Viswanathan v. Leland Stanford Jr.
University
Filed 8/24/12 Viswanathan v. Leland Stanford Jr. University
CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
USHA VISWANATHAN,
Plaintiff and
Appellant,
v.
LELAND STANFORD JR. UNIVERSITY,
et. al.,
Defendants and
Respondents.
H036960, H037048
(Santa Clara
County
Super. Ct. No. 110CV167671)
In this appeal,
plaintiff Usha Viswanathan challenges an order granting summary judgment to
Leland Stanford Jr. University, Stanford
Law School,
and one of the law school's professors, Robert Weisberg. Plaintiff contends that defendants failed to
meet their burden to show entitlement to judgment as a matter of law on her
claims of libel, slander, and negligent supervision and training. We agree with
the superior court, however, that defendants met their burden and that
plaintiff failed to raise a triable issue
of fact material to these causes of action. We must therefore affirm the
judgment and the subsequent order awarding costs to defendants.
Background
Plaintiff
graduated from Stanford Law
School in June 1994.
against Stanford University
and the director of Career Services at the law school.
plaintiff came to the conclusion that defendant Weisberg, a professor at the
law school and, she believed, a supervisor of the Career Services director,
was hostile toward her. While visiting
the law school she saw Weisberg and thought that he gave her a "very
hostile look." She also began
receiving what she experienced as "harassing" calls informing her
that she was in default on her student loan accounts and
"threatening" to report her to a credit reporting agency and the
Franchise Tax Board.
In December
2003 plaintiff requested an investigation to determine whether Stanford and
Weisberg were disseminating "negative information" about her, thus
preventing her from finding employment with a law firm. Between late November and early December 2004
she received " 'hang-up' calls" that appeared to originate from
Stanford phone numbers.
In April of
2006 she believed that she was being monitored by Weisberg and "a student
or two" while she was doing research in the law school library. In May plaintiff communicated her
"fears" about Weisberg's library behavior to an Emeritus law
professor, Marc Franklin. Three or four
more hang-up phone calls occurred between May and June of 2006, but after two
"suspicious calls" in early June, they stopped for the rest of the
year.
On June 6,
2006 plaintiff applied for a temporary
restraining order (TRO) against Weisberg "for monitoring [her] and for
telephone harassment." The TRO was
denied for insufficient proof in July 2006.
angry look" from Weisberg when she was at the law school library, and for
a few days thereafter she again received phone calls in the middle of the
night. After she complained to the
chairman of the board of trustees, the calls stopped.
Worried
that Weisberg would interfere with her work at a law firm with which she had
obtained employment, plaintiff "secretly communicated" with Franklin
and visited his residence "several times" to solicit help. In December 2008, however, she was informed
by the security guard that a memorandum and picture had been circulated about
her to bar her from Franklin's residence.
Plaintiff
was laid off from the law firm in December 2008. After that she was unable to find work at any
other law firm even after distributing dozens of resumes. Plaintiff believed that Weisberg "and
others in concert with him at Stanford [were] continuing to blacklist
[her]." The "harassing phone
calls" periodically resumed, "typically after [she] complained to
some Stanford authority about Prof. Weisberg."
On March 3,
2009, plaintiff was in the women's bathroom at the law school when she
overheard a conversation between two women.
One of them asked the other whether she had seen "that Indian
woman" and said, " 'They say she is a stalker' and 'going after
a Stanford professor.' "
In October
2009, shortly before her 15th law school reunion, plaintiff received an
anonymous letter containing the following message: "We all knew a few months back from
Prof. Weisberg that you are a stalker.
Why don't you leave? Prof.
Weisberg will make sure that any employer in the Bay Area who hires you knows
that you are a stalker so why dont [sic]
you go?" The letter was not signed,
and plaintiff's only hint about where it originated was the envelope, which
bore a return address of "SLS" (which plaintiff understood to mean
Stanford Law School) at a post office box in Stanford, California.
