ORDER RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pеnding before the Court is Defendant Chevron U.S.A. Inc.’s Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment. (Dkt. # 22.) Plaintiff Richard Duste has filed an Opposition (Dkt. # 28), to which Defendant filed a Reply (Dkt. 33). On November 5, 2009, the Court held oral argument in this matter. After consideration of the parties’ briefs and oral arguments, relevant legal authority, and good cause appearing, the Court GRANTS IN PART and DENIES IN PART Defendant’s Motion as follows.
I. BACKGROUND
Plaintiff Richard Duste (“Plaintiff’) began working for Defendant Chevron U.S.A., Inc. (“Defendant” or “Chevron”) as the Southwestern Territory Manager on January 16, 1998. (Joint Statement of Undisputed Facts (“JSOF”) 1, Dkt. #26; Pl.’s Opp.’n at 2:2-3, Dkt. # 28.) In October 2001, Plaintiff was promoted to the position of sales manager. (JSOF 2, Dkt. # 26; PL’s Opp’n at 2:3-4, Dkt. # 28.) In this capacity, Plaintiff was responsible for directly managing a sales force of six territory managers for the Global Aviation Division’s customers in the United States, the Caribbean, and Latin America. (JSOF ¶ 3, Dkt. # 26.) Additionally, as sales manager, Plaintiff was responsible for reviewing and approving expense reports submitted by his subordinates. (JSOF ¶ 4, Dkt. # 26.)
According to Plaintiff, he was also responsible for entertaining Defendant’s clients. (PL’s Opp’n at 2:8, Dkt. # 28.) To this end, Plaintiff asserts that “he was frequently required to entertain executives from oil-consuming companies,” and “as a practical matter, entertaining oil-company executives does not always involve trips to fancy tapas restaurants and nice wine bars.” (PL’s Opp’n at 1:4-6, Dkt. #28.) Thus, Plaintiff asserts that the clients often would ask to go to gentlemen’s clubs, and he accommodated such requests and accompanied clients to gentlemen’s clubs on five occasions. (JSOF ¶ 41, Dkt. # 26; Opp’n at 2:8-10, Dkt. # 28.) On two such occasions, he purchased “lap dances” for himself. (Pope Deck, Ex. A 133:12-135:4, Dkt. # 23.)
As a Chevron employee, Plaintiff was aware that he was expected to follow Defendant’s policies and procedures. (JSOF ¶ 6, Dkt. # 26.) During Plaintiffs employment, Defendant had in place a Travel and Expense Accounting Policy (“TEA”), Policy 585. (JSOF ¶ 5, Dkt. # 26.) Plaintiff was aware of the TEA Policy. (JSOF ¶ 5, Dkt. # 26.) Further, as an expense report
Plaintiff was also familiar with a variety of examples of misuse of the company travel policy, including submission of false expenses and inappropriate entertainment of clients. (JSOF ¶ 8, Dkt. # 26.) Plaintiff understood that, as a supervisor, he was responsible for satisfying himself that his subordinates’ expense reports were accurate. (JSOF ¶ 9, Dkt. # 26.) Plaintiff was also responsible for reviewing his direct reports’ expense reports, making inquiries when follow-up was required, and when aрpropriate, approving the expense reports submitted. (JSOF ¶ 10, Dkt. # 26.) Plaintiff understood that violation of Defendant’s travel and expense reporting policy may subject the employee to disciplinary action that may include non-reimbursement of expenses, cancellation of credit card privileges, and disciplinary action up to and including termination. (JSOF ¶ 11, Dkt. # 26.) As part of its finance and auditing function, Defendant implements periodic spot checks in which employee expense reports are randomly selected for review. (JSOF ¶ 12, Dkt. # 26.) In early 2007, a routine spot check resulted in the random identification of expense reports submitted by an employee named Chris Browning. (JSOF ¶ 13, Dkt. # 26.) The expense reports pulled during the spot check were from a period in 2005 when Browning reported to Plaintiff, who was responsible for reviewing and approving reports that Browning submitted. (JSOF ¶ 14, Dkt. # 26.) The expense reports showed irregularities, and as a result, Doug Hinzie, president of Defendant’s Global Aviation Divisiоn, and Astley Blair, Defendant’s Division Finance Office for the Global Supply and Trading organization, initiated an investigation with Debra Taylor in Defendant’s Corporate Security Department. (JSOF ¶ 15, Dkt. # 26; Taylor Deck, ¶¶ 1-2, Dkt. # 25.)
