APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed in part and reversed in part. (Super.Ct.No. SCVSS133092).
The opinion of the court was delivered by: Richli, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Plaintiff Elizabeth Sanchez was a high-ranking employee of the County of San Bernardino (the County), widely regarded as a "rising superstar." Among her other accomplishments, she negotiated a labor contract with the Safety Employees Benefits Association (the Association), the labor union responsible for representing sheriff‟s deputies. Thereafter, however, she and James Erwin, the president of the Association, began having "a physical romantic relationship." She denies that this created any actual conflict of interest, because, she maintains, she was never involved in any further negotiations with either Erwin or the Association. Nevertheless, when her supervisor discovered the relationship, he insisted that she resign.
The County and Sanchez entered into a written severance agreement, which provided that neither side would disclose "the facts, events and issues which gave rise to this Agreement . . . ." Despite this confidentiality provision, newspaper articles appeared almost immediately that quoted county representatives - including Supervisor Dennis Hansberger - to the effect that Sanchez had resigned due to a "conflict of interest" arising out of an ""improper‟ relationship" with Erwin.
Sanchez then filed this action against the County and Hansberger for, among other things, breach of contract, promissory fraud, invasion of privacy and intentional infliction of emotional distress. The trial court granted summary adjudication on these causes of action in favor of defendants.
In the published portion of this opinion, we will hold that the trial court erred by granting summary adjudication on Sanchez‟s cause of action for breach of contract. The trial court essentially reasoned that the confidentiality provision was void as against public policy, because the County supposedly had a duty to make the disclosures that it did. However, while the County may have had a duty to disclose the severance agreement itself (at least on request), it had no such duty to disclose the circumstances that gave rise to the severance agreement. Moreover, while the County claims that it had a First Amendment right to make the disclosures, any such right was waived by the confidentiality provision.
In the unpublished portion of this opinion, however, we will uphold the summary adjudication of Sanchez‟s other causes of action.
In 2005, Sanchez filed this action against the County and Hansberger. She asserted 10 causes of action:
First: Breach of contract (against the County only).
Second: Promissory fraud (against the County only).
Third through sixth: Slander, each based on a different set of allegedly false statements.
Seventh: Invasion of privacy by public disclosure of private facts. Eighth: Intentional interference with prospective economic advantage.
Ninth: Misrepresentation to prevent a former employee from obtaining employment. (Lab. Code, § 1050.)
Tenth: Intentional infliction of emotional distress.
The County filed a special motion to strike (SLAPP motion). (Code Civ. Proc., § 425.16.) The trial court denied the motion with respect to the first, second, seventh, and tenth causes of action; however, it granted the motion with respect to the third through sixth and the eighth through ninth causes of action. Sanchez did not appeal. (See Code Civ. Proc., § 425.16, subd. (i).)
The County and Hansberger then filed motions for summary judgment on the first, second, seventh, and tenth causes of action. The trial court granted both motions. Accordingly, it entered judgment against Sanchez and in favor of the County.
The trial court ruled, however, that the third through sixth and eighth through ninth causes of action were still pending as against as against Hansberger, because he had neither filed a SLAPP motion of his own nor joined in the County‟s. Hansberger therefore brought a second motion for summary judgment with respect to the remaining causes of action. Sanchez did not oppose Hansberger‟s second motion for summary judgment, which was granted. The trial court then entered judgment against Sanchez and in favor of Hansberger.
Sanchez filed a timely notice of appeal from each judgment.
A. Preliminary Evidentiary Issues
Each side filed written objections to evidence offered by the other side. The trial court never ruled on these objections. Moreover, it does not appear that either side ever pressed for a ruling on them. Accordingly, all such objections have been forfeited for purposes of appeal. We can consider all of the evidence submitted in connection with the summary judgment motions. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 782-785.)
Hansberger, however, repeatedly cites material that was submitted in connection with other motions, such as the SLAPP motion and his second, unopposed motion for summary judgment. We limit our consideration to the evidence that was before the trial court in connection with the two crucial motions for summary judgment.
B. Facts Shown by the Evidence
Sanchez began working for the County in 1987. Over the years, she was given a number of promotions. In July 2000, she was named chief of the Employee Relations Division. As such, she was the County‟s chief labor negotiator and its principal advisor on employee relations.
