Opinion
A102092.
11-25-2003
DAVID AVIEL, Plaintiff and Appellant, v. CALIFORNIA STATE UNIVERSITY, HAYWARD et al., Defendants and Respondents.
Plaintiff David Aviel, an economics professor at California State University, Hayward (CSUH or university), appeals in propria persona from a judgment entered in favor of the university and two of its top administrators on his complaint for violation of his civil rights, breach of contract, defamation and invasion of privacy, among other things. He challenges a series of orders by which the trial court disposed of each of his causes of action and eventually entered judgment against him. We agree with the trial court that Aviels allegations are in many instances insufficient and that where he has alleged proper causes of action, summary judgment was properly granted against him. Accordingly, we affirm.
Factual and Procedural History
Aviel has been a professor at CSUH since 1974. Defendants are CSUH, the Board of Trustees of the California State University, Jay Tontz, Dean of the School of Business and Economics, and Norma Rees, President of CSUH. Although for many years Aviel had a positive working relationship with CSUHs faculty and administration, the relationship soured in the early 1990s. Over the past twelve years the parties have been involved in at least two lawsuits and two internal administrative proceedings in addition to the present action.
The origin of the ongoing dispute appears to have been a disagreement over whether Aviel properly obtained approval for a mid-semester leave of absence in the summer of 1990. After Aviel left to teach a course abroad in May 1990, CSUH reduced his salary and demoted him on the ground that the leave of absence was unauthorized and constituted "unprofessional conduct" and the "failure or refusal to perform the normal and reasonable duties of [his] position." Aviel filed a grievance and ultimately, in August 1991, an arbitrator ruled that CSUH did not have cause to discipline Aviel for the leave of absence. In 1991, while this grievance was still pending, Aviel filed a complaint in federal court alleging a violation of his civil rights, as well as numerous state law tort and breach of contract causes of action. The complaint alleged that in retaliation for filing the grievance, CSUH began "docking his pay, attempting to demote Plaintiff, spreading false charges that Plaintiff has engaged in improper conduct, arbitrarily denying him research grants and other necessary academic assistance, and otherwise attempting to impair Plaintiffs academic career and reputation." This action was dismissed when the district court granted defendants motion for summary judgment on the federal law claims and dismissed without prejudice the pendant state law claims. In 1995, Aviel filed a second action, this time in superior court, alleging that CSUH was retaliating against him for filing the prior grievance and lawsuit. This action was also resolved by a summary judgment in favor of CSUH that was affirmed in an unpublished opinion. (Aviel v. California Statute University, Hayward (May 27 1997, A076043).)
On August 21, 1998, Aviel filed his complaint in the present action, alleging causes of action for the violation of his civil rights, defamation, breach of contract, breach of the covenant of good faith and fair dealing, interference with contractual relations, interference with prospective economic advantage, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress. The complaint alleged, "For the last few years Plaintiff Aviel has been subjected to punitive measures by [defendants]. Plaintiff is informed and believes that these punitive acts are in retaliation for Plaintiff having filed a lawsuit against his employer in June of 1991." Specifically, Aviel alleges that in retaliation for filing the 1991 action, Tontz overruled a merit pay increase recommended by the Performance Salary Step Increase (PSSI) committee and the university excluded him from overseas teaching opportunities, denied him a new computer, and spread false and defamatory rumors about him to faculty and students. Subsequently, Aviel filed a "supplemental complaint" alleging additional retaliatory acts, including his exclusion from additional overseas programs, the denial of a research grant, the denial of another recommended merit pay increase, and the exclusion of his publications from the business departments lobby showcase. Ultimately, all of these allegations were combined into a second amended complaint.
The trial court granted in part defendants motion for judgment on the pleadings. As to the first cause of action under 42 United States Code section 1983 for a violation of his civil rights, based on the universitys alleged retaliation for having exercised his rights under the First Amendment, the court found that the prior lawsuits filed by Aviel did not involve a matter of public concern sufficient to support the claim. With respect to due process violations alleged in the same cause of action, the court found that Aviel had not pled, nor could he plead, "actionable infringement of liberty or property based on the conduct complained of in the instant action." Accordingly, the court granted the motion without leave to amend. The trial court also granted defendants motion with respect to the defamation and breach of contract claims with leave to amend.
