Case Number: BC493160 Hearing Date: July 03, 2014 Dept: 40

SUSAN BROWN CAMPBELL v. ASSISTANCE LEAGUE OF SOUTHERN CALIFORNIA
MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Case No: BC493160
Date: July 3, 2014
Tentative Ruling: The motion for summary judgment is DENIED. The Court GRANTS summary adjudication of the third, fourth, seventh and tenth causes of action.

Procedural Issues
In its notice, ALSC seeks summary adjudication of each cause of action on the basis of their being no triable issue of material fact. Plaintiff argues that this is improper as the name of each cause of action was not specifically listed in the notice. The Court finds that since Defendant is seeking summary adjudication of every cause of action, this satisfies notice. See Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472,1478. The Court also notes that each cause of action is separately set forth in the Defendant’s separate statement, and the points and authorities address each cause of action separately.

The Court also notes that the opposing separate statement is largely an argument of Plaintiff’s theory of the case, rather than clearly stating disputed or undisputed, a citation to authority and the nature dispute, showing that the fact is controverted. This has made the Court’s review more challenging, but nevertheless, the separate statement and evidence is considered.

As to the objections, the objections to the Sommerstein and Stambelos Declarations are sustained; the objections to the Schimmel Declaration are overruled.

First Cause of Action: Disability Discrimination
Plaintiff alleges her termination was motivated by her disability, i.e. her cancer diagnosis, and her requests for time off under the CFRA due to that disability. (¶55.) The first cause of action appears to be attempting to assert theories of both harassment and discrimination. Defendant challenges both theories. To establish a prima facie case for disability discrimination, one must establish (1) the plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations; (3) the defendant’s adverse employment decision; and (4) the decision was made because of plaintiff’s actual or perceived disability or medical condition. (Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) An employer seeking summary adjudication must show there is no triable issue of an ability to perform the essential functions of available vacant positions not amounting to promotions, with or without accommodation. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 965.)

“In an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) Where employers present admissible proof that at least one prima facie element is lacking, or that the adverse employment action was based upon nondiscriminatory factors, employers are entitled to summary judgment, unless plaintiffs present admissible evidence showing a triable issue of material fact related to the employers’ showing. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) In moving for summary judgment, an employer satisfies its burden with evidence that a nondiscriminatory reason was the basis for employment termination. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-98.)
Defendant argues three points: (1) Plaintiff was not discriminated against on the basis of her illness; (2) she was not harassed on the basis of her illness; and (3) her termination was pursuant to the employment contract she entered into with ALSC.

ALCS argues Plaintiff’s claim fails because there is no evidence there was any discriminatory motive in her termination under her employment agreement. It is undisputed that Plaintiff was hired by ALSC as its Chief Executive Director on April 16, 2009 at an annual salary of $127,000. (DSS ¶1.) It is also undisputed that in 2011, Plaintiff approached the then Board President of ALSC, Wendy Overmire, regarding entering into a term employment contract. (DSS ¶4.)

One vs. Two Year Contract Issue: The Court notes that Plaintiff attacks the circumstances surrounding the execution of the employment contract to argue she was discriminated against on the basis of her disability. Plaintiff asserts that she was “promised” a two year automatically renewable contract but after her cancer diagnosis, ALSC reneged and offered her a one year contract. However, Plaintiff’s only support for the position that she was promised a two year contract is a July 2011 email sent by Harvey Rosen, ALSC’s counsel, to Plaintiff’s attorney indicating that Plaintiff and Ms. Overmire had been talking about a contract and had discussed the issue of a two year contract. (PSS ¶69.) This is not evidence that Plaintiff was promised a two year contract. Nor does Attorney Stamelos’ attempt to reframe the contract negotiations support this position. On September 21, 2011, Plaintiff informed Human Resources that she had been diagnosed with cancer and would require continuous leave followed by intermittent leave. (PSS ¶71.) On October 18, 2011, Plaintiff’s counsel sent her proposed terms, which included a 2 year duration, and Mr. Rosen indicated he was waiting to hear feedback from Ms. Overmire. (Stambelos Decl. Exh. H.) This does not indicate that Plaintiff was promised a two year duration on her contract. Further, Plaintiff again relies on the Rosen deposition to argue that after she informed ALSC of her diagnosis, ALSC reneged on the promise of a two year contract. (PSS ¶72.) However, again Plaintiff relies on inferences which are not supported by her referenced evidence. Here she points only to Rosen’s statement that her final contract was not for two years. Nowhere does she cite any testimony that states or raises an inference that ALSC promised her a two year contract or reneged on the promise of a two year contract upon learning she was ill. Ultimately, on November 1, 2011, Plaintiff and ALSC entered into an Executive Employment Agreement for a term of one year commencing on that date. (Schimmel Decl. Exh. C.)

