Hardy v. Vial , 48 Cal. 2d 577 ( 1957 )

GIBSON, C. J.

Plaintiff was discharged from his employment as a professor at Long Beach State College as the result of charges made by defendants, and, after reinstatement to his position by the State Personnel Board, he commenced this action for damages for malicious prosecution. He named as defendants seven persons, hereafter referred to as the school defendants, who are officials of the college or of the state Department of Education, and three persons, Vial, Pond, and Egolf, who apparently have no connection with the college or the department.^* General demurrers of Vial and the school defendants were sustained without leave to amend, and plaintiff has appealed from the ensuing judgments. The remaining two defendants are not involved on this appeal.

The allegations of the complaint may be summarized as follows: Defendants wrongfully, maliciously and without probable cause conspired to accuse plaintiff falsely of gross immorality and unprofessional conduct during the period of his employment for the purpose of procuring his dismissal. In pursuance of the conspiracy, defendants Vial, Pond, and Egolf, aided and abetted by the other defendants, made and filed with the college affidavits which charged plaintiff falsely with the commission of acts of a base and depraved nature. By reason of the acts alleged in the affidavits plaintiff was dismissed from his employment at the college effective March 27, 1953. After a hearing the State Personnel Board found that the charges were untrue and that the grounds for the dismissal were not sustained by the evidence. The board revoked the dismissal and ordered defendant Simpson to return plaintiff to his position at the college. No review of the board’s decision was sought, and plaintiff was returned to his position.

It is the general rule that a malicious prosecution action may be founded upon a proceeding before an administrative body. Section 680 of the Restatement of Torts declares : ‘1 One who initiates or procures the initiation of civil proceedings against another before an administrative board which has power to take action adversely affecting the legally protected interests of the other,.is subject to liability for any special harm caused thereby, if (a) the proceedings are initiated (i) without probable cause to believe that the charge or claim on which the proceedings are based is well founded, and (ii) primarily for a purpose other than that of securing appropriate action by the board, and (b) the proceedings have terminated in favor of the person against whom they are brought.” (In accord, Melvin v. Pence, 130 F.2d 423, 425 et seq. [76 App.D.C. 154, 143 A.L.R. 149] ; National Surety Co. v. Page, 58 F.2d 145, 148; Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98 [70 S.E.2d 734, 740-741] ; Rivers v. Dixie Broadcasting Corp., 88 Ga.App. 131 [76 S.E.2d 229, 233] ; Ranier’s Dairies v. Raritan Valley Farms, 19 N.J. 552 [117 A.2d 889, 895-896] ; see Toft v. Ketchum, 18 N.J. 280 [113 A.2d 671, 673-674, 52 A.L.R.2d 1208], cert. den. 350 U.S. 887 [76 S.Ct. 141, 100 L.Ed. 782] ; 143 A.L.R. 157.)

The theory of these authorities is that the same harmful consequences may result from the malicious institution of administrative proceedings as from judicial proceedings maliciously begun, whether criminal or civil in nature. As pointed out in the Melvin case, 130 F.2d 423, 426 [76 App. D.C. 154, 143 A.L.R.. 149], it makes little difference to a person whether his rights are violated by the institution of proceedings before a court or before an administrative body, and his right to redress for malicious conduct should not depend upon the form of the proceeding by which the injury is inflicted. The court further stated: “The administrative process is also a legal process, and its abuse in the same way with the same injury should receive the same penalty. . .. . When private as well as public rights more and more are coming to be determined by administrative proceedings, it would be anomalous to have one rule for them and another for the courts in respect to redress for abuse of their powers and processes.” (130 F.2d at pp. 426, 427.)

We adopt the rule set forth in section 680 of the Restatement of Torts and hold that an action for malicious prosecution may be founded upon the institution of a proceeding before an administrative agency. This rule is in no way dependent upon the type of judicial review which is allowed after decision of the administrative agency involved, and we do not agree with defendants’ contention that plaintiff cannot maintain this action because the State Personnel Board assertedly cannot exercise adjudicatory powers and has no authority to make a final determination of a question of fact. In considering the availability of an action for malicious prosecution, no distinction should be made between proceedings commenced before agencies having adjudicatory powers and those commenced before agencies whose findings of fact are subject to trial de novo in a judicial proceeding. Such a distinction is unsound in principle and if adopted would result in unnecessary complexity and confusion. Moreover, it is settled that the State Personnel Board has adjudicatory powers, and its findings of fact will not be disturbed if supported by substantial evidence. (Shepherd v. State Personnel Board, ante, pp. 41, 46-48 [307 P.2d 4].)

The cases of Vargas v. Giacosa, 121 Cal.App.2d 521 [263 P.2d 840], Lorber v. Storrow, 22 Cal.App.2d 25 [70 P.2d 513], Hayashida v. Kakimoto, 132 Cal.App. 743 [23 P.2d 311], and Cosulich v. Stempel, 81 Cal.App. 278 [253 P. 344], which, without mentioning the authorities listed above or their reasoning, reached a contrary conclusion, are disapproved insofar as they are in conflict with the views expressed in this opinion.

