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' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PRELIMINARY INJUNCTION; SUPPLEMENTAL DECLARATIONS OF LEONARD D. STEIN AND E. RANDOL SCHOENBERG IN SUPPORT THEREOF

Date: January 18, 1996
Time: 9:30 a.m.
Dept.: 86
Trial Date: None
Motion Cutoff: None
Discovery Cutoff: None
 

I. INTRODUCTION.

The Arnold Schoenberg Institute is not an ordinary classroom building. It is an institute housing a unique historical archive donated by the Schoenbergs and currently valued at $50 million (Ex. I). The Institute is dedicated to the goal of "preservation of the Arnold Schoenberg Archives as a single collection available for study by qualified scholars" (Ex. A, | 7.1), "finding increased ways to stimulate scholarship on, public awareness of, and performances of Arnold Schoenberg's works" (Ex. C, | 1.) and "encourag[ing] the study and presentation of the music of Schoenberg, as well as his contemporaries and successors" (Ex. C, last page). The Schoenbergs were very careful to provide in the Agreement establishing the Institute that the Institute building must be used "exclusively" for the Institute so that it could not later be converted by the University for other uses unrelated to the collection it houses. (Ex. A, | 5.3.) The University has decided to breach its Agreement with the Schoenbergs and now seeks unilaterally to "terminate" the Agreement so that it can use the Institute building to solve its long-standing need for classroom space. (Ex. H.) However, the University must not be allowed to profit from its breach so soon. The Court should issue a preliminary injunction to preserve the integrity of the Institute until its contents can be transferred to a new institution.

II. THE PROPOSED USES OF THE INSTITUTE VIOLATE THE AGREEMENT, THE 1985 UNDERSTANDINGS AND THE PRIOR PRELIMINARY INJUNCTION.

On January 3, 1996, the University gave belated written notice fn.1 of its intention to use the Institute building this semester for three music history classes, a composition forum, and student and faculty recitals. (Ex. V.) Of these proposed uses, only the composition forum featuring lectures, recordings and performances of works by prominent guest composers, has been permitted to take place in the Institute before. fn.2 (Supp. Stein decl., | 12.) The Institute has never been used for classes. fn.3 (Supp. Stein decl., | 14.) The Institute has also not been open to student and faculty recitals with no relation to the purposes of the Institute. (Supp. Stein decl., | 15.)

The University is well aware of the fact that its proposed uses violate the Agreement with the Schoenbergs. Indeed, a primary reason for the University's decision to breach the Agreement was that the Agreement "restricts the University's use of a wonderful recital hall" (Ex. H; see also Ex. G; Ex. I.) The feigned confusion of the current Director, Paul Zukofsky, and the Dean of the School of Music, Larry Livingston, as to the meaning of the Agreement and the 1985 Understandings is a subterfuge, scarcely hiding their true intentions to solve a long-standing shortage of space in the School of Music. fn.4 (Livingston decl., || 2-3, Zukofsky decl., | 12.)

Mr. Zukofsky, who holds a tenured position in the School of Music, but whose Institute position as director expires next year, orchestrated the University's breach of the Agreement and has admitted his disregard for the Schoenberg's rights under the Agreement -- "in for a penny - in for a pound" (Ex. K). His "approval" of the proposed uses is further evidence of his complete abdication of his role as Director of the Institute. Mr. Zukofsky rarely if ever comes to work in the Institute fn.5 and has not programmed any events (concerts, lectures, seminars) at the Institute since the inception of this dispute. (Supp. Stein decl., | 16.)

The 1985 Understandings resolved a conflict over the School of Music's desire to use the Institute building for events unrelated to the purposes of the Institute. In the 1985 Understandings, the University agreed not to program routine School of Music events, but rather to reach out to the University community to create events that would reflect the diversity and widespread impact of Arnold Schoenberg on twentieth century culture. As a result, over the next 6 years Dr. Stein programmed a great number of seminars, lectures and concerts reflecting this view. (Ex. 1.) All of these events show a focus that is clearly lacking in the University's current proposed uses of the Institute building. (Supp. Stein decl., || 3-13.)

