Demurrer in Jane Doe vs Mission Rowing et al| Trellis.Law

On April 25, 2023 a Motion,Ex Parte was filed involving a dispute between Doe, Jane, and Groom, Conal, Mission Rowing, Nagy, Carol, for Unlimited Civil Rights (08) in the District Court of Santa Barbara County.

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1 GRIFFITH & THORNBURGH, LLP
ATTORNEYS AND COUNSELORS
8 EAST FIGUEROA STREET, SUITE 300
2 SANTA BARBARA, CA 93101-2762
TELEPHONE: 805-965-5131
TELECOPIER: 805-965-6751
3

4 John C. Eck, SBN 194975

5 Attorneys for Defendant, Mission Rowing

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SANTA BARBARA - COOK DIVISION

11 KATHERINE LORD-KRAUSE, CASE NO.: 23CV01793

12 Plaintiff, DEFENDANT MISSION ROWING'S
NOTICE OF DEMURRER AND
13 v. DEMURRER TO FIRST AMENDED
COMPLAINT; MEMORANDUM OF
14 MISSION ROWING, a California nonprofit POINTS & AUTHORITIES IN
public benefit corporation; CONAL GROOM, SUPPORT THEREOF; DECLARATION
15 an individual; CAROL NAGY, an individual; OF JOHN C. ECK RE MEET AND
and DOES 1-50, inclusive, CONFER
16
Defendants. Date: October 11, 2023
17 Time: 8:30 a.m.
Dept: SM3
18
Trial Date: None Set
19
[Assigned for All Purposes to the Honorable
20 Timothy J. Staffel]

22 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

23 PLEASE TAKE NOTICE THAT on October 11, 2023, at 8:30 a.m., or as soon

24 thereafter as the matter may be heard, in Department SM3 of the above-entitled Court, located at

25 312 E. Cook Street, Building E, Santa Maria, California, Defendant Mission Rowing (hereinafter

26 "Defendant" or "Mission Rowing") will, and hereby does, demur to the First Amended

27 Complaint filed by Plaintiff Katherine Lord-Krause (hereinafter "Plaintiff') in the above-

28 referenced action.

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6 EAST FIGUEROA STREET - STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
SANTA BARBARA, CA 93101-2762
1 This demurrer is brought on the grounds that the First, Second, Third, Fifth, Sixth,

2 Seventh, and Tenth Causes of Action all fail to state facts sufficient to state those causes of

3 action against this demurring Defendant.

4 This demurrer will be based on this Notice, the attached Memorandum of Points and

5 Authorities in support thereof, the Declaration of John C. Eck, the pleadings on file of which the

6 Court is requested to take judicial notice, and upon such other and further oral and/or

7 documentary evidence as may be presented at the hearing on this demurrer.

8 ated: September 11 , 2023 GRIFFITH & THORNBURGH, LLP

10 By: ~c~
John C. Eck
11 Attorneys for Defendant, Mission Rowing

22
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8 EAST FIGUEROA STREET - STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
SANTA BARBARA, CA 83101 · 2762
1 DEMURRER

2 Defendant Mission Rowing demurrers, generally and specially, to the First Amended

3 Complaint ("F AC") filed by Plaintiff on the following grounds:

4 1. The First Cause of Action for Assault and Battery fails to allege sufficient facts to

5 state a cause of action against Defendant. (Civ. Proc. §430.lO(e).)

6 2. The Second Cause of Action for Sexual Battery fails to allege sufficient facts to

7 state a cause of action against Defendant. (Civ. Proc. §430.10(e). )

8 3. The Third Cause of Action for Sexual Harassment fails to allege sufficient facts to

9 state a cause of action against Defendant. (Civ. Proc. §430.lO(e).)

10 4. The Fifth Cause of Action for Violation of Ralphs Civil Rights Act fails to allege

11 sufficient facts to state a cause of action against Defendant. (Civ. Proc. §430. lO(e).)

12 5. The Sixth Cause of Action for False Imprisonment fails to allege sufficient facts

13 to state a cause of action against Defendant. (Civ. Proc. §430.lO(e).)

14 6. The Seventh Cause of Action for Intentional Infliction of Emotional Distress fails

15 to allege sufficient facts to state a cause of action against Defendant. (Civ. Proc. §430.lO(e).)