Thereafter, Aviel filed a third amended complaint making the same factual allegations with respect to the breach of contract and tort causes of action but, as the trial judge had previously suggested, incorporating by reference earlier paragraphs detailing defendants alleged defamatory remarks. The trial court subsequently sustained without leave to amend defendants demurrer to the causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and interference with contractual relations on the ground that "Plaintiffs employment is by statute, not by contract." The trial court also sustained with leave to amend Aviels cause of action for interference with prospective economic advantage. The trial court overruled the demurrer with respect to Aviels claims for defamation and invasion of privacy.
The court also sustained without leave to amend general demurrers to the causes of action for emotional distress on the ground that the exclusivity provisions of the Workers Compensation Law barred them. While Aviels notice of appeal purports to challenge this ruling, he has not included any argument relating to these causes of action in his opening brief and, accordingly, he has waived his objections to the courts ruling on the emotional distress causes of action. (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361.)
Thereafter, Aviel filed a fourth amended complaint alleging causes of action for defamation, interference with prospective economic advantage, and invasion of privacy. The trial court subsequently granted defendants motion for summary judgment as to the remaining causes of action. With respect to the defamation cause of action, the court ruled that "Defendants have demonstrated that Plaintiff cannot establish the elements of this cause of action because Plaintiff has no evidence of defamatory statements made by Defendants, and Plaintiff has failed to produce admissible evidence to the contrary." With respect to the cause of action for interference with prospective economic advantage, the court found, "Defendants have demonstrated that Plaintiff cannot prevail on this cause of action because there is no admissible evidence that Defendants interfered with Plaintiffs contractual relations." Finally, with respect to the cause of action for invasion of privacy, the court found, "Defendants have demonstrated that Plaintiff cannot establish the elements of this cause of action because Plaintiff has no evidence that defendants invaded Plaintiffs privacy and because all of Defendant statements were privileged." Judgment was entered thereafter, and plaintiff filed a timely notice of appeal.
Aviel chose to proceed on appeal by way of an appendix in lieu of a clerks transcript. The appendix that he has provided, however, fails to comply with the California Rules of Court. Rule 5.1, which authorizes an appellant to file an appendix in lieu of the clerks transcript, specifically requires that the appendix comply with the requirements of rule 9. (Rule 5.1(c)(1).) Rule 9 requires that the contents of the appendix be arranged chronologically (rule 9(a)(1)(C)), and that the beginning of the first volume of the appendix contain alphabetical and chronological indexes listing each document and the volume and page where it first appears (rule 9(b)(1)). Aviels appendix consists of four volumes, is not arranged chronologically, and does not contain an index. The documents contained in the appendix appear to have been bound together randomly, without any attempt to facilitate review. While it would be within this courts discretion to dismiss the appeal for such blatant failure to comply with the court rules, defendants have not made such a request and, despite the resultant difficulties, we believe that we have succeeded in locating all of the documents necessary to decide the issues on their merits, and therefore opt to do so. (See Wershba v. Apple Computer Inc. (2001) 91 Cal.App.4th 224, 237.)
Discussion
1. Plaintiff failed to plead a cause of action for a violation of his civil rights under 42 United States Code section 1983.
Title 42 United States Code section 1983 provides redress for the deprivation of an individuals constitutional and statutory rights by persons acting under color of state law. The first cause of action of Aviels second amended complaint alleged that defendants alleged retaliation infringed upon his "constitutional right of access to the courts and his property, liberty and interests in practicing his profession in his chosen specialty and in maintaining his reputation without unreasonable interference by defendants" in violation of the First and Fifth Amendments of the United States Constitution. The trial court granted defendants motion for judgment on the pleadings on this cause of action.
Title 42 United States Code section 1983 reads: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."
First Amendment Claim
"It is well established the First Amendment protects speech by public employees which involves matters of public concern. [Citations.] `Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions . . . . [Citation.] `"[T]he threat of dismissal from public employment is . . . a potent means of inhibiting speech." [Citation.] Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees speech. " (Gray v. County of Tulare (1995) 32 Cal.App.4th 1079, 1089.) "In determining whether an employees dismissal impermissibly infringed upon his or her First Amendment rights, the threshold question is whether the employees speech related to a matter of public concern." (Id. at pp. 1089-1090, citing Connick v. Myers (1983) 461 U.S. 138, 146 (Connick).) If the plaintiffs speech "cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for [the employers alleged improper conduct]. . . . When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." (Connick, supra, 461 U.S. at p. 146, fn. omitted.) Whether an employees speech is constitutionally protected is a question of law. (Id . at p. 148, fn. 7.) Thus, this court exercises independent review of this question on appeal. "Whether an employees speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." (Id. at pp. 147-148.) Here, the trial court found that Aviels prior grievances with the university did not involve matters of public concern. We agree.
