Stafford v. Avenal Community Health Center CA5 ( 2021 )

Filed 1/29/21 Stafford v. Avenal Community Health Center CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
VIVI R. STAFFORD,
F078826
Plaintiff and Appellant,
(Super. Ct. No. 17CECG03822)
v.
AVENAL COMMUNITY HEALTH CENTER, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Fresno County. Kimberly A.
Gaab, Judge.
Vivi R. Stafford, in pro. per, for Plaintiff and Appellant.
Kahn, Soares & Conway and Rissa A. Stuart for Defendant and Respondent.
-ooOoo-
Plaintiff sued her former employer for racial discrimination, harassment based on
race, retaliation, and related causes of action. Defendant moved for summary judgment,
asserting that some element of each cause of action could not be established. Plaintiff,
acting in propria persona, filed opposition, but the trial court sustained objections to all of
the evidence she proffered. The trial court granted summary judgment, finding defendant
met its burden of demonstrating that each cause of action was without merit and plaintiff
failed to raise any triable issues of material fact. Plaintiff appeals from the judgment.
We conclude the trial court correctly determined plaintiff’s action lacks merit and
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Vivi R. Stafford sued defendant Avenal Community Health Center, her
former employer, alleging thirteen causes of action: (1) whistleblowing; (2) racial
discrimination; (3) workplace violence; (4) failure to prevent harassment, discrimination,
or retaliation; (5) wrongful termination in violation of public policy; (6) unlawful and
unfair business practices; (7) breach of contract; (8) libel; (9) slander; (10) intentional
misrepresentation; (11) harassment on the basis of race; (12) retaliation; and
(13) conspiracy. She alleged she was hired by defendant to work as a physician in its
clinics. She expressed concerns about defendant’s non-physician chief executive officer
(CEO) becoming involved in medical decisions and in creating a peer review process;
when nothing was done, she complained to the Medical Board of California and
defendant retaliated against her. Other employees made derogatory comments and sent a
vulgar text message that plaintiff found offensive. On one occasion, an employee yelled
at plaintiff and threw a pen at her. Because of plaintiff’s expressed concerns or
complaints, she was excluded from participating in events at a company retreat and was
denied the privilege of working with patients.
Plaintiff also alleged defendant breached its contractual obligations to her by not
allowing her all of her vacation time, placing her on call, and not paying her overtime
compensation. On May 31, 2017, plaintiff gave 30 days’ notice of her resignation after
defendant failed to prevent harassment. Defendant allegedly then terminated plaintiff’s
employment in breach of her employment contract and in violation of public policy.
Defendant moved for summary judgment, asserting each cause of action of
plaintiff’s complaint was lacking some essential element. Plaintiff, acting in propria
persona, opposed the motion. In reply, defendant filed objections to plaintiff’s
declarations and the attached exhibits, and also to the evidence plaintiff proffered along
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with a request for judicial notice.1 The trial court sustained defendant’s objections,
finding the exhibits submitted with plaintiff’s request for judicial notice were not
authenticated and were not proper subjects of judicial notice. Further, plaintiff’s
declarations were not made under penalty of perjury under the laws of the State of
California, were not understandable, and were of no value to the court in evaluating the
merits of the motion.
The trial court concluded defendant demonstrated that at least one element of each
cause of action could not be established, and plaintiff had not submitted any admissible
evidence to raise a triable issue of material fact. Accordingly, it granted defendant’s
motion for summary judgment and entered judgment in defendant’s favor. Plaintiff
appeals.
DISCUSSION
I. Review of Summary Judgment
Summary judgment is properly granted when no triable issue exists as to any
material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).)2 In moving for summary judgment, 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 … cannot be established, or that there is a
complete defense to the cause of action.” (§ 437c, subd. (p)(2).) If the defendant does
not meet that burden, the motion must be denied, even if the plaintiff has not opposed it
adequately or at all. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742–743.) Once the
1 We note that the record contains plaintiff’s separate statement of undisputed material
facts with a one-page purported declaration attached and her request for judicial notice, which
has a one-page purported declaration and 38 exhibits attached. Plaintiff’s memorandum of
points and authorities in opposition, her 24-page declaration, and 20 exhibits, which are
referenced in defendant’s written objections, are not included in the record.
2 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
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moving defendant has met its initial burden, however, “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.” (§ 437c, subd. (p)(2).) The plaintiff must present facts,
supported by admissible evidence, raising a triable issue of material fact. (Id.,
subds. (b)(2), (b)(3), (p)(2); Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476–477
(Merrill); see Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.)
“Summary judgments are reviewed de novo.” (Johnson v. City of Loma Linda
(2000) 24 Cal.4th 61, 67–68.) In our review, “we apply the same three-step analysis
required of the trial court: We first identify the issues framed by the pleadings, since it is
these allegations to which the motion must respond. Secondly, we determine whether the
moving party has established facts which negate the opponents’ claim and justify a
judgment in the movant’s favor. Finally, if the summary judgment motion prima facie
justifies a judgment, we determine whether the opposition demonstrates the existence of a
triable, material factual issue.” (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.) On
appeal, we consider “all of the evidence the parties offered in connection with the motion
(except that which the court properly excluded) and the uncontradicted inferences the
evidence reasonably supports.” (Merrill, supra, 26 Cal.4th at p. 476.)
Although our review of the grant of summary judgment is de novo, the appellant
bears the burden of showing error, even if the appellant did not bear the burden in the
trial court. (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368,
379.) The appellant must affirmatively demonstrate error and point out the triable issues
the appellant claims are present by citation to the record and any supporting authority.
Our review is limited to issues that have been adequately raised and briefed. (Ibid.) The
appellant is also responsible for providing the appellate court with a record adequate to
address the issues raised on appeal and demonstrate prejudicial error. (Ballard v. Uribe
(1986) 41 Cal.3d 564, 574; Gee v. American Realty & Construction, Inc. (2002)
99 Cal.App.4th 1412, 1416.)
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II. Bias of Judge
Initially, we reject plaintiff’s random assertions that the trial court judge was
prejudiced or biased against her. In an appellate brief, a party must “[s]tate each point
under a separate heading or subheading summarizing the point, and support each point by
argument and, if possible, by citation of authority.” (Cal. Rules of Court,
rule 8.204(a)(1)(B).) Plaintiff’s opening brief asserts in several places that the trial
judge’s rulings and actions may have been the result of bias, but she has made no
organized argument, under a separate heading, supported by legal authority and citations
to the record, to that effect. She also has not challenged the trial court’s ruling denying
her motion to disqualify the trial court judge.3 We decline to address plaintiff’s
disorganized and unsupported assertions of bias.
