1 KINSELLA WEITZMAN ISER KUMP LLP

Jonathan P. Steinsapir (SBN 226281)

2 jsteinsapir@[Link]
Suann MacIsaac (SBN 205659)
3 smacisaac@[Link]
Aaron Liskin (SBN 264268)
4 aliskin@[Link]
Katherine T. Kleindienst (SBN 274423)
5 kkleindienst@[Link]
808 Wilshire Boulevard, 3rd Floor
6 Santa Monica, California 90401
Telephone: 310.566.9800
7 Facsimile: 310.566.9850

8 Attorneys for Defendants

MJJ Productions, Inc. and MJJ Ventures, Inc.
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
KINSELLA WEITZMAN ISER KUMP LLP

TEL 310.566.9800 • FAX 310.566.9850

11 COUNTY OF LOS ANGELES

808 WILSHIRE BOULEVARD, 3RD FLOOR
SANTA MONICA, CALIFORNIA 90401

12

13 WADE ROBSON, an individual, Case No. BC 508502

[Related to Case No. BP117321 and Case No.
14 BC545264]
Plaintiff
15 Assigned to the Hon. Mark A. Young

16 NOTICE OF RULING GRANTING

MJJ PRODUCTIONS, INC., a California DEFENDANTS’ MOTION FOR
17 corporation; MJJ VENTURES, INC., a SUMMARY JUDGMENT
California corporation; and DOES 4-50,
18 inclusive,
Date: April 20, 2021
19 Defendants. Time: 8:30 a.m.

20 Action Filed: May 10, 2013

Trial Date: N/A
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NOTICE OF RULING
 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on Monday, April 26, 2021, Defendants’ motion for

3 summary judgment or, in the alternative, summary adjudication came on for regular hearing

4 before the Hon. Mark A. Young in Department M of the Los Angeles Superior Court. Jonathan

5 Steinsapir and Katherine T. Kleindienst, of Kinsella Weitzman Iser Kump LLP, appeared for

6 Defendants MJJ Productions, Inc., and MJJ Ventures, Inc. Vince W. Finaldi and Alex Cunny, of

7 Manly, Stewart & Finaldi, appeared for Plaintiff Wade Robson. Prior to the hearing, the Court

8 circulated a tentative ruling, attached hereto as Exhibit A. After hearing argument from counsel,

9 the Court adopted its tentative ruling as its final ruling, and therefore granted the motion for
10 summary judgment in favor of Defendants and against Plaintiff. The Court then instructed
KINSELLA WEITZMAN ISER KUMP LLP

TEL 310.566.9800 • FAX 310.566.9850

11 Defendants’ counsel to provide this notice along with a proposed judgment in favor of Defendants.
808 WILSHIRE BOULEVARD, 3RD FLOOR
SANTA MONICA, CALIFORNIA 90401

12

13 DATED: April 26, 2021 Respectfully Submitted:

14 KINSELLA WEITZMAN ISER KUMP LLP

15

16 By:
17 Jonathan P. Steinsapir
Attorneys for Defendants
18 MJJ Ventures, Inc. and MJJ Productions, Inc.
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NOTICE OF RULING
EXHIBIT A
CASE NAME: WADE ROBSON v. DOE 1 ET AL
CASE NO.: BC508502
MOTION: Motion for Summary Judgment, or in the Alternative, Summary
Adjudication
HEARING DATE: 04/20/2021
Basis for Motion

Defendants seek summary judgment, or in the alternative, summary adjudication as follows:

1. All causes of action fail as a matter of law, because there is no triable issue as to any
material fact sufficient to permit a rational trier of fact to conclude that Defendants’
allegedly tortious acts or omissions were “a legal cause of the [alleged] childhood sexual
assault,” Code Civ. Proc. §§ 340.1(a)(2) & 340.1(a)(3), in order for the causes of action
to come within the scope of subdivisions (a)(2) and (a)(3) of Code of Civil Procedure
section 340.1 (and the causes of action are therefore untimely); and/or as required by the
elements of the substantive causes of action themselves (all of which require legal
causation, i.e., proximate causation).

2. The Second through Fifth Causes of Action, all of which are based in negligence, fail as a
matter of law because there is no triable issue as to any material fact sufficient to permit a
rational trier of fact to conclude that Defendants had duties of care towards Plaintiff as
alleged in the Complaint.

