DEMURRER

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

da

3 Corporations"), herby demur to the Second Amended Complaint on the following grounds:
4

The First Cause of Action for "Intentional Infliction of Emotional Distress" fails as

5 ~ a matter oflaw for either or both of the following reasons:(a)the facts alleged in the Second

6 ~ Amended Complaint("SAC" or just "Complaint"), along with facts upon which the Court may

ily

7 ~ take judicial notice, fail to constitute a valid cause of action for "Intentional Infliction of

8 Emotional Distress" at all; and (b)the facts alleged in the Complaint, along with facts upon which

9 the Court may take judicial notice, do not sufficiently allege a timely cause of action for

'a
~
F
~
a

10 "Intentional Infliction of Emotional Distress"(or, stated differently, those facts affirmatively

o

A ~~~
o ~,

IZ

not limited to Code of Civil Procedure section 340.1, along with Code of Civil Procedure sections

ich

"
ULLOWI~

11 confirm that this cause of action is barred by the applicable statutes of limitations, including but

a i~go

~ ~M
w ~"
p
Ny
Q

x Qo
J

13 ~ 335.1, 340(3)(applicable to alleged tortious conduct prior to 2002), 352, and 366.2, and Probate
14 Code section 9351). No amendment can cure these defects.

~ ~U
I-~1 m Q p

2.
The Second Cause of Action for "Negligence" fails as a matter oflaw for either or
15
z Z ~
o'

~ ~~
16 both ofthe following reasons:(a)the facts alleged in the Complaint, along with facts upon which
Q
Ci0

~]

17

the Court may take judicial notice, fail to constitute a valid cause of action for "Negligence" at all;

1g

and(b)the facts alleged in the Complaint, along with facts upon which the Court may take judicial

19 notice, do not sufficiently allege a timely cause of action for "Negligence"(or, stated differently,
20 those facts affirmatively confirm that this cause of action is barred by the applicable statutes of

l.c

a
a
z
.
.
x

J
w

ae

3 0
'
~oNM

21 limitations, including but not limited to Code of Civil Procedure section 340.1, along with Code of
22 Civil Procedure sections 335.1, 340(3)(applicable to alleged tortious conduct prior to 2002), 352,
23 ~ and 366.2, and Probate Code section 9351). No amendment can cure these defects.
3.

om

24

The Third Cause of Action for "Negligent Supervision" fails as a matter of law for

25 ~ either or both of the following reasons:(a)the facts alleged in the Complaint, along with facts
26 upon which the Court may take judicial notice, fail to constitute a valid cause of action for
27 "Negligent Supervision" at all; and (b)the facts alleged in the Complaint, along with facts upon
28 which the Court may take judicial notice, do not sufficiently allege a timely cause of action for

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

1 "Negligent Supervision"(or, stated differently, those facts affirmatively confirm that this cause of
2 action is barred by the applicable statutes of limitations, including but not limited to Code of Civil

da

3 ~ Procedure section 340.1, along with Code of Civil Procedure sections 335.1, 340(3)(applicable to

4 ~ alleged tortious conduct prior to 2002), 352, and 366.2, and Probate Code section 9351). No
5 amendment can cure these defects.

4.

The Fourth Cause of Action for "Negligent Retention/Hiring" fails as a matter of

ily

7 ~ law for either or both ofthe following reasons:(a)the facts alleged in the Complaint, along with

8 facts upon which the Court may take judicial notice, fail to constitute a valid cause of action for

$3 ~~~,

9 "Negligent Retention/Hiring" at all; and (b)the facts alleged in the Complaint, along with facts

:
,
a
a
E
a
w
m
o
A o ~~

10 upon which the Court may take judicial notice, do not sufficiently allege a timely cause of action
11 for "Negligent Retention/Hiring"(or, stated differently, those facts affirmatively confirm that this
12 cause of action is barred by the applicable statutes of limitations, including but not limited to Code

ich

a i*>ao

~ ~~M
0
;LL

13 of Civil Procedure section 340.1, along with Code of Civil Procedure sections 335.1, 340(3)

~ ~ ~~
~ mQo
z ~ Z 00
~ =off
~ ~~CO

14 (applicable to alleged tortious conduct prior to 2002), 352, and 366.2, and Probate Code section

~ 00
a
a
z

17

5.

The Fifth Cause of Action for "Negligent Failure To Train, Warn or Educate" fails

as a matter oflaw for either or both ofthe following reasons:(a)the facts alleged in the

18 Complaint, along with facts upon which the Court may take judicial notice, fail to constitute a
19 valid cause of action for "Negligent Failure To Train, Warn or Educate" at all; and(b)the facts
20 alleged in the Complaint, along with facts upon which the Court may take judicial notice, do not

l.c

w
~

16

ae

H ~~o
~ o~M

15 9351). No amendment can cure these defects.

21 sufficiently allege a timely cause of action for "Negligent Failure To Train, Warn or Educate"(or,
22 stated differently, those facts affirmatively confirm that this cause of action is barred by the
23 applicable statutes of limitations, including but not limited to Code of Civil Procedure section

om

24 340.1, along with Code of Civil Procedure sections 335.1, 340(3)(applicable to alleged tortious
25 conduct prior to 2002), 352, and 366.2, and Probate Code section 9351). No amendment can cure
26 these defects.
27

6.

The Sixth Cause of Action for "Breach of Fiduciary Duty" fails as a matter oflaw

28 ~ for either or both ofthe following reasons:(a) the facts alleged in the Complaint, along with facts

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

1 upon which the Court may take judicial notice, fail to constitute a valid cause of action for
2 "Breach of Fiduciary Duty" at all; and(b)the facts alleged in the Complaint, along with facts upon

da

3 which the Court may take judicial notice, do not sufficiently allege a timely cause of action for
4 "Breach of Fiduciary Duty"(or, stated differently, those facts affirmatively confirm that this cause

5 of action is barred by the applicable statutes of limitations, including but not limited to Code of

6 Civil Procedure section 340.1, along with Code of Civil Procedure sections 335.1, 340(3)

ily

7 (applicable to alleged tortious conduct prior to 2002), 352, and 366.2, and Probate Code section

8 9351). No amendment can cure these defects.