16 ated: September 11, 2023 GRIFFITH & THORNBURGH, LLP

18 By:
John C. Eck
19 Attorneys for Defendant, Mission Rowing

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8 EAST FIGUEROA STREET - STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
SANTA BARBARA, CA 93101-2762
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 The FAC alleges that Plaintiff was a female rower who trained with Defendants Mission

4 Rowing and Conal Groom ("Groom"), an alleged employee of Mission Rowing, in Santa Ynez,

5 California. Plaintiff alleges that Groom forcibly detained and restrained, falsely imprisoned,

6 assaulted, battered, and sexually battered her during the late-night hours of August 13, 2021,

7 when Plaintiff was 17 years old.

8 Plaintiff asserts various intentional causes of action against Groom arising from an

9 alleged sexual battery on August 13, 2021. She also alleges that Mission Rowing is liable for

10 these intentional causes of action by claiming that Mission Rowing "ratified" the conduct of

11 Groom, and that Groom' s alleged sexual battery was done within the course and scope of his

12 employment. However, as set forth below, the FAC falls short of alleging sufficient facts that

13 would support liability against Mission Rowing, the employer of Groom, for these intentional

14 causes of action.

15 The FAC sets forth various alleged actions of Groom from 2002 to 2021. It also

16 generally alleges that Mission Rowing ratified Groom's actions during this period. However, as

17 the FAC concedes, Mission Rowing was not even in existence and operating until at the earliest

18 May 2019 (FAC, ,isl) or the "summer of2019." (i!68.) Thus, any of Groom's actions prior to

19 Mission Rowing's existence in 2019 cannot serve as the basis for liability based upon the theory

20 of respondeat superior (course and scope of employment) or ratification.

21 Recognizing that many of the intentional actions alleged against Groom cannot be

22 imputed to Mission Rowing because they fall outside the course and scope of employment, the

23 FAC repeatedly inserts the phrase that Groom "engaged in these abusive actions toward Plaintiff

24 in his position and capacity as a rowing coach for, and during the course and scope of his

25 employment with, Mission Rowing, and in furtherance of Mission Rowing's enterprise." Yet,

26 alleging the actions were within the course and scope of employment, and in furtherance of

27 Mission Rowing's enterprise, are legal conclusions. The facts as alleged in the FAC do not

28 support these conclusory allegations.

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B EAST FIGUEROA STREET - STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
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1 II. ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

2 The FAC contains many allegations of past conduct by Groom, even dating back to more

3 than 16 ~ years ago (F AC, if21 ). The FAC concedes that Mission Rowing was not even in

4 existence and operating until at the earliest May 2019 (F AC, if5 l) or the "summer of 2019."

5 (if68.) The facts that give rise to the causes of action to which Mission Rowing demurs to took

6 place on August 13, 2021.

7 The FAC alleges that on the evening of August 13, 2021, after 9:00 p.m., Groom invited

8 Plaintiff to his living quarters to have a private good bye before Plaintiff returned to her home

9 town on Seattle. (FAC, ififl44, 147.) Plaintiffs friends expressed concern at the invitation.

10 (FAC, ifl46.) Plaintiff went to Groom's place of residence, Groom blocked her from getting up

11 from her stool, brushed his hand against Plaintiffs breast, touched her waist, buttocks, thighs,

12 and inner thigh area. (FAC, ififl54, 155.)

13 That evening at 11:04 p.m., Plaintifftexted a Mission Rowing coach to alert him what

14 happened. (FAC, ifl66.) Early the next morning, the Mission Rowing coach texted back and sai

15 that is in no way appropriate or normal, and he told Plaintiff he had to report the incident. (F AC,

16 ifl67.) The Mission Rowing coach explained that he was a mandated reporter, and on August

17 15, 2021, he reported the incident to Santa Barbara County Child Welfare Services, which was

18 subsequently reported to the Santa Barbara County Sheriffs office. (FAC, ,r,r172, 174.) Mission

19 Rowing's board was informed of the incident on August 16, 2021, and the board met and

20 "purportedly" removed Groom from coaching Mission Rowing thereafter. (FAC, ,r,r176, 180.)

