Cross v. Tustin

VAN DYKE, P. J.

This appeal was taken from a judgment of dismissal after the sustaining of demurrers without leave to amend.

The following is a condensation of the first complaint filed herein: Plaintiff is a personnel examiner and, by training, also, a lawyer, though not a member of the State Bar. John L. Tustin is personnel director and secretary of the Civil Service Commission of Santa Clara County, and, with respect to the acts complained of, was an agent and servant of said commission, acting within the scope of his employment. John F. Fisher and James R. Bell are executive officer and assistant executive officer, respectively, of the State Personnel Board and the acts by them complained of were done while they were acting as agents and servants of the board within the scope of their employment. Horace Cureton, George Prindiville, Justin W. Byers, J. B. Robinson and James E. Dunn are members of the Civil Service Commission of Santa Clara County. Ford A. Chatters, Emery E. Olson, Wilmer W. Morse, Robert D. Gray and Benjamin E. Mallary are members of the State Personnel Board. Plaintiff applied for the position of Associate Personnel Examiner in the state civil service, passed a written examination therefor, and thereafter appeared and took the oral qualifications appraisal test. Several years thereafter plaintiff applied for the position of Junior Counsel in the State Civil Service, passed the written examination therefor, but failed the oral appraisal test. Intermediate her application and the first examination, Fisher wrote to Tustin and inquired concerning the reasons for

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plaintiff’s separation from her position with Santa Clara County. Tustin replied that she had been employed as a Senior Personnel Technician with a probational status; that she had been appointed December 6, 1948, and had been released March 2, 1949; that their rules prohibited giving reasons for the release of a probational employee and hence he was unable to give the information requested. He said, however, that the release had been fully justified. This letter contained false and defamatory statements about plaintiff made maliciously with the intent secretly and fraudulently to prejudice and defeat her opportunities for appointment for any position in the state civil service in that it was, and was understood to be, a charge that plaintiff had been guilty of misconduct and had been discharged for that reason. Tustin, Fisher and Bell were charged with publishing this letter. The letter, said plaintiff, exposed her to hatred, contempt, ridicule and obloquy, caused her to be shunned and avoided, injured her in her occupation and further violated section 19680 of the Government Code. When Fisher and Bell published the letter, they accompanied it by memorandum of their own making to the effect that although plaintiff was being admitted to the written examination test she could and should be disqualified on oral examination by the qualifications appraisal board. They so stamped and tagged the application form of plaintiff as to bring the letter to the attention of oral examiners. As a consequence of the letter and memorandum, plaintiff, on oral appraisal of her qualifications for the position of Associate Personnel Examiner, was rated only five points above passing, namely, 75 per cent. Had it not been for said publication, plaintiff would have been appointed to the position she sought, but due thereto plaintiff has never been able to obtain the employment she asks for. As a further result of the publications, plaintiff, on oral appraisal of her qualifications for the position of Junior Counsel, was rated five points below passing, that is, 65 per cent, and hence her name could not and did not appear on the eligible list. By reason of the foregoing plaintiff had been specially damaged in the sum of $32,000 and generally damaged in the sum of $43,000. She sought exemplary damages of $25,000.