"Speech by public employees may be characterized as not of "public concern" when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the publics evaluation of the performance of governmental agencies. [Citation.] On the other hand, speech that concerns "issues about which information is needed or appropriate to enable the members of society" to make informed decisions about the operation of their government merits the highest degree of first amendment protection. " (Gray v. County of Tulare, supra, 32 Cal.App.4th at p. 1090.)
Initially, Aviel contends that his 1991 action against CSUH involved a matter of public concern merely because he is a professor at a publicly funded university. However, "[t]o presume that all matters which transpire within a government office are of public concern would mean that virtually every remark—and certainly every criticism directed at a public official—would plant the seed of a constitutional case." (Connick, supra, 461 U.S. at p. 149.) Aviel argues that although the prior action focused on an individualized personnel grievance, CSUHs treatment and retention of its professors is nonetheless important to the publics evaluation of the university. While CSUHs conduct toward its faculty may be a matter of public concern, the highly individualized dispute that arose from Aviels mid-semester leave of absence is simply not relevant to the publics evaluation of CSUHs performance. (Compare Day v. South Park Independent School Dist. (1985) 768 F.2d 696, 699-700 [grievance filed by teacher was not matter of public concern because primary focus was on individual negative performance evaluation and not grievance procedures or policies as a whole] with Pickering v. Board of Education (1968) 391 U.S. 563, 565 [teachers letter to the editor criticizing school boards allocation of funding between athletics and academics was speech relating to a matter of public concern].) Moreover, as in Connick, Aviel did not seek to inform the public that CSUH was treating its tenured professors in a manner that interfered with its obligations to students or taxpayers. (See Connick, supra, 461 U.S. at p. 148 [plaintiffs conduct was not "of public import in evaluating the performance of the District Attorney as an elected official [because plaintiff] did not seek to inform the public that the District Attorneys office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases"].) Accordingly, the trial court correctly determined that the prior legal proceedings did not involve matters of public concern.
Due Process Claim
The first cause of action also alleged that CSUHs assertedly retaliatory and defamatory acts deprived Aviel of both property and liberty interests by infringing on his ability to practice his profession and to maintain his reputation without unreasonable interference, in violation of the Fifth Amendment. Aviel acknowledges that a claim for injury to reputation alone, without injury to a more tangible government benefit, such as employment, is not sufficient to demonstrate a deprivation of a constitutionally protected interest. (Siegert v. Gilley (1991) 500 U.S. 226, 233-234; Paul v. Davis (1976) 424 U.S. 693, 701, 712.) Aviel contends, however, that he has pled more than mere injury to his reputation, specifically that defendants dissemination of defamatory publicity and other retaliatory acts infringed on his ability to practice his chosen profession by causing him to be excluded from overseas teaching assignments, and to be denied research grants, other academic assistance, and regular salary increases.
In Nunez v. City of Los Angeles (9th Cir. 1998) 147 F.3d 867, 873, the court rejected the contention that similar limitations on ones employment, such as the denial of a promotion, infringe on a constitutionally protected liberty interest. "First, to be sure, there is a centuries-old concept of liberty of occupation. [Citation.] However, there is no similar notion of liberty of position or rank within an occupation. [Citation.] . . . As long as employment options within the profession remain, no due process interests have been implicated. Unsurprisingly, every circuit that has addressed the issue has rejected the claim that the denial of a promotion constitutes a deprivation of liberty. [Citations.] We agree with this consensus. Whereas `preventing someone from advancing in his occupation can be a cruel deprivation, it would stretch the idea of liberty of occupation awfully far ... to treat a bar to promotion as a deprivation of that liberty. " (Ibid.) We likewise conclude that none of the alleged restrictions placed on Aviels ability to teach rise to the level of a constitutional deprivation. Accordingly, the trial court properly granted defendants motion for judgment on the pleadings of Aviels cause of action for a violation of his civil rights under 42 United States Code section 1983.
