Judge James C. Chalfant, Case Number: 24STCV34092, Date: 2025-01-28 Tentative Ruling

Plaintiff Graceland Holdings, LLC (“Graceland”) and Elvis Presley Enterprises, Inc. (“EPE”) seek a writ of possession and turnover order against Defendants GWS Auctions, Inc. (“GWS Auctions”), Brigitte Kruse (“Kruse”) (collectively, “GWS Auctions Defendants”), Sherry McDonald (“Sherry”), and Thomas McDonald (“Thomas”) (collectively, “McDonald Defendants”) to recover materials previously owned by Colonel Tom Parker in relation to his management of Elvis Presley.

The court has read and considered the moving papers, oppositions, and reply, and renders the following tentative decision.

On December 24, 2024, Graceland and EPE filed the verified Complaint against GWS Auctions, Kruse, Sherry, and Thomas alleging causes of action for writ of possession (claim and delivery), (2) conversion, (3) violation of California statutes governing auction houses and auctioneers, (4) declaratory relief, and (5) unjust enrichment. The Complaint alleges in pertinent part as follows.

Plaintiffs operate under The Elvis Presley Trust and conduct the business of the estate of the late American music star Elvis Aaron Presley. Compl., ¶1. Plaintiffs seek to recover from Defendants personal property of at least seventy-four unique, irreplaceable documents and items of memorabilia belonging to them which Defendants offered for sale at auction (the “Property”). Compl., ¶1-2.

In 1990, Plaintiffs had the opportunity to acquire directly from Colonel Tom Parker (“Parker”), Elvis Presley’s lifelong manager, a collection of Elvis-related documents and memorabilia. Jack Soden, who at the time was the Executive Director of Plaintiff EPE and is now CEO, negotiated the purchase directly with Parker (the “Parker Agreement”). Compl., ¶14. A letter agreement documenting the Parker Agreement was executed on October 23, 1990. Compl., ¶15, Ex. 1.

The Parker Agreement provided for the purchase by Plaintiffs of Col. Parker’s “entire collection” of Elvis Presley-related items, and additional items related to Col. Parker’s career, no matter where they were located. Compl., ¶16. However, some materials intended to be transferred to Plaintiffs ended up in the possession of Parker’s former employee Greg McDonald. Compl., ¶20.

On December 21, 2021, Kruse, who was employed by GWS Auctions, sent an email to Angela Marchese, Vice President of Graceland. Compl., ¶23, Ex. 2. Kruse’s email indicated that she was aware Greg McDonald was in possession of property that Kruse knew belonged to Plaintiffs. Sonden contacted Greg McDonald to retrieve the property, who told Sonden that he possessed only photocopies, not originals. Compl., ¶25. Only recently have Plaintiffs learned that Greg McDonald did have original Parker materials related to Elvis Presley and the Property has been listed for sale by Kruse on the GWS Auctions website. Compl., ¶26.

On December 3, 2024, Plaintiffs’ counsel wrote a cease-and-desist letter to Kruse and informed her and GWS Auctions that hundreds of items GWS Auctions had listed for sale in an auction entitled “THE LOST COLLECTION OF ELVIS, COL. TOM PARKER & MORE” were Plaintiffs’ Property. Compl., ¶33, Ex. 3. Requests for the Property to be returned have not been fruitful and the auctions were completed. Compl., ¶34-36, Exs. 4, 5.

Plaintiffs pray for (1) a writ of possession for the Property, (2) a judicial declaration that they own the Property, (3) compensatory and consequential damages to be proven at trial, (4) punitive damages, (5) interest and attorney fees, (6) compensation under Civil Code section 3336, and (7) such other and further relief as the court deems just and proper.

The verified Complaint was filed on December 24, 2024. On January 2, 2025, the court (Dept. 82) heard Graceland’s ex parte application for writ of possession and temporary restraining order (“TRO”). Pursuant to a stipulation of the parties, the court issued a TRO for the Property and ordered that the ex parte application be treated as a noticed application.

