Filed 10/22/19 Kim v. Samsung SDS America, Inc. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JOOHONG KIM,

Plaintiff and Appellant,

v.

SAMSUNG SDS AMERICA, INC.,

Defendant and Respondent.

H044775

(Santa Clara County

Super. Ct. No. 1-15-CV283549)

Following the termination of his employment at respondent Samsung SDS America, Inc. (Samsung), appellant Joohong Kim brought suit against Samsung, alleging age and race discrimination under California’s Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), among other claims. Kim appeals a judgment entered in favor of Samsung following the trial court’s grant of summary judgment.

For the reasons explained below, we conclude the trial court erred in granting summary judgment and therefore reverse the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

A. Factual Background

Samsung builds and sells software systems. Kim began working at Samsung’s San Jose project delivery center in 2001 and took over as head of the delivery center in 2011 or 2012. In late 2012, Kim received notice that he would be transferred to a newly-created position as a client manager in Austin, Texas. Kim was told that this transfer was a promotion, he would be receiving a higher salary, and he would be elevated from “Director” to “Senior Director.” Kim’s job duties in Texas included providing support for the anticipated transfer of a project from another company to Samsung and enhancing Samsung’s business relationships with its affiliates. Samsung transferred Kim to the position in March 2013, but in September 2014 decided to eliminate the client manager position in Texas and to return Kim to San Jose, where he worked as a project manager at the same delivery center he previously supervised.

Soonpyo Kwon, Kim’s direct supervisor in San Jose and Austin, completed Kim’s 2014 performance evaluation, assigning Kim a “B” grade. The New Jersey-based director of Samsung’s human resources department, Hyunsung Kim (Hyunsung), subsequently modified the grade Kwon had assigned to Kim in the 2014 evaluation from a “B” to a “D.” Hyunsung did not consult with Kwon before lowering Kim’s grade.

By the end of 2014, Samsung had decided to terminate Kim’s employment. In January 2015, Hyunsung invited Kim to dinner and effectively gave Kim notice of his imminent termination, stating that if Kim resigned, Hyunsung would host a farewell party for him. During dinner, Hyunsung called Kim a “ ‘low performer’ ” and commented, “ ‘Do you have any children? How are they—how old are they? Oh, they’re all grown. Now you don’t have to spend the money on them. You are in a good place now.’ ”

Later that month, Kim met with Reshma Salian-George, a manager within the human resources department in San Jose, to discuss Kim’s anticipated termination. After this meeting, Salian-George wrote an e-mail to Hyunsung, reporting that Kim felt “humiliated” at being called a “low performer” by Hyunsung at the January 2015 dinner; Kim was “expecting severance pay and fair treatment from the company”; and Kim would not resign. In the e-mail, Salian-George stated that Kim’s case was “very sensitive” given the potential for a claim of age discrimination and that the goal should be for a “smooth transition to avoid legal trouble.” She advised Hyunsung that Samsung should follow its lay off policy for “position elimination for lack of work,” offer severance pay, and obtain a signed release of claims agreement from Kim.

Samsung terminated Kim’s employment in February 2015. At that time, Kim was 55 years old and the oldest project manager working at Samsung.

Salian-George conducted Kim’s exit interview and gave him a letter stating that he was fired due to “lack of work.” Later that day, Salian-George wrote an e-mail to Hyunsung summarizing Kim’s statements during his exit interview. Kim told Salian-George that he believed he had to either accept the Texas transfer or resign; Hyunsung confirmed the Texas move was an intentional signal to resign; Kim’s transfer back to California was “one sided”; Kim performed well heading the project delivery team, and it was profitable during his tenure; he was not given any work following his transfer back to California; he did not receive feedback on his performance evaluation; and he felt he was being treated unfairly and deserved a fair severance package. During his exit interview, Kim also informed Salian-George of two current openings at Samsung for which he believed he was qualified. In her e-mail to Hyunsung, Salian-George voiced concern about whether Kim’s assertion about the two openings was true, noting in a parenthetical that “we need to look into this.”

