Noel v. River Hills Wilsons, Inc.

• Decision Date: 05 December 2003
• Docket Number: No. D040367.,D040367.
• Citation: 7 Cal.Rptr.3d 216,113 Cal.App.4th 1363
• Parties: Brandon J. NOEL, Plaintiff and Appellant, v. RIVER HILLS WILSONS, INC., et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

7 Cal.Rptr.3d 216

113 Cal.App.4th 1363

Brandon J. NOEL, Plaintiff and Appellant, v. RIVER HILLS WILSONS, INC., et al., Defendants and Respondents.

No. D040367.

Court of Appeal, Fourth District, Division 1.

December 5, 2003.

Law Office of David A. Miller and David A. Miller, San Diego, for Plaintiff and Appellant.

Littler Mendelson and Michelle S. Park, San Diego, for Defendants and Respondents.

McCONNELL, P.J.

In this defamation action, plaintiff Brandon J. Noel appeals a summary judgment in favor of defendants River Hills Wilsons, Inc. (Wilsons) and its employee Shelly Santillan. Noel contends the conditional common-interest privilege of Civil Code¹ section 47, subdivision (c), amended in 1994 to be expressly made applicable to defamatory statements made without malice by a current or former employer to a prospective employer, did not arise because in making the statements, Santillan acted with malice. Alternatively, Noel contends the privilege did not arise because the statements were not "based on credible evidence," as that phrase is used in the amended statute.

We conclude the defendants proved the defamatory statements were made on a privileged occasion, and Noel presented no evidence from which a reasonable jury could infer malice. Further, as a matter of apparent first impression, we hold that in including the "based on credible evidence" language in the 1994 amendment to section 47, subdivision (c), the Legislature did not intend to make the common-interest privilege inapplicable in the employment reference context on a showing of the defendant's mere negligence. The trial court ruled correctly, and, accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2000 Noel filled out a background questionnaire for a position with GTE, for whom he had recently begun working on a contingent basis. The questionnaire required full disclosure of any criminal convictions. In response, Noel wrote that in 1994 he was convicted of a felony he described as "aiding and abeting [sic]/not fully involved," and he received "parole/probation to youth authority."

GTE retained ChoicePoint to conduct a background investigation of Noel. ChoicePoint contacted Noel's former employers, including Wilsons, where he worked for approximately two months in 1999. Santillan, a Wilsons manager, advised ChoicePoint that Noel left its employ because of "loss prevention issues," and his "rehire status" was "unfavorable." It is undisputed that Noel actually had no "loss prevention issues" with Wilsons, and Santillan mistakenly gave this information to ChoicePoint.

ChoicePoint included Santillan's information in an April 13, 2000 report to GTE. ChoicePoint also provided GTE with an April 25 addendum report regarding its criminal records search on Noel. The report revealed that in February 1995 Noel was convicted of carjacking, three counts of attempted robbery, two counts of exhibiting a weapon other than a firearm, two counts of residential burglary and four counts of robbery.² The addendum stated Noel was sentenced to the California Youth Authority (CYA), and was released on parole in March 1999.³ After receiving the addendum report, GTE notified Noel in writing that his employment was terminated.⁴ GTE provided Noel with copies of ChoicePoint's reports.

Noel sued Wilsons and Santillan for defamation and numerous other counts, based on Santillan's comments to ChoicePoint.⁵ Noel alleged that Santillan's comments caused the loss of his position with GTE and emotional distress. He sought compensatory and punitive damages.

The defendants moved for summary judgment, arguing Santillan's comments to ChoicePoint were privileged under the conditional common-interest privilege of section 47, subdivision (c), because she was responding to an inquiry by a potential employer and did not act with malice. In support of the motion, the defendants relied on Santillan's deposition testimony that about 30 minutes before ChoicePoint telephoned her, she received a telephone call from the manager of another Wilsons store, informing her she would be receiving an employment reference check for another former employee, an A. T., who Wilsons fired because of "loss prevention issues." Santillan explained that because she was waiting for that call, she mistakenly believed ChoicePoint was requesting employment information on A.T. instead of Noel.

