Document AEG Katherine Jackson.

5/10/2018 Document AEG Katherine Jackson.

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O R I G h V A l1 MARVIN S. PUTNAM (S.B. #212839)[email protected] O 'MELVENY & MYERS LLP1999 Avenue of the Stars, Suite 7003 Los Angeles, California 90067Telephone: (310) 553-67004 Facsimile: (310) 246~6779 D E C 3 0 2 0 1 05 Attorneys for Defendants AEG Live, LLC.Anschutz Entertainment Group, Inc., Brandon Phillips,6 Paul Gongaware, and Timothy Leiweke

e , Ex ecl it iv e Of fi ce r /C l er !.~~----,,.,.-,- __ " Deputv

78 ,91011 KATHERINE. JACKSON, individuallyand as th e Guardian ad Litem of12 MICHAELJOSEPH JACKSON, JR.,PARIS~~L KATHERINE13 JACKSON, and l?lUNCE MICHAEL

JACIGONI~ ........

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF LOS ANGELES

Case No. BC 445597Hon. Yvette M. Palazuelos, Dept. 28

Plaintiffs,

J : . eptember 15.2010DemurringDefendants Served: November 3D , 201021 Defendants. Date: February 2, 2011Time: 8;30 am.Dept: 2822

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DEMURR ER TO P LA IN TIF FS' C OM PLAIN T
mailto:[email protected]:[email protected]


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arvinS, Putnamto=D e f e 1 ; 1 . .'t G Live, LLC,'c . ' E~i~~t roup, Inc., Brandon PhillipsPaul Gongaware. and Timothy Leiweke

2 PLEASE TAKE NOTICE that at 8:30 a.m. on February 2,2011, or as soon thereafter a3 the matter may be heard. in Department 28 of the above-captioned Court for the County of Los4 Angeles, Central District, located at IIINorth Hill Street; Los Angeles. California 90012,5 defendants AEG Live, LLC, Anschutz Entertainment Group, Inc.Brandon Phillips. Paul6 Gongaware. and Timothy Leiweke ("Defendants") will demur to the first, second, third and fift7 causes of action of plaintiffs' complaint on the grounds that plaintiffs lack standing to bring the8 claims other than as wrongful death theories; to the fifth cause of action on the grounds that it i

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

9 time-barred on its face as to plaintiff Katherine Jackson; and to the first, second, third, fourth. a10 fIfth causes of action on the grounds that the complaint fails to state a claim as to any Defendan11 This Demurrer is based on this Notice of Demurrer; the accompanying Demurrer and12 Memorandum f Points and Authorities; the Declaration of Marvin S. Putnam and exhibits13 attached thereto; any reply papers that Defendants may file; the pleadings and papers on file in14 this action; d any gument or other matters presented to e Court at the hearing.

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D EM UR RER TO PLAINTIFFS' COMPLAINT


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13 or any of them.1415 3.161718 of Civil Procedure' section 277 .30.,19

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1 DE~R2 Defendants AEG Live, LLC, Anschutz Entertainment Group. Inc., Brandon Phillips, Pa3 Gongaware. and Timothy Leiweke ("Defendants") hereby demur to plaintiffs' complaint on the4 following grounds:5 Demurrer to First Cause of Action

1. Pursuant to California Code of Civil Procedure section 430.1O(b) and (e),Defendants demur to plaintiffs' First Cause of Action (Breach of Contract Based and OtherDuties of Care) on the ground that plaintiffs lack statutory standing to bring this claim underCode of Civil Procedure section 377.30.

2. Pursuant to California Code of Civil Procedure section 430.1O(e), Defendantsdemur to plaintiffs' First Cause of Action (Breach of Contract Based and Other Duties of Care)on fhe ground at the complaint fails to state facts sufficient to state a claim against Defendants

Demurrer to Second Cause.. '

20 demur to plaintiffs' Second Cause of Action (Negligent Hiring. Training, and Supervision) on21 ground that the complaint fails to state facts sufficient to state a claim against Defendants. or an22 of them.2324 5.

Demurrer to Third Cause of ActionPursuant to California Code of Civil Procedure section 430.10(b) and (e),

25 Defendants demur to plaintiffs' Third Cause of Action (Fraud and Constructive Fraud) on the26 ground that plaintiffs lack statutory standing to bring this claim under Code of Civil Procedure27 section 377.30.28

D EMURRER T O P LA IN TIFF'S C OMP LA IN T


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DEMURRER TO PLAINTIFFS' COMPLAINT

6. Pursuant to California Code of Civil Procedure section 430..10(e) ..Defendants2 demur toplaintiffs' Third Cause of Action (Fraud and Constructive Fraud) on the ground that t3 complaint fails to state facts sufficient to state a claim against Defendants, or any of them, and4 that the complaint does not plead fraud with the requisite particularity ..5 Demurrer to Fourth Cause of Action6 7 . Pursuant to California Code of Civil Procedure section 430.1 O(e), Defendants7 demur to plaintiffs' Fourth C ause of Action (Negligent Infliction of Emotional Distress (Dillon8 Legg) by plaintiff Michael Joseph Jackson, Jr.), on the ground that the complaint fails to state9 facts sufficient to state a claim against Defendants, or any of them,10 Demurrer to Fifth Cause of Action

