Agostini v. Strycula

• Decision Date: 22 January 1965
• Citation: 42 Cal.Rptr. 314,231 Cal.App.2d 804
• Court: California Court of Appeals Court of Appeals
• Parties: Victor AGOSTINI, Plaintiff and Appellant, v. Thomas F. STRYCULA, Elmer J. Gaetjen, Mary Vieira, Howard Hughes, Richard Scammon, Edith Lee, Calder Williams, Defendants and Respondents. Civ. 21598.

Page 314

42 Cal.Rptr. 314

231 Cal.App.2d 804

Victor AGOSTINI, Plaintiff and Appellant, v. Thomas F. STRYCULA, Elmer J. Gaetjen, Mary Vieira, Howard Hughes, Richard Scammon, Edith Lee, Calder Williams, Defendants and Respondents.

Civ. 21598.

District Court of Appeal, First District, Division 3, California.

Jan. 22, 1965.

C. L. Keck, Ollie M. Marie-Victoire, San Francisco, for appellant.

Thomas M. O'Connor, City Atty. of City and County of San Francisco, Thomas A. Toomey, Jr., Asst. Chief Deputy Atty., Beatrice Challiss Laws, Deputy City Atty., San Francisco, for respondents.

SALSMAN, Justice.

The trial court sustained a general demurrer to appellant's first complaint and refused leave to amend. This appeal is from the judgment thereafter entered. We have concluded that the trial court's action was correct and that the judgment must be affirmed.

Appellant does not contend that his complaint as written states any cause of action. He does assert, however, that given an opportunity, he could amend to state a cause of action. Generally, sustaining a demurrer to a party's first complaint and refusing leave to amend is unwarranted if there is some probability that the complaint may be amended to state a cause of action. (Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 719, 128 P.2d 522, 141 A.L.R. 1358; Loper v. Flynn, 72 Cal.App.2d 619, 625, 165 P.2d 256; 2 Witkin, Cal. Procedure, pp. 1496-7). On the record before us, however, it is clear that appellant cannot amend his complaint so as to state any cause of action.

Six causes of action are attempted to be stated in the complaint. Only the first two are involved in this appeal.

Appellant's first alleged cause of action stated that prior to May 9 and 10, 1962, he was 'employed as Group Supervisor with designation of T-35 by the City and County of San Francisco in the Civil Service'. Appellant further alleged that on the dates mentioned respondents and each of them did 'intentionally, wilfully, maliciously and falsely issue and cause to be issued oral and written statements that plaintiff was unsuited for duties involving group supervision of children because of insubordination and for other untrue reasons.' It was further alleged that 'all of the acts complained of * * * were outside the scope and agency relationship or employment of the defendants * * * with the City and County of San Francisco; that said acts were the personal and individual acts of the defendants. * * *' Finally it was alleged that 'As a proximate result of said intentional, willful, malicious and false acts of defendants * * * plaintiff has sustained * * * shock and emotional distress.'

Appellant's second alleged cause of action described his employment status and realleged by reference to the first cause of action the statements said to have been made by respondents. It stated further that prior to May 9 and 10, 1962 'plaintiff was the holder and owner of certain property rights as to income and retirement benefits. * * *' under the City and County of San Francisco Civil Service. Finally, the second alleged cause of action concluded that 'As a proximate result of the intentional, willful, malicious and false acts of the defendants * * *' appellant's property rights had been damaged.

Respondents correctly contend that we may take judicial notice of the provisions of the charter of the City and County of San Francisco, (Clark v. City of Pasadena, 102 Cal.App.2d 198, 200, 227 P.2d 306; Witkin, Cal.Evidence, § 47, p. 62) and of the records and proceedings of the San Francisco Civil Service Commission. (Code Civ.Proc. § 1875(3); Watson v. Los Altos School Dist., 149 Cal.App.2d 768, 772, 308 P.2d 872.) Facts judicially noticed may be used to support a demurrer. (Chavez v. Times-Mirror Co., 185 Cal. 20, 23, 195 P. 666; People v. Oakland Water Front Co., 118 Cal. 234, 245, 50 P. 305; Wilson v. Loew's, Inc., 142 Cal.App.2d 183, 187-188, 298 P.2d 152.) Here, respondents have properly brought to our attention and lodged with the court the relevant documents and records subject to judicial notice and which support the trial court's action in ruling on respondents' demurrer. (See Flores v. Arroyo, 56 Cal.2d 492, 496-497, 15 Cal.Rptr. 87, 364 P.2d 263.)

The records of the Civil Service Commission of the City and County of San Francisco establish that appellant held the position of a T-35 Group Supervisor at the Youth Guidance Center; that his duties included 'care and custody of children * * * under the jurisdiction of the Juvenile Court,' including responsibility for the care, safety and personal conduct of such children. Those records also disclose that appellant was suspended from his duties on April 23, 1962 on a charge of insubordination growing out of the alleged infliction of corporal punishment upon a child under his care; that a hearing was held by respondent Strycula, appellant's appointing officer, of which hearing appellant had due notice; that appellant was represented by counsel at the hearing and was sworn as a witness and testified fully in his own behalf; that respondents, other than Strycula, testified at the hearing and by their sworn testimony generally supported the charges that appellant had used corporal punishment as discipline, in violation of standing rules and instructions. Appellant was found guilty of the charges and dismissed from the Civil Service. He appealed to the Civil Service Commission, and after consideration of the hearing transcript and a brief filed by appellant's attorney, the Commission confirmed the dismissal.

Although appellant alleges that the acts of respondents were their personal acts and outside the 'scope and agency relationship' with the City and County of San Francisco, the trial court was not bound by such allegations, not are we. These allegations are contradicted by the averments made by appellant in his fifth...