McKinney v. County of Santa Clara

Facts

The discharge. The litigation “arises out of the termination of appellant’s employment as a probationary deputy sheriff by respondent County of Santa Clara on June 18, 1976.” (McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 792.)

Two lawsuits. McKinney filed the first action on December 29, 1976, pleading libel, slander and wrongful dismissal. The county generally demurred on February 16, 1978 on the ground that the complaint failed to allege presentation of a notice of claim under the Government Tort Claims Act (Gov. Code, §§ 905, 911.2, 945.4, 950.2). The demurrer was sustained without leave to amend, judgment was entered March 13, 1978, and “[n]o appeal was taken by appellant.” (McKinney, supra, 110 Cal.App.3d at p. 792.)

On April 10, 1978 he filed the second action, “substantially identical to the one filed in the first action,” except that it alleged he had submitted a written claim to the county board of supervisors on November 15, 1977, and that the defamatory statements “were republished to a third person on or about June 1977 and November 3, 1977.” The county answered, denying only the republication allegations, and asserted res judicata as its first affirmative defense. (McKinney, supra, 110 Cal.App.3d at p. 792.)

The admission that made the case. At the hearing on the county’s motion to dismiss, the court questioned McKinney — appearing in propria persona — about the republications. He answered that “he himself had republished the alleged defamatory statements by divulging their substance to police departments at which he applied for a job as a police officer,” explaining that the statements “were made by respondents in reviewing his job performance and formed the basis for his dismissal,” and that his republication “was not voluntary but, rather, required of him as a practical matter by the police agencies at which he applied for a new job.” (McKinney, supra, 110 Cal.App.3d at pp. 792–793.) That candid admission is what the trial court used to dismiss the claims, and what the Court of Appeal used to revive them.

Procedural history

The county’s motion to dismiss was granted on June 2, 1978. The trial court ruled that the first judgment barred all claims in the second action except the libel and slander counts based on the June 1977 and November 3, 1977 republications, and that those counts “were without merit in light of appellant’s admission that he himself had republished the defamatory statements.” (McKinney, supra, 110 Cal.App.3d at p. 793.)

The procedural posture is not what it appears. Before reaching the merits the court corrected the vehicle: the county had brought a “speaking motion” supported by declarations, and such motions “have been superseded by the procedures governing motions for summary judgment contained in Code of Civil Procedure section 437c.” A speaking motion to dismiss “is treated as a motion for summary judgment in order to preserve the safeguards provided by section 437c.” (McKinney, supra, 110 Cal.App.3d at p. 793, citing Vesely v. Sager (1971) 5 Cal.3d 153, 167–169, and Pianka v. State of California (1956) 46 Cal.2d 208, 211–212.) The applicable standard is therefore the summary judgment standard: the moving party’s affidavits are “strictly construed” and the opponent’s “liberally construed,” and “doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Id. at p. 794, quoting Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417; the block quotation begins at p. 793 and the words reproduced here fall on p. 794.) Every substantive conclusion that follows is a summary judgment conclusion, not a merits determination.

McKinney raised three contentions: that the first action did not bar the second; that defamation may be predicated on a foreseeable republication by the person defamed; and that the court failed to consider his wrongful dismissal cause of action before dismissing the whole complaint. (McKinney, supra, 110 Cal.App.3d at p. 793.)

Issue

Whether “a cause of action for defamation may be predicated upon a foreseeable republication of the defamatory statements by the person defamed” — a question the court described as “a question of first impression in this state.” (McKinney, supra, 110 Cal.App.3d at pp. 793, 795.) Two subsidiary questions: whether a judgment entered on a general demurrer for failure to allege claim presentation bars a later action that alleges an untimely claim, and whether the plaintiff was denied due process as to his wrongful dismissal count. (Id. at pp. 793–795, 798.)

Holding

Reasoning

1. The competing rules. McKinney relied on the settled principle, drawn from DiGiorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268, 273, that “ordinarily the originator of the defamatory matter is also liable for each such repetition if he could reasonably have foreseen the repetition.” (McKinney, supra, 110 Cal.App.3d at p. 795.) The county relied on the equally settled rule “that where the person defamed voluntarily discloses the contents of a libelous communication to others, the originator of the libel is not responsible for the resulting damage,” citing Shoemaker v. Friedberg (1947) 80 Cal.App.2d 911, and argued that McKinney “should not be allowed to complain of injuries caused by his own act of making the defamatory material public.” (Id. at p. 796.) The case turns on the word voluntarily.

2. Borrowing an established exception. “Though California has never addressed this question, it has been addressed by several other jurisdictions,” and those courts “have developed a well recognized exception to the general rule respondents refer to,” holding the originator liable “for damages caused by the disclosure of the contents of the defamatory statement by the person defamed where such disclosure is the natural and probable consequence of the originator’s actions.” (McKinney, supra, 110 Cal.App.3d at p. 796.) The court identified two contexts in which the exception had been applied: where the originator has reason to believe a letter containing a libel will reach a third party before the defamed person reads it, and where the originator has reason to believe the defamed person “will be under a strong compulsion to disclose the contents of the defamatory statement to a third person after he has read it or been informed of its contents.” (Ibid.) The second context is McKinney’s.

