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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:25:13 GMT
This is the last section of the appeal document and states a dissenting viewpoint as the judgement did not seem unanimous. However the judgement was indeed made final and the Krieger/Manzarek appeal was lost. The trial was finally over. The Judgement of greg Alarcon made in May 2005 was upheld and all the actions taken by him affirmed by the California appeal court.
SUMMARY
John Densmore, the former drummer of The Doors, sued his band-mates Raymond Manzarek, the keyboard player, and Robert Krieger, the guitarist. Manzarek and Krieger had asked Densmore to tour and perform with them but Densmore said no. Manzarek and Krieger toured without Densmore, performing as The Doors and The Doors of the 21st Century. Densmore filed this lawsuit, alleging breach of various partnership agreements, trademark infringement, and unfair competition. The legal heirs to the Estate of Jim Morrison – the lead singer of The Doors who died in 1971 – also sued Manzarek and Krieger, asserting similar claims.
A jury heard evidence during a trial that lasted more than eight weeks. The jurors deliberated almost a month; then they returned their verdicts. They found against Densmore and the Morrison parties on their trademark and unfair competition claims. The jury decided that Manzarek and Krieger had breached their written contract with Densmore, but they awarded Densmore no monetary relief. The jury put a zero in the blank space on the verdict form that asked “what amount, if any, do you award?” The trial court disregarded that verdict, however, and awarded Densmore and the Morrison parties more than $3.2 million.
The claims Densmore and the Estate heirs asserted were legal claims. Manzarek and Krieger therefore were entitled to a jury trial. That jury trial right means the jury’s verdict is entitled to dignity, and it must govern. The trial court cannot ignore or eviscerate the jury’s decision. The invalidation of the jury’s verdict was error, and reversal is required.
PROCEDURAL HISTORY
A.The Complaints and Cross-Complaints
In his Second Amended Complaint dated July 31, 2003, John Densmore sued as an individual and on behalf of the Doors Music Co. partnership and the “Old Doors partnership.” Densmore alleged causes of action for violation of the Lanham Act (15 U.S.C. § 1125©(1)), common law unfair competition, unfair competition in violation of California Business and Professions Code section 17200, breach of oral partnership agreements; breach of the 1971 “New Doors” written contract, and breach of fiduciary duty. Densmore requested an injunction; an accounting and the payment to himself “and/or” the partnerships of “all gains, profits, and advantages” Manzarek and Krieger had acquired in performing; and “such damages as [he and/or the partnerships] [had] sustained by reason of the Defendants’ breach of the Doors Music Co. and Old Doors oral partnership agreements, their breach [of] the 1971 partnership agreement, and their breaches of fiduciary duty.”
Defendants Raymond Manzarek and Robert Krieger cross-complained, as individuals and on behalf of “several California general partnerships.” They alleged breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, promissory estoppel, intentional interference with economic advantage, and violation of Business and Professions Code section 17200. They also sued for declaratory relief and reformation of the 1971 partnership agreement. Manzarek and Krieger prayed for general and special damages, restitution, and an injunction.
Jim Morrison’s successors in interest also sued Manzarek and Krieger. Their lawsuit was transferred to the court handling Densmore’s case. The plaintiffs were Morrison’s parents, George and Clara Morrison, and the parents of Pamela Courson, Morrison’s deceased companion, Columbus and Pearl Courson (collectively “the Estates”). The Estates’ Second Amended Complaint, filed March 2, 2004, alleged causes of action for trademark infringement in violation of the Lanham Act, common law trademark infringement, unfair competition, violation of Business and Professions Code section 17200, false advertising in violation of Business and Professions Code section 17500, state law trademark dilution in violation of Business and Professions Code section 14330, violation of the statutory right of publicity for deceased individuals (Civ. Code, § 3344.1), breach of contract, breach of implied-in-fact contract, and breach of fiduciary duty. The Estates asked the court to impose a constructive trust. The Estates also sought an injunction, an order that Manzarek and Krieger “deliver for destruction” any products that violated the Estates’ trademarks, an accounting and the payment of “gains” and “profits” from sales of products and performances, “compensatory damages according to proof” at trial, and other statutory damages.
B. The Jury Trial and the Untimely Motion for a Court Determination of Equitable Claims
After nearly 17 months of discovery, trial began before a jury on June 29, 2004. In his opening statement, Densmore’s attorney, Jerome Mandel, told the jury:
“We believe that the mark and the name and the legacy of ‘The Doors’ has been harmed. We don’t want damage for the harm. We’re not going to ask you to value how much the catalogue has gone down. But we do think that when these partners without proper authority take the asset of this partnership for themselves, it’s wrong. It’s a theft. It’s a misappropriation. It’s identity theft. [] And we do want them to give to the partnership of four the revenues that they’ve made by using this name because it’s not right for them to keep it. They didn’t have the right to use it. That’s what we want, ladies and gentlemen. And you’ll see the numbers. You’ll see the grosses. The millions and millions of dollars that are involved. We think it’s a clear, clear violation of the law and a violation of their agreements, their agreements for 40 years.”
Manzarek and Krieger’s attorney, William Briggs, told the jury in his opening that Densmore not only was “asking [Manzarek and Krieger] to stop the use of the name,” but that he also was “trying to get money, money that they have earned.” Densmore, he said, was going “to ask [the jurors] to take money out of [Manzarek and Krieger’s] pocket and give it to him.”
At the end of July 2004, after trial had been underway for about a month, Densmore and the Estates filed a “motion to have equitable issues first determined by court.” Manzarek and Krieger filed an opposition brief on August 5, 2004. About a week before Densmore and the Estates filed their motion, Mandel mentioned the issue for the first time:
Mr. Mandel: “ . . . . t’s not something for discussion. I just wanted to sort of invite the court to think about the problem ‘cause frankly I don’t – not the problem, the issue – I don’t think I’ve ever faced it in my 33 years. But as we were going through my office trying to start to put together the jury instructions,. . . we’ve become pretty satisfied. And maybe it’s subject to debate, I don’t know, but we’ve become pretty satisfied that almost every claim in this case is equitable and is to be decided by the court. It’s possible, possible, that a couple of the cross-complaints, claims by the cross-complainants, depending on how things are phrased, could be jury issues. But regardless of whether that’s the case or not, there clearly are many issues that are equitable issues that will require the court to make those equitable determinations first before the jury acts on the nonequitable claims. . . . []
The Court: Are you just telling the defense for, this for the first time?
Mr. Mandel: Yeah. I --
Mr. Briggs: Absolutely.
Mr. Mandel: Yeah. I mean --
Mr. Briggs: And we strongly disagree with the characterization.
Mr. Mandel: Well, that -- and it may be that there’s things that need to be discussed about that.
The Court: Okay.
Mr. Mandel: I mean, certainly, we’ve all know[n] that at some point there are equitable claims. We may differ as to which of them they are.
The Court: Okay.
Mr. Mandel: Our understanding of the law . . . is that where equitable relief is sought, that’s what’s going to dictate whether or not they are issues of fact for the jury or not. And since in this case what we seek for the most part are equitable remedies of disgorgement and restitution, constructive trusts, those kinds of things, the court may find itself having to make more decisions than it may have thought. It may want the jury to do advisory findings. I don’t know. I’ve never been in an advisory-finding thing. And I’m not inviting a discussion necessarily. It just last night . . . [] . . . when we focused on this that it was prudent for us to say to you as soon as we knew that we thought that was an issue that would sometime have to be wrestled with.
The Court: Okay.
Mr. Briggs: Well, Your Honor, I don’t have the complaint before me, I don’t have the cross-complaint before me, and I don’t have the Estates[’] complaint, so I would have to go through them to make an analysis of that situation.
The Court: Okay.”
The next day, Mark Hurwitz, a lawyer for the Pamela Courson Estate, testified at trial. On cross-examination, Hurwitz was asked about what the Estates were seeking in their lawsuit:
“[Mr. Briggs:] And your clients . . . they’re here because they’re fighting for money, aren’t they?
[Mr. Hurwitz:] No. They’re fighting for what is prayed for in this complaint. There’s several remedies sought in the complaint. And I think it speaks for itself. . . . They’re seeking to prevent this theft of the name and logo. [] They’re seeking a disgorgement of profits that have been made by Mr. Densmore [sic] and -- by Mr. Manzarek and Mr. Krieger through what we consider to be the wrongful use of assets that they don’t own individually. [] And they’re seeking the damages provided by statute for these violations as well as an order preventing the continued use of assets that don’t belong to them individually.
[Mr. Briggs:] Your clients want a disgorgement of profits. What does that mean?
[Mr. Hurwitz:] That means that any profits that have been made by Mr. Krieger and Mr. Manzarek through the use of assets that didn’t belong to them that rather belonged to the partnership should be paid to the partnership . . . .
[Mr. Briggs:] That means they want the money from my clients going out touring and performing; right? [] . . . []
[Mr. Hurwitz:] And they want . . . their share of whatever monies have been taken from the partnership by virtue of the use of this name and logo. [] . . . []
[Mr. Briggs]: Sir, your clients are in this court asking this jury to disgorge profits. That means they want money in their pocket, doesn’t it?
[Mr. Hurwitz]: To the extent that they had appropriated partnership assets to their own benefit, the answer is yes.”
The trial went on. About two weeks after Densmore and the Estates filed their motion for the court to decide the equitable issues, Briggs asked the court when it wanted to discuss the matter, noting that Manzarek and Krieger had filed opposition. The court confirmed that it had received the opposition but did not set a time to discuss the issue or to hear the motion.
C. Jury Instructions and Closing Arguments
On August 25, 2004, after more than eight weeks of trial, the court and counsel discussed jury instructions. The record contains an undated minute order:
“The Court has reviewed both stacks of proposed jury instructions. This Court requires joint jury instructions and the non rejected stack needs to be crafted into joint instructions. The Court has put the instructions that haven’t been rejected in the black notebook which counsel will need to edit, harmonize, or delete if agreement can be made among the substantially similar instructions offered by opposing counsel. The Court will review the joint instructions at 1:30 p.m. [] . . . [] The Court will have the jury decide the legal issues first along with advisory findings regarding equitable issues. Counsel are to meet and confer and submit a proposed special verdict form with advisory findings at 1:30 p.m.”
Counsel told the court on August 25 that they had been working on the instructions and had agreed on a number of them but that they had “not attempted yet at all to discuss the special verdict form.” Briggs noted that the court had rejected 48 of the proposed instructions. (Except for 12 proposed and rejected instructions attached to Manzarek and Krieger’s Notice of Refused Jury Instructions, the record does not reveal what instructions any party requested that the court did not give.) There was no further discussion of the “legal versus equitable” issue. All agreed that counsel would continue to work on the instructions overnight.
The jurors returned the next day. The court explained that only some of the jury instructions were ready. The court read those instructions to the jury and then excused them for the day. The next day, with the jurors waiting, the court and counsel discussed the instructions some more. There still was no discussion of which issues and claims were legal and which were equitable, or which matters the jury would decide and which the court would decide. Counsel then argued nonsuit motions. The court brought in the jurors, read the rest of the instructions to them, and excused them for the weekend.
In the instructions, the court told the jurors that they were to decide “whether or not one or more partnerships existed in this case,” who the partners were, how they had decided to make decisions for the partnership(s), and whether the partnerships still existed. The court gave the jury a number of instructions on the trademark claims, including one entitled “Trademark Damages – Defendants’ Profits.” The court told the jury, “Plaintiffs have elected not to seek such damages. [There seemed to be no antecedent to “such.”] Instead, plaintiffs seek two other remedies available to them. These are injunctive relief and defendants’ profits. [] In lieu of actual damages, the plaintiffs, or the partnerships on whose behalf they have sued, are entitled to any profits earned by the defendants that are attributable to the infringements which the plaintiffs prove by a preponderance of the evidence.” The instructions went on to explain the calculation of profits (gross revenue minus expenses), apportionment of gross profits, and permissible and impermissible deductions. The court instructed the jury, “After you have calculated the amount of the defendants’ net profits attributable to the infringement, you may award the plaintiffs or the partnerships on whose behalf they sue, an amount greater than the net profit amount under certain circumstances[,]” for example, if the “calculations [were] imprecise . . . due to the defendants’ conduct.”
On Densmore’s and the Estate’s claims for breach of contract, the court gave the jurors CACI No. 300, as modified. That instruction laid out the parties’ contentions, including the plaintiffs’ claim that “breach of the oral or implied partnership agreements [ ] caused them harm for which defendants Ray Manzarek and Robby Krieger should pay.” The court also gave the jury CACI No. 303, as modified. It instructed them that, to “obtain relief from defendants” for breach of contract, Densmore and the Estates had to prove five elements; element five was that they “were harmed by [Manzarek and Krieger’s] failure” “to do something that the contract required . . . them to do . . . .”
The court also instructed the jury on “damages for misappropriation of name or likeness” on the Estates’ cause of action for violation of the post-mortem right of publicity. The instruction explained that “damages” was “money [in an amount that would] reasonably compensate [the Estates] for their harm.”
On Manzarek and Krieger’s cross-claim for breach of the covenant of good faith, the court gave the jury CACI No. 325, as modified. It explained that the cross-complainants had to prove five elements, including “harm” from Densmore’s conduct.
On Monday, August 30, and Tuesday, August 31, 2004, counsel presented closing arguments. Mandel told the jury that Manzarek and Krieger had stolen from the partnership and that they should have to “give the money back.” Mandel argued that Manzarek and Krieger had “made a bundle,” “a small little fortune,” that they had “grossed $ 8 1/2 million.” Mandel asked the jurors to look at the exhibits concerning Manzarek and Krieger’s concert performances; he said they had “made $2.2 million from touring activities,” $300,000 from a European production, and $250,000 in tax credits. Mandel told the jurors that Manzarek and Krieger “should be compelled to give up the profits they made in favor of the partnerships who own the identity they have stolen”: “That’s the law. That’s the right thing to do. And that’s what we ask you to do.”
Jeffrey Forer, counsel for the Estates, told the jury that his clients had been “harmed” in monetary terms, that Manzarek and Krieger “owe[d] [the Estates] at least $400,000,” and that the jurors should “make them pay.” Forer referred the jurors to exhibits showing receipts and expenses for the concert tours and said that Manzarek and Krieger had grossed “close to $9 million in total.” Forer then spoke at length about the revenues, expenses, and calculations, recalling exhibits and testimony and challenging Manzarek and Krieger’s profits calculation.
In his closing on behalf of Manzarek and Krieger, Briggs disputed the plaintiffs’ profit calculation. Briggs said, “[T]hey’re asking you to award Mr. Densmore [$] 3.3 million or $3.5 million.” But, Briggs argued, Manzarek and Krieger “put in their pockets” only $439,000 each.
Closing arguments continued on September 1, 2004. Before the jurors were brought in, Mandel told the court that he was “becoming more and more intrigued with the idea of a simple general verdict with respect to each cause of action.” Mandel said that the verdict form was “tied into what you think are equitable and not equitable. What you’re going to ultimately decide on yourself as opposed to the jury.” The court noted that it “did have that thought also.” The court again urged counsel to try to agree on a verdict form. Mandel said he thought the verdict form “really needs [the court’s] input.”
On or about September 2, 2004, Manzarek and Krieger submitted a 25-page proposed general verdict form. At the end of each section for each cause of action, the form asked, “[If you have found liability], what amount, if any, do you award?” The parties apparently never agreed on the verdict form. Nor did the trial court give the jury any document asking them to make advisory findings.
D.The Jury’s Question and Verdicts, and the Post-Trial Proceedings
The jury began deliberating on September 2, 2004. On September 13, the jurors sent out several questions. Two of the questions apparently concerned the use of the word “harm” in the jury instructions. Mandel noted that the questions perhaps arose “because we ended up using a general verdict form and because the issue of equitable and non-equitable issues was hazy.” Mandel argued,
“I think the proper answer to question no. 4 is to say that harm includes any amounts by which the defendants have been unjustly enriched. . . . [] They’re wrestling with concepts of harm. While the disgorgement and the unjust enrichment are equitable remedies that the court will deal with, I think they need to understand for purposes of this that includes that. [] Then the court will deal with whatever the amount. They can put the amount in. The court will deal [with] whether it’s right or wrong. But it’s not a damage issue per se. But it is a harm issue. And the harm results from the failure to abide by the contractual obligation resulting in the unjust enrichment of the defendants.”
On behalf of Manzarek and Krieger, Briggs disagreed:
“Your Honor, this is clearly a breach of contract claim. That is for the province of the jury. The jury has been instructed pursuant to the instruction that they’re requesting which is the essential elements of a breach of contract. That is not an equitable remedy[;] rather [it] is one that the jury decides.”
The court stated, “This is my suggestion: There’s so much that they’ve asked for. Why don’t we slowly look at this because I’d like to look at your original briefs when this whole issue of contract versus equitable. I think we can work this out. And interesting to see what they come up with.”
The court then permitted counsel to reopen argument. Mandel argued, “Question No. 5 is a significant issue, and that is that the plaintiffs were harmed by the failure. . . . [] . . . Harm in the context of this lawsuit does not necessarily mean economically damaged. It doesn’t mean that we have to show that John lost money . . . as a result of either of the breaches that we’ve described. [] We have to show that John or the partnerships were harmed. We think that they were harmed because what’s happened is one form of harm is that the alleged wrongdoer has done something wrong and has benefitted at the expense of the person who is complaining or the partnership who is complaining. [] And so we have asked as you all well know that the defendants be held to be unjustly enriched. They have profited to the tune of however you do the calculation, [$]2 1/2 to $3 million. . . . As a consequence of not complying with the provisions of the partnership agreement, they have profited. And they ought not be entitled to keep their profits because that would be unjust and improper. . . . [] . . . [T]he defendants have profited to the tune of roughly $3 million. They ought not keep that in light of their own failure to adhere to the contract. And that’s the amount that should be awarded either in favor of John or in favor of the partnership as the court will determine at such time as the court considers everything that is going on and we deal with the other issues that are in this case.”
Briggs then addressed “[t]he question of damages, contract damages.” He said, “Mr. Mandel gets up and tells you that you can give damages for harm even though you haven’t really lost anything out of your pockets. Well, let’s think about that.” Briggs argued that Densmore didn’t play with the band and that he understood that he therefore would not be paid. Briggs discussed unjust enrichment and argued that Densmore had told Manzarek and Krieger that they could perform without him.
In rebuttal, Mandel argued that the issue was not “you don’t play, you don’t get paid”: “By breaching the agreement, the defendants profited by undertaking conduct that they were not permitted to do. [] So should they be entitled to keep that money? No. The law says if you’re unjustly enriched, you have to – what we say disgorge, give up the profits that you’ve earned. That’s what the harm is. . . . [] . . . [] So I urge you to decide whatever you may decide. That’s your job, and we’ve invested in you to do that. But the issue of breach is different than the issue of harm. Harm is as we’ve discussed, the disgorgement, economic benefit.”
On September 27, 2004, the jury rendered its verdicts. On Densmore’s claims, the jury found in favor of Manzarek and Krieger on the causes of action for violation of the Lanham Act, common law unfair competition, violation of Business and Professions Code section 17200, and breach of oral partnership agreements. The jury found in Densmore’s favor on the causes of action for breach of the 1971 written agreement and breach of fiduciary duty. On both of those claims, the verdict form asked the jury, “[W]hat amount, if any do you award? $____.” On both causes of action, the jury wrote, “$0.” On the Estates’ claims, the jury found in Manzarek and Krieger’s favor on the causes of action for violation of the Lanham Act, common law trademark infringement, common law unfair competition, violation of Business and Professions Code section 17200, state trademark dilution, breach of contract, and breach of implied contract. The jury found in the Estates’ favor on the causes of action for violation of the post-mortem right of publicity and for breach of fiduciary duty. As it did on Densmore’s claims, the jury wrote “$0” in response to the question “[w]hat amount, if any, do you award?”
On Manzarek and Krieger’s cross-complaint, the jury found Densmore liable for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, and promissory estoppel. The jury, again, answered “$0” when asked “[w]hat amount, if any, do you award?” The jury found Densmore not liable on the claim for violation of Business and Professions Code section 17200.
The court set a court trial “on the remaining equitable causes of action” and instructed counsel to submit proposed statements of decision as well as “position papers” on “(1) the jurors’ verdict, (2) what remains to be decided, and (3) the party’s position as to how the Court should rule.” Manzarek and Krieger filed a 39-page “Brief re: Court Trial” on October 18, 2004. Densmore and the Estates filed a 39-page “Position Paper” on October 20, 2004. Manzarek and Krieger filed a “Further Response to Plaintiffs’ Position Paper” on November 5, 2004. On November 9, 2005, counsel appeared and argued at great length. The court took the matter under submission. On February 8, 2005, the court issued an order calling for additional briefing on a number of issues. The court asked the parties “to state their positions, citing relevant case authority, as to each cause of action separately, in support of their position as to whether the specific action is a legal or equitable action.” The court also asked for supplemental briefing on whether Manzarek and Krieger were “entitled to a jury trial under the Lanham Act”; whether, if so, the court could “deviate [presumably, from the jury’s verdict] on related causes of action involving similar elements”; and whether -- given the jury’s rejection of the plaintiffs’ Lanham Act claim -- the court was “bound to rule in equity in a like manner as to the Cause of Action for False Advertising, in Violation of Business and Professions Code Section 17500?”
Manzarek and Krieger filed their supplemental brief on February 18, 2005. Densmore and the Estates apparently filed their supplemental brief the same day. Both sides filed reply briefs on February 25, 2005. The court issued a tentative statement of decision and conducted a further hearing on June 16, 2005. The court again took the matter under submission.
