Charlot v. Carefusion Resources CA4/1

• Court: California Court of Appeal
• Decided: January 14, 2016
• Docket: D066320
• Status: Unpublished

Opinion

Filed 1/14/16 Charlot v. Carefusion Resources CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DAVID CHARLOT, D066320

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2012-00084769- CU-WT-CTL) CAREFUSION RESOURCES, LLC,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Joan M.

Lewis, Judge. Affirmed.

Law Office of Johanna S. Schiavoni, Johanna S. Schiavoni; Wingert Grebing

Brubaker & Juskie and Alan Brubaker for Plaintiff and Appellant.

Wilson Turner Kosmo, Lois M. Kosch and Katherine M. McCray for Defendant

and Respondent.

David Charlot was an at-will employee of CareFusion Resources, LLC

(CareFusion). After one of Charlot's subordinates made a complaint against him,

CareFusion hired outside counsel to conduct an investigation. Based on the results of the investigation, CareFusion terminated Charlot's employment "for cause," but only after

Charlot rejected an offer to voluntarily resign and receive a severance package.

Charlot brought suit against CareFusion alleging a variety of claims arising out of

his termination. CareFusion filed a motion for summary judgment, and while that motion

was pending, Charlot moved for leave to file an amended complaint. The court denied

Charlot's motion and later granted CareFusion's motion for summary judgment. Charlot

appeals the ensuing judgment.

Charlot contends the superior court erred in denying his motion for leave to file an

amended complaint and in granting CareFusion's motion for summary judgment. He also

challenges many of the trial court's evidentiary rulings in connection with the motion for

summary judgment. We find no merit in Charlot's arguments. Thus, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

CareFusion is a San Diego based international healthcare and medical technology

company. Charlot is a graduate of Columbia Business School who worked as a treasury

director at Tyco International in New Jersey. Charlot's supervisor at Tyco was

Amarendra Duvvur who joined CareFusion as its treasurer in June 2009.

On June 17, 2009, CareFusion offered Charlot the position of assistant treasurer,

to assist in building CareFusion's treasury department when the company was preparing

to spin off from its parent company, Cardinal Health, Inc. Duvvur actively recruited

Charlot to join CareFusion. Charlot eventually accepted the position and signed an offer

letter that indicated the position was "at will." He began working for CareFusion in July

2009.

2 In his role as assistant treasurer, Charlot directly supervised a team of managers

and analysts. On or about January 16, 2012, Nishanthe Ratnayake, one of Charlot's direct

reports and a manager in the treasury department, filed an internal complaint against him.

The complaint alleged Charlot retaliated against Ratnayake and bullied him because

Ratnayake previously raised concerns regarding a disclosure in a CareFusion 10Q filing

and other issues relating to financial reporting. Ratnayake also claimed Charlot created a

hostile work environment in the treasury department.

CareFusion hired Richard Freeman, an attorney at Sheppard Mullin Richter &

Hampton, to investigate the complaint. CareFusion's director of human resources

assisted in the investigation. Freeman spent about six weeks investigating Ratnayake's

complaint and interviewed approximately 15 employees. Freeman interviewed both

Charlot and Ratnayake multiple times. During the course of the investigation, hundreds

of documents, including emails, were reviewed. Freeman also engaged subject matter

experts in treasury function from PriceWaterhouseCoopers (PWC) to advise him on

aspects of treasury work at issue in the investigation.

On March 19, 2012, Freeman submitted a written report memorializing his

findings (Freeman Report), accompanied by numerous exhibits, a detailed chronology,

and analysis of a warning letter Charlot had issued to Ratnayake.

Freeman found substantial evidence to support Ratnayake's allegations.

Specifically, he found evidence supporting the claim that Charlot retaliated against

Ratnayake on multiple occasions for raising financial concerns both internally and to the

Securities and Exchange Commission (SEC). For example, Freeman found "[a]dverse

3 employment actions were taken against [Ratnayake] soon after" he raised financial

concerns, and such actions were, in part, motivated by Ratnayake's complaints. One such

adverse employment action was a January 2011 disciplinary letter prepared by Charlot

and Duvvur, without going through established human resource channels, which

contained "subjective and insulting" characterizations of Ratnayake, but was supported

by "little if no written or factual substantiation." Furthermore, witnesses reported to

Freeman that they overheard Charlot discussing how to get rid of Ratnayake because

Ratnayake raised questions. Also, witnesses reported they had been threatened if they

raised questions about financial mistakes.

Freeman also found that evidence showed Charlot created a hostile working

environment within the treasury department. In particular, Freeman reported

"[u]nprofessional, demeaning, and inappropriate communications" from Charlot to

Ratnayake, Charlot's "open manifestation" of personal dislike for Ratnayake, and a

culture of "not raising mistakes for fear of reprisal as well as favoritism." In the report,

Freeman concluded Charlot was a "rogue" manager who displayed "serious character and

empathy flaws."1

At the conclusion of the investigation, Freeman orally reported his findings in a

meeting with CareFusion's in-house attorneys, including employment law specialist Anne

Minteer and general counsel Joan Stafslien, as well as chief financial officer Jim

Hinrichs, who oversaw the treasury department. Freeman subsequently presented his

1 The record indicates that Charlot vehemently disagrees with Freeman's findings and claims that the conclusion of the investigation was predetermined. 4 findings and provided copies of his report and supporting exhibits at a second meeting,

which was attended by CareFusion's chief executive officer, in-house attorneys, and

Hinrichs.

Based on Freeman's findings, CareFusion made the decision to terminate Charlot's

employment. Hinrichs met with Charlot. During the meeting, he read from "talking

points" created to explain to Charlot the reasons for the termination. The talking points

stated that Ratnayake's complaints against Charlot had been substantiated. Further,

evidence indicated that Charlot "showed a pattern of behavior that demonstrated

extremely poor judgment, created an unhealthy environment within [the treasury

department] and violated [CareFusion's] policies and Code of Conduct." During this

meeting, Hinrichs also offered Charlot the opportunity to voluntarily resign for "personal

reasons" and receive a standard severance package in exchange for signing a release of

all claims against CareFusion. Charlot did not accept the severance package.

Reading from other "talking points," Duvvur apparently informed members of the

treasury department that Chariot was "leaving CareFusion" but provided no specific

details.2 Later CareFusion's vice-president of internal audit, Steve Morrison, who was

2 The parties both agree that Duvvur made the presentation to the treasury department. However, neither party has pointed to any portion of the record detailing exactly what was said at the presentation. Instead, both parties apparently agree that Duvvur relayed the information contained in the talking points. These talking points were contained in an attachment to an e-mail sent from Donna Vincent, CareFusion's vice-president of human resources to Hinrichs, Minteer, and three other individuals at CareFusion. Neither party explains who authored the talking points. In essence, the only admissible evidence of what was said during Duvvur's presentation to the treasury department regarding Charlot leaving CareFusion is the talking points themselves. 5 responsible for corporate compliance, asked Hinrichs why Chariot's employment was

terminated. Hinrichs informed him there was "no compliance matter . . . involved" and

Charlot "ha[d] been terminated and that's all you need to know." Hinrichs could not

remember exactly what else he said to Morrison, but testified during deposition that he

may have said something to the effect of, "[Chariot] acted in a way he shouldn't have

acted and he's been let go."

After his termination, Charlot filed a complaint against CareFusion, alleging

causes of action for breach of implied contract, breach of the implied covenant of good

faith and fair dealing, violation of Labor Code section 970, defamation, promissory

estoppel, and negligent infliction of emotional distress. In the complaint, Charlot averred

that he was an outstanding employee, but was fired for pretextual reasons after a bad faith

investigation in which reasons to support a "for cause" termination were manufactured.

CareFusion subsequently moved for summary judgment. While that motion was

pending, Charlot sought leave to file a first amended complaint. In the proposed first

amended complaint, Charlot wanted to remove the causes of action in his original

complaint for breach of implied contract, violation of Labor Code section 970, and

negligent infliction of emotional distress. He desired to add causes of action for wrongful

termination, fraud, negligent misrepresentation, and intentional infliction of emotional

distress.

CareFusion opposed Charlot's motion, contending it would be prejudiced if the

court permitted Charlot to file an amended complaint and none of the new claims stated

facts sufficient to constitute causes of action.

6 After hearing oral argument and considering the pleadings and evidence filed, the

superior court denied Charlot's motion. In doing so, the court explained that none of the

new proposed claims stated a valid cause of action.

Charlot then filed an opposition to CareFusion's motion for summary judgment, to

which CareFusion filed a reply. Each party also objected to evidence offered by the other

party.

After hearing oral argument as well as considering the pleadings and evidence

submitted, the court granted the motion for summary judgment. In doing so, the court

found that the evidence was undisputed that Charlot was an at-will employee. In fact, the

court was satisfied that Charlot took the job with CareFusion under the explicit

understanding that he was an at-will employee. As such, Charlot's claims for breach of

implied contract, breach of the covenant of good faith and fair dealing, violation of Labor

Code section 970, and promissory estoppel all failed. In regard to Charlot's defamation

claim, the court sustained CareFusion's objection to the admission of one allegedly

defamatory statement on hearsay grounds and found the other allegedly defamatory

statement was privileged under Civil Code section 47, subdivision (c). The court also

found no evidence that any of the statements were made with malice. Finally, the court

determined Charlot's cause of action for negligent infliction of emotional distress was

without merit because Charlot did not offer any authority that CareFusion breached a

duty owed to Charlot, and even if there was a breach, workers' compensation exclusivity

would bar Charlot's claim. Included in its order granting CareFusion's motion for

7 summary judgment, the court also specifically ruled on the various evidentiary

objections.

Charlot timely appealed the ensuing judgment.