The defendants also relied on Noel's deposition testimony that he did not have a bad relationship with anyone at Wilsons, and when he contacted Santillan after receiving a copy of ChoicePoint's April 21, 2000 report, she apologized for mistakenly giving out inaccurate information about him. Noel believed Santillan was sincere. He also testified she immediately offered him a job at Wilsons, which he accepted, but then later rejected. Santillan testified she offered Noel a job "[b]ecause I wanted to do anything I could to help him."

Additionally, the defendants argued that even if the common-interest privilege were inapplicable, the erroneous information Santillan gave ChoicePoint caused him no damage. The defendants relied on the deposition testimony of Patricia Eller, the GTE employee who terminated Noel's employment, that he was disqualified because he falsified his criminal history on the background questionnaire, and Santillan's comments did not influence the decision.⁶

The court granted the defendants' motion on the ground of the common-interest privilege. Judgment was entered on April 12, 2002.

DISCUSSION

I Standard of Review

A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) A defendant satisfies this burden by showing "`one or more elements of' the `cause of action' in question `cannot be established,' or that `there is a complete defense'" to that cause of action. (Ibid.)

"De novo review is used to determine whether, as a matter of law, summary judgment was appropriately granted. [Citation.] De novo review is [also used] to determine the soundness of a trial court's resolution of the meaning of a statute, as entailing a pure question of law." (Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 560, 130 Cal.Rptr.2d 26.)

II

Conditional Common-Interest Privilege

A

Defamation is effected either by libel or slander (§ 44), each of which is defined as a false and unprivileged publication (§§ 45, 46). Slander, with which we are concerned here, is defined as an oral communication that "[t]ends directly to injure [a person] in respect to his [or her] office, profession, trade or business...." (§ 46.)

Section 47, subdivision (c), whose predecessor was enacted in 1872, extends a conditional privilege against defamatory statements made without malice on subjects of mutual interest. (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1205, 31 Cal.Rptr.2d 776, 875 P.2d 1279.)⁷ "[I]f malice is shown, the privilege is not merely overcome; it never arises in the first instance." (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723, fn. 7, 257 Cal.Rptr. 708, 771 P.2d 406.) "It is the occasion giving rise to the publication that is conditionally privileged, i.e., under specified conditions the occasion gives rise to a privilege. If the privilege arises, it is a complete defense." (Ibid.)

In enacting section 47, subdivision (c), "the Legislature intended to codify without change the common law common-interest privilege. At common law, that privilege embodied a two-step analysis, under which the defendant bore the initial burden of demonstrating that the allegedly defamatory communication was made upon a privileged occasion, and the plaintiff then bore the burden of proving that defendant had made the statement with malice." (Lundquist v. Reusser, supra, 7 Cal.4th at p. 1208, 31 Cal.Rptr.2d 776, 875 P.2d 1279 [discussing § 47, subd. 3, the predecessor of § 47, subd. (c)].)

Courts have consistently interpreted section 47, subdivision (c) to apply in the employment context. (See Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995, 225 Cal.Rptr. 852.) In Manguso v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 200 Cal.Rptr. 535, this court held the common-interest privilege applied to uncomplimentary statements the plaintiff's former employer made to prospective employers. We explained that "[b]ecause the letter containing the alleged defamation was written by an educator, regarding qualifications of a particular teacher and directed to those prospective employers of that teacher, it is subject to a qualified privilege." (Id. at p. 580, 200 Cal.Rptr. 535; see also Neal v. Gatlin (1973) 35 Cal.App.3d 871, 877, 111 Cal.Rptr. 117 ["It is well established that a former employer may properly respond to an inquiry from a potential employer concerning an individual's fitness for employment, and if it is not done maliciously, such response is privileged."]; accord, Lesperance v. North American Aviation, Inc. (1963) 217 Cal.App.2d 336, 341, 31 Cal.Rptr. 873.)

In 1994 the Legislature amended section 47, subdivision (c) to expressly state the common-interest privilege applies to communications made by current or former employers to prospective employers. (§ 47, subd. (c), as amended by Stats.1994, ch. 364 (Assem. Bill No. 2778), § 1.) The statute currently reads in pertinent part: "This subdivision 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." (§ 47, subd. (c).)

The sponsor of Assembly Bill No. 2778 was the Los Angeles Unified School District Personnel...