Brian Ayscough V Michael Jackson

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Brian Ayscough V Michael Jackson




Ayscough & Marar v. Jackson

Filed 2/23/09 Ayscough & Marar v. Jackson CA2/4



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





Plaintiffs and Respondents,



Defendants and Appellants.



(Los Angeles County

Super. Ct. No. YC052627)



APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed.

Mundell, Odlum & Haws, and Thomas C. Mundell, for Defendants and Appellants.

Nemecek & Cole, Michael McCarthy, Mark Schaeffer, and Janette S. Bodenstein, for Plaintiffs and Respondents.

After the trial court struck appellantsaffirmative defenses as a discovery sanction, appellants agreed to the entry of judgment. They now appeal.


On February 21, 2006, respondent law firm, Ayscough & Marar (A&M;), filed an action for breach of contract against appellants Michael J. Jackson, MJJ Productions, Inc., and Fire Mountain Services, LLC. The complaint alleged that appellants engaged A&M; to represent them in specified civil litigation and failed to compensate A&M; in accordance with their written agreement. On August 29, 2006, appellant initiated a cross-action against A&M; and respondents Brent Ayscough and Sidney Lanier.[1] Trial was set for June 26, 2007.

Respondents sought and obtained an order compelling Jackson to submit to a deposition, which occurred on February 28, 2007. On April 18, 2007, appellants filed their first amended answer to A&Ms; complaint, which asserted several defenses, including unclean hands, violations of the Business and Professions Code and California Rules of Professional Conduct by A&M;, and the necessity for an offset. A&M; propounded written discovery to appellants regarding the defenses, and sought to depose appellants. Appellants failed to appear for the noticed depositions, and sought a protective order shielding them from the depositions and A&Ms; written discovery. A&M; filed motions for orders compelling the depositions and the production of documents at the depositions.

On June 1, 2007, A&M; filed several motions in limine, including a motion for an order excluding all evidence and testimony not disclosed by appellants prior to the discovery cutoff. On June 12, 2007, the trial court denied appellants motion for a protective order and granted A&Ms; motions to compel. In so ruling, the trial court found that Jackson had improperly terminated his February 2007 deposition, and awarded monetary sanctions against appellants and their counsel.

On June 25, 2007, A&M; filed an ex parte application for an order striking appellants first amended answer, entering a default judgment, or imposing evidentiary or issue sanctions for appellants refusal to comply with the June 12, 2007 order. The application asserted that appellants had failed to appear for their depositions following the June 12, 2007 order, and had otherwise not responded to A&Ms; demands for written discovery. On June 25, 2007, appellants counsel appeared before the trial court, which ruled that the ex parte [was] continued as a motion in limine.

On June 26, 2007, the date set for trial, appellants filed an opposition to plaintiffs motion regarding the failure of defendants to appear for a court-ordered deposition. The opposition argued that terminating sanctions would not be appropriate, because appellants failure to appear for the depositions was not entirely willful and because the deponents would not provide fresh evidence relevant to appellants defenses. After hearing oral argument, the trial court ordered the defenses asserted in the first amended answer stricken, reasoning that appellants misconduct in discovery had impaired A&Ms; ability to address the defenses. Pursuant to appellants stipulation, judgment was entered in respondents favor on July 13, 2007.


Appellants contend that the trial court erred in striking their affirmative defenses as a discovery sanction.

A. Governing Principles

Terminating sanctions – which include the striking of portions of a partys pleading ( 2023.030, subd. (d)(1)) – may in some circumstances be imposed as a sanction for discovery abuse. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Misuses of the discovery process include the following: (d) Failing to respond or submit to an authorized method of discovery. [] . . . [] (f) Making an evasive response to discovery. [] (g) Disobeying a court order to provide discovery. (Code Civ. Proc.,[2] 2023.010.)

The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be wilful [citation]. [Citation.] (Do It Urself Moving & Storage, Inc.v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.)

B. Appellants Contentions

Appellants challenge the sanctions on two grounds. As we explain below, neither has merit.[3]

1.     Sanctions Upon Ex Parte Application

Appellants contend that the trial court improperly imposed terminating sanctions on the basis of an ex parte application. We disagree. Generally, discovery sanctions may not be ordered ex parte. (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 208 (Sole Energy Co.); Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 5-6 (Alliance Bank); Duggan v. Moss (1979) 98 Cal.App.3d 735, 743 (Duggan). As the court explained in Alliance Bank, such sanctions contravene the due process requirements of the state and federal Constitutions and the procedural requirements of the discovery statutes.[4] (Alliance Bank, supra, 161 Cal.App.3d at p. 6.) Nonetheless, if the person against whom ex parte sanctions are sought voluntarily appears at the hearing on the application and opposes it on the merits, the person may forfeit his or her challenges on appeal to sanctions imposed following the hearing. (Id. at pp. 5-6.)