9

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

a
a
N
N

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

A Q

o
~

11 DATED: October 24, 2016

Respectfully Submitted:

~ ~oc~o
o rn ~
~+mao
~ ~ co

12

KINSELLA WEITZMAN ISER KUMP &

ALDISERT LLP

13

M Q ~

w ~ J LL

~ oU.

~ mQ$

14
15

~ ~~~
N Q ~n

16

=~~~o
a ~Q
o ~~

17

J
W

a
a
~a

18

19

21
22
23

25
26
27
28.

om

24

Jonathan P. Steinsapir
Attorneys for Defendants
MJJ Productions, Inc. and MJJ Ventures, Inc.

l.c

20

By.

ae

Z
~ z '
~ =o

ich

a oo ~

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

1 III.

INTRODUCTION

Plaintiff James Safechuck seeks to recover money damages against the Estate of Michael

da

3 Jackson ("the Estate"), through this civil action against two corporations, Defendants MJJ
4 Productions, Inc., and MJJ Ventures, Inc. ("the Corporations"), both of which are specific assets

5 of the Estate generally. In May 2014, Safechuck petitioned to file a late creditor's claim against

6 ', ~ the Estate. That petition was dismissed with prejudice, and Safechuck did not seek appellate

ily

7 ~ review of that plainly correct order. Nonetheless, in an attempt to end-run the one year post-death

8 statute of limitations and the probate claims filing requirements, Safechuck artfully tries to re-

a
a

9 characterize the alleged criminal conduct ofMichael .Iackson personally, as the supposed

10 "negligence" of two Corporations that Michael himself owned and controlled. The allegations
11 make no sense, however. The causes of action fail on their own terms as the facts alleged do not

~3LL~~

12 support them; and they also fail in light of the requirements of Code of Civil Procedure section

~ ioao

] o~M

13 340.1(b)(2) for stating such claims after atwenty-five years lapse between the alleged bad acts and

~ Q o '~

~ ~ J LL

ich

~
a
m
.
o
A o~~

14 the filing of this suit for money damages. Accordingly, the Corporations respectfully request that

1
1 m Qp

z ~ Z 00

15 this action be brought to an end, and that this demurrer be sustained without leave to amend.

~ ~~C

16 II.

THE ALLEGATIONS OF THE SECOND AMENDED COMPLAINT

'~o~M

17

Michael Jackson died five years before Safechuck ever raised the accusations that are the

~~.1

1g

basis of this action. Sadly, he will never have the opportunity to answer them. The Estate and the

~ ~U

~ =o~

~ ~Zo
Q7

a
z
~~

J
W

ae

~ Ja

19 Corporations categorically and unequivocally deny the allegations and note that the operative

l.c

20 complaint is rife with easily proven falsehoods about any number of matters. That said, this is a
21 demurrer, and the Corporations recognize that the Court must treat the properly pleaded facts of
22 the Second Amended Complaint ("SAC" or just "Complaint") as undisputed for present purposes.
23

Safechuck alleges that Michael Jackson established MJJ Productions as "his primary

om

24 ~ business entity," and established MJJ Ventures "in part for the purpose of employing [Safechuck]
25 to work with [Michael] on various projects." (SAC 3-4.) Safechuck alleges that: Michael
26 Jackson was "the president/owner" of both entities, (ibid.); that both entities were his "alter egos
27 for the childhood sexual abuse alleged herein" (id. 5, 101); and that they were Michael
28 Jackson's "alternative personalit[ies]." (Id. 9.) In the required' Certificates of Merit submitted

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

when he filed this action, Safechuck alleged that "at all times relevant to the allegations,[Michael
2 Jackson] was the one hundred percent(100%)shareholder of[MJJ Productions and MJJ

da

3 Ventures]." Request for Judicial Notice ("RJN"), Ex. A and Ex. B(May 5, 2014, Declarations of
4 M. Marzano in Support of Certificates of Merit Against Does 2 and 3) at 11. See also Olinda
5 Jackson v. Doe, 192 Ca1.App.4th 742, 755(2011)("The certificates of merit described in section

6 340.1, subdivision (h) are `an aspect of the complaint."'). 2

ily
7

Safechuck was born on February 28, 1978, in California.(SAC 10.) He began working in

8 ~ television commercials in 1984 or 1985 (before he met Michael Jackson). In late 1986 or early

a
a
a
F
~

.
.

9 1987, Safechuck was hired to work on a Pepsi commercial that featured Michael Jackson.(Ibid.)

10 Safechuck and Michael apparently befriended each other at the time.(Id. 10, 12.) Sometime in
o

11 1987, after filming on the commercial concluded, Safechuck and his family were invited to

~3 ~~~

12 Michael's house "by Michael Jackson through Jolie Levine, Michael Jackson's then

~+mQo

~ ~~~

x Q o~
'
^ `~
"~ ~
~
-,~ ~ U
1-~-I m Q p

ich

Q o~~

13 secretary/personal assistant and an employee/managing agent of MJJ Productions and/or MJJ

14 Ventures."(Id. 13.) Safechuck and his parents visited Michael's home several times thereafter,
and Michael visited Safechuck and his parents at their home.(Id. 13-18.) Safechuck and his

15

`~~~
N J
In
~ ~z~

16 family viewed their time with Michael as "exciting as was the entire experience of being with a

~ o~~i

17 `star' with such a celebrity status as Michael Jackson."(Id. 18.) There are no allegations that the

~ 00
a
a
z

w
~

ae

00
Z
~ z ~
~ =o

18 Corporations had anything to do with these inherently personal visits, or that the visits had
19 anything to do with the business of the Corporations.

