FEB 2ND COURT TRANSCRIPTS. J VS A

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

HON. YVETTE M. PALAZUELOS, JUDGE

KATHERINE JACKSON, )

PLAINTIFF(S),

AEG LIVE, LLC; ANSCHUTZ )

ENTERTAINMENT GROUP, INC. ET.

AL.

DEFENDANT(S). )

WEDNESDAY, FEBRUARY 2, 2011

APPEARANCES:

FOR THE PLAINTIFFS: PANISH, SHEA & BOYLE, LLP

BY: KEVIN R. BOYLE

ATTORNEY AT LAW

11111 SANTA MONICA BOULEVARD

SUITE 700

LOS ANGELES, CA 90025

LAW OFFICE OF K.C. MAXWELL

BY: K.C. MAXWELL

ATTORNEY AT LAW

115 SANSOME STREET, SUITE 1204

SAN FRANCISCO, CA 94104

FOR THE DEFENDANTS O’MELVENY & MYERS, LLP

AEG, ET. AL.: BY: MARVIN S. PUTNAM

AND JESSICA L. STEBBINS

ATTORNEYS AT LAW

1999 AVENUE OF THE STARS, SUITE 700

LOS ANGELES, CA 90067

CASE NAME: KATHERINE JACKSON

VERSUS

AEG, LIVE, LLC., ET. AL.

HON. YVETTE M. PALAZUELOS, JUDGE

LOS ANGELES, CALIFORNIA WEDNESDAY, FEBRUARY 2, 2011

APPEARANCE: SEE TITLE PAGE,

TIME: A.M. SESSION

THE COURT: JACKSON VERSUS AEG, BC 445597.

MR. BOYLE: GOOD MORNING, YOUR HONOR.KEVIN BOYLE OF PANISH, SHEA AND BOYLE FOR THE JACKSON PLAINTIFFS. MS. MAXWELL: K.C. MAXWELL OF LAW OFFICES OF K.C. MAXWELL FOR THE PLAINTIFFS.

THE COURT: GOOD MORNING.

MR. PUTNAM: GOOD MORNING, YOUR HONOR. MARVIN PUTNAM OF O’MELVENY AND MYERS ON BEHALF OF THE DEFENDANTS. MS. STEBBINS: JESSICA STEBBINS OF O’MELVENY AND MYERS ON BEHALF OF DEFENDANTS.

THE COURT: GOOD MORNING. THE DEFENDANTS HAVE DEMURRED TO THE COMPLAINT,AND MY TENTATIVE WAS TO SUSTAIN IT AS TO THE THIRD AND FOURTH CAUSES OF ACTION WITH 20 DAYS LEAVE TO AMEND, OVERRULE THE BALANCE OF IT. DID YOU HAVE AN OPPORTUNITY TO READ THE WRITTEN TENTATIVE?

MR. BOYLE: YES, WE DID, YOUR HONOR.

THE COURT: OKAY.DID ANYBODY WANT TO ADDRESS THE COURT?

MR. PUTNAM: I WOULD LIKE TO, YOUR HONOR, IF POSSIBLE.

THE COURT: ALL RIGHT.

MR. PUTNAM: A NUMBER OF POINTS, YOUR HONOR, IF I MAY,AND I WILL DO THEM BRIEFLY. I HAVE WATCHED YOU THIS MORNING, SO I KNOW YOU WOULD LIKE IT BRIEFLY. FIRST, YOUR HONOR, AS A RESULT OF THIS BEING DETERMINED TO BE A WRONGFUL DEATH ACTION, THE PUNITIVE DAMAGES MUST BE STRICKEN. PUNITIVE DAMAGES ARE NOT AVAILABLE IN A WRONGFUL DEATH ACTION. THAT’S ONE OF THE THINGS THAT’S NOT AT ALL WITHIN YOUR TENTATIVE, YOUR HONOR, SO I THINK IT’S AN ISSUE OF WHETHER IT BE THERE.THE COURT: THERE WAS A MOTION TO STRIKE THAT I DIDN’T ADDRESS?

MR. PUTNAM: IT WAS SEPARATELY WITHIN IT, YOUR HONOR.IT WAS WITHIN THE DEMURRER, AND THEY SHOULD BE STRICKEN BECAUSE IF THAT IS THE CASE THAT IN FACT IT IS NOT, THEY MUST BE STRICKEN FROM THE COMPLAINT.

THE COURT: USUALLY IT’S A MOTION TO STRIKE. IF YOU DIDN’T MOVE TO STRIKE, THEN THAT’S WHY IT’S NOT ADDRESSED.

MR. PUTNAM: WELL, YOUR HONOR — SORRY.

THE COURT: MAYBE THEY CAN STIPULATE TO IT. I DON’T KNOW.

MR. BOYLE: I CAN BRIEFLY RESPOND.ONE, PUNITIVES ACTUALLY ARE AVAILABLE IN WRONGFUL DEATH ACTIONS. I HAVE DONE IT A MILLION TIMES IN CASES. HOWEVER, THEY ARE ONLY RECOVERABLE TO THE ESTATE OF THE DECEDENT, AND THE ESTATE IS NOT A PARTY HERE, SO I AGREE THAT PUNITIVES SHOULD NOT BE PART OF THE COMPLAINT. AND I THINK WE CAN HANDLE THAT ON THE RE-PLEADING.

THE COURT: OKAY.

MR. PUTNAM: ALL RIGHT, YOUR HONOR.

THE COURT: THAT ISSUE IS DONE.

MR. PUTNAM: THANK YOU, YOUR HONOR. SECOND, YOUR HONOR, OBVIOUSLY ONE OF THE FUNDAMENTAL ASPECTS OF YOUR TENTATIVE IS THE IDEA THAT YOU’RE NOT GOING TO INCORPORATE THE TWO AGREEMENTS BY REFERENCE OR BY JUDICIAL NOTICE, AND I WOULD LIKE TO ADDRESS   IT VERY BRIEFLY, YOUR HONOR, IF I MAY.

THE COURT: OKAY.

MR. PUTNAM: AS I THINK IT’S VERY CLEAR, THEY RELY

UPON THESE COM- — EXCUSE ME, THESE AGREEMENTS THROUGHOUT IN

PARAGRAPH 7, 21, 23, 24, 41, 42, 48, 54, 67, 78, 97 AND 100.

THE COURT: RIGHT. SO EITHER THEY CAN ATTACH THE

AGREEMENTS OR THEY CAN PLEAD MATERIAL TERMS. SO THEY CHOSE

TO PLEAD MATERIAL TERMS RATHER THAN ATTACH THE AGREEMENT.

MR. PUTNAM: YES, YOUR HONOR.

BUT IN THE CASES WE CITED, BOTH, COHEN, WHICH IS

147 CAL.APP 3RD AT 327 TO -28, AS WELL AS ASCHERMAN, WHICH

IS 183 CAL.APP 3RD 307 AT 310 THROUGH -11 HAS MADE CLEAR, PARTICULARLY ON DEMURRER, WHEN SUCH OSTENSIVE REFERENCE IS MADE TO DOCUMENTS AND WHERE THEY ARE CLEARLY RELIED UPON,WHICH IS THE CASE HERE, YOUR HONOR — EVEN THE TENTATIVE ADMITS THEY ARE RELIED UPON BECAUSE IT SAYS THROUGHOUT THE

IDEA THAT THEY SAY THERE IS A CONTRACTUAL OBLIGATION THAT

AROSE AND THEN RESULTS IN THE DUTY.

HERE, WHAT IS BEING PERMITTED AND WHAT THOSE

OTHER COURTS HAVE NOT PERMITTED IS FOR ONE TO HAVE IT BOTH

WAYS. TO SAY THAT I’M GOING TO HAVE ALL OF THESE THINGS,

BUT I’M NOT GOING TO INCLUDE IT WITHIN THE COMPLAINT. I’M

JUST GOING TO REFERENCE IT THROUGHOUT — AND LET’S BE CLEAR

WHAT THEY REFERENCE. IT ISN’T JUST THE TERMS. THEY

CONSTANTLY REFER TO IT AS A WRITTEN AGREEMENT THAT ACTUALLY

PUTS DOWN INTO WORDS WHAT THE UNDERLYING AGREEMENT WAS.

THEY SAY THAT VERY CLEARLY. ONE ONLY NEED TO

LOOK AT PARAGRAPH 48 TO SEE IT’S VERY CLEAR AS TO WHAT

THEY’RE SAYING. SO, HERE, YOUR HONOR, I THINK IT WOULD BE

APPROPRIATE FOR THEM NOT TO HAVE IT BOTH WAYS. BUT EVEN —

THE COURT: LET ME ASK YOU THIS: LET’S ASSUME I TOOK

JUDICIAL NOTICE OF IT. WHAT YOU WANT ME TO TAKE JUDICIAL

NOTICE OF IS THE FACT THAT, IN THE CONTRACT, DR. MURRAY IS

LABELED AS AN INDEPENDENT CONTRACTOR, CORRECT; THAT’S SORT

OF THE THRUST HERE, THE ARGUMENT.

MR. PUTNAM: I THINK THE THRUST OF IT ACTUALLY, YOUR

HONOR, IS WHAT IS MORE CLEAR — AND ACTUALLY THAT IS VERY

IMPORTANT, BECAUSE IT’S THE BECK CASE WE CITE THROUGHOUT,

WHICH IS THE IDEA, YOUR HONOR, THAT IF IT EXISTS — IF THIS

DOCUMENT IS THE AGREEMENT OF THE PARTIES, THEN — WHICH,

CLEARLY, IT IS BECAUSE THEY SAY IT IS, AND THAT’S WHAT WE

HAVE TO RELY ON; WHAT HAPPENS IS YOU HAVE TO HAVE THE

ARTIST’S CONSENT.

AND IN THIS INSTANCE, IT SAID THAT MICHAEL

JACKSON’S SIGNATURE HAD TO BE ON THIS DOCUMENT, OTHERWISE

THERE WAS NO AGREEMENT BETWEEN THE PARTIES, WHICH IS

PRECISELY THE BECK CASE WHERE DEMURRER IS GRANTED, WHERE THE

PLAINTIFF THEREIN — THERE IS A SIGNATURE —

THE COURT: THERE’S NO WRITTEN AGREEMENT OR NO ORAL

AGREEMENT?

MR. PUTNAM: THEY SAY THAT THIS WRITTEN AGREEMENT IS A

MEMORIALIZATION OF THE AGREEMENT BETWEEN THE PARTIES. THAT

IS THEIR ADMISSION IN THEIR COMPLAINT. AND WHAT THAT

MEMORIALIZES IS AN AGREEMENT THAT SAYS: UNLESS MICHAEL

JACKSON SIGNS OFF ON THIS, UNLESS HE SAYS THE SAME, THERE IS

NO AGREEMENT BETWEEN THE PARTIES.

