Gold v. Los Angeles Democratic League

The first count is based on defendants’ alleged violation of Elections Code section 12057,^[2] which provides that no candidate or committee in his behalf may misrepresent that the candidate has the support of a county or state central committee of a party with which he is not affiliated. (See: 17 Cal.Jur.2d, Rev., Elections § 120, p. 436.)

Section 12057 provides that any member of a county or state central committee may commence an action to enjoin the acts prohibited by the statute. But an injunction lies only to prevent threatened injury and has no application to wrongs which have been completed. (Griffith v. Dept, of Public Works (1959) 52 Cal.2d 848 , 853 [ 345 P.2d 469 ]; Scott v. Scott (1958) 51 Cal.2d 249 , 254 [ 331 P.2d 641 ]; Blackmore Investment Co. v. Johnson (1931) 213 Cal. 148 , 150-151 [ 1 P.2d 978 ]; Blake v. City of Eureka (1927) 201 Cal. 643 , 661-662 [ 258 P. 945 ], disapproved on other grounds in Bellus v. City of Eureka (1968) 69 Cal.2d 336 , 346 [ 71 Cal.Rptr. 135 , 444 P.2d 711 ]; People v. Paramount Citrus Assn. (1957) 147 Cal.App.2d 399 , 412-413 [ 305 P.2d 135 ].) Thus, to authorize the issuance of an injunction, it must appear with reasonable certainty that the wrongful acts will be continued or repeated. (Rosicrucian Fellow, v. Rosicrucian etc. Ch. (1952) 39 Cal.2d 121 , 144 [ 245 P.2d 481 ]; Allen v. Hotel & Restaurant etc. Alliance (1950) 97 Cal.App.2d 343 , 348 [ 217 P.2d

Ordinarily, where a statute other, perhaps, than a provision in the four original codes (Orloff v. Los Angeles Turf Club (1947) 30 Cal.2d 110 , 113 [ 180 P.2d 321 , 171 A.L.R. 913 ]; Civ. Code, §§ 4, 23) creates an obligation and also provides a remedy for breach of that obligation, the statutory remedy so provided is exclusive. (See: Russell v. Pacific Railway Co. (1896) 113 Cal. 258 , 261 [ 45 P. 323 ]; County of Monterey v. Abbott (1888) 77 Cal. 541 , 543 [ 18 P. 113 , 20 P. 73 ]; Smith v. Omnibus R. R. Co. (1868) 36 Cal. 281 , 283; Wardv. Severance (1857) 7 Cal. 126 , 129; People v. Craycroft (1852) 2 Cal. 243 , 244. But see: Orloff, supra, 30 Cal.2d at p. 118, which case is readily distinguishable for the reason, if no other, that the statutorily provided remedy affords adequate relief, properly employed.) Here, a cause of action for damages could not be predicated upon defendants’ alleged violation of Elections Code section 12057.^[3]

The second and third counts are based upon alleged constructive fraud and negligent misrepresentation, respectively. “Constructive fraud” arises from a breach of duty by one in a confidential or fiduciary relationship to another which induces a justifiable reliance by the latter to his prejudice. (Civ. Code, § 1573; Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123 , 129 [ 54 Cal.Rptr. 533 ].)

Negligent misrepresentation is a form of “actual fraud.” (Civ. Code, §§ 1572, subd. 2, 1710, subd. 2,^[4] Gagne v. Bertrán (1954) 43 Cal.2d 481 , 487, fn. 4 [ 275 P.2d 15 ]; Clar v. Board of Trade (1958) 164 Cal.App.2d

Thus, two elements of fraud, whether actual or constructive, are: the plaintiff’s justifiable reliance and resulting damage to him.

Assuming that plaintiff was among those members of the general public to whom defendants mailed the pamphlet containing the purported misrepresentation, neither the second count nor the third count alleges that plaintiff reasonably relied on such misrepresentation. Moreover, because of the nature of the alleged misrepresentation, such an allegation would have been impossible to make because plaintiff, as the candidate for city controller endorsed by, and as a member of, the Los Angeles County Democratic Central Committee, obviously could not have relied upon, or been misled by, defendants’ alleged misrepresentation that another candidate for that office was endorsed by the Democratic Party.

