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TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that on May 31,2017, at 8:30 a.m., or as soon thereafter as the

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j~ matter may be heard in Department M of the Los Angeles Superior Court, located at 1725 Main

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~ Street,Santa Monica, California 90401,defendants MJJ Productions,Inc.(sued as"Doe 1")and

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MJJ Ventures,Inc.(sued as"Doe 2"), will bring on for hearing their demurrer to the First

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~Amended Complaint ofplaintiff"Jane AA Doe."(Plaintifffiled her action under a pseudonymous

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name. Defendant reserve the right to challenge the propriety of doing so.)

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The demurrer will be made pursuant to Code of Civil Procedure section 430.10 on the

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9 grounds that the First Amended Complaint is insufficiently pleaded because, among other things,

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it is uncertain and fails to state facts sufficient to constitute timely causes of action against either

 

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or both defendants MJJ Productions,Inc.,and MJJ Ventures,Inc.

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12 This demurrer follows a meet and confer pursuant to Code of Civil Procedure § 430.41.

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~~m 13 D eclaration of Jonathan P. Steinsapir(attached) at ¶ 2.

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14 T his demurrer is based upon this Notice,the attached Demurrer,the attached

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15 ~Memorandum ofPoints and Authorities,the Request for Judicial Notice,the First Amended

~ ~~D 16 C omplaint,the prior complaint,any further briefing on this matter,the Court's files and records in

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this case and in the related cases(including the probate proceedings, Case No. BP 117321),and on

such other and further written and oral argument as may be presented in connection with any

hearing on this matter.

D ATED: March 31,2017

Respectfully Submitted:

KINSELLA WEITZMAN ISER KUMP

& ALDISERT LLP

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Jonathan Sfeinsapir

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A ttorneys for Defendants MJJ Productions, Inc.

(sued as"Doe 1")and MJJ Ventures,Inc.(sued as

"Doe 2")

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

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DEMURRER

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Defendants MJJ Productions,Inc.,and MJJ Ventures,Inc.(collectively,"the

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C orporations" or"Defendants"), herby demur to Plaintiffls First Amended Complaint on the

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following grounds:

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A s to MJJ Ventures only, MJJ Ventures did not exist until February 26, 1991.(Request for

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Judicial Notice,Ex. A.)All ofthe allegedly tortious conduct here occurred prior that time.Thus,

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M JJ Ventures could not have possibly engaged in any of the tortious conduct and could not

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possibly be the legal cause(or"proximate cause")ofany ofthe harm supposedly suffered by

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Plaintiffas a result ofthat conduct. Accordingly,the First Amended Complaint fails to state facts

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sufficient to constitute any cause of action against MJJ Ventures. And no amendment could

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possibly cure thatdefect.

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The remaining bases below are applicable to both Defendants:

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1.

The First Amended Complaint fails to state sufficient facts to support a valid and

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timely cause ofaction for"Intentional Infliction ofEmotional Distress"(the First Cause of

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Action).No amendment can cure these defects.

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2.

The First Amended Complaint fails to state sufficient facts to support a valid and

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timely cause ofaction for"Negligence"(the Second Cause of Action).No amendment can cure

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these defects.

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3.

The First Amended Complaint fails to state sufficientfacts to support a valid and

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timely cause ofaction for"Negligent Supervision"(the Third Cause ofAction).No amendment

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can cure these defects.

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4.

The First Amended Complaint fails to state sufficient facts to support a valid and

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timely cause ofaction for"Negligent Retention/Hiring"(the Fourth Cause ofAction).No

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amendment can cure these defects.

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5.

The First Amended Complaint fails to state sufficient facts to support a valid and

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timely cause ofaction for "Negligent Failure To Train, Warn or Educate"(the Fifth Cause of

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Action).No amendment can cure these defects.

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6.

The First Amended Complaint fails to state sufficient facts to support a valid and

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF °JANE AA DOE"

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timely cause ofaction for"Breach ofFiduciary Duty"(the Sixth Cause ofAction).No amendment

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can cure these defects.

W HEREFORE,the Corporations pray that this demurrer be sustained without leave to

amend, and that the Court grant such other and further reliefas the Court deems just and proper.

D ATED: March 31,2017

Respectfully Submitted:

KINSELLA WEITZMAN ISER KUMP

& ALDISERT LLP

B

y:

Jonathan Steinsapir

A ttorneys for Defendants MJJ Productions, Inc.

(sued as"Doe 1")and MJJ Ventures,Inc.(sued as

"Doe 2")

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

 

I.

INTRODUCTION

 

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In

this case,a pseudonynmous plaintiff,Jane AA Doe("Ms. Doe"),claims she was

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olested by the late Michael Jackson over thirty years ago,between 1986 and 1989, when she was

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between 12 and 15 years-old. Ms. Doe never filed a creditor's claim againstthe Estate of Michael

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~Jackson. In a transparent effort to bypass the probate claims filing requirements—which are an

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absolute and complete bar to this lawsuit for money damages—Ms. Doe has sued two

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corporations,MJJ Productions,Inc.(sued as"Doe 1")and MJJ Ventures,Inc.(sued as"Doe 2")

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(collectively"the Corporations"),claiming thatthey are legallyresponsiblefor her molestation.

