1 TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD

:

2 PLEASE TAKE NOTICE that on May 31, 2017, at 8:30 a.m., or as soon thereafter as the
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3 j ~ matter may be heard in Department M of the Los Angeles Superior Court, located at 1725 Main

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

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

6 ~ Amended Complaint of plaintiff"Jane AA Doe."(Plaintiff filed her action under a pseudonymous
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7 name. Defendant reserve the right to challenge the propriety of doing so.)

8 The demurrer will be made pursuant to Code of Civil Procedure section 430.10 on the
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a 9 grounds that the First Amended Complaint is insufficiently pleaded because, among other things,
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~ 10 it is uncertain and fails to state facts sufficient to constitute timely causes of action against either
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11 or both defendants MJJ Productions, Inc., and MJJ Ventures, Inc.

~3 ~ ~ ~; 12 This demurrer follows a meet and confer pursuant to Code of Civil Procedure § 430.41.
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~ ~~m 13 Declaration of Jonathan P. Steinsapir (attached) at ¶ 2.
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14 This demurrer is based upon this Notice, the attached Demurrer, the attached
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17 this case and in the related cases (including the probate proceedings, Case No. BP 117321), and on

a ~ 18 such other and further written and oral argument as may be presented in connection with any
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20 DATED: March 31, 2017 Respectfully Submitted:
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21 KINSELLA WEITZMAN ISER KUMP
& ALDISERT LLP
22

23
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24
Jonathan Sfeinsapir ~
25 Attorneys for Defendants MJJ Productions, Inc.
(sued as "Doe 1") and MJJ Ventures, Inc.(sued as
26
"Doe 2")
27

28

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

2 Defendants MJJ Productions, Inc., and MJJ Ventures, Inc.(collectively,"the
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3 Corporations" or "Defendants"), herby demur to Plaintiffls First Amended Complaint on the

4 following grounds:

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

6 Judicial Notice, Ex. A.) All of the allegedly tortious conduct here occurred prior that time. Thus,
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7 MJJ Ventures could not have possibly engaged in any of the tortious conduct and could not

8 possibly be the legal cause (or "proximate cause") of any ofthe harm supposedly suffered by
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a 9 Plaintiff as a result of that conduct. Accordingly, the First Amended Complaint fails to state facts
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~ ~o~ 12 The remaining bases below are applicable to both Defendants:
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14 timely cause of action for "Intentional Infliction of Emotional Distress"(the First Cause of
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N ~~~ 16 2. The First Amended Complaint fails to state sufficient facts to support a valid and
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17 timely cause of action for "Negligence"(the Second Cause of Action). No amendment can cure
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a 18 these defects.
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x 20 timely cause of action for "Negligent Supervision"(the Third Cause of Action). No amendment
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21 can cure these defects.

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

23 timely cause of action for "Negligent Retention/Hiring"(the Fourth Cause of Action). No
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24 amendment can cure these defects.

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

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

27 Action). No amendment can cure these defects.

28 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"
1 timely cause of action for "Breach of Fiduciary Duty"(the Sixth Cause of Action). No amendment

2 can cure these defects.
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3 WHEREFORE,the Corporations pray that this demurrer be sustained without leave to

4 amend, and that the Court grant such other and further relief as the Court deems just and proper.

5 DATED: March 31, 2017 Respectfully Submitted:

6 KINSELLA WEITZMAN ISER KUMP
ily
& ALDISERT LLP
7

8
.a By:
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Jonathan Steinsapir
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•• o (sued as "Doe 1")and MJJ Ventures, Inc.(sued as
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26

27

28

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

2 In this case, a pseudonynmous plaintiff, Jane AA Doe("Ms. Doe"), claims she was
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3 molested by the late Michael Jackson over thirty years ago, between 1986 and 1989, when she was

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

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

6 absolute and complete bar to this lawsuit for money damages—Ms.Doe has sued two
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7 corporations, MJJ Productions, Inc.(sued as "Doe 1") and MJJ Ventures, Inc.(sued as "Doe 2")

