Stacy McCrory v. County of Santa Barbara, et al.
Case No: 15CV02871
Hearing Date: Mon Oct 07, 2019 9:30

Nature of Proceedings: Motion for Summary Judgment/Adjudication

Stacy McCrory v. County of Santa Barbara, et al. (Judge Sterne)

Case No. 15CV02871

Hearing Date: October 7, 2019

HEARING:

Motion of Defendants County and Dark for Summary Judgment or Alternatively for Summary Adjudication

ATTORNEYS:

For Plaintiff Stacy McCrory: James H. Cordes, Angelica Caro, James H. Cordes and Associates

For Defendants County of Santa Barbara and Patricia Dark: Michael C. Ghizzoni, Michael M. Youngdahl, Office of the County Counsel

TENTATIVE RULING:

The motion of defendants County of Santa Barbara and Patricia Dark for summary judgment or alternatively for summary adjudication is granted as to summary adjudication in favor of defendants on the fourth (intentional interference with prospective economic advantage) and fifth (negligent interference with prospective economic advantage) causes of action and is in all other respects denied.

Background:

In April 2014, In the County Department of Alcohol Drug and Mental Health Services (ADMHS) employed plaintiff Stacy McCrory as a Forensic Liaison. (Plaintiffs’ Response Separate Statement [PSS], undisputed fact 1.) Also in April 2014, the County Public Defender employed defendant Patricia Dark as a Deputy Public Defender. (PSS, undisputed fact 2.)

On April 21, 2014, Dark listened to a voicemail message from McCrory regarding a criminal case against “JM,” one of Dark’s clients. (PSS, fact 3 [undisputed on this point].)

On April 23, 2014, Dark sent McCrory’s voicemail message to Dr. Takishi Wada, the interim Director of ADMHS, and attached to it an email characterizing McCrory and her message (the Email). (PSS, fact 4 [undisputed on this point].) (Note: The Email is stated in strong and inflammatory terms. McCrory asserts that the Email is defamatory. The issue presented in this motion relates to the publication of the Email and not its contents. Thus, for purposes of this motion only, the court assumes that McCrory’s assertion that the Email is legally defamatory is correct.)

Dark sent the Email to Wada because he was the person assigned the statutory duty to make a competency restoration placement recommendation for JM. (PSS, fact 5 [undisputed on this point].) According to defendants, Dark assumed that the Email and the private and privileged medical and mental health information regarding JM would remain confidential with Wada. (Defendants’ Separate Statement [DSS], fact 5; Dark decl., ¶¶3-8.) According to McCrory, Dark did not assume that the Email would remain confidential with Wada because Dark herself republished the Email to multiple persons. (Cordes decl., exhibit B [Dark’s Responses to Special Interrogatories No. 1 & 2].)

Before sending the Email to Wada, Dark showed it to her supervisor, Chief Deputy Robert Ikola. (PSS, fact 6 [not disputed on this point].)

During the evening of April 23, 2014, Wada forwarded the Email to then ADMHS Assistant Director Michael Craft and to ADMHS Medical Director, Ole Behrendtsen, M.D., asking for their input regarding how to respond. (PSS, undisputed fact 7.) Craft responded to Wada later in the evening and requested Behrendtsen’s thoughts on the matter as part of an email string that included the Email. (PSS, undisputed fact 8.)

On April 24, 2014, Dark sent copies of the Email and McCrory’s voicemail to another Deputy Public Defender in her office, Maria Martino. (PSS, fact 11 [undisputed on this point].) According to defendants, Martino did not share the Email with anyone. (DSS, fact 12.) According to McCrory, Martino forwarded the Email to Lawanda Lyons-Pruitt, former Investigator for the Santa Barbara Public Defender’s Office on September 26, 2014. (Martino decl., ¶ 13.)

On April 25, Craft forwarded his communications with Wada, including the Email, to McCrory’s direct supervisor, Regional Manager Andrew Vesper. (PSS, fact 9 [undisputed on this point].) Craft’s response indicated that if the Email raised any personnel issues, those issues should be dealt with by Vesper. (Camacho-Craft decl., ¶ 3.) Also on April 25, 2014, Wada forwarded the Email to Celeste Andersen, the ADMHS Compliance Officer, seeking input regarding how to respond. (PSS, undisputed fact 10.)

