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Steven C. Smith, State Bar No. 116246
SMITH CAMPBELL CLIFFORD KEARNEY GORE
1800 North Broadway, Suite 200
Santa Ana, California 92706
Telephone: (714) 550-7720
Facsimile: (714) 550-1251
Email: ssmith@scckg.com

Attorneys for Defendants
HEAL THE WORLD FOUNDATION and
UNITED FLEET



UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION


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JOHN G. BRANCA, Special
Administrator of the Estate of Michael
J. Jackson; JOHN MCCLAIN, Special
Administrator of the Estate of
Michael J. Jackson; TRIUMPH
INTERNATIONAL, INC., a California
corporation,

Plaintiffs,

vs.

HEAL THE WORLD FOUNDATION,
a California corporation; UNITED
FLEET, a California corporation; and
DOES 1-10, inclusive,

Defendants.
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CASE NO: CV-09-07084 DMG [PLAx]

Honorable Dolly M. Gee
Courtroom 7

REPLY TO PLAINTIFFS
OPPOSITION TO DEFENDANTS
MOTION FOR EXTENSION OF
TIME TO FILE NOTICE OF
APPEAL




DATE: October 24, 2011
TIME: 9:30 a.m.
CTRM: 7
Hon. Dolly M. Gee

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COME NOW Defendants Heal the World Foundation (HTWF) and United
Fleet, by and through counsel, and hereby submit the following Reply to Plaintiffs
Opposition to Defendants Motion for Extension of Time to File Notice of Appeal:

Case 2:09-cv-07084-DMG -PLA Document 275 Filed 10/11/11 Page 1 of 8 Page ID
#:9752