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s. Doe admits that both corporations were "established by" Michael Jackson to conduct

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M ichael's own business. One of these corporations, MJJ Ventures, did not even exist at the time of

 

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the alleged bad acts,and therefore has no business whatsoever being in this case. Likewise,there

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is no legal basisfor holding the other corporation,MJJ Productions,liable here either. Ms.Doe

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out of—or even relate to—MJJ Productions' business,or its relationship to its"president/owner"

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ichael Jackson. Her alleged molestation would have occurred with or without MJJ Productions.

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ichael Jackson was put to rest seven-and-a-half years before Ms. Doe emerged with her

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allegations. She has no coherent explanation for why she did not come forward long ago. This

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case should have never been filed,and this demurrer should be sustained without leave to amend.

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II.

FACTUAL BACKGROUND

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Sadly, Michael Jackson will never have an opportunity to answer Ms. Doe's accusations.

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The Estate and the Corporations,however,unequivocally deny them and note thatthe operative

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complaint is rife with easily proven falsehoods about any number of matters. That said; this is a

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demurrer,and the Corporations recognize thatthe Court must treattheproperlypleadedfacts of

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the First Amended Complaint("FAC" orjust"Complaint")as undisputed for present purposes.

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s. Doe alleges that Michael Jackson established Defendant MJJ Productions as "his

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primary business entity," and established Defendant MJJ Ventures "in part for the purpose of

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placing children,like[Ms. Doe] in contact with Michael Jackson on various projects."(SAC ¶¶ 3-

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4.)Ms. Doe alleges that: Michael Jackson was "the president/owner"ofboth entities,(ibid.);that

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

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~both entities were his"alter egos for the childhood sexual abuse alleged herein"(id. ¶¶ 5);and that

 

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~they were Michael Jackson's"alternative personalit[ies]."(Id. ¶ 9.)

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A lthough not alleged, the Court can and should take judicial notice (as it has before)that

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~MJJ Ventures did not exist until February 26, 1991 (the date ofits incorporation).See Request for

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Judicial Notice ("RJN"), Ex. A. This was well after the alleged abuse ended, so it could not

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possibly have put Plaintiff"in contact with Michael" as falsely alleged by Ms. Doe.(FAC ¶ 4.)

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s. Doe was born in February 1974.(FAC 1.)In 1986, when she was 12 years old, she

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~and her family were returning from a trip to San Francisco and stopped "to sightsee" outside the

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Jacksons' family home on Hayvenhurt Avenue in Encino.(Id. ¶ 10.) As Ms. Doe and her family

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w ere at the gates to the home, Michael apparently drove through the gates in his Mercedes. He

 

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then "signaled to his security guard to allow[Ms. Doe] and her mother access to the property,

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beyond the gates."(Ibid.) Ms. Doe and her mother were then escorted in by the security guard, and

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13 spoke with Michael for several minutes. Michael then left them, and drove to the residence. The

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supposedly "peer[ed] at them through a window in the residence."(Ibid.)

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ichael then "spoke with the security guard through his walkie talkie and asked him to

'~o~~ 17 ~obtain" Ms.Doe's family's phone number.(Id. 11.)Soon,Michael allegedly started speaking

 

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with her weekly and even daily.(Ibid.)Michael supposedly began sexually abusing her shortly

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thereafter until around when she turned fifteen in 1989.(Id. ¶ 12.)

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Before,during and afterthe period ofsexual abuse,Michael bought Plaintiffgifts.and sent

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~her notes.(Id. ¶ 14.)The Corporations allegedly"orchestrated,facilitated and enabled the sexual

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abuse of Ms. Doe "by assisting in the grooming process" by: buying gifts; picking up Plaintiff

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and taking her to Michael to spend time together; sending letters or notes to her; setting up

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m eetings with her;"isolating"her with Michael"for extended periods oftime";and "booking and

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paying for accomodations"for Michael and Ms.Doe.(Id. ¶ 16.)

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T he alleged abuse occurred at numerous locations where Michael lived or worked and

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~"conducted business on behalfof the Corporations.(Id. ¶ 17) Ms. Doe alleges,in conclusory

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fashion,that Michael and the Corporations"took physical custody and control"of Ms. Doe.(Ibid.)

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

Based on the above factual allegations,Ms.Doe allegesthatthe Corporations owed her a

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~myriad of vague(and,in many cases,inapt)duties including:"adequate supervision" and adequate

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~"train[ing ofJ teachers,mentors,coaches,and advisors";and adequate supervision of"youth

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~programs."(Id. ¶ 43.)Ms. Doe alleges that as a "guest" where Michael was employed and worked,

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she was under the Corporations' care,thus creating a special relationship.(Id. ¶ 57.)She further

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allegesthatthe Corporations were"employers controlling Michael Jackson."(Ibid.)She alleges

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that the Corporations: had knowledge of prior abuse (consisting of what is not specified) and

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failed to report it; allowed Michael "to remain in a position of authority" despite such knowledge;

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placed Michael"in charge of young boys"(but not"young girls"like Ms. Doe apparently);

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"allowed" Michael to come into contact with minors; and they "h[eld] out Michael Jackson

to

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the community as being in good standing and trustworthy."(Id. ¶¶ 62-63.)Ms. Doe alleges the

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Corporations"had the authority and ability to stop" Michael's alleged abuse, but"negligently

~ ~~M 13 and/or willfully failed to do so" as part of a plan to avoid detection and scandal.(Id. ¶ 66.)

