[369]Opinion
DUNN, Acting P. J. On April 1, 1974, plaintiff commenced an action in the superior court against the Los Angeles Democratic League, Carmen H. Warschaw and various Does to recover damages based upon alleged violation of Elections Code section 12057, upon constructive fraud, negligent misrepresentation, “interference with prospective relationship” and upon a common count for debt on an open book account. Plaintiff also sought an injunction enjoining defendants from violating Elections Code section 12057. Before any defendant answered or demurred, plaintiff filed a first amended complaint (Code Civ. Proc., § 472). The named defendants demurred generally to the first amended complaint, and to each count thereof. The trial court sustained the demurrer without leave to amend, and dismissed the action. (Code Civ. Proc., § 581, subd. 3.) Plaintiff appeals from the order of dismissal (judgment, Code Civ. Proc., § 58Id).
The verified first amended complaint was framed in five counts. The first count alleged: plaintiff was a duly registered candidate for the office of city controller in the Los Angeles municipal election held on April 3, 1973; defendant Los Angeles Democratic League is a California corporation transacting business in the County of Los Angeles; defendant Carmen Warschaw is the chairman of the Los Angeles Democratic League; at all times mentioned, plaintiff was a member of the Los Angeles County Democratic Central Committee, which is an official body of the Democratic Party; plaintiff was the endorsed candidate of the committee for the office of city controller in the municipal election of April 3, 1973; on April 2, 1973, defendants mailed to an unknown . number of recipients in the Los Angeles area a pamphlet (attached to the amended complaint as an exhibit) containing “Voter Information” for the April 3d election; the pamphlet showed that it had been sent by defendants, urged the recipient to “Vote Democratic,” and listed one candidate for each of the offices to be filled in the election; the candidate listed for city controller was Charles Navarro; defendants mailed the pamphlet immediately before the election so that the “effected [¿7c] candidates” would not have an opportunity to “expose” the mailing prior to the election; the purpose of the mailing was to influence “perspective” (sic) voters to vote for the candidates whom defendants endorsed in the pamphlet; because of the appearance and language of the pamphlet, it appeared to be an endorsement by the Democratic Party; the pamphlet and the representations contained therein were contrary to Elections Code section 12057, which “prohibits misrepresen[370]tation as to support of a candidate”; it is necessary that plaintiff be granted a temporary restraining order and a preliminary injunction enjoining defendants from the further mailing of pamphlets of a similar nature, or else plaintiff will suffer irreparable injury in that further mailings might render ineffectual any judgment obtained by him; defendants did the acts alleged with the intent to harm plaintiff, and said acts were done maliciously and oppressively; therefore, plaintiff is entitled to punitive damages of $1,000,000.
Each of the succeeding counts incorporated all of the allegations of the first count (paragraphs 1 through 11) except those which specifically mentioned facts pertinent only to Elections Code section 12057, including those which set forth the basis for injunctive relief. In addition, counts 2 through 5 further alleged as set forth hereinafter.
Count 2 (constructive fraud): on April 2, 1973, each of the defendants was in a position of trust to the public and to the candidates in the forthcoming municipal election, to refrain from disseminating false or misleading information to prospective voters regarding the election; the pamphlet mailed by defendants to “perspective voters” (sic) on April 2d conveyed a false and misleading impression regarding which candidates were endorsed by an official branch of the Democratic Party; because of the mailing, candidates who otherwise might not have been successful in the election were successful; each of the defendants did the acts alleged “with the intent of gaining an advantage over those individuals including the plaintiff who may have been endorsed by an official branch of the Democratic Party but who were not represented” in the pamphlet as being so endorsed; in making such misrepresentations, defendants acted maliciously and oppressively, entitling plaintiff to punitive damages of $1,000,000.
Count 3 (negligent misrepresentation): defendants, by mailing the pamphlet, represented to the general public “that certain named candidates had received the endorsement of the Los Angeles Democratic League. The manner in which the pamphlet is printed” conveyed the impression that such defendant was an official branch of the Democratic Party; such representation was false; the true facts were that “the Los Angeles Democratic League was nothing more than an organization composed of individuals or groups who had a special interest in the election of’ the candidates listed in the pamphlet; by conveying the impression that it was an official branch of the Democratic Party, defendant league hoped that its endorsement of candidates would [371]influence the voters of Los Angeles; when defendants made such representations, they had no reasonable ground for believing’ them to be true, in that defendants had no information concerning the oflicial endorsements of the Democratic Party for the municipal election of April 3, 1973; defendants were aware that without such information they could not accurately state which candidates were endorsed by the Democratic Party or its oflicial branches; on April 2, 1973, defendants concealed from plaintiff and from the general public defendants’ lack of such information and their consequent inability accurately to make the statements contained in the pamphlet; in “relience” (sic) on these statements, “a great number of voters in” Los Angeles were influenced to and did vote in accordance with defendants’ endorsement of candidates in the pamphlet; had the public known the true facts, the majority of them would not have so voted.
