WINCHESTER DRIVE-IN TH. v. Twentieth Century-Fox Film Co.

• Decision Date: 01 July 1964
• Docket Number: No. 39632.,39632.
• Citation: 232 F. Supp. 556
• Court: U.S. District Court — Northern District of California
• Parties: WINCHESTER DRIVE-IN THEATRE, INC., et al., Plaintiffs, v. TWENTIETH CENTURY-FOX FILM COMPANY et al., Defendants.

232 F. Supp. 556

WINCHESTER DRIVE-IN THEATRE, INC., et al., Plaintiffs, v. TWENTIETH CENTURY-FOX FILM COMPANY et al., Defendants.

No. 39632.

United States District Court N. D. California, S. D.

July 1, 1964.

Joseph L. Alioto, G. Joseph Bertain, Jr., San Francisco, Cal., for plaintiffs.

Pillsbury, Madison & Sutro, John A. Sutro, John B. Bates, Allan N. Littman, William I. Edlund, San Francisco, Cal., for defendant distributors Paramount Film Distributing Corp., Metro-Goldwyn-Mayer, Inc., Twentieth Century-Fox Film Corp., Warner Bros. Pictures Distributing Corp., Universal Film Exchanges, Inc., and Buena Vista Distribution Co., Inc.

Roy W. McDonald, New York, for defendant and third-party plaintiff Buena Vista Distribution Co., Inc.

Morrison, Foerster, Holloway, Clinton & Clark, Robert D. Raven, San Francisco, Cal., for Blumenfeld Enterprises, Inc.

ZIRPOLI, District Judge.

This is an antitrust action involving the distribution practices of several motion picture distributors in the northern California area. Plaintiffs are several corporations controlled by Raymond J. Syufy and Syufy Enterprises (hereinafter occasionally referred to as "Syufy"), which own and operate drive-in theatres in northern California. The defendants Paramount Film Distributing Corporation, Universal Film Exchanges, Inc., Twentieth Century-Fox Film Corporation, Metro-Goldwyn-Mayer, Inc. and Buena Vista Film Distribution Co., Inc. are distributors of motion pictures. Defendants Blumenfeld Enterprises, Inc. and Fox West Coast Theatres Corporation (not a party to this motion) are exhibitors that own and operate indoor theatres. Plaintiffs allege in their complaint that defendants conspired in violation of the antitrust laws to deprive plaintiffs of the opportunity to compete with indoor theatres for the exhibition of first run motion pictures.

Defendants moved pursuant to Rule 56 (b) of the Federal Rules of Civil Procedure for partial summary judgment on all claims for damages arising from conduct of the defendants prior to August 13, 1959. Defendants contend that because of the general rule that a release of one tortfeasor releases all joint tortfeasors, the "General Release" in favor of Fox released the moving defendants from all claims arising prior to August 13, 1959.

The history of this litigation is complicated and need not be set out in full here. The following factual background is sufficient for purposes of this motion: On November 8, 1958 some of the Syufy corporations filed an antitrust action in this district against Fox West Coast Theatres, Inc. and United Artists Theatre Circuit, Inc. (Civil Action No. 37792). This case will hereinafter be referred to as the "Rancho case", as distinguished from the present case, which will occasionally be referred to as the "Winchester case". On May 11, 1959 the plaintiffs in the Rancho case executed with Fox a document entitled "Agreement for Dismissal of Action and General Release", which provided in pertinent part as follows:

"WHEREAS, there is pending in the United States District Court for the Northern District of California that certain action filed by Rancho Drive In Theatre Corp., against Fox and others; and

"WHEREAS, various disputes have from time to time arisen between some or all of the Releasors and the Releasees described in Exhibit `B' hereto annexed including Fox and Syufy; and

"WHEREAS, by agreement executed concurrently herewith Fox has entered into an agreement to sell to the nominee of Syufy certain assets of Fox; and

"WHEREAS, the parties hereto have agreed to compose, sic settle and discharge all pending litigation and disputes among them or some of them; and

"WHEREAS, all of said Releasors are or have been controlled, directly or indirectly, by Raymond J. Syufy, and said Releasees are or have been directly or indirectly affiliated with Fox;

"NOW, THEREFORE, IT IS AGREED by and between the parties hereto as follows:

"1. Syufy agrees to procure and deliver to Fox forthwith the following documents:

"(a) Three copies of a stipulation in form as attached hereto as Exhibit `A' executed by duly authorized counsel for Rancho Drive In Theatre Corp., a California corporation, plaintiff in that certain action pending in the United States District Court for the Northern District of California, Southern Division, entitled `Rancho Drive In Theatre Corp., Plaintiff, v. Fox West Coast Theatres Corp. and United Artists Theatre Circuit, Inc., Defendants', being No. 37792 in the files of said court.

