Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 468680.
Jones, P.J.
Plaintiff Dan Mescher is a general contractor who, for several years, repaired Pacific Gas & Electric’s (PG&E) buildings and equipment. In 2006, a PG&E employee reported Mescher acted inappropriately while working on a PG&E building. After PG&E investigated the incident and decided not to renew Mescher’s contract, Mescher sued PG&E for slander, malicious conduct, and injurious falsehood. The trial court granted PG&E’s motion for summary judgment, concluding the statements about which Mescher complained were protected by the common interest privilege set forth in Civil Code section 47, subdivision (c) (Section 47(c)).
Unless otherwise noted, all further statutory references are to the Civil Code.
Mescher appeals. He contends summary judgment was inappropriate because he established a triable issue of fact regarding whether PG&E acted with malice. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, PG&E employee David Snyder lived with his girlfriend, Kathy Gower, in a house owned by PG&E. PG&E asked Mescher to go to the residence to determine whether bats had infested the attic. Mescher and a bat exterminator went to the house on October 13, 2006. Gower answered the door and let the two men into the house. The bat exterminator inspected the attic while Mescher waited downstairs.
After the two men left the house, Gower called Snyder. She told him that Mescher had commented on her breasts and “touched her on the behind” while he was at the house. Gower “sounded upset” and told Snyder she did not “feel safe.” Snyder came home from work and called PG&E to report the incident. When Snyder reported the incident, he believed what Gower told him.
In late October 2006, PG&E investigated the incident. Collins Arengo, a senior investigator at PG&E, interviewed Gower. Mescher, however, refused to permit Arengo to interview him unless his attorney was present. Mescher’s contract with PG&E expired in December 2006. On December 21, 2006, PG&E notified Mescher it was not going to renew his contract. PG&E also informed Mescher he was “preclud[ed] from entering PG&E premises.... This preclusion is based on the Company’s conclusion that you engaged in inappropriate conduct while working at one of our facilities.”
Mescher sued PG&E for slander, malicious conduct, and injurious falsehood based on Snyder’s statements to PG&E and PG&E’s internal investigation of the incident. He claimed Arengo reported Snyder’s statements “to other persons within PG&E and reported that [Mescher] asked to have an attorney present for the interview.” Mescher also alleged PG&E “failed to investigate the truth or falsity of the allegations” before removing him from PG&E’s “approved vendor” list. He sought compensatory and punitive damages.
PG&E moved for summary judgment, contending Snyder’s statements and its internal investigation of the incident were privileged pursuant to Section 47(c). PG&E relied on Snyder’s declaration, where he averred that Gower told him Mescher had commented on her breasts and “touched her on the behind” when he and a bat exterminator “came to the house to check our attic for bats.” Snyder further declared that he “believed [ ] Gower when she told [him] what happened and when [he] reported the incident to PG&E.”
PG&E also relied on testimony Mescher gave during his deposition where he conceded he “ha[d] no knowledge” whether Snyder knew Gower’s statements were false when Snyder reported the incident to PG&E. Finally, PG&E relied on a declaration from Arengo. She averred she “attempted to investigate the allegations by [ ] Gower that... Mescher commented on her breasts and touched her on the behind at her home.” Arengo stated she interviewed Gower and attempted to interview Mescher, but Mescher refused to discuss the incident unless his lawyer was present. Arengo also averred she had “never repeated [ ] Gower’s claim to anyone outside PG&E” and had “only repeated [ ] Gower’s claim within PG&E in the context and in furtherance of [the] investigation.”
In opposition to the summary judgment motion, Mescher did not dispute most of the facts asserted by PG&E. Instead, he relied heavily on the allegations in the operative complaint and claimed Gower’s description of the incident was “not to be trusted... and should not be relied upon for a summary judgment where her credibility is seriously in issue.” Mescher disputed Snyder’s description of the events because he claimed Snyder “has testified falsely about a number of other facts. His testimony is likely to be disbelieved, and should not be relied upon for a summary judgment where his credibility is seriously in issue.” In his own statement of undisputed facts, Mescher claimed PG&E refused to investigate the incident properly and ignored information that he “had not acted inappropriately” toward Gower. In support of these facts, Mescher relied on his deposition, where he testified that Gower “lied” and on his declaration, where he denied staring at Gower’s breasts or touching her behind.
Following a hearing, the court granted the motion for summary judgment. The court determined the “undisputed material facts establishe[d] that the allegedly defamatory statements of which plaintiff complains are protected by the common interest privilege” set forth in Section 47(c). The court also concluded Mescher failed to present evidence creating a triable issue of fact that PG&E acted with malice. In July 2009, the court entered judgment for PG&E and Mescher timely appealed.
DISCUSSION
Standard of Review
“The standard of review for summary judgment is well established. The motion ‘shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ([Code Civ. Proc.], § 437c, subd. (c).) A moving defendant has met its burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850; Lackner v. North (2006) 135 Cal.App.4th 1188, 1196).) We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Lackner v. North, supra, at p. 1196.)” (Gundogdu v. King Mai, Inc. (2009) 171 Cal.App.4th 310, 313.)
