Judge: Carolyn M. Caietti, Case: 37-2020-00043758-CU-DF-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Defamation Summary Judgment / Summary Adjudication (Civil) 37-2020-00043758-CU-DF-CTL BISHOP VS FORTE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 04/02/2024

Defendants The Bishop's School and Ron Kim's Motion for Summary Judgment or Summary Adjudication is DENIED.

Background Plaintiff Chad Bishop's Fourth Amended Complaint (4AC) alleges The Bishop's School terminated his 16-year employment as a teacher with the School after it became aware of a text exchange between Bishop and an adult, former student, who altered the text message to make it appear Bishop sent her 'a naked photograph of himself, coming out of the shower making it appear they were sexting.' The 4AC asserts: (i) breach of contract against the School; (ii) defamation against the School; and (iii) defamation against Ron Kim, the Head of School, based on a termination letter they sent to Bishop.

Preliminary Matters On June 13, 2024, the Court denied Plaintiff's ex parte application to file certain exhibits under seal, finding Plaintiff did not comply with the Rules of Court governing requests to seal. On June 13, 2024, Plaintiff filed a notice indicating the document lodged as P-Ex. 2 to Plaintiff's evidentiary appendix could be filed unsealed. (ROA 313.) It appears Plaintiff filed a complete evidentiary appendix, including P-Ex.

2, making an order to unseal unnecessary.

The Court has not considered any objections made within Plaintiff's response to Defendants' separate statement as the objections do not comply with California Rules of Court, rule (CRC) 3.1354.

Defendants' objections to Plaintiff's evidence (ROA 318) are sustained as to No. 6 as to, 'such a rule would be infantilizing to adult alumni and beyond the scope of the school's jurisdiction,' No. 13 and No.

33. All other objections are overruled.

Both parties have failed to comply with the laws and rules regarding separate statements. Motions for summary judgment must be accompanied by a separate statement 'setting forth plainly and concisely all material facts that the moving party contends are undisputed.' (C.C.P., § 437c(b)(1).) CRC 3.1350 similarly states that the separate statement should only include material facts and not any facts not pertinent to the disposition of the motion. (See, Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 874-75.) Here, Defendants' separate statement includes 428 facts and is 109 pages long; not so far off from the 100-page, over 600-facts separate statement in Beltran. Similarly, Plaintiff did not comply with a simple 'disputed' or 'undisputed' response as required by CRC 3.1350 and, as Calendar No.: Event ID:  TENTATIVE RULINGS

3076441  59 CASE NUMBER: CASE TITLE:  BISHOP VS FORTE [IMAGED]  37-2020-00043758-CU-DF-CTL discussed above, included objections that should have been made in a separate writing.

As the Beltran court encouraged, '[t]rial courts [] should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement – and an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court. Courts should also not hesitate to disregard attempts to game the system by the opposing party claiming facts are 'disputed' when the uncontroverted evidence clearly shows otherwise.' (Beltran, supra, at p. 876.) Thus, under the guidance in Beltran, the motion is denied on these procedural grounds. Notwithstanding and despite the challenges presented by the parties' separate statements, the Court considered and will rule on the substantive merits of the motion.

Discussion Statement of the Law In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) First Cause of Action for Breach of Contract Against The School The first issue is whether the school is entitled to summary judgment and/or adjudication because 'Plaintiff failed to perform under the contract.' (Motion, at p. 2:15-17.) The second issue is whether 'The School did not breach the contract.' (Motion, at p. 2:18-20.) These two issues attack the element of breach in Plaintiff's breach of contract cause of action. (CACI 303.) The determination of whether a material breach has occurred is generally a question of fact. (See, Brown v. Grimes (2011) 192 Cal.App.4th 265, 278.) Disputed facts exist. Whether Plaintiff complied with the School's rules, performed under his employment contract and whether the School had the requisite good cause for termination are factually disputed. As provided by Plaintiff, there were no rules governing relationships between teachers and adult alumni. Plaintiff further provided evidence that Kim, who was three months into his role as Head of School and under recent public scrutiny of other sexual-related claims against the School, made a hasty, uninformed decision to terminate Plaintiff's employment without the benefit of a full investigation into the facts concerning Plaintiff's interaction with this former student and with others dating back to 2010 and 2013. The evidence that creates this dispute includes but is not limited to the Declaration of Chad Bishop (Plaintiff's Ex. B), the deposition of Ron Kim (Plaintiff's Ex. 1), Kim and Ogden's notes from their conversation with Kendall Forte (Plaintiff's Ex. 112.) A trier of fact could find the School lacked good cause as defined by the employment contract and handbook to terminate Bishop's employment.

