Seven months into the process, Tower Theatre ownership won two major victories in court this week to clear up the path for the sale of the theater to Adventure Church.
Fresno County Superior Court Judge Rosemary McGuire ruled Wednesday to expunge the lis pendens on the property that Tower Theatre tenant Sequoia Brewing filed in hopes of halting the sale.
Wednesday’s ruling comes a few months after McGuire initially decided against Sequoia Brewing when the brewery first took to court to stop the sale from going through.
Sequoia Brewing appealed her decision, but the appellate court sent it back to McGuire, who ruled that the brewery’s claim of a right of first refusal in the property’s sale is not valid.
In her ruling, McGuire said the right of first refusal portion of the lease “may be too vague to be enforceable” because it does not define how both parties are supposed to calculate the purchase price for Sequoia Brewing’s building.
McGuire said the city would also have to conduct a “parcel split” as well as approve a parcel map, which would also require approval from Tower Theatre owner Lawrence Abbate and the brewery.
“Thus, there are many contingencies that must occur before the tenant would be able to complete the purchase of the separate premises parcel, and those contingencies might never come to pass even if plaintiff offered more than what the third party buyer offered to purchase the property,” McGuire wrote.
“As a result, it is not clear that the purchase option or right of first refusal is even a valid and enforceable agreement.”
McGuire also found that Sequoia Brewing has not provided enough evidence to support its claims on the property.
“[Sequoia Brewing] contends that it has a reasonable likelihood of prevailing on the merits of its claims because defendant violated the terms of the lease when it entered into the sale contract with the Church without first giving [Sequoia Brewing] an opportunity to purchase the parcel,” McGuire wrote.
“However, defendant has presented evidence that it did give [Sequoia Brewing] notice and an opportunity to purchase the parcel for the price of $1.2 million. [Sequoia Brewing] has not presented any evidence that the offered price was not a fair and reasonable price for the property, and the defendant’s offered price is supported by a professional appraisal. Plaintiff has also failed to show that it would even be able to purchase the property if given the chance to do so.”
On Thursday, one day after McGuire’s ruling, Fresno County Superior Court Judge Tyler Tharpe blocked the City of Fresno’s attempt at using eminent domain to take over the property.
Tharpe denied the city the right to enter the Tower Theatre for an appraisal inspection because the city’s lawyers did not file the lawsuit correctly.
City attorneys named Tower Theater Properties, Inc. in the petition, but Tower Theatre Productions owns the property.
“The correct owner of record should be named in the petition and served with process, and this has not yet been done,” Tharpe wrote.
The city can amend the petition to clear up the error and try again, Tharpe said.
Adventure Church Pastor Anthony Flores was excited that the Tower Theatre ownership picked up two victories in court.
“We’re looking to get this across the finish line,” Flores told The Sun. “We’re getting all of our ducks in a row now. We’re just really excited. We feel vindicated.”
Sequoia Brewing has 20 to file an appeal regarding McGuire’s ruling. Flores said he is not expecting the brewery to appeal once again, but he would not be surprised. If the 20-day period passes without an appeal, Flores expects Adventure Church and Abbate to move expeditiously to complete the sale.
Adventure Church has been working with Abbate to put on shows at the theater since June 15, and Flores said the church will honor all shows that Abbate has scheduled – which are booked through December – if the church purchases the theater.
Even though Sequoia Brewing’s lawsuit has postponed the sale for seven months, Flores said Adventure Church is still open to splitting the property up and allowing the brewery to purchase the building that it occupies.