McCluskey v. Hendricks CA2/2

Filed 6/27/23 McCluskey v. Hendricks CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
VERONICA MCCLUSKEY, B318445
(c/w B315161)
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC671735)
WILLIAM HENDRICKS et al.,
Defendants and Respondents.
APPEAL from orders and a judgment of the Superior Court
of Los Angeles County. Lia Martin, Judge. Affirmed.
Law Office of Michael Mogan and Michael S. Mogan for
Plaintiff and Appellant.
Miller Wanner, Kathrin A. Wanner and Kirsten E. Miller
for Defendants and Respondents.
______________________________
Defendants and respondents William Hendricks (William),
and Roxanne Hendricks (Roxanne)1 and plaintiff and appellant
Veronica McCluskey (McCluskey) were very briefly Airbnb
cohosts in the rental of an apartment owned by defendants.
When their relationship soured, this litigation ensued. After
entertaining multiple motions and overseeing a trial, the trial
court entered judgment in favor of defendants on McCluskey’s
complaint and in favor of William on his cross-complaint against
McCluskey. McCluskey appeals, challenging numerous trial
court orders as well as the judgment; McCluskey’s attorney,
Michael S. Mogan (Mogan), challenges an award of monetary
sanctions issued against him.
We affirm.
FACTUAL BACKGROUND
Defendants, who are married, “lived in Iowa [and] owned
an apartment in Los Angeles that they rented out on a short-
term basis through Airbnb. In May 2017, [McCluskey] agreed to
act as their cohost. In that role, she prepared the apartment for
new guests. In early June 2017, [William] was addicted to opiate
pain pills, and he sometimes had pills delivered to locations
where he was traveling. Because [William] planned to be
traveling to Los Angeles, he arranged to have pills mailed to the
apartment.” (McCluskey v. Hendricks (Sept. 17, 2019, B292470)
[nonpub. opn.], at p. 2.)
On June 6, 2017, McCluskey mistakenly opened a single
package addressed to William containing pills; she and William
1
Because defendants share the same last name, when we
refer to them individually, we use their first names. No
disrespect is intended.
2
had a text exchange about it, in which William apologized and
said that he would make arrangements for the pills to be
removed from the apartment by someone else.
“Soon after, [the parties’] relationship deteriorated because
[McCluskey] was not getting paid through Airbnb. Also,
[McCluskey] accused [William] of making derogatory comments
about her to customers. She ended their business relationship
and texted that she would forward everything to Airbnb.”
(McCluskey v. Hendricks, supra, B292470, at p. 3.)
At this point, McCluskey “launched [her] campaign against
William.” She “decided . . . that Airbnb should not allow
[defendants] to be hosts,” so she lied, making a host of derogatory
false statements about William.
Airbnb commenced an investigation into McCluskey’s
allegations and requested information from defendants.
Defendants responded to the request by making statements
about McCluskey. Shortly thereafter, Airbnb ended its business
relationship with McCluskey.
After Airbnb deactivated McCluskey’s account, McCluskey
continued to make false statements about William, such as
accusing him of being involved in a drug smuggling ring.
PROCEDURAL BACKGROUND
I. The pleadings; McCluskey’s motion to strike portions of the
cross-complaint
On August 9, 2017, McCluskey initiated this action against
defendants. The second amended complaint, which is the
operative pleading, alleges 10 causes of action: intentional
infliction of emotional distress, intentional interference with
contractual relations, intentional interference with prospective
business advantage, retaliation, wrongful termination, retaliation
3
for whistleblowing (Lab. Code, § 1102.5, subd. (b)), retaliation for
refusing to engage in illegal conduct (Lab. Code, § 1102.5, subd.
(c)), defamation, sexual harassment, and negligent infliction of
emotional distress. These claims stem from McCluskey’s
inadvertent opening of the one package containing drugs, her
communications with Airbnb regarding the drugs, William’s
alleged false statements about her, Airbnb’s cancellation of her
reservations, and defendants’ alleged retaliation against
McCluskey for reporting the illegal drugs and her refusal to
participate in the illegal “drug shipment operations.”
William filed a cross-complaint against McCluskey alleging
defamation.2 He alleged that McCluskey defamed him by
publishing false statements that he was “a criminal and a drug
dealer,” as well as part of a drug smuggling and/or trafficking
ring. He requested, inter alia, general and compensatory
damages, as well as special damages.
On June 17, 2020, McCluskey moved to strike portions of
the cross-complaint pursuant to Code of Civil Procedure sections
435 and 436.3 Her motion was denied.
2
On February 8, 2018, McCluskey moved to strike the cross-
complaint pursuant to California’s anti-SLAPP (strategic lawsuit
against public participation) statute. The trial court denied her
motion; McCluskey appealed, and we affirmed the trial court’s
order. (McCluskey v. Hendricks, supra, B292470, at p. 1.) The
trial court proceedings were stayed while that appeal was
pending. The stay was lifted on February 26, 2020.
3
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
4
McCluskey thereafter filed a motion for leave to file a third
amended complaint as well as an amended motion and a second
amended motion. Her motion was denied.4
II. Discovery motion
During the course of litigation, McCluskey filed a motion to
compel certain discovery responses from Roxanne. The trial
court denied McCluskey’s motion and ordered Mogan,
McCluskey’s attorney, to pay $1,400 in monetary sanctions.
III. Defendants’ motion for summary judgment
On March 20, 2020, defendants moved for summary
judgment or, in the alternative, summary adjudication of each
cause of action pled in McCluskey’s second amended complaint.
McCluskey filed two ex parte applications seeking to continue the
hearing on the motion.5 Both applications were denied.
Ultimately, the trial court granted defendants’ motion in large
part, adjudicating nine of the 10 causes of action in their favor;
only the defamation cause of action survived.
IV. McCluskey’s motion for summary judgment
On March 3, 2021, McCluskey moved for summary
judgment of the defamation cause of action alleged against her by
William in his cross-complaint. The trial court denied her
motion.
4
Several months after her motion was denied, it seems that
McCluskey filed an ex parte application asking for leave to file a
third amended complaint. This request was also denied.
5
McCluskey also requested a continuance in her opposition
to defendants’ motion.
5
V. Trial
On February 26, 2020, the trial court set the matter for a
court trial to commence June 7, 2021.
Thereafter, McCluskey filed four ex parte applications
asking that the trial be continued. All four requests were denied.
McCluskey also filed two ex parte applications to request a
jury trial or grant relief from jury waiver. Those applications
were denied, and a bench trial commenced June 9, 2021.
After McCluskey presented her case-in-chief on her claim
for defamation, defendants moved for judgment pursuant to
section 631. The trial court granted their motion.
The matter then proceeded to trial on William’s defamation
claim against McCluskey. After hearing all of the evidence and
considering the parties’ arguments, the trial court found in favor
of William, awarding him $800,000.
McCluskey’s motions for a new trial were denied.
VI. Judgment and appeal
Judgment was entered, and this timely appeal ensued.
DISCUSSION
McCluskey prepared a voluminous appellant’s appendix
(over 11,000 pages) and filed lengthy appellate briefs, lodging
objections to nearly every ruling the trial court made throughout
this protracted litigation. Her appeal seems rooted in the hopes
that “something will stick” and we will conclude that there must
have been prejudicial error given such an exhaustive appeal.
In so doing, McCluskey ignores the basic principles of
appellate review. An appellate court presumes that the judgment
is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
We adopt all intendments and inferences to affirm the judgment
unless the record expressly contradicts them. (Ibid.) An
6
appellant has the burden of overcoming the presumption of
correctness, and we decline to consider issues raised in an
opening brief that are not properly presented or sufficiently
developed to be cognizable. (See People v. Stanley (1995)
10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214,
fn. 19, abrogated in part on other grounds by People v. Griffin
(2004) 33 Cal.4th 536, 555, fn. 5; Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852 (Benach).) “It is not our place to
construct theories or arguments to undermine the judgment and
defeat the presumption of correctness.” (Benach, supra, at p. 852;
see also Alvarez v. Jacmar Pacific Pizza Corp. (2002)
100 CalApp.4th 1190, 1206, fn. 11 [“It is not our responsibility to
develop an appellant’s argument”].)
With these principles in mind, we turn to the issues raised
in McCluskey’s appeal.
I. McCluskey’s motion for leave to file a third amended complaint
McCluskey argues that the trial court abused its discretion
in denying her second amended motion for leave to file a third
amended complaint.
A. Relevant factual background
As set forth above, McCluskey initiated this action against
defendants on August 9, 2017. On May 14, 2018, she filed her
second amended complaint.
On March 20, 2020, defendants filed their motion for
summary judgment/adjudication, seeking judgment on all 10
causes of action alleged against them in the second amended
complaint. The motion was scheduled to be heard on June 4,
2020.
At some point, the hearing on defendants’ motion was
continued to September 23, 2020.
