MAMOU v. TRENDWest RESORTS INC.

Decision Date30 July 2008
Docket NumberNo. H031503.,H031503.
Citation81 Cal.Rptr.3d 406,165 Cal.App.4th 686
CourtCalifornia Court of Appeals Court of Appeals
PartiesTamer MAMOU, Plaintiff and Appellant, v. TRENDWEST RESORTS, INC., et al., Defendants and Respondents.

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Duckworth Peters Lebowitz, Noah D. Lebowitz, McGuinn, Hillsman & Palefsky, John A. McGuinn, San Francisco, for Plaintiff and Appellant Tamer Mamou.

Orrick, Herrington & Sutcliffe, Robert S. Shwarts, Erin M. Connell, San Francisco, for Defendants and Respondents Trendwest Resorts, Inc., et al.

RUSHING, P.J.

Plaintiff Tamer Mamou sued his former employer, Trendwest Resorts, Inc. (Trendwest), charging it with employment discrimination on account of his Syrian national origin and with retaliation for his resistance, as he alleged, to his supervisors' stated plans to discriminate against employees taking sick leave. Mamou also alleged that Trendwest defamed him by telling former coworkers that he had been discharged for theft and poor performance and was continuing to engage in reprehensible conduct by using misappropriated customer information to compete with Trendwest. Trendwest moved for summary judgment, relying pervasively on the premise that the decision to dismiss Mamou was made not by his immediate supervisors, who might have possessed the requisite discriminatory or retaliatory motives, but by more remote managerial officers as to whom there was no evidence of any such motive. Trendwest also contended that any defamatory statements its managers might have made were shielded by the statutory privilege for statements between persons with a common interest in the subject matter. The trial court granted the motion and entered judgment for Trendwest. We hold that this was error. The record presents triable issues of fact on the discrimination claims in view of evidence that the decision to dismiss Mamou was in fact made by his own immediate supervisor in consultation with his supervisor, and that the former was angered by Mamou's open resistance to his expressed desire to discriminate against workers taking medical leave, while the latter was heard to refer to the “fucking rag heads” whom the company needed to “get rid of.” The record also presents triable issues with respect to the existence of the malice that will overcome a statutory privilege, as reflected in evidence from which a factfinder could reasonably infer that the authors of at least some of the defamatory statements knew they were false when made and, in one case, had vowed to “get” or “get even” with Mamou. Accordingly, we will reverse the judgment.

I. Background

A. Trendwest
1

Trendwest sells vacation timeshares under the name Worldmark, The Club. 2 More precisely, Trendwest sells credits with which owners can purchase vacation packages at various resorts. It markets these credits principally through sales presentations at offices in various locations. When successful, the presentations result in the buyer's execution of a sales contract. The buyer often has a statutory right to rescind the contract within a specified period. Thus in California, if specified conditions are present, a time-share purchase contract is “voidable by the purchaser, without penalty, within seven calendar days” after specified events. ( Bus. & Prof.Code, § 11238, subd. (a); see former Bus. & Prof.Code, § 11024, subd. (a), repealed by Stats.2004, ch. 697, § 12 [three-day rescission period].) During this period the buyer is vulnerable to what one Trendwest witness called “poaching” by other sellers of credits. A secondary market exists for the resale of credits through businesses existing for that purpose. Trendwest does not participate directly in the resale market, but apparently charges a fee for processing any resulting transfers, and at least arguably benefits from the added value and reduced risk to buyers resulting from the existence of the resale market.

Trendwest operates in the western United States, Mexico, Canada, Australia, and Fiji. Its offices are administered in various regions. This case largely concerns the Northern California region, which covers somewhere between six and twelve sales offices, including Roseville, San Jose, and Walnut Creek. 3 Trendwest sets sales and efficiency goals for each office, and a sales and budget and efficiency standard for the region. The sales operation in each office is headed by a project director. Project directors, and apparently some other employees, are or may be compensated, in whole or part through incentive and other payments apparently amounting in effect to commissions.

