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KELLER/ANDERU LLP -
Jennifer L. Keller(SBN 84412) R)FILED
E-mail:[email protected] Superior Court of California
Kay Anderle(SBN 143480) County of Los Angeles
E-mail: [email protected]
18300 Von Kannan Avenue, Suite 930
0 12017

Nov
Irvine, California 92612 officer/Clerk
Sherri R.Carter,Executive
Tel.: (949)476-8700 Fax: (949)476-0900 U. ,Deputy
By

a,--)
Veronica Hillard
BROWNE GEORGE ROSS LLP
Eric M. George(SBN 166403)
E-mail: [email protected]
Ira Bibbero(SBN 217518)
E-mail: [email protected]
Abigail Page(SBN 193180)
E-mail: [email protected]
2121 Avenue of Stars, Suite 2400
Los Angeles, California 90067
Tel.: (310)274-7100 Fax: (310)275-5697
Attorneysfor Defendant, Michael S. Ovitz

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES,CENTRAL CIVIL WEST

IN RE PELLICANO CASES Case No. BC316318

Assigned to the Honorable Elihu M. Berle
ANITA BUSCH, Department 323
[Related to BC316459, BC34590,
Plaintiff, BC350832, BC354840, BC356529,
BC356722, BC358270, BC358271,
V. BC361319, BC36.162]

ANTHONY PELLICANO; ALEXANDER DEFENDANT MICHAEL OVITZ'S REPLY

PROCTOR; MARK ARNESON; CITY LOS IN SUPPORT OF MOTION FOR AN
ANGELES;SBC TELECOMMUNICATIONS, ORDER SETTING A SEPARATE TRIAL
INC., formerly operating as Pacific Bell FOR DEFENDANT ANTHONY
Telephone Company, a corporation; CLIENT PELLICANO
DOE;LAW FIRM DOE; and DOES I through
100 inclusive, Date: November 8, 2017
Time: 2:00 p.m.
Defendants, Dept.: 323

Action Commenced: May 28, 2004

Final Status Conference: January 9, 2018
Trial Date: February 5, 2018

DEFENDANT MICHAEL OVITZ'S REPLY IN SUPPORT OF MOTION FOR AN ORDER SETTING A

SEPARATE TRIAL FOR DEFENDANT ANTHONY PELLICANO
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1. INTRODUCTION
Plaintiffs opposition underscores the need for separate trials to avoid undue prejudice to

defendant Michael Ovitz and to promote judicial economy. Plaintiff does not dispute that separate

trials would serve these purposes. Indeed, she all but admits she named Mr. Pellicano as a

defendant not because she expects to recover anything from him, but because she intends to use

evidence against Mr. Pellicano, who has no money and cannot defend himself at trial, to prejudice

the jury against Mr. Ovitz, the "deep pockets" from whom Plaintiff seeks tens of millions of

dollars(and who cannot speak for Mr. Pellicano).

Mr. Ovitz does not seek to preclude Plaintiff from presenting admissible evidence relevant

to her claims against him. But at least some of the evidence Plaintiff seeks to present against Mr.

Pellicano will be neither admissible against nor relevant to Mr. Ovitz. Separate trials will prevent

Plaintiff from introducing, through Mr. Pellicano's empty chair, evidence that would be unduly

prejudicial and irrelevant against Mr. Ovitz. This will simplify trial and prevent reversible error.

Mr. Ovitz respectfully requests the Court grant the motion.

11. MR. OVITZ HIRED NM. PELLICANO TO INVESTIGATE PLAINTIFF, BUT A

THIRD PARTYNOT MR. OVITZHIRED MR. PELLICANO TO THREATEN
PLAINTIFF

Plaintiffs summary of the case is misleading. Mr. Ovitz hired Mr. Pellicano only to

investigate Plaintiff. To the extent that Mr. Pellicano threatened Plaintiff in any way, it was at the

behest of a third party, not Mr. Ovitz. Plaintiffs opposition incorrectly assumes a principal-agent

relationship between Mr. Ovitz and Mr. Pellicano (and Mr. Proctor) as to the threats against
Plaintiff. (See, e.g., Opp. at p. 2.) That incorrect assumption pervades Plaintiffs flawed legal

analysis.

