Foley v. One Harbor Drive Homeowners Assn. CA4/1

Filed 4/30/13 Foley v. One Harbor Drive Homeowners Assn. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

ANNE MARIE FOLEY, D060174

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2010-00088787-
CU-WT-CTL)
ONE HARBOR DRIVE HOMEOWNERS
ASSOCIATION et al.,

Defendants and Respondents.

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

Denton, Judge. Affirmed.

In this defamation and wrongful termination action, plaintiff Anne Marie Foley

appeals from the grant of summary judgment in favor of the defendants, who are (1) her

former employer, defendant One Harbor Drive Homeowners Association (Association);

and (2) David Grimes, Donald Messmer, and Ray Stewart (collectively the individual

defendants), all of whom were Association homeowners, and two of whom (Grimes and
Messmer) were members of the Association's Board of Directors (the Board) when this

action arose. This action arose when Grimes allegedly made slanderous statements about

Foley and her compensation at the Association's April 2009 annual homeowners meeting,

Foley thereafter complained through her attorney, and the Association later terminated

her employment based on proffered budgetary reasons after the individual defendants

allegedly made additional defamatory statements about her.

In her complaint Foley asserted causes of action for slander per se against all of

the individual defendants and for libel against Stewart, as well as claims against the

Association for wrongful termination in violation of public policy, breach of the implied

covenant of good faith and fair dealing, and breach of an implied contract not to

terminate her employment except for good cause.

Foley contends the court erred in granting summary judgment because (1) with

respect to her slander per se and libel claims, the individual defendants' statements are

provably false and issues of material fact exist as to malice; (2) with respect to her claim

for wrongful termination in violation of public policy, issues of material fact exist as to

whether retaliation was the true reason for her termination, and thus as to whether the

Association's proffered budgetary reason was a mere pretext; and (3) with respect to her

claims for breach of implied contract and breach of the implied covenant of good faith

and fair dealing, which are based upon the same factual allegations, ample evidence

establishes an implied contract, and issues of material fact exist as to whether the

Association acted in bad faith by retaliating against her. For reasons we shall discuss, we

affirm the judgment.

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 FACTUAL AND PROCEDURAL BACKGROUND1

A. The Complaint's Causes of Action and Factual Allegations

As pertinent here, Foley's complaint asserted five causes of action:2 (1) slander

per se (first cause of action), alleged against all three of the individual defendants; (2)

libel (second cause of action), alleged against Stewart only; (3) wrongful termination in

violation of public policy (third cause of action), alleged against the Association based on

Labor Code section 6310, which prohibits employers from retaliating against employees

who complain about unsafe or unhealthy working conditions; (4) breach of the implied

covenant of good faith and fair dealing (fourth cause of action), alleged against the

Association; and (5) breach of an implied contract not to terminate her employment

except for good cause (fifth cause of action), also alleged against the Association.

In support of these claims, Foley's complaint alleged she had worked for the

Association as director of concierge services and special events for nearly 15 years, she

had competently performed her duties in a diligent and professional manner, and she had

received annual bonuses and raises with the exception of one year. She alleged that

Grimes, a member of the Board and homeowner who was concerned he would lose at the

upcoming Board election, "verbally attacked" and slandered her at the April 2009 annual

meeting of the Association's members by falsely stating to other homeowners and others

1 The parties provide cursory and incomplete summaries of the complicated
procedural background in this case.

2 Foley dismissed with prejudice a sixth cause of action for violation of Labor Code
section 201.
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that she was overpaid and that the reason she did not leave was that she could not find a

job elsewhere. Foley also alleged Grimes made additional slanderous comments at other

Association meetings that injured her in her occupation, by falsely stating that she was

earning a base annual salary of $96,000 when she was earning significantly less than that

amount and that she had received a 10 percent bonus, and that Grimes made these false

statements to cause homeowners and others to wrongly believe she was overpaid and to

demand her resignation.

Foley's complaint also alleged that Messmer and Stewart made slanderous

comments about her by repeating Grimes's false comments and that Stewart also falsely

stated she was overpaid, she did not work six weeks a year, and she did not have the

necessary skills to do her job.

Foley also alleged she met with Raj D'Souza, the Association's general manager,

after the Association's April 2009 annual meeting, and D'Souza represented to her that

her job was safe and she was not going to be fired. She also alleged that to restore her

good reputation, she retained counsel, who sent a written complaint to the Board about

Grimes's "wrongful conduct", Grimes and "others" at the Association thereafter embarked

on a retaliation campaign against her for complaining about Grimes's "slanderous

remarks", and Grimes said to at least one other person that Foley "had another thing [sic]

coming" if she thought she could sue Grimes or the Association or otherwise hold him

accountable for his conduct.

Foley alleged that General Manager D'Souza was instructed to make working

conditions unpleasant for her in an effort to get her to resign. She further alleged that

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"[d]efendants, through their conduct and defamatory statements, created an unsafe and

unhealthy working environment for [her]," and the Association terminated her

employment "in retaliation for her complaints about the unsafe and unhealthy working

conditions" in violation of Labor Code section 6310.

The complaint also alleged that Grimes and the Board terminated Foley's

employment without cause on September 25, 2009, during an executive Board session

organized by Grimes, "in retaliation for [her] complaints about Defendants' prior

wrongdoing." It further alleged her employment "was purportedly terminated because

the [Association] wanted to eliminate her position and save money under the revised

2010 budget," but her position was "not eliminated as a cost saving measure and all her

job duties [were] currently being performed" by Michael Cockerham, who previously

was the Association's doorman. Messmer also voted to terminate Foley's employment,

but two other Board members voted against terminating her employment. In addition, the

complaint alleged that according to the bylaws, all discussions regarding budgetary issues

must be open to the homeowners, and the decision to terminate Foley's employment

"could not have been for budget related issues only" because the Board's executive

session was not open to all homeowners.

Foley alleged that after she was fired, Stewart sent to other homeowners a letter in

which he stated that Foley's position "required duties and talents beyond those that our

previous concierge [Foley] demonstrated" and that Stewart repeated these same

comments to homeowners. These written statements, "led others to believe [she] did not

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have the job skills necessary to perform her job and that she had been terminated for

cause."

Foley also alleged that after she was fired, Messmer "made comments to other

homeowners that there were reasons he could not discuss as to why [her] employment

was terminated, thus leading others to believe [she] was terminated for cause," when in

fact she had not been terminated for cause. She further alleged that during her 15-year

tenure with the Association, she "performed her job duties in a highly competent and

professional manner and received commendations and raises"; the Association "never

once in 15 years gave [her] a negative verbal or written performance review," and no one,

other than the individual defendants beginning in April 2009, "ever said anything to the

effect that she was performing her job duties in any manner other than competently,

diligently, and professionally."

Foley further alleged that the reason given for her termination─to save

money─was false and pretextual because (1) the Association "did not eliminate [her]

position, but instead simply had Cockerham assume [her] responsibilities"; (2) "had the

real reason been budgetary, the meeting at which [her] employment was terminated

should have been open to all homeowners, but was not"; and (3) the Association "gave

Cockerham a raise, thus refuting any claim that Foley was fired to save money."