III. Evidentiary Rulings
Defendant objected to all 38 of the exhibits accompanying plaintiff’s request for
judicial notice on several grounds: the request was not served on defendant, the exhibits
were not appropriate for judicial notice, the exhibits were not authenticated, and the
exhibits constituted inadmissible hearsay. The trial court sustained defendant’s
objections on the grounds the exhibits submitted with the request for judicial notice were
not authenticated in any way and were not proper subjects of judicial notice.
Defendant also objected to plaintiff’s declarations and the 20 exhibits
accompanying her opposition papers. It argued the declarations failed to establish
personal knowledge of the matters asserted. Further, defendant objected to each of the
exhibits on the grounds they were not authenticated and failed to present deposition
testimony in the proper format. The trial court sustained the objections to the
declarations and exhibits. It found the declarations did not comply with section 2015.5,
which requires that a declaration indicate it was executed in the State of California or be
3 The motion was assigned to and decided by a different judge than the one challenged.
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made under penalty of perjury under the laws of the State of California. A declaration
that does not comply with section 2015.5 is of no evidentiary value. (Kulshrestha v. First
Union Commercial Corp. (2004) 33 Cal.4th 601, 605–606, 618; ViaView, Inc. v. Retzlaff
(2016) 1 Cal.App.5th 198, 217.) The defective declarations could not be used to
authenticate or explain the exhibits accompanying the opposition.
In this appeal, plaintiff has not challenged the propriety of the trial court’s rulings
on defendant’s objections. She also has not provided a record that includes all of the
declarations and exhibits she proffered with her opposition. In our review, we may
consider the evidence presented in the trial court, except evidence the trial court properly
excluded. (Merrill, supra, 26 Cal.4th at p. 476.) Where the appellant does not challenge
the propriety of the exclusion of evidence, that issue is deemed forfeited. (Lopez v. Baca
(2002) 98 Cal.App.4th 1008, 1014–1015.) Thus, we consider the evidence submitted by
plaintiff to have been properly excluded and we will disregard it.
When a defendant files a motion for summary judgment, the defendant must
demonstrate that the plaintiff’s claims have no merit. If the defendant fails to do so, the
motion must be denied, even if the plaintiff has not opposed it. (Villa v. McFerren,
supra, 35 Cal.App.4th at pp. 742–743.) Thus, although the trial court excluded all of the
evidence submitted by plaintiff in opposition to the motion, to determine whether
summary judgment was properly granted, we must determine whether defendant met its
burden of demonstrating each cause of action of the complaint had no merit.
IV. Right-to-sue Letter
Plaintiff asserts she obtained a right-to-sue letter from the Equal Employment
Opportunity Commission (EEOC), and her right to sue cannot be extinguished through
summary judgment. Plaintiff misapprehends the purpose and effect of a right-to-sue
letter. The EEOC has a duty to issue a right-to-sue letter when it dismisses the
employee’s administrative charge, or when it fails to file a civil action or enter a
conciliation agreement within 180 days after the filing of the charge. (Scott v. Gino
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Morena Enterprises, LLC (9th Cir. 2018) 888 F.3d 1101, 1107.) “ ‘To protect aggrieved
individuals from undue delay, the EEOC must issue a right-to-sue letter upon the
potential plaintiff’s request anytime after 180 days after the charges were filed.’ ” (Id. at
p. 1108.) The letter represents notice that the potential plaintiff has exhausted the
administrative remedy and marks the commencement of the 90-day period within which a
civil action is required to be filed. (Ibid.) The right-to-sue letter says nothing about the
validity of the potential plaintiff’s claims and does not dictate any outcome or control any
proceedings in the civil action. Consequently, the EEOC’s issuance of a right-to-sue
letter does not prevent the trial court from entering summary judgment against the
plaintiff in the subsequent civil action.
V. Discrimination Based on Race (Second Cause of Action)
Plaintiff’s second cause of action alleges defendant discriminated against her
based on her race in violation of the Fair Employment and Housing Act (FEHA; Gov.
Code, § 12900 et seq.). The FEHA makes it an unlawful practice “[f]or an employer,
because of the race … of any person, … to discriminate against the person in
compensation or in terms, conditions, or privileges of employment.” (Gov. Code,
§ 12940, subd. (a).) Discrimination under the FEHA must be distinguished from
harassment under that act. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 705–706
(Roby).) Discrimination and harassment are addressed in separate subdivisions of
Government Code section 12940. (Roby, at pp. 705–706.) “[T]he FEHA’s
discrimination provision addresses only explicit changes in the ‘terms, conditions, or
privileges of employment’ [citation]; that is, changes involving some official action taken
by the employer. [Citation.] In the case of an institutional or corporate employer, the
institution or corporation itself must have taken some official action with respect to the
employee, such as hiring, firing, failing to promote, adverse job assignment, significant
change in compensation or benefits, or official disciplinary action.” (Id. at p. 706.)
Harassment, in contrast, does not necessarily involve any official exercise of delegated
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power on behalf of the employer; it “focuses on situations in which the social
environment of the workplace becomes intolerable because the harassment (whether
verbal, physical, or visual) communicates an offensive message to the harassed
employee.” (Ibid.)
The elements of a cause of action for discrimination are: “(1) [the plaintiff] was a
member of a protected class, (2) [s]he was qualified for the position [s]he sought or was
performing competently in the position [s]he held, (3) [s]he suffered an adverse
employment action, such as termination, demotion, or denial of an available job, and (4)
some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 355.) Defendant challenged the second cause of action as lacking
an adverse employment action.
Plaintiff identifies herself as African-American. Her second cause of action was
based on allegations of offensive and derogatory statements her coworkers, Christina and
Betty, made in plaintiff’s presence, on a derogatory text message in an exchange of texts
among a group of employees on March 8, 2017, and on a threat by defendant of “serious
ramifications” if plaintiff reported these racial comments.
The complaint alleged Christina walked up to plaintiff and referred to herself as
half white and half black; Christina thought it was funny, but plaintiff was offended.
Defendant presented plaintiff’s deposition testimony that some medical assistants were
having a conversation, which plaintiff was not part of. Christina said she was half white
and half black and mixed race. The conversation made plaintiff uncomfortable, but she
did not report it to anyone.