Plaintiff
was "extremely upset" by the letter and contacted both the Department
of Fair Employment and Housing (DFEH) and the General Counsel for the
university. Plaintiff also arranged an
interview with an attorney, Kit Knudsen, in which she pretended to be an
applicant for a job so that she could determine whether he would receive
negative information about her.
name="_ftnref7" title="">[7] She requested that the law school send her
transcript to Knudsen, and he received it on November 3, 2009. Six days later, Knudsen received a voice mail
message stating the following:
"Hello. We are aware that
you interviewed Ms. Vishwanathan for a position with your firm. As concerned citizens of the Stanford community
we feel that you ought to know that she is a dangerous personality. She has caused a lot of trouble for
professors and companies in the past.
She even stalked a Stanford [p]rofessor as well. We strongly urge you to reconsider any
decision to hire her. Thank you."
Plaintiff
filed this action against Stanford and Weisberg on November 19, 2009 in the
superior court for San Mateo County. The
court granted defendants' motion for change of venue and the matter was
thereafter heard in Santa Clara County.
Two amendments followed, culminating in the current pleading, the second
amended complaint, filed on August 23, 2010.
On April 6,
2011, the court granted defendants' motion for summary judgment and entered
judgment for all defendants on April 28, 2011.
On May 23, 2011, the court denied plaintiff's motion for a new trial,
and two days later plaintiff filed her notice of appeal.
Discussion
1. Appealability
As a
preliminary matter, we note that plaintiff purported to appeal from a
"judgment granting summary judgment" on April 6, 2011. The April 6, 2011 ruling granting the summary
judgment motion, however, is not an appealable order. The judgment was entered April 28, 2011. Nevertheless, because a judgment was
eventually filed, we will once again exercise our discretion to construe
plaintiff's notice of appeal as pertaining to that April 28 judgment.
2. Standard and Scope of Review
The parties
are familiar with the applicable principles of summary judgment review. Summary
judgment is properly 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." (Code Civ. Proc., § 437c, subd. (c).) "There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof." (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
A defendant
who moves for summary judgment bears the initial burden to show that the action
has no merit--that is, for each cause of action one or more elements
"cannot be established, or that there is a complete defense to that cause
of action." (Code Civ. Proc., §
437c, subds. (o), (p)(2); Aguilar, supra,
25 Cal.4th at p. 850; Truong v. Glasser
(2009) 181 Cal.App.4th 102, 109.) When
the burden of proof at trial will be on the plaintiff by a preponderance of the
evidence, the moving defendant "must present evidence that would preclude
a reasonable trier of fact from finding that it was more likely than not that
the material fact was true [citation], or the defendant must establish that an
element of the claim cannot be established, by presenting evidence that the
plaintiff 'does not possess and cannot reasonably obtain, needed evidence'
" to support a necessary element of the cause of action. (Kahn
v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, quoting
Cal.4th 317, 334.)
If the
moving defendant makes that showing, the burden then shifts to the plaintiff to
make a prima facie showing that there exists a triable issue of material
fact. (Aguilar, supra, 25 Cal.4th at p. 850.) "The plaintiff . . . may not rely upon
the mere allegations or denials of its pleadings to show that a triable issue
of material fact exists, but, instead, shall set forth the specific facts showing
that a triable issue of material fact exists as to that cause of action . . .
." (Code Civ. Proc., § 437c, subd.
(p)(2).)
On appeal,
we conduct a de novo review of the record to "determine with respect to
each cause of action whether the defendant seeking summary judgment has
conclusively negated a necessary element of the plaintiff's case, or has
demonstrated that under no hypothesis is there a material issue of fact that
requires the process of trial, such that the defendant is entitled to judgment
as a matter of law." (Guz v.
Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Daly v. Yessne (2005) 131 Cal.App.4th 52, 58.) We apply the same procedure used by the trial
court: We examine the pleadings to
ascertain the elements of the plaintiff's claim; the moving papers to determine
whether the defendant has established facts justifying judgment in its favor;
and, if the defendant did meet this burden, plaintiff's opposition to decide
whether he or she has demonstrated the existence of a triable issue of material
fact. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85;
(1995) 35 Cal.App.4th 880, 887.)
3. Plaintiff's Allegations
Because it
is the operative pleadings that define the issues presented in a summary
judgment proceeding, we first examine the allegations of the second amended
complaint. Plaintiff asserted six causes
of action in that document: libel per
se, slander per se, defamation per quod, invasion of privacy by placing her in
a false light, violation of the Unruh Civil Rights Act (Civ. Code, § 51),
and negligent supervision and training.
