Sulu v. Magana , 293 Neb. 148 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/01/2016 09:05 AM CDT
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SULU v. MAGANA
Cite as 293 Neb. 148
Patricia Sulu, appellant, v.
K im M agana, appellee.
___ N.W.2d ___
Filed April 1, 2016. No. S-15-128.
1. Judgments: Jurisdiction. A jurisdictional question that does not involve
a factual dispute is a question of law.
2. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment as a matter
of law.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
4. Attorney Fees: Costs. Attorney fees, where recoverable, are generally
treated as an element of court costs.
5. Judgments: Costs. An award of costs in a judgment is considered a part
of the judgment.
6. Pretrial Procedure: Depositions: Attorney Fees. The rules govern-
ing discovery from a nonparty without a deposition authorize a sanc-
tion, including reasonable attorney fees, if undue burden or expense is
imposed on the nonparty subject to a subpoena.
7. Summary Judgment. A motion for summary judgment shall be granted
where there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.
8. ____. When reasonable minds can differ as to whether an inference can
be drawn, summary judgment should not be granted.
9. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted and
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gives that party the benefit of all reasonable inferences deducible from
the evidence.
10. Torts: Intent: Proof. To succeed on a claim for tortious interference
with a business relationship or expectancy, a plaintiff must prove (1) the
existence of a valid business relationship or expectancy, (2) knowledge
by the interferer of the relationship or expectancy, (3) an unjustified
intentional act of interference on the part of the interferer, (4) proof that
the interference caused the harm sustained, and (5) damage to the party
whose relationship or expectancy was disrupted.
11. Torts: Employer and Employee. Factors to consider in determining
whether interference with a business relationship is “improper” include:
(1) the nature of the actor’s conduct, (2) the actor’s motive, (3) the
interests of the other with which the actor’s conduct interferes, (4) the
interests sought to be advanced by the actor, (5) the social interests in
protecting the freedom of action of the actor and the contractual interests
of the other, (6) the proximity or remoteness of the actor’s conduct to
the interference, and (7) the relations between the parties.
12. Torts: Liability. A person does not incur liability for interfering with a
business relationship by giving truthful information to another.
13. Summary Judgment: Proof. A party moving for summary judgment
makes a prima facie case for summary judgment by producing enough
evidence to demonstrate that the movant is entitled to judgment if the
evidence were uncontroverted at trial.
14. ____: ____. Once the moving party makes a prima facie case, the bur-
den shifts to the party opposing the motion to produce admissible con-
tradictory evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law.
15. Summary Judgment: Evidence. Conclusions based on guess, specula-
tion, conjecture, or a choice of possibilities do not create material issues
of fact for the purposes of summary judgment; the evidence must be
sufficient to support an inference in the nonmovant’s favor without the
fact finder engaging in guesswork.
16. Summary Judgment: Witnesses: Testimony. In summary judgment
proceedings, a witness’ testimony may be used if it is based on personal
knowledge, sets forth facts that would be admissible in evidence, and is
made by a person competent to testify on the matter in issue.
17. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.
18. Rules of Evidence: Hearsay. The general rule is that hearsay evidence
is inadmissible unless it fits within a recognized exception to the rule
against hearsay.
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SULU v. MAGANA
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Appeal from the District Court for Scotts Bluff County: Leo
Dobrovolny, Judge. Affirmed.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder,
Chaloupka, Longoria & Kishiyama, P.C., L.L.O., for appellant.
John M. Guthery and Joshua J. Schauer, of Perry, Guthery,
Haase & Gessford, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Cassel, J.
INTRODUCTION
On the advice of a parent, who was also a school board
member, a student authored a letter critical of a public school
teacher’s curriculum. Instead of changing her curriculum, the
teacher quit her job. The teacher then sued the parent/board
member on the theory of tortious interference with a busi-
ness relationship or expectancy. The teacher appeals from a
summary judgment dismissing her claim. Because the parent/
board member provided truthful information and honest advice,
her actions were not unjustified. We affirm the entry of sum-
mary judgment.
BACKGROUND
K ey Individuals
At all relevant times, Kim Magana was a parent of a student
in the Scottsbluff Public School District (School District) and
a member of the School District’s school board (Board). She
ran for a position on the Board out of a desire to make the
school’s curriculum more rigorous and became a member in
2000. Magana served on the Board’s curriculum and technol-
ogy committee.
