Agostini v. Strycula

SALSMAN, J.

The trial court sustained a general demurrer to appellant’s first complaint and refused leave to amend. This appeal is from the judgment thereafter entered. We have concluded that the trial court’s action was correct and that the judgment must he affirmed.

Appellant does not contend that his complaint as written states any cause of action. He does assert, however, that given an opportunity, he could amend to state a cause of action. Generally, sustaining a demurrer to a party’s first complaint and refusing leave to amend is unwarranted if there is some probability that the complaint may be amended to state a cause of action.

(Wennerholm

v.

Stanford University School of Medicine,

20 Cal.2d 713, 719 [128 P.2d 522, 141 A.L.R. 1358];

Loper

v.

Flynn,

72 Cal.App.2d 619, 625 [165 P.2d 256]; 2 Witkin, Cal. Procedure (1954) pp. 1496-1497.) On the record before us, however, it is clear that appellant cannot amend his complaint so as to state any cause of action.

[806]

Six causes of action are attempted to be stated in the complaint. Only the first two are involved in this appeal

Appellant’s first alleged cause of action stated that prior to May 9 and 10, 1962, he was “employed as Group Supervisor with designation of T-35 by the City and County of San Francisco in the Civil Service’’. Appellant further alleged that on the dates mentioned respondents and each of them did “intentionally, wilfully, maliciously and falsely issue and cause to be issued oral and written statements that plaintiff was unsuited for duties involving group supervision of children because of insubordination and for other untrue reasons.’’ It was further alleged that “all of the acts complained of . . . 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 “As a proximate result of said intentional, willful, malicious and false acts of defendants . . . plaintiff has sustained . . . shock and emotional distress.’’