Judge: H. Jay Ford, III, Case: 23SMCV04562, Date: 2024-11-08 Tentative Ruling

Case Number: 23SMCV04562    Hearing Date: November 8, 2024    Dept: O

  Case Name:  Motsinger v. Cosby, et al.

SUBJECT:                 DEMURRER TO FAC WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendants William Cosby, Jr. and Jemmin, Inc.

RESP. PARTY:         Plaintiff Donna Motsinger

TENTATIVE RULING

            Defendants William Cosby, Jr. and Jemmin, Inc.’s Demurrer to the FAC is OVERRULED. Plaintiff has alleged all the necessary elements to revive her sexual assault claim under CCP § 340.16(e).   

REASONING

As a general matter, 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.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Generally, Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

“Code of Civil Procedure section 452 provides in full: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238, quoting CCP § 452.) On a demurer “the allegations of the complaint must be read in the light most favorable to the plaintiff.” (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1557.)

I.                Demurrer to the Complaint based on Statute of Limitations—OVERRULED

Defendants William Cosby, Jr. (“Cosby”) and Jemmin, Inc (“Jemmin”) (collectively “Defendants) argue that Plaintiff Donna Motsinger’s (“Motsinger”) claims are barred by the statute of limitations because Motsinger fails to plead the necessary facts to revive the claim under CCP § 340.16(e). Motsinger brings her claims under CCP § 340.16)(e), part of the Sexual Abuse and Cover Up Accountability Act (the “Act”) (See Compl., ¶ 14 [“All claims brought against all parties by Ms. Motsinger are revived under California Code of Civil Procedure § 340.16(e).”].)

CCP § 340.16(e) states the following:

(e)(1) Notwithstanding any other law, any claim seeking to recover damages suffered as a result of a sexual assault that occurred on or after the plaintiff's 18th birthday that would otherwise be barred before January 1, 2023, solely because the applicable statute of limitations has or had expired, is hereby revived, and a cause of action may proceed if already pending in court on January 1, 2023, or, if not filed by that date, may be commenced between January 1, 2023, and December 31, 2023.

(2) This subdivision revives claims brought by a plaintiff who alleges all of the following:

(A) The plaintiff was sexually assaulted.

(B) One or more entities are legally responsible for damages arising out of the sexual assault.

(C) The entity or entities, including, but not limited to, their officers, directors, representatives, employees, or agents, engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault by an alleged perpetrator of such abuse.

(Code Civ. Proc., § 340.16, subd. (e), emphasis added.)

CCP § 340.16(e) defines “legally responsible,” as “the entity or entities are liable under any theory of liability established by statute or common law, including, but not limited to, negligence, intentional torts, and vicarious liability. (Code Civ. Proc., § 340.16, subd., (e)(4)(C).)

CCP § 340.16(e) defines “[e]ntity” as a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity. (Code Civ. Proc., § 340.16, subd., (e)(4)(B).)

CCP § 340.16(e) defines “Cover up” as “a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.” (Code Civ. Proc., § 340.16, subd. (e)(4)(A).) “[N]othing in the language of the statute requires that the alleged cover up involve a previous instance of sexual assault by the same individual who later assaulted the plaintiff. The statutory language requires only that the plaintiff allege a cover up of a previous instance or allegations of sexual assault by “an alleged perpetrator of such abuse.” (Jane Doe #21 (S.H.) v. CFR Enterprises, Inc. (2023) 93 Cal.App.5th 1199, 1212.)

Motsinger filed her claim on 9-27-23, thus within the filing timeframe to bring a claim under CCP § 340.16(e).  Motsinger alleges she was sexually assaulted by Cosby. (FAC., ¶ 6.)  Motsinger alleges that Cosby “was operating as a sole proprietor at all relevant times,” was at the Circle Star Theatre “at the time of the sexual assault,” “was there for business purposes,”  and  “Cosby's actions and inactions leading up to, and at the time of the sexual assault were in his capacity as sole proprietor.”  (Id., ¶ 8.) Motsinger alleges that "Mr. Cosby was at the Circle Star for personal profit, arranged the limousine for a business purpose, and arranged for sex (through Ms. Motsinger) and drugs to be available to him for a business purpose. Mr. Cosby treated all expenses associated with his performance that night as business expenses, including the expenses to transport Ms. Motsinger through the limousine and to provide . . . the wine that drugged her[.]" (Id., ¶¶ 36, 51, 60.)

Motsinger has therefore plead that at least one entity is legally responsible for the damages arising out of the sexual assault, by pleading Cosby was acting as a sole proprietor. “[A] sole owner is a sole proprietorship and a sole proprietorship is not a legal entity separate from its individual owner,” meaning that a sole proprietor is legally responsible for all torts committed by the sole proprietor. (Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1449.) Additionally, Sole proprietorships are specifically mentioned in the entity definitions under CCP § 340.16(e). The allegations of a sole proprietorship are not made in bad faith as argued by Defendants since sole proprietorships are a regularly occurring business structure within the entertainment business, or Cosby’s industry, and are not required to have a DBA or separate business name. (See Twenty-Nine Palms Enters. Corp. v. Bardos, 210 Cal.App.4th 1435, 1448.)

