Loew's Inc. v. Superior Court of Cal. in and for County of Los Angeles

• Decision Date: 05 September 1956
• Citation: 301 P.2d 64
• Court: California Court of Appeals Court of Appeals
• Parties: LOEW'S Incorporated, a corporation, Petitioner, v. The SUPERIOR COURT of the State of California, in and For the COUNTY OF LOS ANGELES, Respondent.* Civ. 21851.

Page 64

301 P.2d 64

LOEW'S Incorporated, a corporation, Petitioner, v. The SUPERIOR COURT of the State of California, in and For the COUNTY OF LOS ANGELES, Respondent.*

Civ. 21851.

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

Sept. 5, 1956.

Hearing Granted Oct. 31, 1956.

Opinion, 300 P.2d 63, vacated.

Loeb & Loeb, John L. Cole, Alfred I. Rothman, Laurence M. Weinberg, Los Angeles, for petitioner.

Hugo A. Steinmeyer, Robert H. Fabian, W. H. Taylor, Jr., Los Angeles, for real party in interest, Bank of America Nat. Trust & Savings Ass'n.

WHITE, Presiding Justice.

Petitioner, Loew's Incorporated, seeks a writ of mandate requiring the Superior Court of Los Angeles County to set aside and vacate its order of June 6, 1956, '* * * that the motion of plaintiff (Bank of America) for a stay of injunction pending appeal be granted and that the operation and effect of that certain judgment heretofore entered in the above-entitled action on the 4th of April 1956 in Book 3070 at page 292 of Judgments in the Office of the County Clerk of Los Angeles County, California, be stayed pending the final determination of the appeal therefrom and 30 days thereafter and that the status quo shall be preserved during that period.'

The petition seeking to prohibit the making of that order was filed herein on June 6, and on June 8 after the making of said order a supplementary petition seeking mandate in lieu of prohibition was filed.

The judgment so 'stayed' was made in an action commenced by the Bank of America to quiet its title to certain personal property, and provides as follows:

'It Is Ordered, Adjudged and Decreed:

'1. Except as hereinafter otherwise specified in paragraphs 3 to 8, both inclusive, plaintiff, Bank of America National Trust and Savings Association, a national banking association, is the owner of the following described personal property, free and clear of all claims and demands whatsoever;

'All properties of every kind and character relating to the feature-length motion picture photoplay entitled 'Mr. Peabody and the Mermaid', hereinafter in this paragraph 1 called the 'Picture', based upon a story by Guy Jones and Constance Jones and a screenplay by Nunnally Johnson, having as principal players William Powell and Ann Blyth, and which was produced by Inter-John, Incorporated, including, but without limiting the foregoing general language, the following:

'(a) All of the literary, musical dramatic and other material upon which * * *

'(b) All physical properties of the picture * * *

'(c) To the extent necessary to complete the picture, all assignable rights * * *

'(d) All insurance * * *

'(e) All copyrights * * *

'(f) The right to exploit * * *

'(g) All rent, revenue, income, compensation and profits * * *

'2. * * *

'3. Plaintiff may not advertise or announce William Powell's name in general advertising or publicity * * *

'4. Plaintiff may not use William Powell's name or likeness in or in connection with any so-called 'commercial tie-ups' * * * '5. Plaintiff may not cause or permit to be made or issued 16mm. or other non-standard prints of said motion picture except * * *

'6. Plaintiff shall give credit to William Powell as a star or co-star on all positive prints * * *

'7. Plaintiff may not double or 'dub' (as that term is understood in the motion picture industry) any of William Powell's acts, poses, plays or appearances, or his voice, either in English or in any foreign language or languages, unless * * *

'8. Plaintiff, its successors and assigns, are hereby enjoined, for the benefit of Loew's, its successors and assigns, from doing any act prohibited by any of the provisions of the foregoing paragraphs 3 to 7, both inclusive, and are ordered and directed, for the benefit of Loew's, its successors and assigns, to perform and observe the provisions of said paragraphs 3 to 7, both inclusive * * *

'9. * * *

'10. Except for and subject to the rights of Loew's arising out of the provisions of paragraphs 3 to 8, both inclusive, Loew's, and all persons claiming by, through or under it, are hereby perpetually enjoined and restrained from asserting any claim or demand whatsoever in, to or on the rights and properties described in paragraph 1, or any part thereof, or the proceeds derived therefrom, adverse to plaintiff.'

In said quiet title action, trial upon the merits was completed, and the facts contained in the following summary were found true.

On and after January 20, 1948, Inter-John, Incorporated, a corporation, borrowed money from the Bank and gave a promissory note therefor, secured by a chattel mortgage upon the properties described in the judgment. Inter-John failed to pay off a portion of the loan and, pursuant to the chattel mortgage, the properties were sold at public sale and purchased by the Bank, which then commenced the instant action to quiet its title to said properties.