AND IF THERE’S NO AGREEMENT BETWEEN THE PARTIES,

WHICH IS PRECISELY WHAT THIS IS — AND THEY’RE TRYING TO

HAVE IT BOTH WAYS — THEN CLEARLY, NO SUCH DUTIES CAN ARISE

AND CLEARLY THERE CAN BE NO RESPONDEAT SUPERIOR OR NEGLIGENT

UNDERTAKING.

THE COURT: OKAY.

MR. BOYLE: MAY I RESPOND?

THE COURT: YES.

I KNOW THERE’S OTHER THINGS YOU WANT SO SAY.

MR. PUTNAM: I KNOW. IT’S EASIER THIS WAY.

THE COURT: I KNOW YOU HAVE OTHER THINGS TO SAY.

MR. BOYLE: THANK YOU.

AS AN INITIAL MATTER, I THINK THE COURT GOT IT

EXACTLY RIGHT. THESE ARE SIMPLY NOT — EITHER THE AEG

JACKSON CONTRACT OR AEG MURRAY CONTRACT ARE NOT MATTERS THAT

ARE JUDICIALLY NOTICEABLE, SO I THINK THAT’S A CLEAR POINT.

IF WE WANTED TO INCORPORATE THEM BY REFERENCE,

WE WOULD HAVE SAID “WE INCORPORATE BY REFERENCE” OR ATTACHED

THEM.

NOW, WE DIDN’T HAVE AUTHENTICATED COPIES OF

THESE DOCUMENTS UNTIL THE DEFENSE ATTACHED THEM TO THEIR

DEMURRER WITH THE DECLARATION THAT THESE ARE THE AUTHENTIC

DOCUMENTS. WE WERE PLEADING ON INFORMATION AND BELIEF.

THE PLAINTIFFS ARE IN SOMEWHAT OF A QUAGMIRE IN

THESE KIND OF CASES ESPECIALLY WITH THE INCREASE

REQUIREMENTS THAT WE PLEAD SPECIFIC FACTS.

SO WITH THE INFORMATION AND BELIEF WE HAD, WE

PLED SPECIFIC FACTS FROM WHAT WE THOUGHT WERE THE DOCUMENTS.

NOW WE KNOW THESE ARE THE DOCUMENTS. THAT SAID, THIS IS NOT

A BREACH OF CONTRACT CASE, SO THE CONTRACTS WERE NOT —

DON’T NEED TO BE ATTACHED TO THE COMPLAINT BECAUSE WE’RE NOT

SAYING THEY’RE BREACHED. WE ARE SAYING THE CONTRACTS ARE

EVIDENCE OF DUTIES THAT AROSE AND SO, THEREFORE, THERE’S NO

REASON THEY SHOULD HAVE BEEN DETACHED TO THE COMPLAINT.

YOU KNOW, THIS IS A TORT CASE AND IT’S NOT A

CONTRACT CASE. SO THERE’S REALLY NO REASON WE WOULD HAVE

NEEDED TO. WE DIDN’T SAY “INCORPORATED BY REFERENCE.”

THE COURT: WELL, THERE’S AN ALLEGATION THAT AEG PAID

DR. MURRAY $150,000 A MONTH, CORRECT?

SO IF THERE’S NO WRITTEN AGREEMENT — I MEAN,

ACCEPTING THE ALLEGATIONS OF THE COMPLAINT AS TRUE, IF

THERE’S NO AGREEMENT, WHY IS AEG PAYING DR. MURRAY $150,000

A MONTH?

WHAT I’M SAYING IS THAT, YOU KNOW, THE FACTS AS

ALLEGED IN THE COMPLAINT — I MEAN, I DON’T THINK THE

ATTACHMENT OF THE CONTRACT IS GOING TO CHANGE THE RULING ON

THE DEMURRER BECAUSE OF THE ALLEGATIONS.

AGAIN, IT’S JUST ACCEPTING THE ALLEGATIONS OF

THE COMPLAINT AS TRUE, RIGHT?

MR. PUTNAM: WELL, AS — I KNOW WE’RE GETTING THERE

LATER.

THE COURT: OKAY.

MR. PUTNAM: THEY DID NOT IN FACT PAY $150,000 A

MONTH, BUT I UNDERSTAND ON DEMURRER —

THE COURT: THAT’S THE ALLEGATION.

MR. PUTNAM: THESE ARE FALSE ALLEGATIONS.

I WOULD ALSO LIKE TO NOTE — BECAUSE IT’S

IMPORTANT FOR THE RECORD AS WELL — THAT WHILE PLAINTIFFS’

COUNSEL SAYS THEY DID NOT HAVE COPIES OF THIS, I KNOW FOR A

FACT, SINCE THEY WERE PROVIDED TO HIS CLIENT THAT — AT

LEAST THE AGREEMENT WITH MICHAEL JACKSON, THE JANUARY 26,

2009 AGREEMENT, IS IN YOUR CLIENT’S POSSESSION, SO YOU MIGHT

WANT TO BE AWARE OF THAT. WE ARE NOT THE FIRST PERSON TO

HAVE PROVIDED IT HERE.

ALL OF THAT SAID, YOUR HONOR, WHAT IS RELEVANT

HERE IS NOT DISPUTED TERMS. I UNDERSTAND THE IDEA OF NOT

TAKING JUDICIAL NOTICE. THE TERMS ARE IN DISPUTE. I GET

THAT IDEA, OKAY. THE TERMS ARE NOT HERE IN DISPUTE,

HOWEVER, YOUR HONOR. THAT’S THE IMPORTANT NOTICE HERE.

THERE’S NOTHING IN DISPUTE HERE TO WHAT THEY’RE GOING TO.

BUT IT’S STATED HERE, CLEARLY, THAT THE ARTIST

MUST AGREE OR THERE IS NO AGREEMENT BETWEEN THESE ENTITES

AND THERE IS NO SIGNATURE OF THE ARTIST. THEREFORE, THERE

CANNOT BE AN AGREEMENT BETWEEN THE PARTIES.

I WOULD EVEN ARGUE, YOUR HONOR, THAT IF YOU LOOK

AT IT, WE ACTUALLY SHOULD WIN ON DEMURRER EITHER WAY. ON

ONE LEVEL, THERE’S NO AGREEMENT BECAUSE MR. JACKSON HAS NOT

SIGNED OR, ON THE OTHER SIDE, IF THERE IS AN AGREEMENT, THEN

IT WAS NOT AN EMPLOYMENT AGREEMENT BECAUSE IT MADE CLEAR

WITH THE AGREEMENT BETWEEN THE PARTIES. THEREFORE, IN

EITHER INSTANCE, THEREBY AGAIN, GOING TO THE IDEA THAT WE

ARE NOT DISPUTING THE TERMS, WE SHOULD BE ABLE TO WIN ON

DEMURRER AS TO ANYTHING THAT ARISES OSTENSIBLY OUT OF THE

CONTRACTUAL AGREEMENT BETWEEN THE PARTIES.

THE COURT: CONCERNING THE SECOND CLAIM ABOUT WE WIN

BECAUSE THE TERMS DESCRIBE DR. MURRAY AS AN INDEPENDENT

CONTRACTOR — THAT’S THE WAY I UNDERSTOOD THE ARGUMENT; AND

THE PLAINTIFFS HAVE ALLEGED THAT HE WAS AN EMPLOYEE. THE

PROBLEM IS PARTIES CAN CONTRACT THAT SOMEBODY IS AN

INDEPENDENT CONTRACTOR, BUT THE REALITY IS THAT THE FACTS

MAY BEAR OUT THAT HE’S AN EMPLOYEE AND THE TERMS OF THE

CONTRACT AREN’T GOING TO BE DISPOSITIVE OF THAT

CHARACTERIZATION, AND THAT’S TRUE IN THE LABOR CASES.

MR. PUTNAM: I UNDERSTAND, YOUR HONOR.

THE COURT: ALL RIGHT.

IN LABOR CASES, AN EMPLOYER CAN LABEL THEIR

EMPLOYEES AS INDEPENDENT CONTRACTORS, BUT FOR TAX PURPOSES

OR PROTECTION OF LABOR CODE, THEY’RE NOT INDEPENDENT

CONTRACTORS. SO THAT LABEL IN AND OF ITSELF IS NOT GOING TO

BE DISPOSITIVE, SO — BUT THAT GOES BACK TO THE —

MR. PUTNAM: I UNDERSTAND WHAT YOU’RE SAYING, YOURHONOR.

THE COURT: — DISPUTE CONCERNING TERMS.

MR. PUTNAM: I ALSO UNDERSTAND I’M NOT SUPPOSED TO

EVER QUESTION ABOUT LABOR ISSUES, SO I WON’T.

I GET THAT IDEA.

LET ME GO INTO MY NEXT POINT, YOUR HONOR.

MR. BOYLE: JUST VERY BRIEFLY.

I AGREE WITH WHAT YOUR HONOR SAID ABOUT THE

CONTRACT TERM. THERE’S THE RECENT CASE, NARAYAN CASE, WHICH

SAYS A CLAUSE IN A CONTRACT CLAIMING THE ALLEGED EMPLOYEE AS

AN INDEPENDENT CONTRACTOR IS NOT EVEN TO BE CONSIDERED BY

THE COURT. BUT, ALSO, AS THE COURT POINTED OUT —

THE COURT: YOU MEAN THE COURT CAN’T EVEN CONSIDER IT

AS A FACTOR?

MR. BOYLE: YES.

THE COURT: IT MIGHT BE ONE FACTOR, BUT —

MR. BOYLE: I THINK THERE’S A RECENT CASE THAT — I’M

NOT EXACTLY SURE BUT, REGARDLESS, AS THE COURT ALREADY

POINTED OUT, THE COMPLAINT ALSO ALLEGES THAT DR. MURRAY WAS

OPERATING UNDER AN ORAL AGREEMENT.

THE COURT: RIGHT.

MR. BOYLE: AND THIS IS A DEMURRER. WE DIDN’T NEED TO

PUT FORTH ALL OF OUR EVIDENCE. WE HAVE EVIDENCE OF THAT.

AND THIS CONTRACT ITSELF IS EVIDENCE THAT THERE

WAS OPERATION UNDER AN ORAL AGREEMENT. FOR EXAMPLE, I KNOW

THE CONTRACT IS NOT PART OF THIS DEMURRER, BUT THE CONTRACT

SAYS: IT’S FOR THE PERIOD OF MAY 1ST FORWARD.

 

MICHAEL JACKSON DIED ON JUNE 25TH, SO WE BELIEVE

THAT’S EVIDENCE THAT AEG KNEW THAT DR. MURRAY WAS WORKING ON

MICHAEL JACKSON AT THEIR BEHALF AS FAR BACK AS MAY 1ST, SO

IT’S ALL ABOUT EVIDENCE, AND WE ALLEGE THE ORAL CONTRACT.

