Impeachment of Donald Trump for high crimes and misdemeanors



report released Tuesday accusing President-elect Donald Trump's team of communicating with Russia as it influenced the election caused some critics to question Trump's future in the White House. Though Trump has routinely denied such allegations, taking to Twitter to say the latest report was “completely false,” if Congress proves he was involved, it could eventually result in impeachment.

The grounds for impeaching a president can be found in Article II of the United States Constitution, which says an official must be convicted by a majority vote in Congress over “treason, bribery, or other high crimes and misdemeanors.” Treason may be the most likely Russia-related charge to take down Trump.



Trump has become the target of impeachment efforts because working with Russian officials would make him vulnerable to compromising information that could be used to blackmail or influence him politically during his presidency.

A former British intelligence officer released a report, which alleged the Russian government had been “cultivating, supporting and assisting” Trump for several years. A two-page synopsis of the report was given to both President Barack Obama and Trump, CNN reported Tuesday.



“That is a strong indication that these allegations should be taken seriously,” former NSA legal counsel Susan Hennessey told Forbes. “If there was any evidence that the Trump campaign actively colluded with Russia and committed crimes, that would be the most shocking political scandal in American history ... If sufficient evidence emerges that the FBI has substantiated the allegations or is preparing criminal indictments, then even hardline Republicans in Congress will likely call for Governor Pence to take the oath of office.”

Impeachment does not mean Trump would immediately be stripped of his presidency. If the House of Representatives were to agree he should be impeached, Trump would also have to go through a Senate trial. Then, two-thirds of the Senate would have to agree in order for him to be removed from office.’



Impeachment has been used a few times on presidents. Andrew Johnson was impeached in 1868 over a political conflict stemming from the Civil War. More recently, former President Bill Clinton was impeached on Dec. 19, 1998 over perjury and obstruction of justice after he was found to have lied under oath about his affair with former White House intern Monica Lewinsky. However, both Clinton and Johnson were impeached for crimes committed while they were president.

Christopher Lewis Peterson, a law professor at the University of Utah, wrote a paper last year arguing Trump could be impeached immediately upon taking office — though not for treason. The report said the “high crimes and misdemeanors” clause for impeaching a sitting president in the Constitution applied to all "ordinary" citizens acting against U.S. law. Peterson claimed Trump could be on the hook for fraudulent activities related to false advertising for his real estate program Trump University.



Treason is equally unlikely some say to bring an impeachment. There have been fewer than 20 treason convictions in American history, and none since the 1950s. Most of those were tied to revolts or wartime espionage; none applied to a President. They contend Trump would, hypothetically, only face impeachment for bribery or for another unspecified crime, either before or during his time in the Oval Office — although some constitutional experts say there’s no precedent for impeaching a President for actions taken before they took office. I am inclined to think if the constant contact of Trump and his enablers occurred during the election process and Russia’s efforts to sway the election to him we have uncharted water and treason should certainly be included. Trump's most likely path to an impeachable offense, experts say, could come from this obscure anti-bribery clause in the Constitution.

Then there is the emoluments clause which says the President cannot “accept any present, emolument, office, or title, of any kind whatsoever, from any king, prince, or foreign state.” In other words: No gifts from foreign leaders or diplomats. With his tangle of business interests worldwide — and his refusal to officially cut ties with them — Trump may have been pushing the envelope on this ever since he won the election.





“The whole question now is whether he is going to be violating the Constitution on day one with the emoluments clause,” said John Dean, a former White House Counsel to President Richard Nixon. That would indicate another strong avenue for impeachment as many of his holdings continue to obtain considerable infusion of millions of dollars since his presidency began and he has not even revealed his taxes as every president has done in the past. His children are running much of his powerful assets around the world that continue to provide enormous wealth as no president before him accumulated and his presidency just began. Trump claimed through the campaign he would put his assets into a blind trust if he won. Instead, he revealed he handed the Trump Organization to his sons and will simply not involve himself in the business.

His handoff may be legal for the presidency — but it does little to keep the commander-in-chief away from conflicts of interest, especially since he has been inviting his children into meetings with foreign diplomats.