III. THE COURT SHOULD ORDER A SEPARATE TRIAL FOR DEFENDANT

. ANTHONY PELLICANO

In a multi-party case, such as this one, the Court may order separate trials in the interest of

justice "to prevent any party from being embarrassed, delayed, or put to undue expense." (Code

Civ. Proc., 379.5.) Likewise, the Court,"in furtherance of convenience or to avoid prejudice, or

when separate trials will be conducive to expedition and economy, may order a separate trial of

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DEFENDANT MICHAEL OVITZ'S REPLY IN SUPPORT OF MOTION FOR AN ORDER SETTING A
SEPARATE TRIAL FOR DEFENDANT ANTHONY PELLICANO
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any cause of action." (Co~e Civ. Proc., 1048, subd. (b).) Here, separate trials would promote

judicial economy and prevent undue prejudice.

A. Separate Trials Would Bar Plaintiff From Presenting Irrelevant, Inadmissible,

and Unduly Prejudicial Evidence.But Not Relevant and Admissible
EvidenceAgainst Mr. Ovitz.

With no money to even appear at trial, Mr. Pellicano will be an "empty chair" defendant

against whom Plaintiff will essentially obtain a default judgment. (See Au-Yang v. Barton (1999)

21 CalAth 958, 963 [uncontested trials are "in the nature of a default"].) It will be bad enough that

Plaintiff will present evidence against Mr. Pellicano, who cannot defend himself and who no one

else can speak for. (See ibid ["Proceeding to judgment in the absence of a party is an
.
extraordinary and disfavored practice in Anglo-American jurisprudence"].) But even worse,

without separate trials, Plaintiff will seek to introduce unduly prejudicial evidence through Mr.

Pellicano's empty chair against Mr. Ovitz. Neither defendant will have the 'ability to fight back

against that evidence, which the jury will undoubtedly view as uncontested, even though some of

the evidence would be wholly inadmissible, immaterial, and unduly prejudicial as to Mr. Ovitz.

This undesirable result is why courts have held that "admissions implied from the default of one

defendant" do not bind other defendants at trial. (Western Heritage Ins. Co. v. Superior Court

(2011) 199 Cal.App.4th 1196, 1211.) In fact, "even when the basis for the action against the

codefendants is vicarious liability arising from the acts of the defaulting defendant," the party's

"default does not bind nondefaulting codefendants." (Ibid; see also Morehouse v. Wanzo (1968)

266 Cal.App.2d 846, 853 [holding "an employer liable under the doctrine of Respondeat

superior[] may take advantage of any favorable aspects of the judgment against the employee, but

he is not bound by the issues resolved against the employee by the latter's default."].)

By moving for a separate trial, Mr. Ovitz does not seek to prevent Plaintiff from

introducing any admissible and relevant evidence she might have against Mr. Ovitz. Instead, Mr.

Ovitz seeks only to bar Plaintiff from introducing highly prejudicial evidence, which would be

inadmissible and irrelevant as to Mr. Ovitz, through Mr. Pellicano's empty chair. If some of

Plaintiffs evidence might be (as she claims) independently admissible against Mr. Ovitz under an

exception to the hearsay rule, Plaintiff can introduce that evidence at Mr. Ovitz's trial regardless

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DEFENDANT MICHAEL OVITZ'S REPLY IN SUPPORT OF MOTION FOR AN ORDER SETTING A
SEPARATE TRIAL FOR DEFENDANT ANTHONY PELLICANO
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of whether Mr. Mlicano'is a co-defendant in the same trial. Plaintiff does not dispute Mr.

Pellicano's financial state and that he is presumably "judgment proof." That Plaintiff opposes

separate trials, and the streamlining of this case, speaks volumes of her true intentions.
k

B. Plaintifrs Evidence Against Mr. Pellicano is Not Admissible or Relevant

Against Mr. Ovitz, but Would Unduly Prejudice Mr. Ovitz.

