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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 MISSION ROWING’S
14 public benefit corporation; CONAL DEMURRER
GROOM, an individual; CAROL NAGY, an
15 individual; UNITED STATES ROWING
HEARING DATE: October 11, 2023
ASSOCIATION, a Pennsylvania nonprofit
16 corporation, and DOES 1-50, inclusive, TIME: 8:30 a.m.
DEPT.: SM3
17
DEFENDANTS. Action Filed: April 25, 2023
18 Trial Date: None Set
19
20
21
22 PLAINTIFF KATHERINE LORD-KRAUSE submits the following opposition to
23 DEFENDANT MISSION ROWING’S demurrer to PLAINTIFF’S First Amended Complaint
24 (“FAC”).
25
26
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 1 of 16
TABLE OF CONTENTS
1
2
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3
II. THE COURT MUST CONSTRUE THE FIRST AMENDED COMPLAINT
4 LIBERALLY AND OVERRULE THE DEMURRER IF IT APPEARS THAT
PLAINTIFF IS ENTITLED TO RELIEF UNDER ANY CIRCUMSTANCES . . 6
5
III. PLAINTIFF’S FIRST CAUSE OF ACTION FOR ASSAULT AND BATTERY,
6 SECOND CAUSE OF ACTION FOR SEXUAL BATTERY, AND SIXTH CAUSE
OF ACTION FOR FALSE IMPRISONMENT AGAINST MISSION ROWING ARE
7
ADEQUATELY STATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8
A. MISSION ROWING Is Liable For GROOM’s Tortious Conduct Towards
9 PLAINTIFF Under the Respondeat Superior Doctrine Because GROOM Had
Frequent Close Contact With, Control Over and Access to PLAINTIFF Due to
10 His Position and Employment as a MISSION ROWING Coach, Thereby Giving
Him the Foreseeable Opportunity to Engage in Such Wrongful Acts, and Was
11
Within the Course and Scope of His Employment in Committing Such Acts . . 6
12
B. MISSION ROWING Is Liable For GROOM’s Tortious Conduct Towards
13 PLAINTIFF Because it Ratified GROOM’s Wrongful Actions . . . . . . . . . . . . 11
14 IV. PLAINTIFF’S THIRD CAUSE OF ACTION FOR SEXUAL HARASSMENT IN
VIOLATION OF CIVIL CODE § 51.9 AND FIFTH CAUSE OF ACTION FOR
15 GENDER VIOLENCE IN VIOLATION OF CIVIL CODE § 52.4 AGAINST
MISSION ROWING ARE ADEQUATELY STATED . . . . . . . . . . . . . . . . . . . . . . 13
16
17 V. PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS IS ADEQUATELY STATED . . . . 15
18
VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 2 of 16
TABLE OF AUTHORITIES
1
Cases:
2
Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3
Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040 . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Perdue v. Crocker Natl. Bank (1985) 38 Cal.3d 913, 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5 Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 . . . . . . . . . . . . . . 6
6 Dubins v. Regents of Univ. Of Cal. (1994) (1994) 25 Cal. App. 4th 77, 82. . . . . . . . . . . . . . . 6
Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 . . . . . . . . . . . . . . . . . . . . . . 7
7
Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 379 . . . . . . . . . . . . . . . . . . . . . . . 7
8
Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 . . . . . . . . . . . . . . . . . . . . . 8
9
Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 657 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 621–624 . . . . . . . . . . . . . . . . . . . 8
11 Fields v. Sanders (1947) 29 Cal.2d 834, 841–842 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12 Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202 . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10
Brown v. USA Taekwondo (2021) 11 Cal. 5th 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
13
Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 671 . . . . . . . 10
14
Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4th 291, 300 . . . . . . . . . 10
15
Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169-170 . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
16 Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852 . . . . . . . . . . . . . . . . 11, 12, 13
17 Panterra GP, Inc. v. Sup. Ct. of Kern County (2022) 74 Cal.App.5th 697, 711 . . . . . . . . . . . . 13
18 C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094 . . . . . . . . . . . . . . . . . . . . . . . . . 14
19 Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790 . . . . . . . . . . . . . . . . . . . . . . . . 15
Statutes:
20
Code of Civil Procedure § 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
21
Civil Code § 51.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
22 Civil Code § 52.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
23 Other:
24 2 Judicial Council of California Civil Jury Instructions 3700 . . . . . . . . . . . . . . . . . . . . . . . . . . 7
25 2 Judicial Council of California Civil Jury Instructions 3722 . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2 Judicial Council of California Civil Jury Instructions 3065 . . . . . . . . . . . . . . . . . . . . . . . . . . 13
26
1 Judicial Council of California Civil Jury Instructions 1600 . . . . . . . . . . . . . . . . . . . . . . . . . . 15
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 3 of 16
I. INTRODUCTION
1
From May 2019 until the night of August 13, 2021, when PLAINTIFF was falsely
2
imprisoned, assaulted, battered, and sexually battered by MISSION ROWING employee and
3
coach CONAL GROOM in living quarters provided to him by MISSION ROWING’s Executive
4 Director, CAROL NAGY, in the backyard of her home, PLAINTIFF was a minor athlete and
5 member of MISSION ROWING’s rowing club. Throughout the time that PLAINTIFF rowed
6 with the club, MISSION ROWING, NAGY and GROOM had special relationships with
PLAINTIFF as a minor athlete entrusted to their care and supervision which gave rise to a duty of
7
care towards PLAINTIFF.
