Judge Mitchell L. Beckloff, Case BP117321 2022-08-17 Tentative Ruling

As a preliminary matter, as no motion to seal (i) Exhibit D to the Declaration of Serli Polatoglu; (ii) the opposition for writ of possession and/or preliminary injunction; (iii) the application for writ of possession filed August 12, 2022; (iv) Exhibit D to the Reply Declaration of Jonathan Steinsapir; (v) Exhibit E to the Reply Declaration of Jonathan Steinsapir; and (vi) the reply brief has been filed, the unredacted version of the documents are ordered filed in this matter. (See Cal. Rules of Court, Rule 2.551, subd. (b)(3).)[1]

Petitioners, John Branca and John McClain, Co-Executors of the Estate of Michael Joseph Jackson, seek a preliminary injunction or a writ of possession against Respondent Jeffre Phillips. Petitioners contend Respondent has possession of property of the estate. Petitioners allege in the days after Jackson’s death in 2009, Respondent removed certain property from Jackson’s home. While Petitioners “are not certain as to exactly what this property is . . . it includes at least” the following:[2]

The application for a writ of attachment is granted. The request for a preliminary injunction is denied as moot.

On June 24, 2022, Petitioners filed their verified petition for recovery of property, wrongful taking of property, conversion and declaratory relief pursuant to Probate Code section 850. The petition generally alleges Respondent removed certain property from Jackson’s home in the days after Jackson’s death on June 25, 2009. The property Respondent took includes several iPhones belonging to Jackson and his children, Jackson’s California driver’s license, prescription pill bottles with medication, clothing, notes, a briefcase filled with Jackson’s papers, Jackson’s pajamas worn on the night of Jackson’s death and a resuscitator tube apparently used on Jackson just before Jackson died.

Petitioners learned of Respondent’s possession of the property from an auctioneer in December 2021. The auctioneer contacted Petitioners after Respondent contacted him about the potential sale of certain of Jackson’s property.

In April 2022, the auctioneer in cooperation with Petitioners set up a meeting with Respondent so the auctioneer could inspect some of the items Respondent wished to sell. Unbeknownst to Respondent, the auctioneer agreed to have a licensed private investigator hired by Petitioners present during the meeting posing as an employee of the auction house.

Respondent met with the auctioneer and the private investigator on April 14, 2022. At that time, Respondent produced property belonging to Jackson and acknowledged he had taken the property from Jackson’s home after Jackson died. Respondent also advised the auctioneer he had additional property belonging to Jackson that he had not brought with him to the meeting.

The private investigator eventually identified himself and took possession of the property Respondent brought to the meeting. Ongoing efforts to obtain other property belonging to Jackson not brought to the meeting were unsuccessful.

On June 28, 2022, Petitioners brought an ex parte application seeking a temporary restraining order (TRO) precluding Respondent from disposing of any property he took from Jackson’s home in the days after Jackson’s death, certain discovery orders, and an order to show cause (OSC) hearing why a writ of possession in favor of Petitioners should not issue and/or a preliminary injunction enjoining disposal of the property or its return to Petitioners. Petitioners supported their ex parte application with the declaration of the private investigator present at the April 14, 2022 meeting between the auctioneer and Respondent, a paralegal employed by Petitioners who has day-to-day responsibility for managing the personal property that belongs to the estate and Petitioners’ counsel.

After finding notice had been given as required by law, the court issued the TRO, granted the requested discovery orders and set the OSC for a writ of possession and/or an injunction.

Since the court issued the TRO, Petitioners have conducted discovery and specifically identified Jackson’s property allegedly taken by Respondent. The property includes 109 CDs/DVDs “most of which either contain handwritten notes or them or are private special editions,” personal and/or legal papers, correspondence, handwritten and typed notes, five hard drives, a microphone set, a photo album with Jackson on the cover, three laptop computers, two iPods, two Dictaphones with two micro-cassettes, three cassette tapes, a black coin purse with a skull on it, a signed and framed photograph of Jackson, a Jackson doll, “roughly 11 framed platinum/gold CD/Record awards,” and 17 commercially released CDs by other artists. (See Application for Writ of Attachment filed on or about August 12, 2022, ¶ 4.)

