Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 05-445439
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This appeal has been taken from entry of summary judgment in favor of defendants in plaintiff’s action for defamation. Plaintiff claims that the trial court erred by finding that allegedly defamatory statements published in a termination letter are not actionable. We conclude that all of the statements upon which the present defamation action are based were either opinions, truthful, or privileged under Civil Code section 47, subdivision (c). We therefore affirm the judgment.
Statement Of Facts
Plaintiff was employed by defendant San Francisco Unified School District (the District) beginning in 1991, primarily as a substitute teacher. For the school year which commenced in the fall of 2000, plaintiff was hired as the “full-time music and reading teacher” at defendant Edison Charter Academy (Edison), a “K-5 school,” which then operated under a charter from the District. Defendant Vincent Matthews was the principal at Edison during plaintiff’s tenure there. According to plaintiff, during the 2000-2001 academic year, she had several “negative interactions” with Matthews: an invitation “out to a meal” from him, which she considered inappropriate; a complaint she made about his “overly harsh treatment” of the “only other African-American teacher” besides herself at Edison, which seemed to disturb him; and a “satisfactory” evaluation of her class by Matthews, which plaintiff disputed in a rebuttal that claimed she deserved an “outstanding” rating.
In April of 2001, plaintiff was engaged in preparation of her students for presentation of a choral performance at the Edison annual spring concert scheduled for May. At a meeting on April 17, 2001, however, Matthews advised plaintiff that he “was cancelling” the participation of her class in the concert. Matthews offered as a reason for the cancellation his conclusion that plaintiff’s students “were unprepared” for the upcoming concert. Plaintiff thought Matthews’ decision was “unwarranted.” She presented Matthews with her “schematics” for the concert and offered assurances that her students “would be ready in time,” but Matthews nevertheless declared, “Well, I’m still going to cancel the spring concert.” Plaintiff was “unhappy” but not angry, and asserted that she remained “neutral” when she discussed the cancellation of the program with her students.
The performance of the other music class at the school was not cancelled by Matthews.
The next day in plaintiff’s fifth grade music class, her students expressed anger and disappointment when informed by Matthews of his decision to cancel the concert. The response of the students and plaintiff was the subject of somewhat conflicting evidence presented in connection with the summary judgment motion.
Plaintiff declared that she rejected a suggestion from the students that they “all march into the Principal’s office to protest his decision.” The students then chanted “freedom” three or four times until plaintiff told them to stop, whereupon they became quiet. A teacher from across the hall heard the commotion in plaintiff’s classroom through the open door and “peeked” into the room momentarily.
Plaintiff agreed that the students “could write a letter to the Principal,” and phone him to express their disappointment with the concert cancellation if they remained “calm and dignified, and not get upset or angry.” Ten students then successively left polite voice mail messages for Matthews in a single phone call that lasted “several minutes.” Matthews testified at his deposition that many of the voice mail messages from the students were “angry,” and he could hear “basically chaos in the background.” According to plaintiff, the students then all returned to their seats and music instruction resumed.
About 20 minutes later, Matthews appeared in plaintiff’s classroom in a “visibly agitated” state to tell her repeatedly to “never again” permit her students to “call him from the classroom telephone.” Plaintiff declared that her students “remained orderly” during the visit by Matthews, but he described the classroom as boisterous, with “students . . . running around the room,” and at least one student “on the phone” leaving another message for him.
Matthews returned to his office and contacted the Edison director, Juanita Little, to come to assist him to “regain control” of the classroom while he spoke with plaintiff in the hallway. Matthews testified that he told plaintiff he expected her to “maintain control of the class, and that during music instruction students should not be calling the principal’s office.” Plaintiff replied that the students were having “a civil rights lesson” and “exercising their rights” “related to the music instruction” following the disappointing cancellation of their spring concert. According to Matthews, plaintiff responded “no” when he asked if she “was going to regain control of the class.” Plaintiff testified that she advised Matthews she “could . . . handle the class for the next eight weeks until the end of the school term.”
