Pelz v.
Villeda-Weaver
Filed 12/19/13
Pelz v. Villeda-Weaver CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
CARLOS PELZ,
Plaintiff
and Appellant,
v.
FRANKO VILLEDA-WEAVER, as Personal
Representative, etc., et al.,
Defendants
and Respondents.
B245043
(
Super.
Ct. No. BC456491)
APPEAL from judgments of the
Rico, Judge. Affirmed.
John Elson for Plaintiff and
Appellant.
Kinsella Weitzman Iser Kump & Aldisert, Dale Kinsella and
Jeremiah Reynolds for Defendants and Respondents Franko Villeda-Weaver and
Bell-Phillip Television Productions, Inc.
Kelley Drye & Warren, Keri E. Campbell and Damaris M. Diaz for
Defendants and Respondents CBS Broadcasting Inc. and Jody Lawrence-Miller.
_________________________
Defendant
Ron Weaver was a senior producer for the television show the Bold and the
Beautiful, and he published and distributed a memorandum critical of plaintiff Carlos
Pelz’s job performance as a “key†hair stylist for the television show.
Pelz “has a negative attitude, is perceived as a slacker, and is not carrying
an adequate work load,†and his “hair styling does not match the emotional and
contextual requirements of the script.â€
Pelz filed a defamation action against Weaver, and the production
company that Weaver works for, Bell-Phillip Television Productions, Inc.
(BPP). Based upon information obtained
during discovery, Pelz amended his complaint to name his employer CBS
Broadcasting, Inc. (CBS) and Jody Lawrence-Miller, his supervisor at CBS, alleging
slander arising from Lawrence-Miller’s statements to Weaver regarding Pelz’s
job performance.
The BPP defendants (Weaver and BPP)
and the CBS defendants (Lawrence-Miller and CBS) filed separate
privilege of Civil Code section 47, subdivision (c), applicable to defamatory
statements made without malice to one who is interested, barred this action as
a matter of law. We conclude the BPP
defendants and the CBS defendants met their burden to show the allegedly defamatory
statements were made on a privileged occasion, and Pelz has not raised a
triable issue of fact to show malice to overcome the privilege. Thus, the trial court correctly granted the summary
judgment motions on this ground. Accordingly,
we affirm the judgments.
UNDISPUTED MATERIAL FACTS
1. The
Parties
Pelz was a key
hair stylist for the Bold and the Beautiful (the Show), a television show BPP produced. Weaver was a senior producer at BPP. Rhonda Friedman was a supervising producer,
and she supervised Pelz’s work on the Show.
The Show is filmed on a CBS sound stage.
Pelz was a CBS
employee. CBS provides staff to the Show
and bills BPP for the labor costs. In
1989, CBS assigned Pelz to the Show.
Pelz’s immediate supervisor at CBS was Lawrence-Miller. Lawrence-Miller reported to Harvey Holt, the
vice president of stage operations.
2. Pelz’s
Salary and the Show’s Production Schedule
In 2008, BPP
changed its production schedule to four days per week for approximately 32 weeks
per year. Because Pelz was a CBS
employee, BPP was being billed for his annual salary, amounting to
approximately four or five months when Pelz was not working.
Weaver tried to
reduce the labor costs incurred in paying CBS employee’s salaries while the
Show was on hiatus. A series of e-mails
beginning in January 2008 through June 2009 memorializes his efforts. Weaver’s initial e-mail is an
“putting the CBS staff employees we now cover on a freelance
basis . . . .â€
Weaver questioned whether Pelz and others “[c]ould . . . be
laid off and re-hired as freelance.†In
a subsequent e-mail to Holt, Weaver explained that BPP had “no budget†to pay
Pelz and another hair stylist when the Show was not in production and would no
longer pay their salary. Weaver,
however, suggested Holt come up with a proposal in which BPP might contribute
to Pelz’s salary. Weaver then sent an
e-mail to BPP’s co-owners in which he proposed that the production company temporarily
cover Pelz’s salary to ensure that he remained a CBS employee to keep his health
benefits. Weaver informed Holt that BPP had
agreed to pay Pelz’s salary, at a reduced rate, provided CBS assign Pelz to
other shows while on hiatus to defer the salary costs. Because Pelz was not assigned to other shows,
Weaver’s e-mails state that BPP and CBS agreed to split the cost of Pelz’s
salary during the Show’s hiatus until Pelz became eligible for Medicare
benefits.
