California Court of Appeal Apr 29, 2014 No. D063860Unpublished
Filed 4/29/14 Schimsky v. Higgins CA
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
ARNOLD SCHIMSKY, D063860
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00100978- CU-DF-CTL) YOLANDA H. HIGGINS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Affirmed.
Yale & Baumgarten and David W. Baumgarten for Plaintiff and Appellant.
Law Offices of Joseph J. Barr, Jr., and Gary L. Ritchie for Defendant and
Respondent.
This case arises out of comments made by defendant Yolanda H. Higgins, a 44-
year-old student at the University of San Diego (USD), concerning her mathematics
professor, plaintiff Arnold Schimsky. She made those comments in response to advice
from the mathematics chair, Dr. John Glick, that she submit a formal complaint and a
request to drop Schimsky's class, setting forth her reasons therefor, so she could drop the
class past the drop deadline. Specifically, the comments made by Higgins were (1)
Schimsky told that class that "algebra is harder for older people to get than if you are
fresh out of school"; (2) when she went to see him during office hours, Schimsky spent
1 All further undesignated statutory references are to the Civil Code. 9
claim; and (3) the qualified privilege in section 47, subdivision (c) (section 47(c)) barred
Schimsky's claims.
The court granted the motion, stating, "As an initial matter, the Court does not
believe the statements are defamatory. However, even if the statements could be
considered defamatory, they are merely statements of opinion. [¶] As a result, the motion
for summary judgment is granted. [¶] In granting summary judgment the Court did not
need to reach [Schimsky's] alternative arguments of privilege based upon [section 47(b)
or (c)] or [Schimsky's] request for a continuance to conduct discovery directed to the
[section] 47(c) issue."
In doing so, based upon lack of foundation, the court sustained Higgins's objection
to Schimsky's declaration wherein he claimed he was not rehired because of Higgins's
complaint and drop request.
DISCUSSION
I. STANDARDS GOVERNING SUMMARY JUDGMENT MOTIONS
"Because this case comes before us after the trial court's grant of summary
judgment, we apply these well-established rules: ' " '[W]e take the facts from the record
that was before the trial court when it ruled on that motion,' " ' and we ' " ' " 'review the
trial court's decision de novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and sustained.' " ' " '
[Citation.] We also ' " 'liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that
party.' " ' " (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 522.) "We
10
need not defer to the trial court and are not bound by the reasons in its summary
judgment ruling; we review the ruling of the trial court, not its rationale." (Oakland
Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)
II. ANALYSIS
A. The Statements Were Not Defamatory
Defamation can be of two types: libel or slander. (§ 44.) Libel is defined in
section 452 and slander in section 46.3 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;
see also Hecimovich v. Encinal School Parent Teacher Organization (2012) 203
Cal.App.4th 450, 470.)
"'Defamation constitutes an injury to reputation; the injury may occur by means of
libel or slander. [Citation.] . . . A false and unprivileged oral communication attributing
2 Section 45 provides: "Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."
3 Section 46 provides: "Slander is a false and unprivileged publication, orally uttered . . . 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 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."
11
to a person specific misdeeds or certain unfavorable characteristics or qualities, or
uttering certain other derogatory statements regarding a person, constitutes slander.' "
(Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 877, italics
omitted.)
In Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798 (Seelig), the
Court of Appeal explained that, as a matter of constitutional law, a statement must imply
a provably false factual assertion in order to serve as the basis of a defamation action:
"'Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot "'reasonably [be] interpreted as stating actual facts' about an individual." [Citations.] Thus, "rhetorical hyperbole," "vigorous epithet[s]," "lusty and imaginative expression[s] of . . . contempt," and language used "in a loose, figurative sense" have all been accorded constitutional protection. [Citations.]' [Citation.] The dispositive question . . . is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion." (Id. at p. 809.)
The Seelig court outlined the process courts use in determining whether or not a
statement implies a provably false factual assertion:
"To ascertain whether the statements in question are provably false factual assertions, courts consider the '"totality of the circumstances."' [Citation.] '"First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense . . . . [¶] Next, the context in which the statement was made must be considered. . . . [¶] This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed."' [Citation.] This crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court." (Seelig, supra, 97 Cal.App.4th at pp. 809-810.)
12
"[A] subjective judgment of the person making the statement" is not one that
implies a provably false factual assertion. (Gallagher v. Connell (2004) 123 Cal.App.4th
were nondefamatory because they were based on "entirely subjective matters rather than
provably false factual assertions"].) For example, in Copp v. Paxton (1996) 45
Cal.App.4th 829, 837, the court noted that other courts have regarded as nondefamatory
any "'broad, unfocused and wholly subjective comment,' [citation] such as that the
plaintiff was a 'shady practitioner' [citation], 'crook' [citation], or 'crooked politician'
[citation]."
In Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958 (Jensen), the court
applied these principles in considering whether a supervisor had made potentially
defamatory statements about an employee in the employee's performance evaluation.
