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.
RELATED CROSS-ACTION
NURIA SCHOENBERG NONO, RONALD R. SCHOENBERG, LAWRENCE A. SCHOENBERG, individuals, Cross-complainants,
vs.
UNIVERSITY OF SOUTHERN CALIFORNIA, a nonprofit corporation; LLOYD A. ARMSTRONG, JR., PAUL ZUKFOSKY, LYNN SIPE, individuals, and ROES 1 through 10, inclusive, Cross-defendants.
CASE NO: BC131528
(Assigned to Hon. William C. Beverly, Jr. - Department 46)
SCHOENBERGS' VERIFIED CROSS- COMPLAINT FOR DEFAMATION, SPOLIATION OF EVIDENCE, BREACH OF CONTRACT, AND FRAUDULENT MISREPRESENTATION
Trial Date: None
Motion Cutoff: None
Discovery Cutoff: None
Pursuant to Code of Civil Procedure section 428.50, plaintiffs, cross-defendants and cross-complainants Nuria Schoenberg Nono, Ronald R. Schoenberg and Lawrence A. Schoenberg cross-complain against defendant, cross-complainant and cross- defendants University of Southern California, Lloyd A. Armstrong, Jr., Paul Zukofsky and Lynn Sipe and allege as follows:
The Parties
1. Cross-complainants Nuria Schoenberg Nono, Ronald R. Schoenberg and Lawrence A. Schoenberg (collectively, the "Schoenbergs") are the children of the composer, Arnold Schoenberg.
2. Cross-defendant University of Southern California ("USC") is a nonprofit entity duly organized under the laws of the State of California and located in the County of Los Angeles.
3. Cross-defendant Lloyd Armstrong, Jr. is, and for the past several years was, the Provost of USC.
4. Cross-defendant Paul Zukofsky is, and for the past several years was, the Director of the Arnold Schoenberg Institute at USC.
5. Cross-defendant Lynn Sipe was during much of the relevant time frame of this action the Acting Librarian at USC. Robert Lane is, and for the past several years was, the General Counsel at USC.
6. The Schoenbergs are ignorant of the true names of ROES 1 through 10, inclusive, and therefore sue these defendants by such fictitious names. The Schoenbergs will amend this complaint to allege their true names and capacities when such are ascertained. The Schoenbergs are informed and believe and thereon allege that each fictitiously named cross-defendant is responsible in some manner for the occurrences alleged herein.
7. The Schoenbergs are informed and believe, and based thereon allege that Armstrong, Zukofsky, Sipe and Lane and ROES 1 through 10, inclusive, took the actions alleged in this cross- complaint in their capacity as employees and agents of USC, and that USC is responsible for those actions. The Schoenbergs are informed and believe that USC authorized and ratified all of the statements by the University and its employees that are set forth below.
FIRST CAUSE OF ACTION FOR DEFAMATION
(Against all Cross-defendants)
8. The Schoenbergs repeat here and incorporated by reference the allegations contained in paragraphs 1-7.
9. In 1973, the Schoenbergs entered into an Agreement with USC whereby the Schoenbergs donated the Archives of the Arnold Schoenberg Institute to USC subject to the terms of the Agreement. USC agreed to build and establish the Arnold Schoenberg Institute ("Institute") and operate it under the terms of the Agreement. The Agreement was amended several times over the years. Under the Agreement, as amended, the Schoenbergs were entitled to serve as three of seven members of an Advisory Board which supervised the activities of the Arnold Schoenberg Institute. USC also agreed to establish an Academic Committee for the Institute.
10. Until the defamatory statements made by the University that are the subject of this Cross-complaint, the Schoenbergs have had a reputation in the world music and scholarly communities for facilitating and providing unequaled access to their father's collection. The Schoenbergs have never interfered with any scholarly articles and have freely granted permission to any and all scholars who wish to view and use the materials in the Institute. The Schoenbergs have never interfered with any scholar's academic freedom. The Schoenbergs have worked very hard to engender this reputation to stimulate scholarly interest in the Institute. As a result, numerous scholars have written books, articles and dissertations on Arnold Schoenberg using the materials in the Institute.