On January 8, 2025, the court (Dept. 82) granted the application of George A. Michak, Esq., to be admitted pro hac vice to represent Defendants GWS Auctions and Kruse in this case.

A writ of possession is issued as a provisional remedy in a cause of action for claim and delivery, also known as replevin. See Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1288. As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment.

A writ of possession is available in any pending action. It also is available where an action has been stayed pending arbitration, so long as the arbitration award may be ineffectual without provisional relief. See CCP §1281.7.

Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for an order for a writ of possession. Unlike attachment, where Judicial Council forms are optional, the parties must use the mandatory approved Judicial Council forms in a claim and delivery proceeding. (Judicial Council Forms CD-100 et seq.).

A plaintiff must make a written application for a writ of possession. CCP §512.010(a), (b); (Mandatory Form CD-100); CCP §512.010(a). A verified complaint alone is insufficient. 6 Witkin, California Procedure, (5th ed. 2008) §255, p.203. The application may be supported by declarations and/or a verified complaint. CCP §516.030. The declarations or complaint must set forth admissible evidence except where expressly permitted to be shown on information and belief. Id.

The application must be executed under oath and include: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the plaintiff's claim is based on a written instrument, a copy of it must be attached; (2) A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiff’s best knowledge, information, and belief; (3) A specific description of the property and statement of its value; (4) The location of the property according to the plaintiff’s best knowledge, information, and belief. If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and (5) A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff’s property. Alternatively, a statement that if the property was seized for one of these purposes, it is by statute exempt from such seizure. CCP §512.010(b).

Before noticing a hearing, the plaintiff must serve the defendant with all of the following: (1) A copy of the summons and complaint; (2) A Notice of Application and Hearing; and (3) A copy of the application and any supporting declaration. CCP §512.030(a). If the defendant has not appeared in the action, service must be made in the same manner as service of summons and complaint. CCP §512.030(b).

Each party shall file with the court and serve upon the other party any declarations and points and authorities intended to be relied upon at the hearing. CCP §512.050. At the hearing, the court decides the merits of the application based on the pleadings and declarations. Id. Upon a showing of good cause, the court may receive and consider additional evidence and authority presented at the hearing, or may continue the hearing for the production of such additional evidence, oral or documentary, or the filing of other affidavits or points and authorities. Id.

The court may order issuance of a writ of possession if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and (2) The undertaking requirements of CCP section 515.010 are satisfied. CCP §512.060(a). “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” CCP §511.090. This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. Witkin, California Procedure, (5th ed. 2008) §261, p.208. A defendant’s claim of defect in the property is not a defense to the plaintiff’s right to possess it. RCA Service Co. v. Superior Court, (1982) 137 Cal.App.3d 1, 3.

No writ directing the levying officer to enter a private place to take possession of any property may be issued unless the plaintiff has established that there is probable cause to believe that the property is located there. CCP §512.060(b).

The successful plaintiff may obtain a preliminary injunction containing the same provisions as a TRO that remains in effect until the property is seized by the levying officer.[1] CCP §513.010(c).

The court may also issue a “turnover order” directing the defendant to transfer possession of the property to the plaintiff (See Mandatory Form CD-120). The order must notify the defendant that failure to comply may subject him or her to contempt of court. CCP §512.070. The turnover remedy is not issued in lieu of a writ, but in conjunction with it to provide the plaintiff with a less expensive means of obtaining possession. See Edwards v Superior Court, (“Edwards”) (1991) 230 Cal.App.3d 173, 178.

Generally, the court cannot issue an order for a writ of possession until the plaintiff has filed an undertaking with the court (Mandatory Form CD-140 for personal sureties). CCP §515.010(a). The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff. Id. The undertaking shall be in an amount not less than twice the value of the defendant's interest in the property or in a greater amount. Id. The value of the defendant's interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant’s interest in the property. Id.

However, where the defendant has no interest in the property, the court must waive the requirement of the plaintiff’s undertaking and include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of CCP section 515.020(b). CCP §515.010(b).