8 (collectively "the Corporations"), claiming that they are legally responsible for her molestation.
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a 9 Ms. Doe admits that both corporations were "established by" Michael Jackson to conduct
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~ 10 Michael's own business. One of these corporations, MJJ Ventures, did not even exist at the time of
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a3 ~~~ 12 is no legal basis for holding the other corporation, MJJ Productions, liable here either. Ms. Doe
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~ ~~, 14 out of—or even relate to—MJJ Productions' business, or its relationship to its "president/owner"
~ mQo
z Q Z 00 15 Michael Jackson. Her alleged molestation would have occurred with or without MJJ Productions.
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17 allegations. She has no coherent explanation for why she did not come forward long ago. This
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,~~ ~ i8 case should have never been filed, and this demurrer should be sustained without leave to amend.

z 19 II. FACTUAL BACKGROUND

20 Sadly, Michael Jackson will never have an opportunity to answer Ms. Doe's accusations.
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21 The Estate and the Corporations, however, unequivocally deny them and note that the operative

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

23 demurrer, and the Corporations recognize that the Court must treat the properly pleadedfacts of
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24 the First Amended Complaint("FAC" or just "Complaint") as undisputed for present purposes.

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

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

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

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

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"
1 ~ both entities were his "alter egos for the childhood sexual abuse alleged herein"(id. ¶¶ 5); and that

2 ~ they were Michael Jackson's "alternative personalit[ies]."(Id. ¶ 9.)
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3 Although not alleged, the Court can and should take judicial notice (as it has before)that

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

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

6 possibly have put Plaintiff"in contact with Michael" as falsely alleged by Ms. Doe.(FAC ¶ 4.)
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7 Ms. Doe was born in February 1974.(FAC ¶ 1.) In 1986, when she was 12 years old, she

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

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~ 9 Jacksons' family home on Hayvenhurt Avenue in Encino.(Id. ¶ 10.) As Ms. Doe and her family
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A o ~~ 11 then "signaled to his security guard to allow [Ms. Doe] and her mother access to the property,

~3 ~~~ 12 beyond the gates."(Ibid.) Ms. Doe and her mother were then escorted in by the security guard, and
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~ mQo
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~ 16 Michael then "spoke with the security guard through his walkie talkie and asked him to
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17 ~ obtain" Ms. Doe's family's phone number.(Id. ¶ 11.) Soon, Michael allegedly started speaking

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I~ ~ 10 with her weekly and even daily.(Ibid.) Michael supposedly began sexually abusing her shortly
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~~20 Before, during and after the period of sexual abuse, Michael bought Plaintiff gifts.and sent
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21 ~ her notes.(Id. ¶ 14.) The Corporations allegedly "orchestrated, facilitated and enabled the sexual

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

23 and taking her to Michael to spend time together; sending letters or notes to her; setting up
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24 meetings with her; "isolating" her with Michael "for extended periods oftime"; and "booking and

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

26 The alleged abuse occurred at numerous locations where Michael lived or worked and

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

28 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 alleges that the Corporations owed her a

2 ~ myriad of vague (and, in many cases, inapt) duties including: "adequate supervision" and adequate
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3 ~ "train[ing ofJ teachers, mentors, coaches, and advisors"; and adequate supervision of"youth

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

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

6 alleges that the Corporations were "employers controlling Michael Jackson."(Ibid.) She alleges
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7 that the Corporations: had knowledge of prior abuse (consisting of what is not specified) and

8 failed to report it; allowed Michael "to remain in a position of authority" despite such knowledge;
.
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9 placed Michael "in charge of young boys"(but not "young girls" like Ms. Doe apparently);
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~ orn~ 12 Corporations "had the authority and ability to stop" Michael's alleged abuse, but "negligently
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~~ Q~ 16 industry;(2) minors were present in the Corporations' custody;(3)the Corporations paid for
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17 minors' travel, lodging and accommodations;(4) minors were "regularly trained and mentored by"
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a ~ ig Michael; and (5) by hiring minors and providing them with basic care ,the Corporations owed
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z 19 them a "special duty."(Id. ¶ 68.) These alleged bases for a duty mal4es little to no sense, as there

w 20 are no allegations that Ms. Doe was involved, trained or mentored in the entertainment industry.
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21 Ms. Doe also alleges that the Corporations were created in part to "provide for the welfare

