Atkinson v. Superior Court In and For Los Angeles County

• Decision Date: 05 November 1957
• Citation: 49 Cal.2d 338,316 P.2d 960
• Court: California Supreme Court
• Parties: , 41 L.R.R.M. (BNA) 2151, 33 Lab.Cas. P 71,065 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. American Federation of Musicians, Columbia Broadcasting System, et al., and Loews Incorporated, Republic Pictures, et al., Real Parties in Interest. 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. American Federation of Musicians. Columbia Broadcasting System, et al., and Loews Incorporated, Republic Pictures, et al., Real Parties in Interest. L. A. 24620, L. A. 24630

Page 960

316 P.2d 960

49 Cal.2d 338, 41 L.R.R.M. (BNA) 2151, 33 Lab.Cas. P 71,065

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.

American Federation of Musicians, Columbia Broadcasting System, et al., and Loews Incorporated, Republic Pictures, et al., Real Parties in Interest.

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.

American Federation of Musicians. Columbia Broadcasting System, et al., and Loews Incorporated, Republic Pictures, et al., Real Parties in Interest.

L. A. 24620, L. A. 24630.

Nov. 5, 1957.

John W. Preston, Los Angeles, Harold A. Fendler and Daniel A. Weber, Beverly Hills, for petitioners.

No appearance for respondent.

Bodkin, Breslin & Luddy, Los Angeles, Henry Kaiser, Washington, D. C., Emanuel L. Gordon, New York City, Michael G. Luddy, O'Melveny & Myers, Homer I. Mitchell, Charles G. Bakaly, Jr., Mitchell, Silberberg & Knupp, Guy Knupp, Loeb & Loeb, Alfred I. Rothman and Averill C. Pasarow, Los Angeles, for real parties in interest.

TRAYNOR, Justice.

Separate class actions were brought by two groups of musicians attacking the validity of collective bargaining contracts between their employers and the American Federation of Musicians and certain trust agreements related thereto. One action is on behalf of the employees of various motion picture companies and the other is on behalf of the employees of various phonograph record companies. The gist of plaintiffs' complaints is that in violation of its duty as their collective bargaining agent and in fraud of their rights the Federation contracted with the employers that certain royalty payments and payments for reuse of motion pictures on television should be paid to a trustee for specified trust purposes instead of to the employees.

Plaintiffs allege that these payments constitute wages earned by the employees and that their diversion to the trust is violative of their rights; that the purpose of the trust is to contribute to the public knowledge and appreciation of music throughout the United States and Canada, and the trustee is authorized and directed to expend the trust funds in presenting personal performances by instrumental musicians to which the public is admitted without charge; that the trust arrangement diverts wages earned by California employees, members of Local No. 47, for the benefit of Federation members elsewhere without corresponding benefit to plaintiffs from the operation of similar arrangements made elsewhere; that the employers are willing to make the payments to their employees, but for their agreements with the Federation to make the payments to the trustee; and that the national executive officers of the Federation insisted on this arrangement for the selfish purpose of perpetuation themselves in office and of maintaining their hold and control over the affairs of the Federation and used the trust fund to win the support of officials of the Federation's locals and member muscians throughout the United States and Canada, who vastly outnumber plaintiffs and are not employed by the employers here involved.

In each action, the Federation, the trustee, and the respective employers are named as defendants. Plaintiffs seek a declaration of the invalidity of the collective bargaining agreement and their right to the payments either as beneficiaries of a constructive trust or on the ground that the payments constitute wages withheld in violation of sections 222 and 224 of the Labor Code. They also seek damages against the Federation for breach of its duty to them. At the commencement of the actions they moved for the appointment of a receiver to collect the payments and preliminary injunctions to prevent the employers from making the payments to the trustee. The employers have been personally served with process in this state, and personal jurisdiction has been obtained over the Federation. The trustee was served pursuant to court order by delivery of summonses and complaints and motion papers within the State of New York, but he has not appeared.

