Elder v. Anderson

• Decision Date: 29 June 1962
• Citation: 23 Cal.Rptr. 48,205 Cal.App.2d 326
• Parties: Raymond ELDER, a minor, Etc., Plaintiff and Appellant, v. Harry R. ANDERSON et al., Defendants and Respondents. Civ. 36.
• Court: California Court of Appeals Court of Appeals

Page 48

23 Cal.Rptr. 48

205 Cal.App.2d 326

Raymond ELDER, a minor, Etc., Plaintiff and Appellant, v. Harry R. ANDERSON et al., Defendants and Respondents.

Civ. 36.

District Court of Appeal, Fifth District, California.

June 29, 1962.

Rehearing Denied July 25, 1962.

Hearing Denied Aug. 22, 1962.

Meux, Gallagher, Baker & Manock, John H. Baker, Fresno, for appellant.

Barrett & Wagner, James F. Wagner, Fresno, Honey, Mayall, Hurley & Knutsen, Stockton, for respondents.

BROWN, Justice.

This action was brought by plaintiff's mother, Laura M. Elder, as guardian ad litem for her 17 year old son, for claimed damages from an alleged libelous statement made by five defendants who were all of the duly elected trustees of the Caruthers Union High School District, and defendant Harry R. Anderson, who was the superintendent and an employee of said district. Said defendants were not named in their official capacities. The alleged libel is part of an extensive Special Announcement mailed to many members of the general public within the boundaries of the school district. The portion of the Announcement concerned and pleaded in the complaint is as follows:

'At a special public meeting to be held Tuesday, November 24, 1959, in the Caruthers High School Gymnasium at 7:30 p. m. the Caruthers High School Board of Trustees, the administration, teachers and sponsors of the Los Angeles Band trip will bring the public in full focus of the serious violation of manners, morals and discipline that occurred in Los Angeles as the direct result of interference by the Elder and Fries boys who are now suspended from school.'

However, although not complained of, the announcement continued:

'These boys were not members of the Band, but were in Los Angeles on their own. This is the issue that brought on this development; therefore, the full details will be open for all the public to hear and any other matter will be heard at this time, if desired.'

The pretrial conference order stated that Harry Anderson was the superintendent and employee of the school district; that the other five defendants were the duly elected trustees of the school district; that the five trustees prepared the entire Special Announcement hereinabove referred to and mailed copies thereof to many members of the general public within the boundaries of the high school district; and that the said alleged libelous statement is contained in said Special Announcement.

Subsequently, the defendants filed a motion to dismiss plaintiff's complaint on the ground that said complaint was beyond the jurisdiction of the superior court, being barred by the doctrine of civil immunity.

The court entered a judgment and order for dismissal on the ground that the action is beyond the jurisdiction of the superior court because the suit is against defendants who are public school officials and clothed with civil immunity for an alleged libel in the performance of their official duties.

Plaintiff made a motion for a new trial which was denied, and it is from the judgment that plaintiff now appeals.

On an appeal from a judgment of dismissal entered on the pleadings, the facts alleged in the complaint must be taken to be true (Saroyan v. Burkett, 57 A.C. 751, 754, 21 Cal.Rptr. 557, 371 P.2d 293), and we must assume that the plaintiff can prove all facts as alleged. However, the appellate function does not include fact finding. Accordingly, questions as to whether the material complained of is in fact defamatory and questions relating to defenses, if any, will not be here considered or determined. The task of this court is to determine whether the trial court erred in finding this to be a proper case for application of the doctrine of civil immunity.

Plaintiff claims that the doctrine of civil immunity does not apply to public officials if they are performing ministerial acts as opposed to discretionary acts, or if their acts are not within the course and scope of their authority.

Education Code, section 10751, specifically provides:

'No teacher, principal, employee, or governing board member of any public, private, or parochial school shall give out any personal information concerning any particular minor pupil enrolled in the school in any class of the twelfth grade or below or in the thirteenth or fourteenth grades of a public junior college to any person except under judicial process unless the person is one of the following:

'(a) A parent or guardian of such pupil.