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15 ~children were("such as Wade Robson")for "purported grooming" in the music and entertainment

M s. Doe alleges that:(1) Plaintiff was taken in by Michael and the Corporations as many

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minors'travel,lodging and accommodations;(4)minors were"regularlytrained and mentored by"

 

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M ichael;and(5)by hiring minors and providing them with basic care ,the Corporations owed

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19 them a "special duty."(Id. ¶ 68.)These alleged bases for a duty mal4es little to no sense, as there

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20 are no allegations that Ms. Doe was involved,trained or mentored in the entertainment industry.

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s. Doe also alleges that the Corporations were created in part to "provide for the welfare

and safety ofminor children."(FAC ¶ 70.) 1Ms. Doe alleges that some unnamed "board of

directors and officers"ofthe Corporations"conferred substantial actual and ostensible authority

unto Michael Jackson." They "permitted" Michael: to sleep in bed with minors(in his own home);

1 This allegation is contrary to the ludicrous allegation, earlier in the Complaint,that the

Corporations were running the"most sophisticated public child sexual abuse procurement and

facilitation organization."(FAC ¶ 5.)

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DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

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~to "train and coach" minors;to travel with minors; and to "have authority" over minors.(Ibid.)

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M s. Doe alleges that the Corporations employed individuals who "were ceded authority by

3 ~[the Corporations] to supervise Michael Jackson and the minors in his charge."(Id. ¶ 71.) Ms. Doe

4 ~further allegesthat:(1)Norma Staikos and Jolie Levine were employed by the Corporations;

5 ~(2)the "safety, welfare,and well-being of all minor children entrusted to [the Corporations] was

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~ Ms. Staikos' and Ms. Levine's primary responsibility" and they were required to protect minors

7 from dangers including Michael Jackson; and (3) Michael Jackson took no actions to provide for

8 safety and care.(Ibid.)The Complaint further alleges that Ms. Levine and Ms. Staikos somehow

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had the authority to limit Michael Jackson's access to children by telling the children's parents

10 that the parents had to be present with their children at all times, and enforcing some unknown

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home). Allegedly,Ms. Levine and Ms. Staikos assured parents ofminors thattheir children would

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13 be safe at Michael's home.(Ibid.)Finally, Ms. Doe alleges that Ms. Levine and Ms. Staikos

14 "knew or had reason to know" that Michael Jackson had a propensity to abuse children and had

15 the authority to implement some sort of"reasonable safeguards," but failed to do so.(Id. ¶ 72.)

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N otably, Ms. Doe does not allege that she ever met Ms. Levine or Ms. Staikos,ever spoke

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~to them, or was ever in their custody. Nor does she allege that there were any actual allegations of

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abuse against Michael before or during her alleged abuse, who was abused,or how and why Ms.

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Levine or Ms. Staikos would have known of such abuse.

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s. Doe alleges that"[b]efore, during and after the sexual abuse," she was under extreme

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~duress,including being told she would be physically harmed ifshe told anybody.(Id. ¶ 45.)The

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coercive effects ofthe supposed threats(thirty years ago)did not cease until Wade Robson filed an

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action(over three years before this one), and was not physically harmed.(Ibid.)Remarkably,in

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September 2016, Ms. Doe alleges that she reflected on the abuse and "for the firsttime in her life,

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reasonably discovered that her psychological injuries

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caused by the sexual abuse."(Id.

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¶ 46.)Ms.Doe allegesthatshe received numerous paymentsfrom Jackson and the Corporations

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after the abuse ended,from 1990 through 1993.(Id. ¶¶ 47-52.) Allegedly these payments were

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m ade "to compensate her for the sexual abuse she had suffered at the hands of Michael Jackson."

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

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~(Id. ¶¶ 47-52.)Thus,Ms. Doe alleges that all statutes oflimitations have been tolled since the

2 ~payments were made pursuant to Insurance Code section 11583.(Id. ¶ 55.)

3 Although the Corporations do not believe thatthis tolling statute applies here for various

4 reasons, this demurrer is focused on the substantive "merits" ofthe allegations against the

5 Corporations,and nottheirtimeliness.

6 III.

ARGUMENT

7 The legal standards here are familiaz. A demurrer shall be sustained ifthe pleading "does

8 ~not state facts sufficient to constitute a cause of action." Code Civ. Proc. § 430.10. The Court must

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9 ~ assume the truth of all "properly pleaded" facts, but it may "not assume the truth of contentions,

10 ~ deductions, or conclusions of fact or law." Leyva v. Nielson, 83 Ca1.App.4th 1061, 1063 (2000).

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12 ~ noticeable. Code Civ. Proc. § 430.30(a); Donabedian v. Mercury Ins. Co., 116 Ca1.App.4th 968,

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994 (2004); Blank v. Kievan, 39 Ca1.3d 311, 318 (1985).

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A.

The Complaint Fails to State any Causes of Action Against MJJ Ventures

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B ecause It Did Not Exist At the Time of the Allegedly Tortious Conduct.

