Case Name: Emily Miggins v. Compass Group North America, a Corporation, dba Bon Appetit Management Co., et al.
Case No.: 1-14-CV-258626
Demurrers to the First Amended Complaint of Plaintiff Emily Miggins
This is a wrongful termination and retaliation action. On March 11, 2014, Plaintiff filed a First Amended Complaint (“FAC”), now the operative pleading, alleging the following causes of action: (1) Violation of California Labor Code section 1102.5; (2) Wrongful Termination in Violation of Public Policy; and (3) Defamation.
On April 3, 2014, Defendant filed the motion presently before the court: a demurrer to the first, second, and third causes of action in the FAC.
I. Demurrer by Defendant Compass Group North America, a Corporation, dba Bon Appetit Management Company
Defendant’s request for judicial notice submitted with its reply papers is GRANTED. (See Evid. Code § 452, subd. (c); see also Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31-37 [discussing categories of documents that constitute cognizable legislative history for purposes of judicial notice].)
A. First Cause of Action (Violation of Lab. Code § 1102.5)
With respect to the first cause of action [violation of Lab. Code § 1102.5], Defendant argues that Plaintiff fails to allege facts showing that she engaged in protected activity under the statute.
“Labor Code section 1102.5 is a whistleblower statute, the purpose of which is to encourage workplace whistle-blowers to report unlawful acts without fearing retaliation. To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287-288 [internal citations and quotation marks omitted].) “Protected activity is the disclosure of or opposition to a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. In other words, section 1102.5 of the Labor Code requires that to come within its provisions, the activity disclosed by an employee must violate a federal or state law, rule or regulation.” (Edgerly v. City of Oakland (2012) 211 Cal.App.4th 1191, 1199 [superseded by statute on other grounds in Howard v. Contra Costa County (N.D. Cal. 2014) 2014 U.S. Dist. LEXIS 26908] [citations and quotation marks omitted].)
Plaintiff’s first cause of action appears to be based on a violation of Labor Code section 1102.5, subdivision (c). (See FAC at ¶ 43; Plaintiff’s OPP at pp. 1, 5-7.) That section provides that: “An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (Lab. Code § 1102.5, subd. (c).)
Here, Plaintiff alleges that Defendant instructed her to deliver a false statement to third parties regarding the company’s business practices with respect to its chicken meat. (See FAC at ¶¶ 29, 41 and 43.) In response, Plaintiff declined to give the false statement as it constituted an unlawful practice. (Ibid.) Paragraph 45 of the FAC alleges that the practices she opposed violate a variety of statutes including fraud, false advertising, and unfair competition.
Accordingly, Defendant’s demurrer to the first cause of action on the ground that it fails to state a claim is OVERRULED.
B. Second Cause of Action (Wrongful Discharge in Violation of Public Policy)
Plaintiff’s second cause of action is a claim for wrongful discharge in violation of public policy. In California, an employer may be subject to tort liability if it terminates an employee in violation of a fundamental public policy. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1147.) To sustain a claim for wrongful termination, the underlying public policy must be (1) supported by either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than merely serving the interests of individuals; (3) well-established at the time of plaintiff’s discharge; and (4) “fundamental” and “substantial.” (Stevenson v. Sup. Ct. (1997) 16 Cal.4th 880, 890.)
Plaintiff’s second cause of action is based on a variety of statutes that include Labor section 1102.5 as well as others for fraud, false advertising, and unfair competition. (See FAC at ¶ 54.) The opposition cites to Collier v. Sup. Ct. (1991) 228 Cal.App.3d 1117, where the plaintiff alleged he was terminated because he reported possible illegal conduct of other employees to the defendant employer. (Id. at p. 1120.) The trial court sustained the defendant’s demurrer to the plaintiff’s first amended complaint. (Ibid.) The appellate court reversed, holding that “an employee who is terminated in retaliation for reporting to his or her employer reasonably suspected illegal conduct by other employees that harms the public as well as the employer, has a cause of action for wrongful discharge [in violation of public policy]”. (Id. at pp. 1119-1120.) Similarly, Plaintiff alleges that she was terminated in retaliation for making complaints to Defendant about misrepresentations it was disclosing to the public about its food sourcing practices. (See FAC at ¶¶ 26, 27, 31, 52, and 54.) Such allegations are sufficient to state a claim for wrongful termination in violation of public policy and must be accepted as true on demurrer. (See Olson v. Toy (1996) 46 Cal.App.4th 818, 823 [for purposes of demurrer, the court must accept the allegations as true].)