AND I COMPLETELY AGREE WITH THE COURT’S RULING

ON THIS.

MR. PUTNAM: I WILL SAY THREE THINGS IN RESPONSE TO

THAT, YOUR HONOR. IT’S IMPORTANT TO RESPOND IN TERMS OF THE

IMPORTANCE OF CORRECTING THE RECORD.

ONE OF WHICH YOUR HONOR, THIS IS, A, PRECISELY

WHAT I’M TALKING ABOUT. THEY SEEK TO HAVE IT BOTH WAYS,

RELY UPON A CONTRACT, CITE TO THE CONTRACT, GO TO THE

CONTRACT, WHICH IS PRECISELY WHY THE CASE LAW SAYS THAT IS

AN INCORPORATION BY REFERENCE OR WARRANTS JUDICIAL NOTICE BY

REFERENCE. THAT IS WHAT THE CASES WE CITE TO SAY. THAT’S

PRECISELY WHAT HAPPENS BOTH WITHIN THE COMPLAINT AND WHAT’S

HAPPENING HERE TODAY.

SECOND, THIS WOULD BE A DISPUTED MATTER OF FACT

AS TO WHAT THE TERM WAS BECAUSE IF YOU LOOK AT THE ACTUAL

AGREEMENT, THERE ARE TWO DIFFERENT TERMS THAT IT SAYS IT

OPERATES UNDER. ONE SAYS MAY 1ST, WHICH HE NOTES, BUT OTHER

THE SAYS: IT DOES NOT COME INTO OPERATION UNTIL JULY 13TH,

AND THEN GOES ON UNTIL THE END OF THE CALENDAR YEAR.

SO I THINK IT’S IMPORTANT, FOR THE RECORD, TO

NOTE THAT WERE WE TO INCORPORATE THIS, THERE ARE TWO

DIFFERENT REFERENCES AS TO WHAT IT IS.

THE COURT: ISN’T THERE A REFERENCE THOUGH OF GOING

BACK TO THE $150,000 A MONTH. THERE IS AN ALLEGATION IN THERE

COMPLAINT THAT IN THE MONTH OF MAY, DR. MURRAY MADE A DEMAND

FOR PAYMENT FROM AEG AND THAT AEG IN FACT PAID $150,000.

I KNOW YOU’RE DISPUTING SOME OF THESE FACTS BUT,

AGAIN, JUST FOR PURPOSES OF DEMURRER, ACCEPTING THE

ALLEGATIONS AS TRUE, THAT WOULD SEEM TO GIVE RISE TO A

FINDING THAT EVEN AN ORAL CONTRACT, POSSIBLY THE WRITTEN

CONTRACT, WERE IN EFFECT.

MR. PUTNAM: OKAY.

THE COURT: BUT —

MR. PUTNAM: OKAY, YOUR HONOR.

ALL RIGHT.

THE COURT: BUT IF YOU HAVE FURTHER —

MR. PUTNAM: GOING ON FROM THERE AND, AS WE NOTE

THROUGH OUR PAPERS, YOUR HONOR, IRRESPECTIVE OF THIS —

IRRESPECTIVE OF SUCH A RULING, THE FIRST FOUR CAUSES OF

ACTION — AND I’M NOT GOING TO ADDRESS THREE AND FOUR.

DON’T WORRY. BRIEFLY.

NONETHELESS, DEMURRER SHOULD BE GRANTED. WHY IS

THAT? LET ME DEAL WITH THE FIRST ONE.

THE COURT: SORRY. WHICH CAUSE OF ACTION ARE YOU —

MR. PUTNAM: RIGHT NOW I’M DEALING WITH THE FIRST

CAUSE OF ACTION.

THE COURT: THE FIRST.

MR. PUTNAM: IT’S DIFFICULT TO SAY WHAT PRECISELY THAT

IS SINCE THE COMPLAINT IS GROSSLY IMPRECISE AS TO WHAT IT

IS.

THE COURT: THREE DIFFERENT THEORIES ALLEGED IN THERE.

MR. PUTNAM: ULTIMATELY IT’S THREE. I WOULD ARGUE

WITHIN THE COMPLAINT ITSELF, THERE ARE NINE, WHICH WE TRY TO

ADDRESS IN THE DEMURRER, THEN THEY COME BACK WITH THREE IN

THE END.

I WOULD SAY, FOR EACH OF THOSE, IT’S REALLY EASY

TO DO THIS BECAUSE WHAT IT IS, YOUR HONOR, ULTIMATELY IT IS

NOT AN UNDERTAKING, AND THAT IS CLEAR. WHAT IT IS PRECISELY

HERE, YOUR HONOR, IS NEGLIGENT SUPERVISION OR HIRING OR

RESPONDENT SUPERIOR AND FOR VICARIOUS LIABILITY. IT IS VERY

CLEAR. AND THE CASE LAW IS CLEAR, YOU CAN’T DO BOTH IF IT’S

ONLY ONE.

WHAT THEY SAY HERE IS THAT WE NEGLIGENTLY HIRED

DR. MURRAY. THAT IS A SUPERVISION OF HIRING CLAIM AND/OR

DR. MURRAY ACTED IN A NEGLIGENT MANNER. THEREFORE, THAT

WOULD BE RESPONDENT SUPERIOR, VICARIOUS LIABILITY. THAT

GOES TO THE SECOND AND FIFTH CAUSE OF ACTION AND SHOWS THE

FIRST SHOULD NOT EXIST.

NOW WHAT WE DO, YOUR HONOR, IS COME BACK TO

COFFEE AS THEY DID. COFFEE IS INCREDIBLY DIFFERENT, AND

THAT’S IMPORTANT TO NOTE, BECAUSE COFFEE IS AN UNDERTAKING

CLAIM, AND APPROPRIATELY, BECAUSE IT ALLEGES TWO IMPORTANT

THINGS THAT DID NOT EXIST HERE, WHICH IS ONE,

FORESEEABILITY — I WILL ADDRESS THAT WHEN I GET TO THE

SECOND CAUSE OF ACTION. BUT TWO, AND MORE IMPORTANTLY, IT

TALKS ABOUT TWO SEPARATE NEGLIGENT ACTS: THE NEGLIGENT ACT

OF THE EMPLOYER AND THE NEGLIGENT ACT OF THE DOCTOR, TWO

DIFFERENT ACTS. THAT IS NOT DONE HERE.

WHAT IS DONE HERE THROUGHOUT THE COMPLAINT, YOUR

HONOR, IS SAYING THAT MY CLIENTS ACTED NEGLIGENTLY BECAUSE

DR. MURRAY ACTED NEGLIGENTLY. OKAY. THAT GOES TO NEGLIGENT

SUPERVISION OF HIRING. THAT GOES TO RESPONDEAT SUPERIOR.

THAT MAKES IT EXCEPTIONALLY DIFFERENT THAN COFFEE.

REMEMBER, IN COFFEE, WHAT HAPPENED WAS THE

EMPLOYER — EMPLOYER DID NOT SUBMIT THE TEST THAT WOULD HAVE

SHOWN THE PERSON WAS ILL. THAT WAS THEIR NEGLIGENT ACT

HAVING UNDERTAKEN TO DO SO. THERE WAS NO SUCH ALLEGATION

HERE, YOUR HONOR. AND BECAUSE THERE WAS NONE, THE FIRST

CAUSE OF ACTION, IRRESPECTIVE OF THE CONTRACTS, SHOULD BE

DISMISSED BECAUSE THEY ABSOLUTELY DO NOT GO TO ANYTHING

OTHER THAN HIRING SUPERVISION AND THE LIKE.

THE COURT: SO THE DISTINCTION IN THAT CASE IS THAT

THE EMPLOYER ITSELF FAILED TO DO SOMETHING VERSUS HERE,

THEY’RE CLAIMING THAT MURRAY FAILED TO DO SOMETHING.

MR. PUTNAM: MURRAY FAILED AND EITHER DID SOME THINGS

HE SHOULDN’T HAVE DONE AND FAILED TO DO OTHER THINGS HE

SHOULD HAVE DONE AND, THEREFORE, WE ARE LIABLE FOR THAT ACT.

AGAIN, THAT’S HIRING SUPERVISION, AND THAT IS —

THE COURT: CAN THAT ALSO BE UNDERTAKING THOUGH. IF

YOU UNDERTAKE TO HIRE SOMEBODY, TO TAKE CARE OF ANOTHER,

YOU’RE UNDER A DUTY TO DO AN ADEQUATE INVESTIGATION AS TO

THEIR QUALIFICATIONS, WHETHER THEY HAVE INSURANCE, ADEQUATE

EQUIPMENT, THAT KIND OF THING? SO I’M WONDERING IF THAT CAN

ALSO SUPPORT A CAUSE OF ACTION.

MR. PUTNAM: FOR NEGLIGENT SUPERVISION, YES?

THE COURT: AND — OKAY.

MR. PUTNAM: IF YOU LOOK — IN OTHER WORDS, IF YOU

LOOK AT THE CASE LAW, WHERE THAT OCCURS — I’M GOING TO SAY

IN A MOMENT WHY IT DOESN’T GO THERE.

BUT IF YOU LOOK AT THE CASE LAW, THAT GOES TO

THE NEGLIGENT SUPERVISION CLAIM. THE IDEA BEING — IF I

TAKE THIS AS AN EXAMPLE: IT WAS INCUMBENT UPON ME TO GO OUT

AND DO AN INDEPENDENT INVESTIGATION AS TO WHETHER OR NOT

DR. MURRAY HAD SOMETHING THAT WOULD WARRANT OUR EITHER NOT

HIRING HIM OR TO SUPERVISE HIM IN A CERTAIN WAY. IT’S NOT

AN UNDERTAKING. THAT’S A NEGLIGENT SUPERVISION OF HIRING.

AND WHAT’S IMPORTANT TO NOTE WITHIN THAT, YOUR HONOR, WERE

THAT NOT THE CASE, THEN EVERY CASE WOULD BE A NEGLIGENT

UNDERTAKING CASE BY THE MERE FACT OF HIRING.

NOW, THE REASON I WOULD ARGUE, YOUR HONOR,THE FIRST CAUSE OF ACTION IS ALLEGED IN SUCH A SCATTER-SHOT

MANNER IS PRECISELY FOR THIS REASON: THEY ARE TRYING TO GET

AROUND THE REQUIREMENTS OF NEGLIGENT SUPERVISION. THEY’RE

TRYING TO GET AROUND THE REQUIREMENTS OF RESPONDEAT SUPERIOR

BY COMING UP WITH A NOVEL IDEA OF DUTY, BUT IT DOESN’T FIT

HERE, AND I DON’T THINK THE COURT SHOULD BE PUT IN A

POSITION WHERE IT IS ACCEPTING AN ENORMOUS BROADENING OF THE

CLAIMS THAT EXIST ACTUALLY IN LAW.

