E. RANDOL SCHOENBERG (SB# 155281)
KATTEN MUCHIN ZAVIS & WEITZMAN
1999 Avenue of the Stars ¥ Suite 400
Los Angeles, California 90067-6042
(310) 788-4542

Attorneys for Plaintiffs
NURIA SCHOENBERG NONO, RONALD R. SCHOENBERG, and LAWRENCE A. SCHOENBERG

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

NURIA SCHOENBERG NONO, RONALD R. SCHOENBERG, LAWRENCE A. SCHOENBERG, individuals, Plaintiffs,

vs.

UNIVERSITY OF SOUTHERN CALIFORNIA, a nonprofit corporation; and DOES 1 through 10, inclusive, Defendants.

CASE NO: BC131528

PLAINTIFFS' EX PARTE APPLICATION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND OSC RE: PRELIMINARY INJUNCTION; DECLARATION OF LEONARD D. STEIN, RONALD R. SCHOENBERG, LAWRENCE A. SCHOENBERG, AND E. RANDOL SCHOENBERG IN SUPPORT THEREOF

Date: January 6, 1996
Time: 8:30 a.m.
Dept.: 86
Trial Date: None
Motion Cutoff: None
Discovery Cutoff: None
 

I. INTRODUCTION.

The Schoenbergs have brought this action against the University of Southern California ("USC" or "the University") in order to maintain the integrity of the Arnold Schoenberg Institute ("ASI" "Institute" or "Collection") until it can be transferred to a new location pursuant to the Agreement between the Schoenbergs and USC ("Agreement"). (Ex. A.) The Institute houses the archives of the composer, Arnold Schoenberg, which were donated by the plaintiffs to USC subject to the Agreement. The Institute is located in a unique, free-standing building located on the campus of USC, which was built especially for the Institute. (Exs. D and E.) Under the Agreement, the Institute building is to be used exclusively for Institute purposes. (Ex. A, p. 10, | 5.3.) Last year, however, USC declared that it no longer would honor the 23- year-old Agreement and stated its intention of using the Institute building for other purposes as "the university sees fit." (Ex. Q.)

USC's intentions toward the Agreement with the Schoenbergs are set forth in an April 26, 1995 memo from the Institute Director, Paul Zukofsky:

In my opinion, "in for a penny - in for a pound", i.e. we are already in breach, therefore it hardly matters if we are somewhat more in breach. The next logical place to "violate" the contract concerns the use of the Institute's performance hall. . . . I see no reason why the hall could not be used for various University-wide events, including Library fundraisers, University lectures, etc. (Ex. K (emphasis added).)

In order to prevent further violation of the Agreement and the dismantling of the Institute by USC, on July 19, 1995 the Schoenbergs sought and obtained a temporary restraining order preventing USC from using the Institute building for purposes unrelated to the Institute and from removing and copying materials in the Institute. A USC employee admitted that the Schoenbergs had been "deliberately provoked" to take such action. (Ex. L). On September 22, 1995, the Court issued a preliminary injunction enjoining the University from (1) failing to protect the Collection, (2) using the Institute facilities for any purposes not reasonably related to the Collection, as defined in paragraph 9 of the 1985 Understandings between the parties, and (3) publishing or copying materials with permission. (A copy of the Preliminary Injunction is attached as Exhibit B.)

Subsequent to these rulings the parties agreed to a voluntary mediation with Judge Bobb, that is scheduled to take place on January 8, 1996. However, on Wednesday, January 3, 1996, USC gave written notice that it intends to use the Institute building for general music classes, recitals and concerts beginning next week. (Strangely, as of January 3, 1996, the Institute staff was unaware that any activities were scheduled to take place at the Institute this semester. (L. Schoenberg decl., | 12.)) This belated notice itself violates paragraph 2 of the 1985 Understandings and the repeated assurances of counsel for the University that the Schoenbergs would be told at the planning stage of any plans to use the Institute building for any purpose. (Ex. C, | 2, E.R. Schoenberg decl., || 2-8.) Because of the last-minute notice, the Schoenbergs were forced to make this ex parte application to prevent further violation of the Agreement and the preliminary injunction issued by this Court. (E.R. Schoenberg decl., | 9.)

II. THE UNIVERSITY IS NOT PERMITTED TO USE THE SCHOENBERG INSTITUTE BUILDING FOR NON-INSTITUTE PURPOSES.

A. The Agreement Provides For Exclusive Use Of The Building By The Institute.

The Agreement to Establish the Arnold Schoenberg Institute (Ex. A) explicitly provides that the Institute building "shall be used exclusively for THE ARNOLD SCHOENBERG INSTITUTE." (Ex. A, p. 10, | 5.3.) In the Agreement, the exclusive use term is "conclusively presumed to be material." (Ex. A, p. 15, | 8.2.) Indeed, it was one of the primary reasons the Schoenbergs agreed to place the collection at USC. (R. Schoenberg decl., || 5-7; L. Schoenberg decl., | 4.) The University received numerous donations which paid for the erection of the Institute building to be used pursuant the Agreement with the Schoenbergs. (L. Schoenberg decl., | 4.)

As a result of various problems created by USC, including improper use of the Institute building, in 1985, the University, through its Provost, Cornelius Pings, agreed to a number of specific concessions in order to retain the Institute at USC. ("1985 Understandings," Ex. C; R. Schoenberg decl., | 8; L. Schoenberg decl., | 6; Stein decl., | 4.) Paragraph 9 of the 1985 Understandings concerns use of the Institute building and bears repeating:

9. The University, through the President, the Provost, the Dean of the School of Music, and the Director of ASI, shall act, with the encouragement and support of the ASI Board, to assure that the ASI is not used for purposes extraneous to the intent of the original gift. This means, for example, that no event shall be scheduled or occur in the building that is not approved by the ASI Director and reported as part of the annual report of the ASI. This further means that the building shall not be used by the School of Music or any other University entity for such purposes as faculty committee meetings extraneous to the purposes of the Institute. Enclosed is a copy of the policy draft now adopted to govern the use of the ASI Performance Hall. Routine performances or other events having no demonstrable connection to the purposes of the ASI shall not occur in the building. (Ex. C, p. 5, | 9 (emphasis added).)