E. The Trial Court’s Statement of Decision
The court filed its final statement of decision on July 21, 2005. The court concluded that Densmore and the Estates’ Lanham Act claim was a legal claim; it therefore entered judgment for Manzarek and Krieger in accordance with the jury’s verdict. The court also entered judgment for Manzarek and Krieger -- consistent with the jury’s verdict -- on Densmore’s causes of action for common law unfair competition, violation of Business and Professions Code section 17200, and breach of the oral partnership agreements. On Densmore’s cause of action for breach of the 1971 written agreement, the court agreed with the jury’s verdict that Manzarek and Krieger had breached the agreement. But the court refused to accept the jury’s award of zero dollars. The court said that “damages” and “harm” were not the same thing. (The special verdict form did not use either word. It asked the jurors what “amount, if any,” they “award[ed]” to Densmore.) The court apparently concluded that it could find “harm” and order “[t]he equitable remedies of disgorgement of profits and a permanent injunction,” “notwithstanding the jury’s finding of no damages.” The court cited no authority for this conclusion. The court reached the same result on Densmore’s cause of action for breach of fiduciary duty.
On the Estates’ complaint, the court entered judgment for Manzarek and Krieger in accordance with the jury’s verdicts on the causes of action for violation of the Lanham Act, common law trademark infringement, common law unfair competition, violation of Business and Professions Code section 17200, state law trademark dilution, and breach of express and implied in fact contracts. On the Estates’ cause of action for breach of fiduciary duty, the court, again, ordered a permanent injunction and “disgorgement of profits” notwithstanding the jury’s verdict awarding zero dollars. On the cause of action for violation of the statutory post-mortem right of publicity, the court declined to follow the jury’s award of zero damages even though it found the claim to be a legal claim. The court awarded statutory damages of $750.
On the cause of action for violation of Business and Professions Code section 17500 (which all parties agreed was equitable), the court found Manzarek and Krieger “liable for false advertising.” The court did not explain how it squared this conclusion with the jury’s verdict on the Lanham Act, unfair competition, dilution, and section 17200 claims – or whether it believed it was free to disregard the jury’s verdicts because the section 17500 cause of action was equitable. On the Estates’ remaining causes of action, the court ordered an accounting and disgorgement of the monies it deemed held by Manzarek and Krieger in constructive trust.
On Manzarek and Krieger’s cross-complaint, the court entered judgment in Densmore’s favor on all causes of action, notwithstanding the jury’s verdict. On the claims for breach of fiduciary duty and of the covenant of good faith, the court stated that “in the absence of any money damages, defendants have failed to demonstrate their entitlement to any relief.” Even though the jury found for Manzarek and Krieger on their claim against Densmore for promissory estoppel, the court treated that verdict as advisory and declined to follow it.
The trial court permanently enjoined Manzarek and Krieger from performing as The Doors, The Doors of the 21st Century, or under “any other name that includes the words The Doors.” After a later hearing on accounting issues, the court ordered Manzarek and Krieger to disgorge $3,282,274 in profits from their performances.
GOVERNING LAW
“ ‘The right to trial by jury is a basic and fundamental part of our system of jurisprudence. [Citation.] As such, it should be zealously guarded by the courts. . . .’ ” (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 862-863 (Van de Kamp), quoting Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654.) “ ‘In case of doubt, therefore, the issue should be resolved in favor of preserving a litigant’s right to trial by jury. [Citations.]’ [Citations.] Denial of the right to trial by jury is an act in excess of the court’s jurisdiction and is reversible error per se.” (Van de Kamp, supra, 204 Cal.App.3d at p. 863.)
The Constitution guarantees a jury trial in actions triable by jury at common law. (Cal. Const., art. I, § 16; C&K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8 (C&K Engineering).) “Generally speaking, this means that legal as distinguished from equitable actions are triable by jury.” (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 94, p. 113; see also C&K Engineering, supra, 23 Cal.3d at p. 8 [“As a general proposition, ‘[T]he jury trial is a matter of right in a civil action at law, but not in equity’ ”].) Our Supreme Court has observed that the “distinction between [legal and equitable actions and] the two classes of remedies is more or less arbitrary and groundless.” (Philpott v. Superior Court (1934) 1 Cal.2d 512, 515.) “Since the distinctions between actions at law and proceedings in equity have been abolished, considerable difficulty has often been encountered in defining them. . . .” (DeGarmo v. Goldman (1942) 19 Cal.2d 755, 759.)
“In classifying an action as legal or equitable, the court will look to its substance, i.e., to the nature of the right involved and the remedy sought. The label or title of the complaint is never controlling.” (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 117, p. 183.) The court must examine all of the pleadings – not just the complaint, but the answer and any cross-complaint as well – “to determine whether the case is at law or equity, or a combination of both.” (3 Witkin, supra, Actions, § 116, p. 182.) “ ‘ “[T]he court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case – the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law.” ’ ” (C&K Engineering, supra, 23 Cal.3d at p. 9.) “The fact that trial by jury is jealously preserved as a matter of right dictates that the mere existence of a remedy in equity cannot operate to defeat a right to proceed at law. It is only where the issues to be tried are exclusively equitable in nature that a suitor is deprived of a right to a jury trial.” (Ripling v. Superior Court (1952) 112 Cal.App.2d 399, 408 [incompetent’s guardian sued alleged trustee/fiduciary for money had and received, and prayed for accounting, declaration of constructive trust, and money judgment; defendant was entitled to jury trial because plaintiff essentially elected to sue on contract-based debt].) “[E]quitable principles may be applied in an action at law without changing the character of the action.” (3 Witkin, supra, Actions, § 118, p. 185, citing Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671 (Raedeke).)
Lawsuits for breach of contract, money due under a contract or statute, injuries to person, reputation, or property, and quasi-contractual obligations and restitution are legal actions. (7 Witkin, supra, Trial, § 94, p. 114 [citing cases]; see also Civ. Proc. Code, § 592 [“In actions . . . for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury . . . .”].) Lawsuits for injunctions are equitable. (3 Witkin, supra, Actions, §§ 120-121, at pp. 186-188.) Where the action is hybrid, “raising both legal and equitable issues, a party is entitled to a jury trial of the severable legal issues.” (7 Wikin, supra, Trial, § 96, p. 115; see also Van de Kamp, supra, 204 Cal.App.3d at p. 863 [“Where a complaint states both legal and equitable causes of action, [litigants] are entitled to a jury trial on the legal causes of action”].) “n a case involving both legal and equitable issues, the trial court may proceed to try the equitable issues first, without a jury (or . . . with an advisory jury)”; “if the court’s determination of those issues [also disposes] of the legal issues, nothing further remains to be tried by a jury.” (Raedeke, supra, 10 Cal.3d at p. 671.) If the legal and equitable issues are not severable, the right to a jury is determined under the “gist of the action” test. (See, e.g., Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 622-623 [lawsuit for damages for conversion and misappropriation; defendant asserted equitable defense of unclean hands; court properly submitted entire case to jury because equitable defense was “intertwined” with legal claim and raised questions of fact and credibility properly submitted to jury].)
Where, however, the court tries the legal issues first to a jury, or refers factual issues to the jury, it cannot then disregard the jury’s findings or verdict. Hughes v. Dunlap (1891) 91 Cal. 385 (Hughes) states this rule and remains the leading case nearly 120 years after our Supreme Court decided it. In Hughes, the plaintiff alleged trespass by the defendant, and sued for damages as well as an injunction. The court impaneled a jury on the defendant’s motion and referred “certain issues of fact” to the jury. The jury returned findings and a verdict for the defendant, finding that the “plaintiff had suffered no damage.” The trial court “refuse[d] to adopt” the jury’s findings and verdict; it found that the plaintiff had been damaged by defendant’s acts. The California Supreme Court reversed. The court said, “An action to recover damages for past trespasses is as clearly a legal remedy as any that could be named; and it is an action in which a party cannot be deprived of a jury trial.” (Hughes, supra, 91 Cal. at p. 388.) The court therefore reversed the trial court’s judgment for the plaintiff. The court queried, “[D]oes the fact that [plaintiff] also prayed for an injunction take away from [defendant] the right to have the real issues of fact tried by a jury?” (Id. at p. 389.) The court continued: “[W]hen the asserted rights upon which any remedy [for plaintiff] must rest are legal rights, and cognizable in a court of law, must not those rights be determined according to the methods of a common-law court?” (Ibid.) (See also Farrell v. City of Ontario (1919) 39 Cal.App. 351, 354-355 [plaintiff alleged defendant diverted water onto his property; prayer for damages and injunction; trial court disregarded jury verdict for plaintiff and entered judgment for defendant; reversed; by joining “his two actions in one,” plaintiff “should not be held to have thereby forfeited his right to a jury trial of the legal issues”]; Robinson v. Puls (1946) 28 Cal.2d 664, 665-666 [complaint for declaratory relief, cancellation of notes, accounting or, in alternative, for money judgment; held error to deny jury trial]; Peterson v. Peterson (1946) 74 Cal.App.2d 312, 321 [complaint to cancel deed of trust, quiet title, recover reasonable rental value of property and for damages for fraud; held error to deny jury trial]; Pacific Western Oil Co. v. Bern Oil Co. (1939) 13 Cal.2d 60, 66 [injunction against removal of oil by drilling, and damages; denial of jury was error]; cf. Raedeke, supra, 10 Cal.3d 665, 671-675 [action to set aside foreclosure sale and for damages for conversion of personal property; plaintiffs ultimately presented their case to jury on theory that defendant lender had breached oral contract to postpone the sale; trial court treated as merely advisory the jury’s special finding that lender had agreed to postpone sale; court’s own finding to contrary and invalidation of monetary jury verdict for plaintiff reversed; while action to set aside foreclosure is equitable, suit to recover damages for breach of contract or fraud is action at law with jury trial right].)
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:25:57 GMT
DISCUSSION The gist of the lawsuits brought here by Densmore and the Estates was twofold: (1) They claimed that Manzarek and Krieger breached various oral partnership agreements and the 1971 written contract by performing as The Doors without the unanimous consent of the partners; and (2) they claimed that Manzarek and Krieger engaged in unfair competition and trademark infringement by performing as The Doors without Densmore and Morrison. Both of these sets of claims are legal. (See generally Ceriale v. Superior Court (1996) 48 Cal.App.4th 1629, 1634-1635 [plaintiff who sued her former attorney was entitled to jury trial on claims for breach of contract, breach of fiduciary duty, and negligence; trial court erred in bifurcating case and trying some issues as equitable; “fact that equitable principles may come into play during the trial . . . does not abrogate the constitutional jury trial right”]; Collins Development Co. v. D.J. Plastering, Inc. (2000) 81 Cal.App.4th 771, 777 [trial court’s procedure of deciding allocation issue itself in lawsuit by indemnitee for contractual indemnity was “plainly defective”; because “claim was on a contract, [cross-defendant] was entitled to have the allocation portion of that claim tried by the jury”]; Dairy Queen v. Wood (1962) 369 U.S. 469 [action for injunction, accounting, and damages for breach of trademark licensing agreement triable by jury as matter of right].) A. The Trial Court Erred in Awarding Monetary Relief to Densmore and the Estates After the Jury Determined That They Were Entitled to “$0” Densmore’s causes of action for breach of the 1971 agreement and breach of fiduciary duty asserted legal rights. So did the Estates’ cause of action for breach of fiduciary duty. The trial court properly submitted those claims to the jury. The jury found in favor of Densmore and the Estates. The verdict form asked what amount, if any, they awarded. The jurors wrote “$0.” The trial court disregarded those $0 verdicts in awarding some $3.2 million to Densmore and the Estates. That ruling violated Manzarek and Krieger’s jury trial right. The court said the jury’s award of zero dollars did “not conclusively mean that the jury [had] found no harm.” The court said “damages” and “harm” are not the same thing, and it found that Densmore had suffered “harm.” Perhaps – although it did not say so -- the trial court reasoned as follows: (1) The jury instruction on Densmore’s breach of contract claim told the jurors that Densmore had to prove “harm” as one element of his cause of action. (2) The jury returned a verdict for Densmore on his breach of contract claim. (3) Therefore, the jury must have found that Densmore was “harmed.” But a conclusion that Densmore was “harmed” does not permit the court to disregard the jury’s award of zero damages on an indisputably legal claim for breach of contract. It is entirely permissible for the jury to find that Manzarek and Krieger breached the 1971 agreement but that Densmore is not entitled to any monetary award, whether consisting of a disgorgement of profits or any other calculation. Densmore and the Estates argue that “the jury was advised that the trial court would later determine whether plaintiffs were entitled to recover defendants’ ill-gotten gains,” and that “[n]o instructions concerning money damages were tendered or submitted to the jury.” The record belies these assertions. As detailed above, Mandel told the jury in his closing arguments that Manzarek and Krieger should have to “give the money back”: “[T]hat’s what we ask you to do.” Forer asked the jurors to “make them pay.” Both Mandel and Forer talked about receipts, expenses, and profits calculations. The trial court gave the jury a series of instructions including one entitled “Trademark Damages – Defendants’ Profits” and another entitled “Wil[l]ful or Intentional Infringement Damages in the Absence of Profit”; it told the jurors that they could award “monetary relief” if Manzarek and Krieger willfully infringed the mark even if they “failed to profit.” When the jury sent out a question about the meaning of the word “harm” in the instructions, the court reopened argument: Mandel argued that Manzarek and Krieger had been unjustly enriched and had “profited to the tune of however you do the calculation, 2 1/2 to $3 million . . . .” Neither the trial court nor the lawyers ever told the jury that it should decide only whether Manzarek and Krieger had breached the various agreements and infringed the mark, and that the court would decide how much money Densmore and the Estates should get. If that had been the understanding – or the court’s ruling over Manzarek and Krieger’s objection – there would have been no need for the jury to hear testimony about Manzarek and Krieger’s receipts and expenses. There would have been no need for counsel to argue to the jury about how to calculate profits. There would have been no need for the court to instruct the jury on permissible and impermissible deductions, apportionment of gross profits, and the like. Densmore and the Estates called David Kirby, a talent agent who booked live performances for The Doors of the 21st Century, as a trial witness. Mandel went through a series of questions with Kirby about how much the band had received for performances in Europe, Asia, and elsewhere. The jury also heard extensive testimony from Alan Goldman and Thomas Vitorino, who essentially served as managers for the band, about “the numbers.” Counsel questioned Vitorino about the production grosses and nets from Manzarek and Krieger’s performances. Vitorino testified, for example, that he thought the band had gross receipts of about eight million dollars. Indeed, some of this questioning gave rise to a heated dispute between counsel: Manzarek and Krieger’s lawyer argued that the court should not permit counsel for Densmore and the Estates to ask Goldman about this financial information because it was a back-door attempt to inquire into matters bearing on punitive damages, which the court had bifurcated for trial. Mandel (Densmore’s attorney) and Forer (the Estates’ attorney) told the trial court that they wanted, and were entitled, to ask the witness what Manzarek and Krieger “gained” from their concert tour using the name The Doors. Mandel argued, “If we’re seeking and entitled to disgorgement and restitution, we’re entitled to know the amount of money that is involved. [] . . . [] We’re trying to get to a place of gross numbers. And presumably . . . I’ve been told, that the defendants then are going to try to knock down the gross numbers by showing their expenses of doing business.” If the court and not the jury were going to decide whether Densmore and the Estates should recover money and, if so, how much, these many hours of testimony before the jury would have been wholly unnecessary. Nor does any suggestion that the jury may have been instructed on trademark money damages but not on contract money damages make sense. Densmore and the Estates do not cite to a single page of the nearly 20,000-page record in which the jurors ever were told that they should calculate profits on the trademark and unfair competition claims, but that the court would calculate profits on the breach of contract and fiduciary duty claims. Densmore and the Estates seize on a single statement by Mandel in his supplemental closing argument after the jury asked about “harm.” Mandel told the jurors that Manzarek and Krieger had “profited to the tune of roughly $3 million,” that they should not be allowed to keep it, and that “that’s the amount that should be awarded either in favor of John or in favor of the partnership as the court will determine at such time as the court considers everything that is going on and we deal with the other issues that are in this case.” (Italics added.) This argument appears to refer to whether Densmore as an individual or Densmore on behalf of various partnerships would receive any award. And even if, by this comment, Mandel meant to say that the jurors were not to consider any monetary award, his statement was inconsistent with the hours of trial testimony and argument, as well as the jury instructions, in which Densmore and the Estates asked the jury to award lost profits. On the question of what the jurors were asked to do, what governs is not counsel’s peripheral remark during argument but the jury instructions and the verdict form. A passing comment by a lawyer in argument about which entity will get the money cannot trump the instructions and verdict form. The instructions and verdict form come from the court. They govern. Densmore and the Estates never objected to the verdict form. That form repeatedly asked the jurors what amount, if any, they awarded. It included a dollar sign with a blank space next to it for each cause of action. Densmore and the Estates do not like the zeros. But that is what the jury decided, and that is what should govern. Mandel also made an earlier comment during the court’s discussion with counsel about the jury question suggesting that Densmore and the Estates were proposing that whatever figure the jury put in the “$___” blank would be advisory only: “While the disgorgement and the unjust enrichment are equitable remedies that the court will deal with, I think [the jurors] need to understand for purposes of this that includes that. [] Then the court will deal with whatever the amount. They can put the amount in. The court will deal [with] whether it’s right or wrong.” But this is not how our process works. Manzarek and Krieger were constitutionally entitled to a jury trial on Densmore’s breach of contract claim. Densmore and the Estates cannot submit the matter to the jury, wait to see if they like the jury’s number, and then ask the court to disregard the verdict and to substitute another number if the jury’s vote is too low. In the same argument, Mandel said that the harm to Densmore “results from the failure to abide by the contractual obligation resulting in the unjust enrichment of the defendants.” This is a legal claim, and the court cannot ignore the jury’s award of zero dollars. The members of our community who diligently served as trial jurors in this case for nearly fourteen weeks would be startled to learn that their months of work counted for nothing. Densmore and the Estates sued and went to trial. A month into the jury trial, they raised for the first time their proposal that the court rather than the jury decide most of the case. Whether this conduct was inadvertent or by design, it left the trial court in a terrible spot. Sorting out the legal versus the equitable claims and arranging for advisory findings in a jury trial is an arduous task even when planned well in advance of jury selection. Here – for months after the trial ended – the parties still were fighting tooth and toenail about which claims were legal and which were equitable, which were for the court and which were for the jury. Regardless of who bears responsibility for this haphazard way of proceeding, the required result is the same: Having submitted the legal issues of breach of contract and breach of fiduciary duty to the jury, the trial court was obligated to give the jury’s verdict the respect it deserves. The jurors’ verdict was binding on the court and the parties. B. The Trial Court Properly Issued a Permanent Injunction The jury found that Manzarek and Krieger breached the 1971 contract as well as fiduciary duties to Densmore and the Estates. The trial court permanently enjoined Manzarek and Krieger from performing as The Doors or The Doors of the 21st Century. This was within the trial court’s power. Injunction is a typical form of equitable relief. (3 Witkin, supra, Actions, § 121, p. 187.) While the usual remedy for breach of contract is damages, “injunctions are occasionally granted in contract actions.” (3 Witkin, supra, Actions, § 120, p. 187.) “ final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant . . . [w]here the restraint is necessary to prevent a multiplicity of judicial proceedings.” (Civ. Code, § 3422, subd. 3.) If Manzarek and Krieger continued to tour as some variation of The Doors, Densmore and the Estates would have to file lawsuit after lawsuit to recover their profits. In these circumstances, injunctive relief is available. (Cf. Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.3d 571, 575 [breach of agreement to give writer-director of film screen credits; damages properly awarded for past damages, and specific performance granted to prevent future harm from exhibition of film without credits].)
C. Densmore and the Estates Lack Standing To Sue Under California Business and Professions Code Section 17500
The jury found against Densmore and the Estates on all of their causes of action for trademark infringement and unfair competition. The trial court, however, found for the Estates on their false advertising claim under Business and Professions Code section 17500. The court gave these reasons:
“By engaging in advertising which prominently displayed the logo of The Doors, in The Doors’ well-known type font, and minimizing in a different font the words “21st Century” or “of the 21st Century,” coupled with the use of the outtake photograph from the Strange Days album cover, and further permitting the dissemination of radio and television ads prepared by Bill Young Productions that identified the band as The Doors and the tour as the 21st Century Live tour, the defendants have engaged in false advertising.”
The court did not discuss the jury’s verdicts to the contrary or make any attempt to square its findings with those verdicts. As noted, the jury found in favor of Manzarek and Krieger on Densmore’s and the Estates’ claims for violation of the Lanham Act, common law trademark infringement, trademark dilution, common law unfair competition, and unfair competition in violation of Business and Professions Code section 17200. Any violation of California’s false advertising law necessarily violates California’s unfair competition law. (Arizona Cartridge v. Lexmark Intern., Inc. (9th Cir. 2005) 421 F.3d 981, 986.) The trial court instructed the jury that it could find that Manzarek and Krieger violated Business and Professions Code section 17200 if they (among other things) “engaged in unfair, deceptive, untrue or misleading advertising.” The jury obviously found that Manzarek and Krieger had not done so.
Nor did the court explain whether it found Manzarek’s and Krieger’s “advertising” to be false or, instead, true but misleading. (See generally Laster v. T-Mobile USA (S.D. Cal. 2005) 407 F.Supp.2d 1181 [California’s false advertising law prohibits not only advertising that is false but also advertising that, although literally true, is either actually misleading or has capacity, likelihood, or tendency to deceive or confuse public].) The standard of “likelihood or tendency to deceive or confuse the public” requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled. (People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006.) (Cf. Special Instruction No. 18.15: trial court instructed jury that, “n order to find for [Densmore and the Estates] in their action for trademark infringement, you must consider whether the defendants’ use of the names The Doors or The Doors of the 21st Century is likely to cause confusion about the source of the plaintiffs’ goods and services or of the defendants’ goods or services.”) What was false or misleading, exactly? Surely no one buying a ticket in the 21st century to see The Doors in concert would expect to see Jim Morrison perform. He has been dead for some 37 years. Indeed, Morrison vies with Janis Joplin, Jimi Hendrix, and John Lennon for the title of world’s most famous rock musician to have died young.