Shortly after his termination, Kim wrote an e-mail to Samsung’s chief executive officer, Sean Kae, reiterating Kim’s concerns that he had been fired for discriminatory reasons. Kae forwarded Kim’s e-mail to Hyunsung, who forwarded it to Salian-George to prepare a response. A few days later, Kae responded to Kim’s e-mail, stating that Samsung “did not have sufficient work” for him upon his return from Texas, and that Kim’s 2014 performance evaluation “was attributable to the lack of work, and not to any performance issue on [his] part.” During a deposition, Kae stated that, based on a conversation he had with Hyunsung following Kim’s termination, his understanding was that Hyunsung regarded Kim as an “old timer.”

B. Proceedings in the Trial Court

1. Kim’s Complaint

Kim sought and obtained a right-to-sue letter from the Department of Fair Employment & Housing. Kim filed a complaint against Samsung in July 2015 alleging age discrimination (Gov. Code, § 12940; first cause of action), race discrimination (Gov. Code, § 12940; second cause of action), wrongful termination in violation of public policy (third cause of action), defamation (fourth cause of action), and unfair competition (UCL claim) (Bus. & Prof. Code, § 17200; fifth cause action). Kim’s complaint also requested punitive damages.

In the general allegations portion of his complaint, Kim alleged that Samsung “ha[s] an unlawful pattern and practice of terminating employees, especially Korean-born management-level employees, at age 55,” which is the mandatory retirement age for many employers in South Korea. Kim’s complaint asserted that he began working for Samsung before his graduation from university in South Korea, and he was the oldest manager in Samsung when he was terminated. Kim alleged that, following his transfer back to the San Jose delivery center, Samsung “management failed and refused to assign projects to Mr. Kim and otherwise discriminated against him based on his age, national origin, or both.” The complaint also alleged that Samsung’s human resources department “interfered with the evaluation process and assigned the poor performance grade to create a false justification for terminating Plaintiff.” The complaint did not allege discrimination based on the elimination of Kim’s position in Texas or his transfer back to California.

2. Samsung’s Motion for Summary Judgment

Samsung moved for summary judgment or, in the alternative, summary adjudication as to all claims. It argued that Kim had raised no triable issues of fact as to the FEHA claims under all three steps of the burden-shifting framework set forth by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas); Kim’s failure of proof on the FEHA claims meant that his proof on the “derivative claims” for wrongful termination and unfair competition likewise failed; Kim failed to prove defamation as Samsung’s statements about his poor job performance were non-actionable opinions, and the allegedly defamatory statements had not been published to a third party; and there was insufficient evidence to support punitive damages pursuant to Civil Code section 3294.

Kim opposed Samsung’s motion for summary judgment, arguing, among other points, that Samsung’s motion relied on inadmissible evidence, and there were triable issues of fact as to his FEHA and defamation claims and on the issue of punitive damages. Kim filed evidentiary objections to the declarations submitted by Samsung in support of its motion for summary judgment, arguing hearsay, lack of foundation, and lack of personal knowledge.

3. Order Granting Summary Judgment

The trial court granted summary judgment in favor of Samsung on all claims, implicitly overruling Kim’s evidentiary objections. On the age and race discrimination claims, the trial court found that Samsung had presented admissible evidence demonstrating a legitimate, nondiscriminatory reason for Kim’s termination. In particular, the trial court found that Samsung had submitted evidence that it eliminated Kim’s client manager position in Texas for business reasons, and “there was no work to provide [Kim] after he was transferred to the Delivery Center in San Jose.” The trial court also found that Kim did not demonstrate triable issues regarding pretext or discriminatory animus, reasoning that Kim “fail[ed] to submit competent evidence that younger, similarly qualified workers were treated more favorably than he was.” The trial court granted summary adjudication of Kim’s statutory discrimination claims as well as his derivative wrongful termination and UCL claims.

As to Kim’s defamation claim, the trial court found that Samsung had met “its initial burden . . . by demonstrating that the statements at issue are opinions, rather than facts, and thus cannot form the basis for an actionable defamation claim.” The trial court therefore granted summary adjudication of Kim’s defamation claim. The summary judgment order did not expressly address, but effectively terminated, Kim’s punitive damages claim. The trial court subsequently entered judgment in favor of Samsung.

