Judge: Robert B. Broadbelt, Case: 21STCV00773, Date: 2023-03-07 Tentative Ruling

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Case Number: 21STCV00773    Hearing Date: March 7, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Gabriella “Gabz” Landman         

RESPONDING PARTY:       Plaintiff Angela Pagano

Demurrer to Second Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

BACKGROUND

Plaintiff Angela Pagano (“Plaintiff”) filed the operative Second Amended Complaint in this action on May 20, 2022, against defendants Artist Publishing Group, Artist Partner Group, Michael Caren, and Gabriella “Gabz” Landman.  Plaintiff alleges six causes of action for (1) breach of contract; (2) defamation; (3) retaliation under the Fair Employment and Housing Act; (4) intentional interference with prospective economic advantage; (5) preventing subsequent employment by misrepresentation under Labor Code section 1050; and (6) violation of Business and Professions Code section 17200, et seq.

Defendant Gabriella “Gabz” Landman (“Defendant”) now moves the court for an order sustaining her demurrer to Plaintiff’s first, second, and fourth causes of action.

DEMURRER

The court overrules Defendant’s demurrer to the first cause of action for breach of contract because it states facts sufficient to constitute a cause of action since (1) Plaintiff alleges that she was a third-party beneficiary of the agreement, and (2) the language of the Separation and Release Agreement is reasonably susceptible to the interpretation that the parties to the agreement intended the class of persons, of which Plaintiff was a member (i.e., past and current employees of Artist Publishing Group), to be third party beneficiaries thereof.  (Code Civ. Proc., § 430.10, subd. (e); SAC ¶ 60; SAC Ex. B, ¶¶ 4, 9; Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 821 [setting forth third-party beneficiary doctrine].)

The court overrules Defendant’s demurrer to the second cause of action for defamation because it states facts sufficient to constitute a cause of action since (1) Plaintiff has sufficiently alleged that Defendant made defamatory statements, and (2) the face of the Second Amended Complaint does not establish that the qualified privilege set forth in Civil Code section 47, subdivision (c) bars this claim.  (Code Civ. Proc., § 430.10, subd. (e).)

First, the court finds that Plaintiff has sufficiently alleged that Defendant made a defamatory statement about Plaintiff by writing that Plaintiff “would ‘be good if you wanna create the most toxic work environment ever and get sued.’”  (SAC ¶¶ 47, 66.)

“Libel is a false and unprivileged publication by writing…which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  (Civ. Code, § 45.)  “Though mere opinions are generally not actionable [citation], a statement of opinion that implies a false assertion of fact is actionable.”  (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702; Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 686 [“‘Statements of opinion that imply a false assertion of fact are actionable’”].)  To determine whether a reasonable factfinder could conclude that the challenged statement declares or implies a provably false assertion of fact, courts apply a totality of the circumstances test.  (Dickinson, supra, 17 Cal.App.5th at p. 686.)

The court finds that Defendant’s statement is not a nonactionable opinion.  Defendant prefaced the alleged statement with the assurance that she knew Plaintiff “very well” and therefore implied that her subsequent statement was made based on undisclosed and known facts.  (Dickinson, supra, 17 Cal.App.5th at p. 686 [“In considering the language of the statement itself, [courts] look at whether the purported opinion discloses all of the facts on which it is based and does not imply that there are other, unstated facts which support the opinion”]; John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1314 [“Actionable statements of opinion are ‘the mixed type, [where] an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant [but] gives rise to the inference that there are undisclosed facts that justify the forming of the opinion’”].)  Further, Defendant’s statement is not simply an expression of subjective judgment.  Instead, the court finds that Defendant’s statement that hiring Plaintiff would result in the creation of a toxic work environment and the employer’s “get[ting] sued” implies the factual assertions that (1) Plaintiff has created disharmony among employees and problems at her former employment, (2) Plaintiff is litigious and has the tendency to file unmeritorious lawsuits against an employer, or (3) Plaintiff engages in acts that are civilly actionable or illegal, each of which would have a tendency to injure Plaintiff in her occupation.  (Civ. Code, § 45.)

