Gold v. Los Angeles Democratic League

• Decision Date: 25 June 1975
• Citation: 49 Cal.App.3d 365,122 Cal.Rptr. 732
• Parties: David GOLD, Plaintiff and Appellant, v. The LOS ANGELES DEMOCRATIC LEAGUE et al., Defendants and Respondents. Civ. 45140.
• Court: California Court of Appeals Court of Appeals

Page 732

122 Cal.Rptr. 732

49 Cal.App.3d 365

David GOLD, Plaintiff and Appellant, v. The LOS ANGELES DEMOCRATIC LEAGUE et al., Defendants and Respondents.

Civ. 45140.

Court of Appeal, Second District, Division 4, California.

June 25, 1975.

Michaels & Sobel and Michael D. Sobel, Los Angeles, for plaintiff and appellant.

Paul, Hastings, Janofsky & Walker, David B. Harriman and Ronald M. Oster, Los Angeles, for defendants and respondents.

DUNN, Acting Presiding Justice.

On April 1, 1974, plaintiff commenced an action in the superior court against the Los Angeles Democratic League, Carmen H. Warschaw and various Does to recover damages based upon alleged violation of Elec.Code § 12057, upon constructive fraud, negligent misrepresentation, 'interference with prospective relationship' and upon a common count for debt on an open book account. Plaintiff also sought an injunction enjoining defendants from violating Elec.Code § 12057. Before any defendant answered or demurred, plaintiff filed a first amended complaint (Code Civ.Proc. § 472). The named defendants demurred generally to the first amended complaint, and to each count thereof. The trial court sustained the demurrer without leave to amend, and dismissed the action. (Code Civ.Proc. § 581, subd. 3.) Plaintiff appeals from the order of dismissal (judgment, Code Civ.Proc. § 581d).

The verified first amended complaint was framed in 5 counts. The first count alleged: plaintiff was a duly registered candidate for the office of city controller in the Los Angeles municipal election held on April 3, 1973; defendant Los Angeles Democratic League is a California corporation transacting business in the county of Los Angeles; defendant Carmen Warschaw is the chairman of the Los Angeles Democratic League; at all times mentioned, plaintiff was a member of the Los Angeles County Democratic Central Committee, which is an official body of the Democratic party; plaintiff was the endorsed candidate of the committee for the office of city controller in the municipal election of April 3, 1973; on April 2, 1973, defendants mailed to an unknown number of recipients in the Los Angeles area a pamphlet (attached to the amended complaint as an exhibit) containing 'Voter Information' for the April 3rd election; the pamphlet showed that it had been sent by defendants, urged the recipient to 'Vote Democratic,' and listed one candidate for each of the offices to be filled in the election; the candidate listed for city controller was Charles Navarro; defendants mailed the pamphlet immediately before the election so that the 'effected (sic) candidates' would not have an opportunity to 'expose' the mailing prior to the election; the purpose of the mailing was to influence 'perspective' (sic) voters to vote for the candidates whom defendants endorsed in the pamphlet; because of the appearance and language of the pamphlet, it appeared to be an endorsement by the Democratic party; the pamphlet and the representations contained therein were contrary to Elec.Code § 12057, which 'prohibits misrepresentation as to support of a candidate'; it is necessary that plaintiff be granted a temporary restraining order and a preliminary injunction enjoining defendants from the further mailing of pamphlets of a similar nature, or else plaintiff will suffer irreparable injury in that further mailings might render ineffectual any judgment obtained by him; defendants did the acts alleged with the intent to harm plaintiff, and said acts were done maliciously and oppressively; therefore, plaintiff is entitled to punitive damages of $1,000,000.

Each of the succeeding counts incorporated all of the allegations of the first count (paragraphs 1 through 11) except those which specifically mentioned facts pertinent only to Elec.Code § 12057, including those which set forth the basis for injunctive relief. In addition, counts 2 through 5 further alleged as set forth hereinafter.

Count 2 (constructive fraud): on April 2, 1973, each of the defendants was in a position of trust to the public and to the candidates in the forthcoming municipal election, to refrain from disseminating false or misleading information to prospective voters regarding the election; the pamphlet mailed by defendants to 'perspective voters' (sic) on April 2nd conveyed a false and misleading impression regarding which candidates were endorsed by an official branch of the Democratic party; because of the mailing, candidates who otherwise might not have been successful in the election were successful; each of the defendants did the acts alleged 'with the intent of gaining an advantage over those individuals including the plaintiff who may have been endorsed by an official branch of the Democratic Party but who were not represented' in the pamphlet as being so endorsed; in making such misrepresentations, defendants acted maliciously and oppressively, entitling plaintiff to punitive damages of $1,000,000.

