Case Name: Lydia Ortega v. Board of Trustees of the California State University, et al.
Case No.: 17-CV-309628

Currently before the Court are the demurrer and motion to strike by defendants Board of Trustees of the California State University (“CSU”), Walter Jacobs (“Jacobs”), and Colleen Haight (“Haight”) (collectively, “Defendants”).

Factual and Procedural Background

Plaintiff Lydia Ortega (“Plaintiff”) is employed as a Professor of Economics at San Jose State University (“SJSU”), a campus of CSU. (Complaint, ¶¶ 1-5.) Plaintiff was elected multiple times to serve as Chair of the Department of Economics. (Id. at ¶ 2.) The Chair of the Department of Economics is elected for terms of four years. (Id. at ¶ 12.) Removal from the position of Chair of the Department of Economics prior to the conclusion of a four year term can only be for cause pursuant to SJSU Policy S14-8. (Ibid.) SJSU Policy S14-8 states that department chairs may only be removed for “compelling reasons, such as criminal activity, manifest breach of ethics, gross malfeasance of duties and other extremely serious personnel matters.” (Id. at ¶ 37.) On May 31, 2016, Plaintiff was removed, without good cause, from her position as Chair of the Department of Economics 14 months and 18 days prior to the expiration of her fourth term. (Id. at ¶¶ 2, 13, and 40.)

For a year prior to her removal from the Chair of the Department of Economics position, Plaintiff “was subjected to continuous investigation and criticisms by SJSU’s new Dean of the College of Social Sciences, [Jacobs].” (Complaint, ¶ 14.) Jacobs conduct allegedly created a hostile work environment for Plaintiff. (Ibid.) “Jacobs … subjected [Plaintiff] to severe harassment motivated by his false and stereotypical views about gender roles.” (Id. at ¶ 15.) Specifically, “Jacobs subjected [Plaintiff] to severe harassment because her management style did not conform to his false and stereotypical ideas as to appropriate communication strategies for females in positions of authority.” (Id. at ¶ 17.) “[Plaintiff] was threatening to Jacobs because he viewed her as inflexible and as lacking in the ‘gentle’ manner of communication that [he] considers essential in a female manager.” (Id. at ¶ 20.) “Jacobs does not consider that male managers and administrators must communicate in a ‘gentle’ manner”; “[r]ather, he requires ‘gentle’ communication from females only.” (Id. at ¶ 21.)

“Because he viewed [Plaintiff] as ‘inflexible’ and lacking in ‘gentleness,’ Jacobs considered it necessary to punish [Plaintiff] with a series of humiliating investigations, demands for self-evaluation, and demands that she modify her management style so that her behavior would conform to [his] preferences, based on his demand that females display submissive and self-deprecating communication strategies.” (Complaint, ¶ 22.) Jacobs’ conduct included: soliciting criticism of Plaintiff from her administrative assistants, faculty members, and staff of the Department of Economics; confronting Plaintiff with allegations that people were upset or unhappy due to her management style and methods of communication; telling Plaintiff’s administrative assistants “not to worry about completing work assigned to [Plaintiff]”; accusing Plaintiff of poor communication when she asked her assistants to do their work; telling Plaintiff that “she must ‘ask nicely’ if she wanted her administrative assistants to perform any task”; “interfering with a communications plan whereby [Plaintiff] and her administrative assistants would meet monthly to discuss department work”; telling an administrative assistant that she did not need to appear at monthly meetings with Plaintiff; and causing an administrative assistant “to make untrue statements to [Plaintiff] related to the reassignment of [another] administrative assistant.” (Id. at ¶¶ 24, 26-28.) Plaintiff did not engage in any misconduct and there was no proper basis for any investigation of her. (Id. at ¶ 30.) Plaintiff alleges that “[t]he only basis for Jacobs’ attempts to solicit criticism of [her] was that she did not conform to [his] false and stereotypical view of how a female should communicate and comport herself in a position of authority.” (Ibid.)

