Insofar as the court holds that the demurrer was properly sustained to the first amended complaint, I agree, although there are more substantive reasons for my concurrence than appear in the majority opinion. However, I respectfully dissent from the holding that the demurrer to the fourth cause of action should have been overruled. It is my view that for sound reasons of public *378policy a defeated candidate cannot assert a personal cause of action for relief of the type soiight here.1
First, the personal relief which is sought would involve the courts in the supervision of election campaigns to a degree unwarranted by existing law. This intrusion, in support of a private monetary remedy, ought not to be undertaken by the courts, at least in the absence of a clear legislative mandate which has not been given. (Compare Alexander v. Todman (3d Cir. 1964) 337 F.2d 962, 967-969, cert, den., 380 U.S. 915 [13 L.Ed.2d 800, 85 S.Ct. 893].)
The reasoning of Jones v. McCollister, supra, 159 Cal.App.2d 708, is applicable. There, members of a county Democratic central committee sought to enjoin the dissemination of newspaper advertisements favoring a Republican candidate for the Assembly which advertisements were addressed to “Fellow Democrats” and signed by “Marin-Sonoma Democratic Committee for McCollister.” The court affirmed a judgment of dismissal entered after a general demurrer was sustained. It said: “ ... [T]he Legislature has not sought to impose upon the courts the labyrinthine task of supervising the conduct of individual election campaigns, and, in the absence of clear allegations of facts convincingly showing fraudulent misrepresentation, we see no reason to arrogate to the judiciary a task so fraught with the danger of infringement upon the rights of the electorate and its free exercise of the right to choose for itself. Judicial office in this state is officially (Elec. Code, §§ 41, 2541) and traditionally nonpartisan. Yet to establish the precedent here sought would require the courts to assume an active role in the supervision and regulation of party campaigns, to an extent limited only by the ingenuity of candidates and their supporters. The Constitution, in removing from political parties the right to determine the ‘tests and conditions upon which electors, political parties, or organizations of electors’ may participate in state elections, has vested that power in the Legislature, and not in the judiciary. . . .” (159 Cal.App.2d at p. 713.) As in McCollister, our Constitution gives to the Legislature, not the courts, the responsibility at issue in this case, it being to “prohibit improper *379practices that affect elections . . . (Cal. Const, art II, § 3.)2 The Legislature has not created a' private remedy, and unless it does the courts ought not to intrude.
Secondthe majority correctly notes that ordinarily where a statute creates an obligation and provides a remedy for breach of the obligation, the statutory remedy so provided is exclusive, if it is adequate. (Orloff v. Los Angeles Turf Club, Inc. (1947) 30 Cal.2d 110, 112-113 [180 P.2d 321, 171 A.L.R. 913].) Elections Code, section 12057, relied upon by plaintiff provides for injunctive relief in a factual setting where the section is applicable. (See fn. 1, supra.)
It is apparent, nevertheless, that in disseminating the pamphlet in question the defendants misled the voters as to the party affiliation of Charles Navarro, the successful candidate. The complaint alleges that Mr. Navarro is a registered Republican. The pamphlet can be fairly read only as implying that he is a Democrat.3 Thus, it is a fraud on the public. It is unnecessary here to express an opinion as to the materiality of a misrepresentation of party status in an election constitutionally required to be non-partisan. (Cal. Const., art II, § 5.) Assuming that the misrepresentation is material, it appears quite arguable that, in the discharge of its constitutional responsibilities the Legislature has provided a completely adequate remedy by the enactment of Elections Code, section 29132.4 Thus, criminal and injunctive sanctions have been imposed by the Legislature. It is for that body, and not the courts, to create a private remedy.
Third, since this matter is here on demurrer we are required to assume the truth of all of the allegations of the amended complaint, no matter how improbable they may be. (3 Witkin, Cal. Procedure (2d ed.) p. 2413 and cases cited.) Thus, we must assume the truth of the allegations “that *380it was the mailing of the aforesaid pamphlet that induced the public in general to elect Charles Navarro to the office of City Controller” and that “as a proximate result of’ defendants’ acts “plaintiff was not elected to the office of City Controller. . .” (Cf. Bush v. Head (1908) 154 Cal. 277, 284 [97 P. 512].) The proof of these allegations is essential to any cause of action based upon interference with a prospective relationship. (Wilson v. Loew’s, Inc. (1956) 142 Cal.App.2d 183 [298 P.2d 152]..) To accomplish that proof plaintiff obviously is going to have to show that substantial numbers of voters who cast legal ballots in the election would have voted differently had it not been for the pamphlet.5 As a matter of substantive law the testimony of such voters should not be allowed. In Bush v. Head, supra, the Supreme Court said:
“. . . Apart from other considerations it must be obvious that public policy, demanding, inter alia, the preservation of ‘secrecy in voting’ (Const., art. II, sec. 5) [now art. II, § 6] would not be subserved by permitting the vote of a lawful elector, who had cast his ballot in regular manner and form, to be impeached by a judicial inquiry into the reasons which led him to cast that ballot in favor of one candidate rather than another. ...” (154 Cal. at p. 282; (italics added).)
This is not an election contest where, under proper circumstances, the nature of illegal votes may be inquired into. (E.g., Canales v. City of Alviso (1970) 3 Cal.3d 118 [89 Cal.Rptr. 601, 474 P.2d 417].) The public policy referred to in Bush underscores the point first made that the issue here is essentially a political one, not for the consideration of a court. In determining whether a question is of the political category so as not to be justiciable, the dominant considerations are the appropriateness of attributing finality to the action of the political department, and the lack of satisfactory criteria for a judicial determination. (Coleman v. Miller (1939) 307 U.S. 433, 454-455 [83 L.Ed. 1385, 1396-1397, 59 S.Ct. 972, 122 A.L.R. 695].) Such criteria are present here.