2. The trial court properly sustained defendants demurrer to Aviels breach of contract claims.
Aviels third amended complaint contained several causes of action based on breach of contract theories: the second cause of action for breach of contract, the third cause of action for breach of the covenant of good faith and fair dealing, and, based on the same allegations, the fourth cause of action denominated for interference with contractual relations. The trial court sustained defendants demurrers to these causes of action without leave to amend, and it denied Aviels subsequent motion for leave to amend these causes of action.
In California, public employment is held by statute rather than by contract. (Miller v. State of California (1977) 18 Cal.3d 808, 813.) CSUH is governed by the California State University Board of Trustees, which has rulemaking and policymaking authority. (Ed. Code, § 66606.) The policies and procedures adopted by the board of trustees have the force and effect of a statute. (Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 165.) Thus, whether they are civil service or noncivil service employees, public employees cannot state a cause of action for breach of contract or breach of the implied covenant of good faith and fair dealing. However, if authorized by the terms of the policies or agreements adopted or entered by the board, they may file an action against the university for a violation of its statutory obligations. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 23-24; Kim v. Regents of University of California, supra, at p. 164.)
Here, the trial court sustained the demurrer to Aviels contract related claims in reliance on Kim. Aviel acknowledges that his causes of action were improperly entitled as contract claims, but he asserts that the facts alleged established valid causes of action for violation of the statutory obligations which governed his employment. Alternatively, he contends that the trial court erred by denying him leave to amend his complaint to state a statutory cause of action.
The breach of contract causes of action alleged, "For several years Defendants have continuously breached the contract signed by CSUH and the California Faculty Association (CFA). Said contract specifies that employees of the CSUH must be treated fairly and equitably, that they should not be discriminated against and should not be subjected to any penalty without due process. Said contract also mandates that all parties abide by the laws and refrain from any act that is a violation of federal, state or local laws or ordinances. [Citation.] [¶] . . . Defendants have breached the contract by discriminating against Plaintiff and by imposing, without due process, punitive measures and retaliatory actions against Aviel by blacklisting him, denying him pay increases, denying him overseas assignments, denying him research grants, blocking the installation of a combination lock to his office door and denying him other benefits provided to his colleagues and by disseminating private, personnel matters in order to damage plaintiffs reputation and by otherwise interfering with plaintiffs career, in an attempt to oust Aviel, all in violation of said contract." Aviels proposed amendments to these causes of action contained all of the same factual allegations but alleged that his employment with CSUH was governed by the "rules and procedures, covenants and promises adopted by Defendant Board of Trustee" rather than the "written employment-contract between Defendant CSUH and the California Faculty Association."
Assuming, arguendo, that Aviels allegations were sufficient to allege a violation of CSUHs statutory obligations, these causes of action nonetheless were deficient for another reason. The amended causes of action fail to allege the existence of a judicially enforceable remedy. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1690 [public employees remedies are confined to those provided by statute or ordinance].) Aviels employment agreement provides that the "procedures hereinafter set forth shall . . . be the sole and exclusive method for the resolution of disputes arising out of issues covered by this Agreement." Thereafter, various procedures are set forth for resolving disputes between CSUH and its faculty, beginning with filing a grievance with the university and ending with binding arbitration. The agreement also provides additional dispute resolution mechanisms, including mediation and peer review. The agreement does not, however, permit an employee in the first instance to file an action for its enforcement in the superior court.
For this reason, Valenzuela v. State of California (1987) 194 Cal.App.3d 916, relied upon by Aviel, actually supports the trial courts action. In Valenzuela, the court of appeal upheld an order sustaining the States demurrer to plaintiffs complaint for breach of contract. (Id. at p. 918.) The court reasoned that although the covenant of good faith and fair dealing should be read into the statutory obligations of public employers, the plaintiff was bound by the procedures applicable to civil service employees and had failed to plead exhaustion of his administrative remedies prior to the filing of his superior court action. (Id. at pp. 919-922.) Likewise in this case, Aviel has failed to plead that he has exhausted the administrative procedures contained in the agreement. Although he suggests in his briefing that exhaustion would be futile, he has not alleged any facts supporting that assertion. To the contrary, the record demonstrates that Aviel prevailed in the arbitration of both of his prior grievances with CSUH. Accordingly, the trial court properly sustained Aviels demurrer. Moreover, as Aviels proposed amendment added nothing to show the necessary exhaustion of remedies, the trial court properly denied Aviels motion for leave to file a further amended complaint.
