FILED
San Francisco County Superlor Court
JUN 29 1987
DONALD w. DICKINSON. Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
MARTYN BUCHWALD, et al., Consolidated Nos.
572030, 607370, 614027
Plaintiffs,
FINDINGS OF FACT,
v. CONCLUSIONS OF LAW AND
ORDER OF DISMISSAL WITH
MATTHEW KATZ, PREJUDICE
Defendant.
AND RELATED CROSS-ACTIONS
This matter came on regularly for hearing on April
30, 1987, in Department 2 of the above-entitled Court, the
Honorable Ollie Marie-victoire presiding, on the motion of
BMG Music and BMG Music, Inc. (formerly the RCA Records
Division of RCA Corporation, and RCA, Inc., and hereinafter
collectively called "BMG") to dismiss these consolidated
actions for lack of prosecution. The written briefs and
supporting declarations of the parties having been
considered, and oral argument of counsel having been heard,
and good cause therefor appearing, the Court accordingly
makes the following findings of fact, conclusions of law and
orders herein:
FINDINGS OF FACT
1. The original of the three consolidated actions
comprising this case, entitled Buchwald v. Katz (Civil
No. 572,030) was filed in this Court on October 21, 1966. In
that action, original members of the rock band known then as
the Jefferson Airplane sought to rescind their management
contracts with Matthew Katz, the defendant. Plaintiffs in
that action were band members Martyn Buchwald, Paul Kantner,
Jorma L. Kaukonen, Jr., John Wllllam Casady, and Slgne
Anderson.
2. The second action, also entitled Buchwald v.
Katz (No. 607,370) was filed on August 26, 1969, by the named
plaintiffs in the first action plus Spencer Dryden, another
Jefferson Airplane band member. The second action sought
cancellation of certain publishing agreements between the
plaintiffs and Matthew Katz.--
3. The third action, Katz v. Buchwald, et al.
(No. 614027} was an appeal by Matthew Katz from a ruling of
the Labor Commissioner that, since Katz had acted as an
unlicensed artist's manager, the management and publishing
contracts between him and the Jefferson Airplane band members
were void. The third case was initiated by Katz's filing on
February 27, 1970, of a notice of appeal from the Labor
Commissioner's Determination and Award.
4. In 1973, Katz filed cross-complaints in two of
the actions seeking, among other things, an accounting of the
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mechanical (publishing) royalties attributable to songs
composed and performed by Jefferson Airplane band members.
Among other cross-defendants, Katz sued BMG, which had
manufactured, distributed and sold the Jefferson Airplane's
albums. BMG thereupon froze payments of mechanical royalties
to the copyright owners of various compositions written and
performed by the Jefferson Airplane, and certain producer
royalties to Katz.
5. The three actions, including all cross-
complaints, were consolidated for all purposes on August 8,
1975. The actions proceeded to trial before Judge Harry Low
in January, 1977. Judge Low ordered the trial to be held in
phases, the first of which addressed the questions of whether
Katz had acted as an unlicensed talent agent with respect to
each member of the band, and whether the management and
publishing agreements between Katz and the band members were
void or had been validly rescinded. In March, 1977, the jury
held that Katz's management contracts with plaintiffs
Buchwald, Kantner and Kaukonen were not void because of fraud
or because of Katz's status as an unlicensed artist's
manager. However, the jury held that Katz' management
contracts with plaintiffs Anderson and Casady were validly
rescinded because they had been obtained by fraud. Likewise,
the publishing agreements were found to have been obtained by
Katz in violation of his fiduciary responsibilities to all of
the plaintiffs, and were also validly rescinded.
6. In a pre-trial order filed August 16, 1978,
Judge Low ordered the next phase of the trial to commence on
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I January 15, 1979. The only discovery which took place after
2 the first phase of trial was the service of one set of
3 interrogatories to each of three defendants by Katz in
4 October, 1978.
5 7. The second phase of the trial never occurred.
6 No further efforts were taken to bring this action to trial
7 until July, 1986, when Katz's counsel filed a motion to
8 advance for trial. That motion was denied.
9 8. Settlement discussions occurred among the
10 parties at various times, confined principally to the period
11 between January, 1982 and April, 1985. No settlement
12 agreement was, however, ever reached. From the
13 correspondence attached to the declaration of Mr. Katz in
14 opposition to the motion to dismiss, it is apparent that Mr.
15 Katz himself sabotaged the settlement negotiations by making
16 ever-changing and unreasonable demands.
17 9. Mr. Katz has hired and fired a series of
18 attorneys during the course ~f the litigation. This appears
19 to have contributed to the extraordinary delay in prosecution
20 which has occurred.
21 10. Although Mr. Katz himself executed a
22 stipulation in 1972 waiving the three- and five-year
23 dismissal statutes with respect to the two actions brought by
24 the Jefferson Airplane band members, he himself made no
25 effort to secure a similar stipulation at any time, even
26 during the pendency of the settlement discussions.