Taylor’s investigation included a review of Browning’s expense reports for 2005 and into 2006, a review of email messages automatically generated by Defendant’s travel and expense reporting system to Browning and Plaintiff, and witness interviews. (JSOF ¶ 16, Dkt. #26.) Taylor concluded as a result of her investigation that Browning had engaged in a pattern of systematic fraudulent expense reporting, which included submitting claims for reimbursement for airline tickets where flights were not actually taken, and for which Browning had received reimbursement from the airline as well; submitting claims for excessive entertainment expenses; and submitting claims for entertainment expenses at questionable establishments, such as strip clubs. (JSOF ¶ 17, Dkt. #26.) In all, Browning submitted over $28,000 in fraudulent expenses that were approved by Plaintiff. (JSOF ¶ 18, Dkt. #26.)
While investigating Browning, Taylor found at least ten travel and exрense reporting system notifications itemizing delinquent and irregular expense report items that Browning had incurred on his corporate credit card from mid-2005 to early 2006. (JSOF ¶19, Dkt. #26.) Plaintiff was copied on these email messages, in his capacity as Browning’s manager. (JSOF ¶ 20, Dkt. # 26.) However, Plaintiff had no conversations with Brown
Given the magnitude of Browning’s fraudulent submissions, Taylor arranged for an interview with Plaintiff in August 2007. (JSOF ¶ 23, Dkt. #26.) The interview lasted for about three hours, during which time Taylor reviewed spreadsheets of Browning’s charges with Plaintiff and asked him about the conduct for which Browning had been terminated. (JSOF ¶ 24, Dkt. # 26.) During the interview, Plaintiff was also given the opportunity to respond to questions and to explain his side of the story. (JSOF ¶ 25, Dkt. # 26.) In his deposition, Plaintiff stated that, although Browning’s expenses were “kind of obvious” on the spreadsheet presented by Taylor, Browning “hid” them in a “sea of charges,” making it “not obvious” to him while reviewing the expense reports. (Pope Decl., Ex. A 163:5-18, Dkt. #23.) At the conclusion of the interview, there was nothing that Plaintiff had wanted to say, but was prevented from doing so. (Pope Decl., Ex. A 171:25-172:3, Dkt. #23.)
After conducting her investigation, Taylor concluded that Plaintiff had approved a large number of inappropriate charges, including strip club entertainment with clients, airfare charges where trips were not taken, and high dollar cash expenses from June 2005 to February 2006. (JSOF ¶26, Dkt. #26.) Other than quibbling with whether “strip club” charges are appropriate, Plaintiff admits that he approved a large number of inappropriate charges, as detailed above. (JSOF ¶27, Dkt. # 26.) After carefully considering the results of Taylor’s investigation, Doug Hinzie made the decision to terminate Plaintiffs employment. (JSOF ¶ 28, Dkt. # 26.) Hinzie decided to terminate Plaintiff because, based on his approval of Browning’s fraudulent expense reports, he concluded that Plaintiff had abdicated his respоnsibility as a manager: his conduct was at best grossly negligent, or at worst, intentional misconduct. (JSOF ¶ 29, Dkt. #26.)
Hinzie met with Plaintiff on October 12, 2007 and advised him that his employment was terminated. (JSOF ¶ 30, Dkt. # 26.) During the meeting, Plaintiff repeated the same information and explanations that he had provided to Taylor during his interview with her. (JSOF ¶ 32, Dkt. # 26.) During his deposition, Plaintiff stated that he did not believe that his termination by Defendant violated any company policies or procedures. (JSOF ¶ 51, Dkt. # 26.) He also understood during the course of his employment at Chevron that his employment was terminable “at will.” (JSOF ¶ 50, Dkt. # 26.)