The complaint alleged that Betty, a medical assistant, approached plaintiff and
asked why she did not wear a wig, like another African-American employee did; the
comment made plaintiff uncomfortable. Plaintiff testified in deposition that, months
later, Betty commented on the salt plaintiff put on her food, mentioning demographics
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and high blood pressure. Plaintiff then spoke to Betty about the wig comment and Betty
apologized sincerely. Betty made no further comments plaintiff considered racial.
The complaint alleged plaintiff was referred to in a derogatory manner in text
messages exchanged among employees on March 8, 2017. Plaintiff’s deposition
testimony indicated that, on that date, the employees in plaintiff’s care team were
planning a potluck and texting about it. Plaintiff stated they were “really sort of excited”
and were discussing the dishes they would bring. In a text to a group that included
plaintiff, one employee stated that she was “taking homemade arroz con leche (rice
pudding) tomorrow for breakfast or dessert or both.” Another employee, identified by
defendant as Christina, responded, “Maaaaa nigga!!!!” followed by two raising hands
emojis. Others texted back: “Yum. Thanks my favorite”; “Lol lol,” followed by six
hugging face emojis; and an OK hand emoji. Plaintiff was shocked and upset by the
racial epithet in the text and believed it was directed at her.
The second cause of action also alleged that, after plaintiff informed defendant of
the offensive text message, defendant told her that, if she reported the racial statements,
there would be serious ramifications. Defendant allegedly failed to act on her
information.
None of the alleged conduct constituted the type of adverse employment action
necessary for a cause of action for racial discrimination. None reflected an official action
taken by the employer, such as firing, failing to promote, giving an adverse job
assignment, making a significant change in compensation or benefits, or imposing
official disciplinary action. (See Roby, supra, 47 Cal.4th at p. 706.) The acts appear to
present a situation involving the social environment of the workplace, more appropriately
addressed in a FEHA harassment cause of action.
Plaintiff’s second cause of action also mentioned defendant’s peer review process,
although the allegations appear more concerned with how and by whom the process was
created, than the manner in which the process was applied to plaintiff. Plaintiff did not
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allege, for example, that defendant intentionally discriminated against her in
administering the peer review process or that she was treated less favorably by
defendant’s peer review process than similar employees who were not African-American.
Even if the second cause of action could be interpreted to allege defendant’s peer
review process was applied to plaintiff in a discriminatory manner, defendant presented
evidence that it was required by law to maintain a peer review system, that all service
providers employed by defendant were required to participate in it, and that plaintiff
received the highest score possible in the majority of categories. Plaintiff’s peer review
indicated three narrow areas in which plaintiff needed improvement, and she
subsequently took steps to improve in those areas. Being subject to the peer review
process was not, in itself, an adverse employment action, when all similarly situated
employees were required to participate in it and when no personnel actions, such as
discipline, demotion, or discharge resulted from it. (See Stroy v. Gibson (5th Cir. 2018)
896 F.3d 693, 699.)
We conclude the trial court correctly determined defendant demonstrated that
plaintiff could not establish the element of an adverse employment action, and therefore
could not establish her second cause of action for racial discrimination.
VI. Whistleblowing and Retaliation (First, Third, & Twelfth Causes of Action)
Plaintiff’s first cause of action alleged defendant violated Labor Code
section 1102.5 by retaliating against her for disclosing information to the Medical Board
of California. Her twelfth cause of action duplicates the first cause of action, also
alleging retaliation in violation of Labor Code section 1102.5. Plaintiff’s third cause of
action alleges retaliation for opposing discriminatory practices, in violation of the FEHA4
(Gov. Code, § 12940, subd. (h)).
4 The caption of the complaint lists the third cause of action as one for “workplace
violence.” (Capitalization omitted.) The third cause of action itself is headed “hostile work
environment harassment.” (Capitalization omitted.) The substantive allegations, however, assert
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Labor Code section 1102.5, subdivision (b) provides in pertinent part: “An
employer, or any person acting on behalf of the employer, shall not retaliate against an
employee for disclosing information … to a government or law enforcement agency … if
the employee has reasonable cause to believe that the information discloses a violation of
state or federal statute, or a violation of or noncompliance with a local, state, or federal
rule or regulation, regardless of whether disclosing the information is part of the
employee’s job duties.” (Lab. Code, § 1102.5, subd. (b).) To establish a prima facie case
of retaliation under this statute, “a plaintiff must show (1) she engaged in a protected
activity, (2) her employer subjected her to an adverse employment action, and (3) there is
a causal link between the two.” (Patten v. Grant Joint Union High School Dist. (2005)
134 Cal.App.4th 1378, 1384.)
Government Code section 12940, subdivision (h) makes it an unlawful
employment practice “[f]or an employer … to discharge, expel, or otherwise discriminate
against any person because the person has opposed any practices forbidden under [the
FEHA] or because the person has filed a complaint, testified, or assisted in any
proceeding under [the FEHA].” (Gov. Code, § 12940, subd. (h).) Under this statute,
“[e]mployees may establish a prima facie case of unlawful retaliation by showing that
(1) they engaged in activities protected by the FEHA, (2) their employers subsequently
took adverse employment action against them, and (3) there was a causal connection
between the protected activity and the adverse employment action.” (Miller v.
Department of Corrections (2005) 36 Cal.4th 446, 472 (Miller).)
The same standard of “adverse employment action” applies in both retaliation
claims under the FEHA and retaliation claims under Labor Code section 1102.5. (Patten
v. Grant Joint Union High School Dist., supra, 134 Cal.App.4th at p. 1381.) That
a violation of Government Code section 12940, subdivision (h), which prohibits retaliation for
opposing discrimination or for filing a complaint about it.
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standard requires some official action by the employer, such as discharge, failure to
promote, demotion, or a change in compensation or benefits. (Roby, supra, 47 Cal.4th at
p. 706; Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721,
734.) An adverse employment action must be an action that materially affects the terms,
conditions, or privileges of employment. (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1051.) In its motion for summary judgment, defendant contended, and
the trial court found, that the evidence indicated plaintiff did not suffer any adverse
employment action.
Plaintiff’s first and twelfth causes of action alleged she expressed concerns to the
CEO about his involvement in the peer review process and in medical decisions; because
her concerns were not addressed, on May 22, 2017, she sent a letter outlining her
concerns to the Medical Board of California. Plaintiff alleged she was punished for
expressing her concerns by being assigned to the Fresno clinic in October 2016 and by
being asked to attend a company retreat April 29 and 30, 2017, where she was excluded
from the activities. The first and twelfth causes of action also alleged plaintiff was
punished on May 25, 2017, when she was stripped of the privilege of working with
patients in the clinic.