In 1988, Safechuck and his mother flew to Hawaii for a Pepsi convention.(SAC 19.)

l.c

20

21 Allegedly,"Michael Jackson and/or MJJ Productions and MJJ Ventures made all the arrangements
22 and paid all the expenses for Plaintiff and his mother to fly first class to Hawaii, travel by
23

om

24

2 The allegation that MJJ Ventures was established to "employ" Safechuck is absurd. MJJ
Ventures was established in February 1991 (RJN,Ex. C), and there are no factual allegations that
25
Safechuck was employed by it until 1994(although even these allegations are in the alternative
alleging that in 1994, he was "employed by Michael Jackson and/or MJJ Productions and MJJ
26
Ventures").(SAC 69.) Moreover, the Complaint is replete with allegations regarding MJJ
Ventures' alleged conduct with respect to Safechuck in the 1980s (id. 13, 19, 25-26, 30-31, 35),
27
but MJJ Ventures did not exist until February 1991.(RJN, Ex. C.)
28

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

limousine to the Kahala Hilton Hotel and for all of their accommodations and expenses during the
2 convention."(Ibid.) During the trip to Hawaii, Safechuck and Michael spent a lot of time together

da

3 and their friendship deepened.(Ibid.)

4

That year, Michael began teaching Safechuck how to dance.(Id. 23.) Safechuck and his

5 ~ mother also accompanied Michael to New York to attend a performance ofPhantom ofthe Opera,

6 ~ and "Jolie Levine again made all the arrangements through MJJ Productions and/or MJJ Ventures

ily

7 ~ for them to fly to New York and Michael Jackson and/or MJJ Productions/MJJ Ventures paid for

8 all oftheir expenses for the trip."(Id. 25.)In 1988, Safechuck and his parents also were flown to

a
a
a
N
~
m

9 Florida to visit Michael while he was rehearsing there. Safechuck stayed with Michael in one

10 house, and Safechuck's parents stayed in another.(Id. 26.)

o
~
`~
A
a o'
~

11

~3 ~~~;

12 ~ "Michael Jackson and MJJ Productions organized and paid" for their accommodations.(SAC

~ Q~m
0
~ aLL~
w ~"
~
-7~U
1-~-I m Q p

z ~ Z 00
~ =o~
Q~,

13 29.)It was on this tour that Safechuck alleges he was first molested:(Id. 31.) The molestation
14 allegedly continued periodically "through 1992."(Id. 36.)
15

Contrary to his prior complaints, Safechuck now loosely alleges that he was somehow

16 employed by both Corporations at "all relevant times" because the Corporations paid for travel,

ae

~~

ich

M ao

In June 1988, Safechuck and his family travelled with Michael on the Bad tour. Allegedly,

0
~ o~M

17

lodging and other expenses (despite the fact that MJJ Ventures did not even exist during most of

1g

the "relevant times").(Id. 11. See RJN,Ex. C.)However, Safechuck does not allege any facts to

CA

~]

19 support that he had any actual employment relationship with the Corporations during "all relevant
20 times." In fact, he clearly alleges that he was not hired by them until 1994. In that year,"Plaintiff

l.c

~a
z
.
,
x

J
w

21 worked as an intern shadow director" on Michael's HlStory promo video and either MJJ
22 Productions or Michael paid for his travel in connection therewith.(Id. 69.) In 1995, Safechuck
23 "was employed by Michael Jackson and/or MJJ Productions and MJJ Ventures as an

om

24 intern shadow director for [Michael's] `Earthsong' video."(Id. 70.)

25

Safechuck alleges that the Corporations owed him a duty of care in part based on

26 ~ boilerplate conclusions that Safechuck "was placed in [the] physical custody, control, and
27 dominion" of the Corporations, and that he stood "in loco parentis" with the Corporations.(SAC
28 1 13.) Again, the specific facts alleged are contrary to these legal conclusions. Safechuck's parents

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

1 ~ were with him during almost all times, including when he was on tour with Michael Jackson when
2 ~ the abuse allegedly began,(id. 28), and there are no facts alleged that Safechuck was ever in the

da

3 legal or physical custody of the Corporations as such (as opposed to Michael's personal custody).
In his Second Amended Complaint, Safechuck re-alleges his causes of action for general

5 negligenceincluding new allegations that the Corporations were mandated reportersand

6 breach of fiduciary duty, both of which are carried over from his prior complaints. He also alleges

ily

7 entirely new claims for negligent supervision, negligent retention/hiring, negligent failure to warn,

8 train or educate, and intentional infliction of emotional distress.(SAC 119-172.)

9 III.

10

.
~.

ARGUMENT

`
a~
N
~
W

The legal standard here is familiar. A demurrer shall be sustained if the pleading "does not

11 ~ state facts sufficient to constitute a cause of action." Code Civ. Proc. 430.10. The Court must

~3 ~~~

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

P.mao

~ ~~
0

ich

A o~~

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

x;LL

14

A.

15

Prior to turning to a discussion ofthe specific causes of action, it is necessary to first

~ ~Q~

16 ~ briefly address Code of Civil Procedure section 340.1 ("section 340.1"), and its relationship to the

0
~ o~M

17

C =o

~ 00
a
a
z

viability of the causes of action here. As the Court recognized in its order sustaining the last

18 demurrer, section 340.1 is a statute oflimitations. It does not itself create duties of care and is not
19 otherwise a basis for liability itself. At the same time, its provisions cannot be wholly divorced
20 from an assessment ofthe viability of the causes of action here. Safechuck turned 18 on February

l.c

W
~

The Relationship Between Section 340.1 and the Causes of Action.

ae

~ ~v`;
a
~ mQo
z ~z~

21 28, 1996.(SAC 10.) Therefore, absent section 340.1, all of his claims would have been time
22 barred as of February 28, 1997,"one year after [he] reached the age of majority, that is ... the age
23 of 19." Quarry v. Doe I, 53 Ca1.4th 945, 960-61 (2012).

om

24

The Corporations are "entities" and not "natural persons." Thus, section 340.1 may only

25 ~ apply to them under the "third party" provisions of subdivisions (a)(2) and (a)(3), i.e., the
26 Corporations cannot be liable as a "direct perpetrator" under subdivision (a)(1), including "as
27 ciders and abettors or as child procurers." Boy Scouts v. Superior Court, 206 Ca1.App.4th 428,445
28 (2012)(directing trial court to sustain demurrer without leave against Boy Scouts for lone cause of

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

action for intentional infliction of emotional distress). Claims against third parties are usually
2 ~ bared "on or after the plaintiff's 26th birthday." Code Civ. Proc. 340.1(b)(1). Safechuck

da

3 commenced this action long after his 26th birthday.(SAC 10.) Thus, in order for any of
4 Safechuck's causes of action to be viable, they must fall within section 340.1(b)(2),"a special

5 exception to the age 26 cutoff." Quarry, 53 Ca1.4th at 968(emphasis in original).