As to discrimination, ALSC relies on Plaintiff’s deposition testimony in which she stated that her leave requests were never denied and she was permitted to work part time for a portion of her treatment. (DSS ¶18.) Defendant also emphasizes that Plaintiff was never told further leave requests would not be granted (DSS ¶20) and that the time of her termination, Plaintiff has no pending leave requests, no other requests for any accommodations, or any requests to alter her working conditions. (DSS ¶22) The argument presented by Defendant largely ignores the allegations in the complaint and the evidence cited largely consists of deposition questions which offer little information regarding what actually happened in the months leading up to Plaintiff’s termination. That she was terminated under the “without cause” provision of the contract does not conclusively prove that Plaintiff was not discriminated against. The Court finds that Defendant has not met its burden.

Further, whether or not Plaintiff’s opposition raises a triable issue of fact (as discussed below), it does highlight the fact that Defendant’s motion offers a very limited view into the timeline concerning Plaintiffs illness and her termination. From ALSC’s evidence, the sequence of events and what actually transpired is unclear.

Plaintiff challenges Defendant’s position by focusing on the issue of timing and the method by which her performance was apparently reviewed. Plaintiff takes the position that the Board directed a committee to secretly review Plaintiff’s work performance. However, the Goodman declaration states nothing more than the fact that the Board had discussed the fact that little progress had been made regarding the items mentioned in Plaintiff’s contract and sought to review her progress. (Bryant Decl. Exh. A p. 24:9-18.) Plaintiff’s opposition argues that while the Board President indicates that Plaintiff was evaluated using the metric identified in her contract, this information was not revealed in ALSC’s responses to written discovery. Further, while Plaintiff attempts to argue that the review of her performance was someone improper, she fails to cite to any evidence. It appears she is referring to the Leisner deposition generally. Plaintiff argues her termination was unfair because the due dates identified in her contract had not yet occurred. However, reviewing the contract, this does not appear to be well taken. (Schimmel Decl. Exh. C.)

Regarding Defendant’s position that there was a legitimate non-discriminatory business reason for Plaintiff’s termination, Defendant relies on the Executive Employment Agreement arguing Plaintiff was legally terminated pursuant to that Agreement. Here, Section D addresses termination and provides that where Plaintiff is terminated “without cause,” she must be given 90 days written notice and would receive her compensation through the effective date of her termination, plus a severance payment. (Schimmel Decl. Exh. C pp. 5-7.) The severance payment was to be the greater of (i) the salary she would have earned through the end of the term of the contract or (ii) six month’s salary. In arguing that Plaintiff was properly terminated, the motion relies primarily on the deposition testimony of Andrea Goodman. Ms. Goodman testified that the ALSC was experiencing financial difficulty and the Board lacked confidence in Plaintiff’s ability to lead the organization out of its budget issues. (Schimmel Decl. Exh. D.) Additionally, Goodman indicated in her testimony that there were a number of items spelled out in Plaintiff’s contract which the Board felt she has not made sufficient progress on. (Schimmel Decl. Exh. D pp. 21:22-23:9.) It was on this basis that the Board chose to terminate her without cause, or “buyout her contract,” as Goodman describes it. (Id.) The contract called for Plaintiff to be responsible for maintaining the financial stability of the League. (Schimmel Decl. Exh. C p. 2.)

Plaintiff argues there is a triable issue concerning whether the proffered reason for her termination was worthy of credence. She argues this by saying that “a jury could reasonably infer that Plaintiff’s medical leave, accommodations and medical condition were motivating factors from timing alone. She was terminated on the heels of a medical leave and other accommodations.” (Opp. p. 14:17-20.) Plaintiff describes the action taken after her termination – such as the drafting of a “key employee notification policy” and what she claims is mistreatment of Sommerstein based on her support of Plaintiff. (PSS ¶¶110-112.)

