MICHAEL ET LES PROCES

Je ne vais pas revenir sur le procès qui a fait la une mais en voici d'autres (procès de routine, dirons nous...!)


Michael Jackson's Legal Issues - Updates

Syl Johnson vs. Michael Jackson
The parties already exchanged a draft settlement but it is not yet finalized. They will hold a settlement conference on June 22, 2009.

Billie Jean Jackson vs. Michael Jackson
Next hearing for conferenca case review on July 6, 2009.

Helen M. Harris-Scott vs. Michael Jackson
Next hearing for summary judgement on September 1, 2009.

Levitsky Productions Inc. vs. Optimum Productions
Trial setting conference on September 9, 2009.

Ola Ray vs. Michael Jackson
No other court dates appointed since the Judge dismissed Sony from the case on May 12, 2009.

Raymone Bain vs. Michael Jackson
No other court dates appointed since Bain filed for default judgement on June 4, 2009.

AllGood Entertainment Inc. vs. Michael Jackson
No other court dates appointed since the company sued Jackson on June 10, 2009.

Ici il s'agit du proces contre XJET


http://www.leagle.com/unsecure/page.htm?shortname=incaco20100111010

GERAGOS v. BORER

MARK J. GERAGOS and EUGENE PATTERSON HARRIS, Plaintiffs and Respondents,
v.
JEFFREY BORER, Defendant and Appellant.

B208827.

Court of Appeals of California, Second Appellate District, Division Three.

January 11, 2010.

Law Offices of Lloyd Kirschbaum and Lloyd Kirschbaum for Defendant and Appellant.

Geragos & Geragos, Shelley Kaufman, Tina Glandian; Kabateck Brown Kellner, Brian S. Kabateck and Richard L. Kellner for Plaintiffs and Respondents.

Not to be Published in the Official Reports
KITCHING, J.

INTRODUCTION
Defendant and appellant Jeffrey Borer surreptitiously and illegally videotaped the noted entertainer Michael Jackson and his two criminal defense lawyers, plaintiffs and respondents Mark Geragos and E. Pat Harris (plaintiffs), while Jackson and plaintiffs were flying in a chartered airplane. Borer planned to sell the videotape to a media company for a large sum of money. Before he could do so, however, plaintiffs filed suit against Borer and obtained an injunction prohibiting the sale of the videotape. Plaintiffs asserted causes of action for, inter alia, invasion of privacy and use of name and likeness in violation of Civil Code section 3344. After a bench trial, plaintiffs obtained a judgment against Borer for compensatory damages in the cumulative sum of $2.25 million and for punitive damages in the cumulative sum of $9 million.

Borer contends that there was insufficient evidence to support the amount of damages. We agree. The judgment shall be reversed and the matter remanded for a new trial on damages unless plaintiffs agree to a reduced award of compensatory damages in the cumulative amount of $150,000 and a reduced award of punitive damages in the cumulative amount of $600,000, in which event the judgment will be modified to award plaintiffs damages in those amounts, and as so modified shall be affirmed.

BACKGROUND
1. The Videotape
In November 2003, Geragos and Harris of the law firm of Geragos & Geragos, APC, represented Michael Jackson with respect to criminal charges brought by the Santa Barbara District Attorney. The Jackson case was a matter of intense international media coverage. In light of safety concerns, the Santa Barbara Sheriff's Department and Geragos negotiated a date, time, and place for Jackson's arrest. Geragos and Jackson's assistant arranged to charter an airplane from defendant XtraJet, Inc. (XtraJet) to fly Jackson, Geragos, Harris and Jackson's assistant from Las Vegas, Nevada to Santa Barbara County so that Jackson could be arrested.[ 1 ] Geragos decided to charter a private airplane because he wanted a confidential setting in which he could communicate with Jackson.

On or about November 19, 2003, Borer, the owner of XtraJet, instructed Arvel Jett Reeves to install audio-video recording equipment on the airplane chartered by Jackson. Shortly afterwards, Reeves purchased two mini-camcorders, extension microphones, and remote lenses for the camcorders. Borer and Reeves intended to create audio and video recordings of Jackson and his attorneys, and then sell these recordings to the media for a large sum of money.

Reeves and another unidentified individual worked into the early morning hours of November 20, 2003, installing the camcorders on the airplane.[ 2 ] Reeves was unable to install remote microphones because he failed to purchase the proper connections.[ 3 ]

On November 21, 2003, Jackson, Geragos, Harris, and Jackson's assistant flew on an XtraJet airplane from Las Vegas to Santa Barbara County as planned. During that flight the passengers were secretly videotaped.

2. Defendants Were Enjoined From Selling the Videotape
The videotape first came to the attention of Geragos and Harris when Geragos received a call from Greta Van Susteren of Fox News regarding the matter. Geragos then called Lloyd Kirschbaum, Borer's and XtraJet's lawyer, and demanded that Kirschbaum turn over the videotape. Kirschbaum, however, denied that request. Instead, he advised Geragos something to the effect that his clients were going to "hit the lottery" or that it was their "pay day." Kirshbaum further stated that the videotape was worth "more than a million" or "millions" of dollars. Kirshbaum also told Geragos that he could place a "bid" on the videotape.

The existence of the videotape and speculation about its contents became a matter of public discussion on cable news programs and elsewhere. Geragos received approximately 50-100 calls from reporters regarding the videotape.

On November 25, 2003, Geragos and Harris commenced this action and sought a temporary restraining order (TRO) to enjoin the dissemination of the videotape. The court granted the TRO. At the TRO hearing, Kirshbaum argued on behalf of Borer that the plaintiffs should be required to post an undertaking. Kirshbaum claimed that assuming the videotape could be sold, "it may have an extremely high value." He further advised the court that media companies were willing to pay between $10,000 and $15,000 merely to take pictures of the empty airplane where the videotape was recorded, and upwards of $20,000 to $30,000 for an interview regarding the videotape. The court required plaintiffs to post a $20,000 bond.

3. Plaintiffs' First Amended Complaint
Plaintiffs' operative pleading is the first amended complaint. The named plaintiffs are Jackson, Geragos, Harris, and Geragos & Geragos, APC. The named defendants are Borer, XtraJet, Pavair, Inc., a company affiliated with Borer, Cynthia Montgomery, a travel agent allegedly involved in the scheme to videotape Jackson and his lawyers, and Travel 21, Inc., a company affiliated with Montgomery. The first amended complaint sets forth causes of action for (1) invasion of privacy, (2) public disclosure of private facts, (3) common law misappropriation of name and likeness, (4) use of name and likeness in violation of Civil Code section 3344, (5) violation of the constitutional right of privacy, (6) recording of confidential information (Penal Code §§ 632, 637.2), (7) unfair business practices (Bus. & Prof. Code, § 17200 et seq.), and ( negligence.

4. Borer's Conviction of a Federal Crime
Borer's participation in the plan to videotape Jackson and his lawyers resulted in criminal charges against him in federal court. On March 6, 2006, in the United States District Court for the Central District of California, Borer pleaded guilty to one count of conspiracy to intercept an oral communication in violation of 18 U.S.C. § 2511(1)(b)(iv) and 18 U.S.C. § 371. Judge A. Howard Matz accepted Borer's plea and found Borer guilty of the charge.

5. The Trial, Judgment and Motion for New Trial
The superior court conducted a bench trial. Geragos and Harris were the only percipient witnesses called by plaintiffs. Professor Stanley Goldman also testified as an expert witness regarding media issues. In addition, plaintiffs played the videotaped deposition of Reeves and submitted the plea agreements of Borer and Reeves. Borer did not call any witnesses or present any evidence.

An important issue at trial was the value of the videotape. Geragos testified about his conversation with Kirshbaum and Kirshbaum's statement that the videotape was worth "more than a million or millions." He also testified that he received a call from reporter Greta Van Sustern "telling [Geragos] that somebody at Fox [News] had relayed to her that somebody was shopping [the videotape] around for $1 million or $2 million." Borer objected to this testimony as hearsay but the trial court overruled the objection.

Professor Goldman testified that Ms. Van Susteren "claimed to have direct sources that told her that it [the videotape] was being offered for $1 million."[ 4 ] The court overruled Borer's hearsay objection to this testimony. Professor Goldman further testified that the videotape of Jackson, Geragos and Harris would be much more valuable if it had an audio component, though he could not quantify the value of the tape with or without an audio component. There was no evidence presented at trial that the videotape was actually sold or that defendants made any profit on the videotape.

There was also no evidence regarding the content of the videotape. The trial court admonished the parties and the witnesses against discussing the content of the videotape in open court in order to protect Michael Jackson's attorney-client privilege. For the same reason, the trial court declined to accept Borer's request to review the videotape in camera.

The trial court entered judgment in favor of plaintiffs on all eight causes of action. Defendants XtraJet, Borer and Montgomery were ordered to destroy the original and all copies of the videotape, and were permanently enjoined from the sale or further dissemination of the videotape.

The trial court awarded Geragos $2 million in compensatory damages against XtraJet, Borer and Montgomery, $8 million in punitive damages against Borer, and $8 million in punitive damages against XtraJet. The court awarded Harris $250,000 in compensatory damages against XtraJet, Borer, and Montgomery, $1 million in punitive damages against Borer, and $1 million in punitive damages against XtraJet.[ 5 ]

The trial court did not separately award compensatory or punitive damages in connection with particular causes of action. In its discussion of compensatory damages, the court noted that "the evidence submitted established that the recording was worth upwards of two million dollars ($2,000,000.00) and was being shopped around for more than that amount."

After the judgment was entered Borer moved for a new trial, which the trial court denied. This appeal followed.

CONTENTIONS
Borer's principal argument is that there was insufficient evidence to support the trial court's awards of compensatory and punitive damages. He contends that plaintiffs were only entitled to nominal compensatory damages and no punitive damages. He also contends that the award of punitive damages violates his due process rights under the Fourteenth Amendment to the United States Constitution.

Borer further contends that the trial court made a series of errors that resulted in excessive damages. Specifically, he contends that the trial court erred by refusing to view the videotape in camera, by admitting hearsay statements about the value of the videotape, by finding that there was an audio component to the videotape, and by failing to differentiate between the high commercial value of Jackson's image and the limited commercial value of Geragos's and Harris's images.

In addition, Borer argues that there was no substantial evidence supporting the trial court's ruling on liability with respect to plaintiffs' third cause of action for common law misappropriation of name and likeness and fourth cause of action for use of name and likeness in violation of Civil Code section 3344.

Finally, Borer argues that the trial court's denial of his motion for a new trial was error because the compensatory and punitive damages awarded were not supported by substantial evidence. "An order denying a motion for new trial is nonappealable. [Citation.] Such an order, however, may be reviewed on appeal from the underlying judgment." (Walker v. Los Angeles County Metropolitan Transporation Authority (2005) 35 Cal.4th 15, 18.)

DISCUSSION
1. Standards of Review
Most of Borer's arguments relate to alleged errors in the trial court's factual findings. We review a trial court's factual findings under the substantial evidence standard of review. (Spencer v. Marshall (2008) 168 Cal.App.4th 783, 792.) "`"When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court."'" (Id. at pp. 792-793.)

Where, as here, an appellant is challenging a trier of fact's determination of damages, our review is severely circumscribed. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361. "`An appellate court may interfere with that determination only where the sum awarded is so disproportionate to the evidence as to suggest that the verdict was the result of passion, prejudice or corruption [citations] or where the award is so out of proportion to the evidence that it shocks the conscience of the appellate court." (Ibid.) Further, "the trial court's judgment is presumptively correct, such that error must be affirmatively demonstrated, and where the record is silent the reviewing court will indulge all reasonable inferences in support of the judgment." (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557 (Yield).)

We review Borer's challenge to the sufficiency of the evidence supporting the trial court's punitive damages award under the substantial evidence standard. (County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 545.) Borer's constitutional challenge to the punitive damages award is subject to de novo review. (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1172.)

Even assuming we find that the trial court erred, we cannot reverse the judgment unless it appears "`reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citations.] This means the appellant must show not only that error occurred but that it is likely to have affected the outcome." (Yield, supra, 154 Cal.App.4th at p. 557.)

2. There Was No Substantial Evidence Supporting the Judgment With Respect to Plaintiffs' Causes of Action for Common Law Misappropriation of Name or Likeness and Use of Name and Likeness in Violation of Civil Code Section 3344
"In California the right of publicity is both a common law right and a statutory right. [Citation.] The common law right of publicity has been recognized in this state since 1931. [Citations.] In 1971, the Legislature enacted [Civil Code] section 3344, which authorized recovery of damages by any living person whose name, photograph, or likeness was used for commercial purposes without his or her consent." (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 408.) Plaintiffs have asserted both rights here.

Plaintiffs' third cause of action is for misappropriation of name and likeness. The elements of this tort, at common law, are: "(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. [Citations.]" (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 417 (Eastwood), italics added.)

Plaintiff's fourth cause of action is for use of name and likeness in violation of Civil Code section 3344. Civil Code section 3344, subdivision (a) provides, in part: "Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof."[ 6 ] (Italics added.)

Relying mainly on Eastwood and Solano v. Playgirl, Inc. (9th Cir. 2002) 292 F.3d 1078 (Solano), plaintiffs argue that defendants tortuously "used" their names and likeness. In Eastwood, the defendant publisher made a "telecast advertisement" in which it featured the plaintiff's name and photograph and mentioned prominently an article regarding the plaintiff in the defendant's newspaper. (Eastwood, supra, 149 Cal.App.3d at p. 415.) The defendant thus clearly used the plaintiff's name and photograph to sell newspapers.

Similarly, in Solano, the defendant published a photograph of the plaintiff and the plaintiff's name on the cover of its magazine without the plaintiff's consent. There was evidence that the defendant used the plaintiff's name and likeness in a knowingly false manner in order to promote the magazine's sales. (Solano, supra, 292 F.3d at pp. 1086, 1089.)

The present case is distinguishable from Eastwood and Solano. Plaintiffs base their common law and statutory causes of action on defendants' alleged use of their likeness as depicted in the videotape.[ 7 ] There was no evidence, however, that Borer used the videotape or plaintiffs' likeness for commercial purposes, i.e., on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services. Defendants did not sell the videotape or make profits from the videotape or use it to their advantage in any manner. Accordingly, there was insufficient evidence supporting plaintiffs' third and fourth causes of action, and the trial court's ruling in plaintiffs' favor on those causes of action was error.

3. Plaintiffs' Compensatory Damages Were Excessive as a Matter of Law
Our determination that the trial court erred with respect to plaintiffs' third and fourth causes of action is not, by itself, reason to reverse the judgment. An appellant has the burden to show not only that the trial court erred but also that the error is prejudicial. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) An error is not prejudicial if independent grounds unaffected by the error support the judgment. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19; Estate of Beard (1999) 71 Cal.App.4th 753, 776-777.) Accordingly, if we find substantial evidence to support the judgment based on plaintiffs' remaining six causes of action, we must affirm. (Leoni v. Delany (1948) 83 Cal.App.2d 303, 309; Berger v. Southern Pac. Co. (1956) 144 Cal.App.2d 1, 6; Bresnahan v. Chrysler Corp. (1998) 65 Cal.App.4th 1149, 1153-1154.)

Plaintiffs were entitled to recover tort damages they sustained in connection with five of their remaining six causes of action.[ 8 ] Except as expressly provided by the Civil Code, the measure of tort damages "is the amount which will compensate for all the detriment proximately caused [by the tortious conduct], whether it could have been anticipated or not." (Civ. Code, § 3333). In cases involving an invasion of privacy, this amount includes out-of-pocket loss and the "`impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.'" (Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 137; accord Fairfield v. American Photocopy etc. Co. (1955) 138 Cal.App.2d 82, 88-90.)[ 9 ]

Borer argues that plaintiffs only submitted evidence of nominal damages. We reject that argument. Geragos presented his own testimony to prove his damages. He testified as follows. The incident was "embarrassing," "extremely upsetting" and "enormously offensive" to Geragos. Geragos did not, however, receive any treatment or counseling for his injuries.

