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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:04:41 GMT
This document is one of the replies made by the Plaintiffs to the defence Objection Document
Plaintiffs Reply Motion Sep 9 2005
FILED LOS ANGELES SUPERIOR COURT SEPTEMBER 9 2005
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
PLAINTIFF’S REPLY MEMORANDOM 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
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.
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 degree of regard to 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 from their unlawful use of the name The Doors.
In short, Manzarek and Krieger’s observance of corporate formalities proves too much. In truth, it is DTI’s veritable “separateness” and the defendants’ observance of the same that empowers this Court to add it as a judgment debtor in order 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 interests (as opposed to Manzarek and Krieger’s valueless shareholder “interests”), subject to execution.
II. PLAINTIFFS ARE ENTITLED TO ALL 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 the defendants’ new touring band of a 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 16404(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 statue 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 or benefit” for their won 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 the 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 was DTI’s revenue, and virtually all of the evidence concerning revenue cited by the Court in its Statement of Decision was DTI revenue. The defendants don’t even begin to refute the argument that that revenue was used exclusively for the benefit of Manzarek and Krieger and must this be disgorged under Section 16404(B )(1). Instead, they focus on the irrelevant assertion that they scrupulously observed corporate form, while conscientiously disregarding the true substance of the transactions and their own transparent self-dealing.
III. THE OBESVERVANCE OF CORPORATE FORMALITIES DOES NOT CREATE AN IMPEREABLE CORPORATE WALL THAT SHELDS 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 any discussion of the true nature of the transactions at hand. Thus, the defendants wish this Court to disregard the fact that Manazarek and Krieger employed DTI as the instrumentality 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 replying principally on Sonora Diamond Corp. v. Superior Court (Sonora Union High School District), 83 Cal.App.4th523 (2000), defendants focus on the facts that DTI was adequately capitalized, maintained adequate corporate records, sometimes employed its own agents and managers, and did not conceal or misrepresent the defendant’s 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 for 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 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 (had) 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 the 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, 56F3d 750, 758, (7th Cir. 1995), also cited 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 nothing 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 corporation 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 plaintiffs; 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. (“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, fn. 26)
In any event, nothing in the cases on which the defendants’ rely supports the notion that plaintiffs’ motion is untimely. In Oregon Cedar Products Company v. Ramos and Kohler, 148 Cal. App. 2d 679 (1957), the Court 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 timelessness 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 be shown 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 a fraud, or that injustice will be done if the corporate entity is not disregarded.” 89 Cal.App.2d at 263 (emphasis added). But clearly, this is 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 had 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 Estate’s 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 Estate’s 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 individual 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.
Dated: September 9, 2005
MANDEL, NORWOOD, & GRANT
By: Lilly Lewis
Attorneys for Plaintiff and Cross-Defendant JOHN DENSMORE and Plaintiffs COLUMBUS and PEARL COURSON
Dated September 9, 2005
HINOJOSA & WALLET
By: Jeffery Forer
Attorneys for Plaintiffs GEORGE MORRISON and CLARA MORRISON
EVIDENTARY 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 that it be stricken in its entirety as irrelevant. The Declaration recites a virtual litany of formalities observed I 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 the profits and benefits generated by their use of partnership property, i.e., the name The Doors, have refused and continue to refuse to account therefore; (3) Manzarek and Krieger have used DTI to pay their personal expenses, including attorney’s 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 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 COURSON
Dated September 9, 2005
HINOJOSA & WALLET
By: Jeffery Forer
Attorneys for Plaintiffs GEORGE MORRISON and CLARA MORRISON
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:05:30 GMT
Opposition Document Filed May 28 2004
FILED LOS ANGELES SUPERIOR COURT MAY 28 2004 John A. Clarke, Clerk By: W. Fernandez, Deputy
JOHN H. LAVELY, JR. WILLIAM J. BRIGGS, II HENRY L. SELF, III 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 Defendant IAN ASTBURY and DOORS TOURING, INC.
SUPRIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT John Densmore, Etc.,
Plaintiff,
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-Complainants,
v.
JOHN DENSMORE, an individual,
Cross-Defendant
AND ALL RELATED ACTIONS.
CASE NO. BC 289 730
(Related With Case No. BC 294 495)
OPPOSITION TO DENSMORE’S MOTION IN LIMINE FOR ORDER EXCLUDING PAROL EVIDENCE TO VARY TERMS OF 1971 WRITTEN PARTNERSHIP AGREEMENT
Final Status Conference Date: June 10 2004 Time: 8:30a.m. Dept. 36
Complaint Filed: February 4 2003 Trial Date: June 15 2004
(Hon. Gregory W Alarcon)
INTRODUCTION
Far from being the iron-clad commandment that Densmore makes it out to be, the parol evidence rule, which excludes extrinsic evidence that would vary the terms of a written contract under certain circumstances, is subject to numerous qualifications and exceptions that render it inapplicable under these circumstances.
Extrinsic evidence is admissible in this case with respect to the 1971 General Partnership Agreement because the key terms of that agreement are susceptible to multiple interpretations, and the defendants must be permitted to offer evidence that supports their reading of the contract. In this regard, the parol evidence rule does not apply here at all because the defendants do not offer extrinsic evidence to contradict or vary the terms of the agreement, but rather to explain the meaning of its words.
Furthermore, to the extent that the written agreement (as interpreted by the Court) fails to express the parties’ intentions, extrinsic is admissible in order to establish their true intent.
And, as a preliminary matter, Densmores motion must also be denied because it fatally fails to comply with the procedural prerequisites for a motion in limine.
II. DENSMORE’S MOTION IS PROCEDURALLY DEFICIENT.
Densmore’s motion fails to meet the procedural requirements applicable to motions in limine, which require that each such motion be accomplished by a declaration that includes:
(1) “A clear identification of the specific matter alleged to be inadmissible and prejudicial; (2) A representation to the Court that the subject of the motion had been discussed with opposing counsel….; (3) A statement of the specific prejudice that will be suffered by the moving party if the motion is not granted”
Local Rule 8.92. Because Densmore fails to submit any of the forgoing requisite evidence in support of the instant motion, it must be denied. Indeed, if he cannot show any specific prejudice that we would otherwise suffer, then there would seem to be little if any reason to grant his motion in limine.
III. EXTRINSIC EVIDENCE IS ADMISSIBLE.
The fundamental goal of contractual interpretation is, of course, to ascertain and give effect to the intention of the parties. See Bank of the West v. Superior Court (Industrial Indemnity Co.), 2 Cal. 4th 1254, 1264, 10 Cal. Rptr. 2d 538 (1992). “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” Cal. Civ. Code 1636 (emphasis added. The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including not only the words used in the agreement, but also “extrinsic evidence of such objective matters as
· The surrounding circumstances under which the parties negotiated or entered into the contract; · The object, nature and subject matter of the contract; and · The subsequent conduct of the parties” Morey v. Vannucci, 64 Cal. App. 904, 912, 75 Cal. Rptr. 2d 573 (1998) (citations omitted).
A. Because the Written Agreement Is Ambiguous, Extrinsic Evidence Is Admissible To Establish The Parties’ Intention.
The parol evidence does not prevent the admission and consideration of extrinsic evidence in this case with respect to the 1971 General Partnership Agreement because the key terms of that agreement are ambiguous. I.e., they are capable of multiple interpretations.
Where the language of a contract, in the light of all the circumstances, is fairly susceptible of differing interpretations, extrinsic evidence relevant to prove any such meanings is admissible. See Pacific Gas & E. Co. v. W. Thomas Drayage Etc., 68 Cal. 2d 33, 40, 69 Cal. Rptr. 561 (1968).
The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is…..whether the offered evidence is relevant to prove the meaning to which the language of the instrument is reasonably susceptible. A rule that would limit the determination of the meaning of a written instrument to its four corners merely because it seems to the court to be clear and unambiguous would either deny the relevance if the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained.
Id. at 37 (overruling “plain meaning” rule.) In this regard, the parol evidence rules does not apply here at all because the defendants do not offer extrinsic evidence to contradict or vary the terms of the 1971 General Partnership Agreement, but rather to explain the meaning of those words.
1. Paragraph Six Is Susceptible To Multiple Interpretations.
Paragraph Six of the 1971 General Partnership Agreement states that “each Partner shall have equal rights in the management and control of the Partnership business.” This vague provision (whether read alone or in conjunction with other, potentially contradictory terms elsewhere in the same document) may certainly be interpreted in a number of ways.
Pointing to the quoted phrase, Densmore contends it means, “(i)n other words, proposed decisions regarding the band’s governance must be unanimous and may be defeated by the veto of any single band member.” Motion In Limine 4:8-12.
Krieger and Manzarek, however, understand the clause to have a different, more plausible meaning; They believe it means just what it says – that each partner’s vote is worth no more and no less than the vote of every partner. *** As Densmore himself reportedly said just last year, “It’s all completely four parts, equal. It’s a sweet little democracy that Jim orchestrated with no lawyers, in a garage in Venice, California.” Andrew Dansbury, “Densmore Tries To Close The Doors,” Rolling Stone, Feb 4, 2003. Under basic notions of democracy, all voters have equal rights under the law; One person, one vote. Contrary to Densmore’s contention, equality in decision making in a partnership would seem to mean that one partner cannot hold any decision hostage by an un-fetted veto power. That a minority dissenter could outvote the majority of the partners, that is, veto or block the majority’s decision, is a curious interpretation of “equal rights,” indeed.
***Footnote: (This interpretation is also consistent with case law under California’s former codification of the original Uniform Partnership Act, which governs the partnership formed by the 1971 agreement, and provided” “All partners have equal rights in the management and conduct of the partnership.” Cal. Corp. Code 15018, repealed.)
Paragraph Six also goes on to provide that “no Partner, without written consent and authorization of all of the other Partners,” shall do any of seven enumerated actions, which concern the partnership’s relationships with third parties.*** In order that the second sentence of Paragraph Six not be interpreted in a manner totally inconsistent with the express meaning of the first sentence, the potential ambiguity that might exist as between the first and second sentence can only be resolved by interpreting the second sentence as dealing with and applying solely to situations where one partner of the three partners sought to make a decision or enter into an agreement binding on the partnership, the written consent of all the other partners was required.
Reviewing the highlighted language (“no Partner, without the written consent and authorization of all of the other Partners,” shall do any of those things on behalf or the partnership), it simply that no single partner – acting unilaterally – is permitted to bind the partnership with respect to third parties. In such a situation, he must seek the prior, written consent of his partners. On the other hand, the partnership – acting with the support of a majority of members (pursuant to Cal. Corp. Code 15018(h) – could do so without seeking prior, written consent from each partner. In this regard, Paragraph Six largely did little more that paraphrase provisions of the former UPA that would apply nonetheless. See, e.g. Cal. Corp. Code 15990(3), repealed (“Unless authorized by the partners or unless they have abandoned the business, one or more but less than all the partners have no authority to” perform five enumerated actions). This is a far cry from a contractual provision stating that all decisions regarding the band’s governance must be unanimous and may be defeated by the veto of any single band member. ****
***Footnote: (The full text of Paragraph Six is reprinted, among other places, on page 4 at note 1 in Densmore’s Motion In Limine.)
****Footnote: (Furthermore, pursuant to the familiar rule of construction inclusion (or expresso) unius est exclusio aleterius, the expression or inclusion of one thing necessarily implies the exclusion of the other. See White v. Western Title Insurance Company, 40 Cal. 3d 870, 881, 221 Cal. Rptr. 509 n. 4 (1985) (“This canon, based on common patterns of usage and drafting, is equally applicable to the construction of contracts” and statues). Applied to Paragraph Six of the 1971 General Partnership Agreement, this means that the list of seven specific actions delineated in subparagraphs A through G is exclusive; anything that is not included there would instead require only majority support pursuant to Section 15018(h) of the former UPA. See e.g., Stephenson v. Drever, 16 Cal. 4th 1167, 69 Cal. Rptr. 2d 764 (1997).
Certainly the attorneys for The Doors knew how to draft a document with a provision requiring that all decisions had to be unanimous, as they did in the February 8 1969 Doors Music Co. Partnership Agreement, and in the November 11, 1970 amendment to that agreement, which purported to require that all of the partners had to sign each agreement, the partnership entered into. There were no such provisions in the January 1, 1966 band partnership agreement, which was actually entered into and executed after the February 8, 1969 Doors Music Company partnership agreement and the November 11, 1970 amendment thereto.***
Where, as here, the meaning of the words used in a contract is disputed, the trial court must provisionally receive any proffered extrinsic that is relevant to show whether the contract is reasonably susceptible of a particular meaning. See Pacific Gas & E., supra, 69 Cal. 2d at 39-40. Indeed, it is reversible error for a trial court to refuse to consider such extrinsic evidence on the basis of the trial court’s own conclusion that the language of the contract appears to be clear and unambiguous on its face. See id. at 40 & n. 8. “Extrinsic evidence is thus admissible to interpret the language of a written instrument, as long as such evidence is not used to give the instrument a meaning to which it is not reasonably susceptible.” Morey, supra 64
***Footnote: (Contrary to the allegations of the plaintiff’s complaints in the two related cases, the written General Partnership Agreement dated as of January 1, 1966 was not entered into in January 1866, but was in fact drafted and signed by Manzarek, Krieger, Densmore and Morrison in January 1971, five years later – a fact that was just uncovered during the last weeks of discovery in this case. In fact, a memorandum dated January 5, 1971, by which David Berman, an attorney at Mitchell, Silberberg, & Kupp, requested an MSK attorney in the corporate department draft a written Partnership Agreement and date in January 1, 1966, enumerates the terms which should be included in the agreement. See accompanying declaration of Henry Self, Ex. A. Nowhere in the memorandum is there any reference to a requirement of unanimity or to any partner having the right to veto any proposed decision or proposed agreement that the majority of the partners might want to make. Moreover, when Berman sent the draft partnership agreement to The Doors, their business manager, Robert Greene, requested that he arrange for the four members of The Doors Partnership to sign the agreement. Berman referred to certain provisions, namely., Paragraphs 5, 6d, 6e, 7 and 9, which did not include the management provision. Nor does Mr. Berman’s letter say anything about unanimity or veto powers. See id., Ex. B. It is noteworthy that when the written agreement dated January 1, 1966 was prepared and signed in early 1971, the band had already completed all the concert tours and personal appearances that the band would ever do during Jim Morrison’s lifetime and the band was also just finishing the sixth and final studio album. Stated differently, during almost the entire career of the original Doors, the band operated not under a written partnership agreement, but under an oral understanding that simply did not include a requirement of unanimity among all partners regarding any proposed decision and did not give each partner a right to veto the proposed decisions of the other partners. Cal. App. 4th at 912.)
Where the court makes a preliminary finding that the terms of an agreement are reasonably susceptible to multiple interpretations, it is then the jury’s role as trier of fact to resolve any conflicts in the extrinsic evidence itself. See id. at 913; see also MacIntyre v. Angel, 109 Cal. App. 425, 435, 240, p. 2d 1047, 1054 (1952) (where the facts presented by extrinsic evidence are in dispute, “and the meaning of the contract is to be determined one way in one view of the facts, and another way in accordance with another view of the facts, then the determination of the disputed fact must be left to the jury”) (citation omitted). Because the parties’ proffered positions as to the band members’ meeting of the minds are so sharply in contrast, it lies with the jury to determine whose version of the facts to believe. Therefore, the disputed extrinsic evidence must be admitted at trial.
Parol evidence (including evidence of the parties’ conduct) is certainly permitted here to show how The Doors partners understood the governance of the band partnership and how members made decisions.*** If there is any ambiguity in the management provisions of the partnership agreement, as there certainly is in this case, then parol evidence and any other competent evidence may be considered in order to explain the ambiguity. See Cal. Civ. Code 1647 (“A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates”).
*** Footnote: (Since the management provision (i.e. Paragraph Six) of the 1971 General Partnership Agreement is substantially identical to the management provision. (i.e., Paragraph 8) of the written band partnership agreement dated January 1, 1966, the defendants should also be permitted to offer evidence showing that decisions of the original Doors band (Morrison, Manzarek, Krieger and Densmore) were not always unanimous. For example, Densmore strongly opposed some decisions but was required to got along with the majority – conduct that also shows there was in fact no right of veto on the part of any one partner.)
***Footnote: (The defendants do not contend that they are entitled to offer evidence of custom and practice in the music business as to how music groups make decisions in order to try to change the express terms of the written Partnership Agreement dated October 1, 1971, or to try to change any of the express terms of the previous written band partnership agreement dated January 1, 1966 (which, as was recently discovered, was actually entered into in January 1971.)
2. Paragraph Nine Is Also Susceptible To Multiple Interpretations
Paragraph Nine of the 1971 General Partnership Agreement states that, “upon the dissolution and/or termination of the Partnership, other than by reason of the death of any of the Partners, none of the Partners shall have the right to use the name “THE DOORS” for phonograph record purposes or in connection with personal appearances. “ As with Paragraph Six, this clause also embodies an ambiguity that may be explained by parol evidence.
Densmore reads it to mean that no fewer than all of the surviving members of The Doors (i.e. Densmore, Krieger and Manzarek) may continue to perform under that name or authorize any one else to do so. See Motion In Limine 5:17-19. The defendants, by contrast, understand it to mean that no one of the partners is able to use the name individually, but that two of the three may do so without the consent of the third. This interpretation is entirely reasonable, given that the leading English language dictionaries ascribe to the word “none” the primary definition “no one.” See e.g., Webster Revised Unabridged Dictionary (1998 MICRA, Inc.; The American Heritage Dictionary of the English Language, 4th Ed. (2000 Houghton Mifflin Co.) (“It is widely asserted that none is equivalent to no one, and hence requires a singular verb and singular pronoun: None of the prisoners was given his soup…’none’ is etymologically derived from the Old English word, ‘one’”.) Words of a contract must be understood in their ordinary and popular sense. See Cal. Civ. Code 1644.
Moreover, a termination of the partnership by the unilateral withdraw of one partner who is not willing to participate in any recording or personal appearances and is, therefore, abdicating responsibility and breaching his “best efforts” obligations under Paragraph 11 of the 1971 General Partnership Agreement,*** should not be considered the type of “termination” referred to in Paragraph Nine, since such an interpretation would purport to give any one partner the power to terminate the partnership without good cause and at the partner’s sole and arbitrary discretion, even if it was directly contrary to the best interest of the partnership and even if the termination was motivated by bad faith and was a breach of the partner’s fiduciary duty and a breach of the implied covenant of good faith and fair dealing. See Pasadena Live, LLC v. City of Pasadena, 114 Cal. App. 4th 1089, 1093, 8 Cal. Rptr. 3d 233 (2004). “The covenant of good faith finds particular application in situations where one party is invested with a discretionary power affecting the rights of another. Such power much be exercised in good faith.” Carma Developers (Cal.). Inc. v. Marathon Development California, Inc., 2 Cal. 4th 342, 372, 6 Cal. Rptr. 2d 467 (1992); See also Page v. Page, 55 Cal. 2d 192, 196, 10 Cal. Rptr. 643 (1961) (“Even though…..a partnership at will may be dissolved by the express will of any partner, this power, like any other power held by a fiduciary, must be exercised in good faith”) (citation omitted).
There is no evidence that, when the 1971 General Partnership Agreement was entered into or the March 11, 1971 amendment to the parties’ earlier 1966 partnership agreement was signed (the language of which was later included in Paragraph Nine of the 1971 General Partnership Agreement), any of the members of The Doors understood the provision to mean that, if any partner gave 30 days written notice to terminate the partnership, **** none of the other partners could use the name “The Doors” for personal appearances or to do recordings. In fact, Krieger recalls that, to the contrary, the parties agreed that if one band member quit or refused to play (which is the same as quitting the band), then the remaining two band members would be able to continue on with use of the band name. See e.g., Declaration of Defendant and Cross-Complainant Robert Krieger in Opposition to Motion for Temporary Restraining Order dated April 23, 2003 at 31.
The suggestion that Densmore, for example, could have decided to quit The Doors in 1971 before Jim Morrison died by giving 30 days notice of an intent to terminate*** under the 1971 General Partnership Agreement and thereby prevent Morrison, Krieger and Manzarek from continuing to perform and record as The Doors, is ludicrous. Even Densmore, in his own deposition, did not claim that this is what was discussed or was agreed to in or about March 1971 when the amendment was signed. Rather, he testified to the concerns about Jim Morrison’s health and Morrison’s intention at the time of the signing of the March 11, 1971 amendment.
***Footnote: (Motivated, for example, by a desire to quit or leave the band.)
****Footnote: The Partnership shall dissolve and/or terminat…..Upon thirty (30) days written notice by any Partner to the others of his desire to terminate the Partnership” 1971 General Partnership Agreement 9(H).
In conclusion, because the written words of the 1971 General Partnership Agreement are reasonably susceptible of Manzarek’s and Krieger’s interpretations, as discussed above, it would therefore be reversible error for the Court to refuse to consider extrinsic evidence by Manzarek and Krieger in support of their positions.
B. Because the Written Agreement Fails To Express the Parties’ Intention, Extrinsic Evidence Is Admissable to Establish Their True Intent.
If the Court were to conclude for some reason that the written words of the 1971 General Partnership Agreement are not fairly susceptible to the defendants’ interpretation, the parol evidence would nonetheless still be admissible because, in that case, the written agreement (as read by the Court) would not express the real intention of the parties.
“When, through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded.” Cal. Civ. Code 1640. Under such circumstances, “where the writing itself, through mistake, does not express the intention of the parties who entered into it, or one of them, and the writing does not therefore contain the real contract between the parties, the objection as to parol evidence is without merit.” Pasqualetti v. Galbraith, 200 Cal. 2d 378, 381, 19 Cal. Rptr. 323 (1962) (citing, inter alia, Chastain v. Belmont, 43 Cal. 2d 45, 51, 271 P. 2d 498 (1954).
IV. CONCLUSION
For the forgoing reasons, Densmore’s motion in limine for an order excluding parol evidence regarding the parties, written partnership agreement should be denied in its entirety.
DATED: May 28 2004
LAVELY & SINGER PROFESSIONAL CORPORATION JOHN H. LAVELY, JR. PAUL KARL LUKACS HENRY L. SELF, III
By: HENRY L. SELF, III
Attorneys for Defendants/Cross-Claimants ROBERT KRIEGER RAYMOND MANZAREK And Defendant IAN ASTBURY and DOORS TOURING, INC.
***Footnote: (Each Partner shall devote his best efforts to the operation of the Partnership and the advancement of the Partnership’s business.” 1971 General Partnership Agreement 11.)
DECLARATION OF HENRY SELF
I, HENRY L. SELF, III, declare and say that:
1. I am an attorney duly qualified to practice in all of the courts in the State of California, and am an associate of the firm of Lavely & Singer Professional Corporation, attorneys of record for Raymond Manzarek and Robert Krieger and Defendants Ian Astbury and Doors Touring, Inc. The facts stated herein are started at my own personal knowledge, and if called and sworn as a witness, I could and would testify competently thereto.
2. Attached hereto a Exhibit A is a true and correct copy of an internal memorandum from David Berman t Sherwin Samuels dated January 5, 1971. This document was obtained from files held by the law firm of Mitchell, Silberberg, Knupp LLP in the ordinary course of business. In the memorandum David Berman requested that Sherwin Samuels (an attorney in MSK’s corporate department) draft a written partnership agreement and date it January 1, 1966. Nowhere in the memorandum, which enumerates the terms to be included in the agreement, is there any reference to a requirement of unanimity or to any partner having a right to veto any proposed decision or proposed agreement that the majority of the partners might want to make.
3. Attached hereto as Exhibit B is a true and correct copy of a letter from the law firm of Mitchell, Silberberg & Knupp LLP to Bob Greene dated January 21, 1971. This document was obtained through discovery from files held by the law firm of Ziffren, Brittenham, Branca, Fischer, Gilbert-Lurie & Stiffelman LLP in the ordinary course of business. In the letter, which was apparently written by David Berman, he enclosed a draft partnership agreement, requesting that Mr. Greene (The Doors’ business manager) arrange for the four members of The Doors partnership to sign the agreement. Berman referred to certain provisions, namely, Paragraph 56, 6d, 6e, 7 and 9, which did not include the management provision. Nor does Mr. Berman’s letter say anything about unanimity or veto powers.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this 28th day of May, 2004, at Los Angeles, California.
Signed:
HENRY L. SELF, III
EXHIBITS: Sherwin Samuels
David Berman
Assignment
January 5 1971
Could you please have one of the associates in the Corporate Department prepare a Partnership Agreement between James Morrison, Robert Krieger, Raymond Manzarek & John Densmore, known as “THE DOORS”.
The agreement should commence on January 1, 1966, inasmuchas “THE DOORS” have been functioning pursuant to an oral agreement since that date. A Fictitious Name Certificate was filed early in 1966 under than name.
The partnership agreement should be terminable at the election of any of the partners. All income of the partnership should be divided equally among the partners and the receipts to be included in partnership income should be as follows:
1. The so-called “writer’s share” of performance income payable by ASCAP or any other performing right society to which any of the partners belong or may here after belong.
2. All amounts received by the partnership from Doors Production Corp. for the personal appearances of “THE DOORS”.
3. All amounts received from “The Elektra Corporation” in connection with recordings of "THE DOORS” made prior to _____________________.
4. All union scale payments received by “THE DOORS” in connection with “THE DOORS” recordings as opposed to the recordings of any of the individual members of “THE DOORS”.
If there is any other information required, I will, of course, be happy to obtain the same.
END.
What follows is the reply from David Berman to Bob Greene with a copy sent to Bill Siddons along with five copies of The Doors General Partnership Agreement.
January 21, 1971
Mr Bob Greene C/O Johnson & Harnand 10920 Wilshire Boulevard Los Angeles, California 90024
Dear Bob:
Enclosed please find five copies of the General Partnership Agreement between the members of THE DOORS. The enclosure corresponds to my understanding of how the partnership is to work. You should, however, carefully review it, in particular Paragraphs 5, 6D, 6E, 7 and 9.
If the enclosures are satisfactory, will you please have them executed by the members of THE DOORS and return at least one fully executed copy to me.
Kindest personal regards.
Sincerely,
For Mitchell, Silberberg & Knupp
DMB/bkp Encl. Cc: Mr Bill Siddons
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:05:55 GMT
These were among the first internet media reports to mention that Densmore was taking action against Manzarek/Krieger. DOORS CLOSED? John Densmore says he wants "clarity, not deception"...NME February 5, 2003 Former DOORS drummer JOHN DENSMORE is trying to stop his ex-bandmates from using the name "THE DOORS" at their reformation gig in LOS ANGELES this week. Densmore has accused former members, keyboard player Ray Manzarek and guitarist Robbie Krieger, of breach of copyright, trademark infringement and unfair competition in using the moniker for their "reunion" gig – which has Ian Astbury of The Cult on vocals and Stewart Copeland from The Police on drums. He told RollingStone.com: "The Doors" are Jim, John, Ray and Robbie. I don't care if they call themselves 'former members of The Doors",' 'the Hinges' or 'the Windows.' I just want clarity. I don't want deception." Densmore said he could have pulled an injunction and had the gig stopped, or demanded half the money along with dead singer Jim Morrison's estate, but opted instead to give them the chance to alter their name. He did not rule out heavier legal action if they don't comply, however. Manzarek and Krieger had invited the drummer to join them when they started performing again in 2001, with a rotating group of singers including Astbury, Scott Wieland and Scott Stapp lending vocals on a TV special. When they played again last year, Densmore declined, citing tinnitus, but now says that he doesn't feel comfortable doing Doors songs without Morrison. The remaining Doors had altered the name slightly, adding "for the 21st Century" on the end, but still used the old Doors typeface, which Densmore felt was unacceptable. He added: "No disrespect to Ian and Stewart," he says, "these are great musicians. But that show made sense to me: Six guys taking turns singing as a tribute to Jim. But one guy doing the whole night filling Jim's leather pants? Sorry. There's Doors cover bands in every major city." When are The Doors not The Doors? By Pat Nason UPI Hollywood Reporter Published 2/5/2003 2:12 PM LOS ANGELES, Feb. 5 (UPI) -- Two members of the classic rock band The Doors are reconstituting the group, but a former band mate is challenging their legal right to use the name The Doors. As keyboardist Ray Manzarek and guitarist Robbie Krieger prepare for a sold-out show Friday at the Universal Amphitheatre in Los Angeles, drummer John Densmore has filed suit over their use of the band's name and logo. The suit alleges breach of contract, unfair competition and trademark violation -- and seeks injunctive relief and monetary damages. The suit also names singer Ian Astbury and drummer Stewart Copeland as defendants. Astbury, formerly of the British band The Cult, and Copeland, formerly of The Police, have joined Manzarek and Krieger in a new incarnation of the band -- formerly fronted by Jim Morrison -- that turned out such rock classics as "Light My Fire," "Riders on the Storm" and "L.A. Woman." The new lineup goes by the name of the Doors of the 21st Century. Densmore told Daily Variety he had no problem with Manzarek and Krieger identifying themselves as former members of The Doors, but he objected to the new band using the old name. "I want to get the word out that it's misleading to call them The Doors," said Densmore. "I'm sad and hurt that they misused our name and logo." Manzarek told United Press International he had hoped that Densmore would be part of the new project, rather than party to a lawsuit. "He's got to do what he feels he's got to do," said Manzarek. "He was asked to play. Robbie, Tom (Vitorino, the band's manager), Ian and I -- we all asked John to play. He refused every time." Manzarek said he still hoped Densmore would change his mind. "We want John to come and play with us any time he feels like it," said Manzarek. "Come on John, join us and play." Densmore said Astbury and Copeland are excellent musicians, but the new lineup just isn't The Doors. "It's no disrespect to Ian," said Densmore, "but I don't like him filling Jim's leather pants." Manzarek said no one expects the new lineup to pass for The Doors, or for Astbury to pass for Morrison, who died at 27 in 1971. "I don't think anyone out there is going to be confused that maybe Jim Morrison will appear," he said. "I think Jim would be the first one to say, 'Go do it. Sing my words. Let people hear it the way we used to do it in a live situation.'" Manzarek, Krieger and Densmore performed in 2001 on "VH1 Storytellers," with singers including Astbury, Perry Farrell, Scott Weiland and Scott Stapp standing more or less where Morrison used to stand. When Manzarek and Krieger took the act on the road last year for a show at a Harley-Davidson 100th anniversary event in Fontana, Calif., Densmore did not participate due to ear problems, and was replaced by Copeland. According to Densmore's complaint, the four original band members agreed that they would share equally in the commercial exploitation of the band's music, that no one member would have the right to use the band's name, and that all business decisions would require unanimous agreement. The suit claimed that each member had the power to veto any use of the name. Over the years, Densmore said he has often vetoed the use of Doors music in commercials. In an article in The Nation last year, he said that kind of exploitation would violate the spirit of the band. Manzarek said the spirit of the band is alive and well. "It's interesting that The Doors reconvened as we are about to go to war," he said. "The '60s changed everything, yet here we are still fighting that battle. We're here to help." Manzarek said the band is negotiating to play future dates in "a lot of different cities" -- including New York, Boston and Philadelphia. He's also hoping they can set up a gig at the Fillmore in San Francisco. There are also plans to play at several European festivals this summer, and to record a new album of what Manzarek called "new Doors music." www.upi.com/view.cfm?StoryID=20030205-020059-5210rDoors close on Desmore Launch Music News (Friday February 14, 2003 10:44 AM) The two surviving members of The Doors have hit back at their former drummer after he brought a lawsuit against them over the use of the band's name. John Desmore is suing keyboardist Ray Manzarek and guitarist Robby Krieger over a Los Angeles concert at which the pair used a stand-in singer and drummer. Late Doors frontman Jim Morrison was replaced by ex-Cult singer Ian Astbury, whilst former Police drummer Stewart Copeland stood in for Densmore at the concert earlier this month. As a result, Desmore has brought legal proceedings against his two former bandmates, citing breach of contract, trademark infringement and unfair competition. However, Manzarak says Desmore gave his blessing for the band to use the name Doors 21st Century, and was happy for the concert to go ahead. "John has an open invitation," he said. "Everybody asked him and he said, 'No, my ears (are too damaged)'. "Then I said, 'Why not play hand percussion?' and John said, 'No way. I'm not a sideman'. Instead he then chose to sue us. He gave Robby his blessing (to use the name)." He continued: "This is ridiculous. The guy who put together the band and plays keyboards is performing with the guy who wrote 'Light My Fire', 'Love Me Two Times' and 'Love Her Madly'. "If we're not The Doors, then who is?" According to the BBC, the LA gig was attended by a number of gig promoters from across the US, with the band now receiving booking offers for April and May concert dates and summer shows in Europe. The Doors, who split following the death of Morrison in 1971, were one of the biggest bands of the 1960s. Their name and logo are owned jointly by the surviving three band members, together with the estate of Morrison and his late wife Pamela Courson.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:07:01 GMT
Within a month Stuart Copeland had broken an arm and was replaced by Ty Dennis. He was not pleased.
DOORS CLOSED Replacement drummer Stewart Copeland has broken his arm... NME December 3, 2002
A reformed version of THE DOORS have postponed their comeback shows because of an injury to their drummer.
Keyboardist Ray Manzarek and lead guitarist Robby Krieger recently announced plans to undertake a new tour, with Ian Astbury of The Cult on vocals and Stewart Copeland replacing founding member John Densmore on drums.
According to the Reuters news service, their first show, which was scheduled for the Las Vegas Palms on December 8, will be put back until January 19. The reason is that Copeland fell from his bike on a path near his Los Angeles home.
The group plan to return to Europe in the New Year for festival shows.
Rolling Stone March 10, 2003 - COPELAND SUES DOORS FOR $1M Ex Police drummer seeking damages for breach of contract
Former Police drummer Stewart Copeland has slapped keyboardist Ray Manzarek and guitarist Robby Krieger of Doors 21st Century (as a new incarnation of the Doors is now known) with a $1 million suit. Copeland -- who has filled the drum seat left vacant by original Doors drummer John Densmore since last summer -- claims that Doors 21st Century members Manzarek and Krieger breached an oral contract to use him for the band's upcoming tour and album.
"In or about February 2003, after exploiting the credibility, talent,and reputation to plantiff Copeland to launch and generate heat for the tour and album and once the success of the Doors 21st Century was assured, defendants breached the oral contract," reads the suit,filed Friday. "They purported to hire a replacement drummer, keeping plantiff's 20% of the net profits for themselves."
Copeland had played a handful of dates with the band last year before his elbow injury forced a cancellation of a December show. He reportedly aggravated the injury during the band's January 19th show in Las Vegas, and drummer Ty Dennis has filled in for the band's recent performances.
The lawsuit comes on the heels of a suit filed February 4th by Densmore against Manzarek, Krieger, Copeland and Ian Astbury, the former Cult singer who is singing in place of the late Jim Morrison.Densmore filed an injunction against this incarnation of the band's use of the Doors name and logo.
Representatives for Copeland, Manzarek and Krieger would not comment on the lawsuit.
Copeland Sues Over Doors Tour Sacking By Hugh Davies, Entertainment Correspondent NEWS.TELEGRAPH.CO.UK Filed: 17/03/2003
Stewart Copeland, the former drummer with The Police, is demanding $1 million (£630,000) compensation for being sacked from the first reunion tour of the iconic 1960s band The Doors.
Copeland, 50, claims that the band exploited his "credibility, talent and reputation" before he was dismissed "without cause', according to a lawsuit lodged in the Los Angeles Superior Court.
The Doors - or as they now style themselves The Doors of the 21st Century - are about to embark on a world tour, coming to Britain and Europe in June and July.
Their original Doors frontman, Jim Morrison, died from a heart attack in his Paris flat in 1971. The British singer Ian Astbury, who left The Cult in 1995, has been bought in to replace him for the tour.
Variety said: "It's the role he was born to play."
The Doors possessed a dark and brooding personality largely created by Morrison, who was notorious for unpredictable behaviour caused by alcohol and drugs.
The noisy and extrovert Copeland, the son of a CIA agent who settled in England in 1975 and founded The Police with Sting, had been expected to be a hit on the tour, which follows recent hugely successful reunions by bands such as Fleetwood Mac and The Eagles.
But, when asked at a New York awards show how he was enjoying The Doors, Copeland replied: "That's over man. That's done."
It has now emerged that he has been replaced by a Los Angeles session drummer, Ty Dennis, 32, formerly of the cult band, The Motels.
The bitterness is all very different from November, when The Doors' survivors, guitarist Robbie Krieger and keyboardist Ray Manzarek, picked Copeland after the band's original drummer John Densmore was said to fear an increase in his ear problems because of tinnitus.
Krieger said: "Stewart told us he had always been a fan of The Doors, and that it would be an honour to play with us - so he's joined up. He's a great player."
In no time at all the Courson and Morrison family had joined in.
NEWS - JIM MORRISON'S PARENTS & PARENTS IN-LAW SUE THE NEW DOORS
(4/25/03, 4 p.m. ET) -- The parents of late Doors frontman Jim Morrison and his widow Pamela Courson are suing the newly reformed edition of the Doors. George and Clara Morrison, along with Columbus and Pearl Courson, filed suit in Los Angeles Superior Court on Wednesday (April 23) against Ray Manzarek, Robby Krieger, and new singer Ian Astbury (of the Cult). The Morrisons and Coursons, who jointly own the late Jim Morrison's 25 percent stake in the band, want to stop the group from using the name "The Doors." They also claim that the group's name, likeness, logo, and music are being used without their consent.
In addition, the Morrisons and Coursons are the sole administrators of Jim Morrison's poetry and image, and claim both are being used without their permission. The lawsuit seeks unspecified damages, as well as legal fees and court costs. A spokesperson for the Doors hadn't seen the lawsuit and was unable to comment.
The reformed Doors are facing several other lawsuits. Original drummer John Densmore filed a motion in February to stop Manzarek, Krieger, Astbury, and Police drummer Stewart Copeland from using the name. He claimed that all parties had to agree to any business transaction--which he, the Morrisons, and the Coursons did not do-- and that only the original band could use the name. Copeland later filed his own suit against the band, after he injured his arm in a bike-riding accident and was replaced by drummer Ty Dennis. He claims breach of oral contract and is asking for more than $1 million in damages.
