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A judge can change his mind, right?
After taking a day to deliberate after a hearing on Thursday, LA Superior Court judge Richard Stone has reversed his tentative ruling and decided to dismiss Kevin Costner‘s allegation that Morgan Creek fraudulently concealed profits from the 1991 hit Robin Hood: Prince of Thieves.
Costner’s fraud claim was previously rejected by the judge in February and on a second try, the actor’s attorneys attempted to point to Morgan Creek’s duty to disclose “truthful, accurate, full, and complete” revenue information on profit participation statements. It’s Costner’s contention that the film company intentionally failed to do so.
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But for his fraud claim to survive a demurrer, Costner has to distinguish it from his breach of contract claim.
“At present, all allegations related to this [cause of action] are predicated on duties imposed on the defendant pursuant to the contract between the parties,” writes Judge Stone.
Costner must allege some duty that is independent of the contract, and Judge Stone says that he “believes that there is an absence of an additional duty, beyond that which was required in the contract to establish sufficient evidence of” fraud.
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In other words, Morgan Creek had an obligation to give him accurate profit participation statements so that can’t serve as the basis for a fraud claim.
The one solace that Costner can take is that the judge is allowing him another opportunity to amend the fraud allegations — but the judge warns that it’s the last try.
The judge has also thrown out Costner’s conversion claim and the actor won’t get an opportunity to bring that one back.
Costner still has the plain ol’ breach-of-contract claim, of course, but that one doesn’t figure to bring as much in damages as a fraud claim would at a trial that has been tentatively scheduled for March 2014.
Morgan Creek is represented by Patricia Glaser and Craig Marcus at Glaser Weil. Costner is represented by Marty Singer, Allison Hart and Michael Holtz at Lavely & Singer.
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