2013-00148822-CU-OE

Melissa Mashburn vs. Kaiser Foundation Hospitals

Nature of Proceeding: Hearing on Demurrer to Complaint

Filed By: Papadakis, Ellen M.

Defendant’s demurrer to plaintiff’s complaint is SUSTAINED with leave to amend, as
follows.

Moving counsel is admonished because the notice of demurrer does not provide notice
of the Court’s tentative ruling system, as required by Local Rule 1.06, and does not
provide the correct address for Dept. 54. Moving counsel is directed to contact
opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative
ruling procedure and the manner to request a hearing. If moving counsel is unable
to contact opposing counsel prior to hearing, moving counsel is ordered to
appear at the hearing in person or by telephone.

Opposing counsel is admonished for failing to serve the opposition in compliance with
Code of Civil Procedure §1005(c) but the opposition was nevertheless considered.

This action arises out of plaintiff’s previous employment with defendant, Kaiser
Foundation Hospitals. The complaint alleges various employment claims against
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defendant but the latter demurs here only to the 8 cause of action for defamation on
the grounds it fails to state sufficient facts and is uncertain. Among other things,
defendant contends the complaint fails to identify what allegedly defamatory
statements were made, who made them, how they were made and to whom.
Defendant also insists that while the complaint claims the allegedly defamatory
statements were not privileged, plaintiff pleads no facts to support such a conclusion.
Finally, defendant maintains that to the extent plaintiff is relying on the termination
letter referenced in Paragraph 37 (which allegedly stated “…There have been a
number of incidents related to unprofessional conduct and failure to follow my
directions…. Your performance as a supervisor has not been satisfactory…”), such
statements are not of provably false facts but rather merely non-actionable statements
of opinion.

Plaintiff opposes arguing that when the complaint is read “as a whole,” the defamation cause of action is sufficiently pled.

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The demurrer to the defamation cause of action is sustained. First, the 8 cause of
action itself nowhere specifically identifies any allegedly defamatory statement or
whether such statement was written, oral or both, but rather the cause of action merely
states in pertinent part:

“78. As set forth above, Defendant and their managing agents and employees
and Syreeta Ross, published false and defamatory statements concerning
Plaintiffs profession, trade, business, and qualifications to persons other than
Plaintiff.”

Second, while Paragraph 37 describes plaintiff’s “termination letter” as stating “…There
have been a number of incidents related to unprofessional conduct and failure to follow
my directions…. Your performance as a supervisor has not been satisfactory…,” the
complaint nowhere alleges that this letter was provided to anyone other than plaintiff
and without the contents of the letter being “published” to some third party, the Court
can find no defamation as a matter of law.

Moreover, it is incumbent upon plaintiff to specifically identify any person or entity to
whom this allegedly defamatory statement was provided but the complaint currently
fails to do this. Without this information, it is impossible to determine whether such
publication is or is not subject to any applicable privilege such as under Civil Code
§47.

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Additionally, the 8 cause of action pleads no facts which tend to demonstrate that any
defamatory statement was made with malice, fraud or oppression as alleged in
Paragraph 80. Accordingly, plaintiff has failed to adequately plead that any allegedly
defamatory statement was not privileged under Civil Code §47 or another provision of
law.

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Finally, the Court notes that although the 8 cause of action purports to “incorporate by
reference” all of the preceding 76 paragraphs of the complaint, neither the Court nor
defendant should be required to cull through all the allegations in order to determine
exact nature of the defamation being alleged and whether all elements are pled with
sufficient specificity. Instead, the burden of drafting a complaint which properly and
concisely pleads all facts essential to each cause of action falls on plaintiff alone.

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In light of the foregoing, the Court sustains the demurrer to the 8 cause of action and
need not determine here whether the termination letter referenced in Paragraph 37
constitutes a statement of provably false facts or a non-actionable statement of
opinion.

Since this is the first challenge to the complaint, leave to amend is granted. Plaintiff
may file and serve an amended complaint no later than 3/17/2014. Although not
required by court rule or statute, plaintiff is directed to present a copy of this
order when the amended complaint is presented for filing.

Defendant to respond within 10 days if the amended complaint is personally served,
15 days if served by mail. If defendant’s response is either a demurrer or a motion to
strike, a copy of the new amended complaint must be included with the moving papers.