We find dispositive guidance on appellants contention from Alliance Bank. There, the trial court, in ordering the defendant to appear for a deposition, ruled that the plaintiff could seek terminating sanctions upon an ex parte application and two days written notice if the appellant did not comply with the order. (Alliance Bank, supra, 161 Cal.App.3d at pp. 3-4.) When the defendant did not attend the deposition, the plaintiff applied ex parte for sanctions and gave the requisite notice. (Id. at pp. 5-6.) After the defendant appeared (through his counsel) at the hearing on the application and opposed it on the merits, the trial court issued terminating sanctions against him by striking his answer and entering a default. (Id. at pp. 4-5, 7-9.)

The appellate court held that the trial courts initial ruling – which permitted the plaintiff to seek sanctions ex parte – was invalid for being in excess of the courts jurisdiction, but nonetheless affirmed the sanctions order. (Alliance Bank, supra, 161 Cal.App.3d at p. 6.) The court concluded that the defendant, by appearing at the hearing on the ex parte application and opposing it on the merits, had forfeited any contention regarding defective notice, and impliedly consented to any exercise of jurisdiction in excess of the courts authority. (Id. at pp. 7-9.) In so concluding, the court distinguished an earlier case, Duggan, supra, 98 Cal.App.3d 735, in which the appellate court reversed terminating sanctions obtained ex parte as invalid and in excess of the trial courts discretion because the sanctioned party had been given no opportunity to oppose them (id. at pp. 738-739). (Alliance Bank, supra, 161 Cal.App.3d at p. 9.)

Here, the trial court told appellants that it would treat A&Ms; ex parte application as an in limine motion, and continued the hearing on it. The following day, appellants filed an opposition to the application/motion, appeared at the hearing on it, and opposed it on the merits. In view of Alliance Bank, they forfeited their challenges regarding defective notice and consented to the trial courts exercise of its jurisdiction beyond its authority.

Pointing to Sole Energy Co., supra, 128 Cal.App.4th 199, appellants suggest that the order granting terminating sanctions was not merely invalid for being in excess of the courts jurisdiction (Alliance Bank, supra, 161 Cal.App.3d at p. 6.), but void. We disagree. As this court recently explained in Lee v. An (2008) 168 Cal.App.4th 558, 563 (Lee), the term void is ordinarily reserved for actions outside the courts fundamental jurisdiction over the subject matter and the parties. In contrast, when a statute authorizes a prescribed procedure and the court acts contrary to the authority conferred, the court exceeds its jurisdiction. (Id. at p. 564.)

Because an act in excess of jurisdiction is ordinarily voidable, rather than void, a person who has consented to the exercise of jurisdiction beyond the trial courts authority may be estopped from challenging the act on appeal. (Conservatorship of OConnor (1996) 48 Cal.App.4th 1076, 1087-1088, disapproved on another ground in Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 280; 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, 333, pp. 949-953.) Although the court in Duggan characterized ex parte terminating sanctions as acts in excess of jurisdiction, the first court to conclude that they are, in fact, voidable was the court in Alliance Bank, as this question did not arise in Duggan.

In Sole Energy Co., the trial court, in ordering the defendants to appear for their depositions, warned them that failure to comply would result in sanctions. (Sole Energy Co., supra, 128 Cal.App.4th at pp. 203- 204.) When the defendants did not attend the depositions, the plaintiffs served the defendants with a notice of a motion for unspecified sanctions, and simultaneously applied ex parte for an order shortening time for a hearing on the motion. (Id. at pp. 203-204.) The trial court granted the ex parte application on the date it was filed and immediately held a hearing on the sanctions motion, at which it struck the defendants answers and ordered the entry of their defaults. (Ibid.) Although the opinion in Sole Energy Co. does not state whether the defendants appeared at the hearing, they apparently made no appearance, as the appellate court concluded they had no notice that they faced terminating sanctions and no opportunity to be heard on them. (Id. at pp. 208, 210.) Relying on Alliance Bank and Duggan,the appellate court characterized the sanctions orders as in excess of the trial courts jurisdiction, void, and invalid. (Sole Energy Co., supra, 128 Cal.App.4th at pp. 208-210.) As we explained in Lee, we do not regard Sole Energy Co. as authority on whether such orders are voidable, rather than void, as it does not discuss this issue.[5] (Lee, supra, 168 Cal.App.4th at p. 566.)

