1Ian Herzog [Bar No.

41396]
Evan D. Marshall [Bar No. 82444]
2 THE LAW OFFICES OF IAN HERZOG tj
A Professional Corporation
3 11400 West Olympic Blvd., Suite 1150 upovior court of Callto
" 19
Los Angeles, CA 90064 County of La4 An9010s
4 Telephone:(310)458-6660
Fax:(310)458-9065 OCT 6 2017
5 Sherri R.Carter,EX.Scutive officer/Clerk
Attorneys for Plaintiff Anita Busch
6 By V, ~ - ~ . ~ DeputY
Veronica Hillard
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF LOS ANGELES
9

10
IN RE PELLICANO CASES CASE NO. BC 316 318
11
[Assigned to Hon. Elihu Berle, Dept. 323]
12 ANITA BUSCH,
[Related to BC316459,BC349590,
13 Plaintiff, BC350832, BC354840,BC356529,
BC356722,BC358270,BC358271,
14 vs. BC361319,BC361621]
15 ANTHONY PELLICANO; ALEXANDER
PROCTOR; MARK ARNESON; CITY OF LOS PLAINTIFF'S OPPOSITION TO
16 ANGELES; SBC TELECOMMUNICATIONS, MOTION OF DEFENDANT
INC., formerly operating as Pacific Bell Telephone MICHAEL OVITZ FOR
17 Company, a corporation; CLIENT DOE; LAW SEPARATE TRIAL OF ANTHONY
FIRM DOE; and DOES I through 100, Inclusive, PELLICANO; MEMORANDUM OF
18 POINTS AND AUTHORITIES;
Defendants. DECLARATION
19
Date: November 8, 2017
20 Time: 2:00 p.m.
Dept: 323
21

22 Plaintiff Anita Busch submits the following opposition to the motion of defendant

23 Michael Ovitz to set a separate trial for Anthony Pellicano.

24

25 I. INTRODUCTION
26

27 Defendant Ovitz suggests that he will somehow be prejudiced if Anthony Pellicano is not

28 at trial. One can fairly conclude that the real "prejudice" which concerns Ovitz has nothing to do

PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR SEPARATE TRIAL

OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND AUTHORITIES
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is
1 with Pellicano's presence or absence at trial, but with the undisputed association between Ovitz

2 and Pellicano, as disclosed by Ovitz himself In truth, Pellicano's absence from trial will only

3 benefit Ovitz, allowing him a distance from Pellicano which he would otherwise never enjoy.

4 It seems apparent that the real aim of this motion is evidentiary: the hope that actions,

5 statements and convictions of Ovitz can be kept from the jury on the basis of Ovitz's denial of

6 responsibility for Pellicano's actions. This is tacitly conceded by the moving party's assertion

7 that the default of one defendant cannot be deemed that of another, and that an "uncontested

8 claim at trial" cannot be used "as a ploy for introducing evidence against a co-defendant." This

9 case, however, involves no default (Pellicano has appeared), but concerns agency and respondeat

10 superior liability, and thus liability evidence equally relevant to the agent and principal.

11 In so far as the motion asserts that trial will be simplified, and seeks sub rosa to create

12 grounds for exclusion of evidence, it fails to make even a preliminary justification for severance.

13 The motion does not come to grips with the evidence in a manner that would support the

14 conclusion that any time will be saved by bifurcation, or that there is any class of evidence that

15 would be admissible against Pellicano but not against Ovitz. That Anthony Pellicano might not

16 participate at trial is rather beside the point: the case against Ovitz is inextricably bound to that

17 against Pellicano given the respondeat superior basis for liability.

18

19 2. SUMMARY OF THE CASE

20
21 Anita Busch was an established journalist reporting on the entertainment industry. In

22 early 2002, Busch and her partner Bernard Weinraub wrote several articles in the New York

23 Times on Michael Ovitz' failing attempt to reestablish himself in the entertainment industry after

24 being fired from Disney. Anthony Pellicano began tapping Busch's phones and hacking her

25 computer in May(continuing until discovery of wiretaps in November 2002), ran DMV and

26 criminal record checks on Busch and Weinraub, and placed Busch's home under surveillance.

