Opinion
C082258
01-03-2018
KENNETH STANLEY, Plaintiff and Appellant, v. CALIFORNIA HIGHWAY PATROL et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 34-2014-00163977-CU-DF-GDS)
Following entry of judgment against him, plaintiff and appellant Kenneth Stanley challenges the trial court's order granting summary judgment in favor of defendants and respondents California Highway Patrol (CHP), Steve Ramos, Jason Reardon, Dane Lobb, B. O'Keefe, B.J. Whitten, Matthew Otterby, and Heidi Carroll. On appeal, he contends the trial court erred in excluding evidence, and in awarding summary adjudication as to his claims for defamation, harassment, negligence, and for violating the Tom Bane Civil Rights Act (the Bane Act; Civ. Code, § 52.1). We shall affirm the judgment.
Added by Statutes 1987, chapter 1277, section 1, page 4544.
FACTUAL AND PROCEDURAL BACKGROUND
Stanley filed a form complaint alleging causes of action for defamation in violation of Civil Code sections 44, 45, 45a, and 46; and negligence based on sexual harassment, discrimination, and retaliation in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) and Civil Code sections 51 (the Unruh Civil Rights Act; the Unruh Act), 52, 52.1 (the Bane Act), and 52.3, all based on acts or omissions committed by defendants on June 9, 2013. The only factual allegations made in the complaint are those incorporated by reference from Stanley's complaint to the Department of Fair Employment and Housing. In it, he alleges that for nearly two years "[p]ornographic, highly offensive material featuring [Stanley's] face was prominently displayed in the San Francisco Area office of the California Highway Patrol" above the desks of defendants Reardon and Ramos, and observable by anyone walking through the office, during a period in which Stanley was not working in that office. On June 9, 2013, Stanley personally removed the offending material. One was an image of Stanley's face superimposed on the well-known magazine cover image of Demi Moore's nude pregnant body with a modified headline reading " 'Flock is Finally Unfeathered.' " The other image is Stanley's face superimposed on a man wearing earrings and standing next to George Michael. Stanley claims that the posting of the two images was sexual harassment and discrimination based on sexual orientation that created a hostile work environment and was defamatory.
Further statutory references are to the Civil Code in effect at the time of the alleged acts unless otherwise indicated.
The image used is the August 1991 Vanity Fair cover featuring then-pregnant actress Demi Moore.
The image used was of the 1980's pop band, Wham!
Defendants moved for summary judgment. As to the defamation claims, defendants argued the images were humorous spoofs or parodies of Stanley, and defendants Lobb, Otterby, O'Keefe, and Whitten did not publish any defamatory material. As to the FEHA claims, defendants argued there was no pervasive or severe harassment, defendant Carroll's conduct was all conducted outside the workplace and thus could not be the basis of a hostile work environment claim, and defendants Lobb, Otterby, O'Keefe, and Whitten could not be liable for failing to prevent harassment. As to the negligence claims, defendants argued the claim failed because it was premised on the factual allegations of the defamation claim, and defendants Lobb, Otterby, O'Keefe, and Whitten owed Stanley no duty to prevent harm from a third party. Defendants argued the Unruh Act does not apply to employment. They also argued Stanley could not prevail on a claim based on a violation of the Bane Act, because there was no threat, intimidation, or coercion. And, section 52.3 does not create a private right of action; neither was there evidence of a pattern or practice of law enforcement misconduct.
In his opposition to the motion for summary judgment, Stanley claimed he had been the subject of ongoing harassing conduct since July 2010. In his declaration in opposition to the motion, he outlined several instances of what he viewed as harassing conduct culminating in the removal in 2013 of the offensive material identified in his complaint. His declaration outlining these occurrences was the primary basis of Stanley's claimed triable issues of material fact warranting denial of the motion for summary judgment.
Defendants raised objections to 27 separate portions of Stanley's declaration on hearsay, relevance, and foundational grounds. They also objected to portions of a deposition transcript relied upon by Stanley in his opposition. Through these two sets of objections, defendants objected to the evidence underlying all of Stanley's additional material facts.
The trial court sustained all of defendants' evidentiary objections in a blanket ruling. It noted that in support of their motion for summary judgment, defendants had presented evidence the material had been created as greeting cards by Carroll on her home computer as a spoof of Stanley and sent to Ramos and Reardon at their home addresses. Ramos and Reardon thought the greeting cards were funny and posted them at their desks at work. The trial court noted that Stanley's declaration contains evidence of events irrelevant to the claims within the scope of Stanley's complaint, which was limited to the two greeting cards. Ultimately, the trial court granted defendants summary judgment after granting summary adjudication as to all causes of action.