The incident also affected Geragos's law practice. Part of Geragos's practice involved representing high profile people. Indeed, after November 2003, Geragos always had at least one client who was subject to media attention. Accordingly, in response to Borer's misconduct, Geragos went to "almost paranoid lengths" to safeguard his communications with his clients. He met clients in hotel rooms, hotel conference rooms, under freeways and under bridges. He hired a private investigator to work full-time for his firm. One of the reasons he relocated his office was so that he could maintain better security.

Harris too testified regarding plaintiffs' damages. He testified as follows. The incident was "very embarrassing" and made Harris and Geragos "look less than professional." Harris "felt like it [the videotape] damaged [plaintiffs'] reputation a great deal." Further, the incident created an "air of paranoia" within plaintiffs' law firm. Harris often conducted face-to-face meetings with clients because he was afraid of being taped. On one occasion, Harris flew to "Moldovia" [sic] to meet an attorney in order to engage in a secure conversation. Finally, Harris was upset about the incident because it offended his sense of ethics.

This testimony constitutes substantial evidence that both Geragos and Harris sustained damages beyond a nominal amount. Plaintiffs had good reason to be very upset about Borer's outrageous and illegal conduct. However, for reasons we shall explain, the amount of compensatory damages awarded went far beyond any reasonable amount in light of the evidence presented. The amount awarded to the plaintiffs was so great that it shocks the conscience.

The most serious gap in plaintiffs' evidence is that there was virtually no evidence that anyone actually viewed the videotape. Plaintiffs' expert, Stanley Goldman, testified that he saw a "small excerpt" of the videotape as part of his work at Fox News. There was also evidence that Borer solicited bids for the videotape from the media. Thus, if the evidence is viewed in a light most favorable to plaintiffs, plaintiffs proved at most that a handful of people within the media viewed the videotape but the videotape was never seen by the public at large.[ 10 ] Further, because the videotape did not contain an audio component and because there was no evidence about the content of the videotape, there was no evidence that any third party ascertained any statements made by Geragos, Harris and Jackson to each other during their flight from Las Vegas to Santa Barbara.[ 11 ]

In addition, Harris's conclusionary statement that he "felt" the videotape damaged plaintiffs' reputation was not supported by any other evidence. Plaintiffs did not present any evidence that they lost a single client as a result of the videotape or that any clients or potential clients expressed concern about plaintiffs' professionalism. There was also no evidence anyone perceived that plaintiffs acted in a less than competent and professional manner in connection with the recording of the videotape. Indeed, it is difficult to find fault with plaintiffs' conduct because plaintiffs were the victims of a crime and had no reason to believe that they could not speak in confidence with their client in a privately chartered airplane. Accordingly, there was no objective reason to conclude that plaintiffs' reputation was greatly harmed by the unlawful recording of a silent videotape that almost no one saw.

With respect to plaintiffs' increased security measures in the wake of the videotape, we find that, as a matter of law, Borer's tortious conduct was not the proximate cause of alleged damages arising from some of the more extreme actions taken by plaintiffs. For example, there is at most a tenuous connection between the recording of the videotape and plaintiffs' decision to have Harris fly overseas to meet an attorney. Although Borer's conduct was reprehensible, Borer was not liable for the costs of any and all security measures plaintiffs took after the incident regardless of whether such measures were reasonable and necessary.

Moreover, plaintiffs did not present any evidence of the amount of the costs of their increased security measures. The record does not even indicate whether the costs of additional security measures were incurred by the law firm Geragos & Geragos, APC or by Geragos and Harris individually. Accordingly, there was no evidence that such costs constitute out-of-pocket expenses Geragos and Harris can recover.

Plaintiffs' reliance on Sommer v. Gabor (1995) 40 Cal.App.4th 1455 (Sommer) is misplaced. There, one of the defendants, Zsa Zsa Gabor, was quoted in an article published in a German magazine with a circulation of 1.3 million as stating that the plaintiff, actress Elke Sommer, "is broke, had to sell her house in Hollywood, now lives in the worst section, hangs out in sleazy bars, lives from selling her handknit sweaters for $150, and nobody wants to have anything to do with her anymore." (Id. at p. 1461.) The other defendant, Frederic Von Anhalt, was quoted in that same article as stating that Sommer "`was completely ruined'" and "`hardly had any hair on her head.'" (Ibid.) Von Anhalt also was quoted in a German newspaper with a circulation of 3.9 million as stating that Sommer "could not buy a $500 ticket for a charity benefit, Sommer's bills were not being paid, in Hollywood no one recognizes her on the street anymore, Sommer was lying about her age in that she was not 48 but 62, and that Sommer looks like a 100-year-old grandmother." (Id. at p. 1462.)

After the publication of the articles, Sommer received about 200 fan letters, some offering to help her. (Sommer, supra, 40 Cal.App.4th at p. 1463.) As a result of the articles, Sommer "suffered sleeplessness, headaches, and was sick to her stomach; she saw a psychiatrist twice." (Id. at p. 1462.)

Claiming that the defendants' statements about her were false, Sommer sued the defendants for defamation. At the trial, Sommer's publicist testified that Sommer was "`an actress who has always had a highly sexual identification. She's certainly a glamour star, and one tends to be regarded less glamorously as you get older.'" (Sommer, supra, 40 Cal.App.4th at p. 1463.) Sommer's publicist also testified that the articles damaged Sommer's reputation as an actress and were "`terminal to her career.'" (Id. at p. 1471.)

The jury awarded Sommer $800,000 in compensatory damages and $450,000 in punitive damages against Gabor and $1.2 million in compensatory damages and $850,000 of punitive damages against Von Anhalt. The Court of Appeal affirmed the judgment, holding that the amount of damages awarded was not excessive. (Sommer, supra, 40 Cal.App.4th at pp. 1463-1464.)

The present case is distinguishable from Sommer. The defamatory statements in Sommer were published in periodicals that were distributed to millions of people. Here, by contrast, almost no one viewed the silent videotape of plaintiffs and Michael Jackson.

Moreover, in light of the nature of the defamatory statements, their relevance to Sommer's career as an actress, the publicist's opinion, the widespread circulation of the articles, and Sommer's fan letters, a finding that Sommer's professional reputation was greatly harmed was supported by substantial evidence. Here, as we have explained, the only evidence that plaintiffs' reputation was harmed was Harris's conclusionary statement that he "felt" that plaintiffs' reputation was "greatly damaged" as a result of the recording of the silent videotape that was not seen by the public.

Finally, Sommer suffered physical symptoms associated with her mental suffering and received psychiatric treatment. Conversely, there was no evidence in this case that Geragos and Harris sustained physical injuries or similarly severe psychic injuries. For all of these reasons, Sommer does not support the award of damages in this case.

We conclude that plaintiffs' compensatory damages were excessive as a matter of law. Having reached that conclusion, this court may "(1) remand for a new trial on all issues [citation] or on the issue of damages alone [citation], or (2) issue a remittitur conditioning affirmance of the judgment on plaintiff's agreement to remit part of the award [citations.]" (Cunningham v. Simpson (1969) 1 Cal.3d 301, 310.) We shall give plaintiffs Geragos and Harris a choice of whether to pursue a new trial on damages or whether to accept reduced compensatory damages in the amount of $100,000 for Geragos and $50,000 for Harris. As we shall explain below, plaintiff may only elect the second option if they also elect to reduce their punitive damages award.

4. Plaintiffs' Punitive Damages Award Violates the Due Process Clause
"The due process clause of the Fourteenth Amendment prohibits grossly excessive or arbitrary punishment of a tortfeasor and therefore limits the amount of punitive damages that a state court can award." (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 689 (Bullock). We consider three guideposts in determining whether punitive damages pass constitutional muster: "(1) the degree of reprehensibility of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury" and comparable civil penalties where available. (State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, 418 (State Farm); accord Johnson v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1201.)

Applying the three due process guideposts, we reject Borer's argument that no punitive damages can be awarded. However, we also hold that the punitive damages award was excessive as a matter of law because it violates Borer's due process rights.[ 12 ]

A. The Degree of Reprehensibility
The most important indicator of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct. (State Farm, supra, 538 U.S. at p. 419.) "Courts utilize five factors to help determine the degree of reprehensibility of a defendant's conduct: (1) whether the harm was physical and not merely economic; (2) whether the conduct demonstrated an indifference or reckless disregard for the health or safety of others; (3) whether the target of the conduct was financially vulnerable; (4) whether the conduct was repeated or an isolated incident; and (5) whether the conduct was the result of intentional acts or mere accident." (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1223, citing State Farm, at p. 419.)

"The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect. It would be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant's culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence. [Citation.]" (State Farm, supra, 538 U.S. at p. 419.)

In this case, Borer's misconduct was sufficiently reprehensible to warrant punitive damages. There was abundant evidence that Borer acted with malice, that is, he engaged in despicable conduct with a willful and conscious disregard of the rights of others. (Civ. Code, § 3294, subd. (c)(1).) The right violated here was the right of plaintiffs to engage in confidential communications without a third party unlawfully recording such communications. (See Pen. Code, § 630.)

What makes matters worse is that Borer tried to record the confidential communications between criminal defense lawyers and their client.[ 13 ] "`While it is perhaps somewhat of a hyperbole to refer to the attorney-client privilege as "sacred," it is clearly one which our judicial system has carefully safeguarded with only a few specific exceptions.'" (Solin v. O'Melveny & Myers (2001) 89 Cal.App.4th 451, 457, fn. omitted.)

Borer not only sought to violate the attorney-client privilege, he did so in order to make a profit. Professor Goldman testified that "as soon as it becomes profitable to start to invade the attorney-client privilege, then much more of that will happen. It would find a market." It therefore was appropriate for the trial court to award exemplary damages to deter Borer and others from violating the attorney-client privilege for the purpose of making a profit.

Most of the reprehensibility factors, however, weigh against a high punitive damages award. Borer's conduct did not endanger the health or safety of others and did not cause any physical harm, though plaintiffs were embarrassed and upset. The target of Borer's conduct—Michael Jackson and his lawyers— were not financially vulnerable. Rather, Jackson was sufficiently wealthy to charter a private airplane and his lawyers were sophisticated and presumably well-compensated professionals. Further, there was no evidence of repeated misconduct by Borer; this appears to be an isolated incident. Under the totality of the circumstances, the reprehensibility of Borer's conduct was not particularly egregious compared to other conduct that justifies punitive damages.

B. The Ratio of Punitive Damages to Harm
Although the United States Supreme Court has rejected the use of "a simple mathematical formula" (BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 582), the high court has held that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." (State Farm, supra, 538 U.S. at p. 425.) "The court also explained that past decisions and statutory penalties approving ratios of 3 or 4 to 1 were `instructive' as to the due process norm, and that while relatively high ratios could be justified when `"a particularly egregious act has resulted in only a small amount of economic damages" [citation] . . . [t]he converse is also true . . . . When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.'" (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1182, citing State Farm, at p. 425.)

In present case, as we have explained, the evidence adduced at trial cannot support compensatory damages greater than $100,000 for Geragos and $50,000 for Harris. In light of the reprehensibility of Borer's conduct, punitive damages greater than a four-to-one ratio cannot be justified. Because the punitive damages awarded Geragos and Harris exceeds that ratio, Borer's due process rights were violated.

C. Civil Penalties for Comparable Conduct
The parties have not referred us to any civil penalties for comparable conduct. We thus do not consider this guidepost in our due process analysis.

5. Borer's Remaining Arguments
Borer argues that there was no evidence supporting the trial court's finding that there was an audio component to the videotape. He further argues that the trial court erred in refusing to view the videotape in camera because such a review would have shown that there was no audio component. We have, however, assumed in our analysis that there was no sound on the videotape. Thus the trial court's erroneous finding that there was an audio recording did not result in a miscarriage of justice and does not, by itself, require a reversal of the judgment.

Borer argues that the trial court abused its discretion by overruling his hearsay objections to evidence regarding the value of the videotape. He further argues that the trial court overvalued the videotape because it failed to differentiate between the high commercial value of Michael Jackson's image and the limited commercial value of Geragos's and Harris's images. Both of these arguments relate to plaintiffs' common law and statutory causes of action for use of name and likeness. We need not address these arguments because we have ruled in Borer's favor with respect to those causes of action on different grounds.

DISPOSITION
The judgment is reversed and the matter is remanded for a new trial on damages arising from plaintiffs' first, second, fifth, sixth and eighth causes of action. However, if Geragos shall, within 30 days from the date of our remittitur, file pursuant to California Rules of Court, rule 8.264(d) a written consent to a reduction of the compensatory damages award against Borer to $100,000, and a reduction of the punitive damages award against Borer to $400,000, the judgment will be modified to award Geragos damages in those amounts, and as so modified will be affirmed in its entirety with respect to Geragos. (Rosener v. Sears Roebuck & Co. (1980) 110 Cal.App.3d 740, 757.) Likewise, if Harris shall, within 30 days from the date of our remittitur, file pursuant to California Rules of Court, rule 8.264(d) a written consent to a reduction of the compensatory damages award against Borer to $50,000, and a reduction of the punitive damages award against Borer to $200,000, the judgment will be modified to award Harris damages in those amounts, and as so modified will be affirmed in its entirety with respect to Harris. (Ibid.) The decisions of Geragos and Harris shall be independent and shall not be binding on the other plaintiff with respect to accepting a reduced award of compensatory and punitive damages or, alternatively, pursuing a new trial on damages. The parties shall bear their own costs on appeal.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

MICHAEL Vs PARAMOUNT

CECI CONCERNE LES ALLEGATIONS DE DIANE DIMOND


http://www.leagle.com/unsecure/page.htm?shortname=mj05


JACKSON v. PARAMOUNT PICTURES CORP.

80 Cal.Rptr.2d 1 (1998)

68 Cal.App.4th 10

Michael JACKSON, Plaintiff and Appellant,
v.
PARAMOUNT PICTURES CORPORATION et al., Defendants and Respondents.

No. B114354.

Court of Appeal, Second District, Division Four.

October 28, 1998.

Rehearing Denied November 20, 1998.



[ 80 Cal.Rptr.2d 1, 2 ]

Katten, Muchin & Zavis, Zia F. Modabber and Steve Cochran, Los Angeles, for Plaintiff and Appellant.

Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, Patricia L. Glaser and Ronald E. Guttman, Los Angeles, for Defendants and Respondents.

CURRY, Associate Justice.

Appellant Michael Jackson brought suit against respondents Paramount Pictures Corporation, Diane Dimond, and Stephen Doran alleging that he had been slandered by reports broadcast on the television program "Hard Copy"[ 1 ] and in a radio interview with Dimond. During these broadcasts, the search for and purported existence of a videotape showing appellant inappropriately touching an underage boy in a sexual manner were discussed. The trial court granted summary judgment to respondents based on the truth of the statements made in the broadcasts and the lack of evidence of malice. After review of the record and the evidence in support of and in opposition to the summary judgment motion, we affirm the trial court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND
The KABC-AM Radio Broadcast
Two over-the-air reports dealt with the alleged videotape. The first occurred on January 9, 1995, on the "The Ken and Barkley Show" broadcast by KABC-AM radio.[ 2 ] Respondent Diane Dimond appeared as a guest on the program. To keep the statements made in their proper context, we repeat the entire text of the interview as it related to appellant rather than rely on excerpts:[ 3 ]



[ 80 Cal.Rptr.2d 1, 3 ]

Q: "You are going to give us the first scoop on Michael Jackson of 1995."

Dimond: "You know, ... just when you think the story is going away, it's not. It ... the investigation is red hot again and here is the deal. The District Attorneys' Office, the top investigators within the District Attorneys' Office are looking for a 27 minute video tape that they believe shows Michael Jackson and a young boy."

Q: "This is a recent video, or something[.]"

Dimond: "Yes.... It was taken right before Christmas as the story goes and it was recorded by one of Michael Jackson's own security cameras. He likes, everybody knows that he likes to bug rooms and put cameras up and the whole 9 yards[.]"

Q: "How do they know about this?"