B. Defendants' Summary Judgment/Summary Adjudication Motion

In support of their joint motion for summary judgment or, alternatively, for

summary adjudication, defendants claimed that all five causes of action alleged in the

Foley 's complaint fail as a matter of law for the following reasons:

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 1. First and second causes of action: Slander and libel (respectively)

With respect to the first and second defamation causes of action, the individual

defendants argued that (1) the alleged defamatory statements were privileged under Civil

Code section 47 because they were made by homeowners to other homeowners who

shared a common interest in the information and the Board's budget decisions; and (2)

"these very same characterizations of job skills and job performance are exactly the types

of communications protected by the court in Jensen v. Hewlett-Packard [Co. (1993) 14

Cal.App.4th 958]."

2. Third cause of action: Wrongful termination in violation of public policy

With respect to the third cause of action for wrongful termination in violation of

public policy based on Labor Code section 6310, and citing this court's decision in Muller

v. Automobile Club of So. California (1998) 61 Cal.App.4th 431 (Muller), the

Association argued the alleged defamatory statements "[did] not constitute unsafe

working conditions or workplace safety issues," and thus the statute "provides no public

policy protection." Furthermore, the Association argued, Foley's deposition testimony

shows that the only basis upon which she believed the Association retaliated against her

was that Grimes was upset about the letter her attorney sent to the Association; the

undisputed facts show that any alleged comments Grimes made about the letter were

"wholly unrelated to the Board's decision to eliminate two positions due to budgetary

constraints"; D'Souza's deposition testimony shows he had discussed eliminating Foley's

position a year before the Board's September 24, 2009 meeting as part of previous budget

discussions; and, thus, "since such budget discussions took place long before Mr. Grimes'

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alleged comments about the letter from Foley's counsel sent on April 23, 2009, clearly

Foley has failed to establish any relationship to her termination."

3. Fifth cause of action: Breach of implied contract

The Association next argued, with respect to the fifth cause of action for breach of

an implied contract not to terminate Foley's employment except for good cause, that even

if such an implied contract were assumed to exist, "Foley ha[d] no evidence to establish

her ultimate burden of proof that her termination of employment was in fact wrongful"

because the Association "ha[d] articulated a valid, good cause reason for Foley's

termination," and "[t]he termination of employment by way of the elimination of a

position due to economic constraints has long constituted a legitimate, good cause reason

under California law for an employee's termination." Citing Burton v. Security Pacific

Nat. Bank (1988) 197 Cal.App.3d 972, the Association also argued that Foley's "own

subjective belief, speculation and conjecture that the reason for her termination was a

pretext for termination does not suffice as evidence to establish her claim."

4. Fourth cause of action: Breach of implied covenant of good faith and fair
dealing

Finally, with respect to the fourth cause of action for breach of the implied

covenant of good faith and fair dealing, the Association argued that since this claim is

based on the same allegations upon which Foley's fifth cause of action is based, her

breach of the implied covenant claim fails as a matter of law because her claim for breach

of implied contracts fails as a matter of law.

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 In support of their motion and separate statement of undisputed facts, the

defendants lodged numerous excerpts from the transcripts of the deposition testimony

given by Foley, Grimes, Stewart, and D'Souza, as well as related exhibits (including

Stewart's allegedly libelous letter to Association homeowners dated October 6, 2009) and

the declaration of defense counsel authenticating the various lodged exhibits.

C. Foley's Opposition and Defendants' Reply

Foley opposed the motion, arguing she had presented evidence demonstrating the

existence of genuine issues of material fact and asserting defendants had "ignore[d]"

portions of the transcripts of the deposition testimony given by Cockerham, Stewart,

Messmer, Grimes, and D'Souza, as well as five letters circulated by two "dissenting"

Board members and five letters from "angry" Association homeowners.

With respect to the first cause of action for slander, Foley argued the evidence

showed that the individual defendants "made false and defamatory statements to

[Association] homeowners about [her] compensation and work performance, casting her

as an overpaid and incompetent employee." Specifically, Foley argued there were triable

issues of material fact as to (1) whether Grimes had slandered her by spreading false

rumors that her annual salary, which she asserted was only $67,000, was $96,000; and (2)

whether he slandered her at the 2009 annual meeting of the Association homeowners by

making false statements to the effect that she was overcompensated and could not find a

job elsewhere, and by making false statements about her salary increases and bonuses.

Among other things, Foley cited the deposition testimony of Cockerham, the doorman

supervisor, that Grimes made statements to others that "senior staff," which Foley

9
indicated was a reference to her, "basically were overpaid and they wouldn't be able to

find a job anywhere else in town at how much they were making."

Foley also argued that Grimes's statements were not privileged under Civil Code

section 47 because "[a] prerequisite to this protection is that the statement not be made

with malice," and Grimes's statements "were made with malice because he intentionally

misrepresented Foley's salary increases, bonuses, and compensation package to enhance

his position with the Board." Citing Cockerham's deposition testimony that Grimes told

him after the 2009 annual meeting that Foley "has got another thing [sic] coming" if she

thought she could complain about him, Foley argued a jury could infer malice from this

statement, especially when combined with the evidence she claimed was set forth in

Board member Ramin Samimi's letter to the homeowners showing that Grimes hired

counsel to advise him how to orchestrate firing Foley without the knowledge or approval

of the entire Board.

Relying on deposition testimony that she, Messmer, Stewart, and D'Souza had

given, Foley also argued there was a triable issue of material fact as to whether Messmer

had slandered her by making comments to other homeowners that there were reasons he

could not discuss as to why Foley's employment had been terminated, thereby leading

others to believe Foley had been terminated for cause. She also argued Messmer's

statement was not privileged because he stated in his deposition that, as a Board member,

he was not Foley's employer.

Pointing to Stewart's own deposition testimony, Foley argued that Stewart

conceded he had slandered Foley and that Stewart could not avail himself of the privilege

10
under Civil Code section 47 because the October 6, 2009 letter he sent to homeowners

after Foley's employment was terminated contained statements that Stewart made with

malicious intent, and he could not claim he was Foley's employer.

With respect to the second cause of action for libel, Foley argued that Stewart's

deposition testimony and his letter to homeowners show there was a triable issue of

material fact as to whether the letter was libelous. She argued that Cockerham's

deposition testimony showed that many homeowners received Stewart's letter and

interpreted it to imply that she lacked the necessary job skills, and she was fired for

cause, not for budgetary reasons. Foley repeated her previous argument that Stewart

could not avail himself of the common interest privilege (Civ. Code, § 47).

With respect to the third cause of action for wrongful termination in violation of

public policy based on Labor Code section 6310, Foley argued the evidence showed that

two Board members, Ramin Samimi and Thom Sanders, publicly stated that Foley's

employment was terminated in retaliation for complaining about Grimes's slanderous

comments, the Muller case cited by defendants was inapposite because that case involved

an employee frightened by a customer and Foley never claimed her working conditions

were unsafe because she was "frightened," and the testimony given by the individual

defendants and evidence of complaints by homeowners show her termination was not

based on budgetary reasons because the Association "did not have any budget shortfalls."