'(b) A person designated by such parent or guardian in writing.

'(c) An officer or employee of a public, private, or parochial school where the pupil attends, has attended, or intends to enroll.

'(d) An officer or employee of the United States, the State of California, or a city, and county, or county seeking information in the course of his duties.

'(e) An officer or employee of a public or private guidance or welfare agency of which the pupil is a client.

'Restrictions imposed by this act are not intended to interfere with the giving of information by school personnel concerning participation in athletics and other school activities, the winning of scholastic or other honors and awards, and other like information. Notwithstanding the restrictions imposed by this section, an employer or potential employer of the pupil may be furnished the age and scholastic record of the pupil and employment recommendations prepared by members of the school staff, and rosters or lists containing the names and addresses of seniors in public, private, or parochial high schools or junior colleges may be furnished to private business or professional schools and colleges.' (Italics added.)

This section requires strict interpretation. It indicates by the exceptions that the legislative intent was to permit only the giving of personal information concerning the pupils involved in the participation of athletics and school activities, the winning of honors and awards and other similar information. It also permits the giving of personal information concerning the age and scholastic records of a pupil and lists of names and addresses of seniors in high schools to private business or professional schools and colleges. Thus, under no circumstances is any information to be given out by the school or its officials for any other purposes, whether beneficial or detrimental, except when waived in a public hearing under section 986 of the Education Code.

Plaintiff admits that the school board has the right and the discretion to determine whether or not to send out notices calling public meetings and also to send out announcements concerning activities of the school board, but that to insert such personal information in the announcements is an express violation of section 10751 of the Education Code.

Discretionary acts are those wherein there is no hard and fast rule as to the course of conduct that one must or must not take and, if there is a clearly defined rule, such would eliminate discretion. (Goodman v. Goodman, 68 Nev. 484, 236 p.2d 305.)

In the case of Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51, 54, 105 A.L.R. 1115, 'discretion' is defined as follows:

'Discretion in the manner of the performance of an act arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. But when a positive duty is enjoined, and there is but one way in which it can be performed lawfully, then there is no discretion.'

In State ex rel. Hammond v. Wimberly, 184 Tenn. 132, 196 S.W.2d 561, 563, the court stated:

'* * * where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial, but where the act to be done involves the exercise of discretion and jdugment it is not be deemed merely ministerial.'

Therefore, it is the plaintiff's contention judgment it is not to be deemed merely allowed are ministerial acts; that the prohibition expressed in section 10751 of the Education Code constitutes a mandatory, hard and fast rule; and that violation of that section eliminates the doctrine of sovereign immunity as far as the defendant trustees are concerned. With this we agree.

'Government officials are liable for the negligent performance of their ministerial duties [citations] but are not liable for their discretionary acts within the scope of their authority [citations] * * * [citations].' (Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 220, 11 Cal.Rptr. 89, 94, 359 P.2d 457, 462.)

In Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465, the school trustees, outside of a meeting, made certain disparaging remarks concerning the superintendent of schools to members of the public. Such remarks were that the superintendent was dictatorial, operated a rubber stamp board, was overpaid, suppressed facts from the board, tampered with minutes of the meetings, received kickbacks from district employees, engaged in shady dealings and cleaned up on business transactions. The court said, at pages 234, 235, 11 Cal.Rptr. at page 102, 359 P.2d at page 470:

'The statements allegedly made to the press and to members of the public were not confined to reports of charges that were being made; they purported to be statements of fact and were beyond the scope of the trustees' powers. In making these statements the three trustees were not within the immunity rule, and a cause of action is stated against them. The case of Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494, 66 A.L.R.2d 739, relied upon by defendants, is distinguishable because the school defendants involved there did not make statements to the public but only to three nonschool persons who filed false charges against the plaintiff with an appropriate administrative body in carrying out an alleged conspiracy with...