Respondent does not deny he possesses the property—he contends it was gifted to him. Respondent explains on the night Jackson died, he and his then fiancé, La Toya Jackson, went to Jackson’s house at the request of Jackson’s mother, Katherine Jackson. (Phillips Decl., ¶ 7.) Jackson’s mother asked Respondent to “oversee and safeguard both the house and Mr. Jackson’s personal belongings.” (Phillips Decl., ¶ 7.) After staying in Jackson’s house for “several days,” Mrs. Jackson “requested that La Toya and [he] remove any personal belongings that [they] could from the residence, given it was a rental property that would be locked up shortly.” (Phillips Decl., ¶ 9.) Respondent complied with Mrs. Jackson’s request and gathered Jackson’s personal property such as “Jackson’s phones, Driver’s License, and the clothing he wore on the night he passed amongst several other personal items.” (Phillips Decl., ¶ 10.) Respondent and La Toya Jackson “placed [the] items into one of Michael Jackson’s vehicles” and left the property. (Phillips Decl., ¶ 10.)

“In the ensuing weeks and months, I repeatedly asked [Mrs.] Jackson what I should do with the property La Toya and I had removed from the Carolwood House . . . . With the exception of a single computer that she asked me to deliver to Taj Jackson, she repeatedly told me to keep the [property]. I did exactly as [Mrs.] Jackson asked, as I had always done in the past, and put the items in storage.” (Phillips Decl., ¶ 11.)

Respondent advises Jackson’s family members knew he had the property “in storage,” and he never lied about having the property. (Phillips Decl., ¶ 15.) Respondent attests he never sold a single item of Jackson’s property or publicly displayed any of it. (Phillips Decl., ¶ 12.) There is no dispute Respondent has had the property in his possession since early July 2009.

Respondent resents Petitioners’ use of a private investigator when he met with the auctioneer. He objects to being “falsely painted as a thief and a grave robber.” (Phillips Decl., ¶ 23.) Respondent reveals “[i]f [Mrs.] Jackson instructed [him] to give the property back to the Estate, [he] would have done so.” (Phillips Decl., ¶ 22.) Petitioner contends he would not have refused a request for the property from Jackson’s family “although the property was given to [him] and belongs to [him].” (Phillips Decl., ¶ 22.)

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.”[3] (Code Civ. Proc., § 512.010, subd. (a).)

Pursuant to Code of Civil Procedure section 512.010, subdivision (b), the application for a writ of possession must be submitted under oath and include:

Before the hearing on the application for a writ of possession, a defendant must be served with (1) a copy of the summons and complaint; (2) a Judicial Council form notice of application and hearing; and (3) a copy of the application and any affidavit in support thereof. (Id., § 512.030.)

“The writ will be issued if the court finds that the plaintiff’s claim is probably valid and the other requirements for issuing the writ are established.” (Id., § 512.040, subd. (b).) “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Id., § 511.090.) “If the defendant desires to oppose the issuance of the writ, he shall file with the court either an affidavit providing evidence sufficient to defeat the plaintiff’s right to issuance of the writ or an undertaking to stay the delivery of the property in accordance with Section 515.020.” (Id., § 512.040, subd. (6).)

Prior to the issuance of a writ of possession, the plaintiff must file an undertaking “in an amount not less than twice the value of the defendant’s interest in the property or in a greater amount.” (Id., § 515.010, subd. (a).) “The value of the defendant’s interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant’s interest in the property.” (lbid.) ‘‘If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff’s undertaking and shall include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” (Id., § 515.010, subd. (b).)

“[A] court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits.” (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.) “The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.” (Ibid.)

As the parties recognize, “Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “[T]he greater the . . . showing on one, the less must be shown on the other to support an injunction.” (Ibid. [quoting Butt v. State of California, (1992) 4 Cal.4th 668, 678].) The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) A plaintiff seeking injunctive relief must also show the absence of an adequate damages remedy at law. (Code Civ. Proc. § 526, subd. (a)(4).)

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See Code Civ. Proc. § 529, subd. (a); City of South San Francisco v. Cypress Lawn Cemetery Ass’n, (1992) 11 Cal. App. 4th 916, 920.)

Whether in the context of a writ of possession or a preliminary injunction, Petitioners must show some ability to prevail on the merits of their claim. Respondent asserts three primary defenses in opposition to the relief sought by Petitioners. First, Respondent argues Petitioners’ claims are barred by a three-year statute of limitations. Second, Respondent contends Petitioners’ will not prevail against him based on the equitable doctrine of laches. Finally, Respondent asserts Petitioners have not satisfied the basic procedural requirements for a writ of possession. With regard to Petitioners’ request for a preliminary injunction Respondent also argues the balance of harms weighs in his favor.

