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1 JANEAN ACEVEDO DANIELS, SBN 145707
Attorney at Law
2 Law Office of Janean Acevedo Daniels
1160 Via del Rey
3 Goleta, CA 93117
phone: (805) 284-4428 fax: (805) 456-2050
janean@jadanielslaw.com
4
Attorney for PLAINTIFF KATHERINE LORD-KRAUSE
5
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FOR THE COUNTY OF SANTA BARBARA
9
10 KATHERINE LORD-KRAUSE Case No. 23CV01793
11 PLAINTIFF, [Assigned for All Purposes to the Honorable
12 Timothy J. Staffel, Dept. SM3]
v.
13 PLAINTIFF’S OPPOSITION TO
MISSION ROWING, a California nonprofit
DEFENDANT NAGY’S DEMURRER
14 public benefit corporation; CONAL
GROOM, an individual; CAROL NAGY, an
HEARING DATE: October 11, 2023
15 individual; UNITED STATES ROWING
TIME: 8:30 a.m.
ASSOCIATION, a Pennsylvania nonprofit
16 corporation, and DOES 1-50, inclusive, DEPT.: SM3
17 Action Filed: April 25, 2023
DEFENDANTS. Trial Date: None Set
18
19
20
21
PLAINTIFF KATHERINE LORD-KRAUSE submits the following opposition to
22
DEFENDANT CAROL NAGY’S (“NAGY’S”) demurrer to PLAINTIFF’S First Amended
23
Complaint.
24 / / /
25 / / /
26 / / /
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 1 of 17
1
2
TABLE OF CONTENTS
3
4 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5 II. THE COURT MUST CONSTRUE THE FIRST AMENDED COMPLAINT
LIBERALLY AND OVERRULE THE DEMURRER IF IT APPEARS THAT
6 PLAINTIFF IS ENTITLED TO RELIEF UNDER ANY CIRCUMSTANCES . . 5
7
III. PLAINTIFF’S EIGHTH CAUSE OF ACTION AGAINST NAGY FOR
8 NEGLIGENT HIRING, TRAINING, SUPERVISION, AND RETENTION OF
GROOM AND NINTH CAUSE OF ACTION AGAINST NAGY FOR
9 NEGLIGENCE ARE ADEQUATELY STATED . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10 A. California Law Recognizes That Parties In Special Relationships with Minors
and Other Vulnerable Individuals Have a Duty to Protect Them From Foreseeable
11
Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
12
B. The FAC Adequately Alleges NAGY’S Negligent Hiring, Training, Supervision
13 and Retention of GROOM Based on NAGY’s Knowledge That GROOM Was Unfit
to Coach and Posed a Risk of Harm to Minor Athletes Under His Supervision and
14 Control Like Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
15
C. The FAC Adequately Alleges NAGY’S Negligence In Failing to Protect Plaintiff
16 From Foreseeable Harm by GROOM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
17
IV. PLAINTIFF’S TENTH CAUSE OF ACTION AGAINST NAGY FOR
18 DEFAMATION IS ADEQUATELY STATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
19
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
20
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23
24
25
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PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 2 of 17
TABLE OF AUTHORITIES
1
Cases:
2
Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3
Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040 . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4 Perdue v. Crocker Natl. Bank (1985) 38 Cal.3d 913, 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5 Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 . . . . . . . . . . . . . . 5
6 Dubins v. Regents of Univ. Of Cal. (1994) 25 Cal. App. 4th 77, 82 . . . . . . . . . . . . . . . . . . . . . . 5
Brown v. USA Taekwondo (2021) 11 Cal. 5th 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7
Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619 . . . . . . . . . . . . 6
8
Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 671 . . . . . . . . .6
9
Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836 . . . . . . . . . . . . . 7
10 Frederico v. Superior Court (1997) 59 Cal.App.4th 1207, 1215 . . . . . . . . . . . . . . . . . . . . . . . . . 7
11 C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865 . . . . . . . . . . . . . . . 7
12 M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519 . . . . . . . . . . 7
D.Z. v. Los Angeles Unified School Dist. (2019), 35 Cal. App. 5th 210, 229-231 . . . . . . . . . . . . . 7
13
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
14
Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 426-427 . . . . . . . . . . . . . . 13,14,15
15
Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16 Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17 Okun v. Superior Court (1981) 29 Cal. 3d 442, 451-452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18 Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal. App. 4th 1165, 1181 . . . . .14,15
19 Super Future Equities, Inc. v. Wells Fargo Bank Minnesota, N.A. . . . . . . . . . . . . . . . . . . . . . . . . 14
20
Statutes:
21
Code of Civil Procedure § 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
22 Other:
23 Restatement Second of Agency, § 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
24
25
26
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 3 of 17
I. INTRODUCTION
1
This action arises from arising from the physical, verbal, and emotional abuse, threats,
2
sexual harassment, assault, and battery to which PLAINTIFF was subjected by Defendant
3
MISSION ROWING employee, coach, and individual Defendant CONAL GROOM for more than
4 two years while PLAINTIFF was a minor athlete and member of the club, all of which culminated
5 in GROOM false imprisoning, assaulting, and sexually battering PLAINTIFF after ordering her to
6 come to his living quarters in the backyard of Defendant CAROL NAGY’S home in Santa Ynez,
California, on the night of August 13, 2021.
7
NAGY, a member of the Board of Directors and the Executive Director of MISSION
8
ROWING, founded the rowing club in Santa Barbara County in 2019 with GROOM as its head
9
coach after knowing and working closely with GROOM in the rowing community in Seattle,
10 Washington, for 13 years, including at their own private rowing club, the Seattle Rowing Center,
11 from 2010 to 2019.
12 Although NAGY, GROOM, and MISSION ROWING had special relationships with
PLAINTIFF as a minor athlete entrusted to their care and supervision that gave rise to a duty by
13
these defendants to act with due care towards PLAINTFF, and although NAGY had knowledge of
14
GROOM’s disposition and propensity for aggressive, dangerous, and abusive behavior towards
15
minor, female, and other athletes under his control and supervision, and was in a position to
16 protect PLAINTIFF from such harm, NAGY shirked and breached her duty to protect
17 PLAINTIFF. Instead, NAGY protected GROOM by hiring him as MISSION ROWING’s head
18 coach knowing he was unfit for the position and presented a danger to athletes he coached, by
19 failing to adequately train or supervise him, by retaining him as a MISSION ROWING employee
and coach, thereby allowing him unfettered access to, and power and control over, vulnerable
20
minor and female athletes like PLAINTIFF, and by failing to take effective action to address, and
21
continually making excuses for, his known erratic, inappropriate, and potentially harmful conduct.
22 These facts and others, which are alleged in detail in the FAC, are adequate to support
23 PLAINTIFF’s causes of action against NAGY individually for Negligent Supervision and
24 Retention, Negligence, Intentional Inflection of Emotional Distress, and Defamation, all of which
25 NAGY challenges in her demurrer. Because there are no valid bases for challenging these causes
of action, the demurrer should be overruled in its entirety.
26
///
27
///
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 4 of 17
II. THE COURT MUST CONSTRUE THE FIRST AMENDED COMPLAINT
1 LIBERALLY WITH A VIEW TOWARD SUBSTANTIAL JUSTICE AND
2 OVERRULE THE DEMURRER IF IT APPEARS THAT PLAINTIFF IS
ENTITLED TO RELIEF UNDER ANY OF THE CIRCUMSTANCES PLEADED
3
In ruling on NAGY’S demurrer, PLAINTIFF’S First Amended Complaint (“FAC”) must
4
be "liberally construed, with a view to substantial justice between the parties." Code Civ. Pro.
5
§452; see also Stevens v. Sup.Ct. (1999) 75 Cal.App.4th 594,601; Perez v. Golden Empire Transit
6 Dist. (2012) 209 Cal.App.4th 1228, 1238 (where allegations are subject to different reasonable
7 interpretations, court must draw "inferences favorable to the plaintiff, not the defendant"). The
8 court must accept as true all material facts properly pleaded, Blatty v. New York Times Co. (1986)
42 Cal. 3d 1033, 1040, and construe all facts in the light least favorable to defendant. Perdue v.
9
Crocker Natl. Bank (1985) 38 Cal. 3d 913, 922. It is error to sustain a demurrer if it appears that
10
the plaintiff is entitled to any relief under the circumstances pleaded. Dubins v. Regents of Univ.
11
Of Cal. (1994) 25 Cal. App. 4th 77, 82. Under these standards, NAGY’S demurrer should be
12 overruled in all respects.
13 III. PLAINTIFF’S EIGHTH CAUSE OF ACTION AGAINST NAGY FOR
NEGLIGENT HIRING, TRAINING, SUPERVISION, AND RETENTION OF
14 GROOM AND NINTH CAUSE OF ACTION AGAINST NAGY FOR
NEGLIGENCE ARE ADEQUATELY STATED
15
16 A. California Law Recognizes That Parties In Special Relationships with Minors and
Other Vulnerable Individuals Have a Duty to Protect Them From Foreseeable Harm
17
To establish a cause of action for negligence against Defendant NAGY, PLAINTIFF must
18
show that NAGY had a duty to use due care, that she breached that duty, and that the breach was
19
the proximate or legal cause of the resulting injury. See Brown v. USA Taekwondo (2021) 11 Cal.
20 5th 204, 213-214. The general rule governing duty is set forth in Civil Code § 1714, which
21 provides:
22 Everyone is responsible, not only for the result of his or her willful acts but also for an
injury occasioned to another by his or her want of ordinary care or skill in the management
23 of his or her property or person.
24 As the California Supreme Court confirmed in Brown v. USA Taekwondo, where it ruled
25 that the governing body for taekwondo in the United States had a duty to protect a female athlete
26 from her coach’s sexual abuse given the organization’s special relationship with the athlete and the
27 coach, and the foreseeability of such harm given widespread reports of sexual abuse by coaches in
a variety of sports:
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 5 of 17
[Section 1714] establishes the default rule that each person has a duty to exercise, in his or
1 her activities, reasonable care for the safety of others.’ Brown, 11 Cal. 5th at 214.