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The Court can and should takejudicial notice that MJJ Ventures was incorporated by the

17 ~State ofCalifornia on February 26, 1991.See Requestfor Judicial Notice,Ex. A (certificate of

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18 incorporation and articles ofincorporation for MJJ Ventures as filed with the California Secretary

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19 of State); Evid. Code § 452(c); Friends ofShingle Springs Interchange, Inc. v. County ofEZ

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20 ~Dorado,200 Ca1.App.4th 1470, 1484(2011)(takingjudicial notice on demurrer ofarticles of

21 incorporation;they are "properly the subject ofjudicial notice as documents reflecting official acts

22 ofthe executive department ofthe State ofCalifornia")

23 The Complaint clearly alleges that all ofthe allegedly tortious acts and omissions—i.e.,the

24 alleged molestation and the Corporations' supposed failure to prevent it,etc

occurred between

25 1986 and 1989, when Ms. Doe was between 12 and 15 years-old.(FAC ¶ 12.) It stands to reason

26 that a corporation, like a person, cannot engage in tortious conduct years before it even exists.

27 A nother way to view this is that none of MJJ Ventures' acts or omissions could be the cause of

28 any ofthe harm to Ms. Doe, attributable to the supposedly tortious acts, as all ofthe bad acts or

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

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omissions occurred before MJJ Ventures had the capacity to act(or, more precisely,to fail to act)

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and after Ms. Doe was harmed.

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In the requisite meet and confer prior to this demurrer,this issue was raised with opposing

counsel as a reason why MJJ Ventures should be dismissed from this case. Counsel disagreed on

the following basis:"We have alter ego allegations and proof of a $150,000.00 payment to the

Plaintiff,from that entity,dated 1/13/92."(Steinsapir Decl.,¶ 2.)These contentions have no merit.

First,the fact that there are boilerplate "alter ego" allegations is irrelevant. The Complaint

~allegesthat MJJ Ventures was Michael Jackson's"alter ego."(FAC ¶ 5.)The alterego doctrine

"is a procedural device by which courts will disregard the corporate entity in order to hold the

alter ego individual liable on the obligations ofthe corporation." Leek v. Cooper, 194 Ca1.App.4th

399,419(2011)(emphasis added). Thus, Ms. Doe would still have to prove that there are some

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"obligations ofthe corporation," MJJ Ventures,for the doctrine to come into play. Ms. Doe cannot

14 thus could not have engaged in an y of those acts or omissions. It can therefore have no

15 "obligations" to Ms. Doe in tort based on such acts or omissions. Moreover,the alter ego

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16 allegations here—that MJJ Ventures was Michael Jackson's alterego—failfor another reason.

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M ichael Jackson deceased. Thus,the doctrine cannot"hold the alter ego individual liable"

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because he is deceased, no judgment can be entered against him, and the time to file claims based

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19 on hispersonalliabilityexpired a long time ago.Code Civ.Proc.§ 366.2;Prob.Code § 9100.

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20 Second,the fact that Ms. Doe has"proof of a $150,000.00 payment to the Plaintiff,from

21 [MJJ Ventures], dated 1/13/92" is neither here nor there. According to the Complaint, the payment

22 w as made "to compensate [Ms. Doe] for the sexual abuse she had suffered at the hands of Michael

23 Jackson."(FAC ¶ 49.)Thus,the Complaint itselfadmits thatthe payment was made for the

24 allegedly tortious conduct of Michael Jackson,not MJJ Ventures. Third parties make voluntary

25 payments on behalf of tortfeasors all the time. For example, it is not uncommon for wealthy

26 parents to "bail out" their children by compensating a person harmed by their young, or not-so-

27 young, adult children (e.g.,someone who was injured in an auto accident by an adult child,

28 someone who was injured in a physical altercation with an adult child, etc.). There is no doctrine

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

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~that makes the third party liable for the torts committed ifhe or she decides to make a payment in

2 compensation for it. And any such doctrine would be horrible public policy as it would discourage

3 ~compensation oftort victims.

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In short, MJJ Ventures has no business being in this case and this demurrer should be

5 sustained without leave to amend as to it.

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B.

The Negligent Hiring,Retention and Supervision Claims Fail.

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s. Doe's second through fourth causes of action against the Corporations are for

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8 negligence,negligent supervision,and negligent hiring/retention ofMichael Jackson by the

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Corporations.2 These torts failfortwo independent reasons.

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1. The Corporations Did Not Hire,Retain or Supervise Michael.

In California,an "employer may be liable to a third person for the employer's negligence

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~ Q~~ 13 D iego v. Superior Court,42 Cal.App.4th 1556, 1564 (1996)."To establish negligent supervision,

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14 a plaintiffmust show that a person in a supervisorialposition over the actor had prior knowledge

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15 of the actor's propensity to do the bad act." Z. V. v. County ofRiverside, 238 Ca1.App.4th 889, 902

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The negligent supervision,hiring and retention claims all fail as a matter oflaw because

a ~ 18 ~the Corporations did not have the power to supervise, hire or fire Michael Jackson,their owner,

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19 sole shareholder,and president. Ms. Doe alleges that the"board ofdirectors and officers of[the

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Corporations]conferred substantial actual and ostensible authority unto authority unto Michael

Jackson,"(FAC ¶ 70),and thatthe Corporations somehow supervised Michael.(Id. ¶¶ 70-71). Of

course,there is no allegation about who this "board" supposedly consisted of. That was no

accident—as Ms. Doe's counsel knows from discovery in the related Robson and Safechuck cases,

during allrelevant times here,Michael Jackson was the sole director ofthe Corporations,i.e.,he

2 The general negligence claim is really just a repeat of the negligent supervision and

related claims. Ms. Doe has also alleged negligence based on a"mandated reporter"theory and "in

loco parentis" duty which are discussed separately below at Section III.D.

