Opinion
Hearing Granted May 25, 1960.
Opinion vacated 11 Cal.Rptr. 97
Barnett & Robertson, Rodney Robertson, San Francisco, for appellant.
Keith C. Sorenson, Dist. Atty., L. M. Summey, Deputy Dist. Atty., Redwood City, for respondents.
DEVINE, Justice pro tem.
Plaintiff appeals from a judgment in favor of all defendants which was based on an order sustaining a demurrer without leave to amend. The demurrer was to the original complaint. The defendants are a school district, trustees of the school district, a county superintendent of schools, and the district attorney, some being sued as officials, others as individuals, others in both capacities. There is a brief statement of the decision of the court as follows: 'The immunity from civil liability appearing on the face of the Complaint the Demurrer must be sustained without leave to amend.'
The complaint purports to state six causes of action, but three of these, the second, fourth and sixth, simply state that actions of certain defendants which are described in the other causes were done maliciously, and contain demands for punitive damages. The fifth cause, too, relates solely to damages, namely, loss of future earnings. The gravamen of plaintiff's contentions, then, appears in the remaining causes, the first and third, and the court's task is limited to deciding whether either of these states a cause of action or, if neither does, whether it was error to sustain the demurrer without leave to amend.
Plaintiff was employed by defendant Brisbane Elementary School District first as teacher, then as principal, and finally as school district superintendent, during the years from 1931 to 1958. In 1958 the district executed a new contract, employing
On June 27, 1958, plaintiff filed a claim against the school district and its trustees for damages 'due to the total breach and repudiation of her contract of employment by the official action and wilful course of conduct of the majority of the Board of Trustees rendering it impossible for her to perform said contract of employment.' The claim was not acted on within 30 days, and plaintiff deemed it rejected and commenced the action.
In the paragraphs following this one, we shall give the specification of charges made against the various defendants, in the best arrangement we can make of them, for they are spread over several pages of the complaint, and many of them are repeated in the several causes. In summary, all of these charges put together state that the defendants conspired to make it impossible for plaintiff to perform her contract with the school district, that they made defamatory statements against her, that they engaged in harassing conduct, and that they succeeded, by ruining her usefulness, in preventing her from carrying on her contract. This was done, according to the complaint, with malice on the part of the individual defendants. Damages, actual and exemplary, are demanded.
I. Charging Allegations of the Complaint.
Conformably with the law relating to demurrer, we accept, for present purposes, all of the following allegations as true.
A. Against the trustees of the school district.
Under this heading we give the charges against the trustees, with the exception of those charges in which the district attorney or the county superintendent are joined with the trustees, and which are under separate headings. It is alleged that three of the school trustees conspired to make it impossible for plaintiff to perform her duties and that they took these means of accomplishing their purpose: (a) They held secret meetings attended by school employees, including the principal of the school, at which they stated that plaintiff: (1) had suppressed facts from the board of trustees; (2) had suppressed, tampered with minutes of board meetings; (3) was receiving 'kickbacks' from school employees; (4) had used school employees and school time to engage in political campaigns; (5) had ordered school employees to pay certain attorneys' fees which had been incurred in a dispute with an extralegal committee which apparently had interested itself in school affairs; (6) was engaged in 'shady dealings' concerning the school district, for her personal profit. (b) Said trustees caused to be circulated and to be published in the public press statements that plaintiff: (1) was dictatorial; (2) had concealed facts from the board; (3) was overpaid; (4) was dishonest, and (5) had received 'kickbacks' from school employees. (c) The trustees urged the district attorney and the county superintendent of schools to conduct an investigation of plaintiff's administration, stating that they were desirous of discovering charges so that plaintiff could be discharged, and they caused an architect and certain contractors to be informed that the grand jury was investigating plaintiff's use of construction funds, although no such grand jury investigation was going on. (d) Said trustees told plaintiff she should resign and informed the public that they had so told plaintiff. (e) Said trustees bypassed plaintiff and counseled with school employees on business which was within plaintiff's duties. (f) Said trustees urged that the public come to school board meetings for the purpose of preventing plaintiff Following this specification of charges, there are allegations that all of the acts were done by the three trustees as a majority of the board and in the scope of their duties, that they were done for the purpose of inducting plaintiff to break her contract or to render it impossible for her to perform her duties, and that the conduct of the trustees so maligned plaintiff's reputation, character, and integrity and so undermined her reputation with other employees of the school district as to render it impossible for plaintiff to perform her duties.