On February 25, 2016, Jacobs told Plaintiff that he could not work with her because she was “inflexible,” and he intended to remove her from the position of Chair of the Department of Economics in July 2016. (Complaint, ¶¶ 35 and 39.) Plaintiff objected on the ground that Jacob had not established good cause for her removal. (Id. at ¶¶ 36 and 38.) Plaintiff was eventually removed from the Chair of the Department of Economics position on May 31, 2016, and Haight replaced her on June 1, 2016. (Id. at ¶¶ 40-41.)

Subsequently, “Haight made a series of false statements about [Plaintiff], including a statement to SJSU Professor of Economics, Dr. Tom Means [(‘Means’)] …, indicating that [Plaintiff] had misused funds donated to the SJSU Department of Economics. (Complaint, ¶ 42.) Haight made similar statements to other SJSU employees and persons outside of SJSU, “including statements that [Plaintiff] used money donated to the SJSU Department of Economics as a ‘private slush fund’ and claims that money donated for teacher training was spent inappropriately on travel expenses.” (Id. at ¶ 43.) Haight’s statements harmed Plaintiff’s reputation and deprived her of valuable opportunities for professional advancement in her field. (Id. at ¶¶ 44-46.)

Based on the foregoing, Plaintiff filed a complaint against Defendants, alleging causes of action for (1) “wrongful demotion” (against CSU); (2) hostile work environment based on gender (against CSU and Jacobs); (3) gender discrimination (against CSU); and (4) defamation (against CSU and Haight).

On June 16, 2017, Defendants filed the instant demurrer to the complaint and motion to strike punitive damages. On July 24, 2017, Defendants filed an amended notice of demurrer and demurrer to the complaint. Plaintiff filed papers in opposition to the demurrer and motion to strike on August 2, 2017. Defendants filed reply papers on August 9, 2017.

Discussion

I. Request for Judicial Notice

In connection with their demurrer and motion to strike, Defendants ask the Court to take judicial notice of Plaintiff’s complaint, the collective bargaining agreement between CSU and the California Faculty Association effective November 12, 2015 through June 30, 2018, various administrative grievance documents, CSU Executive Order 1096, and a government tort claim filed by Plaintiff on October 27, 2016.

To the extent Defendants request judicial notice of the complaint filed in this action, the request is simply unnecessary. The complaint is the pleading under review; consequently, the contents thereof must necessarily be considered by the Court when ruling on the pending matters. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].)

In addition, the remaining documents are not proper subjects of judicial notice. All judicially noticed documents must be necessary and relevant to a material issue under review. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 (“Lockyer”); see also Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.) While Defendants referenced the remaining documents in their original demurrer, they do not mention these documents in their amended demurrer and motion to strike. Consequently, the remaining documents are not relevant to a material issue raised by the pending matters.

For these reasons, Defendants’ request for judicial notice is DENIED.

II. Demurrer

Defendants demur to each and every cause of action of the complaint on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e) and (f).)

A. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) However, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.)

B. Uncertainty

With respect to the ground of uncertainty, Defendants’ memorandum of points and authorities fails to address that ground. “[T]he failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809 overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30.) Furthermore, “[w]hen [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority,” the point is treated as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

For the first time in reply, Defendants argue that the fourth cause of action for defamation is uncertain because the alleged defamatory statements are not pled with the requisite specificity. This point should have been made in Defendants’ moving papers, and Defendants’ attempt to raise the argument for the first time in reply is improper as Plaintiff did not have the opportunity to respond to the argument in her opposition. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 (Reichardt) [points raised for first time in a reply brief will ordinarily be disregarded because other party is deprived of the opportunity to counter the argument]; see also In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303 (In re Tiffany); REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 (REO).)

Accordingly, the demurrer on the ground of uncertainty is OVERRULED.

C. Failure to Allege Facts Sufficient to Constitute a Cause of Action

1. First Cause of Action

Defendants assert that the first cause of action, which is labelled as a claim for “wrongful demotion,” is a Tameny claim for wrongful discipline in violation of public policy. Defendants argue that a common law tort claim, such as a Tameny claim, cannot be alleged against CSU as a matter of law pursuant to Government Code section 815.