8 _ Pursuant to California Code of Civil Procedure section 430,1O(b) and (e),1t2 Defendants d _ ur to plaintiffs' Fifth C ause of A ction (Respondeat Superior) on t h e - ground tha

p la in t if fS l ack statutory standing to bring this claim under Code of Civil Proc edu re s ec tio n314151617181920212223

37730.9 , . suant to O~cde of Ci~resectio~),.Defenda

demur ~()p J . . "fl's' ~th I a1il~eof Acti~n (R spendeat Superior) n thegrounJ that tile cause oaction L , f~me-b' m : ' Pursuant to Califormad e m u r c l P l i n t t f s \ . J e . < t u t ~

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1 WHEREFORE, Defendants pray that the Court:1. Sustain this demurrer as to the First. Second, Third. Fourth, and Fifth Causes of

3 Action as to all plaintiffs; and2. Award such other and further relief as the Court deems just and proper.Dated: December 30,2010 MARVIN S. PUTNAMO'MELVENY & MYERS LLP

By: L'J/fJ;;;Marvin S. PutnamAttorneys for Defendant AEG Live. LLC.Anschutz Entertainment Group, Inc., Brandon Phillips,Paul Gongaware. and Timothy Leiweke

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TABLE OF CONTENTSIntroduction i!'Ii ' " ' 01 iI~Plaintiffs Lack StandingThe First Cause o f Ac ti on Must Be DismissedA. The Performance Contract Did Not Create Some Special Duty of Care,B. AEG and Michael Jackson Did Not Have a "Special Relationship."C. Michael Jackson-s-Not AEG~Control1ed His Own Medical Care and Hired

His Own Longtime Personal Physician, Dr. Conrad Murray ,D. The Other Alleged "Facts" Are Also Insufficient to Create a Duty Of Care

I. loint Venturers Do Not Owe Non -Financial Duties of Care ,2. Premises Liability Is Equally Inapt..3, An Unexecuted Agreement Does Not Somehow Create a Duty of Care

E. No Duty Existed Because Michael Jackson's Injury Was Not ForeseeableThe Second Cause of Action Must Be DismissedThe Third Cause of Action Must Be Dismissed L

e Fourth Cause of Action ..M.ust Be Dismissed , ~ 1.... iAuse of Action Must Be Dismissed. . 1

. l.aintif~s' laim That ABO Employed Dr. Murray Is Contradicted by the Draft~ . ~ : ' ~ ~ ~ ; : c t i o n~ o F ~ : : : : : r : r ~ : d ~ ~ ~ ~.~ ~ ~ ~r . . ." ,._ . .: : . . . .~ Be Bro ht Against tlle Ind.vidual Defendants , 1



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TABLE. OF AUTHORITIESCASES

3 Bagatti v . Dept. of Rehab.,97 Cal. App. 4th. 344 (2002) 10Bashford v. A . Levy & J. Zentner Co.123 CaL App. 204 (1932) 15Beck v. Am. Health Grp. Int'l, Inc.,211 Cal. App, 3d 1555 (1989) 14Bird v. Saenz,28 Cal. 4th 910 (2002) 13Briggs v . Eden Council for Hope & Opportunity,19 Cal. 4th 1106 (1999) 6Chicago Title Ins. Co. v. Great W. Fin. Corp.,69 Cal. 2d 305 (1968) 1Comm. on Children's Television, Inc. v. Gen. Foods Corp.,35 Cal. 3d 197 (1983) 1Delgado Ii. Am. Multi-Cinema, Inc.,72 Cal. App, 4th 1403 (1999) 10Dodd v. . tens Bank of Costa Mesa,222r


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D EM URRER TO PLAINTIFFS' COMPLAINT

TABLE OF AUTHORITIES (cont.)

3456

Lugtu v. Cal. Highway Patrol,26 Cal. 4th 703 (2001) ., " , 4 -

Mala v . Mata,105 Cal. App. 4th 1121 (2003) " 7Melton v, Boustred,183 Cal. App. 4th 521 (2010) " 2

Mission Oaks Ranch, Ltd. v, Cnty. of Santa Barbara,65 CaL App. 4th 713 (1998) , 6, 8Morton v. Thousand Oaks Surgical Hosp .187 Cal. App. 4th 926 (2010) , " 13N Am, Chern. Co. v. Superior Court,59 Cal. App. 4th 764 (1997) 3O lso n v. Children's Home Soc'y,

204 Cal. App. 3d 1362 (1988) , 4People v. Murray,Case No. SA073164 (filed Feb. 8, 2010) " 9Peterson De . v. Torrey Pines Bank,233 . App. 3d 103 (1991) " , 11

789

~...,.~"" . : 3, 4Tar~~".~I:~~ d ~ ~ ~ u t ~ ~ ' " " , ' "" " , ' IIThing v, hJra,

48 Ca1. 3d 644 (1989) 1 321 ' Williams v , Cal.,

34 Cal. 3d 18 (1983) 4222324

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STATUTESCal. Code Civ. Proc. 34.0.5 , 15Cal. Code Civ. Proc. 367 2CaL Code Civ. Proc. 377.30 2Cal. Corp. Code , 16403 7Cal. Corp. Code 16404 7Cal. Corp. Code 16405 , ,., , , 7Cal. Evid. Code 451 _ 2

III


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TABLE OF AUTHORITIES (coot.)