Appellants also contend that they objected to A&Ms; ex parte application for sanctions at the first opportunity. When A&M; filed the ex parte application on June 25, 2007, appellants unsuccessfully requested a brief continuance of the trial, which was set to begin the next day. Appellants argue that the denial of the continuance was prejudicial and operated to preserve their contentions on appeal. We disagree.

The record discloses that the trial court conducted a hearing on Monday, June 25, 2007, the day before the start of trial. At the beginning of the hearing, defense counsel briefly referred to a potential agreement with opposing counsel. The trial court addressed other matters, including the parties failure to submit joint trial materials, and ruled that the ex parte application was continued as a motion in limine.

After this ruling, the following exchange occurred:

Mr. Mundell [defense counsel]: Your Honor, one further thing just to let the court know. You had ordered us to get set for a settlement conference, and you said you would be available to sit on that. We discovered last week you were dark so we endeavored to have one in front of Judge Kwong. And we set one in front of Judge Kwong this morning at 9:00 oclock. [] . . .  That was the agreement I started to tell you about. We reached an agreement that[,] in light of [the] ex parte, which asks for draconian sanctions on just ex parte notice or, in the alternative, for an order shortening time. [] What we would do is the following: I realize this is subject to the courts agreement. We had agreed that we would trail for a week on the trial.

The Court: Not a chance.

Mr. Mundell: I understand.

The Court: Zero, zero.

[Mr. Mundell]: I understand. It still affects Judge Kwong. I would file opposition to that and they would do a reply by Friday. In the meantime we would go down to Judge Kwong, who is waiting for us and have our MSC.

The Court: You can have an MSC if you want. If I dont dismiss it or enter default Im – if Judge Kwong is available and willing to do it, yes, you are ordered [to participate in a settlement conference.]

Appellants thus raised no objection to the ex parte application/motion; they requested a continuance of the trial to conduct a settlement conference and to permit them to file an opposition to the application/motion prior to Friday, June 29, when A&Ms; reply would be due. To the extent appellants contend that the trial court erred in denying the continuance, their contention fails for want of a showing of prejudice, which is not presumed on appeal. (Eastwood v. Froehlich (1976) 60 Cal.App.3d 523, 529.) When appellants requested the continuance, they offered no argument that its denial would prejudice their ability to oppose the application/motion. After the trial court denied the request, appellants filed an opposition the next day and participated in the hearing on the merits without suggesting they suffered prejudice for want of time to prepare their opposition.[6]

To the extent appellants contend that their request for a continuance operated to preserve their challenges to ex parte discovery sanctions, their contention also fails. As explained above, appellants never objected to the application/motion. Moreover, as the court explained in Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288-1289, a party subject to a request for discovery sanctions may forfeit its contention regarding notice even though it objected to improper notice prior to the hearing on the request. Forfeiture can occur if, after raising an initial objection to notice, the party appears at the appropriate hearing and opposes the motion on the merits – but without making any request for a continuance or demonstrating prejudice from the defective notice. (Ibid., italics omitted.) Here, as we have explained, the trial court properly denied appellants initial request for a continuance because they offered no argument they needed it in order to prepare their opposition. As they appeared at the hearing on the application/motion and again raised no suggestion of prejudice, they have failed to preserve their contentions.[7]

2. Insufficient Findings

Appellants contend that the trial courts findings are insufficient to support the striking of their affirmative defenses. Generally, the trial court may impose terminating sanctions as a sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (Lang v. Hochman, supra, 77 Cal.App.4th at p. 1246.) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Id. at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed when party repeatedly failed to comply with single discovery order]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491 (Laguna Auto Body), disapproved on another ground in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4 [terminating sanctions imposed when party violated single discovery order and several discovery statutes].)

Here, the trial court determined that appellants had not appeared for court-ordered depositions and had breached an agreement between the parties counsel that obliged appellants to provide supplemental answers to A&Ms; written discovery. Regarding this misconduct, the trial court stated: Im so finding that it was a willful failure [and] that all of that discovery was directed towards the affirmative defenses. And, therefore, the appropriate remedy is not to enter the default of the [appellants] but, rather, to strike those affirmative defenses.

Appellants contend the trial court erred in imposing terminating sanctions because their failure to produce supplemental answers, taken in isolation, does not support such sanctions, as they violated no order to produce the answers. We disagree. Ordinarily, noncompliance with a discovery order is a prerequisite for the imposition of terminating sanctions. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 277-279.) That condition is met here, as appellants failed to appear for court-ordered depositions that A&M; had noticed to obtain discovery regarding appellants affirmative defenses.