The parties agree that a lawsuit under Business and Professions Code section 17500 is an equitable one. The trial court therefore was free to decide the claim, even if its findings conflicted with the jury’s verdicts on similar causes of action. (See Hughes v. Dunlap, supra, 91 Cal. at p. 388 [“under our system a legal and equitable remedy may be sought in the same action; but each remedy must be governed by the same law that would apply to it if the other remedy had not also been asked for”].) But the Estate’s statutory false advertising claim fails for a different reason. Private individuals can sue under California’s Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) only if they have “suffered in injury in fact and [have] lost money or property as a result of” the unfair competition. (Bus. & Prof. Code, §§ 17204 [unfair competition in general], 17535 [false advertising in particular], as amended by Prop. 64, §§ 2, 5, & 6 (Nov. 2, 2004).) Here, the jury awarded zero dollars to the Estates on their claims. Nor did the Estates prove that they lost money or property from Manzarek’s and Krieger’s ads for their concerts. Mandel told the court before the trial started, and he told the jurors in his opening, that the plaintiffs were not claiming any harm to the catalogue.
D. The Trial Court Erred in Invalidating the Jury’s Verdicts for
Manzarek and Krieger on their Cross-Complaint
As noted, the jury found for Manzarek and Krieger on their cross-claims against Densmore for breach of fiduciary duty and breach of the duty of good faith and fair dealing. These were legal claims. The trial court, however, entered judgment for Densmore. The court stated that the jury had “awarded no damages” to Manzarek and Krieger and that, “in the absence of any money damages, [Manzarek and Krieger] [had] failed to demonstrate their entitlement to any relief. . . .”
The trial court applied a different rule to the cross-complaint than it applied to the complaints. On Densmore and the Estate’s claims for breach of contract and fiduciary duty, the court ruled that “zero monetary award” did not mean “no harm.” It apparently concluded that the jury must have found harm in returning verdicts for Densmore and the Estates, and so the court entered judgment for Densmore and the Estates. On Manzarek and Krieger’s cross-claims, however, the court said that a no-damages award by the jury meant that Manzarek and Krieger had not proved breach of fiduciary duty or of the covenant of good faith. The trial court did not give any reason for its application of these contrary rules. The jury instruction that the court gave the jurors on Manzarek and Krieger’s cause of action for breach of the covenant of good faith told them that Manzarek and Krieger had to show “harm”; there was no mention of “damages.” Either “harm” can exist without “damages” or it can’t. Either a plaintiff who has no damages but who has been “harmed” can recover for breach of contract or of the covenant of good faith or he can’t. What’s good for the goose is good for the gander. If the court could find an implicit jury finding of “harm” in the jurors’ verdict for Densmore on his breach of contract claim, then it should have found an implicit jury finding of “harm” in the jurors’ verdict for Manzarek and Krieger on their cross-claims.
CONCLUSION
The denial of a trial by jury to one constitutionally entitled to it constitutes a miscarriage of justice and requires a reversal of the judgment. (Collins Development Co. v. D. J. Plastering, Inc., supra, 81 Cal.App.4th at p. 778.) Having listened to all the evidence and seen all the exhibits and heard all the jury instructions and counsel’s arguments, the jury concluded that the parties had established certain legal claims but that the right “amount” to “award” to each was zero. The trial court, and this court, should honor that verdict. Respect for the role and power of the jury that labored for months on this case and rendered verdicts consistent with the facts and the law requires that the money judgments in favor of Densmore and the Estates be reversed.
EGERTON, J*
*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:26:28 GMT
Here is some media from the period of the appeal process and after the appeal had been ruled on.
No Doors without Morrison, court agrees
End of line for legal case by former band members
Friday, August 22, 2008
They called themselves The Doors of the 21st Century and toured the U.S. in 2002-3 playing songs such as Light My Fire.
But former Doors keyboardist Ray Manzarek and guitarist Robby Krieger were denied the right to use that name by lower courts and lost a bid to appeal their case in the California Supreme Court on Thursday.
Instead, they'll be performing under the name Riders on the Storm and paying up to $5 million US in compensation to other Doors members.
That $5 million US includes $2 million US in fees from their three-year legal battle with former drummer John Densmore, the parents of late singer Jim Morrison and the parents of Morrison's deceased wife, Pamela Courson.
It also includes a portion of the more than $8 million US they earned on the tour.
The dispute centres on a tour the pair began in 2002, with Ian Astbury, former lead singer of The Cult.
Densmore declined to join the tour and told Manzarek and Kreiger they could not use any imagery from The Doors, especially Morrison's image.
In 1970, the four original band members, including Morrison, signed an agreement that any business deal would require a unanimous vote of all The Doors.
That agreement has held and led to Densmore blocking any advertising using The Doors' songs, including offers from General Motors and iPod.
He has argued that Morrison opposed all endorsements and he wants to preserve that legacy.
Densmore agreed to the group playing The Doors' songs, but after the tour, filed suit, complaining the phrase "of the 21st Century" was often little more than fine print in advertisements and that the new band displayed Morrison's image dozens of times.
"You can't call yourselves The Doors because you can't have The Doors without Jim Morrison," Densmore's attorney, S. Jerome Mandel, said in his arguments.
In 2005, a judge agreed with Densmore and ordered the band to stop using The Doors in their name. He also awarded $3.2 million to Densmore and the parents as compensation for unauthorized use.
The tour revenue had gone to a separate company, The Doors Touring, and Densmore and the parents had not benefited.
The California Supreme Court upheld the $3.2 million award on Thursday, but the legal fees are still under appeal.
Morrison died in 1971 at age 27, after the band had a string of hits such as Break on Through, L.A. Woman and Riders on the Storm.
CBC (Canadian Broadcasting Co.)
By the Court's Order, 'the Doors' Can't Tour
In a victory for the estate of the late Jim Morrison, the California Supreme Court has slammed the Doors shut.
The court denied a petition by two of the surviving members of the Doors, keyboardist Ray Manzarek and guitarist Robby Krieger, to review a lower court's decision that blocked them from touring under the name of the band that rose to fame on the Sunset Strip in the 1960s and recorded dark hits such as "Light My Fire," "L.A. Woman" and "Riders on the Storm."
Manzarek and Krieger had toured with other musicians under the name the Doors of the 21st Century and advertised their shows with images of Morrison, the decadent rock icon who died in 1971. The use of the name led to joint legal action by the Morrison family, the family of Pamela Courson (Morrison's common-law wife, who died in 1974) and the third surviving Doors member, drummer John Densmore.
The unified front of Manzarek and Krieger has fought other battles with Densmore, especially over the use of Doors songs in television commercials. Corporations routinely pay millions to use signature classic-rock hits in commercials, but Densmore, citing the wishes of his old friend Morrison, has vetoed the idea of "renting out" Doors songs, even for eight-digit paydays.
That veto power dates back to the 1960s, when the four members of the Doors agreed that business deals required unanimity in their ranks. The band broke up not long after Morrison's death, and today their still-lucrative music and licensing interests are controlled by a four-way partnership: the three surviving band members and a final vote shared by the Morrison and Courson families.
That struggle over commercials had Densmore on his own, but when Manzarek and Krieger toured with the old hits and a new version of the Doors name, the Morrison and Courson families joined the drummer in protest. The families and Densmore also argued that the profits of that tour should have been shared with the Doors partnership.
Los Angeles Superior Court Judge Gregory W. Alarcon ruled in July 2005 that Manzarek and Krieger could not use the Doors name without written consent from the partnership. The defendants' appeal ended when the state's highest court denied the petition.
Densmore said Tuesday that he was deeply relieved: "A five-year cloud has passed over my head."
August 21 2008
Geoff Boucher, Staff Writer Los Angeles Times
Legal dispute among The Doors nears end
By PAUL ELIAS SAN FRANCISCO (AP) —
The end is near for a bitter legal dispute between the three surviving members of The Doors now that the California Supreme Court has refused to take up their case.
Keyboardist Ray Manzarek and guitarist Robby Krieger are on the hook for more than $5 million after they were found by lower courts to have improperly invoked The Doors' name and images during a 2003 concert tour. After the high court declined to hear their appeal on Aug. 13, they'll have to pay up to drummer John Densmore, the parents of the deceased lead singer Jim Morrison and the parents of Morrison's deceased wife, Pamela Courson, who died in 1974.
The case goes back to 2002, when Densmore declined an offer from the other two to go on a concert tour as The Doors. Densmore said he didn't object to Manzarek and Krieger touring and singing The Doors' songs, as long as they didn't call themselves The Doors, use the group's distinctive logo or any other Morrison-era imagery.
"You can't call yourselves The Doors because you can't have The Doors without Jim Morrison," Densmore's attorney S. Jerome Mandel said.
Densmore and the parents sued Manzarek and Krieger in 2003 after the two began touring the country with Ian Astbury, former lead singer of The Cult, and calling themselves The Doors of the 21st Century.
Densmore complained that the phrase "of the 21st Century" was often little more than fine print in advertisements and that the new band displayed Morrison's image dozens of times during concerts. The tour grossed $8 million and netted $3.2 million, which went to the new band's company called Doors Touring, Inc. and none of which went to Densmore or the parents.
In 2005, a judge ordered the new band to stop using "The Doors" in any form and ordered Manzarek and Krieger to pay Densmore and the parents a combined $3.2 million, plus $2 million in legal costs.
An appeals court upheld the $3.2 million award, and is considering Manzarek and Krieger's appeal of the $2 million in legals costs as excessive.
"It's really disappointing," said lawyer Mark Poster, who represented Manzarek and Krieger. He said the two pursued the appeal so vigorously because a judge had overruled a jury decision in awarding Densmore damages.
The dispute stems from a 1970 agreement signed by the four original band members, including Morrison, that any business deal would require an unanimous vote of The Doors. The agreement was reached after Morrison and three others got into a "violent disagreement" over using "Light my Fire" in a Buick television commercial, according to the appeals court's decision in May backing Densmore.
"While the three partners had agreed to the commercial, Morrison vehemently disagreed and the commercial was not done," the appeals court wrote.
Since Morrison's death in Paris in 1971, the remaining band members and the parents split Morrison's share of the still-flourishing sale of The Doors' music and memorabilia. Each partner has veto power over business deals.
Seven years ago, for instance, General Motors offered the partnership $15 million to use "Light My Fire" to sell Cadillacs, and everyone but Densmore wanted to take the deal. Densmore also refused an endorsement deal offered by iPod maker Apple.
"Morrison had been adamant against doing commercials and Densmore wanted to honor Morrison's memory," the appeals court noted in its May ruling.
The Los Angeles-based band, which was inducted in 1992 into the Rock and Roll Hall of Fame, had a string of hits in the 1960s including "Break on Through," "L.A. Woman" and "Riders on the Storm."
Manzarek and Krieger now call themselves Riders on the Storm and continue to perform The Doors' songs live.
Doors duo face £2.5m bill after row
A long-running legal dispute between the three surviving members of The Doors is coming to a close with two of them facing a bill of around £2.5 million.
Keyboard player Ray Manzarek and guitarist Robby Krieger have been refused an appeal after Californian courts ruled they improperly used the group's name and images during a 2003 concert tour.
They will now have to pay out to drummer John Densmore, the parents of the dead lead singer Jim Morrison and the parents of Morrison's dead wife, Pamela Courson, who died in 1974.
The Los Angeles-based band had a string of hits in the 1960s including Break On Through, L.A. Woman and Riders On The Storm.
The case goes back to 2002, when Densmore declined an offer from the other two to go on a concert tour as The Doors. Densmore said he did not object to Manzarek and Krieger touring and singing The Doors' songs, as long as they did not call themselves The Doors, use the group's distinctive logo or any other Morrison-era imagery.
Densmore and the parents sued Manzarek and Krieger in 2003 after the two began touring the country with Ian Astbury, former lead singer of The Cult, calling themselves The Doors of the 21st Century.
Densmore complained that the phrase "of the 21st Century" was often little more than fine print in advertisements and that the new band displayed Morrison's image dozens of times during concerts.
In 2005, a judge ordered the new band to stop using "The Doors" in any form and ordered Manzarek and Krieger to pay Densmore and the parents a total of £2.5 million in compensation and legal costs.
The dispute stems from a 1970 agreement signed by the four original band members, including Morrison, that any business deal would require an unanimous vote of The Doors. The agreement was reached after Morrison and three others got into a "violent disagreement" over using Light my Fire in a TV commercial.
Since Morrison's death in Paris in 1971, the remaining band members and the parents split Morrison's share of the still-flourishing sale of The Doors' music and memorabilia. Each partner has veto power over business deals.
The Lancashire Evening Post: Aug 23rd 2008
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:27:14 GMT
Wall Street Journal.com Law Blog August 21, 2008, 10:49 am Cali High Court Slams Doors On Band Members Posted by Dan Slater Of our elaborate plans, the end Of everything that stands, the end No safety or surprise, the end Ill never look into your eyes…again — “The End” by The Doors It’s the legal end for Ray Manzarek and Robbie Krieger. The California Supreme Court has denied a petition to review a lower court’s decision that Manzarek and Krieger — the keyboardist and guitarist, respectively, of The Doors — be enjoined from performing, touring, promoting their band and otherwise holding themselves out to be The Doors, The Doors of the 21st Century or any other name that includes the words The Doors without the written consent of all partners of the Doors partnership. Here’s the PR Newswire report. www.marketwatch.com/news/story/co.....D&dist=hpprThe court also permanently enjoined Manzarek and Krieger from using the name, likeness, voice or image of Jim Morrison to promote their band or their concerts, and ordered that Manzarek and Krieger return all profits earned by them to the rightful owner of The Doors name, a partnership composed of the three surviving band members and the successors to Jim Morrison, all of who were determined to be partners with a veto right in partnership matters. The plaintiffs in the litigation were the band’s drummer John Densmore, the third surviving member of The Doors, and the Estates of Jim Morrison and Pam Courson, who was married to Morrison at the time of his death, at age 27, in a Paris apartment. Manzarek and Krieger are each 25 percent partners in The Doors partnership and will therefore share in the profits they’re required to disgorge to the partnership. The lawyer for Densmore and the Coursons, Jerome Mandel of Mandel, Norwood & Grant, said: “This dispute was about protecting the integrity and legacy of what The Doors stood for . . .All decisions involving the group had to be unanimous, especially when it came to any actions that were inconsistent with Jim Morrison’s strong stand against the commercialism of their name.” Jeffrey Forer, of Hinojosa & Wallet, repped the Morrison Estate at the trial. On appeal, Forer was joined by Louis A. Reisman and Blake Rummel of Weinstock, Manion, Reisman, Shore & Neumann. (Reisman is the general counsel for the Morrison family.) The defendants were repped by Lavely & Singer. Comment by Roll roll roll you gotta thrill my soul . . . alright. - August 21, 2008 at 11:16 am And the Door Prize goes to: all the lawyers who earned legal fees for representing the parties in this unnecessary lawsuit. Unnecessary because the former keyboardist and guitarist of the Doors had to have known from the start that they would be legally squashed trying to cash in on using the Doors name on their own. Comment by Faustus - August 21, 2008 at 11:17 am Courant News The Doors That Were Aren't Anymore By Eric R. Danton on August 21, 2008 10:42 AM A few years ago, when we carelessly referred to the surviving members of the Doors as "The Doors," we got a nasty letter from some lawyer instructing us that henceforth, upon threat of rendition to a black site in an unspecified Eastern European country, that musical group should only be called "The Doors of the 21st Century." Now they can't even be called that, according to the California supreme court. Earlier this month, the court denied a petition to review a lower court's ruling that organist Ray Manzarek and guitarist Robbie Krieger, two of the surviving members of the legendary rock band The Doors, cannot perform, tour, promote the band or otherwise represent themselves as "The Doors" or "The Doors of the 21st Century" without written consent from "all partners of the Doors partnership" -- namely, drummer John Densmore, who objected to his former bandmates' decision to tour a few years ago, and the estates of singer Jim Morrison and his wife, Pam Courson, respectively. Further, Krieger and Manzarek are required to split with Densmore and the estates all profits they made using the Doors' name, and they're prohibited from using the name, likeness or voice of Jim Morrison to promote their band or their concerts. Nice one, Densmore. Nothing's more rock 'n' roll than suing your bandmates for money you weren't interested in making in the first place. Market Watch The Wall Street Journal Court Slams Two of the Surviving Members of The Doors Aug. 21, 2008 LOS ANGELES, Aug 21, 2008 /PRNewswire via COMTEX/ -- On August 13, 2008, the California Supreme Court denied a petition to review a lower court's decision that Raymond Manzarek and Robert Krieger, two of the surviving members of the legendary rock band The Doors, are to be enjoined from performing, touring, promoting their band and otherwise holding themselves out to be The Doors, The Doors of the 21st Century or any other name that includes the words The Doors without the written consent of all partners of the Doors partnership. The court also permanently enjoined Manzarek and Krieger from using the name, likeness, voice or image of Jim Morrison to promote their band or their concerts, and ordered that Manzarek and Krieger return all profits earned by them to the rightful owner of The Doors name, a partnership composed of the three surviving band members and the successors to Jim Morrison, all of who were determined to be partners with a veto right in partnership matters. The Supreme Court's refusal to hear the case ends the appeal of the trial court's ruling handed down by Superior Court Judge Gregory W. Alarcon on July 21, 2005, in connection with a dispute over the relationships and agreements among the various parties and entities that have an interest in the assets and the business of The Doors. The 2004 trial and jury deliberations took three months. The defendants also were directed to pay the plaintiffs substantially all of their attorney fees and costs, and that issue presently remains on appeal. The plaintiffs in the litigation were John Densmore, the third surviving member of The Doors, along with the Estates of James Morrison and Pam Courson. Manzarek and Krieger, the principal defendants, are each 25 percent partners in the Doors partnership and will therefore share in the substantial amount they are required to disgorge to the partnership. The other defendants were Ian Astbury and Doors Touring, Inc. S. Jerome Mandel, the litigation counsel for plaintiffs John Densmore and the Coursons, whose daughter Pamela was married to Jim Morrison at the time of his death, stated: "This dispute was about protecting the integrity and legacy of what The Doors stood for. From their inception they viewed each other as equal members. Unlike most other rock groups, their policy was to share equally all song writing credits and royalties, regardless of who wrote the music or lyrics. All decisions involving the group had to be unanimous, especially when it came to any actions that were inconsistent with Jim Morrison's strong stand against the commercialism of their name. Unfortunately, the defendants in this matter violated these fundamental principles. The court's ruling rectifies these injustices. It is a tribute to John Densmore and the Estates that they persevered though all these years, at tremendous financial and emotional expense, including sitting through such a long trial and jury deliberations." "We are particularly gratified that the court recognized Jim Morrison's iconic stature as a performer, songwriter and poet whose body of work continues to influence musicians and rock groups worldwide," said Lou Reisman, general counsel for the Morrison family. The plaintiffs were represented at the trial level and on appeal by S. Jerome Mandel and Lilly Lewis of Santa Monica-based Mandel, Norwood & Grant on behalf of John Densmore and the Estate of Pam Courson. Jeffrey Forer, Esq., formerly with Weinstock, Manion, Reisman, Shore & Neumann, and now with Hinojosa & Wallet of West Los Angeles represented the Estate of James Morrison at the trial. On appeal, Mr. Forer was joined by Louis A. Reisman and Blake Rummel of Weinstock, Manion, Reisman, Shore & Neumann. The defendants were represented at trial by the firm of Lavely & Singer. SOURCE Mandel, Norwood & Grant A couple of blogs from the many legal blog sites that commented on this. Rock Band Engaged in False Advertising Jun 30 2008 Trade Regulation Talk A blog on antitrust, consumer protection, franchising, advertising, privacy, and civil RICO law. Members of Former Rock Band Engaged in False Advertising, Violated Right of Publicity This posting was written by William Zale, Editor of CCH Advertising Law Guide. Two members of the former rock band “The Doors” engaged in false advertising under California law by disseminating ads for a concert tour by a band falsely identified as “The Doors,” a California appellate court has ruled. The band members (keyboardist Ray Manzarek and guitarist Robby Krieger) also violated the California right of publicity statute, according to the court. The trial court's finding of liability (CCH Advertising Law Guide 61,765) on the false advertising claim was not inconsistent with jury verdicts rejecting trademark infringement and unfair competition claims, which were not substantively equivalent to the false advertising claim, the appellate court determined. The court upheld a permanent injunction barring the two band members from promoting their concerts using the name “The Doors”; using any name containing the name “The Doors”; or using the name, voice, or likeness of deceased band member Jim Morrison. Right of Publicity The band members violated the California right of publicity statute by using the name, voice, or likeness of Jim Morrison to promote the concert tour. A statutory exemption for musical works was inapplicable because the use of Morrison's name, voice, and likeness was part of the overall marketing plan to sell tickets for more than 65 concerts. In addition, no "original work" protectible by the First Amendment was created by the use of Morrison's likeness, the court held. The not-for-publication decision is Densmore v. Manzarek, California Appellate Court, Second Appellate District, May 29, 2008, CCH Advertising Law Guide 63,015. www.courtinfo.ca.gov/opinions/nonpub/B186036.PDFPosted by John W. Arden at 3:49 PM 0 comments traderegulation.blogspot.com/2008....engaged-in.htmlMonday, June 30, 2008 Friday, May 30, 2008 Riders on the Storm: Doors members can't use pictures of Jim Morrison at concerts Densmore v. Manzarek, 2008 WL 2209993 (Cal.App. 2 Dist.) Raymond Manzarek, Robert Krieger, and John Densmore met in a meditation class in LA in 1965. At Manzarek’s suggestion, they formed a band with Manzarek’s acquaintance Jim Morrison. Over forty years later, the trial court enjoined Manzarek and Krieger from holding themselves out as the band The Doors, and awarded over $3.2 million to Densmore and his partnership with Jim Morrison’s heirs. The court found that defendants had engaged in false advertising and enjoined various forms of advertising of “The New Doors” or “The 21st Century Doors” that deemphasized everything but the “Doors” and that incorporated the classic Doors logo. Most of the claims in the case focused on the partnership agreements in operation before and after Morrison’s death. I will skip over large portions of the legal analysis, focusing on the overlap between trademark and false advertising claims and on the injunction granted to redress violations of the right of publicity. A jury found that both sides had breached various agreements, and that defendants had violated the Morrison Estate’s California statutory publicity rights, but rejected the state and federal unfair competition claims submitted to it. The jury also awarded zero damages for breach, but the trial court determined that it could still award lost profits to the plaintiffs, a conclusion upheld on appeal. The publicity rights claims stemmed from the display of Jim Morrison’s image to the audience at about 30 concerts; the image was shown from 30 to 90 seconds at the beginning of Manzarek’s band’s set. In several cities, ads for the band used Morrison’s voice singing Doors songs, and merchandise used words and phrases associated with Morrison. The advertising/trademark issues on appeal focused on the fact that the jury found that there had been no trademark infringement or unfair competition. But the court determined that false advertising was an equitable issue and entered judgment for plaintiffs. (Because the jury awarded zero monetary damages for the right of publicity claim, the court awarded $750, the statutory minimum.) On appeal, defendants argued that the court’s false advertising ruling was inconsistent with the jury’s findings on the trademark/unfair competition issues. The jury instructions provided that they should find for plaintiffs if use of the names “The Doors” or “The Doors of the 21st Century” was likely to cause confusion or was likely to deceive people into thinking that use of the names was authorized or constituted unfair business practices or false advertising. The court of appeals held that the jury verdict wasn’t necessarily inconsistent with the false advertising claim. On the first argument, the false advertising claim requires untrue or misleading advertising, and an ad can be untrue or misleading without causing confusion about source. Comment: true but entirely irrelevant, since the court discusses no element of the advertising that is misleading for any other reason but source identification. The court continued that, under California law, false advertising has slightly different elements than unfair competition; though case law holds that a false advertising violation necessarily violates the unfair competition statute, this is only true as an “abstract proposition,” and a jury might find one without the other, for example if there is no “business practice” for purposes of the unfair competition law. Comment: Again, the court offers no reason to think any relevant element of an unfair competition claim might have been missing here. The court also discounted the jury instructions specifically mentioning false advertising because the jury wasn’t instructed on the elements of false advertising. So, though it was a “close question,” the unfair competition and false advertising claims weren’t duplicates, and the court could find false advertising without defying the jury verdict. Anyway, the jury’s verdict was only advisory, and the trial court could disregard it, because this was an equitable claim. The trial court found that the advertising was false in that it stated that defendants’ band was The Doors. But the band was not The Doors. It’s true enough that no one seeing the ads would expect to see Jim Morrison perform. But the ad wasn’t for Jim Morrison. It was for the band known as The Doors. (This is, I think, slicing the salami rather fine. What is The Doors, once we admit that consumers know that it’s not a group that includes Jim Morrison? The court implicitly holds, for reasons known best to itself, that a band that includes two of the three surviving original members is not The Doors.) Defendants can continue to identify themselves as founding or original members of The Doors, subject to limits on placement, wording, and font size, and a ban on using the classic Doors logo or any font similar in style to the classic Doors logo. The court further sustained an injunction against using Morrison’s name, likeness, voice or image to promote defendants’ band. Here the court turned performance critic: “From an artistic or musical perspective, briefly displaying a photograph of Morrison during or immediately prior to a concert adds nothing to the performance and is, in fact, not a part of the performance.” I suspect most rock critics and performance theorists would disagree; combining audio and visual is a primary reason to attend a live performance. But, the court continued, “[t]he only reason to display a photograph of the iconic Morrison is to suggest that the band is a continuation of his work and artistry--in short, to add Morrison’s luster to the band and thus to profit from his name and likeness,” and that’s what the right of publicity statute bans. Under the injunction, defendants can use Morrison’s likeness for any “legitimate” purpose, “such as an account of the history of The Doors, or in telling the story of 20th century rock and roll. The only act it prohibits is using Morrison’s name and likeness to promote appellants’ band or their concerts.” When you’re at the concert already, how does using the image “promote” the band? What if the original band members begin the show with reminiscences of “the history of The Doors”? Though the ruling with respect to actual ads makes some sense, the court should have drawn the line at conventional commercial speech. (Note that the ruling for ads only makes sense because concerts aren’t excluded from the California right of publicity statute by the provision that protects ads for “a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, [or] work of political or newsworthy value.”) The dissent began by pointing out that “[t]he members of our community who diligently served as trial jurors in this case for nearly fourteen weeks would be startled to learn that their months of work counted for nothing.” There was a major screw-up in trial management—a month into trial, plaintiffs informed everyone that their claims were largely equitable, not legal, and the parties continued to fight over the legal/equitable line for months after the trial ended. Under the circumstances, the dissent would have bound the plaintiffs to the jury’s findings, allowing an injunction against further breach of the contract, but not damages. As the dissent explained in a footnote, the jury apparently thought that everybody involved had behaved badly, justifying findings of liability on all sides without transfer of money. This, the dissent thought, was quite consistent with the evidence: “Densmore was unable or unwilling to tour; but, rather than giving Manzarek and Krieger the go-ahead with his blessing, he blocked them from performing with other musicians as The Doors of the 21st Century. Manzarek and Krieger knew that the rule of the partnership was unanimity, but when Densmore acted unreasonably, they just went ahead in a ‘to-heck-with-him’ manner. The Estates consist of people who have never touched a musical instrument or a microphone but want to take money from Morrison's former band-mates who - in their mid-60s - are out working.” However, the dissent would have held that the false advertising claim failed. The trial court’s finding of false advertising based on the use of the name The Doors, a photo of Jim Morrison, and the logo/font associated with The Doors was inconsistent with the jury’s finding of no liability on the trademark and unfair competition claims. Moreover, the majority didn’t explain what was false or misleading: “Surely no one buying a ticket in the 21st century to see The Doors in concert would expect to see Jim Morrison perform. He has been dead for some 37 years. Indeed, Morrison vies with Janis Joplin, Jimi Hendrix, and John Lennon for the title of world’s most famous rock musician to have died young.” (The dissent’s obvious correctness on this point was blunted by its introduction of this problem as a question of the line between falsity and misleadingness, which allowed the majority to respond by parsing doctrine instead of explaining what a reasonable consumer viewing the ad might mistakenly think.) In any event, the dissent would have held that plaintiffs lacked standing to sue for false advertising, because they had not suffered an injury in fact, nor had they lost money or property as a result of the unfair competition. The jury awarded zero dollars to the plaintiffs on their claims, and the plaintiffs conceded at the start of trial that they were not claiming any harm to their catalogue. Posted by Rebecca Tushnet at 1:48 PM tushnet.blogspot.com/2008/05/riders...s-cant-use.html |
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:28:00 GMT
What follows is the Manzarek/Krieger accounting that was ordered by the court and the Densmore objection to that accounting. There are some interesting segments to these documents and they are well worth your time reading through them.