Incorporated into the 1985 Understandings is the May 25, 1984 "Draft of Policy for Use of ASI Performance Hall" by the Institute Director, Leonard Stein. (Id.; Ex. C, last page; Stein Decl., | 4.) Dr. Stein's "Draft of Policy" is even more explicit about the proper use of the Institute building:

Since it is the main concern of the Arnold Schoenberg Institute to encourage the study and presentation of the music of Schoenberg, as well as his contemporaries and successors, performances, lectures, exhibits, master classes, workshops, meetings, conferences, seminars and classes -- any event -- held in the Institute should reflect this concern. Events given by faculty, students or visiting artists and scholars which do not reflect this interest cannot take place in the Institute. (Ex. C, last page.)

In the 1985 Understandings, USC again committed itself to the "exclusive use" of the Institute building by the Institute for Institute-related matters.

B. Unless Enjoined By This Court, The University Will Use The Building For Non-Institute Purposes.

Last year, the University determined that it is no longer willing to abide by its clear contractual obligations regarding the exclusive use of the Institute building. On February 8, 1995, University General Counsel, Robert Lane, wrote the Schoenbergs, "In a time of constricting financial resources, it is only practical that the structure in which the Schoenberg Institute is housed be available to the University for uses in addition to that of the Institute." (Ex. G.) On April 6, 1995, Provost Lloyd Armstrong wrote the Schoenbergs that

[The University's] vision [of how best to serve the genius of Arnold Schoenberg] does not permit an isolation of Arnold Schoenberg's work and correspondingly does not fit with the use of the Institute building solely for collection of his works and concerts of his music. [. . .] the building in which the Institute is housed must be available for uses broader than those currently allowed by our agreement, since the status quo . . . unreasonably restricts the University's use of a wonderful recital hall. (Ex. H.)

Provost Armstrong therefore concluded that the University would permit the transfer of the Institute to another institution, pursuant to the Agreement. (Ex. H.) The Board of Trustees were informed of this decision. (Ex. I.) The Schoenbergs acknowledged the University's decision, and stated that they intended in the future to exercise their contractual right to transfer the Institute upon specifying a transferee (which is when the right can be exercised). (Ex. J.)

The Agreement was not terminated. Indeed, USC states it will continue to operate and retain the Institute through June, 1997. (Ex. P.) On May 15, 1995, the Schoenbergs wrote to President Steven Sample, informing him that while they were looking for a new site for the Institute and intended to exercise their rights to transfer the Institute to another institution, "[u]ntil we do, USC is still required to comply with all the terms of our agreement, including housing of the archives, staffing, and exclusivity of the use of the building." (Ex. N.) On May 26, 1995, Mr. Lane responded on behalf of the University,

the University does not feel restrained as to the use of the building in which the Archives are stored. Accordingly, the University cannot abide by your statement in your letter that all prior conditions must be maintained by the University while you determine a suitable location for the Archives. (Ex. O.)

Further, on July 14, 1995, Mr. Lane wrote to the Schoenbergs' counsel, "It is the position of the university that this structure may be utilized for any purpose the university sees fit. . . ." (Ex.Q (emphasis added).)

The temporary restraining order and preliminary injunction that followed should have disabused the University of the notion that it could use the Institute building as it saw fit. Paragraph 2 of the Preliminary Injunction states that the University is enjoined from using the facilities for any purposes not reasonably related to the Collection (a "related purpose" is not intended to limit the use of the premises to Collection uses only, but is as defined in paragraph 9 of the 1985 Understandings). (Ex. B, p.2.) However, on January 3, 1996, the University gave notice that during the upcoming semester, which begins next week, the University intends to use the Institute building for general music history classes, recitals and concerts having no demonstrable relationship to the Institute. (Ex. V.) These classes include Introduction to Concert Music, Music from Antiquity to 1750, and Music from 1750 to the Present. The concerts and recitals proposed by the University are routine performances having nothing whatsoever to do with the Institute, and are expressly prohibited under paragraph 9 of the 1985 Understandings and this Court's preliminary injunction order.

The previous director of the Institute, Leonard Stein, who drafted the policy incorporated in paragraph 9 of the 1985 Understandings, has stated unequivocally that the uses currently proposed by the University are in violation of the Agreement and the 1985 Understandings. (Stein decl., || 8-9.) No classes have ever been held in the Institute, other than seminars on Schoenberg taught by the Director. (Stein decl., || 6-8.) Without a temporary restraining order and preliminary injunction, the University will obliterate the exclusive use provisions of the Agreement, and permanently deprive the Schoenbergs of the promises they bargained for in the Agreement and the 1985 Understandings.