3. The trial court properly granted defendants motion for summary judgment.
Aviels fourth amended complaint alleges causes of action for defamation (first cause of action), interference with prospective economic advantage (second cause of action) and invasion of privacy (third cause of action). Defendants moved for summary judgment and/or adjudication of Aviels claims on the ground that there was no evidence that they defamed Aviel, wrongly interfered with his prospective economic advantage, or did anything that constituted an invasion of his privacy. Defendants also asserted that any statements they made were privileged, that CSUH is immune from liability, and that Aviels complaint was barred by res judicata and collateral estoppel. The trial court granted defendants motion on the first of these grounds.
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] . . . [W]e determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
Defamation
"A publication `must contain a false statement of fact to give rise to liability for defamation. [Citation.] A statement of opinion `cannot be false and is outside the meaning of libel [or slander]. [Citation.] `[T]he dispositive question . . . is "whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion." [Citation.] The court examines the communication in light of the context in which it was published. The communications meaning must be considered in reference to relevant factors, such as the occasion of the utterance, the persons addressed, the purpose to be served, and `all of the circumstances attending the publication. [Citation.]" (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 970.) In defamation actions, it is entirely appropriate for the court to determine in the first instance `whether the publication could reasonably have been understood to have a libelous meaning. " (Id. at p. 969.)
Aviels cause of action for defamation incorporated by reference many of the allegations discussed above, and alleges specifically that "[f]or the last decade Defendants have been spreading false, malicious and defamatory rumors about Aviel to faculty, staff and students. [¶] . . . Defendant Tontz told other faculty and clerical staff that Aviel is a poor teacher, in the `bottom 20% of the school and does not deserve a pay increase, overseas teaching assignments or research grants. Defendant Tontz has also told the Board of Directors of the Research Institute and [the] CSUH faculty members who direct CSUHs programs in Austria (Kurt Leube), Hong Kong (Lynn Pi), Russia (Gary Wishniewsky) and Singapore (Gregory Christiansen) that Aviel is incompetent, dishonest, and could not be trusted. That in the past he had taken home a university computer and that he had violated various University rules. Each of these statements made by Tontz are false."
In support of their motion for summary judgment, defendants submitted Tontzs declaration in which he denied making any false or defamatory statements about Aviel. Tontzs declaration states, "I . . . deny that I have ever `blacklisted plaintiff or spread any false of slanderous remarks concerning professor Aviel, within or without the academic community at CSUH, at any time, whatsoever." The declaration continues, "I deny that I have ever told any of the program directors, including Professors Kurt Leube, Lynn Pi, Gary Wishniewsky or Gregory Christiansen that plaintiff Aviel is incompetent, dishonest, or could not be trusted, as alleged in the fourth amended complaint. [¶] . . . Finally, with respect to plaintiffs grant requests to the Board of the Institute of Research and Business Development ("IRBD"), I did not defame plaintiff in connection with any applications, or ever state to any member of the Board that plaintiff is incompetent, dishonest or cannot be trusted, as alleged in the fourth amended complaint." In opposition to the motion, Aviel argued that Tontzs denials were insufficient to satisfy defendants burden as the moving parties, and alternatively, that Aviels own declaration, which essentially repeats the allegations of the complaint, provided contrary evidence that Tontz made false and defamatory statements about Aviel.
Aviels declaration states that he is "familiar with the details and could and would testify [to the following] if called upon:" (1) "Dean Tontz and his assistants, Dr. Kamath, have spread false, malicious and defamatory accusations about me to faculty, staff and students, inside and outside the university, depicting me as a `lousy and incompetent teacher, at the bottom 20% of the school, a snake, a dishonest individual who took home a university computer and could not be trusted, rendering me a pariah among my peers and in the community at large." (2) "Defendant Tontz has told the Board of Directors of the Research Institute (IRBD) and CSUH faculty members who direct CSUHs programs in Austria (Kurt Leube), Hong Kong (Lynn Pi), Russia (Gary Wishniewsky) and Singapore (Greagory Christiansen) that I am a lousy teacher, incompetent, dishonest, and could not be trusted. That in the past I had taken home a university computer and that I had violated various University rules for which I was disciplined."