In the reply, Defendant argues that because Plaintiff was terminated “without cause” and the remainder of her contract bought out, the reason for her termination is not an issue. ALSC maintains the employment relationship between Plaintiff and ALSC was governed by this contract and Plaintiff was terminated pursuant to its terms. Here, Defendant seems to take the view that somehow the fact that Plaintiff was paid what she was due under the “without cause” provisions of her contract automatically precludes the possibility that her “without cause” termination truly was without cause – i.e. not motivated by discriminatory intent. However, ALSC may not use the employment contract as a shield. That Plaintiff was “bought out” under the contract does not definitely determine that her termination was proper. ALSC nevertheless has the burden of showing that the termination was for a legitimate business reason and not discrimination.

Regarding the harassment allegations, to prove that one has been subjected to unlawful harassment, is must be demonstrated that (1) the employer harassed employee; (2) on the basis of race, sex, or other grounds specified in Gov.Code, § 12940(h); and (3) harassment was sufficiently severe or pervasive to alter the conditions of employment. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 465.) Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity and job interference. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.) The elements of severe or pervasive harassment unreasonably interfering with work performance are assessed from the perspective of a reasonable person of the protected class of the plaintiff. (Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 877.) Harassment does not include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, excluding from meetings and laying off. (Thompson, supra 186 Cal.App.4th at 879.)

ALSC challenges Plaintiff’s claim of harassment on grounds Plaintiff has no evidence she was subjected to an abusive or offensive work related environment. Defendant fails to cite any evidence, arguing Plaintiff’s claim relies on vague claims that she heard comments about her absences from work and meetings and her assertion that she felt pressured to return to work, work more hours, answer emails while she was on leave, and to be more available. (Motion p. 9:7-11.) The portions of Plaintiff’s deposition provided do not address this issue. Thus, there is no evidence to support Defendant’s position. Defendant argues any pressure Plaintiff may have felt was a “personnel management function” and was due to her positions as Chie Executive Director. Again, Defendant argues Plaintiff was provided with every accommodation she requested and argues that she could not have been harassed due to her illness. Plaintiff’s opposition does not directly address the issue of harassment.

The Court finds that there is a material issue of fact whether Plaintiff was terminated due to disability discrimination due to the timing and circumstances of her termination.

Second Cause of Action – Interference/Retaliation for Exercising Rights under FEHA/CFRA
Plaintiff alleges her termination and adverse treatment took place shortly after she went on CFRA leave and during periods that she was off of work on medical leave. (¶66.) Defendant argues Plaintiff’s claim fails because ALSC did not interfere with her right to take CFRA leave and she was not retaliated against for taking such leave but was lawfully terminated under the employment agreement.

To prove that one has been retaliated against for taking CFRA leave, is must be shown that (1) the defendant was an employer covered by CFRA; (2) the plaintiff was eligible to take CFRA leave; (3) the plaintiff exercised a right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action as a result. (Dudley v. Department of Transp. (2001) 90 Cal.App.4th 255, 261.) Where an employer can establish a legitimate non-discriminatory reason for terminating an employee, that employee cannot state a valid claim for CFRA retaliation. (Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 519-520.)

Defendant’s argument relies on the issues discussed as to the first cause of action, that Plaintiff was permitted to take leave and provided a flexible schedule and she was lawfully terminated pursuant to the terms of her Executive Employment Agreement. Defendant fails to cite any evidence arguing “if ALSC has intended to interfere with her right . . . or retaliate against her, it would have refused to enter into a one year Agreement with her for continue employment.” (Motion p. 10:8-9.) While ALSC has an argument in that the one year contract was entered into after Ms. Brown Campbell’s cancer diagnosis was known to ALSC, that is not dispositive and is only one factor for the trier of fact to consider. The Court does not weigh the evidence on summary judgment/adjudication.

The Court finds that Defendant has not met its burden and denies summary adjudication of this cause of action.

Third Cause of Action – Discrimination Based on Age
Plaintiff alleges that at the time she was terminated, he was 62 years old and was qualified to work in her position. (¶77.) She alleges she had consistently performed her duties in a satisfactory manner and believes her age was a motivating factor in her termination. (¶78.) Defendant challenges this cause of action on grounds there is no evidence that Plaintiff’s termination was due to her age. Plaintiff concedes this cause of action.

Fourth Cause of Action – Failure to Provide Reasonable Accommodation
Plaintiff alleges she expressed her need for accommodations in the form of working remotely and/or portions of each workday with a limitation on the number of hours worked. (¶85.) She alleges she was initially accommodated but even as her work hours increased over time, Susan Liesner, the President of the Board of Directors, “and other continued to negatively comment upon her absences fro the workplace and her delay in responding to work related email correspondence.” (Id.) Plaintiff alleges that when her doctor returned her to a 32 hour work week, Defendant no longer wished to accommodate Plaintiff. (Id.)