“Generally speaking, the claim underlying a [Probate Code] section 850 petition in probate is subject to the same statute of limitations that would apply had an ordinary civil suit been brought.” (Estate of Yool (2007) 151 Cal.App.4th 867, 874 n. 5.) As Petitioners’ claim is based on conversion and/or theft (see Petition ¶¶ 37, 46, 52-60), Respondent argues a three-year statute of limitations applies. (See Code Civ. Proc. § 338, subd. (c)(1). [“An action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property.”])

Respondent contends the statute of limitations is triggered “by the act of wrongfully taking property.” (Opposition 15:25 [citing Bono v. Clark (2002) 103 Cal.App.4th 1409, 1433.) As Petitioners allege Respondent took Jackson’s property in the days following Jackson’s death, the statute of limitations had run by July 2021, three years after the taking. (Opposition 15:28-16:2.)

Anticipating a delayed discovery claim by Petitioners, Respondent notes “the limitations period on conversion begins to run ‘even if the owner is ignorant of the wrong committed.’ [Citations.]” (Opposition 16:4-8.) Respondent argues Petitioners cannot avoid the three-year trigger to the conversion statute of limitations because he was not a fiduciary to Petitioners, and he did not fraudulently conceal his possession of Jackson’s property. (Opposition 16:12-13, 16-18.) Finally, Respondent suggests Petitioners cannot benefit from their lack of diligence.

In response, Petitioner contends Respondent’s reliance on the three-year statute of limitations found in Code of Civil Procedure section 338, subdivision (c)(1) is misplaced as the property Respondent took is not ordinary property—it has “historical, interpretive, scientific, or artistic significance.” (Code Civ. Proc. § 338, subdivision (c)(2).) Therefore, Petitioners argue their claim is subject to a different subdivision of Code of Civil Procedure section 338.

While there is, as claimed by Respondent, a three-year statute of limitations on a conversion claim, the Legislature has also given delayed the trigger to the statute for certain kinds of personal property:

(c)(1) An action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of property.

(2) The cause of action in the case of theft, as described in Section 484 of the Penal Code, of an article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved party’s agent, or the law enforcement agency that originally investigated the theft.”

The court has taken judicial notice of a fact so universally known that it cannot reasonably be the subject of dispute—Jackson is a well-known historical figure from the last sixty years and was one of the most successful recording artists of all time. In fact, Respondent agrees Jackson was one of the most famous individuals in the last 50 years. (Steinsapir Reply Decl., Ex. D [Respondent’s Deposition Transcript], p. 10:4-7.) Respondent also recognizes some of the property he has that once belonged to Jackson (“platinum awards”) have value because they are associated with Jackson. (Steinsapir Reply Decl., Ex. D [Respondent’s Deposition Transcript], p. 41:3-12.)

Given Jackson’s status as an artist and historical figure, at least some of the property—such as handwritten and typed notes, correspondence or home videos—held by Respondent could and would qualify as having artistic and historical significance. Whether Jackson’s ownership alone is sufficient to categorize an item as artistically or historically significant, however, is subject to argument. For example, a Dictaphone with two blank micro-cassettes might not rise to a level of significance just based on Jackson’s prior ownership. If Jackson regularly used that Dictaphone to makes notes about music he was writing or performing, however, the artistic and historical significance would increase.

Code of Civil Procedure section 338, subdivision (c)(2) applies in circumstances where theft, as defined by Penal Code section 484, is alleged and proven by a preponderance of the evidence. Theft by larceny “is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citations.]” (People v. Davis (1998) 19 Cal.4th 301, 305.)

Petitioners suggest Respondent’s felonious intent can be discerned or inferred from the nature of the property taken—such as Jackson’s pajamas worn on the night of his death, a resuscitator tube, prescription pills—without more. Petitioners also contend Respondent could not have reasonably relied on Mrs. Jackson’s instruction because she did not yet hold letters of special administration and had no authority to act on behalf of the estate. Petitioners assert Respondent’s actions show Respondent’s bad faith. (Reply 5-6.)

Based on the evidence, Petitioner’s showing of Respondent’s intent to steal the property is not particularly persuasive. While some of the property taken certainly raises questions about Respondent’s intent, Respondent attests he acted on behalf of Jackson’s mother immediately after Jackson’s sudden and unexpected death. Without any direct contrary evidence and on this record,[4] Respondent’s acts of removing the property at Mrs. Jackson’s request does not appear unreasonable. Respondent also attests he asked Mrs. Jackson for weeks and months what to do with the property. (Phillips Decl., ¶ 11.) Mrs. Jackson told Respondent “to keep” the property.[5] The court notes Respondent observed family members removing property from the house in the days following Jackson’s death.

