Scott v. McDonnell Douglas Corp.

• Decision Date: 14 February 1974
• Citation: 37 Cal.App.3d 277,112 Cal.Rptr. 609
• Court: California Court of Appeals Court of Appeals
• Parties: Perry SCOTT, Plaintiff and Appellant, v. McDONNELL DOUGLAS CORPORATION et al., Defendants and Respondents. Civ. 41790.

Page 609

112 Cal.Rptr. 609

37 Cal.App.3d 277

Perry SCOTT, Plaintiff and Appellant, v. McDONNELL DOUGLAS CORPORATION et al., Defendants and Respondents.

Civ. 41790.

Court of Appeal, Second District, Division 5, California.

Feb. 14, 1974.

As Modified on Denial of Rehearing March 6, 1974.

As Corrected April 2, 1974.

Hearing Denied April 10, 1974.

Perry Scott, in propria persona, for plaintiff and appellant.

Brill, Hunt, DeBuys & Burby by John R. Johnson, Los Angeles, Louis Lieber, Jr., and Eberhard Schmoller, Santa Monica, for defendant and respondent McDonnell Douglas Corp.

James J. McCarthy, Los Angeles, for defendants and respondents Clo A. Hoover, Virgil B. Kingsley, and Lowell T. Patton.

STEPHENS, Acting Presiding Justice.

Plaintiff Perry Scott appeals from an order of dismissal of his third amended complaint. The complaint sought damages for 'defamation; interfering with a contractual relationship; and suffering and emotional distress' while plaintiff was City Manager of the City of Santa Monica. Prior to the dismissal, the court had sustained defendants' demurrer on grounds of uncertainty and for failure to state a cause of action without leave to amend plaintiff's first and third causes of action (defamation, emotional distress and mental suffering respectively), and with leave to amend his second cause of action (interference with a contractual relationship). Plaintiff failed to amend.

The Complaint

In essence, the third amended complaint alleges the following: Prior to publication of the matter complained of, plaintiff enjoyed a good reputation in the community with respect to the high standards of his occupation and the excellence and quality of his work and services rendered to the City of Santa Monica. For sometime prior to December 10, 1970 and subsequent thereto, defendant McDonnell Douglas Corporation by and through its officers, agents, servants and employees (Hochmuth, Latting, and McCloskey) ¹ and defendant-Councilmen Hoover, Kingsley and Patton (and a number of Does) unlawfully, intentionally, maliciously and willfully conspired, combined and agreed to enter into a scheme to defame the plaintiff's name and reputation and to cause plaintiff's removal or resignation as City Manager. The reason for the conspiracy against plaintiff was because plaintiff was and is an impediment to a zoning ordinance change which would permit a commercial development of McDonnell Douglas' property and property of the City of Santa Monica as to which McDonnell Douglas has an option to purchase. The zoning ordinance would increase the value of McDonnell Douglas' property from $8,000,000 to more than $20,000,000. Councilmen Hoover, Kingsley and Patton, and McDonnell Douglas, agent, McCloskey, did the acts complained of 'in excess of their authority and outside the scope of their duties as members of the City Council.'

The first cause of action (for defamation) names as defendants McDonnell Douglas, Councilmen Hoover, Kingsley, and Patton (and a number of Does), and alleges that in pursuance of the conspiracy, defendants 'without immunity and without privilege published three defamatory letters ² about and concerning (plaintiff).' The second cause of action (interference with a contractual relationship) names only McDonnell Douglas and the Doe defendants, and alleges that in addition to the publication of the defamatory letters, defendants 'in furtherance of their conspiracy and without due process or the consent of (plaintiff) caused the termination of appellant's contract with the (City) and the reduction of his salary in the amount of $6,000 per year, making performance by (plaintiff) more expensive and burdensome in a coercive attempt to force (plaintiff's) resignation.' The third cause of action for 'mental suffering and emotional distress' names as defendants McDonnell Douglas (and Does) and alleges that 'in addition to the acts of unjustifiable interference with plaintiff's contractual relationship, (McDonnell Douglas') agent, on the 17th day of December, 1970, in pursuance of the conspiracy directed the republication of the letters alleged to be defamatory, and on the 9th day of February, 1971, in continuance of the conspiracy, falsely and maliciously charged (plaintiff) with rigging polygraph examinations, electronic surveillance of city employees, electronic surveillance of council members, spying on council members, and the use of undue influence on city employees.'