To prove a cause of action for failure to provide a reasonable accommodation, one must establish (1) plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of a sought reassigned job with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193 (reasonable accommodations include job restructuring, modified work schedules, reassignments, providing readers or interpreters, and paid or unpaid leave); see also Scotch v. Art Insitute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 994 (“Reasonable accommodation” means “‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’”).)

“‘[T]he employer cannot prevail on summary judgment … unless it establishes … (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442.)

Here, Defendant argues Plaintiff cannot maintain this cause of action because ALSC provided Plaintiff with every accommodation she requested. Exhibit 2 to Plaintiff’s deposition is the letter she received from the ALSC stating that she is eligible for FMLA leave and might be eligible for disability from the State. (Schimmel Decl. Exh. B.) Further, in her deposition, Plaintiff testified that she was never denied a modified work schedule or time off and was never told that she would be denied further time off. (Schimmel Decl. Exh. B pp. 116:16-117:22; 148:9-149:6.) Defendant also argues that in any event, Plaintiff’s termination did not have to do with her disability as evidenced by the fact that at the time of her termination, she has been returned to a full time work schedule.

Here, Plaintiff again argues the key issue is timing. She argues after she informed the Board that she would be returning to work for 32 hours a week – just short of full time – she was terminated. Plaintiff emphasizes the fact that on March 19, 2012, the Board President sent an email to the Human Resources Director asking whether there was updated information concerning Plaintiff’s return to work. (PSS ¶93.) Plaintiff attempts to argue that shortly thereafter she was terminated and that based on this timing, it is clear it was based on her illness and a desire to no longer accommodate her. This does not establish that she was not accommodated and Plaintiff’s arguments fail to distinguish between facts supporting her claim that her termination was based on her disability and her claim that ALSC failed to accommodate her.

Thus, the Court grants summary adjudication as to this cause of action.

Fifth Cause of Action – Failure to Engage in the Interactive Process
Plaintiff alleges ALSC knew of her disability and restrictions yet failed to explore any options to accommodate her work restrictions, terminating her employment because she was perceived as being disabled. (¶¶90-91.) As to claims of failure to engage in the interactive process, employees “must identify a reasonable accommodation that was available at the time the interactive process should have occurred.” (Scotch v. Art Insitute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 994-95.) “ ‘[T]he plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.’” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 976.) Employers and employees are required to engage in communications in good faith towards exploring reasonable accommodations as to a known disability, unless futile. (Claudio v. Regents of Univ. of Cal. (2005) 134 Cal.App.4th 224, 249 (“summary judgment must be reversed because a triable issue exists as to whether the Regents could be liable based on the employer’s failure to engage in good faith in the interactive process.”).)

Again, ALSC’s motion and separate statement fail to offer any evidence specifically addressing this issue. Instead, it argues it repeatedly engaged in the interactive process and provided Plaintiff with every accommodation she requested. (Schimmel Decl. Exh. B pp. 116:16-117:22; 148:9-149:6.) The evidence cited and relied on addresses the accommodations Plaintiff requested and received. There is no evidence directly addressing the interactive process. Plaintiff also relies on the same arguments addressed herein.

Thus, the Court denies summary adjudication as to this cause of action on grounds Defendant has not met its burden.

Sixth Cause of Action – Failure to Prevent Discrimination and Harassment
Plaintiff alleges she was the victim of discrimination on the basis of her age, disability, and use of CFRA leave. (¶98.) Plaintiff alleges she was repeatedly told to stop working and was terminated because ALSC felt she could no longer do her job. (Id.) She also alleges that Defendant should have known that is managers/agents were engaging in this conduct. (¶99.)

To prove a claim for failure to prevent, one must prove (1) actionable discrimination or harassment by employees or non-employees; (2) defendant’s legal duty of care toward plaintiff (defendant is plaintiff’s employer); (3) breach of duty (failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. No. County Transit Dist. (1998) 63 Cal.App.4th 280, 287, 289.) After employers are informed of harassment, they must take immediate and appropriate action reasonably calculated to end the harassment. (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal. App. 4th 1612, 1630.) “Courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925 n.4.)

Defendant’s argument with regard to this cause of action is one sentence – Plaintiff was not discriminated against and as a result, this cause of action fails. The opposition does not address this cause of action. However, as discussed above, Defendant has not met its burden on the discrimination claims. Therefore, the motion for summary adjudication is denied.

