Dosch v. King

California Court of Appeal Jun 7, 1961 No. Civ. 10245Published

Before: Schottky

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Holding. The court denied a petition for a writ of supersedeas to stay a preliminary injunction, finding that the underlying contract was executory and the petitioner had not established possession of the business.

Issues

Whether the injunction pendente lite was prohibitory or mandatory in nature.
Whether the petitioner was entitled to a writ of supersedeas to stay the enforcement of the injunction.

Disposition. denied

Quotations verified verbatim against the opinion

“An injunction is prohibitory if it merely has the effect of preserving the subject of the litigation in statu quo”

“we do not believe that the granting of supersedeas would be a proper exercise of our discretion”

SCHOTTKY, J.

Bruce E. King seeks a writ of supersedeas to stay the enforcement of an injunction pendente lite which prohibited him from:

1. Representing himself to be The Dosch Company, or the owner thereof.

2. Being on or about the premises of the company, or using any of the equipment, or records, or other property of the company.

3. Approaching or soliciting for business purposes any of the customers of The Dosch Company.

4. Collecting or withholding from The Dosch Company any funds due it, and forbidding him to enter the post-office box of the company.

[802]

5. Interfering in any manner with the operation of the company.

6. Withdrawing funds of The Dosch Company on deposit at any bank.

7. Withholding from P. Elwood Dosch the premises where the business is operated and any records, material or equipment which belong or pertain to the operation of The Dosch Company.

It is alleged in the petition that on August 1, 1960, petitioner, Bruce E. King, and P. Elwood Dosch entered into an oral contract whereby King agreed to purchase The Dosch Company, a sign-painting business. In reliance upon the oral contract King entered into a long-term lease of certain real property at a rental of $635 per month. Certain equipment of the company was moved to the new premises and operations commenced with King as owner and Dosch as an employee. Some time prior to March 10,1961, Dosch commenced an action in the superior court in which it was alleged that King had breached the contract by failing to pay the purchase price as agreed and that King never intended to perform the contract. An injunction was also sought, and on March 20, 1961, after a hearing, the trial court issued an injunction pendente lite. An appeal has been taken and supersedeas is now sought.

As exhibits to his petition, petitioner King filed declarations of Ivanhoe T. Gibson, Virginia Kolaitis and Howard Newman. These were to the general effect that Dosch was incompetent to properly manage the business and that the business of the company would suffer and deteriorate if Dosch regained control of it.

Dosch v. King

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SCHOTTKY, J.

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