Filed 12/1/15 Juarez v. D ish Network CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

OSCAR JUAREZ et al.,

Plaintiff s and Respondent s ,

v

.
DISH NETWORK CALIFORNIA SERVICE CORPORATION et al.
, Defendants and Appellants. B256235
(Los Angeles County Super. Ct. No. BC478065 )

APPEAL from a judgment of the Superior Court of Los Angeles County,
Abraham Khan and Victor E. Chavez, Judge s

. Reversed with directions.
Daniel M. Graham for Plaintiff s and Respondent s

. Littler Mendelson P.C. , Marlene S. Muraco, Neda N. Dal Cielo, and Elisa Nadeau for Defendants and Appellants

.

_________________________2

Plaintiff Oscar Juarez (Juarez), a form er employee of d efendant Dish Network LLC (Dish)
, was terminated after a customer accused him of stealing a piece of jewelry. Dish investigated
, and although it could not determine whether Juarez took the j ewelry, it
concluded that the “ conservative thing to do is to separate [Juarez’s] employment .” Juarez sued for wrongful termination, breach of contract, and defamation. The

court granted summary adjudication for Dish on the wrongful termination and breach of contract claims, but allowed a jury to decid e Juarez’s claim that he had been defamed by Dish’s statements that his version of events “appeared to be less than credible” because
he had “not be[en] forthcoming” after the theft allegation. The jury found Dish liable for
defamation and awarded Juarez past economic loss es of $258, 605.
We reverse. An essential element of a cause of action for defamation is “ ‘the
existence of falsehood ’ ” ( McGarry v. University of San Diego ( 2007) 154 Cal.App.4th 97, 112 ( McGarry ) )

— i.e., a provably false assertion of f act ( Gallagher v. Connell (2 004) 123 Cal.App.4th 1260, 1270 ). The statements on which Juarez relies

— that he appeared “less than credible” and “not . . . forthcoming”

— are subjective judgment s, not assertions
of fact. Accordingly, because Juarez failed to present evidence of an essential element of his defamation claim, the judgment must be reversed

.

FACTUAL AND PROCEDURAL BACKGROUND 1

I.
The Parties Dish is a provider of satellite

- based television. From 2004 to 2011, Juarez worked
for Dish as a “field se rvice specialist ,” also referred to as an “installer” or “technician

. ”
In this capacity, Juarez was responsible for installing, upgrading, and repairing Dish
satellite television equipment in customers’ homes.

1 The following factual discussion is drawn from the testimony at trial.3 II. A Customer Accuses Juarez of Theft;
Afte r Investigating, Dish Terminates Juarez On July 19, 2011, Juarez installed equipment at a customer’s residence in Wilmington, California. Sometime thereafter , the customer contacted Dish and r eport ed that a ring had been stolen from her during the insta llation. The complaint was received on August 2, 2011 by Damon Candelaria, a member of Dish’s “Resolution Team,” the group responsible for receiving customer complaints and damage claims.
Candelaria provided notice of the theft allegation to Carlos Valad ez, the
i nstallation m anager of the Hawthorne office where Juarez worked, and asked that the allegation be investigated internally. Valadez forwarded t he request to Jill Yoshimi (Regional H uman Resources Manager), F rank Sandoval ( Ge neral Manager of the
Ha wthorne o ffice ) , and Mike Barthelme ( Regional Operations Manager )

. Yoshimi called Juarez on August 2 , 2011 , and told him she had some questions
about an install ation

. She told him the customer’s name and address, the city where the

customer lived , the da te of the installation, and the kind of equipment Juarez had installed, to “try [] to refresh his memory.” Yoshimi testified that she repeated the same information about five times, and each time Juarez said he did not recall the job or the
customer. Acco rding to Yoshimi, Juarez did not recall anything about the job or the
customer until she re vealed the allegation of theft. Immediately thereafter, Juarez “then
recalled a lot of details about the customer. And he even mentioned that he recalled there

was a laptop in the customer’s living room.” Based on Juarez’s response, Yoshimi formed the impression that Juarez had not been forthcoming

. However, she “couldn’t tell
if he [took] the ring.”
Juarez had a somewhat different recollection of his conversatio n with Yoshimi. He agreed that she told him the customer’s name, address, and phone number, as well as
the kinds of receivers he had installed in the customer’s home . Yoshimi asked Juarez why he could not recall the job or customer, and he said he did 10 to 15 jobs per week, and Yoshimi was asking him about an installation he had done three weeks earlier.4