Dimond: "Well, it's kind of a convoluted story but the bottom line as I understand it is: someone close to ... Michael Jackson knew of the existence of this tape. It is an x-rated tape, I must tell you and [—]"

Q: "It is an x-rated tape?"

Dimond: "It is ... yes."

Q: "Of Michael Jackson[?]"

Dimond: "Truly explicit."

Q: "It's what? Michael Jackson and little boy. Are you 100% sure that this tape exists?"

Dimond: "I am as sure as I can possibly be."

Q: "You have not seen it?"

Dimond: "I have not seen it but one of my best sources on the Michael Jackson story has seen it."

Q: "Who ... you have no doubts about."

Dimond: "I have never had a doubt about this person, ever. I know the District Attorneys' Office is looking for it because they are calling up reporters saying `Have you seen it.' ... Do you know where we can get it?"

Q: "Who had it and was showing it? His security people?"

Dimond: "Well, someone close to Michael Jackson found this tape and, in deep concern for the boy involved, gave it to the boy's mother."

Q: "Uh oh. Should Michael not know that one of his own security cameras was recording what he was doing?"

Dimond: "Oh no, he knew. He absolutely knew."

Q: "He is asking for trouble. Inaudible."

Dimond: "You know, I remember way back when, more than a year ago, we interviewed the head of the pedo[ph]ile unit at the FBI in Quantico, Virginia and he said you know the down fall of pedo[ph]iles is that they love to keep a momento of their victims. Or, they love to take pictures or take videos. We don't know why, but they do this. It is for their own self gratification later but it always comes back to bite them."

Q: "... It looks to me. I think old Mike had better get his checkbook out again.... That's the way this is going to end up."

Dimond: "I got to tell you, Ken, is what the DA's office is worried about. There is like a mad scramble to get to this tape before the Jackson camp gets to this tape."

Q: "Here is what happened.... If that tape ... does exist as you say."

Dimond: "Right."

Q: "Somebody close to Michael Jackson got a hold of it and thought holy, baloney this is worth a lot of money. Look, I'll split it 50/50 with you and we can get maybe $50 million."

Dimond: "That could very well be."

Q: "And he gave it to the mother of the boy?"

Dimond: "Correct."

Q: "So she has it."

Dimond: "And, I have to tell you, if my source is correct, who has seen this tape, and again, he always has been. The acts that are being performed on that tape are exactly what the accuser a year ago said Michael Jackson did to him."



[ 80 Cal.Rptr.2d 1, 4 ]

Q: "Well, I mean you don't need to beat around the bush. What are those acts?"

Dimond: "We are talking about oral sex."

Q: "Um, hmm. Performed on Michael Jackson or by Michael Jackson?"

Dimond: "By Michael Jackson.... So,... You know, it is going to unfold this week. I am trying to confirm right now, we understand that there might ... have been copies made of this tape."

Q: "I bet there was."

Dimond: "And you know, if ... the Jackson camp gets it, or if it is somehow hushed up or bought off or whatever. I understand there might be a copy of it."

Q: "Now, wait a minute. After all that happened during 1994 with Michael Jackson. What was a parent letting their kid do with Michael Jackson in his house."

Dimond: "Bingo."

Q: "Is this up in Santa Barbara?"

Dimond: "No, it was here in Los Angeles."

Q: "In LA, so it's our own District Attorney."

Dimond: "And, I got to tell you, I know, I know many of the investigators within the District Attorneys' Office. They got the top guys on this. They are not beating around the bush. I got to tell you too, this mother, when she got this tape, made an initial contact to the LAPD Sexual Exploitation Unit and they told her unbelievably. Well, okay, you say you have the tape, just take it to any local precinct and turn it in. And she said to herself. This is not the kind of protection I need, thank you very much, forget it."

Q: "Well, ... so why didn't she?"

Dimond: "Because she is afraid. This is a very powerful man you are talking about. This is a man who has a lot of money to spread around, who can make your life very miserable. He can make [—]"

Q: "Well, but if you got [—]"

Dimond: "He can make it wonderful and very miserable."

Q: "It looks to me that if you got him on tape doing it, he is going to have a pretty hard time."

Dimond: "One of the DA's investigators was quoted as saying, `if we get this tape and... if it shows what we think it shows, we put the handcuffs on Michael Jackson.'"

Q: "Well, Diane. You have to keep us informed on this. I know that Hard Copy will have it on tonight."

Dimond: "And, listen, if anybody calls you with this tape, let me know."

Q: "I will let you know."

Dimond: "I will let you know."

Later on in the broadcast, they briefly returned to the story:

Q: "Going back to the Michael Jackson video."

Dimond: "Yeah."

Q: "How did you[r] friend see it? Who showed it to your friend[?]"

Dimond: "Oh, I just can't tell you that. That would go [—]"

Q: "The mother?"

Dimond: [inaudible]

Q: "Well, it had to be either the mother of the boy or [inaudible]."

Q: "Or the security person who gave the tape."

Dimond: "You guys always have the most insightful questions. I think I better hang up right now."

That concluded "The Ken and Barkley Show" interview.

The "Hard Copy" Broadcast
Later that evening, "Hard Copy" broadcast the following report related to appellant, which again we repeat verbatim:[ 4 ]



[ 80 Cal.Rptr.2d 1, 5 ]

First voice [apparently Kevin Smith]: "[Unintelligible] ... then Michael Jackson will be in handcuffs."

Second voice: "Reports that Michael and a teenage boy have been caught on tape."

Third Voice [apparently Gutierrez]: "[Unintelligible]... the tape, there is no doubt about it. It is very graphic."

Second voice: "Now, investigators are racing to find Michael's X-rated video."

Barry Nolan: "New trouble for Michael Jackson tonight. This time police investigators are searching for what they believe is an incriminating x-rated video. Diane Diamond [sic] reports."

Dimond: "If Michael Jackson thought the new year would bring him a new lease on life Barry, it just isn't happening that way. Hard Copy has learned that there is now a renewed police investigation into the entertainer's relationship with young boys. This time, authorities are hot on the trail of an explicit video tape they believe could make their case, [¶] Michael Jackson's videos have been seen around the world. But it is not his music videos authorities are interested in. Nope. Hard Copy can now reveal that investigators from the L.A. District Attorneys office have been working around the clock lately trying to find an x-rated video of the pop superstar which they believe shows him naked and fondling a young boy."

Gutierrez: "When you [Unintelligible] ... the tape, there is no doubt about it. It is very graphic."

Kevin Smith: "If the D.A. gets a hold of the tape and it shows what it's supposed to show, then Michael Jackson will be in handcuffs."

Dimond: "The investigators are working for this woman. Assistant D.A. Lauren Weiss. She was once a key player in the Jackson child molestation investigation. Last year, police helped question witnesses brought before a secret grand jury. Now she has her investigators scrambling to find that video tape. Journalist Kevin Smith was questioned by the D.A.'s office."

Smith: "They are scared. Yes, this is yet another lead which is gonna be snapped up. And disappear mysteriously before they get their hands on it. What they are concerned of is it goes back into the Jackson camp and it will never be seen again."

Dimond: "It is impossible to independently confirm the existence of the video but several sources including some as far away as London say that this tape is black and white, 27 minutes long, and reportedly recorded by one of Jackson's own security cameras. Sources also tell Hard Copy the tape was somehow turned over to the Mother of the young boy seen on the video."

Smith: "The investigator I spoke to said this is what they've been waiting for. If they had the tape, that's all they needed to make an arrest."

Dimond: "Victor Gutierrez has reported on Michael Jackson for the last decade and has a book about to be published regarding the entertainer's relationship with various boys. Gutierrez has talked with this young boy's mother."

Gutierrez: "And now she is scared. And now, not only that, the District Attorney is trying to get these tapes and I guess through my sources[, t]hey already been in contact with the Mother. So, it's up to the Mother now to make the final decision."

Smith: "Even if the original copy damages or is destroyed or is hushed up, there has been a copy made and that is what the D.A. is going after."

Dimond: "Could there actually be such an x-rated tape. Well, late today, Jackson's lawyer, Howard Weitzman categorically denied the existence of such a video and he says to his knowledge neither the D.A. in Los

[ 80 Cal.Rptr.2d 1, 6 ]

Angeles or Santa Barbara has reactivated the case. We will have more on this developing story tomorrow. Barry?"

Barry Nolan: "Thanks Diane...."

The Complaint
Appellant brought suit against Diane Dimond, Stephen Doran, KABC-AM Radio, Inc., Paramount Pictures Corporation, Roger Barkley, Ken Minyard, and Victor Gutierrez for slander. The first cause of action alleged that on the morning of January 9, 1995, Dimond appeared as a guest on "The Ken and Barkley Show" broadcast by KABC and falsely stated that there was a "renewed" and "`red hot'" police investigation in Los Angeles County into new allegations of child molestation by appellant. As set forth in the complaint, "... Dimond stated that her most reliable source had seen a 27-minute black-and-white videotape of [appellant] molesting a young boy recorded by his security cameras. Dimond reported that the tape was `x-rated' that she believed her source, and that she was `as sure as [she could] possibly be' that the tape existed. Dimond further stated that `the top investigators within the District Attorney's office' are looking for the tape, which she stated was taken just before Christmas 1994, and that the tape had a date and time electronically imprinted on it."

The second cause of action alleged that "on January 9, 1995, Hard Copy, aired a piece in which Dimond stated that there was a `renewed police investigation into [appellant's] relationship with young boys.' Dimond further stated that investigators from the L.A. District Attorney's office were working `around the clock' looking for an `x-rated video' of [appellant] allegedly showing him `naked and fondling a young boy.'"

The Motion for Summary Judgment
Respondents Paramount Pictures, Dimond, and Doran moved for summary judgment. As to both the first and second causes of action, respondents asserted that they had not made any false statements of fact and had not acted with actual malice.

To demonstrate truth, respondents set forth the following facts, established in part through the declarations of Jack S. Gonterman, an investigator employed by the Los Angeles County District Attorney's Office, and Thomas Sneddon, the District Attorney of Santa Barbara County. In December of 1994, the Santa Barbara County District Attorney's Office received information (1) that a videotape existed depicting appellant engaged in sexual contact with a minor, and (2) that Gutierrez, a freelance journalist who reports on appellant's activities, had seen such videotape. Gonterman had been assigned to the investigation of allegations that appellant sexually molested minor children, which investigation, according to Gonterman, "has continuously been an open investigation," meaning that the office "periodically receives information which [they] evaluate, and where warranted, investigate."

In early January 1995, Gonterman was instructed to interview Gutierrez "regarding the possible existence of a videotape of [appellant] molesting a minor child." On January 5, 1995, Gonterman had a telephone conversation with reporter Kevin Smith in which Smith asked him (Gonterman) whether he was investigating the existence of the alleged videotape. Gonterman told Smith he was intending to conduct some further interviews and asked Smith if he had any knowledge of such a videotape. Also on January 5, 1995, Gonterman interviewed Gutierrez concerning his knowledge and "[s]hortly thereafter ... discontinued any further efforts in the matter."

Sneddon handled the investigation of allegations against appellant on behalf of the Santa Barbara District Attorney's Office. In December of 1994, he "received information that a video tape existed depicting [appellant] engaged in sexual contact with a minor child." According to the reports received by Sneddon, Gutierrez had seen the videotape. At around the same time, Dimond contacted Sneddon to inquire about reports that his office was looking for such videotape or investigating new allegations of molestation against appellant. Sneddon informed her that he "was not at liberty to comment upon such reports" but stated that the investigation was "still open...." Although Sneddon did not discuss this with Dimond, at the time

[ 80 Cal.Rptr.2d 1, 7 ]

of their conversation, a decision had already been made to send Gonterman to look into the existence of the tape and procure it if possible. Gonterman's investigation led to the conclusion that no such videotape could be located or proven to exist. According to Sneddon's "recollection and belief this conclusion was reached sometime after the "Hard Copy" broadcast on January 9.

To demonstrate lack of malice, respondents first set forth facts showing Dimond's lengthy experience as a reporter. According to Dimond, in late 1994, she heard from fellow journalist Brian Anderson that a new and significant story about appellant was developing.[ 5 ] At around that same time, Dimond was contacted by Gutierrez concerning the possible existence of the incriminating videotape. Thereafter, she contacted Sneddon and his refusal to confirm or deny that his office was attempting to locate such videotape led her to believe that to mean she was on the right track since, according to her understanding and experience, he would have given an outright denial had there been no truth to the story. She subsequently talked to Kevin Smith, who related that he had been interviewed by Gonterman in connection with the videotape and had been told that Gonterman intended to conduct additional interviews. On January 7, 1995, the London Sun, a British newspaper, which reported that "`Los Angeles police and legal officials were in a frantic race'" to obtain the alleged videotape, was brought to Dimond's attention.[ 6 ] After being informed of that article, Dimond again spoke to Gutierrez, who claimed to have seen the videotape and agreed to do an on-camera interview.

Gutierrez had provided early and accurate information on a number of stories pertaining to appellant, such as his marriage to and divorce from Lisa Marie Presley. During the on-camera interview, which occurred on January 8, Gutierrez related that he had met with the mother of the boy involved; that she had attempted to contact the Los Angeles Police Department and was not taken seriously; that she was told to take the tape to any police station; that the tape was "very graphic"; that the District Attorney's Office had been in contact with the mother; that appellant's "people" were trying to find the tape; that the tape was recorded three weeks before Christmas; and that the tape was in black and white.

All this led to undisputed fact number 38, the key fact on lack of malice: "Based on Mr. Gutierrez's long track record as a reliable source, coupled with the other reports Ms. Dimond received from Mr. Anderson, Mr. Sneddon and Mr. Smith, inter alia, Ms. Dimond believed Mr. Gutierrez's information to be accurate."

Respondents in their statement of undisputed facts went on to relate that Doran's involvement in the story was limited to the on-camera interview of Kevin Smith, who was not named as a defendant and who made no statements alleged in the complaint to be false. Doran was not involved in the factual investigation, editing, or decision to broadcast the story.

Appellant's Opposition
The one significant area of dispute between the parties centered on fact number 38 concerning Dimond's belief in Gutierrez's accuracy. In this regard, appellant's position was supported by the testimony of Brian Anderson's wife, Lisa Marlowe. According to her testimony, sometime during the weekend of January 7 and 8, 1995, Dimond called Anderson from whom she had first heard rumors about a new development concerning appellant. Anderson was not home, so Dimond spoke with Marlowe. Dimond asked Marlowe whether she or her husband had heard the story about a video depicting appellant with a young boy. Marlowe replied

[ 80 Cal.Rptr.2d 1, 8 ]

she had not and stated, "`That sounds like B.S.,'" to which Dimond responded, "`That's what I thought.'" Marlowe also said, "`Don't tell me this came from Victor [Gutierrez], because he never mentioned it to us'" and "`This sounds like a setup,' because why would this surface all of a sudden" to which Dimond's reply was "'Yeah, that's what I thought.'"

Otherwise, appellant did not dispute the facts set forth by respondents, although he contended that respondents were exaggerating or overstating the evidence in certain areas.[ 7 ] Appellant relied on additional facts set forth in his counterstatement to establish the viability of his claims. As an initial matter, the counterstatement sets forth as an additional undisputed fact that no incriminating tape existed, pointing to appellant's deposition testimony in which he stated that he has no knowledge of any such tape. In addition, according to the testimony of the woman Gutierrez allegedly identified as the victim's mother,[ 8 ] her sons were not molested by appellant, she has never received any payment from appellant, and she has never met Gutierrez. Appellant also established the lack of any record of Gutierrez at the hotel where he claims to have met the mother and viewed the tape.

Appellant's opposition was further supported by the declaration of Lauren Weis, Head Deputy of the Torrance Branch of the Los Angeles District Attorney's Office, and Gonterman's deposition testimony. Weis learned that Gutierrez was claiming to have seen a videotape of appellant engaged in sexual conduct with a young boy, and informed Sneddon. They jointly decided to instruct Gonterman to interview Gutierrez. Weis also asked Gonterman to speak to Kevin Smith, who had called and left a message asking about the videotape. During that interview, Smith told Gonterman he had heard that Weis believed he had the tape which Gonterman told him was not true. Smith also told Gonterman that the tape was 27 minutes long and was recorded in black and white. After Gonterman spoke to Gutierrez and Smith, which interviews lasted a total of approximately one hour, nothing more was done to search for a videotape.

