Kiang v. Strycula

SALSMAN, J.

The trial court sustained a general demurrer to appellant’s first complaint. Leave to amend was refused. This appeal is from the judgment of dismissal. As a general rule, it is an abuse of discretion to sustain without leave to amend a demurrer to an original complaint unless the complaint shows on its face that it is incapable of amendment.

(Skipper

v.

Gilbert J. Martin Constr. Co.,

156 Cal.App.2d 82, 86 [318 P.2d 732];

Filice

v.

Boccardo,

210 Cal.App.2d 843, 847 [26 Cal.Rptr. 789].) We have concluded here, however, that appellant cannot successfully amend so as to state a cause of action; that the trial court’s ruling was correct, and that the judgment must be affirmed.

Appellant’s complaint alleged that on February 1, 1960, he was “employed as a probation officer ... by the City and County of San Francisco ...” and that respondents “did intentionally, wilfully, maliciously and falsely issue and cause to be issued oral and written statements that plaintiff was unsuited and unqualified for duties as a pro

[811]

bation officer.” Appellant further alleged that “all of the acts complained of herein were outside the scope and agency-relationship or employment of the defendants . . . with the City and County of San Francisco; that said acts were the personal and individual acts of the defendants ...” Finally it was alleged that “On February 1, 1960, plaintiff was the holder and owner of certain property rights as to income and retirement benefits ...” commensurate with appellant’s status as a probation officer, and that as a result of respondents’ false acts appellant’s property rights were damaged.

Appellant argues that he has attempted to state a cause of action in tort for inducing a breach of contract, and that if given an opportunity to amend he can state a valid cause of action. He refers to the Restatement of Torts, section 766, which declares that “one who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.” Of course the tort of inducing breach of contract is well recognized in California. (See