In opposition, Plaintiff asserts that her first cause of action is not a Tameny claim for wrongful discipline in violation of public policy. Plaintiff argues that the claim is, instead, one for breach of an implied-in-fact term in her employment contract with CSU. Plaintiff contends that SJSU Policy S14-8 became an implied-in-fact term of the contract between her and CSU, and CSU breached the implied-in-fact term by removing her from the Chair of the Department of Economics position without good cause. Plaintiff asserts that such a claim sounds in contract and is expressly allowed under Government Code section 814.

A claim for breach of an implied-in-fact contract sounds in contract and is separate and distinct from a Tameny claim for wrongful discipline in violation of public policy, which sounds in tort. (See Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 321–22 and 329 (Pugh) [noting there are two limitations on an employer’s right to terminate an at-will employee—one based upon public policy (when an employer’s discharge of an employee violates fundamental principles of public policy) and one based on contract (when the discharge is contrary to the terms of the employment agreement, express or implied)—and holding that the plaintiff demonstrated a prima facie case of wrongful termination in violation of his contract of employment] disapproved on other grounds in Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 351 (Guz); see also Guz, supra, 24 Cal.4th at p. 352 [“[T]he employer’s personnel policies and practices may become implied-in-fact terms of the contract between employer and employee. If that has occurred, the employer’s failure to follow such policies when terminating an employee is a breach of the contract itself.”]; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 662-63[the plaintiff sought damages for wrongful discharge on “three distinct theories: (1) a tort cause of action alleging a discharge in violation of public policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 …), (2) a contract cause of action for breach of an implied-in-fact promise to discharge for good cause only (e.g., [Pugh, supra] …), and (3) a cause of action alleging a tortious breach of the implied covenant of good faith and fair dealing ….”].)
Courts have previously found that a claim for breach of an implied-in-fact agreement not to be demoted without good cause, based on the employer’s official or unofficial policies, is enforceable and sounds in contract. (See e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 454–59, 463-64 (Scott) disapproved on other grounds in Guz, supra; see also Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 9 and 30 [quoting Scott favorably].)
Upon review of the allegations of the first cause of action, it is clear that Plaintiff is not alleging a Tameny claim for wrongful discipline in violation of public policy, but a claim for breach of an implied-in-fact term in her employment contract with CSU. In the first cause of action, Plaintiff alleges that SJSU Policy S14-8 became an implied-in-fact term of the contract between her and CSU; pursuant to that term, CSU could not demote her without good cause; and CSU breached the implied-in-fact term by removing her from the Chair of the Department of Economics position without good cause. (Complaint, ¶¶ 52-57.) There are no allegations in the first cause of action providing that CSU violated a fundamental public policy when it removed Plaintiff from her position as Chair of the Department of Economics.

While Government Code section 815 bars Tameny claims against public entities (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899; Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 323 and 328–29), Government Code section 814 provides that the doctrine of governmental immunity does not protect public entities from liabilities arising out of contract (Gov. Code, § 814 [“Nothing in this part affects liability based on contract or the right to obtain relief other than money or damages against a public entity or public employee.”]; Roe v. State of California (2001) 94 Cal.App.4th 64, 69 [“ ‘ “[w]hen the state makes a contract … it is liable for a breach of its agreement … and the doctrine of governmental immunity does not apply. [Citations.]” ’ ”]). Therefore, the first cause of action is not barred by Government Code section 815.
For the first time in reply, Defendants argue that the first cause of action fails even if it is construed as a claim for breach of an implied-in-fact term in Plaintiff’s employment contract because the terms of Plaintiff’s employment contract are determined by statute, not contract. This point should have been made in Defendants’ moving papers, and Defendants’ attempt to raise the argument for the first time in reply is improper as Plaintiff did not have the opportunity to respond to the argument in her opposition. (See Reichardt, supra, 52 Cal.App.4th at p. 764 [points raised for first time in a reply brief will ordinarily be disregarded because other party is deprived of the opportunity to counter the argument]; see also In re Tiffany, supra, 223 Cal.App.3d at pp. 302-03; REO, supra, 69 Cal.App.4th at p. 500.)