"With emoluments, presidents usually go out of their way not to have these problems," an authority named Libowitz said. "This is not something we've seen before. It brings incredibly serious issues."





The potential for impeachable conflicts is nearly as vast as Trump's empire. For instance, there are the meetings with foreign diplomats, sometimes from countries where Trump has deals pending, since the election. There are Trump's denials that he has ever done deals with Russia, despite one of his sons once claiming the family saw "money pouring in" from there. There is Trump's new Washington, D.C., hotel, which has been catering to foreign officials visiting the nation's capital.

Trump’s lawyer said earlier this month that’s not a violation of the emoluments clause because that applies to gifts, not business transactions like renting a hotel room. But ethics experts are unconvinced by that argument. For an impeachment, though, Trump would have to be caught explicitly exchanging a political deal for a business deal to be guilty of bribery.




“There would have to be facts showing a quid pro quo,” said Michael Gerhardt, a University of North Carolina at Chapel Hill School of Law professor who testified in a hearing for President Bill Clinton's impeachment. "It would be like Watergate — 'Follow the money.' We'd have to be able to follow the money to Trump to know what extent he might be corrupted." "There's a potential there," Gerhardt added, "that just has not existed with other presidents before."

Then there is the crime of perjury to consider. Along with his businesses, Trump brings another liability — literally — with him to the White House: He has been involved in more than 4,000 state and federal lawsuits, according to a USA Today analysis. As the leader of the free world, more than 60 lawsuits come with him that include disputes over contracts, taxes and even his campaign. All will be open and exposing him to scrutiny never before seen.





We have a president that now is openly using his power in ridiculously foolish billion dollar fiascos that could seriously fail such as his imbecilic wall. Many authorities find this concept flawed with no chance Mexico will pay for it despite Trump’s foolish belief they will. Many have said this wall can easily be scaled, or dug under. Meanwhile serious disruption of wildlife will result and twenty billion dollars squandered. If Bannon’s stated goal is to bring down the government, this gigantic boondoggle will be one of many reasons our government might fail with all on its early agenda.


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Review of Richard Pena and John Hagan’s Last Plane Out of Saigon, by Daniel C. Lavery, for VVAW’s “The Veteran”

Traveling Wall

Beginning at the Traveling Wall in Austin, Texas, a smaller replica of the National Vietnam Memorial, Richard Pena expresses a somber emotion for those who died in Vietnam seeing a woman's tears. He knew her pain would never cease. Pena was on the last plane out of Vietnam after spending a tour as a medic in Saigon. His photo was taken by a Viet Cong soldier when that final plane left. He recognized himself carrying his law school brief case upon returning with a delegation at the War Remnants Museum in Ho Chi Minh City in 2003. Pena's journal entries while serving from 1972 to 1973 as an Operating Room Specialist are aided by John Hagan, author of nine books and many articles as professor of Sociology and Law, Northwestern University, who comments on the context of Pena's story in history with references.

Last Plane Out of Saigon Pena      

Author Richard Pena pointing to himself entering the last plane out of Saigon

Pena's parents were proud of their Hispanic heritage and taught him by example. His father won a Silver Star for his service at Iwo Jima. Pena won best all-around high school athlete in San Antonio, Texas. He attended University of Texas at Austin when students burned their draft cards and protested the Vietnam conflict. The My Lai massacre struck raw nerves his senior year. Soon at Kent State National Guardsmen killed four students and wounded more wrenching America. His low lottery number made it certain he would be drafted. He tried to fail his physical but they were taking anyone who breathed then and entered the Army, June 14, 1971 as one of the last drafted.

3rd Field Hospital SaigonPena arrived at the 3rd Field Hospital in Saigon during the North Vietnamese siege of An Loc when they shot down four aircraft and killed nearly all the residents a few months before Nixon's presidential election during an opportunity for peace talks to resolve the conflict. His objections to pressing for peace were politically motivated as Humphrey would have gained substantial support as a peace candidate despite his role with LBJ. Nixon's voice on tape in the oval office showed he proposed nuclear weapons to succeed but Kissinger replied he thought it would be too much. Nixon said, "I don't give a damn" about civilians killed by U.S. bombing USA Today reported February 28, 2002. While peace was possible Nixon refused to press for it and made the South Vietnamese think if he were president they would get a better deal prolonging the war needlessly and causing more than 20,000 more American deaths.