The counterstatement of facts sets out a number of actions Dimond could have taken, but did not take, to check out the story, such as asking Gutierrez the name of the hotel where he allegedly saw the tape or the name of the mother whose son was supposedly involved; insisting that Gutierrez produce a copy of the tape; talking to Gonterman about his investigative efforts; obtaining another source for the story; or contacting someone at the Sun about their videotape story.

Concerning Doran, the counterstatement sets forth the following facts to establish his culpability: that he failed to ask Smith the names of his sources, that, according to his testimony, he "did not care who Smith's sources were," that he "didn't particularly care" whether the videotape existed, that his job was simply to "get a good sound bite," and that he "entertained the possibility that the videotape never existed, but he never shared this with Dimond" or others connected to the program.

The Trial Court's Order
The trial court granted respondents' motion for summary judgment as to both the first and second causes of action. The court's order stated in pertinent part: "To give rise to liability for defamation, a statement must consist of false assertions of fact regarding the plaintiff. [Citations.] The issue of whether a statement concerns an actionable assertion of fact is a question of law for the court, properly resolved at the summary judgment stage. [Citations.] [¶] The undisputed evidence before the Court shows that the statements at issue truthfully and accurately reported on a developing story about the possible existence of a video tape, and it was stated [in the broadcast] that it was impossible to independently confirm the existence of the videotape.... [¶] Furthermore,

[ 80 Cal.Rptr.2d 1, 9 ]

... the broadcasts at issue contained primarily descriptive language or production effects reflecting the Paramount Defendants' interpretation of undisputed investigative activity. Such elements of the broadcast cannot give rise to liability; `[t]he First Amendment requires that the courts allow latitude for interpretation.' Partington v. Bugliosi, 56 F.3d 1147, 1154 (9th Cir.1995). [¶] As such, the Court finds that the Paramount Defendants' reports regarding the videotape do not contain false statements of fact, and therefore no liability is established under Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)."

Concerning Dimond's statement that she was "`as sure as [she] possibly [could] be of the videotape's existence,'" the court stated that that was "clearly her personal opinion" and not a false statement of fact.

Turning to the issue of malice, the trial court ruled: "Alternatively, even if Paramount Defendants' statements regarding the videotape could be construed as false assertions of fact, the Court finds that Plaintiff has not shown the ability to prove actual malice by clear and convincing evidence. `[T]he burden lies on the plaintiff opposing the motion to affirmatively establish by clear and convincing evidence that a genuine issue of fact exists as to whether actual malice can be proven at trial.' Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146, 154, 269 Cal.Rptr. 379."

Concerning Dimond's conversation with Lisa Marlowe, the court found that it "does not rise to the level of clear and convincing evidence of serious doubt. Marlowe did not explain any factual basis for her belief or that she even informed Dimond as to the reasons for her belief. Moreover, the alleged conversation occurred before Dimond interviewed Gutierrez and obtained the information which enabled her to reach a final determination regarding his account of the videotape." In the face of "undisputed evidence... that Gutierrez had been a reliable source of information for Dimond in the past," and case law which "established that the broadcast of all or part of a news story on the basis of information provided by a single reliable source precludes a finding of actual malice," the court concluded that "[appellant's] isolated piece of ambiguous evidence does not establish by clear and convincing evidence that a genuine issue of fact exists as to whether actual malice can be proven at trial." This appeal followed the judgment entered on the court's order.

DISCUSSION
I
The tort of defamation exists whenever a false and unprivileged statement which has a natural tendency to injure or which causes special damage is communicated to one or more persons who understand its defamatory meaning and its application to the injured party. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 471, p. 558; id. § 476, pp. 560-561.) Moreover, when a party repeats a slanderous charge, he is equally guilty of defamation, even though he states the source of the charge and indicates that he is merely repeating a rumor. (5 Witkin, Summary of Cal. Law, supra, § 478, p. 562.) "If A says B is a thief, and C publishes the statement that A said B was a thief, in a certain sense this would be the truth, but not in the sense that the law means.... [I]t would be but a repetition by [C] of a slanderous charge. His defense must consist in showing that in fact B is a thief." (Gilman v. McClatchy (1896) 111 Cal. 606, 612, 44 P. 241; see also Ray v. Citizen-News Co. (1936) 14 Cal.App.2d 6, 8-9, 57 P.2d 527 ["A false statement is not less libelous because it is the repetition of rumor or gossip or of statements or allegations that others have made concerning the matter."]; Arditto v. Putnam (1963) 214 Cal.App.2d 633, 639, fn. 2, 29 Cal.Rptr. 700.)

Since republication of statements made by A about B is a journalist's stock in trade, this rule could lead to a climate of self-censorship in which media organizations hesitate to publish any negative information about a public figure, no matter how well founded, for fear of becoming involved in protracted legal proceedings. Concern about the possible impediment to freedom of the press to criticize public officials formed the backdrop for the United States Supreme Court's 1964 landmark

[ 80 Cal.Rptr.2d 1, 10 ]

decision in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 placing First Amendment limits on state defamation law. There, the court held that a "public official" is prohibited "from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." (376 U.S. at pp. 279-280, 84 S.Ct. 710.)

Later cases expanded the protection afforded by New York Times Co. v. Sullivan. In Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, the court determined that the New York Times test should apply to criticism of "public figures" as well as "public officials."[ 9 ] (388 U.S. at p. 155, 87 S.Ct. 1975.) The court further held that the showing of malice must be made by clear and convincing evidence. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789.) Later, in Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783, the court held that "the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern." The court recognized "a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages." (Id. at p. 776, 106 S.Ct. 1558.)

Even before these Supreme Court pronouncements, however, a "fair comment" defense or privilege[ 10 ] had been incorporated into common law as an affirmative defense to an action for defamation. The principle "`afford[ed] legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact.'" (1 F. Harper & F. James, Law of Torts, § 5.28, p. 456 (1956), fn. omitted.) In other words, under common law a statement could not be the basis for liability when it concerned a matter of public concern, was based upon true or privileged facts, represented the actual opinion of the speaker, and was not made solely for the purpose of causing harm, (see Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 13-14, 110 S.Ct. 2695, 111 L.Ed.2d 1; Rest., Torts, § 606.) The defense did not extend to a "false statement of fact" which could be "implied from an expression of opinion." (Rest.2d Torts § 566, com. a, p. 171.)

In Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, a case which involved defamation of nonpublic persons, the Supreme Court made a statement in dicta which seemed to expand the protection afforded to expressions of opinion: "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact." (418 U.S. at pp. 339-340, 94 S.Ct. 2997, fn. omitted.)

Our Supreme Court cited this dictum in Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 228 Cal.Rptr. 206, 721 P.2d 87, in which a scathing review of a television program on sex education became the subject of a defamation lawsuit. The review included such comments as "`[the program] does little to advance the subject [of sex education] and a lot to exploit it,'" and "`My impression is that the executive producer ... told his writer/producer ..., "We've got a hot potato here—let's pour on titillating innuendo and as much bare flesh as

[ 80 Cal.Rptr.2d 1, 11 ]

we can get away with. Viewers will eat it up!"'" (42 Cal.3d at p. 258, 228 Cal.Rptr. 206, 721 P.2d 87.) To determine whether the review contained actionable statements of fact or nonactionable opinion, the court "must place itself in the position of the hearer or reader, and determine the sense or meaning of the statement according to its natural and popular construction. [Citation.] `"That is to say, the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader."'" (Id. at p. 260, 228 Cal.Rptr. 206, 721 P.2d 87, quoting MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 547, 343 P.2d 36.)

According to the Supreme Court, "`[W]hat constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole. Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.'" (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 260, 228 Cal.Rptr. 206, 721 P.2d 87, quoting Gregory v. McDonnell Douglas (1976) 17 Cal.3d 596, 601, 131 Cal. Rptr. 641, 552 P.2d 425.)

The court went on to explain that "[f]or these reasons, California courts have developed a `totality of the circumstances' test to determine whether an alleged defamatory statement is one of fact or of opinion" which the court described as follows: "First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. [Citations.] Where the language of the statement is `cautiously phrased in terms of apparency,' the statement is less likely to be reasonably understood as a statement of fact rather than opinion. (See, e.g., Gregory, supra, 17 Cal.3d at p. 603 [131 Cal.Rptr. 641, 552 P.2d 425].) [¶] Next, the context in which the statement was made must be considered. Since `[a] word is not a crystal, transparent and unchanged, [but] is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used[,]' the facts surrounding the publication must also be carefully considered. (See Towne v. Eisner (1918) 245 U.S. 418, 425 [62 L.Ed. 372, 376, 38 S.Ct. 158].)" (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at pp. 260-261, 228 Cal.Rptr. 206, 721 P.2d 87, fn. omitted.)

In short, "[t]his contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed. [Citation.]" (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 261, 228 Cal.Rptr. 206, 721 P.2d 87.)

Subsequently, the United States Supreme Court made clear in Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 18, 110 S.Ct. 2695, that the dicta in Gertz should not be read "to create a wholesale defamation exemption for anything that might be labeled `opinion.'" In Milkovich, the defendant had authored an "opinion" column in a local newspaper stating that the high school wrestling team had avoided probation because the wrestling coach and former superintendent had lied in a review hearing. The court was not persuaded that "an additional separate constitutional privilege for `opinion' is required to ensure the freedom of expression guaranteed by the First Amendment" (497 U.S. at p. 21, 110 S.Ct. 2695), and refused to recognize "an artificial dichotomy between `opinion' and fact." (Id. at p. 19, 110 S.Ct. 2695.) "If a speaker says, `In my opinion John Jones is a liar,' he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, `In

[ 80 Cal.Rptr.2d 1, 12 ]

my opinion Jones is a liar,' can cause as much damage to reputation as the statement, `Jones is a liar.' As Judge Friendly aptly stated: `[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words "I think."'" (Id. at pp. 18-19, 110 S.Ct. 2695, quoting Cianci v. New Times Publishing Co. (2d Cir.1980) 639 F.2d 54, 64.)

II
With these authorities in mind, we turn to the facts of the case before us. Dimond stated in both the KABC-AM broadcast and the "Hard Copy" interview that investigators within the District Attorney's Office were looking for a videotape that they believed would show appellant and a young boy engaged in some type of sexual conduct. The uncontroverted evidence established that both the Los Angeles and Santa Barbara District Attorney's Offices had heard reports of such a tape, were looking for it, and had assigned an investigator, Gonterman, to conduct further interviews of persons who might have had knowledge of it.

Appellant does not dispute this evidence but contends that use of inflammatory language such as "racing," "scrambling," and "hot on the trail," as well as language which suggested that a previously closed investigation had been reopened, pushed an otherwise truthful statement into the realm of slander. The Supreme Court has sanctioned the use of "rhetorical hyperbole," exaggeration, and other colorful language to make a point. (See, e.g., Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 13-14, 90 S.Ct. 1537, 26 L.Ed.2d 6; Letter Carriers v. Austin (1974) 418 U.S. 264, 283-285, 94 S.Ct. 2770, 41 L.Ed.2d 745.) We are not persuaded that the colorful language used by the "Hard Copy" reporters changed the essential message or changed a truthful report concerning the District Attorney's investigative efforts into a defamatory statement. Nor are we persuaded that Dimond's reference to a "renewed" police investigation in the "Hard Copy" broadcast "conveyed the factual message that the previously closed ... investigation was now reopened" as appellant argues in his brief. Rather, it truthfully relayed the information that an open but inactive investigation had been revivified in order to investigate the report of new evidence. The truth of this statement is confirmed by the testimony of Gonterman, Weis, and Sneddon that the reports of the videotape momentarily breathed life into a dormant investigation.

As a separate ground for his claim, appellant points out that the statements made in the broadcasts taken as a whole conveyed the impression not just that the District Attorney's Office was looking for an incriminating videotape, but that such videotape in fact existed. Certainly that was the gist of the KABC-AM broadcast in which Dimond said she was sure as she could possibly be that the tape existed, that one of her best sources had seen the tape, that someone close to appellant had found the tape and given it to the mother of the boy involved, that appellant knew about the existence of the tape, that the tape depicted oral sex, that the mother had attempted to turn the tape over to the police and was rebuffed by their lack of interest, and that copies had been made of the tape.[ 11 ] It is true that Dimond was merely parroting what she had heard from "sources" but, as we have seen, under common law, it is no defense to an action for defamation to say that one is merely accurately repeating rumor or a statement made by a third party. (5 Witkin, Summary of Cal. Law, supra, § 478, p. 562.) Thus, the issue presented is whether the First Amendment as interpreted in New York Times Co. v. Sullivan provides a defense.

III
As we have seen, the court held in New York Times Co. v. Sullivan, supra, 376 U.S.

[ 80 Cal.Rptr.2d 1, 13 ]

254, 84 S.Ct. 710, 11 L.Ed.2d 686, that "constitutional guarantees require[] ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." (376 U.S. at pp. 279-280, 84 S.Ct. 710.)

Actual malice under New York Times Co. v. Sullivan "is quite different from the common-law standard of `malice' generally required under state tort law to support an award of punitive damages.... [C]ommonlaw malice—frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff's rights—would focus on the defendant's attitude toward the plaintiff[] ... not toward the truth or falsity of the material published. [Citations.]" (Cantrell v. Forest City Publishing Co. (1974) 419 U.S. 245, 252, 95 S.Ct. 465, 42 L.Ed.2d 419.) The New York Times Co. v. Sullivan test "directs attention to the `defendant's attitude toward the truth or falsity of the material published ... [not] the defendant's attitude toward the plaintiff.' [Citation.]" (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 257, 208 Cal.Rptr. 137, 690 P.2d 610.) "`[I]ll will toward the plaintiff, or bad motives, are not elements of the New York Times standard.' [Citations.]" (Letter Carriers v. Austin, supra, 418 U.S. at p. 281, 94 S.Ct. 2770.)

In St. Amant v. Thompson (1968) 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262, the court clarified the meaning of the term "actual malice" for First Amendment purposes. There, defendant, a candidate for political office, had interviewed a member of a local union. The interviewee reported that plaintiff, a deputy sheriff, had conspired with the president of the local union to conceal incriminating documents. The candidate reported this allegation word for word in a televised campaign speech.

Purporting to apply the New York Times Co. v. Sullivan malice standard, the Louisiana Supreme Court concluded that defendant had broadcast false information about plaintiff "recklessly, though not knowingly." (St. Amant v. Thompson, supra, 390 U.S. at p. 730, 88 S.Ct. 1323.) "Several reasons were given for this conclusion. [Defendant] had no personal knowledge of [plaintiffs] activities; he relied solely on [the interviewee's] affidavit although the record was silent as to [the interviewee's] reputation for veracity; he failed to verify the information with those in the union office who might have known the facts; he gave no consideration to whether or not the statements defamed [plaintiff] and went ahead heedless of the consequences; and he mistakenly believed he had no responsibility for the broadcast because he was merely quoting [the interviewee's] words." (Ibid.)

The Supreme Court held that these factors fell short of proving defendant's "reckless disregard for the accuracy of his statements about [plaintiff]." (St. Amant v. Thompson, supra, 390 U.S. at p. 730, 88 S.Ct. 1323.) First, the court noted the difficulty of describing the boundaries of the standard: "`Reckless disregard,' it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law." (Id. at pp. 730-731, 88 S.Ct. 1323.) Turning to prior case law for guidance and further definition, the court noted: "In New York Times, supra, the plaintiff did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v. Louisiana, 379 U.S. 64 [85 S.Ct. 209, 13 L.Ed.2d 125] (1964), also decided before the decision of the Louisiana Supreme Court in this case, the opinion emphasized the necessity for a showing that a false publication was made with a `high degree of awareness of ... probable falsity.' 379 U.S., at 74 [85 S.Ct. 209]. Mr. Justice Harlan's opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 153 [87 S.Ct. 1975, 18 L.Ed.2d 1094] (1967), stated that evidence of either deliberate falsification or reckless publication `despite the publisher's awareness of probable falsity' was essential to recovery by public officials in defamation actions. These

[ 80 Cal.Rptr.2d 1, 14 ]

cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." (St. Amant v. Thompson, supra, 390 U.S. at p. 731, 88 S.Ct. 1323.)

