You are on page 1of 10

1

Safechuck's opposition confirms that the minimal, new allegations in his latest complaint

2

cannot cure the fundamental defects of his three prior complaints. The oppositionjust repeats, with

3

4

different words and phrases,arguments that have already been addressed and rejected.The

C orporations respectfully request that this case finally be brought to an end.

5 I.

If The Corporations Truly Acted With the "Specific Purpose" of Procuring Children

6

7

8

for Abuse,They Were Not Ne~li~ent As A Matter Of Law.

Safechuck stresses that he has alleged thatthe Corporations were set up for the "specific

purpose"ofprocuring children for abuse.(Opp. 1:7-8.)He thus alleges that the Corporations were

a

9

 

a

criminal enterprises,i.e., direct perpetrators ofchild sexual abuse as"child procurers"

under Penal

a

N

~

10

C ode § 266j. The allegations are absurd—and, unsurprisingly, law enforcement, in years of

w

 

o

A

~

`~

11

investigating all things Michael Jackson,never accused the

Corporations ofbeing criminal

a

oo ~

a3~~~

12 enterprises. That said, Safechuck is correct that

the Court must accept his allegations as true on a

a

M¢o

~

~~M

13 demurrer. This, however, means that the Corporations were not negli~ent at all. The mafia is not

,,~

Qo~

w

~ ~`;

14 "negligent" when it "fails to protect" a business who does not

pay it sufficient "protection money."

~

mQ$

15 Instead, it is doing exactly what it was set up to do: racketeering.

There are civil claims against

7 ~ Z

o0

~

=off

 

N

~' Q ~

16 criminal enterprises and those running them,but they are

not negligence causes ofaction.

~~z~

W O ~ M

 

C~0

J

 

w

a

~

a

w

7

x

17 In Joseph v. Johnson, 178 Cal.App.4th 1404 (2009), the Court addressed this distinction

18 between negligent and willful conduct in the context of civil

19 Court specifically held that a defendant could not be liable in negligence

claims for sexual abuse. And the

under the allegations of a

20 complaint, even though she could be held liable as a direct

21 procurer under the same allegations. Id. at 1412-15. Plaintiffs alleged that the

perpetrator of abuse as a criminal child

woman negligently

22 entrusted children to her husband, who she knew was molester.

23 of action might be viable in the abstract, it was not timely because it did not

a

Regardless of whether this cause

fall within

24 § 340.1(b)(2). Plaintiffs were over the age of26,and they could not

25 the woman had "the right to control" her husband's access to children. Id. at 1412. Allegations that

allege as a matter oflaw that

26 the woman "could have controlled [her husband's] conduct `by not

allowing him to be alone with

27 [plaintiffs]"' was not the "right to control" contemplated by §

340.1(b)(2)and the case law

28 construing it, and the Court affirmed an order

sustaining a demurrer to all negligence claims. Ibid.

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1

At the same time,however,the Court reversed the trialcourt's order that plaintiffs could

2

3

4

5

6

7

not allege sufficient facts to hold the woman liable as directperpetrator of child sexual abuse—

a

where § 340.1(b)(2)and the age 26 cutoff are inapplicable. Id. at 1412-15. The Court pointed out

thatthe complaint alleged thatthe woman had "intentionally provided and/or made [plaintiffs]

available to [the husband]for the purpose oflewd and/or lascivious conduct as defined in Penal

C ode section 288 and caused [them] to engage in conduct proscribed by Penal Code section 288."

Id.at 1414(emphasis added). These allegations were sufficient to support an allegation that the

8

a

a 9

a

10

o

~

11

~ w

A ~

N

' w oman was a "child procurer" under Penal Code § 266j. Thus, she could be held liable as a direct

perpetrator under § 340.1(a)(1), where there is no age 26 cutoff at all. Id. at 1414-15.

