A court rules the actress’ key claim over her firing from ABC’s ‘Housewives’ likely should have been resolved in favor of Touchstone. Sheridan’s lawyer insists the Sept. retrial will go forward.
In a major setback for Nicollette Sheridan in her lawsuit against Desperate Housewives producer Touchstone Television, an appeals court has issued a ruling delaying indefinitely a planned September retrial and suggesting that the key claim in the case likely should have been resolved in favor of Touchstone, The Hollywood Reporter has learned.
As you’ll recall, a Los Angeles jury deadlocked in March over whether the former Housewives actress was owed about $4 million for being improperly fired as retaliation for complaining after she was struck in the face by series creator Marc Cherry. (Cherry, originally a defendant, was dismissed from the case during trial.) The jury failed to reach a verdict, with eight of 12 jurors siding with Sheridan, so a retrial was set by Judge Elizabeth Allen White for Sept. 10.
Touchstone/ABC lawyers then appealed in an attempt to prevent a retrial, arguing that California law precludes wrongful termination lawsuits when an actress’ contract option is simply not exercised. That argument was made unsuccessfully several times during the litigation.
But now, in a surprising development, on Friday the California Court of Appeals issued an order agreeing with Touchstone and bumping the planned retrial off the calendar indefinitely. In a short “writ of mandate,” the appeals court overturned the trial judge’s denial of Touchstone’s motion for a directed verdict—essentially, that means the appeals court believes Touchstone should have won the major part of the case because a prior ruling in a case called Daly v. Exxon made clear that most employees whose options are not picked up can’t sue for wrongful termination.
The ruling is a big blow to Sheridan. The appeals court set an August 9 hearing date for the trial judge to show up and justify why the case should move forward to a retrial, but Superior Court judges rarely attempt to challenge appeals court rulings. The likely effect, therefore, will be that Judge White adheres to the appeals court mandate and issues some kind of directed verdict in favor of Touchstone on the wrongful termination claim.
Touchstone hasn’t completely won, however. The appeals court suggests Sheridan can reconfigure her case as a labor code violation under the OSHA law (Section 6310), which could lead to significant damages. Other appeals are possible. But a lawsuit that began as a $20 million bombshell when originally filed has now been brought to the brink of dismissal. Sheridan’s legal team led by Mark Baute will need to work some magic to bring it back.
“It is further ordered that the retrial currently set for Sept. 10 is hereby stayed pending further order of the court,” the ruling states.
Sheridan lawyer Baute tells THR that despite the appeals court’s indefinite stay, he is planning to fight to keep the retrial on track.
“The order reflects the court of appeals’ desire to have the September 10 trial focus on the Labor Code Section 6310 claim. The reference to amendment in the order is designed to ensure that happens and the September 10 trial date remains intact. This will all become clearer as the briefs are filed later this summer. It does not change the trial or the trial date, and the temporary stay is designed to clarify and resolve those issues before the September trial starts. It would be foolish for the media to believe that an order which expressly states that the Labor Code 6310 claim should be added means anything more than that, especially at this point. We will file our briefs and move forward accordingly.”
Lawyers for Touchstone have not responded to requests for comment.
|May 17||Touchstone Moves To Block Retrial|
Did you think you won’t hear about this until September? Yes, I was naive like that too. But Nicollette’s attorneys were back in court on Tuesday arguing that the actress should not be stopped from retrying her wrongful termination case against Touchstone Television.
After appearing every day in a Los Angeles courtroom in March, the former Desperate Housewives star’s first trial against Touchstone ended in a hung jury, with eight out of the 12 jurors siding in her favor. However, because the jury failed to reach a decision, Sheridan’s retrial is now set for Sept. 10.
But in documents obtained exclusively by E! News, Sheridan’s attorneys state their client was let go not because Touchstone failed to exercise a one-year option in her contract but because she complained about being allegedly struck in the head by showrunner Marc Cherry.
