Judge: Carolyn M. Caietti, Case: 37-2020-00043758-CU-DF-CTL, Date: 2023-09-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 20, 2023

09/21/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Defamation Demurrer / Motion to Strike 37-2020-00043758-CU-DF-CTL BISHOP VS FORTE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/04/2023

Defendants The Bishop's School and Ron Kim's Demurrer to Plaintiff's Fourth Amended Complaint is OVERRULED IN PART AND SUSTAINED IN PART WITHOUT LEAVE TO AMEND.

Defendants The Bishop's School and Ron Kim's Motion to Strike Plaintiff's Fourth Amended Complaint is GRANTED WITHOUT LEAVE TO AMEND.

Discussion Plaintiff's Fourth Amended Complaint (4AC) alleges Defendants (the School and/or Kim) terminated his employment at the School after it became aware of a text exchange between Plaintiff and a former student. Plaintiff's defamation claims arise from Ron Kim's, the Head of the School, termination letter.

The 4AC asserts causes of action for (1) breach of contract (against the School); (2) defamation (against the School); (3) defamation (against Kim); and (4) breach of contract (against Kim).

Defendants bring this Demurrer as to the second, third and fourth causes of action.

Demurrer A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) The second and third causes of action are for defamation against the School and Kim, respectively. A claim for defamation requires: (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Defendants first argue the 4AC does not allege a publication. As explained in the Fourth District, Division One case of Tilkey v. Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 541, 'while compelled self-published defamation per se technically eliminates the need for publication by the defendant to a third party, a Calendar No.: Event ID:  TENTATIVE RULINGS

2978101  49 CASE NUMBER: CASE TITLE:  BISHOP VS FORTE [IMAGED]  37-2020-00043758-CU-DF-CTL plaintiff cannot manufacture the defamation claim by simply publishing statements to a third party because the plaintiff must disclose contents of the employer's statement to a third party after reading or being informed of the contents. (Citation.) The originator of the statement is liable for the foreseeable repetition because of the causal link between the originator and the presumed damage to the plaintiff's reputation (citation), but the publication must be foreseeable.' The compulsory self-publication exception does not apply unless the plaintiff was actually compelled to repeat the statement. (See, Dible v. Haight Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 854–855.) Here, assuming the truth of the facts alleged, there are sufficient facts Plaintiff was compelled to self-publish. The 4AC details several examples of communications between Plaintiff and prospective employers who required to know the basis and details of his termination from the School, forcing Plaintiff to describe Defendant's decision as stated in the termination letter. (E.g., 4AC, at ¶¶ 18-19.) Defendants next argue the termination letter is privileged under Civil Code section 47(c), which applies to a 'communication concerning the job performance or qualifications of an applicant for employment...by a current or former employer of the applicant to, and upon request of, one whom the employer reasonable believes is a prospective employer of the applicant.' Here, there are no facts alleged in the 4AC or facts subject to judicial notice supporting the application of this privilege.

Finally, Defendants argue the basis for Plaintiff's termination was truthful and grounded in discretion and opinion. However, the 4AC alleges the termination letter contained misrepresentations regarding other former students (¶¶ 9, 11-12), presented a false picture of Plaintiff as a predatory teacher with a history of misconduct (ibid.), lacked reasonable grounds for believing in the truth of the accusations and recklessly disregarded Plaintiff's rights (id., at ¶ 10). Further, Defendants were provided the original unaltered texts and knew Plaintiff and the former student were not sexting and that the altered published texts were false and misleading. (Id., at ¶ 14.) Assuming the truth of these facts and in liberally construing the complaint, the statements included in the termination letter were not truthful, precluding demurrer.

Thus, the demurrers to the second and third causes of action are OVERRULED.

Defendant Ron Kim's demurrer to the fourth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state sufficient facts to constitute a breach of contract cause of action. In opposition, Plaintiff indicates he 'is willing to voluntarily withdraw those particular allegations.' (ROA 234 - Opp., at p. 2:23-26.) Motion to Strike Defendants move to strike several references to attorney fees, punitive damages and the fourth cause of action against Defendant Kim. (ROA 216.) Plaintiff filed a response, indicating he did not oppose the motion. (ROA 233.) Thus, the motion is GRANTED WITHOUT LEAVE TO AMEND.

Concluding Orders Defendants are ordered to: (i) file and serve an answer to the 4AC; and (ii) prepare and submit a dismissal on the fourth cause of action, by October 6, 2023.

The Court strikes from the Fourth Amended Complaint: - Paragraph 25, p. 11:2 '...including attorney fees...' - Paragraphs 34-35, p. 11:22-27: [The Fourth Cause of Action against Defendant Kim.] - Prayer, p. 12:15: 'Attorney fees and,' - Prayer, p. 12:16: 'Punitive damages' - Prayer, p. 12:24: 'Attorney fees and,' - Prayer, p. 12:25: 'Punitive damages' Calendar No.: Event ID:  TENTATIVE RULINGS

2978101  49 CASE NUMBER: CASE TITLE:  BISHOP VS FORTE [IMAGED]  37-2020-00043758-CU-DF-CTL If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendants are also ordered to serve written notice of the Court's final ruling on all appearing parties by September 26, 2023.

As previously reminded, the parties are to comply with Department 70's Policies and Procedures and provide courtesy copies of all motion paperwork.

Calendar No.: Event ID:  TENTATIVE RULINGS

2978101  49