Section 340.1(b)(2) is directed "against a narrow category ofthird party defendants," id. at

ily

7 ~ 978, who have a right to control the perpetrator such that they could take "reasonable steps and[]

8 ~ implement reasonable safeguards to avoid acts of unlawful sexual conduct in the future by" the
9 perpetrator. Code Civ. Proc. 340.1(b)(2). Our Supreme Court has explained that subdivision

10 (b)(2)"requires the sexual conduct to have arisen through an exploitation of a relationship over

~3~~~

12 quoting Aaronoffv. Martinez- Senftner, 136 Ca1.App.4th 910,921 (2006)."The child must be

'a
~
N
~
w
m
o
A ~~
o ~

11 which the third party has some control."' Doe v. City ofLos Angeles,42 Ca1.4th 531, 544(2007),

ich

~ mao
.

~ ~~~

13 exposed to the perpetrator as an inherent part ofthe environment created by the relationship

~ v`;
~ mQ~

14 between the perpetrator and the third party." Aaronoff, 136 Ca1.App.4th at 921.

0
x a~~

This makes sense when one recalls that the Legislature enacted subdivision (b)(2) to

15

~ ~'~~
~ ~Z~

16 ~ extend the limitations period "in the wake of public exposure of sexual abuse by priests against

'
~oNM
O
]

a
a
a
z

17

ae

Z Q z ~
~ =a ~

children that had been condoned and covered up by the Catholic Church for so many years."

18 Quarry, 53 Ca1.4th at 988. Organizations like churches, schools and the Boy Scouts are in a
19 position to supervise or remove perpetrators if they learn of past abuse, because the organizations

l.c

20 have a right to control their pastors', teachers' or troop leaders' respective interactions with
21 children in their organizations. Likewise, children are "exposed to the perpetrator" pastors,
22 teachers, or troop leaders "as an inherent part of the environment created by the relationship
23 between the perpetrator and the third party" churches, schools, and youth organizations.

om

24

In light of the requirements of section 340.1, we not only discuss whether the causes of

25 action are viable as such, but whether they fall within the scope of the statute, where appropriate.
26
27
28

B.

The Second Through Fourth Claims Fail Because the Corporations Did Not
Hire, Supervise or Retain Michael Jackson, and Had No Right To Do So.

Safechuck's second through fourth causes of action against the Corporations are for
5
DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

negligence, negligent supervision, and negligent hiring/retention of Michael Jackson by the

2 Corporations. 3 In California, an "employer may be liable to a third person for the employer's

da

3 ~ negligence in hiring or retaining an employee who is incompetent or unfit." Roman Catholic

4 Bishop ofSan Diego v. Superior Court, 42 Ca1.App.4th 1556, 1564(1996)."To establish

5 negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor

6 had prior knowledge ofthe actor's propensity to do the bad act." Z. V. v. County ofRiverside, 238

ily

7 Ca1.App.4th 889, 902(2015)(emphasis added)."The tort has developed in California in factual

8 settings where the plaintiffls injury occurred in the workplace, or the contact between the plaintiff
9 and the employee was generated by the employment relationship." Mendoza v. City ofLos

10 Angeles,66 Ca1.App.4th 1333, 1339-40(1998).

o
o ~~
rn

11

12 ~ against the Corporations for the negligent supervision, hiring, or retention of Michael. Rather, the

~ ~go

~ ~~~
x Q o~
w ~"
~ ~U
H m QO

00

14 Safechuck admits that both Corporations were "established by Michael Jackson"MJJ

15 Productions was "established by Michael.Iackson as his primary business entity"; and MJJ
16 Ventures was "established by Michael.Iackson in part for the purpose of employing [Safechuck]."
17 (Id. 3- 4.) The Corporations never hired, retained, or supervised Michael Jackson at all,

18 particularly with respect to the conduct alleged here. The only potential allegation in the
19 Complaint relating to supervision and the like is that the Corporations' employee, Norma Staikos,
20 supposedly "exercised a significant degree of control over Michael Jackson's affairs in her

l.c

13 causes of action are foreclosed by numerous, affirmative allegations in the Complaint itself.

ae

z QZ00
~ =o~
~ ~~C
~ ~z~
~ o~M
J

Plaintiff has notand cannotallege the predicate facts necessary to support claims

ich

~3~-~~

a
a
z

'a~
F
~
m

21 capacity as the Executive Administrator of MJJ Productions."(SAC, 49.) However, this lone
22 allegation does not in any way suggest or imply that Norma Staikos or anyone else working for the
23 Corporations hired Michael Jackson, supervised him, retained him, or couldfire him in any way.

om

24 Quite the contrarySafechuck alleges that Michael Jacksonfired others for asking about his
25
26

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

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

friendship with Safechuck.(SAC 53.)

2

Safechuck alleges that Michael was "the president/owner" of both entities,(ibid.), and that

da

3 both entities were his "alter egos for the childhood sexual abuse alleged herein," and were
4 Michael's "alternative personalit[ies]."(SAC 5, 9, 101.) Accordingly, these Corporations had

5 no existence or purpose other than to conduct Michael's business affairs. Safechuck acknowledges

6 that "at all times relevant to the allegations,[Michael Jackson] was the one hundred per cent

ily

7 (100%)shareholder of[MJJ Productions and MJJ Ventures]."(RJN,Ex. A and Ex. B at 11.) 4

:
.
a
.a

On point is Coit Drapery Cleaners v. Sequoia Ins. Co., 14 Ca1.App.4th 1595 (1993).

