Lefton v. Superior Court

Opinion

FLEMING, J.

Norman and Sylvia Lefton petition for a writ of mandate to compel the trial court to set aside its order granting the motion

[1020]

of Kleiner, Bell & Co. to be relieved of a stipulation regarding release of an attachment. The trial court stayed its order pending appellate review.

In March 1970 the Leftons filed an action against Kleiner, Bell & Co., a Delaware corporation, to rescind contracts for the purchase of stock and for money had and received. Pursuant to Code of Civil Procedure section 537, subdivision 1, the Leftons attached $32,000 which Kleiner, Bell & Co. had on deposit with the United California Bank. In April 1970 attorneys for the Leftons and Kleiner, Bell & Co. signed a letter agreement: The Leftons agreed to release the attached bank account and

not to initiate any further attachment,

Kleiner, Bell & Co. agreed to deposit $28,070 in trust to secure any judgment the Leftons might receive.

Subsequently the Supreme Court ruled unconstitutional Code of Civil Procedure section 537, subdivision 1.

(Randone

v.

Appellate Department,

5 Cal.3d 536 [96 Cal.Rptr. 709, 488 P.2d 13].) Kleiner, Bell & Co, moved in the trial court to be relieved of its stipulation to keep money in trust on the ground that there had been a failure of consideration for the stipulation. The trial court granted the motion.

We think the trial court erred. The Leftons’ agreement with Kleiner, Bell & Co. is supported by consideration. The relinquishment of a legal right constitutes sufficient consideration for a contract.

(Blonder

v.

Gentile,

149 Cal.App.2d 869, 875 [309 P.2d 147].) The Leftons agreed not to initiate any further attachment on Kleiner, Bell & Co. property. Although the Leftons no longer hold the right to attach under section 537, subdivision 1, they still hold the right to» attach under section 537, subdivision