3. Pelz’s Performance Issues Addressed in Weaver’s Memorandum
In March 2010, Weaver sent a memorandum to
Holt in which he raised several issues related to Pelz’s poor job performance. Weaver drafted the memorandum after
consulting with Friedman and Lawrence-Miller.
a. March
18, 2010
Memorandum (Allegedly Published March 22)
In a memorandum addressed to
Holt and dated March 18, 2010 (March 18 memorandum), Weaver described
seven issues related to Pelz’s job performance:
(1) “[Pelz] is coasting toward retirement,†and he “has a negative
attitude, is perceived as a slacker, and is not carrying an adequate work
loadâ€; (2) “he often signs out well before the wrapâ€; (3) “[w]hen he does cover
the stage he is often not on stage,†requiring stage managers to track
him down; (4) “[h]e has been told that reading scripts is part of his job,†but
“[o]n many occasions, the hair styling does not match the emotional and
contextual requirements of the scriptâ€; (5) “[m]ost of the women on the show
prefer to have their hair done by others on the staffâ€; (6) “[a]s key, an
essential part of the job is continuity,†and “[w]e’ve been advised that
actresses have been taking their own pictures in order to remember how they’re
supposed to appear when scenes are taped on different daysâ€; and (7) his “work
has a ‘dated’ look.†The March 18 memorandum
asked Holt to replace Pelz as the key hair stylist.
Weaver sent
copies of the March 18 memorandum to Brad Bell, one of BPP’s owners, Friedman,
and Lawrence-Miller.
b. Draft
of Weaver’s March 18 Memorandum
In an e-mail to Bell, Weaver attached
a draft of the March 18 memorandum (hereafter Draft). The e-mail states that Weaver and Friedman
met with Lawrence-Miller to discuss Pelz’s performance. Weaver further states in the e-mail that both
Lawrence-Miller and Holt “concur†that Pelz “needs to go.†Weaver wrote:
“We and CBS have tried to protect him by agreeing to split with CBS his
salary during dark weeks. No good deed
goes unpunished, as they say. He’s
become bitter, is bad for morale, and his work is inadequate.â€
c.
Republication
of the March 18 Memorandum
In October 2010, Weaver sent
the March 18 memorandum to Ed Scott, a newly hired booth producer.
4.
Pelz
Receives the March 18 Memorandum
Pelz was given a
copy of the March 18 memorandum and was counseled to improve his work performance. Upon return from hiatus, Pelz was injured
when he tripped and fell at work. While
he attempted to return after his injury, he has not been able to return to work
and is collecting long-term disability benefits.
PROCEDURAL BACKGROUND
1. The
Third Amended Complaint
Pelz’s third
amended complaint (complaint) for libel and slander is based on Weaver’s March
18th memorandum, Weaver’s e-mail and the attached Draft, and Lawrence-Miller’s
statements to Weaver concerning Pelz’s job performance.
a. Libel
Claims against Weaver and BPP (First, Second, Third Causes of Action)
Pelz alleges
three separate libel claims arising from (1) the March 18 memorandum, (2)
the Draft and e-mail attaching the Draft, and (3) the republication of the
March 18 memorandum. Pelz alleges that
the statements in the March 18 memorandum were false “and were made with
malice, and were understood by all to whom the memo was shown as claims that
plaintiff (a) was lazy, (b) did not care about his work, (c) produced poor
quality work, (d) was incompetent, (e) was unfit to continue to function as the
‘key’ hairstylist [sic] for
should be removed as a hair stylist . . . .â€
Pelz alleged Weaver and BPP published the March 18 memorandum
because they wanted to get rid of him, despite the quality of his work.
In his e-mail
attaching the Draft, Weaver allegedly made false statements that CBS management
agreed that Pelz should be removed from the Show, and falsely claimed that Pelz
“had ‘become bitter, is bad for morale, and his work is inadequate.’ â€
The BPP defendants
raised as an affirmative defense that the challenged communications were
protected by the common-interest privilege.
b. Slander
Claim against Lawrence-Miller and CBS (Fourth Cause of Action)
Pelz repeats the allegations
in the complaint regarding the statements in the March 18 memorandum in his
slander cause of action against Lawrence-Miller and CBS. Pelz further alleged Lawrence-Miller falsely
stated that her statements regarding Pelz’s job performance were reported to
her by other employees.