"(b) Three copies of a release in form as attached hereto as Exhibit `B' duly executed by each and every Releasor named therein."

On June 8, 1959 Syufy executed the release referred to in the above quotation, and this release was limited by its terms to the Rancho case.¹ Thereafter, on August 13, 1959 Syufy executed another release in favor of Fox, which is the "General Release" claimed by defendants to discharge them from liability in the present motion. This latter release is very general and provides that:

"For and in consideration of the sum of $3,200.00 paid by Releasees to Raymond Syufy (who is hereby authorized by each Releasor to receive said sum on his, her, and its behalf) Releasors, and each of them release and discharge Releasees, and each of them, from any and all claims, demands or causes of action, known or unknown, against Releasees, or any of them, which Releasors, or any of them, now own or hold, have at any time heretofore owned or held, or may at any time hereafter own or hold, by reason of any matter, cause or thing whatsoever done, omitted or suffered to be done prior to the date of this instrument."

Over a year after this release was executed, Syufy filed on December 28, 1960 the present Winchester case.

On February 6, 1963 certain defendants in the Winchester case filed the first motion for partial summary judgment on the ground that the August release discharged them from liability as joint tortfeasors for damages resulting from their conduct prior to August 13, 1959. This Court in its order of March 6, 1963 denied this motion on the ground that it could not find as a matter of law that the August release discharged the defendants in the Winchester case. The Court ruled that there was a question of fact as to whether the May and June documents, which were limited by their terms to the Rancho case, should be read together with the August release as "one document".

Since the Court's prior ruling, the attorneys for plaintiffs and Fox filed a written stipulation executed by them on April 22, 1964 in the Winchester case as follows:

"IT IS HEREBY STIPULATED by and between all of the plaintiffs herein and defendant FOX WEST COAST THEATRES CORPORATION, by and through their respective counsel, that plaintiffs are seeking no damages from defendant FOX WEST COAST THEATRES CORPORATION for the period prior to August 13, 1959, said date being the date of a General Release executed by plaintiffs and on their behalf to said defendant, and attached as Exhibit B to the answer of said defendant on file herein."

Also on April 22, 1964 counsel for plaintiffs orally stipulated with counsel for defendants other than Fox that the August release released any and all claims against Fox for the period prior to August 13, 1959;² however, counsel also added the following qualification to the oral stipulation:

"MR. LITTMAN: As it pertains to all the corporations signatory to the release, is that the stipulation?

"MR. BERTAIN: Yes. Unless I am missing something, Your Honor, which I will have to check out, this is my understanding of the law and of the release.

"THE COURT: All right.

"MR. BERTAIN: But I would not want to be prejudiced in case I make a mistake on it.

"THE COURT: Well, that is your present stipulation, anyway.

"MR. BERTAIN: Right."

Counsel for Syufy has asked leave of court to correct the oral stipulation to provide that the August release be applied only to claims by the Rancho Drive-In Theatre (one of the plaintiff corporations). The Court cannot correct the stipulation because a stipulation requires assent of both parties, and counsel for defendants have not assented to the new terms; however, in light of the qualification to the stipulation, the Court must relieve counsel of the oral stipulation's binding effect. Of course, the Court's removal of the oral stipulation does not alter the binding effect of the written stipulation.

I. The effect of the prior order of March 6, 1963 on the present motion for partial summary judgment.

The prior order is not the "law of the case", insofar as the present motion is concerned, for two reasons: First, upon re-examination of the prior order in light of the record as of March 6, 1963, the Court finds that it was in error when it ruled that there was a question of fact as to whether the May and June documents should be read together with the August release as "one document", and therefore this ruling of its prior order is modified in the manner hereinafter stated. Second, the change in the record of March 6, 1963 by the written stipulation of April 22, 1964 removes any question of fact as to whether the August release was intended to apply solely to the Rancho case.

With respect to the first reason, the basis of the prior ruling, as noted above, was that the Court found a question of fact as to whether the August release could be read as "one instrument" with the earlier May and June documents. The August release does not refer to the May and June documents or the Rancho case; nor do the May and June documents refer to the August release. Because the June release releases Fox from all liability in the Rancho case, the August release is meaningless unless it is construed to apply to claims other than the Rancho case. Therefore, the March 6, 1963 order is modified insofar as it holds that there is a factual issue as to whether the August release applies solely to the Rancho case.

With respect to the second and alternative...