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 opposition just repeats, with
da
3 different words and phrases, arguments that have already been addressed and rejected. The

4 Corporations 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 for Abuse, They Were Not Ne~li~ent As A Matter Of Law.
ily
7 Safechuck stresses that he has alleged that the Corporations were set up for the "specific

8 purpose" of procuring children for abuse.(Opp. 1:7-8.) He thus alleges that the Corporations were
a
a 9 criminal enterprises, i.e., direct perpetrators of child sexual abuse as "child procurers" under Penal
a
N
m
~
w 10 Code § 266j. The allegations are absurd—and,unsurprisingly, law enforcement, in years of
o
~ `~
A oo
a ~ 11 investigating all things Michael Jackson, never accused the Corporations of being criminal

a3 ~~~ 12 enterprises. That said, Safechuck is correct that the Court must accept his allegations as true on a
ich
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$
7 ~ Z o0 15 Instead, it is doing exactly what it was set up to do: racketeering. There are civil claims against
~ =off
N ~' Q ~ 16 criminal enterprises and those running them, but they are not negligence causes of action.
ae
~ ~ z~
W O~ M 17 In Joseph v. Johnson, 178 Cal.App.4th 1404 (2009), the Court addressed this distinction
C~0 J
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a ~ 18 between negligent and willful conduct in the context of civil claims for sexual abuse. And the
a
w
7 19 Court specifically held that a defendant could not be liable in negligence under the allegations of a

x 20 complaint, even though she could be held liable as a direct perpetrator of abuse as a criminal child
l.c

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

22 entrusted children to her husband, who she knew was a molester. Regardless of whether this cause

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

24 § 340.1(b)(2). Plaintiffs were over the age of 26, and they could not allege as a matter oflaw that

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

2 not allege sufficient facts to hold the woman liable as a direct perpetrator of child sexual abuse—
da
3 where § 340.1(b)(2) and the age 26 cutoff are inapplicable. Id. at 1412-15. The Court pointed out

4 that the complaint alleged that the woman had "intentionally provided and/or made [plaintiffs]

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

6 Code section 288 and caused [them] to engage in conduct proscribed by Penal Code section 288."
ily
7 Id.at 1414(emphasis added). These allegations were sufficient to support an allegation that the

8 ' woman was a "child procurer" under Penal Code § 266j. Thus, she could be held liable as a direct
a
a 9 perpetrator under § 340.1(a)(1), where there is no age 26 cutoff at all. Id. at 1414-15.
a
N
m
~
w 10 Accordingly, Joseph v. Johnson stands for the propositions that, inter alias (1) allegations
~ o
A ~ ~'
a °o '
°~ 11 that a person is a "child procurer" are allegations that a defendant is a direct perpetrator under
~ ~ o~
o rn ~ 12 § 340.1(a)(1); and (2) allegations that a person acted with the "specific purpose" of procuring
ich
a MQo
~ ~~m 13 children for abuse are not themselves sufficient to state a negligence or other cause of action
x Q o ,~
W ~ ~`; 14 within the scope of § 340.1(b)(2)—a plaintiff must still show the requisite "right to control" the
~ mQo
z ~z~ ~s abuser. Here, the Corporations cannot be liable as direct perpetrators as a matter of law because
~ =o~
N ~'~~
Q 16 they are "entities" and not "persons" within the meaning of § 340.1(a). This is because in Boy
ae
~ ~Zo
W o~m 17 Scouts v. Superior Court, 206 Cal.App.4th 428(2012), the Court held that corporations are not
~ 00 w
a ~ 18 "persons" under § 340.1 and thus cannot be held liable "as aiders and abettors or as child
a
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19 procurers" under § 340.1(a)(1). Id. at 445. 1 Rather, the Court held that "the Legislature intended

x Zo that no claim brought against an entity defendant under section 340.1 (other than a claim under
l.c

21 subdivision (b)(2)) might be commenced after the plaintiffs 26th birthday." Ibid. (emphasis

