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dismissing intentional interference claim by plaintiff who was placed with defendant company through a staffing agency, finding company was not a "stranger" to the contract between the plaintiff and the staffing agency, even though company was not a direct party to the contract
Summary of this case from Channon v. TavangarOpinion
D067722
07-12-2017
CHRISTINE BLANTZ, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants and Respondents.
Murphy, Campbell, Alliston & Quinn, George E. Murphy and Suzanne M. Nicholson for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Christine Mersten and Elizabeth Vann, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2011-00070103-CU-MC-EC) APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed. Murphy, Campbell, Alliston & Quinn, George E. Murphy and Suzanne M. Nicholson for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Christine Mersten and Elizabeth Vann, Deputy Attorneys General, for Defendants and Respondents.
While under a temporary contract with a medical staffing agency, plaintiff Christine Blantz was placed as a nurse practitioner at a prison hospital operated by defendant California Department of Corrections and Rehabilitation (Corrections). Corrections terminated Blantz's placement about a year and a half later, and would not hire her when she directly applied for work three months later.
Blantz sued Corrections and various of its employees in superior court alleging a variety of federal and state law claims arising from her termination and Corrections' refusal to hire her directly. The action was removed to federal court, where the district court dismissed Blantz's federal claims and remanded her state law claims to the superior court. The United States Court of Appeals for the Ninth Circuit (hereafter, the Ninth Circuit) affirmed the district court's dismissal of Blantz's federal claims. (See Blantz v. California Dept. of Corrections and Rehabilitation (9th Cir. 2013) 727 F.3d 917 (Blantz I).)
Following remand, the superior court ultimately sustained without leave to amend defendants' demurrers to the remaining state law claims asserted in Blantz's second and third amended complaints. The court found that Blantz I constituted a res judicata bar to the bulk of Blantz's state law claims. The court also found that her defamation claim failed because it was based on nonactionable opinion, and her privacy/false light claim failed because it was superfluous to her defamation claim and, in any event, was not based on sufficiently egregious conduct. Blantz appeals from the judgment of dismissal.
We agree that Blantz I bars the bulk of Blantz's claims, though for a different reason (the law of the case doctrine) than the trial court found (res judicata). We also agree that the predicates of Blantz's defamation claim are nonactionable opinion, and that her false light claim is superfluous to her defective defamation claim. Accordingly, we affirm.
I. FACTUAL BACKGROUND
On appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend, we assume the truth of the properly pleaded or implied factual allegations, as well as matters that may be judicially noticed. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).) Thus, we often refer to the allegations in the complaints without the introductory phase "Blantz alleges."
Corrections entered into a contract with a private medical staffing agency, Newport Oncology and Healthcare Medical Corporation, Inc. (NOAH), to locate or identify available healthcare professionals and refer them to Corrections to work in the medical facilities operated by Corrections throughout California.
NOAH, in turn, entered into a separate contract with Blantz to provide nurse practitioner services to Corrections "as an independent contractor on a locum tenens basis." NOAH paid Blantz's wages and provided her with malpractice and workers compensation insurance, but did not control the manner in which she performed her services. Rather, the Blantz-NOAH contract required Blantz to follow Corrections' "policies, procedures, rules, regulations and medical staff bylaws." The contract had an express term of July 4, 2006 through October 24, 2006, but further provided it would terminate immediately upon "[r]equest by [Corrections] that [Blantz] be removed from placement," or upon cancellation of the NOAH-Corrections contract.
" 'Locum tenens' " in the medical employment context refers to a medical practitioner "who acts as a temporary substitute for another." (Khajavi v. Feather River Anesthesia Med. Group (2000) 84 Cal.App.4th 32, 39.)
It appears undisputed that the parties continued performing the Blantz-NOAH contract after its express expiration date.
NOAH placed Blantz at Corrections' Calipatria State Prison (Calipatria) in July 2006. Corrections provided Blantz "with a comprehensive orientation session," during and after which Blantz received several documents that set forth Corrections' policies and procedures (the Policy Documents). The orientation session and Policy Documents form the basis of Blantz's claim that Corrections was obligated to terminate her placement only for cause, and to provide her with due process procedures before doing so.
The Policy Documents consist of the following: (1) a "Health Care Professionals Orientation Manual"; (2) a document titled "Nurse Practitioner Policy & Procedures"; (3) a document titled "Licensed Independent Practitioners—Due Process"; and (4) a copy of Chapter 1, Division 3 of Title 15 of California Code of Regulations.
In November 2007, defendant James Ruddy, a Corrections medical auditor, conducted an audit of Blantz's patient charts. Blantz alleges that despite the fact she had the highest peer review rating of any practitioner at her facility, Ruddy (due to his alleged inexperience) provided an unwarranted "negative assessment of [her] performance." At the direction of Corrections employees (and defendants) Elizabeth Dos Santos Chen, Dwight W. Winslow, Steven F. Ritter, and Terry Hill, Corrections never provided Blantz with notice of Ruddy's negative assessment.
