Perati v. Atkinson

DRAPER, P. J.

Plaintiff appeals from judgment of dismissal entered upon sustaining of demurrer to his first amended complaint. Despite its designation, this is the third pleading filed by plaintiff.

Plaintiff, a civil service toll collector, has appeared without counsel throughout. His pleading is diffuse. His basic grievance concerns a 1958 examination conducted by the State Personnel Board for promotion to the rank of toll sergeant. Plaintiff was first in the written test, but failed in the oral examination, and thus was disqualified. The complaint discloses that he secured a peremptory writ of mandate requiring the board to make and file findings. This was done, and plaintiff then secured another peremptory writ requiring that the board conduct a hearing as to whether specific code sections had been complied with. The ultimate result of that proceeding is not stated.

The present complaint seeks damages against personnel board members and others. Only Navarro demurred. The complaint alleges that: on January 8, 1960, he directed plaintiff to “watch for a possible 502,” giving the license number of the suspected automobile; later he called over the loudspeaker to plaintiff “that’s the car, hold him in the lane, take or get his car keys”; in fact, the driver was a woman, who gave no indication of intoxication. By clear inference, it is conceded that plaintiff did not attempt to stop the car. It is alleged that: Navarro then entered the fact of plaintiff’s refusal in the official log; Navarro’s acts were without authority, and his statements were knowingly untrue, At most, plaintiff seeks to assert Navarro’s liability for injury to “business relations” by depriving plaintiff “of his right to the position of toll sergeant,” and a liability for intentionally inflicting “emotional distress” upon plaintiff.

Before recovery can be had for interference with a prospective business relationship or advantage, it must appear that the advantage would otherwise have been realized

(Wilson

v.

Loew’s, Inc.,

142 Cal.App.2d 183 [298 P.2d 152]).

[474]