22 added). Thus, here, the fact that Safechuck stresses his allegations that the Corporations acted with

23
om

24 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 Hightower analysis
25 might hypothetically have been an alternative bar to the claims in Boy Scouts—had the issue been
raised is irrelevant. One cannot dismiss the entire analysis in Boy Scouts as dicta simply because
26 there may have been an alternative ground to support the judgment in the case: "It is axiomatic ...
that a decision does not stand for a proposition not considered by the court." Agnew v. State Board
27 ofEqualization, 21 Ca1.4th 310, 332(1999).

28

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
da
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.

5~ Safechuck effectively concedes that the Corporations had no control over the perpetrator's

6 access to children here. That is the death knell of this case. In an attempt to get around this
ily
7 problem, Safechuck argues that § 340.1(b)(2) does not require that the Corporations beable to

8 exercise control over Michael.(Opp. 8:28-12:23.) On this point, Safechuck's argument is contrary
a
a 9 to the plain language of the statute. More importantly, however, it is contrary to controlling
a
N
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m o
A °0°
a ~ '
~'
00 11 agreed with Safechuck's illogical reasoning, it would still have no choice but to reject it. Auto
~ o~~
,~ ~io orn ~c~ 12 Equity Sales, Inc.- v. Superior Court, 57 Ca1.2d 450, 455 (1962)(all decisions of any district of the
ich
a Mao
~ ~~~ 13 Court of Appeal are binding on all state trial courts unless there are clearly conflicting decisions).
x ~o,~
cG ~~`; 14 Regardless, Safechuck is just plain wrong that § 340.1(b)(2) does not require the third
~ mQo
z ~z~ is party entity or individual to have "control" overthe alleged perpetrator. The Court of Appeal's
~ =o°'
E ~Q~ 16 decision in Aaronoffv. Martinez-Senfiner, 136 Ca1.App.4th 910 (2006), makes it clear that the
0
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W ORM
OD J
I7 plain language of the statute "requires the sexual conduct to have arisen through an exploitation of
w

a ~ 18 a relationship over which the third party has some control." Id. at 921. This is not some stray
a
w
z 19 dictum; the Supreme Court expressly adopted Aaronoff's reading of section 340.1(b)(2) in Doe v.
.
,
x 20 City ofLos Angeles, 42 Ca1.4th 531 (2007). In Doe,the Supreme Court quoted this exact language
l.c

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 of the necessary relationship between the nonperpetrator defendant and the
om

24 perpetrator implies that the former was in a position to exercise some control over the latter." Id. at

25 544(emphasis added). Numerous other courts have reached the exact same conclusion. E.g.,

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

Z7 Safechuck's attempts to distinguish these cases are not persuasive.(Opp. 9:16-10:28.)

28 Safechuck points out that Joseph and Aaronoffdealt with 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
da
3 (the LAPD), but quoted the Aaronoff case, involving individuals, to explain § 340.1(b)(2).

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

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

6 provide Johnson with control over Caesar's conduct." Joseph, 178 Cal.App.4th at 1412 (emphasis
ily
7 added). The claims here fail for the same reason: "the lack of a requisite relationship between [the

8 Corporations] and [Michael Jackson] that would provide [the Corporations] with control over
a
a 9 [Michael's] conduct." Safechuck tries to dismiss the "control" language in Aaronoff, by arguing
a
N
m
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w 10 that the Court noted that § 340.1(b)(2) applies to certain employer/employee circumstances. (Opp.
►. o
~ ~
A oo
a `~ 11 at 10:11-15.) Section 340.1(b)(2) indeed applies to certain employer/employee relationships, such
~ o~~
~ ~oco
o rn ~ 12 as a teacher and school district. But it does not apply to all such relationships. Liability is limited
ich
a mao
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x Q°~
W ~ ~`; 14 control over the alleged perpetrator, implement safeguards respecting him, supervise him, etc.
~ mQo
~ Z o0
15 As all the relevant cases hold, control is required. Yet, as Safechuck does not actually
~ =o~
~ ~~~ 16 dispute, the Corporations Code and Coit Drapery Cleaners v. Sequoia Ins. Co., 14 Cal.App.4th
ae
~ ~Zo
W o~M
Q~ J
17 1595, 1601-02 (1993), make it abundantly clear that a sole shareholder, such as Michael, controls

