Wilson v. Loew's Inc.

• Decision Date: 11 June 1956
• Court: California Court of Appeals Court of Appeals
• Parties: Michael WILSON et al., Plaintiffs and Appellants, v. LOEW'S INCORPORATED, a corporation, et al., Defendants, Association of Motion Picture Producers, Inc. (sued herein as I Doe Co.) et al., Respondents. Michael WILSON et al., Plaintiffs and Appellants, v. LOEW'S INCORPORATED, a corporation, et al., Defendants. Clyde Doyle, et al., Respondents. Civ. 20769, 21100.

Page 152

298 P.2d 152

142 Cal.App.2d 183

Michael WILSON et al., Plaintiffs and Appellants, v. LOEW'S INCORPORATED, a corporation, et al., Defendants, Association of Motion Picture Producers, Inc. (sued herein as I Doe Co.) et al., Respondents.

Michael WILSON et al., Plaintiffs and Appellants, v. LOEW'S INCORPORATED, a corporation, et al., Defendants.

Clyde Doyle, et al., Respondents.

Civ. 20769, 21100.

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

June 11, 1956.

Rehearing Denied July 11, 1956.

Hearing Denied Aug. 8, 1956.

Kenny & Morris, Thomas G. Neusom, Margolis, McTernan & Branton, and Robert W. Kenny, Los Angeles, for appellants.

Irving M. Walker, Herman F. Selvin, Loeb & Loeb, O'Melveny & Myers, Mitchell, Silberberg & Knupp, Freston & Files, Wright, Peeler & Garrett, Los Angeles, Joseph S. Dubin, Universal City, and Oliver B. Schwab, Beverly Hills, for respondents in No. 21769.

Guy Richards Crump and Slate & Sawtelle, Los Angeles, for respondents in No. 21100.

VALLEE, Justice.

Appeals from two judgments of dismissal. The case is here on an amended complaint, referred to as the complaint. There are 23 plaintiffs and 23 counts. All of the defendants except three are motion picture producers and distributors. Two of the three remaining defendants are members of the Committee on Un-American Activities of the United States House of Representatives and the third is an investigator for that Committee. A demurrer of the motion picture producers and distributors was sustained without leave to amend and judgment of dismissal entered. One of the appeals is from that judgment. Demurrers of the three remaining defendants to the amended complaint were sustained with leave to amend. Plaintiffs declined to amend and judgment of dismissal followed. The other appeal is from that judgment.

Each count of the complaint relates to only one plaintiff. The counts are identical except for personal data. A statement of the first count will suffice as a statement of the pleading as a whole. It alleges:

1. Plaintiff Wilson is by profession a motion picture writer; has had more than 5 years experience as a writer; has acquired a reputation for work in the motion picture industry; has won high esteem as a writer in that industry; all of which defendants at all times knew. ¹

2. The corporate defendants are engaged in the production and distribution of motion pictures. The corporate and individual defendants, other than the Committee members and the investigator, control directly and indirectly all motion picture production and distribution in the United States and all motion picture employment opportunities for actors, writers, directors, producers, and other employees in that industry.

3. Defendant members of the Committee on Un-American Activities and the investigator at all times and with respect to the matters alleged 'acted both in their official capacity with relation to said House Committee on Un-American Activities and individually in non-official capacities.'

4. Prior to March 1951 and continuously thereafter defendants, and each of them, agreed with each other to refuse employment to and exclude from employment in the motion picture industry the following persons:

a. All employees and persons seeking employment who had been or thereafter were subpoenaed as witnesses before the Committee on Un-American Activities of the House of Representatives and who refused on constitutional grounds to answer questions 'concerning their political affiliations, associations and beliefs.'

b. All employees in the industry and persons seeking employment therein who were named before the Committee as Communists or who were subpoenaed to appear as witnesses before the Committee, or who were suspected of ever having been Communists or of ever having had associations with Communists, and who refused or failed to appear before the Committee and waive and surrender their constitutional rights and testify or give statements fully disclosing 'their own political affiliations, associations and beliefs and those of their family, friends, associates and acquaintances.'

c. Defendants, with the intent to prevent such employees and other persons from having or obtaining employment in the motion picture industry, maliciously and without justification undertook to and did induce and persuade each other and other employers in the industry to desist and refrain from employing and to refuse employment to all such employees and other persons.

d. All defendants, as a part of the agreement and as one of the means of effectuating it, have published and circulated throughout the entire motion picture production and exhibition fields a list containing the names of such employees and other persons with the direction and intent that they be not employed. Plaintiff contends defendants wrongfully, maliciously, and without justification or excuse have interfered with and injured the right of said employees and other persons reasonably to expect employment in the industry and to pursue their professions and occupations therein, and have prevented their employment therein.

