DeToth

Plaintiff appeals from a judgment of dismissal entered upon sustaining defendant’s general and special demurrer to the complaint without leave to amend.

*757 In substance the pleading discloses the following: Plaintiff is seeking a declaration of the rights and duties of the parties under an unwritten contract of employment. On June 6,1943, plaintiff orally engaged the services of defendant as a motion picture director for a term of one year “immediately next ensuing, ” at a salary of $250 a week for each week of service actually rendered, with the privilege of a maximum twelve week lay-off during the contract term. Plaintiff was granted the option of renewing or extending the contract for additional terms of one year each for six successive years at rates of compensation gradually increasing from $350 a week for the second year to $1,500 a week for the sixth year. Each exercise of the option for a succeeding year was to be made prior to expiration of the current year,

On June 7th, the day after the oral contract was made, defendant represented to plaintiff that because of certain business commitments he desired to' defer the commencement of his services under the contract -to a…

I dissent. The question presented here is not whether the trial court would have been justified, under the facts alleged, in overruling the demurrer and in granting declaratory relief, but whether the trial court was compelled, under the facts alleged, to overrule the demurrer and to grant such relief.

Section 1061 of the Code of Civil Procedure provides: “The court may refuse to exercise the power granted by this chapter in any case where its declaration .or determination is not necessary or proper at the time under all the circumstances.' ’ The majority opinion fails to give effect to the provisions of this section and fails to consider numerous authorities dealing with the discretionary power thereby vested in the trial court, such as City of Alturas v. Gloster, 16 Cal.2d 46 [104 P. 2d 810]; Rapaport v. Forer, 20 Cal.App.2d 271 [ 66 P.2d 1242 ]; Sunset Scavenger Corporation v. Oddou, 11 Cal.App.2d 92 [ 53 P.2d 188 ]; Welfare Inv. Co. v. Stowell, 132 Cal.App. 275 [ 22 P.2d 529 ]; Hamburger & Sons v. Kice, 129 Cal.App. 68 [ 18 P.2d 115 ]; and Stenzel v. Kronick, 102 Cal.App. 507 [ 283 P. 93 ].

In my opinion, the trial court was not compelled to overrule the demurrer and grant…

Plaintiff appeals from a judgment of dismissal entered upon sustaining defendant's general and special demurrer to the complaint without leave to amend.

In substance the pleading discloses the following: Plaintiff is seeking a declaration of the rights and duties of the parties under an unwritten contract of employment. On June 6, 1943, plaintiff orally engaged the services of defendant as a motion picture director for a term of one year "immediately next ensuing," at a salary of $250 a week for each week of service actually rendered, with the privilege of a maximum twelve week layoff during the contract term. Plaintiff was granted the option of renewing or extending the contract for additional terms of one year each for six successive years at rates of compensation gradually increasing from $350 a week for the second year to $1,500 a week for the sixth year. Each exercise of the option for a succeeding year was to be made prior to expiration of the current year.

On June 7th, the day after the oral contract was made, defendant represented to plaintiff that because of certain business commitments he desired to defer the commencement of his services under the contract…