Huber v. Peek-A-Boot, Inc.

FOX, P. J.

Plaintiff appeals from a judgment of dismissal following the sustaining of a demurrer to his second amended complaint without leave to amend.

Plaintiff alleges four causes of action; in the first three he seeks to recover damages on the theory of fraud and misrepresentation on the part of the defendants; in the fourth he alleges a conspiracy among all the defendants to do the acts alleged in the first three.

In the fall of 1952, plaintiff was employed by Peek-A-Boot, Inc. (whose true name is Plastix Footwear Corp.), and was bonded for fidelity by Fireman’s Fund Indemnity Company. Defendant Pollock—who is not involved in this appeal—was the dominant and controlling shareholder and managing officer

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of the defendant corporation. Defendant Spar is an attorney. At all times herein mentioned, plaintiff and defendant Pollock and the corporation were his clients. In December 1952, plaintiff “borrowed” some instruments belonging to defendant corporation. While said instruments were in plaintiff’s possession, Peek-A-Boot made a claim against the indemnity company for the loss of such instruments through the asserted dishonesty of plaintiff. It is also alleged that during this period defendants were engaged in a dispute with Mr. and Mrs. Elbert Davis and Plas-Kem Corporation, which was a competitor of Peek-A-Boot, Inc.; that defendants, in connection with this dispute, desired plaintiff to make a written statement, under oath, wherein he would admit taking certain plastic raw materials belonging to Peek-A-Boot, in collusion and cooperation with Plas-Kem Corporation and Mr. and Mrs. Davis. Plaintiff further alleges that on or about August 11, 1953, defendants conspired and agreed among themselves to take advantage of the confidential relationship then existing between plaintiff and defendants and, through false and fraudulent representations, undue influence, and threats of criminal prosecution, induced plaintiff to sign a statement, under oath, wherein he confessed to the theft of the defendant corporation’s tools; and that he had participated, with Mr. and Mrs. Davis and Plas-Kem, in the theft of raw plastic materials from said defendant corporation; that defendants made numerous representations to him which, essentially, were to the effect that said confession would not be used in any litigation or in any way to his damage or detriment; that the statements made in said confession were untrue, and that the making of said false confession under oath constituted perjury. Plaintiff also alleges that notwithstanding the representations of the defendants, they nevertheless used said confession as a basis for a suit by Peek-A-Boot, Inc., against plaintiff in the superior court of Los Angeles County (No. 624820) to recover for his asserted thefts from defendant corporation. On April 5, 1954, Peek-A-Boot, Inc., obtained a default judgment against plaintiff in that action in the amount of $9,555.28. Plaintiff further states that as a result of said confession, Fireman’s Fund Indemnity Company, which had previously executed a fidelity bond in his behalf in favor of Peek-A-Boot, Inc., filed an action in the superior court of Los Angeles County (No. 649812) against him, and on November 3, 1955, obtained a judgment in the sum of $4,542.51 and costs- Also, based upon said false confession, Peek-A-Boot,