THE COURT: OKAY.

MR. BOYLE: YOUR HONOR, I THINK THE COURT HAS ALREADY

HANDLED THIS QUITE WELL IN THE TENTATIVE, BUT I THINK — YOU

KNOW, I DON’T THINK THERE’S MUCH CONFUSION ABOUT THE FIRST

CAUSE OF ACTION. IT’S A BREACH OF DUTY CAUSE OF ACTION.

IT’S A NEGLIGENCE CAUSE OF ACTION AGAINST AEG.

WE ALLEGED VARIOUS FORMS FROM WHICH THAT DUTY

ARISES. THE CONTRACT WITH AEG IN JACKSON, A DUTY ARISES

FROM THAT. THE SPECIAL RELATIONSHIP BETWEEN AEG AND

JACKSON, THE DUTY ARISES FROM THAT. THE JOINT VENTURE

BETWEEN AEG AND JACKSON, A FIDUCIARY DUTY ARISES FROM THAT.

AND WE ALSO CLEARLY ALLEGE IN HERE THAT AEG, INDEPENDENT OF

HIRING DR. MURRAY, COMMITTED BREACHES OF THAT DUTY THAT

ULTIMATELY LED TO MICHAEL JACKSON’S DEATH.

SO, AS THE COURT CORRECTLY NOTED IN THE

TENTATIVE, THE FIRST CAUSE OF ACTION STANDS FOR ALL OF THE

REASONS WHY THERE IS A DUTY THAT AEG HELD A DUTY TO MICHAEL

JACKSON. THAT’S WHAT THAT IS.

THEN WE HAVE NEGLIGENT SUPERVISION, WHICH HE

SAYS THE CASE IS ALL ABOUT, WHICH HE’S NOW GOING TO ATTACK

NEXT. AND THEN THE LAST CAUSE OF ACTION, WHICH HE WILL THEN

ATTACK NEXT. SO, YOU KNOW, I THINK THE COMPLAINT WAS THOROUGH. WE SPENT A LOT OF TIME ON THIS AND WE DID ALL OF

THE RESEARCH. THE COURT GOT IT RIGHT ON THESE DUTIES.

THE COURT: CAN I SIDETRACK A LITTLE BIT?

MR. PUTNAM: YOU MAY.

THE COURT: CIVIL CONSPIRACY, WHERE IS THAT?

MR. BOYLE: WHERE IS THAT?

THE COURT: YEAH, WHERE IS THAT? WHAT ARE THE FACTS

SUPPORTING CIVIL CONSPIRACY —

MR. BOYLE: WELL —

THE COURT: I MEAN, I UNDERSTOOD YOUR ARGUMENTS

CONCERNING SPECIAL RELATIONSHIP. I UNDERSTOOD YOUR

ARGUMENTS CONCERNING UNDERTAKING, BUT CIVIL CONSPIRACY.

MR. BOYLE: WELL, IT’S ACTUALLY — CIVIL CONSPIRACY IS

ACTUALLY QUITE EASY TO PROVE UNDER CALIFORNIA LAW.

COURT CITED THE OPERATIVE CASE BERG VERSUS BERG. DEFENDANTS

AGREEMENT TO THE OBJECTIVE COURSE OF ACTION, SO AEG AND

DR. MURRAY HAD AN AGREEMENT.

THE COURT: THEY CONSPIRED.

MR. BOYLE: WELL, THEY CONSPIRED, YOU KNOW.

AND, AS WE ALLEGE IN THE COMPLAINT, THE THEORY

IS AEG SAID: HEY, DO WHATEVER YOU CAN TO GET TO MICHAEL —

GET MICHAEL JACKSON TO REHEARSALS. THEY DIDN’T SAY: DO

WHATEVER YOU CAN TO TREAT HIM LIKE YOU’RE SUPPOSED TO. THE

CONTRACT THAT THEY, FOR SOME REASON WANT IN SO BADLY, THE

AEG/MURRAY CONTRACT, ACTUALLY SAYS MURRAY WILL ACT —

THE COURT: BUT —

MR. BOYLE: — AT THE REQUEST OF THE PRODUCER.

THE COURT: THE CONSPIRACY HAS TO BE SOMETHING

ILLEGAL, RIGHT, AND IF THE OBJECT —

MR. BOYLE: ADMINISTRATIVE.

THE COURT: — THE OBJECT IS TO GET HIM TO REHEARSALS,

I DON’T SEE WHERE THE WRONGFUL OR ILLEGAL ACT —

MR. BOYLE: BY — MAY I ANSWER?

THE COURT: WHERE IS THE OBJECT?

MR. BOYLE: WELL, THE OBJECT IS WHAT THE PROSECUTORS’

OFFICE IS PROSECUTING DR. MURRAY FOR, INVOLUNTARY

MANSLAUGHTER, BECAUSE THE AGREEMENT WAS DO WHATEVER YOU CAN

TO GET HIM TO REHEARSALS, INCLUDING ADMINISTERING A SLEEPING

DRUG ILLEGALLY.

THE COURT: THEN THEY COULD HAVE CHARGED AEG AND

DR. MURRAY WITH CRIMINAL CONSPIRACY, BUT THAT DIDN’T HAPPEN.

MR. BOYLE: DEPOSITIONS WILL FLESH THIS OUT, AND WE

WILL REDO THIS AT SUMMARY JUDGMENT. BUT BASED ON THE

PLEADING —

THE COURT: CONSPIRACY — LET ME ASK DEFENSE —

THAT A CAUSE OF ACTION? IT LOOKS TO ME LIKE IT’S ALLEGED IN

THE FIRST CAUSE OF ACTION AS A THEORY, NOT REALLY —

MR. PUTNAM: YOU COULD HAVE NO CAUSE OF ACTION THAT IS

A CONSPIRACY TO COMMIT NEGLIGENCE. OKAY. THAT DOESN’T

EXIST, AND THAT IS PRECISELY WHAT IT WOULD HAVE TO BE TO

EXIST HERE.

AND I THINK YOUR HONOR IS RIGHTLY SKEPTICAL OF

SUCH A CLAIM BECAUSE IT DOES NOT EXIST. AND I WOULD JUST

LIKE TO NOTE, YOUR HONOR, BEYOND THE FACT THAT YOU CAN’T

CONSPIRE TO COMMIT NEGLIGENCE, THERE’S ALWAYS — YOU WILL

SEE WHAT JUST HAPPENED.

AGAIN, THEY CITED VERBATIM, QUOTED TO THE

WRITTEN AGREEMENT AS THEIR DEFENSE HERE. IT GOES TO MY

PRECISE POINT THAT I’M GOING TO HAVE TO BRING UP EVERY TIME

HE DOES IT: HE CAN’T HAVE IT BOTH WAYS. THAT’S WHAT THE

COURTS HAVE FOUND.

YOUR HONOR, GOING TO THE OTHER CAUSES THEY JUST

BROUGHT UP, IF I MAY VERY BRIEFLY, WHICH WERE SPECIAL

RELATIONSHIP, JOINT VENTURE AND FIDUCIARY DUTY. YOUR HONOR,

FIDUCIARY DUTY IS A FIDUCIARY DUTY. IT IS NOT A DUTY TO

CARE FOR ANOTHER’S HEALTH AND WELL BEING. THEY ARE

DIFFERENT THINGS.

YOU CAN HAVE A BREACH OF FIDUCIARY DUTY. IT

DOESN’T GO TO MY TAKING CARE OF YOUR HEALTH. SAME WITH

JOINT VENTURE, IF YOU’RE LOOKING AT THE JOINT VENTURE WE

CITE TO, AGAIN, IT GOES TO THE FINANCIAL IDEAS. THERE CAN

BE A FINANCIAL BREACH, NOT A BREACH OF GOING AFTER SOMEONE’S

HEALTH AND WELL BEING, AND THAT’S THE SPECIAL RELATIONSHIP,

YOUR HONOR, IF I MAY.

WHAT I THINK IS IMPORTANT THERE, AND I DO THINK

IT’S IMPORTANT, IS THAT THE SPECIAL RELATIONSHIP THAT YOU

TALK ABOUT, YOUR HONOR, WITHIN YOUR TENTATIVE IS A — AND

CERTAINLY THE SPECIAL RELATIONSHIP THAT’S TALKED ABOUT BOTH

IN THE COMPLAINT AND IN THE OPPOSITION IS A FINANCIAL

SPECIAL RELATIONSHIP. IT TALKS ABOUT THE IDEA THAT HE WAS

ESPECIALLY DEPENDENT UPON THEM.

WELL, THE ESPECIAL DEPENDENCY THAT’S TALKED

ABOUT IS THE DEPENDENCE ABOUT THE IDEA THAT THEY WERE TAKING

CARE OF HIS FINANCIAL WELL BEING. WELL, I ASSURE YOU, YOUR

HONOR, IF WE WERE TO OPEN UP A DUTY OF CARE THAT GOES TO

FINANCIAL DEPENDENCE, THERE WILL BE LITERALLY MILLIONS OF

PEOPLE IN A COURTROOM SAYING THAT THERE WAS SUCH A BREACH,

EVERY SINGLE LAW STUDENT WILL WALK OUT OF LAW SCHOOL WITH

THAT SPECIAL FINANCIAL DEPENDENCE ON WHOMEVER THEIR EMPLOYER

IS. THIS IS A 50-YEAR-OLD ADULT MAN. HE IS — HE WAS AN

INCREDIBLY FAMOUS ROCK AND POP PERFORMER. HE SHOULD NOT BE

INFANTILIZED BY THIS NOTION THAT HE HAD A SPECIAL

RELATIONSHIP BECAUSE HE WAS FINANCIALLY DEPENDENT UPON IT.

THAT HAPPENS ALL OF THE TIME, AND THAT IS PRECISELY WHAT HAS

BEEN ATTEMPTED IN THE COMPLAINT.

AND I THINK, AS A RESULT, NO SPECIAL

RELATIONSHIP, AS THE LAW RECOGNIZES, EXISTS HERE BECAUSE THE

SPECIAL RELATIONSHIP UNDER THE LAW HAS TO GO WITHIN A

SPECIALLY VULNERABLE PERSON, A CHILD, A FOSTER CHILD, A

MOTORIST WITH THE POLICE. IT IS REPLETE WITH EXAMPLES.

MOREOVER, YOUR HONOR, THE LAW IS ALSO CLEAR THAT

SUCH SPECIAL RELATIONSHIPS, THAT TYPE OF DUTY, WHICH GOES

ABSOLUTELY CONTRARY TO THE GENERAL IDEA OF THE LAW, AS

OPPOSED TO MORALITY OR ETHICS, WHICH IS YOU HAVE NO DUTY TO

INTERCEDE TO HELP A THIRD PARTY, THAT IS THE LAW.