According to Hinzie, the information about the decision to terminate Plaintiff was communicated within Chevron to only a handful of individuals, on a confidential basis, whom Hinzie felt had a business need to know. (JSOF ¶ 31, Dkt. # 26.) However, it is undisputed that Chevron officials learned that Plaintiff had “frequented” gentlemen’s clubs and “brothels” from fellow Chevron employee Tim Black, who made those allegations against Plaintiff during his participation in an official Chevron investigation into travel expense irregularities. (JSOF ¶ 38, Dkt. # 26.)
Tim Black was a salesman at Chevron who reported to Plaintiff in 2005 and 2006. (JSOF ¶ 39, Dkt. # 26.) His job duties did not include supervision, investigation, discipline, termination, or corporate policy-making. (JSOF ¶ 39, Dkt. # 26.) He was instructed to keep Defendant’s investigation into Plaintiffs conduct confidential.
It is also undisputed that various Chevron employees, including Tim Black, told Ed Zwirn, the CEO and minority shareholder of SheltAir Aviation — a former Chevron customer and a market participant in the fuel industry — that Plaintiff had been terminated because he went to gentlemen’s clubs and brothels. (JSOF ¶ 45, Dkt. #26; Def.’s Mot. at 18:12-18, Dkt. # 22.)
Plaintiff denies frequenting gentlemen’s clubs and brothels. (JSOF ¶ 41, Dkt. # 26.) He has never knowingly attended a brothel, and claims that he only accompanied clients to gentlemen’s clubs on approximately five occasions over several years when clients brought him there. (JSOF ¶ 41, Dkt. #26.)
Because the fuеl industry is a market with a limited number of suppliers, and participants in the fuel industry are generally familiar with each other, Plaintiff feels that his reputation in the industry is essential to his livelihood, whether he is working for Defendant or another company. (JSOF ¶¶ 43-44, Dkt. #26.) However, during his deposition, Plaintiff could identify no prospective employment that he has been unable to obtain due to Defendant allegedly disclosing that he was no longer with the company, and he could identify no other damages allegedly flowing from any such disclosure. (JSOF ¶ 48, Dkt. # 26.) In fact, approximately months after his termination, Plaintiff obtained other employment with British Petroleum. (JSOF ¶ 46, Dkt. # 26.) In 2008, Plaintiff moved voluntarily from British Petroleum to his current employer, ConocoPhillips. (JSOF ¶ 47, Dkt. #26.)
On August 20, 2008, Plaintiff filed the present Complaint, alleging nine causes of action: (1) negligence; (2) intentional interference with contractual relationships; (3) negligent interference with contractual relationships; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; (6) slander; (7) libel; (8) breach оf contract; and (9) unfair business practices under California Business & Professions Code section 17200, et seq. (Dkt. #1.) Defendant filed the present motion on October 1, 2009. (Dkt. #22.)
II. LEGAL STANDARD
Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). An issue is “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party.
Anderson v. Liberty Lobby, Inc.,
A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims.
Celotex Corp. v. Catrett, 477
U.S. 317, 323-24,
Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence “set [forth] specific facts showing [that there is] a genuine issue for trial.” Fed.R.Civ.P. 56(e). The non-moving party must “identify with reasonable particularity the evidence that precludes summary judgment.”
Keenan v. Allan,
III. DISCUSSION
In its motion, Defendant argues that there is no evidentiary support for any of Plaintiffs claims, and that the undisputed facts support summary judgment in its favor. Defendant also argues that Plaintiffs first through fifth causes of action are preempted by the California Workers’ Compensation Act (“CWCA”), Cal. Lab. Code § 3602. The Court shall address each claim and the parties’ related arguments in turn.