Soden is the CEO of EPE. Soden Decl., ¶1. He started working for EPE in 1982. Soden Decl., ¶1.

Graceland is a Delaware limited liability company. Its primary purpose is to serve as a holding company for a variety of Elvis Presley related business entities including, but not limited to, EPE. Soden Decl., ¶3.

EPE is a Tennessee corporation. Its primary purpose is to serve as owner and operator of the Graceland attraction and estate as well as Elvis Presley-related live events and exhibits. Soden Decl., ¶4.

At issue in this litigation is the Property consisting of hundreds of documents that once belonged to talent manager and concert promoter Parker, who acted as Elvis Presley’s manager from approximately 1956 until Elvis Presley’s death in 1977. Parker remained involved in the management of the Elvis Presley estate until his own passing in 1997. Soden Decl., ¶5. Soden knew Parker very well and dealt with him regularly. Soden Decl., ¶6.

On October 23, 1990, Soden, on behalf of Graceland, a division of EPE, and Parker entered into the written Parker Agreement for the sale of Parker’s "entire collection" of materials relating to Elvis Presley, including “Elvis related memorabilia, Colonel Parker's Wonderful World of Show Business, and some additional items regarding Parker’s own career in the entertainment business. Soden Decl., ¶¶ 6-9, Ex. A.

Under the Parker Agreement, all memorabilia, including all documents related in any way to Elvis Presley or Col. Parker’s career was to be included in the sale, irrespective of where it was located. The Agreement carved out only a select few items of memorabilia unrelated to Elvis Presley that were to be personally selected by Parker from the materials he kept at his home in Las Vegas, NV. Soden Decl., ¶10.

Parker represented to Soden that he had not sold or transferred any Elvis Presley-related materials to any person prior to the Parker Agreement, and therefore EPE would be the first and only buyer. Soden Decl., ¶15. Parker told Soden that Plaintiffs were solving a big problem for him because he wanted to be sure that someone who cared about Elvis Presley’s legacy, and his own legacy, would preserve it. He appreciated that Plaintiffs’ mission was to do precisely that, which is why he agreed the sale would include every scrap of paper or item of memorabilia as well as all of Parker’s possessions in his Tennessee home, including his furniture and linens. Soden Decl., ¶17.

Thus, the parties’ intention in the Parker Agreement was to transfer all material related in any way to Elvis Presley’s life and career, and to Parker’s entertainment career, regardless of where it was located, with the exception of the few select items Parker kept in his home in Las Vegas Nevada. The material at Parker’s Las Vegas home was the only material he would keep. Soden Decl., ¶13.

Parker was fanatical about retaining paperwork and memorabilia. As such, the collection contained many thousands of items stored in numerous locations. Parker agreed to work with EPE to ensure that this material was collected and transferred to EPE. This involved the use of large moving trucks and loading of material from several locations. Soden Decl., ¶11.

The transfer of the documents and memorabilia was completed in the weeks following the signing of the Parker Agreement, approximately late October and early November of 1990. Parker represented to Soden that all the property subject to the Parker Agreement had been transferred to EPE. Soden Decl., ¶12.

At the time of the sale, Greg McDonald was an employee of Parker. Greg McDonald had worked with Parker since he was 16 years old, acting as a gopher, chauffeur, and all-around helper. Parker never had children of his own and over the years Greg McDonald became close to Parker. Soden Decl., ¶14.

On May 9, 2020 Colonel Parker’s widow Loanne Parker passed away in Nevada. Soden Decl., ¶19.

In 2021, a series of events caused Plaintiffs to suspect that not every item of property that was supposed to be included in the Parker Agreement had actually been turned over. Soden Decl., ¶18. In December of 2021, Elvis Presley's widow, Priscilla Presley, contacted Angela Marchese (“Marchese”), Vice President of Graceland, and asked her to contact Kruse of GWS Auctions to discuss information certain documents and items in Greg McDonald's possession that had formerly belonged to Parker. Marchese Decl., ¶3.