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

23 directors and officers" of the Corporations "conferred substantial actual and ostensible authority
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24 unto Michael Jackson." They "permitted" Michael: to sleep in bed with minors(in his own home);

25

26
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
27
facilitation organization."(FAC ¶ 5.)
28

10
DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"
1 ~ to "train and coach" minors; to travel with minors; and to "have authority" over minors.(Ibid.)

2 Ms. Doe alleges that the Corporations employed individuals who "were ceded authority by
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3 ~ [the Corporations] to supervise Michael Jackson and the minors in his charge."(Id. ¶ 71.) Ms. Doe

4 ~ further alleges that:(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

6 ~ Ms. Staikos' and Ms. Levine's primary responsibility" and they were required to protect minors
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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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~3 ~~~ 12 home). Allegedly, Ms. Levine and Ms. Staikos assured parents of minors that their children would
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~ ~~`; 14 "knew or had reason to know" that Michael Jackson had a propensity to abuse children and had
~ mQo
Z ~ z °° 15 the authority to implement some sort of"reasonable safeguards," but failed to do so. (Id. ¶ 72.)
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E~ Q~ 16 Notably, Ms. Doe does not allege that she ever met Ms. Levine or Ms. Staikos, ever spoke
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a ~ ig abuse against Michael before or during her alleged abuse, who was abused, or how and why Ms.
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x 20 Ms. Doe alleges that "[b]efore, during and after the sexual abuse," she was under extreme
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21 ~ duress, including being told she would be physically harmed if she told anybody.(Id. ¶ 45.) The

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

23 action (over three years before this one), and was not physically harmed.(Ibid.) Remarkably, in
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24 September 2016, Ms. Doe alleges that she reflected on the abuse and "for the first time in her life,

25 reasonably discovered that her psychological injuries ...were caused by the sexual abuse."(Id.

26 ¶ 46.) Ms. Doe alleges that she received numerous payments from Jackson and the Corporations

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

28 made "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"
1 ~ (Id. ¶¶ 47-52.) Thus, Ms. Doe alleges that all statutes of limitations have been tolled since the

2 ~ payments were made pursuant to Insurance Code section 11583.(Id. ¶ 55.)
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3 Although the Corporations do not believe that this tolling statute applies here for various

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

5 Corporations, and not their timeliness.

6 III. ARGUMENT
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7 The legal standards here are familiaz. A demurrer shall be sustained if the pleading "does

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

a 9 ~ assume the truth of all "properly pleaded" facts, but it may "not assume the truth of contentions,
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~ 10 ~ deductions, or conclusions of fact or law." Leyva v. Nielson, 83 Ca1.App.4th 1061, 1063 (2000).
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~3~~~ 12 ~ noticeable. Code Civ. Proc. § 430.30(a); Donabedian v. Mercury Ins. Co., 116 Ca1.App.4th 968,
ich
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Q o c~ 13 994(2004); Blank v. Kievan, 39 Ca1.3d 311, 318 (1985).
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q ~U• 14 A. The Complaint Fails to State any Causes of Action Against MJJ Ventures
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z Q z 00 15 Because It Did Not Exist At the Time of the Allegedly Tortious Conduct.
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E~ Q;~ 16 The Court can and should take judicial notice that MJJ Ventures was incorporated by the
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17 ~ State of California on February 26, 1991. See Request for Judicial Notice, Ex. A (certificate of
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a ~ 18 incorporation and articles ofincorporation for MJJ Ventures as filed with the California Secretary
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z 19 of State); Evid. Code § 452(c); Friends ofShingle Springs Interchange, Inc. v. County ofEZ

'~ 20 ~ Dorado,200 Ca1.App.4th 1470, 1484(2011)(taking judicial notice on demurrer of articles of
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21 incorporation; they are "properly the subject ofjudicial notice as documents reflecting official acts

