Preview
Electronically FILED by
Superior Court of California,
County of Los Angeles
9/12/2023 5:34 PM
David W. Slayton,
PANISH | SHEA | BOYLE | RAVIPUDI LLP Executive Officer/Clerk of Court,
BRIAN J. PANISH, State Bar No. 116060 By E. Thomas, Deputy Clerk
panish@psbr.law
RAHUL RAVIPUDL, State Bar No. 204519
rravipudi@psbr.law
JESSE CREED, State Bar No. 272595
jcreed@psbr.law
11111 Santa Monica Boulevard, Suite 700
Los Angeles, CA 90025
Tel: (310) 477-1700
Fax: (310) 477-1699
MORGAN & MORGAN
EMILY C. JEFFCOTT (admitted pro hac vice)
ejeffcott@forthepeople.com
633 West Fifth Street, Suite 2652
Los Angeles, CA 90071
Tel: (213) 787-8590
10 Fax: (213) 418-3983
11 BEASLEY ALLEN
JOSEPH VANZANDT (admitted pro hac vice)
12 joseph.vanzandt@beasleyallen.com
234 Commerce Street
13 Montgomery, AL 36103
Tel: (334) 269-2343
14
Co-Lead and Co-Liaison Counsel
for Plaintiffs
15
16 SUPERIOR COURT OF THE STATE OF CALIFORNIA
17 FOR THE COUNTY OF LOS ANGELES — SPRING STREET COURTHOUSE
18 COORDINATION PROCEEDING JUDICIAL COUNCIL COORDINATION
SPECIAL TITLE [RULE 3.400] PROCEEDING NO. 5255
19
SOCIAL MEDIA CASES Lead Case No. For Filing Purposes:
20
22STCV21355
21
THIS DOCUMENT RELATES TO: Assignedfor All Purposes to the
22 Hon. Carolyn B. Kuhl, Department SSC-12
(Christina Arlington Smith, et al. v. TikTok
23
Inc., et al., Case No. 22STCV21355) PLAINTIFFS’ NOTICE OF
24 SUPPLEMENTAL AUTHORITY
(M.C. ex rel. Cramblet v. Meta Platforms,
25 Inc., et al., Case No. 22STCV40543) Date: September 13, 2023
(JP., et al. v. Meta Platforms, Inc., et al., Time: 1:30 p.m.
26 Case No. 22STCV26778) Dept: SSC-12
(J.S., et al. v. Meta Platforms, Inc., et al., Case
27
No. CV2022-1472)
28
PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY
Plaintiffs hereby notify the Court of Safechuck v. MJJ Productions, Inc., 94 Cal. App. Sth
675 (Aug. 18, 2023), as supplemental authority in support of their Opposition to Defendants’
Demurrer to Master Complaint and Plaintiffs’ Short-Form Complaints. A copy of the Safechuck
opinion is attached hereto as Exhibit A.
This authority supplements Plaintiffs’ analysis and argument relating to California’s two-
part duty analysis beginning with the statutory duty imposed by Civil Code § 1714(a) as establishing
the “default rule that each person has a duty to exercise, in his or her activities, reasonable care for
the safety of others.” See Plaintiffs’ Response, at pp. 45-53.
Plaintiffs specifically direct the Court’s attention to the following portions of the Safechuck
10 opinion:
11 California applies the two-step duty analysis as outlined in Brown v. USA
12 Taekwondo, 11 Cal. 5th 204, 209 (2021). See Plaintiffs’ Response, pp. 45-46.
13 California Civil Code § 1714 “establishes the default rule that each person has a duty
14 to exercise, in his or her activities, reasonable care for the safety of others.”
15 Safechuck, 94 Cal. App. 5th at 691 (internal quotation marks omitted). See Plaintiffs”
16 Response, pp. 45-46.
17 Safechuck recognizes “special circumstances” that exist when children are involved
18 who are “by definition, vulnerable and dependent[.]” Safechuck, 94 Cal. App. 5th at
19 692-4. See Plaintiffs’ Response, pp. 50-51.
20 Safechuck recognizes that the “typical setting for the recognition of a special
21 relationship is where ‘the plaintiff is particularly vulnerable and dependent on the
22 defendant who, correspondingly, has some control over the plaintiff's welfare. a
23 Safechuck, 94 Cal. App. Sth at 692 (quoting Brown, 11 Cal. 5th at 220-21). See
24 Plaintiffs’ Response, pp. 51-52.
25 //1
26 //1
27 //1
28 //1
1
PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY
1 DATED: September 12, 2023 PANISH | SHEA | BOYLE | RAVIPUDI LLP
2
Brian J. Panis!
Rahul Ravipudi
Jesse Creed
11111 Santa Monica Boulevard, Suite 700
Los Angeles, CA 90025
Tel.: (310) 477-1700
panish@psbr.law
rravipudi@psbr.law
jereed@psbr.law
Emily Jeffcott
10 MORGAN & MORGAN
11 633 West Fifth Street, Suite 2652
Los Angeles, CA 90071
12 Tel.: 213-787-8590
Fax: 213-418-3983
13 ejeffcott@forthepeople.com
14
Joseph G. VanZandt
15 BEASLEY ALLEN CROW METHVIN PORTIS &
MILES, LLC
16 234 Commerce Street
Montgomery, AL 36103
17 Tel.: 334-269-2343
Joseph. VanZandt@BeasleyAllen.com
18
19 Paul R. Kiesel
Mariana A. McConnell
20 Cherisse H. Cleofe
KIESEL LAW LLP
21 8648 Wilshire Boulevard
Beverly Hills, CA 90211
22
Tel.: 310-854-4444
23 Fax: 310-854-0812
kiesel@kiesel.law
24 meconnell@kiesel.law
cleofe@kiesel.law
25
Christopher L. Ayers
26
SEEGER WEISS LLP
27 55 Challenger Road
Ridgefield Park, NJ 07660
28 Tel.: 973-639-9100
2
PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY
Fax: 973-679-8656
cayers@seegerweiss.com
Matthew Bergman
Laura Marquez-Garrett
SOCIAL MEDIA VICTIMS LAW CENTER
1390 Market Street, Suite 200
San Francisco, CA 94102
Tel.: 206-741-4862
matt@socialmediavictims.org
laura@socialmediavictims.org
Brooks Cutter
CUTTER LAW P.C.
401 Watt Avenue
Sacramento, CA 95864
10 Tel.: 916-290-9400
11 Fax: 916-588-9330
bcutter@cutterlaw.com
12
Thomas P. Cartmell
13 WAGSTAFF & CARTMELL LLP
4740 Grand Avenue Suite 300
14
Kansas City, MO 64112
15 Tel.: 816-701-1100
teartmell@wellp.com
16
Amy Eskin
17 SCHNEIDER WALLACE COTTRELL KONECKY
LLP
18
2000 Powell Street Suite 1400
19 Emeryville, CA 94608
Tel.: 415-421-7100
20 Fax: 415-421-7105
aeskin@schneiderwallace.com
21
Kirk Goza
22
GOZA & HONNOLD, LLC
23 9500 Nall Avenue, Suite 400
Overland Park, KS 66207
24 Tel.: 913-386-3547
Fax: 913-839-0567
25 kgoza@gohonlaw.com
26
Rachel Lanier
27 THE LANIER LAW FIRM, P.C.
2829 Townsgate Road, Suite 100
28 Westlake Village, CA 91361
3
PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY
Tel.: 713-659-5200
Rachel.Lanier@LanierLawFirm.com
Sin-Ting Mary Liu
AYLSTOCK, WITKIN, KREIS & OVERHOLTZ,
PLLC
17 E Main St #200
Pensacola, FL 32502
Tel.: 850-202-1010
mliu@awkolaw.com
Marc J. Mandich
SOUTHERN MED LAW
2762 B M Montgomery Street, Suite 101
Homewood, AL 35209
Tel.: 205-564-2741
10 Fax: 205-649-6346
11 marc@southernmedlaw.com
12 Kelly McNabb
LIEFF CABRASER HEIMANN & BERNSTEIN,
13 LLP
275 Battery Street, 29th Floor
14
San Francisco, CA 94111-3339
15 Tel.: 415-956-1000
kmenabb@Ichb.com
16
Jonathan D. Orent
17 MOTLEY RICE LLC
40 Westminster St., 5th FI.
18
Providence RI 02903
19 Tel.: 401-457-7723
Fax: 401-457-7708
20 jorent@motleyrice.com
21 Ruth Rizkalla
THE CARLSON LAW FIRM, PC
22
1500 Rosecrans Avenue, Suite 500
23 Manhattan Beach, CA 90266
Tel.: 254-526-5688
24 Fax: 254-526-8204
rrizkalla@carlsonattorneys.com
25
Frederick Schenk
26
CASEY GERRY SCHENK FRANCAVILLA
27 BLATT & PENFIELD, LLP
110 Laurel Street
28 San Diego, CA 92101-1486
4
PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY
Tel.: 619-238-1811
Fax: 619-544-9232
Fschenk@cglaw.com
Co-Lead, Co-Liaison, and Leadership Counsel for
Plaintiffs
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY
EXHIBIT A
Safechuck v. MJJ Productions, Inc.
Court of Appeal of California, Second Appellate District, Division Eight
August 18, 2023, Opinion Filed
B309450, B308602, B313436
Reporter
94 Cal. App. 5th 675 *; 2023 Cal. App. LEXIS 628 **; 2023 WL 5317832
JAMES SAFECHUCK, Plaintiff and Appellant, v. MJJ PRODUCTIONS, INC., et al., Defendants and
Respondents. WADE ROBSON, Plaintiff and Appellant, v. MJJ PRODUCTIONS, INC., et al.,
Defendants and Respondents; LILY CHANDLER et al., Respondents.
Prior History: [**1] APPEALS from judgments and an order of the Superior Court of Los Angeles
County, No. BC545264, No. BC508502, Mark A. Young, Judge.
Safechuck v. MJJ Productions, Inc., 43 Cal. App. 5th 1094, 257 Cal. Rptr. 3d 229, 2020 Cal. App.
LEXIS 3, 2020 WL 38357 (Jan. 3, 2020)
Disposition: Judgments reversed and remanded; sanctions order affirmed.
Counsel: Manly, Stewart & Finaldi, John C. Manly, Vince W. Finaldi, Alexander E. Cunny; Esner,
Chang, Boyer & Murphy, Holly N. Boyer and Kevin K. Nguyen for Plaintiffs and Appellants.
Kinsella Weitzman Iser Kump Holley, Kinsella Holley Iser Kump Steinsapir, Jonathan P. Steinsapir,
Suann C. Maclsaac, Aaron C. Liskin, Katherine T. Kleindienst; Greines, Martin, Stein & Richland and
Alana H. Rotter for Defendants and Respondents.
Tharpe & Howell and Eric B. Kunkel for Respondents Lily Chandler and Tabitha Rose Marks.
Judges: Opinion by Grimes, Acting P. J., with Wiley and Viramontes, JJ., concurring.
Opinion by: Grimes, Acting P. J.
Opinion
[*680]
GRIMES, Acting P. J.—
SUMMARY
The principal issue in these cases is whether two corporations, wholly owned by the late entertainer
Michael Jackson, had a legal duty to protect plaintiffs from sexual abuse Jackson is alleged to have
inflicted on them for many years while they were children. The corporations say they had no duty to
protect plaintiffs from Jackson because of their corporate structure, that is, “because [**2] they had no
Page 2 of 20
94 Cal. App. 5th 675, *680; 2023 Cal. App. LEXIS 628, **2
ability to control Jackson—their sole owner—or his interactions with [plaintiffs]. Parties cannot be liable
for neglecting to exercise powers they simply do not have.”
(1) Following the guidance in Brown v. USA Taekwondo (2021) 11 Cal.5th 204 [276 Cal. Rptr. 3d 434,
483 P.3d 159] (Brown), we conclude a corporation that facilitates the sexual abuse of children by one of
its employees is not excused from an affirmative duty to protect those children merely because it is solely
owned by the perpetrator of the abuse. The corporations say these are “idiosyncratic circumstances,” and
perhaps they are. There is certainly no comparable case law to recite. But it would be perverse to find no
duty based on the corporate defendant having only one shareholder. And so we reverse the judgments
entered for the corporations.
One of the plaintiffs also appeals a sanctions order and discovery rulings granting protective orders to
nonparty witnesses. We find no abuse of discretion in those rulings.
PROCEDURAL BACKGROUND
James Safechuck filed his original complaint against MJJ Productions, Inc., and MJJ Ventures, Inc.
(defendants or the corporations), in May 2014, when he was 36 years old. Wade Robson filed his
complaint in May 2013, at the age of 30. Their lawsuits were dismissed [**3] on demurrer and summary
judgment, respectively, based on the statute of limitations, but legislative changes while their appeals
were pending made their lawsuits timely, and the cases were returned to the trial court. (Safechuck _v.
MJJ Productions, Inc. (2020) 43 Cal.App.Sth 1094 [257 Cal. Rptr. 3d 229].)
The trial court sustained defendants' demurrer without leave to amend in Safechuck's case and granted
summary judgment to defendants in Robson's case. Both plaintiffs appealed, and Robson also appealed a
discovery sanctions order against his counsel. The parties requested we consolidate the two [*681] cases
for oral argument. We consolidated the cases, as both cases present the same principal issue concerning
the existence of a duty owed by the corporations to plaintiffs.
FACTS
1. The Safechuck Case
We describe the facts as alleged in the operative complaint since the trial court sustained a demurrer
without leave to amend.
a. The abuse allegations
In late 1986 or early 1987, when he was nine years old, plaintiff Safechuck was hired to work on a Pepsi
commercial that featured Michael Jackson. Several months later, Jackson wrote plaintiff a letter on one of
defendants’ stationery. After that, plaintiff and his family were invited to dinner at Jackson's home on
Hayvenhurst Avenue [**4] in Encino. The invitation was made by Jackson through Jolie Levine. Ms.
Levine was then Jackson's secretary and personal assistant “and an employee/managing agent” of one of
the defendants. During the visit, when they were alone, Jackson gave plaintiff presents (a globe and $700).
After this dinner, Jackson and Safechuck spoke frequently on the telephone and visited each other's
homes. Jackson became like a part of plaintiff's family.
Page 3 of 20
94 Cal. App. 5th 675, *681; 2023 Cal. App. LEXIS 628, **4
In 1988, when plaintiff was 10 years old, Jackson invited him to a Pepsi convention in Hawaii featuring
the commercial they had appeared in, and the two appeared on stage together. Jackson and defendants
made all the arrangements and paid all the expenses for the trip for plaintiff and his mother. During this
trip, Jackson asked plaintiffto sleep over in his room, but plaintiff's mother would not allow it.
In March 1988, plaintiff and his mother went to New York to attend a Broadway show with Jackson. Ms.
Levine again made all the arrangements through defendants, and Jackson and/or defendants paid all
expenses for the trip. Jackson and defendants also arranged for plaintiff and his parents to travel to
Pensacola, Florida, and stay in houses Jackson and defendants [**5] had rented there. Plaintiff stayed
with Jackson, and his parents stayed in one of the other houses.
In 1988, plaintiff and his mother spent six months with Jackson on tour. Jackson and MJJ Productions
made all the arrangements and paid all the [*682] expenses, with Ms. Levine as the “point person.” The
first incident of sexual abuse occurred in June 1988, during this six-month tour. In Jackson's hotel room in
Paris, Jackson told plaintiff he “was going to change Plaintiff's life by showing him how to masturbate.”
Jackson demonstrated on himself, and then made plaintiff try. Jackson later told plaintiff other sexual acts
were a way of “showing love.” Plaintiff began sleeping in Jackson's bed regularly during the rest of the
tour, and the abuse continued.!
From 1988 through 1992, Jackson abused plaintiff hundreds of times in various locations. Jackson
performed a “marriage” with plaintiff with a ring and a signed document to pretend they got married. He
also trained plaintiff to exchange “declarations of love” with him, and plaintiff developed a significant
emotional attachment to Jackson.
Whenever plaintiff visited Jackson's Neverland Ranch, he slept in Jackson's bedroom. They would “mess
up” [**6] another bedroom to make it seem as if plaintiff had slept there. Jackson also installed chimes—
and later video cameras—in the hallway to his bedroom to be warned when people approached. Jackson
had a secret closet in his bedroom that required a passcode, and he would often abuse plaintiff there. He
ran “drills” with plaintiff so plaintiff could practice dressing quickly and running away quietly.
Jackson repeatedly instructed plaintiff to deny everything if asked about the abuse, and told plaintiff
not to
tell anyone about their relationship. Jackson told plaintiff he “did not have to answer questions about what
they did”; he should “be vague and not give real answers to questions”; and if police ever told him
Jackson confessed, they were lying and trying to trick him. Jackson repeatedly told plaintiff their
participation in sexual acts was plaintiff's idea, and nothing would happen to him if he lied to other
people. Jackson reminded plaintiff on a constant basis that if anyone discovered the abuse, their “futures
would be over.”
Mariano Quindoy was the estate manager at the Neverland Ranch and an employee of defendant MJJ
Productions from May 1989 to April 1990. He stated he had witnessed [**7] several incidents of
suspicious activity at the Neverland Ranch, including finding Jackson's and plaintiffs underwear
lying [*683] next to Jackson's bed. He also saw Jackson put his hand down the front of plaintiff's shorts
1 Jackson kissed plaintiff's genitals and had plaintiff rub and suck Jackson's nipples as he masturbated. Jackson “liked to have Plaintiff bend
over on all fours and then [Jackson] would grab Plaintiff's butt cheeks and spread them open with one hand, and masturbate himself with the
other. [Jackson] referred to this activity as ‘selling me some,’ because [he] would give Plaintiff jewelry after he did this, as a ‘reward.””
Jackson also taught plaintiff code words so others would not know they were talking about their sexual activities, and would scratch the
inside of plaintiff's hand as a sexual cue. On two occasions, Jackson inserted his finger into plaintiff's anus.
Page 4 of 20
94 Cal. App. 5th 675, *683; 2023 Cal. App. LEXIS 628, **7
while the two were in the Jacuzzi. Mr. Quindoy heard gossip among the Neverland staff that Jackson was
“having an affair” with plaintiff and they were sleeping together. He also stated Norma Staikos told him
and his wife never to leave children alone with Jackson. (Ms. Staikos was executive director of Mr.
Quindoy's employer, MJJ Productions.)
Blanca Francia was Jackson's personal maid and an MJJ Productions employee. She witnessed Ms.
Staikos arrange meetings between Jackson and children and their families. She stated Ms. Staikos would
arrange for a limousine to pick up plaintiff and other children and take them to see Jackson at Jackson's
condominium in Century City.
Orietta Murdock was an assistant to Ms. Staikos (and to Ms. Staikos's predecessor). Ms. Murdock heard
about Jackson's reputation regarding children soon after she started working for MJJ Productions in
September 1989. Ms. Murdock stated that, while Ms. Staikos was giving her a tour of Neverland, Ms.
Staikos [**8] told Ms. Murdock never to leave her son alone with Jackson.
Plaintiff's complaint also describes “a transition period” after plaintiff turned 12 years old, during which
Jackson began to focus his attention on a younger boy and began “to prepare Plaintiff for separation.”
When plaintiff fully reached puberty, the sexual abuse finally stopped. The complaint goes on to allege
that Jackson remained active in plaintiff's life, with the relationship tapering off after plaintiff reached the
age of 17; and describes various events and plaintiff's life and feelings up to and after Jackson's death.
b. The allegations of defendants' involvement in the sexual abuse
The complaint alleges Jackson formed MJJ Productions “as his primary business entity” that held most or
all of the copyrights to Jackson's music and videos. Jackson formed MJJ Ventures “in part for the purpose
of employing Plaintiff to work with [Jackson] on various projects.” Jackson was “the president/owner and
a representative/agent” of both defendants.
Plaintiff alleges Jackson acted “with the full knowledge, consent and cooperation” of defendants, “who
were his co-conspirators, collaborators, facilitators and alter egos for the childhood [**9] sexual abuse
alleged.” Defendants were held out as businesses dedicated to creating and distributing Jackson's
multimedia entertainment, but “actually served dual purposes. The thinly-veiled, covert second purpose
was to operate as a child sexual abuse operation, specifically designed to locate, attract, lure and
seduce child sexual abuse victims. In fact, under this dual purpose, [Jackson] and a select few [*684]
managing agents/employees of [defendants'] inner circle designed, developed and operated what is likely
the most sophisticated public child sexual abuse procurement and facilitation organization the world has
known.”
Ms. Staikos “exercised a significant degree of control over [Jackson's] affairs in her capacity as the
Executive Director” of MJJ Productions. For example, when Ms. Staikos denied a request for a raise by
Ms. Murdock, and Ms. Murdock appealed to Jackson, Ms. Staikos terminated Ms. Murdock for doing so.
Jackson later admitted “that Ms. Staikos had forced [him] to agree to the termination against his wishes.”
Defendants knew or had reason to know that Jackson “had engaged in unlawful sexually-related conduct
with minors in the past, and/or was continuing to engage [**10] in such conduct with Plaintiff, and failed
to take reasonable steps, and implement reasonable safeguards, to avoid” such conduct by Jackson in the
future.
Page 5 of 20
94 Cal. App. Sth 675, “684; 2023 Cal. App. LEXIS 628, **10
The complaint alleges defendants concealed the facts concerning Jackson's sexual misconduct from
plaintiff, his parents, law enforcement authorities and others, and implemented measures making his
conduct harder to detect, including “[p]lacing [Jackson] in a separate and secluded environment ... in
charge of young boys”; allowing him to come into contact with minors without adequate supervision; and
holding him out to plaintiff, his parents and others “as being in good standing and trustworthy.”
Plaintiff and other minors “were regularly trained and mentored by” Jackson, an agent of defendants, “and
were cared for by staff of [defendants] who were knowingly placed in contact with these minors and hired
to provide care for these minors, including but not limited to: cleaning services, food preparation, maid
services, transportation services, and scheduling services.”
The complaint alleges defendant entities were “created to, at least in part, provide for the welfare and
safety of minor children.” Their boards of directors and officers [**11] “conferred substantial actual and
ostensible authority” on Jackson, permitting him to have solitary contact with plaintiff, allowing plaintiff
and other minors to sleep in his bed, allowing Jackson to train and coach minors, travel with them and
“have authority over those minors as an employment superior and supervisor.” Defendants “employed
individuals who were responsible for supervising [Jackson] and the minors in his charge.”
Specifically, during the time plaintiff was being abused, Ms. Staikos and Ms. Levine “were placed in a
role within [defendants] whereby the safety, welfare, and well-being of all minor children entrusted to
Defendants was Ms. Staikos and Ms. Levine's primary responsibility.” Ms. Staikos and [*685] Ms.
Levine “had the authority and ability to limit [Jackson's] access to minor children” by requiring parents to
be present when children were with Jackson; reporting Jackson to law enforcement; enforcing rules
requiring other employees to report Jackson to law enforcement if they suspected abuse; and
implementing procedures limiting Jackson's access to children. Plaintiff's parents “were assured by Ms.
Staikos and Ms. Levine, that their children would be safe, taken care [**12] of, and cared for, while they
were in contact with [Jackson].”
ce. The demurrer
Based on the allegations just recited, the operative third amended complaint alleged six causes of action:
intentional infliction of emotional distress; negligence; negligent supervision; negligent retention/hiring;
negligent failure to warn, train or educate; and breach of fiduciary duty.
Defendants demurred to the operative complaint in September 2020. Defendants' principal argument was
that plaintiff's theories of liability all “hinge on the proposition that the Corporations had the ability to
control Jackson—their owner, president, and sole shareholder—and prevent the alleged molestation.”
Defendants argued Jackson as sole shareholder exercised complete control over defendants, not the
reverse. Defendants “therefore had no ability—and thus no legal duty—to control or supervise Jackson
and somehow protect [plaintiff] from him.”
d. The trial court's ruling
The trial court sustained defendants’ demurrer without leave to amend.
As to the negligence causes of action, the court concluded that plaintiff did not sufficiently allege a special
relationship between himself and defendants, and “[e]ven if there was a special [**13] relationship, a
legal duty only exists where a defendant has an actual ability to control the person who needs to be
controlled.” As the sole shareholder of defendants, “Jackson had absolute legal control over the entities
Page 6 of 20
94 Cal. App. Sth 675, “685; 2023 Cal. App. LEXIS 628, **13
and everyone employed by them.” “Since Defendants have no ability to control Jackson regarding his
alleged sexual abuse of Plaintiff, there is no legal duty of care between the parties and the negligence
causes of action fail as a matter of law.”
The court found the negligence claims failed for additional reasons. The court also found the breach of
fiduciary duty claim failed because defendants owed no fiduciary duty as plaintiffs employers, and the
intentional infliction of emotional distress claim failed because corporations cannot be direct perpetrators
of sex abuse.
[*686]
The court entered judgment for defendants and against Safechuck on October 27, 2020, and Safechuck
filed a timely notice of appeal.?
2. The Robson Case
Robson's operative complaint alleged the same causes of action as the Safechuck complaint.
Defendants sought summary judgment in December 2020. They contended all the claims failed for lack of
causation; the negligence claims failed because defendants had [**14] no duty of care to Robson; the
emotional distress claim failed because defendants themselves did not engage in extreme and outrageous
conduct; and the breach of fiduciary duty claim failed for lack of a fiduciary relationship.
Before defendants moved for summary judgment, the trial court granted four protective orders at the
behest of nonparty witnesses, denied a protective order Robson sought, and awarded sanctions against
Robson's counsel. We relate the pertinent facts surrounding those orders in part 6. of our legal discussion.
a. The abuse evidence
Plaintiff Robson was born in Australia in 1982. He became fascinated with Jackson after seeing a music
video at age two, began emulating his dance moves, and became obsessed with Jackson and dancing over
the next few years. Plaintiff met Jackson as a prize for winning a dance contest in 1987, and danced on
stage with Jackson at a concert the following night.
In 1990, the Robson family visited the United States, and plaintiff's mother, Joy Robson, got in touch with
Ms. Staikos, Jackson's personal assistant at MJJ Productions. Through Ms. Staikos, Jackson invited the
Robsons to his recording studios, and Jackson then invited the family to Neverland [**15] Ranch for the
weekend. Plaintiff testified the sexual molestation started during this 1990 trip, when he was seven years
old, and continued until he was 14. Robson's mother was aware Robson slept in Jackson's bed, but had no
concerns because she “just automatically trusted him [Jackson]” at the time.
In September 1991, Joy Robson moved to the United States with plaintiff and his sister Chantal to pursue
plaintiff's career in the entertainment [*687] industry. Defendants successfully sponsored plaintiff for an
H-1B visa allowing him to work in the United States, and hired plaintiffas an employee. In that capacity,
plaintiff performed alongside Jackson in music videos and photo shoots.
At his deposition, Robson described the sexual abuse in vivid detail (fondling Robson's penis, kissing,
giving and receiving oral sex, an incident of attempted anal sex, and so on) and where it occurred (at the
2In the Safechuck case (No. B309450), the corporations requested judicial notice of documents filed in probate proceedings related to
Jackson's estate. We grant these requests. (Evid. Code, § 452, subd. (d).)
Page 7 of20
94 Cal. App. Sth 675, “687; 2023 Cal. App. LEXIS 628, **15
Neverland Ranch in Jackson's bedroom, in the Jacuzzi, the dance studio and on golf cart rides; at two of
Jackson's condominiums; in cars; at the Robson condominium in Hollywood; at a recording studio; in
Jackson's trailer on the set of a Pepsi commercial; at hotels in Studio City and Las Vegas).
b. The corporate [**16] structure evidence
Jackson was the sole shareholder of defendants MJJ Productions, Inc., and MJJ Ventures, Inc., until his
death. Jackson used MJJ Productions as the corporation that furnished his services as a recording artist,
owned copyrights and collected royalties on the exploitation of those recordings. MJJ Ventures was
created to be a partner in and provide Jackson's services in a joint venture with Sony Music
Entertainment. Defendants also provided other services for Jackson as described post.
Jackson was the sole director of both defendants until June 1, 1994, when he amended the bylaws to
authorize an increase to four directors; the other three remained directors through at least the end of 1997.
According to the bylaws of the corporations, the boards managed the corporations’ affairs. For MJJ
Productions, the bylaws stated any and all directors could be removed without cause as provided in
Corporations Code section 303, subdivision (a).
c. The evidence of defendants' involvement in the sexual abuse
The corporations did not own any interest in Jackson's Neverland Ranch or other residences he owned in
Los Angeles. However, they employed Jackson's household and security staff, including the staff at the
ranch and his other residences. [**17]
Ms. Staikos managed the day-to-day operations of the corporations and oversaw Jackson's household and
security staff. Ms. Staikos was in control of “[a]ll the comings and goings, rules, regulations,” including
policy; “[s]he gave the direction of [Jackson's] wants.” In April 1991, Ms. Staikos distributed to all
employees an employee handbook for MJJ Productions, including provisions on security and safety.
[*688]
Ms. Staikos made the arrangements for visits by Jackson's guests, including gifts for Robson and other
guests of Jackson's. Robson testified that Ms. Staikos “was always organizing most everything that
[Jackson] and I did together, meaning, when we were going to get together, where we were going to meet,
how I was going to get there, meaning, either sending a car to pick me up or just organizing the details of
where I, where I needed to be at a certain time in order to be with [Jackson]. Organizing my flights when I
was coming from Australia to Los Angeles.”
Defendants’ employees transported children in company vehicles, provided security during times when
children were present at the Neverland Ranch, and facilitated communications between Robson and
Jackson, sending packages to the [**18] Robsons and faxing messages to Robson from Jackson.
Ms. Staikos was in charge of household policies and procedures; was responsible for handling the
discipline, employment and coordination of defendants' employees; and could hire and fire employees
without Jackson's approval. Defendants' employees were required to keep the personal or business affairs
of Jackson and his companies confidential.
Employees of defendants witnessed the sexual abuse of Robson or circumstances suggesting sexual abuse.
Defendants’ security guard, Charli Michaels, saw Jackson put his hand on Robson's crotch area while they
were on the amusement park rides at the Neverland Ranch. On another occasion, she saw Jackson holding
Page 8 of 20
94 Cal. App. Sth 675, *688; 2023 Cal. App. LEXIS 628, **18
Robson's genitals in the dance studio at the ranch. Several of defendants‘ employees testified that Jackson
had children sleeping overnight in his bed several times a week, and that Robson slept with Jackson in
Jackson's bedroom. Defendants’ employees would find Jackson's and Robson's clothing and underwear on
the floor around Jackson's bed. One employee testified that it “wasn't a secret” that “the kids were
sleeping in Jackson's room with him,” and another said, “[e]verybody knew he did that.” [**19]
Defendants’ security staff joked that Jackson did not have any girlfriends “because he likes little boys. He
likes little white butts.” Security officer Ms. Michaels remembered Ms. Staikos commenting about
Jackson's obsession with his “little boyfriends.” Defendants' employees were routinely sent to buy gifts
and toys for Jackson's “little friends,” using defendants' funds, including with a credit card issued by MJJ
Productions.
Ms. Michaels testified it was her duty to visually inspect the interior of Jackson's vehicles when he arrived
at the gate, to ensure he was not under duress from a gunman or kidnapper. Ms. Staikos changed security
procedures, with the result that “security around Michael was dangerously loosened when he was on the
estate.” At the same time, Ms. Michaels began to [*689] notice Jackson arriving at the ranch alone with
young boys “under what can only be described as strange circumstances.”
Jackson would drive up to the house at night, usually between 10:00 p.m. and 2:00 a.m., with a youn: oSs
child and run into the house. This happened “[t]oo many [times] to keep count of.” On more than one
occasion, she saw a young boy crouching between the seats as if trying to hide from [**20] view. Almost
all of these late-night arrivals were preceded by a call from Ms. Staikos to alert security that Jackson
would be arriving, and they were to open the gate to let him go through and then call Ms. Staikos to say he
had arrived. Security personnel were to stay away from the house so they would not see who was getting
out of the car.
Defendants implemented policies that allowed Jackson to be alone with children. Ms. Staikos instructed
security staff to “keep your distance” when Jackson had “play time” with children in various areas of the
Neverland Ranch. Staff were instructed to keep parents from children while the children were with
Jackson. Parents were required to sleep in the guest quarters, not the main house. Defendants‘ staff would
take parents shopping or wine tasting away from the ranch when Jackson was there with a child.
No one reported the abuse to the police or any authorities.
d. The trial court's ruling
The trial court concluded there was no evidence defendants exercised control over Jackson; the evidence
demonstrated defendants had no legal ability to control Jackson because of Jackson's “complete and total
ownership of the corporate defendants 9, 3 66 [w]ithout control, [**21] there is no special relationship or duty
that exists between Defendants and [Robson]”; and there was “no evidence of misfeasance by
Defendants.” All the negligence claims therefore failed.
The court also found defendants were entitled to summary adjudication of Robson's claim for intentional
infliction of emotional distress. The court concluded Robson was attempting to hold defendants “directly
liable under a theory of procurement, i.e. direct liability for sexual abuse,” and “such claims are not
available against entities.” As for the breach of fiduciary duty claim, the court found there was no
evidence Robson “was in a trusting relationship with the individual corporate Defendants, even if there is
evidence of such a relationship with Jackson.”
Page 9 of20
94 Cal. App. Sth 675, *689; 2023 Cal. App. LEXIS 628, **21
The trial court entered judgment for defendants on May 5, 2021, and Robson filed a timely notice of
appeal.
[*690]
DISCUSSION
1. The Standard of Review
(2) A demurrer tests the legal sufficiency of the complaint. We review the complaint de novo to determine
whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all
material facts alleged in the complaint, but not contentions, deductions or conclusions of [**22] fact or
law. We also consider matters that may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318
[216 Cal. Rptr. 718, 703 P.2d 58].)
A defendant moving for summary judgment must show “that one or more elements of the cause of action
... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., §
437c, subd. (p)(2).) Summary judgment is appropriate where “all the papers submitted show that there is
no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” (Ud, subd. (c).)
Our Supreme Court has made clear that the purpose of the 1992 and 1993 amendments to the summary
judgment statute was “‘to liberalize the granting of [summary judgment] motions.”” (Perry v. Bakewell
Hawthorne, LLC (2017) 2 Cal.Sth 536, 542 [213 Cal. Rptr. 3d 764, 389 P.3d 1].) It is no longer called a
“disfavored” remedy. (/bid.) “Summary judgment is now seen as ‘a particularly suitable means to test the
sufficiency’ of the plaintiff's or defendant's case.” (Jbid.) On appeal, “we take the facts from the record
that was before the trial court ... ““We review the trial court's decision de novo, considering all the
evidence set forth in the moving and opposing papers except that to which objections were made and
sustained.””” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [32 Cal. Rptr. 3d 436, 116
P.3d 1123].)
2. Safechuck and Robson: The Duty Issue
In Brown, the Supreme Court gave directions [**23] on “how courts should decide whether a defendant
has a legal duty to take action to protect the plaintiff from injuries caused by a third party.” (Brown, supra,
11 Cal.5th at p. 209.) Brown's directions govern how we should decide whether the corporate defendants
had a legal duty to protect plaintiffs—children whom defendants sometimes employed—from alleged
sexual abuse by the corporate defendants' own employee, owner, and director.
(3) Brown directs a two-step inquiry. “First, the court must determine whether there exists a special
relationship between the parties or some other set of circumstances giving rise to an affirmative duty to
protect. Second, if [*691] so, the court must consult the factors described in Rowland [v. Christian (1968)
69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561]] to determine whether relevant policy considerations
counsel limiting that duty.” (Brown, supra, 11 Cal.Sth at p. 209.)
The circumstances here created a “special relationship” that gave rise to an affirmative duty of the
corporations to protect the minor plaintiffs from sexual abuse the corporations knew or suspected was
occurring. Our examination of the factors described in Row/and does not counsel limiting defendants'
duty.
Page 10 of 20
94 Cal. App. Sth 675, “691; 2023 Cal. App. LEXIS 628, **23
a. Legal background
Brown explains the underlying principles.
(4) “To establish a cause of action for negligence, the plaintiff must show that [**24] the ‘defendant had
a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of
the resulting injury.” (Brown, supra, 11 Cal.Sth at p. 213.) A legal duty of care is the threshold
requirement for recovery. (/bid.) The existence of a duty is a question of law for the court. (/bid.)
(5) Civil Code section 1714 sets forth the “‘general rule’” governing duty. (Brown, supra, 11 Cal.Sth at p.
213.) Section 1714 “establishes the default rule that each person has a duty ‘to exercise, in his or her
activities, reasonable care for the safety of others.” (Brown, at p. 214.) But section 1714 has limits:
“Generally, the ‘person who has not created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another’ from that peril.” (Brown, at p. 214.) Examples are a person
“who stumbles upon someone drowning” or “who stumbles upon a mugging.” (bid.) “Generally, oss ‘one
owes no duty to control the conduct of another, nor to warn those endangered by such conduct.””” (/bid.)
The “no-duty-to-protect rule is not absolute, however; [the Supreme Court] has recognized a number of
exceptions.” (Brown, supra, 11 Cal.Sth at p. 215.) “Under some circumstances, a defendant may have an
affirmative duty to protect the plaintiff from harm at the hands of a third party, even though the risk of
harm is not of the [**25] defendant's own making.” (Ibid.)
(6) One of the exceptions is that “a person may have an affirmative duty to protect the victim of another's
harm if that person is in what the law calls a ‘special relationship’ with either the victim or the person who
created the harm.” (Brown, supra, 11 Cal.Sth at p. 215.) “A special relationship between the defendant
and the victim is one that ‘gives the victim a right to expect’ protection from the defendant, while a
special relationship between the [*692] defendant and the dangerous third party is one that ‘entails an
ability to control [the third party's] conduct.’” (/d. at p. 216.)
Examples of relationships between the defendant and the victim that give the victim a right to expect
protection from the defendant are relationships “between parents and children, colleges and students,
employers and employees, common carriers and passengers, and innkeepers and guests.” (Brown, supra,
11 Cal.Sth at p. 216.) “The existence of such a special relationship puts the defendant in a unique position
to protect the plaintiff from injury. The law requires the defendant to use this position accordingly.”
(bid.)
(7) In Brown, the court summarized: This rule “extends a right of recovery to individuals in relationships
involving dependence or control, and who [**26] by virtue of those relationships have reason to expect
the defendant's protection.” (Brown, supra, 11 Cal.Sth at p. 220.) * 6666 [A] typical setting for the recognition
of a special relationship is where ‘the plaintiff is particularly vulnerable and dependent upon the defendant
who, correspondingly, has some control over the plaintiffs welfare.’”’” (Jbid.) “Where such a special
relationship exists between the defendant and a minor, the obligation to provide such protection and
assistance may include a duty to protect the minor from third party abuse.” (/d. at p. 220.)
b. These cases: the special relationship
(8) We are presented here with “special circumstances” that burdened defendants with a special obligation
to offer protection or assistance (Brown, supra, 11 Cal.Sth at p. 220) to plaintiffs. Plaintiffs were young
children—by definition, vulnerable and dependent upon the adults who took care of them and supervised
Page 11 of 20
94 Cal. App. Sth 675, *692; 2023 Cal. App. LEXIS 628, **26
them. Defendants sometimes employed these children. Plaintiffs were often in the care and under the
supervision of defendants’ employees, who left them secluded with Jackson, sometimes for hours on end.
Defendants' employees arranged for plaintiffs to be guests in locations staffed and run by defendants; they
organized and facilitated occasions for the children [**27] to be alone with Jackson; and they were aware
of the risk that Jackson would molest the children.
Jackson did not meet plaintiffs “incidentally”; Jackson did not unwittingly “stumble upon” them.
Defendants employed both Jackson and minor plaintiffs and made the arrangements enabling Jackson to
be alone with them. In Robson's case, defendants sponsored Robson's H-1B visa application, enabling
them to employ him in the United States. Defendants* assertion that the alleged molestation “occurred in
places that the Corporations had no interest or control” ignores allegations and evidence that the
molestation occurred in many places, including in residences that were run and staffed by [*693]
defendants’ employees. It is difficult to conceive a special relationship involving more foreseeable
victims, or victims more dependent and vulnerable than these plaintiffs. Plaintiffs had every right to
expect defendants to protect them from the entirely foreseeable danger of being left alone with Jackson.
(9) Defendants cite many cases which they say support the proposition that, for a “special relationship” to
exist, the defendant must have the ability to control the third party's conduct, and there is [**28] no duty
where there is no ability to control the dangerous third party. None of the cases defendants cite supports
that broad proposition, nor does any other California authority. In California,
Preview
Electronically FILED by Superior Court of California, County of Los Angeles 9/12/2023 5:34 PM David W. Slayton, PANISH | SHEA | BOYLE | RAVIPUDI LLP Executive Officer/Clerk of Court, BRIAN J. PANISH, State Bar No. 116060 By E. Thomas, Deputy Clerk panish@psbr.law RAHUL RAVIPUDL, State Bar No. 204519 rravipudi@psbr.law JESSE CREED, State Bar No. 272595 jcreed@psbr.law 11111 Santa Monica Boulevard, Suite 700 Los Angeles, CA 90025 Tel: (310) 477-1700 Fax: (310) 477-1699 MORGAN & MORGAN EMILY C. JEFFCOTT (admitted pro hac vice) ejeffcott@forthepeople.com 633 West Fifth Street, Suite 2652 Los Angeles, CA 90071 Tel: (213) 787-8590 10 Fax: (213) 418-3983 11 BEASLEY ALLEN JOSEPH VANZANDT (admitted pro hac vice) 12 joseph.vanzandt@beasleyallen.com 234 Commerce Street 13 Montgomery, AL 36103 Tel: (334) 269-2343 14 Co-Lead and Co-Liaison Counsel for Plaintiffs 15 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA 17 FOR THE COUNTY OF LOS ANGELES — SPRING STREET COURTHOUSE 18 COORDINATION PROCEEDING JUDICIAL COUNCIL COORDINATION SPECIAL TITLE [RULE 3.400] PROCEEDING NO. 5255 19 SOCIAL MEDIA CASES Lead Case No. For Filing Purposes: 20 22STCV21355 21 THIS DOCUMENT RELATES TO: Assignedfor All Purposes to the 22 Hon. Carolyn B. Kuhl, Department SSC-12 (Christina Arlington Smith, et al. v. TikTok 23 Inc., et al., Case No. 22STCV21355) PLAINTIFFS’ NOTICE OF 24 SUPPLEMENTAL AUTHORITY (M.C. ex rel. Cramblet v. Meta Platforms, 25 Inc., et al., Case No. 22STCV40543) Date: September 13, 2023 (JP., et al. v. Meta Platforms, Inc., et al., Time: 1:30 p.m. 26 Case No. 22STCV26778) Dept: SSC-12 (J.S., et al. v. Meta Platforms, Inc., et al., Case 27 No. CV2022-1472) 28 PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY Plaintiffs hereby notify the Court of Safechuck v. MJJ Productions, Inc., 94 Cal. App. Sth 675 (Aug. 18, 2023), as supplemental authority in support of their Opposition to Defendants’ Demurrer to Master Complaint and Plaintiffs’ Short-Form Complaints. A copy of the Safechuck opinion is attached hereto as Exhibit A. This authority supplements Plaintiffs’ analysis and argument relating to California’s two- part duty analysis beginning with the statutory duty imposed by Civil Code § 1714(a) as establishing the “default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.” See Plaintiffs’ Response, at pp. 45-53. Plaintiffs specifically direct the Court’s attention to the following portions of the Safechuck 10 opinion: 11 California applies the two-step duty analysis as outlined in Brown v. USA 12 Taekwondo, 11 Cal. 5th 204, 209 (2021). See Plaintiffs’ Response, pp. 45-46. 13 California Civil Code § 1714 “establishes the default rule that each person has a duty 14 to exercise, in his or her activities, reasonable care for the safety of others.” 15 Safechuck, 94 Cal. App. 5th at 691 (internal quotation marks omitted). See Plaintiffs” 16 Response, pp. 45-46. 17 Safechuck recognizes “special circumstances” that exist when children are involved 18 who are “by definition, vulnerable and dependent[.]” Safechuck, 94 Cal. App. 5th at 19 692-4. See Plaintiffs’ Response, pp. 50-51. 20 Safechuck recognizes that the “typical setting for the recognition of a special 21 relationship is where ‘the plaintiff is particularly vulnerable and dependent on the 22 defendant who, correspondingly, has some control over the plaintiff's welfare. a 23 Safechuck, 94 Cal. App. Sth at 692 (quoting Brown, 11 Cal. 5th at 220-21). See 24 Plaintiffs’ Response, pp. 51-52. 25 //1 26 //1 27 //1 28 //1 1 PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY 1 DATED: September 12, 2023 PANISH | SHEA | BOYLE | RAVIPUDI LLP 2 Brian J. Panis! Rahul Ravipudi Jesse Creed 11111 Santa Monica Boulevard, Suite 700 Los Angeles, CA 90025 Tel.: (310) 477-1700 panish@psbr.law rravipudi@psbr.law jereed@psbr.law Emily Jeffcott 10 MORGAN & MORGAN 11 633 West Fifth Street, Suite 2652 Los Angeles, CA 90071 12 Tel.: 213-787-8590 Fax: 213-418-3983 13 ejeffcott@forthepeople.com 14 Joseph G. VanZandt 15 BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC 16 234 Commerce Street Montgomery, AL 36103 17 Tel.: 334-269-2343 Joseph. VanZandt@BeasleyAllen.com 18 19 Paul R. Kiesel Mariana A. McConnell 20 Cherisse H. Cleofe KIESEL LAW LLP 21 8648 Wilshire Boulevard Beverly Hills, CA 90211 22 Tel.: 310-854-4444 23 Fax: 310-854-0812 kiesel@kiesel.law 24 meconnell@kiesel.law cleofe@kiesel.law 25 Christopher L. Ayers 26 SEEGER WEISS LLP 27 55 Challenger Road Ridgefield Park, NJ 07660 28 Tel.: 973-639-9100 2 PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY Fax: 973-679-8656 cayers@seegerweiss.com Matthew Bergman Laura Marquez-Garrett SOCIAL MEDIA VICTIMS LAW CENTER 1390 Market Street, Suite 200 San Francisco, CA 94102 Tel.: 206-741-4862 matt@socialmediavictims.org laura@socialmediavictims.org Brooks Cutter CUTTER LAW P.C. 401 Watt Avenue Sacramento, CA 95864 10 Tel.: 916-290-9400 11 Fax: 916-588-9330 bcutter@cutterlaw.com 12 Thomas P. Cartmell 13 WAGSTAFF & CARTMELL LLP 4740 Grand Avenue Suite 300 14 Kansas City, MO 64112 15 Tel.: 816-701-1100 teartmell@wellp.com 16 Amy Eskin 17 SCHNEIDER WALLACE COTTRELL KONECKY LLP 18 2000 Powell Street Suite 1400 19 Emeryville, CA 94608 Tel.: 415-421-7100 20 Fax: 415-421-7105 aeskin@schneiderwallace.com 21 Kirk Goza 22 GOZA & HONNOLD, LLC 23 9500 Nall Avenue, Suite 400 Overland Park, KS 66207 24 Tel.: 913-386-3547 Fax: 913-839-0567 25 kgoza@gohonlaw.com 26 Rachel Lanier 27 THE LANIER LAW FIRM, P.C. 2829 Townsgate Road, Suite 100 28 Westlake Village, CA 91361 3 PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY Tel.: 713-659-5200 Rachel.Lanier@LanierLawFirm.com Sin-Ting Mary Liu AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC 17 E Main St #200 Pensacola, FL 32502 Tel.: 850-202-1010 mliu@awkolaw.com Marc J. Mandich SOUTHERN MED LAW 2762 B M Montgomery Street, Suite 101 Homewood, AL 35209 Tel.: 205-564-2741 10 Fax: 205-649-6346 11 marc@southernmedlaw.com 12 Kelly McNabb LIEFF CABRASER HEIMANN & BERNSTEIN, 13 LLP 275 Battery Street, 29th Floor 14 San Francisco, CA 94111-3339 15 Tel.: 415-956-1000 kmenabb@Ichb.com 16 Jonathan D. Orent 17 MOTLEY RICE LLC 40 Westminster St., 5th FI. 18 Providence RI 02903 19 Tel.: 401-457-7723 Fax: 401-457-7708 20 jorent@motleyrice.com 21 Ruth Rizkalla THE CARLSON LAW FIRM, PC 22 1500 Rosecrans Avenue, Suite 500 23 Manhattan Beach, CA 90266 Tel.: 254-526-5688 24 Fax: 254-526-8204 rrizkalla@carlsonattorneys.com 25 Frederick Schenk 26 CASEY GERRY SCHENK FRANCAVILLA 27 BLATT & PENFIELD, LLP 110 Laurel Street 28 San Diego, CA 92101-1486 4 PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY Tel.: 619-238-1811 Fax: 619-544-9232 Fschenk@cglaw.com Co-Lead, Co-Liaison, and Leadership Counsel for Plaintiffs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY EXHIBIT A Safechuck v. MJJ Productions, Inc. Court of Appeal of California, Second Appellate District, Division Eight August 18, 2023, Opinion Filed B309450, B308602, B313436 Reporter 94 Cal. App. 5th 675 *; 2023 Cal. App. LEXIS 628 **; 2023 WL 5317832 JAMES SAFECHUCK, Plaintiff and Appellant, v. MJJ PRODUCTIONS, INC., et al., Defendants and Respondents. WADE ROBSON, Plaintiff and Appellant, v. MJJ PRODUCTIONS, INC., et al., Defendants and Respondents; LILY CHANDLER et al., Respondents. Prior History: [**1] APPEALS from judgments and an order of the Superior Court of Los Angeles County, No. BC545264, No. BC508502, Mark A. Young, Judge. Safechuck v. MJJ Productions, Inc., 43 Cal. App. 5th 1094, 257 Cal. Rptr. 3d 229, 2020 Cal. App. LEXIS 3, 2020 WL 38357 (Jan. 3, 2020) Disposition: Judgments reversed and remanded; sanctions order affirmed. Counsel: Manly, Stewart & Finaldi, John C. Manly, Vince W. Finaldi, Alexander E. Cunny; Esner, Chang, Boyer & Murphy, Holly N. Boyer and Kevin K. Nguyen for Plaintiffs and Appellants. Kinsella Weitzman Iser Kump Holley, Kinsella Holley Iser Kump Steinsapir, Jonathan P. Steinsapir, Suann C. Maclsaac, Aaron C. Liskin, Katherine T. Kleindienst; Greines, Martin, Stein & Richland and Alana H. Rotter for Defendants and Respondents. Tharpe & Howell and Eric B. Kunkel for Respondents Lily Chandler and Tabitha Rose Marks. Judges: Opinion by Grimes, Acting P. J., with Wiley and Viramontes, JJ., concurring. Opinion by: Grimes, Acting P. J. Opinion [*680] GRIMES, Acting P. J.— SUMMARY The principal issue in these cases is whether two corporations, wholly owned by the late entertainer Michael Jackson, had a legal duty to protect plaintiffs from sexual abuse Jackson is alleged to have inflicted on them for many years while they were children. The corporations say they had no duty to protect plaintiffs from Jackson because of their corporate structure, that is, “because [**2] they had no Page 2 of 20 94 Cal. App. 5th 675, *680; 2023 Cal. App. LEXIS 628, **2 ability to control Jackson—their sole owner—or his interactions with [plaintiffs]. Parties cannot be liable for neglecting to exercise powers they simply do not have.” (1) Following the guidance in Brown v. USA Taekwondo (2021) 11 Cal.5th 204 [276 Cal. Rptr. 3d 434, 483 P.3d 159] (Brown), we conclude a corporation that facilitates the sexual abuse of children by one of its employees is not excused from an affirmative duty to protect those children merely because it is solely owned by the perpetrator of the abuse. The corporations say these are “idiosyncratic circumstances,” and perhaps they are. There is certainly no comparable case law to recite. But it would be perverse to find no duty based on the corporate defendant having only one shareholder. And so we reverse the judgments entered for the corporations. One of the plaintiffs also appeals a sanctions order and discovery rulings granting protective orders to nonparty witnesses. We find no abuse of discretion in those rulings. PROCEDURAL BACKGROUND James Safechuck filed his original complaint against MJJ Productions, Inc., and MJJ Ventures, Inc. (defendants or the corporations), in May 2014, when he was 36 years old. Wade Robson filed his complaint in May 2013, at the age of 30. Their lawsuits were dismissed [**3] on demurrer and summary judgment, respectively, based on the statute of limitations, but legislative changes while their appeals were pending made their lawsuits timely, and the cases were returned to the trial court. (Safechuck _v. MJJ Productions, Inc. (2020) 43 Cal.App.Sth 1094 [257 Cal. Rptr. 3d 229].) The trial court sustained defendants' demurrer without leave to amend in Safechuck's case and granted summary judgment to defendants in Robson's case. Both plaintiffs appealed, and Robson also appealed a discovery sanctions order against his counsel. The parties requested we consolidate the two [*681] cases for oral argument. We consolidated the cases, as both cases present the same principal issue concerning the existence of a duty owed by the corporations to plaintiffs. FACTS 1. The Safechuck Case We describe the facts as alleged in the operative complaint since the trial court sustained a demurrer without leave to amend. a. The abuse allegations In late 1986 or early 1987, when he was nine years old, plaintiff Safechuck was hired to work on a Pepsi commercial that featured Michael Jackson. Several months later, Jackson wrote plaintiff a letter on one of defendants’ stationery. After that, plaintiff and his family were invited to dinner at Jackson's home on Hayvenhurst Avenue [**4] in Encino. The invitation was made by Jackson through Jolie Levine. Ms. Levine was then Jackson's secretary and personal assistant “and an employee/managing agent” of one of the defendants. During the visit, when they were alone, Jackson gave plaintiff presents (a globe and $700). After this dinner, Jackson and Safechuck spoke frequently on the telephone and visited each other's homes. Jackson became like a part of plaintiff's family. Page 3 of 20 94 Cal. App. 5th 675, *681; 2023 Cal. App. LEXIS 628, **4 In 1988, when plaintiff was 10 years old, Jackson invited him to a Pepsi convention in Hawaii featuring the commercial they had appeared in, and the two appeared on stage together. Jackson and defendants made all the arrangements and paid all the expenses for the trip for plaintiff and his mother. During this trip, Jackson asked plaintiffto sleep over in his room, but plaintiff's mother would not allow it. In March 1988, plaintiff and his mother went to New York to attend a Broadway show with Jackson. Ms. Levine again made all the arrangements through defendants, and Jackson and/or defendants paid all expenses for the trip. Jackson and defendants also arranged for plaintiff and his parents to travel to Pensacola, Florida, and stay in houses Jackson and defendants [**5] had rented there. Plaintiff stayed with Jackson, and his parents stayed in one of the other houses. In 1988, plaintiff and his mother spent six months with Jackson on tour. Jackson and MJJ Productions made all the arrangements and paid all the [*682] expenses, with Ms. Levine as the “point person.” The first incident of sexual abuse occurred in June 1988, during this six-month tour. In Jackson's hotel room in Paris, Jackson told plaintiff he “was going to change Plaintiff's life by showing him how to masturbate.” Jackson demonstrated on himself, and then made plaintiff try. Jackson later told plaintiff other sexual acts were a way of “showing love.” Plaintiff began sleeping in Jackson's bed regularly during the rest of the tour, and the abuse continued.! From 1988 through 1992, Jackson abused plaintiff hundreds of times in various locations. Jackson performed a “marriage” with plaintiff with a ring and a signed document to pretend they got married. He also trained plaintiff to exchange “declarations of love” with him, and plaintiff developed a significant emotional attachment to Jackson. Whenever plaintiff visited Jackson's Neverland Ranch, he slept in Jackson's bedroom. They would “mess up” [**6] another bedroom to make it seem as if plaintiff had slept there. Jackson also installed chimes— and later video cameras—in the hallway to his bedroom to be warned when people approached. Jackson had a secret closet in his bedroom that required a passcode, and he would often abuse plaintiff there. He ran “drills” with plaintiff so plaintiff could practice dressing quickly and running away quietly. Jackson repeatedly instructed plaintiff to deny everything if asked about the abuse, and told plaintiff not to tell anyone about their relationship. Jackson told plaintiff he “did not have to answer questions about what they did”; he should “be vague and not give real answers to questions”; and if police ever told him Jackson confessed, they were lying and trying to trick him. Jackson repeatedly told plaintiff their participation in sexual acts was plaintiff's idea, and nothing would happen to him if he lied to other people. Jackson reminded plaintiff on a constant basis that if anyone discovered the abuse, their “futures would be over.” Mariano Quindoy was the estate manager at the Neverland Ranch and an employee of defendant MJJ Productions from May 1989 to April 1990. He stated he had witnessed [**7] several incidents of suspicious activity at the Neverland Ranch, including finding Jackson's and plaintiffs underwear lying [*683] next to Jackson's bed. He also saw Jackson put his hand down the front of plaintiff's shorts 1 Jackson kissed plaintiff's genitals and had plaintiff rub and suck Jackson's nipples as he masturbated. Jackson “liked to have Plaintiff bend over on all fours and then [Jackson] would grab Plaintiff's butt cheeks and spread them open with one hand, and masturbate himself with the other. [Jackson] referred to this activity as ‘selling me some,’ because [he] would give Plaintiff jewelry after he did this, as a ‘reward.”” Jackson also taught plaintiff code words so others would not know they were talking about their sexual activities, and would scratch the inside of plaintiff's hand as a sexual cue. On two occasions, Jackson inserted his finger into plaintiff's anus. Page 4 of 20 94 Cal. App. 5th 675, *683; 2023 Cal. App. LEXIS 628, **7 while the two were in the Jacuzzi. Mr. Quindoy heard gossip among the Neverland staff that Jackson was “having an affair” with plaintiff and they were sleeping together. He also stated Norma Staikos told him and his wife never to leave children alone with Jackson. (Ms. Staikos was executive director of Mr. Quindoy's employer, MJJ Productions.) Blanca Francia was Jackson's personal maid and an MJJ Productions employee. She witnessed Ms. Staikos arrange meetings between Jackson and children and their families. She stated Ms. Staikos would arrange for a limousine to pick up plaintiff and other children and take them to see Jackson at Jackson's condominium in Century City. Orietta Murdock was an assistant to Ms. Staikos (and to Ms. Staikos's predecessor). Ms. Murdock heard about Jackson's reputation regarding children soon after she started working for MJJ Productions in September 1989. Ms. Murdock stated that, while Ms. Staikos was giving her a tour of Neverland, Ms. Staikos [**8] told Ms. Murdock never to leave her son alone with Jackson. Plaintiff's complaint also describes “a transition period” after plaintiff turned 12 years old, during which Jackson began to focus his attention on a younger boy and began “to prepare Plaintiff for separation.” When plaintiff fully reached puberty, the sexual abuse finally stopped. The complaint goes on to allege that Jackson remained active in plaintiff's life, with the relationship tapering off after plaintiff reached the age of 17; and describes various events and plaintiff's life and feelings up to and after Jackson's death. b. The allegations of defendants' involvement in the sexual abuse The complaint alleges Jackson formed MJJ Productions “as his primary business entity” that held most or all of the copyrights to Jackson's music and videos. Jackson formed MJJ Ventures “in part for the purpose of employing Plaintiff to work with [Jackson] on various projects.” Jackson was “the president/owner and a representative/agent” of both defendants. Plaintiff alleges Jackson acted “with the full knowledge, consent and cooperation” of defendants, “who were his co-conspirators, collaborators, facilitators and alter egos for the childhood [**9] sexual abuse alleged.” Defendants were held out as businesses dedicated to creating and distributing Jackson's multimedia entertainment, but “actually served dual purposes. The thinly-veiled, covert second purpose was to operate as a child sexual abuse operation, specifically designed to locate, attract, lure and seduce child sexual abuse victims. In fact, under this dual purpose, [Jackson] and a select few [*684] managing agents/employees of [defendants'] inner circle designed, developed and operated what is likely the most sophisticated public child sexual abuse procurement and facilitation organization the world has known.” Ms. Staikos “exercised a significant degree of control over [Jackson's] affairs in her capacity as the Executive Director” of MJJ Productions. For example, when Ms. Staikos denied a request for a raise by Ms. Murdock, and Ms. Murdock appealed to Jackson, Ms. Staikos terminated Ms. Murdock for doing so. Jackson later admitted “that Ms. Staikos had forced [him] to agree to the termination against his wishes.” Defendants knew or had reason to know that Jackson “had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage [**10] in such conduct with Plaintiff, and failed to take reasonable steps, and implement reasonable safeguards, to avoid” such conduct by Jackson in the future. Page 5 of 20 94 Cal. App. Sth 675, “684; 2023 Cal. App. LEXIS 628, **10 The complaint alleges defendants concealed the facts concerning Jackson's sexual misconduct from plaintiff, his parents, law enforcement authorities and others, and implemented measures making his conduct harder to detect, including “[p]lacing [Jackson] in a separate and secluded environment ... in charge of young boys”; allowing him to come into contact with minors without adequate supervision; and holding him out to plaintiff, his parents and others “as being in good standing and trustworthy.” Plaintiff and other minors “were regularly trained and mentored by” Jackson, an agent of defendants, “and were cared for by staff of [defendants] who were knowingly placed in contact with these minors and hired to provide care for these minors, including but not limited to: cleaning services, food preparation, maid services, transportation services, and scheduling services.” The complaint alleges defendant entities were “created to, at least in part, provide for the welfare and safety of minor children.” Their boards of directors and officers [**11] “conferred substantial actual and ostensible authority” on Jackson, permitting him to have solitary contact with plaintiff, allowing plaintiff and other minors to sleep in his bed, allowing Jackson to train and coach minors, travel with them and “have authority over those minors as an employment superior and supervisor.” Defendants “employed individuals who were responsible for supervising [Jackson] and the minors in his charge.” Specifically, during the time plaintiff was being abused, Ms. Staikos and Ms. Levine “were placed in a role within [defendants] whereby the safety, welfare, and well-being of all minor children entrusted to Defendants was Ms. Staikos and Ms. Levine's primary responsibility.” Ms. Staikos and [*685] Ms. Levine “had the authority and ability to limit [Jackson's] access to minor children” by requiring parents to be present when children were with Jackson; reporting Jackson to law enforcement; enforcing rules requiring other employees to report Jackson to law enforcement if they suspected abuse; and implementing procedures limiting Jackson's access to children. Plaintiff's parents “were assured by Ms. Staikos and Ms. Levine, that their children would be safe, taken care [**12] of, and cared for, while they were in contact with [Jackson].” ce. The demurrer Based on the allegations just recited, the operative third amended complaint alleged six causes of action: intentional infliction of emotional distress; negligence; negligent supervision; negligent retention/hiring; negligent failure to warn, train or educate; and breach of fiduciary duty. Defendants demurred to the operative complaint in September 2020. Defendants' principal argument was that plaintiff's theories of liability all “hinge on the proposition that the Corporations had the ability to control Jackson—their owner, president, and sole shareholder—and prevent the alleged molestation.” Defendants argued Jackson as sole shareholder exercised complete control over defendants, not the reverse. Defendants “therefore had no ability—and thus no legal duty—to control or supervise Jackson and somehow protect [plaintiff] from him.” d. The trial court's ruling The trial court sustained defendants’ demurrer without leave to amend. As to the negligence causes of action, the court concluded that plaintiff did not sufficiently allege a special relationship between himself and defendants, and “[e]ven if there was a special [**13] relationship, a legal duty only exists where a defendant has an actual ability to control the person who needs to be controlled.” As the sole shareholder of defendants, “Jackson had absolute legal control over the entities Page 6 of 20 94 Cal. App. Sth 675, “685; 2023 Cal. App. LEXIS 628, **13 and everyone employed by them.” “Since Defendants have no ability to control Jackson regarding his alleged sexual abuse of Plaintiff, there is no legal duty of care between the parties and the negligence causes of action fail as a matter of law.” The court found the negligence claims failed for additional reasons. The court also found the breach of fiduciary duty claim failed because defendants owed no fiduciary duty as plaintiffs employers, and the intentional infliction of emotional distress claim failed because corporations cannot be direct perpetrators of sex abuse. [*686] The court entered judgment for defendants and against Safechuck on October 27, 2020, and Safechuck filed a timely notice of appeal.? 2. The Robson Case Robson's operative complaint alleged the same causes of action as the Safechuck complaint. Defendants sought summary judgment in December 2020. They contended all the claims failed for lack of causation; the negligence claims failed because defendants had [**14] no duty of care to Robson; the emotional distress claim failed because defendants themselves did not engage in extreme and outrageous conduct; and the breach of fiduciary duty claim failed for lack of a fiduciary relationship. Before defendants moved for summary judgment, the trial court granted four protective orders at the behest of nonparty witnesses, denied a protective order Robson sought, and awarded sanctions against Robson's counsel. We relate the pertinent facts surrounding those orders in part 6. of our legal discussion. a. The abuse evidence Plaintiff Robson was born in Australia in 1982. He became fascinated with Jackson after seeing a music video at age two, began emulating his dance moves, and became obsessed with Jackson and dancing over the next few years. Plaintiff met Jackson as a prize for winning a dance contest in 1987, and danced on stage with Jackson at a concert the following night. In 1990, the Robson family visited the United States, and plaintiff's mother, Joy Robson, got in touch with Ms. Staikos, Jackson's personal assistant at MJJ Productions. Through Ms. Staikos, Jackson invited the Robsons to his recording studios, and Jackson then invited the family to Neverland [**15] Ranch for the weekend. Plaintiff testified the sexual molestation started during this 1990 trip, when he was seven years old, and continued until he was 14. Robson's mother was aware Robson slept in Jackson's bed, but had no concerns because she “just automatically trusted him [Jackson]” at the time. In September 1991, Joy Robson moved to the United States with plaintiff and his sister Chantal to pursue plaintiff's career in the entertainment [*687] industry. Defendants successfully sponsored plaintiff for an H-1B visa allowing him to work in the United States, and hired plaintiffas an employee. In that capacity, plaintiff performed alongside Jackson in music videos and photo shoots. At his deposition, Robson described the sexual abuse in vivid detail (fondling Robson's penis, kissing, giving and receiving oral sex, an incident of attempted anal sex, and so on) and where it occurred (at the 2In the Safechuck case (No. B309450), the corporations requested judicial notice of documents filed in probate proceedings related to Jackson's estate. We grant these requests. (Evid. Code, § 452, subd. (d).) Page 7 of20 94 Cal. App. Sth 675, “687; 2023 Cal. App. LEXIS 628, **15 Neverland Ranch in Jackson's bedroom, in the Jacuzzi, the dance studio and on golf cart rides; at two of Jackson's condominiums; in cars; at the Robson condominium in Hollywood; at a recording studio; in Jackson's trailer on the set of a Pepsi commercial; at hotels in Studio City and Las Vegas). b. The corporate [**16] structure evidence Jackson was the sole shareholder of defendants MJJ Productions, Inc., and MJJ Ventures, Inc., until his death. Jackson used MJJ Productions as the corporation that furnished his services as a recording artist, owned copyrights and collected royalties on the exploitation of those recordings. MJJ Ventures was created to be a partner in and provide Jackson's services in a joint venture with Sony Music Entertainment. Defendants also provided other services for Jackson as described post. Jackson was the sole director of both defendants until June 1, 1994, when he amended the bylaws to authorize an increase to four directors; the other three remained directors through at least the end of 1997. According to the bylaws of the corporations, the boards managed the corporations’ affairs. For MJJ Productions, the bylaws stated any and all directors could be removed without cause as provided in Corporations Code section 303, subdivision (a). c. The evidence of defendants' involvement in the sexual abuse The corporations did not own any interest in Jackson's Neverland Ranch or other residences he owned in Los Angeles. However, they employed Jackson's household and security staff, including the staff at the ranch and his other residences. [**17] Ms. Staikos managed the day-to-day operations of the corporations and oversaw Jackson's household and security staff. Ms. Staikos was in control of “[a]ll the comings and goings, rules, regulations,” including policy; “[s]he gave the direction of [Jackson's] wants.” In April 1991, Ms. Staikos distributed to all employees an employee handbook for MJJ Productions, including provisions on security and safety. [*688] Ms. Staikos made the arrangements for visits by Jackson's guests, including gifts for Robson and other guests of Jackson's. Robson testified that Ms. Staikos “was always organizing most everything that [Jackson] and I did together, meaning, when we were going to get together, where we were going to meet, how I was going to get there, meaning, either sending a car to pick me up or just organizing the details of where I, where I needed to be at a certain time in order to be with [Jackson]. Organizing my flights when I was coming from Australia to Los Angeles.” Defendants’ employees transported children in company vehicles, provided security during times when children were present at the Neverland Ranch, and facilitated communications between Robson and Jackson, sending packages to the [**18] Robsons and faxing messages to Robson from Jackson. Ms. Staikos was in charge of household policies and procedures; was responsible for handling the discipline, employment and coordination of defendants' employees; and could hire and fire employees without Jackson's approval. Defendants' employees were required to keep the personal or business affairs of Jackson and his companies confidential. Employees of defendants witnessed the sexual abuse of Robson or circumstances suggesting sexual abuse. Defendants’ security guard, Charli Michaels, saw Jackson put his hand on Robson's crotch area while they were on the amusement park rides at the Neverland Ranch. On another occasion, she saw Jackson holding Page 8 of 20 94 Cal. App. Sth 675, *688; 2023 Cal. App. LEXIS 628, **18 Robson's genitals in the dance studio at the ranch. Several of defendants‘ employees testified that Jackson had children sleeping overnight in his bed several times a week, and that Robson slept with Jackson in Jackson's bedroom. Defendants’ employees would find Jackson's and Robson's clothing and underwear on the floor around Jackson's bed. One employee testified that it “wasn't a secret” that “the kids were sleeping in Jackson's room with him,” and another said, “[e]verybody knew he did that.” [**19] Defendants’ security staff joked that Jackson did not have any girlfriends “because he likes little boys. He likes little white butts.” Security officer Ms. Michaels remembered