A ccordingly, Joseph v. Johnson stands for the propositions that, inter alias(1)

allegations

° that a person is a "child procurer" are allegations that a defendant is a directperpetrator under

~'

o

Q

o

12

13

340.1(a)(1);and(2)allegations that a person acted with the "specific purpose" ofprocuring

§

children for abuse are not themselves sufficient to state a negligence or other cause of action

o '°~

~ ~ o~

rn ~

a MQo

~~m

x

,~

a

~

W ~ ~`;

14

w ithin the scope of § 340.1(b)(2)—a plaintiff must still show the requisite "right to control" the

~

mQo

z~z~ ~ =o~

N ~'~~

Q

~ ~Zo

W o~m

~ 00

a

a

w

w

~

~s

16

17 Scouts v. Superior Court, 206 Cal.App.4th 428 (2012), the Court held that corporations

abuser. Here,the Corporations cannot be liable as direct perpetrators as a matter oflaw because

they are "entities" and not "persons" within the meaning of § 340.1(a). This is because in Boy

are not

18

19 procurers" under § 340.1(a)(1). Id. at 445. 1 Rather, the Court held that"the

"persons" under § 340.1 and thus cannot be held liable "as aiders and abettors or as

child

Legislature intended

x

Zo

21

22

that no claim brought against an entity defendant under

section 340.1 (other than a claim under

subdivision(b)(2))might be commenced after the

added).Thus,here,the factthat Safechuck stresses his

plaintiffs 26th birthday."Ibid.(emphasis

allegationsthatthe Corporations acted with

23

24

25

26

27

28

i Contrary to the opposition's assertions,the Boy Scouts decision had precisely nothing to

do with the Hightower case, and does not even cite it or its reasoning. That a

m ight hypothetically have been an alternative bar to the claims in Boy Scouts—had

raised is irrelevant. One cannot dismiss the entire analysis in Boy Scouts as dicta

there may have been an alternative ground to support the judgment in the case: "It

that a decision does not stand for a proposition not considered by the court." Agnew v. State Board

of Equalization,21 Ca1.4th 310,332(1999).

Hightower analysis

the issue been

simply because

is axiomatic

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1

the "specific purpose" to procure children for abuse both:(1) defeats his negligence claims; and

2 regardless(2) does not relieve him of complying with § 340.1(b)(2)—the "narYow exception to the

3 age 26 cutoff," Quarry v. Doe I, 53 Cal.4th 945, 983 (2012)—for every cause ofaction.

4 II.

Section 340.1(b)(2)Bars All Claims Here.

Safechuck effectively concedes thatthe Corporations had no control over the perpetrator's

5 ~

6 access to children here. That is the death knell of this case. In an attempt to get

7 problem, Safechuck argues that § 340.1(b)(2) does not require that the Corporations beable to

around this

a

a

a

N

~

w

m

A ~

o

~'