Finally, with respect to both the fourth cause of action for breach of the implied

covenant of good faith and fair dealing and the fifth cause of action for breach of an

implied contract, Foley first argued she had presented evidence showing a triable issue of

11
material fact as to whether an implied-in-fact contract existed. Citing her own deposition

testimony, she argued that D'Souza told her on three occasions that her job was safe and

she was not going to be terminated. She also argued that D'Souza's testimony confirmed

that he made those statements on at least one occasion after the April 2009 annual

meeting, and Cockerham's testimony shows that D'Souza told Cockerham and Foley that

their jobs were safe. Citing her own testimony, Foley argued it was undisputed she had

worked for the Association for nearly 15 years, and, with the exception of one year, she

had received a bonus and raise every year. Citing D'Souza's testimony, she also argued

she had regularly received positive performance reviews. As to both claims, she argued

that evidence she had already discussed showed the Association's decision to terminate

her employment was made in retaliation for her complaints about Grimes's slanderous

comments and that the stated budgetary reason for her discharge was "completely

pretextual and false."

In support of her opposition and response to defendants' separate statement of

undisputed facts, Foley lodged numerous excerpts from the transcripts of the deposition

testimony given by herself, Grimes, Messmer, Stewart, D'Souza, and Cockerham, as well

as various other exhibits, including Stewart's allegedly libelous letter to Association

homeowners dated October 6, 2009, and letters written by Board members Ramin

Samimi and Thom Sanders and homeowners Francie Sanders and Diana Brandenburg.

The defendants submitted their reply to Foley's opposition, essentially repeating

the arguments they made in support of their motion.

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 D. Court's Two Sets of Tentative Rulings and Judgment

1. First set of tentative rulings

In mid-January 2011, the court issued its first set of tentative rulings granting

summary judgment in favor of the Association and the individual defendants. Following

the February 4, 2011 hearing on the motion and these tentative rulings, the court took the

matter under submission and thereafter allowed the filing of supplemental briefing by

both parties, as well as numerous sets of evidentiary objections submitted by the

defendants.

2. Second set of tentative rulings on which the judgment is based

In late February 2011, after considering the parties' supplemental briefing, the

court issued its second set of tentative rulings, again granting summary judgment in favor

of the Association and the individual defendants.

a. First cause of action

With respect to the first cause of action for slander, the court found the individual

defendants had met their burden of showing that all of the alleged defamatory statements

were "encompassed within the [Civil Code] section 47[, subdivision (c)] qualified

privilege" because it was "undisputed that all of the statements were transmitted between

homeowners within the development during the course of heated debate regarding the

elimination of Association employees for the stated purpose of reducing the Association's

budget," and it was also undisputed that all of the homeowners were "interested" parties.

Noting that Grimes's statements about pay and bonuses "could be slanderous," the

statement that Foley was "overpaid" constituted "non-actionable opinion." The court also

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tentatively found that although the evidence demonstrated Grimes may have been "upset"

after the annual meeting because Foley lodged a complaint through her attorney, "[t]his

[was] not sufficient to evidence malice," and this fact was "immaterial" because "the

statements were made before [Foley] complained, and in fact were the reason for her

complaint."

Of particular importance to this appeal, citing Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826 (Aguilar), the court then stated:

"Two competing inferences can be formed from the evidence
presented by [Foley]. First, [Grimes] believed the information was
correct and as a result neglected to verify the information via review
of Association records. Second, [Grimes] knew the information was
wrong (or probably wrong), but made the statements in any event in
order to garner support for [Foley's] termination. If a court
determines that all of the evidence presented by the plaintiff, and all
of the inferences drawn from that evidence show and imply
wrongful conduct 'only as likely' as permissible conduct, it must
grant the defendant's motion for summary judgment. [Citation.]
Where competing and equal inferences exist[,] a reasonable trier of
fact could not find for the plaintiff. [Citation.] In this case the
inferences are equally plausible such that [Foley] has not met her
burden of demonstrating malice." (Italics added.)

Stating also that the supplemental evidence presented by Foley "does not compel a

different result," the court found that "[s]peculation by other homeowners does not

constitute evidence of malice." Noting that the extent to which Grimes "prearranged"

Foley's termination was disputed, the court found "this does not evidence malice," and

whether the September 25, 2009 meeting was properly closed to Association members

was "immaterial" because "[t]his is not an action by a homeowner seeking to rescind the

14
vote or alleging a breach of fiduciary duty" and "[w]hether [Grimes] was emotional and

angry at the meeting says nothing about his true motives."

Regarding Foley's slander claim against Messmer, the court found his statement

about his inability to discuss the reason for Foley's termination was ambiguous and

susceptible to more than one meaning and, although there was "some evidence" that his

statement was interpreted by listeners as derogatory in nature, "no special damages ha[d]

been alleged or evidenced: his statement was made after [Foley's] termination."

Referring to Foley's "supplemental submission of evidence," the court stated that "[t]he

homeowners are not competent to provide statements as to [her] inability to secure future

employment"; she "[did] not submit her own declaration to this effect"; and "in fact, the

declarations submitted by [Foley] tend to establish that many of the homeowners would

have provided positive references for [her]." The court also found Foley's claim against

Messmer failed "based on the [Civil Code] section 47[, subdivision (c)] qualified

privilege," and because Foley "fail[ed] to present evidence indicating [Messmer]

harbored malice toward her."

Regarding Foley's slander claim against Stewart, the court found that Stewart's

allegedly defamatory statement that Foley was not at work for six weeks out of each year

was made after she was terminated, and the statement was not defamatory on its face.

Noting that Foley's "supplemental evidence" provided "some evidence" that Stewart's

statement was interpreted by listeners as derogatory in nature, the court found that "no

special damages ha[d] been alleged or evidenced: his statement was made after [Foley's]

termination." The court again found that Foley's supplemental evidence "[did] not

15
establish special damages" because "[t]he homeowners are not competent to provide

statements as to [her] inability to secure future employment"; Foley "[did] not submit her

own declaration to this effect," and "in fact, the declarations submitted by [Foley] tend to

establish that many of the homeowners would have provided positive references for

[her]."

b. Second cause of action

With respect to the second cause of action against Stewart for libel, the court

found that "[m]ost, if not all" of the statements in Stewart's October 6, 2009 letter were

nonactionable opinion, and the statements were not defamatory per se as Stewart "[did]

not state that [Foley was] was incompetent," but rather "implie[d] that she [was] overpaid

for her position" and she "[did] not possess the ideal skill set." The court again found

"there [was] no evidence of special damages given that this letter was transmitted after

[Foley] was terminated," and "[t]here is also no evidence that these statements were

understood by those to whom the letter was published in a derogatory manner." The

court further found that Foley's claim failed "based on the [Civil Code] section 47[,

subdivision (c)] qualified privilege" and because Foley "fail[ed] to present any evidence

indicating malice," noting that "failing to verify this information is not malicious."

c. Third cause of action

With respect to the third cause of action against the Association for wrongful

termination in violation of public policy based on Labor Code section 6310, the court

found this claim failed because (1) as it already found, "defamation did not

occur . . . such that no unsafe work environment could have been created"; and (2) the

16
alleged defamatory statements "do not create 'unsafe working conditions' or constitute

unsafe 'work practices.'" The court noted that this case was analogous to Muller, supra,

61 Cal.App.4th 431. The court also observed that Grimes "did not threaten [Foley] with

physical harm or subject her to emotional abuse or harassment."

d. Fourth and fifth causes of action

With respect to the two remaining causes of action against the Association

only─the fourth cause of action for breach of the implied covenant of good faith and fair

dealing, and the fifth cause of action for breach of an implied contract─the court first

found that, assuming the existence of an implied contract under which Foley could not be

terminated except for good cause, General Manager D'Souza's testimony "establishe[d]

this good cause." The court stated:

"General Manager D'Souza testified that he provided the Board with
three budget reduction alternatives in September, 2009. One of
these alternatives was to create a resident service manager position,
which would eliminate the security supervisor position and combine
the concierge position into the new position. Board member Sandy
Brue made the motion to accept this alternative. [Grimes] seconded
the motion. The Board minutes demonstrate that the motion passed
by a vote of three to two. Brue, Grime, and Messmer voted in the
majority. Mr. D'Souza also states that the idea to combine positions
was his, and that he is 'sure' he presented a similar proposal the year
before."