Nixon against ProtestorsPena called Vietnamization a catastrophe demonstrated graphically as he arrived. Young ARVN (Army of the Republic of Vietnam) troops threw down their weapons and fled with villagers as the North Vietnamese launched an unprecedented invasion. They expected 200 or so casualties but 2000 marched toward a 100 bed hospital 60 miles away. However many were mortared by Communists on Highway 13 and others accidentally killed by our B-52s. The Air Force accidentally missed the Communists and hit a South Vietnamese village! Pena joined a group of fifteen who worked the Operating Room confronted by death who built a strong companionship.

Soon a C-130 aircraft crashed from mechanical failure causing them to expect many casualties. Burn patients were the worst, difficult to look at, tough to treat, and many died. The first soldier's face appeared plastered red, hair and eyebrows burned away, red burns ran the length of his young body. He had a wife and young child.They smeared Sulfamylon cream over him feeling helpless. His coworker said he would soon die. A sergeant arrived with a broken ankle and numerous lacerations. These professionals knew the risks but it is for the young whom Pena felt the most sorry. The lifers have some control but not the draftees. The sergeant wanted to know how many survived but Pena couldn't tell him only three made it. Pena wondered how many were on the plane and learned there were forty five. The government released only the number fourteen. Such lies insulted Pena and the others. It added brainwashing to misinformation. C 130 Crashed in Vietnam

An allied Cambodian arrived by air in desperate condition and needed a transfusion from someone with B positive blood. Pena readily provided it as the only one with that type. The doctors said he couldn't survive the operation, yet he wouldn't live without one! They amputated his left leg and blood splattered all over the floor. A nineteen year-old soldier was shot in the head and died from his wound. An American asked him for a cigarette but he didn't have one, so he shot him in the back of the head at point blank range with a .38 pistol. A clean-cut man named Holley had a wife he never cheated on but once. He was found the next morning in a lover's embrace as the girl had put ground-up glass in his food, the sixth American that girl killed. Soon we understand how Pena felt an impermanence sweep over him and all his previous concerns seemed small and unimportant. Richard Pena President of the Texas State Bar Much later Pena became President of the American Bar Foundation and State Bar of Texas. His practice started as a solo attorney for the common person, without an office using an old beat up car. He felt his experience in Vietnam gave him the courage, willpower and confidence to stand up against injustice and fight for his clients. "It was the road less traveled, but it was my road." Published 2014 by Story Merchant Books, 9601 Wilshire Blvd. # 1202, Beverly Hills, Ca 90210

Bio: VVAW member Daniel C. Lavery graduated Annapolis, navigated a Navy jet, and a ship, turned peace activist and became a civil rights lawyer for Cesar Chavez's UFW. His memoir, All the Difference, describes his experiences: website:

  Last Plane Out of Saigon by Richard Pena

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Find Your Motivation and Find Your Way to Success

11 Dec 2015/by Daniel Lavery/in Blog Topics: Adversity, Change, Dreams, Success, Taking Action

After I resigned my military commission as a naval officer because I lost motivation from the Vietnam War, I wondered what I could do for my future to make my life worthwhile. My best high school friend was in town as a civil rights lawyer and asked if I wanted to watch him argue a case for Cesar Chavez’s fledgling union against wine growers’ attorneys.Dad USS Whetstone (LSD 27)

  Dan hired by ACLU for farmworker project in Los Angeles 1974

Hugh Manes Jerry Cohen Civil Rights Attorney for UFW

(Civil rights lawyer Jerry Cohen addresses UFW crowd with an inspirational speech)

Cesar Chavez and dogs Huelga and Boycott      

(Cesar Chavez and his two German Shepherds)

His arguments demolished the private property claims of the ten slick business attorneys for the wine industry who tried to paint the farm workers as law-breaking scum. I was convinced I could never do anything so challenging. He convinced me that with determination and a subject that inspired me, I could do anything I set my mind on. Since I was motivated by the concept of justice, watching him win against his formidable opponents provided the spark I needed. Before long I too was a civil rights lawyer pursuing justice for the powerless. My life had been transformed into meaningful work every day.