°0°'00

o~~

a

~

,~

a

~

x

cG

~

z

~

~i o

c~

rn ~

Mao

~~~

~o,~

~~`;

mQo

~z~ =o°'

o

8 exercise control over Michael.(Opp. 8:28-12:23.) On this point, Safechuck's

9

argument is contrary

to the plain language of the statute. More importantly, however, it is

contrary to controlling

10 authority from the California Court of Appeal and the Supreme Court. Thus,

even ifthis Court

11

agreed with Safechuck's illogical reasoning, it would still have no choice but to reject it. Auto

12

13 CourtofAppeal are binding on all state trial courts unless there are clearly conflicting decisions).

E quity Sales, Inc.- v. Superior Court, 57 Ca1.2d 450, 455 (1962)(all decisions of any district of the

14

is

R egardless, Safechuck is just plain wrong that § 340.1(b)(2) does not require the third

party entity or individual to have "control" overthe alleged perpetrator. The Court of Appeal's

E ~Q~ 16 decision in Aaronoffv. Martinez-Senfiner, 136 Ca1.App.4th 910 (2006),

0

W ORM

makes it clear that the

I7 plain language ofthe statute "requires the

sexual conduct to have arisen through an

exploitation of

OD

J

w

18

control." Id. at 921. This is not some stray

a ~

a

w

z 19 dictum; the Supreme Court expressly adopted Aaronoff's reading of section 340.1(b)(2) in Doe v.

.,

a relationship over which the third party has some

x 20 City ofLos Angeles,42 Ca1.4th 531 (2007). In Doe,the

Supreme Court quoted this exact language

21 from Aaronoffand held that"[t]he language of[§

340.1(b)(2)]expressly supports this

22 characterization." Id. at 543-44. The Supreme

Court continued in its own words:"The statute's

23 enumeration ofthe necessary

24 perpetrator implies that the former was in a position to exercise

relationship between the nonperpetrator defendant and the

some control over the latter." Id. at

25 544(emphasis added).Numerous other courts have reached

26 Joseph v. Johnson, 178 Cal.App.at 1412; Dutra v. Eagleson, 146 Ca1.App.4th 216, 227-28 (2006).

the exactsame conclusion.E.g.,

Z7

28 Safechuck points out that Joseph and Aaronoffdealt with

Safechuck's attempts to distinguish these cases are not persuasive.(Opp.

9:16-10:28.)

individuals,and not entities. But he does

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1

not explain why that distinction matters. Section 340.1(b)(2) does not distinguish between entities

2 ~ and individuals. C.C.P. § 340.1(b). The Supreme Court in Doe addressed the liability of an entity

3

4

(the LAPD), but quoted the Aaronoffcase, involving individuals, to explain § 340.1(b)(2).

In any event, in Joseph, the Court held that it was "not the familial relationships that defeat

5

6

7

plaintiffs' claims," but the "lack of a requisite relationship between Johnson and Caeser

provide Johnson with control over Caesar's conduct." Joseph, 178 Cal.App.4th at 1412 (emphasis

added). The claims here fail for the same reason: "the lack of a requisite relationship between [the

that would

8

a 9

a

10

a w

►.

11

A

`~

o

N

a

~

a oo ~

~

~

a

~

o~~

~oco

rn ~

mao

o

Q~m

x Q°~

W ~ ~`; ~ mQo

Z o0

=o~

~

~ ~~~

~

12

13

14

15

16

~

W

~Zo

o~M

Q~

J

17

Corporations] and [Michael Jackson] that would provide [the Corporations] with control

[Michael's] conduct." Safechuck tries to dismiss the "control" language in Aaronoff, by arguing

over

that the Court noted that § 340.1(b)(2) applies to certain employer/employee

circumstances. (Opp.

at 10:11-15.) Section 340.1(b)(2) indeed applies to certain employer/employee relationships, such

as a teacher and school district. But it does not apply to all such relationships. Liability is limited

to circumstances where the non-perpetrator—be it an entity or individual—is in a position to exert

control over the alleged perpetrator, implement safeguards respecting him, supervise him, etc.

A s all the relevant cases hold, control is required. Yet, as Safechuck does not actually

dispute, the Corporations Code and Coit Drapery Cleaners v. Sequoia Ins. Co., 14 Cal.App.4th

1595, 1601-02 (1993), make it abundantly clear that a sole shareholder, such as Michael, controls

a ~

w

18

19 control its president and sole shareholder. In an effort to get around this incurable

the corporation entirely. It is not the other way around. A corporate entity cannot discipline or

deficiency,

x

Safechuck makes a confusing argument that it does not matter that an entity is "subjectively"

20

21 organized so that nobody could hire or fire

22 "objective" duty to supervise a president. It is unclear what the terms "subjective" and "objective"

the president, because there is

purportedly an

23 mean here in the context of how a corporation is organized. But in any event, the

Corporations

24

were objectively organized in compliance with California law, which readily allows for

sole

shareholder corporations and acknowledges that the shareholder controls the board and

officers.

and the legal

25

26 Corp. Code §§ 300(a), 303(a), 312(b), 603(d). Based on Michael's objective status

27 structure of the Corporations—Michael being the creator, sole

28 own personal businesses—Michael controlled the Corporations, not the other way around.

shareholder, and president of his

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

Safechuck admits his argument is really that "as an agent of these business entities,

2 [Michael's] actions ofplacing himselfinto a position of power within the entities,without

3 supervision, while knowing his dangerous propensities,certainly would be negligent acts imputed

4 to these entities."(Opp. 12:14-16.) Accepting Safechuck's argument wouldplace an impossible

5 duty on the Corporations and would render Coit a dead letter.2 Under Safechuck's theory,any

6 intentional tort(or crime) could be re-characterized as "negligent supervision." All adults are

7 ultimately responsible for "supervising" and "controlling" themselves. Every crime could be re-

8 pleaded as a "negligent supervision" of oneself The line between negligence and intentional

a

a

a

H

~

w

m

9 m isconduct would be destroyed,eradicating California's entirejurisprudence on this distinction

10 (which most often arises in insurance contexts for obvious reasons). That would render

a A

~

o~~

11

m eaningless the holding of the Supreme Court that "[t]here is no such thing as negligent or even

~ ~oc~°o

12 reckless sexual molestation." J. C. Penney Cas. Ins. Co. v. M. K., 52 Ca1.3d 1009, 1021 (1991).

 

o rn ~

a

m go

~

