Juarez v. Dish Network CA2/3 ( 2015 )

Filed 12/1/15 Juarez v. Dish Network CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
OSCAR JUAREZ et al., B256235
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC478065)
v.
DISH NETWORK CALIFORNIA SERVICE
CORPORATION et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Abraham Khan and Victor E. Chavez, Judges. Reversed with directions.
Daniel M. Graham for Plaintiffs and Respondents.
Littler Mendelson P.C., Marlene S. Muraco, Neda N. Dal Cielo, and Elisa Nadeau
for Defendants and Appellants.
_________________________
Plaintiff Oscar Juarez (Juarez), a former employee of defendant Dish Network
LLC (Dish), was terminated after a customer accused him of stealing a piece of jewelry.
Dish investigated, and although it could not determine whether Juarez took the jewelry, it
concluded that the “conservative thing to do is to separate [Juarez’s] employment.”
Juarez sued for wrongful termination, breach of contract, and defamation. The
court granted summary adjudication for Dish on the wrongful termination and breach of
contract claims, but allowed a jury to decide Juarez’s claim that he had been defamed by
Dish’s statements that his version of events “appeared to be less than credible” because
he had “not be[en] forthcoming” after the theft allegation. The jury found Dish liable for
defamation and awarded Juarez past economic losses of $258,605.
We reverse. An essential element of a cause of action for defamation is “ ‘the
existence of falsehood’ ” (McGarry v. University of San Diego (2007) 154 Cal. App. 4th
97, 112 (McGarry))—i.e., a provably false assertion of fact (Gallagher v. Connell (2004)
123 Cal. App. 4th 1260, 1270). The statements on which Juarez relies—that he appeared
“less than credible” and “not . . . forthcoming”—are subjective judgments, not assertions
of fact. Accordingly, because Juarez failed to present evidence of an essential element of
his defamation claim, the judgment must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND1
I.
The Parties
Dish is a provider of satellite-based television. From 2004 to 2011, Juarez worked
for Dish as a “field service specialist,” also referred to as an “installer” or “technician.”
In this capacity, Juarez was responsible for installing, upgrading, and repairing Dish
satellite television equipment in customers’ homes.
1
The following factual discussion is drawn from the testimony at trial.
2
II.
A Customer Accuses Juarez of Theft;
After Investigating, Dish Terminates Juarez
On July 19, 2011, Juarez installed equipment at a customer’s residence in
Wilmington, California. Sometime thereafter, the customer contacted Dish and reported
that a ring had been stolen from her during the installation. The complaint was received
on August 2, 2011 by Damon Candelaria, a member of Dish’s “Resolution Team,” the
group responsible for receiving customer complaints and damage claims.
Candelaria provided notice of the theft allegation to Carlos Valadez, the
installation manager of the Hawthorne office where Juarez worked, and asked that the
allegation be investigated internally. Valadez forwarded the request to Jill Yoshimi
(Regional Human Resources Manager), Frank Sandoval (General Manager of the
Hawthorne office), and Mike Barthelme (Regional Operations Manager).
Yoshimi called Juarez on August 2, 2011, and told him she had some questions
about an installation. She told him the customer’s name and address, the city where the
customer lived, the date of the installation, and the kind of equipment Juarez had
installed, to “try[] to refresh his memory.” Yoshimi testified that she repeated the same
information about five times, and each time Juarez said he did not recall the job or the
customer. According to Yoshimi, Juarez did not recall anything about the job or the
customer until she revealed the allegation of theft. Immediately thereafter, Juarez “then
recalled a lot of details about the customer. And he even mentioned that he recalled there
was a laptop in the customer’s living room.” Based on Juarez’s response, Yoshimi
formed the impression that Juarez had not been forthcoming. However, she “couldn’t tell
if he [took] the ring.”
Juarez had a somewhat different recollection of his conversation with Yoshimi.
He agreed that she told him the customer’s name, address, and phone number, as well as
the kinds of receivers he had installed in the customer’s home. Yoshimi asked Juarez
why he could not recall the job or customer, and he said he did 10 to 15 jobs per week,
and Yoshimi was asking him about an installation he had done three weeks earlier.
3
Yoshimi repeated the customer’s information for about 20 minutes, and then told Juarez
that the reason she was calling was that the customer had accused him of stealing jewelry
from her home. Juarez said he would never steal anything from anyone’s home.
Yoshimi told him that due to the allegation, Dish would have to put him on
administrative suspension. About two minutes later, Juarez finally recalled the customer
and described her and the home to Yoshimi.
