Hagan v. Fairfield

• Decision Date: 18 November 1965
• Court: California Court of Appeals Court of Appeals
• Parties: Evert L. HAGAN, Plaintiff and Appellant, v. Joseph W. FAIRFIELD, Defendant and Respondent. Civ. 27922.

Page 600

47 Cal.Rptr. 600

238 Cal.App.2d 197

Evert L. HAGAN, Plaintiff and Appellant, v. Joseph W. FAIRFIELD, Defendant and Respondent.

Civ. 27922.

District Court of Appeal, Second District, Division 3, California.

Nov. 18, 1965.

Rehearing Denied Dec. 9, 1965.

Jesse A. Hamilton, Los Angeles, for appellant.

Joseph W. Fairfield, Beverly Hills, Ethelyn F. Black and Max H. Gewirtz, Los Angeles, for respondent.

FORD, Justice.

This is an appeal from a judgment entered after the respondent Fairfield's demurrer to the second amended complaint had been sustained without leave to amend.

The pertinent portions of the three causes of action alleged in the second amended complaint will be stated. In the first cause of action it was alleged that: 1. Joseph W. Fairfield is an attorney licensed to practice in all of the courts of the State of California. 2. In the years 1962 and 1963 the plaintiff Evert L. Hagan, in his personal capacity and as majority shareholder in Benedict Heights, Inc., a corporation, was maintaining and prosecuting a series of legal actions against the defendant Fairfield and other persons for the purpose of securing the return to the corporation of property claimed to have been taken from it. 3. The plaintiff Hagan hired Michael M. Pontecore (named as a defendant) as his agent, servant and employee to perform investigative work for him with respect to such actions and the relationship between them 'was one of trust, confidence and secrecy relating to said litigation and to negotiations hereinafter mentioned.' 4. The plaintiff Hagan, in his personal capacity, was engaged in various real estate transactions and had been negotiating with Joseph C. Whitman (named as a defendant) and Jack Sylvester for the purchase of certain real property 'interests' in the Benedict Canyon area of Los Angeles County. 5. On April 12, 1963, the plaintiff Hagan wrote a 'highly confidential letter to Jack Sylvester, setting forth certain facts, offers and conditions to said Sylvester, with whom he was then negotiating as set forth above, and that one and only one copy of said letter was made for plaintiff's own use.' 6. In the course of his employment the defendant Pontecore asked the plaintiff Hagan for the carbon copy of the letter and the plaintiff Hagan loaned and delivered to the defendant Pontecore that copy; the defendant Pontecore promised to return the copy to the plaintiff upon demand and to keep the contents thereof 'confidential to himself and for his own direction in the course of his employment.' 7. The carbon copy of the letter was the personal property of the plaintiff and was of 'a value which cannot be assessed at this time, but will be proven at the time of trial of this action.' 8. The defendant Fairfield 'knew well the confidential position, knowledge and authority of defendant Pontecore, and that defendants Fairfield and Pontecore, intending and contriving to cheat and defraud plaintiff, did, on or about May 1, 1963, corruptly and fraudulently conspire among themselves, that said Pontecore should impart to defendant Fairfield knowledge of the doings and strategy of plaintiff in the prosecution of the lawsuits hereinafter and hereinabove set forth and of the aforesaid negotiations for the purchase of the property in Benedict Canyon.' 9. 'Plaintiff is informed and believes, and alleges upon that information and belief, that in consequence of and pursuant to said corrupt and fraudulent conspiracy and agreement, defendant Pontecore did impart to defendant Fairfield said knowledge, and that plaintiff had written said letter to said Sylvester, describing certain facts, contentions, offers and conditions, and that defendant Pontecore did deliver or cause to be delivered, said copy of said letter to the defendant Fairfield.' 10. Pursuant to the conspiracy and without the plaintiff's consent the defendant Fairfield disclosed the contents of the letter by attaching a photocopy thereof to certain pleadings in an action between the plaintiff and the defendant Fairfield then pending in the superior court and 'used it for the purported means of showing alleged bad faith and alleged illegal intent of plaintiff, contending that said letter showed bad faith throughout the prosecution of the various court actions referred to above, causing plaintiff mental pain and humiliation and affecting his name injuriously. All of the acts set forth above were done for the sole and only purpose of obstructing a hearing on the merits of the matters then pending in the said courts and were, in fact, committed in a conspiracy to obstruct justice, to plaintiff's damage in the sum of $25,000.00.'

The second cause of action was similar in nature to the first cause of action except that it related to a covenant not to sue. Portions of the allegations of that cause of action were as follows: 1. During the preceding three months the plaintiff Hagan, through the defendant Pontecore as his agent and employee, had been negotiating with the defendant Joseph C. Whitman for the purchase of all of the latter's interest in a corporation. 2. On April 1, 1963, at the request of the defendant Whitman the plaintiff Hagan signed a covenant not to sue Whitman and delivered the document to the defendant Pontecore who was authorized and instructed to deliver it to the defendant Whitman in exchange for an assignment and transfer of the designated interests. The defendant Pontecore represented to the plaintiff Hagan that the defendant Whitman would make such exchange. 3. In violation of his authority and of the plaintiff's instructions, the defendant Pontecore delivered the covenant not to sue to the defendant Whitman without receiving the contemplated transfer and assignment and without consideration. 4. The defendants Pontecore and Whitman 'combined and conspired to cheat and defraud plaintiff in said transaction' and the defendant Whitman has refused to return to the plaintiff the covenant not to sue. 5. Thereafter the defendants Pontecore and Whitman, without the plaintiff's consent, delivered or caused to be delivered that covenant to the defendant Fairfield 'in consequence of and pursuant to the aforesaid corrupt and fraudulent conspiracy and agreement, and thereupon Fairfield disclosed the contents of said covenant by attaching a photo copy thereto [sic] to a pleading in an action, then pending between plaintiff and defendant Fairfield, and used it for the purported means of showing bad faith and alleged illegal intent on the part of plaintiff, contending that it showed bad faith throughout the prosecution of the various court...