7
While that motion was pending, and before McCluskey’s
opposition was due, on August 17, 2020, McCluskey filed a
motion for leave to file a third amended complaint. Specifically,
she sought to add more detailed allegations to support her
defamation cause of action. The hearing on the motion was set
for February 17, 2021.
While McCluskey’s motion for leave was pending, the trial
court heard defendants’ motion for summary
judgment/adjudication. On November 30, 2020, it granted the
motion in large part, adjudicating nine of the 10 causes of action
in favor of defendants and against McCluskey. The only cause of
action that survived was McCluskey’s defamation claim.
Nearly two months later, on January 22, 2021, McCluskey
filed an amended motion for leave to file a third amended
complaint. Her motion specifically notes: “On November 30,
2020 this Court granted [defendants’] motion for summary
adjudication in part on nine of ten of Plaintiff’s claims.
. . . Plaintiff respectfully asks this Court to allow Plaintiff
. . . leave to amend the complaint to reinstate all nine claims
which this Court granted summary adjudication for on November
30, 2020 based on Defendants[’] egregious conduct in providing
false testimony in response to a simple discovery request.”
Four days later, McCluskey filed a second amended motion
for leave to file a third amended complaint.
Defendants opposed McCluskey’s motion.
On February 23, 2021, the trial court denied McCluskey’s
motion seeking leave to file a third amended complaint. It
reasoned: “Plaintiff repeatedly argues in the motion and reply
that the new causes of action are based on the same general set of
facts, and they allege only new legal theories. Plaintiff was not
8
diligent in moving for leave to amend years after the action was
filed. Plaintiff failed to explain why she did not seek to amend
the complaint earlier.”
Also, defendants established prejudice. They “brought a
motion for summary judgment, an expensive motion, which was
successful as to most of the causes of action in the operative
complaint. According to plaintiff’s own motion, these causes of
action are based on the same general facts. If plaintiff were to be
granted the leave she seeks, then defendants would be faced with
either bringing the new causes of action to trial or filing a new
dispositive motion. As only the defamation cause of action
survived adjudication, the trial was narrowed to the facts
supporting defamation. The new causes of action would greatly
expand the scope of the trial, as they are not based on the same
facts as defamation. Because trial is in less than four months,
there is not enough time before trial to bring a motion for
summary adjudication. There would have to be a trial
continuance. There is also the expense of another summary
adjudication motion. Plaintiff’s failure to timely bring these
causes of action has denied defendants the opportunity to have
them adjudicated as part of the initial motion.”
Finally, to the extent McCluskey requested reinstatement
of adjudicated causes of action, her request amounted to an
improper motion for reconsideration.6
6
Sometime between May 21, 2021, and June 2, 2021,
McCluskey filed an ex parte application, again seeking leave to
file a third amended complaint. The trial court denied this
request on June 2, 2021. On appeal, plaintiff is not challenging
this order.
9
B. Applicable law and standard of review
A trial court has “wide” discretion, “in furtherance of
justice” to “allow a party to amend [her] pleading.” (§ 473, subd.
(a)(1); Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th
1263, 1280.) We accordingly review a trial court’s denial of a
request to amend for an abuse of that discretion. (Melican v.
Regents of University of California (2007) 151 Cal.App.4th 168,
175 (Melican).)
While leave to amend a complaint should be given liberally
(Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 938–939),
there are circumstances in which leave to amend is properly
denied. In particular, denying a request to amend a complaint
may be appropriate when an unreasonable delay in seeking
amendment prejudices the defendant. (Record v. Reason (1999)
73 Cal.App.4th 472, 486–487; Leader v. Health Industries of
America, Inc. (2001) 89 Cal.App.4th 603, 613 (Leader).) Prejudice
can include the time and expense associated with opposing a
legal theory that a plaintiff belatedly seeks to change. (Melican,
supra, 151 Cal.App.4th at p. 176.)
C. Analysis
Applying these legal principles, we conclude that the trial
court did not err. As the trial court expressly noted, McCluskey
was not diligent in moving for leave to amend and defendants
established that they would be prejudiced by an amended
pleading. After all, they had successfully brought a motion for
summary adjudication, resolving nearly all of the causes of action
alleged against them. At that point, allowing McCluskey leave to
file an amended pleading would have expanded the issues for
trial and potentially forced defendants to incur the additional
expense of another motion for summary judgment. And, as the
10
trial court correctly found, McCluskey’s motion was in large part
an improper motion for reconsideration of its order granting
defendants’ motion for summary adjudication.
To the extent McCluskey sought to amend her defamation
cause of action, an amendment was not necessary. McCluskey
raised the additional facts that she wanted to allege at trial.
On appeal, McCluskey asserts that she attempted to get,
but could not secure, an earlier date for her hearing; her attorney
was busy; and defendants admitted to some kind of discovery
misconduct in late 2021 that would have changed the outcome of
their summary judgment motion and McCluskey’s motion to
amend. These arguments fail. First, there is no evidence in the
appellate record that McCluskey wanted an earlier date but could
not secure one. (Cal. Rules of Court, rule 8.204(a)(1)(C)7 [an
appellate brief must “[s]upport any reference to a matter in the
record by a citation to the volume and page number of the record
where the matter appears”].) Second, McCluskey offers no legal
authority in support of her assertion that her attorney’s “busy
schedule” is grounds to set aside the trial court’s order. (Benach,
supra, 149 Cal.App.4th at p. 852 [“An appellant must provide
. . . legal authority to support [her] contentions”].) Third,
McCluskey’s contention that defendants obscured evidence is
unfounded.
7
All further references to a rule are to the California Rules
of Court.
11
II. McCluskey’s motion to strike the allegations in the cross-
complaint
McCluskey argues that the trial court erred in denying her
motion to strike portions of the cross-complaint.
A. Relevant procedural background
On June 17, 2020, McCluskey filed a motion to strike 36
separate items from William’s seven-page cross-complaint.
According to her amended motion, these items were irrelevant
and improper and did not constitute defamation.
William opposed the motion, noting that many of the
arguments had already been rejected by the trial court when it
denied McCluskey’s anti-SLAPP motion, an order affirmed on
appeal.
The trial court denied McCluskey’s motion, addressing each
argument raised in her motion. First, it rejected McCluskey’s
contention that because she did not identify William by name in
her communications, there was no defamation. “The
communications with Airbnb were part of a continuing
communication between McCluskey and Airbnb concerning
[William’s] rental and . . . activities. It may be established that
the emails were about him, even if he was not identified by name.
[Citation.] As to the communications on social media and to Fox
News, [William] may be able to establish that it could be
determined the communications were about him.”
Second, “McCluskey argues that stating [William] receiving
drugs is not defamatory as it is not damaging to his reputation or
character. . . . The context of the communications may lead to a
reasonable inference that [William] was more involved with
drugs than receiving a single package of pills. Also it cannot
12
reasonably be argued that stating someone is a drug dealer would
not be damaging to that person’s reputation or character.”
Finally, “[a]s to the request for an order restraining
McCluskey from making defamatory statements about [William],
defendants asserting the affirmative defense of the First
Amendment have the burden to show that expressive activities
‘merit First Amendment protection.’ [Citation.] If the
statements are established as defamatory, they may not be
protected under the First Amendment.”
B. Standard of review and relevant law
Section 435, subdivision (b)(1), provides, in relevant part,
that a party may move to strike any part of a cross-complaint.
(§ 435, subd. (b)(1).) Section 436 continues: “The court may,
upon a motion made pursuant to Section 435 . . . and upon terms
it deems proper: [¶] (a) Strike out any irrelevant, false, or
improper matter inserted in any pleading. [¶] (b) Strike out all or
any part of any pleading not drawn or filed in conformity with the
laws of this state, a court rule, or an order of the court.” (§ 436,
subds. (a) & (b).)
We review a trial court order denying a motion to strike for
abuse of discretion. (Leader, supra, 89 Cal.App.4th at p. 612.)
C. Analysis
We readily conclude that the trial court did not abuse its
discretion in denying McCluskey’s motion to strike portions of
William’s cross-complaint. Read as a whole, the pleading states a
claim for defamation. It alleges that McCluskey made a host of
false and derogatory remarks about William on social media, to
Airbnb, and to Fox News. The pleading does not contain
improper or irrelevant allegations, and nothing in McCluskey’s
13
appellate briefs provides a basis for setting aside the trial court’s
order.
III. Defendants’ motion for summary adjudication
McCluskey argues that the trial court erred in (1) denying
her requests to continue the hearing on defendants’ motion for
summary judgment, (2) overlooking certain procedural errors
with the motion, and (3) summarily adjudicating nine of the 10
causes of action in favor of defendants.
A. Requests for continuance
1. Relevant procedural background
On March 20, 2020, defendants filed a motion for summary
judgment, or, in the alternative, summary adjudication of
McCluskey’s second amended complaint. The hearing was
originally set for June 4, 2020, but later moved to September 23,
2020.