Sheridan’s attorney, Mark Baute, states in the brief that he demonstrated at trial a clear “nexus between Sheridan’s complaint and the decision by Cherry and Touchstone to terminate her” and that “Touchstone falsely claimed it decided to terminate Sheridan for creative, financial and performance reasons”—not because the actress made a protected complaint.
A judge is expected to rule on Friday whether Sheridan can proceed with her second trial against Touchstone.
|April 18||Re-trial Set For September 10|
And ladies and gentlemen, we have a new date.
After the jury was deadlocked in March, Judge Allen White set a new date for the re-trial. Initially being offered June 4, ABC/Disney’s attorney Adam Levine they couldn’t bring the witnesses they want because of the cycle of the entertainment industry, so Sheridan’s lawyers agreed on the September 10 date.
Sheridan’s attorneys had also asked for sanctions to ABC attorneys but that request was denied by the Judge in the hearing today. ABC also had a minor setback when their request for a direct verdict was also denied.
Levin argued that ABC had clearly shown there were discussions about killing off Sheridan’s character before the incident with Cherry. Baute called that a “bogus defense concocted out of thin air.”
The judge said a discussion of killing off a character is not the same as a decision, so that was not relevant.
The judge strongly suggested both sides meet and try to reach a settlement before the re-trial. However, after the court hearing Baute told reporters that ABC/Disney has said the company will never settle, and he does not see that changing.
Previous to the trial, scheduled to run through September 25, there will be a status conference on September 5.
|April 6||Nicollette Sheridan Lawyers Fight For Retrial|
Lawyers seeking a retrial for Nicollette Sheridan in her Desperate Housewives wrongful termination suit this week fired back against ABC Entertainment and Touchstone Television for asking Los Angeles Superior Court Judge Elizabeth Allen White to grant a verdict in ABC’s favor and dismissal of the actress’ claim for punitive damages instead of a retrial. The case ended in a mistrial last month when jurors deadlocked 8-4 in favor of Sheridan. In court papers filed this week, Sheridan’s lawyers contend Sheridan deserves a retrial and that her claim for damages is valid. Sheridan claimed in her lawsuit that her character was killed off in retaliation for her complaining that show creator Marc Cherry struck her in the head during production. Judge White threw out the battery claim against Cherry. Sheridan and her attorneys maintain that she was written out of the series after an internal investigation by the production company cleared Cherry of wrongdoing. “The record establishes a conscious disregard for Sheridan and reveals that Cherry and Touchstone sought to penalize her and deprive her of significant income because she had the audacity to complain about being struck by her boss while at work,” Sheridan’s court papers state. ABC contends that the record supports the network’s claim that the decision to kill off Sheridan’s character was made because the producers decided that “the character had run its creative course.” A hearing on the ABC Entertainment motion is scheduled April 13.
The 2012 Newport Beach Film Festival (NBFF) proudly announces the World Premiere of JEWTOPIA as its Opening Night film. The red carpet screening of JEWTOPIA will take place on Thursday, April 26th, 2012 at 7:30pm at Edwards Big Newport (300 Newport Center Drive).
Inspired from the international smash hit play seen by over a million people, JEWTOPIA (2012, USA, 89 minutes) stars Ivan Sergei, Joel David Moore, Jennifer Love Hewitt, Jon Lovitz, Rita Wilson, Tom Arnold, Peter Stormare, Camryn Manheim, Jamie-Lynn Sigler, Wendie Malick, Nicollette Sheridan, Phil Rosenthal, Christine Lakin, Hayes MacArthur and Lin Shaye. The story is about Christian O’Connell (Sergei) and Adam Lipschitz (Moore) — two childhood friends who reunite as adults to help each other land the women of their dreams. Chris wants to marry Allison (Hewitt), a Jewish girl, so that he’ll never have to make another decision for as long as he lives. Adam is on the verge of getting married to Hannah (Sigler), a woman he is not content with. When Chris enlists Adam’s help in pretending to be Jewish so that Allison will date him, cultures collide and chaos ensues!