Dos Santos Chen was Ruddy's supervisor and chief medical officer for the southern region of clinical support for Corrections; Winslow was the state medical director for Corrections; Ritter was the regional director for the southern district of Corrections; and Hill was the chief medical officer of Corrections and the federally appointed receiver of the state prison medical care system.
In December 2007, one of Blantz's supervising physicians left a voicemail message advising Blantz that her placement at Calipatria was terminated based on a call the physician had received from "someone in authority" at Corrections. Blantz alleges she had not previously received any notice of contemplated adverse action against her, nor was she informed of the reasons for her dismissal. She was unsuccessful in her subsequent attempts (both informal and formal) to learn the reason for the termination of her placement. Blantz alleges various of the individual defendants caused Corrections not to provide her with the notices and rights to which she claims she was entitled, or to respond to her inquiries.
In February 2008, Blantz applied directly to Corrections for nurse practitioner work elsewhere within the prison system. An unidentified third party informed Blantz that someone had informed him that Blantz failed to meet Corrections' requirements because she had poor recommendations from her previous work at Calipatria. The dissemination of these poor recommendations precluded Blantz from all employment as a nurse practitioner within Corrections.
II. PROCEDURAL BACKGROUND
Blantz commenced the present action by suing Corrections (and various of its employees and administrators) in the superior court. Her complaint alleged 11 causes of action—two based on federal law, nine based on state law. One of the defendants (Hill) removed the action to federal district court based in part on federal question jurisdiction. Following removal, Blantz filed a second amended complaint (SAC) asserting the same nine causes of action against Corrections, Ruddy, Dos Santos Chen, Winslow, Ritter, and Hill.
The record on appeal does not contain Blantz's original complaint, her first amended complaint, or the documents related to the removal to federal court.
A. The SAC
In her first cause of action for "Intentional Interference with Contractual Relations," Blantz alleges that all the defendants disrupted her "contractual relationship with NOAH and [Corrections] . . . insofar as she was terminated from her position at Calipatria . . . and has been unable to obtain any further work with [Corrections]."
In her second and third causes of action for "Intentional" and "Negligent Interference with Prospective Economic Relations," Blantz alleges that all the defendants disrupted "an economic relationship that probably would have resulted in an economic benefit to [Blantz] through her placement as a nurse practitioner in the [Corrections] system and/or at [Corrections] facilities."
In her fourth cause of action for "Breach of Employment Contract—Wrongful Termination," Blantz alleges that Corrections breached "[a]n implied or express term" of an alleged contract between Blantz and Corrections that she "would not be terminated except for cause, and only after being afforded all due process protections required by law" and the Policy Documents.
In her fifth cause of action for "Breach of Contract," Blantz alleges she was an intended third party beneficiary of the Corrections-NOAH contract, which Corrections allegedly breached by terminating Blantz in violation of an express or implied term in the Corrections-NOAH contract that Corrections would only terminate NOAH contractors for cause, and only after providing them with due process.
In her sixth cause of action for "Defamation/Libel," Blantz alleges that Corrections, Ruddy, and Doe defendants "made false statements about [Blantz] when they published the unsupported negative performance reviews of [Blantz], stated that she failed to meet State requirements for employment with [Corrections], and provided her with 'poor recommendations' concerning her previous work at [Corrections]."
In her seventh cause of action for "Violation of Right to Privacy—False Light" (hereafter, false light), Blantz alleges that, "[i]n publishing the defamatory statements referenced [in the SAC], [Corrections and Ruddy] publicized material that showed [Blantz] in a false light, namely, as one who was not qualified or competent to practice in her chosen profession, and as one whose reputation for honesty or morality was in question."
In her eighth cause of action for "Violation of Due Process—California Constitution," Blantz alleges that defendants Dos Santos Chen, Winslow, Hill, and Ritter violated Blantz's state constitutional rights by summarily terminating her employment without prior notice or due process.
In her ninth cause of action for "Violation of Federal Civil Rights (Due Process)," Blantz alleges that all the defendants (except Ruddy) violated Blantz's federal constitutional right to due process by summarily terminating her employment without prior notice or due process.
In her 10th cause of action for "Violation of Federal Civil Rights (Liberty/Injury to Reputation)," Blantz alleges that Corrections and Ruddy violated her due process rights by "publishing the defamatory statements as alleged [in the SAC]" without providing "due process so that she could clear her good name," which "inescapably harmed [Blantz]'s protected interest in her professional reputation."
In her 11th cause of action for "Breach of Mandatory Duty (Gov. Code, § 815.6)," Blantz alleges that by summarily terminating her without prior notice and due process, Corrections breached mandatory duties owed to Blantz under state regulations and Corrections' Policy Documents.
B. Federal Court Proceedings
All the defendants moved to dismiss the SAC. The district court granted the motion in its entirety as to defendant Hill and dismissed all claims against him. The court granted the motion in part as to the remaining defendants, dismissing with prejudice Blantz's two federal causes of action (the ninth and 10th causes of action). The court declined to exercise supplemental jurisdiction over the remaining state law claims, dismissed them without prejudice, and remanded them to the superior court.
