Respondent: Plaintiff Stacy Gutierrez

POS: Moving OK; Opposing filed just 8 court days prior to the hearing and served by regular mail in violation of CCP § 1005(b) and (c)

Plaintiff alleges that defendants harassed her and discriminated against her for taking pregnancy disability leave. Plaintiff further claims that defendants retaliated against her for complaining about harassment and discrimination. The complaint was filed 3/28/17. On 5/9/17, Defendant Mount San Antonio College’s (“Mt. SAC”) default was entered. The First Amended Complaint, filed 10/18/17, asserts causes of action against Defendants Mt. SAC, Ibrahim “Abe” Ali, Irene Malmgren and Does 1-10 for:

Sex Discrimination
Harassment (Government Code § 12940(j))
Failure to Prevent Discrimination (Government Code § 12940(a)&(k))
Retaliation in Violation of Government Code § 12940(h)
Breach of Contract
Libel Per Quod
Libel Per Se

A Case Management Conference is set for 4/5/18.

Defendants Mt. San Antonio Community College District (“Mt. SAC”), Ibrahim “Abe” Ali (“Ali”) and Irene Malmgren (“Malmgren”) demur, per CCP § 430.10(e), to the sixth and seventh defamation causes of action, on the basis that they both fail to state facts sufficient to constitute causes of action.

At the outset, the court rejects Mt. SAC’s immunity argument. “As a general proposition it may be said that, if an employee or agent while acting in the scope of his authority and in furtherance of the employee’s business defames another, his employer or principal may be held liable therefor. (Correia v. Santos (1961) 191 Cal.App.2d 844, 855).” Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 411. “The foregoing well-rooted principle is unaffected by the fact that the employment is public. Considerations bearing on the ambit and nature of that public employment were well expressed in Neal v. Gatlin (1973) 35 Cal.App.3d 871, 875, ‘…a public employee is acting in the course and scope of the employment ‘when he is engaged in work he was employed to perform or when the act is an incident to his duty and was performed for the benefit of his employer and not to serve his own purposes or conveniences.’ (Citations.) The phrase ‘scope of employment’ has been equated with the express or implied power of the public employee to act in a particular instance, and in evaluating his conduct to determine whether it is within the ambit of his authority we are to look not to the nature of the act itself, but to the purpose or result intended. (Citations, fn. omitted). If the object or end to be accomplished is within the employee’s express or implied authority his act is deemed to be within the scope of his employment irrespective of its wrongful nature.’ (See also Burgdorf v. Funder (1966) 246 Cal.App.2d 443).” Id.; see also Nadel v. Regents of University of California (1994) 28 Cal.App.4th 1251, 1259 (i.e., “[u]nder California law, a public entity may be held vicariously liable for the conduct of its employees acting within the scope of their employment, but only to the extent that the employees may be held liable. (Gov. Code, § 815.2, subd. (a); Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819).) Plaintiff has alleged that Ali and Malmgren are, and at all relevant times were, employed by Mt. SAC and that “each of the defendants…was the agent or employee of each of the other defendants, and in doing the things alleged to have been done in the complaint, acted within the scope of such agency or employment, or ratified the acts of the other.” (FAC, ¶¶ 4 and 6).

Nevertheless, plaintiff’s sixth and seventh causes of action (i.e., for libel per quod and libel per se, respectively) fail as they have not been adequately pled. Plaintiff has alleged that “[j]ust prior to her leave, Plaintiff was ambushed with a frivolous Employee Annual Evaluation Form…The evolution [sic] was drafted by MALMGREN and approved by ALI…the evaluation alleged that Plaintiff was referred to as ‘argumentative,’ ‘disrespectful,’ ‘highly critical,’ ‘dominating,’ demonstrating ‘close-mindedness’ and ‘arrogance.’ She was also accused of being ‘disrespectful’ and ‘inappropriate’ to others. Finally, she was accused of being an obstructionist and micromanager. All statements were fabricated and false.” (FAC, ¶ 12(a)). Plaintiff also claims that defendants “falsely informed other employees that she was terminated from employment,” but concedes that Mt. SAC, in fact, “refused to renew her contract.” (Id., ¶¶ 42, 12(b)).

“’Libel is a false and unprivileged publication by writing…which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him [or her] to be shunned or avoided, or which has a tendency to injure him [or her] in his [or her] occupation.’ (Civ. Code, § 45). A publication ‘must contain a false statement of fact’ to give rise to liability for defamation. (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600). A statement of opinion ‘cannot be false and is outside the meaning of libel.’ (Tschirky v. Superior Court (1981) 124 Cal.App.3d 534, 539). ‘[T]he dispositive question…is “whether a reasonable fact finder could conclude that the published statements imply a provable false factual assertion.”’ (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1607, fn. omitted). The court examines the communication in light of the context in which it was published. The communication’s meaning must be considered in reference to relevant factors, such as the occasion of the utterance, the persons addressed, the purpose to be served, and ‘all of the circumstances attending the publication.’ (Polygram Records, Inc. v. Superior Court [(1985)] 170 Cal.App.3d [543,] 555).” Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 969-970.

In Jensen, the Fourth District, Division Three Court of Appeal held that “unless an employer’s performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior (see Polygram Record[, supra,] 170 Cal.App.3d [at] 550), it cannot support a cause of action for libel. This is true even when the employer’s perceptions about an employee’s efforts, attitude, performance, potential or worth to the enterprise are objectively wrong and cannot be supported by reference to concrete, provable facts.” Id. at 965. Here, plaintiff does not contend that she was accused of a lack of integrity, criminal conduct, or lack of competence; again, plaintiff alleges that she was referred to as “argumentative,” “disrespectful,” “highly critical,” “dominating,” and that she demonstrated “close-mindedness” and “arrogance.” Plaintiff further alleges that she was also accused of being “disrespectful” and “inappropriate” to others, as well as being an “obstructionist” and “micromanager.” “The critical determination of whether the allegedly defamatory statement constitutes fact or opinion is a question of law.” Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601. The foregoing comments constitute statements of opinion, rather than false statements of fact.

The demurrer, then, is sustained. Defendants have 10 days to answer as to the remaining causes of action.