B. As to the school district.
At the end of the above allegations it is alleged that 'therefore said Contract of Employment has been totally breached by said School District.'
All of the allegations set forth above appear in the first cause of action. The school district is named as a defendant in that cause.
C. as to the county superintendent of schools.
In the third cause of action, the three trustees who were named in the first cause are named again. There is some repetition of charges against them, but for the most part, the third cause describes acts of the trustees in conjunction with the county superintendent and with the district attorney. It is alleged that: (a) The three trustees held secret meetings at which they announced that they were going to 'dig up' whatever facts they could to effect plaintiff's discharge; (b) They met with the superintendent, Tormey, and agreed to re-open criminal proceedings against plaintiff; (c) Tormey caused a member of his staff to inform an architect, contractors and a bonding firm that there was a grand jury investigation of sums spent on school construction, though there was no such grand jury investigation; (d) Tormey caused inquiry to be made of the architect about the figures on school construction, saying that the trustees thought there was something 'fishy' about the construction contract, and implying that plaintiff was participating in the architect's fee.
As in the first cause, it is alleged that these acts were done for the purpose of rendering it impossible for plaintiff to perform under the contract, and that the acts did so render it impossible, because of conflicts with the public and loss of confidence and support of school principal and teachers.
D. As to the district attorney.
The charges against the district attorney also are in the third count. It is alleged that following a meeting with the three trustees and Tormey, the district attorney, acting through his deputies: (a) conducted an investigation, not only of the brisbane School District, but also of the Bayshore School District, where plaintiff also was Here, again, it is alleged that all of the acts were done in pursuance of a conspiracy to make it impossible for plaintiff to perform her contract and that the conspiracy accomplished its end.
II. The Complaint as Directed Against the School District.
Plaintiff, appellant, does not attempt to sustain her cause against the school district as an action sounding in tort. A school district is immune to delictual actions, except in those limited cases in which the Legislature has permitted such actions.
Appellant contends that she states a cause of action against the school district based upon breach of contract. For, although she does not allege performance on her part (and her counsel states frankly that she did not render any performance), she alleges that she was prevented from performing by the many acts described above. Appellant contends that essentially the first cause of action, then, is upon contract.
Preliminarily, it may be remarked that this contention is entirely at odds with the position Taken by plaintiff in the superior court, for in an elaborate 'memorandum in opposition to demurrer,' in answering the point made by the defense of improper joinder of causes of action, counsel for plaintiff says: 'The First Cause of Action is stated against the Brisbane Elementary School District as an entity in tort' (italics is not ours, but counsel's), and 'each of the counts of this Complaint sound in tort,' and 'Apparently the defendants confuse the First Cause of Action as sounding in contract. * * *' The court hardly could do otherwise than treat the first cause as a tort action.
Further indications that the first cause sounds in tort are: (1) that the defendant trustees sued are not the whole board of trustees, as would be proper in a contract action, but the three trustees who are alleged to have prevented the performance, and (2) punitive damages were demanded, not only against the trustees, but, in the second cause, expressly against the school district, and punitive damages cannot be had in an action for breach of contract, even though malice is present. Haigler v. Donnelly, 18 Cal.2d 674, 117 P.2d 331.
Counsel for appellant argues that the first cause does, nevertheless, contain the ingredients of an action of contract, and that his error in describing it as sounding in tort, in the superior court, should be overlooked. He urges that the doctrine of 'invited error' should not apply when a demurrer to an original complaint has been sustained without leave. However, if we were to disregard appellant's protestations before the court below to the effect that the cause sounds in tort, and if we were to regard the complaint as containing allegations that plaintiff would have been willing, ready and able to perform the contract had she not been prevented from performing (allegations which are not explicitly stated, but which may be inferred for present purposes), we do not regard the complaint as having stated a cause of action against the school district.
It is true that each party to a contract has a duty to do everything that the contract presupposes will be done in order to accomplish its purpose and that a party who prevents fulfillment commits a breach of contract. Pacific Venture Corporation v. Huey, 15 Cal.2d 711, 717, 104
Sovereign immunity is a jurisdictional matter. People v. Superior Court, 29 Cal.2d 754, 756, 178 P.2d 1, 40 A.L.R.2d 919. No cause of action was stated, or could be stated, against the school district under the facts.