Matthews again returned to his office and spoke with Ligaya Avenida of the District’s human resources department. Matthews described the incident to Avenida, and expressed to her that he had “serious concerns” about the safety of plaintiff’s students “if this is her attitude.” Avenida agreed with Matthews that he “needed to recommend” termination of plaintiff to the District. Avenida also advised Matthews to “write up the incident,” and meet with plaintiff the next morning to inform her of the termination.
Pursuant to Avenida’s advice, Matthews wrote a letter to her on April 19, 2001, which is the subject of the present defamation action. Matthews based the letter on his own observations and a brief discussion with the teacher “across the hall” from plaintiff’s classroom, who informed him that the previous day plaintiff’s students had been “yelling ‘freedom’ ” and threatening to leave the class until the teacher told them to “quiet down” and “stay in their seats,” while plaintiff took no action.
The letter reads as follows:
“On April 18, at approximately 1:50 Ms. Shari Taylor (Music Teacher) was in room 26 to teach a music lesson. The regular classroom teacher left the room and about 5 minutes later the class began to yell out ‘freedom.’ This continued for 2-3 minutes until another classroom teacher across the hall came over to tell the class to quiet down. At this time about 15 students said they were leaving the class. Again the other teacher told the students that they would need to remain in their seats. Ms. Taylor stood there and did nothing. She then allowed 10 students to use the phone to call the Principal’s office and leave negative messages on the Principal’s voice mail. I then went to the classroom. Students were running around, yelling at each other, playing in the closet and one student was on the phone. I told Ms. Taylor that my expectation is that she will maintain control of this class and that during music instruction students should not be calling the principal’s office. Her response was ‘it IS appropriate for students to call the principal’s office during music instruction.’ I sent the Academy Director in to regain control of the class.
“On Thursday April 19 I called Ms. Taylor into a meeting in my office. I told her that due to her inability to manage the classroom, I would be recommending her immediate dismissal. I directed her to go and collect her belongings and please leave the building without disturbing any classrooms. She collected her belongings and then attempted to enter two classrooms. The academy director stood in front of the door and said I can’t allow you to enter these classrooms. She then opened another room and told the teacher to please tell the students in room 26 that she had been fired.
“Due to Ms. Taylor’s inability to maintain control of her classes and her insubordination, I am deeply concerned for the welfare and safety of the students under her care. I am therefore recommending her immediate termination from the district.”
Matthews declared that he wrote the letter not “with any hatred or ill will towards” plaintiff, but rather in his capacity as principal to inform the District of his “professional opinion” that plaintiff was not suited to continue teaching due to her inability to “control the classroom” and her acts of insubordination.
Plaintiff acknowledged that after Matthews advised her of her termination she briefly visited three classrooms, but denied that Matthews ordered her not to do so as he stated in the letter. Plaintiff professed that she did not disturb any of the classrooms she visited, but rather only told her “Union rep,” carpool colleague and another teacher “across the hall from the music class” that she had been fired.
The District subsequently formally terminated plaintiff from her teaching position at Edison. Plaintiff continued to perform substitute and full-time teaching duties elsewhere within the District thereafter through the summer of 2004. In the fall of 2004, plaintiff was given a “site support substitute” teaching position at Thurgood Marshall High School. She was dismissed from the position in October of 2004, upon a review of her personnel records and discovery of the termination letter from Matthews, then offered reinstatement in December upon consideration of the absence of any “similar or negative work performance issues” following the termination. Plaintiff brought the present defamation action against defendants after her government tort claim was rejected.
After plaintiff filed a second amended complaint in the action, defendants filed a motion for summary judgment on grounds that the letter did not contain any factual false statements and was privileged under Civil Code section 47, subdivision (c). After a hearing, the trial court granted the motion on both grounds and entered judgment in favor of defendants. This appeal followed.
