James Talcott, Inc. v. Short

Opinion

COBEY, Acting P. J.

These consolidated appeals by defendants, Marvin and Helane Short and Howard and Rosalind Gold, are from partial summary judgments on the first cause of action in the respective complaints of plaintiffs, James Talcott, Inc. and M. Varela, in the total amounts of $104,613.43 and $245,246.03.

1

The appeals lie. (Code Civ. Proc., § 437c.)

[507]

Defendants, Short and Gold, contend that the summary judgments under appeal constitute an abuse of discretion because they were unable to resist them without waiving their constitutional privilege against self-incrimination. We reject this contention and intend to affirm these judgments for reasons that follow.

Facts

At all times material to this litigation plaintiff Talcott was a factor which purchased by assignment accounts receivable of four specified suppliers of Helane of California, Inc. totaling $87,718.99. Similarly plaintiff Varela is the assignee for collection of Chemical Bank, a factor, which purchased the accounts receivable of four specified suppliers of Helane totaling $209,170.47. In October 1976 Helane became insolvent. Some nine months previously the four individual defendants, Short and Gold, executed, for valuable consideration, and delivered to Talcott a written guarantee of all sums due from Helane to Talcott. Similarly, in March 1972, the same four defendants, for valuable consideration, executed and delivered to Chemical a written guarantee of all sums due from Helane to Chemical.

On January 18, 1977, the two plaintiffs filed their separate actions against, among others, these same four defendants. Both cases came to issue the following month. The next month (March 1977) the local federal grand jury apparently began a criminal investigation of the business activities of the aforementioned four defendants and Helane, among others, and caused to be delivered into its custody extensive business records of these individuals and this corporation. These same business records were apparently also relevant to this litigation.

Both plaintiffs herein in April 1977 promptly initiated discovery against defendants Short and Gold by requesting certain admissions of them and by serving upon them an interrogatory. These defendants thereupon moved, pursuant to Code of Civil Procedure section 2019, subdivision (b)(1), for a protective order against essentially all discovery on the ground that such discovery would violate their constitutional privilege against self-incrimination.