Cal. Evid. Code 452 2TREATISES

4 Witkin, Cal. Proc, 5th (2008) Plead, 431 ' 1, 146 Witkin, Cal. Sum. 10th (2005), Torts 1049 5

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DEMURRER TO PLAINTlFFS' COMPLAINT

3 The complaint gets one thing right: Michael Jackson's death on June 25. 2009 was a4 tragic event. It was tragic for his children. It was tragic for his fans. And it was tragic for the5 Defendants here. who had labored tirelessly to make a reality of Michael Jackson's dream of a6 triumphant return to the world's stage. Otherwise, however. the complaint gets both the law and7 the facts entirely wrong. Not only do plaintiffs fail to allege any cognizable legal claim (indeed,8 their novel legal theories go far beyond those previously recognized by any court), but many of9 their allegations are proven false by the very documents they refer to and upon which they10 necessarily rely. As such, the complaint warrants immediate dismissal with prejudice.11 A demurrer-c-which tests "the legal sufficiency of the pleading"-must be sustained whe

2 I.MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION.

12 the complaint . s to set forth facts sufficient to state a cause of action. Comm. on Children's13 Tetevisfon,.inc. v. Gen. Foods Corp., 35 Cal. 3d 197;213 (1983). Inruling on demurrer, this14 e the factual allegations in an y complaint (irrespective of their actual15 ot-accept)dEf! eoptentions, ~~ic16 tW Fin. Corp. 6 CaL 2d 305. 27 (l 68),INL 7181920212223242526272 8

by reference into the comp1lillt, Rather, the document's "recitals, if contrary to allegations in thplead' .w r " t gi en re d nee,and effect of an unambiguous document will be disregarded." 4 Witkin, CaL Proc, 5th (2008)Plead, 431, p. 564.

Here, plaintiffs lack standing altogether to assert any claims on behalf of Michael JacksoOtherwise, plaintiffs seek to hold Defendants liable for negligence. but do not allege a legallycognizable duty of care. Similarly, plaintiffs seek to hold Defendants liable for fraud, but do noallege any actual misrepresentations. Plaintiffs next seek to hold Defendants liable underrespondeat superior, but fail to acknowledge the absence of the necessary employer-employeerelationship. And plaintiffs repeatedly contradict both the AEG-Jackson agreement and t h e draIEmphases added and internal citations omitted. throughout unless otherwise stated.


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1 AEG-Murray agreement-upon which they necessarily rely-in a vain attempt to create a viable2 cause of action where none exists. These attempts must be rejected, and plaintiffs' complaint3 must be dismissed for what it is-a colorful fiction with no basis in fact or law.4 II. PLAINTIFFS LACK STANDING.5 Plaintiffs lack standing to assert claims on behalf of Michael Jackson. "Every action mus6 be prosecuted in the name of the real party in interest, except as otherwise provided by statute."7 Cal. Code Civ, Proc, 367. Plaintiffs are not the real party in interes t here. The claims of a8 decedent such as Michael Jackson ca n only be pursued by his personal representative (or, if there9 is none, then by his successor in interest). Cal. Code Civ. Proc. 377.30. Plaintiffs are neither-10 as Michael Jackson very specifically ensured they would not be.2 Nor do they even claim to be.r I As such, plaintiffs' first, second. third, and fifth causes of action must be dismissed for lack of12 tent they improperly attempt to assert claims on behalf of Michael Jackson.13 m. THE FIRST CAUSE OF ACTION MUST BE DI~MISSED.141516171819202122

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r plaintiffs (:kstanding to bring a claim on behalf of Michael Jackson. plaintiffs'complaint , at b . I~ust be con. . ~ ostensi~ death a . g recom,p.

ancr los es=-though l~IS by 0 means pleAded such. Even so censtrued,

ostensibly owed to Michael Jackson. See, e.g., Compl. fi63 ("ABO committed independentnegligence as against Jackson"), 62,64 (same). Yet, no such duties exist-which is preciselywhy plaintiffs' claim is so impermissibly vague. See, e.g., Green v. Uecelli, 207 Cal. App. 3d1112, 1119 (1989) (vague allegations fall short of stating a claim and warrant dismissal).

Whether an actual duty was pled is a question of law for this Court appropriatelydeterminable on demurrer. Melton v. Boustred, 183 CaL App. 4th 521, 531 (2010). A complaintis "fatally defective" if it does not state defendants owed a legally cognizable duty. Hegyes v ..2 Michael Jackson's estate is in probate, and the probate court a pp oin te d Jo hn B ra nc a and JohnMcClain as Michael Jackson's personal representatives. The order "appointing them is attached(Putnam Decl., Ex . C), and may be judicially n otic ed (C al. Evid. Code 451(a) & 452(d)).

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1 Unjian Enter., Inc. 23 4 C al. A pp. 3 d 1103 , 1111 (19 91). H ere , rather than pleading a recognized2 and cognizab le legal duty (as they cannot), plain tiffs instead hope to create new theories of3 liability, with e nd le ss p erm u ta tio ns a nd f ar-re ac hin g c on se qu en ce s th at w o uld tra nsf orm th e4 e nte rta inme nt, in su ra nc e, a nd medic al in du str ie s. Thus, p lain ti ff s a ll ege no actual. recognized5 duties of care , b ut in stead outline a n um ber of supposed actions and inactions by Defendants that6 they contend warran t liability. N one of these alleged a ctio ns o r inactions-several of w hich are7 con tradic ted by documents cited by plaintiffs themselves-rise to th e level of an actuallegaJ duty8 or its breach. A s su ch , p la in tiff s' f irst cause o f a c ti on must fail as a m atter of law . [d.

A . The Performance Contract Did Not Create Some Special Duty of Care.10 In the ir futile attem pt to create b oth new law and a new duty of care, plaintiffs first allegeL1 that the oon tfac t b e tw een AEG Live, LLC an d M ic hae l. Jac kson some ho w "c re ate d a le gal duty12 asonab ly tow ard the physical well-being of Michael Ja ck so n.',J C ompL I f f 54.13 Specifically , plaintiffs claim th e ABG -Jac kson agre em en t c re ate d a tort du ty of c are b ec ause it14 lik e AEG p ro vid in g a sa fe r esid en ce f ;lD dsa fe tra nsp orta tio n fo r M ic ha el15

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held that a bjsine

aw .reared by every contract-s-

Superior Court, 59 C al. A pp, 4th 764, 774 (199 7); cf Suarez v . Pac. Northstar Mech., lnc., 180C al. A pp. 4th 43 0,43 9 (2009 ) (con trac tual prov ision requiring com pan y tu take due care inprogress of w ork did not create general duty to protect work ers from oth er kin ds of in ju ry ).

N or does the fac t that a con trac t requires physically dem an ding w ork m ake on econtrac ting party responsib le for the health of the other party . A fter all, such an outcom e w ouldmake every contracting party an involuntary in su re r. Mo re ov er , it would fly inth e f ac e of th e3 S in ce p la in tif fs d id n ot in clu de th e c on tra ct in th eir c omp la in t, th ou gh they re lied upon it, a copyis attached. P utnam D ecl., E x. A . In terpre tation of the con trac t is a m atter of law for th is Cour t ..See Suarez v. Pac. Northstar Mech. , Inc. 180 C al. A pp. 4th 43 0, 43 9 (2009 ).

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9 B. AEG and Michael Jackson Did Not Have a "Special Relationship."

1 well-settled rule that one generally has no duty to come to the aid of another. See Williams v.2 Cal., 34 Cal. 3d 18123 (1983) ("[a) person who has not created a peril is not liable in tort merely3 for failure to take affirmative action to assist or protect another"); Suarez, 180 Cal. App. 4th at4 438 (this rule "remains a fundamental and long-standing rule of tort law").5 This Court must recognize the AEG-Michael Jackson contract for what it was: a6 performance agreement between two independent parties to put on a concert tour. Nothing more7 The only "duties" it created were those voluntarily agreed to by the parties. Plaintiffs' claims of8 negligence as a result of contract-based duties of care therefore must be dismissed.

10 Unable to fabricate a nonexistent contractual duty of care, plaintiffs next try to apply the11 clearly inapplicable special relationship doctrine. As noted above, a person generally does not12 have a tort dut 0protect another from the conduct of third persons. Williams, 34 CaL 3d at 23.13 Plaintiffl allege" however, that AEG nonetheless should be liable for Michael Jackson's death at14 . Conrad Murray because AEG had a "special relationship" with Michael

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19 ground20 reliance between the parties). Courts have thus only recognized special relationships in very21 limited circumstances-such as between a parent and child, a county and a foster child. a police22 officer and a stopped motorist. a jailor and a prisoner, and the Boy Scouts and a young scout.13 See, e.g., id.; Ronald S. v . Cnty. a/San Diego, 16 CaL App. 4th 887,895 (1993); Lugtu v. Cal.24 Highway Patrol, 26 CaL 4th 703, 717 (2001); Juarez v. Boy Scouts oj Am, Inc., 81 CaL App. 4t25 377,410-11 (2000). These are entirely unlike the professional relationship here between AEG,26 concert promoter, and Michael Jackson, a highly successful, 50-year-old recording artist.27 As such, plaintiffs' attempts to plead that Michael Jackson was dependent or reliant on28 AEG are simply unavailing. Plaintiffs nonetheless spend much of the first cause of action



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1 alleging AEG exerted "an extraordinary degree of control" over Michael Jackson. Compl. < J [ 57;2 see also fl60, 63, 64. What they do not do is allege any facts supporting this alleged control.3 Instead. they allege only that Michael Jackson was financially dependent on the proceeds he4 hoped to earn from the concert series and, therefore, on advanced expenses and fringe benefits5 (including a rented house) from AEG. ld.Tl2l, 23, 54, 60. Plaintiffs also allege that AEG6 threatened to exercise its contractual right to cancel the concert series ifMichael Jackson did not7 meet his contractual obligations to attend rehearsals andperform, ld. ' I r J [ 37,62. Yet, these sam8 allegations are patently typical of the millions of contractual relationships inwhich one party9 depends disproportionately on the proceeds-for instance Iall agreements to finance a fledgling

10 business enterprise or to become a manufacturer's sale supplier. As such, they are wholly11 insufficient toestablish the custody Of dependence necessary for a "special relationship." See,12 Jil. Sum. 10th (2005), Torts 1049, p. 354 (describing recognized special13 relatiol}.ships).---14 y. plaintiffs also allege that AEG1516 concert171819202122

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clear fiction created by plaintiffs in the hopes of salvaging their baseless claims, these allegedfacts nonetheless would not create the necessary "special relationship" even if they were true (anthey are not). After all. even with plaintiffs' fictionalized allegations, the pressure placed onMichael Jackson to accept Dr. Murray's services remains purely financial. Michael Jackson wasnot helpless or incompetent; he lived inhis own home, negotiated his own contracts, engaged hisown attorneys. and cared for his own family. He at all times retained the option of refusing Dr.Murray's services," or of cancelling his agreement with AEO. Insum. unlike those limited4 The:~G-Jack~0!l agreement, un~erw~ich AEG was ob liga ted to perform, contained noprovision auth~nz1ng ~G to require MIchael Jackson to accept an y medical services, other thana rout me physical for msurance purposes. See Putnam Decl, Ex. A at 9.