Yoshimi repeated the customer’s information for about 20 minutes, and then told Juarez
that the reason she was calling was that the customer had accuse d him of stealing jewelry from her home. Juarez said he would never steal anything from anyone’s home. Yoshimi told him that due to the allegation, Dish would have to put him on administrative suspension. About two minutes later, Juarez finally recalled the customer
and described her and the home to Yoshimi. Yoshimi also spoke with the customer about the theft allegation. The customer said she looked for the ring immediately after the install ation but could not find it. She described the ring as a cat ’s eye ring with a small diamond in a gold setting. The customer said she called Dish the day after the installation and was told to report the theft to “FHTM Fortune High Tech Marketing.” She did so, but never received a call back;
she therefore contact ed Dish again and spoke with someone in the Corporate Field Resolutions department. Y oshimi testified that she found the customer to be credible
based on her demeanor and because she did not ask for anything from Dish other than the ring back. On August 5, 2011, Yoshimi received the results of a background check of Juarez. He had no previous disciplinary action involving theft. On August 8, 2011, Yoshimi sent an email to Jim Hankins ( Director of Compliance and Ethics ) , Keri Francavilla ( an investigator with Compliance and Ethics ) , Deborah Cooper ( Director of Human Resources ) , Ron Grady ( Vice President, Western Region ) , Atul Raj ( R egional D irector for the Southwest R egion) , Mike Barthelme, and Frank Sandoval regarding her investigation of Juarez. In rele vant part, the email said, “On Tuesday, August 2, Jill Yoshimi interviewed Oscar Juarez. When Jill asked about the details of the install, Oscar did not recall the customer or anything about the
installation . Jill continued to give Oscar all the informat ion about the installation such as the job type, receivers, address, and how long he took on the job. It wasn’t until Jill told Oscar that the customer is making allegations about missing jewelry he was then able to remember that specific job. Oscar deni ed taking jewelry from the customer. He did not see anything of value at the customer’s house other than a laptop in the living room. . . .5

[¶] On August 2 & 3, Jill was able to get in contact with customer, [name redacted].
Ms. [] alleged that our tec hnician took her ring; description of the ring, Cats Eye stone with a small diamond on top in a gold setting. The ring has been in the family for years and it was her great grandmother’s. She states that the ring was in the master bedroom on
a dresser on top of a glass piece. Ms. [] looked for the ring after the installation was completed and called DISH the following day to report it missing.” On August 10, 2011, Yoshimi participated in a conference call with Ron Grady, Atul Raj, Mike Barthelme, and Ke ri Francavilla. Yoshimi related the customer’s theft allegation, her conversation with Juarez, and her impression that Juarez had not been forthcoming. She did not say that she had concluded that Juarez had stolen the ring.
Instead , she said her investi gation was inconclusive: “We [ couldn’t determine ] if [ he ] did
or did not take the ring.” Based on Yoshim i ’s investigation, Raj and Barthelme recommended reinstating Juarez “because he has no previous issues with customer

com plaints or allegations of thef t. ” Grady recommended terminating Juarez “based on the technician’s statement by not providing Jill any of the details until revealing the allegations.” No one on the conference call expressed the opinion that Juarez had stolen the ring. However, everyo ne on the call agreed that Juarez had violated the company’s investigations policy. On August 13, 2011, Keri Francavilla sent an email to Erik Carlson (E xecutive
V ice Pr esident , Dish Network ) and Stephen Wood (E xecutive V ice P resident, H uman R esources) , w ith copies to Hankins, Cooper, Yoshimi, Raj, Barthelme, and Grady, which said as follows: “The team has looked into the allegation of theft of a ring by our technician. The allegation is inconclusive and the team is split on the recommendation s

. [¶] Im portant facts to consider:

“

— We cannot say if the tech did or did not take the ring

.

“

— We believe the customer[’]s version of events and details are credible.

“

— The technician appears a little less credible in that he was only able to recall
the details of this particular job after he was told there was an allegation of theft of jewelry.6

“

— No police report was filed.

“

— Background is clear.

