Estate's Opposition to Robson's request to amend his complaint: https://www.scribd.com/document/326200053/Estate-Opposition-to-Robson-4th-Amendment-Complaint
First allow me to provide a brief history of Robson’s civil case against MJ Companies to better explain the developments in this case.
Robson filed his original complaint against Doe defendants on May 2013 with only one cause of action of childhood sexual abuse. On February 2014, Robson amended his complaint to name the Doe defendants as MJJ Productions and MJJ Ventures (aka MJ Companies). Estate filed a demurrer on June 2014 and a demurrer hearing was held on October 2014. During that demurrer Estate argued that corporations cannot engage in childhood sexual abuse. Judge granted Estate’s demurrer but gave Robson a chance to amend his complaint.
December 2014, Robson filed his third amended complaint, this time alleging several causes of actions against the MJ Companies including a negligence claim. On March 2015, Estate filed a second demurrer and the hearing for the second demurrer was on July 2015. This time judge denied Estate’s demurrer saying that it requires a factual determination in a proceeding beyond demurrer.
In a demurrer the Judge needs to accept everything alleged in the complaint as true and only determines if there is a legal basis for the lawsuit. Defendants cannot bring counter evidence about the claims in the complaint, they can only argue legal aspects. Therefore in his demurrer ruling, Judge was saying he needs more information to decide and that could only happen after discovery when both sides present their evidence, witnesses etc. That information would allow the Judge to determine if these claims have any merit at all and if it can satisfy the exception conditions. So the dismissal issue will get revisited at summary judgment.
Going back to the timeline of the case, Estate filed an appeal about Judge’s decision to deny demurrer on November, 2015. Estate’s appeal was denied on February 2016. On March 2016, Judge set a trial date for 2017 and the discovery process had started behind the scenes. On July 2016 Robson changed lawyers and we learned about some discovery/ deposition disputes between the parties.
On September 9, 2016 Robson lawyers filed a request to amend the complaint again. They wanted to drop the childhood sexual abuse claims, add emotional distress and modify the negligence claims to include negligent hiring, retention, supervision, negligent failure to warn, negligence per se (mandatory child abuse reporting).
Estate asks Robson’s request to amend the complaint is denied because they can’t explain the delay in asking to make this amendment and the amendment is futile as they cannot allege sufficient facts to back up the claims. Furthermore if the amendment is allowed it would delay the case, costing more time and money.
One thing that works to Estate advantage is that amendment request can be denied when the plaintiff has “prior knowledge of the circumstances on which it based the amended complaint”. In the BOTH of demurrer hearings (first one on October 2014 and second one on July 2015) the issue of potentially negligent hiring, retention and supervision claims were mentioned both by Estate lawyers and the Judge. However Robson’s attorneys didn’t amend the complaint to include such claims. Furthermore Robson’s new proposed amended complaint lists the same previous allegations/ information/ claims and it doesn’t offer any new information to suggest that they newly discovered stuff that warrants an amendment.
October 2014 Demurrer Hearing Transcript
July 2015 Demurrer Hearing Transcript
Second issue Estate mention is Robson’s failure to allege “facts” to demonstrate that the companies hired, supervised and retained Michael to work for them. According to the law in order for the MJ Companies to be responsible for negligence due to Michael’s actions, Robson needs to show that the companies placed Robson in Michael’s custody or control. In other words companies aren’t responsible for the interaction their employees have with every single person outside of their employment, there has to be a connection to the employment. Although Robson claimed Michael was hired by the MJ Companies, Robson’s exposure to Michael wasn’t through Michael’s so called employment by the companies.
Robson’s own complaint alleges a personal relationship between him and Michael. According to Robson’s complaint he and his family came to visit USA on an unrelated matter. Neither companies nor Michael had prior knowledge of this trip. It was Robson’s mother who got in contact with Michael’s assistant and asked to see Michael. Robson and his family began a personal relationship with Michael and visited him at his private residences as his personal guests.
Furthermore according to Robson’s complaint it was over a year and half after the alleged abuse begun before Robson and his mother had a business connection with the MJ Companies. Therefore not only the MJ companies did not create an opportunity for the alleged abuse, they couldn’t stop Robson and Michael’s personal friendship.
One of Robson’s new negligence claim accuses MJ Companies by not warning Robson regarding risk of abuse by Michael. Estate’s opposition document mentions that according to Robson’s own claims the alleged abuse happened in Michael’s private residences when Robson and his family were Michael’s personal guests. That means the alleged abuse didn’t happen while Robson was entrusted to the companies during any so called “youth programs” at the offices of the companies. Estate argues as a matter of law, the companies had no duty of care towards Robson.
