Peterson v. Fox Entertainment Group, Inc., Case. No. B207475 (Cal. Ct. App. 2d Dist. 2010) - Vicarious Liability

DEBORAH L. PETERSEN, as Trustee in Bankruptcy, etc., Plaintiff and Appellant, v. FOX ENTERTAINMENT GROUP, INC., FOX NEWS NETWORK, LLC, TWENTIETH CENTURY FOX FILM COPORATION, INC., and NEWS AMERICA, INC., Defendants and Respondents.

In The Court of Appeal of The State Of California, Second Appellate District, Division Five, May 26, 2010

APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I. Jones, Judge. Affirmed.
Myer Law Firm and Scott D. Myer for Plaintiff and Appellant.
McBreen & Senior, David A. Senior, Matthew L. Weston, and Ann K. Tria for Defendants and Respondents.

I. INTRODUCTION

Plaintiff, Kay L. Nelson,1 appeals from a March 29, 2010 judgment of dismissal entered after demurrers to her first amended complaint were sustained without leave to amend.2 The judgment is in favor of defendants, Fox Entertainment Group, Inc., Fox News Network, LLC, News America Incorporated and Twentieth Century Fox Film Corporation (defendants). We conclude plaintiff failed to allege sufficient facts to hold defendants liable for the alleged tortious conduct based upon respondeat superior, ratification, or negligent retention of an employee theories. Accordingly, we affirm the judgment.

II. BACKGROUND

The operative pleading is a first amended complaint. The first amended complaint primarily chronicles telephone and e-mail communications between Dama C. Chasle, an attorney formerly employed by defendants, and Richard Farr, a radio personality. Further, the first amended complaint describes contact between defendants’ personnel and plaintiff’s former husband, Beaux Carson, and others acting on his behalf, concerning Ms. Chasle’s conduct. Plaintiff alleges defendants were liable for Ms. Chasle’s and Mr. Farr’s tortious conduct as their employer or principal.3 And as to Ms. Chasle, the first amended complaint alleges defendants are liable on ratification4 or negligent failure to discharge theories.

Liberally construed, the first amended complaint alleges as follows. Mr. Carson, who at the time was plaintiff’s spouse, was developing several reality television programs including Deadbeat Dads. The right to produce Deadbeat Dads was optioned to Dick Clark Productions. Mr. Carson’s business associate, Jack Price, had “pitched” Deadbeat Dads to Dick Clark Productions. For reasons not alleged, Ms. Chasle, who at the time was employed by defendants, sought to stop the development of Deadbeat Dads and discourage Dick Clark Productions from going forward with the project. Sometime prior to February 10, 2005, Mr. Farr wrote an article objecting to Deadbeat Dads. Ms. Chasle contacted Mr. Farr and identified herself as a “Fox Executive.” Ms. Chasle encouraged Mr. Farr to investigate, accuse and discredit Mr. Carson and Mr. Price, in order that Dick Clark Productions would drop the Deadbeat Dads project. Ms. Chasle led Mr. Farr to believe that if he cooperated with her he had a future as a writer or otherwise with defendants. Ms. Chasle gave Mr. Farr information about Mr. Carson and others, claiming her sources were within defendants’ news organization. She told Mr. Farr that Mr. Carson had “a problem” with painkillers. She also said Mr. Carson and Mr. Price “had ‘serious’ pornography” connections. She asserted that Mr. Carson and Mr. Price were operating a credit card theft ring. She encouraged Mr. Farr to contact Dick Clark Productions, local law enforcement and the Federal Bureau of Investigation. Ms. Chasle said that Mr. Carson and Mr. Price had threatened Mr. Farr’s life. Ms. Chasle also gave Mr. Farr “very personal information” about plaintiff and her parents. As noted, plaintiff was then married to Mr. Carson. Acting at Ms. Chasle’s urging and in the belief that she represented defendants, Mr. Farr: made police and Federal Bureau of Investigation reports concerning Mr. Carson and Mr. Price; telephoned plaintiff’s home; during the calls harassed plaintiff; also harassed plaintiff’s mother during the telephone calls; told plaintiff’s mother “all the false information he ha[d] allegedly gleaned on Beaux Carson and [warned] her that [plaintiff’s] life [was] in danger”; caused plaintiff’s mother to suffer a heart attack; telephoned plaintiff and said “that Beaux Carson stole her credit card and bought a new computer for [a third party] and that he was involved in other unscrupulous activities”; and during the telephone conversation, said he was working with a “high level executive from Fox.”