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DEFENDANTS'DEMiJRRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

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was the sole member ofthe Board.See Corp. Code § 212(a)("so long as the corporation has only

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one shareholder,the number [of directors] may be one"). Regardless,for at least two reasons,

these allegations are insufficient for a negligent hiring,retention or supervision claim.

First,as a matter oflaw,the "board of directors and officers of a corporation cannot

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"confer authority" on the sole shareholder. It is precisely the other way around. As sole

~ shareholder, Michael Jackson had the sole legal right to control corporate activities, including the

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authority to hire or remove officers and directors, at will. A California corporation is controlled by

its Board. Corp. Code § 300(a). In turn,the Board is controlled by the shareholders. When there is

only one shareholder,that shareholder controls the Board entirely. The Board is elected "by

unanimous written consent ofall shares."Corp. Code § 603(d). Any member ofthe Board may be

removed by the sole shareholder."Any or all ofthe directors may be removed without cause ifthe

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removal is approved by the outstanding shares." Id. § 303(a). A corporation's officers are also

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controlled by the sole shareholder,through his control ofthe Board. A corporation's"officers

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sole shareholder ofthe Corporations. He could not"negligently" hire,retain,or supervise himself.

~ ~~C° 16 See, e.g., Coit Drapery Cleaners v. Sequoia Ins. Co., 14 Ca1.App.4th 1595, 1601-02(1993)("the

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trial court properly found that there was no way Coit,the corporate entity,could have disciplined

 

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or supervised its president,chairman ofthe board,and major shareholder.").

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Second, setting aside the insurmountable legal bar to Ms. Doe's argument under the

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20 ~Corporations Code,the general,conclusory allegations thatsome "board ofdirectors and officers"

21 of the Corporations hired, supervised or could have fired Michael are contrary to more specific

22 allegations of this Complaint(and the prior complaints). Careau & Co. v. Sec. Pac. Bus. Credit,

23 Inc.,222 Ca1.App.3d 1371,1390(1990)(on demurrer,specific allegations control over

24 inconsistent general allegations).Ms.Doe readily admits that both Corporations were "established

25 by Michael Jackson

as his primary business entity" and "in part for the purpose of placing

26 children

in contact with" him, respectively.(Id. ¶¶ 3-4.)These more specific allegations defeat

27 the general conclusory allegations that some board of directors and officers"conferred authority"

28 on Michael Jackson and thus hired him (or could have fired or better supervised him). Ms. Doe

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

1

~ expressly alleges that Michael was "the president owner" of both entities,(ibid.), and he alleges

 

2

~that both entities were Michael's"alter egos for the childhood sexual abuse alleged herein,"and

3

~were Michael's "alternative personalit[ies]."(Id. ¶¶ 5,9.)Accordingly,these Corporations had no

4

~existence or purpose other than to conduct Michael Jackson's business. The allegations regarding

5

~ Ms. Staikos and Ms. Levine do not suggest that Ms. Staikos, Ms. Levine,or anyone else working

6

~for the Corporations hired Michael Jackson,supervised him, or had the ability tofire him.

7

R elatedly,there are nofactual allegations at all—ultimate facts or not—to support the

8

~statements that some "board of directors and officers" ofthe Corporations hired,supervised or

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could have fired Michael. Popescu v. Apple Inc., 1 Ca1.App.Sth 39, 50 (2016)(trial court should

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disregard conclusions in pleadings at demurrer). There are likewise no allegations regarding what

 

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"the Board"supposedly knew about Michael's(falsely alleged)"propensity" with children.The

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allegation that the board conferred authority on Michael is nonsensical, contrary to California law,

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and contradicts Ms. Doe's allegations throughoutthe Complaint.

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M s. Doe's few conclusory allegations about others at the Corporations are insufficient to

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overcome her allegations ofMichael's clear control over the Corporations. Furthermore,Ms. Doe

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negligently hiring Michael,(2) who had the authority to fire or otherwise discipline Michael, and

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(3)who actually possessed any supervisory control over Michael. The "duty analysis

requires

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the court in each case(whether trial or appellate)to identify the specific action or actions the

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plaintiff claims the defendant had a duty to undertake." Castaneda v. Olsher, 41 Cal.4th 1205,

21

1214(2007). Ms. Doe has not done this,and cannot do this. The reason for the absence ofsuch

22

allegations is obvious, and Ms. Doe cannot cure this deficiency by further amendment.

23

2.

Ms. Doe's "Contacts" With Michael Jackson Are Not Attributable to

24

the Corporations,or Their Relationship With Michael,in Any Way.