Additional side notes which are not part of the document are made in ###Red and Blue####
FILED
Los Angeles Superior Court August 15 2005 John A Clarke, Clerk
Martin D Singer (Bar No. 78166)
William Briggs, II (Bar No. 144717)
Paul Karl Lukas (Bar No. 197007)
Lavely & Singer, P.C.
2049 Century Park East, Suite 2400
Los Angeles, California 90067-2906
Attorneys For Defendants and Cross-Complaintants
ROBERT KRIEGER and RAYMOND MANZAREK And Defendants IAN ASTBURY and DOORS TOURING, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT
John Densmore, Etc.,
Plantiff,
v.
Raymond Manzarek, an individual;
Robert Krieger, an individual; Ian Astbury,
An individual; Doors Touring, Inc., a California corporation and Does 1 through 20 inclusive
Defendants.
Raymond Manzarek and Robert Krieger, as individuals and on behalf of several California general partnerships,
Cross-Complaintants.
v.
John Densmore, an individual,
Cross-Defendant
Columbus Courson, Pearl M Courson, George Morrison and Clara Morrison
Plantiffs.
v.
Raymond Manzarek, Robert Krieger, Ian Astbury
Does I through 500, inclusive,
Defendants.
CASE NO. BC 289 730
(Consolidated With Case No. BC 294 495
ACCOUNTING OF RAYMOND MANZAREK AND ROBERT KRIEGER; DECLARATION OF ALAN GOLDMAN IN SUPPORT THEREOF
Hearing Date: September 16 2005 Time: 8:30am Dept.: 36
(Hon. Gregory W. Alarcon
Defendants and Cross-Complainants Ray Manzarek and Robert Krieger, in accordance with this Court’s Statement of Decision, entered July 21 2005, hereby submit the following written Accounting and supporting documents, including a list identifying any individual or individuals who may testify at the hearing scheduled by the Court to occur on September 16, 2005.
DEFENDANTS POTENTIAL WITNESSES TO TESTIFY ON SEPTEMBER 16, 2005
Alan S. Goldman, C.P.A.
Thomas Vitorino
ACCOUNTING AND SUPPORTING DOCUMENTATION
Pursuant to this Court’s Statement of Decision, entered July 21 2005, Manzarek and Krieger hereby provide an Accounting of the profits (as defined by the Court) which each has earned from touring, performing and recording as The Doors or The Doors of the 21st Century and from Doors of the 21st Century merchandising (collectively, “Performing”) from April 18, 2003 through July 21, 2005, inclusive. (1) The manner in which this accounting was calculated is detailed in the attendant Declaration of Alan S. Goldman and the attached Schedules and supporting documentation.
The following is the manner in which disgorgement is to occur pursuant to the Court’s Statement of Decision: (2)
First Time Period (Jan. 1, 2003 to April 18, 2003) (3)
Manzarek:
Total Earnings: $94,000.00
Disgorgement to Densmore $31,333.33
Krieger
Total Earnings: $94,000.00
Disgorgement to Densmore $31,333.33
The attached Schedule A (Exhibit A) contains a summary of all of the earnings received by Manzarek and Krieger from Performing during the First Time Period. See also Goldman Dec., 4. Exhibit C contains the supporting documentation for these earnings. See Also Goldman Dec 17. Manzarek and Krieger did not receive any other earnings for Performing the First Time Period. Goldman Dec 6. # see bottom for Schedule A
Second Time Period (April 19, 2003, to July 21 2005)(4)
Manzarek:
Total Earnings: $696,029
Disgorgement to Old Doors Oral Partnership $696,029
Beneficial Distribution
To Densmore $174,007.25
To Estates $174.007.25
To Krieger $174,007.25
To Manzarek $174,007.25
Krieger:
Total Earnings: $696,024
Disgorgement to Old Doors Oral Partnership $696,024
Beneficial Distribution
To Densmore $174,006.00
To Estates $174.006.00
To Krieger $174,006.00
To Manzarek $174,006.00
The attached Schedule B (Exhibit B ) contains a summary of all of the earnings received by Manzarek and Krieger from Performing during the Second Time Period. See also Goldman Dec., 9 12-15, 18-21. Manzarek and Krieger’s earnings during the Second Time Period are composed of salary (Exhibit D), limited liability company distributions (Exhibit E), direct payment for a concert in Austria (Exhibit F). miscellaneous payments to Krieger followed by an equalization payment to Manzarek and Krieger (Exhibit G) and foreign income tax passthroughs (Exhibits H to K) (5) id. # see bottom for Schedule B
Manzarek and Krieger did not receive any other earnings for Performing during the Second Time Period. Goldman Dec. 22
During the First Time Period and the Second Time Period, neither Mr. Manzarek nor Mr. Krieger paid any of the legal fees incurred in the defense of this litigation. Goldman Dec., 23. During the First Time Period and the Second Time Period, neither Mr. Manzarek nor Mr. Krieger paid any money to Ian Astbury, to Ian Astbury, Inc., or to any named Defendant.
MANZAREK AND KRIEGER SHOULD BE ALLOWED TO PAY 50% OF THE DISGORGED AMOUNT DIRECTLY TO DENSMORE AND THE ESTATES.
The Beneficial Distribution sub-tables above note the actual manner in which the disgorgement for the Second Time Period will be distributed. In fact, 50% of all “disgorged” monies flow back to Manzarek and Krieger through the Old Doors Oral Partnership. See Goldman Dec. 26. But only 50% of the disgorged amount will actually be paid to Plantiffs to compensate for the harm which they have alleged. Id.
Manzarek and Krieger should be allowed by this Court to satisfy the disgorgement provisions of the Statement of Decision by making direct payments to Densmore and the Estates of each’s 25% share while Manzarek and Krieger keep their respective 25% shares, which would, in any event, flow back to them. Goldman Dec., 27. Alternatively, Manzarek and Krieger could pay 50% to the Old Doors Oral Partnership which waiving their right to receive back any portion of those funds. Id.
From an accounting standpoint, it would be superfluous to obligate Manzarek and Krieger to make payments of 100% of the disgorged amount to the Old Doors Oral Partnership, only to have 50% of the funds returned to them. Goldman Dec., 28. Direct payment is logical, it increases the ease of administering this Court’s ruling, and it results in an equitable distribution of each alleged partners’ monetary share. (6) Id.
From a legal perspective, litigants such as Densmore and the Estates may only recover the specific loss which each as suffered. See, e.g. Rosenthal v. Gould, 273 Cal. App. 2d 239, 247 (1969) (partner’s recovery limited to “the detriment he sustained”): Fitts v. Mission Health & Beauty Shop, 58 Cal. App. 362, (1922) (“the measure of damages would be her loss of a share in the prospective profits of the enterprise.”). Thus, a direct payment by Manzarek and Krieger to Densmore and the Estates of each’s 25% interest would constitute a satisfaction of the legal detriment which this Court has ruled that Densmore and the Estates have suffered.
Consequently, the Court should enter an Order allowing Manzarek and Krieger to satisfy the disgorgement provisions of the Statement of Decision by making direct payments to Densmore and the Estates of each’s 25% share while keeping their 50% share, or, alternatively, paying 50% to the Old Doors Oral Partnership while waiving their right to receive back any portion of those funds.
Dated: August 15, 2005
Lavely and Singer
Professional Corporation
Martin D. Singer
William J. Briggs, II
Paul Karl Lukacs
By: Paul Karl Lukacs
Attorneys For Defendants and Cross-Complaintants
ROBERT KRIEGER and RAYMOND MANZAREK
And Defendants IAN ASTBURY and DOORS TOURING, INC.
(1) On July 21 2005, Manzarek and Krieger, in compliance with this Court’s Statement of Decision, ceased calling or referring to their band as ‘The Doors of the 21st Century.” See Declaration of Alan S. Goldman, 24.
NB ####Goldman swore that the name D21C was not used after July 21 2005 which is not true because Ray did not announce the new name Riders On the Storm until the VH-1 thing in August. In fact at this point in time D21C was still being advertised at shows.####
(2) For the record, Manzarek and Krieger object to the Statement of Decision and object to the Court-ordered disgorgement as erroneous as a matter of law and/or fact.
(3) The court ordered that one-third of all profits earned by Manzarek and Krieger from January 1, 2003 to April 18, 2003, inclusive (the “First Time Period”), be disgorged to John Densmore. Statement of Decision, at 42:4-5
(4) The Court ordered that all profits earned by Manzarek and Krieger from April 19, 2003 to July 21, 2005, inclusive (the “Second Time Period”) be disgorged to the Old Doors Oral Partnership. Statement of Decision, at 42:6-7
(5) Foreign income tax passthroughs are an economic benefit which inure to the benefit of an individual shareholder of an S corporation. Goldman Dec., 17. In brief, Doors Touring, Inc., incurred foreign income taxes in the total sum of $367,876 and Diamond Night Productions LLC incurred foreign taxes in the total sum of $20,996 for certain performances rendered outside the United States during the Second Time Period. Id. Mr. Manzarek and Mr. Krieger now each have the right to credit these foreign tax payments against U.S. taxes owed on foreign income earned by each of them. Id. Consequently, the benefit of the foreign income tax passingthrough is being declared as income for purposes of this Court ordered Accounting. Id.
(6) For the record, Manzarek and Krieger object, among other things, to the Court’s finding that the Doors name is owned by a partnership and to the finding that the Estates are partners.
DECLARATION OF ALAN S. GOLDMAN
I, Alan S. Goldman, declare as follows:
I am an adult over the age of eighteen, and I am not a party to the within action. The facts stated herein are started as my own personal knowledge and, if called and sworn as a witness, I could and would testify competently thereto.
I am a Certified Public Accountant and Business Manager, and I am a partner in Goldman & Knell CPAs LLP. I have been the Business Manager for Raymond Manzarek since 1987. I have been the Business Manager of Doors Touring, Inc., since November 2002 and of Diamond Night Productions LLC since September 2003.
In response to and in compliance with this Court’s Statement of Decision, dated July 21, 2005, I have reviewed all payments made to Raymond Manzarek and Robert Krieger in consideration of their performing as The Doors or as The Doors of the 21st Century and with regard to Doors of the 21st Century merchandising (“Performing”) from January 1, 2003, to July 21, 2005, inclusive. I have reviewed, among other things, checks payable to and wire transfers to either Mr. Manzarek or Mr. Krieger for Performing.
Attached as Exhibit A is a true and correct copy of a schedule (“Schedule A”) that I created which states the total profits paid to and earned by Mr. Manzarek and Mr. Krieger for Performing during the time period January 1, 2003 to April 18, 2003, inclusive (the “First Time Period”). Schedule A reveals that Mr. Manzarek and Mr. Krieger each earned $94,000 from Performing during the First Time Period.
All payments to Mr. Manzarek and Mr. Krieger for Performing during the First Time Period took the form of payments by check from Doors Touring, Inc., to Mr. Manzarek and Mr. Krieger.
Neither Mr. Manzarek nor Mr. Krieger received any income, revenue or payments for Performing during the First Time Period other than the $94,000 each in payment by check which appears on Schedule A.
Attached as Exhibit C are true and correct copies of the documents which support Schedule A. These back up documents consist of copies of the “yellow sheet” for each check made payable to Mr. Manzarek or Mr. Krieger for Performing during the First Time Period. (A “yellow sheet” is a carbon like copy of a check which is created at the time that a check is issued and is thereafter retained by Goldman & Knell CPA’s LLP on behalf of and at the instruction of the client, as a business record in the ordinary course of business.
Specifically, Schedule A is supported by Doors Touring, Inc. Check No. 5057 payable to Mr. Krieger in the gross sum of $14,750, Check No. 5058 payable to Mr. Manzarek in the gross sum of $14,750, Check No. 5080 payable to Mr. Krieger in the gross sum of $14,250, Check No. 5081 payable to Mr. Manzarek in the gross sum of $14,250, Check No. 5138 payable to Mr Krieger in the gross sum of $65,000 and Check No. 5139 payable to Mr. Manzaek in the gross sum of $65,000. Together, these checks demonstrate that Mr. Manzarek and Mr. Krieger were each paid a total of $94,000 for Performing during the First Time Period.
Attached as Exhibit B is a true and correct copy of schedule (“Schedule B”) # see bottom for Schedule B that I created which states the total profits paid to and earned by Mr. Manzarek and Mr. Krieger for Performing during the time period of April 19, 2003, to July 21, 2005, inclusive (the “Second Time Period”). The schedule reveals that, from Performing during the relevant time period, Mr. Manzarek earned $696,029 and Mr. Krieger earned $696,024. (The $5 difference is caused by rounding.)
The profits earned by Mr. Manzarek and Mr. Krieger during the Second Time Period took two distinct forms, payments and foreign income tax passthroughs.
During the Second Time Period, Mr. Manzarek and Mr. Krieger were each paid $519,677 by check for Performing. Specifically, Doors Touring, Inc., paid $366,602 to Mr. Manzarek and the identical amount to Mr. Krieger for Performing during the Second Time Period. Diamond Night Productions LLC paid $153,075 to Mr. Manzarek and the identical amount to Mr. Krieger for Performing during the Second Time Period. (The payments by check to Mr. Manzarek and Mr. Krieger are comprised of salaries, S-corporation distributions and limited liability company distributions.)
Attached as Exhibit D are true and correct copies of the yellow sheets which demonstrate that Mr. Manzarek and Mr. Krieger each received $345,000 in gross salary from Doors Touring, Inc., for Performing during the Second Time Period. Specifically, Exhibit D consists of true and correct copies of the yellow sheets for Doors Touring, Inc., Check No. 5173 payable to Mr. Krieger in the gross sum of $20,000, Check No. 5174 payable to Mr. Manzarek in the gross sum of $20,000, Check No. 5237 payable to Mr. Krieger in the gross sum of $75,000, Check No. 5238 payable to Mr. Manzarek in the gross sum of $75,000, Check No. 5290 payable to Mr. Krieger in the gross sum of $75,000, Check No. 5291 payable to Mr. Manzarek in the gross sum of $75,000, Check No. 5463 payable to Mr. Krieger in the sum of $100,000 and Check No. 5464 payable to Mr. Manzarek in the sum of $100,000.
Attached as Exhibit E are true and correct copies of the yellow sheets which demonstrate that Mr. Manarek and Mr. Krieger each received $153,075 in limited liability company distributions from Diamond Night Productions LLC for Performing during the Second Time Period. Specificially, Exhibit E consists of true and correct copies of the yellow sheets for Diamond Night Productions LLC Check No. 1007 payable to Mr. Krieger’s trust in the sum of $93,075, Check No. 1008 payable to Mr. Manzarek’s trust in the sum of $93,075, Check No. 1023 payable to Mr. Krieger’s trust in the sum of $60,000 and Check No. 1024 payable to Mr. Manzarek’s trust in the gross sum of $60,000.
One Doors of the 21st Century concert, which occurred in Wiesen, Austria, was structured so that Mr. Manzarek and Mr Krieger each received $20,000 directly from the concert promoter.
Attached as Exhibit E are true and correct copies of the wire transfer documents which demonstrate Mr. Manzarek’s receipt of his $20,000 in payments (structured as two separate payments of $10,000).
Also attached as Exhibit F are true and correct copies of electronic mail messages between myself and Jerry Swartz, the Business Manager for Mr. Krieger, in which Mr. Swartz’s confirms that Mr. Krieger has also received his $20,000 wire transfer payments.
####
Description of Exhibit F
There were 4 wire transfers received by Chase Manhattan Bank from the Bank Of Austria (Exhibit F) in the amount of $10,000 each credited to the accounts of Manzarek and Krieger as payment from Wiesen Festival and Concerts in Austria. The first two wire transfers occurred July 1, 2004. The description indicated on the first wire transfer credited to Manzarek's account states that the money is in payment for "Ray Manzarek Wiesen, Austria." The only reference to a deposit to Krieger's account is an email dated July 6, 2004 from Alan Goldman to Jerry Swartz asking for confirmation of receipt for a wire transfer in the amount of $10,000 from Wiesen Festival and Concerts. The receipt of the money was confirmed by Swartz but his email is dated July 5, 2004..