A. Preemption
Defendant first contends that it is entitled to summary judgment on Plaintiffs claims for negligence, intentional and negligent interference with contractual relations, and intentional and negligent infliction of emotional distress because these claims are preempted by CWCA. Specifically, Defendant argues that these claims are premised entirely on events alleged to have occurred during Plaintiffs employment — namely, the investigation into his conduct as a manager and the discipline that was imposed as a result. (Def.’s Mot. at 10:22-28, Dkt. # 22.)
In response, Plaintiff argues that all the tortious statements except one wеre committed after he left Chevron, not during his employment, and Defendant’s argument must therefore fail. (Pl.’s Opp’n at 5:4-6, Dkt. # 28.)
With certain statutory and judicial exceptions, a compensation claim under the CWCA provides the exclusive remedy against an employer for a work-related injury. Cal. Lab.Code § 3602;
Lenane v. Continental Maritime of San Diego, Inc.,
In
Shoemaker v. Myers,
the plaintiff was threatened, intimidated, harassed, disciplined, and eventually terminated as the result of an investigation he conducted of possible illegal practices by his employer.
Given this standard, it appears at least plausible that Plаintiffs claims could be preempted under the CWCA. However, Plaintiff does not include allegations of physical illness and disability resulting from the acts of Chevron and its employees. Further, Plaintiff argues that all the tortious statements at issue here except one were committed after he left Chevron, not during his employment. It is not clear that statements made after he was no longer employed are considered a “normal part of the employment relationship,” and Defendant did not respond directly to this argument, either in its motion or reply brief. Accordingly, because Defendant has failed to meet its burden, the Court finds it appropriate to consider the claims on an individual basis.
B. Negligence
Plaintiffs first cause of action is for negligence. He alleges that Defendant and its employees owed him a duty to refrain from publishing false statements that tend to injure him in his profession, yet Chevron employees made statements to industry clients that he “frequented strip clubs and brothels,” despite the fact that those stаtements were untrue. (PL’s Opp’n at 3:5-10, Dkt. # 28.) Plaintiff further alleges that Chevron is vicariously liable for its employees’ conduct on a theory of respondeat superior. (Compl. ¶ 37, Dkt. # 1.)
Defendant challenges Plaintiffs negligence claim on the ground that he cannot establish a prima facie case to sustain the claim. (Def.’s Mot. at 12:14-15, Dkt. #22.) Specifically, Defendant maintains that Plaintiff has identified no duty of care, breach of that duty, or resulting damages, with respect to Chevron. (Def.’s Reply at 2:24-25, Dkt. # 33.)
In response, Plaintiff argues that it is clear that Tim Black and “other Chevron employees” slandered him in violation of their “duty,” because “everyone has a duty to refrain from publishing false statements that tend to injure another in his or her profession.” (PL’s Opp’n at 11:19-21, Dkt. # 28.) Plaintiff cites to California Civil Code section 46 in support of his argument. (PL’s Opp’n at 11:20-22, Dkt. # 28.)
Under the theory of respondeat superior, an employer is liable for the wilful and malicious torts of its employees committed in the scope of employment.
Fisher v. San Pedro Peninsula Hosp.,
As to the first element — duty— Plaintiff alleges that Chevron employees, and therefore Defendant under a theory of respondeat superior, owed him a duty to refrain from publishing false statements that tend to injure another in his or her profession pursuant to California Civil Code section 46. However, section 46 relates to a cause of action for slander and provides as follows:
Slander is a false and unprivileged publication, orally uttered, ... which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.
Cal. Civ.Code § 46. As discussed below, Plaintiff has also brought a cause of action for slander. Accordingly, to the extent that Plaintiffs cause of action for negligence is based on slander, it should be viewed and analyzed as a single cause of action for slander.
See Felton v. Schaeffer,
Accordingly, the Court finds that Defendant is entitled to judgment as a matter of law and hereby GRANTS Defendant’s motion as to this cause of action.
C. Intentional Interference with Contractual Relations
Plaintiffs second cause of action is for intentional interference with contractual relations. Plaintiff alleges that there was a contractual relationship between himself and Defendant containing the probability
Defendant argues that it is entitled to summary judgment on this claim because Plaintiff either lacks evidence on necessary elements of the claim or has failed to come forward with evidence sufficient to create a triable issue of fact. In his opposition, Plaintiff does not respond to Defendant’s argument.