SPECIAL RELATIONSHIP DOCTRINE HAS A SMALL

EXCEPTION. WHAT WE ARE DOING HERE BY PERMITTING THIS PAST

DEMURRER IS TO SAY: NO. NO. NO. WE’RE GOING TO OPEN IT

BROADER TO EXAMPLES WHERE AN INDIVIDUAL IN SOME MEASURE HAS

A FINANCIAL DEPENDENCY ON ANOTHER. AND I WOULD CAUTION THAT

I THINK THAT THAT IS SOMETHING THAT COURTS HAVE NEVER DONE.

I DON’T THINK WE CAN FIND AN EXAMPLE AND I DON’T THINK WE

SHOULD HERE TODAY.

THE COURT: IT SOUNDS LIKE THERE WAS MORE THAN JUST

FINANCES. I THOUGHT IT WAS HIS PHYSICAL WELL BEING AND HIS

MEDICAL CARE WAS THE OTHER ASPECT OF IT, BUT —

MR. PUTNAM: THERE’S A CASE THAT WE CITE TO

SPECIFICALLY ABOUT THAT, AND I WILL GET THE PRECISE NAME FOR

YOU, YOUR HONOR, IN A MOMENT.

MR. BOYLE: WHILE HE’S LOOKING FOR THAT, MAY I

RESPOND.

I AGREE, YOUR HONOR. WE ALLEGED A LOT MORE THAN

FINANCIAL DEPENDENCE. THIS IS NOT GOING TO OPEN UP THE

FLOOD GATES OF LAWSUITS FOR LAW STUDENTS THAT HAVE STUDENT

LOANS. I LEARNED OUT IN LAW SCHOOL, WHEN YOU’RE OUT OF

ARGUMENTS, YOU GO TO THE SLIPPERY SLOPE ARGUMENT, AND THAT’

> tmj030004.jpg

Copyright © TeamMichaelJackson 2011 All Rights Reserved. No part of this document may be reproduced

J V AEG FEB 2nd/6

tmj030003.jpg

Powered by Translate

tmj030002.jpg

 

20

 

 

1 WHERE WE ARE HERE. AND I THINK THE COURT GOT IT RIGHT ON

 

2 THIS RULING.

 

3 MR. PUTNAM: I WOULD ARGUE, YOUR HONOR, WHAT I LEARNED

 

4 IN LAW SCHOOL IS WHEN YOU DON’T HAVE A CAUSE OF ACTION, YOU

 

5 DO A SCATTER-SHOT APPROACH AND CLAIM EVERYTHING UNDER THE

 

6 SUN AND HOPE ONE OF THEM STICKS.

 

7 THE COURT: WHAT I’M THINKING ABOUT DOING, AT LEAST

 

8 WITH RESPECT TO THIS CAUSE OF ACTION, IS JUST STRIKING THE

 

9 CIVIL CONSPIRACY ALLEGATIONS. I DON’T — THE ONLY THING

 

10 THAT YOU ALLEGED WAS, I THINK, ONE PARAGRAPH THAT BASICALLY

 

11 JUST SAID: THE DEFENDANTS ARE IN A CONSPIRACY. AND THERE

 

12 WAS JUST NO FLESHING OUT OF THE CONSPIRACY. AND WHAT WAS IN

 

13 THE COMPLAINT REALLY DIDN’T ADEQUATELY DESCRIBE —

 

14 MR. BOYLE: I WOULD ASK —

 

15 THE COURT: — THE CONSPIRACY.

 

16 MR. BOYLE: — SINCE WE’RE GOING TO BE RE-PLEADING

 

17 ANYWAY, WE JUST TAKE ANOTHER LOOK AT THAT, AND IF WE DECIDE

 

18 THAT WE CAN’T PLEAD THAT, WE WILL NOT DO IT. AND IF WE CAN,

 

19 WE WILL TAKE ANOTHER SHOT AT THAT.

 

20 BUT CIVIL CONSPIRACY IS KIND OF A COMPLEX IDEA.

 

21 IT’S SORT OF LIKE A JOINT AND SEVERAL THEORY OF LIABILITY

 

22 MORE THAN A STAND-ALONE CAUSE OF ACTION.

 

23 SO WHY DON’T WE TAKE ANOTHER LOOK AT IT, AND IF

 

24 WE WANT TO PLEAD IT, WE WILL DO IT. IF NOT, WE WON’T.

 

25 THE COURT: THIS IS WHAT I’M GOING TO DO: I’M GOING

 

26 TO STRIKE IT. I’M ADDING: STRIKE THE CONSPIRACY

 

27 ALLEGATIONS WITHOUT PREJUDICE OR WITH 20 DAYS LEAVE TO

 

28 AMEND, I GUESS.

 

 

1 MR. PUTNAM: YOUR HONOR, IF I CAN NOW GO ON VERY

 

2 QUICKLY TO NEGLIGENT SUPERVISION. THE ONE ISSUE I WOULD

 

3 LIKE TO NOTE HERE — IT’S KIND OF TWO PRONG.

 

4 THE COURT: REPEAT YOURSELF.

 

5 MR. PUTNAM: SORRY, YOUR HONOR. IN TERMS OF THE CAUSE

 

6 OF ACTION FOR NEGLIGENT SUPERVISION.

 

7 THE COURT: OKAY.

 

8 MR. PUTNAM: I WILL BE BRIEF HERE, YOUR HONOR. IT’S A

 

9 TWO-PRONGED ARGUMENT WITH THE SAME BASIS, WHICH IS THE IDEA

 

10 THAT IT WASN’T FORESEEABLE FOR ANY DUTY THAT HAS A RESULT OF

 

11 FORESEEABILITY. I THINK IT’S INCREDIBLY IMPORTANT TO NOTE

 

12 HERE WHAT WE’RE TALKING ABOUT IN TERMS OF FORESEEABILITY.

 

13 FORESEEABILITY HERE WOULD BE THAT A LICENSED PHYSICIAN WAS

 

14 GOING TO ADMINISTER A DRUG THAT NONE OF US HAVE EVER HEARD

 

15 OF BEFORE MR. JACKSON DIED ON JUNE 25TH, CALLED PROPOFOL,

 

16 WHICH IS ONLY TO BE ADMINISTERED IN A HOSPITAL, AND AS A

 

17 RESULT OF THAT FORESEEABILITY, WE CAN SOMEHOW BE HELD

 

18 LIABLE.

 

19 CLEARLY, THERE IS NO FORESEEABILITY THAT MICHAEL

 

20 JACKSON OR ANYONE IS GOING TO DIE IN THEIR HOME FROM AN

 

21 OVERDOSE OF PROPOFOL AND NOTHING WITHIN THEIR COMPLAINT

 

22 POINTS TO THAT. AND THAT’S WHAT I WANT TO NOTE FOR A

 

23 SECOND.

 

24 THE COURT: DOES THE INJURY HAVE TO BE THAT SPECIFIC?

 

25 MR. PUTNAM: YES. IF YOU LOOK AT WHAT FORESEEABILITY

 

26 IS, IT SAYS YOU HAVE TO PLEAD IT WITH SPECIFICITY WHAT THE

 

27 FORESEEABILITY WOULD BE.

 

28 THE COURT: DOES THE TORTFEASOR HAVE TO FORESEE THAT

 

 

1 SPECIFIC SET OF CIRCUMSTANCES — THAT EXACT SET OF FACTS?

 

 

2 MR. PUTNAM: THAT — THE IDEA THAT A CRIME WOULD BE —

 

3 IT HAD TO BE FORESEEABLE THAT A CRIME WOULD BE COMMITTED;

 

4 THEY NOTED THERE’S A CRIMINAL PROCEEDING THAT IS OCCURRING

 

5 HERE AS A RESULT, AND THAT IS WHAT OCCURRED HERE.

 

6 SO I WOULD ARGUE YES, ABSOLUTELY, THERE HAS TO

 

7 BE SOME FORESEEABILITY THAT WHAT HAPPENED HERE — THAT —

 

8 WHAT I THINK THAT IT GOES TO, YOUR HONOR — IT’S VERY

 

9 IMPORTANT HERE. ALL THEY TALK ABOUT IS AN IDEA THAT IT WAS

 

10 FORESEEABLE THAT, IN SOME MEASURE, HE WAS GOING TO BE TAKING

 

11 SLEEPING AIDS, FOR EXAMPLE. THIS IS ONE THING THAT IS

 

12 TALKED ABOUT. THERE IS THE IDEA THAT —

 

13 THE COURT: AND THAT POTENTIAL SERIOUS INJURY OR DEATH

 

14 COULD RESULT AS WELL.

 

15 MR. PUTNAM: BUT, GUESS WHAT? HE DIDN’T DIE FROM SUCH

 

16 SLEEPING AIDS. HE DIED FROM AN ILLEGAL OVERDOSE OF AN

 

17 ANESTHETIC, WHICH IS NOT — AND THEY SAY IN THE COMPLAINT,

 

18 IS NOT A SLEEPING AID.

 

19 OKAY. BY THE WAY, I’M NOT ACCEPTING ANY OF THAT

 

20 AS TRUE EXCEPT FOR THE DEMURRER. BUT EVEN ACCEPTING WHAT

 

21 THEY SAY IN DEMURRER, THEY SAY THEY WANT — THEY TOLD THEM

 

22 TO GET HIM TO REHEARSAL ON TIME. OKAY. THEY TOLD THEM THAT

 

23 HE WAS GOING TO ADMINISTER SLEEPING AIDS TO HELP THE MAN

 

 

24 SLEEP, I CAN GIVE YOU HUNDREDS OF THOUSANDS OF PEOPLE WHO

 

25 HAVE BEEN ASKED TO HELP A PERSON TO GET TO WORK ON TIME. I

 

26 CAN GIVE YOU HUNDREDS OF THOUSANDS OF PEOPLE WHO CAN TALK

 

27 ABOUT TAKING A SLEEPING AID TO HELP THEM SLEEP THAT DOESN’T

 

28 RESULT IN FORESEEABILITY THAT A DOCTOR IS GOING TO COMMIT

 

 

1 WHAT IS ALLEGED TO BE A CRIMINAL ACT IN THE HOME THAT WILL

 

2 RESULT IN A PERSON’S OVERDOSE.

 

3 THE COURT: LET ME ASK YOU THIS: IF THAT SAME DOCTOR

 

4 IS GOING TO ADMINISTER SLEEPING AIDS, BUT THEY THEN TELL

 

5 AEG: YOU ALSO NEED TO PAY FOR RESUSCITATION EQUIPMENT AND

 

6 PROVIDE A NURSE IN ADDITION, IS THAT NORMAL FOR —

 

7 MR. PUTNAM: ACTUALLY, YOUR HONOR —

 

8 THE COURT: FOR SOMEONE WHO IS JUST TAKING SLEEPING

 

