Lesperance v. North Am. Aviation, Inc.

• Citation: 217 Cal.App.2d 336,31 Cal.Rptr. 873
• Court: California Court of Appeals
• Decision Date: 19 June 1963
• Parties: David E. LESPERANCE, Plaintiff and Appellant, v. NORTH AMERICAN AVIATION, INC., a corporation, Defendant and Respondent. Civ. 26938.

Page 873

31 Cal.Rptr. 873

217 Cal.App.2d 336

David E. LESPERANCE, Plaintiff and Appellant, v. NORTH AMERICAN AVIATION, INC., a corporation, Defendant and Respondent.

Civ. 26938.

District Court of Appeal, Second District, Division 2, California.

June 19, 1963.

David E. Lesperance, in pro. per.

Flint & MacKay, Philip M. Battaglia, Edwin Freston, Los Angeles, for respondent.

FOX, Presiding Justice.

A general demurrer to plaintiff's second amended complaint was sustained without leave to amend. He has appealed from the ensuing judgment of dismissal.

Plaintiff's grievance grows out of the termination of his employment by the Rocketdyne Division of North American Aviation. Appearing in propria persona he seeks to recover damages for defamation, interference with contract rights, mental anguish, maintenance of a plant with improper working conditions, fraud, false representations, and conspiracy.

The first and second causes of action may be considered together since they essentially deal with the same aspect of plaintiff's grievance, the first seven paragraphs of plaintiff's first cause of action being incorporated in his second cause of action.

Plaintiff alleges that he was employed by Rocketdyne as a technical writer from October 1955 to June 1956; that he was re-employed by Rocketdyne on October 10, 1956, until his employment was terminated by Rocketdyne as of May 3, 1957. He alleges, inter alia, that on or about April 14, 1957, his supervisor informed him that he plaintiff, was suffering from mental illness and ordered plaintiff to take two weeks off with pay and six months off without pay and during such time said supervisor ordered him to see a psychiatrist; that as a consequence plaintiff did not subsequently report to work; that on or about May 7, 1957, he received notice from Rocketdyne informing him of the termination of his employment as of May 3. Although plaintiff does not have this termination statement, he alleges on information and belief that it contained the following:

'Resigned, not Discharged

'Reason for Termination: 17B, Absent 5 days without notification

'Eligible for Rehire: Yes.'

Plaintiff further alleges that thereafter a prospective employer wrote a letter to defendant requesting a statement as to why his employment with the Rocketdyne Division of North American was terminated; that in reply to said letter defendant advised that 'David E. Lesperance was terminated from his employment with this company as a result of 5 consecutive working days' absence without notification to the company.' He then alleges that in omitting to mention that his termination was completely voluntary, defendant's statement created a false impression that the termination of his employment with defendant was involuntary. He also alleges that defendant acted with malice toward him and with the intent and design to injure, disgrace and defame him and that as a proximate result thereof he has been unable to obtain gainful employment as a technical writer to his substantial damage.

Examination of the clerk's transcript reveals that this cause of action is simply a revision and enlargement of the allegations contained in the first cause of action in plaintiff's first amended complaint but with the omission of the allegation that defendant's report re termination of his employment with defendant was made to Lockheed Aircraft Co., Sunnyvale, California, on or about February 1, 1959, in response to a prior written inquiry from the latter company. ¹

Plaintiff's second cause of action charges defendant with malicious interference with an employment opportunity by furnishing his employer or prospective employer the above information relative to the termination of plaintiff's employment with defendant.

Examination of the corresponding cause of action in plaintiff's first amended complaint discloses that this report was made to the Frank Mayer Engineering Company of Culver City, California, in response to a request in writing from that concern as to why plaintiff's employment with the Rocketdyne Division of defendant was terminated. This report by defendant is alleged to have been made on or about October 1, 1959.

It is apparent from the face of plaintiff's second amended complaint that a qualified privilege is shown in defendant in making the challenged report in reference to the termination of plaintiff's employment with defendant. The pleading shows (when examined in the light of the earlier pleading--see footnote 1, supra) that defendant made its report in response to an inquiry from other actual or potential employers of plaintiff. This brings these causes of action within the purview of Civil Code, section 47, subdivision 3 ² if made without malice. 'In such a case malice becomes the gist of the action and it must exist as a fact before the cause of action will lie. * * * Hence, where the complaint discloses a case of qualified privilege, no malice is presumed ³ and in order to state a cause of action the pleading must contain affirmative allegations of malice in fact.' (Locke v. Mitchell, 7 Cal.2d 599, 602, 61 P.2d 922, 923.) (Emphasis added.) This is because 'the very privilege creates a presumption that the communication is used innocently and without malice. [Citations.]' (Jones v. Express Pub. Co., 87 Cal.App. 246, 256, 262 P. 78, 83.)