Yoshimi also spoke with the customer about the theft allegation. The customer
said she looked for the ring immediately after the installation but could not find it. She
described the ring as a cat’s eye ring with a small diamond in a gold setting. The
customer said she called Dish the day after the installation and was told to report the theft
to “FHTM Fortune High Tech Marketing.” She did so, but never received a call back;
she therefore contacted Dish again and spoke with someone in the Corporate Field
Resolutions department. Yoshimi testified that she found the customer to be credible
based on her demeanor and because she did not ask for anything from Dish other than the
ring back.
On August 5, 2011, Yoshimi received the results of a background check of Juarez.
He had no previous disciplinary action involving theft.
On August 8, 2011, Yoshimi sent an email to Jim Hankins (Director of
Compliance and Ethics), Keri Francavilla (an investigator with Compliance and Ethics),
Deborah Cooper (Director of Human Resources), Ron Grady (Vice President, Western
Region), Atul Raj (Regional Director for the Southwest Region), Mike Barthelme, and
Frank Sandoval regarding her investigation of Juarez. In relevant part, the email said,
“On Tuesday, August 2, Jill Yoshimi interviewed Oscar Juarez. When Jill asked about
the details of the install, Oscar did not recall the customer or anything about the
installation. Jill continued to give Oscar all the information about the installation such as
the job type, receivers, address, and how long he took on the job. It wasn’t until Jill told
Oscar that the customer is making allegations about missing jewelry he was then able to
remember that specific job. Oscar denied taking jewelry from the customer. He did not
see anything of value at the customer’s house other than a laptop in the living room. . . .
4
[¶] On August 2 & 3, Jill was able to get in contact with customer, [name redacted].
Ms. [] alleged that our technician took her ring; description of the ring, Cats Eye stone
with a small diamond on top in a gold setting. The ring has been in the family for years
and it was her great grandmother’s. She states that the ring was in the master bedroom on
a dresser on top of a glass piece. Ms. [] looked for the ring after the installation was
completed and called DISH the following day to report it missing.”
On August 10, 2011, Yoshimi participated in a conference call with Ron Grady,
Atul Raj, Mike Barthelme, and Keri Francavilla. Yoshimi related the customer’s theft
allegation, her conversation with Juarez, and her impression that Juarez had not been
forthcoming. She did not say that she had concluded that Juarez had stolen the ring.
Instead, she said her investigation was inconclusive: “We [couldn’t determine] if [he] did
or did not take the ring.” Based on Yoshimi’s investigation, Raj and Barthelme
recommended reinstating Juarez “because he has no previous issues with customer
complaints or allegations of theft.” Grady recommended terminating Juarez “based on
the technician’s statement by not providing Jill any of the details until revealing the
allegations.” No one on the conference call expressed the opinion that Juarez had stolen
the ring. However, everyone on the call agreed that Juarez had violated the company’s
investigations policy.
On August 13, 2011, Keri Francavilla sent an email to Erik Carlson (Executive
Vice President, Dish Network) and Stephen Wood (Executive Vice President, Human
Resources), with copies to Hankins, Cooper, Yoshimi, Raj, Barthelme, and Grady, which
said as follows: “The team has looked into the allegation of theft of a ring by our
technician. The allegation is inconclusive and the team is split on the recommendations.
[¶] Important facts to consider:
“—We cannot say if the tech did or did not take the ring.
“—We believe the customer[’]s version of events and details are credible.
“—The technician appears a little less credible in that he was only able to recall
the details of this particular job after he was told there was an allegation of theft of
jewelry.
5
“—No police report was filed.
“—Background is clear.
“—Tech[] is a long term employee with relatively good performance. [¶]
“Ron [Grady] feels based on the interview the tech[’]s credibility is somewhat
lower and we should term. [¶]
“Atul [Raj] and Mike [Barthelme] would prefer to retain the tech based on what
they know of the individual and his performance and do not feel there is enough to
support the allegation of theft. [¶]
“Please provide your thoughts on this one or advise if there is any other
information or clarification you need.”
Stephen Wood replied by email: “In these ‘split’ cases – I go with the highest
ranking person’s recommendation.”
The same day, Deborah Cooper emailed Wood, Francavilla, and Hankins, as
follows: “Ron and I talked in detail about this case last week. It truly is one where we
don’t know what happened. The only thing that stands out is that the tech had no
recollection of the customer or the job until Jill told him about the allegation of the theft
of the ring. Then the tech remembered the job and [the] customer, stat[ing] that there was
a laptop but there was no jewelry. It struck us as odd that the ring triggered his memory
but then he claimed he didn’t see a ring. [¶] Therefore, although we recognize we might
have this one wrong, the conservative thing to do is to separate employment[,] which is
what Ron and I recommend.”