Perhaps recognizing their evidence of an intent to steal is tenuous, Petitioners argue “at best” Respondent was a bailee of the property. (Reply 6:24.) They argue under a bailment, Petitioners’ cause of action for conversion just recently started running:

“In the case of a bailment, when an original taking is wrongful, the statute of limitations begins to run from the time of the unlawful taking. This rule applies to both causes of action for conversion and claim and delivery. [Citations.] . . . . When, on the other hand, the original taking is lawful, the statute of limitations for conversion or claim and delivery does not begin to run ‘until the return of the property has been demanded and refused or until a repudiation of the owner’s title is unequivocally brought to [her or] his attention.” (Coy v. County of Los Angeles (1991) 235 Cal.App.3d 1077, 1087-1088.)

Petitioners’ argument based on the law of bailment and the evidence from Respondent is persuasive opposition to Respondent’s claim the statute of limitations bars Petitioners’ claims. According to Respondent, he and La Toya Jackson went to Jackson’s house on the night of Jackson’s death to safeguard the house and Jackson’s property. (Phillips Decl., ¶ 7.) Respondent removed property from Jackson’s house because the house was a rental property “that would be locked up shortly.” (Phillips Decl., ¶ 9.) Respondent only took the property because Mrs. Jackson made the “request.” (Phillips Decl., ¶ 10.) Respondent repeatedly sought instruction from Mrs. Jackson about what he should do with the property he and La Toya Jackson removed from Jackson’s home. (Phillips Decl., ¶ 11.) Mrs. Jackson told Respondent “to keep” the property. (Phillips Decl., ¶ 11.) Respondent “did exactly as [Mrs.] Jackson asked, as [he] had always done in the past, and put the items in storage.” (Phillips Decl., ¶ 11.) Finally, Respondent would have returned the property if Mrs. Jackson would have asked him to do so. (Phillips Decl., ¶ 22.)

The facts—as described by Respondent—suggest he took possession of the property for the benefit of Mrs. Jackson or the Jackson family with the consent of Mrs. Jackson and at least some family members. That Respondent put the property in storage, as requested by Mrs. Jackson, and did not otherwise exercise control over it suggests he did not consider himself (despite his attestation in this litigation to the contrary) the owner of the property.

Given the bailment context, Petitioners have sufficiently demonstrated for purposes of their request for a writ of attachment or a preliminary injunction, the statute of limitations on Petitioners’ conversion claim did not begin running until Respondent refused to return the property to Petitioners—in the Spring of 2022. At that time, Respondent’s possession of the property became adverse to Petitioners’ ownership. Until that time, Petitioners would not have known of Respondent’s adverse position to Jackson’s estate because Respondent took possession of the property with permission.

Based on the foregoing, the court finds Petitioners have demonstrated strong likelihood of overcoming Respondent’s three-year statute of limitations defense.

Respondent also asserts Petitioners may not prevail on their conversion or wrongful taking claim based on the equitable defense of laches. Respondent’s argument is brief.

“The basic elements of laches are: (1) an omission to assert a right; (2) a delay in the assertion of the right for some appreciable period; and (3) circumstances which would cause prejudice to an adverse party if assertion of the right is permitted.” (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 296) Whether the delay is unreasonable is measured from “when the plaintiff knew (or should have known) of the allegedly infringing conduct . . . .” (Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1157.)

Respondent argues Petitioners “slept on [their] rights for 13 years. [Petitioners] knew that personal property was removed” from Jackson’s home immediately after Jackson’s death. (Opposition 18:9-10.) The delay, according to Respondent, “prejudiced” him. Respondent claims since Petitioners asserted their claim his “name has been dragged through the mud,” “been painted as a thief and grave robber, and has suffered grave mental and emotional anguish as a result.” (Opposition 18:15-16.)

Respondent’s laches defense is unpersuasive because it does not identify prejudice Respondent suffered because of Petitioners’ delay. That his name has been “dragged through the mud,” has nothing to do with Petitioners’ delay, and whether that delay was reasonable. Given Respondent’s position he owns the property, it appears his mental anguish would have arisen whether this litigation occurred in 2010 or 2022.

Based on the foregoing, the court finds Petitioners have demonstrated the probable validity of their claim (writ of attachment) as well as a substantial likelihood of prevailing on the merits (preliminary injunction).