The CBS
defendants raised the affirmative defense that the challenged communications were
protected by the common-interest privilege, and also asserted that any alleged
statement, if made, was an expression of opinion.
2.
Motions
for Summary Judgment
a.
BPP
Defendants’ Motion Based on the Common-Interest Privilege
The BPP defendants moved for summary judgment on their defense that
Weaver’s communications were privileged under the common-interest privilege of Civil
Code section 47, subdivision (c). The
BPP defendants argued that Weaver was responding to Holt’s request regarding
Pelz’s poor job performance, and the March 18 memorandum and e-mail with the
attached Draft were sent to people who had a common interest in evaluating
Pelz’s performance. In support of the
motion, the BPP defendants presented evidence that Weaver had reasonable grounds
for his belief in the truth of his statements in the March 18 memorandum.
b.
CBS
Defendants’ Motion
The CBS defendants moved for summary
judgment by raising defenses to the slander cause of action, arguing
Lawrence-Miller did not make the comments as alleged in the complaint, and any
criticism she may have communicated to Weaver regarding Pelz’s job performance
was privileged. The CBS defendants also
argued that based upon Jensen v.
Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, an employer’s performance evaluation
of an employee cannot support a cause of action for libel. In support of the motion, the CBS defendants
presented evidence that Lawrence-Miller had reasonable grounds for her belief
in the truth of her statements to Weaver.
3.
Summary
Judgment Motions Granted, Appeal
The
trial court granted the BPP defendants’ and the CBS defendants’ motions for
summary judgment on the ground that the common-interest privilege was a
complete defense to the complaint. Judgments
were entered. Pelz’s motion for new
trial was denied, and he timely filed this appeal.
DISCUSSION
1. Standard of Review
A “party moving for summary judgment
bears the burden of persuasion that there is no triable issue of material fact
and that he is entitled to judgment as a matter of law.†(Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., § 437c,
subd. (c).) A defendant satisfies this
burden by showing that there is a complete defense to the complaint. (Code Civ. Proc., § 437c, subd. (p)(2).)
We independently determine whether,
as a matter of law, summary judgment was properly granted. (Merrill
v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
2. Conditional
Common-Interest Privilege
“Defamation is effected
either by libel or slander.†(
113 Cal.App.4th 1363, 1368.) Libel is a
“false and unprivileged publication by writing . . . which exposes any person
to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or
avoided, or which has a tendency to injure him in his occupation.†(Civ. Code, § 45.) Slander is a “false and unprivileged†oral
communication that “[t]ends directly to injure [a person] in respect to his
office, profession, trade or business . . . .†(Civ. Code, § 46, subd. (3).)
Civil Code section 47, subdivision (c) is a conditional privilege
against defamatory statements made without malice between persons on a matter
of common interest.
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conduct, made without malice to persons who have a common interest or a need to
know as a matter of business necessity are presumptively privileged. (Manguso
v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 580-581;
see also King v. United Parcel Service,
Inc. (2007) 152 Cal.App.4th 426, 440-441 [privilege applies to an
employer’s statements to employees regarding the reasons for terminating
another employee]; Deaile v. General
Telephone Co. of California (1974) 40 Cal.App.3d 841, 845-846, 847 [privilege
applies to statements by management to supervisors who repeated statements to
employee explaining why an employer disciplined an employee].)
Malice is not inferred from the
communication in statements falling within the conditional common-interest
privilege. (Civ. Code, § 48.) “For purposes of this statutory privilege,
malice has been defined as ‘ “a state of mind arising from hatred or ill will,
evidencing a willingness to vex, annoy or injure another person.†’ [Citations.]â€
(Lundquist v. Reusser (1994) 7
Cal.4th 1193, 1204; Brown v. Kelly
Broadcasting Co. (1989) 48 Cal.3d 711, 723; McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th
1510, 1538-1539 & fn. 18.)