22 ofthe executive department of the State of California")

23 The Complaint clearly alleges that all of the allegedly tortious acts and omissions—i.e., the
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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 Another 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"
1 omissions occurred before MJJ Ventures had the capacity to act(or, more precisely, to fail to act)

2 and after Ms. Doe was harmed.
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3 In the requisite meet and confer prior to this demurrer, this issue was raised with opposing

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

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

6 Plaintiff, from that entity, dated 1/13/92."(Steinsapir Decl., ¶ 2.) These contentions have no merit.
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7 First, the fact that there are boilerplate "alter ego" allegations is irrelevant. The Complaint

8 ~ alleges that MJJ Ventures was Michael Jackson's "alter ego."(FAC ¶ 5.) The alter ego doctrine
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~ ~o~ 12 "obligations ofthe corporation," MJJ Ventures, for the doctrine to come into play. Ms. Doe cannot
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~ Qo~ 13 do that as MJJ Ventures did not exist at the time ofthe alleged tortious acts and omissions, and
~ ;~~
a ~ ~~ 14 thus could not have engaged in any ofthose acts or omissions. It can therefore have no
~ mQo
z ~ Z °D 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 alter ego—fail for another reason.
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17 Michael Jackson is deceased. Thus, the doctrine cannot "hold the alter ego individual liable"
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a ~ ig because he is deceased, no judgment can be entered against him, and the time to file claims based
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x 20 Second, the fact that Ms. Doe has "proof of a $150,000.00 payment to the Plaintiff, from
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21 [MJJ Ventures], dated 1/13/92" is neither here nor there. According to the Complaint, the payment

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

23 Jackson."(FAC ¶ 49.) Thus, the Complaint itself admits that the payment was made for the
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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"
1 ~ that makes the third party liable for the torts committed if he 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
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3 ~ compensation of tort victims.

4 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.

B. The Negligent Hiring, Retention and Supervision Claims Fail.
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7 Ms. Doe's second through fourth causes of action against the Corporations are for

8 negligence, negligent supervision, and negligent hiring/retention of Michael Jackson by the
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a 9 Corporations. 2 These torts fail for two independent reasons.
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10 1. The Corporations Did Not Hire, Retain or Supervise Michael.
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a o~~ 11 In California, an "employer may be liable to a third person for the employer's negligence
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~ Q~~ 13 Diego v. Superior Court,42 Cal.App.4th 1556, 1564(1996)."To establish negligent supervision,
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14 a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge
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Z ~ z 00 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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~ o~~ 17 The negligent supervision, hiring and retention claims all fail as a matter oflaw because
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a ~ 18 ~ the Corporations did not have the power to supervise, hire or fire Michael Jackson, their owner,
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z 19 sole shareholder, and president. Ms. Doe alleges that the "board of directors and officers of[the

x 20 Corporations] conferred substantial actual and ostensible authority unto authority unto Michael
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21 Jackson,"(FAC ¶ 70), and that the Corporations somehow supervised Michael.(Id. ¶¶ 70-71). Of

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

23 accident—as Ms. Doe's counsel knows from discovery in the related Robson and Safechuck cases,
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24 during all relevant times here, Michael Jackson was the sole director of the Corporations, i.e., he

25

26
2 The general negligence claim is really just a repeat ofthe negligent supervision and
related claims. Ms. Doe has also alleged negligence based on a "mandated reporter" theory and "in
27
loco parentis" duty which are discussed separately below at Section III.D.
28

14
DEFENDANTS'DEMiJRRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"
1 was the sole member of the Board. See Corp. Code § 212(a)("so long as the corporation has only

2 one shareholder, the number [of directors] may be one"). Regardless, for at least two reasons,
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3 these allegations are insufficient for a negligent hiring, retention or supervision claim.

