Rascoe-Gabriele v. Doral Palm Springs Resort

Filed 10/16/06 Rascoe-Gabriele v. Doral Palm Springs Resort CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Lawrence W. Fry, Judge. Affirmed.

Stanley M. Becker for Plaintiff and Appellant.

Grimm Vranjes McCormick & Graham, Eugene P. Kenny and Gregory B. Thomas, for Defendants and Respondents.

Plaintiff Betty Rascoe-Gabriele appeals the summary judgment granted in favor of defendants Doral Palm Springs Resort (Doral Resort), Thomas A. Ruhs, and Joanne Adams, the two individual defendants being employees of Doral Resort. The trial court granted summary judgment in favor of defendants as to all causes of action based on the conditional common interest privilege set forth in Civil Code section 47, subdivision (c) (section 47(c)).

Plaintiff argues the privilege never arose because there was no common interest and because statements attributable to defendants were made maliciously and with a complete disregard of the truth. We conclude defendants established the alleged defamatory statements were made on a privileged occasion, and plaintiff did not meet her burden of producing evidence from which a reasonable jury could infer malice. We therefore affirm the judgment. We also dispose summarily of plaintiff’s contentions relying on an unalleged ostensible agency and attacking an additional ground of the summary judgment.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff filed a complaint against defendants, as well as two other defendants: Parking Company of America (Parking Company) and Andy Austin, who worked with plaintiff. Parking Company and Austin are involved in the current appeal only in that their actions provide factual context and in that the employees of Parking Company are rejected as ostensible agents of Doral Resort. (See Discussion, section 2.) The complaint includes causes of action against defendants for defamation, invasion of privacy, and intentional interference with contractual relations and prospective economic advantage. The summary judgment appealed was granted in favor of defendants Doral Resort, Ruhs, and Adams, and does not relate to Parking Company or Austin.

Plaintiff alleges she was employed as a corporate real estate broker for Raintree Resorts International, Inc., doing business as Cimarron Golf Resort and Cimarron Resorts, Inc. (Cimarron). On September 20, 2000, plaintiff had lunch with an individual named Bill Russin at the Fairway Café, which is located on the premises of Doral Resort. Following lunch, plaintiff and Russin continued their meeting in the patio area of the Fairway Café. Although the amount consumed by plaintiff is a disputed issue, it is undisputed that both parties consumed wine during their meeting.

Following her meeting with Russin, plaintiff alleges a parking valet, who was an employee of defendant Parking Company, refused to give plaintiff the keys to her car. Plaintiff then went to the front desk of Doral Resort and was told her keys were being withheld because she had had too much to drink. At plaintiff’s request, the front desk clerk called the police. According to the complaint, the police officer determined plaintiff could drive her car home, so she did.

Shortly thereafter, plaintiff alleges her employer, Cimarron, learned of the incident at Doral Resort. Plaintiff claims a parking valet, sometimes identified as Kenneth Miller, who was an employee of defendant Parking Company, told Austin, who also worked for plaintiff’s employer, Cimarron, about the incident while Austin was on the premises of Doral Resort having lunch. Austin then informed plaintiff’s supervisor, Joel Lazar, about the incident by email: “[T]here was an incident at the Doral [Resort] that needs to be brought to your attention. While picking up a prospective new agent Ciro Albornoz on 9/21/00, we engaged in casual conversation with the valet attendant. Once he discovered that I worked for Cimarron he [asked] ‘how [plaintiff] looked this morning[.]’ I ask[ed] why, he said she had drinked [sic] to [sic] much in the bar the night before and they had to have her husband come and pick her up. Unfortunately, Mr. Albornoz witness[ed] this conversation. For obvious reason[s], the Doral [Resort] is probably not a good place for our associates to entertain themselves.” Lazar responded: “I don’t even know where to begin. . . . You might circulate a memo advising all Cimarron employees to refrain from having more than one social drink [at] the bar at the Doral [Resort] since that is where we are currently sending our minivac prospects.”

Lazar then emailed Ruhs, a manager of Doral Resort, asking for information about the incident. Ruhs replied with an email saying, “We do have an incident report on her. It was much more complicated than you heard. Police were called and she became a big pain in the ass - totally drunk and wanting to drive. I’ll share the report with you if you want. Joanne Adams, who you might know[,] was here working when it happened. Call me if you need further info.” Ruhs faxed the incident report to Lazar. The trial court considered this email and facsimile transmission by Ruhs to Lazar to be the only statements on which each of plaintiff’s causes of action against defendants were based because these are the communications upon which the parties focused exclusively in the motion for summary judgment proceedings. Other statements made by Miller, Austin, or Lazar are not at issue because the judgment appealed does not concern these parties. No statement made by Adams is at issue either, because plaintiff made no claim, either in the trial court (other than vaguely in the complaint) or in plaintiff’s briefs, that Adams made any actionable statement.

As a result of the allegedly false and damaging information provided to her employer, plaintiff claims she was threatened with termination and injured in her employment and business and professional reputation. She also claims an offer of employment as a vice president for one of her employer’s subsidiaries was withdrawn.

The trial court granted summary judgment for defendants, finding all causes of action were barred by the communications privilege in section 47(c).

DISCUSSION

1. Application of the Privilege

Plaintiff contends that Ruhs’s email and transmission of the incident report were not privileged under section 47(c) because (1) the undisputed facts do not show the existence of a common interest, and (2) the defamatory communications were not calculated to further a common interest. We disagree.

We review de novo the trial court’s granting of summary judgment and, in particular in this case, we review de novo a purely legal question concerning the application of a statute to undisputed facts. (Manibog v. MediaOne of Los Angeles, Inc. (2000) 81 Cal.App.4th 1366, 1369.)

If the trial court finds an allegedly defamatory statement privileged, and that privileged statement is also the basis of more than one cause of action, those additional causes of action are similarly barred. “‘California courts have held that plaintiffs may not avoid the strictures of defamation law by artfully pleading their defamation claims to sound in other areas of tort law.’” (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1373 (Noel).) If we affirm the trial court’s holding that the privilege applies to the allegedly defamatory statements, plaintiff does not contest the application to the remaining causes of action.

At issue in this case is the application of section 47(c). In applicable part and as interpreted by case law, the section provides a privilege for a nonmalicious communication to a recipient with a qualifying interest in the communication by a transmitter either, first, who also has a qualifying interest in the communication (section 47(c), cl. (1)) or, second, who is related to the recipient so as to have a reason to make an “innocent” communication (section 47(c), cl. (2)) or, third, whom the recipient asked for the information (section 47(c), cl. (3)). (See Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 108.) An interest qualifies if it is “something other than mere general or idle curiosity, such as where the parties to the communication share a contractual, business or similar relationship or the defendant is protecting his own pecuniary interest.” (Id. at p. 109.) Because the communication must not only fit the privilege but also be nonmalicious, the statute implicitly requires a two-step, burden-shifting process -- the defendant-transmitter must establish that the communication fits one of the three privileged patterns of communication, at which point the plaintiff must establish that the communication was malicious to show the privilege does not apply. (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1208.)

Following this statutory process, the trial court first considered the transmitter’s interest. In the order granting summary judgment, the trial court found that Cimarron (as the recipient through Lazar of Doral Resort’s communications transmitted through Ruhs) had a sufficient interest in the communication because of its use of Doral Resort for “minivacation guests,” observing “[i]ndeed, a drunk employee of [Cimarron] at the Doral [Resort], if seen by a [Cimarron] guest, would likely not reflect well on [Cimarron].”

Second, the trial court considered the recipient’s relationship to the communication, explicitly relying on the third option -- Lazar’s request to Ruhs for the information. (Section 47(c), cl. (3).) Thus, the trial court finished the first step of the section 47(c) process finding that the pattern of privileged communication fit because Cimarron was legitimately interested in the communication that it had requested from Doral Resort. The trial court took the second step in the section 47(c) process by finding no showing of malice by plaintiff.

Plaintiff attacks both of the trial court’s conclusions that an interested person requested the information and that plaintiff presented no evidence of malice. We concur with the trial court’s conclusion that the section 47(c) privilege applied.

(a) A Communication Requested by an Interested Recipient

Plaintiff does not provide any support for her contention that the placing of Cimarron’s “minivacation guests” at Doral Resort is not in furtherance of Cimarron’s business interest. Instead, plaintiff argues first that the communication could not have furthered Cimarron’s business interest because it was about plaintiff’s personal, not business, activities. However, this distinction would make little difference to one of Cimarron’s minivacation guests, who would (1) not know whether the employee was working or not and (2) be critical of a Cimarron employee observably drunk, whether on duty or not. Second, plaintiff argues that the communication could not have furthered Cimarron’s business interest because the communication took place during a period when there were no minivacation guests at Doral Resort. This argument fails because the point of the communication was to prevent plaintiff from acting as alleged again when there might well be a minivacation guest present. Plaintiff also argues in disconnected fashion, “Nor could Ruhs have been protecting the pecuniary interest of the Doral [Resort].” This argument misses the mark because the trial court did not rely, although it arguably could have relied, on Doral Resort having its own interest to further; instead, it relied on Cimarron’s requesting Doral Resort to make the communication. (Contrast section 47(c), cls. (1), (3).) Thus, the trial court correctly held that Cimarron requested the information from Doral Resort in furtherance of Cimarron’s business interest under section 47(c), clause (3).

