2016-00201838-CU-WT

Rebecca Molina vs. Autozone, Inc.

Nature of Proceeding: Hearing on Demurrer to Fourth Amended Complaint

Filed By: Mack, Conor D.

The demurrer of defendants Autozone, Inc., Alldata, LLC, Francis Tobias and Heidi Keiser (collectively “Defendants”) to plaintiffs’ Fourth Amended Complaint (“4AC”) is OVERRULED, as follows.

Moving counsel failed to comply with CRC Rule 3.1110(b)(3)-(4).

Factual Background

This action commenced on 10/17/2016 and arises from plaintiff Rebecca Molina’s employment, which was terminated in June 2016. The Third Amended Complaint (“3AC”) filed on 9/22/2017 contained the first defamation cause of action alleged in this case. The 4AC filed on 11/8/2017 asserts a variety of causes of action under the Fair Employment and Housing Act (“FEHA”) along with common law causes of action for adverse action in violation of public policy and defamation. In short, plaintiff alleges she was terminated because she was pregnant and Defendants used false allegations of fraudulent misconduct by plaintiff to justify her termination. Plaintiff’s husband

alleges a loss of consortium.

Moving Papers. Defendants now demur to the defamation cause of action on the grounds that it is barred by the applicable one year limitations period since the relation-back doctrine does not apply; the 4AC fails to plead facts sufficient to establish the requisite element of publication of the allegedly defamatory statements; and plaintiff has not pled malice needed to overcome the conditional privilege applicable to the alleged statements.

Opposition. Plaintiffs oppose, arguing first that the defamation claim is not time-barred because each publication gives rise to a new cause of action with a new limitations period and because at least part of the defamation cause of action relates back to the Second Amended Complaint (“2AC”). The opposition adds that the 4AC adequately pleads the element of publication both with respect to statements made within the workplace and plaintiff’s own self-publication and that any conditional privilege which may have applied to the publications was lost as a result of malice.

Reply. Defendants contend that plaintiff’s claimed self-publication does not establish the necessary element of publication since she does not allege she was coerced or compelled to repeat the subject statements and that without any self-publication, the defamation cause of action is time-barred inasmuch as the relation-back doctrine does not apply. Finally, Defendants maintain that the defamation claim is barred by the conditional “common interest” privilege found in Civil Code §47(c).

Analysis

Pertinent Allegations. The defamation cause of action alleges in pertinent part:

Defendants’ false and defamatory statements included accusations that Plaintiff submitted fraudulent reports regarding price reductions in order to obtain personal monetary gain at Defendants’ expense. These and other similar false statements expressly and impliedly stated that Plaintiff was professionally incompetent, dishonest and/or less competent than other Account Executives.

Defendants and their agents and employees conspired to and did recklessly and/or intentionally cause unsolicited publication of defamation of and concerning Plaintiff to third persons who had no need or desire to know. Those third persons…are believed to include…other agents and employees of Defendants and the community, including Plaintiff’s customers and colleagues…

The defamatory publications consisted of knowingly false and unprivileged communications, tending directly to injure Plaintiff and Plaintiff’s personal, business and professional reputation.

Furthermore, based upon compelled self-publication defamation, Plaintiff has been compelled to disclose the content of the defamatory statements given by Defendant [sic] for Plaintiff’s termination of employment. Specifically, during her search for employment following termination…, Plaintiff was forced to disclose the termination and the underlying defamatory accusations of fraudulently submitted reports. These instances of compelled self-publication included disclosure during Plaintiff’s applications for employment with VSP Vision Care in

approximately February 2017, and with Dumont Medical in approximately August 2017.

Plaintiff is informed, believes, and fears that these false and defamatory per se statements will continue to be published…and will be foreseeably republished by their recipients, all to the ongoing harm and injury to Plaintiff… Plaintiff also seeks redress…for all foreseeable republications, including her own compelled self-publication of these defamatory statements.

Each of these defamatory per se publications…was recklessly and/or intentionally published in a matter equaling malice and abuse of any alleged conditional privilege (which Plaintiff denies existed) since each publication was made with hatred, ill will, and an intent to vex, harass, annoy and injure Plaintiff…

The above-described defamatory statements…were made with hatred and ill will toward Plaintiffs [sic] and the design and intent to injure Plaintiff… Defendants and their agents published these statements not with an intent to protect any interest intended to be protected by any privilege but with recklessness and/or an intent to injure Plaintiff and destroy her reputation.