DISCUSSION

I

MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

" 'Leave to amend a complaint is . . . entrusted to the sound discretion of the trial

court. ". . . The exercise of that discretion will not be disturbed on appeal absent a clear

showing of abuse. More importantly, the discretion to be exercised is that of the trial

court, not that of the reviewing court. Thus, even if the reviewing court might have ruled

otherwise in the first instance, the trial court's order will yet not be reversed unless, as a

matter of law, it is not supported by the record." ' " (Branick v. Downey Savings and

Loan Assn. (2006) 39 Cal.4th 235, 242; italics omitted.)

Charlot maintains the superior court committed reversible error in denying his

motion for leave to file a first amended complaint. He contends the motion was brought

during the "early stages of the case" and the court did not make any findings regarding

prejudice to CareFusion or undue delay by Charlot. Charlot further asserts that the

superior court's discretion to deny his motion is constrained by strong judicial policies

favoring resolution of the merits. He additionally insists that the court must exercise

"great liberality" in allowing amendments to a complaint. Although we agree with the

general legal principles Charlot argues (see, e.g., Board of Trustees of Leland Stanford Jr.

University v. Superior Court (2007) 149 Cal.App.4th 1154, 1163, 1173), here, the

8 superior court denied Charlot's motion for leave to file a first amended complaint because

none of the claims stated a valid cause of action. Such a basis is sufficient grounds on

which to deny leave to amend a complaint. (California Casualty Gen. Ins. Co. v.

Superior Court (1985) 173 Cal.App.3d 274, 280-281 (California Casualty).)

Although Charlot attempts to distinguish California Casualty, supra, 173

Cal.App.3d 274, we find no fault with the superior court's approach here. If the proposed

causes of action were not valid, it makes little sense to allow the amended complaint to

be filed only to be dismissed in the face of a demurrer or motion to strike. Further, we

note that at the hearing where the court denied Charlot's motion, Charlot's counsel

specifically asked if the denial was without prejudice to refile another amended complaint

to address the shortcomings the court found. The court responded that Charlot could "do

whatever you're allowed to under the law." Thus, although the court denied Charlot's

motion, the order left open the possibility of Charlot attempting to amend his complaint

at a later time. There is no indication in the record that he did so.

We review the trial court's denial of a motion to amend a complaint for abuse of

discretion. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486.) Here, the

court denied Charlot's motion for leave to file an amended complaint on the grounds that

none of the claims were valid. Accordingly, we will independently review whether each

of the proposed claims states a valid cause of action as a matter of law. If we determine

that any of the allegations state a valid cause of action, we will conclude that the court

abused its discretion here.

9 A. Wrongful Termination in Violation of Public Policy

Charlot contends he stated a valid claim for wrongful termination in violation of

public policy in his proposed first amended complaint. We disagree.

The tort of wrongful termination in violation of public policy is an exception to the

rule that an at-will employee may be terminated for no reason or for a reason that is

arbitrary or irrational. (Silo v. CHW Medical Foundation (2002) 27 Cal.4th 1097, 1104;

see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 176 (Tameny).) Typically,

the tort arises in circumstances where the employer retaliates against an employee who

(1) refused to violate a statute; (2) performed a statutory obligation; (3) exercised a

statutory right or privilege; or (4) reported an alleged violation of a statute of public

importance. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090-1091 (Gantt).

Because the concept of a "public policy" defies precise definition and courts are

loath to venture into this arena to avoid judicial policymaking, the policies encompassed

by the exception have been limited to those which are "carefully tethered to fundamental

policies that are delineated in constitutional or statutory provisions . . . ." (Gantt, supra,

1 Cal.4th at p. 1095.) "A requirement that a policy be 'delineated' [in a statute or

constitutional provision] entails more specificity than merely being 'derived from' or

'based' on its source. To 'delineate' means '. . . to describe in detail, esp. with sharpness or

vividness' [citation]; ' . . . to describe, portray, or set forth with accuracy or in detail'

[citation]." (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480.)

Because employers are deemed to have knowledge of the fundamental public policies

expressed in state and federal Constitutions and statutes, the constraint of delineation in a

10 given provision ensures that employers are on notice of the policies which, if contravened

in discharging an employee, will subject them to tort liability. (Silo v. CHW Medical

Foundation, supra, 27 Cal.4th at p. 1104.) And, although the employer's precise

wrongful act, such as firing an employee for refusing to commit a crime, need not be

specifically prohibited for the public policy exception to apply, the provision in question

must sufficiently describe the kind of conduct that is prohibited to enable an employer to

know the fundamental public policies that are expressed in that particular law. (Turner v.

Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, fn. 9; Sequoia, supra, at p. 1480.)

In the proposed first amended complaint, Charlot alleged he was terminated "in

violation of public policy against employers lying to their employees, defaming their

employees and misrepresenting [Charlot's] conduct and character." The complaint

further averred "[CareFusion was] not truthful with [Charlot] and created a false,

arbitrary and capricious and against public policy reason for this termination."

Even with a liberal reading of Charlot's proposed complaint, it is plain that his

allegations fail to reference any statutory or constitutional right that was violated. Citing

Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 (Green), Charlot argues that his

failure to identify a public policy in his complaint is not fatal to his claim because he is

permitted to identify the policy for the first time in opposing summary judgment. We do

not share Charlot's expansive reading of Green. In that case, the defendant objected to

the sufficiency of the complaint's allegation of a public policy for the first time in

connection with the Supreme Court's review of the Court of Appeal's reversal of the

superior court's grant of the summary judgment motion. Indeed, our high court observed:

11 "Defendant did not argue in the Court of Appeal that plaintiff should have specified the

statutory basis for his claim in his complaint, and the court did not address that issue."

(Id. at p. 84.) Thus, the court in Green did not address whether a plaintiff can state a

valid claim in a complaint for wrongful termination in violation of public policy without

specifically citing to a statute or regulation. Green therefore is not helpful to Charlot's

argument. (See In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [" 'It is axiomatic

that cases are not authority for propositions not considered.' "].)

Charlot also claims that the superior court "improperly stymied" his efforts to

pursue his wrongful termination action by denying his motion for leave to amend. Not

so. Charlot does not cite to anywhere in the record where he argued about additional

allegations he could allege or other facts that would establish a valid claim for wrongful

termination in violation of public policy. Indeed, Charlot's counsel asked the court

whether its ruling was without prejudice presumably so he could file an amended

complaint to address the issues raised by the court. The court did not foreclose that

opportunity. However, for reasons that Charlot has not explained, he failed to address

any of the problems with his proposed amended complaint and did not attempt to later

move to amend with new allegations.

Nevertheless, now on appeal, Charlot attempts to explain how he could have

alleged a valid claim for wrongful termination in violation of public policy. Although we

observe that Charlot may have forfeited such an argument by failing to raise it in superior

court (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn.

(2008) 163 Cal.App.4th 550, 564), we exercise our discretion to address Charlot's

12 argument on the merits because it presents a question of law (see, e.g., UFITEC, S.A. v.

Carter (1977) 20 Cal.3d 238, 249, fn. 2).

Charlot maintains that he could allege two theories of public policy violations to

make his wrongful termination against public policy claim valid. First, he contends that

Ratnayake had a well documented history of filing false complaints and CareFusion was

concerned that he was going to file another complaint giving rise to liability so it

"concocted a scheme to terminate Charlot in an effort to deflect that potential liability."

Charlot claims that CareFusion was concerned about liability under title 18 United States

Code section 1514A, title 18 United States Code section 1513(e), and title 15 United

States Code section 78u-6(h)(1)(A). In other words, Charlot insists CareFusion

terminated him to help it avoid liability under these statutes. These are not the statutes

Charlot is looking for.

Each one of these statutes protects a whistleblower. Title 18 United States Code

section 1514A provides certain whistleblower protections for employees of publicly

traded companies. Title 18 United States Code section 1513(e) prohibits retaliation

against a person for providing information to law enforcement regarding the commission

of a federal offense. Title 15 United States Code section 78u-6(h)(1)(A) also provides

protection to whistleblowers by prohibiting employers from retaliating against an

employee who provides certain information regarding alleged violations of securities

laws. Here, Charlot does not explain how CareFusion's termination of his employment

violates any of these statutes. He does not allege that he is a whistleblower. Charlot does

not clarify how his termination deflected CareFusion's potential liability under any of

13 these statutes. Accordingly, these new allegations do not give rise to a valid claim for

wrongful termination in violation of public policy.

Charlot's second theory that he was terminated in violation of public policy fares

no better than his first. He contends that there exists a "fundamental and well-established

public policy against a person filing bad faith complaints under the guise of

whistleblowing." In support of this policy, Charlot relies on 17 Code of Federal

Regulations section 240.21F-2(b)(1) and 17 Code of Federal Regulations section

240.21F-8(c)(7). The first regulation sets forth under what circumstances a

whistleblower is protected from retaliation, including "possess[ing] a reasonable belief

that the information" being provided "relates to a possible securities law violation."

(17 C.F.R. § 21F-2(b)(1)(i).) The second regulation denies eligibility for an award to a

would be whistleblower who "knowingly and willfully make[s] any false, fictitious, or

fraudulent statement or representation, or use any false writing or document knowing that

it contains any false, fictitious, or fraudulent statement . . . ." (17 C.F.R. § 21F-8(c)(7).)

Charlot thus reads these two portions of regulations as establishing a public policy to

discourage bad faith complaints. He then asserts that he was managing and documenting

Ratnayake's conduct, which included Ratnayake making false reports. Charlot concludes

he was therefore resisting Ratnayake's conduct that violated public policy.