The Jensen court described the employee's defamation action as follows:
"In a nutshell, the lawsuit involves a difference of opinion between an employer and an employee about the quality of the employee's work. A Hewlett-Packard supervisor, Hank Phelps, evaluated the employee, Jensen, as needing to improve his on-the-job performance in certain respects. Jensen took offense at the evaluation, claimed it was false, and accused Phelps of trying to hide his own incompetence." (Id. at pp. 963-964.)
In the performance evaluation, Phelps made the following statements concerning
Jenson's "attitude toward his job responsibilities and his coworkers" (Jensen, supra, 14
Cal.App.4th at p. 971):
"Phelps said Jensen had not 'increased his skill' in project definition and control; was not 'pulling his weight' in meeting various sales objectives; appeared to lack concern for management's need for
13
information; had 'weak' knowledge of project management and process control; showed 'lack of direction, inflexibility and lack of dependability' causing 'unnecessary' delays in projects and 'finger- pointing'; had a productivity 'perceived as low' due to his 'lack of personal ownership of tasks'; displayed 'questionable judgment' in pursuing personal 'vindication' concerning 'behavioral problems' and in breaching confidentiality of personnel matters between him and Phelps; did not 'extend' himself by giving 'a helping hand or pitching in'; projected an 'attitude of if it's not my job, it's your problem'; displayed a 'lack of attention' to tasks and 'overall communication with the team'; and was the subject of a 'tremendous amount of negative feedback.'" (Id. at p. 971, fn. 14.)
The Jensen court held that none of the statements in the evaluation could
"reasonably be interpreted as false statements of fact[s]." (Jensen, supra, 14 Cal.App.4th
at p. 970.) The Jensen court reasoned that the evaluation "documented one manager's
assessment of Jensen's work habits, interpersonal skills and level of effort,
and . . . outlined the employer's expectations with regard to Jensen's improvement," and
stressed that the statements were made in an evaluative context. (Ibid.)
1. The statements at issue are not defamatory because they cannot reasonably be interpreted as implying provably false factual assertions
Schimsky asserts the comments made by Higgins concerning his statements and
demeanor in class and during office visits were defamatory based upon the circumstances
under which they were made. Schimsky also asserts that the comments made by Higgins
were defamatory because (1) they falsely asserted he discriminated against on the basis of
her age and "nontraditional status," and (2) they falsely attribute to Schimsky attributes
that exposed him to contempt and ridicule.
We reject these contentions.
14
In considering the " ' "totality of the circumstances," ' " we first consider " ' "the
language of the statement[s]." ' " (Seelig, supra, 97 Cal.App.4th at p. 809.) Higgins's
statements cannot reasonably be construed as implying a provably false factual assertion.
Rather, they only suggest a general, subjective, overall assessment of his workplace
abilities. The statements are far less specific and have far less potential to be interpreted
as containing factual content than the statements held to be nondefamatory in Jensen.
The language of the statements only reflect broad, subjective, evaluative commentary
regarding Schimsky's workplace performance.
With respect to " ' "the nature and full content of the communication" ' " and "the
audience to whom the publication was directed" (Seelig, supra, 97 Cal.App.4th at
pp. 809-810), Schimsky claims that Higgins made the statements to members of USD's
executive body in an attempt to have him terminated. As with the language of the
statements, the context in which the statements are alleged to have been made indicate
that the statements were intended as a subjective assessment of Schimsky's workplace
abilities and that they are not provably false factual assertions. (See Jensen, supra, 14
Cal.App.4th at p. 970.)
Moreover, Higgins's statements do not, as Schimsky asserts, accuse him of
discrimination. Discrimination requires a showing that a person was subjected to
disparate treatment, such as an adverse action due to age, sex or race. (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 354-355; Mamou v. Trendwest Resorts, Inc. (2008)
165 Cal.App.4th 686, 714.)
15
However, Higgins's statements do not demonstrate facts showing that she was
subjected to any "disparate treatment." They do not state that her test papers, quizzes or
class assignments were graded any differently.
At most, the statements by Schimsky could be considered to ostracize older
students. However, mere ostracism does not amount to discrimination. (Fisher v. San
Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)
B. The Defense of Privilege
Because we have concluded that the statements made by Higgins were not
defamatory, we need not, and do not, address her contention that they were privileged
statements under sections 47(b) and (c).
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's statements regarding the plaintiff's teaching performance and classroom demeanor were not defamatory as a matter of law because they were subjective assessments that could not be reasonably interpreted as provably false factual assertions.
Issues
Whether the defendant's statements regarding the plaintiff's teaching performance and classroom demeanor were defamatory as a matter of law.
Whether the defendant's statements constituted nonactionable opinion rather than provably false factual assertions.
Disposition. affirmed
Quotations verified verbatim against the opinion
“The statements are far less specific and have far less potential to be interpreted as containing factual content than the statements held to be nondefamatory in Jensen.”
“Higgins's statements cannot reasonably be construed as implying a provably false factual assertion. Rather, they only suggest a general, subjective, overall assessment of his workplace abilities.”