Inter-John's ownership of the properties so mortgaged by it and sold to the Bank was subject to the terms of a 'loan-out agreement' between Loew's and Universal, and written instruments executed by Loew's, Universal and Inter-John in 1947. Under said contracts Inter-John had no right to do any of the things covered by the injunctive provisions of the judgment hereinbefore set forth.

From 1934 until 1953 Loew's and its predecessor, Metro-Goldwyn Mayer Corporation, had a contract with William Powell for all his services and were the owners of all the results and proceeds thereof. Large sums of money had been invested by them in building and maintaining his reputation and the value of the pictures in which he appears.

'The restrictive provisions * * * were included in the loan-out agreement for the purpose of protecting Loew's property rights in the services and performances of William Powell and in the results and proceeds thereof and for the purpose of protecting Loew's investment in Motion Pictures produced and to be produced by it in which William Powell appears.'

Loew's had no knowledge of Inter-John's dealings with the Bank, but the Bank's representative knew of the loan-out agreement and the restrictions for the protection of Loew's investment therein contained.

Proposed findings, conclusions and judgment were served by mail on March 20, 1956 and dated and signed March 30, 1956, and the judgment was entered April 4, 1956. On or about April 6, 1956, petitioner duly served and filed notice of entry of said judgment.

The Bank's motion for a new trial was duly heard, considered and denied by order made and entered May 9, 1956. On May 22nd the Bank filed its notice of motion for reconsideration of order denying new trial, and on May 29, 1956, so moved.

Contemporaneously with its notice and motion for reconsideration of order denying plaintiff's motion for new trial, the Bank filed a notice of motion for 'Stay of Injunction Pending Appeal', and so moved.

A minute order was made June 4 and entered June 7, 1956, reading as follows: 'Motion for reconsideration of order denying plaintiff's motion of new trial denied. Motion for stay of injunction pending appeal granted'.

On June 6, 1956, the court made the order first hereinbefore quoted that the Bank's motion 'for a stay of injunction pending appeal be granted', which order is sought to be vacated by this proceeding. On the same day the Bank appealed from the judgment. The real effect of the order is to modify the judgment so as to grant an injunction effective 30 days after the final determination of the appeal from the judgment, instead of the injunction included in the judgment effective from the date of the judgment. Said order of June 6 is 'a special order after final judgment' and is 'appealable regardless of whether it is void and regardless of whether it is provided for by any of the prescribed methods of procedure'. Phelan v. Superior Court, 35 Cal.2d 363, 370, 217 P.2d 951.

The Phelan case, supra, is not authority for the Bank's statement that an appeal furnishes a plain, speedy and adequate remedy in lieu of the relief sought by the instant proceeding. In the Phelan case, the order, made after a final judgment for money, reduced the amount of money. The order, from the consequences of which petitioner seeks relief in the instant proceeding, is in effect an order that--although the Bank has no right to do certain things as already adjudged after a complete trial upon the merits--the Bank shall, nevertheless, not be restrained from doing those things until 30 days after the judgment shall have become final. Under the facts of the instant action, an appeal from the order 'staying * * * the operation and effect of' the judgment could not preserve petitioner's rights under the judgment; and, in the event the judgment in favor of petitioner should be affirmed on appeal, the acts prohibited by the judgment might already have been done, so that, even if the Bank loses its appeal, the judgment could accomplish nothing except to quiet the Bank's title to the moving picture properties without regard to the limitations subject to which the Bank acquired the properties.

The Bank, in its answer, urges that '* * * respondent superior court, having exercised its discretion to issue the order staying the injunctive provisions of the judgment, its act is not reviewable on mandamus', and in that regard cites the following cases: Hilmer v. Superior Court, 220 Cal. 71, 73, 29 P.2d 175; Lincoln v. Superior Court, 22 Cal.2d 304, 313, 139 P.2d 13; O'Bryan v. Superior Court, 18 Cal.2d 490, 496, 116 P.2d 49, 136 A.L.R. 595; Bauer v. Superior Court, 208 Cal. 193, 198, 281 P. 61; Kerr v. Superior Court, 130 Cal. 183, 185, 62 P. 479; People ex rel. Gesford v. Superior Court, 114 Cal. 466, 471, 46 P. 383; Friedland v. Superior Court, 67 Cal.App.2d 619, 623, 155 P.2d 90; Parker v. Superior Court, 16 Cal.App.2d 580, 583, 60 P.2d 1021; Greene v. Superior Court, 133 Cal.App. 35, 38, 23 P.2d 785.

An examination of these cases discloses that many...