The last two claims were against Stanford only.
Civil Code
section 45 defines libel as "a false and unprivileged publication by
writing, printing, picture, effigy, or other fixed representation to the eye,
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." "To prevail
on a claim for libel, plaintiff must show four elements: that defendants published the statements; the
statements were about plaintiff; that they were false; and that defendants
failed to use reasonable care to determine the truth or falsity. (CACI 1704.)" (Grewal
v. Jammu (2011) 191 Cal.App.4th 977, 990.)
Libel on
its face, or libel per se, is "defamatory of the plaintiff without the
necessity of explanatory matter, such as an inducement, innuendo or other
extrinsic fact. . . ."
(Civ. Code, § 45a.) The defamatory
nature of the defendant's allegations would be "immediately apparent to
any reader" who did not know any facts outside the face of the
complaint. (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1442.) Thus, a statement may be found to be libelous
per se "if it contains a charge by implication from the language employed
by the speaker and a listener could understand the defamatory meaning without
the necessity of knowing extrinsic explanatory matter. [Citation.] However, if
the listener would not recognize the defamatory meaning without 'knowledge of
specific facts and circumstances, extrinsic to the publication, which are not
matters of common knowledge rationally attributable to all reasonable
persons' [citation], the matter is
deemed defamatory per quod and requires pleading and proof of special
damages." (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112;
see also Wong v. Tai Jing (2010) 189
Cal.App.4th 1354, 1369.) "Whether a
statement can reasonably be given any defamatory interpretation is a legal
question that we must resolve by determining the sense or meaning of the
statements, under all the circumstances attending the publication, according to
the natural and popular construction which would be ascribed to them by the
average reader." (
(1999) 73 Cal.App.4th 1, 5-6.)
Plaintiff
based her libel claim on the anonymous letter she received in mid-October
2009. She characterized the letter as
libelous per se because it implied that she had been accused of the crime of
stalking and the crime of threatening physical violence against another
person. Plaintiff added that she was
"compelled to republish this letter to others"—to Stanford, to the
Department of Fair Employment and Housing (DFEH), and to "a law
firm"—in order to investigate the source of the letter, file a claim under
the Fair Employment and Housing Act (FEHA), and determine whether defendants
had interfered with her employment prospects.
Plaintiff's
second cause of action alleged slander per se.
Slander is defined in Civil Code section 46 to include "a false and
unprivileged publication, orally uttered" to a third person, and which
accuses the speaker's target of a crime, reports him or her as having a
contagious or "loathsome" disease, or injures him or her
professionally. "Words [that] fall
within the purview of Civil Code section 46 are deemed to constitute slander
per se [citations] with the effect that
the utterance of such words is actionable without proof of special
damage." (Albertini v. Schaefer
(1979) 97 Cal.App.3d 822, 829.)
Plaintiff's
allegation pertained to the voice mail Knudsen received on November 9, 2009,
"a few days" after she submitted her request for a transcript to be
sent to Knudsen. Plaintiff alleged that
all of the defendants "participated in the preparation" of this
message.
Along with
the voice mail, the second cause of action described the incident in March
2009, in which "one woman informed another woman in a [law school]
bathroom, which Plaintiff inadvertently overheard, that Plaintiff was a
'stalker' and 'going after a Stanford professor . . . .' "
According
to plaintiff, these defamatory statements, which could reasonably be understood
to accuse her of the crime of stalking, were made "with malice and with
the intent to injure Plaintiff's good name and reputation and to interfere with
her employment, and her standing among the members of the University and the
legal profession." The effect of
these "aspersions" was to injure plaintiff in her occupation "in
that plaintiff has not been able to find employment in law for eight of the
past nine years."
