Tentative Ruling

Jackson V AEG Tentative ruling Feb 2nd 20: This is the ruling in text form so foreigns can translate user the translator:



KATHERINE JACKSON, vs. AEG LIVE, INC., et al., Case No. BC445597 Plaintiff, Defendants.




Defendants’ Demurrer to the Complaint is SUSTAINED, in part, and OVERRULED in part.

Defendants’ Demurrer to the Complaint is SUSTAINED as to the Third and Fourth causes of action only, with 20 days leave to amend.



Plaintiffs Katherine Jackson, individually and as the Guardian Ad Litem to Michael Joseph Jackson, Jr., Paris-Michael Katherine Jackson, and Prince Michael Jackson II, commenced action against Defendants AEG Live, Inc., Anschutz Entertainment Group, Inc., Brandon Phillips, Kenneth Ortega, Paul Gongaware, and Timothy Leiweke, alleging causes of action for: (1) breach of contract; (2) negligent hiring, training, and supervision; (3) fraud and constructive fraud; (4) negligent infliction of emotional distress; and (5) respondeat superior. The complaint alleges that Defendants hired a doctor to treat the decedent, the son and father of Plaintiffs, and that this doctor’s treatment led to the decedent’s death. The complaint further alleges that Defendants breached their duties to decedent by placing a desire for profits over the decedent’s health and safety.Defendants’ AEG Live, Anschutz Entertainment Group, Inc., Brandon Phillips, Paul Gongaware, and Timothy Leiweke demur to the entire complaint and to each individual cause of action. Defendants argue first the Plaintiffs lack the standing to bring the present action, Defendants next contend that the contracts themselves between the parties show that the individual causes of action lack merit. Defendants state that no duty has been created that could create a breach of contract because there was no undertaking and no special relationship created by the contracts. Defendants then argue that the claim for negligent supervision must fail because Plaintiffs failed to allege that Defendants had knowledge of the treatments being performed by Dr. Murray. Defendants next argue that the cause of action for fraud was not pled with the required specificity and that the cause of action for NIED fails because the complaint does not allege that Plaintiff was present at the time of the negligence or was unaware of what was occurring. Finally, Defendants argue that the fifth cause of action must fail as alleged against the individual defendants and because the cause of action is barred by the statute of limitations. In Opposition, Plaintiffs contend that the complaint has merit, and that the demurrers should be overruled. Plaintiffs first argue that this Court cannot consider the contracts referenced by Defendants because they did not attach the contracts to the complaint and because the effects of the contracts are in dispute. Plaintiffs then contend that they have standing to bring these causes of action. Plaintiffs further argue that the first cause of action is sufficiently alleged because Defendants had a duty under an undertaking and because of a special relationship. Plaintiffs then argue that the cause of action for negligent supervision is sufficiently alleged in the complaint and that fraud is pled with the required specificity. Plaintiffs next state that the cause of action for NIED does contain sufficient facts to establish that Plaintiff was present and aware of what was occurring. Finally, Plaintiffs argue that the fifth cause of action is not barred by the statute of limitations because that statute does not apply to Defendants and because the conduct complained of could be considered reckless. In Reply, Defendants argue that Plaintiffs’ opposition lacks merit. Defendants assert that this Court should consider the contracts in question. Defendants next argue that no special relationship or undertaking existed here. And to find one would expand the reach of these doctrines. Defendants then reiterate their prior arguments, stating that the second, third, and fourth causes of action are insufficiently alleged, Finally, Defendants state that they can assert the statute of limitations defense because the action is alleged against Defendants through respondeat superior.




Judicial Notice

In ruling upon demurrers, courts may consider matters that are proper for judicial notice. ABF Capital Corp. v. Berglass (2005) 130 Cal. App. 4th 825, 834 (considering an opposing party’s Request for judicial notice of out-of-state law). In addition, judges consider matters shown in exhibits attached to the


complaint and incorporated by reference. PerformancePlastering v. Richmond American Homes of California, Inc. (2007)153 Cal. App. 4th 659, 655. Defendants urge the court to take Judicial notice of the two contracts involved in this case: the contract between AEG and Michael Jackson and the contract between AEG and Dr. Conrad Murray. However, it would be improper to take judicial notice of a contract whose effect or contents are in dispute: Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint. A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. . [J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal. App 4th 97, 113-14 (citations and internal quotations Omitted). Here, there is a dispute as to whether a legal duty Arise from the contract and whether the contract created anemployer-employee relationship. As such, it would be improper For this Court to take judicial notice of the contracts for Purposes of this demurrer.B.Standing CCP ?367 states: Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. Defendants argue that the only real party in interest here is the estate of the decedent, and not Plaintiffs.CCP ?377.30 (A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest., and an action may be commenced by the decedent’s personal representative or, if none,by the decedent’s successor in interest.). However, CCP ? 377.60 states that [a] cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf: [a] The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. Here, the complaint alleges that Defendants caused the decedent’s death through wrongful acts including breach of contract, fraud, negligent hiring and supervision, and respondeat superior. As such, Plaintiffs have standing to pursue this compliant.