27 On June 20, 2002, Busch found a dead fish with a red rose on the broken windshield of

28 her car, with a card that said "Stop." The LAPD and FBI initiated an investigation. An FBI
k -.:

PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR SEPARATE TRIAL

OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND AUTHORITIES
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informant secretly recorded a career criminal, Alexander Proctor, admitting that he put the fish,
rose and note on Busch's car at Pellicano's direction. As a result of Proctor's taped statements,

FBI agents obtained a warrant to search Pellicano's office in November 2003. They found hand

grenades, plastic explosives, and $200,000, and later discovered recordings and wiretapping

equipment which led to federal criminal indictments and the Pellicano civil actions.

Among the seized recordings was a phone call of April 15, 2002 to Pellicano by Michael
Ovitz, in which Ovitz solicited a private meeting with Pellicano to deal with what he describes as

"incredibly ... the single most complex situation imaginable. . ." That "situation" was Anita
Busch and Bernard Weinraub, as Ovitz admitted in his testimony in the federal criminal action.

Pellicano was convicted of wiretapping Busch, and pled no contest to the threat with the

dead fish and note on her car.

3. PELLICANO'S CONVICTIONS,PLEAS AND STATEMENTS ARE

ADMISSIBLE AGAINST OVITZ

Statements by Pellicano, and his convictions, are admissible not only against Pellicano

but against his principal. If the jury finds that Pellicano was hired by Ovitz in regards to Busch

and is thus Ovitz's agent, then Pellicano's conviction, plea and other statements are admissible

against Ovitz. If 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. Evidence Code 1222, 1224. "A prima facie showing is all

that is required. Such proof is often in the form of testimony by the agent describing his or her

duties. The agent's testimony must demonstrate that the principal's words or actions conferred

authority on the agent, or show the principal's acquiescence in the agent's exercise of such

authority." Wegner, Fairbank, Cal. Prac. Guide - Civ. Trials & Evidence (Rutter 2016)T8:1176.

Pellicano's statements are admissible for purposes of establishing that he directed threats

27 against Busch, and as an admission. People v. Dell(1991)232 Cal.App.3d 248, 258. "In actions

28 between the principal and third persons, evidence of a statement by an agent is admissible for or

PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR SEPARATE TRIAL

OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND AUTHORITIES
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1 against either party for the purpose of proving that such statement was made, if the fact that the

2 statement was made constitutes, or is relevant in the proof of, one of the ultimate facts required

3 to be established in order to maintain a cause of action or defense." Rest. 2"d Agency 284.

4 People v. Fields(1998)61 Cal.AppAth 1063, 1069.

5 "While the admissions, statements and declarations of an agent, other than his own

6 testimony in the case in which the issue arises, are not admissible to prove such agency, they are

7 nevertheless admissible for such purpose after primafacie proof of such agency has been made."

8 Syar v. U.S. Fid. & Guar. Co.(1942)51 Cal.App.2d 527, 532. "The rule is established in

9 California that after evidence of an agency has been received as in the instant case, declarations

10 or admissions of the agent are admissible against the employer." Shields v. Oxnard Harbor Dist.

11 (1941)46 CaI.App.2d 477,488.

12 "After the existence or scope of an agency, actual or ostensible, is thus proved by

13 independent evidence, admissions relative to the transaction or business within the scope of the

14 agent's authority may be introduced in evidence against the principal. For example, declarations

15 of corporate agents made in the line of duty as such are always admissible against the

16 corporation, whether part of the res gestae or not. The agent's declarations may be admitted

17 against the principal, both if they were made at the time ofthe transaction or accident in question

18 and if they were made thereafter." 31 Cal.Jur.3d, Evidence 268.

19 Pellicano's convictions and plea to the threat against Busch are not, as Ovitz suggests,

20 inadmissible against his principal.