The Second two wire transfers occurred on July 14, 2004 in the amount of $10,000 each. Credited to Manzarek and Krieger's accounts. The description on the second wire transfer credited to Manzarek's account states that the money is in payment for the "Balance Ray Manzarek Jazz Festival Wiesen" The only reference of deposit to Krieger's account is an email dated July 16, 2004 from Alan Goldman to Jerry Swartz asking for confirmation of receipt of a wire transfer in the amount of $10,000 from Wiesen Festival and Concerts. The receipt of the money was confirmed by Swartz in an email dated July 19, 2004.####
From: jerryscwartz@
Sent: Monday July 05 2004 5:00 PM
To Alan Goldman
Subject Re Robby Krieger
Yes we received bank confirmation this morning. Regards, jerry
Original message
From: Alan Goldman
To jerryswartz
Sent 7/6/04 10:26:02 AM
Subject Robby Krieger
Robby should have received a wire in the amount of $10,000 from Wiesen Festival & Concerts this morning. I would appreciate if you would confirm this
Best regards
Alan S Goldman
The very strange email that seems to have been replied to the day before it was sent!
Mr. Krieger received certain miscelleaous payments during the Second Time Period which totaled $1,602.50. Specifically, these payments were disbursed in connection with the rental of a rehearsal stage ($200, dated March 17, 2004) and payments of cash ($300, dated May 5, 2004; $500 dated May 6, 2004; $300, dated May 6 2004; and $302.59 dated July 16 and 17, 2004, which was converted from the original amount of 250 Euros. In order to ensure that Mr. Manzarek and Mr, Krieger each received the same amount of compensation for Performing, Doors Touring, Inc. (“DTI”) issued an equalization payment to Mr. Manzarek, via DTI Check No. 5891, dated December 31, 2004, in the gross amount of $1,602.50. The gross amount was reduced by $1,257.50 in reimbursements from Mr. Manzarek to DTI, yielding a final check amount of $345.00 A true and correct copy of the documentation supporting this additional $1,602.50 of income to both of Mr. Manzarek and Mr. Krieger’s is attached as Exhibit G.
Mr. Manzarek and Mr. Krieger each have the right to receive the benefit of foreign income tax passthroughs for Performing during the Second Time Period.
Foreign income tax passthroughs are an economic benefit of an individual share holder of an S corporation. In brief, Doors Touring, Inc., incurred foreign income taxes in the total sum of $331,704 and Diamond Night Productions LLC incurred foreign taxes in the total sum of $20,995 for certain performances rendered outside the United States during the Second Time Period. Mr. Manzarek and Mr. Krieger now each have the right to credit these foreign tax payments against U.S. taxes owed on foreign income earned by each of them. Consequently, the benefit of foreign income tax passthrough is being declared as income for purposes of this Court ordered Accounting.
Attached as Exhibit H are true and correct copies of redacted IRS Form Schedule K-1s for 2003 and 2004 issued by Diamond Night Productions LLC to Mr. Krieger, evidencing the foreign income taxes incurred by Diamond Night Productions LLC of which Mr. Krieger receives the benefit. Specifically, Mr. Krieger received a foreign income tax passthrough benefit of $4,122 in 2003 and $6,375 in 2004.
Attached as Exhibit 1 are true and correct copies of redacted IRS Form Schedule K-1s for 2003 and 2004 issued by Diamond Night Productions LLC for Mr. Manzarek evidencing the foreign income taxes incurred by Diamond Night Productions LLC of which Mr. Manzarek receives the benefit. Mr. Manzarek. Specifically, Mr. Manzarek received a foreign tax passthrough benefit of $4,123 in 2003 and $6,375 in 2004.
Attached as Exhibit J are true and correct copies of redacted IRS Form Schedule K-1s for 2003 and 2004 issued by Doors Touring, Inc., to Mr. Krieger, evidencing the foreign income taxes paid by Doors Touring, Inc., of which Mr. Krieger receives the benefit. Specifically, Mr. Krieger received a foreign income tax passthrough benefit of $67,240 in 2003 and $98,610 in 2004.
Attached as Exhibit K are true and correct copies of redacted IRS Form Schedule K-1s for 2003 and 2004 issued by Doors Touring, Inc., to Mr. Manzarek, evidencing the foreign income taxes paid by Doors Touring, Inc., of which Mr. Manzarek receives the benefit. Specifically, Mr. Manzarek received a foreign income tax passthrough benefit of $67,241 in 2003 and $98,613 in 2004.
Neither Mr. Manzarek nor Mr. Krieger received any income, revenue or payments for Performing during the Second Time Period other than the payments and the foreign income tax passthroughs with appear on Schedule B.
During the First Time Period and the Second Time Period, neither Mr. Manzarek nor Mr. Krieger paid any of the legal fees incurred in the defense of this litigation. During the First Time Period and the Second Time Period, neither Mr. Manzarek nor Mr. Krieger paid any money to Ian Astbury, to Ian Astbury Inc., or to any named defendant.
I am informed and believe that, on July 22, 2005 (the date on which Manzarek and Krieger first obtained a copy of the Court’s Statement Of Decision), Mr. Manzarek and Mr. Krieger, in compliance with this Court’s Statement Of Decision, ceased calling or referring to their band as “The Doors of the 21st Century.”
This Court has ordered Mr. Manzarek and Mr. Krieger to disgorge to the Old Doors Oral Partnership all profits earned from April 19, 2003, to July 21, 2005, inclusive. Statement of Decision, at 42:6-7
This disgorgement must be seen in light of its real world beneficial effect. All monies paid to the Old Doors Oral Partnership are divided and paid out 25% to Manzarek, 25% to Krieger, 25% to Densmore and 25% to the Estates’ interests. In effect, a disgorgement of 100% to the Old Doors Oral Partnership is actually disgorgement of 25% to Densmore and 25% to the Estates’ interests. Manzarek and Krieger’s 25% interests each returned back to them.
By making direct payments to Densmore and the Estates of each 25% share, Manzarek and Krieger would keep their respective 25% shares which would, in any event, flow back to them. Alternatively, Manzarek and Krieger could simply pay 50% to the Old Doors Oral Partnership while waiving their right to receive back any portion of those funds.
From an accounting standpoint, it would be superfluous to obligate Mr. Manzarek and Mr. Krieger to make payments of 100% of the disgorged amount to the Old Doors Oral Partnership, only to have 50% of the funds returned to them. Direct payment is logical, it increases the ease of administering this Court’s ruling, and it results in an equitable distribution of each alleged partners’ monetary share.
I declare under penalty of perjury under the laws of the State of California that the forgoing is true and correct.
Executed August 12, 2005, in Los Angeles, California
Signed: Alan S. Goldman
## Schedule A
Profits earned by Manzarek & Krieger from touring performing and recording as The Doors or The Doors of the 21st century
January 1st 2003 to April 18th 2003.
Earnings received by RM from Doors Touring Inc $ 94,000
Earnings received by RK from Doors Touring Inc $ 94,000
Total Profits earned by RM & RK $188,000
##Schedule B
Profits earned by Manzarek & Krieger from touring performing and recording as The Doors or The Doors of the 21st century
April 19 2003 to July 21st 2005.
Earnings received by RM from Doors Touring Inc $ 366,602 note (a)
Earnings received by RK from Doors Touring Inc $ 366,602 note (a)
Earnings received by RM from Diamond Night Productions LLC $ 153,075 note (b )
Earnings received by RM from Diamond Night Productions LLC $ 153,075 note (b )
Sub Total $1,039,354
Foreign Income tax From DTI K-1 RM $165,854
Foreign Income tax From DTI K-1 RK $165,850
Foreign Income tax From Diamond Night Productions LLC K-1 RM $10,498
Foreign Income tax From Diamond Night Productions LLC K-1 RK $10,497
Sub Total $352,699
Total profits earned by RK & RM $ 1,392,053
Footnotes a) Includes salary and S-Corporation Distributions
b ) LLC Members Distributions
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:28:36 GMT
This document was a Densmore/Estate objection to the initial accounting made by the defendants Krieger/Manzarek on August 15th 2005 # see post above for that document!.
FILED LOS ANGELES SUPERIOR COURT
AUG 22 2005
JOHN A CLARKE, CLERK
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Case No. BC289730
Complaint filed 2/4/03
Consolidated with
Case No. BC294495
Complaint filed 4/23/03
Assigned to Hon. Gregory Alarcon
PLAINTIFFS’ OBJECTION TO DEFENDANTS “ACCOUNTING”, AND PLAINTIFF’S REQUEST FOR GROSS RECEIPTS
Hearing:
Date: September 16, 2005
Time: 8:30am
Dept: 36
JOHN DENSMORE, individually and on behalf of California general partnerships comprised of John Densmore, the Estate of Jam es Morrison, the Estate of Pamela Courson, Raymond Manzarek and Robert Krieger.
Plaintiff,
Vs.
RAYMOND MANAREK, an individual; ROBERT KRIEGER, an individual; IAN ASTBURY, an individual’ DOORS TOURING, INC., a California corporation; and Does 1 through 20, inclusive,
Defendants.
AND RELATED CROSS-ACTION.
PEARL COURSON, individually and as guardian ad litem for COLUMBUS COURSON, each on behalf of the DOORS MUSIC CO., a California general partnership and on behalf of THE DOORS, a California general partnership, and GEORGE MORRISON and CLARA MORRISON, each and on behalf of the DOORS MUSIC CO., a California general partnership, ad PEARL COURSON, individually and as guardian ad litem for COLUMBUS COURSON, and GEORGE MORRISON, and CLARA MORRISON, individually with respect to the seventh cause of action,
Plaintiffs,
Vs.
RAYMOND MANZAREK, ROBERT KRIEGER, IAN ASTBURY, THE DOORS TOURING COMPANY, a California entity of unknown form, and DOES 1 through 500, Inclusive,
Defendants.
TABLE OF CONTENTS
I. Introduction
II. The Court’s Statement Of Decision and the Accounting To Be Provided By Defendants
III. The So-Called “Accounting” Provided By Defendants
A. What Was Produced By Defendants
B. The “Objection” Of Plaintiffs
IV. Defendants Manzarek and Krieger has refused to present evidence of the profits earned from touring and related activities and may not now claim any deductions for operating expenses.
A. Defendants’Failure To Produce An Accounting In Response To The Court’s order Warrants An Award To Plaintiffs Of Defendants’ Gross Receipts.
B. Application Of Precisely the Same Analysis In Copyright Law
C. The Amount Due Densmore
V. Defendants Request To Pay Only 50% of the amount to be disgorged is disingenuous and should be denied
VI. Conclusion
I. INTRODUCTION
In what only can be described as arrogance, intellectual dishonesty, unbashed disdain for the Court’s Statement of Decision, and/or poor litigation tactics, in response to the Court’s Order that they supply evidence of profits (as defined by the Court), Defendants Manzarek and Krieger have filed and served a pathetic excuse for an “accounting.” At best it is an embarrassment, at worst an insult. In either event, it is a far cry from what the Court sought. Plantiffs and the Court are unable even to make the complete profit calculation contemplated.
Given the Defendants’ conscious tactic not to comply with the Court’s Order, and their resulting “failure of proof” on this issue and the amount of relevant operating expenses to be deducted from the gross receipts of the Defendants’ performances and related activities, Plaintiffs request that the Court make its profitability determination based soley on the evidence of revenues generated as a result of the performing and related activities of the Defendants, as presented at trial, and the Court’s summary of that evidence in its Statement Of Decision (See Paragraph 32 thereof). Defendants Manzarek and Krieger, have elected not to account for profits or identify their operating expenses, ought to now be determined to be liable to Plaintiffs for the gross revenues received by them and their companies from all sources related to the activities of their band from and after January 1, 2003. This is precisely the lesson of the Court Of Appeal Decision in Rosenfield, Meyer & Sussman v. Cohen, 191 Cal. App. 3d 1035, 1050-53 (1087).
II. THE COURT’S STATEMENT OF DECISION AND THE ACCOUNTING TO BE PROVIDED BY DEFENDANTS
Regardless of whether or not the Defendants agree with it, the Court’s Statement of Decision is a resounding victory for Plaintiffs John Densmore and the Estates. The Court concluded that by virtue of their unauthorized use of the name The Doors, an asset belonging to the Old Doors Partnership, with a limited license to the 1971 “New Doors” Partnership while it was extant, Manzarek and Krieger, inter alia, (1) breached the written 1071 partnership agreement with Densmore in two distinct respects, (2) by their misappropriation of a partnership asset, i.e. the name “The Doors”, breached their fiduciary duties to Densmore and the Estates as partners of the partnership that owns the name “The Doors”, and (3) must account to the Plaintiffs for the “profits” earned from the touring and related activities of their band, without permitting deductions for legal fees or the salaries paid to any defendant in this case.
The Court’s conclusion regarding restitutionary disgorgement, and the Jury’s earlier finding of liability, is consistent with Special Instruction No. 4, directing that a partner’s duty of loyalty includes “the duty to account to the partnership and hold as trustee for it any property, profit, or benefit made from a use of partnership property….” (Emphasis supplied). This instruction tracks the language of California Corporations Code 16404 (B ) )1).
That the Court intended Manzarek and Krieger to “account” to the Plaintiffs for all profits and benefits resulting from their illegal touring activities, regardless of the corporate or other vehicle into which the receipts may have been deposited at their direction, is evident from the Statement Of Decision itself. Paragraph 32 of the Statement of Decision recites that more than $8,000,000 or revenue and $2,700,000 of profit was realized in just the approximate initial two years of doing business as a band (ignoring what has been done in the past year), plus additional foreign tax credits of $260,000 and $275,000 from Diamond Night, LLC. That the liability of Manzarek and Krieger was to include all profits and benefits realized, regardless of the identity of the entity which received them, is equally clear, The Court’s definition of “profits” fro this accounting purpose, excludes compensation paid to any Defendant, and also excludes a deduction for the millions of dollars in legal fees incurred in this litigation, which fees were paid by Doors Touring, Inc., a company owned solely by Manzarek and Krieger. See paragraph 23 of Goldman’s declaration.
Defendants were ordered to account and demonstrate the profits earned from and after June 30, 2003, and all profits earned to April 18, 2003. The purpose of the upcoming “accounting hearing” is to determine the amount of “profit” and benefit derived from the misappropriation of the partnership’s assets so that it can be restored to the Old Doors Partnership or Densmore, as appropriate. For Defendants now to suggest that the amount of the profit and benefit received by Manzarek and Krieger is less than $1,500,000 when the Defendants have had, inter alia, millions of dollars of litigation attorney fees paid for them, is ludicrous and a blatant disregard of the Court’s decision. This $1,500,000 figure is $1,300,000 less than the $2,800,000 of profits preliminarily identified by the Court in its Statement Of Decision (see paragraph 32), which dealt only with the first 20 months or so of touring.
The Court’s definition of “profits” contemplates identifying gross revenue from performing and related activities, and identification by Defendants of appropriate operating expenses in connection with the generation of that revenue, which definition specifically prohibits the inclusion in operating expenses of compensation to the Defendants and the litigation fees incurred in this case. As discussed hereinafter, the “accounting” provided by Defendants does not identify any operating expenses. In response to the Court’s Order to ignore the compensation paid to the Defendants, Defendants, principally in the form of pay checks (complete with withholding information). For the Defendants now to ignore the Court’s Statement Of Decision and provide only the limited compensation information described hereinafter, which is nothing more than compensation information which the Court expressly directed be excluded as a deductible item, is just plain outrageous and insulting to everyone else involved in this litigation. The Defendants must bear the burden of their litigation tactic to ignore the Court’s Order to produce operating expense figures that might be offset against gross receipts. As a consequence of their failure of proof, they should not be entitled to deduct anything from the gross revenues.
III. THE SO-CALLED ‘ACCOUNTING’ PROVIDED BY DEFENDANTS
A. What Was Produced By Defendants
The “accounting” produced by Defendants consists solely of an identification of amounts received directly by Manzarek and Krieger, principally as salary. The Court and Plaintiffs have been provided with a declaration from Mr Goldman identifying the checks and compensation received directly by Manzarek and Krieger from Doors Touring, Inc. (principally paychecks complete with SDI and FICA withholding, and Subchapter “S” distributions), some distribution information from their LLC, and two wire transfers to each from European promoters. Defendants then submit that their “profits” (i.e. salary received) totaled $188,000 from January 1, 2003 through April 18, 2003 (Exhibit A to Goldman declaration), and $1,392,053 thereafter (Exhibit B to Goldman declaration). Exhibits C and D to Mr Goldman’s declaration reflect that the compensation from Doors Touring, Inc. are paychecks, with appropriate withholdings – precisely the type of compensation which the Court indicated was of no moment.
Equally important is the fact that in paragraph 23 of his declaration Mr Goldman states that neither Manzarek nor Krieger paid any of the legal fees in this case, which is consistent with his testimony at trial that the fees were paid by Doors Touring, Inc.
Although many of the revenues relating to that band’s activities have been identified by the Court in paragraph 32 of its Statement Of Decision, in response to the Court’s Order for an accounting the Defendants have not identified a single additional dollar of revenue from those activities. Not a single operating expense of the touring and related activities of “The Doors of the 21st Century” has been provided in response to the Court’s ordered accounting.
B. The “Objection” of Plaintiffs
Plaintiffs “object” to the “accounting” provided, to the extent Plaintiffs are required to do so, on the ground that it wholly fails to comply with the Court’s Order. The “accounting” is the worst form of “game playing.” There is virtually no way, from what was provided by Defendants, to determine the requisite profit calculations as defined and requested by the Court. The objection is made to document Plaintiffs’ acknowledgement of the Defendants’ refusal to comply with the Court’s Order. As for the consequence of the Defendants’ refusal, as discussed below, Plaintiffs accept the Defendants’ “failure of proof” on the issue of operating expenses of the tour and related activities. Plaintiffs believe that as a result of the refusal of Defendants to present evidence of operating expenses, the liability of Manzarek and Krieger should be established at not less than $10,035,000. Anything less rewards them for their arrogance and refusal to comply with the Court’s Order and makes a mockery of these proceedings.
IV. DEFENDANTS MANZAREK AND KRIEGER HAVE REFUSED TO PRESENT EVIDENCE OF THE PROFITS EARNED FROM TOURING AND RELATED ACTIVITIES AND MAY NOT CLAIM ANY DEDUCTION FOR OPERATING EXPENSES.
Plaintiffs are not required now to opine whether Defendants are playing games, are lazy, make poor strategic decisions, or just do no care to present the evidence and accounting ordered by the Court. Suffice it to say that the Court already is aware that there has been generated by the touring and related activities of “The Doors of the 21st Century” and its predecessor, for at least the first 20 months commencing January 2003, gross revenues of not less than $9,500,000 plus tax credits to Manzarek and Krieger and Diamond Night earnings of not less than $535,000 (see paragraph 32 of the Statement Of Decision). Given Defendants refusal to present any evidence of any operating expenses pertaining to touring and related activities, Plaintiffs believe that there is a complete “failure of proof” on the part of Defendants. In light of the Defendants’ decision, Plaintiffs contend that the amount for which Manzarek and Krieger should be liable is $10,035,000 (the amount of revenue already acknowledged by the Court), plus any additional gross revenues that are presented or disclosed at the hearing on September 16. This is the sum of the revenues known to the Court as of the date of its Statement of Decision, and as to which Defendants have not now presented a single off setting operating expense to be considered by the Court or the Plaintiffs.
A. Defendants’ Failure To Produce An Accounting In Response To The Court’s Order Warrants An Award To Plaintiffs Of Defendants’ Gross Receipts.
The Court has ruled that the Defendants must be liable for all of the profits and benefits they have realized as a result of the misappropriation of the partnership’s asset, i.e., the name The Doors, consistent with Corporation Code 15404 (B ) (1). Section 16404(B ) (1) of the Corporations Code, provides that a partner has the duty “to account to the partnership and hold as trustee for it any property, profit, or benefit derived….from a use by the partner of partnership property…” It is the Defendants’ burden and duty to account.
Where a Defendant has been ordered and fails to account for profits, benefits, and expenses within his exclusive control and knowledge, the court is empowered to base its award upon gross receipts. That is the holding of Rosenfeld, Meyer & Susman v. Cohen, 191 Cal. App. 3d 1035, 1050-53 Cal. Rptr. 14 (1987). In upholding the trial court’s use of a “gross revenue” calculation of profits for distribution among a firm and its departing partners, the Court of Appeal in Rosenfeld was presented with strikingly similar facts to the case at bar. Among the many issues on appeal was that portion of the judgment concerning how profits would be distributed among the partnership and the departing partners on entertainment projects negotiated by the firm prior to its dissolution. Although it would have been a simple matter for the partnership to provide an accounting that differentiated percentage fees according to projects commenced before and after dissolution, the partnership declined to do so. Instead, the trial court concluded, the partnership had deliberately established a method of accounting to frustrate the departing partners’ ability to prove their share of business income.
Based on its analysis of the trial court record, and relying on the “duty to account” obligation of a partner, reflected in the predecessor to Corporations Code 16404, the Rosenfeld Court stated,
“(t)he position of (the firm) was not unlike that of other trustees who fail to keep proper records of the dates and amounts of receipts and expenses; such fiduciaries have the burden of establishing that data and, upon their failure to do so, a computation may be made on the basis of gross receipts, even though that approach is unfavorable to them.” (Emphasis supplied). 191 Cal. App. 3d at 1051.