Second Cause of Action for Defamation Against Defendants The third issue is whether 'Plaintiff cannot establish that he actually self-published or was under a strong compulsion to self-publish any defamatory statements.' (Motion, at p. 2:23-3:3.) In liberally construing Plaintiff's evidence, disputed facts exist as to whether he self-published the termination letter and was under a strong compulsion to do so when applying for other teaching positions and at the San Diego Calendar No.: Event ID:  TENTATIVE RULINGS

3076441  59 CASE NUMBER: CASE TITLE:  BISHOP VS FORTE [IMAGED]  37-2020-00043758-CU-DF-CTL Police Officer's Association. (E.g., Bishop Decl., at ¶¶ 20-22.) Plaintiff was asked for his reasons for leaving past employments or if he had ever been terminated with an explanation for the reasons. (Id., at ¶ 20, see also, Defendants' Ex. 10.) Plaintiff responded. (Ibid.) A trier of fact could find that a truthful answer would require Plaintiff to relay the contents of what Kim wrote in the termination letter.

The fourth issue is whether 'any alleged defamatory statements self-published were privileged under Civil Code section 47(c)...' This section provides a privilege for statements made between a former employer and a prospective employer. (Motion, at p. 3:4-7.) Defendants have not met their initial burden that this privilege applies. As they readily acknowledged in the motion, Defendants did not make any statements about Plaintiff's termination to prospective employers. (Memo., at p. 26:14-16.) The fifth issue is whether 'Plaintiff did not plead these violations in the SAC.' (Motion, at p. 3:8-11.) Defendants have not met their burden as it is not at all clear what 'these violations' refer to or how what is alleged in the SAC is relevant to the allegations in the operative 4AC.

Punitive Damages The sixth issue is whether 'Plaintiff can establish by clear and convincing evidence that any officer, director or managing agent of the School, including Kim, acted with malice, fraud or oppression or ratified any malicious, fraudulent or oppressive behavior towards Plaintiff.' (Motion, at p. 3:14-18.) With regard to Kim, there is sufficient evidence creating a dispute on whether he acted with malice, fraud or oppression. As discussed above, Plaintiff's opposition includes evidence Kim, who was new to his role and with the School facing several other sexual-related claims by students, made an uninformed decision to terminate Plaintiff's employment and used other purported and previous incidents to create a narrative Plaintiff had a history of inappropriately touching or communicating with students. (See e.g., Bishop Decl., Kim's Deposition, Ex. 112.) A trier of fact could find Kim acted with intent to cause injury to Plaintiff or that his actions amounted to despicable conduct carried out with a willful and conscious disregard for Plaintiff's rights. (Civ. Code, § 3294(b).) With regard to the School, at most, Defendants recite the law on how employers are not liable for punitive damages unless the employer had advance knowledge of the unfitness of an employee or ratified or authorized the conduct. There is no evidence addressing whether the defamatory statements were 'not the result of the School's specific directions to them.' (Memo., at p. 27:17-18.) Notably, Kim's declaration is silent on whether or not he received such direction.

Concluding Orders For these reasons, the motion is DENIED in its entirety.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendants are ordered to serve notice of the Court's final ruling on all appearing parties by July 2, 2024.

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