A shifting burden generally applies
to establish the common-interest privilege defense. The defendant bears the initial burden of
demonstrating that the allegedly defamatory communication was made upon a
privileged occasion, and the plaintiff then bears the burden of proving the
defendant made the statement with malice.
(Lundquist v. Reusser,
a triable issue of fact exists to show malice to defeat the common-interest
privilege.
3. The Trial Court
Did Not Err in Granting the BPP Defendants’ Motion
a. The
Common-Interest Privilege Applies
Pelz contends summary judgment was
improperly granted because the BPP defendants did not establish that the common-interest
privilege applied to all three libel causes of action alleged in the
complaint. As to the first two causes of
action, Pelz does not dispute that the allegedly defamatory statements in the
March 18 memorandum and Draft, made by Weaver in a memorandum to Pelz’s
employers concerning his performance, were made upon a “privileged occasionâ€
for purposes of the common-interest privilege.
With respect to the third cause of action, alleging republication of the
March 18 memorandum to Scott, Pelz contends it was not made upon a
“privileged occasion,†because Scott was not employed when Weaver circulated
the memorandum.
The circulation of the March 18
memorandum to Scott is a “privileged occasion†for purposes of the
common-interest privilege. (See
Union (1986) 180 Cal.App.3d 985, 995-996
[“[c]ommunications made in a commercial setting relating to the conduct of an
employee have been held to fall squarely within the qualified privilege for
communications to interested personsâ€].)
Scott, as a new booth producer, supervised Pelz. Scott had an interest in Pelz’s past performance
issues, and he was in the best position to observe whether Pelz’s performance
improved. The BPP defendants met their
burden.
b. Pelz Did Not Meet
His Burden to Raise a Triable Issue of Fact
Pelz raises several arguments to contend
he has presented sufficient evidence to raise a triable issue of fact that
Weaver acted with malice in publishing the March 18 memorandum, publishing
the e-mail with the attached Draft, and republishing the March 18
memorandum to Scott. None of Pelz’s
arguments has merit.
(1). The Primary Motivation for the March 18 Memorandum
Pelz contends he “alleged in some
detail malice sufficient to prevent the common interest privilege from even
arising,†that is, “Weaver wanted to get rid of Pelz to avoid paying his salary
expense during hiatuses which CBS would charge back to Bell-Phillip.†Stated another way, Pelz argues Weaver was
motivated not for purposes of chronicling Pelz’s poor performance, but for an
economic purpose, which to be actionable would have to fall into the category
of hatred or ill will for the purpose of injuring Pelz. (See Lundquist
v. Reusser, supra, 7 Cal.4th at
p. 1206, fn. 12 [“ ‘Conditionally privileged occasions are created in
order to permit the publisher of the defamation to protect the interest which
is entitled to protection. . . . [W]here the primary
purpose is another purpose, e.g., a desire to injure the defamed person, this
is an abuse of the occasion and no privilege comes into being.’ â€].)
The state-of-mind Pelz attributes to
Weaver is not supported by the undisputed facts and the reasonable inferences
drawn from these undisputed facts. Pelz
was not a BPP employee, so BPP did not need a pretext to remove him from the Show. It is undisputed that by the terms of the
agreement with CBS, BPP did not have to use Pelz’s services. Pelz would receive his salary even if he did
not work on the Show. Thus, Pelz’s
belief that Weaver had an improper motive for writing the March 18 memorandum
is mere speculation and conjecture, which is legally insufficient to defeat a
summary judgment motion. (See
Because Pelz has no evidence of an
improper motive, this case is distinguishable from Cloud v. Casey (1999) 76 Cal.App.4th 895, a case Pelz relies on to
show Weaver’s March 18 memorandum identifying performance issues was a
pretext to remove him from the Show. In
a promotion because she purportedly lacked operational experience, but the jury
also heard evidence that the operational criterion was developed after the
successful candidate obtained the position.
(Id. at pp. 900, 912.) “From this [evidence] the jury could conclude
that operational experience was not a real requirement for the position, but a
pretext utilized by the corporations to explain away its gender-based
decision.†(Id. at p. 912.) Here, unlike
Cloud v. Casey, where the
decisionmaker attempted to hide the unlawful basis with a false explanation, no
unlawful or unprivileged motive can be inferred from the March 18
memorandum. Moreover, unlike Cloud, Pelz
suffered no adverse employment action – he was not replaced on the Show, and he
remained a CBS employee.