III. The Complaint as Directed Against the Officials.
Turning to the causes of action as they are directed towards the school officials, we divide our discussion into three parts: A. The legal principles relating to immunity of officials, and B. Application of those principles to the alleged acts of school officials, and C. Application of those principles to the alleged acts of the district attorney.
A. applicable Legal Principles Relating to Officials' Immunity.
(1) The doctrine of civil immunity is an established one. It serves to make it possible for competent and conscientious citizens to accept appointments to public office, often without compensation, untroubled by fear of vexatious, costly and, perhaps, ruinous lawsuits which disaffected persons may bring against them. During the term of office, it conserves for the public benefit the time, energy and peace of mind which could be lost to the officer if he were allowed to be pursued by even one incensed and tenacious litigant. Admittedly, the doctrine may allow some overbearing or malicious officials to escape the imposition of damages which would have been awarded against them had the same persons been engaged in private activities, but as Judge Learned Hand pointed out in the case, of Grogoire v. Biddle, 2 Cir., 177 F.2d 579, 581, there had to be a choice between the evils inevitable in either alternative, and 'it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.'
This does not mean that an unscrupulous official acts with complete impunity. The tide of public opinion may run against him. Soon or late, removal from office impends. Meanwhile, remedies under administrative law often are available, and the use of the extraordinary writs (2) Since it is desirable under our concept of immunity that the official who comes within the immunity be protected against the distress of litigation, it is appropriate that a complaint, either original or amended, which alleges only actions which are cloked by immunity, should be brought to its end by an order sustaining a demurrer without leave, as not stating facts sufficient to state a cause of action. Thus, the immunity doctrine terminated the actions at the pleading stage in: Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494, 66 A.L.R.2d 739; White v. Towers, 37 Cal.2d 727, 235 P.2d 209, 28 A.L.R.2d 636; Reverend Mother Pauline v. Bray, 168 Cal.App.2d 384, 335 P.2d 1018; Cross v. Thustin, 165 Cal.App.2d 146, 331 P.2d 785; Hancock v. Burns, 158 Cal.App.2d 785, 323 P.2d 456; Dawson v. Martin, 150 Cal.App.2d 379, 309 P.2d 915, and Oppenheimer v. Arnold, 99 Cal.App.2d 872, 222 P.2d 940. And in Martelli v. Pollock, 162 Cal.App.2d ,655, 328 P.2d 795, and Dawson v. Rash, 160 Cal.App.2d 154, 324 P.2d 959, summary judgments for defendants were made.
(3) The motives which activated the public official are immaterial. If the act is protected by immunity, it is of no consequence in the courts of the law, as distinguished from the forum of conscience, that the official may have acted with evil intent. Here, again, the purpose of the law if not, of course, to palliate wrongdoing, but to recognize, again to quote Judge Hand, 'that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.' Gregoire v. Biddle, supra, 177 F.2d 579, at page 581. It would always be possible, were the rule otherwise, by alleging malice, to bring the case to trial. Bradley v. Fisher, 13 Wall. 335, 348, 20 L.Ed. 646, 650. Therefore, we must consider the acts done in exactly the same way as if they were done with good will, despite the allegations of malice. Hardy v. Vial, supra, 48 Cal.2d 577, 311 P.2d 494; White v. Towers, supra, 37 Cal.2d 727, 235 P.2d 209; Cross v. Tustin, supra, 165 Cal.App.2d 146, 149, 331 P.2d 785; Dawson v. Rash, supra, 160 Cal.App.2d 154, at page 159, 324 P.2d 959, at page 962.
(4) In order to have the protection of official immunity, the official must have been acting within the scope of the duties of his office. White v. Towers, supra, 37 Cal.2d 727, at page 733, 235 P.2d 209, at page 213; The Hale Company v. Lea, 191 Cal. 202, 215 p. 900.
However, the duties of public office include not only those which lie squarely within its scope, but also those which are essential to accomplishment of the main purposes for which the office was created and also those which, 'although only incidental and collateral, serve to promote the accomplishment of the principal purposes.' White v. Towers, supra, 37 Cal.2d 727, 733, 235 P.2d 209, 213.
