Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. GIC815944, Patricia Cowett, Judge.
AARON, J.
I.
INTRODUCTION
Imperial Valley College (College), Denis Cheng's former employer, hired Strata Information Group, Inc. (Strata) to assist the College in developing an information technology plan for the College. Cheng alleges that Sam Ellis, an employee of Strata, told Cheng's superiors that Cheng was "an obstructionist and a hindrance to the project" on which they were working, that Cheng was "intransigent," and "impossible to work with," and that the College should terminate Cheng's employment. After the College terminated Cheng's employment, Cheng sued Ellis and Strata for defamation and related claims, based on these statements. The trial court granted summary judgment for Ellis and Strata. We affirm the trial court's grant of summary judgment because the statements at issue do not imply provably false assertions.
Ellis denies that he made the statements. However, Cheng offered evidence that Ellis had made the statements. In light of the procedural posture of the case, we assume that Ellis did make the statements.
While this appeal was pending, the defendants filed a motion to strike portions of Cheng's opening brief on the ground that various factual assertions made in the brief were not supported by the record. In light of our conclusion that the trial court properly determined that none of the statements Ellis is alleged to have made were defamatory, and in view of our affirmance of the judgment, we deny defendants' motion as moot.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2000, the College hired Cheng as a technical center coordinator. Cheng was to teach faculty and staff how to use various computer programs. In May 2002, the College entered into an agreement with Strata by which Strata would provide consulting services and professional staff to assist the College in, among other activities, developing an informational technology plan encompassing administrative information systems, technology infrastructure, and instructional computing. Strata assigned its employee,
Ellis, to serve as the chief technology officer at the College. In December 2002, the College terminated Cheng's employment pursuant to a Separation Agreement.
In August 2003, Cheng filed a four count complaint against Ellis and Strata alleging intentional interference with contract (count 1), intentional interference with prospective economic advantage (count 2), defamation (count 3), and intentional infliction of emotional distress (count 4). The gist of Cheng's complaint was that Ellis had made false statements to various College executives that caused the College to terminate Cheng's employment.
The defendants moved for summary judgment. In their brief in support of the motion, the defendants argued, among other contentions, that none of the statements Ellis allegedly made were factual assertions that could support a defamation claim. In opposing the motion for summary judgment, Cheng offered the declaration of John W. Mustafa, the former interim director of human resources for the College. In his declaration, Mustafa stated, among other things, that he heard Ellis make various statements to members of the College's executive cabinet which, Mustafa believed, Ellis made in an attempt to persuade the College to terminate Cheng. Specifically, Mustafa stated that Ellis described Cheng as "an obstructionist and a hindrance to the project," "intransigent," "impossible to work with," and opined that the College should terminate Cheng's employment.
The College's executive cabinet consisted of the College's interim president, the vice-president of student services, the vice-president of academic services, and the vice- president of business services.
The trial court granted the motion for summary judgment and entered a final judgment in the defendants' favor. Cheng timely appeals.
III.
DISCUSSION
A. The defendants are entitled to judgment as a matter of law on Cheng's defamation claim because the purported statements Ellis is alleged to have made are not defamatory
Cheng claims that the trial court erred in granting summary judgment for the defendants on Cheng's defamation claim. Cheng contends that the trial court erred in concluding that the statements at issue were not defamatory.
1. Standard of review
A moving party is entitled to summary judgment when the party establishes that he is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant may make this showing by establishing that the plaintiff cannot establish one or more elements of his cause of action, or that the defendant has a complete defense to the cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)
On appeal, the reviewing court makes "'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]'" (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1143, quoting Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.)
2. Governing law
"'Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander. [Citation.] . . . A false and unprivileged oral communication attributing to a person specific misdeeds or certain unfavorable characteristics or qualities, or uttering certain other derogatory statements regarding a person, constitutes slander.' [Citation.]" (Haley v. Casa Del Rey Homeowners Ass'n (2007) 153 Cal.App.4th 863, 877, italics omitted.)
In Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798 (Seelig), the court explained that, as a matter of constitutional law, a statement must imply a provably false factual assertion in order to serve as the basis of a defamation action:
"'Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot
"'reasonably [be] interpreted as stating actual facts' about an individual." [Citations.] Thus, "rhetorical hyperbole," "vigorous epithet[s]," "lusty and imaginative expression[s] of . . . contempt," and language used "in a loose, figurative sense" have all been accorded constitutional protection. [Citations.]' [Citation.] The dispositive question . . . is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion. [Citation.]" (Id. at p. 809.)
The Seelig court outlined the process courts use in determining whether or not a statement implies a provably false factual assertion:
"To ascertain whether the statements in question are provably false factual assertions, courts consider the '"totality of the circumstances."' [Citation.] '"First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. . . . [¶] Next, the context in which the statement was made must be considered. . . . [¶] This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed."' [Citations.] This crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court." (Seelig, supra, 97 Cal.App.4th at pp. 809-810.)
"[A] subjective judgment of the person making the statement," is not one that implies a provably false factual assertion. (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1270; Carver v. Bonds (2005) 135 Cal.App.4th 328, 348 [concluding statements were nondefamatory because they were based on "entirely subjective matters rather than provably false factual assertions"].) For example, in Copp v. Paxton (1996) 45 Cal.App.4th 829, 837, the court noted that other courts have regarded as nondefamatory any "'broad, unfocused and wholly subjective comment,' [citation] such as that the plaintiff was a 'shady practitioner' [citation], 'crook' [citation], or 'crooked politician' [citation]."
In Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958 (Jensen), the court applied these principles in considering whether a supervisor had made potentially defamatory statements about an employee in the employee's performance evaluation. The Jensen court described the employee's defamation action as follows:
"In a nutshell, the lawsuit involves a difference of opinion between an employer and an employee about the quality of the employee's work. A Hewlett-Packard supervisor, Hank Phelps, evaluated the employee, Jensen, as needing to improve his on-the-job performance in certain respects. Jensen took offense at the evaluation, claimed it was false, and accused Phelps of trying to hide his own incompetence." (Id. at pp. 963-964.)
In the performance evaluation, Phelps made the following statements concerning Jenson's "attitude toward his job responsibilities and his coworkers" (Jensen, supra, 14 Cal.App.4th at p. 971):
"Phelps said Jensen had not 'increased his skill' in project definition and control; was not 'pulling his weight' in meeting various sales objectives; appeared to lack concern for management's need for information; had 'weak' knowledge of project management and process control; showed 'lack of direction, inflexibility and lack of dependability' causing 'unnecessary' delays in projects and 'finger-pointing'; had a productivity 'perceived as low' due to his 'lack of personal ownership of tasks'; displayed 'questionable judgment' in pursuing personal 'vindication' concerning 'behavioral problems' and in breaching confidentiality of personnel matters between him and Phelps; did not 'extend' himself by giving 'a helping hand or pitching in'; projected an 'attitude of if it's not my job, it's your problem'; displayed a 'lack of attention' to tasks and 'overall communication with the team'; and was the subject of a 'tremendous amount of negative feedback.'" (Id. at p. 971, fn. 14.)
The Jensen court held that none of the statements in the evaluation could "reasonably be interpreted as false statements of facts." (Jensen, supra, 14 Cal.App.4th at p. 970.) The Jensen court reasoned that the evaluation "documented one manager's assessment of Jensen's work habits, interpersonal skills and level of effort, and . . . outlined the employer's expectations with regard to Jensen's improvement," and stressed that the statements were made in an evaluative context. (Ibid.)
3. The statements at issue are not defamatory because they cannot reasonably be interpreted as implying provably false factual assertions
Cheng claims that the statements Ellis is alleged to have made to College executives, i.e., that Cheng was "an obstructionist and a hindrance to the project," "intransigent," "impossible to work with," and that the College "need[ed] to fire him," were defamatory.
