Sachs v. San Diego Center for Children CA4/1

• Court: California Court of Appeal
• Decided: June 9, 2014
• Docket: D063245
• Status: Unpublished

Opinion

Filed 6/9/14 Sachs v. San Diego Center for Children CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JEANINE SACHS, D063245

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2010-00093951- CU-DF-CTL) SAN DIEGO CENTER FOR CHILDREN et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Steven R.

Denton, Judge. Affirmed; motion and cross-motion for sanctions denied.

Kramer Law Office and Melody A. Kramer for Plaintiff and Appellant.

Seltzer Caplan McMahon Vitek and Tracy Anne Warren, Kathryn B. Gray for

Plaintiff and appellant Jeanine Sachs appeals from a summary judgment entered in

favor of her former employer, San Diego Center for Children (Center), and Center employees Rachel Powers, Tara Davis, Danielle Domingue and Amanda Bates on Sachs's

first amended complaint for defamation, inducing breach of contract, intentional

interference with prospective economic advantage, and breach of the covenant of good

faith and fair dealing. In part, the trial court ruled that e-mails Sachs had alleged were

defamatory fell within the common-interest privilege of Civil Code1 section 47,

subdivision (c), and Sachs's evidence, including evidence that she had previously

disciplined some of the individual defendants, did not demonstrate malice on their part so

as to defeat that privilege. Sachs contends she presented "significant" evidence of malice

and otherwise raised triable issues of material fact preventing summary judgment on her

remaining causes of action. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

We set out the undisputed facts from the parties' separate statements and evidence

supporting their moving and opposing papers, and view other facts in the light most

favorable to Sachs as the party opposing summary judgment. (Code Civ. Proc., § 437c,

subd. (c); Neilsen v. Beck (2007) 157 Cal.App.4th 1041, 1044, fn. 1; see Guz v. Bechtel

National, Inc. (2000) 24 Cal.4th 317, 335, fn. 7 (Guz).)

Center provides mental health, educational and social services to troubled and

adolescent children in San Diego County. In August 2006, Sachs was hired as a program

manager at Center's Discovery Hills Day Treatment Program (Discovery Hills), which

provides a daily school environment in a support-based community setting for children

1 Statutory references are to the Civil Code unless otherwise specified.

2 ages 6 through 12. At that time, Sachs reviewed and signed Center's employee handbook

as well as an employee statement indicating her employment was at will. Sachs's

program manager duties included overseeing the program; counseling individuals, groups

and families; attending meetings; supervising staff; overseeing the completion of charts;

and fiscal oversight, including creating and overseeing a budget for Discovery Hills.

Program managers were required to be on campus a minimum of eighty percent of the

time.

From March 2008 to August 2010, Powers was the program manager for another

Center program serving adolescents, Discovery Valley Adolescent Day Treatment

Program (Discovery Valley), which occupies the same buildings and campus as

Discovery Hills. Sachs supervised Powers, who did not have the required license. Misty

Wilkerson-Howard was a quality assurance manager in Center's clinical support division.

Domingue was the administrative assistant for the Discovery Hills and Discovery Valley

programs from June 2007 to September 2010, and she was present almost daily with

Sachs, her supervisor. Sachs also supervised Bates, who as of December 2006 was

Discovery Hills' lead child development counselor, as well as Davis, who was a lead

child development counselor for Discovery Valley from 2009 to January 2011.

The Discovery Hills and Discovery Valley programs receive funding from the

state of California after the submission of a request for proposal (RFP) through which

Center provides detailed information to San Diego County. All of the program managers

worked with quality assurance personnel, staff and grant writers to compile information

3 for RFPs, and Sachs, Powers and Wilkerson-Howard were responsible for RFP content in

2010.

In May 2008, Sachs received a report that Powers had engaged in inappropriate

and unprofessional behavior of a sexual nature in the workplace. Sachs counseled

Powers about the matter in May 2008.

In July 2008, five staff members, including two friends of Powers and Domingue,

wrote a letter expressing their concern about Sachs's performance as a manager and the

direction of the Discovery Hills program under her management. Powers, Bates and

Davis were not among the employees making the July 2008 complaint. Sachs knew

about the complaints but viewed the situation differently. Wilkerson-Howard and

Center's executive director, Marty Giffin, investigated the complaints and concluded

some of the complaining individuals were not credible; Wilkerson-Howard additionally

felt all of the issues with Sachs's management could be corrected. Nevertheless, Center

wrote a "team building action plan" for Sachs, which Sachs signed.2

In August 2008, Sachs counseled Powers again about her inappropriate behavior,

and Powers received and signed a notice of written disciplinary action concerning the

2 Sachs purported to assert below and repeats on appeal that in July 2008 she had recommended to Giffin, who supervised both Sachs and Powers, that Powers be replaced with a licensed program manager due to Powers's lack of judgment and self-control, but her request was denied. However, the evidence cited in Sachs's separate statement, paragraph 8 of Sachs's declaration, does not support that proposition. At that portion of her declaration, Sachs states, "In November 2009, [Bates] was written up by me for insubordination due to failure to follow [my] directive. [Center's] Human Resources Manager, Anette Nelson, backed me up. However, [Bates] continued to complain behind my back." 4 incidents. Giffin, Sachs, and Center's human resources representative, Anette Nelson,

also signed the report. By June 2009, Powers had completed a performance improvement

plan related to those incidents.

In November 2009, Dave McCaslin, Center's chief executive officer, became

Sachs's direct supervisor. About that time, Bates had expressed concern to Giffin,

Nelson, Wilkerson-Howard and McCaslin about Sachs's hostile treatment of staff, and

neglect of staff and clients creating a safety risk. Giffin related the complaint to

McCaslin. Thereafter, Sachs started to write Bates up for insubordination, but Sachs did

not follow Center's procedures for that process. Bates contacted Nelson herself about the

incident. Bates had been documenting her concerns about Sachs's management and

actions since late October 2009.

In mid-November 2009, Bates spoke with McCaslin and Nelson about Sachs's

mismanagement, unprofessional conduct and absenteeism, and expressed concern about

the safety of the Discovery Hills program. McCaslin believed Bates and eventually

spoke with Powers about Bates's complaints. He instructed Nelson to draft a

performance improvement plan for Sachs. McCaslin decided to wait until Center had

submitted its RFP at the end of January 2010 to deliver the plan to Sachs.

In late December 2009, Center began its RFP process for which Sachs and Powers

were required to collect and submit program information to Wilkerson-Howard. Though

Sachs was responsible for the Discovery Hills portion of the RFP, she sought help from

two employees and also from her domestic partner, who was not a Center employee.

Wilkerson-Howard, who worked directly with Sachs, found Sachs's work on the RFP to

5 be unsatisfactory and Sachs's information unusable. In early January 2010, Wilkerson-

Howard told McCaslin about her concerns over Sachs's lack of knowledge and poor work

quality.

During January 2010, McCaslin received e-mails from Domingue, Wilkerson-

Howard, Powers and Davis, who each expressed concerns about Sachs's treatment of

children and Center staff, as well as her work performance. Specifically, on January 15,

2010, Domingue reported to McCaslin, Nelson and Wilkerson-Howard that Sachs had

used a therapist and Bates to help her with her RFP instead of allowing them to do their

jobs, and had used profanity in front of clients. Domingue additionally informed

McCaslin about an incident occurring on January 14, 2010, in which Sachs had instructed

Bates and another staff member to turn off their radios while they worked on the RFP,

resulting in a safety issue. Dominque stated she did not want the incident to negatively

impact the program and that she felt it was important to pass the information on to

management.

On January 20, 2010, Wilkerson-Howard reported to Nelson and McCaslin that

she had received a call from a Center staff member complaining about the way Sachs

treated him or her, but who did not want to be involved in any formal complaint. In part,

Wilkerson-Howard stated: "I'm really worried that due to the stress [Sachs] appears to be

causing staff, it is certainly going to effect [sic] the quality of care we are providing to

those students, and apparently already has (per the most recent complaint). [¶] . . . I'm

afraid we could be dealing with a serious situation if we don't resolve some of the issues

6 up there soon. Just wanted to add my two cents and my concern for the program, both

staff and students."