In the third cause of action for defamation
per quod, plaintiff again accused defendants of participating in the
preparation of the letter to her and the voice mail to Knudsen. She also held defendants responsible for the
conversation between the two women in the law school bathroom. In addition, plaintiff alleged that
defendants had "colluded with" the partner of the retired Stanford
professor, Marc Franklin, to prepare and circulate a memorandum and picture of
plaintiff in order "to falsely characterize Plaintiff as a 'dangerous'
individual." Plaintiff believed
that defendants and Franklin's partner made it appear that she was a violent
person "and that the retired professor should be concerned for his
well-being and safety." In her
view, the memorandum and picture were circulated "in retaliation for
Plaintiff['s] having filed, among other things, a TRO application against
W[eisberg] in 2006." Plaintiff further
believed that in addition to the conduct she had identified, defendants had
made "similar statements to law firm[s] and other potential employers from
2001 to the present in an effort to retaliate against Plaintiff and waylay her
career in law" because she had filed a lawsuit against the university and
the law school as well as the TRO application against Weisberg. Consequently, she lost $1.5 million in
potential earnings by being rejected for full-time employment as an attorney
during eight of the preceding nine years.
The fourth
cause of action reiterated the facts alleged in the previous paragraphs and
characterized them as casting her in a false light, with defendants' knowledge
that their defamatory statements would cast her in a false light and discourage
employers from hiring her; alternatively, defendants "acted with reckless
disregard for the truth" and "failed to use reasonable care to
determine the truth or falsity of the said statements or whether a false
impression would be created by the publication of such statements."
The fifth
cause of action depended on the application of Civil Code sections 51 and 52.
Act, requires "full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every kind
whatsoever." Plaintiff alleged that
Stanford had " 'aided and abetted' law firms to discriminate against
Indian females for employment from 2001 to the present by disparaging Plaintiff
and her abilities and character to these law firms and other employers because
she is an Indian woman," and by "spreading false and unwarranted
rumors" about her to these law firms, including suggestions that she was a
stalker. Plaintiff further alleged the
following conduct, all based on her status as an Indian woman: (1) "harassing" her about repayment
of her student loans and failing to investigate this "interference"
in her financial affairs; (2) failing to provide information to potential
employers and reference checkers about her attendance and graduation from the
law school; (3) monitoring and suppressing her email to prevent her from
contacting a retired professor to ask for his assistance in investigating the
rumors that she was a "stalker"; (4) failing to investigate her
claims of discrimination in referrals and hiring; and (5) failing to
investigate hang-up calls from numbers associated with Stanford and monitoring
"by Weisberg and/or his associates" whenever she was on campus,
leading to her unsuccessful application for a TRO against him.
Finally, in
her sixth cause of action for negligent supervision and training, plaintiff
alleged that Stanford had breached its duty to ensure that professors at the
law school "would not harass or disparage former students such as herself
[sic]." Instead, Stanford failed to investigate or
discipline Weisberg and others for their "outrageous behavior"
against her -- namely, "the negative rumors, unwarranted and repeated
phone calls, monitoring behavior and interference with Plaintiff's career and
financial affairs, among other things, that she believed W[eisberg] and others
were conducting against her."
4. Defendants' Showing
The essence
of defendants' motion was that even after nearly a year of discovery, plaintiff would not be able to prove any of
her claims. Instead, defendants argued,
she was proceeding on nothing more than suspicion, speculation, and
imagination. Defendants focused on each
event described in plaintiff's second amended complaint, asserting that plaintiff
had admitted she had no evidence of a "causal link between them and
the . . . incidents that supposedly harmed [p]laintiff."
v. Standard Cabinet Works, et. al. (1967) 249 Cal.App.2d 64, 69, defendants
argued that compelling them to go to trial in these circumstances
" 'would not only subject the defendant[s] to the wildest speculation
. . . but . . . distort the basic principle [that] requires a
plaintiff to establish liability by a preponderance of the evidence.' "
In support
of the motion defendants offered a December 2010 declaration by Weisberg and
deposition testimony by plaintiff.
Weisberg stated that he did not recall plaintiff's having been in one of
his classes before her graduation in 1994.
He did not remember even meeting her until July 2006, at the hearing on
plaintiff's application for a TRO against him.
He knew nothing about the "bathroom incident" in which
plaintiff overheard two women apparently discussing her; he knew nothing about
the anonymous letter calling her a stalker; he was unaware of the voice mail
message to Knudsen until he received plaintiff's complaint; and he knew nothing
about the alleged memorandum and photo describing her as a dangerous
person. Weisberg further stated that he
had never monitored or asked anyone to monitor plaintiff in the library, as she
had alleged in the complaint; indeed, except for the TRO proceeding, he had
never had any contact with plaintiff
or her family members, nor had he ever described her as a dangerous or violent
person to anyone or asked anyone to provide negative information about her.