3. The Second Cause of Action for “Negligence” in the Complaint based on the negligence
per se doctrine fails as a matter of law, because there is no triable issue as to any material
fact sufficient to permit a rational trier of fact to conclude that any of the pertinent
employees of Defendants were mandated reporters under the Child Abuse and Neglect
Reporting Act (CANRA), Penal Code §§ 11166 et seq. in effect at the time. Also, the
negligence per se doctrine does not create a duty of care in any event; it only sets the
standard of care when duty has first been established independently. There is no duty of
care here.

4. The Third and Fourth Causes of Action for “Negligent Retention/Hiring” and “Negligent
Supervision” in the Complaint fail as a matter of law, because there is no triable issue as
to any material fact sufficient to permit a rational trier of fact to conclude that Defendants
had the duty or ability to decline to hire Michael Jackson in the first place, to fire him or
to supervise him. There is also no triable issue as to any material fact sufficient to permit
a rational trier of fact to conclude that the alleged tortious conduct by Jackson against
Plaintiff arose out of or was generated by the employment relationship between Jackson
and the Defendants.

5. The Fifth Cause of Action for “Negligent Failure to Train, Warn, or Educate” fails as a
matter of law, because there is no triable issue as to any material fact sufficient to permit
a rational trier of fact to conclude that Defendants had a duty to train, warn or educate
Plaintiff, his parents, the authorities, Defendants’ employees, or anyone else about the
dangers of sexual abuse generally or about the alleged dangers of Michael Jackson
specifically.

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 6. The First Cause of Action for Intentional Infliction of Emotional Distress (“IIED”) fails
as a matter of law, because there is no triable issue as to any material fact sufficient to
permit a rational trier of fact to conclude that Defendants themselves (as opposed to,
allegedly, Michael Jackson personally) engaged in extreme and outrageous conduct.
Also, this cause of action fails because, as alleged by Plaintiff, it is a claim for “direct
perpetrator liability” and is therefore not cognizable under Code of Civil Procedure
section 340.1 (and is therefore untimely). There is no triable issue as to any material fact
showing otherwise.

7. The Sixth Cause of Action for Breach of Fiduciary Duty fails as a matter of law, because
there is no triable issue as to any material fact sufficient to permit a rational trier of fact to
conclude that Defendants were in a fiduciary relationship with Plaintiff and/or that
fiduciary duties were breached.

In addition, and in the alternative, Defendants move for judgment on the pleadings as to
each cause of action because they contend that the operative Complaint does not, and cannot,
allege facts sufficient to constitute valid and timely causes of action for each cause of action.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide
courts with a mechanism to cut through the parties’ pleadings in order to determine whether,
despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl.
Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision
(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all
inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or
evidence, show that there is no triable issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
[Link].4th 1110, 1119.)

“The supporting papers shall include a separate statement setting forth plainly and
concisely all material facts which the moving party contends are undisputed. Each of the
material facts stated shall be followed by a reference to the supporting evidence. The failure to
comply with this requirement of a separate statement may in the court's discretion constitute a
sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c(b)(1); see also Cal. Rules
of Court, rule 3.1350(c)(2) & (d).)

“The opposition papers shall include a separate statement that responds to each of the
material facts contended by the moving party to be undisputed, indicating if the opposing party
agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and
concisely any other material facts the opposing party contends are disputed. Each material fact
contended by the opposing party to be disputed shall be followed by a reference to the supporting
evidence. Failure to comply with this requirement of a separate statement may constitute a
sufficient ground, in the court's discretion, for granting the motion.” (Code Civ. Proc., §
437b(b)(3) (emphasis added).)

“On a motion for summary judgment, the initial burden is always on the moving party to
make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log