On January 29, 2010, Davis reported in an e-mail to McCaslin and Nelson that

Sachs had engaged in an "unsupportive interaction" with a child new to Discovery

Valley. Davis stated that she felt Sachs's comments were unfounded, unsolicited and

intentionally put the client down. She pointed out the client was still nervous about his

new surroundings, and he had been trying to be appropriate and follow the program.

That same day, Powers e-mailed McCaslin, Nelson, and Pam Hanson, Center's director of

children's residential program, stating she could not ignore what she felt were Sachs's

violations of policies, procedures, ethical guidelines and good practice. Powers described

instances in late 2009 or early 2010 of Sachs's absences, neglect or poor handling of job

responsibilities and inappropriate treatment of clients and staff.3 Powers's report had

expressed concern over nearly the same issues regarding Sachs from 2008.

3 As for Sachs's treatment of clients, Powers reported that on January 8, 2010, and January 29, 2010, she witnessed Sachs curse in front of clients; on January 22, 2010, she witnessed Sachs "allowing a parent to verbally abuse a client and not step in and stop the assault"; in November 2009 she witnessed Sachs "failing to intervene when a client's uncle literally pulled the client up and out of his seat by his long hair in front of other clients and staff to which I and John Laidlaw had to intervene and file the [child protective services] report"; and on December 11, 2009, January 20, 2010, and January 28, 2010, Sachs "yell[ed] at clients" and told them to "Stop it," when they were acting out. Powers also reported that Sachs "instigates clients who are already escalated and does not follow proper de-escalation procedures"; specifically that "a client was cursing at [Sachs] and trying to attack her and she continued to engage in a power struggle with the client and yelled at him." Powers stated that Sachs did not attend certain treatment or individual education plan meetings, and due to her lack of participation, clients, parents and professionals did not know who she was or her role.

7 McCaslin decided to terminate Sachs, and did so on February 1, 2010. In

terminating Sachs, he did not mention any of the January 2010 e-mails.

Sachs sued Center, Powers, Davis, Domingue and Bates, and eventually filed a

first amended complaint alleging defamation against Powers, Davis, Domingue and

Center (first through fourth causes of action), as well as inducing breach of contract (fifth

cause of action) and intentional interference with prospective economic advantage (sixth

cause of action) as to the individual defendants. Sachs also alleged Center breached the

implied covenant of good faith and fair dealing (seventh cause of action). In part, Sachs

alleged that the individual defendants made specified false statements "in the course and

scope of [their] employment at [Center]" in communications to Sachs's supervisors and

others. Sachs also alleged the individual defendants published the statements with malice

in that they knew the statements were false and made with intent that Sachs lose her

employment with Center, and Center "ratified" the e-mails by using them as grounds for

terminating her employment.

Center and the individual defendants moved for summary judgment or

alternatively summary adjudication of issues. They maintained McCaslin decided to

terminate Sachs before the individual defendants sent their e-mails, that the information

in the e-mails was truthful, and that the e-mails were privileged under section 47,

subdivision (c) as sent to those having a common interest. Defendants filed sworn

declarations from each individual defendant, as well as from McCaslin, Wilkerson-

Howard, and senior program manager Lori Barnes. The individual defendants stated that

they made their comments to Center management concerning Sachs's performance in

8 good faith for the purpose of advancing the children's interests, without any malice,

hatred or ill will toward Sachs.

McCaslin averred that by November 2009 Sachs reported directly to him, and in

2008 he knew that the majority of Sachs's staff had written a letter concerning Sachs's

neglect of her duties, employees and jobs. He also knew that many of her staff had

resigned due to the discordant work environment she created as well as her ineffective

management style, among other concerns. He stated he had come to the conclusion that

Sachs was not right for the program manager position based on information he had

received in late December 2009 and early January 2010.

McCaslin averred that on January 14, 2010, he made the decision to terminate

Sachs once Center had submitted its request for proposal to the county on January 29,

2010. According to McCaslin, he told Wilkerson-Howard of his decision that day.

McCaslin stated that afterwards he received the e-mail from Dominque concerning the

January 14, 2010 incident and the other e-mails from Davis and Powers expressing their

concern about Sachs's neglect of children, Center employees and her program manager

duties. McCaslin averred that by that time he had already told human resources to start

preparing Sachs's termination paperwork.

Sachs opposed the defendants' motion. She identified the triable issues of material

fact as (1) "why [Sachs] was terminated from her employment at [Center]," and (2) "the

reasons why Defendants choose [sic] to make false and defamatory statements about . . .

Sachs to her superiors." Sachs argued that McCaslin's reasons for her termination had

changed, and that he and others tried to "hide their intent to remove [Sachs] as Program

9 Manager of the Discovery Hills program to enhance their funding request to the County

of San Diego." Pointing out Domingue, Davis and Powers were "mandated reporters of

suspected child neglect," Sachs argued their e-mails accused Sachs of a crime—

neglecting children—without using care to determine the truth of that accusation, and she

claimed Domingue, Davis and Powers later recanted their accusations. Sachs argued

Center defamed her by designating her termination as being based on poor performance

and child neglect, which it assertedly later disavowed. As for the section 47, subdivision

(c) qualified privilege, Sachs argued Center's sole evidence in support of its motion was

of the individuals' own state of mind denying malice, which the court could reject as

evidence of a material fact under Code of Civil Procedure section 437c, subdivision (e).

With respect to her contract-related claims against Center and the individuals,

Sachs argued Center had admitted the existence of a contract with Sachs; the individuals

knew about that contract because they had similar arrangements; the individuals'

declarations as to their state of mind were insufficient to disprove their intent to disrupt

the performance of Sachs's contract; the individuals did not act to resolve problems with

Sachs but with intent to have Sachs terminated; McCaslin testified he received the e-

mails and terminated Sachs as a result of her neglect of children; and Center breached the

covenant of good faith and fair dealing by accepting the e-mails at face value without

investigating the truth or falsity of their contents.

In reply, defendants pointed out that several of Sachs's opposing summary

judgment papers were served and filed late, as well as procedurally deficient, requiring

that the court disregard them or grant summary judgment. Defendants also responded to

10 Sachs's evidence and her separate statement of material undisputed facts with numerous

evidentiary objections. In part, they asserted the court could not take judicial notice of

the truth of the contents of declarations submitted in support of defendants' prior Code of

Civil Procedure section 425.16 motion to strike.

Overruling all of defendants' evidentiary objections, the trial court tentatively

granted summary judgment. In a lengthy order, it ruled that as to the first through fourth

defamation causes of action, defendants' conduct was privileged under section 47,

subdivision (c), and Sachs's evidence was either insufficient to prove the sort of malice

necessary to overcome that privilege, or constituted inadmissible double hearsay. As to

the fifth and seventh causes of action for interference with contract and breach of the

implied covenant of good faith and fair dealing, it ruled Center provided undisputed

evidence that Sachs's employment was at will, and Sachs provided no evidence of an

employment contract. With regard to the sixth cause of action for intentional interference

with economic relations, it ruled the absence of evidence of malice was fatal to the claims

against Powers, Davis and Domingue, and that Bates's 2009 write-up likewise did not

constitute evidence of malice.

On October 29, 2012, the court entered judgment in defendants' favor. At some

point, Sachs moved for reconsideration of the court's summary judgment ruling. She

argued reconsideration was justified by new documents including a "serious incident

report" assertedly produced by defendants after she had filed her summary judgment

opposition, newly acquired testimony from witnesses Frances Edwards and Jennifer

Maley, and newly acquired evidence consisting of a "team building plan" and

11 Domingue's e-mail comments about that plan. The court heard and denied the motion on

November 9, 2012, on grounds the court was divested of jurisdiction to reconsider its

ruling on defendants' motion following entry of the judgment.

Sachs appeals from the October 29, 2012 judgment.4

DISCUSSION

I. Defendants' Request to Strike Sachs's Opening Brief

Defendants ask us to strike or treat as waived portions of Sachs's opening brief for

noncompliance with California Rules of Court and her failure to support arguments and

factual assertions with citations to authority or the record. They also maintain Sachs has

not complied with the requirement of a summary judgment separate statement. We deny

defendants' request to strike significant portions of Sachs's opening brief, notwithstanding

the fact the brief contains factual assertions without citation to the record in violation of

California Rules of Court, rule 8.204(a)(1)(C). When an appellate brief contains

references to matters not supported by the record on appeal, we can simply ignore these

references rather than strike them. (Cal. Rules of Court, rule 8.204(e)(2)(C); Connecticut

4 Sachs does not separately identify in her notice of appeal the court's postjudgment November 9, 2012 order denying reconsideration. This precludes her from raising arguments concerning her reconsideration motion, including by pointing to the assertedly new evidence submitted with that motion to challenge the court's entry of summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [appellate court may consider only those facts before the trial court].) " ' "[W]here several judgments and/or orders occurring close in time are separately appealable . . . , each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal." ' [Citations.] The policy of liberally construing a notice of appeal in favor of its sufficiency [Citation] does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all." (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.) 12 Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 813, fn. 2.) We will disregard

assertions unsupported by admissible evidence or legal authority and address the

propriety of the summary judgment in defendants' favor.

II. Summary Judgment was Properly Granted

A. Standard of Review

Summary judgment is appropriate "if all the papers submitted show that there is no

triable issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant who moves for

summary judgment or summary adjudication bears the initial burden to show that the

cause of action has no merit—that is, "that one or more elements of the cause of action,

even if not separately pleaded, cannot be established, or that there is a complete defense

to that cause of action." (Code Civ. Proc., § 437c, subds. (a) & (p)(2).)

If the defendant carries that burden, "the opposing party is then subjected to a

burden of production of his own to make a prima facie showing of the existence of a

triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,

850 (Aguilar).) A triable issue of material fact exists " '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.' [Citation.]

Thus, a party 'cannot avoid summary [adjudication] by asserting facts based on mere

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

issue of fact.' " (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199

Cal.App.4th 1132, 1144-1145.)

13 On review of a summary judgment, we take the facts from the record before the

trial court when it ruled on the motion (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th

1028, 1037), disregarding evidence to which objections were made and sustained. (Code

Civ. Proc., § 437c, subd. (c); Guz, supra, 24 Cal.4th at p. 334.) "We review the record

and the determination of the trial court de novo." (Kahn v. East Side Union High School

Dist. (2003) 31 Cal.4th 990, 1003.) "In performing our de novo review, we must view

the evidence in a light favorable to plaintiff as the losing party [citation], liberally

construing [the plaintiff's] evidentiary submission while strictly scrutinizing defendants'

own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor."

(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

B. Sachs's First through Fourth Causes of Action for Defamation are Barred by the

Qualified Privilege for Communications Between Interested Persons

"The tort of defamation 'involves (a) a publication that is (b) false, (c) defamatory,

and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special

damage.' " (Taus v. Loftus (2007) 40 Cal.4th 683, 720; see Hui v. Sturbaum (2014) 222

Cal.App.4th 1109, 1118.) In this case, we need not address the first, second, third and

fifth elements of the tort, as defendants have met their threshold summary judgment

burden to establish the communications alleged to be defamatory fall within the qualified

common-interest privilege of section 47, subdivision (c), and Sachs has not met her

responsive burden to present facts from which a reasonable trier of fact may conclude or

infer defendants acted with malice, so as to preclude the privilege's application.

14 1. The Common-Interest Privilege of Section 47, Subdivision (c)

Section 47, subdivision (c) provides that a privileged publication or broadcast is

one made "[i]n 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 provision "extends a conditional privilege against defamation to

statements made without malice on subjects of mutual interest[ ]. [Citations.] This

privilege is 'recognized where the communicator and the recipient have a common

interest and the communication is of a kind reasonably calculated to protect or further

that interest.' [Citation.] The 'interest' must be something other than mere general or idle

curiosity, such as where the parties to the communication share a contractual, business or

similar relationship or the defendant is protecting his own pecuniary interest. [Citation.]

Rather, it is restricted to 'proprietary or narrow private interests.' " (Hawran v. Hixson

(2012) 209 Cal.App.4th 256, 287.)

Thus, the common interest privilege "has been determined to apply to statements

by management and coworkers to other coworkers explaining why an employer

disciplined an employee." (McGrory v. Applied Signal Technology, Inc. (2013) 212

Cal.App.4th 1510, 1538, citing Deaile v. General Telephone Co. of California (1974) 40

Cal.App.3d 841, 846 & King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426,

440; see Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369 ["Courts

have consistently interpreted section 47, subdivision (c) to apply in the employment

15 context."]; Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 369 [manager's complaint to

department of human resources about workplace harassment is conditionally privileged];

Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d

985, 995.) " '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.' " (McGrory v. Applied Signal

Technology, Inc., at p. 1538.)

The privilege will not arise, however, where the plaintiff establishes the

communication at issue was made with actual malice, i.e., " ' "a state of mind arising

from hatred or ill will, evidencing a willingness to vex, annoy or injure another

person." ' " (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 914; see also Taus v.

Loftus, supra, 40 Cal.4th at p. 721; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d

711, 723, fn. 7 ["[I]f malice is shown, the [section 47, subdivision (c)] privilege is not

merely overcome; it never arises in the first instance."].) The sort of malice required to

defeat a qualified privilege may also be established " ' "by a showing that the defendant

lacked reasonable ground for belief in the truth of the publication and therefore acted in

reckless disregard of the plaintiff's rights." ' " (Taus v. Loftus, at p. 721.)

16 Whether the privilege arises is ordinarily a question of law. (Mann v. Quality Old

Time Service, Inc. (2004) 120 Cal.App.4th 90, 108; Hui v. Sturbaum, supra, 222

Cal.App.4th at p. 1119.) Defendants have the initial burden of showing the allegedly

defamatory statements were made on a privileged occasion and thereafter the burden

shifts to Sachs to establish defendants made the statements with malice. (Taus v. Loftus,

supra, 40 Cal.4th at p. 721.)

2. Defendants Met Their Burden to Show Each of the Individual Defendants'

Allegedly Defamatory Communications Are Conditionally Privileged

Sachs does not challenge whether defendants met their threshold summary

judgment burden to show the privileged nature of the individual defendants' January 2010

e-mail communications. The evidence shows the January 2010 e-mails were made

internally within Center solely for the purpose of reporting concerns with Sachs's work

performance. Sachs has not identified any external, non-Center-affiliated third parties to

whom those statements were communicated and who might have understood them to

have a defamatory meaning. Indeed, in her deposition, Sachs admitted the e-mails were

sent only to other Center employees, and that she had no knowledge they were sent to

other persons. Sachs has not shown any statements made about her arose on an occasion

falling outside the scope of the common interest privilege. Thus, there appears to be no

dispute that the e-mail statements of Domingue, Powers and Davis "were of a kind

reasonably calculated to protect or further a common interest of both the communicator

and the recipient." (Deaile v. General Telephone Co. of California, supra, 40 Cal.App.3d

at p. 847; see King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 440

17 ["[p]arties in a business . . . relationship have the requisite 'common interest' for the

privilege to apply"].)

The substance and context alone renders the statements subject to the common

interest privilege in the absence of any evidence to suggest they were made maliciously.

We conclude defendants met their burden to show those e-mail communications, which

Sachs alleges were made "in the course and scope of [their] employment at [Center]" in

communications to Sachs's supervisors and other managers, fall within the common-

interest privilege.

3. Summary Judgment is Proper if There is No Triable Issue of Material Fact as

to Malice for Purposes of Defeating the Section 47, Subdivision (c) Privilege

Citing McMann v. Wadler (1961) 189 Cal.App.2d 124 and Cruey v. Gannett Co.,

supra, 64 Cal.App.4th 356, Sachs argues that the issue of malice for purposes of a

qualified privilege "is a question of fact for a jury as a matter of law." According to

Sachs, "a summary judgment issued on this question is grounds for reversal on appeal."

