147 Cal.App.3d 1170, 26921, Eichman v. Fotomat Corp.

Docket Nº:26921
Citation:147 Cal.App.3d 1170, 197 Cal.Rptr. 612
Opinion Judge:[10] Brown
Party Name:Eichman v. Fotomat Corp.
Attorney:[7] Franklin & McCann, Franklin & Franklin, J. David Franklin and Peter R. Conrad for Plaintiffs and Appellants. [8] John H. L'Estrange, Jr., for Defendant and Respondent.
Case Date:October 14, 1983
Court:California Court of Appeals

Page 1170

147 Cal.App.3d 1170

197 Cal.Rptr. 612

Adrian C. EICHMAN, et al., Plaintiffs and Appellants,


FOTOMAT CORPORATION, Defendant and Respondent.

Civ. 26921.

California Court of Appeal, Fourth District, First Division

Oct. 14, 1983.

Hearing Denied Dec. 28, 1983.

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Franklin & McCann and J. David Franklin, La Jolla, for plaintiffs and appellants.

John H. L'Estrange, Jr., San Diego, for defendant and respondent.

GERALD BROWN, Presiding Justice.

Adrian and Margaret Eichman appeal the judgment entered after the superior court sustained Fotomat Corporation's demurrer without leave to amend. The Eichmans contend the superior court erred in finding a judgment in an earlier action between the Eichmans and Fotomat is res judicata and bars the present suit.

The Eichmans entered into a franchise agreement with Fotomat in 1968. In 1973 the Eichmans sued Fotomat in the superior court of San Bernardino County, alleging Fotomat breached the franchise agreement and violated California's Unfair Trade Practices Act (Bus. & Prof.Code, § 17000 et seq.). In that suit, the Eichmans contended Fotomat sold goods and services to them at a higher price than it charged its company-owned stores; did not provide them with advertising and public relations assistance which it was obligated to provide, while the company-owned stores received such assistance; infringed on the Eichmans' territory by locating company-owned stores too close to their store; and misrepresented the amount of competition the Eichmans would face from the company-owned stores. On September 7, 1977, the Eichmans accepted a settlement offer of $7,500 made by Fotomat under Code of Civil Procedure section 998. In May 1978 a judgment based on the settlement was entered nunc pro tunc as of September 7, 1977.

On April 21, 1978, the Eichmans filed this action. The complaint here is much more detailed than was the complaint in the first action as it contains factual allegations regarding Fotomat's price-fixing schemes and its failure to provide certain goods and services it had promised the Eichmans which were not included in the first complaint. The general nature of the wrongs alleged in the two complaints, however, are the same, as is the injury claimed: the inability of the Eichmans to compete on equal footing with Fotomat's company-owned stores. The complaint here states causes of action

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for breach of contract, restraint of trade, monopoly, fraud, conversion, accounting, breach of fiduciary duty and declaratory relief.

Fotomat demurred to all causes of action except the accounting and declaratory relief counts on the ground the claims are barred by the res judicata effect of the judgment in the first action. In support of its demurrer, Fotomat asked the superior court to judicially notice a complaint against it in another case (the King case), in which the Eichmans are not parties. The King case was brought by other franchisees of Fotomat in 1976. The complaint in that case is almost identical to the one filed by the Eichmans here. Fotomat also asked the court to judicially notice the Eichmans' answer to an interrogatory Fotomat sent them in the first action. The...

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