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

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

6 ~ shareholder, Michael Jackson had the sole legal right to control corporate activities, including the
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7 authority to hire or remove officers and directors, at will. A California corporation is controlled by

8 its Board. Corp. Code § 300(a). In turn, the Board is controlled by the shareholders. When there is
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a 9 only one shareholder, that shareholder controls the Board entirely. The Board is elected "by
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~ 10 unanimous written consent of all shares." Corp. Code § 603(d). Any member ofthe Board may be
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~3~~~ 12 removal is approved by the outstanding shares." Id. § 303(a). A corporation's officers are also
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q ~U• 14 shall be chosen by the board and serve at the pleasure ofthe board." Id. § 312(b). Michael was the
I-~-1 m Q p
z ~ z o0 15 sole shareholder of the Corporations. He could not "negligently" hire, retain, or supervise himself.
~ =o~
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a 16 See, e.g., Coit Drapery Cleaners v. Sequoia Ins. Co., 14 Ca1.App.4th 1595, 1601-02(1993)("the
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17 trial court properly found that there was no way Coit, the corporate entity, could have disciplined
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~] ~ ig or supervised its president, chairman of the board, and major shareholder.").
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7 19 Second, setting aside the insurmountable legal bar to Ms. Doe's argument under the
.
.
x 20 ~ Corporations Code,the general, conclusory allegations that some "board of directors and officers"
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21 ofthe Corporations hired, supervised or could have fired Michael are contrary to more specific

22 allegations ofthis 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
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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
da
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.
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7 Relatedly, there are nofactual allegations at all—ultimate facts or not—to support the

8 ~ statements that some "board of directors and officers" of the Corporations hired, supervised or
.~
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~ 9 could have fired Michael. Popescu v. Apple Inc., 1 Ca1.App.Sth 39, 50(2016)(trial court should
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~ 10 disregard conclusions in pleadings at demurrer). There are likewise no allegations regarding what
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~ ~~~ 12 allegation that the board conferred authority on Michael is nonsensical, contrary to California law,
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a i*~go
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z ~ z 00 15 overcome her allegations of Michael's clear control over the Corporations. Furthermore, Ms. Doe
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~ ~~~° 16 has utterly failed to allege(1) what Michael's Corporations should have done in order to avoid
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~] ~ Ig (3) who actually possessed any supervisory control over Michael. The "duty analysis ... requires
a
z 19 the court in each case (whether trial or appellate) to identify the specific action or actions the

x 20 plaintiff claims the defendant had a duty to undertake." Castaneda v. Olsher, 41 Cal.4th 1205,
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21 1214(2007). Ms. Doe has not done this, and cannot do this. The reason for the absence of such

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
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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 plaintiff and 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
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3 ~ would result in the employer becoming an insurer of the 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
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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 first began when Ms. Doe and her family
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a 9 decided to visit the Jacksons' Hayvenhurst home. That had nothing to do with any business ofthe
a
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~ ~~~ 12 any other relationship with the Corporations. That Michael allegedly used his Corporations to
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~ ~~~ 13 arrange for Ms. Doe to be driven to his house(and vice versa), and to buy her gifts and the like,
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~ ~ ~`; 14 does not somehow make the Corporations liable for sexual abuse. "It would be a dubious
~ mQo
Z 15 proposition indeed to suggest that a party, simply by virtue of engaging in business, owes a duty to
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a ~ 18 The nexus between the Corporations and Michael's alleged abuse of Ms. Doe is

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

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

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

27 retention claims against LAPD where police officer shot and killed his fiancee; "Neither rejecting

28 Mendoza nor firing him would have eliminated his access to a gun. ... 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
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3 incidentally meet while on the job against injuries inflicted independent ofthe performance of

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

5 added). Indeed, even if one 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
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7 have fired or "supervised" him, this would have done nothing to change Michael's access to Ms.

8 Doe. The Complaint specifically alleges that the relationship between Michael and Ms. Doe began
a
a 9 and grew as a result of Michael's personal fame.(FAC ¶ 10.) The Corporations were irrelevant to
a
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o
Q o ~~ 11 result of a connection between Michael and his corporations, as opposed to pastors', teachers' or

~3 ~~~ 12 scout masters' relationships to children, which are a direct result ofthe relationship between the
ich
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z =o °' is the pastors, etc., and the Church, etc. Mendoza,66 Ca1.App.4th at 1339-40.