In 2002, Trendwest was acquired by Cendant Corporation (Cendant). In August 2003, ownership of Trendwest was transferred to a wholly owned subsidiary of Cendant Timeshare Resorts Group (CTRG), some of whose officers were involved in some of the events described below. CTRG apparently has its principal offices in Florida. Subsequent events in the entity's corporate history need not concern us here.

B. Mamou's Employment

Mamou alleged, and it has not been disputed, that he is a naturalized United States citizen of Syrian birth. Trendwest hired him in 1992 as a sales representative in its Santa Clara office. Over the next five years he received a series of promotions, from assistant manager to sales manager to San Jose office project director, the top sales position in that office. In 2000 he was promoted to regional sales director for the Northern California region. In that position he oversaw six sales offices, more or less. (See fn. 2, ante.) He held this position until early 2003, with one complication: In February 2002 he agreed, at the request of Regional Vice President of Operations John Nye, to help out in the San Jose office, whose project director had just been removed. Mamou thus assumed the role of acting project director for San Jose, and apparently was classified as such for a brief period. 4 He then apparently returned to the regional director position until early 2003. At that time he left the regional director position and officially became San Jose project director because, according to him, he was told that Trendwest was reducing the compensation for the regional position. He later asserted that these statements had been false and were made to induce him to leave the position, which was then filled by Larry McDowell, who Mamou believed got a materially better compensation package than had been offered to him. 5 McDowell was replaced in a few months by William Brown.

In November 2003, Kevin Fiore became regional vice president for Northern California. He was responsible for the “development side” of Trendwest's business in the region, including sales, marketing, finance, administration, and human resources. In March of 2004, he asked Mamou to assist with the company's Walnut Creek office, which the parties agree was “struggling.” Eventually it was agreed that Mamou would assume the role of project director for that office while remaining the project director in San Jose. He was to receive full compensation as Walnut Creek project director, plus a 25 percent “override and efficiency bonus” for the San Jose office. Mamou declared that they further agreed “that this arrangement would stay in place for the entirety of the Second Quarter of 2004-meaning, under Trendwest's fiscal calendar, that the arrangement would continue through June 18. 6 Fiore, however, terminated the arrangement around mid-May when, as he testified, [I]t wasn't working. Him running two stores, both stores were not performing at or even close to what our expectations were.” Mamou testified, however, that the Walnut Creek store won a $50,000 prize for the most improvement in the company during the second quarter of 2004. Fiore denied any recollection on this point.

C. Regional Director Position

In the spring of 2004, the Northern California regional director position again became vacant and Trendwest posted an opening for it. Fiore was responsible for filling the position. On May 12, Mamou notified Fiore that he was interested in the position. He submitted a résumé and a skills assessment form.

On May 26, 2004, Fiore discussed the opening over lunch with Carter Lee, then the project director for an office in Federal Way, Washington. Two days later, apparently, Fiore conducted what he called an “interview” of Mamou, which he said lasted from 30 to 60 minutes. Mamou testified in deposition that there was no real job interview, but “just a visit,” lasting “probably five to ten minutes max.” He also described it as a “five minute brush-off interview.” In an e-mail written about a month after the fact, he described it as “a 20- to 25-minutes brush-off interview....” He testified that immediately after the interview he called Richard Folk, another regional director, who told him that Carter Lee had already been chosen for the position.

Trendwest asserts that Fiore only made his decision after “consulting with other senior managers” and “comparing the financial performance of the two candidates....” The only evidence of consultation, however, is Fiore's testimony that he asked Ted Curtis for a recommendation and asked other two other people “how is Carter as a leader.” And as Mamou points out, the only evidence that Fiore examined Mamou's performance records was Fiore's testimony that he “would have” looked at such records, and the further response, when pressed, that he “believe[d] he looked at “historical documents” of Mamou's performance in the regional position. 7 On May 31, Fiore e-mailed several Trendwest managers that he had “decided to offer the job to Carter.”

Apparently about this same time, Mamou was assigned exclusively to the Walnut Creek office. Around mid-May, according to him, Trendwest stopped paying him the 25 percent incentive from the San Jose office. He asserts that this violated the agreement with Fiore under which he would receive...

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