Colvig v. RKO General, Inc.

• Decision Date: 04 February 1965
• Citation: 42 Cal.Rptr. 473,232 Cal.App.2d 56
• Court: California Court of Appeals Court of Appeals
• Parties: Robert COLVIG, Plaintiff and Appellant, v. RKO GENERAL, INC., Defendant and Respondent. Civ. 21588.

Page 473

42 Cal.Rptr. 473

232 Cal.App.2d 56

Robert COLVIG, Plaintiff and Appellant, v. RKO GENERAL, INC., Defendant and Respondent.

Civ. 21588.

District Court of Appeal, First District, Division 1, California.

Feb. 4, 1965.

Rehearing Denied Feb. 24, 1965.

Hearing Denied March 31, 1965.

Jerome Berg, San Francisco, for appellant.

Youngman, Hungate & Leopold, Richard Hungate, David E. Lindgren, Los Angeles, for respondents.

MOLINARI, Justice.

This is an appeal from a judgment entered after the sustaining of a demurrer to the complaint without leave to amend.

The Record

The complaint, entitled 'Complaint For Damages For Intentional Tort,' names as defendants RKO General, Inc. (hereinafter sometimes referred to as RKO); Radio Station KFRC (hereinafter referred to as KFRC), and ten defendants sued under the fictitious names of Doe One to Doe Ten, and alleges: That plaintiff was on May 29, 1962 a third-party beneficiary to a contract between defendants RKO, KFRC and Does One to Four and the American Federation of Television and Radio Artists; that prior to said date plaintiff had been terminated from employment by defendants as a staff announcer at KFRC; that on said date defendants were ordered to restore plaintiff to such position by an arbitration award made pursuant to said contract; that the award 'recognized that plaintiff had 'a right to practice his profession there''; that defendants paid all salary due and thus complied with part of said award, but they 'tortiously failed and refused to broadcast plaintiff's voice over the radio waves'; that 'defendant's conduct was intended to and did deprive plaintiff of a personal right which had been fixed by that said award to practice his profession there'; and that as a 'proximate result of [said] * * * conduct, plaintiff has been damaged in his profession by not being able to be and remain known to the public as a radio announcer to his detriment' in the sum of $250,000.

Defendant RKO, alleging that it is the owner and operator of KFRC, demurred generally and specially to the complaint. The demurrer was sustained, without leave to amend, upon the following specific grounds urged in said demurrer, to wit: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that there is another action pending in said court between the same parties for the same cause; and (3) that in view of the fact that this action involves the same controversy which was the subject of the confirmation of an arbitration award in proceeding number 522575 of said court, the court did not have jurisdiction to hear the matter under Code of Civil Procedure, section 1292.6. ¹ A judgment of dismissal was thereupon ordered and entered, and this appeal ensued.

The Cause of Action

The preliminary question to be decided by us is whether the complaint states a cause of action, since the determination of the other two grounds of demurrer hinges upon the determination of this question. Looking at the complaint within the cinfines of its four corners we find it alleges essentially that pursuant to an arbitration award plaintiff was restored to his position as a staff announcer; that said award recognized that plaintiff had a right to practice his profession at KFRC; and that, while defendants paid plaintiff the salary due under said award, they intentionally and tortiously refused to permit him to practice his profession over the radio waves, thus causing him to lose his popularity as a radio announcer. While the complaint does not, on its face, disclose that the subject award was confirmed in action No. 522575 in the same court, the court below was entitled to take judicial notice of such other action since it was appropriately drawn to its attention. ² Courts take judicial notice of the public and private official acts of the judicial departments in this State where such acts are appropriately drawn to the attention of the court taking such notice. (Flores v. Arroyo, 56 Cal.2d 492, 496-497, 15 Cal.Rptr. 87, 364 P.2d 263; § 1875, subd. 3.) Accordingly, in considering the sufficiency of the complaint, the trial court was not restricted to the matters appearing on the face of the complaint, but was entitled to read into it all matters of which it took judicial notice. (Flores v. Arroyo, supra, pp. 496-497, 15 Cal.Rptr. 87, 364 P.2d 263; Weil v. Barthel, 45 Cal.2d 835, 837, 291 P.2d 30; American Distilling Co. v. Johnson, 132 Cal.App.2d 73, 77, 281 P.2d 598.) It is also well settled that where facts judicially noticed are contrary to those alleged in the complaint, the former must be regarded as true. (Chavez v. Times-Mirror Co., 185 Cal. 20, 23, 195 P. 666; American Distilling Co. v. Johnson, supra, 132 Cal.App.2d p. 77, 281 P.2d 598.) A reviewing court, furthermore, 'can properly take judicial notice of any matter of which the court of original jurisdiction may properly take notice.' (Varcoe v. Lee, 180 Cal. 338, 343, 181 P. 223, 225; People v. Stralla, 14 Cal.2d 617, 620, 96 P.2d 941; Ward Mfg. Co. v. Miley, 131 Cal.App.2d 603, 608-609, 281 P.2d 343.)