3. The two analogous cases. In Colonial Stores v. Barrett (1946) 73 Ga.App. 839, a discharged employee covered by the War Manpower Regulations was given a “restricted statement of availability” that he had to present to prospective employers, who then refused to hire him. The Georgia court held for the employee, reasoning “that the original printing of the libel was deemed a publication of the libel when the printed matter was delivered to the plaintiff with the expectation that it would be read by third parties, and such result followed.” (McKinney, supra, 110 Cal.App.3d at p. 797.) In Grist v. Upjohn Company (1969) 16 Mich.App. 452, a discharged employee alleged — as McKinney did — that her employer gave false and defamatory reasons for her discharge that “were necessarily and forseeably repeated by her to prospective employers upon their questioning her regarding her past employment.” The Michigan court affirmed an instruction permitting a finding of publication even though the statements were made only to the plaintiff, holding that where the utterer “intends or has reason to suppose that in the ordinary course of events the matter will come to the knowledge of some third person,” a publication may be effected. (Id. at p. 797.)

4. The causal-link rationale. “The reasoning of these cases is compelling.” The court did not create a new tort; it applied the existing foreseeable-republication principle by identifying what actually justifies it — causation. Liability rests on “the strong causal link between the actions of the originator and the damage caused by the republication,” and that link “is no less strong” when the republisher is the defamed person acting under compulsion, provided “the circumstances which create the strong compulsion are known to the originator . . . at the time he communicates it to the person defamed.” (McKinney, supra, 110 Cal.App.3d at pp. 797–798.) The temporal qualifier is the doctrine’s principal limit: knowledge acquired later will not do.

5. What the court actually decided about this record. The holding is expressed in the negative and in summary judgment terms. McKinney’s oral admission, “relied upon and accepted as true by the superior court for the purposes of ruling upon the motion,” indicated three things: that the county communicated the statements “under circumstances which placed appellant under a strong compulsion to disclose”; that disclosure “was reasonably foreseeable by respondents”; and that he “actually made such disclosures.” “This is sufficient to create a triable issue.” (McKinney, supra, 110 Cal.App.3d at p. 798.) The county was right that the complaint never alleged foreseeability, but the remedy is amendment, because “on a motion for summary judgment, considerable liberality should be used by the trial court in allowing amendments which do not completely and entirely depart from the general area of the cause set up in the pleadings.” (Ibid., quoting Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 128.)

6. Res judicata swallowed the rest. The court applied the standard elements — a final judgment, on the same cause of action, between the same parties, adjudicating the merits — and then the general demurrer rule: such a judgment bars a new action “in which the complaint states the same facts which were held not to constitute a cause of action on the former demurrer or, notwithstanding differences in the facts alleged, when the ground on which the demurrer in the former action was sustained is equally applicable to the second one.” (McKinney, supra, 110 Cal.App.3d at p. 794, citing Keidatz v. Albany (1952) 39 Cal.2d 826, 828.) Alleging the November 15, 1977 claim did not cure the original defect, because section 911.2 requires presentation within 100 days of accrual and the claim came “over one year after the claims to which the trial court applied the doctrine of res judicata accrued.” (Id. at p. 795.)

The wrongful dismissal count could not be saved by the argument, raised for the first time on appeal, that the claim-presentation requirements reach only actions for money or damages — an argument the court called “perplexing” since neither complaint prayed for anything but monetary damages, and in any event irrelevant because “an erroneous judgment is as conclusive as a correct one” for res judicata purposes. (McKinney, supra, 110 Cal.App.3d at p. 795, citing Weil v. Barthel (1955) 45 Cal.2d 835, 839.) Nor could McKinney attack the first judgment now: he “had an opportunity to appeal the judgment entered in the former action, but failed to do so.” (Id. at p. 799.)

Significance

McKinney is the origin of compelled self-publication defamation in California and is still the case cited for the doctrine’s elements, though it is no longer the only one applying them. Its structure is worth stating precisely, because the doctrine is often described more loosely than the opinion supports. The court required that the compulsion be strong, that the republication be foreseeable, and — the element most often omitted in summary — that the circumstances creating the compulsion be known to the employer at the time it made the statement. (McKinney, supra, 110 Cal.App.3d at pp. 797–798.) An employer that learns only later that its former employee will have to explain the discharge is outside the holding as written.