THE DOORS BEING SUED AGAIN...THIS TIME BY JIM MORRISON Friday April 25, 2003 @ 02:30 PM By: ChartAttack.com Staff
The Doors' splashy reunion, launched three decades after their initial demise, has not been going as swimmingly as the band intended. Yet another lawsuit has been filed against surviving members of the legendary `60s band The Doors — this time on behalf of the late Jim Morrison. Members of Morrison's family, including his widow Pamela Courson, believe that Ray Manzarek and Robbie Krieger do not have the right to use The Doors' name and have filed an 11-count trademark-infringement suit.
This isn't the first time that the new Doors, featuring ex-Cult singer Ian Astbury on lead vocals, have been sued since reuniting last year. First, original drummer John Densmore launched a suit alleging that the band were misrepresenting The Doors' legacy. As a result, the band changed their working name to The Doors 21st Century. Soon after, Densmore's replacement, Stewart Copeland decided to sue Densmore and Krieger, after they allegedly pushed him out of The Doors fold.
The new suit names both Manzarek and Krieger, as well as Ian Astbury. Courson's lawyers claim that the new Doors are deliberately misleading the public, who may believe that they're getting an authentic Doors experience. The Morrison estate also takes exception to the recitation of Morrison's poetry on stage at The Doors' gigs.
—Marta Bialecki
MORRISON FAMILY SUES DOORS - Rolling Stone 4-25-03 Legal troubles continue for reconstituted rock legends
The parents of late Doors singer Jim Morrison filed a lawsuit against the members of the current reincarnation of the band in Los Angeles Wednesday. They're alleging that keyboardist Ray Manzarek and guitarist Robbie Krieger -- original Doors currently touring with former Cult singer Ian Astbury under the moniker "Doors 21st Century" -- have misappropriated the band's name and logo as well as Morrison's poetry and photos. The suit claims the members of 21st Century Doors are engaged in a "deliberate scheme" to confuse the public and "wrongfully enrich themselves." The Morrisons, joined on the lawsuit by the estate of Jim's late common-law wife Pamela, are seeking unspecified damages. The two families are co-owners of Morrison's twenty-five percent stake in the corporations that run the bands' ongoing business. Kreiger, Manzarek and original drummer John Densmore together own the remaining three-quarters.
Densmore has declined to join Manzarek and Kreiger's ressurection, and in February he sued their new band to force them to change their name. And in March, former Police drummer Stewart Copeland, who had played in early versions of the Doors 21st Century, also sued Manzarek and Kreiger for breach of contract when they declined to use him for the band's current tour and upcoming album.
AUGUSTIN SEDGEWICK
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:07:47 GMT
Nigel Williamson was one of the 'expert' witnesses called in court.
Rock and Pop. Times On Line. July 03, 2004
Identity crisis AND THE BRAND PLAYED ON
Can any rock group minus Jim Morrison truly be called the Doors? Nigel Williamson will give his answer in court
When Jim Morrison died of a heart attack in his bath tub in Paris in 1971, at the age of 27, one might have reasonably assumed that would have been the end of the Doors. But no. On July 12 I shall be standing in a Los Angeles court room giving evidence in a multimillion-dollar lawsuit as surviving members of the band contest the right to continue using the Doors' name with someone else playing the role of the late, leather-clad singer.
Apparently, in the eyes of the American legal system, my scribblings on popular music in this newspaper have qualified me as an "expert witness" and I have been called upon to argue that without Morrison, there can be no group called the Doors, any more than you could have the Rolling Stones without Mick Jagger.
That is also the position taken by the band's former drummer,John Densmore, and Jim Morrison's estate. In the rival corner are the original members Ray Manzarek and Robby Krieger, who last year re-formed something purporting to be the Doors with Ian Astbury from the goth-metal act the Cult as the "Jimitator" and singing all the band's classic songs, from Light My Fire to Riders on the Storm.
The potential sums of money involved are enormous. "What do I want another $10 million for?" asked Densmore, who refused to be involved and initiated the action to stop them. "The integrity of the Doors legacy is worth more than that."
No one doubts that the dense, instrumental textures created by Krieger's giutar and Manzarek's organ were essential to the potency of the Doors' sound. But the group's inspiration and unique sense of drama came from Morrison. With his fallen choirboy looks, leather pants, poetic lyrics and apocalyptic visions, he created a dynamic tension between the sexual and the cerebral that was quite unlike anything else in rock music at the time. He was a one-off, an iconic, rock'n'roll shaman with an unfortunate appetite for self-destruction that ensured him an elevated position in the pantheon of dead greats alongside such other live-fast-die-young rock gods as Jimi Hendrix and Janis Joplin.
Walking in such an icon's shoes is an unenviable task, as Val Kilmer discovered when he played Morrison in Oliver Stone's unconvincing film 13 years ago. But that never pretended to be anything more than a celluloid representation. Seeking to relight the fire of former glories by bringing on a substitute who was just nine years old when Morrison died is a far more dubious enterprise. After Densmore's objections, the group now calls itself "The Doors of the 21st Century". Yet the new name seems only to mock our memories further, for if ever there was a band whose songs, attitude and significance belonged to the latter half of the 20th century it was the Doors.
Modern rock music is awash with nostalgia for the golden age of the 1960s and today there is a huge market for tribute bands. Nothing wrong with that, and such blatant mimicry clearly fulfils a need. Groups such as the Bootleg Beatles and the Counterfeit Stones make a decent living by looking and sounding like someone else. There's even a tribute band called the Doors of Perception. But they don't try to pretend that they are anything other than a karaoke copycat version.
After Morrison's death, Krieger, Manzarek and Densmore made little attempt to replace their formidable frontman and made a couple of albums as a trio without him. The records sucked, nobody bought them and so they did the decent thing. They accepted that without Morrison there was no Doors and they broke up. Now two of them have changed their mind. But the reality is that the new version of the Doors is nothing more than another tribute band — which just happens to include a couple of the original members, paying tribute to their own long-lost youth. It's all rather sad, really. But highly lucrative. And therein lies the point.
So who might next be recalled from beyond the grave? Paul and Ringo could re-form the Beatles, with Julian Lennon playing his dad and Jeff Lynne filling the shoes of his old mate George. The Clash could get back together and recruit the singer from the Strokes to act out Joe Strummer's guerrilla rock fantasy.
The unseemly row over the Doors legacy rather makes you respect those who have resisted telephone number deals to rehash their past triumphs. Roger Waters has been offered millions to get back with his old colleagues in Pink Floyd but has adamantly refused. Robert Plant has similarly turned down pots of gold to reform Led Zeppelin. When he couldn't be persuaded, Jimmy Page went out on the road playing all the old Zep favourites with the Black Crowes instead. But he had the dignity not to call it Led Zeppelin II.
A few years ago, Elvis Presley's old backing group got together to tour again. Behind them was a huge screen showing one of Presley's Las Vegas concerts. The real Elvis sang on film and the band played along live on stage. There was even one wonderful cameo during Guitar Man when the on-screen Presley turned to his lead guitarist and said: "Play it, James." And there was the flesh-and-blood James Burton, 30 years older and somewhat greyer, but still playing his socks off at the King's command.
Somehow the suspension of disbelief in that single moment was more convincing than anything the army of Elvis imitators ever conjured up. It's called charisma, and it's a quality that cannot be reproduced. It doesn't matter how good Ian Astbury is, he isn't Jim Morrison and so the band he's singing with can never be the Doors.
These news articles are interesting mainly in the fact that they are in error as the Judge did not agree with Manzarek/Krieger that they could continue performing under the name Doors 21st century nor did he agree that that name was sufficiently different to allow them to continue using it. #see transcripts of court documents! Many news reports from this period claimed this but the events that followed showed this to not be correct at all.
Judge Says 'The Doors 21st Century' Can Rock On Band's Original Drummer Suing Two Other Members
NBC4 News POSTED: 3:29 p.m. PDT May 12, 2003
LOS ANGELES -- A judge on Monday declined to grant a request by The Doors' original drummer, John Densmore, to bar two other original members from using the band's name on a current tour.
Densmore sued keyboardist Ray Manzarek and guitarist Robby Krieger in February for breach of contract because the two -- along with singer Ian Astbury of The Cult -- were touring using the name "The Doors 21st Century."
Los Angeles Superior Court Judge Gregory W. Alarcon heard arguments but gave no indication when he would make a final ruling on the request for a temporary restraining order.
Following Jim Morrison's death of a drug overdose in 1971, the three remaining members of the iconic '60s rock group signed off on a deal preventing any of them from using the name "The Doors" to tour or record unless all three were involved, according to Densmore's suit.
Densmore's attorney, S. Jerome Mandel, said the qualifiers "21st Century," were of no use since "they don't appear anywhere" in advertising for the tour of Manzarek and Krieger.
"I couldn't open a business called Coca-Cola of the 21st Century," Mandel argued as Densmore looked on from the front row of the downtown Los Angeles courtroom.
Mandel said Densmore doesn't want to stop the concerts, but said there's no evidence the defendants will suffer damages if the name of the tour is changed -- he said Densmore wants it to read something like Ray Manzarek and Robby Krieger, formerly of The Doors.
"These concerts are already sold out," Mandel said. "There is no evidence that if the name is changed, concerts will be canceled," the attorney said.
"We fear that they will go out there and run amok, and every one of these ads will say `The Doors,"' Mandel said. "What is my client supposed to do, get a newspaper clipping service so we can watch these guys?
"The (1971) contract is very clear. It was intended to prevent the very damage that ensued with these concerts," Mandel said.
But John H. Lavely, representing Manzarek and Krieger, said an injunction at this stage would do irreparable harm.
"Concerts will be canceled, reputations will be hurt, jobs will be lost," Lavely said, estimating that a name change would cost his clients $3 million.
The tour has been successful in so-called mid-range venues like New York's Roseland Ballroom, which has a capacity of about 3,000.
Lavely said ads promoting the concerts clearly identify who's performing and who's not.
He also argued that the tour is stimulating radio play for The Doors, which is sparking renewed interest and record sales, which benefits his clients as well as Densmore.
And Lavely added that the 1971 contract stipulates good faith, and that if a majority wanted to do something, a minority would be required to go along.
Lavely cited several legal disputes among music groups -- John Fogerty and Creedence Clearwater Revival, Journey, Styx, Van Halen -- where courts ruled groups could continue on when changes occur.
The tour, which began in March and is scheduled to pick up again next week in Tampa, Fla., has sparked two other lawsuits, most recently when Morrison's octogenarian parents filed their own trademark infringement suit for monetary damages against Manzarek and Krieger.
Also, former Police drummer Stewart Copeland, originally chosen to replace Densmore, sued Manzarek and Krieger in March for breach of fiduciary duty for allegedly not paying him for a few gigs.
From MUSIC INDUSTRY NEWS NETWORK May 20, 2003
THE DOORS 21ST CENTURY have prevailed in a court ruling that denied a preliminary injunction filed by their original drummer John Densmore, who had asked for a restraining order against the group from using the name, songs and logo without his consent. In an order dated May 13, 2003, Los Angeles Superior Court Judge Gregory W. Alarcon denied a motion for a preliminary injunction sought by Densmore, who filed suit against his bandmates in February (Densmore v. Manzarek, et al., Case No. BC289730).
Founding members RAY MANZAREK (keyboards) and ROBBY KRIEGER (guitar)had reunited along with singer IAN ASTBURY and were set to embark on a national tour when original drummer John Densmore filed a restraining order against his former bandmates, although he had been invited to tour with them. The court refused that order, and his subsequent injunction was denied. The tour has gone on as scheduled, selling out venues across the country.
While Densmore argued that the new tour would harm the band's legacy, the Court said that "the majority of the reviews of such performances have been favorable in a way which actually may add to the prestige of the original The Doors rather than detract from it." The Court also noted that Densmore had failed to prove that consumers were likely to be confused as who was in the band and that Densmore had waited too long to bring his motion.
"We're happy justice prevailed," says MANZAREK. "We feel the judge made a wise and astute decision. And as we have from the beginning, our invitation for John Densmore to play with the band still stands."
Yahoo NEWS - Original Doors Drummer Loses Injunction Request 05/16/2003
(5/16/03, 5 p.m. ET) -- John Densmore's bid to keep his former Doors bandmates off the road this year has suffered a setback. A judge has denied the drummer's request for a temporary restraining order that would have kept Ray Manzarek and Robby Krieger from using the group's name on their tour, which resumes May 22 in Tampa, Florida. The rest of Densmore's suit will proceed, but Manzarek and Krieger can still use the new band name the Doors 21st Century to promote the group.
In a statement, Manzarek said, "We're happy justice prevailed. We feel the judge made a wise and astute decision. And as we have from the beginning, our invitation for John Densmore to play with the band still stands."
In denying Densmore's request for a temporary injunction, Los Angeles Superior Court Judge Gregory W. Alarcon agreed with Manzarek and Krieger's attorney that forcing the group to adopt a different name could damage the existing concerts. Alarcon also ruled that the "21st Century" tag was sufficient to differentiate the group from the original Doors.
The judge further noted that the public is well aware of original singer Jim Morrison's death, so fans won't think Morrison will be at the shows.
Densmore is suing Manzarek and Krieger for breach of contract,claiming they launched the Doors 21st Century project without his consent. He's also looking for a share of the revenues from any touring and recording the group might do, based on an agreement to split any future profits from the Doors' music three ways following the 1971 death of Jim Morrison.
Manzarek and Krieger claim they invited Densmore, the band's original drummer, to be part of the Doors 21st Century but he declined due to hearing damage. They started the Doors 21st Century in 2002, with the Cult's Ian Astbury taking Morrison's place and, initially, Police drummer Stewart Copeland filling in for Densmore.
Copeland has since filed a $1 million suit against Manzarek and Krieger, after they dropped him from the band earlier this year following an injury he suffered last fall.
Morrison's parents and in-laws are also suing Manzarek and Krieger, claiming copyright infringement.
The Doors 21st Century have dates scheduled into the fall. In addition to the Doors' hits, Manzarek said the group will be performing some new material it's started writing and recording in Los Angeles.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:08:40 GMT
Stewart Copeland settled his argument with Manzarek/Krieger by the beginning of June 2003 Case Summary Case Number: BC291738 KINETIC KOLLECTIONS OVERSEAS INC ET AL VS RAY MANZAREK ET AL Filing Date: 03/07/2003 Case Type: Othr Breach Contr/Warr-not Fraud (General Jurisdiction) Status: Dismissed - Other 06/04/2003 Future Hearings: None Parties: COPELAND STEWART - Plaintiff/Petitioner DOORS TOURING INC. - Defendant/Respondent GRADSTEIN HENRY ESQ. - Attorney for Plaintiff/Petitioner KINETIC KOLLECTIONS OVERSEAS INC. - Plaintiff/Petitioner KRIEGER ROBBY - Defendant/Respondent LAVELY JOHN H. JR. LAW OFFICES OF - Attorney for Defendant/Respondent MANZAREK RAY - Defendant/Respondent Documents Filed: 06/04/2003 Request and Entry of Dismissal (COMPLAINT W/ PREJ ) Filed by Attorney for Plaintiff/Petitioner 04/10/2003 Answer to Unverified Complaint Filed by Attorney for Defendant/Respondent 04/10/2003 Answer Filed by Attorney for Defendant/Respondent 03/28/2003 Notice (of cmc ) Filed by Attorney for Plaintiff/Petitioner 03/19/2003 Notice-Case Management Conference Filed by Clerk 03/11/2003 Summons Filed Filed by Attorney for Plaintiff/Petitioner 03/07/2003 Complaint Proceedings Held: Proceedings Held (Proceeding dates listed in descending order) None www.lasuperiorcourt.org/civilCaseSu...?CaseType=CivilNOTE: This case was settled outside of court for an un-disclosed amount of money. YAHOO NEWS - The Doors And Stewart Copeland Settle Lawsuit (6/4/03, 7 a.m. ET) -- Stewart Copeland and the Doors 21st Century have "amicably" settled the lawsuit Copeland filed against the group,according to an announcement from the group's publicist on Tuesday (June 3). Police drummer Copeland, who played with the reconfigured Doors in 2002, filed the $1 million-plus breach of contract suit on March 7 in Los Angeles after the group replaced him with Ty Dennis earlier this year. Dennis was initially thought to be a temporary replacement while Copeland's elbow healed from a mountain biking injury, but the group made the move permanent. Terms of the out-of-court agreement were not revealed. Doors keyboardist Ray Manzarek said the personnel change didn't have anything to do with Copeland's injury. "Stewart lacked the mystery," Manzarek said. "He's not a mysterious, mystical drummer who's willing to just be the support to the melodic flights of [guitarist Robbie] Krieger and Manzarek. I mean, we want to float over the top of a good, solid, mystical, mysterious rhythm, and Stewart is very, very busy, and just can't relax into the pocket." Manzarek added that he and Krieger were surprised that Copeland sued them. "It was like, 'Listen, man, you're a great guy, but this is just not working out, so thanks a lot, and let's part friends.' And he said, 'OK,' and then a week later, 'I'm suing you.' 'Oh. (chuckles) All right. Well, let's not part friends, then.'" Doors, Copeland Settle By: ANDREW DANSBY Rolling Stone Magazine On-Line (June 3, 2003) Manzarek and Krieger open to working with drummer again Stewart Copeland and the Doors 21st Century have settled the drummer's $1 million breach of contract suit against the band.Copeland sat in with the band for a handful of shows last year, subbing in for original Doors drummer John Densmore, who has his own legal dispute with the group. Copeland injured his arm late last year, forcing the cancellation of a show. He aggravated the injury in January and the remaining Doors --keyboardist Ray Manzarek and guitarist Robbie Krieger -- tapped Ty Dennis to replace him. Copeland filed the suit in March, claiming that the band was guilty of "exploiting [his] credibility, talent and reputation." Read the suit, "Once the success of the Doors 21st Century was assured, defendants breached the oral contract. They purported to hire a replacement drummer, keeping plaintiff's twenty- percent of the net profits for themselves." The terms of the settlement were not disclosed, but according to a band statement, both parties have left open the possibility for future collaborations. "We're glad we were able to resolve this matter and we wish Stewart all the success in the future," Manzarek said. Densmore's legal battle with the Manzarek and Krieger is unresolved. After a successful VH1 Storytellers reunion last year with his bandmates and a revolving set of singers subbing for the late Jim Morrison, Densmore wasn't keen on reviving the band. In February, just before the band was to begin a series of U.S. tour dates with former Cult singer Ian Astbury singing, Densmore filed a legal action trying to get the band to alter its handle. "The Doors are Jim, John, Ray and Robbie," Densmore told Rolling Stone. "I don't care if they call themselves 'former members of the Doors,' 'the Hinges' or 'theWindows.' I just want clarity. I don't want deception." On May 13th, a California judge denied Densmore's request for a preliminary injunction forcing the band to change its name for its current tour, but Densmore's suit is still active and under review. Ray Manzarek Hopes The Doors Will Again Soon Be The Doors by Paul Cashmere 29 December 2004 Undercover Rock News Website The Doors of the 21st Century may soon be able to call themselves The Doors again before they arrive in Australia for the Melbourne International Music Festival. Founding member Ray Manzarek is hopeful the current court-case actioned by original drummer John Densmore will rule in their favour. "The law suit still has to be decided. Perhaps by the end of January we will hear something from the judge as to what the final disposition of the case is" Manzarek tells Undercover News. For Manzarek, the court case has been a waste of time. "It's been long and ridiculous" he says. "You know what it is, when a rock band stays together long enough someone in the band will lose their mind and sue the other members. That's what happened - Beach Boys, Pink Floyd - somebody has got to sue". Regardless of the name, the live set for the upcoming Melbourne International Music Festival will feature classic Doors. "In my mind we are The Doors, we will play Doors and regardless of the actual name, we will play the same songs like 'Light My Fire', 'Break On Through' and 'When The Music's Over'" Ray says. The Densmore court action has destroyed the friendship with Ray. "It made it one of intense antagonism" he says. The Densmore legal action is just one of the cases The Doors are facing. The other came from former Police drummer Stewart Copeland who for a brief moment was with The Doors and sued after discovering he was out of the band when he read about it in a magazine article. "Stylistically it didn't work out. There is a certain style that works for Doors songs and music and it did not mesh. That was a lawsuit too. If Ty (Dennis) ever leaves hopefully he won't sue. I'm getting sued by drummers". Doors Alumni Hope To Return To Original Band Name In 2005 Lucky98 fm The Doors Of The 21st Century are hoping to shorten their name in the near future. The group -- which features original Doors members Ray Manzarek and Robbie Krieger with the Cult's Ian Astbury in place of the late Jim Morrison -- is currently in court with original drummer John Densmore, who's suing to prevent them from using the Doors name at all. Densmore has already lost one bid for a restraining order to keep his former bandmates from touring as the Doors Of The 21st Century. Manzarek told that if he and Krieger emerge triumphant, they feel they're entitled to using just the Doors moniker again: "We are the Doors. You're watching two guys who were in the band. The keyboard player and the guitar player are the original members of the Doors. That's the actual guys, man. There's the sound of the Doors right in front of you. That's the keyboard player who plays 'Light My Fire.' That's the guitar player who wrote 'Light My Fire.' So it's a continuation." The Doors -- Of The 21st Century or otherwise -- are planning to record a new studio album in 2005. The Doors Of The 21st Century are offering a limited edition live CD from their 2003 New Year's Eve show in Los Angeles at disclive.com. The group kicks off a four-show swing through Australia on February 19th in Perth. RIDING OUT THE STORM - Australian News - Feb 2005 Ian Shedden 05 feb 2005 'JIM lived on the edge for all of us." He was good like that. The homage to Jim Morrison, from an old documentary on his band the Doors, comes from the Californian group's keyboards player Ray Manzarek and has stuck with this writer since the program first screened more than 20 years ago. The implication was, it seemed, that Morrison's edginess stood him up there with Jesus as one of the all-time good guys. The pomposity of this observation cuts straight to the heart of the myth and magic of the Doors. On opposing sides of popular opinion, they were God's gift to rock music in the late 1960s and early '70s - or a quartet of clever-dick musos led by a good-looking frontman with more than a few designs on himself as the poet laureate of rock'n'roll. Like all rock tales other than This Is Spinal Tap, the truth lies somewhere between the sublime and the ridiculous. Certainly, Manzarek had a point about living on the edge. Morrison was out there. The Lizard King, as he became known, liked William Blake, alcohol, Elvis Presley, Alfred Hitchcock, LSD, alcohol, women and alcohol. He made leather pants the essential trouser for would- be rock gods ever after and got into trouble once for removing his willie from said pants during a Doors performance. Sadly, the Doors never reached their full potential. Morrison, on a mission of self-destruction favoured by many a creative genius before him, got too close to the precipice. In 1971, just five years and six albums into their reign, the singer's longstanding romance with the bottle ended in tragedy. On bail and appealing a jail sentence over the willie imbroglio in Florida, Morrison moved to Paris, where he became ensconced in writing and booze. Three months later he died, in his bath, of heart failure. Like Jimi Hendrix and Janis Joplin, two other rock casualties of the era, Morrison was dead at 27. The Doors carried on for a couple of years, but without the charisma of Morrison at their helm, the magic was gone. Wind on 34 years and the story of the Doors, which has had precious few developments for most of that time, has a new twist. In fact it has several twists, all of which have returned the group, or at least what is left of it, to the media spotlight. Amid the new-found and rekindled glory, some grubby developments have been caught in the glare. First, there is the new incarnation of the band, which is called - for reasons that we'll get to shortly - the Doors of the 21st Century. This line-up, which includes Manzarek and original guitarist Robbie Krieger, has Ian Astbury, former singer with English goth-rock outfit the Cult, out in front. He plays the role, by recent reports, with just the right amount of respect for his predecessor and for his own abilities as an entertainer. This version of the band (with Ty Dennis on drums and bassist Angelo Barbera) opens its first Australian tour in Perth on February 19. Running alongside this dramatic return to the stage, which began in the US a couple of years ago, is a soap opera being played out in the courts, centred on who has rights to exploit the band name the Doors (hence "of the 21st Century") and on who can profit financially from any enterprise using the term "The Doors". On one side of this typically American scenario are Manzarek and Krieger, who claim that they are only doing what comes naturally -and, anyway, why shouldn't they exploit the band with which they became famous all those years ago? On the other side we have John Densmore, the band's original drummer, who slapped a lawsuit on his former colleagues in February 2003 claiming breach of contract, trademark infringement and unfair competition over their decision to re-form using Astbury. Densmore went so far as to suggest they call themselves the Hinges or the Windows rather than the Doors. Two months later he was joined in legal proceedings by the executors of Morrison's estate, namely his parents, George and Clara Morrison and the parents of his partner Pamela Courson (who died in 1974). The two families share a 25 per cent stake in the Doors and claim that the other surviving members - excluding Densmore - have "maliciously misappropriated" the name and logo of the Doors and are using Morrison's poetry and photos without permission. Adding to Manzarek and Krieger's 21st-century woes, ex-Police drummer Stewart Copeland also sued them, claiming damages after he was employed – but subsequently ditched - as Densmore's replacement. The matter was resolved amicably in June 2003. As we went to press, a ruling on the remaining lawsuits was imminent. "Then we will find out what we can do and can't do according to the strange contracts that were signed by a bunch of kids [more than] 30 years ago," says Manzarek. Los Angeles Times QUICK TAKES July 26, 2005 Geoff Boucher Court Enjoins Doors Offshoot Members of the late Jim Morrison's family and the drummer for the band the Doors have a message for two other former bandmates who have toured under the name "Doors of the 21st Century": This is the end. Speaking out Monday, drummer John Densmore, a founding member of the Los Angeles band of the 1960s and early 1970s, praised a court injunction issued last week that blocks the neo-Doors collective from moving forward with its sound-alike name. What we have now is a pretty overwhelming victory for the fans of our music," Densmore said of the injunction issued by Los Angeles Superior Court Judge Gregory W. Alarcon. Alarcon's ruling also states that profits already made by the new venture will be subject to preexisting partnership deals set decades ago by the Doors' surviving members: Densmore, keyboardist Ray Manzarek and guitarist Robby Krieger. Krieger and Manzarek are scheduled to perform tonight in Saskatchewan, Canada, but neither musician nor their manager could be reached Monday to find out what the marquee will say. The band has three more Canadian dates before its scheduled tour finale at the Trump Taj Mahal in Atlantic City, N.J., on Aug. 5. They have been touring with former Cult singer Ian Astbury taking the microphone duties once held by Morrison. Morrison's parents and other relatives had joined Densmore in the action against Manzarek and company. Jeffrey Forer, attorney for the Morrisons, said in a statement Monday: "Manzarek and Krieger had no right to use Jim's name, likeness, voice and image for their own personal gain.... The Morrisons feel vindicated."
