Larks v. Husteads

Filed 4/26/07 Larks v. Husteads CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A tow truck driver employed by his brothers company was terminated for allegedly stealing money from a customers car. The driver had a long history of keeping company money collected from customers, which the driver called borrowing without permission. Following his termination, the drivers brother (and former boss) allegedly told a family member and a prospective employer that the driver was a thief. The driver sued his brother and the company for slander and related claims. The trial court granted defendants summary judgment motion. The court found undisputed evidence that the alleged statements were both true and privileged. We affirm the judgment.

facts[1]

A. Plaintiffs employment with Husteads

Plaintiff Gordon E. Larks was a tow truck driver at defendant Husteads, Inc. (Husteads) for about thirty years until his termination in 2004. Plaintiff was hired, and fired, by his brother, defendant Gale Larks.[2] As a tow truck driver, plaintiff would perform such tasks as towing cars, changing flat tires, and providing jump starts. Customers would pay for these services by giving plaintiff a credit card, a check, or cash. If the customer paid cash, plaintiff was supposed to take the cash and prepare a receipt in triplicate, with a copy of the receipt going to the customer and a copy to be turned in to Husteads along with the cash received for the services provided. All cash and receipts collected over the course of a day were required to be turned in to the company the same day plaintiff collected it. Plaintiff concedes that the cash he collected from Husteadss customers belonged to Husteads, not to him personally. Plaintiff admits that it was important to Husteads to receive the cash he collected from customers so that the company could operate its business.

B. Plaintiff kept company money for himself

On approximately 10 to 25 occasions, beginning in 1986 or 1987, plaintiff did not turn in cash and receipts at the end of the day as he knew he was required to do. On not a single one of these occasions did plaintiff ask in advance if he could retain cash and receipts. Plaintiff admitted in his deposition that he should have asked before taking company money. Nevertheless, plaintiff believes it was acceptable for him to collect money from customers but not turn it in to Husteads. Plaintiff characterizes his conduct as borrowing without permission.

Plaintiff testified at his deposition that he could not recall the exact amount of money that he took on any one occasion. However, defendant admitted that the amount taken, at least collectively, got up there. At one point, defendant Gale Larks told plaintiff that this is getting out of hand, and plaintiff responded, [y]eah. The total amount taken and never reimbursed is disputed; plaintiff concedes that the amount taken was in the hundreds but insists that it never totaled more than $1,500. The situation got to the point where plaintiff had taken more company money than he received in his paycheck.

Following his termination, plaintiff wrote to his brother and admitted having had problems with money. Plaintiff testified at his deposition that the letter referred to his keeping company money. Plaintiff testified that he considered his conduct to be a problem, and admitted in the letter: I was wrong and it was stupid. Plaintiffs letter to his brother said: Maybe we were both wrong. Plaintiff concedes that his brother would have been justified in terminating plaintiff long ago for having taken money without advance permission.

The parties dispute whether plaintiff ever intended to repay the money taken from the company. Defendants insist that plaintiff never intended to pay back the money. Plaintiff declares that he, at some point in time, intended to repay the money and avers that he agreed to a $50 weekly payroll deduction towards the arrearages as they accumulated. Plaintiff admits, however, that he has not repaid the money despite receiving over $90,000 for the sale of his home. Plaintiff has also failed to repay personal loans that Gale made to plaintiff when plaintiffs truck was repossessed and his house was threatened with foreclosure proceedings.

C. Plaintiff was terminated for allegedly stealing customer money

On July 7, 2004, defendant Gale Larks asked plaintiff to move a customers car. Plaintiff unlocked the car and opened the door with typical strength. The armrest contained a three to four inch deep recessed area that was full of coins. Plaintiff claims that, when he opened the door, two quarters fell off the armrest onto the ground. As the two quarters fell to the ground, a few coins spilled out of the recessed area and onto the armrest. The rest of the coins remained in the recessed area. Plaintiff picked up the two quarters that had fallen to the ground, and then scooped all of the coins in and around the recessed area into his hand. Plaintiff says his hand was pretty full with the coins.

Plaintiff claims he intended to move the coins to the lower door pouch. Plaintiff took all the coins into his hand because he thought that, if he had not, the coins would have fallen onto the seat or the floor when the door was closed. Plaintiff says he intended to move the coins to a more secure place. Yet, plaintiff concedes that, since most of the coins had been in the recessed area of the armrest, they would have stayed there when the door was closed. Plaintiff admits that, other than the two coins that fell onto the ground and the few that spilled onto the armrest, the coins were in no danger of falling out. It never occurred to plaintiff to move just the top layer of coins; he says he didnt even think about it.