~~~

13

T he irrationality of Safechuck's position is easy to understand when examined in the

x

Q o

W

~ ~~

14

context of his negligence claims. Safechuck alleges that Michael established the Corporations to

~

mQ$

z ~z~

~s

run his personal business.(TAC, ¶¶ 3-4.) Safechuck is alleging that a person who reasonably

N

~~~ 16 ~suspects that he himselfmay have criminal tendencies(sexually criminal,criminally violent,

~

3 zo

W

OEM

I7 financially criminal, etc.) has negligence-based duties:(1)not to allow himselfto work at his own

J

W

a

~

1O

companies;(2)to fire himself;(3) not to retain himself; and(4)to warn others about his criminal

a

w

 

19

20

~

Safechuck engages in a futile effort to distinguish Coit(Opp. at 11-12), but he

x

misunderstands the import of Coit and the relevant Corporations Code provisions. Safechuck

21

dismisses Coit as a mere "insurance" case. However, the point of Coit is that,just as Safechuck

has here,the party in Coit had a powerful monetary incentive to re-characterize intentionally

22

tortious misconduct as negligent conduct. As the Court in Coit recognized, a party cannot re-

characterize allegations ofintentionally tortious misconduct as "negligence" where "there [is] no

23

w ay [that] the corporate entity,could have disciplined or supervised its president,chairman ofthe

board, and major shareholder." Coit, 14 Ca1.App.4th at 1601-02. Insurance is not the only area of

24

law where there is a powerful incentive to try to recharacterize willful misconduct as

"negligence."The bankruptcy courts also deal with these issues,and have rejected creative

25

attempts to recharacterize criminal conduct of a corporation's control person as the "negligent

supervision" ofthe control person by corporate officers. In re Donahue Securities, Inc.,318 B.R.

26

667,677(Bkrtcy. S.D. Ohio 2004)(bankrupt corparation's sole shareholder converted clientfunds

for his own use; bankruptcy trustee could not recover on negligent supervision theory against

27

corporation's compliance officer because compliance officer"had no authority whatsoever to

discipline or fire" sole shareholder).

28

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

propensities. This would preclude classes of people from running their own businesses at all. If

2 denying such persons these privileges is even permissible under the State and Federal

3

C onstitutions,the decision to deny them those privileges should be made by the Legislature, and

4 should not be judicially created out of whole cloth as a principle of negligence law. 3

a a

a

W

m

A

a

o

o~~ `~

~ ~oc~°o

a

~

x

a°~

~~~

mgo

o ~, ~,

W ~ ~`;

mQ°

~

7,~zC0

~ = ° ~o

H3 Q~,

0

w

~Nm

w

~

~~

a

w

x

5 III.

The Negligence Claims All Fail On Their Own Terms and Under § 340.1(b)(2).

6

A. The Negligent Supervision,Hiring,and Retention Claims All Fail.

7 Safechuck ignores the elements of his claims,and instead argues

implausibly that

8

9

§ 340.1(b)(2) does not require that the Corporations to be able to exercise

control over Michael.

(Opp. 8:28-12:23.)But putting § 340.1(b)(2)to the side for the

moment, Safechuck ignores that

10 negligent supervision, hiring and retention claims, themselves, require`the Corporations be able to

11

12

supervise, hire or fire Michael. See Z. V. v. County ofRiverside, 238 Ca1.App.4th 889, 902 (2015).

Safechuck's effective concession thatthe Corporations could not control Michael mandates

13 granting this demurrer without leave on at least these claims.