11. On or about December 17, 1994, the Schoenbergs gave notice to USC that it was in breach of the Agreement for not holding required meetings of the Advisory Board and the Academic Committee of the Arnold Schoenberg Institute. Robert Lane responded to the notice of breach on or about December 22, 1994, by stating in a letter to Ronald Schoenberg: The committee is now appointed, and its chair, Scott Bice, Dean of the Law Center, will convene its first meeting in January. The University apologizes for the delay and any inconvenience it may have caused. it will be in compliance with the agreement shortly.
12. However, despite assurances from Lane and Bice, the Committee meetings were not held. Instead, Provost Armstrong called the Schoenbergs and requested a meeting. On or about February 8, 1995, Lane wrote a letter to Ronald Schoenberg discussing the proposed meeting with Provost Armstrong. In particular, Lane listed four provisions of the Agreement that "should be discussed for possible revision." The fourth provision concerned alleged "limitations imposed by the copyrights held by the Schoenberg heirs on certain materials housed at the Institute." Lane stated that such alleged limitations "make it difficult for scholarly publications, including that of the Institute's Journal, to utilize Arnold Schoenberg's work."
13. In February 1995, Ronald Schoenberg and Lawrence Schoenberg met with Provost Armstrong and Lane. At the meeting, the Schoenbergs discussed the four issues raised in Lane's February 8, 1995 letter. The Schoenbergs told Provost Armstrong and Lane that the Schoenbergs had never interfered with any scholarly articles or imposed any limitations of any kind on any scholarly publications. The Schoenbergs told Provost Armstrong and Lane that in fact the exact opposite was true -- the Schoenbergs had made all of the materials in the Arnold Schoenberg Institute available to scholars for any purpose and always granted permission for the scholarly use of such materials without imposing any restrictions. The Schoenbergs asked whether Provost Armstrong knew of any specific instances where the Schoenbergs had imposed such limitations. Provost Armstrong replied that he did not.
14. Provost Armstrong concluded the meeting by saying that by March 15, 1995 there would either be an advisory board meeting or another meeting with him. However, the Provost did not convene any further meetings with the Schoenbergs.
15. On or about March 16, 1995, Provost Armstrong wrote to Stanley P. Gold, a member of the USC board of trustees, concerning the Institute. In that letter, Provost Armstrong repeated the baseless allegations about the Schoenbergs' use of copyright restrictions to hinder publication of scholarly articles. Provost Armstrong wrote:
The Schoenbergs hold the copyright for almost all the material in the Institute. I am told by many that the Schoenbergs have used their copyright ownership to stop several scholars from publishing material because of a variety of reasons (the Schoenbergs deny this), the most common being that the translations were inadequate or wrong in their view. Others claim that the family stopped publication because the publication would not necessarily have been good for some part of their father's image. In any case, we run into the conflict between the reasonable desire of copyright holders to protect their copyrighted material, and of the academic world to do research following the norms and standards of the field.
The Schoenbergs are informed and believe that these statements were false and were known, or reasonably should have been known, to be false by the Provost at the time he made them. The Schoenbergs have never used their copyrights to restrict the publication of any scholarly articles. The Schoenbergs have never hindered any publication because of any concern about their father's image. In truth, there has never been a conflict between the desires of the Schoenbergs and the desires of the academic world doing research at the Institute.
16. Nuria Schoenberg Nono, as well as Anne Schoenberg (the wife of Lawrence Schoenberg), who holds a master's degree in German from UCLA, and Barbara Schoenberg (the wife of Ronald Schoenberg), who holds a Ph.D. in German from UCLA. and is a German Professor at Pomona College, have been involved in reviewing and making corrections to translations of works by Arnold Schoenberg. In every case, the translator has welcomed the assistance and experience of the Schoenbergs in correcting these translations. When the translations were completed, they have been published. The Schoenbergs never "used their copyright ownership to stop several scholars from publishing material."