To destroy the privilege plaintiff must allege that defendant entertained toward him a feeling of hatred or ill will "* * * going beyond that which the occasion apparently justifies * * *" and "'different from that which prima facie rendered the communication privileged, and being a motive contrary to good morals."' (DeMott v. Amalgamated Meat Cutters, 157 Cal.App.2d 13, 27, 320 P.2d 50, 58; cf. Civil Code, § 48a, subd. 4(d).) Accord: Everett v. California Teachers Assn., 208 A.C.A. 331, 335, 25 Cal.Rptr. 120.

Plaintiff has set forth no facts showing that malice existed on the part of defendant at the time it made its requested reports. His allegations are nothing more than mere conclusions of the pleader. They do not meet on a factual basis the standard established in the above quotation from the DeMott case.

From the foregoing it is apparent that plaintiff has not alleged a justiciable cause of action in either his first or second asserted causes of action.

Plaintiff's third and fourth causes of action are based upon alleged defamatory the demurrer to the original complaint: of a judicial proceeding. In particular, the third cause of action is based on the following statement contained in defendant's points and authorities filed in support of he demurrer to the original complaint: 'No California authority found has thus held language defamatory per se which on its face fell short of charging incompetency, or 'reprehensible' conduct. The statement that a plaintiff was 'discharged for good and sufficient reasons' is not defamatory per se in this State. And the cases from other jurisdictions make it clear that merely stating as in the instant case that a plaintiff was discharged for 'not performing his job satisfactorily' which on its face falls short of charging incompetency, is not defamatory per se. Such words of necessity require the pleading of explanatory matter and extrinsic facts, innuendo and inducement, to give them a defamatory meaning.'

The fourth cause of action is based on statements made during the course of argument by defendant's counsel at the hearing on its demurrer to the first amended complaint.

That neither of these alleged causes of action states any ground for recovery is settled in this state by both statutory enactment and the cases. In Albertson v. Raboff, 46 Cal.2d 375, at p. 379, 295 P.2d 405, at p. 408, the court stated: '* * * [S]ubdivision 2 of section 47 [Civil Code] states the long-established rule that publications made in the course of a judicial proceeding are absolutely privileged. [Citations.]'

The gravamen of plaintiff's fifth cause of action is: 'That the plaintiff, as a direct result of the work he was doing at Rocketdyne, became mentally ill. And that such mental illness was entirely due to the acts and negligence of the defendant. And that defendant had a duty to provide plaintiff with working conditions free of serious mental hazards, and that the defendant failed to perform that duty through his [sic] acts and negligence. And that the defendant sufferred [sic] and encouraged conditions that were intrinsically mentally disturbing to exist. And that, plaintiff having become mentally ill, defendant maliciously and wilfully agravated [sic] that mental illness.' It is apparent from a mere reading of this paragraph that no facts are stated upon which to predicate liability for defendant's mental condition. The allegations are all of a conclusionary character. This pleading violates the basic concept of code pleading stated in section 426, paragraph 2, Code Civil Procedure: 'The complaint must contain: * * * 2. A statement of the facts cosntituting the cause of action, in ordinary and concise language;' (Emphasis added.) This princiciple is succinctly stated in Vilardo v. County of Sacramento, 54 Cal.App.2d 413, at page 418, 129 P.2d 165, at page 168, where the court stated: 'It is elementary that a pleading must allege facts and not conclusions; * * *.' It is apparent that plaintiff has failed to meet these essential requirements in his alleged fifth cause of action.

Plaintiff's sixth cause of action is akin to his fifth. As a basis for establishing liability on the part of defendant for his condition, plaintiff alleges: 'That defendant has sufferred [sic] and encouraged the rumor to be spread abroad that the defendant will do everything the defendant can to 'get even' with a person the defendant feels inimical to; specifically, the defendant will use its influence to prevent such a person from being employed in the aircraft industry, or else-where. This the defendant will do by the malicious distortion of...