F 3Q~ 16 Accordingly, even if Plaintiff could get by the fact that the Corporations, by definition,
ae
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a ~ 18 Corporations and Michael's supposed abuse is far too attenuated to support these claims.
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20 Corporations Had A Duty To Protect Her.
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21 Whether a duty of care exists "is properly challenged by demurrer and is a question oflaw

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
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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 tort jurisprudence. The tort law of

26 ~ ~ California does not impose mandatory Good Samaritanism." Ibid.

27 All 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

2 nonfeasance, such as not protecting another from a criminal attack by a third party." Eric J. v.
da
3 Betty M., 76 Cal.App.4th 715, 727(1999)."[W]here the issue is whether the defendant had a duty

4 to protect the plaintiff from 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 Ms. Doe's negligence claims fail as a matter of law because there is no special relationship
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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
a,
a 9 any relationship with her at all—are somehow liable for her alleged molestation by their owner.
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10 Ms. Doe is essentially alleging that all corporations have a roving duty to police the alleged
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a ° o °°°'

~ ~io~ 12 misconduct, regardless ofthe connection to the corporations. This is particularly implausible
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14 Ca1.App.4th at 1605. Nothing in California law would support such an invasive conception of
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15 corporations' duties to the general public.
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20 "there is no special relationship[]creating a 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, a church also has no special relationship with its minor congregants to warn

23 them regarding potential dangers posed by other church members. Conti, 235 Cal.App.4th at
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24 1227-28. Further, the Court of Appeal has held that family members of a convicted, serial

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

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

27 Ca1.App.4th at 727-30. This was despite thefact that the pedophile's parole officer had warned the

28 family that the 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 that the Corporations were Michael's personal business

entities. Although Ms. Doe claims that the Corporations "groomed" children for the entertainment
da
3 industry, and that Ms. Staikos and Ms. Levine had some supervisory responsibility for children,

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

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

6 parentis relationship requiring the Corporations to train, warn or educate Ms. Doe regarding the
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7 risk of sexual abuse by their owner, Michael Jackson.3 There is no allegation in the Complaint

8 that any ofthe alleged sexual abuse took place at the Corporations' offices, during a "youth
a 9 program" organized by the Corporations, or while Ms. Doe was entrusted to the Corporations'
a
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10 care (as opposed to Michael's personal care).
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A ~ 11 Ms. Doe's reliance in the Complaint on Pamela L. v. Farmer, 112 Cal.App.3d 206(1980)
'~ o~- rn
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ich
a i+~go
~ °0~ ch 13 respondent's home (id.at 209-210), whereas the alleged abuse here took place in Michael's
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14 residences as opposed to at the Corporations'offices. Allegations that Michael used the
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15 Corporations to make travel arrangements, etc., do not support the allegation that Ms. Doe was
_ ~ ~
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17 D. The Second Cause of Action Fails Because Ms. Doe Has Not And Cannot

18 Adequately Plead Allegations Supporting A Negligence "Per Se" Claim
a
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20 Michael to the authorities under the Child Abuse and Neglect Reporting Act, Penal Code §§
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21 11166, et seq., fails.(TAC,¶¶ 131-140.) The "mandatory reporter" allegations are meritless,

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

23
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24
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
25
are allegations that might potentially 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
26
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.
27
Henry Mayo Newhall Mem'l Hosp., 12 Cal. 4th 291, 301 (1995). No such facts are alleged.
28

20
DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"
any specific employees ofthe Corporations were "mandated reporters" or "child care custodians"

2 under the statute as operative at the relevant time; and(2)that any employee ofthe Corporations
da
3 other than 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
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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
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m
~ 10 of individuals required to report under the statute. In any event, the Complaint does not identify
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a ~ 11 which class ofemployees were supposedly mandatory reporters and why under the version of the