II. DISCUSSION

On appeal, Kim argues that the trial court erred in a number of respects. He challenges the admissibility of Samsung’s evidence in support of its summary judgment motion; the trial court’s determination that there were no triable issues of material fact as to Kim’s discrimination claims; the trial court’s legal conclusion that the allegedly defamatory statements were opinions and thus could not give rise to a claim for defamation; and the trial court’s rejection of Kim’s claim for punitive damages.

For the reasons set forth below, we conclude that Samsung met its burden of producing admissible evidence of a legitimate, nondiscriminatory business reason for Kim’s termination. However, we determine that triable issues of material fact preclude summary adjudication of Kim’s age and race discrimination claims, and the trial court therefore erroneously granted summary adjudication of Kim’s FEHA, wrongful termination, and UCL claims. We also conclude the trial court erred in finding as a matter of law that a statement of opinion cannot constitute actionable defamation and that Samsung’s arguments concerning self-publication and privilege misconstrue its affirmative burden of production as the party moving for summary judgment. Finally, we determine that the trial court should not have summarily adjudicated Kim’s request for punitive damages.

A. Standard of Review

Summary judgment is warranted where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law (Code Civ. Proc., § 437c, subd. (c)). (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Whether the trial court erred in granting a defendant’s motion for summary judgment is a question of law we review de novo. (Samara v. Matar (2018) 5 Cal.5th 322, 338.)

“In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to ‘decide whether the opposing party has demonstrated the existence of a triable, material fact issue.’ ” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.) “In ruling on the motion, the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom (id., § 437c, subd. (c)), and must view such evidence [citation] and such inferences [citation], in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

B. Discrimination Claims

Kim’s complaint alleges that Samsung discriminated against him based on his age (in his first cause of action) and on his race (in the second cause of action). The trial court’s order used the same analysis and evidence for both causes of action. This approach reflects the allegations made in Kim’s complaint—namely, that he was discriminated against for being of Korean national origin and 55 years or older. The parties on appeal similarly discuss Kim’s discrimination claims based on age and race together. In light of the evidence and arguments here, we follow the same approach.

With respect to claims of discrimination based on circumstantial evidence, “California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . .” (Guz, supra, 24 Cal.4th at p. 354, citing McDonnell Douglas, supra, 411 U.S. 792.) In this context, a defendant employer moving for summary judgment must “ ‘present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 (Serri).)

If the defendant employer elects to attack plaintiff’s prima facie showing under step one of McDonnell Douglas, the defendant employer must demonstrate that plaintiff’s claim “has no merit” by showing that the plaintiff both “does not possess” and “cannot reasonably obtain” necessary evidence. (Aguilar, supra, 25 Cal.4th at p. 854, emphasis omitted; see § 437c, subd. (o)(2).) Alternatively, the defendant employer may proceed under step two of the McDonnell Douglas presumption by producing admissible evidence of a legitimate, nondiscriminatory reason for the adverse employment action. (Guz, supra, 24 Cal.4th at pp. 355–356.)

“Once a defendant satisfies its initial burden, ‘the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.’ (Code Civ. Proc., § 437c, subd. (p)(2).) In the context of a defendant employer’s motion for summary adjudication of a discrimination claim, this means ‘the burden shifts to the [plaintiff] to “demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” ’ ” (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 738 (Abed).)

“Although summary judgment is no longer a disfavored procedure, ‘many employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper . . . [and] rarely appropriate for disposition on summary judgment, however liberalized it be.’ ” (Abed, supra, 23 Cal.App.5th at p. 739.)

We first examine Samsung’s contention that it satisfied its initial burden of showing that its decision to terminate Kim was based on legitimate, nondiscriminatory factors, and Kim did not satisfy his burden of showing a triable issue of material fact. We then address Samsung’s argument that it presented admissible evidence that one or more elements of Kim’s prima facie case is lacking.