On or about December 21, 2021, following several conversations between them, Kruse sent Marchese an email stating that Greg McDonald was in possession of documents and materials that had belonged to Parker. In her email and in subsequent conversations, Kruse stated that there were perhaps thousands of such documents and these materials were involved in "theft" and rightfully belonged to EPE. Marchese Decl., ¶4, Ex. A; Soden Decl., ¶20.

Marchese’s report of her conversation with Kruse prompted Soden to contact Greg McDonald and demand that any documents and materials related to Elvis Presley or Parker that belonged to Parker be immediately turned over to EPE as such property was the subject of the Parker Agreement. Greg McDonald assured Soden that this was a misunderstanding and that, despite Kruse’s report, he only had copies of documents in his possession and had no original documents or other memorabilia belonging to Parker. Soden had known Greg McDonald for many years and believed him. Kruse also backpedaled from her claims about Greg McDonald had material belonging to EPE. As a result, Soden did not pursue the matter any further. Soden Decl., ¶21.

Recently, Plaintiffs learned of the auction listings of the Property and now believe that that Greg McDonald was not honest with Soden and Kruse was not honest with Marchese. Soden Decl., ¶22.

At the end of November 2024, Marchese was informed that GWS Auctions had listed a number of what appeared to be original documents and items of memorabilia related to Parker and Elvis Presley which should have been included in the Parker Agreement. Marchese Decl., ¶7. Marchese has examined each of the GWS Auction listings and, as the chief historian at Graceland, confirms that a significant volume of Elvis Presley materials formerly owned by Parker, which should be at Graceland, were included. Each of 74 items of the Property listed in the GWS Auctions auction at https://bid.gwsauctions.com/auction/the-lost-collection-of-elvis-col20 tom-parker-more-193/bidgallery/perpage NjA in the auction titled "The Lost Collection of Elvis, Col. 21 Tom Parker & More (402 lots)" came from Parker and were supposed to be included in the Parker Agreement. Marchese Decl., ¶8. EPE views the Property as unique, of great historical value, and irreplaceable. Soden Decl., ¶24.

Plaintiffs’ in-house legal counsel, Alexis Muller, Esq., sent a December 3, 2024 cease-and- desist letter to GWS Auctions demanding that the auctions be cancelled but GWS Auctions’ counsel denied Plaintiffs’ ownership of the Property. Newman Decl., ¶¶ 3-5. The Secretary of State website reveals that GWS Auctions has been in “Suspended FTB status since April 2, 2024. Newman Decl., ¶8, Ex.B.

Thomas is the son of Greg McDonald ("Greg"), who passed away in February, 2024. Thomas Decl., ¶1.

The Property was conveyed to Thomas by his father prior to his passing. Thomas Decl., ¶3. The Property was attained by Greg McDonald in his decades-long personal relationship with Parker and Elvis Presley, and was conveyed to Thomas with the express purpose of preserving Parker's legacy. Thomas Decl., ¶3.

Greg McDonald was very close to Parker. Greg started working closely with Parker in the late-1960s, starting as Parker's driver. Through his dedication and willingness to do anything Parker needed, Greg started taking on more and more. His loyalty and support did not go unnoticed, and Parker took Greg McDonald under his wing as a protege beginning in the late 1960s. McDonald Decl., ¶7.

In 1974, Col. Parker gifted Greg McDonald the Hound Dog Stuffed Animal (Auction I Lot 119) to give to Thomas at birth. This was in Greg's rightful possession long before the Parker Agreement. Thomas Decl., ¶9.

In the years after Elvis Presley’s death, Greg McDonald saved all the files and items he attained while working with Parker. Parker would do the same, and while he kept much of it, he gave Greg McDonald numerous items and files, knowing that Greg McDonald would preserve them well. On information and belief, Thomas lists numerous items of the Property that were gifted to Greg McDonald by Parker in 1978 or soon thereafter. Thomas Decl., ¶13. These items were in Greg McDonald's rightful possession long before 1990. In addition to these items, Parker gifted Greg 'McDonald 'Lot 130 Col. Tom Parker's RIAA Gold Award for 'Roustabout'" in the 1980s. Thomas Decl., ¶14. Many of these items were displayed in Greg McDonald’s home or office, or kept by him in storage. Thomas Decl., ¶16.

