Atkinson v. Superior Court In and For County of Los Angeles
| Decision Date | 24 April 1957 |
| Citation | 310 P.2d 145 |
| Court | California Court of Appeals Court of Appeals |
| Parties | William (Bill) ATKINSON, Jack Barsby, Alfred E. Brain, Clarence (Pete) Carpenter, Russell A. Cheever, Harriet Crawford, Individually and on behalf of all other instrumental musicians similarly situated, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent. John H. ANDERSON, Jr., Burnett F. Atkinson, Robert Bain, Edwin Vance Beach, Roland E. Bundock, Lawrence B. Bunker, George Callender, individually and on behalf of all other instrumental musicians similarly situated, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent.* Civ. 22272, 22273. |
John W. Preston, Los Angeles, Harold A. Fendler, Daniel A. Weber, Beverly Hills, for petitioners.
O'Melveny & Myers, Homer I. Mitchell, Charles G. Bakaly, Jr., Bodkin, Breslin & Luddy, Mitchell, Silberberg & Knupp, Loeb & Loeb, Averill C. Pasarow, Los Angeles, for real parties in interest.
These petitions for writ of mandate present the same legal questions and were heard together, as were the actions in the superior court from which the present applications stem.
They deal with the elastic fictional concept of a jurisdictional res consisting of a debt or contract obligation, and require the determination of the situs to be imputed to it.
The claim of plaintiffs in each action is that defendant American Federation of Musicians of the United States and Canada, an international labor union, acting as their exclusive bargaining agent, defrauded them by making agreements with their employers which divert to one Samuel R. Rosenbaum, as trustee, moneys earned and owing to plaintiffs as wages for services rendered. The trial court held that Rosenbaum, as trustee, is an indispensable party to each action and, as he has not been served personally in this State, the court has no jurisdiction to grant a preliminary injunction or appoint a receiver as a means of sequestering and ultimately determining title to certain moneys confessedly owing by defendant employers and under their agreements payable to said Rosenbaum as trustee.
The Atkinson case is a representative action brought by 22 instrumental musicians on behalf of all such employees (about 2400 in number) presently or previously hired by defendant motion picture companies. Defendants comprise four classes, (1) American Federation of Musicians of the United States and Canada (hereinafter designated as Federation), (2) numerous motion picture producing companies, e. g., Paramount Pictures Corporation, Loew's, Incorporated, Republic Productions Inc., Republic Pictures Corporation, (3) numerous corporations engaged in telecasting motion pictures, and (4) Samuel R. Rosenbaum, as trustee.
It is alleged that defendant Federation is an international labor union, that plaintiffs are members of same and of its local known as Musicians' Mutual Protective Association Local No. 47, A. F. of M.; that plaintiffs and those whom they represent are and were employed by defendant motion picture companies as musicians in production of pictures; that Federation is and was their exclusive bargaining agent and as such negotiated with employers the agreements involved in the action. Such agreements were made in 1952 and 1954 and provided that in the event of re-use of any motion pictures on television the employer should make certain 're-use payments' (as the pleader designated them) directly to the employee musicians of various classes, viz., $25 to a musician, $50 to a leader, $50 to a contractor, $75 to an arranger, and $25 to a copyist. Such reuse payments were intended and understood to be 'additional wages or compensation to the musicians involved.'
Contemporaneously with said 1952 and 1954 agreements the defendant motion picture companies were required by Federation to enter into trust agreements with said Rosenbaum, as trustee, which required them to pay to him in that capacity five per cent of the gross revenues from the use of motion pictures on television (designated in the complaint as 'royalty payments'), which said moneys were to constitute a 'Music Performance Trust Fund' and be used in arranging the presentation of personal performances by instrumental musicians in such areas throughout the United Stated and Canada as in the judgment of the trustee would contribute to public knowledge and appreciation of music.
Re-use payments were made to the individual employees until June, 1955, when an amendatory agreement was made by Federation with the employer companies. This was done pursuant to resolution of the International Executive Board of Federation authorizing the president, James C. Petrillo, 'to take such measures as he might deem fit to cause to be diverted from the plaintiffs to said trust fund the re-use payments aforesaid, upon the ostensible or alleged ground that the musicians who rendered their services in such motion pictures could not be located, well knowing that in truth and in fact said excuse was untrue and a sham, pretense and contrivance adopted by the Federation to effectuate their aims, purposes and intentions aforesaid and hereinafter alleged.' 1 The 1955 agreement thus procured worked a diversion of all accrued and future re-use payments into the trust fund held by Rosenbaum and above described. It is alleged that 'Petrillo and the International Executive Board were actuated by the selfish aim and purpose of perpetuating themselves in office and of maintaining their hold and control over the affairs of the Federation; and in furtherance thereof, used the medium of such trust fund payments to win the support of officials of the Federation's locals and member musicians throughout the United States and Canada, who vastly outnumber the plaintiffs and who were not and are not employed by the motion picture companies, and who make little or no contribution whatever to said trust fund, but who nevertheless benefit as recipients of the trust fund payments made or to be made by the defendant trustee, and whose continued support was and is courted and coveted by Petrillo and the International Executive Board at plaintiffs' expense in the manner aforesaid.' Approximately $1,495,000 in re-use payments have been diverted from plaintiffs into said trust fund since June 15, 1955, and another $5,000,000 will be so diverted unless injunctive relief is granted, so it is alleged. The re-use payments received by the trustee average $175,000 a month. The trust instrument requires that 90 per cent of the existing fund, not already budgeted for expenditure, by disbursed during each period of 12 months. The number of musicians entitled to said re-use payments is approximately 2,400, and they comprise less than one per cent of the total Federation membership.
Plaintiffs complain that a fraud has been committed upon them by their agent and a constructive trust in their favor exists with respect to moneys now due from defendant companies and remaining unpaid. 2 The petition avers that various companies stipulated at the hearing below that substantial sums of money owing by them had accrued prior to December 31, 1956, and remained unpaid. Also, that Republic Productions, Inc. and Republic Pictures Corporation, conceded that the sum of $67,000 for re-use payments had accrued under their agreements, together with another $126,000 under the trust agreement, assuming its validity (apparently referring to 'royalty payments'). All such moneys are payable under the agreement to trustee Rosenbaum who maintains his office in New York City and deposits all receipts in eastern and Canadian banks, none of it in California. The first cause of action 3 seeks declaratory judgment: 'Declaring that the provisions thereof requiring the making of such re-use payments and royalty payments to the trust fund and the diversion thereof to the defendant trustee to be invalid and unlawful, including any and all proceedings and measures taken by the defendants in pursuance thereof; * * * Enjoining the defendant motion picture companies and television users from making any further wage increase payments or royalty payments to said trust fund or the defendant trustee; and requiring that the same be paid to those of the plaintiffs who are entitled thereto, or in the case of any deceased musician, to his widow or estate; * * * Requiring that during the rendency of this action any and all such re-use payments or royalty payments in the possession, custody or control of the defendant trustee, or any which may be due or accrue hereafter be impounded; and that the defendant trustee and defendant motion picture companies and television users transmit the same to a receiver to be appointed by the Court for such purposes, or to pay the same directly into Court.' Forty-seven defendant California corporations, 24 corporate defendants doing business in California but organized elsewhere, and five partnerships were personally served in this state. Rosenbaum, being resident in New York, was served pursuant to court order by delivery of summons and complaint and motion papers within the State of New York. He has not appeared.
Plaintiffs immediately sought a preliminary injunction against defendant motion picture companies making any payments, then or thereafter payable, to defendant Rosenbaum...
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