Deaile v. General Telephone Co. of California

• Decision Date: 22 July 1974
• Citation: 40 Cal.App.3d 841,115 Cal.Rptr. 582
• Court: California Court of Appeals Court of Appeals
• Parties: Helen J. DEAILE, Plaintiff and Appellant, v. GENERAL TELEPHONE COMPANY OF CALIFORNIA, Defendant and Respondent. Civ. 42176.

Page 582

115 Cal.Rptr. 582

40 Cal.App.3d 841

Helen J. DEAILE, Plaintiff and Appellant, v. GENERAL TELEPHONE COMPANY OF CALIFORNIA, Defendant and Respondent.

Civ. 42176.

Court of Appeal, Second District, Division 5, California.

July 22, 1974.

Demler, Perona, Langer & Bergkvist by Peter A. Lewine and Major Alan Langer, Long Beach, for plaintiff and appellant.

Morgan, Wenzel & McNicholas, Los Angeles, for defendant and respondent.

STEPHENS, Associate Justice.

Plaintiff (Helen J. Deaile) brought suit against defendant (General Telephone Company) for defamation, intentional infliction of emotional distress, and wrongful discharge from employment. Plaintiff appeals from a judgment entered by the trial court which ordered that plaintiff take nothing by her complaint and that defendant be awarded costs.

Plaintiff began working for defendant's predecessor in 1946, and at the time of the incidents involved in the instant controversy she had achieved the position of chief operator (a managerial position) in the Redondo Beach facility of defendant company. On Friday, May 1, 1970, plaintiff's immediate superior, John Pettey, became aware that plaintiff claimed to have injured her back and was absent from work. Pettey attempted to contact plaintiff. Later that same day he called her at her residence several times but the phone was not answered. Pettey also made several phone calls to plaintiff at her residence on Saturday, Sunday and Monday and received no response. Plaintiff returned to work on the following Tuesday. On this day Pettey spoke with plaintiff, though he could not recall the substance of the conversation. In any event, the subject of the absences was not discussed. On May 15, a Friday, Pettey spoke to plaintiff and asked her where she had been on Friday, May 1, the following weekend, and Monday, May 4. At first plaintiff stated that she had gone to her chiropractor on Friday and Monday and had been home on Saturday and Sunday. However, after Pettey told her of his calls and asked to speak to her doctor, plaintiff admitted that she had gone to the mountains and asked Pettey to 'cover' for her. Pettey refused. Plaintiff then asked Pettey if she could change the time off from sick status to excused time. Pettey was noncommital but said he would check. Pettey and his superior, Bob McClendon, did some further investigating in order to ascertain whether similar incidents had occurred in the past with respect to plaintiff's absences from work. McClendon testified that he had been informed once when plaintiff was absent from work that she was snowed-in in the mountains and was taking another day of vacation time. On checking, McClendon discovered that the time off had not been originally reported as vacation time but was later changed to reflect that it was taken as vacation time. Other instances of similar conduct were averted to by Pettey and McClendor in their testimony but were not developed.

Over the May 15 weekend, the substance of Pettey's conversation with plaintiff and the results of his and McClendon's investigations were reported to their superiors. The decision to discharge plaintiff was made by defendant. On the following Monday, plaintiff was told that she could either retire, quit, or be fired. Plaintiff chose retirement.

At this point in time, it was apparently decided that the reasons for plaintiff's forced retirement would be confined to management personnel. However, approximately a week later Pettey and McClendon met with the supervisors ¹ of the facility which plaintiff had headed. The meeting was called to correct some rumored misinformation regarding the reasons for plaintiff's forced retirement. During the meeting, Pettey and McClendon told the supervisors that plaintiff had committed a breach of ethics in 'that sick benefit papers were put in' when they shouldn't have been; that plaintiff had falsified records; that plaintiff's actions were akin to thievery; and that there were indications that this was not the first time plaintiff had done these things. The supervisors were also told to relate this to the operators ² if the operators had misconceptions ³ as to what had happened. Subsequently, pursuant to defendant's instructions, one of the supervisors told a number of operators the reasons for plaintiff's forced retirement.