“

— Tech[] is a long term employee with relatively good performance. [¶]
“Ron [Grady] feels based on the intervie w the tech[’]s credibility is somewhat
lower and we should term. [¶] “Atul [Raj] and Mike [Barthelme] would prefer to retain the tech based on what they know of the individual and his performance and do not feel there is enough to support the allegation of theft. [¶] “Please provide your thoughts on this one or advise if there is any other information or clarification you need.” Stephen Wood replied by email : “ In these ‘split’ cases

– I go with the highest ranking person’s recommendation.”
The same d ay, Deborah Cooper emailed Wood, Francavilla, and Hankins, as follows: “Ron and I talked in detail about this case last week. It truly is one where we don’t know what happened. The only thing that stands out is that the tech had no
recollection of the c ustomer or the job until Jill told him about the allegation of the theft of the ring. Then the tech remembered the job and [ the ] customer, stat [ ing ] that there was a laptop but there was no jewelry. It struck us as odd that the ring triggered his memory but then he claimed he didn’t see a ring. [¶] Therefore, although we recognize we might have this one wrong, the conservative thing to do is to separate employment [ , ] which is what Ron and I recommend.” Erik Carlson responded: “I will support Ron on th is . . . and agree with Stephen’s view on split cases.” On August 26, 2011, Dish terminated Juarez’s employment. During the exit interview, Yoshimi reviewed with Juarez a termination memo, which said as follows: “On August 2, 2011, a customer contacted DISH Network with an allegation of theft of jewelry from the customer’s home involving Mr. Juarez. An investigation was conducted regarding the allegation. [¶] Per the employee handbook on page 15, DISH Network has the right, at any time, to investigate matters involving suspected or alleged violations of7

DISH Network policies, practices, expectations, any applicable law or any other behavior deemed relevant to employment with DISH Network. You are expected to cooperate fully with DISH Network investiga tions. You are expected to maintain confidentiality and answer questions truthfully, completely, and to the best of your ability. [¶] We cannot determine if Mr. Juarez took the customer’s jewelry, however, his version of the events appears to be less th an credible by not being forthcoming during his interview. The decision has been made to terminate his employment effective August 26, 2011 for Policy Violation.” Juarez testified that during the August 26 , 2011 interview, Yoshimi told him that
she felt he had not been truthful with her during their original phone call on August 2
, 2011

. He said, however, that neither Yoshimi nor anyone else at Dish ever accused him of stealing. Following his termination, Juarez sent a letter to Erik Carlson asking t o b e reinstated. Among other things, Juarez said in the letter that the reason for his termination “was not the outcome of the theft [ sic ] but the fact that when I had the initial phone call with Jill [Yoshimi] I was ‘less than credible . . . and forthcoming during [my]
interview.’ [¶]

. . . I feel that this decision was unjust and uncalled for taking into account my work record, ethics, and time with the company.”
III. Juarez’s Attempts to Find New Employment
It was undisputed that Dish had a policy not to “provide performance

- based references for current or previous employees,” but only “to verify dates of employment, start date, end date and job title.” It was also undisputed that consistent with that policy, Dish did not publish any information about Juarez’s termination to anyone outside the

company

. However, Juarez testified that when asked during job interviews with prospective employers why he was no longer working for Dish, “I told them, well
, there was an incident where a customer . . . alleged ly said I stole something; and my HR felt like I was lying to her and she let me go.” He said he made similar disclosures to
members of his family and to several friends when he asked them if their employers were8

hiring. He also submitted a written job a pplication under penalty of perjury in which he stated that he left Dish because “there was an accusation but nothing was ever proven, so both sides decided to go their separate ways.” Juarez said that statement was
“somewhat” true. Juarez ultimately got a job in May 2013 working with adults with disabilities. In July 2013, he was offered and accepted a job with a casino.
I V

. The Present Action ; Dish’s Motion for Summary Judgment or Summary Adjudication
Juarez and his wife, Martha Juarez, filed the pre sent action on January 31, 2012
, against six Dish entities: Dish Network LLC, Dish Network Corporation, Dish Network California Service Corporation, EchoStar Satellite Services LLC, EchoStar Satellite Corporation, and EchoStar Corporation

. 2 Juarez allege d four causes of action: (1) discharge in violation of public policy; (2) breach of implied

- in

- fact contract; (3) defamation; and (4) breach of implied covenant of good faith and fair dealing. Martha Juarez alleged an additional cause of action for loss of consortium. In July 2013, Dish moved for summary judgment or, in the alternative, for summary adjudication of each of Juarez’s causes of action. On October 15, 2013, the trial court denied the motion for summary ju dgment, but granted summary adjudicat ion
of the causes of action for breach of implied

- in

- fact contract, breach of implied covenant of good faith and fair dealing, and discharge in violation of public policy. The court denied summary adjudication as to defamation.