Defendant Gale Larks approached plaintiff and asked what was in plaintiffs hand. Plaintiff responded, some coins. Gale accused plaintiff of stealing the coins. Plaintiff explained to Gale that, when plaintiff opened the car door, two quarters fell onto the floor, he bent down and picked them up, he scooped the rest of the coins off the armrest and was going to put them in the lower car pouch. Gale responded, [n]o, you werent. You were stealing those coins out of this car. Plaintiff denied stealing the coins. Plaintiff then threw the coins into the pouch. Plaintiff concedes that he does not know what Gale was thinking, and has no basis for believing that Gale did not genuinely think that plaintiff had stolen the coins from the car.

Plaintiff was terminated the day after the coin incident. Plaintiff was a union member, whose employment was governed by a collective bargaining agreement requiring just cause for the discharge of an employee. The agreement provides a mandatory dispute resolution procedure. Plaintiffs union ultimately decided that plaintiff did not have a viable claim against defendant Husteads as a result of the termination, characterizing the matter as more of a brother thing in which the union declined to get involved.

D. Defendant Gale Larkss statements to plaintiffs son, Mark Larks

In late 2002, about 18 months before plaintiffs termination, defendant Gale Larks had sought advice from plaintiffs son, Mark Larks. According to Mark, Gale called plaintiff the best employee Ive ever had, but expressed concern that plaintiff was lacking passion at work. Gale asked what Mark thought plaintiffs work performance problems were, and asked whether plaintiff liked working for Gale. Gale allegedly said he thought plaintiff would be happier working someplace else, and wished plaintiff would quit. About a week or two after this first conversation, Gale allegedly again told Mark that Gale wanted plaintiff to quit.

On July 9, 2004, the day after plaintiffs termination, Mark went to Husteads to pick up his fathers final paycheck. Mark volunteered to do this and plaintiff authorized him to do it. Mark looked at the check and complained that plaintiffs vacation pay was missing. Defendant Gale Larks responded that, according to the applicable collective bargaining agreement, plaintiff forfeited his vacation pay when Gale caught plaintiff stealing. Mark accused his uncle Gale of trying to get rid of plaintiff for years. Gale responded that plaintiff had been taking receipt money for years, that Gale had already forgiven thousands of dollars in debts, that plaintiff was thousands of dollars in debt again, and that Gale could not take it any longer. Mark asked if Gale had any proof, and Gale said that he had a stack of invoices that plaintiff owed on. Mark told Gale during this conversation that you better pray that I dont knock your ass out, and then when you wake up in the hospital, pray I dont knock your ass out again. Mark pulled out a stun gun when the two men were approximately one or two feet apart.

E. Defendant Gale Larkss statements to plaintiffs future employer, Teresa Beglinger

Teresa Beglinger owns a Berkeley towing company called East Bay Tow. At some point after Husteads terminated plaintiff, Beglinger and defendant Gale Larks had a telephone conversation about plaintiff. Beglinger and Gale first spoke about business not relating to plaintiff. Beglinger then told Gale that plaintiff had applied for a job with her company but she did not hire him. Gale responded that Beglinger should have hired plaintiff if she needed someone. Gale told Beglinger that plaintiff was a good driver, that plaintiff had lots of experience, and that plaintiff would probably do a good job for her, though Gale did not think he could trust plaintiff to do a good job for him anymore. Beglinger then asked what happened, and Gale responded we just cant work together. Beglinger responded that she knew what it was like to work with siblings.

Beglinger confirmed in her deposition that she asked Gale what had happened with plaintiff at Husteads, and that he responded as set out above. However, Beglinger also contends that Gale said you can go ahead and hire him if you want to, if you dont mind hiring a thief. Plaintiff was hired by East Bay Tow on February 25, 2005, after Beglingers conversation with Gale. Beglinger testified in her deposition that I dont think any business would hire someone it believed might steal from it or a customer.

F. Plaintiffs disclosure to third parties

Sometime after his termination, plaintiff encountered four police officers in the course of performing his job duties with a subsequent employer. In response to their inquiries as to why he was no longer working for Husteads, plaintiff said he was fired because Gale accused him of stealing. Plaintiff was not required to give the police officers this information, and plaintiff admits he could have declined to discuss the matter with them.