2
“A special relationship between the defendant and the victim is one that 'gives the
3
victim a right to expect' protection from the defendant, while a special relationship between the
4 defendant and the dangerous third party is one that 'entails an ability to control [the third party's]
5 conduct.'” Brown at 216, quoting Regents of University of California v. Superior Court (2018) 4
th
6 Cal.5 607, 619 (holding that colleges and universities have a duty to protect or warn their
students from foreseeable violence in classrooms or during curricular activities). Such special
7
relationships generally include “an aspect of dependency in which one party relies to some degree
8
on the other for protection” and the other party has “superior control over the means of
9
protection.” Regents at 620-621.
10 As the Court of Appeal explained in Doe v. Roman Catholic Archbishop of Los Angeles
11 (2021) 70 Cal.App.5th 657, 671:
12 ‘California courts have frequently recognized special relationships between children and
their adult caregivers that give rise to a duty to prevent harms caused by the intentional or
13 criminal conduct of third parties.’ . . . For example, courts have found special relationships
between a sport's governing body and minor athletes . . ., a school district (including its
14 employees) and the district's students . . .,a church camp and its campers . . . , a church and
minor members engaged in church-sponsored ‘field service’ . . . , a police department and
15
teenage ‘explorers’ participating in a department program . . . and a scout organization and
16 its scouts. . . . In cases involving minors, courts generally have recognized a special
relationship where adults and organizations ‘acted as 'quasi-parents' by assuming
17 responsibility for the safety of [minors] whose parents were not present.’ . . . (citations
omitted.) . . .
18
19 ‘The existence of such a special relationship puts the defendant in a unique position to
protect the plaintiff from injury. The law requires the defendant to use this position
20 accordingly.’ (Brown, supra, 11 Cal.5th at p. 216; see id. at pp. 220-221 [special
relationship ‘extends a right of recovery to individuals in relationships involving
21 dependence or control, and who by virtue of those relationships have reason to expect the
defendant's protection’]; Regents, supra, 4 Cal.5th at p. 621 ['[a] typical setting for the
22 recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and
23 dependent upon the defendant who, correspondingly, has some control over
the plaintiff's welfare'] .) Where there is a special relationship between the defendant and a
24 minor, the obligation to provide protection and assistance may include a duty to protect the
minor from third party abuse. (Brown, at p. 220; Hart, supra, 53 Cal.4th at p. 870.)
25
26 In her demurrer, NAGY does not deny that she had a duty to protect PLAINTIFF from
27 harm based on PLAINTIFF’s coach CONAL GROOM’s, MISSION ROWING’s (the organization
she founded and ran) with PLAINTIFF. NAGY instead asserts that PLAINTIFF has failed to
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 6 of 17
allege sufficient facts to support her causes of action against NAGY for negligent supervision and
1
general negligence. As explained below, NAGY’s contentions are erroneous, and PLAINTIFF
2
has alleged sufficient facts to support these claims. Accordingly, the demurrer should be
3
overruled as to these challenged causes of action.
4 B. The FAC Adequately Alleges NAGY’S Negligent Hiring, Training, Supervision
and Retention of GROOM Based on NAGY’s Knowledge That GROOM Was Unfit
5
to Coach and Posed a Risk of Harm to Minor Athletes Under His Supervision and
6 Control Like Plaintiff
7 Under well-established California law, an employer or individual may be liable to a third
8 person for negligently hiring an incompetent or unfit employee. See Evan F. v. Hughson United
Methodist Church (1992) 8 Cal.App.4th 828, 836. Such liability attaches when the defendant
9
“knows or should know, that the employee, because of past behaviors and other factors, is unfit for
10
the specific tasks to be performed.” Frederico v. Superior Court (1997) 59 Cal.App.4th 1207,
11
1215.
12 California law on negligent hiring, training, supervision and retention claims follows
13 the rule and comment set forth in the Restatement Second of Agency, § 213, which provides
14 in pertinent part:
The principal may be negligent because he has reason to know that the servant or
15
other agent, because of his qualities, is likely to harm others in view of the work
16 or instrumentalities entrusted to him . . . [P] An agent, although otherwise
competent, may be incompetent because of his reckless or vicious disposition, and
17 if a principal, without exercising due care in selection, employs a vicious person
to do an act which necessarily brings him into contact with others while in the
18 performance of a duty, he is subject to liability for harm caused by the vicious
19 propensity. . . .” Id. at 842.
20 A negligent supervision claim depends, in part, on a showing that the risk of harm was
21 reasonably foreseeable. C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861,
865. “Foreseeability is determined in light of all the circumstances and does not require prior
22
identical events or injuries . . . ‘It is not necessary to prove that the very injury which occurred
23
must have been foreseeable” to establish a negligent supervision claim. M.W. v. Panama Buena
24 Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519. See also D.Z. v. Los Angeles Unified
25 School Dist. (2019), 35 Cal. App. 5th 210, 229-231.
26 In this case, PLAINTIFF alleges the following facts establishing that NAGY had
27 knowledge of GROOM’s disposition and propensity for aggressive, dangerous, and abusive
behavior towards minor, female, and other athletes under his control and supervision:
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 7 of 17
From 2010 to 2019, while GROOM served as head coach of rowing club SRC and NAGY
1
served as the club’s Director and GROOM’s supervisor, NAGY protected GROOM and
2
failed to take action to address coaching misconduct that he reportedly repeatedly engaged
3
in towards the athletes entrusted to his supervision, of which NAGY was aware. Young
4 athletes and their parents were subjected to, witnessed, or otherwise became aware of
5 wrongful, offensive, and at times dangerous actions by GROOM towards his athletes and
6 complained to GROOM and NAGY. NAGY was aware of GROOM’s wrongful,
offensive, and dangerous actions, and of GROOM’s abuse of alcohol, which adversely
7
affected his behavior towards athletes he coached. [FAC, p. 7, ¶¶ 26 & 28.]
8
NAGY was aware of and received complaints regarding GROOM’s reckless disregard of
9
his rowers’ safety and well-being in connection with the Highway 520 Bridge incident on
10 Lake Washington in Seattle in November 2011, and GROOM’s belligerent and abusive
11 tirade towards a male high school rower who voiced concerns about the incident. [FAC, p.
12 8, ¶¶ 29-33.]
NAGY was aware of the December 2014 Complaint against GROOM and SRC with
13
USROWING regarding the harm GROOM was causing to athletes he was coaching,
14
including reportedly initiating a sexual relationship with a female junior athlete, exhibiting
15
rageful behavior towards and creating an abusive environment for athletes, physically
16 threatening, assaulting, screaming, swearing, and using offensive and abusive language
17 towards athletes, including referring to female athletes with the “C word,” engaging in
18 inappropriate touching and sexually suggestive conversations with athletes, and grooming
19 young female rowers for potential future sexual attention and abuse. [FAC, p. 9, ¶¶ 34 – p.
12, ¶ 41; p. 15, ¶ 51.]
20
Numerous athletes, family members, and others reported to NAGY prior to GROOM’s
21
August 13, 2021 assault on PLAINTIFF various inappropriate, abusive, dangerous, and at
22 times violent actions by GROOM towards rowers he controlled, supervised, and/or came into
23 contact with, including belligerent altercations between GROOM and such athletes. [FAC, p.
24 14, ¶¶ 46 – 47.]
25 Prior to hiring GROOM to be head coach of MISSION ROWING, NAGY was aware of a
letter from Pocock Rowing Center to USROWING regarding GROOM’s harmful and
26
offensive actions towards, and mistreatment of, athletes he coached, and was aware of those
27
wrongful acts by GROOM, which she had witnessed, had been reported to her, and/or were
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 8 of 17
otherwise known to her. Following submission of the December 2014 Complaint against
1
GROOM with USROWING by Pocock coach Margaret Christopher, NAGY sent threatening
2
emails to Pocock demanding that the club fire Christopher for reporting GROOM’s harmful
3
actions towards his athletes. NAGY later entered Pocock’s offices, angrily demanded that the
4 club fire Christopher, and threatened a club official by slamming her hands on the official’s
5 desk and stating that Christopher’s complaint against GROOM was “ruining [her] business”
6 and that “this needs to stop or I will sue you.” [FAC, p. 14, ¶¶ 47 – p. 15, ¶ 50.]
NAGY failed to take any actions to address GROOM’s known abusive and dangerous
7
actions towards the athletes he coached, or to protect those athletes from further harm by
8
GROOM. Instead, NAGY routinely defended GROOM and his inappropriate behavior to
9
those who questioned or complained about GROOM, was complicit in his wrongful actions,
10 and sanctioned his wrongful actions by allowing them to continue unabated throughout the
11 time that NAGY worked with GROOM at SRC, and later, at MISSION ROWING. [FAC, p.
12 15, ¶ 51 – p. 16, ¶ 53.]
During the summer of 2020, PLAINTIFF’s mother reported to NAGY that PLAINTIFF
13
had complained that GROOM had been arguing with her and other athletes and drinking
14
alcohol excessively, exacerbating his erratic and volatile behavior towards them. NAGY
15
responded by stating that GROOM could be “moody sometimes” and that it was “usually a
16 sign of stress,” and told PLAINTIFF’S mother to call GROOM to “check in,” but did not
17 indicate she would take any action to address PLAINTIFF’S mother’s and PLAINTIFF’s
18 concerns about GROOM’s offensive and potentially dangerous actions. [FAC, p.. 26, ¶¶ 97-
19 98.]
After GROOM drank excessively and engaged in abusive behavior towards PLAINTIFF
20
during the June 2021 Junior Nationals, PLAINTIFF’S mother again complained to NAGY
21
about GROOM’S unsafe actions. NAGY admitted that GROOM had a “temper” but again
22 brushed off PLAINTIFF’S mother’s concerns. NAGY took no action to address GROOM’s
23 excessive drinking or other unsafe actions towards the athletes under his supervision,
24 notwithstanding that she had been advised about and was well-aware of his harmful and
25 dangerous behaviors. [FAC, p. 33, ¶ 124 – p. 34, ¶ 130.]