The Court Properly Granted Summary Judgment Because Mescher Failed to Create a Triable Issue of Material Fact Regarding Malice
Section 47(c) “extends a conditional privilege against defamatory statements made without malice on subjects of mutual interest.” (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368 (Noel).) Section 47(c) provides in relevant part: “A privileged publication or broadcast is one made: [¶]... [¶] (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.” (§ 47, subd. (c).) The common interest privilege set forth in Section 47(c) applies “in the employment context.” (Noel, supra, 113 Cal.App.4th at p. 1369; § 47, subd. (c).)
Under Section 47(c), the “defendant generally bears the initial burden of establishing that the statement in question was made on a privileged occasion, and thereafter the burden shifts to plaintiff to establish that the statement was made with malice.” (Taus v. Loftus (2007) 40 Cal.4th 683, 721 (Taus).) Mescher does not contend the allegedly defamatory statements were not made on a “privileged occasion” for purposes of the common interest privilege. (Ibid.) Instead, Mescher claims the court erroneously granted the motion for summary judgment because “there is evidence of malice that overcomes” the privilege. For the reasons discussed below, we disagree.
“[M]alice is not inferred from the communication itself.” (Noel, supra, 113 Cal.App.4th at p. 1370, citing § 48.) “ ‘ “The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights [citations].” ’ ” (Taus, supra, 40 Cal.4th at p. 721; see also Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1557 [defining malice as “with a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy, or injure”].)
Mescher seems to contend he created a factual issue regarding malice because “PG&E continued on a course of action despite having knowledge that the information they [sic] had was false.” Relying exclusively on his own declaration, Mescher contends he established malice because PG&E “failed to investigate the truth or falsity of the allegations, ” “blocked his access to witnesses, ” and failed to conduct a hearing to determine whether he was “unfit to continue to be an approved vendor.” There are several problems with this argument. First, it ignores the evidence in the record. In her declaration, Arengo averred that she investigated the incident. She interviewed Gower but was unable to interview Mescher because he refused to be interviewed without his attorney present. Second, Mescher has not identified the witnesses to whom his access was blocked, nor has he identified any binding authority requiring PG&E to conduct a hearing before declining to renew his contract.
Third, “none of this shows malice.” (Terry, supra, 131 Cal.App.4th at p. 1557.) “ ‘Lack of reasonable or probable cause... is not... a simple negligence concept.... [M]alice focuses upon the defendant’s state of mind, not his [or her] conduct. Mere negligence in inquiry cannot constitute lack of reasonable or probable cause.’ ” (Noel, supra, 113 Cal.App.4th at p. 1370, brackets in original, quoting Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 423, disapproved on another ground in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738.) In other words, an oversight or an unintentional error, by itself, cannot constitute malice. A plaintiff shows malice “ ‘only when the negligence amounts to a reckless or wanton disregard for the truth, so as to reasonably imply a wilful disregard for or avoidance of accuracy....’ ” (Noel, supra, 113 Cal.App.4th at p. 1371, quoting Roemer v. Retail Credit Co. (1970) 3 Cal.App.3d 368, 371-372.) Even if what Mescher says is true - that Arengo performed a substandard investigation and that PG&E failed to hold a hearing before deciding not to renew Mescher’s contract - it would not demonstrate malice. (See Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 593, p. 871 [“mere negligence in inquiring into facts, or blundering, is not enough” to show malice and to “defeat the privilege”]; see also Noel, supra, 113 Cal.App.4th at p. 1371, citing cases.) Snyder averred that he believed Gower was being truthful when he reported the incident to PG&E. In turn, PG&E investigated the incident and determined Mescher acted inappropriately. Mescher has not demonstrated Arengo or PG&E “lacked reasonable grounds for belief in the truth” of Gower or Snyder’s statements or that they “acted in reckless disregard” of Mescher’s rights. (Taus, supra, 40 Cal.4th at p. 721.)
Mescher also contends he created a factual issue regarding malice because Gower’s allegations were false. Even if Gower’s allegations were false, Mescher’s argument misses the point. That a statement is false does not demonstrate it was made maliciously. (Noel, supra, 113 Cal.App.4th at p. 1371.) The issue is the “speaker’s belief regarding the accuracy of [the] statements, rather than the truth of the underlying statements themselves.” (Ibid., quoting Vackar v. Package Machinery Company (N.D. Cal. 1993) 841 F.Supp. 310, 314.) Here, Snyder testified he believed Gower was telling the truth when she told him about the incident; he also averred he believed Gower when he reported the incident to PG&E. Mescher’s attacks on Gower and Snyder’s credibility do not create a triable issue of fact. (Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 636.)
No reasonable juror could conclude Snyder or Arengo acted with malice. As a result, the trial court properly granted PG&E’s motion for summary judgment.
DISPOSITION
The judgment is affirmed. PG&E is awarded costs on appeal.
We concur: Needham, J., Bruiniers, J.