Respondent objects to the court issuing a writ of possession given Petitioners’ failure to satisfy several procedural obligations. (Opposition 18:19.) While Petitioners have not posted a bond, the court can and would make the issuance of a writ conditioned upon the posting of a bond. Petitioners suggest the value of the property is difficult to estimate and suggest an approximate value of $1 million. Respondent has not had an opportunity to respond to Petitioners’ estimate.

More problematic, however, is Petitioners’ failure to timely file the mandatory judicial council form application for a writ of attachment (Judicial Council form CD-100) prior to August 12, 2022; Petitioners filed it just three court days before this hearing. The application form identifies the location of the property. The application form also identifies the specific property to be levied. Given the volume, Petitioners could not specify the exact property held by Respondent until they conducted some discovery. Finally, the application form provides the claimed property has not been taken for tax, assessment or fine and has not been seized.

Given the late filing and Respondent’s objection, Respondent may address whether he now wishes to contest the information provided in the mandatory application form or the value of the property.

The preliminary injunction sought by Petitioners as an alternative to a writ of possession would require Respondent to hold the property and not dispose of it until trial on the petition. Thus, Petitioners’ alternative request is to maintain the status quo.

The court must determine whether the balance of harms favors issuing the preliminary injunction. In the second part of the preliminary injunction analysis, the court evaluates the harm the plaintiff is likely to sustain if the preliminary injunction is denied compared to the harm the defendant is likely to suffer if the injunction issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.) More specifically, the court must consider “the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.)

Petitioners contend if the injunction is not issued Respondent will continue his efforts to sell or otherwise dispose of the property.[6] Much of the property is unique and difficult to value. Petitioners argue it would be very difficult to recover the property once it is in the possession of third parties. According to Petitioners, absent the requested injunction, the threat of irreparable harm is “manifest.” (Motion 13:25.)

Respondent contends he would be harmed if the injunction issued. He contends it would impose an unnecessary burden on him to enjoin his use of the property.

The court finds the balance of harms tips in favor of Petitioners. If they prevail at trial and Respondent has disposed of the estate’s property, Petitioners will have lost unique property that will be difficult to locate once sold to third parties. The burden on Respondent appears minimal given that the property has apparently been sitting in storage for 13 years.

Based on the foregoing, and subject to Respondent’s argument on the procedural requirements of an application for a writ of attachment, the court finds Petitioners are entitled to a writ of attachment. For purposes of their request, Petitioners have demonstrated the validity of their claim, they are rightfully entitled to the property and Respondent is wrongfully withholding it. Petitioners have specifically identified the property and its location. The property has not been taken for a tax, assessment or fine.

In lieu of the writ issuing with the specific location of the property, given the nature of the relationships of the parties involved and the nature of the property, the court requests the parties address an order directing Respondent to transfer possession of the property to Petitioners. (See Code Civ. Proc. § 512.070.)

As argued by Respondent, Code of Civil Procedure section 515.010, subdivision (a) requires Petitioners to post a bond. (The court cannot find today Respondent has no interest in the property.) As the value of the property is estimated to be $1 million, bond is set at $2 million. Any counter-bond posted by Respondent would also be $2 million.

[1] The court recognizes California Rules of Court, Rule 2.551, subdivision (b)(3) gives a party 10 days to file the motion or request additional time to file the motion. As the parties have not had 10 days to file a motion, the court requests the parties advise whether they have an objection to the order unsealing the documents at the time of hearing.

[2] Petitioners’ reply papers (prepared after limited discovery) provide specificity about the property at issue.

[3] Probate Code section 1000, subdivision (a) makes the provisional remedy of a writ of possession applicable here.

[4] Noticeably absent from the evidence from Petitioners and Respondent is a declaration from Mrs. Jackson.

[5] The context of that conversation is not detailed and lacks clarity. Given that Petitioner “did exactly as [Mrs.] Jackson asked” and put the property in storage, it appears Respondent interpreted Mrs. Jackson’s instruction as one to continue his safekeeping of the property. (Phillips Decl., ¶ 11.)

[6] Respondent expressly disputes he sold any of the property. (Phillips Decl., ¶ 12.) The private investigator present at the meeting between Respondent and the auctioneer attests otherwise. The investigator reported Respondent said during the meeting “he had sold Jackson’s passport from the time of his death to a private individual for approximately $600,000.” (Greene Decl., ¶ 12.)