Show Management v. Hearst Pub. Co.
| Decision Date | 01 November 1961 |
| Citation | 196 Cal.App.2d 606,16 Cal.Rptr. 731 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SHOW MANAGEMENT, a California Corporation, Plaintiff and Appellant, v. HEARST PUBLISHING CO., Inc., et al., Defendants, Hearst Publishing Co., Inc., and Franklin S. Payne, Respondents. Civ. 25003. |
Robert E. Benton, Los Angeles, and Austin Clapp, Woodside, for appellant.
Flint & MacKay and Edward L. Compton, Los Angeles, for respondents.
This is an appeal from a judgment entered after the plaintiff failed to amend pursuant to the leave granted to it by the court when a general demurrer to its amended and supplemental complaint was sustained. (Code Civ.Proc. § 581.)
The gist of the plaintiff's pleading will be stated. It is alleged that the plaintiff and the defendants are in the business of organizing and producing trade expositions. H. Werner Buch, at first as the partner of another person and later as an employee of the plaintiff corporation, organized and produced an exposition under the name of the Los Angeles Sportsmen's Vacation, Boat and Trailer Show annually from 1946 to 1959, inclusive; exhibitors included manufacturers and distributors of sporting goods, boats, motors and accessories as well as operators of private resorts and 'States, Counties and other governmental units'; in 1959 there were more than 250 such exhibitors who contracted with the plaintiff for exhibit space. In California and elsewhere in the United States a substantial number of persons, firms and corporations are engaged in the business of producing such trade expositions; there is competition public patronage. contracts with exhibitors and securing public patronage.
It is further alleged that prior to the termination of the plaintiff's exposition in 1959, the time for the plaintiff's exposition in 1960 had been determined to be the period of March 31 to April 10, inclusive; 'some exhibitors had already entered into contracts for exhibit space in the Plaintiff's 1960 exposition, and others had signified their intention to enter into such contracts.'
The pleader states that defendant Tabery 'formulates, directs and controls the acts and practices' of defendant corporations The Tabery Corporation and Showmanship, Inc. The defendant Payne is an employee of the defendant Hearst Publishing Co., Inc., which is the publisher of the Los Angeles Examiner. 'Prior to June 15, 1959, Defendants desired to organize and produce a trade exposition in the City of Los Angeles during the period March 11-20, 1960, to be conducted in substantially the same manner as Plaintiff's past and projected expositions as hereinabove described and to include therein, as exhibitors, persons, firms, corporations and governmental bodies in the same trade categories and advocating the same vacation possibilities as have been and will be included in Plaintiff's 1960 exposition'; the defendants Tabery and Hearst Publishing Co., Inc., 'agreed with each other jointly to organize and produce such exposition and to share the profits or losses thereof, and * * * that the enterprise would be carried out by and through the Defendant Showmanship, Inc., * * * [and] that said exposition would be conducted under the fictitious name of 'International Sports and Vacation Show' * * * from March 11-20, 1960, both dates inclusive, in the City of Los Angeles.'
Further allegations are that the defendants represented to the Governor of the State of California that such show was sponsored by the Los Angeles Examiner and was in the nature of a civic event or enterprise, and that they requested the Governor to issue a proclamation declaring the period of the show to be International Sports and Vacation Week and inviting participation in, and attendance at, such show. The Governor was not informed of certain facts known to the defendants; one of such facts was that the show 'was a purely private venture, the profits of which, if any, were to be divided between Defendants.' The representation that the show was in the nature of a civic event or enterprise was false and so known to be by the defendants. The Governor believed and relied on such representations and on or about June 15, 1959, issued a proclamation of the kind requested.
It is also alleged that the defendants represented to other persons, named in the complaint, each of whom held a public office or was an officer of a private organization, that such show was of a civic nature, and requested such persons to permit the use of their respective names and titles in a list of members of an 'Honorary Committee.'