(2). Reasonable
Grounds for Belief
Pelz next contends that Weaver had no
reasonable grounds to believe the statements in the March 18 memorandum, citing
to contradictory evidence. This misses
the point. The BPP defendants presented
evidence that Weaver had a reasonable belief the statements in the March 18
memorandum were true following his meeting and discussions with Pelz’s
supervisors. While Pelz may disagree
with the issues raised in the March 18 memorandum, or present evidence to
suggest that the criticism was not justified, this is not the relevant question
in the context of libel. “For purposes
of establishing a triable issue of malice, ‘the issue is not the truth or
falsity of the statements but whether they were made recklessly without
reasonable belief in their truth.’ â€
(McGrory v. Applied Signal Technology,
Inc., supra, 212 Cal.App.4th at
p. 1540.)
Pelz counters that there was no
reasonable basis for Weaver’s belief that Pelz’s performance was lacking because
during this time period, he won back-to-back Emmy awards for hair styling. This evidence is undisputed, but it does not
raise a triable issue of fact that Weaver lacked a reasonable belief in the
statements made in the March 18 memorandum. Many of the points raised in the March 18
memorandum addressed performance issues unrelated to hair styling. Pelz has presented no evidence giving rise to
a reasonable inference that Weaver wrote the March 18 memorandum without a
reasonable belief in the content.
(3). Weaver’s
Alleged Falsehoods
Pelz also contends there is a
triable issue of fact that Weaver acted with malice in drafting the March 18
memorandum because Weaver (1) falsely claimed in verified interrogatory
responses that he had spoken to Laura Yale, a stage manager, and Christine
Lai-Johnson, a CBS employee and make-up artist on the Show, regarding Pelz’s job
performance, and (2) falsely stated in his e-mail attaching the Draft that both
Lawrence-Miller and Holt agreed that Pelz “needs to go.â€
Weaver’s discovery response
regarding Yale and Lai-Johnson was amended to correct the mistake. Weaver amended his response to state that
“[s]ome of the assertions in the memorandum may have been communicated to Jody
Lawrence or Rhonda Friedman by Laura Yale, Stage Manager, employed by CBS, and
Christine Lai-Johnson, employed by CBS and other employees of CBS and
Bell-Phillip.†At most, Weaver’s earlier
and mistaken response was mere negligence.
As noted, the malice standard, not negligence, governs whether the
common-interest privilege applies. (See
113 Cal.App.4th at pp. 1370-1372.)
To further support the point that
Weaver’s discovery response shows he lacks credibility, Pelz relies on
Cal.App.4th 1832, a dog-attack case, arguing evidence of a witness’s “falsehood
creates a triable issue as to any fact to be proved by the testimony of that
witness.†(Capitalization omitted.) Donchin
held that a false exculpatory statement of the landlord’s lack of knowledge of
the dogs’ existence at the premises is evidence of a guilty conscience. (Id.
at p. 1841.)
In Donchin, the landlord initially denied, but later admitted that he
knew the dogs lived on the rental property.
(Donchin v. Guerrero,
“false exculpatory statement,†was evidence attempting to show he had no
liability. A false exculpatory statement
is “evidence of a declarant’s state of mind and demonstrates his knowledge he
has committed a wrong.†(
other evidence concerning the dogs’ behavior, a trier of fact could infer that
when the landlord lied about knowing that the dogs were living at the property,
his denial may be used to infer that the landlord had a guilty conscience about
the dogs’ dangerous propensities. (
Donchin
does not apply here because Weaver’s initial interrogatory response is not a
false exculpatory statement, tending to show a guilty conscience. Whether Weaver did or did not talk to Yale or
Lai-Johnson has no bearing on proving or disproving malice. Weaver’s initial interrogatory response,
followed by his amended response does not lead to an inference that the
statements in the March 18 memorandum were recklessly made without reasonable
belief in their truth.