25

"Liability for negligent supervision and/or retention of an employee is one of direct

26

~ liability for negligence, not vicarious liability." Delfino v. Agilent Techs., Inc., 145 Ca1.App.4th

27

790, 815 (2006). The torts have "developed in California in factual settings where the plaintiff's

28

injury occurred in the workplace, or the contact between the plaintiffand the employee was

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

1

~ generated by the employment relationship." Mendoza v. City ofLos Angeles,66 Ca1.App.4th 1333,

2

~ 1339-40(1998)."Failing to require a connection between the employment and the injured party

3 ~ would result in the employer becoming an insurer ofthe safety of every person with whom its

4 ~employees come into contact,regardless oftheir relationship to the employer." Id. at 1341.

5 The claims for negligent supervision,hiring and retention claims all fail,because the

6 alleged"contact" between Ms.Doe and Michael Jackson was not"generated by the employment

7 relationship" between Michael and the Corporations. Id. at 1339-40. Rather, as set out in First

8 Amended Complaint,Michael's and Ms.Doe's contacts firstbegan when Ms.Doe and herfamily

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9 decided to visit the Jacksons' Hayvenhurst home. That had nothing to do with any business ofthe

10 Corporations.The Complaint contains no explanation about how Ms. Doe's alleged abuse had

11

anything to do with the Corporations. Ms. Doe never worked for the Corporations and never had

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12 any other relationship with the Corporations. That Michael allegedly used his Corporations to

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19 ~nonexistent.There are no allegations regarding how the Corporations played into Ms. Doe's

20 alleged abuse.Doe's interactions with the Corporations(or Michael's interactions with the

21 Corporations)did not create the opportunity for Michael to allegedly molest Ms. Doe. Rather,the

22 fact that he was aworld-famous musician, and had been for many years, is what led Ms. Doe and

23 her family to allegedly show up at the Jacksons' family home on Hayvenhurst in 1986. The

24 C orporations had nothing to do with that. And there is no indication whatsoever that, ifthe

25 C orporations were not in the picture at all, Michael would not still have allegedly molested Ms.

26 D oe. Mendoza,66 Cal.App.4th at 1342(reversing jury verdict on negligent supervision, hiring and

27 retention claims againstLAPD where police officer shot and killed hisfiancee;"Neither rejecting

28 M endoza nor firing him would have eliminated his access to a

The act was unrelated to his

17

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

1

official duties. Like any private citizen, Mendoza was entitled to keep firearms in his home.")

2 "An employer is not charged with guaranteeing the safety of anyone his employee might

3 incidentally meet while on thejob against injuries inflictedindependentoftheperformance of

4 w ork-relatedfunctions." Federico v. Superior Court, 59 Ca1.App.4th 1207, 1215(1997)(emphasis

5 added). Indeed,even ifone engaged in the rather absurd fiction that the Corporations could have

6 ~declined to hire Michael—their sole shareholder for whom their businesses depended—or could

7 have fired or "supervised" him,this would have done nothing to change Michael's access to Ms.

8 Doe.The Complaint specifically allegesthatthe relationship between Michael and Ms.Doe began

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9 and grew as a result of Michael's personal fame.(FAC ¶ 10.)The Corporations were irrelevant to

10 how the relationship began and grew.The relationship between Michael and Ms.Doe was nota

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result of a connection between Michael and his corporations, as opposed to pastors',teachers' or

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13 pastors,teachers,or scout masters and the church,school or troop.In such cases,"the contact

scout masters' relationships to children, which are a direct result ofthe relationship between the

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the pastors, etc.,and the Church, etc. Mendoza,66 Ca1.App.4th at 1339-40.

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A ccordingly,even ifPlaintiffcould get by the fact that the Corporations, by definition,

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never hired, supervised, or retained Michael Jackson at all,the alleged connection between the

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C.

All Negligence Causes of Action Fail Because Ms.Doe Cannot Allege That the

20

Corporations Had A Duty To Protect Her.

21

W hether a duty of care exists "is properly challenged by demurrer and is a question of law

22

for the court." Hegyes v. Unjian Enterprises, Inc., 234 Ca1.App.3d 1103, 1111 (1991)."As a

23

general rule,one owes no duty to control the conduct of another, nor to warn those endangered by

24

such conduct." Conti v. Watchtower Bible &Trade Society ofNew York, Inc., 235 Ca1,App.4th

25

~~ 1214, 1226 (2015)."The rule is foundational in California tortjurisprudence. The tort law of

26

~~California does notimpose mandatory Good Samaritanism."Ibid.

27

A ll of Ms. Doe's negligence claims rest on the exception to the rule of no duty of a third

28

~~ party to protect against, or prevent, a crime, i.e., when there is a "special relationship" between the

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

1

third party and the victim."Absent a `special relationship,' one cannot be held liable for the mere

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nonfeasance, such as not protecting another from a criminal attack by a third party." Eric J. v.

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etty M., 76 Cal.App.4th 715,727(1999)."[W]here the issue is whether the defendant had a duty

4

to protect the plaintifffrom harm caused by a third party,the absence of a special relationship is

5

dispositive"and requires no further analysis. Conti,235 Ca1.App.4th 1228-29.

6

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s. Doe's negligence claims fail as a matter of law because there is no special relationship

7

alleged in the Complaint between the Corporations and Ms. Doe that could possibly give rise to

8

such a legal duty. Ms. Doe has not,and cannot,explain why the Corporations—who never had

9

any relationship with her at all—are somehow liable for her alleged molestation by their owner.