To the extent Sachs is arguing that summary judgment is never appropriate when

the viability of a defamation cause of action turns on the presence or absence of malice to

defeat the section 47, subdivision (c) privilege, she is incorrect. If a summary judgment

opponent's facts are insufficient to prove or infer malice, a defendant may obtain

summary judgment on the qualified privilege as long as it has demonstrated the

communications were made on a privileged occasion. McMann v. Wadler, supra, 189

Cal.App.2d 124 does not stand for Sachs's proposition. Indeed, in McMann, involving a

jury's implied finding of malice, the appellate court pointed out malice does not

18 automatically result in a jury question; holding the evidence supported the jury's finding,

it observed "the evidence of prior defamation of similar import in this case was sufficient

to justify submission of the question to the jury." (McMann v. Wadler, at pp. 126, 129.)

Nor is Sachs's contention supported by Cruey v. Gannett Co. There, the appellate court

held under the specific facts of that case the plaintiff had raised a triable issue of fact as to

whether his former supervisor had acted with malice in making a written complaint about

the plaintiff to their employer. (Cruey v. Gannett Co., supra, 64 Cal.App.4th at pp. 369-

370 & fns. 16, 17.) Cruey does not purport to make a general statement concerning the

propriety of summary judgment when malice is at issue. (Accord, Noel v. River Hills

Wilsons, Inc., supra, 113 Cal.App.4th at p. 1372 [rejecting contention based on Cruey

that summary judgment is unavailable when conditional privilege is at issue and granting

summary judgment on defamation claims based on the common interest privilege].)

4. Sachs Has Not Presented Evidence Raising a Triable Issue for the Jury as to

the Individual Defendants' Malice in Making Their Communications

As stated, the common interest privilege does not arise when a communication is

made with malice. (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at p. 723, fn. 7.)

Sachs contends she has presented sufficient evidence to prove or infer that Powers,

Domingue and Davis acted with malice in sending their e-mails, thus raising a triable

issue of material fact to defeat summary judgment. Specifically, she argues all of the

individual defendants had prior disputes, grudges or ill feelings toward her. She argues

Powers, Domingue and Bates had accused her of violating the law—abusing or

neglecting children—without reasonably believing it to be true or knowing it was false.

19 Sachs maintains they did so with the intent to smear her reputation and damage her

relationship with Center. Sachs further argues the defendants failed to verify facts,

investigate, or interview pertinent witnesses to confirm or disprove the reported incidents,

including the January 14, 2010 incident and Bates's claim that Sachs "threw a table at

her."

There are several flaws in Sachs's arguments concerning the individual defendants'

actions and behavior. First, Sachs's arguments in the trial court did not address these

details. On the question of malice, Sachs argued below the defendants' evidence as to the

lack of malice was "insufficient to support a summary judgment motion." Pointing to the

fact defendants should have reported instances of child neglect to law enforcement, she

argued none of the defendants "stood in relation to the recipients as to afford a reasonable

ground for supposing the motive of communications to be innocent." This was the extent

of her arguments below, and we need not consider new allegations or theories raised for

the first time on appeal. (Dicola v. White Bros. Performance Products, Inc. (2008) 158

Cal.App.4th 666, 676.) To permit Sachs to do so " 'would not only be unfair to the trial

court, but manifestly unjust to the opposing litigant.' " (Ibid.)

Further, most of Sachs's factual assertions in the argument sections of her brief are

not accompanied by citations to the record. This failing would force us to review Sachs's

factual background for the record evidence on which she presumably relies for each

assertion, which we need not do. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 98,

fn. 2 ["Each and every statement in a brief regarding matters that are in the record on

appeal, whether factual or procedural, must be supported by a citation to the record"; this

20 rule applies "regardless of where the reference occurs in the brief"]; Doppes v. Bentley

Motors, Inc. (2009) 174 Cal.App.4th 967, 990; City of Lincoln v. Barringer (2002) 102

Cal.App.4th 1211, 1239, fn. 16.) We may deem unsupported contentions forfeited. (In

re S.C. (2006) 138 Cal.App.4th 396, 406-407 [appellate court can deem a contention

unsupported by a record citation to be without foundation and thus forfeited]; Cal. Rules

of Court, rule 8.204(a)(1)(C) ["Each brief must . . . [¶] . . . [¶] . . . [s]upport any

reference to a matter in the record by a citation to the record."].) These deficiencies alone

entitle us to disregard her arguments.

Additionally, Sachs points to the assertedly new evidence submitted in connection

with her reconsideration motion as "undermin[ing]" defendants' claims. We consider

only the evidence submitted to the trial court with the parties' summary judgment papers.

(E.g., Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [reviewing court generally

only looks to record made in trial court]; DiCola v. White Bros. Performance Products,

Inc., supra, 158 Cal.App.4th at p. 676 [possible theories not fully developed or factually

presented to the trial court cannot create a triable issue of fact on appeal of a summary

judgment]; Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1532.) " 'A party is

not permitted to change his position and adopt a new and different theory on appeal. To

permit him to do so would not only be unfair to the trial court, but manifestly unjust to

the opposing litigant.' " (DiCola, at p. 676.) We accordingly disregard any evidence

presented in support of Sachs's failed request for reconsideration.

We likewise disregard evidence excluded by the trial court without challenge by

Sachs on appeal. (See Code Civ. Proc., § 437c, subd. (c) [appellate court considers all of

21 the evidence except that to which objections have been made and sustained by the trial

court]; Guz, supra, 24 Cal.4th at p. 334.) In particular, Sachs purports to claim she

presented evidence that Powers exhibited hostility toward her in that Powers told another

staffer she was going to "bring [Sachs] down" before leaving for school. But the trial

court excluded this evidence on various grounds, including as inadmissible double

hearsay.5 Sachs ignores this ruling on appeal and presents no argument or authority

suggesting it was an abuse of discretion. (DiCola v. White Bros. Performance Products,

Inc., supra, 158 Cal.App.4th at p. 679 [appellate court reviews evidentiary rulings on

summary judgment for abuse of discretion, which opposing party has the burden to

establish].) We do not consider this purported evidence in deciding whether Sachs met

her responsive summary judgment burden to establish malice. (Loggins v. Kaiser

Permanente Intern (2007) 151 Cal.App.4th 1102, 1108, fn. 5.)

Finally, in arguing the issue of malice, Sachs repeatedly sets forth general legal

principles about the sort of conduct that may amount to malice, without relating them to

the purported facts of this case or admissible evidence. We are entitled to disregard

5 The trial court's order states: "Plaintiff's responsive fact, number 1031[,] refers to an incident in which defendant Powers informed another staff member that she was going to 'bring [plaintiff] down.' The evidence supporting this statement is plaintiff's own deposition wherein she states that this incident was 'told to me,' presumably by another staff member. Plaintiff's statement constitutes inadmissible double hearsay. Though defendant's statement could be considered an admission, there is no exception for the statement made by the other, unnamed staff member. Even if this evidence was admissible, it is conclusory and no context is provided. It is not stated when this occurred and what Powers meant or intended." 22 points made in this manner. (See DiCola v. White Bros. Performance Products, Inc.,

supra, 158 Cal.App.4th at p. 682.)

a. The Evidence Does Not Permit an Inference of Malice by Reason of Ill

Will, Hostility or Prior Disputes

Sachs has not shown the evidence gives rise to malice by reason of the individual

defendants' ill will, hostility or prior disputes. As to Powers, Sachs argues: "Powers had

received multiple reprimands regarding her inappropriate conduct on the job from

[Sachs] over the year and a half prior to the defamatory e-mail. In fact, [Sachs] had

recommended Powers be replaced. Powers was not happy. Her hostility towards [Sachs]

was apparent to coworkers, including Jennifer Maley. Powers also promised to take

Appellant down. Powers' [sic] unhappiness with the reprimands and request that she be

replaced was reflected in letters produced in discovery."

