Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 06CC03981, Geoffrey T. Glass, Judge.
Law Offices of Brian I. Vogel and Brian I. Vogel for Plaintiff and Appellant.
Allen Matkins Leck Gamble Mallory & Natsis LLP, Dwight L. Armstrong and Jason A. Weiss for Defendant and Respondent.
OPINION
MOORE, J.
Plaintiff Irene Gutierrez appeals the trial court’s grant of summary judgment in favor of defendant First American Specialty Insurance Company (First American). Gutierrez sued First American on six causes of action after she was terminated from her employment by the company. She appeals two of the trial court’s findings. With respect to her breach of contract claim, she argues that her at-will employment status became an oral contract when a manager gave her oral assurances about the security of her job. With respect to her defamation claim, she asserts the trial court should not have found that internal publication of the purportedly defamatory statements was privileged. Because these arguments lack legal merit, we affirm.
I
FACTS
Given the limited issues on appeal, we provide a summary of the relevant facts rather than the entire record. First American provides various specialty insurance policies to its customers. Gutierrez worked in customer service at First American from May 2000 until her termination in March 2005. In July 2000, Gutierrez signed an acknowledgment of receipt of an employee manual. The acknowledgment included the following statement: “I expressly agree and understand that my employment with the Company is for an unspecified term, and may be terminated at will by either party, with or without cause or notice. This at-will aspect of my employment which includes the Company’s right to demote or transfer me with or without cause or advance notice, may not be changed absent an individual written employment contract signed by me and a Regional Vice President or President of the Company.”
Gutierrez received salary increases and generally positive performance reviews. In September 2004, she was given an “employee corrective notice” by her supervisor, Shawn Smith. The notice stated that she had engaged in “behavior disruptive . . . [and] interrupted work flow with her consistent involvement with co-workers to encourage them to be upset with the company and/or supervisor.” The notice also cited Gutierrez’s use of the phone and internet for personal business and stated that she “spends much of her day doing anything but work.” The notice stated it would be her “final warning. Further disruption or lack of performance will result in termination.”
Gutierrez asserts that during the meeting in which she was given this warning, Smith lunged across the desk at her. Gutierrez characterized Smith’s behavior as “screaming and yelling.” Gutierrez reported Smith’s behavior to Kelly Dunn, a First American vice-president. During a later meeting with Dunn, Gutierrez expressed concern about interacting with Smith because she feared retaliation. Dunn “reassured me that my job was secure and that I had nothing to worry about, that I was doing a great job for the company.”
Gutierrez claims the September 2004 notice was the result of Smith’s decision to terminate her because she considered Gutierrez to be a “threatening adversary.” Gutierrez was subsequently terminated in March 2005. Gutierrez argues the termination was precipitated by correspondence from a former employee, Alysia Foote, to First American’s chairman. The letter, which was e-mailed to Gutierrez before it was sent, included complaints about Smith’s management.
The termination notice stated that Gutierrez’s behavior “has continued to disrupt the workplace. She has been cavorting with ex-employees and active employees on company time encouraging them to be upset with the company and/or supervisor.” Gutierrez asserts that her termination was unjustified and entirely based on Smith’s personal animus rather than her performance, including retaliation for reporting Smith’s abusive behavior to management.
Gutierrez filed her complaint on March 10, 2006, alleging six causes of action: wrongful termination (breach of contract), wrongful termination (public policy), breach of contract, defamation, intentional infliction of emotional distress and negligent infliction of emotional distress. First American moved for summary judgment and/or adjudication on each cause of action. The trial court granted the motion, and Gutierrez now appeals.
II
DISCUSSION
Summary judgment is appropriate “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) To prevail on the motion, a defendant must demonstrate the plaintiff’s cause of action has no merit. This requirement can be satisfied by showing either one or more elements of the cause of action cannot be established or that a complete defense exists. (Code Civ. Proc., § 437c, subds. (o), (p); Bardin v. Lockheed Aeronautical Systems Co. (1999) 70 Cal.App.4th 494, 499-500.) If the defendant meets this requirement, the burden shifts to the plaintiff to demonstrate a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.) Gutierrez appeals two of the causes of action.
Breach of Contract
With respect to Gutierrez’s two claims for breach of contract, the trial court found: “There is no triable issue of material fact that plaintiff was an at-will employee and expressly acknowledged the same. . . . An express at-will agreement precludes the existence of an implied contract. . . . Her performance and evaluations do not change the at-will nature of her employment and do not, by themselves, give rise to an implied contract or requirement of good cause before termination. . . .”
We agree with the trial court. “An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.” (Lab. Code, § 2922.) “Labor Code section 2922 establishes the presumption that an employer may terminate its employees at will, for any or no reason. A fortiori, the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 350.)
While the presumption of at will employment may be overcome by evidence of an implied agreement, “‘There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results.’ [Citations.] The express term is controlling even if it is not contained in an integrated employment contract. [Citation.] Thus, the . . . at-will agreement precluded the existence of an implied contract requiring good cause for termination.” (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 630.)