All further statutory references are to the Civil Code unless otherwise indicated.
Discussion
Plaintiff challenges the trial court’s determination that the Matthews letter is not defamatory as a matter of law. She argues that the letter contains false statements of fact, which do not fall within the qualified common interest privilege found in section 47, subdivision (c). Plaintiff points out that many of the statements in the letter were the subject of conflicting evidence presented by the parties, and thus the court erred by granting defendants’ summary judgment motion.
We adhere to established rules in reviewing the trial court’s ruling on the summary judgment motion. “A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
“ ‘A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit 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. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ [Citation.]” (Lewis v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 690, 693.) To obtain a summary judgment a defendant may conclusively negate an essential element of plaintiff’s action, but is not required to do so. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1323.) “Summary judgment in favor of the defendant will be upheld when the evidentiary submissions conclusively negate a necessary element of the plaintiff’s cause of action or show that under no hypothesis is there a material issue of fact requiring the process of a trial.” (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 557-558.)
“On appeal from a summary judgment, ‘[w]e review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion . . . and the uncontradicted inferences the evidence reasonably supports.’ [Citation.] The evidence must be viewed in favor of the plaintiff as the losing party, construing the submissions of the plaintiff liberally and those of the defendant strictly.” (Bell. v. Greg Agee Construction, Inc. (2004) 125 Cal.App.4th 453, 459.)
I. The Element of False Statements of Fact .
Our first inquiry is whether the letter contains defamatory material, specifically false statements of fact. “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Citations.]” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645; see also Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132.) “It is an essential element of defamation that the publication be of a false statement of fact rather than opinion. [Citations.]” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1181.) “ ‘In all cases of alleged defamation, whether libel or slander, the truth of the offensive statements or communication is a complete defense against civil liability, regardless of bad faith or malicious purpose.’ [Citation.]” (Raghavan v. Boeing Co., supra, at p. 1132.) “[I]n a defamation action the burden is normally on the defendant to prove the truth of the allegedly defamatory communications. [Citation.]” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195, 202.)
Plaintiff has offered six statements by Matthews in the letter which she claims qualify as false factual statements: that plaintiff’s students were yelling “freedom” for about two or three minutes until the classroom teacher from across the hall came over to tell the class to quiet down; while plaintiff “did nothing,” 15 of her students began to leave their seats, whereupon the “other teacher told the students” that they must remain seated; Matthews observed plaintiff’s students “running around, yelling at each other, playing in the closet,” and using the classroom phone; that Matthews “sent the Academy Director in to regain control” of plaintiff’s class; after dismissing plaintiff, Matthews directed her to leave the premises without disturbing any classrooms, but she “attempted to enter two classrooms” and opened the door to a third classroom to speak to a teacher inside; and finally, that plaintiff was unable to control her classes and was insubordinate. Defendants maintain that the statements were all either truthful or opinions of Matthews which do not constitute defamation.
“To establish the defense of truth—i.e., that the statement is not false—defendants do not have to prove the ‘literal truth’ of the statement at issue. [Citation.] ‘[S]o long as the imputation is substantially true so as to justify the “gist” or “sting” of the remark’ the truth defense is established. [Citations.]” (Hughes v. Hughes (2004) 122 Cal.App.4th 931, 936, fn. omitted; see also Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 582.) To ascertain the gist of a publication, “ ‘ “a court is to place itself in the situation of the hearer or reader, and determine the sense or meaning of the language of the . . . publication according to its natural and popular construction.” That is to say, the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader. . . .’ [Citations.]” (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 547; see also Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 688.) “ ‘Put another way, the statement is not considered false unless it “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” [Citations.]’ [Citation.]” (Hughes v. Hughes, supra, at p. 936.)