To state a cause of action at law based upon fraud (as distinguished from a cause of action in equity for rescission on the ground of fraud), the plaintiff must allege not only reliance but that, by reason of the fraud, he has suffered pecuniary damage in some amount. (Munson v. Fishburn (1920) 183 Cal. 206 , 219-220 [ 190 P. 808 ]; Abbot v. Stevens (1955) 133 Cal.App.2d 242 , 247 [ 284 P.2d 159 ].) Lacking in the second and third counts is an allegation that plaintiff suffered any actual damage because of defendants’ misrepresentation.^[5]

It follows that neither the second nor the third count states a cause of action for fraud, actual or constructive, nor, because plaintiff could not

The fourth count is based upon intentional interference with plaintiff’s prospective employment (i.e., interference with his opportunity to be elected to the office of city controller). An action lies for intentional interference with advantages which are merely prospective; such an action is governed by the principles applicable to the tort of inducing a breach of contract intentionally and without justification. (See: 4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 392, p. 2643.) To state a cause of action for inducing a breach of contract, the plaintiff must allege: (1) he had a valid and existing contract; (2) the defendant had knowledge of the contract and intended to induce its breach; (3) the contract was in fact breached by the other contracting party; (4) the breach was caused by defendant’s wrongful and unjustified conduct; and (5) plaintiff suffered damage as a result of the breach. (Charles C. Chapman Building Co. v. California Mart (1969) 2 Cal.App.3d 846 , 853 [ 82 Cal.Rptr. 830 ]; Springer v. Singleton (1967) 256 Cal.App.2d 184 , 187-188 [ 63 Cal.Rptr. 770 , 27 A.L.R.3d 1220 ]; Freed v. Manchester Service, Inc. (1958) 165 Cal.App.2d 186 , 189 [ 331 P.2d 689 ].)

The fourth count alleged: plaintiff was an announced candidate for the office of city controller in the election held April 3, 1973; on April 2d defendants, with knowledge of plaintiff’s candidacy, mailed to prospective voters a pamphlet which falsely gave the impression that Charles Navarro, rather than plaintiff, was the candidate for city controller officially endorsed by the Democratic Party; defendants knew the representation was false and made such misrepresentation with the intent to interfere with plaintiff’s opportunity for election to the office of city controller; as a result of the misrepresentation and interference, plaintiff was not elected, and thereby suffered damage in the sum of $4,400. By analogy to the elements of a cause of action for inducing a breach of contract, the foregoing allegations state a cause of action for defendants’ intentional interference with plaintiff’s opportunity to be elected to the office of city controller.^[6] (See Rest., Torts, § 865.)

The fourth count states a cause of action, and it was therefore an abuse of discretion to sustain the demurrer to that count. (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627 , 636 [ 75 Cal.Rptr. 766 , 451 P.2d 406 ].) The first, second, third and fifth counts, however, do not state a cause of action, and none of them can be amended to do so. Therefore, the trial court did not abuse its discretion in denying leave to amend such counts. (See: Routh v. Quinn (1942) 20 Cal.2d 488 , 493-494 [ 127 P.2d 1 , 149 A.L.R. 215 ]; Lehane v. City etc. of San Francisco (1972) 30 Cal.App.3d 1051 , 1056 [ 106 Cal.Rptr. 918 ]; City of Ceres v. City of Modesto (1969) 274 Cal.App.2d 545 , 554 [ 79 Cal.Rptr. 168 ]; Robinson v. Robinson (1961) 198 Cal.App.2d 193 , 197 [ 17 Cal.Rptr. 786 ]; Robertson v. City of Long Beach (1937) 19 Cal.App.2d 676 , 679 [ 66 P.2d 167 ].)

The judgment is reversed as to the fourth count. The trial court is directed to overrule the demurrer to that count, only, and to permit defendants to file an answer thereto. Appellant is to bear the costs of appeal of both parties because of serious violations of the rules governing appeals. (Rule 26(a), Cal. Rules of Court.)

Jefferson, J.,^[7] concurred.

Insofar as the court holds that the demurrer was properly sustained to the first amended complaint, I agree, although there are more substantive reasons for my concurrence than appear in the majority opinion. However, I respectfully dissent from the holding that the demurrer to the fourth cause of action should have been overruled. It is my view that for sound reasons of public

First, the personal relief which is sought would involve the courts in the supervision of election campaigns to a degree unwarranted by existing law. This intrusion, in support of a private monetary remedy, ought not to be undertaken by the courts, at least in the absence of a clear legislative mandate which has not been given. (Compare Alexander v. Todman (3d Cir. 1964) 337 F.2d 962 , 967-969, cert, den., 380 U.S. 915 [ 13 L.Ed.2d 800 , 85 S.Ct. 893 ].)

The reasoning of Jones v. McCollister, supra, 159 Cal.App.2d 708 , is applicable. There, members of a county Democratic central committee sought to enjoin the dissemination of newspaper advertisements favoring a Republican candidate for the Assembly which advertisements were addressed to “Fellow Democrats” and signed by “Marin-Sonoma Democratic Committee for McCollister.” The court affirmed a judgment of dismissal entered after a general demurrer was sustained. It said: “ ... [T]he Legislature has not sought to impose upon the courts the labyrinthine task of supervising the conduct of individual election campaigns, and, in the absence of clear allegations of facts convincingly showing fraudulent misrepresentation, we see no reason to arrogate to the judiciary a task so fraught with the danger of infringement upon the rights of the electorate and its free exercise of the right to choose for itself. Judicial office in this state is officially (Elec. Code, §§ 41, 2541) and traditionally nonpartisan. Yet to establish the precedent here sought would require the courts to assume an active role in the supervision and regulation of party campaigns, to an extent limited only by the ingenuity of candidates and their supporters. The Constitution, in removing from political parties the right to determine the ‘tests and conditions upon which electors, political parties, or organizations of electors’ may participate in state elections, has vested that power in the Legislature, and not in the judiciary. . . .” (159 Cal.App.2d at p. 713.) As in McCollister, our Constitution gives to the Legislature, not the courts, the responsibility at issue in this case, it being to “prohibit improper