DISCUSSION
Stanley raises several challenges to the trial court's award of summary judgment. First, he challenges the trial court's evidentiary rulings, claiming it was error to sustain defendants' objections without explanation and that the trial court should not have disregarded the evidence in his declaration regarding his treatment prior to transfer from the San Francisco Area office. Next, with regard to the defamation cause of action, he claims the trial court erred in finding defendants Lobb, Otterby, O'Keefe, and Whitten did not publish defamatory material. Then, with respect to the FEHA cause of action, he contends the trial court erred in finding the alleged harassment was neither severe nor pervasive and that defendants Lobb, Otterby, O'Keefe, and Whitten had no duty to prevent harassment. With respect to the negligence cause of action, he claims the trial court erred when it found the cause of action failed because it was based on the same facts as the defamation claim and that defendants Lobb, Otterby, O'Keefe, and Whitten owed him no duty to prevent harm from a third party. Finally, he claims the trial court erred in finding there was no threat, intimidation, or coercion to substantiate a cause of action for violating the Bane Act. We conclude the trial court committed no prejudicial error and affirm the judgment.
Stanley does not challenge on appeal the trial court's award of summary adjudication in defendants' favor as to his causes of action for violations of sections 51, 52, or 52.3.
1.0 Standard of Review
We review de novo a trial court's decision to grant a summary judgment motion. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1346.) We may affirm the trial court's ruling on any ground set forth in the motion for summary judgment, regardless of the grounds relied on by the trial court. (American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, 747-748.)
A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) These issues are framed by the allegations of the complaint. (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 80 (Higgins-Williams).) On a motion for summary judgment by a defendant, the moving party "has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2); Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274 (Lyle).) Thus, "[s]ummary judgment is properly granted to a defendant who shows that an element of the plaintiff's cause of action cannot be established, unless the plaintiff sets forth specific facts showing a triable issue of material fact as to that element." (Higgins-Williams, supra, 237 Cal.App.4th at pp. 80-81.)
Additionally, we note "[s]ummary judgment is a favored remedy in defamation . . . cases due to the chilling effect of protracted litigation on First Amendment rights. [Citation.] '[T]he courts impose more stringent burdens on one who opposes the motion and require a showing of high probability that the plaintiff will ultimately prevail in the case. In the absence of such showing, the courts are inclined to grant the motion and do not permit the case to proceed beyond the summary judgment stage.' " (Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1498-1499 (Couch).)
2.0 Evidentiary Rulings
Stanley raises two challenges based on the trial court's evidentiary rulings. First, he contends it was error for the trial court to sustain defendants' evidentiary objections without explanation. Second, he contends the trial court's disregard of the factual assertions in his declaration submitted in opposition to the motion for summary judgment as "beyond the scope" of the complaint was improper. Though we agree it was error for the trial court to sustain defendants' objections without explanation, we conclude Stanley has failed to show that error was prejudicial. We also conclude the trial court did not err in disregarding his factual assertions as exceeding the scope of his complaint.
As to his first contention, Stanley asserts the trial court erred in sustaining defendants' evidentiary objections without explanation. He correctly argues the use of a blanket ruling is an abuse of discretion. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 857; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255.) However, Stanley has not shown in this instance that the trial court's error in issuing a blanket ruling sustaining the objections was prejudicial. (Serri, supra, at pp. 857-858 [" 'an erroneous evidentiary ruling requires reversal only if "there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error" ' "].)
For example, Stanley does not argue that any specific objection would have been overruled had the trial court provided individual evidentiary rulings. Instead, he claims in conclusory fashion that "the court's error in issuing a blanket evidentiary ruling would in fact change the outcome because Stanley's evidence creates a triable issue of material fact . . . ." In support of this assertion, he cites a portion of the trial court's ruling, which reads that "[a]ll evidence concerning how plaintiff was allegedly treated by co-workers before he left the San Francisco office might have been relevant to the issue of malice if plaintiff's claim for defamation survived, but these facts are irrelevant to plaintiff's other causes of action because they are beyond the scope of his Complaint." Contrary to Stanley's assertion, the trial court's statement does not mean that if the evidence had been admitted it would have created a triable issue of material fact. Rather, the statement shows the trial court reviewed the evidence and found it irrelevant to any cause of action other than for defamation, and that cause of action failed for other reasons. Thus, Stanley has not shown the trial court's blanket exclusion of his evidence was prejudicial.