“The question whether a statement is reasonably susceptible to a defamatory interpretation is a question of law for the trial court. Only once the court has determined that a statement is reasonably susceptible to such a defamatory interpretation does it become a question for the trier of fact whether or not it was so understood. [Citations.]” (Smith v. Maldonado, supra, 72 Cal.App.4th at p. 647.)
Further, an expression of opinion is not actionable defamation unless it implies the allegation of undisclosed defamatory facts as the basis for the opinion. (Okun v. Superior Court (1981) 29 Cal.3d 442, 451-452; Ringler Associates Inc. v. Maryland Casualty Co., supra, 80 Cal.App.4th at p. 1181; Copp v. Paxton (1996) 45 Cal.App.4th 829, 837.) “To state a defamation claim that survives a First Amendment challenge, thus, plaintiff must present evidence of a statement of fact that is ‘provably false.’ [Citations.]” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048.) “If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.” (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1020.) “The key is not parsing whether a published statement is fact or opinion, but ‘whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.’ [Citations.]” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 701 (Overstock).) “In drawing the distinction between opinion and fact, California courts apply the totality of the circumstances test to determine whether an allegedly defamatory statement is actionable. [Citation.]” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401; see also Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809.)
The entirety of Matthews’s letter, other than the closing statement—in which he recommended plaintiff’s termination due to inability to maintain control of her class and insubordination—falls within the classification of factual in nature. The events that occurred in plaintiff’s classroom on April 18, and the content of the conversations between plaintiff and Matthews that day and the next, are all subject to proof as truthful or false assertions about plaintiff. One factual statement has been conclusively established as true by uncontradicted evidence. Plaintiff acknowledged in her declaration that she told Matthews she felt the voice mail messages left by her students were appropriate and “related to the music instruction.” Thus, the statement in the letter that plaintiff told Matthews “it IS appropriate for students to call the principal’s office during music instruction” does not subject defendants to liability for defamation. Matthews’s stated recommendation to dismiss plaintiff for inability to control her class and insubordination that caused him concern for the safety and welfare of her students is an expression of his professional belief based on disclosed facts, and as an opinion is therefore not actionable. (See Partington v. Bugliosi (9th Cir. 1995) 56 F.3d 1147, 1157-1159; Taus v. Loftus (2007) 40 Cal.4th 683, 720 (Taus); Ferlauto v. Hamsher, supra, 74 Cal.App.4th at pp. 1402-1403; Campanelli v. Regents of University of California, supra,44 Cal.App.4th at p. 580; James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 7-8, 14-15.)
The question of the truth or inaccuracy of four of the remaining factual assertions is not as easily resolved, and in fact has not been definitively resolved in this summary judgment proceeding. Plaintiff and defendants adduced conflicting evidence on the events that took place the day before plaintiff was terminated. In opposition to defendants’ evidence that supported the assertions in the letter, plaintiff offered her deposition testimony and declaration that her students left only polite and positive voice mail messages for Matthews, not the “negative messages” referred to in the letter. According to plaintiff, her students only shouted “freedom” a few times before she, not another teacher, instructed them to stop, and her class was not unruly when Matthews visited a short time later. Plaintiff testified that the academy director did not come to her class to “regain control” of it, but only to preside in the classroom while Matthews spoke to her in the hallway. Plaintiff also denied that she declined to control her class. She insisted that her class “remained orderly,” and specifically informed Matthews that she “could handle the class for the next eight weeks until the end of the school term.”
Finally, plaintiff directly contradicted Matthews’ assertion in the letter that her termination was accompanied with a directive from him not to disturb any classrooms before she departed the premises. Plaintiff testified that Matthews “did not mention anything about disturbing other classes” before she left. She added that her passing conversations with other teachers before were necessary to give colleagues news of her termination, and did not cause disturbance to the classes.