Blantz appealed the district court's ruling on the federal claims to the Ninth Circuit, which affirmed. As to Blantz's due process claim, the Ninth Circuit concluded as a matter of law that Blantz, as an independent contractor of Corrections, had not alleged facts sufficient to establish she had a constitutionally protected property interest in her Corrections placement such that it could only be terminated for cause after first being afforded due process protections. (Blantz I, supra, 727 F.3d at pp. 922-925.) As to her claim for deprivation of a liberty interest, the Ninth Circuit explained she had not stated a valid claim because she alleged she had been deprived of employment opportunities with only "one division of the state government," not with all employers in her profession. (Id. at p. 926.)
Meanwhile, the superior court stayed proceedings on the state law claims pending resolution of the federal proceedings.
The Ninth Circuit also affirmed the dismissal as to all of Blantz's claims against Hill. (Blantz I, supra, 727 F.3d at pp. 926-927.) There are no issues in the present appeal related to claims against Hill, who was not a party to the remanded proceedings.
C. State Court Proceedings After Remand
Once Blantz I became final, Corrections, Ruddy, Dos Santos Chen, Winslow, and Ritter (together, defendants) demurred to the remaining nine state law causes of action in the SAC. Based on the ruling in Blantz I that Blantz did not have a constitutionally protected property interest in her continued placement with Corrections, the superior court sustained without leave to amend defendants' demurrer to all but Blantz's libel and false light claims.
As to the defamation and false light claims, the court granted Blantz leave to amend to plead malice sufficient to overcome a privilege defense. Blantz filed a third amended complaint (TAC) recasting her defamation and false light causes of action against Corrections and Ruddy (the TAC defendants). The TAC defendants filed a demurrer, which the superior court sustained without leave to amend.
The superior court entered a final judgment of dismissal, which Blantz timely appealed.
III. DISCUSSION
A. Standard of Review
In our review of a judgment of dismissal following the sustaining of a demurrer without leave to amend, "we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose." (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) We continue to assume the truth of the properly pleaded or implied factual allegations, as well as matters that have been judicially noticed. (Schifando, supra, 31 Cal.4th at p. 1081.) However, we do not assume the truth of contentions, deductions, or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 (Aubry).) We affirm the judgment if it is correct on any ground stated in the demurrer. (Ibid.) We presume the trial court's ruling is correct, and the appellant has the burden of affirmatively establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956-957 (Cahill).)
Among other grounds, the demurrers to each of the causes of action in the SAC and TAC were brought on the basis that the cause of action fails to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)
We review for an abuse of discretion the trial court's decision not to grant leave to amend. (Aubry, supra, 2 Cal.4th at p. 971.)
B. Preclusive Effect of Blantz I
The parties disagree about the preclusive effect, if any, of Blantz I on Blantz's state law claims. Defendants argue the trial court properly concluded the claim-preclusive aspect of res judicata bars all of Blantz's claims other than those for defamation and false light. Blantz counters res judicata does not apply because the doctrine serves to prevent plaintiffs from splitting their claims in successive lawsuits, which she insists she did not do. Rather, to the extent any claim-splitting occurred, Blantz asserts it was the federal court that split the claims. Blantz acknowledges the intervening appellate decision in Blantz I constitutes "the law of the case," but argues that (except for her due process claim under the California Constitution, which she concedes is barred) none of the legal principles necessarily decided in Blantz I dispose of any of her state law claims.
We agree res judicata does not apply and the law of the case doctrine does. But we disagree with Blantz's conclusion that none of her state law claims are barred by the law of the case.
1. Res Judicata
" 'Res judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) " ' "Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief." ' " (Id. at p. 897.) The claim-preclusive aspect of res judicata "arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) "If claim preclusion is established, it operates to bar relitigation of the claim altogether." (Ibid.)
For purposes of res judicata, "California law defines a cause of action 'by focusing on the "primary right" at stake: if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery.' " (Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 160.)
Generally, a federal court's "refusal to exercise pendent jurisdiction over a state claim following pretrial dismissal of a federal claim does not bar litigation of state claims in the state court." (Merry v. Coast Community College Dist. (1979) 97 Cal.App.3d 214, 228; see Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 286; cf. Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441, 453-454 [different considerations apply to posttrial dismissals].) In that circumstance, "California's prohibition on splitting causes of action" does not apply because " 'it [is] not [the plaintiff] who made the decision to "split" causes of action between state and federal court.' " (Harris v. Grimes (2002) 104 Cal.App.4th 180, 188.) This rule "is consistent with the Restatement Second of Judgments' . . . distin[ction] between a party's splitting of its causes of action and a court's doing the same thing." (Harris, at p. 188, italics added; see Rest.2d Judgments, § 25, com. e, p. 213 ["If . . . the [federal] court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should be held not precluded."].)
This general rule applies here because Blantz did not engage in claim-splitting. She asserted all of her claims—federal and state—in a single complaint filed in state court. One defendant (Hill) removed all of those claims to federal court. Then the federal court disposed of Blantz's federal claims before trial, refused to exercise supplemental jurisdiction over her remaining state law claims, and remanded them to state court.
