Hancock v. Burns, 16902

• Decision Date: 28 March 1958
• Docket Number: No. 16902,16902
• Citation: 158 Cal.App.2d 785,323 P.2d 456
• Court: California Court of Appeals Court of Appeals
• Parties: , 34 Lab.Cas. P 71,450 Patrick Thomas HANCOCK, Travis Lafferty, Joseph Chasin, and Holden Hayden, Plaintiffs and Appellants, v. Hugh M. BURNS, Individually and as Chairman of the Senate Fact Finding Committee on Un-American Activities (a California Legislative Committee); The Senate Fact Finding Committee on Un-American Activities (a California Legislative Committee); Nathan F. Coombs, Earl D. Desmond, John F. McCarthy and John F. Thompson, individually and as members of said Committee; Richard E. Combs, individually and as Chief Counsel for said Committee, Defendants and Respondents.

Page 456

323 P.2d 456

158 Cal.App.2d 785, 34 Lab.Cas. P 71,450

Patrick Thomas HANCOCK, Travis Lafferty, Joseph Chasin, and Holden Hayden, Plaintiffs and Appellants, v. Hugh M. BURNS, Individually and as Chairman of the Senate Fact Finding Committee on Un-American Activities (a California Legislative Committee); The Senate Fact Finding Committee on Un-American Activities (a California Legislative Committee); Nathan F. Coombs, Earl D. Desmond, John F. McCarthy and John F. Thompson, individually and as members of said Committee; Richard E. Combs, individually and as Chief Counsel for said Committee, Defendants and Respondents.

No. 16902.

District Court of Appeal, First District, Division 1, California.

March 28, 1958.

Rehearing Denied April 25, 1958.

Hearing Denied May 21, 1958.

Albert M. Bendich, Staff Counsel, American Civil Liberties Union, Lawrence Speiser, Rubin Tepper, San Francisco, Edward F. Newman, Hayward, for appellants.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Ralph N. Kleps, Legislative Counsel, Charles W. Johnson, Chief Deputy Counsel, Sacramento, Melvin, Faulkner, Sheehan & Wiseman, San Francisco, for respondents.

McMURRAY, Justice pro tem.

The four plaintiffs filed a complaint against the several named defendants in their individual capacities and as members of 'The Senate Fact Finding Committee on Un-American Activities' (a California Legislative Committee) except in the case of Hugh M. Burns who was sued individually and as chairman of said committee and Richard E. Combs who was sued individually and as chief counsel for said committee.

Each plaintiff sued for the violation of rights common to all plaintiffs and alleged in the complaint that the same right to relief arose out of the same series of acts of the defendants therein named.

Each plaintiff alleged employment by the Pacific Gas and Electric Company in the following respective employment: meter reader, apprentice electrician, cable splicer and power lineman; and each alleged different damages for the injuries sought to be alleged in the complaint. Other than these differences, the causes of action sought to be alleged by plaintiffs were identical.

Each plaintiff alleged that the respective defendants were chairman, members, and chief counsel of the named committee at all times mentioned in the complaint; each plaintiff alleged his employment by the Pacific Gas and Electric Company in his particular capacity and alleged that he 'always conducted himself in an efficient and punctual manner and was deservedly held in great esteem and credit by his employer and those with whom he worked. That by means of such employment, plaintiff daily acquired divers great gains, profits and emoluments to the support and maintenance of himself and his family and the great increase of his future.'