21 There are no allegations in the FAC that Groom was criminally charged.

22 III. LEGAL ANALYSIS

23 A. General Law on Demurrers

24 The function of a demurrer is to test the sufficiency of the allegations of the complaint.

25 (Code Civ. Proc.§ 589; Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) A

26 court is to "treat the demurrer as admitting all material facts properly pleaded, but not

27 contentions, deductions, or conclusions of fact or law," and may also consider "matters which

28 may be judicially noticed." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A general demurrer is

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! EAST FIGUEROA STREET - STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
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1 appropriate where the complaint "does not state facts sufficient to constitute a cause of action."

2 (Code Civ. Proc.§ 430.lO(e).) Additionally, a complaint is subject to special demurrer when the

3 allegations are uncertain, ambiguous, and unintelligible. (Code Civ. Proc. § 430.lO(f).)

4 Though a court may adopt a liberal construction of complaint (Robertson v. Saadat

5 (2020) 48 Cal.App.5th 630), it should disregard contentions, deductions or conclusions of fact or

6 law. (Nealy v. County of Orange (2020) 54 Cal.App.5th 594.) A court need not accept

7 allegations containing legal conclusions, adjectival descriptions, or unsupported speculation.

8 (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.41h 953.) These

9 concepts are important here, as the FAC repeatedly alleges the legal conclusion that Groom

10 engaged in actions toward Plaintiff in his position and capacity as a rowing coach for, and during

11 the course and scope of his employment with, Mission Rowing, and in furtherance of Mission

12 Rowing's enterprise. Thus, the Court is not bound by Plaintiffs allegations that Groom' s

13 conduct was done within the course and scope of employment or that Mission Rowing ratified

14 his conduct.

15 B. The F AC Fails to Allege Sufficient Facts of Mission Rowing's Ratification

16 The FAC alleges that Groom' s actions were ratified by Mission Rowing and its founder,

17 Directors, and then-Executive Director Carol Nagy, who were aware of Groom's wrongful

18 conduct toward Plaintiff and other athletes but did nothing to protect Plaintiff from further harm.

19 (F AC, ,I13.) However, the claim ofratification is refuted by other facts contained in the original

20 Complaint and the F AC.

21 "The failure to discharge an agent or employee may be evidence of ratification. As

22 noted in McChristian v. Popkin (1946) 75 Cal.App.2d 249, 'If the employer, after knowledge of

23 or opportunity to learn of the agent's misconduct, continues the wrongdoer in service, the

24 employer may become an abettor and may make himself liable in punitive damages."' (Murillo

25 v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852.) For the purposes of this demurrer, it is

26 important to note that the original Complaint does not allege Mission Rowing ratified the alleged

27 sexual battery of August 13, 2021. It only alleges that Mission Rowing ratified past conduct of

28 Groom. Without ratification of Groom's alleged sexual battery, Mission Rowing cannot be

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8 EAST FIGUEROA STREET - STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
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1 liable for the intentional torts that are alleged to have been committed by Groom on August 13,

2 2021.

3 As the original Complaint and the FAC acknowledge, Mission Rowing took appropriate

4 steps when it was informed of the incident that took place late at night on August 13, 2021. The

5 F AC contains a conclusory allegation of ratification not contained in the original Complaint.

6 However, a plaintiff is bound by an allegation in an earlier version of the complaint even though

7 the allegations is omitted from later version. (Panterra GP, Inc. v. Sup. Ct. of Kern County

8 (2022) 74 Cal.App.5th 697.)

9 The steps taken by Mission Rowing, as alleged in the original Complaint but omitted in

10 the FAC, include the following:

11 • At 11 :04 p.m., Plaintiff texted a Mission assistant rowing coach. (Complaint, if 156; FAC,
ifl66). Early the next morning, August 14, 2021, the assistant coach texted "That is
12 bad ... That is in no way appropriate or normal." (FAC, if167.)
13
• The Mission Rowing assistant coach reported the incident to SafeSport. (Complaint,
14 ifl57; FAC, if167.)

15 • The assistant coach explained he was a mandated reporter and had to report the incident.
(Complaint if162; FAC, ,r172.)
16

17 • On Sunday, August 15, 2021, the Mission assistant coach reported the incident to Santa
Barbara County Child Welfare Services. CWS subsequently reported the incident to the
18 Sheriff's office, which contacted Plaintiffs parents and commenced an investigation.
(Complaint, ifl64; FAC, ifl74.)
19

20 • On August 16, 2021, Plaintiff reported the incident to a member of Mission's Board of
Directors. That director contacted Plaintiffs mother and Carol Nagy and reported what
21 was told to him. (Complaint, ,r,r166, 167; FAC, ,r,r176, 177.).

