Vanguard Recording Society, Inc. v. Fantasy Records, Inc.

Decision Date28 March 1972
Citation100 Cal.Rptr. 826,24 Cal.App.3d 410
PartiesVANGUARD RECORDING SOCIETY, INC., etc., et al., Plaintiffs and Respondents, v. FANTASY RECORDS, INC., etc., et al., Defendants and Appellants. Civ. 28489.
CourtCalifornia Court of Appeals Court of Appeals

Henry C. Krivetsky, San Francisco, for defendants and appellants.

Francis J. McTernan, Garry, Dreyfus, McTernan & Brotsky, San Francisco, Siegfried Hesse, Berkeley, for plaintiffs and respondents.

ROUSE, Associate Justice.

Plaintiffs Vanguard Recording Society, Inc., Vanguard Record Sales Corp. (hereafter collectively referred to as 'Vanguard') and Joan Baez, brought suit against Fantasy Records, Inc.; Richard Tognazzini; and Max Weiss, Milton Weiss and S. S. Weiss, individually and doing business as Circle Record Company, to obtain damages and an accounting. The gist of the complaint was that defendants, in knowing violation of certain exclusive recording contracts between plaintiffs Vanguard and plaintiff Baez, had produced and distributed a poor quality and tasteless record of an early performance by Baez. Plaintiffs alleged that defendants' conduct had damaged Baez' reputation and had impaired the value of her recording contract with Vanguard. It was further alleged that Vanguard had been compelled to incur substantial attorney's fees in order to enjoin and restrain sales of defendants' record. Plaintiffs sought damages and an accounting of defendants' profits from the sale of the record.

Defendants, by way of answer, admitted the production and distribution of the Baez record, but denied that plaintiffs were entitled to damages or an accounting. Defendants affirmatively alleged that plaintiffs' cause of action had been litigated between the parties to final judgment in a prior action.

Plaintiff Baez was dismissed as a plaintiff, at her request, prior to trial.

Following a nonjury trial, the court made findings of fact as follows: that at all times since July 3, 1960, Baez had contracts with plaintiffs Vanguard (or their predecessor in interest) for the exclusive manufacture and sale by said corporations of phonograph records of Baez' performances; that during the months of April and May 1964, defendants contracted among themselves to lease a 1958 tape recording made by Baez and to manufacture, distribute and sell phonograph records made from said tape recording; that defendants knew of the exclusive recording agreements between Baez and plaintiffs Vanguard and that defendants also knew that they had no right, title or interest in said tape recording and no right to reproduce and sell phonograph records made from said tape recording; that defendants nevertheless produced and distributed to the public for sale more than 40,000 phonograph records entitled 'Joan Baez in San Francisco,' made from the 1958 tape recording; that the 1958 tape recording was made at a time when Baez was an immature and inexperienced singer and guitarist and that said recording did not fairly represent her present ability and style, which are unique, distinctive and creative; that the production and distribution of defendants' record had injured and damaged Baez' reputation and the sales of her current records made and released by plaintiffs Vanguard; that plaintiffs Vanguard, in order to protect their business and their exclusive contracts with Baez, were required to notify record distributors and dealers throughout the country that defendants had no right or authority to produce or sell 'Joan Baez in San Francisco,' and that plaintiffs were also required to retain counsel in various cities to take necessary action to enjoin and restrain sales of said record; that plaintiffs expended the sum of $17,500 in attorney's fees and costs in seeking injunctions against parties other than defendants to halt the sale of defendants' record; that plaintiffs had sustained total damages in the amount of $25,000 as a result of defendants' wrongful conduct. The court also found that Baez had brought a prior action for a permanent injunction against defendants in the San Francisco Superior Court and had prevailed in said action; that judicial notice of the findings in said action would be taken and held to be binding upon defendants.

A judgment in the amount of $25,000 was entered in favor of plaintiffs and against all defendants. All defendants thereafter moved for a new trial. The court granted a new trial as to defendants Milton Weiss and Richard Tognazzini only. The remaining defendants, Fantasy Records, Inc., S. S. Weiss, individually and doing business as Circle Record Company, and Max Weiss, were denied a new trial; they filed a timely notice of appeal from the judgment. 1

Defendants' first contention on appeal is that the bringing of the instant action was barred by the doctrine of res judicata because plaintiffs controlled the prior injunctive action brought by Baez against defendants and were in privity with her. Defendants assert that Baez (and plaintiffs, as her privies) could have sought damages as well as injunctive relief in said action and were not entitled to split their cause of action against defendants and bring one suit for injunctive relief and a later suit for damages arising from the same basic wrong. Defendants claim that when the San Francisco Superior Court rendered a judgment permanently enjoining defendants from manufacturing, selling of distributing the Baez record, plaintiffs lost their right to bring any further suit against defendants arising from the manufacture and sale of 'Joan Baez in San Francisco.' Defendants further assert that since their principal defense at the trial was that the bringing of the instant action was barred by the prior injunctive action, the trial court in the instant case was required to make a finding of fact on the privity question and to render a conclusion of law relative to the applicability or nonapplicability of the doctrine of res judicata. Defendants contend that the court erred because it failed to resolve these issues in its findings or conclusions of law. However, defendants take the position that the evidence on the privity issue was undisputed and that this court should exercise its power under Code of Civil Procedure, section 909 (formerly section 956a) and make its own finding that plaintiffs were in privity with Baez.