21 In Atlas Assurance Co. v. McCombs Corp.(1983) 146 Cal.App.3d 135, the trial court

22 found that an insurer had no duty to defend or indemnify insureds in civil action against them by

23 tenants ofinsureds' self-service storage facility, based in part on the conviction ofthe employee

24 of the insureds for theft of tenant property. Affirming, the Court of Appeal held that even a nolo

25 contendere plea of the employee was admissible against the employer.

26
Plaintiff requested the trial court to take judicial notice of portions
27 of the file in the criminal prosecution against Hartman. As appears
from the order granting summary judgment, the request was
28 granted. Defendant asserts Evidence Code section 1300 prohibited

PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR SEPARATE TRIAL

OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND AUTHORITIES
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1 judicial notice of the plea of nolo contendere. At the time the
motion was decided, this section provided: "Evidence of a final
2 judgment adjudging a person guilty of a crime punishable as a
felony is not made inadmissible by the hearsay rule when offered in
3 a civil action to prove any fact essential to the judgment unless the
4 judgment was based on a plea of nolo contendere."(Emphasis
added.) Facially the statute appears to support defendant's
5 position. However,the Law Revision Commission comment to
section 1300 notes: "[t]he exclusion ofjudgments based on a plea
6 of nolo contendere from the exception in Section 1300 is a
7 reflection of the policy expressed in Penal Code section 1016.....
(Evid.Code, 1300, p. 343.) Penal Code section 1016,
8 subdivision 3, provided at that time that the effect of a nolo
contendere plea "shall be the same as that of a plea of guilty, but
9 the plea may not be used against the defendant as an admission in
10 any civil suit based upon or growing out of the act upon which the
criminal prosecution is based.""(Emphasis added.) The inference
11 is clear that the exclusion of a nolo contendere plea from the reach
ofEvidence Code section 1300 was intended to apply only where
12 the plea was offered against the defendant in a subsequent civil suit
13 for the same conduct to which the defendant pled. Hartman's plea
was not being offered against Hartman, but against the defendants.
14 It was therefore not inadmissible within the meaning offormer
Evidence Code section 1300
15 [Atlas Assurance Co., 146 Cal.App.3d at 145]
16

17 Moreover, a nolo plea is no longer inadmissible as hearsay.

18
Even were we to conclude former Evidence Code section 1300
19 barred judicial notice of the plea, remand would be futile as
subsequent amendments to both Evidence Code section 1300 and
20 Penal Code section 1016, subdivision 3, have made a nolo
contendere plea to a felony charge admissible against a hearsay
21
objection. Evidence Code section 1300 now provides: "Evidence
22 of a final judgment adjudging a person guilty of a crime punishable
as a felony is not made inadmissible by the hearsay rule when
23 offered in a civil action to prove any fact essential to the judgment
whether or not the judgment was based on a plea of nolo
24
contendere."(Emphasis added.) Penal Code section 1016,
25 subdivision 3, now provides that the effect of a plea of nolo
contendere "to a crime punishable as a felony, shall be the same as
26 that of a plea of guilty for all purposes."(Emphasis added.)
[Atlas Assurance Co., 146 Cal.App.3d at 145, fii. 5]
1% 27

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PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR SEPARATE TRIAL

OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND AUTHORITIES
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 1 Wegner, Fairbank and Epstein, California Practice Guide Civil Trials & Evidence

2 (Rutter 2012)T8:1216, summarizes Atlas Assurance as follows:

3
In this scenario, Insured's Employee's hearsay statements admitting
4 to the theft for which coverage was sought were admissible
"vicarious admissions" against Defendant-Insured in the
5 declaratory relief action,just as they would have been admissible
as party admissions (Ev.C. 1220) against Employee in an action
6
involving Employee's liability for the theft. [Atlas Assur. Co., Ltd.
7 v. McCombs Corp.(1983) 146 CAM 135, 146, 194 CR 66, 72 an
employee's nolo contendere plea and other admissions in
8 underlying criminal action against an employee admissible:
"vicarious admissions" against employer insured under 1224]
9