Patricia Sulu was an upper-level Spanish teacher and chair
of the world languages department at Scottsbluff Senior High
School. She had developed curriculums for her classes and
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the world languages department without criticism from the
School District over her 25 years of employment, and she had
received a number of awards.
Daniel Luke Keener began teaching at the high school
in 2005. He taught Spanish “1” and “2” during the 2011-
12 school year. He kept documentation focusing on com-
ments made by students concerning Sulu and another Spanish
teacher.
S.J. attended Scottsbluff Senior High School from August
2008 through December 2011 and took a number of Spanish
classes, including two semesters of Spanish 2 from Keener and
one semester of Spanish “4” from Sulu. S.J. thought Sulu’s
classes focused too much on culture and not enough on lan-
guage. S.J. testified that she had “a couple of confrontations”
with Sulu about being taught too much culture. When asked
for more details about the confrontations, S.J. explained that
students in Sulu’s classroom told Sulu they felt they were
not being taught Spanish and that S.J. “[j]ust joined in the
conversation that we were taught more culture than . . . the
language.” In 2010, S.J. addressed her concerns about Sulu’s
classes with the principal at that time, but the principal did not
provide any help.
Meeting and Letter
In August 2011, Magana approached Keener and said that
she was frustrated with the lack of rigor in upper-level Spanish
classes. According to Keener, several students had similarly
voiced opinions that the curriculum was not as rigorous as it
should be. He arranged for Magana to meet with S.J., who was
one of those students.
In August or September 2011, S.J. met briefly with Magana
and Keener after school in Keener’s classroom to express con-
cerns about the Spanish curriculum. At that time, S.J. did not
know Magana was a member of the Board. From Magana’s
standpoint, the meeting was for her to seek information as a
member of the Board and its curriculum committee. Magana
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suggested that writing a letter to the Board and the superin­
tendent was an option for S.J.
In September 2011, S.J. drafted a letter to the Board to
address her worries about the Spanish classes taught by Sulu.
The letter spoke of concern about the foreign language pro-
grams—specifically the upper-level Spanish classes—not being
at their “highest potential” and about culture being the main
focus of study. The letter suggested that a “‘surprise’ observa-
tion day (including a standardized test)” would be beneficial.
According to S.J., no one helped her with the content of the
letter. S.J. asked Keener to proofread the letter, but she did not
accept any of Keener’s suggested changes. S.J. did not have
anyone else review the letter. S.J. circulated the letter to class-
mates, asking them to sign it if they agreed, and 20 students
signed it. S.J. mailed the letter to the superintendent of the
School District and the Board. In response to a question later
posed on social media as to whether the letter was Keener’s or
Magana’s idea, S.J. answered, “both.”
Sulu testified in a deposition that because Magana told
S.J. to write the letter, Sulu assumed Magana told S.J. what
to write in the letter. Sulu also testified that during mediation
with Keener, he said Magana “had a hand in it” and helped
write the letter. When asked, “[D]id he say she had a hand in
it or he said she . . . helped write the letter?” Sulu answered,
“Said . . . Magana and [S.J.] were together and then the letter
was written.”
A ftermath of Letter
According to Sulu, her job changed as a result of the let-
ter. Sulu testified that the superintendent told her to teach no
culture, even though three of Nebraska’s five teaching stan-
dards have to do with culture. She explained that due to the
letter, the superintendent told her to change the curriculum
in the middle of the year. Sulu believed that her employment
could be terminated if she taught culture. She began taking her
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students to a computer laboratory because she thought they
were going to have to take a standardized test.
Sulu tendered her resignation to the Board in March 2012.
She testified that she felt she had been pressured to quit. Sulu
did not think that she had done anything wrong, but testified
that “when [the superintendent] said, do you want to turn in
your resignation right now, that was a signal to me.” She testi-
fied that before the letter, she had the support of the adminis-
trators for 25 years.
Lawsuit
Sulu sued Magana. She alleged that Magana’s actions were
“committed not in her capacity as a [B]oard member nor on
behalf of the [Board], but in her individual capacity as a pri-
vate citizen.” Sulu claimed that Magana actively participated
with Keener in drafting the letter. She alleged that Magana’s
“initiation” of the letter was intentional, unjustified, and out-
side Magana’s capacity as a Board member. Sulu further
alleged that she had a valid business expectancy in her career
as a Spanish teacher and that Magana’s initiation of the letter
interfered with Sulu’s business relationship with the School
District and caused harm to Sulu.