In this regard, defendants' reliance on Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639 (Acuna) is misplaced. There, the plaintiff asserted state and federal law claims in a single complaint filed in state court, which a defendant subsequently removed to federal court. (Id. at p. 644.) When the defendants moved to dismiss the state law claims, the plaintiff moved to remand those claims to state court. (Ibid.) The plaintiff later amended his state and federal complaints to be "mirror image[s]" of each other. (Id. at p. 650.) Given the plaintiff's active participation in the splitting of his claims, the Acuna court found the federal court's adjudication of his federal complaint was a res judicata bar to his state complaint. (Id. at pp. 645, 650-651.)
In contrast to the Acuna plaintiff's conduct, Blantz did not seek remand of her state law claims following removal to federal court. Nor did she seek to amend her state and federal pleadings to mirror one another. Rather, to the extent any of Blantz's claims were split, it was the federal court—not Blantz—that split them. Accordingly, res judicata does not bar Blantz's state law claims.
2. The Law of the Case
a) Relevant Legal Principles
The law of the case doctrine provides that a principle or rule of law stated in a final appellate court opinion that is " 'necessary' " to the appellate decision must be followed in all subsequent proceedings in the action, whether in the trial court or a later appeal. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 459, p. 515.) Even where the issue presented in the prior appeal was not " 'absolutely necessary to the determination of the question whether the judgment appealed from should be reversed,' " the law of the case doctrine applies if the issue was " 'proper as a guide to the court below on a new trial.' " (People v. Boyer (2006) 38 Cal.4th 412, 442.)
Under this doctrine, "the case may not go over ground that has been covered before in an appellate court." (Sargon Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th 1495, 1506.) The primary purpose of the law of the case doctrine is to conserve judicial resources by affording finality to initial appellate rulings in order to prevent relitigation on remand of issues already decided. (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435; Sargon Enterprises, at p. 1505.) Although decisions of the Ninth Circuit are not binding on California state courts, California state courts should apply the law of the case doctrine to final Ninth Circuit opinions in the same case following a remand to state court. (See Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 97-98 (Adams).)
In the interests of judicial economy, we elect to apply the law of the case as established by the Ninth Circuit in Blantz I.
b) The Law of the Case as Established in Blantz I
In Blantz I, the Ninth Circuit rejected as a matter of law Blantz's claim that she had a constitutionally protected property interest in her claimed entitlement to have her placement with Corrections terminated only for cause after notice and a hearing. (Blantz I, supra, 727 F.3d at pp. 924-925.) Citing to Supreme Court decisions Blantz herself relied on, the Ninth Circuit explained that property rights are determined in accordance with state law. (Id. at p. 922, citing Board of Regents of State Colleges v. Roth (1972) 408 U.S. 564, 576-578 (Roth) and Perry v. Sindermann (1972) 408 U.S. 593, 599-603 (Sindermann); see Bishop v. Wood (1976) 426 U.S. 341, 344 ["A property interest in employment can, of course, be created by . . . an implied contract."].)
Roth involved a state university professor whose one-year teaching contract was not renewed. (Roth, supra, 408 U.S. at p. 566, 568.) Because state law provided that a professor could acquire tenure only after four years of year-to-year employment, the Supreme Court concluded that, although the professor "surely had an abstract concern in being rehired, . . . he did not have a property interest sufficient to require [u]niversity officials to give him a hearing when they declined to renew his contract of employment." (Id. at p. 578.)
Sindermann involved a state college instructor whose contract was not renewed after 10 years of year-to-year teaching. (Sindermann, supra, 408 U.S. at pp. 594-595.) He was provided neither an explanation for the nonrenewal of his contract, nor a hearing to challenge the basis for the decision. (Id. at p. 595.) The Supreme Court held that even though the instructor's contract did not provide for tenure, he nevertheless might be able to show he had "a legitimate claim of entitlement to job tenure" if the college had adopted a de facto tenure system based, for example, on his longevity of service "and from other relevant facts," such as the college's lack of an "explicit tenure system even for senior members of its faculty." (Id. at p. 602.)
The Ninth Circuit noted that a "key distinction" between Blantz and the plaintiffs in Roth and Sindermann is that "Blantz was not an employee of [Corrections]—she was an independent contractor." (Blantz I, supra, 727 F.3d at p. 923.) The Ninth Circuit assumed without deciding that an independent contractor could potentially have a constitutionally protected property interest in a government placement. (Id. at pp. 923-924.)
In her SAC, Blantz alleges a variety of state law bases for her claimed entitlement to have her placement with Corrections terminated only for cause after being afforded due process protections. These include: the Policy Documents, the Blantz-NOAH contract, the Corrections-NOAH contract, and the alleged implied Blantz-Corrections contract.