The court also stated that Foley's position "was eliminated and folded into a new

position for budgetary reasons," and the deposition testimony given by Messmer and

Stewart about the state of the Association's current budget "[did] not help [Foley]"

because "[g]ood cause could exist based in present or future budget concerns." The court

found the letters and e-mail Foley referenced were inadmissible hearsay, and, "in any

17
event, the opinions of the homeowners are not relevant" because, "[a]lthough many of the

homeowners may not like the decision, this does not mean the decision was made in bad

faith," and "there [was] no foundation for their theories as to Grimes'[s] true motives."

The court further found that breach of an implied contract "cannot be established"

because, assuming Cockerham's deposition testimony "establishe[d] that Grimes had an

ulterior motive for [Foley's] termination after receiving the letter from [her] counsel, the

element of causation [was] missing." The court stated "[i]t is undisputed that Grimes was

advocating for the elimination of the concierge position at the April 19, 2009

homeowners' meeting," which "occurred prior to the letter (and was the reason for the

letter)." "More importantly," the court stated, "Grimes'[s] vote to eliminate the position

was meaningless in the absence of a majority vote to eliminate the position," and "there

[was] no evidence that Grimes'[s] motive to retaliate against [Foley] translated into hi[s]

influencing the other board members to vote in favor of eliminating the position."

The court also found that Foley's supplemental evidence "does not save" her fourth

and fifth causes of action because "the opinions of homeowners as to the state of the

budget are immaterial," "there continues to be a lack of evidence of causation," and

"[t]here is no direct or circumstantial evidence demonstrating that Grimes' vote was based

on an ulterior motive, or that he influenced the votes of the other board members as a

result of this ulterior motive."

3. Judgment

Following the March 4, 2011 hearing on defendants' motion and the court's second

set of tentative rulings, the court took the matter under submission. The court thereafter

18
confirmed those tentative rulings, entered an order granting defendants' motion, and

denied Foley's motion for reconsideration.

On June 17, 2011, the court entered judgment in favor of the defendants. Foley's

timely appeal followed.

DISCUSSION

I. GENERAL LEGAL PRINCIPLES AND STANDARD OF REVIEW

"A motion for summary adjudication may be made by itself or as an alternative to

a motion for summary judgment and shall proceed in all procedural respects as a motion

for summary judgment." (Code Civ. Proc., § 437c, subd. (f)(2).) In reviewing an order

granting or denying a motion for summary adjudication, we apply the same standards as

we would apply in reviewing a trial court's order granting or denying a motion for

summary judgment. (See Code Civ. Proc., § 437c, subds. (c) & (f); Certain Underwriters

at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.)

On an appeal from a grant of summary judgment (or summary adjudication), we

independently examine the record, considering all the evidence set forth in the moving

and opposition papers except that to which objections have been made and sustained, to

determine whether a triable issue of material fact exists. (Saelzler v. Advanced Group

400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334

(Guz); Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373,

385.) We review the trial court's ruling, not the court's reasoning. (Zimmerman,

Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1485.) In

performing our de novo review, we view the evidence in a light favorable to the losing

19
party (here, Foley), liberally construing her evidentiary submission while strictly

scrutinizing the prevailing party's (here, defendants') own showing, and resolving any

evidentiary doubts or ambiguities in favor of the losing party. (Saelzler, supra, at pp.

768-769.)

In Aguilar, supra, 25 Cal.4th 826, the California Supreme Court clarified the legal

principles and standards that apply to summary judgment proceedings under Code of

Civil Procedure section 437c. "[T]he party moving for summary judgment bears the

burden of persuasion that there is no triable issue of material fact and that he is entitled to

judgment as a matter of law." (Aguilar, at p. 850, fn. omitted.) A defendant moving for

summary judgment "bears the burden of persuasion that 'one or more elements of' the

'cause of action' in question 'cannot be established,' or that 'there is a complete defense'

thereto." (Ibid.; § 437c, subds. (o)(2).) In such a case, the moving defendant "bears [the]

initial burden of production to make a prima facie showing of the nonexistence of any

triable issue of material fact." (Aguilar, at p. 850.)

If the moving defendant meets this burden of production, the burden of production

shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of

material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) 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." (Ibid., fn. omitted.)

Aguilar further explained that a court "may not 'grant[]' the defendants' motion for

summary judgment 'based on inferences . . . , if contradicted by other inferences or

20
evidence, which raise a triable issue as to any material fact.'" (Aguilar, supra, 25

Cal.4th at p. 856, quoting Code Civ. Proc., § 437c, subd. (c), fn. omitted, italics added.)

In addition, "even though the court may not weigh the plaintiff's evidence or inferences

against the defendants' as though it were sitting as the trier of fact, it must nevertheless

determine what any evidence or inference could show or imply to a reasonable trier of

fact. . . . In so doing, it does not decide on any finding of its own, but simply decides

what finding such a trier of fact could make for itself." (Aguilar, at p. 856, italics added.)

Aguilar also explained, however, that, "if the court determines that all of the

evidence presented by the plaintiff, and all of the inferences drawn therefrom, show and

imply [the ultimate fact] only as likely as [not] or even less likely, it must then grant the

defendants' motion for summary judgment, even apart from any evidence presented by

the defendants or any inferences drawn therefrom, because a reasonable trier of fact

could not find for the plaintiff. Under such circumstances, the [factual] issue is not

triable—that is, it may not be submitted to a trier of fact for determination in favor of

either the plaintiff or the defendants, but must be taken from the trier of fact and resolved

by the court itself in the defendants' favor and against the plaintiff." (Aguilar, supra, 25

Cal.4th at pp. 856-857, fn. omitted, italics added.)

II. ANALYSIS

A. Slander and Libel

Foley first contends the court erred in granting summary judgment in favor of the

individual defendants (Grimes, Messmer, and Stewart) because─with respect to her first

and second causes of action for slander per se and libel, respectively─the evidence

21
demonstrates their statements are provably false, and issues of material fact exist as to

malice. We affirm the grant of summary judgment in favor of the individual defendants.

1. Applicable legal principles

a. Defamation

"Defamation is effected either by libel or slander." (Noel v. River Hills Wilsons,

Inc. (2003) 113 Cal.App.4th 1363, 1368 (Noel), citing Civ. Code, § 44.) As pertinent

here, slander is statutorily defined as a "false and unprivileged" oral communication that

"[t]ends directly to injure [a person] in respect to his [or her] office, profession, trade or

business . . . ." (Civ. Code, § 46, subd. (3); see Noel, at p. 1368.) Libel is defined as a

"false and unprivileged publication by writing . . . which exposes any person to hatred,

contempt, ridicule, or obloquy, or which causes him [or her] to be shunned or avoided, or

which has a tendency to injure him in his [or her] occupation." (Civ. Code, § 45.)