When we speak of the duties of a public official, in respect of the immunity doctrine, we cannot hold that the officer goes outside his duties simply because he acts dishonestly, and with an aim other than that of the public good, for that would defeat the whole doctrine. If the occasion is such that if the officer had been using his power for proper purposes for which it was vested in him, immunity exists. Hardy v. Vial, supra, 48 Cal.2d 577, 311 P.2d 494; Gregoire v. Biddle, supra, 177 F.2d 579, 581. It is contended by appellant that the acts charged were beyond the scope of authority of the school officials. The specified acts were summed up by the complaint towards charging a single tort, wrongful interference in pursuance of a conspiracy, with a contractual relationship. Conspiracy itself is not tort. The tort is whatever wrongful act effected the damage. Schaefer v. Berinstein, 140 Cal.App.2d 278, 293, 295 P.2d 113.
So, the essential charge is wrongful interference with the contract between plaintiff and the school district. We must now consider whether the acts charged as the constituents of this tort were within the duties, either essential or incidental and collateral, but promoting the accomplishment of the principal purposes proper to the offices of the trustees and superintendent.
The duties of school trustees require them to 'examine carefully into the management, conditions, and needs of the schools' (Ed. Code, § 2204(f) ), and the county superintendent must 'superintend the schools of his county.' (Ed. Code, § 352(a). )
Now Education Code, § 984(f).
Now Education Code, § 801(a).
The object of termination of plaintiff's engagement would have been a legitimate one if the school authorities had come to the conclusion that it was to the best interests of the district. The fact that their motives allegedly were not good does not destroy the immunity, as explained above. It remains to examine the subject of the means taken.
The case of Hardy v. Vial, supra, 48 Cal.2d 577, 311 P.2d 494, is the key to our decision.
In that case plaintiff had commenced a malicious prosecution action against school officials and certain other persons, charging that the officials had aided and abetted the others of file affidavits falsely and maliciously, charging him with gross immorality and unprofessional conduct. He alleged in his complaint that these affidavits caused his discharge as a professor, but that he had been reinstated by the State Personnel Board. It was held, at page 583 of 48 Cal.2d, at page 497 of 311 P.2d, that the purpose of the alleged conspiracy was to accomplish plaintiff's dismissal, and that this was clearly within the scope of the official duties of the school defendants so that they were immune, and judgment for those defendants upon an order sustaining a demurrer without leave was affirmed.
Appellant would have us distinguish the Hardy case on the ground that in that case formal charges were filed against Hardy, as provided by section 13522 of the Education Code, while in the Lipman case, no charges were filed, but a 'devious course of action outside the scope of the duties, was taken to force and pressure her out of the position.' The means used to accomplish the purpose of dismissal in the Hardy case, though allegedly maliciously used, was a legal means.
We do not regard this distinction as persuasive. No doubt there are some means towards accomplishing dismissal which would be so unrelated to that end or so disproportionate to it, or which would inflict such damage besides the dismissal, that officials would not be immune in their use. Assault or false imprisonment, probably, as distinguished from the malicious prosecution of the Hardy case, might be such means as would be unprotected despite official immunity.
In the case before us, plaintiff has not brought an action for libel or slander. Had she done so, she would have been required to file a $500 cost bond under section 830 of the Code of Civil Procedure, as was pointed out in defendant's brief in the superior court. The characteristics of libel and slander cases would have come forth: truth would be a defense; privilege, a defense; mitigating circumstances, under section 461 of the Code of Civil Procedure, would have been available to the defendants. That tort we regard as one singularly subject to official immunity. The tort may be committed not only by illegal means, but by lawful means as well. Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 38, 112 P.2d 631. Whether the interference is tortious or not depends in part on a balancing of the desirability of maintaining the contract as against the objectives advanced by the interference. Imperial Ice Co. v. Rossier, supra, 18 Cal.2d at page 35, 112 P.2d at page 632; Masoni v. Board of Trade, 119 Cal.App.2d 738, 742, 260 P.2d 205.
To bring public officials to court to answer for many acts which in themselves may be legal, but which in the aggregate may interfere with a public employee's performance of duty, and to weigh, in the lawsuit, the desirability of keeping the contract in effect, would be such an intrusion upon the administration of government as to interfere seriously with the performance of executive functions. Disaffected employees might gain entrance to the courts with demands for damages, not by charging acts which constitute wrongs in themselves, but by charging this inclusive tort.