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Homes, Inc. (2005) 128 [Link].4th 1510, 1519.) The moving party is entitled to summary
judgment if they can show that there is no triable issue of material fact or if they have a complete
defense thereto. (Aguilar v. Atlantic Richfiend Co. (2001) 25 Cal.4th 826, 843.)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1)
identify the issues framed by the pleadings; (2) determine whether the moving party has negated
the opponent's claims; and (3) determine whether the opposition has demonstrated the existence
of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 [Link].4th
289, 294.) Pursuant to Code of Civil Procedure section 437c(p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause
of action has no merit if that party has shown that one or more elements of the cause
of action, even if not separately pleaded, cannot be established, or that there is a
complete defense to that cause of action. Once the defendant or cross-defendant has
met that burden, the burden shifts to the plaintiff or cross-complainant to show that
a triable issue of one or more material facts exists as to that cause of action or a
defense thereto. The plaintiff or cross-complainant may not rely upon the mere
allegations or denials of its pleadings to show that a triable issue of material fact
exists but, instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action or a defense thereto.
When deciding whether to grant summary judgment, the Court must consider all of the
evidence set forth in the papers, except evidence to which the Court has sustained an
objection, as well as all reasonable inferences that may be drawn from that evidence, in the light
most favorable to the party opposing summary judgment. (Avivi, 159 Cal. App. 4th at 467.)

“A moving defendant now has two means by which to shift the burden of proof under
subdivision (o)(2) of section 437c to the plaintiff to produce evidence creating a triable issue of
fact. The defendant may rely upon factually insufficient discovery responses by the plaintiff to
show that the plaintiff cannot establish an essential element of the cause of action sued upon….
Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an
essential element of the plaintiff's cause of action.” (Brantley v. Pisaro (1996) 42 [Link].4th
1591, 1598. See also Code Civ. Proc., § 437c(p)(2).) A moving defendant must show that
plaintiff cannot reasonably obtain evidence to prove a cause of action, which is more than simply
arguing that there is an absence of evidence. (Gaggero v. Yura (2003) 108 [Link].4th 884,
891.) A motion for summary adjudication shall be granted only if it completely disposes of a
cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ.
Proc., § 437c(f)(1).)

EVIDENTIARY OBJECTIONS1

Plaintiff submits 24 objections to the evidence offered in support for the Motion for Summary
Judgment.

1
The Court notes that Plaintiff included full deposition transcripts. California Rules of Court, Rule 3.1116(b)
provides, “Other than the title page, the exhibit must contain only the relevant pages of the transcript. The original
page number of any deposition page must be clearly visible.” (CRC Rule 3.1116(b).) Plaintiff does not cite entire
depositions. Plaintiff should have only included the portions that were cited in the opposition, and should have
highlighted the relevant portions in “a manner that calls attention to the testimony.”

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Plaintiff submits objections to the declaration of John Branca, (1-15) the testimony of Jolie
Levine (16-19) and Gayle Goforth (20), and certain exhibits (21-24)

Declaration of John Branca

Objection no. 1 – sustained
Objection no. 2 – overruled
Objection no. 3 – sustained in part “after he spoke to Paul McCarthy about the subject.”
Objection no. 4 – sustained
Objection no. 5 – sustained
Objection no. 6 – overruled.
Objection no. 7 – overruled.
Objection no. 8 – overruled.
Objection no. 9 – overruled.
Objection no. 10 – overruled.
Objection no. 11 – overruled.
Objection no. 12 – overruled.
Objection no. 13 – overruled.
Objection no. 14 – overruled.
Objection no. 15 – overruled.

Deposition testimony of Jolie Levine

Objection no. 16 – overruled.
Objection no. 17 – overruled
Objection no. 18 – overruled
Objection no. 19 – overruled.

Deposition testimony of Gayle Goforth

Objection no. 20 – overruled.

Objections to exhibits
Objection no. 21 – overruled (Defs.’ Exhibit 18.)
Objection no. 22 – overruled (Defs.’ Exhibit 19.)
Objection no. 23 – overruled (Defs.’ Exhibit 21.)
Objection no. 24 – sustained (Defs.’ Exhibit 22.)

Defendants submits 14 objections to the evidence offered in opposition to the Motion for
Summary Judgment.
Declaration of Alex Cunny
Objection no. 1 – sustained. (Pl.’s Exhibit 22)
Objection no. 2 – sustained. (Pl.’s Exhibit 23)
Objection no. 3 – sustained. (Pl.’s Exhibit 24)
Objection no. 4 – sustained. (Pl.’s Exhibit 25)
Objection no. 5 – sustained. (Pl.’s Exhibit 26)
Objection no. 6 – sustained. (Pl.’s Exhibit 31)
Objection no. 7 – sustained. (Pl.’s Exhibit 32)
Objection no. 8 – sustained. (Pl.’s Exhibit 38.)