Dan, Joan, and Aleksey at the Gallo March during the Boycott(Dan, Joan, and Aleksey at the Gallo March during the Boycott; photo from fellow Hastings College of Law friend and classmate, Howard Watkins of Fresno)

I had a similar challenge when beginning to write my memoir, which took great determination, study, and practice at word art from authors and professors of creative writing. It appeared such a daunting task with a life of so many unconnected lively experiences, how could I create a book that would accomplish my purpose of sharing my inspiration? With their encouragement I developed my craft and in six years a book.

book cover all the difference

How does what you do connect you to your greatness or your potential? Gaining confidence from a friend who knows your potential is a great asset. My father, on the other hand, discouraged me from the practice of law and said I could never pass the bar exam. Having had the opportunity to argue civil rights cases for the poor and powerless was an opportunity to achieve greatness for a righteous cause. Others said I did great work and had been transformed from the friend they knew before as an athlete, but not an advocate for the poor that made a difference in so many lives. That made me gain confidence as did my friend’s coaching and that of my professors and writing coaches when I retired and wrote my book.

Dan Reading poem at Onion Fall Poetry Festival 11102013

(Dan reads from his memoir, All the Difference, at a book signing locally)

What wisdom or guidance can I share for others? Don’t always follow your father’s advice, or that of anyone else who does not know your motivation, passion, and determination. If you have a passion to do something some people don’t believe possible, you should not be discouraged. You can do anything you set your mind to accomplish with undying determination, a reasonable goal, and the necessary training. You can always improve yourself and your future with tenacity, resilience, and the right motivation. Seek out positive people if others discourage your dream. Even if no one sees you as you want to become, you should follow your heart, but don’t forget to carry your mind with you on your journey.

  Words on Fire Poster                               Brette Elizabeth, Aleksandyr, Sean, (Back) Dan and Joan Lavery (front) 1995

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Why Did Israel Attack the USS Liberty?

Map of USS Liberty AttackU.S. Ship Torpedoed, Napalmed; Survivors Strafed

On June 8, 1967, an American naval vessel, the USS Liberty, was sailing in the Mediterranean, when Israel's military purposely attacked it.

The American flag aboard at the time was in plain sight when this dastardly attack by three unmarked Israeli planes occurred. Three torpedo boats joined the savagery starting with rockets and then napalmed our troops used in Vietnam that caused many to protest because of its effect on burning skin. As if this was not brutal enough, American soldiers aboard the Liberty were pelted with machine-guns while they attempted to put out the fires these attackers started and three torpedo attacks finished the assault for good measure! Moreover, the Israelis shot all of the life rafts on the American ship, which was a war crime for a ship in extreme distress.  Israeli jet attacking Liberty

President Lyndon Johnson thought these attacks must have come from Egyptians and prepared our forces nearby for retaliation, but called it off when informed our ally, Israel's forces, were the culprits. The American newscasters reported this deliberate attack as a mistake. An investigation under Admiral John S. McCain's direction stated it was a case of mistaken identity! McCain's shielding Israel's massacre of American sailors created a distinctive union with Israel and continued with his Arizona Senator son. All the sailors were sent to different locations and told to consider it an "accident."  One must believe the Israelis would blame the Arabs for this deliberate attack on our troops.

Headlines USS Liberty Attacked

Why would the Israelis want to destroy the Liberty? She was an intelligence gathering vessel, a spy ship, that knew Israel sought to accelerate the 1967 Six-Day War to increase territory by attacking Arab territories in the West Bank and the Gaza Strip and possibly Syria as well. One report asserted a conspiracy existed between Israel and the CIA and theorized the attack on the Liberty would arouse suspicion against the Arabs and inflame a passion for revenge against them to Israel's delight.

