Sheppard v. Freeman

¶1I concur in part and dissent in part.

¶2I

¶3I concur in the majority opinion’s result with respect to its effective affirmance of the superior court’s denial of appellant Christopher G. Sheppard’s motion for leave to amend his complaint to allege that defendants were acting outside the course and scope of their employment. Since Sheppard’s proposed amendment sought to contradict the express allegations of his original complaint on an important substantive matter and was untimely as presented shortly before trial, the court acted within its discretion in denying Sheppard’s request to amend.

¶4II

¶5I dissent from the portion of the majority opinion reversing the summary judgment favoring defendants Lou Freeman, Roni Hardiman and Alan Godfrey on Sheppard’s cause of action for libel. In granting summary judgment as to libel, the superior court properly concluded Sheppard failed to present evidence raising any triable factual issue that defendants’ conduct was not immunized by the managerial privilege. The court also properly concluded Sheppard failed to present evidence raising a triable factual issue that any defendant except Godfrey published anything or that any publication was not privileged. The court’s references to those privileges effectively amounted to a determination that Sheppard failed to present any evidence sufficient to support a finding that Freeman, Hardiman or Godfrey acted with malice.

¶6This evidentiary record supported the superior court’s determination. In his declaration opposing the summary judgment motions, Sheppard stated he was a pilot/first officer for Southwest Airlines; Southwest had a policy requiring termination of the employment of any pilot not successfully completing the program for upgrade from first officer to captain; the final phase of the captain upgrade program was a flight test called the “Initial Operating Experience” (IOE); defendant Godfrey was a captain and “check airman” who administered Sheppard’s final IOE; and the reason given for Sheppard’s employment termination was his failing the IOE. In essence, Sheppard’s complaint and declaration acknowledged that Godfrey in the course and scope of his employment engaged in the “ ‘commonly necessary personnel management action’ ” of evaluating Sheppard’s job performance. (Cf. Reno v. Baird (1998) 18 Cal.4th 640 [76 Cal.Rptr.2d 499, 957 P.2d 1333].) Since for purposes of evaluating Sheppard’s performance Godfrey was acting in a managerial or supervisorial capacity, his actions, if not malicious, came within the managerial privilege (see, e.g., Aalgaard v. Merchants Nat. Bank, Inc. (1990) 224 Cal.App.3d 674, 684-686 [274 Cal.Rptr. 81]) or the conditional statutory privilege of Civil Code section 47, subdivision (c). In *351seeking summary judgment, defendants Freeman, Hardiman and Godfrey submitted their declarations as well as those of defendants Jon Tree and Rod Jones, all denying any wrongful activity or intent with respect to Sheppard’s performance evaluation. Although Sheppard’s opposing declaration asserted Godfrey’s written report of Sheppard’s performance was “false in all material respects,” Sheppard did not submit any evidence that Godfrey acted with malice in presenting such report. The record also contained no evidence connecting Freeman or Hardiman to publication of such report or any other defamatory statement, whether maliciously or otherwise.1 On this evidentiary record the superior court properly granted summary judgment favoring Freeman, Hardiman and Godfrey on Sheppard’s cause of action for libel. Hence, I would affirm the summary judgment as to libel.

¶7Ill

¶8I concur in the majority opinion’s result with respect to affirming the summary judgment favoring defendants Freeman, Hardiman and Godfrey on Sheppard’s causes of action for interference with contract, interference with prospective economic advantage, and intentional emotional distress. Such claims as alleged were based upon Sheppard’s libel cause of action. Given the evidentiary record compelling summary judgment favoring those defendants as to libel, summary judgment was also proper on Sheppard’s derivative ancillary claims.