“It’s been an incredible journey from what started as a little show in Los Angeles. I believe the film not only captures the outrageous comedy that made the stage play so popular, it also tells the universal story of cultures clashing and families getting in the way of finding true love. I’m thrilled to be having our world premiere at the Newport Beach Film Festival,” stated director Bryan Fogel.
Tickets to the Opening Night screening and gala are $125 each and are available at www.NewportBeachFilmFest.com starting April 1st. Patrons can also purchase tickets to the Opening Night gala for $80 each. Guests must be at least 21 years old and cocktail attire is suggested.
|March 20||Honeymoon For One Screencaptures|
I have added to the gallery screencaptures of Honeymoon For One and one picture from set. As well as one still from Becker (thanks Dennis) and more images from an old photoshoot.
As you know, the Judge in the Nicollette Sheridan vs. ABC Entertainment trial declared it yesterday a mistrial after the jury couldn’t reach a verdict after 3 days of deliverations. They said to be locked 8-4 in favor of the actress since day 1 and no further statements could change that. Just yesterday Sheridan’s lawyers had asked the Judge to let the jury deliverate for a few more days.
E!Online has talked to attorney Travis Gemoets, who has faced just these types of scenarios, and he says Sheridan is sitting pretty no matter what happens next.
Despite the fact that she didn’t all-out win the first time around, her case still looks good. “We know that the jury was split 8 to 4 in favor of Nicollette,” which gives her confidence moving forward, if nothing else. Another bonus: Sheridan now knows all of the defense’s tricks—and the defense relied more on that element of surprise than Sheridan’s team did. “So she’s going to be in a pretty strong position,” Gemoets tells E!Online.
Even though Disney is known for not settling and defense attorney Adam Levin has said multiple times he’s sure they will prevail in a second trial, don’t be shocked if Sheridan never appears in a courtroom again. Her clear favor with her first jury may prove compelling enough for ABC to offer a generous settlement. “The jury count indicates that some money needs to be paid to Nicollette to make this go away,” Gemoets says.
After all the amends to the original $20 million suit, Nicollette was now seeking $5 million. So, Gemoets says, “I think you’re talking about a multimillion-dollar sum, something in the $2 million to $3.5 million range wouldn’t shock me.”
Jurors Beverly Crosby and Johnny Huynh, who talked to the press yesterday, both said the case came down to the credibility of the witnesses. “There were a lot of people the jurors found not credible,” said Crosby. Crosby also said she questioned how the investigation into Sheridan’s claim of abuse was handled by ABC. “In my estimation,” ABC’s inquiry “wasn’t handled correctly….I won’t say there was a cover up. That’s a strong word, but it wasn’t handled right,” she said. “I don’t think they were scripted,” said juror Johnny Huynh, referring to Sheridan’s lawyer Mark Baute’s claims that ABC Studios’ witnesses had synchronized their stories. “But it was more like, their story just didn’t match up for me. They were less credible, their demeanor and things like that.”
“The evidence shows she was struck, and whether it was a hit, slap, or wallop, that really doesn’t matter,” Crosby said. “I looked at the fact that she was touched without permission. And whatever the word for it is—hit, slap, or wallop—didn’t really matter.”
According to them, much of the jury’s debate centered on the testimony of George Perkins, a Housewives executive producer whom employees were told to call if they felt their rights had been violated. Perkins testified that when Cherry brought Sheridan back for the final episode of season five – weeks after she was told to clear out – it was not a creative necessity but rather to embarrass her in the hope that she would not show up and breach her contract. That testimony reinforced Sheridan’s message that she had been a victim of retaliation when her character was written out of the show. Retaliation, said Crosby, is “very subtle. It’s something that may be hard to prove.”
|March 19||Judge Declares Mistrial|
Judge Elizabeth Allen White has declared a mistrial in Nicollette Sheridan‘s wrongful termination suit against ABC Studios and ABC Entertainment. The judge took her action, as she said she would, after the 12-person jury came back to court today unable to resolve their 8-4 deadlock of late last week. Lawyers for both sides say they will seek a new trial in the case revloving around Sheridan’s departure from Desperate Housewives. Defense lawyer Adam Levin told Deadline that White has set an April 13 meeting to determine a retrial date. “The jury is now hung on the single wrongful termination claim,” Levin told Deadlne. “We’re ready to retrial and we’re confident we will prevail.”