Blantz I held the allegations of the SAC (including documents Blantz identified) were insufficient to establish Blantz's entitlement to termination only for cause after notice and a hearing. (Blantz I, supra, 727 F.3d at pp. 924-925.) In doing so, the Ninth Circuit expressly addressed and rejected certain of the potential state law predicates of Blantz's claimed entitlement. First, the court found "the mere fact of an independent contractor relationship with the state is insufficient, on its own," to establish such an entitlement. (Id. at p. 924.) Second, the court found "Blantz's contract with NOAH certainly does not create such an entitlement." (Ibid.) Finally, the court found that "the documents she received during her orientation . . . do not support Blantz's claim that she could be terminated only for cause after notice and a hearing." (Ibid.)
Applying the law of the case as established in Blantz I, we conclude the SAC's allegations as a whole (certain of which the Ninth Circuit expressly addressed) are insufficient as a matter of law to establish a state law-based predicate for Blantz's claimed entitlement to have her placement with Corrections terminated only for cause after being afforded due process protections. We address the import of this finding in the following claim-by-claim discussion of Blantz's causes of action.
C. Interference Claims
(First, Second, and Third Causes of Action in the SAC)
The gravamen of Blantz's interference claims is that defendants engaged in intentional or negligent conduct that interfered with the existing or prospective relationships "among [Blantz], NOAH, and [Corrections]" "through which she was to be" or "probably would have" been placed "as a nurse practitioner in the [Corrections] system and/or at [Corrections] facilities." For several reasons, we find no error in the trial court's sustaining of defendants' demurrer without leave to amend as to these causes of action.
First and most fundamentally, Blantz attempts through her interference claims to impose tort liability for what is essentially Corrections' contract-based conduct in deciding not to continue Blantz's placement or to directly hire her. That is not the purpose of tort law. "Contract and tort are different branches of law. Contract law exists to enforce legally binding agreements between parties; tort law is designed to vindicate social policy." (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514.) The interference torts recognize this distinction by requiring that the defendant interfere with a contract or economic relationship between the plaintiff and a third party. Thus, the interference torts can be "committed only by 'strangers— interlopers who have no legitimate interest in the scope or course of the contract's performance.' " (PM Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55, 65 (Stewart), quoting Applied Equipment, at p. 514.)
The elements of intentional interference with contractual relations are "(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126, italics added.)
The elements of intentional interference with prospective economic advantage "are usually stated as follows: ' "(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant." [Citations.]' " (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (Korea Supply).)
The elements of negligent interference with prospective economic advantage are "(1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship." (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786, italics added.)
This principle applies even though Corrections is not a direct party to the Blantz-NOAH contract. Rather, it is sufficient that Blantz has alleged the existence of an overarching contractual or prospective economic relationship among herself, NOAH, and Corrections, the central purpose of which was Corrections performance (i.e., its continued willingness to place Blantz at one of its facilities). (See, e.g., Stewart, supra, 154 Cal.App.4th at p. 65 [singer's act of backing out of concert tour could not, as a matter of law, constitute interference with subcontracts between concert promoter and subpromoters where singer's performance was the central purpose of the subcontracts].) Indeed, the Blantz-NOAH contract demonstrates the centrality of Corrections' role—it expressly provides that it will terminate immediately upon Corrections' request that Blantz's placement with Corrections cease. Yet, Blantz alleges it is Corrections' (or its agents') conduct that resulted in the very disruption expressly contemplated by the Blantz-NOAH contract. Because all of Blantz's interference claims arise from existing or prospective economic relations to which Corrections is either a direct party or to which a Blantz-Corrections economic relationship is the central purpose, Blantz's interference claims fail as a matter of law.
An agent cannot be liable for interfering with its principal's contracts. (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1604; Shoemaker v. Myers (1990) 52 Cal.3d 1, 24.)
Second, Blantz's claims for intentional and negligent interference with prospective economic relations (the second and third causes of action in the SAC) fail for an additional reason. "[W]hile intentionally interfering with an existing contract is 'a wrong in and of itself' [citation], intentionally interfering with a plaintiff's prospective economic advantage is not." (Korea Supply, supra, 29 Cal.4th at p. 1158.) Thus, to establish a claim for interference with prospective economic advantage, a plaintiff must show that the defendant engaged in conduct that is "independently wrongful . . . , that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard." (Id. at pp. 1158-1159.) Blantz has not met this standard.
After oral argument, we requested supplemental briefing as to "whether Blantz has sufficiently alleged an independently wrongful act for purposes of" her prospective interference claims. Blantz's response identifies the following conduct: "[Corrections] knowingly provided her with unwarranted negative reviews, relied on those unwarranted negative reviews to terminate her, and did so without providing her the due process and other protections promised to her by [Corrections]," which "created an implied-in-fact contract between Blantz and [Corrections], . . . the . . . breach of which constitutes an independently wrongful act . . . ." This conduct falls short of the standard.
First, Blantz does not identify the standard by which providing her with unwarranted negative reviews (and terminating her placement based on them) is independently wrongful. She suggests in her supplemental briefing that she could amend her pleading to identify defamation as the standard of independent wrongfulness. However, as we explain in part III.G.2, post, Blantz has not identified any statement made by any defendant that satisfies the requirements of a defamation claim.