Summary Judgment
Magana moved for summary judgment, and the district court
granted the motion. The court found that Sulu presented no
evidence to permit a reasonable inference that Magana’s con-
duct was unjustified. The court explained:
There is no evidence [Magana] authored the letter in any
fashion. There is no evidence the assertions of the let-
ter are untruthful, even though some students may have
regretted signing it. Though she expected the letter would
be sent, there is no evidence Magana knew the contents
of the letter before it was sent, or told the student what to
put in the letter.
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Sulu appealed, and we granted her petition to bypass the
Nebraska Court of Appeals.
ASSIGNMENT OF ERROR
Sulu assigns that the district court erred in finding that
Magana’s actions were “not unjustified” within the mean-
ing of the elements of tortious interference with a business
expect­ancy and, thus, erred in sustaining Magana’s motion for
summary judgment.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is a question of law.1
[2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.2
ANALYSIS
Jurisdiction
[3] We must first address a jurisdictional question. Before
reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdiction
over the matter before it.3
The parties disagree whether the June 27, 2014, order
granting summary judgment was final and appealable, thereby
starting the running of the time for appeal. Sulu seeks to
challenge the June 27 order via a notice of appeal filed on
1
In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d 413
(2015).
2
Grammer v. Lucking, 292 Neb. 475, 873 N.W.2d 387 (2016).
3
Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391
(2015).
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February 9, 2015. Magana argues that the appeal time began
running when the summary judgment order was entered.
Obviously, if this is correct, the appeal was out of time and
we lack jurisdiction of the issue. Sulu responds that the order
was not initially final but later became so.
The answer depends upon whether the absence of a ruling
on a nonparty’s motion for costs and fees—filed prior to entry
of summary judgment—prevented the order granting summary
judgment from being a final and appealable order. In order to
set forth the pertinent procedural history, we provide the fol-
lowing timeline:
• December 22, 2013: School District files motion for costs
and attorney fees under Neb. Ct. Disc. R. § 6-334(A) and
Neb. Rev. Stat. § 84-712 (Reissue 2014). The motion does
not include any notice of hearing.
• June 27, 2014: District court grants summary judgment in
favor of Magana and states that “[m]otions for costs which
are pending or which may be filed will be set for hearing on
proper motion.”
• July 7, 2014: Magana files motion to tax costs against Sulu
and sets it for hearing on July 23.
• July 14, 2014: School District refiles motion for costs
and fees.
• July 18, 2014: Sulu files notice of appeal.
• October 17, 2014: Pursuant to parties’ stipulation, Court of
Appeals dismisses appeal.
• January 23, 2015: District court grants Magana’s motion for
costs (although our transcript does not include this order,
both parties’ briefs recite that the motion was disposed of on
that date).
• February 4, 2015: District court enters order granting School
District’s motion for costs.
• February 9, 2015: Sulu files notice of appeal, stating that she
is appealing orders of June 27, 2014, and February 3, 2015.
[4,5] Our case law supports the conclusion that the School
District’s motion for costs prevented the summary judgment
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order from becoming final until the motion was disposed
of. Attorney fees, where recoverable, are generally treated
as an element of court costs.4 And an award of costs in a
judgment is considered a part of the judgment.5 Thus, in the
context of a motion for attorney fees under Neb. Rev. Stat.
§ 25-824 (Reissue 2008), we have stated that when such a
motion is made prior to the judgment of the court in which
the attorney’s services were rendered, the judgment will not
become final and appealable until the court has ruled upon
that motion.6
[6] The School District’s motion for fees and expenses was
authorized by a discovery rule. The rules governing discovery
from a nonparty without a deposition authorize a sanction,
including reasonable attorney fees, if undue burden or expense
is imposed on the nonparty subject to a subpoena.7 The rule
also contemplates that the requesting party may be respon-
sible for the advance payment of the reasonable cost of copy-
ing documents.8 Thus, under Nebraska’s discovery rules, the
School District was permitted to seek an award of attorney fees
and expenses.
The absence of any disposition of the nonparty’s pend-
ing motion for costs and fees initially prevented the district
court’s judgment from being final. The School District moved
for costs and attorney fees prior to the judgment. But the
district court did not rule on the motion in the June 27, 2014,
order; rather, the court stated that “[m]otions for costs which
are pending or which may be filed will be set for hearing on
proper motion.” The court was likely signaling the parties
that the School District’s motion had not been noticed for
4
Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015).
