Kid’s Stuff – Daily Journal

Verdicts & Settlements
No. 5 of the 10 Largest Verdicts of 2000
Jan 31, 2001
By Ed Kimble

Convincing the jury that the lead defendant was a villain in Russomano v. Russo, LC031514 (Los Angeles Super. Ct., verdict July 20, 2000) was the least of Santa Barbara business litigator A. Barry Cappello’s trial challenges.

After all, Gianni Russo had launched his acting career by portraying Talia Shire’s abusive husband, Carlo Rizzi, in the 1972 film classic “The Godfather.”

The bigger problem was that he never appeared during the three-month trial to decide whether he and his production companies had breached a settlement agreement limiting the intellectual property elements they could use from Diane Russomano’s “Rickey Rocket” children’s books and television scripts.

“It made it very difficult,” says defense attorney Linda M. Layton, then a sole practitioner in Valencia. “Not that I was representing him, but I was representing companies formed by him, so in essence it was like I was trying to represent a ghost.”

Russomano and Russo met in 1993 and embarked on production of a television series based on her Rickey Rocket character, but a struggle for creative control during filming of the pilot proved insurmountable.

Russo had obtained financing for production of 40 episodes, so he retooled the show as “A.J.’s Time Travelers” and sought declaratory relief as to his and Russomano’s respective intellectual property rights.

In October 1994, they reached an agreement that allowed Russo to continue production so long as key elements of the Rickey Rocket concept were not included in “A.J.’s Time Travelers.” But when the first “Time Travelers” episode aired in December 1994, Russomano saw what she believed were several of those prohibited elements: a “rocket-like machine” traveling “through air, space or water.”

“They literally take the Rickey Rocket pilot and the Rickey Rocket scripts, and they use the same actor,” Cappello says.

Russomano’s suit for breach of the 1994 settlement contract and unfair business practices violating Bus. & Prof. Code Section 17200 named Russo and the various companies that financed and produced the show. The suit also named Fox Children’s Network, which aired four episodes in the United States and a defendant who distributed the show for broadcast in 140 other countries.

Cappello described Russo to the jury as a “mob wannabe” and as early as voir dire suggested the “slime” factor present in his dealings with writer Russomano, a kindergarten teacher who developed the Rickey Rocket character and story lines to teach history and science to her most introverted student.

Russomano is also a single mother. Fearing that the defense team would “make a lot of the fact that our client had a baby out of wedlock with a guy in the Mafia in New York when she was 22,” near the end of voir dire, Cappello introduced the jurors to Russomano’s son, who was now a teen. Cappello polled them about the impact this knowledge might have on their decision.

“It showed pretty early on that defendants were going to use the slime defense,” Cappello says. “They stayed away from it like the plague after I did that.”

After opening arguments, Judge Joseph R. Kalin granted a nonsuit as to Fox, which was represented by high-powered trial lawyer John Quinn of Quinn Emanuel Urquhart Oliver & Hedges.

“So what happens with the other lawyers?” Cappello says. “Now they’re sitting there naked.”

The disappearance of Fox’s deep pockets was something Cappello would have to worry about later, because another opportunity was knocking.

“I started putting on the defendants’ witnesses first, so I start having the story of how Russomano had her “baby” stolen being put on by the bad guys,” Cappello says.

The disparity in experience between Cappello and defense attorney Linda Layton is striking. Cappello began his legal career 36 years ago as a deputy attorney general for the state of California and served as Santa Barbara’s city attorney from 1971 to 1977, the year he founded his law firm, Cappello & McCann. During his career, the noted lawyer has netted more than $750 million in verdicts and settlements.

In contrast, Layton had scarcely two years of practice under her belt when the trial began. However, she got one of her clients out on a summary judgment motion before trial and won nonsuit for two other clients after presenting her case in chief.

Kalin granted the defendants’ motions for a new trial unless the plaintiff accepted a remittitur slashing the $46 million in punitive damages down to $6 million. Russomano accepted the remittitur for all the defendants except BKN Kids Network; the judge had chopped that award down from $25 million to $250,000.

The present value of the award is $14.8 million, Cappello says.

Russo and one of his companies, Time Travelers Inc., filed for bankruptcy protection before the trial began, and at least one of the other companies is no longer active. Cappello plans to go to trial against BKN one more time and file alter ego litigation against directors of the defendants that are bankrupt or defunct. He also is appealing the nonsuit granted Fox Children’s Network.

“A.J.’s Time Travelers” is probably on the shelf forever, Layton says.

“It was a great kids’ show,” he says. “We were hoping to salvage the situation.”

Verdict
$54.2 million
Case
Russomano v. Russo
Type
Breach of IP Contract

Plaintiff counsel: A. Barry Cappello, partner, and J. Paul Gignac, partner, Cappello & McCann, Santa Barbara
Defense counsel: Linda M. Layton, Law Offices of Linda M. Layton, Valencia
Case cite: Russomano v. Russon, LC031514 (Los Angeles Super. Ct., Central Civil West, July 20, 2000)
Judge: Joseph R. Kalin
Status: On Appeal. Three of nine defendants under verdict have entered confidential settlement agreements,
the plaintiffs has accepted remittiturs as to all but one of the remaining defendants and seeks retrial against that
defendant, BKN Children’s Network.

© 2001 Verdicts & Settlements. All rights reserved.

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