Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 090053305002
RUVOLO, P. J.,
I.
INTRODUCTION
Appellants Hertz Equipment Rental Corporation and Ron Hall (hereafter collectively referred to as Hertz) appeal from the denial of a special motion to strike, brought pursuant to Code of Civil Procedure section 425.16 (section 425.16, the so-called anti-SLAPP statute). The motion was brought challenging separate causes of action for defamation and invasion of privacy included in respondent Gerald Goodrick’s (Goodrick) complaint against Hertz, arising out of his termination as branch manager for Hertz’s Big 4 Rents in Ukiah. Hertz asserts that the trial court erred in denying its motion because: (1) at least some of the acts complained of were protected activity under the anti-SLAPP statute, and (2) as to the merits: (a) the alleged acts of Hertz were not defamatory per se and Goodrick failed to plead or prove special damages, (b) the statements attributed to Hertz were true, (c) there was no substantial evidence that appellant Hall made the statements, and (d) the statements were privileged.
We affirm, concluding that at least some of the statements allegedly made by Hertz were not protected under the anti-SLAPP statute, nor were they privileged. We also agree with the trial court that there was substantial evidence the statements were made by Hall, although we disagree, in part, with the trial court and conclude that the alleged statements were defamatory per se.
II.
PROCEDURAL BACKGROUND
Goodrick filed his complaint for damages against Hertz in February 2009, alleging five causes of action in connection with his termination from employment as branch manager with Big 4 Rents in Ukiah. Paragraph 59 of the fourth cause of action alleged that following his termination, Hertz published false statements about Goodrick, “to persons other than... Goodrick, ” by stating he was terminated “in connection with ‘missing equipment, ’ ” which stated or implied that he had stolen the missing equipment. Paragraphs 61 and 63 alleged that the statements were made to employees and customers of Big 4 Rents on more than one occasion, and that the statements were false in that Goodrick did not steal any equipment, and “missing equipment” had nothing to do with his termination. Goodrick further alleged that following his termination, he was visited by police about the false statements set forth in paragraph 59, and that he believed Hertz was the “impetus” for the police visit.
The false statements allegedly exposed Goodrick to “hatred, contempt, ridicule, disgrace and/or obloquy, caused [Goodrick] to be shunned or avoided and/or had the tendency to injure [Goodrick] in his occupation, trade and/or profession.” As a result, Goodrick claimed damages to “his reputation, harm to his trade, profession and/or occupation, shame, mortification, and hurt feelings....” The fifth cause of action realleged that false statements had been made as asserted in the fourth cause of action, and alleged further that these statements invaded his privacy and cast his character in a false light.
After filing an answer to the complaint, Hertz filed a special motion to strike under the anti-SLAPP statute. The motion was opposed by Goodrick, and was heard on July 10, 2009. On September 3, 2009, the trial court filed its rulings on numerous evidentiary objections made by the parties in connection with the motion, and its order denying the motion. This appeal followed.
III.
ANALYSIS AND DISCUSSION
A. Standard of Review and Anti-SLAPP Overview
Recently, this court has once again reviewed the denial of an anti-SLAPP motion, and included in our discussion an overview of the law concerning the standard of review to be applied in this context, and the general legal principles that apply to the statute:
“Like many intermediate appellate courts of this state, we have recently discussed California’s anti-SLAPP statute at considerable length, and have set forth in detail the applicable standard of review. As our colleagues in Division Two explained in Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604 (Tutor-Saliba), ‘Section 425.16, commonly referred to as the anti-SLAPP law, provides in relevant part: ‘ “(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. [¶] (b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶]... [¶] (e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.’ ”
“ ‘ “Under the statute, the court makes a two-step determination: ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)” [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1)....)’ [Citations.] ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ [Citation.]
“ ‘ “A ruling on a special motion to strike under section 425.16 is reviewed de novo. [Citation.] This includes whether the anti-SLAPP statute applies to the challenged claim. [Citation.] Furthermore, we apply our independent judgment to determine whether [plaintiff’s] causes of action arose from acts by [defendant] in furtherance of [defendant’s] right of petition or free speech in connection with a public issue. [Citations.] Assuming these two conditions are satisfied, we must then independently determine, from our review of the record as a whole, whether [plaintiff] has established a reasonable probability that he would prevail on his claims. [Citation.]” [Citation.]’ (Tutor-Saliba, supra, 136 Cal.App.4th at pp. 608-610, quoting Thomas v. Quintero (2005) 126 Cal.App.4th 635, 644-645..., italics omitted.)
