Greenwood v. Mooradian

• Decision Date: 06 December 1955
• Citation: 290 P.2d 955,137 Cal.App.2d 532
• Court: California Court of Appeals Court of Appeals
• Parties: Allan D. GREENWOOD, Plaintiff and Appellant, v. Leon MOORADIAN et al., Defendants. R. Bruce Murchison, Defendant and Respondent. Allan D. GREENWOOD, Plaintiff and Appeallant, v. Leon MOORADIAN et al., Defendants. L. D. Ormsby et al., Defendants and Respondents. Civ. 20859, 20972.

Page 955

290 P.2d 955

137 Cal.App.2d 532

Allan D. GREENWOOD, Plaintiff and Appellant, v. Leon MOORADIAN et al., Defendants.

R. Bruce Murchison, Defendant and Respondent.

Allan D. GREENWOOD, Plaintiff and Appeallant, v. Leon MOORADIAN et al., Defendants.

L. D. Ormsby et al., Defendants and Respondents.

Civ. 20859, 20972.

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

Dec. 6, 1955.

Rehearings Denied Dec. 30, 1955.

Hearing Denied Feb. 1, 1956.

Vaughan & Brandlin and Robert P. Schifferman, Los Angeles, for appellant.

Bicknell J. Showers, W. I. Gilbert, Jr., and Jean Wunderlich, Los Angeles, for respondent R. Bruce Murchison.

D. Brandon Bernstein, Beverly Hills, for other respondents.

ASHBURN, Justice pro tem.

Plaintiff Allan D. Greenwood prosecutes two appeals from judgments in a single action. One of them (No. 20859) is taken from a judgment of nonsuit in favor of defendant R. Bruce Murchison, entered upon plaintiff's opening statement with respect to the fourth amended complaint. The other (No. 20972) challenges two judgments made upon sustaining demurrers to sixth amended complaint without leave to amend. ¹

Appeal from Judgment of Nonsuit.

The fourth amended complaint, upon which the case originally went to trial and which was before the court at the time of granting the Murchison nonsuit, alleged that plaintiff Greenwood, defendants Leon Mooradian, L. D. Reeder, Frank Mile, Leonard D. Ormsby, L. M. Fabricating Co. and others, entered into a joint venture agreement on October 29, 1951, which was partly written and partly oral, the object being to produce for Lockheed Aircraft Corporation a certain product under purchase orders and a basic agreement made with that corporation. Defendant Murchison is not alleged to have been a member of the venture. The written agreement was made 'between L. M. Fabricating Co. & Associates, First Party, and Reeder International & Associates, Second Party, as joint venturers and a joint venture to be known from date hereof as L. M. Engineering Company & Associates.' It was signed on behalf of L. M. Fabricating Co. & Associates by Leon Mooradian, as 'A managing Director'; and by L. D. Reeder as 'A managing Director' of Reeder International & Associates. But it is alleged that there was an oral understanding between the plaintiff and the defendants who were parties to the joint venture, that the written agreement was to be executed by defendant Reeder in the name of Reeder International & Associates on behalf of plaintiff, defendants Reeder, Ormsby and Mile, and that in fact the writing was so executed; that it was further orally understood between said parties that a fifty per cent interest in the joint venture, which under the written agreement was nominally vested in Reeder International & Associates, belonged to the last named persons in the following proportions: L. D. Ormsby, 22 per cent, Allan D. Greenwood, 13 per cent, L. D. Reeder, 13 per cent and Frank Mile, 2 per cent. It was also alleged that defendant Mooradian executed the written agreement in the name of L. M. Fabricating Co. & Associates on behalf of himself, defendant L. M. Fabricating Co. and other fictitiously named defendants; that the 50 per cent interest in the joint venture nominally vested in said L. M. Fabricating Co. & Associates actually belonged to said Mooradian, L. M. Fabricating Co. and certain fictitiously named defendants in proportions unknown to plaintiff. The complaint also avers that it was likewise orally and contemporaneously agreed that the new joint venture, L. M. Engineering Company & Associates, would employ plaintiff and Mooradian for the duration of the joint venture and would pay to each of them a salary of $2,000 per month, beginning September 15, 1951, and continuing until the termination of the venture, which salaries would be in addition to the respective joint venture shares of plaintiff and Mooradian, but that the salary checks would not be cashed until a certain guarantee, executed by defendant Ormsby to the bank to secure a loan made by the joint venture, should be discharged in full. A conspiracy is alleged, and that allegation includes the defendant Murchison, a respected member of the bar, whose protestations of falsity of the charge cannot be here considered, for this court is confronted with a question of law only and must accept the allegations of the complaint as true for the purposes of this appeal.