Therefore, Defendant’s demurrer to the second cause of action on the ground that it fails to state a claim is OVERRULED.
C. Third Cause of Action (Defamation)
“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.)
With respect to the third cause of action [defamation], Plaintiff alleges the following statements:
- Defendant Maisie Greenawalt falsely claimed to defendant Bonnie Powell, Patricia Dozier, and others that Plaintiff was not competent in performing her job (FAC at ¶ 30);
- After Plaintiff was terminated, Powell made defamatory remarks about Plaintiff to Cassie Roth and other persons, including but not limited to blaming Plaintiff for causing poor relations between Defendant and certain small strawberry farms (FAC at ¶ 37); and
- Plaintiff’s former subordinate, Theresa Varvir, within the course and scope of her work duties, would regularly make false remarks attacking Plaintiff’s professional competence to Greenawalt, Patricia Dozier, Cassie Roth, and other persons (FAC at ¶ 38).
On demurrer, Defendant makes the following arguments: (1) the defamation claim is uncertain; (2) the alleged statements are privileged; and (3) the alleged statements are opinions and thus not actionable.
1. Uncertainty
With respect to the demurrer for uncertainty, Defendant argues that: (1) Plaintiff fails to plead the specific comments made by defendant Greenawalt or the context they were made; and (2) Plaintiff fails to allege the context for the comments by defendant Powell and Varvir.
In general, “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.) To the extent that Defendant wants to know the time, place, and context of the alleged comments, it may utilize modern discovery tools in preparing a defense. (See Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [there is no need to require specificity in the pleadings because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading].) Also, to the extent that Defendant argues that the FAC fails to allege whether the defamatory statements are oral or written, Plaintiff’s defamation claim clearly shows it is based on oral and written communications. (See FAC at ¶ 62.) Given these allegations, the court finds that the defamation claim is not sufficiently vague or ambiguous to support a demurrer for uncertainty.
Therefore, Defendant’s demurrer to the third cause of action on the ground of uncertainty is OVERRULED.
2. Interested Person Privilege
Defendant also argues that there is no basis for a defamation claim as the alleged statements are privileged. “Section 47, subdivision (c) extends a conditional privilege against defamation to statements made without malice on subjects of mutual interests. This privilege is recognized where the communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest. The interest must be something other than mere general or idle curiosity, such as where the parties to the communication share a contractual, business or similar relationship or the defendant is protecting his own pecuniary interest. Rather, it is restricted to proprietary or narrow private interests.” (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 287 [internal citations and quotation marks omitted].)
Here, the alleged defamatory statements appear to be related to Plaintiff’s job performance with the corporation. (See FAC at ¶¶ 30, 37, and 38.) Courts have found that “communications made in a commercial setting relating to the conduct of an employee have been held to fall squarely within the qualified privilege for communications to interested persons.” (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995.) In Deaile v. General Telephone Co. (1974) 40 Cal.App.3d 841, cited by Defendant, the appellate court held that an employer may publish to his employees the reasons for termination of another employee, the rationale for the publication being the employer’s economic interest in clarifying its policies and preventing future abuses of those policies. (Id. at p. 849.) Similarly, in Williams v. Taylor (1982) 129 Cal.App.3d 745, also cited by Defendant, communications relating to dishonesty of a former employee made by an officer and a manager of a body shop to insurance adjustors who normally referred business to the shop were protected by a qualified privilege, because the speakers were not only protecting their own interests, but those of the insurance adjustors who were in the habit of referring clients to the shop. (Id. at pp. 751-752.)
However, the conditional privilege may be lost if the defendant abuses the privilege by excessive publication or the inclusion of immaterial matters which have no bearing upon the interest to be protected or if the uttered statements are actuated by malice. (See Deaile v. General Telephone Co. of California, supra, 40 Cal.App.3d at p. 847.) With respect to malice, “the malice necessary to destroy a qualified privilege is actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person. Malice may also be established by a showing that the publisher of a defamatory statement lacked reasonable grounds to believe the statement true and therefore acted with reckless disregard for plaintiff’s rights.” (Cuenca v. Safeway San Francisco Employees Fed. Credit Union, supra, 180 Cal.App.3d at p. 997.) Here, the interested person privilege is not evident from the face of the pleading because Plaintiff has alleged that the statements at issue were made with malice. (See FAC at ¶¶ 60, 62, and 67.) The moving papers do not challenge Plaintiff’s allegations with respect to malice on demurrer. Thus, whether the common interest privilege applies in this case cannot be decided as a matter of law on demurrer.