1. Legitimate, Nondiscriminatory Reason

Samsung’s summary judgment motion asserted that it had a legitimate, nondiscriminatory reason for terminating Kim—namely, there was no work for him at the San Jose project delivery center. In support, Samsung submitted declarations from Hyunsung (the human resources director), Tiffanie Sterling-Talley (a human resources manager in New Jersey), Reshma Salian-George (a human resources manager in San Jose), Jina Park (a recruitment manager), and John Hong (one of its counsel of record). Kim’s objections to Samsung’s evidence, though not expressly ruled on by the trial court, are nevertheless preserved for appellate review. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.)

Having reviewed the evidence submitted by Samsung, we conclude that the declarations of Salian-George and Hyunsung presented sufficient admissible evidence that Samsung terminated Kim due to a lack of work at the San Jose delivery center. In particular, Salian-George’s declaration demonstrated personal knowledge that Kim lacked work in San Jose. Hyunsung was Samsung’s human resources director at the time of Kim’s termination and was personally involved in the decision to terminate him. Hyunsung’s declaration asserts that “there were no projects to assign to [Kim] to lead” in the delivery center and “[t]here was a lack of work to distribute within the Delivery Center.” We conclude these statements were sufficient to satisfy Samsung’s burden as to a legitimate, nondiscriminatory reason for Kim’s termination—namely, a lack of work at the San Jose delivery center.

2. Triable Issues of Material Fact

We now turn to whether triable issues of material fact exist as to the “ultimate issue”—“whether the employer acted with a motive to discriminate illegally.” (Guz, supra, 24 Cal.4th at p. 358, italics omitted.) Summary judgment may be granted only “if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Id. at p. 361; see also Aguilar, supra, 25 Cal. 4th at p. 843 [“in ruling on the motion [for summary judgment], the court must ‘consider all of the evidence’ ”].)

While liability should not be imposed simply because “the employer’s stated reasons . . . are found wanting,” the fact finder may permissibly “take account of manifest weaknesses in the cited reasons in considering whether those reasons constituted the real motive for the employer’s actions, or have instead been asserted to mask a more sinister reality.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Mamou).) For instance, “ ‘[E]vidence that the employer’s claimed reason [for the employee’s termination] is false—such as that it conflicts with other evidence, or appears to have been contrived after the fact—will tend to suggest that the employer seeks to conceal the real reason for its actions, and this in turn may support an inference that the real reason was unlawful.’ ” (Serri, supra, 226 Cal.App.4th at p. 863.)

We believe the evidence raises triable issue of material fact as to whether Samsung terminated Kim for discriminatory reasons, both because there are significant direct conflicts in the evidence and because a reasonable factfinder can draw competing inferences from it. For example, while a “lack of work” in Kim’s business unit could permit a rational inference of nondiscriminatory motive, Samsung presented no evidence about why Kim (among all the members of the delivery center in San Jose) was selected for termination. “Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release.” (Guz, supra, 24 Cal.4th at p. 358.) “Where these are issues, the employer’s explanation must address them.” (Ibid.)

Here, Kim’s declaration asserts that “[i]n [Kim’s] experience as a manager at [Samsung], the decision to terminate an employee was always made initially by the employee’s manager and not by HR.” He also asserts his personal knowledge that there were younger project managers who had been without projects for longer than Kim “but who were retained when [he] was terminated.” These assertions are sufficient to raise triable issues of material fact because a reasonable jury could credit Kim’s observations and rationally infer that Samsung’s “lack of work” justification was a pretext for discriminatory animus. Additionally, Samsung was the party with the power “to produce stronger and more satisfactory evidence” to support its “lack of work” assertion yet failed to do so. (See Evid. Code, § 412.)

Moreover, Samsung’s own evidence is susceptible to competing factual inferences as to whether Samsung’s proffered reason for Kim’s termination was legitimate or pretextual. Hyunsung’s declaration states that he and the chief financial officer decided to terminate Kim’s employment, that Kim “failed to create projects for himself,” “had not even pitched any proposals for projects,” and that “[t]here was a lack of work to distribute within the [d]elivery [c]enter.” These statements lead to a reasonable inference that Kim was terminated for performance-related issues contributing to the lack of work. However, Hyunsung’s assertions conflict with other portions of his declaration that give rise to a reasonable inference that Kim’s job duties did not include pitching proposals or creating projects since Kim was assigned to the “delivery team that built and installed” software services, not the sales team that sold those services.