California courts have long held “that a stranger to a contract may be liable in tort for intentionally interfering with the performance of a contract.”
Pac. Gas & Elec. Co. v. Bear Stearns & Co.,
Here, the Court finds that Plaintiff has failed to set forth specific facts showing that there is a genuine issue for trial. First, he has failed to identify a relevant contract between himself and Chevron. Second, even if he were able to identify a contract and the other elements of this cause of action, he has not shown that Defendant can be held liable. A cause of action for tortious interference with contract will not lie against a party to the contract.
Dryden v. Tri-Valley Growers,
D. Negligent Interference with Contractual Relations
In his third cause of action, Plaintiff asserts a claim for “negligent interference with contractual relationships.” (Compl. ¶¶ 46-52, Dkt. # 1.) However, California law does not recognize a cause of action for negligent interference with contractual relations.
Davis v. Nadrich,
E. Intentional Infliction of Emotional Distress
Plaintiffs fourth cause of action is for intentional infliction of emotional distress. Plaintiff alleges that Chevron employees made false statements about him frequenting gentlemen’s clubs and brothels, with the specific intent to cause him emotional distress and with reckless disregard for the truth, that the statements were extreme and outrageous, and that he suffered severe emotional distress as a result of their conduct. (Compl. ¶¶ 54-57, Dkt.
In its motion, Dеfendant argues that Plaintiff cannot demonstrate the elements of this claim because there is no outrageous conduct and no evidence of severe emotional distress. (Def.’s Mot. at 14:9-15:21, Dkt. #22.) In response, Plaintiff argues that the comments made by various Chevron employees were deliberate and malicious, and they intentionally cost him his job. (Pl.’s Opp’n at 13:7-11, Dkt. #28.) As such, Plaintiff maintains that their conduct was malicious, oppressive, and outrageous. (PL’s Opp’n at 13:12, Dkt. # 28.) Plaintiff further argues that the severity of his emotional distress is a jury question and should not be decided at the summary judgment phase. (PL’s Opp’n at 13:13-22, Dkt. # 28.)
The elements of the tort of intentional infliction of emotional distress are: “(1) extreme and outrageous Conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.”
Christensen v. Superior Court,
Here, as to the first element, Defendant asserts that “[t]he core of Plaintiffs complaint — that Chevron’s conclusions about his misconduct was [sic] overblown, and that his employment was terminated as a result' — is not ‘so severe that no reasonable man could be expected to endure it.’ ” (Def.’s Mot. at 15:3-7, Dkt. # 22) (quoting
Pitman v. City of Oakland,
For conduct to be considered outrageous, “it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”
Yurick v. Super. Ct.,
Even if the Court were to find that a genuine issue of material fact exists as to whether the conduct was outrageous, Plaintiff has failed to meet his burden of establishing severe emotional distress. Severe emotional distress is described as “emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.”
Simo v. Union of Needletrades Indus. & Textile Emp.,
F. Negligent Infliction of Emotional Distress
Plaintiffs fifth cause of action is for negligent infliction of emotional distress. Plaintiff alleges that Chevron employees breached the duty of care owed to him when they made the false statements regarding his frеquenting gentlemen’s clubs and brothels, they made the statements with reckless disregard for the truth, and as a result of the statements, he suffered severe emotional distress and physical illness. (Compl. ¶¶ 60-65, Dkt. # 1.) Plaintiff further alleges that Defendant is vicariously liable for their actions under a respondeat superior theory. (Compl. ¶ 65, Dkt. # 1.) However, to the extent that plaintiff might seek to proceed upon a claim regarding negligent infliction of emotional distress, under California state law, there is no independent tort of negligent infliction of emotional distress.