2 Throughout this opinion, we refer to the various Dish entities collectively as “Dish.”9 V

. Trial and Judgment
The case went to trial on the single remaining cause of action for defamation. Plaintiff claimed he had been defamed in two different ways: by the internal discussions of the theft investigation within Dish, and because he was compelled to “republish” to pot ential employers the fact that he had been accused of theft and found by the company not to have been credible. His counsel argued that these discussions and compelled republications were assertions of fact, not opinion: “There’s no opinion here. These are facts. He was less than credible, according to Dish. He didn’t completely cooperate. He
was untruthful ; i.e., he’s a liar and more or less a thief. I mean, that’s the reasonable interpretation of all these accusations. And they’re all based on the employee handbook, which you’re going to have in evidence . . . . [¶] What have they proven? What evidence have they submitted to you that he didn’t cooperate, that he was untruthful, that he was less than credible? These are not opinions, ladies and gentlemen. These are statements of fact which must be communicated to future employers.” Dish’s counsel argued to the jury that the only people with whom Dish discussed the investigation of the theft allegations were Dish employees, that Juarez was under no obligation to “republish” the allegedly defamatory statements, and that all of the alleged defamatory statements were opinion, not fact. 3 Following deliberations, the jury returned the following special verdict: Question No. 1: Did Juarez prove that it is more likely true than not true that any agent or employee of Dish made one or more of the following statements to Juarez:

(1) “ that ‘[Plaintiff’s] version of the events appeared to be less than credible by not being f

orthcoming during his interv iew’; OR (2) “ that ‘Oscar Juarez did not cooperate fully with DISH’S investigator regarding an allegation of theft of jewelry fr om a customer’s home’; OR

3 At the close of evidence, Dish made a motion for nonsuit as to a variety of issues. The trial court granted a nonsuit as to (1) punitive damages and (2) Juarez’s claim that Dish “made a statement that Mr. Juarez was involved in a theft of jewelry.”10 (3) “ that ‘Oscar Juarez did not answer questions truthfully regarding an allegation of theft of je welry from a customer’s home’; OR

(4) “that ‘Oscar Juarez did not answer questions completely regarding an allegation of theft of jewelry from a customer’s home ’; OR

(5) “ that ‘Oscar Juarez did not answer questions to the best of his ability regarding an allegation of theft of jewelry from a customer’s home

. ’ ”

Answer: Yes. Question No. 1(A): Please identify which of the statements listed above plaintiff proved were made to him . Answer : 1, 2, 3, 4, 5

. Question No. 2: Did Juarez prove that it is more likely true than not true that one
or more of the statements you identified in response to Question 1(A) is a statement of
fact and not a statement of opinion? Answer: Yes. Question No. 2(A): Please identify which of the statements listed above p laintiff proved was a statement of fact . Answer : 1, 2, 3, 4, 5

. Question No. 3: Was any statement that you identified in response to Question No. 2(A), above, communicated [by DISH] to someone who was NOT an “ interested party ” ? Answer: Yes. Questi on No. 3(A): Please identify which of the statements listed above was
communicated to someone wh o was not an “ interested party

. ” Answer : 1, 2, 3, 4, 5

. Question No. 4: Did Juarez prove that it is more likely true than not true that the individual(s) w ho made the statement (s) that you identified in response to Question 3A above, made that statement with “actual malice”? Answer: Yes. Question No. 4(A): Please identify which of the statements listed above were made with “actual malice”? Answer: 1, 2 , 3, 4, 5

. Question No. 5: Did Juarez prove that it is more likely true than not true, that he was under strong pressure to communicate one or more of the statements that you identified in response to Question 4A to any prospective employer? Answer: Ye s. Question No. 5(A): Please identify which of the statements listed above plaintiff was under a strong pressure to communicate to a prospective employer? Answer: 1, 2, 4

.11

Question No. 6: Did Juarez establish that it is more likely true than not true that when one or more of the statements identified in response to Question 5(A) was made, the person who made the statement would have known that Juarez would be under strong pressure to communicate the statement to a prospective employer? Answer: Yes. Question No. 6(A): Please identify which of the statements listed above plaintiff proved the person who made the statements should have known Juarez would be under a strong pressure to communicate to a prospective employer? Answer: 1, 2, 4

. Question N o. 7: Did Juarez prove that it is more likely true than not true that he communicated one or more of the statements you identified in response to Question 6A to any prospective employer? A nswer: Yes. Question No. 7(A): Please identify which of the sta tements listed above plaintiff communicated to a prospective employer? Answer: 1, 2, 4. Question No. 7B: Please identify the date(s) that Plaintiff proved he made the

stateme nts to a prospective employer. Answer: March 2013

. Question No. 8: Were al l the statements you identified in response to 7A substantially true? Answer: No. Question No. 8A: Which statements identified above were not substantially true?
Answer: 1, 2, 4