10
As noted in the preceding, Evidence Code 1224 operates to allow a third person's
11
hearsay statements against a party (i.e., as the party's admissions) in a civil action to prove the
12
party's liability, obligation or breach of duty (as defendant) where the party's liability, obligation
13
or breach of duty is based on that of the hearsay declarant. See Labis v. Stopper(1970) 11
14
Cal.App.3d 1003, 1004("The liability of defendant Painting Contractor 'is based ... upon the
15
liability, obligation, or duty' of the painter he employed, who was the declarant ... Clearly the
16
statement, if made by defendant employer, would be admissible against him. Hence ...
17
(Evidence Code 1224) on its face renders the declaration of the painter admissible against
18
defendant employer." Miller v. Superior Court(1985) 168 Cal.App.3d 376, 381.
19
Comment b to Rest. 2nd Agency 284 states:
20
21 b. Non-operative but relevant statements. If the making of a
statement is relevant to an issue in the proceedings, evidence of the
22 fact that the statement was made and of the statement itself is
admissible, not to prove the existence of a fact stated in it, but for
23
the same purpose for which evidence of statements which
24 constitute operative facts is admissible....

25
Pellicano's directions to Proctor, for example, would be such a statement, and an
26
admission or statement of operative fact by Pellicano or by his sub-agent Alexander Proctor is
27
admissible against the principal (Ovitz). Restatement ofAgency 291 ("Statements of Servants
28

PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR SEPARATE TRIAL

OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND AUTHORITIES
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and Subagents") states:

The rules stated in 284-290, dealing with the admissibility of

statements of an agent, apply to the admissibility of statements of a
servant, and of a subagent with reference to transactions conducted
for the principal by him.

See also First National Bank ofLouisville v. Lustig(5th Cir.1996)96 F.3d 1554, 1574

(guilty plea admitted against insurance company); Scholes v. Lehmann (7th Cir.) 56 F.3d 750,

762(admissions in guilty plea agreement of Ponzi scheme principal admissible under FRE Rule
803(22)in civil action against persons other than principal); RSBIAerospace, Inc. v. Affiliated

FMIns. Co.(8th Cir.1995)49 F.3d 399, 403 (guilty plea of employee admissible against

employer); Semler v. Psychiatric Inst. of Washington, D.C.(4th Cir. 1975)538 F.2d 121, 127 (in

suit against psychiatric institute based on patient's murder of plaintiffs daughter, evidence of

patient's murder conviction and confession admissible under Rule 803(22)); Bear, Stearns Sec.

Corp. v. Gredd (In re Manhattan Inv. Fund, Ltd.)(S.D.N.Y. 2007)397 B.R. I ("the criminal

information to which [principal of a hedge fund] pled guilty" was recognized as "ample support

in the record [to establish the] characterization" of a Ponzi scheme in subsequent action.)

Agency responsibility extends far in the case of private investigators: "A litigant is

vicariously liable for its investigator's intentional misconduct committed within the course and

scope of the investigation that the investigator was hired to undertake. It is immaterial that the

investigator acts in excess of authority or contrary to instructions." Stephen Slesinger, Inc. v.

Walt Disney Co.(2007) 155 Cal.App.4th 736, 769.

Ovitz identified no evidence which would be admissible against Pellicano but not against

him. He thus fails to demonstrate that he will suffer any prejudice or that judicial economy will

be served by severance.

Like bifurcation, severance is not an appropriate means to keep out evidence which is

relevant to both trials or phases. See Cook v. Superior Court(1971) 19 Cal.App.3d 832, 834. In

so far as a limiting instruction may be appropriate, it should be requested as needed. Jurors are

27 deemed fully capable of adhering to such instructions. People v. Long(1974)38 Cal.App.3d

28 680,689.

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PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR SEPARATE TRIAL
OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND AUTHORITIES
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1 Further, were the court to sever Pellicano, adjudications and verdicts in the first phase

2 would not be binding on him.