On May 13, 2014, at a chambers conference in the JM case, Dark gave hardcopies of the Email to the District Attorney prosecuting the JM case, Chrystal Joseph, and to Deputy County Counsels Victoria Tuttle and Aylin Bilir on behalf of ADMHS. (PSS, fact 13 [undisputed on this point].) Dark offered a copy to the Court, which declined the offer. (Ibid.) Joseph, Tuttle, and Bilir put the hardcopies of the Email in their office files, did not make copies of it, and did not share copies of it with anyone other than, perhaps, McCrory. (PSS, undisputed fact 14.) Because Dark did not bring enough copies of the Email to the chambers conference, Dark sent an electronic copy of the Email, and a copy of the voicemail, to ADMHS Clinical Psychologist Dr. Joseph Lockhart, who also was present at the chambers conference. (PSS, fact 15.) Lockhart played the McCrory voicemail for his colleague, ADMHS Clinical Psychologist Kathleen Curtis. (PSS, fact 16.) According to Lockhart, Lockhart did not share the Email with anyone other than his counsel. (Lockhart decl., ¶ 11.)

According to Dark, the only persons with whom Dark shared the Email in 2014 were Wada, Martino, Tuttle, Bilir, Joseph and Lockhart. (DSS, fact 17; Dark decl., ¶¶ 8-14.) According to McCrory, Dark also admits to sharing the Email to Ikola. (Dark decl., ¶ 9.) (Note: As discussed below, McCrory argues that these factual assertions of Dark at to her limited republication of the Email are disputed based upon circumstantial inferences.) According to Dark, at no point in 2014 did Dark intend that the Email would be distributed to anyone other than the people with whom she shared it—Wada, Martino, Tuttle, Bilir, Joseph, and Lockhart. (DSS, fact 18.) According to McCrory, the Email in its text states that “I am confident that your department will do the right thing …,” suggesting that Dark did not expect Wada to keep the Email confidential and the Email does not state or request that the Email remain confidential. (Defendants’ exhibits, exhibit 3 [the Email].) McCrory had nothing to do with republishing the Email. (McCrory decl., ¶ 7.)

On McCrory’s last day working for defendant County of Santa Barbara (County), July 25, 2014, CEO Annmarie Cameron and Director of Operations Patricia Collins of McCrory’s new employer, the Mental Wellness Center, received copies of the Email. (PSS, undisputed fact 19.) McCrory started to work with the Mental Wellness Center in late July 2014. (PSS, undisputed fact 25.) The Email did not cause Cameron concern because she knew McCrory and her qualifications. (PSS, undisputed fact 26.)

In August 2014, Leonard Kwock, a Program Manager employed by the Ventura County Behavior Health Department, overseeing the Juvenile Facility—Mental Health Services, received a copy of the Email. (PSS, fact 20 [undisputed on this point]; Kwock decl., ¶ 1.)

The copies of the Email delivered to Cameron, Collins, and Kwock were delivered by U.S. Mail in envelopes with no return address or other indications of the sender’s identity. (PSS, fact 21 [undisputed on this point].)

According to defendants, neither Dark nor any of the other County employees who came into possession of the Email sent it, or caused or influenced anyone else to send it to Cameron, Collins, or Kwock. (DSS, fact 22 & evidence cited.) Neither Dark nor any of the other County employees who came into possession of the Email have any information regarding who sent it to Cameron, Collins, or Kwock. (DSS, fact 23 & evidence cited.) According to defendants, in this litigation, McCrory has not identified any County employee other than Dark whom she claims is responsible for sending the Email to Cameron, Collins, or Kwock. (DSS, fact 24 & evidence cited.) (Note: McCrory’s response to these assertions are discussed in the analysis below.)