9 AIDS, DO YOU NEED RECITATION EQUIPMENT?

 

10 MR. PUTNAM: I MIGHT AGREE WITH YOU, YOUR HONOR —

 

11 THE COURT: AGAIN, THIS IS JUST THE ALLEGATION.

 

12 MR. PUTNAM: I UNDERSTAND. I’M — TRUST ME. I’M ONLY

 

13 TAKING THE ALLEGATIONS BECAUSE THE FACTS ARE NOWHERE NEAR

 

14 THIS. BUT TAKING THAT ALLEGATION, WHAT IS NOT ALLEGED IS

 

15 THAT IT WAS ASKED AT ANY TIME OR REQUIRED AT ANY TIME THAT

 

16 THOSE MATERIALS BE PROVIDED TO DR. MURRAY IN THE HOME.

 

17 WHAT HAD TO BE ALLEGED HERE WAS AN IDEA THAT,

 

18 FOR THE MONTH OF MAY, FOR THE MONTH OF JUNE, THESE THINGS

 

19 WERE REQUIRED TO BE PROVIDED. AND THE REASON THEY DON’T

 

20 ALLEGE THAT IS BECAUSE THAT’S NOT WHAT OCCURRED. WHAT THE

 

21 FACTS WILL SHOW, SHOULD WE EVER GET THERE — I HOPE WE

 

22 DON’T — WAS THEY WERE ASKING FOR THOSE AT THE VENUE IN

 

23 LONDON.

 

24 BUT IRRESPECTIVE OF THAT ACTUAL FACT, WHAT

 

25 DOESN’T HAPPEN HERE IN THE COMPLAINT OR EVEN IN THEIR

 

26 OPPOSITION IS AN ALLEGATION THAT AEG WAS TOLD THAT THESE

 

27 THINGS WERE NEEDED IN THE HOME. BUT EVEN IF SO, YOUR HONOR,

 

28 EVEN IF SO — LET’S GO FURTHER AND SAY IT WAS THAT IT WAS IN

tmj030001.jpg

> tmj031004.jpg

Copyright © TeamMichaelJackson 2011 All Rights Reserved. No part of this document may be reproduced

J V AEG FEB 2nd/7

tmj031003.jpg

Powered by Translate

tmj031002.jpg

 

24

 

 

1 THE HOME, THE MERE FACT THAT THEY SAY THAT THEY NEED A

 

2 RECITATION AND OTHER TYPES OF MEDICAL EQUIPMENT DOESN’T MEAN

 

3 THAT IT WAS FORESEEABLE THAT THEY KNEW THAT HE WAS

 

4 ADMINISTERING STUFF THAT WOULD RESULT TO A PERSON’S

 

5 OVERDOSE.

 

6 WHAT THAT IS TO SAY IS THAT IT SHOULD HAVE BEEN

 

7 FORESEEABLE TO AEG THAT CRIMINAL ACTS WERE BEING PERFORMED

 

8 THAT WOULD RESULT IN A PERSON’S OVERDOSE, AND NOTHING HERE

 

9 IS FORESEEABLE TO THAT POINT.

 

10 CAN I JUST SEGUE INTO — I SAID IT WAS RELATED

 

11 BECAUSE IT’S IMPORTANT. BUT EVEN IF I WERE TO ACCEPT — AND

 

12 I DON’T ACCEPT IT. IF THIS IS THE WAY IT’S GOING, THERE’S

 

13 SOMETHING HERE THAT HAS TO BE TAKEN OUT, YOUR HONOR, BECAUSE

 

14 THIS IS JUST NOT WHAT HAPPENED.

 

15 IN 12 AND 13 —

 

16 THE COURT: PAGE 12?

 

17 MR. PUTNAM: SORRY. PAGE 12 AND 13 OF THE TENTATIVE,

 

18 IT SAYS THAT THEY WERE TO ADMINISTER MEDICATION TO BRING

 

19 ABOUT THOSE GOALS. THAT’S THE END OF THE FIRST SENTENCE.

 

20 THE COURT: WAIT A MINUTE. PAGE 12. I DON’T HAVE

 

21 THAT ON MINE.

 

22 MR. PUTNAM: THE END OF 12 ONTO 13. I JUST WANT TO

 

23 SHOW YOU — IT’S A RUN-ON SENTENCE. AND AFTER THE CITE OF

 

24 FEDERICO —

 

25 I MEAN, IT RUNS ONTO THE NEXT PAGE, NOT THAT

 

26 YOU’RE RUNNING ON.

 

27 THE COURT: I MAY BE RUNNING ON. YOU MAY BE RIGHT

 

28 ABOUT THAT.

 

1 MR. PUTNAM: BUT IT GOES ON TO THE NEXT — IT TALKS

 

2 ABOUT: TO ADMINISTER MEDICATION TO BRING ABOUT THOSE GOALS,

 

3 PERIOD.

 

4 THE COURT: OKAY. I SEE.

 

5 MR. PUTNAM: AND THEN IT SAYS: “PLAINTIFF’S

 

6 OPPOSITION CONTENDS THAT THE COMPLAINT STATES THAT THE

 

7 DEFENDANTS DIRECTED DR. MURRAY TO PROVIDE UNORTHODOX MEDICAL

 

8 TREATMENT FOR THE SOLE PURPOSE OF INSURING DECEDENT’S

 

9 ATTENDANCE AT REHEARSALS AND PERFORMING DECEDENT’S

 

10 OBLIGATIONS UNDER THE CONTRACT,” AND IT GOES ON FROM THERE.

 

11 TWO PROBLEMS WITH THAT, YOUR HONOR. ONE, GUESS WHAT, I

 

12 THINK THE TENTATIVE ADMITS RIGHT THERE THAT THE COMPLAINT

 

13 DOESN’T SAY THAT.

 

14 AS WE NOTE IN OUR REPLY, WHEN THEY CAME UP WITH

 

15 THIS IN THE OPPOSITION, THIS IS NOT IN THE COMPLAINT.

 

16 AND THIS IS VERY CLEAR, YOUR HONOR, A DEMURRER

 

17 IS TO ACCEPT THE FACTS AS PLED IN THE COMPLAINT. ALL RIGHT.

 

18 IT DOESN’T MEAN THAT THEY’RE TRUE, BUT I HAVE TO ACCEPT THEM

 

19 ON DEMURRER. IT IS NOT THAT THEY CAN BRING UP THOSE. THAT

 

20 IS WHAT REPLEADING IS FOR, YOUR HONOR. AND I BELIEVE THAT

 

21 WHAT YOU HAVE DONE HERE, BECAUSE YOU HAD TO, WAS MAKE A

 

22 CONNECTION BETWEEN CERTAIN THINGS THAT WERE ALLEGED.

 

23 WHAT THEY THEN SAY IN OPPOSITION TO COME UP

 

24 WITH, I THINK, A VERY ATTENUATED ARGUMENT THAT THAT MUST

 

25 MEAN THAT IT WAS FORESEEABLE. IT WAS NEVER SAID, YOUR

 

26 HONOR.

 

27 THE COURT: WELL, NO, BUT THE COURT IS ALLOWED TO DRAW

 

28 INFERENCES, CORRECT, BASED ON FACTS THAT ARE PLED?

 

1 SO WHAT YOU’RE CHALLENGING IS THE COURT’S

 

2 DRAWING OF THAT INFERENCE CONCERNING FORESEEABILITY. IN

 

3 OTHER WORDS, YOU’RE NOT DENYING THAT THEY STATE IN THE

 

4 COMPLAINT ABOUT THE EQUIPMENT. THAT THEY’RE NOT — YOU’RE

 

5 NOT DENYING THAT THEY CLAIMED THAT AEG WAS REQUIRING MURRAY

 

6 TO GET HIM TO REHEARSALS OR DO WHATEVER HE COULD TO GET HIM

 

7 TO REHEARSALS, AND THAT THEY CLAIM THAT HE WAS — OR THAT

 

8 AEG WAS REQUIRING MURRAY TO PROVIDE UNORTHODOX MEDICAL

 

9 TREATMENTS. WHAT YOU’RE SAYING — WHAT YOU’RE CHALLENGING

 

10 IS THE COURT’S DRAWING OF INFERENCES FROM THOSE TWO FACTS —

 

11 MR. PUTNAM: ACTUALLY —

 

12 THE COURT: — CONCERNING THE FORESEEABILITY.

 

13 MR. PUTNAM: I’M DENYING THE THIRD.

 

14 THERE’S NOTHING IN THERE THAT TALKS ABOUT HIM

 

15 SUPPLYING UNORTHODOX MEDICAL TREATMENTS. THAT WAS ADDED IN

 

16 THE OPPOSITION.

 

17 I WILL ARGUE, YOUR HONOR, THAT WHILE THE COURT

 

18 MAY MAKE INFERENCES BASED ON FACTS ALLEGED IN THE COMPLAINT,

 

19 WHAT THE COURT IS NOT SUPPOSED TO ON DEMURRER, IF I MAY,

 

20 YOUR HONOR, IS TAKE A FACT IN THE COMPLAINT THAT MAKES NO

 

21 SENSE, AND AN OPPOSITION THAT PROVIDES ADDITIONAL FACTS —

 

22 THE COURT: YES.

 

23 MR. PUTNAM: — THAT CAN THEN RESULT IN AN INFERENCE.

 

24 AND THAT, FOR THAT REASON ALONE, YOUR HONOR, I

 

25 BELIEVE THAT THIS SHOULD ACTUALLY BE DISMISSED, THOUGH I

 

26 UNDERSTAND WITH LEAVE TO REPLEAD IF THEY WANT TO REPLEAD

 

27 THIS FACT FOR WHICH THEY HAVE NO BASIS. BUT IF THEY’RE

 

28 GOING TO REPLEAD IT, THAT’S ONE THING, BUT IT DOESN’T EXIST

 

1 HERE.

 

2 MR. BOYLE: CAN I TALK, YOUR HONOR?

 

3 THE COURT: WELL, LET HIM FINISH. I THINK HE WAS MID

 

4 SENTENCE.

 

5 MR. BOYLE: OKAY. HE KEEPS DOING THE SEGUE TO OTHER

 

6 THINGS THAT ARE IMPORTANT, SO I DON’T EVEN KNOW WHICH ISSUE

 

7 WE’RE ON RIGHT NOW, BUT, GO AHEAD.

 

8 THE COURT: I THINK WE’RE ON THE FORESEEABILITY ISSUE.

 

9 MR. PUTNAM: I’M HAPPY TO HELP YOU COME BACK, IF YOU

 

10 WOULD LIKE.

 

11 MR. BOYLE: OKAY.

 

12 MR. PUTNAM: WITHIN THAT, WHAT IT STRAIGHTLY SAYS FOR

 

13 THIS CAUSE OF ACTION, WHICH GOES TO YOUR POINT, WHICH IS

 