. Question No. 9: Did Juarez prove that it is more likely true than not true that any person to whom one or more of the statements that you identified in response to Question 8(A) was communicated reasonably understood that it tended to injure Juarez in his particular occupation as a Satellite Technician? Answer: Yes. Ques tion No. 9(A): Please identify by number which statements were reasonably understood by the hearer as likely to injure Juarez in his occupation . Answer : 1, 2, 4. Question No. 10: Did Juarez prove that it is more likely true than not true that one
of t he statements you identified in response to Question 9A was a substantial factor in causing Juarez actual harm? Answer: Yes. Question No. 10(A): Please identify by number which statements were a substantial factor in causing Juarez harm . Answer : 1, 2, 4.12

Question No. 11: Did Juarez prove that it is more likely true than not true that he suffered actual damages as a result of one or more of the statements that you identified in response to 10 ( A ) being communicated by Juarez to any prospective emplo yer?
Answer: Y es. Question No. 11(A): Please identify which of the statements plaintiff proved he suffered damages as a result of . Answer : 1, 2, 4

. Question No. 11(B): What are Juarez ’s damages? Total past economic loss : $258,605.30 Total past n on

- econ omic losses: $0
TOTAL : $258,605.30 4

V I

.

Motion For New Trial ; Appeal Dish moved for a new trial on the grounds that (1) the trial court erred in refusing to instruct the jury that Juarez’s damages for compelled self

- publication were limited to those damages he sustained after the date of such compelled self

- publication; and (2) the jury’s damages award was excessive. On April 4, 2014, the trial court denied the motion on both grounds. Dish timely appealed.
CONTENTIONS
Dish contends there was no substantial evidence that (1) Dish made any false

statement s about Juarez, (2) the allegedly defamatory statements were assertions of fact, (3) the allegedly defamatory statements were not privileged, (4) Juarez was under a strong compulsion to publish the allegedly defamatory statements to prospective employers, and (5) Juarez suffered actual damages in the amount awarded. Dish also contends that (6) the special verdict form was fatally defective.
Juarez contends that each element of his cause of a ction for defamation was supported by substantial evidence
, and there were no defects in the special verdict form.

4 On a separate special verdict form, the jury found for Dish on Martha Juarez’s loss of cons ortium claim.13

As we now discuss, we conclude that the allegedly defamatory statements were subjective judgments, not provably false assertions of fact. A s such, they are not
actionable defamation as a matter of law. Because this conclusion requires reversal of the judgment for Juarez, we do not address any of Dish’s remaining claims.
DISCUSSION
I

. Applicable Law
A. Defamation Generally
Defamation is “a false and unprivileged publication” that exposes a person “to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.) To state a case
for defamatio n , a plaintiff must establish five elements: “ ‘(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.’ ” ( Sanders v. Walsh (2013) 219 Cal.App.4th 855, 862.) 5
“ ‘The si ne qua non of recovery for defamation .

. . is the existence of a falsehood.’ [Citation.]” ( Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259.) Thus, a claim for defamation fails unless the challenged statement can be reasonably understood to express or imply a “ provably false ” assertion of fact

. ( Milkovich v. Lorain Journal Co . (1990) 497 U.S. 1, 19

- 20 , italics added ; see also Kahn
v. Bower (1991) 232 Cal.App.3d 1599, 1607

- 1608; accord, James v. San Jose Mercury News, Inc

. (1993) 17 Cal.Ap p.4th 1, 13 [“there is also constitutional protection ‘for

5 Statements that contain such a defamatory charge directly, and without the need for explanatory matter, are libelous per se. (Civ. Code, § 45a.) A statement can also be libelous per se if it contains a charge by implication from the lang uage employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter. ( McGarry , supra , 154 Cal.App.4th at p. 112.) “However, if the listener would not recognize the defamator y m eaning 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 plea ding and proof of special damages. [Citation.]” ( Ibid .)14

statements that cannot “reasonably [be] interpreted as stating ac tual facts” about an
individual ’ ” ].) To ascertain whether the statements in question are provably false factual assertions, courts consider the “ ‘ totality of circumstances ’ ”

— i.e., “the meaning of the language in context and its susceptibility of being proved true or false.” ( Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 725 ( Moyer );

see also GetFugu, Inc. v. Patton Boggs LLP ( 2013) 220 Cal.App.4th 141, 156, citing Nygard, Inc. v. Uusi