Each plaintiff alleged that at a subcommittee meeting on August 10, 1953, after being subpoenaed, he was asked questions by defendants Burns, Thompson, Coombs, and Desmond as members and defendant Combs as chief counsel, of the said committee and that the said plaintiffs and each of them relying on their rights and privileges under the Constitutions of the United States and of the State of California, including the right not to be witnesses against themselves as provided in the Fifth Amendment of the United States Constitution, refused to answer questions concerning their political beliefs, associations and affiliations. Each plaintiff alleged that subsequent to said hearing the subcommittee and said defendant committee and the defendants individually and as chairman, members, and chief counsel for said committee 'did wilfully, wrongfully and maliciously recommend that the said Pacific Gas and Electric Company discharge the plaintiffs and each of them and did wilfully, wrongfully and maliciously induce the said Company to discharge plaintiffs for the plaintiffs' alleged refusals to co-operate with said Committee and on the grounds that the plaintiffs were poor security risks. Burns, Coombs, Desmond, McCarthy Burns, Commbs, Desmond, McCarthy and Thompson, individually and as members of said Committee, and defendant Bombs, individually and as chief counsel of said Committee, have no authority by reason of legislative action or authority, or by law or custom to make such recommendations nor to induce said Company to discharge the plaintiffs, and that such actions on the part of the defendants were not within the sphere of any legitimate legislative activity. That said recommendations and inducements were made for the sole purpose of injuring the plaintiffs in their employment and the divers great gains, profits the plaintiffs would accrue from their continued employment with said Company.'

Each plaintiff alleged that the Pacific Gas and Electric Company on August 14, 1953, acting solely on the basis of the above stated recommendations and inducements, discharged the plaintiffs and each plaintiff further alleges that Pacific Gas and Electric Company thereafter notified the union to which plaintiffs belonged to the effect that said company was acting solely on the basis of the above stated recommendations and inducements in discharging said plaintiffs. A copy of the notification from the company to the union is incorporated by reference in each count of the complaint.

Each plaintiff alleged that he was ready, willing and able to resume his employment for the company. Each plaintiff alleged '[t]he plaintiffs are not potential saboteurs, security risks, nor are they unfit for continued employment by said Pacific Gas and Electric Company. The plaintiffs are loyal citizens of the United States of America and would not commit any action to hurt the security of said nation.' Each plaintiff also alleged that the acts and things complained of were a violation of plaintiffs' rights under the Constitution and laws of the United States and the Constitution and laws of the State of California. A demurrer was interposed to the above complaint. Defendants annexed to their demurrer a copy of Senate Resolution No. 127, as amended, relative to creating the Senate Fact Finding Committee on Un-American Activities. The demurrer was sustained without leave to amend and judgment was entered in favor of defendants. From this judgment the plaintiffs appeal.

Appellants here contend that their complaint sufficiently states a cause of action in tort for wrongful inducement of a breach of contract; that the complaint does not contain facts either on its face or from facts of which judicial notice must be taken which show that respondents' conduct was privileged; and that defendants were not protected by the doctrine of sovereign immunity, and ask that judgment of dismissal entered on the demurrer sustained without leave to amend be reversed.

Respondents contend that the demurrer was properly sustained without leave to amend because the lower court, having taken judicial notice of certain facts which, when read with the complaint, disclose the following defenses: absolute privilege for legislative acts within the sphere of legislative authority; qualified privilege for fair and true reports of the proceedings of a public meeting lawfully convened for a lawful purpose and open to the public; privilege to induce a breach of contract under section 767 of the Restatement of Torts (social interest to be protected; relationship of the parties); and privilege to induce another to stand upon his legal rights. They also urge that by allowing a cause of action for wrongful inducement to breach a contract under the facts here presented would destroy the immunity given public officials when acting in their official capacity and mention that a judgment should not be reversed to permit recovery of nominal damages.

At the outset, it may be said that in this state a cause of action may lie for wrongfully inducing one to breach a contract of employment if such act is not protected by some privilege of immunity. Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 112 P.2d 631. The principal question before this court, therefore, is whether or not, under the facts stated in the complaint, defendants may rely on a privilege for making a communication such as is here alleged or whether they may assert an immunity ot suit for damages by reason of their status as legislators.

Although it is often stated that in considering a demurrer a court is bound to accept the truth of the allegations thereof, this statement may, in certain instances, be modified where, by the nature of the pleading, the court is apprised of the existence of a fact or facts of which it is bound to take judicial notice under the laws of this state. In 39 Cal.Jur.2d, § 22, under the title 'Facts Judicially Noticed' it is said: '* * * In determining the sufficiency of a pleading, it may be read as though it included all such facts, though not pleaded, and even when the pleading contains an express allegation to the contrary. But the general rule of pleading that a demurrer admits the facts pleaded has no application to facts of which the court may take judicial notice. Allegations contrary to facts which the court may judicially notice are not admitted by demurrer, but must be...