Friday, February 20, 2009
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Court Allows Suit Over Serial Killer Memorabilia Comments
By STEVEN M. ELLIS, Staff Writer
A man involved in a failed bid to open a serial-killer-themed museum with the singer of rock band Korn can proceed with a suit over negative comments the musician made about art and artifacts he surrendered under a settlement agreement, this district’s Court of Appeal ruled yesterday.
Concluding Arthur Rosenblatt demonstrated a probability of prevailing on breach of contract and fraud claims after Jonathan Davis’s comments that glorifying “these people and what they did” is “f**ked up” appeared on the Internet, allegedly destroying the property’s value, Div. Two ruled in an unpublished opinion that the action was not a strategic lawsuit against public participation.
Davis collected serial killer art and artifacts—including Ted Bundy’s Volkswagen, two of John Wayne Gacey’s clown suits, a confession signed by Albert Fish, and paintings and drawings by Gacey and Richard Ramirez—and agreed to turn the memorabilia over under a settlement agreement after Rosenblatt, a curator of historical exhibits who sued when the pair’s oral deal to open a museum failed.
The singer turned over the Volkswagen on Dec. 2, 2005 and the remaining property one month later, and then signed the agreement two days later. However, Rosenblatt initially refused to dismiss the suit and brought a separate action for breach of the settlement agreement after the statements by Davis appeared on websites in the following two weeks.
The agreement provided that Davis would not “publicly disparage or otherwise say anything negative” about the memorabilia, and Rosenblatt pointed to articles published on at least five websites beginning Dec. 13, 2005 in which Davis said he was giving up his serial killer collection because of the “negativity” it brought into his house, and because he realized it was no longer as “cool” as he once thought.
Davis, whose band has sold 30 million albums worldwide, moved to strike the complaint under California’s Anti-SLAPP statute, arguing that he made many statements he could not remember in interviews as the band’s frontman. He contended Rosenblatt could not prove he had not made the statements before signing the settlement agreement.
Rosenblatt did not dispute the statements arose from protected activity, but claimed he was likely to prevail on his causes of action, noting that the statements raised authenticity questions as to the Volkswagen, killing a proposed sale. He also submitted declarations from an expert on publishing practices in the entertainment journalism industry, and declarations from himself and another expert on the negative effect on ability to use the memorabilia to generate revenue.
Joe Franklin, a celebrity interviewer, testified that the websites would not have delayed publication of a celebrity interview by as much as a week given market competition.
Arthur Weinstein, an event producer and owner of large-scale entertainment venues in New York City, estimated Davis’s band’s fan base at approximately two million people. He opined that some percentage could reasonably be expected to patronize a serial killer museum.
Los Angeles Superior Court Judge Elizabeth A. Grimes denied the motion and Davis appealed, but Justice Victoria M. Chavez wrote that Rosenblatt had provided sufficient evidence of a breach and resulting harm to support the dismissal.
She similarly commented that Rosenblatt showed a likelihood of prevailing on the fraud action, explaining:
“Plaintiff presented evidence that defendant agreed to refrain from making disparaging statements about the released property; that defendant’s agreement to do so was an important part of the settlement; that defendant made negative statements about the Bundy vehicle and other serial killer art that were published between December 13 and 16, 2005; and that plaintiff was unable to sell the Bundy vehicle and other items of the released property after defendant’s statements were published.
“This evidence was sufficient to support a prima facie claim for fraud by false promise.”
Presiding Justice Roger W. Boren and Justice Judith M. Ashmann-Gerst joined Chavez in her opinion.
Los Gatos attorney Louis S. Abronson represented Rosenblatt, while Edwin F. McPherson and Tracy B. Rane of the Los Angeles firm McPherson & Associates represented Davis.
The case is Rosenblatt v. Davis, B203915.
Copyright 2009, Metropolitan News Company