5
Id.
6
See id.
7
See § 6-334(A)(c)(1).
8
See § 6-334(A)(c)(2)(A).
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hearing. Nonetheless, the absence of any ruling on the motion
left a portion of the judgment unresolved; consequently, the
June 27 order was not final when it was first entered.
The summary judgment order became final on February 4,
2015, when the district court entered its order disposing of
the School District’s motion for costs and fees. Because Sulu
timely appealed from the February 4 order, we have jurisdic-
tion to consider the assignment of error directed to the June 27,
2014, order.
Tortious Interference With
Business Expectancy
[7-9] The principles regarding summary judgment are well
established. A motion for summary judgment shall be granted
where there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of
law.9 When reasonable minds can differ as to whether an
inference can be drawn, summary judgment should not be
granted.10 In reviewing a summary judgment, an appellate
court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence.11
[10] We have previously set forth what must be shown to
prevail on a claim for tortious interference with a business
relationship or expectancy. To succeed on a claim for tortious
interference with a business relationship or expectancy, a
plaintiff must prove (1) the existence of a valid business rela-
tionship or expectancy, (2) knowledge by the interferer of the
relationship or expectancy, (3) an unjustified intentional act
of interference on the part of the interferer, (4) proof that the
9
Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015).
10
Zornes v. Zornes, 292 Neb. 271, 872 N.W.2d 571 (2015).
11
Id.
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interference caused the harm sustained, and (5) damage to
the party whose relationship or expectancy was disrupted.12
This appeal centers on one aspect of the third element of the
claim—whether the act was “unjustified.”
[11] To assist in determining whether interference is
“unjustified,” Nebraska has adopted the seven-factor bal-
ancing test of the Restatement (Second) of Torts.13 Under
the Restatement’s general test, factors to consider in deter-
mining whether interference with a business relationship is
“improper” include: (1) the nature of the actor’s conduct, (2)
the actor’s motive, (3) the interests of the other with which
the actor’s conduct interferes, (4) the interests sought to be
advanced by the actor, (5) the social interests in protecting
the freedom of action of the actor and the contractual interests
of the other, (6) the proximity or remoteness of the actor’s
conduct to the interference, and (7) the relations between the
parties.14 Thus, we would ordinarily use these factors in order
to determine whether interference is “improper” and, thus,
“unjustified” under our law.15
But a different section of the Restatement sets forth a “spe-
cial application of the general test.”16 Section 772 provides:
One who intentionally causes a third person not to
perform a contract or not to enter into a prospective con-
tractual relation with another does not interfere improp-
erly with the other’s contractual relation, by giving the
third person
(a) truthful information, or
12
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816
(2015).
13
See, Recio v. Evers, 278 Neb. 405, 771 N.W.2d 121 (2009); Restatement
(Second) of Torts § 767 (1979).
14
See Recio v. Evers, supra note 13.
15
See Huff v. Swartz, 258 Neb. 820, 606 N.W.2d 461 (2000).
16
See Restatement, supra note 13, § 772, comment a. at 50.
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(b) honest advice within the scope of a request for
the advice.17
[12] The truthfulness of the information provided corre-
lates to whether the interference is unjustified. If the infor-
mation provided is truthful, the interference is not unjusti-
fied.18 Recently, in an appeal from entry of summary judgment
against a plaintiff on her claim for tortious interference with
a business relationship, we expressly held that “a person does
not incur liability for interfering with a business relationship
by giving truthful information to another.”19 Even though the
third person to whom Magana gave the information and advice
was S.J., and not Sulu’s employer, we think the principle
from § 772 still applies, particularly because Sulu alleged that
Magana interfered by initiating the letter. Thus, if Magana
gave truthful information and honest advice to S.J. in initiat-
ing the letter and was not aware that S.J. would include any
false statements in it, its content would not be attributable
to Magana.
[13] Magana produced evidence sufficient to show that she
was entitled to judgment if the evidence were uncontroverted
at trial. A party moving for summary judgment makes a prima
facie case for summary judgment by producing enough evi-
dence to demonstrate that the movant is entitled to judgment
if the evidence were uncontroverted at trial.20 Viewing the
evidence in the light most favorable to Sulu, Magana initiated
the letter by advising S.J. that S.J. could write a letter to the
superintendent and the Board to express concerns about the
Spanish curriculum. There was nothing false about this infor-
mation. Nor was there any evidence providing an inference
that Magana knew that S.J. would make any false statements
17
Id., § 772 at 50.