Logically, plaintiff could not have been assigned to the Fresno clinic in October
2016 in retaliation for a complaint to the Medical Board of California that plaintiff did
not make until May 22, 2017. Likewise, she could not have been excluded from
activities during a retreat held April 29 and 30, 2017, in retaliation for a complaint made
on May 22, 2017. Further, defendant presented uncontradicted evidence that plaintiff and
her fiancé participated in all but one of the events at the retreat. Defendant also presented
evidence that plaintiff was not stripped of the privilege of working with patients on May
25, 2017, but in fact worked with a number of patients each workday through May 31,
2017. On May 31, 2017, plaintiff submitted her letter of resignation to defendant, giving
notice that she would resign in 30 days. Defendant accepted her resignation, excused her
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from working the final 30 days, and paid her salary and unused vacation time through
June 30, 2017. Thus, defendant demonstrated plaintiff could not establish any adverse
employment action was taken against her in retaliation for her complaint to the Medical
Board of California.
Plaintiff’s third cause of action alleged she engaged in the protected activity of
complaining about harassment and discrimination she experienced. She was subjected to
harassing conduct in retaliation for her complaint; in February 2017, the computer
software manager, Jennifer, yelled at plaintiff and threw a pen at her for expressing
software concerns. The pen incident occurred when plaintiff told Jennifer someone was
tampering with plaintiff’s software. The third cause of action does not allege that
Jennifer was aware of plaintiff’s complaints of harassment and discrimination, or that
Jennifer’s action in yelling at plaintiff and throwing a pen at her was taken in retaliation
for plaintiff’s complaints of harassment and discrimination rather than in response to
plaintiff’s assertion that someone was tampering with her computer. In any event, yelling
and throwing a pen at plaintiff did not constitute an adverse employment action that
materially affected the terms, conditions, or privileges of her employment.
The trial court correctly determined defendant demonstrated there was no merit to
plaintiff’s first, third, and twelfth causes of action, because plaintiff could not establish
any adverse employment action was taken against her.
VII. Harassment on the Basis of Race (Eleventh Cause of Action)
Plaintiff’s eleventh cause of action alleged that she was harassed during her
employment with defendant based on her race, in violation of the FEHA. The FEHA
makes it an unlawful employment practice “[f]or an employer … or any other person,
because of race … to harass an employee .… Harassment of an employee … by an
employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents
or supervisors, knows or should have known of this conduct and fails to take immediate
and appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(1).) To prevail on a
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cause of action for harassment under the FEHA, a plaintiff must prove that plaintiff was
subjected to harassment such as epithets, derogatory comments, slurs, physical
harassment, or other abusive conduct; the harassment was based on a protected
characteristic, such as race; and the harassing conduct was sufficiently severe or
pervasive to alter the conditions of the plaintiff’s employment and create a hostile or
abusive work environment. (Miller, supra, 36 Cal.4th at pp. 461, 462.) In its motion for
summary judgment, defendant asserted plaintiff could not establish that the alleged
harassment was sufficiently severe or pervasive to create a hostile or abusive work
environment.
The eleventh cause of action alleged “multiple offensive and derogatory
statements” made by Christina and Betty in plaintiff’s presence. The statements included
Christina’s comment about being half white and half black, Betty’s question about why
plaintiff did not wear a wig, and the potluck text message. Plaintiff also alleged that,
after she informed defendant of the racial comments, defendant told her to deal with them
and told her if she reported the racial statements, there would be serious ramifications.
The eleventh cause of action incorporated the allegations that Jennifer yelled at plaintiff
and threw a pen at her. Plaintiff contends the pen incident is further evidence of
harassment on the basis of race, and “[a] single instance of assault is severe or
pervasive.”
Plaintiff contracted to work for defendant on July 22, 2016; she began her work
with defendant on September 2, 2016. Christina’s comment referring to herself as half
white and half black occurred in September 2016. Betty’s question about why plaintiff
did not wear a wig occurred in December 2016. Several months later, after the March 8,
2017 text message incident, Betty commented on plaintiff’s salt usage. Jennifer threw a
pen at plaintiff in February 2017. Thus, plaintiff’s harassment claim is based on a small
number of incidents that occurred sporadically over a nine-month period.
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The offensive text message that used the term “nigga” was shared among a group
of employees planning a potluck. Although plaintiff stated in her deposition that she felt
the term referred to her, because she was the only African-American in the texting group,
in context, it does not appear to be directed at her. Viewed in the context of the exchange
of texts, the term would appear to a reasonable person in plaintiff’s position to be a
response expressing approval to the person proposing to bring arroz con leche to the
potluck.
Plaintiff criticizes the trial court by repeatedly asserting it suggested the term
“nigga” could be “doled out as a badge of honor” or used as a term “of great honor
amongst African Americans.” The trial court did not make such a statement. It quoted
from a Court of Appeal opinion discussing modern use of the words “nigger” and “nigga”
as follows:
“Nigger, however, is not the term at issue here. Rather, the term at issue is
nigga. As [the plaintiff] makes clear in his declaration opposing the
motion, he was not called nigger by Wayans, but nigga. Nigga is not an
unambiguous racial epithet in today’s world, especially when used
intraracially, as it was here. In fact, one noted legal scholar, Harvard Law
professor, Randall Kennedy has observed that ‘ “[today,] when African
Americans are speaking to each other, ‘nigger,’ and especially its more
genial cousin, ‘nigga’ can be an affectionate greeting, a compliment, or a
term of respect.” ’ (Perdu and Parks, The Nth Decree: Examining
Intraracial use of the N-word in Employment Discrimination Cases (2014)
64 DePaul L.Rev. 65, 67; see Kennedy, Nigger: The Strange Career of a
Troublesome Word (2002) p. 5 [“Currently, some people insist upon
distinguishing nigger—which they see as exclusively an insult—from
nigga, which they view as a term capable of signaling a friendly
salutation.”]) [¶] (Daniel v. Wayans [2017] 8 Cal.App.5th [367,] 390–391,
fn. omitted[, review granted May 10, 2017, S240704].)”5
5 At the time the trial court rendered its decision, the Supreme Court had granted review of
the Daniel case and review was pending. On September 25, 2019, the cause was transferred to
Court of Appeal, Second Appellate District, Division One, with directions. Opinion was filed
January 31, 2020, not for publication.
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The trial court concluded that, “[i]n Daniel, the word ‘nigga’ was used and
received by others not as a racial slur, but a term of endearment.” The trial court did not
refer to the term “nigga” as one of great honor.
Plaintiff appears to argue that the term “nigga” is always a racial epithet and is so
derogatory that a single use of the term is sufficient to constitute actionable harassment.
She cites no legal authority for that proposition, and we have found no support for it.
One dictionary definition of “nigga” indicates the term is usually disparaging and
offensive but not invariably so:
“USAGE ALERT ABOUT NIGGA
“Nigga is used mainly among African Americans, but also among other
minorities and ethnicities, in a neutral or familiar way and as a friendly
term of address. It is also common in rap music. However, nigga is taken
to be extremely offensive when used by outsiders. Many people consider
this word to be equally as offensive as nigger. The words nigger and nigga
are pronounced alike in certain dialects, and so it has been claimed that they
are one and the same word.
“noun Slang: Usually Disparaging and Offensive
“1 a term used to refer to or address a Black person.” (Dictionary.com,
LLC Online (2021) [as of
Jan. 29, 2021].)
Under the FEHA, “an employee generally cannot recover for harassment that is
occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted
pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 283.) “The law prohibiting
harassment is violated ‘[w]hen the workplace is permeated with discriminatory
intimidation, ridicule and insult that is “ ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’ ” ’ ”
(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263.) Thus, a single isolated
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instance of the use of an offensive term is not sufficient to be actionable as harassment
under the FEHA.
In determining whether the harassment was sufficiently severe or pervasive to
alter the conditions of the plaintiff’s employment and create a hostile or abusive work
environment, the work environment “must be evaluated in light of the totality of the
circumstances .… ‘These may include the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.’ ” (Miller, supra, 36 Cal.4th at p. 462.) Conduct must be extreme to
amount to a change in the terms and conditions of employment. (Aguilar v. Avis Rent A
Car System, Inc. (1999) 21 Cal.4th 121, 130.) As our Supreme Court has observed:
“ ‘Common sense, and an appropriate sensibility to social context, will enable courts and
juries to distinguish between simple teasing or roughhousing … and conduct which a
reasonable person in the plaintiff’s position would find severely hostile or abusive.’ ”
(Miller, at p. 462.)
Although the use of the term “nigga” was definitely offensive and inappropriate in
a workplace communication, it was not sufficiently severe alone to alter the conditions of
plaintiff’s employment and create an abusive working environment. The question here is
whether all of the allegedly harassing conduct, collectively, was sufficiently severe or
pervasive to alter the conditions of the plaintiff’s employment and create a hostile or
abusive work environment. Plaintiff complains of a few occurrences, involving different
individuals, spread out over a nine-month period.
The evidence indicated Christina’s comment about being half white and half black
was not made to or about plaintiff. Plaintiff simply overheard a conversation among the
medical assistants in which Christina discussed being half white and half black. Plaintiff
did not like the conversation; it made her really uncomfortable.
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Betty asked plaintiff why she did not wear a wig, like another African-American
employee; plaintiff did not like the comment. Months later, Betty commented on the salt
plaintiff put on her food, mentioning demographics and high blood pressure. After
plaintiff told Betty the wig comment made her uncomfortable, Betty apologized and
made no further comments plaintiff considered racial.
The term “nigga” was used on one occasion in a group text that plaintiff received.
Viewed in context, the term was not directed at plaintiff and was used to express approval
of a proposed potluck dish.
The trial court noted plaintiff claimed in her opposition “that the text message also
included an ‘OK’ symbol, which is the sign for ‘White Power.’ ” It stated it was unaware
of such a meaning for that symbol, and plaintiff had not provided any evidence that the
symbol had that meaning. The trial court stated it appeared “from the text message that it
was a simple ‘okay.’ ” We agree with the trial court that, in the context of the exchange
of text messages about having arroz con leche at the potluck, the symbol reasonably
appears to mean “okay.” Plaintiff has not pointed us to any evidence in the record that
would support some other meaning.
Plaintiff alleged she informed defendant of these racial comments and defendant
told her to deal with them; on May 22, 2017, defendant allegedly said that, if plaintiff
reported the racial statements, there would be serious ramifications. This vague
statement does not indicate what sort of report or what sort of ramifications it
contemplates; plaintiff’s allegation does not indicate who made the statement.
Defendant presented evidence that plaintiff reported the March 8, 2017 text to
defendant’s administration on May 19, 2017, and she had not previously reported any
perceived racial comments to defendant. Defendant immediately investigated, learned
who made the statement in the text message and the circumstances under which it was
made, then retrained and re-educated the staff regarding inappropriate workplace
behavior. On May 25, 2017, defendant delivered a letter to plaintiff confirming the
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action taken. The confirming letter, written by defendant’s CEO, denied anyone told
plaintiff to keep her complaints to herself and asserted defendant had a zero-tolerance
policy for harassment and discrimination. It stated defendant had immediately
investigated the derogatory text, spoken to personnel, re-educated employees, and
reviewed defendant’s policy against harassment and discrimination with the staff. The
letter also asserted plaintiff’s “current assertions of threats or threatened ramifications”
resulting from her complaints were untrue.
Finally, plaintiff argues that Jennifer throwing a pen at her constituted assault, and
a single instance of assault is severe or pervasive. We do not believe that a single
instance of an employee throwing a pen at a coworker, who was not her subordinate,
particularly when there is no allegation that the pen caused injury or even struck the
coworker, constitutes harassment severe enough to alter the conditions of the coworker’s
employment and create a hostile or abusive work environment. (See Miller, supra,36 Cal.4th at p. 462.)
Additionally, harassment under the FEHA is actionable only if it occurs because
of race or some other protected characteristic of the plaintiff. (Gov. Code, § 12940,
subd. (j)(1).) The complaint did not allege any facts suggesting that Jennifer threw the
pen at plaintiff because of her race. Rather, it alleged Jennifer threw the pen at plaintiff
for expressing software concerns after plaintiff told Jennifer someone was tampering with
plaintiff’s software.
Viewed individually or collectively, these minor, occasional incidents do not
demonstrate a “concerted pattern of harassment of a repeated, routine, or a generalized
nature” (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at p. 283) that
is sufficiently severe or pervasive to alter the conditions of plaintiff’s employment and
create a hostile or abusive work environment (Miller, supra, 36 Cal.4th at p. 462). The
incidents were few in number and spread over a nine-month period. They involved
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several different individuals, not the same individual repeatedly or routinely bothering
plaintiff. They did not involve a supervisor victimizing a subordinate.
Consequently, we conclude the trial court correctly determined defendant met its
burden of demonstrating the harassment cause of action had no merit, and plaintiff failed
to raise a triable issue of material fact, entitling defendant to summary adjudication of
this cause of action.