Seventh Cause of Action – Retaliation
Plaintiff alleges she exercised her rights under FEHA and as a result was subjected to retaliatory treatment, suffering adverse employment actions including, but not limited to, intensified performance scrutiny, termination, and refusal to pay the amounts she was owed under the employment agreement. (¶107.) Defendant challenges this cause of action on grounds this cause of action is duplicative of her second cause of action and therefore fails on the same basis.

To prove a cause of action for retaliation, one must establish that (1) plaintiff engaged in a protected activity as employee; (2) employer subjected Plaintiff to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. (Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 874.) “Protected Activity” includes an employee requesting accommodation of a disability. (Wright v. CompUSA, Inc. (1st Cir.2003) 352 F.3d 472, 477-78.) “Government Code section 12940, subdivision (h) makes it unlawful for an employer ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’” (McRae v. Dept. of Corrections and Rehab. (2006) 142 Cal.App.4th 377, 386.)

Adverse employment actions can include demotions, reassignments, refusals to promote, unwarranted evaluations, tolerating harassment by coworkers, reprimands and suspensions. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1061.) In determining whether there was an adverse employment action to show discrimination or retaliation, courts look at the totality of circumstances and not just at each isolated act. (Yanowitz, supra, 36 Cal.4th at 1055.) An employee must prove she was “subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity.” (McRae, supra.)

Defendant argues this cause of action is duplicative because there is no evidence Plaintiff engaged in any protected activity other than taking a leave of absence and she has presented no evidence that she ever complained about any harassment or discrimination. Plaintiff testified that she never told anyone, prior to the termination of her contract, that she felt she was being retaliated against. (Schimmel Decl. Exh. C p. 207:14-24.) Further, the Human Resources Director, Robin Sommerstein, indicated that Plaintiff never complained of any harassing or discriminatory comments regarding her illness or her leave. (Schimmel Decl. Exh. F.) Sommerstein contradicts this with her declaration offered in support of the opposition, declaring that Plaintiff complained to her “informally” about the way she has been treated due to her illness. (Plaintiff’s Exh. D ¶10.) However, Sommerstein indicates that she was not asked to take any action because there was nothing she could do about the situation as it involved ALSC highest executives. (Id.) Plaintiff also raises an argument not raised in her complaint – that her attorney complained to Mr. Rosen about what Plaintiff perceives as discrimination and as a result, ALSC expedited her termination date. However, Plaintiff has not cited any evidence in support of this position.

Thus, the Court grants summary adjudication as to this cause of action.

Eighth Cause of Action – Wrongful Termination in Violation of Public Policy
Plaintiff alleges she was terminated on the basis of her disability and her decision to exercise her rights to take leave. (¶114.) Defendant argues this claim is baseless because Plaintiff was terminated pursuant to the express terms of the employment contact she negotiated.

To prove a claim for wrongful termination in violation of public policy, one must prove (1) the employee’s employment was actually terminated; (2) in violation of a policy that is (a) delineated in either constitutional or statutory provisions; (b) public in the sense that it inures to the benefit of the public; (c) well established at the time of the discharge; and (d) substantial and fundamental; and (3) damages. (Barbee v. Household Automotive Finance Corp. (2003) 113 Cal. App. 4th 525, 533.) Defendant takes the position that it exercised its rights under the employment agreement, choosing to terminate Plaintiff without cause. Based on this, Defendant argues Plaintiff cannot demonstrate any nexus between her termination and any protective activity. The motion merely reiterates the above discussed arguments, fails to offer any legal analysis, and does not cite any case law. As noted previously, that Plaintiff was terminated under the “without cause” provision of the employment contract does not conclusively establish that she was not discriminated against.

Thus, the Court denies summary adjudication as to this cause of action.

Ninth Cause of Action – Defamation
Plaintiff alleges members of ASLC’s Board of Directors communicated to numerous individuals that it had grounds to terminate Plaintiff “for cause” as defined by her Employment Agreement and that she was responsible for a material error in the budget. (¶119.) Defendant challenges this cause of action on grounds Plaintiff (1) Plaintiff was not terminated for cause so the allegations are baseless and (2) she has not identified any of the individuals to whom the statements were made and (3) even assuming these statements were made, they are protected by Civil Code §47(c).

The Court notes that neither the motion nor the separate statement offers specific evidence regarding the alleged defamatory statements. (DSS pp. 35:9-39:5.) A review of the evidence also indicates that it is completely silent on this issue. These three arguments appear to be entirely direct at the pleadings, not at the factual support for this cause of action or lack thereof.