The University has made no attempt to justify its new interpretation of what is "reasonably related" to the Institute, other than to argue that all "concert music" is related because Schoenberg was a composer, or that classes are appropriate because Schoenberg was a teacher. fn.6 (Livingston decl., | 13; Zukofsky decl., | 10.) This is not an interpretation that is supported by the Agreement, the 1985 Understandings or the prior practices of the Institute. fn.7 Neither Mr. Livingston, nor Mr. Zukofsky, can point to any time during the 20-year history of the Institute when the building was used for events similar to the proposed uses at issue today. As the University admits, the conduct of the parties prior to the dispute should be used as evidence of the parties' intentions. Civ. Code ¤ 1636; Crestview Cemetery Assn. v. Dieden, 54 Cal.2d 744, 752-754 (1960); Hernandez v. Badger Construction Equipment Co., 28 Cal.App.4th 1791, 1814 (1994).

III. A FURTHER INJUNCTION IS WARRANTED TO PREVENT THE UNIVERSITY'S THREATENED BREACH OF THE AGREEMENT.

A. The Proposed Injunction Is Consistent With Judge Wayne's Ruling.

As the Court heard at the January 5, 1996 hearing, the University's citations to Judge Wayne's tentative ruling and her early comments at the September 18, 1995 hearing are extremely misleading. At the end of the hearing, Judge Wayne confirmed that she did not intend to permit use of the Institute building inconsistent with the terms of the Agreement, and agreed that the written preliminary injunction (Ex. B) would take precedence over any comments at the hearing. (Transcript, Ex. 3, 20:15-21:15.)

B. The Proposed Injunction Is Not Too Vague.

The proposed injunction is "adequate to apprise defendants of what is required of them." Greenly v. Cooper, 77 Cal.App.3d 382, 395 (1978). Before the inception of this suit, and the retention of outside defense counsel, the University admitted that its proposed uses of the building went beyond what the Agreement permitted. (Ex. H, I, K, O.) The proposed injunction would merely enforce the terms of the Agreement and the 1985 Understandings, and is no more difficult to follow than the injunctions granted in other restrictive use cases. See Roberts v. City of Palos Verdes Estates, 93 Cal.App.2d 545 (1949) (injunction to prevent building on park property which was to be used exclusively for the park); Save the Wellwood Memorial Library Com. v. City Council, 215 Cal.App.3d 784 (1989) (injunction to prevent use of building for non-library purposes); 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).

C. The Proposed Injunction Will Not Require Constant Court Supervision.

The Court issued a temporary restraining order which restricts use of the Institute building without the express written permission of the Schoenbergs. (TRO, Ex. 4.) This provision is consistent with the prior practices of the parties, which included the review and approval of all Institute events by the Advisory Board, of which the Schoenbergs were three of seven members. (Supp. Stein decl., | 3.) The Schoenbergs have never unreasonably withheld approval for events related to the purposes of the Institute. (Supp. Stein decl., | 15.)

IV. 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
NURIA SCHOENBERG NONO, RONALD R. SCHOENBERG, LAWRENCE A. SCHOENBERG

fn.1 The University's failure to comply with the agreed-upon notice provisions of paragraph 2 of the 1985 Understandings (Ex. C) is further grounds for precluding the University's use of the Institute facilities this semester.
 

fn.2 Interestingly, during the past four years, Mr. Zukofsky has refused to permit the composition forum to take place in the Institute. Unlike his predecessor, Dr. Stein, Mr. Zukofsky has, prior to the University's breach, steadfastly rejected any attempts to open up the Institute for performances or lectures related to Schoenberg. He imposed an arbitrary 50% Schoenberg rule to justify his position. (Ex. 5, Zukofsky depo., 46:8-47:8, 48:16-50:20.)

fn.3 The Institute is not a classroom facility. There are no desks on the chairs in the exhibit hall. (Stein decl., | 8.) "Master classes" are something completely different. A master class is a special event, taught by a renowned artist, using star pupils to demonstrate to the audience certain musical techniques. The Institute has occasionally been the site of special master classes for world-famous artists, when those classes featured artists or music closely associated with Schoenberg. (Supp. Stein decl., | 13.)