The fact that the trial court also considered appellants related discovery abuse in imposing terminating sanctions does not vitiate its order. In Laguna Auto Body, the plaintiffs were ordered to respond to interrogatories, but they repeatedly failed to do so. (Laguna Auto Body, supra, 231 Cal.App.3d at pp. 483-484.) The plaintiffs also failed to appear for noticed depositions. (Id. at p. 484.) In terminating the plaintiffs action as a discovery sanction and denying reconsideration of this ruling, the trial court relied on the plaintiff[s] actions as a basis for the sanctions. (Id. at p. 486.) The appellate court affirmed, reasoning that the plaintiffs had violated a court order and various discovery statutes. (Id. at pp. 487-491.) The court rejected the plaintiffs contention that dismissal for failing to attend the noticed deposition was an inadequate basis for the sanctions order, pointing to plaintiffs noncompliance with the order regarding the interrogatories. (Id. at pp. 489-490.)

In view of Laguna Auto Body, we see no abuse of discretion. The trial court, in assessing whether terminating sanctions were warranted, was authorized to consider[] the totality of the circumstances. (Lang v. Hochman, supra, 77 Cal.App.4th at p. 1246.) Aside from determining that appellants had failed to appear for court-ordered depositions, the trial court found that appellants had violated an agreement to provide supplemental discovery responses relevant to appellants affirmative defenses. Nothing before us suggests that the trial court viewed the violation of this agreement as an independent basis for the sanctions. There was no error.


The judgment is affirmed. Respondents are awarded their costs.



 Tuesday, February 24, 2009

Page 1

Court Upholds Discovery Sanctions Against Michael Jackson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


We concur:





[1] Appellants cross-complaint was dismissed without prejudice pursuant to a stipulated order on June 12, 2007.

[2] All further statutory references are to the Code of Civil Procedure.

[3] Appellants reply brief asserts for the first time on appeal an additional contention, namely, that the trial courts treatment of the ex parte application as a motion in limine contravened local court procedural rules. Because this contention is not found in their opening brief, they have forfeited it. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal,  701, pp.769-771.) Moreover, it fails on the merits for the reasons explained below (see pt. B.1., post).

[4] Section 2023.030 provides in pertinent part: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .

Section 2023.040 provides: A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.

[5] We reach the same conclusion regarding Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, which appellants cite in their reply brief. In Parker, the plaintiff walked out of his court-ordered deposition prior to its termination. (Id. at p. 292.) As the plaintiff left, defense counsel said that he would seek an ex parte order to compel him to return. (Id. at p. 296.) The plaintiff responded, I dont care what you do . . . Im not going to be participating. Im going to be back in Atlanta. (Ibid.) Two days later, at a hearing the plaintiff apparently did not attend, the trial court, ex parte, issued an order to compel and awarded monetary sanctions against the plaintiff. (Id. at p. 292.) Pointing to Sole Energy Co., the appellate court reversed the sanctions order as void. (Sole Energy Co., supra, 128 Cal.App.4th at p. 296.) As the court did not discuss whether the order was voidable, Parker offers no support for the proposition that such orders are void, rather than voidable.

[6] On appeal, appellants attempt to show prejudice by suggesting that had the trial court granted the continuance, they might have tendered additional evidence in support of their opposition, which argued, inter alia, that the depositions would have yielded no new information material to appellants defenses. As appellants made no offer of proof regarding this evidence before the trial court, they have forfeited this contention. (See Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 382 [contention that trial court improperly denied appellant opportunity to present additional evidence at trial forfeited for want of offer of proof]; People v. Hill (1971) 19 Cal.App.3d 306, 320 [trial court properly denied defendants request for continuance to secure presence of witnesses when defendant failed to make adequate offer of proof regarding witnesses testimony].)

[7] Pointing to Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645 and Woolls v. Superior Court (2005) 127 Cal.App.4th 197, appellants contend that they did not forfeit their objections to the application/motion by failing to raise them at the hearing on June 26, 2007, because the ruling on their continuance request rendered such objections futile. Both cases are distinguishable: in each, the appellate court held that a party had not forfeited its objection to a proceeding by participating in the proceeding after the trial court rejected the partys specific objection to it. (Boyle v. CertainTeed Corp., supra, 137 Cal.App.4th at p. 650; Woolls v. Superior Court, supra, 127 Cal.App.4th at p. 204, fn. 3.) As we have explained, appellants never objected to the application/motion on the grounds they assert on appeal.

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