Accordingly, Defendants’ demurrer to the first cause of action is OVERRULED.

2. Second Cause of Action

Defendants argue that the second cause of action, which alleges a claim for hostile work environment harassment based on gender in violation of the Fair Employment and Housing Act (the “FEHA”), fails because Jacobs’ alleged conduct “involve[s] some aspect of [his] exercise of his supervisorial authority” and harassment consists of a type of conduct not necessary for performance of a supervisory job. They further argue that the allegations fail to demonstrate that Jacobs’ actions rose to the level of severe or pervasive conduct sufficient to alter the conditions of employment and create an abusive working environment.

To establish a prima facie case of harassment, a plaintiff is required to show: (1) he/she is a member of a protected class; (2) he/she was subject to unwelcome harassment; (3) the harassment related to membership in the protected class; (4) the harassment unreasonably interfered with his/her work performance by creating an intimidating, hostile or offensive work environment; and (5) the defendant is liable for the harassment. (See Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876 [dealing specifically with harassment based on race].) “Harassment, which may be verbal, physical, or visual and communicates an offensive message to the harassed employee, cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. Whether the harassment is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive environment must be assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” (Id. at p. 877, internal citations omitted; see also Rehmani v. Super. Ct. (2012) 204 Cal.App.4th 945, 951 [“Whether the conduct of the alleged harassers was sufficiently sever or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances.”].)

As Defendants persuasively argue, Plaintiff has not adequately pled harassment because her claim is based entirely on personnel management actions taken by Jacobs. (See Complaint, ¶¶ 14-17, 20-28, 60-67.) As the California Supreme Court has explained:
[C]ommonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.
(Reno v. Baird (1998) 18 Cal.4th 640, 646-647, italics added, citing Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63-65; see Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869-870.)

Accordingly, the demurrer to the second cause of action is SUSTAINED, with 10 days’ leave to amend.

3. Third Cause of Action

Defendants argue that the third cause of action for gender discrimination in violation of the FEHA fails because the position of Chair of the Department of Economics was filled by another woman, Haight. They further contend that there are no allegations showing that an alleged adverse employment action was taken under circumstances suggesting a discriminatory motive. Defendants assert that there are no allegations specifically related to gender, as flexibility and a gentle approach are not gender specific.

In order to state a prime facie case of gender discrimination under the FEHA—which includes not only discrimination based on the fact that the plaintiff is a particular gender, but also discrimination based on the fact he or she failed to act like that gender, i.e., conform to gender stereotypes (see Gov. Code, § 12926, subd. (r)(2); Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 251 (Price) superseded by statute on other grounds as stated in Burrage v. U.S. (2014) 134 S.Ct. 881, 889, fn. 4)—a plaintiff must show that: (1) he/she was a member of the protected class (a particular gender); (2) he/she was qualified for the position sought or was performing competently in the position held; (3) he/she suffered an adverse employment action, such as termination; and (4) the action under circumstances suggesting a discriminatory motive (e.g., he/she was replaced by a person outside the protected class or similarly situated non-protected employees were treated more favorably). (Guz, supra, 24 Cal.4th at pp. 355-356; Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1318 (Mixon); Vincent v. Brewer Co. (6th Cir. 2007) 514 F.3d 489, 494 (Vincent).)
In light of the foregoing, it is readily apparent that Defendants’ arguments are not well-taken. First, the fact that Plaintiff was not replaced by a person outside of her protected class is not fatal to her claim. As articulated above, there are other ways Plaintiff can establish that an adverse employment action was taken against her under circumstances suggesting a discriminatory motive; for example, she could show that similarly situated non-protected employees were treated more favorably. (See Guz, supra, 24 Cal.4th at pp. 355-356; see also Mixon, supra, 192 Cal.App.3d at p. 1318; Vincent, supra, 514 F.3d at p. 494.)

