|
|
Department LA 5 Court Convened at: 8:30:00 AM 3/28/2012
Honorable Mitchell L. Beckloff
M. Dewey , Deputy County Clerk M. Manskar , Deputy Sheriff
Elizabeth Virgoe, CSR 11732 , Reporter
BP117321 117 JACKSON, MICHAEL JOSEPH - DECEDENT
Letters of Administr PROBATE - OTHER
Petitioner(s): Tohme, Tohme R., Dr.
Attorney(s): Malingagio, Paul S., Esq.
Continuance Number: Continuance From:
Last Date Changed: Thursday, March 22, 2012 10:30:15 AM
Last Note Changed By: RWADA
To clear probate notes "filed documents" must be submitted to Rm 258, within time frames set forth in Rule 4.4(b) of LASC Rules. You may contact the Probate Attorney whose E-Mail address appears at the end of these notes, subject to compliance with all conditions governing the use of Interactive E-Mail. E-mail Rules are available in Rm 258 and on the Court's web site at www.LASuperiorCourt.org.
filed 3/8/12 - ex parte ok to file and set for
SUMMARY
Petnr is creditor
ATTY DECL FILED 3/8/12 - copy of civil action & probate petn attached
FACTS -
When it became clear that the personal representatives of the Jackson Estate were not going to resolve Petnr's meritorious claims, Petnr exercised his right to file a civil action for breach of contract and declaratory relief, seeking the just compensation as Jackson's manager to which he is entitled. On 2/1712, Petnr filed a civil action against the personal representatives of the Jackson Estate in the Superior Court, West District, Case No. SC 115988. On the same day, the Jackson Estate filed a Petition for Accounting, etc. against Petnr in the Jackson Estate probate proceeding, raising substantially the same issues as are raised in Petnr's Civil Lawsuit. Petnr's Civil Lawsuit was filed and served first and, pursuant to Probate Code Section 854, the Probate Petition should be abated so that the dispute between the parties may be resolved in the Civil Lawsuit.
MATTERS TO BE CLEARED - N/A
*********************************
OBJECTIONS FILED 3/8/12
OBJECTORS: JOHN BRANCA AND JOHN MCCLAIN
ATTYS: HOWARD WEITZMAN, ZIA MODABBER, JERYLL COHEN
*********************************
SUMMARY-OBJS
Objectors are co-extrs
FACTS-OBJS
There is no emergency requiring ex parte relief and Petnr has delayed bringing this application; Probate Code Section 854 is not applicable to this action. Probate Code Section 854 states:
"If a civil action is pending with respect to the subject matter of a petition filed pursuant to this chapter and jurisdiction has been obtained in the court where the civil action is pending prior to the filing of the petition, upon request of any party to the civil action, the court shall abate the petition until the conclusion of the civil action. This section shall not apply if the court finds that the civil action was filed for the purpose of delay."
Section 854 relief is not available here because (1) the Santa Monica Action was not pending at the time this petition was filed - this action was filed on the same day as the Santa Monica Action; (2) the Court in Santa Monica did not acquire jurisdiction prior to this action
being filed because it was not served on objectors until February 21, 2012; and (3) this action does not involve the identical "subject matter" as the Santa Monica Action. Petnr incorrectly contends that this action involves the same subject matter as the Santa Monica Action. Objectors are seeking an accounting from Petnr and allege in their First Cause of Action on information and belief that "Petnr, through his position as trusted advisor and fiduciary, took control and possession of Jackson's assets and wrongfully diverted and/or spent Jackson's funds and property for his own benefit, including for payment of Petnr's personal expenses, travel and entertainment. The amount that Respondent collected and disbursed is unknown to Executors and cannot be ascertained without an accounting. Objectors' Second and Third Causes of Action seek recovery of specific recovery that Petitioners are informed and believe that Petnr wrongfully took from Jackson. In contrast, according to Petnr, the Santa Monica Action involves Petnr's "contract claims against the Jackson Estate arising from three written agreements he had with Michael Jackson." Although there are some claims and allegations that overlap between this action and the Santa Monica Action, the only claims in this action that exclusively involve Probate Code Section 850 are Petitioners' First to Third Causes of Action, which are not at issue in the Santa Monica Action. In fact, the remedies provided by Probate Code Section 850 et seq. are not available in the non-probate court in Santa Monica. Thus, abating this action would materially impair Petitioners' ability to obtain an accounting and return of property by delaying these claim for at least over a year, or even more. Accordingly, it cannot be said that the two cases involve the same subject matter. Section 854 is therefore inapplicable and Petnr's application should be denied.
MATTERS TO BE CLEARED-OBJS - N/A
RELIEF
1. JTD order that the Jackson Estate's Probate Petition should be abated pending the outcome of Petnr's Civil Lawsuit;
2. JTD for a continuance of Petnr's obligation to respond to the Probate Petition until after this application for abatement may be heard
3. JTD OBJECTIONS - deny petn - Prob C Section 854 is not applicable
PROB ATTY COMMENTS: T/T
Rwada@lasuperiorcourt.org
RW (3/22)
RECOMMENDED DISPOSITION:RELATED ITEMS: 138
Order to be Prepared By Clerk: Attorney:
Department LA 5 Court Convened at: 8:30:00 AM 3/28/2012
Honorable Mitchell L. Beckloff
M. Dewey , Deputy County Clerk M. Manskar , Deputy Sheriff
Elizabeth Virgoe, CSR 11732 , Reporter
BP117321 138 JACKSON, MICHAEL JOSEPH - DECEDENT
Letters of Administr WRONGFULLY TAKEN PROPERTY (PC 859)
Petitioner(s): Branca, John McClain, John
Attorney(s): Weitzman, Howard, Esq
Continuance Number: Continuance From:
Last Date Changed: Thursday, March 22, 2012 10:57:36 AM
Last Note Changed By: RWADA
To clear probate notes "filed documents" must be submitted to Rm 258, within time frames set forth in Rule 4.4(b) of LASC Rules. You may contact the Probate Attorney whose E-Mail address appears at the end of these notes, subject to compliance with all conditions governing the use of Interactive E-Mail. E-mail Rules are available in Rm 258 and on the Court's web site at www.LASuperiorCourt.org.
Filed 2/17/12
SUMMARY
Petnrs are co-extrs
ntc/copy to affected parties filed 2/28/12
spec ntc/copy filed 2/28/12
FACTS -
After being hired by Michael Jackson as his Personal Manager in early 2008, Respondent Tohme took control of virtually all of Jackson's personal and professional affairs, then did as he pleased. With no oversight or supervision, Tohme quickly set about to and did install a far-reaching and very lucrative financial package for himself obtained as a result of a manifest breach of his fiduciary duties. The package consisted of a series of agreements that were obtained without any arms length negotiations, and without Jackson having independent legal counsel or giving informed consent, and not surprisingly called for substantial and unfair financial compensation to Tohme. Left unchecked until he was terminated in or about March 2009 (but no later than April 14, 2009), Tohme used his powers as Jackson's fiduciary and agent to take possession of both money and valuable personal property belonging to Jackson that he never returned to Jackson or the Executors, or property accounted for. By this Petition, the Executors seek to undo the harm suffered by Jackson as a result of Tohme's breaches of fiduciary duty, obtain an accounting of all money, property and material entrusted to or taken by Tohme during his tenure and recover all money, property and other material belonging to the Estate. Alleges causes of action for wrongful taking, recission based on breach of fiduciary duty, unconscionability, undue influence, and for declaratory relief set forth below.