Erik Carlson responded: “I will support Ron on this . . . and agree with Stephen’s
view on split cases.”
On August 26, 2011, Dish terminated Juarez’s employment. During the exit
interview, Yoshimi reviewed with Juarez a termination memo, which said as follows:
“On August 2, 2011, a customer contacted DISH Network with an allegation of theft of
jewelry from the customer’s home involving Mr. Juarez. An investigation was conducted
regarding the allegation. [¶] Per the employee handbook on page 15, DISH Network has
the right, at any time, to investigate matters involving suspected or alleged violations of
6
DISH Network policies, practices, expectations, any applicable law or any other behavior
deemed relevant to employment with DISH Network. You are expected to cooperate
fully with DISH Network investigations. You are expected to maintain confidentiality
and answer questions truthfully, completely, and to the best of your ability. [¶] We
cannot determine if Mr. Juarez took the customer’s jewelry, however, his version of the
events appears to be less than credible by not being forthcoming during his interview.
The decision has been made to terminate his employment effective August 26, 2011 for
Policy Violation.”
Juarez testified that during the August 26, 2011 interview, Yoshimi told him that
she felt he had not been truthful with her during their original phone call on August 2,
2011. He said, however, that neither Yoshimi nor anyone else at Dish ever accused him
of stealing.
Following his termination, Juarez sent a letter to Erik Carlson asking to be
reinstated. Among other things, Juarez said in the letter that the reason for his
termination “was not the outcome of the theft [sic] but the fact that when I had the initial
phone call with Jill [Yoshimi] I was ‘less than credible . . . and forthcoming during [my]
interview.’ [¶] . . . I feel that this decision was unjust and uncalled for taking into
account my work record, ethics, and time with the company.”
III.
Juarez’s Attempts to Find New Employment
It was undisputed that Dish had a policy not to “provide performance-based
references for current or previous employees,” but only “to verify dates of employment,
start date, end date and job title.” It was also undisputed that consistent with that policy,
Dish did not publish any information about Juarez’s termination to anyone outside the
company. However, Juarez testified that when asked during job interviews with
prospective employers why he was no longer working for Dish, “I told them, well, there
was an incident where a customer . . . allegedly said I stole something; and my HR felt
like I was lying to her and she let me go.” He said he made similar disclosures to
members of his family and to several friends when he asked them if their employers were
7
hiring. He also submitted a written job application under penalty of perjury in which he
stated that he left Dish because “there was an accusation but nothing was ever proven, so
both sides decided to go their separate ways.” Juarez said that statement was
“somewhat” true.
Juarez ultimately got a job in May 2013 working with adults with disabilities. In
July 2013, he was offered and accepted a job with a casino.
IV.
The Present Action; Dish’s Motion for
Summary Judgment or Summary Adjudication
Juarez and his wife, Martha Juarez, filed the present action on January 31, 2012,
against six Dish entities: Dish Network LLC, Dish Network Corporation, Dish Network
California Service Corporation, EchoStar Satellite Services LLC, EchoStar Satellite
Corporation, and EchoStar Corporation.2 Juarez alleged four causes of action:
(1) discharge in violation of public policy; (2) breach of implied-in-fact contract;
(3) defamation; and (4) breach of implied covenant of good faith and fair dealing.
Martha Juarez alleged an additional cause of action for loss of consortium.
In July 2013, Dish moved for summary judgment or, in the alternative, for
summary adjudication of each of Juarez’s causes of action. On October 15, 2013, the
trial court denied the motion for summary judgment, but granted summary adjudication
of the causes of action for breach of implied-in-fact contract, breach of implied covenant
of good faith and fair dealing, and discharge in violation of public policy. The court
denied summary adjudication as to defamation.
2
Throughout this opinion, we refer to the various Dish entities collectively as
“Dish.”
8
V.
Trial and Judgment
The case went to trial on the single remaining cause of action for defamation.
Plaintiff claimed he had been defamed in two different ways: by the internal discussions
of the theft investigation within Dish, and because he was compelled to “republish” to
potential employers the fact that he had been accused of theft and found by the company
not to have been credible. His counsel argued that these discussions and compelled
republications were assertions of fact, not opinion: “There’s no opinion here. These are
facts. He was less than credible, according to Dish. He didn’t completely cooperate. He
was untruthful; i.e., he’s a liar and more or less a thief. I mean, that’s the reasonable
interpretation of all these accusations. And they’re all based on the employee handbook,
which you’re going to have in evidence . . . . [¶] What have they proven? What
evidence have they submitted to you that he didn’t cooperate, that he was untruthful, that
he was less than credible? These are not opinions, ladies and gentlemen. These are
statements of fact which must be communicated to future employers.”