Weisberg's extensive statement
addressed each of the material allegations against him. Clearly his declaration supplied admissible
evidence establishing not only that he knew nothing about any of the acts she
attributed to him, but also that he had never had any contact with plaintiff
after her graduation except when she unsuccessfully sought a TRO against him in
2006. Plaintiff offered no evidence
raising even a marginally triable issue of fact with respect to Weisberg's
involvement. For example, in her
responsive statement of undisputed facts she asserted that the content of the
letter and the mention of Weisberg's name were sufficient to implicate
him. Her declaration did not contradict
Weisberg's statement that he could not recall having her in his class or even
meeting her before the TRO hearing. The
apparent basis for believing he had something against her was that she had
heard that he was a supervisor of the former director of Career Services, who
was one of the defendants in her 1997-2001 lawsuit against Stanford. Shortly after she settled that action she saw
Weisberg in the library, and he gave her a "very hostile look." In April 2006 she saw him again in the
library; he "loitered" near her cubicle and "posted"
students close by to monitor her.
These
perceptions and the discomfort she experienced in 2006 did not serve as
evidence that Weisberg had disseminated pejorative information about her to
others. In her deposition she based her
accusations against him on his presumed motive to retaliate against her for
filing the TRO application against him, her belief that he was a
"vengeful" person, the "curiosity of [the] timing," the
content of the voice mail invoking his name, and the numerous rejection letters
she had received from law firms that regularly interviewed at Stanford. Plaintiff admitted that she was aware of no
witnesses who could state that Weisberg had interfered with her attempts to
secure employment, nor anyone other than the anonymous author of the letter
predicting that Weisberg would tell potential employers that she was a
stalker. Plaintiff's attribution of
responsibility to Weisberg for the defamation and invasion of privacy was
correctly adjudicated against her.
Plaintiff
devotes most of her efforts on appeal to addressing Stanford's liability rather than attempting to continue trying to
implicate Weisberg. In their moving
papers, however, defendants presented evidence that Stanford did not create or send
the anonymous letter or the voice mail or cause either to be sent. They further pointed out that the letter was
sent only to plaintiff, and they argued that her publication of it was not
compelled.
title="">[11]
Defendants'
argument has merit in both respects. In
her deposition plaintiff testified that she had "no idea" who had
sent the letter or for what motive, and she had no evidence that Stanford was
involved in its preparation. When asked
why someone who wanted to remain anonymous would write "SLS" (for "Stanford
Law School") in the return address portion of the envelope, she speculated
that if not a "legitimate threat," it could have been a prank, either
by people who did not like her or by someone who did not like Weisberg and wanted
to warn her that he was harming her career.
Plaintiff was unable to identify anyone other than Knudsen who would be
willing to say he or she heard something negative about her. And she could name no one who had informed
her that Stanford was publishing false disparaging rumors about her other than
the anonymous author of the letter, the anonymous person who left the voice
mail, and the two unidentified women in the law school bathroom. She admitted that she did not "yet"
have any evidence beyond the letter, the voice mail, and her suspicion that any
of the defendants had "promoted discrimination against her by law
firms." Indeed, she admitted that
the letter and the voice mail constituted the only evidence she had that Stanford
had either made defamatory statements about her to a third party or threatened
to do so.
"In
some cases, the originator of a statement may be liable for defamation when the
person defamed republishes the statement, provided that the originator 'has
reason to believe that the person defamed will be under a strong compulsion to
disclose the contents of the defamatory statement to a third person
its contents. [Citations.]' (McKinney
v. County of Santa Clara (1980) 110 Cal.App.3d 787, 796.) However, this rule 'has been limited to a
narrow class of cases, usually where a plaintiff is compelled to republish the
statements in aid of disproving them.' (
(1991) 234 Cal.App.3d 1277, 1285.)
Moreover, the originator of the statement must foresee the likelihood of
compelled republication when the statement is originally made." (Beroiz
v. Wahl (2000) 84 Cal.App.4th 485, 497.)