Additionally, Motsinger alleges an alternative theory of entity responsibility that Jemmin, “the production company through which Mr. Cosby worked at all relevant times . . . . and remains the chief executive officer,” is legally responsible for damages arising out of the assault. (FAC., ¶¶ 6-7, 9, 11-12.) Motsinger alleges ‘Jemmin, Inc. was set up for the sole purpose of satisfying Mr. Cosby's business and related pursuits including all wants and needs of Mr. Cosby at relevant performances – including drugs and sex from people like Ms. Motsinger.” (Id., ¶ 12.) Motsinger alleges "Mr. Cosby also ratified his conduct on behalf of Jemmin, Inc., by pursuing the sexual assault while exercising his CEO responsibilities, knowing of such assaults and refusing to investigate himself or terminate himself . . . Were the law to allow Jemmin, Inc., to get a free pass for investigating the conduct of its CEO and refusing to terminate its CEO for such conduct, the law would allow Mr. Cosby to abuse the privileges and benefits of a corporation for his personal gratification." (Id., at ¶33).  Defendant Circle Star Theater Corp. (“Circle Star”) “had the power to control the activities backstage where Ms. Motsinger was drugged by Mr. Cosby and had the power to ensure the safety of guests and invitees against the sexual assault at the hands of its performers” and thus is legally responsible for the damages arising out of the assault. (Id.., ¶¶ 10, 40–42.) Motsinger alleges Jemmin “engaged in a cover up” through their director and employee Cosby, by using drugs to erase Motsinger’s ”memory of the assault,” thus preventing “information relating to a sexual assault from becoming public or being disclosed by the plaintiff.” (FAC., ¶ 16.) Additionally, Motsinger alleges Jemmin’s employees, Cosby’s limousine driver and security detail, “had or should have had notice of Mr. Cosby’s cover up attempts and facilitated the cover ups by failing to report Mr. Cosby’s prior assaults.” (Ibid.)

Motsinger successfully alleges a negligence claim as to Jemmin to reach the “legally responsible” definition of CCP § 340.16(e)(4)(C). “The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)  “In a case involving harm caused by a third party, 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,” which can arise out of an “employer and employee” relationship.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 215.) The analysis of whether a corporate defendant has a legal duty to protect a plaintiff from sexual abuse at the hands of its own employee, or agent is a two-step process which includes: (1) the court must decide whether there exists a special relationship between the parties giving rise to an affirmative duty to protect; and (2) if a special relationship between parties exists the Court then analyzes the Rowland Factors which 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.” (Id., at pp, 209, 217.)

“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 relationship between the defendant and the dangerous third party is one that ‘entails an ability to control [the third party's] conduct.” (Safechuck v. MJJ Productions, Inc. (2023) 94 Cal.App.5th 675, 691–692, reh'g denied (Sept. 6, 2023), review denied (Nov. 15, 2023).) “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 [Defendant].” (Ibid., at p. 695.) “[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.” (Ibid., at p. 680.)

Motsinger pleads that “Jemmin had a special relationship with its chief executive officer, sole shareholder, director, and key employee Defendant Bill Cosby to protect against the sexual assault of third party Ms. Motsinger.” (FAC, ¶ 38.) Motsinger further defines the special relationship by stating:

Jemmin, Inc. was the corporation that furnished the services of Bill Cosby at all relevant times as a recording entertainer, owned copyrights and collected royalties on the exploitation of those recordings. Defendant Bill Cosby was the chief executive officer and a director of the board of directors of Jemmin, Inc. Therefore, Jemmin, Inc. had a duty to take reasonable steps to control the conduct of Defendant Bill Cosby and prevent sexual assaults of third parties at the hand of Defendant Bill Cosby, particularly in the context of entertainment services Mr. Cosby rendered on the night of Ms. Motsinger's sexual assault.to protect Motsinger against the alleged sexual assault

. . . .

Jemmin, Inc.'s agents or employees, including drivers and security personnel for Mr. Cosby, frequently transported women both to, and from, locations where Mr. Cosby sexually assaulted them. In such role, agents and/or employees of Jemmin, Inc., witnessed the sexual abuse of Mr. Cosby's victims or circumstances suggesting sexual abuse, including multiple instances of Mr. Cosby providing drugs to women who later became unconscious and had to be carried to vehicles, multiple instances of women becoming unconscious in Mr. Cosby's presence only for him to carry them to an isolated area and spend the night with them, and instances of Mr. Cosby inappropriately touching or groping women unconscious in his limousine who could not give consent.

(FAC, ¶ 38, subd. (a).)