Secondthe majority correctly notes that ordinarily where a statute creates an obligation and provides a remedy for breach of the obligation, the statutory remedy so provided is exclusive, if it is adequate. (Orloff v. Los Angeles Turf Club, Inc. (1947) 30 Cal.2d 110 , 112-113 [ 180 P.2d 321 , 171 A.L.R. 913 ].) Elections Code, section 12057, relied upon by plaintiff provides for injunctive relief in a factual setting where the section is applicable. (See fn. 1, supra.)

It is apparent, nevertheless, that in disseminating the pamphlet in question the defendants misled the voters as to the party affiliation of Charles Navarro, the successful candidate. The complaint alleges that Mr. Navarro is a registered Republican. The pamphlet can be fairly read only as implying that he is a Democrat.^[4] Thus, it is a fraud on the public. It is unnecessary here to express an opinion as to the materiality of a misrepresentation of party status in an election constitutionally required to be non-partisan. (Cal. Const., art II, § 5.) Assuming that the misrepresentation is material, it appears quite arguable that, in the discharge of its constitutional responsibilities the Legislature has provided a completely adequate remedy by the enactment of Elections Code, section 29132.^[5] Thus, criminal and injunctive sanctions have been imposed by the Legislature. It is for that body, and not the courts, to create a private remedy.

Third, since this matter is here on demurrer we are required to assume the truth of all of the allegations of the amended complaint, no matter how improbable they may be. (3 Witkin, Cal. Procedure (2d ed.) p. 2413 and cases cited.) Thus, we must assume the truth of the allegations “that

“. . . Apart from other considerations it must be obvious that public policy, demanding, inter alia, the preservation of ‘secrecy in voting’ (Const., art. II, sec. 5) [now art. II, § 6] would not be subserved by permitting the vote of a lawful elector, who had cast his ballot in regular manner and form, to be impeached by a judicial inquiry into the reasons which led him to cast that ballot in favor of one candidate rather than another. ...” (154 Cal. at p. 282; (italics added).)

This is not an election contest where, under proper circumstances, the nature of illegal votes may be inquired into. (E.g., Canales v. City of Alviso (1970) 3 Cal.3d 118 [ 89 Cal.Rptr. 601 , 474 P.2d 417 ].) The public policy referred to in Bush underscores the point first made that the issue here is essentially a political one, not for the consideration of a court. In determining whether a question is of the political category so as not to be justiciable, the dominant considerations are the appropriateness of attributing finality to the action of the political department, and the lack of satisfactory criteria for a judicial determination. (Coleman v. Miller (1939) 307 U.S. 433 , 454-455 [ 83 L.Ed. 1385 , 1396-1397, 59 S.Ct. 972 , 122 A.L.R. 695 ].) Such criteria are present here.

The majority here facilely asserts that the fourth cause of action is viable “[b]y analogy to the elements of a cause of action for inducing a breach of contract.” It rejects the defendants’ argument that First Amendment considerations justified the pamphlet by asserting that justification is an affirmative defense not to be considered on demurrer unless it appears on the face of the complaint^[7] and states that the amended complaint here does not show on its face that the statements were justified. It is patent that the statements were made in the course of an election campaign, by means of a printed pamphlet disseminated to potential voters. It escapes me why such an expression of speech is not initially protected by the First Amendment, unless made with that type of actual malice defined in New York Times Co. v. Sullivan (1964) 376 U.S. 254 , 280 [ 11 L.Ed.2d 686 , 706, 84 S.Ct. 710 , 95 A.L.R.2d 1412 ], i.e., “with knowledge that it was false or with reckless disregard of whether it was false or not.” Noonan v. Rousselot, supra, makes it clear that “the novel civil wrong which plaintiff wishes us to establish” (239 Cal.App.2d at p. 452) is subject to the New York Times Co. v. Sullivan requirements of proving actual malice, and that such malice must be pleaded (239 Cal.App.2d at pp. 452-453).

The first amended complaint here does not measure up to that standard. It does allege that defendants made representations which they knew to be false and which were made with the intent to wrongfully interfere with plaintiff’s opportunity-to win election as city controller of Los Angeles. But the representations referred to are that “the candidates