VIII. Failure to Prevent Harassment, Discrimination, and Retaliation (Fourth
Cause of Action)
Under the FEHA, it is an unlawful employment practice “[f]or an employer … to
fail to take all reasonable steps necessary to prevent discrimination and harassment from
occurring.” (Gov. Code, § 12940, subd. (k).) The fourth cause of action alleges plaintiff
informed defendant of the allegedly racially harassing comments, and defendant failed to
act on her information. Plaintiff asserts the trial court ignored this cause of action. It did
not.
A plaintiff cannot recover for failure to take steps to prevent discrimination or
harassment unless actionable discrimination or harassment actually occurred. (Dickson v.
Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314; Trujillo v. North County
Transit Dist. (1998) 63 Cal.App.4th 280, 289.) “ ‘[T]here’s no logic that says an
employee who has not been discriminated against can sue an employer for not preventing
discrimination that didn’t happen, for not having a policy to prevent discrimination when
no discrimination occurred .…’ Employers should not be held liable to employees for
failure to take necessary steps to prevent such conduct, except where the actions took
place and were not prevented.” (Trujillo, at p. 289.) Defendant met its burden of
demonstrating that plaintiff’s causes of action for harassment, discrimination, and
retaliation were without merit, and plaintiff raised no triable issues of material fact.
Consequently, plaintiff also could not establish a cause of action for failure to prevent
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harassment, discrimination, or retaliation. The trial court correctly reached this
conclusion, as we do.
IX. Wrongful Termination in Violation of Public Policy (Fifth Cause of Action)
The fifth cause of action is for wrongful termination in violation of public policy.
“ ‘The elements of a claim for wrongful discharge in violation of public policy are (1) an
employer-employee relationship, (2) the employer terminated the plaintiff’s employment,
(3) the termination was substantially motivated by a violation of public policy, and (4)
the discharge caused the plaintiff harm.’ ” (Nosal-Tabor v. Sharp Chula Vista Medical
Center (2015) 239 Cal.App.4th 1224, 1234–1235.) “[A] policy may support a wrongful
discharge claim only if it satisfies four requirements. The policy must be (1) delineated
in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to
the benefit of the public’ rather than serving merely the interests of the individual;
(3) well established at the time of the discharge; and (4) ‘substantial’ and
‘fundamental.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 901–902.)
The fifth cause of action alleges plaintiff gave defendant 30 days’ notice of her
resignation after defendant failed to prevent harassment, and defendant proceeded to
terminate plaintiff. It alleges this violated Government Code section 12940,
subdivision (h), which prohibits retaliation.
Defendant demonstrated that plaintiff resigned from her position with defendant.
Plaintiff argues that the complaint alleges she resigned after defendant failed to prevent
harassment. She contends her employment was constructively terminated by defendant.
“Constructive discharge occurs when the employer’s conduct effectively forces an
employee to resign. Although the employee may say, ‘I quit,’ the employment
relationship is actually severed involuntarily by the employer’s acts, against the
employee’s will. As a result, a constructive discharge is legally regarded as a firing
rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244–
1245 (Turner).)
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“In order to establish a constructive discharge, an employee must plead and prove
… that the employer either intentionally created or knowingly permitted working
conditions that were so intolerable or aggravated at the time of the employee’s
resignation that a reasonable employer would realize that a reasonable person in the
employee’s position would be compelled to resign.” (Turner, supra, 7 Cal.4th at
p. 1251.) “An actual or constructive discharge in violation of fundamental public policy
gives rise to a tort action in favor of the terminated employee.” (Id. at p. 1252.)
The harassing and retaliatory conduct plaintiff alleged does not meet the standard
of working conditions so intolerable or aggravated that a reasonable employer would
realize a reasonable person in plaintiff’s position would be compelled to resign. The
comments and incidents alleged were minor and sporadic rather than continuous,
repeated, or routine. “In order to amount to a constructive discharge, adverse working
conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the
situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts of
[misconduct] are insufficient’ to support a constructive discharge claim.” (Turner, supra,
7 Cal.4th at p. 1247.)
We conclude the trial court did not err in summarily adjudicating the fifth cause of
action because defendant demonstrated plaintiff could not establish the second element—
that defendant actually or constructively terminated plaintiff’s employment.
X. Breach of Contract (Seventh Cause of Action)
Plaintiff’s seventh cause of action alleges breach of her employment contract. “A
cause of action for breach of contract requires proof of the following elements:
(1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance;
(3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” (CDF
Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.)
Plaintiff alleges defendant breached the contract by allowing her only eight hours
of vacation for the year, when the contract provided for 80 hours, earned progressively
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throughout the year; by placing her “on-call all time [sic] on or around November 2016”;
by requiring plaintiff to consistently exceed 40 hours in a work week; and by discharging
her after she gave 30 days’ notice of resignation.
Regarding vacation time, defendant presented evidence that plaintiff’s contract
provided for 80 hours of paid leave earned progressively during the year; plaintiff
accrued 70.84 hours of vacation during her nine months of employment; she used
56 hours of vacation time; and she was paid for an additional 14.84 hours upon her
resignation. There was no contrary admissible evidence.
Regarding on-call services, the contract provided that plaintiff’s on-call schedule
would be designed to meet her needs and “be consistent with the call systems in place
within the local medical community.” Defendant presented evidence that plaintiff was
never given primary on-call duty and the level of on-call duty she was assigned was
lower than that normally assigned to medical service providers in the local community.
Regarding the allegation plaintiff was required to consistently exceed 40 work
hours per week, the contract required her to provide medical services as a salaried full-
time employee for a minimum of 40 hours of clinical time per week. Thus, requiring
more than 40 work hours per week was not a breach of the contract.
Regarding the allegation defendant terminated plaintiff’s employment, the
evidence indicated plaintiff gave 30 days’ notice of her resignation; thus, her employment
was not terminated by defendant. Defendant merely accepted her resignation, excused
her from further performance during the remaining 30-day period, and paid her through
that period. We have already determined plaintiff cannot establish a constructive
termination based on her allegations.
We conclude defendant demonstrated that plaintiff cannot establish a cause of
action for breach of the employment contract, and therefore adjudication of this cause of
action in defendant’s favor was proper.
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XI. Misrepresentation (Tenth Cause of Action)
Plaintiff’s tenth cause of action is headed “intentional misrepresentation.”