The court recognized the possibility "that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant's testimony that he published the statement in good faith and unaware of its probable falsity. Concededly the reckless disregard standard may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher. But New York Times and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones." (St. Amant v. Thompson, supra, 390 U.S. at pp. 731-732, 88 S.Ct. 1323.)

The court warned that the defendant in a defamation action brought by a public official could not "automatically insure a favorable verdict by testifying that he published with a belief that the statements were true." (St. Amant v. Thompson, supra, 390 U.S. at p. 732, 88 S.Ct. 1323.) It would be up to the finder of fact to determine whether the publication was made in good faith. "Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." (Ibid., fn.omitted.)

In the present case, Dimond did more than profess her good faith. Not only did she state that she believed Gutierrez to be accurate, she backed up her statement with evidence of his reliability as a source on other stories pertaining to appellant—even some that initially seemed far-fetched.[ 12 ] In addition, she established a palpable reason to believe the story about the videotape due to the fact that the District Attorney's Office was searching for a tape such as the one Gutierrez described (as confirmed by Kevin Smith, who had spoken with Gonterman, and the "no comment" reply from Sneddon), and the story describing the videotape which appeared in the London Sun. Moreover, the report did not come out of the blue. Appellant had been the subject of a lengthy criminal investigation by the District Attorney's Office which was widely reported in the press, and had settled a lawsuit in which allegations of sexual molestation were made.

Against this, appellant puts the statement of Lisa Marlowe that in the weekend before the broadcasts aired, Dimond expressed agreement with Marlowe's doubts about the story.

In Reader's Digest Assn. v. Superior Court supra, 37 Cal.3d at page 253, 208 Cal.Rptr. 137, 690 P.2d 610, the court made clear that although the standard for granting

[ 80 Cal.Rptr.2d 1, 15 ]

summary judgment in defamation cases was no different from the standard in all other cases, "courts may give effect to ... concerns regarding a potential chilling effect [from protracted litigation] by finding no triable issues unless it appears that actual malice may be proved at trial by clear and convincing evidence—i.e., evidence sufficient to permit a trier of fact to find for the plaintiff and for an appellate court to determine that the resulting judgment `"does not constitute a forbidden intrusion on the field of free expression[.]"'" (37 Cal.3d at p. 252, 208 Cal.Rptr. 137, 690 P.2d 610, quoting Bose Corp. v. Consumers Union (1984) 466 U.S. 485, 508, 104 S.Ct. 1949, 80 L.Ed.2d 502; accord, Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 685, 150 Cal.Rptr. 258, 586 P.2d 572["[B]ecause unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. [Citation.] Therefore, summary judgment is a favored remedy, and upon such a motion the trial court must determine whether there is a sufficient showing of malice to warrant submission of that issue to the jury. [Citations.]"].)

The United States Supreme Court has agreed: "[T]here is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence, [¶] Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." (Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202.)

The trial court correctly applied this test in ruling on the motion for summary judgment as it pertained to the statements concerning the existence of the alleged videotape. Accepting the testimony of Lisa Marlowe as true, the court concluded it was insufficient to establish either knowledge of falsity or reckless disregard of truth or falsity on Dimond's part under the applicable standard of clear and convincing evidence.

We agree with the court's assessment. The New York Times Co. v. Sullivan standard does not require that the reporter hold a devout belief in the truth of the story being reported, only that he or she refrain from either reporting a story he or she knows to be false or acting in reckless disregard of the truth. The statements to Marlowe indicate that Dimond had doubts, not that she "knew" Gutierrez's story to be untrue. A healthy skepticism is a normal part of a reputable journalist's makeup and leads him or her to obtain corroborating evidence to back up a source's story. Dimond did not act recklessly in the face of her doubts, but instead sought out corroborating evidence through her conversations with Smith and Sneddon, each of whom confirmed, in their own way, that they had heard a similar report. The story in the Sun provided further corroboration. It may be that the sources for the information relayed by the District Attorney's Office, Smith, and the Sun can be traced directly or indirectly to Gutierrez, as appellant now claims, but there is no evidence to suggest that Dimond had any reason to know or suspect this at the time. The statements attributed to Dimond by Marlowe evidence neither knowledge of falsity nor reckless disregard of the truth.[ 13 ]

Appellant cites Goldwater v. Ginzburg (2d Cir.1969) 414 F.2d 324 for the proposition that actual malice can be inferred from the defendant's admissions, despite her professed reliance on reliable sources and express denial of actual malice, and used to deny summary judgment. First, it must be noted that Goldwater was decided long prior to Anderson v. Liberty Lobby, Inc., supra, 477 U.S. 242, 106 S.Ct. 2505, in which the summary judgment standard was set forth. Moreover, in Goldwater, the evidence showed that the defendant reporter had not accurately quoted his sources, but had altered observations and taken them out of context. (414 F.2d at p. 337.) No such accusations have

[ 80 Cal.Rptr.2d 1, 16 ]

been made against the respondents in this case.

DISPOSITION
The judgment is affirmed.

CHARLES S. VOGEL, P.J., and EPSTEIN, J., concur.

HELEN HARRIS-SCOTT Vs MICHAEL JACKSON


HARRIS-SCOTT v. JACKSON

HELEN M. HARRIS-SCOTT, Plaintiff and Appellant,
v.
MICHAEL JOSEPH JACKSON, Defendant and Respondent.

B200107

Court of Appeals of California, Second Appellate District, Division Two

August 7, 2008

Not to be Published

Law Office of David Harold Beyer, David H. Beyer for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

BOREN, P.J.

After plaintiff made many attempts to serve defendant personally at the residence he owns in California, and at other locations, and after service by mail was attempted, the trial court denied plaintiff's requests to proceed with service by publication. The court rejected all of plaintiff's efforts to effect service, despite evidence that defendant has left to live at an unknown location outside the United States. The court then dismissed plaintiff's lawsuit with prejudice, though this is not authorized by statute. We reverse.

FACTS
On April 28, 2006, appellant Helen M. Harris-Scott—acting in propria persona—filed a harassment lawsuit against respondent Michael Joseph Jackson. Appellant filed a proof of service on May 18, 2006, showing that on May 6, 2006, she sent the summons and complaint by mail to Neverland ranch, a property Jackson owns in Los Olivos, in care of the town's postmaster.

On June 23, 2006, Jackson moved to quash service of the summons and complaint. He argued that service was defective because appellant attempted to effectuate service herself instead of using a nonparty to the action; because she did not attempt to serve Jackson personally before using substituted service by mail; and because she did not leave a copy of the documents at his home or business. His papers describe appellant's claims as "irrelevant, preposterous and unsupported," and state, "Plaintiff's case is blatantly frivolous, and if there was ever a time to strictly apply the statutory service requirements, this is it." At a hearing on August 16, 2006, Jackson's attorney disclosed that Jackson "is out of the country." The court granted Jackson's motion to quash.

Appellant filed a new proof of service on September 20, 2006. Although service was made by a third party, it was once again sent to the postmaster in Los Olivos. Appellant filed a declaration stating that she sought to effect service on Jackson's attorney, who informed appellant that he was not authorized to accept service for Jackson. In a letter to appellant, Jackson's attorney mentioned appellant's attempted mail service at Neverland ranch and wrote, "As you know, Mr. Jackson does not live there. You are probably also aware that he is living outside the United States." Appellant twice more sent the summons and complaint to Jackson, in care of the Los Olivos postmaster.

On October 25, 2006, Jackson again moved to quash service of the summons and complaint. He argued that service was defective because neither his attorneys nor the postmaster are authorized to accept service on his behalf; he did not sign an acknowledgement indicating his receipt of the summons; and the summons was not delivered to his dwelling, usual abode, business or usual mailing address. Jackson characterized appellant's claims of stalking and harassment as "false and outlandish" and "amazing."

On November 17, 2006, appellant filed a request asking the court to authorize service by publication. She declared that personal service was not possible because Jackson is "out of town"; Jackson's attorney would not accept service; the postmaster at Los Olivos would not accept service; and service was attempted at two businesses.[ 1 ] At a hearing on December 5, 2006, the court found that appellant had not shown diligence sufficient to warrant approval of her request to serve Jackson by publication. On January 5, 2007, appellant filed a proof of service showing that she attempted to serve someone by the name of Michael A. Jackson at the Miami Detention Center in Florida. She also attempted to effect service at an address in Las Vegas, Nevada, where Jackson's mother lives, and at a property in Encino that is jointly owned by Jackson and one of his sisters.

Appellant hired an attorney who appeared on her behalf at a hearing on February 7, 2007. The court observed that appellant had served the wrong people all over the country, but there was no service on Jackson. Appellant's counsel replied that there is no way to approach Neverland ranch to effect service, so the only way to serve is by mail. On February 14, 2007, Jackson moved to quash appellant's latest efforts to serve the summons. He argued that she used an incorrect form for mail service, and did not obtain an acknowledgment of receipt signed by Jackson.

Appellant responded by pointing out her numerous attempts at personal and mail service, and her attempted service on Jackson's attorney. On February 8, 10, 12 and 13, 2007, appellant once again attempted to serve Jackson at Neverland ranch, which is Jackson's residence in California. The documents were left inside of the front gate of the ranch by a process server. This was accompanied by sending the summons to Neverland by mail and certified mail, return receipt requested. Attempts to serve Jackson at a property he owns in Encino were unsuccessful. Jackson's California corporation was dissolved and could not be served. Further, Jackson's attorney would not disclose his client's whereabouts. It appeared that Jackson no longer resides in California. Appellant renewed her request for service by publication.

At a hearing on February 28, 2007, the court rejected appellant's argument that there was sufficient diligence to justify service by publication. The court stated, "You know, the case law would work if it was a normal human being like you or I or Miss Scott. This is Michael Jackson." This prompted appellant's counsel to remark, "He doesn't want to be found."

The court granted Jackson's motion to quash on March 21, 2007. It dismissed appellant's case with prejudice on April 16, 1007, pursuant to Code of Civil Procedure sections 581 and 572.

DISCUSSION
1. The Dismissal Order

Appeal is taken from the trial court's signed dismissal order. A signed dismissal order is an appealable judgment. (Code Civ. Proc., § 581d; Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 345, fn. 3.)[ 2 ] The dismissal order cites two statutes. One of the statutes the court relied upon is section 572, which has no apparent relevancy to this case.[ 3 ]

The dismissal order also cites section 581, which states that "[t]he court may dismiss without prejudice the complaint in whole . . . when dismissal is made pursuant to Section 418.10." (§ 581, subd. (h), italics added.) Section 418.10 authorizes a motion to quash service of summons on the ground that the court lacks jurisdiction over the defendant. (§ 418.10, subd. (a)(1); Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036.) "[A] motion to quash is the procedure usually employed to challenge the validity of service. . . ." (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1433.) The order under appeal is the trial court's dismissal of appellant's case, with prejudice: this is improper as a matter of law because section 581 only authorizes a dismissal "without prejudice" when a motion to quash is granted. Thus, the dismissal order is reversible on its face.

2. Denial Of Appellant's Requests For Service By Publication

The scope of our review encompasses more than just the appealable judgment. We may review "any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the right of a party. . . ." (§ 906.) This enables us to consider the propriety of the trial court's refusal to approve appellant's requests to serve Jackson by publication. The denial of appellant's requests ultimately led to the dismissal of appellant's case for failure to serve the summons on Jackson personally.

The record shows that appellant made numerous attempts to serve Jackson personally at Neverland ranch, a residence Jackson owns in Los Olivos. Personal delivery of the summons and complaint to the defendant is an authorized method for effecting service. (§ 415.10.) Indeed, it is the "method of choice." (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41.) Appellant's process servers were unable to gain access to the home on the ranch, because the property is gated. As a result, they could not leave a copy of the summons and complaint with Jackson personally or with "a competent member of the household." (§ 415.20, subd. (b).) Though people "have the right to choose their abodes; they do not have the right to control who may sue or serve them by denying them physical access." (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393.)

Appellant attempted to make substituted service on Jackson by mail. Summons may be served by mail, with an "Acknowledgement of Receipt" attached; service is deemed complete on the date the acknowledgement of receipt is signed and returned to the sender. (§ 415.30.) The acknowledgment of receipt sent by appellant was not signed or returned by Jackson. In response to appellant's attempted service by mail on Jackson at Neverland ranch, Jackson's attorney wrote that Jackson "is living outside the United States." The attorney refused to accept service on behalf of Jackson and would not disclose Jackson's whereabouts.

After her failed efforts to serve Jackson personally, at Neverland ranch, at his Mother's home, at a residence he co-owns in Encino, and by mail, appellant asked the court to authorize service by publication. "A summons may be served by publication if upon affidavit it appears to the satisfaction of the court . . . that the party to be served cannot with reasonable diligence be served in another manner specified in this article and . . . [a] cause of action exists against the party upon whom service is to be made. . . ." (§ 415.50, subd. (a).)

"Section 415.50 provides a method for effecting service upon a defendant whose whereabouts are unknown and who has no known fixed location where service can be otherwise effected" by personal or mail service, or by service on an agent. (Judicial Council com., 14B West's Ann. Code Civ. Proc. (2004 ed.) foll. § 415.50, p. 80.) The usual means of service make "service by publication unnecessary except where a defendant's whereabouts and his dwelling house or usual place of abode, etc., cannot be ascertained with reasonable diligence, and where no person who may be served on his behalf can be located with reasonable diligence. [¶] The term `reasonable diligence' . . . denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. [Citations.] A number of honest attempts to learn defendant's whereabouts or his address by inquiry of relatives, friends, and acquaintances, or of his employer, and by investigation of appropriate city and telephone directories, the voters' register, and the real and personal property index in the assessor's office, near the defendant's last known location, are generally sufficient." (Id. at p. 81.)

a. Showing of Diligence

Appellant has adequately demonstrated diligence in attempting to serve Jackson. Process servers made numerous attempts to serve Jackson at his last known residence in California, a property he still owns. Service was also attempted at a residence that Jackson co-owns, and at his mother's residence. Appellant hired a process server to locate Jackson in Las Vegas, to no avail. Appellant's attorney researched online for Jackson's location, without success, and discovered that Jackson's California corporation has been dissolved. Appellant asked Jackson's attorney to divulge his client's location, but was rebuffed, though as Jackson's legal representative "he was a person who might reasonably be expected to know" of Jackson's whereabouts. (Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 334.) The problem is that Jackson—in his attorney's words—"is living outside the United States." Standards of diligence do not require appellant to conduct a country-by-country search for an elusive defendant.

It appears that the trial court was cognizant that appellant has made diligent efforts to locate and serve Jackson. But the court held appellant to a different—and higher—standard because the defendant is a celebrity.[ 4 ] Contrary to the court's belief, the law applies equally to celebrities and noncelebrities. It was an abuse of discretion to require appellant to surmount a higher standard of diligence simply because she is suing someone famous.

b. Existence of a Cause of action

Section 415.50 states that it must appear that "a cause of action exists against the party upon whom service is to be made. . . ." "For the purpose of service by publication, the existence of a cause of action is a jurisdictional fact." (Harris v. Cavasso (1977) 68 Cal.App.3d 723, 726.) "`"[T]here must be an affidavit containing a statement of some fact which would be legal evidence, having some appreciable tendency to make the jurisdictional fact appear, for the Judge to act upon before he has any jurisdiction to make the order [for service by publication]."'" (Ibid.) Where "the cause of action arose out of defendant's activities in this state" "[t]his fact alone is sufficient under the due process clause to permit the courts of this state to assert personal jurisdiction over him." (Owens v. Superior Court (1959) 52 Cal.2d 822, 830. In Owens, service by publication for an Arizona resident was justified by his ownership and possession of a dog that bit the plaintiff in California.[ 5 ]

In the case at bench, appellant attached a declaration under penalty of perjury to her complaint, giving details based on personal knowledge of her claim that Jackson has allegedly committed wrongful acts of stalking, surveillance, and harassment at appellant's home in California. This gives rise to personal jurisdiction in California and a cause of action. "`A cause of action . . . arises out of an antecedent primary right and corresponding duty and a delict or breach of such primary right and duty by the person on whom the duty rests.'" (Hurt v. Haering (1922) 190 Cal. 198, 200.) Appellant has stated the essentials of a cause of action sufficient to satisfy section 415.50. The substantive merit of her claim (or lack of merit) cannot be addressed at this preliminary stage of the lawsuit.

