Kelly v. General Telephone Co.

Opinion

Plaintiff, John Kelly, appeals from the order of dismissal entered following the sustaining of demurrers of defendant, General Telephone Company, without leave to amend.

On August 5, 1980, plaintiff filed a complaint containing three causes of action: slander, interference with business relations, and intentional infliction of emotional distress. An uncertainty demurrer to the cause of action for slander was sustained, general demurrers to the other causes of action were sustained, and plaintiff was given leave to amend.

Plaintiff’s first amended complaint contained five causes of action: slander, interference with prospective advantage, negligent infliction of emotional distress, intentional infliction of emotional distress, and violation of Labor Code section 1050. The general demurrers to the causes of action for interference with prospective advantage and violation of Labor Code section 1050 were sustained without leave to amend. The general demurrers to the other causes of action were sustained with 30 days leave to amend. Since the order sustaining the demurrers did not include a statement of the grounds on which the order was based as required by Code of Civil Procedure section 472d, we are unable to ascertain the basis for the trial court’s decision.

Plaintiff filed a second amended complaint. The general demurrer to plaintiff’s second amended complaint was sustained without leave to amend “per [the] points and authorities in [defendant’s] moving papers.”

I

In our review of the orders sustaining the demurrers without leave to amend, we accept as true all factual allegations properly pleaded. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 , 713 [ 63 Cal.Rptr. 724 , 433 P.2d 732 ]; Goldstein v. Enoch (1967) 248 Cal.App.2d 891 ,

Plaintiff alleges that Hansen made the statements with intent to injure plaintiff’s reputation. He alleges that Hansen made the statements for the reason that he hated plaintiff because of plaintiff’s union activities.

Defendant argues that plaintiff did not allege publication of these statements because plaintiff alleged only that the statements were made by one of defendant’s employees to other employees of defendant. This argument is without merit as publication occurs when a statement is communicated to any person other than the party defamed. (Bindrim v. Mitchell (1979) 92 Cal.App.3d 61 , 79 [ 155 Cal.Rptr. 29 ], cert, den., 444 U.S. 984 [ 62 L.Ed.2d 412 , 100 S.Ct. 490 ].) Under principles of respondeat superior, an employer may be held liable for a defamatory statement made by its employee. (See Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406 , 411 [ 134 Cal.Rptr. 402 , 556 P.2d 764 ].) That publication may involve internal corporate statements was recognized in Agarwal v. Johnson (1979) 25 Cal.3d 932 , 944 [ 160 Cal.Rptr. 141 , 603 P.2d 58 ], the court stating that internal company statements regarding the plaintiff’s “‘lack of job knowledge and cooperation’” were “published.” (Ib id.)

The statement that plaintiff falsified invoices was slanderous per se in that it charged plaintiff with forgery. Civil Code section 46 defines slander in pertinent part as follows: “Slander is a false and unprivileged publication, orally uttered ... which: [U] 1. Charges any person with crime .... ” Forgery may be committed by falsification of invoices with intent to defraud. (Pen. Code, § 470.) The statement that plaintiff falsi

The qualified privilege of Civil Code section 47, subdivision 3, may apply to the statement that plaintiff falsified invoices. That section provides in pertinent part that “A privileged publication ... is one made ... [U] 3. In a communication, without malice, to a person interested therein, (1) by one who is also interested . . ..” This qualified privilege may exist where the communicator and recipient have a common interest and the communication is reasonably calculated to further that interest. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841 , 846 [ 115 Cal.Rptr. 582 ].) Communication among a company’s employees that is designed to insure honest and accurate records involves such a common interest.

Malice necessary to prevent application of the qualified privilege may be alleged by pleading that the publication was motivated by hatred or ill will toward the plaintiff. (See Sanborn v. Chronicle Pub. Co., supra, 18 Cal.3d 406 , 413-414.) Plaintiff alleges, “the statements set forth above were published . . . with express and implied malice and with design and intent to injure plaintiff in his good name, reputation and employment .... The statements were made with malice in fact by Tom Hansen ... in that: ... [If] (c) Mr. Hansen . . . harbored ill will and hatred for the plaintiff in that he has a history of being active with his union ....” By these allegations, plaintiff sufficiently pleaded malice. (See ibid.) The trial court erred in sustaining the demurrer to the cause of action for slander.

Plaintiff employs in part a “chain letter” or cumulative type of pleading. That is, plaintiff’s cause of action for negligent infliction of emotional distress, the second cause of action in the second amended complaint, incorporates by reference the entire first cause of action. This type of pleading should be avoided as it tends to 'cause ambiguity and creates redundancy.

Plaintiff alleges that defendant had a duty not to accuse any of its employees of falsifying invoices without conducting a reasonable investigation. Plaintiff then alleges that defendant breached this duty “by its conduct mentioned herein.” There is no express allegation of defendant’s failure to investigate. Plaintiff further alleges that as a proximate result of defendant’s breach, he suffered humiliation and emotional distress.

Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 , 930 [ 167 Cal.Rptr. 831 , 616 P.2d 813 ], held that there is a cause of action for negligent infliction of serious emotional distress. The court there held that such a cause of action was present because the defendant’s conduct was objectively verifiable conduct that foreseeably elicited a serious emotional response, thus serving as a measure of the validity of the plaintiff’s claim of emotional distress. Failure to investigate charges of falsification of invoices is also objectively verifiable and likely to cause serious emotional distress.

Although plaintiff alleged that he suffered emotional distress, he failed to allege the degree of emotional distress suffered. Serious emotional distress is an essential element of a cause of action for negligent infliction of emotional distress. (See ibid.) Since plaintiff failed to allege that defendant’s conduct caused him to suffer serious emotional distress and also failed to allege that Mr. Hansen did not conduct a reasonable investigation of the charges, there was no error in sustaining the

Plaintiff’s cause of action for intentional infliction of emotional distress, the third cause of action in the second amended complaint, incorporates by reference both causes of action already summarized. Plaintiff alleges that the statements complained of were made to cause plaintiff to suffer emotional distress and caused plaintiff “humiliation, mental anguish and emotional and physical distress.” He also alleges that defendant persisted in the described conduct even after plaintiff informed defendant that the statements were false. The allegation that defendant persisted in the described conduct is ambiguous in that various acts of defendant were alleged, including the change made in plaintiff’s personnel records as well as the communication of the defamatory matter to numerous employees.

Our Supreme Court has stated that conduct may be considered outrageous when a defendant abuses a position that gives it the power to damage a plaintiff’s interest. (Agarwal v. Johnson, supra, 25 Cal.3d 932 , 946.) We hold that the spreading of deliberately false statements that a former employee in effect committed forgery is extreme and outrageous conduct. When such conduct results in alteration of the former employee’s personnel records to reflect that he is ineligible for rehire, a position of power has been abused. As our Supreme Court has stated, abuse of a position that gives one the power to damage a plaintiff’s interest is outrageous conduct.

“A prima facie case [of intentional infliction of emotional distress] requires: ‘(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress. [Citations.]”’ (Ibid.) As plaintiff has not alleged that he suffered severe emotional distress, the demurrer to the cause of action for intentional infliction of emotional distress should have been sustained, but plaintiff should have been afforded an opportunity to amend. If plaintiff amends, he should allege with greater specificity what conduct of defendant persisted after plaintiff informed defendant that the statements were false.

V

The cause of action for violation of Labor Code section 1050, the fifth cause of action in the first amended complaint, after incorporating by reference the first two causes of action and inadequately pleaded causes of action for intentional and negligent infliction of emotional distress, alleges that defendant “knowingly caused ... its agents in its employ to commit a violation of Section 1050 of the California Labor Code” and that, as a proximate result thereof, plaintiff was not rehired. Labor Code section 1050 provides, “Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor.” Labor Code section 1054 provides that any person who violates section 1050 is liable to the aggrieved party for treble damages.

Labor Code section 1050 applies only to misrepresentations made to prospective employers other than the defendant. It does not apply to misrepresentations made by employees of the defendant to other of the defendant’s employees.

Labor Code section 1050 was enacted in 1937 as a restatement of former Penal Code section 653e. (Stats. 1937, ch. 90, § 2, p. 185; Stats. 1937, ch. 90, § 1050, p. 211; Stats. 1937, ch. 90, § 8100, pp. 326-328.) Former Penal Code section 653e provided: “Any person, firm or corpo

The order of dismissal is reversed. The trial court is directed to overrule the demurrer to the first cause of action of the second amended complaint and to grant plaintiff a reasonable time within which to amend the second and third causes of action of the second amended complaint. No leave shall be granted to amend the second cause of action of the first amended complaint or the fifth cause of action of the first amended complaint.

Spencer, P. J., and Lillie, J., concurred.

A petition for a rehearing was denied October 27, 1982, and the opinion was modified to read as printed above.