The jurors were polled in court this morning as to whether they wanted more time to deliberate or whether further closing arguments from both sides would be helpful. Every single juror said “no.” The judge had asked the panel to take the weekend to consider its position. The jury foreman did tell the court that the 8-4 split in the civil case was in Sheridan’s favor.
Attorneys for both sides met in settlement court Friday afternoon in front of Judge Helen Bendix with an eye on their own resolution. Those proceedings remain confidential at this time.
“You’d think we’d be disappointed but we’re not,” Sheridan’s attorney, Mark Baute, said during a press conference outside the courthouse. “We got our story out there. We went up against a 50-million-dollar conglomerate who had 10 witnesses, and eight jurors said, ‘No, I’m not buying what you’re selling.’”
When asked if his client was going to try to make her case again, Baute said, “110 percent.”
|March 15||Trial Eleventh Day Recap|
It is over now boys and girls. The case is now in the hands of the jury after the lawyers did their closing arguments. As you might already know, the battery charges against Marc Cherry were tossed Tuesday by the Judge, but the incident still plays a mayor role on the wrongful termination cause between Nicollette and ABC.
Marc Cherry is a “liar” and “Touchstone is not particularly concerned if a woman gets hit by a man who runs a billion dollar show,” Nicollette Sheridan’s lawyer Mark Baute said during his closing statement in the civil suit. Baute said ABC did nothing about the alleged September 24, 2008 head-hitting incident between Cherry and Sheridan on the Desperate Housewives set until an article about it appeared in the Nation Enquirer the next month. He said that ABC and Touchstone Television conspired to create a false record that would justify improperly killing off the actress in retaliation. Citing a lack of documents, supposed secrecy, compromised witnesses and an ABC human resources investigation he called a “whitewash,” Baute said “their story doesn’t hold water, there was no decision.” Baute told the jury he believed the revelation that actor James Denton’s longtime Housewives character would suddenly be killed off the show this past Sunday “goes to show you how far they’re willing to go to manage the story.” The Plaintiff contends major characters are not killed off series unless it is due to personal circumstances — like Charlie Sheen’s meltdown that saw him leave Two And A Half Men last year — or the series is about to end.
In a nutshell, he told jurors it all goes down to two questions: do you believe it was a hit or a tap? When do you believe the decision to kill Edie off was made? His argument was focused on the fact that it was a hit and even Marc Cherry admited it was an ugly incident and that the idea may have been tossed around in May but no decision was made. “Whenever a witness goes from ‘I don’t know to singing like a rehearsed little birdie, take caution.” In regards to the fact that everyone on defense claimed they saw no emails or correspondance, “this is a TV show It’s not a Navy Seal 6 team figuring out how they are going to kill Bin Laden in a secret operation.” He also pointed to the very little variations in the testimonies, which were based in their recollections since they didn’t keep a written record.
Defense attorney Adam Levin said during his closing statement that “the decision to kill off Edie was made long before the Sept. 24, 2008 incident”. “Mr. Baute has told you a complicated story of conspiracy, what is the truth is much more simple.” Calling it “desperate” to allege that “10 good citizens of California” would concoct a fake story to get rid of Sheridan’s character after the actress complained about Marc Cherry allegedly hitting her in the head, Levin took a much more professorial tone that the passionate Baute earlier in the morning. Employing props like on-screen transcripts, a giant timeline board, Post-It notes and Housewives’ writers’ story index cards Levin attempted to show the jury how the decision was made to kill off Sheridan’s character our months before the on-set head-hitting altercation.