USS Liberty dead

In 1983 a high level report called the claim a lie that this was a mistaken identity attack by the Israeli's. Moreover, the Israelis had asserted falsely that the Liberty traveled at a high speed near thirty knots when the truth was more like five and refused to reveal itself despite its conspicuous flag! The truth is that twenty five sailors were dead when Israel's forces first signaled to US forces and lied that no flag was flying to identify the Liberty after they shot down the flag to hide their infamy our sailors asserted. No one could have mistaken the Liberty's identity also because the name "Liberty" and its identifying numbers clearly were displayed next to its name. Even more damning is the fact that Israeli planes circled the ship thirteen times while sailors waved to our "Ally" according to eye-witness accounts shortly before they were slaughtered. Most disturbing is that one of the Israeli torpedo boats used in the attack is now in an Israeli museum as a trophy!

USS Liberty on fire

For documentation of this disastrous attack a DVD Documents 'Best Ally's' Treachery in Deliberate Attack on USS Liberty along with a video documentary, 'Loss of Liberty: Attack on the USS Liberty." It was premiered in Washington, D.C. at the Third International Barnes Review Conference on Authentic History and the First Amendment during June 14-16 that showed Israels' forces attacked the Liberty on June 8, 1967, and killed 34 American sailors and wounded 171 more. Tito Howard, a documentary film-maker, produced the video, and was the guest on a May 26 broadcast of Radio Free America, the weekly call-in talk forum sponsored by American Free Press with host Tom Valentine.

USS Liberty with dead numbered

The USS Liberty remains the most decorated ship in the history of the United States Navy.  A medal of honor went to Captain McGonagle, and two Navy crosses, 11 silver stars, 23 bronze stars-most of them with a "V" for valor-and a presidential unit citation for the remainder handed out by President Johnson.  The Israelis made a phony contention that Egyptian armor and infantry had crossed into the Negev, which is part of Israel and that they were responding to this assault when on June 5, 1967 they destroyed 80 percent of the Egyptian Air Force on the ground. And the next day they claimed they destroyed the air forces of Egypt, Syria, and Jordan because they wanted the Golan Heights and control over the West Bank and the Sinai. The USS Liberty was in the way of this plan.

tombstone of William McGonagle

It is the great hope of the makers of the film that people who see it will urge others to see the film, particularly friends and family and neighbors who have been in the military. The military people are the ones who have the experience and understand it best and they are the people who want to do more about it to right this wrong. The survivors and their supporters want a complete investigation into the attack.  Everyone concerned deserves to have a complete resolution of this tragedy even after all these years. Author of Body of Secrets, James Bamford, included in his book an extensive account in his chapter on the Liberty, and it is featured in this film.  Additional articles on the tragedy of the Liberty may be found below:

Assault on USS Liberty


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Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278 , Daniel C. Lavery for appellant

Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278 , 186 Cal.Rptr. 184

[Civ. No. 64781. Court of Appeals of California, Second Appellate District, Division One. October 4, 1982.]JOHN R. KELLY, Plaintiff and Appellant, v. GENERAL TELEPHONE COMPANY, Defendant and Respondent.(Opinion by Dalsimer, J., with Spencer, P. J., and Lillie, J., concurring.)COUNSEL

Daniel C. Lavery for Plaintiff and Appellant.

Albert M. Hart, H. Ralph Snyder, Jr., and Richard E. Potter for Defendant and Respondent.



Plaintiff, John Kelly, appeals from the order of dismissal entered following the sustaining of demurrers of defendant, General Telephone Company, without leave to amend.

On August 5, 1980, plaintiff filed a complaint containing three causes of action: slander, interference with business relations, and intentional infliction of emotional distress. An uncertainty demurrer to the cause of action for slander was sustained, general demurrers to the other causes of action were sustained, and plaintiff was given leave to amend.

Plaintiff's first amended complaint contained five causes of action: slander, interference with prospective advantage, negligent infliction of emotional distress, intentional infliction of emotional distress, and violation of Labor Code section 1050. The general demurrers to the causes of action for interference with prospective advantage and violation of Labor Code section 1050 were sustained without leave to amend. The general demurrers to the other causes of action were sustained with 30 days leave to amend. Since the order sustaining the demurrers did not include a statement of the grounds on which the order was based as required by Code of Civil Procedure section 472d, we are unable to ascertain the basis for the trial court's decision.