Motsinger alleges that Jemmin had the ability to control Cosby’s conduct. (FAC, ¶ 12, 38, subd. (c).) Additionally, Motsinger alleges sufficient facts to satisfy the Rowland Factors. A foreseeability of harm exists where a company is alleged to have allowed a known sexual predator agent/owner of the company to be alone with “unconscious women,” and a connection allegedly exists between Jemmin’s conduct in failing to warn or intervene with the eventual alleged sexual assault. (See e.g. Safechuck v. MJJ Productions, Inc. (2023) 94 Cal.App.5th 675, 691–695.)  While Safechuck concerned the protection of children, the same analysis is applicable to the abuse of “unconscious women.”

Motsinger alleges Jemmin breached its duty of care to protect her, and that she was harmed as a direct and proximate result of Jemmin’s negligence. (Id., ¶¶ 39, 43) Thus, Motsinger has alleged the required elements of a negligence to satisfy the “legally responsible” definition under CCP § 340.16(e)(4)(C).

Motsinger sufficiently alleges a coverup under CCP § 340.16(e)(2)(C) by alleging that Cosby either in his capacity as an officer, director, or agent of Jemmin, or as a sole proprietor, engaged in a concerted effort to coverup, or hide evidence relating to past sexual assaults committed by him, through the use of "quaaludes and/or other amnesia-inducing sedatives" to cause victims to fall unconscious and erase their memory, thereby preventing information relating to the sexual assaults from becoming public. (See FAC, ¶ 16–18.) Motsinger pleads the existence of the alleged Defendants coverup of past sexual assaulte:

Defendant Cosby additionally had a custom and practice of having staff and employees, including employees of Jemmin, Inc., such as drivers, security personnel, and house staff in Jemmin, Inc.'s and/or Bill Cosby as a sole proprietor's employ, sign confidentiality or nondisclosure agreements to work for Jemmin, Inc., and/or Bill Cosby. Through the use of confidentiality and/or nondisclosure agreements, Jemmin, Inc., and Bill Cosby, engaged in a concerted effort to hide evidence relating to Bill Cosby's prior sexual assaults, many of which are described above, which officers, directors, agents, and/or employees of Jemmin, Inc., and/or Bill Cosby, had notice were occurring, and prevent said officers, directors, agents, and/or employees from going public, or disclosing the information to individuals such as Ms. Motsinger.

(FAC, ¶¶ 17(h), 19.)

Defendants argue Motsinger fails to allege facts demonstrating that Jemmin would be vicariously liable for Cosby’s alleged torts. However, Motsinger alleges Jemmin authorized and ratified the acts via Cosby, as the Chief Executive Officer of Jemmin. (See FAC., ¶¶ 33, 35, 50, 59; see also C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110, as modified on denial of reh'g (Feb. 3, 2009) [“As an alternate theory to respondeat superior, an employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort.”].) Defendant argues that a CEO of a company, like Cosby here, cannot ratify their own conduct. The authority relied on by Defendant cited authority is not binding on this Court, is not persuasive, and is distinguishable. Neither Mo. Pub. Entity Risk Mgmt. Fund v. Investors Ins. Co. of Am., 338 F.Supp. 2d 1046 (W.D. Mo. 2004) or Waltz v. Dunning, 2014 U.S. Dist. LEXIS 178660 (N.D. Ala. 2014), involve closely held corporations where the CEO/Owner is the only officer.

Moreover, Motsinger has included allegations in the FAC that Cosby was a sole proprietor, as analyzed above, which meets the entity requirements of CCP § 340.16(e)(4)(B). Even if Cosby cannot legally ratify his own behavior as a CEO/Sole Owner of Jemmin, he is liable for his actions as a sole proprietor of his sole proprietorship. Additionally, the fact that the legislature included “sole proprietorships” within the statute demonstrates the legislature’s liberal attitude towards the meaning of “entity” within the statute, as sole proprietorships have very limited, or barely any, formalities compared to LLC’s and Corporations. (See Friedman, et al., California Practice Guide: Corporations ¶ 2:3 (2024) [Other than complying with any applicable licensing requirements, "[n]o formalities are required to engage in business as a sole proprietor."]

Defendants argue that the cover up is not properly alleged because Motsinger does not specifically allege that Jemmin “attempted to hide evidence, through the use of nondisclosure agreements, confidentiality agreements, or otherwise.” (Demurrer, p.10.) However, the statute does not state nondisclosure or confidentiality agreements alone are the only way to allege a cover up. Motsinger alleges sufficient facts to support multiple means of an alleged cover up by Jemmin under CCP § 340.16(e)(4)(A.)

The Court notes Defendants repeatedly argues the allegations in the complaint are made in bad faith because the facts alleged are not true. As noted by Defendants, however, there are other remedies for such pleadings filed in “bad faith.” Here, the Court must accept the facts alleged in the FAC to be true however improbable they may be. Del E. Webb Corp. v. Structural Materials Co (1981) 123 Cal.App.3d 593, 604. (“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.”)