III. AN INJUNCTION IS NECESSARY TO AVOID IRREPARABLE HARM.

If USC is permitted to violate the Agreement prior to the trial of this action, as it has threatened to do, the Institute and the rights of the Schoenbergs will be irreparably harmed. "Plaintiffs are not required to wait until they suffer actual harm, but may seek injunctive relief against threatened infringement of their rights." Southern Christian Leadership Conference v. Al Malaikah Auditorium Co., 230 Cal.App.3d 207, 223 (1991). The Schoenbergs made this valuable donation to USC on the basis of an agreement by USC to establish a free-standing, permanent home for the Arnold Schoenberg Institute, which would not be used for general USC activities. (See President Hubbard's 11-6-73 letter to Ronald Schoenberg, Ex. F.) Indeed, the architecture of the building (including the design of the exhibit hall (without desks) and other rooms) was for the exclusive use of the Institute. (Stein decl, || 1, 8.) The Schoenbergs seek an injunction to ensure that USC does what it has been doing for 23 years (and what it agreed to do forever), so that the Institute can remain intact and function as it should until such time as a new location for the Institute can be found and the Institute can be transferred, or at least until this case is tried.

USC cannot be heard to complain that it must immediately take over a building which both it and the Schoenbergs intended to be used permanently by the Schoenberg Institute. The University has lacked a "proper" recital hall for many years. (Ex. V, Livingston Memo, p. 5.) There is no urgent need to use the Institute this semester. Other than the Composition Forum, the three other classes (Introduction to Concert Music, Music from Antiquity to 1750, Music from 1750 to the Present) are listed in USC's course schedule to take place in the lecture halls in the Annenberg School building. (Ex. X.) When the Institute is moved, USC will have gained a new building, for which it received substantial donations, after only keeping twenty-odd years of a contractual arrangement that was supposed to last forever. There is no harm to waiting until the trial of this action or the transfer of the Institute before capturing a building it was never intended to have. USC should not be able to "take advantage of [its] own wrong." Civil Code ¤ 3517. Unless an injunction is granted, USC will achieve its goals by further breaching the Agreement to the detriment of the Schoenbergs, the Institute and the public.

IV. LEGAL ARGUMENT.

The issuance of a preliminary injunction involves the evaluation of various interrelated factors: first, the likelihood that the plaintiff will prevail on the merits at trial, and second, the interim harm that the plaintiff is likely to suffer if the injunction is denied, as compared to the harm the defendant is likely to suffer if the preliminary injunction is issued. IT Corp. v. County of Imperial, 35 Cal.3d 63, 69-70 (1983). These factors have already been addressed in the previous application and the Court has ruled that the Schoenbergs have established a reasonable likelihood of success on the merits, irreparable injury and the inadequacy of remedies at law. (Ex. B.)

A. The Schoenbergs Will Prevail On The Merits.

The Schoenbergs are entitled to specific performance of the exclusive use provisions of the Agreement. The Agreement expressly provides that the right to transfer the Institute is not an exclusive remedy and that the Schoenbergs also have "the right to seek a decree of specific performance from a court of competent jurisdiction." (Ex. A, p. 17, | 8.7.) As plaintiffs argued in their original Application, filed July 19, 1995, the contractual terms accompanying a gift must be strictly enforced. See Walton v. City of Red Bluff, 2 Cal. App. 4th 117, 136 (1991) (enforcing restriction against use of library building for non-library purposes); Save the Wellwood Memorial Library Com. v. City Council, 215 Cal. App. 3d 1003 (1989) (same); Carpenter Foundation v. Oakes, 26 Cal.App.3d 784 (1972) (upheld injunction to protect gift of literary materials for use only by "qualified" church members). Like the defendants in Walton and Save the Wellwood Memorial Library, the University has argued that it must be permitted to use the Institute building for "reasonable" uses, i.e., classes, concerts, lectures, etc., although the Agreement does not permit such uses. But the law is clear that even reasonable, non-conflicting uses are not permitted when the beneficiary of a gift has previously agreed otherwise.

In Roberts v. City of Palos Verdes Estates, 93 Cal. App. 2d 545 (1949), the City of Palos Verdes acquired certain lands which were originally granted exclusively for park purposes. The grant deed provided that no buildings could be erected on the land except such as were properly incidental to the use of the property as a park. The City was sued for attempting to erect buildings on the property to house city trucks and vehicles, and the trial court issued a judgment which permitted the City to build the buildings on the property for the purposes of housing vehicles and equipment used by the City in connections with care, maintenance and upkeep of city parks. The Court of Appeal reversed, holding that the restrictive provisions of the gift must be "guarded zealously," and that

What a city council or board of trustees would like to do under whatever guise it may be proposed is not the test as to the validity of the proposal. The terms of the deed alone are controlling. Unless the buildings directly contribute to the use and enjoyment of the property in question for park purposes, there exists a violation of the restrictions. Id., at 548.

Here, the University finds itself in a similar position to the City of Palos Verdes in Roberts. It desires to use the Institute building for purposes that it deems are "reasonable," but which are prohibited under the exclusive use provisions of the Agreement. As in Roberts, the donors are entitled to strict enforcement of the terms of the gift. See also Holt v. College of Osteopathic Physicians & Surgeons, 61 Cal.2d 750, 754 (1964) ("charitable contributions must be used only for the purposes for which they were received in trust.") Therefore, this Court should issue a temporary restraining order and preliminary injunction prohibiting the use of the Institute building for the non- Institute purposes proposed by the University in the January 3, 1996 letter.

B. There Is No Adequate Remedy For The University's Breach Of The Agreement, And The University Will Not Be Harmed By Complying With The Agreement.

If USC is permitted to use the building "as it sees fit," the Institute will cease to exist as it has for over 20 years, as an institution dedicated to the life and works of Arnold Schoenberg. By converting the Institute building into a general purpose structure, the underlying purpose of the Agreement to establish the Institute will be violated, and the Institute will lose the prestige and importance it has accumulated over the past 22 years. There are serious security concerns if the building is being used for non-Institute purposes. The building was designed specifically for the Schoenberg Institute and the archival and performance elements of the building are integrated, so that one cannot be separated from the other. To transfer the materials, the Schoenbergs need to be able to show the Institute to prospective donees as it should exist, not as a general university building.

