinsky v.
Mosa, 847 P.2d 727, 729-30 (Nev. 1993) (per curiam). Because Anaya has failed
to establish a prima facie case for intentional interference with his prospective
economic advantage, summary judgment is proper as a matter of law.
AFFIRMED.
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