Case Number: 18STCV04960 Hearing Date: May 13, 2019 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

justin ray,

Plaintiff,

vs.

millennium biltmore hotel-los angeles, et al.,

Defendants.

Case No.:

18STCV 04960

Hearing Date:

May 13, 2019

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT

Background

Plaintiff Justin Ray (“Ray”) filed this employment action against Defendants Millennium Biltmore Hotel-Los Angeles, Millennium Biltmore Hotels & Resorts, and Jack Russell on November 14, 2018. The Complaint asserts various FEHA causes of action as well as a cause of action for defamation.

Defendant M&C Hotel Interests, Inc. (erroneously sued as Millennium Biltmore Hotels & Resorts and Millennium Biltmore Hotel – Los Angeles) (“Defendant”) now demurs to the defamation cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and that it is uncertain. Ray opposes.

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. ((Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) A pleading is uncertain if it is ambiguous or unintelligible. ((Code Civ. Proc., § 430.10(f).) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ((Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Discussion

In support of the defamation cause of action, Ray alleges the following: Defendant accused Ray of poor work performance and incompetence during the course of his employment. (Compl., ¶ 58.) The statements were made in or about November 2017. (Compl., ¶ 59.) Ray was placed in a position in which he was required to disclose or self publish these statements and publications to third parties. (Compl., ¶ 59.) The statements were false and were used to legitimize Defendant’s wrongful intent to cause Ray’s termination. (Compl., ¶ 62; see also Compl., ¶ 9 [alleging that after Ray’s return from FMLA leave to undergo surgery for carpal tunnel syndrome, Ray’s manager and human resources director “launched a scurrilous campaign of harassment and false allegations of performance deficiencies against Plaintiff designed to effectuate his termination”].) The statements were made to Ray’s co-workers, prospective employers, and to other third parties. (Compl., ¶ 63.)

“Defamation is an invasion of the interest in reputation.” ((Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” ((Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) Statements of fact are actionable, while statements of opinion are not. (Id. at p. 1370.) However, “where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation.” (Ibid.) “To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicates or implies a provably false statement of fact.” (Ibid.)

Defendant contends that the defamation cause of action is uncertain because it is unclear what specific statements were made, the date such statements were published or uttered, the identity of the speaker, and the identity of the recipient. The Court does not find that these defects render the defamation cause of action unintelligible or ambiguous. Rather, these defects go to whether Ray has stated sufficient facts to constitute a cause of action for defamation. “The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” ((Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31.) Here, Ray alleges that Defendant accused him of “poor work performance and incompetence during the course of his employment.” (Compl., ¶ 58.) Although the statement at issue is not pleaded verbatim, the Court finds that it is sufficiently identified. Moreover, Ray alleges that the statement was made in or around November 2017 to his co-workers and prospective employers.

Next, Defendant contends that the defamation cause of action must fail because the statements made about Ray’s job performance are merely opinion and not actionable. ((See Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965 [“[W]e hold that unless an employer’s performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior [Citation], it cannot support a cause of action for libel.”].) Here, Ray alleges that Defendant falsely accused him of, at least, incompetence. Per Jensen, a false accusation that an employee lacks “the inherent competence, qualification, capability or fitness to do his job” is not a non-actionable statement of opinion. ((Id. at pp. 970-971.) Further, unlike in Jensen, Ray does not allege that the statement about his job performance was part of a performance evaluation.

Finally, Defendant argues that the statement about Ray’s job performance is privileged. An employer can claim a conditional privilege under Civil Code section 47, subdivision (c) to publish criticism of an employee to others within the company or to interested outsiders. ((See, e.g., Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 845-846 [in order to correct rumored misinformation, managers informed other employees that plaintiff had been forced to retire because she had committed a breach of ethics and falsified records “akin to thievery”].) The privilege is lost by actual malice, such as where the publisher lacks reasonable grounds for belief in the truth of the publication, reliance on sources known to be unreliable, or motivation by anger, hostility, or bias against the plaintiff. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 257-258.) “A general allegation of malice will not suffice; plaintiff must allege detailed facts showing defendant’s ill will towards him.” ((Robomatic, Inc. v. Vetco Offshore (1990) 225 Cal.App.3d 270, 276.) Here, Ray alleges that Defendant made the statement about his poor job performance and incompetence with actual malice. (Compl., ¶ 63.) Defendant contends that this allegation is too general and conclusory to overcome the conditional privilege. However, the Court notes that Ray also alleges that the statements were made to justify Ray’s termination and that the statement in response to Ray taking a medical leave. The Court finds that this allegation is sufficient to show ill will, anger, or hostility toward Ray, thereby overcoming the conditional privilege.

Conclusion

For the foregoing reasons, the Court overrules Defendant’s demurrer to the seventh cause of action for defamation of Ray’s Complaint.

The Court orders Defendant to file and serve their Answer within 10 days of service of this Order.

Ray is ordered to give notice of this Order.

DATED: May 13, 2019 ________________________________

Hon. Teresa A. Beaudet