14 Likewise,the contact between Michael and

Safechuck did not arise from an employment

15

16

17

18

19

20

21

22

relationship between Michael and the Corporations or an employment relationship between the

C orporations and Safechuck. In opposition, Safechuck ignores his own allegations and the~law

cited by the Corporations.(Demurrer at 16:8-17:22.)Instead, Safechuck simply says that he had

an employment relationship with the Corparations.(Opp. at 12:24-13:7.) However,the only

allegations of Safechuck's employment by Michael or the Corporations was in 1994 or 1995, well

after the alleged abuse had ended.(TAC 39-40.)(Safechuck needlessly and improperly attaches

several exhibits to the pleadings. But none of the exhibits even

suggest a relationship between

Safechuck and the CorpoYations prior to 1994.)Even ifthere had been

some limited employment

23

24

25

26

27

28

3 In the duty to warn context,a criminal would have a civil negligence duty to

potential crimes, raising serious Fifth Amendment concerns. In Kassey S. v.

Ca1.App.4th 1276(2013),the Court rejected a similar

duty to report his own alleged sexual abuse to a minor, and that the officer's

rendered the City vicariously liable for the police officer's alleged

report. Id. at 1280-81. Requiring a person "to report his or her own acts of child abuse would

amount to providing the state with evidence of that person's

w ith the privilege against self-incrimination." Id. at 1281. The same reasoning

confess to

City of Turlock, 212

contention,i.e.,thata police officer had a

failure to do so

"negligence" in failing to so

criminal acts" and therefore "conflicts

applies here.

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1

~relationship,the affirmative allegations demonstrate thatthe friendship between Michael and

a

a

a

N

~

w

m

o

2

3

4

5

6

7

8

9

10

~Safechuck developed outside of and prior to any purported involvement from the Corporations.

~Notably,Safechuck does not(and cannot)allege thatthe alleged abuse would have been any

~ different or would not have occurred ifthe Corporations did not exist at all.

B. The General Negligence Claims Fail Because There Is No Duty of Care.

Safechuck devotes a significant portion of his opposition arguing that he was in a "special

relationship" with the Corporations as a minor employee who was in the Corporations' custody

and control.(Opp. 5:7-8:5.)The duty Safechuck claims the Corporations owed him was a duty to

"exercise reasonable control over [Michael's] actions"(Opp. at 5:14-15), a futile duty in light of

the fact that Michael himselfcontrolled the entities."[A] plaintiffwho alleges a defendant had a

a A

~

~'

11 duty to control another person based on a special relationship must make atwo-fold showing:(1)

° o '°~

~3~~~

12 that the defendant had the ability to control the actor and (2)that the defendant bore a duty of

4 +c~ao

~

~oM

13

care." Smith v. Freund, 192 Cal.App.4th 466, 474 (2011)(emphasis added). This fits neatly with

x

;~~

 

W

~

~`;

14

the control requirements of§ 340.1(b)(2)and ofthe negligent supervision,hiring,and retention

~

mQo

 
 

Z °~

15

cases. One can only breach a duty to control ifone has the ability to control.

~

=o~

 

J

~~

16

A s to the contention that Safechuck was a "minor employee," there are several problems

~

3 Z~

 

W ORM

I7 ~~here. First, Safechuck cites no cases whatsoever that hold that an employment relationship(even

M3 O~

J

w

~

ig

of a minor), in-and-of-itself, is a "special relationship" for negligence-law duty

purposes. There

a

w

z

19

are no such cases, particularly where all ofthe alleged abuse took place outside of any

x

20 "employment" premises and at Michael Jackson's personal residences. Second, Safechuck ignores

21 the fact that he was not(allegedly)employed by the Corporations until 1994 or 1995. This

was

22 years after the alleged abuse ceased in 1992.(TAC ¶¶ 36,69-70.) Although as set out

in the

23 ~~demurrer, the Complaint now alleges in conclusory fashion that

Safechuck was an employee "at

24 all relevant times," this vague and general allegation cannot overcome the more specific

25 allegations that he was not hired until 1994 or 1995. There are nofacts whatsoever alleged to

26 support the conclusory allegation that Safechuck was an employee prior to 1994."Although a

27 demurrer admits pleaded facts, it does not admit pleaded matters, such as" a party's "legal status

28 as an at-will employee, that are contentions, deductions or conclusions of fact or law." Popescu v.