Mitchell v. Adams,
G. Slander and Libel
The core causes of action in Plaintiffs lawsuit are his defamation claims against Chevron. Plaintiffs Comрlaint does not identify the alleged defamatory statements with much specificity other than indicating that the statements occurred during the course of Chevron’s investigation into Plaintiffs conduct as sales manager and the statements “accused [Plaintiff] of frequenting ‘brothels’ with clients, and other scandalous activity that a reasonable person and ordinary member of the community would find disreputable.” (Compl. ¶ 68, Dkt. # 1.) Reviewing the parties’ briefs, the statements giving rise to Plaintiffs defamation claims are somewhat of a moving target.
Initially in its Motion, Chevron moves for summary judgment on Plaintiffs slander and libel claims based on three categories of statements: (1) the statements in Ms. Taylor’s investigative report; (2) a communication by Chevron manager Keith Sawyer to Chevron’s dealers and distributors with which Plaintiff had been a key Chevron contact; and (3) statements made by Tim Black to Ed Zwirn, the CEO and minority shareholder of SheltAir Aviation, a former Chevron customer. (Def.’s Mot. at 16:5-18:23.) However, in his opposition, Plaintiff identifies only two categories of stаtements on which he bases his claims: (1) Tim Black’s statements to the internal investigators that Plaintiff frequented gentlemen’s clubs and brothels; and (2) Tim Black and other Chevron employees’ statement to Ed Zwirn that Plaintiff had been terminated from Chevron because he went to gentlemen’s clubs and brothels. (JSOF ¶ 45, Dkt. #26; Pl.’s Opp’n at 7:18-21, Dkt. #28.) Accordingly, in its Reply, Chevron focuses its argument specifically on these two categories of allegedly defamatory statements. The Court therefore will assess whether Plaintiff has presented sufficient evidence to withstand summary judgment on the two categories of statements he has identified.
1. Plaintiffs Slander Claim
In his sixth cause of action, Plaintiff asserts a claim for slander. He contends that “during and after [his] employment with Chevron, defendants made false statements to industry clients that [Plain-' tiff] ‘frequented strip clubs and brothels’ with clients.” (PL’s Opp’n at 1:16-18, Dkt. #28.)
In California, to state a prima facie case of slander, a plaintiff must show an intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency tо injure or which causes special damage.
Smith v. Maldonado,
Tend[ ] directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits[.]
Cal. Civ.Code § 46(3). Plaintiff contends that Mr. Black’s statements to Chevron investigators, and Mr. Black and unidentified other Chevron employees’ statements) to Ed Zwirn that Plaintiff “frequents brothels with clients,” qualify as
The Court now turns to Defendant’s specific challenges to Plaintiffs slander claim.
a. Statement by Mr. Black During Chevron Internal Investigation
The first basis for Plаintiffs slander claim is Mr. Black’s statement during an internal company investigation that Plaintiff had “frequented” gentlemen’s clubs and “brothels” with clients. (JSOF ¶ 38, Dkt. # 26.) Defendant contends that it is entitled to summary judgment on Plaintiffs slander claim premised on this statement because (1) there was no publication of the statement to a third party, and (2) the statement was protected under the common interest privilege.
i. Publication
In its Reply, Defendant argues that “if Black’s statement is attributable to Chevron, then the effect of such attribution is that Chevron was making a slanderous statement to itself.” (Def.’s Reply at 5:1-3, Dkt. # 33.) Defendant thus asserts that Plaintiffs claim fails as a matter of law because there was no publication of the defamatory statement to a third party. (Def.’s Reply at 5:3-10, Dkt. # 33.)
In California, internal corporate statements about an employee may be considered “published” for purposes of a slander claim.
Kelly v. Gen. Tel. Co.,
ii. Statement of Fact that is False
As to whether the statement is false, Black has admitted that his allegations that Plaintiff frequented gentlemen’s clubs and brothels were wrong, that he knew they were wrong, and that he made the allegations in reckless disregard for Plaintiffs rights. (JSOF ¶ 42, Dkt. #26.) Accordingly, Plaintiff also satisfies this element of his slander claim.
iii Unprivileged
Defendant contends that the common interest privilege under California Civil Code section 47(c) applies to Mr. Black’s statement made during Chevron’s internal investigation. (Def.’s Mot. at 17:3-17.) Plaintiff, however, counters that the qualified privilege is inapplicable because Mr. Black made the statement with malice. (PL’s Opp’n at 7:9-8:7.)
