The City of Fresno could take ownership of the Tower Theatre on Monday.
On Wednesday, Fresno County Superior Court Judge Kristi Culver Kapetan tentatively ruled against a motion by Adventure Church to halt the sale of the theater to the city.
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Thursday, the parties appeared in court for oral arguments.
After hearing the arguments, Kapetan said she will issue her final ruling on Monday.
The city and theater owner Laurence Abbate were scheduled to close escrow on Friday, but the attorney for the theater said in court Thursday that the parties will wait for the final ruling on Monday.
In her tentative ruling, Kapetan denied Adventure Church’s request to place a hold on the sale because Sequoia Brewing’s right of first refusal prevented the church from completing the purchase.
“[Adventure] Church’s contract with Tower is not specifically enforceable because it covers the same subject matter as [Sequoia Brewing’s] prior, enforceable contract which created superior rights,” Kapetan wrote in her tentative ruling.
“Compelling specific performance would result in Tower violating its prior contract with [Sequoia Brewing]… Compelling Tower’s performance of Church’s contract to purchase the parcel would force Tower to violate its existing contractual obligation with [Sequoia Brewing] to sell [Sequoia Brewing] the Premises.”
Another key cog in Kapetan’s tentative ruling revolved around Adventure Church’s ability to come up with the cash to purchase the property.
As noted in the tentative ruling, the church has obtained financing through America’s Christian Credit Union, which “remains ready, willing, and able to supply the loan proceeds.”
But Kapetan notes that the credit union is only willing to supply the loan provided the expungement of the lis pendens on the property and the ensure that Sequoia Brewing’s right of first refusal is out of the way.
In court Thursday, Adventure Church attorney David Emerzian argued that this whole situation is Abbate’s fault, saying that he has played both sides of the deal to come out on top.
“The theme of our motion is it’s a tale of two Towers. We have Tower and Mr. Abbate telling one story before one court and then telling a different story before this court. So in the underlying litigation, Tower argues that the lis pendens prevents them from consummating a sale. Well now Tower argues that the lis pendens is no big deal – ‘You should have closed and moved forward with that lis pendens.’ So I ask: Which one is it? Tower was willing to sell before. Adventure Church was willing to buy,” Emerzian told Kapetan.
“There’s no evidence to dispute that prior to the litigation that Adventure Church had the funding in place. There’s been over $800,000 in deposit money in escrow since early last year. There’s been no cancellation instructions that the Tower party served to Adventure Church. And why is that? Because we believe and we think the evidence will show Mr. Abbate was playing all sides, and he was waiting for the best possible deal.
And when he got that deal with the City of Fresno where they were going to pay a premium, pay his attorneys’ fees, pay the attorneys’ fees that are owed to [Sequoia Brewing], he took that deal. And now the Tower has turned their focus to why Adventure Church couldn’t perform and align their interest with [Sequoia] Brewery to move forward with that deal.”
On the flip side, Tower Theatre attorney Matt Fletcher argued that Adventure Church made a mistake in not seeing Sequoia Brewing’s right of first refusal when the church initially agreed to purchase the theater.
Emerzian responded by saying that the church questioned Abbate about that and was told not to worry about it.