Plaintiff filed a second amended complaint. The general demurrer to plaintiff's second amended complaint was sustained without leave to amend "per [the] points and authorities in [defendant's] moving papers."


[1] In our review of the orders sustaining the demurrers without leave to amend, we accept as true all factual allegations properly pleaded. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713 [63 Cal.Rptr. 724, 433 P.2d 732]; Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894 [136 Cal.App.3d 284] [57 Cal.Rptr. 19].) Plaintiff's cause of action for slander, the first cause of action in the second amended complaint, alleges that plaintiff voluntarily terminated his 13-month period of employment by defendant in July 1979. Plaintiff had an excellent work record with defendant and had a reputation as "a person of good name, honesty and credit." In December 1979, plaintiff reapplied for employment with defendant and was informed that he was "'ineligible for rehire.'" Plaintiff alleges that his former supervisor, Tom Hansen, "acting within the scope of his employment," said to Mr. Robert McGinity, Mr. Hansen's supervisor and managing agent of defendant, that plaintiff "'misused company funds by buying materials without the proper authorization'" and falsified invoices. Plaintiff alleges that these statements were made to various other employees of defendant, including people in the personnel office. As a result, defendant changed plaintiff's personnel records to state that he was "'ineligible for rehire.'"

Plaintiff alleges that Hansen made the statements with intent to injure plaintiff's reputation. He alleges that Hansen made the statements for the reason that he hated plaintiff because of plaintiff's union activities.

[2] Defendant argues that plaintiff did not allege publication of these statements because plaintiff alleged only that the statements were made by one of defendant's employees to other employees of defendant. This argument is without merit as publication occurs when a statement is communicated to any person other than the party defamed. (Bindrim v. Mitchell (1979) 92 Cal.App.3d 61, 79 [155 Cal.Rptr. 29], cert. den.,444 U.S. 984 [62 L.Ed.2d 412, 100 S.Ct. 490].) Under principles of respondeat superior, an employer may be held liable for a defamatory statement made by its employee. (SeeSanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 411 [134 Cal.Rptr. 402, 556 P.2d 764].) That publication may involve internal corporate statements was recognized inAgarwal v. Johnson (1979) 25 Cal.3d 932, 944 [160 Cal.Rptr. 141, 603 P.2d 58], the court stating that internal company statements regarding the plaintiff's "'lack of job knowledge and cooperation'" were "published." (Ibid)

[3] The statement that plaintiff falsified invoices was slanderous per se in that it charged plaintiff with forgery. Civil Code section 46 defines slander in pertinent part as follows: "Slander is a false and unprivileged publication, orally uttered ... which: [?] 1. Charges any person with crime ...." Forgery may be committed by falsification of invoices with intent to defraud. (Pen. Code, ? 470.) The statement that plaintiff falsified [136 Cal.App.3d 285] invoices clearly implied that plaintiff did so with intent to defraud. (See Carl v. McDougal (1919) 43 Cal.App. 279, 281 [184 P. 885].)

[4a] The qualified privilege of Civil Code section 47, subdivision 3, may apply to the statement that plaintiff falsified invoices. That section provides in pertinent part that "A privileged publication ... is one made ... [?] 3. In a communication, without malice, to a person interested therein, (1) by one who is also interested ...." [5] This qualified privilege may exist where the communicator and recipient have a common interest and the communication is reasonably calculated to further that interest. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846 [115 Cal.Rptr. 582].) Communication among a company's employees that is designed to insure honest and accurate records involves such a common interest.

[4b] Malice necessary to prevent application of the qualified privilege may be alleged by pleading that the publication was motivated by hatred or ill will toward the plaintiff. (SeeSanhorn v. Chronicle Pub. Co., supra, 18 Cal.3d 406, 413-414.) Plaintiff alleges, "the statements set forth above were published ... with express and implied malice and with design and intent to injure plaintiff in his good name, reputation and employment .... The statements were made with malice in fact by Tom Hansen ... in that: ... [?] (c) Mr. Hansen ... harbored ill will and hatred for the plaintiff in that he has a history of being active with his union ...." By these allegations, plaintiff sufficiently pleaded malice. (See ibid) The trial court erred in sustaining the demurrer to the cause of action for slander.