a ~ 18 the corporation entirely. It is not the other way around. A corporate entity cannot discipline or
w
19 control its president and sole shareholder. In an effort to get around this incurable deficiency,

x 20 Safechuck makes a confusing argument that it does not matter that an entity is "subjectively"
l.c

21 organized so that nobody could hire or fire the president, because there is purportedly an

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

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

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

25 shareholder corporations and acknowledges that the shareholder controls the board and officers.

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

27 structure of the Corporations—Michael being the creator, sole shareholder, and president of his

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

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 of placing himself into a position of power within the entities, without
da
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
ily
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 9 misconduct would be destroyed, eradicating California's entire jurisprudence on this distinction
a
H
m
~
w 10 (which most often arises in insurance contexts for obvious reasons). That would render
m
A o~~
a ~ 11 meaningless the holding of the Supreme Court that "[t]here is no such thing as negligent or even

~ ~oc~°o
o rn ~ 12 reckless sexual molestation." J. C. Penney Cas. Ins. Co. v. M. K., 52 Ca1.3d 1009, 1021 (1991).
ich
a m go
~ ~~~ 13 The 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,
ae
~ 3 zo
W OEMJ I7 financially criminal, etc.) has negligence-based duties:(1) not to allow himself to work at his own
W

a ~ 1O companies;(2)to fire himself;(3) not to retain himself; and(4)to warn others about his criminal
a
w
19
~ Safechuck engages in a futile effort to distinguish Coit(Opp. at 11-12), but he
x 20
misunderstands the import of Coit and the relevant Corporations Code provisions. Safechuck
l.c

dismisses Coit as a mere "insurance" case. However, the point of Coit is that,just as Safechuck
21
has here, the party in Coit had a powerful monetary incentive to re-characterize intentionally
tortious misconduct as negligent conduct. As the Court in Coit recognized, a party cannot re-
22
characterize allegations of intentionally tortious misconduct as "negligence" where "there [is] no
way [that] the corporate entity, could have disciplined or supervised its president, chairman of the
23
board, and major shareholder." Coit, 14 Ca1.App.4th at 1601-02. Insurance is not the only area of
om

law where there is a powerful incentive to try to recharacterize willful misconduct as
24
"negligence." The bankruptcy courts also deal with these issues, and have rejected creative
attempts to recharacterize criminal conduct of a corporation's control person as the "negligent
25
supervision" of the control person by corporate officers. In re Donahue Securities, Inc., 318 B.R.
667,677(Bkrtcy. S.D. Ohio 2004)(bankrupt corparation's sole shareholder converted client funds
26
for his own use; bankruptcy trustee could not recover on negligent supervision theory against
corporation's compliance officer because compliance officer "had no authority whatsoever to
27
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
da
3 Constitutions, 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

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.
ily
7 Safechuck ignores the elements of his claims, and instead argues implausibly that

