Filed 12/1/15 Juarez v. Dish 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.,

Plaintiffs and Respondents,

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, Judges. Reversed with directions.

Daniel M. Graham for Plaintiffs and Respondents.

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

for Defendants and Appellants.

_________________________
2

Plaintiff Oscar Juarez (Juarez), a former employee of defendant 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 jewelry, 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 decide 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 losses 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 fact (Gallagher v. Connell (2004) 

123 Cal.App.4th 1260, 1270). The statements on which Juarez relies—that he appeared 

“less than credible” and “not . . . forthcoming”—are subjective judgments, 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 BACKGROUND1

I.

The Parties

Dish is a provider of satellite-based television. From 2004 to 2011, Juarez worked 

for Dish as a “field service 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; 

After 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 reported

that a ring had been stolen from her during the installation. 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 Valadez, the 

installation manager of the Hawthorne office where Juarez worked, and asked that the 

allegation be investigated internally. Valadez forwarded the request to Jill Yoshimi

(Regional Human Resources Manager), Frank Sandoval (General Manager of the 

Hawthorne office), and Mike Barthelme (Regional Operations Manager).

Yoshimi called Juarez on August 2, 2011, and told him she had some questions 

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

customer lived, the date 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. According to Yoshimi, Juarez did not recall anything about the job or the 

customer until she revealed 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 conversation 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 accused 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 installation 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 contacted Dish again and spoke with someone in the Corporate Field 

Resolutions department. Yoshimi 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 (Regional Director for the Southwest Region), Mike Barthelme, and 

Frank Sandoval regarding her investigation of Juarez. In relevant 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 information 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 denied 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 technician 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 Keri 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 investigation was inconclusive: “We [couldn’t determine] if [he] did 

or did not take the ring.” Based on Yoshimi’s investigation, Raj and Barthelme 

recommended reinstating Juarez “because he has no previous issues with customer 

complaints or allegations of theft.” 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, everyone 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 (Executive 

Vice President, Dish Network) and Stephen Wood (Executive Vice President, Human 

Resources), with 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 recommendations. 

[¶] Important 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 interview 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 day, 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 customer 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 this . . . 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 of 
7

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 investigations. 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 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.”

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 to be 

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 . . . allegedly 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 were 
8

hiring. He also submitted a written job application 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.

IV.

The Present Action; Dish’s Motion for 

Summary Judgment or Summary Adjudication

Juarez and his wife, Martha Juarez, filed the present 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 alleged 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 judgment, but granted summary adjudication 

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 

potential 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 forthcoming during his interview’; OR

(2) “that ‘Oscar Juarez did not cooperate fully with DISH’S investigator 

regarding an allegation of theft of jewelry from 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 jewelry 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 plaintiff 

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. 

Question No. 3(A): Please identify which of the statements listed above was 

communicated to someone who 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) who 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: Yes.

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 No. 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? Answer: Yes.

Question No. 7(A): Please identify which of the statements 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 

statements to a prospective employer. Answer: March 2013.

Question No. 8: Were all 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.

Question 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 the 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 employer? 

Answer: Yes.

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 non-economic losses: $0

TOTAL: $258,605.304 

VI.

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 

statements 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 action 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 consortium claim.
13

As we now discuss, we conclude that the allegedly defamatory statements were 

subjective judgments, not provably false assertions of fact. As 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 defamation, 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 sine 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.App.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 language 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 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. [Citation.]” (Ibid.)
14

statements that cannot “reasonably [be] interpreted as stating actual 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 reasonably 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 issue, 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 conveyed 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 answered 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 false factual assertion while a statement of opinion 

does not.” (Gallagher v. Connell (2004) 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 capable of being proven true or false. Whether someone is 

‘extremely rude’ is a subjective judgment of the person making the statement.” (Ibid.) 

The Court of Appeal addressed the demarcation between objective fact and 

subjective judgment in McGarry, supra, 154 Cal.App.4th at p. 102. There, after the 

University of San Diego (University) terminated plaintiff McGarry’s employment as its 

head football coach, the University president met with the parents of the football players. 

The parents asked why McGarry 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 criminal 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 president’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.) The 
16

court explained: “[E]ven assuming we accepted 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 hint 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 evaluate 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 [the 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 Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 

958 (Jensen). There, the plaintiff sued his employer after receiving an unfavorable 

performance evaluation. He was subsequently terminated. Plaintiff’s suit did not allege 

wrongful termination or constructive 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 opening 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, as ‘. . . the act 

or result of evaluating: Judgment Appraisal, Rating, Interpretation.’ To ‘evaluate’ is: 

‘ . . . to examine and judge concerning the worth, quality, significance, amount, degree, 

or condition of.’ (Ibid.) The dictionary definition is not necessarily dispositive of the 
17

fact/opinion issue, but it certainly implies the defendants’ intended legitimate purpose of 

the document, i.e., its use as a management tool for examining, appraising, judging 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,’ ” displayed a 

“ ‘lack of attention’ ” to tasks and “ ‘overall communication with the team,’ ” and was the 

subject of a “ ‘tremendous amount of negative feedback’ ”—were statements of opinion, 

not fact. (Jensen, supra, 14 Cal.App.4th at p. 971 & fn. 14.) Accordingly, 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 cause 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 resolution 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 pp. 974-975.)
18

II.

Dish’s Allegedly Defamatory Statements Were NonActionable Because They Were Subjective Judgments, 

Not Verifiable Assertions of Fact

Plaintiff argued to the jury that Dish communicated to him five defamatory 

statements about the reasons for his termination, which he 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 interview”;

(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 Yoshimi’s subjective evaluation of 

Juarez’s demeanor and willingness to answer questions during his interview, not a 

provably false assertion of fact. Had Yoshimi 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 “implies 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 the 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 is 
19

nonactionable because it cannot be proved true or false. (See Dong v. Board of Trustees

(1987) 191 Cal.App.3d 1572, 1587 [phrases “ ‘I claim that’ ” and “ ‘I consider that’ ” 

“are plainly expressions of opinion”].) 

For the same reasons, the 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 evidence 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 with 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 employee 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 customer’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” 

or 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 summarized 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 . . . 

completely,” 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 answer 

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, resources, 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 standard 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, including 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 reason.’ ” (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 Hawaii 149, 

172 [58 P.3d 1196, 1219] [“ ‘The potential for defamation liability 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 employee.’ ”]; 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.3d 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

DISPOSITION

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 Constitution.