Second, because the law of the case established in Blantz I provides that Blantz was not entitled to pretermination due process procedures (Blantz I, supra, 727 F.3d at p. 924), Corrections' termination of Blantz's placement without providing these procedures cannot constitute the independent wrongfulness standard.
For these reasons, the trial court did not err in sustaining without leave to amend defendants' demurrer to the first, second, and third causes of action in Blantz's SAC.
D. Breach of Contract—Blantz-Corrections
(Fourth Cause of Action in the SAC)
Blantz's fourth cause of action alleges Corrections breached "[a]n implied or express term" of an alleged contract between her and Corrections that she "would not be terminated except for cause, and only after being afforded all due process protections required by law" and the Policy Documents. We conclude the law of the case as articulated in Blantz I bars this claim.
Because the law of the case disposes of this cause of action, we need not address defendants' contention that an independent contractor's relationship with a state agency is purely a matter of statute, not contract. Likewise, we need not address the contract-related issues on which we requested supplemental briefing after oral argument.
As noted, Blantz I explained that the existence and scope of a property interest subject to federal constitutional due process protection are determined under state law. (Blantz I, supra, 727 F.3d at p. 924.) In both federal and state court, Blantz maintained she had express or implied contractual rights to be terminated only for cause after being afforded due process protections. Although those contractual rights could have formed the basis of a constitutionally protected property interest (see Sindermann, supra, 408 U.S. at p. 602, fn. 7; Bishop v. Wood, supra, 426 U.S. at p. 344), the Ninth Circuit concluded as a matter of law that Blantz lacked a constitutionally protected property interest. Applying the law of the case doctrine, Blantz I dictates Blantz lacked a state law-based contractual entitlement to be terminated only for cause after being afforded due process protections. Accordingly, the trial court did not err in sustaining without leave to amend defendants' demurrer to Blantz's fourth cause of action.
E. Breach of Contract—Corrections-NOAH
(Fifth Cause of Action in the SAC)
In the fifth cause of action of the SAC, Blantz alleges that Corrections' termination of her placement without cause and without due process procedures constituted a breach of the Corrections-NOAH contract, of which Blantz claims to be an intended third party beneficiary. (See Civ. Code, § 1559 ["A contract, made expressly for the benefit of a third person, may be enforced by him [or her] at any time before the parties thereto rescind it."].) We find no error in the trial court's sustaining of Corrections' demurrer to this cause of action.
Because Blantz asserted the same claim in federal court, and because the Ninth Circuit concluded the Corrections-NOAH contract did not establish a constitutionally protected property interest in Blantz's placement with Corrections, the law of the case of Blantz I disposes of this cause of action.
This cause of action would also fail as a matter of law for another reason: Blantz's general allegations regarding the terms of the Corrections-NOAH contract reveal as a matter of law that she is not an intended third party beneficiary. Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782 is instructive. There, the appellate court determined as a matter of law—even without the contract before it—that a contract requiring a health care services plan to pay its enrollees' medical expenses was intended to benefit the enrollees, not the noncontracting physicians (like the plaintiff) who provided the services. (Id. at p. 795; see Hollister v. Benzl (1999) 71 Cal.App.4th 582, 586-587 [treating physician not employed by the HMO was not a third party beneficiary of the contract between the HMO and its patients and, accordingly, not bound by provisions in the patient-HMO contract].) At best, the noncontracting physicians "would be only incidental beneficiaries" who are not entitled to enforce the contract. (Ochs, at p. 795.)
Likewise here, the Corrections-NOAH contract, under which "NOAH [was obligated] to obtain specialized health care professionals to work at [Corrections'] medical facilities," was intended to benefit Corrections, not the identified health care professionals. The latter are, at best, merely incidental beneficiaries of Corrections' contractual obligation to NOAH to pay for providing health care professionals. This is insufficient to state a cause of action for breach of the Corrections-NOAH contract under a third party beneficiary theory. Accordingly, the trial court did not err in sustaining without leave to amend Corrections' demurrer to the fifth cause of action in the SAC.
F. Breach of Mandatory Duty—Government Code Section 815 .6
Government Code section 815.6 provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."
(Eleventh Cause of Action in the SAC)
The gap between the fifth cause of action just discussed and the 11th cause of action we now discuss is explained as follows. The sixth and seventh causes of action of the SAC were for defamation and false light, which were reasserted in the TAC (we discuss these claims below, after our discussion of the remaining claims asserted in the SAC). The eighth cause of action was for violation of Blantz's due process rights under the California Constitution, which she concedes is barred by the holding of Blantz I. Finally, the ninth and 10th causes of action were based on Blantz's federal due process rights, which were directly disposed of by Blantz I.
Blantz's 11th cause of action asserts that Corrections' failure to provide the due process procedures set forth in the Policy Documents violated a mandatory statutory duty owed by Corrections to Blantz. Because this claim rests on the assumption rejected in Blantz I that Blantz was entitled to pretermination due process procedures, the law of the case bars the claim.
