There seems to be a fair amount of confusion in the adult industry, as reflected by statements made on social media, about the status of the ‘Jane Doe’ case brought against against LA Direct Models and Derek Hay by Charlotte Cross, Sofi Ryan, Shay Evans a.k.a. Gia Milana, Hadley Viscara, and Andi Rye a.k.a. Zoe Sparx a.k.a. Jane Dog. The confusion is understandable, as most people have never heard of a trial de novo.
The general understanding is that LA Direct and Derek Hay are using a common legal strategy to appeal an unfavorable judgment from the California Labor Commissioner that, overall, did not go their way.
While that interpretation is not wrong, it is far from a full, accurate portrait of what is happening.
Unlike a traditional appeal scenario, in which an appellate court parses, reviews and rules on a lower court’s decision, in this type of case, LA Direct and Hay have requested, and received as a matter of right, a brand new trial.
In other words, the “trial de novo” (a new trial) is not an appeal; it is the result of the filing of the Notice of Appeal.
Having found the Labor Commissioner’s adjudication process wanting, Hay and LA Direct Models now get a do-over in civil court in Los Angeles.
Despite their wave of self-congratulatory tweets, the sum awarded to the Does in the now moot Labor Commissioner decision is now uncollectible — and, this time around, the Does could end up owing big money to Hay and LADM, as the “prayer” on page 3, above, suggests.
The Labor Commissioner
Normally, one benefits from filing before the Labor Commissioner, instead of the Superior Court, when one’s case is really simple or lacking nuance, and/or when the petitioner(s) don’t have a lot of money to spend.
Their attorney, Allan Gelbard, a long-time adversary of Hay’s who lost to him twice before, seemingly took a different approach.
Figuring that the Hearing Officer would likely be an attorney working for the state who was out of his/her depth, especially in a case with multiple petitioners and involving the porn industry, he put on a complex case punctuated by Gelbard’s own grandstanding, emotional outbursts by the Does, textbook hearsay, and unsupported testimony in place of documentary evidence.
Gelbard being Gelbard, he loaded the complaint with allegations for which, ultimately, he would produce no evidence during the ten days of hearings, including claims that Hay had a beneficial business relationship with an escort agency, . . . along with this gem:
He also cited the NY Post tabloid as well as other news stories and opinion pieces … because Gelbard.
The second part of Gelbard’s strategy was, undoubtedly, to sandbag LA Direct and Hay with a litany of ‘he said-she said’ allegations based on alleged events — none of which had ever previously been heard — or dreamed of — by Hay, or anyone else outside the Law Offices of Allan Gelbard.
And, in large part, it worked.
After the Labor Commissioner’s decision, Derek Hay was quoted as saying that the Labor Commissioner had allowed “no pretrial discovery, and it was therefore not possible to mount a meaningful defense, having no idea of the evidence that would be brought forth to support the charges.”
As LA Direct’s attorney, Richard Freeman, noted in his Closing Brief, in “their fabricated allegations against Direct Models and Derek Hay . . . [t]he five [Jane Doe] Petitioners utilized eerily similar wording and description[s]” to give what amounted to scripted testimony:
As Petitioners’ counsel has noted in his salacious introduction to this Petition, filed on June 19, 2018 . . . , the “Me Too” movement empowered numerous women to air their claims and allegations. However, not all claims and allegations were true as will be, or has been established, by the evidence in this case. In this case, five Petitioners, (“Us Too”) recruited and encouraged by Petitioner Charlotte Cross have made numerous allegations of wrongdoing against Respondents, under the provisions of the Talent Agent Act (“TAA”) and other provisions of law. The Hearing has amply demonstrated that Ms. Cross is the initial provocateur and ringleader of the “Gang of Five” who have banded together with similarly worded contentions and allegations about their contractual dealings with Derek Hay, each hoping to add credibility to their individual claims by joining with others.
In their initial filing, the Petitioners elected to be known as “Jane Does 1- 5” while making their very scurrilous … allegations [publicly] against Direct Models, Inc. (“Direct Models”) and its long-term principal, Derek Hay. After hiding behind the Jane Doe labels while publicly blasting Derek Hay and Direct Models, the Petitioners are now quite willing to be known by their “stage names” as they seek to derive as much publicity and attention from their allegations as they can, including participation in a public video done by NBC.
Gelbard and the Does were able to get away with this because, 1) at these hearings, California’s rules of evidence (which exist, essentially, to preserve fairness) do not apply; and, 2) when before the Labor Commissioner, a respondent cannot get the typical discovery that one would be able to conduct in regular civil case.
Without discovery, the right to take depositions and to propound interrogatories — which is crucial is in cases where evidence is disputed — LA Direct, Hay and their attorney would be walking in totally blind, with no idea what kind of stories the Does would tell.
This is why the granting of a trial de novo is so significant.
Trial de novo
At the superior court level, the decision of the Labor Commissioner is entitled to no weight whatsoever. This new hearing will be heard de novo (anew), and the Superior Court will consider nothing that took place at the Labor Commissioner hearing. It is as if the labor hearing never happened.
“In the Superior Court, this case will be just like any other lawsuit where two parties have a dispute,” Freeman told AVN. “The parties will be able to conduct full and complete civil discovery. We will be able to send interrogatories to each of the Jane Doe claimants, we will be able to request the production of documents from them, we will be able to take their depositions, we will be able to subpoena documents from any other third parties, we will be able to get phone records and bank records and other documents that we did not have access to at the Labor Commissioner hearing. We will be able to take the depositions of other witnesses in the case if we choose to.“
Not only isn’t the Jane Doe case over, it’s just getting started. And, due to the crowded courts in Los Angeles County, as well coronavirus-related delays, the smart money is on it dragging on for a long time.