Dish’s counsel argued to the jury that the only people with whom Dish discussed
the investigation of the theft allegations were Dish employees, that Juarez was under no
obligation to “republish” the allegedly defamatory statements, and that all of the alleged
defamatory statements were opinion, not fact.3
Following deliberations, the jury returned the following special verdict:
Question No. 1: Did Juarez prove that it is more likely true than not true that any
agent or employee of Dish made one or more of the following statements to Juarez:
(1) “that ‘[Plaintiff’s] version of the events appeared to be less than
credible by not being forthcoming during his interview’; OR
(2) “that ‘Oscar Juarez did not cooperate fully with DISH’S investigator
regarding an allegation of theft of jewelry from a customer’s home’; OR
3
At the close of evidence, Dish made a motion for nonsuit as to a variety of issues.
The trial court granted a nonsuit as to (1) punitive damages and (2) Juarez’s claim that
Dish “made a statement that Mr. Juarez was involved in a theft of jewelry.”
9
(3) “that ‘Oscar Juarez did not answer questions truthfully regarding an
allegation of theft of jewelry from a customer’s home’; OR
(4) “that ‘Oscar Juarez did not answer questions completely regarding
an allegation of theft of jewelry from a customer’s home’; OR
(5) “that ‘Oscar Juarez did not answer questions to the best of his ability
regarding an allegation of theft of jewelry from a customer’s home.’ ”
Answer: Yes.
Question No. 1(A): Please identify which of the statements listed above plaintiff
proved were made to him. Answer: 1, 2, 3, 4, 5.
Question No. 2: Did Juarez prove that it is more likely true than not true that one
or more of the statements you identified in response to Question 1(A) is a statement of
fact and not a statement of opinion? Answer: Yes.
Question No. 2(A): Please identify which of the statements listed above plaintiff
proved was a statement of fact. Answer: 1, 2, 3, 4, 5.
Question No. 3: Was any statement that you identified in response to Question
No. 2(A), above, communicated [by DISH] to someone who was NOT an “interested
party”? Answer: Yes.
Question No. 3(A): Please identify which of the statements listed above was
communicated to someone who was not an “interested party.” Answer: 1, 2, 3, 4, 5.
Question No. 4: Did Juarez prove that it is more likely true than not true that the
individual(s) who made the statement(s) that you identified in response to Question 3A
above, made that statement with “actual malice”? Answer: Yes.
Question No. 4(A): Please identify which of the statements listed above were
made with “actual malice”? Answer: 1, 2, 3, 4, 5.
Question No. 5: Did Juarez prove that it is more likely true than not true, that he
was under strong pressure to communicate one or more of the statements that you
identified in response to Question 4A to any prospective employer? Answer: Yes.
Question No. 5(A): Please identify which of the statements listed above plaintiff
was under a strong pressure to communicate to a prospective employer? Answer: 1, 2, 4.
10
Question No. 6: Did Juarez establish that it is more likely true than not true that
when one or more of the statements identified in response to Question 5(A) was made,
the person who made the statement would have known that Juarez would be under strong
pressure to communicate the statement to a prospective employer? Answer: Yes.
Question No. 6(A): Please identify which of the statements listed above plaintiff
proved the person who made the statements should have known Juarez would be under a
strong pressure to communicate to a prospective employer? Answer: 1, 2, 4.
Question No. 7: Did Juarez prove that it is more likely true than not true that he
communicated one or more of the statements you identified in response to Question 6A to
any prospective employer? Answer: Yes.
Question No. 7(A): Please identify which of the statements listed above plaintiff
communicated to a prospective employer? Answer: 1, 2, 4.
Question No. 7B: Please identify the date(s) that Plaintiff proved he made the
statements to a prospective employer. Answer: March 2013.
Question No. 8: Were all the statements you identified in response to 7A
substantially true? Answer: No.
Question No. 8A: Which statements identified above were not substantially true?
Answer: 1, 2, 4.
Question No. 9: Did Juarez prove that it is more likely true than not true that any
person to whom one or more of the statements that you identified in response to Question
8(A) was communicated reasonably understood that it tended to injure Juarez in his
particular occupation as a Satellite Technician? Answer: Yes.