3. Opinion
Finally, Defendant argues that the alleged defamatory statements constitute opinions and thus are not actionable. In opposition, Plaintiff argues that the defamatory assertions about her job performance are statements of fact.
“There can be no recovery for defamation without a falsehood. Thus, to state a defamation claim that survives a First Amendment challenge, plaintiff must present evidence of a statement of fact that is provably false. Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot reasonably be interpreted as stating actual facts about an individual. Thus, rhetorical hyperbole, vigorous epithet[s], lusty and imaginative expression[s] of contempt, and language used in a loose figurative sense have all been accorded constitutional protection.” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809 [internal citations and quotation marks omitted].) The dispositive question is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion. (Ibid.)
“To ascertain whether the statements in question are provably false factual assertions, courts consider the totality of the circumstances. First, 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. This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.” (Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th at pp. 809-810 [internal citations and quotation marks omitted].)
“The crucial determination of whether an allegedly defamatory statement constitutes fact or opinion is a question of law for the court and therefore suitable for resolution by demurrer. If the court concludes the statement could reasonably be construed as either fact or opinion, the issue should be resolved by a jury.” (Campanelli v. Regents of the Univ. of Cal. (1996) 44 Cal.App.4th 572, 578 [internal citations omitted].)
Here, Defendant argues that the alleged assertions by Greenawalt, Powell, and Varvir constitute merely nonactionable statements of opinion. In support, Defendant relies on Jensen v. Hewlett-Packard Co. (1995) 14 Cal.App.4th 958 where the appellate court held that comments made on a performance evaluation are non-actionable statements of opinion, “unless an employer’s performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics.” (Id. at p. 965.) The court reasoned that the word “evaluation” denotes opinion, not “fact” and that the purpose of the document was “as a management tool for examining, appraising, judging, and documenting the employee’s performance.” (Id. at p. 970.)
By contrast, it is not clear that the alleged defamatory statements in this case originate in the context of a performance evaluation. Furthermore, Jensen did not address the sufficiency of allegations in a complaint at the demurrer stage. Rather, that decision was based on an appeal of a judgment from nonsuit following the court’s consideration of evidence which is not the case on demurrer. (See Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice].)
Defendant also relies on Campanelli, where the appellate court held that the allegedly defamatory statements were non-actionable opinions where a university official made a statement quoting the father of a basketball player that he “felt” the coach (the plaintiff in the action) was putting so much pressure on his son that it was making him “physically ill.” (Campanelli v. Regents of the Univ. of Cal., supra, 44 Cal.App.4th at p. 579.) The court stated that the word “felt” indicated an opinion, and that in light of the highly charged atmosphere surrounding the coach’s termination, the statement could only be taken as “a subjective assessment based on parent intuition or colorful hyperbole over [the coach’s] behavior, but cannot be construed as intending to convey a verifiable assertion regarding his son’s health.” (Ibid.)
Even though Campanelli was decided on a demurrer, it is not persuasive authority on these allegations. Whether or not Plaintiff was competent in performing her job or caused poor relations with the strawberry farms could be construed as assertions of fact. Such statements do not appear to be the sort of subjective statements at issue in Campanelli. In fact, Plaintiff alleges that she received excellent performance reviews throughout her tenure with Defendant. (See FAC at ¶ 33.) Ultimately, a trier of fact may conclude that, given her good performance reviews, the alleged statements were false and made in bad faith. Moreover, unlike Campanelli, absent from this pleading is any context for the alleged defamatory statements which might assist the court in determining as a matter of law whether such allegations constitute opinions or statements of fact. Therefore, dismissal of the defamation claim on the basis that it is an opinion is unwarranted at this stage of the case.
Accordingly, Defendant’s demurrer to the third cause of action on the ground that it fails to state a claim is OVERRULED.
II. Demurrer by Defendant Maisie Greenawalt
Defendant Greenawalt filed a separate demurrer to the third cause of action [defamation] in the FAC which addresses the same issues raised on the demurrer by the corporation. Therefore, for the reasons stated above, Greenawalt’s demurrer to the third cause of action is OVERRULED.
III. Demurrer by Defendant Bonnie Powell
Defendant Powell filed a separate demurrer to the third cause of action [defamation] in the FAC which addresses the same issues raised on the demurrer by the corporation. Therefore, for the reasons stated above, Powell’s demurrer to the third cause of action is OVERRULED.
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