17. The next communication from Provost Armstrong to the Schoenbergs was Provost Armstrong's April 6, 1995 letter to Ronald Schoenberg, informing him that absent agreement or modification of the manner in which the Institute will be operated and housed here at the University, we must conclude that your Notice of Breach is a decision by the Schoenberg family that you desire to relocate your father's collection. While we are sorry that a mutual accommodation cannot be reached, we stand ready to discuss with you how the separation shall occur and over what time period.
18. In his April 6, 1995 letter, Provost Armstrong also repeated the allegation that "The limitations posed by the copyright restrictions also affect scholarly publication of articles, particularly in the Institute's journal, in ways that are not consistent with our standards of academic freedom." The Schoenbergs are informed and believe that this statement was false and was known, or reasonably should have been known, to be false by the Provost at the time he made it. The Schoenbergs have never used their copyrights to restrict the publication of any scholarly articles.
19. On or about April 11, 1995, Provost Armstrong wrote to members of the USC Board of Trustees concerning the decision to allow the Schoenbergs to transfer the Archives to another institution. In that letter, Provost Armstrong wrote They have an understandable interest in furthering the reputation of their father; we have a commitment to scholarship that has often conflicted with their interest. They have used their copyright ownership to frustrate a number of efforts at scholarly publication. The Schoenbergs are informed and believe that these statements were false and were known, or reasonably should have been known, to be false by the Provost at the time he made them. The Schoenbergs have never used their copyrights to restrict the publication of any scholarly articles.
20. The Schoenbergs are informed and believe that Provost Armstrong repeated the baseless allegations that the Schoenbergs had used their copyright ownership to frustrate a number of efforts at scholarly publication in further conversations with the USC board of trustees and others within and outside the University.
21. The Schoenbergs are informed and believe that on or about April 18, 1995, Provost Armstrong spoke with Philip Gossett. The Schoenbergs are informed and believe that Gossett was and is a Dean at the University of Chicago and a President of the American Musicological Society, an organization which concerns itself with scholarly musical research. The Schoenbergs are informed and believe that Provost Armstrong told Gossett that the Schoenbergs had used their copyrights to frustrate the publication of scholarly articles about Arnold Schoenberg. In an e-mail dated April 18, 1995 from Gossett to Bruce Brown, Chairman of the Music History Department at USC, Gossett stated, in part, as follows:
Provost Armstrong was kind enough to call me and talk at great length about the problems with the Schoenberg family. Wow. That's a can of worms of epic proportions. (I know about families from my dealings with the Verdis--who aren't much better.) My sense from him was that the University has been trying for years to get more bang for its buck, but has been stymied at every turn by the family (not to mention the problem of academic freedom).
The Schoenbergs are informed and believe that Gossett's disparaging statements about the Schoenbergs was a direct result of Provost Armstrong's statement to him that the Schoenbergs had used their copyright ownership to stop the publication of scholarly articles and had interfered with scholars' academic freedom.
22. The Schoenbergs are informed and believe that on or about April 24, 1995 the University issued a press release entitled "Schoenberg Archives to Leave USC." The press release contained a quote from Provost Armstrong stating While the desire of the Schoenberg heirs is to advance and memorialize the composer's legacy, the university finds certain conditions regarding this single focus too restrictive to be fully consonant with our ideas of academic freedom and effective utilization of academic and material resources.
23. The Schoenbergs are informed and believe that about this time in April 1995 Lynn Sipe was designated the spokesman for the University to handle press inquiries concerning the Institute. Mr. Sipe thereafter made numerous statements to reporters that the Schoenbergs had infringed the University's "academic freedom" and had interfered with the publication of scholarly articles. These statements were false, and were known, or reasonably should have been known, to be false by Sipe at the time he made them. The Schoenbergs have never used their copyrights to restrict the publication of any scholarly articles.