In brief, on or about December 17, 1970, at a meeting of the Santa Monica City Council, defendant Councilman Patton handed to Gene Hall, ³ Richard Aronoff Service Director for the City, and Earl Reinbold, the City Chief of Police (who were in the audience) copies of a letter dated December 10, 1970 which he had addressed to plaintiff, and then Patton distributed copies to members of the council, the City Clerk, and to plaintiff. According to plaintiff, this letter, among other things, charges him with a lack of moral and ethical character:

'I know it can well become the attitude of a dictatorial 'boss' that, having title, you will stoop to any form of action in your power to continue your stay in office.';

that plaintiff seeks to impose totalitarian power maintained only through the use of force:

'Your past experience in other cities should have proven to you that you cannot be a dictator in a democratic city, even if you are the City Manager and have the power of appointment of the Chief of Police.' 'For the record I want you, the City Manager, and each of your employees to understand that as long as I serve this city as a City Councilman I will not be horse-whipped or hog-tied by you or any of your employees for doing my duty.' 'So you choose to write me a letter, releasing a copy to the press, in which you assume the position of not only City Manager but City Attorney, as well as City Dictator.';

and charge plaintiff with unethical conduct:

'I find it impossible to believe that a City Councilman of this city is required to sit idly by and succumb to malicious character assassination by an employee of that Council, of which he is a member, because he chooses to know what is going on in the various departments of the city.'

Plaintiff alleges that the second defamatory letter, dated December 17, 1970, addressed to him, was prepared by McDonnell Douglas through its 'agents' Hochmuth, Latting, and McCloskey in the executive offices of McDonnell Douglas; that this letter was initially published to Peggy Ann Prentice and Alice Hynd; ⁴ and that this publication was not during a meeting of the City Council (though plaintiff did not set forth where the publication did in fact occur). Subsequent to the initial publication of this letter, McCloskey delivered it to Hoover, with directions to her to read the contents at the City Council meeting, and Hoover read the contents into the record of the meeting. This letter, signed by Councilmen Hoover, Kingsley, McCloskey, and Patton, was a letter of 'censure and reprimand,' which stated, among other things:

'The City Council views with grave concern your complete lack of empathy and understanding of the processes of government in this city. You have failed to recognize that the City Manager has the responsibility to execute the policies laid down by the City Council.

'Your statement showed no understanding of the problems faced by the Council in reaching its decision. However, of a more serious nature is that it indicated the mutinous character to which your administration of the City's affairs has descended.'

Plaintiff alleges that the third allegedly defamatory letter (dated December 17, 1970, addressed to plaintiff, and signed by the same four councilmen) was also prepared by McDonnell Douglas' 'agents' Hochmuth, Latting, and McCloskey in the executive offices of McDonnell Douglas; it was also initially published to Prentice and Hynd. Subsequent to that publication, McCloskey delivered the letter to Kingsley, with directions for Kingsley to read its contents at the City Council meeting of December 17. Plaintiff contends that portions of the third letter defamed him in that the letter portrayed him as dishonest:

'A city is most fortunate if it has a City Manager who is dedicated to efficiently and honestly administer the affairs of the City for the people and through the people's elected representatives--the City Council. The people of Santa Monica are not so fortunate.';

and that plaintiff has committed prior misconduct:

'It appears you are reluctant to learn from your past mistakes. Therefore this Council feels it is necessary to take written action rather than repeated verbal communication when you continue to use the power of your administrative office to influence the legislative functions of government (the City Council).'

Plaintiff's second cause of action is premised upon the tort of interference with a contractual relationship, and alleges that McDonnell Douglas, through its agents McCloskey, Latting and Hochmuth, conspired with members of the Santa Monica City Council to terminate plaintiff's contractual relationship with the City and reduce his salary $6,000 per year in an attempt to coerce plaintiff to resign from his position; that he was so terminated and his salary was so reduced.

Plaintiff's third cause of action sounds also in tort. Liability is predicated upon the theory of intentional infliction of emotional distress, based in large part upon the publication of the statements alleged to be defamatory in the first cause of action. Plaintiff further alleges that certain other statements were made which caused him emotional distress, i.e., 'that . . . John W. McCloskey as the agent, servant and employee of McDonald Douglas Corporation falsely and maliciously charged Plaintiff with rigging polygraph examinations, electronic surveillance of City employees, electronic surveillance of council members, spying on council members, and the use of undue influence on city...