by the exclusiveness clause no matter what its name or technical form if the usual conditions of coverage are satisfied. [citation]
If characterization of conduct normally occurring in the workplace as unfair or outrageous were sufficient to avoid the exclusive remedy provisions of the Labor Code, the exception would permit the employee to allege a cause of action in every case where he suffered mental disability merely by alleging an ulterior purpose of causing injury. Such an exception would be contrary to the compensation bargain and unfair to the employer.
Cole at 160 (emphasis added).
Kacludis attempts to avoid preemption by arguing that a fraud was perpetrated against him, and that the exclusivity of workers' comp is thus inapplicable. However, he cites in support of this proposition Shoemaker v. Meyers, 52 Cal.3d 1 (1990). In that case, however, the California Supreme Court confirmed that workers comp was the exclusive remedy in a case similar to this one. In Shoemaker, an investigator was allegedly
harassed and terminated in retaliation for "whistle blowing." Further, the plaintiff there alleged facts much more egregious and indicative of actual malice and intent to injure. Nevertheless, the court found that workers' comp was the exclusive remedy for claims of intentional infliction of emotional distress and wrongful termination. In so holding, the court stated that
To the extent plaintiff purports to allege any distinct cause of action, not dependent upon the violation of an express statute or violation of fundamental public policy, but rather directed at the intentional, malicious aspects of defendants' conduct . . . , then plaintiff has alleged no more than the plaintiff in [Cole], i.e., that the employer's conduct caused him to suffer personal injury resulting in physical disability. Cole therefore controls. The kinds of conduct at issue . . . are a normal part of the employment relationship. Even if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers' compensation exclusivity provisions.
Shoemaker at 25 (emphasis in original). See also Livitsanos v. Superior Court, 92 C.D.O.S. 4266 (May 18, 1992); United States Borax and Chemical Corp. v. Superior Court, 167 Cal. App. 3d 406 (1985) (intentional deceit does not remove case from workers' comp).
Nor does Ramey v. General Petroleum Corp., 173 Cal. App. 2d 386, 401 (1959) support Kacludis' position here. In that case, a gravely injured worker was fraudulently induced to sign a release absolving a third-party subcontractor from liability. The fraud in that case was extrinsic to the employment relationship, involving a third-party claim falling within the dual-capacity doctrine. Ramey simply does not support the proposition that generalized statements by a supervisor to an employee concerning that supervisors intent to assist in finding replacement employment are sufficient to take this case out of the ambit of workers' comp. To hold otherwise would be to exempt all cases of physical or emotional injury in connection with termination from workers comp simply by claiming that the employer led the employee to believe that he would not be fired.
Moreover, even were fraudulent conduct somehow exempt, Kacludis simply has not pled fraud with the requisite specificity. His generalized allegations of malicious intent on the part of Malik, coupled with a failure to allege any detriment caused by reliance upon any knowingly false statements, are insufficient to support an allegation of fraud or intentional misrepresentation. Any damages alleged are the result of termination, not of any action or forbearance to act in reliance upon fraudulent statements.
Under the clear caselaw from the California Supreme Court, therefore, Kacludis' third, fourth, fifth, sixth,
and ninth causes of action are governed exclusively by California's workers' compensation system, and are therefore dismissed.
3. Slander Per Se
Kacludis' seventh cause of action is for slander per se, alleging that Malik and an unspecified supervisor of Malik's made disparaging comments to others within Sprint concerning Kacludis' qualifications.
California Civil Code § 47(c) (formerly § 47(3)) provides that "A privileged communication is one made: . . . In a communication, without malice, to a person interested therein, (1) by one who is also interested." As it is apparent from the face of the complaint that Malik and the other managers at Sprint were interested parties, the communication is presumed to be privileged absent pleading of specific facts to defeat that privilege. Smith v. Hatch, 271 Cal. App. 2d 39 (1979); Lesperance v. North American Aviation, Inc., 217 Cal. App. 2d 336 (1963).
Kacludis has not pled facts sufficient to rebut the presumptive privilege here. Mere allegations that the statements were made "with malice" or with "no reason to believe the statements were true" are insufficient to rebut the presumption of privilege. Agarwal v. Johnson, 25 Cal. 3d 932 (1979); Martin v. Kearney, 51 Cal. App. 3d 309, 312 (1975).
Moreover, the sort of communications alleged here is paradigmatic of the sort of activities protected by the manager's privilege. Los Angeles Airways v. Davis, 687 F.2d 321, 328 (9th Cir. 1982). Having pled facts giving rise to a presumptive manager's privilege, Kacludis bears the burden of defeating that privilege. Quiller v. Barclays American Credit, Inc., 727 F.2d 1067 (11th Cir. 1984).
If that privilege protects nothing else, it protects a manager's right to manage personnel (including firing and hiring) without fear of independent liability, absent concrete and specific allegations that such actions were entirely for the benefit of the individual. Davis at 328. The manager's privilege thus protects Malik from liability for all causes of action pled herein.
As such, the seventh cause of action is dismissed.
4. Interference With Prospective Business Advantage
Kacludis' eighth cause of action purports to state a claim for interference with prospective business advantage. The identical claim was attempted in identical circumstances in Shoemaker. The Supreme Court held that
With respect to the tort of interference with prospective economic advantage, plaintiff's pleading has identified no "prospective economic advantage" other than the continuation of his employment relationship. Thus . . . it is in reality identical in substance to plaintiff's claim of inducement of breach of contract. It is axiomatic, however, that there can be no action for inducement of breach of contract against the other party to the contract. It is well established that corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation's contract.
Here, the parties against whom plaintiff seeks recovery on this cause of action are plaintiff's supervisors: agents of the employer who are vested with the power to act for the employer (rightly or wrongly) in termination plaintiff's employment. For purposes of this cause of action, then, these defendants stand in the place of the employer, because the employer--the other party to the supposed contract--cannot act except through such agents.
Shoemaker at 24-25.
Kacludis' bare allegation that Malik somehow acted outside the scope of the employment relationship in firing Kacludis does not change the analysis here; Malik's position is factually on all fours with the individual defendants in Shoemaker. As such, the eighth cause of action is dismissed.
In accordance with the foregoing, it is hereby ORDERED that:
(1) Plaintiff Kacludis' motion to remand to state court be, and hereby is, DENIED;
(2) Defendants' motion for leave to amend their Notice of Removal be, and hereby is, GRANTED, and;
(3) Defendants' motion to dismiss causes of action three through nine pursuant to Fed. R. Civ. P. 12(b)(6) be, and hereby is, GRANTED.
IT IS SO ORDERED.
Dated: September 24, 1992.
United States District Judge