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Objection no. 9 – sustained. (Pl.’s Exhibit 39.)
Objection no. 10 – sustained. (Pl.’s Exhibit 40.)
Objection no. 11 – sustained. (Pl.’s Exhibit 41.)
Objection no. 12 – sustained. (Pl.’s Exhibit 42.)
Objection no. 13 – sustained. (Pl.’s Exhibit 44.)
Objection no. 14 – sustained. (Pl.’s Exhibit 45.)

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests judicial notice of Exhibits 35, 36, 41, 44, 48, and 50.

The Court takes judicial notice of Exhibit 35. The Court takes judicial notice that Exhibit
36 exists but does not take judicial notice of hearsay statements contained therein. The Court
takes judicial notice of Exhibits 48 and 50 as court records but does not take judicial notice of
hearsay statements contained with the Court’s rulings. The Court denies the request for judicial
notice as to Exhibits 41 and 44 since the Court sustained evidentiary objections to these
documents.

ANALYSIS

Second, third, fourth, and fifth causes of action - Negligence claims

Plaintiff Wade Robson alleges four distinct negligence causes of action, including (1) the
second cause of action for negligence, (2) the third cause of action for negligent supervision, (3)
the fourth cause of action for negligent retention/hiring, and (4) the fifth cause of action for
negligent failure to warn. The elements of negligence are (1) the existence of a legal duty of
care, (2) breach of that duty, and (3) proximate cause resulting (4) in an injury. (McIntyre v.
Colonies-Pacific, LLC (2014) 228 [Link].4th 664, 671.)

Defendants argue that they are entitled to summary judgment because Plaintiff cannot
prove proximate cause. Defendants further argue that under section 340.1, “legal cause” is
required, which cannot be proven in this case. “In an action for recovery of damages suffered as
a result of childhood sexual assault . . . for any of the following actions: . . . (2) An action for
liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or
negligent act by that person or entity was a legal cause of the childhood sexual assault that
resulted in the injury to the plaintiff. [or] (3) An action for liability against any person or entity if
an intentional act by that person or entity was a legal cause of the childhood sexual assault that
resulted in the injury to the plaintiff.” (Code Civ. Proc., § 340.1(a)(2), (3).) “Proximate cause is
legal cause, as distinguished from the layman's notion of actual cause, and is always, in the first
instance, a question of law.” (Tate v. Canonica (1960) 180 [Link].2d 898, 901.) However, “It
becomes a question of fact when conflicting inferences or conclusions can be drawn from the
evidence within the area of proximate cause as legally defined.” (Ibid.)

In opposition, Robson argues that Defendants attempt to provide a “cart before the horse”
analysis with respect to “legal cause.” The Court agrees that it does not need to address the issue
of legal cause unless the Court finds that there is a duty owed by the Corporations to Robson.
Therefore, the Court first addresses Defendants’ duty arguments.

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 Defendants argue that they are entitled to summary judgment, or in the alternative,
summary adjudication, on the negligence causes of action because Defendants did not owe
Robson a legal duty. Defendants contend that there was no special relationship that would give
rise to a legal duty for the Corporations to protect Robson from the alleged molestation, and as
such, Defendants cannot be held liable for mere nonfeasance. In response, Robson argues that
Civil Code section 1714 and the special relationship doctrine created a duty in this case. Robson
argues that Defendants had an affirmative duty to protect him as a child from foreseeable sexual
abuse from Jackson because of this special relationship. Robson’s basis for the special
relationship is that Defendants’ hired Robson.

Duty is a question of law for the court. (Conti v. Watchtower Bible & Tract Society of
New York, Inc. (2015) 235 [Link].4th 1214, 1226.) “‘[A]s a general rule, one owes no duty to
control the conduct of another, nor to warn those endangered by such conduct.’” (Id. at 1226
[quoting Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129].) The “special
relationship” doctrine is an exception to this general rule. (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 627 [Citations omitted.].) “Special relationships also have
defined boundaries. They create a duty of care owed to a limited community[.]” (Id. at 621.) For
example, a duty arising out of a “special relationship” in the context of a university is limited and
“extends to activities that are tied to the school’s curriculum but not to student behavior over
which the university has no significant degree of control.” (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 627.) “A basic requisite of a duty based on a special
relationship is the defendant's ability to control the other person's conduct. [Citation.].’” K.G. v.
S.B. (2020) 46 [Link].5th 625, 631 [quoting Smith v. Freund (2011) 192 [Link].4th 466,
473].) “The absence of an ability to control is fatal to a claim of legal responsibility.” (Todd v.
Dow (1993) 19 Cal. App. 4th 253, 259.)