The truth of both the specifics and the essence of the four statements remains at issue. The distinction between plaintiff’s conduct as described in the letter and the evidence she presented relates to her ability as a teacher to control her class and properly follow the directions of her principal. Although some of the dissimilarities may appear superficially trivial—for instance, the difference between plaintiff’s students yelling or chanting “freedom” just three or four times before she told them to stop, as plaintiff stated, or for two or three minutes without intervention by plaintiff, as Matthews reported—the effect upon the reader of the statements that plaintiff claims are false may be quite meaningful, particularly when considered, as they must be, in their entirety and in the context of plaintiff’s professional reputation. (Overstock, supra, 151 Cal.App.4th at p. 701.) And in light of the conflict in the evidence, neither we nor the trial court can make a finding on the truth or falsity of the statements. In our determination “whether the opposition demonstrates the existence of a triable, material factual issue,” we “generally cannot resolve questions about a declarant’s credibility in a summary judgment proceeding [citations], unless admissions against interest have been made which justify disregard of any dissimulation. [Citation.]” (Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612, 1624-1625.) When ruling on a motion for summary judgment, “ ‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . .’ ” (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 539; see also Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Plaintiff has at the least established a triable issue of fact as to the truth of the four factual statements, which cannot be resolved in this proceeding. (See Maidman v. Jewish Publications, Inc. (1960) 54 Cal.2d 643, 651; Hughes v. Hughes, supra, 122 Cal.App.4th at p. 937.)
II. The Defense of Common Interest Privilege .
We proceed to an examination of the “so-called common-interest privilege established by Civil Code section 47, subdivision (c)(1).” (Taus, supra, 40 Cal.4th at p. 720.) “Privilege is an affirmative defense to a claim of defamation. [Citation.]” (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 492.) “The so-called qualified privilege in subdivision (c) of section 47 protects communications made without malice to protect a recognized interest. [Citation.] This privilege applies to any communication, ‘without malice, to a person interested therein, (1) by one who is 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.’ [Citation.] This privilege protects good faith, well-intended communications serving significant interests. [Citation.]” (Id. at p. 493.) “Application of the privilege, as with any conditional privilege in defamation law, involves a two-step inquiry. The first question is whether the factual predicate for the privilege was present—whether, in traditional terms, the ‘ “occasion” ’ was ‘ “privileged.” ’ [Citation.]” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 729 (Mamou).) “[O]nce it is established that an allegedly defamatory statement was made upon an occasion that gave rise to a qualified privilege under section 47(c), a plaintiff may recover damages for defamation only if he or she presents evidence sufficient to establish that the statement was made with malice. [Citations.]” (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1210.) “On summary judgment, of course, the defendant bears the burden of showing in the first instance that there is no triable issue of fact as to either issue—that the statement was made on a privileged occasion, and that it was made ‘without malice.’ ” (Mamou, supra, at p. 729.)
Plaintiff has acknowledged, and with good reason, that defendants “met their burden of demonstrating that the statements in the Subject Letter concern a subject of common interest.” Allegedly defamatory statements made in a letter sent by a school principal to the District’s human resources department that recommended termination of an employee falls within the common interest privilege of section 47, subdivision (c). (Taus, supra, 40 Cal.4th at p. 721; Lundquist v. Reusser, supra, 7 Cal.4th at p. 1204; Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 3; Manguso v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 580 (Manguso); Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1037.) “Courts have consistently interpreted section 47, subdivision (c) to apply in the employment context. [Citation.]” (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369 (Noel); see also Axline v. Saint John’s Hospital & Health Center (1998) 63 Cal.App.4th 907, 914.)
Turning to the element of malice, “Insofar as the common-interest privilege is concerned, malice is not inferred from the communication itself. [Citation.] ‘ “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 grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights (citations).” [Citations.]’ [Citations.]” (Noel, supra, 113 Cal.App.4th at p. 1370; see also Taus, supra, 40 Cal.4th at p. 721; Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413.) “However, ‘[l]ack 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.’ [Citations.] ‘While “[t]he concept of negligence is inherent in the issue of probable cause” [citation], . . . [¶] . . . mere negligence . . . in the sense of oversight or unintentional error, is not alone enough to constitute malice. It is only when the negligence amounts to a reckless or wanton disregard for the truth, so as to reasonably imply a willful disregard for or avoidance of accuracy, that malice is shown.’ [Citations.]” (Noel, supra, at pp. 1370-1371.) “ ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.’ [Citation.]” (Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10, 33 (Jackson).)