By the time the Parker Agreement was signed in 1990, Greg McDonald was not an employee of Parker, took no part in the negotiations, and knew little if anything about them. The listed items of Property was in Greg McDonald's rightful possession by 1990. Parker had no title to the items. Nor did he attempt to claim to any of the items as he had gifted them to Greg McDonald years earlier. Thomas Decl., ¶18.

In 2017, on the basis of their friendship, Loanne Parker assigned Parker's publicity rights to Greg McDonald, and appointed him as the sole and exclusive agent, manager, and representative of Parker's assets and business entities. Thomas Decl., ¶20, Ex. 1.

In 2020, Kruse met Greg McDonald to discuss auctioning some of the items in his possession. He declined to do so. On information and belief, this upset Kruse, who videotaped Greg McDonald without his knowledge and accused him of stealing items that belonged to EPE. Thomas Decl., ¶21.

Since his father’s passing, Thomas has been working to promote Parker's legacy. He plans to create a museum, memorializing Parker and correcting the false narratives surrounding him. To help raise revenue for the project, Thomas was reintroduced to Kruse in August 2024. He was unaware of the vile accusations she made about his father until this lawsuit was filed. Had he been aware of her allegations, he would never I have agreed to auction the items with her. Nonetheless, he agreed to auction the items with her on December 7th, 2024. Thomas Decl., ¶25.

Kruse is a spokesperson for Kruse GWS Auctions, Inc., a Florida corporation, and is not an owner. Kruse Decl., ¶¶ 3-5.

On or about November 18, 2024, Kruse GWS Auctions, Inc. accepted a consignment of personal property that had previously been owned by Greg McDonald (the "McDonald Collection"). Kruse Decl., ¶6. Based on Kruse’s communications with Marchese, Plaintiffs have been aware of the McDonald Collection and its contents since December 21, 2021. Kruse Decl., ¶11.

In November 2024, items from the McDonald Collection were advertised as being included in an auction conducted by GWS Auctions scheduled to occur on December 7, 2024. Kruse Decl., ¶12.

After Plaintiffs’ counsel sent a cease-and-desist letter, defense counsel sent an email to Plaintiffs’ counsel on December 5, 2024 asking for proof that the items in the McDonald Collection were included in the items purchased by Plaintiffs in 1990. Kruse Decl., ¶15, Ex. B. Plaintiffs’ counsel did not respond until December 9, and did not provide any support for the contention that Plaintiffs own any items in the McDonald Collection. Kruse Decl., ¶16, Ex. C.

At no time prior to, or since, the December 7, 2024 auction have Plaintiffs claimed or proven that any items in the McDonald Collection belonged to Parker on October 22-23, 1990 and were, at such time, located "at the Madison House in Tennessee" or in Parker's "house in Las Vegas, Nevada" as set forth in the Parker Agreement. Kruse Decl., ¶¶ 18-19.

Neither Kruse nor GWS is in possession of the Property. Kruse Decl., ¶20. Thomas possesses the Property and none of the auctioned items have been shipped to winning bidders. Kruse Decl., ¶¶ 20-22.

The definition of “Entire Collection” in drafts of the Parker Agreement did not include the words “those matters related to Colonel Parker’s Entertainment History located at the Madison House in Tennessee and those items graciously designated by Colonel Parker to be included from his house in Las Vegas, Nevada.” Reply Soden Decl., ¶3. These items were included because Parker was adamant that he wanted his own story to be told as well as Elvis Presley’s story. Reply Soden Decl., ¶3. Plaintiffs agreed to this provision to obtain all of Parker’s Elvis Presley memorability, although they were happy to collect Parker’s memorabilia as part of the transaction. Reply Soden Decl., ¶3.

