Symphony Wins Right to Convert Fox Theatre

A judge’s ruling Thursday removed the remaining obstacles to the San Diego Symphony’s conversion of the Fox Theatre into an orchestra hall.

The ruling by Superior Court Judge Mack Lovett against the Nederlander Organization and for the symphony paved the way for the symphony’s inaugural concert and gala celebration at the Symphony Hall, scheduled for Nov. 2.

Lovett’s denial of a request for a preliminary injunction by the Nederlander Organization decides the question of who will exercise possession of the one-time movie palace, but Nederlander, one of the country’s two largest commercial theater producers, is expected to continue its suit against the symphony seeking monetary damages.

Nederlander, producer of the San Diego Playgoers series, contends that the symphony has illegally deprived it of possession of the Fox Theatre based on a 1981 contract. That contract, co-signed by San Diego Fox Productions Inc., runs through 1993 and is alleged by Nederlander to be still valid.

In giving the reasons for his decision, Lovett wrote that Nederlander had failed to prove that its damages, suffered by not being able to stage plays in the Fox Theatre, are irreparable. “Money damages can adequately compensate (Nederlander) for any damages suffered,” he wrote.

“We won,” said Richard Bass, symphony general manager. “It feels real good. From the day of the first hearing we knew there would be no problem of seating in the hall. The judge had said that. So we had already breathed our main sigh of relief. What’s in question is our relation with the document between Nederlander and the previous owners. But we can proceed in what we’re doing at this time.”

With the primary issue resolved, the symphony is clearly the landlord of the theater, at least until a trial is held.

The symphony has undertaken a $6.5-million renovation, converting the theater to an orchestra hall. More than $4 million in cash and pledges has been raised. A 1984 agreement with Charlton Raynd Development Co. authorized the symphony to use the theater. Charlton Raynd is developing the entire block where the theater stands. Ultimately a 33-story office tower will be built above the theater and an 18-story Westin Hotel will be adjacent to the office-theater complex.

Previously the symphony had performed its regular season concerts at the Civic Theatre. The Fox Theatre, symphony officials have maintained, will provide a more gracious space for symphonic music-making.

“Absolutely perfect,” is the way music director and conductor David Atherton has described the Fox’s acoustics for symphony performances. The former movie house will seat about 2,250 after the renovation.

By moving to its own Symphony Hall, the symphony frees up the highly booked Civic Theatre. Last season the symphony played a 31-week season. In 1985-86 it is offering its musicians 45 weeks of employment, including the summer pops season. The new season in the 56-year-old theater officially opens Nov. 7 with a concert of Mozart, Tchaikovsky and a world premiere, “Ceremonial for Orchestra,” by Pulitzer Prize-winning composer-in-residence Bernard Rands. But the week before that, the hall will be christened with a gala inaugural concert and fund-raising celebration.

The Nov. 2 fund-raiser includes a dinner-reception and concert. The concert will be hosted by actor Hal Linden of “Barney Miller” fame and will feature such luminaries as actor-singers Joel Grey and Diahann Carroll, dancer Ben Vereen, mellow rocker Toni Tennille, flutist James Galway and jazz pianist Oscar Peterson.

While the way has been cleared for the symphony’s operation of the theater, the symphony may still be subject to financial damages in a subsequent court case with Nederlander.

After Thursday’s ruling, Nederlander attorney Neil Papiano said, “We’re pleased that it was close enough a question that he took a long and strong look at it. So we’ll proceed with trial. I don’t know what the court calendar is here, but it could be a couple of years. Unfortunately we’ll not be able to do any light opera during that time.”

Defendants in the case are the San Diego Symphony Orchestra Assn., San Diego Fox Productions Inc., and Charlton Raynd Development Co.