Motion by Defendants for Summary Judgment/Summary Adjudication of Issues:

The motion is denied. There are triable issues of material fact as indicated below.

1. Wrongful Disclosure:

Defendants contends there was no disclosure by Shipma, and that plaintiff’s voluntary disclosure of her bipolar condition to certain employees shows that she did not conduct herself in a manner consistent with an actual expectation of privacy. (Issue 1; – UF 1, 2, 5-31, 34-36, 41, 44, 46, 51,61 and Issue 4, 5 and 6- UF 2, 33-52, 56-61.)

(a) As to the denials by Shipma and the other employees, plaintiff has presented evidence sufficient to create a triable issue of material fact. (RP Separate Statement, Fact Nos. 20-27.) The Plaintiff has presented evidence which establishes that Elizabeth Gurrola, who frequented the title department as part of her job, testified concerning plaintiff’s co-workers talking about plaintiff having “mental issues”, with one in particular, Karen Lau, referring to plaintiff being “bipolar”. Elson declaration Ex. A, Gurrola depo, pp. 35:17-36:5; 37:01-038:12; 40:21-041:09; 42:5-43:15; 45:20-47:11 and 53:22-54:07. Evidence Code section 411 provides that “[e]xcept where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.”

(b) The Plaintiff has presented evidence that when deposed, Lautzenheiser denied that she ever told Gurrola that defendant Shipma told Lautzenheiser that plaintiff was out on leave for “mental issues”, and Lautzenheiser claimed to be “positive” of this [Elson dec., ex. B, August 20, 2009 Lautzenheiser depo, pp. 29:3-10, 30:2-14, 31:6-15, 31:25-32:8, 32:20-33:3].

Lautzenheiser testified she is positive that she never heard anything about plaintiff being bipolar from anyone at work [Elson dec., ex. C, Karen Lau August 20, 2009, depo, pp. 34:24-35:7], she never told anyone at work that plaintiff was bi-polar [ibid., pp. 35:3-18, 36:21-37:1, 38:12-18], and Lautzenheiser was also positive the only things she ever heard about plaintiff’s medical or psychiatric conditions was that plaintiff had gall bladder surgery and a low potassium [ibid., pp. 38:19-39:1].

(c) As to plaintiff’s alleged voluntary disclosure, this is insufficient to meet Moving Partys’ initial burden. The fact that Ignat confined in workplace friends Dave Krajec and Carol Pena-Grey and with Shipma and Errington in a closed door meeting that she was depressed is not fatal to the case. “Talking to selected individuals does not render private information public.” Times-Mirror Co. v. Superior Court (1998)198 Cal.App.3d 1420, 1427.

(d) There is a material issue of triable fact regarding whether the Plaintiff’s disclosure of being bipolar to certain persons within her zone of privacy, erased the boundaries of that zone. The Plaintiff has presented facts which establish that both Shipma and Errington admit that the summer 2008 meeting with plaintiff took place behind closed doors [RJN #1, Shipma dec. in support of the 2009 motion, ¶18; Errington dec. in support of the motion, ¶13]. Additionally, the Plaintiff has presented facts which establish that Carol Pena-Grey did not share plaintiff’s disclosure of being bipolar with anyone else because Pena-Grey understood it was private [Elson dec., ex. G, July 9, 2009, Carol Pena-Grey depo pp. 46:21-47:18, 48:4-24].

The Plaintiff has presented evidence that she also shared this information with David Krajec, a friend of plaintiff’s from the workplace gym who worked for Taco Bell. The Plaintiff has presented evidence that he testified that during 2007 she told him in confidence of her being bipolar, and he maintained that information in confidence as he recognized it was not appropriate to share it with others [Elson dec., ex. F, July 9, 2009 depo of Dave Krajec, pp. 6:12-13, 8:3-8, 8:22-9:4, 16:3-17:23, 18:24-19:24, 20:10-18]. A such, the Plaintiff has presented sufficient evidence to create a material issue of triable fact regarding whether there was a public disclosure by Shipma, and whether the plaintiff’s voluntary disclosure of her bipolar condition to certain employees shows that she did not conduct herself in a manner consistent with an actual expectation of privacy.