The nature of the Property is not the sort of documents that would be gifted to someone. They include earning statements and 15 payroll slips to musicians who backed up Elvis Presley. Reply Soden Decl., ¶4. They are a subset of the same type of materials that Parker sold to EPE. It would make no sense for Parker to select a few items from these categories for safekeeping by Greg McDonald. Reply Soden Decl., ¶4. Parker was unequivocal in discussion with Soden in 1990 that he never sold or transferred such materials to anyone. Reply Soden Decl., ¶4. As stated, when Soden confronted Greg McDonald in 2021, the later was unequivocal that he had no original documents, he had only copies, and any originals would belong to EPE. Reply Soden Decl., ¶4.

At the ex parte hearing on January 2, 2025, George Michak, Esq. sought to appear pro hac vice for “GWS, Auctions, Inc.” Reply Luke Decl., ¶4. A search of the Florida Secretary of State’s website for “Kruse GWS Auctions, Inc.” turned up no entity by that name. Reply Luke Decl. ¶5.

Plaintiffs seek an order for writ of possession for the Property. The court may order issuance of a writ of possession if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and (2) The undertaking requirements of CCP section 515.010 are satisfied. CCP §512.060(a). “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” CCP §511.090. This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. Witkin, California Procedure, (5th ed. 2008) §261, p.208.

Plaintiffs contend that they own the Property under the Parker Agreement and rely on the legal theory of conversion. Conversion is any act of dominion wrongfully exerted over another’s personal property which constitutes actual interference with one's ownership or right of possession. Fischer v. Machado, (1996) 50 Cal. App. 4th 1069, 1073. It is a strict liability tort. Burlesci v. Petersen, (1998) 68 Cal. App. 4th 1062, 1065. Mem. at 7-8.

“The intent and desire of the parties is to convey the ‘Entire Collection’. The entire collection means all Elvis Presley memorabilia, Elvis-related memorabilia, Colonel Parker's Wonderful World of Show Business memorabilia, and those matters related to Colonel Parker’s Entertainment History located at the Madison House in Tennessee and those items graciously designated by Colonel Parker to be included from his house in Las Vegas, Nevada.”

“The Memorabilia of the ‘Entire Collection’ is further defined to mean any and all and every tangible photograph, paper writing, document, artifact owned or worn or used by Elvis Presley, any art, souvenir, movie poster, photo negative, image, color separation, legal document, filing cabinet, furniture, desk, carton, box, each and every item of memorabilia owned by Colonel Parker pertaining in any manner whatsoever to Elvis Presley memorabilia, Elvis-related memorabilia, Colonel Parker’s Wonderful World of Show Business memorabilia, and those matters related to Colonel Parker’s Entertainment History located at the Madison House in Tennessee and those items graciously designated by Colonel Parker to be included from his home in Las Vegas, Nevada….” Soden Decl., Ex. A (emphasis added).

Contract interpretation is a matter of law. Civil Code §§ 1636, 1639. Courts should interpret a contract based on the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made. Rice v. Downs, (2016) 248 Cal. App. 4th 175, 185-86. No extrinsic evidence may be received to vary the terms of a contract that is fully integrated. The existence of an integration clause in the contract is a key factor in determining whether the parties intended the contract as a final and complete expression of their agreement. Grey v. Am. Mgmt. Servs., (2012) 204 Cal.App.4th 803, 807. When the parties dispute the meaning of contract language, the first issue is whether the language is reasonably susceptible to the interpretation urged by the party. Dore v. Arnold Worldwide, Inc., (2006) 39 Cal.4th 384, 393. If so, the court must consider all credible evidence offered to prove the intention of the parties. Pacific Gas & Electric Co. v. G.W. Thomas Drayage, (1968) 69 Cal.2d 33, 39-40. The parties’ undisclosed intent or understanding is irrelevant to contract interpretation. Iqbal v. Ziadeh, (2017) 10 Cal.App.5th 1, 8-9.

