Opinion
For Opinion on Hearing, see 55 Cal.Rptr. 401, 421 P.2d 409.
Levy, DeRoy, Geffner & Van Bourg, Victor J. Van Bourg, San Francisco, for appellant.
Sabraw & Avera, Fremont, for respondents.
SHOEMAKER, Presiding Justice.
Plaintiff Nellie Bagley appeals from a judgment dismissing her 'First Amended and Supplemental Complaint for Injunction and Writ of Mandate' upon the sustaining of a demurrer without leave to amend.
Plaintiff's notice of appeal, which refers to a judgment dismissing her complaint, was actually premature, since it was filed at a time when no judgment of dismissal had been entered and the trial court had merely sustained the demurrer without leave to amend and signed an order to that effect. It now appears, however, that a judgment of dismissal has been entered. Under such circumstances, the notice of appeal may, under Rule 2(c) of the California Rules of Court, be treated as filed immediately after entry of the judgment. (Hohn v. Hohn (1964) 229 Cal.App.2d 336, 40 Cal.Rptr. 125.)
Plaintiff's complaint purports to set forth three separate 'causes of action' against defendants Washington Township Hospital District and Robert Taylor, the hospital administrator. Pursuant to the first count of her complaint, plaintiff alleged that she was employed as a nurses' aide by defendant hospital district for some time prior to March 18, 1964; that during the same period she was a member of a committee composed of numerous persons who were seeking to recall from office certain of the directors of defendant hospital district; that plaintiff had rendered satisfactory service during the period of her employment and that her activities in connection with the recall committee were performed on her own time without interference to her employment; that defendant hospital district was organized under Division 23 of the Health and Safety Code and at no time had a civil service, personnel or merit system covering its employees; that on February 5, 1964, defendant hospital district, by and through its board of directors, instructed defendant Taylor to notify employees that participation in any political activity for or against any candidate or ballot measure pertaining to defendant hospital district was unlawful and constituted grounds for disciplinary action and/or dismissal; that on February 7, 1964, defendant Taylor distributed to all employees of defendant hospital district a memorandum advising them of the board's decision and further advising them that such conduct was prohibited by Government Code, section 3205; that on March 17, 1964, the assistant hospital administrator, who was acting as the agent of defendant hospital district, advised plaintiff that if she did not resign from the recall committee and cease all activities in connection therewith, she would be discharged from employment on Plaintiff prayed for a temporary restraining order, a preliminary injunction, and a permanent injunction prohibiting defendants and their agents from falsely representing to employees that their participation in a political activity such as the recall committee was unlawful and from dismissing or taking any disciplinary action against any employee by reason of such employee's participation in the activities of the recall committee. Plaintiff also sought a money judgment for lost wages and punitive damages in the amount of $25,000.
Pursuant to the second count of the complaint, plaintiff incorporated the factual allegations of the first count and further alleged that the subject of the action was one of general interest to all members of the recall committee who were employees of defendant hospital district; that such members were numerous and that plaintiff was therefore bringing the action for their benefit as well as her own; that defendants, by falsely representing and causing such employees to believe that membership on or participation in the activities of the recall committee was unlawful and by intimidating and coercing such employees through unlawful dismissal from employment, were tending and attempting to deprive said recall committee of the active participation of such employees and of its right to freely associate with them and to discuss with them the issues involved in the recall proceeding; that unless a temporary restraining order and preliminary injunction were issued, great and irreparable damage would result to plaintiff by reason of the above-mentioned deprivations.
In the third count of the complaint, plaintiff again incorporated the factual allegations of the first count and further alleged that she had consistently maintained that section 3205 of the Government Code was unconstitutional, in that it arbitrarily and discriminatorily prohibited the exercise of virtually the entire range of political freedoms guaranteed by the federal and state Constitutions and was vague and uncertain on its face and as applied to plaintiff by defendants; that she was being deprived of her constitutional rights day by day and had no plain, speedy or adequate remedy. Plaintiff prayed for a writ of mandate directing defendants to set aside their action dismissing plaintiff from her position and for such other and further relief as might be just and proper.
Defendants demurred to the complaint both generally and specially, basing their general demurrer upon the dual grounds that none of the three counts of the complaint were sufficient to state a cause of action and that the court lacked jurisdiction over the subject matter of all three counts. The court sustained the general demurrer without leave to amend on both the grounds urged in support thereof, and denied plaintiff's application for a preliminary injunction and peremptory writ of mandate.