The trial court held that insofar as plaintiffs sought to intercept the delivery of payments to the trustee by the appointment of a receiver and temporary injunctions, the trustee was an indispensable party and that the court had no jurisdiction to grant plaintiffs' motions for provisional relief without personal jurisdiction over the trustee. It was careful to point out that its ruling was based solely on lack of jurisdiction and stated that 'if the court had jurisdiction to do so, the exercise of a sound discretion would probably require the granting of a preliminary injunction and perhaps the appointment of a receiver. * * *'

Some of the plaintiffs in each of the actions then filed their petitions for writs of mandate in the District Court of Appeal, Second Appellate District. The Second Division of that court issued alternative writs of mandate and after a hearing filed its decision in each case 'commanding respondent superior court to assume and exercise jurisdiction over petitioners' application for preliminary injunction and appointment of receiver as prayed herein.' Petitions for hearing by the real parties in interest, the defendant employers and Federation, were then granted by this court.

The writ of mandate is an appropriate remedy unless an appeal from each order denying the motion for a preliminary injunction constitutes 'a plain, speedy, and adequate remedy.' Code Civ.Proc. § 1086; Financial Indem. Co. v. Superior Court, 45 Cal.2d 395, 399, 289 P.2d 233. Petitioners alleged in their petitions before the District Court that the remedy by appeal was not adequate because of the necessity of prompt action to prevent further movement of funds out of the jurisdiction of the superior court. Since no purpose but delay would be served at this time by reviewing the District Court's decision that the remedy by appeal was inadequate, was accept it for the purposes of these proceedings. Bowles v. Superior Court, 44 Cal.2d 574, 582, 283 P.2d 704.

We have concluded that personal service upon the trustee in New York was sufficient to give the court jurisdiction to adjudicate his right to receive payments under the contracts here involved. Code of Civil Procedure section 412 provides: 'Where the person on whom service is to be made resides out of the State * * * and it * * * appears * * * that it is an action which relates to or the subject of which is real or personal property in this State, in which such person defendant * * * has or claims a lien or interest, actual or contingent, therein, or in which the relief demanded consist wholly or in part in excluding such person * * * from any interest statutory provisions. Code Civ.Proc. § 17(3). make an order that the service be made by the publication of the summons.' Section 413 provides that personal service outside the state is equivalent to publication. Plaintiffs claim that the employers' obligation to make the payments involved is one owing to them instead of to the trustee. That obligation is a chose in action and is therefore personal property within the meaning of the statutory provisions. Code Civ.Proc. § 17 Being an intangible, it has no situs in fact. 'An intangible, unlike real or tangible personal property, has no physical characteristics that would serve as a basis for assigning it to a particular locality. The location assigned to it depends on what action is to be taken with reference to it.' In re Estate of Waits, 23 Cal.2d 676, 680, 146 P.2d 5, 8. The question presented, therefore, is whether the chose in action in question may be treated as being within this state within the meaning of section 412 for purposes of exercising in rem or quasi in rem jurisdiction over it in these actions.

Plaintiffs rely on cases holding that having jurisdiction over the obligor, the state has power to enforce the obligation and cut off the right, if any, of a nonresident claimant thereto without personal jurisdiction over the nonresident. Garnishment proceedings (Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023) and escheat proceedings (Standard Oil Co. v. State of New Jersey, 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078; Security Savings Bank v. People of State of Californiz, 263 U.S. 282, 44 S.Ct. 108, 68 L.Ed. 301) are examples of the exercise of such power. Defendants contend, however, that in the case of ordinary choses in action such power is limited to situations in which the local claimant admits the validity of the local debtor's obligation to the nonresident and seeks to reach the interest he admits is the property of the nonresident. They point out that in the present case plaintiffs are not seeking to reach property admittedly belonging to the trustee but are claiming that the obligation is owed only to them. Defendants rely on cases holding that the debtor cannot treat his own obligation as property where he is, when his purpose is to terminate a nonresdent's claim against him (Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456; Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561), and they contend that the rule is the same when the debtor seeks to interplead both a local and a nonresident claimant. New York Life Ins. Co. v. Dunlevy, 241 U.S. 518, 36 S.Ct. 613, 60 L.Ed. 1140. In their view it is immaterial in an action to adjudicate conflicting claims to an obligation, whether the action is commenced by the obligor, where...