14 SHOULDN’T THEY INVESTIGATE. THERE’S ACTUALLY NOT A DUTY TO

 

15 INVESTIGATE. MOREOVER, WHERE CASES HAVE FOUND A DUTY, THEY

 

16 SAID WHAT YOU MUST ALSO ALLEGE IS THAT IF THEY HAD

 

17 INVESTIGATED, THEY WOULD HAVE FOUND SOMETHING THAT WOULD

 

18 RESULT IN FORESEEABILITY, AND THAT IS NOT ALLEGED IN THE

 

19 COMPLAINT.

 

20 IT GOES BACK TO MY POINT, YOUR HONOR, IN TERMS

 

21 OF WHAT THEY ALLEGED ACTUALLY IN THE COMPLAINT, THERE IS NOT

 

22 A COGNIZABLE LEGAL DUTY HERE.

 

23 MR. BOYLE: SO WHAT I THINK WE’RE TALKING ABOUT IS THE

 

24 SENTENCE ON PAGE 13 WHERE COUNSEL FOR AEG READ PART OF IT,

 

25 AND THEN HE STOPPED AT THE WORD “CONTRACT” AND SAID, “AND IT

 

26 GOES ON AND ON AND ON.” OF COURSE THE KEY PART OF THAT

 

27 SENTENCE THAT THE COURT RIGHTLY POINTED OUT WAS “FOR WHICH

 

28 LIFE-SAVING EQUIPMENT, RECITATION EQUIPMENT AND NURSE, WAS

tmj031001.jpg

> tmj032004.jpg

Copyright © TeamMichaelJackson 2011 All Rights Reserved. No part of this document may be reproduced

J V AEG FEB 2nd/8

tmj032003.jpg

Powered by Translate

tmj032002.jpg tmj032001.jpg

 

28

 

 

1 NECESSARY.” NOT ONLY DID THE COURT DRAW A PROPER INFERENCE

 

2 FROM WHAT WE PLED IN THE COMPLAINT — IN FACT PARAGRAPH 42

 

3 OF THE COMPLAINT SPECIFICALLY SAYS: AEG KNEW THERE WAS

 

4 NIGHTLY SLEEPING — NIGHTLY ADMINISTERING SLEEP REMEDIES TO

 

5 JACKSON AND AEG FAILED TO PROVIDE THAT LIFE-SAVING

 

6 EQUIPMENT. OKAY. SO IN OTHER PARTS OF THE COMPLAINT, WE

 

7 TALK ABOUT SLEEP REMEDIES BEING PROPOFOL.

 

8 SO WE OBVIOUSLY ALLEGED THAT AEG WAS AWARE. NOT

 

9 ONLY WAS IT FORESEEABLE, THAT THEY WERE AWARE IT WAS

 

10 HAPPENING. SO I THINK THE COURT — SENTENCE RIGHT HERE IS

 

11 EXACTLY RIGHT. I DON’T THINK IT NEEDS TO BE RE-PLED AT ALL.

 

12 I MEAN, THEY TOLD ME OUT IN THE HALLWAY THEY LIKED THIS

 

13 TENTATIVE BUT NOW, APPARENTLY, THEY DON’T LIKE IT, SO I

 

14 DON’T KNOW WHAT TO DO.

 

15 MR. PUTNAM: I WOULD TELL YOU SOME OF THE THINGS HE

 

16 TOLD ME BUT I DON’T THINK IT APPROPRIATE.

 

17 THE COURT: ANYTHING YOU DISCUSS OUT IN THE HALL IS

 

18 NOT RELEVANT.

 

19 MR. BOYLE: NOT PART OF THE CASE. IT’S OUTSIDE OF THE

 

20 PLEADINGS.

 

21 MR. PUTNAM: USUALLY.

 

22 NOW I’M GOING TO THE STATUTE OF LIMITATIONS’

 

23 ARGUMENT, YOUR HONOR. I WANT TO VERY QUICKLY NOTE THE

 

24 FOLLOWING, BECAUSE I DO THINK IT IS —

 

25 THE COURT: WHICH CAUSE OF — THAT WAS THE LAST ONE.

 

26 MR. PUTNAM: PARDON ME, YOUR HONOR, THE LAST CAUSE OF

 

27 ACTION THAT GOES TO RESPONDEAT SUPERIOR. AND, WITHIN THAT,

 

28 THERE IS AN ARGUMENT REGARDING THE STATUTE OF LIMITATIONS —

 

1 AND I KNOW I HAVE TO SLOW DOWN.

 

2 AND THE WAY THEY SAY THAT, YOUR HONOR, IS BY A

 

 

3 CLAIM OF: NO, THIS COULD HAVE BEEN RECKLESS AND, THEREFORE,

 

4 WITHIN — AND THEY CITE TO THE CASE, YOUR HONOR,

 

5 SPECIFICALLY — LET ME GET IT FOR A MOMENT, SO I CAN

 

6 PRONOUNCE IT CORRECTLY, YOUR HONOR — BENNUN, B-E-N-N-U-N,

 

7 WHICH IS IN THE TENTATIVE, YOUR HONOR, ON PAGE 19.

 

8 HERE’S THE PROBLEM WITH BENNUN, YOUR HONOR: THE

 

9 CASES THEY CITE TO — AND BENNUN IS AN EXAMPLE OF THAT —

 

10 ARE CASES THAT ARE — HAVE SEPARATE STATUTES AND SEPARATE

 

11 STATUTES OF LIMITATIONS. THEY ARE NOT MEDICAL MALPRACTICE

 

12 CASES. THEY ARE CASES THAT GO TO INTENTIONAL TORTS OR, AS

 

13 HERE, ELDER ABUSE.

 

14 I UNDERSTAND THAT IF WE HAD AN ELDER ABUSE CASE,

 

15 ALL RIGHT, OR IF WE HAD SOMETHING THAT WAS AN INTENTIONAL

 

16 TORT CASE, THAT THE STATUTE OF LIMITATIONS COULD BE GREATER

 

17 THAN ONE YEAR. I DON’T DISAGREE WITH THAT. THOSE ARE NOT

 

18 THE CASE. THAT IS NOT THE CASE WE HAVE HERE. EVERY CAUSE

 

19 OF ACTION PLED, YOUR HONOR, IS A NEGLIGENCE CAUSE OF ACTION.

 

20 THEY HAVE NOT PLED AN INTENTIONAL TORT. THEY HAVE NOT PLED

 

21 A STATUTE THAT HAS SOME KIND OF RECKLESS REQUIREMENT;

 

22 THEREFORE, YOU HAVE TO HAVE A ONE-YEAR STATUTE OF

 

23 LIMITATIONS.

 

24 AND LET ME GO FURTHER: IF THAT WERE NOT THE

 

25 CASE, YOUR HONOR, THIS IS ANOTHER EXAMPLE OF WHERE THEY TAKE

 

26 THE LAW AND THEN TRY TO EXPAND IT BEYOND ALL POSSIBLE

 

27 BOUNDS.

 

28 NOW WHILE I UNDERSTAND THAT I’M MAKING A

 

1 SLIPPERY-SLOPE ARGUMENT, IT CERTAINLY APPLIES HERE, YOUR

 

2 HONOR, BECAUSE OTHERWISE EVERY NEGLIGENCE CASE CAN SAY THAT

 

3 A PERSON, HOWEVER, ACTED RECKLESSLY AND THEREFORE GET AROUND

 

4 STATUTE OF LIMITATIONS. THE MERE FACT THAT IT COULD HAVE

 

 

5 BEEN RECKLESS DOESN’T DO IT. YOU HAVE TO ALLEGE SOMETHING

 

6 THAT IS EITHER INTENTIONAL TORT OR HAS A RECKLESSNESS

 

7 STANDARD. THAT DOESN’T EXIST HERE.

 

8 THE COURT: IN THIS CASE, I MEAN, WHEN YOU HAVE

 

9 SOMEBODY CHARGED WITH CRIMINAL ACTS, IT SEEMS TO ME IT WOULD

 

10 BE MORE IN THE NATURE RECKLESSNESS THAN IT WOULD BE OF THE

 

11 NEGLIGENCE. BUT AGAIN, IT’S YOUR NEGLIGENCE, NOT MURRAYS’.

 

12 MR. PUTNAM: EXACTLY.

 

13 THE COURT: I UNDERSTAND.

 

14 MR. BOYLE: AGAIN, I THINK THE COURT GOT THIS EXACTLY

 

15 RIGHT. WE PLED REPEATEDLY — WE USED THE WORD RECKLESSNESS

 

16 REPEATEDLY IN THE COMPLAINT. AND THIS IS NOT — THIS IS

 

17 NOT — WE’RE JUST NOT PULLING THIS OUT OF THIN AIR.

 

18 DR. MURRAY IS CHARGED WITH INVOLUNTARY MANSLAUGHTER. I KNOW

 

19 YOUR HONOR HAS DONE A LOT OF WORK IN THE CRIMINAL FIELD AND

 

20 INVOLUNTARY MANSLAUGHTER, THE STANDARD OF SCIENTER, HAS BEEN

 

21 DEFINED AS RECKLESSNESS.

 

22 SO IN FEBRUARY, WHEN THIS TRIAL HAPPENS, IF

 

23 DR. MURRAY IS CONVICTED, THERE’S A JUDICIAL FINDING THAT’S

 

24 APPLICABLE TO THIS CASE, THAT HE WAS RECKLESS. AND THAT

 

25 JUST SHOWS IT’S — DECIDING —

 

26 THE COURT: YOU MEAN UNDER THE RESPONDEAT SUPERIOR —

 

27 MR. BOYLE: WELL. YEAH.

 

28 THE COURT: — THEORY?

 

1 MR. BOYLE: OR UNDER THE JOINT VENTURE WITH AEG OR

 

2 ANYTHING. I THINK I ONLY BRING THAT OUT TO SHOW IT’S WAY

 

3 TOO EARLY TO BE DECIDING A STATUTE — A VERY FACT-BASED

 

4 STATUTE OF LIMITATIONS ARGUMENT AT DEMURRER.

 

5 THE COURT: WASN’T THERE ANOTHER ARGUMENT? ASSUMING

 

6 IT’S NOT RECKLESS, LET’S ASSUME IT’S NEGLIGENCE, ORDINARY

 

7 CARE.

 

8 MR. BOYLE: THE DISCOVERY RULE. AND THEN THAT’S A

 

9 VERY FACT-BASED THING THAT’S MORE APPROPRIATE FOR SUMMARY

 

10 JUDGMENT OR TRIAL, IF WE GET PAST SUMMARY JUDGMENT ON THAT.

 

11 AND, YOU KNOW, I THINK — ONE THING I WANTED TO

 

12 SAY ABOUT THE COUNSEL’S SPEECH BEFORE. HE SAID SOMETHING

 

