Judge Holly J. Fujie, Case Number: 23STCV31052, Date: 2024-05-06 Tentative Ruling

This is an action arising from the alleged sexual assault of Plaintiff Jane Doe (“Doe”) by Defendant Tommy Lee (“Lee”) during a helicopter ride from San Diego to Van Nuys. Plaintiff Doe alleges in her original complaint, filed on December 19, 2023, that in February of 2003, she and Lee were riding in the helicopter of Defendant Natural High Helicopters, LLC dba SoCal Helicopters (“Helicopters LLC”)[1] when the assault took place. (First Amended Complaint (“FAC”) ¶¶ 1-2.) The parties stipulated to the filing of an amended complaint and on February 21, 2024, Plaintiff Doe filed the operative FAC alleging causes of action for: (1) sexual assault/battery; (2) gender violence; (3) intentional infliction of emotional distress; and (4) negligence.

Plaintiff brings her claim pursuant to the Sexual Abuse and Cover Up Accountability Act, Assembly Bill 2777 (“AB 2777”) [FAC ¶ 5], codified in California Code of Civil Procedure section 340.16(e) (“Section 340.16(e)”), which provides that a claim seeking to recover damages suffered as a result of a sexual assault that occurred on or after a plaintiff’s 18^th birthday, otherwise barred, may be brought subject to this act between January 1, 2023 and December 31, 2023.

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

(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.

(3) F to allege a cover up as required by subparagraph (C) of paragraph(2) as to one entity does not affect revival of the plaintiff’s claim or claims against any other entity.

a) “Cover up” means a concerted effort to hide evidence relating to a sexual assault or other inappropriate conduct, communication, or activity of a sexual nature that incentivizes individuals to remain silent or prevents information relating to a sexual assault or other inappropriate conduct, communication, or activity of a sexual nature from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.

b) “Entity” means a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity.

c) “Legally responsible” means that 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.

On March 23, 2024, Defendants filed the instant Demurrer (the “Demurrer”), along with a Request for Judicial Notice (“RJN”). Accordingly, Defendants request that the Court take judicial notice of the following:

(1) The January 2, 2020, Secretary of State Certificate of Dissolution for Mayhem Touring, Inc. (“Mayhem”), retrieved from the California Secretary of State website on March 21, 2024, Exhibit 1.

(2) The February 17, 2006, Articles of Incorporation of Tommy Lee, Inc, (“TLI”) retrieved from the California Secretary of State website on March 21, 2024, Exhibit 2.

(3) The Entity details for Helicopters LLC, retrieved from the Nevada Secretary of State website on March 21, 2024, Exhibit 3.

(4) The Entity details for Mayhem, retrieved from the California Secretary of State website on March 21, 2024, Exhibit 4.

(5) The November 5, 2018, Statement of Information for Mayhem, retrieved from the California Secretary of State website on March 21, 2024, Exhibit 5.

(6) The November 13, 2023, Statement of Information for TLI, retrieved from the California Secretary of State website on March 21, 2024, Exhibit 6.

(7) The Legislative History for California Statutes of 2022, Chapter 442, Assembly Bill 2777, prepared by LRI History LLC, Exhibit 7.

On April 23, 2024, Plaintiff filed their opposition to the Demurrer, along with her own RJN, requesting notice of the existence of the First Amended Complaint for Damages filed on March 23, 2023, in the lawsuit captioned Acevedo, et al. v. eXp Realty, LLC, et al., Case No. 2:23-cv-01304-AB-AGR (C.D. Cal.) (“Acevedo”), Exhibit A.

Along with Defendants’ Reply to the opposition, filed on April 29, 2024, Defendants filed an opposition to Plaintiff’s RJN. Defendants argue that granting Plaintiff’s RJN would be an improper use of judicial notice of the “meaning of a document based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document,” the Court may still judicially notice the existence of a document. Fremont Indem. Co v. Fremont Gen. Corp., 148 Cal. App. 4th 97, 114-15 (2007). “[A]lthough the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” Elford v. Hiltabrand, 63 Cal. App. 2d 65, 73 (1944) (citing Communist Party v. Peek, 20 Cal.2d 536, 546 (1942)) (“Whenever there is possibility of dispute judicial notice cannot be taken of the existence of a claimed fact.”).

The Court does note that Plaintiff has provided no evidence that the pleading presented for judicial notice in Acevedo was itself challenged or otherwise tested and accepted as sufficient by that court; therefore, it provides no evidence that the pleading presented has been evaluated under AB 2777 in the district court where it was filed or in this or any court. Of course, even if Acevedo had been so tested, such a determination would not be binding on this Court.