Likewise, a reasonable factfinder could consider Kim’s assertion that he was not given any authority to generate new projects on his own and rationally take into account Samsung’s lack of corroborating evidence that creating work fell within Kim’s job duties. To the extent that Hyunsung meant to imply that Kim was fired because he did not meet job expectations, the record reflects contradictory evidence in the form of an e-mail from CEO Kae assuring Kim precisely the opposite. In his e-mail, Kae told Kim that his “review score was attributable to the lack of work, and not to any performance issue on your part.” In one of the e-mails sent by Salian-George to Hyunsung, she discusses the possibility of terminating Kim for not having any project assignments but then notes that “in [her] opinion it’s too late” to apply the “Employee Discipline policy” for “unsatisfactory job performance.” Kim points out that he was never disciplined for poor job performance and that his role as a “Customer Manager” was to “smooth relationships with senior management” at customer organizations and that “bringing in new business was not one of [his] duties or goals.”

In sum, a review of the record that was before the trial court when it ruled on Samsung’s summary judgment motion demonstrates triable issues of material fact whether Samsung in fact fired Kim because of the lack of work, or whether this reason was a pretext for discrimination. The determination of this ultimate fact, however, is for the jury and not the court to decide. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436 (King).) Therefore, the trial court erred in granting Samsung summary adjudication of the discrimination claims.

3. Kim’s Prima Facie Case of Discrimination

We turn now to the alternative basis on which Samsung sought summary adjudication—namely that Samsung carried its burden of showing that Kim cannot establish one of the elements of his cause of action. In particular, Samsung contends that it demonstrated that Kim does not possess and cannot reasonably obtain evidence that Samsung treated similarly situated individuals outside the protected class more favorably or that his termination occurred under circumstances suggesting a discriminatory motive.

If the defendant employer elects to undermine the prima facie case, it must demonstrate that the claim “ ‘has no merit,’ ” (Aguilar, supra, 25 Cal.4th at p. 849) by showing that the plaintiff both “does not possess” and “cannot reasonably obtain” evidence necessary to establish his or her cause of action. (Id. at p. 854, emphasis omitted; see § 437c, subd. (o)(2).) The “does not possess” element may be satisfied by simply “ ‘pointing out through argument’ ” the absence of evidence. (Aguilar, at pp. 854-855.) However, the “cannot reasonably obtain” element requires the affirmative presentation of either direct evidence “conclusively negat[ing] an element of the plaintiff’s cause of action” or circumstantial evidence “as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Ibid.)

“ ‘The prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.’ [Citation.] Its purpose is ‘to eliminate at the outset the most patently meritless claims’ [citation], and ‘[a] plaintiff’s burden in making a prima facie case of discrimination is not intended to be “onerous.” ’ ” (Abed, supra, 23 Cal.App.5th at p. 739.)

After reviewing the evidence in a light most favorable to Kim, we determine that Samsung should not have been granted summary adjudication on the ground that it carried its burden of demonstrating that Kim cannot establish one of the elements of his cause of action. We conclude that Kim presented sufficient evidence of his prima facie case, namely that he was a member of a protected class, performed competently, suffered an adverse employment action, and there are circumstances suggesting discriminatory motive.

We find unpersuasive Samsung’s argument that Kim’s declaration was insufficient as uncorroborated and self-serving. Criticism of Kim’s declaration as “self-serving” does not defeat its evidentiary competency because “[g]enerally, all evidence introduced by a party is ‘self-serving’ in that it is intended to support that party’s position.” (Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637, 653.)

We agree with Samsung that Kim’s declaration lacks specificity and relies largely on Kim’s personal knowledge. However, we conclude that neither of those facts renders the declaration inadmissible or inadequate to raise an issue of material fact. Kim’s long tenure with the company and his supervisory role at Samsung provide a foundation for the factual basis for his assertions and show that they rest on more than his “subjective beliefs” (King, supra, 152 Cal.App.4th at p. 433) about the reason for his termination.