Around September 2002, the County began negotiations with the Association toward a new Memorandum of Understanding (MOU).*fn2 Sanchez was the chief negotiator for the County. James Erwin was the president of the Association. However, he was not the lead negotiator for the Association, and he participated in the negotiations over the MOU only infrequently. By March 2003, the board of supervisors had adopted the MOU.
In May 2003, Sanchez and Erwin "began a physical romantic relationship." At the time, each of them was already married to someone else.
The County‟s personnel rules included the following "Conflict of Interest" provision: "No official or employee . . . shall have a financial or other personal interest or association which is in conflict with the proper discharge of official duties or would tend to impair independence of judgment or action in the performance of official duties. Personal as distinguished from financial interest includes an interest arising from blood or marriage relationships or close business, personal, or political association."
Sanchez recognized that the relationship was "inappropriate," but only because there could be "the appearance of a conflict of interest"; in her opinion, there was never any actual conflict of interest. As she acknowledged, it was theoretically possible that issues could have arisen regarding an amendment or an interpretation of the MOU such that she would have had an actual conflict of interest. However, we assume, for purposes of argument, that there was a triable issue of fact as to whether this ever actually occurred once the affair was in progress.*fn3
After the affair had begun, Erwin and Sanchez gave each other a number of gifts. Erwin‟s gifts to Sanchez included diamond earrings, a necklace, and a $350 Raymond Weil watch. In October 2003, he gave her $5,000 in cash. Sometime in 2004, he gave her an additional $2,000 in cash.
Sanchez was legally required to disclose most gifts and loans that she received by filing a "Statement of Economic Interests," also known as a "form 700." However, she did not disclose any of these gifts from Erwin. She relied on legal advice from county counsel to the effect that she was not required to disclose gifts received in the context of a dating relationship. The Fair Political Practices Commission had in fact issued an advice letter stating, "Gifts of a personal nature received in a "bona fide dating relationship‟ are not subject to the reporting or gift limitation provisions of the [Political Reform] Act." (Bolding omitted.)
In July 2004, Sanchez was promoted to director of human resources. At that point, her supervisor was County Administrative Officer Mark Uffer. By August 2004, Uffer had heard a rumor about a relationship between Sanchez and Erwin. He "confronted" Sanchez about this, but she "lied to him about the existence of [the] relationship . . . ."
Meanwhile, in December 2003, Sanchez had filed for divorce. In September 2004, her divorce became final. By October or November 2004, however, her relationship with Erwin had become strained.
On December 14, 2004, Erwin drove Sanchez to a restaurant for lunch. Once there, Sanchez broke up with him. He was angry and remarked, "You better find another job." She took this as a threat. She told him to leave the restaurant without her. She then called Uffer and asked him for a ride back to the office. During the ride, she disclosed the true nature of her relationship with Erwin.
On December 20, 2004, Uffer told Sanchez that she needed to resign. He presented her with a "Compromise, Release and Settlement Agreement" (capitalization omitted; hereafter Severance Agreement) that had been drafted by county counsel. It provided that Sanchez would execute a letter of resignation immediately, although her resignation would not be effective until April 20, 2004; until then, she would be on paid leave.
It also included the following confidentiality provision: "To the maximum extent permitted by law, the parties further agree that this Agreement, the terms and conditions of this Agreement, the facts, events and issues which gave rise to this Agreement, and any and all actions by Ms. Sanchez and the County in accordance therewith, are strictly confidential and shall not be disclosed or discussed with any other persons, entities or organizations, whether within or without the County, except as may be required by applicable law." Sanchez accepted and signed the Severance Agreement.
Starting on December 22, 2004, a number of newspaper articles reported on Sanchez‟s resignation. They named Uffer and Hansberger as sources. Hansberger reportedly stated that Sanchez had "resigned after disclosing that she had an improper relationship with [Erwin,] the president of the union that represents sheriff‟s deputies . . . ." Uffer reportedly stated that Sanchez had "created a conflict of interest that required her to leave," although he indicated that this was "a conflict of the heart," rather than a financial or legal conflict.
Some of the articles made it clear that the supposed conflict had not existed when Sanchez was negotiating the MOU. However, an article in the Los Angeles Times was somewhat more equivocal; it stated that "Sanchez‟s ...