Two of the four remaining contested statements in the letter—that plaintiff “did nothing” while her students yelled “freedom” for two or three minutes, then again took no action as 15 of her students began to leave their seats—were based upon information obtained by Matthews from the teacher across the hall, who stated to him that she was forced to enter plaintiff’s classroom and order the students to take their seats and quiet down. The greatest degree of culpability that may be attributed to Matthews’s publication of the other teacher’s description of the events in the letter is that he failed to further investigate information obtained from an apparently reliable and credible source who had personally witnessed the conduct of plaintiff and her students. The cases “ ‘are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ ” (Jackson, supra, 68 Cal.App.4th at p. 33.) Plaintiff has failed to adduce any evidence that Matthews doubted or had reason to doubt the information he received from the “teacher across the hall.”
Nor has she presented evidence that publication of the letter was motivated by enmity towards her. Based on the record we have before us, including Matthews’s declaration, the reason for publication of the letter appears to be nothing more than his professed concern for the students in his capacity as principal of the Edison school. Plaintiff has presented evidence of prior fairly innocuous “interactions” with Matthews to support her claim of malice: her refusal of his invitation to go “out for a meal,” her criticism of his treatment of another “African-American teacher” at Edison, and her expression of disagreement with his “satisfactory” evaluation of her classroom work. These incidents furnish only the most speculative proof of malice based on several minor confrontations, but are certainly not clear and convincing evidence of hatred or ill-will. “Such a speculative possibility falls short of clear and convincing evidence.” (Copp v. Paxton, supra, 45 Cal.App.4th at p. 847.) The publication of the two privileged statements based on information Matthews received from a third party source are not actionable defamation due to the failure of plaintiff to offer proof of malice. (See Taus, supra, 40 Cal.4th at pp. 721-722; Noel, supra, 113 Cal.App.4th at p. 1372; Manguso, supra, 153 Cal.App.3d at pp. 583-584.)
The sole remaining statements—that Matthews found plaintiff’s students “running around,” yelling and playing in the closet when he arrived in her classroom, which caused him to send the academy director into the classroom to “regain control” of the class, and that plaintiff disobeyed his directive to leave the premises without disturbing any classrooms—are distinguishable in that they are based on Matthews’s personal observations of plaintiff’s classroom and his interaction with her. Plaintiff maintains that “[c]ourts do not hesitate to find malice when defendants make false statements based on their own personal observations.” She submits that the false statements in the letter “based on Principal Matthews’ personal observations” raised at least “a triable issue of fact” by demonstrating that he “knew them to be false when he wrote the Subject Letter,” and therefore he “intentionally made false statements” about plaintiff.
Upon consideration of the entirety of the record before us we are not persuaded that a reasonable trier of fact could ascribe the antagonism and intentionality to Matthews’s statements that plaintiff suggests. Matthews’s declaration in the letter that he “sent the Academy Director in to regain control of the class,” is in the nature of an expression of subjective judgment—that is, his reason for taking the action he did—rather than a statement of fact that is subject to rebuttal by plaintiff. (Copp v. Paxton, supra, 45 Cal.App.4th at pp. 837-838.) The assertion by Matthews that plaintiff’s students were boisterous, running and yelling when he visited the classroom, may conflict with plaintiff’s contrary claim that her class was “orderly,” but his assessment of the conditions in plaintiff’s class is not for that reason established as intentionally false simply because it may have been wrong. “ ‘Inherent in the concept of reckless disregard for truth is the notion that it is the speaker’s belief regarding the accuracy of his [or her] statements, rather than the truth of the underlying statements themselves, that is relevant to the malice determination.’ [Citation.] . . . ‘ “That the statement is now . . . proved to be untrue is no evidence that it was made maliciously.” ’ [Citation.]” (Noel, supra, 113 Cal.App.4th at p. 1371.) As we view the evidence, the contrasting descriptions of the events in plaintiff’s classroom presented by the parties may be attributable to disparities in perception and recollection, but the statements by Matthews have not been shown to be the product of any hostility or recklessness on his part. Plaintiff and Matthews may also have simply recalled differently whether he ordered her to leave the building without disturbing other classrooms. Finally, plaintiff agreed that she visited three other classrooms before she left, as Matthews stated in the letter.