To prove a claim for defamation, one must establish that (1) there was an intentional publication by defendant; (2) of statement of fact; (3) that is false; (4) defamatory; (5) unprivileged; and (6) has a natural tendency to injure or that causes special damages. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)

Regarding the first argument, that Plaintiff was not in fact terminated “for cause” does not negate the fact that she has alleged that statements were made regarding the assertion that the Board in fact had a basis for terminating her “with cause.” On this basis, Defendant has not met its burden.

The second argument likewise fails, as it appears to be a challenge to the pleadings in that Defendant argues Plaintiff has not alleged to whom the defamatory statements were made. That level of pleading specificity is not required. (Farr v. Bramblett (1955) 132 Cal. App. 2d 36, 46 (pleaders not required to allege to whom matters were published, but instead alleging matter was “published” is sufficient).)

Lastly, Defendant argues that to the extent Plaintiff alleges statements were made regarding her performance, they are not defamatory as they are communications regarding the character and qualifications of an employee. Defendant relies on the common interest privilege. The “common interest” privilege under § 47(c) immunizes communications concerning the reasons for terminating an employee made to fellow employees. (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440.) Paragraph 119 of the complaint alleges the comments were made internally by Susain Leisner, Floran Fowkes, and Harvey Rosen regarding whether there was a basis to terminate Plaintiff with cause. However, this privilege in qualified and the complaint alleges malice (¶124), an element ALSC does not address or negate with evidence.

ALSC also argues these statements qualify opinion or are protected by the defense of truth. Regarding truth, this defense is not addressed in the motion. Further, the substance of the alleged defamatory statement is apparently the fact that there was a basis for terminating Plaintiff for cause, contrary to the Defendant’s argument on demurrer that this is neither: (a) an opinion, or (b) a statement of negative opinion. (See Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601; and Jensen v. Hewlett-Packard Co. (1993) 14 Cal. App.4th 958, 966 – suggesting that neither type of statement would be defamatory.) The alleged defamation contains direct factual statements of the Plaintiff’s asserted misconduct from individuals in a position to know.

Thus, the Court denies summary adjudication as to this cause of action.

Tenth Cause of Action – Breach of Contract
Plaintiff alleges the Executive Employment Agreement was breached because she was terminated on discriminatory grounds, she was not provided with the 60 day notice called for in the contract; and was required to sign a settlement/release to receive her severance. (¶¶138-141.)

To succeed on a cause of action for breach of contract, it must be demonstrated that (1) there was a contract; (2) plaintiff performed or was excused from performance; (3) defendant breached or anticipatorily breached the contract; and (3) plaintiff suffered resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Regarding Plaintiff’s first ground for breach of contract – that she was terminated on discriminatory grounds – it is well taken that reviewing the contract (Schimmel Decl. Exh. C), even assuming Plaintiff was terminated on a discriminatory basis, this would not constitute a breach of her contract as there is no express provision addressing that issue. While Plaintiff attempts to challenge this assertion, she relies on case law where an employee was terminated “for cause” under false pretenses.

As to the second argument, that Plaintiff was given insufficient notice, it is undisputed that the employment contract calls for 60 days notice. Defendant relies on Exh. E, an email from Plaintiff’s counsel indicating she agreed to set her last day on a date less than 60 days from notice of her termination. (Schimmel Decl. Exh. E.) Defendant argues that even assuming the shorter notice is deemed a breach, there has been no damages as Plaintiff admits she was paid in full under the employment agreement was retained her benefits for longer than she was entitled to under the express terms of the contract. (DSS ¶¶11, 14, 15.)

Additionally, to the extent Plaintiff argues she was forced to sign a settlement agreement, the evidence indicates that she in fact did refuse to sign the agreement but was still paid the full severance she was owed. (Id.; Schimmel Decl. Exh. E.) Lastly, Plaintiff objects to the manner in which she was paid her severance. She alleges she had a right to a lump sum severance payment yet ALSC refused to pay her in one lump sum. (Complaint ¶140.) However, it is well taken that the employment merely defines the severance payment in terms of how it is to be calculated and does not provide for the form the payment it to take. Even assuming Plaintiff was to be paid on one lump sum, she admitted in her deposition testimony that she received the total amount due.

Given the fact that Defendant provides unrefuted evidence of no damages, the Court grants summary adjudication as to this cause of action.