I dissent.
I agree with that portion of the majority opinion which holds that an action for malicious prosecution may be founded upon the institution of a proceeding before an administrative agency, and that the judgment in favor of Vial, a nonsehool defendant, should be reversed.
I cannot agree with that portion of the opinion which holds that the seven school defendants are entitled to hide behind the outmoded cloak of immunity from civil liability. Furthermore this is an appeal from a judgment entered upon the sustaining of a demurrer to a complaint without leave to *585amend. “ [T]he only issue involved in a demurrer hearing . . . [is] whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Griffith v. Department of Public Works, 141 Cal.App.2d 376, 381 [296 P.2d 838].) The rule is well established that the allegations of the complaint must be taken as true. The question is then one of law only and if the plaintiff has stated a cause of action on any theory he is entitled to a trial on the factual issues involved.
Plaintiff’s complaint charged that the 10 defendants, seven of whom were school officials,* had engaged in a conspiracy for the purpose of procuring his dismissal from his employment; that in aid of such conspiracy the school defendants aided and abetted the nonschool defendants in preparing affidavits falsely accusing plaintiff of certain vile and depraved acts. Plaintiff also alleged that because of these affidavits and the acts constituting the conspiracy, he was dismissed from his employment; that after a hearing it was unanimously found by the State Personnel Board that the charges against plaintiff were untrue. Plaintiff also sets forth in detail the damages suffered by him as a result of the charges made by the defendants. Plaintiff has set forth all the necessary elements of an action for malicious prosecution.
The following statement from the majority opinion is clearly without basis in fact or in law: “The alleged purpose of the conspiracy, and, accordingly, the purpose of the school defendants in aiding the nonschool 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.” (Emphasis added.)
It will be recalled that plaintiff charged that the conspiracy was malicious; that defendants agreed between themselves to falsely charge plaintiff with vile and depraved acts to procure his dismissal. The majority opinion informs us, however, that ‘ ‘ The policy on which the rule [immunity from civil liability] 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.” (Emphasis added.) It will also be recalled that three of the defendants were not school or department personnel. The majority, however, states that this does not remove the protective “immunity” from *586the school defendants. It is difficult for me to imagine how public officials acting with malice aforethought and swearing to falsehoods in conspiracy with outsiders can possibly be considered as acting within the “scope of their authority.” The undeniable scope of the authority of school officials is to protect students from .those found unfit to teach by reason of lack of ability or immoral character. The scope of authority of such school officials is most certainly not to procure the dismissal of teachers by entering into a conspiracy with outsiders to defame and assassinate a teacher’s character without justification or probable cause for believing the defamatory remarks to be true. The question of probable cause cannot be tried on a demurrer hearing inasmuch as for the purpose of determining the sustainability of the demurrer every single allegation of plaintiff’s complaint must be taken as true. Aside from the doctrine of governmental immunity, which I will hereinafter discuss, plaintiff was entitled to a trial on the merits since governmental immunity does not apply when the official is acting outside the scope of his authority. A majority of this court held, in White v. Towers, 37 Cal.2d 727, 733 [235 P.2d 209, 28 A.L.R.2d 636],* that “It is well established that a public officer is liable for injuries caused by acts done outside the scope of his authority.” In cases of this character liability for damages cannot be made to rest on mere conspiracy. The gravamen of the action is the malicious prosecution of the criminal charge without probable cause. (Dowdell v. Carpy, 129 Cal. 168,171 [61 P. 948] ; Andrews v. Young, 21 Cal.App.2d 523 [69 P.2d 891].) If any public official, under the guise of investigation, may conspire with persons having no official standing to injure others by maliciously and falsely accusing them of base and vile conduct and in so doing escape all liability, it would appear to me that such a result would lead to more, rather than less, dishonesty on the part of public officials. In the other eases in which I have dissented (White v. Towers, 37 Cal.2d 727, 734 [235 P.2d 209, 28 A.L.R.2d 636] ; Coverstone v. Davies, 38 Cal.2d 315, 324 [239 P.2d 876] ; Talley v. Northern San Diego County Hospital Dist., 41 Cal.2d 33, 41 [257 P.2d 22] ; Turner v. Mellon, 41 Cal.2d 45, 49 [257 P.2d 15] ; Peterson v. Robison, 43 Cal.2d 690, 698 [277 P.2d 19] ; dissenting opinion on denial of hearing, Madison v. City & County of San Francisco, 106 Cal.App.2d 232 [234 P.2d 995, 236 P.2d 141]) a majority of this court had not reached the peak of injustice that it has reached in the case at bar.
*587In my dissent in the Talley case (supra, p. 43) I pointed out that1 ‘ The government obviously cannot insure the citizen against all defects and errors in administration, but there is no reason why the most flagrant of the injuries wrongfully sustained by the citizen, those arising from the torts [in this instance a malicious one] of governmental officers and employees, should be allowed to rest at the door of the unfortunate citizen alone. The entire doctrine of governmental immunity rests upon a rotten foundation, and professors, writers and liberal-minded judges are of the view that it should be placed in the judicial garbage can where it belongs. (See Barker v. City of Santa Fe, 47 N.M. 85 [136 P.2d 480] ; 75 A.L.R. 1196; Brooklyn Law Review, April, 1932, ‘ Should the Liability of Municipalities vn Tort be Extended to Include Injury and Damage Caused in the Negligent Performance of a Governmental Function?’; 120 A.L.R. 1376; 54 Harv.L.Rev., pp. 437-462, ‘Municipal Tort Liability in Operation’.)” I also pointed out that I had thought when People v. Superior Court, 29 Cal.2d 754 [178 P.2d 1, 40 A.L.R.2d 919], was decided in 1947, that we had begun to revamp our ideas. It was there said that “The considerations of an asserted subversion of public interests by embarrassments, difficulties and losses, which developed the doctrine of nonliability of the sovereign in former times, are no longer persuasive in relation to an industrial or business enterprise which by itself may be looked to for. the discharge of all appropriate demands and expenses growing out of operation.” A majority of this court has gone to greater lengths here in sustaining the outmoded doctrine than ever before. If the archaic doctrine of governmental immunity were annihilated once and for all by this court, situations such as we have here where, according to the allegations of the complaint, dishonest public officials conspired with private persons would become nonexistent. The very thought that they might be found guilty of malicious prosecution would be a deterrent to conduct not based on probable cause.
I would reverse the judgment in favor of all defendants.
Two of the nonsehool defendants are not involved on this appeal.
(Which I believe was incorrectly decided.)