Question No. 9(A): Please identify by number which statements were reasonably
understood by the hearer as likely to injure Juarez in his occupation. Answer: 1, 2, 4.
Question No. 10: Did Juarez prove that it is more likely true than not true that one
of the statements you identified in response to Question 9A was a substantial factor in
causing Juarez actual harm? Answer: Yes.
Question No. 10(A): Please identify by number which statements were a
substantial factor in causing Juarez harm. Answer: 1, 2, 4.
11
Question No. 11: Did Juarez prove that it is more likely true than not true that he
suffered actual damages as a result of one or more of the statements that you identified in
response to 10(A) being communicated by Juarez to any prospective employer?
Answer: Yes.
Question No. 11(A): Please identify which of the statements plaintiff proved he
suffered damages as a result of. Answer: 1, 2, 4.
Question No. 11(B): What are Juarez’s damages?
Total past economic loss: $258,605.30
Total past non-economic losses: $0
TOTAL: $258,605.304
VI.
Motion For New Trial; Appeal
Dish moved for a new trial on the grounds that (1) the trial court erred in refusing
to instruct the jury that Juarez’s damages for compelled self-publication were limited to
those damages he sustained after the date of such compelled self-publication; and (2) the
jury’s damages award was excessive. On April 4, 2014, the trial court denied the motion
on both grounds. Dish timely appealed.
CONTENTIONS
Dish contends there was no substantial evidence that (1) Dish made any false
statements about Juarez, (2) the allegedly defamatory statements were assertions of fact,
(3) the allegedly defamatory statements were not privileged, (4) Juarez was under a
strong compulsion to publish the allegedly defamatory statements to prospective
employers, and (5) Juarez suffered actual damages in the amount awarded. Dish also
contends that (6) the special verdict form was fatally defective.
Juarez contends that each element of his cause of action for defamation was
supported by substantial evidence, and there were no defects in the special verdict form.
4
On a separate special verdict form, the jury found for Dish on Martha Juarez’s loss
of consortium claim.
12
As we now discuss, we conclude that the allegedly defamatory statements were
subjective judgments, not provably false assertions of fact. As such, they are not
actionable defamation as a matter of law. Because this conclusion requires reversal of
the judgment for Juarez, we do not address any of Dish’s remaining claims.
DISCUSSION
I.
Applicable Law
A. Defamation Generally
Defamation is “a false and unprivileged publication” that exposes a person “to
hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or
which has a tendency to injure him in his occupation.” (Civ. Code, § 45.) To state a case
for defamation, a plaintiff must establish five elements: “ ‘(1) a publication that is
(2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or
causes special damage.’ ” (Sanders v. Walsh (2013) 219 Cal. App. 4th 855, 862.)5
“ ‘The sine qua non of recovery for defamation . . . is the existence of a
falsehood.’ [Citation.]” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal. 3d 254,
259.) Thus, a claim for defamation fails unless the challenged statement can be
reasonably understood to express or imply a “provably false” assertion of fact.
(Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19-20, italics added; see also Kahn
v. Bower (1991) 232 Cal. App. 3d 1599, 1607-1608; accord, James v. San Jose Mercury
News, Inc. (1993) 17 Cal. App. 4th 1, 13 [“there is also constitutional protection ‘for
5
Statements that contain such a defamatory charge directly, and without the need
for explanatory matter, are libelous per se. (Civ. Code, § 45a.) A statement can also be
libelous per se if it contains a charge by implication from the language employed by the
speaker and a listener could understand the defamatory meaning without the necessity of
knowing extrinsic explanatory matter. (McGarry, supra, 154 Cal.App.4th at p. 112.)
“However, if the listener would not recognize the defamatory meaning without
‘knowledge of specific facts and circumstances, extrinsic to the publication, which are
not matters of common knowledge rationally attributable to all reasonable persons’
[citation], the matter is deemed defamatory per quod and requires pleading and proof of
special damages. [Citation.]” (Ibid.)
13
statements that cannot “reasonably [be] interpreted as stating actual facts” about an
individual’ ”].)
To ascertain whether the statements in question are provably false factual
assertions, courts consider the “ ‘totality of circumstances’ ”—i.e., “the meaning of the
language in context and its susceptibility of being proved true or false.” (Moyer v.