24. On May 2, 1995, the Los Angeles Times published a front page article which stated
USC wants more control over the archives' copyrights, which the family retains. Provost Armstrong called the current copyright arrangement "not consistent with our standards of academic freedom" because the family holds ultimate power over the material's use. The Schoenbergs stress that they have never denied a scholar the right to quote or reproduce anything for free, a point several scholars confirmed. USC's efforts now show disrespect to the artistic legacy, the heirs maintain. "It's astonishing; it's very painful to hear them say we are infringing on their academic freedom," said Lawrence Schoenberg.
The Schoenbergs are informed and believe that the L.A. Times story accurately reflects the statements of Provost Armstrong and Lawrence Schoenberg. The Schoenbergs are informed and believe that Provost Armstrong's statements to the L.A. Times concerning alleged infringement by the Schoenbergs of USC's and scholars' academic freedom were false and were known, or should have been known, to be false at the time he made them.
25. Except for the above statements made in letters to the Schoenbergs or meetings with them, or in articles published in the Los Angeles Times, the Schoenbergs were ignorant of these defamatory statements, and could not reasonably have discovered such statements, until documents evidencing them were produced by USC through discovery in August 1995. The University agreed to toll the statute of limitations on any action from April 24 through May 15, 1996.
26. The Schoenbergs are informed and believe that Paul Zukofsky was the initial source for these false and defamatory statements alleging that the Schoenbergs had interfered with the academic freedom of scholars. The Schoenbergs are informed and believe that Zukofsky made these false and defamatory statements and communicated them to Provost Armstrong, Lane, and Sipe in order to protect himself from criticism and to drive a wedge between the Schoenbergs and the University. The Schoenbergs are informed and believe that Zukofsky made these false and defamatory statements solely for his own benefit and protection.
27. The Schoenbergs are informed and believe that from April 1994 to the present, Provost Armstrong, Sipe, Zukofsky, the USC Press Office and ROES 1 through 10, inclusive have repeated to the press and to other interested parties (orally and in writing) the baseless allegations that the Schoenbergs had interfered with the publication of scholarly articles despite the fact that the allegations were known to be, or should have been known to be, false and defamatory. The statements were either knowingly false, or made with reckless and wilful disregard for the Schoenbergs' rights and reputations.
28. The Schoenbergs are informed and believe that the false and defamatory allegations about the Schoenbergs have been rebroadcast among the musicological community and in numerous press articles, including, but not limited to, the Summer Trojan, the USC Chronicle, the Daily Bruin, the Chronicle of Higher Education, the Los Angeles Daily Journal, the BBC News Service, the San Francisco Examiner and the Los Angeles Times.
29. The false and defamatory allegations were made in order to provide a justification for the University's decision to breach the Agreement with the Schoenbergs, which was motivated by other factors, including a desire to use the Institute building for activities not permitted under the University's Agreement with the Schoenbergs. The Schoenbergs are also informed and believe that the University planned to refuse to cure its breach of the Agreement with the secret hope that the Schoenbergs would not be able to remove the collection and would have to give up their rights under the Agreement. The allegations concerning academic freedom were designed to harm the Schoenbergs and hinder their ability to locate a new institution willing to take their collection.
30. The Schoenbergs are informed and believe that the false and defamatory statements made by cross-defendants on their face have a tendency to injure, and did in fact injure, the Schoenbergs and subject them to contempt, ridicule, obloquy, or cause them to be shunned or avoided.
31. The Schoenbergs are informed and believe that the false statements by cross-defendants have irreparably damaged the Schoenbergs' reputation in the worldwide music and scholarly communities for facilitating and providing unequaled access to their father's collection. This damage has and will in the future decrease scholarly interest in the Institute and in the music and works of Arnold Schoenberg, to the detriment of the Schoenbergs. Further, the Schoenbergs are informed and believe that their efforts to find another institution willing to house the Institute have been hampered by the University's false and defamatory statements concerning academic freedom. The Schoenbergs are informed and believe that prospective transferee institutions have avoided the Schoenbergs and determined that they are not interested in housing the Schoenberg collection based on the false statements by the University. Additionally, the false and defamatory statements have caused and will continue to cause great emotional distress and injury to the Schoenbergs.