4 4. CONCLUSION

6 For the foregoing reason, the motion should be denied.

8 Respectfully Submitted,

9 Dated: October 25, 2017 THE LAW OFFICES OF IAN HERZOG

10 '~f"e
By:
11 Evan D. Marshall
12 Attorneys for Plaintiff Anita Busch

13

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PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR SEPARATE TRIAL

OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND AUTHORITIES
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1 PROOF OF SERVICE

2 I am over the age of 18, employed in the County of Los Angeles, and not a party to this
action. My business address is 11400 West Olympic Boulevard, Suite No. 1150, Los Angeles,
3 California 90064. On October 25, 2017, 1 served a copy of the following documents:
4 PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR
SEPARATE TRIAL OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND
5 AUTHORITIES on the parties in Anita Busch v. Anthony Pellicano, et al., LASC Case No.
BC316318 by:
6

7 I. By Electronic Transmission (VIA CASE HOME PAGE): Based on a court order for
service by e-mail or electronic transmission, I caused the documents to be sent to the person(s) so
8 indicated above. I did not receive, within a reasonable time after the transmission, any electronic
message or other indication that the transmission was unsuccessful.
9

10 2. By Mail: As follows: I am "readily familiar" with this firm's practice of collection and
processing correspondence for mailing. Under that practice it would be deposited with the U.S.
11 postal service on that same day with postage thereon fully prepaid at Santa Monica, California
in the ordinary course of business. I served the following persons by placing a true copy thereof
12 enclosed in a sealed envelope, for collection and mailing with the U.S. Postal Service where it
13 would be deposited for first class delivery, with postage fully prepaid in the U.S. Postal Service
that same day in the ordinary course of business addressed as follows:
14

15 Legal Mail ** Special Mail **

16 To be opened in the presence of Inmate only
Anthony Pellicano Defendant Anthony Pellicano, In Pro Per
17 Inmate Register #21568-112
FCI Terminal Island
18 1299 Seaside Avenue
19 San Pedro, CA 90731

20 Rayford Earl Turner Defendant Rayford Earl Turner, In Pro Per

6903 Wish Avenue
21 Lake Balboa, CA 91406
22

23 I declare under penalty of perjury, under the laws of the State of California, that
the foregoing is true and correct. Executed on October 25, 2017 at Los Angeles, California.
24

25

26

27

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PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT MICHAEL OVITZ FOR SEPARATE TRIAL

OF ANTHONY PELLICANO; MEMORANDUM OF POINTS AND AUTHORITIES
-8-
 Service List
October 2, 2017

Pellicano Cases(Busch v. Pelficano)

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

Gleam 0. Davis, Esq. gd2521@att.com 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. btb@balllawlip.com 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 Carradine
Los Angeles, CA 90024

Eric M. George, Esq. egeorge@bgrfirm.com State Bar ID# 166403

Ira Bibbero, Esq. ibibbero@bgrfirm.com State Bar ID# 217518
Abigail Page, Esq. apage@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. mwilliams@cohen-williams.com State Bar ID# 198913

COHEN WILLIAMS WILLIAMS LLP Tel:(213) 232-5160 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. julien@dovellaw.com 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. jfrank@lawfss.com State Bar ID# 190957

Scott H. Sims, Esq. ssims@lawfss.com 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

71

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Evan Marshall, Esq. W CcDavlaw.info O e Bar ID# 82444

mow
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. diohnson@iillplaw.com State Bar ID# 209216

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

Jennifer L. Keller, Esq. ikeller(@kelleranderle.com State Bar ID# 84412

Kay Anderle, Esq. kanderleL@kelleranderle.com State Bar ID# 143489
Jesse Gessin, Esq. igessinC@kelleranderle.com 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 92612-10S7

Geoffrey Plowden, Esq. Geoffrev.Plowden@lacitV.org 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
FC1 Terminal Island
Federal Correctional Institution
P.O. Box 3007
San Pedro, CA 90733

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