Amador Valley J. Union High School Dist. (1990) 225 Cal. App. 3d 720, 725 (Moyer);
see also GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal. App. 4th 141, 156, citing
Nygard, Inc. v. Uusi–Kerttula (2008) 159 Cal. App. 4th 1027, 1049.) “ ‘Where the
language of the statement is “cautiously phrased in terms of apparency,” the statement is
less likely to be reasonably understood as a statement of fact rather than opinion.’ ”
(Dong v. Board of Trustees (1987) 191 Cal. App. 3d 1572, 1584.)
“The ‘ “crucial question of whether challenged statements convey the requisite
factual imputation is ordinarily a question of law for the court.” ’ [Citation.]” (Bently
Reserve LP v. Papaliolios (2013) 218 Cal. App. 4th 418, 427.) Only if a statement “is
‘ambiguous and cannot be characterized as factual or nonfactual as a matter of law’ ”
should a jury be permitted to determine whether the statement contains an actionable
assertion of fact. (Ibid.) “ ‘The allocation of functions between court and jury with
respect to factual content is analogous to the allocation with respect to defamatory
meaning in general. On the latter issue, the court must first determine as a question of
law whether the statement is reasonably susceptible of a defamatory interpretation; if the
statement satisfies this requirement, it is for the jury to determine whether a defamatory
meaning was in fact conveyed to the listener or reader. [Citations.] Similarly, it is a
question of law for the court whether a challenged statement is reasonably susceptible of
an interpretation which implies a provably false assertion of actual fact. If that question
is answered in the affirmative, the jury may be called upon to determine whether such an
interpretation was in fact conveyed.’ ” (Id. at p. 428.)
14
B. “Subjective Judgments” Are Not Provably False Statements of Fact
In evaluating defamation claims, California courts have distinguished between
“verifiable facts” and “subjective judgments.” (Moyer, supra, 225 Cal.App.3d at p. 725.)
“The essential difference between a statement of fact and a statement of opinion is that a
statement of fact implies a provably false factual assertion while a statement of opinion
does not.” (Gallagher v. Connell (2004) 123 Cal. App. 4th 1260, 1270.) For example, a
statement that an individual is “ ‘extremely rude’ ” “is not defamatory because it does not
make a factual assertion capable of being proven true or false. Whether someone is
‘extremely rude’ is a subjective judgment of the person making the statement.” (Ibid.)
The Court of Appeal addressed the demarcation between objective fact and
subjective judgment in McGarry, supra, 154 Cal.App.4th at p. 102. There, after the
University of San Diego (University) terminated plaintiff McGarry’s employment as its
head football coach, the University president met with the parents of the football players.
The parents asked why McGarry had been terminated, and the president responded that
she could not comment. One parent, after stating that the timing of the termination was
unfortunate, asked, “ ‘Was it criminal or morality dealing with this school? Yes or No?
[¶] . . . [¶] If you say yes, I can live—I’ll back you 100 [percent]. If you say no, your
timing’s bad and I can’t back you [any] more. Criminal or morality?’ ” The president
eventually responded, “ ‘I can say that Coach McGarry was not involved to our
knowledge in any criminal activity.’ ” (Id. at p. 105.)
McGarry sued the University and others for defamation, among other things.
(McGarry, supra, 154 Cal.App.4th at p. 102.) The defendants moved to strike the
defamation claims pursuant to the anti-SLAPP statute, Code of Civil Procedure section
425.16. The trial court granted the anti-SLAPP motion, and McGarry appealed.
(McGarry, at p. 103.)
The Court of Appeal affirmed. Among other things, it concluded that McGarry
was not likely to prevail on his claim that the president’s statement to the parents was
defamatory because it “was not reasonably susceptible of being interpreted to imply a
provably false assertion of fact.” (McGarry, supra, 154 Cal.App.4th at p. 116.) The
15
court explained: “[E]ven assuming we accepted McGarry’s claim that [the president]
impliedly asserted he had engaged in some unspecified immoral behavior, the statement
still is incapable of being interpreted as implying a provably false assertion of fact.
Behavior that might qualify as immoral to one person, although being perfectly
acceptable to another person, demonstrates that an amorphous assertion of immoral
behavior is within the range of statements of opinion that are not actionable. [¶] Because
[the president’s] statement contains no hint of what conduct she believed McGarry had
engaged in that would be immoral, her statement neither contained nor implied a
provably false assertion of fact, but at most implied an opinion. . . . ‘Indeed, the Court
could not instruct the jury on how to evaluate the truth of a charge of immorality without
entering an age old debate better left to philosophers.’ ” (Id. at pp. 116-117; see also
Moyer, supra, 225 Cal.App.3d at p. 725 [statements that a teacher was “ ‘a babbler’ ” and
“ ‘the worst teacher at [the school]’ ” were not actionable because they were expressions
of the speaker’s “subjective judgment” that “contain[ed] no verifiable facts”].)
