De Angeles v. Roos Bros., Inc.

CourtCalifornia Court of Appeals
Writing for the CourtTAYLOR; SHOEMAKER, P.J., and AGEE
Citation52 Cal.Rptr. 783,244 Cal.App.2d 434
PartiesJohn DE ANGELES, Plaintiff and Respondent, v. ROOS BROS., INC., a Delaware corporation, and Robert S. Atkins Company of San Francisco, a California corporation, Defendants and Appellants. Civ. 22327.
Decision Date23 August 1966

Page 783

52 Cal.Rptr. 783
244 Cal.App.2d 434
John DE ANGELES, Plaintiff and Respondent,
ROOS BROS., INC., a Delaware corporation, and Robert S. Atkins Company of San Francisco, a California corporation, Defendants and Appellants.
Civ. 22327.
District Court of Appeal, First District,
Division 2, California.
Aug. 23, 1966.
Hearing Denied Oct. 19, 1966.

Page 785

[244 Cal.App.2d 436] Heller, Ehrman, White & McAuliffe, Caspar W. Weinberger, M. Laurence Popofsky, David Livingston, San Francisco, for appellants.

Joseph L. Alioto, Frederick P. Furth, Gerhard Stoll, San Francisco, for respondent.

TAYLOR, Justice.

Plaintiff, John De Angeles (hereafter De Angeles), filed this action for breach of his contract of employment as the executive vice-president of defendants, Roos Ros., Inc. and Robert S. Atkins Company (hereafter Roos-Atkins). On this appeal from a judgment in his favor entered after a court trial, and from the order denying the motion for a new trial, the question are: 1) the sufficiency of the evidence to support the findings on the issue of liability; 2) the trial court's alleged abuse of discretion in denying defendants' motion to vacate the submission; and 3) the sufficiency of the findings to support the judgment on the amount of damages awarded and the application for new evidence on appeal to mitigate damages.

Viewing the record in favor of the judgment, as we must, and disregarding the conflicts and contradictions in the evidence, the following appears: On January 9, 1959, the parties entered into a written agreement for the employment of De Angeles as executive vice-president of Roos-Atkins for a period of ten years starting January 1, 1958, at a salary of $35,000 per year.

De Angeles and Edward H. Gauer, the chairman of the board of Roos-Atkins, had been associated in the men's clothing business since 1944 when they formed a partnership to buy the Atkins Company. In 1958, they negotiated a transaction whereby Atkins acquired all of the stock of Roos Bros.; Gauer became chairman of the board of Roos-Atkins and De Angeles, executive vice-president and men's clothing buyer; Gauer owned 51 percent of the stock of Atkins; De Angeles 38 percent; the balance was owned by Colburn, the president of the corporation. Since 1944, De Angeles

Page 786

had regularly made two [244 Cal.App.2d 437] or three trips to New York City annually in connection with the men's clothing buying programs of Atkins and then Roos. In this field, customarily, the major portion of the annual requirement was purchased in January and more or less completed in March; the trips later in the year merely supplemented the earlier purchases.

In January 1962 De Angeles became critically ill with ulcers, was away from his office from January 9 until February 7 and thus was unable to participate in the January buying trip. After his return, Gauer suggested that he purchase some additional merchandise to supplement the December-January sales. Between March 11--15, De Angeles attended a meeting of merchandising executives in Gauer's office to discuss the balance of men's clothing purchases to be made in New York that month. De Angeles testified that Gauer expressed solicitude for De Angeles' health and suggested that it was not necessary for him to make the March buying trip to New York. De Angeles indicated that he had recovered and that it was his responsibility to complete the buying. Gauer suggested that De Angeles should take care of his health and stay out of the 'rat race' but did not order De Angeles not to go to New York. On March 16, 1962, De Angeles made the trip to New York and carried on the business of Roos-Atkins.

On March 20, 1962, Gauer sent a telegram informing De Angeles of his immediate discharge 'by reason of your acting contrary to my specific instructions as chief executive officer (of Roos-Atkins) * * * in going to New York.' On March 26, 1962, the discharge was ratified at a board meeting of Roos-Atkins. De Angeles was not paid anything after March 31, 1962.

The trial court found that the discharge of De Angeles was wrongful and without just or adequate cause; that Dr Angeles had sought but had not obtained or been offered any employment comparable to that under his contract with Roos-Atkins and that prior to his wrongful discharge, De Angeles faithfully performed all of his duties. Accordingly, the court entered its judgment for breach of contract, awarding respondent damages of $201,256, representing $35,000 per year from April 1, 1962, to January 1, 1968, with the portion from the date of judgment, March 20, 1964, to January 1, 1968, reduced to its present value by application of a six percent factor.

The Propriety of the Dismissal

The first and major contention on appeal is that the evidence does not support the judgment because the dismissal [244 Cal.App.2d 438] of De Angeles was justified by his deliberate violation of Gauer's order not to go to New York.

When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court Begins and Ends with a determination of whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding (Lipka v. Lipka, 60 Cal.2d 472, 475, 35 Cal.Rptr. 71, 386 P.2d 671; italics supplied by the Supreme Court). The duty of an appellate court is not to seek out and analyze conflicts or to substitute its own appraisal for that of the trial court in the absence of an obvious abuse of discretion. When two or more inferences can be reasonably deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. In the absence of prejudicial error of law or violence to reason, it is the duty of an appellate court to upheld the trial court (Schmedding v. Schmedding, 240 A.C.A. 324, 327, 49 Cal.Rptr. 523; Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183).

The uncontroverted evidence indicates that Roos-Atkins operated under a double structure and chain of command, one relating to the corporation as such and the second relating to its merchandising operations. In the first, De Angeles was executive vice-president, responsible to Gauer; in the second, De Angeles was in charge of buying men's suits and overcoats, responsible

Page 787

to Gauer as well as to the merchandising manager who set up the budget. De Angeles' responsibilities as a buyer represented about $5,000,000 of Roos-Atkins annual business of $22,000,000. He was a member of the executive group that made policy decisions for Roos-Atkins. In keeping with...

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  • Carmichael v. Reitz
    • United States
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    ...which he abandons at the trial level as a matter of strategy and purely for his own advantage (De Angeles v. Roos Bros., Inc. (1966) 244 Cal.App.2d 434, 442--443, 52 Cal.Rptr. 783). Application of the teachings of these cases to the pleadings and the record specified in footnote, 6, Supra, ......
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    ...fact finder. (E. g., Juchert v. California Water Service Co., supra, 16 Cal.2d 500, 503, 106 P.2d 886; De Angeles v. Roos Bros., Inc., 244 Cal.App.2d 434, 438, 52 Cal.Rptr. 783.) In finding that the university was concurrently negligent and that such negligence was a proximate cause of the ......
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    ...the California Rules of Court, the authority should be exercised sparingly. (De Angeles v. Roos Bros., Inc. 2 Cal.Rptr.3d 690 [(1966)] 244 Cal.App.2d 434, 443 [52 Cal. Rptr. 783].) Absent exceptional circumstances, no such findings should be made. (Green v. American Cos. Co. (1971) 17 Cal.A......
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    ...74. A judge may properly refuse to reopen a case when there has been no showing of due diligence. DeAngeles v. Roos Bros., Inc. (1966) 244 Cal. App. 2d 434, 441, 52 Cal. Rptr. 783; Giomi v. Viotti (1956) 144 Cal. App. 2d 714, 718, 301 P.2d 597. The court will properly deny a motion to reope......
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