Judge Randolph M. Hammock, Case Number: 23STCV12356, Date: 2023-12-12 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV12356, Date: 2023-12-12 Tentative Ruling

Plaintiff Melani Cargle, M.D., obtained her medical degree from UCLA. Plaintiff alleges she is “African American, female, and queer,” and suffers from ADHD. While attending medical school, Plaintiff alleges a supervising physician, Dr. Louis Kwong, M.D., carried a concealed firearm in the hospital and frequently made racist, sexist, and homophobic remarks. Plaintiff complained to medical school leadership, but the issues were never resolved. Plaintiff alleges that in November or December of 2019, she published a detailed complaint of Dr. Kwong in the Orthopedic-Match Document, which resulted in an investigation of Dr. Kwong. Plaintiff alleges she was later passed for a residency at UCLA based on her complaints.

In March 2020, Plaintiff started her residency at USC/Keck. As part of her residency, Plaintiff was required to obtain employment with the County. Plaintiff alleges she faced abuse and racism at the hands of supervising physicians, and that the program failed to offer her accommodations for her ADHD. On May 19, 2022, the County provided Plaintiff with a Notice of Intent to Discharge. The County cited alleged “discourteous, unprofessional, and unethical conduct

After her discharge, Plaintiff made posts on Twitter about the program and started a GoFundMe. In or about June of 2022, Plaintiff alleges the County sent out a county-wide email, also posted on twitter, personally attacking Plaintiff by name.

Plaintiff now brings causes of action for (1) discrimination on the basis of race, sex, or sexual orientation, (2) harassment on the basis of race, sex, or sexual orientation, (3) discrimination on the basis of disability, (4) retaliation, (5) Violation of Health and Safety Code section 1278.5, (6) wrongful termination, (7) failure to reasonably accommodate, (8) failure to engage in the interactive process, (9) aiding and abetting, and (10) defamation.

CCP section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity. (Id. at 395-396.)

To satisfy the first prong of the two-prong test, a movant defendant must demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“[i]n the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech”].)

An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc. § 425.16(e).)

In support of her defamation cause of action, Plaintiff alleges Defendants defamed her by “falsely calling her a liar, discrediting her, damaging her reputation and credibility, and berating her (the “defamatory statements”) in a widespread internal email blast to all DHS employees, as well as a public post onto their official Twitter pages. The Twitter post was viewable by the entire world and general public.” (FAC ¶ 199.) As a result, “Dr. Cargle became the subject of a fierce and public social media debate about her legitimacy and the legitimacy of her claims from complete strangers. She was ridiculed openly on the internet and this caused her severe emotional distress, and damage.” (Id. ¶ 87.)

The County argues the defamation claim meets the first prong of the anti-SLAPP statute as a “written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” (CCP § 425.16(e)(3).) Defendant contends the County’s statements contained in the letter—shared with county staff by email and the general public by twitter post(s)—was made in a place open to the public or in a public forum. Defendant also contends the issues discussed therein were “made in connection with an issue of public interest.” (Id.) “Because the public has an interest in participants in the medical industry, public safety, and the integrity of the medical system,” the County argues, “the County’s Statement concerned a matter of public interest within the meaning of Section 425.16.” (Mtn. 16: 1-3.)

In Yang v. Tenet Healthcare Inc. (2020) 48 Cal. App. 5th 939, a surgeon brought a defamation claim against other healthcare professionals who had allegedly made false statements about the surgeon’s qualifications and competence. (Id. at 943.) In this context, the Court held the alleged defamation was protected conduct.

Plaintiff’s opposition does not address the first prong of the analysis, instead conceding this point and only offering argument on the second prong. The “failure to offer reasoned analysis of [an] issue constitutes a waiver.” (Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1009; see also In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“[t]he absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived.”])

Here, by making the statement(s) at issue, the County responded and attempted to dispute Plaintiff’s allegations against the hospital. The alleged defamatory statements implicate the competence of the County’s hospitals and patient safety, and therefore concern a public issue. Moreover, the County sent the letter broadly to county employees, and then posted the letter on various county-affiliated Twitter accounts. This allowed it to be viewed by the public at large.