fn.4 Provost Lloyd Armstrong wrote to Ronald Schoenberg on April 6, 1995, "We are simply not able in today's challenging world to continue to support the concept of isolation incorporated in our current agreement." (Ex. H.) The University cannot now in good faith claim that their interpretation of the Agreement permits the type of broad, unrestricted general use of the building for unrelated classes, recitals and concerts that the University proposed on January 3, 1996.

fn.5 Attached as Exhibit 7 is an excerpt from the deposition of Cindy Theodossiades, Mr. Zukofsky's former assistant, who states that Mr. Zukofsky only comes to work "one to two hours every two weeks." (Theodossiades depo., 42:5-11.)

fn.6 The University does not even make an attempt to justify the Music from Antiquity to 1750 class that it allegedly selected after "careful consideration."

fn.7 Mr. Zukofsky has previously written that, in order to "honor all previous contracts, letters of understandings, and oral agreements heretofore reached with the Schoenbergs . . . Use of the ASI facility [is] restricted to Schoenberg, or closely related topics as determined by the ASI." (Ex. 6, Zukofsky to Lyman, Aug. 19, 1994.) He has also used an arbitrary 50% Schoenberg rule to preclude School of Music events at the Institute. (Ex. 5, Zukofsky depo., 46:8-47:8, 48:16-50:20.)
 

SUPPLEMENTAL DECLARATION OF LEONARD D. STEIN

I, Leonard D. Stein, declare as follows:

1. I have reviewed the statements made in the declarations submitted with Defendant's Opposition to the OSC re Preliminary Injunction, and wish to correct the severe misunderstandings contained therein concerning the events I programmed at the Arnold Schoenberg Institute during my tenure as Director. I have personal knowledge of the facts stated herein and if called upon to testify I would testify competently to these facts.

2. As Director of the Institute from 1975 to 1991, I planned and attended almost all of the events listed in the list of Schoenberg Institute Events published in the Journal of the Arnold Schoenberg institute (which I founded) and attached as Exhibit 1 to this declaration.

3. As I stated in my previous declaration, after the execution of the 1985 Understandings, I followed the guidelines set forth in the Draft of Policy that is incorporated in paragraph 9 of the 1985 Understandings. I programmed a vast number of concerts, lectures and seminars at the Institute on Schoenberg- related topics. Most, if not all, of these events are listed in Exhibit 1. In general, these events fell into four categories: (1) concerts of the music of Schoenberg and his contemporaries, (2) Schoenberg Lectures and Seminars, (3) Schoenberg-related conferences and (4) contemporary music and other concerts. The vast majority of these events involved Schoenberg directly or in context with his contemporaries. As with any policy, there are times when you must experiment and test the limits. I always tried my best to stay within the guidelines incorporated in the 1985 Understandings. The Schoenbergs would sometimes question tenuously-related events and I would explain why I believed the events were related to the purposes and activities of the Institute. I would review all proposed events with the Advisory Board, consisting of the three Schoenbergs and four University appointees, before making final plans. Although we did not always agree, I greatly appreciated the Schoenberg's involvement as members of the Advisory Board of the Institute. As a rule, I did not approve uses of the Institute without the prior approval of the Advisory Board.

Concerts of Music of Schoenberg and His Contemporaries

4. It is interesting that the University mentions the concerts of music by Hanns Eisler that I programmed (including one conducted by Dean Livingston). I am currently conducting research into Eisler's legacy here in Los Angeles, and particularly his music and composition pupils living in the area. Hanns Eisler was an Austrian composer who studied with Schoenberg from 1919 to 1923. He fled the Nazis and lived in Los Angeles during the '40s, where he wrote several successful film scores, until he was expelled by the House Un-American Activities Committee in 1948. Through Eisler, Schoenberg met the writer Berthold Brecht, with whom Eisler collaborated on many projects. On September 1, 1987, there was a concert conducted by Dean Livingston at the Institute, entitled "Music in Exile," which featured music by Schoenberg, Eisler, Ernst Toch and Ernst Krenek (all Austrian-American exile composers and friends of Schoenberg). The Schoenberg work performed was the "Ode to Napoleon," Op. 41, composed in Los Angeles in 1942 to the text by Lord Byron as a stinging indictment of totalitarianism. The Eisler piece was the suite "Fourteen Ways to Describe Rain," from one of the documentaries commissioned by the Rockefeller Foundation and described in Eisler's book on music for films. The concert was repeated on September 6, 1987 in West Berlin as part of that city's 750th Anniversary. This is precisely the type of special event that the Institute was designed to promote.

