$5.77M judgment stands in Girls Gone Wild case

A judge has refused to set aside a $5.77 million bench judgment against the makers of the Girls Gone Wild DVDs for using a woman’s image without her consent.

St. Louis Circuit Judge John F. “Jack” Garvey issued the bench judgment March 5, a few days after a trial at which the defendants — MRA Holding and Mantra Films Inc. — failed to appear.

Defense attorney David A. Dalton II, of St. Peters, withdrew from the case in January. Dalton admitted in a telephone interview in April that he filed a motion to withdraw but then decided not to follow through with the motion. However, he never took it off the calendar, he didn’t show up at the hearing, and St. Louis Circuit Judge Joan Moriarty granted the motion.

He re-entered his appearance in the case and promptly filed post-trial motions for a new trial and to set aside the judgment on the basis of excusable neglect.

But on Tuesday, Garvey issued an order finding the defendants “guilty of inexcusable neglect.”

‘At a loss to explain’

The defendants had notice of the trial setting, and they did not show that they were unaware of the case proceedings, he said. They were also given notice that Dalton was planning to file a motion to withdraw, the judge said.

“This court is at a loss to explain what else could have been done to procure the Defendants presence at trial,” Garvey wrote. “The court and Plaintiff were placed in a position where all proper steps were taken placing Defendant on notice and setting the matter for trial. This court had no other choice but to enter Judgment at the end of Plaintiff’s uncontested case. Defendants chose to ignore the court.”

A court document indicates Mantra Films Inc. and MRA Holding were notified of the Feb. 27 trial via two fax numbers, four addresses and three email addresses. Dalton testified in a May 23 deposition that Joe Francis’ lawyer, Aaron Aftergood, of the Los Angeles-based Aftergood Law Firm, emailed to Dalton confirmation that he and the defendants had received notice on Feb. 22 of the trial setting; the email was sent to Dalton on April 27 in response to his request for documents showing the defendants had notice of the trial.

In the motion to set aside the judgment, Dalton argued that he never received a copy of the order granting his withdrawal, which also directed him to forward the order to his clients. Because he didn’t receive the order, he couldn’t send it to his clients, and they believed he was still representing them, he said in the motion. But because he had withdrawn, he didn’t receive any notices of the trial setting, he said. Dalton also admitted in his deposition that he didn’t track the case on Case.net, the state court’s online docketing system.

While the motion details Dalton’s failures, nothing in it states that the defendants didn’t know of the Feb. 27 trial date.

When the lawsuit was filed in 2008, it was filed under the “Jane Doe” pseudonym, but in January the plaintiff filed a third amended petition that used her given name, Tamara Favazza.

The Feb. 27 bench trial was the second trial in this case. On July 22, 2010, a St. Louis jury entered a defense verdict.

In May 2004, Favazza and her friends were at Rum Jungle on Laclede’s Landing, where a Girls Gone Wild taping was taking place. How soon she knew of the taping was a matter of dispute between the parties. During the evening, she danced in front of a camera. She was fully clothed and said she had no intention of exposing her breasts, but another woman at the event reached and pulled down Favazza’s top.

In November 2010, St. Louis Circuit Judge John J. Riley granted the plaintiff’s motion for a new trial.

He said in his order that the jury’s finding of consent was against the weight of the evidence. “It is clear from viewing the video that plaintiff was an unwilling participant in the exposure of her breasts and she can be seen visibly mouthing the word ‘no’ and she immediately covered herself up after her top was pulled down,” Riley wrote.

MRA Holding dissolved in March. Last August, MRA Holding assigned its Girls Gone Wild trademark to Path Media Holdings, based on St. Kitts-Nevis, an island in the Caribbean.

In Tuesday’s order, Garvey said there is no reason to stay execution of the judgment or to halt a judgment-debtor examination.

Jeffrey P. Medler, of Medler & Roither in Clayton, represents Favazza. He and Dalton could not be reached for comment. Aftergood declined to comment.

The case is Favazza v. MRA Holding et al., 0822-CC01561-01.