Lewis v. Steifel

• Citation: 98 Cal.App.2d 648,220 P.2d 769
• Court: California Court of Appeals
• Decision Date: 26 July 1950
• Parties: LEWIS v. STEIFEL et al. Civ. 17435.

Page 769

220 P.2d 769

98 Cal.App.2d 648

LEWIS v. STEIFEL et al.

Civ. 17435.

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

July 26, 1950.

Hearing Denied Sept. 21, 1950.

Harry E. Sokolov, Hollywood, for appellant.

Bautzer & Silbert, Beverly Hills, and Bertin A. Weyl, Los Angeles, for respondents.

SHINN, Presiding Justice.

Plaintiff appeals from an order discharging an attachment levied against property of both defendants pursuant to a writ in the sum of $26,000 issued at the time the complaint was filed.

In the first amended complaint, plaintiff alleges that on or about the first of November, 1948, defendants entered into an oral contract with him, whereby he was to render services as a motion picture production manager in connection with three motion pictures to be produced by defendants during the year beginning November 1, 1948, and ending November 1, 1946; defendants informed him that the production of these pictures would take approximately one year, and that he was to receive, for his services, the sum of $500 per week; his services were to commence on the day following the formation of the contract and his salary was to accrue from that date but was to be payable at the time defendants went into production of the first of the three pictures. Plaintiff alleges he accepted the employment and rendered services for the defendants until early in February, 1949, when he was informed by them that their plans had been changed and that they would have to release the three proposed motion pictures through United Artists Corporation rather than through RKO Studios; that as a result of this change they would have to employ another production manager and that plaintiff's services were no longer required. Plaintiff alleges that he has been at all times ready, willing and able to perform and that he has been damaged in the sum of $26,000 because of the breach of contract by defendants.

Defendants made a motion to discharge and vacate the attachment, the matter came on for hearing and on May 5, 1949, the court made its order discharging the attachment on the ground that plaintiff's claim was not one for the direct payment of money (Code Civ.Proc., sec. 537(1)), but was for damages for breach of contract and that such damages were unascertainable, speculative and uncertain; and on the ground that the attachment for the sum of $26,000 was excessive.

Plaintiff contends, on this appeal, that his claim comes within the rule that an attachment will lie upon a cause of action for damages for breach of contract where the damages are readily ascertainable by reference to the contract and where the basis of the computation of damages appears to be reasonable and definite. We are of the opinion that this point is well taken.

Section 537, Code of Civil Procedure provides that 'The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment, as in this chapter provided, in the following cases: 1. * * * In an action upon a contract, express or implied, for the direct payment of money, where the contract is made or is payable in this State, and is not secured by any mortgage, deed of trust or lien upon real or personal property, or any pledge of personal property * * *.' (Emphasis added.) Plaintiff's affidavit shows that the contract was ...