–

Kerttula (2008) 159 Cal.App.4th 1027, 1049.) “ ‘Where the language of the statement is “cautiously phrased in terms of apparency,” the statement is less likely to be re asonably understood as a statement of fact rather than opinion.’ ” ( Dong v. Board of Trustees (1987) 191 Cal.App.3d 1572, 1584.) “The ‘ “crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.” ’ [Citation.]” ( Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 427.) Only if a statement “is ‘ambiguous and cannot be characterized as factual or nonfactual as a matter of law’ ” should a jury be permitted to determine whether the statement contains an actionable
assertion of fact. ( Ibid .) “ ‘The allocation of functions between court and jury with respect to factual content is analogous to the allocation with respect to defamatory meaning in general. On the latter is sue, the court must first determine as a question of law whether the statement is reasonably susceptible of a defamatory interpretation; if the statement satisfies this requirement, it is for the jury to determine whether a defamatory meaning was in fact c onveyed to the listener or reader. [Citations.] Similarly, it is a question of law for the court whether a challenged statement is reasonably susceptible of an interpretation which implies a provably false assertion of actual fact. If that question
is a nswered in the affirmative, the jury may be called upon to determine whether such an interpretation was in fact conveyed.’ ” ( Id . at p. 428.)15

B. “Subjective Judgments” Are Not Provably False Statements of Fact In evaluating defamation claims, California courts have distinguished between “verifiable facts” and “subjective judgments.” ( Moyer , supra , 225 Cal.App.3d at p. 725. )

“ The essential difference between a statement of fact and a statement of opinion is that a statement of fact implies a provably fa lse factual assertion while a statement of opinion
does not. ” ( Gallagher v. Connell (2 004) 123 Cal.App.4th 1260, 1270.) For example, a
statement that an individual is “ ‘extremely rude’ ” “ is not defamatory because it does not
make a factual assertion ca pable of being proven tru e or false. Whether someone is

‘ extremely rude ’ is a subjective judgment of th e person making the statement.” ( Ibid .) The Court of Appeal addressed the demarcation between objective fact and subjective judgment in McGarry , sup ra , 154 Cal.App.4th at p. 102 . There, after the University of San Diego (University) terminated plaintiff McGarry’s employ ment as its head football coach, the University p resident met with the parents of the football players.
The parents asked why McGarr y had been terminated , and the president responded that she could not comment. One parent, after stating that the timing of the termination was
unfortunate , asked, “ ‘ Was it criminal or morality dealing with this school? Yes or No? [¶] . . . [¶] If you say yes, I can live

— I’ ll back you 100 [percent]. If you say no, your timing’s bad and I can’t back you [any] more. Criminal or morality? ’ ” The president eventually responded, “ ‘ I can say that Coach McGarry was not involved to our knowledge in any cri minal activity. ’ ” ( Id. at p. 105.) McGarry sued the University and others for defamation, among other things. ( McGarry , supra , 154 Cal.App.4th at p. 102.) The defendants moved to strike the defamation claims pursuant to the anti

- SLAPP statute, Code of Civil Procedure section 425.16. The trial court granted the anti

- SLAPP motion, and McGarry appealed. ( McGarry , at p. 103.) The Court of Appeal affirmed. Among other things, it concluded that McGarry was not likely to prevail on his claim that the p resident’s statement to the parents was defamatory because it “was not reasonably susceptible of being interpreted to imply a provably false assertion of fact.” ( McGarry , supra , 154 Cal.App.4th at p. 116.) The16

court explained: “[E]ven assuming we accept ed McGarry’s claim that [the president] impliedly asserted he had engaged in some unspecified immoral behavior, the statement still is incapable of being interpreted as implying a provably false assertion of fact

. Behavior that might qualify as immoral to one person, although being perfectly acceptable to another person, demonstrates that an amorphous assertion of immoral behavior is within the range of statements of opinion that are not actionable. [¶] Because [the president’s] statement contains no hin t of what conduct she believed McGarry had engaged in that would be immoral, her statement neither contained nor implied a provably false assertion of fact, but at most implied an opinion. . . . ‘Indeed, the Court could not instruct the jury on how to eva luate the truth of a charge of immorality without entering an age old debate better left to philosophers.’ ” ( Id. at pp. 116

- 117 ; see also Moyer , supra , 225 Cal.App.3d at p. 725 [statements that a teacher was “ ‘ a babbler ’ ” and

“ ‘ the worst teacher at [ t he school ] ’ ” were not actionable because they were expressions of the speaker’s “subjective judgment” that “contain[ed] no verifiable facts”] .) The court applied these concepts to a defamation action arising out of an employee’s performance review in Jen sen v. Hewlett