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

Apple Inc., 1 Cal.App.Sth 39, 59 (2016). See also Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222

Ca1.App.3d 1371,1390(1990)(on demurrer,specific allegations control over inconsistent general

allegations).The actualfacts allegedshow that,otherthan Ms.Levine making travel plansfor

~Safechuck and his family on occasion(TAC ¶¶ 13,25,29),Safechuck had no Yelationship with

~the Corporations at the time ofthe alleged abuse.

Safechuck's employment argument relies on four cases from 1902 to 1912 that have

nothing to do with sexual abuse and involve companies putting young or inexperienced employees

a

a

a

N

~

w

m

o

A o ~~

~ ~oc`°o

a rn ~

8

9

10

11

12

in dangerous working conditions(such as operating a rip saw) without adequate training.(See

O pp. at 5:19-6:1.) These cases are inapposite. Putting aside the fact that Safechuck was not an

employee(and thattwo ofthe cases do not even involve minors),the cases are about on-thejob

w ork-related injuYies. Jenson v. Will & Finck Co., 150 Cal. 398, 404 (1907)(young employee was

injured loading heavy truck on elevator); Quinn v. Electric Laundry Co., 155

Cal. 500, 501-02

a

i~ao

 

~

~~~

13 (1909)(19 year old woman who typically shook out garments was injured when asked to

operate

Q o~

 

W

~ ~`;

14 dangerous machinery); Mansfield v. Eagle Box &Mfg. Co., 136 Cal. 622,

624 (1902)(19 year old

~

mao

 

15

m

an injured operating rip saw without having received proper training). Here,Safechuck has not

a

~

zoo

~

=off

 
 

Q~,

16 alleged,and could not allege,thatthe sexual abuse was work-related.

 

H3

0

W

o~~

17

Safechuck next argues that, even ifhis employment argument fails, the Rowland factors

OO

J

 

w

~]

~

1g

support a duty because Safechuck was in the Corporations' custody and control. As to the

 

a

w

., z

i9

contention that the Corporations stood "in loco parentis" to Safechuck, this is also just a

 

x

20

is

"contention, deduction or conclusion of fact or law" which not accepted as true at

demurrer.

21 P arties, like schools, daycare facilities and the like act in loco

22 parent"—to children. There are no factual allegations at all that the

parentis—literally,"in place of a

CorpoYations took Safechuck

23 into their custody and assumed the duties ofa parent(as a school would during

24 best, there might be allegations that Michael personally did.so i.e., when Safechuck stayed at

25 M ichael'spersonal residences. But the contact with the Corporations,during the time ofthe

school hours). At

26 abuse, was extremely fleeting as noted above.(TAC ¶¶ 13, 25, 29, 46-47.)

27 Safechuck's relies extensively on the recent decision in Doe v. U.S. Youth Soccer, 8

28 C a1.App.Sth 1118 (2017). His reliance on that case is odd. In U.S. Youth Soccer,the

Court of

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1 Appeal held that the defendant—"an organization that provided activities exclusivelyfor

2 children"—had no du

to train, warn or educate children or parents about sexual abuse (one of

3 ~Safechuck's claims here) because it was a sports organization where children go to develop

4 ~athletic skills, and was not designed to educate children or parents regarding sexual abuse. Id. at

5 1138-39. The onl du

the Court found was that the defendant should have ran "criminal

6 background checks" on coaches, because youth soccer organizations "controlled which

7 individuals had access to the children in their programs." Id. at 1134 (emphasis added). This

8 makes sense in situations where the perpetrator's access to the child arose through the

a.

a

a

N

~

w

►.

A

`~

rn ~

P.Mao

o°~'.

o

~'

~

°

~ocC°o

o

~

~

~~~

x Q

W

~

~

~

o

J

,~

~

~ ~ , mQ~ ~z~

=o °'

`~~~

N

J

1p

~ ~zo

W o~~

C~ J

w

~]

a

~

9 perpetrator's and victim's involvement with a youth organization, and where the organization had

10 control over who had access to children. That was not the case here, however. Moreover, if the

11 Court imposed a similar duty here, Michael Jackson would have-been required to run a criminal

12 background check on himself, before he was ever accused (and acquitted) of acrime—Michael

13

was first investigated for criminal conduct in 1993, -after the alleged abuse of Safechuck ended. A

14

background check would have revealed nothing—thus, such a duty would get Safechuck nowhere.