22
• A Mission coach, Nagy, and another member of Mission's executive board had an
23 emergency meeting on August 16, 2021, and Mr. Groom was reportedly removed from
his coaching duties with Mission thereafter. (Complaint, ,r170.)
24

25
Still, the FAC attempts to disregard all of Mission Rowing's swift actions and, instead,
26
argues ratification by alleging Ms. Nagy's "recommendation for and endorsement of Groom's
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continued employment by Mission. (Complaint, ifl 72; FAC, ,r182.) In her initial Complaint,
28
Plaintiff makes no allegations that Groom was allowed to continue with Mission Rowing. And
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8 EAST FIGUEROA STREET - STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
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1 both the Complaint and F AC contain numerous factual allegations. Yet, the F AC, for the first

2 time and without any factual basis, alleges that Mission Rowing allowed Groom to continue to

3 engage in various coaching activities, including activities involving minors, and to remain

4 employed with Mission Rowing. (FAC, 1186.) These allegations contradict the allegations in the

5 original Complaint, and they contain no facts, only "information and belief."

6 C. First Cause of Action (Assault & Battery)

7 The First Cause of Action for Assault and Battery against Mission Rowing fails to state

8 facts sufficient to constitute a cause of action. (Civ. Proc. §430.lO(e).) This cause of action is

9 alleged not only against Groom, but it is also alleged against Mission Rowing. The FAC alleges

10 that Mission Rowing and Conal Groom "committed acts which resulted in the imminent

11 apprehension of harmful and offensive contact" with Plaintiff. (FAC, 1191.) However, the FAC

12 fails to allege any facts that support Mission Rowing participated in the alleged assault and

13 battery of plaintiff. It merely contains the legal conclusion that Groom committed the assault

14 and battery within the course and scope of employment with Mission Rowing and to further

15 Mission's Rowing's enterprise of training athletes.

16 For Mission Rowing to be liable for Groom's alleged assault and battery, Groom's

17 actions must be determined to be within the course and scope of his employment with Mission

18 Rowing. Where the operable, overt, observable facts are indisputable (such as considered in a

19 demurrer), the question is one oflaw. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d

20 962,968, see Bingener v. City ofLos Angeles (2019) 44 Cal.App.5th 134, 140. Thus, the issue

21 of "course and scope of employment" may be properly decided at the demurrer stage.

22 Groom' s alleged assault and battery of Plaintiff, as alleged in the FAC, was not done

23 within the course and scope of his employment with Mission Rowing. "Historically, the scope o

24 employment doctrine has been limited to acts which are directly or indirectly in furtherance of

25 the employer's purpose, precluding vicarious liability for criminal acts not related to the

26 employer's enterprise." (Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379, 1382.) An act

27 is within the course and scope of employment only if:

28 "(a) it is of the kind the employee is employed to perform; (b) it occurs

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1 substantially within the authorized time and space limits; (c) it is actuated, at least

2 in part, by a purpose to serve the master, and (d) if force is intentionally used by

3 the servant against another, the use of force is not unexpectable by the master."

4 (Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379, 1382.)

5 Groom's actions, as alleged in the FAC, are not actions that he was employed to perform.

6 They include allegations of battery that took place late at night at his residence, which is not

7 where his training of Plaintiff took place. They were not actions that were done to serve his

8 employer, Mission Rowing. They were unexpected by Mission Rowing and were, in fact,

9 actions that Mission Rowing strictly prohibits.

10 D. Second Cause of Action (Sexual Battery, Civil Code §1708.5)

11 The Second Cause of Action for Sexual Battery against Mission Rowing fails to state

12 facts sufficient to constitute a cause of action (Civ. Proc. §430. lO(e)) and it is barred by statutory

13 and case law. This cause of action alleges that Mission Rowing "caused an offensive contact

14 with one or more intimate parts of Plaintiff's body, including Plaintiffs breast and buttocks."

15 (Complaint, ,185.) There are no allegations in the FAC that claim anyone at Mission Rowing,

16 other than Groom, sexually battered Plaintiff. Thus, liability must be based upon vicarious

17 liability of Mission Rowing. As set forth below, an employer is not liable for the sexual battery

18 of its employee because such action is outside the course and scope of employment.