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:09:36 GMT
This was the first of a series of articles Darkstar did for the Doors Collectors Magazine on the subject back circa 2003/04. Note that these more informed opinions were in the minority back then (as they are today on the subject) as pretty much all of the information between 2003 and 2005 was suppressed at the time on the Official Doors forum which did not allow discussion other than wild rumours about Densmore demanding 'X' million dollars to settle the spat and ill informed interpretations of the actual trial result. The Battle For A Name : Just The Facts. Compiled by Sara Perry Doors Collectors Magazine Doors fans of all ages have taken notice of the pending lawsuit filed by John Densmore against the use of 'The Doors' name. Every fan has the right to an opinion and it is not my intention to discredit anyone but, to ask for your help in determining the final outcome of this case. For those of you that keep up with Doors news I'm sure you have seen the debates between John Densmore and Ray Manzarek published in news and magazine articles over the years. It is unfortunate that the current disagreements have landed in Los Angeles Civil Court with a hearing date set for April 21, 2003. The forthcoming verdict will be decided by the facts and evidence presented in the case. Using the public information that I have gathered for you below, how would you rule this case? The next link is from the Los Angeles Superior Court including the actual case summary. Additional information regarding Civil court procedures in the state of California can be found at the Los Angeles Superior Court website. The case summary is updated to reflect additional filings and will eventually include a verdict. To review the case summary or to see updated information as it is filed with the court, please go to: www.lasuperiorcourt.org/civilCaseSummaryYou will have to insert the case number BC289730 to gain access to the case summary. John Densmore, in a complaint in Los Angeles Superior Court, claimed that the Doors' original partnership agreement and a 1971 agreement made after the death of lead singer Jim Morrison called for unanimity on partnership decisions and did not allow individual band members to use the group name. Despite this, according to the suit, original Doors members Ray Manzarek and Robby Krieger have teamed with Ian Astbury and Stewart Copeland to perform as The Doors. After Densmore objected, Manzarek and Krieger said they would indicate only that they were former members of the band, the suit said. Instead, they have used the name and were introduced as The Doors by Jay Leno on The Tonight Show. The suit claimed the estates of Morrison and his late wife, Pam Courson, also object to the use of the name. The complaint seeks an injunction against the use of the band name and logo and unspecified damages. Entertainment Law Digest (2-19-03) www.enlawdigest.com/story.cfm?storyID=2557 What follows is a list of various quotes from newspapers and magazine articles found on the Internet (in date order) with regards to what the plaintiff and defendants have said in the media. Each quote is followed by a link to the source where the quote was found. Since I have filtered the articles for pertinent quotes a link to the source is provided so you can review the articles in their full written form. Defendant: Following last fall's release of the tribute album Stoned Immaculate: The Music Of The Doors and an episode of Storytellers, there was talk that the three surviving members of the Doors-guitarist Robby Krieger, keyboardist Ray Manzarek, and drummer John Densmore-might reunite for a series of live shows, possibly with some of the all-star contributors to Stoned Immaculate. Krieger tells Launch that such a project is still possible, but says personal relationships between his two bandmates have so far hampered such an outing. "You know, the main problem is John and Ray haven't been getting along too well since Ray's book came out," Krieger says. "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." Source: News-Robby Krieger Says Feud Hampering Doors Reunion - Launch (4-27-01) launch.yahoo.com/read/news.asp?contentID=193279 Defendant: "No, John Densmore can't play," says Manzarek. Say again? "John Densmore can't play. His ears have gone bad. He has tinnitus. He can't play rock 'n' roll. The cymbals are too loud." ...Here's the way they are billing it, per Manzarek: "It's the Doors for the 21st Century. Or, as we like to say, the Doors have retooled for the 21st century." So there you have it -- the Doors, refined and retooled for the... "No, not refined. Re-tooled for the 21st century. So put that in the article. "Doors Retool for the 21st Century." Uh, all right then. Doors. Re. Tool. But the question you're asking -- and it's a fine question -- is, well, why? "The stars were in proper alignment for the Doors to get back together again," says Manzarek, doing his level best to fritter away any and all respect he earned as possibly his old band's biggest talent and the producer of X's best work. "We've entered the 21st century and the new age is approaching, and we badly need a glimpse of the new age." Um... "Just put it down like that -- you know, the new age is approaching and we need a glimpse of the new age very badly in this age of darkness and war and destruction of the environment." All right, let's rephrase the question. Exactly how many Doors have to be absent before they become a Doors tribute band, albeit a really convincing Doors tribute band? "The Doors are not a Doors tribute band," says Manzarek. "If you want to see a Jim Morrison imitation, go see Wild Child. If you want to see the Doors, the new Doors" -- say it with him -- "retooled for the 21st century, come and see the Doors. Ian Astbury is singing Doors songs as Ian Astbury. He's not doing a Jim Morrison imitation. He is Ian Astbury, with all the power that he has." But why Astbury, if not because he can do a hell of a Jim Morrison? "Ian is a greater singer, has a shamanistic quality to him, has Buddhist sensibilities, and is an advocate of Native American rights." So... "So he shares the same sensibilities as Jim Morrison." Uh, right. But he's not Jim Morrison. And without Jim (and, oh yeah, John, uh, Densmore), it's not really the Doors, is it? I mean, the only place they're going to hold a real Doors reunion is at Pere-Lachaise, right? "Well, that's fine, then don't come," says Manzarek. "All I can say is don't come. If you don't want to hear us play 'Light My Fire.' 'Riders On The Storm.' and 'Roadhouse Blues.' Don't come!" Hey, he said it not me. Source: House Of Blues (Jim Ladd's Living Room), Hollywood, California (9-03-02) www.cultcentral.com/Tours02s/020903.html Defendant: Manzarek tells Launch, "Here's the new Doors lineup. This is the permanent new Doors lineup: Ray Manzarek on keyboards, Robby Krieger on guitar, Stewart Copeland of the Police on drums, and Ian Astbury of the Cult on lead vocals. That's the permanent line-up." Source: News-Manzarek Says Copeland & Astbury Are Permanent Members Of The Doors - Launch (9-12-02) launch.yahoo.com/read/news.asp?contentID=210428 Defendant: "The tragedy and loss of Jim Morrison weighs heavily on all of us," Manzarek said at the time, "but this ain't no tribute band." Source: Doors Re-Light Fire - Rolling Stone - (9-13-02) www.rollingstone.com/news/newsarticle.asp?nid=16653 Defendant: Manzarek told Launch that things are looking grim for Densmore, in terms of his future as a musician: "Tinnitus, man, you can't... You know, there's nothing you can do about it. It doesn't get better. It can only get worse--that's the hell of that thing. You'd say, 'Well, you know, when it's better, you're gonna play, man.' Well, it doesn't get better. The nature of that problem is that it can only get worse." Source: News-Doors Drummer Sidelined By Hearing Disorder - Launch (9-17-02) launch.yahoo.com/read/news.asp?contentID=210479 Defendant: "Jim Morrison would be very happy with this regrouping of The Doors," keyboardist Ray Manzarek told the Associated Press. "Because these are Jim Morrison's words, and Jim Morrison's words are alive and being sung to an audience one more time. And he was a poet, and a poet wants to be known for his words." ... Manzarek also contends that Ian is not trying to imitate Morrison in any way, shape or form. "Ian is not doing Jim Morrison. Ian is doing Ian Astbury," Manzarek said. "For some strange gathering together of the fates, Ian has been put into our laps." Source: The Doors Slam Shut On Critics - Arrow93 Grapevine (2-04-03) www.arrowfm.com/grapevine/stories/02-04doors.shtml Plaintiff: According to Densmore, he contacted Krieger and asked him to change the name, and though the guitarist agreed, the band only tweaked its handle. "I've had to give them a wakeup call," Densmore says. "I'm not after money. I could have had an injunction and stopped the concert. The (Morrison) estate and I could have said give us half the money. The claim is written lightly. I didn't write injunction. If they don't make it real clear, I don't know, then we'll get heavier." ... The band continued to play as the Doors, even recently appearing on The Tonight Show, introduced by Jay Leno as "the Doors." The band did recently tweak the name to "Doors for the 21st Century," but Densmore says his former mates are using the iconic font from the first album, and that the "for the 21st Century" tends to be undetectable in any promotional materials... Despite Morrison's charismatic role as frontman, the band was hatched with each member holding an equal share, a system that continued after his death, with estate (and that of his wife Pamela Courson) filling one-fourth of the business. "It's all completely four parts, equal," Densmore says. "It's a sweet little democracy that Jim orchestrated with no lawyers, in a garage in Venice, California. And he included veto power in case anybody didn't like what went down. I'm just trying to keep the integrity of what we did a long time ago." Another point of contention is that Densmore has been playing with a new jazz ensemble, Tribal Jazz, and feels his reputation as a drummer has been undermined by an implied expendability due to the Doors touring without him. "The performances and advertising by the defendants as the Doors has resulted in substantial confusion to fans," read the complaint filed by his attorney, Jerome Mandel. "That there has been a drummer playing with that band who is not John Densmore has minimized and diminished the reputation and stature of Densmore by causing people to believe that he was not, and is not, an integral and respected part of the Doors." Source: Densmore Tries To Close Doors - Rolling Stone - (2-04-03) www.rollingstone.com/news/newsartic...7490&cf=643 Defendant: "I'm not trying to be Jim Morrison," said Astbury, who saw worldwide success with the 80's British hard rock band the Cult. "I'm approaching this like a recital of classic material. I've been mesmerized by the music ever since I saw 'Apocalypse Now' (in which the Doors' Oedipal odyssey 'The End' was used prominently). It's the level of musicianship and Jim's great weight of character. This level of playing doesn't exist very often today." Manzarek said the idea was not to find a Morrison tribute singer but a performer who could bring his own strengths to the shamanistic role played by Val Kilmer in Oliver Stone's 1991 film "The Doors." For the record Manzarek and Krieger hated the film, loved Kilmer. "Ian and Jim come from the same mystical place and I think that's what makes Ian Morrison-esque but without imitating him," Manzarek said. "We'll never replace Jim. But we're playing rock 'n' roll for rock fans and what we're trying to do is capture that moment of intensity on stage and project it out to the audience." ... "I think Jim would be happy we're playing as the Doors again," Krieger said. "We've waited a long time and the only thing that matters now is how well we all play together." Source: Mojo Rising - San Bernardino County Sun (2-04-03) u.sbsun.com/Stories/0,1413,216%257E...l?search=filter Defendant: "He's (Densmore) got to do what he feels he's got to do," said Manzarek. "He was asked to play. Robby, Tom (Vitorino, the band's manager), Ian and I -- we all asked John to play. He refused every time." Manzarek said he still hoped Densmore would change his mind. "We want John to come and play with us any time he feels like it," said Manzarek. "Come on John join us and play." ... Manzarek said no one expects the new lineup to pass for The Doors, or for Astbury to pass for Morrison, who died at 27 in 1971. "I don't think anyone out there is going to be confused that maybe Jim Morrison will appear," he said. "I think Jim would be the first one to say, 'Go do it. Sing my words. Let people hear it the way we used to do it in a live situation.'" ... Manzarek said the spirit of the band is alive and well. "It's interesting that The Doors reconvened as we are about to go to war," he said. "The '60s changed everything, yet here we are still fighting that battle. We're here to help." Source: When are The Doors not The Doors? UPI (2-05-03) www.upi.com/view.cfm?storyID=20030205-020059-5210r Plaintiff: Densmore told Launch by phone that calling the group "The Doors" misleads fans and that he is seeking to protect the legacy and the integrity of the body of work created by all four original members. The drummer also said that he has received telephone calls from fans and friends regarding the tour, asking for tickets, believing he was taking part in a reunion. Densmore made it clear he's not trying to keep the other musicians from making music. "And I don't begrudge them to play or people wanting to hear them play," Densmore said. "But it's, the Doors were John, Jim, Robby and Ray, ... You know? They can say 'formerly members of the Doors,' you know, but Ray, Robby, Ian, Stewart, and Fred [Doe] is not...the Doors." The complaint states: "The performances and advertising by the defendants as 'the Doors' has resulted in substantial confusion to fans. That the defendants have held themselves out as the Doors, and that there has been a drummer playing with that band who is not (Densmore) has minimized and diminished the reputation and stature of (Densmore) by causing people to believe that he was not, and is not, an integral and respected part of the Doors band, or is one member who easily can be replaced by another." Defendant: Management for Manzarek, Krieger, Astbury and Copeland as the Doors issued a response, which said, "We had no knowledge of this situation, and have no comment at this time." Source: Doors Drummer Densmore Files Injunction To Stop Use Of Band Name - Launch (2-05-03) launch.yahoo.com/read/news.asp?contentID=212145 Plaintiff: "I'm sad and hurt that my former bandmates are misusing the logo and the name, confusing people." ... He wants them to bill themselves as "former members of the Doors. It could be Windows, the Hinges, I don't care what it is." ... The suit also names Astbury and Copeland, whom (he) says he loves as musicians, "but it's not the Doors. That's my point here... It shouldn't be called the Doors if there's someone other than Jim singing, y know?" Defendant: Suit is "frivolous." Source: Doors Drummer Sues - News24 BackPage (2-05-03) www.news24.com/News24/Backpage/HotG...1316206,00.html Defendant: Manzarek explained why Densmore hadn't taken part in last year's shows and wasn't a part of this year's new Doors concert tour. "Unfortunately, John Densmore's got tinnitus in his ears and wasn't able to play because of ringing in his ears and his ear problems, so we called Stewart Copeland from the Police and Stewart said, 'love to do it.'" Plaintiff: "Old news," Densmore said. "I had a problem with my ears a couple of years ago on this VH1 Show, and last summer they did this Harley Davidson concert and I said, 'My ears aren't quite healed, but the main thing here is I'm uncomfortable with one guy filling Jim's leather pants." Densmore added that he was shocked to learn of this years full-scale Doors tour. "Whether I could play or not, they go on," Densmore said. "They played this Harley Davidson gig that I couldn't play and then, I read--I didn't get a phone call--in Billboard music industry magazine that the new guys are playing from here on out. Wow, OK, I'm publicly fired, or something here. So fine. Then I got on the phone, 'change the name, change the name,' you know?" Source: Densmore Slams New Doors, Says Hearing Problem Is 'Old News' - Launch (2-06-03) launch.yahoo.com/read/news.asp?contentID=212156 Defendant: "It is The Doors for the 21st century; there's a new millennium here," Krieger said. "And there's a need for good music to be heard. That's why we decided to get this whole thing back together after 30 years." Source: New era swings open for The Doors - Associated Press Ventura County Star (2-06-03) www.insidevc.com/cr/cda/article_pri...1723979,00.html Defendant: In a reaction to the lawsuit Manzarek recently told the publication Variety that the name of the newly formed band had been used with Densmore's blessing: "John has an open invitation," Manzarek said. "Everybody asked him and he said, 'No, my ears (are too damaged).' Then I said, 'Why not play hand percussion?' and John said, 'No way. I'm not a sideman.' Instead he then chose to sue us. He gave Robby his blessing (to use the name)." Manzarek also said that he and Krieger were fully entitled to use the band's name. "This is ridiculous. The guy who put together the band and plays keyboards is performing with the guy who wrote Light My Fire, Love Me Two Times and Love Her Madly.If we're not The Doors, then who is?" Source: Doors Slam On Densmore's Suit - Arrow93 Grapevine (2-14-03) www.arrowfm.com/grapevine/stories/02-14doors.shtml Defendant: "Well I assume we have John's blessings as far," Manzarek told AP. "You know, John's got bad ears and he's got tinnitus and can't play this loud rock 'n' roll stuff and he'd blow his brains out if he tried to, it'd just be too loud for him. So, John has said fine, go ahead." Source: Roadhouse Blues - Entertainment Weekly (2-05-03) www.ew.com/ew/report/0,6115,419491~...reunited,00.htm Defendant: "People say, 'Don't f**k with the magic," Krieger says of the new lineup. "But the gig worked so well that we decided to see if we could keep it together." "The [new] music is different from the Doors, but decidedly Doors-like," Mazarek adds: "We're going in various directions musically." Source: The 21st Century Doors - Venice Magazine (undated) www.venicemag.com/features/doors.htm Defendant: For their part, the Doors released this statement: "Since December 2001, John Densmore has repeatedly been asked to participate in the band. He has declined. We will not discuss the merit of John Densmore's lawsuit - that is better left to the courts. We trust and love our fans and know that they will draw their own conclusions after all of the facts have been presented." Source: New Doors A Unique Entity, Says Stewart Copeland 92.9 KISM Classic Rock Report (undated) www.kism.com/classic_rock_report.asp You can view an event poster for "The Doors 21st Century" at Next Stage at Grand Prairie's website. The poster depicts the Doors logo (slightly changed) with the background of the 1967 Doors' album cover, "Strange Days." This show is scheduled for March 29, 2003. www.nextstage.com/event_detail.asp?id=56 "We're a partnership, artistically and financially. We share equally. In the beginning, a lot of it was to keep the unit together. We have a very different vision of reality, different points to make." - Jim Morrison (1969) Source: The Doors In Their Own Words by Andrew Doe and John Tobler (p.75) The articles listed above are by no means an end to the publicity concerning the current lawsuit as the press will feed off these stories for months to come. Any information that you have would be welcomed and appreciated. For those interested, please give your opinion on how you would rule the outcome of the lawsuit. For or against, it will be interesting to hear what you have to say. This was the second one Darkstar did for DCM in 2005. Updating fans on the case for the first time from actual court documents that had become available. Which are now for the first time on an Official Doors forum revealed in their entirety in the first posts on this thread. Update On Thier Legal Affairs Compiled by Sara Perry July 2005 It’s been awhile since I last updated the legal affairs of The Doors. On June 1, 2005 the Los Angeles Superior Court granted access to some of the documents filed in this case for a fee. What follows is a synopsis of two of those documents. After over two years of trial proceedings, May 9 2005, Judge Gregory W. Alarcon issued a “Proposed Statement Of Decision.” John Densmore’s case and the case filed by the Estate were consolidated on June 28, 2004 therefore the “Proposed Statement Of Decision” contains the proposed rulings on both of these cases and the ruling on the Manzarek and Krieger counter-suit. The “Proposed Statement Of Decision” was filed on May 9 2005 followed by defendants Manzarek and Krieger filing an “Objection Document” on May 24, 2005 opposing the “Proposed Statement Of Decision.”. This matter was granted a hearing on June 16, 2005. Following the Status Hearing the “Proposed Statement Of Decision” was submitted as evident of court documents filed in Case No. BC289730. The 40 page “Proposed Statement Of Decision” contains explanations for each of the plaintiffs and defendants charges giving reason why the court came to render their decisions on these cases. Within these explanations there were quotes from selected individuals who testified in the trial. According to the documents The Doors didn't have a written agreement between themselves from 1966 - 1971 it was an oral agreement up until a retroactive partnership agreement was draw up and executed by all four Doors in 1971. On January 5 1971 The Doors attorney was instructed to draw up a partnership agreement that was to be retroactive back to 1966 and all four Doors signed it. This document was effective from January 1 1966 and was terminated October 1, 1971 of which a new agreement was drawn up that included the three surviving Doors and subsequently the Estate. It is my understanding that the October 1 1971 document stayed in effect, (pursuant to what it says in the Proposed Statement) until April 18 2003 because it had never been terminated. In addition to the retro 1966-1971 Agreement on March 8 1971 all four Doors signed an Administration Agreement "in anticipation of Morrison leaving the United States." This agreement "authorized their business manager Greene an exclusive authority to enter into licensing agreements for music of the Doors. However, to avoid what had happened in 1969 with regard to the Buick incident, Greene was empowered to sign agreements for television and radio commercials ONLY after receiving the written approval of all four partners" (page 11 item #10 of Proposed Statement of Decision). “It is not indicated that Greene ever got permission for any commercial use of The Doors music.” An Amendment to the 1966-1971 Partnership Agreement was made March 11, 1971. The amendment included in Page 11 Item #11 of the “Proposed Statement Of Decision”, "sets forth a specific provision prohibiting the use of the name, The Doors, by any partner upon termination of the partnership for any reason other than the death of a partner. The amendment was prompted by a concern that after L.A. Woman was delivered to Elektra, Morrison might leave the band and form another band in Europe using the name 'The Doors.' Manzarek testified that he signed the one-page amendment when it was prepared but did not read it and did not understand its purpose. Somer testified that he recalled some concern about the band splintering, and that the amendment, as well as all of the band's agreements, were explained to the band members before they signed." The court found Mr. "Somers' testimony to be credible and accepts it as true." The Manzarek and Krieger Cross-Complaint was filed due to Densmore’s lack of agreement for two lucrative business opportunities. Cadillac offered 15 million for the use of Break On Through and Apple Computers offered 4 million dollars for the use of a Doors song not specified. At the time of the offers Krieger and Densmore rejected and Manzarek sought to pair up with the Estates thinking their influence could sway the non-participates into agreeing to the deals. Krieger and Densmore prevailed and the companies were denied usage of The Doors songs for commercial purposes. In addition, Densmore wrote an article in the Nation Magazine which appeared July 8, 2002, subsequently Rolling Stone Magazine republished the article. It was Manzarek and Krieger’s arguement that the Nation article was detrimental and “corporate America” would shun seeking the use of the music of The Doors for commercials.” There was considerable confusion between Densmore and defendants, Manzarek and Krieger as to what the Partnership Agreement(s) set forth in terms and conditions. Densmore claimed that the band decisions were of unanimous vote. If anyone band member vetoed a proposition then the proposition was then denied by all. During the proceedings of this trial and before the judge Manzarek and Krieger testified that they understood the documents to be “majority rule.” Page 36-38 Item #5 of Proposed Statement Of Decision SIXTH CAUSE OF ACTION FOR DECLARATORY RELIEF ”This equitable cause of action was not presented to the jury. Manzarek and Krieger seek a declaration from the Court that 1) the rule of governance among them and Densmore is one of “majority rule” (although it is unclear as to what partnership this declaration is sought), 2) as between them and Densmore, Manzarek and Krieger may not tour and promote themselves as The Doors or The Doors of the 21st Century, 3) said names are not likely to confuse consumers, 4) no partner of a partnership can use his voice arbitrarily to frustrate the purposes of a partnership, “and/or” 5) the partners never had a meeting of the minds as to the provisions of the Old Doors and New Doors partnership agreements. Plaintiffs urge that the rule is one of unanimity. Manzarek and Krieger urge that it is “majority rule.” The conduct of the parties and the testimony of the witness support the conclusion that unanimity is the rule of governance in these partnerships. The “Original Old Doors” 1966 written partnership agreement and the DMC 1969 written partnership agreement each provide that unanimity was the rule while Jim Morrison was alive. This is reconfirmed by the Administration Agreement entered into with Greene. This rule was extended to the 1971 New Doors Partnership agreement after Morrison died. Evidence that the unanimity requirement was the actual practice is found by the Buick incident, and later during the Cadillac proposal through the conduct of Manzarek seeking to change the rule to a “majority rule” as reflected in his voice mail to Stiffelman. The only suggestion to the contrary about “majority rule” comes from the defendants’ post litigation statements, but their position is belied by their own words prior to litigation. On the commentary track of The Doors Collection DVD, Manzarek admits that any member of The Doors had a veto, a statement repeated in the liner notes of his own spoken word compact disc Myth & Reality: “The Doors all had veto power. If one guy didn’t want to do something it wasn’t done. That’s the way it always worked out with The Doors. It was a four way split of all The Doors’ money, totally democratic with veto power.” The court rejects the assertion that this requirement was not known to Manzarek and Krieger or that the written agreements did not accurately reflect their understanding of governance. First, these were college-educated men represented by legal counsel when the written agreements were signed.” As discussed above, as for the written 1971 partnership agreement among Densmore, Manzarek and Krieger, the rule of unanimity was plainly set forth in paragraph 6 of the agreement. This court already has found that the use of the name The Doors of the 21st Century constituted a violation of Business and Profession Code Section 17500. The name 21st Century Doors is not a named used by Manzarek and Krieger, except as a name given to Tommy Gear to prepare the logos later rejected by Manzarek late in 2002.. In any event, had Manzarek and Krieger used that name instead of The Doors of the 21st Century, the decision of the court would be the same. As for the alleged “right to tour” as The Doors or The Doors of the 21st Century, the court has ruled previously through the granting of an injunction that Manzarek and Krieger have no such right. As for the finding that the names are not likely to confuse, the court has already ruled on that issue in the false advertising claim and through the granting of the injunction. The court declines to set forth a declaration whether or not a partner can use his vote in bad faith, arbitrary, without good cause, to frustrate the purposes of the partnership. While correct, this rule of law has no application in this dispute, and this court finds no such evidence of the described conduct to merit such an advisory opinion regarding potential future conduct. As for the final matter that the parties had no meeting of the minds when the Old Doors and New Doors written partnership agreements were entered into, the court finds no competent evidence to support such a conclusion. Manzarek’s argument that neither he nor Krieger read the agreements is unavailing and belied by the testimony of Somer, which the court accepts as true. The court rules in favor of Densmore.” Many more explanations are given within this one document known as the “Proposed Statement Of Decision.” In addition there are many issues of argument contained in the defendants “Objection Document” that are too numerous and drawn out to include in this article. I leave it up to those of you who are interested to pursue reading the documentation that accompanies these cases. It is relevant to understand that while these cases were brought before a jury there were equitable issues that would be decided on by the court. “At the conclusion of the trial, the parties attempted to agree on special jury instructions which would assist the court in subsequently determining the equitable issues. After considering counsel’s arguments and the extended duration of the trial, the court decided a general verdict was appropriate.” (Page 3) On September 27 the jury reached their verdicts awarding NO damages to either of the parties. On May 9, the court submitted the following determinations: (Page 38-40): Section VIII. CURRENT DISPOSITION AND ORDERS OF THE COURT. On the basis if the findings, conclusions and analysis of The Court set forth above .The Court makes the following orders…… 1.With respect to the two complaints of Densmore/estates respectively the Court makes the following orders: a) That defendants Manzarek & Krieger and those acting in concert with them including agents, representatives and employees be permanently enjoined from performing, touring, promoting their band, recording and otherwise holding themselves out as The Doors, The Doors of the 21st century or any other name that includes the words The Doors without written consent of all the partners of Old Doors deemed to be Krieger, Manzarek, Densmore, Morrison’s and Courson’s. B ) All profits earned by Manzarek and Krieger from touring, performing and recording as The Doors or The Doors of the 21st century (including merchandising income) be immediately divested of defendants and turned over to plaintiff Densmore and Old Doors to be disbursed as follows: 1. One third of all profits from January 1st 2003 to April 18th 2003 be delivered to Densmore. 2. All profits (as defined above) after April 18th be turned over to Old Doors partnership. c) That (thirty) 30 days from the date of this Statement Of Decision defendants are to appear and present testimony and evidence demonstrating all profits earned by defendants from and after June 30 2003 and all profits earned by defendants prior to April 18 2003. d) Following the hearing ordered above the Court will issue an additional order reflecting the proper distribution of any additional money that remains to be turned over if any. Manzarek and Krieger shall be and hereby are permanently enjoined from using the name, likeness, voice or image of Jim Morrison to promote their band or concerts. With regards to cross complaint of Manzarek and Krieger The Court orders that said cross complainants take nothing as a result of their claims. All causes brought by Densmore against Astbury have been decided by the jury or The Court in favor of Astbury. All causes brought by the Estates against Astbury have been decided by the jury or The Court in favor of Astbury. All causes brought by Densmore against Doors Touring Inc., have been decided by the jury or The Court in favor of Doors Touring Inc. This Statement of Decision shall be placed and recorded in the court files of each of the two cases consolidated for trial. Counsel for Plaintiffs in each case shall prepare a proposed form of judgement and submit it to The Court within 10 days of the Final Statement of Decision. IT IS SO ORDERED. Dated May____,2005 Hon. Gregory W. Alarcon Superior Court Judge In conclusion a final decision will be forthcoming August 31 2005 in a “Non-Appearance (Case Review)" for "CONFIRMATION THAT A RULING IS ISSUED" If the court decides to finalize the proposed statement defendants can file for an appeal of which could take months to schedule a hearing. If the court modifies or over turns the proposed statement in anyway there will be ramifications to both the plaintiffs and defendants. We now await the final decision.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:10:34 GMT
This was another in the Darkstar series of articles for DCM which attempted to keep Doors fans informed as to what was going on in LA. Which was at the time one of the few avenues to explore the case open to fans as Official forums banned discussion until this one came along. sadly the war was FAR from over as it still continues to this day.
The War Is Over Compiled by Sara Perry
On June 1, 2005 the Los Angeles Superior Court granted access to most of the legal documents filed in this case for a "per document" fee. What follows below is a synopsis of just two of the documents. Many more interesting details of The Doors and their past are included in the other court documents.
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After over two years of trial proceedings, May 9, 2005, Judge Gregory W. Alarcon issued a “Proposed Statement Of Decision.” John Densmore’s case and the case filed by the Estate were consolidated on June 28, 2004 therefore the “Proposed Statement Of Decision” contains the proposed rulings on both of these cases and the ruling on the Manzarek and Krieger counter-suit.
The “Proposed Statement Of Decision” was filed on May 9, 2005 followed by defendants Manzarek and Krieger filing an “Objection Document” on May 24, 2005 opposing the “Proposed Statement Of Decision.” This matter was granted a hearing on June 16, 2005. Following the Status Hearing the “Proposed Statement Of Decision” was submitted as evident of court documents filed in Case No. BC289730.
The 40 page “Proposed Statement Of Decision” contains explanations for each of the plaintiffs and defendants charges giving reason why the court came to render their decisions on these cases. Within these explanations there were quotes from selected individuals who testified in the trial.
According to the documents The Doors didn't have a written agreement between themselves from 1966 - 1971 it was an oral agreement up until a retroactive partnership agreement was draw up and executed by all four Doors in 1971.
On January 5, 1971 The Doors attorney was instructed to draw up a partnership agreement that was to be retroactive back to 1966 and all four Doors signed it. This document was effective from January 1, 1966 and was terminated October 1, 1971 of which a new agreement was drawn up that included the three surviving Doors and subsequently the Estate.
It is my understanding that the October 1, 1971 document stayed in effect, (pursuant to what it says in the Proposed Statement) until April 18, 2003 because it had never been terminated. In addition to the retro 1966-1971 Agreement on March 8, 1971 all four Doors signed an Administration Agreement "in anticipation of Morrison leaving the United States." This agreement "authorized their business manager Greene an exclusive authority to enter into licensing agreements for music of the Doors. However, to avoid what had happened in 1969 with regard to the Buick incident, Greene was empowered to sign agreements for television and radio commercials ONLY after receiving the written approval of all four partners" (page 11 item #10 of Proposed Statement of Decision). “It is not indicated that Greene ever got permission for any commercial use of The Doors music.”
An Amendment to the 1966-1971 Partnership Agreement was made March 11, 1971. The amendment included in Page 11 Item #11 of the “Proposed Statement Of Decision”, "sets forth a specific provision prohibiting the use of the name, The Doors, by any partner upon termination of the partnership for any reason other than the death of a partner. The amendment was prompted by a concern that after L.A. Woman was delivered to Elektra, Morrison might leave the band and form another band in Europe using the name 'The Doors.' Manzarek testified that he signed the one-page amendment when it was prepared but did not read it and did not understand its purpose. Somer testified that he recalled some concern about the band splintering, and that the amendment, as well as all of the band's agreements, were explained to the band members before they signed." The court found Mr. "Somers' testimony to be credible and accepts it as true."
The Manzarek and Krieger Cross-Complaint was filed due to Densmore’s lack of agreement for two lucrative business opportunities. Cadillac offered 15 million for the use of Break On Through and Apple Computers offered 4 million dollars for the use of a Doors song not specified. At the time of the offers Krieger and Densmore rejected and Manzarek sought to pair up with the Estates thinking their influence could sway the non-participates into agreeing to the deals. Krieger and Densmore prevailed and the companies were denied usage of The Doors songs for commercial purposes. In addition, Densmore wrote an article in the Nation Magazine which appeared July 8, 2002, subsequently Rolling Stone Magazine republished the article. It was Manzarek and Krieger’s arguement that the Nation article was detrimental and “corporate America” would shun seeking the use of the music of The Doors for commercials.”
There was considerable confusion between Densmore and defendants, Manzarek and Krieger as to what the Partnership Agreement(s) set forth in terms and conditions. Densmore claimed that the band decisions were of unanimous vote. If anyone band member vetoed a proposition then the proposition was then denied by all. During the proceedings of this trial and before the judge Manzarek and Krieger testified that they understood the documents to be “majority rule.”
Page 36-38 Item #5 of Proposed Statement Of Decision
SIXTH CAUSE OF ACTION FOR DECLARATORY RELIEF
”This equitable cause of action was not presented to the jury. Manzarek and Krieger seek a declaration from the Court that 1) the rule of governance among them and Densmore is one of “majority rule” (although it is unclear as to what partnership this declaration is sought), 2) as between them and Densmore, Manzarek and Krieger may not tour and promote themselves as The Doors or The Doors of the 21st Century, 3) said names are not likely to confuse consumers, 4) no partner of a partnership can use his voice arbitrarily to frustrate the purposes of a partnership, “and/or” 5) the partners never had a meeting of the minds as to the provisions of the Old Doors and New Doors partnership agreements.
Plaintiffs urge that the rule is one of unanimity. Manzarek and Krieger urge that it is “majority rule.” The conduct of the parties and the testimony of the witness support the conclusion that unanimity is the rule of governance in these partnerships. The “Original Old Doors” 1966 written partnership agreement and the DMC 1969 written partnership agreement each provide that unanimity was the rule while Jim Morrison was alive. This is reconfirmed by the Administration Agreement entered into with Greene. This rule was extended to the 1971 New Doors Partnership agreement after Morrison died. Evidence that the unanimity requirement was the actual practice is found by the Buick incident, and later during the Cadillac proposal through the conduct of Manzarek seeking to change the rule to a “majority rule” as reflected in his voice mail to Stiffelman.
The only suggestion to the contrary about “majority rule” comes from the defendants’ post litigation statements, but their position is belied by their own words prior to litigation. On the commentary track of The Doors Collection DVD, Manzarek admits that any member of The Doors had a veto, a statement repeated in the liner notes of his own spoken word compact disc Myth & Reality:
“The Doors all had veto power. If one guy didn’t want to do something it wasn’t done. That’s the way it always worked out with The Doors. It was a four way split of all The Doors’ money, totally democratic with veto power.”
The court rejects the assertion that this requirement was not known to Manzarek and Krieger or that the written agreements did not accurately reflect their understanding of governance. First, these were college-educated men represented by legal counsel when the written agreements were signed.”
As discussed above, as for the written 1971 partnership agreement among Densmore, Manzarek and Krieger, the rule of unanimity was plainly set forth in paragraph 6 of the agreement. This court already has found that the use of the name The Doors of the 21st Century constituted a violation of Business and Profession Code Section 17500. The name 21st Century Doors is not a named used by Manzarek and Krieger, except as a name given to Tommy Gear to prepare the logos later rejected by Manzarek late in 2002. In any event, had Manzarek and Krieger used that name instead of The Doors of the 21st Century, the decision of the court would be the same.
As for the alleged “right to tour” as The Doors or The Doors of the 21st Century, the court has ruled previously through the granting of an injunction that Manzarek and Krieger have no such right. As for the finding that the names are not likely to confuse, the court has already ruled on that issue in the false advertising claim and through the granting of the injunction.
The court declines to set forth a declaration whether or not a partner can use his vote in bad faith, arbitrary, without good cause, to frustrate the purposes of the partnership. While correct, this rule of law has no application in this dispute, and this court finds no such evidence of the described conduct to merit such an advisory opinion regarding potential future conduct.
As for the final matter that the parties had no meeting of the minds when the Old Doors and New Doors written partnership agreements were entered into, the court finds no competent evidence to support such a conclusion. Manzarek’s argument that neither he nor Krieger read the agreements is unavailing and belied by the testimony of Somer, which the court accepts as true. The court rules in favor of Densmore.”
Many more explanations are given within this one document known as the “Proposed Statement Of Decision.” In addition there are many issues of argument contained in the defendants “Objection Document” that are too numerous and drawn out to include in this article. I leave it up to those of you who are interested to pursue reading the documentation that accompanies these cases.
It is relevant to understand that while these cases were brought before a jury there were equitable issues that would be decided on by the court. “At the conclusion of the trial, the parties attempted to agree on special jury instructions which would assist the court in subsequently determining the equitable issues. After considering counsel’s arguments and the extended duration of the trial, the court decided a general verdict was appropriate.” (Page 3)
On September 27 the jury reached their verdicts awarding NO damages to either of the parties.
As of July 21, 2005 the "Proposed Statement Of Decision" was made final along with an "Order Re: Permanent Injunction" which reads as follows: VIII. CURRENT DISPOSITION AND ORDERS OF THE COURT
For the reasons set forth in this court's 'Statement of Decision' dated July 21, 2005, the court issues the following Order:
1. With respect to the two Complaints of Densmore and the Estates, respectively, the court orders as follows:
a. The defendants Manzarek and Krieger, and those acting in concert with them, including their agents, representatives and employees, be, and hereby are, permanently enjoined from performing, touring, promoting their band, recording, and otherwise holding themselves out as The Doors, The Doors of the 21st Century, or any other name that includes the words The Doors, without the written consent of all of the partners of the Old Doors, which partners today are Densmore, Manzarek, Krieger, and the Morrisons, and the Coursons. Defendants’ request for a stay of the injunction is DENIED. b. That the profits (meaning all revenue less operating expenses other than legal fees for the defense of this litigation and salaries to any defendant herein) earned by Manzarek and Krieger from touring, performing, and recording as The Doors or The Doors of the 21st Century including merchandise, income from Diamond Night Productions, LLC.) be immediately divested of defendants and turned over to plaintiff Densmore and the Old Doors partnership, as described above. It is to be disbursed as follows:
1. One-third of all profits (as defined above) from January 1, 2003 through April 18, 2003, be delivered to Densmore. 2. All profits (as defined above) after April 18, 2003, be turned over to the Old Doors partnership.
c. That no later than August 15, 2005, defendants file and serve copies of a written accounting and supporting documentation, including a list identifying any individual or individuals who will testify at the hearing. Plaintiffs shall file and serve any objections to the written accounting and supporting documents by no later than August 22, 2005. Defendants are to file their response to plaintiffs’ objections by September 5, 2005. The hearing on accounting issues will be held on September 16, 2005. At the hearing, defendants are to appear before this court to present testimony and evidence supporting their written accounting and, in particular, demonstrating (1) all profits earned from and after June 30, 2003, (2) all profits earned by defendants prior to April 18 2003. d. Following the hearing ordered above to determine the amount of profits earned before and after April 18, 2003, the court will issue an additional order reflecting the proper distribution of any additional money that remains to be turned over, if any. Manzarek and Krieger shall be, and hereby are, permanently enjoined from using the name, likeness, voice or image of Jim Morrison to promote their band or their concerts.
2. With respect to the Cross-Complaint of Manzarek and Krieger, the court orders that said Cross-Complaints take nothing as a result of their claims. 3. All causes of action brought by Densmore against Astbury have been decided either by the jury or the court in favor of Astbury. All causes of action brought by the Estates against Astbury have been decided either by the jury of the court in favor of Astbury.
4. All causes of action brought by Densmore against Doors Touring, Inc., have been decided in favor of Doors’ Touring, Inc.
5. This Statement Of Decision shall be placed and recorded in the court files of each of the two cases consolidated for trial.
6. Counsel for plaintiffs in each case shall prepare a proposed form of judgement and submit it to the Court within 10 days of the Statement Of Decision.
IT IS SO ORDERED. DATED: July 21, 2005
Hon. Gregory W. Alarcon Superior Court Judge
There will be an additional hearing September 16, 2005. "At the hearing, defendants are to appear before this court to present testimony and evidence supporting their written accounting...."
This is the last article Darkstar did for DCM and was a follow up to her previous War Is Over article.
War Is Over II
Compiled by Sara Perry September 26th 2005
The new incarnation of The Doors aka “The Doors of the 21st Century”, aka “D21C” and as of August 5, 2005, “Riders On The Storm” filed an Appeal to the Statement Of Decision and Permanent Injunction on Sep 16, 2005.
The decision to file an Appeal was brought up when Martin Popoff interviewed Ray Manzarek following the Court’s decision on July 21, 2005:
MP: Are you going to fight it? RM: “No, the judge came down with the decision. All we can do is, if we want to, is appeal. And an appeal is….during the trial, if the judge has made errors, or if in his judgment he made errors, they can be reversed. But if he didn’t make an error, it can’t be reversed. So not, being an attorney, I don’t know. We’d have to consult attorneys.”
Following the Decisions passed down by the Court on July 21, the media picked up the story offering limited commentary from both Plaintiffs and Defendants:
PLAINTIFFS
“It didn’t have to come to this. We asked (Manzarek and Krieger) in January 2003 to respect that 50 percent of the partnership disagreed with what they were doing…..” --Jeffery Forer, Morrison attorney, San Diego Reader, July 25, 2005.
“I’m just so happy that the legacy of the true Doors, and Jim Morrison in particular, has been preserved by this decision.” “I’m very pleased that, in my opinion, the legacy is preserved. I never intended for Ray and Robby to stop playing – they’re great musicians. I hope Doors fans keep going to see them – it’s just the name is owned by me and them and the estate of Jim Morrison, and they kinda ran off with stolen property.” --John Densmore, Heavy Metal, Hard Rock Radio, July 25 2005.
“John has always held as his primary motive to preserve the legacy of the band.” “This wasn’t filed for economic reasons, it was to stop them from calling themselves The Doors.” --S. Jerome Mandel, Attorney, AP News, AZ Central, July 25 2005
“They’re playing Doors songs and calling themselves the Doors of the 21st Century. I kinda think it’s the 19th Century, it’s looking back,” said Densmore, who plays original music with his own band Tribal Jazz.” --John Densmore, Showbiz On-Line July 25 2005.
“I think our lead singer would be happy.” --John Densmore, Rolling Stone Jul 25 2005.
DEFENDANTS:
RM: “We can’t use the name The Doors in any way, shape or form. “For the rest of my life. Forever and ever and ever. Judge Pinky Allercon said that…that’s his nickname….Gregory Allercon.” MP: "Is that just for here in Canada?" RM: “We’re D21C, eh eh? (laughs) Like it says on Ty’s drums. D21C. So that’s who we are now.” MP: "Are you guys going to be working on new music?" RM: “Yeah, maybe. Yeah, we might. We’ve got some things; we’re talking about it. We’re in composition. We’re going to continue playing and work on some new music, and that’s what the future holds.” --Ray Manzarek, interview with Martin Popoff, Hard Rock On-Line Aug 2 2005.
Mike Ross in his article, “Long Live The Lizard King” included this comment; The Doors of the 21st Century were even sued by Jim Morrison’s parents – which really scares Manzarek: “I thought they were dead! Didn’t Jim say his mother and father are dead? So the fact that we’re also being sued by dead people, whoa…” --Ray Manzarek interview with Mike Ross, Edmonton Sun Jul 24 2005
“I take it as a real insult for people to say, ‘Well, you’re just doing this for the money….God, can’t we do it just to play the songs? Robby and I want to play, It’s like, listen, I’m not going to be doing this for too much longer – don’t you get it?” --Ray Manzarek interview with Mike Bell, Calgary Sun July 23 2005
In a bizarre twist of the ordinary the Washington Post reported in their article, “Re-Opened Doors: Another Wallow In The Mire” that Ray “Manzarek who looks fabulous for a 66-year old rocker, slandered Densmore again and again from the stage, and urged fans to surf to a Doors Web site, to e-mail character and sexual slurs to his former mate.”
In a similar protest an exonerated Ian Astbury told fans at an undisclosed Riders concert, “If you wanna see this show again get on the f---ing internet, get on the Doors website, get on John Densmore’s Forum room. Let them know what’s f---ing going on, let them know what you’ve seen tonight. You know what to do if you want to see this again. You gotta get out there and support it.” (cashmoneyuploads.com)
It would seem all of the rants and raves from both Plaintiffs and Defendants following the decision were pale in comparison to the documents being drafted prior to the Accounting hearing set for September 16, 2005. Attorney’s for each side were poised with their own axe to grind.
As the media met their deadlines so did accountant for the Defense, Alan Goldman who was busy compiling figures as requested by the Court in the Statement of Decision. Mr. Goldman offered the Court a declaration that states, “under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”
Regardless of Mr. Goldmans’ declaration the Plaintiffs did not agree with the accounting figures provided by the Defense as shown in their “Objection” document filed August 22, 2005 which states in part:
“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). 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.” (Plaintiffs Objection To Defendants “Accounting” and Plaintiffs’ Request for Gross Receipts – Filed Aug 22 2005 – Pages 4 & 5, Paragraphs 2 & 3.)
At the conclusion of Plaintiff’s “Objection” attorney’s stress what they believe should be forthcoming:
“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 presented at the September 16, 2005 hearing.” (Plaintiffs Objection To Defendants “Accounting” and Plaintiffs’ Request for Gross Receipts – Filed Aug 22 2005 – Page 11 – Paragraph 2.)
A “Tentative Ruling” was submitted by Judge Alarcon following a September 7th hearing which contains his views of a discussion between Plaintiffs and Defendants: 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 Documents 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. Plaintiffs 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 documents 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. (Tentative Decision On Motion To Quash Subpoena Duces Tecum of Alan Goldman – dated Sep 15 2005 – Page 2 & 3 – Paragraphs 1-9 – Adopted in “Notice Of Ruling” filed Sep 20, 2005)
IN 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
(Tentative Decision On Motion To Quash Subpoena Duces Tecum of Alan Goldman – dated Sep 15 2005 – Page 4 – Paragraph 1 – Adopted in “Notice Of Ruling” filed Sep 20, 2005)
Within hours of the “Notice Of Ruling” of Sep 15, 2005 Defendants filed an Appeal on the morning of Sep 16, 2005.
The Los Angeles Superior Court website offers information in regards to filing an Appeal in a Civil case. “An appeal is not a re-trial. New testimony and exhibits are not allowed. An appeal should not be made simply because a party thinks that they should have been believed or their opponent disbelieved. It is beyond the scope of the appellate court to re-decide a case by re-weighing the existing evidence. Filing a Notice of Appeal does not stop the enforcement of a judgment. A plaintiff who has obtained a judgment may attempt to collect money or remove a tenant even though an appeal is filed.”
At the time this article was published the Case Summary for BC289730 is still shown as “Pending.”
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:11:01 GMT
This was a follow up article Darkstar did for the DCM newsletter on December 7th 2005. She expressed surprise that the proceedings had gone on for so long. Little knowing that it would continue until 2008 before this sorry episode was finally resolved although the fallout from it still resounds today among Doors fans.
Strange Days News & Memorabilia Emailer Vol. 132
**** 3- The Final Verdict in Densmore vs. D21C ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ We are just short of the third anniversary, February 4, 2003, of the filing of John Densmore's case against Ray Manzarek and Robby Krieger. This is an update on the court proceedings..
On November 21, 2005 a “Judgment” was filed in this case. The Judgment reflects “the General Verdict of the Jury (September 27 2004), to the extent modified by the Statement of Decision handed down July 21, 2005.”
The Permanent Injunction(s) and Disgorgement of Profit rulings were reiterated in the Judgment although no monetary amounts were indicated with the exception of $750 awarded to the Estates to be paid by defendants Manzarek and Krieger. It is ordered that Defendants Manzarek and Krieger shall submit a complete accounting to the court, which will determine the amount of disgorgement. Defendant Ian Astbury is exonerated of all charges and in lieu of this fact Plaintiff Densmore and the Estates are to pay an undisclosed amount to Astbury and the Estates must pay Astbury’s attorney’s fees. A Motion Hearing has been set for December 9, 2005 at which time a determination will be made for “legal fees” associated with this case.
The “injunction does not prevent Manzarek and Krieger from identifying themselves as the founding or original members of 'The Doors'” but the injunction does indicate that any identification of either of the defendants must be adhered to by specific terms.
Defendants cannot use the name “The Doors,” or “Doors Of The 21st Century” or any name that includes the words, “'The Doors' without the written consent of all of the partners of the Old Doors which partners today are Densmore, Manzarek, Krieger, the Morrisons and the Coursons.” In addition, "defendants and those acting in concert with them, including agents, representatives, and employees are permanently enjoined from using the name, voice, likeness, or image of Jim Morrison to promote any concerts performed by them." (Section 4 Page 7 & 8 of Judgment filed Nov 21, 2005)
“All profits (meaning all revenues less operating expenses other than legal fees for the defense of this litigation and salaries to any defendant herein) earned by Manzarek and Krieger from touring, performing, and recording as The Doors or The Doors of the 21st Century (including merchandising income and income from Diamond Night Productions, LLC) be immediately divested of Manzarek and Krieger and turned over to Densmore and the Old Doors Partnership, as described below. The profits are to be distributed as follows:
One-third of all profits (as defined above) from January 1, 2003 through April 18, 2003, be delivered to Densmore; and All profits (as defined above) after April 18, 2003 to be turned over to the Old Doors Partnership.” (Page 8 Section 5 of “Judgment” filed Nov 21, 2005)
It is also ordered in the “Judgment” of November 21 2005, that Densmore and the Estates shall pay Doors Touring, Inc. an undisclosed amount and Manzarek and Krieger are ordered to pay Densmore and the Estates attorney’s fees as well as an undisclosed amount of money in addition to the disgorgement as stated in Section 5 page 8 of the Judgment.