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1 situations where a special relationship has been found. here AEG in no way actually controlled2 Michael Jackson's conduct even under plaintiffs' alleged facts. Plaintiffs' claims of negligence3 as a : result of a special relationship duty of care therefore must be dismissed.

c . Michael Jackson-Not AEG-ControUedHis Own Medical Care and Hired5 His Own Longtime Personal Physician, Dr. Conrad Murray.6 Even if this alleged fictional scenario would have somehow created a special relationship7 (and it would not), plaintiffs' manufactured allegations in any event must be disregarded by this8 Court as they are pointedly contradicted by the very documents upon which plaintiffs' complaint9 necessarily relies. See Mission Oaks Ranch, Ltd. v. Cnty. of Santa Barbara, 65 CaL App. 4th 7110 720 ..21 (1998), disapproved on other grounds, Briggs v. Eden Council/or Hope & : Opportunity,11 19 Cal 4th 1106(1999) (when documents incorporated into a complaint contradict allegations,12 be disregarded); see also Dodd v..Citizens Bank of Costa Mesa, 222 Cal. App.13 3d 1624, 1626-27 (l990). 1n their complaint! plaintiffs repe tedly cite to a draft written14 . Murray and AEG-an agreement pI intfffs allege AEG prepared and Dr1 5

161718 Ex. B r . n A. Itfurther adds t 1 a , ; l t Dr. Murr-ay "represents ... that he acts as [Michael Jackson's]192021222324252 6

between AEG and D r. Murray were expressly conditioned on MichaelJackson's written consent.Unless Michael Jackson signed the agreement, acknowledging that he requested D r. Murray'sservices, then Dr. Murray would have no contract with AEG and AEG would have no obligationsto Dr. Murray. ld. at 6, r . n 9. 'The agreem ent W as also to.be "immediately terminable" if MichaelJackson "decide[d] for any reason that [Michael Jackson] no longer wantjed] or needled] theservices of Dr. Murray," id. 'H 7.3. And the costs of Dr. Murray'S services were to be borne

275 This draft agreement, incorporated by reference into the complaint, is attached as Exhibit B tothe Putnam Declaration.6 P ara gra ph 9 provides that without such consent, "neither party to the Agreement will have an yrights or obligations to one another .... " ld. '1 r 9.

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3-16405 (outlining duties),

1 principally by Michael Jackson. Jd. at 6.2 Inother words, plaintiffs' claims that ABO selected Dr. Murray. paid Dr. Murray , an d3 forced Dr. Murray's services on Michael Jackson are exactly backwards. As the draft contract4 plaintiffs explicitly rely upon makes perfectly clear, Dr. Murray was Michael Jackson's personal5 physician. AEG did not choose or hire Dr. Murray; it merely conducted negotiations aimed at6 retaining him as an independent contractor on the tour-s-but only for Michael Jackson's benefit7 and only if Michael Jackson expressly consented to its doing so. ld. at 6. Inconducting these8 negotiations-which were never completed=- AEG could not have entered into a "special9 relationship" with Michael Jackson. Plaintiffs' contrary allegations. must be disregarded.

D. The Other Alleged ''Facts'' Are Also Insufficient to Create a Duty Of Care.n Ina last-ditch effort to present any facts that might somehow create a duty owed by12 lao tiffs offer a scattershot of inchoate allegations. None support the finding of a13 duty here.14 JOint Venturers Do Not Owe Non-FJnancial Duties of Care.15161718 oint19 ventur20 2.21 Similarly, plaintiffs suggest that AEG assumed premises liability because, they allege,22 ABO paid the rent on Michael Jackson's house. Compl. ti23, 41. 59. Yet, we have not located23 single authority that would even suggest that lending a person money with which to secure a lease24 would somehow create premises liability. Moreover. even if lending such monies could25 somehow create premises liability (and it cannot). ABO still would not owe a duty to protect26 Michael Jackson from injury done by his treating physician in his home. See, e.g., Mala V~Mata,27 105 Cal. App. 4th 1121. 1131-32 (2003) (landlord owed no duty to protect tenant's guest from28 injuries caused by tenant's action rather than by the premises itself).



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3 . An Unexecuted Agreement Does Not Somehow Create a Duty of Care.2 Finally, plaintiffs' allegation that AEG is liable because it failed to provide a nurse and3 medical equipment to Dr. Murray is foreclosed by the draft Murray-AEG agreement, which4 expressly states that AEG owed Dr. Murray no obligations unless the agreement was signed by5 Michael Iackson, Putnam Decl., Ex. B 9[9. Dr. Murray signed the agreement-indicating he6 understood he would receive no medical equipment unless Michael Jackson also signed the7 agreement-and Michael Jackson did not sign. [d. at 6. Plaintiffs' allegations that AEG agreed8 to provide equipment cannot survive the unambiguous language of the draft agreement. See9 Mission Oaks Ranch, 65 Cal. App. 4th at 720-21.