Plaintiff’s Request for Judicial Notice is granted to the extent set forth above.

Defendants have properly satisfied their requirement to Meet and Confer with Plaintiff before filing the Demurrer. (Frid Decl. ¶¶ 3-7, Exs. A-C.)

Defendants Lee, TLI and Mayhem demur to the First, Second, Third and Fourth Causes of Action alleged in Plaintiff Doe’s FAC. Defendants argue that Plaintiff has failed to satisfy the requirements of AB 2777 and Section 340.16(e) and that the revival of claims provided for therein does not apply. On that ground, Defendants assert that all four causes of action are time-barred by the statute of limitations. “A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer.” Iverson, et al v. Berwald, 76 Cal. App. 4th 990, 995 (1999).

Defendants argue that Plaintiff’s claims do not qualify for revival under AB 2777 and Section 340.16(e) because Plaintiff fails to allege either that: (1) a legal entity is responsible for damages; and (2) Defendant entities were responsible for a “cover up,” according to the definition in AB 2777 and Section 340.16€. (Dem. at pp. 14-17.) Defendants argue that no legal entity Defendant could be responsible for damages arising out of the alleged conduct in February of 2003 because neither of the two legal entities that Plaintiff contends are responsible for damages were in existence at that time. (Dem. at p. 9.). Defendant provides evidence that TLI was not formed until February 17, 2006 and Mayhem was suspended in February of 2002. (Dem. at Exs 1-2 and 4.)

In opposing the Demurrer, Plaintiff asserts that: (1) Defendant TLI may be liable under a successor liability theory; and (2) public records reveal that Mayhem was not suspended but merely delinquent and, thus, still an operable entity at the time of the underlying events. (Opp. at p. 13.)

With regard to TLI, the Court notes that Plaintiff’s assertion that there must have been an eligible entity covering the services of Defendant Lee during the time of the alleged assault to which TLI is the successor does not appear to be based upon any actual “information and belief” regarding specific named predecessor entity but instead relies upon a vague “industry standard” for its assertion that there must have been such an entity.

With regard to Mayhem, the Court does not make a finding regarding the status of Mayhem, as such is not apparent on the face of the document presented, i.e., Defendants’ RJN, Ex. 4.

In their reply, Defendants argue that even if either legal entity had been in existence at the time of the alleged conduct, Plaintiff still fails to plead facts to support the allegation of a “cover up” as required and defined by the text of Section ABB 2777 and Section 340.16(e). (Reply at p. 9.)

In accordance with definition provided by AB 2777 and Section 340.16(e), the Court finds that Plaintiff has not pled facts sufficient to support the theory of the necessary “cover up” because Plaintiff has not asserted facts evidencing Defendants’ “concerted effort to hide evidence relating to sexual assault.” (AB 2777.). Plaintiff instead makes vague allegations that the Court finds insufficient to support the revival of a claim under AB 2777 and Section 340.16(e).

While Plaintiff’s reference to the Acevedo case as an action alleging sufficient facts to be covered by the revival statute, Acevedo is distinguished from Plaintiff’s action in that while it also alleged sexual assault, the pleading specifically alleges that Defendant Michael Bjorkman “threaten[ed]” Plaintiff to not say anything about it. (Pl’s RJN ¶ 47.) No such facts are alleged in the FAC here.

Although the FAC alleges that: “[o]n information and belief, Martz, Lee, Defendants, and Does 1-20 knew of and were aware of such sexual assaults and engaged in a concerted effort to prevent information or evidence of such sexual assaults from being made public or disclosed to anyone, including Plaintiff,” these allegations are conclusory in nature and do not allege specific actions directed to Plaintiff as in Acevedo. (FAC ¶ 35.) Thus, Plaintiff has not pled facts sufficient to cause the revival of her claims under AB 2777 and Section 340.16(e). As such, Plaintiff’s action as alleged is effectively time-barred.

Because Plaintiff has failed to assert facts to support the “cover up” requirement of AB 2777 and Section 340.16(e), the Court need not resolve the issue of Defendants’ legal entity existence at this time.

The Court SUSTAINS Defendants’ Demurrer with twenty (20) days leave to amend. The Court notes that if any Second Amended Complaint filed does not cure the defects discussed above, the Court will consider the sustaining of a demurrer thereto without leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Helicopter LLC was dismissed from the action, without prejudice, by Plaintiff on March 15, 2024.