32. The Schoenbergs are informed and believe that the statements by cross-defendants concerning allegations that the Schoenbergs interfered with academic freedom and used their copyright ownership to stop the publication of scholarly articles were made with the specific intent to cause injury to the Schoenbergs, and that such statements were malicious, fraudulent and oppressive, carried out with willful and conscious disregard for the Schoenbergs' rights and out of hatred and ill-will, and in order to protect the University from justified criticism for its decision to breach the Agreement with the Schoenbergs. As such, the Schoenbergs are entitled to punitive and exemplary damages under Civil Code section 3294 against cross-defendants in an amount sufficient to punish them and to deter them from future similar conduct.
SECOND CAUSE OF ACTION FOR INTENTIONAL SPOLIATION OF EVIDENCE
(Against Cross-defendants University of Southern California, Paul Zukofsky
and Roes 1 through 10, inclusive)
33. The Schoenbergs repeat here and incorporated by reference the allegations contained in paragraphs 1-7.
34. On July 18, 1995, the Schoenbergs filed suit against the University of Southern California, in the matter entitled Nono v. University of Southern California, LASC Case No. 131528.
35. On July 19, 1995, the Schoenbergs applied for and obtained a temporary restraining order prohibiting the University and its employees and agents from, among other things "Removing any materials housed in the building of the Arnold Schoenberg Institute without the express written consent of the Schoenbergs."
36. The Schoenbergs are informed and believe that shortly after the issuance of the temporary restraining order on July 19, 1995, cross-defendant Paul Zukofsky ordered his assistant, Cynthia Jansen Theodossiades, to remove certain of his correspondence files from his office in the Arnold Schoenberg Institute. Mr. Zukofsky called Ms. Theodossiades from his car phone and asked her to bring the files out to his car in the parking lot. Mr. Zukofsky knew at the time he ordered Ms. Theodossiades to remove the files, that removing the files would violate the temporary restraining order. The Schoenbergs never granted Mr. Zukofsky permission to remove any files from the Arnold Schoenberg Institute. In an attempt to protect himself from liability for violating the temporary restraining order, Mr. Zukofsky used Ms. Theodossiades to remove the files.
37. The Schoenbergs are informed and believe that the files removed at Mr. Zukofsky's direction were not returned to the Arnold Schoenberg Institute at the time the Schoenbergs inspected the files at the Institute as part of the expedited discovery prior to the hearing on the preliminary injunction. The Schoenbergs are informed and believe that Mr. Zukofsky intentionally removed certain of his files so that they would not be produced in discovery. The Schoenbergs are informed and believe that certain files were never returned to the Institute and have not been produced as part of discovery, despite their relevance to the action filed by the Schoenbergs.
38. Mr. Zukofsky's actions constitute a misdemeanor under Penal Code section 135, which provides, Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, wilfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.
39. As a result of Mr. Zukofsky's removal of evidence, in violation of the temporary restraining order, the Schoenbergs have been deprived of their right to review documents in the Arnold Schoenberg Institute which might be relevant to the litigation. The Schoenbergs are informed and believe that their ability to prevail in the litigation, and their ability to mitigate the damage caused by the University's breach of the agreement by finding a new transferee institution, has been harmed by Mr. Zukofsky's illegal removal of evidence. The Schoenbergs have been forced to conduct additional discovery to determine what Mr. Zukofsky has removed and to try to mitigate the damage caused by Mr. Zukofsky's removal of evidence. As a result, the Schoenbergs have been damaged in an amount to be proven at trial.
