Burgdorf v. Funder

• Court: California Court of Appeals
• Writing for the Court: GARGANO; CONLEY, P.J., and STONE
• Citation: 54 Cal.Rptr. 805,246 Cal.App.2d 443
• Parties: Otto BURGDORF, Plaintiff and Appellant, v. Elvin L. FUNDER, Defendant and Respondent. Civ. 681.
• Decision Date: 14 November 1966

Page 805

54 Cal.Rptr. 805 246 Cal.App.2d 443 Otto BURGDORF, Plaintiff and Appellant,
v.
Elvin L. FUNDER, Defendant and Respondent. Civ. 681. Court of Appeal, Fifth District, California. Nov. 14, 1966.
Rehearing Denied Dec. 12, 1966.
Hearing Denied Jan. 18, 1967.

Page 806

[246 Cal.App.2d 444] Otto Burgdorf, in pro. per.

McGregor, Bullen & Erich and William C. McKinley, Sacramento, for respondent.

OPINION

GARGANO, Justice.

Plaintiff appeals from a judgment of dismissal entered in favor of defendant after his motion for judgment on the pleadings was granted. The undisputed facts, as established by the pleadings, are substantially as follows:

The plaintiff, who is a rancher, filed a claim with the State Controller, Division

Page 807

of Tax Collection and Refund, for the refund of gasoline taxes which he had paid for fuel used during the period from October 2, 1962, through May 30, 1963. In his claim plaintiff stated under oath that the fuel had been used for farming purposes. The plaintiff did not have invoices, receipts or other documentary evidence in support of his claim so an audit was ordered and ultimately conducted. As a result [246 Cal.App.2d 445] of this audit, plaintiff was advised by letter written by the defendant, as Chief of the Division of Tax Collection and Refund, dated September 13, 1963, that his claim was excessive. This is the letter which plaintiff claims is libelous. His complaint, which was filed on August 5, 1964, alleges in substance that the letter accuses him of perjury and that it was filed in the 'official files of the Division of Tax Collection and Refund and in this was exposed to public view and became a public document.' The letter, however, which is attached to the complaint and made a part thereof by reference, is not couched in slanderous terms, and it does not accuse the plaintiff of having committed perjury, as plaintiff alleges. It advises plaintiff that the audit had disclosed that he had not maintained records of his fuel usage as a basis for filing his claim; that it was necessary for the auditor, with plaintiff's assistance, to develop in detail plaintiff's tax usage for the period involved; that claims previously paid covering earlier periods had been analyzed; and that by applying the same taxable usage to these periods as was developed for the period involved it was disclosed that excessive refunds had also been made in the past. The defendant filed an answer denying the material allegations of the plaintiff's complaint, and thereafter moved for judgment on the pleadings and the motion was granted.

We find it difficult to conclude that the letter written by the defendant was libelous per se, and that plaintiff has stated a cause of action against defendant for damages for libel. The letter which was written by the defendant and which is an integral part of the complaint does not accuse the plaintiff of intentionally supplying false information, nor does it accuse him of misstating the facts. At best, it disputes the method used by the plaintiff in arriving at his fuel usage, which was not supported by invoices or other records (a fact admitted by plaintiff), and informs him that according to the auditor's analysis his claim was excessive. It is not, however, necessary to decide this question in this appeal for the trial court apparently arrived at its decision on other grounds, viz., (1) that the complaint fails to state a cause of action in that it fails to allege that the plaintiff presented a claim to the public entity which had been rejected, and (2) that defendant is shielded by statutory immunity. We will consider each of these grounds separately.

(1) Plaintiff does not contend that his failure to present a [246 Cal.App.2d 446] claim to the public entity was inadvertent ¹ and he does not, nor can he, assert lack of knowledge on his part as to the defendant's employment status. ² He admits that he did not present a claim to the public entity and maintains without specifying his exact reasons that the claim provisions of the Government Code relating to public employees are inapplicable. With this contention we do not agree.

Prior to 1963 it was the well-established law of this state that a complaint against a public employee did not state a cause of action if it did not allege compliance with the applicable claim provisions of the Government Code. (Veriddo v. Renaud, 35 Cal.2d 263, 217 P.2d 647; Kitchen v. Delafield, 221 Cal.App.2d 114, 34 Cal.Rptr. 288; Illerbrun v. Conrad, 216 Cal.App.2d 521, 31 Cal.Rptr. 27; and...