Count 4 (interference with “perspective” (sic) employment): defendants, knowing that plaintiff was a candidate for the office of city controller, mailed the pamphlet which gave the impression that the candidates listed therein were endorsed by the Democratic Party or by one of its official branches; such representation was false; the true facts were that Charles Navarro, the candidate for city controller endorsed in the pamphlet, was not officially endorsed by the Democratic Party, the Los Angeles County Democratic Central Committee or any other official branch of the Democratic Party; at the time of the election, Mr. Navarro was a registered Republican, as shown by a copy of his voter registration (sworn to by him on Apr. 3, 1969) attached to the amended complaint; when said representations were made by them, defendants knew they were false and made them with the intent wrongfully to interfere with plaintiff’s opportunity to be elected to the office of city controller; it was the mailing of the pamphlet which caused the voters to elect Mr. Navarro to such office; as a result of defendants’ misrepresentations and “wrongful interference with plaintiffs perspective [j/c] employment, plaintiff was not elected to the office of City Controller ... to plaintiffs damage in the sum of $4,400.00”; defendants acted maliciously and in wanton disregard of plaintiff’s rights; therefore, plaintiff was entitled to punitive damages of $1,000,000.
Count 5 (common count): within four years last past, at Los Angeles, defendants became indebted to plaintiff on an open book account in the sum of $4,400, representing money expended by plaintiff which defendants are obligated to repay to him; demand having been made therefor, the entire sum is due, owing and unpaid.
[372]The questions presented on this appeal1 are whether any of the foregoing counts states a cause of action and, if not, whether there is a reasonable possibility that any can be amended to do so. (See: MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 542 [343 P.2d 36].)
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 [373699]].) The amended complaint shows on its face that the acts sought to be enjoined were committed by defendants in connection with a municipal election which took place a year before this action was commenced. Plaintiff did not allege that defendants threatened to repeat such acts. Accordingly, there was no basis upon which to grant injunctive relief.
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 [374636], 644 [331 P.2d 89]; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 481, p. 2740.) The elements of a cause of action for actual fraud are: (1) a false representation of a material fact, (2) made recklessly or without reasonable ground for believing its truth, (3) with intent to induce reliance thereon, (4) on which the plaintiff justifiably relies, (5) to his injury. (See: Gonsalves v. Hodgson (1951) 38 Cal.2d 91, 100-101 [237 P.2d 656]; Sixta v. Ochsner (1960) 187 Cal.App.2d 485, 489 [9 Cal.Rptr. 617]; Hill v. Wrather (1958) 158 Cal.App.2d 818, 823 [323 P.2d 567]; Cohen v. Citizens Nat. Trust etc. Bank (1956) 143 Cal.App.2d 480, 483 [300 P.2d 14]; Cox v. Westling (1950) 96 Cal.App.2d 225, 229 [215 P.2d 52].)
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 [375]justifiably have relied on the alleged misrepresentation, could such counts be amended to state a cause of action.
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.)
[376]Defendants contend no such cause of action is stated because the alleged misrepresentation made by them was justified as an exercise of free speech, guaranteed by the First Amendment to the federal Constitution. “Justification is an affirmative defense and may not be considered as supporting the trial court’s action in sustaining a demurrer unless it appears on the face of the complaint.” (Herron v. State Farm Mutual Ins. Co. (1961) 56 Cal.2d 202, 207 [14 Cal.Rptr. 294, 363 P.2d 310].) The allegations of the fourth count tend to show that, because of the misrepresentation, the election did not express the will of an undeceived, well-informed public. (Canon v. Justice Court (1964) 61 Cal.2d 446, 451-453 [39 Cal.Rptr. 228, 393 P.2d 428].) The amended complaint does not show on its face that defendants’ statement was justified on the ground it was protected by the First Amendment. (See: New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279 [11 L.Ed.2d 686, 706, 84 S.Ct. 710, 95 A.L.R.2d 1412].)
The fifth count seeks recovery of $4,400 under a common count, alleging that defendants became indebted to plaintiff for this sum on an open book account “for money expended and for which the defendants and each of them is responsible to the plaintiff for repaying.” A plaintiff who has suffered damage from a defendant’s tortious conduct may “waive the tort and sue in assumpsit”; that is, he may elect the quasi-contract remedy of restitution in lieu of the tort remedy of damages. (3 Witkin, Cal. Procedure (2d ed.) Pleading, § 430, p. 2087.) The common count is an accepted method of pleading in an action in quasi-contract. However, if there is no basis for restitution, the common count may not be employed. (Id., pp. 2087, 2088.)