G. Plaintiffs admissions on the state of the evidence

Plaintiff concedes that he does not know whether the defendants made the statements he is alleging in this lawsuit with the knowledge that the statements were false. Plaintiff had no evidence as to defendant Gales state of mind in making the statements plaintiff is suing upon in this lawsuit, and admitted that it is possible that the defendants honestly believed the truth of their statements. Plaintiff had no evidence that anyone thought any less of him as a result of the alleged slanderous comments he is claiming in this case.

discussion

A. The allegedly slanderous statements were true

Slander and libel are forms of defamation. (Civ. Code,  44, 46.) Libel is a written publication, whereas slander is a false and unprivileged oral publication that charges a person with a crime, tends directly to injure him in respect to his profession, or causes actual damage by natural consequence. (Civ. Code,  45, 46.) Truth is an absolute defense to any defamation action. (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 581.) In order to establish the defense, the defendant need not prove the literal truth of the allegedly libelous [or slanderous] accusation, so long as the imputation is substantially true so as to justify the gist or sting of the remark. (Id. at pp. 581-582.) It has long been recognized that many charges are made in terms which are accepted by their recipients in a popular rather than a technical sense. (Rest., Torts,  582, com. e, accord Ende v. San Joaquin County Central Labor Council (1943) 23 Cal.2d 146, 160 [citing Restatement with approval].) Thus, [s]light inaccuracies of expression are immaterial provided that the defamatory charge is true in substance. (Rest., Torts,  582, com. e.)

Plaintiff claims defendant Gale Larks told plaintiffs son and a woman who later became plaintiffs employer that plaintiff was a thief.[3] The trial court found that defendants had established truth as a defense because there was undisputed evidence that [p]laintiff repeatedly took what did not belong to him without permission and thus, in lay terms, was a thief. Our independent review of the record reaches the same conclusion.

The undisputed facts established that cash receipts were required to be turned in to the company the same day plaintiff collected them. Plaintiff concedes that the cash he collected from Husteadss customers belonged to Husteads, not to him personally. Yet, on approximately 10 to 25 occasions, plaintiff did not turn in cash at the end of the day as he knew he was required to do. Plaintiff never asked in advance if he could retain the cash. Plaintiff admitted in his deposition that he should have asked before taking company money and, in a letter written after his termination, admitted that he was wrong for taking money without permission.

Plaintiff tries to evade the force of his admissions. Plaintiff argues on appeal that the evidence permits the inference that defendant Gale Larks consented to plaintiffs retention of company money. The argument is founded upon plaintiffs declaration in opposition to the summary judgment motion, in which plaintiff avers that Gale effectively permitted borrowing over the course of years, by not firing plaintiff sooner, and accepted partial repayment with a payroll deduction. These averments from plaintiffs declaration were not included in plaintiffs separate statement of facts, and thus the trial court was free to disregard them. (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at pp. 30-32.)

In any event, plaintiff may not defeat a motion for summary judgment by the retraction of prior admissions. (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.) The assertion of facts contrary to prior testimony does not constitute  substantial evidence of the existence of a triable issue of fact.   (Thompson v. Williams (1989) 211 Cal.App.3d 566, 574.) Here, plaintiff testified that he was wrong for taking the money without permission . . . . Plaintiff recasts this testimony as meaning that, on the first occasion, it was wrong to take money without permission but then Gale did not complain and effectively consented to the repeated retention of money on subsequent occasions. The testimony cannot accommodate this creative restructuring. Plaintiffs letter to Gale following termination and plaintiffs deposition testimony contain unambiguous admissions that he wrongfully kept company money without permission. Plaintiffs euphemistic reference to borrowing without permission does not save plaintiff; it only underscores the lack of consent.

The evidence thus established that plaintiff wrongfully took money that did not belong to him. If defendant Gale Larks called plaintiff a thief, as it is alleged, the charge was true in substance. Whether plaintiff meets the strict legal definition of a thief is immaterial. As noted above, a defendant need not prove the literal truth of the allegedly slanderous accusation so long as the imputation is substantially true so as to justify the gist or sting of the remark. (Campanelli v. Regents of University of California, supra, 44 Cal.App.4th at pp. 581-582.)

