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I saw the dress rehearsal tonight. Themes of romance, adventure, politics, religion, fear, angst, greed, consumerism, with music and dance numbers, and ironic satire surprisingly sophisticated. And some very graceful dance numbers guaranteed to get the teen hormones boiling.

The kids are great! Please go support them.



Alright, I now have a nine page ruling from the Honorable James R. Warren. I have to read it and digest it, but the essence is on page 3:

After careful consideration of the record, the briefs and arguments of the parties, and his own independent research, the Referee finds that disputed issues of material fact do exist and that summary adjudication would be inappropriate on this record. The motion for summary adjudication is DENIED.

I’m going to get my kids to bed, read the thing, and maybe get to some analysis later on tonight.


Update – some highlights:

The ruling begins by reviewing the factual issues, which have been discussed in great detail on these threads. There is of course a difference of opinion as to the interpretation of the provision of the Lease agreement which says that PP shall be the producer. The referee ruled that both interpretations are reasonable and therefor Dimmick’s objection to the introduction of extrinsic evidence was overruled. The ruling then moves into the e-mails and communications between Tom Dimmick and Carol Bruno, and communications with the Mateel during the latter part of 2006. You’ve read them here. The ruling showcases the following e-mail of October 12, 2006:

What I am finally realizing (MCC) has been what has been preventing me from freedom of flight, not (ROR). Tom (Dimmick) you are right. Let’s do (ROR), but not do (MCC).

The ruling then references Tom’s letter to the MCC in which he advised that Carol had tol him that she would not under any circumstances produce the show for the “current (MCC) administration.” However, she denied having said that in her deposition. So you already have a material contradiction between Tom and Carol, which by itself establishes a “triable issue of fact” probably sufficient to have defeated the motion.

The ruling also cites an e-mail from Tom to Carol dated October 11, 2006 stating “I’m still hesitant to mention the possibility of the MCC letting go of the event. This could boil down to a race to get a permit for the first weekend in August and I’d like a headstart…”

The Mateel cited those communications and others (including the famous statement at the general meeting) as evidence of anticipatory repudiation which allowed them to terminate the production contract. The Mateel then argued that the subsequent communications in which Carol indicated that she was going to honor her contractual obligations were intended to delay to the point where it would be too late to hire an alternative producer and back them into a negotiating corner in which the Mateel would be forced to accept the license arrangement she had previously offered. The Referee was unable to draw any conclusions either way from the evidence presented and suggested that either side may prevail in the long run. But the Referee appears to read significance into the fact that Carol’s assurances that she would perform came 2 1/2 months after her e-mail to Dimmick.

From the ruling:

MCC terminated its Production Contract with PP on December 28, 2006. For reasons not explained on this record, although he viewed this cancellation as a material breach, Dimmick waited three weeks before he terminated the Lease with MCC. During that interim, MCC notified Dimmick that it had found a new production manager, Boots Hughston, to produce ROR in 2007. MCC assigns this delay as further proof of misconduct on the part of Dimmick/Bruno.

The paragraph is footnoted to the following remarks:

MCC points to evidence showing that Dimmick and Bruno negotiated with the owners of French’s Camp, where the festival had previously been held, to obtain a sublease that might be used to support ROR in its new location. MCC said it knew about these negotiations, but was under the impression that the sublease would be in MCC’s name. Instead the sublease was in Dimmick’s name, which MCC asserts is further proof of the Bruno/Dimmic conspiracy to force MCC out of the ROR festival.

He doesn’t analyze the claims further, but cites them as significant. He’s taking them seriously, and this is probably where the motion was defeated.

The ruling moves into the “30-day cure” argument from Tom.

Dimmick next argues that, even if MCC tried to cancel the Production Contract, it failed to do so because it did not give the “30-day cure” period call for by Paragraph XVI of that contract. There are several problems with this postion. First, there is a serious question as to whether Dimmick, who was not a party to the Production Contract, can argue that MCC failed to follow its procedures when it purported to cancel the contract as to PP, who was a party. SEcond, there is a question about whether, under the circumstances of the “fall out” between the parties, a 30 day cure period could have been effective under the circumstances in any event. In this connection, MCC argues – and there is evidence to support the point – the alleged “conspiracy” between Dimmick and Bruno/PP was timed to make it impossible for MCC to do anything other than accept Bruno’s offer of a “mutual separation,” even if MCC didn’t otherwise wish to do so.

Third, and perhaps most significant in the context of this motion, MCC argues that its letter to Bruno/PP of November 4, 2007 constituted the required notice of breach and notice to cure. If this is so, MCC urges, then the 30 (sic) “cure” period pass without Bruno/PP providing any assurances that it would live up to its contractual obligations.

The Referee goes on to state that maybe evidence will show that the November 4 letter was inadequate on its face as a matter of law, but suggested that the question may be moot depending on how Carol viewed the letter. Was the late December letter an attempt to “cure” before she got notice? If so, it was after the 30 days and thus the Mateel had the right to terminate at any time notwithstanding the late hour promises. The Referee suggests that Tom is going to have to bolster his case prior to trial, but you’d think he threw everything he had into the motion. Of course, discovery is continuing and the Mateel just recently sent off a volley of new deposition notices. Presumably Tom will follow suit.

So basically, this is good news for the Mateel. But they haven’t won. Tom has simply received a strong message from the referee that he could in fact lose this thing.

Let’s hope it brings everybody back to the table with some movement.

Addendum: Word has it arbitration will be held in February.

UPDATE: Bob Doran has the decision posted.

So far I can find no coverage in either of the daily papers. Give it a day or two.

Heraldo criticizes KMUD for sloppy homework. Or I guess, skipping out on homework altogether.

KMUD is seriously grounded for the weekend!


November 2007