For additional information and specifics about this case, please see the listing of court documents available from the DCM.
Following the Motion hearing set for December 9, 2005 the accounting should be completed and hopefully this case will adjourn shortly thereafter pending any appeal.
NOTE: My article was submitted without a title. Considering there are additional court dates on the docket it looks as though I will have one possibily two more articles to submit to finish the series so I can't say for sure if this is a FINAL Verdict or not. It s hard to believe I have been submitting trial articles to the DCM for almost 3 years. Who would have ever thought the proceedings would go on for this long.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:11:38 GMT
The trial itself went roughly like this with the principal characters many of whose whose names appear in documents posted here are mentioned.
June 29 - July 2, 2004 - jury selection
July 6 - July 9, 2004 - jury finalization, John Densmore testimony, Ian Astbury deposition
July 12 - July 16, 2004 - Ian Astbury deposition, Robert Greene, Abe Somer, Nigel Williamson, Robby Krieger deposition, David Kirby, Jerry Swartz
July 19 - July 23, 2004 - Todd Gray, Ray Manzarek deposition, Steven Bassett deposition, Mr. Skinner deposition, Tom Vitorino deposition, Mark Hurwitz, Rear Admiral Morrison, Michael Grace, Tommy Gear
July 26 - July 30, 2004 - Gary Stiffelman, Stewart Copeland, Anthony DeCurtis, Jaime Alvarez, Eric Kohler, Tom Vitorino deposition, Dr. John Anderson, Alan Goldman
August 2 - August 5, 2004 - Alan Goldman, Mr. Skinner deposition, Del Furano, Jay Coleman, Nicholas Clainos
August 9 - August 13, 2004 - Tom Vitorino, Nicholas Clainos, Ian Astbury testimony, Robby Krieger testimony, John Densmore testimony, Ray Manzarek testimony
August 16 - August 20, 2004 - John Densmore testimony, Ray Manzarek testimony , Ida Miller
August 23 - August 27, 2004 - Ray Manzarek testimony
August 30 - September 1, 2004 - closing arguments and judge's instructions; beginning of jury deliberations
September 7, 2004 - September 26, 2004 - jury deliberations: waiting for the verdicts
September 27, 2004 the verdicts returned
Here are a small selection of the more interesting comings and goings regarding the trial. Remember that Desnmore et al is Plaintiff and Krieger/Manzarek et al Defendants. Many just say 'motion' or 'notice' and have no explantion of what they are so I just chose ones that have a description of what they are about. This is an amalgam of both the estate case and Densmore case that were combined to avoid confusion. They are roughly in chronological order so form a decent timeline. Forgive me if I cock one up as Amrerican dating method is bizarre to the rest of the world
04/24/2003 Declaration (OF S. JEROME ) Filed by Attorney for Plaintiff/Petitioner 04/24/2003 Declaration (OF JOHN DENSMORE ) Filed by Attorney for Plaintiff/Petitioner 05/09/2003 Objection Document (TO ORIG DECL OF R. KREIGER ) Filed by Attorney for Pltf/Petnr 05/13/2003 at 08:30 am in Department 36, Gregory W. Alarcon, Presiding Order Re: Related Cases - Court makes order I presume that was to link the Densmore case to the Courson/Morrison case
08/06/2003 Motion (Re Calculation of Recoverable Cost & Att.Fees ) Filed by Atty for Plaintiff and Cross-Deft
10/15/2003 at 08:30 am in Department 36, Gregory W. Alarcon, Presiding Motion for Reconsideration - Continued by Court
10/20/2003 Miscellaneous-Other (APPENDIX OF NON CALIFORNIA AUTHORITIES CITED IN SUPPORT OF OPPOSITION TO MOTION RE CALCULATION OF RECOVERABLE COSTS AND FEES ) Filed by Attorney for Deft/Respnt
10/22/2003 at 08:30 am in Department 36, Gregory W. Alarcon, Presiding Motion for Reconsideration - Denied
A motion for reconsideration or motion to reconsider is a legal filing which someone can make to ask a court to review a decision and consider issuing a new decision in light of the review.
11/03/2003 Notice (OF MOTION FOR PRELIMANARY INJUNCTION ) Filed by Attorney for Plaintiff/Petitioner
11/03/2003 Opposition Document Filed by Attorney for Defendant/Respondent Presumably against the motion for the injunction?
11/03/2003 at 08:30 am in Department 36, Gregory W. Alarcon, Presiding Exparte proceeding - Held-Continued
An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. there were many of these during the trial of which some were contested by both parties.
11/24/2003 at 08:30 am in Department 36, Gregory W. Alarcon, Presiding Motion Hearing (re: Preliminary Injunction) - Submitted
12/10/2003 Motion for Summary Judgment Filed by Attorney for Defendant/Respondent
12/10/2003 Statement of Facts Filed by Attorney for Defendant/Respondent
12/24/2003 Motion for Continuance Filed by Attorney for Defendant/Respondent
03/11/2004 at 08:30 am in Department 36, Gregory W. Alarcon, Presiding Motion for Summary Judgment - Submitted
04/07/2004 Order (RULING ON MOTION FOR SUMMARY JUDGMENT ) Filed by Clerk
04/16/2004 Motion to Compel Filed by Atty for Plaintiff and Cross-Deft
A motion to compel asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses are insufficient. The motion to compel is used to ask the court to order the non-complying party to produce the documentation or information requested, and/or to sanction the non-complying party for their failure to comply with the discovery requests.
05/20/2004 Motion in Limine Filed by Attorney for Plaintiff/Petitioner
05/20/2004 Motion in Limine Filed by Attorney for Defendant/Respondent
Motion in limine (Latin: "at the threshold") is a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial. This is done in judge's chambers, or in open court, but always out of hearing of the jury. If a question is to be decided in limine, it will be for the judge to decide. Usually it is used to shield the jury from possibly inadmissible and unfairly prejudicial evidence. Once again there were many of these made.
05/21/2004 Reply/Response (REPLY IN SUPPORT OF DEMURRER AND IN THE ALT, MOTION TO STRIKE PORTIONS OF JOHN DENSMORE'S SECOND AMENDED COM;LAINT ) Filed by Attorney for Defendant/Respondent
06/04/2004 Reply to Motion (REPLY BRIEF IN SUPPORT OF PLAINTFF MOTION IN LIMINE TO THE MARITAL STATUS OF JAMES DOUGLAS MORRISON AND PAMELA COURSON ) Filed by Attorney for Plaintiff/Petitioner
06/07/2004 Reply to Motion (REPLY BRIEF IN SUPPORT OF PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING JAMES DOUGLAS MORRINSON'S RELATIONSHIP WITH HIS PARENTS ) Filed by Attorney for Plaintiff/Petitioner
06/17/2004 Request to Enter Default (default reject for Manzarek, Kreiger & Astbury-motion filed on 6-14-04 #7. 10 ) Filed by Attorney for Pltf/Petnr
Default is what can happen when the responding party fails to respond. The first party to file is called the Petitioner, the other party is the Respondent. Once served with the initial Petition for Dissolution, the Respondent has 30 days in which to file and serve his/her Response to the dissolution action. If the Respondent fails to file and serve a Response, the Petitioner can then ask the Court to find him/her in "Default." This is done via a document called "Request for Default."
06/29/2004 Notice ( OF DESIGNATION OF VIDEOTAPED DEPOSITION TESTIMONY TO BE SHOW AT TRIAL ) Filed by Attorney for Plaintiff/Petitioner
06/30/2004 at 09:30 am in Department 36, Gregory W. Alarcon, Presiding Jury Trial - Full Day of Jury Selection
So as yet the Jury has not even been selected .
07/06/2004 at 09:30 am in Department 36, Gregory W. Alarcon, Presiding Jury Trial - Start of Trial
07/12/2004 Motion in Limine (no. 8 to exclude from trial evidence of allegedly culpable conduct by third parties ) Filed by Defendant and Cross-Complainant
07/19/2004 Notice (of designation of videotaped deposition of thomas vitorino to be shown at trial ) Filed by Attorney for Plaintiff/Petitioner
08/05/2004 Opposition Document (TO MOTION TO HAVE EQUITABLE ISSUES FIRST DETERMINED BY COURT ) Filed by Defendant and Cross-Complainant
08/09/2004 Notice (OF AMENDED DESIGNATION OF VIDEOTAPED DEPOSITION TESTIMONY OF DANIEL SUGERMAN TO BE SHOWN AT TRIAL ) Filed by Attorney for Defendant/Respondent
08/11/2004 Notice (of designation of videptaped of daneil sugerman ) Filed by Attorney for Plaintiff/Petitioner
08/11/2004 Objection (to defendants noitce of amended and supplemental designations of of daniel sugerman ) Filed by Attorney for Plaintiff/Petitioner
08/12/2004 Motion in Limine (to exclude from trial bootleg recording of the doors of the 21st century ) Filed by Attorney for Defendant/Respondent
08/24/2004 Notice (OF TRIAL RULING RE ADMISSIBILITY OF REGISTRATION OF RIGHTS UNDER CIVIL CODE SECTION 3344.1 ) Filed by Defendant and Cross-Complainant 08/24/2004 Notice (of trial ruling re certain tangible evidence regarding defendant Raymond Manzarek ) Filed by Defendant and Cross-Complainant 08/24/2004 Notice (re defendants objections to plaintiffs designation videotape excerpts ) Filed by Defendant and Cross-Complainant 09/02/2004 Notice (OF TRIAL RULING RE: DEDUCTIBILITY OF ATTORNEY'S FEES ) Filed by Atty for Deft and Cross-Complnt
09/02/2004 at 09:30 am in Department 36, Gregory W. Alarcon, Presiding Jury Trial - Jury Deliberating (1st day)
09/27/2004 at 09:30 am in Department 36, Gregory W. Alarcon, Presiding Jury Trial (DRAFT) - Verdict Reached
05/09/2005 Miscellaneous-Other (PROPOSED STATEMENT OF DECISION ) Filed by Clerk
07/21/2005 Order (RE PERMANENT INJUCTION ) Filed by Court 07/21/2005 Statement of Decision Filed by Court 08/08/2005 Objection Document Filed by Atty for Defendant and Cross-Compl
08/09/2005 Notice (OF ENTRY OF ORDER RE PERMANENT INJUNCITON ) Filed by Attorney for Plaintiff/Petitioner
08/15/2005 Miscellaneous-Other (ACCOUNTING OF MANZAREK AND KREIGER DECLARATION OF ALAN GOLDMAN ) Filed by Atty for Defendant and Cross-Compl
08/22/2005 Declaration (S. JEROME MANDEL ) Filed by Attorney for Plaintiff/Petitioner
09/09/2005 Order (ORDER ON EX-PARTE APPL. OF DEFTS./ X-COMPLTS. KRIEGER AND MANZAREK, DEFT. DOORS TOURING INC. AND 3RD PARTY GOLDMAN TO QUASH SDT, SHORT- ENING TIME FOR HEARING TO 9-15-05 ) Filed by Attorney for Pltf/Petnr 09/09/2005 Ex-parte Request for Order (EX-PARTE APPL. OF DEFTS./X-COMPLTS RAYMOND MANZAREK AND ROBERT KRIE- GER, DEFENDANT DOORS TOURING INC. AND 3RD PARTY ALAN GOLDMAN FOR OR- DER SHORTENING TIME FOR HRING. ON MOT. TO QUASH SUBPOENA DT) Filed by Defendant and Cross-Complainant
09/16/2005 at 08:30 am in Department 36, Gregory W. Alarcon, Presiding Order to Show Cause (HEARING ON ACCOUNTING ISSUES) – Submitted
09/16/2005 Notice of Appeal Filed by Attorney for Defendant/Respondent
12/01/2005 Memorandum of Costs ($1,639.65 TO DEPT. 36 MOTION RE ISSUE OF LEGAL FEES 12/9/05 NO COURT FILE 12/7/05 ) Filed by Attorney for Pltf/Petnr
12/06/2005 Memorandum of Costs ($85,019.00 TO DEPT. 36 MOTION RE ISSUE OF LEGAL FEES 12/9/05 NO COURT FILE 12/7/05 ) Filed by Attorney for Deft/Respnt
12/09/2005 at 08:30 am in Department 36, Gregory W. Alarcon, Presiding Motion Hearing (RE ISSUE OF LEGAL FEES) - Matter continued
05/19/2006 Notice (OF SEPARATION OF COUNSEL ) Filed by Atty for Defendant and Cross-Compl
11/06/2006 Order (DECISION ON FURTHER HEARING RE: PLAINTIFF'S MOTION TO STRIKE COSTS OF DEFENDANTS DOORS TOURING INC ) Filed by Court
11/06/2006 Order (DECISION ON FURTHER HEARING RE: MOTION TO STRIKE OR TAX COSTS OF IAN ASTBURY ) Filed by Court
11/16/2006 in Department 36, Gregory W. Alarcon, Presiding Ruling on Submitted Matter (RE: MOTIONS FOR ATTORNEYS' FEES) – Completed
11/16/2006 Order (DECISION ON FURTHER HEARING RE: MOTION FOR ATTORNEYS' FEES (The Courson Estate Plaintiffs and the Morrison Estate Plaintiffs ) Filed by Judge 11/16/2006 Order (DECISION ON FURTHER HEARING RE: MOTION FOR ATTORNEYS' FEES (Plaintiff John Densmore) ) Filed by Judge
11/27/2006 at 08:30 am in Department 36, Gregory W. Alarcon, Presiding Ruling on Submitted Issues (RULING ON SUBMITTED MOTIONFOR ATTORNEY'S FEES) – Completed
11/29/2006 Order (DECISION ON FURTHER HEARING RE MOTION FOR ATTORNEY'S FEES, BY DEFENDANT IAN ASTBURY ) Filed by Court
12/15/2006 Notice of Appeal Filed by Defendant
12/19/2006 Notice of Appeal Filed by Plaintiff
12/27/2006 Designation of Record on Appeal Filed by Plaintiff
08/26/2008 Remittitur (AFFIRMED REMITTITUR ISSUED ON 8-22-08 S/T D-36 8-29-08 ) Filed by Clerk
12/12/2008 Remittitur (DISMISSED REMITTITUR ISSUED ON 12-11-08 S/T D-36 12-17-08 ) Filed by Clerk
A remittitur is a ruling by a judge (usually upon motion to reduce or throw out a jury verdict) lowering the amount of damages granted by a jury in a civil case. Usually, this is because the amount awarded exceeded the amount demanded. The term is sometimes used for a reduction in awarded damages even when the amount awarded did not exceed the amount demanded, but is otherwise considered excessive.If the motion is granted, the plaintiff may either accept the reduced verdict or submit to a new trial.
Obviously this was the final throw of the dice for the Krieger/manzarek side. And it failed.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:12:05 GMT
This document relates to some of the instructions given to the jury by the court with regards the amount of money gained from the infringement and the amount that could be awarded as a result of that infringement.
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Case No. BC 289730 BC 294495
JOHN DENSMORE, individually and on behalf of California general partnership comprised of John Densmore, the Estate of Jam es Morrison, and the Estate of Pamela Courson, Raymond Manzarek and Robert Krieger,
Plaintiff,
Vs.
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.
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 on behalf of the DOORS MUSIC CO., a California general partnership and on behalf of the DOORS, 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,
Plaintiffs.
DEFENDANTS AND CROSS COMPLAINANTS’ EXHIBITS CITED IN SUPPORT OF MEMORANDUM OF POINTS AND AUTHORITIES PER COURT ORDER OF FEBRUARY 8TH 2005
#18.24 TRADEMARK DAMAGES –DEFENDANTS PROFITS
Plaintiffs have elected not to seek such damages. 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 partnership on whose behalf they have sued are entitled to any profits earned by the defendants that are attributable to the infringement, which the plaintiffs prove, by a preponderance of evidence. Profit is determined by deducting all expenses from gross revenue. Gross revenue is all of the defendants’ receipts from using the mark in the sale of good or services. The plaintiffs have a burden of proving the defendants gross revenue by a preponderance of evidence. Expenses are all operating costs, overhead and production costs incurred in producing the gross revenue. The defendants have a burden of proving the expenses and the portion of the profit attributable to the factors other than the use of the infringed trade mark by a preponderance of evidence. Unless you find that a portion of the defendants profit from the sale of the goods and services using the mark as attributable to factors other than the use of the mark you shall find the total profit is attributable to the infringement.
SPECIAL INSTRUCTION #15 APPORTIONMENT OF GROSS PROFITS
The defendants must turn over to the plaintiffs all of the profits that have resulted from the defendants infringing activities. The defendants however may reduce the amount of profits which they would otherwise be required to turn over to the plaintiffs if they can show what part of these profits did not result from the defendants infringing activities but instead resulted from their legitimate sales efforts for non infringing activities. To apportion these profits between the defendants infringing and non infringing activities the defendants have the burden to prove what percentage of their profits were attributable to factors other than the infringing activities. For example the defendants must prove what percentage of their sales emanated from consumers who were not confused about the identity of the bands members and were not confused about the plaintiffs possible endorsement or sponsorship of the band or knew and understood that they were not going to see or hear a performance by all of the surviving members of The Doors. If the defendants cannot prove that with a reasonable degree of certainty which portion of their profits were attributable to non infringing activity all of their profits must be disgorged or turned over to the plaintiffs.
SPECIAL INSTRUCTION #16 GROSS PROFITS PERMISSABLE DEDUCTIONS.
Defendants have the burden of proving the amount of costs and expenses that may be deducted from their gross revenue in determining the amount of defendant’s profits attributable to the infringement. In order to deduct certain costs or expenses from the amount of the gross revenue, the defendants must affirmatively prove that the specified cost or expense sought to be deducted was actually earned incurred and borne. Accordingly you may refuse to deduct from the defendants gross revenue these costs claimed by the defendants that are not supported by documentary evidence. You may also refuse to deduct the defendants claimed losses on infringing sales. Finally you may refuse to deduct those claimed costs which defendants failed to show were related to or necessitated by the sales of the infringing goods or services.
SPECIAL INSTRUCTION #17 IMPERMISSIBLE DEDUCTIONS – PARTNER SALARIES
The salaries paid to partners are not costs that may be deducted from the defendants’ gross revenue in calculating the amount of the defendants’ profits from the infringing activities.
SPECIAL INSTRUCTION #18 IMPERMISSIBLE DEDUCTIONS – FEDERAL INCOME TAX
If you find the defendants infringement of The Doors mark was wilful or intentional the defendants may not deduct federal income taxes paid by them on revenue attributable to the infringement.
SPECIAL INSTRUCTION #19 DEDUCTION OF EMPLOYEE SALARIES.
If you find that certain of the defendants paid salaries to employees you may generally deduct these amounts if the amount of these salaries are reasonable to the duties performed, were incurred in the normal course of business and the employees to whom the salaries could be paid took little or no part in policy making on the defendants behalf. You may not deduct from the defendant gross revenue the amount of such salaries if you find the employee whose salaries are claimed as a deductible cost were the principle or dominant forces behind the infringement or were primarily responsible for the infringing activities.
SPECIAL INSTRUCTION #20 IMPERMISSIBLE DEDUCTIONS – ATTORNEY FEES
In calculating the amount of defendants’ net profits you should not deduct from the defendants gross revenue those amounts claimed to have been incurred by the defendants attorneys fees in connection with this legal proceeding.
SPECIAL INSTRUCTION #21
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 instance if you find that the calculations are imprecise and that imprecision is due to the defendants conduct you may enhance the award. Moreover if you find that the defendants’ infringement was wilful or intentional, you may double or treble any award of profits to the plaintiffs, or the partnership on whose behalf they sue.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:12:41 GMT
As the appeal process dragged on into 2006/07 and 2008 this is a perfect example of the amount of disinformation that was available to Doors fans.
Here the Krieger/Manzarek lawyer states that the judge altered the Jury decision to award damages. This question of damages caused a lot of ill feeling among Doors fans throughout the years after the trial which was a common bone of contention after the verdict was announced as some fans thought Densmore was awarded millions of dollars damges.
Sites like mine and Saras had discussed the verdict and Judges decision and posted the information that is now here but Official Sites like LL never allowed such things until this place came along and started to show fans the truth of the matter via actually court documents.
The Judge did not take the action Mark Poster describes as is easily discovered in reading the SOD document. ......no damages were awarded, except for a small sum ($750) to the Morrison family, simply a sharing out of the illegally acquired profits between all 4 owners.
Of course Ray and Robby were not interested in informing their fans of this and preferred inflammatory statements like the one I highlight below from their legal team which was reported far and wide thoughout the media between 2005 and up to the present. Interesting that
Legal dispute among The Doors nears end By PAUL ELIAS – Aug 2008 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.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:13:07 GMT
In a truly bizarre twist to this whole drama Ray seemed to be in dispute with his own legal team.
THE DOORS: Sure, Blame It on the Lawyers Since Doors keyboardist Ray Manzarek lost the lawsuit brought against him by his former bandmate, drummer John Densmore, he has decided to sue his law firm. Manzarek has filed suit against the St. Paul Fire and Marine Insurance Company for three-million dollars, claiming it breached its contract to defend him in the suits brought against him and Robby Krieger by Densmore and the estate of Jim Morrison. The suits claimed that Manzarek and Krieger wrongfully used The Doors' name in touring with their new version of the band, The Doors of the 21st Century. Since losing the suit they now go by Riders on the Storm KSLX Radio March 2006
It turned out to be his Insurance Company who he expected to pay for his court defeat and the Radio piece as scurrilous as the reporting of the trial in the media.. They obviously contested the suit from Ray. At first the case against St. Paul Fire And Marine Insurance Company was dismissed by a district court in 2006, a decision that was overruled by the U.S. 9th Circuit Court Of Appeals in San Francisco, California in 2008 after Ray appealed. Where this went since 2008 is unknown as yet.
here is a little of the information on this rather odd turn of events in relation to the trial.
Thursday, July 10, 2008 Manzarek v. St. Paul fire & Marine Ins. Co. Ray Manzarek of "The Doors" classic rock group filed suit against his insurance company, St. Paul Fire & Marine, after St. Paul's refused to provide a defense under Manzarek's general liability policy.
Manzarek was sued by John Densmore and Jim Morrison's parents for infringing on "The Doors" name, logo, and trademark. Manzarek incurred more than $3 million in legal fees. However, St. Paul's argued that the policy had a "field of entertainment" exclusion, barring "personal injury or advertising injury that results from the content of, or the advertising or publicizing for, any properties or programs which are within your field of entertainment business." The District Court dismissed Manzarek's case with prejudice, citing the exclusion as conspicuous, clear and unambiguous.
However, the 9th Circuit reversed, finding a contractual duty to defend. The Court of Appeals said the lower court did not apply the exclusion language to the facts. If the language was narrowly construed, advertising injury could occur, and thus St. Paul must defend, in distribution channels not listed in the exclusion. Thus, specifically, the court found that Manzarek was entitled to advertising injury coverage for marketing t-shirts and guitars with "The Doors" logo. Further, the underlying lawsuit never specified the type of product allegedly being sold, which, if stated, might have allowed St. Paul to escape liability under this exclusion.
Finally, the court held that Manzarek should have been allowed to amend his complaint to show the exclusion did not bar coverage, which was the reason for the initial dismissal. For more information, please see: Manzarek et al. v. St. Paul Fire & Marine Insurance Co., No. 06-55936, 2008 WL 763385 (9th Cir. Mar. 25, 2008). Entertainment Law Resources Blog
The Doors Founder Disputes Coverage Denial Insurer Refused to Defend Trademark Infringement Suit Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (C.A. 9, Mar. 25, 2008) Raymond Manzarek was a founding member of The Doors rock group. Manzarek and Doors Touring, Inc (DTI) were sued in state court in two trademark cases brought by John Densmore, former drummer of The Doors, and family members of former vocalist Jim Morrison. The trademark suits alleged that Manzarek and DTI infringed the name, trademark and logo of the rock group. Additionally, Densmore alleged economic damage and damage to his reputation. The two state court cases were consolidated for trial. A jury found Manzarek and DTI liable on some claims, but awarded no damages. Nevertheless, Manzarek and DTI incurred defense costs of over $3 million. Manzarek and DTI’s CGL insurer, St. Paul Fire & Marine Insurance Company, refused to defend or indemnify Manzarek and DTI against the trademark infringement suits. Manzarek and DTI brought this lawsuit in state court alleging breach of contract and bad faith suit against St. Paul, which removed to federal court. The District Court (C.D. Calif.) dismissed the claims with prejudice, for failure to state a claim. Manzarek and DTI appealed. On de novo review, the Ninth Circuit first held that the trial court erred in dismissing the breach of contract claim. The District Court relied on a Field of Entertainment Limitation Endorsement (FELE) to the insurance policy; however, the Court of Appeals held that the FELE did not abrogate coverage of all of the claims asserted against the insureds. Applying California law, the Court held that there should be a narrow construction of the restrictions on coverage by the FELE. Manzerk and DTI were defending claims in the trademark infringement suit that they had marketed merchandise online and at concerts, but the claims were silent on which products; consequently, these claims did raise a potential for coverage under the insurance policy. Similarly, Densmore’s claims of damage to reputation were sufficient to reach mental anguish and thus could be covered under the “bodily injury” portion of the insurance policy. Callifornia law requires an insurer to defend if the underlying lawsuit alleges liability for damages even “potentially” covered by the policy. Doubts as to coverage must be resolved in favor of the insured. If any claims are covered, all claims must be defended. The Court of Appeals suggested that the District Court failed to follow these standards. The Court also held that, because of the possibility of coverage, the trial court erred in dismissing the claim for breach of the implied covenant of good faith and fair dealing. Lastly, the Court held that it was an abuse of discretion for the trial court to not give Manzarek and DTI leave to amend their complaint before entering final judgment against them. They were not notified that the Court was considering dismissal with prejudice, and there was no good reason not to allow the complaint to be amended. The Court of Appeals reversed the dismissal and remanded the case for further proceedings. Judicial View.com
MANZAREK vs. ST. PAUL FIRE & MARINE INSURANCE COMPANY Duty to Defend Owed in Connection With Underlying Trademark and Logo Infringement Lawsuit Related to Rock and Roll Band, The Doors In Raymond Manzarek, et al. v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (9th Cir. March 25, 2008), the United States Ninth Circuit Court of Appeals reversed the District Court’s entry of judgment in favor of St. Paul relative to the duty to defend underlying lawsuits against Raymond Manzarek and Doors Touring, Inc. (“DTI”) alleging trademark and logo infringement related to the use of the band named “The Doors”. The parties’ dispute arose out of two different lawsuits filed against Manzarek and DTI. Both lawsuits alleged Manzarek and members of his band were liable for infringing on The Doors name, trademark and logo in conjunction with their planned national and international tours. Both underlying lawsuits included allegations against Manzarek and DTI for the improper use of The Doors logo in conjunction with the marketing of products and merchandise. In addition, a lawsuit brought by John Densmore (the former drummer for the Doors) alleged that Manzarek and his band’s conduct caused Densmore to suffer economic damages as well as damage to his reputation and stature by causing people to believe that he was not, and is not, an integral and respected part of The Doors band, or is one member who easily can be replaced by another drummer. As a result, Densmore alleged that he sustained emotional distress damages. St. Paul insured Manzarek under a commercial general liability policy for the period of May 24, 2002 to May 24, 2003. St. Paul did not actually issue such policy to Manzarek until October 3, 2002. In addition, St. Paul insured Manzarek, DTI and Robert Krier (founding member of The Doors) under a commercial general liability policy issued for the period of December 30, 2002 to December 30, 2003. St. Paul did not actually issue this policy to DTI until February 19, 2003. Both St. Paul policies afforded bodily injury and advertising injury liability coverage. The policies included the following relevant provisions: Advertising injury liability. We’ll pay amounts any protected person is legally required to pay as damages for covered advertising injury that: • results from the advertising of your products, your work, or your completed work and • is caused by an advertising injury offense committed while this agreement is in effect.
Advertising injury offense means any of the following offenses: • Libel, or slander, in or with covered material. • Making known to any person or organization covered material that, disparages the business, premises, products, services, work, or completed work of others. • Making known to any person or organization covered material that violates a person’s right of privacy. • Unauthorized use of any advertising idea or advertising material, or any slogan or title, of others in your advertising. • Advertising means attracting the attention of others by any means for the purpose of: • seeking customers or supporters; or • increasing sales or business. Advertising idea means a manner or style of advertising that others use and intend to attract attention in their advertising. But we won’t consider information used to identify or record customers or supporters, such as a list of customers or supporters, to be an advertising idea. Advertising material means any covered material that: • is subject to copyright law; and • others use and intend to attract attention in their advertising. In addition, the St. Paul policies included a “Field of Entertainment Limitation Endorsement” (“FELE”) which narrowed the scope of coverage afforded by the policies. The FELE states as follows: Field of Entertainment. We won’t cover personal injury or advertising injury that results from the content of, or the advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment Business. Properties or Programs means any of your properties, products, programs, materials or other matter. Field of Entertainment Business includes the following; • The creation, production, publication, distribution, exploitation, exhibition, advertising and publicizing of product or material in any and all media such as motion pictures of any kind and character, television programs, commercials or industrial or educational or training films, phonograph records, audio or video tapes, CDs or CD ROMs, computer online services or Internet or Web site pages, cassettes or discs, electrical transcriptions; music in sheet or other form, live performance, books or other publications. • The ownership, operation, maintenance or use of radio and television broadcasting stations. CATV systems, cinemas, stage productions with living actors, and any • similar exhibition or broadcast media. • The ownership, operation maintenance or use of merchandising programs, advertising, or publicity material, characters or ideas; whether or not on your premises or in your possession at the time of the alleged offense. Manzarek and DTI tendered the defense of the underlying lawsuits to St. Paul. Based on the FELE in both policies, St. Paul denied the defense of Manzarek and DTI against the lawsuits. Subsequently, Manzarek and DTI filed a complaint for declaratory relief and bad faith against St. Paul. In response, St. Paul removed the action to United States District Court and filed a motion to dismiss arguing that potential coverage was not afforded under its policies based on the FELE. The District Court agreed and entered judgment in favor of St. Paul on May 19, 2006. In reversing the District Court’s decision, the Court of Appeals found that the FELE did not apply to bar all potential claims against Manzarek and DTI relative to the use of “The Doors” logo for advertising purposes. The Court of Appeals stated as follows: California law requires us to adopt a narrow construction of the FELE. With such narrow construction, the FELE would not exclude advertising injury coverage if, for example, Manzarek and DTI began distributing "The Door’s Own" line of salad dressing. Advertising injury coverage for such a product would still exist because Manzarek and DTI would not necessarily publicize, distribute, exploit, exhibit, or advertise in media such as motion pictures, etc. For similar reasons, the FELE would not completely exclude advertising injury coverage if Manzarek and DTI began marketing a line of t-shirts or electric guitars with The Doors logo or Morrison’s likeness on them. Although marketing these products would undoubtedly expose Manzarek and DTI to a claim for advertising injury, Manzarek and DTI would still enjoy advertising injury coverage under the Policies. In this case, the Underlying Lawsuits allege that Manzarek and DTI marketed products and merchandise at their concerts and on The Doors official website. The Underlying Lawsuits, however, are silent about what type of products and merchandise that Manzarek and DTI produced and marketed. For all St Paul knew when it denied coverage, the products marketed by Manzarek and DTI included guitars, t-shirts, and perhaps (although we realize it is not likely) salad dressing bottles with The Doors logo and/or Dr. Morrison’s likeness affixed to them. These allegations raised a potential for coverage under the Policies and, for that reason, the district court erred by summarily dismissing Manzarek’s and DTI’s breach of contract claim. In addition, the Court of Appeals found that Densmore’s claims for “breach of contract” and damage to his reputation resulting in emotional distress constituted potential “bodily injury” as defined in the St. Paul policies. Lastly, the Court of Appeals found that since potential coverage was afforded under the St. Paul policies to Manzarek and DTI for the underlying lawsuits, their claims for breach of the implied covenant of good faith and fair dealing should not have been dismissed. Lewis Brisbois Bisgaard & Smith LLP
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:14:02 GMT
This was the actual appeal document which reveresed the previous Judgement on Ray's right to sue his insurers. FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RAYMOND MANZAREK; DOORS TOURING, INC., a Californiacorporation, No. 06-55936 Plaintiffs-Appellants, D.C. No.v. CV-06-02082-RST. PAUL FIRE & MARINE OPINION INSURANCECOMPANY, a Minnesota corporation, Defendant-Appellee. Appeal from the United States District Courtfor the Central District of California Manuel L. Real, District Judge, PresidingArgued and SubmittedFebruary 11, 2008—Pasadena, California Filed March 25, 2008 Before: Alfred T. Goodwin, Betty B. Fletcher, andN. Randy Smith, Circuit Judges.Opinion by Judge N.R. Smith 2971 COUNSEL Kirk A. Pasich, Esq., Dickstein Shapiro LLP, Los Angeles, California, for the plaintiffs-appellants. Andrew R. McCloskey, Esq., Riedl, McCloskey & Waring LLP, San Diego, California, for the defendant-appellee. OPINIONN. R. Smith, Circuit Judge: We hold that the district court erred by dismissing Raymond Manzarek’s and Doors Touring, Inc.’s (“DTI”) amended complaint because the underlying complaints raised at least the potential for coverage under the operative insurance policies. We further hold that the district court abused its discretion by not giving Manzarek and DTI an opportunity to amend their complaint. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand for further proceedings. I. Background A. Underlying Lawsuits This insurance coverage and bad faith lawsuit arose out oftwo lawsuits (“Underlying Lawsuits”) filed in California state court against Manzarek (a founding member of the classic rock group The Doors), DTI, and the other members of Manzarek’s band at the time of the filing of the lawsuits. John Densmore (the former drummer for The Doors) filed one of the Underlying Lawsuits (“Densmore Lawsuit”). The parents of Jim Morrison (the former vocalist for The Doors) and the parents of Pamela Courson (Morrison’s late wife) together filed the other underlying lawsuit (“Courson Lawsuit”). 2975 MANZAREK v. ST. PAUL FIRE & MARINE INS. Both Underlying Lawsuits alleged that Manzarek and members of his band were liable for infringing on The Doors name, trade- mark, and logo in conjunction with their planned national and international tours. Both Underlying Lawsuits included alle- gations against Manzarek and DTI for the improper use of The Doors logo in conjunction with the marketing of products and merchandise. Additionally, the Densmore Lawsuit alleged that the breaches by Manzarek and his band caused Densmore to suffer economic damages as well as damage to his “reputation and stature by causing people to believe that he was not, and is not, an integral and respected part of The Doors band, or is one member who easily can be replaced by another drummer.” The state trial court consolidated the Underlying Lawsuitsfor trial but reserved some equitable claims for determination by the court. At trial, the jury found Manzarek and the other defendants liable on some claims but awarded no damages. The record before us is not clear what result the state trial court reached on the equitable claims that it removed from the jury’s consideration. Manzarek’s and DTI’s defence fees and costs in the Underlying Lawsuits exceeded $3 million. B. The Policies From May 24, 2002 to May 24, 2003, St. Paul Fire & Marine Insurance Company (“St. Paul”) insured Manzarek only under a commercial general liability policy (“Manzarek Policy”). The Manzarek Policy was effective beginning on May 24, 2002 but St. Paul did not issue it until October 3,2002. From December 30, 2002 to December 30, 2003, St. Paul insured Manzarek, DTI, and Robert Krieger1underanother commercial general liability policy (“DTI Policy”).The DTI Policy was effective beginning on December 30,2002, but St. Paul did not issue it until February 19, 2003. It (1 The policy lists “Robbie Creeder” as an insured. This appears to be a typographical error as Robert Krieger is a founding member of The Doors and was part of Manzarek’s new band. 2976 MANZAREKv. ST. PAUL FIRE & MARINE INS. is not clear from our review of the record when St. Paul actually delivered copies of the Manzarek Policy or the DTI Policy to its insureds, though the complaint in this action alleges that St. Paul did not deliver the DTI Policy until sometime after February 28, 2003. Among other things, both of the commercial general liability policies (“Policies”) insured against the occurrence of “bodily injury,” “property damage,” “personal injury,” and “advertising injury.” Manzarek and DTI argue, and St. Paul concedes, that some of the alleged conduct falls within the “advertising injury” portion of the Policies. That portion of the Policies contains the following provisions: Advertising injury liability. We’ll pay amounts any protected person is legally required to pay as damages for covered advertising injury that: • results from the advertising of your products, your work, or your completed work; and • is caused by an advertising injury offence committed while this agreement is in effect. Advertising injury offence means any of the following offences: • Libel, or slander, in or with covered material. • Making known to any person or organization covered material that disparages the business, premises, products, services, work, or completed work of others. • Making known to any person or organization covered material that violates a person’s right of privacy. 2977 MANZAREK v. ST. PAUL FIRE & MARINE INS. • Unauthorized use of any advertising idea or advertising material, or any slogan or title, of others in your advertising. Advertising means attracting the attention of others by any means for the purpose of: • seeking customers or supporters; or • increasing sales or business. Advertising idea means a manner or style of advertising that others use and intend to attract attention in their advertising. But we won’t consider information used to identify or record customers or supporters, such as a list of customers or supporters, to be an advertising idea. Advertising material means any covered material that: • is subject to copyright law; and • others use and intend to attract attention in their advertising. Both Policies also contain a Field of Entertainment Limitation Endorsement (“FELE”) which “changes [the insured’s] Commercial General Liability Protection” and “reduces coverage.” In relevant part, the FELE “reduces coverage” as follows: Field of Entertainment. We won’t cover personal injury or advertising injury that results from the content of, or the advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment Business. 2978 MANZAREKv. ST. PAUL FIRE & MARINE INS. Properties or Programs means any of your properties, products, programs, materials or other matter. Field of Entertainment Business includes the following; • The creation, production, publication, distribution, exploitation, exhibition, advertising and publicizing of product or material in any and all media such as motion pictures of any kind and character, television programs, commercials or industrial or educational or training films, phonograph records, audio or video tapes, CDs or CD ROMs, computer on-line services or internet or Web site pages, cassettes or discs, electrical transcriptions, music in sheet or other form, live performance, books or other publications. • The ownership, operation, maintenance or use of radio and television broadcasting stations. CATV systems, cinemas, stage productions with living actors, and any similar exhibition or broadcast media. • The ownership, operation maintenance or use of merchandising programs, advertising or publicity material, characters or ideas: whether or not on your premises or in your possession at the time of the alleged offence. As referenced above, both Policies also insured against the occurrence of “bodily injury.” The Policies define “bodily injury” to mean “any physical harm, including sickness or disease, to the physical health of other persons.” The Policies include mental anguish, injury, or illness, and emotional distress in the definition of covered “bodily injuries.” 2979 MANZAREK v. ST. PAUL FIRE & MARINE INS. C. The Instant Action On February 5, 2003, Manzarek and DTI notified St. Paul of the Densmore Lawsuit. St. Paul responded by letter on February 18, 2003. That letter notified Manzarek and DTI that, although St. Paul was still investigating coverage issues, its preliminarily determination was that the Policies did not cover the Densmore Lawsuit. According to the complaint, St. Paul delivered this letter before it issued the DTI Policy or delivered a copy of it to its insureds. St. Paul did not issue the DTI Policy until February 19, 2003—nearly two weeks after Manzarek and DTI tendered a copy of the Densmore Lawsuit to St. Paul. The complaint also alleges that St. Paul preliminarily denied coverage before it considered the language contained in either of the Policies. On March 5, 2003, St. Paul notified Manzarek and DTI that both Policies contained the FELE. St. Paul denied coverage and refused to defend the Densmore Lawsuit on that basis. On March 19, 2003, St. Paul reiterated the applicability of the FELE and notified Manzarek and DTI that the Policies did not obligate it to defend or indemnify the Densmore Lawsuit. Thereafter, Manzarek and DTI tendered the Courson Lawsuit to St. Paul. On May 6, 2003, St. Paul advised its insureds that the Policies did not provide coverage for the Courson Lawsuit. St. Paul therefore denied coverage and declined to defend the Courson Lawsuit based on its interpretation of the FELE. In the months that followed, Manzarek and DTI continued to demand a defense under the Policies and St. Paul persisted in its refusal to defend or indemnify its insureds. Manzarek and DTI filed this coverage and bad faith lawsuit against St. Paul in Los Angeles Superior Court approximately two years later. On April 5, 2006, Manzarek and DTI voluntarily amended their complaint. The amended complaint contained claims against St. Paul for (1) breach of contract; (2) 2980 MANZAREK v. ST. PAUL FIRE & MARINE INS. breach of the implied covenant of good faith and fair dealing; and (3) declaratory relief. St. Paul removed the action to the United States District Court on April 6, 2006. On April 11, 2006, St. Paul filed a motion to dismiss the first amended complaint pursuant to Rule 12(B )(6) of the Federal Rules of Civil Procedure. The district court heard argument on St. Paul’s motion to dismiss on May 15, 2006 and entered a two-line docket entry granting the motion to dismiss that same day. The docket entry by the district court states that “[t]he court GRANTS the motion. Defendants shall submit a proposed order.” On May 18, 2006, St. Paul provided the district court with a proposed order granting the motion to dismiss with prejudice. The district court signed St. Paul’s proposed order on May19, 2006. The clerk entered the order on May 22, 2006. That order dismissed with prejudice Manzarek’s and DTI’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing, holding that the FELE was conspicuous, plain, clear, and unambiguous. Consequently, the district court held that St. Paul owed Manzarek and DTI no duty to defend or indemnify against the claims in the Underlying Lawsuits. Additionally, the district court found that “ mendment of Plaintiffs’ First Amended Complaint would be futile because plaintiffs would be unable to allege facts that would alter these strictly legal determinations.” Manzarek and DTI appeal the district court’s order granting the motion to dismiss. Manzarek and DTI contend that the district court erred by
(1) holding that no duty to defend existed under the Policies;
(2) dismissing their claim for breach of contract; and
(3) dismissing their claim for breach of the implied covenant of good faith and fair dealing. Alternatively, Manzarek and DTI argue that the district court should have allowed them the opportunity to amend their complaint to state a viable claim for relief against St. Paul.