This argument suffers from all of the flaws outlined above. With the exception of

the latter sentence, which we disregard as improperly citing to evidence presented on

Sachs's reconsideration motion, Sachs provides no record support. Where we have found

the portions of the record to which Sachs refers (e.g., purporting to show Sachs

recommended Powers be replaced), the record does not support the assertion (see

footnote 2, ante). Powers stated under oath that she sent her e-mail in good faith out of

concern for Center's children and not out of malice, hatred or ill will; Sachs's arguments

do not raise a meaningful dispute on that point or suggest Powers acted out of ill will and

as a result of prior grudges or disputes.

23 The evidence as to Domingue, Bates, and Davis is similarly deficient. Sachs

claims Domingue had a "documented" history of a grudge due to her July 2008

complaints, and that she felt " 'punished and her job was threatened.' " But our review of

the record shows the latter point is supported only by evidence presented on

reconsideration, and thus we do not consider it. Sachs points to Bates's 2009 reprimand

and ensuing communication about it to McCaslin and Nelson. As for Davis, Sachs

asserts only that she was "good friends" with the other defendants, who had hostility and

ill will toward her.

Sachs's evidence of Domingue's or Bates's prior discipline, without more, does not

give rise to an inference of personal hatred, ill will, or willingness to injure Sachs (see

White v. State of California (1971) 17 Cal.App.3d 621, 629, quoting Hearne v. DeYoung

(1901) 132 Cal. 357, 361-362) sufficient to raise a jury question concerning whether the

individual defendants' communications concerning Sachs's work performance were made

in good faith or out of malice. Sachs suggests her evidence is like that found sufficient to

support malice in Larrick v. Gilloon (1959) 176 Cal.App.2d 408, disapproved of in Field

Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 113, and Cruey v. Gannett Co.,

supra, 64 Cal.App.4th 356. But in Cruey, the court found evidence sufficient to

overcome summary judgment where it showed the defendant accused of defamation

reacted angrily when the plaintiff confronted her with negative job evaluations, telling

him she "would not allow [him] to threaten her job and her family" and screaming that

she "knew how to protect her job." (Cruey, at pp. 369-370 & fn. 17.) She then filed her

written complaint with their employer the next day, accusing the plaintiff of, among other

24 things, performing oral sex on a prostitute at a company party and organizing a visit to a

strip club. (Id. at pp. 369-370 & fn. 16.) And Larrick involves an entirely different

context, where a jury found the defendant's press releases and advertisements published

in newspapers accusing the plaintiff managers and directors of an irrigation district of

conspiracies, collusion, bad faith and dishonesty, imposing " 'phony service charges,' "

and engaging in a " 'land grab,' " among other conduct. (Larrick v. Gilloon, 176

Cal.App.2d at pp. 411-412.) The defendant had asserted he could give the grand jury

information that would bring about the plaintiffs' indictments and removal from office.

(Id. at pp. 411, 415.) The court rejected the defendant's argument that his publications

were mere expressions of opinion, and found the record contained substantial evidence to

support an inference that his statements were not mere expressions of opinions, and that

he did not honestly hold such opinions. (Id. at pp. 415-416.)

Here, the instances of prior discipline are remote, and there is no evidence that

either Domingue or Bates reacted harshly to Sachs or harbored negative feelings toward

her that continued into 2010. Sachs's unsupported assertions concerning Davis's

friendship with the other defendants simply do not give rise to any reasonable inference

of malice. Inferences based on speculation, guesswork or conjecture cannot defeat

summary judgment. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72

Cal.App.4th 798, 807; Joseph E. DiLoreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149,

161.) We conclude the evidence does not raise a reasonable inference of malice based on

ill will or prior disputes so to preclude summary judgment.

25 b. The Evidence Does Not Permit an Inference of Malice Arising from

Improper Motives or Knowledge of Falsity

Sachs argues she presented evidence the defendants acted out of improper

motivations; that if they truly believed Sachs was neglecting children she (or the persons

receiving the e-mails) would have reported the matter to law enforcement or the County

of San Diego, and if they were handling a workplace dispute, they would have followed

Center procedures contained in the employee handbook. She asserts this permits a

reasonable inference the defendants did not reasonably believe the truth of their

accusations. Sachs also argues all of the defendants "recanted" their accusations in their

depositions. The latter assertion is not supported by record citations, or, for that matter,

the summary judgment record.6

The question is whether Sachs's evidence raises a triable issue of fact for the jury

that the defendants "lacked reasonable grounds for belief in the truth of [their]

publication[s] and therefore acted in reckless disregard of [Sachs's] rights." (Roemer v.

Retail Credit Co. (1975) 44 Cal.App.3d 926, 936; in part citing MacLeod v. Tribune

6 Sachs refers to the deposition of Bates, which is not included in the record. Though excepts from Nelson's deposition are in the record, Sachs's cited to pages that are not included. As for Wilkerson-Howard, she did not purport to recant her prior statements in her deposition. Rather, Wilkerson-Howard explained she was complaining about the indirect neglect of children resulting from Sachs's poor treatment of Center staff and its consequences. Powers asserted in her deposition that she had not seen Sachs neglect children within the meaning of the Penal Code. But Powers also explained she had never reported that Sachs had neglected children in the first place. In fact, none of the statements made in Powers's January 29, 2010 e-mail concerning Center's clients (see footnote 3, ante) suggest Sachs was committing neglect as that term is defined within the Penal Code (see footnote 7, post).

26 Publishing Co. (1959) 52 Cal.2d 536, 552; see also McGrory v. Applied Signal

Technology, Inc., supra, 212 Cal.App.4th at p. 1540.) The premise of Sachs's argument

concerning the individual defendants' unreasonable belief in the truth of their complaints

is that each defendant failed to report a claim of suspected child abuse or neglect in

violation of asserted obligations under Penal Code section 11165.7. But neglect for

purposes of that law is particularly defined,7 and the defendants' complaints, viewed in

the context of their e-mails and in light of Sachs's job duties, are not reasonably construed

as complaints of severe or general neglect within the meaning of that law. And, as

stated, each individual defendant disavowed any improper motive or falsity in sending

her e-mail communications about Sachs to Center's management. (Accord, Cuenca v.

Safeway San Francisco Employees Fed. Credit Union, supra, 180 Cal.App.3d at p. 998.)

Even viewing the admissible evidence in the light most favorable to Sachs, we conclude a

trier of fact cannot reasonably infer defendants' complaints were made recklessly or

without reasonable belief in their truth.

7 Penal Code section 11165.2 provides that " 'neglect' means the negligent treatment or the maltreatment of a child by a person responsible for the child's welfare under circumstances indicating harm or threatened harm to the child's health or welfare" and includes both acts and omissions. (Pen. Code, § 11165.2.) The statute defines both severe and general neglect. (Id. at subds. (a) & (b).) Severe neglect is "the negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive" and "those situations of neglect where any person having the care or custody of a child willfully causes or permits the person or health of the child to be placed in a situation such that his or her person or health is endangered . . . including the intentional failure to provide adequate food, clothing, shelter, or medical care." (Pen. Code, § 11165.2, subd. (a).) General neglect is "the negligent failure of a child care provider to provide adequate food, clothing, shelter, medical care or supervision where no physical injury to the child has occurred." (Pen. Code, § 11165.2, subd. (b); see also Cal. Code Regs., tit. 11, § 930.30, subd. (b)(1).) 27 c. Claim of Failure to Reasonably Investigate

Sachs contends she has raised a triable issue of fact as to malice stemming from

the individual defendants' failure to verify facts before sending their e-mails, and Center's

failure to interview "obvious witnesses" or consult "relevant documentary sources," as

well as its reliance on sources "knowingly hostile" to her in deciding to terminate her.

She maintains there are numerous examples of these failures. According to Sachs,

McCaslin and Nelson should have been suspicious of the complaints because of the

individuals' prior discipline by Sachs, but rather than following Center's internal policies

regarding complaints by employees, McCaslin summarily terminated her.