2. Offensive Disclosure:

Defendants also contend that the alleged disclosure was not highly offensive to a reasonable person. (Issue 2; UF 2, 5-16, 32-48, 51, 53-61, 63 and 64.) The Defendant asserts that there is “nothing uncomplimentary or discreditable” about the alleged communication itself. Plaintiff does not allege that Ms. Shipma used any offending or derogatory language in her supposed communication about Plaintiff. (Req. for Jud. Not., Ex. 1). The Defendant’s argument is not convincing or persuasive. The allegation is that the Defendant Shipma told people that Plaintiff was bi-polar and was out of work on mental issues to which the Plaintiff asserts at least one individual asked if she would “go postal”. [Elson dec., ex. I, June 2, 2009 Ignat depo, pp. 111:24-112-2 and 130:18-24] As such, the Plaintiff has presented evidence which creates a material issue of triable fact regarding whether the disclosed information was highly offensive to a reasonable person.

3. Damages and Causation:

Defendant argues that the Plaintiff cannot establish that Defendant Mary Shipma’s alleged conduct was a substantial factor in causing Plaintiffs harm and any damages are speculative as a matter of law. (Issues 3 and 8 – UF 2, 61-78.) The defendants have not sustained their initial burden of establishing that damages are speculative under the facts of this case. The allegations in the complaint provide that plaintiff suffered embarrassment, shame, humiliation, anxiety and emotional stress. [Complaint at paragraph 19]. The defendants have not presented any evidence to contradict these alleged damages. The defendants’ arguments that plaintiff cannot establish causation fail because it is quite reasonable that the ostracizing suffered by the plaintiff, as alleged and supported by the facts presented in opposition to the motion, would result in the damages alleged in paragraph 19 of the complaint. Additionally, “causation is generally a question of fact for the jury,” Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 520, “Cause in fact, as well as proximate cause, is ordinarily a fact question for the jury,” Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, at 780.

4. Punitive Damages:

Defendants contend the evidence does not support punitive damages. Defendants argue that the Plaintiff cannot establish by clear and convincing evidence that either Defendant Shipma or Yum! Brands, Inc. acted with oppression, fraud or malice. (Issues 9 and 10 – UF 2, 5-16, 61, 63-68, 78-80.) “Evidence that the decision maker attempted to hide the improper basis with a false explanation also supports the jury’s determination that the conduct was willful and in conscious disregard of Ms. Cloud’s rights.” Cloud v. Casey (1999) 76 Cal.App.4th 895, 912. If the jury believed Defendant fabricated evidence about the disclosure, this finding could conceivably support malice and then punitive damages.

5. Liability of Defendant Yum! Brands, Inc.:

Defendant argues that the Plaintiff cannot establish that Defendant Yum! Brands, Inc., a holding company, authorized the alleged public disclosure. (Issue 7 – UF 1-10, 14-16,64, 67, 68 and 80.) The Defendant argues that any claim of vicarious liability between Yum! Brands, Inc. and YRSG, Ms. Shipma’s employer, is futile because (i) Plaintiff does not allege either an alter ego theory, or integrated enterprise theory in the Complaint (UF 80; Req. for Jud. Not, Ex. 1.); (ii) and there is no admissible evidence establishing the existence of either an alter ego, or an integrated enterprise.

Moving Partys ’ argument based on the scope of the pleadings fails. The complaint here alleges that plaintiff and Shipma were employees of MP Yum, not YRSG. (Complaint at Paras. 2 and 3.) Whether MP and YRSG are an “integrated enterprise” is a question of fact for the trier of fact.

The Plaintiff has presented evidence which establishes that “Christian L. Campbell, 58, is Senior Vice President, General Counsel, Secretary and Chief Franchise Policy Officer for YUM” [Elson dec., ex. 69, p. 1]. Interestingly, the Plaintiff has also presented evidence which establishes that YRSG’s Statement of Information filed with California lists “Christopher L Campbell” as YRSG’s CEO [Elson dec., ex. 68, pp. 2-3]. There is at least a material issue regarding whether they are the same person.