The averment is that 'the defendants herein have conspired together to appropriate to themselves and convert to their own use and benefit the assets and profits of the aforesaid joint venture, including the interest of the plaintiff therein, and have appropriated and converted the said assets and profits of the said joint venture in an amount unknown to the plaintiff, including the interest of the plaintiff therein;' that defendants caused defendant L. M. Engineering Co. & Associates, Inc. to be organized, the incorporators being Reeder, Mooradian and Murchison; 'that said defendants are in complete control of said defendant corporation and have formed same for the purpose of holding the assets and profits of the joint venture and defrauding plaintiff of his interest in said joint venture and to its assets;' that the defendants, other than L. M. Engineering Company & Associates, caused the Lockheed purchase orders and basic agreement to be cancelled, obtained new purchase orders and a new basic agreement in the name of L. M. Engineering Co. & Associates, Inc., and appropriated and converted to their own use all of the assets of the joint venture, having an approximate value of $200,000; that this was done on or about March 25, 1952; that defendants are now operating under the new purchase orders and basic agreement and appropriating to themselves the profits of the venture; that they have deprived and are depriving plaintiff of his interest in its assets and profits; that the new corporation is under the control of defendants, including the defendant Murchison. Plaintiff prays for a receiver, an injunction, and an accounting of the affairs of the joint venture and the respective interests and rights of plaintiff and defendants in the assets thereof; that defendants be required to pay plaintiff his accrued salary in the sum of $13,000; that the court declare the respective rights and duties of the parties in the joint venture and in the successor enterprise which has been set up by defendants, and that plaintiff have general relief. Defendant Murchison is not a party to the first cause of action and hence the discussion herein relates to the second count.

Plaintiff's attorney made an opening statement which was supplemented until he declared it to be complete.

The rules pertaining to a motion for nonsuit based upon an opening statement are set forth in Bias v. Reed, 169 Cal. 33, 37, 145 P. 516, 517: 'It is no doubt true, as is argued by the appellants, that the practice of directing a verdict, in advance of the introduction of evidence, upon the opening statement of one or the other party, is a dangerous one, and that an order granting such motion can be upheld only where it is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evident that the facts thus to be proved will not constitute a cause of action or a defense, as the case may be. * * * Where, however, these conditions are complied with, the court is authorized to accept the statements and admissions of counsel and to direct a verdict required by such statements or admissions. * * * [169 Cal. at page 38, 145 P. at page 518.] In reviewing an order directing a verdict on an opening statement, the appellate court must apply rules analogous to those which govern it in reviewing an order granting a nonsuit after the introduction of evidence. Every fact which counsel has stated as among the matters to be proved, together with all favorable inferences reasonably to be drawn therefrom, must be accepted by the court as facts which would have been proved if the case had been allowed to be tried.' See also Moffitt v. Ford Motor Co., 117 Cal.App. 247, 251, 3 P.2d 605; Witkin California Procedure, Vol. 2, sec. 128, p. 1860.

The opening statement developed into a lengthy argument in which the judge participated and counsel for plaintiff was put to the burden of justifying his pleading and enumerating wrongful acts done by defendant Murchison in furtherance of the alleged conspiracy.

The attack upon the complaint was centered upon the generality of the averment of conspiracy. It is above quoted and is sufficient to satisfy the controlling authorities. The argument is that acts constituting the conspiracy, as well as those inflicting a wrong pursuant thereto, must be alleged. The cases are to the contrary. In California Auto Court Ass'n v. Cohn, 98 Cal.App.2d 145, 219 P.2d 511, the allegation of fact of the conspiracy itself was no more detailed than the one at bar. At page 149 of 98 Cal.App.2d at page 514 of 219 P.2d, this division of this court rejected the claim of insufficiency of the allegation, saying: 'As to the necessity of interference by unlawful action, respondents contend the complaint contains a bare allegation of conspiracy and is therefore insufficient. The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design. The cause of action is the damage suffered. * * * The complaint contained allegations of acts of the respondents in detail and was not confined to a 'bare' allegation of conspiracy.' The last quoted language referred to acts alleged to have been done pursuant to the conspiracy and in effectuating an actionable wrong.

In Abbot Kinney Co. v. Harrah, 84 Cal.App.2d 728, 733, 191 P.2d 761, this court also held sufficient a similar allegation of conspiracy. Like rulings were made in ...