As for Weaver’s statement about Pelz,
Weaver testified that he could not recall whether either Lawrence-Miller or
Holt told him that Pelz “needs to go,†but Weaver formed that opinion. Weaver testified: “Jody Lawrence had . . . told
us, Rhonda and me, in the meeting, that she had spoken with Carlos [Pelz] about
many of these issues many times . . . and that was my
speculation, that, you know . . . there had been no
change . . . in many of these issues, and . . . it
was my speculation that it was time for him to – to be done.†This testimony (and the other testimony cited
on this point) does not raise a triable issue of fact as to whether Weaver
acted with malice. Weaver’s speculation and
opinion was reasonably based upon his conversations with Pelz’s
supervisors. (See Noel v. Rivers Hills Wilsons, Inc., supra, 113 Cal.App.4th at p. 1371.)
(4). Exaggerated
Tone of the March 18 Memorandum
Finally, Pelz contends Weaver’s exaggerations
and tone in the March 18 memorandum raise a triable issue of fact as to the
existence of malice. In support of this
contention, Pelz principally relies on Brewer
v. Second Baptist
although malice may not be inferred from communicating a defamatory statement,
the tenor of the defamatory statement may be evidence of malice. (Id.
at p. 799.) In Brewer, the church’s charges to expel the plaintiffs after they had
joined a lawsuit against the church were designed to injure their reputation in
the church and to cause them to be shunned and avoided. (Id.
at p. 796.) The plaintiffs were charged
with “having ‘revealed themselves as totally unworthy of the continued
confidence, respect, and fellowship of a great church,’ †and “willing to
lie in order to injure their church.†(
“vile spirit,†and both were associated with one who “ ‘under the role of
a minister of Jesus, is one of Satan’s choicest tools.’ †(Ibid.)
The tenor of the March 18 memorandum
addressing Pelz’s poor job performance is quite different from the church’s
charges in the Brewer case. Pelz quotes the following statements that
undercut his reliance on Brewer: (1) “When he does cover the stage he is often
not on stageâ€; (2) “[m]ost of the women on the show prefer to have their
hair done by others on the staffâ€; and (3) “[a]s key, an essential part of the
job is continuity.†Pelz claims these statements
are untrue and contradicted, but unlike charges of a “vile spirit,†and a
“liar,†no inference can be drawn from the tenor of the March 18 memorandum to
create a triable issue of fact as to malice.
Because Pelz did not raise a triable
issue of fact to show the existence of malice, the BPP defendants established
the common-interest privilege was a complete defense to the complaint. Accordingly, summary judgment was properly
granted.
4. The Trial Court
Did Not Err in Granting the CBS Defendants’ Motion
The slander action against the CBS defendants
is based upon Weaver’s and Friedman’s testimony that Lawrence-Miller made
comments regarding Pelz’s job performance. There is no dispute that Lawrence-Miller’s
communications fall within the common-interest privilege.
v. United Parcel Service, Inc., supra,
152 Cal.App.4th at p. 440.)
a. Russell v. Geis Does
Not Defeat the Common-Interest Privilege
Citing Russell v. Geis (1967) 251 Cal.App.2d 560, Pelz contends that the CBS
defendants are precluded as a matter of law from raising the common-interest
privilege defense because Lawrence-Miller did not believe the statements
attributed to her were actually true. In
Russell v. Geis, the court held that
when a defendant testified that he did not believe the allegedly defamatory
statement to be true, he may not assert the privilege. (Id.
at pp. 566-567.) “[T]he reason for the
rule is that ‘there is no social advantage in the publication of a deliberate
lie, the privilege is lost if the defendant does not believe what he
says.’ †(Id. at p. 566.)
While Pelz argues that
Lawrence-Miller denied making the statements in the March 18 memorandum or
believing the statements to be true, his focus is on Lawrence-Miller’s
responses to deposition questions in which she was asked whether she used the specific
phrases in the March 18 memorandum. Lawrence-Miller
did not draft the March 18 memorandum, nor does the memorandum
specifically attribute verbatim any of these statements to
Lawrence-Miller. It is undisputed that
Lawrence-Miller had criticisms concerning Pelz’s performance and discussed some
of her concerns about Pelz with Weaver.
knowledge, there was nothing false or incorrect in the March 18
memorandum. For these reasons,
b. Pelz Did Not Meet
His Burden to Establish a Triable Issue of Fact
Pelz raises several arguments to
contend he has presented sufficient evidence to raise a triable issue of fact
that Lawrence-Miller acted with malice when she discussed Pelz’s performance
issues with Weaver. None has merit.
