Babcock v. Crafts 20 Big Shows, Inc.

VAN DYKE, P. J.

This is an appeal from a judgment based upon an order sustaining a demurrer to plaintiff’s amended complaint without leave to amend.

In substance the complaint alleges the following: Plaintiff and the defendants are all engaged in the business of buying exclusive privileges for supplying carnival attractions to various fairs and community celebrations in California. Prior to December, 1956, they were all in competition with each other and their position in the business was such that among them they did about 80 percent of the total business in the state. Competition was keen. During the year prior to the commencement of this action the defendants conspired and agreed to combine their capital and skill, with the purpose of creating and carrying out competitive restrictions in the business. To accomplish this they intended, by combining, to drive plaintiff out by making it financially impossible for him to compete with them, and then having thus come into a position of dominance and control they intended to fix and maintain unreasonably low prices for the privilege of supplying carnival attractions. Accordingly, they conspired and agreed that they would not bid for the privilege of furnishing carnival attractions in competition with each other, but would bid jointly, making unreasonably low bids if plaintiff did not bid, but if he did bid then they would jointly bid higher even though their joint bid would be at such a price as to permit little or no profit to them. Having so conspired, and plaintiff having bid for the privilege of supplying carnival attractions for the State Fair in 1957, the defendants submitted their joint bid substantially higher than plaintiff’s bid, which they would not have done save for such plan and thereby obtained the privilege to plaintiff’s damage in the sum of $50,000 through his loss of the privilege.

Section 16720 and following of the Business and Professions Code (the Cartwright Act) contain California’s legislation banning combinations of capital, skill or acts in restraint of trade or commerce. Section 16720 provides that:

[60]

“A trust is a combination of capital, skill or acts by two or more persons for any of the following purposes:

“(a) To create or carry out restrictions in trade or commerce.