(b) Malice

Respecting her contention that the communication was malicious, plaintiff argues Ruhs completely disregarded the truth in his statements to Lazar about the incident involving plaintiff at Doral Resort. In support of this argument, plaintiff cites the text of the “totally drunk and wanting to drive” email from Ruhs to Lazar following the incident and argues that Ruhs exaggerated and misstated information from the incident report.

Malice “‘”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 plaintiff’s rights (citations).” [Citations.]’” (Noel, supra, 113 Cal.App.4th at p. 1370, quoting Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413.) “[M]ere negligence in investigation of the facts, in the sense of oversight or unintentional error, is not alone enough to constitute malice. It is only when the negligence amounts to a reckless or wanton disregard for the truth, so as to reasonably imply a wilful disregard for or avoidance of accuracy, that malice is shown.” (Roemer v. Retail Credit Co. (1970) 3 Cal.App.3d 368, 372.) In determining whether statements were made with reckless or wanton disregard for the truth, the relevant inquiry is not on whether the statements can be proven untrue but on the speaker’s belief about the accuracy of the statements when made. (Noel, supra, at p. 1371.)

The trial court concluded in the order granting summary judgment, “Here, Plaintiff presented no evidence of hatred or ill will by Defendants. Nor did Plaintiff present evidence that Defendants knew they were lying or had a reasonable ground for belief in the nontruth of the complained of statements. In fact, Mr. Ruhs had a copy of the incident report prepared by Mr. Newman at the time of the communication of the allegedly defamatory statements. [Citation.] As a result, Plaintiff has not met her burden.”

Although Ruhs might have summarized the incident report more tactfully, his email statements did not diverge so far from the report as to imply hatred or ill will toward plaintiff. Nor is there any evidence otherwise indicating that the statements were made with a complete disregard for the truth. The statements in Ruhs’s email were intended as a brief summary of what was stated in the incident report, which he had every reason to believe was accurate. The evidence indicates the incident report was prepared by Michael Newman, a security officer on duty at Doral Resort when the incident occurred. Newman’s report was based on his own personal observations, as well as information provided to him by plaintiff and by other witnesses who were employed by Doral Resort. Plaintiff points to no evidence suggesting Ruhs would have any reason to doubt the veracity of information included in the incident report. Thus, standing alone, the statements in Ruhs’s email are simply not probative on the issue of malice.

We conclude the trial court correctly found no evidence of malice had been presented, and concur in its application of the section 47(c) privilege to all causes of action.

2. Parking Valet as Ostensible Agent of Doral Resort

The complaint alleges that Miller was an employee of Parking Company. Nevertheless, plaintiff contends that Miller, as an employee of Parking Company, was an ostensible agent of Doral Resort, and that Ruhs ratified Miller’s malicious conduct when he provided Lazar with further information about the incident “based upon Miller’s initial statement to Austin.” In other words, plaintiff contends Doral Resort can be held liable for alleged defamatory statements made by employees of Parking Company because these employees were ostensible agents of Doral Resort.

The trial court rejected plaintiff’s agency argument, and we do as well, because “[a] defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.” (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4.)

3. Plaintiff’s Meeting in Public Place

The trial court “further granted” summary judgment of the invasion of privacy cause of action “on the ground that Plaintiff was observed in a public, not a private place.” Plaintiff contends this makes no difference. Regardless, plaintiff’s cause of action for invasion of privacy is based on the same communications alleged in all of her other causes of action. As a result, the issue is moot in light of our affirmance of the trial court’s application of the section 47(c) privilege to bar all of plaintiff’s causes of action, and we decline to address the issue. (See, e.g., Lambert Steel Co. v. Heller Financial, Inc. (1993) 16 Cal.App.4th 1034, 1043-1044 [propriety of lien filing not addressed because lien lacked priority].)

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Ramirez

P.J.

We concur:

/s/ Richli

J.

/s/ Miller

J.

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