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Katherine Barrese v. Jacques Gaston Murray

August 16, 2011

KATHERINE BARRESE, PLAINTIFF AND RESPONDENT,
v.
JACQUES GASTON MURRAY, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Jacqueline A. Connor, Judge. (Los Angeles County Super. Ct. No. SC 096411)

The opinion of the court was delivered by: Flier, J.

opinion following rehearing

CERTIFIED FOR PUBLICATION

Reversed and remanded.

Respondent Katherine Barrese sued appellant Jacques Gaston Murray under the authority of Marvin v. Marvin (1976) 18 Cal.3d 660 (Marvin) and was awarded $5.7 million by a jury. Although the trial court stated in the hearing on appellant's motion for new trial that respondent could not be believed, the court denied the motion because it concluded that it did not have the power to set aside the jury's verdict.

On April 18, 2011, we filed an opinion (B217011) in which we held that the trial court erred when it ruled that it did not have the power to set aside the verdict. We remanded with directions to rehear and determine appellant's motion for a new trial in accordance with the principles set forth in the opinion.

Both sides filed petitions for rehearing. We granted the petition filed by appellant because it appeared that there was a substantial question whether the trial court could hear and determine the motion for new trial. The obstacle appeared to be the 60-day time limit, measured from the mailing of the notice of entry of judgment, on the trial court's power to rule on the motion for new trial. (Code Civ. Proc., § 660 (section 660).)*fn1 We denied the petition filed by respondent.

We afforded an opportunity to both parties to brief this issue and the parties did so. After considering the views and authorities propounded by the parties, we conclude that the 60-day time limitation does not apply and that the trial court does have the power to hear and determine, on the merits, the motion for a new trial.

We reiterate the opinion previously filed and add, in a new part, a discussion of the point upon which we granted a rehearing.

FACTS

Appellant, age 90 in 2010, describes himself as a successful and wealthy international businessman; he is still active as the chairman of a major company that is publicly traded on the London Stock Exchange. He owns homes in 12 cities, including London, Geneva, Paris, St. Tropez, Acapulco, New York, Miami and Beverly Hills.

Respondent and appellant met in St. Tropez in 1984 where respondent had her first movie role as an actress in a Jerry Lewis movie; respondent was 23 and appellant was 64. The occasion was a lunch at appellant's house to which he had invited the movie crew. Respondent states that appellant began to pursue her aggressively, while appellant characterizes the relationship as keeping in touch.

Appellant, thrice divorced, told his lawyer after the final divorce that he would never remarry. This is the lawyer's account of the unusual response that appellant devised for his divorces: "I decided that I would never remarry or that I would never become emotionally involved again, and my way of solving or living with that decision is to have a number of girls that are going to be escorts or companion[s] or girlfriends that I will compensate. I will pay them, and I want a number of them because I want to make sure that no one, none of them is going to take an important role in my life, in my house, give instructions to anyone, and when I will feel, and when I have felt in the past, because this was ongoing when he [appellant] told me [the lawyer] this, it was already ongoing for several years, that someone feels that she is becoming important or too important in my life, I will just nicely give her a return ticket and tell her we spent a month together and have someone else come."

Appellant has had at least a dozen paid companions over the last 25 years; some of these relationships were long, ranging from 10 to 30 years. He traveled with his companions and they accompanied him to social engagements, lunches, dinners and private parties. Appellant paid his companions by the day plus expenses; as an example, he paid one companion (not respondent) $1,000 per day and another 2,000 Euros per week. Some were paid a portion of their daily rate even when they were not with appellant; appellant's counsel writes in the opening brief that this was "essentially a retainer."

Companions changed frequently. A family friend who grew up with one of appellant's sons and spent every summer at the St. Tropez house until he was 18 testified that "there might be two or three ladies that might come and go in a period of two, three weeks, five, six weeks." A personal assistant testified that one companion would leave one day and the next one would arrive the same day. As to how frequently this happened, the assistant stated that "in one month it could happen twice." Appellant's daughter-in-law testified that she saw companions change 50 times in 10 years. Travel arrangements for these entries and exits by the companions were made by appellant's personal staff.

The next time that appellant and respondent met after St. Tropez was in late 1987 or early 1988. The place was Los Angeles where respondent had moved as part of her movie career. According to respondent, after "about four months, she became his girlfriend. He told her that he loved her." As appellant puts it, appellant and respondent "generally agree that they often spent time together between 1988 and 2007." Appellant conceded that he probably spent more time with respondent than with the other companions. Appellant and respondent traveled together and were accompanied on these trips by respondent's young daughter Sasha. At appellant's request, respondent hired a full-time nanny for Sasha so that respondent could travel with appellant with or without Sasha.*fn2

All the same, appellant's travel records between 2002 and 2007 showed that in addition to respondent, he traveled with six of his other paid companions.

According to respondent, appellant repeatedly promised her that he would take care of her no matter what happened. That is, he promised that even if they broke up or something happened to him, respondent would be taken care of. Although appellant denied making such a promise, he conceded that in 2006 he directed his trust to pay respondent, upon his death, $10,000 per month indexed for inflation for her lifetime. We are told that he has rescinded this directive.

The evidence is that respondent was fully aware of appellant's other companions and of the arrangements between appellant and these women. Respondent spent time with some of these companions and they discussed their roles in appellant's life.

Appellant and respondent had a sexual relationship between 1988 and 1992, but not afterwards. According to respondent, between 1988 and 1992 they had sexual relations "a few times." Appellant had undergone prostate surgery before he met respondent and he testified that his interest in sex declined over the years. He ...


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