Plaintiffs opposition underscores the problem if separate trials are not ordered. Contrary

to her argument,.Plaintiffs evidence against Mr. Pellicano is not made admissible or relevant to

Mr. Ovitz merely because she incorrectly alleges that Mr. Pellicano threatened her Mr. Ovitz's

as
agent. Plaintiff claims that "[i]f there is a factual basis upon which the jury can find an agency or

respondeat superior basis, then the jury must receive the agency evidence and then decide what

conduct was within the scope of his retention." (Opp. at p. 2.) But Plaintiffs legal citations do

not support her sweeping claim. As an initial matter, Plaintiff bears the burden to "offer enough

evidence to support a finding of the requisite authority," and "[flhe agency relationship and the

agent's authority cannot be proved by the alleged agent's out-of-court statements." (Wegner,

Fairbank, & Epstein, Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2016), TT

8:1176, 8:1177.) Only if Plaintiff satisfies that burden might the agent's statements be admissible

against the principal. (See id, T 8:1173 ["the hearsay is competent evidence of a party admission

only upon proofofthe agent's authority to speak for the party on the matter"].)

Plaintiffs reliance on EvidenceCode sections 1222 and 1224 does not cure this problem.1

In Markley v. Beagle (1967)66 Cal.2d 95 1, the Supreme Court held that an employee's statements
made a year after an accident occurred, when the employee was no longer employed, were not

1 Evidence Code section 1222 provides,"Evidence of a statement offered against a party

is not made inadmissible by the hearsay rule if. (a) The statement was made by a person
authorized by the party to make a statement or statements for him concerning the subject matter of
the statement; and (b) The evidence is offered either after admission of evidence sufficient to
sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to
the admission of such evidence."
Evidence Code section 1224 provides,"When the liability obligation, or duty of a party
to a civil action is based in whole or in part on the liability, obligation, or duty of the declarant, or
when the claim or right asserted by a party to a civil action is barred or diminished by a breach of
duty by the declarant, evidence of a statement made by the declarant is as admissible against the
party as it would be if offered against the declarant in an action involving that liability, obligation,
duty, or breach of duty."
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DEFENDANT MICHAEL OVITZ'S REPLY IN SUPPORT OF MOTION FOR AN ORDER SETTING A
SEPARATE TRIAL FOR DEFENDANT ANTHONY PELLICANO -

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admissible under Evidence Code sections 1222 or 1224. (Id. at p. 957-958.) The Supreme Court

held that Evidence Code section 1224's predecessor2 "did not change the settled and apparently

universally followed rule that hearsay statements of an agent or employee not otherwise

admissible against the principal or employer are not made admissible merely because they may

tend to prove negligence of the agent or employee that may be imputed to the principal or

employer under the doctrine of respondeat superior." (Id. at p. 959.) As the Court explained, "[t]
he rule that would allow an agent, after a transaction is closed, to admit away the rights of his

principal, would be too dangerous to be tolerated for a moment." (Ibid.)

Other cases and treatises are in accord with Markley. (See Taylor v. Socony Mobil Oil Co.

(1966)242 Cal.App.2d 832, 834 ["The declarations of an agent are admissible only when made in

regard to a transaction, in the course of his agency, pending at the very time of the declarations,

and where the statements or declarations are a part of the Res gestae."]; Miller v. Anson-Smith

Construction Co. (1960) 185 Cal.App.2d 161, 166 ["[D]eclarations or admissions by an agent, of

his own authority, and not accompanying the making of a contract, or the doing of an act, in behalf

of his principal, nor made at the time he is engaged in the transaction to which they refer, are not

binding upon his principal ... and are not admissible in evidence, but come within the general rule

of law, excluding hearsay evidence"]; Thompson v. County ofLos Angeles(2006) 142 Cal.AppAth

154, 169; see also generally Witkin, California Evidence (5th Ed.), Hearsay, 121 ["The agent's

declarations cannot prove thefact of agency or authority"]; 122 [agent's statement admissible

against principal only "if agent had express or implied authority to make that kind of statement for

the principal"]; 123 [ordinarily, "agent's admissions not competent evidence against the

employer," but "agent high in the 'hierarchy,' such as a corporate officer, can make binding

declarations"].)