While working at the Mental Wellness Center, McCrory’s performance evaluations were positive. (PSS, undisputed fact 27.) McCrory believes that her compensation increased while employed there. (PSS, undisputed fact 28.) When McCrory announced that she had applied for a job that would involve her returning to the County, Cameron did not want her to leave and discussed the possibility of remaining with the Mental Wellness Center. (PSS, undisputed fact 29.)

Before Kwock received the Email, he and McCrory had one, maybe more, telephone conversation exploring the possibility of her working part-time for Ventura County while she was working for the Mental Wellness Center. (PSS, undisputed fact 30.) Sometime after talking with Kwock, another unidentified person, who may have been from the Ventura County Probation Department and was supposed to follow up with Kwock, called McCrory to discuss the type of work that would be involved. (PSS, undisputed fact 31.) McCrory had never worked for Ventura County before Kwock contacted her. (PSS, undisputed fact 32.) McCrory and Kwock knew each other because they had worked in the same department with County. (PSS, fact 33 [undisputed on this point].)

According to defendants, McCrory and Kwock did not agree to, or negotiate regarding, any of the terms and conditions of employment. (DSS, fact 34; Kwock decl., ¶ 4.) According to McCrory, in a telephone conversation between McCrory and Kwock, Kwock told McCrory about an employment opportunity and wondered if McCrory would be willing to do restoration services for them on a part-time basis as a contractor out of McCrory’s private practice. (McCrory depo. [Defendants’ exhibit 7], pp. 262-263.) McCrory said she would consider it and thought it was a good idea. (Id. at p. 263.)

According to defendants, Kwock did not offer McCrory a job or indicate in any way that Ventura County would hire her. (DSS, fact 35; Kwock decl., ¶¶ 3-4.) According to McCrory, Kwock telephoned McCrory briefly to tell her that she got the Supervisor’s approval and Kwock would be in touch. (McCrory decl., ¶ 5.) According to defendants, McCrory and Kwock’s conversations were limited to whether she was qualified to do the work and whether she was interested. (DSS, fact 36; Kwock decl., ¶¶ 3-4.) According to McCrory, the conversations also involved the potential for provided contracted service to three counties, Ventura County, Santa Barbara County, and San Luis Obispo County. (McCrory decl., ¶ 6.)

McCrory was one of several persons that Kwock contacted during a state-wide search he conducted for a Ventura County planning group, at the end of which he presented to the group a list of five or six possible candidates to consider as options to hire, including McCrory. (PSS, facts 37-38 [undisputed on this point].) The planning group was not obligated to hire from the list provided by Kwock. (PSS, facts 39-40 [undisputed on this point].) After Kwock received the Email in a letter not including a return address, Kwock called McCrory and informed her of this. (Kwock decl., ¶ 8.) Kwock also informed the planning group of the contents of the email. (Ibid.) Because of the information received in the letter, the planning group decided not to pursue McCrory as an option to consider for hire. (Ibid.) Ventura County did not hire anyone in 2014 for the position that the planning group was considering when Kwock and McCrory spoke. (PSS, fact 41 [undisputed on this point].)

On September 4, 2015, McCrory filed her original complaint for damages against County and Dark.

On October 28, 2015, County and Dark filed their answer to the complaint generally denying the allegations thereof and asserting 14 affirmative defenses.

On February 16, 2016, County and Dark filed a special motion to strike pursuant to Code of Civil Procedure section 425.16.

On April 4, 2016, the court granted the special motion to strike in part. (Note: The court grants defendants’ request to take judicial notice of the court’s minute order of April 4, 2016, ruling on this motion. (Evid. Code, § 452, subd. (d)(1).)) In so ruling, the court found that the initial publication of the Email to County employees was absolutely privileged under Civil Code section 47, subdivision (b), but that the republication of the Email to others was not activity subject to the special motion to strike. The court permitted McCrory to file a first amended complaint (FAC) which eliminated the claims struck by the special motion to strike.

On April 15, 2016, McCrory filed her FAC. The FAC asserts five causes of action: (1) defamation; (2) negligent supervision/ retention; (3) negligent investigation; (4) intentional interference with prospective economic advantage; and, (5) negligent interference with prospective economic advantage. (Note: A request for dismissal without prejudice as to the second and third causes of action was filed in the consolidated case, McCrory v. County of Santa Barbara, case number 15CV01554, on October 8, 2015.)