19 Several decisions from California Courts have addressed whether an employee's sexual

20 misconduct directed toward a third party is within the scope of employment for respondeat

21 superior purposes. Those cases hold that, except where sexual misconduct by on-duty police

22 officers against members of the public is involved (e.g., Mary M, supra, 54 Cal.3d 202, 285

23 Cal.Rptr. 99, 814 P.2d 1341; White v. County of Orange (1985) 166 Cal.App.3d 566,212

24 Cal.Rptr. 493), the employer is not vicariously liable to the third party for such misconduct

25 (e.g., Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718, [church not liable for

26 repeated acts of sexual assault on minor by Sunday school teacher]; Rita M v. Roman Catholic

27 Archbishop (1986) 187 Cal.App.3d 1453, [Roman Catholic archbishop not liable for seduction o

28 parishioner by priests]; Alma W Oakland Unified School District (1981) 123 Cal.App.3d 133

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SANTA BARBARA, CA 93101-2762
1 [school district not liable for janitor's rape of student]).

2 "In those decisions, vicarious liability was rejected as a matter of law because it could not

3 be demonstrated that the various acts of sexual misconduct arose from the conduct of the

4 respective enterprises. In particular, the acts had been undertaken solely for the employees'

5 personal gratification and had no purpose connected to the employment. Moreover, the acts had

6 not been engendered by events or conditions relating to any employment duties or tasks; nor had

7 they been necessary to the employees' comfort, convenience, health, or welfare while at work."

8 (Farmers Ins. Group v. County ofSanta Clara (1995) 11 Cal.4th 992, 1006-1007.)

9 Moreover, an employer will not be held vicariously liable where it clearly appears that

10 neither directly nor indirectly could the employee have been serving his employer. (Farmers Ins.

11 Group v. County ofSanta Clara (1995) 11 Cal.4th 992, 1008.) A sexual tort will not be

12 considered engendered by the employment, for purposes of respondeat superior liability, unless

13 its motivating emotions were fairly attributable to work-related events or conditions. (Brown v.

14 USA Taekwondo (2019) 40 Cal. App. 5th 1077.)

15 Additional cases have held that an employer is not responsible for the sexual torts of an

16 employee. In one case, a school district was not liable for a janitor's rape of a student. (Alma W

17 v. Oakland Unified School District (1981) 123 Cal.App.3d.) A school district could not be held

18 liable for claims brought by a student who alleged a guidance counselor sexually assaulted her in

19 his office because, if the assault occurred, the counselor was acting outside the scope of his

20 employment. (Daza v. Los Angeles Community College District (2016) 247 Cal.App.41h 260,

21 269.) In another case, the court ruled that, as a matter oflaw, an employer could not be held

22 liable for its employee ' s alleged assault, battery, false imprisonment, and intentional infliction of

23 emotional distress. (KG. v. County ofRiverside (2003) 106 Cal.App.4th 1374, 1378.)

24 E. Third Cause of Action for Sexual Harassment (Civ. Code §51.9)

25 The Third Cause of Action for Sexual Harassment against Mission Rowing fails to state

26 facts sufficient to constitute a cause of action (Civ. Proc. §430.IO(e)). This cause of action

27 alleges that Groom, acting on behalf of an as an agent and servant of Mission Rowing, made

28 sexual advances, solicitations, and engaged in other verbal, visual, or physical conduct of a

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1 sexual nature or of a hostile nature towards Plaintiff based on her gender that were unwelcome

2 and pervasive or severe.

3 "As a matter of law, however, sexual harassment is not within the scope of employment

4 even where the harassing employee is the plaintiffs supervisor. A plaintiff therefore may not

5 hold an employer liable for sexual harassment under the doctrine ofrespondeat superior."

6 (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833,852 (citing Farmers Ins. Group v.

7 County ofSanta Clara (1995) 11 Cal.4th 992, 1011-1015.)

8 F. Fifth Cause of Action (Ralphs Civil Rights Act, Civ. Code §51.7)

9 The Fifth Cause of Action for Violation of Ralphs Civil Rights Act against Mission

10 Rowing fails to state facts sufficient to constitute a cause of action (Civ. Proc. §430.IO(e)). This

11 cause of action alleges that Groom, acting on behalf of and as an agent and servant of Mission

12 Rowing, subjected Plaintiff to violence and/or intimidation by threats of violence, against her

13 person on account of her sex.