Here, Mr. Pellicano was not acting within the scope of his agency relationship with Mr.

Ovitz, who hired Mr. Pellicano only to investigate Plaintiff. A third party hired Mr. Pellicano

specifically to threaten Plaintiff, and Proctor threatened Plaintiff under Mr. Pellicano's

2
Evidence Code sections 1224 and 1302 codified the holdings of the cases applying
their predecessor, Code of Civil Procedure section 1851. (See Recommendation Proposing an
Evidence Code (Jan. 1965) Cal. Law Revision Com. Rep.(1965) p. 230.)
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DEFENDANT MICHAEL OVITZ'S REPLY IN SUPPORT OF MOTION FOR AN ORDER SETTING A
SEPARATE TRIAL FOR DEFENDANT ANTHONY PELLICANO
instructions and wlifle they were acting within the scope of their agency relationship with a third
party. Accordingly, had Plaintiff sued the correct person, Mr. Pellicano's conviction, plea, and

other statements might be admissible against that third party. But because Plaintiff cannot satisfy
her burden to show the requisite authority between Mr. Pellicano and Mr. Ovitz, none of that
evidence can be used against Mr. Ovitz under Evidence Code sections 1222 or 1224.

IV. CONCLUSION
A separate trial for Mr. Pellicano would serve the interests of justice by avoiding undue

prejudice to Mr. Ovitz and by promoting judicial economy. This Court should grant the motion.

Dated: November 1,'2017 KELLER/ANDERLE LLP

By:
Jenfifer L. Keller
Atibrneysfor Defendant
Michael S. Ovitz

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DEFENDANT MICHAEL OVITZ'S REPLY IN SUPPORT OF MOTION FOR AN ORDER SETTING A
SEPARATE TRIAL FOR DEFENDANT ANTHONY PELLICANO
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PROOF OF SERVICE
Anita Busch v. Anthony Pellicano, et aL
BC316318

STATE OF CALIFORNIA,COUNTY OF ORANGE

At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Orange, State of California. My business address is 18300 Von
Karman Ave, Suite 930, Irvine, CA 92602.

On November 1, 2017, 1 served true copies ofthe following document(s) described as

DEFENDANT MICHAEL OVITZ'S REPLY IN SUPPORT OF MOTION FOR AN

ORDER SETTING A SEPARATE TRIAL FOR DEFENDANT ANTHONY PELLICANO

on the interested parties in this action as follows:

SEE ATTACHED SERVICE LIST

BY ELECTRONIC TRANSMISSION (VIA CASE HOME PAGE): Based on a court

order or an agreement of the parties to accept service by e-mail or electronic transmission, I
caused the documents to be sent to the person(s) so indicated in the Service List. I did not receive,
within a reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.

BY MAIL(where indicated): I enclosed the document(s) in a sealed envelope or package

addressed to the persons at the addresses listed in the Service List and placed the envelope for
collection and mailing, following our ordinary business practices. I am readily familiar with the
practice of Keller/Anderle LLP for collecting and processing correspondence for mailing. On the
same day that correspondence is placed for collection and mailing, it is deposited in the ordinary
course of business with the United States Postal Service, in a sealed envelope with postage fully
prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was
placed in the mail at Irvine, California.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on November 1, 2017, at Irvine, California.