The McDonald Defendants argue that Plaintiffs’ claim rests upon their overexpansive interpretation of the rights granted by the Parker Agreement. EPE CEO Soden declares that “once the sale was completed there would be no Elvis materials remaining in Colonel Parker’s possession.” Soden Decl., ¶16. This not only belies the express terms of the Parker Agreement, but also Soden’s own words, who wrote in a letter to Parker a year after the Parker Agreement was signed that “in its final form the acquisition become much more than we could have ever imagined because of your generosity…You ended up including and adding so much more to the collection than originally planned that there will never be exactly the right words.” Ex. B. Soden’s expectations were exceeded nine days later as EPE received more items from Parker on January 27, 1991. Ex. C. Seeing as it is impossible for EPE to attain “so much more” than everything Parker ever owned, it’s apparent that neither party understood the 1990 Agreement to be so expansive. McDonald Opp. at 4, 6, 10.

Plaintiffs correctly reply (Reply at 1) that the plain language of the Parker Agreement contains no geographic limitation on the transfer of “Elvis Presley memorabilia”. If there were any ambiguity, Soden explains that the definition of “Entire Collection” in drafts of the Parker Agreement did not include the words “those matters related to Colonel Parker’s Entertainment History located at the Madison House in Tennessee and those items graciously designated by Colonel Parker to be included from his house in Las Vegas, Nevada.” Reply Soden Decl., ¶3. These items were included because Parker was adamant that he wanted his own story to be told as well as Elvis Presley’s story. Reply Soden Decl., ¶3. Plaintiffs agreed to this provision to obtain all of Parker’s Elvis Presley memorability, although they were happy to collect Parker’s memorabilia as part of the transaction. Reply Soden Decl., ¶3. Parker sold to Plaintiffs all Elvis Presley-related items that he owned, possessed, or controlled, wherever located.

The GWS Defendants argue that, at no time prior to, or since, the December 7, 2024 auction have Plaintiffs claimed or proven that any items in the McDonald Collection belonged to Parker. GWS Opp. at 4-5.

The McDonald Defendants contend that Plaintiffs have not presented any evidence that the Property was obtained wrongfully after the Parker Agreement. Plaintiffs’ own recounting does not support the proposition that Parker possessed any of the Property after 1990. Plaintiffs assert that Parker was “known as a meticulous record keeper”, that both parties understood the Parker Agreement would transfer all materials related in any way to Elvis Presley’s career. Yet, Plaintiffs also believe that Greg McDonald acquired the Property “at some point following Parker’s death.” Compl., ¶22. Parker died in 1997, seven years after the Parker Agreement. How could he, a meticulous recordkeeper, have had in his possession 74 items that he believed belonged to EPE? It is far more logical that Parker did not possess these items at the time of the Parker Agreement. Moreover, Plaintiffs fail to show where the Property was located, how Greg McDonald allegedly stole it, and why Plaintiffs did not have it. McDonald Opp. at 11-13.

The McDonald Defendants add that nothing in the Parker Agreement purports to extend to items which were once in Parker’s possession, but which he gifted or gave away at some point earlier. The McDonald Defendants assert that Greg attained the items at issue in his long career and personal relationship with Col. Parker and Elvis. These were rightfully attained years, and sometimes decades, before the 1990 Agreement. McDonald Opp. at 10.

It is true that there is no evidence that Greg McDonald acquired the Property after the Parker Agreement, and that Parker could have gifted items before selling the remainder to Plaintiffs, but there are two problems. First, with the exception of a 1974 gift to Greg McDonald of the Hound Dog Stuffed Animal (Auction I Lot 119) that was a present for Thomas at birth (Thomas Decl., ¶9) and a gift to Greg McDonald of a 'Lot 130 RIAA Gold Award for 'Roustabout'" in the 1980s (Thomas Decl., ¶14), the McDonald Defendants show no specific gift to Greg McDonald by Parker before the Parker Agreement. The fact that the rest of the Property was in Greg McDonald's possession and displayed in his home or office, or kept by him in storage (Thomas Decl., ¶16) does not show ownership or a right to possess. Moreover, Thomas McDonald was born in 1974 and has not laid a foundation for a stuffed animal gift in the year of his birth or an award for “Roustabout” in the 1980s.