2981 MANZAREK v. ST. PAUL FIRE & MARINE INS. Manzarek and DTI argue that the district court abused its discretion by not giving them a chance to amend.
II. Standard of ReviewWe review de novo the district court’s decision to grant St.Paul’s motion to dismiss under Federal Rule of Civil Procedure 12(B )(6). See Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (internal citation omitted). “When ruling on a motion to dismiss, we may ‘generally consider only allegations contained in the pleadings,exhibits attached to the complaint, and matters properly subject to judicial notice.’ ” Id. at 899-900 (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)).
We accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non moving party.
Id. at 900. We need not accept as true conclusory allegations that are contradicted by documents referred to in the complaint. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136,1139 (9th Cir. 2003) (internal citation omitted). “Denial of leave to amend is reviewed for an abuse of dis-cretion.” Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). “ ‘Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.’ ” Id. (quoting Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991)).
III. Discussion In this diversity case, we must apply California law wheninterpreting the Policies. See Aetna Cas. & Sur. Co., Inc. v. Centennial Ins. Co., 838 F.2d 346, 350 (9th Cir. 1988). Inter- pretation of insurance contracts under California law requires us to employ general principles of contract interpretation. MacKinnon v. Truck Ins. Exch., 73 P.3d 1205, 1212 (Cal. 2003); Safeco Ins. Co. of Am. v. Robert S., 28 P.3d 889, 893 (Cal. 2001). Under California law, we are to give effect to the
2982 MANZAREKv. ST. PAUL FIRE & MARINE INS. “mutual intention of the parties at the time the contract is formed.” MacKinnon, 73 P.3d at 1213; see Cal. Civ. Code § 1636. Clear, explicit, and unambiguous contractual language gov-erns. See Boghos v. Certain Underwriters at Lloyd’s of London, 115 P.3d 68, 71 (Cal. 2005); Cal. Civ. Code § 1638. In the event of an ambiguity, we must interpret contractual terms to “protect the objectively reasonable expectations of the insured.” Boghos, 115 P.3d at 71 (internal quotation marks and citations omitted). “Only if these rules do not resolve a claimed ambiguity do we resort to the rule that ambiguities are to be resolved against the insurer.” Id. A. Breach of Contract Manzarek and DTI assert that the district court erred by dis-missing their claim for breach of contract with prejudice because the allegations in the Underlying Lawsuits triggered a contractual duty to defend. For the reasons set forth below, we agree.
1. Applicable Law a. Scope of Duty to Defend [1]Under California law, an insurer must defend its insured“if the underlying complaint alleges the insured’s liability for damages potentially covered under the policy, or if the complaint might be amended to give rise to a liability that would be covered under the policy.” Montrose Chem. Corp. v. Superior Court, 861 P.2d 1153, 1160 (Cal. 1993) (citation omitted). The duty to defend is broader than the duty to indemnify. Id. at 1157. Even if no damages are awarded, the duty to defend may still exist. Id. “ ‘The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy.’ ” Id. (quoting Horace Mann Ins. Co.
2983 MANZAREK v. ST. PAUL FIRE & MARINE INS.v. Barbara B., 846 P.2d 792, 795 (Cal. 1993)). “Any doubt as to whether the facts establish the existence of the defense duty must be resolved in the insured’s favor.” Montrose Chem. Corp., 861 P.2d at 1160. If any of the claims in the underlying complaint are covered, the insurer has a duty to defend the entire action. Horace Mann Ins. Co., 846 P.2d at 797-98. The court may consider facts outside the complaint “ ‘when they reveal a possibility that the claim may be covered by the policy.’ ” Id. at 795. b. Enforceability of Coverage Limitations
[2]“nsurance coverage is interpreted broadly so as to afford the greatest possible protection to the insured, [whereas] exclusionary clauses are interpreted narrowly against the insurer.” MacKinnon, 73 P.3d at 1213 (internal quotation marks and citation omitted) (bracketed text in original); see Mariscal v. Old Republic Life Ins. Co., 50 Cal. Rptr. 2d 224, 227 (Cal. Ct. App. 1996) (recognizing that “exclusions are strictly interpreted against the insurer”). An “exclusionary clause must be conspicuous, plain and clear.” Mackinnon, 73 P.3d at 1213 (internal quotation marks and citation omitted). “This rule applies with particular force when the coverage portion of the insurance policy would lead an insured to reasonably expect coverage for the claim purportedly excluded.” Id. “The burden is on the insured to establish that the claim is within the basic scope of coverage and on the insurer to establish that the claim is specifically excluded.” Id. “Coverage may be limited by a valid endorsement and, if a conflict exists between the main body of the policy and an endorsement, the endorsement prevails.” Haynes v.Farmers Ins. Exch., 89 P.3d 381, 385 (Cal. 2004). 2. Analysis The district court signed and entered St. Paul’s proposed order granting St. Paul’s motion to dismiss the claim for breach of contract.
The order states that “[t]he FELE was
2984 MANZAREK v. ST. PAUL FIRE & MARINE INS. sufficiently conspicuous” and notes that “n addition to being conspicuously referenced in the policy declarations and attached as a separate endorsement, the language of the FELE [was] plain and clear.” The district court then concluded that based on the plain and clear language of the FELE, it was reasonable for St. Paul to believe its insureds understood the limiting effect of the FELE on advertising injury coverage under the Policies. Based on that conclusion, the district court dismissed the breach of contract claim with prejudice.
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US Law.com Intellectual Property Law: Seattle Trademark Lawyer
Ninth Circuit Finds Endorsement No Reason to Dismiss Advertising Injury Case
Ex-members of The Doors and surviving relatives of Jim Morrision sued Ray Manzarek, a founding member of The Doors, and Doors Touring, Inc., in two lawsuits, alleging that Mr. Manzarek and his new band were liable for infringing THE DOORS name, trademark, and logo in conjunction with their planned national and international tours. Mr. Manzarek’s defence fees and costs in those suits exceeded $3 million.
St. Paul Fire & Marine Insurance Co. insured Mr. Manzarek under a commercial general liability policy and Mr. Manzarek, DTI, and another band member under a second CGL policy. Mr. Manzarek and the other insureds claimed they were entitled to coverage under the policies’ “advertising injury” provisions.
Mr. Manzarek and DTI sued St. Paul in California state court after St. Paul refused to defend or indemnify them based on a “Field of Entertainment Endorsement” (FELE) that excepted from coverage advertising injury within the policyholders’ “field of entertainment business.” St. Paul removed the action to the Central District of California and then moved to dismiss for failure to state a claim. The court granted the motion, finding the Field of Entertainment Endorsement was conspicuous, unambiguous, and enforceable.
On March 25, the Ninth Circuit reversed this finding. It found:
“The fundamental problem with the district court’s decision is that it fails to apply the language of the FELE to the factual allegations contained in the complaints in the Underlying lawsuits. The FELE excludes coverage for ‘advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment Business.’ Contrary to the interpretation adopted by the district court, the definition of Field of Entertainment Business is not broad enough to cover the entirety of the allegations in the Underlying Lawsuits.”
The court concluded:
“In this case, the Underlying Lawsuits allege that Manzarek and DTI marketed products and merchandise at their concerts and on The Doors official website. The Underlying Lawsuits, however, are silent about what type of products and merchandise that Manzarek and DTI produced and marketed. For all St. Paul knew when it denied coverage, the products marketed by Manzarek and DTI included guitars, t-shirts, and perhaps (although we realize it is not likely) salad dressing bottles with The Doors logo and/or Morrison’s likeness affixed to them. These allegations raised the potential for coverage under the Policies and, for that reason, the district court erred by summarily dismissing Manzarek’s and DTI’s breach of contract claim.”
For the same reasons, the court also concluded the district court erred by summarily dismissing the insureds’ claim for breach of the implied covenant of good faith and fair dealing.
The case cite is Manzarek v. St. Paul Fire & Marine Ins. Co., __ F.3d __, 2008 WL 763385, No. 06-55936 (9th Cir. March 25, 2008).
[3] The fundamental problem with the district court’s decision is that it fails to apply the language of the FELE to the factual allegations contained in the complaints filed in the Underlying Lawsuits. The FELE excludes coverage for the “advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment Business.” Contrary to the interpretation adopted by the district court, the definition of Field of Entertainment Business is not broad enough to cover the entirety of the allegations in the Underlying Lawsuits. In relevant part, the Policies define “Field of Entertainment Business” as follows: The creation, production, publication, distribution, exploitation, exhibition, advertising and publicizing of product or material in any and all media such as motion pictures of any kind and character, television programs, commercials or industrial or educational or training films, phonograph records, audio or video tapes, CDs or CD ROMs, computer on-line services or internet or Web site pages, cassettes or discs, electrical transcriptions, music in sheet or other form, live performance, books or other publications. (Emphasis added).
[4] California law requires us to adopt a narrow construction of the FELE. With such narrow construction, the FELE would not exclude advertising injury coverage if, for example,
2985 MANZAREKv. ST. PAUL FIRE & MARINE INS. Manzarek and DTI began distributing “The Door’s Own” line of salad dressing.2Advertising injury coverage for such a product would still exist because Manzarek and DTI would not necessarily publicize, distribute, exploit, exhibit, or advertise in media such as motion pictures, etc. For similar reasons, the FELE would not completely exclude advertising injury coverage if Manzarek and DTI began marketing a line of t-shirts or electric guitars with The Doors logo or Morrison’s likeness on them. Although marketing these products would undoubtedly expose Manzarek and DTI to a claim for advertising injury, Manzarek and DTI would still enjoy advertising injury coverage under the Policies.
[5] In this case, the Underlying Lawsuits allege that Manzarek and DTI marketed products and merchandise at their concerts and on The Doors official website. The Underlying Lawsuits, however, are silent about what type of products and merchandise that Manzarek and DTI produced and marketed.
For all St. Paul knew when it denied coverage, the products marketed by Manzarek and DTI included guitars, t-shirts, and perhaps (although we realize it is not likely) salad dressing bottles with The Doors logo and/or Morrison’s likeness affixed to them. These allegations raised a potential for coverage under the Policies and, for that reason, the district court erred by summarily dismissing Manzarek’s and DTI’s breach of contract claim.
[6] Additionally, the district court erred by dismissing the breach of contract claim because the Underlying Lawsuits raised a potential for coverage under the “bodily injury” portion of the Policies. The Densmore Lawsuit contained an allegation that Manzarek’s and DTI’s actions caused damage to Densmore’s “reputation and stature by causing people to believe that he was not, and is not, an integral and respected2St. Paul uses “The Doors Own” salad dressing as an example of a prod-uct that Manzarek and DTI could market and still enjoy advertising injury coverage under the Policies.
2986 MANZAREK v. ST. PAUL FIRE & MARINE INS. part of The Doors band, or is one member who easily can be replaced by another drummer.” This allegation was sufficient to raise the potential of an award of mental anguish or emotional distress damages. For that additional reason, the district court erred by dismissing the breach of contract claim.
[7] Finally, the district court held that dismissal was appropriate because “ince the FELE was conspicuous, plain and clear, it was reasonable for St. Paul to believe the insured understood it.” We also find this problematic, because we must take the allegations in the complaint as true. The complaint makes clear that St. Paul had not yet delivered or issued the DTI Policy to Manzarek and/or DTI when Manzarek and DTI demanded coverage under the Policies.
The record is silent about when St. Paul delivered the Manzarek Policy. It should go without saying that an insured cannot be deemed to reasonably understand the terms of a policy he or she has not seen or fully comprehend the exclusionary language of a policy that has not yet been issued. In light of those facts, again under the deferential standard of review applicable to a motion to dismiss, it is far from clear that “it was reasonable for St. Paul to believe the insured understood” the impact of the FELE on advertising and personal injury coverage. Thus, it was error for the district court to adopt St. Paul’s proposed order and dismiss the breach of contract claim. B. Breach of the Implied Covenant of Good Faith and Fair Dealing The entirety of the district court’s analysis regarding its decision to dismiss Manzarek’s and DTI’s claim for breach of the implied covenant of good faith and fair dealing is encapsulated in the following sentence: “St. Paul did not breach the covenant of good faith and fair dealing in denying coverage or in declining to defend the Underlying Actions as a matter of law.” This holding was in error.
[8] California law is clear, that without a breach of the insurance contract, there can be no breach of the implied
2987 MANZAREKv. ST. PAUL FIRE & MARINE INS. covenant of good faith and fair dealing. Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 638-39 (Cal. 1995). In Waller, the California Supreme Court stated that: It is clear that if there is no potential for coverage and, hence, no duty to defend under the terms of the policy, there can be no action for breach of the implied covenant of good faith and fair dealing because the covenant is based on the contractual relationship between the insured and the insurer. Id. at 639; see also Am. Med. Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 244 F.3d 715, 720 (9th Cir. 2001) (“Without a right to coverage, the Waller court concluded, there is no obligation the insurer may frustrate.”).
[9] As discussed above, the district court erred by dismissing the claim for breach of contract. In light of our holding regarding the viability of that claim, the district court also erred by summarily dismissing the claim for breach of the implied covenant of good faith and fair dealing.
C. Leave to Amend
[10] The district court also abused its discretion by failing to allow Manzarek and DTI an opportunity to amend. “Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998) (internal quotation marks,brackets, and citation omitted). “The decision of whether to grant leave to amend nevertheless remains within the discretion of the district court, which may deny leave to amend due to ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.’ ” Leadsinger, Inc. v. BMG Music Publ’g., 5122988 MANZAREK v. ST. PAUL FIRE & MARINE INS.F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “An outright refusal to grant leave to amend without a justifying reason is, however, an abuse of discretion.” Id. (internal citation omitted).
[11] Here, the district court abused its discretion, because Manzarek and DTI only learned that the district court would not allow them an opportunity to remedy any perceived defects in the complaint after St. Paul submitted its proposed order, and the district court summarily signed and entered it. The district court never explained at a hearing that it intended to dismiss the complaint with prejudice. The district court’s docket entry (granting the motion to dismiss) also did not reflect that the dismissal would be without leave to amend. Though the district court signed an order, stating that“ mendment of Plaintiffs’ First Amended Complaint would be futile because plaintiffs would be unable to allege facts that would alter these strictly legal determinations,” it never allowed Manzarek and DTI a chance to explain how they could amend the complaint if allowed to do so. Indeed, according to the record before us on appeal, it appears that the district court did not even consider the viability of any potential amendments to the complaint before dismissing the complaint with prejudice. At the appellate hearing, Manzarek’s and DTI’s counsel suggested that Manzarek and DTI could have made several factual amendments and clarifications to undermine St. Paul’s argument that the FELE excluded all potential for coverage under the Policies. Manzarek and DTI argued that they might have amended the complaint
(1) to identify the products that they marketed to make clear that the FELE did not exclude advertising injury coverage for those products;
(2) to allege that they were not told of the applicability of the FELE at the time they purchased the Policies;
(3) to allege that St. Paul misrepresented the terms of the Policies at the time they purchased the Policies; or (
4) to allege that the FELE makes the2989 MANZAREKv. ST. PAUL FIRE& MARINE INS. Policies unconscionable. We express no view on the viability of these potential amendments or whether the complaint can stand without amendment. The district court should have the opportunity to reconsider its ruling on the original complaint and to consider the proposed amendments in the first instance.
[12] This record does not evidence any other reason to deny leave to amend. There was no indication of undue delay, bad faith, or dilatory motive on the part of Manzarek or DTI. See Leadsinger, Inc., 512 F.3d at 532. There was also no showing of prejudice to St. Paul by allowing an amendment. Id. Instead, the opposite was true. The action had been in federal court for less than two months when the district court dismissed the claims with prejudice. Trial was not fast approaching. In summary, nothing in the record justified the district court’s decision to enter dismissal with prejudice. The district court summarily signed and entered a written order proposed by St. Paul including such relief. The district court therefore abused its discretion by refusing to allow Manzarek and DTI an opportunity to amend their complaint before entering final judgment against them.
IV. Conclusion We therefore reverse and remand the district court’s order granting St. Paul’s motion to dismiss. Taking the allegations in the complaint as true, Manzarek and DTI stated a viable claim for breach of contract against St. Paul. As a result, the district court erred by dismissing Manzarek’s and DTI’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing. Lastly, the district court abused its discretion by failing to allow Manzarek and DTI the opportunity to amend.
REVERSED.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:14:59 GMT
Some legal opinion on Ray's ruling against his insurers. 2990 MANZAREK v. ST. PAUL FIRE & MARINE INS. INSURANCE NOTES Claim of Damage to Reputation From Infringement of Trade Name Held to Potentially Allege “Bodily Injury” 04.09.2008 The California Supreme Court established in Waller v. Truck Insurance Exchange, Inc., 11 Cal.4th 1 (1995), that emotional or physical distress resulting from economic loss does not constitute “bodily injury” under general liability policies, because economic loss is not a covered occurrence. In Waller, a minority shareholder sued the insureds under business tort theories for mismanaging corporate property resulting in economic loss that caused him to suffer emotional distress. The Court concluded the insurer had no duty to defend. In its March 25, 2008 decision, Manzarek v. St. Paul Fire & Marine Insurance, 2008 WL 763385, the Ninth Circuit Court of Appeals held that an allegation that the reputation of a founding rock band member was damaged by the insured’s infringement of the band’s name and logo potentially alleged “bodily injury,” where the term was defined to include emotional distress. The case arose out of a dispute involving The Doors, founded by Ray Manzarek, Jim Morrison, John Densmore, and Robbie Krieger. Manzarek formed another band with Krieger and others. Manzarek and Doors Touring, Inc. (“DTI”) were sued by Densmore and the parents of the late Morrison for infringing on The Doors name, trademark and logo in conjunction with their planned tours and in the marketing of products and merchandise. In addition, Densmore alleged that Manzarek and DTI’s conduct caused him economic damages and damage to his “reputation and stature by causing people to believe that he was not, and is not, an integral and respected part of The Doors band, or is one member who easily can be replaced by another drummer.” At trial, the jury found Manzarek and other defendants liable on some claims but awarded no damages. Manzarek and DTI incurred defense costs of over $3 million in the suit. Manzarek and DTI were insured under a commercial general liability policy issued by St. Paul Fire & Marine Insurance Company. St. Paul conceded that some of the alleged conduct fell within the “advertising injury” coverage of its policy but asserted that a special endorsement applied to preclude any duty to defend or indemnify. St. Paul further contended that the underlying suits did not raise a potential for “bodily injury” liability. Manzarek and DTI sued St. Paul. The district court agreed with St. Paul and dismissed Manzarek and DTI’s suit. The Ninth Circuit reversed. The St. Paul policy defined “bodily injury” to include not only sickness or disease but also mental anguish and emotional distress. The Ninth Circuit stated that Densmore’s allegation that Manzarek and DTI’s conduct caused damage to his “reputation and stature by causing people to believe that he was not, and is not, an integral and respected part of The Doors band, or is one member who easily can be replaced by another drummer” sufficiently raised the potential of an award of emotional distress damages. Although the Ninth Circuit cited Waller later in the opinion, it did not discuss Waller on the issue of “bodily injury” resulting from economic loss. Nor did the Ninth Circuit discuss whether the St. Paul policy required, as general liability policies ordinarily require, that “bodily injury” be caused by an “occurrence” or whether any of the alleged conduct constituted an “occurrence.” In holding that the allegation of damage to reputation in and of itself raised a potential for coverage, the Ninth Circuit appears to have reached its conclusion without addressing key coverage issues or authority. If it had, the conclusion might have been different. www.musickpeeler.com/publications.....otes&id=881WENN NEWS SERVICE Manzarek Wins Right To Appeal Breach Of Contract Lawsuit 25 March 2008 7:58 AM, PDT | From wenn.com An appeals court has reopened a breach of contract lawsuit brought by The Doors keyboardist Ray Manzarek against an insurance firm. Manzarek's case against St. Paul Fire And Marine Insurance Company was dismissed by a district court in 2006, a decision that was overruled by the U.S. 9th Circuit Court Of Appeals in San Francisco, California on Tuesday. The 69-year-old had sued the firm when it declined to provide insurance coverage for losses sustained by Manzarek and Doors Touring, Inc. when The Doors drummer John Densmore successfully won a legal battle to stop Manzarek and guitarist Robby Krieger from touring as The Doors Of The 21st Century. Manzarek took out a commercial liability insurance policy covering himself against advertising injury, which includes losses from slander, libel and privacy infringement, in 2002 to 2003. When Densmore's 2003 lawsuit cost Manzarek over $3 million (GBP1.5 million), the keyboard player notified St. Paul Fire And Marine Insurance Company, who declined to provide insurance. Manzarek then sued for breach of contract, but the case was thrown out of court in 2006. WENN NEWS SERVICE Manzarek Wins Right To Appeal Breach Of Contract Lawsuit 25 March 2008 7:58 AM, PDT | From wenn.com An appeals court has reopened a breach of contract lawsuit brought by The Doors keyboardist Ray Manzarek against an insurance firm. Manzarek's case against St. Paul Fire And Marine Insurance Company was dismissed by a district court in 2006, a decision that was overruled by the U.S. 9th Circuit Court Of Appeals in San Francisco, California on Tuesday. The 69-year-old had sued the firm when it declined to provide insurance coverage for losses sustained by Manzarek and Doors Touring, Inc. when The Doors drummer John Densmore successfully won a legal battle to stop Manzarek and guitarist Robby Krieger from touring as The Doors Of The 21st Century. Manzarek took out a commercial liability insurance policy covering himself against advertising injury, which includes losses from slander, libel and privacy infringement, in 2002 to 2003. When Densmore's 2003 lawsuit cost Manzarek over $3 million (GBP1.5 million), the keyboard player notified St. Paul Fire And Marine Insurance Company, who declined to provide insurance. Manzarek then sued for breach of contract, but the case was thrown out of court in 2006. Smith, Smith & Feeley Law News Ninth Circuit Court Opinions Ninth Circuit Finds a Duty to Defend Lawsuits Filed Against a Rock Band Musician and Related Corporation The Ninth Circuit Court of Appeals has held that a general liability insurer had a duty to defend a rock band musician and a related corporation against underlying actions filed by former band members alleging improper use of a logo in advertising merchandise and damage to reputation. (Manzarek v. St. Paul Fire & Marine Ins. Co. (2008) 2008 WL 763385) Facts St. Paul Fire & Marine Insurance Company issued commercial general liability policies to Raymond Manzarek (a founding member of the rock group The Doors) and Doors Touring, Inc. (DTI). The policies each contained a Field of Entertainment Limitation Endorsement (FELE), which excluded coverage for “advertising injury” that “results from the content of, or the advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment.” The policies defined “Field of Entertainment Business” to include”[t]he creation, production, publication, distribution, exploitation, exhibition, advertising and publicizing of product or material in any and all media such as motion pictures…, television programs, commercials or industrial or educational or training films, phonograph records, audio or video tapes, CDs or CD ROMs, computer on-line services or internet or Web site pages, cassettes or discs, electrical transcriptions, music in sheet or other form, live performance, books or other publications.” Manzarek and DTI sued St. Paul for breach of contract and bad faith after St. Paul refused to defend them against two underlying actions filed by former band members and their heirs. The underlying actions alleged that Manzarek and DTI (1) infringed The Doors name, logo and trademark in advertising their planned show tours and (2) improperly used The Doors logo on their website to market products and merchandise. In one of the underlying actions, a former band member also alleged that he suffered damage to his reputation. The federal trial court granted St. Paul’s motion to dismiss based on the policies’ FELE. The trial court held that the FELE was conspicuous, plain and clear and that it eliminated St. Paul’s duty to defend the underlying actions. Manzarek and DTI appealed, arguing that the FELE did not relieve St. Paul of the duty to defend Manzarek and DTI in the underlying actions. Manzarek and DTI also complained that St. Paul had not issued or delivered any policy before Manzarek and DTI tendered the underlying actions to St. Paul. Holding The Ninth Circuit Court of Appeal, applying California law, reversed the trial court’s ruling in favor of St. Paul, and held that St. Paul did have a duty to defend Manzarek and DTI under the policies’ “advertising injury” coverage and “bodily injury” coverage. With respect to “advertising injury” coverage, the Ninth Circuit noted that the underlying actions were silent as to what product the insureds advertised on their website. Further, according to the appellate court, the FELE might not apply to advertisements for products such as t-shirts, salad dressing or guitars outside the insureds’ field of entertainment business. Because the FELE did not necessarily apply in all scenarios, St Paul had a duty to defend Manzarek and DTI under the “advertising injury” coverage. The appellate court also expressed concern about enforcing a limitation of coverage if the policies were not delivered prior to the insureds’ tender of the underlying actions. With respect to “bodily injury” coverage, the appellate court further held that the former band member’s alleged damage to reputation potentially triggered the “bodily injury” coverage, since St. Paul’s definition of “bodily injury” included mental anguish and emotional distress. Thus, for this independent reason, St. Paul had a duty to defend Manzarek and DTI in the underlying actions. Comment A troubling aspect of this case is the Ninth Circuit’s apparent holding that the claim of damage to reputation constituted “bodily injury” within the meaning of the St. Paul policy. First, in prior cases, the California state courts have held that even when a policy defines “bodily injury” so as to include “emotional distress,” emotional distress resulting from an otherwise uncovered economic loss does not qualify as “bodily injury.” (See, e.g., Ticor Title Ins. Co. v. Employers Ins. of Wausau (1995) 40 Cal.App.4th 1699.) Although the Ninth Circuit was required to apply California law, it appears that the Ninth Circuit either overlooked or ignored this prior California case law. Second, given the Ninth Circuit’s conclusion that the insurer was required to defend under the “advertising injury” coverage, it was unnecessary for the court to ever reach the issue of “bodily injury” coverage. Under the circumstances, it can perhaps be argued that the Ninth Circuit’s comments about the scope of “bodily injury” coverage are non-binding “dicta.” www.ninthcircuitopinions.com/catego...versity/page/2/MORE LAW ON-LINE LEXPEDIA Date: 03-25-2008 Case Style: Raymond Manzarek v. St. Paul Fire & Marine Insurance Company Case Number: 06-55936 Judge: N. Randy Smith Court: United States Court of Appeals for the Ninth Circuit on appeal from the Central District of California, Los Angeles County Plaintiff's Attorney: Kirk A. Pasich, Esq., Dickstein Shapiro LLP, Los Angeles, California, for the plaintiffs-appellants. Defendant's Attorney: Andrew R. McCloskey, Esq., Riedl, McCloskey & Waring LLP, San Diego, California, for the defendant-appellee. Description: We hold that the district court erred by dismissing Raymond Manzarek's and Doors Touring, Inc.'s ("DTI") amended complaint because the underlying complaints raised at least the potential for coverage under the operative insurance policies. We further hold that the district court abused its discretion by not giving Manzarek and DTI an opportunity to amend their complaint. We have jurisdiction under 28 U.S.C. ? 1291. We reverse and remand for further proceedings. I. Background A. Underlying Lawsuits This insurance coverage and bad faith lawsuit arose out of two lawsuits ("Underlying Lawsuits") filed in California state court against Manzarek (a founding member of the classic rock group The Doors), DTI, and the other members of Manzarek's band at the time of the filing of the lawsuits. John Densmore (the former drummer for The Doors) filed one of the Underlying Lawsuits ("Densmore Lawsuit"). The parents of Jim Morrison (the former vocalist for The Doors) and the parents of Pamela Courson (Morrison's late wife) together filed the other underlying lawsuit ("Courson Lawsuit"). Both Underlying Lawsuits alleged that Manzarek and members of his band were liable for infringing on The Doors name, trademark, and logo in conjunction with their planned national and international tours. Both Underlying Lawsuits included allegations against Manzarek and DTI for the improper use of The Doors logo in conjunction with the marketing of products and merchandise. Additionally, the Densmore Lawsuit alleged that the breaches by Manzarek and his band caused Densmore to suffer economic damages as well as damage to his "reputation and stature by causing people to believe that he was not, and is not, an integral and respected part of The Doors band, or is one member who easily can be replaced by another drummer." The state trial court consolidated the Underlying Lawsuits for trial but reserved some equitable claims for determination by the court. At trial, the jury found Manzarek and the other defendants liable on some claims but awarded no damages. The record before us is not clear what result the state trial court reached on the equitable claims that it removed from the jury's consideration. Manzarek's and DTI's defense fees and costs in the Underlying Lawsuits exceeded $3 million. B. The Policies From May 24, 2002 to May 24, 2003, St. Paul Fire & Marine Insurance Company ("St. Paul") insured Manzarek only under a commercial general liability policy ("Manzarek Policy"). The Manzarek Policy was effective beginning on May 24, 2002 but St. Paul did not issue it until October 3, 2002. From December 30, 2002 to December 30, 2003, St. Paul insured Manzarek, DTI, and Robert Krieger1 under another commercial general liability policy ("DTI Policy"). The DTI Policy was effective beginning on December 30, 2002, but St. Paul did not issue it until February 19, 2003. It 1The policy lists "Robbie Creeder" as an insured. This appears to be a typographical error as Robert Krieger is a founding member of The Doors and was part of Manzarek's new band. is not clear from our review of the record when St. Paul actually delivered copies of the Manzarek Policy or the DTI Policy to its insureds, though the complaint in this action alleges that St. Paul did not deliver the DTI Policy until sometime after February 28, 2003. Among other things, both of the commercial general liability policies ("Policies") insured against the occurrence of "bodily injury," "property damage," "personal injury," and "advertising injury." Manzarek and DTI argue, and St. Paul concedes, that some of the alleged conduct falls within the "advertising injury" portion of the Policies. That portion of the Policies contains the following provisions: Advertising injury liability. We'll pay amounts any protected person is legally required to pay as damages for covered advertising injury that: ? results from the advertising of your products, your work, or your completed work; and ? is caused by an advertising injury offense committed while this agreement is in effect. Advertising injury offense means any of the following offenses: ? Libel, or slander, in or with covered material. ? Making known to any person or organization covered material that disparages the business, premises, products, services, work, or completed work of others. ? Making known to any person or organization covered material that violates a person's right of privacy. ? Unauthorized use of any advertising idea or advertising material, or any slogan or title, of others in your advertising. Advertising means attracting the attention of others by any means for the purpose of: ? seeking customers or supporters; or ? increasing sales or business. Advertising idea means a manner or style of advertising that others use and intend to attract attention in their advertising. But we won't consider information used to identify or record customers or supporters, such as a list of customers or supporters, to be an advertising idea. Advertising material means any covered material that: ? is subject to copyright law; and ? others use and intend to attract attention in their advertising. Both Policies also contain a Field of Entertainment Limitation Endorsement ("FELE") which "changes [the insured's] Commercial General Liability Protection" and "reduces coverage." In relevant part, the FELE "reduces coverage" as follows: Field of Entertainment. We won't cover personal injury or advertising injury that results from the content of, or the advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment Business. Properties or Programs means any of your properties, products, programs, materials or other matter. Field of Entertainment Business includes the following; ? The creation, production, publication, distribution, exploitation, exhibition, advertising and publicizing of product or material in any and all media such as motion pictures of any kind and character, television programs, commercials or industrial or educational or training films, phonograph records, audio or video tapes, CDs or CD ROMs, computer on-line services or internet or Web site pages, cassettes or discs, electrical transcriptions, music in sheet or other form, live performance, books or other publications. ? The ownership, operation, maintenance or use of radio and television broadcasting stations. CATV systems, cinemas, stage productions with living actors, and any similar exhibition or broadcast media. ? The ownership, operation maintenance or use of merchandising programs, advertising or publicity material, characters or ideas: whether or not on your premises or in your possession at the time of the alleged offense. As referenced above, both Policies also insured against the occurrence of "bodily injury." The Policies define "bodily injury" to mean "any physical harm, including sickness or disease, to the physical health of other persons." The Policies include mental anguish, injury, or illness, and emotional distress in the definition of covered "bodily injuries." C. The Instant Action On February 5, 2003, Manzarek and DTI notified St. Paul of the Densmore Lawsuit. St. Paul responded by letter on February 18, 2003. That letter notified Manzarek and DTI that, although St. Paul was still investigating coverage issues, its preliminarily determination was that the Policies did not cover the Densmore Lawsuit. According to the complaint, St. Paul delivered this letter before it issued the DTI Policy or delivered a copy of it to its insureds. St. Paul did not issue the DTI Policy until February 19, 2003 - nearly two weeks after Manzarek and DTI tendered a copy of the Densmore Lawsuit to St. Paul. The complaint also alleges that St. Paul preliminarily denied coverage before it considered the language contained in either of the Policies. On March 5, 2003, St. Paul notified Manzarek and DTI that both Policies contained the FELE. St. Paul denied coverage and refused to defend the Densmore Lawsuit on that basis. On March 19, 2003, St. Paul reiterated the applicability of the FELE and notified Manzarek and DTI that the Policies did not obligate it to defend or indemnify the Densmore Lawsuit. Thereafter, Manzarek and DTI tendered the Courson Lawsuit to St. Paul. On May 6, 2003, St. Paul advised its insureds that the Policies did not provide coverage for the Courson Lawsuit. St. Paul therefore denied coverage and declined to defend the Courson Lawsuit based on its interpretation of the FELE. In the months that followed, Manzarek and DTI continued to demand a defense under the Policies and St. Paul persisted in its refusal to defend or indemnify its insureds. Manzarek and DTI filed this coverage and bad faith lawsuit against St. Paul in Los Angeles Superior Court approximately two years later. On April 5, 2006, Manzarek and DTI voluntarily amended their complaint. The amended complaint contained claims against St. Paul for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; and (3) declaratory relief. St. Paul removed the action to the United States District Court on April 6, 2006. On April 11, 2006, St. Paul filed a motion to dismiss the first amended complaint pursuant to Rule 12(B )(6) of the Federal Rules of Civil Procedure. The district court heard argument on St. Paul's motion to dismiss on May 15, 2006 and entered a two-line docket entry granting the motion to dismiss that same day. The docket entry by the district court states that "[t]he court GRANTS the motion. Defendants shall submit a proposed order." On May 18, 2006, St. Paul provided the district court with a proposed order granting the motion to dismiss with prejudice. The district court signed St. Paul's proposed order on May 19, 2006. The clerk entered the order on May 22, 2006. That order dismissed with prejudice Manzarek's and DTI's claims for breach of contract and breach of the implied covenant of good faith and fair dealing, holding that the FELE was conspicuous, plain, clear, and unambiguous. Consequently, the district court held that St. Paul owed Manzarek and DTI no duty to defend or indemnify against the claims in the Underlying Lawsuits. Additionally, the district court found that " mendment of Plaintiffs' First Amended Complaint would be futile because plaintiffs would be unable to allege facts that would alter these strictly legal determinations."