These facts are sufficient to state a cause of action against NAGY for negligent supervision
26
of GROOM because they show that a reasonable person would realize that GROOM posed a risk
27
of harm and danger to athletes he coached, even if he had not engaged in known acts of sexual
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 9 of 17
abuse. As the FAC makes clear, GROOM’s sexual battery of PLAINTIFF on August 13, 2021,
1
was only one component of the harm and injury that GROOM perpetrated upon PLAINTIFF
2
during the time he coached her. But for NAGY’s negligent hiring, training, supervision, and
3
retention of GROOM as a rowing coach, GROOM would not have had the access to PLAINTIFF
4 or the opportunity to harm her in the various ways alleged in the FAC, and PLAINTIFF would not
5 have been injured by him. PLAINTIFF has adequately pleaded facts supporting this cause of
6 action against NAGY.
C. The FAC Adequately Alleges NAGY’S Negligence In Failing to Protect Plaintiff
7
From Foreseeable Harm by GROOM
8
In Brown, the California Supreme Court reversed summary judgment on a female athlete’s
9
negligence claim against USA Taekwondo, the sport’s national governing body, arising from her
10
coach’s sexual abuse and affirmed the organization’s duty to plaintiff based on the current general
11
foreseeability of sexual abuse of athletes by coaches, although the particular risk of harm by the
12 abused athlete’s coach was not known. Similarly, in M. W. v. Panama Buena Vista Union School
13 Dist., the Court of Appeal ruled that a school district owed a duty of care to a student who was
14 sexually assaulted by another student in a school bathroom and that the risk of such an assault was
foreseeable based on the district’s lack of supervision of students in the early morning when the
15
assault occurred in a known trouble spot, the unique vulnerabilities of special education students
16
like the victim, and the perpetrator’s prior record of discipline, even though he had not committed
17
any prior sexual assaults.
18 Taking an even broader view with respect to duty and foreseeability, the court in Doe v.
19 Roman Catholic Archbishop of Los Angeles reversed summary judgment for defendant Catholic
20 archdiocese on a negligence claim by a plaintiff who had been sexual abused by a priest when he
21 attended catechism classes, and held that the evidence offered by plaintiff that the archdiocese was
aware that numerous priests had been accused of sexually abusing minors in the archdiocese and
22
around the country prior to the abuse in question made it reasonably foreseeable that minors
23
attending such classes might be sexually molested by a priest, even though the archdiocese did not
24 have knowledge of prior sexual misconduct by this particular perpetrator. See also Evan F. 8
25 Cal.App.4th 828, 842-843 (holding that although defendant church had no actual knowledge of the
26 deviant sexual history of the pastor who had sexually abused the 13-year-old plaintiff parishioner,
27 there were disputed issues of fact regarding the church’s knowledge of the pastor’s general
unfitness for hire that precluded summary judgment for defendant).
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 10 of 17
As described above, the FAC provides a detailed account of NAGY’s knowledge of
1
violent, abusive, and dangerous actions by GROOM toward athletes he coached before NAGY
2
hired GROOM as head coach of MISSION ROWING, and of additional offensive and unsafe
3
behaviors by GROOM thereafter, and throughout the time he coached PLAINTIFF. Such known
4 misconduct established GROOM’s dangerous actions and propensities towards athletes under his
5 control, and made it foreseeable that one or more of those athletes, especially a minor female like
6 PLAINTIFF, would be physically and/or emotionally harmed and injured by him. Accordingly,
the nature of GROOM’s employment and role as PLAINTIFF’s coach, and the power and
7
authority that GROOM had over PLAINTIFF given his role as her coach and mentor (which
8
GROOM fostered and shored up by engaging in the grooming activities described in the FAC)
9
created a foreseeable risk that GROOM would have the access, the ability, and the opportunity to,
10 and would, harm PLAINTIFF in the various ways alleged in the FAC.
11 The fact that GROOM committed some of his most egregious tortious acts towards
12 PLAINTIFF at his living quarters away from designated training areas, that fact does not defeat
PLAINTIFF’S allegations that such actions were foreseeable by NAGY, given that GROOM
13
repeatedly used his authority as PLAINTIFF’s coach to direct her to come to his home on
14
NAGY’s property and spend time alone with him there as part of his coaching and mentoring
15
relationship with PLAINTIFF.
16 Finally, the FAC alleges that GROOM engaged in numerous acts of assault and battery
17 towards her prior to the August 13, 2021 incident at GROOM’s home, including while he was
18 engaged in coaching duties on behalf of MISSION ROWING at various training and competition
19 locations, often while other MISSION ROWING athletes were present.
These allegations are more than sufficient to state a cause of action against NAGY for her
20
individual negligence in failing to protect PLAINTIFF from GROOM’s abusive actions, which
21
continued unabated during the time GROOM coached PLAINTIFF at MISSION ROWING, and
22 hich culminated in, but were not limited to, his false imprisonment and sexual battery of
23 PLAINTIFF in the living quarters that NAGY provided for GROOM to reside in in the backyard
24 of her home.1
25
1
NAGY’s assertion that a demurrer should be granted as to the above causes of action because as Executive Director
26 of GROOM’s employer, MISSION ROWING, she is not vicariously liable for GROOM’S wrongful acts (NAGY
Memo, p. 3, ln. 22–p. 4, ln. 3), is misplaced. As explained above, PLAINTIFF is not asserting that NAGY is
27 vicariously liable for GROOM’S injurious actions, but rather, that NAGY is directly liable based on her own
individual negligent acts as described in the FAC.
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 11 of 17
III. PLAINTIFF’S SEVENTH CAUSE OF ACTION AGAINST NAGY FOR
1 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS ADEQUATELY
2 STATED
3 The elements of the tort of intentional infliction of emotional distress (“IIED”) are: (1)
4 extreme and outrageous conduct by the defendant with the intention of causing, or reckless
disregard of the probability of causing, emotional distress; (2) plaintiff suffering severe or
5
extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the
6
defendant's outrageous conduct. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903. To be
7
outrageous, conduct must be so extreme as to exceed all bounds of that usually tolerated in a
8 civilized community. Id. The defendant must have engaged in “’conduct intended to inflict injury
9 or engaged in with the realization that injury will result. Id. (emphasis added). The conduct must
10 also “be directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is
aware.” Id.
11
The FAC adequate states a cause of action claim against NAGY for IIED based on each of
12
these elements of the claim, based on a “reckless disregard” theory of liability. Specially, the FAC
13
alleges that:
14 (1) NAGY committed various acts of extreme and outrageous conduct against PLAINTIFF by
15 hiring CONAL GROOM as the head coach of MISSION ROWING and allowing GROOM
16 to remain employed with MISSION ROWING notwithstanding NAGY’s knowledge of
17 numerous complaints of abusive, violent, and dangerous behavior by GROOM while
coaching, supervising, and engaging with athletes under his control and/or supervision; by
18
knowingly permitting GROOM to have unfettered access to and undue influence over
19
PLAINTIFF as her coach and permitting GROOM to engage in predatory grooming by
20 spending one-on-one time with PLAINTIFF at NAGY’S property (where NAGY provided
21 GROOM with living quarters); and by knowingly allowing and taking no action to address
22 GROOM’s excessive drinking and alcohol abuse, and/or GROOM’s repeatedly engaging
23 in angry outbursts, temper tantrums, and a variety of inappropriate actions and behaviors,
while coaching, supervising, and engaging with PLAINTIFF and other MISSION
24
ROWING athletes, all with reckless disregard of the probability of causing PLAINTIFF
25
emotional distress [FAC, pp. 3-4, ¶¶10–13; p. 18, ¶62, p. 26, ¶98, p. 34, ¶130, p. 40, ¶163,
26
pp. 42-45, ¶¶176-189, p. 55-56, ¶¶ 236–241];
27 (2) PLAINTIFF suffered severe emotional distress [FAC, p. 55, ¶ 236–p. 56, ¶ 239]; and
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 12 of 17
(3) PLAINTIFF’s emotional distress was actually and proximately caused by NAGY’s
1
outrageous conduct. [Id.]
2
These allegations are sufficient to state a cause of action against NAGY for IIED.
3
IV. PLAINTIFF’S TENTH CAUSE OF ACTION AGAINST NAGY FOR
4 DEFAMATION IS ADEQUATELY STATED
5 NAGY demurs to PLAINTIFF’S defamation claim based on the assertion that the
6 statements in NAGY’S August 16, 2021 email to MISSION ROWING director and coach Tom
Kellett and rowing coach Richard Hull, a copy of which is attached as Exhibit “A” to the FAC, are
7
statements of opinion rather than fact. (NAGY Memorandum, p. 9, lns. 6–22.) NAGY’s
8
contention is incorrect and does not support her demurrer as to this cause of action.
9
As the California and United States Supreme Courts have recognized, not all statements
10 that appear to be opinions are immunized from liability for defamation. See Bently Reserve LP v.
11 Papaliolios (2013) 218 Cal.App.4th 418, 426-427, quoting Summit Bank v. Rogers (2012) 206
12 Cal.App.4th 669, 696 and Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 17.
‘In Milkovich . . . the United States Supreme Court moved away from the notion that
13
defamatory statements categorized as opinion as opposed to fact enjoy wholesale
14 protection under the First Amendment. Significantly, the court recognized that
‘expressions of “opinion” may often imply an assertion of objective fact.’ . . .‘If a speaker
15 says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to
the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he
16 bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of
17 them is erroneous, the statement may still imply a false assertion of fact. Simply couching
such statements in terms of opinion does not dispel these implications’ . . . cf. Weller v.
18 American Broadcasting Companies., Inc. (1991) 232 Cal.App.3d 991, 1004 [283 Cal.Rptr.
644] (Weller) [“we reject the notion that merely couching an assertion of a defamatory fact
19 in cautionary language such as ‘apparently’ or ‘some sources say’ or even putting it in the
form of a question, necessarily defuses the impression that the speaker is communicating
20 an actual fact”].)