Plaintiff declared that Matthews said Juanita Little would “watch” the class briefly while he conversed with plaintiff in the hall.
While we recognize that the summary judgment proceeding seeks only to determine if triable issues of fact remain to be litigated, our review is also guided by the established standard that proof of malice in a defamation action must reach the level of clear and convincing evidence. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252 (Reader’s Digest).) “Summary judgment should be granted ‘unless it appears that actual malice may be proved at trial by clear and convincing evidence . . . .’ [Citation.]” (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1119 (Basich).) “[A]lthough the standard for granting summary judgment in defamation cases was no different from the standard in all other cases, ‘courts may give effect to . . . concerns regarding a potential chilling effect [from protracted litigation] by finding no triable issues unless it appears that actual malice may be proved at trial by clear and convincing evidence—i.e., evidence sufficient to permit a trier of fact to find for the plaintiff and for an appellate court to determine that the resulting judgment “ ‘does not constitute a forbidden intrusion on the field of free expression[.]’ ” ’ ” (Jackson, supra, 68 Cal.App.4th at pp. 34-35, quoting from Reader’s Digest, supra, at p. 252; see also Basich, supra, at p. 1119.) In defamation cases, “ ‘summary judgment is a favored remedy, and upon such a motion the trial court must determine whether there is a sufficient showing of malice to warrant submission of that issue to the jury. [Citations.]’ ” (Jackson, supra, at p. 35.) “ ‘[T]here is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence. [¶] Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.’ [Citation.]” (Ibid.) “The clear and convincing standard requires that the evidence be such as to command the unhesitating assent of every reasonable mind. [Citation.] Actual malice cannot be implied and must be proven by direct evidence. [Citations.]” (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950.)
We do not find any clear and convincing evidence in the record which demonstrates that the two statements based on Matthews’s personal observations, even if inaccurate and negligently published in the letter, were willfully false or reckless. “ ‘ “It is 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, that malice is shown.” ’ [Citation.]” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 931.) Even if we accept plaintiff’s evidence that Matthews was mistaken in his representation of some of the events described in the letter, nothing before us indicates that he lacked at least a good faith belief in the truth of the statements, and the sole motivation for the publication revealed in the record was his professional concern for the level of plaintiff’s teaching skills, not any personal hostility or interest in retribution. (Cf. Sanborn v. Chronicle Pub. Co., supra, 18 Cal.3d at p. 414; Patton v. Royal Industries, Inc. (1968) 263 Cal.App.2d 760, 766; Russell v. Geis (1967) 251 Cal.App.2d 560, 566; Di Giorgio Fruit Corp. v. AFL-CIO (1963) 215 Cal.App.2d 560, 574.) We conclude that no clear and convincing evidence of malice has been adduced to warrant submission of that issue to the jury.
Therefore, summary judgment in favor of defendants was proper. (Noel, supra, 113 Cal.App.4th at p. 1375; Jackson, supra, 68 Cal.App.4th at pp. 34-35.)
In light of our conclusion we need not address the District’s claim of immunity from liability for defamation under Government Code section 818.8.
Accordingly, the judgment is affirmed.
We concur: MARCHIANO, P. J., MARGULIES, J.