Graham v. Scissor-Tail, Inc.

171 Cal.Rptr. 604 (1990)

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Nature of the Case

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Facts

P is an experienced promoter and producer of musical concerts. Leon Russell, is a successful performer and recording artist and the leader of a musical group. D is wholly owned by Russell. David Forest Agency, Ltd. (D1) was, at the time here relevant, acting in the capacity of booking agent for D. Ds decided a personal appearance tour was in order. They immediately contacted P who had previously promoted a number of Russell concerts. Four contracts were prepared covering, concerts at Ontario, Oakland, Long Island, and Philadelphia. P signed all four contracts; D only signed the Ontario and Oakland concerts. The contracts were all prepared on an identical form known in the industry as an A.F. of M. form B contract; in this case, each bore the heading of the D1 agency. The contracts designated P as the 'purchaser of music' or 'employer,' the seven members of the group as 'musicians.' The contracts did not speak explicitly to the question of who was to bear any eventual net losses. The contracts did provide that all controversies involving matters within the competence of Locals of the Federation arising out of this contract, shall be submitted to, heard, arbitrated and determined by the person, persons, or body specified by the rules, By-laws, or practices of the Local in whose jurisdiction the services have been or are to be performed in accordance with the procedures in such rules or By-laws. The Ontario concert resulted in a net loss of some $63,000. The Oakland concert resulted in a net profit of some $98,000. A dispute arose among the parties over who was to bear the loss sustained in the Ontario concert and whether that loss could be offset against the profits of the Oakland concert. Ds contend that P was to bear all losses from any concert without offset. P contends that under standard industry practice and custom relating to 85/15 and 90/10 contracts such losses should accrue without offset to D. P filed an action for breach of contract, declaratory relief, and rescission against all Ds. D petitioned to compel arbitration. After discovery, the court granted D's petition and ordered arbitration. No hearing date was set, and eventually, A.F. of M.'s international executive board issued a decision and awarded Ds their claim of $53,000. P protested this procedure. The matter was reopened and set for hearing. P had been placed on the union's defaulter's list. D increased their claim and also sought attorney fees. The referee recommended that P be ordered to pay to D the amount of its original claim, $53,000. D filed a petition in the superior court to confirm the award; P filed a petition to vacate it. Judgment was entered accordingly. D then filed a cost bill which included an item of some $16,000 for attorney's fees. The court granted P's motion to tax costs, striking this item on the basis of the referee's determination. P appealed. P claims that the contract requirement for arbitration of disputes before the A.F. of M. -- was an unenforceable contract of adhesion.