Plaintiff further alleges: “Defendants ha[ve] watched, followed, almost ran off the road and threatened the Plaintif[f] over random occasions. On information and belief, and based thereon, the Plaintiff alleges that Defendants had the Plaintiff[’s] medical records changed and took out loans in her name. Defendants have interfered with the Plaintiff’s personal life, ha[ve] interfered with the Plaintiff’s business and professional life, attempted to ruin Plaintiff’s financial state, attempted to and in fact did ruin the Plaintiff’s marriage to Beaux Carson, and caused Plaintiff to lose over 150 clients/students. These actions affected the Plaintiff’s ability to compete professionally and caused substantial loss of income and loss of business. Further, Plaintiff suffered extreme emotional, physical and financial distress and duress as a result.”

Plaintiff also alleges that Mr. Carson and persons acting on his behalf contacted defendants regarding Ms. Chasle’s actions. On May 5, 2004, several months before Ms. Chasle first contacted Mr. Farr, Mr. Carson notified defendants “regarding CHASLE’s behavior, the harassment by CHASLE/FOX and the interference by CHASLE/FOX” in Mr. Carson’s contractual rights. Nine months later and four days before Ms. Chasle first e-mailed Mr. Farr, on February 4, 2005, two private investigators met with the head of security at Twentieth Century Fox Studios and with Ms. Chasle’s immediate supervisor. According to the first amended complaint, “[The two investigators] presented the problem Beaux Carson and his family, including Plaintiff, were having with CHASLE and FOX, interfering in his business, harassment and stalking, despite previous warnings to FOX.”

A series of contacts by “Tom Kent of Chapman Ventures” followed in close succession. On February 15, 2005, Mr. Kent “call[ed] Fox legal and Human Resources to discuss the CHASLE and FOX problems.” Mr. Kent then sent Helen McDevitt “at Fox Human Resources” an e-mail “to elicit [Fox’s] cooperation in having CHASLE and FOX cease and desist her [sic] actions, alerting [Ms. McDevitt] to the Deadbeat Dads issue, Blue Mountain and other project interferences.” Also on February 15, 2005, Mr. Kent sent a second e-mail to Ms. McDevitt. This e-mail provided “more information” concerning Ms. Chasle’s activities. Two days later, on February 17, 2005, Mr. Kent sent another e-mail to Ms. McDevitt in order “to follow-up on” what action was being taken. On February 24, 2005: “[Mr.] Kent alert[ed] [Ms.] McDevitt of the ongoing incidents and ask[ed] her to secure all records. He follow[ed] up with another e[-]mail and a phone call.” The following day, February 25, 2005, Mr. Kent “e[ ]mail[ed] and call[ed] [Ms.] McDevitt with new issues concerning” Ms. Chasle. Mr. Kent also sent defendants by e-mail “a formal cease and desist letter detailing [Ms. Chasle’s] activities and interferences.” A meeting was set for March 4, 2005. On that date, Mr. Kent and Mr. Carson met “with Human Resources and Legal” and “present[ed] all the incidents they know of that have occurred since the meeting with Fox Security” one month prior. Mr. Kent and Mr. Carson demanded that defendants take action to end Ms. Chasle’s actions against them. On March 10, 2005, one month after Mr. Carson’s representatives first met with defendants’ personnel, a private investigator e-mailed Ms. McDevitt regarding the telephone calls Mr. Farr had made to plaintiff. The e-mail also referred to the telephone call made to plaintiff’s mother. In April or May 2005, Ms. Chasle was fired. Plaintiff alleges, “Exact date is not known as Fox would not disclose.”

Plaintiff’s first cause of action is for interference with contractual rights and prospective economic advantage. Plaintiff alleges defendants “and others” intentionally or negligently interfered with her contractual relationships with her dance students and disrupted her business, The Dance Company by Kay L. Nelson, “leading to extreme loss” of business. The second amended complaint alleges defendants were plaintiff’s principals. The alleged interference includes use of fraud, deceit and misrepresentation and “false representations” to third parties.

