2012-00119147-CU-DF

Elizabeth Pierce vs. Anthony Coleman

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Kubicek, Matthew W.

Defendant Anthony Coleman’s (“Coleman”) motion for summary judgment, or in the
alternative, summary adjudication is ruled upon as follows.

Plaintiff Elizabeth Pierce alleges that her former co-worker Coleman told third persons
that Pierce was a witch, a Satanist, or otherwise a moral and social deviant. Both
Plaintiff and Coleman worked together at the State of California Office of the CIO –
Office of Technology Services, now known as California Technology Agency.

Pierce has pled two causes of action against Coleman for slander per se and
intentional infliction of emotional distress (“IIED”).

Exhaustion of Administrative Remedies

Coleman argues that Plaintiff failed to exhaust her administrative remedies because
she did not file a Tort Claim pursuant to Gov’t Code §950.2.

Plaintiff does not dispute that she did not file any claim with the Victim Compensation
and Government Claims Board from March 1, 2008 to March 21, 2013 regarding the
allegations contained in her complaint.

Pursuant to Gov’t Code §950.2, a cause of action against a public employee “for injury
resulting from an act or omission in the scope of his employment as a public employee
is barred if an action against the employing public entity for such injury is barred under
Part 3 (commencing with Section 900) of this division or under Chapter 2 (commencing
with Section 945) of Part 4 of this division.” (Gov’t Code §950.2.)

Coleman’s argument appears to be that because his statements were only made in
connection with a worker’s compensation proceeding, Plaintiff was required to file a
Tort Claim Act. As discussed below, however, Plaintiff has demonstrated a triable
issue of material fact as to whether Coleman made statements outside of the worker’s
compensation proceeding. Coleman, therefore, has failed to satisfy its initial burden to
show that Plaintiff’s injuries resulted from an “act or omission” made in the scope of
Coleman’s employment as a public employee.

Slander
Defendant moves for summary adjudication of the slander cause of action on the
grounds that Coleman’s statements were made in connection with a worker’s
compensation proceeding and are absolutely privileged.

In opposition to the motion, Plaintiff disputes that Coleman only made statements in
connection with the worker’s compensation proceedings. Plaintiff proffers the following
deposition testimony of Vaso Karras, a co-worker to both Pierce and Coleman:

Q. Okay. And commented to you that he felt Elizabeth’s beliefs were Satanic?

A. Yes.

(Deposition of Vaso Karras, 32:19-21.)

Plaintiff also proffers the deposition testimony of another co-worker, Pamela Haase.
Ms. Haase testified that during a Bible Study meeting, Coleman stated that “there are
people in this office who practice witchcraft.” (Deposition of Pamela Haase, 9:14.)
While Coleman did not specifically mention Plaintiff, Ms. Haase “would probably guess
that it was her.” (Id.)

The issue presented here (although neither party has briefed the issue) is whether
these statements were opinion or provably false assertions of fact. “Statements of
opinion which imply a false assertion of fact are actionable.” (Overhill Farms, Inc. v.
Lopez (2010) 190 Cal. App. 4th 1248, 1260.)

“In determining whether a statement declares or implies a provably false assertion of
fact, courts apply the totality of the circumstances test. “Under the totality of the
circumstances test, ‘[f]irst, the language of the statement is examined. For words to be
defamatory, they must be understood in a defamatory sense … . Next, the context in
which the statement was made must be considered.’ ” Whether a challenged
statement “declares or implies a provable false assertion of fact is a question of law for
the court to decide, unless the statement is susceptible of both an innocent and a
libelous meaning, in which case the jury must decide how the statement was
understood.” Overhill Farms, Inc. v. Lopez (2010) 190 Cal. App. 4th 1248, 1261
[internal citations omitted].)

As the Court noted above, neither of the parties have briefed the above issue.
However, the Court finds that the statements are susceptible of both an innocent and a
libelous meaning. In particular, the statement that Coleman “felt Elizabeth’s beliefs
were Satanic” could be considered an innocent opinion or also libelous statement.
Thus, the jury must decide how the statement was understood.

Plaintiff has demonstrated at triable issue of material fact. Accordingly, the motion for
summary adjudication on the slander cause of action is DENIED.

Defendant’s objections to the Declaration of Elizabeth Pierce are OVERRULED.

Defendant’s objections to the Declaration of Douglas Watts are SUSTAINED.

Defendant’s objections to the Deposition of Michael Benedetti are SUSTAINED.

Defendant’s objections to the Deposition of Vaso Karras are OVERRULED.

Defendant’s objections to the Deposition of Pamela Haase are OVERRULED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required