¶9IV

¶10I concur in the section of the majority opinion reversing the portion of the judgment dismissing Sheppard’s cause of action for libel against defendants Tree and Jones. As the majority observe, Sheppard’s complaint adequately pleaded facts sufficient to state such cause of action and thus survive demurrer. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 827-828 [33 Cal.Rptr.2d 446]; Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 852 [200 Cal.Rptr. 674]; see also Davaris v. Cubaleski (1993) 12 Cal.App.4th 1583, 1587-1588 [16 Cal.Rptr.2d 330].)2 However, I dissent from the section of the majority opinion affirming the portion of the judgment dismissing Sheppard’s causes of action against Tree and Jones for interference with *352contract, interference with prospective economic advantage, and intentional infliction of emotional distress. Those claims as alleged were essentially derivative of Sheppard’s properly pleaded cause of action for libel and otherwise sufficient to overcome demurrer. For purposes of demurrer, the majority have not identified any sound analytical basis to treat such ancillary claims differently than Sheppard’s libel claim. Hence, I would reverse the entire portion of the judgment favoring Tree and Jones.

¶11It is here that the majority depart into an attempt to decide this case not on its specific record but instead by creating a sweeping new immunity relieving all defendant coemployees from liability for virtually all damages caused to a plaintiff employee or former employee—whether lost economic benefits, emotional distress, property damage or otherwise—by the defendant coemployees’ malicious intentional acts “relating to personnel actions” regardless whether committed within or outside the course and scope of employment (Maj. opn., ante, at pp. 342, 343, 347, 349.) The majority then carve out exceptions for the statutorily established torts of defamation and harassment plus “torts involving physical injury.” (Maj. opn, ante, at pp. 342, 343, 345, fn. 6, 348-349.) However, the rule adopted by the majority is unnecessary, contrary to settled law and sound policy, and ultimately unworkable. Indeed, in the common situation presented here where a plaintiff’s lawsuit consists of libel and derivative claims, the majority’s rule is rendered hollow by its exceptions and accomplishes little. The manifest practical and analytical problems engendered by the majority’s approach demonstrate that creation of such broad extended immunity is a task more properly left to the Legislature.

¶12A

¶13The rule adopted by the majority is unnecessary since, as explained, this case can be decided entirely on the record under settled law. The majority’s rule is also unnecessary because the Legislature has already spoken on the issue of coemployee immunity for torts against a fellow employee.

¶14The majority recognize the existence of the legislative scheme bearing on the legislatively declared personal right of protection from defamation (Civ. Code, § 43 et seq.). That legislative scheme both establishes the elements of actionable defamation and provides privileges from liability. Although the majority express concern that “all employees who dare to act or speak” in relation to personnel actions “will be subjected to the risks of costly, burdensome litigation, the outcome of which may not be determined for years” (maj. opn., ante, at p. 347), the Legislature has already immunized from liability those coemployees who act or speak without malice in relation *353to personnel actions. The possibility that nonmalicious coemployees may become embroiled in lengthy litigation before ultimately prevailing does not warrant granting blanket immunity to tortfeasors who maliciously cause plaintiff-victims to lose their economic livelihood. The law provides other remedies for meritless lawsuits short of blanket immunity to malicious tortfeasors. Further, the Legislature can enact additional such remedies.