9 ~ There, a woman sued a corporation, Coit, and its president and majority shareholder, Kearn,for

10'' Kearn's sexual assaults on her. Id. at 1601-02. When Coit tendered the claim to its insurer, it did
11 exactly what Safechuck is trying to do herere-characterize claims of intentional sexual

~3 ~ ~ ~;

12 misconduct by an individual, as claims for "negligent supervision" of the individual by a

a Mao

~ ~~m
w ~"

x Q o ,~
~~
-7~U~

p"'~mU O

ich

~
a
m
o
A o ~~

13 corporation that the individual controlled. The Court of Appeal held that such allegations made no
14 sense: "the trial court properly found that there was no way Coit, the corporate entity, could have
15 disciplined or supervised its president, chairman ofthe board, and major shareholder." Ibid.

E ~Q~

16

Even setting the above fundamental problems aside, the Complaint does not allege a nexus

0
'
~o~~

17

between the Corporations and Safechuck's alleged abuse to permit a negligent hiring, retention or

~ 00
a
z

18 supervision claim. As the Court of Appeal made clear in Roman Catholic Bishop ofSan Diego, a
19 negligent supervision claim requires that the Corporations "somehow placed [Safechuck] in
20 [Michael Jackson's] actual custody or control." 42 Cal.App.4th at 1567-68. "Failing to require a
21
22
23

25
26
27

4 That Michael Jackson was the sole shareholder of the Corporations means that, as a
matter oflaw, those Corporations could not hire, supervise, or terminate him. By law, he
necessarily exercised ultimate control over all corporate activities, including the appointment or
removal of all officers and directors. A California corporation is controlled by its board of
directors. Corp. Code 300(a). A corporation's "officers shall be chosen by the board and serve
at the pleasure of the board." Id. 312(b). When there is one shareholder, he controls the board
entirely. "Any or all ofthe directors may be removed without cause if the removal is approved by
the outstanding shares." Id. 303(a).The board is also elected "by unanimous written consent of
all shares." Id. 603(d).(Although unnecessary to show for purposes ofthis motion, but as
Safechuck knows from discovery, during all times relevant to this case, Michael Jackson as sole
shareholder exercised his right to act as the only director ofboth Corporations,see id. 212(a).)

om

24

l.c

W
~

ae

00
~ Z '
z
~ =o

28

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

connection between the employment and the injured party would result in the employer becoming
2 ~ an insurer ofthe safety of every person with whom its employees come into contact, regardless of

da

3 ~ their relationship to the employer." Mendoza,66 Ca1.App.4th at 1341.

4

The overarching relationship alleged in the Complaint is a personal relationship between

5 Michael and Safechuck, not a business relationship. Safechuck alleges that he met Michael

6 because Safechuck worked in commercials starting in 1984, and he was hired (not by the

ily

7 Corporations) in 1987 to be in a Pepsi commercial featuring Michael.(SAC 10.) Safechuck

8 alleges that he and Michael thereafter exchanged letters, visited each other's houses numerous

a
a
a

9 times, handed out money to the homeless, watched movies, talked on the phone, hung out, got to

10 know each other well, and became close friendsall before any alleged abuse occurred.(SAC

A o~~
~
a

11 12-27.) Safechuck alleges that the abuse began in June 1988 when he and his mother joined

~3 ~~~

12 Michael on the Bad Tour, well over a year after the personal relationship had developed between

M ao
~ ~c~

13

M Q ~

~ w ~ `i
W ~U

ich

~
a

Michael and Safechuck and his family.(SAC 31.) Although Safechuck alleges that Jolie Levine,

14 Michael's secretary and personal assistant, was employed by Michael and the Corporations in

I-`~i m Q p

1988 (including one that did not exist) and made travel arrangements for the Bad tour where the

15

~ J~~
~ ~Z~

16 abuse allegedly began, there are no allegations:(1)that Ms. Levine (Michael's secretary) knew of

^~o~m

17 any abuse to Safechuck or anybody else;(2)that Ms. Levine or any employee of the Corporations,

a
a
a
`z
~

18 as opposed to Michael and Safechuck's mother(who accompanied Safechuck on tour) had any

C~0

.
.

J
w

ae

z ~ Z o0
d =off

19 authority to determine whether Safechuck stayed with Michael or with Safechuck's mother; and

21

l.c

20 (3)that the Corporations were in any way necessary to the alleged abuse.

The nexus between the Corporations and Michael's alleged abuse of Safechuck is

22 extremely attenuated at best, and thatfleeting nexus did not create the opportunity for Michael to
23 allegedly molest Safechuck."An employer is not charged with guaranteeing the safety of anyone

om

24 his employee might incidentally meet while on the job against injuries inflicted independent ofthe
25 performance ofwork-relatedfunctions." Federico v. Superior Court, 59 Ca1.App.4th 1207, 1215
26 (1997)(emphasis added). Indeed, even if one engaged in the rather absurd fiction that the
27 Corporations could have declined to hire Michaeltheir sole shareholder for whom their
28 businesses dependedor could have fired or "supervised" him, this would have done nothing to

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

change Michael's access to Safechuck. The Complaint specifically alleges that the relationship
2 between Michael and Safechuck and his family began and grew as a result of Michael's personal

da

3 fame.(SAC 13-18.) The Corporations were irrelevant to how the relationship began and grew.
4 The relationship between Michael and Safechuck was not a result of a connection between

5 Michael and his corporations, as opposed to pastors', teachers' or scout masters' relationships to

6 children, which are a direct result of the relationship between the pastors, teachers, or scout

ily

7 masters and the church, school or troop. Doe,42 Ca1.4th at 544; Aaronoff, 136 Cal.App.4th at 921.