On August 24, 2020, McCluskey filed her first ex parte
application asking that the hearing and filing deadlines be
continued. The trial court denied the application, partly because
she failed to make the requisite showing under rule 3.1202(c).8
One week later, McCluskey filed her second ex parte
application to continue the hearing and filing deadlines. Again,
her request was denied.
Eight days later, McCluskey filed her opposition to
defendants’ motion. In her opposition, McCluskey requested a
continuance pursuant to section 437c, subdivision (h), asserting:
8
Rule 3.1202(c) provides: “An applicant must make an
affirmative factual showing in a declaration containing
competent testimony based on personal knowledge of irreparable
harm, immediate danger, or any other statutory basis for
granting relief ex parte.”
14
“Plaintiff filed four motions to compel seeking discovery
responses which Plaintiff needs to further meet her burden of
proof in opposing this motion and undermine Defendants[’]
credibility.”
On November 30, 2020, the trial court issued its ruling on
defendants’ motion. Regarding McCluskey’s request for a
continuance, the trial court determined: “The court is not
inclined to grant the request for continuance. Plaintiff has
submitted substantial evidence in opposition to the motion. It
does not appear that the evidence she hopes to obtain through
the discovery at issue would change the rulings on the issues for
adjudication.”
The trial court added: “There is no dispute that the
working relationship the parties had with one another was of a
short [duration] (from late May 2017 through mid-June 2017),
and that there was only one occasion when the plaintiff and the
defendants were physically present with one another. The
communications between plaintiff and the defendants were in
written form, mainly via text messages and emails. There simply
is no more evidence to be obtained with respect to the parties’
interactions with one another during their approximately one-
month long business relationship.”
2. Relevant law and standard of review
Section 437c, subdivision (h), provides: “If it appears from
the affidavits submitted in opposition to a motion for summary
judgment or summary adjudication, or both, that facts essential
to justify opposition may exist but cannot for reasons stated, be
presented, the court shall deny the motion, order a continuance to
permit affidavits to be obtained or discovery to be had, or make
any other order as may be just. The application to continue the
15
motion to obtain necessary discovery may also be made by
ex parte motion at any time on or before the date the opposition
response to the motion is due.”
“‘When a party makes a good faith showing by affidavit
demonstrating that a continuance is necessary to obtain essential
facts to oppose a motion for summary judgment, the trial court
must grant the continuance request.’” (Johnson v. Alameda
County Medical Center (2012) 205 Cal.App.4th 521, 532.) “The
affidavit is required to show ‘“(1) the facts to be obtained are
essential to opposing the motion; (2) there is reason to believe
such facts may exist; and (3) the reasons why additional time is
needed to obtain [or discover] these facts.”’ [Citations.]”
(Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 152–
153.)
“[A] party who seeks a continuance under section 437c,
subdivision (h), must show why the discovery necessary to oppose
the motion for summary judgment or summary judication could
not have been completed sooner.”9 (Braganza v. Albertson’s LLC,
supra, 67 Cal.App.5th at p. 156.)
9
“In Cooksey v. Alexakis (2004) 123 Cal.App.4th 426, at
pages 255 to 257, the Second District Court of Appeal, Division
Five, observed that there was a split of opinion among the
California appellate courts ‘as to the effect of the absence of such
an explanation’ of why discovery was not completed sooner, when
a party seeks a continuance under section 437c, subdivision (h).
[Citation.] That split of authority continues to this day.
[Citations.] The Cooksey court noted that the courts in the First,
Second, and Sixth Appellate Districts had upheld denials of
continuance requests, at least partly on the ground that the party
seeking the continuance had had adequate time to complete the
16
“The decision to grant or deny a continuance request under
section 437c, subdivision (h), is vested in the trial court’s
discretion [citation], and the court’s ruling is reviewed for an
abuse of discretion. [Citation.]” (Braganza v. Albertson’s LLC,
supra, 67 Cal.App.5th at p. 152.)
3. Analysis
McCluskey offers no reason to overturn the trial court’s
decision to deny her requests to continue the hearing on
defendants’ motion. While she claims that there was reason to
believe that additional facts existed, she fails to explain how that
hypothetical evidence would have created a triable issue of fact as
to any of the nine causes of action adjudicated against her. The
fact that in person depositions were impractical and unsafe did
not warrant a continuance; during the pandemic, many
proceedings, including depositions, occurred virtually.
B. Procedural objections
McCluskey levies several procedural objections to
defendants’ motion for summary judgment, including the fact
that defendants’ reply separate statement offered hundreds of
additional pages of argument and therefore should have been
stricken. Alternatively, the trial court should have considered
her amended separate statement. But she offers no legal
argument explaining why these alleged errors compel reversal of
the trial court’s order. (See rule 8.204(a)(1)(B) [every appellate
brief must “support each point by argument”]; Benach, supra, 149
Cal.App.4th at p. 852 [appellant bears the burden of supporting a
point with reasoned argument].)
discovery. [Citations.]” (Braganza v. Albertson’s LLC, supra,
67 Cal.App.5th at p. 155.)
17
C. Defendants’ evidence and McCluskey’s opposition
In their motion, defendants argued that there were no
triable issues of fact as to any of the causes of action alleged
against them. In support, Roxanne and William each filed a
declaration. Attached to their declarations were copies of text
message exchanges between defendants and McCluskey as well
as e-mails between defendants and Airbnb.
On September 8, 2020, McCluskey filed her opposition to
the motion, claiming that there were triable issues of material
fact as to each cause of action. In particular, she asserted that
defendants caused Airbnb to terminate its business relationship
with her. She also argued that defendants terminated her
employment either because she refused to participate in illegal
activity or because she reported the illegal activity to Airbnb and
law enforcement. Defendants also retaliated against her by
subjecting her to adverse employment actions, including
(1) defendants’ refusal to pay her for work she had done on
June 16, 2017, (2) defendants’ demand that she give them two
weeks’ notice before quitting, and (3) William’s derogatory
remark about her to an Airbnb guest. In support, McCluskey
submitted a declaration.
D. Trial court order
The trial court summarily adjudicated nine of McCluskey’s
10 causes of action in defendants’ favor.10 Regarding the first
cause of action for intentional infliction of emotional distress, the
trial court found: “It is undisputed that . . . William had illegal
drugs shipped to the rental unit at a time when [he] was not
10
McCluskey’s third cause of action for defamation survived
and went to trial.
18
present and [McCluskey] was in charge of the property. It is
undisputed that [McCluskey] discovered the illegal drugs. It is
also undisputed that . . . William did not intend for [McCluskey]
to open the package. He apologized, and arranged for someone
else to remove the pills from the premises. [McCluskey] testified
that she opened the package by accident, thinking that she was
opening a package that had a USB inside it.” The trial court
determined as a matter of law that these undisputed facts did not
constitute extreme and outrageous conduct.
The second cause of action for intentional interference with
contractual relations and third cause of action for intentional
interference with prospective economic advantage failed because
McCluskey could not establish causation as a matter of law.
“Defendants submitted evidence of the investigation Airbnb
conducted and how the company arrived at its decision to sever
their relationship with [McCluskey]. The evidence defendants
submit shows that . . . the decision to delist [McCluskey] from
Airbnb and cancel her pending reservations was made by
Airbnb.”
Regarding the fourth cause of action for retaliation, the
trial court found no causal link between any alleged protected
activity and any adverse employment action. After all, the
undisputed facts established that at the time McCluskey left the
job (either June 16 or 17, 2017), “defendants did not know that
[she] had reported [their] conduct to Airbnb or to the police.
[She] did not disclose her reports to defendants, and, in fact,
stated she had not made reports, for fear of retaliation.”
The fifth cause of action for wrongful termination also
failed. “There [was] no triable issue of fact as to whether
[McCluskey] was constructively discharged because of a refusal to
19
participate in activities she believed were illegal or defendants’
belief that [McCluskey] may report activities she believed to be
illegal.”
Similarly, the sixth cause of action for retaliation for
whistleblowing failed because there was “no evidence that
defendants had any belief that [McCluskey] would make [a report
about the delivery of illegal drugs] to either Airbnb or to the
police.”
Regarding the seventh cause of action for retaliation for
failure to engage in illegal conduct, the trial court found no
evidence of an adverse employment action. Defendants’ request
for two weeks’ notice did not constitute an adverse employment
action as a matter of law, particularly when, as here, McCluskey
was the first to mention giving defendants two weeks’ notice.
Likewise, William’s alleged derogatory comment about
McCluskey was not an adverse employment action.
Regarding the ninth cause of action for sexual harassment,
the trial court found that there was no evidence that the alleged
misconduct was severe or pervasive, as required by Civil Code
section 51.9.
Finally, the tenth cause of action for negligent infliction of
emotional distress failed as a matter of law. “The only alleged
wrongful conduct which could threaten [McCluskey] with
physical injury [was] William’s statement to [a third party] to
‘throw [her] out.’ That statement does not support this cause of
action, as it was not made to [McCluskey]. . . . The other conduct
alleged threatened only damage to [McCluskey’s] financial
interests, her Airbnb business,” which is insufficient.
20
E. Relevant law and standard of review
A “motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” (§ 437c, subd. (c).) “To secure summary
judgment, a moving defendant may . . . disprove at least one
essential element of the plaintiff’s cause of action [citations] or
show that an element of the cause of action cannot be established
[citation].” (Sanchez v. Swinerton & Walberg Co. (1996)
47 Cal.App.4th 1461, 1465; Leslie G. v. Perry & Associates (1996)
43 Cal.App.4th 472, 482.)
We review the trial court’s order de novo. “To analyze the
issues, ‘we follow the traditional three-step analysis. “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.
[Citation.]” [Citation.]’ [Citation.]” (Kaney v. Custance (2022)
74 Cal.App.5th 201, 213.)
F. McCluskey’s nine causes of action fail as a matter of law
1. Intentional infliction of emotional distress
“The elements of a cause of action for intentional infliction
of emotional distress are (i) outrageous conduct by defendant,
(ii) an intention by defendant to cause, or reckless disregard of
the probability of causing, emotional distress, (iii) severe
emotional distress, and (iv) an actual and proximate causal link
between the tortious conduct and the emotional distress.
21
[Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d
278, 300.) “‘Conduct to be outrageous must be so extreme as to
exceed all bounds of that usually tolerated in a civilized
community.’ [Citation.] Generally, conduct will be found to be
actionable where the ‘recitation of the facts to an average
member of the community would arouse his resentment against
the actor, and lead him to exclaim, “Outrageous!”’ [Citation.]”
(KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023,
1028.)
In the first cause of action, McCluskey alleges that she
inadvertently opened a mailed package containing William’s
illegal drugs. We agree with the trial court that this one time
incident is not outrageous as a matter of law.
On appeal, as she did below, McCluskey argues that the
destruction of her Airbnb cohost business, Roxanne’s “demand[]”
that McCluskey give defendants two weeks’ notice before
quitting, and William’s statements to Airbnb all constitute
extreme and outrageous conduct. But those were not the theories
alleged in the second amended complaint.11
It well-settled that “‘“[t]he function of the pleadings in a
motion for summary judgment is to delimit the scope of the
issues. . . ”’ and to frame ‘the outer measure of materiality in a
summary judgment proceeding.’ [Citation.] . . . ‘The materiality
of a disputed fact is measured by the pleadings [citations], which
“set the boundaries of the issues to be resolved at summary
judgment.” [Citations.]’ [Citation.] Accordingly, the burden of a
11
To the extent this cause of action is duplicative or
derivative of other claims, it fails for the same reasons as those
do.
22
defendant moving for summary judgment only requires that he or
she negate plaintiff’s theories of liability as alleged in the
complaint; that is, a moving party need not refute liability on
some theoretical possibility not included in the pleadings.
[Citations.] [¶] Furthermore, ‘“‘“[t]he [papers] filed in response
to a defendant’s motion for summary judgment may not create
issues outside the pleadings and are not a substitute for an
amendment to the pleadings.”’” [Citation.]’ [Citation.]” (Hutton
v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.)
While McCluskey did allege that defendants harassed,
intimidated, and committed “differential treatment” of her, there
is no evidence to create a triable issue of fact concerning such a
broad, generic claim.
2. Intentional interference with contractual relations
and intentional interference with prospective business advantage
The elements of a cause of action for intentional
interference with contractual relations are (1) a valid contract
between the plaintiff and a third party; (2) the defendant's
knowledge of this contract; (3) the defendant's intentional acts
designed to induce a breach or disruption of the contractual
relationship; (4) actual breach or disruption of the contractual
relationship; and (5) resulting damage. (Ixchel Pharma, LLC v.
Biogen, Inc. (2020) 9 Cal.5th 1130, 1141.) Actions for intentional
interference with at-will contracts also require some
“independently wrongful act” apart from just the interference
with the contract itself. (Id. at p. 1148.)
Similarly, the elements of a cause of action for intentional
interference with prospective business advantage include (1) an
economic relationship between the plaintiff and a third party,
with the probability of future economic benefit to the plaintiff;
23
(2) the defendant’s knowledge of that relationship; (3) the
defendant’s conduct that interfered with that relationship; (4) the
defendant’s conduct was independently wrongful, meaning
wrongful by some measure beyond the fact of the interference
itself, (5) the defendant’s intent, and (6) the defendant’s acts
proximately caused economic harm to the plaintiff. (Drink Tank
Ventures LLC v. Real Soda in Real Bottles, Ltd. (2021)
71 Cal.App.5th 528, 538.)
In her second and third causes of action, McCluskey alleges
that defendants “intentionally engaged in acts designed to induce
a breach or disruption” of her contract and prospective business
relationship with Airbnb. But as the trial court correctly found,
there is no evidence that defendants caused Airbnb to stop doing
business with McCluskey. Rather, the undisputed evidence
shows that Airbnb conducted an investigation after McCluskey
reached out to it about defendants’ alleged illegal activities; as
part of that investigation, Airbnb requested information from
defendants; and Airbnb then decided to terminate its business
relationship with McCluskey. There is no evidence (or even
argument on appeal) that Airbnb cancelled its business
relationship with McCluskey solely based upon what defendants
told Airbnb.
3. Retaliation
Retaliation under the Fair Employment and Housing Act
requires that the plaintiff establish that she was engaged in a
protected activity as an employee; her employer subjected her to
an adverse employment action; and there is a causal link between
the protected activity and the employer’s action. (Thompson v.
City of Monrovia (2010) 186 Cal.App.4th 860, 874.)
24
McCluskey alleges that defendants retaliated against her
for reporting William’s drug activity to Airbnb and the police.
McCluskey’s claim fails because, as the trial court aptly
found, the undisputed facts established that defendants did not
know that she had reported William’s drug activity to either
Airbnb or the police. In fact, McCluskey admitted in her
opposition to defendants’ motion that she told defendants that
“she had not contacted Airbnb,” even though she in fact already
had. She does not even argue on appeal that they knew. Thus,
she did not and cannot prove the necessary causal link to prevail
on this claim.
4. Wrongful termination
“[A]n employer has no right to terminate employment for a
reason that contravenes fundamental public policy as expressed
in a constitutional or statutory provision. [Citation.] An actual
or constructive discharge in violation of fundamental public
policy gives rise to a tort action in favor of the terminated
employee. [Citations.]” (Turner v. Anheuser-Busch, Inc. (1994)
7 Cal.4th 1238, 1252.)
In her fifth cause of action, McCluskey alleges that she was
required to endure offensive conduct while working for
defendants and that she reported the misconduct to Airbnb and
law enforcement. Thereafter, her employment was terminated.
McCluskey did not present any evidence that her
termination (actual or constructive) was wrongful. There is no
evidence that McCluskey’s employment with defendants ended
because she refused to break the law or because defendants
believed she was going to report their illegal activity.
25
5. Retaliation for whistleblowing
In the sixth cause of action, McCluskey alleges that
defendants retaliated against her after she complained to the
police about the shipment of illegal drugs.
Labor Code section 1102.5, subdivision (b), provides, in
relevant part: “An employer, or any person acting on behalf of
the employer, shall not retaliate against an employee for
disclosing information, or because the employer believes that the
employee disclosed or may disclose information, to a government
or law enforcement agency.”
Here, as the trial court found, McCluskey offered no
evidence that defendants either knew that McCluskey had made
a report or believed that she would file such a report. Notably,
she does not argue otherwise on appeal. Thus, her claim fails as
a matter of law.
6. Retaliation for failure to engage in illegal conduct
(Lab. Code, § 1102.5, subd. (b))
In the seventh cause of action, McCluskey alleges that
defendants retaliated against her when “she refused to
participate in the drug shipment operations promulgated by
[defendants] because [McCluskey] believed they were illegal.”
But, there is no evidence of any act of retaliation.
Urging us to conclude otherwise, McCluskey asserts, as she
did below, that defendants retaliated against her “by refusing to
pay her for work she had done on June 16” and demanding two
weeks’ notice before she could leave. She further argues William
retaliated against her by making a derogatory remark about her
to an Airbnb guest.
There is no evidence that defendants refused to pay
McCluskey on June 16, 2017. Rather, the undisputed evidence
26
shows that there was an issue with payment between the cohosts
and Airbnb. Not only was the issue rectified that day, but
William also offered in the meantime to get the monies to
McCluskey outside the Airbnb platform.