14 There are no factual allegations in the FAC that Mission Rowing's alleged actions against

15 Plaintiff were committed against her on the account of her sex. The analysis set forth regarding

16 the first and second causes of action, in particular whether the employee's act was found to be

17 within the course and scope of employment, are equally applicable to this cause of action. That

18 is, for an employer to be liable for violation of Civil Code section 51. 7 based upon an

19 employee's conduct, the court must find that the employee's conduct was within the course and

20 scope of his employer. As set forth above, Groom's actions as alleged in the FAC were not

21 within the course and scope of his employment. (See Beliveau v. Caras (C.D. Cal. 1995) 873

22 F.Supp. 1393, 1401.) Thus, we request that this cause of action be dismissed.

23 G. Sixth Cause of Action (False Imprisonment)

24 The Sixth Cause of Action for False Imprisonment against Mission Rowing fails to state

25 facts sufficient to constitute a cause of action (Civ. Proc. §430.10(e)). This cause of action

26 alleges that Mission Rowing, through Groom, falsely imprisoned Plaintiff. However, just like

27 the other causes of action referenced above, allegations of Groom's false imprisonment will not

28 be imputed to his employer unless his actions were done within the course and scope of his

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1 employment. As set forth above, there is nothing about Groom's employment that comes close

2 to furthering Mission Rowing's purposes in running its nonprofit club.

3 H. Seventh Cause of Action (Intentional Infliction of Emotional Distress)

4 The Seventh Cause of Action for Intentional Infliction of Emotional Distress fails to state

5 facts sufficient to constitute a cause of action (Civ. Proc. §430.IO(e)) and it is barred by statutory

6 and case law. One court has held that an employer was not vicariously liable for plaintiffs

7 emotional distress resulting from threatening emails and Internet postings sent from its

8 employee's workplace computer. The emails and postings had nothing to do with the employee's

9 job duties and were plainly outside the scope of employment. (Delfino v. Agilent Technologies,

10 Inc. (2006) 145 Cal.App.4th 790, 813-814.)

11 ated: September 11, 2023 GRIFFITH & THORNBURGH, LLP

13 By:
Attorneys for Defendant, Mission Rowing
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8 EAST AGUEROA STREET - STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
SANTA BARBARA, CA 83101-2762
1 DECLARATION OF JOHN C. ECK

2 I, John C. Eck, declare as follows:

3 1. I am an attorney, licensed to practice before the courts of the State of California,

4 and am a partner in the law firm of Griffith & Thornburgh, LLP, counsel of record for Defendant

5 Mission Rowing. I have personal knowledge of the following facts and could and would

6 competently testify thereto if called upon to do so.

7 2. On July 12, 2023, I sent a letter to Plaintiffs attorney, Janean Acevedo Daniels

8 that set forth an explanation and legal authority relating to the issues I had with Plaintiff's

9 original Complaint. The letter included requests that Plaintiff dismiss several causes of action

10 against Mission Rowing.

11 3. Plaintiff filed a First Amended Complaint on or about August 3, 2023, and served

12 it that day via email. After August 3, 2023, Ms. Daniels and I spoke on the phone regarding

13 Mission Rowing file a demurrer to the First Amended Complaint. We were unable to reach an

14 agreement on further revisions to the First Amended Complaint; therefore, Mission Rowing is

15 filing this demurrer.

16 I declare under penalty of perjury, under the laws of the State of California, that the

17 foregoing is true and correct. Executed on September 11, 2023, at Santa Barbara, California.

19
John C. Eck, Declarant
20

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8 EAST FIGUEROA STREET- STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
SANTA BARBARA, CA 93101-2762
1 PROOF OF SERVICE

2 I am employed in the County of Santa Barbara, State of California. I am over the age of
18 and am not a party to the within action; my business address is 8 East Figueroa Street, Suite
3 300, Santa Barbara, California 93101-2762; my business email address is cordero@g-tlaw.com.