As to his second contention, Stanley asserts the trial court erred when it found the factual assertions made in his declaration in opposition to the motion for summary judgment exceeded the scope of the complaint. Essential to our review of this challenge is the well-established rule that " '[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citation.] 'The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.' [Citations.] The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) Additionally, " '[t]he [papers] filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.' " (Nash v. Fifth Amendment (1991) 228 Cal.App.3d 1106, 1116.)
We note for counsel's edification that his citation to the trial court's ruling as opposed to its order granting summary judgment is sufficient grounds to reject this contention outright as it is incumbent on the appellant to provide accurate citations to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(C); see also Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 [" 'It is neither practical nor appropriate for us to comb the record on [the appellant's] behalf.' "].) Regardless, we address the claim on the merits. --------
Here, the only factual allegations in the complaint were in the form of an incorporated "statement of facts" presented to the Department of Fair Employment and Housing. In it, Stanley complains that "[p]ornographic, highly offensive material featuring [Stanley's] face was prominently displayed" above the desks of defendants Reardon and Ramos for nearly two consecutive years, after he transferred to another office and until he personally removed them. While he indicates the inscription inside one card refers to an incident in which he refused to change his work schedule and that both cards featured a photograph that had been stolen from a picture board in the office in August 2011, it was the posting of the two images that he claimed created a hostile work environment and caused defamation of character. Contrary to Stanley's claim, these oblique references—to an inscription regarding a work schedule change and a theft of a photograph—are not sufficient to bring "the parties' prior history . . . within the general area of issues framed by the complaint." Thus, Stanley's additional factual allegations in his declaration were not relevant to the causes of action for negligence, violation of FEHA, or violation of the Unruh Act or the Bane Act, or section 52.3. Plausibly, as the trial court indicated, the facts may have had some relevance to a showing of malice for the defamation cause of action, but as we shall explain, that cause of action fails for other reasons. Therefore, the trial court did not err in excluding this evidence.
3.0 Defamation Cause of Action
Stanley challenges the trial court's award of summary adjudication as to his cause of action for defamation. "The tort of defamation 'involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.' " (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Here, defendants argued in their motion for summary judgment that the complained-of material is not defamatory and that defendants CHP, Lobb, O'Keefe, Whitten, and Otterby did not publish the material. Like the trial court, we conclude Stanley has not offered evidence to create a triable issue of material fact whether the posted greeting cards were reasonably susceptible of a defamatory meaning. Based on that conclusion, we need not reach the other issue as the defamation cause of action necessarily fails if the material was not defamatory.
Here, the offending material alleged by Stanley is two pictures with some writing. Thus, his defamation claim is based on the material being libelous. (§ 44 [libel is a form of defamation].) "Libel" is defined as "a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." (§ 45.) In determining whether material is libelous, we look both to the explicit statement or image, as well as to " 'what insinuation and implication can be reasonably drawn from the communication.' " (Alszeh v. Home Box Office (1998) 67 Cal.App.4th 1456, 1461.) We look not only to the material itself, but to the totality of the circumstances, including the original context and the intent of the publisher. (See ibid.; Couch, supra, 33 Cal.App.4th at pp. 1500-1501.)
Whether material is defamatory—that is, whether it is reasonably susceptible of an interpretation which implies a provably false assertion of fact—is a question of law for the court to decide. (Couch, supra, 33 Cal.App.4th at p. 1500.) In making this decision, we consider whether the average reader, i.e., a reasonable member of the audience to which the material was originally addressed, would interpret the material as implying a provably false assertion of fact. (Ibid.) Even material intended as humor or parody may convey a defamatory meaning in certain circumstances. (Couch, at pp. 1500-1501, citing Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 553.) If, however, the reasonable reader, hearer, or observer of the material would understand that it "could not have been intended to convey a provably false assertion of fact, but [was] clearly a mere joke or parody, there is no defamation as a matter of law." (Couch, at p. 1501.)