Sachs relies on evidence, including the serious incident reports, that was not

before the trial court when it considered defendants' summary judgment motion. Indeed,

with the exception of one unhelpful reference to a bates stamp, all of her assertions are

made without record support. For that reason alone, Sachs has not demonstrated a triable

issue of fact as to malice on a theory of any particular defendant's insufficient

investigation.

Sachs's claims are unavailing on the merits in any event. The law is clear,

including by Sachs's own cited authorities, that "failure to investigate will not alone

support a finding of actual malice . . . ." (Harte-Hanks Communications, Inc. v.

Connaughton (1989) 491 U.S. 657, 692; and see Annette F. v. Sharon S. (2004) 119

Cal.App.4th 1146, 1169 [mere failure to investigate the truthfulness of a statement, even

when a reasonably prudent person would have done so, is insufficient to demonstrate

actual malice].) There must be some showing of "purposeful avoidance of the truth" or a

28 party's inaction "was a product of a deliberate decision not to acquire knowledge of facts

that might confirm the probable falsity of [the] charges." (Harte-Hanks, at p. 692;

Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041, 1048; see also Rosenaur v.

Scherer (2001) 88 Cal.App.4th 260, 277.) When a case involves the republication of a

third party's defamatory falsehoods, " 'failure to investigate before publishing, even when

a reasonably prudent person would have done so, is not sufficient.' " (Khawar v. Globe

Intern., Inc. (1998) 19 Cal.4th 254, 275-276.)

Here, defendants presented evidence that McCaslin did in fact investigate the

claims against Sachs; he visited the Discovery Hills campus in November 2009 and

observed Sachs's hostile treatment of staff. He spoke with Bates and met personally with

Powers. Bates's claim concerning Sachs pushing a table at her was documented in

Bates's own contemporaneous handwritten notes, which cover incidents occurring over

the course of three months in late 2010 through early 2011. Nothing in McCaslin's July

2010 declaration, relied upon by Sachs as somehow establishing different reasons for his

termination decision, contradicts this evidence.8 In any event, McCaslin gave an

independent reason for Sachs's termination, which was Sachs's incompetent performance

of her job duties particularly in preparing RFPs, and lack of knowledge about her own

8 In his July 2010 declaration, McCaslin states: "I, along with . . . Nelson conducted an investigation into Ms. Sachs' [sic] treatment of children, employees and attention to her duties. We reviewed employee letters, e-mails, and spoke with employees. Our investigation revealed that Ms. Sachs, for over two years, had been neglecting children, employees and her [Center] duties." 29 program, all of which was personally observed and attested to by Wilkerson-Howard in

support of the motion.

Unlike the cases Sachs relies on for her general propositions, Sachs does not

explain what about these circumstances should have suggested to McCaslin or any other

center employee that "obvious" witnesses or documents would have confirmed or

disproved the e-mails' allegations or Bates's claims. (See, e.g., Harte-Hanks

Communications, Inc. v. Connaughton, supra, 491 U.S. at pp. 682, 692 [defendant

newspaper instructed reporters to interview all witnesses to an alleged defamatory

conversation except Patsy Stephens, who the defendant knew was a "key witness," "the

one witness who was most likely to confirm [the publisher's] account of the events," and

whose denial "would quickly put an end to the story"; defendant also decided not to listen

to tapes of Stephens's interview which would have verified or disproved what the

publisher said about the interview]; Khawar v. Globe Intern., Inc., supra, 19 Cal.4th at p.

277 [defendant's editors did not contact eyewitnesses to Robert Kennedy assassination

about which defamatory accusations were made, including "prominent individuals who

could easily have been located"; nor did anyone review the voluminous public records of

the government investigation, and defendant's managing editor "conceded . . . that Globe

made no attempt to independently investigate the truth of any of the statements in the . . .

book"].) The information obtained by McCaslin and Nelson was consistent with earlier

2008 complaints about Sachs's conduct and supported by personal observations of

Powers, Domingue, Davis and Bates, and other sources within Center who Sachs could

identify via discovery. In their summary judgment declarations, each defendant stated

30 they personally interacted with Sachs, and their observations of her mismanagement and

behavior were based on their personal knowledge.9 As for Powers's listing of events, she

stated they were based primarily on her personal observations, and otherwise were based

on credible and verified reports from staff who had reported the matter to her. Sachs has

not demonstrated that the information was based on unverifiable anonymous sources, nor

has she presented evidence allowing some inference that their stories could have been

contradicted by a particular person or document. There is no evidence similar to the

authorities cited by Sachs either supporting a jury finding, or permitting an inference, of

malice.

Accordingly, we cannot reasonably infer that McCaslin or any other Center

employee ignored information that would have rebutted the January 2010 e-mails or

Bates's complaints. The evidence as a whole, even circumstantially, does not allow an

inference that there were " 'obvious reasons to doubt the veracity of [the statements of

Bates, Davis, Domingue and Powers] or the accuracy of [their] reports . . .' " (Khawar v.

Globe Intern., Inc., supra, 19 Cal.4th at p. 276.)

9 Bates states she "personally interacted with [Sachs] on a daily basis"; "observed Ms. Sachs delegate many of her program manager responsibilities to me including helping to prepare the Discovery Hills Program request for proposal"; and all of her notes regarding Sachs "were true and based on my personal observations in good faith . . ." Davis states: "I wrote an email and sent it only to . . . Nelson and . . . McCaslin concerning a January 27, 2010 incident I personally witnessed involving . . . Sachs and a client." Domingue states that the "content of my email was entirely true as I personally observed Ms Sachs' [sic] conduct." Powers states she "personally observed Ms. Sachs [sic] lack of supervision for both the children's program . . . and the adolescents' program"; "personally observed Ms. Sachs' [sic] neglect of children clients, families, employees and her [Center] duties"; and "personally observed Ms. Sachs' [sic] violate company policy and procedures on numerous occasions." 31 d. Failure to Disclose "Exculpatory" Evidence

Citing Parrott v. Bank of America Nat. Trust & Savings Assn. (1950) 97

Cal.App.2d 14 and Stationers Corp. v. Dun & Bradstreet (1965) 62 Cal.2d 412, 420-421

(Stationers Corp.), Sachs contends malice should be inferred from defendants' failure to

disclose exculpatory information—the serious incident reports—or their refusal to

disclose the sources of defamatory information.

We disregard Sachs's references to the serious incident reports submitted in

connection with her reconsideration motion. Otherwise, Sachs maintains Center "failed

to disclose the fact that McCaslin claims to have told Wilkerson well in advance of the

firing that he wanted to get rid of [Sachs], but they both wanted to keep her on staff long

enough to deceive the County . . . in approving their $5M funding request." She argues

Wilkerson-Howard did not disclose the statements made in her January 20, 2010 e-mail,

which Center did not include in her employment file. Sachs finally argues both Powers

and Domingue did not disclose the sources of their information in their e-mails.

The sole matter cited by Sachs for her claim about McCaslin is a snippet from this

court's prior decision concerning defendants' section 425.16 anti-SLAPP motion, in

which we summarized defendant's arguments about the January 2010 e-mails being

matters of public concern. (Sachs v. San Diego Center for Children (Dec. 2, 2011,

D058477) [nonpub. opn.].) Nothing in those few sentences from our prior opinion

supports Sachs's assertion. To the extent Sachs is claiming that McCaslin withheld his

true reasons for her termination, Sachs and her counsel had possession of his July 2010

declaration from which she apparently gleans that conclusion. As for Powers and

32 Domingue, as we have pointed out, each stated under oath the observations about Sachs

contained in their e-mails were true and based either entirely or primarily on their

personal observations.

Sachs's cited authorities are irrelevant, inapposite and do not stand for her asserted

proposition. In Parrott v. Bank of America Nat. Trust & Savings Assn., supra, 97

Cal.App.2d 14 a jury awarded the plaintiff damages on her claim of false imprisonment

and wrongful discharge after she was wrongly accused of stealing a deposit. (Id. at p.