Plaintiff employs in part a "chain letter" or cumulative type of pleading. That is, plaintiff's cause of action for negligent infliction of emotional distress, the second cause of action in the second amended complaint, incorporates by reference the entire first cause of action. This type of pleading should be avoided as it tends to cause ambiguity and creates redundancy.

Plaintiff alleges that defendant had a duty not to accuse any of its employees of falsifying invoices without conducting a reasonable investigation. Plaintiff then alleges that defendant breached this duty "by its conduct mentioned herein." There is no express allegation of defendant's failure to investigate. Plaintiff further alleges that as a proximate result of defendant's breach, he suffered humiliation and emotional distress. [136 Cal.App.3d 286]

As discussed ante at page 285, the qualified privilege under Civil Code section 47, subdivision 3, protects a defendant from being held liable in defamation for statements made without malice by any of its employees to other employees of that defendant. Thus, an employer is not liable for defamation if one of its employees advises other employees, such as personnel officers, of a suspicion that a former employee falsified records as long as the communication is not motivated by malice. [6] We hold that this privilege applies with equal force to negligent infliction of emotional distress. [7] We also hold that a corporation may be held liable for negligent infliction of emotional distress when its employee, acting within the scope of his employment, makes a defamatory internal corporate communication concerning a third party without first conducting a reasonable investigation as to the truth of the matter if the communication is motivated by malice. A corporation can act only through its agents. Mr. Witkin has stated, "A private corporation is ordinarily liable under the doctrine of respondeat superior for torts of its agents or employees committed while they are acting within the scope of their employment." (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, ?26, p. 2326, original italics; also see 1 Witkin, Summary of Cal. Law (8th ed. 1973) Agency and Employment, ? 155, p. 754.) As mentioned ante, at page 284, the second amended complaint alleged that Mr. Hansen's acts were done within the scope of his employment by defendant.

Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 930 [167 Cal.Rptr. 831, 616 P.2d 813], held that there is a cause of action for negligent infliction of serious emotional distress. The court there held that such a cause of action was present because the defendant's conduct was objectively verifiable conduct that foreseeably elicited a serious emotional response, thus serving as a measure of the validity of the plaintiff's claim of emotional distress. Failure to investigate charges of falsification of invoices is also objectively verifiable and likely to cause serious emotional distress.

Although plaintiff alleged that he suffered emotional distress, he failed to allege the degree of emotional distress suffered. Serious emotional distress is an essential element of a cause of action for negligent infliction of emotional distress. (See Ibid) Since plaintiff failed to allege that defendant's conduct caused him to suffer serious emotional distress and also failed to allege that Mr. Hansen did not conduct a reasonable investigation of the charges, there was no error in sustaining the [136 Cal.App.3d 287] demurrer to the second cause of action of the second amended complaint, but plaintiff should have been given leave to amend. (Ibid)


Plaintiff's cause of action for intentional infliction of emotional distress, the third cause of action in the second amended complaint, incorporates by reference both causes of action already summarized. Plaintiff alleges that the statements complained of were made to cause plaintiff to suffer emotional distress and caused plaintiff "humiliation, mental anguish and emotional and physical distress." He also alleges that defendant persisted in the described conduct even after plaintiff informed defendant that the statements were false. The allegation that defendant persisted in the described conduct is ambiguous in that various acts of defendant were alleged, including the change made in plaintiff's personnel records as well as the communication of the defamatory matter to numerous employees.

[8a] Our Supreme Court has stated that conduct may be considered outrageous when a defendant abuses a position that gives it the power to damage a plaintiff's interest. (Agarwal v. Johnson, supra, 25 Cal.3d 932, 946.) We hold that the spreading of deliberately false statements that a former employee in effect committed forgery is extreme and outrageous conduct. When such conduct results in alteration of the former employee's personnel records to reflect that he is ineligible for rehire, a position of power has been abused. As our Supreme Court has stated, abuse of a position that gives one the power to damage a plaintiff's interest is outrageous conduct.

