Parsons v. Tickner
Decision Date | 02 February 1995 |
Docket Number | No. B074550,B074550 |
Citation | 37 Cal.Rptr.2d 810,31 Cal.App.4th 1513 |
Court | California Court of Appeals |
Parties | Polly PARSONS, Plaintiff and Appellant, v. Edward TICKNER et al., Defendants and Respondents. |
Neville L. Johnson, Los Angeles, and D. Victoria LaBrie, Santa Monica, for plaintiff and appellant.
Berry & Cahalan, James H. Berry, Jr., W. Paul Baskett, Los Angeles, Neal & Harwell, Robert L. Sullivan, Nashville, TN, Arthur M. Wilkof, Los Angeles, and Alan Diamond, Santa Monica, for defendants and respondents.
Appellant Polly Parsons appeals from the judgments of dismissal entered upon orders sustaining without leave to amend the general demurrer of respondents Edward Tickner, James Dickson, Edward Tickner, and James Dickson doing business as Tickner Dickson Music, Len Freedman, and Len Freedman doing business as Len Freeman Music (hereinafter collectively referred to as the Tickner respondents) to her first amended complaint and the general demurrer of respondent Gretchen L. Parsons to her second amended complaint. We reverse because we find appellant has sufficiently pled her causes of action.
The seventeenth through twenty-second causes of action of the first amended complaint alleged against the Tickner respondents are labeled fraud and deceit, breach of fiduciary duty, constructive fraud, breach of oral contract, rescission of oral contract, and conversion. Stripped to their essential parts, those claims can be collectively summarized as follows:
Gram Parsons was a musician and composer of country rock music. In 1972, he entered into an agreement with Edward Tickner and James Dickson to manage his musical career. A company called Wait & See Music was formed to publish and promote Parsons's music. Parsons was the owner of Wait & See Music; the role of Tickner and Dickson was to collect the royalties due Parsons. Parsons never transferred any copyrights for his music to either Tickner or Dickson. Nevertheless, when Parsons died in 1973, Tickner and Dickson wrongfully converted Wait & See and its catalog of Parsons's songs to their own company, "Tickson Music," and proceeded to exploit the Wait & See catalog for their own economic advantage.
Following Parsons's death intestate, probate proceedings were opened on September 20, 1973, in the Los Angeles Superior Court. Parsons was survived by his wife, respondent Gretchen Parsons, and his daughter from a prior marriage, appellant Polly Parsons. Gretchen Parsons was appointed administrator of his estate.
Among the personal property inventoried in the estate were writer's royalty rights for the music composed by Gram Parsons. The royalty rights refer to contracts scheduled in the inventory according to the name of the publisher, the royalty percentage, and the respective catalog of songs. The contracts provide for distribution to the composer (e.g., Parsons) a percentage of the income generated by recording, production, and other uses of the songs in a catalog.
One of the royalty contracts scheduled in the inventory involved songs published by Wait & See. The catalog had 11 songs, and royalty percentages ranged from 37.5 percent to 75 percent.
On December 11, 1985, Gretchen Parsons, individually and as administrator of the estate, entered into a stipulation with Polly Parsons to settle and to resolve all objections to the filing of the first and final accounting and to provide for the closing of the estate and final distribution of assets. The stipulation provided that Gretchen Parsons and Polly Parsons would each receive one-half of all future income from the inventoried royalty contracts, including those published by Wait & See.
The stipulation also provided that any unmarshalled assets, any after-discovered assets, and any assets not shown on the inventory of the estate were distributed to Polly Parsons "as to a 100% interest therein." The stipulation was approved and included in the December 11, 1985, order settling the first and final report in the following terms: "... as to any unmarshaled, after-discovered or unknown assets, that is, assets which have not been inventoried in the estate or otherwise shown on the accountings on file, ... said assets be and hereby are distributed to Polly A. Parsons in their entirety, and Gretchen L. Parsons shall have no interest therein."
The first amended complaint further alleges that Tickner and Dickson concealed the fact that Gram Parsons had never transferred any interest in the Wait & See catalog of songs to them, and instead had falsely represented to Gretchen Parsons and Polly Parsons that they (Tickner and Dickson) were entitled to publish the catalog, subject only to the limited obligation to distribute to the estate and heirs specified royalty payments. Neither Gretchen Parsons nor Polly Parsons became aware of Tickner's and Dickson's unlawful exploitations of the Wait & See catalog until June of 1991 when respondent Freedman, the alleged purchaser of the Wait & See catalog, informed Polly Parsons's attorney that there were no documents or agreements transferring Gram Parsons's copyrighted compositions either to Tickner and Dickson or to him (Freedman).