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In their lengthy opposition to Defendants Motion for Extension of Time,
Plaintiffs argue that Defendants should not be allowed to file a notice of appeal.
Plaintiffs arguments are meritless.
I. The standard for considering a motion for extension is undisputed.
As Plaintiffs admit in their opposition, the standard set forth in Defendants
motion is the correct standard for such a motion. In brief, a court is to consider
four factors: (1) the danger of prejudice to the non-moving party, (2) the length of
delay and its potential impact on judicial proceedings, (3) the reason for the delay,
including whether it was in the reasonable control of the movant, and (4) whether
the moving partys conduct was in good faith. Pincay v. Andrews, 389 F.3d 853,
855 (9th Cir. 2004) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S.
380, 395 (1992)). Defendants address Plaintiffs arguments on each point in turn.
II. Plaintiffs have failed to adduce any facts showing that there is a danger
of prejudice to them if Defendants are allowed to appeal.
Plaintiffs arguments regarding prejudice all rely on unsupported allegations
of prior and numerous extensions granted to Defendants. Opposition to Motion
for Extension, 5. Despite the claim, however, Plaintiffs have failed to identify any
specifics of such extension. Without citing to any supporting declarations,
Plaintiffs only examples are the two years that this matter was progressing in the
Court, and Plaintiffs alleged failure to receive the benefits of the Judgment after
its issuance. Id. Neither example shows how Plaintiffs would be prejudiced by
Defendants filing of an appeal.
In fact, Plaintiffs argument, if believed, would negate the first factor of the
Courts analysis entirely. It was Plaintiffs decision, not Defendants, to file this
case and assert their claims against Defendants. Such a decision necessarily entails
a period of time for the courts to sort out the parties respective rights, and
Plaintiffs knowing decision cannot be considered prejudicial on the part of
Defendants; nor can the failure to receive immediate relief upon filing a complaint
Case 2:09-cv-07084-DMG -PLA Document 275 Filed 10/11/11 Page 2 of 8 Page ID
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conceivably constitute prejudice. Likewise, filing a case necessarily implies the
possibility of an appeal. Accordingly, Plaintiffs cannot claim with any sincerity,
without specific evidence in support thereof, that they will be prejudiced by
Defendants appeal.
Plaintiffs do note that the Court has not ruled on their pending ex parte
request allowing them to disclose a redacted version of the Courts judgment to the
USPTO. They fail to allege, however, how a failure to immediately obtain such
reliefwhich goes above and beyond the relief they sought and received in the
Judgmentwould constitute prejudice under the Courts analysis.
Finally, Plaintiffs claim that they were not on actual notice of the appeal
because no deficient notice of appeal was timely filed. They admit, however, that
they were informed that Defendants were seeking to reserve their rights on appeal,
and that pains were taken in order to protect said rights.
Plaintiffs have cited no case law requiring actual notice, and their
argument is unpersuasive. Even if they could cite to such authority, however, the
Rule 4(a)(5) analysis is a contextual analysis, and a court is to balance the factors
against the creation of any rigid rule. Pincay, 389 F.3d at 859. Even if the notice
given did not constitute actual notice, Plaintiffs were on notice that Defendants
intended to appeal. Based on the foregoing, Plaintiffs have failed to allege any
cognizable danger of prejudice as a result of Defendants being allowed to file a
notice of appeal.
II. Plaintiffs have failed to show how the length of delay will impact judicial
proceedings.
Plaintiffs next argue that the length of delay is excessive, because
Defendants waited until the last possible day to file their motion. It is true that
Defendants were unable to file the motion until the last possible day, but,
tautologically, Defendants motion was timely filed.
Additionally, under the relevant rubric, the length of delay is analyzed only
Case 2:09-cv-07084-DMG -PLA Document 275 Filed 10/11/11 Page 3 of 8 Page ID
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as to its potential impact on judicial proceedings. As Defendants admit, the only
pending judicial proceeding is their ex parte request regarding the USPTO, which
requests relief in excess of that granted in the Judgment. Accordingly, the length of
delay will not have any appreciable impact on judicial proceedings.
III. Plaintiffs have failed to prove that the reason for the delay was
inexcusable neglect, particularly given the unique circumstances here.
Plaintiffs argue that the reason for delay was not excusable, because Mr.
Barbag should have looked up the rule, and because Defendants should be
presumed to know the rule themselves. Both arguments are unpersuasive.
Plaintiffs fail to appreciate the context of this matter, including Mr. Barbags
emergency intervention in the case during its final stages, and his complete
inexperience with federal rules. The determining factor in the case cited by
Plaintiffs was the clear inference of [the attorneys] own misgivings concerning
the time for appeal, evidenced by his earnestly seeking to consult an attorney more
experienced in the field. Okray v. Dennis (In re Okray), 2009 U.S. Dist. LEXIS
69853, *89 (D. Ala. Aug. 7, 2009). There is no such evidence here that Mr.
Barbag had clear knowledge of his own misgivings concerning the appeal date,
which is supported by the fact that he did not even consult the Rules of Appellate
Procedure until August 26, 2011well after the appeal period had run. While this
was certainly neglectful on his part, it does not rise to the level of the attorney in
Okray, who was clearly aware that he did not know the appeal date, and yet with
said misgivings still failed to look up the applicable rule. Additionally, it is unclear
whether the Okray attorney, who was inexperienced in bankruptcy law, had the
same level of inexperience (i.e., none) as Mr. Barbag.
The unique facts of this case make it distinguishable to Okray, and more
similar to United States v. Brown, 133 F.3d 993 (7th Cir. 1998), where the attorney
at issue also had no federal experience. Accordingly, despite Plaintiffs claims, this
is not a case where granting Defendants an additional five days in which to file a
Case 2:09-cv-07084-DMG -PLA Document 275 Filed 10/11/11 Page 4 of 8 Page ID
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notice of appeal would turn Rule 4(a)(5) into a device to convert automatically the
thirty-day appeal period into a sixty-day period. Although it was certainly
neglectful, Mr. Barbags failure to read the applicable rule was neither inexcusable
nor grossly neglectful due to the mitigating factors of his complete lack of federal
experience and his late intervention in the case.
Plaintiffs argument that Defendants shouldnt have relied on the advice of
their attorney is also unpersuasive. In sum, Plaintiffs argument is that because
Defendants filed dozens of trademark applications and undertook similar tasks,
they should be held to the same standard as a pro se litigant. Plaintiffs have cited
no authority for such a position for good reasonthere is none. A party
represented by counsel is reasonable in relying on counsel for legal advice. The
ability to file a trademark application does not infer familiarity with the Federal
Rules of Appellate Practice. Accordingly, the fact that Defendants did not
independently research the applicable appeal period is immaterial to the issue
represented parties are not held to such a standard.
IV. Plaintiffs have failed to adduce any facts showing bad faith conduct by
Defendants in seeking an extension to appeal.
The final factor considered on a motion for extension under Rule 4(a)(5) is
whether the moving partys conduct is in good faith. Despite given the opportunity
to address this factor on its merits, Plaintiffs have refused to do so, instead deciding
to cast aspersions on unrelated alleged conduct.
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It is clear from the language of
the case law that the conduct at issue is not any aspect of the partys conduct ever,