16.) At the page cited by Sachs, the appellant bank claimed the court erred by admitting

evidence as to posttermination acts suggesting oppression, fraud or malice for purposes

of a jury award of punitive damages; the appellate court held the jury could reasonably

infer malice from the letters sent by the bank and bank's other actions in dealing with the

plaintiff after her employment was terminated. (Id. at p. 25.) The case does not involve

the section 47, subdivision (c) privilege or contain any discussion concerning

nondisclosure of exculpatory information as permitting an inference of malice.

Stationers Corp., supra, 62 Cal.2d 412, turns on its unique facts. There, plaintiffs

sued a merchantile agency for defamation, libel and negligence stemming from a report

and letter issued by the defendants describing litigation filed against the plaintiff. The

report stated the action had alleged the managers fraudulently appropriated corporate

assets, and stated there were "authorities" who opined the suit had "considerable merit"

and potential to bring about the removal of a top manager. (Id. at pp. 414-416.) The

defendant moved for summary judgment on grounds the publications were privileged

under section 47, subdivision (c) and submitted declarations from three employees, one

33 of whom stated he had spoken with and relied in good faith on the statements of four

unidentified credit managers who he believed to be reliable and truthful. (Id. at pp. 417-

419.) In a counter declaration, the plaintiff stated he could not deny or offer evidence

rebutting those assertions without the identities of the credit managers, which he had tried

to obtain from the defendant. (Id. at p. 419.) Liberally construing the plaintiff's

declaration, the California Supreme Court stated the plaintiff "in effect claimed that

defendants' refusal to disclose the names prevented plaintiffs from contravening [the

declarant's] assertion of good faith reliance on the statements of the credit managers."

(Id. at p. 421.) Thus, the court held that under settled principles summary judgment had

been improperly granted; defendants had made an "ipse dixit assertion of good faith" and

it would be unjust for a defendant to raise the qualified privilege without requiring him to

disclose information in his possession necessary to determine whether the statements

were made without malice. (Id. at pp. 420-421.) The court further rejected the

defendants' argument that their declarations were uncontroverted: "Defendants cannot

assert with propriety that the declarations opposing the motion are insufficient, when the

insufficiency is compelled by their own evasion." (Id. at p. 421.)

Stationers Corp., supra, 62 Cal.2d 412, addresses the respective moving and

opposing summary judgment burdens, it does not hold that malice, for purposes of the

section 47, subdivision (c) privilege, may be inferred by the failure to disclose

information. More importantly, unlike the plaintiff in Stationers Corp., Sachs does not

claim she was unable to meaningfully oppose defendants' summary judgment motion, or

that she had tried, but was unable, to ascertain the identity of any complaining person

34 during discovery. Indeed, Sachs disputes the truth of the January 2010 e-mails in her

declaration opposing the motion. The evidence shows the individual defendants either

complained about Sachs's own conduct from their own firsthand knowledge or relied on

reports of other Center employees with whom Sachs interacted. Thus, the circumstances

are entirely unlike those in Stationers Corp., because the complaints pertain to Sachs's

own conduct, which she is capable of admitting or denying.

C. Cause of Action Against Center for Breach of the Covenant of Good Faith and Fair

Dealing

Sachs contends Center was not entitled to summary judgment on her cause of

action for breach of the implied covenant of good faith and fair dealing; that she has

demonstrated the existence of triable issues of material fact as to whether Center

breached the implied covenant. Specifically, Sachs argues Center admitted that a

contract existed and that she "performed all of the significant things that the contract

required and received acknowledgement of this in all contemporaneous official business

documentation, employment reviews, and SDCC funding requests to third parties." She

argues Center "unfairly interfered with her continued employ without following the

procedures set forth in the Employment Manual, without advising her of three

complaining e-mails sent within the last two weeks before her summary firing, and by

failing to investigate complaints about her conduct." She further argues Center "unfairly

interfered with [her] right to receive the benefits of the contract" by accepting defendants'

e-mails at face value and not investigating their truth. Sachs argues Center's breach

harmed her in that she lost her job and associated income, was unable to find replacement

35 work because Center did not provide a reference letter, and had her credentials used

"unwittingly" so that Center could obtain funding. As with Sachs's other arguments, her

assertions are not supported by any citation to the record, and on the latter point, Sachs

refers us to other sections of her brief to find the details of these failings.

We nevertheless conclude Sachs has not demonstrated the existence of triable

issues of material fact as to whether Center breached the implied covenant of good faith

and fair dealing. A covenant of good faith and fair dealing is implied in every contract

" ' " 'that neither party will do anything [that] will injure the right of the other to receive

the benefits of the agreement.' " ' " (Agosta v. Astor (2004) 120 Cal.App.4th 596, 607-

608.) The implied covenant of good faith and fair dealing cannot, however, "impose

substantive terms and conditions beyond those to which the contract parties actually

agreed." (Guz, supra, 24 Cal.4th at pp. 349.) It "exists merely to prevent one contracting

party from unfairly frustrating the other party's right to receive the benefits of the

agreement actually made." (Ibid; see also Racine & Laramie, Ltd. v. Department of

Parks & Recreation (1992) 11 Cal.App.4th 1026, 1032 [there is no obligation to deal

fairly or in good faith absent an existing contract].) "Thus if the employer's termination

decisions, however arbitrary, do not breach . . . a substantive contract provision, they are

not precluded by the covenant." (Guz, at p. 350.)

Sachs's conclusory and unsupported assertions make clear that her complaint is

that Center wrongfully or in bad faith terminated her employment. We observe that in

the statement of facts section of her brief, Sachs states she "worked under contract with

[Center] for almost four years" and that all of the individual defendants were aware of

36 this contract. As support, Sachs cites to Center's response to a form interrogatory asking

whether Sachs's employment relationship was governed by any written, oral or implied

agreement, to which Center answered yes, and stated that Sachs had "agreed to abide by

various policies which were contained in [her] employment file" and she "signed

acknowledging her employment relationship with [Center] was 'at will' and could be

terminated by herself or [Center], at any time, for any reason, so long as the reason was

not unlawful." Sachs's evidence merely shows that Center admitted in discovery that

Sachs's employment was expressly at will.

An express agreement for at will employment precludes a claim for breach of the

covenant of good faith and fair dealing, as well as any other breach of implied contract.

(Guz, supra, 24 Cal.4th at pp. 340 & fn. 10, 350-352; Agosta v. Astor, supra, 120

Cal.App.4th at pp. 604 [express at will contract by definition allows an employer to sever

the employment relationship with or without cause], 607-608; Starzynski v. Capital

Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38-39; see also Cruey v. Gannett Co.,

supra, 64 Cal.App.4th at p. 365 ["Cruey's failure to generate a triable issue as to an

implied-in-fact agreement not to terminate except for good cause, which is sufficient to

overcome a contrary express provision, moots any need to examine whether Gannett

acted in good faith when it terminated Cruey."].)

In her summary judgment opposition, Sachs did not dispute the fact she signed

documents expressly acknowledging and agreeing her employment was at will. Sachs

testified in her deposition she understood her employment was terminable at will. Her

claims are largely identical to those made by the plaintiff and rejected in Guz, who

37 asserted his former employer "violated its established personnel policies when it

terminated him without a prior opportunity to improve his 'unsatisfactory' performance"

and that, even if his employment was at will, the implied covenant "precluded [his

employer] from 'unfairly' denying him the contract's benefits by failing to follow its own

termination policies." (Guz, supra, 24 Cal.4th at pp. 348-349.) Any other possible

remedy arising from Center's personnel policies and practices may be contractual (id. at

pp. 352-353), but Sachs does not assert a claim for breach of contract. Thus, the

undisputed nature of Sachs's at will employment defeats Sachs's cause of action,

warranting summary judgment on this claim.

D. Cause of Action for Intentional Interference with Contract Against the Individual

Defendants

In order to prevail on a claim for intentional interference with contract, Sachs must

prove the existence of a valid, enforceable contract between her and Center. (Hahn v.