Thus, it can be seen that the operative allegations of the first amended complaint are: (1) Gram Parsons never transferred any copyrights for the songs contained in the Wait & See catalog to Tickner and Dickson; (2) the Tickner respondents fraudulently concealed from Gram Parsons's estate and heirs, including Polly Parsons, that no transfer had ever occurred; (3) the Tickner respondents falsely represented they were the publishers of the Wait & See catalog and were only obligated to distribute a specified percentage royalty to the estate and heirs; and (4) Tickner and Dickson commercially exploited the Wait & See catalog for their own benefit.
Polly Parsons alleges that the Wait & See catalog is an unmarshalled, uninventoried, and after-discovered asset of Gram Parsons's estate within the terms of the stipulation, so that she has a 100 percent interest therein and the right to receive all revenues generated from the promotion of its songs. Polly Parsons seeks a declaration of her ownership to the Wait & See catalog and a return of all earned revenues, royalties, and income received by Tickner, Dickson, and Freedman.
Her first amended complaint further alleged that the Tickner respondents entered into an oral management agreement with Gram Parsons, thereby creating a fiduciary relationship. The complaint asserted Gram Parsons was "particularly vulnerable" to respondents because he was "unsophisticated in business and often intoxicated," a drug addict, and "oblivious to business practices, and relied on others to handle his business affairs." Consistent with her other allegations, Polly Parsons alleged that respondents, in whom Gram Parsons reposed total trust, breached their fiduciary duties by, inter alia, actively concealing from him the true facts of his business affairs and wrongfully appropriating the Wait & See catalog for their own benefit.
As to each cause of action, the Tickner respondents demurred on the grounds of lack of the legal capacity to sue, failure to state facts sufficient to constitute a cause of action, uncertainty and failure to allege if the management agreement was oral or implied. (Code Civ.Proc., § 430.10, subds. (b), (e), (g).)
In reviewing the sufficiency of the complaint against the Tickner respondents' demurrer, we must treat the demurrer as admitting all allegations of the complaint as true. As it is settled law that in evaluating the sufficiency of a complaint against a demurrer a court will consider matters that may be judicially noticed, we will also take judicial notice of the probate proceeding as it was properly noticed by the trial court. (Evid.Code, § 459, subds. (a) & (b).) (Javor v. State Board of Equalization (1974) 12 Cal.3d 790, 796, 117 Cal.Rptr. 305, 527 P.2d 1153.)
"On demurrer, it is not the function of a trial court, or of this court, to speculate on the ability of a plaintiff to support, at trial, allegations well pleaded." (Meyer v. Graphic Arts International Union (1979) 88 Cal.App.3d 176, 179, 151 Cal.Rptr. 597.) As a reviewing court, we are not bound by the construction of the pleadings by the trial court, but we make our own independent judgment of the sufficiency of the complaint. (Miller v. Bakersfield News-Bulletin, Inc. (1975) 44 Cal.App.3d 899, 901, 119 Cal.Rptr. 92.) Applying these well-settled principles, we shall review the sufficiency of appellant's pleadings.
The Tickner respondents generally demurred on the ground that Polly Parsons lacked the legal capacity to sue. They relied on Probate Code section 573, subdivision (a) which had provided that "no cause of action is lost by reason of the death of any person, but may be maintained by ... the [deceased's] personal representative." They contended that if Polly Parsons's premise that Gram Parsons never transferred the copyrighted compositions contained in the Wait & See catalog to Tickner and Dickson was correct, the catalog was after-discovered and uninventoried property and that the claim for that class of property could only be brought by a personal representative in a supplemental administration. (Prob.Code, §§ 573 and 12252.) 1 Their contention fails because the law no longer requires the appointment of a personal representative.
Prior to the January 1993 hearing on the demurrer, Probate Code section 573, subdivision (a) was repealed and replaced by Code of Civil Procedure sections 377.10 through 377.35 as part of a comprehensive revision of the law pertaining to the survival and continuation of actions belonging to decedents. It is apparent from the record that the parties were totally unaware of this change in the law....
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