In Allen v. Powell (1967) 248 Cal.App.2d 502 [56 Cal.Rptr. 715, 29 A.L.R.3d 1218], the plaintiffs pleaded a common count, thereby waiving the tort of interference with contract and suing in assumpsit. The court held that a common count did not he in this situation, stating (p. 510): “However, the fatal defect is the lack of an allegation of consideration furnished. In fact, such an allegation is impossible. The ‘consideration’ is a fiction when the tort is waived, for there is no intent to give anything as an agreed exchange. But, in order to employ the fiction, there must be something moving to the defendant, to support the implied promise to pay therefor. In the instant case, there is nothing so moving in order for plaintiffs to waive the tort. No more so, that is, than there would be with an assault and battery or negligence case.”
[377]Here, the common count represents an attempt by plaintiff to waive the tort of interference with a prospective advantage alleged in the fourth count. The common count is defective because it does not allege any consideration moving from plaintiff to defendants upon which to base an implied promise of repayment on their part. As in the Allen case, such an allegation is impossible because of the nature of the underlying tort. Therefore, plaintiff must rely on the tort, which has been sufficiently alleged in the fourth count.
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.,* concurred.
In violation of California Rules of Court, rules 13 and 15(a), plaintiff has included in his reply brief matters which are not in the record on appeal. On this ground, defendants moved to strike the brief. (Cal. Rules of Court, rule 18.) We have elected, instead, to disregard those matters in the reply brief which are outside the record. (Id., rule 18(3).)
Elections Code section 12057 reads: “It is unlawful for any candidate or committee in his behalf to represent in connection with an election campaign, either orally or in campaign material, that the candidate has the support of a committee or organization which includes as part of its name the name or any variation upon the name of a qualified political party with which the candidate is not affiliated, together with the words ‘county committee,’ ‘central committee,’ ‘county,’ or any other term that might tend to mislead the voters into believing that the candidate has the support of that party’s county central committee or state central committee, when that is not the case. [f] This section shall not be construed to prevent a candidate or committee from representing that the candidate has the support of a committee or group of voters affiliated with another political party, which committee or group is identified by the name of that party, where the name of the committee or group also includes the name of the candidate. [H] Any member of a county central committee or state central committee may commence an action in the superior court to enjoin misrepresentation by a candidate or committee in his behalf, in the manner prohibited by this section, to the effect that the candidate has the support of the state or county central committee involved.” (Italics added.)
In the first count, plaintiff sought only punitive damages for defendants’ alleged violation of section 12057; he did not allege that he suffered any actual damages because of such violation. Punitive damages are merely incident to a cause of action, and can never constitute the basis thereof. (Civ. Code, § 3294; Contractor’s etc. Assn. v. Cal. Comp. Ins. Co. (1957) 48 Cal.2d 71, 77 [307 P.2d 626]; Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801-802 [197 P.2d 713]; Mother Cobb’s Chicken T, Inc. v. Fox (1937) 10 Cal.2d 203, 206 [73 P.2d 1185]; Clark v. McClurg (1932) 215 Cal. 279, 282 [4 P.2d 149, 9 P.2d 505, 81 A.L.R. 908]; Sasser v. Miles & Sons Trucking Service (1953) 119 Cal.App.2d 239, 241, 243-244 [259 P.2d 488]; Birch Ranch & Oil Co. v. Campbell (1941) 43 Cal.App.2d 624, 628 [111 P.2d 445].)
Civil Code section 1572 defines actual fraud as: “2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not [374]true, though he believes it to be true.”
Civil Code section 1710 defines deceit as: “2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true.”
In the second count, plaintiff alleged only punitive damages, which cannot constitute the basis of a cause of action. (See fn. 3.)
In addition to alleging actual damages of $4,400, the fourth count alleged that plaintiff was entitled to punitive damages of $1,000,000. The fourth count thus states a cause of action within the original jurisdiction of the superior court (Cal. Const., art. VI, § 10; Code Civ. Proc., § 89) because in determining the existence of such jurisdiction, a plea of punitive damages must be added to a plea of actual damages. (Muller v. Reagh (1957) 150 Cal.App.2d 99, 102 [309 P.2d 826]; Schwartz v. Cal. Claim Service (1942) 52 Cal.App.2d 47, 56-57 [125 P.2d 883].)
Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council,