5. On September 20, 1951 plaintiff Wilson appeared before the Committee pursuant to subpoena. He there refused to answer certain questions 'concerning his political affiliations, beliefs and associations' basing his refusal on his constitutional rights, including the privilege against self-incrimination.

6. As a result of such refusal and by reason of the acts of and pursuant to the agreement of defendants, Wilson ever since September 20, 1951 has been and he now is refused and is excluded from employment in the industry. Therefore he will henceforth continue to find it impossible to obtain employment in the profession to which he has devoted a major part of his life and energy.

7. It is plaintiff's belief that the purpose of the agreement is to limit, control, and direct the political activities of defendants' employees; to coerce and influence them through and by means of threat of discharge and loss of employment from adopting or following any course or line of political action and activity not acceptable to the Committee; to limit employment in the industry to those persons whose political beliefs are acceptable to the Committee; and to limit the production of motion pictures by the industry to those the content of which is acceptable to the Committee.

8. Plaintiff has been damaged in the sum of $1,000,000 for loss of opportunity of employment in the industry and deprivation of artistic and intellectual gratification flowing therefrom and the resulting humiliation and anguish; in the sum of $250,000 for the jeopardizing of employment opportunities in other industries because of the necessity of disclosing the reasons for his inability to obtain employment in the industry; and in the sum of $1,000,000 as punitive damages.

The allegations in respect to the appearance of all but five of the plaintiffs before the Committee are, save for dates, identical. In each instance the appearance before the Committee was after the alleged making of the agreement. As to the five who did not appear, the averments are that each was named as a Communist by a witness appearing before the Committee; that each refused to appear before the Committee to answer questions concerning his or her 'political affiliations, beliefs and associations,' basing such refusal on his or her constitutional rights including the privilege against self-incrimination; as a result of the acts of and pursuant to the agreement, they have been refused and excluded from employment in the industry by defendants and all other employers therein; and they will henceforth find it impossible to obtain such employment. In each instance the refusal to appear was after the making of the alleged agreement.

The prayer is for money damages of $2,250,000 on each count and for an injunction.

The amended complaint is to be implemented by the facts of which we take judicial notice. In considering a demurrer to a complaint, facts judicially noticed are deemed a part of the complaint even when the pleading contains an express allegation to the contrary. ² We take judicial notice of the proceedings and reports of the Committee on Un-American Activities. ³ The proceedings and reports of the Committee show that each of 18 of the 23 plaintiffs was asked by the Committee whether he or she was then or ever had been a member of the Communist Party. Each refused to answer, asserting his or her constitutional privilege against self-incrimination. Each of the other 5 plaintiffs was stated to be a Communist by a witness before the Committee and on the same grounds refused to appear and state whether he was then or ever had been a member of the Communist Party. The refusals occurred in the course of hearings held as part of a Congressional investigation by the Committee on Un-American Activities of the House of Representatives acting within the scope of its authority into Communist infiltration of the motion picture industry, ⁴ for the protection of the internal security of this Nation and the public disclosure of the forces that menace the United States. It thus appears, contrary to the allegations of the complaint, that the questions which the 18 plaintiffs refused to answer and that the statements which the 5 refused to appear and give had nothing whatever to do with their political affiliations, associations, or beliefs but concerned their membership in 'a conspiratorial and revolutionary junta' ⁵ one of whose objectives is the overthrow of our government by force and violence, ⁶ a malignant force which menaces the very existence of the government. It also necessarily appears, contrary to allegations of the complaint, that the purpose of the agreement was not to limit, or control, or direct the political activities of defendants' employees or to coerce them from following any course of political action or to limit...