We find at least two faults with Charlot's argument. First, far from establishing a

"fundamental and well-established public policy against a person filing bad faith

complaints under the guise of whistleblowing," the regulations on which Charlot rely

simply help define a specific instance in which a whistleblower will be protected from

14 retaliation and explain a circumstance under which a potential whistleblower will not be

eligible for an award. And these regulations, like the statutes on which Charlot also

relies, create part of the framework to protect whistleblowers. They do not establish a

public policy against making bad faith complaints. Instead, they simply remove any

whistleblower protections or benefits from one who makes a bad faith report. Second,

the regulations at issue do not prohibit any conduct by employers. They do not forbid an

employer from terminating an employee who is disciplining another employee who

allegedly made a bad faith complaint as a potential whistleblower.

Indeed, the lack of merit to Charlot's public policy claim is demonstrated when

compared to cases where a public policy violation was found. These cases involve such

matters as forcing the employee to participate in illegal activity or discharging the

employee for reporting illegal conduct that directly affects the public. (Green, supra,

19 Cal.4th at p. 71 [employee discharged for complaining to management that defendant

was shipping airline parts that failed inspections in violation of the Federal Aviation Act];

Gantt, supra, 1 Cal.4th at p. 1097 [employee discharged for refusing to give false

testimony]; Tameny, supra, 27 Cal.3d at p. 169 [employer forced an employee to

participate in an illegal price fixing scheme]; Gould v. Maryland Sound Industries, Inc.

(1995) 31 Cal.App.4th 1137, 1149 [employee fired for reporting violations of overtime

laws to management]; Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1122-1123

[employee discharged after reporting to management that company executives were

violating bribery, embezzlement, and tax laws]; Hentzel v. Singer Co. (1982) 138

Cal.App.3d 290, 298 [employee was discharged for protesting unsafe work conditions];

15 Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184, 188-

189 [employer insisted an employee perjure himself].) The allegations here are not

analogous to any of these cases. At best, Charlot claims he was fired for trying to

manage another employee who was making bad faith complaints. No such public policy

is violated in terminating Charlot even if we assume Charlot was engaging in the activity

he claims he was. The court therefore did not abuse its discretion in finding Charlot had

not stated a valid claim for wrongful termination in violation of public policy.

B. Fraud

Charlot also contends that he stated a valid cause of action for fraud. We are not

persuaded.

To state a fraud claim, Charlot must allege "(a) misrepresentation; (b) defendant's

knowledge of the statement's falsity; (c) intent to defraud (i.e., to induce action in reliance

on the misrepresentation); (d) justifiable reliance; and (e) resulting damage." (Hunter v.

Up-Right, Inc. (1993) 6 Ca1.4th 1174, 1184 (Hunter).) In his proposed first amended

complaint, Charlot alleged CareFusion made two misrepresentations: (1) Charlot would

enjoy a long-term career with CareFusion, and (2) Charlot was terminated for violating

CareFusion's Code of Conduct. We agree with the superior court that Charlot has failed

to state a valid cause of action for fraud.

In denying Charlot's motion for leave to amend, the superior court found that

Charlot could not reasonably rely on any promise of a long-term employment because he

concedes he was an at-will employee. On appeal, Charlot does not explain how the court

erred in making this finding or otherwise challenge this determination. Instead, he

16 merely assumes "without conceding" that the trial court was correct. As such, we deem

he has waived this issue on appeal by his failure to cite to any legal authority or otherwise

argue that the superior court was wrong. (See Nelson v. Avondale Homeowners Assn.

(2009) 172 Cal.App.4th 857, 862 ["Appellate briefs must provide argument and legal

authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but

fails to support it with reasoned argument and citations to authority, we treat the point as

waived.' "].)

Charlot's other allegation of fraud involved CareFusion misrepresenting why he

was fired. In the proposed first amended complaint, Charlot alleges that CareFusion

provided him with a false reason to explain why it terminated his employment. This is

not actionable as fraud. (See Hunter, supra, 6 Cal.4th at p. 1184.)

In Hunter, an employer made a misrepresentation to induce an employee to resign.

(Hunter, supra, 6 Cal.4th at p. 1179.) The Supreme Court held that the employee could

not recover tort damages based on this allegedly fraudulent act because the employer

could have directly terminated the plaintiff's employment and had merely introduced the

element of misrepresentation in the course of affecting that result. (Id. at pp. 1178,

1184.) Thus, the plaintiff did not rely to his detriment on the misrepresentations in

suffering constructive dismissal. (Id. at p. 1184.) Here, there is no difference in the

allegations of fraud in connection with Charlot's termination and the alleged fraud in

Hunter.

Nevertheless, on appeal, Charlot now argues that the superior court

"misconstrued" his second theory of fraud. He insists that his second theory of fraud

17 (although not alleged anywhere in the proposed first amended complaint) is that

CareFusion created a fraudulent scheme to manufacture cause to terminate him and

placate a troublesome employee. In support of his position, Charlot relies on Lazar v.

Superior Court (1996) 12 Cal.4th 631 (Lazar).) Such reliance is misplaced.

In Lazar, supra, 12 Cal.4th 631, the Supreme Court clarified its holding in Hunter,

supra, 6 Cal.App.4th 1174, and explained that Hunter "did not mean thereby to suggest

that simply effecting a termination in conjunction with fraudulent conduct will insulate an

employer from an otherwise properly pled fraud claim. We meant, rather, to preclude

fraud recovery only where 'the result of [the employer]'s misrepresentation is

indistinguishable from an ordinary constructive wrongful termination." (Lazar, supra, at

p. 643.)

The employee in Lazar, supra, 12 Cal.4th 631 brought an action against his former

employer for various causes of action, including fraud and deceit and promissory

estoppel, after being terminated from his management position. (Id. at p. 637.) The

plaintiff employee had been working in New York from 1972 to 1990 with a family-

owned restaurant equipment company. (Id. at p. 635.) The defendant employer asked

him to leave his job to come work for the defendant in Los Angeles and, when the

employee expressed concern about relocating, the defendant employer falsely told him

his job in Los Angeles would be secure and would involve significant pay increases. (Id.

at pp. 635-636.) The company's representations to the plaintiff regarding the terms on

which he would be retained, the defendant's financial health, and the potential

compensation to the plaintiff were false and, when making them, the defendant's agents

18 knew they were false. (Id. at p. 636.) Two years after relocating to Los Angeles, the

defendant terminated the plaintiff's employment and told him that his job was being

eliminated owing to management reorganization. (Id. at pp. 636-637.)

In concluding that the plaintiff employee could state claims against his employer,

the Supreme Court explained that there can be a valid fraud claim even in the context of

wrongful termination if the " 'misrepresentation [was] not aimed at effecting termination

of employment, but instead designed to induce the employee to alter detrimentally his or

her position in some other respect . . . ." (Lazar, supra, 12 Cal.4th at p. 640; italics

omitted.) The court stressed the two factors that must be present are detrimental reliance

and the employer's misrepresentation must be different from an ordinary constructive

wrongful termination claim. (Id. at p. 643.) The Supreme Court held that the employee

did have a claim for fraud because the defendant's misrepresentations "were made before

the employment relationship was formed, when [defendant] had no coercive power over

[the plaintiff] and [the plaintiff] was free to decline the offered position." (Id. at p. 642.)

Further, the misrepresentations resulted in damages to the plaintiff that included expenses

incurred in relocation and the loss of security and income associated with his former

employment and these damages were distinguishable from those incurred as a result of

the termination itself. (Id. at pp. 642-643.)

Lazar, supra, 12 Cal.4th 631 establishes that employees can maintain a cause of

action for fraud against their employer only if they allege all of the elements of such a

claim, including detrimental reliance, and if they allege damages distinct from the

termination itself. Here, Charlot's fraud claim differs substantially from the plaintiff's

19 claim in Lazar. Charlot has not alleged any misrepresentation beyond CareFusion's

stated reason for terminating his employment. Although he references a fraudulent

scheme that presumably consists of CareFusion's investigation of the complaints against

Charlot, he does not and cannot aver any misrepresentations made to him as part of the

investigation except for the reasons for the termination itself.

In addition, Charlot has not alleged any damages distinguishable from those

incurred as a result of the termination itself. (See Lazar, supra, 12 Cal.4th at p. 643.) In

the proposed first amended complaint, he states he has been damaged in an amount to be

established according to proof, but not less than $400,000. This is the same amount that

he claims for his cause of action for wrongful termination in violation of public policy.

In the operative complaint, he also alleges that CareFusion terminated him to avoid

paying him "in excess of $400,000 in earned bonuses and vesting of his equity stocks."

These allegations make clear that Charlot's fraud damages are the same as the damages he

seeks for his termination.

Charlot also contends that he detrimentally relied on the misrepresentation that he

was fired for violating the Code of Conduct. Again, putting aside that he did not allege

these facts in the proposed first amended complaint and only offered them in the first

instance in his opening brief here, we are puzzled by this claim. Charlot clearly does not

believe cause existed justifying his termination. Both the operative complaint and the

proposed first amended complaint include several allegations that he was a great

employee, who received accolades, raises, bonuses, and "above target" performance

evaluations. There is no indication that in the proposed first amended complaint that he

20 believed CareFusion when he was informed he was terminated for violating the Code of

Conduct. Yet, somehow this misrepresentation induced him "to detrimentally alter his

position in his evaluation of whether to accept a voluntary termination and severance

package." Charlot, however, does not explain how the misrepresentation altered his

evaluation. Was he more likely to take the severance package if CareFusion offered no

reason for the termination? Indeed, he does not allege that "but for" the

misrepresentation, he would have accepted the severance package. Simply put, Charlot's

allegations of detrimental reliance are not persuasive and contradicted by the other

allegations in the complaint.

Finally, Charlot claims that he has sufficiently alleged fraud based on the

allegation that CareFusion has forced him to participate in a fraudulent scheme because

he must inform prospective employers that he was terminated for cause. Charlot,

however, offers no explanation or authority to support the proposition that a plaintiff

repeating a defendant's alleged misrepresentation to a third party has alleged a cause of

action for fraud. Without any explanation or authority, we deem this argument waived.

(See Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th at p. 862.)

C. Negligent Misrepresentation

Charlot contends that he stated a valid claim for negligent misrepresentation. We

do not agree.

The elements of negligent misrepresentation are "(1) the misrepresentation of a

past or existing material fact, (2) without reasonable ground for believing it to be true, (3)

with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance

21 on the misrepresentation, and (5) resulting damage." (Apollo Capital Fund, LLC v. Roth

Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.) In contrast to fraud, negligent

misrepresentation does not require knowledge of falsity. A defendant who makes false

statements " ' "honestly believing that they are true, but without reasonable ground for

such belief, . . . may be liable for negligent misrepresentation. . . ." ' " (Ibid.)

Here, Charlot argues that for the same reasons that support his fraud claim, he has

alleged a valid claim for negligent misrepresentation. Because the only difference

between the elements of a fraud claim and a negligent misrepresentation claim is scienter,

we reject Charlot's contentions on the same grounds as his fraud claim. Charlot offers no

additional arguments for our consideration.

D. Intentional Infliction of Emotional Distress

Charlot also insists that he stated a valid claim for intentional infliction of

emotional distress (IIED). We disagree.

The elements of an IIED claim are: "(1) extreme and outrageous conduct by the

defendant with the intention of causing, or reckless disregard of the probability of

causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional

distress; and (3) actual and proximate causation of the emotional distress by the

defendant's outrageous conduct." (Davidson v. City of Westminster (1982) 32 Cal.3d

197, 209 (Davidson).) Conduct to be outrageous must be so extreme as to exceed all

bounds of that usually tolerated in a civilized community. (Ibid.) "Generally, conduct

will be found to be actionable where the 'recitation of the facts to an average member of

22 the community would arouse his resentment against the actor, and lead him to exclaim,

'Outrageous!' " (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.)

The fact that conduct might be termed outrageous is not itself sufficient. "The tort

calls for intentional, or at least reckless conduct—conduct intended to inflict injury or

engaged in with the realization that injury will result." (Davidson, supra, 32 Cal.3d at

p. 210.) The conduct must be of a nature that is especially calculated to cause mental

distress of a very serious kind. (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165,

fn. 5 (Ochoa).)

Moreover, to support the cause of action, "[i]t is not enough that the conduct be

intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the

presence of a plaintiff of whom the defendant is aware." (Christensen v. Superior Court

(1991) 54 Cal.3d 868, 903 (Christensen).) "The requirement that the defendant's conduct

be directed primarily at the plaintiff is a factor which distinguishes intentional infliction

of emotional distress from the negligent infliction of such injury." (Id. at p. 904.) In

circumstances in which a plaintiff seeks to recover for emotional distress suffered as the

result of conduct directed primarily at another, recovery—to the extent it has been

allowed at all—"has been limited to ' "the most extreme cases of violent attack, where

there is some especial likelihood of fright or shock." ' " (Id. at p. 905, quoting Ochoa,

supra, 39 Cal.3d at p. 165, fn. 5.)

In the proposed first amended complaint, Charlot alleged that CareFusion

"engaged in intentional and deliberate acts and omissions [it] knew would cause, and

caused, [Charlot] to suffer severe emotional distress." There is no description of these

23 acts or omissions in the proposed complaint. In his opening brief, Charlot attempts to

clarify these allegations by concluding that the "decision to terminate him was conducted,

implemented and communicated to him in an outrageous manner." Again, Charlot does

not provide any details that indicate CareFusion's conduct was so extreme as to exceed all

bounds of that usually tolerated in a civilized community. (See Davidson, supra, 32

Cal.3d at p. 209.) As best we can glean from the allegations in the proposed amended

complaint, CareFusion told Charlot he was being terminated for cause because he

violated the Code of Conduct. We do not deem this allegation to explain conduct that

would cause an average member of the community to exclaim, " 'Outrageous!' " (See

KOVR–TV, Inc. v. Superior Court, supra, 31 Cal.App.4th at p. 1028.) These allegations

certainly do not rise to the level of outrageous conduct in the cases cited by Charlot.

For example, in Rulon-Miller v. International Business Machines Corp. (1984)

162 Cal.App.3d 241, an employee was told by her superior, in disregard of IBM's

policies, that she would have to choose between her employment and her romantic

relationship with a competitor's employee. Although she was told that she had a couple

of days to make her decision, her superior called her in the next day and told her that he

had made up her mind for her and that she would end the relationship. When the

employee refused she was fired. The court stated that the superior's conduct was

sufficiently outrageous to constitute intentional infliction of emotional distress because

the "combination of statements and conduct would under any reasoned view tend to

humiliate and degrade [the employee]." (Id. at p. 255.) There are no analogous facts

here.

24 Likewise, Charlot's reliance on Wallis v. Superior Court (1984) 160 Cal.App.3d

1109 is of no help. In that case, the employer breached its obligation to pay an agreed

upon stipend for Wallis's agreement not to compete, and Wallis asserted, among other

claims, a claim for intentional infliction of emotional distress based on that breach. (Id.

at p. 1113.) Although at first glance, such conduct seems to be little more than a breach

of contract, the court noted additional allegations that made the employer's conduct

sufficiently outrageous. Wallis alleged that the employer intentionally abused its position

of financial control over the plaintiff by terminating payments without any good reason

and lying about the reasons for such termination. Also, Wallis alleged that the defendant

knew of his vulnerable position, intended to cause him harm, and that he suffered

emotional distress as a result of this. (Id. at p. 1120.) In short, Wallis alleged that he was

particularly financially vulnerable and the employer knew this fact and acted with the

intent to cause him harm and emotional distress. No such financial vulnerability is

alleged here.

In summary, in regard to CareFusion's direct interaction with Charlot, there are no

allegations that show CareFusion's conduct was extreme and outrageous. At most,

accepting Charlot's allegations as true, CareFusion lied about its reason for terminating

Charlot's employment and went so far as to engage in a sham investigation. However,

Charlot's allegations must be analyzed within the context of the undisputed fact that

Charlot was an at-will employee. CareFusion did not need to make up a reason to

terminate Charlot's employee. It simply could just fire him.

25 Further, there are no allegations that CareFusion shouted at Charlot in a rude or

violent matter or called him a racial epithet while terminating him. (See Alcorn v. Anbro

Engineering, Inc. (1970) 2 Cal.3d 493, 496-497.) Nor are there any allegations that

Charlot was peculiarly susceptible to emotional distress and CareFusion acted

intentionally to harm him in regard to that vulnerability. (See Wallis v. Superior Court,

supra, 160 Cal.App.3d at p.1120; Executive Security Management v. Dahl (C.D.Cal.

2011) 830 F.Supp.2d 870, 877.) We thus agree with the superior court that such

allegations do not give rise to an IIED claim.3

Similarly, we are not persuaded by Charlot's argument that CareFusion's

interactions with third parties give rise to a valid IIED claim. In the first proposed

amended complaint, Charlot alleges CareFusion's conduct was extreme and outrageous

because it told other employees and potential employers that Charlot engaged in bad

conduct and was terminated for cause. However, when an IIED claim is based on a

defendant's interaction with third parties, the conduct at issue must involve " ' "the most

extreme cases of violent attack, where there is some special likelihood of fright or

shock." ' " (Christensen, supra, 54 Cal.3d at p. 905.) Here, there are no allegations of

CareFusion's conduct with third parties even remotely indicating a violent attack occurred

3 Moreover, in the alternative, we agree with CareFusion that even if Charlot did state a claim for IIED, it would be preempted by the California Workers' Compensation Act (Lab. Code, § 3600). Charlot's IIED claim is based on the act of termination and the acts leading up to termination. These necessarily "arise out of and occur during and in the course of employment," and therefore "[e]ven if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers' compensation exclusivity provisions." (Shoemaker v. Myers (1990) 52 Cal.3d 1, 20, 25.) 26 or there was any conduct giving rise to fright or shock. As such, Charlot failed to state a

cause of action for IIED for this reason as well.

In summary, we determine that the superior court did not abuse its discretion in

denying Charlot's motion for leave to file a first amended complaint.

II

MOTION FOR SUMMARY JUDGMENT

The superior court granted summary judgment, which included six causes of

action. On appeal, Charlot only claims error as to two causes of action (defamation and

promissory estoppel) and punitive damages. As such, we only address those two claims

as well as punitive damages. In addition, Charlot challenges several evidentiary rulings

in connection with the court's granting of summary judgment. We review those rulings

as well.

A. Standard of Review

"A defendant is entitled to summary judgment if the record establishes as a matter

of law that none of the plaintiff's asserted causes of action can prevail." (Molko v. Holy

Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Further, the pleadings define the issues to be

considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184

Cal.App.3d 1050, 1055.)

The standard of review for an order granting a motion for summary judgment is de

novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).)

In performing our independent review, we apply the same three-step process as the

trial court. "Because summary judgment is defined by the material allegations in the

27 pleadings, we first look to the pleadings to identify the elements of the causes of action

for which relief is sought." (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159

(Baptist).)

"We then examine the moving party's motion, including the evidence offered in

support of the motion." (Baptist, supra, 143 Cal.App.4th at p. 159.) As to each claim as

framed by the complaint, the defendant must present facts to negate an essential element

or to establish a defense. (See AARTS Productions, Inc. v. Crocker National Bank (1986)

179 Cal.App.3d 1061, 1064.) Therefore, a defendant moving for summary judgment has

the initial burden of showing that a cause of action lacks merit because one or more

elements of the cause of action cannot be established or there is a complete defense to

that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at

p. 850.)

If the defendant fails to make this initial showing, it is unnecessary to examine the

plaintiff's opposing evidence and the motion must be denied. However, if the moving

papers make a prima facie showing that justifies a judgment in the defendant's favor, the

burden shifts to the plaintiff to make a prima facie showing of the existence of a triable

issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th

at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)

In determining whether the parties have met their respective burdens, "the court

must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom

[citations], and must view such evidence [citations] and such inferences [citations], in the

light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.)

28 "There is a triable issue of material fact if, and only if, the evidence would allow a

reasonable trier of fact to find the underlying fact in favor of the party opposing the

motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.)

Thus, a party "cannot avoid summary judgment by asserting facts based on mere

speculation and conjecture, but instead must produce admissible evidence raising a triable

issue of fact." (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977,

981.)

Although a review of a judgment following the granting of a summary judgment

requires an independent review, "[a] different analysis is required for our review of the

trial court's . . . rulings on evidentiary objections. Although it is often said that an

appellate court reviews a summary judgment motion 'de novo,' the weight of authority

holds that an appellate court reviews a court's final rulings on evidentiary objections by

applying an abuse of discretion standard." (Carnes v. Superior Court (2005) 126

Cal.App.4th 688, 694.) This standard is guided by various principles set out in the case

law: " '[T]he appropriate test of abuse of discretion is whether or not the trial court

exceeded the bounds of reason, all of the circumstances before it being considered.' . . .

Other cases suggest that a court abuses its discretion only when its ruling is arbitrary,

whimsical, or capricious." (Miyamoto v. Department of Motor Vehicles (2009) 176

Cal.App.4th 1210, 1218.) Here, where appropriate, we will address the various

objections and the court's ruling on same within the context of the challenge to the

summary judgment.

29 A. Defamation

We begin by reviewing the operative complaint to frame the issues to be decided

as to the defamation claim. Here, the allegations of the operative complaint state:

"[CareFusion has] defamed [Charlot] in his profession and to others within his profession

and/or business. [Charlot] is informed and believes, and based on that information and

belief alleges, [CareFusion] made verbal false statements to current employees of

[CareFusion] and to potential employers and/or business associates accusing [Charlot] of

not being qualified, threatening employees, being incompetent in his function as a

manager and in the Treasury Department. [¶] These statements were slanderous per se as

they tend directly to injure him in respect to his office, profession, trade or business."

Although couched as a cause of action for defamation in general, the allegations

clearly focus on slander. "Slander is a species of defamation." (Nguyen-Lam v. Cao

(2009) 171 Cal.App.4th 858, 867.) 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. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)

Further, the allegations of the operative complaint explicitly state that Charlot is

alleging a claim of slander per se. "Slander is a false and unprivileged publication, orally

uttered, and also communications by radio or any mechanical or other means which:

[¶] 1. Charges any person with crime, or with having been indicted, convicted, or

punished for crime; [¶] 2. Imputes in him the present existence of an infectious,

contagious, or loathsome disease; [¶] 3. Tends directly to injure him in respect to his

office, profession, trade or business, either by imputing to him general disqualification in

30 those respects which the office or other occupation peculiarly requires, or by imputing

something with reference to his office, profession, trade, or business that has a natural

tendency to lessen its profits; [¶] 4. Imputes to him impotence or a want of chastity; or

[¶] 5. Which, by natural consequence, causes actual damage." (Civ. Code, § 46.)

A slander claim that falls within the first four subdivisions of Civil Code section

46 is slander per se and requires no proof of actual damages. (Mann v. Quality Old Time

Service, Inc. (2004) 120 Cal.App.4th 90, 107.) Here, Charlot's allegations implicate

subdivision (3) (occupation). In connection with subdivision (3) of Civil Code section

46, "to be actionable per se, a defamatory statement must tend 'directly' to injure the

person defamed in respect to his office, profession, trade or business . . . ." (Correia v.

Santos (1961) 191 Cal.App.2d 844, 852.)

In support of its motion for summary judgment as to the defamation claim,

CareFusion offered a single undisputed material fact: "[Charlot] is unable to identify any

false, unprivileged statement of fact made about him by CareFusion."

CareFusion based this fact on Charlot's multiple responses to interrogatories

asking Charlot to set forth the defamatory statements in detail, including what was said,

who made the statements, and to whom the statements were made. In response to the

interrogatories, Charlot provided vague conclusions mirroring the allegations in the

complaint: "[Charlot] believes that [CareFusion] told employees that [Charlot] had done

something 'bad' and that [CareFusion] had just cause to terminate [Charlot]." "[Charlot]

believes, based on information and belief, that statements were made to other employees

of [CareFusion], by an authorized representative and/or employee of [CareFusion]

31 accusing [Charlot] of wrong doing, lacking qualifications, being incompetent and being a

physical threat to employees of [CareFusion]."

Charlot's factually devoid answers to interrogatories were sufficient to make the

initial showing that the defamation claim lacked merit. (See Union Bank v. Superior

Court (1995) 31 Cal.App.4th 573, 580-581.) Here, Charlot's responses show that he

cannot point to any specific slanderous statement to support his claim. Thus, the burden

shifts to Charlot to make a prima facie showing of the existence of a triable issue of

material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at

p. 849.)

In opposing the motion for summary judgment, Charlot attempted to dispute

CareFusion's lone statement of undisputed material fact by relying on six sources of

evidence: Charlot's supplemental responses to special interrogatories,4 Charlot's

deposition testimony, Freeman's Report, a document entitled "Talking Points," Charlot's

declaration, and Hinrichs's deposition testimony. On appeal, Charlot argues the evidence

shows that the allegedly defamatory statements consisted of: (1) Charlot repeating

defamatory statements to prospective employers (e.g., he was terminated for cause);

4 We note that Charlot's supplemental responses to special interrogatories speak only in general terms. They do not describe who made the defamatory statement and to whom it was made. Instead, it refers to CareFusion in general telling unnamed employees that Charlot "had done something 'bad' " and CareFusion had "just cause to terminate" Charlot. The superior court sustained objections to these responses because they were hearsay and lacked foundation. Although Charlot challenges the exclusion of his supplemental interrogatory responses, we agree with the superior court's ruling. The responses are not sufficiently detailed to provide the necessary information to conduct a hearsay analysis and there is no foundation provided in the response explaining how Charlot knows he was allegedly defamed. 32 (2) statements made to the treasury department based on the talking points document; and

(3) Hinrichs's statements to Morrison that Charlot had done something "bad," "wrong," or

"acted in a way he should not have acted."5

In regard to Charlot's first theory of defamation that he had to repeat defamatory

statements, we observe that the operative complaint did not include any allegations

regarding this theory of defamation. In bringing a motion for summary judgment,

CareFusion "had the burden . . . of negating only those ' " 'theories of liability as alleged

in the complaint' " ' and [was] not obliged to ' " ' " 'refute liability on some theoretical

possibility not included in the pleadings.' " ' " ' " (Conroy v. Regents of University of

California (2009) 45 Cal.4th 1244, 1254 (Conroy).) In addition, ["[t]he materiality of a

disputed fact is measured by the pleadings [citations], which 'set the boundaries of the

issues to be resolved at summary judgment.' " (Id at p. 1250.) Also, Charlot does not

point to where he made this argument to the superior court. Having not raised this issue

with the superior court in opposing the motion for summary judgment in the first

instance, we do not consider this new theory on appeal. (See DiCola v. White Brothers

Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676.)

5 In opposing the motion for summary judgment, Charlot also maintained that certain statements made by Saundra Redmond to Ratnayake regarding the results of Freeman's investigation were defamatory. However, in his opening brief, Charlot does not mention these statements. As such, CareFusion did not address these statements in its respondent's brief. Charlot discusses Redmond's statements as defamatory for the first time in his reply brief. We need not address arguments made for the first time in a reply brief. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.) 33 Next, Charlot maintains the message provided to the treasury department based on

the talking points was defamatory. Although the parties agree that the talking points

formed the basis of a message that was conveyed to members of the treasury department

after Charlot was terminated, we find it curious that there is little else in the record

explaining who was the author of the talking points, what was actually said at the treasury

department meeting, and who delivered the talking points. Charlot references an

attachment to an e-mail entitled "Talking Points (Amar and Christa meeting with

Treasury Group)." However, he does not point to any other admissible evidence in the

record to provide additional context or explain how the message was conveyed. It

appears the parties agree that Duvvur addressed the treasury department based on the

talking points, but Duvvur's declaration, submitted by Charlot in support of his

opposition to the motion for summary judgment, offered meager information regarding

Duvvur's actual presentation. Indeed, in his declaration, Duvvur declared, among other

things that it was standard practice for CareFusion's human resources department to

provide talking points to a manager when an employee was terminated, but he did not

recall the details of how he was instructed to communicate the separation of Charlot.

This said, it appears that both Charlot and CareFusion accede that the following was said:

"As most of you are aware, there has been an on-going investigation within the Treasury Department. We have completed that investigation and it is now closed. We want to reiterate that in our organization employees should feel comfortable to raise concerns internally and we will not tolerate any form of retaliation. I also want to talk to you about some organization changes. David [Charlot] is leaving CareFusion. Next week we will post the Assistant Treasurer position and begin recruiting. Until a new Director is hired, Ramon, Nish and Sean will report directly to me.

34 This change will begin immediately. I want to thank all of you for your continued dedication and support. I will keep you posted during our recruiting process."

As a threshold matter, we observe that the talking points are not slander per se.

Nothing in this statement tends to "directly" injure Charlot in respect to his profession.

(See Correia v. Santos, supra, 191 Cal.App.2d at p. 852.) Indeed, only one statement in

the talking points mentions Charlot: "David is leaving CareFusion." The rest of the

talking points concern CareFusion's policies. As CareFusion points out here, everything

stated in the talking points is true. And truth is a complete defense to a defamation claim.

(Smith v. Maldonado (1999) 72 Cal.App.4th 637, 646.)

