Los Angeles Fire & Police Protective League v. Rodgers

In its first amended complaint, the Los Angeles Fire and Police Protective League, an unincorporated association, sought damages for alleged defamation by defendants of police members of the association. Three individuals, Duffy, Wagner, and Whisman, as plaintiffs, also sought damages for alleged defamation. Defendants’ demurrers to said complaint were sustained without leave to amend as to plaintiff association on the ground that no cause of action was stated as to that plaintiff. The demurrer was overruled as to the individual plaintiffs.

The allegations of the first amended complaint were in substance as follows:

Plaintiffs Duffy, Wagner, and Whisman are police officers employed by the City of Los Angeles. Each of said plaintiffs enjoys a good name and reputation as a police officer; and each of said plaintiffs is a member in good standing of the Los Angeles Fire and Police Protective League. The league is an unincorporated association consisting of all members of the Los Angeles Fire and Police Departments, and it was formed for the purpose of securing mutual benefits and protection for its members. The league prosecutes this action on behalf of approximately 5,000 members of the Los Angeles Police Department, it being impractical to bring them all before this court as individual plaintiffs. The league is a specifically identifiable entity, composed of specifically identifiable members; it maintains separate offices and its own administrative staff; and it represents each and every police officer, and each and every fireman, employed by the City of Los Angeles. By reason of the great number of such police officers, each and all of whom constitute a readily identifiable class, such members have formed and joined the league for the purposes, among others, of prosecuting lawsuits on behalf of each and all of said class members; and the league is prosecuting this action on behalf of itself and its members to avoid multiplicity of action. The league enjoys a good reputation in the community; and each and every member of the league enjoys a reputation in the community for fair and honest dealing with the public and for exercise of reasonable restraint in the discharge of his duties as a law enforcement officer. On December 22, 1967, on a radio broadcast over station KLAC to the general Los Angeles area, defendants and each of them stated to the general public that plaintiffs Duffy, Wagner, Whisman, and the members of the league, and each of them, brutally manhandled defendant Rodgers, inflicted karate chops and karate holds on Rodgers, struck Rodgers, committed unprovoked assault and battery on Rodgers, and were guilty of police brutality. (Here, there are allegations that defendants, and each of them, made substantially similar statements to the general public in the Los Angeles

area on December 7, 1967, on a telecast over station KTTV; on January 15, 1968, on a telecast over the ABC network; on February 22, 1968, on a radio broadcast over station KLAC; on March 27, 1968, on a telecast over station KTTV; on April 1, 1968, on a telecast over the ABC network; and on April 2, 1968, at a press conference.) Said statements on their face charge that plaintiffs Duffy, Wagner, Whisman and members of plaintiff league were guilty of crimes of wilful inhumanity or oppression toward a prisoner under their care or custody and were guilty of the crime of assault and battery, a felony; and said statements were so understood by members of the general public who heard or read said statements. Said statements were knowingly false and were made recklessly and maliciously. On March 27, 1968, defendants, and each of them, stated on a television broadcast over station KTTV, that an investigation which had been made by the district attorney of Duffy, Wagner, and Whisman was a “cover-up,” was false, and was a “whitewash” of Duffy, Wagner, and Whisman and members of the league; and that the investigation was the fruit of a conspiracy to exculpate and exonerate plaintiffs from the consequences of said wrongful conduct. (Here it is alleged that defendants, and each of them, made similar statements regarding the investigation at a press conference on April 2, 1968.) Said statements charged that plaintiffs Duffy, Wagner, Whisman and members of plaintiff league were guilty of a crime, to wit: a conspiracy to pervert and obstruct justice; and the statements were so understood by members of the general public who heard or read such statements. Said statements were knowingly false; were made maliciously; and exposed plaintiffs Duffy, Wagner, and Whisman and members of plaintiff league, to hatred, scorn, contempt, ridicule and obloquy, and injured each of them in his occupation. As a proximate result of said libelous and slanderous statements, plaintiffs Duffy, Wagner, and Whisman each suffered general damages in the amount of $150,000; and because said : iatements were made maliciously, each of those plaintiffs is entitled to exemplary damages in the amount of $1,000,000. Each of said defamatory statements was intended, and was understood by members of the general public, to impute to the Los Angeles Police Department as a whole and to each individual member thereof and to the members of plaintiff league a lack of morals and ethics and the general character traits of senseless brutality and inhumanity and a wilful failure on their part to abide by their oaths of office, thereby tending to directly injure each and every member of the Los Angeles Police Department and each and every member of plaintiff league with respect to their offices and professions. As a proximate result of said libelous and slanderous statements, the members of the Los Angeles Police Department and each and every member of plaintiff league have sustained general damages in the total sum of $5,000,000. Because said defamatory statements were made maliciously, the members of plaintiff -league are entitled to exemplary damages of $5,000,000.

In ruling on the demurrers, the court made an order in part as follows: “Each Demurrer sustained without leave to amend on grounds stated in paragraph 2 thereof, plaintiffs’ counsel having represented in open Court that plaintiff Los Angeles Fire and Protective League can add nothing more to the First Amended Complaint by way of further amendment. Demurrers otherwise overruled.” (Some grounds of demurrer were directed to the alleged causes of action of plaintiffs Duffy, Wagner, and Whisman.)

Appellant (league) contends that it has standing to maintain a class action (Code Civ. Proc., § 382) on behalf of its police members for damages for alleged defamation of such members.

Respondents contend, among other things, that the league does not have standing to maintain such class action because the league itself is not a member of the class (police officers) allegedly defamed, and because firemen members of the league are not similarly situated, and do not have community of interest, with police members of the léague. (It was not alleged that firemen were defamed.) Respondents further contend that even if it were assumed that plaintiff has standing to maintain a class action on behalf of its members, it cannot, as a matter of law, maintain an action for damages for slander on behalf of such a large group (5,000) of persons.

It is to be noted that respondents do not question plaintiff league’s capacity to sue or said plaintiff’s right to come to court—respondents concede that, under the 1967 amendment to section 388 of the Code of Civil Procedure, an unincorporated association may sue in its name. “However, the question of standing to sue is different from that of capacity. Incapacity is merely a legal disability, such as infancy or insanity, which deprives a party of the right to come into court. The right to relief, on the other hand, goes to the existence of a cause of action. It is not a plea in abatement, as is lack of capacity to sue. Where the complaint states a cause of action in someone, but not in the plaintiff, a general demurrer for failure to state a cause of action will be sustained.” (Parker v. Bowron, 40 Cal.2d 344 , 351 [ 254 P.2d 6 ].) In the present case, as previously stated, the court sustained defendants’ general demurrers on the ground that no cause of action was stated as to plaintiff association.

With reference to actions under section 382 of the Code of Civil Procedure, it has been said: “The statutory provision [citation] is based upon the doctrine of virtual representation and is an exception to the general

It further appears, as respondents contend, that under the allegations of the first amended complaint herein, plaintiff league cannot, as a matter of law, maintain an action for damages for alleged defamation of such a large group (5,000) of persons. (See Noral v. Hearst Publications, Inc., 40 Cal.App.2d 348 [ 104 P.2d 860 ]; 2 Witkin, Summary of Cal. Law (1960) Torts, § 105, p. 1276; Prosser, Law of Torts (3d ed.), pp. 767-768; 70 A.L.R.2d 1385 ; 41 Cal.L. Rev. 144 -145; 1 U.C.L.A. L.Rev. 176; 29 Cal.L. Rev. 83 .)

No contention is made herein that the court abused its discretion in sus

The judgment (order) of dismissal is affirmed.

Lillie, J., and Gustafson, J., concurred.