On June 1, 2016, defendants filed their notice of appeal as to the partial denial of the special motion to strike. On December 18, 2017, the Court of Appeal issued its opinion affirming this court’s ruling on the special motion to strike. On February 23, 2018, the Court of Appeal issued its remittitur.

On January 11, 2019, defendants filed their answer to the FAC generally denying the allegations thereof and asserting 15 affirmative defenses.

On July 24, 2019, defendants filed this motion for summary judgment, or alternatively, for summary adjudication. The motion addresses the first, fourth, and fifth causes of action. The motion is opposed as discussed below.

On September 18, 2019, McCrory filed her amendment to the FAC identifying Lockhart as defendant “Doe 1.” (For purposes of this motion, the court refers to moving parties County and Dark collectively as “defendants,” which term does not include newly-added defendant Lockhart.)

Analysis:

Defendants move for both summary judgment and for summary adjudication. “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) By contrast, “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).)

There is a procedural problem with the motion for summary judgment in that it assumes that there is an effective dismissal of the second and third causes of action. This assumption is incorrect. In case number 15CV01554, McCrory sought and obtained leave to proceed against defendants. The present case (No. 15CV02871) was filed as a separate action. A request for partial dismissal, without prejudice, as to the second and third causes of action was filed in case number 15CV01554 on October 8, 2015. This was erroneous because, at that time, the only complaint was filed in this case and not in case number 15CV01554. These two cases were consolidated by stipulation and order filed on June 13, 2016, with this case (number 15CV02871) as the lead case. Even if the voluntary dismissal is deemed effective in this case (rather than ineffective as filed in a different case), it is only effective as to the causes of action in the then-operative original complaint. The FAC was filed on April 15, 2016, after the entry of the requested dismissal as to the original complaint, restating the second and third causes of action. Although it may be that McCrory intended that the second and third causes of action remain dismissed, “ ‘ “It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.” ’ [Citation.] Thus, an amended complaint supersedes all prior complaints. [Citations.] The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130–1131.) As a result, the second and third causes of action are now effective (whether that is the parties’ intention or not) and so summary judgment cannot be granted on the FAC as now alleged. Additionally, because the court finds, as discussed below, that there are triable issues of fact as to some causes of action, summary judgment is precluded because defendants are not entitled to judgment on the entirety of this action.

(1) Adjudications re Republication

Defendants seek five alternative summary adjudications. The first four all address republication of the Email. The first requested adjudication is as to the first cause of action as against Dark, asserting that McCrory cannot establish that Dark was responsible for republishing the Email to the Mental Wellness Center or to Kwock. The second requested adjudication is as to the first cause of action against County, asserting that McCrory cannot establish that any County employee was responsible for republishing the Email or that McCrory has not identified a County employee other than Dark who was responsible. The third requested adjudication is as to the fourth and fifth causes of action against Dark, for the same reasons as the first requested adjudication. The fourth requested adjudication is as to the fourth and fifth causes of action against County, for the same reasons as the second requested adjudication.

“A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that 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. The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Whether or not defendants have met their initial burden on summary adjudication as to the first four requested adjudications, there are triable issues of fact that preclude summary adjudication. Defendants’ separate statement number 22, which is a fact set forth in support of each of the first four requested adjudications, is: “Neither Dark nor any of the other County employees who came into possession of her email to Dr. Wada sent it, or caused or influenced anyone else to send it to Cameron, Collins or Kwock.” In support of this fact, defendants provide the declarations of each person for whom there is evidence that the Email was communicated among the County employees.

“ ‘[W]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘“view the evidence in the light most favorable to plaintiff[] …’ and “liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.”’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.)