Under California law, it is clear that if plaintiffs themselves had been actual parties in the prior injunctive action brought in the San Francisco Superior Court, they would not be entitled to bring the instant action for damages against defendants. In the early case of Abbott v. 76 Land and Water Co. (1911) 161 Cal. 42, 118 P. 425, plaintiff's assignor had brought suit to obtain specific performance of a contract to convey certain property. He prevailed in that action and then assigned his claim to plaintiff, who brought a second action to obtain damages arising from defendant's breach of the contract to convey the property. Our Supreme Court held that the second action was barred because plaintiff's assignor could have sought damages as well as specific performance in the first action and was not entitled to split his cause of action against defendant. The court stated: '(U)nder elementary principles, he was bound to obtain all his relief on account of the breach in one action, and could not recover part in one and part in another. If he had brought his action at law for damages, thereby treating the contract as at an end, a judgment therein awarding him damages would have been conclusive on him as to the amount of damages sustained by reason of the breach, and a bar to any action for further damage on account thereof. Resorting as he did to an action in equity to compel specific performance of the contract, instead of an action at law for damages, the decree in his favor of the court having the power to give him all relief that he was entitled to on account of the breach is likewise conclusive and a bar to any subsequent action for relief based on the same contract. This is the necessary result of the application of the well-settled principle that an entire claim, arising either upon a contract or from a wrong, cannot be divided and made the subject of several suits. In such a case, it is no warrant for a second action that the party may not be able to actually prove in the first action all the items of the demand, or that all the damage may not then have been actually suffered. He is bound to prove in the first action, not only such damage as has been actually suffered, but also such prospective damage by reason of the breach as he may be legally entitled to; for the judgment he recovers in such action will be a conclusive adjudication as to the total damage on account of the breach. (Citation.)' (Pp. 47--48, 118 P. pp. 427--428.)

Although the Abbott case involved an action for specific performance followed by an action for damages, it is apparent that the same reasoning would apply where the first action was one for injunctive relief rather than specific performance. This precise situation arose in the subsequent case of Orloff v. Hollywood Turf Club (1952) 110 Cal.App.2d 340, 345, 242 P.2d 660, 663, and the court stated: '(I)t seems apparent that under the rule laid down in Abbott v. '76 Land & Water Co. . . . that the damages sought in the instant actions were recoverable in the injunction suits and hence are not recoverable here.'

Although it is thus clear that the instant action would be barred had plaintiffs been actual parties to the prior injunctive action brought against defendants, it does not follow that such action is barred because plaintiffs were in control of the prior action and in privity with Joan Baez, who was the actual plaintiff in that action. Defendants have been unable to cite a single California case holding that the rule against splitting a cause of action applies to privies,...

To continue reading

Request your trial
38 cases
  • Pachmayr Gun Works, Inc. v. Olin Mathieson Chemical Corp., Winchester Western Div.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 12, 1974
    ...Title Guaranty Corp., 59 Cal.2d 618, 620, 30 Cal.Rptr. 821, 823, 381 P.2d 645, 647 (1963); Vanguard Recording Soc., Inc. v. Fantasy Records, 24 Cal.App.3d 410, 100 Cal.Rptr. 826 (1972). However, plaintiffs do not argue that either of these judicial exceptions is applicable Rather, 17082 of ......
  • Chambers v. Crown Asset Mgmt., LLC
    • United States
    • California Court of Appeals Court of Appeals
    • October 21, 2021
    ...the statute. The authorities Crown cites bear no relation to the circumstances here. (See Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal.App.3d 410, 418-419, 100 Cal.Rptr. 826 [affirming admission of a summary of "some 50,000 sales invoices," where it was "clear tha......
  • Rankin v. Frebank Co.
    • United States
    • California Court of Appeals Court of Appeals
    • April 10, 1975
    ...whom the plea is asserted a party or in privity with a party to the prior adjudication? " (Vanguard Recording Society, Inc. v. Fantasy Records, Inc., 24 Cal.App.3d 410, 417, 100 Cal.Rptr. 826, 831, quoting Bernhard v. Bank of America, 19 Cal.2d 807, 813, 122 P.2d Clearly, the issue litigate......
  • David v. Hermann
    • United States
    • California Court of Appeals Court of Appeals
    • May 18, 2005
    ...168 Cal.Rptr. 387) and intentional interference with an exclusive recording contract. (Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal.App.3d 410, 413-414, 100 Cal.Rptr. 826.) Prentice made clear that Code of Civil Procedure section 1021 "prohibits the allowance of a......
  • Request a trial to view additional results
2 books & journal articles
  • Documents
    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...that these writings be produced for inspection by the adverse party. Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal. App. 3d 410, 419, 100 Cal. Rptr. 826. A summary need only include the pertinent portions of the underlying documents. Wolfen v. Clinical Data, Inc. (......
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...People v. (2011) 197 Cal. App. 4th 1, 127 Cal. Rptr. 3d 821, §17:60 Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal. App. 3d 410, 100 Cal. Rptr. 826, §14:30 VanVleck, People v. (2016) 2 Cal. App. 5th 355, 205 Cal. Rptr. 3d 839, §18:20 Vargas, People v. (2009) 178 Cal......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT