Judge: Michelle Williams Court, Case: 21STCV35438, Date: 2022-08-24 Tentative Ruling
Case Number: 21STCV35438 Hearing Date: August 24, 2022 Dept: 74
21STCV35438 JASON
TYMINSKI vs TFI FRIDAYS, INC.
Defendants TGI Fridays, Inc., Bob Belmont, and Garret
Devereux’s Demurrer to Plaintiff’s Complaint
TENTATIVE RULING:
The demurrer is OVERRULED.
Defendants may file an answer(s) within 15 days.
Background
On September 27, 2021, Plaintiff Jason Tyminski
filed this action against Defendants
TGI Fridays, Inc., Bob Belmont, and Garret Devereux. The complaint asserts
causes of action for: (1) violation of Labor Code section 1102.5; (2) wrongful
termination in violation of public policy; (3) defamation and defamation per
se; (4) failure to pay wages/minimum wages & liquidated damages; and (5)
failure to pay wages at time of termination. Plaintiff alleges he began working
for Defendants as a manager in 2003 and served as the Director of Operations
from 2013 to his termination in September of 2020.
Demurrer
On
February 17, 2022, Defendants refiled their rescheduled demurrer to the third
cause of action arguing the complaint fails to allege sufficient facts to state
a claim for defamation and the common interest privilege applies.
Opposition
In opposition, Plaintiff argues the complaint
adequately alleges publication, actionable false statements that can be proven
or disproven, the common interest privilege is not apparent on the face of the
complaint, and Plaintiff adequately alleged malice to defeat any such
privilege.
Reply
In reply, Defendants reiterate their
argument that Plaintiff has not adequately alleged publication or actionable
statements, the common interest privilege applies, and the allegations of
malice are insufficient.
Meet and Confer
Defendants submitted the declaration of Shaina L. Kinsberg, which satisfies the
requirements of Code of Civil Procedure
section 430.41.
Discussion
Standard
A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers,
courts read the allegations liberally and in context. In a demurrer proceeding,
the defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Code
Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only
allege ultimate facts sufficient to apprise the defendant of the factual basis
for the claim against him. (Semole v.
Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege
evidentiary facts noting plaintiff’s proof. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 872.) A “demurrer does not, however, admit contentions, deductions or
conclusions of fact or law alleged in the pleading, or the construction of instruments
pleaded, or facts impossible in law.” (S.
Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)
A
special demurrer to a complaint is appropriate when the grounds of the pleading
are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f);
Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor
demurrers based on uncertainty, which the court strictly construes even when
the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14
Cal.App.4th 612, 616.)
Defamation – Third Cause of Action
Defendants demur to the third cause of action for
defamation. “The elements of a defamation claim are (1) a publication that is
(2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to
injure or causes special damage.” (Wong v. Jing (2010) 189 Cal.App.4th
1354, 1369.)
Defendants first argue Plaintiff “has failed to allege the crucial
element of publication of the alleged defamatory statements – namely, that the
statement was made to a person other than Plaintiff.” (Dem. at 5:8-9.) The complaint alleges “Defendants,
including individual Defendants Bob Belmont, Paul Blough, and Garrett Devereux,
agents of Employing Defendants, published untruthful oral and written
statements concerning Plaintiff beginning in or near March of 2020 and
continuing until after Plaintiff’s termination. Specifically, Defendants
falsely published that Plaintiff “grossly mismanaged the closing down of” a TGI
Fridays restaurant located in Westminster, and that Plaintiff “failed to
properly close down the Westminster restaurant…”, which resulted in a power
loss to all of the walk-in refrigerators and freezers. Defendants further
published that TGI Fridays, Inc. incurred damages of over $100,000, which were
directly attributable to Plaintiff, and due to Plaintiff’s ‘gross negligence and
complete mismanagement of the situation.’ Plaintiff is informed and believes
that Defendants additionally published other related, untruthful statements
regarding Plaintiff.” (Compl. ¶ 25.)
Defendants
do not cite any authority for the proposition that a plaintiff must allege
“where and to whom” the statements were published. (Dem. at 5:12-14.)
Plaintiff’s allegation that the statements were “published” is sufficient at
the demurrer stage. (See e.g. Farr v. Bramblett (1955) 132 Cal.App.2d
36, 46 (“The verb ‘publish’ is a term of art in the law of libel and in itself
imports that communication to others which is essential to the tort. . . . it
is sufficient to state, generally, that the same was published”) (citations
omitted) overruled on other grounds by Field Research Corp. v. Sup. Ct.