In McGarry v. University of San Diego (2007) 154 Cal.App.4th 97 (McGarry),

this court explained that defamatory statements that "contain[] such a charge directly, and

without the need for explanatory matter, are libelous per se." (Id. at p. 112, citing Civ.

Code, § 45a.3) We further explained that "[a] statement can also be libelous per se if it

contains a charge by implication from the language employed by the speaker and a

listener could understand the defamatory meaning without the necessity of knowing

extrinsic explanatory matter. [Citation.] However, if the listener would not recognize the

3 Civil Code section 45a provides: "A libel which is defamatory of the plaintiff
without the necessity of explanatory matter, such as an inducement, innuendo or other
extrinsic fact, is said to be a libel on its face. . . ."
22
defamatory meaning without 'knowledge of specific facts and circumstances, extrinsic to

the publication, which are not matters of common knowledge rationally attributable to all

reasonable persons' [citation], the matter is deemed defamatory per quod and requires

pleading and proof of special damages." (McGarry, at p. 112; see Civ. Code, § 45a

[providing in part: "Defamatory language not libelous on its face is not actionable unless

the plaintiff alleges and proves that he has suffered special damage as a proximate result

thereof."].)

We further explained in McGarry that "'[t]he sine qua non of recovery for

defamation . . . is the existence of falsehood.' [Citation.] Because the statement must

contain a provable falsehood, courts distinguish between statements of fact and

statements of opinion for purposes of defamation liability. Although statements of fact

may be actionable as libel, statements of opinion are constitutionally protected."

(McGarry, supra, 154 Cal.App.4th at p. 112; accord, Summit Bank v. Rogers (2012) 206

Cal.App.4th 669, 695-696 (Summit Bank).) "To determine whether a statement is

actionable fact or nonactionable opinion, we apply a totality of the circumstances test

pursuant to which we consider both the language of the statement itself and the context in

which it is made." (Summit Bank, at p. 696, citing McGarry, supra, at p. 113.)

b. Conditional common-interest privilege

In Noel, supra, 113 Cal.App.4th 1363, this court explained that Civil Code section

47, subdivision (c) (hereafter Civil Code section 47(c))4 "extends a conditional privilege

4 Civil Code section 47(c) provides in part: "A privileged publication or broadcast
is one made: [¶] . . . [¶] (c) In a communication, without malice, to a person interested
23
against defamatory statements made without malice on subjects of mutual interest."

(Noel, at p. 1368, citing Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1205.) "If the

privilege arises, it is a complete defense." (Noel, at p. 1369.)

We also explained in Noel that the courts in California "have consistently

interpreted [Civil Code] section 47[(c)] to apply in the employment context." (Noel,

supra, 13 Cal.App.4th at p. 1369.) Also, "[i]nsofar as the common-interest privilege is

concerned, malice is not inferred from the communication itself." (Id. at p. 1370, citing

Civ. Code, § 48.5) Furthermore, "'"[t]he malice necessary to defeat a qualified privilege

is 'actual malice' which is established by a showing that the publication was motivated by

hatred or ill will towards the plaintiff or by a showing that the defendant lacked

reasonable grounds for belief in the truth of the publication and therefore acted in

reckless disregard of the plaintiff's rights (citations)."'" (Noel, at p. 1370.)

c. Analysis

i. Grimes

Turning first to Foley's first cause of action for slander per se, which asserts her

sole claim against Grimes, we affirm the court's grant of summary judgment in his favor.

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 subdivision authorizes a current . . . employer, or the
employer's agent, to answer whether or not the employer would rehire a
current . . . employee."

5 Civil Code section 48 provides: "In the case provided for in subdivision (c) of
Section 47, malice is not inferred from the communication."
24
In her complaint Foley alleged that Grimes, as a member of the Board, slandered her at

the April 2009 annual meeting of the Association's homeowners by falsely stating she

was overpaid and the reason she did not leave was that she could not find a job

elsewhere. She also alleged Grimes made additional slanderous comments at other

Association meetings that injured her in her occupation, by falsely stating that she was

earning a base annual salary of $96,000 when she was earning significantly less than that

amount, and that she had received a 10 percent bonus, and that Grimes made these false

statements to cause homeowners to believe she was overpaid and to demand her

resignation.

As shown by Foley's supplemental response to the defendants' joint separate

statement of undisputed facts, it is undisputed that Grimes acted in his capacity as both an

Association homeowner and a member of the Board. When asked during her deposition

to identify the defamatory statements she was alleging Grimes made, Foley testified to

Grimes's statements at the April 2009 annual meeting of the Association's homeowners.

Specifically, she testified that Grimes mentioned her name and said in front of 100

homeowners that "senior staff" were "overpaid," they all got bonuses that were 10

percent of their salaries, they could not get paid elsewhere what the Association was

paying them, and "that's why they don't leave."

As the court properly found, Grimes's alleged statement that Foley was overpaid is

a statement of opinion that is not actionable. (See McGarry, supra, 154 Cal.App.4th at p.

112; Summit Bank, supra, 206 Cal.App.4th at p. 696.) The same is arguably true about

25
the alleged statements that senior staff could not get paid elsewhere what the Association

was paying them, and "that's why they don't leave."

Assuming these alleged statements were statements of fact, all of Grimes's

allegedly defamatory statements fall within the purview of the conditional common-

interest privilege under Civil Code section 47(c), as the court also properly found,

because (1) it is undisputed the statements were made during a discussion about the

Association's budget at the Association's 2009 annual meeting by Grimes who, as an

Association homeowner and Board member, had an interest in that discussion, to a large

body of similarly interested Association homeowners and staff members; and (2) Foley

has failed to show a triable issue of fact as to whether Grimes acted with malice when he

made those statements. With respect to the issue of malice, none of Grimes's alleged

statements can be used to show the existence of a triable issue of fact as to whether

Grimes harbored malice when he spoke. (See Noel, supra, 113 Cal.App.4th at p. 1370

["Insofar as the common-interest privilege is concerned, malice is not inferred from the

communication itself."]; Civ. Code § 48, see fn. 5, ante.) In addition, Foley's evidence

that Grimes may have been upset or angry with her because she lodged a complaint

through her attorney about Grimes's statements is insufficient to show such a triable issue

of fact because those statements were made before Foley lodged her complaint.

Furthermore, as the defendants point out, the Association was statutorily mandated under

Civil Code section 1365.2, subdivision (d)(2) to provide its members with information

about the compensation it was paying to its employees. That subdivision provides in part

that, "[e]xcept as provided by the attorney-client privilege, the association may not

26
withhold or redact information concerning the compensation paid to employees, vendors,

or contractors."6

Furthermore, in granting summary judgment in favor of Grimes, the court found

with respect to the issue of malice that two "competing inferences" could be drawn from

Foley's evidence: (1) Grimes believed the information he communicated about Foley's

compensation was correct, but he neglected to verify the information through a review of

the Association's records; and (2) Grimes knew the information was either wrong or

probably wrong, but made the statements for the purpose of garnering support for Foley's

termination. Citing Aguilar, supra, 25 Cal.4th 826, the court found these inferences were

"equally plausible such that [Foley] has not met her burden of demonstrating malice."