Courtney L. McK*

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PROOF OF SERVICE
i
 Service List
October 2, 2017

Pellicano Cases(Busch v. Pellicano)

Los Angeles County Superior Court Case No. BC316318 - Hon. Elihu M. Berle, Dept. 323

Gleam 0. Davis, Esq. [email protected] State Bar ID# 123047

AT&T SERVICES, INC., LEGAL Tel:(213)743-6710 DefendantAT&T
DEPARTMENT Fax:(213)748-1230
2260 East Imperial Highway, Blvd
LA5) MS N346
El Segundo, CA 90245-3501

Byron T. Ball, Esq. [email protected] State Bar ID# 150195

THE BALL LAW FIRM Tel:(310)446-6148 Plaintiffs Class Counsel;Plaintiff
10866 Wilshire Blvd., Ste 1400 Fax:(310)441-5386 Keith Carrodine
Los Angeles, CA 90024

Eric M. George, Esq. [email protected] State Bar ID# 166403

Ira Bibbero, Esq. [email protected] State Bar ID# 217518
Abigail Page, Esq. a page@ bgrfirm.com State Bar ID# 193180
BROWNE GEORGE ROSS LLP Tel:(310) 274-7100 Defendant Michael S. Ovitz
2121 Avenue of the Stars, 24th Floor Fax:(310) 275-5697
Los Angeles, CA 90067

Marc S. Williams, Esq. rnzdUiams(@cohen-williams.com State Bar ID# 198913

COHEN WILLIAMS WILLIAMS LLP Tel:(213) 232-S160 Specially Appearing For Alexander
724 South Spring Street, 9th Floor Fax:(213) 232-5167 Proctor pursuant to CCP 583.220
Los Angeles, CA 90014

Gregory S. Dovel, Esq. State Bar ID# 135387

Julien Adams, Esq. [email protected] State Bar ID# 156135
DOVEL & LUNER, LLP Tel:(310)656-7066 Plaintiff Bo Zenga
201 Santa Monica Blvd., #600 Fax:(310)656-7069
Santa Monica, CA 90401-2212

Jason M. Frank, Esq. [email protected] State Bar ID# 190957

Scott H. Sims, Esq. [email protected] State Bar ID# 234148
FRANK SIMS & STOLPER, LLP Tel:(949) 201-2400 Defendant Pacific Bell Telephone
19800 MacArthur Boulevard, Suite Fax:(949) 201-2405 Company
855
Irvine, CA 92612

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Evan Marshall, Esq. [email protected] State Bar ID# 82444
HERZOG, YUHAS, EHRLICH & Tel:(310)458-6660 Plaintiff Anita Busch
ARDELL, APC Fax:(310)458-9065
11400 West Olympic Boulevard,
Suite 1150
Los Angeles, CA 90064

Douglas L. Johnson, Esq. [email protected] State Bar ID# 209216

Jordanna Thigpen, Esq. jthigpen(@iiIlplaw.com State Bar ID# 232642
JOHNSON &JOHNSON LLP Tel:(310) 975-1080 Plaintiffs, Lisa Kerkorian, Monika
439 North Canon Drive, Ste. 200 Fax:(310) 975-1095 Zsibrita, Erin Finn, Michael Gerbosi,
Beverly Hills, CA 90210 Maxwell Russo,Samuel Russo, Jeff
M.Sturman, Ami Shaffir, Andrew
Miller, Joyce Miller, Robert Lobel,
and Leslie Lobel

Jennifer L. Keller, Esq. [email protected] State Bar ID# 84412

Kay Anderle, Esq. kanderle@l(elleratiderle.com State Bar ID# 143489
Jesse Gessin, Esq. [email protected] State Bar ID# 263889
KELLER/ANDERLE LLP Tel:(949)476-8700 Defendant, Michael S. Ovitz
18300 Von Karman Avenue Fax:(949)476-0900
Suite 930
Irvine, CA 92612-1057

Geoffrey Plowden, Esq. [email protected] State Bar ID# 146602

LOS ANGELES CITY ATTORNEY Tel:(213)978-8120 Defendant City of Los Angeles
200 North Main Street Fax:(213)978-8214
701 City Hall East
Los Angeles, CA 90012

Mark Arneson
(TO BE SERVED VIA MAIL) Tel:(310)383-0442 In Pro Per
5802 West 78th Street
Los Angeles, CA 90045-5705

Anthony Joseph Pellicano,#

21568-112
(TO BE SERVED VIA MAIL) In Pro Per
FCI Terminal Island
Federal Correctional Institution
P.O. Box 3007
San Pedro, CA 90733

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