E. No Duty Existed Because Michael Jackson's Injury Was Not Foreseeable.011 I addition to all of the above, plaintiffs also failed to allege a viable duty of care under12 an y theory- - ..........ract. special relationship. or otherwise-because they failed to allege that the13 injury to Michael Jackson was reasonably foreseeable. "Dut is not an immutable fact. but rathe14 considerations leading to the legal conclusion that a plaintiff is entitled t15161 7181920 Dr. Murray, a licensed physician with no alleged history of malpractice, would administer21 anesthesia inMichael Jackson's home, and that Michael Jackson would die as a result of an22 overdose of that anesthesia. Plaintiffs do not allege any facts indicating that Defendants, or any23 of them, knew or should have known that Michael Jackson was abusing anesthesia in his home.24 Instead, they allege only that Michael Jackson appeared ill and tired in the days before his death.25 CompI. n58. 73. This might theoretically be pertinent to a foreseeability analysis if Michael26 Jackson's death had been due to an undiagnosed illness. But it in no way suggests that Michael27 Jackson was likely to die in the way he allegedly did-as a result of reckless conduct by a doctor28

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1 acting far outside the standard of care.' Compl. nWI, 103-04.2 "[L]iability for unforeseen and unforeseeable consequences of one's conduct is liability3 without fault, and not negligence liability." Ludwig, 65 Cal. App. 4th at 1111. Under these4 circumstances, it makes no sense to impose on Defendants a duty to prevent the totally5 unforeseeable circumstance that Michael Jackson would die inhis home from an overdose of6 anesthesia. Accordingly, this Court should find that no such duty exists, or can be pleaded, and7 should dismiss plaintiffs' first cause of action.8 IV. THE SECOND CAUSE OF ACTION MUST BE DISMISSED.9 Plaintiffs' second cause of action for negligent supervision of Dr. Murray must likewise10 be dismissed fo r failure to state a claim. Plaintiffs fail to state a claim for negligent hiring or11 supervision for two reasons. First, as detailed supra inPart III and infra inPart VB, plaintiffs'

13 upon w) i'l ch the ir complaint relies. Accordingly, AEG could.:not have hired or supervised Dr.14 . Murray at all. See supra at 6-7.1516 claim:

th e most epttt:!ft4erem~ntof an~nt supervisiamx;;,W,trat ~e ants had ac 1or onstructive ktiowle ge that D r. MUlTay as likely

Ie way that be waows, or should know, that the emp oyee, because of

17181920 Superior Court, 59 CaL App, 4th 1207, 1215 (1997). A plaintiff must plead that the employee21 "created a particular risk or hazard and that particular harm materializes." Doe v. Capital Cities22 50 Cal. App. 4th 1038, 1054 (1996).23 Plaintiffs have not alleged even one fact that indicates Defendants were warned or put on24 notice that Dr. Murray was unfit to be Michael Jackson's doctor. Plaintiffs do not allege25 ' Defendants had actual knowledge that Dr. Murray was administering propofol in Michael262728

1Dr. Murray's alleged conduct was so outside the mainstream of medical practice that he hasbeen criminally charged with homicide for administering the anesthesia drug propofoI to MichaelJackson. See Felony Complaint For Arrest Warrant, People v.Murray, Case No. SA073164(filed Feb. 8. 2010).9

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1 Jackson's home. Nor do plaintiffs adequately allege constructive knowledge. Instead. plaintiffs2 allege only, in con c lu so ry f as hi on . that AEG "knew o r sh ou ld have known that Murray was3 nightly administering sleep remedies to Jackson." Compl, < J I 42. Yet, plaintiffs tellingly do not4 cite a single/act suggesting how AEG could have obtained this knowledge. For instance, they do5 not suggest that Dr. Murray had any history of administering sleep remedies to patients, or that6 anyone told Defendants that Dr. Murray was administering sleep remedies to Michael Jackson.7 Nor do plaintiffs allege that ABO knew or should have known Dr. Murray was administering8 anesthesia ra th er th an "sleep remedies"-a critical distinction in te rm s of dangerousness. See9 CompI . 9 ( 29 (propofol is "commonly used to induce and maintain general anesthesia in a hospital10 setting"). Because plaintiffs' conc luso ry a ll ega tion is unsupported by facts, this Court should no11 assume its truffl for purposes of demurrer. See Delgado v.Am. Multi-Cinema, lnc., 72 Cal. App.12 4th 1403. 1~_~999) (court need not admit "contentions, deductions or conclusions of fact or13 law"}; fee also Ba atti v, Dept. oj Rehab., 97 Cal. App. 4th 344, 366 n.8 (2002) ("conc1usionary14 urvive demurrer").1 5

161718 rehearsals, id., that AEO diQ..llotconduct a background check before hiring Murray, id.19202122

23242526

2728

Yet, not one of these allegationsis sufficient to give Defendants actual or constructiveknowledge that Dr. Murray, a licensed physician; see id. '][102, would violate his professionalobligations by administering anesthesia to Michael Jackson at home. For instance, the amountDefendants allegedly paid Dr. Murray has no bearing on his fitness to treat Michael Jackson."Indeed, a more able physician likely commands better payment. Similarly. Defendants' allegedrequest that Dr. Murray assist Michael Jackson:in attending rehearsals could not conceivably havput D efendan ts on notice that Dr. Murray was li ke ly to adm in is te r anesthesia inMichaelJackson's home. How could it? A nd D efen dan ts' alleged faiJure to con duct a b ackground c hec kS In fact, AEG never paid Dr. Murray at all.