We agree. As already discussed, Aguilar explained that, if the court determines that all of

the evidence presented by the plaintiff, and all of the inferences drawn therefrom, show

that some material fact is "only as likely as [not]," it must grant the defendants' motion

for summary judgment because "a reasonable trier of fact could not find for the plaintiff";

and, thus, "the [factual] issue is not triable" and "must be taken from the trier of fact and

resolved by the court itself in the defendants' favor and against the plaintiff." (Id. at pp.

856-857, fn. omitted.)

Here, after reviewing Foley's voluminous evidence in opposition to the defendants'

motion, we agree with the court's finding that the evidence she has presented, and the

6 Although Civil Code section 1365.2, subdivision (d)(2) also provides that
"[c]ompensation information for individual employees shall be set forth by job
classification or title, not by the employee's name, social security number, or other
personal information," Foley's complaint does not allege a violation of that subdivision.
27
reasonable inferences to be drawn therefrom, show that it is "only as likely as [not]" that

Grimes acted with malice. We thus conclude Foley has failed to show a triable issue of

material fact with respect to her first cause of action for slander against Grimes.

Accordingly, we affirm the court's grant of summary judgment in his favor.

ii. Messmer

Turning again to Foley's first cause of action for slander per se, which also asserts

her sole claim against Messmer, we affirm the court's grant of summary judgment in his

favor. As previously noted, Foley's complaint alleged that Messmer slandered her by (1)

"repeat[ing] Grimes's comments about [her]," and (2) "[a]fter [she] was

fired, . . . mak[ing] comments to other homeowners that there were reasons he could not

discuss as to why [her] employment was terminated, thus leading others to believe [she]

was terminated for cause," when in fact she had not been terminated for cause. In

support of their summary judgment motion, defendants presented Foley's deposition

testimony that, after her employment was terminated, someone─"possibly" Association

homeowners Francie Sanders or Deb Senkier─told her that during a Board meeting,

Messmer "implied to people that I was let go for cause," and he did so by "impl[ying] to

everybody in that room that there were reasons that he could not discuss . . . why [she]

was terminated." In opposition to the motion, Foley presented Messmer's deposition

testimony conceding he told some Association homeowners that the termination of

Foley's position was for consolidation purposes, but told other homeowners there were

reasons he could not discuss as to why her position was terminated. Foley also submitted

Stewart's testimony that he heard Messmer tell other homeowners there were reasons

28
Messmer could not discuss as to why Foley's position was terminated; Senkier's

declaration testimony that she was present at the Association's homeowners meeting

when Messmer made his statements about Foley, and she believed Messmer's comments

interfered with Foley's job search for new employment; Francie Sanders's declaration

testimony that she was also present at the Association homeowners meeting when

Messmer made his comments about Foley, she understood Messmer's comments as being

derogatory in nature and implying that Foley had been fired for cause; plus other

evidence Foley claimed would show Messmer acted with malice because (among other

things) he had participated as a Board member in the decision to fire Foley, and he did

not search for any documents.

Messmer's allegedly defamatory statement was ambiguous at best, and, thus, was

not defamatory on its face. Even though it is undisputed Messmer made the alleged

statement after the Association terminated Foley's employment, we shall assume, without

deciding, that Foley met her burden of presenting evidence of both special damages and

inducement.

We conclude Messmer's allegedly defamatory statement, like Grimes's alleged

statements, falls within the purview of the conditional common-interest privilege under

Civil Code section 47(c), as the court also properly found, because (1) the statement was

made by an Association homeowner and Board member─Messmer, who had an interest

in the Association's budgetary matters, including the consolidation of employment

positions and Foley's discharge─to other similarly interested Association homeowners

and Board members; and (2) Foley has failed to show a triable issue of fact as to whether

29
Messmer acted with malice when he made those statements. Messmer argues "the mere

fact that he would not discuss Foley's termination does not establish malice." We agree.

Messmer's allegedly defamatory statements cannot be used to show the existence of a

triable issue of fact as to whether he harbored malice when he spoke. (See Noel, supra,

113 Cal.App.4th at p. 1370; Civ. Code § 48, see fn. 5, ante.) In support of her contention

there is a triable issue of fact as to malice, Foley cites homeowner Senkier's declaration

testimony that Messmer spoke in an "angry manner" when he made his comment,

However, as the court properly found, "[w]hether [a] defendant shouts or loses his temper

at association meetings is immaterial on the issue of malice."

We thus conclude Foley has failed to show a triable issue of material fact with

respect to her first cause of action for slander against Messmer. Accordingly, we affirm

the court's grant of summary judgment in his favor.

iii. Stewart

We next conclude, for similar reasons, that Foley has failed to show a triable issue

of material fact with respect to her two defamation claims against Stewart: slander per se

(first cause of action) and libel (second cause of action).

In support of the slander claim, as previously noted, Foley's complaint alleged that

Stewart, like Messmer, slandered her by "repeat[ing] Grimes's comments about [her]."

The complaint also alleged Stewart slandered her by stating she "wasn't even at work six

weeks a year." In support of her libel claim, Foley's complaint alleged that, after her

employment was terminated, Stewart sent to other homeowners a letter stating that

Foley's position "required duties and talents beyond those that our previous concierge

30
[Foley] demonstrated,"and that those statements "led others to believe [she] did not have

the job skills necessary to perform her job and that she had been terminated for cause."

In opposition to Stewart's summary judgment motion, Foley presented in support

of her slander claim Stewart's deposition testimony that after the Association terminated

Foley's employment on September 24, 2009, he told Association homeowners during a

conversation about Foley's termination as an Association employee, that she was not at

work six weeks every year, and that Stewart did not do anything to verify whether Foley

had six weeks off every year. She also presented D'Souza's deposition testimony that

Foley had three weeks of vacation every year. The transcript of Stewart's deposition

shows he also testified that, when he made the statement in question, he "was stating

what [he] thought at the time was a fact" he had heard from homeowners.

In support of her libel claim, Foley submitted Stewart's letter, which is dated

October 6, 2009, and is addressed to "all [Association] Homeowners." On its face, the

letter shows Foley has selectively quoted only a portion of the paragraph in which the

allegedly libelous statement appears. That paragraph states in full:

"The position requires duties and talents beyond those our previous
concierge demonstrated. For example, it would be beneficial if they
were experienced in the creating and editing of a periodic newsletter
and the monitoring of our website. Our web site needs to be
updated, user friendly, meaningful, and of value to homeowners or it
will never be utilized." (Italics added.)

Foley also submitted Stewart's testimony that he had not asked about Foley's job

responsibilities, was unfamiliar with her background and experience, and had no personal

knowledge about her salary as the Association's concierge. She also presented

31
Association homeowner Senkier's declaration testimony that Senkier received a copy of

Stewart's letter. She believed it was derogatory in nature and implied Foley had been

fired for cause and she believed Messmer's comments interfered with Foley's job search

for new employment. Foley also submitted Association homeowner Francie Sanders's

declaration testimony that Sanders also received a copy of Stewart's letter and she

believed it implied Foley had been fired for cause.

Stewart's allegedly slanderous statement that Foley was not at work six weeks

every year and his written comment that "[t]he position requires duties and talents beyond

those our previous concierge demonstrated" were ambiguous and, thus, not defamatory

on its face.