21
Thus a false statement of fact, whether expressly stated or implied from an expression of
22 opinion, is actionable. . . . The key is not parsing whether a published statement is fact or
opinion, but ‘whether a reasonable fact finder could conclude the published statement
23 declares or implies a provably false assertion of fact.’ For example, “an opinion based on
implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion”
24 “
25 To decide whether a statement expresses or implies a provably false assertion of fact,
courts use a totality of the circumstances test. . . . “[A] court must put itself in the place of
26 an average reader and determine the natural and probable effect of the statement … .”
Bently, 218 Cal.App.4th at 427.
27
See also Okun v. Superior Court (1981) 29 Cal.3d 442, 451-452 (statement of opinion may be
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 13 of 17
actionable if it implies the allegation of undisclosed defamatory facts as the basis for the opinion).
1
As the court of appeal explained in Ringler Associates Inc. v. Maryland Casualty Co.
2
(2000) 80 Cal.App.4th 1165, 1181, “there is no wholesale defamation exemption for anything that
3
might be labeled an opinion. If a statement of opinion implies a knowledge of facts which may
4 lead to a defamatory conclusion, the implied facts must themselves be true.” If the publisher of
5 the opinion states facts upon which they base the opinion which are incorrect or incomplete, or
6 their assessment of them is erroneous, the statement of opinion may still imply a false assertion of
fact. Id. Simply couching such statements in terms of opinion does not dispel these implications,
7
and such statements may be actionable. Id. Put another way, “It is not the literal truth or falsity of
8
each word or detail used in a statement which determines whether or not it is defamatory; rather,
9
the determinative question is whether the ‘gist or sting’ of the statement is true or false, benign or
10 defamatory, in substance. Ringler at 1181-1182 (emphasis in original).
11 In Bently, a plaintiff apartment building owner sued the defendant for defamation based on
12 the negative review of the building the defendant had posted on the Internet. The court of appeal
concluded that the defendant's review, which used some hyperbole and name-calling but also
13
included purported facts, was reasonably susceptible of an interpretation which implied a provably
14
false assertion of fact, and therefore properly subject to a defamation claim.
15
The court in Bentley further noted that the defendant attempted through his statements “to
16 win credibility with his audience” as to the factual assertions he was making, and that such
17 assurances “suggest facts are being communicated, not opinions. (See Elder, Defamation: A
18 Lawyer's Guide (2012) Fact Versus Opinion, § 8:2 [representation that speaker has “private,
19 firsthand knowledge” relevant to the fact/opinion distinction]; see also Super Future Equities, Inc.
v. Wells Fargo Bank Minnesota, N.A. (N.D.Tex. 2008) 553 F.Supp.2d 680, 689 [where defendant
20
“claims to verify the accuracy of the information he posts” his online “statements are not protected
21
opinions”].) Bently, 218 Cal.App.4th at 428-429.
22 Here, NAGY makes the following factual statements in her August 16, 2021 email that
23 PLAINTIF alleges are false:
24 “I warned [GROOM] back in the spring about the manipulative behavior [that PLAINTIFF
was engaging in] I was seeing and very uncomfortable with”;
25
“late April/early May Kat was sent workouts to do for Selection Camp .... for weeks on
26
end [PLAINTIFF] would come to practice and flat out refuse to do the workout or get 5
27 minutes in, give up, start crying and blame him because it was to [sic] hard”;
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 14 of 17
if a kid [like PLAINTIFF] is going to selection camp shouldn't they be able to do workouts
1
without a daily mental breakdown?”
2
As in Bentley, the fact that NAGY uses hyperbole and expresses opinions along with these
3
assertions of fact, and even asserts certain facts in the form of a question (i.e., shouldn't
4 PLAINTIFF, who was training for selection camp, “be able to do workouts without a daily mental
5 breakdown?”, thereby indirectly stating that PLAINTIF could NOT do the workouts without “a
6 daily mental breakdown”), does not defeat PLAINTIFF’S defamation claim as to the facts
expressed. As alleged in the FAC, the “gist or sting” of each of these statements about PLAINTIF
7
is false in substance, thereby making the actionably defamatory. See Ringler at 1181-1182.
8
Moreover, like the defendant in Bentley, NAGY represents throughout the email that she has
9
private, firsthand knowledge relevant to the facts described therein by repeatedly mentioning her
10 intimate conversations with GROOM and their longstanding close relationship, stating in pertinent
11 part:
12 “Just finished a long and productive conversation with Conal.”
“We talked about the excessive drinking- I pointed out that during the lock down when
13
he'd have a couple of beers at night during/after dinner it was never a problem .... I think it
14 was when he started drinking Jameson in addition to the beer that the alcohol started
clouding his judgement. We left that part of the conversation by him handing me his bottle
15 of Jameson, and telling me if he brought another bottle of hard liquor in the house to take it
away from him ..... and he'll start thinking of strategies to limit himself to one or two beers
16 a night. I've seen him go months on end without touching a drop of alcohol..... think he can
17 get there, just needs some help-“
18 “We talked about what an easy target he was and has been as long as I've known him.
Sadly part of that is why he is such a good coach, it is also how he gets himself in trouble
19 because he does not maintain enough mental/emotional separation between himself and his
athletes. . . . He went to extraordinary lengths to build her confidence ..... I actually talked
20 to [PLAINTIFF’S mother] Julie about it at the time because I could see the toll he was
allowing it to take on himself mentally. I told him my two cents in a situation like
21 that....tell the kid to suck it up and do the workouts or go find something else to do that
summer.”
22
“So many people have given up on him in this life .... I think he never wants an athlete to
23 feel like he's given up on them ... to a fault.
He understands intellectually, just don't know if he is capable of walking away when he
24 needs to.”
25 “I asked him what he thinks is the best path forward so he stops shooting himself in the
foot.”
26
NAGY’S affirmations of her inside knowledge of the facts asserted in her email strongly suggest
27
that she is communicating facts, not opinions. Bentley at 428-429. Accordingly, PLAINTIFF’S
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 15 of 17
allegations are more than sufficient to state a cause of action against NAGY for defamation based
1
on the false statements in NAGY’S August 16, 2021 email. 2
2
V. CONCLUSION
3
For all these reasons, PLAINTIFF respectfully requests that the Court overrule NAGY’S
4 demurrer in its entirety. If the Court is inclined to grant the demurrer as to one or more challenged
5 causes of action, PLAINTIFF respectfully requests that the Court provide PLAINTIFF with leave
6 to amend the FAC to specifically address any deficiencies the Court may find.
7
Dated: September 28, 2023 /s/ Janean Acevedo Daniels_____
8 Janean Acevedo Daniels
Attorney for PLAINTIFF KATHERINE
9 LORD-KRAUSE
10
11
12
13
14
15
16
17
18
19
20
21
22
2
NAGY also demurs to the seventh, eighth, ninth, tenth causes of action on the grounds that they are
23
“uncertain, ambiguous, and unintelligible under Code Civ. Proc. § 430.10(f). NAGY’s counsel did not meet and
confer with Plaintiff’s counsel regarding any such alleged deficiencies in the FAC as required by Code of Civil
24 Procedure § 430.41(a) (see Declaration of Janean Acevedo Daniels, p. 1, ¶¶ 2-3 & Exhibit “A” thereto), nor did
NAGY address these purported deficiencies in her Memorandum filed in support of the demurrer. Moreover, a
25 demurrer for uncertainty should only be sustained when a complaint is so bad that the defendant cannot reasonably
respond; i.e., they cannot reasonably determine what issues must be admitted or denied, or what counts or claims are
26 directed against them. See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616. PLAINTIFF’S detailed
complaint provides NAGY with sufficient information regarding her factual allegations that NAGY may reasonably
27 respond.
28
PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER
Page 16 of 17
EXHIBIT “A” TO DECLARATION OF JANEAN
ACEVEDO DANIELS
ZELMS, ERLICH, & MACK
Brian T. Smith
Direct: (213) 712-8075
bsmith@zelmserlich.com
August 22, 2023
VIA E-MAIL
janean@jadanielslaw.com
Janean Acevedo Daniels, Esq.
1160 Via Del Rey
Goleta, CA 93117
Re: Katherine Lord Krause v. Mission Rowing, et al,
Meet and Confer re First Amended Complaint
Dear Ms. Acevedo Daniels:
As you know, this office represents Carol Nagy in this matter. This letter serves to initiate the
meet and confer process with you regarding the allegations of plaintiff Katherine Lord Krause’s first
amended complaint (“FAC”). For the reasons set forth herein, Ms. Nagy intends to demurrer to all
causes of action against her in the FAC and move to strike portions of this pleading.