Second, the court finds that the face of the Second Amended Complaint does not establish that the privilege set forth in Civil Code section 47, subdivision (c) bars Plaintiff’s claim, because (1) Plaintiff has alleged facts establishing malice, and (2) the allegations do not establish that Defendant had a common interest in the communication.

A privileged publication is one 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.”  (Civ. Code, § 47, subd. (c).)  This privilege “applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.”  (Ibid.)

“‘[M]alice,’ within the meaning of Section 47, subdivision (c), is ‘ “established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights….” ’”  (Hui v. Starbaum (2014) 222 Cal.App.4th 1109, 1121.)  Here, Plaintiff has alleged that (1) Defendant made the defamatory statement with actual malice—i.e., with knowledge of its falsity, or alternatively, with a reckless disregard for its falsity, (2) Defendant’s statement was made with the knowledge that it would disrupt Plaintiff’s relationship with Electric Feel, and (3) it was Defendant’s expectation and intent that the statement injure Plaintiff economically.  (SAC ¶¶ 70, 52, 74.)  The court finds that these allegations are sufficient to allege malice within the meaning of section 47, and therefore Plaintiff’s second cause of action for defamation is not barred by the common interest privilege.  (King v. U.S. Bank National Association (2020) 53 Cal.App.5th 675, 701 [“The privilege applies only if the communication was made without malice”].)

Defendant contends that her statement constitutes a communication “between interested parties” because Defendant is Plaintiff’s former subordinate employee, and Austin Rosen was Plaintiff’s prospective employer.  (Opp., p. 8:6-9.)  However, Defendant has not pointed to any allegations showing that Defendant had a legitimate interest in the communication as required by section 47, subdivision (c).  The common interest privilege “is ‘recognized where the communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest.’  [Citation.]  The ‘interest’ must be something other than mere general or idle curiosity….”  (Hui, supra, 222 Cal.App.4th at pp. 1118-1119.)  Defendant has not pointed to any allegations supporting her contention that she shared a common interest in the hiring of Plaintiff by Electric Feel.

Moreover, to the extent that Defendant contends that her statement is protected by this privilege because it is a communication concerning Plaintiff’s job performance, the court disagrees.  The court acknowledges that this provision applies to statements made in the employment context.  However, this subdivision expressly states that it applies to communications concerning the job performance or qualifications of a job applicant “made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.”  (Civ. Code, § 47, subd. (c) [emphasis added].)  First, as set forth above, Plaintiff has alleged facts establishing that Defendant’s statement was made with malice within the meaning of this provision.  Second, Plaintiff has not alleged that Defendant was Plaintiff’s current or former employer.  (SAC ¶ 23 [alleging that Plaintiff was jointly employed by defendants Artist Publishing Group, Artist Partner Group, and Michael Caren].)  Third, Plaintiff has not alleged that Defendant made the alleged statement “upon request of” Electric Feel.  Instead, Plaintiff alleges that Defendant “initiated contact with Austin Rosen” by sending him the alleged defamatory statement.  (SAC ¶ 47 [emphasis added].)  

The court therefore finds that Plaintiff has alleged facts sufficient to constitute a cause of action for defamation against Defendant.

The court overrules Defendant’s demurrer to the fourth cause of action for intentional interference with prospective economic advantage because it states facts sufficient to constitute a cause of action since Plaintiff has based her claim on an independently wrongful act (i.e., that Defendant defamed Plaintiff to Electric Feel).  (Code Civ. Proc., § 430.10, subd. (e); SAC ¶ 87-88; Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1158 [“To establish a claim for interference with prospective economic advantage, therefore, a plaintiff must plead that the defendant engaged in an independently wrongful act”].)

ORDER

The court overrules defendant Gabriella “Gabz” Landman’s demurrer to plaintiff Angela Pagano’s Second Amended Complaint.

The court orders defendant Gabriella “Gabz” Landman to file an answer to plaintiff Angela Pagano’s Second Amended Complaint within 20 days of the date of this order.

The court orders plaintiff Angela Pagano to give notice of this ruling.

DATED:  March 7, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court