Ms. Staikos commenting about Jackson's obsession with his “little boyfriends.” Defendants' employees were routinely sent to buy gifts and toys for Jackson's “little friends,” using defendants' funds, including with a credit card issued by MJJ Productions. Ms. Michaels testified it was her duty to visually inspect the interior of Jackson's vehicles when he arrived at the gate, to ensure he was not under duress from a gunman or kidnapper. Ms. Staikos changed security procedures, with the result that “security around Michael was dangerously loosened when he was on the estate.” At the same time, Ms. Michaels began to [*689] notice Jackson arriving at the ranch alone with young boys “under what can only be described as strange circumstances.” Jackson would drive up to the house at night, usually between 10:00 p.m. and 2:00 a.m., with a youn: oSs child and run into the house. This happened “[t]oo many [times] to keep count of.” On more than one occasion, she saw a young boy crouching between the seats as if trying to hide from [**20] view. Almost all of these late-night arrivals were preceded by a call from Ms. Staikos to alert security that Jackson would be arriving, and they were to open the gate to let him go through and then call Ms. Staikos to say he had arrived. Security personnel were to stay away from the house so they would not see who was getting out of the car. Defendants implemented policies that allowed Jackson to be alone with children. Ms. Staikos instructed security staff to “keep your distance” when Jackson had “play time” with children in various areas of the Neverland Ranch. Staff were instructed to keep parents from children while the children were with Jackson. Parents were required to sleep in the guest quarters, not the main house. Defendants‘ staff would take parents shopping or wine tasting away from the ranch when Jackson was there with a child. No one reported the abuse to the police or any authorities. d. The trial court's ruling The trial court concluded there was no evidence defendants exercised control over Jackson; the evidence demonstrated defendants had no legal ability to control Jackson because of Jackson's “complete and total ownership of the corporate defendants 9, 3 66 [w]ithout control, [**21] there is no special relationship or duty that exists between Defendants and [Robson]”; and there was “no evidence of misfeasance by Defendants.” All the negligence claims therefore failed. The court also found defendants were entitled to summary adjudication of Robson's claim for intentional infliction of emotional distress. The court concluded Robson was attempting to hold defendants “directly liable under a theory of procurement, i.e. direct liability for sexual abuse,” and “such claims are not available against entities.” As for the breach of fiduciary duty claim, the court found there was no evidence Robson “was in a trusting relationship with the individual corporate Defendants, even if there is evidence of such a relationship with Jackson.” Page 9 of20 94 Cal. App. Sth 675, *689; 2023 Cal. App. LEXIS 628, **21 The trial court entered judgment for defendants on May 5, 2021, and Robson filed a timely notice of appeal. [*690] DISCUSSION 1. The Standard of Review (2) A demurrer tests the legal sufficiency of the complaint. We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all material facts alleged in the complaint, but not contentions, deductions or conclusions of [**22] fact or law. We also consider matters that may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58].) A defendant moving for summary judgment must show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ud, subd. (c).) Our Supreme Court has made clear that the purpose of the 1992 and 1993 amendments to the summary judgment statute was “‘to liberalize the granting of [summary judgment] motions.”” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.Sth 536, 542 [213 Cal. Rptr. 3d 764, 389 P.3d 1].) It is no longer called a “disfavored” remedy. (/bid.) “Summary judgment is now seen as ‘a particularly suitable means to test the sufficiency’ of the plaintiff's or defendant's case.” (Jbid.) On appeal, “we take the facts from the record that was before the trial court ... ““We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.””” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [32 Cal. Rptr. 3d 436, 116 P.3d 1123].) 2. Safechuck and Robson: The Duty Issue In Brown, the Supreme Court gave directions [**23] on “how courts should decide whether a defendant has a legal duty to take action to protect the plaintiff from injuries caused by a third party.” (Brown, supra, 11 Cal.5th at p. 209.) Brown's directions govern how we should decide whether the corporate defendants had a legal duty to protect plaintiffs—children whom defendants sometimes employed—from alleged sexual abuse by the corporate defendants' own employee, owner, and director. (3) Brown directs a two-step inquiry. “First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect. Second, if [*691] so, the court must consult the factors described in Rowland [v. Christian (1968) 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561]] to determine whether relevant policy considerations counsel limiting that duty.” (Brown, supra, 11 Cal.Sth at p. 209.) The circumstances here created a “special relationship” that gave rise to an affirmative duty of the corporations to protect the minor plaintiffs from sexual abuse the corporations knew or suspected was occurring. Our examination of the factors described in Row/and does not counsel limiting defendants' duty. Page 10 of 20 94 Cal. App. Sth 675, “691; 2023 Cal. App. LEXIS 628, **23 a. Legal background Brown explains the underlying principles. (4) “To establish a cause of action for negligence, the plaintiff must show that [**24] the ‘defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.” (Brown, supra, 11 Cal.Sth at p. 213.) A legal duty of care is the threshold requirement for recovery. (/bid.) The existence of a duty is a question of law for the court. (/bid.) (5) Civil Code section 1714 sets forth the “‘general rule’” governing duty. (Brown, supra, 11 Cal.Sth at p. 213.) Section 1714 “establishes the default rule that each person has a duty ‘to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, at p. 214.) But section 1714 has limits: “Generally, the ‘person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another’ from that peril.” (Brown, at p. 214.) Examples are a person “who stumbles upon someone drowning” or “who stumbles upon a mugging.” (bid.) “Generally, oss ‘one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.””” (/bid.) The “no-duty-to-protect rule is not absolute, however; [the Supreme Court] has recognized a number of exceptions.” (Brown, supra, 11 Cal.Sth at p. 215.) “Under some circumstances, a defendant may have an affirmative duty to protect the plaintiff from harm at the hands of a third party, even though the risk of harm is not of the [**25] defendant's own making.” (Ibid.) (6) One of the exceptions is that “a person may have an affirmative duty to protect the victim of another's harm if that person is in what the law calls a ‘special relationship’ with either the victim or the person who created the harm.” (Brown, supra, 11 Cal.Sth at p. 215.) “A special relationship between the defendant and the victim is one that ‘gives the victim a right to expect’ protection from the defendant, while a special relationship between the [*692] defendant and the dangerous third party is one that ‘entails an ability to control [the third party's] conduct.’” (/d. at p. 216.) Examples of relationships between the defendant and the victim that give the victim a right to expect protection from the defendant are relationships “between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests.” (Brown, supra, 11 Cal.Sth at p. 216.) “The existence of such a special relationship puts the defendant in a unique position to protect the plaintiff from injury. The law requires the defendant to use this position accordingly.” (bid.) (7) In Brown, the court summarized: This rule “extends a right of recovery to individuals in relationships involving dependence or control, and who [**26] by virtue of those relationships have reason to expect the defendant's protection.” (Brown, supra, 11 Cal.Sth at p. 220.) * 6666 [A] typical setting for the recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiffs welfare.’”’” (Jbid.) “Where such a special relationship exists between the defendant and a minor, the obligation to provide such protection and assistance may include a duty to protect the minor from third party abuse.” (/d. at p. 220.) b. These cases: the special relationship (8) We are presented here with “special circumstances” that burdened defendants with a special obligation to offer protection or assistance (Brown, supra, 11 Cal.Sth at p. 220) to plaintiffs. Plaintiffs were young children—by definition, vulnerable and dependent upon the adults who took care of them and supervised Page 11 of 20 94 Cal. App. Sth 675, *692; 2023 Cal. App. LEXIS 628, **26 them. Defendants sometimes employed these children. Plaintiffs were often in the care and under the supervision of defendants’ employees, who left them secluded with Jackson, sometimes for hours on end. Defendants' employees arranged for plaintiffs to be guests in locations staffed and run by defendants; they organized and facilitated occasions for the children [**27] to be alone with Jackson; and they were aware of the risk that Jackson would molest the children. Jackson did not meet plaintiffs “incidentally”; Jackson did not unwittingly “stumble upon” them. Defendants employed both Jackson and minor plaintiffs and made the arrangements enabling Jackson to be alone with them. In Robson's case, defendants sponsored Robson's H-1B visa application, enabling them to employ him in the United States. Defendants* assertion that the alleged molestation “occurred in places that the Corporations had no interest or control” ignores allegations and evidence that the molestation occurred in many places, including in residences that were run and staffed by [*693] defendants’ employees. It is difficult to conceive a special relationship involving more foreseeable victims, or victims more dependent and vulnerable than these plaintiffs. Plaintiffs had every right to expect defendants to protect them from the entirely foreseeable danger of being left alone with Jackson. (9) Defendants cite many cases which they say support the proposition that, for a “special relationship” to exist, the defendant must have the ability to control the third party's conduct, and there is [**28] no duty where there is no ability to control the dangerous third party. None of the cases defendants cite supports that broad proposition, nor does any other California authority. In California,