¶15B

¶16In immunizing defendant coemployees from liability for intentionally inflicting emotional distress on a plaintiff employee based upon acts relating to personnel actions regardless whether the defendant coemployees were acting within or outside the scope of their employment, the majority appear to ignore the underpinnings of well-established case law involving employee suits against employers and supervisorial coemployees. In Shoemaker v. Myers (1990) 52 Cal.3d 1 [276 Cal.Rptr. 303, 801 P.2d 1054, 20 A.L.R.5th 1016] (Shoemaker), the Supreme Court noted “that injuries arising from termination of employment ordinarily arise out of and occur in the course of employment” and thus are generally subject to the exclusive remedy provisions of the Workers’ Compensation Act. (Id. at pp. 19-20.) However, concluding such exclusivity provisions did not bar all causes of action “arising from a discharge,” the Supreme Court stated: “Where the injury is a result of conduct, whether in the form of discharge or otherwise, not seen as reasonably coming within the compensation bargain, a separate civil action may lie.” (Id. at p. 20.) Recently, the Supreme Court indicated that harassment was outside the scope of the compensation bargain. (Reno v. Baird, supra,18 Cal.4th at pp. 645-647.) Characterizing harassment as consisting of “actions outside the scope of job duties which are not of a type necessary to business and personnel management,” the Supreme Court stated: “Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.” (Id. at pp. 646-647, italics added.) In Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 [262 Cal.Rptr. 842] (Fisher), the appellate court held that “by its very nature, sexual harassment in the work place is outrageous conduct as it exceeds all bounds of decency usually tolerated by a decent society. [^ Accordingly, if properly pled, sexual harassment will constitute the outrageous behavior element of a cause of action for intentional infliction of emotional distress against” a managerial coemployee. (Id. at p. 618.)

¶17Sheppard’s cause of action for intentional infliction of emotional distress against coemployees Tree and Jones was based primarily upon alleged malicious intentional acts including defamation. Certainly the alleged maliciously defamatory publication by Tree and Jones contravening the legislatively established statutory scheme against libel implicated considerations of *354substantial public policy and involved interests, beyond those of employer and employee, equivalent to the policy interests implicated by harassment. Hence, the alleged defamation would satisfy the outrageous behavior element of Sheppard’s cause of action for intentional infliction of emotional distress. (Cf. Fisher, supra,214 Cal.App.3d at p. 618.) Indeed, those malicious intentional acts allegedly committed by coemployees Tree and Jones would be actionable under such tort theory precisely because their conduct was outside the scope of the employment bargain. (Cf. Reno v. Baird, supra,18 Cal.4th at pp. 645-647; Shoemaker, supra,52 Cal.3d at pp. 19-20.)

¶18Moreover, for purposes of pleading interference with contract and interference with prospective economic advantage, the alleged defamatory acts of Tree and Jones violating statutory proscriptions satisfied the requirement there be conduct qualifying as wrongful “ ‘beyond the fact of the interference itself.’” (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393 [45 Cal.Rptr.2d 436, 902 P.2d 740]; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 340-341 [60 Cal.Rptr.2d 539].)

¶19C

¶20The majority attempt to temper their sweeping new immunity by stating it is not intended “to limit coemployee liability for torts involving physical injury.” (Maj. opn., ante, at p. 343, fn. 4.) However, the majority’s need to create such undefined exception to their rule of coemployee nonliability for intentional malicious torts reflects the lack of analytical underpinning for the broad immunity established by the majority.

¶21In his cause of action for intentional infliction of emotional distress, Sheppard pleaded he suffered “embarrassment, fear, worry, anxiety, loss of sleep, and related physical and emotional symptoms” and sought damages for those alleged “physical and emotional distress claims.” Although the superior court sustained the demurrers of Trees and Jones to such cause of action on the ground Sheppard’s sole and exclusive remedy was under the Workers’ Compensation Act, the majority fail to discuss the potentially dispositive narrower issue of workers’ compensation exclusivity. Further, in adopting their exception for a coemployee’s malicious intentional torts involving “physical injury,” the majority create additional analytical confusion by choosing a term of art (“physical injury”) no longer considered to be conceptually distinct from “emotional injury” for purposes of workers’ compensation exclusivity jurisprudence. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 750-754 [7 Cal.Rptr.2d 808, 828 P.2d 1195]; Davaris v. Cubaleski, supra,12 Cal.App.4th at pp. 1588-1589; Horn v. Bradco Internal, Ltd. (1991) 232 Cal.App.3d 653, 665-670 [283 Cal.Rptr. 721]; Hart v. *355National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1428-1429 [235 Cal.Rptr. 68].) Indeed, in Horn v. Bradco Intemat, Ltd., supra,232 Cal.App.3d 653, the appellate court specifically noted that for purposes of application of the exclusivity rule, the focus should be not upon “the nature of the injury suffered” by the plaintiff but instead upon the “more logically related” inquiry whether the defendant’s “actionable misconduct’ was “a normal incident of the employment relationship.” (Id. at p. 669, italics in original.)

