Safechuck v. MJJ Productions, Inc. ( 2023 )

Filed 8/18/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JAMES SAFECHUCK, B309450
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC545264
v.
MJJ PRODUCTIONS, INC., et al.,
Defendants and Respondents.
WADE ROBSON, B308602, B313436
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC508502
v.
MJJ PRODUCTIONS, INC., et al.,
Defendants and Respondents,
LILY CHANDLER et al.,
Respondents.
APPEALS from judgments and an order of the Superior
Court of Los Angeles County. Mark A. Young, Judge. Judgments
reversed and remanded; sanctions order affirmed.
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. MacIsaac,
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.
_____________________________
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 they had no 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.”
Following the guidance in Brown v. USA Taekwondo (2021)
11 Cal.5th 204 (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
2
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 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.5th 1094.)
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 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.
3
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 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.
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 plaintiff to 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
had rented there. Plaintiff stayed with Jackson, and his parents
stayed in one of the other houses.
4
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 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.1
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” another
bedroom to make it seem as if plaintiff had slept there. Jackson
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.
5
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 several incidents
of suspicious activity at the Neverland Ranch, including finding
Jackson’s and plaintiff’s underwear lying next to Jackson’s bed.
He also saw Jackson put his hand down the front of plaintiff’s
shorts 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
6
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 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-
7
conspirators, collaborators, facilitators and alter egos for the
childhood 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 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 in such conduct with
Plaintiff, and failed to take reasonable steps, and implement
reasonable safeguards, to avoid” such conduct by Jackson in the
future.
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
8
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 “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 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
9
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 of, and cared for, while they
were in contact with [Jackson].”
c. 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 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 and everyone employed by
10
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 plaintiff’s
employers, and the intentional infliction of emotional distress
claim failed because corporations cannot be direct perpetrators of
sex abuse.
The court entered judgment for defendants and against
Safechuck on October 27, 2020, and Safechuck filed a timely
notice of appeal.2
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 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
2 In 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).)
11
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 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 industry. Defendants successfully sponsored
plaintiff for an H-1B visa allowing him to work in the United
States, and hired plaintiff as 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 Neverland Ranch in Jackson’s bedroom, in the
12
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 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.
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,
13
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.
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 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 Robson’s genitals in the dance studio at the
14
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.”
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 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 young 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 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
15
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
winetasting 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”; “[w]ithout control, 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
16
trusting relationship with the individual corporate Defendants,
even if there is evidence of such a relationship with Jackson.”
The trial court entered judgment for defendants on May 5,
2021, and Robson filed a timely notice of appeal.
DISCUSSION
1. The Standard of Review
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 fact or law. We also
consider matters that may be judicially noticed. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
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.” (Id.,
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.5th
536, 542.) It is no longer called a “disfavored” remedy. (Ibid.)
“Summary judgment is now seen as ‘a particularly suitable
means to test the sufficiency’ of the plaintiff’s or defendant’s
case.” (Ibid.) On appeal, “we take the facts from the record that
was before the trial court . . . . ‘ “We review the trial court’s
17
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.)
2. Safechuck and Robson: The Duty Issue
In Brown, the Supreme Court gave directions 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.
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 so, the court must consult
the factors described in Rowland [v. Christian (1968) 69 Cal.2d
108 (Rowland)] to determine whether relevant policy
considerations counsel limiting that duty.” (Brown, supra,
11 Cal.5th 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 Rowland does not counsel limiting defendants’ duty.
a. Legal background
Brown explains the underlying principles.
“To establish a cause of action for negligence, the plaintiff
must show that the ‘defendant had a duty to use due care, that he
18
breached that duty, and that the breach was the proximate or
legal cause of the resulting injury.’ ” (Brown, supra, 11 Cal.5th at
p. 213.) A legal duty of care is the threshold requirement for
recovery. (Ibid.) The existence of a duty is a question of law for
the court. (Ibid.)
Civil Code section 1714 sets forth the “ ‘general rule’ ”
governing duty. (Brown, supra, 11 Cal.5th 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.” (Ibid.) “Generally, ‘ “one
owes no duty to control the conduct of another, nor to warn those
endangered by such conduct.” ’ ” (Ibid.)
The “no-duty-to-protect rule is not absolute, however; [the
Supreme Court] has recognized a number of exceptions.” (Brown,
supra, 11 Cal.5th 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 defendant’s own making.” (Ibid.)
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.5th 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
19
relationship between the defendant and the dangerous third
party is one that ‘entails an ability to control [the third party’s]
conduct.’ ” (Id. 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.5th 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.” (Ibid.)
In Brown, the court summarized: This rule “extends a
right of recovery to individuals in relationships involving
dependence or control, and who by virtue of those relationships
have reason to expect the defendant’s protection.” (Brown, supra,
11 Cal.5th at p. 220.) “ ‘ “[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 plaintiff’s welfare.’ ” ’ ”
(Ibid.) “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.” (Id. at pp. 220–221.)
b. These cases: the special relationship
We are presented here with “special circumstances” that
burdened defendants with a special obligation to offer protection
or assistance (Brown, supra, 11 Cal.5th at p. 220) to plaintiffs.
Plaintiffs were young children—by definition, vulnerable and
dependent upon the adults who took care of them and supervised
20
them. Defendants sometimes employed these children. Plaintiffs
were often in the care and under the supervision of defendants’
employees, wholeft 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 to be alone with
Jackson; and they were aware of the risk that Jackson would
molest the children.
Jackson did not meet the plaintiffs “incidentally”; Jackson
did not unwittingly “stumble upon” them. Defendants employed
both Jackson and the 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
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.
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 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, a special relationship between a
21
defendant and a plaintiff may give rise to the duty to protect the
plaintiff from foreseeable violence irrespective of the defendant’s
ability to control the dangerous third party. We recited from
Brown above the rule that a special relationship may exist either
(1) between the defendant and the victim, giving “ ‘the victim a
right to expect’ protection from the defendant,” or (2) between the
defendant and the dangerous third party, giving the defendant
“ ‘an ability to control [the third party’s] conduct.’ ” (Brown,
supra, 11 Cal.5th at p. 216.)
Three years before its decision in Brown, the Supreme
Court in Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607 held the defendant owed a duty to protect
the plaintiff without deciding whether defendant also had a duty
to control the dangerous third party. (Regents, at p. 620 [“Here,
we have focused on the [defendant’s] duty to protect [the plaintiff]
from foreseeable violence. Having concluded [the defendant] had
a duty to protect [the plaintiff] under the circumstances alleged,
we need not decide whether [the defendant] had a separate duty
to control [the third party’s] behavior to prevent the harm.”].)
Likewise, one of the cases defendants cite, Musgrove v.
Silver (2022) 82 Cal.App.5th 694, 706 (Musgrove) states in clear
terms that a defendant has a duty to protect or assist another if
there is a special relationship “with either (1) the third person
who injures the plaintiff or (2) the plaintiff herself. [Citations.]
The first type of special relationship runs between the defendant
and the third person who injured the plaintiff, and obligates the
defendant to control the third person. [Citations.] The second
type of special relationship runs between the defendant and the
plaintiff, and obligates the defendant to protect the plaintiff.”
22
None of the cases defendants cite departs from the rule
that a defendant in a special relationship with a vulnerable,
dependent plaintiff has a duty to protect that plaintiff. (See, e.g.,
K.G. v. S.B. (2020) 46 Cal.App.5th 625, 631 [parents have no duty
to control adult children]; Barenborg v. Sigma Alpha Epsilon
Fraternity (2019) 33 Cal.App.5th 70, 79 [national fraternities
have no duty to control local chapters or their members].) The
duty analysis in these cases that defendants cite was different,
first, because the victims in those cases were adults, not children,
and second, because there was no special relationship between
the defendants and the victims. Here, the victims were children,
and there was a special relationship between the defendants and
the victims.
Defendants argue that their employment relationship with
plaintiffs did not establish a special relationship. They concede
that “in a run-of-the-mill employment relationship,” the employer
has the ability to control employees but they say they had no
ability to control Jackson because he was their sole shareholder.
Defendants do not tell us where they propose we draw the line
between “run-of-the-mill employment” that gives rise to a duty to
protect and other employment that does not. Defendants offer no
convincing rationale for why the no-duty line should be drawn
where the employer is a corporation with only one shareholder.
More to the point, defendants’ employment of plaintiffs is only
one of several circumstances giving rise to the special
relationship here.
We find particularly inapt defendants’ citation to Musgrove,
supra, 82 Cal.App.5th 694 to support the argument that
plaintiffs’ employment relationship with them was “limited” and
did not create “a wide-reaching special relationship,” and the
23
plaintiffs’ “interactions” with Jackson were “outside the scope of
Robson’s narrow employment, at locations where the
Corporations had no control.” In Musgrove, supra, at page 712,
the court found an employer had no employment-related duty to
protect the adult plaintiff who drowned after using alcohol and
cocaine while in a private bungalow after work hours during a
company-paid trip. We see no analogy between the duty an
employer may owe to an intoxicated adult in a private bungalow
after work hours and the duty defendants owed to the young
children they sometimes employed, housed, fed, cared for, and
often arranged to be left alone with Jackson.
We could go on distinguishing cases, but the point is there
are no comparable precedents. Here, defendants employed
Jackson and knew he was a danger to young boys. Defendants
employed the child victims and employed the staff who ran
Jackson’s residences and adopted policies and operations
enabling Jackson to be alone with plaintiffs. Defendants’
employees, officers and directors had some control over and
responsibility for plaintiffs’ welfare, and defendants were on
notice of the danger. They were best situated to prevent the
alleged injuries. (See Kesner v. Superior Court (2016) 1 Cal.5th
1132, 1153.) It is these “particular facts and circumstances”
(Brown, supra, 11 Cal.5th at p. 221) that make these cases
different from all the other cases defendants cite.
So far, our analysis has focused on the special relationship
between defendants and plaintiffs giving plaintiffs the right to
expect protection from Jackson. We now address the special
relationship between defendants and Jackson. We reject
defendants’ contention they had no control over plaintiffs’ welfare
on the theory they were unable to control Jackson because he was
their sole shareholder. Defendants say Jackson had the
24
authority to remove or fire anyone—any director, any officer or
any employee with the temerity to make any attempt to protect
the minor victims from his sexual abuse. Therefore, they say,
they are absolved as a matter of law from the duty any other
entity might otherwise have to protect the child victims.
Any director, employee or other agent of defendants who
knew of or suspected abuse could have done something to protect
plaintiffs’ welfare: issued warnings, gone to police, confronted
Jackson. Yes, the likely consequence of protecting plaintiffs
would have been termination of employment or removal from the
board of directors. But a director or employee’s risk of removal or
termination if they acted to protect plaintiffs does not mean they
could not act. It means they risked losing their positions and
compensation if they acted. That is not the same as an inability
to act.
Brown, in discussing the no-duty-to-act rule, explained
that one reason why the rule has endured in the common law is
the difficulty “ ‘ “of setting any standards of unselfish service to
fellow men” ’ ” and “ ‘ “making any workable rule to cover possible
situations where fifty people might fail to rescue.” ’ ” (Brown,
supra, 11 Cal.5th at pp. 214–215.) However, we find no difficulty
in setting a legal duty to act under the circumstances here, and
we do not believe that any group of 50 people would fail to act
under these circumstances. Among any hypothetical group of
50 people, some or all might be reluctant to act due to guilt,
shame, or fear of consequences. But we do not believe we set too
high a standard of “unselfish service” to the children of “fellow
men” in concluding defendants’ agents had a duty to jeopardize
their positions and compensation to protect plaintiffs.
25
c. This case: the Rowland factors
That brings us to the second step of the Brown inquiry:
determining “whether relevant policy considerations counsel
limiting” defendants’ affirmative duty to protect plaintiffs.
(Brown, supra, 11 Cal.5th at p. 209.)
The Rowland considerations include “the foreseeability of
harm to the plaintiff, the degree of certainty that the plaintiff
suffered injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame
attached to the defendant’s conduct, the policy of preventing
future harm, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise
care with resulting liability for breach, and the availability, cost,
and prevalence of insurance for the risk involved.” (Rowland,
supra, 69 Cal.2d at p. 113.) The inquiry “hinges not on mere rote
application of the[] separate so-called Rowland factors, but
instead on a comprehensive look at the ‘ “ ‘ “sum total” ’ ” ’ of the
policy considerations at play in the context before us.” (Southern
California Gas Leak Cases (2019) 7 Cal.5th 391, 399.)
As Brown tells us, “ ‘In considering [the Rowland factors],
we determine “not whether they support an exception to the
general duty of reasonable care on the facts of the particular case
before us, but whether carving out an entire category of cases
from that general duty rule is justified by clear considerations of
policy.” ’ ” (Brown, supra, 11 Cal.5th at p. 221.)
Defendants contend that we should carve out cases “where
the alleged perpetrator completely controlled the defendant
entities.” Defendants’ arguments are again premised on the
notion they “had no control over” Jackson, citing “basic tenets of
corporate hierarchy.” They raise the specter of “low-level
26
employees” being exposed to defamation liability and that future
harm would not be prevented because employees “would likely be
fired and replaced by another,” and that “it is doubtful that
insurance would be available.” They conclude by saying public
policy “does not warrant imposing a tort duty on corporations to
police their sole shareholders . . . , as a loophole for plaintiffs who
fail to timely sue the perpetrator or his estate.”
Defendants scarcely mention one of the primary policy
considerations: the foreseeability of sexual abuse where minors
are both employed by corporations and are frequently left alone
with the known or suspected perpetrator. (Cf. Brown v. USA
Taekwondo (2019) 40 Cal.App.5th 1077, 1098 [“It is reasonably
foreseeable some coaches, allowed to be alone with youth
athletes, would sexually abuse the athletes during road trips and
overnight stays.”].) Defendants omit any reference to the degree
of certainty that the plaintiffs suffered injury. They assert there
was “no close connection” between their conduct and plaintiffs’
sexual abuse, blaming it all on families seeking a personal
relationship with Jackson and allowing their children to sleep in
Jackson’s bedroom. They attach no moral blame to their conduct,
insisting they could not protect plaintiffs.
We do not agree. It is obvious to us that the policy
considerations identified in Rowland do not justify—clearly or
otherwise—carving out solely-owned corporations from the
affirmative duty to protect and to warn that arises from the
special relationships we have found to be present in these cases.
On the contrary, the “ ‘ “ ‘ “sum total” ’ ” ’ of the policy
considerations at play in the context before us” (Southern
California Gas Leak Cases, supra, 7 Cal.5th at p. 399) demands
27
that we decline to find a categorical exception based on corporate
structure.
3. Safechuck and Robson: Other Negligence Issues
Defendants contend that, even if they had an affirmative
duty to protect plaintiffs, the causes of action for negligent
supervision, negligent retention/hiring, and negligent failure to
warn, train or educate fail for other reasons. Again, none of the
cases defendants cite is apt authority because the facts and legal
issues were entirely different, thus driving an entirely different
duty analysis. (Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co.
(1993) 14 Cal.App.4th 1595, 1599, 1605 [insurer not liable for
costs of defending and settling sex harassment claim; the plaintiff
did not allege negligent supervision]; Doe v. United States Youth
Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1138 [youth soccer
association had a duty to conduct criminal background checks of
adults who would have contact with children in their programs,
but no duty to warn about general risk of sex abuse; association
did not know or suspect abuse by a specific person]; Conti v.
Watchtower Bible & Tract Society of New York, Inc. (2015)
235 Cal.App.4th 1214, 1226–1227 [church had no duty to warn its
congregation that one of its members had molested a child].)
4. Safechuck and Robson: Other Causes of Action
a. Intentional infliction of emotional distress
“A cause of action for intentional infliction of emotional
distress exists when there is ‘ “ ‘ “(1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.]
28
A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as
to exceed all bounds of that usually tolerated in a civilized
community.’ ” ’ [Citation.] And the defendant’s conduct must be
‘ “ ‘intended to inflict injury or engaged in with the realization
that injury will result.’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th
1035, 1050–1051.)
Defendants assert there is no evidence of extreme and
outrageous conduct, that is, no evidence their employees
arranged Robson’s visits “with knowledge and intent of making
him available for the purpose of being abused.” But there is
evidence defendants knew of Jackson’s dangerous proclivities; it
is for a jury to decide whether defendants acted either with intent
or with reckless disregard of the probability of causing emotional
distress.
b. Breach of fiduciary duty
“The elements of a cause of action for breach of fiduciary
duty are the existence of a fiduciary relationship, breach
of fiduciary duty, and damages.” (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 820.) “ ‘[B]efore a person can be
charged with a fiduciary obligation, he must either knowingly
undertake to act on behalf and for the benefit of another, or must
enter into a relationship which imposes that undertaking as a
matter of law.’ ” (City of Hope National Medical Center v.
Genentech, Inc. (2008) 43 Cal.4th 375, 386 (City of Hope).)
Here, we have concluded the special relationship between
defendants and plaintiffs resulted in an affirmative duty to
protect and warn plaintiffs. In other words, defendants
“ ‘enter[ed] into a relationship which imposes’ ” an undertaking
“ ‘to act on behalf and for the benefit of another’ ” (City of Hope,
supra, 43 Cal.4th at p. 386), as a matter of law.
29
5. Robson: Causation
Defendants contend we must affirm summary judgment in
Robson’s case, on all causes of action, because we review the
ruling of the trial court, not its rationale. They say there was no
evidence their conduct was the legal cause of Robson’s alleged
sexual abuse. Defendants sought summary judgment on this
ground, but the trial court did not reach the question, instead
finding, erroneously, that defendants had no duty to protect
plaintiff.
The essence of defendants’ argument is that nothing
defendants could have done—reporting Jackson to authorities, or
warning Robson’s family, or refusing to facilitate Jackson’s being
alone with young boys while knowing Jackson was dangerous,
and so on—would have prevented the sexual abuse. As support,
they point to undisputed evidence that Robson’s mother believed
Jackson was innocent when allegations were made in 1993 that
he had molested another boy, even after the police questioned
her; she was called to testify before a grand jury in 1994, and in a
civil deposition; and nonetheless she continued to let Robson
sleep in Jackson’s bed. We fail to see how Robson’s mother’s
belief and inaction in 1993 somehow means that defendants’
inaction is necessarily excused for lack of causation. We reject
the notion that defendants were powerless to do anything about
abuse that was ongoing since 1990, including alerting the
authorities and refraining from facilitating the abuse. This is a
quintessential question for a jury to decide.
6. Robson: The Protective Orders and Sanctions Issues
Before defendants’ summary judgment motion was filed,
the trial court granted four discovery motions for protective
orders filed by nonparty witnesses whom Robson sought to
30
depose. The court also denied Robson’s request for a protective
order that would have required a further deposition of another
nonparty witness and awarded sanctions against Robson’s
counsel.
Robson appealed from the sanctions order, as well as the
grant of the protective orders. We find no abuse of discretion in
any of these orders.
a. The Whaley deposition and sanctions order
On February 4, 2017, Robson deposed nonparty witness
Leroy Whaley, the son of Ms. Levine, who worked for Jackson
when Mr. Whaley was a child. Robson’s counsel suspended the
deposition, claiming defense counsel repeatedly made speaking
objections, interrupted counsel and coached the witness.
Then Robson asked for a protective order requiring
Mr. Whaley to sit for a further deposition, limiting defense
counsel’s objections, and requesting sanctions against defense
counsel. The trial court denied the protective order and awarded
sanctions against Robson’s counsel.
First, the court found Robson “did not meet and confer in
good faith with defendants as to the resolution of the issues
presented by this motion.” Robson’s meet and confer letter was
written by an attorney who was not at the deposition, and the
letter was “simply an ultimatum” requiring defense counsel to
agree within 25 hours. “Subsequent efforts by defense counsel to
meet and confer were rebuffed without any serious efforts at
solving the deposition issues.” And Robson’s counsel had also
rejected defense efforts to meet and confer during the deposition
and take a break to resolve issues, which the court found was
“further evidence that counsel has failed to meet and confer in
31
good faith,” and an “independent basis for the court to impose
monetary sanctions.”
Second, on the substance of Robson’s motion, the trial court
recounted details from the deposition, observing there were no
instructions not to answer, and the “majority of the deposition did
not have objections from counsel.” Robson’s counsel called
defense counsel “obstreperous and unprofessional” more than
once, “sometimes for merely stating an objection and the basis for
the objection.” The court observed it had read the entire
deposition, and concluded defense counsel’s conduct “was not
obstreperous or unprofessional,” and “Plaintiff’s counsel’s
reactions to [defense counsel’s] objections and conduct were not
even closely proportionate to the underlying alleged misconduct.”
Finally, the court concluded it was obligated to impose
sanctions against Robson’s counsel under Code of Civil Procedure
section 2025.420, subdivision (h),3 finding Robson’s counsel “did
not act with substantial justification in seeking the protective
order . . . .” In addition, the court stated it was authorized under
section 2023.020 to order sanctions “when a party fails to meet
and confer in good faith prior to filing a motion for a protective
order.”4
3 “The court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any
party, person, or attorney who unsuccessfully makes or opposes a
motion for a protective order, unless it finds that the one subject
to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.”
(Code Civ. Proc., § 2025.420, subd. (h).)
4 “Notwithstanding the outcome of the particular discovery
motion, the court shall impose a monetary sanction ordering that
32
Robson tells us none of this, instead contending the court
denied his request for a further deposition because the court
thought counsel was required to state on the record that he was
suspending the deposition to seek a protective order (and instead
counsel said he was seeking sanctions).5 Robson also says the
trial court focused on his counsel’s conduct at other depositions
involving heated exchanges between counsel (where Robson’s
counsel made statements about defense counsel’s lack of legal
experience or ability, belittled her appearance, made allegations
about her emotional state, and so on).
The trial court referred to “gender incivility” statements,
but expressly did not consider that evidence for purposes of
Robson’s motion; the court said it just wanted to remind counsel
of their obligations and “eliminate this potential issue
immediately.” And the court said, “Plaintiff ended the deposition
without justification or explanation, and without stating that he
was ending it in order to seek a protective order.” But this
remark was prefaced with “furthermore,” after the court gave the
any party or attorney who fails to confer as required pay the
reasonable expenses, including attorney’s fees, incurred by
anyone as a result of that conduct.” (Code Civ. Proc., § 2023.020.)
5 Code of Civil Procedure section 2025.470 states: “The
deposition officer may not suspend the taking of testimony
without the stipulation of all parties present unless any party
attending the deposition, including the deponent, demands that
the deposition officer suspend taking the testimony to enable that
party or deponent to move for a protective order under Section
2025.420 on the ground that the examination is being conducted
in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses that deponent or party.”
33
reasons we have just described. There is no basis for finding an
abuse of discretion.
b. The four protective orders
Robson subpoenaed four nonparties for depositions. They
were Lily Chandler, the half sister of Jordan Chandler (Jordan
reported in 1993 that he was abused by Jackson, apparently the
first child to do so); Tabitha Rose Marks, Jordan’s former fiancée;
Jonathan Spence; and Marion Fox, Spence’s mother. (Robson
believes, but presented no evidence, that Spence was “one of
Jackson’s so-called ‘little friends’ ” during the 1980’s.) All four
sought protective orders.
As pertinent here, Spence and Fox asked that matters
protected by their rights to privacy not be inquired into. (Code
Civ. Proc., § 2025.420, subd. (b)(9).) Fox also asked that
photographs designated for production in her deposition notice—
all photographs of Spence taken while he was 3 through 18 years
of age, and all photos depicting Jackson—not be produced.
(§ 2025.420, subd. (b)(11).) Chandler and Marks asked that their
depositions not go forward at all, based on fears for their personal
safety and to prevent unwarranted invasion of their
constitutional privacy rights.
As to Spence and Fox, the trial court concluded: (1) Robson
failed to present admissible evidence demonstrating he seeks
information that is directly relevant to his own claims. (Robson’s
evidence was a declaration from his counsel of his belief that
Spence was a “key percipient witness” to Jackson’s sexual abuse
of children, to which the court sustained objections based on
hearsay, lack of foundation, lack of personal knowledge and
speculation.) The trial court also concluded (2) even if that
evidence were admissible, the court would still grant the
34
protective order, because Robson was “seeking evidence that
would corroborate his own allegations,” and “the stated desire for
corroboration of Plaintiff’s own sexual abuse is not directly
relevant to his claims or essential to the resolution of his case.”
“This is an insufficient basis to compel third parties to discuss
such highly sensitive and protected private information.”
As to Lily Chandler and Tabitha Rose Marks, Robson
sought to depose them concerning the whereabouts of Jordan
Chandler (the first child to report abuse), Jordan’s interactions
with Jackson in the early 1990’s, and Lily and her family’s
interactions with Jackson.
Chandler and Marks submitted declarations under penalty
of perjury. Marks (Jordan Chandler’s former fiancée) stated she
had no personal knowledge of what happened between Jordan
and Jackson (she met Jordan in 2008) and had no knowledge of
Jordan’s whereabouts. Lily Chandler declared she had no
specific memories of any interactions with Jackson or his
employees (she was six years old at the time).
Robson argued he needed to depose Jordan Chandler
because his credibility bears on Robson’s credibility, and for
determining whether defendants were or should have been on
notice of any ongoing sexual abuse. The trial court observed the
ultimate goal was to find and depose Jordan for the purpose of
using evidence of his abuse to assist in proving Robson’s own
abuse. The court said that character evidence would be
inadmissible and, with regard to the corporate defendants,
Robson’s complaint alleged numerous agents and employees of
defendants actively participated in and witnessed Jackson’s child
abuse, so Robson’s ultimate goal (to depose Jordan) would not be
essential to Robson’s claims. The court balanced privacy rights
35
against Robson’s interest in obtaining information on private
matters “from nonparties who have no direct knowledge of any
sexual abuse,” and concluded Robson did not demonstrate a
compelling need for Lily Chandler’s and Marks’s depositions.
We find no abuse of discretion in the trial court’s rulings.6
In each case, the trial court’s ruling balanced the prospective
deponent’s privacy rights in highly sensitive personal information
against Robson’s need for the information. This was in accord
with Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1,
34.
To be clear, we express no general view or advisory opinion
on the merits of Robson’s contentions (1) that he is entitled to
obtain discovery into whether defendants knew or should have
known that Jackson posed a risk to children within defendants’
care; or (2) that evidence of prior sexual abuse would be
admissible under Evidence Code section 1101, subdivision (b)
(exception to the ban of character evidence to prove conduct
where the evidence is relevant to prove some other fact such as
intent) and section 1105 (habit or custom); or (3) that Robson “is
entitled to gather information concerning Jackson’s repeated
abuse of other children to further investigate a pattern in his
grooming of victims and his subsequent sexual abuse of victims.”
We hold only that the trial court did not abuse its discretion
when it granted the four protective orders at issue here.
6 In the interest of reaching the merits, we decline to decide
whether Robson forfeited his challenges to the trial court’s
rulings by failing to serve his opening brief and appendices, or
the notice of appeal, on the prospective deponents who obtained
the protective orders.
36
DISPOSITION
The judgments are reversed and the causes are remanded
to the trial court for further proceedings. Plaintiffs shall recover
their costs on appeal from the judgments. The discovery orders
and the sanctions order in the Robson case are affirmed. Lily
Chandler and Tabitha Rose Marks shall recover their costs.
Defendants shall recover costs on appeal from the sanctions
order.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.
37
WILEY, J., Concurring.
Michael Jackson totally controlled the two corporations
that are the defendants in these cases. He was their sole
shareholder. For tort purposes, to treat Jackson’s wholly-owned
instruments as different from Jackson himself is to be
mesmerized by abstractions. This is not an alter ego case. This
is a same ego case. For tort purposes, Jackson’s corporations
were Jackson. They did his bidding and his alone. Jackson
himself owed a tort duty to the plaintiffs in this case. So did
Jackson’s marionettes, because Jackson’s fingers held every
string.
What is the tort duty? Where the expected benefit of
investments in harm avoidance outweighs the burden, courts
impose tort duties on defendants, but courts refrain when the
burdens outweigh the expected benefits. These corporations
could have taken cost-effective steps to reduce the risk of harm.
They owed the children that duty in tort.
The question of whether these corporations owed a duty in
tort is a question for tort law. The defendant corporations
identify no tort duty precedents involving corporations wholly
owned by one person. To decide this question of first impression,
first principles are our first stop.
The first principle of tort duty is to minimize the social
costs of accidents. People must take cost-effective steps to avoid
accidents, but when the cost of harm avoidance outweighs the
expected benefit, no tort duty exists. The author of this profound
principle was our revered Justice Roger J. Traynor. In his 1944
Escola opinion, Justice Traynor saw the future and charted the
way forward. Escola explained tort doctrine must aim to
minimize the social costs of accidents. (Escola v. Coca Cola
1
Bottling Co. (1944) 24 Cal.2d 453, 462 (conc. opn. of Traynor, J.)
[“public policy demands that responsibility be fixed wherever it
will most effectively reduce the hazards to life and health
inherent in defective products”] (Escola); see also Greenman v.
Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63–64 (Traynor,
J.) [unanimous court adopts logic of Traynor’s concurring Escola
opinion] (Greenman).)
Justice Traynor’s Greenman decision shaped national law.
“Within a decade of Greenman, a majority of jurisdictions in the
United States had adopted causes of action in strict product
liability. Today all but a handful of states employ some version of
products liability law.” (Goldberg et al., Tort Law:
Responsibilities and Redress (3d ed. 2012) p. 887.)
Shortly after Escola, Judge Learned Hand—another jurist
in the American pantheon—expanded tort law’s cost-benefit
calculus beyond products liability and formalized it with
mathematical precision. (See United States v. Carroll Towing Co.
(2d Cir. 1947) 159 F.2d 169, 173 [defendant’s tort duty is a
function of three variables: (1) the probability of an accident and
(2) the gravity of the injury from an accident, versus (3) the
burden—that is, the cost—of adequate precautions]; see Posner,
A Theory of Negligence (1972) 1 J. Legal Stud. 29, 32–33.)
Guido Calabresi is another in the line of giants. In 1970,
then-Professor Calabresi revealed tort law’s deep structure in his
landmark book, The Costs of Accidents. Calabresi showed courts
can use cost-benefit analysis to appraise whether defendants can
take cost-effective steps to reduce the risk of accidents. Where
the benefit of investments in harm avoidance outweighs the cost,
courts should impose tort duties on defendants. But courts
refrain from imposing tort duties when the costs of avoiding
2
harm outweigh the benefits. (Cf. Posner, Guido Calabresi’s The
Costs of Accidents: A Reassessment (2005) 64 Md. L.Rev. 12, 15
[Calabresi’s framework approximated cost-benefit analysis].)
This approach had such power and logic that it eventually
became national law. (See Air and Liquid Systems Corp. v.
DeVries (2019) __ U.S. __ [139 S.Ct. 986, 994–995] [majority
opinion determines tort duty by analyzing who is in the better
position to prevent the injury, citing Calabresi, supra]; id. at
p. 997 (dis. opn. of Gorsuch, J.) [dissent agrees with this
approach]; see generally Sharkey, Modern Tort Law: Preventing
Harms, Not Recognizing Wrongs (2021) 134 Harv. L.Rev. 1423,
1423, fn. 3, 1435–1444; see also Jane IL Doe v Brightstar
Residential Inc. (2022) 76 Cal.App.5th 171, 182–185 [analyzing
California cases]; Loomis v Amazon.com LLC (2021) 63
Cal.App.5th 466, 492–502 (conc. opn. of Wiley, J.) [analyzing
California cases].)
The question in this case is whether Michael Jackson, as
puppetmaster of his two wholly-owned corporations, could have
taken cost-effective steps to avoid the harm the plaintiffs allege
he inflicted upon them. The answer is yes. Jackson could have
restrained himself. From a social standpoint, this harm
avoidance would have been costless. It merely required law-
abiding self-control, which the law expects of every person.
Jackson’s two corporations were akin to USA Taekwondo in
the Brown case. (See Brown v. USA Taekwondo (2019) 40
Cal.App.5th 1077, 1095.) These three entities—Michael
Jackson’s two wholly-owned corporations as well as USA
Taekwondo—were in controlling positions to protect children
from sexual abuse. All three entities could have established
codes of conduct to prohibit sexual relationships between adults
3
and youths. All three entities could have barred adults from
being alone with youths. So too could these entities have
provided guards or chaperones to prevent improper conduct by
adults. (Ibid.) All three entities were in the best position to
protect against the risk of harm. (See id. at p. 1094; Brown v.
USA Taekwondo (2021) 11 Cal.5th 204, 222 [Court of Appeal took
the correct approach].)
Through attorneys, Jackson’s corporations tell us today
these protective measures were impossible or absurd because
Michael Jackson would not have wanted to adopt them, and he
was the only one in charge. But corporations cannot escape their
tort duties by saying those with power do not care about safety.
It is the job of tort law to make them care.
WILEY, J.
4