Cross v. Tustin
| Decision Date | 14 November 1958 |
| Citation | 331 P.2d 785,165 Cal.App.2d 146 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Nancy CROSS, Plaintiff, Petitioner and Appellant, v. John L. TUSTIN, Individually and as Personnel Director of Santa Clara County, John F. Fisher, Individually and as Executive Officer of the State Personnel Board, James R. Bell, Individually and as Assistant Executive Officer of the State Personnel Board, Horace Cureton, George Prindiville, Justin W. Byers, J. B. Robinson and James E. Dunn, Individually and as former members of the Civil Service Commission of Santa Clara County, Ford A. Chatters, Emery E. Olson, Wilmer W. Morse, Robert D. Gray and Benjamin E. Mallary, Individually and as members of the State Personnel Board, the State Personnel Board, the State Controller, and the State Treasurer, Defendants and Respondents. Civ. 9314. |
Nancy Cross in pro. per., for appellant.
Spencer M. Williams, John A. Symon, San Jose, and The Attorney General by Willard A. Shank, Deputy Attorney General, for respondents.
This appeal was taken from a judgment of dismissal after the sustaining of demurrers without leave to amend.
The following is a condensation of the first complaint filed herein: Plaintiff is a personnel examiner and, by training, also a lawyer, though not a member of the State Bar. John L. Tustin is personnel director and secretary of the Civil Service Commission of Santa Clara County, and, with respect to the acts complained of, was an agent and servant of said commission, acting within the scope of his employment. John F. Fisher and James R. Bell are executive officer and assistant executive officer, respectively, of the State Personnel Board and the acts by them complained of were done while they were acting as agents and servants of the board within the scope of their employment. Horace Cureton, George Prindiville, Justin W. Byers, J. B. Robinson and James E. Dunn are members of the Civil Service Commission of Santa Clara County. Ford A. Chatters, Emery E. Olson, Wilmer W. Morse, Robert D. Gray and Benjamin E. Mallary are members of the State Personnel Board Plaintiff applied for the position of Associate Personnel Examiner in the state civil service, passed a written examination therefor, and thereafter appeared and took the oral qualifications appraisal test. Several years thereafter plaintiff applied for the position of Junior Counsel in the State Civil Service, passed the written examination therefor, but failed the oral appraisal test. Intermediate her application and the first examination. Fisher wrote to Tustin and inquired concerning the reasons for plaintiff's separation from her position with Santa Clara County. Tustin replied that she had been employed as a Senior Personnel Technician with a probational status; that she had been appointed December 6, 1948, and had been released March 2, 1949; that their rules prohibited giving reasons for the release of a probational employee and hence he was unable to give the information requested. He said, however, that the release had been fully justified. This letter contained false and defamatory statements about plaintiff made maliciously with the intent secretly and fraudulently to prejudice and defeat her opportunities for appointment for any position in the state civil service in that it was, and was understood to be, a charge that plaintiff had been guilty of misconduct and had been discharged for that reason. Tustin, Fisher and Bell were charged with publishing this letter. The letter, said plaintiff, exposed her to hatred, contempt, ridicule and obloquy, caused her to be shunned and avoided, injured her in her occupation and further violated Section 19680 of the Government Code. When Fisher and Bell published the letter, they accompanied it by memorandum of their own making to the effect that although plaintiff was being admitted to the written examination test she could and should be disqualified on oral examination by the qualifications appraisal board. They so stamped and tagged the application form of plaintiff as to bring the letter to the attention of oral examiners. As a consequence of the letter and memorandum, plaintiff, on oral appraisal of her qualifications for the position of Associate Personnel Examiner, was rated only five points above passing, namely, 75%. Had it not been for said publication, plaintiff would have been appointed to the position she sought, but due thereto plaintiff has never been able to obtain the employment she asks for. As a further result of the publications, plaintiff, on oral appraisal of her qualifications for the position of Junior Counsel, was rated five points below passing, that is, 65%, and hence her name could not and did not appear on the eligible list. By reason of the foregoing plaintiff had been specially damaged in the sum of $32,000 and generally damaged in the sum of $43,000. She sought exemplary damages of $25,000.
Shortly after filing her first complaint, plaintiff voluntarily amended the same by alleging that the state board had denied an appeal. Thereafter, she voluntarily filed a second amendment to her complaint, complaining that the State Personnel Board and Mr. Fisher had refused to make available to her copies of the transcripts of various hearings that she had been given. To the pleading as amended demurrers both general and special were interposed. After sustaining the demurrers the court granted leave to amend. Plaintiff did amend by adding a great deal of new matter in amplification of her pleading. Demurrers were again interposed, sustained and further leave to amend was given. Thereupon plaintiff further amended. Demurrers were again interposed and this time were sustained without leave to amend.
We shall first consider the general demurrers interposed to appellant's pleading. In support of their general demurrers respondents argue that they were all sued in their official capacities and that as such they were immune under the doctrine of sovereign immunity. It appears that after it had been pointed out by demurrer that all of the defendants were public employees either of Santa Clara County or of the State of California and that as to all it was alleged that what they had done they had done while acting in the scope of their employment, plaintiff, in one of her amendments, added the following allegations: As to Tustin, that in the acts complained of he was acting without lawful authority; as to Fisher and Bell and the board members that in the acts complained of they were acting without lawful authority and under color of state authority. As to all the foregoing plaintiff added...
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