Plaintiff
did not supply the necessary basis for inferring a compulsion to disclose that
would bring her within the exception to the publication element of libel. Asked why she felt compelled to publish the
letter herself, she answered that she needed to know who might have sent it, so
she sent it to the General Counsel's office, as well as to DFEH, to prompt an
investigation. She was also compelled to
disclose it to Knudsen because "he needed proof that there was a credible
threat" against her.
These
explanations, however, do not supply a basis for establishing Stanford's
liability for libel. First, there are no
facts suggesting a reasonable foreseeability that plaintiff would be under a
strong compulsion to publish the letter to a third party. This situation is not comparable to those
cases in which the plaintiff is compelled to disclose an unfavorable statement
in order to explain or refute it, such as a negative personnel evaluation (see,
e.g., McKinney v. County of Santa Clara, supra, 110 Cal.App.3d at p. 797 [former employee's
disclosure to prospective employers of defamatory statements in performance review
foreseeable]; compare Davis v.
Consolidated Freightways (1994) 29 Cal.App.4th 354, 373 [no evidence that
plaintiff's voluntary disclosure to union employees was compelled to explain
defamatory statements to prospective employers]; see also Beroiz v. Wahl, supra, 84 Cal. App. 4th at p. 497 [no
evidence republication was necessary in order to disprove the accusations
against plaintiff]; Live Oak Publishing
Co. v. Cohagan, supra, 234 Cal.App.3d at pp. 1286-1287 [no facts
offered that plaintiff was compelled to publish allegedly defamatory
letter].) Instead, plaintiff's admitted
intent in disclosing the letter was to initiate an investigation by the General
Counsel and DFEH, and to prove to Knudsen that she had been threatened. She was attempting not to refute the
accusations it contained, but to show that those accusations were made, with
the ultimate objective of discovering the source of the disparagement and
presumably stopping it.
"The
rationale for making the originator of a defamatory statement liable for its
foreseeable republication is the strong
causal link between the actions of the originator and the damage caused by
the republication." (
italics added.) There is no such link here: the statements made in the letter itself
cannot be said to have caused her inability to find employment, because the
disclosure to the General Counsel, DFEH, and Knudsen was completely unrelated
to that harm. Even if she felt
these third parties, none was a prospective employer who reasonably could be
expected to receive the information and consequently refuse to hire her.
v. Consolidated Freightways, supra,
29 Cal.App.4th at p. 373 [no strong compulsion to disclose theft accusation
where employer had strict policy against giving out employee information to
prospective employers beyond dates of employment].) None of the cases cited by plaintiff supports
her claim.
The second
cause of action for slander per se fares no better. Plaintiff relies on the tenet that
circumstantial evidence raising a reasonable inference of causation may be
sufficient to withstand a summary judgment motion. She is correct that in a summary judgment
proceeding " 'the court must "consider all of the evidence"
and "all" of the "inferences" reasonably drawn
therefrom . . . .'
At the same time, ' "[w]hen opposition to a motion for summary
judgment is based on inferences, those inferences must be reasonably deducible
from the evidence, and not such as are derived from speculation, conjecture,
imagination, or guesswork."
[Citation.]' . . . In this case, [plaintiff] presents nothing
but speculation. 'Speculation, however, is not evidence.' (Aguilar
v. Atlantic Richfield Co. [(2001)] 25 Cal.4th [826,] 864.)" (Annod
Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298-1299; see
also Bowman v. Wyatt (2010) 186
Cal.App.4th 286, 314 [circumstantial evidence insufficient if it creates only a
possibility of causation based on speculation and conjecture].)
Plaintiff
points out that defendants presented no declarations from the employees who
handled plaintiff's transcript request, who she believes are the most likely
culprits in the voice mail message. Even
accepting that argument, we cannot find a basis for finding causation
here. The message was conveyed to
Knudsen, not to anyone else. Although
the caller may have believed plaintiff's ruse and assumed that Knudsen was a
prospective employer, in fact he was not.
Accordingly, the defamatory message could not have caused the harm she allegedly
suffered—that is, injury to her "future
employment prospects" and impairment of her ability "to find
employment in law for eight of the past
nine years."