The burden of showing a probability of prevailing on the claim rests with Plaintiff. “To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. In making this assessment it is the court’s responsibility…to accept as true the evidence favorable to the plaintiff […]. The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) 6 Cal. 5th 931, 940.)

“Defamation ‘involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.’ (Sonoma Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th 24, 37, 247 Cal.Rptr.3d 5.)

First, Defendant argues Plaintiff cannot meet her burden because the County is immune from common law defamation under Government Code section 815. Plaintiff counters that the County can be liable for defamation under section 815.2 on a theory of vicarious liability.

“Except as otherwise provided by statute,” a public entity “is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Govt. Code § 815(a).) But section 815.2(a) provides a caveat to the rule: “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Govt. Code § 815.2(a).) In other words, “section 815 establishes ‘the basic rule[ ] that public entities are immune from liability except as provided by statute.’ [Citation.] Thus, when it comes to common law tort injuries, [a public entity’s] liability can only be predicated on its vicarious liability, if any, for the wrongful acts of its employees, as authorized by section 815.2, subdivision (a).” (Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal. App. 4th 1507, 1514.)

“Vicarious liability ‘means that the act or omission of one person ... is imputed by operation of law to another,’ ” without regard to fault. [Citation]. For example, vicarious liability for torts is imposed by operation of law upon employers for acts of their employees within the course and scope of employment, or upon principals for the acts of their agents.” (Chee v. Amanda Goldt Prop. Mgmt. (2006) 143 Cal. App. 4th 1360, 1375.)

Attempting to insert vicarious liability into the pleading, Defendant argues that “[w]hile the Twitter remarks do not identify the individual(s) writing them, they were obviously written by DHS employees.” (Opp. 11: 17-18.) But this alone is insufficient. “The very fact that a public entity can only act through its employees makes it critical to analyze the nature of the alleged conduct in determining whether acts of public employees in the scope of their employment provide a basis for vicarious liability.” (Yee v. Superior Ct. (2019) 31 Cal. App. 5th 26, 40.) This court cannot analyze the nature or scope of the employee’s employment where no facts are alleged to do so.

“As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings.” (Med. Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal. App. 5th 869, 883.) “Because the issues to be determined in an anti-SLAPP motion are framed by the pleadings, we will not ‘insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified .... It is not our role to engage in what would amount to a redrafting of [a] complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it.’” (Id.)

Nonetheless, even if Plaintiff had alleged vicarious liability—or if it were appropriate for this court to read that unpled theory into the FAC—Plaintiff has failed to provide evidence to impose vicarious liability against the County under section 815.2.

Plaintiff’s opposition relies on the federal district court case of Garcia v. City of Merced (2008) 637 F. Supp. 2d 731, 744 (E.D. Cal. 2008) to suggest that the County is not immune from the common law tort of defamation. The case is inapposite.

There, a plaintiff brought claims against a city, city police department, county, county sheriff, county DA, and state special agent employee for assault and battery, abuse of process, false arrest, and defamation, among other things. The plaintiff, an attorney, alleged that the state special agent made defamatory statements “to the effect that Plaintiff is a known drug dealer and delivers drugs into jails by having his clients take the drugs into the jails.” (Id. at 755.) The Court denied the agent’s motion to dismiss the defamation claim because it could not determine at the pleading stage whether immunity applied. (Id. at 757 [“It is unclear at this stage in the litigation if Defendant Cardwood is entitled to immunity under Section 821.6 as a matter of law.”])

However, the Court did not address the City or County’s immunity to the defamation claim. Indeed, the defamation claim was asserted against the individual Defendant only (and not the public entity defendants). (Id. at 743.) Thus, the case says nothing as to a public entity’s liability for defamation.

Finally, there is no merit to Plaintiff’s contention that Defendant waived the immunity argument by failing to address section 815.2 in the moving papers. In effect, section 815.2 provides an exception to the general rule of absolute immunity provided for in section 815. And as discussed, section 815.2 is inapplicable based on the allegations in the complaint. Thus, it was unnecessary for Defendant to address this unpled theory in the moving papers. It is, after all, Plaintiffs burden on an anti-SLAPP motion to demonstrate the merits of her claim. She has not done so.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.