Chatham v. Shindler

Here, defendants assert that the statement at issue was subject to the common interest privilege. A communication made “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

information” is subject to the common interest privilege. (Civ. Code, § 47, subd. (c).) The common interest privilege applies where statements are made “concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.” (Ibid.) It also extends to communications between management and coworkers regarding disciplining an employee. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538.)

Generally, a privilege would be asserted in the answer as an affirmative defense. (Tschirky v. Superior Court (1981) 124 Cal.App.3d 534, 538.) However, where the privilege is apparent on the face of the complaint, it is appropriately the subject of a demurrer. (Ibid.) Here, the common interest privilege is apparent on the face of the complaint as plaintiff alleges statements regarding job performance made by Shindler to defendant corporation and by defendant corporation to prospective employers. (Complaint, ¶¶ 70- 71.)

A plaintiff can overcome the privilege by alleging actual malice. (McGrory v. Applied Signal Technology, Inc., supra, 212 Cal.App.4th at p. 1538.) This requires pleading the statement was “motivated by hatred or ill will towards the plaintiff or ... that the defendant lacked reasonable ground for belief in the truth of the publication and thereafter acted in reckless disregard of the plaintiff’s rights.” (Ibid.) “Mere allegations of malice are not sufficient.” (Tschirky v. Superior Court, supra, 124 Cal.App.3d at p. 538.) Facts must be alleged. (Id. at p. 539.)

Plaintiff argues that she has sufficiently alleged actual malice. Here, plaintiff has alleged that defendant Shindler made statements that plaintiff had violated policy, was unreliable, and deserved to be terminated. (Complaint, ¶ 70.) She also alleges that prior to this, plaintiff had suffered a seizure while at work on July 5, 2025, requested time off as an accommodation on July 14, 2025, on August 5, 2025 she made a disability discrimination complaint, was held after her shift had ended in order to be scolded about making the complaint the same day, and then counseled for working overtime on August 8, 2025, culminating in her termination on August 9, 2025. (Id. at ¶¶ 13-19.)

She also alleges the statements were made because of a “grudge, former dispute, previous quarrel, rivalry, or out of anger and hostility, or hatred, or ill will or ill feelings”. (Id. at ¶ 78.) Plaintiff has sufficiently alleged facts supporting a claim of ill will as to defendant Shindler. As such, she has sufficiently alleged actual malice as to defendant Shindler.

Plaintiff has alleged that defendant corporation published statements that she had violated policy, was unreliable, and deserved to be terminated. (Complaint, ¶ 71.) She alleges that defendants lacked reasonable grounds for belief in the truth of these statements, failed to investigate them, and knew they were false. (Id. at ¶¶ 78-79.) Plaintiff has sufficiently alleged facts against defendant corporation consistent with actual malice. The court overrules the demurrer to the eighth cause of action for defamation.

Strike

A motion to strike may be used to address defects in pleadings otherwise not challengeable by a demurrer. (See Code Civ. Proc., § 435.) Code of Civil Procedure 4

section 436 provides that a court may strike irrelevant, false, or improper matters, or parts of pleadings not filed in conformity with the rules of court. A motion to strike can be used to attack either a portion or the entirety of a pleading. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.)

Civil Code section 3294, subdivision (a) provides that plaintiffs may recover punitive damages where there is clear and convincing evidence the defendant has engaged in oppression, fraud, or malice. Here, plaintiff has prayed for punitive damages based on malice. Malice is conduct which is intended to cause injury or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Simply alleging conscious disregard is not enough to recover punitive damages. The plaintiff must also allege that defendant acted despicably. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Despicable conduct is conduct involving circumstances that are base, vile, or contemptible. (Id. at p. 725.)

Defendants argue that plaintiff cannot allege punitive damages against defendant Shindler or defendant corporation because her defamation claims against them are insufficient. The court has already found that defamation is sufficiently pled against defendants.

Defendants further argue that punitive damages are not available against a corporate defendant because plaintiff has not alleged a sufficiently senior employee acted with malice, oppression, or fraud. Civil Code section 3294, subdivision (b) provides that employers shall not be liable for punitive damages based on an employee’s conduct unless the employer knew an employee was unfit and employed the employee with a conscious disregard for the safety or rights of others, ratified the conduct, or was personally guilty of the oppression, fraud, or malice.

Additionally, the corporation will only be held liable for its knowledge and conscious disregard, authorization, or ratification for conduct by an officer, director, or managing agent of the corporation. (Ibid.) Managing agents are those who have “substantial discretionary authority over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.) The purpose of this is to consider the “corporation’s institutional responsibility.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 714.)

The issue of “[t]he scope of a corporate employee’s discretion and authority” is a question of fact, determined “on a case-by-case basis.” (White v. Ultramar, Inc., supra, 21 Cal.4th at p. 567.) Plaintiff has alleged that defendant Shindler “was at all times relevant hereto, a supervisor and/or a managing agent” of defendant corporation. (Complaint, ¶ 3.) The court denies the motion to strike punitive damages.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 6/8/2026. (Judge’s initials) (Date) 5