The second limit is procedural. This is a reversal of a dismissal treated as summary judgment, on a record consisting largely of the plaintiff’s own oral admission. The court said the claims “are not without merit and should not have been dismissed” and that the showing was “sufficient to create a triable issue” — and it directed that the plaintiff be allowed to amend to plead foreseeability, which the complaint had omitted. (McKinney, supra, 110 Cal.App.3d at p. 798.) Nothing was decided about whether the statements were false, defamatory, privileged, or damaging.

Third, the opinion is a reminder that in public-employee cases the claim-presentation requirements can end the case before any of this matters. McKinney lost his wrongful dismissal and original defamation claims not on their merits but because the first complaint omitted a Tort Claims Act allegation, the demurrer was sustained without leave, and no appeal was taken. (McKinney, supra, 110 Cal.App.3d at pp. 792, 794–795.)

Currency. Four things a practitioner should know before citing this 1980 decision.

First, the doctrine is alive and has a Judicial Council instruction. CACI No. 1708, “Coerced Self-Publication” (2026 ed.), tracks McKinney’s structure and carries the timing element expressly: the plaintiff must prove “[t]hat when [name of defendant] made the statements, [he/she] should have known that [name of plaintiff] would be under strong pressure to communicate them to another person.” The instruction’s Sources and Authority quote McKinney at pages 797–798 [168 Cal.Rptr. 89], by way of Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 373. Confirm the current edition’s text before reading it to a jury.

Second, there is a real limit, and it is not in this opinion. Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1285, describes the exception this way: “This exception has been limited to a narrow class of cases, usually where a plaintiff is compelled to republish the statements in aid of disproving them.” Expect that sentence in every opposition. It is not inconsistent with McKinney — a police applicant answering a background investigator is squarely within it — but it forecloses the loose version of the doctrine under which any embarrassing re-telling becomes the employer’s publication.

Third, McKinney is not the only case to cite. The doctrine has been applied in the modern era; see, for example, Tilkey v. Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 542 (review denied). Cite McKinney for the origin and the elements, and a recent application for the proposition that the theory is still being litigated.

Fourth — and this is the one that matters right now — the California Supreme Court has the adjacent question under review. In Hearn v. Pacific Gas & Electric Co. (2025) 108 Cal.App.5th 301, the Court of Appeal set aside a defamation verdict for a terminated employee, and the Supreme Court granted review on May 14, 2025 (S289581), limiting review to a single issue: whether a terminated employee may bring a defamation claim against a former employer where the defamation allegedly contributed to the reasons for the termination, or must instead proceed on a wrongful discharge theory. The matter remained pending as of the Court’s “Issues Pending — Civil” compilation current to September 4, 2026. Under California Rules of Court, rule 8.1115(e)(1), the Court of Appeal opinion has no binding or precedential effect while review is pending, may be cited for potentially persuasive value only, and any citation to it must note the grant of review. A decision in Hearn could reshape the boundary between a defamation claim and a wrongful-discharge claim that this doctrine sits on. Nothing in this piece should be relied on without checking where Hearn stands.

No California decision has disapproved, depublished, or declined to follow McKinney itself. Run a current citator before citing it anyway.

Key quotes

“This causal link is no less strong where the foreseeable republication is made by the person defamed operating under a strong compulsion to republish the defamatory statement and the circumstances which create the strong compulsion are known to the originator of the defamatory statement at the time he communicates it to the person defamed.” (McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 797–798.)

“Though California has never addressed this question, it has been addressed by several other jurisdictions.” (Id. at p. 796.)

“Accordingly, appellant’s causes of action for libel and slander based upon the alleged republications of June 1977 and November 3, 1977, are not without merit and should not have been dismissed.” (Id. at p. 798.)

“This is sufficient to create a triable issue.” (Id. at p. 798.)

Read the full opinion (CourtListener) →

Practice pointer

Open questions

What makes compulsion “strong.” The court derived the element from the facts before it — a law enforcement applicant questioned by hiring agencies — without defining the threshold. (McKinney, supra, 110 Cal.App.3d at pp. 792–793, 797–798.) Whether ordinary employment applications that ask why the applicant left a prior job create the same compulsion is not addressed.

Privilege. The opinion resolves publication only. It says nothing about whether the common interest privilege, truth, or any other defense would defeat the revived claims on remand — all of which remained open, since the court held only that the claims were “not without merit.” (McKinney, supra, 110 Cal.App.3d at p. 798.)

Whether the employer’s knowledge must be of this employee’s circumstances. The holding requires that “the circumstances which create the strong compulsion are known to the originator . . . at the time he communicates it.” (McKinney, supra, 110 Cal.App.3d at pp. 797–798.) Whether general knowledge of industry hiring practices suffices, or whether the employer must know this employee intends to seek similar work, is unresolved.

The reach beyond employment. Both borrowed cases and this one arise from discharges, and the court framed the second context in general terms about defamatory statements. (McKinney, supra, 110 Cal.App.3d at p. 796.) Whether the doctrine extends outside the employment setting is not decided.