(Capitalization omitted.) It alleges that, when plaintiff was hired, defendant made
promises it did not intend to perform. Defendant needed to hire a physician with opioid
experience in order to qualify for a federal grant, and plaintiff’s resume fit the
requirements. Plaintiff was hired due to her opioid experience. After receiving the
federal grant, defendant intentionally harassed plaintiff to create a hostile work
environment.
The trial court treated the claim as one based on promissory fraud, that is, a
promise made without intention of performing it. “Promissory fraud or false promise
‘ “is a subspecies of [the action for] fraud and deceit. A promise to do something
necessarily implies the intention to perform; hence, where a promise is made without
such intention, there is an implied misrepresentation of fact that may be actionable fraud.
[Citations.]” ’ [Citations.] [¶] ‘The elements of promissory fraud ... are: (1) a promise
made regarding a material fact without any intention of performing it; (2) the existence of
the intent not to perform at the time the promise was made; (3) intent to deceive or induce
the promisee to enter into a transaction; (4) reasonable reliance by the promisee;
(5) nonperformance by the party making the promise; and (6) resulting damage to the
promise[e].’ ” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498.)
Addressing the fifth element, defendant presented evidence that it did not breach
the contract; it addressed the allegations set out in the breach of contract cause of action.
Additionally, defendant provided evidence that it applied for a Health Resources and
Services Administration Substance Abuse Service Expansion in October 2015, almost a
year prior to the date plaintiff was hired, and Dr. Phui was identified as the physician of
record for the program; defendant was awarded the grant. Defendant asserts these facts
disprove plaintiff’s allegation that defendant promised to perform the employment
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contract in order to induce plaintiff to work for defendant, so defendant would qualify for
the federal grant.
Our previous discussion of the wrongful termination cause of action negates the
fifth element—nonperformance of the promise—to the extent plaintiff contends
defendant’s failure to perform the contract consisted of subjecting her to racial
harassment sufficient to constructively discharge her from defendant’s employment. As
we concluded with respect to the wrongful termination cause of action, the acts plaintiff
alleged as harassment consisted of minor, occasional acts by several different people
rather than a concerted pattern of pervasive harassment designed to bring about a
constructive termination.
Plaintiff’s argument of error as to this cause of action is unclear. She first states
defendant made promises to induce plaintiff to act on them. She repeats the complaint’s
allegations about being hired to qualify for a grant and being harassed after the grant was
received. Subsequently, she argues the trial court recharacterized the cause of action as
one for promissory fraud, when it was actually for fraud by concealment. The tenth
cause of action, however, did not allege concealment of anything other than the alleged
intention not to perform as promised. Accordingly, we conclude the trial court correctly
concluded defendant met its burden of demonstrating this cause of action was without
merit, and plaintiff failed to raise a triable issue of material fact.
XII. Conspiracy (Thirteenth Cause of Action)
The thirteenth cause of action of plaintiff’s complaint is headed “conspiracy.”
(Capitalization omitted.) Civil conspiracy is not an independent tort. (Kidron v. Movie
Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.) The basis of a civil conspiracy is
the formation of a group of two or more persons who have agreed to a common plan or
design to commit a tortious act. (Id. at p. 1582.) “ ‘ “A civil conspiracy, however
atrocious, does not per se give rise to a cause of action unless a civil wrong has been
committed resulting in damage.” ’ ” (Applied Equipment Corp. v. Litton Saudi Arabia
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Ltd. (1994) 7 Cal.4th 503, 511.) A cause of action for conspiracy to commit a tort
includes three elements: (1) the formation and operation of the conspiracy, (2) wrongful
act or acts done in furtherance of the conspiracy, and (3) damages arising from the
wrongful conduct. (Ibid.)
The thirteenth cause of action alleges “[d]efendant knowingly and willingly
conspired and agreed among themselves to defraud Plaintiff.” It alleges plaintiff “relied
upon the employment [contract] and believed it to be true.” Thus, it seems to refer back
to the tenth cause of action for misrepresentation as the tort supporting the alleged
conspiracy. The tenth cause of action alleged defendant made promises in the
employment contract that it did not intend to perform. In her briefs, plaintiff argues
unspecified defendants conspired to defraud her, she relied on the employment contract
and believed it to be true, and defendant had no intention of abiding by the contract. As
previously discussed, defendant demonstrated the fraud cause of action was without
merit. Because the underlying tort cannot be established, the second element—a
wrongful act committed in furtherance of the conspiracy—is lacking.
Further, a conspiracy requires multiple persons forming an agreement together.
Although the complaint names a number of Doe defendants, the thirteenth cause of action
does not identify any of them or explain who they are in relation to plaintiff or defendant,
what they did to manifest an agreement to defraud plaintiff, or what they did to further
the conspiracy. The argument in plaintiff’s brief does not supply any of this information.
It refers to defendant in the singular and asserts “the entire organization acted in concert
and harmed” plaintiff.
“A corporate employee cannot conspire with his or her corporate employer; that
would be tantamount to a person conspiring with himself. Thus when a corporate
employee acts in his or her authorized capacity on behalf of his or her corporate
employer, there can be no claim of conspiracy between the corporate employer and the
corporate employee. [Citations.] In such a circumstance, the element of concert is
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missing.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 78.) Thus,
plaintiff’s conspiracy cause of action also fails because there is no allegation or evidence
that anyone outside defendant’s organization conspired with it to defraud plaintiff by
making promises in her employment contract with intent not to perform them.
XIII. Unfair Business Practices (Sixth Cause of Action)
Plaintiff’s sixth cause of action alleges a claim against defendant for unfair
business practices under Business and Professions Code section 17200 et seq. It alleges
defendant unlawfully or unfairly profited and was unjustly enriched when it allowed
plaintiff only eight vacation hours for the year and when she worked overtime hours
without compensation. Defendant also allegedly engaged in unlawful business practices
in violation of Labor Code section 1102.5 by creating substandard and detrimental
working conditions.
The unfair competition law defines unfair competition to include “any unlawful,
unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) It
“ ‘ “borrows” violations of other laws and treats them as unlawful practices’ that the
unfair competition law makes independently actionable.” (Cel-Tech Communications,
Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) It also broadly
proscribes unfair or fraudulent practices, in order to enable courts to deal with the
“ ‘innumerable “ ‘new schemes which the fertility of man’s invention would
contrive.’ ” ’ ” (Id. at p. 181.) However, “a plaintiff may not bring an action under the
unfair competition law if some other provision bars it.… In other words, courts may not
use the unfair competition law to condemn actions the Legislature permits.” (Id. at
p. 184.)