27 11. Mr. Katz has made no attempt to explain the
28 delay which has occurred since phase I of the trial other
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1 than to contend that he was lulled into a false sense of
2 security by the settlement negotiations which took place.
3 12. Finally, Mr. Katz has not even been diligent
4 in opposing the present motion in that his responsive papers
5 were untimely under Rule 373(b) of the Rules of Court.
6 13. BMG was joined in its motion by each of the
7 Jefferson Airplane band members. The moving parties
8 submitted declarations establishing that they would be
9 prejudiced if this matter were now brought to trial almost 21
10 years after it was originally filed, and that they had been
II substantially prejudiced by being deprived of the copyright
12 royalties which have been accumulated and not paid over the
13 last 20 years.
14 14. BMG will not enjoy a windfall of royalties if
15 these actions are dismissed. Instead, BMG's motion was
16 conditioned on its offer to disburse the accumulated
17 royalties, less loans and advances made, to the Jefferson
18 Airplane band members and to Mr. Katz as their interests
19 appear.
20 CONCLUSIONS OF LAW
21 1. Discretionary dismissal for delay in
22 prosecution is an inherent power of the Court. Code of civil
23 Procedure §583.150; Blue ChiD EnterDrises. Inc. v. Brentwood
24 Savinqs & Loan Association (1977) 71 Cal.App. 706.
25 2. Dismissal for delay in prosecution is
26 appropriate where, as in this case, the delay has been so
27 long that a fair trial is unlikely. It is unreasonable,
28 unfair and almost impossible to expect witnesses to recall
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~
I today incidents, events, conversations and observations which
2 occurred prior to 1966.
3 3. Prejudice to the litigants in the event of a
4 trial would be further exacerbated here, where the issues to
5 be tried are complex, where key employees of BMG have moved
6 away and where, even by Mr. Katz's own admission, documents
7 have been lost or destroyed.
8 4. The settlement discussions which occurred in
9 this case do not adequately excuse the delay in prosecution,
10 particularly where Mr. Katz made no effort to secure a waiver
11 of the dismissal statutes notwithstanding his execution of
12 such a waiver in favor of the plaintiffs in 1972.
13 Accordingly, it is ORDERED, ADJUDGED AND DECREED as
14 follows:
15 1. Actions No. 572,030, 607,270 and 614,027 are
16 hereby dismissed with prejudice.
17 2. BMG Music and BMG Music, Inc. shall pay
18 publishing royalties in th~ amounts shown on Exhibit A
19 hereto, less any advances or loans made, to the entities
20 identified in said exhibit, or to such other entity or
21 entities as may be designated by the Jefferson Airplane band
22 members.
23 3. BMG Music and BMG Music, Inc. shall pay
24 Matthew Katz, or his designee, accumulated publishing and
25 producer royalties, in the amounts shown on Exhibit B.
26 4. The foregoing payments shall be made by BMG
27 Music and BMG Music, Inc. to all payees within sixty (60)
28 days following the date judgment in accordance with this
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order becomes final and nonappealable. BMG music and BMG
Music, Inc, shall have the option of paying the amounts owed
any payee prior to said date upon said payee's execution of a
stipulation or release waiving said payee's tights to contest
this order
Dated June 25, 1987
(signed)
Ollie Marie-Victoire
Judge of The Superior Court
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Exhibit A -Jefferson Airplane
CoRYriaht Royalties Accumulated by BMG Music
Account/Publisher Amount1l
Bosso Fataka $ 94,183.30
(a partnership of Casady
and Kaukonen)
Diamondback Music Company 4,025.32
(a d/b/a of Buchwald's)
Dump Music, Inc. 96,450.36
(owned by various Airplane
parties)
Fish-Scent Music Company 89,511.70
(a partnership of Casady
and Kaukonen)
God Tunes 129,954.20
(a d/b/a of Kantner's)
Jefferson Airplane Pending/
Ice Bag corporation 863,976.12
(owned by various Airplane
parties)
Mole Music 75,277.28
(a d/b/a of Slick's)
11 Figures are through the accounting periods ending
November 30, 1986 for U.S. (BMG Music) and September 30, 1986
for Canada (BMG Music, Inc.) .BMG Music and BMG Music, Inc.
have agreed with the plaintiffs to withhold from payment
twenty percent (20%) of the monies otherwise payable to
plaintiffs Buchwald, Kantner and Kaukonen, to be released in
the event judgment in accordance with the order of dismissal
of which this exhibit is a part becomes final and non-
appealable, or is upheld following appeal, and said reserve
shall be deducted from the above royalties.
Exhibit B -Copyright and Producer Royalties
Accumulated by BMG Music for Matthew Katz Entities
Account
After You Publishing Company $65,210.1011
(owned by Katz)
Matthew Katz Productions 65,614.94£1
(owned by Katz)
11 Through the accounting periods ending November 30, 1986
for the United States (BMG Music) and September 30, 1986 for
Canada (BMG Music, Inc.) .
£I Through August 31, 1986.
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