5. Although it is not often that one can program a work by Gustav Mahler in the small Institute exhibit hall -- the "Symphony of a Thousand" is obviously not an option -- one could hardly argue that his music is "unrelated" to the purposes of the Institute. Gustav Mahler was Arnold Schoenberg's best friend and supporter during the early years of Schoenberg's career. Schoenberg's landmark "Theory of Harmony," published in 1911 is dedicated "To the hallowed memory of Gustav Mahler." Mahler's widow, Alma, was also Schoenberg's lifelong friend. Schoenberg, himself, championed Mahler's music long before Leonard Bernstein made it fashionable. On January 12, 1986, I programmed a concert and reception in honor of Mahler biographer Donald Mitchell, which featured several works by Mahler, including the "Songs of a Wayfarer" arranged for chamber ensemble by Schoenberg.

6. Together with Johannes Brahms, the music of Richard Wagner was one of the great early influences on Schoenberg. The early Schoenberg string sextet "Transfigured Night" of 1898 (one of Schoenberg's most famous works) is hardly thinkable without Wagner's "Siegfried Idyll" as a model, and Schoenberg's Chamber Symphony, Op. 9, uses a similarly unique instrumentation. On November 16, 1988, the Institute took part in a conference on Richard Wagner and Friedrich Nietzsche that was co-sponsored by the Max Kade Institute at USC and the Goethe Institute in Los Angeles. We held a concert at the Institute featuring the music of Wagner and Nietzsche, including the original chamber ensemble version of Wagner's "Siegfried Idyll" conducted by Dean Larry Livingston, and culminating in a performance of Schoenberg's Nietzsche song, "Der Wanderer", op. 6, no. 8. I can think of no better way to understand the music of Arnold Schoenberg, and the influence of Wagner and Nietzsche on his music, than to attend such a concert.

Schoenberg Lectures and Seminars

7. In 1987-88, the Friends of the Arnold Schoenberg Institute (a support group that raised funds for the Institute) sponsored a series of seven lectures on "The Vienna of Schoenberg's Youth: 1874-1911." In 1989-90, the theme of the seven lectures was "Schoenberg and . . . ." In 1990-91, the theme was "Artists in Exile: From Nazi Germany to America" and was linked with the Los Angeles County Museum of Art exhibit, "Degenerate Art: The Fate of the Avant-garde in nazi Germany" and the "Degenerate Music" exhibit at the Los Angeles Music Center. These seminars were attended by members of the Friends of the Arnold Schoenberg Institute, as well as members of the academic community, and served the purpose of educating people about Schoenberg and his era.