8 § 340.1(b)(2) does not require that the Corporations to be able to exercise control over Michael.
a
a 9 (Opp. 8:28-12:23.) But putting § 340.1(b)(2) to the side for the moment, Safechuck ignores that
a
m
W 10 negligent supervision, hiring and retention claims, themselves, require `the Corporations be able to
m o
A `~ 11 supervise, hire or fire Michael. See Z. V. v. County ofRiverside, 238 Ca1.App.4th 889, 902(2015).
a o~~
~ ~oc~ °
o
o ~, ~, 12 Safechuck's effective concession that the Corporations could not control Michael mandates
ich
a mgo
~ ~~~ 13 granting this demurrer without leave on at least these claims.
x a°~
W ~ ~`; 14 Likewise, the contact between Michael and Safechuck did not arise from an employment
~ mQ°
,~zC0
7 15 relationship between Michael and the Corporations or an employment relationship between the
~ = ° ~o
16 Corporations and Safechuck. In opposition, Safechuck ignores his own allegations and the~law
H3 Q~,
0
ae
w ~Nm 17 cited by the Corporations.(Demurrer at 16:8-17:22.) Instead, Safechuck simply says that he had
~~ w
~ 18 an employment relationship with the Corparations.(Opp. at 12:24-13:7.) However,the only
a
w
19 allegations of Safechuck's employment by Michael or the Corporations was in 1994 or 1995, well

x 20 after the alleged abuse had ended.(TAC ¶¶ 39-40.)(Safechuck needlessly and improperly attaches
l.c

21 several exhibits to the pleadings. But none of the exhibits even suggest a relationship between

22 Safechuck and the CorpoYations prior to 1994.) Even if there had been some limited employment

23
om

3 In the duty to warn context, a criminal would have a civil negligence duty to confess to
24
potential crimes, raising serious Fifth Amendment concerns. In Kassey S. v. City of Turlock, 212
Ca1.App.4th 1276 (2013), the Court rejected a similar contention, i.e., that a police officer had a
25
duty to report his own alleged sexual abuse to a minor, and that the officer's failure to do so
rendered the City vicariously liable for the police officer's alleged "negligence" in failing to so
26
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 criminal acts" and therefore "conflicts
27
with the privilege against self-incrimination." Id. at 1281. The same reasoning applies here.
28

REPLY BRIEF IN SUPPORT OF DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 ~ relationship, the affirmative allegations demonstrate that the friendship between Michael and

2 ~ Safechuck developed outside of and prior to any purported involvement from the Corporations.
da
3 ~ Notably, Safechuck does not(and cannot) allege that the alleged abuse would have been any

4 ~ different or would not have occurred if the Corporations did not exist at all.

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

6 Safechuck devotes a significant portion of his opposition arguing that he was in a "special
ily
7 relationship" with the Corporations as a minor employee who was in the Corporations' custody

8 and control.(Opp. 5:7-8:5.) The duty Safechuck claims the Corporations owed him was a duty to
a
a 9 "exercise reasonable control over [Michael's] actions"(Opp. at 5:14-15), a futile duty in light of
a
N
m
~
w 10 the fact that Michael himself controlled the entities. "[A] plaintiff who alleges a defendant had a
m o
A ~ ~'
a °o '
°~ 11 duty to control another person based on a special relationship must make atwo-fold showing:(1)

~3 ~~~ 12 that the defendant had the ability to control the actor and (2)that the defendant bore a duty of
ich
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 of the negligent supervision, hiring, and retention
~ mQo
Z °~ 15 cases. One can only breach a duty to control if one has the ability to control.
~ =o~
J ~~ 16 As to the contention that Safechuck was a "minor employee," there are several problems
~ 3 Z~
ae
W ORMJ I7 ~ ~ here. First, Safechuck cites no cases whatsoever that hold that an employment relationship (even
M3 O~
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
l.c

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
om

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
da
allegations). The actualfacts alleged show that, other than Ms. Levine making travel plans for

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

~ the Corporations at the time of the alleged abuse.