The seven school defendants contend that the judgment should be affirmed because, they assert, they are immune from civil liability. In White v. Towers, 37 Cal.2d 727 [235 P.2d 209, 28 A.L.R.2d 636], we held that an investigator for the State Fish and Game Commission, who had the duty to investigate crime and to institute criminal proceedings, was immune from civil liability for the malicious prosecution of a criminal action against the plaintiff. A similar conclusion was reached in Coverstone v. Davies, 38 Cal.2d 315 [239 P.2d 876], which involved deputy sheriffs and city policemen. The rule of absolute immunity, notwithstanding malice or other sinister motive, is not restricted to public officers who institute or take part in criminal actions. First recognized for the protection of judges (Bradley v. Fisher, 13 Wall. (U.S.) 335 [20 L.Ed. 646]), it has been extended by the federal decisions to all executive public officers when performing within the scope of their power acts which require the exercise of discretion or judgment. (Spalding v. Vilas, 161 U.S. 483 [16 S.Ct. 631, 40 L.Ed. 780]; Standard Nut Margarine Co. v. Mellon, 72 F.2d 557; United States, to Use of Parravicino v. Brunswick, 69 F.2d 383; Jones v. Kennedy, 121 F.2d 40 [73 App.D.C. 292] ; Farr v. Valentine, 38 App.D.C. 413; De Arnaud v. Ainsworth, 24 App.D.C. 167 [5 L.R.A.N.S. 163] ; see Papagianakis v. The Samos, 186 F.2d 257, 260-262.) In this state Downer v. Lent, 6 Cal. 94 [95 Am.Dec. 489], and Oppenheimer v. Arnold, 99 Cal.App.2d 872, 874 [222 P.2d 940], recognize the same wide immunity. (Cf. also Wilson v. Sharp, 42 Cal.2d 675, 679 [268 P.2d 1062].)

The policy underlying the doctrine of absolute immunity is well stated by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581, as follows: “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. ’ ’

The seven school defendants occupied positions which would ordinarily embrace duties relating to the investigation of charges which could lead to the discipline or dismissal of persons such as plaintiff, and it is not claimed that the school defendants were without authority to investigate and prosecute charges made against employees. Plaintiff contends, however, that the school defendants are not entitled to the protection of the immunity rule because they assertedly acted beyond the scope of their employment when they conspired with the nonschool defendants and aided them in making and filing affidavits containing false charges. It should be noted in this connection that “What is meant by saying that the officer must be acting within his power [to be entitled to immunity] cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.” (Gregoire v. Biddle, 177 F. 2d at p. 581.) The alleged purpose of the conspiracy, and, accordingly, the purpose of the school defendants in aiding the nonsehool defendants in making the affidavits, was to accomplish the dismissal of plaintiff from his employment. This purpose, of course, was clearly within the scope of the official duties of the school defendants and within the protection of the immunity rule. The policy on which the rule is based would be defeated if it were held that whenever an officer uses his office for a personal motive not connected with the public good he acts outside his power.

The fact that the school defendants sought to attain their objective by acting in concert with other persons cannot properly be treated as destroying the immunity which they would have if each of them had acted individually and independently of any other person to secure the same result. The underlying theory of absolute immunity is equally applicable whether the employee acts by himself or with others who are not immune. (Cf. White v. Brinkman, 23 Cal.App.2d 307, 310 et seq. [73 P.2d 254] [public officers treated as acting in their official capacities even though they acted in concert with other persons]; Yaselli v. Goff, 12 F.2d 396, 406-407 [56 A.L.R. 1239]; Hoppe v. Klapperich, 224 Minn. 224 [28 N.W. 2d 780, 790, 173 A.L.R. 819]; Linder v. Foster, 209 Minn. 43 [295 N.W. 299, 301-302].) Since the seven school defendants have immunity, the judgment in their favor must be affirmed.

The complaint does not allege facts which would entitle Vial to immunity, and we are of the view that a cause of action is stated against him. While it is not specifically alleged that Vial knew or reasonably should have known that the affidavits were false, it is alleged that he acted without probable cause in conspiring to make false charges against plaintiff and that the making of such charges was in pursuance of the conspiracy. This meets the usual rule that a general averment of want of probable cause is sufficient and that it is unnecessary to add a statement of facts which tend to prove the averment, such as knowledge of falsity. (See Pulvermacher v. Los Angeles Coordinating Committee, 61 Cal.App.2d 704, 707 [143 P.2d 974] ; Eustace v. Dechter, 28 Cal.App.2d 706, 710 [83 P.2d 523] ; 2 Witkin, California Procedure (1954) 1357; 54 C.J.S. 1043; 14 A.L.R.2d 264, 282.)

The judgment in favor of Vial is reversed. The judgment in favor of the other respondents is affirmed.

Shenk, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.

* Defendant Peterson is president of the college, defendants Bhodes and Bryant are deans, and defendant Johnson is head of the division of the college in which plaintiff is employed. Defendant Boy E. Simpson is Director of Education of the State of California, defendant Vasehe is assistant director of education of the Department of Education in charge of state colleges, and defendant Dresser is a special agent and field representative of the department.