8. In their opposition brief, the University makes much of the lecture given by Barbara Schoenberg entitled "Altenberg and Weininger: Attitudes Toward Women." Barbara Schoenberg is the wife of plaintiff Ronald Schoenberg. She is also a professor of German literature and language at Pomona College, and is herself the daughter of the Austrian-American composer Eric Zeisl. Dr. Schoenberg is an expert on the Viennese prose poet Peter Altenberg, who was the subject of her Ph.D. dissertation at UCLA. Altenberg was a constant fixture at the Vienna coffeehouse where Schoenberg and numerous other Viennese intellectuals congregated around the turn of the century. (An excellent diagram of the Vienna Circles, from the book "Karl Kraus: Apocalyptic Satirist" by Edward Timms, is attached as Exhibit 2.) Altenberg's poems were widely read in Vienna and Schoenberg knew him and owned a number of his books. More importantly, Altenberg's postcard texts were used by Schoenberg's famous pupil Alban Berg for his Altenberg songs. The "Altenberglieder" were on the program of the infamous "Skandalkonzert" of March 31, 1913 conducted by Schoenberg, which resulted in one of the most famous riots in music history. Dr. Schoenberg's lecture featured a discussion of Altenberg's poetry and his early feminist views, which were in stark contrast to those of his contemporary, Otto Weininger, whose misogynist opus, "Sex and Character," caused a furor in Vienna during the first decade of this century (and is also in Schoenberg's library housed at the Institute). As part of her lecture, Dr. Schoenberg played a recording of Berg's "Altenberglieder" twice. This type of lecture epitomizes the interdisciplinary approach to Schoenberg studies that is required under the 1985 Understandings. An analysis of the prevalent attitudes toward the role of women in Austrian society is crucial to gain an understanding of Schoenberg's psychological monodrama, "Erwartung," Op. 17, composed in 1909 to a text by the medical student Marie Pappenheim. 9. Exhibit 2 provides a diagram of how Altenberg, Mahler, the philosopher Ernst Mach, the architect Adolf Loos and many others intersected with Schoenberg and his circle. Loos, for example, was not only one of the leading modern architects of his time (comparable to Frank Lloyd Wright in the United States), but also one of Schoenberg's closest friends and one to whom he would refer in ethical and artistic matters.

10. Schoenberg seminars have also covered Schoenberg's role as one of the most important painters of his time. His works were featured in the famous "Blue Rider" exhibition in Munich in 1912, and have been most recently exhibited at the Museum of Modern Art of the City of Paris last Fall. In this context, the Institute also took part in a conference on the Russian avant-garde, which featured a lecture by Jelena Hahl on Schoenberg's correspondence and friendship with the founding abstract artist Wassily Kandinsky, perhaps one of the most fascinating and influential artistic relationships in the twentieth century. Ms. Hahl's book on Schoenberg and Kandinsky has been translated into several languages.

11. The Institute held a number of other lectures, seminars and conferences on Schoenberg-related topics, including the ones mentioned by the University in their opposition brief. For example, in March 1985, I gave a lecture entitled "Los Angeles in the Golden Forties," which provided a platform for my reminiscences of my work as Schoenberg's assistant and as a pianist performing the works of Schoenberg and other composers active in Los Angeles at that time. I am not ashamed of this. Contemporary Music and Other Concerts

12. As I explained in my previous declaration, the Friday Composition Forum has traditionally been held at the Institute, although Mr. Zukofsky inexplicably terminated this practice when he became director. The Composition Forum features lectures, recordings, and performances of new works by prominent guest composers, which fits the spirit of Schoenberg's role as a masterful composition teacher. Schoenberg taught briefly at USC and then for several years at UCLA. I was one of his pupils during this period. The Composition Forum is not a "class," in the traditional sense, but is more like an open forum or seminar where new works by prominent guest composers are heard, explained, discussed and analyzed.

13. The Institute has occasionally been used for special master classes. These are not typical classes, in the academic sense, but rather demonstrations by prominent artists, using star pupils to elaborate their techniques. For example, the famed soprano Arlene Auger once gave a master class at the Institute while she was in town to perform the singing part of Schoenberg's Second String Quartet (a performance held at USC's Hancock Auditorium). Before a packed audience in the Institute exhibit hall, Ms. Auger coached several of the best USC opera students in songs of Schoenberg and others. Ms. Auger is since deceased, but the students who participated in her master class have since gone on to fine operatic careers and will no doubt be greatly influenced by their experience with Ms. Auger and her commitment to Schoenberg's music. This is the type of master class that was intended to take place at the Institute, pursuant to the 1985 Understandings.

14. The Institute has never been used for classes, and certainly not for the large general music history classes currently proposed by USC. These classes have nothing whatsoever to do with the Institute and its activities. The Institute is a repository of extremely valuable materials. It is not a general University classroom. While most of the archival materials are stored on the lower level, the upper level includes the Schoenberg study and several exhibit cases for rotating exhibits of archival materials. The exhibit hall must be available for Institute events, including conferences, seminars and special exhibitions, which preclude use of the exhibit hall as a regular classroom.