The
conversation in the bathroom was even weaker as a basis for holding Stanford
liable. The woman who allegedly
characterized her as "that Indian woman" who is a "stalker"
and "going after a Stanford professor" was not only unidentified, but
unidentifiable. Plaintiff herself had
"no idea" if the two women were students, employees, graduates, or
strangers. If the conversation was the
speaker's republication of what she had heard, it was nevertheless impossible
to trace the source of the original slanderous statement describing
plaintiff. The speaker could have heard
this rumor from anyone on or off the Stanford campus. Not only was plaintiff unable to attribute
the offensive description (whether the original or the republished one) to any
Stanford employee, but she was unable to suggest any causal connection between
the presumed original statement and her inability to secure employment. Indeed, plaintiff again makes no effort to
explain how the March 2009 bathroom conversation made her unable to find employment
"for eight of the past nine years," as alleged in her complaint.
The third
cause of action for defamation per quod added the allegation that Stanford
"and in particular, W[eisberg]," generated and circulated the
memorandum and picture of plaintiff in order "to falsely characterize
Plaintiff as a 'dangerous' individual."
Once again, however, she was unable to suggest a viable causal nexus
between the memorandum and picture and the employment rejections from law
firms. In the complaint she merely
alleged that defendants had made "similar statements" to potential
employers. In her deposition, however,
she admitted that she had no evidence that any of the employers to whom she had
applied had ever received any negative information about her from Stanford—nor
evidence that any of them had even asked about her before sending her the
rejection letter.
Plaintiff
was also unable to attribute the memorandum and picture—which she said she had
learned about from the security guard and manager of Professor Franklin's
residence—to Stanford. She only inferred
that Stanford or Weisberg had something to do with the circulation of the
memorandum and picture because afterward, while she was at the law school, she
"heard reference that [she] was a stalker and that [she] was going after a
Stanford professor."
name="_ftnref14" title="">[14] Plaintiff even admitted that she had no
first-hand knowledge of the contents of the memorandum; she only
"dangerous personality" based on the fact that the memorandum
existed.
On appeal,
plaintiff does not separately attempt to challenge the adjudication of the
fourth cause of action for invasion of privacy by placing her in a false light.
been abandoned. In any event, the claim
fails for the same reasons discussed above.
Plaintiff vaguely alleged that defendants had described her as a stalker
and a dangerous personality, that they had caused the circulation of the
memorandum and picture, that they were responsible for the anonymous letter and
voice mail, and that they had disseminated false statements about her violent
tendencies. "When a false light
claim is coupled with a defamation claim, the false light claim is essentially
superfluous, and stands or falls on whether it meets the same requirements as
the defamation cause of action." (
Cal.App.4th 1359, 1385, fn. 13.) Because
defendants established as a matter of law that plaintiff would be unable to
prove the elements of libel and slander, the false-light claim, which was based
on the same facts, also fails.
Plaintiff
has also not challenged the superior court's adjudication of the fifth cause of
action for violation of the Unruh Civil Rights Act, Civil Code sections 51 and
52; she has thus waived appellate review of that ruling. She does, however, contest the determination
that Stanford cannot be liable on the sixth cause of action, for negligent
supervision and training. Plaintiff
alleged that for six years, she had asked Stanford to "investigate and put
an end to the negative rumors, unwarranted and repeated phone calls, monitoring
behavior and interference with Plaintiff's career and financial affairs, among
other things, that she believed W[eisberg] and others were conducting against
her." Despite assurances from
defendants, the "outrageous, false and unwarranted information distributed
to third parties, including law firms," had continued, as had the
"unwarranted and intimidating phone calls."
Plaintiff's
deposition testimony was fatal to her claim.
By referring to Weisberg "and others," she explained, she
meant associates of Weisberg. She was unable to identify any of them,
however. She admitted that she did not
even know that in fact there were
others who were involved. Thus, she
acknowledged that any liability for the conduct of these unidentified
associates was dependent on Stanford's negligence in supervising and training
Weisberg. She was unaware of what
training he might have received; she only inferred that it was inadequate based
on the anonymous letter and the voice mail. Thus, the sixth cause of action was
entirely dependent on the defamation claims against Weisberg, which we have
already concluded fail as a matter of law. As there was no basis for inferring
that Weisberg was responsible for either
of those experiences, Stanford could not be liable for failing to train and
supervise him adequately.