Citing Larkin v. Jesburg, 191 Cal. App. 2d 272, 277, 12 Cal. Rptr. 655 (1961) (partner cannot escape liability by failing to reproduce records or testimony to account for funds chargeable to him); Kennard v. Glick 183 Cal. App. 2d 246, 250, 7 Cal. Rptr. 88 (1960) (an agent who fails to keep an account creates a presumption against himself, and brings upon the burden of accounting for all that comes into his hands); and Purdy v. Johnson, 174. Cal. 521, 530, 163 P. 893 (1917) (trustees are obligated to render full account of their dealings, and where there has been a failure to keep trust records, or a refusal account, all presumptions will be against trustee). In upholding the trial court’s award of fees on a “gross receipts” basis, the Court of Appeal in Rosenfeld reasoned,
Surely where a fiduciary has a legal duty to allocate receipts between those in which its beneficiary has some interest and those in which the beneficiary has none, and is fully and singularly capable of making that allocation but fails to do so, a court is justified in calling upon the fiduciary to bear the burden of differentiation at trial. This is true, a fortiori, where the fiduciary’s failure is deliberate and for the purpose of frustrating recovery by the beneficiary.
Id at 1051-52
Here, Defendants’ failure to comply with the Courts’ Order is even more egregious. Defendants not only have the statutory obligation to account, they were specifically ordered by this Court to render an accounting of all profits and benefits, together with any operating expenses, by August 16, 2005. Defendants have submitted an accounting that consists solely of an identification of amounts received by Manzarek and Krieger, principally as salary. Unlike the Rosenfeld firm, which claimed it was not capable of making a distinction between profits earned prior to or after dissolution, it is beyond dispute that Defendants have the requisite books and records to satisfy their accounting obligations to the Court and to Plaintiffs. Their failure to provide this information is simply a continuation of the sharp tactics and gamesmanship that have been Defendants’ modus operandi throughout this action. Their willful disregard of and disrespect for this Court’s ruling, amounts to a wholesale failure of proof, and on that basis Plaintiffs and their partnership should be awarded the gross receipts derived from Defendants’ use of the name The Doors.
Rosenfeld is strikingly similar to this case for yet another reason. There, after being faced with the dire consequence of their unsuccessful “hide the ball” litigation tactic regarding the required accounting, which is what Defendants have done here, Rosenfeld sought to reopen the evidence two months after the Statement Of Decision but before entry of judgment, so that it could provide the very data it previously refused to give. In affirming the trial court’s exercise of discretion in denying the motion to reopen the evidence, the Court said,
“The Court concluded that the failure to introduce evidence on the (accounting) issue was neither inadvertent nor excusable, but was the product of a knowing and informed choice of trial tactics.” 191 Cal. App 3d at 1052-53
This is precisely the situation now before the Court. Defendants should now be stuck with their decision not to provide the accounting information requested. They made their bed, and now they should be forced to sleep in it.
B. Application Of Precisely The Same Analysis In Copyright Law.
While Plaintiffs recognize that the instant litigation is not a copyright infringement action, the law regarding the determination of profits in that arena, albeit statutory, is remarkably similar and illustrative. Under Federal law, copyright infringers may be liable to the copyright owner for all profits realized from their unlawful activity. There, the burden of the plaintiff is to introduce evidence of the Defendants’ gross revenues from the infringing activity. It then is the burden of the infringer/wrongdoer to establish relevant and applicable expenses to be deducted from those revenues in determining the amount of profits to which the plaintiff is entitled. See 17 USC 504: Frank Music Corp. vs. MGM, 772 F2d 505, 514-515 (9th Cir. 1985).
The rationale of the copyright law is precisely the same as that which applies to a partnership’s entitlement to profits and benefits as a result of a partner’s misappropriation of assets.
C. The Amount Due Densmore
The Court ordered disgorgement in favor of Densmore of one-third of the amount of profits earned from January 1, 2003 to April 18, 2003. This consisted of six performances. As discussed above the Defendants’ failure of proof of any operating expenses during that period, Densmore should receive one-third of the gross receipts from those concerts. Exhibit 163, the Agency Group’s “Finals By Artist” report, reflects that the gross receipts after taxes received by DTI for those six performances was $1,361,826.00. For sake of simplicity, and because of the inability to calculate merchandise revenues from those six shows, Densmore is willing to accept from Defendants one-third of the content receipts for those six concerts, as defined on Exhibit 163 or $453,942.00.
V. DEFENDANTS’ REQUEST TO PAY ONLY 50% OF THE AMOUNT TO BE DISGORGED IS DISINGENUOUS AND SHOULD BE DENIED
Defendants urge that they should be obligated to pay to the Old Doors Partnership (whose partners are Densmore, Manzarek, Krieger and the Estates) only 50% of that partnership and will simply get back. In their words. “(f)rom an accounting standpoint, it would be superfluous to obligate Manzarek and Krieger to make payments of 100% of the disgorged amount to the Old Doors Oral Partnership, only to have 50% returned to them.” And they urge that from a “legal perspective” the Plaintiffs only can recover the “specific loss which each has suffered.”
What the Defendants conveniently ignore is that (1) the actions were brought individually and on behalf of the partnership, which the Court acknowledged by ordering the disgorgement in favor of the Old Doors Partnership, and (2) that the partnership is a distinct legal entity, with its own powers, rights and obligations. The fact that the funds are paid to a partnership does not necessarily mean that the funds are automatically or immediately disbursed to its partners. It is operating for the partnership, to be used and disbursed as the partnership deems best.
VI. CONCLUSION
For the reasons set forth, and especially given Defendants’ conscious decision not to provide any proper accounting of profits, as directed by the Court, Plaintiffs respectfully request that Manzarek and Krieger be ordered to pay over to Plaintiffs the gross amount of their revenues from touring and related activities, as demonstrated by the evidence adduced to date and to presented at the September 16, 2005 hearing. Plaintiffs contended this amount should be $453,842 to Densmore, and at least $8,673,174. to the Old Doors Partnership) plus such additional gross receipts determined by the Court not to have been included in its earlier calculation of $10,035,000).
(Concurrent with the filing of this Objection, Plaintiffs also are filing a Motion to Add Doors Touring, Inc., As A Judgment Debtor. That motion restates that which is obvious i.e., that the Defendants’ liability is for more than just what was received by them in the way of a “pay check:” from their loan-out corporation, and seeks to add Doors Touring, Inc. “(DTI) as an additional judgment debtor. Although the trial testimony of Alan Goldman was that DTI had no “income”, thus making it basically a worthless potential judgment debtor from an income point of view, it is equally clear that it may have assets that are a “benefit” derived from the misappropriation of the name “The Doors,” on which a constructive must be imposed. In particular, the testimony was that the intellectual property rights of the MTV Japan video of the Defendants’ concert performance was to soon revert to DTI. There may be other assets in the form of intellectual property rights related to DVDs and CDs that should be held in trust for Plaintiffs per Corporations Code 16404, e.g., rights to master recordings. There also many be other income streams about which Plaintiffs are presently unware.)
(Defendants have identified Mr Goldman as one of their two witnesses on September 16. Plaintiffs intend to serve a subpoena on Mr Goldman requesting that he produce at that time all documents reflecting the gross receipts received by Doors Touring, Inc, Diamond Night Productions, LLC, wire transfers to Manzarek and Krieger, and all other documents reflecting the amount paid by promoters, merchandisers and others relating to performances by any band in which Manzarek, Krieger and Astbury from January 1, 2003 to the date of the hearing. Furthermore, as reflected in the accompanying declaration of S. Jerome Mandel, 9, Plaintiffs now are aware that in June 2005, Defendants caused to be created a company known as D21C, Inc. The aforementioned subpoena also will request information regarding the revenues received by that Corporation related to performances by the Defendants for concerts that were scheduled and promoted as of July 22, 2005, the date the Court issued its Statement Of Decision and Order re Permanent Injunction.)
MANDEL, NORWOOD & GRANT
By: Jerome Mandel
Dated August 22 2005
Attorneys for Plaintiff and Cross-Defendant
JOHN DENSMORE and Plaintiffs COLUMBUS AND PEARL M. COURSON
HINOJOSA & WALLET
By: Jeffery Forer
Dated August 22 2005
Attorneys For Plaintiffs GEORGE MORRSON and CLARA MORRISON
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:29:05 GMT
This is an interesting one in which the Defendants Krieger/Manzarek have attempted to prevent the Plaintiff Densmore/Estates getting a close look at some of their financial documents.
BACKGROUND
The Judge ordered in his Statement Of Decision that accounting was to be complete and in reference to that fact and under penalty of perjury RM and RK accountant Alan Goldman declared the accounting submisison acurate.
Plaintiffs filed an objection requesting the Judge to make good on the Decision submitted on July 21 2005 which stipulates an accurate accounting. The objection goes further considering the fact that DTI is shown to pay out RM and RK salaries, where is the rest of the money that flowed in and out of that enity enabling payments to be made? The Objection asks for the "net worth" of a new corporation formed on June 8 2005 called D21C, Inc.
Defendants filed a motion to squash the subpoena served by Plaintiffs which requested all of the accounting figures for any enitity using The Doors name prior to the July 22. This would include DTI and D21C. In this motion the Defense also requested the date for submission of the accounting be changed to Sep 15 of which a day early date was granted.
The Judge considered the motion to squash subpoena and in Sep 15 (filed Sep 20) filed the ruling below.
Notice Of Ruling Sep 15 2005 Filed Sep 20 2005
FILED LOS ANGELES SUPERIOR COURT
SEPTEMBER 20, 2005
JOHN A CLARKE, CLERK
BY ELIZABETH TORRES, DEPUTY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Case No. BC289730
Complaint filed 2/4/03
Consolidated with
Case No. BC294495
Complaint filed 4/23/03
Assigned to Hon. Gregory Alarcon
NOTICE OF RULING
(Hon. Gregory W. Alarcon, Dept 36)
JOHN DENSMORE, etc..
Plaintiff,
Vs.
RAYMOND MANAREK, an individual; ROBERT KRIEGER, an individual; IAN ASTBURY, an individual’ DOORS TOURING, INC., a California corporation; and Does 1 through 20, inclusive,
Defendants.
RAYMOND MANZAREK and ROBERT KRIEGER, as individuals and on behalf of several California partnerships,
Cross-Complaints,
v.
JOHN DENSMORE, an individual,
Cross-Defendant.
COLUMBUS COURSON, PEARL M. COURSON, GEORGE MORRISON, CLARA MORRISON,
Plaintiffs,
v.
RAYMOND MANZAREK, ROBERT KRIEGER, IAN ASTBURY, DOES 1 through 500, inclusive,
Defendants.
On Thursday, September 15, 2005, the Court heard Defendants Raymond Manzarek, Robert Krieger and Doors Touring, Inc. and Third Party Alan Goldman’s Notice of Motion and Motion To Quash Subpoena Duces Tecum of Alan Goldman. Martin D. Singer, Esq., and Paul Karl Lukacs, Esq., of Lavely & Singer, P.C., appeared on behalf of Movants. S. Jerome Mandel, Esq., of Mandel, Norwood & Grant, appeared on behalf of Plaintiff John Densmore and Plaintiffs Columbus Courson and Pearl M. Courson. Jeffery Forer, Esq., of Hinojosa and Wallet, appeared on behalf of Plaintiffs George Morrison and Clara Morrison.
The Court issued a Tentative Ruling, a copy of which is attached. After argument by all sides, the Court ADOPTED the Tentative Ruling.
Dated: September 16, 2005
LAVELY & SINGER
PROFESSIONAL CORPORATION
MARTIN D. SINGER
WILLIAM J. BRIGGS, II
PAUL KARL LUKACS
By: Paul Karl Lukas
Attorneys for Defendant/Cross-Complainants
ROBERT KRIEGER and
RAYMOND MANZAREK and
Defendants IAN ASTBURY and
DOORS TOURING, INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
CASE NO. BC 289730
TENTATIVE DECISION ON MOTION TO QUASH SUBPOENA DUCES TECUM OF ALAN GOLDMAN
Hearing Date: September 7, 2005
Moving Party: Defendant Cross-Complainants
RAYMOND MANZAREK and ROBERT KRIEGER and IAN ASTBURY and DOORS TOURING, INC., and Third-Party ALAN GOLDMAN
JOHN DENMORE, Etc.
v.
RAYMOND MANZAREK, an individual;
ROBERT KRIEGER, an individual;
IAN ASTBURY, an individual;
DOORS TOURING, INC., a California corporation; and
DOES 1 through 20, inclusive,
Defendants.
I. INTRODUCTION
On July 21, 2005, this Court entered a Statement Of Decision (SOD) that ordered Raymond Manzarek and Robert Krieger to serve an accounting. The Court scheduled a hearing with regard to the accounting to be held on September 16, 2005. On August 19, 2005, Plaintiff Densmore caused the subpoena to be served on third party Goldman. In addition to requiring that Goldman appear, which he already planned to do, the Subpoena requires that Goldman bring 13 category of documents. Defendants filed this motion to quash or limit the document requests.
II. LEGAL STANDARDS
CCP 1981.1 provides that the court may quash a subpoena requiring the attendance of a witness or the production of documents, in its entirety or partially. The Court may make any order to protect the parties from unreasonable or oppressive demands or unreasonable violations of a witness’ right of privacy.
III. DISCUSSION
Defendants contend that Goldman should not have to bring documents previously provided. The deposition of Goldman demanded the production of documents in 72 different categories. Goldman and Defendants invited counsel to copy numerous document and plaintiffs did so. This subpoena would require Goldman to once again search for, identify and produce thousands of pages previously made available to Plaintiffs.
Defendants contend that Goldman should not have to produce documents created after the State Of Decision. The Statement Of Decision required Defendants to serve an accounting with regard to contents performed under the name “Doors of the 21st Century” (D21C) and defendants ceased use of that name as of July 22, 2005, the documents should be limited to that time period.
Defendants argue that the Subpoena reaches entities other than defendants. The defendants are Krieger and Manzarek. Doors Touring, Inc., was never a defendant and Astbury was fully exonerated after trial on the merits. Several of the requests seek documents regarding entities other than Defendants, Doors Touring, Inc. or Diamond Night Productions, LLC. (For example 5, 6, 7, 8 any business entity which Manzarek or Krieger has interest; 11 & 13 All writings prepared at any time to reflect assets or depict earnings of D21C. This violates these other entities’ privacy and due process rights.
Finally, Defendants contend that the Subpoena inappropriately seeks Document regarding net worth and assets. The Court ordered that “profits” be divested. (SOD pp. 41-42). This is inappropriate unless a party is seeking the information for punitive damages. Cal. Civil Code. 3295.
Plaintiffs state that the subpoena does not require anything different from what the Court ordered (Supporting documentation for all profits earned from and after June 30, 2004 and all profits earned prior to April 18, 2003 see SOD p. 42:8-43:3)
The documents previously produced are hardly sufficient and do not account for profits after July 2004. Plaintiff have no objection to receiving a summary of previously produced documents as long as there is back-up documentation.
Plaintiffs dispute Defendants’ assertion that the Subpoena must be limited to documents prior to July 22, 2005. Defendants rely only on the Mr Goldman’s declaration that they ceased to use the name on July 22. Defendants continued to derive profits from use of that name even after ceasing to use the name since previous promotion for post July 22 concerts utilized the name.
Plaintiffs state that it is clear that Defendants must produce documents reflecting benefits that many be under any entity owned by Defendants. The document requests limit these documents to revenues that were generated by a band including Defendants. Futhermore, Defendants must produce document regarding assets as those will indicate whether any other entity should be added as debtor for purposes of ensuring, pursuant to the SOD, that the Doors name is no longer used. Plaintiffs have no interest in net worth and do not object if financial statements are redacted for “the liabilities that otherwise would be disclosed in normal course of preparation of such a document.”
The Court ordered the disgorgement of any profits that were made through the use of the names. All of the document requests seek information relevant and necessary to the determination of those figures. Defendants may have profited from use of the name even if the name ceased to be used after July 22. The requests are limited to revenues earned from a band including these Defendants. Plaintiffs do not object to Goldman summarizing or indicating which documents have already been produced, provided that there is back-up of those documents. Only Document request Number 11 seeks net worth of D21C. This request should seek only the assets or earnings statement.
IV. CONCLUSION
Defendant Cross-Complainants RAYMOND MANZAREK and ROBERT KRIEGER and IAN ASTBURY and DOORS TOURING, INC. and third-party Alan Goldman’s Motion to Quash Subpoena is DENIED.
Document Request No. 11 should redact the request for “net worth.”
Dated this 15th day of September 2005
Hon. Gregory W. Alarcon
Superior Court Judge
It is interesting that within hours of the Judges Ruling of September 15th the Defendants filed an Appeal on the morning of September 16th. This Appeal is for the Statement of Decision and Perm Injunction.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:29:48 GMT
This document deals with the Densmore attempt to unravel the labyrinth of corporate layers that made up the profits Krieger Manzarek made from using The Doors name.
Below are a couple of explanations to assist your understanding of the document.
Piercing the corporate veil describes a legal decision to treat the rights or duties of a corporation as the rights or liabilities of its shareholders or directors. Usually a corporation is treated as a separate legal person, which is solely responsible for the debts it incurs and the sole beneficiary of the credit it is owed. Common law countries usually uphold this principle of separate personhood, but in exceptional situations may "pierce" or "lift" the corporate veil. A simple example would be where a businessman has left his job as a director and has signed a contract to not compete with the company he has just left for a period of time. If he set up a company which competed with his former company, technically it would be the company and not the person competing. But it is likely a court would say that the new company was just a "sham", a "fraud" or some other phrase,[1] and would still allow the old company to sue the man for breach of contract. A court would look beyond the "legal fiction" to the reality of the situation.
Piercing the corporate veil is not the only means by which a director or officer of a corporation can be held liable for the actions of the corporation. Liability can be established through conventional theories of contract, agency, or tort law. For example, in situations where a director or officer acting on behalf of a corporation personally commits a tort (a wrongdoing), he and the corporation are jointly liable and it is unnecessary to discuss the issue of piercing the corporate veil. The doctrine is often used in cases where liability is found, but the corporation is insolvent.
Reverse piercing the corporate veil is the act holding a shareholder personally liable for the debts of the corporation and then (when taking his assets as damages) reaching into the assets of other corporations to which he is a shareholder.
Normally when a corporation takes on too much debt and the creditors want their money, it goes insolvent (bankrupt). However, if the corporate formalities have not been observed (there was commingling of personal and corporate funds, there was a failure to maintain the corporate records, etc.) and adhering to the limited liability rules of corporations would promote injustice, a creditor can "pierce the corporate veil" and reach past the limited liability into the personal assets of the shareholder(s).
However, if the personal assets of the shareholders are mostly stock in other corporations that have also taken too much debt, this doesn't help much (because the stocks wouldn't be worth much on the market and dissolving those other corporations means their assets would be paid to creditors before they can be distributed to the shareholders). In that situation, the court can "reverse pierce the corporate veil" and take the assets of the other corporations, bypassing the line of creditors.
FILED
Los Angeles Superior Court September 9, 2005 John A Clarke, Clerk
S. Jerome Mandell, SBN 51091
Lilly Lewis, SBN 100999
Elizabeth K. Gaine, SBN 226423
Mandel, Norwood & Grant
2001 Wilshire Blvd., Suite 270
Santa Monica, California 90403-5627
Attorneys For Plantiff and Cross-Defendant
JOHN DENSMORE and
Plantiffs COLUMBUS and PEARL M. COURSON
Jeffery Forer, SBN 108310
Hinojosa & Wallet
2215 Colby Avenue
Los Angeles, California 90064-1504
Attorneys For Plantiffs GEORGE MORRISON and CLARA MORRISON
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
JOHN DENSMORE, individually and on behalf of California General Partnerships comprised on John Densmore, the Estate of Jams Morrison, the Estate of Pam Courson, Raymond Manzarek, and Robert Krieger
Plantiff
v.
RAYMOND MANZAREK, an individual; ROBERT KRIEGER, an individual; IAN ASTBURY, an individual; DOORS TOURING, INC., a California corporation and Does 1 through 20, inclusive,
Defendents.
AND RELATED CROSS-ACTION
PEARL COURSON, individually and as guardian ad item for COLUMBUS COURSON, each on behalf of the DOORS MUSIC CO., a California general partnership and on behalf of THE DOORS, a California general partnership, and GEORGE MORRISON and CLARA MORRISON, each on behalf of the DOORS MUSIC CO., a California general partnership, and PEARL COURSON, individually and as guardian ad litem for COLUMBUS COURSON, and GEORGE MORRISON and CLARA MORRISON, individually with respect to the seventh cause of action,
Plantiffs
v.
RAYMOND MANZAREK, ROBERT KRIEGER, IAN ASTBURY, THE DOORS TOURING COMPANY, a California entity of unknown form, and DOES 1 through 500, inclusive,
Defendants.
Case No. BC289730
Complaint Filed 2/4/03
Consolidated with
Case No. BC294495
Compliant Filed 4/23/03
Assigned to Hon. Gregory Alarcon
PLANTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO ADD DOORS TOURING, INC., AS A JUDGMENT DEBTOR AND OBJECTIONS TO AND REQUEST TO STRIKE DECLARATION OF ALAN S. GOLDMAN
Date: September 16, 2005 Time: 8:30am Dept: 36
I. INTRODUCTION
Defendants’ Opposition to the motion to add Doors Touring, Inc. (DTI) as a judgment debtor essentially asks this Court to elevate form over substance. The defendants proclaim repeatedly and emphatically that Manzarek and Krieger observed the highest decree of regard for corporate “formalities” in both the formation and operation of DTI. They point out that annual meetings were held or consents obtained, that Manzarek and Krieger’s ownership interests in DTI were openly acknowledged, that DTI was adequately capitalized, and, finally, that DTI never diverted its assets or profits. But the problem is that Manzarek and Krieger diverted theirs. The plaintiffs do not seek to pierce the proverbial “corporate veil” so as to render Manzarek and Krieger personally liable. Manzarek and Krieger are personally liable. Rather, plaintiffs seek to ensure that Manzarek and Krieger do not evade their personal liability for misappropriation of a partnership asset by using DTI’s “separate” corporate existence as a means to insulate from execution the very profits and benefits which they are required to disgorge, namely, the profits and benefits derived from their unlawful use of the name The Doors.