18
See Recio v. Evers, supra note 13.
19
Id. at 421, 771 N.W.2d at 133.
20
Roskop Dairy v. GEA Farm Tech., supra note 9.
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in the letter. Thus, Magana made a prima facie showing of
entitlement to summary judgment by adducing evidence to
show that her interference was not unjustified.
[14,15] The burden then shifted to Sulu. Once the moving
party makes a prima facie case, the burden shifts to the party
opposing the motion to produce admissible contradictory evi-
dence showing the existence of a material issue of fact that
prevents judgment as a matter of law.21 Conclusions based on
guess, speculation, conjecture, or a choice of possibilities do
not create material issues of fact for the purposes of summary
judgment; the evidence must be sufficient to support an infer-
ence in the nonmovant’s favor without the fact finder engaging
in guesswork.22
Sulu failed to meet her burden to produce admissible con-
tradictory evidence creating a material issue of fact to rebut
Magana’s prima facie case. Sulu attempts to connect Magana
to the letter’s authorship on three grounds.
[16] First, Sulu testified that she assumed Magana told
S.J. what to write. Sulu’s “assumption” does not establish
that she had personal knowledge of the fact. Indeed, it con-
fesses the absence of personal knowledge. In summary judg-
ment proceedings, a witness’ testimony may be used if it is
based on personal knowledge, sets forth facts that would be
admissible in evidence, and is made by a person competent
to testify on the matter in issue.23 Because Sulu lacked per-
sonal knowledge, her assumption cannot provide the neces-
sary connection between Magana and the letter’s allegedly
false statements.
Sulu’s second ground relies upon S.J.’s social media answer,
but it did not speak to the authorship of the letter. The question
21
Id.
22
Id.
23
See, Neb. Evid. R. 602, Neb. Rev. Stat. § 27-602 (Reissue 2008); Chism v.
Campbell, 250 Neb. 921, 553 N.W.2d 741 (1996).
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posed on social media was whether the letter was Keener’s
or Magana’s idea. S.J. answered, “both.” Reliance upon this
question and answer for the identity of the letter’s author
amounts to mere guess, speculation, or conjecture, which is
not sufficient to raise an issue of material fact.
[17,18] Sulu’s final attempt rests upon her deposition tes-
timony that Keener said Magana had a hand in helping S.J.
write the letter. When pressed as to whether Keener told her
that Magana “had a hand in it” or that Magana “helped write
the letter,” Sulu clarified that Keener told her that “Magana
and [S.J.] were together and then the letter was written.” But
what Keener told Sulu would be hearsay.24 Hearsay is a state-
ment, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.25 And the general rule is that hearsay
evidence is inadmissible unless it fits within a recognized
exception to the rule against hearsay.26 Thus, what Keener told
Sulu cannot provide the link between Magana and the letter’s
false statements.
Magana adduced evidence that she had no input on the con-
tent of the letter and no involvement in its drafting, and Sulu
failed to produce admissible evidence to the contrary. Because
Magana did not write the letter or supply its content, whether
the allegations contained therein were false is immaterial in
this suit against her.
As we have already noted, Magana merely told S.J. that
S.J. could write a letter to the superintendent and the Board
to express concerns about the Spanish curriculum. This was
clearly truthful information and honest advice. And because
Magana provided only truthful information and honest advice,
any interference on her part was not unjustified. We conclude
24
See Neb. Evid. R. 801, Neb. Rev. Stat. § 27-801 (Reissue 2008).
25
Plowman v. Pratt, 268 Neb. 466, 684 N.W.2d 28 (2004).
26
Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).
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that the district court did not err in determining that there was
no evidence which would permit a reasonable inference that
Magana’s conduct was unjustified. Thus, the court did not err
in granting Magana’s motion for summary judgment.
CONCLUSION
The order granting summary judgment was not a final,
appealable order due to a pending motion for costs and fees
that the district court noted but did not immediately resolve.
After that motion was ruled upon, Sulu timely filed her notice
of appeal. We conclude that viewing the evidence in the
light most favorable to Sulu, there was no evidence which
would permit a reasonable inference that Magana’s conduct
was unjustified. Because the evidence showed that Magana
provided S.J. with truthful information and honest advice and
the evidence failed to raise any permissible inference to the
contrary, any interference on Magana’s part was not unjusti-
fied. We therefore affirm the entry of summary judgment.
A ffirmed.