[9] "A prima facie case [of intentional infliction of emotional distress] requires: '(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress. [Citations.]'" (Ibid) [8b] As plaintiff has not alleged that he suffered severe emotional distress, the demurrer to the cause of action for intentional infliction of emotional distress should have been sustained, but plaintiff should have been afforded an opportunity to amend. If plaintiff amends, he should allege with greater specificity what conduct of defendant persisted after plaintiff informed defendant that the statements were false. [136 Cal.App.3d 288]


Plaintiff's cause of action for intentional interference with prospective advantage, the second cause of action in the first amended complaint, after incorporating by reference an inadequately pleaded cause of action for slander, alleges that defendant, through its employees, intentionally interfered with plaintiff's attempt to be rehired by defendant. [10] A cause of action for intentional interference with contractual relations does not lie against a party to the contract. (Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 999 [135 Cal.Rptr. 720].) [11] Plaintiff did not allege that defendant had a duty, either contractual or statutory, to rehire him. If such duty existed, the proper cause of action would be for its breach, not for interference with prospective advantage. (See Larez v. Oberti (1972) 23 Cal.App.3d 217, 226 [100 Cal.Rptr. 57].) The trial court ruled correctly in sustaining the demurrer to the cause of action for intentional interference with prospective advantage without leave to amend.


The cause of action for violation of Labor Code section 1050, the fifth cause of action in the first amended complaint, after incorporating by reference the first two causes of action and inadequately pleaded causes of action for intentional and negligent infliction of emotional distress, alleges that defendant "knowingly caused ... its agents in its employ to commit a violation of Section 1050 of the California Labor Code" and that, as a proximate result thereof, plaintiff was not rehired. Labor Code section 1050 provides, "Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor." Labor Code section 1054 provides that any person who violates section 1050 is liable to the aggrieved party for treble damages.

[12] Labor Code section 1050 applies only to misrepresentations made to prospective employers other than the defendant. It does not apply to misrepresentations made by employees of the defendant to other of the defendant's employees.

Labor Code section 1050 was enacted in 1937 as a restatement of former Penal Code section 653e. (Stats. 1937, ch. 90, ? 2, p. 185; Stats. 1937, ch. 90, ? 1050, p. 211; Stats. 1937, ch. 90, ? 8100, pp. 326-328.) Former Penal Code section 653e provided: "Any person, firm or corporation [136 Cal.App.3d 289] ... who, after having discharged an employee from the service of such person, firm or corporation or after having paid off an employee voluntarily leaving such service, shall ... misrepresent and thereby prevent or attempt to prevent such former employee from obtaining employment with any other person, firm or corporation ... shall be guilty of a misdemeanor .... [?] ... [A]ny person, firm, association or corporation ... who shall violate any of the provisions of this act shall be liable to the party or parties aggrieved, in a civil action, to treble damages." (Stats. 1913, ch. 350, ? 1, p. 712, as amended by Stats. 1929, ch. 586, ? 1, pp. 988-989, italics added.) Labor Code section 2 provides, "The provisions of this code, in so far as they are substantially the same as existing provisions relating to the same subject matter, shall be construed as restatements and continuations thereof and not as new enactments." The pertinent provisions of Labor Code section 1050 are substantially the same as those of former Penal Code section 653e. It is apparent that the Legislature intended that Labor Code section 1050 would apply only to misstatements to other potential employers, not to misstatements made internally by employees of the party to be charged. The demurrer to the cause of action for violation of Labor Code section 1050 was properly sustained without leave to amend.

The order of dismissal is reversed. The trial court is directed to overrule the demurrer to the first cause of action of the second amended complaint and to grant plaintiff a reasonable time within which to amend the second and third causes of action of the second amended complaint. No leave shall be granted to amend the second cause of action of the first amended complaint or the fifth cause of action of the first amended complaint.

Spencer, P. J., and Lillie, J., concurred.