40. The Schoenbergs are informed and believe that the removal of files by Mr. Zukofsky was made with the specific intent to cause injury to the Schoenbergs, and that such actions were illegal, malicious, fraudulent and oppressive, carried out with willful and conscious disregard for the Schoenbergs' rights and out of hatred and ill-will. Further, Mr. Zukofsky and Ms. Theodossiades were acting as employees and agents of the University when they removed Mr. Zukofsky's files. As such, the Schoenbergs are entitled to punitive and exemplary damages under Civil Code section 3294 against Mr. Zukofsky and the University in an amount sufficient to punish them and to deter them from future similar conduct.
THIRD CAUSE OF ACTION FOR BREACH OF CONTRACT
(Against cross-defendant University of Southern California)
41. The Schoenbergs repeat here and incorporated by reference the allegations contained in paragraphs 1-7, 11-17.
42. In April 1995, the University and the Schoenbergs reached an agreement to transfer the Archives of the Arnold Schoenberg institute to a new institution, pursuant to paragraph 8.6 of the 1973 Agreement between the parties.
43. On April 12, 1995, Ronald Schoenberg sent a letter to Provost Armstrong, confirming the University's agreement to permit the transfer of the Archives pursuant to paragraph 8.6 of the Agreement.
44. On May 11, 1995, Provost Armstrong sent a letter to Ronald Schoenberg, in which he stated: I have received your letter dated April 12, 1995. The University of Southern California (the "University") understands that the family of Arnold Schoenberg is exercising its rights under Article VIII of the agreement between the Schoenbergs and the University. Accordingly, the Schoenbergs and the University agree to the transfer of the Archives in accordance with the terms of Paragraph 8.6 of the Agreement.
45. These communications confirmed in writing the agreement between the Schoenbergs and the University of Southern California that the Archives would be transferred to a new institution pursuant to paragraph 8.6 of the 1973 Agreement.
46. In reliance on this agreement to transfer the Archives, the Schoenbergs began the search for a new transferee institution. The Schoenbergs have expended considerable time and money in the search for a new transferee institution.
47. On March 15, 1996, the University filed a cross- complaint, seeking a declaration that the Archives remain at the University and not be transferred to a new institution pursuant to paragraph 8.6 of the 1973 Agreement. By claiming the right to keep the Archives and seeking to block the transfer to a new institution, the University has breached the agreement to transfer the Archives confirmed in the April 6, April 12 and May 11, 1995 letters.
48. As a result of the University's breach of the agreement to transfer the Archives, the Schoenbergs have been damaged in amount to be proven at trial. Further, the Schoenbergs' ability to find a new transferee institution has been damaged by the University's breach of its agreement. The transfer of the Archives will be delayed as a direct consequence. Additionally, the reputation of the Schoenbergs has been damaged because the Schoenbergs had represented to numerous institutions that the University had agreed to the transfer of the Archives.
FOURTH CAUSE OF ACTION FOR FRAUDULENT MISREPRESENTATION
(Against cross-defendant University of Southern California)
49. The Schoenbergs repeat here and incorporated by reference the allegations contained in paragraphs 1-7, 11-17, 42- 48.
50. The Schoenbergs are informed and believe that the representations and promises made by the University that it would transfer the Archives to a new institution were false and were made without any intention to perform those promises.
51. The Schoenbergs are informed and believe that the representations that the University agreed to the transfer of the Archives pursuant to paragraph 8.6 of the Agreement were made with the intention that the Schoenbergs rely on those representationes.
52. The Schoenbergs are informed and believe, and based thereon allege, that between December 1994 and April 1995, the University devised a secret strategy to deprive the Schoenbergs of their contractual rights under the 1973 Agreement. The strategy was that the University would refuse to cure its breaches of the Agreement and tell the Schoenbergs to look for a new institution to house the Archives. Essentially, the University intended to "call the Schoenbergs' bluff." However, the University hoped and believed that the Schoenbergs would not find a new institution to house the Archives. Indeed, the University took actions, including making false and defamatory statements to the press and others, with the intention of making it very difficult for the Schoenbergs to find a new institution willing to make an agreement with them. At one point, the University refused to permit a representative of a prospective transferee to enter the Archives to view the collection.