MATTERS TO BE CLEARED - N/A
********************************************
OBJECTIONS FILED 3/21/12
OBJECTOR: Tohme R. Tohme
ATTORNEY: Paul S. Malingagio
********************************************
SUMMARY-OBJS
Objector is creditor/claimant
svd 3/21/12
FACTS-OBJS
With Tohme's application for abatement and for an extension of time in which to respond to the Petition pending and is set to be heard on March 28, Tohme will reserve any further response to the Petition until after the court considers and rules on his application for an extension of time to respond to the Petition and/or his motion for abatement of the Petition pursuant to Probate Code Section 854. Tohme expressly reserves his right and ability to seek abatement of the Petition and, if ultimately necessary, to substantively respond to the Petition with a demurrer, a denial or other appropriate responsive pleading. Before this Petition was filed, prior to 9:00 a.m. on 2/17/12,
Tohme filed a complaint in the Superior Court against the Jackson Estate, asserting claims for breach of contract and declaratory relief regarding the very same contracts which are the subject of the Jackson Estate's Petition herein. Among other things, Tohme's Civil Action alleges that he is entitled to compensation pursuant to a Finder's Agreement for his services in locating financing to prevent the foreclosure of Michael Jackson's Neverland Ranch real property and Michael Jackson's personal property. In addition, Tohme's Civil Action seeks compensation pursuant to a Services Agreement with Michael Jackson through which Tohme provided services as Michael Jackson's manager for a period of more than one year. Tohme was forced to file the Civil Action because the Jackson Estate refused to pay him, or even offer to pay him, any of the amounts to which he is entitled under these agreements. The Jackson Estate's Petition in this court clearly was filed as a "defensive" measure to the claims asserted in Tohme's Civil Action. The Petition alleges, inter alia, that the Finder's Agreement and Services Agreement are not enforceable, and that Tohme is not entitled to any compensation whatsoever for his work and services, for a variety of reasons, including that Michael Jackson allegedly "did not know what he was signing." The Petition is meritless and nothing more than an attempt by the Jackson Estate to further delay payment of the sums to which Tohme is rightfully entitled.
MATTERS TO BE CLEARED-OBJS - N/A
RELIEF
1. JTD order compelling Tohme to account for all monies and other property of Jackson's in his possession and control at any time, all monies and property of Jackson's misappropriated by Tohme, and all actions and transactions taken by Tohme with respect to Jackson's assets
2. JTD order directing Tohme to transfer, convey and deliver to the Executors all monies and other property belonging to Jackson or the Estate which he has in his possession or control
3. JTD for an award against Tohme in favor of the Estate in the amount of twice the value of all property wrongfully taken by Tohme
4. JTD for damages in an amount to be determined at trial, according to proof and for punitive damages
5. JTD for rescission of the Services Agreement, Finder Agreement and Indemnity Agreement and of any obligation thereunder to pay money to Tohme and for an order of restitution of any money or thing owing
6. JTD for rescission of the Services Agreement, Finder Agreement and Indemnity Agreement and of any obligation thereunder to pay money to Tohme and for an order of restitution of any money or thing owing
7. JTD for rescission of the Services Agreement, Finder Agreement and Indemnity Agreement and of any obligation thereunder to pay money to Tohme and for an order of restitution of any money or thing owing
8. JTD (a) Tohme is not entitled to commission any monies "received by" Jackson after Tohme was terminated (and certainly not on monies received after Jackson's death), (b) Tohme's "Services Agreement" is void or otherwise entitles him to no additional money, and (c) The Finder's Agreement entitles him to no further compensation and is void.
9. JTD for damages
10. JTD for interest on all amounts at the maximum legal rate,
11. JTD for an order imposing a constructive trust on all property wrongfully taken, concealed or disposed of by Tohme and all property traceable to property wrongfully taken, concealed or disposed of by Tohme
12. JTD for attorneys' fees and costs of suit incurred herein
13. JTD OBJECTIONS - Tohme will reserve any further response to the Petition until after the court considers and rules on his
application for an extension of time to respond to the Petition and/or his motion for abatement of the Petition pursuant to Probate Code Section 854. Tohme expressly reserves his right and ability to seek abatement of the Petition and, if ultimately necessary, to substantively respond to the Petition with a demurrer, a denial or other appropriate responsive pleading.
PROB ATTY COMMENTS: see related ex parte filed o/w contested matters
Rwada@lasuperiorcourt.org
RW (3/22)
RECOMMENDED DISPOSITION:RELATED ITEMS: 117
Order to be Prepared By Clerk: Attorney:
|
|