Second, Parker represented to Soden that he had not sold or transferred any Elvis Presley-related materials to any person prior to the Parker Agreement, and therefore EPE would be the first and only buyer. Soden Decl., ¶15. The McDonald Defendants argue that, if Parker made this representation, it is best read as referring to corporations, or auction houses that would jeopardize EPE’s mission. Parker would have no reason to account for every item he gave to friends and family before the Parker Agreement. McDonald Opp. at 10.

This may be true. However, the McDonald Defendants ignore the evidence that Soden contacted Greg McDonald and demanded that any documents and materials related to Elvis Presley or Parker that belonged to Parker be immediately turned over to EPE. Greg McDonald assured Soden that he only had copies of documents in his possession and had no original documents or other memorabilia belonging to Parker. Soden Decl., ¶21. This statement is inconsistent with Parker gifting originals to Greg McDonald.

Moreover, Soden reasonably explains that the Property includes documents not likely to be gifted to someone. They include earning statements and 15 payroll slips to musicians who backed up Elvis Presley. Reply Soden Decl., ¶4. These documents are a subset of the same type of materials that Parker sold to EPE. While it could have happened, it does not make great sense for Parker to select items from these categories and gift them to Greg McDonald. It is more likely that Greg McDonald legitimately possessed them, but they still belonged to Parker and were transferred by the Parker Agreement.[3]

At this stage, Plaintiffs need only show a probability of success to obtain a writ of possession, not that they necessarily will win at trial. To the extent there is any doubt for individual items of Property, it is plain from Plaintiffs’ mission that they will preserve and not sell or transfer the Property. Should Defendants prevail at trial, the Property can be returned to the McDonald Defendants. The same would not be true if the application were denied. The Property would be auctioned off and Plaintiffs would face the difficulty of third party bona fide purchasers.

Plaintiffs’ application is granted. As Defendants have shown no ownership interest in the Property, no bond is required. CCP §515.010(b). Plaintiffs have not submitted a proposed order for writ of possession after hearing and one must be submitted in the next two court days or it will be waived.

[1] If the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. CCP §513.010(c).

[2] The court has ruled on the written evidentiary objections of Thomas and Sherry, sometimes with a comment. Some objections were overruled under Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, Seelworkers of America, AFL-CIO, (1964) 227 Cal.App.2d 675, 712 (court may overruled objection if any portion of objected to material is admissible). The clerk is directed to scan and electronically file the court’s ruling.

[3] The GWS Defendants argue that they do not have possession of the Property. Neither Kruse, Defendant GWS Auctions, Inc., nor Kruse GWS Auctions, Inc. is in possession of any of the Property. Kruse Decl., ¶20. No items from the McDonald Collection have been shipped to winning bidders from the December 7, 2024 auction. Kruse Decl., ¶21. Thomas McDonald is in possession of those items from the McDonald Collection that are identified in Plaintiffs’ verified Complaint and there are currently no further auctions scheduled for unsold items in the McDonald Collection. Kruse Decl., ¶¶ 22-23. GWS Opp. at 2, 7. Nonetheless, the order will include the GWS Defendants as they have purported to auction the Property.

Finally, the GWS Defendants argue that Plaintiffs have improperly named GWS Auctions Inc., a California corporation, as a Defendant, but it was not involved in the December 7 auction. Kruse GWS Auctions, Inc., a Florida corporation, was. Kruse Decl., ¶¶ 3-6, 11, 12. GWS Opp. at 2. Plaintiffs rebut this argument by showing that a search of the Florida Secretary of State’s website for “Kruse GWS Auctions, Inc.” turned up no entity by that name. Reply Luke Decl. ¶5.