Darulis v. Rancho Valencia Resort Partners CA4/1 (2016) · DecisionDepot
Darulis v. Rancho Valencia Resort Partners CA4/1
California Court of Appeal Jan 12, 2016 No. D067663Unpublished
Filed 1/12/16 Darulis v. Rancho Valencia Resort Partners CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
MARK DARULIS, D067663
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2014-00003465- CU-WT-CTL) RANCHO VALENCIA RESORT PARTNERS, LLC et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Eddie C. Sturgeon, Judge. Affirmed.
Mark Darulis, in pro. per., for Plaintiff and Appellant.
Daley & Heft, Lee H. Roistacher, Robert H. Quayle IV and Briana M. Pendergrass
for Defendants and Respondents.
I.
INTRODUCTION
Plaintiff Mark Darulis is employed as a driver for Dynamex, a company that
contracts with a third party, Edward Don & Company (Edward Don), a supplier of
nonfood items to restaurants, to deliver restaurant supplies to Edward Don's customers.
Edward Don received multiple complaints about Darulis and eventually requested that
Dynamex no longer assign Darulis to make deliveries to Edward Don's customers.
Darulis alleges that one of the complaints was made by defendant Stephanie Tesnow, an
employee of another defendant, Rancho Valencia Resort Partners, LLC (Rancho
Valencia). According to Darulis, Tesnow's complaints about Darulis were false and
constituted slander against him.
Darulis filed this action against Tesnow and Rancho Valencia (the Rancho
Valencia defendants), as well as against Edward Don and the other complaining
customers and their employers.1
Darulis asserted a claim against Tesnow for "defamation/slander," and asserted the
same claim against Rancho Valencia based on his allegation that Rancho Valencia is
liable for Tesnow's alleged defamation/slander under a theory of respondeat superior.
Tesnow and Rancho Valencia filed demurrers to Darulis's operative complaint. The trial
1 Darulis has filed separate appeals with respect to judgments related to the other defendants in this action. 2
court concluded that Tesnow's statements about Darulis were statements of opinion, not
fact, and therefore could not support a cause of action for slander. The court also
determined that Darulis failed to allege facts to establish the requisite causation between
Tesnow's statements and any alleged injury he suffered. The court entered judgment in
favor of the Rancho Valencia defendants.
On appeal, Darulis, acting in propia persona, contends that the trial court erred in
sustaining the Rancho Valencia defendants' demurrers with respect to his claims against
them.2 Darulis contends that the statements he attributes to Tesnow are provably false
assertions of fact, not inactionable opinions, and he further contends that he sufficiently
alleged a link between Tesnow's statements and the loss of his delivery assignment for
Edward Don.
We conclude that the trial court appropriately sustained the Rancho Valencia
defendants' demurrers, and that Darulis cannot demonstrate that the alleged statements
can provide the basis for legal liability. We therefore affirm the judgment with respect to
the Rancho Valencia defendants.
2 The record on appeal does not contain an order with respect to Rancho Valencia's demurrer, and it is not clear whether the trial court ever properly entered an order with respect to Rancho Valencia. However, both parties to this appeal assume, based on the trial court's later judgment in favor of Rancho Valencia, that the court implicitly sustained Rancho Valencia's demurrer without leave to amend based on its ruling with respect to Tesnow. 3
II.
FACTUAL AND PROCEDURAL BACKGROUND3
Darulis filed a six-count complaint against multiple defendants, including Rancho
Valencia, Tesnow, two other individuals, the Edward Don & Company (Edward Don)
and Maderas Country Club.4
Darulis alleges that he is a delivery driver for Dynamex. According to the
complaint, Dynamex "retains a number of accounts for which they provide delivery
services . . . one of which is the 'Ed Don' account." The "Ed Don Company provides
products to restaurants such as plates, glasses, napkins, etc., everything a restaurant
would use in its day to day operations except the food."
In approximately 2009, Dynamex assigned "permanent driver[s]" to each of four
routes it had created for the Edward Don account. Darulis was assigned to one of these
routes, and he would "do this route every Tuesday and Thursday," making approximately
25 deliveries per week. In 2010, Darulis was assigned an additional Edward Don route,
which meant that he was making approximately "30 stops a week for Ed Don."
In April 2011, Edward Don "received a complaint from a receiver at the Grand
Del Mar Country Club" stating that Darulis "did not provide good service" and "was
3 Because we are reviewing the trial court's ruling on a demurrer to the complaint, our recitation of the factual background of this matter is derived from the allegations set forth in that pleading. 4 The operative complaint is the "Amended Complaint," filed June 25, 2014. 4
rough in his deliveries." Edward Don contacted Dynamex and asked that Darulis not
deliver to the Grand Del Mar Country Club again.
In March 2013, "another complaint was issued against [Darulis]." A "new
receiver at the Rancho Valencia Resort," later identified as Tesnow, complained that
Darulis was a " 'Hot Mess,' " he "smelled of smoke all the time," "his truck was a total
wreck and [was] so dangerous that if you saw it on the highway you would try to stay as
far away as possible," he "did not have the agility to climb onto the back of his truck,"
and that "he grumbled."
Approximately two and a half weeks after this second complaint was made,
"Darulis received a complaint from the [Maderas] Country Club." Darulis alleges that he
was delivering a "large load of product on his cart and the load had shifted and Darulis
had to hold on to it with both hands." After entering the delivery area, Darulis
"encountered an individual who was just standing around and he raised his voice to
Darulis stating he would appreciate it if he would not do that." Although Darulis was not
sure why the man was upset, Darulis "replied OK and made his delivery and left."
According to the allegations of Darulis's complaint, the person with whom he had had
this encounter "called up Ed Don and in an extremely emotional state complained that
Darulis had disrespected him and broken down/almost broke down their delivery gate."
After Edward Don received this third complaint about Darulis, someone from
Edward Don called a manager at Dynamex and "ordered that Darulis be fired from the
5
Ed Don Account." According to the relevant pleading, "[a]fter 4 years and 3 months and
more than 6500 deliveries for Ed Don, Darulis was out of a job."5
In the complaint, Darulis attempted to set forth a single cause of action against
Tesnow for "defamation/slander." Darulis alleged that Tesnow's statements to a
representative of Edward Don were false accusations, and that Edward Don "considered
[the statements] when they fired Darulis." Darulis also claimed that Tesnow's "actions
were negligent concerning her slander."
In addition to the claim against Tesnow, Darulis attempted to set forth a single
cause of action against Rancho Valencia. Darulis stated that he "wishes to pursue
damages against Rancho Valencia under the doctrine of respondeat superior . . . ."
The Rancho Valencia defendants demurred to Darulis's complaint, asserting that
the statements Tesnow made are not provably false. The defendants also maintained that
Tesnow's statements were not a substantial factor in causing Darulis any harm and
therefore cannot, as a matter of law, provide a basis for liability under Darulis's slander
claim. The trial court sustained Tesnow's demurrer without leave to amend.
The trial court entered judgment in favor of the Rancho Valencia defendants on
March 2, 2015. Darulis filed a timely notice of appeal.
5 Elsewhere in the complaint, Darulis contends that he was "fired from the Ed Don Account" (italics added), suggesting that Darulis was not, in fact, fired as an employee of Dynamex, but instead, was no longer assigned to deliver Edward Don products. 6
III.
DISCUSSION
On appeal, Darulis contends that the trial court erred in sustaining the demurrers,
arguing that his complaint sufficiently asserts a cause of action for slander against
Tesnow, and, based on vicarious liability, against Rancho Valencia, as well.6
A. Legal standards
This court applies the following well-established law in reviewing a trial court's
order sustaining a demurrer without leave to amend: " 'We treat the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or conclusions of fact
or law. [Citation.] We also consider matters which may be judicially noticed.'
[Citation.] Further, we give the complaint a reasonable interpretation, reading it as a
whole and its parts in their context. [Citation.] When a demurrer is sustained, we
determine whether the complaint states facts sufficient to constitute a cause of action.
[Citation.] And when it is sustained without leave to amend, we decide whether there is a
reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.] The burden of proving such reasonable possibility
is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
6 Because Darulis does not challenge any other aspect of the court's sustaining of the Rancho Valencia defendants' demurrers, he has forfeited any other potential claims of error. 7
B. Analysis
"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.) Defamation "has two forms—
libel and slander." (Civ. Code, § 44; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d
711, 723.) Civil Code section 46 provides the definition of slander, as follows:
"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."
" ' "The sine qua non of recovery for defamation . . . is the existence of a
falsehood." [Citation.] [¶] The falsehood requirement is grounded in the First
Amendment itself. "Under the First Amendment there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of other ideas." ' " (Nygard, Inc.
v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048.) Therefore, in order "[t]o state a 8
defamation claim that survives a First Amendment challenge, . . . a plaintiff must present
evidence of a statement of fact that is 'provably false.' " (Ibid.; see also Comstock v. Aber
(2012) 212 Cal.App.4th 931, 948 [claim for slander requires " 'a "provably false factual
assertion" ' "].)
Statements of opinion, therefore, are generally not actionable pursuant to a slander
claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 720.) An opinion can be actionable if it
implies a false assertion of fact, but " '[s]atirical, hyperbolic, imaginative, or figurative
statements [remain] protected because "the context and tenor of the statements negate the
impression that the author seriously is maintaining an assertion of actual fact." ' " (Ruiz v.
Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471; see also Grenier v.
accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or
reprehensible personal characteristics or behavior," it cannot support defamation cause of
action, even when the person's "perceptions about an employee's efforts, attitude,
performance, potential or worth to the enterprise are objectively wrong and cannot be
supported by reference to concrete, provable facts"].) Rather, Tesnow's complaints about
Darulis are in the nature of "rhetorical hyperbole" and/or "imaginative expressions of 10
contempt" used "in a loose, figurative sense," rendering them not actionable as a matter
of law. (Grenier v. Taylor, supra, 234 Cal.App.4th at p. 486.)
Given our conclusion that the statements Darulis alleges were defamatory are not
actionable as a matter of law, Darulis has not demonstrated—and cannot demonstrate—
that there is a reasonable possibility that further amendment could cure the deficiencies of
his pleading. (See Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) We conclude, therefore,
that the trial court did not abuse its discretion in sustaining the demurrers without leave to
amend.
IV.
CONCLUSION
The judgment of the trial court in favor of Tesnow and Rancho Valencia is
affirmed.
AARON, J.
WE CONCUR:
O'ROURKE, Acting P. J.
IRION, J.
11
AI Brief
AI-generated · verify before citing
Holding. The court held that the alleged defamatory statements made by the defendant were non-actionable expressions of opinion and rhetorical hyperbole rather than provably false factual assertions. Consequently, the trial court properly sustained the defendants' demurrers without leave to amend.
Issues
Whether the trial court erred in sustaining the defendants' demurrers to the plaintiff's slander claim.
Whether the alleged statements constituted actionable false factual assertions or protected opinions.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“It is clear from the language that Tesnow employed, and the context in which her statements were made, that these statements are in the nature of her opinions and/or her subjective judgments about Darulis, and are not statements of provable facts.”