Lipman v. Brisbane Elementary School District

• Decision Date: 27 January 1961
• Citation: 55 Cal.2d 224,11 Cal.Rptr. 97,359 P.2d 465
• Parties: , 359 P.2d 465 Natalie M. LIPMAN, Appellant, v. BRISBANE ELEMENTARY SCHOOL DISTRICT et al., Respondents. S. F. 20483.
• Court: California Supreme Court

Page 97

11 Cal.Rptr. 97

55 Cal.2d 224, 359 P.2d 465

Natalie M. LIPMAN, Appellant, v. BRISBANE ELEMENTARY SCHOOL DISTRICT et al., Respondents.

S. F. 20483.

Supreme Court of California, In Bank.

Jan. 27, 1961.

Rehearing Denied Feb. 21, 1961.

Barnett & Robertson, Phillip Barnett and Rodney H. Robertson, San Francisco, for appellant.

E. Conrad Connella, C. S. Sherburne, Earl B. Myers and Richard H. Perry, San Francisco, amici curiae on behalf of appellant.

Keith C. Sorenson, Dist. Atty., and L. M. Summey, Deputy Dist. Atty., Redwood City, for respondent.

GIBSON, Chief Justice.

This action for damages was brought by plaintiff, superintendent of defendant school district, against the district, three trustees, the county superintendent of schools and the district attorney. A demurrer to the complaint was sustained without leave to amend, and plaintiff has appealed from the ensuing judgment.

The Complaint Against the School District.

It is alleged in substance against the district that the three trustees, constituting a majority of the board and acting within the scope of their official duties, maliciously engaged in a course of conduct for the purpose of discrediting plaintiff's reputation and forcing her out of her position. The asserted conduct of the trustees consisted primarily of disparaging statements made by them concerning plaintiff to various persons including district employees attending secret meetings, newspaper reporters porters and members of the public to the effect that she was dictatorial, operated a 'rubber stamp board,' was overpaid, suppressed facts from the board, tampered with minutes of board meetings, received 'kickbacks' from district employees, used school employees and school time to engage in political campaigns, engaged in 'shady dealings' and 'cleaned up' on business transactions involving the district, and that a grand jury investigation was being made of plaintiff concerning discrepancies in construction funds. It is further alleged that the conduct of the trustees constituted a repudiation by the district of plaintiff's contract and so maligned her reputation and integrity as to prevent her from performing her duties.

In Muskopf v. Corning Hospital District, Cal., 11 Cal.Rptr. 89, we held that the rule of governmental immunity may no longer be invoked to shield a public body from liability for the torts of its agents who acted in a ministerial capacity. But it does not necessarily follow that a public body has no immunity where the dis- cretionary conduct of governmental officials is involved. While, as pointed out in the Muskopf case, a governmental agent is person- ally liable for torts which he commits when acting in a ministerial capacity, a different situation exists with respect to discretionary conduct. Because of important policy considerations, the rule has become established that government officials are not personally liable for their discretionary acts within the scope of their authority even though it is alleged that their conduct was malicious. Hardy v. Vial, 48 Cal.2d 577, 582-584, 311 P.2d 494, 66 A.L.R.2d 739; Coverstone v. Davies, 38 Cal.2d 315, 322, 239 P.2d 876; White v. Towers, 37 Cal.2d 727, 730-732, 235 P.2d 209, 28 A.L.R.2d 636; see Barr v. Matteo, 360 U.S. 564, 569 et seq., 79 S.Ct. 1335, 3 L.Ed.2d 1434. The subjection of officials, the innocent as well as the guilty, to the burden of a trial and to the danger of its outcome would impair their zeal in the performance of their functions, and it is better to leave the injury unredressed than to subject honest officials to the constant dread of retaliation. Hardy v. Vial, 48 Cal.2d 577, 582-583, 311 P.2d 494, 66 A.L.R.2d 739.

The immunity of the agency from liability for discretionary conduct of its officials, however, is not coextensive with the immunity of the officials in all instances. See 3 Davis, Administrative Law Treatise (1958), 482-505, 542-544; 2 Harper and James, the Law of Torts, 1640-1642, 1657-1665; Hall and Wigmore, Compensation for Property Destroyed to Stop the Spread of a Conflagration (1907), 1 Ill.L.Rev. 501, 514 et seq. The danger of deterring official action is relevant to the issue of liability of a public body but is not decisive of that issue. It is unlikely that officials would be as adversely affected in the performance of their duties by the fear of liability on the part of their employing agency as by the fear of personal liability. The community benefits from official action taken without fear of personal liability, and it would be unjust in some circumstances to require an individual injured by official wrongdoing to bear the burden of his loss rather than distribute it throughout the community. Although it may not be possible to set forth a definitive rule which would determine in every instance whether a governmental agency is liable for discretionary acts of its officials, various factors furnish a means of deciding whether the agency in a particular case should have immunity, such as the importance to the public of the function involved, the extent to which governmental liability might impair free exercise of the function, and the availability to individuals affected to remedies other than tort suits for damages.

With respect to the complaint against the district, the acts alleged, insofar as they came within the scope of authority of the trustees, were of a discretionary character. As we shall see in discussing the complaint against the individual defendants, the trustees were immune as to such acts. There is a vital public interest in securing free and independent judgment of school trustees in dealing with personnel problems, and trustees, being responsible for the fiscal well-being of their districts, would be especially sensitive to the financial consequences of suits for damages against the districts. It is also significant that, without holding a school district liable in tort for acts like those complained of, an employee from the outset has protection, in the form of mandamus or recovery for breach of contract, against consequences which would be among the most harmful and tangible, i. e., wrongful dismissal or suspension. Hancock v. Board of Education, 140 Cal. 554, 561-562, 74 P. 44; Main v. Claremont Unified School Dist., 161 Cal.App.2d 189, 192, 207, 326 P.2d 573; Titus v. Lawndale School Dist., 157 Cal.App.2d 822, 829-830, 322 P.2d 56.

The district is immune from tort liability for the alleged acts of the trustees within the scope of their authority, and familiar principles of agency preclude its liability for acts outside the scope of their authority. Accordingly, the complaint does not state a cause of action in tort against the district.

A school district, however, may be liable for breach of contract where its governing body, acting as such and complying with required formalities, either expressly repudiates a contract or does some act which under generally accepted principles of law prevents the performance of the other contracting party. Ed.Code, §§ 1006, 2402 ^*; Hancock v. Board of Education, 140 Cal. 554, 561-562, 74 P. 44, (relying on provisions of the former Political Code similar to sections 1006 and 2402 of the Education Code); Morgan v. Board of Education, 136 Cal. 245, 246, 68 P. 703; Giguiere v. Patterson, 138 Cal.App. 167, 171-173, 31 P.2d 804; Kistner v. Pomeroy, 84 Cal.App. 550, 551 et seq., 258 P. 619; see Titus v. Lawndale School Dist., 157 Cal.App.2d 822, 830, 322 P.2d 56; cf. Denio v. City of Huntington Beach, 22 Cal.2d 580, 591, 140 P.2d 392, 149 A.L.R. 320; Cope v. County of Sutter, 206 Cal. 445, 454-455, 274 P. 750. ¹

Where, as here, the alleged repudiation or prevention of performance arises out of asserted affirmative action of trustees, the district is not liable unless it appears that they have acted as a board and have complied with all the formalities required by law. Section 2204 of the Education Code ^** provides, 'The governing board of any school district shall: * * * (b) Transact its business at regular of special meetings called for the purpose * * *,' and section 2204.2 ^*** provides, 'No action authorized or required by law shall be taken by the governing board of a school district except in a meeting open to the public.' In the analogous case of Barnhardt v. Gray, 15 Cal.App.2d 307, 309 et seq., 59 P.2d 454, decided before the adoption of section 2204.2, it was held that in order to employ a teacher there must be a regular or special meeting of the board of trustees, that 'the board must act as a board and not as individual members,' and that two members of a board consisting of three members had no power, when meeting casually on the street or elsewhere, to employ a teacher. Plaintiff concedes that none of the alleged improper conduct consisted of or resulted from formal action of the board as such, and it is apparent that the complaint cannot be amended to cure the defect. Cf. Lemoge Electric v. County of San Mateo, 46 Cal.2d 659, 662, 664, 297 P.2d 638.

In the absence of compliance with the statutory requirements there was no authority for the acts complained of by plaintiff insofar as concerns the alleged breach of contract, and it is obvious that the district cannot properly be held liable for acts which have not been duly authorized. This is not a case of failure on the part of the district to take affirmative action called for by the contract; in the event of such a breach, of course, the lack of formal action by the board would not preclude liability on the part of the district. Under the circumstances before us the conduct of the three trustees must be treated as conduct by unauthorized third persons.

The judgment must be affirmed with respect to plaintiff's action against the district.

The Complaint Against the Trustees.

It is alleged that the three trustees maliciously engaged in a course of conduct which was designed to obtain the removal of plaintiff from her position and resulted ...