8 Accordingly, even if Plaintiff could get by the fact that the Corporations, by definition, never

a
"
a~
;~

9 hired, supervised, or retained Michael Jackson at all, the alleged connection between the

A ~~
0

11

~3~~~

12

~ Q~M
,~~'Q
, o~
c~ ~~`;
~ mQo
z ~ z 00

13

Safechuck has added a fifth cause of action for the Corporations' supposed "negligent

~ ~~~

16 167.) This claim, as well as the other negligence claims in the Second through Fourth causes of

10 Corporations and Michael's supposed abuse is far too attenuated to support these claims.
o

and Cannot Allege A Duty of Care and Its Breach

14 ~ failure to train, warn or educate" Safechuck "from the risk of sexual abuse, harassment and
15 molestation by Michael Jackson," their sole shareholder, president and alter ego.(SAC, 164-

d =off

.
, z0

ae

~ ~~~'

The Second Through Fifth Causes of Action Fail Because Safechuck Does Not

ich

G mQo

C.

~ o~m
J
O~

17 ~ action, fail as a matter of law because there is no special relationship alleged in the Complaint

a
a
a
z

18 between the Corporations and Plaintiff that could possibly give rise to such a legal duty.

19

Whether a duty of care exists "is properly challenged by demurrer and is a question oflaw

l.c

20 ~ for the court." Hegyes v. Unjian Enterprises, Inc., 234 Cal.App.3d 1103, 1111 (1991). Safechuck
21 has not, and cannot, explain why the Corporations, who had no relationship with him during the
22 time he was allegedly abused, are somehow liable for his alleged molestation by their owner.
23 Safechuck is essentially alleging that all corporations have a roving duty to police the alleged

om

24 criminal conduct oftheir employees and to protect anyone and everyone from such alleged
25 misconduct, regardless ofthe connection to the corporations. This is particularly implausible when
26 the alleged wrongdoer is "the president/owner" of the company. See Coit Drapery, 14 Cal.App.4th
27 at 1605 ("[T]he trial court properly found that there was no way Coit, the corporate entity, could
28 have disciplined or supervised its president, chairman of the board, and major shareholder.").
9
DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

1 Nothing in California law, or the law of any other common law jurisdiction, would support such
2 an invasive conception of corporations' duties to the general public.

da
3

In California, "[a]bsent a `special relationship,' one cannot be held liable for the mere

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

5 Betty M.,76 Ca1.App.4th 715,727(1999)."The basic idea is often referred to as the `no duty to

6 aid rule,' which remains a fundamental and long-standing rule of tort law." Ibid. "The rule is

a
a

ily

10 Society ofNew York, Inc., 235 Ca1.App.4th 1214, 1226(2015)."[W]here the issue is whether the

7 foundational in California tort jurisprudence. The tort law of California does not impose

8 mandatory Good Samaritanism." Ibid. "As a general rule, one owes no duty to control the conduct
9 of another, nor to warn those endangered by such conduct." Conti v. Watchtower Bible &Trade

.
.
o
A o ~~
~ o~~

11

~ ~iom
o rn ~

12 special relationship is dispositive" and requires no further analysis. Id. at 1228-29.

ich

~ mao

defendant had a duty to protect the plaintifffrom harm caused by a third party, the absence of a

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

~ ~M

13

W ~ ~~

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

x Q o,~

i"'~mU O

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

~ ~'~~
~ 3 zo
~ o~m

16

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

17

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

~ 00
a
a
n
n
z

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

19 at 1568. Similarly, a church also has no special relationship with its minor congregants to warn
20 them regarding potentially dangers posed by other church members. Conti, 235 Cal.App.4th at

l.c

W
~

ae

~z~
z
~ =o
'

21 1227-28. Further, the Court of Appeal has held that family members of a convicted, serial
22 pedophile had no special relationship with the pedophile's girlfriend, or her eight-year old son, to
23 warn them of possible harm when hosting the girlfriend and her son at their house. See Eric J., 76

om

24 Cal.App.4th at 727-30. This was despite the fact that the pedophile's parole officer had even
25 warned the family that the pedophile should not be in contact with children. Id. at 719.
26

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

27 ~ ~ entities. The Complaint does not come close to alleging that the Corporations were in any way
28 participating in the type of school, day care center, or other youth program that would give rise to
10
DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

a special relationship or in loco parentis requiring the Corporations to train, warn or educate
2 Safechuck regarding the risk of sexual abuse by Michael. 5 The Corporations were private

da

3 ~ corporations that were owned 100% by Michael Jackson and used by him to conduct his affairs.
4 ~ The alleged molestation in the Complaint supposedly took place in Michael's residences or during

5 ~ travel where Safechuck, and his family, were personal guests ofMichael. There is no allegation in

6 the Complaint that any of the alleged sexual abuse took place at the Corporations' offices, during a

ily

7 "youth program" organized by the Corporations, or while Safechuck was entrusted to the

8 Corporations' care (as opposed to Michael's personal care).

a
a

Safechuck's reliance in the Complaint on Pamela L. v. Farmer, 112 Cal.App.3d 206

10 (1980)(see SAC 113)is entirely misplaced because the alleged abuse in that case took place in

~
a
o

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

~ ~~~

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

^~i*~ao

~ ~m
0
x ~~
'
^r" ~U
~'"
0
~ mQo
z ~ Z 00
~ = o ~'
~ ~~~
~ D
a
a
z

W
~

13 Corporations to make travel arrangements do not support the allegation that Safechuck was under
14 the Corporations' supervision or custody.
15

Moreover, even if one were to find that the facts here were reminiscent ofPamela L. v.