Separate statement fact number 22 is disputed by inferences from defendants’ own evidence that the County employees from whom declarations are presented here are the only persons who had access to the Email and the ability to send the Email to Cameron, Collins, or Kwock. McCrory provides her own evidence that she did not send the Email on. Because the copies of the Email that were sent to Cameron, Collins, and Kwock were nearly identical to the original Email, a reasonable inference is that one of the recipients of the Email must have been responsible for the republications here at issue. Under the standards for summary judgment, McCrory is excluded by her evidence. Thus, the only persons who could have republished the Email are Dark and “any of the other County employees who came into possession of her email.” A reasonable inference is that one of these persons sent it to Cameron, Collins, or Kwock. This inference logically disputes separate statement number 22. As a matter of logic, it is not necessary for McCrory to identify which of the persons listed in separate statement number 22 is or are particularly responsible in order to dispute separate statement number 22.

“‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).) A triable issue of fact is raised as to separate statement fact number 22. That triable issue of fact requires that the court deny each of the first four requested adjudications. The court therefore does not need to address other issues of fact presented by the separate statement facts for these requested adjudications.

Accordingly, the court will deny the motion for summary adjudication as to the first, second, third, and fourth requested adjudications.

(2) Adjudication re Interference

Defendants’ fifth requested adjudication is that the fourth and fifth causes of action (for intentional and negligent interference with prospective economic advantage, respectively) have no merit because McCrory cannot establish the disruption of an economic relationship that would have resulted in an economic benefit to her. Unlike the first four requested adjudications, this requested adjudication does not depend upon who sent the Email but instead depends upon the effect that the Email had upon its non-County recipients.

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.) The last two elements are the same for negligent interference. (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 1005.)

In this motion, the issue is presented in the fifth element of the cause of action as to whether there was economic harm proximately caused by the Email disrupting an economic relationship. The facts in support and in opposition to this motion are essentially undisputed. There is undisputed evidence that Kwock had approached McCrory regarding employment and that they had discussed preliminaries to employment, to the extent that Kwock included McCrory among those candidates Kwock presented to the Ventura County planning group as options to hire. These facts are not disputed by McCrory’s evidence providing a slightly different characterization of the same preliminary discussions. It is undisputed that Kwock was not the hiring authority and his recommendations were not determinative. It is also undisputed that after Kwock provided information about the Email to the planning group, McCrory was dropped from consideration. McCrory argues that the “harm was that Ms. McCrory was no longer eligible to be hired into that position.” (Opposition, at p. 24.)

Defendants also present undisputed evidence that, notwithstanding dropping McCrory from consideration, Ventura County did not hire anyone in 2014 for the position that the planning group was considering. (PSS, fact 41.) The undisputed evidence thus establishes that although McCrory was eliminated from consideration by the Email, no one was hired at the relevant time. Unlike other torts for which damages may be measured more broadly, the tort of interference requires proof of loss of economic benefit from the disrupted relationship. “Although varying language has been used to express this threshold requirement, the cases generally agree that it must be reasonably probable the prospective economic advantage would have been realized but for defendant’s interference.” (Youst v. Longo (1987) 43 Cal.3d 64, 71.) “[A] cause of action for tortious interference has been found lacking when either the economic relationship with a third party is too attenuated or the probability of economic benefit too speculative.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., supra, 2 Cal.5th at p. 515.)

Here, the undisputed evidence shows that there was no probability of economic benefit because there is no showing that McCrory would have been hired by the Ventura County planning group. The simple fact is that no one was hired at the relevant time. McCrory provides no evidence that had she not been removed from consideration, the hiring result would have been different to any degree of probability. This is not a situation, such as in FEHA claims, where evidence may be presented of a less qualified person being hired instead of the claimant.

Consequently, the court finds that defendants have met their initial burden on summary adjudication as to the fourth and fifth causes of action and that McCrory has failed to meet her burden to show a triable issue of fact. The motion for summary adjudication will be granted as to the fourth and fifth causes of action.

McCrory filed evidentiary objections that are not consecutively numbered as required by Rules of Court, rule 3.1354(b). The court declines to rule on these objection on the basis of the failure to comply with rule 3.1354(b). Otherwise, there are no evidentiary objections for which a ruling is required by the court. (See Code Civ. Proc., § 437c, subd. (q).)