3. Waiver Of Defect In Service

Appellant argues that Jackson has waived his right to object to the manner of service by making a general appearance in the case, and must therefore be held to answer the complaint. "`A defendant appears in an action when the defendant answers, demurs, [or] files a notice of motion to strike. . . .' A defendant who has not yet answered has been held to have made a general appearance—that is, to have conceded the jurisdiction of the court—if he invokes the authority of the court on his behalf, or affirmatively seeks relief." (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341.) Jackson did not make a general appearance by invoking the authority of the court, affirmatively seeking relief, answering or demurring. At most, he made disparaging remarks about the merits of appellant's claim in his motions to quash. This is not sufficient to constitute an appearance and does not give rise to an implied waiver of service.

DISPOSITION
The judgment is reversed. The case is remanded and the trial court is directed to authorize appellant to proceed with service by publication pursuant to Code of Civil Procedure section 415.50. Respondent to bear all costs on appeal.

We concur:

DOI TODD, J.

CHAVEZ, J.








À une audition le 28 février 2007, la cour a rejeté l'argument du requérant qu'il y avait la diligence suffisante de justifier le service par la publication. La cour a exposé, "Vous savez, la jurisprudence travaillerait si c'était un être humain normal comme vous ou moi ou Mlle Scott. C'est Michael Jackson." Cela a incité le conseil d'appelant à remarquer, "Il ne veut pas être trouvé."

Dites les filles , que faisait Mikl en 2007??? Il habitait où?????

Ici , j'ai pas vraiment compris car il s'agirait d'une histoire de recommandé signé à la place de MIKL mais ce que j'ai surligné en rouge est interpellant..Comme quoi quand on veut, on peut......

ICI REQUETE DE MIKL CONCERNANT MARIAGE DEBBIE ROWE JE VOUS FERAIS UN RESUME APRES 20h 30

IL S'AGIT DE L'ABANDON DES DROITS PARENTAUX PAR DEBBIE AU PROFIT DE MIKL

IN RE MARRIAGE OF JACKSON

39 Cal.Rptr.3d 365 (2006)

136 Cal.App.4th 980

In re MARRIAGE OF Deborah and Michael J. JACKSON.
Deborah Rowe Jackson, Respondent,
v.
Michael J. Jackson, Appellant.

No. B180135.

Court of Appeal, Second District, Division Seven.

February 15, 2006.



[ 39 Cal.Rptr.3d 365, 367 ]

Law Offices of Michael L. Abrams and Thomas Montague Hall, Las Angeles, for Appellant.

Browne Woods & George and Eric M. George, Beverly Hills; Iris Joan Finsilver, Palm Desert, for Respondent.



[ 39 Cal.Rptr.3d 365, 366 ]

PERLUSS, P.J.

The trial court in October 2001 granted the motion of Deborah Rowe Jackson to terminate her own parental rights to her two children, Michael Joseph Jackson, Jr., and Paris Michael Katherine Jackson, giving sole responsibility for the two children to their father, Michael J. Jackson. In April 2004 the trial court declared the October 2001 termination order void and in October 2004 denied Michael's[ 1 ] motion to vacate that part of the April 2004 order declaring the earlier termination of parental rights void. Michael appeals, contending the trial court properly terminated Deborah's parental rights in 2001. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
1. Termination of Deborah's Parental Rights
In October 1999 Deborah and Michael, married at the time, entered into a stipulation for judgment providing Michael would have sole legal and physical custody of their two children, Michael, Jr., and Paris; Deborah was granted visitation rights. Deborah and Michael's marriage was dissolved in April 2000. Approximately six months later Deborah decided to stop visiting the children because, according to her, the visitation "was not working out for various reasons." Deborah agreed to a modification of the earlier child custody judgment, relinquishing her visitation rights.

In October 2001 Deborah filed a motion to terminate her parental rights. Deborah's declaration in support of her motion stated, "MICHAEL has been a wonderful father to the children and I do not wish to share parenting responsibilities with MICHAEL because he is doing so well without me. [¶] ... I want to forever give up any and all rights pertaining to the children because I believe that by doing so, it is in the children's best interests." Deborah also stated she fully understood the implications of relinquishing her parental rights.

At the hearing on Deborah's motion, which Michael did not attend, Michael's counsel stated Michael did not oppose Deborah's motion and counsel was there "to facilitate a record that will allow the

[ 39 Cal.Rptr.3d 365, 368 ]

motion to be not only granted but enforceable."[ 2 ] Deborah was examined under oath by her counsel, as well as by Michael's counsel, to ensure she in fact wanted her parental rights terminated and fully understood the consequences of her action.[ 3 ] The court granted Deborah's motion, finding that, "[Deborah] has left the minor children in [Michael's] exclusive custody for a period in excess of one year. During such period, [Deborah] has not communicated with the children. [Deborah] believes that it is in the best interest of the minor children that her parental rights be terminated.... [¶] ... Based on [Deborah's] belief that it is in the best interest of the minor children that they remain in [Michael's] exclusive custody without contact by [Deborah], the Court finds that there is clear and convincing evidence to terminate [Deborah's] parental rights pursuant to Family Code § 7822(b)."

2. Deborah's Ex Parte Application for an Order to Show Cause for Modification of, Among Other Things, Child Custody and Child Support
More than two years after Deborah's motion to terminate her parental rights had been granted, she filed an ex parte application for an order to show cause seeking, among other things, temporary exclusive custody of the children pending completion of a psychiatric evaluation to assist in determining what permanent custody would be in the best interest of the children. The application stated Deborah now sought temporary custody because of concerns arising from Michael's criminal prosecution and press reports Michael had associated with the Nation of Islam, whose members Deborah believed do "not like Jews." Because she is Jewish, Deborah feared the children might be mistreated if Michael continued his association with the Nation of Islam. Michael opposed Deborah's ex parte application in part on the ground Deborah lacked standing to request the court make any orders regarding the children because the court had previously terminated her parental rights.[ 4 ]

After several rounds of extensive briefing on a myriad of legal theories and following oral argument, the court on April 2, 2004 granted in part and denied in part Deborah's ex parte application. The court found its earlier order terminating Deborah's

[ 39 Cal.Rptr.3d 365, 369 ]

parental rights (the termination order) void because it had failed to order an investigation or consider appointment of counsel for the children, as required by Family Code sections 7850 and 7861. However, the court found there was no basis at that time to permit Deborah visitation or contact with the children. The court also ruled Deborah's request for psychiatric evaluation was not an emergency warranting ex parte relief but could be renewed through a properly noticed motion.

3. Michael's Motion to Vacate the Portion of the Court's Order Declaring the Termination Order Void
On September 16, 2004, after retaining new counsel, Michael moved to vacate that portion of the court's April 2, 2004 order declaring the termination order void on the ground the order was final and could not be directly or collaterally attacked. In response Deborah argued a void order could be collaterally attacked at any time. Relying on In re Goodarzirad (1986) 185 Cal.App.3d 1020, 1026, 230 Cal.Rptr. 203 (Goodarzirad) ("stipulations between parents involving the minor children which attempt to divest the court of jurisdiction are void"), Deborah asserted for the first time the termination order was void because it had been impermissibly based on Michael's and her stipulation to terminate her parental rights.

The court denied Michael's motion to vacate, finding that, even though Michael had not stipulated in writing to the termination of Deborah's parental rights, the termination proceeding "was the functional equivalent of a stipulated proceeding/stipulated agreement between the parties" and as such void under Goodarzirad. Notwithstanding its own statement in October 2001 that termination was in the best interest of the children, the court found in fact no best-interest inquiry had been made by the court at that time. The court explained, "Not a single thing was done to enlighten the trier of fact as to the best interests of the children. The children's interests were not brought forth through any of the means that our codes provide. And [Goodarzirad] stands for the proposition that parties cannot by themselves stipulate to termination of parental rights. If there ever was a case where the parties stipulated to the termination of parent rights and nothing further was done, this was such a case."

CONTENTIONS
Michael contends (1) he did not stipulate to the termination of Deborah's parental rights and the termination order is therefore not void or otherwise subject to collateral attack; and (2) the failure of the court to follow proper procedures in conducting the inquiry into termination was invited error and, in any event, harmless.[ 5 ]

DISCUSSION
1. The Trial Court Had Jurisdiction to Decide Deborah's Collateral Attack on the October 2001 Judgment Terminating Her Parental Rights
Deborah contends, because the trial court acted in excess of its jurisdiction in entering the October 2001 termination order, that order is void and properly subject to collateral attack. Although collateral

[ 39 Cal.Rptr.3d 365, 370 ]

attacks on judgments are disfavored (see, e.g., Robert J. v. Leslie M. (1997) 51 Cal.App.4th 1642, 1647-1648, 59 Cal. Rptr.2d 905), in some cases, if the court has awarded relief to one of the parties the law declares cannot be granted, as Deborah contends occurred here, that judgment may be collaterally attacked.

Lack of jurisdiction in the "most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.]" (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196, 25 Cal.Rptr.3d 298, 106 P.3d 958 ["in the absence of subject matter jurisdiction, a trial court has no power `to hear or determine [the] case.' [Citation.] And any judgment or order rendered by a court lacking subject matter jurisdiction is `void on its face....' [Citation.]"].) In a broader sense, lack of jurisdiction also exists when a court "make[s] orders which are not authorized by statute." (Polin v. Cosio (1993) 16 Cal.App.4th 1451, 1454-1455, 20 Cal.Rptr.2d 714.) "`[I]t seems well settled ... that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction....'" (Abelleira, at p. 290, 109 P.2d 942; see Polin, at pp. 1455-1457, 20 Cal.Rptr.2d 714 [judgment awarding custody exceeded statutory authority]; Goodarzirad, supra, 185 Cal.App.3d at pp. 1024-1027, 230 Cal.Rptr. 203 [stipulated judgment to terminate paternity was void and subject to collateral attack].)[ 6 ]

If the trial court has subject matter jurisdiction to hear or determine a case and personal jurisdiction over the parties, an order or judgment rendered in excess of the court's jurisdiction, such as by its failure to follow fundamental procedures prescribed by statute, remains valid but voidable. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164, 16 Cal.Rptr.3d 754; In re Andres G. (1998) 64 Cal.App.4th 476, 482-483, 75 Cal.Rptr.2d 285.) A stipulated judgment or other order in excess of the court's jurisdiction may not be collaterally attacked absent unusual circumstances or compelling policy considerations. (In re Marriage of Hinman (1992) 6 Cal.App.4th 711, 718, fn. 2, 8 Cal.Rptr.2d 245.) Thus, appellate courts have repeatedly allowed acts in excess of jurisdiction to stand when the acts were beneficial to all parties and did not violate public policy (In re Andres G., at p. 482, 75 Cal.Rptr.2d 285; see, e.g., Cowan v. Superior Court (1996) 14 Cal.4th 367, 370-376, 58 Cal.Rptr.2d 458, 926 P.2d 438 [trial court allowed defendant to plead

[ 39 Cal.Rptr.3d 365, 371 ]

guilty to a time-barred lesser included offense]) or when allowing objection would countenance a wholly unacceptable trifling with the courts. (See, e.g., Kristine H. v. Lisa R. (2005) 37 Cal.4th 156, 166, 33 Cal.Rptr.3d 81, 117 P.3d 690; In re Griffin (1967) 67 Cal.2d 343, 346-347, 62 Cal.Rptr. 1, 431 P.2d 625 [trial court as a result of defendant's actions revoked probation after expiration of probation period].) On the other hand, appellate courts have voided acts in excess of jurisdiction when the irregularity was too great or when the act violated a comprehensive statutory scheme or offended public policy. (Goodarzirad, supra, 185 Cal.App.3d at pp. 1024-1027, 230 Cal.Rptr. 203 [stipulation of parties to deprive court of authority to modify child custody and visitation orders in dissolution proceeding]; People v. Mendez (1991) 234 Cal.App.3d 1773, 1778-1784, 286 Cal.Rptr. 216 [reducing felony conviction to misdemeanor and sealing conviction record]; People v. Blakeman (1959) 170 Cal.App.2d 596, 598, 339 P.2d 202 [banishment as condition of probation].) Whether the voidable order is enforced depends, in large part, on the degree of the procedural irregularity and whether the court's act violated a comprehensive statutory scheme or offended public policy. (In re Andres G., at p. 483, 75 Cal.Rptr.2d 285; Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1269, 284 Cal.Rptr. 18.)

As we discuss below, the termination order exceeded the trial court's jurisdiction and contravenes "the public policy favoring that a child has two parents rather than one." (Kristine H. v. Lisa R., supra, 37 Cal.4th at p. 166, 33 Cal.Rptr.3d 81, 117 P.3d 690.) Accordingly, Deborah's collateral attack on that order is not precluded.[ 7 ]

2. The Termination Order Was Impermissibly Based on the Parties' Agreement to Terminate Deborah's Parental Rights
A court cannot enter a judgment terminating parental rights based solely upon the parties' stipulation that the child's mother or father relinquishes those rights. (Kristine M. v. David P. (2006) 135 Cal.App.4th 783, 791, 37 Cal.Rptr.3d 748 ["the public policies favoring creation of a father-child relationship as a source of emotional and financial support ... trump any policy that would favor private ordering of parenthood after the birth of a child"]; Goodarzirad, supra, 185 Cal.App.3d at p. 1026, 230 Cal.Rptr. 203; In re Matthew S. (1988) 201 Cal.App.3d 315, 320, 247 Cal.Rptr. 100.)



[ 39 Cal.Rptr.3d 365, 372 ]

In Goodarzirad the trial court approved a stipulation in a divorce proceeding in which the husband relinquished his custody and visitation rights in return for the wife's waiver of her right to collect all child support, both delinquent amounts currently due and any future support. (Goodarzirad, supra, 185 Cal.App.3d at pp. 1023-1024, 230 Cal.Rptr. 203.) After the trial court denied the husband's subsequent motion to vacate the judgment terminating his parental rights, the Court of Appeal reversed, holding the stipulation attempted to divest the court of jurisdiction over the parties' minor children and was, therefore, void on public policy grounds. (Id. at pp. 1026-1027, 230 Cal.Rptr.203.) "`This continuing jurisdiction is vested in the court, and is to be exercised, in the interests of children. It is their right to have the court hear and determine all matters which concern their welfare and they cannot be deprived of this right by any agreement of their parents. The welfare of children is of interest to the state. The Legislature has fixed the period within which such powers may be exercised by the courts as that of the minority children, and it is not within the power of the court to fix a shorter period. In every decree of divorce which has provisions respecting the custody and support of children the law becomes a part thereof and the decree is subject to the further order of the court, whether or not it is so stated....' [Citation.] [¶] `While parents have a right to contract with each other as to the custody and control of their offspring and to stipulate away their respective parental rights [citation], this right so to stipulate is subject to the control of the court in which the matter affecting the child is pending, and the court is not required to award the custody in conformity with such stipulation.' [Citation.] `Where the welfare of children is involved as in divorce cases, parents cannot by contract so bind themselves as to foreclose the court from an inquiry as to what that welfare requires.'" (Id. at p. 1027, 230 Cal.Rptr. 203; accord, Kristine M. v. David P., supra, 135 Cal.App.4th at p. 789, 37 Cal.Rptr.3d 748 ["The [Uniform Parentage Act] protects the child's right to establish paternity and obtain support irrespective of the parent's intent to foreclose that right."]; see also In re Marriage of Lambe & Meehan (1995) 37 Cal.App.4th 388, 392, 44 Cal.Rptr.2d 641 [Goodarzirad and similar cases "convince us that the policy underlying stipulations involving minor children must be extended to adult indigent children"].)