C: Demurrer


Applicable Law


A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal. App. 4th 740. 747. When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216,1228. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. [2004] 116 Cal. App. 4th 968, 994.Demurrers for uncertainty are strictly construed because discovery can be used for clarification and apply where defendants cannot reasonably determine what issues or claims are stated. Khoury v. Maly’s of Cal., Inc. [1993] 14 Cal. App. 4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group

2008) ?7:85.


First Cause of Action – Breach of Contract


The first cause of action alleges a breach of contract and other duties of care arising out of an undertaking, a special relationship, and civil conspiracy. This Court will address each in turn.


Undertaking A volunteer who, have no initial duty to do so, undertakes to provide protective services to another, will be found to have a duty to exercise due care in the performance of that undertaking if one of two conditions is met: either (a)the volunteers failure to exercise such care increases the risk


of harm to the other person, or (b) the other person reasonably relies upon the volunteers undertaking and suffers injury as a result. Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224,229. Therefore, a defendant’s undertaking will support the finding of a duty to another only if (a) the defendant’s action

increased the risk of harm to another or (b) the other person reasonably relied upon the undertaking to his or her detriment.Id. at 250. The Court in Delgado observed that the doctrine of negligent undertaking has been found where a swimming pool operator undertook a duty to provide lifeguards (Blankenship v.

Peoria Park District. (1994) 269 I11. App. 3d 416) , where an apartment complex landlord undertook duty to provide security guards (Feldv. Merriam (1984) 506 Pa. 383), where a park district undertook

to provide siren warning of impending flood (Wilson v. Texas Parks and Wildlife Dept. (Tex. 1999) .W.3d 634), and where a state undertook to erect and maintain fence between park and nearby river (Nelson by and Through Stuckman v. Salt Lake City(Utah 1996) 919 P.2d. 568).Plaintiffs allege that Defendants undertook to direct the course of the decedent’s medical treatment and that its involvement increased the risk of injury to the decedent by incentivizing Dr. Murray to disregard medical safety standards. Plaintiffs rely on Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551,557 to support their contentions that Defendants engaged in an undertaking. In Coffee, [an] employee applied for a pilot’s position with the employer (an aircraft manufacturer) and was examined to determine whether he was physically fit for that position. The evidence showed the examination was conducted for the protection of the employee (as well as the employer and the public), due to the hazards potentially created by the physical stresses on pilots from high altitude flight. Coffee v. McDonnell-Douglas Corp., supra, 8 Cal.3d at pp. 553-555. The examination should have revealed, but because of employer’s agent’s negligence failed to reveal, the employee suffered from cancer, which condition was not discovered until the employee (on returning from an extended flight) collapsed from exhaustion and was hospitalized. Felton v. Schaeffer (1991) 229 Cal.App.3d 229, 237. Here, the situation appears to be analogous. Plaintiffs allege that Defendants undertook the medical care of the decedent, and then negligently performed that undertaking by skewing the incentives for medical treatment. Although Defendants attempt to distinguish Coffee on the grounds that Dr. Murray was not an employee of Defendants, this Court is not taking judicial notice of those contracts and therefore must rely on the factual representations made in the complaint.


Special Relationship


A defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a ‘special relationship’ with the other person. Delgado, supra, 36 Cal.4th at 235. Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. Id. In addition to the relationship between proprietors and their tenants, patrons, or invitees, special relationships triggering a duty to protect another from foreseeable injury caused by a third party have been found in other contexts, including those of (i) common carriers and passengers, (ii) innkeepers and their guests, and (iii) mental health professionals and their patients. Id. At 236 n14. As such, [s]uch a special relationship is typically where the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare. Kockelman v. Segal (1998) 61 Cal.App.4th 491, 499. However, the Courts of Appeal have made it plain that the special relationship rule is not expansive.;Rather, it is narrow, to be applied in a limited class of unusual cases. Minch v. California Highway Patrol (2006) 140 Cal.App.4th 895, 905.Plaintiffs allege that a special relationship was created between the decedent and Defendants. Plaintiffs contend that Defendants had comprehensive control over the decedent’s assets and finances. The complaint alleges sufficient facts to show that the decedent was particularly vulnerable and dependent on Defendants and that Defendants had control over the decedent’s welfare. Such control is not only evident from the contract between the decedent and Defendants but also from the course of conduct between the two whereby Defendants allegedly controlled the decedent’s medical care. As such, sufficient facts have been alleged at this time to support the claim of a special relationship.


Civil Conspiracy


The elements of a cause of action for conspiracy are: (1) Defendants’ agreement to the objective and course of action to injure; (2) wrongful act pursuant to such agreement; and (3) resulting damage. Berg & Berg Ent., LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823 (noting elements and contrasting aiding and abetting). Se also Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2006) 16: 154 (citing

Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26, 47, and noting theory is not a separate cause of action). However, as the prior two grounds for creating a duty have been found sufficient, the cause of action for civil conspiracy is also sufficiently alleged. In addition, this Court does not believe that the injuries that resulted here were so unforeseeable that this cause of action must be dismissed.