Manzarek and DTI appeal the district court's order granting the motion to dismiss. Manzarek and DTI contend that the district court erred by (1) holding that no duty to defend existed under the Policies; (2) dismissing their claim for breach of contract; and (3) dismissing their claim for breach of the implied covenant of good faith and fair dealing. Alternatively, Manzarek and DTI argue that the district court should have allowed them the opportunity to amend their complaint to state a viable claim for relief against St. Paul. Manzarek and DTI argue that the district court abused its discretion by not giving them a chance to amend.
II. Standard of Review
We review de novo the district court's decision to grant St. Paul's motion to dismiss under Federal Rule of Civil Procedure 12(B )(6). See Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (internal citation omitted). "When ruling on a motion to dismiss, we may ?generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.' " Id. at 899-900 (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)). We accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party. Id. at 900. We need not accept as true conclusory allegations that are contradicted by documents referred to in the complaint. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal citation omitted).
"Denial of leave to amend is reviewed for an abuse of discretion." Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). " ?Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.' " Id. (quoting Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991)).
III. Discussion
In this diversity case, we must apply California law when interpreting the Policies. See Aetna Cas. & Sur. Co., Inc. v. Centennial Ins. Co., 838 F.2d 346, 350 (9th Cir. 1988). Interpretation of insurance contracts under California law requires us to employ general principles of contract interpretation. MacKinnon v. Truck Ins. Exch., 73 P.3d 1205, 1212 (Cal. 2003); Safeco Ins. Co. of Am. v. Robert S., 28 P.3d 889, 893 (Cal. 2001). Under California law, we are to give effect to the 2982 MANZAREK v. ST. PAUL FIRE & MARINE INS. "mutual intention of the parties at the time the contract is formed." MacKinnon, 73 P.3d at 1213; see Cal. Civ. Code ? 1636.
Clear, explicit, and unambiguous contractual language governs. See Boghos v. Certain Underwriters at Lloyd's of London, 115 P.3d 68, 71 (Cal. 2005); Cal. Civ. Code ? 1638. In the event of an ambiguity, we must interpret contractual terms to "protect the objectively reasonable expectations of the insured." Boghos, 115 P.3d at 71 (internal quotation marks and citations omitted). "Only if these rules do not resolve a claimed ambiguity do we resort to the rule that ambiguities are to be resolved against the insurer." Id.
A. Breach of Contract
Manzarek and DTI assert that the district court erred by dismissing their claim for breach of contract with prejudice because the allegations in the Underlying Lawsuits triggered a contractual duty to defend. For the reasons set forth below, we agree.
1. Applicable Law
a. Scope of Duty to Defend
[1] Under California law, an insurer must defend its insured "if the underlying complaint alleges the insured's liability for damages potentially covered under the policy, or if the complaint might be amended to give rise to a liability that would be covered under the policy." Montrose Chem. Corp. v. Superior Court, 861 P.2d 1153, 1160 (Cal. 1993) (citation omitted).
The duty to defend is broader than the duty to indemnify. Id. at 1157. Even if no damages are awarded, the duty to defend may still exist. Id. " ?The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy.' " Id. (quoting Horace Mann Ins. Co. v. Barbara B., 846 P.2d 792, 795 (Cal. 1993)). "Any doubt as to whether the facts establish the existence of the defense duty must be resolved in the insured's favor." Montrose Chem. Corp., 861 P.2d at 1160. If any of the claims in the underlying complaint are covered, the insurer has a duty to defend the entire action. Horace Mann Ins. Co., 846 P.2d at 797-98. The court may consider facts outside the complaint " ?when they reveal a possibility that the claim may be covered by the policy.' " Id. at 795.
b. Enforceability of Coverage Limitations
[2] "nsurance coverage is interpreted broadly so as to afford the greatest possible protection to the insured, [whereas] exclusionary clauses are interpreted narrowly against the insurer." MacKinnon, 73 P.3d at 1213 (internal quotation marks and citation omitted) (bracketed text in original); see Mariscal v. Old Republic Life Ins. Co., 50 Cal. Rptr. 2d 224, 227 (Cal. Ct. App. 1996) (recognizing that "exclusions are strictly interpreted against the insurer"). An "exclusionary clause must be conspicuous, plain and clear."
Mackinnon, 73 P.3d at 1213 (internal quotation marks and citation omitted). "This rule applies with particular force when the coverage portion of the insurance policy would lead an insured to reasonably expect coverage for the claim purportedly excluded." Id. "The burden is on the insured to establish that the claim is within the basic scope of coverage and on the insurer to establish that the claim is specifically excluded." Id. "Coverage may be limited by a valid endorsement and, if a conflict exists between the main body of the policy and an endorsement, the endorsement prevails." Haynes v. Farmers Ins. Exch., 89 P.3d 381, 385 (Cal. 2004).
2. Analysis
The district court signed and entered St. Paul's proposed order granting St. Paul's motion to dismiss the claim for breach of contract. The order states that "[t]he FELE was suf- ficiently conspicuous" and notes that "n addition to being conspicuously referenced in the policy declarations and attached as a separate endorsement, the language of the FELE [was] plain and clear." The district court then concluded that based on the plain and clear language of the FELE, it was reasonable for St. Paul to believe its insureds understood the limiting effect of the FELE on advertising injury coverage under the Policies. Based on that conclusion, the district court dismissed the breach of contract claim with prejudice.
[3] The fundamental problem with the district court's decision is that it fails to apply the language of the FELE to the factual allegations contained in the complaints filed in the Underlying Lawsuits. The FELE excludes coverage for the "advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment Business." Contrary to the interpretation adopted by the district court, the definition of Field of Entertainment Business is not broad enough to cover the entirety of the allegations in the Underlying Lawsuits. In relevant part, the Policies define "Field of Entertainment Business" as follows:
The creation, production, publication, distribution, exploitation, exhibition, advertising and publicizing of product or material in any and all media such as motion pictures of any kind and character, television programs, commercials or industrial or educational or training films, phonograph records, audio or video tapes, CDs or CD ROMs, computer on-line services or internet or Web site pages, cassettes or discs, electrical transcriptions, music in sheet or other form, live performance, books or other publications. (Emphasis added).
[4] California law requires us to adopt a narrow construction of the FELE. With such narrow construction, the FELE would not exclude advertising injury coverage if, for example, Manzarek and DTI began distributing "The Door's Own" line of salad dressing.2 Advertising injury coverage for such a product would still exist because Manzarek and DTI would not necessarily publicize, distribute, exploit, exhibit, or advertise in media such as motion pictures, etc. For similar reasons, the FELE would not completely exclude advertising injury coverage if Manzarek and DTI began marketing a line of tshirts or electric guitars with The Doors logo or Morrison's likeness on them. Although marketing these products would undoubtedly expose Manzarek and DTI to a claim for advertising injury, Manzarek and DTI would still enjoy advertising injury coverage under the Policies.
[5] In this case, the Underlying Lawsuits allege that Manzarek and DTI marketed products and merchandise at their concerts and on The Doors official website. The Underlying Lawsuits, however, are silent about what type of products and merchandise that Manzarek and DTI produced and marketed.
For all St. Paul knew when it denied coverage, the products marketed by Manzarek and DTI included guitars, t-shirts, and perhaps (although we realize it is not likely) salad dressing bottles with The Doors logo and/or Morrison's likeness affixed to them. These allegations raised a potential for coverage under the Policies and, for that reason, the district court erred by summarily dismissing Manzarek's and DTI's breach of contract claim.
[6] Additionally, the district court erred by dismissing the breach of contract claim because the Underlying Lawsuits raised a potential for coverage under the "bodily injury" portion of the Policies. The Densmore Lawsuit contained an allegation that Manzarek's and DTI's actions caused damage to Densmore's "reputation and stature by causing people to believe that he was not, and is not, an integral and respected part of The Doors band, or is one member who easily can be replaced by another drummer." This allegation was sufficient to raise the potential of an award of mental anguish or emotional distress damages. For that additional reason, the district court erred by dismissing the breach of contract claim.
[7] Finally, the district court held that dismissal was appropriate because "ince the FELE was conspicuous, plain and clear, it was reasonable for St. Paul to believe the insured understood it." We also find this problematic, because we must take the allegations in the complaint as true. The complaint makes clear that St. Paul had not yet delivered or issued the DTI Policy to Manzarek and/or DTI when Manzarek and DTI demanded coverage under the Policies. The record is silent about when St. Paul delivered the Manzarek Policy. It should go without saying that an insured cannot be deemed to reasonably understand the terms of a policy he or she has not seen or fully comprehend the exclusionary language of a policy that has not yet been issued. In light of those facts, again under the deferential standard of review applicable to a motion to dismiss, it is far from clear that "it was reasonable for St. Paul to believe the insured understood" the impact of the FELE on advertising and personal injury coverage. Thus, it was error for the district court to adopt St. Paul's proposed order and dismiss the breach of contract claim.
B. Breach of the Implied Covenant of Good Faith and Fair Dealing
The entirety of the district court's analysis regarding its decision to dismiss Manzarek's and DTI's claim for breach of the implied covenant of good faith and fair dealing is encapsulated in the following sentence: "St. Paul did not breach the covenant of good faith and fair dealing in denying coverage or in declining to defend the Underlying Actions as a matter of law." This holding was in error.
[8] California law is clear, that without a breach of the insurance contract, there can be no breach of the implied cov- enant of good faith and fair dealing. Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 638-39 (Cal. 1995). In Waller, the California Supreme Court stated that:
It is clear that if there is no potential for coverage and, hence, no duty to defend under the terms of the policy, there can be no action for breach of the implied covenant of good faith and fair dealing because the covenant is based on the contractual relationship between the insured and the insurer. Id. at 639; see also Am. Med. Int'l, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 244 F.3d 715, 720 (9th Cir. 2001) ("Without a right to coverage, the Waller court concluded, there is no obligation the insurer may frustrate.").
[9] As discussed above, the district court erred by dismissing the claim for breach of contract. In light of our holding regarding the viability of that claim, the district court also erred by summarily dismissing the claim for breach of the implied covenant of good faith and fair dealing.
C. Leave to Amend
[10] The district court also abused its discretion by failing to allow Manzarek and DTI an opportunity to amend. "Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998) (internal quotation marks, brackets, and citation omitted). "The decision of whether to grant leave to amend nevertheless remains within the discretion of the district court, which may deny leave to amend due to ?undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.' " Leadsinger, Inc. v. BMG Music Publ'g., 512 F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). "An outright refusal to grant leave to amend without a justifying reason is, however, an abuse of discretion." Id. (internal citation omitted).
[11] Here, the district court abused its discretion, because Manzarek and DTI only learned that the district court would not allow them an opportunity to remedy any perceived defects in the complaint after St. Paul submitted its proposed order, and the district court summarily signed and entered it.
The district court never explained at a hearing that it intended to dismiss the complaint with prejudice. The district court's docket entry (granting the motion to dismiss) also did not reflect that the dismissal would be without leave to amend.
Though the district court signed an order, stating that "mendment of Plaintiffs' First Amended Complaint would be futile because plaintiffs would be unable to allege facts that would alter these strictly legal determinations," it never allowed Manzarek and DTI a chance to explain how they could amend the complaint if allowed to do so. Indeed, according to the record before us on appeal, it appears that the district court did not even consider the viability of any potential amendments to the complaint before dismissing the complaint with prejudice.
At the appellate hearing, Manzarek's and DTI's counsel suggested that Manzarek and DTI could have made several factual amendments and clarifications to undermine St. Paul's argument that the FELE excluded all potential for coverage under the Policies. Manzarek and DTI argued that they might have amended the complaint (1) to identify the products that they marketed to make clear that the FELE did not exclude advertising injury coverage for those products; (2) to allege that they were not told of the applicability of the FELE at the time they purchased the Policies; (3) to allege that St. Paul misrepresented the terms of the Policies at the time they purchased the Policies; or (4) to allege that the FELE makes the Policies unconscionable. We express no view on the viability of these potential amendments or whether the complaint can stand without amendment. The district court should have the opportunity to reconsider its ruling on the original complaint and to consider the proposed amendments in the first instance.
[12] This record does not evidence any other reason to deny leave to amend. There was no indication of undue delay, bad faith, or dilatory motive on the part of Manzarek or DTI. See Leadsinger, Inc., 512 F.3d at 532. There was also no showing of prejudice to St. Paul by allowing an amendment. Id.
Instead, the opposite was true. The action had been in federal court for less than two months when the district court dismissed the claims with prejudice. Trial was not fast approaching.
In summary, nothing in the record justified the district court's decision to enter dismissal with prejudice. The district court summarily signed and entered a written order proposed by St. Paul including such relief. The district court therefore abused its discretion by refusing to allow Manzarek and DTI an opportunity to amend their complaint before entering final judgment against them.
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www.ca9.uscourts.gov/ca9/newopinions.nsf /0A9AC18F009C3CED882574170057CFE6/$file/0655936.pdf?openelement
Outcome: We therefore reverse and remand the district court?s order granting St. Paul?s motion to dismiss. Taking the allegations in the complaint as true, Manzarek and DTI stated a viable claim for breach of contract against St. Paul. As a result, the district court erred by dismissing Manzarek?s and DTI?s claims for breach of contract and breach of the implied covenant of good faith and fair dealing. Lastly, the district court abused its discretion by failing to allow Manzarek and DTI the opportunity to amend.
REVERSED.
Insurance Case Bulletin Gordon & Rees, LLP
New Development In Insurance Case Law
Manzarek v. St. Paul Fire Marine Insurance Company (9th Cir. 2008) ___F.3d___, 08 C.D.O.S. 3333
Allegations That Defendant Marketed Products And Merchandise Sufficient To Give Rise To Duty To Defend Under Advertising Injury Provisions In Policy
The United States Court of Appeal for the Ninth Circuit held that the District Court for the Central District of California applied an unduly broad reading of an exclusion clause when it concluded that the insurer was not liable to provide coverage or defense against claims for advertising injury. Raymond Manzarek (“Manzarek”) and Doors Touring, Inc. (“DTI”) filed suit against their insurer, St. Paul Fire & Marine Insurance Company (“St. Paul”), alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory relief arising from St. Paul’s refusal to defend and indemnify them in two lawsuits filed against them (“Underlying Lawsuits”). Manzarek is a founding member of the classic rock group The Doors. John Densmore, the former drummer for The Doors, filed one of the Underlying Lawsuits (“Densmore Lawsuit”) against Manzarek. The parents of Jim Morrison, a former vocalist for The Doors, and the parents of Pamela Courson, Morrison’s late wife, together filed the other Underlying Lawsuit (“Courson Lawsuit”) against Manzarek.
Both Underlying Lawsuits alleged that Manzarek and members of his band were liable for infringing on The Doors name, trademark, and logo in conjunction with their planned national and international tours. Both Underlying Lawsuits also included allegations against Manzarek and DTI for the improper use of The Doors logo in conjunction with the marketing of products and merchandise. Additionally, the Densmore Lawsuit alleged that the breaches by Manzarek and his band caused Densmore to suffer economic damages as well as damage to his reputation and stature.
St. Paul insured Manzarek under a commercial general liability policy, effective May 24, 2002 to May 24, 2003 (“Manzarek Policy.”) Although effective on May 24, 2002, St. Paul did not issue the Manzarek Policy until October 3, 2002. St. Paul also insured Manzarek, DTI, and Robert Krieger under another commercial general liability policy, effective December 2002 to December 30, 2003 (“DTI Policy”). St. Paul did not issue the DTI Policy until February 19, 2003.
Both the Manzarek Policy and the DTI Policy insured against the occurrence of “bodily injury,” “property damage,” “personal injury,” and “advertising injury.” Both Policies also contained a Field of Entertainment Limitation Endorsement (“FELE”) which excluded coverage for “personal injury or advertising injury that results from the content of, or the advertising or publicizing for, any Properties or Programs which are within your Field of Entertainment.” The Policies defined “Field of Entertainment Business” to include: “The creation, production, publication, distribution, exploitation, exhibition, advertising and publicizing of product or material in any and all media such as motion pictures of any kind and character, television programs, commercials or industrial or educational or training films, phonograph records, audio or video tapes, CDs or CD ROMs, computer on-line services or internet or Web site pages, cassettes or discs, electrical transcriptions, music in sheet or other form, live performance, books or other publications.”
St. Paul denied coverage and declined to defend Manzarek and DTI for both Underlying Lawsuits based on its interpretation of the FELE. Approximately two years later, Manzarek and DTI filed its coverage and bad faith lawsuit against St. Paul in the Los Angeles Superior Court. St. Paul removed the action to the United States District Court.
The District Court granted St. Paul’s motion to dismiss the first amended complaint, and entered an Order, prepared by St. Paul, which dismissed the Manzarek and DTI claims, holding that the FELE was conspicuous, plain, clear, and unambiguous. The District Court further held that St. Paul owed Manzarek and DTI no duty to defend or indemnify the claims in the Underlying Lawsuits. The District Court also refused to permit Manzarek or DTI to amend their complaint because “plaintiffs would be unable to allege facts that would alter these strictly legal determinations.”
The Ninth Circuit reviewed the District Court’s decision to grant St. Paul’s motion to dismiss de novo, and reversed the decision of the District Court. In its opinion, the Ninth Circuit restated and applied well settled principles under California law that an insurer must defend if the underlying complaint alleges potentially covered claims under the policy, that exclusionary clauses are interpreted narrowly against the insurer, and that exclusionary clauses must be conspicuous, plain, and clear.
The Ninth Circuit found the District Court’s decision to be erroneous for three reasons. First, the District Court failed to apply the language of the FELE to the factual allegations contained in the Underlying Lawsuit complaints. The Ninth Circuit found that the definition of the FELE was not broad enough to cover the entirety of the allegations. The Policies defined “Field of Entertainment Business” as excluding specific types of media. The Ninth Circuit held that because the Underlying Complaints were silent as to what type of products and merchandise Manzarek and DTI produced and marketed, such products may not qualify as “media” within the definition of the FELE. For example, the court stated that if the products at issue were The Door’s Own line of salad dressing, t-shirts or guitars, such products would not be “media” and fall outside the definition of the FELE. The Ninth Circuit accordingly held that because the allegations raised a potential for coverage, the District Court erred in granting St. Paul’s motion to dismiss.
Second, the Underlying Complaints contained an allegation of “bodily injury” and, accordingly, there was a potential for coverage under the “bodily injury” portion of the Policies. The Policies’ definition of “bodily injury” included mental anguish and emotional distress. The Ninth Circuit held that the Densmore Lawsuit included allegations of damage to Densmore’s reputation, which was sufficient to raise the potential of an award of mental anguish or emotional distress damages.
Third, the Ninth Circuit held that the FELE was not reasonably understood by the insureds. The Court noted that St. Paul had not yet delivered or issued the DTI Policy to Manzarek or DTI when they demanded coverage under the Policies. Based on this fact, the Court held that an insured cannot be deemed to reasonably understand the terms of the policy he has not seen or fully comprehend the exclusionary language of a policy that has not yet been issued.
The Court also found that the District Court erred in dismissing the claim of breach of the implied covenant of good faith and fair dealing. Because the Court found that Manzarek and DTI did indeed have a viable claim for breach of contract against St. Paul, the Court reasoned that Manzarek and DTI may also have a viable claim for breach of the implied covenant of good faith and fair dealing because such claim is based on the contractual relationship between the insured and the insurer.
Finally, the Ninth Circuit found that the District Court abused its discretion in denying Manzarek and DTI an opportunity to amend the complaint. The Court noted that Manzarek and DTI’s counsel suggested that several factual amendments and clarifications could be made to undermine St. Paul’s argument that the FELE excluded all potential for coverage under the Policies. Because the District Court did not give Manzarek and DTI an opportunity to explain how they could amend the complaint, the complaint should not have been dismissed with prejudice.
Click here for opinion. www.ca9.uscourts.gov/ca9/newopini....pdf?openelement
This opinion is not final. It may be depublished, modified on rehearing, or review could be granted. This events would render this decision unavailable for use as legal authority.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:16:11 GMT
An interesting little side note regarding the trial is the December 2003 visit by The Doors of the 21st century to 'celebrate' Jim's 60th birthday. According to Manzarek in media interviews this was the first ever visit to Paris the Doors had ever made as a unit even without Jim. Conveniently forgetting the May 1st 1972 Doors concert at the Olympia and the non visit the three Doors made to Pere Lachaise. Also the band played in Paris in 1978 to promote the release of "An American Prayer. This was brought up at trial by the Morrison family who seemed peeved that their son was being used to advertise a band. Infos Young people 2004 07/07/2004 "The Doors never played Paris, even with Jim," says the ever ebullient Manzarek. "This is the first official French gig. We'll go see Jim on the 8th, have a little happy birthday for him, and then the 9th is 'L.A. Woman' in Paris." The "L.A. Woman" performance will actually be premiered Aug. 24 in a concert at Jones Beach on Long Island, a show that will be shot for a DVD release, and will be the centerpiece of other coming concerts. "We'll be doing 'L.A. Woman' from top to bottom in honor of Jim's 60th birthday," Manzarek says. "We never got to play it live. We recorded it, then Jim went to Paris and never came back. But now we get to do the tour that never happened." Densmore, who believes it was inappropriate for the fellow survivors to hire a new singer and use the Doors name, is no more supportive of the Paris plans. "I feel kind of like the French felt toward us when we bombed Iraq about the pseudo-Doors playing Paris and traipsing around Jim's grave for publicity," the drummer says. While Densmore failed to get an injunction to stop the group from using the Doors as part of its name immediately, his actions did result in a court ruling requiring the group to be clearly billed as "the Doors of the 21st century," and his suit against them is still pending. Manzarek says that he and Krieger have been writing new songs with various lyricists, including Astbury and poets Michael McClure and Jim Carroll, and have been talking to both Henry Rollins and X's John Doe about contributing as well, with plans to record an album after finishing the European tour. "We'll keep Jim's poet tradition alive," Manzarek says. "This is not a tribute band. We are playing 20th century Doors songs now, but there will be 21st century Doors music coming." Densmore, who has a jazz album due in the fall called "Tribaljazz," is happy to hear about the new music but not the old appellation. "I've known they might write new stuff," he says. "I don't care, except I'm trying to get the word 'Doors' eliminated." Source: whtq.com/features/doors_visit_jim.htmlWhile Densmore failed to get an injunction to stop the group from using the Doors as part of its name immediately, his actions did result in a court ruling requiring the group to be clearly billed as "the Doors of the 21st century," and his suit against them is still pending. JD of course managed this small victory which resulted in the following advertising of the gig. Reduced: 85% of original size [ 600 x 454 ] - Click to view full image Clearly indicating that this was a Doors of the 21st century gig and in no way a Doors gig. I personally saw one of these posters in the Bastille Metro and you could see the Doors bit from a couple of hundred feet. A ticket for the gig. The Morrison family made a specific objection to Krieger/Manzarek visiting Jim's grave and here we see the part of the Defence Objection document that deals with this specific section. Defendants’ Objections To Proposed Statement Of Decision And Specification Of Issues Not Addressed Therein Filed May 24 2005 Superior Court Of The State Of California For The County Of Los Angeles – Central District John Densmore, Etc... Plaintiff, 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 general partnerships, Cross-Complainants, v. John Densmore, an individual, Cross-Defendant. Case No. BC 289730 (Consolidated with Case No. 294495 Page 28 Section D., 1 (v) Defendants Cannot Be Punished For Visiting Morrison’s Grave The Estates complained that Defendants visited Jim Morrison’s grave while they were In Paris, on December 8, 2003. But so what? This activity is most obviously not actionable under Section 3344.1 which protects against commercial use of identity, i.e. (1) use on or in products, merchandise, or goods; and (2) use in “speech which does no more than propose a commercial transaction.” Bolger v. Young Drug Products, 463, U.S. 60, 66, 103, S. Ct,. 2875 (1983). Defendants’ visit to Morrison’s grave was not a commercial use of Jim Morrison’s identity. It was a trip to a cemetery. Defendants are baffled as to why the Estates would think this activity is illegal. Furthermore, Jim Morrison’s grave is located in Paris, France. Section 3344.1 limits the application of California’s post-mortem right of publicity statue to “acts occurring directly in this state.” Cal. Civ. Code 3344.1(n). “The only reasonable interpretation of this provision from its plain language is that it applies only to claims that arise out of acts occurring in California. The provision…..addresses the reach of the statute’s coverage.” Cairns v. Franklin Mint Co., 120 F. Supp. 2d 880, 883, (C.D. Cal. 2000), aff’d, 292 F.3d 1139, 1147 (9th Cir. 2002). So even if Defendants’ activities in France (or England or Japan, for that matter) did somehow otherwise violate Section 3344.1, they would still not be actionable because they did not occur directly in this state. This crucial point should be borne in mind with respect to ever single alleged action by Defendants (including concerts) outside of California that the Estates, in hindsight, claim violated Morrison’s post mortem right of publicity. In any event, the fact that Defendants paid their respects at the burial site of a departed friend and fellow artist did not somehow become a commercial use of Morrison’s identity simply because reporters and/or photographers may have followed them to the scene to document the occurrence. “Publication of matters in the public interest, which rests on the right of the public to know, and the freedom of the press to tell it, cannot ordinarily be actionable.” Eastwood v. Superior Court (National Enquirer, Inc.) 149 Cal. App. 3d 409, 421 198 Cal. Rptr. 342 (1983). In fact, Section 3344.1 categorically exempts from liability the “use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign…” Cal. Civ. Code 3344.1 (a) (2). Here, “the fact that the use of the name was descriptive and related to the constitutionally protected activity of news gathering and dissemination and not merely commercial exploitation compels the conclusion that the activity is constitutionally protected.” New Kids on the Block v. News America Pub., Inc., 745 F. Supp. 1540, 1546 (C.D. Cal. 1990). Finally, the Estates’ evidence failed to establish that the Defendants’ visit to the grave site was “directly connected” to a commercial purpose, as required by California law. Cal. Civ. Code 3344.1 (k) see, e.g. Johnson v. Harcourt, Brace, Jovanovich, Inc., 43 Cal. App. 3d 880, 895, 118 Cal. Rptr. 370 (1974) (reprint of article about plaintiff in book not directly connected to commercial purpose.) ##### I have to point out that I was there that day and although had no interest in the Manzarek/Krieger visit which I did not see as I went to the La Ren bar and had a pint when it was taking place. But I did see the preparations and was at the grave just before the arrival and saw that the media was well informed of the visit as they were setting up when I was there. Also it was well known what time the band was to visit as I was told by several band fans when the visit was due to take place and know personally many who were there and told me what transpired. In the morning I visited the grave twice and talked to fans and friends and there was a pile of fence sections laid a few yards away. They were put up around lunch time and after that remained in place to this day making it impossible to stand beside the grave and chat as I had been doing that morning. The idea that this was some kind of spontaneous visit is sadly not sustainable as the media was as well informed as the fans to create maximum impact for the visit. This is the only part of all of this that I have personal knowledge of and as a witness to this event I would have said unequivocally that the visit was pre planned as a photo opportunity and would have stood up in court and said so if asked to.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:16:55 GMT
Money must have been tight around this time as The Doors as well as suing each other sued the Wolfgang Vault site and amazingly a Fresno club for playing Doors songs without a license. I must be careful as I have hummed Doors tunes to myself in public buildings. Who knows who is watching? Who is that Hagrid lookalike with the field glasses? Santana & Doors Settle Lawsuit With Wolfgang's Vault Owner Rock stars settle with music archive The 1960s-era rock band the Doors and musician Carlos Santana reached a tentative settlement of claims accusing a music archive of violating their rights by selling merchandise and offering free online recordings. The musicians and their licensing companies, including Sony BMG Music Entertainment, reached the proposed agreement last week with the Bill Graham Archive and its chief executive, William Sagan, according to a filing in federal court in San Jose. LA Times August 26, 2008 WOLFGANG'S VAULT: FRIVOLOUS LAWSUIT Last Monday, December 18, 2006, surviving members of the Grateful Dead, Led Zeppelin, The Doors and Santana filed a complaint in federal court in San Francisco against Wolfgang's Vault, an independent, small Bay Area website to stop offering music fans access to a treasure trove of rock memorabilia and recordings. The website, www.wolfgangsvault.com, launched three years ago after its owner, Bill Sagan, purchased the archives of the late, legendary concert promoter Bill Graham from Clear Channel Communications. (Wolfgang was Bill Graham's given name.) The archives included vintage posters, handbills, tickets, postcards, photography, audio and video recordings from Graham's historic Fillmore concerts (which he owned), as well as live recordings of those concerts (and others) which, until the website's launch, had gone unheard by music fans for decades. The website does not charge its visitors and offers concert recordings as free streams; various memorabilia are also available for sale. "The lawsuit has nothing to do with artists' rights and everything to do with others in the industry seeking to seize profits and shakedown Wolfgang's Vault and its owner, Bill Sagan," said Michael Elkin, partner with the international law firm, Thelen Reid Brown Raysman & Steiner LLP, representatives of Wolfgang's Vault in this suit. "We believe while this lawsuit will attract a lot of headlines it has no basis or fact in law whatsoever. Wolfgang's Vault bought all of this decades' old material legally, paid their rightful owner and own all the rights necessary to conduct its business. We fully expect to be victorious in the court of law. " "The industry is never happy when fans can get music for free. Yet millions of dollars were spent for Mr. Graham's archive, and that purchase price included not just the photography, posters and handbills but also the recordings, as invaluable and as irreplaceable as they all are. Furthermore the purchase allowed the company the rights to open the archive as they deemed fit. Wolfgang's Vault is determined that the vault remains open, and intends to do everything in its power to keep it that way," added Elkin. Wolfgang’s Vault Press Relations:NEW YORK, NY (December 26, 2006) -- Music group members sue Fresno club for playing tunes without license. By John Ellis / The Fresno Bee Monday, May 29, 2006 The Doors are suing Club Fred. The three surviving members of the famed '60s music group, as well as the parents of late lead singer Jim Morrison and his late common-law wife, Pamela Courson, are suing Ernesto Vera, owner of the popular Fresno nightclub, 1426 N. Van Ness Ave., for playing four of its compositions without permission. The songs are "Riders on the Storm," "LA Woman," "Love Me Two Times" and "Roadhouse Blues." Also suing Vera is J. Albert & Son for the club's playing of AC/DC's "Back In Black" without permission. J. Albert & Son is a music publishing company that is the worldwide publisher of AC/DC's copyrights. The suit seeks between $750 and $30,000 for each of the five songs played without permission. All the plaintiffs are registered with the American Society of Composers, Authors and Publishers, the performing rights organization better known as ASCAP. The lawsuit, filed in federal court in Fresno, claims that despite numerous letters and other contacts by ASCAP, Vera continued to play the copyrighted music without permission. "Regrettably, we are talking about an intangible right," said Richard Reimer, ASCAP's in-house counsel. "It's not a CD or sheet music [where royalties can be collected at the time of sale]. It becomes an enforcement issue." Vera could not be reached to comment. This is not the first time this year a Fresno club has run afoul of a performing rights organization for playing copyrighted music without permission. Broadcast Music Inc., a counterpart to ASCAP better known as BMI, sued Porky's for playing songs written by Van Morrison, Dwight Yoakam and others without paying royalties. The north Fresno restaurant has since closed. Reimer said ASCAP — which represents more than 250,000 members, including songwriters, composers and music publishers — files in excess of 100 copyright infringement suits each year, but it is the organization's avenue of last resort after writing letters and making phone calls in an attempt to get establishments to purchase music licenses. In the case of Club Fred, he said, the annual fee is less than $1,500. ASCAP hired an independent investigator to enter Club Fred and write down the titles of the songs being played. The lawsuit lists March 17 and 18 as the dates the investigator noted the music being played without permission. It was a combination of live and jukebox music, Reimer said. The jukebox music required a license because there was a cover charge. By charging for entry, Reimer said, Club Fred was benefitting monetarily from the jukebox.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:20:44 GMT
Finally seemingly a lifetime after it all began Manzarek/Krieger had played their last throw of the dice and the lawsuit was at last over. A couple of years of appeals all for nothing as the California Supreme Court concluded that their judgement essentially was no different from Greg Alarcon back in 2005. The fallout from the trial exacerbated by the ill feeling generated by the appeal process all added together to divide Doors fans further. A pointless spat about the name that should have been settled with a few ounces of common sense and mutual trust and understanding had destroyed The Doors on line community that had flourished for so long leaving nothing but ruins. A few lawyers got richer, the drummer could look smugger whilst the guitar player and keyboard player would have to buy a slightly less expensive brand of caviar to feed ther cat but what did 'The Doors' gain from this. As the 40th anniversary of Jim Morrison's death approaches it is fair to wonder just how well the memory of the legendary lead singer and the History of this great band has been served by the three surviving members of the band?
here is a report that was published on the LA courts website as an Unpublished Opinions of the California Courts of Appeal posted for 60 days solely as public information about actions taken by the Courts of Appeal. This is another very long document that is well worth Doors fans taking the time to read as it gives some very interesting and important insight into the trial process.
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Filed 5/29/08 Densmore v. Manzarek CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(B ). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
JOHN DENSMORE, Plaintiff and Respondent, v.RAYMOND MANZAREK et al., Defendants and Appellants. B186036 (Los Angeles County Super. Ct. No. BC 289730) COLUMBUS COURSON et al., Plaintiffs and Respondents, v.RAYMOND MANZAREK et al., Defendants and Appellants. B186037 (Los Angeles County Super. Ct. No. BC 294495) JOHN DENSMORE et al., Plaintiffs and Respondents, v.RAYMOND MANZAREK et al., Defendants and Appellants. B188708 (Los Angeles County Super. Ct. No. BC 294495) APPEAL from the judgments of the Superior Court of Los Angeles County, Gregory W. Alarcon, Judge. Affirmed. Greines, Martin, Stein & Richland, Irving H. Greines, Marc J. Poster, Jens B. Koepke; Lavely & Singer, Martin D. Singer, William J. Briggs II, and Henry L. Self III for Defendants and Appellants. Mandel, Norwood & Grant, S. Jerome Mandel and Lilly Lewis for Plaintiffs and Respondents John Densmore, Pearl M. Courson and Columbus Courson. Hinojosa & Wallet and Jeffrey Forer for Plaintiffs and Respondents George Morrison and Clara Morrison.
* * * * * *
The trial court issued a permanent injunction enjoining appellants Raymond Manzarek and Robert Krieger from holding themselves out as the musical band The Doors. The trial court also ordered appellants to pay respondent John Densmore $82,274 and to pay the sum of $3.2 million to a partnership consisting of Densmore, respondents Columbus and Pearl M. Courson and George and Clara Morrison, and appellants. We affirm.
FACTS
1. The Doors, 1965-1971 Three young men met in a meditation class in Los Angeles in 1965. They were Densmore, Krieger and Manzarek; Manzarek knew a young man named Jim Morrison. Manzarek suggested that the four of them should form a band, which they all agreed to do. They began playing in the garage of Manzarek’s parents’ home in Manhattan Beach. Densmore played the drums, Manzarek the keyboard, Krieger the guitar and Morrison was the vocalist.
According to Densmore, The Doors, as the band became known, was rooted in the protest movements of the 1960’s. When asked at trial if the band had a “social philosophy,” Densmore put it this way: “Just that we were all together. A band of four brothers completely equal. And we hoped we could sort of level the playing field for everyone else out there. It was a pipe dream. But we were trying to be socially conscious.” In four years, the principle of unanimity would be written into the first partnership agreement.
The Doors, as a rock-and-roll band, rose rapidly to great heights of success. In 1966, The Doors signed a six-album deal with Elektra records that would include such hits as “Light My Fire,” “L.A. Woman” and “Riders on the Storm.” Morrison played a pivotal role in the growing fame of The Doors. According to Nigel Williamson, a British critic and writer, “. . . the musical vision and the power of ‘The Doors’ came specifically from Jim Morrison. I’m not denying the contribution that the other three musicians in the group made. But I think without Jim Morrison there would not have been a group as we know ‘The Doors’ to have been. The music would not have existed in that shape or form.” In 1969, the four men executed what the parties refer to as the “DMC Agreement,” standing for the “Doors Music Company” agreement, which provided among other things that the “management and control of the partnership business shall be determined by unanimous agreement of all partners.”
In November 1970, the DMC Agreement was amended to provide that no agreement, license or other document “respecting the partnership shall be binding upon the partnership unless signed by each and every member of the partnership.” This amendment was spawned by a violent disagreement between Morrison, on the one hand, and the other three partners, on the other, over doing a Buick commercial using The Doors’ piece “Light My Fire.” While the three partners had agreed to the commercial, Morrison vehemently disagreed and the commercial was not done.
A second agreement, executed in 1971 prior to Morrison’s departure in March 1971 to Paris, but effective as of January 1, 1966, entitled “GENERAL PARTNERSHIP AGREEMENT,” which the parties refer to as the “Old Doors Agreement,” prohibited the partners from entering into agreements without prior written consent of all of the partners. Both the DMC Agreement and Old Doors Agreement provided for the dissolution of the partnership upon the death of any partner. On March 11, 1971, prior to Morrison’s departure, the Old Doors Agreement was amended to provide that upon the termination or dissolution of the partnership other than by the death of any partner, none of the partners “shall have the right to use the name ‘The Doors’ for phonograph record purposes or in connection with personal appearances.”
Morrison died in Paris in July 1971. He left his property to his wife, Pamela Courson.