Defendants argue that there are no facts, or even disputed facts, that give rise to a special
relationship between Robson and the Defendants. Defendants contend that the undisputed
evidence demonstrates that the Corporations had no ability to control the behavior of Michael
Jackson, and as a result, there is no special relationship. Defendant MJJ Productions was
incorporated in California in 1979 as “Michael Jackson Productions, Inc.” and its name was
changed to “MJJ Productions, Inc.” in 1982. (UF 6 [Branca Decl. ¶¶ 9-10, Exs. 1-4].) Jackson
was MJJ Productions’ sole shareholder at all times until his death. (UF 7 [Branca Decl. ¶ 10; Ex.
21 ¶ 8].) MJJ Ventures was incorporated in 1991. (UF 8 [Branca Decl. ¶ 16; Exs. 6-9].) Jackson
was also MJJ Ventures’ sole shareholder at all times until his death. (UF 9 [Branca Decl. ¶ 3; Ex.
22 ¶ 8].) Defendants argue and present undisputed evidence that during all times relevant to this
case until June 1, 1994, Jackson was the sole director of both Corporations. (UF 46, 51 [Branca
Decl. ¶¶ 12, 16; Exs. 3, 9].) Defendants also present evidence that on June 1, 1994, as sole
shareholder and director of both Corporations, Jackson increased the size of the Board of
Directors of both Corporations from one director to four directors, with Jackson, John Branca,
Marshall Gelfand (Jackson’s business manager), and Sandy Gallin (Jackson’s talent manager) as
the four directors of both Corporations. (UF 47, 52 [Branca Decl. ¶¶ 12, 18; Exs. 5, 10].)

In opposition, Plaintiff argues that the evidence demonstrates that Defendants did have
control over Jackson and chose to not exert it. (Citing PMF 1-19.) In support of this position,
Plaintiff relies upon evidence submitted by Defendants’ containing the governing language of
MJJ Productions and MJJ Ventures, as well as the number of directors on the boards of each
entity. (See PMFs 4 -10.). Plaintiffs argue that this shows that Defendants had the ability to

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control Jackson and chose not to exert it. Plaintiff also argues that certain employees of
Defendants’ had the ability to control Jackson. Finally, Plaintiff contends that Defendants had a
duty to protect foreseeable victims of child sexual abuse such as himself.

In reply, Defendants argue that this evidence does not create a triable issue of material
fact as to control. Defendants argue that under Corporations Code section 603(d) and
Corporations Code section 303(a), Jackson had the power to remove members of the respective
boards at will because he was the sole shareholder of the companies. Corporations Code section
303 provides, “Any or all of the directors may be removed without cause if the removal is
approved by the outstanding shares . . ..” (Corp. Code, § 303(a).). In support of this position that
Jackson had complete control, Defendants point to Plaintiff’s own evidence that on prior
occasions Jackson had in fact overruled two employees. (See Cunny Decl., Ex. 7 74:22-75:17
(Vol. 3).)

The issue for the Court on summary judgment/adjudication is whether Defendants have
shifted the burden, and if so, whether Plaintiffs have raised a disputed issue of material fact as to
whether Defendants owed Plaintiff a legal duty. The issue of legal duty in this matter centers on
whether there are disputed facts as to whether Jackson had complete legal authority over
Defendants, or whether Defendants could control Jackson’s business affairs or personal life. As
set forth herein, the Court concludes that there are no disputed relevant facts as to this issue. A
combination of the California Corporations Code, and the undisputed fact that Jackson was the
sole director (until June 1994) and shareholder of the Corporations, leads the Court to conclude
that Defendants had no actual ability to control Jackson. As the sole shareholder of both
Defendants, Jackson had the sole authority to remove any and all of the board members without
cause or notice, and reinstate himself as the sole board member. (Corp. Code §§ 303(a) and
603(a).) Thus, even when there were three additional board members appointed in 1994, they all
served at the pleasure of Michael Jackson. Any attempts at discipline would be futile because
Defendants had no legal ability to control Jackson. (Cf. Coit Drapery Cleaners Inc. v. Sequoia
Ins. Co. (1993) 14 [Link].4th 1595, 1605 (in dicta, the court recognized the futility of a
corporation attempting to discipline or supervise its majority shareholder who was also its
president and chairman of the board.)