Michael contends the public policy underlying Goodarzirad is inapplicable in this case because he did not stipulate to terminate Deborah's parental rights: He did not sign any document agreeing to the termination; he did not attend the hearing on Deborah's motion to terminate; and he did not have any advance notice Deborah intended to move to terminate her parental rights. Thus, Michael argues, there is no basis for the court's finding the termination hearing "was the functional equivalent of a stipulated proceeding/stipulated agreement between the parties."

Substantial evidence supports the court's finding the termination hearing was a stipulated proceeding.[ 8 ] "`A stipulation

[ 39 Cal.Rptr.3d 365, 373 ]

is "[a]n agreement between opposing counsel ... ordinarily entered into for the purpose of avoiding delay, trouble, or expense in the conduct of the action," [citation] and serves "to obviate need for proof or to narrow [the] range of litigable issues" [citation]' [Citation.] `"A stipulation in proper form is binding upon the parties if it is within the authority of the attorneys."'" (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 278, 26 Cal.Rptr.3d 831.) Although Michael did not attend the proceeding, clearly he was aware in advance of the October 17, 2001 hearing date that Deborah sought to terminate her parental rights,[ 9 ] he agreed with her decision and he authorized his counsel to attend the hearing and ensure the enforceability of the termination order.[ 10 ] At the outset of the hearing Michael's counsel stated, "We have not filed any opposition or paperwork. We do not oppose it. And I'm here to facilitate a record that will allow the motion to be not only granted but enforceable." In fact, Michael's counsel examined Deborah at the hearing on her motion, testing her resolve to terminate her rights. And significantly, when the court announced its findings, it characterized the hearing as a "stipulated proceeding."[ 11 ] Although Michael's counsel may not have realized the

[ 39 Cal.Rptr.3d 365, 374 ]

import of the court's characterization, he did not object it was inaccurate.

Additionally, the same, highly experienced retired superior court judge who had granted Deborah's motion to terminate in October 2001 heard Deborah's ex parte application in April 2004 and Michael's October 2004 motion to vacate. That judge was familiar with the history between the parties and fully understood the factual context in which the court had approved the parties' agreement. At the hearing on Michael's motion to vacate, the court explained, "It was an arranged deal from the beginning. The terms of the deal were in flux. They changed. Part of what was happening was that they were changed in a way that Ms. Rowe didn't like. This was not mom and dad saying, `Hey, let's have a family that we're going to raise.' When you start with an understanding of what went on between Ms. Rowe and Mr. Jackson, you then see what progressed to the October 2001 hearing, and what progressed to the October 2001 hearing was what I would have to find factually was a deemed stipulated hearing, and I do so find.... There was never a question in this judge's mind, in my mind, that I was going to have to make a factual decision based upon any evidence that would be produced at that hearing. There was never a question in my mind that I was going to have to take notes so that I could make sure that I found the right facts in order to support a decision. It was a preordained hearing. The ruling was preordained. How much of this had been worked out by [counsel] in advance, ... I don't know. I have no idea that is based in fact. I have a good idea based in reality and based in common sense, but I certainly can't say I have any hard evidence to support it. But there was never a single suspicion that this hearing was going to be anything other than what you might call a gimme. Ms. Rowe was going to come in. She was going to recite the things that she had to recite. [Michael's counsel], representing his client, made sure that everything he thought had to be there was going to be there. He didn't examine her in the sense of trying to have the court come up with a finding contrary to what Ms. Rowe wanted. They were both after the same thing. Ms. Rowe was there seeking termination, and Mr. Jackson was there seeking termination. There is no question about it. So I have to agree with [Ms. Rowe] that this was for all purposes a stipulated hearing, that this was a hearing based upon an agreement of the parties ... that Ms. Rowe's parental rights would be terminated, and we did it in a manner that was inconsistent with the law."

Substantial evidence supports the court's finding, "If there ever was a case where the parties stipulated to the termination of parental rights and nothing further was done, this was such a case."[ 12 ]

Even if Michael were correct, however, and he did not effectively stipulate with Deborah for the termination of her parental rights, the result would be no different if, based solely on Deborah's uncontested

[ 39 Cal.Rptr.3d 365, 375 ]

motion to terminate her parental rights, the trial court had granted the requested termination without first ordering an investigation of the children's circumstances by the Department of Children and Family Services or other appropriate agency as required by Family Code section 7850; considering appointment of counsel for the children pursuant to Family Code section 7861; and actually considering the long-term interest of the children involved. (See Kristine M. v. David P., supra, 135 Cal.App.4th at p. 791, 37 Cal.Rptr.3d 748 ["it is only under specified circumstances, and upon specific findings that include the interests of the child, that a court has authority to terminate parental rights"]; Neumann v. Melgar, supra, 121 Cal.App.4th at p. 162, 16 Cal.Rptr.3d 754 ["Statutes authorizing an action to free a child from parental custody and control are intended foremost to protect the child."]; see Fam.Code §§ 7800 ["The purpose of this part is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life."]; 7801 ["This part shall be liberally construed to serve and protect the interests and welfare of the child."].)

The fundamental problem in Goodarzirad, supra, 185 Cal.App.3d 1020, 230 Cal. Rptr. 203, was not simply that the trial court had entered an order based on the parties' agreement, but that it did so without itself evaluating what would serve the best interest and welfare of the parties' minor children. (Id. at pp. 1026, 1029, 230 Cal.Rptr. 203 ["[Former] Civil Code sections 232 et seq. contain very precise criteria and procedures which must be followed before parental custody and control can be terminated. It is clear that the Legislature wanted these specific procedures followed without deviation from the statutory scheme."; "The foremost interest in termination proceedings is to serve and protect the welfare and interests of the child. [Citation.] The fundamental rights of the parent and child should not be allowed to be tampered with by a confession of judgment which removes all determinations surrounding the propriety of the action."].) Indeed, should a mother and father stipulate to terminate one or both parents' rights, if the court follows all the procedures mandated by the Family Code, orders an independent investigation and then bases its findings of best interest and the order of termination on the investigator's report and other evidence presented at the hearing, it would be difficult to argue either considerations of policy or the analysis or holding of Goodarzirad authorize a collateral attack on the court's judgment. Simply put, it is the court's total abdication of its responsibilities, not the mere fact that the parties agree, that makes a stipulated judgment to terminate parental rights invalid.

3. Deborah's Challenge to the October 2001 Termination Order Is Not Barred by Judicial Estoppel
The doctrine of judicial estoppel has frequently been invoked to bar a party from contesting the validity of a judgment procured by that party. (Kristine H. v. Lisa R., supra, 37 Cal.4th at p. 162, 33 Cal.Rptr.3d 81, 117 P.3d 690; see In re Griffin, supra, 67 Cal.2d at p. 347, 62 Cal.Rptr. 1, 431 P.2d 625.) Whether estoppel will actually be applied depends on the significance of the procedural irregularities, whether the court's act violated a comprehensive statutory scheme and considerations of public policy. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 164, 16 Cal.Rptr.3d 754; Adoption of Matthew B., supra, 232 Cal.App.3d at p. 1269, 284 Cal.Rptr. 18.) We agree with Michael that Deborah's actions "`"... trifle with the

[ 39 Cal.Rptr.3d 365, 376 ]

courts"'" and to a limited extent also contravene public policy favoring speedy determinations of parentage and "the finality of paternity judgments." (See Adoption of Matthew B., at p. 1269, 284 Cal.Rptr. 18.) Nonetheless, compelling policy considerations militate against applying judicial estoppel here. (Ibid.) As explained by the Goodarzirad court, "The entire scheme underlying custody decrees is that primary consideration must be given to the welfare of children. [Citation.] The ultimate aim of the court is to serve the best interest and welfare of the minor children. [Citation.] Based on these strong public policy reasons, stipulations between parents involving the minor children which attempt to divest the court of jurisdiction are void and the doctrine of judicial estoppel does not apply." (Goodarzirad, supra, 185 Cal.App.3d at p. 1026, 230 Cal.Rptr. 203; see Neumann, at p. 164, 16 Cal.Rptr.3d 754 [refusing to apply principles of waiver or estoppel when trial court ignored procedural protections provided in Fam.Code, § 7800 et seq., which were "all calculated to promote the best interests of the affected children"].)

A central factor in determining whether to apply judicial estoppel to preclude a party from challenging an order based on an agreement determining parentage is whether the agreed-to order promotes or undermines this state's public policy "favoring that a child has two parents rather than one." (Kristine H. v. Lisa R., supra, 37 Cal.4th at p. 166, 33 Cal.Rptr.3d 81, 117 P.3d 690; see also Elisa B v. Superior Court (2005) 37 Cal.4th 108, 123, 33 Cal.Rptr.3d 46, 117 P.3d 660 ["By recognizing the value of determining paternity, the Legislature implicitly recognized the value of having two parents, rather than one, as a source of both emotional and financial support, especially when the obligation to support the child would otherwise fall to the public."]; Fam.Code, § 3020, subd. (b) [public policy of California is "to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship ... except where the contact would not be in the best interest of the child...."].) Thus, in Goodarzirad, at pages 1026, 230 Cal.Rptr. 203 to 1027, the stipulated judgment at issue would have deprived the child of one of his two parents; the Court of Appeal held judicial estoppel did not bar the husband's successful challenge to that order although he had previously agreed to it. In Kristine H. v. Lisa R., supra, at page 166, 33 Cal.Rptr.3d 81, 117 P.3d 690, in contrast, the Supreme Court held the biological mother of a child was estopped from attacking the validity of a two-year old stipulated judgment declaring that she and her lesbian partner were the joint legal parents of the child, which would have deprived the child of one of her two parents following the couple's separation.

Similarly, in Adoption of Matthew B., supra, 232 Cal.App.3d at page 1269, 284 Cal.Rptr. 18, the estoppel doctrine was applied to preclude a party (a surrogate) to a stipulated judgment of paternity, which had assured the child had two parents, from challenging the validity of the judgment. And in In re Marriage of Hinman, supra, 6 Cal.App.4th at page 716, 8 Cal.Rptr.2d 245, judicial estoppel was invoked to prevent a wife from attacking the validity of a judgment to which she had stipulated as part of dissolution proceedings in which she had listed five minor children of the marriage, including two children who had been born prior to the marriage and had been fathered by the wife's former husband. The parties had stipulated wife and husband would share joint physical and legal custody of all five children, and a judgment was entered. The wife's subsequent

[ 39 Cal.Rptr.3d 365, 377 ]

attempt to deprive the husband of all custody over the two children fathered by her former husband, based on the argument the stipulated judgment was in excess of the court's jurisdiction because the husband had no biological connection to the children, was rejected as barred by judicial estoppel: "Having initially invoked the court's power to determine custody, [the wife] then stipulated to a judgment giving [the husband] joint custody. A party who participates in or consents to a judgment which otherwise would be beyond the court's authority is precluded from attacking it collaterally, absent exceptional circumstances. [Citations.]" (Ibid.; see also Kristine M. v. David P., supra, 135 Cal.App.4th at p. 791, 37 Cal.Rptr.3d 748 [public policy favors creation of father-child relationship, as well as mother-child relationship, "as a source of emotional and financial support"].)

"In this case, as in any other child custody or paternity matter, the `ends of justice' are served when we fulfill our obligation to protect the best interests of the child." (Robert J. v. Leslie M., supra, 51 Cal.App.4th at p. 1647, 59 Cal.Rptr.2d 905 [doctrine of res judicata barred father's action against child's mother seeking declaration of father's nonpaternity notwithstanding father had stipulated to paternity].) Regardless of how objectionable it may be for Deborah to invoke the jurisdiction of the court, obtain the precise relief she requested, and now seek to reverse that action by claiming the court failed to inquire into the best interest of her children, the fact remains the trial court has candidly acknowledged it relied entirely on Deborah's now-recanted declaration and did not inquire on its own into the children's best interest when it entered its order permanently depriving the children of one of their two parents.

4. Because the Court Acted in Excess of its Jurisdiction in Entering the Termination Order, the Harmless Error Doctrine Is Inapplicable
Michael's final argument, based in substantial part on comments made by the trial court at the hearing on Deborah's ex parte application,[ 13 ] is that the court's failure to comply with the procedural requirements of the Family Code in October 2001 was at most harmless error because it is unlikely the court would have denied Deborah's request for termination of her parental rights even if it had ordered an independent investigation or considered appointment of counsel for the children.[ 14 ] It is generally true the existence of procedural error alone, even in a termination proceeding, is insufficient to set aside an order or judgment; the party challenging the order or judgment must also demonstrate the error was prejudicial, that is, that it is reasonably probable a result more favorable to that party would have

[ 39 Cal.Rptr.3d 365, 378 ]

been reached in the absence of the error. (Code Civ. Proc., § 475; In re Marriage of Goddard (2004) 33 Cal.4th 49, 56, 14 Cal.Rptr.3d 50, 90 P.3d 1209 ["the presumption in the California Constitution is that ... `... any error as to any matter of procedure' is subject to harmless error analysis and must have resulted in a `miscarriage of justice' in order for the judgment to be set aside"]; see generally Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069, 232 Cal.Rptr. 528, 728 P.2d 1163.)

This general rule, however, is inapplicable if the trial court has acted in excess of its jurisdiction in granting the relief being challenged: If jurisdictional error has occurred, the resulting judgment or order is "voidable and reversible on appeal even where, as here, it is clear from the record [that no prejudice resulted]." (In re Marriage of Goddard, supra, 33 Cal.4th at p. 54, 14 Cal.Rptr.3d 50, 90 P.3d 1209; see In re Jesusa V. (2004) 32 Cal.4th 588, 624, 10 Cal.Rptr.3d 205, 85 P.3d 2 ["We typically apply a harmless-error analysis when a statutory mandate is disobeyed except in a narrow category of circumstances when we deem the error reversible per se."].) Because the trial court's October 2001 termination order was an act in excess of its jurisdiction-that is, an act in violation of a clear restriction or limitation on the court's power to act and not merely an error of law (see In re Marriage of Goddard, at p. 57, 14 Cal.Rptr.3d 50, 90 P.3d 1209)-the termination order was properly voided without further inquiry into possible prejudice suffered by Deborah or the minor children affected by it.

DISPOSITION
The portion of the April 2, 2004 order invalidating the October 2001 termination of Deborah Rowe Jackson's parental rights and the October 21, 2004 order denying the motion to vacate the April 12, 2004 order are affirmed. Deborah Rowe Jackson is to recover her costs on appeal.

We concur: JOHNSON and WOODS, JJ.

tu sais ce qui m'étonne c'est qu'à la mort d'mj, elle ait pas voulu les récupérer, elle en avait parlé et pis d'un coup elle change d'avis, ça m'a mi la puce à l'oreille en me disant, peut etre qu'mj est toujours vivant, et c'est pour ça qu'elle n'a pas voulu les récupérer, enfin c'est ce que je pense

Maintenant que tu en parle.... C'est vrai ça au fait!

Résumé

En Octobre 1999 Deborah et Mikl étaient tjs mariés.
A l'époque, ils ont conclu une clause de jugement permettant à Mikl d'avoir la garde exclusive légale et physique de leurs deux enfants, Michael, Jr. et Paris.
Debbie a obtenu le droit de visite. Leur mariage a été dissout en avril 2000.
Environ six mois plus tard Debbie a décidé de cesser de rendre visite aux enfants car, selon elle, la visite "ne fonctionnait pas pour diverses raisons." (PEUT ETRE A T-ON EXERCE UNE PRESSION ET QUE C'EST POUR CELA QU'ELLE A PRIS LES THUNES???)