Here, though Stanley has not actually articulated in his brief the provably false assertions of fact that he asserts may reasonably be inferred from the two greeting cards, we can only presume, based on the content of the images themselves, that they are (1) that he is romantically involved with a famous and openly gay male singer, and (2) that he is a gay transvestite who dresses as a pregnant woman. Like the trial court, given the context in which these images appear, and the original audience for whom they were created, it is not reasonable to infer that the cards present any false assertion of fact. These birthday cards were clearly a parody created by a coworker of Stanley for coworkers of Stanley, all of whom disliked Stanley because they found him obnoxious, in order to mock him for his hairstyle and his opinions. The background images on which Stanley's face was superimposed are two readily recognizable images from the popular culture, which any reasonable reader would have construed as a joke or parody. Indeed, the recipients of the cards posted them because they found them funny, which was their creator's intent. That any person seeing the images would think Stanley was romantically involved with George Michael or that he is a transvestite is a laughable assertion that merits no further discussion. The trial court did not err in awarding summary adjudication in defendants' favor as to the defamation cause of action.
4.0 FEHA Cause of Action
Stanley argues the trial court erred in summarily adjudicating his cause of action based on FEHA. He claims the trial court erroneously found the alleged harassment was neither severe nor pervasive, and in finding that defendants Lobb, O'Keefe, Whitten, and Otterby had no duty to prevent harassment. Concluding the trial court did not err in finding the harassment was neither severe nor pervasive, we do not reach Stanley's other argument.
To state a prima facie claim for hostile work environment sexual harassment, a plaintiff must establish that: (1) he or she was subjected to unwelcome sexual advances, conduct, or comments; (2) the harassment complained of was based on sex; and (3) the harassment was sufficiently severe or pervasive as to alter the conditions of his or her employment and create an abusive working environment. (Lyle, supra, 38 Cal.4th at p. 279.) "Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609.) In evaluating the totality of the circumstances, some of the factors to consider are: "(1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred." (Id. at p. 610.)
Looking beyond the glaring fact that the complained-of conduct did not occur in Stanley's daily work environment (according to his own factual allegations, he did not work in the same CHP office where the cards were posted during the time they were displayed), we conclude the trial court did not err in finding as a matter of law that the harassment was not sufficiently severe or pervasive to substantiate a cause of action for sexual harassment. The unwelcome acts were the posting by two former coworkers of two doctored greeting cards that show Stanley's face on a pregnant naked woman's body and on a man standing next to an openly gay male singer. The cards were posted for two consecutive years, but the factual allegations indicate that Stanley saw them only on the day he removed them. It is difficult to discern, given the totality of the circumstances, how this conduct was " 'sufficiently severe or pervasive [as] to alter the conditions of [Stanley's] employment . . . .' " (Lyle, supra, 38 Cal.4th at p. 279.) As is observed frequently, "the FEHA is 'not a "civility code" and [is] not designed to rid the workplace of vulgarity.' " (Lyle, at p. 295.) While the posting of the cards was undoubtedly offensive to Stanley and others, it did not in this case rise to the level of sexually harassing conduct prohibited by the FEHA. Therefore, the trial court did not err in summarily adjudicating the FEHA cause of action in favor of defendants.
5.0 The Bane Act Cause of Action
The Bane Act (§ 52.1, subds. (a)-(b)) permits an individual to pursue civil remedies against a person who "interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state . . . ." (§ 52.1, subd. (a).) However, "[s]peech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b) [of section 52.1], except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat." (§ 52.1, subd. (j).) Here, the only allegation in the complaint was the posting of two doctored greeting cards above two employees' work stations. There was no factual allegation of any physical threat, intimidation, or coercion, or any evidence or allegation that a threat of violence had been made against Stanley. Accordingly, Stanley's cause of action for a violation of the Bane Act fails as a matter of law.
6.0 Negligence Cause of Action
We have concluded the trial court properly entered summary adjudication in defendants' favor as to Stanley's causes of action for defamation, and for violations of FEHA and the Bane Act. He alleged no separate factual allegations to support a cause of action for general negligence. Insofar as Stanley's cause of action for negligence would be dependent upon defendants publishing false assertions of fact about Stanley, or committing severe or pervasive sexual harassment that made his work environment hostile, or threatened him with violence or engaged in intimidation or coercion, the negligence cause of action is superfluous and fails for the same reasons the specific causes of action fell. (See Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 241-246; see also Couch, supra, 33 Cal.App.4th at p. 1504.) Therefore, the trial court properly entered summary adjudication in defendants' favor as to that cause of action as well.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ, J. We concur: HULL, Acting P. J. MURRAY, J.