As for Robson’s negligence per se claims about mandated reporters, Estate argues Robson’s arguments are flawed. First of all the version of the law Robson’s attorneys cited is a recent version and it wasn’t in effect during the time of the alleged abuse. Estate argues that MJ Companies weren’t a mandated reporter organization. According to the law organizations that regularly provide services to the children are mandated reporters. Such organizations are schools, camps, day care centers etc. Despite Robson's attempt to portray MJ Companies as some sort of "school" with Michael mentoring kids, the companies were entities formed to handle Michael's business affairs. Furthermore Robson fails to identify which specific employees of the companies were supposed to be mandated reporters and what event they were supposed to report to the authorities.
Finally Estate points out that Robson in his complaint mentioned the 1993 allegations and accompanying law enforcement investigation. Therefore Robson and his mother was fully aware of the allegations and took part in the investigation denying any abuse. Robson family continued their close personal relationship with Michael despite 93 allegations. Robson was also very aware of the 2005 allegations and trial and he testified and denied abuse once again. Therefore Robson’s claims that MJ Companies failure to report Michael caused his injuries doesn’t make any sense at all.
Estate also points out that allowing Robson to amend his complaint would cause significant delays and costs. If an amendment is allowed, the case will go back to the demurrer stage, require additional discovery to address the new causes of action.
This opposition document also allows us our first look to the discovery in the case. Although it might seem boring at first, we actually learn crucial information about the structure of MJ Companies. MJJ Productions were incorporated in 1979 and MJJ Ventures were incorporated in 1991. Michael was appointed as the sole director of the companies at their incorporation. We learn that Michael had 100% of stock in both companies at all times. In June 1994, as the sole shareholder Michael expanded the size of Board of Directors for both companies from one to four. He appointed John Branca, Sandy Gallin and Marshall Gelfand to the Board of Directors and they remained on Board of Directors until after 1997.
According to the timeline of the MJ Companies, Michael was the sole director and sole Board of Director of the MJ Companies during the time (1988-1992) Safechuck claims he was abused. Robson claims to be abused between ages 7 -14 or between 1990 -1997. Although there was a Board of Directors during the last 3 years of the alleged abuse, it doesn’t help Robson with his claims. Even though we assume the Board of Directors somehow fired Michael from the MJ Companies, Michael as the 100% shareholder could fire the Board of Directors, select a new set of Board of Directors and rehire himself. In other words this basic discovery shows us that the MJ Companies had absolutely no control over Michael.
Why this piece of information is very important? Because according to the law (340.1), Robson and Safechuck had until their 26th birthday to sue the MJ Companies. Both were over 26 when they filed their lawsuits. There is an exception that allows people to sue entities after plaintiffs 26th birthday. The exception states
entity knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment
As you can see this exception requires the MJ Companies to have power on Michael and prevent him from coming in contact with children. The discovery about the organization structure shows that MJ Companies had no power or control over Michael. This is the type of information that the judge was wanting to see before he decides whether this case can go to trial or not. This information alone can demonstrate that neither Safechuck nor Robson could satisfy the exception rule and therefore during summary judgment –when Estate can present this discovery/evidence to the judge- the cases can get dismissed due to statute of limitations regardless of the causes of actions.
Personally this makes me more confident that these case will probably not survive summary judgment. In a demurrer when the judge needs to treat everything Robson says as true has no choice but to accept Robson’s claims, no matter how absurd it might be to us all. However in a summary judgment where Estate could bring evidence, witnesses, and discovery, the balance will change drastically.
I imagine Robson lawyers are fully aware of it, given all of their actions suggest they want a settlement. After all how can you explain sending out press releases for every motion they file and attach the court documents to it? To me it looks like they are hoping to create negative and salacious media stories and force Estate into a settlement.
What’s next? Robson lawyers will file a reply to Estate’s opposition. I have no plans to get that document. But given how much the new lawyers love publicity, they might do another press release with the document attached.
The hearing for Robson’s request to amend his complaint is set for October 7th. Judge will rule either on the spot or might take matter under consideration and rule later. I will update this post with the ruling once the Judge decides.
There are several possible outcomes:
- Judge might allow the amendment of the complaint. If that’s the case Estate asks the Judge to vacate the trial date and allow Estate to file a demurrer. A demurrer would take around 6 months. There could be several rounds of demurrer, new discovery etc. Robson’s case needs to be tried by May 2018 latest.
- Judge might deny the amendment. If that’s the case the next important thing will be the summary judgment motion. As of now the deadline for the summary judgment motion is November 23rd and a hearing is set for February 9th, 2017.
Tidbit: Footnote on page 7 says that Robson’s previous lawyer withdrew from the case. It doesn’t provide any more details but it makes you wonder if Robson wanted to replace his previous lawyers or if the previous lawyers actually dropped Robson and he had to find new lawyers.
Note: I omitted some inconsequential pages (cover page, table of contents etc.) of the document to save time scanning.