Count 3 (negligent misrepresentation): defendants, by mailing the pamphlet, represented to the general public 'that certain named candidates had received the endorsement of the Los Angeles Democratic League. The manner in which the pamphlet is printed' conveyed the impression that such defendant was an official branch of the Democratic party; such representation was false; the true facts were that 'the Los Angeles Democratic League was nothing more than an organization composed of individuals or groups who had a special interest in the election of' the candidates listed in the pamphlet; by conveying the impression that it was an official branch of the Democratic party, defendant League hoped that its endorsement of candidates would influence the voters of Los Angeles; when defendants made such representations, they had no reasonable ground for believing them to be true, in that defendants had no information concerning the official endorsements of the Democratic party for the municipal election of April 3, 1973; defendants were aware that without such information they could not accurately state which candidates were endorsed by the Democratic party or its official branches; on April 2, 1973, defendants concealed from plaintiff and from the general public defendants' lack of such information and their consequent inability accurately to make the statements contained in the pamphlet; in 'relience' (sic) on these statements, 'a great number of voters in' Los Angeles were influenced to and did vote in accordance with defendants' endorsement of candidates in the pamphlet; had the public known the true facts, the majority of them would not have so voted.

Count 4 (interference with 'perspective' (sic) employment): defendants, knowing that plaintiff was a candidate for the office of city controller, mailed the pamphlet which gave the impression that the candidates listed therein were endorsed by the Democratic party or by one of its official branches; such representation was false; the true facts were that Charles Navarro, the candidate for city controller endorsed in the pamphlet, was not officially endorsed by the Democratic party, the Los Angeles County Democratic Central Committee or any other official branch of the Democratic party; at the time of the election, Mr. Navarro was a registered Republican, as shown by a copy of his voter registration (sworn to by him on April 3, 1969) attached to the amended complaint; when said representations were made by them, defendants knew they were false and made them with the intent wrongfully to interfere with plaintiff's opportunity to be elected to the office of city controller; it was the mailing of the pamphlet which caused the voters to elect Mr. Navarro to such office; as a result of defendants' misrepresentations and 'wrongful interference with plaintiffs perspective (sic) employment, plaintiff was not elected to the office of City Controller . . . to plaintiffs damage in the sum of $4,400.00'; defendants acted maliciously and in wanton disregard of plaintiff's rights; therefore, plaintiff was entitled to punitive damages of $1,000,000.

Count 5 (common count): within 4 years last past, at Los Angeles, defendants became indebted to plaintiff on an open book account in the sum of $4,400, representing money expended by plaintiff which defendants are obligated to repay to him; demand having been made therefor, the entire sum is due, owing and unpaid.

The questions presented on this appeal ¹ are whether any of the foregoing counts states a cause of action and, if not, whether there is a reasonable possibility that any can be amended to do so. (See: MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 542, 343 P.2d 36 (1959).)

The first count is based on defendants' alleged violation of Elec.Code § 12057, ² which provides that no candidate or committee in his behalf may misrepresent that the candidate has the support of a county or state central committee of a party with which he is not affiliated. (See: 17 Cal.Jur.2d Rev. 436, 'Elections' § 120.)

Section 12057 provides that any member of a county or state central committee may commence an action to enjoin the acts prohibited by the statute. But an injunction lies only to prevent threatened injury and has no application to wrongs which have been completed. (Griffith v. Dept. of Public Works, 52 Cal.2d 848, 853, 345 P.2d 469 (1959); Scott v. Scott, 51 Cal.2d 249, 254, 331 P.2d 641 (1958); Blackmore Investment Co. v. Johnson, 213 Cal. 148, 150--151, 1 P.2d 978 (1931); Blake v. City of Eureka, 201 Cal. 643, 661--662, 258 P. 945 (1927), disapproved on other grounds in Bellus v. City of Eureka, 69 Cal.2d 336, 346, 71 Cal.Rptr. 135, 444 P.2d 711 (1968); People v. Paramount Citrus Assn., 147 Cal.App.2d 399, 412--413, 305 P.2d 135 (1957).) Thus, to authorize the issuance of an injunction, it must appear with reasonable certainty that the wrongful acts will be continued or repeated. (Rosicrucian Fellowship v. Rosicrucian, etc., Church, 39 Cal.2d 121, 144, 245...