The second cause of action for trade libel, alleges defendants knowingly or recklessly made false and libelous statements about plaintiff’s business including that: it was “harmful and dangerous to students”; that plaintiff’s “business practices were scandalous”; and, as a result, her business suffered pecuniary loss. Plaintiff further alleges defendants allowed Ms. Chasle to use their resources including telephones, stationary and premises to conduct her wrongful acts. Plaintiff’s third cause of action for defamation was brought against Ms. Chasle alone. The fourth cause of action was for intentional infliction of emotional distress. Plaintiff alleges: “Defendants, and particularly CHASLE, stalked the Plaintiff and her family and her business associates, vandalized her property, attempted to run her car off the road, and did other acts against her designed to inflict severe emotional distress . . . .” Plaintiff’s fifth cause of action is for negligent emotional distress infliction. Plaintiff alleges, “Defendants knew, or should have known, that their failure to exercise due care in the performance of their duties, and their failure to properly monitor and terminate their renegade employees, such as CHASLE, would cause Plaintiff severe emotional distress.” The sixth cause of action is for negligence in hiring, supervising, retaining and failing to fire Ms. Chasle “despite notice of her” improper activities. Plaintiff further alleges defendants negligently “owned, maintained, controlled, managed, and operated their businesses, so as to cause” injuries to her. The seventh and eighth causes of action are for unfair competition, but no issue has been raised on appeal concerning these claims.

III. DISCUSSION

A. Standard of Review

The Supreme Court has defined our undertaking as follows: “Our task in reviewing a judgment sustaining a demurrer is to determine whether the complaint states facts sufficient to constitute a cause of action. (Hill v. Miller (1966) 64 Cal.2d 757, 759.) We assume the truth of the properly pleaded material facts and the reasonable inferences that may be drawn therefrom. (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 789, fn. 3.) We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42.)” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.)

B. Defendants’ Liability

I. Overview

With the exception of the sixth cause of action, plaintiff premises defendants’ alleged liability on the respondeat superior doctrine or, as to Ms. Chasle, ratification. The sixth cause of action alleges defendants were directly liable in that with knowledge of Ms. Chasle’s tortious conduct they negligently failed to fire her.

2. Respondeat superior

Plaintiff alleged defendants were vicariously liable because Ms. Chasle and Mr. Farr were acting as defendants’ employees and agents. Plaintiff has not alleged a theory of direct liability based on agency. Therefore, we need not consider agency as a theory of direct liability as a separate doctrine. (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1427.) No doubt, the scope of employment for respondeat superior liability purposes is generally a question of fact. But, the scope of employment for respondeat superior liability becomes a question of law when the facts are undisputed and no conflicting inferences are possible. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213.) We find plaintiff’s factual allegations do not support a cause of action based on respondeat superior liability.

As the Court of Appeal noted in Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 393, “The doctrine of respondeat superior is an exception to the general rule that liability follows fault.” (See Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 208.) Our Supreme Court has explained: “Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment. This doctrine is based on ‘“a rule of policy, a deliberate allocation of risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business.”’ (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960, quoting Prosser, Law of Torts (3d ed. 1964) p. 471.)” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.) It is well-established that an employee’s willful, malicious or even criminal act may be committed in the scope of employment. (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1008-1009; Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 296.) But the employer will not be held liable for a subordinate’s intentional tort absent a causal nexus to the employee’s work. (Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 297; Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 656.)

Therefore, it is important to consider the nature of the link between the employment and the tortious act that will cause respondeat superior liability to lie. That connection has been variously described as an act or risk arising or growing out of employment, inherent in it, created by it, or “‘typical or broadly incidental to’” the employer’s enterprise. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003; Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 298; Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968.) Liability should be imposed on the employer only when the injury inflicted is, as a practical matter, of a type sure to occur in the course of the employer’s enterprise. (Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 299; Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 959.) There is no requirement that the employee’s acts be motivated by a desire to serve the employer. (Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 297; Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d at pp. 654-655.) And the required nexus is not “but for” causation; it is not enough that employment brought the tortfeasor and the victim together. (Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 298; Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d at p. 657 [the incident causing injury must be an “outgrowth” of employment].) The wrongful act must be, from the employer’s perspective, a generally foreseeable consequence of the employee’s work; that is, in the context of the particular business, the employee’s conduct “is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s” enterprise. (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 619, quoted in Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 299 and Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at pp. 1003-1004.) Nor must the employee be engaged in the ultimate object of his or her employment at the time of the act in question. (Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at p. 1004; Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139.)