Additionally, Plaintiff has presented facts which establish that Yum! Brands operated as one “team.” When plaintiff started in May of 2005, she was given a letter stating “Welcome to the Yum! Brands, Inc. team!” [Elson dec., ex. 12; Ignat dec., ¶4, p.2:4-5]. Ignat’s first performance appraisal, done in January of 2006, states “Melissa joined Yum! Brands after temping in the Title Dept.” [Elson dec., ex. 2; Ignat dec., ¶3, p.2:1-3]. When congratulating Ignat on her third anniversary of employment, Shipma sent an email referring to Ignat’s “3rd Service Anniversary with Yum! Brands, Inc.” [Elson dec., ex. 56; Ignat dec., ¶6, p.2:9-11].

When defendant Yum! proposed a separation agreement with plaintiff in the fall of 2008, letters concerning her separation came from Kevin Weissman as “Director, Human Resources” for “Yum! Brands, Inc.” [Elson dec., ex. 58, ex. 65; Ignat dec., ¶¶7-8, p.2:12-17], though Weissman has testified he never worked for any Yum! Brands, Inc. entity other than Taco Bell Corporation [Elson dec., ex. J, pp. 8:23-9:20].

There is substantial evidence to invoke the “integrated enterprise” doctrine. The test “has four factors: interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control.” Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 737. This issue should go to the jury.

Plaintiff’s argument that Defendant waived this issue by failing to raise it in their Answer lacks merit. Plaintiff is required to prove as part of her prima facie case that defendants committed the alleged tort; defendants are not required to allege it as an affirmative defense.

6. Requests for Judicial Notice:

(a) Defendants’ Request for Judicial Notice:

Defendants’ request for judicial notice of the complaint, is granted as proper under Ev. 452(d)(1) [court records].

(b) Plaintiff’s Request for Judicial Notice:

Plaintiff’s request for judicial notice of the declaration of Defendant Shipma submitted in support of the defendants’ 2009 motion for summary judgment in particular the assertions in ¶¶20-22, p.3, line 27 through p.4, line 5., is granted as proper under Ev. 452(d)(1) [court records].

7. Objections to Evidence:

(a)Defendant’s Objections to Plaintiff’s Evidence:

Objections 1-7 to the Declaration of Plaintiff Melissa Ignat are each overruled. The testimony is not irrelevant and the documents authenticated by the testimony are not hearsay as they are not offered for the truth of the matters asserted within them or are admissible as under Evidence Code sections 1220,1221, 1224, 1241, or 1250.

(b) Objections 1-3 and 15 to the Declaration of John Elson are each overruled.
The declaration authenticates several condensed deposition transcripts. The deposition testimony authenticated is not irrelevant. Declarant who is the Plaintiff and Responding Party’s attorney was present at the depositions and thus is competent as to both foundation and authentication. Objection 4 to the Declaration of John Elson are overruled. The attorney can authenticate the fact that the exhibits were filed by the Defendant in this case. The documents have relevancy.
Objections to 5 – 14 are sustained. The declarant has not provided a foundation to authenticate the documents. The declarant has not provided any personal knowledge regarding the documents he attempts to authenticate.
Objections 16 – 18, 20 and 21 are overruled. The documents have been authenticated as produced by the defendant in response to discovery in this case.

Objection 19 is overruled. The declaration has supported the letter with a proper foundation. The letter is authenticated. There is nothing speculative, vague, ambiguous or irrelevant about the letter. It is not hearsay since, it is not offered for the truth of the matters asserted within the letter. It is the receipt of the letter on Yum! Brands letterhead that is being offered.

Objection 22 – 24 are sustained as hearsay and Plaintiff has provided no authority for their admission.

Objection 25 is overruled. The testimony is not irrelevant, speculative or hearsay.

The Responding Party shall give Notice.