The sole question presented is whether the complaint is sufficient to state at least one cause of action. The determination of this question would appear to be complicated by the fact that plaintiff has sought a number of remedies by her complaint and has prayed for relief both temporary and permanent, and both injunctive and monetary. However, there is a crucial distinction between a cause of action, which is simply the obligation sought to be enforced, and the remedy, which is the means by which such obligation is effectuated. (Smith v. Minnesota As has been stated in South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 739-740, 38 Cal.Rptr. 392, 400, 'The essence of a cause of action is the existence of a primary right and one violation of that right, 1. e., it arises out of an antecedent primary right and corresponding duty, and a breach of such primary right and duty by the person upon whom that duty rests. * * * [I]f the action is brought to enforce a single right violated by the defendant, the complaint states but one cause of action regardless of the number of types of relief sought and notwithstanding that it alleges several theories of recovery.'
Viewing the complaint reduced to its essential allegations, we observe that defendants are charged solely with having dismissed plaintiff from her position as nurses' aide because of her refusal to discontinue her membership and participation in the activities of the recall commission and with having threatened to take similar action against other employees of defendant hospital district; and further, that plaintiff has utterly failed to allege that defendants were under any duty to refrain from such conduct, but on the contrary, has affirmatively alleged facts which directly refute any such duty either to plaintiff or other employees similarly situated.
We turn to the complaint, which specifically alleges that defendant hospital district was organized and existing under and by virtue of Division 23 of the Health and Safety Code and at no time had a civil service, personnel or merit system covering its employees. We next turn to section 32121 of Division 23 of the Health and Safety Code, which enumerates the powers of local hospital districts and provides in pertinent part that 'Each local hospital district shall have and exercise the following powers: * * * (g) To employ such officers and employees * * * as the board of directors deems necessary to carry on properly the business of the district; (h) To prescribe the duties and powers of the hospital administrator, secretary and other officers and employees of any such hospitals; to determine the number of and appoint all such officers and employees, and to fix their compensation, which said officers and employees shall hold their officers or positions at the pleasure of said boards.' (Emphasis supplied.)
It has long been the law of this state that an employee who holds his position at the pleasure of the appointing power may be discharged at any time and without notice, hearing or cause. (People ex rel. Attorney General v. Hill (1857) 7 Cal. 97; Smith v. Brown (1881) 59 Cal. 672; Higgins v. Cole (1893) 100 Cal. 260, 34 P. 678; Patton v. Board of Health, etc. (1899) 127 Cal. 388, 59 P. 702; Sponogle v. Curnow (1902) 136 Cal. 580, 69 P. 255; Matter of Carter (1903) 141 Cal. 316, 74 P. 997; Farrell v. Board of Police Commissioners, etc. (1905) 1 Cal.App. 5, 81 P. 674; Boyd v. Pendegast (1922) 57 Cal.App. 504, 207 P. 713; Decker v. Board of Health Commrs., etc. (1935) 6 Cal.App.2d 334, 44 P.2d 636; Hackler v. Ward (1951) 105 Cal.App.2d 615, 234 P.2d 170; Cozzolino v. City of Fontana (1955) 136 Cal.App.2d 608, 289 P.2d 248; Oxley v. County of Orange (1964) 228 Cal.App.2d 620, 39 Cal.Rptr. 697.)
The reason behind this rule is aptly expressed in Matter of Carter, supra, at page 320, 74 P. at page 998, where that court pointed out that 'in creating an office the government can impose such limitations and conditions with respect to its duration and termination as may be deemed best, and * * * in such a case the incumbent takes the office subject to the conditions which accompany it. It may always be terminated in such manner and by such means as are prescribed by the law which created it. * * * [T]he officer takes with knowledge of the condition, and if he is removed in strict accordance with the law it is no objection to the validity of the removal to say that it was done without notice or Hackler v. Ward, supra, is strikingly similar to this action. There, plaintiff filed a complaint for damages resulting from his wrongful removal from the office of police chief, alleging that such removal had been effected fraudulently, wrongfully, unlawfully, maliciously, without cause to do so, without notice of the preference of charges against him, and without a hearing of any kind. The court held that the sustaining of a general demurrer was entirely proper, since plaintiff was employed during the pleasure of the appointing power and such employment was accordingly subject to termination at any time and without notice.
In the instant case, plaintiff and the other employees of defendant hospital district similarly held their positions at the pleasure of the hospital district board and their employment was thus terminable by said board at any time without notice or cause. It is apparent that if an employee may lawfully be discharged without notice or cause, he states no better case by alleging, as did plaintiff, that the board did notify the hospital district employees of the grounds which would constitute 'cause' for dismissal; and this is so even if such 'cause' was, as alleged, an unreasonable infringement of the employees' constitutional rights. An officer or employee of a governmental office acquires a right to tenure only by virtue of the civil service, merit or other personnel rules covering such employment. Therefore, the limit of the right to such employment is the cause stated in such rules 'and not the limit of constitutional rights guaranteed to individuals generally.' (Pranger v. Break (1960) 186 Cal.App.2d 551, 557, 9 Cal.Rptr. 293, 297.)
We are agreed that plaintiff's complaint does not state a cause of action and that it cannot be amended to do so.
The judgment is affirmed.
AGEE and TAYLOR, JJ., concur.