Safechuck's employment argument relies on four cases from 1902 to 1912 that have
ily
nothing to do with sexual abuse and involve companies putting young or inexperienced employees

8 in dangerous working conditions (such as operating a rip saw) without adequate training.(See
a
a 9 Opp. at 5:19-6:1.) These cases are inapposite. Putting aside the fact that Safechuck was not an
a
N
m
~
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m o
A o ~~ 11 work-related injuYies. Jenson v. Will & Finck Co., 150 Cal. 398, 404(1907)(young employee was

~ ~oc`°o
a rn ~ 12 injured loading heavy truck on elevator); Quinn v. Electric Laundry Co., 155 Cal. 500, 501-02
ich
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
~ zoo 15 man injured operating a rip saw without having received proper training). Here, Safechuck has not
~ =off
Q~, 16 alleged, and could not allege, that the sexual abuse was work-related.
H3 0
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17 Safechuck next argues that, even if his employment argument fails, the Rowland factors
OO
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~] ~ 1g support a duty because Safechuck was in the Corporations' custody and control. As to the
a
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z i9 contention that the Corporations stood "in loco parentis" to Safechuck, this is also just a
.,
x 20 "contention, deduction or conclusion of fact or law" which is not accepted as true at demurrer.
l.c

21 Parties, like schools, daycare facilities and the like act in loco parentis—literally,"in place of a

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

23 into their custody and assumed the duties of a parent(as a school would during school hours). At
om

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

25 Michael's personal residences. But the contact with the Corporations, during the time of the

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 Ca1.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 exclusively for

2 children"—had no du to train, warn or educate children or parents about sexual abuse (one of
da
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
ily
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 9 perpetrator's and victim's involvement with a youth organization, and where the organization had
a
N
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~w 10 control over who had access to children. That was not the case here, however. Moreover, if the
►. o
A ~ ~' 11 Court imposed a similar duty here, Michael Jackson would have- been required to run a criminal
`~ ° o°~'.
~ o~ocC°o
rn ~ 12 background check on himself, before he was ever accused (and acquitted) of acrime—Michael
ich
P.Mao
~ ~~~ 13 was first investigated for criminal conduct in 1993, -after the alleged abuse of Safechuck ended. A
x Q o ,~
J ~
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~ mQ~
~ ~z~ 15 C. The Mandatory Reporter Allegations are Meritless.
~ =o °'

N J `~~~
1p 16 Safechuck's opposition fails to explain how the Corporations were mandated reporters or
ae
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W o~~ 17 which employees were mandated reporters or even what version of the statute, if any, existed at
C~ J
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~] ~ 1g the relevant time. Safechuck is attempting to hold the Corporations liable as negligent per se under
a
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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
l.c

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
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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 the Court to evaluate whether their duties do in fact come within the scope of the statute (in effect
da
3 between 1988 and 1992) or who besides Michael regularly had direct contact and supervision

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

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

6 D. The Corporations Were Not Safechuck's Fiduciaries.
ily
7 As set out in the moving papers, there are no facts to support the contention that the

8 I ~ relationship, if any, between the Corporations and Safechuck was a fiduciary one. Safechuck's
a
a 9 opposition relies on the conclusory allegation of an employment relationship, but points to no case
a
m
W 10 that would suggest that such a relationship is fiduciary. The only case cited by Safechuck dealing
m o
A ~'
a o~~ 11 with a fiduciary relationship was a case involving an attorney and client, a paradigm example of a

~ ~oc~Do
o rn ~ 12 fiduciary relationship. Barbara A. v. John G., 145 Cal.App.3d 369, 383 (1983). The only other
ich
a m go
~ ~~m 13 case cited has nothing to do with fiduciary duties. It is a civil service case concerning an appeal by
0
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W ~ ~`; 14 a tenured teacher of her firing for misconduct. Board ofEducation v. Weiland, 179 Ca1.App.2d
~ mQo
~ is 808, 809-10 (1960).
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N ~'~~, 16 E. The Intentional Infliction Claim Fails.
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W~ORMJ I7 As explained in the moving papers, the intentional infliction claim fails for, among other
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~ 1O ~ reasons, the fact that it alleges that the Corporations' "outrageous conduct" was that they were
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19 "incapable of supervising and preventing ... Michael Jackson, from committing wrongful sexual

x Zo acts."(TAC ¶ 124.) Accardingly, the claim necessarily does not come within the scope of section
l.c

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
om

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