In the main, plaintiff contends (1) the defense of privilege proffered by defendant was not properly established; (2) the court erroneously dismissed plaintiff's second and third causes of action; and (3) the court erroneously denied plaintiff's motion to compel answers to certain of plaintiff's interrogatories. ⁴

In considering the first argument that the defense of privilege was not properly established, we note that the qualified or conditional privilege fould in Civil Code section 47, subdivision 3 ⁵ and relied upon by defendant 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. (Fairfield v. Hagan, 248 Cal.App.2d 194, 56 Cal.Rptr. 402.) The undisputed evidence shows that all recipients of the allegedly libelous communications were in the employ of defendant and worked at the same facility which plaintiff had managed, or were plaintiff's superiors. Furthermore, the factors surrounding plaintiff's forced retirement were only disseminated in an effort to preserve employee morale and job efficiency. Under these circumstances the recipients, as well as defendant, were 'interested' persons within the meaning of section 47, subdivision 3 of the Civil Code. (See Brewer v. Second Baptist Church, 32 Cal.2d 791, 197 P.2d 713 (members of church have common interest in church matters); De Mott v. Amalgamated Meat Cutters, 157 Cal.App.2d 13, 27, 320 P.2d 50 (statements to union members by union officials in dispute over policies and administration are privileged); Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 47 N.E.2d 595, 599 (statement by supervisor to field agents that a fellow agent was guilty of forgery is privileged); See, Biggins v. Hanson, 252 Cal.App.2d 16, 20, 59 Cal.Rptr. 897.) However, the privilege available under section 47, subdivision 3 may be lost if the defendant abuses the privilege by excessive publication or the inclusion of immaterial matters which have no bearing upon the interest sought to be protected, (Biggins v. Hanson, Supra; Prosser, The Law of Torts (4th ed.), § 115, p. 792) or if the uttered statements are actuated by malice. (Cunningham v. Simpson, 1 Cal.3d 301, 308, 81 Cal.Rptr. 855, 461 P.2d 39.)

In the instant case, the allegedly defamatory statements were clearly privileged, and there is substantial evidence that their utterance to defendant's employees was not occasioned by 'actual' or 'express' malice on the part of defendant. These statements all related to the reasons for plaintiff's forced retirement. As such, they were of a kind reasonably calculated to protect or further a common interest of both the communicator and the recipient. (Fairfield v. Hagan, Supra; De Mott v. Amalgamated Meat Cutters, Supra; Cunningham v. Simpson, Supra.)

Nor do we accept plaintiff's contention that malice existed to defeat the privilege because defendant did not have reasonable grounds or 'probable cause' to believe the uttered statements to be true. (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 418, 42 Cal.Rptr. 449, 398 P.2d 785; Brewer v. Second Baptist Church, Supra, 32 Cal.2d at p. 799, 197 P.2d 713.) The question of defendant's state of mind was one of fact for the jury to determine. (Brewer v. Second Baptist Church, Supra.) In the instant case, plaintiff claimed to have suffered a back injury which precipitated her absence from work. Then, in order to show that defendant did not have a reasonable belief that the allegedly libelous statements were true, she has tenaciously seized upon a statement by Pettey that he had a doubt or two as to whether plaintiff had in fact injured her back and on this point had not reached a conclusion one way or the other. However, the question of whether plaintiff had in fact injured her back is not material to the issue of the propriety of defendant's conduct. Pettey testified that plaintiff told him a lie, admitted to him that she had lied, asked him to cover up the situation and to allow her to change the sick-benefit status to excused time off. At trial, plaintiff admitted that she had been at the mountains on Friday, May 1 through Monday, May ⁴.

Plaintiff also takes exception to defendant's statement that she had falsified records in the past in the same manner as had caused her forced retirement. However, defendant's agent, McClendon, testified that he had become apprised of a previous instance when a business record relative to sick pay had been changed by plaintiff. Both Pettey and McClendon testified that there were other indications of similar conduct by plaintiff, although they were not called upon to elaborate. Once the defense of privilege is made out, as here, the plaintiff has the burden of defeating it by showing that the privilege has been abused or that malice existed on the part of the defendant. (Freeman v. Mills, 97 Cal.App.2d 161, 167, 217 P.2d 687; Witkin, Summary of Calif. Law (8th ed.), Torts, § (aa)(302), pp. 2572--2573.) Plaintiff failed to meet that burden. Plaintiff apparently labored under the misconception that the type of malice which is implied by law from the publication of defamatory materials (Witkin, Summary of Calif. Law, Torts, § 271, pp. 254--2543) also operates to salvage her cause of action after defendant made out a case for the assertion of the privilege found in Civil Code section 47, subdivision 3. As stated in Freeman v. Mills, 97 Cal.App.2d 161, 167, 217 P.2d 687, 691: 'Where it appears without conflict that the publication, if made without malice, was a privileged communication to an interested person within...