As to other employees exerting control over Jackson, Plaintiff’s evidence in support of

this contention does not support that position, or create a material issue of disputed fact as to
control. For instance, in PMF 15, Plaintiff states that “Defendants’ employees were required to
follow Staikos’ [a employee of Defendants] instructions, even if Jackson himself gave different
orders. Staikos’ orders controlled” and relies upon the testimony of Charli Michaels to support
this position. Michaels’ testimony, however, does not support the broad and powerful
proposition offered in PMF 15. Michaels was referring to Staikos’ instructions not to deliver
items into Jackson’s bedroom, but to leave them in the kitchen, even if Jackson asked otherwise.
(See Cunny Decl., Ex. 3 163:24-164:10 (Vol. 2).) Moreover, Defendants’ objection that the
answer misstated the witness’ testimony was preserved at the deposition and is well taken. (Id.,
Ex. 3 164: 11-12.) As such, Michaels’ testimony does not support the contention that
Defendants’ employees could control Jackson’s personal or professional life other than the
placement of packages arriving at the residence. Moreover, while Ms. Staikos or Mr. Bray had
the authority to hire and fire employees of the Defendants, there is no evidence that they held
power over Jackson or his personal actions.

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 The lack of control is further illustrated by the location where the abuse is alleged to have
occurred – Neverland Valley Ranch and a condominium nicknamed “The Hideout,” which were
owned solely by Jackson and not by the corporate Defendants. (See FAC ¶¶ 22 and 25; UMF
10.) Defendants submit evidence that they had no authority to govern Jackson’s ingress and
egress from these locations, control who visited him at these locations, or govern procedures
regarding visitors to these locations. (UMF 12; Branca Decl., ¶ 24.) While Plaintiff disputes this
fact, Plaintiff does not submit any evidence in support of that position, other than Defendants’
corporate structure and board of directors, which is irrelevant to this issue. (Plaintiff’s Resp. to
UMF 12; PMF 4-10.) Plaintiff does not submit any evidence that Defendants could control
Jackson’s behavior at these two locations.

Since Plaintiff cannot create a material issue of disputed fact as to the existence of a
special relationship between Defendants and Plaintiff, Plaintiff would be required to show
misfeasance on the part of Defendants. In his opposition, Plaintiff conflates misfeasance and
nonfeasance. As stated, liability or duty “may not be premised on a defendant’s nonfeasance if
the defendant did not create the peril.” (Todd, 19 Cal. App. 4th at 260.) Plaintiff’s reliance on
Lugtu v. Cal. Highway Patrol, (2001) 26 Cal. 4th 703 is misplaced since that matter involved
misfeasance, or the creation of the peril, specifically, the officer’s directing of the driver to stop
in a center median of the freeway where they were later struck by a truck. (Id. at 716-17.) The
facts submitted by Plaintiff do not support the conclusion that Defendants created the peril (i.e.
Jackson), but at most, after Plaintiff and Jackson had connected (UF 14-17 and 19-21), and after
Plaintiff was first molested by Jackson (UF 22-23), Defendants provided transportation, security
and similar services. (PMF 25-28 and 51-56.)

There is no evidence supporting Plaintiff’s contention that Defendants exercised control

over Jackson. The evidence further demonstrates that Defendants had no legal ability to control
Jackson, because Jackson had complete and total ownership of the corporate defendants. Without
control, there is no special relationship or duty that exists between Defendants and Plaintiff. In
addition, there is no evidence of misfeasance by Defendants. Thus, Plaintiff’s negligence claims
fail and Defendants are entitled to summary adjudication on the second through fifth causes of
action.

First Cause of Action: Intentional Infliction of Emotional Distress

Defendants argue that they are entitled to summary adjudication on the first cause of
action for intentional infliction of emotional distress (“IIED”) because Plaintiff cannot
demonstrate “extreme and outrageous conduct” by Defendants. In support of this position,
Defendants point to paragraphs 88 and 89 in the fourth amended complaint and argue that there
is nothing outrageous about a sole shareholder, in this case Jackson, holding a position of
authority that permits that person to conduct his own business affairs. Defendants also point to
evidence that contradicts Plaintiff’s allegations in paragraph 88. Defendants argue that they did
not put Jackson in positions of authority and that the evidence shows that Jackson created and
had ultimate control over the corporations as a result of being the sole shareholder. (UF 7, 9, 45,
49, 50, 54.) Defendants further argue that corporations are not “persons” under Code of Civil
Procedure section 340.1(a)(1) and cannot be held liable for intentional infliction of emotional
distress under that code section, citing Boy Scouts of America National Foundation v. Superior
Court (2012) 206 [Link].4th 428, 445. Defendants also contend that the evidence does not

8
show that Plaintiff was procured by the corporations. (UF 13-23.). Defendants also argue that
they cannot be held vicariously liable for their employee’s torts.

In opposition, Plaintiff argues that Defendants are liable because they facilitated the
abuse and procured children for Jackson. (Opp. 19-20; PMF 24-32 and 39-82.) Plaintiff does
not argue, or put forth evidence, in support of his complaint’s allegations set forth in paragraphs
88-89 regarding Defendants placing Jackson in a position of authority or failing to supervise
Jackson. Plaintiff also argues that an institution can be held liable, relying upon Hightower v.
Roman Catholic Bishop of Sacramento (2006) 142 [Link].4th 759. In reply, Defendants argue
that they cannot be held directly liable under Code of Civil Procedure section 340.1(a)(1) and
that such claims fail as matter of law under Boy Scouts of America.

In Boy Scouts of America, the Court of Appeal in the context of the statute of limitations
rejected liability for IIED for a corporation under section 340.1(a)(1). (Boy Scouts of America,
206 [Link].4th at 444-45.) The Court explained, “Even assuming that plaintiffs' action was
brought against the Boy Scouts in the capacity of perpetrators (whether as aiders and abettors or
as child procurers under Penal Code section 266j), the Boy Scouts remain, as alleged in the
complaint, corporate entities to which subdivision (a)(1) of section 340.1 does not apply.” (Id. at
445; see also Pen. Code, § 266j [“Any person who intentionally gives, transports, provides, or
makes available, or who offers to give, transport, provide, or make available to another person, a
child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288,
or who causes, induces, or persuades a child under the age of 16 to engage in such an act with
another person, is guilty of a felony and shall be imprisoned in the state prison for a term of
three, six, or eight years, and by a fine not to exceed fifteen thousand dollars ($15,000).”]) The
Court reasoned that 340.1(a)(1) did not apply to the Boy Scouts because the legislature omitted
entities from that subdivision -- “[a] ‘person’ for purposes of subdivision (a)(1) may not be
defined to include an entity defendant. [Such] interpretation is confirmed by the legislative
history of section 340.1, subdivisions (a)(1)–(3) and (b)(1).” (Id. at 447.) While Plaintiff relies
upon Hightower, 142 [Link].4th 759, that matter involved section 340.1’s limitations period,
and the delayed discovery rule and not the entity exclusion of section 340.1. Hightower, 142
[Link].4th at 768.

Since Plaintiff admits that he is attempting to hold Defendants directly liable under a
theory of procurement, i.e. direct liability for sexual abuse, and since such claims are not
available against entities, Defendants are entitled to summary adjudication on this claim.

Sixth Cause of Action: Breach of Fiduciary Duty

Defendants argue that they are entitled to summary adjudication on the sixth cause of
action because there is no triable issue of material fact as to whether a fiduciary relationship
between Plaintiff and Defendants existed or whether those fiduciary duties were breached.

“Whether a fiduciary duty exists is generally a question of law. [Citation.]” (Amtower v.

Photon Dynamics, Inc. (2008) 158 [Link].4th 1582, 1599, 71 [Link].3d 361.) A fiduciary
relationship is created when a party either (1) knowingly undertakes to act on behalf and for the
benefit of another, or (2) enters into a relationship which imposes that undertaking as a matter of
law. (City of Hope Nat. Med. Ctr. v. Genentech, Inc., (2008) 43 Cal.4th 375, 386 (2008).) “In
general, employment-type relationships are not fiduciary relationships. (Amid v. Hawthorne

9
Community Medical Group, Inc. (1989) 212 [Link].3d 1383, 1391.) In the absence of a
fiduciary relationship, there can be no breach of fiduciary duty as a matter of law. (O'Byrne v.
Santa Monica-UCLA Medical Center (2001) 94 [Link].4th 797, 811–812.)

Defendants argue that there is no evidence that Defendants either undertook an act or
entered into a relationship that would impose such a duty. Defendants argue that the evidence
demonstrates that there were two potential relationships that Plaintiff had with Defendants.
Robson appeared in three music videos for Jackson, and Robson was part of a rap group that
released an album on a label created by MJJ Ventures. (UF 60 – 61.) Defendants argue that this
sort of relationship, performer – studio/record company are not fiduciary in nature citing Wolf v.
Superior Court (2003) 107 [Link].4th 25. Defendants also argue that there is no evidence that
Plaintiff was placed under the care and supervision of either corporation. Defendants contend
that it is undisputed that the corporations were not child care businesses. (UF 63-64.).

In opposition, Plaintiff argues that as a minor employee, he entered into a confidential

and trusting relationship with Jackson. Plaintiff also argues that Defendants had physical
custody of Plaintiff through Jackson. Plaintiff contends Defendants were child care businesses.
In reply, Defendants argue that there is no evidence that Plaintiff was in a confidential
relationship with Defendants individually apart from Jackson. Defendants argue that the
evidence shows that the relationship with Jackson arose independent of the corporations, and
prior to Plaintiff’s employment. (UF 13-23, 31, 33, 34.)

Once again, the issue for the Court is whether there are any disputed facts that could
potentially give rise to the creation of a fiduciary duty. Here, there is no evidence that Plaintiff
was in a trusting relationship with the individual corporate Defendants, even if there is evidence
of such a relationship with Jackson. (See PMF 48-56 (concerning Jackson only).) Plaintiff
further argues that Defendants and Jackson had physical custody of Plaintiff, who was a minor.
Plaintiff, however, has not alleged any facts demonstrating that Defendants had a duty to control
the conduct of Plaintiff as a parent would or that Defendants had physical custody of Plaintiff.
(See Poncher v. Brackett (1966) 246 [Link].2d 769, 773–774 (raw allegations that parents
stood in relation of loco parentis insufficient as a matter of law.) Since the undisputed evidence
shows that Plaintiff did not enter into a relationship with Defendants that would impose a
fiduciary duty, Defendants are entitled to summary adjudication on this cause of action.

10
 1 PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Los Angeles, State of California. My business address is 808 Wilshire
4 Boulevard, 3rd Floor, Santa Monica, CA 90401.

5 On April 26, 2021, I served true copies of the following document(s) described as
NOTICE OF RULING GRANTING DEFENDANTS’ MOTION FOR SUMMARY
6 JUDGMENT on the interested parties in this action as follows:

7
John C. Manley Attorneys for Plaintiff Wade Robson
8 Vince W. Finaldi
Alex E. Cunny Phone: 949-252-9990
9 Manly, Stewart & Finaldi Fax: 949-252-9991
19100 Von Karman Ave., Suite 800 Email: vfinaldi@[Link]
10 Irvine, CA 92612 jmanly@[Link]
KINSELLA WEITZMAN ISER KUMP LLP

acunny@[Link]
TEL 310.566.9800 • FAX 310.566.9850

11 kfrederiksen@[Link]
808 WILSHIRE BOULEVARD, 3RD FLOOR
SANTA MONICA, CALIFORNIA 90401

12  BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the

persons at the addresses listed above and placed the envelope for collection and mailing, following
13 our ordinary business practices. I am readily familiar with Kinsella Weitzman Iser Kump LLP's
practice for collecting and processing correspondence for mailing. On the same day that the
14 correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
15
 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s)
16 to be sent from e-mail address choffman@[Link] to the persons at the e-mail addresses
listed above. I did not receive, within a reasonable time after the transmission, any electronic
17 message or other indication that the transmission was unsuccessful.

18  BY OVERNIGHT DELIVERY: I caused said document(s) to be enclosed in an envelope

or package provided by the overnight service carrier and addressed to the persons at the addresses
19 listed above or on the attached Service List. I caused the envelope or package to be placed for
collection and overnight delivery at an office or a regularly utilized drop box of the overnight
20 service carrier or delivered such document(s) to a courier or driver authorized by the overnight
service carrier to receive documents.
21
I declare under penalty of perjury under the laws of the State of California that the
22 foregoing is true and correct. Executed on April 26, 2021, at Los Angeles, California.

23

24

25
Candace Hoffman
26
10386-00226/736205
27

28

3
NOTICE OF RULING