Defendant submitted evidence disproving plaintiff’s allegation that she was
allowed only eight hours of vacation time a year. Consequently, that allegation cannot
establish an unfair or unlawful business practice. Plaintiff’s claim that defendant failed to
pay her overtime compensation, although she consistently worked more than 40 hours per
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week, also cannot form the basis of a cause of action for unlawful or unfair business
practices. Plaintiff contracted to be employed with defendant in its clinic as a licensed
physician. Licensed physicians engaging in duties that require licensure as a physician
are generally exempt from payment of overtime wages. (Lab. Code, § 515.6, subd. (a).)
Since the law exempts physicians from payment of overtime wages, the courts may not
use the unfair competition law to effectively require the employer to pay it.
Plaintiff’s final allegation seems to be that defendant engaged in an unlawful
business practice by violating Labor Code section 1102.5, which prohibits an employer
from retaliating against an employee for disclosing to a government agency information
about suspected illegal conduct. As we concluded in our review of the ruling on the first
cause of action, the evidence demonstrated that the retaliatory acts plaintiff identified as
those violating Labor Code section 1102.5 either did not occur at all or occurred prior to
her report to the Medical Board of California. Consequently, they could not have
occurred in retaliation for plaintiff’s report to the Medical Board of California.
The trial court did not err in summarily adjudicating this cause of action in favor
of defendant.
XIV. Libel and Slander (Eighth & Ninth Causes of Action)
Libel and slander are forms of defamation. (Civ. Code, § 44.) “The tort of
defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and
(d) unprivileged, and that (e) has a natural tendency to injure or that causes special
damage.’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Libel is defamation in written,
printed, or picture form; slander is oral defamation. (Civ. Code, §§ 45, 46.)
“A viable defamation claim requires the existence of a provable falsehood.
[Citations.] ‘ “ ‘Statements do not imply a provably false factual assertion and thus
cannot form the basis of a defamation action if they cannot “ ‘reasonably [be] interpreted
as stating actual facts’ about an individual.” ’ ” ’ ” (Hawran v. Hixson (2012)
209 Cal.App.4th 256, 289.) Rhetorical hyperbole, vigorous epithets, lusty and
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imaginative expressions of contempt, and language used in a loose and figurative sense
do not constitute provably false factual assertions. (Nygård, Inc. v. Uusi-Kerttula (2008)
159 Cal.App.4th 1027, 1048.)
“ ‘ “Because [a defamatory] statement must contain a provable falsehood, courts
distinguish between statements of fact and statements of opinion for purposes of
defamation liability. Although statements of fact may be actionable as libel, statements
of opinion are constitutionally protected.” ’ ” (Medical Marijuana, Inc. v.
ProjectCBD.com (2020) 46 Cal.App.5th 869, 884.) The court applies a totality of the
circumstances test to determine whether a statement is fact or opinion; it looks to the
language of the statement itself and the context in which the statement was made.
(Hawran v. Hixson, supra, 209 Cal.App.4th at p. 289.) “Whether challenged statements
convey the requisite factual imputation is ordinarily a question of law for the court.” (Id.
at p. 290.)
Plaintiff’s eighth cause of action for libel alleges plaintiff was referred to in a
derogatory manner in the March 8, 2017 text messages exchanged among defendant’s
employees. In the text messages, one employee stated she was “taking homemade arroz
con leche (rice pudding)” to the potluck. Christina responded, “Maaaaa nigga!!!!”
followed by two raising hands emojis. Others texted their approval of the proposed dish:
“Yum. Thanks my favorite”; “Lol lol,” followed by six hugging face emojis; and an OK
hand emoji. Plaintiff described the medical assistants involved in the conversation as
“excited,” tossing around ideas for what dishes to bring.
After considering the totality of the circumstances—the language of the statement
made and the context in which it was made—we conclude the racial epithet to which
plaintiff objects cannot reasonably be interpreted as stating any actual fact about plaintiff.
In the absence of a factual statement about plaintiff, the eighth cause of action does not
present a viable cause of action for libel.
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Plaintiff’s ninth cause of action for slander alleges Christina and Betty made
multiple offensive and derogatory statements in plaintiff’s presence, referring to
plaintiff’s multiracial identity as funny and disgusting. Christina and Betty made the
statements to each other and in plaintiff’s presence. Defendant harmed plaintiff by
permitting other employees to make statements to plaintiff.
Plaintiff’s own deposition testimony showed plaintiff identified herself as African-
American, not multiracial. Christina told others, in plaintiff’s presence, that Christina
was half white and half black; she did not comment on plaintiff’s racial background. As
plaintiff recounted the conversation: “[W]hen I first started working there, it was some
kind of conversation between the medical assistants about being … half white and half
black and specifically Christina. She was saying something about … being half white
and half black and … mixed race, that sort of thing.… And it was this whole
conversation.… I was not part of the conversation. I stayed out of the conversation.… It
made me feel really uncomfortable.”
As described by plaintiff, Christina’s comments related to her own multiracial
heritage, not plaintiff’s. Christina made no factual statement about plaintiff or her
heritage.
Betty also made no factual statements about plaintiff. Plaintiff testified in
deposition:
“A. [Betty] had come up to me and said to me, ‘Why don’t you
wear a wig like one of the other medical assistants does?’
“Q. And why did you find that inappropriate or discrimination?
“A. Because I thought my hair was kind of nice.
“Q. Do you attribute persons wearing a wig to only African-
Americans?
30.
“A. Well, they said that they didn’t understand why I wore it like
the other African-American on the premises wore one. So I -- I didn’t like
the statement.”
Betty asked plaintiff a question about why she did not wear a wig; it was not a
factual statement that could be proven false. Even if the question implied a criticism of
plaintiff’s appearance or choice of hairstyle, it would present only a matter of opinion,
not a provably false factual assertion.
Betty also commented on the salt plaintiff put on her food. As plaintiff described
it: “We were all eating or something like that. And then when we were eating, [Betty]
said something … like ‘I’m watching your diet and I see you are putting a lot of salt’ and
something to do with … salt and … then demographics and high blood pressure.” At
most, this was an implied expression of Betty’s opinion that plaintiff should use less salt
in her diet. It was not a provable falsehood.
We conclude the statements made by Christina and Betty cannot reasonably be
interpreted as stating any actual fact about plaintiff. Consequently, plaintiff’s ninth cause
of action does not present a viable cause of action for slander.
DISPOSITION
The judgment is affirmed. Defendant is entitled to its costs on appeal.
HILL, P.J.
WE CONCUR:
SMITH, J.
MEEHAN, J.
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