Second, Plaintiff alleges facts suggesting that Jacobs’ decision to remove her from the position of Chair of the Department of Economics may have been motivated by discriminatory animus. As previously stated, gender discrimination includes not only discrimination based on the fact that the plaintiff is a particular gender, but also discrimination based on the fact he or she failed to act like that gender, i.e., conform to gender stereotypes. (See Gov. Code, § 12926, subd. (r)(2); Price, supra, 490 U.S. at p. 250-51 [“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”].) In the complaint, Plaintiff alleges that Jacobs discriminated against her and removed her from the position of Chair of the Department of Economics because she did not conform to gender stereotypes, i.e., she did not communicate with and manage people in a gentle, flexible, and generally submissive manner. (See Complaint, ¶¶ 15, 17, 20-22, 24, 26-28, 30, 35, and 39.) The circumstances which suggest Jacobs’ discriminatory motivation are comments made by Jacobs that Plaintiff needed to “ ‘ask nicely’ if she wanted her administrative assistants to perform any task”; his solicitation of criticism from staff about Plaintiff’s communication and management style, even though her communication and management style were in the norm for persons outside the protected class with similar roles; Jacobs only required female managers and administrators to communicate in a “gentle” manner; and Jacobs told Plaintiff that she was “inflexible” and he, therefore, intended to remove her from the position of Chair of the Department of Economics. (Complaint, ¶¶ 21, 35, 39, 60-61, 64-65.)
Accordingly, the demurrer to the third cause of action is OVERRULED.
4. Fourth Cause of Action

Defendants argue that the fourth cause of action for defamation fails because (1) the alleged defamatory statements were privileged under Civil Code section 47, subdivisions (a), (b), and (c) and (2) CSU and Haight are immune from liability under Government Code sections 820.2 and 822.2. Finally, Defendants assert that the claim is barred because, except where a statutory exception applies, an employee cannot sue other employees based on their conduct relating to personnel actions.

a. Official Duty Privilege

Defendants contend that the official duty privilege protects CSU and Haight from liability for any statements regarding Plaintiff’s purported misuse of Economic Department funds because the statements were made in the proper discharge of an official duty.

Civil Code section 47, subdivision (a) confers privileged status upon any statement by a public official in the course of discharging his or her official duties. (See Royer v. Steinberg (1979) 90 Cal.App.3d 490, 500.) The privilege “protects any statement by a public official, so long as it is made (a) while exercising policy-making functions, and (b) within the scope of his [or her] official duties.” (Id. at p. 501.) Only statements that constitute an exercise of policy-making functions fall within the privilege. (See e.g., Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 415 [the California Supreme Court held that a government officer’s statements to the press were not in the nature of a “basic policy decision” made at the “planning” stage of the city’s operations; instead, the officer’s discussions with the public or press regarding the functioning of his office fell within the category of routine, ministerial duties incident to the normal operations of his office].)

Here, Defendants have not established that Haight’s statements are privileged under Civil Code section 47, subdivision (a) because Defendants fail to show that the statements were made by Haight while exercising policy-making functions. Defendants merely cite to allegations in the complaint providing that Haight made the alleged statements in the course of her employment and after reviewing information in the course of her duties as Chair of the Economics Department. (See Complaint, ¶ 48.) While such allegations may demonstrate that the statements were made within the scope of Haight’s official duties, they do not indicate that the statements were necessarily made while exercising policy-making functions. Defendants do not cite any allegations in the complaint showing that the Chair of the Economics Department is vested with policy making powers, describing the nature and scope of those powers, or indicating that statements about Plaintiff’s purported misuse of department funds constitute an exercise of that policy making power. Consequently, the fourth cause of action, as pleaded, is not barred by the official duty privilege.

b. Official Proceedings Privilege

Defendants contend that the defamation claim is barred by Civil Code section 47, subdivision (b) because that statute “establishes a privilege for a publication made in any other ‘official proceeding authorized by law.’ ” (Mem. Ps. & As., p. 9:3-19.)