In opposing CareFusion's motion for summary judgment, Charlot argues that the

defamatory statements in general are slander per se, but he does not sufficiently explain

how the talking points qualify as such. In his opening brief here, Charlot appears to

change tactics and insists, after considering the context of the talking points and other

extrinsic factors, they are defamatory.6

"Where the words or other matters which are the subject of a defamation action are

of ambiguous meaning, or innocent on their face and defamatory only in light of extrinsic

circumstances, the plaintiff must plead and prove that as used, the words had a particular

meaning, or 'innuendo,' which makes them defamatory." (Smith v. Maldonado, supra, 72

Cal.App.4th at p. 645.) Here, Charlot claims the talking points were defamatory because

6 We observe that Charlot again argues his defamation claim beyond the parameters he established with his complaint wherein he alleged the defamatory statements were slander per se. 35 they communicated, at least impliedly, that "as a result of the 'investigation,' Charlot was

found guilty of wrongdoing, including 'retaliation,' and it was severe enough to warrant

termination of his employment and impending replacement by a new employee." Charlot

further reasons that the defamatory nature of the talking points is "made even clearer"

when coupled with evidence that Charlot was escorted out of his office in view of

treasury employees. Thus, Charlot agues the talking points are defamatory because, if an

employee knew about the investigation of Charlot, he or she could infer from the talking

points that Charlot was found guilty of wrongdoing, including retaliation, and was

terminated because of his conduct. In other words, Charlot had to offer evidence of these

additional facts to satisfy his burden of proving the talking points could be considered

defamatory. He has not done so.

Charlot has not pointed to any admissible evidence in the record featuring a

declaration from or deposition of a CareFusion employee who knew about the

investigation, heard the talking points, saw Charlot escorted out of the office by security,

and believed that the talking points conveyed that Charlot was found guilty of

wrongdoing. Instead, Charlot points to paragraph 31 of his own declaration as the

additional evidence to support his position. Paragraph 31 states in pertinent part:

"I was told by some of my staff that a Treasury Department meeting was held and it was announced that I was no longer with CareFusion and, immediately after that news, there was a stern reminder that CareFusion does not tolerate retaliation or bullying. I was told by my staff that it was directly inferred and they believed that I was terminated for having done something wrong. They were all aware that Mr. Ratnayake complained about me and that the investigation was occurring because many of them were interviewed. I was told by some of my staff that the way the interviewer asked questions, it

36 was 'obvious' they were looking for something on me and were critical of me. . . ."

CareFusion objected to paragraph 31 of Charlot's declaration on the grounds that it

was not relevant (Evid. Code, § 350), hearsay (Evid. Code, § 1200), lacked foundation

(Code of Civ. Proc., §437c, subd. (d); Evid. Code, § 403), and was speculative (Evid.

Code, § 702.) The court sustained the objection to the first two sentences as well as the

fourth sentence of paragraph 31 on hearsay grounds and the third sentence because it

lacked foundation and was speculative. Here, Charlot contends the court abused its

discretion in sustaining the objections to paragraph 31 on hearsay grounds only. He

argues the statements in paragraph 31 were offered for nonhearsay purposes, namely to

establish publication or effect on the listener. But Charlot does not address or otherwise

take issue with the court sustaining the objection based on lack of foundation and

speculation as to the third sentence of paragraph 31. As such, Charlot has waived any

objection to this ruling and the third sentence of paragraph 31 is not admissible for

purposes of establishing a disputed issue of material fact.

In addition, we disagree with Charlot that the statements contained in paragraph

31 are not hearsay. Paragraph 31 of Charlot's declaration is based on what unnamed staff

members told Charlot about what an unidentified CareFusion representative told them.

Under Evidence Code section 1201, where a statement involves multiple levels of

hearsay, each level must satisfy a hearsay exception for the entire statement to be

admissible. Here, Charlot offers no argument that would allow the admission of the

unnamed staff member's statement to Charlot. Although what the CareFusion

37 representative said at the meeting might not be hearsay because it concerns the

defamatory statement and could be offered for effect on the listener or to establish

publication, what the unnamed staff members said to Charlot was an out-of-court

statement offered for the truth of the matter asserted, namely a CareFusion representative

made certain statements in a meeting. While it is conceivable that such a statement could

be admissible as a party admission (see Evid. Code, § 1220), we are unable to evaluate it

as such because Charlot has failed to indicate who told him about what Duvvur said at the

treasury department meeting. Accordingly, we conclude the superior court did not abuse

its discretion in sustaining the objections to paragraph 31 on hearsay grounds.

Without any admissible evidence that can support Charlot's claim that the talking

points were implied slander, Charlot's cause of action for defamation cannot be based on

the talking points.

Finally, Charlot argues that Hinrichs's statements to Morrison that Charlot had

done something "bad," "wrong," or "acted in a way he should not have acted" was

defamatory. On appeal, Charlot cites to three sources of evidence to support his theory

that this defamatory statement was made. The first is paragraph 32 of his declaration,

which states:

"Since my termination I have become aware from at least two people, Steve Morrison and Jim Hinrichs that CareFusion employees told other employees, including Mr. Morrison, Mr. Sean Smith, Jonathan Wygant and Jean Maschal that I was terminated because I did something bad or wrong, that CareFusion was looking for and found a 'smoking gun.' I believe Mr. Morrison was also told that I was terminated for cause because of a violation of the Code of Conduct."

38 Paragraph 32 is couched in general terms about unnamed employees telling certain

identified employees allegedly defamatory statements. Although Charlot declares that he

became aware of these statements from Morrison and Hinrichs, this declaration does not

set forth that Hinrichs told Morrison anything about Charlot's termination. Put

differently, it does not provide evidence of any defamatory statement made by Hinrichs

to Morrison.7

Next, Charlot claims his deposition testimony establishes the allegedly defamatory

statement made by Hinrichs to Morrison. Nevertheless, during his deposition, Charlot

was equivocal at best that Morrison told him about the allegedly defamatory statement.

Charlot testified as follows:

"[Q.] What statements did Jim Hinrichs make about you?

"A. Well, he informed Steve Morrison, for instance, that I had done something wrong, and that's why I was terminated. That the investigation found out that I had done something very wrong. Maybe strike the 'very.' I don't recall whether he said 'very.' But something that I did wrong.

"Q. And Steve Morrison was an employee of CareFusion at the time that Jim told him this?

"A. He was the vice president of audit.

"Q. Do you know when Mr. Hinrichs made that statement to Mr. Morrison?

7 CareFusion objected to paragraph 32 on several grounds, including hearsay, which the court sustained. Charlot claims the superior court abused its discretion in sustaining the objection to paragraph 32 because the statements in that paragraph were not hearsay but offered to establish the publication element of hearsay or their effect on the listener. However, we need not resolve this dispute because paragraph 32 does not offer evidence of the alleged defamatory statement Charlot claims was said by Hinrichs to Morrison. 39 "A. No.

"Q. When did you hear about it?

"A. I don't know. At least six months ago.

"Q. From Mr. Morrison?

"A. I don't recall.

"Q. So you don't recall who told you that?

"A. That's correct. I believe he may have mentioned it to me. And I think it might have been mentioned elsewhere as well."

Therefore, Charlot's deposition testimony sets forth the basic substance of the

allegedly defamatory statement and who said it to whom. However, it is clear that

Charlot was not present when Hinrichs made the statement to Morrison. Further, Charlot

admits that he cannot recall if it was Morrison who told him about the statement.

CareFusion objected to this deposition testimony on numerous grounds, including

hearsay. The superior court sustained the objection. Charlot now contends the court

abused its discretion in sustaining the objection because the statement was not hearsay.

However, like paragraph 31 of Charlot's declaration, there exists a double hearsay

problem. The first statement is what Hinrichs said to Morrison. It would not be hearsay

because it would not be offered for the truth of the matter asserted. However, someone

told Charlot about what Hinrichs said and it is that statement that would be hearsay. It

would be an out-of-court statement offered for the truth of the matter asserted. Charlot

argues it is not offered for the truth of the matter asserted, but merely to establish

publication. Not so. The subject statement about what Hinrichs said to Morrison was

40 made to Charlot. So the statement made to Charlot in essence is, "Hinrichs told Morrison

that you were terminated because you did something wrong." So the statement had to be

true (that Hinrichs told Morrison something about Charlot). If the statement was not true,

it would not show that anything defamatory was said. In other words, the "truth" of the

statement made to Charlot was not whether Charlot did something wrong, but that

Hinrichs actually told Morrison that Charlot did something wrong. So the second

statement made to Charlot was hearsay and not admissible.8

Lastly, Charlot relies on Hinrichs's own deposition testimony as proof that a

defamatory statement was made. Yet, during his deposition, Hinrichs specifically denied

that he ever told anyone that Charlot did something wrong or bad or that a smoking gun

had been discovered in the investigation. Instead, Hinrichs explained that Morrison,

"who was head of audit and also had compliance," was "pushing very hard" for Hinrichs

to tell him what had happened with Charlot. Hinrichs believed that Morrison wanted to

know about Charlot's termination for compliance issues. During his deposition, Hinrichs

testified that he told Morrison, "[A]ll you need to know is no compliance matter was

involved. David has been terminated and that's all you need to know. [¶] I don't know

exactly what I said to him. I may have said something like, you know, David -- it's not a

compliance issue, but David acted in [a] way he shouldn't have acted and he's been let

8 To the extent Charlot is arguing that the statement made to him would be a party admission and thus admissible under Evidence Code section 1220, we note that Charlot's deposition testimony does not provide a basis for making this determination. He cannot remember who told him what Hinrichs had said to Morrison. Without this crucial bit of information, we cannot determine if it was a party admission and admissible under Evidence Code section 1220. 41 go." Hinrichs further elaborated that Morrison "was a senior member of my staff, a vice

president of internal audit at CareFusion, and he was pushing very hard. And I remember

having a conversation with him about it."