An exception to the general rule of liability exists where the employee has substantially deviated from his or her duties for personal purposes. (Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at pp. 1004-1005; Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968; Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960.) Our Supreme Court has held: “Notwithstanding the generally broad view given to scope of employment determinations, the law is clear that an employer is not strictly liable for all actions of its employees during working hours. Significantly, an employer will not be held vicariously liable for an employee’s malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes. (Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.4th at p. 139; see John R. [v. Oakland Unified School Dist. (1989) 48 Cal.3d 438,] 447; Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960; Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718, 721 . . . .) Thus, if the employee ‘inflicts an injury out of personal malice, not engendered by the employment’ (Carr v. Wm. C. Crowell Co.[, supra,] 28 Cal.2d [at p.] 656) or acts out of ‘personal malice unconnected with the employment’ (Rodgers [v. Kemper Constr. Co.], supra, 50 Cal.App.3d at p. 621), or if the misconduct is not an ‘outgrowth’ of the employment (Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d at p. 657), the employee is not acting within the scope of employment. Stated another way, ‘[i]f an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.’ (Alma W. [v. Oakland Unified School Dist.], supra,123 Cal.App.3d at p. 140.) In such cases, the losses do not foreseeably result from the conduct of the employer’s enterprise and so are not fairly attributable to the employer as a cost of doing business.” (Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at pp. 1004-1005.)

Our Supreme Court reviewed the relevant decisional authority in Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at pp. 1005-1006: “Our review of the case law discloses that an employer may be subject to vicarious liability for injuries caused by an employee’s tortious actions resulting or arising from pursuit of the employer’s interests. [Citations.] Vicarious liability may also be proper where the tortious conduct results or arises from a dispute over the performance of an employee’s duties, even though the conduct is not intended to benefit the employer or to further the employer’s interests. [Citations.] Vicarious liability may even be appropriate for injuries caused after work hours where a dispute arises over the rights and privileges of off-duty employees. [Citation.] In these types of situations, the tortious actions are engendered by events or conditions relating to the employment and therefore are properly allocable to the employer. [¶] Conversely, vicarious liability is deemed inappropriate where the misconduct does not arise from the conduct of the employer’s enterprise but instead arises out of a personal dispute [citation], or is the result of a personal compulsion [citation]. In such cases, the risks are engendered by events unrelated to the employment, so the mere fact that an employee has an opportunity to abuse facilities or authority necessary to the performance of his or her duties does not render the employer vicariously liable. (See Alma W. [v. Oakland Unified School Dist.], supra, 123 Cal.App.3d at p. 140.)”

We turn to the question whether any reasonable inference could be drawn that Ms. Chasle’s or Mr. Farr’s alleged wrongful acts were within the scope of employment. Plaintiff alleges Ms. Chasle gave Mr. Farr personal information. The personal information was about plaintiff and her parents. Plaintiff alleges Ms. Chasle urged Mr. Farr to telephone plaintiff’s home and impart false information about Mr. Carson. It is further alleged Ms. Chasle: watched, followed and threatened plaintiff; had plaintiff’s medical records changed; took out loans in plaintiff’s name; attempted to ruin plaintiff’s finances; ruined plaintiff’s marriage to Mr. Carson; caused plaintiff to lose dance students; and, on one occasion, almost ran plaintiff off the road. There is no specific allegation any of these acts were incident to Ms. Chasle’s employment as an attorney employed by defendants. Moreover, no reasonable inference can be drawn that an attorney employed by entertainment industry related entities would, in the course of employment, personally or through others, harass, stalk, threaten, and otherwise attempt to intentionally injure the wife of a person who was developing projects for television. The risk that an attorney employed by defendants would harass an individual by telling her lies about her husband, following her, changing her medical records, taking out loans in her name, attempting to ruin her business, interfering in her marriage, or attempting to run her off the road is not a risk that is typical of or may fairly be regarded as incident to the entertainment and news related enterprises undertaken by defendants. It was not foreseeable from defendants’ perspective that in the course of their enterprise an employed attorney would behave in the alleged manner. That Ms. Chasle used defendants’ resources to contact Mr. Farr or that she led him to believe she was acting in defendants’ interests does not render them liable. The only reasonable inference given the facts alleged is that Ms. Chasle substantially deviated from her duties as defendants’ attorney for purely personal purposes. Therefore, the first amended complaint fails to allege any cause of action against defendants premised on respondeat superior liability.

3. Negligent Retention Or Ratification

In addition to respondeat superior liability, the sixth cause of action alleges defendants were directly liable for Ms. Chasle’s actions on the theory they negligently retained her in their employment with knowledge of her wrongful conduct. (See Fernelius v. Pierce (1943) 22 Cal.2d 226, 233-234 [negligent retention is a direct liability theory independent of vicarious liability]; accord, Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139-1140.) There may be liability under these circumstances when the employer knew or should have known the retention created a particular risk of harm and that harm materializes. (Phillips v. TLC Plumbing, Inc., supra, 172 Cal.App.4th at pp. 1139-1140; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837; Rest.3d, Agency, § 7.05.) Negligent retention is generally a question of fact, but it may be determined as a matter of law on undisputed facts. (Doe v. Capital Cities, supra, 50 Cal.App.4th at pp. 1054-1055 [complaint failed to allege negligent hiring];see Delfino v. Agilent Technologies, Inc., supra, 145 Cal.App.4th at p. 818, fn. 35 [summary judgment]; Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214 [summary judgment].)

The first amended complaint also alleges defendants ratified Ms. Chasle’s harmful acts by failing to fire her. A principal or employer may be liable for an agent’s or employee’s tortious conduct if it either authorized the act or subsequently ratified an originally unauthorized tort. (Civ. Code, §§ 2307,5 23396; Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73; Delfino v. Agilent Technologies, Inc., supra, 145 Cal.App.4th at p. 810; Rest.2d, Agency, § 218; see CACI No. 3710 (2010).) The failure to discharge an employee after knowledge of his or her wrongful conduct may be evidence of ratification. (Delfino v. Agilent Technologies, Inc., supra, 145 Cal.App.4th at p. 810; Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852; Coats v. Construction & Gen. Laborers Local No. 185 (1971) 15 Cal.App.3d 908, 914.) As the Court of Appeal has explained, “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort . . . .” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169-170; accord, C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.)

We conclude the facts as plaintiff has alleged negate liability under a negligent retention or a ratification by failure to fire theory. The first amended complaint alleges Mr. Carson first contacted defendants about Ms. Chasle’s harassment and interference with his “contractual rights” on May 5, 2004. Knowledge Ms. Chasle was interfering with the Deadbeat Dads and other of Mr. Carson’s projects does not equate to knowledge she might intentionally harm plaintiff or other members of his family. (Doe v. Capital Cities, supra, 50 Cal.App.4th at pp. 1054-1055; see 29 Cal.Jur.3d, Employer and Employee, § 149 [“[f]or an injury to be foreseeable, or for the intentional tort of an employee to be foreseeable, for the purpose of respondeat superior liability, the employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought”].) As the Court of Appeal observed in Doe v. Capital Cities, supra, 50 Cal.App.4th at page 1055, “[T]he cornerstone of a negligent hiring[, supervision or retention] theory is the risk that the employee will act in a certain way and the employee does act in that way.” It was not until February 4, 2005, during the meeting with the private investigators, defendants’ security personnel and Ms. Chasle’s immediate supervisors, that they advised defendants about the problems plaintiff’s family were confronting. Mr. Kent provided additional information to defendants in the ensuing month—on February 15, 17, 24 and 25. It was not until March 2, 2005, that Mr. Farr first telephoned plaintiff’s home. On March 4, 2005, Mr. Carson and others met with defendants’ “Human Resources and Legal” regarding the incidents that had occurred since the prior meeting. On March 10, 2005, defendants were for the first time told about Mr. Farr’s telephone calls to plaintiff. Defendants were also advised of the telephone calls to plaintiff’s mother. Shortly thereafter, in April or May 2005, defendants fired Ms. Chasle. Given these facts, no reasonable jury could conclude defendants negligently retained Ms. Chasle or they ratified her actions or those of Mr. Farr toward plaintiff. Upon notice Ms. Chasle was engaging in harassing and stalking conduct aimed at Mr. Carson’s family, defendants twice met with both him or his representatives and within months fired her. (Compare, e.g., C.R. v. Tenet Healthcare Corp., supra, 169 Cal.App.4th at p. 1112.) The alleged facts do not support a negligent retention or ratification by failure to fire theory of liability.

C. Leave to Amend

The standard of review on appeal with respect to leave to amend is firmly established: “On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. (Code Civ. Proc., § 472c; E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497.) If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)” (Hendy v. Losse (1991) 54 Cal.3d 723, 742; accord, Reynolds v. Bement, supra, 36 Cal.4th at p. 1091; Campbell v. Regents of the University of Cal. (2005) 35 Cal.4th 311, 320; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Plaintiff has not met her burden. She does not argue the trial court’s denial of leave to amend as to any specific cause of action was error. She has not explained how the defects in the pleading can be cured by amendment. We find no abuse of discretion in denying leave to amend.

IV. DISPOSITION

The judgment is affirmed. Defendants, Fox Entertainment Group, Inc., Fox News Network, LLC, News America Incorporated and Twentieth Century Fox Film Corporation, are to recover their costs on appeal from Deborah L. Peterson in her capacity as the bankruptcy trustee.

TURNER, P.J.

We concur:

KRIEGLER, J. FERNS, J.