Publication. Defendants contend that the 4AC does not allege they published the reasons for plaintiff’s termination to anyone other than herself and that the allegations of self-publication are impermissibly conclusory to salvage the defamation claim. In particular, according to Defendants, a plaintiff relying on self-publication must show s/he was essentially compelled to repeat the defamatory statement to a third party but the 4AC fails to plead facts sufficient to demonstrate this type of necessity.

The demurrer on these specific grounds will be overruled. Paragraph 148 of the 4AC explicitly alleges, “Defendants and their agents and employees…recklessly and/or intentionally published false and defamatory statements…to persons other than Plaintiff.” (Underline added for emphasis.) The court finds this to be a sufficient allegation of the requisite publication to withstand demurrer even if it remains unclear whether plaintiff will ultimately be able to prove such publication to third parties. Likewise, the allegations in Paragraph 152 are enough for pleading purposes to establish these self-publications were under the circumstances effectively compelled rather than gratuitous or voluntary:

“Plaintiff has been compelled to disclose the content of the defamatory statements given by Defendant [sic] for Plaintiff’s termination… [D]uring her search for employment following termination…, Plaintiff was forced to disclose the termination and the underlying defamatory accusations of fraudulently submitted reports…during Plaintiff’s applications for employment with VSP Vision Care in approximately February 2017, and with Dumont Medical in approximately August 2017.” (Underline added for emphasis.)

It is unclear what more could have been pled to satisfy the pleading standard for coerced self-publication.

Statute of Limitations. There is no dispute that the defamation claim is governed by a one year statute of limitations and even assuming the defamation claim does not “relate back” to the original or subsequent versions of the complaint, the 4AC’s

defamation claim is not in its entirety barred by the one year limitations period since at a minimum both of the allegedly compelled self-publications of the statements in plaintiff’s February and August 2017 job applications occurred less than 12 months before the 4AC was filed on 11/8/2017. Accordingly, the demurrer based on the statute of limitations shall be overruled as well and the mere fact some publications of the allegedly defamatory statements prior to 11/8/2016 might now be time-barred does not change the result here inasmuch as a demurrer only challenges the sufficiency of the pleading, whereas a motion to strike is required to challenge something less than an entire cause of action.

Conditional Privilege. Defendants maintain that an employer’s statements about an employee’s conduct and reasons for employment decisions fall within the conditional privilege found in Civil Code §47(c) and that California law otherwise provides for “managerial immunity” for communications made for a proper purpose, all of which effectively precludes Defendants’ liability based on the allegations of the defamation cause of action.

The court will overrule the demurrer on these grounds. Although Civil Code §47(c) does provide for conditional “common interest” privilege, there are certain prerequisites which must be satisfied before the privilege can apply. Civil Code §47(c) provides in pertinent part:

In a communication, without malice, to a person interested therein, (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 subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee. (Underline added for emphasis.)

In the present case, Paragraph 150 of the 4AC expressly alleges that “Defendants and their agents and employees…did recklessly and/or intentionally cause unsolicited publication of defamat[ory statements about] and concerning Plaintiff to third persons who had no need or desire to know [,…including] other agents and employees of Defendants and the community, including Plaintiff’s customers and colleagues…” These allegations, when construed in context, are sufficient to establish that the communication of the allegedly defamatory statements was outside the scope of the conditional privilege found in §47(c) and also the asserted “managerial immunity” for communications made for a proper purpose. Consequently, the allegations here do not give rise to any conditional privilege or immunity as suggested by Defendants but even if they did, the court finds that allegations in Paragraphs 157-159 of the 4AC to be sufficient to overcome the conditional privilege and “managerial immunity” for certain communications:

Each of these defamatory per se publications…was recklessly and/or intentionally published in a matter equaling malice and abuse of any alleged conditional privilege (which Plaintiff denies existed) since each publication was

made with hatred, ill will, and an intent to vex, harass, annoy and injure Plaintiff…

Defendants published these statements knowing them to be false and unsubstantiated by any independent, good faith, fair, and thorough investigation.

The above-described defamatory statements…were made with hatred and ill will toward Plaintiffs [sic] and the design and intent to injure Plaintiff… Defendants and their agents published these statements not with an intent to protect any interest intended to be protected by any privilege but with recklessness and/or an intent to injure Plaintiff and destroy her reputation. ( Underline added for emphasis.)

Although these allegations could have been more carefully crafted, they are sufficient to overcome any conditional “common interest” privilege or other qualified immunity for communications made for a proper purpose and thus, neither constitutes a bar to plaintiff’s pursuit of the defamation cause of action.

Conclusion

Defendants’ demurrer to the 4AC is overruled.

If not already done, Defendants’ to file and serve an answer to the 4AC no later than 3/12/2018.