The Court has authority to issue a preliminary injunction to prevent a breach of contract. See Associated Cal. Loggers, Inc. v. Kinder, 79 Cal. App. 3d 34 (1978) (preliminary injunction preventing termination of agreements pending trial); MCA Records, Inc. v. Newton-John, 90 Cal. App. 3d 18 (1979) (preliminary injunction to restrain singer from recording for competitor based on loss of goodwill); Youngblood v. Wilcox, 207 Cal. App. 3d 1368 (1989) (preliminary injunction preventing termination of country club membership). Until a suitable new location can be found and the Institute can be moved, the Institute should remain and function as intended under the Agreement, at least pending the determination of this action.

The University has argued that it may not be forced to incur the expense of maintaining the Institute as it agreed, pending the transfer to a new location, and that it has the right to declare the Agreement "terminated." That is not the law.

It is elemental that a person may not escape a voluntarily assumed contractual obligation merely because performance would be more expensive than contemplated [citation] unless it rises to the level of impossibility. [Citation.] The evidence here did not establish the existence of any condition or expense which could not reasonably have been anticipated. [Defendant's] past nonperformance therefore cannot be excused [citation] and [defendant's] future nonperformance cannot be excused in advance by the device of rewriting the contract without the mutual consent of the parties. The court had no power to rewrite the contract. Ellison v. City of San Buenaventura, 48 Cal. App. 3d 952, 962 (1975); Ellison v. Ventura Port District, 80 Cal. App. 3d 574 (1978) (specific performance of covenant to maintain navigation and drainage channel).

Similarly, in this case, the Court has the equitable authority to prevent the University from violating its contractual obligations to maintain the Institute and use the Institute building exclusively for Institute purposes until the Institute is transferred to a new location. Given the University's position on use of the Institute building, the only way to avoid irreparable harm to the Institute is for this Court to issue a temporary restraining order and preliminary injunction.

V. CONCLUSION.

The Arnold Schoenberg Institute is a remarkable and unique institution dedicated to the life and works of the most important and influential figure in twentieth century music history. It should be allowed to continue its work unmolested until such time as this action can be determined and the Institute can be transferred to a new location. Any doubt should be resolved in favor of charitable donors, rather than the breaching institution.

KATTEN MUCHIN ZAVIS & WEITZMAN

By: E. Randol Schoenberg
Attorneys for Plaintiffs
 

DECLARATION OF LEONARD D. STEIN

I, Leonard D. Stein, declare as follows:

1. I was the first director of the Arnold Schoenberg Institute at USC, serving from 1975 to 1991, and was adjunct professor in the USC School of Music. I am presently the director emeritus of the Arnold Schoenberg Institute. I was directly involved in the design of the Arnold Schoenberg Institute building, which opened in 1977. I had been a pupil of Arnold Schoenberg, his teaching assistant at UCLA, performed many of his works both as pianist and conductor, edited his theoretical works and musical compositions, and lectured and taught numerous classes on his music.

2. I received my Doctorate of Musical Arts in 1965 from USC. The Schoenberg books I have edited and completed include Structural Functions of Harmony, Style and Idea: Selected Writings of Arnold Schoenberg, Preliminary Exercises in Counterpoint, Models for Beginners in Composition, and Fundamentals of Musical Composition. I have also edited several of Schoenberg's compositions for the complete critical edition published jointly by Schott in Mainz and Universal Edition in Vienna, as well as additional works for Belmont Music Publishers. I am Founder of the Los Angeles Chapter of the International Society for Contemporary Music; Founding Director of Encounters, a series of lecture-performances with leading international composers at the Pasadena Art Museum and California Institute of Technology; Music Director of Theatre Vanguard, which presents programs of new and experimental works; and organizer of the series "Music of the Twentieth Century" at UCLA. I have served on the board of the Monday Evening Concerts, one of the oldest contemporary music series in the United States, and a lifetime member of the International Schoenberg Society in Moedling, Austria. In 1966 I received a Guggenheim Fellowship, and in 1988 the Chavalier de l'Ordre des Arts et des Lettres from the French government for my years of cultural leadership and service. I have been the Louis C. Elson Lecturer at Harvard University, Laredo Taft Lecturer at the University of Illinois, and Regents' Lecturer at the University of California, San Diego. Last month, I was awarded the Deems Taylor Lifetime Achievement Award from the American Society of Composers, Authors and Publishers (ASCAP) for my editorial work on the Journal of the Arnold Schoenberg Institute.

3. As Director of the Arnold Schoenberg Institute, I was responsible for supervising the cataloguing of the 30,000-item Schoenberg Collection, donated by the heirs of the composer. I established and edited the Journal of the Arnold Schoenberg Institute, a bi-annual publication presenting the latest scholarship on Schoenberg and his time, and I inaugurated graduate-level seminars in twentieth century music. I also organized lectures and conferences, commissioned compositions, and founded the Arnold Schoenberg Institute concert series, which has been acclaimed by the California Arts Council as being of "exemplary quality" and "one of the bravest outposts in Southern California for adventuresome new music."

4. In 1984, the Schoenbergs and USC had a dispute concerning the use of the Institute building for programs not emanating from or associated with the Institute. As part of the resolution to that dispute, in May 1984, I drafted the "Draft of Policy for Use of ASI Performance Hall," which is attached to and incorporated in the paragraph 9 of the 1985 Understandings between the Schoenbergs and USC, a copy of which is attached as Exhibit C. From 1985 until 1991, I was responsible for implementing the policy I had drafted to make sure that the Agreement with the Schoenbergs was not violated. The University was required to submit proposed events during the academic year for my approval by October 1. I would discuss the proposed events with the Schoenbergs and the Advisory Board (on which the Schoenbergs comprised three of seven members). Events would occur in the Institute only after I and the Advisory Board had indicated our approval.

5. In particular, the 1985 Understandings confirmed that the Institute was not to be used as venue for classes, recitals and concerts emanating from the School of Music. The Draft Policy states: It is the main concern of the Arnold Schoenberg Institute to encourage the study and presentation of the music of Arnold Schoenberg, as well as his contemporaries and successors, performances, lectures, exhibits, master classes, workshops, meetings, conferences, seminars and classes-- any event- - held in the Institute should reflect this concern. Events given by faculty, students or visiting artists and scholars which do not reflect this interest cannot take place in the Institute. The Draft Policy was intended to provide guidelines for the Institute in programming its own events as well as for events emanating outside the Institute which might be "directly related to the music of Schoenberg, his contemporaries or successors."

6. The Arnold Schoenberg Institute was never intended to be used as a classroom. The exhibit hall on the upper level was designed for exhibits, lectures and concerts that were part of the programs sponsored by the Institute. In the past certain graduate seminars that I have taught on Schoenberg and his contemporaries have been held in the seminar room on the lower level of the Institute. During my tenure, we programmed numerous concerts of music by Schoenberg, his contemporaries and successors as part of an effort to educate the community to the field of modern, contemporary music which Schoenberg founded early in this century. We also occasionally programmed lectures and seminars on Schoenberg and related topics. The Institute also held several international symposia on Schoenberg. The exhibit hall was used for rotating exhibits featuring materials in the Institute.

7. Pursuant to the Agreement between USC and the Schoenbergs, the building was to be used exclusively for the Institute and was not to be used by the School of Music as a classroom or concert venue. Over the years, the School of Music has tried to program events at the Institute. I would only permit those events to occur at the Institute if I felt they were in some way directly related to the collection and the purposes of the Institute. Generally, recitals and concerts by students and faculty members do not relate to the Schoenberg Institute, even when a Schoenberg piece may be on the program. Unless the performer is exemplary and the works programmed are carefully selected to fit the purposes of the Institute, the concert simply does not belong in the Institute. The 1985 Understandings provide in paragraph 9: "Routine performances or other events having no demonstrable connection to the purposes of the ASI shall not occur in the building."

8. I have reviewed the proposed list of classes, recitals and concerts included in Scott Edelman's January 3, 1996 letter to E. Randol Schoenberg, as well as the draft memorandum from Dean Larry Livingston. (Ex. V.) I can state unequivocally, that (with the exception of the Composition Forum II) none of the proposed classes, recitals or concerts have any relationship to the collection or to the purposes of the Arnold Schoenberg Institute. I and the Schoenbergs have in the past permitted the Friday Composition Forum to meet in the Institute exhibit hall because that course focuses on modern composition techniques, which necessarily are influenced by Arnold Schoenberg. However, neither I, nor the Schoenbergs, have ever permitted general music history classes, such as Introduction to Concert Music, Music from Antiquity to 1750 and Music from 1750 to the Present to take place in the Institute. None of these courses has anything to do with the Institute or the collection it houses. These are general music history courses that belong in the School of Music. Although Schoenberg may be mentioned briefly in some of these courses, the Institute was never intended to provide a venue for these types of classes. The Institute exhibit hall is not a proper location for these sorts of classes because the Institute is a secure building housing extremely valuable materials. The persons entering the Institute must be aware of the sensitive nature of the materials housed in the building. Additionally, the chairs in the exhibit hall do not have desks for taking notes.

9. If the University is allowed to use the Arnold Schoenberg Institute for the classes, recitals and concerts proposed by the University in Mr. Edelman's January 3, 1996 letter and Dean Livingston's December 1995 memorandum attached thereto, then the Institute will no longer be used exclusively for the Arnold Schoenberg Institute, but rather will be converted to a regular University building. Effectively, the Institute building will become an annex of the School of Music. This is something that the Schoenbergs carefully tried to prevent, and something which I, as director, would never have permitted.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 4th day of January 1996 at Los Angeles, California.

_______________________________
Leonard D. Stein
 
 

DECLARATION OF RONALD R. SCHOENBERG

I, Ronald R. Schoenberg, declare as follows:

1. I am the son of Arnold Schoenberg and, along with my brother and sister, am a plaintiff in this action against the University of Southern California to enforce the terms of our Agreement to Establish the Arnold Schoenberg Institute. I have personal knowledge of the facts stated herein, and if called upon to testify, I would testify competently to these facts.

2. Our father kept, organized, classified, and collected all of his manuscripts, writings and other documents throughout his life. He developed methods of classification for organizing his collection and designed and constructed special furniture to store his scores, artifacts and other items. He never seemed to throw anything away and was a genuine "recycler" of materials. He managed to bring over from Nazi Germany to the United States his complete collection of manuscripts, library, furniture and other materials by first having them moved to Paris in 1933 and later shipped to the United States. In Los Angeles from 1934 to his death in 1951 he continued to augment and preserve his collection. After he died in 1951, our mother continued in the same way to protect the collection. She was unwilling to separate any of his legacy and resisted many offers to purchase selected manuscripts. When our mother died in 1967, we inherited this responsibility of keeping the collection intact, again resisting offers from various individuals and organizations to purchase materials from the collection.

3. It is essential that the cause of this suit be seen as not just USC's decision to move items it owns from one university building to another, or converting a school building to a new use. Rather, this suit involves the misuse of a unique building specially designed and dedicated to a unique purpose over twenty years ago. (See Ex. E, cover page article from the "USC Trojan Family" alumni magazine, Vol. 19, Number 4, April 1987.)

4. Even before the Agreement to Establish the Arnold Schoenberg Institute was signed, on November 5, 1973, USC's President John Hubbard wrote us:

To house the materials comprising the library and archives, we will establish the Arnold Schoenberg Institute on our campus in cooperation with several local educational institutions. We intend to use funds and commitments we have already received for this purpose from internal and other educational and philanthropic sources and augment these in the months ahead to assure ourselves of the permanence of the Schoenberg Institute. However the University of Southern California is now prepared to assume the responsibility for constructing a free-standing structure adequate for the purpose, and provide funds for its director, librarian and such staff that might be required for the Institute. (Attached as Exhibit F is a true and correct copy of President Hubbard's November 5, 1973 letter to me.)

5. It was in reliance on these and similar promises that we entered into our Agreement with USC. The Agreement, executed one month after President Hubbard's letter, reaffirms his promise, stating: USC agrees that the building . . . shall be used exclusively for the ARNOLD SCHOENBERG INSTITUTE and that there shall be housed therein only the Archives and related Arnold Schoenberg materials. (Agreement, Ex. A, Article V, | 5.3.)

6. It was our intention, in setting up the Arnold Schoenberg Institute, to establish a permanent home for the legacy where it would become the center of a living memorial to our father. We used specific language both in our communications with prospective donees and finally in our contract with the University of Southern California to accomplish this purpose. In our Agreement with USC, we insisted that USC establish an institute to promote scholarship and understanding of our father's works. We insisted that a separate facility be constructed to house the legacy and the Institute. We insisted that the facility be used exclusively for the Institute and not become merely another university facility, as was the case with Schoenberg Hall at UCLA. We insisted that the Institute have an active program of concerts, lectures, classes and publications directly related to Schoenberg.

7. The reasons we insisted that the Institute building be used exclusively for the Institute were to provide a lasting memorial to our father and to protect the collection and assure its security and accessibility. The Institute building was designed (with our approval) to meet these needs. The building includes an archival vault, an archival work room, a library and study room, a seminar room, an exhibit/performance hall and administrative offices. (Attached as Exhibit D is a color brochure of the award-winning Institute building.) We insisted that the Agreement provide for exclusive use of the building because we were concerned what future administrators might wish to do with the facility.

8. As it turned out, our concerns were well-justified. In the 1980's the University began using the building for non- Institute purposes. These events, meetings, concerts, and lectures were programmed without any relation to the activities of the Institute and indeed prevented the Institute from using the facility for its own programs. In 1983, we notified the University that it was in breach of the Agreement, which resulted ultimately in the 1985 Understandings attached as Exhibit C. Because of the 1985 Understandings, we did not exercise our right to transfer the Institute to another location at that time. In the 1985 Understandings, the Provost agreed that the Institute building would be used exclusively for Institute purposes, and the University adopted a policy for use of the building which prohibited unrelated uses. (Ex. C, | 9 and last page.) The University also agreed to regular meetings and certain staffing requirements, among other things. The 1985 Understandings were an essential condition for USC retaining the Schoenberg collection at that time.

9. The University now acknowledges that it has breached the Agreement and the 1985 Understandings, and that it has no intention of curing its breaches. As a result, we have notified the University that we intend to transfer the Institute to a new location. However, finding a new location for the Institute will take some time, and we have not yet exercised our right to transfer by informing the University of the name and location of the new donee. Until we do so, the University is obligated to abide by its Agreement and maintain the Institute in the manner to which it has agreed. Our right to transfer is non-exclusive of other remedies, including specific performance of the Agreement. If the University does not abide by the Agreement, our efforts to transfer the Institute will be thwarted because we will not be able to show prospective donees how the Institute is supposed to function. Also, if the building is used for other purposes, the security of the collection will be impaired and the important work of the Institute will be frustrated.

10. I have reviewed the proposed list of classes, recitals and concerts included in Scott Edelman's January 3, 1996 letter to E. Randol Schoenberg, as well as the draft memorandum from Dean Larry Livingston. (Ex. V.) If the University is allowed to use the Arnold Schoenberg Institute for the classes, recitals and concerts proposed in Exhibit V, then the Institute will no longer be used exclusively for the Arnold Schoenberg Institute, but rather will be converted to a regular University building. Effectively, the Institute building will become an annex of the School of Music. This is something that we carefully tried to prevent by negotiating paragraph 5.3 in the Agreement and paragraph 9 of the 1985 Understandings.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this __ day of January, 1996 in Los Angeles, California.

________________________________
Ronald R. Schoenberg
 

DECLARATION OF LAWRENCE A. SCHOENBERG

I, Lawrence A. Schoenberg, declare as follows:

1. I am the son of Arnold Schoenberg and, along with my brother and sister, am a plaintiff in this action against the University of Southern California to enforce the terms of our Agreement to Establish the Arnold Schoenberg Institute. I have personal knowledge of the facts stated herein, and if called upon to testify, I would testify competently to these facts.

2. My brother Ronald R. Schoenberg, my sister Nuria Schoenberg Nono and I are the children of Arnold Schoenberg, who is considered the most influential composer of the Twentieth Century. He is often referred to as "the father of modern music." He discovered and developed what is commonly called "twelve-tone music." He wrote operas, symphonies, choral works and chamber music, all of which are widely performed around the world. His works and his life are the subjects of continuing scholarship at academic institutions. He was also an accomplished artist.

3. In the early 1970's, we decided to donate our father's legacy to a qualified institution on the conditions that the legacy be well conserved and catalogued and that it be made readily accessible to students and scholars. We received many attractive offers from around the world and ultimately entered an agreement with the University of Southern California ("USC").

4. On December 11, 1973, we entered into an agreement with USC, which was amended in January 1975, January 1976. The agreement, as amended, is attached as Exhibits A, and is referred to as the "Agreement." The promises by USC in the Agreement were essential to us and, in our view, necessary for the conservation and for the use of the collection. One of the essential terms in the Agreement was that the Institute building would be used exclusively for the Arnold Schoenberg Institute and not for other USC functions. This insures that activities in the Institute are related to Arnold Schoenberg and insures the safety and security of the collection. The University received numerous donations which helped pay for the erection of the Institute building to be used pursuant to our Agreement.

5. We are members of the Board of Advisors and the Academic Committee of the Institute, both of which are provided for in the Agreement. The mandated meetings of the these committees were to enable us to provide input and oversight regarding use of the facility and to insure that adequate attention be given to the care, organization, development and promotion of the collection. All of the terms of the Agreement were dedicated to fulfilling what the Agreement specifies as its underlying purpose, "namely the preservation of the ARNOLD SCHOENBERG Archives as a single collection available for study by qualified scholars." (Ex. A, | 7.1.)

6. As a result of various problems created by USC's failure to comply with its obligations, in January of 1985, USC executed a document entitled, "Understandings Underlying the Continued Commitment of the University of Southern California to the Arnold Schoenberg Institute" ("1985 Understandings," Ex. C). In that document USC stated that it "reaffirms its commitment to the Arnold Schoenberg Institute (ASI) as an important continuing part of the University. This commitment is to be expressed not only in sustaining the ASI, but also in finding increased ways to stimulate scholarship on, public awareness of, and performances of Arnold Schoenberg's works." (Ex. C, | 1.) USC agreed to keep the Schoenberg family timely informed of all activities of the Institute; it agreed to a separate budget and to develop a number of specified activities; it agreed that the Board of Advisors would function as set forth in Section VII of the Agreement; it agreed to the formation and semi-annual meetings of an Academic Committee which would review proposed budgets and programs; it agreed that the budget was to reflect "all relevant items," including specified activities; it agreed to a specified number of staff members; it agreed not to use the Institute or the building for extraneous matters; and it agreed to encourage the development of additional sources of gifts and endowment income.

7. On February 8, 1995, we received a letter from University Counsel Robert Lane (a true copy of which is attached hereto as Exhibit G) proposing changes to the Agreement. As a result, in late February, my brother and I met with the Provost Lloyd Armstrong and Mr. Lane, wherein we discussed USC's proposed modifications of the Agreement, including eliminating the restriction on the exclusive use of the Institute building. However, we would not agree to modify the Agreement.

8. On April 6, 1995, the Provost sent a letter to Ronald Schoenberg, a true copy of which is Exhibit H hereto, in which he stated, in effect, that USC would no longer abide by the Agreement. On April 11, 1995, Provost Armstrong informed the Board of Trustees of his decision, as evidenced by Exhibit I attached hereto. On April 12, 1995, we sent a letter to USC, a true copy of which is attached hereto as Exhibit J, in which we stated our intention to transfer the Institute pursuant to paragraph 8.6 of the Agreement. On May 11, 1995, the Provost sent a letter to Ronald Schoenberg, a true copy of which is attached hereto as Exhibit M, in which he acknowledged the Schoenbergs' intent to transfer the Institute pursuant to paragraph 8.6. On May 15, 1995, we sent a letter to USC, a true copy of which is attached hereto as Exhibit N, in which we informed USC that we would hold them to the Agreement pending the transfer. On May 26, 1995, Mr. Lane sent a letter to us, a copy of which is attached as Exhibit O, in which he declared the contract "terminated" and stated that "the University does not feel restrained as to the use of the building in which the Archives are stored." On July 5, 1995, Mr. Lane wrote to our attorney, Richard Mosk, stating that the university intends to maintain the institute at its current level of activity through June 30, 1997, but would in the meantime convert the building to its own purposes, as evidenced by Ex. P. The University subsequently refused efforts to meet and discuss their decision. Finally, on July 19, 1995 we sought and obtained a temporary restraining order preventing the University from using the Institute building for non-Institute purposes. The acting assistant archivist at the Institute, Stephen Davison, admits that we were "deliberately provoked" to take such action, as evidenced by his e-mail to Bob Kosovsky, attached as Exhibit L.

9. The building was constructed specifically to house the archives. The upper portion includes the Schoenberg study, the piano, posters, busts and display cases filled with archival materials. The downstairs includes the archives, library and study and work rooms. Fire laws prevent shutting off one level. Thus, if USC used portions of the building for classes, receptions, non-Schoenberg musical events or other matters, it is likely that existing security and protection would be compromised.

10. It took us several years to review applications and enter into an agreement with USC and several years for USC to prepare a facility to house the collection. Thus, we expect it will take time for us to find, and come to an agreement with, a transferee and be in a position to transfer the material.

11. USC has now decided to no longer comply with the contract. We relied on USC's good faith when making the gift. Because of its actions, we are now forced to perform the search, selection and transfer processes once again. We contracted for certain obligations of USC because in our judgment that was important to the collection and to the purposes of the Agreement. If these obligations are not performed while the collection is at USC, it will not be receiving the attention and resources that were promised.

12. I have been working regularly at the Institute for the last few months on almost a daily basis. Each time I have been at the Institute, I have requested information from the staff regarding any projected use of the facility. In every single case, I have been assured by the Institute staff that no activities were taking place, nor were any being planned for the coming semester. As recently as yesterday, the Assistant to the Director, Olivia Moreno, told me that nothing has been planned for next semester. Today, January 4, 1996, she confirmed again that she was not aware of any activities scheduled at the Institute, other than the upcoming mediation scheduled to take place on January 8, 1996. The archivist, Wayne Shoaf, and the secretary and researcher, Marilyn McCoy, also stated on January 3, 1996 that they had no knowledge of any activities being planned for the Institute.

13. The Director of the Institute, Paul Zukofsky, has not communicated to me or my brother and sister since the inception of this lawsuit last summer. He is rarely at the Institute. Other than the January 3, 1996 letter from Scott Edelman, attached as Exhibit V, we have received no written notice of any proposed uses for the Institute building for the coming semester. Such uses would, per our Agreement and paragraph 2 of the 1985 Understandings (Ex. C), necessarily have to be reviewed by the Advisory Board of the Institute, which has not been convened by the University for over two years, in violation of our Agreement.

14. I have obtained a schedule of classes for the upcoming semester, relevant pages of which are attached as Exhibit X. Of the proposed classes listed in Mr. Edelman's January 3, 1996 letter, only the Composition Forum is scheduled to take place in the Institute. All of the other courses are scheduled to take place in other buildings on campus.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California, this 4th day of January, 1996.
_____________________________
LAWRENCE A. SCHOENBERG
 

DECLARATION OF E. RANDOL SCHOENBERG

I, E. Randol Schoenberg, declare as follows:

1. I am an attorney representing the plaintiffs, Nuria Schoenberg Nono, Ronald R. Schoenberg, Lawrence A. Schoenberg, in the above-referenced action. I am also the son of plaintiff Ronald R. Schoenberg. I have personal knowledge of the facts stated herein and if called upon to testify I would be able to testify competently to these facts.

2. At the September 18, 1995 hearing on plaintiff's application for preliminary injunction, Scott Edelman, who appeared on behalf of the University of Southern California, assured Judge Wayne that the University would have no problem keeping the Schoenbergs informed of proposed events at the Arnold Schoenberg Institute. Attached as Exhibit Y is the relevant page of the transcript from the September 18, 1995 hearing, in which Mr. Edelman made such a representation.

3. On September 19, 1995, I wrote Mr. Edelman reminding him of the University's obligation, pursuant to paragraph 2 of the 1985 Understandings (Ex. C), to keep the Schoenbergs informed of all proposed scheduling of all Institute activities at the earliest possible time during the planning stages before finalizing agreements or making public announcements. Attached as Exhibit R is my September 19, 1995 letter.

4. On September 27, 1995, I again reminded Mr. Edelman in a letter that USC was required to give the Schoenbergs notice of proposed events. Attached as Exhibit S is a true and correct copy of my September 27, 1995 letter.

5. On October 18, 1995, at a status conference in Department 82, Mr. Edelman confirmed to Judge Bobb that he would give the Schoenbergs timely notice of any proposed uses of the Institute building at the planning stage, as required by the 1985 Understandings.

6. On December 4, 1995, I wrote Mr. Edelman a letter stating as follows: Since I have not heard from you regarding any proposed uses of the Institute building, I trust that the status quo will be maintained and that there will be no non-archival uses of the Institute building in the coming semester. A true and correct copy of my December 4, 1995 letter is attached as Exhibit T.

7. Mr. Edelman did not respond to my December 4, 1995 letter until he called me on Friday, December 29, 1995. Mr Edelman said that he had been remiss in not notifying me earlier, but that we would receive a formal written notice and a list of the scheduled events for the Institute sometime the following week, when he was planning to be on vacation. I told Mr. Edelman that his belated notice was in extreme bad faith and was not a good omen for the mediation that had been scheduled, at his request, to take place on January 8, 1996. At first, Mr. Edelman said that he could not assure me that no events would be taking place in the first week in January. However, after several calls, Mr. Edelman assured me that these proposals were in the planning stages and that none of these events were scheduled to take place before January 10, 1995. I faxed Mr. Edelman a letter on December 29, 1995 confirming this telephone call and requesting an opportunity to confer regarding the proposed activities after we had received his letter. A true and correct copy of my December 29, 1995 letter is attached as Exhibit U.

8. On January 3, 1996, I received a letter from Mr. Edelman detailing the University's plans to utilize the Arnold Schoenberg Institute facilities during the coming semester for a variety of classes, recitals and concerts having no demonstrable relationship to the activities of the Institute. A true and correct copy of Mr. Edelman's January 3, 1996 letter is attached as Exhibit V. Attached to Mr. Edelman's letter is a draft memorandum, dated December 1995, from Dean Larry Livingston notifying faculty and students that the Schoenberg Institute would be available for general recitals and concerts in the coming semester.

9. On January 4, 1996 at about 11:00 a.m. I faxed a letter to Mr. Edelman giving him ex parte notice that the Schoenbergs would seek a temporary restraining order and osc re preliminary injunction on Friday, January 5, 1996 at 8:30 a.m. in Department 86. A true and correct copy of my January 4, 1996 letter is attached as Exhibit W. At about 12:00, I attempted to call Mr. Edelman to confirm that he received the fax. Neither Mr. Edelman, nor his secretary, picked up the phone. I then tried Mr. Edelman's associate, Vivienne Vella, who also did not answer. I then tried Mr. Edelman's partner, Gail Lees and informed her secretary that I had faxed Mr. Edelman an ex parte notice. At about 2:00 p.m., Mr. Edelman and Ms. Vella called me and confirmed that they had received my ex parte notice. Mr. Edelman asked to continue the hearing until next week, but because classes begin next week and we have a previously scheduled mediation on January 8, 1996, we determined that there was no time to continue the hearing. Mr. Edelman said that he would return from his vacation early and appear at the hearing on Friday morning.

I declare under penalty of perjury that the foregoing is true and correct. Executed this __ day of January, 1996 at Los Angeles, California.
_____________________________
E. Randol Schoenberg