Debbie a accepté une modification de la décision antérieure de la garde des enfants renonçant à ses droits de visite.
En Octobre 2001 Debbie a déposé une motion visant à mettre fin à ses droits parentaux.
Elle a fait une déclaration et il a été noté dans la requête: «Michael a été un père merveilleux pour les enfants et je ne souhaite pas partager les responsabilités parentales avec Michael parce qu'il fait si bien sans moi ... Je veux lui donner à tout jamais tous les droits relatifs aux enfants, car je crois que c'est dans l'intérêt supérieur des enfants ». Deborah a aussi déclaré qu'elle comprenait bien les implications du fait de renoncer à ses droits parentaux.

MIKL n'était pas présent lors de l'audience mais son avocat a dit que MIKL ne s'opposait pas à la décision et qu'il était là juste pour "faciliter" l'éxécution de la requête

Debbie a été interrogée sous serment et a déclaré (en résumé..)

Qu'elle mettait fin à l'exercice de ses droits parentaux et qu'elle comprenait la signification de cette décision
Qu'elle avait déjà laissé les enfants mineurs à MIKL qui en aurait la garde exclusive pour une période d'1 an, que pendant ce temps , elle n'avait pas communiqué avec les petits et qu'elle estimait que c'était dans le plus grand interêt pour eux que ses droits parentaux prennent fin
La Cour estime qu'il y a des preuves claires et convaincantes pour résilier les droits parentaux de Debbie en vertu du Code de la Famille N°....


Deux ans plus tard (si j'ai capté!!!!) Debbie a fait une demande pour ontenir la garde TEMPORAIRE exclusivedes enfants en attendant la fin de l'expertise psychiatrique( demandée lors du fameux procès).
Elle a fait cette demande en raison des problèmes et des poursuites judiciaires suscités par le procès MAIS AUSSI PARCE QUE MIKL était en rapport étroit avec la N.O.I (Nation of Islam).
Debbie en fait a eu peur que les enfants ne soient maltraités (puisqu'ils sont juifs donc évidemment...)
si MIKL continuait à entretenir des relations étroites avec la N.O.I (voir post Nation Of Islam)

Mikl a contesté cette demande en mettant en exergue le fait qu'elle n'était pas fondée puisque Debbie avait renoncé à ses droits parentaux.

Bref, il y a eu des réunions à n'en plus finir et ce droit ne lui a pas été donné

J'AI EU UNE PANNE DE CHAUFFAGE C'EST POUR CETTE RAISON QUE JE SUIS A LA TRAINE , JE VOUS ENVOIE CECI ET CONTINUE MAIS COMME CA VOUS POUVEZ DEJA LIRE

BIZZ A TOUT DE SUITE

SUITE: DEBBIE Vs MIKL

si j'ai tout capté, le 16 septembre 2004 Debbie a fait valoir son droit de changer d'avis quant à ses droits parentaux parce que Michael ne l'avait pas stipulé (oufait une demande) par écrit...?????Elle s'est basée sur un cas de jurisprudence , le cas GOODARZIRAD

attention, ça se complique (mais c'est peut être moi qui pédale dans la semoule?!)

MIKL conteste la demande de Debbie en invoquant le fait que 1° Comme il n'était pas présent à l'audience portant sur son désir de renoncer à ses droits maternels, 2° comme il n'a signé aucun document portant sur la résiliation, 3° il n'a pas influence ou payer Debbie pour qu'elle cesse d'exercer ses droits parentaux DONC la jurisprudence du cas GOODARZIRAD est inapplicable car il n'y a aucune base pour que la Cour constate la résiliation de la demande de fin d'exercice des droits parentaux de Debbie...OUFTI! Compliqué tout ça

Il est attendu que même si MIKL n'a pas assisté , il a été averti de la demande de Debbie de mettre un terme à ses droits, il était d'accord avec la décision et il a autorisé son avocat à assister à l'audience et de garantir le caractère exécutoire de cette requête
(EXACT, Cf déclaration de son avocat 1ère partie du post)

Bref c'est long mais un juge qui a pris sa retraite mais qui s'était occupé du cas de demande de fin des droits parentaux de Debbie a déclaré que l'on voyait bien que tout était arrangé d'avance, Debbie répétait ce que l'on lui avait demandé de dire , que cette audition était jouée d'avance, que Debbie remplissait le rôle qu'on lui avait donné un point c'est tout...


Pour le reste , pleaase traduisez vous, c'est compliqué!!!!

Michael Jackson poursuivi en justice par le fils du roi de Bahreïn




jE VOUS METS UNE PIC DU SHEICK pour en revenir au truc avec Boris Becker vous voyez que l'intitulé de la photo ici est la date du jour où ça s'est passé etil n'y a pas une deuxième date!!!!!vous comprenez ce que je veux dire ou pas??????






18 NOVEMBRE 2008
PHOTOS: DR
TEXTE: AFP
Michael Jackson Neverland cheikh
6 Le chanteur, surnommé "The King of Pop", est attaqué en justice pour n'avoir pas honoré un contrat musical de 5,5 millions d'euros.
L'un des fils du roi de Bahreïn a entamé lundi devant la Haute Cour de Londres une procédure à l'encontre de Michael Jackson, auquel il reproche d'avoir rompu un accord prévoyant que la pop star enregistre un album pour rembourser l'argent qu'il lui avait avancé. Le cheikh Abdulla bin Hamad Al Khalifa affirme avoir avancé 7 millions de dollars (5,5 millions d'euros) au chanteur américain en contrepartie de la promesse de ce dernier de produire un disque, écrire une autobiographie et jouer dans une comédie musicale.

Michael Jackson, soutenu financièrement par le cheikh à partir de 2005, nie l'existence d'un quelconque accord et assure que l'argent perçu n'était qu'un "cadeau". Selon le récit de l'avocat du prince, Bankim Thanki, les deux hommes ont entretenu une "relation personnelle proche" lorsque Michael Jackson a effectué un séjour au Bahreïn en 2005, après avoir été acquitté au terme d'un long procès pour abus sexuels sur mineur. "Cheikh Abdulla a commencé à soutenir financièrement M. Jackson après 2005 quand il est devenu clair que M. Jackson avait de graves difficultés financières, à la grande surprise de cheikh Abdulla", a expliqué Bankim Thanki. Selon sa version des faits, des assistants de Michael Jackson ont d'abord demandé 35.000 dollars pour payer les charges du ranch californien du chanteur, puis ont réclamé 1 million de dollars en avril 2005. "Cheikh Abdulla a fait plusieurs autres paiements" au chanteur et même payé les frais de son procès, d'un montant de 2,2 millions de dollars, a précisé l'avocat.

Selon son avocat, l'intention du cheikh était de relancer la carrière musicale de la star, en produisant ses albums grâce à leur propre label. Le prince espérait ainsi sortir, au profit des sinistrés du tsunami de 2004, une chanson qu'il avait lui-même écrite et qui avait été enregistrée en 2005. Un enregistrement de cette chanson doit être diffusé devant le tribunal. "Il montre la qualité du talent d'écriture de cheikh Abdulla et celle de la voix de M. Jackson", a certifié Bankim Thanki. Ni le cheikh, ni le chanteur n'étaient présents lundi devant la Haute Cour, mais ce dernier pourrait témoigner par lien vidéo depuis les Etats-Unis, au cours de ce procès prévu pour durer douze jours.


http://next.liberation.fr/article/michael-jackson-poursuivi-en-justice-par-le-fils-du-roi-de-bahrein




Michael Jackson poursuivi par le fils du roi du Bahreïn 0 commentaire | Articles du même auteur | Envoyer à un ami | Imprimer l'article Publié le 19/11/2008 23:54 par Johnny Messy

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Photo : Michael Jackson

Michael Jackson est à nouveau poursuivi en justice. Il ne s'agit pas d'une nouvelle affaire sur les enfants mineurs. Le roi de la pop est poursuivi par le fils du roi du Bahreïn.

Le fils du roi du Bahreïn, surnommé le cheik Abdulla Bin Hamad Bin Isa Al-Khalifa, a intenté un procès à Londres contre le roi de la pop, Michael Jackson pour la rupture d'un contrat d'enregistrement exclusif d'un montant de 7 millions de dollars.

Le cheik aurait versé 7 millions de dollars à Michael Jackson comme avance sur deux albums : un spectacle sur scène et une autobiographie. Il aurait même construit un studio d'enregistrement au chanteur et lui aurait également donné une Rolls-Royce d'une valeur d'environ 275 000 dollars. Le roi de la pop, qui ne nie pas avoir touché cette somme, n'aurait pas respecté ses engagements.

Michael Jackson donne une version presque insolite de l'affaire. Il pensait que tous ces paiements étaient des "cadeaux" et qu'aucun projet ou contrat n'a jamais été finalisé. Des cadeaux de 7 millions de dollars ? Quelle chance ! Michael Jackson n'est pas à son premier coup, puisqu''l a avancé ces mêmes arguments en septembre 2006 en annonçant sa rupture avec Two Seas Records, le label de disque basé au Barheïn qu'il a cofondé avec Al-Khalifa.

Pour le fils du roi du Bahreïn, les 7 millions de dollars étaient qui devait lui être remboursée sur les bénéfices des entreprises projetées, et qu'il rendait tout simplement un service à son pote pour l'aider à le sortir de ses problèmes financiers.

Les associés improbables étaient jadis amis proches : en 2005, Jackson, ainsi que ses enfants et son entourage de conseillers, ont séjourné à la résidence du cheik au Bahreïn pendant environ six mois, lors de l'exil auto-imposé du chanteur à la suite de son acquittement des chefs d'accusation d'agression sexuelle sur enfants. Bien que l'affaire doive passer en justice à la Cour de Justice Royale de Londres cet après-midi, et d'ailleurs la presse britannique s'est réunie en masse pour attendre l'arrivée éventuelle de Jackson à la cour, les experts pensent que le duo très en vue trouvera un compromis à l'amiable et hors du tribunal.

http://www.continentalnews.fr/actualite/people,112/michael-jackson-poursuivi-par-le-fils-du-roi-du-bahrein,4905.html



jE SUPPOSE QUE TWO SEAS RECORDS C'est ceci: http://www.2seasrecords.com/


Michael Jackson Sails With Two SeasMichael Jackson Sails With Two Seas
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Here is an item from Billboard.com you should enjoy. Click on the link below to check it out.

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Michael Jackson has taken a step towards a return to his musical career by signing an exclusive recording agreement with Bahrain-based Two Seas Records. The label is a joint venture between the embattled pop star and Abdulla Hamad Al-Khalifa.

Jackson, who has been in Bahrain since shortly after his June 2005 acquittal on child molestation charges, is said to be working on new material. A new album is tentatively scheduled for release in "late 2007," according to a statement.

"I am incredibly excited about my new venture and I am enjoying being back in the studio making music," Jackson says.

U.K. record executive Guy Holmes has been tapped as CEO of the Two Seas label and will also be tasked with managing Jackson's other business interests.

Holmes will also remain chairman of Gut Records, which last spring scored a massive U.K. hit with Crazy Frog's version of "Axel F," essentially a popular ringtone attached to a manic animated character. Gut has also released music from Tears For Fears, the Wildhearts, Sparks, Fannypack and Aswad.

Holmes' Gut label is already promoting an association with Jackson, as a digital player on its Web site is streaming a Hi Tack remix of his 1983 hit "Say Say Say," subtitled "Waiting for U."

In his earliest solo years, Jackson recorded for Motown, which had been home to his sibling group, the Jackson 5. The group shifted to Epic in the mid-1970s and in 1979 released Jackson's breakout solo album, "Off the Wall." His international superstardom was solidified with subsequent albums "Thriller" (1982), "Bad" (1987) and "Dangerous" (1992).

His final studio set for the Epic was 2001's "Invincible," which debuted at No. 1 on The Billboard 200 and has sold more than 2 million copies in the United States alone, according to Nielsen Soundscan.

Jackson accused the label of poor promotion, which led to a public spat with label parent Sony and its then president, Tommy Mottola. Epic has continued to mine the artist's career with a string of releases since then.

Holmes appointment to effectively manage Jackson's career comes on the heels of reports last week that Jackson, in a move to stave off insolvency, has reached a deal with creditors to refinance more than $200 million in loans secured by his stake in the Beatles' song catalog.

Jackson had been living off his 50% share of the Sony/ATV Music publishing catalog, which includes more than 250 copyrights from the Beatles. Jackson purchased ATV in 1985. Ten years later, in a deal orchestrated by his longtime attorney John Branca, Jackson merged ATV with Sony's music publishing division; the entire catalog is valued at around $1 billion.







Two Seas Records


Two Seas Records is a record label based in Bahrain. Guy Holmes, is named as CEO of Two Seas Records. Holmes also remains chairman of London-based independent record label Gut Records.

On April 18, 2006, Michael Jackson, seeking to continue his singing career after being acquitted on sex abuse charges, signed an exclusive recording contract with Two Seas Records to record a new album set for release in 2007.

In September 2006, Jackson's publicist, Raymone Bain, announced that Michael Jackson has left 2Seas. She says Jackson will be recording his comeback album on his newly formed business/record label, The Michael Jackson Company, Inc. However Guy Holmes says Jackson never finalized a deal with the label in the first place.
See Also
•Brooke Hogan Demo CD
•MJJ Music
•Reverbose Records
•Stephen D Duffy
•The Michael Jackson Company

http://wikibin.org/articles/two-seas-records.html


Message de MIKL :


lundi, mai 01, 2006
My Deal With Two Seas Records In Bahrain
Well, You Might know but I am going to Start Recording a New Album with
2 Seas Records. I will no longer be with Epic and Sony Records. My
New Album Is Hopefully Going To Be Released Late 2007. Well Its Just A Reminder
If my Fans Didn't Know. Well Hope everyone Enjoys!


Love,
Michael


lundi, décembre 17, 2007
New News regarding Mr. Jackson
Humeur actuelle : agité
If you've all heard, Mr. Jackson has numerous plans for the future. Including a New Album, and much more in which we cannot reveil. His New Album's release date has obviously been postponed until Next year. We all know he is sorry for the Inconvience. He has had 2 New Photoshoots this year, Luomo Vouge and Ebony-Jet Magazines.

Rumors of new Tours, are just rumors and have not been finalized by Mr. Jackson. This may happen in the future, but who knows. MJJ plans to have a SPECTACULAR comeback soon, and we all hope you stick around. He is gonna shock the world once again. In February of Next year, Thriller will be celebrating its 25th Anniversary with a Deluxe Special Edition Album. Containing All the Album's Tracks, 4 Rare Recordings of The Thriller Era, 3 Remixes containing of: The Girl Is Mine 2008 Remix feat. will.i.am, Billie Jean Megamix feat. Michael Jackson and Kanye West, and Wanna Be Startin Somethin' 2008 Remix feat. Akon. It also features, the fabulous Thriller Outtake "For All Time" recently Remastered and Re-Recorded by Michael Jackson This Year! Mr. Jackson has SO MANY PLANS its unbleiveble. Expect the Unexpected.

BON C'EST SPACE C'EST SOI DISANT MIKL OU QQU'UN QUI RAPPORTAIT OU SE FAISAIT PASSER POUR MIKL EN 2006 ET 2007 QUI FAISAIT PARAITRE CES MESSAGES pfffffff, QUEL BAZAR!!!!!!

http://blogs.myspace.com/index.cfm?fuseaction=blog.view&friendId=72535256&blogId=115974314


twoseasrecords.co.uk

TwoSeasRecords.
Is the name of the new record label created by Michael Jackson.

Since being acquitted of child molestation charges, the singer has left his contract with Sony and has created his own label. Rumours are of a new album perhaps as early as the start of 2007.

Though undoubtedly past his peak, Michael will hope that he can recapture some of his previous glory and that the public will not hold the child sex charges against him. It is unlikey his career would withstand any further (false) accusations.


BBC.co.uk
Jackson to make album in Bahrain April 19, 2006

Singer Michael Jackson is to record his first new album since 2001 on a label based in the Gulf state of Bahrain.

Jackson, who has lived in the Middle East since being acquitted of child abuse charges, is expected to release the new record next year.



THIS DOMAIN IS FOR SALE
PLEASE CONTACT;
searkind@yahoo.com

http://www.twoseasrecords.co.uk/

Comment voir l'adresse de ce domaine???????