The California Supreme Court has rejected an argument similar to that made by Samsung here. In Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, the Supreme Court affirmed the Court of Appeal’s conclusion that there were genuine issues of material fact such that summary judgment should not have been granted. (Id. at p. 1062.) The Supreme Court observed, “L’Oreal additionally asserts that [plaintiff’s] evidence is insufficient to support a reasonable belief that [the general manager’s] order was discriminatory, because her belief rests solely on her own subjective experience. Inasmuch as [plaintiff] had been a regional sales manager for many years and presumably was familiar with the company’s job requirements for sales associates, we believe that a trier of fact properly could find that, in light of [plaintiff’s] experience, her assessment that [the general manager’s] order represented disparate treatment on the basis of the sex of the sales associate was reasonable. Accordingly, on this record, we conclude that a reasonable trier of fact could find that [plaintiff] reasonably believed that [the general manager’s] order constituted sexual discrimination.” (Id. at p. 1045.)

Lack of corroboration may diminish the evidentiary weight the jury will afford Kim’s testimony, but it does not render the evidence in his declaration inadmissible. The weight to give Kim’s evidence must ultimately be determined by the jury, not a trial court on summary judgment nor a reviewing court on appeal. (Accord, Evid. Code, § 411 [“Except 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.”].) Therefore, Samsung has not carried its burden of demonstrating that Kim’s discrimination claim “has no merit,” (Aguilar, supra, 25 Cal.4th at p. 854) and we therefore reject Samsung’s contention that summary adjudication should have been granted because of deficiencies in Kim’s prima facie case.

Having concluded that the trial court erred in granting summary adjudication of Kim’s discrimination claims, we turn now to his remaining contentions.

C. Wrongful Termination and Unfair Competition Claims

Kim’s common law wrongful termination and statutory UCL claims derive from the same conduct as his FEHA discrimination claims. We therefore consider these claims together and reverse the trial court’s summary adjudication of Kim’s wrongful termination and UCL claims for the same reasons as the FEHA claims. (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1192, fn. 13 [reversing summary adjudication of wrongful termination claim as a consequence of reversal of FEHA discrimination claim, where both claims were “grounded in the same conduct”]; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1055, fn. 12 [UCL claim derivative of statutory discrimination claims].)

D. Defamation Claim

Kim’s complaint alleged “[t]he defamatory statements made by Defendants concerning Plaintiff included, but are not limited to, the 2014 Performance Evaluation and statements about Plaintiff’s supposedly poor job performance alleged above. On information and belief, the defamatory statements have been republished many times.” He further alleged that Samsung’s managing agents “falsely labeled Mr. Kim as a poor performer or otherwise tended to injure Mr. Kim’s reputation” and “caused these false statements to be republished to members of Mr. Kim’s professional community.”

The trial court granted summary adjudication to Samsung on this claim, deeming the statements at issue to constitute opinions, not facts, and concluding that an opinion cannot form the basis for a defamation claim. This was error because “an opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion.” (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471, internal citation omitted.)

Hyunsung’s comments about Kim being a ‘low performer’ did not convey an unprovable opinion but implied the possession of undisclosed, and provably false, defamatory facts. (See Mamou, supra, 165 Cal.App.4th at p. 728.) For instance, if a supervisor opines that a supervisee was a “low performer” on the basis that the supervisee failed to generate new business leads, this “opinion” implies certain facts about the scope of the supervisee’s job duties, and thus may be actionable if the supervisee proves that generating new business leads was not within those job duties. As “[a]n opinion based on a provably false fact” may nevertheless give rise to liability, summary judgment was improper as to Kim’s defamation claim. (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 688.)

Alternatively, Samsung argues that summary adjudication could be affirmed based on the publication requirement for a defamation claim. Arguing against Kim’s “self-publication” theory, Samsung argues “Kim has no evidence reflecting he was under a ‘strong compulsion’ to disclose [Hyunsung]’s alleged statements about his performance.” Samsung also argues the statements were protected by the absolute privilege under Civil Code section 47, subdivision (b) or the qualified privilege under Civil Code section 47, subdivision (c).