10

M Doe is essentially alleging that all corporations have a roving duty to police the alleged

s.

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criminal conduct oftheir employees; and to protect anyone and everyone from such alleged

12

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isconduct, regardless of the connection to the corporations. This is particularly implausible

13

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hen the alleged wrongdoer is "the president owner" of the company. See Coit Drapery, 14

14

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a1.App.4th at 1605. Nothing in California law would support such an invasive conception of

15

corporations' duties to the general public.

 

16

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special relationship giving rise to a duty to protect a child from criminal conduct is

17

generally reserved for schools,day care centers,or other youth organization such as the Boy

18

Scouts who act in loco parentis while a child is in attendance. See Juarez v. Boy Scouts of

19

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merica, Inc.,81 Ca1.App.4th 377,410-411 (2000). By contrast,the Court of Appeal has held that

20

"there is no special relationship[] creating heightened duty of care [to protect a child from

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21

sexual abuse]based on a priest/parishioner relationship."Roman Catholic Bishop,42 Ca1.App.4th

22

at 1568. Similarly, church also has no special relationship with its minor congregants to warn

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23

them regarding potential dangers posed by other church members. Conti,235 Cal.App.4th at

24

1227-28. Further,the Court ofAppeal has held thatfamily members ofa convicted,serial

25

pedophile had no special relationship with the pedophile's girlfriend or her eight-year old son,to

26

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arn them of possible harm when hosting the girlfriend and her son at their house. See Eric J., 76

27

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a1.App.4th at 727-30. This was despite thefact that the pedophile's parole officer had warned the

28

family thatthe pedophile should not be in contact with children. Id. at 719.

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

1

Here,the Complaint acknowledges thatthe Corporations were Michael's personal business

entities.Although Ms.Doe claims thatthe Corporations"groomed"children for the entertainment

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industry,and that Ms. Staikos and Ms. Levine had some supervisory responsibility for children,

these sham allegations do not come close to alleging that the Corporations were engaged in the

type of school, day care center, or other youth program that could give rise to a special in loco

parentis relationship requiring the Corporations to train, warn or educate Ms. Doe regarding the

risk of sexual abuse by their owner, Michael Jackson.3 There is no allegation in the Complaint

that any ofthe alleged sexual abuse took place at the Corporations' offices, during a "youth

program" organized by the Corporations,or while Ms. Doe was entrusted to the Corporations'

care (as opposed to Michael'spersonal care).

M s. Doe's reliance in the Complaint on Pamela L. v. Farmer, 112 Cal.App.3d 206(1980)

(see TAC ¶ 113)is entirely misplaced because the alleged abuse in that case took place in the

respondent's home (id.at 209-210), whereas the alleged abuse here took place in Michael's

residences as opposed to at the Corporations'offices. Allegations that Michael used the

Corporations to make travel arrangements, etc.,do not support the allegation that Ms. Doe was

under the Corporations' supervision or custody.

D. The Second Cause of Action Fails Because Ms.Doe Has Not And Cannot

Adequately Plead Allegations Supporting A Negligence"Per Se" Claim

M s. Doe's claim that the Corporations were mandated reporters and failed to report

M ichael to the authorities under the Child Abuse and Neglect Reporting Act,Penal Code §§

11166, et seq.,fails.(TAC,¶¶ 131-140.)The "mandatory reporter" allegations are meritless,

because Ms. Doe has not alleged facts:(1)that would support a finding that the Corporations or

3 Ms. Doe's allegations that Defendants provided food or cleaning services(at Michael's

home)or arranged travel are insufficient to create an in loco parentis relationship. At best,there

are allegations that mightpotentially support an allegation that Michael took Ms. Doe from his

parents' care. For Ms. Doe to show that the Corporations are liable for Michael supposedly taking

her away from his parents, Ms. Doe would have to allege facts to support a finding that Michael's

acts in that regard were "causally attributable to his employment" by the Corporations. Lisa M. v.

Henry Mayo Newhall Mem'l Hosp.,12 Cal.4th 291,301(1995).No such facts are alleged.

20

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

any specific employees ofthe Corporations were "mandated reporters" or "child care custodians"

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under the statute as operative at the relevant time; and(2)that any employee ofthe Corporations

3

otherthan Michael directly supervised him.

4

The Penal Code does not create some general duty on the part of all entities or persons to

5

report suspected child abuse by anyone connected to such persons or entities. As noted above,the

6

law is squarely to the contrary. Eric J.,76 Ca1.App.4th at 727-30. Rather,Penal Code section

7

11165.7 specifically defines a "Mandated Reporter" to include certain employees of various types

8

of public and private organizations such as teachers at public and private schools who regularly

9

provide services to children. The Corporations' employees do not fall within any ofthe categories

10

of individuals required to report under the statute.In any event,the Complaint does not identify

11

which class ofemployees were supposedly mandatory reporters and why under the version ofthe

~3 ~ ~ ~; 12 Penal Code in effect at the time (between 1986 and 1989), or provide a factual basis to support

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under any particularly category of"child care custodian" or"mandated reporter" under the

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relevant version ofthe statute.

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E.