“More recently, another court, in affirming the denial of an anti-SLAPP motion, noted that ‘[t]he principal thrust or gravamen of a cause of action determines whether the anti-SLAPP statute applies. [Citation.] “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” [Citation.] The anti-SLAPP statute does not apply where protected activity is only collateral or incidental to the purpose of the transaction or occurrence underlying the complaint. [Citation.]’ (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1036-1037..., original italics...).” (United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617, 1624-1625.)
B. Hertz’s Motion to Strike
Hertz’s special motion to strike was filed shortly before the statutory deadline. Hertz supported the motion initially only by Goodrick’s interrogatory responses. In his responses, Goodrick was asked specifically about the factual underpinning for his defamation claim. His responses repeatedly stated that the publications of false statements about him were communicated by Hertz to employees and customers of Hertz, and to the police, on more than one occasion. As a result of the false statements made to the police by Hertz, the police came to Goodrick’s home and asked to search his garage for the “missing equipment.” This same evidence was relied on by Goodrick in his responses to Hertz’s interrogatories inquiring about the factual basis for his invasion of privacy claim.
The elements of a claim for invasion of privacy are (1) the plaintiff had a reasonable expectation of privacy; (2) the defendant intentionally intruded; (3) the intrusion would be highly offensive to a reasonable person; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the harm. (CACI No. 1800.) The parties did not address separately this claim in the special motion to strike, nor did the trial court in its order. For purposes of this appeal we assume that if Goodrick presented a prima facie case for defamation, it sufficed as to his claim for invasion of privacy as well. (See Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385.) For convenience sake, we will refer to both claims, which rely on the same general facts, collectively as “defamation.”
Goodrick’s opposition was supported by his own declaration, as well as by declarations by Sheryl Mitcham and Bob Wilson. Ms. Mitcham’s declaration stated that she was a regular customer of the Ukiah Big 4 Rents store. She went to the store seeking a donation for the Humane Society from Goodrick, whom she knew to be the manager of the business. When she came to the counter she asked the Caucasian, middle-aged male behind the counter where was Goodrick. Mitcham was told that he no longer worked there. When she asked “why, ” she was told by the man behind the counter that there had been ‘issues relating to missing equipment’ or similar words to that effect.” Mitcham explained she did not know the identity of the man who spoke to her, but he was not one of regular employees at Big 4 Rents.
Mr. Wilson was a long time employee of Big 4 Rents in Ukiah, and had known Goodrick for over 18 years. Goodrick was the branch manager and Wilson was assistant manager. He also knew Ron Hall, Goodrick’s immediate supervisor. After Goodrick’s termination, Hall worked in the Ukiah store approximately four days per week for a period of about two months. During the time Hall worked in the Ukiah store, in response to questions about “[w]here is Jerry [Goodrick]?” Wilson heard Hall tell several customers that Goodrich was “let go” or words indicating that he had been fired. When asked “why, ” Hall told the customers “[w]e had some equipment missing, ” or words to that effect.
Goodrick’s declaration recounted his recollection of the circumstances surrounding his termination. He stated that in October 2007, he was placed on a “Performance Action Plan.” Thereafter, he met with Hertz’s personnel employees who went over the performance plan with him. Nothing was said during the meeting about missing equipment. On the day of his termination he was told by personnel employees and supervisors Mark Hobson and Ron Hall that he was being terminated because he had not fulfilled the requirements of his performance plan. No one at the meeting mentioned that his termination had anything to do with missing equipment. He was never reprimanded or counseled in any way regarding issues relating to missing equipment.
Attached to Goodrick’s declaration was a copy of the performance action plan, dated October 10, 2007. Three items requiring improvement by Goodrick were described in the plan, none of which related to missing equipment.
Hertz’s reply memorandum in support of the motion was accompanied by excerpts from Goodrick’s deposition, and declarations by Mendocino County Deputy Sheriff Don Scott, Mark Hobson, and Ron Hall.
In his deposition, Goodrick stated that Hall told different people who came into the Big 4 Rents store after Goodrick was terminated that he was let go because of “issues with missing equipment.” He claimed that Hall “put [his] name out there in association with missing equipment.” However, in answer to the next several questions, the following exchange took place:
“Q. My question right now is very specific. Do you contend that Ron Hall stated to anyone that you were terminated from Big 4 in connection with missing equipment?