Turning to the pertinent portions of the subject arbitration award, which was confirmed and a judgment entered thereon in action No. 522575, ³ we ascertain the arbitrator found that under the collective bargaining agreement under consideration it was contemplated by the parties that plaintiff was entitled not only to pecuniary compensation, but also, as a highly paid professional man, to the opportunity to maintain and improve his professional skills by practicing them, and that he had 'a right to his position as a staff announcer at Radio Station KFRC, and a right to practice his profession there.' After the making of such finding, the arbitrator declared his decision that plaintiff be restored 'to his position of staff announcer for Radio Station KFRC' and that RKO 'continue to keep him in that position until the termination of the contract * * *.'

It should be here pointed out that a judgment confirming an arbitrator's award has the same force and effect, and is subject to all the provisions of law relating to a judgment in a civil action, and it may be enforced like any other judgment. (§ 1287.4.) It is also a fundamental legal concept that a judgment is a contract upon which the parties may maintain a separate action between themselves. (Miller v. Murphy, 186 Cal. 344, 347, 199 P. 525; Jones v. Union Oil Co. of California, 218 Cal. 775, 778, 25 P.2d 5; London G. & A. Co. v. Industrial Acc. Com., 181 Cal. 460, 465, 184 P. 864; Weaver v. San Francisco, 146 Cal. 728, 732, 81 P. 119; 28 Cal.Jur.2d, Judgments, § 2, p. 611; and see Schwartz v. California Claim Service, 52 Cal.App.2d 47, 54, 125 P.2d 883.)

The interpretation of a judgment, insofar as its meaning is concerned, is governed by the same rules which apply in ascertaining the meaning of any other writing. (Estate of Careaga, 61 A.C. 516, 520, 39 Cal.Rptr. 215, 393 P.2d 415; Los Angeles Local etc. Bd. of Culinary Workers and Bartenders, A. F. of L. v. Stan's Drive-Ins, Inc., 136 Cal.App.2d 89, 94, 288 P.2d 286.) It is the general rule that the language of a writing governs its interpretation, if the language is clear and explicit, and does not involve an absurdity. (Estate of Careaga, supra, 61 A.C. p. 520, 39 Cal.Rptr. 215, 393 P.2d 415; Civ. Code, § 1638.) We are satisfied that in the instant case no ambiguity exists in the judgment and that the clear and explicit meaning of the judgment confirming the arbitration award is that plaintiff was not only entitled to be restored to his position at the remuneration provided therefor, but that he was also to be restored to the duties and functions of the position of staff announcer. Any breach or infringement of the rights established by a judgment gives rise, under applicable legal principles, to a cause of action. The essence of a cause of action is the existence of a primary right and one violation of that right, i. e., it arises out of an antecedent primary right and corresponding duty, and a breach of such primary right and duty by the person upon whom the duty rests. (Shell v. Schmidt, 126 Cal.App.2d 279, 291, 272 P.2d 82; Smith v. Minnesota Mut. Life Ins. Co., 86 Cal.App.2d 581, 590, 195 P.2d 457; Stryker v. Republic Pictures Corp., 108 Cal.App.2d 191, 195, 238 P.2d 670; Frost v. Witter, 132 Cal. 421, 426, 64 P. 705; Work v. County Nat. Bank etc. Co., 4 Cal.2d 532, 540, 51 P.2d 90; Wulfjen v. Dolton, 24 Cal.2d 891, 895, 151 P.2d 846.) The primary right and duty and the delict or wrong constitute the cause of action in the legal sense. (South Shore Land Co. v. Petersen, 226 A.C.A. 905, 919, 38 Cal.Rptr. 392; Smith v. Minnesota Mut. Life Ins. Co., supra, 86 Cal.App.2d p. 590, 195 P.2d 457.) 'The cause of action is simply the obligation sought to be enforced.' (Panos v. Great Western Packing Co., 21 Cal.2d 636, 638, 134 P.2d 242, 244; Eichler Homes of San Mateo, Inc. v. Superior Court, 55 Cal.2d 845, 847, 13 Cal.Rptr. 194, 361 P.2d 914.) All that is necessary as against a general demurrer is that, upon a consideration of all the facts stated, it appears the plaintiff is entitled to any relief at the hands of the court against the defendant, notwithstanding the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown or although the plaintiff may demand relief to which he is not entitled under the facts alleged. (Gressley v. Williams, 193 Cal.App.2d 636, 639, 14 Cal.Rptr. 496.)

We are of the opinion that in the light of these principles the complaint in the instant case states a cause of action. It alleges a primary right in plaintiff that he be restored to his position of staff announcer and that he be permitted to practice his profession as such announcer, and a breach or infringement of that right by defendant. Although we have found no California case specifically holding that facts such as are alleged in the instant...