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1 would be pertinent only ifplaintiffs also alleged that such a check would have revealed facts2 sufficient to put Defendants on n otice of Murray's dangerousness. But plaintiffs did not-and3 could not-do so. So this allegation also fails to advance their claim. See, e.g., Juarez. 81 Cal.4 App. 4th at 397 (affirming summary judgment where employee's background revealed no5 specific warning that em ploy ee p ose d an un reason ab le risk ). F in ally . it is s elf -e vid en t th at6 someone under the care of a physician may appear ill for reasons other than his physician7 improperly harming him.8 Inshort, none of plaintiffs l allegations demonstrate that Defendants should have known9 Dr. Murray created the risk of the particular hann that materialized-Dr. Murray's

10 administration of an overdose of anesthesia to M ich ael Jack son in h is home. Accordingly, their11 c laim for egUgen t hiring and supervision necessarily must be dismissed.

RD C AUSE OF ACTION MUST BE D ISM IS SED .~-2 V.13 Plaintiffs' third cause of action for fraud an d constructive fraud must also be dismissed

16 See La17181920212223

ve sued co rpo ra te de fendan t s.their burden is even greater. A "fraud action against a corporation requires the plaintiff[s] toallege the names of the persons who made the allegedly fraudulent representations, their authorityto speak, to whom they spoke, what they said O r wrote, and when it was said or written."Tarmann v .. State Farm Mu; Auto. Ins. Co., 2 Cal. App. 4th 153, 157 (1991). Constructive fraudmust be pleaded with equal specificity. Schauer v. Mandarin Gems of Ca l., I nc . I 125 CaL App.4th 949, 960~61 (2005);9

2425262728

9 Though plaintiffs purport to bring a claim for constructive fraud. they plead none of itselements-most notably, they fail to plead they were in a special, confidential, or fiduciaryrelationship with an y defendant. See, e.g ., P eterson D ev. C o. v. Torrey P ines B ank, 23 3 Cal.App. 3d 103, 116 (1991). Thus, the claim must be dismissed for this additional reason as well.l!

D EMlJR RE R TO P LA IN TIF FS' C OM PL AIN T


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21222324

262728

t Plaintiffs fail entirely to meet this burden. Instead, they allege only generally that2 Defendants "made false representations to Michael Jackson that they were looking out for his best3 interests and well-being" and "that they would provide a doctor and equipment to Jackson to keep4 him healthy." Compl. I ) { 84. Plaintiffs do not actually specify the representations made. Nor do5 they make any attempt to identify who made these statements, when they were made. by what6 means, they were made, or whether the speaker had authority to make them. Instead, they state7 only that "AEG directors and managing agents, including Randy Phillips" communicated "these8 misrepresentations" "on June 18, 2009, as well as at other dates." [d. This allegation is wholly9 insufficient to meet plaintiffs' burden to plead fraud with specificity, as plaintiffs fail altogether to10 identify now, where, when, by whom, and inwhat form the claimed statements were allegedly11 made,IO Plaintiffs' allegations are therefore insufficient to state a claim for fraud. See, e.g.,12 Gold rich . v . N a tu al YSurgical Specialties, Inc., 25 CaL App. 4th 722.783 (1994) (sustaining13 demurrerbecause it was impossible "to determine what was said or by whom or inwhat manner"14 er the statements were made inwriting ... Of orally ... or by one or all of15

17 by AE1819 VI.2 0 emotional distress (filed by

plaintiff Michael Joseph Jackson. Jr. only) must also be dismissed for failure to state a claim. Thetort of negligent infliction of emotional distress is very limited in California. To state a viable

25

claim, plaintiff must allege he ~t(1) is closely related to the injury victim; (2) is present at thescene of the injury-producing event at the time it occurs and is then aware that it is causing injury10 At most, the complaint only identifies Randy Phillips as making some unspecifiedrepresentation on June 18, 2009. Even if alleging that numerous misrepresentations were madeover time, plaintiffs were required to provide a representative sample with the appropriate degreeof specificity. See Goldticb v. Natural Y Surgical Specialties, Inc., 25 Cal. App. 4th 772, 783(1994) C "in a case involving numerous oft-repeated misrepresentations, the plaintiff must, at aminimum. set out a representative selection of the alleged misrepresentations"). They did not.

12DEMURRER TO PLALNTIFFS~ COMPLAINT


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18

DEMURRER TO PLAJNTIFFS' COMPLAINT

to the victim; and (3) as a result suffers serious emotional distress ... .' Bird v, Saenz, 28 CaL 4t h2 9lO, 915 (2002) (citing Thing v. La Chum, 48 Cal. 3d 644 (1989)). These requirements are3 strictly construed. Jd . Inthe case of medical malpractice, a plaintiff must observe both the4 malpractice itself (and not merely its consequences), and must understand at the lime that he is5 observing malpractice. Bird, 28 Cal. 4th at 915-18' se e also Morton v. Thousand Oaks Surgical6 Hosp., 187 Cal. App. 4th 926,935-36 (20 1O)(affirming sustention of demurrer withoutleave to7 amend where plaintiffs observed their mother's suffering, but did not witness procedure that8 injured her).9 Plaintiff fails entirely to allege the required second element. White he states he10 "witnessed his father suffering" "during the course of Michael Jackson being injured and dying,"11 Compl. ~ 9 1. he does not allege he was present a t th e s ce ne of the injury-producing event12 (presumably D r. Murray's administration of pro pofo 1 to Michael Jackson) nor does he allege he13 was a:w~ hat the event was causing injury to Michael Jackson at the time it occurred.