The court applied these concepts to a defamation action arising out of an
employee’s performance review in Jensen v. Hewlett-Packard Co. (1993) 14 Cal. App. 4th
958 (Jensen). There, the plaintiff sued his employer after receiving an unfavorable
performance evaluation. He was subsequently terminated. Plaintiff’s suit did not allege
wrongful termination or constructive discharge, but proceeded solely on the claim that
that the unfavorable performance review was libelous and in breach of the implied
covenant of good faith and fair dealing. (Id. at p. 967.) The trial court granted a nonsuit
following plaintiff’s opening statement, and plaintiff appealed. (Id. at p. 969.)
The Court of Appeal affirmed. It noted that the communication at issue was an
evaluation of plaintiff’s performance, prepared by plaintiff’s manager in the course of his
designated duties: “[T]he word ‘evaluation’ denotes opinion, not fact. ‘Evaluation’ is
defined in Webster’s Third New International Dictionary (1981) page 786, as ‘. . . the act
or result of evaluating: Judgment Appraisal, Rating, Interpretation.’ To ‘evaluate’ is:
‘ . . . to examine and judge concerning the worth, quality, significance, amount, degree,
or condition of.’ (Ibid.) The dictionary definition is not necessarily dispositive of the
16
fact/opinion issue, but it certainly implies the defendants’ intended legitimate purpose of
the document, i.e., its use as a management tool for examining, appraising, judging and
documenting the employee’s performance.” (Jensen, supra, 14 Cal.App.4th at p. 970.)
Further, the court noted that the contents of the evaluation—including that plaintiff
had not “ ‘increased his skill,’ ” was not “ ‘pulling his weight,’ ” appeared to lack
concern for management’s need for information, had “ ‘weak’ ” knowledge of project
management and process control, displayed “ ‘questionable judgment,’ ” displayed a
“ ‘lack of attention’ ” to tasks and “ ‘overall communication with the team,’ ” and was the
subject of a “ ‘tremendous amount of negative feedback’ ”—were statements of opinion,
not fact. (Jensen, supra, 14 Cal.App.4th at p. 971 & fn. 14.) Accordingly, the court 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 [citation], 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 p. 965.)
The court noted finally that its conclusion was consistent with the California
Supreme Court’s holding in Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, that
tort remedies are not available for breach of the implied covenant of good faith and fair
dealing in an employment contract. (Jensen, supra, 14 Cal.App.4th at p. 972.) While
noting that employees frequently deny the basis for an employer’s criticism, “we are
compelled to conclude the court is an inappropriate forum for resolution of this
grievance. No matter the denomination of the cause of action, employers should neither
be required to justify performance evaluations by reference to objectively provable facts,
nor subjected to fear of liability for good faith, but mistaken, judgments about the value
of an individual employee to the business enterprise.” (Id. at pp. 974-975.)
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II.
Dish’s Allegedly Defamatory Statements Were Non-
Actionable Because They Were Subjective Judgments,
Not Verifiable Assertions of Fact
Plaintiff argued to the jury that Dish communicated to him five defamatory
statements about the reasons for his termination, which he was under a strong pressure to
communicate, and did communicate, to prospective employers. The jury found that
Juarez was harmed by the publication of three of the allegedly defamatory statements
(identified as statements 1, 2, and 4 on the special verdict form), as follows:
(1) Juarez’s “version of the events appeared to be less than credible by not
being forthcoming during his interview”;
(2) Juarez “did not cooperate fully with Dish’s investigator regarding an
allegation of theft of jewelry from a customer’s home”; and
(4) Juarez “did not answer questions completely regarding an allegation of
theft of jewelry from a customer’s home.”
The first allegedly defamatory statement—that Juarez’s “version of the events
appeared to be less than credible by not being forthcoming during his interview”—is not
actionable as a matter of law because it expresses Yoshimi’s subjective evaluation of
Juarez’s demeanor and willingness to answer questions during his interview, not a
provably false assertion of fact. Had Yoshimi stated that Juarez had lied (or “is a liar”),
that assertion could potentially have given rise to a defamation claim because an
accusation of lying “implies a knowledge of facts which lead to the conclusion that [the
plaintiff] told an untruth.” (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18.) In
contrast, Yoshimi’s statement did not imply knowledge of facts leading to the conclusion
that Juarez told an untruth—to the contrary, Yoshimi expressly disclaimed such
knowledge, stating that she “could not determine if Mr. Juarez took the customer’s
jewelry.” All the statement said was that Juarez “appeared” (to Yoshimi) not to be
“forthcoming,” and therefore to be “less than credible.” Like the statements in McGarry
and Jensen, Yoshimi’s subjective evaluation of Juarez’s apparent credibility is
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nonactionable because it cannot be proved true or false. (See Dong v. Board of Trustees
(1987) 191 Cal. App. 3d 1572, 1587 [phrases “ ‘I claim that’ ” and “ ‘I consider that’ ”
“are plainly expressions of opinion”].)