Thereafter the defendants prepared and distributed a printed brochure containing pictures of the Governor and the members of the committee and a photographic reproduction of the proclamation; therein were also statements soliciting participation by exhibitors and describing available space and services and the cost of licenses to use such space. The defendant Tabery and his employee had photographs taken depicting them, or one of them, with governors of other states 'under the false and misleading representations to said governors of other states that they were the 'special emissaries' of the Governor of the State of California'; they caused such pictures to be published in newspapers and other advertising media distributed to the public; they 'have continued to publicize themselves as 'special emissaries' of the Governor of this State' although they have been advised by a member of the Governor's staff to cease such conduct.
It is further alleged that the defendants 'intended to create the impression in the minds of prospective exhibitors in Plaintiff's and Defendants' respective 1960 shows, and in the minds of members of the general public who would be expected to pay admission to attend Plaintiff's and Defendants' 1960 shows, that Defendants' 1960 show' was a civic rather than a commercial enterprise and that it was endorsed by public officials and persons of prominence and was also endorsed by 'a newspaper for its unique and beneficial characteristics after an independent and personal evaluation of its merits by the editorial and news staff of the newspaper'; thereby the defendants intended to secure for their show 'an undue preference over Plaintiff's 1960 show'; they 'further intended by the creation of such impression' to cause exhibitors to contract with them for space in their 1960 show and not to contract with the plaintiff for space in its 1960 show as well as to cause exhibitors who had contracted for space in the plaintiff's 1960 show to cancel their contracts with the plaintiff in whole or in part and to contract 'solely or partially' defendants also intended by the creation of such impression to cause the general public to patronize the defendants' show in preference to that of the plaintiff. A further allegation is that the defendant Hearst Publishing Co., Inc., 'has engaged and intends to continue to engage in unfair and deceptive acts and practices and unfair methods of competition' in the concealment from 'its reading public' of the fact of its financial interest in the proceeds of the show.
The complaint contains allegations as to the use of a list of the plaintiff's exhibitors. It is alleged that 'the names of the persons, firms and organizations who have been exhibitors in Plaintiff's exposition, and particularly the names of the persons in such firms and organizations who were directly charged with negotiations with respect to entering into contracts for the purchase of exhibit space, was and is confidential information belonging to the Plaintiff, and belonging to the Plaintiff, and gathered by Plaintiff at great cost and expense, and close and friendly relationships exist between Plaintiff and its employees, and with such persons, firms and organizations.' Prior to and during the plaintiff's 1959 exposition, the plaintiff imparted to the defendants Hearst Publishing Co., Inc., and Payne such 'confidential information at their request and for their benefit solely for the purpose of permitting said Defendants to solicit advertising for the Los Angeles Examiner from such persons, firms and organizations, and from the time of imparting said information for the said purpose, and at all times since then, Plaintiff reposed trust and confidence in said Defendants that said information would be used for the purpose intended and not otherwise, and the said Defendants accepted the said trust.' '[S]ubsequent to the formation of said agreement between Defendants, and in violation of the trust and confidence reposed in them,' defendants Hearst Publishing Co., Inc., and Payne disclosed such confidential information to defendants Tabery, The Tabery Corporation, and Showmanship, Inc., and since such disclosure the defendants have used the information 'to solicit exhibitors for their show, and to induce such of said exhibitors as had entered into contracts with Plaintiff for exhibit space in its 1960 exposition, to break their contracts with Plaintiff and to exhibit in said Defendants' show instead.'
As a result of the acts and conduct of the defendants, it is alleged, some of the plaintiff's exhibitors 'have substantially reduced the amount of exhibit space previously contracted for, and others have advised Plaintiff that they intend to contract with Defendants for exhibit space in said Defendants' show rather than with Plaintiff for its exposition.'
The plaintiff alleges that, unless enjoined and restrained, the defendants intend to continue their conduct. It is further alleged that there is a conspiracy on the part of the defendants 'to combine their capital and skill to create and carry out restrictions in trade and commerce, to wit, in the business of organizing and producing trade expositions, in that they have conspired and agreed and acted in concert * * * and it was and is their intent and purpose to force Plaintiff out of said business and to...
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