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Additionally, if there is fault to be assigned for not complying with the Judgment,
Plaintiffs are just as culpable as Defendants. Despite clear language in the
Memorandum of Understanding and Judgment specifying that Plaintiffs are to pay
for Defendants expenses, including legal expenses, Plaintiffs have absolutely
refused to do so. Plaintiffs claims that their refusal is based on allegedly inflated
amounts is no excuse for their failure to pay those amounts that they believe are
reasonable. It is disingenuous for Plaintiffs to assert that Defendants are at fault for
failing to abide by the Memorandum of Understanding, when Plaintiffs have
absolutely refused to fulfill their responsibilities thereunder.
Case 2:09-cv-07084-DMG -PLA Document 275 Filed 10/11/11 Page 5 of 8 Page ID
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but rather only that conduct relevant to the need for an extension.
Here, as previously stated, Defendants conduct in moving for an extension
was undeniably done in good faith. Defendants represented to Plaintiffs from prior
to the issuance of the Judgment that they were interesting in pursuing an appeal,
and their prior attorney took some great pains to ensure that their appellate rights
were reserved. After the Judgment, the undisputed facts are that Defendants
diligently sought for appellate counsel, and that they relied upon the advice of their
attorney (to their detriment) regarding the appeal period. Plaintiffs have not
disputed these crucial facts. Accordingly, as argued previously, this factor weighs
in favor of allowing Defendants the requested relief.
V. Plaintiffs other arguments are unpersuasive and irrelevant to the
present issue.
Plaintiffs also raise other, irrelevant reasons for denying Defendants motion,
including that Defendants chances for success on appeal are allegedly low. As
Plaintiffs admit elsewhere in their opposition, however, the likelihood of success on
appeal is not a factor on which a Rule 4(a)(5) determination is to be based. It is
entirely illogical to allow a court that would be subject to reversal if appealed to
deny to allow an appeal on such grounds.
Additionally, Plaintiffs are factually incorrect. There is substantial evidence,
both prior to and subsequent to the Courts ruling, that Defendants then-attorney
had abdicated his duties to his client, and was actively attempting to undermine
Defendants case. Accordingly, even if it was appropriate to consider Defendants
likelihood of success on appeal (which it is not), granting the requested relief would
still be appropriate.
/ / /
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/ / /
Case 2:09-cv-07084-DMG -PLA Document 275 Filed 10/11/11 Page 6 of 8 Page ID
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VI. Conclusion
Based upon the foregoing, as well as the previously submitted papers,
Defendants respectfully request that the Court grant a brief, five-day extension in
which to file a notice of appeal.



Dated: October 11, 2011 SMITH CAMPBELL CLIFFORD KEARNEY GORE
A Professional Law Corporation



By: /s/ Steven C. Smith
STEVEN C. SMITH
Attorneys for Defendants Heal the World
Foundation and United Fleet
Case 2:09-cv-07084-DMG -PLA Document 275 Filed 10/11/11 Page 7 of 8 Page ID
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PROOF OF SERVICE
Branca et al. vs. Heal the World Foundation, et al.

I declare that I am employed in the City of Santa Ana, County of Orange,
State of California. I am over the age of eighteen years and not a party to the
within action; my business address is: 1800 North Broadway, Suite 200, Santa
Ana, California 92706

On October 11, 2011, I served the foregoing document(s):

REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS
MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF
APPEAL FILING

on all interested parties in this action by placing [ ] the original [X] a true copy
thereof, enclosed in a sealed envelope with postage pre-paid, addressed as follows:


Vincent H. Chieffo, State Bar No. 49069
Nina D. Boyajian, State Bar No. 246415
GREENBERG TRAURIG, LLP
2450 Colorado Avenue, Suite 400E
Santa Monica, CA 90404-5524
Phone: (310) 586-7700
Fax: (310) 586-7800
ChieffoV@gtlaw.com
BoyajianN@gtlaw.com

Attorneys for Plaintiffs John G.
Branca and John McClain,
Special Administrators of the
Estate of Michael J. Jackson,
Triumph International, Inc.




[X] By ELECTRONIC FILE TRANSFER TO ECF FILE & SERVE:
By transmitting a true copy of the document(s) listed above for service on all
parties in this case pursuant to applicable statutes, local rules and/or order of the
Court.

I declare that I am employed in the office of a member of the bar of this court
at whose direction the service was made.

Executed on October 11, 2011, at Santa Ana, California.




/s/ Kaylene Canaan
Kaylene Canaan


Case 2:09-cv-07084-DMG -PLA Document 275 Filed 10/11/11 Page 8 of 8 Page ID
#:9759