2. The New Doors Partnership, 1971-2003 In October 1971, Densmore, Manzarek and Krieger entered into a new partnership agreement that the parties refer to as the “New Doors Agreement.” (Pamela Courson was not a party to the New Doors Agreement.) This agreement duplicated the provisions of the DMC and Old Doors Agreements and it also contained the following, which duplicated the March 11, 1971 amendment to the Old Doors Agreement: “Notwithstanding anything to the contrary contained herein, upon the dissolution and/or termination of the Partnership, other than by reason of the death of any of the Partners, none of the Partners shall have the right to use the name ‘THE DOORS’ for phonograph record purposes or in connection with personal appearances.” The New Doors Agreement could be terminated by 30 days’ written notice.
Pamela Courson died in 1974. Her parents, Pearl and Columbus Courson, and Morrison’s parents, Clara and George Morrison, resolved their differences and agreed to share equally in Morrison’s interest in The Doors. The parties refer to the parents collectively as the “Estates” and we follow that usage.
The fortunes of The Doors after Morrison’s death were mixed. On the one hand, the remaining three were not able to generate new successes without Morrison; two albums produced after Morrison’s death did only moderately well, according to Densmore, “[n]othing like the original ‘Doors.’ ” No more albums were produced because, in Densmore’s words, “. . . we realized without Jim, what were we doing? He was the soul of the band.” The partnership cancelled the recording deal it had with Elektra. With three exceptions, the trio never performed again together as The Doors. These occasions came in 1978 when they created an album performed to poetry Morrison had recorded; in 1992 when The Doors was inducted into the Rock and Roll Hall of Fame; and in 2000 when the trio performed as The Doors for a VH1 cable channel production.
As respondents put it, The Doors endured “not as a performing band, but as a musical legacy.” Merchandising and album sales of The Doors with Morrison flourished. Densmore, Manzarek, Krieger and the Estates shared in these profits and filed partnership tax returns. The Doors, as it existed prior to Morrison’s death, continued in the public eye when Apocalypse Now (Zoetrope Studios) was released in 1979, which opened with the song “The End,” and with the release of Oliver Stone’s film The Doors (Tri-Star Pictures) in the early 1990’s, with Val Kilmer playing Morrison. Forrest Gump (Paramount Pictures 1994) played three or four Doors songs, which were sold to the movie production by the partnership for several million dollars. Merchandising deals involving The Doors also generated fees in the millions.
Because of these very handsome returns, requests for permission to use The Doors in advertising proved to be tempting, at least as far as Manzarek was concerned. In 2001 or 2002, The Doors received a $15 million offer from Cadillac to use a Doors hit in a sales campaign. Manzarek and the Estates were in favor of accepting it, Krieger was on the fence and Densmore was opposed because it was a Doors tradition not to do commercials. (Between 1965 and 2002, The Doors participated in only one commercial; it was for a tire company in Britain.) Morrison had been adamant against doing commercials and Densmore wanted to honor Morrison’s memory. The offer was not accepted. The same fate befell a multimillion-dollar offer made by Apple Computer, and for the same reason, at least as far as Densmore was concerned. In July 2002, an article appeared in the magazine The Nation in which Densmore was quoted as expressing philosophical objections to the use of rock music in commercials. The failed Cadillac and Apple commercials, and The Nation article, formed the basis of Manzarek’s and Krieger’s eventual cross-complaint against Densmore in which they alleged that Densmore’s conduct was unreasonable and capricious and a breach of his fiduciary obligations toward his two partners.
3. The Breakup, 2002-2003
About a year after the Cadillac offer, Harley-Davidson invited The Doors to give a rock concert in Fontana, California, on Labor Day 2002. The occasion was a celebration of the manufacturer’s 100th anniversary; Harley-Davidson offered the group $150,000 for a two-hour concert. The trio, including Densmore, were interested in doing this concert and plans went ahead with Ian Astbury, the singer from The Cult, as the vocalist. Eventually, however, Densmore decided that his health was not up to it and he opted not to participate; Stewart Copeland from The Police appeared in his place. The concert took place without Densmore but with his consent.
Within days after the Fontana concert, Densmore read in Billboard magazine, a music industry publication, that Manzarek, Krieger, Copeland and Astbury had appeared, after the Fontana concert, at another Harley-Davidson concert in Canada. The first paragraph of the article stated: “Police drummer Stewart Copeland and Cult vocalist Ian Astbury (singing the late Jim Morrison’s parts) weren’t just temporary additions to the Doors’ lineup for last weekend’s show in Fontana, Calif. As Doors keyboardist Ray Manzarek tells Billboard.com, ‘Stewart is drumming from here on out. Ian is singing from here on out. We’re not doing a TV show. We’re playing live music. This is the new Doors lineup for the 21st century.”
Densmore was surprised, hurt and angry after he read this. Neither Manzarek nor Krieger had ever told him that there would be “a new lineup” for the 21st century or another concert in Canada.
Within a month or so after this, Krieger called Densmore and said that they wanted to go on a tour, and he invited Densmore to go with them. Densmore declined the invitation, but said that they should do a tour, as long as they made it clear that “there is a big difference between your new band and our classic ‘Doors’ band.” Densmore definitely did not think that the band composed of Manzarek, Krieger, Stewart and Astbury were The Doors. Densmore told Krieger that they should modify The Doors by calling it “The New Doors,” as an example, and that use of The Doors logo, which they had guarded jealously over the years, was strictly out.
Densmore had several telephone conversations with Krieger along the foregoing lines. At some point during these conversations, the two men discussed using the titles “The 21st Century Doors” or “The Doors of the 21st Century.” Densmore thought the title to be a mouthful and questionable since they were all getting on in years and might not see much of the 21st century, but he voiced no objection to these titles.
Ultimately, Krieger professed to agree to Densmore’s demands. Densmore had no reason to doubt Krieger’s sincerity; they had been friends for many years.
In January 2003, Densmore began getting calls from friends congratulating him on The Doors getting back together; the impetus for this appears to have been a billboard at the Palm Hotel announcing a performance by The Doors on January 19, 2003. Densmore also began to see advertisements. One in the Los Angeles Times caught his eye; it was an ad for a concert at the Universal Amphitheatre in Los Angeles scheduled for February 7, 2003. The first line of the ad states, “Witness Rock & Roll History”; this line is followed by “The Doors” and The Doors logo; in small print under the logo is “21st Century” and “Live”; and Manzarek, Astbury, Krieger and Copeland are shown as a group. Changes to The Doors website, which referred to the 21st century band, and advertisements along the lines of the Los Angeles Times ad continued, much to Densmore’s concern and dissatisfaction.
When asked at trial whether the Los Angeles Times ad represented what Densmore had had in mind when he discussed “21st Century Doors” with Krieger, Densmore testified: “Absolutely not. This infuriated me. I couldn’t believe that the modifier ‘21st Century’ is about a tenth the size of the word ‘Doors.’ And the word ‘Live’ under it implies 21st century live tour starring this band, ‘The Doors.’ ”
Densmore had three telephone conversations with Krieger after he saw the Los Angeles Times ad. Densmore was angry; he told Krieger they were using The Doors logo, the modifier “21st Century” was too small, and it was not clear that this was a new band. Krieger’s response was that that’s the way they had to do it “if we want to play big concerts.” Krieger suggested minor changes that did not satisfy Densmore.
On March 19, 2003, Densmore wrote Manzarek and Krieger, stating that he was terminating the New Doors Agreement of 1971. Under the terms of that agreement, this precluded use of The Doors name; nevertheless the band composed of Manzarek, Krieger and Astbury continued to appear as The Doors or as The Doors of the 21st Century and display The Doors logo.
4. Appellants’ Band, 2003-2004
Manzarek, Krieger and Astbury appeared and performed on three nationally televised shows in January and February 2003.
After the February 7, 2003 concert in Los Angeles, the band composed of Manzarek, Krieger, and Astbury performed more than 65 concerts in approximately two years. The advertisements for these concerts used the word “Doors” in various permutations, and took differing approaches to the modifier “of the 21st Century.” The trial court found that in approximately 30 concerts performed during this period, the image of Jim Morrison was displayed to the audience from 30 to 90 seconds at the inception of the concert. Morrison’s voice singing Doors songs was used in advertising for the band in several cities on the tour. Merchandising used the word “Doors” and words and phrases associated with Morrison.
The trial court found in its statement of decision that these concerts grossed more than $8 million and generated more than $2.7 million in profits; these findings were supplanted by a stipulation, entered into after the trial, that the net profits were $3.2 million. No part of these earnings was ever transmitted to Densmore or the Estates. The proceeds all went to Doors Touring, Inc., the band’s “loan-out” corporation.
PROCEDURAL HISTORY
1. The Complaints and the Cross-complaint
Densmore filed his action on February 4, 2003, three days before the band’s first major concert in Los Angeles. The complaint alleged six causes of action. The first cause of action set forth alleged violations of the Lanham Act (15 U.S.C. § 1125©(1)) in that the defendants (Manzarek, Krieger, Astbury and Copeland) threatened to perform as The Doors and advertised their performances using The Doors name and The Doors’ distinctive logo. The second cause of action was for unfair competition. The third cause of action alleged violations of Business and Professions Code section 17200. The fourth cause of action was for breach of two oral partnership agreements that were allegedly formed after Morrison’s death; these were the DMC and Old Doors Agreements. The fourth cause of action alleged that Manzarek and Krieger had violated the principle of unanimity contained in these agreements. The fifth cause of action set forth an alleged breach of the New Doors Agreement. The sixth cause of action alleged that Manzarek and Krieger had breached their fiduciary duty toward Densmore by diverting to themselves the renown of The Doors and reaping the benefits of this misconduct; this cause of action alleged violations of the DMC and Old Doors Agreements.
The jury eventually returned verdicts for Densmore on the fifth and sixth causes of action, and found for appellants on the remaining claims.
The complaint sought the following relief: First, an injunction enjoining the defendants (a) from using the name and logo of The Doors; (B ) from selling or marketing themselves in such a way as to suggest that they were, or were affiliated with, The Doors; and © to deliver up all products confusingly similar to The Doors’ distinctive trademark and logo. Second, the complaint sought an order that the defendants be required to account for all profits arising from the unlawful use of The Doors distinctive trademark and logo. Third, the complaint demanded that Manzarek and Krieger respond in damages for their breaches of the oral partnership agreement and the New Doors Agreement.
The Estates filed their action on April 23, 2003. The plaintiffs were Columbus and Pearl Courson and Clara and George Morrison, who, it was alleged, held between them James Morrison’s 25 percent partnership interest in The Doors. The Estates’ action largely tracked the lawsuit filed by Densmore, with the exception that it included a cause of action for the misappropriation of Morrison’s name and likeness, in violation of Civil Code section 3344.1. As in Densmore’s action, the Estates’ complaint included a cause of action for breach of fiduciary duties based on The Doors partnerships, i.e., the Old Doors and DMC Agreements. The Estates’ action also included a cause of action that sought to impose a constructive trust and that sought an accounting. The relief demanded by the Estates’ action was largely the same as in Densmore’s lawsuit, with additional injunctive relief predicated on the misuse of Morrison’s name and likeness.
Manzarek and Krieger cross-complained.
The cross-complaint alleged that during Morrison’s lifetime decisions were made by majority vote, and did not require unanimity; that the New Doors Agreement did not actually reflect the true intent of the signatories thereto since “the partners would sign contracts and legal documents without reading them,” and the true intent behind the purported unanimity rule was to prevent individual partners from unilaterally conducting business; that Manzarek dissolved the partnership in 1973; that in 1978 Densmore participated in producing an album of music with poetry recorded by Morrison and that this was a waiver, by Densmore, of the New Doors Agreement’s provision that no member can use The Doors name after termination of the partnership; that Densmore’s conduct was arbitrary and reflected bad faith when he vetoed the $15 million Cadillac offer; that the cross-complainants repeatedly asked Densmore to tour with them but that he unreasonably refused to do so; and that the cross-complainants continued to extend an invitation to Densmore to join the band.
The cross-complaint alleged seven causes of action. The first cause of action for breach of fiduciary duty alleged that Densmore acted capriciously in refusing to consent to various ventures and in insisting that he had the right to veto decisions made by the majority. The second cause of action was for the breach of the covenant of good faith and fair dealing and relied largely on the same facts as the first cause. The third cause of action for promissory estoppel alleged that Densmore led the cross-complainants to believe in 2002 that he would tour with them, a promise on which they relied. The remainder of the cross-complaint was for intentional interference with economic advantage; violations of Business and Professions Code section 17200; declaratory relief, notably a declaration that “21st Century Doors” and “The Doors of the 21st Century” are not likely to cause confusion; and reformation. The cross-complaint demanded a trial by jury.
The jury found for the cross-complainants on the first three causes of action.
2. The Trial Court Denies Respondents’ Motions for a Preliminary Injunction on the Condition That Appellants Add to “The Doors” the Qualifier “of the 21st Century”
In April and May 2003, the trial court denied respondents’ applications for a temporary restraining order and preliminary injunction enjoining use of The Doors on the condition that the defendants use the qualifier “of the 21st Century” after The Doors name. Appellants seek to exploit this preliminary ruling in this appeal, contending that they did nothing more or less than what the trial court’s rulings on these provisional remedies allowed them to do.
We address this contention in part 9 of the Discussion. Here we note that, particularly during April 2003, the trial court was presented with advertising using The Doors name and logo, much of which had already been displayed, for performances to which appellants were contractually committed. The trial court had to deal pragmatically with these circumstances. Nor was the denial of provisional relief an indication that the court saw no merit in respondents’ side of the case. In ruling on the application for a temporary restraining order, the court found that Densmore “has raised a colorable argument regarding a threat of serious harm,” but the court found that Densmore’s notice of termination of the New Doors Agreement detracted from the claim that he was facing irreparable injury.
It is evident that in April and May 2003, when considering the applications for preliminary injunctive relief, the court was required to consider facts and circumstances that played no role in the ultimate resolution of the controversy between the parties.
3. Respondents Declare That They Do Not Seek Damages
Densmore’s and the Estates’ actions were consolidated for trial.
Densmore’s and the Estates’ complaints both sought damages for breach of contract. Apparently the first indication that respondents were not going to seek damages came during a hearing on discovery disputes held on April 22, 2004. During the course of argument, counsel for Densmore stated that “Mr. Densmore is not seeking to recover damages in the classic sense but disgorgement” and “We do attribute other damages to the conduct of the defendants. [] Do we seek to recover them? [] No. [] I made it very clear we are not intending to try to recover damages to the catalogue or reputation of The Doors. We think it has been damaged. But we are seeking to recover only in the form of disgorgement those profits earned by the defendants from their performing, recording, and videotaping activities.”
During his opening statement, counsel for Densmore and the Courson estate stated that while The Doors name and legacy had been harmed, “[w]e don’t want damage [sic] for the harm. . . . [] [W]e 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 a right to use it. That’s what we want, ladies and gentlemen. . . .” Counsel for the Morrison estate stated that “we want them to turn over their ill-gotten gain.”
As we discuss post, respondents never deviated after these opening remarks from their argument that they were seeking profits that belonged to The Doors’ partnerships. This is significant in that the calculation of partnership profits is usually a matter addressed in accounting proceedings on the equity side of the court.
4. Respondents Request During Trial That the Court Decide the Equitable Issues First; the Request Is Denied
Respondents state in their principal brief that they advised the trial court in late June 2004 “that they were waiving a jury trial given the predominant equitable issues” but that the “[appellants] demanded a jury trial.” The record is not as clear and streamlined as this, at least as far as the jury waiver is concerned. On June 25, 2004, in a pretrial conference, counsel for Densmore and the Courson estate stated: “We’ve given this a lot of thought, [respondents] and their counsel. And we know that the court is in a position to deal with the equitable and legal issues both. We’re inclined to waive the jury in favor of you trying this case. We think it’s faster, easier, just better for everybody for this to be a court trial if you were the judge.” While the reasons for the jury waiver appear to be mixed, there was no ambiguity about appellants’ demand for a jury trial, which they repeated after the quoted statement. Thus, a jury was impaneled on July 6, 2004.
Opening statements were made on July 6, 2004, and the first witness began his testimony that day. On July 27, 2004, respondents served on appellants a motion to have the equitable issues determined first by the court. Respondents’ motion took the position that their action was for injunctive relief, an accounting, restitution and imposition of a constructive trust, i.e., it was solely an equitable action. Respondents also contended that the cross-complaint was also solely equitable in nature. Appellants opposed the motion, contending that whether there was a partnership agreement, what its terms were, and whether that agreement was breached were all questions of law on which they were entitled to a jury.
On August 27, 2004, the trial court entered a minute order in which it noted that it had reviewed the jury instructions proposed by both sides, that it had rejected certain proposed instructions and approved others and that the court now required joint jury instructions. The minute order concluded by stating: “The Court will have the jury decide the legal issues first along with advisory findings regarding equitable issues.”
In principle, this minute order operated as a denial of respondents’ motion to have the court decide the equitable issues first. Unfortunately, this order did not address which claims were legal and which were equitable. In fact, the trial court left this question open until it filed its statement of decision in July 2005; as we relate below, the trial court expressly declined to make such a ruling while the jury was deliberating during September 2004.
The situation was complicated by the circumstance that there were some claims or causes of action that were not submitted to the jury for decision. These were the Estates’ fifth cause of action for a violation of Business and Professions Code section 17500 (false advertising), the Estates’ causes of action for the imposition of a constructive trust and for an accounting and the causes of action in the cross-complaint for declaratory relief and a reformation of the New Doors Agreement. Thus, when the case went to the jury, some claims had been withheld because they were equitable but some equitable claims did go to the jury.
It would have made for greater clarity if in the minute order of August 27, 2004, or in any event before the case went to the jury, the court had ruled which of the causes of action submitted to the jury were legal and which were equitable. This decision had to be made at some point. It is most useful to make this decision before the case goes to the jury. It is at that point, and not a year after jury deliberations, that the parties and the jury should know what questions are for the jury and what questions are reserved for the court.
As it was, the question of which claims were legal and which were equitable first surfaced on July 27, 2004, during the trial, and was not resolved until July 2005, long after the verdicts had been returned. Such a delay could only have a negative impact, as in fact turned out to be the case.
5. Arguments on the Evidence of Gross Earnings and Profits
The question whether respondents were harmed by appellants’ breaches of the partnerships agreements, assuming there were any breaches, was to surface during jury deliberations, as we discuss in part 7, post, of the Procedural History. The closing arguments of counsel clearly delineated the parties’ conflicting positions on this issue.
Mr. Mandel, counsel for Densmore and the Courson estate, stated that the money that was (hopefully) to be awarded would not go “to John Densmore’s pocket. It’s going to go to the partnership that owns the name. It’s going to go to the partnership whose property has been stolen. And if Manzarek and Krieger own half that partnership, so be it. We understand that.” Later, referring to Manzarek and Krieger, Mr. Mandel stated that each of them had earned $2.5 million, that Astbury had been paid $1 million, and that the concerts had grossed $8.5 million.
Attorney Jeffrey Forer, counsel for the Morrison estate, devoted considerable time to the issue of profits and gross revenues. He began by stating that the band had grossed $9 million. After pointing out that Manzarek, Krieger and Astbury had used Morrison’s name and likeness for their own benefit, Mr. Forer reviewed the exhibits that reflected income and expenses of Doors Touring, Inc., between August 2002 and July 2004. He then turned to checking account activity of another company used by appellants, Diamond Night Productions in 2003 and 2004. A summary of all of these documents showed earnings of $7,767,000, but this, according to Mr. Forer, was an incomplete figure. When merchandising and royalties were added, the gross earnings came “close to $9 million total.” Mr. Forer then examined in detail expenses claimed and argued that they were excessive since these operating expenses included salary paid Manzarek and Krieger, which, according to Forer, were not legitimate expenses. Forer challenged yet another tabulation of expenses that showed a loss of $1.6 million because these expenses included legal fees. Forer thought the legitimate expenses were between $4 and $5 million.
Attorney William Briggs, appellants’ counsel, countered these arguments by first pointing out that Densmore was invited to join the band but refused to do so. “He [Densmore] knows the basic principles of someone being in a band. If you don’t play, you don’t get paid.” Mr. Briggs then stated that after considering the expenses, the band operated at a loss, that all that Manzarek and Krieger took home with them was $439,000. In substance, the arguments were that Densmore was entitled to earnings only if he performed with the band and that, in any event, there were no profits or that, at best, the profits were minimal.
6. Jury Instructions
Respondents state in their principal brief that after the trial court’s minute order of August 27, 2004 (see part 4, ante, of the Procedural History), they prepared with appellants jury instructions “under protest.” There is no transcript reference to tell us what this protest was and when it was made. In any event, if the respondents were protesting that the jury was also receiving instructions on equitable claims, the protest was fruitless in that the instructions covered claims that were unquestionably equitable in nature. Remarks by the trial court, which we set forth in part 7, post, of the Procedural History, suggest that, on the equitable claims, the trial court considered the jury’s role to be advisory, a matter confirmed in the statement of decision.
We summarize the salient aspects of the instructions that pertain to the causes of action on which Densmore and the Estates recovered favorable verdicts. In light of appellants’ principal contention that the jury’s verdicts exonerated appellants, particularly noteworthy in the instructions is that the jury was instructed that, in order to recover, respondents had to show that they had been harmed.
On the breach of the New Doors Agreement, the jury was instructed that they had to find that Manzarek, Krieger and Densmore entered into this agreement, that Manzarek and Krieger “failed to do something that the contract required him or them to do or did something that the contract precluded them from doing,” and that Densmore “[was] harmed by that failure.”
Respecting the breach of the Old Doors and DMC Agreements, the jury was instructed that they had to find that Densmore, the Estates, Manzarek and Krieger formed such partnerships, that Manzarek and Krieger “failed to do something that the contract required him or them to do or did something that the contract precluded him or them from doing,” and that Densmore and the Estates “were harmed by that failure.”
On the claim brought under Civil Code section 3344.1, the jury was instructed that they had to find that appellants used Morrison’s name or likeness and that the Estates were harmed by this use.
No instructions on money damages were given.
In the instructions covering the Lanham Act, the jury was instructed that respondents had “elected not to seek such damages” and that they were seeking instead “injunctive relief and [appellants’] profits.” The jury was instructed how to calculate profits; these instructions were associated with the instructions on the Lanham Act.
7. The Question of “Harm” Arises During Jury Deliberations; Counsels’ Responses to the Jury’s Questions
The case went to the jury on September 2, 2004. The jury deliberated on September 7, 8, 9, and 10. On September 13, 2004, the jury returned with some questions. In addition to requesting read-back of testimony, the jury apparently had questions on the topics of what constitutes a breach of contract and what was meant by “harm” in the instructions on breach of contract. Unfortunately, the record does not appear to contain the actual questions asked by the jury but the comments of court and counsel make it acceptably clear what those questions were.
After the questions were presented to the court, the jury retired to resume deliberations and court and counsel discussed the questions propounded by the jury. Attorney Mandel, counsel for Densmore and the Courson estate, noted that the jury was “wrestling with [the] concept[] of harm” and that “[w]hile 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 [sic] includes that.” Attorney Briggs, appellants’ counsel, disagreed, stating that this was a breach of contract claim, which was a matter for the jury. 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 [sic] this whole issue of contract versus equitable. I think we can work this out. And interesting [sic] to see what they come up with. [] Their clarification may save a lot of time for us. Why don’t we pass it for a moment.”
After some discussion, the court decided to allow counsel to present argument on the questions the jury had asked.
Mr. Mandel went first. He stated that there had been two breaches of the partnership agreement. They were that Manzarek and Krieger had decided to tour as The Doors in 2002 when there was no unanimous agreement that they could do so. The second breach was that, after the termination of the New Doors partnership, Manzarek and Krieger used the name The Doors. Mr. Mandel then turned to the question of harm:
“Question No. 5 is a significant issue, and that is that [respondents] were harmed by the failure.[ ] In evaluating whether [respondents] were harmed by the failure, you have to keep in mind who [respondents] are and secondly what does it mean to be harmed which is the question that has been asked. [] With respect to who are [respondents], keep in mind that with respect to some of the causes of action, John [Densmore] has sued individually and on behalf of partnerships. 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 the breach of either of??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 benefited at the expense of the person who is complaining or the partnership who is complaining. [] . . . . [] So we believe in this case that there are two separate breaches both of which result in the same harm, that is, [appellants] have profited to the tune of roughly $3 million. They ought not to 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.” (Italics added)
The response to this argument came from Attorney Briggs, appellants’ counsel. Mr. Briggs began with the point that Densmore, as a professional musician, knew that if you don’t play, you don’t get paid??and that Densmore admitted that he didn’t play at the Harley-Davidson concert or thereafter. Mr. Briggs disagreed with the claim that this was a case of unjust enrichment. Giving the example of a person using a car belonging to someone else, and stating that under such circumstances the owner of the car should be compensated, Mr. Briggs stated “[t]hat’s not what happened here. [] . . . [] [T]here was no harm. There is no harm. If you’re looking for the type of harm that that jury instruction is requesting of you, it’s how much is he out-of-pocket? Absolutely nothing.” When Mr. Mandel gave his reply argument, he closed by stating: “Harm is as we’ve discussed, the disgorgement, economic benefit.” Thus, as both counsel framed the issue for the jury, the question was whether the harm was the profits the appellants made on tour or whether the harm was Densmore’s out-of-pocket loss. If it was out-of-pocket loss, there was no harm since there was no evidence of out-of-pocket loss.
The proceedings of September 13, 2004, were very significant. As counsels’ arguments framed the issue for the jury, the question was whether respondents had been harmed to the extent they did not share in the profits generated by appellants’ concerts or whether, as appellants contended, respondents had not been harmed because they had not sustained any out-of-pocket loss. Thus, the jury had a real decision to make: Was the harm the loss of profits or was it an out-of-pocket loss? Significantly, if it was the former, Mr. Mandel had argued without drawing an objection that the court would determine the amount that would be awarded to the partnership. Neither the court nor opposing counsel corrected Mr. Mandel’s statement. The jury was left with one impression and one impression only: they were not to determine the amount of lost profits.
8. The Special Verdicts
The case went to the jury on September 2, 2004; the jury returned its verdicts on September 27, 2004, having deliberated during most of September.
The jury rejected the following of respondents’ claims: (1) Lanham Act (Densmore and Estates); (2) common law unfair competition (Densmore and Estates); (3) Business and Professions Code section 17200 (Densmore and Estates); (4) breach of oral partnership agreements (the DMC and Old Doors Agreements) (Densmore); (5) common law trademark infringement (Estates); (6) state trademark dilution (Estates); (7) breach of contract (Estates); and (8) breach of implied contract (Estates).
Respecting Densmore’s action, the jury found that Manzarek and Krieger had breached the New Doors Agreement and also had breached their fiduciary duties under The Doors partnerships. These claims were set forth respectively in the fifth and sixth causes of action. The jury found that Manzarek and Krieger were liable to Densmore for these breaches but entered a zero, in each instance, to the question “what amount, if any, do you award” for these breaches.
On the Estates’ action, the jury found that Manzarek and Krieger had violated Morrison’s postmortem right of publicity and that they had breached their fiduciary duties under the Old Doors and DMC Agreements. These were the seventh and 10th causes of action. As with Densmore, the jury found Manzarek and Krieger liable to the Estates for these breaches and entered a zero, in each instance, to the question “what amount, if any, do you award” for these breaches.
On the cross-complaint, the jury found that Densmore had breached his fiduciary duties that he owed Manzarek and Krieger, that he also breached the covenant of good faith and fair dealing incorporated in the New Doors Agreement, and that Densmore was also liable on the promissory estoppel claim. These were the first, second and third causes of action of the cross-complaint. As with Densmore and the Estates, the jury entered a zero, in each instance, to the question “what amount, if any, do you award” for these breaches. The jury found for Densmore on the cause of action for a violation of Business and Profession Code section 17200. The sixth and seventh causes of action of the cross-complaint, for declaratory relief and a reformation of the New Doors Agreement respectively, were not submitted to the jury for decision.
9. The Statement of Decision
Following the verdict, the parties filed voluminous memoranda on what the terms of the judgment should be. Appellants contended that the jury’s verdict resolved all questions of fact in their favor and that the court should enter a judgment for them. Respondents argued that virtually all of the claims were equitable or sought equitable relief and that the jury verdict was therefore only advisory. Respondents also contended that the verdicts returned by the jury were confusing and contradictory.
The trial court requested additional briefing on a number of specific issues; the final memorandum in response to this order was filed on February 25, 2005.
The court filed an extensive statement of decision on July 21, 2005.
a. The Statement of Decision on the Question of Legal and Equitable Issues
The court noted that when the trial commenced, the general understanding was that the jury was to function in the usual way, i.e., there was no mention of the jury sitting in an equitable case as an advisory jury only. It was only after the trial had been underway that respondents made known their position that the case was solely a proceeding in equity. But the court could not treat the verdicts on the legal causes of action as advisory only without violating the right to a trial by jury. Thus, the court would enter a judgment on the legal causes of action in accordance with the jury’s verdicts.
b. Densmore’s Action
The trial court concluded that appellants were entitled to judgment on the first four causes of action in that the jury had found in their favor on these causes of action.
The fifth cause of action was for the breach of the New Doors Agreement; the jury found for Densmore on this claim but did not award monetary damages. The trial court concluded that harm, not damages, is an essential element of a breach of contract action and that “when a jury does not award damages, this does not conclusively mean that the jury has found no harm. . . . The ‘harm’ in this case was the taking of a partnership asset and exploiting it without permission from the other partners. Judgment is entered in favor of Densmore. The equitable remedies of disgorgement of profits and a permanent injunction are ordered, notwithstanding the jury’s finding of no damages.” The trial court made an identical finding on the claim for breach of fiduciary duty, wherein the jury also had found for Densmore.
c. The Estates’ Action
The trial court entered judgment for appellants on the first, second, third, fourth, sixth, eighth and ninth causes of action in light of the special verdicts returned by the jury.
The fifth cause of action for false advertising under Business and Professions Code section 17500 was deemed to be an equitable claim. The trial court found that Manzarek and Krieger had prominently displayed The Doors logo, minimized the qualifier “of the 21st Century” and had engaged in other acts of false advertising. The court issued a permanent injunction restraining Manzarek and Krieger from false advertising.
The court concluded that the seventh cause of action for violation of Morrison’s right of publicity under Civil Code section 3344.1 was a legal cause of action and that the jury had found for the Estates on this claim but awarded no monetary damages. The court awarded $750 in statutory damages on this claim.
On the 10th cause of action for breach of fiduciary duties, where the jury had found for the Estates, the trial court found that the Estates were 25 percent partners in the Old Doors Agreement with Densmore, Manzarek and Krieger. The court awarded the equitable remedies of a permanent injunction and disgorgement of profits earned by Manzarek and Krieger after April 18, 2003.
The court noted that the causes of action for the imposition of a constructive trust and for an accounting were equitable claims and were not presented to the jury. The court concluded that it would impose a constructive trust and it ordered that an accounting of profits take place.
d. The Cross-complaint
It will be remembered that the jury found for appellants on the first three causes of action of the cross-complaint but that the jury did not award any monetary damages to appellants, i.e., the cross-complainants. For differing reasons, the trial court set these verdicts aside and entered judgment for Densmore on all three causes of action.
The trial court analyzed the first cause of action of the cross-complaint for breach of fiduciary duty in two steps. (This cause of action was predicated on Densmore’s refusal of the Cadillac and Apple offers and the article in The Nation.) First, the court noted that the jury did not award monetary damages, that appellants did not seek equitable relief in this cause of action and that the court did not think that such relief was warranted. Second, the court gave reasons why equitable relief was not indicated. The reasons that such relief was not warranted were that (1) Densmore and Krieger never voted to accept the Cadillac and Apple offers; (2) if unanimity was the rule, the offers could not be accepted; and (3) if a majority was sufficient, a majority never voted to accept the offers. As far as The Nation article was concerned, there was no evidence that any commercial prospects were lost because of this article. Thus, since appellants “have failed to demonstrate their entitlement to any relief based on this claim,” judgment was entered for Densmore.
The second cause of action for breach of the covenant of good faith and fair dealing was dealt with by the court in the same way. (This cause of action was predicated on Densmore allegedly reneging on his permission to allow Manzarek and Krieger to do the Harley-Davidson concerts under The Doors logo.) Appellants were not entitled to equitable relief because they had not complied with the conditions that Densmore laid down as part of his agreement to the Harley-Davidson concerts.
The court concluded that the third cause of action for promissory estoppel was an equitable claim and that the jury’s verdict was therefore advisory only. (This cause of action was based on Densmore’s alleged representation to Manzarek and Krieger that they could perform as The Doors after the Harley-Davidson concerts.) The court found that Densmore had established two conditions, neither of which was met. These were that the new band’s name be clearly modified to reflect that it was not The Doors and that the new band would not use The Doors logo. The court cited Krieger’s testimony acknowledging the modifier and conceding that he “ ‘didn’t get around to it.’ ” Since Densmore’s conditions were not met, promissory estoppel could not be invoked. Accordingly, judgment was entered on this cause of action for Densmore.
The jury found for Densmore on the fifth cause of action for a violation of Business and Professions Code section 17200; the court entered judgment for Densmore.
On the sixth cause of action for declaratory relief, the court concluded that (1) the rule governing the various Doors partnerships was unanimity, not majority; (2) use by appellants of the name “The Doors of the 21st Century” was a violation of Business and Professions Code section 17500; (3) appellants do not have the right to use the title “The Doors of the 21st Century”; (4) there is no competent evidence to support appellants’ assertion that there was no meeting of the minds on the Old and New Doors Agreements; (5) The Doors name was owned by the Old Doors partnership and is now owned by Manzarek, Krieger, Densmore and the Estates; and (6) The Doors name was not abandoned to the public domain.
Finally, the court declined appellants’ request to reform the New Doors Agreement (seventh cause of action), finding that the parties thereto were “mature, educated men, represented by competent legal counsel when the New Doors partnership agreement was executed. Somers, their legal counsel, testified that the agreement was explained to the three of them.”
e. Orders Entered in the Statement of Decision
The statement of decision concluded by indicating that the court would enjoin Manzarek and Krieger from holding themselves out as The Doors, The Doors of the 21st Century or using a name including the words “The Doors.” The statement of decision also held that the profits earned by Manzarek and Krieger as The Doors or The Doors of the 21st Century be divested and distributed as follows: (1) one-third of all profits between January 1, 2003, and April 18, 2003 be delivered to Densmore; and (2) all profits after April 18, 2003, be turned over to the Old Doors partnership.
The statement of decision ordered appellants to submit a written accounting with supporting documentation on profits earned from and after June 30, 2003, and prior to April 18, 2003. The court ordered respondents to file a reply and set a hearing on the accounting for September 6, 2005.
10. Injunction and Judgment
On July 21, 2005, the court issued a permanent injunction enjoining Manzarek and Krieger from holding themselves out as The Doors, The Doors of the 21st Century or using any other name that includes the words “The Doors” without written consent of the partners of the Old Doors Agreement. The injunction allows Manzarek and Krieger to identify themselves as founding or original members of The Doors under certain specific conditions but specifically bars use of The Doors logo. Manzarek and Krieger were also enjoined from using the name, likeness, voice or image of Morrison to promote their band or their concerns.
The judgment that reflected the conclusions and findings of the statement of decision was entered on November 21, 2005. The judgment did not address or dispose of the accounting issues identified in the statement of decision.
On December 16, 2005, the parties reached an agreement on the accounting issues left open in the judgment. Based on that agreement, the court entered an addendum to the judgment on January 4, 2006, in which it ordered Manzarek and Krieger to each pay Densmore in “full and final disgorgement of one-third of all profits . . . from January 1, 2003, through April 18, 2003” the sums of $41,137 for a total of $82,274. Also in “full and final disgorgement of all profits” after April 18, 2003, Manzarek and Krieger were each ordered to pay the Old Doors partnership $1.6 million for a total of $3.2 million. These were the sums to which the parties had stipulated on December 16, 2005.
DISCUSSION
1. The Jury Deferred the Calculation of Lost Profits to the Trial Court
It will be remembered that the jury returned four verdicts favorable to respondents. These were verdicts for the breach of the New Doors Agreement in Densmore’s action, for appellants’ breaches of their fiduciary duties to Densmore and the Estates under the Old Doors and DMC Agreements, and for the violation of Morrison’s postmortem right of publicity. The jury responded with “$0” to the question “what amount, if any, do you award” for these breaches. The question is whether this means that the jury concluded that respondents sustained no harm or whether the jury intended to defer the calculation of damages, i.e., lost profits, to the trial court.
There are seven factors that must be taken into account in considering this question.
First. Respondents were consistent in stating, beginning with hearings prior to trial, that they were not seeking damages but profits. As far as the jury was concerned, respondents made this clear in their opening statements, in their closing arguments and in their arguments to the jury on September 13, 2004, made in response to the jury’s questions.
Second. There was no monetary evidence presented other than loss of profits.
Third. Evidence was presented on profits and the jury received several instructions on the calculation of profits. But all of these instructions were given in conjunction with the trademark claim brought under the Lanham Act, a claim on which the jury found for appellants.
Fourth. Other than the Lanham Act instructions, no instructions were given on damages or on loss of profits. This includes the instructions on the cross-complaint; the only instruction given on the claim that Densmore’s breached the covenant of good faith and fair dealing was that his conduct must have caused harm to appellants.
Fifth. An accounting and determination of profits, together with an order distributing the profits to respondents, is unquestionably on the equity side of the court. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 775, p. 233.)
Sixth. Midway during its deliberations, the jury was told that the court would determine, at a later stage of the proceedings after the verdict, what the profits were. On September 13, 2004, Attorney Mandel stated outside the presence of the jury that the court would “deal with” disgorgement and unjust enrichment as equitable remedies. Following this comment, during Mr. Mandel’s ensuing argument to the jury he stated that the court would determine what the profits were.
Seventh. The jury found for Densmore on the breach of the New Doors Agreement, and for Densmore and the Estates for breach of appellants’ fiduciary duties under the Old Doors and DMC Agreements. The jury also found that appellants had violated Civil Code section 3344.1 in misappropriating Morrison’s name and image. In each instance, the jury was instructed that they had to find that the breaches, if any, harmed respondents. Thus, in returning verdicts for respondents on these claims, the jury found that respondents were harmed by these breaches. In terms of the theory presented to the jury by respondents, that harm was loss of profits.