Defendants’ conclusory argument is wholly insufficient to establish that the privilege under by Civil Code section 47, subdivision (b) applies. California Civil Code section 47, subdivision (b) bars a civil action for damages for communications made “in any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceedings as authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],” with certain statutory exceptions. (Civ. Code, § 47, subd. (b).) Here, Defendants neither identify any judicial, legislative, or official proceeding nor show that Haight’s alleged statements were made in connection with such a proceeding. Consequently, Defendants fail to show that the fourth cause of action is barred by the official proceedings privilege set forth in Civil Code section 47, subdivision (b).

c. Common Interest Privilege

Defendants assert that Plaintiff’s defamation claim is barred by the common interest privilege set forth in Civil Code section 47, subdivision (c) because Haight made the allegedly defamation statements in the course of her employment as Chair of the Economics Department; the statements were based on information that Haight reviewed in the course of her duties; she made the statements to Means, a Professor of Economics at SJSU; Haight allegedly told Means that Plaintiff misused Economic Department funds while she was Chair of the Economics Department; and, as a co-worker of Haight and Plaintiff, Means was an interested party.

Civil Code section 47, subdivision (c) codifies the common law privilege of common interest, which protects publications made, without malice, to an interested person “(1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” This privilege is qualified because it can be overcome upon a showing of malice. (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1370.) The common interest privilege applies in the workplace. (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995.) Statements made by an employer to employees about the reasons for an employee’s termination may be privileged because both the employer and employees share a common interest in clarifying workplace policies and preventing future abuses of those policies. (See Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846-48.) Application of the common interest privilege pursuant to Civil Code section 47 is ordinarily a question of law. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 286.)

In the fourth cause of action, Plaintiff alleges that CSU and Haight “made multiple false statements regarding [Plaintiff], to [Means] and others”; “[t]he persons to whom [CSU] and Haight published false statements, including Means, reasonably understood the statements to mean that [Plaintiff] had handled funds entrusted to her supervision in an unethical or illegal manner”; CSU and Haight failed to use reasonable care to determine the truth or falsity of the statements; the statements had a tendency to harm Plaintiff as they attached her reputation; and the statements caused Plaintiff harm. (Complaint, ¶¶ 79-84, italics added.)

Defendants’ argument regarding the common interest privilege only addresses statements allegedly made to Means. Defendants do not attempt to demonstrate that the statements made by Haight to “others” fall within Civil Code section 47, subdivision (c). Moreover, there are no facts alleged in the complaint suggesting that these other individuals share a common interest with Haight and CSU. (See Complaint, ¶ 43.) Because Defendants’ argument would not dispose of the claim in its entirety even if it had merit, the demurrer cannot be sustained on this basis. (See PHII, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682 [a demurrer does not lie to only a portion of a claim].)

d. Government Code section 820.2

Defendants contend that they are immune from liability under Government Code section 820.2.

Government Code section 820.2 provides that “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” That statute “confers immunity only with respect to those ‘basic policy decisions’ which have been committed to coordinate branches of government, and does not immunize government entities from liability for subsequent ministerial actions taken in the implementation of those basic policy decisions [citation]. This distinction is sometimes characterized as that between the ‘planning’ and the ‘operational’ levels of decision-making [citation].” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 793.)

Here, Defendants have not cited any legal authority whatsoever to support their assertion that Haight’s statements regarding Plaintiff were the result of the exercise of discretion that was vested in Haight. Furthermore, Defendants fail to establish that Haight’s statements constitute “basic policy” decisions as opposed to the kind of ministerial, “operational” action taken to implement the a policy decision, which is not immunized by Government Code section 820.2. Consequently, Defendants have not shown that they are immune from liability under Government Code section 820.2.

e. Statements Made in Connection with Personnel Actions

Defendants contend that the fourth cause of action for defamation is barred because, except where a statutory exception applies, an employee cannot sue other employees based on their conduct relating to personnel actions.

In Sheppard v. Freeman (1998) 67 Cal.App.4th 339, 342 (Sheppard), the court held “that except where a statutory exception applies, an employee or former employee cannot sue other employees based on their conduct relating to personnel actions.” Specifically, the court determined that an employee could not sue other coemployees individually based on their conduct relating to personnel actions (e.g., termination, demotion, discipline, transfers, compensation setting, work assignments, and/or performance appraisals), except where mandated by statute, whether or not the employees are determined to have been acting within their scope of employment and regardless of their personal motives. (Id. at p. 242.)