Initially, we agree with the trial court that Tontzs declaration was sufficient to shift the burden to Aviel. A defendant has met the burden when moving for summary judgment "if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) Here, Tontzs declaration provides sufficient evidence that he did not make any of the alleged false and defamatory statements. Since the publication of a false statement of fact is an essential element of Aviels defamation claim, the burden shifted to Aviel to present competent evidence raising a triable issue of fact regarding the making of the statements.
Aviels declaration and supporting evidence fail to provide any competent evidence that Tontz or any other defendant made any defamatory statements regarding Aviel. Section 437c, subdivision (d), requires that "[s]upporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations." Aviels declaration does not assert that he heard Tontz make the statements or has any other personal knowledge that any of the statements were made, nor does it explain his source of information that they were made, much less does it state where or when the statements were made. Accordingly, his declaration was insufficient to raise a triable issue of fact. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1518; Overland Plumbing, Inc. v. Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483-484.) Aviel did not offer into evidence the declarations of any of the faculty to whom the comments were purportedly made. Aviels best evidence of defamation comes from the 1991 deposition testimony of Marion Snyder, who served as the secretary for the IRBD. Aviel relies on the following portion of her deposition where she describes a meeting of the board: "My perception of what Dr. Tontz and Dr. [Bruce] McNab were trying to do because it just boiled down to character assassination in that meeting. As far as Im concerned it was character assassination. . . . [¶] . . . [I]t was not the sort of public forum that people should have been getting together with and ripping somebody to shreds like they were Dr. Aviel. . . ." Snyder does not explain, however, who said what about Aviel. There is no evidence that Tontz was at this meeting. To the contrary, her testimony makes it appear as though he was not. The most she says is that Dr. NcNab said that Aviels research grant proposal was being denied because "he had violated other university rules." When asked what specific rules NcNab said Aviel violated, Snyder responded, "Well, the board got into a discussion on it. There were, there was a lot of discussion among them. One of them, again, Im not sure if it was Dr. NcNab that brought up the violation of taking a computer home . . . ." "It was brought up that he had taken a computer without checking it out through correct channels and taken it home, that he had taken an early sabbatical and had gotten other people to substitute in his class without the knowledge of the department." When pressed by the judge at the hearing to explain what Snyder meant by character assignation and what specifically had been said at the meting about his violating university rules, Aviel responded "they said that I [had] stolen a computer and that was wrong. They said that I violated some university rules and that was wrong." However, when the judge indicated that he had not read that in Ms. Snyders testimony, Aviel conceded that her testimony was only that he "took home a computer." We agree with the courts observations that Snyders testimony is simply insufficient to establish Aviels defamation claims. NcNab is not a defendant and these statements, whoever made them, are not sufficient to establish any wrongdoing by the defendants. Absent any admissible evidence creating a triable issue of fact that the statements were made, the trial court properly granted defendants motion with respect to this cause of action.
Defendants filed written objections to the admissibility of the portions of Aviels declaration quoted above in footnote 4 on the ground that the statements were not based on personal knowledge (Evid. Code, § 702) and were inadmissible hearsay (Evid. Code, § 1200). When the matter of the objections was raised at the hearing, the trial court stated that he would "deal with all the evidentiary objections as the rules require me to do." The courts order, however, does not rule explicitly on any of the defendants evidentiary objections. Nonetheless, the judges comments at the hearing reflect his consideration of the issues presented by the relevant objections, thereby eliminating any potential concerns about the trial courts exercise of discretion in ruling on the objections. (See Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236.) Specifically, the court stated, "The problem that youre going to have to persuade me of is where is the evidence. I understand you feel bad. You think youve been wronged. They havent treated you the way you think you should have been treated and various in [sic] sundry other things. [¶] There are three causes of action that remain after all the motions. The first is defamation. I cant, for the life of me, figure out what it is you say is defamatory. . . . As I say, its one thing to be wronged or to feel wronged, et cetera. I need some evidence." The court continued, "As I say, you have these sweeping charges . . . . There are various in [sic] sundry things that somebody might say about somebody else that somebody might call character assassination. It doesnt necessarily rise to the level of defamation. Thats the problem I have. I have these sweeping generalities. . . . [¶] But I dont have any evidence of anything that supports any of these three causes of action." Accordingly, because defendants properly objected to the patently conclusory and incompetent portions of the declaration, and the objections were raised at the hearing, defendants objections were preserved for appeal. (See Sambrano v. City of San Diego, supra, 94 Cal.App.4th at p. 236; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784.)