In short, Manzarek and Krieger’s observance of corporate formalities proves too much. The truth, it is DTI’s veritable “separateness” and defendants’ observance of the same that empowers this Court to add it as a judgment debtor in or to (1) protect the judgment and promote justice in light of enduring equitable principals, (2) enforce the letter, spirit, and intent of this Court’s Statement of Decision, and, most importantly, (3) ensure that Manzarek and Krieger do not shield from divestment inside the fictitious walls of a “separate” entity the very profits derived from their wrongdoing required to be disgorged. Although the Statement of Decision contemplates personal liability against Manzarek and Krieger for all of the profits and benefits earned by their touring activities, adding DTI as a judgment debtor ensures completeness, by making its assets, including its control over future intangible (as opposed to Manzarek and Krieger’s valueless shareholder “interests”), subject to execution.
II. PLAINTIFFS ARE ENTITLED TO ALL OF THE PROFITS AND BENEFITS DERIVED FROM TOURING BY THE DOORS OF THE 21ST CENTURY
The defendants’ Opposition is so entangled in irrelevancies that it conspicuously avoids any discussion of the real issue before this Court. The issue is how best to enforce a judgment that entitles the plaintiffs to recover all of the profits and benefits derived from the use by defendants’ new touring band of partnership asset, i.e., the name The Doors. The plaintiffs are entitled to a judgment encompassing all of these profits irrespective of whether they found their way directly into Manzarek and Krieger’s pockets or whether Manzarek and Krieger benefited from them indirectly by funneling band revenue into DTI and then using that revenue to pay the expenses engendered by their own unlawful use of the name, i.e., overhead, attorney’s fees, and salaries.
The Court is not so much being asked to engage in a reverse alter-ego analysis as it is being asked to enforce the rules governing partners and partnerships codified in Section 1640(B )(1) of the California Corporations Code. Section 1640(B )(1) requires partners to account for and disgorge “any property, profit or benefit…derived from a use by the partner of partnership property.” The statute does not distinguish between “property, profit, or benefit” paid or transferred to the offending partners and “property, profit, or benefit” employed and used by the offending partners for their own personal benefit. All such “property, profit, and benefit” must be held in trust for the partnership, and Manzarek and Krieger may not violate that trust by transferring the “property, profit, and benefit” over which they serve as trustees to a corporation owned and controlled by them and then using that “property, profit and benefit” for their own accounts and on their own behalf.
This Court’s Statement of Decision requires Manzarek and Krieger to divest themselves of and turn over to the plaintiffs all of the profits realized from concerts, tours, performances, recordings, and performances by The Doors of the 21st Century. It did not intend to insulate from recovery profits realized from those activities but funneled into DTI. The defendants cannot escape this single, pervasive truth: Virtually all of the evidence adduced at trial concerning the defendants’ concert revenue citied by the Court in it’s Statement of Decision was DTI’s revenue. The defendants don’t even begin to refute the argument that the revenue was used exclusively for the benefit of Manzarek and Krieger and must thus be disgorged under Section 1640(B )(1). Instead, they focus on the irrelevant assertion that the scrupulously observed corporate form, while conscientiously disregarding the true substance of the transactions and their own transparent self dealing/
III. THE OBSERVANCE OF CORPORATE FORMALITIES DOES NOT CREATE AN IMPERMEABLE CORPORATE WALL THAT SHIELDS FROM EXECUTION A LARGE PORTION OF THE PROFITS DERIVED FROM THE MISAPPROPRIATION
In a full 27 pages, the Opposition stresses the defendant’s observance of corporate formalities and religiously avoids discussion of the true nature of the transactions at hand. Thus, the defendants wish this Court to disregard the fact that Manzarek and Krieger employed DTI as the instrumentally by which to accomplish their misappropriation of the name The Doors. They wish this Court to ignore the fact that Manzarek and Krieger may freely transfer and have freely transferred monies between and among themselves and DTI as they single handedly choose. Instead, and relying principally on Sonora Diamond Corp. v. Superior Court (Sonora Union High Sch. Dist.), capitalized, maintained adequate corporate records, sometimes employed its own agents and managers, and did not conceal or misrepresent the defendants’ ownership. But while these facts might militate against piercing the corporate entity from the outside in so as to hold the shareholders personally liable, they do not militate against “piercing” the corporate entity from the inside out so as to ensure that the judgment encompasses all profits derived from the use of a partnership asset by The Doors of the 21st Century, including those that the defendants funneled through DTI and caused to be used on their behalf and for their benefit.
IV. THE DEFENDANTS INCORRECTLY ASSERT THAT NEITHER CALIFORNIA NOR FEDERAL LAW PERMITS REVERSE CORPORATE PIERCING
Although they criticize the plaintiffs from relying on two federal cases (amidst a host of California cases) to support their argument that DTI is Manzarek and Krieger’s alter ego, the defendants rely exclusively on Federal law or the law of the States other than California to discredit the reverse-piercing theory. For example, Cascade Energy and Metals Corp. v. Banks, 89 F.2d 1557 (10th Cir. 1990), on which the defendants rely, was a diversity case decided under Utah law which declined to use the reverse-piercing theory for the simple reason that “it (was) far from clear that Utah ha(d) adopted the doctrine of “reverse piercing, much less the variant” urged by the judgment-creditors. Id., at 1575. More importantly, in Cascade, the Court did not reject the reverse-piercing analysis outright, as the defendants claim, but rather, simply concluded that the particular facts of that case militated against its use. The problem there was that the defendant was not sole shareholder of the corporation in question, and therefore, the reverse piercing sought by the judgment creditors would prejudice the rights of “other non-culpable shareholders.” Id. Moreover, the Court found it noteworthy that the judgment-creditors had freely chosen to deal with the corporations and had omitted in their contracts to allocate risk to the corporations although they had been in a position to have done so. Id., at 1576. But the Court did acknowledge that reverse piercing would be appropriate where, as here, the plaintiffs exerted no control over the corporation and could not have acted contractually to protect themselves from the loss. Id. Finally, in Cascade, the Court found that any injustice or inequity to the judgment-creditor was not connected to the lack of separateness between the corporation and its controlling shareholder. Id. at 1578. Here, in contrast, it was the very lack of separateness between Manzarek and Krieger, on the one hand, and DTI on the other, combined with their unfettered control over its operations and accounting, that permitted them to use DTI as the instrumentality of their own wrongdoing.
Similarly, in Scholes v. Lehmann, 56 F.3d 750, 758 (7th Cir. 1995), also citied by the defendants, there was not full unity of ownership between the individual and the corporation and thus, reverse piercing would work a “wrong (against) the other shareholders.” Finally, in SEC v. Hickey, 322 F.3d 1123 (9th Cir. 2003), also cited by the defendants, the Court noted that the individual, although he exerted some control over the corporation, did not own any part of it. Id. at 1128. But noticing in SEC v. Hickey which was decided under California law, suggests that the reverse piercing theory may not be used in this State, but rather that the facts of that particular case did not justify its use. Indeed, in that case, the Court, applying California law, ultimately held that “(t)he district court…was authorized to freeze the assets of the (corporation) so long as doing so was necessary to protect and give life to the disgorgement” that had been ordered against the individual because he had unfettered control over the corporation, had used the corporation to pay his personal debts, and had taken as income corporate money “that he (had) ordered paid to him.” Id. at 1131.
Defendants seek to execute against DTI’s assets because doing so is “necessary to protect and give life to the disgorgement” ordered by this Court, in that (1) while the defendants are clearly personally liable for the full amount of the judgment, they have rendered their shareholder interests in DTI valueless for purposes of execution, (2) they have used DTI to pay personal debts and otherwise benefited from funneling to DTI the monies they are required to disgorge; and (3) to ensure the collectibility of the judgment and prevent future exploitation by DTI, the plaintiffs should be able to execute against the assets, including the intangibles, which DTI is likely in the future to hold.
V. THE PLAINTIFFS MOTION IS TIMELY
The defendants’ assertion that the plaintiff’s motion is untimely is nothing less than astonishing. The motion was made at the Court’s invitation and was set to be heard on the date selected by the Court. (“The court will entertain a motion by plaintiffs to hold DTI liable on the judgment against the individual defendants on an alter ego theory, to be heard at the September 16, 2005 hearing on the accounting issues.” July 21, 2005 Statement of Decision. In. 26.)
In any event, nothing in the cases on which the defendants’ rely supports the notion that the plaintiffs’ motion is untimely. In Oregon Products Company v. Ramos and Kohler, 148 Cal. App. 2d 679 (1957), the Court simply refused to pierce the corporate veil and hold the appellant individually liable because the factual findings in the case were not “in accordance with such a theory.” Id., at 684. Likewise, nothing in Judelson v. American Metal Bearing Co., 89 Cal. App. 2d 256, 263 (1948), deals with the timeliness of a motion to add a corporation as a judgment debtor. There, the Court simply stated that “in order that the acts and obligations of a corporation be legally recognized as those of a particular person, and vice versa, the complaint must allege and it must be shown that by the evidence, that the organization of the corporation is in some measure fraudulent or prompted by dishonesty, or that the corporation committed or intended to commit fraud, or that injustice will be done if the corporate entity is not disregarded.” 89 Cal. App.2d at 263 (emphasis added). (2) But clearly, this was not a temporal deficiency. Indeed, it is beyond dispute that the plaintiffs may amend their complaint to conform to proof (even after trial) and under Code of Civil Procedure Section 187, the Court is empowered to add a judgment debtor even after the judgment has been entered in order to designate “the real defendants.” Hall, Goodhue, Haisley & Barker, Inc. v. Marconi Conf. Center Bd., 41 Cal. App.4th 1551 (1996). Notably, the defendants’ Opposition is devoid of any discussion of Section 187 or Hall.
VI. THE ESTATES DO NOT LACK STANDING TO BRING THE MOTION
The defendants contend that the Estates may not seek to add DTI as a judgment debtor because DTI was not a party to the Estates’ civil action. But this argument begs the question. The Estates’ pleadings may be amended to conform to proof and DTI inasmuch as its rights were fully represented at trial, may be added as a judgment debtor under Section 187, irrespective of whether it was named in the Estates’ complaint. Nothing in Miller & Luxe, Inc. v. Nickel, 141 F. Supp.41, 46 (N.D. Cal. 1956), on which the defendants rely, involved “standing” to assert alter ego allegations. Rather, Miller dealt with the question of whether absent persons whose interests in property might be affected by the judgment were indispensable parties. The Court determined they were not inasmuch as the Court could frame its decree to protect the interest of the absent parties. Id.
VII. CONCLUSION
For all of the foregoing reasons it is respectfully requested that the Court add Doors Touring, Inc., as an additional judgment debtor and enter such other and further orders as it deems necessary to carry out the true intent and spirit of its Statement of Decision.
(1) The defendants quote Cal. Practice Guide: Corporations (The Rutter Group 2005), 2:57:7, for the proposition that California courts and the “federal courts of appeals have rejected the ‘reverse piercing theory.” This is not an accurate statement. As stated in C.F. Trust, Inc. v. First Flight Limited Partnership, 306 F 3d. 126, 135 (4th Cir. 2002), “Many jurisdictions recognize that the same considerations that justify piercing the corporate veil may justify piercing the veil in reverse.” 1 William Meade Fletcher Cyclopedia of the Law of Private Corporations 41.70 at 685 (rev. vol. 1999) (citations omitted.): see also 718 Arch St. Assocs. V. Blatstein (in re Blatstein), 192 F 3d 88, 100-01 (3d Cir. 1999); American Fuel Corp. v. Utah Energy Dev. Co., 122 F 3d 130, 134 (2d Cir. 1997); Permian Petroleum Co. v. Petroleos Mexicanos, 934 F 2d 635, 643 (5th Cir. 1991); LFC Mkting, Group, Inc. v. Loomis, 116 Nev. 896, 8 P 3d 8941, 846 (2000); Roepke v. Western Nat. Mut. Ins. Co., 302 N.W. 2d 350, 352-53 (Minn. 1981): Litchfield Asset Mgmt. Corp. v.. Howell, 70 Conn. App. 133, 149-52, 799 A.2d 298 (2002)”. As recognized in C.F. Trust, supra, the courts that deny a claim for reverse veil piercing, “typically have done so because the facts of the given case did not support reverse veil piercing, not because they rejected outsiders reverse veil piercing per se.” Id., at fn. 5. This is certainly Court noted that in a reverse veil piercing case, the observance of corporate formalities is not the lynch pin of the argument. Rather, the judgment creditor must show “a unity of interest and control between the individual and the corporation and the individual used the corporation to commit fraud or legal wrong.” Id., at 136. here, the plaintiffs have established both factors. In Litchfield Asst Management, supra, 70 Conn. App. 133, the Court noted that it was particularly appropriate to use reverse veil piercing where the debtor “did not receive regular distributions, but rather. Paid her personal bills directly using…company funds.” That is exactly what Manzarek and Krieger did.
(2) The Judelson Court’s use of the term “vice versa” clearly reflects California’s acceptance of the reverse piercing theory to recognize that the obligations of the individual should, in certain circumstances, be those of the corporation.
Dated: September 9, 200
Mandel, Norwood & Grant
By: Lilly Lewis
Attorneys For Plaintiff and Cross-Defendant
JOHN DENSMORE and Plaintiffs COLUMBUS and PEARL M. COURSON
Dated: September 9, 2005
Hinojosa & Wallet
By: Jeffrey Forer
Attorneys For Plaintiffs GEORGE MORRISON and CLARA MORRISON
EVIDENTIARY OBJECTIONS AND REQUEST TO STRIKE THE DECLARATION OF ALAN S. GOLDMAN
Plaintiffs generally object to the Declaration of Alan S. Goldman filed in opposition to the plaintiff’s motion to add DTI as a judgment debtor and request it be stricken in its entirety as irrelevant. The Declaration recites a virtual litany of formalities observed in the formation and operation of DTI, but does not refute the established facts that favor adding DTI as a judgment debtor, including that (1) DTI received the fruits of the defendants’ wrongdoing including receipts from concerts and touring activities; (2) the defendants despite having used DTI as a repository for profits and benefits generated by their use of partnership property, i.e. the name The Doors, have refused and contine to refuse to account thereafor; (3) Manzarek and Krieger have used DTI to pay their personal expenses, including attorney fees; (4) Manzarek and Krieger’s interests in DTI have been rendered valueless for purposes of execution; (5) adding DTI as a judgment debtor would permit the plaintiffs to reach DTI’s assets, including intangibles that DTI may receive in the future and would prevent DTI from exploiting the same; and (6) it would promote fraud and injustice to permit Manzarek and Krieger to use DTI as a fictitious vehicle by which to exclude from the judgment a large portion of the profits and benefits generated by their wrongdoing, including revenues disbursed and expenses paid on their behalf.
Dated: September 9, 2005
Mandel, Norwood & Grant
By: Lilly Lewis
Attorneys For Plaintiff and Cross-Defendant
JOHN DENSMORE and Plaintiffs COLUMBUS and PEARL M. COURSON
Dated: September 9, 2005
Hinojosa & Wallet
By: Jeffrey Forer
Attorneys For Plaintiffs GEORGE MORRISON and CLARA MORRISON
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:30:19 GMT
Ray Manzarek did an interview with John DeBella for 102.9 WMGK back in September 2008 in which he made a few claims that upset the Densmore camp which resulted in John's attorney contacting the DJ to make a few clarifications to the interview. Mr. DeBella: Please excuse the informality of this e-mail, as opposed to a letter, but I wanted to send it right away, as I am leaving shortly for a trip. I am John Densmore’s attorney, and have just finished listening to your recent interview with Ray Manzarek, promoting the concert for ROTS, which was sent to me by e-mail earlier this week. While I am used to hearing Mr. Manzarek expound on his theories of the case he lost, it is unfortunate that the facts portrayed in your interview, as well as in your comments/questions, were not entirely correct (except for the fact that Manzarek and Krieger certainly lost the litigation after a lengthy trial with more than 35 witnesses). It is apparent that Mr. Manzarek does not want to acknowledge the facts proven at trial. It is equally obvious that you did not read either the Trial Court’s opinion or the opinion of the Court of Appeal, both of which are readily available and quite detailed. If you are going to discuss Mr. Densmore and this case, perhaps you should consider brushing up on the facts before trying to recite their consequences on public radio. A few observations: 1. The Judge’s name is not “pinky,” and it is insulting to Judge Alarcon (who spent years on this case), the Courts, and all who worked on the case, to refer to him as such. 2. Contrary to what was said by Mr. Manzarek and you, it is absolutely clear that Manzarek and Krieger did NOT initially go out to perform as The Doors of the 21st Century. They began performing as The Doors, plain and simple, despite agreeing with John Densmore that they would do no such thing. 3. The name and logo of The Doors is owned by a partnership, of which Manzarek and Krieger are but two (50%) of the four partners. They never secured the consent of the partnership to use a partnership asset, namely the Doors name and logo, for their own benefit and their own profit. In fact, Mr. Densmore was specifically promised that the logo would not be used, but it was. In fact, Mr. Manzarek is well aware of the fact that the logo for the Doors cannot be used by others, and even Oliver Stone was prohibited from using the logo for the movie The Doors! As for the name The Doors of the 21st Century, that name was adopted after the suit began, under circumstances set out more fully in the Court’s decision. It was not as described by Mr. Manzarek, who apparently does not recall the events correctly, which does not surprise me, given his testimony during the case. 4. Mr. Manzarek denied under oath that any single member of the partnership could veto anything, despite acknowledging that very fact in his own words in a commentary track to a Doors video/DVD, and in his own CD Myth and Reality. 5. What the Court ordered was consistent with California law, namely that if a partner misappropriates a partnership asset for his or her own personal profit, those profits must be restored to the partnership. That was the award, that $3.2MM be returned to the partnership, of which Manzarek and Krieger are 50% partners. John Densmore never was awarded $5MM for anything. He gets his partnership share of the $3.2MM (plus accrued interest), plus an additional $80,000 awarded to him directly. 6. John Densmore and the Estates, being the successors to Jim Morrison, were awarded attorney fees, as permitted under the law. That issue now is on appeal, too, as was the decision on the merits (which Manzarek and Krieger lost). We hope that the Estates and John will prevail, and that Manzarek and Krieger will lose their appeal. If that is the case, then there is another $$2+MM in fees and costs to be reimbursed to the Estates and to John. John Densmore is not getting $5MM, never was getting $5MM, and Manzarek’s repeated statements to that effect are not only counterproductive, they simply are untrue. You can ask Mr. Manzarek about his motivations for continuing to misrepresent what occurred. 7. As for the invitation to play in the “new band”, those facts are clearly set forth as well. Suffice it to say that John never opposed Manzarek and Krieger touring, performing or singing Doors music. They are great musicians, and he always has acknowledged that. He never once tried to stop them from doing that. What he opposed was them calling themselves the Doors. As for John participating, his position was clear. “You are not the Doors with only two members out of four. When Jim shows up to sing, I’ll show up and play the drums.” There is a lot more I can say, but I think you get the flavor. If you are truly interested in these events, as you must be to discuss them on a show that likely reaches millions of people, I urge you to go to the source documents, Judge Alarcon’s lengthy decision and the Court of Appeal opinion. This is a time when we all are focusing on the truth, whether in politics or our personal lives. There is no reason why the truth should not be told when discussing this iconic band. Finally, let me note that The Doors partnership still exists as an entity, and does business every day without major issues, etc. I do not listen to your show, as I am in Santa Monica. But I do hope that you will read the materials available to enlighten yourself, and perhaps even clarify the facts in a subsequent show. Thank you for your time and patience in reading this missive. S. Jerome Mandel Posted on this forum 26/9/08 forum.johndensmore.com/index.php?showtopic=2831 |
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:31:18 GMT
One of the interesting things about the exhibits provided for the Manzarek/Krieger accounting is the number of different organisations involved in what was simply at first glance a band touring.
I am looking at the scans now on the original document and can see employee cheques from Doors Touring Inc for both RM and RK which is a damning indictment in itself that Krieger/Manzarek were using The Doors name to promote thier band.
Over $150,000 is paid to Robert and Lynn Krieger Trustees of The Krieger Family Trust by Diamond Nights Productions and the same to Raymond and Dorothy Manzarek Trustees of The Manzarek Family Trust which seems odd as I never thought Lynn and Dorothy were members of the D21C.
The more cynical among us might conclude that the more organisations/parties involved the easier it becomes to hide exactly what was made from the misappropriation of The Doors name.
Just a thought!