4 On September 11, 2023, I served the foregoing document described as DEFENDANT
MISSION ROWING'S NOTICE OF DEMURRER AND DEMURRER TO FIRST
5 AMENDED COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES IN
SUPPORT THEREOF; DECLARATION OF JOHN C. ECK RE MEET AND CONFER
6 on interested parties in this action as follows:
PLEASE SEE ATTACHED SERVICE LIST.
7

8 BY MAIL: by placing D the original ~ a true copy thereof enclosed in sealed envelopes
addressed as shown above or on the attached service list. I am "readily familiar" with the
9 firm's practice of collection and processing correspondence for mailing. Under that
practice it would be deposited with the U.S. postal service on that same day with postage
10 thereon fully prepaid at Santa Barbara, California, in the ordinary course of business. I
am aware that on motion of the party served, service is presumed invalid if postal
11 cancellation date or postage meter date is more than one day after date of deposit for
mailing in affidavit.
12
D BY OVERNIGHT COURIER: I enclosed the documents in an envelope or package
13 provided by an overnight delivery carrier and addressed to the persons at the addresses
listed above or on the attached service list. I placed the envelope or package for
14 collection and overnight delivery at an office or a regularly utilized drop box of the
overnight delivery carrier.
15
D BY FACSIMILE: I caused to be transmitted the document described herein via the fax
16 number listed above or on the attached service list. Upon completion of said facsimile
transmission, the transmitting machine issued a transmission report showing the
17 transmission was complete and without error.
18 D BY PERSONAL SERVICE: I delivered said document by hand to the addressee listed
above or on the attached service list.
19
BY E-MAIL (Pursuant to CCR 2.251 and CCP 1010.6): I caused the document to be sent
20 electronically to the person at the e-mail address listed above or on the attached service
list. I did not receive, within a reasonable time after the transmission any electronic
21 message or other indication that the transmission was unsuccessful.
22 D BY ELECTRONIC FILING SERVICE PROVIDER (EFSP) (Pursuant to CCR 2.251 and
CCP 1010.6): I am readily familiar with the firm's practice for filing electronically. I
23 caused e-service notification to be electronically sent through the certified, court
approved EFSP, to the address which was listed as the designated service contact on the
24 EFSP.
25 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
26
Executed on September I I, 2023, at S~
27

28
Kimberlie Cordero
GRIFFITH & THORNBURGH, LLP
ATTORNEYSANDCOUNSELORS - -- -- - - -- -- -- -- - -~ - -- -- - -- - -- -- - -- -
l EAST FIGUEROA STREET - STE 300 DEMURRER TO FIRST AMENDED COMPLAINT; DECLARATION OF JOHN C. ECK
SANTA BARBARA, CA 93101-2762
1 SERVICE LIST

2
3 Counsel for Plaintiff
Janean Acevedo Daniels
4
Law Office of Janean Acevedo Daniels
5 1160 Via de Rey
Goleta, CA 93117
6 E-mail: janean@jadanielslaw.com

7
Counsel for Defendant Conal Groom
8
Steven H. Schwartz
9 SCHWARTZ & JANZEN, LLP
12100 Wilshire Blvd., Suite #1125
10 Los Angeles, CA 90025
Email: sschwartz@sj-law.com
11
Luis Esparza
12
Esparza Law Group, P.C.
13 Post Office Box 343
Santa Barbara, CA 93102
14 E-mail: info@esparzalaw.com

16 Counsel for Defendant Carol Nagy
Rinat Klier-Erlich
17 Brian T. Smith
ZELMS ERLICH & MACK
18 20920 Warner Center Lane, Suite B
Woodland Hills, CA 91367
19 E-mail: rerlich@zelmerlich.com
20 bsmith@zelmserlicb.com

22
23

GRIFFITH & THORNBURGH, LLP
ATIORNEYSANDCOUNSELORS -

Case Info

Judge

Staffel, Timothy J Track Judge’s New Case

Case No.

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Document Filed Date

September 12, 2023

Case Filing Date

April 25, 2023

County

Parties

Daniels, Janean Attorney for the Plaintiff
Doe, Jane Plaintiff
Eck, John C Attorney for the Defendant
Groom, Conal Defendant
Mission Rowing Defendant
Nagy, Carol Defendant
Guy Gruppie Attorneys for Defendants
Laura Loeck Attorneys for Defendants
Luis Esparza Attorneys for Defendants
Steven Schwartz Attorneys for Defendants
Brian Smith Attorneys for Defendants
Michael DeNiro Attorney
Rinat Erlich Attorneys for Defendants
Thomas Matteson Attorneys for Defendants

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Motion,Ex Parte: Jane Doe vs Mission Rowing et al

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