B. The allegedly slanderous statements were privileged

A privileged publication includes 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. 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 an applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. (Civ. Code,  47, subd. (c).)

The trial court correctly found that the challenged statements to plaintiffs son, Mark Larks, and prospective employer, Teresa Beglinger, were privileged. Plaintiff authorized Mark to pick up plaintiffs final pay check and, as plaintiffs authorized agent, Mark complained that plaintiffs vacation pay was missing. Defendant Gale Larks responded that, under the applicable collective bargaining agreement, plaintiff forfeited his vacation pay when Gale caught plaintiff stealing. The accusation of stealing was privileged because it was made in the context of a communication between an employer and the employees agent about compensation, and directly answered the agents complaint that additional compensation was due.

Likewise, defendant Gales alleged reference to plaintiff as a thief was privileged because it arose during a conversation with a prospective employer who asked about plaintiffs job performance and qualifications. Beglinger initiated a discussion with Gale about plaintiff and his application for employment. When Beglinger said she did not hire plaintiff, Gale said she should have and recommended plaintiff as a good driver. The two continued their discussion, with Beglinger directly asking what happened at Husteads. Gale supposedly said during the conversation: You can go ahead and hire [plaintiff] if you want, if you dont mind hiring a thief. Beglinger hired plaintiff after this conversation. Gales alleged comment about plaintiff being a thief was a privileged communication describing plaintiffs conduct while employed at Husteads.

The common interest privilege does not shield malicious statements, but there is no evidence of malice here.   The malice necessary to defeat a qualified privilege is actual malice which 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 plaintiffs rights.   (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1370. italics omitted.) The undisputed evidence shows that defendant Gale Larks believed, upon credible evidence, that plaintiff took property (both company receipts and a customers coins) that did not belong to plaintiff. Even if Gale misconstrued plaintiffs actions, Gales misapprehension was no more than an unintentional mistake. Plaintiff admitted, on the motion for summary judgment, that he had no evidence as to defendant Gales state of mind in making the statements plaintiff is suing upon in this lawsuit, and admitted that it is possible that the defendants honestly believed the truth of their statements.

Plaintiff insists that malice can be inferred from the fact that Gale told plaintiffs son, months before plaintiffs termination, that Gale wanted plaintiff to quit. The suggestion seems to be that Gale manufactured grounds for terminating plaintiff, and falsely called plaintiff a thief to dismiss an unwanted employee. The suggestion is thwarted by the evidence, which shows that plaintiff remained in Gales employ for over a year after his alleged statements of dissatisfaction with plaintiff and dismissed plaintiff only after plaintiff suspiciously removed money from a customers car. As the trial court properly found, nothing supports an inference of malice.

C. The invasion of privacy claim falls with the slander claim

A tortious invasion of privacy may take several forms: (1) the commercial appropriation of the plaintiffs name or likeness . . . ; (2) intrusion upon the plaintiffs physical solitude or seclusion; (3) publicity which places the plaintiff in a false light in the public eye; and (4) public disclosure of true, embarrassing private facts about the plaintiff. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 828.) The trial court thought plaintiff was claiming the last form of an invasion of privacypublic disclosure of private facts. The court found insufficient publicity given the few people involved, and also found the disclosure privileged.

Plaintiff argues that the trial court misunderstood his invasion of privacy claim, which he says actually alleges the third form of the tortfalse light. Plaintiffs claim is equally flawed under a false light theory of invasion of privacy. As plaintiff acknowledges, [w]hen a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13.) Summary judgment was properly granted on plaintiffs false light claim for the same reasons as summary judgment was properly granted on the slander claim. Defendants alleged statements calling plaintiff a thief were substantially true, and privileged.

disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Rivera, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

[1] Defendants separate statement of undisputed facts was largely unchallenged on their motion for summary judgment. Defendants filed a statement of 102 assertedly undisputed facts, of which plaintiff disputed only 8. Plaintiff stated no additional facts. We recount here the undisputed facts and those facts conclusively established by the evidence where a dispute was raised.

[2] The parties shared family name requires occasional first name references.

[3] Plaintiff also claims Gale made this disparaging remark to others, including another potential employer, union personnel, peace officers, and Husteadss business manager. The trial court was not required to consider this claim because plaintiff failed to include his averments in his separate statement of facts on the motion for summary judgment. (NorthCoastBusinessPark v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-32.) In any event, all alleged slanderous statements are subject to the same defense.