These seven factors, and their interplay, lead us to conclude that the jury made no monetary award because it believed that this would be done by the court.
Our dissenting colleague concludes that the conclusion that Densmore, i.e., respondents, was harmed did not permit the court to “disregard the jury’s award of zero damages on an indisputably legal claim for breach of contract.” But the verdict form in this case cannot be viewed in a vacuum that does not take into account the factors that we have identified. The totality of these factors indicates that the jury understood that, apart from the Lanham Act claim, it was the court that would determine the amount of lost profits.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:22:45 GMT
The dissent states that if it was the court that would determine the amount of lost profits, there would have been no need to hear testimony about receipts and expenses, no need for counsel to argue about how to calculate profits and no need for instructions on permissible deductions and apportionment of gross profits. This is a misperception of the realities of this case. First, from the very beginning respondents’ case was that they sought lost profits, i.e., that the harm they had sustained was loss of profits. This was therefore a central aspect of the case; if the jury did not conclude that appellants misappropriated profits belonging to respondents, the latter could not prevail on any their claims. It was another matter who would calculate the amount of lost profits. Second, the jury instructions on permissible deductions, apportionment of profits and the like were given only in connection with the Lanham Act claim. Once the jury found for appellants on that claim, the jury could justifiably conclude that they did not have to concern themselves with those instructions. Third, the very fact that, outside the Lanham Act claim, there were no instructions on damages or lost profits shows that it was everyone’s ?? including the jury’s ?? understanding that the court would calculate the amount of lost profits.
The dissent states that respondents cannot 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.” On September 13, 2004, cited both in our opinion and the dissent, Mr. Mandel told the jury that the amount of lost profits to be awarded either “in favor of John [Densmore] 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 is not a stray remark; it ties in with the other six factors that we have identified that show that it was the general understanding, shared by the jury, that, other than under the Lanham Act claim, the court would calculate lost profits.
We disagree with the dissent that Mandel’s aforesaid statement was a “passing comment by a lawyer in argument about which entity will get the money” and that this comment “cannot trump the instructions and verdict form” that come from the court and which therefore govern. This was not a comment about which entity would get the money, but a statement that the court would determine the amount of profits to be awarded. That this is what Mandel intended to say is shown by his earlier statement outside the presence of the jury that the court would deal with the disgorgement of profits and unjust enrichment. (See text, ante, p. 19.) Mandel’s statement could hardly have been more explicit. The fact that there was no objection to the statement shows that it reflected the general understanding that it would be the court that would determine the profits in the subsequent equitable accounting proceedings.
Standing alone, the circumstance that the jury made no monetary award to any of the litigants would be certainly a startling occurrence in a trial of this length, and following jury deliberations that took nearly a month. But the other factors that we have identified explain why this happened. There was never any doubt that respondents were seeking profits and not damages; midway during their deliberations, on September 13, 2004, the jury was told that the court would determine the profits (as it actually did) and there was no objection or contrary argument from appellants on this point; and the jury made no monetary award to anyone, even though it found several breaches to have been committed. It is inconceivable that the jury would have deliberated as long as it did, and returned verdicts as nuanced as its verdicts were, if it had concluded that no one had been harmed.
The dissent finds it plausible that the jury returned verdicts that found that appellants had breached their agreements with respondents but that it also found that these breaches resulted in no damages. The dissent reasons that this is so because the jury apparently viewed “all the litigants as having behaved badly.” This point of view is both conceptually and pragmatically unsound.
Conceptually, the jury was required to find that respondents had sustained harm as a result of appellants’ breaches. Having found harm, the jury could hardly find no damages, i.e., no lost profits. It is to be kept in mind that the jury was repeatedly told that harm in this case, if there was harm, was lost profits; in fact, the jury was again told this on September 13, 2004, during its deliberations, in response to its question about harm.
Indeed, whether respondents had sustained harm in the form of lost profits was a sharply contested issue. Appellants contended that since Densmore did not perform, he was not entitled to be paid; alternatively and additionally, appellants contended that, in light of the expenses, there really were no profits. This all added up to the fact, according to appellants, that respondents had not been harmed. Respondents claimed that the gross profits were between $8 million and $9 million, that the net was around $2.5 million or $2.7 million, and that appellants were not entitled to keep all of these profits for themselves; there was, in other words, harm and the harm was lost profits. Thus, whether respondents had been harmed was extensively litigated, with the position of the litigants clearly and emphatically drawn. The jury had to face and resolve this issue; there was no way of avoiding it. The fact that the jury asked about “harm” during its deliberations only confirms that the jury did in fact address the issue. Thus, the verdicts that appellants breached their agreements with respondents means that the jury concluded that there was harm, i.e., that there were profits to which respondents were entitled.
Contrary to the dissent, it was not the court but the jury that found that appellants had harmed respondents. It is therefore not true, as the dissent states, that it was the trial court’s conclusion of “harm” that resulted in the court disregarding “the jury’s award of zero damages on an indisputably legal claim for breach of contract.” The jury itself found that there was harm and the trial court’s award of lost profits carried that finding into effect.
Pragmatically, it seems highly unlikely that the jury would deliberate as long as it did, and render verdicts as nuanced as these verdicts were, if in fact the jury concluded, as the dissent suggests, that no one should recover anything. There would have been a far simpler, and quicker, way of accomplishing that objective.
It is also true that there is nothing unusual about the circumstance that the calculation of profits was deferred to a later, equitable stage of the proceedings. The determination of profits through an equitable accounting proceeding (5 Witkin, Cal. Procedure, supra, Pleading, § 775, p. 233) is standard and unexceptional. The trial court commenced those proceedings in its statement of decision when it set the timetable and ground rules for the accounting. As it turned out, a stipulation between the litigants covering the accounting made additional proceedings unnecessary.
In light of the foregoing, we find that the jury intended to, and did, defer the calculation of lost profits to the trial court. This was appropriate, since the determination of profits was left to the accounting proceedings on the equity side of the court, which were proceedings that were intended to take place after the jury’s verdicts had been returned.
The foregoing leaves unresolved the troublesome matter why the question “what amount, if any, do you award” for the breaches was left on the verdict forms, not once, but repeatedly.
If, as we have concluded, it was the intention of all, i.e., the trial court as well as the parties, that the calculation of lost profits was to be performed by the court, the question “what amount, if any, do you award” should not have been left on the verdict forms.
It is of course true that respondents should have objected to the presence of this question and should have sought to have it removed from the verdict forms. Ultimately, however, it was the trial court’s responsibility to ensure that the verdict form in this complex case was free of ambiguities and errors that might draw the verdicts into question. The only conclusion we can draw is that this was a serious oversight on the part of the trial court, in the first place, and the parties, in the second place. While we disagree, for reasons stated, with our dissenting colleague, the fact is that this oversight may well have undone the hard work of several months on the part of the trial court and counsel and, last but certainly not least, of a conscientious and committed jury panel.
Were it not for the compelling circumstances, which we have detailed, that show that it was everyone’s understanding that the calculation of lost profits was to be performed by the trial court in the accounting proceedings following the verdict, we would not reach the conclusion that we have reached.
2. The Jury Did Not Find That Respondents Sustained No Damages
Appellants contend that the jury “found that [appellants] were not liable on certain claims and that [respondents] suffered no damages on other claims as to which the jury concluded there was liability.”
This contention is mistaken in its premise; the jury did not conclude that respondents suffered no damages on claims on which respondents recovered.
As we have discussed in part 1 of the Discussion, ante, each of the claims on which respondents recovered required that the jury find that respondents had been harmed by appellants’ breaches; harm was an essential element of each of these causes of action. Nor did the jury ignore or disregard this element, as the proceedings of September 13, 2004, make clear.
It is also true that the parties vigorously litigated the question whether respondents had sustained harm. And “harm” was defined throughout, and without equivocation, as loss of profits. Respondents presented evidence on loss of profits and energetically argued that there was such a loss, a contention that appellants disputed.
The jury, having found that respondents had sustained harm on the claims on which the jury found for respondents, reasonably concluded, as we have explained, that the court would determine at a later time what the net profits had been. In fact, this is precisely what the trial court did.
Thus, we reject the contention that the jury found that respondents had not sustained damages.
3. The Trial Court Did Not Disregard the Jury’s Verdicts
Appellants contend that the trial court disregarded the jury’s verdicts on the claims “triable at law” and that this is reversible error.
As before, the premise of this argument is mistaken; in all but three causes of action asserted in the cross-complaint, the trial court entered a judgment that is consistent with the jury’s special verdicts. We take up these three causes of action of the cross-complaint separately in part 4 of the Discussion, post.
First. The trial court entered judgment on the causes of action on which the jury found for appellants in conformance with the jury’s special verdicts. These were the first four causes of action in Densmore’s action and the first, second, third, fourth, sixth, eighth and ninth causes of action in the Estates’ action. Since the trial court followed the jury’s verdicts on these causes of action, for the purposes of addressing appellants’ argument it is unnecessary for us to decide whether these causes of action were legal or equitable in nature; the point is that the judgment on these claims conformed to the verdicts.
Second. The fifth cause of action of the Estates’ cause of action for false advertising in violation of Business and Professions Code section 17500 was an equitable claim on which the jury did not return a verdict. On this claim, the trial court found for the Estates and issued an injunction barring use of The Doors name and logo.
Third. The two claims on which the jury returned a verdict for Densmore were the fifth cause of action for breach of the New Doors Agreement and the sixth cause of action for breach of fiduciary duty. Here, the premise of appellant’s contention is that the jury’s decision not to award any damages exonerated appellants, i.e., that the decision not to award damages effectively nullified the verdicts finding appellants liable on these claims. We have already explained why this premise is mistaken. The trial court correctly entered judgment for Densmore on these claims, deferring a determination of profits to the accounting, which is an equitable proceeding.
Fourth. The two causes of action on which the jury returned verdicts in favor of the Estates were the sixth cause of action for a violation of Morrison’s rights under Civil Code section 3344.1 and the 10th cause of action for breach of fiduciary duty. The jury did not find any damages under the Civil Code section 3344.1 claim. The statute required the court to award the greater of $750 or actual damages; the court awarded $750, as it was required to do. (See fn. 14, ante.) On the 10th cause of action, appellants’ contention that the jury’s failure to award monetary damages exonerated them from the contrary verdict on liability under this claim is without merit for reasons previously stated.
Fifth. The causes of action for the imposition of a constructive trust for the profits earned by appellants and the cause of action for an accounting in the Estates’ action are concededly equitable claims on which the jury did not return verdicts.
Thus, the judgment that was entered in the principal action was consistent with the verdicts returned by the jury.
4. The Trial Court’s Disposition of the First Three Causes of Action of the Cross-complaint Was Correct
The jury found for appellants on the first three causes of action of the cross-complaint. The fourth cause of action of the cross-complaint was dismissed prior to trial (see fn. 15, ante), the jury held against appellants on the fifth cause of action (Bus. & Prof. Code, § 17200), and the court held against appellants on the remaining two causes of action (declaratory relief and reformation), which did not go to the jury.
The trial court did not follow the jury’s verdicts on the first three causes of action. These were causes of action for breach of fiduciary duty (first), breach of the covenant of good faith and fair dealing (second) and for promissory estoppel (third). In each instance, the jury returned a “$0” to the question “what amount, if any, do you award.”
We have set forth the trial court’s reasoning on these three causes of action. (See text, pp. 24-25, ante.) The first two causes of action are legal in nature, in that appellants sought damages. Thus, the trial court was bound by these verdicts, were it not for the fact that the jury returned a verdict of “$0” damages for these breaches. It is well settled that a breach of contract is not actionable without damages. (Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th 468, 473; Patent Scaffolding Co. v. William Simpson Constr. (1967) 256 Cal.App.2d 506, 511.) The trial court analyzed whether appellants were entitled to equitable relief on the first two causes of action and concluded that they were not entitled to this type of relief, a conclusion appellants do not challenge. Thus, since no damages were awarded on the first two causes of action, the trial court was required to enter judgment for Densmore on these claims.
We do not agree with the dissent that the trial court applied a different rule to these causes of action of the cross-complaint than it applied to the complaint. As a concept, “harm” under the complaint meant one thing and one thing only: lost profits. On the other hand, “harm” under the cross-complaint could mean only damages. The difficulty with damages under the cross-complaint, however, was that appellants operated their band at a profit. Thus, appellants simply could not show that they had been damaged by Densmore’s conduct. The jury so found, and the trial court drew the correct legal conclusion from that finding.
The trial court concluded that the cause of action for promissory estoppel, asserted as the third cause of action in the cross-complaint, was an equitable claim. The trial court correctly concluded that this is an equitable claim and that the verdict was therefore advisory only; that Densmore had laid down two conditions for the Harley-Davidson concerts, which were that the band’s name be clearly modified to reflect that it was not The Doors and that the new band would not use The Doors logo; and that neither condition had been met. The trial court therefore entered judgment for Densmore on this claim.
We agree with the trial court’s analysis and disposition. It is well settled that equitable estoppel is an equitable doctrine for the court and not the jury to apply and decide. (See generally 13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 190 et seq.) Appellants contend that if estoppel is asserted as a defense, as it was in this case, estoppel is a matter for the jury. This argument is mistaken. Estoppel is not the same as promissory estoppel; the trial court addressed a claim of promissory estoppel, and not the defense of estoppel.
Thus, we conclude that the trial court’s disposition of the first three causes of action of the cross-complaint was correct.
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Post by TheWallsScreamedPoetry on Jan 4, 2011 20:23:41 GMT
Continued 5. The Jury Did Not Find That There Were No Lost Profits Appellants contend that since the only evidence of damages was evidence of lost profits, and since the jury did not return a monetary award, the only conclusion possible is that the jury concluded that respondents sustained no damages, i.e., that there were no lost profits. The flaw in this contention is that it is unrealistic; it is not based on what actually occurred during the trial and the jury’s deliberations. First. This argument ignores that respondents’ counsel Mandel told the jury midway during the month-long jury deliberations that the amount of profits would be determined by the court. This Mr. Mandel did without objection or contrary argument from appellants’ counsel. When Mr. Mandel made exactly the same comment immediately prior to his argument to the jury, there was no objection from appellants’ counsel. Thus, it appears that it was the expectation of counsel on both sides that, if the jury found for respondents, net profits, if any, would be determined in the accounting proceedings. Second. It is unrealistic to suppose that the jury would find appellants substantively liable but that, practically in the same breath, the jury would exonerate them. Given how long and conscientiously the jury deliberated, such a self-defeating verdict is simply implausible. Third. Appellants’ contention is all the more implausible if one considers that to find appellants substantively liable, the jury also had to conclude that respondents had been harmed. This was true of every claim on which the jury found for respondents. Given the attention that the question of harm received, the only reasonable conclusion is that the jury actually addressed and resolved the issue whether respondents had been harmed by the breaches that the jury found appellants had committed. Fourth. The somewhat uncertain state of evidence on the exact amount of the profits confirmed that this calculation would be performed later. While there was evidence of gross and net profits, there were a number of issues, such as the legitimacy of certain expenses, that needed to be resolved before profits could be calculated. Even Densmore and the Estates differed to some extent on what the net profits were. Thus, the jury could reasonably assume that what it was being told was in fact true, i.e., that profits would be calculated by the court at a later time. As it turned out, this is exactly what happened. Fifth. Beginning with pretrial statements by respondents’ counsel, it was clear throughout that respondents were seeking a disgorgement of profits and not damages. To a lawyer, disgorgement of profits means the equitable remedies of a constructive trust and an accounting. Not once did appellants’ counsel object to the invocation of these equitable remedies; appellants based their defense on the theory that there had been no profits, not that these remedies were unavailable as a matter of law if there had been profits. Thus, appellants’ counsel was perfectly aware of the fact that if the jury found appellants to be liable, there would be an accounting after the verdict. In short, all counsel, the trial court and the jury were aware of the fact that if the jury found appellants liable, the net profits would be determined in a later proceeding, after the verdict. The jury’s decision not to award monetary damages was nothing more or less than a recognition of this fact. Appellants’ misunderstanding of the record is reflected in their argument: “The jury found [appellants’] conduct caused no harm (and no lost profits), determining that [respondents] suffered ‘$0’ damages.” There are three flaws in this argument. First, as we have noted, the jury had to find that appellants’ conduct caused harm in order for the jury to find appellants liable. Second, the jury did not find that there were “no lost profits.” Indeed, to find harm the jury necessarily found that there were lost profits, since that was the only form of “harm” presented. And, third, the verdict was not that respondents “suffered ‘$0’ damages” but that the jury did not return monetary awards, leaving the calculation of the award to the court. 6. The Trial Court’s Finding of a Violation of Business and Professions Code Section 17500 Is Affirmed Appellants contend that the jury’s verdicts exonerating them of the claims for statutory and common law trademark infringement, unfair competition and violations of Business and Professions Code section 17200 are inconsistent with the trial court’s finding on the Estates’ fifth cause of action that use of the name The Doors violated Business and Professions Code section 17500. As appellants put the point, the jury was instructed that use of the names “The Doors” or “The Doors of the 21st Century” had to be likely to cause confusion (trademark infringement) or was likely to deceive people into thinking that use of the names was authorized (unfair competition) or constituted unfair business practices (Bus. & Prof. Code, § 17200). According to appellants, since the jury found for appellants on these claims the court was precluded from entering judgment for respondents on the Estates’ fifth cause of action for deceptive advertising. There are two reasons why we disagree with appellants. First, it is not necessarily true that the jury’s verdicts on the trademark, unfair competition and Business and Professions Code section 17200 claims are inconsistent with the trial court’s finding on the claim for misleading advertising. Second, even if there is an inconsistency between the verdicts and the court’s finding on the misleading advertising claim, the trial court was not bound by the verdicts since the trademark, unfair competition and section 17200 claims were equitable. a. The Verdicts and the Trial Court’s Finding on the Misleading Advertising Claim Are Not Necessarily Inconsistent We begin by noting that the Estates’ fifth cause of action was not submitted to the jury for decision, in that it is clearly is an equitable claim. Thus, the decisionmaker on this claim was the trial court, and not the jury. We do not think that the trademark and unfair competition claims are substantively the equivalents of a claim arising under Business and Professions Code section 17500. Section 17500 is a fairly complex statute that prohibits, in the sale of goods and services, advertising that is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading. The trademark claim deals with the likelihood of confusion about the source of goods and services. An advertisement may be untrue or misleading without creating the likelihood of confusion about the source of goods and services. As an example, an advertisement that states that all doctors agree that brand X is a proven cure for the common cold is false but says nothing about the likelihood of confusion about the source of brand X. The unfair competition claim turns on whether use of the name The Doors is likely to deceive the public into thinking that usage of the name was authorized. Reference to the brand X hypothetical is again apropos. The statement that all doctors agree that brand X is a cure for the common cold has no connection with whether use of the name brand X was authorized. Advertising may be untrue or misleading without suggesting that the use of a name or label was not authorized. As far as the claim under Business and Professions Code section 17200 was concerned, the jury was instructed that the coverage of section 17200 “is broad and sweeping, embracing anything that might be called a business practice that is unlawful or unfair.” The jury was instructed that it could find a violation of this provision if appellants were found to have done any of the following: (1) violated trademark law or the Lanham Act; (2) engaged in unfair competition; (3) engaged in unfair business practices; or (4) “engaged in unfair, deceptive, untrue or misleading advertising.” We refer to this instruction hereafter as the “section 17200 instruction.” While there is a reference in the section 17200 instruction to untrue or misleading advertising, the jury was not instructed about the elements of untrue or misleading advertising in the terms of Business and Professions Code section 17500. As the text of the statute clearly reveals (see fn. 21, ante), untrue or misleading advertising as prohibited by section 17500 is a claim with several distinct elements. Among those elements is that the “statement” made in the advertisement must be known, or in the exercise of reasonable diligence should be known, to be untrue or misleading. This requirement of knowledge is only one of several elements of a claim under section 17500 on which the jury received no instructions whatsoever. Indeed, the jury received no instructions at all on section 17500, which was in keeping with the trial court’s correct view that this claim is equitable. Thus, the passing reference in the section 17200 instruction to untrue or misleading advertising did not tender for decision whether section 17500 was violated. It is true, as the dissent notes, that it has been held that a violation of California’s false advertising law necessarily violates section 17200. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 210.) While this is true as an abstract proposition, it may be that a Business and Professions Code section 17200 claim will fail on its facts because some element of the unfair competition claim, which does not appear in section 17500, has not been made out. As an example, the jury may find that the conduct in question was not a “business practice” and hence not actionable under section 17200. While this is undeniably a close question, we cannot say that, on its facts, the section 17200 claim in this case is a duplicate of the section 17500 claim. For the reasons stated, we conclude that in this case the jury’s verdict on the Business and Professions Code section 17200 claim is not inconsistent with the trial court’s finding on the section 17500 claim. But, even assuming that there is an inconsistency, it is not fatal. As we explain in part 6.b., post, the section 17200 claim was equitable in nature. Thus, the jury’s verdict was only advisory and the trial court was empowered to disregard it. The trial court’s findings on this claim unambiguously reflect that the court’s focus was on (1) advertisements that were (2) known to be untrue or misleading. The text of the court’s findings on this claim follows: “Counsel and the court agree that this is an equitable claim, removed from the jury’s consideration. The court finds that use of the name The Doors by [appellants] is a violation of B&P Section 17500. 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 [appellants] have engaged in false advertising. [] . . . [] A permanent injunction shall issue in favor of the Estates and against Manzarek and Krieger enjoining them from using the name The Doors or any name containing the name The Doors, or using the name, voice or likeness of Jim Morrison to promote their concerts.” We do not agree with the dissent that the trial court did not explain whether the advertising was false or, instead, true but misleading. The trial court found that the advertising was false. It was false because the advertising stated that appellant’s band was The Doors. But this was not true. Appellants’ band was just that, i.e., a band composed of appellants and one other person, but it was not The Doors. The dissent is perfectly correct that no one reading the advertisement would expect to see, based on the advertisement, Jim Morrison perform. But the advertisement did not state that Morrison would perform. The advertisement falsely stated that the band known as The Doors would perform. Absent from this ruling is any determination of, or even comment about, any one of the trademark/unfair competition claims. Accordingly, we conclude that the trial court’s findings in connection with the cause of action arising under Business and Professions Code section 17500 are not inconsistent with the jury’s verdicts on the trademark/unfair competition claims. It follows therefore that the trial court did not err in issuing the injunction prohibiting use of The Doors name and logo. b. The Trademark, Unfair Competition and Business and Professions Code Section 17200 Claims Were Equitable Claims The broad rules under which it is determined whether an action is legal or equitable are well settled. “The historical test (supra, §114) is useful but not conclusive. New remedies are constantly being created by statute, and in their statutory form were of course unknown to the English court of chancery. To classify all new statutory remedies as legal, rather than equitable, would defeat the purposes of the classification. Accordingly the courts will consider the nature of the new remedy, and thus we have, in practice, a double test: First, look to the English practice for a classification of legal and equitable actions based upon certain differences in nature. Second, if the action is not one of those listed under the old classification, examine its nature and treat it as equitable if it resembles a traditional equitable remedy.” (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 115, p. 181.) Applying these familiar rules to the trademark, unfair competition and Business and Professions Code section 17200, we conclude that all of these claims are equitable in nature. Indeed, as far as the section 17200 claim is concerned, it has been held that there is no right to a jury trial in such a case. (Hodge v. Superior Court (2006) 145 Cal.App.4th 278, 285 [citing authorities].) As far as the trademark and unfair competition claims are concerned, respondents sought the remedy of an injunction, which “is a typical form of equitable relief, and an action in which injunctive relief is sought is a suit in equity. (See St. James Church of Christ Holiness v. Superior Court (1955) 135 C.A.2d 352, 361; [citation].)” (3 Witkin, Cal. Procedure, supra, Actions, § 121, p. 187.) Since these claims were equitable in nature, the trial court was not required to follow the jury’s advisory verdicts on these claims. Thus, even if there is an inconsistency between the jury’s verdicts on these claims, and the trial court’s finding on the Business and Professions Code section 17500 claim, the inconsistency is not fatal to the trial court’s conclusion on the section 17500 claim. 7. The Jury’s Special Verdicts in Favor of Appellants on the Claims for a Breach of the Oral or Implied Old Doors Agreement Are Not Inconsistent with the Judgment Densmore’s fourth cause of action was for a breach of the “oral” Old Doors Agreement, as was the Estates’ eighth cause of action. The ninth cause of action in the Estates’ complaint was for the breach of the “implied in fact” Old Doors Agreement. The jury found for appellants on these three causes of action; appellants contend that these special verdicts are inconsistent with the judgment entered by the court. The jury returned a verdict for Densmore on his claim that appellants breached their fiduciary duties under the Old Doors and DMC Agreements, and a verdict for the Estates on the identical claim. (Respectively, these were the sixth and 10th causes of action.) Thus, the jury chose to enforce the Old Doors Agreement by concluding that appellants and respondents (1) had entered into the Old Doors partnership agreement and (2) that appellants breached their fiduciary duties under that agreement. The jury’s finding that there was no “oral” and/or “implied in fact” Old Doors Agreement is consistent with its finding that there was a written Old Doors Agreement, which appellants had breached. There is no conflict or inconsistency between the verdicts on the “oral” and “implied in fact” Old Doors Agreement and the judgment because (1) the judgment rests on the verdict in favor of respondents on the breach of the written Old Doors Agreement; and (2) the jury’s verdicts on the “oral,” “implied in fact” and written Old Doors Agreement are consistent. 8. Appellants Are Not Entitled to a Judgment Notwithstanding the Verdict on the Estates’ Claim for a Violation of Morrison’s Postmortem Right of Publicity Appellants contend that they were entitled to a judgment notwithstanding the verdict on the Estates’ claim based on Morrison’s postmortem right of publicity under Civil Code section 3344.1. It is undisputed that Morrison’s name, voice and likeness were used by appellants’ band. While the precise characterizations of this use differ, the fact is that there is no question that Morrison’s name, image and voice were used by appellants. In any event, appellants’ contentions regarding this issue concede that Morrison’s name, voice and likeness were used by appellants. Appellants first contend that the use of Morrison’s image and voice was exempt under subdivision (a)(2) of Civil Code section 3344.1 because this use was part of a “musical work.” As respondents correctly point out, subdivision (a)(3) provides that the exemption of subdivision (a)(2) does not apply when, as here, the use constituted an act of advertising performances by appellants’ band. The trial court found that use of Morrison’s name, voice and likeness was part of the overall marketing plan to sell tickets for more than 65 concerts performed during approximately two years. The exemption provided by subdivision (a)(2) does not apply. Appellants also contend that their use of Morrison’s name, voice and likeness was protected by the First Amendment. “We formulate . . . what is essentially a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 391.) In other words, if the likeness is part of a new creation, use of the likeness is protected by the First Amendment. Appellants contend that their use of Morrison’s image was “. . . transformative. It helped transport the concertgoers to the time The Doors were at their zenith, the late ‘60s, without representing that Morrison, who died in 1971, would be appearing at the concert, which, of course, any Doors fan or reasonable attendee would know could not happen.” This argument only confirms that appellants were exploiting Morrison to publicize their concerts in 2003-2004. The Doors of the ‘60’s were in no sense a new creation of appellants’ band of 2003/2004. The only reason to “transport” concertgoers in 2003/2004 to The Doors “at their zenith” was to suggest that the 2003/2004 concerts were, in fact, concerts by The Doors. In that sense, exploiting Morrison was certainly “transformative”; it transformed appellants’ band of 2003/2004 into The Doors. But that is not the kind of transformation the court was referring to in Comedy III Productions, Inc. v. Gary Saderup, Inc. No original work was created by the use of Morrison’s likeness in 2003/2004, i.e., no original work was created with Morrison’s likeness becoming simply one of the components making up that new work. (Comedy III Productions, Inc. v. Gary Saderup, Inc., supra, 25 Cal.4th at p. 406.) All that was created was the mendacious illusion that appellants’ band of 2003/2004 was The Doors. There being no original work, exploitation of Morrison was not protected by the First Amendment. The trial court did not err in denying appellants’ motion for a judgment notwithstanding the verdict. 9. Appellants Misconstrue the Trial Court’s Rulings on Respondents’ Motion for a Preliminary Injunction Appellants contend that the judgment requires them to surrender $3.2 million in profits earned by them “in using the very group name??The Doors Of The 21st Century??that the trial court said they could use. There is nothing legal or equitable in such an incredibly unfair result.” There are four serious flaws in this contention. First. “ request for temporary equitable relief pending the determination of a case on its merits is an entreaty to the court to exercise its discretion and a ruling thereon is not a determination of the merits of the case.” (People ex rel. Bender v. Wind River Mining Project (1990) 219 Cal.App.3d 1390, 1395.)
Second. The purpose of a preliminary injunction “at least theoretically and usually in fact, [is] to preserve the status quo and prevent irreparable harm pending trial on the merits.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) 9:558, p. 9(II)-17 (rev. #1 2007).) We have already noted that, at the time the trial court ruled on the motions for a preliminary injunction, it was required to deal with scheduled performances that had already been advertised. Thus, in April and May 2003 the preservation of the status quo, and the prevention of serious harm to appellants who had committed to the performances, necessarily inclined the trial court to allow the performances to go forward as advertised, especially since the advertisements had already run. In short, the trial court was faced with facts and circumstances in April and May 2003 that were immaterial when it came to the judgment on the merits of the case.
Third. While appellants were permitted to use the name The Doors of the 21st Century by the order denying the preliminary injunction, they should have done so in good faith, and in the terms of the court’s order. Instead, as the trial court found in ruling on the claim under Business and Professions Code section 17500, appellants used the famous logo and prominent type font for The Doors and minimized in small font “of the 21st Century.” (See text, ante, p. 33.) In other words, appellants sabotaged the trial court’s order permitting them to use the name The Doors of The 21st Century. We say sabotaged because the visual impact of The Doors of the 21st Century, especially when the qualifier is removed from The Doors and is on a different line, is quite different from the one permitted by the court’s order.
Fourth. Appellants continue with their misplaced strategy even in this appeal. In their opening brief, they claim that they toured as The Doors of the 21st Century, ignoring the fact that they used the large and traditional font for The Doors and a small font for the qualifier.
Given that the ruling on the preliminary injunction was not a ruling on the merits and that appellants did all they could to subvert the court’s pretrial ruling, we find nothing “unfair,” much less “incredibly unfair” in the result.
We would reach the same conclusion even if appellants had complied with the letter and spirit of the court’s order and toured as The Doors of the 21st Century. Appellants knew that use of The Doors name and logo was in litigation and that the result could be adverse for them. Thus, they used The Doors name at their peril, which they could have avoided by not using it. To suggest that the court’s order of April/May 2003 somehow gave them a license to use The Doors name is to assume, entirely mistakenly, that that order was a ruling on the merits. That order did nothing other than stabilize a difficult and dynamic situation in the spring of 2003.
10. Appellants Were Not Entitled to Compensation Other Than Their Share of the Profits
Appellants contend that it was inequitable for the trial court not to award them compensation, over and above their share of the profits, for their work on the 2003/2004 tour.
In the absence of a provision in the partnership agreement, general partners cannot recover special compensation for services performed on behalf of the partnership. (Broffman v. Newman (1989) 213 Cal.App.3d 252, 258.)
Appellants acknowledge this rule, but claim that the trial court should have taken account of “workload disparity,” especially since Densmore did not participate at all in the 2003/2004 tour.
We find this point of view unpersuasive. The trial court’s function was not to balance the workload, but to balance the equities. Appellants’ decision to perform in 2003/2004 as The Doors was made in the teeth of Densmore’s adamant opposition, which was of course known to appellants and which, given the history of The Doors and Densmore’s attitude toward that history, did not come as a surprise. Appellants well knew the depth and extent of Densmore’s opposition but nevertheless decided to tour as The Doors. They are therefore in a poor position to complain that they did not receive extra compensation for work that Densmore found highly objectionable and that, as it turns out, Densmore was right in finding highly objectionable.
The result may have been different if the 2003/2004 tour went forward with everyone’s blessing and if Densmore nonetheless did not participate in the tour. But that is not what happened, and not the scenario that the trial court was required to address.
11. Appellants Misconstrue the Terms of the Permanent Injunction
Appellants contend that the permanent injunction “precludes [appellants] from using any name that includes the words The Doors,” that this injunction is overbroad and that it therefore violates the First Amendment. Appellants go on to claim that they cannot tour as “The Doors featuring only Ray Manzarek and Robbie Krieger” or “Two of The Doors.” (Italics omitted.)
Appellants have misconstrued the permanent injunction. In relevant part, the injunction provides: “The granting of this permanent injunction does not prevent Krieger and Manzarek from identifying themselves as the founding or original members of The Doors as long as: 1) the names Krieger and Manzarek be listed first either to the left or above any other wording; 2) the words ‘original’ or ‘founding’ and ‘members of The Doors’ are in the same or smaller type font size than the names Krieger and Manzarek; and 3) the name The Doors is not displayed in the classic Doors logo which is the round letters with the diagonal intersections and the ‘wavy gravy’ font for the word ‘the’ displayed on The Doors debut record in 1967 or any font similar in style to the classic Doors logo.”
It is evident that appellants can use the words “The Doors” as long as they adhere to the very specific guidelines of the permanent injunction. Appellants can identify themselves as founding or original members of The Doors and can use the words “The Doors” in the process of doing so. Manzarek and Krieger, however, cannot identify themselves as The Doors. All of which boils down to the fact that Manzarek and Krieger can truthfully state that they are founding or original members of The Doors but cannot misrepresent themselves as The Doors band. While even at this late date appellants strive to identify themselves as The Doors, that name and logo attaches legitimately only to the band composed of Manzarek, Krieger, Densmore and, importantly, Morrison.
We see nothing overbroad in the terms of this injunction.
12. The Prohibition of Using Morrison’s Name, Likeness, Voice or Image To Promote Appellants’ Ban Is Valid
Appellants contend using Morrison’s photos is “merely an adjunct of [appellants’] performances” and that this use is nothing more than an accurate reflection of the historical fact that Morrison was a member of The Doors.
The pertinent part of the injunction provides: “Effective immediately, [appellants] Raymond Manzarek and Robert Krieger are hereby permanently enjoined from using the name, likeness, voice or image of Jim Morrison to promote their band or their concerts.”
k As before, appellants misconstrue the terms of the injunction. 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. The 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. But this is exactly the kind of use that Civil Code section 3344.1 prohibits.
The injunction does not enjoin the use of 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. This is an entirely appropriate, narrowly drawn objective that is fully supported by the jury’s verdict that appellants violated Morrison’s rights under Civil Code section 3344.1.
13. The Jury’s Special Verdicts, the Trial Court’s Statement of Decision and the Judgment Form a Coherent and Internally Consistent Disposition of This Controversy
The first line in appellants’ opening brief is: “It was as if a nine-week jury trial never happened.” After this start, appellants stress throughout their presentation their view that the trial court effectively nullified the verdict, which, according to appellants, was in sum and substance in their favor.
In large part, appellants’ claim that they prevailed at trial is predicated on the jury’s responses to the verdict form’s question “what amount, if any, do you award.” Were it not for the compelling circumstances that show that it was understood that the amount of lost profits would be calculated in the postverdict, equitable accounting proceedings, appellants’ argument would not be off the mark. This said, we find that the proceedings below were coherent, internally consistent and resulted in a fair and equitable judgment.
We begin with the fact that the jury’s special verdicts seized on the critical aspects of the controversy, and resolved them adversely to appellants. These were the jury’s findings that appellants breached the New Doors Agreement between themselves and Densmore and that they breached their fiduciary duties toward respondents, their partners under the Old Doors and DMC Agreements. The meaning and significance of these findings is that appellants breached their obligations vis-à-vis respondents under the only legal instruments that mattered, which were the agreement governing The Doors prior to Morrison’s death, and the agreement that went into effect after his death. The finding under Civil Code section 3344.1 supports the foregoing result.
After the jury found that appellants had breached both the Old and New Doors Agreements, the remaining causes of action were, for the most part, duplicative or, if not duplicative, ancillary and not central to the actual controversy, which was the meaning and effect of the two principal Doors agreements.
This emerges clearly from the circumstance that the jury’s general verdicts on the various causes of action are not inconsistent. In part 7 of the Discussion, we explained why the jury’s verdicts in appellants’ favor on the “oral” and “implied in fact” Old Doors Agreements are consistent with the verdict for respondents for the breach of the written Old Doors Agreement. The remaining verdicts in favor of appellants involve causes of action with elements that are quite distinct from the relatively simple and straightforward causes of action for breach of the (written) Old and New Doors Agreements. The jury could legitimately and correctly conclude that these relatively specialized claims (see fn. 26, ante) were not supported by the evidence, without implicating the finding that appellants had breached the written Old and New Doors Agreements.
The fact that the jury, deliberating for nearly a month, was able to and did distinguish between these multiple claims is a credit to this particular jury.
Continuing with the circumstance that the jury did not return any monetary awards, we have already set forth at length in part 1 of the Discussion that the jury did so because it believed, correctly, that the court would calculate loss of profits. The fact that the jury returned no monetary award on the cross-complaint is explained by the fact that the jury found that appellants had profited by their breaches; to the extent the jury found that Densmore breached his obligations, the profits gained by appellants meant that they had not sustained losses as a result of Densmore’s breaches.
It is also true that the trial court entered a judgment that, with one exception, incorporated all of the jury’s verdicts. That exception was the claim in the cross-complaint based on promissory estoppel. The trial court’s disposition of this claim was correct, as we have explained in part 4 of the Discussion. In any event, a difference of opinion on one claim in a case of this complexity is a minor matter. As far as the first and second causes of the cross-complaint are concerned, since the jury found that appellants had not sustained damages under these causes of action, the court was required to enter judgment for Densmore on these claims.
The fundamental fact is that the judgment is congruent with the special verdicts.
The monetary awards entered by the trial court were based on solid evidence and, as we have observed, the injunctive relief was precise, narrowly tailored and goes to the heart of the matter.
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
FLIER, J.
I concur:
COOPER, P. J.
EGERTON, J., Concurring and Dissenting:
I concur in the result in part 8 of Discussion in the majority opinion. From the rest of the opinion, I respectfully dissent.
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