~3 ~ ~ ~; 12 Penal Code in effect at the time (between 1986 and 1989), or provide a factual basis to support
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~ ~~M 13 such contentions. Nor does the Complaint allege what specific events gave rise to any of the
,~ Q o~
c~ ~~~ 14 Corporations' employees' supposed obligation to report. At best, Ms. Doe claims that Ms. Levine
~ mQo
z ~ z °p 15 and Ms. Staikos were responsible for the well-being of children, but there are no allegations that
~ =o~

~~ Q~ 16 they provided any supervision o Ms. Doe beyond making travel arrangements or that they fell
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17 under any particularly category of"child care custodian" or "mandated reporter" under the

a ~ i8 relevant version of the statute.
a
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x 20 Facts Supporting a Claim for Intentional Infliction of Emotional Distress
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21 Ms. 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 Complaint loosely alleges that the
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24 "board" conferred authority on Michael,the allegation cannot be squared with California law

25 which makes clear that the sole shareholder controls the board, as well as Plaintiff's allegations

26 that both Corporations were "established by Michael Jackson."(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 behalf of the Corporations when he supposedly molested Ms. Doe.
da
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
ily
7 escapade less related to an employer's interests is difficult to imagine." John R. v. Oakland Unified

8 School District, 48 Ca1.3d 438,447(1989). Acts allegedly taken for Michael's "sexual
a 9 gratification" are not "causally attributable to his employment" by the Corporations, and thus the
a
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~
rw 10 Corporations cannot be liable for those acts. Lisa M., 12 Ca1.4th at 301; Delfino, 145 Cal.App.4th
o
Q o ~~ 11 at 813-14 (corporation not vicarious liable for intentional infliction of emotional distress caused by

~3~~~ 12 employee's use of his work computer to send cyberthreats because he "substantially deviated]
ich
~+Mgo
~ ~~~ 13 from the employment duties for personal purposes.").
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~ ~~, 14 F. The Sixth Cause of Action Fails Because Ms. Doe Cannot Allege that the
~ mQo
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~ =o~
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I-~ ~ 10 the Corporations breached any such duties. The boilerplate conclusion that there was an in loco
a
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z 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
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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 of law." City
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24 ofHope 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 behalf and 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"
1 DATED: March 31, 2017 Respectfully Submitted:

2 KINSELLA WEITZMAN ISER KUMP
& ALDISERT LLP
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3

4

5 By:
Jonathan Steinsapir
6 Attorneys for Defendants MJJ Productions, Inc.
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(sued as "Doe 1") and MJJ Ventures, Inc.(sued as
7
"Doe 2")
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28

DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"
1 DECLARATION OF JONATHAN P. STEINSAPIR

I,Jonathan P. Steinsapir, declare as follows:
da
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 of record for Defendants MJJ Productions, Inc.,

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

6 by me to be true and correct, and if called as a 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
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~ 9 '~, ~ Defendants planned to file this demurrer. I explained that the general legal basis for this demurrer
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10 was the same as for the demurrers in the Safechuck matter, and I noted that further meet and
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A o ~~ 11 confer did not appear to be necessary except as to one issue. In particular, I pointed out that
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~3~~~ 12 Defendant "Doe 2"(who is MJJ Ventures) did not exist during the time period of the alleged
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~ ~oM 13 tortious conduct in this case and that it should be dismissed from the case. Plaintiff's counsel
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~ ~ ~`; 14 advised that he disagreed that MJJ Ventures should be dismissed for the following reasons:"We
~ mQo
z ~ Z °~ 15 have alter ego allegations and proof of a $150,000.00 payment to the Plaintiff, from that entity,
d =off
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a 16 dated 1/13/92." Counsel for Plaintiff agreed that no further meet and confer was necessary.
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1~ ~ 10 ~ ~ foregoing is true and correct.
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x 20
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21 ~~
Jonathan P. Steinsapir
22

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24
10386.00300/381132.1
25

26

27

28

24
DEFENDANTS'DEMURRER TO FIRST AMENDED COMPLAINT OF "JANE AA DOE"