The FAC alleges that Conal Groom engaged in inappropriate physical contact with plaintiff
on August 13, 2021 when she visited his living quarters in the backyard of Ms. Nagy’s property and
that this constitutes assault and battery upon her. Plaintiff contends that Groom did so in the course
and scope of employment with Mission Rowing, where he was a rowing coach and plaintiff was a
member of the rowing team. The FAC asserts that Carol Nagy was a “Director”, “Executive
Director” and a “managing agent” of Mission Rowing and based thereon, seeks to impose liability on
Ms. Nagy for the alleged torts of Mr. Groom as an agent of Mission Rowing. [FAC ¶98] The FAC
does so by asserting that Nagy, as the Director of Mission Rowing, was aware of offensive and
potentially dangerous acts of Groom, including excessive drinking of alcohol, anger issues, and
improper comments, of a sexual nature, to minor females involved in rowing programs. [FAC ¶23,
28, 33, 46 & 50]
EXHIBIT A
_______________________________________________________________________________________
20920 Warner Center Ln., #B, Woodland Hills, CA 91367 | P (213) 712-8075 | zelmserlich.com 1
The FAC contends that Carol Nagy acted with knowing and reckless disregard for, and lack
of due care for, plaintiff’s safety; failed to take action to address or stop Mr. Groom’s wrongful
conduct; and allowed Mr. Groom to continue to coach plaintiff and other athletes at Mission Rowing,
thereby ratifying his wrongful conduct. [FAC ¶18, 52, & 62] Unfortunately, the alleged sexual assault
of plaintiff is attributed to Ms. Nagy, since she was in a management position at Mission Rowing, a
California non-profit corporation, rather than to
Preview
1 JANEAN ACEVEDO DANIELS, SBN 145707 Attorney at Law 2 Law Office of Janean Acevedo Daniels 1160 Via del Rey 3 Goleta, CA 93117 phone: (805) 284-4428 fax: (805) 456-2050 janean@jadanielslaw.com 4 Attorney for PLAINTIFF KATHERINE LORD-KRAUSE 5 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SANTA BARBARA 9 10 KATHERINE LORD-KRAUSE Case No. 23CV01793 11 PLAINTIFF, [Assigned for All Purposes to the Honorable 12 Timothy J. Staffel, Dept. SM3] v. 13 PLAINTIFF’S OPPOSITION TO MISSION ROWING, a California nonprofit DEFENDANT NAGY’S DEMURRER 14 public benefit corporation; CONAL GROOM, an individual; CAROL NAGY, an HEARING DATE: October 11, 2023 15 individual; UNITED STATES ROWING TIME: 8:30 a.m. ASSOCIATION, a Pennsylvania nonprofit 16 corporation, and DOES 1-50, inclusive, DEPT.: SM3 17 Action Filed: April 25, 2023 DEFENDANTS. Trial Date: None Set 18 19 20 21 PLAINTIFF KATHERINE LORD-KRAUSE submits the following opposition to 22 DEFENDANT CAROL NAGY’S (“NAGY’S”) demurrer to PLAINTIFF’S First Amended 23 Complaint. 24 / / / 25 / / / 26 / / / 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 1 of 17 1 2 TABLE OF CONTENTS 3 4 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 II. THE COURT MUST CONSTRUE THE FIRST AMENDED COMPLAINT LIBERALLY AND OVERRULE THE DEMURRER IF IT APPEARS THAT 6 PLAINTIFF IS ENTITLED TO RELIEF UNDER ANY CIRCUMSTANCES . . 5 7 III. PLAINTIFF’S EIGHTH CAUSE OF ACTION AGAINST NAGY FOR 8 NEGLIGENT HIRING, TRAINING, SUPERVISION, AND RETENTION OF GROOM AND NINTH CAUSE OF ACTION AGAINST NAGY FOR 9 NEGLIGENCE ARE ADEQUATELY STATED . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 10 A. California Law Recognizes That Parties In Special Relationships with Minors and Other Vulnerable Individuals Have a Duty to Protect Them From Foreseeable 11 Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 12 B. The FAC Adequately Alleges NAGY’S Negligent Hiring, Training, Supervision 13 and Retention of GROOM Based on NAGY’s Knowledge That GROOM Was Unfit to Coach and Posed a Risk of Harm to Minor Athletes Under His Supervision and 14 Control Like Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 15 C. The FAC Adequately Alleges NAGY’S Negligence In Failing to Protect Plaintiff 16 From Foreseeable Harm by GROOM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 17 IV. PLAINTIFF’S TENTH CAUSE OF ACTION AGAINST NAGY FOR 18 DEFAMATION IS ADEQUATELY STATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 19 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 20 21 22 23 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 2 of 17 TABLE OF AUTHORITIES 1 Cases: 2 Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3 Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040 . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4 Perdue v. Crocker Natl. Bank (1985) 38 Cal.3d 913, 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 5 Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 . . . . . . . . . . . . . . 5 6 Dubins v. Regents of Univ. Of Cal. (1994) 25 Cal. App. 4th 77, 82 . . . . . . . . . . . . . . . . . . . . . . 5 Brown v. USA Taekwondo (2021) 11 Cal. 5th 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7 Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619 . . . . . . . . . . . . 6 8 Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 671 . . . . . . . . .6 9 Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836 . . . . . . . . . . . . . 7 10 Frederico v. Superior Court (1997) 59 Cal.App.4th 1207, 1215 . . . . . . . . . . . . . . . . . . . . . . . . . 7 11 C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865 . . . . . . . . . . . . . . . 7 12 M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519 . . . . . . . . . . 7 D.Z. v. Los Angeles Unified School Dist. (2019), 35 Cal. App. 5th 210, 229-231 . . . . . . . . . . . . . 7 13 Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 14 Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 426-427 . . . . . . . . . . . . . . 13,14,15 15 Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 16 Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 17 Okun v. Superior Court (1981) 29 Cal. 3d 442, 451-452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 18 Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal. App. 4th 1165, 1181 . . . . .14,15 19 Super Future Equities, Inc. v. Wells Fargo Bank Minnesota, N.A. . . . . . . . . . . . . . . . . . . . . . . . . 14 20 Statutes: 21 Code of Civil Procedure § 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 22 Other: 23 Restatement Second of Agency, § 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 3 of 17 I. INTRODUCTION 1 This action arises from arising from the physical, verbal, and emotional abuse, threats, 2 sexual harassment, assault, and battery to which PLAINTIFF was subjected by Defendant 3 MISSION ROWING employee, coach, and individual Defendant CONAL GROOM for more than 4 two years while PLAINTIFF was a minor athlete and member of the club, all of which culminated 5 in GROOM false imprisoning, assaulting, and sexually battering PLAINTIFF after ordering her to 6 come to his living quarters in the backyard of Defendant CAROL NAGY’S home in Santa Ynez, California, on the night of August 13, 2021. 7 NAGY, a member of the Board of Directors and the Executive Director of MISSION 8 ROWING, founded the rowing club in Santa Barbara County in 2019 with GROOM as its head 9 coach after knowing and working closely with GROOM in the rowing community in Seattle, 10 Washington, for 13 years, including at their own private rowing club, the Seattle Rowing Center, 11 from 2010 to 2019. 12 Although NAGY, GROOM, and MISSION ROWING had special relationships with PLAINTIFF as a minor athlete entrusted to their care and supervision that gave rise to a duty by 13 these defendants to act with due care towards PLAINTFF, and although NAGY had knowledge of 14 GROOM’s disposition and propensity for aggressive, dangerous, and abusive behavior towards 15 minor, female, and other athletes under his control and supervision, and was in a position to 16 protect PLAINTIFF from such harm, NAGY shirked and breached her duty to protect 17 PLAINTIFF. Instead, NAGY protected GROOM by hiring him as MISSION ROWING’s head 18 coach knowing he was unfit for the position and presented a danger to athletes he coached, by 19 failing to adequately train or supervise him, by retaining him as a MISSION ROWING employee and coach, thereby allowing him unfettered access to, and power and control over, vulnerable 20 minor and female athletes like PLAINTIFF, and by failing to take effective action to address, and 21 continually making excuses for, his known erratic, inappropriate, and potentially harmful conduct. 22 These facts and others, which are alleged in detail in the FAC, are adequate to support 23 PLAINTIFF’s causes of action against NAGY individually for Negligent Supervision and 24 Retention, Negligence, Intentional Inflection of Emotional Distress, and Defamation, all of which 25 NAGY challenges in her demurrer. Because there are no valid bases for challenging these causes of action, the demurrer should be overruled in its entirety. 26 /// 27 /// 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 4 of 17 II. THE COURT MUST CONSTRUE THE FIRST AMENDED COMPLAINT 1 LIBERALLY WITH A VIEW TOWARD SUBSTANTIAL JUSTICE AND 2 OVERRULE THE DEMURRER IF IT APPEARS THAT PLAINTIFF IS ENTITLED TO RELIEF UNDER ANY OF THE CIRCUMSTANCES PLEADED 3 In ruling on NAGY’S demurrer, PLAINTIFF’S First Amended Complaint (“FAC”) must 4 be "liberally construed, with a view to substantial justice between the parties." Code Civ. Pro. 5 §452; see also Stevens v. Sup.Ct. (1999) 75 Cal.App.4th 594,601; Perez v. Golden Empire Transit 6 Dist. (2012) 209 Cal.App.4th 1228, 1238 (where allegations are subject to different reasonable 7 interpretations, court must draw "inferences favorable to the plaintiff, not the defendant"). The 8 court must accept as true all material facts properly pleaded, Blatty v. New York Times Co. (1986) 42 Cal. 3d 1033, 1040, and construe all facts in the light least favorable to defendant. Perdue v. 9 Crocker Natl. Bank (1985) 38 Cal. 3d 913, 922. It is error to sustain a demurrer if it appears that 10 the plaintiff is entitled to any relief under the circumstances pleaded. Dubins v. Regents of Univ. 11 Of Cal. (1994) 25 Cal. App. 4th 77, 82. Under these standards, NAGY’S demurrer should be 12 overruled in all respects. 13 III. PLAINTIFF’S EIGHTH CAUSE OF ACTION AGAINST NAGY FOR NEGLIGENT HIRING, TRAINING, SUPERVISION, AND RETENTION OF 14 GROOM AND NINTH CAUSE OF ACTION AGAINST NAGY FOR NEGLIGENCE ARE ADEQUATELY STATED 15 16 A. California Law Recognizes That Parties In Special Relationships with Minors and Other Vulnerable Individuals Have a Duty to Protect Them From Foreseeable Harm 17 To establish a cause of action for negligence against Defendant NAGY, PLAINTIFF must 18 show that NAGY had a duty to use due care, that she breached that duty, and that the breach was 19 the proximate or legal cause of the resulting injury. See Brown v. USA Taekwondo (2021) 11 Cal. 20 5th 204, 213-214. The general rule governing duty is set forth in Civil Code § 1714, which 21 provides: 22 Everyone is responsible, not only for the result of his or her willful acts but also for an injury occasioned to another by his or her want of ordinary care or skill in the management 23 of his or her property or person. 