(1). The
Primary Motivation for Lawrence-Miller’s Comments
Pelz contends that like Weaver,
Lawrence-Miller’s comments were not motivated for the purpose of discussing Pelz’s
job performance but to punish him because he declined her request to answer her
phone during the Show’s hiatus. The
cited evidence does not support this contention. Pelz testified that Lawrence-Miller was upset
with him, but he did not know why, stating “that’s the only thing I can think
of.†Pelz’s suspicions of improper
motives primarily based upon conjecture and speculation are not sufficient to
raise a triable issue of fact.
(2).
Pelz
next contends Lawrence-Miller had no reasonable grounds for her criticism of
his performance because during this period he won back-to-back Emmy awards. Lawrence-Miller testified that (1) Pelz was not
handling his responsibilities as key hair stylist; (2) he left early, which was
inconsistent with his role as a key hair stylist; (3) she received complaints
that he could not be located, which caused problems on the set; (4) other
hair stylists told her that Pelz was not carrying his fair share of the work
load; and (5) the Show’s actresses preferred to have their hair done by other
stylists. Lawrence-Miller’s concerns about
Pelz’s job performance were either based on her own personal observations or
were reported to her by other CBS employees working on the Show. Pelz has presented contradictory evidence,
including his Emmy awards, to show these criticisms were unfounded or false,
but for purposes of establishing malice, the issue is whether the statements
were made recklessly without reasonable belief in their truth. (McGrory
v. Applied Signal Technology, Inc., supra,
212 Cal.App.4th at p. 1540.) Pelz has
not met his burden to raise a triable issue of fact.
(3). Lawrence-Miller’s
Falsehoods
Pelz also contends he has
established a triable issue of fact as to the existence of malice because Lawrence-Miller
made false statements (1) denying the comments attributed to her by Friedman
and Weaver, and (2) denying meeting with Weaver to discuss Pelz’s performance
issues.
First, Pelz’s numerous citations to
the record do not support his contention that Lawrence-Miller categorically
denied she had discussed Pelz’s performance issues with Weaver, or she did not
believe the content of the March 18 memorandum.
Lawrence-Miller denied making or believing Weaver’s statement in his
e-mail to Bell that Pelz had “become bitter, is bad for morale, and his work is
inadequate.†This statement was Weaver’s
opinion and was not attributed to Lawrence-Miller. As to the contents of the March 18
memorandum, Lawrence-Miller denied making certain statements as phrased and
denied using certain phrases to describe her concerns regarding Pelz’s
performance, but she did not deny the truth of statements made in Weaver’s March
18 memorandum. As previously noted, many
of Lawrence-Miller’s concerns regarding Pelz’s performance were points Weaver
raised in the March 18 memorandum.
Second, Lawrence-Miller does not
remember having a person-to-person meeting with Weaver and Friedman. The place of the discussion or whether
Friedman was present is not a material fact tending to raise a triable issue as
to the existence of malice.
(4). False
Exculpatory Statement
Citing Donchin v. Guerrero, supra,
34 Cal.App.4th 1832, Pelz contends Lawrence-Miller’s deposition testimony
creates a triable issue of fact as to her credibility because she denied
“having made the accusations, thinking they were true, or even hearing of them
from others which Friedman testified came from Lawrence-Miller.†What Friedman testified to or attributed to
Lawrence-Miller is not relevant to the Donchin
analysis as to Lawrence-Miller’s liability.
Because
Pelz did not raise a triable issue of fact to show the existence of malice, the
CBS defendants established the defense of the common-interest privilege. Accordingly, summary judgment was properly
granted.
DISPOSITION
The judgments are
affirmed. The parties are to bear their
own costs on appeal.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING, J.
Weaver is deceased, and Franko Villeda-Weaver, the personal representative of
the estate of Ron Weaver, has been substituted in as a party to this action.
March 18 memorandum further states: “If
we do not see a complete turnaround in attitude, work habits, and the quality
of his work sufficient to ensure that he is carrying a reasonable share of the
workload of the department, we request that he be removed from the show.â€