Hinrichs's deposition testimony therefore does not establish that he told Morrison

that Charlot had done something bad or wrong. At most, Hinrichs testified that he might

have told Morrison "something like" Charlot was not terminated for a compliance issue,

but "acted in [a] way he shouldn't have acted." Yet, even if we assume Hinrichs made a

statement like this, Charlot has not shown a triable issue of fact as to his defamation

claim because such a statement would be protected by the common interest privilege.

The common interest privilege is codified in Civil Code section 47, subdivision

(c)(1), which provides that certain communications between parties who have shared

interests are subject to a qualified privilege and therefore are not actionable as

defamation. (See Kashian v. Harriman (2002) 98 Cal.App.4th 892, 914; Noel v. River

Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369.) Specifically, Civil Code section

47, subdivision (c)(1) sets forth in relevant part that a publication or broadcast is

privileged if made: "(c) In a communication, without malice, to a person interested

therein, (1) by one who is also interested, or (2) by one who stands in such a relation to

the person interested as to afford a reasonable ground for supposing the motive for the

communication to be innocent, or (3) who is requested by the person interested to give

the information."

"This common interest privilege is not well-defined, but it has been determined to

apply to statements by management and coworkers to other coworkers explaining why an

42 employer disciplined an employee." (McGrory v. Applied Signal Technology, Inc. (2013)

212 Cal.App.4th 1510, 1538 (McGrory); see Deaile v. General Telephone Co. of

California (1974) 40 Cal.App.3d 841, 846 (Deaile); King v. United Parcel Service, Inc.

(2007) 152 Cal.App.4th 426, 440 (King).) "Clearly, an employer is privileged in

pursuing its own economic interests and that of its employees to ascertain whether an

employee has breached his responsibilities of employment and if so, to communicate, in

good faith, that fact to others within its employ so that (1) appropriate action may be

taken against the employee; (2) the danger of such breaches occurring in the future may

be minimized; and (3) present employees may not develop misconceptions that affect

their employment with respect to certain conduct that was undertaken in the past."

(Deaile, supra, at p. 849.)

A shifting burden generally applies to establish the common interest privilege

defense. The defendant bears the initial burden of demonstrating that the allegedly

defamatory communication was made upon a privileged occasion, and the plaintiff then

bears the burden of proving the defendant made the statement with malice. (Lundquist v.

Ruesser (1994) 7 Cal.4th 1193, 1210-1214.)

Here, CareFusion moved for summary judgment based on the argument that

Charlot could offer no admissible evidence of a defamatory statement. In opposition,

Charlot attempted to dispute this issue by providing evidence of the allegedly defamatory

statements. In addition, because the allegedly defamatory statements were made to

CareFusion employees, Charlot addressed the common interest privilege. To this end,

Charlot argued there was not a common interest between Morrison and Hinrichs because

43 Morrison was not a member of the treasury department and did not need to know why

Charlot was terminated. Also, without any citation to evidence, Charlot maintained that

Hinrichs made the statement with "reckless disregard for the truth."

In reply, CareFusion provided evidence that any statements made from Hinrichs to

Morrison regarding Charlot's termination were protected by the common interest

privilege because Morrison had an interest in knowing the reason for Charlot's

termination in case his termination concerned a compliance issue. In addition,

CareFusion offered evidence that Hinrichs had a reasonable belief that what he told

Morrison was true. Thus, even though it was Charlot who first raised the issue of the

common interest privilege in his opposition, both parties were able to present evidence

and address the common interest privilege.

On appeal, CareFusion points out that Charlot, in his opening brief, does not

address the application of the common interest privilege to Hinrichs's statements to

Morrison. In his reply brief, however, Charlot responds to the privilege argument,

contending CareFusion has not shown that it was necessary for Morrison to know why

Charlot was terminated. Also, Charlot insists he has raised a triable issue of fact

regarding whether malice existed. We reject Charlot's contentions.

The evidence in the record shows that at the time Hinrichs spoke with Morrison

about Charlot's termination, Morrison was CareFusion's vice-president of internal audit

and a senior member of Hinrichs's staff. Morrison pushed "very hard" for information

about Charlot's termination. Hinrichs did not share many details, but told Morrison that

there were no compliance issues. In addition, Hinrichs testified that he might have said

44 Charlot "acted in a way he shouldn't have acted and he's been let go." Charlot's only

argument that this statement was not privileged is that Morrison was not a member of

CareFusion's treasury department; thus, he had no reason to know the information.

Charlot, however, offers no authority to support such a limited view of which employees

would qualify as "interested" under the common interest privilege. Here, we see no

reason why the chief financial officer of a company could not tell a senior member of his

staff that the assistant treasurer had been terminated for acting in a way he should not

have acted. This seems to go to the very core of the common interest privilege and its

application in the workplace to statements by managers and coworkers. (See McGrory,

supra, 212 Cal.App.4th at p. 1538; King, supra, 152 Cal.App.4th at p. 440; Deaile, supra,

40 Cal.App.3d at p. 846.) Charlot's position that an interested person must be a member

of the same department of the terminated employee lacks any support.

Having concluded that Morrison was sufficiently interested under the common

interest privilege, we next consider whether there is a triable issue of fact as to the

existence of malice. We note that on appeal Charlot takes issue with any burden shifting

on summary judgment. Citing Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th

686 at page 729, Charlot argues that for purposes of a motion for summary judgment, a

defendant bears the burden as to both components of the common interest privilege, and

thus, must produce evidence that the statement was made on a privileged occasion and

without malice. Although this portion of Mamou appears to be at odds with other

California authority, Charlot's point here is moot. As we discuss above, Charlot raised

the issue of the common interest privilege for the first time in his opposition to the

45 motion for summary judgment. He discussed the issue of malice then. In its reply,

CareFusion addressed the common interest privilege and malice as well. Simply put,

there is sufficient evidence in the record on the issue of malice to allow us to determine if

a triable issue of material fact as to the existence of malice exists.

Malice may not be inferred from the mere fact of the communication. (See Terry

v. Davis (2005) 131 Cal.App.4th 1534, 1558.) " '[M]alice,' within the meaning of Civil

Code section 47, subdivision (c), 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 . . . ." ' " (Hui v. Sturbaum (2014) 222

Cal.App.4th 1109, 1121, original italics; see Noel v. River Hills Wilsons, Inc, supra, 113

Cal.App.4th 1363, 1371 [mere negligence, in the sense of oversight or unintentional

error, is not enough to constitute malice].)

During his deposition, Charlot admitted he did not know if Hinrichs had any ill

will against him when Hinrichs made the alleged defamatory statements. In addition,

Charlot testified that he was not aware if Hinrichs made the statements about Charlot's

termination to Morrison while not believing the statement was true. During Hinrichs's

deposition, he testified that he questioned the factual findings of the Freeman Report, but

after considering various e-mails and letters, he came to the conclusion that Charlot had

done something wrong. Although Charlot attacks Hinrichs's deposition testimony as

evidence that Hinrichs "was simply following CareFusion's 'company line,' " he fails to

point to any evidence in the record that creates a triable issue of material fact that

46 Hinrichs lacked reasonable grounds to believe the truth of the statement, "Charlot acted

in a way he shouldn't have acted and he's been let go." Instead, Charlot attacks the

Freeman Report and investigation, arguing that it was not reasonable to rely on the report.

But, even if we accept Charlot's argument, there is no indication in the record that

Hinrichs relied solely on the Freeman Report in determining that Charlot did something

wrong. Hinrichs testified that he had reviewed certain e-mails that led him to believe

Charlot acted inappropriately, "I recall seeing e-mails written to [Ratnayake] from

[Charlot] that were demeaning and unprofessional, for lack of a better word."

In short, to the extent Hinrichs told Morrison that Charlot acted in a way he should

not have acted, or even conveyed that Charlot had done something wrong or bad, it is

protected by the common interest privilege. Charlot has not raised a triable issue of

material fact as to this issue.9

C. Promissory Estoppel

The elements of a promissory estoppel claim are "(1) a clear promise, (2) reliance,

(3) substantial detriment, and (4) damages 'measured by the extent of the obligation

assumed and not performed.' " (Toscano v. Greene Music (2004) 124 Cal.App.4th 685,

692.)

9 In regard to the allegedly defamatory statements made to the treasury department, even if we were to determine there existed a disputed issue of material fact regarding whether the statements based on the talking points were impliedly defamatory, they too would be covered by the common interest privilege. They were made by a senior manager to employees about another member of the department as well as departmental policies. (See McGrory, supra, 212 Cal.App.4th at p. 1538; King, supra, 152 Cal.App.4th at p. 440; Deaile, supra, 40 Cal.App.3d at p. 846.) 47 In the operative complaint, Charlot based his claim for promissory estoppel on

CareFusion's alleged promises that Charlot "would be employed long enough to enjoy the

benefits" of certain bonuses and equity grants. In addition, he claimed that he was

induced to leave his former employment, sell his home in New Jersey, and move his

family to San Diego.

In its motion for summary judgment, CareFusion offered six undisputed material

facts, all of which were aimed at establishing Charlot was an at-will employee of

CareFusion and he did not rely on any specific promise to relocate to San Diego. The

superior court found that Charlot did not raise a triable issue of fact that CareFusion made

him a clear promise or that he could rely on any promise that he was anything but an at-

will employee. Thus, the superior court concluded Charlot's promissory estoppel claim

could not survive summary judgment.

On appeal, Charlot does not challenge this conclusion. Instead, he argues a theory

that was not pled in the complaint. He claims that he relied on CareFusion's

representations and advice to his detriment. More specifically, he argues that he sought

advice and direction from CareFusion's management team regarding how to address

Ratnayake as a problematic employee and then was terminated after following that

advice.