We agree with the trial court that Roxanne’s request, albeit
characterized by McCluskey as a demand, for two weeks’ notice
does not constitute an adverse employment action. Defendants
could not force McCluskey to remain in their employment for two
weeks and the undisputed evidence shows that she did not; by
June 17, 2017, she “decided [that] she was going to abandon her
job.”
Finally, to the extent there was evidence that William said
something to an Airbnb guest about McCluskey, that comment
does not constitute retaliation as a matter of law. McCluskey
offers no legal authority or argument to the contrary. (Benach,
supra, 149 Cal.App.4th at p. 852.)
7. Sexual harassment
In the ninth cause of action, McCluskey alleges a claim for
sexual harassment (Civ. Code, § 51.9) against William.
As McCluskey concedes, Civil Code section 51.9 limits
liability to sexually harassing conduct that is “‘pervasive or
severe.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1045.) Despite
her acknowledgment of the law, she offers no evidence or
argument that she was subjected to pervasive or severe sexual
harassment.
On appeal, McCluskey directs us to her statement in her
declaration that an Airbnb guest told her that William asked him
to throw McCluskey out, and she felt “physically threatened by
such comments.” This argument is ridiculous at best. Aside from
27
the fact that there is no admissible evidence of the comment,12 it
does not constitute pervasive or severe sexually harassing
conduct. And, fairly read, it does not threaten physical violence
against McCluskey; rather, William was using the idiom
“throwing her out” colloquially—not literally. Finally, William
did not utter the remark to McCluskey; it was relayed by the
guest to her.
McCluskey also argues that William sexually harassed her
by (1) belittling her safety concerns in an e-mail to Airbnb in
response to its questions after McCluskey and defendants’
cohosting relationship had ended, and (2) calling her a “crazy
bitch” to an Airbnb guest. Neither of these complaints
constitutes pervasive sexual harassment as a matter of law.
Notably, William did not make his “crazy bitch” comment to
McCluskey herself; even if he had, it was an isolated remark.
(Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th
264, 283.)
8. Negligent infliction of emotional distress
Negligent infliction of emotional distress requires the same
elements as negligence: (1) duty, (2) breach of that duty,
(3) causation, and (4) damages. (Klein v. Children’s Hospital
Medical Center (1996) 46 Cal.App.4th 889, 894.)
McCluskey asserts that defendants “were negligent in not
preventing [her] from intercepting the drugs and kept her in such
environment and asked her to commit a crime . . . . ” “When
[McCluskey] discovered the drugs she immediately suffered
12
Defendants objected to this statement in McCluskey’s
declaration. The trial court sustained their objection. McCluskey
does not challenge the trial court’s evidentiary ruling on appeal.
28
extreme emotional distress and wanted to quit and [defendants]
refused to let her quit immediately.” For the reasons set forth
above, these unfounded allegations do not create a triable issue of
material fact.
IV. McCluskey’s motion for summary judgment of the cross-
complaint
McCluskey asserts that the trial court erred in denying her
motion for summary judgment of William’s cross-complaint. She
contends that she presented undisputed evidence that her
statements were true and protected by the litigation privilege
(Civ. Code, § 47, subd. (b)).
A. Relevant procedural background
1. Cross-complaint
On January 16, 2018, William filed a cross-complaint for
defamation against McCluskey. He alleged that McCluskey
“unequivocally referred” to him as a “criminal and a drug dealer.
These statements were disparaging and false.” She also allegedly
made statements that William was running a drug ring and was
a drug smuggler.
2. Motion and opposition
McCluskey filed a motion for summary judgment and/or
adjudication. She argued that the statements she made “were
not false and/or were privileged.” In support, she submitted a
separate statement, which included evidence that William
purchased illegal drugs over the Internet.
William opposed the motion. In his responsive separate
statement, he pointed out that McCluskey’s purported evidence
did not support her claim that he trafficked drugs. At most, the
evidence showed that he sometimes arranged to have drugs
delivered for his personal use.
29
3. Trial court order
The trial court denied McCluskey’s motion, noting: “The
separate statement submitted in support of the motion fails to
provide any facts regarding the alleged statements at issue. To
the extent [McCluskey] is relying on affirmative defenses, the
court cannot evaluate those defenses without reference to the
facts, content, and circumstances surrounding the statements at
issue.
“[McCluskey’s] argument that William admitted to drug
smuggling in his supplemental response to special interrogatories
[citation] is unsupported by the evidence. William stated that he
was addicted to drugs, purchased drugs on the black [market]
internet sites for his own personal use, and had them shipped to
the location he was at the time.
“There are no facts in the separate statement addressing
William’s damages.
“[McCluskey] failed to meet her burden of establishing that
she is entitled to summary judgment.”
B. Relevant law and standard of review
As set forth above, a party in a civil case is entitled to
summary judgment if she can “show that there is no triable issue
as to any material fact.” (§ 437c, subd. (c).) We review an order
denying a motion for summary judgment de novo. (Hill Brothers
Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001,
1005.)
The elements of a cause of action for defamation are: (a) a
publication that is (b) false, (c) defamatory, (d) unprivileged, and
(e) has a natural tendency to injure or cause special damage.
(Taus v. Loftus (2007) 40 Cal.4th 683, 720.)
30
C. Analysis
The trial court properly denied McCluskey’s motion for
summary judgment and/or adjudication. Put simply, her motion
was inadequate. It did not present undisputed evidence that her
alleged statements about William were either true or privileged.
On appeal, McCluskey directs us to the litigation privilege
(Civ. Code, § 47, subd. (b)). But she fails to demonstrate, let
alone argue, how the challenged statements were made in the
course of a judicial proceeding.
V. Trial
A. McCluskey’s requests for continuances
McCluskey argues that the trial court erroneously denied
her multiple requests for a continuance of trial.
1. Relevant procedural background
On February 26, 2020, the matter was set for trial to begin
on June 7, 2021.
On March 12, 2021, McCluskey filed an ex parte
application for a trial continuance on the grounds that
defendants concealed the identity of at least four witnesses.
Defendants opposed the application. On March 16, 2021, the
trial court denied McCluskey’s request, noting that the
requirements of rule 3.1202(c) had not been met.
On May 19, 2021, McCluskey filed a second ex parte
application to continue the trial. Defendants opposed the
application. On May 21, 2021, the trial court denied her request.
Undeterred, on June 2, 2021, McCluskey filed her third
ex parte application to continue the trial. Defendants again
opposed her request, highlighting the trial court’s repeated
finding of a lack of diligence on the part of McCluskey and her
31
attorney, Mogan. The trial court denied this ex parte application
as well.
The day before trial, McCluskey filed a fourth ex parte
application to continue trial. Defendants seem to have opposed
this request.13 Unsurprisingly, the trial court denied this final
request, reasoning: “The application does not make an
affirmative factual showing of irreparable harm, as required by
California Rules of Court rule 3.1202(c). Additionally, the
application fails to make the disclosures required by rule
3.1202(b).”14
2. Relevant law and standard of review
Continuances of trial in civil cases are disfavored, assigned
trial dates are firm, and parties and their counsel must regard
the trial date as certain. (Rule 3.1332(a), (c).) A party seeking a
continuance must make the request by a noticed motion or an
ex parte application, with supporting declarations, as soon as
reasonably practicable once the need for the continuance is
discovered. (Rule 3.1332(b).) A trial court “may grant a
continuance only on an affirmative showing of good cause
requiring the continuance.” (Rule 3.1332(c).) In ruling on a
13
No written opposition is part of the appellate record, even
though the table of contents indicates that there is one. We were
provided with a declaration from defendants’ counsel, who
explained why defendants objected to a continuance.
14
Rule 3.1202(b) mandates: “If an ex parte application has
been refused in whole or in part, any subsequent application of
the same character or for the same relief, although made upon an
alleged different state of facts, must include a full disclosure of all
previous applications and of the court’s actions.”
32
motion for continuance, the trial court must consider all relevant
facts and circumstances, including the proximity of the trial date;
whether previous continuances were granted; the length of the
requested continuance; prejudice that parties or witnesses will
suffer as a result of a continuance; whether the case is entitled to
preferential trial setting; and whether the interests of justice are
best served by a continuance. (Rule 3.1332(d).)
We review a trial court’s decision denying a request for a
continuance for abuse of discretion. (In re Marriage of Falcone &
Fyke (2008) 164 Cal.App.4th 814, 823.) The party challenging the
denial of a continuance, in this case McCluskey, bears the burden
of showing an abuse of discretion. (Mahoney v. Southland Mental
Health Associates Medical Group (1990) 223 Cal.App.3d 167,
170.)
3. Analysis
McCluskey did not meet her burden on appeal. Other than
using the phrase “abuse of discretion,” she does not offer any sort
of explanatory argument showing that the trial court abused its
discretion.
B. McCluskey’s jury waiver
McCluskey argues that she was wrongfully deprived of a
jury trial.
