2017-00221356-CU-WT

Arthur Gomes vs. Fulcrum Property Corp.

Nature of Proceeding: Hearing on Demurrer to Complaint

Filed By: Hyatt, Allison S.

Defendants Fulcrum Property Corp. (“Fulcrum”) and Vannessa Norgauer’s (“Ms. Norgauer”) (collectively, “Defendants”) demurrer to the fifth cause of action is SUSTAINED with leave to amend.

Plaintiff Arthur Gomes, Jr. (“Plaintiff”) filed his complaint on October 26, 2017, alleging five causes of action based on the termination of his employment with Defendants. Plaintiff’s fifth cause of action alleges defamation against Defendants. The key allegation at issue here is at paragraph 41 of the complaint, which states:

“On or about May 5, 2017 and thereafter, FULCRUM’s employee NORGAUER made the false statement, published both within and without FULCRUM, that Plaintiff ‘threatened’ CFO Colleen Pacca on May 5.”

Defendants demur to the fifth cause of action on the basis that it is uncertain because it fails to include specifics about exactly when Ms. Norgauer made the statement, whether the communication was written or oral, to whom it was made, etc. Demurrers for uncertainty are disfavored and are only granted where the complaint is so muddled that the defendant cannot reasonably respond. The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; 1 Weil & Brown, Civil Procedure Before Trial (Rutter 2008), sec. 7:84, p. 7(l)-37.) The fifth cause of action is not so muddled that Defendants cannot respond. In addition, case law indicates that a defamation cause of action is not fatally uncertain for pleading purposes where it fails to identify specific date of the publication. (Schuessler v. Keck (1959) 125 Cal.App.2d 827, 835.) Accordingly, the demurrer on the basis of uncertainty is OVERRULED.

Defendants also demur to the fifth cause of action on the grounds that Plaintiff has not alleged a provably false statement because the allegation is too vague for the Court to determine whether it is a statement of fact or opinion. Specifically, Defendants contend Plaintiff has not alleged how the defamatory statement was made (orally or in writing), to whom the statement was made, the context in which the statement was made, or how the person or persons hearing or reading the statement reasonably understood the statement.

Under California law, when a plaintiff seeks damages for another’s words, such as in a defamation claim, those words “must be specifically identified, if not pleaded verbatim, in the complaint.” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612; see, e.g., Hecimovich v. Encinal Sch. Parent Teacher Org. (2012) 203 Cal.App.4th 450, 457; see also Gilbert v. Skyes (2007) 147 Cal.App.4th 13, 31.)

Plaintiff alleges Norgauer’s “statement” constitutes defamation per se. To establish a claim for defamation per se, Plaintiff must show that (1) Defendants made one or more of the statements to persons other than Plaintiff; (2) that these people reasonably understood that the statements were about Plaintiff; (3) that these people reasonably understood the statements to mean that Plaintiff was dishonest and unethical; and (4) that Defendants failed to use reasonable care to determine the truth or falsity of the statements. (Judicial Council of California Civil Jury Instructions (“CACI”) 1704.)

The Court finds Plaintiff’s allegations are insufficient. There are no allegations regarding how the statement was made, what specifically was stated, how the statement was understood, or that Defendants failed to use reasonable care to

determine the truth or falsity of the statement. Plaintiff has also failed to plead the context of the statement to permit Defendants or the Court to discern whether it is a statement of opinion or statement of fact.

Plaintiff relies on the cases of Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818 and Schessler v. Keck (1954) 125 Cal.App.2d 827, for the proposition that less particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense. However, the facts in Bradley and Schessler involved a more specific pleading of the defamatory statement as well as a cause of action for civil conspiracy to defame.

The Court notes the fact that Plaintiff did not allege the identity of the recipients of the communication is not fatal to his claim. Defendants have not cited to any legal authority that imposes such a pleading requirement. Plaintiff’s allegation that the statement was published within and without Fulcrum is sufficient.

The demurrer on the basis that Plaintiff has failed to allege facts sufficient to constitute defamation is SUSTAINED with leave to amend as this is the first challenge to the pleading.

Plaintiff shall file and serve a First Amended Complaint no later than March 21, 2018. Defendants’ response shall be filed and served within 30 days of service of the amended pleading, 35 days if served by mail.