While all the cards with ideas for Season 5 from summer 2008 Levin thinks work strongly on his favor, Baute in his rebuttal brought up writer’s assistant notes from January 13, 2009 for the season finale in which Edie was alive
Now it’s all in the hands of the jurors, 9 out of 12 have to agree for veredict (9 of them are women). They delivered yesterday before heading home for the day. Deliverations will continue today.
|March 14||Trial Tenth Day Recap|
Michael Reinhart, longtime Desperate Housewives construction coordinator and known on Monday as ‘Mystery Caller’, said that he “was trying to get the truth out”. Reinhart was added as a last-minute witness after he left a voicemail for Sheridan’s lawyer Mark Baute over the weekend saying he was inadvertently copied on an email that indicated ABC planned to delete references to the killing off Sheridan’s Edie Britt character. Despite strenuous protests from the attorney for Marc Cherry and ABC, the judge allowed him to testify because, while he was “out of the blue” and “nothing the plaintiff invited,” she was “losing the jury” and delaying this trial any more could result in a mistrial.
In halting testimony, Reinhart, whose voicemail said there was “definitely a conspiracy to cover up correspondence” related to Sheridan’s firing, said that the only words he recalls now from the spring 2010 email are “Nicollette Sheridan,” “IT” and “delete”, though he did confirm the bulk of what he told Baute on Sunday. Judge Elizabeth Allen White ordered Reinhart’s computer to be brought in for forensic examination. He testified that he “received an email, possibly in error, regarding possible deletion of information on hard drives in relation to this trial.” Reinhart, who expressed in court and to Baute concerns feared that by testifying, he was “performing professional suicide” and worried that he would not be able to find a job after Desperate Housewives concluded its season, said he immediately deleted the email because “I felt it wasn’t intended for me, I didn’t feel it was my business and I didn’t want to make it my business.” Visibly uncomfortable on the stand, Reinhart, however, insisted the email was “bothering him” and he “began to lose sleep” as the trial went on and felt that if he didn’t do something, he would “have to live with that for the rest of my life.” And he felt it was important information to reveal to Sheridan’s team because he wanted “equal footing for both parties.” After he made the phonecall to Bauter, he got his work computer and left his house to avoid a subpoena. He said he told his wife and Housewives production designer Erik Carlson as well as another crew member about the e-mail.
Defense attorney tried to suggest it could have been an e-mail about preserving documents, but Reinhart said he didn’t remember it saying anything about preserving. Levin asked if it was possible he had misunderstood the contents of the e-mail, and Reinhart said, “Yes, it is possible I misunderstood it.”
Then it was turn for VP Litigation Jean Zoeller who said on the stand that she would “absolutely not” tell anyone to delete or erase any correspondence or documents related to Nicollette Sheridan being fired from Desperate Housewives. Under questioning from the defense, Zoeller, who sat at the defense table every day of the two-week trial, told the jury she sent out four document preservation memos to make sure everything related to the matter was maintained. Those were sent out to ever expanding distribution lists on June 30, 2009, twice on April 6, 2010 — when Sheridan filed her lawsuit — and again on July 6, 2010. Those who received the emails were asked to “forward on to other people with knowledge of the matter.”
Zoeller was followed on the stand by Alex Myers from Disney’s Electronic Discovery department. Myers detailed the extensive and pervasive efforts by the company to harness all correspondence and documents on the Sheridan matter on company computers and servers as well as personal accounts and computers of staff members and contract employees.
Closings arguments will be done today, each lawyer having 2 hours to sum up their case before it goes to the jury. Remember now it’s only about wrongful termination since the Judge threw out the batter claim.
Computer technicians, however, were searching Reinhart’s work computer late Tuesday with the possibility that the case could be reopened if new evidence is found, Sheridan lawyer Mark Baute said.