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gizmo
Door Half Open
Posts: 113
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Post by gizmo on Jan 5, 2011 10:40:32 GMT
the good thing (for ray and robbie) is, that if lynn and dorothy are involved in the buissnes they should get a part of the money cake as well, if rots would split the money equally between the five of them(bandmembers) than ray and robbie would get as much money from the gigs as the rest of the band but now that lynn and dorothy are involved they get more from each gig.
i don't know if they have to pay for copyrights as well, coz in that case they are paying the doors inc for the use of the songs(thats what all coverbands have to do(but mostly don't)) they are getting that money back from the doors inc.(coz they created the song and all money should be split in four equal pieces).
each time a song is played on the radio the doors inc is earning money so when rots play somewhere, the radiostations are going to play some doorstunes to get the ticket sale running (and the doors inc bank account as well).
it's all a way of making extra money
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Post by TheWallsScreamedPoetry on Jan 5, 2011 11:41:22 GMT
it's all a way of making extra money Which is all it was ever about for those three. Myself I am with the dead guy and think The Doors worth a bit more than that. I don't begrudge any of them being rich but it would be nice if they did it with a bit of style rather than just be as greedy and as dishonest as pretty much all the rest. For me The Doors always stood for something better than. Back in the 70s I always thought these guys stood four square with the dead lead singer and put thre art above the cash. I used to argue just that with mates all the time that. Boy have my silly illusions been well and truly shattered in the last 10/15 years.  if rots would split the money equally between the five of them(bandmembers) Only Ray and Robby get any of the cake mate. The other three are just the hired help. Ray learned from his time with The Doors that lesson. Astbury got 12% of the concert revenue when he was with them but I seriously doubt that anything like that gets shared between the bass player drummer and whatever idiot gets the lead singers job that week. |
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gizmo
Door Half Open
Posts: 113
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Post by gizmo on Jan 7, 2011 14:18:17 GMT
Which is all it was ever about for those three. Myself I am with the dead guy and think The Doors worth a bit more than that. I don't begrudge any of them being rich but it would be nice if they did it with a bit of style rather than just be as greedy and as dishonest as pretty much all the rest. For me The Doors always stood for something better than. Back in the 70s I always thought these guys stood four square with the dead lead singer and put thre art above the cash. I used to argue just that with mates all the time that. Boy have my silly illusions been well and truly shattered in the last 10/15 years. i don't know for john, he's the one who went his own way and formed other projects to make a nice living. ray and robbie had their solo projects but always mentioning that they where one of the doors, and i think that john is the only one who went on with his life instead of ray and robbie who kept on living in the past (almost denying the death of jim and therefor playing a coverband of the doors). i've been to one show of rots and i must admit that for a coverband they where pretty good. but the whole show was an imitation of the miami show. but great to see ray and robbie play,coz they made good music in the past |
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Post by TheWallsScreamedPoetry on Jan 7, 2011 16:12:44 GMT
i don't know for john, he's the one who went his own way and formed other projects to make a nice living. ray and robbie had their solo projects but always mentioning that they where one of the doors, and i think that john is the only one who went on with his life instead of ray and robbie who kept on living in the past (almost denying the death of jim and therefor playing a coverband of the doors). i've been to one show of rots and i must admit that for a coverband they where pretty good. but the whole show was an imitation of the miami show. but great to see ray and robbie play,coz they made good music in the past Densmore has had his fair share of mentioning he was a former Door but you indeed make a fair point. Densmore was accused of living in the past by Ray in several interviews but John has done stuff outside music that was a million miles away from The Doors whilst Ray especially is a full time Doors/Jim Morrison groupie. I applaud Densmore for his stance against Ray and Robby when they nicked The Doors name but stuff like the 2008 65th birthday in LA when they used that to sell the Matrix album, the shoe and recently that Godawful film which is a travesty of Oliver Stone proportion in which John was a participant makes me feel he is not all that different to the other two. |
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gizmo
Door Half Open
Posts: 113
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Post by gizmo on Jan 10, 2011 17:16:17 GMT
i don't know for john, he's the one who went his own way and formed other projects to make a nice living. ray and robbie had their solo projects but always mentioning that they where one of the doors, and i think that john is the only one who went on with his life instead of ray and robbie who kept on living in the past (almost denying the death of jim and therefor playing a coverband of the doors). i've been to one show of rots and i must admit that for a coverband they where pretty good. but the whole show was an imitation of the miami show. but great to see ray and robbie play,coz they made good music in the past Densmore has had his fair share of mentioning he was a former Door but you indeed make a fair point. Densmore was accused of living in the past by Ray in several interviews but John has done stuff outside music that was a million miles away from The Doors whilst Ray especially is a full time Doors/Jim Morrison groupie. I applaud Densmore for his stance against Ray and Robby when they nicked The Doors name but stuff like the 2008 65th birthday in LA when they used that to sell the Matrix album, the shoe and recently that Godawful film which is a travesty of Oliver Stone proportion in which John was a participant makes me feel he is not all that different to the other two. he was only selling from his old band, not that they made a new cd with his old band and a new singer. the matrix album can be sold by the old members, it's good that one of them died, coz else they would try a reunion like shitloads of bands do these days. on the other hand i'm sometimes thinking of what it would sound like........... but thats a what if. the oliver stone movie wasn't that bad, if you don't know the full story. there's not one biography filmed in a way that you can get the real story, coz every action gets a reaction so if you see someone jumping from a building, you only know that he jumped down, but not the reason why. maybe the biography by danny suggerman is a complete lie, i can't tell what the truthy is coz when jim died i was still in a liquid form. all i know is that i don't trust the media (newspapers, tv, magazines etc) coz it's never the full truth. i havent seen the other flick yet but i hope to get it on dvd soon (just to complete the dvd collection) but, i don't hope it is as bad as all ppl say who have seen it. but for as long as there is a market for music and dvd ppl will try to make money from you(AND ME). we still want to see something wich we haven't seen yet, the only thing we don't know if there are still new things availlable? all we know is that the doors inc. keeps on saying that they got a full room with undiscovered stuff. if that's a room the size of a toilet, we've seen the last "new thing" with the voice of j.deppshit and legacy had the last "new" version of celebration of the lizard, and than they can make a toilet in that room coz it's done. |
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Post by darkstar3 on Jan 12, 2011 14:26:44 GMT
One of the interesting things about the exhibits provided for the Manzarek/Krieger accounting is the number of different organisations involved in what was simply at first glance a band touring. I am looking at the scans now on the original document and can see employee cheques from Doors Touring Inc for both RM and RK which is a damning indictment in itself that Krieger/Manzarek were using The Doors name to promote thier band. Over $150,000 is paid to Robert and Lynn Krieger Trustees of The Krieger Family Trust by Diamond Nights Productions and the same to Raymond and Dorothy Manzarek Trustees of The Manzarek Family Trust which seems odd as I never thought Lynn and Dorothy were members of the D21C. The more cynical among us might conclude that the more organisations/parties involved the easier it becomes to hide exactly what was made from the misappropriation of The Doors name. Just a thought! I find the most interesting of all of the receipts is the wire transfers as payment for the "Ray Manzarek Jazz Festival."  |
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Post by TheWallsScreamedPoetry on Jan 13, 2011 9:21:10 GMT
Like everything to do with Ray you can bet a Ray Manzarek Jazz Festival would not be cheap. Bit like our Marks & Spenser add. This is not just a jazz festival .......this is a Ray Manzarek Jazz Festival. One thing your research has shown beyond doubt is that Ray Manzarek has all the integrity of a parasite on the ass of sewer rat. |
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Post by TheWallsScreamedPoetry on Jan 29, 2011 12:51:05 GMT
A couple of Doors fan views that appeared in the Summer 2003 edition of TheDoors4Scorpywag fanzine. Before of course we knew as much as we do today.
‘Madness in a Whisper’…..John Densmore rocks the boat with criticism of his band-mates new venture.
Sharon X from Germany gives her view on The Doors Law-suit(s).
As far as I am concerned it is not a question of "is Densmore right
or not". That question will be decided in court with all the legalese that comes with a lawsuit. It is the question WHY he filed a lawsuit.
Like everything in life, WHY is the most compelling and hardest of all questions. Like Densmore, I think there are circumstances that I would totally
disagree with him. Like when fans are begging for a reunion and they are willing to do a free concert. Ok, call it "The Doors", they have my blessing. The context in which this lawsuit is filed is far more important.
I recently read an article on Densmore in the German edition of "Rolling
Stone". John was never my favourite Door, but after reading this he sharply
raised in my list of "Most respected people".
I like copyright, I really do. Copyright prevents Microsoft to steal my work
and make money out of it, as they did with numerous BSD licensed software.
Copyright prevents people to steal my poems and make money out of it to which
they are not entitled. But when copyright is corrupted in a legal or moral
sense I hate it. I feel that nowadays copyright gets corrupted more and more. Big movie studio's and record companies think it's right to corrupt a CD in such a way that it becomes impossible for me to make perfectly legal copies or
compilations. They think it is alright to charge me double for a DVD although
the cost of making a DVD is LOWER than a video. And still they are wondering
why they get pirated.. Microsoft thinks it is alright to let me phone a
zillion times in order to add a hard disk to my computer. The activation codes
for their products are linked to my hardware configuration. It has been
proved that their margin is 85%!!
And that is where it all boils down to.. money!
Money, money, money, money!!!
The GOD of the great US of A. Like I said before, I feel it is alright to make money.
Everybody should be able to eat the fruits of their work.
But at some point enough is enough. How many cars do you need? I can only drive one at the time, can't I?
And for the last few years it boils down on me that some of the Doors regard the fans as a cow that can be milked over and over again.
And if it won't give any milk anymore, slaughtered.
A few examples.
The box set was a great thing, absolutely. The fan community has always known that there is more in the safe of the Doors than just the studio albums and a few live albums. There were the bootlegs that filled the gap.
Sorry guys, if you don't bring out the goods we'll get it elsewhere.
And sure enough, we were ripped off by the bootleggers as well.
But we could well have done without the fourth CD, but if you say so, you're not a friend of the Doors anymore. Sure, it was a nice box, with a nice booklet full of pictures but as far as I am concerned I could have done without it, at a lower price. So about a year after a cut-up box set came out.. with a lower price tag. Then the re-mastered studio album set came out. Nobody was really waiting for that one. Apart from one or two new tracks or remixes. The "Best of the Doors" came out again, in three versions. Who was waiting for that "special edition" where the original tapes of "Riders on the Storm" was slaughtered in several
horrible ways??
They did that again on "Stoned immaculate", an absolute waste of money.
Please note, I'm not against remixes or experiments: as long as it is done
in a respectful way, like Fat Boy Slim did.
Please note, fans have ears! I'm anxiously waiting for new reissues.
Read my lips: anxious.
Some of my friends are collectors and they feel obligated to buy all that junk. Although some of them are starting to doubt they should get out their wallet for every single thing that is issued or re-issued.
On the other hand, some CD Recorders are running a little hot here…..
Whose fault, I ask you again.
Then finally the safe opened up.
Not to please the fans, but "to beat the boots" as Danny Sugerman put it.
There was a market and lots of money.
Unfortunately for him he put his business at a company that failed miserably
several times, so I'm not sure how much money they actually made.
Any idea how expensive it is to order a CD from Bright Midnight records in Europe? OK, let's share the costs. Your CD recorder or mine..?
That the defendants do not cherish the legacy of the Doors is only confirmed
when I read that Manzarek lets his kid play with an original Doors tape -
which he wastes.. forever!!!
Or sell "Riders on the Storm" to a commercial - something Morrison
DEFINITELY did not want!
At least when he was alive.
I frequently visit and like cover bands.
Some of these guys are really doing a good job - recreating the Doors as they were in the late sixties.
When the Doors would have been just a continuation of the original Doors they would have left that legacy alone ad create NEW music.
Move on, just like any normal band does.
But this is not a normal band.
This is a feeble attempt to cover themselves.
The Doors have tried to stay alive after Jim died - and they failed.
The only thing that is left of that effort is two obscure albums and a more
satisfying poetry album - with the regards of the late Jim Morrison.
His legacy lives on and does not need the Doors in order to stay alive.
It has done that successfully on its own merit.
Such a legacy has to be cherished - not marketed.
John seems to understand that.
No, the Doors of the 21st century is another attempt to make money -
"Beat the cover-bands". Sure, Sugerman did not say that, but I could almost hear him say it. Somebody had to say stop and they did it.
Densmore did it for the right reasons. I'm not too sure about the others.
I guess at least some of them would like to see a piece of the cake.
Nobody knows what Morrison would have said or done. He would now be
an old man of almost sixty years with a whole life behind him, living in a different time.
The rest is pure speculation. But I know what he said in the sixties:
"We're now gonna sing the national anthem. Shhhh, pay some respect. The
anthem: MONEY!!!"
--All yours, ShArOn
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Post by TheWallsScreamedPoetry on Jan 29, 2011 12:59:06 GMT
TeleVision Bleeding …
Jim Cherry from Chicago has been taking a look at the triumphs and controversy surrounding The 21st Century Doors during the first quarter of 2003 for TheDoors4Scorpywag and these are his observations.
Now that Ray Manzarek and Robby Krieger are touring with Ian Astbury and Stewart Copeland, John Densmore has filed suit against them for calling themselves The Doors, and Stewart Copeland has filed his own suit for breach of verbal contract, internecine boardfare has broken out, with people commenting through the prism of their own bias.
Let's take a look at the issue and usage with a view from one person's perspective and how Ray Manzarek and Robby Krieger are using their shared legacy in performance.
When The 21st Century Doors were put together by Ray Manzarek and Robby
Krieger, I thought it an interesting experiment.
After all ‘The Doors’ is their legacy as well Jim Morrison's, maybe they could write a new chapter in the Rock N' Roll annals.
The individual components they put in place I thought good choices.
I had long been of the opinion that Stewart Copeland was an underrated and forgotten part of The Police, as were The Doors after Morrison's death, so it was kind of cool to see him back out there.
While I had heard of The Cult and Ian Astbury before the VH-1 Storytellers program, it was only in passing.
On the Storytellers I liked Ian Astbury's performance, and The Cults version of Wild Child on the Stoned Immaculate CD is one of the better efforts.
I liked that performance so much, in fact that I went out and bought The Cult's beyond ‘Good and Evil’ album, which I liked, so I was not predisposed to disliking The 21st Century Doors.
As a matter of fact I was hoping that they'd be great, after all Ray and Robby (and John) are "our" hero's, and "our" band of a romantic gilded age.
But that does not exempt them from the standards of critical review, in some respects it probably holds them to a higher standard because along with Jim Morrison they lifted themselves to the pantheon of rock legends.
Shared Legacy
This is an issue that frequently gets overlooked in Jim Morrison adulation. The Doors is more than just Jim Morrison's legacy, it is the shared legacy of Jim Morrison, Ray Manzarek, John Densmore, and Robby Krieger.
For the most part the surviving Doors have shepherded that legacy well, with two boxed sets, Bright Midnight Records, video retrospectives and homage's to Jim Morrison.
The individual Doors also have successful projects away from The Doors, John and Robby in The Butts Band. Ray produced the band X in the eighties, he's collaborated with Michael McClure on various projects. John has had his stage shows, as well as his current Tribal Jazz Project, and Robby has toured with various bands of his creation playing Doors songs, as well as new compositions. At first glance Ray and Robby performing together seems like a Doors fans wet dream, but all ideas at first can seem good, but it is the execution of that idea that matters.
It has occurred before, that an artists early innovative work is overshadowed by later weaker efforts, that for one reason or another doesn't live up to the quality of the earlier works. And unfortunately the execution of this band whether it be "The Doors" or "The 21st Century Doors" is that it reeks of a tribute band sensibility and I don't know why that should be, I've seen both Ray and Robby perform and while it was exciting to see them perform songs I never once got the feeling I was seeing a tribute band, what I got then was a performer presenting his work of true and original creation without any pretences or trying to resurrect a moment that had passed. Robby's shows especially.
Doors songs have been a mainstay of his touring show and I have always enjoyed his shows, his new works as well as the well known classics, and no matter who has handled the vocals whether it be his son Waylon, Angelo Barbera, or Robby himself, I have never thought anyone was trying to imitate, or copy, Morrison, as it would be an obvious, self-conscious move.
Ian Astbury
Ian Astbury has probably taken on the most thankless job in Rock n' Roll history, being the first person to front a band with Ray Manzarek and Robby Krieger together since the death of Jim Morrison.
It may be obvious, and has been written before but he's ‘damned if he does and damned if he doesn't’.
But another level of this is Ian is living out a Rock N' Roll fantasy any one of us would kill for, and an opportunity that even very few professionals get;…. to actually get to front a band that helped fuel your Rock N' Roll dreams.
In their shows Ian Astbury has adopted the look and performance of Jim Morrison. The band has been using the image of Jim Morrison as a backdrop, saying it is an homage.
There's nothing wrong with an homage to Morrison, a tribute by his friends and band mates. But having Ian Astbury aping Morrison's look and stage manner lends a tribute band feel to the whole proceedings. Manzarek and Krieger are rock legends and virtuoso performers and should be relying on those talents and attributes to carry the performances. Astbury's "Jimtation" may be the sincerest form of flattery to one's rock idol, but it distracts from the performance at hand, and is a disservice to Astbury's own talents and strengths as a rock performer.
Jim Said...
It has been mentioned that while Jim Morrison was alive he said it was OK with him if the other Doors would go on without him, what Morrison said was "I would hope that since all three of them are excellent musicians, they would go on and create an instrumental sound of their own that didn't depend on lyrics."
There it is, should that be the last word? No, of course not. Manzarek, Krieger, and Densmore wanted to go on, are/were rumoured to have been auditioning other singers even before Morrison's death, and they definitely tried to work with Iggy Pop after Jim’s demise.
I don't think Jim Morrison would have begrudged the other Doors using another singer. But I think he would be disconcerted with someone mimicking his look and performance style, not only because it was his, but because the other person wasn't being himself, wasn't being true to himself.
A Shortcut to Singing:
"The Doors" on Jay Leno.. 16th January 2003
By the time it was time for "The Doors", the show only had five minutes left in the scheduled time slot so I knew it was going to be fast, possibly even running into the credits.
Jay introduced "The Doors" with the aside that he saw them when he was in college. Then cut to Ray who counted off, Stewart hit the familiar opening to ‘Light My Fire’, and then a wide shot of the group, and Ian Astbury; ...dressed in black denim, a dark sweatshirt, some silver rings, a huge necklace, and dark wrap-around shades that were reminiscent of Bono dressed as "the fly" from U2's ‘Achtung Baby’ tour.
But the fly was supposed to be a parody, satire.
Astbury's performance gave it a Doors tribute band feel.
I don't understand why this should be so though, it certainly didn't pertain to his performance on the VH-1 special.
Astbury did a few hops and a couple of other moves that seemed very reminiscent of Morrison, then the band went into the instrumentals which consisted of Ray and Robby doodling out a few interesting notes before going into the finish, unfortunately due to the time constraints everyone missed the dramatic high points of the song.
Overall it was a disappointing performance due to the time constraint, but mostly to the tribute band feel of Astbury's performance.
I know it's a thankless job for anyone who is fronting this band, the inevitable comparison to Jim Morrison just waiting for whomever dares to do it.
One of the unique things about The Doors was their ability to be ‘real’ on-stage, if Astbury were more open to using his own persona he might be capable of bringing something new to the piece, something that even Jim Morrison wasn't able to.
The Late, Late Show, with Craig Kilbourn, 30th January 2003
A much better performance than the Tonight Show, although The 21st Century Doors were still introduced as "The Doors".
The band did a tight, strong ‘Break On Through’, and this time the band was given an appropriate slot and the time they deserve to present their music, and not shoehorned in at the end of the show as an after thought.
The biggest improvement was the choreographing between the band and the TV show, Ray and Robby rightly getting a close-up during their solos, and much more intimate camerawork for the band as a whole, it was really cool to see Angelo in back playing bass and really getting into the music.
Even Ian Astbury's performance seemed a little more muted on using Morrison's theatrics, although there was one setback, what they had planned as their antiwar statement. Astbury went into the "dead cats, dead rats" section made famous on the Absolutely Live version of ‘Break On Through’, unfortunately he got noticeably lost in the poem before they went back into the song.
"You know, the main problem is John and Ray haven't been getting along too well since Ray's book came out. He said some stupid things about John because John said a few things about Ray in his book. So, boy, he (Manzarek) got back at him (Densmore). And then John has tinnitus, which is that ringing in your ears, so he's been, like, afraid to really play anything loud." Robby Krieger April 2001
Last Call, with Carson Daly, 20th February 2003
This performance has been much talked about on message boards since it was taped the week before broadcast.
It was taped on Ray's 64th birthday, and they played two songs for the audience ‘Roadhouse Blues’ and ‘Five to One’.
So there was a bit of a flurry wondering which song was going to be used on the show?
"The tragedy and loss of Jim Morrison weighs heavily on all of us, but this ain't no tribute band."
Ray Manzarek, September 2002
The braver choice would have been ‘Five to One’, but since ‘Roadhouse Blues’ is the more popularly known song it was almost a no-brainer as to which song would be shown, and that's the show's decision anyway.
Another good performance musically, Ray and Robby trading solos and repeating their virtuoso skills, there's no denying Ray and Robby's talent either separate or together, the truth is they play together well and you can tell they enjoy it.
Ian seems to be toning down the Jim Morrison histrionics and relying on the power of his voice and letting Ray and Robby be the show.
"The similarities between Jim and ian are quite amazing...they both have that dark brooding shamanistic power. There are only 12 astrological archetypes ( Eh??) and one of them is that Morrison/astbury Dionysian Lord Byron esque type.....I don't think ian is trying to be Jim but when he gets on stage i think he is slightly possessed by the spirit of Jim Morrison"
he goes on to explain.…
"We have a ceremony backstage where we pass around a pipe that has sweet grass in it and we do a Native American Indian blessing. I think that's what calls Morrison out of the ether and Jim joins us on stage in the persona of ian astbury" Ray Manzarek, July 2003 to Classic Rock Magazine.
One Last Thing…
In the movie, Eddie and The Cruisers, which was originally supposed to be about Jim Morrison but the producers couldn't secure the necessary rights, so the script was revamped. There's a scene, where Tom Berenger's character is in a bar with Ellen Barkin before seeing Sal's nightclub act.
Tom Berenger relates the story of how Eddie wanted a caesura at the end of a song and Sal thought it was pretentious and unnecessary, but since it was Eddie's band they did it the way he wanted.
Now since Sal was in charge of the band they play the song without the caesura. That seems to be the dynamic at work here.
Ray is the leader unfettered by Jim Morrison and the power he wielded over the group, he can now play the songs the way he wants and still use the legendary persona of Morrison without having to actually deal with him.
Sure Jim and Ray were good for each other, they had the skills the other needed, Jim the talented but erratic poet, and Ray the responsible, creative Apolloian.
Morrison was the spark that set off the other Doors creatively, but he was a double edged sword.
Sure he brought them fame and fortune but his antics also threatened their livelihood, he was a ready scapegoat for the others to blame for their problems, and to unite them.
Ironically, with no one to blame for their problems the 21st Century Doors destiny is in their own hands. JC.
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Post by TheWallsScreamedPoetry on Nov 9, 2011 11:40:12 GMT
From UNCUT magazine this is one of the court exchanges Densmore had with Manzarek/Krieger defence team. ........JD was on the witness stand and the defence asked him this 'Mr Densmore. So you've taken it upon yourself to be the sole protector of Jim Morrison's legacy.' JD replied 'No, I'm not alone. Out there in the audience is an 86 year old former Navy Admiral who agrees with me.' Now that was an awesome response that I am sure kicked ass and electrified the courtroom. Way better than Manzarek's pathetic attempts to lie and wheedle his way out of answering questions ....Go Densmore  "Listen if Jim comes back I am there. But don't call it The Doors without him!" John Desnmore.One of the most profound statements about the whole sorry saga. |
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