To present to a jury or to a judge the questions, among others, whether or not the plaintiff, who had decided that she could not go through with performance of the contract, was right in her conclusion, and whether or not the acts of the school authorities had produced that result, would present issues so disruptive of the normal processes of school administration that they should be avoided if the acts charged are within the broad scope of the officials' authority.
It having been held, therefore, in Hardy v. Vial, supra, 48 Cal.2d 577, 311 P.2d 494, that school trustees who are alleged to have sought dismissal of an employee and to have used as a means thereto a malicious prosecution of false charges are immune in an action for damages, we believe the ruling of that case should be applied to this one.
C. The Complaint as Directed Against the District Attorney.
The charges that the district attorney made an investigation of plaintiff and made suggestions to others of possible offenses committed by her, are easily disposed of. Such actions are clearly within his power and duty. White v. Towers, supra, 37 Cal.2d 727, at page 731, 235 P.2d 209, at page 211; Norton v. Hoffmann, 34 Cal.App.2d 189, 93 P.2d 250; White v. Brinkman, 23 Cal.App.2d 307, 313, 73 P.2d 254; Pearson v. Reed, 6 Cal.App.2d 277, 44 P.2d 592.
The allegation relating to the district attorney's press releases is that 'he caused press releases to be made concerning his investigations which were directed in such a manner as to intimate and suggest that the plaintiff was receiving salary 'kickbacks' and had altered, suppressed or otherwise changed school records and books and minutes to conceal an alleged wrongful conduct on her part.'
It was well within the duties of the district attorney to investigate the subject of alleged 'kickbacks' of salaries. Section 70 of the Penal Code makes it a misdemeanor for an officer to receive any emolument, except as provided by law, for doing an official act.
As to the press releases on this subject, we believe the district attorney's office gives him immunity under the facts. In White v. Brinkman, supra, 23 Cal.Ap.2d 307, 313, 73 P.2d 254, it was held that a district attorney was immune, who, allegedly having conspired with the city manager to injure plaintiff, maliciously caused his arrest on charges known by the district attorney to be false, and that the district attorney thereafter had dismissed the charges. This resembles, of course, the situation The difference between the White case and the present one is that in that case the district attorney actually filed a complaint. Whether or not this was given publicity it could have been reported, of course, by the press. In that case, as in this one, there was no carrying through of whatever charge was made: that is, in the White case the complaint was dismissed on motion, and in this case the press releases were not followed by any charges, civil or criminal, but by at least a modified form of withdrawal. The fact that the district attorney, as well as the school authorities, did not prosecute any charges against plaintiff is in itself evidence to the public that they did not regard any charges as having weight sufficient for the lodging of such charges. This may not be satisfying to plaintiff, as the dismissal of the charges was not satisfying to plaintiff White in the Brinkman case, but, as stated in many of the cases cited above, the immunity of the officers is not for their private defense but for the good of the public by protection of its officer.
Recently, the United States Supreme Court has held, in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, that the acting director of the office of Rent Stabilization was immune from liability for libel for press releases in which he had allegedly defamed employees of the office. The court cited as 'admirably expressed' the reasons for immunity laid down in Gregoire v. Biddle, reasons which were approved by our Supreme Court in Hardy v. Vial. We believe that the office of district attorney as public prosecutor of the county (Gov.Code, § 26500) is such that comment to the press on the subject involved herein, at least when followed by a statement that the investigation, though a limited one, gave no evidence of wrongdoing, does not subject that officer to personal liability.
In considering this phase of the case we refer to our previous discussion of the alleged acts of the school officials, in with we point out that this is not an action for libel or slander but for wrongful interference with a public contract. Again we emphasize the tort in this case frames the problem of offcial immunity in a special and unique aspect. Official immunity for press releases of a district attorney in the investigation of the performance of a contract of public employment may well assume a different aspect than it acquires upon other occasions and with respect to different causes of action.
The judgment is affirmed.
TOBRINER, Acting P. J., and DUNIWAY, J., concur.
Hearing granted; DOOLING, J. pro tem., sitting in place of SPENCE, J.