Moreover, apart from the law of the case, we conclude Blantz's failure to address the merits of this claim on appeal has forfeited her challenge to the trial court's rejection of this claim. (See Cahill, supra, 194 Cal.App.4th at p. 956; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [forfeiture principles apply even where appellate court reviews issue de novo]). On appeal, Blantz refers to this cause of action only to state that it is found in the SAC and that Blantz I does not bar any of her causes of action under the doctrines of claim preclusion, issue preclusion, or the law of the case. By failing to present any argument as to the facts or law applicable to the underlying merits of the claim, Blantz has failed to address the merits raised by Corrections' briefing to the trial court.
Accordingly, Blantz has not met her burden of establishing that the trial court erred in sustaining without leave to amend Corrections' demurrer to the 11th cause of action in the SAC.
G. Defamation and False Light
(First and Second Causes of Action in the TAC)
Blantz's TAC asserts two causes of action against the TAC defendants: "Defamation/Libel," and "Violation of Right to Privacy—False Light." Both causes of action are based on the same underlying facts.
1. Background
In February 2008 (approximately two months after Corrections ended her placement at Calipatria), Blantz applied directly to Corrections for work. After she submitted her application, a "third party"—identified in her appellate briefing as "someone in [Corrections]"—informed Blantz that "he was informed that she failed to meet [Corrections'] requirements [for employment]." When Blantz "requested clarification as to what requirements she had failed to meet," she "was informed by the third party that he was told she had 'poor recommendations from her previous work at [Corrections]' and no longer met their requirements."
Blantz alleges these were defamatory statements that damaged her reputation and made "it impossible for her to obtain work as a nurse practitioner within the [Corrections] system." She further alleges these statements "showed [her] in a false light, namely as one who was not qualified or competent to practice in her chosen profession." In connection with these causes of action, Blantz seeks damages for lost compensation, injury to her reputation, and for the "shame, mortification, mental anguish, anxiety, worry, humiliation and hurt feelings" she suffered.
According to Blantz, the TAC defendants "made false statements about [her] when they published the unsupported negative performance reviews of [her], stated that she failed to meet State requirements for employment with [Corrections], and provided her with 'poor recommendations' concerning her previous work at [Corrections]."
2. Defamation
"The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage." (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 (Wong); see Taus v. Loftus (2007) 40 Cal.4th 683, 720 (Taus); John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312 (Doe 2).) Defamation may be affected in writing (libel) or orally (slander). (Civ. Code, §§ 44, 45, 46.) Blantz's TAC designates her defamation claim as one for libel.
Despite this designation, it is unclear from the substantive allegations of the TAC (and the briefing on appeal) whether the statements Blantz challenges as defamatory were made in writing or orally. In any event, we will accept Blantz's designation because our determination of whether the challenged statements are actionably defamatory does not turn on the manner in which they were published.
"Because a defamatory statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability." (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1261; see Doe 2, supra, 1 Cal.App.5th at p. 1313 ["an allegedly defamatory statement must make an assertion of fact that is provably false"].) Whereas " 'statements of fact may be actionable as libel, statements of opinion are constitutionally protected. [Citation.]' " (Wong, supra, 189 Cal.App.4th at p. 1370.) "That does not mean that statements of opinion enjoy blanket protection." (Ibid.) "On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation." (Ibid.)
"It is the province of the court to determine whether a statement is actionable as a statement of fact susceptible of a defamatory meaning, versus a nonactionable statement of opinion privileged under the First Amendment." (Doe 2, supra, 1 Cal.App.5th at p. 1312; Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 ["This is a question of law to be decided by the court."].) In making this determination, courts consider the " 'totality of the circumstances.' " (Wong, supra, 189 Cal.App.4th at p. 1370; Baker, at p. 260.) Relevant circumstances include "the language of the statement," "the context in which the statement was made," and "the knowledge and understanding of the audience to whom the publication was directed." (Baker, at pp. 260-261.) "This contextual analysis demands that courts look at the nature and full content of the communication . . . ." (Id. at p. 261; see Doe 2, supra, 1 Cal.App.5th at p. 1313 [" 'The context of a defamatory imputation includes all parts of the communication that are ordinarily heard or read with it . . . .' "].)
In the employment context, there is "strong judicial disfavor for libel suits based on communications in employment performance reviews . . . ." (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 964 (Jensen).) Jensen "h[e]ld that unless an employer's performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior [citation], it cannot support a cause of action for libel. This is true even when the employer's perceptions about an employee's efforts, attitude, performance, potential or worth to the enterprise are objectively wrong and cannot be supported by reference to concrete, provable facts." (Id. at p. 965.) Thus, the Jensen court affirmed the trial court's grant of nonsuit against the plaintiff whose employee evaluation stated he "had been the subject of some third party complaints, was not carrying his weight, had a negative attitude in dealing with others, evidenced a lack of direction in his project activities and was unwilling to take responsibility for the projects he oversaw." (Id. at p. 966.)