As we observe above, a summary judgment is defined by the material allegations

in the pleadings. (Baptist, supra, 143 Cal.App.4th at p. 159.) In opposition to the motion

for summary judgment, Charlot raised a completely new theory, nowhere alleged in the

complaint, to defeat a motion for summary judgment. The superior court would have

48 been well within its discretion to ignore these new allegations. (See Conroy, supra, 45

Cal.4th at p. 1254.) Nevertheless, the court addressed Charlot's argument on the merits

and found that these new allegations did not alter Charlot's status as an at-will employee.

Thus, Charlot could not show detrimental reliance.

Because the court addressed the merits of Charlot's new theory and the parties did

so as well in the briefs before us, we also will consider this new theory. That said, the

record is clear that Charlot was an at-will employee. Charlot does not argue otherwise.

And he does not provide any evidence of a clear promise made by CareFusion or

evidence that he justifiably relied on a promise that he would not be terminated if he took

a certain action. Thus, he has not shown that a triable issue of material fact exists as to

any of the elements of promissory estoppel. (See Toscano v. Greene Music, supra, 124

Cal.App.4th at p. 692.)

D. Punitive Damages

Punitive damages are recoverable "[i]n an action for breach of an obligation not

arising from contract, where it is proven by clear and convincing evidence that the

defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294; see Basich

v. Allstate Insurance Co. (2001) 87 Cal.App.4th 1112, 1121.) Here, Charlot claims the

superior court erred in not reaching whether he was entitled to punitive damages because

it found all of Charlot's claims were without merit. Charlot insists his claim for

defamation as well as his potential claim for fraud support punitive damages. We

disagree.

49 As we have determined that no triable issue of material fact exists as to the

defamation claim and the court did not err in denying Charlot's motion for leave to amend

the complaint to state a claim for fraud (among other claims), there is no "breach of an

obligation" on which an award of punitive damages could rest. As such, we find no error

in the court's failure to reach the punitive damages issue on summary judgment.

III

EVIDENTIARY OBJECTIONS

Charlot's final challenge to the judgment is that the court abused its discretion in

sustaining multiple objections to evidence he submitted in support of his opposition to the

motion for summary judgment. We addressed certain objections regarding the alleged

defamatory statements above. The remaining objections fit into four categories:

(1) relevance; (2) assuming facts not in evidence; (3) lack of foundation; and (4) hearsay.

Charlot claims that the trial court abused its discretion in excluding the majority of

his declaration on relevancy grounds. Charlot depicts this evidence, consisting of various

paragraphs of his declaration, as describing his initiation of employment with

CareFusion, the success of the treasury department (including special recognition for

Charlot), Charlot's and Duvvur's interactions with Ratnayake, Ratnayake's response to a

warning letter he received, and Freeman's investigation. Charlot then reasons, without

explanation, that the excluded evidence was relevant to his claim that CareFusion acted

negligently or with reckless disregard for the truth when it communicated the reason for

Charlot's termination to Charlot and the treasury department and when Hinrichs told

50 Morrison why Charlot had been terminated. Alternatively stated, Charlot insists the

evidence is relevant to his defamation claim. We are not persuaded.

At the heart of Charlot's argument is that he was an excellent employee and

CareFusion created a reason to terminate his employment and did so under the guise of a

bogus investigation. Charlot, however, overlooks the fact that he was an at-will

employee and CareFusion did not need a reason to terminate his employment. He does

not argue that any of the evidence excluded on relevancy grounds transformed the terms

of his employment to something other than at will. In addition, he does not explain how

the evidence creates a triable issue of fact as to any of the allegedly defamatory

statements.

As best we can ascertain, Charlot maintains that the excluded evidence creates a

triable issue of fact as to the reasonable belief of Duvvur in delivering the talking points

and Hinrichs in making a statement to Morrison. Yet, none of this evidence has any

bearing regarding what Duvvur or Hinrichs believed.

Charlot appears to argue that the evidence excluded on relevancy grounds goes to

the reasonableness of Duvvur's belief in the statements he made to the treasury

department. The only evidence of what Duvvur said is the talking points themselves.

There is nothing in the evidence excluded on relevancy grounds that supports the

assertion that Duvvur did not believe what he conveyed to the treasury department.

Indeed, Duvvur's declaration, which Charlot submitted in support of his opposition to the

motion for summary judgment, falls short of declaring that Duvvur did not have a

reasonable belief in the talking points. In fact, the talking points are true and do not

51 contain any defamatory statement about Charlot. Further, the talking points do not

discuss the results of the Freeman investigation. And Charlot does not explain how the

evidence excluded as irrelevant could possibly show the talking points were defamatory.

In short, Charlot has not carried his burden in showing that the court abused its discretion

in excluding much of his declaration on relevancy grounds.

Next, Charlot contends the court abused its discretion in sustaining an objection to

paragraph seven of his declaration on the grounds that the statements assume facts not in

evidence. The subject evidence consists of Charlot's statement that he was told he would

enjoy "endless opportunities" with CareFusion and that "[w]hile no one ever promised the

career would be for a specified period of time, [he] was certainly told that CareFusion

intended to have a long-term relationship with [him]." He further declared that he "took

the position at CareFusion believing what [he] was told, that [he] would have a long-term

career at CareFusion."

In superior court, Charlot offered this evidence as an additional disputed material

fact in opposition to the motion for summary judgment. He did not specifically reference

a particular cause of action to which this evidence applied. Nor does he do so in his

opening brief here. In reviewing the record, it appears Charlot referenced this evidence

in regard to his discussion of his promissory estoppel claim that he relied on certain

representations from CareFusion to quit his job in New Jersey and move to San Diego to

work for CareFusion. However, on appeal, Charlot has abandoned this theory of

promissory estoppel by failing to address it in his opening brief. Instead, he focuses on a

new theory of promissory estoppel in that he relied on advice from CareFusion regarding

52 how to manage Ratnayake. Accordingly, the evidence about why he took the job with

CareFusion does not appear to be applicable to any issue challenged by Charlot here.

Thus, we determine Charlot's challenge to the exclusion of this evidence is moot.

In addition, Charlot asserts the court abused its discretion in sustaining objections

to certain evidence on the grounds that it lacked foundation. Specifically, Charlot takes

issue with the court excluding portions of paragraphs 30 and 33 through 35 of his

declaration.

In paragraph 30, the court sustained an objection for lack of foundation to the

following sentence: "The Code of Conduct is a lengthy document modeled to prohibit

unethical behavior such a stealing, bribes, embezzlement and harassment." However,

Charlot does not point to anywhere in the record where he established that he authored,

read, or was otherwise familiar with the contents of the code of conduct. Thus, we find

that the court did not abuse its discretion when it sustained the objection to paragraph 30.

In regard to paragraph 33, Charlot declared that corporate treasury work is

sensitive and important. He also states that only terminations as part of reductions in

force are "commonly acceptable to potential employers." Charlot is offering this

evidence in an attempt to explain why he cannot obtain another job since he was

terminated by CareFusion. Therefore, he is attempting to explain other companies'

respective approaches to hiring candidates and why they would not hire him. Moreover,

he is basing his statements on previous sentences in paragraph 33, which were also

excluded on other grounds and not challenged by Charlot. These previous sentences

provide some context for Charlot's assertions, namely they detail conversations Charlot

53 had with potential employers. However, because they were properly excluded, Charlot

has not provided the proper foundation to allow him to discuss the reasons he believes

potential employers are not hiring him and what they are looking for in candidates. The

court did not abuse its discretion in excluding this evidence.

The evidence excluded from paragraph 34 is Charlot's statement regarding what a

company is concerned about when interviewing him for a potential job and why it is

important to those companies that he would be forthcoming. Again, Charlot does not lay

the foundation how he could know what the companies where thinking or what they

wanted while interviewing him. We agree with the superior court that sufficient

foundation was not provided.

Also, we determine the court did not abuse its discretion in sustaining

CareFusion's objection to paragraph 35 of Charlot's declaration for lack of foundation. In

that paragraph, Charlot offers information about the value of equity grants that he lost as

well as opining that he had completed his fiscal 2012 goals and milestones to receive his

annual bonus. Charlot has failed to point to anywhere in the record where he provided

the necessary foundation to properly value the equity grants or indicate the various goals

and milestones that he was supposed to achieve and had achieved. Without this

foundation, his statements were merely conclusions. We again agree with the superior

court in excluding this evidence.

Finally, Charlot takes issue with a couple of objections to the declaration of

Colleen Hulce, who is a professional recruiter, working with Charlot. The court

sustained CareFusion's objection for lack of foundation as to Hulce's ultimate opinion

54 that Charlot cannot find employment since he was terminated from CareFusion because

he was terminated for cause. On the record before us, we find that the court did not abuse

its discretion in excluding this evidence. There is not a sufficient foundation of

admissible evidence that allows Hulce to reach this opinion. Charlot does not indicate

where the foundation was provided except to rely on Hulce's stated "expertise." This is

not enough. (See McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.Appp.4th 1098,

1106 ["Plaintiffs cannot manufacture a triable issue of fact through use of an expert

opinion with self-serving conclusions devoid of any basis, explanation, or reasoning."].)

Likewise, we are not impressed by Charlot's challenge to the court excluding a

portion of Hulce's declaration on hearsay grounds. Hulce declared: "Both employers

were impressed with David Charlot's background but demanded specific details regarding

the circumstances of his departure from CareFusion. Both decided to pass on Mr.

Charlot's candidacy. His termination was the only material, negative factor discussed by

the employers." Charlot argues the excluded evidence is not hearsay, but Hulce's

assessment of facts based on personal knowledge and interaction with employers

regarding Charlot's candidacy. We disagree. Hulce is not providing an assessment of

facts, but merely repeating what allegedly she was told by two potential employers. As

such, she is not providing an opinion based on hearsay, but instead, trying to introduce

out-of-court statements for the truth of the matter asserted. The court did not abuse its

discretion in excluding this evidence.

55 DISPOSITION

The judgment is affirmed. CareFusion is awarded its costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

McDONALD, J.