1. Relevant procedural background
On February 26, 2020, the matter was set for a nonjury
trial to begin on June 7, 2021. The trial court’s minute order
indicates: “No jury fees posted by Plaintiff or Defendant in
compliance with C.C.P. Section 631.” McCluskey did not object.
In fact, on March 6, 2020, she filed and served notice of the trial
court’s ruling, confirming that jury fees had not been posted and
a “Non-Jury Trial” was scheduled.
33
A little over one year later, on March 12, 2021, McCluskey
filed an ex parte application to request a jury trial or grant relief
from a jury waiver. She noted that her second amended
complaint demanded a jury trial. And, she provided evidence
that she had paid the jury fee deposit of $150 on May 24, 2018.
Defendants opposed her application: “The Court ruled over
a year ago that the parties had waived their right to a jury trial
and set this case for a bench trial. Plaintiff did not object to this
determination at the time or at any time since then until now,
less than three months before trial. And Plaintiff does so on an
ex parte basis, giving minimal notice and providing little
opportunity for Defendants to fully respond.”
On March 16, 2021, the trial court denied the application
on the grounds that the requirements of rule 3.1202(c) had not
been met. But, it expressly did so “without prejudice to the
applicant filing a noticed motion.”
On or around June 2, 2021, McCluskey filed another
ex parte application to request a jury trial or grant relief from
jury waiver. Again, defendants opposed her request. The trial
court denied the ex parte application, noting: “The application
does not comply with CRC rule 3.1202(c). Further, the applicant
does not explain [why she did] not file a noticed motion as
suggested in the order on March 16, 2021 . . . .”
2. Standard of review and relevant law
The California Constitution provides that “[t]rial by jury is
an inviolate right and shall be secured to all,” but “[i]n a civil
cause a jury may be waived by the consent of the parties
expressed as prescribed by statute.” (Cal. Const., art. I, § 16.) A
party waives the right to a jury through oral consent or by failing
to announce that a jury is required at the time the cause is set for
34
trial, if it is set upon notice or stipulation, or within five days
after notice of setting if it is set without notice or stipulation.
(§ 631, subds. (f)(3) & (f)(4).) A trial court may refuse a jury trial
where there has been a waiver, and the litigants are not thereby
deprived of any constitutional right. (Still v. Plaza Marina
Commercial Corp. (1971) 21 Cal.App.3d 378, 388.)
If a party has waived the right to a jury trial under section
631, subdivision (g) of that statute gives the trial court discretion
to grant relief from such waiver: “The court may, in its discretion
upon just terms, allow a trial by jury although there may have
been a waiver of a trial by jury.” (§ 631, subd. (g).) “In exercising
its discretion, the trial court may consider delay in rescheduling
jury trial, lack of funds, timeliness of the request and prejudice to
the litigants.” (Gann v. Williams Brothers Realty, Inc. (1991)
231 Cal.App.3d 1698, 1704 (Gann).) Prejudice to the court or its
calendar are also relevant considerations. (Ibid.; see also
Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 104;
Glogau v. Hagan (1951) 107 Cal.App.2d 313, 318, superseded by
statute on other grounds as stated in Silver Organizations, Ltd.
v. Frank (1990) 217 Cal.App.3d 94, 98.)
A trial court’s discretionary decision to grant or deny relief
under section 631, subdivision (g) will not be disturbed absent an
abuse of discretion. (McIntosh v. Bowman (1984) 151 Cal.App.3d
357, 363.) “A court does not abuse its discretion where any
reasonable factors supporting denial of relief can be found even if
a reviewing court, as a question of first impression, might take a
different view.” (Gann, supra, 231 Cal.App.3d at p. 1704.)
3. Analysis
We conclude that the trial court did not abuse its
discretion. McCluskey waited until three months before trial
35
(and a year after the matter was set for a bench trial) before
seeking relief from her alleged jury waiver. Furthermore, her
first ex parte application did not comply with rule 3.1202(c).
And, despite the trial court’s express ruling that McCluskey could
bring a noticed motion, she insisted on proceeding with a second
ex parte application without any explanation.
C. Motion for judgment
McCluskey argues that the trial court erred in granting
defendants’ motion for judgment pursuant to section 631.8. She
does not challenge the evidence. Instead, she argues that the
trial court erred in not making the requisite statutory findings.
1. Relevant procedural background
At the conclusion of McCluskey’s case-in-chief, defendants
moved for judgment pursuant to section 631.8.
The trial court granted their motion. It found, inter alia:
“[I]t is very clear that Airbnb requested some information and
that the defendants responded to that. What they stated, they
were not stating in terms of fact other than filling in details
about what happened. But when it comes to things about Miss
McCluskey, they were not giving statements of fact, it’s very clear
they were giving opinions.” The trial court specifically found that
the evidence presented about the statements that defendants
allegedly made were “not actionable” or “libelous.”
2. Relevant law
If, after the plaintiff in a civil case rests her case-in-chief,
the trial court weighs the plaintiff’s evidence and concludes that
“the plaintiff [has] failed to sustain [her] burden of proof,” the
trial court may “make findings of fact” and “render a judgment”
in favor of the defense. (§ 631.8, subd. (a); People ex rel. Dept. of
36
Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006,
1012; Pettus v. Cole (1996) 49 Cal.App.4th 402, 424.)
3. Analysis
Here, the trial court explained in detail on the record its
reasons for granting defendants’ motion. It even allowed
commentary after the ruling and further explained its reasoning.
McCluskey did not request a written statement of decision.
(§ 632.) Thus, there is no basis to reverse the judgment.
D. McCluskey was not denied a fair opportunity to defend
the allegations against her in the cross-complaint
McCluskey argues that she was denied a fair trial when the
trial court excluded William’s discovery responses and refused to
allow her to cross-examine William “about the extent of his illegal
conduct” or “offer such evidence in support of her affirmative
defenses of truth and substantial truth.”
Put simply, the trial court did not err. William alleged, and
provided supporting evidence at trial, that McCluskey falsely
accused him of being a drug smuggler and part of a drug ring.
After reviewing the entire (voluminous) appellate record as well
as the parties’ briefs, no evidence of a drug ring exists.15
William’s discovery response confirms what has been stated and
15
Mogan’s offer of proof at trial was anything but convincing.
He wanted to ask William about his drug purchases from 2013 to
2016 because that testimony would purportedly show that
William was “part of a drug smuggling ring [for five years].
That’s not someone with a habit, that’s someone—a long-term
vexatious criminal . . . . And, so, it shows the pattern of it wasn’t
just one delivery.” This argument was speculative, nonsensical,
and cumulative as William had already testified to having had a
severe drug addiction at the time.
37
what was proven: William suffered from drug addiction and
illegally purchased drugs to support his addiction. There is no
evidence of an illegal drug smuggling ring. It follows that the
trial court did not err in refusing to allow McCluskey to ask
questions about any such criminal activity.
VI. Posttrial objections and motions
A. McCluskey’s objections to the statement of decision
1. Relevant procedural background
On September 13, 2021, the trial court announced its
tentative decision on the cross-complaint.
On or about September 22, 2021, McCluskey requested a
statement of decision. Her request included 175 specific
questions that she wanted the trial court to address.
On October 28, 2021, the trial court issued its statement of
decision. Regarding McCluskey’s 175 “supposed ‘principal,
controverted issues,’” the trial court found: “A review of the
request shows that [McCluskey] is asking the court to make
written findings of fact and conclusions of law.” Because section
632 does not require written findings of fact and conclusions of
law, the trial court declined to do so. Furthermore, “[o]ther
issues [McCluskey] ask[ed] the court to address involve[d] having
the court evaluate evidence that [was] of no consequence to
determining the defamation cause of action.”
The trial court then turned to the merits of the trial. “In
this trial, the parties have presented two Veronica McCluskeys.
[William] presents the Veronica McCluskey who is vindictive.
This McCluskey goes on the attack when she decides someone
has messed with her money or with the image she has curated for
herself via social media, and she cares not even a little bit about
the damage she causes to others. Cross-defendant presents
38
Veronica McCluskey as someone who was worried that a child
might accidentally ingest drugs the child thought might be candy,
and out of her concern for such a child’s safety, she took her
concerns to the police and to the online rental company. The
evidence admitted at trial reveals which person she has been
here.”
The trial court went on to explain how after their business
relationship ended, McCluskey “launched [a] campaign against
William.” She made false statements to Airbnb in an attempt to
get defendants’ account deactivated. But her plan “backfired.
Instead the company decided to deactivate McCluskey’s account.
Lesson learned? No. McCluskey pressed on,” by continuing to lie
about defendants’ “‘drug smuggling ring.’”
The trial court described McCluskey as not believable. She
lied to Airbnb by informing them that defendants were involved
in a “‘drug ring’” and falsely claiming that packages of drugs were
being delivered to the unit “‘every few days.’” She also lied to the
police, falsely reporting that William wanted her to “ship the pills
to his address in Iowa, and that [William] had a plan for
McCluskey to pick up the pills and send them with her name as
the sender so as not to raise” suspicions. She also falsely
informed the police officer that her lawyer had uncovered a lot of
“‘crazy information’” on William. And, she lied to Airbnb about
William stalking her.
Contrariwise, the trial court found William to be a credible
witness. “He testified that he was not a drug smuggler, had no
interest in running a drug smuggling ring, and was not selling
drugs during the relevant time period. There was no evidence at
trial showing otherwise. [William] admitted that he is recovering
from drug addiction.” His testimony, as well as that of Roxanne,
39
established that “the statements of fact that [McCluskey] made
about him to Airbnb and others were false.”
McCluskey objected to the statement of decision.
2. Applicable law
Section 632 requires a trial court to issue a statement of
decision explaining the factual and legal basis for its decision
upon the request of any party appearing at trial; “written
findings of fact and conclusions of law [are] not . . . required.”
(§ 632.) “In rendering a statement of decision under Code of Civil
Procedure section 632, a trial court is required only to state
ultimate rather than evidentiary facts; only when it fails to make
findings on a material issue which would fairly disclose the trial
court’s determination would reversible error result. [Citations.]
Even then, if the judgment is otherwise supported, the omission
to make such findings is harmless error unless the evidence is
sufficient to sustain a finding in the complaining party’s favor
which would have the effect of countervailing or destroying other
findings. [Citation.]” (Hellman v. La Cumbre Golf & Country
Club (1992) 6 Cal.App.4th 1224, 1230.)
We review McCluskey’s claim of error for abuse of
discretion. (Hernandez v. City of Encinitas (1994) 28 Cal.App.4th
1048, 1077, 1078–1079.)
3. Analysis
After careful review of the trial court’s detailed, lengthy
statement of decision, we conclude that the trial court did not err.
The statement of decision is not ambiguous; rather, it is
straightforward and clear. The trial court did not find
McCluskey believable or sympathetic. And, after accurately
setting forth the elements of defamation, the trial court
summarized the evidence and explained why it supported
40
William’s cause of action. Under these circumstances, “[t]he trial
court was not required to provide specific answers [to
McCluskey’s questions because] the findings in the statement of
decision fairly disclose the court’s determination of all material
issues.” (People v. Casa Blanca Convalescent Homes, Inc. (1984)
159 Cal.App.3d 509, 525.)
B. McCluskey’s motions for new trial
McCluskey argues that the trial court erred by denying her
motion for a new trial on both the complaint and cross-complaint.
1. Relevant procedural background
a. Motion for a new trial on the complaint
As set forth above, following McCluskey’s case-in-chief, the
trial court granted defendants’ motion for judgment pursuant to
section 631.8. Almost immediately thereafter, McCluskey moved
for a new trial. As is relevant to the issues raised in this appeal,
she argued that the trial court committed an error of law, namely
the trial court’s refusal to let her question William about his
criminal activity (illegally buying drugs on the Internet) and drug
trafficking.
Defendants opposed the motion.
The trial court denied McCluskey’s motion, reasoning, inter
alia, that she “was not prejudiced by not being able to ask
[William] questions about his April 2020 discovery responses.”
b. Motion for a new trial on the cross-complaint
Following trial of William’s cross-complaint against
McCluskey, the trial court found in favor of William on his sole
cause of action for defamation. McCluskey promptly filed a
motion for new trial on a host of grounds. William opposed her
motion.
The trial court denied McCluskey’s motion.
41
2. Relevant law and standard of review
Section 657 provides, in relevant part: “The verdict may be
vacated and any other decision may be modified or vacated, in
whole or in part, and a new or further trial granted on all or part
of the issues, on the application of the party aggrieved, for any of
the following causes materially affecting the substantial rights of
such party: [¶] 1. Irregularity in the proceedings of the court
. . . by which either party was prevented from having a fair trial.
[¶] . . . [¶] 4. Newly discovered evidence, material for the party
making the application, which [she] could not, with reasonable
diligence, have discovered and produced at the trial. [¶]
5. Excessive . . . damages. [¶] 6. Insufficiency of the evidence to
justify the verdict or other decision, or the verdict or other
decision is against law. [¶] 7. Error in law, occurring at the trial
and excepted to by the party making the application.” (§ 657.)
A new trial cannot be granted unless the trial court makes
an “independent determination, under article VI, section 13 of
the California Constitution, both that error occurred, and that
the error prevented the complaining party from receiving a fair
trial. [Citation.]” (People v. Ault (2004) 33 Cal.4th 1250, 1262.)
“The denial of a new trial motion is reviewed for an abuse
of discretion, except that a trial court’s factual determinations are
reviewed under the substantial evidence test.” (Minnegren v.
Nozar (2016) 4 Cal.App.5th 500, 514, fn. 7.)
3. Analysis (motion for new trial on complaint)
The trial court did not err in denying McCluskey’s motion
for a new trial on the complaint. Her sole assignment of error is
an alleged error of law (§ 657(7)), namely the trial court’s refusal
to allow her to ask William questions about his discovery
responses, which supposedly demonstrated his participation in a
42
drug trafficking ring. But, as the trial court aptly noted,
McCluskey sought to ask those questions based upon “a lot of
wild guesses” about what William’s illegal drug purchasing
history meant. “We don’t have any experts. No experts in drug
sales, no expert witness on drug smuggling. Really, truly, no
expert witness regarding what a heavy user would or would not
consume. [¶] So, we’re not going to use the trial to just make
wild guesses about what we think just all on our own from what
we may have seen on tv.” Thus, it acted well within its discretion
in denying her request to ask William questions about his
discovery responses.
4. Analysis (motion for new trial on cross-complaint)
Likewise, the trial court did not err in denying McCluskey’s
motion for a new trial on the cross-complaint.
a. Irregular proceedings
As set forth above, the proceedings were not irregular (and
McCluskey’s due process rights were not violated) when the trial
court refused to allow her to ask William about his discovery
responses; those responses do not demonstrate that he was
involved in some sort of drug smuggling or trafficking ring.
(§ 657(1).)
b. Insufficient evidence
Section 657 provides, in relevant part: “A new trial shall
not be granted upon the ground of insufficiency of the evidence to
justify the verdict or other decision, nor upon the ground of
excessive . . . damages, unless after weighing the evidence the
court is convinced from the entire record, including reasonable
inferences therefrom, that the court . . . should have reached a
different verdict or decision.” (§ 657.)
43
There is ample evidence to support the trial court’s
decision.16 (§ 657(6).) As set forth above, William alleged in the
cross-complaint that McCluskey made a host of defamatory
statements about him. The evidence detailed in the trial court’s
statement of decision confirms that he proved all elements of his
claim for defamation. First, there was overwhelming evidence
that the alleged statements were false.17 William testified that
he has never been a drug smuggler, never run a drug ring, and
never sold drugs. The envelope that McCluskey opened was “the
one and only time” he sent drugs to that apartment. And, the e-
mail exchange between McCluskey and Airbnb proves that she
made these statements to someone other than William. (CACI
No. 1704; Medical Marijuana, Inc. v. ProjectCBD.com (2020)
46 Cal.App.5th 869, 884 [“Publication occurs when a defamatory
statement is made to at least one third person”].)
Second, the false statements were not privileged under any
of the theories raised by McCluskey. She claims that her
statements were protected opinion. (GetFugu, Inc. v. Patton
16
To the extent McCluskey asks us to reassess the credibility
of the witnesses, we cannot and will not do so. (Leff v. Gunter
(1983) 33 Cal.3d 508, 518.)
17
It follows that we reject McCluskey’s claim that she proved
the truth or substantial truth of her factual assertions. (See also
McCluskey v. Hendricks, supra, B292470, at p. 25 [“Contrary to
what [McCluskey] argues, her statements were not [substantially
true]. The gist and sting of [McCluskey’s] statements was that
[William] is a sophisticated, for profit criminal who has
dangerous and violent coconspirators who use the apartment as
part of a criminal enterprise. There is a material difference
between this type of criminal and an addict”].)
44
Boggs LLP (2013) 220 Cal.App.4th 141, 155 [statements of
opinion are constitutionally protected].) But, “where an
expression of opinion implies a false assertion of fact, the opinion
can constitute actionable defamation. [Citation.] The critical
question is not whether a statement is fact or opinion, but
‘“whether a reasonable fact finder could conclude the published
statement declares or implies a provably false assertion of fact.”’
[Citation.]” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1370.)
“‘To determine whether a statement is actionable fact or
nonactionable opinion, courts use a totality of the circumstances
test of whether the statement in question communicates or
implies a provably false statement of fact. [Citation.] Under the
totality of the circumstances test, “[f]irst, the language of the
statement is examined. For words to be defamatory, they must
be understood in a defamatory sense. . . . [¶] Next, the context in
which the statement was made must be considered.” [Citation.]’