In considering the "totality of the circumstances," we first consider "the language of the statement[s]." (Seelig, supra, 97 Cal.App.4th at p. 809.) Most clearly, the statement "you need to fire him," cannot reasonably be construed as implying a provably false factual assertion. The statements that Cheng was "intransigent" and "impossible to
Although Cheng cites Mustafa's declaration to support his contention that Ellis stated "you need to fire [Cheng]," Mustafa did not state in his declaration that he heard Ellis say "you need to fire him." Rather, Mustafa stated, "I personally heard Mr. Ellis exhort the executive cabinet of the college to terminate Mr. Cheng's employment." The precise wording of Ellis's alleged statement does not affect our conclusion.
work with," are also clearly nondefamatory "lusty and imaginative expression[s] of . . . contempt." (Id. at p. 809.) The remaining statement, that Cheng was "an obstructionist and a hindrance to the project," suggests a general, subjective, overall assessment of Cheng's workplace abilities rather than a provably false factual assertion. In sum, the statements are far less specific and have far less potential to be interpreted as containing factual content than the statements held to be nondefamatory in Jensen. The language of the statements reflects broad, subjective, evaluative commentary regarding Cheng's workplace performance.
With respect to "the nature and full content of the communication," and "the audience to whom the publication was directed," (Seelig, supra, 97 Cal.App.4th at pp. 809-810), Cheng claims that Ellis made the statements to members of the College's executive cabinet in an attempt to have Cheng terminated. As with the language of the statements, the context in which the statements are alleged to have been made indicate that the statements were intended as a subjective assessment of Cheng's workplace abilities, and that they are not provably false factual assertions. (See Jensen, supra, 14 Cal.App.4th at p. 970.)
We reject Cheng's argument that the statements could be interpreted as implying provably false factual assertions because Ellis purportedly occupied a position of "trust and influence," and because Cheng was likely to receive "[un]favorable treatment" as a result of the statements. While persons in positions of trust and influence may make subjective assessments of others that have damaging consequences to those individuals, neither contextual factor would convert fundamentally subjective assessments into provably false factual assertions.
Accordingly, we conclude that the trial court properly granted defendants judgment as a matter of law on Cheng's defamation claim.
In light of our conclusion, we need not consider whether the trial court properly concluded that the statements Ellis is alleged to have made were nonactionable as privileged, pursuant to the common interest doctrine (Civ. Code, § 47, subd. (c)).
B. Cheng has not demonstrated that the trial court erred in granting defendants' motion for summary judgment on his claims for intentional interference with contract, intentional interference with prospective economic advantage, and intentional infliction of emotional distress
Cheng contends that the trial court erred in granting the defendants' motion summary judgment on his claims for intentional interference with contract, intentional interference with prospective economic advantage, and intentional infliction of emotional distress. The sole legal argument Cheng presents in his brief on appeal pertains to the trial court's conclusion that Cheng's statements were not defamatory. Although it is not entirely clear from his brief, Cheng appears to contend that the trial court's purported error in concluding that the statements at issue were not defamatory requires reversal of the trial court's grant of summary judgment as to each of Cheng's claims.
We have rejected Cheng's claim that the trial court erred in granting the defendants' motion for summary judgment on Cheng's defamation claim, in part III.A., ante. Accordingly, we also reject Cheng's claim that the trial court erred in granting summary judgment on his claims for intentional interference with contract, intentional interference with prospective economic advantage, and intentional infliction of emotional distress.
Cheng has failed to present any argument on appeal with respect to the trial court's determination that it found "no causation based on the [Separation Agreement]." In light of our affirmance of the court's grant of summary judgment for the reasons stated in the text, we need not consider whether the trial court's statement serves as an independent and unchallenged ground for affirming the court's grant of summary judgment.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, Acting P. J., O'ROURKE, J.