16 Farmer, the negligence theory in that case would not come within the scope of section

ae

~ ~zo
'
~o~M

ich

~ ~
`~
A oo
a

17 340.1(b)(2). In Pamela L., the Court of Appeal reversed an order sustaining a demurrer to

18 negligence claims against a molester's wife for inviting young girls to her house to swim with her
19

21
22
23

25
26
27

5 The Complaint does contain boilerplate language that alleges in a conclusory fashion that
Defendants were entities "responsible for the custody, supervision, care, and dominion of minor
children."(SAC, 113.) However,there are nofacts alleged in the complaint to support this
general statement.(The in loco parentis allegations are particularly bizarre in light of the fact that
Safechuck's actual parent was travelling with him on the tour when the abuse allegedly began, and
was with him during almost all of his interactions with Michael Jackson.) In any event, there is
literally nothing in the Complaint to support these allegations that the Corporations took
Safechuck from his parents' care. At best, there are allegations that might potentially support an
allegation that Michael took Safechuck from his parents' care (and, really, there are no such
allegations of that either); there is nothing to support a contention that Michael's actions in taking
Safechuck from his parents' care were actions of the Corporations, such that he was acting for the
Corporations. For Safechuck to show that the Corporations are liable for Michael supposedly
taking Safechuck away from his parents, Safechuck would have to allege facts to support a finding
that Michael's acts in that regard were "causally attributable to his employment" by the
Corporations. Lisa M. v. Henry Mayo Newhall Mem'Z Hosp., 12 Cal. 4th 291, 301 (1995).

om

24

l.c

20

28

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

1 ~ husband when she was not there (despite knowing about her husband's criminal propensities). Id.
2 ~ at 209-10. That negligence theory might be viable generally in a case where the plaintiff filed

da

3 ~ before he was 26. But it would not come within the scope of section 340.1(b)(2), because a wife
4 ~ has no legal "right to control" her husband. She would not come within the "narrow category of

5 ' third party defendants" to which section 340.1(b)(2) is directed. Quarry, 53 Ca1.4th at 978. Indeed,

6 the Court of Appeal specifically held that a comparable theory in Joseph v. Johnson, 178

ily

7 Ca1.App.4th 1404(2009), was outside the scope ofsection 340.1(b)(2) in affirming a demurrer

8 without leave to amend. See id. at 1412(wife's negligent entrustment of nieces to alleged

a
'
`a
N
~

9 molester-husband not within scope of 340.1(b)(2), because wife had no "right to control"

10 husband's conduct)(emphasis added).

o

Under the facts alleged in the Complaint, the Corporations clearly did not have a duty to

11

~ ~~~;

12 warn, train or educate Safechuck that he may be molested by their "owner/president" and alter

~ mao

~ Q~~
"~, Q
o '~
W J lL

~. ~ Q
.
~~U
L

H m U O

13 ego. And even if such a duty existed, it would not come within the scope of section 340.1(b)(2).
14

00
~ Z '
z
~ =o

15

~ ~'~~

16

a
a
z

Adequately Plead Allegations Supporting A Negligence "Per Se" Claim

Safechuck has added a new negligence theory that the Corporations were mandated

ig

Reporting Act, Penal Code 11166 et seq.(SAC, 129-138.)"The negligence per se

19 presumption ... operates only to establish a lack of due care. `The presumption of negligence
20 created by Evidence Code section 669 concerns the standard of care, rather than the duty of

l.c

The Second Cause of Action Fails Because Safechuck Has Not And Cannot

17 reporters and failed to report Michael to the authorities under the Child Abuse and Neglect

Q~ ~ J
W

D.

ae

~ ~ao
~oa m

ich

A o~~

21 care."' Rice v. Ctr. Point, Inc., 154 Ca1.App.4th 949,958(2007)(emphasis in original). Thus, for
22 all the reasons set out above, there is no duty at all here, and the negligence per se presumption
23 adds nothing to that analysis. Ibid. (sustaining demurrer without leave to amend, despite colorable

om

24 negligence per se allegations because there was no duty in the first place)
25

But even setting that aside, the "mandatory reporter" allegations are meritless, because

26 ~ Safechuck has not alleged facts:(1)that would support a finding that the Corporations or any
27 specific employees of the Corporations were "mandated reporters" or "child care custodians"
28 under the statute as operative at the relevant time; and (2)that any employee ofthe Corporations

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

other than Michael directly supervised him.

2

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

da

3 ~ persons to report suspected child abuse by anyone connected to such persons or entities. As noted
4 , above, the cases are squarely to the contrary. Eric J., 76 Cal.App.4th at 727-30. Rather, Penal

5 . Code section 11165.7 specifically defines a "Mandated Reporter" to include certain employees of

6 ~ various types of public and private organizations such as teachers at public and private schools

ily

7 ~ who regularly provide services to children. The Corporations' employees do not fall within any of

8 the categories of individuals required to report under the statute. In any event, the Complaint does

a
a
a
;~

9 not identify which class ofemployees were supposedly mandatory reporters and why under the

10 version of the Penal Code in effect at the time 6,or provide a factual basis to support such
11 contentions. Nor does the Complaint allege what specific events gave rise to any ofthe

12 Corporations' employees' supposed obligation to report. Simply put, who was an alleged

w i*~ Qo

~ o Q ch

13

mandatory reporter (although the names need not be alleged, the types of work they did does need

M Q ~
~ w J LL

a ~~,
~ mQo

14 to be alleged), and what alleged facts did they know gave rise to a mandatory obligation to report?
15

ti ~J'~~
Q ~n

16

~ ~Zo
,~~

Corporations Were His Fiduciaries

The cause of action for breach offiduciary duty fails because Safechuck has not alleged

i8

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

19 the Corporations breached any such duties. The boilerplate conclusion that there was an in loco
20 parentis duty(SAC 169)are not supported by the actual allegations for reasons explained above.

l.c

The Sixth Cause of Action Fails Because Safechuck Cannot Allege that the

17

J
W

a
:
~
z

E.

ae

Z ~ Z o0
~ = rn

'
^oN~

ich

~3 ~~~

m
o
A o~~

21 And even if there is an in loco parentis duty, that means there is a special relationship for a
22 negligence-based duty of care; it does not create afiduciary duty.
23