53. The goal of the University's secret strategy was to operate the Institute on their own terms without regard to the 1973 Agreement with the Schoenbergs, or any of its amendments. Despite its promises, the University never intended to allow the Schoenbergs to transfer the Archives pursuant to paragraph 8.6.
54. As the University intended, the Schoenbergs relied on the representations by the University that it had agreed to transfer the Archives pursuant to paragraph 8.6 of the Agreement. The Schoenbergs immediately undertook to locate a new institution willing to house the Archives.
55. Although certain documents produced in discovery in August 1995 evidenced the University's strategy, the University's repeated statements in pleadings and in the press that it would permit the transfer of the Archives led the Schoenbergs to believe that the University in fact intended to carry through on its promise to transfer the Archives. The Schoenbergs relied on these further statements in pleadings and in the press and continued to seek a new institution.
56. However, on March 15, 1996, shortly after the University became aware that the Schoenbergs were making progress in finding a new institution and had visited institutions in Europe and New York, the University revealed its duplicity when it filed a cross- complaint seeking a declaration that the Archives would remain at the University with the Schoenbergs "stripped of their powers under the Agreements between the parties." In the cross- complaint, the University maintained that its agreement to transfer the Archives had merely been an "offer" that had been rejected. The Schoenbergs are informed and believe that the University never intended to comply with its agreement to transfer the Archives.
57. The Schoenbergs have spent a large amount of time and money negotiating with prospective transferees, based on the University's false promise to transfer the Archives. As a result of the University's false promises, the Schoenbergs have been damaged in amount to be proven at trial. Further, the Schoenbergs' ability to find a new transferee institution has been damaged by the University's false promises. The transfer of the Archives will be delayed as a direct consequence. Additionally, the reputation of the Schoenbergs has been damaged because the Schoenbergs had represented to numerous institutions that the University had agreed to the transfer of the Archives.
58. The Schoenbergs are informed and believe that the false promises made by the University were made with the specific intent to cause injury to the Schoenbergs, and that such actions were malicious, fraudulent and oppressive, carried out with willful and conscious disregard for the Schoenbergs' rights and out of hatred and ill-will. As such, the Schoenbergs are entitled to punitive and exemplary damages under Civil Code section 3294 against the University in an amount sufficient to punish it and to deter it from future similar conduct.
WHEREFORE, the Schoenbergs pray for judgment on their cross- complaint as follows:
ON THE FIRST CAUSE OF ACTION (1) For damages to the Schoenbergs' reputation and the reputation of the Institute; (2) For special damages related to the difficulties in finding a new location for the Institute; (3) For damages for emotional distress caused to the Schoenbergs; (4) For presumed damages; (5) For punitive damages;
ON THE SECOND CAUSE OF ACTION (1) For monetary damages according to proof; (2) For evidentiary sanctions; (3) For punitive damages;
ON THE THIRD CAUSE OF ACTION (1) For monetary damages according to proof; (2) For presumed damages;
ON THE FOURTH CAUSE OF ACTION (1) For monetary damages according to proof; (2) For presumed damages; (3) For punitive damages;
ON ALL CAUSES OF ACTION (1) For costs of suit; and (2) For any and all further relief as the Court may deem just and proper.
KATTEN MUCHIN ZAVIS & WEITZMAN
By: E. Randol Schoenberg
Attorneys for Plaintiffs, Cross- defendants and Cross-complainants
NURIA SCHOENBERG NONO, RONALD R. SCHOENBERG AND LAWRENCE A. SCHOENBERG
VERIFICATION
State of California, County of Los Angeles
I have read the foregoing document entitled "SCHOENBERGS' VERIFIED CROSS-COMPLAINT FOR DEFAMATION, SPOLIATION OF EVIDENCE, BREACH OF CONTRACT, AND FRAUDULENT MISREPRESENTATION" and know its contents.
I am a party to this action.
The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true.
Executed on May __, 1996 at Los Angeles, California.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
______________________________
LAWRENCE A. SCHOENBERG