*381Fourth, while this is not an action claiming that defendants libeled or slandered plaintiff, (he was not even mentioned in the pamphlet complained of) the first amended complaint does assert that defendants’ campaign tactics unfairly deprived plaintiff of the election. In Noonan v. Rousselot (1966) 239 Cal.App.2d 447, 450 [48 Cal.Rptr. 817], the court found it unnecessary to decide whether the law- allows such an action “for it is clear that if defendants’ utterances are protected' by the First Amendment, the power of this state to penalize them does not depend on the name given to the wrong. \ . . a state cannot foreclose the exercise of constitutional rights by mere labels.’ (N.A.A.C.P. v. Button, 371 U.S. 415, 429....)”
The majority here facilely asserts that the fourth cause of action is viable “[b]y analogy to the elements of a cause of action for inducing a breach of contract.” It rejects the defendants’ argument that First Amendment considerations justified the pamphlet by asserting that justification is an affirmative defense not to be considered on demurrer unless it appears on the face of the complaint6 and states that the amended complaint here does not show on its face that the statements were justified. It is patent that the statements were made in the course of an election campaign, by means of a printed pamphlet disseminated to potential voters. It escapes me why such an expression of speech is not initially protected by the First Amendment, unless made with that type of actual malice defined in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 280 [11 L.Ed.2d 686, 706, 84 S.Ct. 710, 95 A.L.R.2d 1412], i.e., “with knowledge that it was false or with reckless disregard of whether it was false or not.” Noonan v. Rousselot, supra, makes it clear that “the novel civil wrong which plaintiff wishes us to establish” (239 Cal.App.2d at p. 452) is subject to the New York Times Co. v. Sullivan requirements of proving actual malice, and that such malice must be pleaded (239 Cal.App.2d at pp. 452-453).
The first amended complaint here does not measure up to that standard. It does allege that defendants made representations which they knew to be false and which were made with the intent to wrongfully interfere with plaintiff’s opportunity-to win election as city controller of Los Angeles. But the representations referred to are that “the candidates *382endorsed within the pamphlet were the official endorsement [sic] of the Democratic party or an official branch of the Democratic party.” As pointed out above (fn. 1) the pamphlet cannot reasonably be so read. Thus, even if a cause of action otherwise existed, this court should not direct the trial court to overrule the demurrer, but rather should allow plaintiff leave to amend to bring himself within the New York Times requirements if he can. However, this dissent need not be predicated on this narrow point but rather on the broader propositions discussed above.
I would affirm the judgment (order) of dismissal.
Assigned by the Chairman of the Judicial Council.
In a proper case Elections Code, section 12057, gives a member of a county or state central committee the right to seek an injunction against misrepresentations that a candidate has the support of the committee involved. The court is correct, of course, in holding that no such action lay here, since litigation was not commenced until a year after the election. Additionally, the use of the name “The Los Angeles Democratic League” cannot reasonably be read as implying that the Democratic County or State Central Committee supported the Navarro candidacy. (Jones v. McCollister (1958) 159 Cal.App.2d 708, 710 [324 P.2d 639].)
Restatement of Torts, section 865, referred to by the majority, finds support in non-California cases (cited in Tentative Draft No. 16 to Rest. 2d Torts, notes to § 865) which, so far as elections are concerned, deal only with the failure to perform or misperform anee of ministerial duties by clerks and other election officials.
At the top of a simulated ballot page listing only one candidate for each of several municipal offices, including Mr. Navarro as candidate for controller, the pamphlet states “Vote Democratic”.
Elections Code, section 29132, reads: “Every person or corporation is guilty of a misdemeanor who, by abduction, duress, or any forcible or fraudulent device or contrivance whatever, impedes, prevents, or otherwise interferes with the free exercise of the elective franchise by any voter; or who compels, induces, or prevails upon any voter either to give or refrain from giving his vote at any election, or to give or refrain from giving his vote for any particular person at any election.”
The court might take judicial notice that in the Los Angeles primary nominating election in question Navarro, the winner, polled 357,681 votes out of a total of 581,278 votes cast. Plaintiff Gold placed second with 81,665 votes, and five other candidates shared the rest. To prove the allegations, plaintiff will have to show that but for the pamphlet at least 67,043 voters would have voted differently so as to deprive Navarro of his majority, assuming that the same number of votes would have been cast. In that event, and also assuming that Gold would have retained second position, Navarro and Gold would have been forced into a runoff. It could well be urged that the effect of the pamphlet on Gold’s ability to win the ultimate general election is too remote and speculative to justify judicial intervention. (Hill v. Carr (1914) 186 Ill.App. 515.)
The principle of law is correct. Justification is an affirmative defense, not to be considered on demurrer unless shown on the face of the complaint, not only in connection with the tort of inducing breach of contract upon which the majority relies (Herron v. State Farm Mutual Ins. Co. (1961) 56 Cal.2d 202, 206-207 [14 Cal.Rptr. 294, 363 P.2d 310]) but also in connection with the tort of interference with prospective economic advantage purportedly involved here (A.F. Arnold & Co. v. Pacific Professional Ins., Inc. (1972) 27 Cal.App.3d 710, 714 [104 Cal.Rptr. 96]).