15

C.

The Mandatory Reporter Allegations are Meritless.

16

Safechuck's opposition fails to explain how the Corporations were mandated reporters or

17 which employees were mandated reporters or even what version of the statute,

if any, existed at

1g

the relevant time. Safechuck is attempting to hold the Corporations liable as negligent per se under

w

7

19

a Penal Code statute that did not exist at the time of the alleged conduct. All statutes are presumed

M

~O

not to beretroactive in California, and Penal Code statutes can almost never be retroactively

21 applied. See U.S. Const., art. I, § 10, cl.

1; Stogner v.

California, 539 U.S. 607, 610-11 (2003).

22 Safechuck simply ignores this issue, effectively conceding that he has no answer, and

relies on a

23 provision in the current version that a mandated reporter may include individuals at "a

public or

24 private organization whose duties require direct contact and supervision of children, including a

25 foster family agency." Penal Code § 11165.7. Although the Complaint contains

conclusory

26 allegations that the Corporations are "schools" or "daycare centers," these again are

just

27 conclusions supported by literally no facts. As pointed out in the demurrer, but also ignored by

28 Safechuck, there are no allegations explaining which of the Corporations'

employees (or category

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1

of employees) were supposedly mandatory reporters,the type of work they did in order to allow

 

2

3

4

5

6

7

8

a

a

9

a

W

10

m

 

o

A

a

~'

11

o~~

the Court to evaluate whether their duties do in fact come within the scope of the statute (in effect

between 1988 and 1992) or who besides Michael regularly had direct contact and supervision

over Safechuck. As noted above, the law is crystal clear that Court could not impose a duty on

a

M ichael to report his own alleged wrongdoing. Kassey S.,212 Ca1.App.4th at 1280-81.

D. The Corporations Were Not Safechuck's Fiduciaries.

A s set out in the moving papers,there are no facts to support the contention that the

I~relationship, if any, between the Corporations and Safechuck was

a fiduciary one. Safechuck's

opposition relies on the conclusory allegation of an employment relationship, but points to no case

that would suggest that such a relationship is fiduciary. The only case cited by Safechuck dealing

with a fiduciary relationship was a case involving an attorney and client,a paradigm example of a

~ ~oc~Do

 

o

rn ~

a

m go

~

~~m

 

0

x

Q~~

W

~ ~`;

~

mQo

z~z~

~ = o~

12

fiduciary relationship. Barbara A. v. John G., 145 Cal.App.3d 369, 383 (1983). The only other

13

case cited has nothing to do with fiduciary duties. It is a civil service case concerning an appeal by

14

a tenured teacher of her firing for misconduct. Board ofEducation v. Weiland, 179 Ca1.App.2d

is

808,809-10(1960).

N

~'~~,

16

E.

The Intentional Infliction Claim Fails.

~

~Z~

 

W

ORM

I7

A s explained in the moving papers,the intentional infliction claim fails for, among other

~

J

 

W

~

1O

~reasons, the fact that it alleges that the Corporations' "outrageous conduct" was that they were

a

w

 

19

"incapable ofsupervising and preventing

Michael Jackson,from committing wrongful sexual

x

Zo

acts."(TAC ¶ 124.)Accardingly,the claim necessarily does not come within the scope ofsection

21

340.1(b)(2). That section requires that the Corporations "could have employed safeguards to

22

prevent the sexual assault

[and] requires the sexual conduct to have arisen through an

23

exploitation of a relationship over which [the Corporations] have] some control." Doe v. City of

24

Los Angeles,42 Ca1.4th at 544. Safechuck ignores this argument altogether. Safechuck's new

25

argument that the Corporations had an "objective duty" to do what they could not possibly do fails

26

to alter the equation.

27

28

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT