Deeney v. Hotel Etc. Local 283

57 Cal.App.2d Supp. 1023 (1943) ROGER P. DEENEY, Appellant,

v.

HOTEL AND OFFICE EMPLOYEES' UNION LOCAL NO. 283 (an Unincorporated Association) et al., Respondents.

California Court of Appeals.

Feb. 18, 1943. Edmund J. Holl for Appellant.

Henry B. Lister for Respondents.

McWILLIAMS, J.

In this action the plaintiff sued defendants Hotel and Apartment Clerks and Office Employees' Union Local No. 283, and Hotel and Restaurant Employees' International Alliance and Bartenders' International League of America, and C. L. McDonough who was alleged to be the agent and representative and vice-president of said Union. The nature of plaintiff's claim other than that he asked for a money judgment is not important in view of the one issue raised on this appeal. In his complaint plaintiff alleged that the two defendants other than McDonough were voluntary unincorporated associations composed of more than two persons associated together in business and transacting such business under the names above mentioned. Plaintiff also alleged that at all times mentioned in his complaint he was a member in good standing of Local No. 283. The defendants filed an answer in the case and subsequently filed a notice of motion of dismiss the action. The notice stated it was one at law brought by a partner against his copartners that the motion would be made on the ground that the court had no jurisdiction of the action by reason of the fact that [57 Cal.App.2d Supp. 1025] under the provisions of section 388 of the Code of Civil Procedure and that the only action that could properly be brought by the plaintiff against his copartners under the circumstances of the case was one in equity in the superior court for an accounting and a dissolution under sections 2416 and 2426 of the Civil Code. The motion to dismiss was granted on the ground that the court had no jurisdiction of the subject matter of the action. From that order the plaintiff has appealed. Counsel for defendants present the same argument somewhat amplified in this court as appears to have been presented in the court below.

We cannot concur in the reasoning of counsel for defendants or in the ruling of the lower court so far as the two associations are concerned.

[1] We first take up the argument of defendants that the two associations are not engaged in business and hence may not be sued as associations since section 388 of the Code of Civil Procedure is limited by its terms to associations engaged in business. In support of this contention they cite Swift v. San Franciso S. & E. Board, 67 Cal. 567 [8 P. 94]. The irrelevancy of that case is made apparent by a reading of the opinion of the Supreme Court in the case of Jardine v. Superior Court, 213 Cal. 301 [2 P.2d 756, 79 A.L.R. 291]. The reasoning of the court in the latter case is not to be disposed of as counsel for defendants endeavor to dispose of it by saying that the case was not a law action but involved an application for a writ of prohibition. This is made clear by the case of Herald v. Glendale Lodge, 46 Cal.App. 325 [189 P. 329] in which it was held that an association need not be engaged in commercial business in order to authorize an action against it under section 388.