Tietz v. Los Angeles Unified School Dist.

• Decision Date: 21 December 1965
• Citation: 238 Cal.App.2d 905,48 Cal.Rptr. 245
• Court: California Court of Appeals Court of Appeals
• Parties: JohnnieMae Patterson TIETZ et al., Plaintiffs and Appellants, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. Civ. 28786.

Page 245

48 Cal.Rptr. 245

238 Cal.App.2d 905

JohnnieMae Patterson TIETZ et al., Plaintiffs and Appellants, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

Civ. 28786.

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

Dec. 21, 1965.

Rehearing Denied Jan. 6, 1966.

Hearing Denied Feb. 16, 1966.

Arthur E. Briggs and J. B. Tietz, Los Angeles, for plaintiffs and appellants.

Harold W. Kennedy, County Counsel, Veatch, Thomas, Carlson & Dorsey, and Henry F. Walker, Los Angeles, for defendants and respondents.

ROTH, Presiding Justice.

Plaintiff herein, JohnnieMae Patterson Tietz, is a certificated teacher and certificated librarian and for more than ten years prior to April 7, 1962, was employed as and was acting as the librarian of the Nathaniel Narbonne High School, a senior high school in what is currently termed Los Angeles Unified School District. In various causes of action she alleges and prays for damages in excess of $500,000. Plaintiff J. B. Tietz is the husband of JohnnieMae and joins in the complaint in some of the causes of action and alleges and prays for total damages in the sum of $33,590.39. Both plaintiffs also pray for punitive damages, but do not name the amount. Both plaintiffs will hereinafter sametimes be referred to as appellants.

This appeal is taken from judgments of dismissal after sustaining the demurrers of respondents Los Angeles Unified School District, Board of Education of the City of Los Angeles (herein called 'public school agencies'), and respondents Evelyn L. Marienthal, Phyllis O. Morey (herein called 'wives') without leave to amend, and from judgments of dismissal after sustaining the demurrer of respondents Michael J. Marienthal and Herbert E. Morey (herein called 'principals') with leave to amend, appellants having failed to amend within the allotted time. The public school agencies and the wives had demurred to two previous complaints, and all parties demurred to the second amended complaint after which judgment was entered.

The allegations of all causes of action in the complaint aside from the element of damage, referred to in the different causes of action, are substantially the same.

Mrs. Tietz had permanent tenure as a teacher and a librarian at Narbonne High School in Los Angeles. Principals Michael Marienthal and Herbert Morey were viceprincipal and principal, respectively, of Narbonne. During the first quarter of 1962 principals thereatened appellant in order to induce her to transfer to another school. The threats were made pursuant to a plan to coerce by threats and duress teachers with seniority greater than that of the principals to transfer from Narbonne. In March of 1962, the principals interviewed Mrs. Tietz and stated that her application for a sabbatical had been approved but that on her return 'We advise you to transfer.' In reply to Mrs. Tietz's request for reasons 'they [principals] falsely stated to her that certain supervisors had given bad reports and ratings of her work, * * *.' In addition, principals 'grilled her with accusatory questioning of her work as librarian, and pretending to use a number of 3 X 5 cards which were in their hands and falsely claiming that each represented in detail a reported transgression or dereliction of her duties as librarian and teacher; * * *.'

Mrs. Tietz's complaint alleges further that she had a fine record, no prior difficulty and that 'said claims, which threatened grounds for discipline, dismissal or removal of [appellant] from her said position * * *' were known to be false by the principals and intended to harm her. She asserts mental distress and physical injury, and prays for general and special damages. J. B. Tietz, her husband, also asked for general and special damages.

The public school agencies were named as defendants in addition to the principals, on the theories of respondeat superior, and negligence in hiring the principals. The wives of the principals were named defendants as co-conspirators, with their husbands. We find nothing in any of the causes of action to sustain a theory of conspiracy. The judgment of dismissal entered upon a demurrer sustained without leave is proper. Thus facet of the litigation will be further treated (infra).

The sole issue before us insofar as the principals are concerned, is whether the principals functioned within a discretion inherently or by law made a part of their respective positions.

Severing the ultimate facts alleged in the complaint from conclusions and recitals therein, there is no doubt in our minds that the principals were performing the functions and assuming the responsibilities for which they are employed.

The State Board of Education has promulgated certain rules for the government of the public schools in this state, among which are the following, found in the California Administrative Code, title 5:

Article 3, section 16: 'Responsibility of Principal. The principal is responsible for the supervision and administration of his school.'

Article 8.7, section 78.9: 'Functions of Certain Administrative and Supervisory Positions in School Districts.'

* * *

* * *

'(m) Principal. A position entitled 'principal' * * * has the following function: To serve * * * as chief executive officer of one or more schools with total responsibility to manage all affairs of the school, including general control and supervision of all certificated and classified employees assigned to serve in the school. [Emphasis added.]

'(n) Vice-Principal. A position entitled 'vice-principal' * * * has the following functions:

'(1) To perform for the principal such duties of the principal as the latter may delegate to him. * * *' ¹

The law of governmental immunity, as it applies to both governmental agencies and officials, is stated in Lipman v. Brisbane Elementary School District, 55 Cal.2d 224, at p. 229, 11 Cal.Rptr. 97, at p. 99, 359 P.2d 465, at p. 467: 'In Muskopf v. Corning Hospital District , 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 discretionary conduct of governmental officials is involved. While, as pointed out in the Muskopf case, a governmental agent is personally 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 court in the Lipman case points out: '[T]his rule applies not only to acts essential to the accomplishment of the main purposes for which the office was created but also to acts which, although only incidental and collateral, serve to promote those purposes. White v. Towers, 37 Cal.2d 727, 733, 235 P.2d 209, 28 A.L.R.2d 636.' (Id. at p. 233, 11 Cal.Rptr. at p. 102, 359 P.2d at p. 470; see also Elder v. Anderson, 205 Cal.App.2d 326, 333, 23 Cal.Rptr. 48.)

If appellant's work had indeed been unsatisfactory, it is obvious that respondent principals would have been acting within the scope of their duties in conducting an interview in which appellant was taken to task. Assuming arguendo that the conduct alleged goes beyond the bounds of permissible personnel supervision and proper discretion, to allow an action of this nature to be maintained for the purpose of determining the truth of allegations which contest and challenge the propriety used in the exercise of a discretion which exists, would be to frustrate the very purpose of the immunity. In this respect we quote the oft-repeated words of Judge Learned Hand in Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581: 'It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. * * *' We hold, therefore, that the second amended complaint failed to state a cause of action against the respondent principals, who were immune from suit, and that the judgments of dismissal in favor of principals following appellant's failure to amend, were proper. (C.C.P. § 581(3).)

The governmental immunity of the public school agencies is governed by other principles of law. In Lipman v. Brisbane Elementary School District, supra, the court at pp. 229-230, of 55 Cal.2d, at p. 99 of 11 Cal.Rptr., at p. 467 of 359 P.2d says: 'The immunity of the agency from liability for...