- Packard Co. (1993) 14 Cal.App.4th
958 ( Jensen ) . There, the plaintiff sued his employer after receiving an unfa vorable performance evaluation. He was subsequently terminated. Plaintiff’s suit did not allege wrongful termination or construc tive discharge, but proceeded solely on the claim that that the unfavorable performance review was libelous and in breach of the implied covenant of good faith and fair dealing. ( Id. at p. 967.) The trial court granted a nonsuit following plaintiff’s ope ning statement, and plaintiff appealed. ( Id. at p. 969.) The Court of Appeal affirmed. It noted that the communication at issue was an
evaluation of plaintiff’s performance, prepared by plaintiff’s manager in the course of his designated duties: “[T] he word ‘ evaluation ’ denotes opinion, not fact. ‘Evaluation’ is
defined in Webster’ s Third New International Dictionary (1981) page 786, a s ‘. . . the act or result of evaluating: Judgment App raisal, Rating, Interpretation.’ To ‘evaluate’ is:

‘

. . . t o examine and judge concerning the worth, quality, significance, amount, degree,
or condition of. ’ ( Ibid .) The dictionary definition is not necessarily dispositive of the17

fact/opinion issue, but it c ertainly implies the defendants’ intended legitimate pu rpose of the document, i.e., its use as a management tool for examining, appraising, judgi ng and documenting the employee’ s performance. ” ( Jensen, supra, 14 Cal.App.4th at p

. 970 .) Further, the court noted that the contents of the evaluation

— including that plaintiff
had not “ ‘ increased his skill
, ’ ” was not “ ‘ pulling his weight, ’ ” appeared to lack concern for management’ s need for information
, had “ ‘ weak ’ ” knowledge of project management and process control, displayed “ ‘ questionable judgment
, ’ ” d isplayed a

“ ‘ lack of attention ’ ” to tasks and “ ‘ overall communication with the team
, ’ ” and was the subject of a “ ‘ tremendo us amount of negative feedback ’ ”

— were statements of opinion,
not fact. ( Jensen , s upra , 14 Cal.App.4th at p. 971 & fn. 14 .) Acc ordingly, the court held that “unless an employer’ s performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal
characteristics or behavior [citation], it cannot support a ca use of action for libel. This is true even when the employer’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. ” ( Id. at p. 965.)
The court noted finally that its conclusion was consistent with the California Supreme Court’s holding in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, that tort remedies are not available for breach of the implied covenant of good faith and fair dealing in an employment contract. ( Jensen , supra , 14 Cal.App.4th at p. 972.) While noting that employees frequently deny the basis for an employer’s criticism, “ we are compelled to conclude the court is an inappropriate forum for resolut ion of this grievance. No matter the denomination of the cause of action, employers should neither be required to justify performance evaluations by reference to objectively provable facts, nor subjected to fear of liability for good faith, but mistaken, judgments about the value of an individual employee to the business enterprise. ” ( Id. at p p. 974

- 975.)18 II. Dish’s Allegedly Defamatory Statements Were Non

Actionable Because They Were Subjective Judgments,

Not Verifiable Assertions of Fact Plaintiff argu ed to the jury that Dish communicated to him five defamatory

statements about the reasons for his termination, which h e was under a strong pressure to communicate, and did communicate, to prospective employers. The jury found that Juarez was harmed by the publication of three of the allegedly defamatory statements (identified as statements 1, 2, and 4 on the special verdict form) , as follows: (1) Juarez’s “version of the events appeared to be less than credible by not being forthcoming during his intervie w” ; (2) Juarez “did not cooperate fully with Dish’s investigator regarding an allegation of theft of jewelry from a customer’s home” ; and (4) Juarez “did not answer questions completely regarding an allegation of theft of jewelry from a customer’s home .” The first allegedly defamatory statement

— that Juarez’s “version of the events appeared to be less than credible by not being forthcoming during his interview”

— is not actionable as a matter of law because it expresses Yoshim i ’s subjective evaluation of Juarez’s demeanor and willingness to answer questions during his interview, not a provably false assertion of fact. Had Yoshim i stated that Juarez had lied (or “is a liar”)
, that assertion could potentially have given rise to a defamation claim because an accusation of lying “i mplies a knowledge of facts which lead to the conclusion that [ the plaintiff ] told an untruth. ” ( Milkovich v. Lorain Journal Co . (1990) 497 U.S. 1, 18 .) In
contrast, Yoshimi’s statement did not imply knowledge of facts leading to t he conclusion
that Juarez told an untruth