Applying Jensen, the court in Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137 (Gould) concluded as a matter of law that a statement by the plaintiff's supervisor accusing him of " 'poor performance' " was "clearly" a nonactionable statement of opinion. (Id. at p. 1154.) However, the supervisor's statement that the plaintiff " 'made a $100,000 error' " in estimating a particular bid (id. at p. 1153) was a defamatory "statement of fact susceptible to proof or refutation by reference to concrete, provable data" (id. at p. 1154).
Considering the totality of the circumstances, we conclude that neither of Blantz's defamation predicates—that "she failed to meet [Corrections'] requirements" and "had 'poor recommendations' from her previous work at [Corrections]"—constitutes an actionable statement of fact; rather, both constitute nonactionable statements of opinion. Under Jensen and Gould, assertions that a third party within Corrections told Blantz he had heard that she had poor recommendations (or, inferentially, that Ruddy's audit of her patient charts resulted in an unfavorable assessment that led to her termination) is clearly nonactionable evaluative opinion of an employee's performance. (Jensen, supra, 14 Cal.App.4th at pp. 964-965; Gould, supra, 31 Cal.App.4th at p. 1154.) This is so, even if the underlying negative recommendations were unsupported, as she alleges is the case with Ruddy's audit. (Jensen, at p. 965.)
Similarly, the assertion that Blantz failed to meet Corrections' requirements also fails. Although this statement would be a closer call in isolation, when properly viewed in context it becomes clear the statement is one of opinion. Specifically, when told by the third party within Corrections that she did not meet Corrections' requirements, Blantz asked for clarification. In response, the third party advised Blantz he was informed that she had " 'poor recommendations' " from her previous work. Thus, the statement about her meeting Corrections' requirements was qualified by the clearly nonactionable statement of opinion about her poor recommendations stemming from her prior work at Corrections. (See Blantz I, supra, 727 F.3d at p. 920 ["she was informed that she had received poor recommendations and therefore did not meet the job requirements"], italics added.)
Even if the statement about requirements were not so qualified, we would nonetheless conclude under the totality of circumstances that it constitutes a nonactionable statement of opinion because of the subjective nature of what it means to meet Corrections' requirements. (See, e.g., Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1554 [statements regarding plaintiff's "unsuitability for a teaching position" are nonactionable opinion]; Botos v. Los Angeles County Bar Assn. (1984) 151 Cal.App.3d 1083, 1088-1090 [county bar association's statement that a judge is " 'not qualified' " is nonactionable statement of opinion]; Taus, supra, 40 Cal.4th at p. 720 [suggestion "that plaintiff was unfit for military service" is nonactionable statement of opinion]; Moyer v. Amador Valley Joint Union High School Dist. (1990) 225 Cal.App.3d 720, 725 [statement that plaintiff " 'is the worst teacher at FHS' " is nonactionable statement of opinion].)
Blantz cites Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, which, in dicta, distinguished one aspect of Jensen, supra, 14 Cal.App.4th 958. Specifically, Mamou noted that "at least one" of the allegedly defamatory statements in Jensen—"that third parties had complained about the plaintiff" (Mamou, at p. 728)—"could be found to convey a provably false assertion of fact" (ibid.). However, Mamou is readily distinguishable. There, the fact-specific defamatory statements—that the plaintiff was funneling sales leads from his former employer and that he was "unethical"—were "linked to specific customer numbers" and "flat[] state[ments]" by the former employer's managers that they possessed supporting evidence. (Id. at pp. 727-728, italics omitted.) That was not the case in Jensen (or here). Moreover, because the Mamou court reversed on the basis of the statements just noted, the court did not address whether statements that the plaintiff " 'was a "poor performer" ' " or " 'was "terminated for poor performance" ' " were actionable statements of fact or nonactionable statements of opinion. (Mamou, at pp. 710, 727-728.)
For these reasons, we conclude the trial court did not err in sustaining the TAC defendants' demurrer to Blantz's defamation claim.
Because of this conclusion, we need not address the TAC defendants' additional arguments that Blantz failed to plead her claim with sufficient specificity or that the TAC defendants are shielded by privilege (Civ. Code, § 47, subd. (c)).
3. False Light
Blantz alleges in her false light cause of action that "[i]n publishing the defamatory statements referenced" in the TAC, the TAC "defendants publicized material that showed [her] in a false light, namely, as one who was not qualified or competent to practice in her chosen profession." The trial court sustained the TAC defendants' demurrer to this cause of action as superfluous to Blantz's defamation cause of action. We find no error.
" 'False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.' [Citation.] 'A "false light" claim, like libel, exposes a person to hatred, contempt, ridicule, or obloquy and assumes the audience will recognize it as such.' [Citation.] ' "A 'false light' cause of action is in substance equivalent to a libel claim, and should meet the same requirements of the libel claim . . . ." ' [Citation.] Indeed, '[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.' " (Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1264.)
Because Blantz's false light cause of action is based on the same allegedly defamatory statements asserted in her defamation cause of action, we conclude the false light claim is superfluous to her defamation claim. Accordingly, the trial court did not err in sustaining the TAC defendants' demurrer to Blantz's false light cause of action.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.
HALLER, J. WE CONCUR: NARES, Acting P. J. AARON, J.