The First Cause of Action Fails Because Ms.Doe Has Not Adequately Pled

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Facts Supporting a Claim for Intentional Infliction ofEmotional Distress

21

M s. Doe's claim for intentional infliction of emotional distress fails. Ms. Doe claims that a

22

reasonable person would not expect "putting Michael Jackson in positions of authority at[MJJ

23

Productions,and MJJ Ventures]."(FAC ¶ 71.)Although the Complaintloosely allegesthatthe

24

"board"conferred authority on Michael,the allegation cannot be squared with California law

25

w hich makes clear that the sole shareholder controls the board,as well as Plaintiff's allegations

26

that both Corporations were "established by MichaelJackson."(Id. ¶¶ 3-4.)To the extent the

27

Court assumes Michael was ever acting as an agent ofthe Corporation here, he put himselfin the.

28

position of authority. Other than this, no true "outrageous conduct" is alleged other than the

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

1

~ alleged molestation itself.(FAC ¶¶ 71-72.) However, the Complaint is very clear that Michael

2 ~Jackson was not acting on behalfofthe Corporations when he supposedly molested Ms. Doe.

3 ~Rather,the Complaint repeatedly alleges that he was acting "for his own sexual gratification."

4 ~(FAC ¶ 13; see also id. ¶¶ 39, 92, 108.) This is entirely consistent with respondeat superior cases

5 ~in the context of child sexual abuse. As our Supreme Court has noted, when holding that schools

6 I~are not liable in respondeat superior for sexual assaults by their employees,"[a] more personal

7 escapade less related to an employer's interests is difficult to imagine." John R. v. Oakland Unified

8 SchoolDistrict,48 Ca1.3d 438,447(1989). Acts allegedly taken for Michael's"sexual

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9 gratification" are not"causally attributable to his employment" by the Corporations,and thus the

10 C orporations cannot be liable for those acts. Lisa M., 12 Ca1.4th at 301; Delfino, 145 Cal.App.4th

11

at813-14(corporation not vicarious liable for intentional infliction ofemotional distress caused by

12 employee's use of his work computer to send cyberthreats because he "substantially deviated]

13

from the employment dutiesfor personal purposes.").

14

F.

The Sixth Cause of Action Fails Because Ms. Doe Cannot Allege that the

15

Corporations Were His Fiduciaries

16

The cause ofaction for breach offiduciary duty fails because Ms. Doe has not alleged

17

~sufficient facts to establish that she and the Corporations were in a fiduciary relationship,or how

 

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the Corporations breached any such duties. The boilerplate conclusion that there was an in loco

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19 parentis duty are not supported by the actual allegations for reasons explained above. But even if

20 ~there is an in loco parentis duty, that means there is a special relationship for anegligence-based

21 duty of care; it does not rise to the level offiduciaYy duty. "Before a person can be charged with a

22 fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of

23 another,or must enter into a relationship which imposes that undertaking as a matter oflaw." City

24 of Hope Nat. Med. Ctr. v. Genentech, Inc., 43 Cal.4th 375, 386(2008)(brackets and internal

25 quotation marks omitted). Here,there are simply no allegations whatsoever to support a finding

26 that the Corporations "knowingly undertook] to act on behalfand for the benefit of[Ms. Doe],

27 or" that the Corporations "enter[ed] in a relationship which imposes that undertaking as a matter

28 oflaw."Ibid.

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

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DATED: March 31,2017

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Respectfully Submitted:

KINSELLA WEITZMAN ISER KUMP

& ALDISERT LLP

B y:

Jonathan Steinsapir

A ttorneys for Defendants MJJ Productions, Inc.

(sued as"Doe 1")and MJJ Ventures,Inc.(sued as

"Doe 2")

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"

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DECLARATION OF JONATHAN P.STEINSAPIR

 

I, Jonathan P. Steinsapir,declare as follows:

3

1.

I am admitted to the State Bar of California and I am a partner at Kinsella

4

~Weitzman Iser Kump & Aldisert,LLP,counsel ofrecord for Defendants MJJ Productions,Inc.,

5

and MJJ Venhues,Inc.I have personal knowledge ofthe facts setforth herein, which are known

6

by me to be true and correct, and ifcalled as witness,I could and would competently testify

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7

(thereto.

8

2.

On March 8,2017,I sent an email to counsel ofrecord for Plaintiff,explaining that

9

'~,~Defendants planned to file this demurrer. I explained that the general legal basis for this demurrer

10

w as the same as for the demurrers in the Safechuck matter,and I noted that further meet and

11

confer did not appear to be necessary except as to one issue. In particular,I pointed out that

12

D efendant"Doe 2"(who is MJJ Ventures) did not exist during the time period of the alleged

13

tortious conduct in this case and that it should be dismissed from the case. Plaintiff's counsel

14

advised that he disagreed that MJJ Ventures should be dismissed for the following reasons:"We

15

have alter ego allegations and proofof a $150,000.00 payment to the Plaintiff,from that entity,

16 dated 1/13/92."Counsel for Plaintiffagreed that no further meet and confer was necessary.

17 I declare under penalty ofperjury under the laws ofthe State ofCalifornia thatthe

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~~foregoing is true and correct.

19

Executed March 31,2017,in Santa Monica, California.

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22

Jonathan P. Steinsapir

~~

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10386.00300/381132.1

25

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DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"