— to the contrary, Yoshimi expressly disclaimed such knowledge, stating that she “ could not determine if Mr. Juarez took the customer’s jewelry.” All the statement said was that Juarez “ appeared ” (to Yoshimi) not to be “forthcoming
, ” and therefore to be “less than credible

. ” Like the statements in McGarry
and Jensen , Yoshimi’s subjective evaluation of Juarez’s apparent credibility is19

nonactionable because it cannot be proved true or false. (See Dong v. Board of Tru stees (1987) 191 Cal.App.3d 1572, 1587 [phrases “ ‘I claim that’ ” and “ ‘I consider that’ ” “are plainly expressions of opinion”].) For the same reasons, t he second and fourth allegedly defamatory statements
, like the first statement, are statements of opinion , not fact, and thus are not actionable. But there is an even more fundamental problem with these alleged statements: There was no evidence at trial that these statements were either made to Juarez or published to any potential employers. The ev idence at trial was that the only communications between Dish and Juarez about the reasons for his termination were during a brief meeting on August 26, 2011, when Yoshimi told Juarez he was being terminated. Juarez testified that Yoshimi presented him wi th a termination memorandum and told him she felt he had not been truthful with her during their original phone call on August 2. The memorandum said that a customer had accused Juarez of jewelry theft, and noted Juarez’s obligation, as stated in Dish’s e mployee handbook, to “cooperate fully with DISH Network investigations” and to “answer questions truthfully, completely, and to the best of your ability.” The termination memorandum then stated as follows: “We
cannot determine if Mr. Juarez took the cust omer’s jewelry, however
, his version of the
events appear

[ ed ] to be less than credible by not being forthcoming during his interview

. The decision has been made to terminate his employment effective August 26, 2011 for Policy Violation.” 6 (Italics added. )
There is nothing in the termination memorandum or Juarez’s testimony to support the jury’s finding that Dish communicated that Juarez “did not cooperate fully with Dish’s investigator regarding an allegation of theft of jewelry from a customer’s home”

o r that Juarez “did not answer questions completely regarding an allegation of theft of jewelry from a customer’s home.” Although the termination memorandum referenced

6 On appeal, Juarez asserts that the special verdict questions were based on the termination memorandum and Yoshimi’s August 8, 2011 email summarizing her investigation. The August 8 email is summ arized in the Factual and Procedural Background , above; it makes no assessments of Juarez’s truthfulness or cooperation.20

the obligation of employees to “cooperate fully” and to “answer questions . . . complete ly,” the memorandum did not accuse Juarez of failing to have done so. And
, as we have said, Juarez has not identified any other evidence to support the conclusion that Yoshimi or any other Dish employee told Juarez that he did not cooperate fully or answe r questions completely.
We note in conclusion that if defamation cases like the present one are allowed to proceed, they create a real potential to stifle communication in the workplace.

“ Defamation litigation is costly. The expenditure of time, resou rces, and money required
to defend a [defamation claim] inevitably will induce self

- censorship by employers. [Citation.] The consequent harm to employees will be significant. Performance evaluations, which often inform discharge decisions, are a standar d feature of modern management practices, and widely are endorsed as valuable to employees and employers alike. [Citation.] Beneath a dangling sword of defamation, employers are unlikely to provide employees with any reasons for employment decisions, inc luding discharge, depriving employees of any opportunity to contest those decisions. [Citation.] There is surely nothing more harmful to a discharged employee who must tell a prospective employer, ‘I don’t know why I was fired. I was never given a reaso n.’ ” ( White v. Blue Cross and Blue Shield of Massachusetts, Inc . (2004) 442 Mass. 64, 70 [809 N.E.2d 1034, 1038]; see also Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd

. (2002) 100 Hawai i 149, 172 [58 P.3d 1196, 1219] [“ ‘The potential for defamation li ability every time an employee is terminated would chill communications in the work place, preventing employers from disclosing reasons for their business decisions, and would negatively affect grievance procedures intended to benefit the discharged employ ee.’ ”]; Sullivan v. Baptist Memorial Hosp . (Tenn. 1999) 995 S.W.2d 569, 573 [“the potential for defamation liability every time an employee is terminated would chill communications in the work place.”] ; Rice v. Nova Biomedical Corp . (7th Cir. 1994) 38 F.3 d 909, 912 [expanding defamation claims in employment context “makes it impossible for an employer to communicate his grounds for discharging an employee to the employee even confidentially without incurring a grave risk of being sued for defamation .”].)21 D ISPOSITION The judgment is reversed with directions to the trial court to enter judgment for Dish. Dish is awarded its appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

ALDRICH, J.

JONES, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitu tion.