24 As the California Supreme Court confirmed in Brown v. USA Taekwondo, where it ruled 25 that the governing body for taekwondo in the United States had a duty to protect a female athlete 26 from her coach’s sexual abuse given the organization’s special relationship with the athlete and the 27 coach, and the foreseeability of such harm given widespread reports of sexual abuse by coaches in a variety of sports: 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 5 of 17 [Section 1714] establishes the default rule that each person has a duty to exercise, in his or 1 her activities, reasonable care for the safety of others.’ Brown, 11 Cal. 5th at 214. 2 “A special relationship between the defendant and the victim is one that 'gives the 3 victim a right to expect' protection from the defendant, while a special relationship between the 4 defendant and the dangerous third party is one that 'entails an ability to control [the third party's] 5 conduct.'” Brown at 216, quoting Regents of University of California v. Superior Court (2018) 4 th 6 Cal.5 607, 619 (holding that colleges and universities have a duty to protect or warn their students from foreseeable violence in classrooms or during curricular activities). Such special 7 relationships generally include “an aspect of dependency in which one party relies to some degree 8 on the other for protection” and the other party has “superior control over the means of 9 protection.” Regents at 620-621. 10 As the Court of Appeal explained in Doe v. Roman Catholic Archbishop of Los Angeles 11 (2021) 70 Cal.App.5th 657, 671: 12 ‘California courts have frequently recognized special relationships between children and their adult caregivers that give rise to a duty to prevent harms caused by the intentional or 13 criminal conduct of third parties.’ . . . For example, courts have found special relationships between a sport's governing body and minor athletes . . ., a school district (including its 14 employees) and the district's students . . .,a church camp and its campers . . . , a church and minor members engaged in church-sponsored ‘field service’ . . . , a police department and 15 teenage ‘explorers’ participating in a department program . . . and a scout organization and 16 its scouts. . . . In cases involving minors, courts generally have recognized a special relationship where adults and organizations ‘acted as 'quasi-parents' by assuming 17 responsibility for the safety of [minors] whose parents were not present.’ . . . (citations omitted.) . . . 18 19 ‘The existence of such a special relationship puts the defendant in a unique position to protect the plaintiff from injury. The law requires the defendant to use this position 20 accordingly.’ (Brown, supra, 11 Cal.5th at p. 216; see id. at pp. 220-221 [special relationship ‘extends a right of recovery to individuals in relationships involving 21 dependence or control, and who by virtue of those relationships have reason to expect the defendant's protection’]; Regents, supra, 4 Cal.5th at p. 621 ['[a] typical setting for the 22 recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and 23 dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare'] .) Where there is a special relationship between the defendant and a 24 minor, the obligation to provide protection and assistance may include a duty to protect the minor from third party abuse. (Brown, at p. 220; Hart, supra, 53 Cal.4th at p. 870.) 25 26 In her demurrer, NAGY does not deny that she had a duty to protect PLAINTIFF from 27 harm based on PLAINTIFF’s coach CONAL GROOM’s, MISSION ROWING’s (the organization she founded and ran) with PLAINTIFF. NAGY instead asserts that PLAINTIFF has failed to 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 6 of 17 allege sufficient facts to support her causes of action against NAGY for negligent supervision and 1 general negligence. As explained below, NAGY’s contentions are erroneous, and PLAINTIFF 2 has alleged sufficient facts to support these claims. Accordingly, the demurrer should be 3 overruled as to these challenged causes of action. 4 B. The FAC Adequately Alleges NAGY’S Negligent Hiring, Training, Supervision and Retention of GROOM Based on NAGY’s Knowledge That GROOM Was Unfit 5 to Coach and Posed a Risk of Harm to Minor Athletes Under His Supervision and 6 Control Like Plaintiff 7 Under well-established California law, an employer or individual may be liable to a third 8 person for negligently hiring an incompetent or unfit employee. See Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836. Such liability attaches when the defendant 9 “knows or should know, that the employee, because of past behaviors and other factors, is unfit for 10 the specific tasks to be performed.” Frederico v. Superior Court (1997) 59 Cal.App.4th 1207, 11 1215. 12 California law on negligent hiring, training, supervision and retention claims follows 13 the rule and comment set forth in the Restatement Second of Agency, § 213, which provides 14 in pertinent part: The principal may be negligent because he has reason to know that the servant or 15 other agent, because of his qualities, is likely to harm others in view of the work 16 or instrumentalities entrusted to him . . . [P] An agent, although otherwise competent, may be incompetent because of his reckless or vicious disposition, and 17 if a principal, without exercising due care in selection, employs a vicious person to do an act which necessarily brings him into contact with others while in the 18 performance of a duty, he is subject to liability for harm caused by the vicious 19 propensity. . . .” Id. at 842. 20 A negligent supervision claim depends, in part, on a showing that the risk of harm was 21 reasonably foreseeable. C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865. “Foreseeability is determined in light of all the circumstances and does not require prior 22 identical events or injuries . . . ‘It is not necessary to prove that the very injury which occurred 23 must have been foreseeable” to establish a negligent supervision claim. M.W. v. Panama Buena 24 Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519. See also D.Z. v. Los Angeles Unified 25 School Dist. (2019), 35 Cal. App. 5th 210, 229-231. 26 In this case, PLAINTIFF alleges the following facts establishing that NAGY had 27 knowledge of GROOM’s disposition and propensity for aggressive, dangerous, and abusive behavior towards minor, female, and other athletes under his control and supervision: 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 7 of 17 From 2010 to 2019, while GROOM served as head coach of rowing club SRC and NAGY 1 served as the club’s Director and GROOM’s supervisor, NAGY protected GROOM and 2 failed to take action to address coaching misconduct that he reportedly repeatedly engaged 3 in towards the athletes entrusted to his supervision, of which NAGY was aware. Young 4 athletes and their parents were subjected to, witnessed, or otherwise became aware of 5 wrongful, offensive, and at times dangerous actions by GROOM towards his athletes and 6 complained to GROOM and NAGY. NAGY was aware of GROOM’s wrongful, offensive, and dangerous actions, and of GROOM’s abuse of alcohol, which adversely 7 affected his behavior towards athletes he coached. [FAC, p. 7, ¶¶ 26 & 28.] 8 NAGY was aware of and received complaints regarding GROOM’s reckless disregard of 9 his rowers’ safety and well-being in connection with the Highway 520 Bridge incident on 10 Lake Washington in Seattle in November 2011, and GROOM’s belligerent and abusive 11 tirade towards a male high school rower who voiced concerns about the incident. [FAC, p. 12 8, ¶¶ 29-33.] NAGY was aware of the December 2014 Complaint against GROOM and SRC with 13 USROWING regarding the harm GROOM was causing to athletes he was coaching, 14 including reportedly initiating a sexual relationship with a female junior athlete, exhibiting 15 rageful behavior towards and creating an abusive environment for athletes, physically 16 threatening, assaulting, screaming, swearing, and using offensive and abusive language 17 towards athletes, including referring to female athletes with the “C word,” engaging in 18 inappropriate touching and sexually suggestive conversations with athletes, and grooming 19 young female rowers for potential future sexual attention and abuse. [FAC, p. 9, ¶¶ 34 – p. 12, ¶ 41; p. 15, ¶ 51.] 20 Numerous athletes, family members, and others reported to NAGY prior to GROOM’s 21 August 13, 2021 assault on PLAINTIFF various inappropriate, abusive, dangerous, and at 22 times violent actions by GROOM towards rowers he controlled, supervised, and/or came into 23 contact with, including belligerent altercations between GROOM and such athletes. [FAC, p. 24 14, ¶¶ 46 – 47.] 25 Prior to hiring GROOM to be head coach of MISSION ROWING, NAGY was aware of a letter from Pocock Rowing Center to USROWING regarding GROOM’s harmful and 26 offensive actions towards, and mistreatment of, athletes he coached, and was aware of those 27 wrongful acts by GROOM, which she had witnessed, had been reported to her, and/or were 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 8 of 17 otherwise known to her. Following submission of the December 2014 Complaint against 1 GROOM with USROWING by Pocock coach Margaret Christopher, NAGY sent threatening 2 emails to Pocock demanding that the club fire Christopher for reporting GROOM’s harmful 3 actions towards his athletes. NAGY later entered Pocock’s offices, angrily demanded that the 4 club fire Christopher, and threatened a club official by slamming her hands on the official’s 5 desk and stating that Christopher’s complaint against GROOM was “ruining [her] business” 6 and that “this needs to stop or I will sue you.” [FAC, p. 14, ¶¶ 47 – p. 15, ¶ 50.] NAGY failed to take any actions to address GROOM’s known abusive and dangerous 7 actions towards the athletes he coached, or to protect those athletes from further harm by 8 GROOM. Instead, NAGY routinely defended GROOM and his inappropriate behavior to 9 those who questioned or complained about GROOM, was complicit in his wrongful actions, 10 and sanctioned his wrongful actions by allowing them to continue unabated throughout the 11 time that NAGY worked with GROOM at SRC, and later, at MISSION ROWING. [FAC, p. 12 15, ¶ 51 – p. 16, ¶ 53.] During the summer of 2020, PLAINTIFF’s mother reported to NAGY that PLAINTIFF 13 had complained that GROOM had been arguing with her and other athletes and drinking 14 alcohol excessively, exacerbating his erratic and volatile behavior towards them. NAGY 15 responded by stating that GROOM could be “moody sometimes” and that it was “usually a 16 sign of stress,” and told PLAINTIFF’S mother to call GROOM to “check in,” but did not 17 indicate she would take any action to address PLAINTIFF’S mother’s and PLAINTIFF’s 18 concerns about GROOM’s offensive and potentially dangerous actions. [FAC, p.. 26, ¶¶ 97- 19 98.] After GROOM drank excessively and engaged in abusive behavior towards PLAINTIFF 20 during the June 2021 Junior