“California law recognizes two types of privileged communications — communications which are absolutely privileged and communications which are qualifiedly or conditionally privileged. If
In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.
This privilege is conditional in that, if it is shown that the statement was made with malice, the privilege never arises.
Kashian,
In support of his assertion that Mr. Black made the statement to Chevron investigators with malice, Plaintiff proffers the following statements in Mr. Black’s Declaration:
10. On or about August 2007, I was interviewed by Chevron investigators (“Investigators”) regarding my conduct and Mr. Duste’s conduct with regard to the May 2005 trip to San Maarten.
11. During said interview, I spoke with the Investigators about the Bar we visited on or about May 4, 2005 with the Chevron employees and customers. During my discussion, I incorrectly referred to the Bar as a “brothel.” Although I did not believe the bar to be a “brothel,” I said it was anyway. I made this statement in reckless disregard of Mr. Duste’s rights.
12. I was aware at all times that visiting brothels would be contrary to Chevron’s policies for employees.
13. I was aware during the August 2007 interview that admitting to Investigators that an employee, or myself, who visited a brothel could be subject to disciplinary action and possibly have their employment terminated.
14. At the time I spoke with the Investigators, I was aware that the Bar was not a brothel, and that referring to it as a brothel would be incorrect.
(Black Decl. ¶¶ 10-14, Dkt. # 31.) Based on these statements, there is evidence that Mr. Black stated that Plaintiff had visited a brothel during his business trip to San Maarten, knowing that such statement was inaccurate and that it violated Chevron’s policies and exposed Plaintiff to possible disciplinary measures. Accordingly, the Court finds that Plaintiff has proffered sufficient evidence to create a triable issue of material fact as to whether Mr. Black made the statements to Chevron’s investigators with malice. Chevron is therefore not entitled to summary judgment based on a common interest privilege under California Civil Code 47(c).
iv. Effect of the Statement
With respect to the final element — the statement has a natural tendency to injure or causes special damage — the Court finds that genuine issues of fact exist. Plaintiff asserts that Mr. Black’s statement falls within the scope of California Civil Code section 46(3) because it tended to injure him in respect to his profession and trade. In support, Plaintiff proffers that the statement was one of the bases for his termination, and that “spreading those statements through the rest of the industry will only hurt [him] further.” (PL’s Opp’n at 6:10-13, Dkt. #28.). The Court agrees with Plaintiff that the substance of the statement is sufficient to create a triable issue of fact as to whether it was such that it injured him in respect to his profession and trade, which is sufficient to establish slander per se under section 46(3) and does not require proof of actual damages. Accordingly, Chevron is not entitled to summary judgment on this issue.
b. Respondeat Superior
Based on the analysis above, the Court finds that Plaintiff has set forth specific facts showing that there is a genuine issue for trial regarding his claim for slander related to Mr. Black’s statement during the internal investigation. However, Tim Black is not a defendant in this case; thus, in order to maintain his cause of action against Chevron, Plaintiff must establish that Chevron is liable under a theory of respondeat superior.
Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of its employees committed within the scope of the employment.
Lisa M. v. Henry Mayo Newhall Mem. Hosp.,
If the employee inflicts an injury out of personal malice, the employee is not acting within the scope of employment.
Myers v. Trendwest Resorts, Inc.,
In his opposition, Plaintiff argues that Tim Black’s statements to Chevron investigators were “within a causal nexus of his employment with Chevron” because, “[h]ad Mr. Black not been employed by Chevron, he never would have participated in the investigation, and, by axiom, he never would have made the statements.” (Pl.’s Opp’n at 9:27-10:2, Dkt. #28.) However, as stated above, it is not enough that the employment brought tortfeasor and victim together in time and place.