Plaintiff
adds a new theory of negligence on appeal, that Stanford breached its duty to
train and monitor the employees who handled her transcript requests by
"failing to investigate [her] numerous complaints for ten years except for
one biased investigation in 2004."
The evidence she cites pertains to requests for investigations in
letters she sent in 2002, 2003, 2004, 2005, 2008, and 2009.
registrar's office personnel as the source of unfavorable rumors about
her. Moreover, in asserting Stanford's
disregard of her concerns "over the years," plaintiff does not
provide authority for her assumption that Stanford had a duty to investigate
its students and employees.
Finally,
even if there was such an obligation, plaintiff has not provided a causal nexus
between the failure to investigate and the loss of employment income she
suffered, which was the harm she alleged in her complaint. As in Saelzler
v. Advanced Group 400 (2001) 25 Cal. 4th 763, 781, "[p]laintiff has
had ample opportunity, through pretrial discovery, to marshal evidence showing
that defendants' asserted breach of duty actually caused her
injuries." As the evidence at hand
shows only a "speculative possibility" that additional measures by
Stanford might have restored or enhanced plaintiff's reputation and alleviated
her difficulty in securing employment, plaintiff's theory did not generate a
material issue of fact that requires the process of trial. (Ibid.; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334.) Consequently, defendants were entitled to
adjudication of this cause of action as a matter of law.
5. Evidentiary Objections
Plaintiff
next challenges the superior court's exclusion of "critical pieces of
evidence" that she believes demonstrate Stanford's "malicious
behavior" toward her. Plaintiff
first disputes the exclusion of the following statement from her
declaration: "Documented Reference
Check sent me the written declaration of their caseworker attesting to her
interactions with Stanford Law School."
This statement was in fact, not excluded; the court overruled
defendants' objection. Nor did the court
exclude the caseworker's purported declaration itself; what was excluded was
plaintiff's hearsay statement regarding what Documented Reference Check told
her by phone. As to that ruling, we need
not comment on the continuing discussion of the correct standard of review for
evidentiary objections in summary judgment
proceedings. Whether we apply the
abuse-of-discretion standard or de novo review, the lower court did not err in
sustaining defendants' objection:
plaintiff's statement regarding what she learned from the reference
checker unquestionably contained hearsay.
excluded evidence was relevant; the only asserted consequence she offers for
the court's ruling was that it compromised "the determination of whether
Stanford had continued to act maliciously against [plaintiff] after she settled
her previous case with Stanford in 2001."
Had plaintiff's hearsay declaration been admitted, it would not have
contributed to an inference that its past conduct made Stanford responsible for
the anonymous letter, the voice mail, or the conversation in the law school
bathroom, or that these defamatory communications deprived her of employment
opportunities.
6. Conclusion
In summary,
defendants presented evidence, through declarations and plaintiff's own
testimony, that plaintiff would be unable to produce any evidence supporting
the claims in her second amended complaint, and plaintiff failed to produce
admissible evidence raising a triable question of fact material to any of the
issues raised in her complaint. Although
causation is ordinarily a question for the trier of fact, there must be some
factual basis for a plaintiff's general assertion of causation; otherwise
"the conclusion is unavoidable that summary judgment was properly
granted." (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 488;
accord, Saelzler v. Advanced Group 400,
supra, 25 Cal. 4th at p. 775.)
Clearly
plaintiff has experienced considerable emotional and professional challenges
since her graduation from Stanford Law School in 1994. Nevertheless, defendants established that
because plaintiff would not be able to prove the elements of her defamation and
related claims, they were entitled to judgment as a matter of law. We must
conclude, therefore, that defendants' motion was properly granted. As plaintiff's challenge to the order
requiring her to pay costs is entirely based on the asserted error in granting
summary judgment, we must uphold that order as well.
Disposition
The
judgment and postjudgment order are affirmed.
____________________________
ELIA,
J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
name="_ftn1" title="">[1]
References to "Stanford" without specific attribution will be to
Stanford Law School and Stanford University collectively.
name="_ftn2" title="">[2] The named director, Gloria Pyszka, served in
that role only until 1999.