For the same reasons, the second and fourth allegedly defamatory statements, like
the first statement, are statements of opinion, not fact, and thus are not actionable. But
there is an even more fundamental problem with these alleged statements: There was no
evidence at trial that these statements were either made to Juarez or published to any
potential employers. The evidence at trial was that the only communications between
Dish and Juarez about the reasons for his termination were during a brief meeting on
August 26, 2011, when Yoshimi told Juarez he was being terminated. Juarez testified
that Yoshimi presented him with a termination memorandum and told him she felt he had
not been truthful with her during their original phone call on August 2. The
memorandum said that a customer had accused Juarez of jewelry theft, and noted
Juarez’s obligation, as stated in Dish’s employee handbook, to “cooperate fully with
DISH Network investigations” and to “answer questions truthfully, completely, and to
the best of your ability.” The termination memorandum then stated as follows: “We
cannot determine if Mr. Juarez took the customer’s jewelry, however, his version of the
events appear[ed] to be less than credible by not being forthcoming during his interview.
The decision has been made to terminate his employment effective August 26, 2011 for
Policy Violation.”6 (Italics added.)
There is nothing in the termination memorandum or Juarez’s testimony to support
the jury’s finding that Dish communicated that Juarez “did not cooperate fully with
Dish’s investigator regarding an allegation of theft of jewelry from a customer’s home”
or that Juarez “did not answer questions completely regarding an allegation of theft of
jewelry from a customer’s home.” Although the termination memorandum referenced
6
On appeal, Juarez asserts that the special verdict questions were based on the
termination memorandum and Yoshimi’s August 8, 2011 email summarizing her
investigation. The August 8 email is summarized in the Factual and Procedural
Background, above; it makes no assessments of Juarez’s truthfulness or cooperation.
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the obligation of employees to “cooperate fully” and to “answer questions . . .
completely,” the memorandum did not accuse Juarez of failing to have done so. And, as
we have said, Juarez has not identified any other evidence to support the conclusion that
Yoshimi or any other Dish employee told Juarez that he did not cooperate fully or answer
questions completely.
We note in conclusion that if defamation cases like the present one are allowed to
proceed, they create a real potential to stifle communication in the workplace.
“Defamation litigation is costly. The expenditure of time, resources, and money required
to defend a [defamation claim] inevitably will induce self-censorship by employers.
[Citation.] The consequent harm to employees will be significant. Performance
evaluations, which often inform discharge decisions, are a standard feature of modern
management practices, and widely are endorsed as valuable to employees and employers
alike. [Citation.] Beneath a dangling sword of defamation, employers are unlikely to
provide employees with any reasons for employment decisions, including discharge,
depriving employees of any opportunity to contest those decisions. [Citation.] There is
surely nothing more harmful to a discharged employee who must tell a prospective
employer, ‘I don’t know why I was fired. I was never given a reason.’ ” (White v. Blue
Cross and Blue Shield of Massachusetts, Inc. (2004) 442 Mass. 64, 70 [809 N.E.2d 1034,
1038]; see also Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd. (2002) 100 Haw. 149,
172 [58 P.3d 1196, 1219] [“ ‘The potential for defamation liability every time an
employee is terminated would chill communications in the work place, preventing
employers from disclosing reasons for their business decisions, and would negatively
affect grievance procedures intended to benefit the discharged employee.’ ”]; Sullivan v.
Baptist Memorial Hosp. (Tenn. 1999) 995 S.W.2d 569, 573 [“the potential for
defamation liability every time an employee is terminated would chill communications in
the work place.”]; Rice v. Nova Biomedical Corp. (7th Cir. 1994) 38 F.3d 909, 912
[expanding defamation claims in employment context “makes it impossible for an
employer to communicate his grounds for discharging an employee to the employee even
confidentially without incurring a grave risk of being sued for defamation.”].)
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DISPOSITION
The judgment is reversed with directions to the trial court to enter judgment for
Dish. Dish is awarded its appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
ALDRICH, J.
JONES, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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