Aviels declaration also purports to provide the following evidence of false and defamatory statements made by defendants: (1) Tontzs assistant, Dr. Kamath, told professor Christiansen that Aviel was a "snake"; (2) Kamath told Dr. Shomali and Mr. Geyer, both from Golden Gate University, that "Aviel is a snake, a dishonest trouble maker, that sues his employer and could not be trusted"; (3) Various colleagues and clerical staff at CSUH have asked Aviel about the computer he allegedly took home in violation of university rules; (4) Department secretary Florence Bongard wanted to know what was the "dishonest behavior" that lead to the repeated denial of his pay increases; (5) A former student remarked that she was reluctant to sign up for Aviels class because she had heard in the school office that he was a "terrible teacher"; and (6) Alice Sun, a student technician working in the video law told Aviel that she was instructed "to watch Aviel so he does not take any equipment, since he once took home a university computer." This proffered evidence is clearly insufficient. It does not show that defendants made any actionable statements about Aviel. Kamath is not a defendant in this action, and there is no evidence that Tontz or CSUH directed Kamath to make such statements about Aviel. Likewise, the vague statements made by unidentified members of the university community are not actionable. Finally, to the extent that Aviel relies on Tontzs statement that Aviel is at the bottom 20 percent of the school, contained in a declaration filed in a prior lawsuit, that publication is clearly privileged under Civil Code section 47, subdivision (b).
Invasion of Privacy
Aviels cause of action for invasion of privacy incorporates by reference the defamation allegations, and alleges further that "Aviel had a reasonable expectation of privacy with regard to the charges of unsubstantiated low performance and unprofessional conduct brought against him . . . . [¶] . . . Defendant CSUH has a policy of keeping personnel matters strictly confidential and disclosing the charges only to those who must know them in order to carry out official business. [¶] . . . By publicly disclosing false charges of unprofessional conduct to individuals other than those with official business regarding the matter, Defendants have violated Aviels right to privacy."
As discussed above, the Tontz declaration submitted in support of the summary judgment motion denied that he had ever told any of the faculty responsible for overseas teaching opportunities or research grants that Aviel is "incompetent, dishonest or could not be trusted, as alleged in the fourth amended complaint." Again, Aviel failed to provide any admissible evidence supporting his claim that defendants made any such statements. Aviels response to the undisputed facts merely repeats many of the unrelated allegations contained in his complaint, and his declaration makes only the conclusory statement that "Defendant Tontz spread false and malicious accusations that I was disciplined for violating university rules. Tontz failed to disclose that I won these proceedings and that the discipline was dismissed . . . . [¶] . . . Defendant Tontz keeps spread[ing] the accusation that I `was disciplined giving the impression that I have committed some serious infraction. This damaging falsehood was disseminated among clerical and technical staff, such as the computer technicians and support staff and [has] also filtered down to students." Aviels vague accusations that defendants were spreading rumors is not sufficient evidence to defeat summary judgment, and he has provided no additional admissible evidence that Tontz or any other defendant made any specific statement publicizing Aviels disciplinary proceedings. Accordingly, defendants were entitled to judgment on this cause of action.
The only portion of Aviels response to defendants undisputed fact relating to the public disclosure of private disciplinary proceedings reads, "Tontzs assistant, Shaym Kamath told faculty members at CSUH and Golden Gate University, specifically Dr. Shomali, Dean of GGUs School of Business, and Mr. Geyer, program chair, that Aviel is "a snake, a trouble maker that sues his employers and could not be trusted." As noted above, Kamath is not a defendant in this action, and there is no evidence that any of the defendants authorized Kamath to make such statements.
Interference with Prospective Economic Advantage
In Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393, the court held that "a plaintiff seeking to recover for an alleged interference with prospective contractual or economic relations must plead and prove as part of its case-in-chief that the defendant not only knowingly interfered with the plaintiffs expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself." The only "wrongful" acts alleged by Aviel were the defamatory statements allegedly made by Tontz. Accordingly, as defendants are entitled to judgment on Aviels defamation claims, they are also entitled to judgment on this claim.
Disposition
The judgment is affirmed. Defendants are to recover their costs on appeal.
We concur: Corrigan, Acting P. J., Parrilli, J.