Nationals, PLAINTIFF’S mother again complained to NAGY 21 about GROOM’S unsafe actions. NAGY admitted that GROOM had a “temper” but again 22 brushed off PLAINTIFF’S mother’s concerns. NAGY took no action to address GROOM’s 23 excessive drinking or other unsafe actions towards the athletes under his supervision, 24 notwithstanding that she had been advised about and was well-aware of his harmful and 25 dangerous behaviors. [FAC, p. 33, ¶ 124 – p. 34, ¶ 130.] These facts are sufficient to state a cause of action against NAGY for negligent supervision 26 of GROOM because they show that a reasonable person would realize that GROOM posed a risk 27 of harm and danger to athletes he coached, even if he had not engaged in known acts of sexual 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 9 of 17 abuse. As the FAC makes clear, GROOM’s sexual battery of PLAINTIFF on August 13, 2021, 1 was only one component of the harm and injury that GROOM perpetrated upon PLAINTIFF 2 during the time he coached her. But for NAGY’s negligent hiring, training, supervision, and 3 retention of GROOM as a rowing coach, GROOM would not have had the access to PLAINTIFF 4 or the opportunity to harm her in the various ways alleged in the FAC, and PLAINTIFF would not 5 have been injured by him. PLAINTIFF has adequately pleaded facts supporting this cause of 6 action against NAGY. C. The FAC Adequately Alleges NAGY’S Negligence In Failing to Protect Plaintiff 7 From Foreseeable Harm by GROOM 8 In Brown, the California Supreme Court reversed summary judgment on a female athlete’s 9 negligence claim against USA Taekwondo, the sport’s national governing body, arising from her 10 coach’s sexual abuse and affirmed the organization’s duty to plaintiff based on the current general 11 foreseeability of sexual abuse of athletes by coaches, although the particular risk of harm by the 12 abused athlete’s coach was not known. Similarly, in M. W. v. Panama Buena Vista Union School 13 Dist., the Court of Appeal ruled that a school district owed a duty of care to a student who was 14 sexually assaulted by another student in a school bathroom and that the risk of such an assault was foreseeable based on the district’s lack of supervision of students in the early morning when the 15 assault occurred in a known trouble spot, the unique vulnerabilities of special education students 16 like the victim, and the perpetrator’s prior record of discipline, even though he had not committed 17 any prior sexual assaults. 18 Taking an even broader view with respect to duty and foreseeability, the court in Doe v. 19 Roman Catholic Archbishop of Los Angeles reversed summary judgment for defendant Catholic 20 archdiocese on a negligence claim by a plaintiff who had been sexual abused by a priest when he 21 attended catechism classes, and held that the evidence offered by plaintiff that the archdiocese was aware that numerous priests had been accused of sexually abusing minors in the archdiocese and 22 around the country prior to the abuse in question made it reasonably foreseeable that minors 23 attending such classes might be sexually molested by a priest, even though the archdiocese did not 24 have knowledge of prior sexual misconduct by this particular perpetrator. See also Evan F. 8 25 Cal.App.4th 828, 842-843 (holding that although defendant church had no actual knowledge of the 26 deviant sexual history of the pastor who had sexually abused the 13-year-old plaintiff parishioner, 27 there were disputed issues of fact regarding the church’s knowledge of the pastor’s general unfitness for hire that precluded summary judgment for defendant). 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 10 of 17 As described above, the FAC provides a detailed account of NAGY’s knowledge of 1 violent, abusive, and dangerous actions by GROOM toward athletes he coached before NAGY 2 hired GROOM as head coach of MISSION ROWING, and of additional offensive and unsafe 3 behaviors by GROOM thereafter, and throughout the time he coached PLAINTIFF. Such known 4 misconduct established GROOM’s dangerous actions and propensities towards athletes under his 5 control, and made it foreseeable that one or more of those athletes, especially a minor female like 6 PLAINTIFF, would be physically and/or emotionally harmed and injured by him. Accordingly, the nature of GROOM’s employment and role as PLAINTIFF’s coach, and the power and 7 authority that GROOM had over PLAINTIFF given his role as her coach and mentor (which 8 GROOM fostered and shored up by engaging in the grooming activities described in the FAC) 9 created a foreseeable risk that GROOM would have the access, the ability, and the opportunity to, 10 and would, harm PLAINTIFF in the various ways alleged in the FAC. 11 The fact that GROOM committed some of his most egregious tortious acts towards 12 PLAINTIFF at his living quarters away from designated training areas, that fact does not defeat PLAINTIFF’S allegations that such actions were foreseeable by NAGY, given that GROOM 13 repeatedly used his authority as PLAINTIFF’s coach to direct her to come to his home on 14 NAGY’s property and spend time alone with him there as part of his coaching and mentoring 15 relationship with PLAINTIFF. 16 Finally, the FAC alleges that GROOM engaged in numerous acts of assault and battery 17 towards her prior to the August 13, 2021 incident at GROOM’s home, including while he was 18 engaged in coaching duties on behalf of MISSION ROWING at various training and competition 19 locations, often while other MISSION ROWING athletes were present. These allegations are more than sufficient to state a cause of action against NAGY for her 20 individual negligence in failing to protect PLAINTIFF from GROOM’s abusive actions, which 21 continued unabated during the time GROOM coached PLAINTIFF at MISSION ROWING, and 22 hich culminated in, but were not limited to, his false imprisonment and sexual battery of 23 PLAINTIFF in the living quarters that NAGY provided for GROOM to reside in in the backyard 24 of her home.1 25 1 NAGY’s assertion that a demurrer should be granted as to the above causes of action because as Executive Director 26 of GROOM’s employer, MISSION ROWING, she is not vicariously liable for GROOM’S wrongful acts (NAGY Memo, p. 3, ln. 22–p. 4, ln. 3), is misplaced. As explained above, PLAINTIFF is not asserting that NAGY is 27 vicariously liable for GROOM’S injurious actions, but rather, that NAGY is directly liable based on her own individual negligent acts as described in the FAC. 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 11 of 17 III. PLAINTIFF’S SEVENTH CAUSE OF ACTION AGAINST NAGY FOR 1 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS ADEQUATELY 2 STATED 3 The elements of the tort of intentional infliction of emotional distress (“IIED”) are: (1) 4 extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) plaintiff suffering severe or 5 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the 6 defendant's outrageous conduct. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903. To be 7 outrageous, conduct must be so extreme as to exceed all bounds of that usually tolerated in a 8 civilized community. Id. The defendant must have engaged in “’conduct intended to inflict injury 9 or engaged in with the realization that injury will result. Id. (emphasis added). The conduct must 10 also “be directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” Id. 11 The FAC adequate states a cause of action claim against NAGY for IIED based on each of 12 these elements of the claim, based on a “reckless disregard” theory of liability. Specially, the FAC 13 alleges that: 14 (1) NAGY committed various acts of extreme and outrageous conduct against PLAINTIFF by 15 hiring CONAL GROOM as the head coach of MISSION ROWING and allowing GROOM 16 to remain employed with MISSION ROWING notwithstanding NAGY’s knowledge of 17 numerous complaints of abusive, violent, and dangerous behavior by GROOM while coaching, supervising, and engaging with athletes under his control and/or supervision; by 18 knowingly permitting GROOM to have unfettered access to and undue influence over 19 PLAINTIFF as her coach and permitting GROOM to engage in predatory grooming by 20 spending one-on-one time with PLAINTIFF at NAGY’S property (where NAGY provided 21 GROOM with living quarters); and by knowingly allowing and taking no action to address 22 GROOM’s excessive drinking and alcohol abuse, and/or GROOM’s repeatedly engaging 23 in angry outbursts, temper tantrums, and a variety of inappropriate actions and behaviors, while coaching, supervising, and engaging with PLAINTIFF and other MISSION 24 ROWING athletes, all with reckless disregard of the probability of causing PLAINTIFF 25 emotional distress [FAC, pp. 3-4, ¶¶10–13; p. 18, ¶62, p. 26, ¶98, p. 34, ¶130, p. 40, ¶163, 26 pp. 42-45, ¶¶176-189, p. 55-56, ¶¶ 236–241]; 27 (2) PLAINTIFF suffered severe emotional distress [FAC, p. 55, ¶ 236–p. 56, ¶ 239]; and 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 12 of 17 (3) PLAINTIFF’s emotional distress was actually and proximately caused by NAGY’s 1 outrageous conduct. [Id.] 2 These allegations are sufficient to state a cause of action against NAGY for IIED. 3 IV. PLAINTIFF’S TENTH CAUSE OF ACTION AGAINST NAGY FOR 4 DEFAMATION IS ADEQUATELY STATED 5 NAGY demurs to PLAINTIFF’S defamation claim based on the assertion that the 6 statements in NAGY’S August 16, 2021 email to MISSION ROWING director and coach Tom Kellett and rowing coach Richard Hull, a copy of which is attached as Exhibit “A” to the FAC, are 7 statements of opinion rather than fact. (NAGY Memorandum, p. 9, lns. 6–22.) NAGY’s 8 contention is incorrect and does not support her demurrer as to this cause of action. 9 As the California and United States Supreme Courts have recognized, not all statements 10 that appear to be opinions are immunized from liability for defamation. See Bently Reserve LP v. 11 Papaliolios (2013) 218 Cal.App.4th 418, 426-427, quoting Summit Bank v. Rogers (2012) 206 12 Cal.App.4th 669, 696 and Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 17. ‘In Milkovich . . . the United States Supreme Court moved away from the notion that 13 defamatory statements categorized as opinion as opposed to fact enjoy wholesale 14 protection under the First Amendment. Significantly, the court recognized that ‘expressions of “opinion” may often imply an assertion of objective fact.’ . . .‘If a speaker 15 says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he 16 bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of 17 them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications’ . . . cf. Weller v. 18 American Broadcasting Companies., Inc. (1991) 232 Cal.App.3d 991, 1004 [283 Cal.Rptr. 644] (Weller) [“we reject the notion that merely couching an assertion of a defamatory fact 19 in cautionary language such as ‘apparently’ or ‘some sources say’ or even putting it in the form of a question, necessarily defuses the impression that the speaker is communicating 20 an actual fact”].) 