¶22Moreover, although not defining the term “physical injury,” the majority’s exception for “torts involving physical injury” apparently reflects the majority’s acknowledgment that as a factual matter tortious conduct involving physical injury to the person may relate directly to a personnel action. For example, an employer may actively encourage or tacitly approve of coemployees’ malicious harassment (including battery) of a plaintiff employee as part of an ongoing scheme to culminate in termination of the plaintiff’s employment. To deal with such situations the majority, without explanation, create an exception for “torts involving physical injury” to the opinion’s rule of nonliability for intentional malicious acts “relating to personnel actions.” Two observations are pertinent. First, if the majority’s rule of nonliability as a matter of law is a product of legal analysis, one would expect the opinion to set forth the jurisprudential principles for the exception. However, the opinion essays none. The apparent reason is that the exception is a pure policy statement as is the rule of nonliability itself. Such policy-based rules are more properly within the province of the Legislature.

¶23Second, the exception the majority create does not go far enough. Under certain circumstances, intentional destruction of property may also constitute conduct “relating to personnel actions.” For instance, as part of a scheme to manufacture the discharge of a plaintiff employee for incompetence/inability to do the job, a defendant coemployee might maliciously. sabotage the plaintiff’s work product by tampering with or destroying equipment owned and used by the plaintiff in performing the job. Certainly the saboteur should be subject to a lawsuit for such property damage. However, the expanded immunity recognized by the majority would appear to bar such lawsuit because the property damage was factually related to the personnel action of employment termination, presumably did not constitute “physical injury,” and was civilly remediable under a cause of action arising under the historical common law tort action of trover/conversion rather than under statute. (See 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 610 et seq., p. 707 et seq.; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 660, p. 116.)

¶24D

¶25In discussing cases from other jurisdictions, the majority allude to “the need to contain burgeoning liability theories in this arena.” (Maj. opn., ante, *356at p. 344, fn. 5.) The majority also refer to unspecified “deleterious effects on business if disciplined employees may avoid Foley’’ s [Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [254 Cal.Rptr. 211, 765 P.2d 373]] bar by simply alleging malice and suing coemployees for damages on alternative tort theories, when the identical personnel action cannot give rise to tort damages against the employer.” (Maj. opn., ante, at p. 344.) However, contrary to the majority’s characterization, Sheppard’s lawsuit did not challenge a “personnel action” but instead simply alleged Sheppard’s coemployees maliciously committed various intentional torts causing him damage including his discharge.3 Further, recent cases indicate the Supreme Court is continuing its move toward narrowing liability theories in employment law, primarily by incremental measured steps rather than by creating sweeping new immunities. (See, e.g., Reno v. Baird, supra,18 Cal.4th 640; Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93 [69 Cal.Rptr.2d 900, 948 P.2d 412] (Cotran).)