2. Second Cause of Action – Negligent Hiring, Training or Supervision The elements of a cause of action for negligent supervision are: (1) employer’s supervising an employee; (2) who is incompetent or unfit; (3) employer had reason to believe undue risk of harm would exist because of the employment; and (4) the harm occurs. Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-14; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 Defendants argue that Plaintiffs failed to allege the Defendants had reason to believe undue risk of harm would exist because of the employment and that the harm occurred. [L]iability for negligence can be imposed only when the employer knows, or should know, that the employee, because of past behavior or other factors, is unfit for the specific tasks to be performed. Federico, supra, 50 Cal.App.4th at 1215. that the injury-causing effects would not lie beyond Plaintiff Jackson Jr.’s understanding and awareness. Especially in light of the minority (age) of Jackson Jr.5.Fifth Cause of Action – Respondeat SuperiorPlantiffs’ fifth cause of action seeks to hold defendants responsible for Dr. Murray’s conduct through the doctrine of respondeat superior. Plaintiffs acknowledge that the fifth cause of action cannot be pursued against the individual defendants, but only against the alleged employer; here AEG.However, Plaintiffs contest the remaining grounds upon which Defendants have demurred to this cause of action.As previously stated, this Court does not believe that it may take judicial notice of the contract between Dr. Murray and Defendants, and as such this Court cannot state that the contract’s own terms preclude this cause of action. ‘A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred’ . It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of applicable statute of limitation as an affirmative defense. Lockley v.Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal. App. 4th 875, 881. Accord State of Cal. ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal. App. 4th 402, 413; United W. Medical Ctrs. v. Sup. Ct. (1996) 42 Cal. App. 4th 500,505.Here, Defendants argue that this cause of action is barred

By the statute of limitations for medical malpractice claims.CCP ?340.5 provides:In an action for injury or death against a health care Provider based upon such person’s alleged professional Negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1)upon proff of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no Therapeutic or diagnostic purpose or effect, in the Person of the injured person. As such, the issue here is the ability of Katherine Jackson to bring this cause of action. Although CCP ?340.5 applies only to health care providers, Defendants can assert all defenses that their employee could, which would include the applicable statute of limitations. Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal. App. 4th 1412, 1424. As such, Defendants Can assert the statute of limitations as a defense.

CCP ? 340.5 defiles professional negligence as a negligent act or omission to act by a health care provider in the renering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed

hospital. The conduct here, as Plaintiffs observe, could be considered reckless. It is therefore not clear to this Court from the allegations in the complaint that the action must necessarily be barred. Benun v. Superior Court (2004) 123 Cal .App. 4th 113. The facts in the complaint also do not Indicate that the cause of action is barred because it is unclear when Katherine Jackson became aware of the negligence

that caused the decendent’s death.



Based upon the foregoing, the court orders that:1) Defendants’ Demurrer to the Complaint is SUSTAINED, in

Part, and OVERRULED in part.The Third and Fourth causes of action only, with 20 days leave

to amend.





DATED: February 2, 2011







Over the course of many court proceedings, the Judge will take certain issues/matters under consideration or submission, which means they will take additional research time outside of the actual court proceedings to review the case history, case law, law books, and other materials that are relevant in helping to determine what should be the most appropriate, legal, and fair decision/ruling on their cases. Additionally, the Judge does have research attorneys at their disposal to help in this process. Research attorneys do a TREMENDOUS amount of detective work for the courts: they do ongoing and very meticulous legal research and they compile very detailed and law-specific notes for the court (Judge) to review in his/her efforts to reach the best decisions/rulings. THOSE NOTES ARE COMPLETELY CONFIDENTIAL AND ARE NOT RELEASED TO THE ATTORNEYS ON THE CASE NOR TO THE PUBLIC. These notes are highly valuable to the court (Judge) because, once the Judge has carefully reviewed them, he/she can utilize them in drawing up Tentative Rulings, which are the Judge’s INITIAL AND POSSIBLE DECISIONS on particular issues. Tentative means: –provisional, unconfirmed, indefinite, unsettled, NOT FINAL, open to consideration– Tentative Rulings are announced as such, that they are NOT necessarily the FINAL decision, although most attorneys know that they may more than likely become final. Not all Judges use Tentative Rulings. Oftentimes some Judges will provide Tentative Rulings to the attorneys on the case to give them a heads-up on the direction in which the Judge might be heading– like a roadmap that the attorneys can use to help them figure out what THEIR next steps must be AND so that they can do research themselves as they formulate their arguments, Motions, and requests. In many instances, the Tentative Rulings will eventually become the final decisions BUT are certainly open for revisions, modifications or even deletions if the Judge deems it necessary after further reviews and/or after valid legal arguments from the attorneys on the case. Tentative Rulings are most frequently used in Civil cases but are also used in Criminal cases.




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