However, as the party moving for summary judgment, Samsung could not prevail by simply pointing to Kim’s lack of evidence as to privilege and self-publication. (See Aguilar, supra, 25 Cal.4th at pp. 854–855.) It was “not enough simply to assert that [Kim] had no evidence supporting an element of each cause of action.” (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.) Samsung bore the burden of establishing that the statement in question was made on a privileged occasion, and Samsung had the moving party’s burden of production for this point. (Taus v. Loftus (2007) 40 Cal.4th 683, 721 (Taus).) Samsung’s brief cites to nothing in the record to show it met this burden, and its argument that “Kim cannot establish a viable defamation claim based on an internal publication of the alleged defamatory statements because they are privileged” inaccurately depicts the parties’ relative burdens under section 437c.

Having reviewed the evidence submitted by Samsung in the trial court, we conclude that Samsung did no more than argue in its moving papers that “[a]ny alleged communication among [Samsung]’s human resources team members or executives regarding Plaintiff’s performance cannot be the basis of imposing liability because it would have been privileged.” As arguments of counsel are not evidence, Samsung did not meet its “burden of establishing that the statement in question was made on a privileged occasion.” (Taus, supra, 40 Cal.4th at p. 721; Los Angeles City Ethics Com. v. Superior Court (1992) 8 Cal.App.4th 1287, 1304.)

For these reasons, the trial court erred when it summarily adjudicated Kim’s cause of action for defamation.

E. Punitive Damages

Punitive damages pursuant to Civil Code section 3294 are available in conjunction with each of Kim’s claims for relief. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1212.) The trial court’s order did not expressly address Kim’s claim for punitive damages.

In light of our determinations that the trial court erred in granting summary adjudication on the causes of action alleged in Kim’s complaint, we also conclude that its implicit rejection of Kim’s punitive damage claim should be reversed. On the record presented, a reasonable jury could conclude that Samsung intentionally discriminated against Kim on the basis of age and race, “then attempted to hide the illegal reason for their decision with a false explanation, and that in this, they acted in a manner that was base, contemptible or vile.” (Cloud v. Casey (1999) 76 Cal.App.4th 895, 912.) “Evidence that the decision-maker attempted to hide the improper basis with a false explanation” could likewise support a “determination that the conduct was willful and in conscious disregard” for Kim’s rights. (Ibid.) For the reasons explained above, we determine that Kim presented sufficient evidence to raise a triable issue of fact as to whether Samsung terminated Kim for discriminatory reasons and then justified that decision with a false explanation. Therefore, Samsung was not entitled to summary adjudication of Kim’s request for punitive damages.

F. Conclusion

The trial court’s granting of summary judgment to Samsung was error. As we have explained, summary adjudication was improper as to Kim’s FEHA claims because, although Samsung presented competent evidence of a legitimate, nondiscriminatory business justification to terminate Kim’s employment, Kim likewise satisfied his burden of presenting triable issues of material fact. Given the reversal of Kim’s FEHA discrimination claims, the trial court’s summary adjudication of the wrongful termination and UCL claims must also be reversed. We also reverse the summary adjudication of Kim’s defamation claim because the trial court erred in concluding that a statement of opinion cannot, as a matter of law, constitute actionable defamation. In addition, as the party moving for summary adjudication, Samsung did not meet its burden of production on the other grounds on which it challenged the defamation cause of action. Finally, we reverse the trial court’s grant of summary adjudication of Kim’s request for punitive damages because Kim presented a triable issue of fact as to whether he is entitled to them.

III. DISPOSITION

The judgment is reversed and remanded with instructions for the trial court to vacate its order granting summary judgment in Samsung’s favor and to enter a new order denying summary judgment. Kim shall recover his costs on appeal.

______________________________________

Danner, J.

I CONCUR:

____________________________________

Grover, J.

I CONCUR IN THE JUDGMENT ONLY:

____________________________________

Mihara, Acting P.J.

Kim v. Samsung SDS America, Inc.

H044775