13 VERY IMPORTANT, THAT HE KIND OF SAID QUICKLY, WHICH WAS THEY

 

14 HOPE THAT THEY DON’T GET TO THE FACTS IN THIS CASE, AND

 

15 THAT’S WHAT THE PLAINTIFF IS ENTITLED TO DO, IS TO GET TO

 

16 THE FACTS. AND THERE’S A REASON THEY HOPE WE DON’T GET TO

 

17 THE FACTS. AND WE’RE JUST AT DEMURRER RIGHT NOW, AND WE

 

18 PLED — WE WERE VERY THOROUGH IN THIS PLEADING.

 

19 I RESPECT THE COURT’S RULING ON CAUSES OF ACTION

 

20 THREE AND FOUR AND CIVIL CONSPIRACY, AND WE WILL COMPLY.

 

21 BUT, FOR THE PURPOSES OF DEMURRER, WE’RE THERE.

 

22 MR. PUTNAM: I WOULD JUST LIKE TO NOTE FOR THE RECORD,

 

23 ONCE AGAIN, YOUR HONOR, THAT MY WORDS, ONCE AGAIN, HAVE BEEN

 

24 HORRIBLY MISCONSTRUED. WHEN I INDICATED I DID NOT — DO NOT

 

25 WANT TO GET TO THE FACTS, IT WAS CLEAR WITHIN MY STATEMENT

 

26 AT THE TIME, AND IT SHOULD BE CLEAR HERE, WHAT I WAS SAYING

 

27 IS IT WAS UNWARRANTED UNDER THE LAW. AND IF IT WERE

 

28 PERMITTED UNDER THE LAW, IT WOULD IMPERMISSIBLY OPEN UP

> tmj033003.jpg

Copyright © TeamMichaelJackson 2011 All Rights Reserved. No part of this document may be reproduced

J V AEG FEB 2nd/9

tmj033002.jpg

Powered by Translate

tmj033001.jpg

 

32

 

 

1 PLEADINGS TO EVERYONE. IT WAS NOT WHAT THE ACTUAL FACTS

 

2 SUGGEST, AS I HAVE INDICATED THROUGHOUT THE PLEADINGS — I

 

3 MEAN, THROUGHOUT THE PAPERS, AND AS I HAVE INDICATED HERE

 

4 TODAY.

 

5 ONE FINAL THING, YOUR HONOR.

 

6 THE COURT: OKAY.

 

7 MR. PUTNAM: NEGLIGENT INFLICTION.

 

8 THE COURT: OH, YES. OKAY.

 

9 MR. PUTNAM: OKAY.

 

10 THE COURT: THAT WAS THE FOURTH. WASN’T THAT THE

 

11 FOURTH?

 

12 MR. PUTNAM: YES, YOUR HONOR.

 

13 THE COURT: DIDN’T YOU PREVAIL?

 

14 MR. PUTNAM: I DID PREVAIL.

 

15 THE COURT: BUT YOU WANT TO ARGUE ANYWAY.

 

16 MR. PUTNAM: JUST A SMALL POINT, IF I CAN.

 

17 LEAVE TO RE-PLEAD. THEY HAVE ADMITTED IN THEIR

 

18 COMPLAINT, AND IN THEIR PAPERS, THAT MICHAEL JOSEPH JACKSON,

 

19 JR. WAS NOT PRESENT. THEY SAID HE COULD HAVE PERCEIVED. AS

 

20 THE LAW MAKES IT VERY CLEAR, COULD HAVE IS NOT THE STANDARD.

 

21 IF IT’S HIS CLIENT, HE CAN KNOW PRECISELY WHAT OCCURRED.

 

22 LEAVE TO AMEND SHOULD NOT EXIST FOR SOMETHING THAT MIGHT

 

23 HAVE OCCURRED, PARTICULARLY WHEN THEY MAY ADMIT THAT WHAT IS

 

24 NECESSARY UNDER THE VERY NARROW NEGLIGENT INFLICTION OF

 

25 EMOTIONAL DISTRESS ARENA IS NOT SOMETHING THAT THEY CAN GET.

 

26 AND, AS SUCH, I THINK IT SHOULD BE WITHOUT LEAVE TO

 

27 RE-PLEAD, YOUR HONOR.

 

28 MR. BOYLE: I AGREE WITH THE COURT’S RULING ON THIS

 

 

1 CAUSE OF ACTION. I BELIEVE THAT MICHAEL JOSEPH JACKSON, JR.

 

2 HAS A RIGHT TO RE-PLEAD THIS, AND WE DON’T SAY “COULD”. IN

 

3 THE COMPLAINT WE ACTUALLY SAY: MICHAEL JOSEPH JACKSON, JR.

 

4 WITNESSED HIS FATHER, SO —

 

5 THE COURT: WELL, HE WITNESSED HIS FATHER IN DISTRESS.

 

6 MR. PUTNAM: RIGHT.

 

7 MR. BOYLE: RIGHT.

 

8 THE COURT: WHAT IS DEFECTIVE IS: DID HE WITNESS THE

 

9 NEGLIGENCE AND UNDERSTAND THE SIGNIFICANCE OF WHAT WAS GOING

 

10 ON? THAT WAS AT LEAST MY CONCERN.

 

11 MR. BOYLE: I UNDERSTAND.

 

12 THE COURT: DEFENDANTS, I THINK, RAISED THAT TOO.

 

13 MR. BOYLE: AND THAT THEIR POINT IS WELL TAKEN ABOUT

 

14 THAT THERE MAY BE A SPECIAL RULE FOR MEDICAL NEGLIGENCE,

 

15 INFLICTION OF EMOTIONAL DISTRESS. THAT SAID — AND I JUST

 

16 QUERY THE COURT, AND WE CAN DEAL WITH THIS ON THE SECOND

 

17 DEMURRER.

 

18 THE COURT: OKAY.

 

19 MR. BOYLE: BUT IF IT’S RECKLESS, DOES THAT STANDARD

 

20 APPLY? I DON’T KNOW. I MEAN, RECKLESS TAKES THING OUT OF

 

21 MICRA; MAYBE THAT’S CASE LAW. AND INFLICTION OF EMOTIONAL

 

22 DISTRESS ALSO DOESN’T APPLY.

 

23 THE COURT: I GUESS THAT’S WHAT YOU WILL TELL ME AT

 

24 THE NEXT ROUND.

 

25 MR. BOYLE: EXACTLY.

 

26 MR. PUTNAM: NOTHING FURTHER, YOUR HONOR.

 

27 THE COURT: ALL RIGHT. THANK YOU.

 

28 WELL, THE ONLY THING I HAVE CHANGED IS THE — I

 

 

1 HAVE STRICKEN — I HAVE STRICKEN THE CONSPIRACY ALLEGATIONS

 

2 BUT ALLOWED LEAVE TO AMEND IF YOU WANT TO FLESH THAT OUT.

 

3 BUT, OTHER THAN THAT, THE TENTATIVE WILL REMAIN.

 

4 MR. BOYLE: YOUR HONOR, AND JUST — AND THIS IS

 

5 OBVIOUSLY JUST — I THINK JUST A TYPO, BUT I DON’T WANT IT

 

6 TO BE A PROBLEM.

 

7 THE COURT: IT PROBABLY IS.

 

8 MR. BOYLE: ON PAGE 6, IT SAYS: “DEFENDANT’S CAUSED

 

9 DECEDENT’S DEATH THROUGH WRONGFUL ACTS” — THE BOTTOM OF THE

 

10 PAGE 6 — “INCLUDING BREACH OF CONTRACT, FRAUD, NEGLIGENT

 

11 HIRING, SUPERVISION AND RESPONDEAT SUPERIOR.”

 

12 DO YOU SEE THAT? IT’S A LIST OF OUR CAUSES OF

 

13 ACTION.

 

14 THE COURT: SORRY.

 

15 MR. BOYLE: NO PROBLEM. LAST SENTENCE OF PAGE 6.

 

16 THE COURT: HERE, THE COMPLAINT.

 

17 MR. BOYLE: YES. I THINK THAT FIRST ONE — I MEAN, I

 

18 THINK WE ALL AGREE, IT’S NOT A BREACH OF CONTRACT. IT’S

 

19 REALLY A TORT, YOU KNOW, BREACH OF CONTRACT OF DUTIES. I

 

20 DIDN’T WANT IT TO CREATE A PROBLEM LATER.

 

21 THE COURT: OKAY.

 

22 THE CLERK: YOUR HONOR, IT’S ALSO HERE FOR CASE

 

23 MANAGEMENT CONFERENCE.

 

24 THE COURT: OKAY. LET’S CONTINUE THAT 45 DAYS. WHAT

 

25 DO YOU THINK?

 

26 MR. BOYLE: WE HAVE 20 TO RE-PLEAD.

 

27 THE COURT: RIGHT, OR 60. WHAT DO YOU SUGGEST?

 

28 MR. BOYLE: WHAT’S THE TIME FRAME? IT WOULD BE NICE

 

1 TO MAYBE HAVE IT ON THE SAME DAY AS THEIR NEXT DEMURRER.

 

2 THE COURT: WHAT I HAVE TO DO IS I HAVE TO SET A

 

3 CONTROL DATE HERE, SO I WANT TO SET THE ONE DAY. IF YOU GET

 

4 A HEARING DATE ON A DEMURRER, THEN YOU CAN FILE A STIP AND

 

5 ORDER TO CONTINUE OR ADVANCE THE CMC TO THE SAME DATE, BUT I

 

6 NEED TO SET A DATE TODAY.

 

7 MR. BOYLE: WE CAN SAY 45 BECAUSE YOU WILL FILE THE

 

8 DEMURRER WITHIN THAT, AND THEN WE CAN CONTACT THE COURT AND

 

9 SAY: WHY DON’T WE MOVE IT ALL.

 

10 THE COURT: OR DO A STIP AND ORDER TO CONTINUE THE

 

11 CASE MANAGEMENT CONFERENCE TO WHATEVER DATE YOU ULTIMATELY

 

12 GET FOR THE DEMURRER, BUT I WANT TO KEEP A CONTROL DATE ON

 

13 IT. SO 45, MARCH 22ND. OKAY. MARCH 22ND.

 

14 MR. PUTNAM: YES.

 

15 THE COURT: AT 8:45.

 

16 DOES SOMEBODY WANT TO GIVE NOTICE? I ORDERED

 

17 MOVING PARTY TO GIVE NOTICE, UNLESS YOU WANT TO WAIVE IT.

 

18 MR. PUTNAM: WAIVE NOTICE, YOUR HONOR.

 

19 I GUESS YOU HAVE TO WAIVE IT.

 

20 MR. BOYLE: WE WILL WAIVE NOTICE.

 

21 THE COURT: OKAY. THANK YOU.

 

22

 

23 (PROCEEDINGS CONCLUDED.)

 

24 * * * * *