21 Thus a false statement of fact, whether expressly stated or implied from an expression of 22 opinion, is actionable. . . . The key is not parsing whether a published statement is fact or opinion, but ‘whether a reasonable fact finder could conclude the published statement 23 declares or implies a provably false assertion of fact.’ For example, “an opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion” 24 “ 25 To decide whether a statement expresses or implies a provably false assertion of fact, courts use a totality of the circumstances test. . . . “[A] court must put itself in the place of 26 an average reader and determine the natural and probable effect of the statement … .” Bently, 218 Cal.App.4th at 427. 27 See also Okun v. Superior Court (1981) 29 Cal.3d 442, 451-452 (statement of opinion may be 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 13 of 17 actionable if it implies the allegation of undisclosed defamatory facts as the basis for the opinion). 1 As the court of appeal explained in Ringler Associates Inc. v. Maryland Casualty Co. 2 (2000) 80 Cal.App.4th 1165, 1181, “there is no wholesale defamation exemption for anything that 3 might be labeled an opinion. If a statement of opinion implies a knowledge of facts which may 4 lead to a defamatory conclusion, the implied facts must themselves be true.” If the publisher of 5 the opinion states facts upon which they base the opinion which are incorrect or incomplete, or 6 their assessment of them is erroneous, the statement of opinion may still imply a false assertion of fact. Id. Simply couching such statements in terms of opinion does not dispel these implications, 7 and such statements may be actionable. Id. Put another way, “It is not the literal truth or falsity of 8 each word or detail used in a statement which determines whether or not it is defamatory; rather, 9 the determinative question is whether the ‘gist or sting’ of the statement is true or false, benign or 10 defamatory, in substance. Ringler at 1181-1182 (emphasis in original). 11 In Bently, a plaintiff apartment building owner sued the defendant for defamation based on 12 the negative review of the building the defendant had posted on the Internet. The court of appeal concluded that the defendant's review, which used some hyperbole and name-calling but also 13 included purported facts, was reasonably susceptible of an interpretation which implied a provably 14 false assertion of fact, and therefore properly subject to a defamation claim. 15 The court in Bentley further noted that the defendant attempted through his statements “to 16 win credibility with his audience” as to the factual assertions he was making, and that such 17 assurances “suggest facts are being communicated, not opinions. (See Elder, Defamation: A 18 Lawyer's Guide (2012) Fact Versus Opinion, § 8:2 [representation that speaker has “private, 19 firsthand knowledge” relevant to the fact/opinion distinction]; see also Super Future Equities, Inc. v. Wells Fargo Bank Minnesota, N.A. (N.D.Tex. 2008) 553 F.Supp.2d 680, 689 [where defendant 20 “claims to verify the accuracy of the information he posts” his online “statements are not protected 21 opinions”].) Bently, 218 Cal.App.4th at 428-429. 22 Here, NAGY makes the following factual statements in her August 16, 2021 email that 23 PLAINTIF alleges are false: 24 “I warned [GROOM] back in the spring about the manipulative behavior [that PLAINTIFF was engaging in] I was seeing and very uncomfortable with”; 25 “late April/early May Kat was sent workouts to do for Selection Camp .... for weeks on 26 end [PLAINTIFF] would come to practice and flat out refuse to do the workout or get 5 27 minutes in, give up, start crying and blame him because it was to [sic] hard”; 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 14 of 17 if a kid [like PLAINTIFF] is going to selection camp shouldn't they be able to do workouts 1 without a daily mental breakdown?” 2 As in Bentley, the fact that NAGY uses hyperbole and expresses opinions along with these 3 assertions of fact, and even asserts certain facts in the form of a question (i.e., shouldn't 4 PLAINTIFF, who was training for selection camp, “be able to do workouts without a daily mental 5 breakdown?”, thereby indirectly stating that PLAINTIF could NOT do the workouts without “a 6 daily mental breakdown”), does not defeat PLAINTIFF’S defamation claim as to the facts expressed. As alleged in the FAC, the “gist or sting” of each of these statements about PLAINTIF 7 is false in substance, thereby making the actionably defamatory. See Ringler at 1181-1182. 8 Moreover, like the defendant in Bentley, NAGY represents throughout the email that she has 9 private, firsthand knowledge relevant to the facts described therein by repeatedly mentioning her 10 intimate conversations with GROOM and their longstanding close relationship, stating in pertinent 11 part: 12 “Just finished a long and productive conversation with Conal.” “We talked about the excessive drinking- I pointed out that during the lock down when 13 he'd have a couple of beers at night during/after dinner it was never a problem .... I think it 14 was when he started drinking Jameson in addition to the beer that the alcohol started clouding his judgement. We left that part of the conversation by him handing me his bottle 15 of Jameson, and telling me if he brought another bottle of hard liquor in the house to take it away from him ..... and he'll start thinking of strategies to limit himself to one or two beers 16 a night. I've seen him go months on end without touching a drop of alcohol..... think he can 17 get there, just needs some help-“ 18 “We talked about what an easy target he was and has been as long as I've known him. Sadly part of that is why he is such a good coach, it is also how he gets himself in trouble 19 because he does not maintain enough mental/emotional separation between himself and his athletes. . . . He went to extraordinary lengths to build her confidence ..... I actually talked 20 to [PLAINTIFF’S mother] Julie about it at the time because I could see the toll he was allowing it to take on himself mentally. I told him my two cents in a situation like 21 that....tell the kid to suck it up and do the workouts or go find something else to do that summer.” 22 “So many people have given up on him in this life .... I think he never wants an athlete to 23 feel like he's given up on them ... to a fault. He understands intellectually, just don't know if he is capable of walking away when he 24 needs to.” 25 “I asked him what he thinks is the best path forward so he stops shooting himself in the foot.” 26 NAGY’S affirmations of her inside knowledge of the facts asserted in her email strongly suggest 27 that she is communicating facts, not opinions. Bentley at 428-429. Accordingly, PLAINTIFF’S 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 15 of 17 allegations are more than sufficient to state a cause of action against NAGY for defamation based 1 on the false statements in NAGY’S August 16, 2021 email. 2 2 V. CONCLUSION 3 For all these reasons, PLAINTIFF respectfully requests that the Court overrule NAGY’S 4 demurrer in its entirety. If the Court is inclined to grant the demurrer as to one or more challenged 5 causes of action, PLAINTIFF respectfully requests that the Court provide PLAINTIFF with leave 6 to amend the FAC to specifically address any deficiencies the Court may find. 7 Dated: September 28, 2023 /s/ Janean Acevedo Daniels_____ 8 Janean Acevedo Daniels Attorney for PLAINTIFF KATHERINE 9 LORD-KRAUSE 10 11 12 13 14 15 16 17 18 19 20 21 22 2 NAGY also demurs to the seventh, eighth, ninth, tenth causes of action on the grounds that they are 23 “uncertain, ambiguous, and unintelligible under Code Civ. Proc. § 430.10(f). NAGY’s counsel did not meet and confer with Plaintiff’s counsel regarding any such alleged deficiencies in the FAC as required by Code of Civil 24 Procedure § 430.41(a) (see Declaration of Janean Acevedo Daniels, p. 1, ¶¶ 2-3 & Exhibit “A” thereto), nor did NAGY address these purported deficiencies in her Memorandum filed in support of the demurrer. Moreover, a 25 demurrer for uncertainty should only be sustained when a complaint is so bad that the defendant cannot reasonably respond; i.e., they cannot reasonably determine what issues must be admitted or denied, or what counts or claims are 26 directed against them. See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616. PLAINTIFF’S detailed complaint provides NAGY with sufficient information regarding her factual allegations that NAGY may reasonably 27 respond. 28 PLAINTIFF’S OPPOSITION TO DEFENDANT NAGY’S DEMURRER Page 16 of 17 EXHIBIT “A” TO DECLARATION OF JANEAN ACEVEDO DANIELS ZELMS, ERLICH, & MACK Brian T. Smith Direct: (213) 712-8075 bsmith@zelmserlich.com August 22, 2023 VIA E-MAIL janean@jadanielslaw.com Janean Acevedo Daniels, Esq. 1160 Via Del Rey Goleta, CA 93117 Re: Katherine Lord Krause v. Mission Rowing, et al, Meet and Confer re First Amended Complaint Dear Ms. Acevedo Daniels: As you know, this office represents Carol Nagy in this matter. This letter serves to initiate the meet and confer process with you regarding the allegations of plaintiff Katherine Lord Krause’s first amended complaint (“FAC”). For the reasons set forth herein, Ms. Nagy intends to demurrer to all causes of action against her in the FAC and move to strike portions of this pleading. The FAC alleges that Conal Groom engaged in inappropriate physical contact with plaintiff on August 13, 2021 when she visited his living quarters in the backyard of Ms. Nagy’s property and that this constitutes assault and battery upon her. Plaintiff contends that Groom did so in the course and scope of employment with Mission Rowing, where he was a rowing coach and plaintiff was a member of the rowing team. The FAC asserts that Carol Nagy was a “Director”, “Executive Director” and a “managing agent” of Mission Rowing and based thereon, seeks to impose liability on Ms. Nagy for the alleged torts of Mr. Groom as an agent of Mission Rowing. [FAC ¶98] The FAC does so by asserting that Nagy, as the Director of Mission Rowing, was aware of offensive and potentially dangerous acts of Groom, including excessive drinking of alcohol, anger issues, and improper comments, of a sexual nature, to minor females involved in rowing programs. [FAC ¶23, 28, 33, 46 & 50] EXHIBIT A _______________________________________________________________________________________ 20920 Warner Center Ln., #B, Woodland Hills, CA 91367 | P (213) 712-8075 | zelmserlich.com 1 The FAC contends that Carol Nagy acted with knowing and reckless disregard for, and lack of due care for, plaintiff’s safety; failed to take action to address or stop Mr. Groom’s wrongful conduct; and allowed Mr. Groom to continue to coach plaintiff and other athletes at Mission Rowing, thereby ratifying his wrongful conduct. [FAC ¶18, 52, & 62] Unfortunately, the alleged sexual assault of plaintiff is attributed to Ms. Nagy, since she was in a management position at Mission Rowing, a California non-profit corporation, rather than to