"Before a person can be charged with a fiduciary obligation, he must either knowingly

om

24 ~ undertake to act on behalf and for the benefit of another, or must enter into a relationship which
25

6 This statute has been amended several times and is very different from the versions in
effect between 1988 and 1992. Safechuck cannot rely on the present version ofthe statute. Penal
statutes are rarely, if ever, retroactively applied. See U.S. Const., art. I, 10, cl. 1; Stogner v.
27
California, 539 U.S. 607, 610-11 (2003).
26

28

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

imposes that undertaking as a matter of law." City ofHope Nat. Med. Ctr. v. Genentech, Inc., 43
2 Ca1.4th 375, 386(2008)(brackets and internal quotation marks omitted). Here, there are simply no

da

3 allegations whatsoever to support a finding that the Corporations "knowingly undertook] to act on
4 behalf and for the benefit of[Safechuck], or" that the Corporations "enter[ed] in a relationship

5 ~ which imposes that undertaking as a matter of law." Ibid.

Safechuck alleges the following to support his claim that the Corporations were his

ily
7 fiduciaries:

~ ~~~,

12

11

(SAC 170.) But there are nofactual allegations to back up any of this boilerplate. The mere fact

~ i*~ao

~ ~~~
,~
~' ~
Qo
'~
J L.L

13

that Safechuck "trusted" the Corporations does not come close to supporting an allegation that

w ~Q
r-a ~U

14

z
~ z~
~ =o'

~s

0
~ mQo
~
`J~~~

they were his fiduciaries. See, e.g., City ofHope,43 Ca1.4th at 389("With respect to City of
Hope's claim that it reposed trust and confidence in Genentech, we note that `[e]very contract
16

ae

requires one party to repose an element oftrust and confidence in the other to perform."').

~ 3z~
'
~o~m
~
J

17

18

a
a
z

ich

10

a
m
a
o
,~ o~~

Plaintiff and his mother agreed to place their trust and confidence in Defendants
MJJ PRODUCTIONS, MJJ VENTURES and Does 6 through 50, inclusive, in the
expectation that Defendants would properly supervise Plaintiff, regulate his
activities and behavior, and ensure his safety. Further, Plaintiff and his family
agreed to this because they believed in the integrity of Defendants MJJ
PRODUCTIONS, MJJ VENTURES and Does 6 through 50,inclusive, and
therefore felt comfortable in entrusting the minor Plaintiff to the care and custody
of Defendants.

F.

The First Cause of Action Fails Because Safechuck Has Not Adequately Pled
Facts Supporting a Claim for Intentional Infliction of Emotional Distress

19

In order to state a cause of action for intentional infliction of emotional distress, Safechuck
20

l.c

"
'

must allege the following: "(1)extreme and outrageous conduct by the defendant with the
21

intention of causing, or reckless disregard ofthe probability of causing, emotional distress;(2)the

22

plaintiff's suffering severe or extreme emotional distress; and(3)actual and proximate causation
23

om

ofthe emotional distress by the defendant's outrageous conduct." Davidson v. City of

24
Westminster, 32 Cal.3d 197, 209(1982).
25

Safechuck's intentional infliction allegations claim that a reasonable person would not
26

expect "putting Michael Jackson in positions of authority at MJJ Productions,[and] MJJ

27

Ventures."(SAC 121.) But, as explained above, the Complaint does not allege that the
28

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT

1 Corporations did put Michael in any "positions of authority." Rather, the Complaint alleges the
2 ~ opposite, i.e., that both Corporations were "established by Michael Jackson."(Id. 3-4.)

da

3 ~ Safechuck furthers alleges that a "reasonable person would not expect or tolerate Defendants to be

4 ~ incapable of supervising and preventing employees of Defendants, including Michael Jackson,

5 ~ from committing wrongful sexual acts."(Id. 122.) This allegation, however, admits that the

6 ~ Corporations were "incapable of supervising and preventing employees of Defendants, including

ily

7 Michael Jackson, from committing wrongful sexual acts." After all, that is the supposedly

8 "outrageous conduct" here, that the Corporations were "incapable" of supervision. Accordingly,

.
a
'a~

9 the claim necessarily does not come within the scope of section 340.1(b)(2). That section requires

rn

10 that the Corporations "could have employed safeguards to prevent the sexual assault ... [and]
11 requires the sexual conduct to have arisen through an exploitation of a relationship over which [the
12 Corporations] have]some control." Doe,42 Ca1.4th at 544.

~ Mgo

ich

~3~~~

m
o
a o~

To the extent that Safechuck is really alleging that the Corporations' "outrageous" conduct

~ ~m

13

~ ~`;
~ mQo
o0
z Q z rn

14 was the alleged molestation by Michael himself, or the alleged "procurement" by the

x Q o ,~

15 Corporations, the claims fail as a matter of law. Those are claims for direct perpetrator liability

~ =o~

Q~

00

J
w

0
'
~oNm
~

16 under section 340.1(a)(1), and are accordingly time-barred. Boy Scouts, 206 Cal.App.4th at 442,

ae

~~

17

445 (claim for intentional infliction of emotional distress because Boy Scouts were alleged "child

Ig

procurers" cannot be stated against corporations; that is a claim for direct perpetrator liability

19 under section 340.1(a)(1) and corporations cannot be liable thereunder); Aaronoff, 136

20 Ca1.App.4th at 920-21 (it would be "nonsensical" to apply sections 340.1(a)(2) and (a)(3)to

l.c

,
~
.
,
z

21 conduct covered by direct perpetrators under section 340.1(a)(1)).

22 DATED: October 24, 2016

KINSELLA WEITZMAN ISER KUMP &

ALDISERT LLP

23

Zs
26
27

Bye

om

24

....~`~ ~

c~

Jonathan P. Steinsapiir
Attorneys for Defendants
MJJ Productions, Inc. and MJJ Ventures, Inc.

28

DEMURRER TO JAMES SAFECHUCK'S SECOND AMENDED COMPLAINT