“A. No.
“Q. Is there any false statement related to your termination that you believe Ron Hall made about you?
“A. No.
“Q. Is there any false statement you believe Ron Hall made about you related to missing equipment?
“A. Not directly.
“Q. You say not directly, what do you mean by that?
“A. I believe he put my name out there in association with missing equipment and let people draw whatever conclusion they might.”
As to the visit by police to his home, Goodrick stated that the officer (Deputy Scott) did not state that Hertz was accusing him of stealing equipment, however, “the proof [is] in the pudding.” When asked what he meant by that, Goodrick explained that while they were not accusing him of stealing, Hertz nevertheless sent a policeman to his home to look in his garage. To him, that indicated that Hertz was accusing him of stealing, but not in so many words.
Deputy Scott denied that anyone at Hertz suspected or accused Goodrick of stealing equipment when he went to Big 4 Rents as part of his investigation. Goodrick was interviewed at his home because he was the former manager of the store, and not because anyone accused him of being involved in stealing.
Mark Hobson was Hertz’s zone manager, which included the Ukiah store. Hobson became aware during January 2008, that several generators were not “in repair” as listed on the store inventory, but were actually missing. He discussed this with Goodrick, who admitted that the generators were missing and not in repair, and that he had not reported this to Ron Hall.
Hobson confirmed that Goodrick was terminated because of the missing equipment, “and his ongoing performance problems.” He never suggested that Goodrick stole the equipment.
Ron Hall’s declaration stated that he became aware of the missing generator issue when he was advised in January 2008 about the problem by Hobson. Hall was “surprised” because this inventory discrepancy was never mentioned by Goodrick. Goodrick was terminated several weeks later because of the missing equipment, and “his ongoing performance problems.”
After Goodrick was terminated, Hall discovered that equipment valued at more than $10,000, was missing from the Ukiah store. Police were called in to investigate, but Hall said there were no known suspects. Hall did not suspect Goodrick of stealing, and did not state or imply that to Deputy Scott, whom he met in connection with the investigation.
Hall stated that he worked at the Ukiah store after Goodrick’s termination. Other management and non management employees were brought in to help. Some of these persons could be characterized as middle-aged males. Both Hobson and Hall stated that “Hertz’s business depends heavily on maintaining good business relations with its customers.” Both sides filed objections to portions of the other side’s proffered evidence, which, as noted, the court ruled upon on the same day the order denying the motion was filed.
The record evidence recited in this opinion includes only that evidence to which an objection was not sustained.
The trial court’s order denying the special motion to strike found that, reasonably construed, the fourth and fifth causes of action included allegations of false statements made by Hertz both to law enforcement as well as to customers of the Ukiah store. In this regard, the court also found that the allegations of protected activity (false statements to law enforcement) were not collateral or incidental, but formed “part of the primary thrust” of Goodrick’s defamation claim. Thus, Hertz had met its burden of showing the action arose out of protected activity under prong one of the anti-SLAPP analysis.
Turning to the second prong, the court pointed to evidence that at least one customer was informed by Hertz that Goodrick was terminated in connection with missing equipment. The court concluded that the statement was defamatory by innuendo. Because Hertz failed to prove the innuendo (that Goodrick was involved in the disappearance of the equipment) was true, Goodrick showed a likelihood of prevailing on his claims.
As to the privileges asserted by Hertz, the court concluded that the statements allegedly made to law enforcement were absolutely privileged under Civil Code section 47, subdivision (b). However, the alleged business interest privilege (Civ. Code, § 47, subd. (c)) had not been proved, because Hertz had failed to show that the alleged statement concerning the termination of Goodrick was necessary to avoid damage to customer relations.
C. Discussion
1. Hertz Sustained Its Burden of Showing That the Fourth and Fifth Causes of Action Are Based, In Part, On Protected Activity, Within the Meaning of Section 425.16
Where a cause of action alleges both protected and nonprotected conduct within the meaning of the statute which are not collateral or incidental to the claim asserted, then the entire cause of action may be stricken under section 425.16. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) A plaintiff “cannot frustrate the purposes of the [anti-]SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’ ” (Id. at p. 308, fn. omitted.)
We agree with the trial court’s finding that the allegations of the complaint were broad enough to include both alleged false statements to Big 4 Rents customers as well as to the police who conducted an investigation into missing inventory. The allegations of false statements made to law enforcement are neither incidental or collateral to the claims but form part of the gravamen of the defamation. For this reason, Hertz satisfied its burden of showing that the fourth and fifth causes of action alleged protected activity within the meaning of section 425.16. (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1117 [request that Los Angeles County Sheriff and other law enforcement agencies investigate matter is in furtherance of right to petition government for grievances and the anti-SLAPP statute applies to such activity].)
Goodrick offered to amend his claim to delete references to law enforcement after being served with the anti-SLAPP motion. However, efforts or offers to amend his complaint to delete the allegations of protected activity are unavailing. A plaintiff may not amend the complaint to avoid a hearing on an anti-SLAPP motion. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280, 1294; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.)
Nevertheless, where a cause of action includes both protected and unprotected activity, a plaintiff may defeat the anti-SLAPP motion by showing a probability of prevailing on any part of its claim, either the protected or unprotected activity alleged. If the plaintiff establishes that its cause of action has some merit, then the entire cause of action stands. Thus, the anti-SLAPP procedure cannot be used to eliminate a part of a cause of action which a plaintiff is able to prove. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 104.)
We now turn to the second prong, and evaluate the merits of Goodrick’s claims.
2. Goodrick Has Shown a Likelihood That He Will Prevail on the Merits of His Suit, Within the Meaning of Section 425.16
a. Goodrick Produced Sufficient Evidence of Statements Which Were Defamatory Per Se, and Were Made by Appellant Ron Hall
The trial court concluded that Goodrick’s complaint relating to defamation alleged two discrete sets of acts. One was alleged false statements made to law enforcement which led to an investigation by the county sheriff’s office, and false statements made by Hall to customers of the Ukiah store who inquired “[w]here’s Jerry?” Goodrick complains on appeal that, if he had been allowed to drop the references to law enforcement, as he offered to do during the truncated meet and confer communications before the hearing on the motion, the motion would have been unnecessary, as would this appeal.
This latter statement is made by Goodrick in the context of arguing that Hertz failed to meet and confer adequately as required by the Superior Court of Mendocino County, Local Rules, rule 8.2. The trial court implicitly rejected this contention. Goodrick has not challenged the implicit finding as error in a cross-appeal. Moreover, even if Hertz had failed to comply with its meet and confer obligation under the local rule, Goodrick could not avoid the bite of the special motion to strike by seeking to amend his complaint before the hearing. (Fox Searchlight Pictures, Inc. v. Paladino, supra, 89 Cal.App.4th at p. 308.)
We agree with the trial court that, to the extent Goodrick alleged as a basis for his defamation claim false statements were made to law enforcement accusing him of a crime, he failed to proffer sufficient evidence to make a prima facie case for relief on that basis.
“In order to establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must ‘ “state[ ] and substantiate[ ] a legally sufficient claim.” ’ [Citations.] Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ [Citations.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The standard applied by the trial court in determining whether the evidence presented is sufficient “is ‘similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment, ’ in that the court cannot weigh the evidence. [Citations.]” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010.) “The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. [Citation.]” (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 735.) The question whether the plaintiff has shown a probability of prevailing is reviewed independently on appeal. (Ibid.)
Not only did Hobson and Hall deny making any accusatory comments to Deputy Scott when he was called in to investigate the loss of inventory, but Deputy Scott likewise confirmed that no accusations were made or implied by Hertz personnel that Goodrick was suspected of being involved. Scott further stated in his declaration that he went out to interview Goodrick at his home following his termination because Scott was conducting an official investigation and was interviewing a number of Hertz personnel. Goodrick was interviewed because he was the former store manager who might be able to shed some light on who may have been involved, or how the equipment went missing, not because he was a suspect.
Goodrick tried to raise an inference to the contrary by pointing out that Deputy Scott initially showed interest in searching Goodrick’s garage, but Scott declared that he did not ask to search; Goodrick offered and Scott declined. Even looking at the evidence in a light more favorable to Goodrick than to Hertz, we conclude that there was insufficient evidence to support a claim of defamation based on allegations that false statements were made by Hertz to law enforcement.
Even if the factual evidence was legally sufficient to constitute a prima facie case, reports to law enforcement are privileged. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 365; Kemps v. Beshwate (2009)180 Cal.App.4th 1012, 1018-1019.)
Therefore, if Goodrick has proffered sufficient evidence to establish a prima facie case of defamation, it is with respect to the allegations that untrue, defamatory statements were made by Hertz to its customers about Goodrick’s involvement in missing inventory.
As is apparent, the evidence is in conflict on certain important factual questions impacting Hertz’s special motion to strike. When faced with conflicting evidence on an anti-SLAPP motion, “we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff... and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576.) Thus, we must view the evidence is a manner most favorable to Goodrick.
In reviewing the evidence through this legal prism, we agree with the trial court that a prima facie case of defamation was shown by Goodrick. First, while disputed, Goodrick submitted evidence that Hall told customers after his termination that he was “let go” in connection with missing equipment. This evidence came in the form of declarations by Mitcham and Wilson. As to whether the speaker was Hall, Wilson declared that he heard Hall make such statements, and Mitcham described him physically. While Hall stated in his declaration that a number of people who were middle aged and white worked at the store following Goodrick’s termination, that does not overcome the factual showing Goodrick made on this issue.
Thus, there was sufficient evidence presented by Goodrick evincing both that statements about the circumstances of his termination were made to customers, and that the statements were made by Hall. The statements were also defamatory per se under California law.
The definition of slander, “a species of defamation, ” is statutory in California. (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 867.) Civil Code section 46 provides in material part: “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: [¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; [¶]... [¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits....” These types of slander are defamatory per se, and require no proof of actual damages. (Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 367 (Regalia).)
An allegation that a plaintiff is guilty of a crime is libelous on its face. (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138.) Stating that Goodrick was fired because equipment was missing raises a fair inference that he stole the equipment, and thus, is the functional equivalent of calling him a thief. (Pouchan v. Godeau (1914) 167 Cal. 692 [barring plaintiff’s entry into a hall saying “thieves are not allowed in here” carries a charge of plaintiff being a thief].)
We agree with Goodrick that Cunningham v. Simpson (1969) 1 Cal.3d 301, is instructive. In Cunningham, the plaintiff was intending to sell a vehicle to another. At a meeting between the plaintiff and the buyer with a bank loan officer from whom the buyer was seeking financing, the plaintiff testified that the bank loan officer stated, in the presence of a third person, “ ‘[I]t’s obvious to me you’ve got a hot title or you’d bring it down here.’ ” (Id. at p. 306.) The Supreme Court held that this accusation that plaintiff possessed a “hot title” could “reasonably be understood to imply that the plaintiff had acquired the car by some illegal means and as such would constitute a slander as defined by section 46 of the Civil Code.” (Cunningham, supra, at p. 46, fns. omitted.)
The same is true here. A statement that Goodrick was fired in connection with missing equipment “could reasonably be understood to imply” that Goodrick stole it. Thus, the statement is defamatory per se.
Alternatively, the statement imputes professional incompetence in Goodrick’s role as manager of the Big 4 Rents store. In Regalia, supra, 172 Cal.App.4th 361, the plaintiff sued for defamation solely under subdivision 3 of section 46. The plaintiff alleged that he was slandered by statements that he was seeking to collect an improper finder fee, and that employees did not want to work with him. The court concluded that the alleged statements made concerning the plaintiff did not directly injure him in his profession, trade or business, and by “natural consequence” cause harm to his reputation. (Id. at p. 370.)
The court explained the applicability of this form of slander per se to charges of occupational incompetence: “Most of the cases that fit within that category involve statements that reflect on the integrity and competence of the plaintiff, the clearest being allegations of unethical activity or incompetence. (See 5 Witkin [Summary of Cal. Law (10th ed. 2005)] Torts, § 553, pp. 808-809.) As one author stated, ‘[t]he disparagement must be more than general defamation of the victim’s character, it must go to a characteristic particularly relevant to the victim’s occupation.’ [Citation.]...” (Regalia, supra, 172 Cal.App.4th at p. 369, italics added.)
While the statements in Regalia may have been insufficient to impugn the plaintiff’s business reputation, the alleged statements here directly do so. Goodrick was employed at the Big 4 Rents store in Ukiah, a small northern California town, for over 25 years, working his way up from counter person to branch manager, in which position he served for 19 years. As its name implies, Big 4 Rents rents supplies and equipment to the public. Telling customers that Goodrick was fired from that position because equipment was missing, conveys a lack of competence to perform the duties as manager. This implication “[t]ends directly to injure him in respect to his office, profession, trade or business, [] by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, ...” (Civ. Code, § 46, subd. 3.)
The Regalia court ultimately concluded that the statements made about the plaintiff did not necessarily reflect negatively on his professional reputation. The court noted that the statements that Regalia was fired because other employees would not work for him and would leave if he remained employed did not, on its face, clearly fall within subdivision 3 of Civil Code section 46. “That one or more employees do not want to work for someone, without more, again, does not necessarily reflect adversely on the person. The employee or employees might not want to work for a person because of the person’s work ethic or rectitude, or legitimate business policies.” (Regalia, supra, 172 Cal.App.4th at p. 370.)
Thus, we conclude that fair inferences from what was said either accused Goodrick of having committed a crime, or imputed incompetence in his long-standing occupation as a retail store manager, such that in either case the remarks were defamatory per se. For this reason, these circumstances do not rely on the doctrine of defamation by innuendo, because there is no innocent meaning which reasonably could be attached to the statements. (See Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645-646.)
“The office of an innuendo is to declare what the words meant to those to whom they were published. When the words themselves, under any circumstances, would convey to those who read or hear them a meaning within the statutory definitions [of libel and slander], there is no occasion for the pleading of an innuendo. Conversely, if the words under no circumstances could convey a defamatory meaning, then no innuendo can make them defamatory. An innuendo, however, is necessary where the words used are susceptible of either a defamatory or an innocent interpretation. [Citations.] And when the offending language is susceptible of an innocent interpretation, it is not actionable per se, but, in addition to an innuendo, it is necessary for the plaintiff to allege special damages by reason of the meaning gained from the publication. [Citation.]” (Washer v. Bank of America (1943) 21 Cal.2d 822, 828, italics omitted, overruled on other grounds in MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 551.)
Therefore, Goodrick made a sufficient showing that Hertz made statements about him that injured his reputation in such a fashion that it constituted defamation per se. That showing having been made, there was no need for him to present evidence of actual damage to his reputation. The only questions remaining are whether the statements were false, or privileged.
Objections by Hertz to the understanding of Mitcham and Wilson upon hearing the statements were sustained by the trial court. We disagree that the statements, which were obviously offered to prove their respective states of mind, were inadmissible (Evid. Code, § 1250), or objectionable on any other ground raised by Hertz.
b. Goodrick Produced Sufficient Evidence That the Statements to Customers Were Not True, Nor Were They Privileged
The evidence presented in connection with Hertz’s anti-SLAPP motion was also in conflict as to whether Goodrick was actually terminated in connection with “missing equipment.” To be sure, both Hall and Hobson declared as much. However, Goodrick’s deposition testimony is inconsistent on this point, and the assertion was specifically denied in his declaration filed in opposition to the motion. Moreover, there was other evidence presented in connection with the motion that raises at least an inference that the statement was not true.
Goodrick’s declaration stated that, after he was placed on a “performance action plan” in October 2007, he met with Hertz’s personnel employees concerning the plan. Nothing was said during the meeting about missing equipment. On the day of his termination, he was told by personnel employees and supervisors Mark Hobson and Ron Hall that he was being terminated because he had not fulfilled the requirements of his performance plan. No one at the meeting mentioned that his termination had anything to do with missing equipment. He was never reprimanded or counseled in any way regarding issues relating to missing equipment. The performance action plan, which was attached to Goodrick’s declaration and which was a precursor to his termination, did not mention his inability to prevent lost inventory as an area in which he needed to improve.
In its briefs, Hertz emphasizes portions of Goodrick’s deposition testimony, which we have quoted earlier in this opinion, in which he appeared to deny any contention or claim that Hall made false statements relating to his termination. However, just before the colloquy Hertz references, the following exchange occurred regarding Goodrick’s responses to interrogatories:
“Q: You were asked in those interrogatories to state the basis for your claims of defamation and false light and you indicated that Ron Hall made false statements related to your termination; is that correct?
“A: Yes.
“Q: Other than communications made by Ron Hall, are there any other individuals who you contend made any communications to support your defamation or false light claim?
“A: I don’t believe so.
“Q: The communication that was made by Ron Hall that you contend supports your defamation claim, exactly what is that communication?
“A: Ron Hall made—I was told he had told different people that came into our store that when they asked why I was no longer there that they had to let me go, we had issues with missing equipment. They sent a policeman over to my house.
“Q: Do you contend that Ron Hall communicated to someone that you were terminated from Big 4 in connection with missing equipment?
“A: He put my name out there in association with missing equipment.”
Immediately following this exchange came the questions and answers that Hertz relies on to support the argument that Goodrick admitted the truth of the statement that he was terminated because of missing equipment:
“Q. My question right now is very specific. Do you contend that Ron Hall stated to anyone that you were terminated from Big 4 in connection with missing equipment?
“A. No.
“Q. Is there any false statement relating to your termination that you believe Ron Hall made about you?
“A. No.
“Q. Is there any false statement you believe Ron Hall made about you related to missing equipment?
“A. Not directly.
“Q. You say not directly, what do you mean by that?
“A. I believe he put my name out there in association with missing equipment and let people draw whatever conclusion they might.”
Hertz contends that this second deposition excerpt constitutes a form of binding admission, thereby requiring the conclusion that Goodrick actually was terminated in connection with missing equipment. However, in the context of the totality of deposition excerpts produced, Goodrick’s deposition testimony is in conflict on the issue. Furthermore, his declaration clarifies unequivocally that “missing equipment” did not have anything to do with his termination.
More importantly, the performance action plan, which does not refer to missing equipment, supports an inference that this was not the reason for his termination, despite the declarations of Hall and Hobson.
Instructive on this point is the case of Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510 (Scalf). In that case, an allegedly defective log cabin kit had been sold to a consumer who sued both the selling dealer (Scalf) and the kit manufacturer (Lodge Log) for damages. Scalf filed a cross-complaint against Lodge Log seeking indemnity under the dealer’s agreement both parties had signed. Lodge Log moved for summary judgment on the cross-complaint on the basis that there was no evidence it was negligent—a precondition for indemnity under the agreement. Its motion was supported by the deposition testimony of Scalf in which he denied any wrongdoing by Lodge Log.
Scalf opposed the motion, relying on other evidence indicating that Lodge Log was, in fact, at fault. (Scalf, supra, 128 Cal.App.4that pp. 1515-1518.) The evidence consisted of testimony from the purchaser and his contractor enumerating the defects they found upon delivery and attempts to construct the log cabin. (Id. at p. 1523.) Despite this conflict in the evidence, the trial court agreed with Lodge Log that the general procedural rule set forth in D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico) was applicable, and “Scalf’s deposition testimony constituted ‘conclusive judicial admissions’ that Lodge Log’s log cabin kit conformed to the contract and was not defective. The court further declared that it was disregarding opposing evidence tending to undermine or contradict Scalf’s admissions as ‘irrelevant, inadmissible, or evasive.’ ” (Scalf, supra, at p. 1518.)
While Hertz does not cite D’Amico in its briefs, we glean from its argument and citations that indeed its position is that Goodrick is bound by the deposition testimony it cites, and the “truth as a defense” issue must be decided in its favor on this basis.
The Third District disagreed. The court first recognized that the California Supreme Court held in D’Amico that admissions of a party obtained through discovery receive an unusual deference in summary judgment proceeding and, absent a credible explanation, prevail over that party’s later inconsistent declarations. (Scalf, supra, 128 Cal.App.4th at p. 1514.) However, it also noted that “later cases have cautioned that D’Amico should not be read ‘as saying that admissions should be shielded from careful examination in light of the entire record.’ (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482...; accord, Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 77-78....)” (Scalf, supra, at p. 1514.)
For this reason, the court noted that “[t]here is a vast difference between written discovery admissions, which are ‘ “a studied response, made under sanctions against easy denials, ” that occur “under the direction and supervision of counsel, who has full professional realization of their significance” ’ [citation] and glib, easily misunderstood answers given by a lay opponent in a deposition.” (Scalf, supra, 128 Cal.App.4that p. 1522.)
Therefore, the court concluded that the trial court erred in according the damaging testimony conclusive effect on the factual issue of Lodge Log’s negligence, in the face of other evidence beyond simply the contradictory declaration of Scalf:
“Because our courts have been sensitive to this difference, the D’Amico rule has not been accorded as broad an application as the related principle of ‘judicial admission, ’ which gives conclusive effect to the truth of the matter admitted. [Citation.] For summary judgment purposes, deposition answers are simply evidence. Subject to the self-impeachment limitations of D’Amico, they are considered and weighed in conjunction with other evidence. They do not constitute incontrovertible judicial admissions as do, for example, concessions in a pleading [citations], or answers to requests for admissions, which are specially designed to pare down disputed issues in a lawsuit. [Citation.] [¶]... On the contrary, the cases are clear that summary judgment should not be granted on the basis of ‘tacit admissions or fragmentary and equivocal concessions.’ [Citations.]” (Scalf, supra, 128 Cal.App.4that pp. 1522-1523, italics & fn. omitted.)
We need not decide the issue of whether Goodrick preferred a legally sufficient reason under D’Amico for the court to consider his self-serving declaration. Goodrick’s deposition testimony itself was in conflict on the disputed issue, and other independent evidence was presented which refuted the claim that he was terminated in connection with “missing equipment.” This showing was adequate to show falsity, or that the statements to customers were untrue, for purposes of defeating an anti-SLAPP motion. (Soukup, supra, 39 Cal.4th at p. 291.)
Hertz alternatively argues that, even if the statements were defamatory and untrue, they were privileged under Civil Code section 47, subdivision (c), which provides for a qualified privilege for statements made to persons who have a business interest in the information. Hertz is correct to the extent it points out that the “qualified privilege” has been applied in the employment context. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841.) Indeed, the text of the statute itself specifically addresses the provision of employment references to prospective employers.
The full section provides: “(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.”
However, the retail customers of Big 4 Rents had no protectable interest in knowing the ostensible reasons for Goodrick’s termination. Hertz attempts to elevate the interest of these customers in the subject of missing inventory at the store simply because they rent equipment there. It points out that “Hertz’s business depends heavily on maintaining good business relationships with its customers.” We disagree that the statements made to customers had any legitimate business purpose justifying application of the privilege, and that the trial court was correct in concluding that Hertz made an insufficient showing that the communications were necessary to maintain its customer relations. Hertz’s authorities cited in support of its arguments do not persuade us otherwise.
For example, in King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, statements made by United Parcel Service (UPS) to its employees about the reasons for the plaintiff’s termination were privileged “because an employer and its employees have a common interest in protecting the workplace from abuse....” (Id. at p. 440.) No such interest is at risk here.
Similarly, Hertz’s reliance on Williams v. Taylor (1982) 129 Cal.App.3d 745, as involving communications between “a business and its customers regarding the reasons for a former employee’s termination” is misplaced. In that case, the former manager of an auto body shop sued his former employer for statements made to two insurance adjusters who regularly referred business to the shop, and to the Department of Employment Development, that plaintiff had been terminated for theft. As to the adjusters, the court noted that because the adjusters referred their casualty business to the shop, “ ‘[a]s such, they were of a kind reasonably calculated to protect or further a common interest of both the communicator and the recipient.’ (Deaile v. General Telephone Co. of California, supra, 40 Cal.App.3d at p. 847.)” (Williams v. Taylor, supra, at p. 752.)
The statement made to an unidentified official at the Department of Employment Development was privileged under the “official proceeding” prong of Civil Code section 47, former subdivision 3, now subdivision (c) (Stats. 1990, ch. 1491, § 1). (Williams v. Taylor, supra, at p. 754.)
Here there is no such nexus between the Big 4 Rents customers and Hertz. They had no property entrusted to Big 4 Rents that might need protection from theft, or any other legitimate business need for information about Goodrick’s termination. The customers’ inquiries about what happened to “Jerry, ” were nothing more than “general or idle curiosity” about the whereabouts of the former manager, and were not privileged. (Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 109.)
IV.
DISPOSITION
The order denying Hertz’s special motion to strike brought under section 425.16, is affirmed.
Goodrick has requested that this court award him his attorney fees and costs incurred in opposing the anti-SLAPP motion. A trial court may make such an award if it finds that the defendant’s motion was frivolous, or brought solely for purposes of delay. (§ 425.16, subd. (c); Doe v. Luster (2006) 145 Cal.App.4th 139, 143.) The trial court found that Goodrick did not meet the standard for the recovery of attorney fees or costs, and that finding has not been appealed by Goodrick. Accordingly, each side is to bear its owns costs and attorney fees in connection with this appeal.
We concur: REARDON, J., RIVERA, J.