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<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=3 height=80 BGCOLOR="#000000" TEXT="#F7F7FF" bgproperties="fixed" background="07700500dvldtc.gif"> <div> former beach boys guitarist rides new wave into sea of litigation </div> </td> </tr><tr> <td valign="top" rowspan="2" width=210 BGCOLOR="#000000" TEXT="#F7F7FF" background="078d2c00dvldtc.gif"> <div> <A HREF="index.htm" TARGET="_top" TITLE="Law Offices of Jeffrey S. 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On Oct. 6, the Big Kahunas of the U.S. Supreme Court sided with the 9th, kicking sand in Jardine's face by refusing to hear his appeal of the Circuit Court's ruling.</div> <bR> <div> That earlier decision prohibited Jardine from using variants of the words "Beach Boy" to promote his own, separate touring career. Jardine split from the band in 1998 after the band's lead singer, Mike Love, said he no longer wanted to perform with Jardine, according to court papers.</div> <bR> <div> The appellate decisions, which upheld a permanent injunction issued by a District Court judge, appeared to end a 1999 lawsuit brought against Jardine by Brother Records Inc., the Beach Boys corporate entity that holds the trademark to the band's name. Ironically, Jardine holds a 25 percent stake in Brother Records. However, he has been outvoted consistently by other members of the board, who believed Love was the better-known and more talented member of the original group, according to Brother attorney Edwin F. McPherson.</div> <bR> <div> At any rate, for three weeks last month it was possible to believe that the well-publicized litigation war between surviving members of the Beach Boys and their heirs was over. (Two members of the group, brothers Carl and Dennis Wilson, are dead.) But, as if to prove that litigation never dies, it mutates, the state's 2nd District Court of Appeal last week rescued Jardine from lawsuit oblivion. <I>Jardine v. Love</I>, BC253348 (Cal. App. 2nd Dist., Oct. 29, 2003). </div> <bR> <div> The appellate court ruled Oct. 29 that a breach of fiduciary duty lawsuit brought by Jardine against Love and other Beach Boy corporate stakeholders had been dismissed improperly on a demurrer. Jardine's suit contended that by favoring Love, Brother Records' board had excluded him from lucrative income streams.</div> <bR> <div> Last week's ruling overturned a decision by Los Angeles Superior Court Judge James R. Dunn, who had ruled that issues raised by Jardine's state suit had already been litigated in the federal case. Not so, the appellate court ruled in an unpublished 3-0 decision. The justices held that Jardine had raised a different primary right in the state suit than the primary right he raised in the federal action.</div> <bR> <div> Jardine "argued that under the primary rights theory his claims were not barred, since his primary right in the federal court lawsuit was the right to perform under his employment contract with BRI, while his primary right in the state court lawsuit was the right to have respondents perform rather than breach the fiduciary duties they owed to Jardine as a minority shareholder in BRI," the decision explained.</div> <bR> <div> Putting a different spin on the board's behavior than McPherson, Jardine had argued that he was a minority shareholder because the other Brother Records board members, who controlled 75 percent of the stock and acted as a block, had ganged up on him to his financial detriment.</div> <bR> <div> The justices agreed that Jardine could bring a breach of fiduciary duty claim against Love and other individual defendants who sit on the Brother Records board.</div> <bR> <div> Jardine's attorney Jeffrey S. Benice told me the state appellate decision could pave the way for his client to go to trial and ultimately recover an estimated $8 million to $10 million owed to Jardine as his share of income generated by official Beach Boy concerts and other activities.</div> <bR> <div> McPherson downplayed Jardine's new lease on life. He said Love and his allies on the Brother Records board may authorize an appeal of last week's ruling to the state Supreme Court. Moreover, McPherson said he intends to move for case dismissal on summary judgment, the next step down the litigation line. But McPherson conceded that Jardine has won plenty of room to maneuver and that the state case now could go on for some time. </div> <bR> <div> Meanwhile, the so-called "deposition from hell" that I wrote about last week will not be cut short. In a victory for the defense, a state appellate court denied a petition by plaintiffs' attorneys for a halt to the deposing of the plaintiffs' expert medical witnesses in a toxic-tort case against defense contractor Lockheed Martin Corp.  The Oct. 29 decision means that Lockheed's attorneys from Gibson, Dunn & Crutcher may continue to question the experts even though some already have been questioned for more than 40 days. Plaintiffs' attorney Walter Lack said he plans an appeal to the California Supreme Court.</div> <bR> <bR> <bR> <bR> <DIV ALIGN="LEFT"></DIV> <div> <A HREF="id41.htm" TARGET="_top" TITLE="Court Limits Use of Name beach boys"><U><IMG SRC="092bd3e0.jpg" border=0 width="189" height="62" ALIGN="BOTTOM" HSPACE="0" VSPACE="0"></U></A></div> <div> <A HREF="id41.htm" TARGET="_top" TITLE="Court Limits Use of Name beach boys"><U>Click on Gavel to Continue</U></A></div> </td> </tr><tr> <td valign="top" colspan=2 height=24 BGCOLOR="#111111" TEXT="#F7F7FF"> <div> To Preview Your Selection - Click on any Blue Link (Above)</div> </td> </tr></table></body>