Such is the case here. It is undisputed that Gutierrez signed an acknowledgment of her at-will employment status, and never signed a contract that abrogated that provision. Thus, as a matter of law, she cannot argue that vague statements that her “job was secure” created an implied contract requiring good cause for termination. (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38.)
We are not unsympathetic to Gutierrez’s position that she was treated unfairly or discharged without good cause. The at-will employment doctrine, however, is not lightly overcome. The evidence here simply does not support the abrogation of the at-will doctrine, and unfairness, without more, does not provide the basis for a cause of action. Smith may well have been unreasonable and unfair, and First American may well have been ill-advised to continue to support her decisions. But absent an employment contract or a basis for termination that violates public policy, Gutierrez has no grounds for a claim under either theory.
Defamation
On appeal, Gutierrez appears to base her defamation claim entirely on the September 2004 corrective notice and the March 2005 termination notice. “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Citations.] Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645, fn. omitted.)
Gutierrez claims the statements were published to both the Employment Development Department (EDD), in connection with her application for unemployment benefits, and internally, to the human resources department. As the trial court correctly pointed out, the statements to EDD were made in connection with an official proceeding and therefore absolutely privileged as a matter of law. (Civ. Code, § 47, subd (b)(3).) Thus, any statements to EDD cannot be the basis for a defamation claim.
The only other possible publication, therefore, is internal publication within First American. Such communications may be privileged: “Civil Code section 47, subdivision 3, provides, in pertinent part, that ‘A privileged publication . . . is one made [i]n a communication, without malice, to a person interested therein, (1) by one who is also interested. . . .’ The conditional privilege created by section 47, subdivision 3, is lost if the privilege is abused or if the publication was motivated by malice.” (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995 (Cuenca).) Gutierrez devotes almost her entire argument on this issue to a discussion of why a reasonable jury could find the existence of malice, thereby negating the common interest privilege. The court found that First American had met its burden of demonstrating the applicability of the privilege, and we agree.
It may well be that Smith did not like Gutierrez — but mere dislike is not the nature of the malice contemplated by law. “The malice necessary to destroy a qualified privilege is ‘actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.’ [Citation.] Malice may also be established by a showing that the publisher of a defamatory statement lacked reasonable grounds to believe the statement true and therefore acted with reckless disregard for plaintiff’s rights. [Citations.]” (Cuenca, supra, 180 Cal.App.3d at p. 997.)
There was no evidence before the court of anything more than ordinary bad feelings or dislike between the two employees, certainly nothing that rises to the level that would qualify such behavior as malice within the meaning of the statute. Further, the evidence demonstrates that Smith did have reasonable grounds for believing her statements to be true, as established by the prior written warning to Gutierrez. Thus, we agree with the trial court that the conditional privilege applied to the internally published statements, and summary judgment was therefore proper.
Even if there were sufficient evidence to create a triable issue of fact regarding malice, Gutierrez’s defamation claim would fail for another reason. The only damage she can establish as a result of the internal publication is the fact of the termination itself — she admitted as much at her deposition. At oral argument, Gutierrez’s counsel suggested that the internal publication of the statement would be slander or libel per se. Civil Code section 45 defines libel as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” If we accepted the interpretation that the fact of being terminated was sufficient to establish a “tendency to injure” in her occupation, that would constitute a complete end run around the at-will employment doctrine, and any employee in a company (run by more than a sole proprietor) could sue for defamation. This clearly cannot be the law. “Occupation,” in this context, can only be interpreted as something outside the plaintiff’s current job.
As the trial court noted, there is no evidence that Gutierrez was compelled to republish the alleged defamatory statements. The trial court discussed the principle under which the originator of a defamatory statement can be held liable where “the person defamed will be under a strong compulsion to disclose the contents of the defamatory statement to a third person after he has read it or been informed of its contents. McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 795-798.” The court found that while it may have been foreseeable that Gutierrez would be compelled to tell future prospective employers of why she was terminated, “The facts presented in this motion, however, do not support the cause of action. . . . The separate statement of the plaintiff contains no reference to the republication by the plaintiff. In her complaint, she denied knowing to whom the statements were published, except for the internal publication. . . . In her deposition, she testified that she told her present employer (CNL) that she was terminated from her last employment. She did not say that she told CNL why First American had terminated her. . . . Her declaration in opposition to the motion does not mention the induced self-publication to prospective employers. There was no declaration by anyone in connection with this motion that would allow the court to conclude that plaintiff actually republished the alleged defamatory statements when being interviewed by CNL or by any other employer. ”
Thus, even if Gutierrez had sufficiently defeated the privilege, she had not alleged any damage resulting from the statements other than the fact of termination itself. Summary judgment was therefore proper.
III
DISPOSITION
The judgment is affirmed. In the interests of justice, each party shall bear their own costs on appeal.
WE CONCUR: SILLS, P. J., ARONSON, J.