1920

14 Accordingly must be dismissed for failure to. stat a claim.15 VU.16

17e fifth

not co-employees.122 A. Plaintiffs' Claim That AEG Employed Dr. Murray Is Contradicted by th e23 Draft AEG-Murray Agreement and SoMust Be Disregarded.24 Plaintiffs allege that AEG was the "controller and employer" of Dr. Murray, and that25 accordingly AEG should be vicariously liable for Dr. Murray's alleged negligence. Cornpl, ~ 96.26 Plaintiffs make two claims: first, that AEG orally agreed to employ Dr. Murray, and second, that27 AEG employed Murray through a written contract signed by Dr. Murray on June 24, 2010.28 Comp1. , r , 27, 32,. 40~42, 48. Both of these claims must be disregarded because they are

13


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1516171819

D EMURR ER TO P LA IN TIFF S' C OM PL AIN T

expressly refuted by the d ra ft AEG-Mur ray agreement, incorporated by reference in the2 complaint, See Putnam Decl. Ex. B.3 The draft, agreement shew s plainly that D r. M urray and a sub sidiary of A EG were4 negotiating a n in de pe n de n t c on tr ac to r agreement-but that agreement. b y it s ow n terms. never5 became effective. Rather, the draf t agreement indicates that absent formal, written endorsement6 by Michael Jackson, the parties would have no "rights or obligations" to' one another. Putnam7 Decl. Ex. B ![9. The agreement also reveals on its face that this formal, written endorsement8 never took place. On page six. there is a space for Michael Jackson to confirm "that he has9 requested [AEG's subsidiary] to engage Dr. Murray on the terms set forth herein on behalf of and10 at the expense of the undersigned." Putnam Decl. Ex. Bat 6. That signature box is blank. Id.11 Plaintiffs allege that AEG prepared and sent the draft agreement to ' Dr. Murray on June12urray signed the agreement on June 24. Compl. c : n : 48. Thus. the draft clearly13 refleete both parties> understanding as of June 24, 2009. B~ signing the document, Dr. Murray14 c ding that absent Michael Jackson's ~gnatUIe, there would be no

ding

20 Plaintiffs' claims that AEG employed Dr.21 agreement. It is well-settled that where a pleading relies on a document, it cannot replace the22 document's provisions with its own allegations, "The [document's] recitals. if contrary Lo23 allegations in th e pleading, will be given precedence, and the pleader's inconsistent allegations as24 to' the meaning and effect of an unambiguous document will be disregarded." 4 Witkin. Cal.25 Proc. 5th(2008) Plead, 431, p. 564. "That plaintiff may have intended or believed a binding26 contract came into existence upon his signing the letter is immaterial in the face of its language27 which plainly indicated otherwise." Beck. 211 Cal. App. 3d at 1563 (dismissing case on28 demurrer). Accordingly, plaintiffs' fifth cause of action for respondeat superior must be

14


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5

DEMURRER TO PLAlNTIFFS' COMPLAINT

1 dismissed. See id.; Bashfordv. A. Levy &1. Zentner Co., 123 Cal. App. 204, 209 (1932) (where2 complaint alleged a partnership but purported partnership agreement was unsigned. allegations3 properly struck); Hill v. Santa Barbara. 196 Cal. App. 2d 580. 586 (1961) (demurrer sustained4 where allegations concerning the meaning of a deed were contradicted by terms of the deed).

B . The Fifth Cause of Action Also Fails Because It Is Time-Barred and BecauseI6 Cannot Be Brought Against the Individual Defendants.7 Plaintiffs' fifth cause of action is also t ime-barred as to Katherine Jackson. Claims for8 wrongful death due to medical negligence are subject to a one-year statute of limitations under9 Code of Civil Procedure section 340.5. II Because this claim seeks to hold Defendants liable for10 the medical negligence of their purported employee, D r. Murray, it is subject to all the defenses.11 that could be brought by Dr. Murray himself. See Lathrop v. Healthcare Partners Med. Grp., 1112 2. 1423 (2904). Katherine Jackson failed to bring her claim within one year of13 Michae:nackson"s death on June 25, 2009. See Cempl, ~ 49, Accordingly, her claim warrants141516

r e fand Lei ek

17 flows t18 Ass'n, 42 Cal. 3d 4 90, 5 03 -Q .4 (1 91920 VIII. CONCLUSION.

iously

21 For the foregoing reasons, this demurrer should be sustained as to all causes of action.222324

Dated: December 30, 2010 MARVIN S. PUTNAMO 'M EL Y ENY &MYERS LLP

BY.~~ arvms:PUtnam- ..........2526

Attorneys for Defendants AEG Live, LLC,Anschutz Entertainment Group, Inc., Brandon Phillips,Paul Gongaware. and Timothy Leiweke2728 1 1 The children's claims are subject to statutory tolling under the same section.

15

Document AEG Katherine Jackson.

Documents

Transcript of Document AEG Katherine Jackson.