A California state appeals court Tuesday dismissed FilmOn founder Alki David's appeal of a former employee's $11 million sexual battery jury win, finding the lower court did not abuse its discretion in denying a new trial or in allowing a claim to proceed that was only pled in a stricken complaint.
The three-judge panel for the Second Appellate District rejected allegations from David and his company Hologram USA that the stricken claim made its way into the trial due to deception and misrepresentations by attorney Lisa Bloom and other counsel from The Bloom Firm representing the plaintiff, Chasity Jones.
"The unsupported assertion of improper conduct by opposing counsel is not well-taken," the panel said in the opinion authored by Justice Audrey B. Collins. "Appellants have not pointed to any evidence that Jones' counsel knowingly misled the court about the status of the [first amended complaint]."
In April 2019, a California jury ordered David and some of his companies to pay $11 million in punitive and compensatory damages for committing sexual battery against Jones. The jury found David repeatedly sexually harassed and battered Jones when she worked as a sales executive for his companies FilmOn.TV Networks Inc. and Hologram USA.
David is a reputed billionaire due to holdings in his family's company the Leventis-David Group, which owns an overseas Coca-Cola bottling empire, but recently told The Daily Beast that his true net worth is below that mark and that he exaggerated his wealth in public statements to enhance his persona.
The Jones verdict was the first of several losing 2019 jury trials for David or his companies on allegations of sexual harassment or sexual battery against employees. There was a $58 million verdict in favor of Mahim Khan and a $5 million verdict in favor of Lauren Reeves. A fourth trial in a lawsuit brought by former employee Elizabeth Taylor resulted in a hung jury.
David's company, Alki David Productions, also lost a $7 million jury trial verdict in October in a wrongful termination suit.
In all the trials, David's behavior often dominated the proceedings, as judges frequently kicked him out of their courtrooms for screaming, yelling or going on disruptive tirades either when he was in the audience, from the witness stand, or when he was sometimes acting as his own attorney.
According to the appellate ruling, David lasted about 12 minutes on the stand in the Jones trial before the judge requested a bailiff and instructed his counsel to tell David to leave the courtroom. During that time David "proffered" his American Express Black credit card to Jones, telling her, "Take my card. Take my card. Here, take my card. … Go and buy whatever you want," according to the panel.
The justices also noted that David stated or shouted, "It's a Black Amex from Switzerland, if you would like, madam? Is that interesting?" before he said, "Oh, fuck it. Just enter a default judgment" and exited the courtroom.
The appellate panel also said David "admitted to egregious workplace conduct including screening an obscene video, permitting an exotic dancer to perform in the office, and frequently walking around with his pants down and his genitals tucked between his legs."
The panel added that David "dubbed this action a 'mangina,' a term he claimed to have coined," and that counsel "rejected his offers to demonstrate."
During the appellate hearing in November, attorneys for both parties agreed that on the first day of the trial, Los Angeles Superior Court Judge Rafael A. Ongkeko asked about a potentially stricken first amended complaint, and that after an attorney from The Bloom Firm told the judge the first amended complaint was the operative one, David's attorney at the time, Ellyn S. Garofalo of Venable LLP, told the judge, "That's our understanding."
David argued to the panel that Jones' attorneys misrepresented the facts to the court, while Arick Fudali of The Bloom Firm said it was just an honest error.
The panel said the "'theory of trial' doctrine is long-established."
"More than a century ago, California appellate courts concluded that a party should not 'be permitted to stand by and without objection allow an issue to be tried as though properly presented by the pleadings and on appeal escape the consequences by claiming that the complaint failed to present such issue,'" the ruling said.
The panel, among other things, also rejected the defendants' arguments that the punitive damages award was not supported by substantial evidence and that the trial court abused its discretion by excluding from evidence several of Jones' social media posts.
"I don't care," David told Law360 when asked about the opinion. "They are criminals. All of them. They will go to jail."