Diaz-Barba (2011) 194 Cal.App.4th 1177, 1196; Tuchscher v. Development Enterprises,

Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1239; Bed, Bath &

Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52

Cal.App.4th 867, 879.) In addressing this cause of action, Sachs acknowledges, as she

must, that her agreement with Center was for at will employment. Citing Pacific Gas &

Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, she argues that interference

with an at-will contract is actionable interference "on the theory that a contract ' "at the

will of the parties, respectively does not make it one at the will of others." ' " (Id. at p.

1127.) She maintains that "[c]ircumstantial evidence demonstrates that [defendants']

38 actions were not directed towards resolution of problems with Appellant, but rather to

disrupt her employment relationship with [Center]."

Having reviewed the summary judgment evidence, we have not found anything

rebutting each of the individual defendants' sworn statements that they were not aware

any contract existed between Sachs and Center, and did not intend to breach any contract.

Sachs's evidence (Center's discovery admission) does not establish an underlying

enforceable contract of employment, it merely shows she and Center had an at will

employment arrangement. Where "the undisputed facts negate the existence . . . of the

contract claimed, summary judgment is proper." (Guz, supra, 24 Cal.4th at p. 337.)10

10 There is another reason why Sachs's claim fails. Even presuming the existence of some contract of employment, the California Supreme Court has rejected claims for alleged interference of an employment contract by managers and coemployees acting within the course and scope of their employment to protect the employer's interest. "It is . . . well established that corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation's contract." (Shoemaker v. Myers (1990) 52 Cal.3d 1, 24; Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1604). In Shoemaker v. Myers, a terminated public employee sought to claim wrongful interference with a business relationship and wrongful inducement of breach of contract against various directors and officers of the department for which he worked. (Id. at pp. 7-11 & fn 2.) The supervisors were authorized to terminate his employment and were acting on the employer's behalf. (Id. at p. 25.) Although Shoemaker did not have a contract of employment to be breached because he was a public employee (id. at pp. 23-24), the court concluded that the department's officers stood "in the place of the employer" and the department could not "act except through such agents," thus there was "no viable 'inducement of breach of contract' or 'interference with economic advantage' that [was] distinguishable from a cause of action for breach of contract." (Id. at p. 25.) Here, Sachs has not claimed any of the individual defendants were acting outside the scope of their duties or employment, or that they were not authorized to communicate their complaints concerning Sachs. She does not rebut their claims that they were acting in the interests of Center's clients. 39 E. Cause of Action for Intentional Interference with Prospective Economic Relations

Sachs contends she raised evidence showing she had an economic relationship

with Center, and that the individual defendants were attempting to disrupt the

relationship. She claims Bates "secretly went outside of proper procedures to secretly

complain to McCaslin about [Sachs]" and the other defendants "secretly sent emails to

[Sachs's] superiors also outside of proper procedures and without notifying [Sachs]." She

states defendants "intended to disrupt, if not terminate, Appellant relationship [sic] with

[Center], and succeeded."

To prevail on a cause of action for interference with prospective economic

advantage, Sachs has the burden of proving not only that defendants knowingly or

negligently interfered with an economic relationship, but that they engaged in conduct

that was wrongful by some legal measure other than the fact of interference itself.

(Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., supra, 106

Cal.App.4th at p. 1242.)

Sachs does not explain with any authority or reasoned analysis how any of the

asserted interference she describes was wrongful by some legal measure. And she has

described no "prospective economic advantage" other than the continuation of the

employment relationship. (Accord, Shoemaker v. Myers, supra, 52 Cal.3d at p. 24.)

Sachs makes clear that the gravamen of this cause of action is defendants' interference

causing the disruption or termination of her employment with Center. Thus, the claim is

identical in substance to her claim for inducing breach of contract, on which she has

shown no triable issue of material fact that would defeat summary judgment.

40 III. Motion and Cross-Motion for Sanctions

Defendants and Sachs have each moved for sanctions. Defendants point to the

procedural and other deficiencies in Sachs's briefing, as well as the trial court's prior

imposition of sanctions against Sachs for her refusal to withdraw various subpoenas her

counsel issued. They argue Sachs's appeal is frivolous and taken to delay her payment of

over $20,000 in prevailing party costs, and they request monetary sanctions of $43,115 in

attorney fees and costs to respond to Sachs's opening brief. Alternatively, they ask for an

award of $11,305 for extra work performed stemming from Sachs's rule of court

violations.

For her part, Sachs seeks $9,510 in sanctions for her counsel's 31.7 hours spent in

opposing defendants' sanctions motion. She argues defendant's motion is a frivolous

attempt to "extort settlement terms" and, because it repeats their claims about her

procedural violations, constitutes an impermissible surreply brief. She asserts defendants

have improperly introduced new matter into the record (the motion regarding subpoenas)

that is not reasonably material to the appeal's determination. In a sworn declaration

supporting the motion, Sachs's counsel summarizes e-mails and letters pertaining to the

parties' settlement discussions, and claims defendants' counsel threatened to file their

sanctions motion in the event Sachs did not agree to newly inserted settlement terms.

Sachs's counsel's declaration is argumentative, and purports to set out facts (such as

testimony occurring in pending litigation) about which she has not shown personal

knowledge. Defendants oppose Sachs's sanctions motion in part on grounds it was not

timely filed within 10 days after her reply brief was due (Cal. Rules of Court, rule

41 8.276(b)(2)) and is based on inadmissible mediation and settlement communications.

(Evid. Code, §§ 1119, 1126, 1152, 1154).

We decline to award sanctions. An appeal should be deemed frivolous " 'only

when it is prosecuted for an improper motive—to harass the respondent or delay the

effect of an adverse judgment—or when it indisputably has no merit—when any

reasonable attorney would agree that the appeal is totally and completely without

merit.' " (In re Reno (2012) 55 Cal.4th 428, 513, italics omitted; In re Marriage of

Flaherty (1982) 31 Cal.3d 637, 650.) " '[A]ny definition [of a frivolous appeal] must be

read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal.

Counsel and their clients have a right to present issues that are arguably correct, even if it

is extremely unlikely that they will win on appeal. An appeal that is simply without merit

is not by definition frivolous and should not incur sanctions. Counsel should not be

deterred from filing such appeals out of a fear of reprisals. . . . In reviewing the dangers

inherent in any attempt to define frivolous appeals, . . . courts cannot be "blind to the

obvious: the borderline between a frivolous appeal and one which simply has no merit is

vague indeed . . . . The difficulty of drawing the line simply points up an essential

corollary to the power to dismiss frivolous appeals: that in all but the clearest cases it

should not be used." [Citation.] The same may be said about the power to punish

attorneys for prosecuting frivolous appeals: the punishment should be used most

sparingly to deter only the most egregious conduct.' " (In re Reno, at p. 513.)

Though Sachs's briefing was far from a model of good appellate practice, we

cannot say every position taken by her was so wrong that any reasonable attorney would

42 agree her appeal is indisputably without merit. Defendants have not presented evidence

that Sachs has taken this appeal for an improper purpose, i.e., to delay some order

requiring her to pay money to defendants. The sanctions order to which they refer, issued

in July 2012, required Sachs to pay $2,400 in sanctions "within two weeks of this

hearing." There is no evidence Sachs failed to satisfy this order or it was somehow

stayed by this appeal. Indeed, in response, Sachs's counsel states under oath that those

sanctions "have long ago been paid." Further, defendants' assertions concerning the

approximately $20,000 cost award are not addressed in the attorney declaration

supporting their sanctions motion.

As for Sachs's cross-motion for sanctions, we conclude, regardless of its

timeliness, she has not shown with admissible evidence that defendants' sanctions motion

was brought for improper motives. Nor, in view of Sachs's procedural and substantive

failings, including her reliance upon evidence outside the summary judgment record, has

she demonstrated the motion is totally without merit. We accordingly deny the parties'

sanctions motions.

43 DISPOSITION

The judgment is affirmed. The motions for sanctions are denied. The parties are

to bear their own costs on appeal.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.