Lisa M.,
In its reply, Defendant cites to several authorities in support of its argument that Black’s statement had no causal nexus to his employment. In
Delfino v. Agilent Technologies, Inc.,
c. Statement to Mr. Black and Unidentified Other Chevron Employees’ to Ed Zwim
Plaintiff also alleges slander related to Tim Black and other Chevron employees’
2. Plaintiff’s Libel Claim
Plaintiffs seventh cause of action is for libel. Based on the same statements as in his slander cause of action, Plaintiff alleges that “during the investigation into [Plaintiffs] alleged conduct, written questions and written responses were made, and the investigation conducted in bad faith, and made for the sole purpose of originating a method to terminate [him] from Chevron with any means available.” (Compl. ¶ 78, Dkt. # 1.) However, Plaintiff fails to address this cause of action in his opposition; thus, because Plaintiff has failed to go beyond the pleadings and by his own evidence set forth specific facts showing that there is a genuine issue for trial, the Court finds that Defendant is entitled to judgment as a matter of law. Accordingly, the Court hereby GRANTS Defendant’s motion as to this cause of action.
H. Breach of Contract
Plaintiffs eighth cause of action is for breach of contract. He alleges that a valid contract existed between himself and Defendant, and that Defendant breached the contract when it negligently terminated him. (Compl. ¶¶ 84-86, Dkt. # 1.) In its motion, Defendant argues that Plaintiff understood that his employment was terminable “at will” and that he testified in his deposition that it had violated no policies or procedures in connection with his termination. (Def.’s Mot. at 20:10-13, Dkt. # 22.) As such, Defendant maintains that Plaintiff cannot assert a claim for breach of contract. Plaintiff does not address Defendant’s arguments in his opposition. Given that Plaintiff testified that he did not believe that his termination violated any company policies or procedures, (JSOF ¶ 51, Dkt. # 26), and that his employment was terminable “at will,” (JSOF ¶ 50, Dkt. # 26), the Court finds that Plaintiff has failed to set forth specific facts showing that there is a genuine issue for trial. Accordingly, Defendant is entitled to judgment as a matter of law, and the Court hereby GRANTS Defendant’s motion as to this cause of action.
I. California Business & Professions Code Section 17200
In his final cause of action, Plaintiff alleges that Defendant engaged in unfair business competition in violation of California’s unfair competition law (“UCL”), Cal. Bus. & Prof.Code § 17200 et seq. Specifically, Plaintiff alleges that Chevron employees made false аllegations against him as a “fictitious means” to end his employment with Chevron. (Compl. ¶¶ 89-90, Dkt. # 1.)
In its motion, Defendant argues three reasons why Plaintiff cannot assert a claim under the UCL: (1) his remedies are limited to injunctive relief and restitution, and he seeks neither; (2) he cannot bootstrap a cause of action for violation of the UCL to his tort claims; and (3) he cannot establish that Defendant engaged in unlawful, unfair or fraudulent business practices in violation of the UCL. (Def.’s Mot. at 20:17-21:20, Dkt. # 22.) In his opposition, Plaintiff fails to address any of Defendant’s arguments.
To state a claim for unfair business practices and competition pursuant to the UCL, a plaintiff can allege an unlawful, unfair, or fraudulent business act
Here, the Court finds that Plaintiff has failed to identify with reasonable particularity the evidence that precludes summary judgment on this claim. In fact, beyond the vague allegations in his complaint, Plaintiff has set out no specific facts showing that Defendant is liable under the UCL. Thus, the Court finds that Defendant is entitled to judgment as a matter of law and hereby GRANTS Defendant’s motion as to this cause of action.
IV. CONCLUSION
Based on the analysis above, the Court hereby ORDERS as follows:
1) The Court GRANTS Defendant’s motion for summary judgment as to Plaintiffs claims for negligence, intentional interference with contractual relationships, negligent interference with contractual relationships, intentional infliction of emotional distress, negligent infliction of emotional distress, libel, breach of contract, and violation of California Business & Professions Code section 17200 et seq.
2) The Court DENIES Defendant’s motion for summary judgment as to Plaintiffs claim for slander.
IT IS SO ORDERED.