[Citation.]” (Wong v. Jing, supra, 189 Cal.App.4th at p. 1370.)
After reviewing all of the evidence presented at trial, there
is nothing in the e-mails that suggests McCluskey was offering
her opinion when she repeatedly accused William of being a drug
dealer and trafficker.
Moreover, as the trial court aptly found, there is
insufficient evidence to support the common interest defense.
The common interest applies “[i]n a communication, without
malice, to a person interested therein, (1) by one who is also
interested . . . or (3) by a person who is requested by the person
interested to give the information.” (Civ. Code, § 47, subd. (c).)
Where there is actual malice, the privilege does not apply. In
this context, “malice” is “‘a state of mind arising from hatred or ill
will, evidencing a willingness to vex, annoy or injure another
45
person.’ [Citation.] Malice may also be established by a showing
that the publisher of a defamatory statement lacked reasonable
grounds to believe the statement true and therefore acted with
reckless disregard for [the cross-complainant’s] rights.
[Citations.]” (Cuenca v. Safeway San Francisco Employees Fed.
Credit Union (1986) 180 Cal.App.3d 985, 997.)
The trial court’s finding of malice is well supported by the
appellate record. McCluskey “lacked any reasonable grounds for
believing William . . . was operating a drug ring out of the
. . . rental unit.” Thus, the common interest privilege is
inapplicable.
Finally, the statements had “a natural tendency to injure or
cause special damages.” (Medical Marijuana, Inc. v.
ProjectCBD.com, supra, 46 Cal.App.5th at p. 884.) “False
statements that accuse [a person] of criminal conduct are
defamatory on their face. [Citation.]” (Grenier v. Taylor (2015)
234 Cal.App.4th 471, 486.) As we previously noted, “[a] drug
dealer/drug smuggler running a drug ring is a public scourge who
poses an existential threat to society and earns high levels of
opprobrium.” (McCluskey v. Hendricks, supra, B292470, at
p. 25.) For McCluskey to suggest that her statements did not
have a tendency to injure is ludicrous.
d. Error of law
McCluskey argues that a new trial is warranted because
the trial court committed an error of law. (§ 657(7).) To the
extent McCluskey repeats arguments, we reject them for the
same reasons discussed throughout this opinion. She also asserts
that because William’s cross-complaint did not allege special
damages, the trial court erred in awarding him such damages.
She is mistaken. The cross-complaint alleges special damages.
46
d. New evidence
McCluskey further argues that a new trial should have
been granted based upon new evidence. (§ 657(4).)
“‘“In ruling on a motion for new trial based on newly
discovered evidence, the trial court considers the following
factors: ‘“1. That the evidence, and not merely its materiality, be
newly discovered; 2. That the evidence be not cumulative merely;
3. That it be such as to render a different result probable on a
retrial of the cause; 4. That the party could not with reasonable
diligence have discovered and produced it at the trial; and 5. That
these facts be shown by the best evidence of which the case
admits.”’ [Citations.]” [Citation.] “In addition, ‘the trial court
may consider the credibility as well as materiality of the evidence
in its determination [of] whether introduction of the evidence in a
new trial would render a different result reasonably probable.’
[Citation.]” [Citation.]’ [Citation.]” (Aron v. WIB Holdings
(2018) 21 Cal.App.5th 1069, 1078.)
Quite simply, McCluskey’s appellate briefs fail to discuss
any of these factors. She does not explain why this evidence
could not have been discovered sooner and why it would render a
different decision.
e. Damage award
Finally, McCluskey raises two challenges to the damage
award: (1) She asserts that the damage award is excessive; and
(2) She contends that the judgment is legally erroneous because
the trial court did not adequately explain its damage award.
(§ 657(5) & (6).) We disagree with both arguments.
First, her argument regarding excessive damages
essentially repeats her argument that the damage award is
legally erroneous—she asserts that the cross-complaint “only
47
included a general allegation” of damages and no special
damages. Not so. William’s cross-complaint adequately put
McCluskey on notice of the damages he was seeking for his
defamation cause of action.
Second, under a heading titled “The statements had a
natural tendency to injure and/or caused special damage,” the
trial court explained in detail its damage award. (Bolding
omitted.) In particular, there was evidence of William’s fear
“that people would think he was a drug smuggler. Not only that,
he thought that people would use the information to rob him
because they might think he had drugs or money on him.”
Furthermore, there was evidence that William’s “professional
reputation [had] been damaged.” And, William “suffered
emotional harm. [McCluskey’s] statements about him, though
false, impacted his recovery from drug addiction. He felt
embarrassment, and shame. He wondered if these statements
would stay with him for the rest of his life. The statements put a
strain on his marriage.”
The trial court concluded: “[W]hen the court takes into
consideration the nature, breadth, depth, and the gist and sting
of [McCluskey’s] statements, and also considers how much
[William] had invested in [cultivating] his reputation and career,
the impact on him can be presumed significant. [McCluskey] set
out to take, not just his Airbnb account, but [William] . . . himself
down.” Thus, it awarded him compensatory damages in the
amount of $800,000.
VII. Sanctions award
McCluskey’s counsel, Mogan, challenges a $1,400 sanctions
award issued against him. He argues that sanctions were
inappropriate because “[McCluskey’s motion to compel] was well
48
supported by the law as was the separate statement.”
Furthermore, because Roxanne’s opposition did not specifically
name Mogan in her request for monetary sanctions, the trial
court erred in awarding them.
A. Relevant procedural background
On April 13, 2020, Mogan, on behalf of McCluskey, filed a
motion to compel Roxanne to submit a further response to special
interrogatory No. 15, which requested information regarding
communications between Roxanne and William. Roxanne had
objected and refused to answer pursuant to the marital privilege
(Evid. Code, § 980).
Roxanne opposed the motion and requested monetary
sanctions in the amount of $1,400. The opposition did not specify
whether the monetary sanctions were sought against McCluskey,
Mogan, or both.
Mogan filed a reply brief on McCluskey’s behalf.
Counsel appeared for the hearing via LACourtConnect and
were given a copy of the trial court’s tentative order. The
tentative indicated the trial court’s inclination to deny
McCluskey’s motion and order Mogan to pay monetary sanctions
to Roxanne in the amount of $1,400. After entertaining oral
argument, the trial court adopted its tentative ruling in full.
B. Relevant law and standard of review
“Orders regarding discovery are reviewed under the abuse
of discretion standard. [Citations.] The trial court has broad
discretion in deciding whether to impose sanctions and in setting
the amount of monetary sanctions.” (Cornerstone Realty
Advisors, LLC v. Summit Healthcare REIT, Inc. (2020)
56 Cal.App.5th 771, 789.) The test for abuse of discretion is
traditionally recited as whether the trial court’s decision
49
exceeded the bounds of reason. (Shamblin v. Brattain (1988)
44 Cal.3d 474, 478–479.) The burden of showing such an abuse
rests with the appellant. (Sinaiko Healthcare Consulting, Inc. v.
Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 401.)
C. Analysis
Here, the trial court acted well within its discretion in
imposing monetary sanctions against Mogan. It found that the
discovery motion he filed on McCluskey’s behalf wholly lacked
merit and was unsupported by legal authority. After all,
McCluskey improperly sought a response to an interrogatory that
specifically requested privileged information.
The fact that the opposition did not specifically name
Mogan does not compel reversal of the trial court’s order.18 “‘[A]
party who appears and contests a motion in the court below
cannot object on appeal . . . that he had no notice of the motion or
that the notice was insufficient or defective.’” (Alliance Bank v.
Murray (1984) 161 Cal.App.3d 1, 8.) Ordinarily, such a party “is
deemed to waive the defect or irregularity in the notice.”
(Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333,
342.) “[T]he party’s appearance at the hearing and opposition on
the merits showed that the notice ‘served its purpose,’ . . . and
that any defect in the notice did not prejudice the party’s
18
Our conclusion might have been different had the
opposition indicated that Roxanne was only seeking sanctions
from McCluskey and not her attorney. (Blumenthal v. Superior
Court (1980) 103 Cal.App.3d 317, 318 [sanctions award against
an attorney was set aside because the motion only sought
sanctions against the client; no mention was made of sanctions
against counsel].)
50
preparation for the hearing and opportunity to be heard.” (Id. at
p. 343.)
Here, Mogan had ample opportunity to respond to (and
oppose) Roxanne’s request for monetary sanctions. He scheduled
the hearing and argued the merits of his motion, both in his
moving papers and in his reply brief, as well as at the hearing.
And, prior to the hearing, he received a copy of the trial court’s
tentative ruling, which indicated the trial court’s intention to
impose sanctions against him. But, there is no evidence in the
appellate record that he objected to any sort of sanctions award
being imposed against him personally. Under these
circumstances, we conclude that Mogan’s due process rights were
not violated.
DISPOSITION
The orders and judgment are affirmed. Defendants are
entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
51