We conclude Stewart's written comment on its face shows it is a statement of

opinion that is not actionable. To the extent the evidence show Stewart repeated Grimes's

statement that Foley was overpaid, that statement is also a statement of opinion that is not

actionable. Also, as it is undisputed Stewart published his letter after the Association

terminated Foley's employment and the supplemental declarations of the homeowners

regarding alleged interference with Foley's job search are conclusory and speculative at

best, Foley has failed to present evidence showing a triable issue of fact as to whether she

suffered special damages.

Even if we were to assume Foley met her burden of presenting evidence of both

special damages and inducement, we conclude all of Stewart's statements fall within the

purview of the conditional common-interest privilege under Civil Code section 47(c)

because (1) the statements were made by an Association homeowner─Stewart, who had

32
an interest in the Association's budgetary matters, including the consolidation of

employment positions and Foley's discharge─to other similarly interested Association

homeowners; and (2) Foley has failed to show a triable issue of fact as to whether Stewart

acted with malice when he made those statements. We thus conclude Foley has failed to

show a triable issue of material fact with respect to her slander and libel causes of action

against Stewart. Accordingly, we affirm the court's grant of summary judgment in his

favor.

B. Wrongful Termination in Violation of Public Policy

Foley also contends the court erred in granting summary judgment in favor of the

Association because, with respect to her third cause of action against the Association for

wrongful termination in violation of public policy, issues of material fact exist as to

whether retaliation was the true reason for the termination of her employment, and thus

whether the Association's proffered budgetary reason was a mere pretext. This

contention is unavailing.

"'[W]hile an at-will employee may be terminated for no reason, or for an arbitrary

or irrational reason, there can be no right to terminate for an unlawful reason or a purpose

that contravenes fundamental public policy.'" (Silo v. CHW Medical Foundation (2002)

27 Cal.4th 1097, 1104 (Silo), quoting Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083,

1094 (Gantt), overruled on another point in Green v. Ralee Engineering Co. (1998) 19

Cal.4th 66, 80, fn. 6.) Typically, the tort of wrongful termination in violation of public

policy arises in circumstances where the employer retaliates against an employee who (1)

refused to violate a statute, (2) performed a statutory obligation, (3) exercised a statutory

33
right or privilege or (4) reported an alleged violation of a statute of public importance.

(Gantt, at pp. 1090-1091.) "[T]his public policy exception to the at-will employment rule

must be based on policies 'carefully tethered to fundamental policies that are delineated in

constitutional or statutory provisions . . . .'" (Silo, supra, at p. 1104, quoting Gantt, at p.

1095.)

Here, in seeking reversal of the portion of the judgment summarily adjudicating

the third cause of action in favor of the Association, Foley contends her discharge

violated the public policy delineated in Labor Code section 6310 (hereafter section 6310),

which (she asserts) "prohibits employers from subjecting employees to unsafe and

unhealthy working conditions," and "protects [her] from being fired for complaining

about Grimes's slanderous remarks."

Labor Code section 6310, subdivision (b) (hereafter Labor Code section 6310(b))

of the California Occupational Safety and Health Act (Cal-OSHA) provides:

"Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in
terms and conditions of employment by his or her employer because
the employee has made a bona fide oral or written complaint
to . . . his or her employer . . . of unsafe working conditions, or work
practices, . . . shall be entitled to reinstatement and reimbursement
for lost wages and work benefits caused by the acts of the
employer." (Italics added; see also Daly v. Exxon Corp. (1997) 55
Cal.App.4th 39, 43 (Daly).)

Labor Code section 6310(b) "permits an action for damages if the employee is

discharged, threatened with discharge, or discriminated against by his or her employer

because of the employee's complaints about unsafe work conditions." (Daly, supra, 55

Cal.App.4th at p. 43, italics added.) As this court explained in Muller, supra, 61

34
Cal.App.4th 431, on which the court relied in granting summary judgment in favor of the

Association, Labor Code section 6310(b) delineates a public policy that "promot[es]

safety in the workplace and prohibit[s] employers from retaliating against employees who

complain of unsafe working conditions." (Muller, at p. 450.)

We conclude the Association has met its burden of demonstrating there is no merit

to Foley's claim that the Association violated the public policy delineated in Labor Code

section 6310(b) by discharging her in retaliation for her complaint about Grimes's

allegedly slanderous remarks at the Association's April 2009 annual meeting because

there is no evidence in the record that Foley was subjected to "unsafe working conditions

[or] work practices" within the meaning of Labor Code section 6310(b). Foley cites no

persuasive authority, and we are aware of none, that the making of alleged defamatory

statements in the workplace constitutes an "unsafe" working condition or work practice

within the purview of that section.

The Daly case illustrates the kind of unsafe working condition or work practice

that will support a cause of action for wrongful termination in violation of public policy

under Labor Code section 6310(b). There, the plaintiff employee complained about Cal-

OSHA violations and told her supervisors that a subcontractor was not providing for the

safety of its employees. (Daly, supra, 55 Cal.App.4th at p. 42.) After the subcontractor

asked the plaintiff's employer to terminate her employment, the employer did not renew

her employment contract, and the plaintiff sued her employer for wrongful termination in

violation of public policy. (Ibid.) Reversing the judgment of dismissal entered after the

trial court sustained the employer's demurrer without leave to amend, the Daly court

35
concluded that "the complaint can be amended to state a cause of action under [Labor

Code] section 6310[(b)]," stating that "an employee in [plaintiff's] situation should not be

singled out for disparate treatment because of [her] complaints about unsafe work

conditions." (Daly, at. p. 44.)

This court's decision in Muller, supra, 61 Cal.App.4th 431, illustrates the type of

working condition that will not support a cause of action for wrongful termination in

violation of public policy under Labor Code section 6310(b). There, the plaintiff─an

insurance claims adjuster who received a series of angry and threatening telephone calls

at work from a customer's son who berated and shouted obscenities at her, became

frightened, and was discharged after she communicated to her employer specific security

measures she wanted her employer to implement to accommodate her fear for her safety

in the workplace. (Id. at pp. 436-437.) The plaintiff brought a claim against her

employer for wrongful termination in violation of public policy, and the trial court

granted summary judgment in favor of the employer. (Id. at p. 435.) This court affirmed,

concluding that "[t]he voicing of a fear about one's safety in the workplace does not

necessarily constitute a complaint about unsafe working conditions under [Labor Code

section 6310(b)]." (Id. at pp. 451-452.)

Here, the Association persuasively argues that the allegedly defamatory comments

that Grimes, Messmer, and Stewart made "do not provide the basis for an unsafe

workplace or other 'safety' violation[] as contemplated by [Labor Code] section

6310[(b)]"; and that "[t]his is especially true of [Messmer] and [Stewart] since their

alleged comments occurred after Foley's termination." We conclude the making of

36
defamatory statements in the workplace does not constitute an "unsafe" working

condition or work practice within the purview of Labor Code section 6310(b) of Cal-

OSHA. Thus, we also conclude Foley's evidence that Grimes, Messmer, and Stewart

made allegedly defamatory statements about her during and after the 2009 annual

meeting is not evidence that her workplace was actually unsafe within the meaning of

Labor Code section 6310(b). Accordingly, as Foley has failed to show a triable issue of

fact as to whether the Association terminated her employment for complaining about

unsafe working conditions in violation of Labor Code section 6310(b), we affirm the

portion of the judgment summarily adjudicating Foley's third cause of action in favor of

the Association.