(1969) 71 Cal.2d 110, 114.) Code Civ. Proc., § 460 (“In an action for libel or
slander it is not necessary to state in the complaint any extrinsic facts for
the purpose of showing the application to the plaintiff of the defamatory
matter out of which the cause of action arose; but it is sufficient to state,
generally, that the same was published or spoken concerning the plaintiff; and
if such allegation be controverted, the plaintiff must establish on the trial
that it was so published or spoken.”).) Moreover, Defendants are aware to whom
they made the alleged statements. (Okun v. Superior Court (1981) 29
Cal.3d 442, 458 (“Less particularity is required when it appears that defendant
has superior knowledge of the facts, so long as the pleading gives notice of
the issues sufficient to enable preparation of a defense.”).) The Court finds
the allegations of publication sufficient and need not address the alternative
allegation of self-publication to overrule the demurrer.
Defendants
argue the statements alleged cannot support a defamation claim as a matter of
law because they involve Plaintiff’s termination and are therefore not
actionable. (Dem. at 5:17-6:12.) Defendants cite Jensen v. Hewlett-Packard
Co. (1993) 14 Cal.App.4th 958, which involved an internal performance
evaluation as a statement of opinion, Polygram Records, Inc. v. Superior
Court (1985) 170 Cal.App.3d 543, which involved a joke told by the late
comedian Robin Williams, and Foley v. Interactive Data Corp. (1988) 47
Cal.3d 654, which did not involve defamation.
In
opposition, Plaintiff cites Gould v. Maryland Sound Industries, Inc.
(1995) 31 Cal.App.4th 1137 to contend the complaint adequately alleges a false
statement of fact rather than opinion. The Court finds Gould applicable
and Defendants’ attempt to distinguish the case unpersuasive.
Plaintiff
alleges Defendants falsely stated Plaintiff “failed to properly close down the
Westminster restaurant, which resulted in a power loss to all of the walk-in
refrigerators and freezers. Defendants further published that TGI Fridays, Inc.
incurred damages of over $100,000, which were directly attributable to
Plaintiff, and due to Plaintiff’s gross negligence and complete mismanagement
of the situation.” (Compl. ¶ 25.) In Gould, a senior project manager
“informed persons employed by another company Gould ‘made a $100,000 error in
the estimating’ of an MSI bid.” (Gould, supra, 31 Cal.App.4th at 1153.)
The court held this was an actionable statement: “We reach a different conclusion
as to Leister's accusation Gould made a $100,000 mistake in estimating an MSI
bid. This statement would tend to injure Gould by imputing to him incompetence
in his trade. [Citations]. Furthermore, it is a statement of fact susceptible
to proof or refutation by reference to concrete, provable data.” (Id. at
1154.) Similarly, whether Plaintiff’s conduct caused “a power loss to all of
the walk-in refrigerators and freezers,” thereby costing his employer
$100,000.00, are objective facts capable of a provable false meaning that would
tend to injure him by imputing to him incompetence in his management job. The
allegations of gross-mismanagement causing specific harm would be defamatory.
(See also Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 709
(“The alleged statements—that Gallant is incompetent—are defamatory.”)
disapproved on other grounds by Reid v.
Google, Inc. (2010) 50 Cal.4th 512.)
Finally,
Defendants invoke the common interest privilege. (Dem. at 6:13-7:19; Reply at 6:4-7:14) Pursuant to Civil Code section
47(c), a publication is privileged if it is made “[i]n 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.”
“Where the existence of a privilege is not revealed
on the face of the complaint, privilege may not be asserted by demurrer but
must be pleaded as an affirmative defense.” (Pulver v. Avco Financial
Services (1986) 182 Cal.App.3d 622, 639.) Like the defendant in Pulver, Defendants
concede the complaint does not allege facts supporting the common interest
privilege: “Plaintiff . . . completely
fails to identify where and to whom the statements were made to.” (Dem at
5:12-14. See Pulver, supra, 182 Cal.App.3d at 639 (“defendant argued
that ‘without knowing the exact substance of the statement, it cannot be
determined whether the statement itself may be privileged by statute. Civil
Code § 48(a)(b) [sic].’ Defendant thus conceded that privilege does not appear
on the face of the pleading.”).) On its face, the complaint does not
affirmatively establish that the only individuals to whom the statements were
published were “person[s] 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.” (Civ. Code §
47(c).) Accordingly, the privilege does not appear on the face of the complaint
and cannot serve as basis for the demurrer.
The demurrer is OVERRULED.
The Court agrees that, had the face of the
complaint revealed the applicability of the qualified common interest
privilege, Plaintiff’s summary allegations of malice, (Compl. ¶¶ 56-57), would
not be sufficient. (See e.g. Tschirky v. Superior Court
(1981) 124 Cal.App.3d 534, 538–539 (“Mere allegations of malice are not
sufficient actual facts must be alleged, unless they are apparent from the
statement itself. Plaintiff alleged only that ‘(t)he aforesaid publication was
published by Defendant TSCHIRKY because of his feelings of ill-will toward
Plaintiff and his desire to oppress Plaintiff and, therefore, Plaintiff is
entitled to punitive damages ....’ No facts are alleged to support plaintiff's
conclusion, nor are they apparent from the advertisement.”) (citations
omitted).)