15. For a very brief period in around 1988, we experimented with student and faculty recitals at the Institute. Our thought was that the Schoenbergs would permit a few recitals, so long as the Institute was being used predominantly for Institute events, of which there were many at that time. This experiment did not work. The Schoenbergs and I were supposed to be given prior notice of the recitals, but it very soon became apparent that the School of Music was scheduling recitals without notifying the Schoenbergs. No more than a few recitals were scheduled during this period. They were not consistent with the 1985 Understandings. When the Schoenbergs objected to the recitals, they were immediately stopped and no further recitals have taken place in the Institute. The Schoenbergs have never unreasonably restricted the use of the Institute building. Rather, they have insisted that the terms of their Agreement be complied with, as is their right.

16. Sadly, my successor has chosen not to continue my efforts to promote the works of Schoenberg, his contemporaries and successors. He has not scheduled more than a couple of concerts and only a handful of lectures over the past four years. Into this vacuum, the University wants to thrust its faculty and student recitals and music history courses. As I stated in my previous declaration, the proposed classes and recitals are not related to the purposes of the Schoenberg Institute and I would never have permitted them to take place in that building.

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

_______________________________
Leonard D. Stein
 
 

SUPPLEMENTAL 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. Attached hereto as Exhibit 3 is a true and correct copy of relevant portions from the end of the transcript from the September 18, 1995 hearing on the prior preliminary injunction. At the end of the hearing, Judge Wayne confirmed that any proposed uses of the Institute "ha[ve] to be in accordance with the contract" and that the written preliminary injunction would "take precedence over any comments" made by the Court at the hearing. The terms of the Court's subsequently issued preliminary injunction (Ex. B to Plaintiffs' Ex Parte Application) are therefore controlling.

3. Attached hereto as Exhibit 4 is a true and correct copy of this Court's OSC re Preliminary Injunction and Temporary Restraining Order issued January 5, 1996.

4. Attached hereto as Exhibit 5 is a true and correct copy of relevant pages from the deposition of Paul Zukofsky, wherein he explains his arbitrary 50% Schoenberg rule that he applied to events at the Institute over the past four years. Attached as Exhibit 6 is a August 19, 1994 memo from Mr. Zukofsky to Dean and University Librarian Peter Lyman, wherein Mr. Zukofsky states that in order to "honor all previous contracts, letters of understandings, and oral agreements heretofore reached with the Schoenbergs . . . Use of the ASI facility [is] restricted to Schoenberg, or closely related topics as determined by the ASI." Mr Zukofsky also wrote: General recognition of the "stand alone" nature of the Institute and the necessity to preserve its independence to the greatest possible extent so that neither the spirit or letter of the various understandings with the Schoenbergs are disturbed. (Ex. 6, | 6.) Since Mr. Zukofsky has been director, there have been no more than a handful of lectures or concerts at the Institute, and none since the University's declared that it would no longer comply with the Agreement.

5. Since the inception of this dispute, Mr. Zukofsky has abdicated his role as Director. He rarely, if ever, comes to work and has not programmed any Institute events. Attached as Exhibit 7 is an excerpt from the deposition of Cindy Theodossiades, Mr. Zukofsky's former assistant, who states that Mr. Zukofsky only comes to work "one to two hours every two weeks." (Theodossiades depo., 42:5-11.)

6. Attached as Exhibit K to Plaintiffs' Ex Parte Application is a true and correct copy of a Mr. Zukofsky's April 26, 1995 memo wherein he proposes further violations of the Agreement with the Schoenbergs, especially including improper uses of the Institute exhibit hall.

7. Other than the proposed uses described in Scott Edelman's January 3, 1996 letter (Ex. V), the University has not informed the Schoenbergs of any scheduled events, lectures or concerts to be held at the Institute during the next semester. This dearth of Institute events is itself a violation of the Agreement between the parties, and is in stark contrast to the active schedule of Schoenberg-related events that took place during Dr. Stein's tenure as Director, as described in Exhibit 1 hereto.

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