¶26In the employment termination case of Cotran, supra,17 Cal.4th 93, the Supreme Court essentially limited judicial/jury review of the legitimacy of an employer’s decision to discharge an employee to whether the employer acted in good faith and on reasonable grounds—not whether the employee’s misconduct/poor job performance occurred as a matter of fact. {Id. at pp. 95, 100-101, 109.) Stated otherwise, the Supreme Court defined the role of the finder of fact as “to assess the objective reasonableness of the employer’s factual determination of misconduct.” {Id. at p. 103, italics in original.) In support of its holding, the Supreme Court recognized the employer’s interest in operating the business efficiently and profitably; the need for courts not to interfere with the employer’s legitimate exercise of managerial discretion; and the goal of freeing the employer from the threat of a jury second-guessing its business judgment. (Id. at pp. 101, 106.) However, the policies supporting narrowing the scope of judicial/jury review of an employer’s termination decision do not support blanket immunity for coemployees’ intentional malicious actions toward a plaintiff employee or former employee “relating to personnel actions.” On the contrary, in Cotran, supra,17 Cal.4th 93, the Supreme Court characterized the “axiom underlying the jurisprudence of wrongful termination” as “the need for a sensible latitude for managerial decisionmaking and its corollary, an optimum balance point *357between the employer’s interest in organizational efficiency and the employee’s interest in continuing employment.” (Id. at p. 106.) Certainly such balancing axiom does not countenance virtually every “nonstatutory” intentional malicious tort committed by a coemployee simply because of its “relation to personnel actions.”

¶27Further, although recognizing that blanket coemployee immunity may leave some damaged employees without a direct remedy, the majority conclude such concern is mitigated by the investigative requirement imposed on the employer under Cotran, supra,17 Cal.4th 93. (Maj. opn., ante, p. 346.) However, as discussed, the essence of Cotranwas to circumscribe the scope of judicial/jury review of an employer’s decision to discharge an employee. (Cotran, supra,17 Cal.4th at pp. 107-108.) In that vein, the investigation required under Cotranwas not necessarily so extensive as to discover and remedy the coemployees’ plot alleged by Sheppard. Instead, Cotransimply held that once it meets its limited investigative burden an employer will not be liable for wrongful termination even though the information from coemployees forming the basis for such decision was maliciously false. In sum, nothing in Cotransupports blanket immunity for the malicious intentional torts of coemployees.

¶28Finally, as noted by the majority (maj. opn., ante, pp. 345-346), the Supreme Court in Reno v. Baird, supra,18 Cal.4th 640, interpreted the Fair Employment and Housing Act as not imposing personal liability on supervisory employees for employment discrimination or attendant wrongful discharge based on discrimination. Instead, the Supreme Court held liability for discrimination in personnel management decisions was limited to employers. However, as discussed, the Supreme Court also expressly distinguished discrimination from harassment: “Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment.” (Id. at p. 646.) Prudence mandates caution in relying on Reno v. Baird, since that case was based primarily upon interpretation of a statute not at issue here. Nonetheless, instead of supporting the majority’s grant of blanket immunity to coemployees for malicious intentional acts “relating to personnel actions,” the analysis in Renosuggests the contrary. The alleged wrongful acts of defendant coemployees here were more analogous to harassment than to legitimate personnel management. Specifically, the alleged plot to cause Sheppard’s discharge did not involve “ ‘conduct of a type necessary for management’ ” of Southwest’s business but instead consisted of “ ‘conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.’ ” (Ibid.)

¶29*358E

¶30In sum, Sheppard’s lawsuit did not challenge a “personnel action” but instead alleged that Sheppard’s coemployees maliciously committed various intentional torts founded upon defamation and resulting in damage to Sheppard, including his discharge. The majority conclude that the “interest in allowing all employees the freedom to act and speak in relation to personnel actions without the threat of debilitating litigation outweighs the risk that a few employees will act maliciously and go undetected by their employers.” (Maj. opn., ante, at p. 347.) The majority also refer to “the purpose and balance struck in insulating employees from personal liability in order to allow, and indeed, encourage, employees to act and speak in relation to personnel actions.” (Ibid.) However, the Legislature has already struck the balance by granting immunity to all coemployees who act and speak without malice in relation to personnel actions. (Civ. Code, § 47, subd. (c).) If another balance is to be struck to create blanket immunity regardless of malice, the Legislature, not this court, should do the striking.

¶31A petition for a rehearing was denied November 12, 1998, and the petitions of both appellant and respondents for review by the Supreme Court were denied February 3, 1999. Kennard, L, and Brown, J., were of the opinion that the petitions should be granted.