Metropolitan News-Enterprise


 Tuesday, February 24, 2009


Page 1


Court Upholds Discovery Sanctions Against Michael Jackson


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal yesterday upheld the dismissal of pop superstar Michael Jackson’s affirmative defenses to his former attorney’s claim for unpaid legal fees as a discovery sanction.

Div. Four in an unpublished opinion affirmed Los Angeles Superior Court Judge James C. Chalfant’s ruling that the singer’s failure to appear at a noticed deposition or to respond to written discovery demands had impaired Torrance-based Ayscough & Marar’s ability to address Jackson’s claims

Jackson retained the firm to represent him after he was sued by former business partner Marc Schaffel for $3.8 million in 2004.

Schaffel alleged that Jackson had failed to repay him for loans, cash advances and producing fees for his role in making television documentaries to improve Jackson’s image after the singer was acquitted of charges of child molestation.

A jury subsequently awarded Schaffel $900,000, but directed him to pay Jackson $200,000 to satisfy a countersuit alleging Schaffel misappropriated funds.

Ayscough & Marar also assisted Jackson in preventing the release of some information to the public and to lawyers in civil cases during his 2005 criminal trial, but terminated the relationship when Jackson stopped paying their bills.

In 2006, the firm filed suit against Jackson, MJJ Productions Inc., and Fire Mountain Services LLC seeking approximately $256,000 in unpaid legal fees, plus costs and interest, for a total of about $440,000.

After Jackson filed an amended answer to the complaint, asserting several defenses, including unclean hands, violations of the Business and Professions Code and California Rules of Professional Conduct, Ayscough & Marar propounded written discovery regarding the defenses and sought to depose Jackson.

Jackson failed to appear for the noticed deposition and then sought a protective order shielding him from the deposition and written discovery.

Chalfant denied Jackson’s request for a protective order, granted the firm’s motions to compel discovery, and awarded monetary sanctions against Jackson and his attorneys.

Ayscough & Marar later filed an ex parte application for an order striking Jackson’s first amended answer, entering a default judgment, or imposing evidentiary or issue sanctions for the singer’s continued failure to appear for deposition or respond to discovery demands.

Jackson’s counsel appeared before Chalfant to oppose the application, which the judge said he would treat as a motion in limine.

Chalfant heard oral argument the next day, then ordered Jackson’s defense asserted in the first amended answer stricken. The parties stipulated to having judgment entered in favor of the firm.

On appeal, Jackson argued that Chalfant had erred in imposing discovery sanctions on the basis of an ex parte application, but Justice Nora M. Manella explained that claim had been forfeited in her opinion for the appellate court.

Although discovery sanctions generally may not be ordered ex parte, Manella explained that Jackson, by appearing at the hearing on the ex parte application and opposing it on the merits, had forfeited his contention regarding defective notice, and impliedly consented to the trial court’s exercise of jurisdiction beyond its authority.

By consenting to the trial court’s excess exercise of jurisdiction, Manella reasoned that Jackson was estopped from challenging that act on appeal.

Manella noted that Jackson did not violate any court order by failing to produce supplemental answers to Ayscough & Marar’s requests for written discovery and that noncompliance with a discovery order is generally a prerequisite for the imposition of terminating sanctions.

But the justice concluded Chalfant was entitled to consider the totality of the circumstances regarding Jackson’s failure to comply with the trial court’s discovery orders, and that the judge’s consideration of related discovery abuses was not an abuse of discretion.

Presiding Justice Norman L. Epstein and Justice Steven C. Suzakawa joined Manella in her opinion.

Brent Ayscough of Ayscough & Marar said that Jackson paid the entire judgment against him in January 2008.

The firm was represented on appeal by Michael McCarthy, Mark Schaeffer, and Janette S. Bodenstein of Nemecek & Cole.

McCarthy said that yesterday’s decision was “as expected,” and stood for the simple proposition that parties should “show up for depositions,” and “respond to discovery.”

Jackson was represented by Thomas C. Mundell of Mundell, Odlum & Haws, who could not be reached for comment.

The case is Ayscough & Marar v. Jackson, B202174.


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