California Employment Law Update : Labor and Employment Lawyers & Attorneys : Proskauer Rose Law Firm : Wage & Hour Laws, Disability, Workplace Safety

The Nethercutt Collection v. Regalia, 172 Cal. App. 4th 361 (2009)

Michael Regalia sued The Nethercutt Collection for wrongful termination and slander after he was terminated as its president. The jury rejected the wrongful termination claim, but awarded Regalia $750,000 in damages for “assumed harm” to his reputation arising from two statements attributable to the employer: (1) that Regalia had demanded a commission or finder’s fee of about $230,000 to which he was not entitled and (2) that Regalia was fired because other employees would not work for him and/or would leave if he remained employed. The Court of Appeal reversed the judgment on the ground that because Regalia had not proved slander per se (i.e., statements that would injure him in respect to his office, profession, trade or business, etc.) he was required but had failed to prove actual damages.

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Dible v. Haight Ashbury Free Clinics, Inc., 170 Cal. App. 4th 843 (2009)

Leah Dible, who was employed by the Haight Ashbury Free Clinics as a psychiatric counselor, was terminated after a jail inmate as to whom she had some level of responsibility committed suicide. Dible alleged that when she was terminated, she was told that her negligence had resulted in the inmate’s suicide and that statements to that effect were made to the Employment Development Department (“EDD”) in connection with her claim for unemployment benefits. In response to Dible’s defamation claim, defendants filed a demurrer and an anti-SLAPP (strategic lawsuits against public participation) motion. The trial court granted the motion, and the Court of Appeal affirmed, holding that defendants’ statements to the EDD were “protected activity” within the meaning of the anti-SLAPP statute and that Dible could not establish a probability of success on her defamation claim because there was no alleged publication or republication to a third person as is required to establish such a claim. See also Miller v. City of Los Angeles, 169 Cal. App. 4th 1373 (2008) (employee’s claims of intentional infliction of emotional distress and defamation arose out of protected activity and were properly dismissed under the anti-SLAPP statute).

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Mamou v. Trendwest Resorts, Inc., 165 Cal. App. 4th 686 (2008)

Tamer Mamou was employed as a project director for Trendwest (a company that sells timeshares at various resort locations) when he was terminated after approximately 12 years of employment. Trendwest terminated Mamou after it became aware that he had filed documents with the California Secretary of State in which it appeared Mamou was seeking to establish a competing resale company. Mamou testified, however, that his attempts to explain the situation were rebuffed and that one of the supervisors who was in the termination meeting said to him, “I’m disappointed in you, my Arab friend.” Another supervisor who was involved in the termination testified that although Mamou was not terminated for performance-related reasons, he had instructed HR to “take the lead on building a file relating to Tamer’s performance over the last six months” – and that specific areas to be addressed included “disability claims” and other “HR related claims.” Mamou also offered evidence of negative references and allusions to his Middle Eastern national origin and of various disparaging comments that were made about him after his termination. Mamou sued for national origin discrimination and retaliation for having opposed the company’s adverse treatment of employees who exercised their right to take family medical leave, and he also asserted a defamation claim. Although the trial court granted summary judgment to Trendwest, the Court of Appeal reversed, holding that “there was ample evidence to support…an inference [that Trendwest’s claimed reason for the firing] was false, beginning with the fact that Trendwest never rested on a single coherent explanation for its firing of Mamou, and that several if not all of its explanations were, to put it mildly, questionable.” The Court also found a triable issue of material fact as to whether malice existed, thus vitiating the qualified privilege defense to the alleged defamation. Cf. Parra v. Bashas’, Inc., 2008 WL 2891234 (9th Cir. July 29, 2008) (district court abused its discretion in failing to certify plaintiffs’ class action alleging national origin discrimination in pay practices); Lukovsky v. City and County of San Francisco, 535 F.3d 1044 (9th Cir. 2008) (national origin and race discrimination claims based on failure to hire were barred by statute of limitations).
 

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SDV/ACCI, Inc. v. AT&T Corp., 522 F.3d 955 (9th Cir. 2008)

SDV/ACCI (a consulting and staffing service company) and its principals sued AT&T after one of AT&T’s employees sent several e-mails in and outside the company stating that SDV/ACCI would no longer be providing services to AT&T because SDV/ACCI was having “financial difficulties.” The district court granted summary judgment to AT&T, but the Ninth Circuit reversed in part, holding that the common interest privilege (Cal. Civ. Code § 47(c)) did not bar the defamation action because there was enough circumstantial evidence to permit a reasonable trier of fact to find that malice primarily motivated the publication regarding SDV/ACCI’s alleged financial difficulties and that the AT&T employee did not have a good faith belief in the truth of the statements she had made.
 

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Nygård, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027 (2008)

After quitting his employment with Nygård, Timo Uusi-Kerttula gave an interview about his work experiences to a Finnish magazine. Nygård then sued Timo and the magazine for a variety of claims, including breach of contract and defamation. The trial court granted defendants’ motion to strike pursuant to the anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16. The Court of Appeal affirmed dismissal of the complaint, holding that defendants had met the criteria of the statute and had established a probability of prevailing in their defenses against Nygård’s claims. See also Neville v. Chudacoff, 2008 WL 650658 (Cal. Ct. App. Mar. 12, 2008) (employer’s attorney’s letter to customers accusing former employee of misappropriation of trade secrets was protected by anti-SLAPP statute); cf. Burdette v. Carrier Corp., 158 Cal. App. 4th 1668 (2008) (some of employee’s defamation claims were precluded by prior federal court judgment).
 

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Perez v. Uline, Inc., 68 Cal. Rptr. 3d 872 (Cal. Ct. App. Dec. 6, 2007)

On the day that Brian Perez, a captain in the United States Marine Corps Reserves, returned to work after duty with the Reserves, his employment with Uline, Inc. was terminated. He was presented with a “Severance Agreement and Release,” offering him severance in the amount of six weeks’ salary in exchange for his execution of the release. The agreement stated that Perez had seven days to accept it and advised him “to consult with an advisor of his choice prior to executing it.” On the seventh day, Perez signed the release. Perez subsequently sued Uline and three of its employees, alleging wrongful termination in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), breach of oral contract, defamation and failure to pay overtime in violation of the California Labor Code. The Court of Appeal enforced the release and affirmed dismissal of Perez’s claims with the exception of the claim arising under USERRA, which expressly states that a contract may not limit the protections of the statute.

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