C. Breach of Implied Contract and the Implied Covenant of Good Faith and Fair
Dealing

Last, Foley contends the court erred in granting summary judgment in favor of the

Association because, with respect to her claims for breach of implied contract (fifth cause

of action) and breach of the implied covenant of good faith and fair dealing (fourth cause

of action) which are based upon the same factual allegations, the evidence establishes the

existence of an implied contract, and issues of material fact exist as to whether the

Association acted in bad faith by retaliating against her. We conclude these contentions

are unavailing.

1. Applicable legal principles

"An employment, having no specified term, may be terminated at the will of either

party on notice to the other." (Lab. Code, § 2922.) At-will employment may be

37
terminated by either party at any time without cause, for any or no reason, and it is not

subject to any specified procedure except the statutory requirement of notice. (Guz,

supra, 24 Cal.4th at p. 335.) Where the parties have made "no express oral or written

agreement specifying the length of employment or the grounds for termination," there is a

statutory presumption that the employment was at will in nature. (Foley v. Interactive

Data Corp. (1988) 47 Cal.3d 654, 677; Lab. Code, § 2922; see also Haycock v. Hughes

Aircraft Co. (1994) 22 Cal.App.4th 1473, 1488.)

This presumption of at-will employment may be rebutted if one party can show

the parties expressly or implicitly agreed to depart from the at-will status. (Tomlinson v.

Qualcomm, Inc. (2002) 97 Cal.App.4th 934, 943.) An implied-in-fact agreement of this

type arises from the parties' conduct evidencing an actual mutual intent to create such a

contractual agreement, that is, not to terminate except for good cause. (Guz, supra, 24

Cal.4th at p. 336.) "'[T]he totality of the circumstances' must be examined to determine

whether the parties' conduct, considered in the context of surrounding circumstances,

gave rise to an implied-in-fact contract limiting the employer's termination rights." (Id. at

p. 337.) The courts take into consideration the entire relationship of the parties, which

includes the following factors, as relevant here: an employee manual; online, accessible

personnel policies and practices; longevity of service; any employer-sanctioned

assurances of continued employment; and communications from or conduct of the

employer approving of the employee's work, such as promotions, raises, bonuses, or

positive performance reviews. (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p.

680; Haycock v. Hughes Aircraft Co., supra, 22 Cal.App.4th at p. 1488.) Longevity of

38
service alone, even with evidence of employer approval of the employee's work, does not

suffice to form an implied-in-fact contract because those circumstances may be consistent

with at-will employment. (Guz, supra, 24 Cal.4th at pp. 341-342.) "The issue is whether

the employer's words or conduct, on which an employee reasonably relied, gave rise to

that specific understanding." (Id. at p. 342, italics omitted.)

2. Analysis

In its motion for summary judgment, the Association argued with respect to the

fifth cause of action that even if the alleged implied contract were assumed to exist, Foley

could not meet her burden of showing the Association's termination of her employment

was "wrongful" because the Association "ha[d] articulated a valid, good cause reason for

[her] termination," and "[t]he termination of employment by way of the elimination of a

position due to economic constraints has long constituted a legitimate, good cause reason

under California law for an employee's termination."

Foley's deposition testimony shows it is undisputed she did not have a written

employment contract during the time the Association employed her. In support of her

claim that she and the Association had entered into an implied-in-fact agreement that she

could not be terminated except for good cause, Foley relies on her deposition testimony

showing she had worked for the Association for nearly 15 years; with the exception of

one year, she had received a bonus and raise every year; and D'Souza assured her on

three occasions that her job was safe. Citing D'Souza's deposition testimony, she also

asserts D'Souza "confirmed that at least one of those verbal assurances that took place

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after the April 16, 2009 annual meeting." She also maintains that Cockerham's

deposition testimony confirmed her own deposition testimony.

We assume, without deciding, that Foley has met her burden of showing the

existence of a triable issue fact as to whether she and the Association had entered into an

implied-in-fact agreement that she could not terminated except for good cause.

We conclude the Association has met its burden of showing it had good cause to

terminate Foley's employment, and Foley has not met her burden of showing a triable

issue of fact as to whether the Association breached either the assumed implied-in-fact

agreement or the implied covenant of implied covenant of good faith and fair dealing by

retaliating against her for complaining about Grimes's comments at the April 2009 annual

meeting. It is undisputed that the minutes of the Board's September 24, 2009 executive

session establish that the five Board members present at that meeting were Grimes,

Messmer, Sandy Brue, Ramin Samimi, and Thom Sanders. It also establishes that,

during that session, the members of the Board and General Manager D'Souza, who was

also present, discussed "in detail" the Association's "[s]taffing levels for the draft 2010

budget," as well as "options that were presented by [D'Souza] to reorganize existing staff

as a possible alternative for [the] FY-2010 Operating Budget." The minutes further

establish that Grimes, Messmer and Brue voted to approve a "[m]otion to reorganize the

staffing at the [Association] to eliminate the Concierge and Security Supervisor position

and create a new position to provide resident services job scope," and Sanders and

Samimi voted in opposition to the motion.

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 D'Souza's deposition testimony establishes good cause for the termination of Foley

employment as the concierge because, as the court found, it establishes "[her] position

was eliminated and folded into a new position for budgetary reasons." As the

Association argued to the court in support of its motion, D'Souza testified that he had

discussed eliminating Foley's position a year before the Board's September 24, 2009

executive session as part of previous budget discussions. Specifically, Foley's attorney

asked D'Souza, "When was the idea to eliminate [Foley's] position—when did that idea

first come about?" D'Souza replied, "It could have been even a year prior to that, you

know." The following exchange then occurred:

"[Foley's counsel]: So this was a discussion that you personally had
with the board of directors?

"[D'Souza]: If I were to go back to previous budget discussions, I'm
sure there was a similar proposal in the previous years' discussion on
ideas. That—that combining of positions and efficiencies for the
[Association] is part of my responsibility during the budgeting
process. So that idea could have come up, but [was] not presented,
or it could have been presented in the previous budget discussions.

"[Foley's counsel]: And whose idea was it?
"[D'Souza]: That's mine."

In response, Foley submitted evidence showing (among other things) that Board

members Samimi and Sanders questioned the decision to eliminate the concierge

position, and Sanders circulated a letter stating he was resigning and Grimes had an

"agenda" that was not in the best interests of the Association. Foley also submitted the

deposition testimony of Samimi that a discussion of budgetary issues was to be open to

all homeowners, and, thus, a reasonable jury could infer that the decision to terminate her

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position could not have been for budgetary reasons since the September 2009 executive

session was not open to Association members.

We agree with the court's finding that, even if Cockerham's testimony─that

Grimes said Foley "had another thing [sic] coming" if she thought she could complain

about him or try to sue him─establishes that Grimes had an ulterior motive for the

termination of her position after he received the letter from Foley's counsel, the element

of causation is "missing" because it is undisputed Grimes was advocating for the

elimination of the concierge position before he received the letter from Foley's counsel,

and (as shown by the minutes of the September 2009 executive session) Grimes's vote

was only one of three that approved the motion to reorganize the Association's staffing to

eliminate the concierge and security supervisor position and create a new position.

For all of the foregoing reasons, we conclude Foley's contention that issues of

material fact exist as to whether the Association acted in bad faith by retaliating against

her, is unavailing. Accordingly, we affirm the court's grant of summary judgment in

favor of the Association.

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 DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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