Defendants have not shown that the principle set forth in Sheppard applies in this case because they do not cite allegations in the complaint showing that Haight’s statements were made in connection with, or otherwise related to, a personnel action. Consequently, this argument lacks merit.

f. Government Code section 822.2

Defendants contend that they are immune from liability under Government Code section 822.2 because the fourth cause of action is based on misrepresentations allegedly made by Haight and Plaintiff has not sufficiently alleged that the statements were made with malice.

Pursuant to Government Code section 818.8, “[a] public entity is not liable for an injury caused by misrepresentation by an employee of the public entity whether or not such misrepresentation be negligent or intentional.” Similarly, Government Code section 822.2 provides that “[a] public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.”

However, these statutes do not apply to tort causes of action based on reputational harm such as defamation. (City of Costa Mesa v. D’Alessio Investments, LLC (2003) 214 Cal.App.4th 358, 383.) Because the fourth cause of action alleges a claim for defamation, Government Code sections 818.8 and 822.2 do not apply to the cause of action.

g. Conclusion

In light of the foregoing, the demurrer to the fourth cause of action is OVERRULED.

III. Motion to Strike

Defendants move to strike Plaintiff’s request for punitive damages made in connection with the second, third, and fourth causes of action.

A. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

B. Analysis

Defendants assert that the Court should strike the punitive damages allegations against CSU because punitive damages cannot be recovered against a public entity as a matter of law. Defendants also contend that the Court should strike the punitive damages allegations against Jacobs and Haight because the allegations are not supported by facts constituting malice, oppression, or fraud.

1. Punitive Damages Sought Against CSU

Plaintiff concedes in her opposition that she cannot seek punitive damages against CSU. (Opp’n., p. 3:18-21.) Accordingly, the motion to strike Plaintiff’s request for punitive damages is GRANTED with respect to CSU.

2. Punitive Damages Sought Against Jacobs in Connection with the Second Cause of Action

Given the ruling on Defendants’ demurrer to the second cause of action, the motion to strike the punitive damages allegations made in connection with the second cause of action is MOOT with respect to Jacobs.

3. Punitive Damages Sought Against Haight in Connection with the Fourth Cause of Action

Plaintiff seeks punitive damages against Haight in connection with the fourth cause of action for defamation. In the fourth cause of action, Plaintiff alleges that Haight falsely told Means, and others, that she handle funds entrusted to her supervision in an unethical and illegal manner; Haight failed to use reasonable care to determine the truth or falsity of those statements; the statements harmed her; and Haight “acted with malice, oppression or fraud when she published false statements regarding [her] based on Haight’s desire to justify [her] demotion ….” (See Complaint, ¶¶ 79-88.)

Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice.” (Civ. Code, § 3294, subd. (a).) “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Finally, “fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person or property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) Punitive damages cannot be pleaded generally; that is, the complaint must allege facts showing statutory “oppression,” “malice” or “fraud.” Conclusory allegations that the defendant acted “willfully,” “maliciously,” etc. or with “conscious disregard,” are insufficient to support a claim for punitive damages; the plaintiff must plead facts to support such a conclusion. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

Here, Plaintiff does not allege facts showing that Haight acted with oppression, fraud, or malice when she made the alleged defamatory statements. Instead, the fourth cause of action merely includes conclusory allegations that Haight acted in a willful, malicious, or fraudulent manner because Haight wanted to justify Plaintiff’s removal from the position of Chair of the Economics Department. Furthermore, Plaintiff alleges that Haight simply failed to use reasonable care to determine the truth or falsity of those statements (see Complaint, ¶ 81) and “mere negligence, even gross negligence is not sufficient to justify an award of punitive damages” (see Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894).

For these reasons, the motion to strike the punitive damages allegations made in connection with the fourth cause of action is GRANTED, with 10 days’ leave to amend, with respect to Haight.