8
Notwithstanding their duty of care, MISSION ROWING and NAGY knowingly,
9
recklessly, and negligently allowed GROOM to engage in an ongoing course of abusive,
10 offensive, and harmful actions towards PLAINTIFF, including:
11 A) becoming angry, belligerent, and verbally abusive towards PLAINTIFF, yelling and
12 screaming at her, and calling her a “bitch” and a “slut” during workouts and at rowing
competitions, causing her to feel frightened, demeaned, anxious, and upset, and to
13
experience panic attacks [FAC, p. 22, ¶77; p. 26, ¶96; p. 30, ¶¶110-111; p. 33, ¶125; p. 34,
14
¶128; pp. 31-32, ¶¶117-118];
15
B) engaging in violent and threatening behavior toward PLAINTIFF during training sessions,
16 including placing his hands around her throat in chokeholds and grabbing a rowing
17 machine handle out of PLAINTIFF’s hands while she was training on the machine and
18 throwing it so hard against the machine cage that it broke, then screaming at her [FAC, p.
19 27, ¶101; pp. 30-31, ¶¶112-113];
C) repeatedly touching PLAINTIFF in offensive, unwelcome, and inappropriate ways on
20
numerous occasions prior to the August 13, 2021 Assault, including frequent unwanted
21
touching of various parts of her body, backrubs, and full body hugs [FAC, p. 27, ¶99];
22
D) engaging in predatory grooming behaviors toward PLAINTIFF that often precede sexual
23 abuse [FAC, p. 16, ¶58 – p. 18, ¶64; pp. 21-22, ¶76];
24 E) gaining access to PLAINTIFF’s cell phone due to his position as her rowing coach and
25 sending PLAINTIFF unwelcome, offensive, and inappropriate SnapChat and text messages
and engaging in phone conversations and FaceTime calls with PLAINTIFF of an unwanted
26
intimate and/or sexual nature [FAC, pp. 28-29, ¶¶104 & 106; pp. 34-36, ¶¶131-135];
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 4 of 16
F) intruding and inserting himself into PLAINTIFF’s sexually private matters by
1
admonishing her not to end up pregnant or have sex with her boyfriend, and questioning
2
her about her use of birth control and sex with her boyfriend [FAC, p. 31, ¶116];
3
G) On August 11, 2021, two days before the August 13, 2021 Assault, texting PLAINTIFF, “I
4 woke up so excited to row with you!” then later that day, anticipating that she would be
5 leaving Santa Ynez and returning to Seattle following her scheduled rowing training,
6 texting PLAINTIFF, “Can we make dinner together one last time? Friday? Or something?”
and adding that he wanted “another week” with her [FAC, p. 36, ¶140].
7
8 GROOM’S harmful and offensive actions toward PLAINTIFF throughout the two-plus
9 year period that he coached, trained, groomed, and cultivated a harmful and inappropriate and
intimate relationship with her culminated in GROOM using his power, influence and authority as
10
PLAINTIFF’S coach, mentor, and professed “friend” who “loved her” to order her on August 13,
11
2021 to come to his residence on MISSION ROWING Executive Director CAROL NAGY’s
12
property, which NAGY had provided for GROOM’S unsupervised use, where he detained and
13 assaulted her [FAC, pp. 3-4, ¶¶10–13; pp. 37-40, ¶¶143-163].
14 As alleged in the FAC, GROOM engaged in these actions--which were engendered by
15 events and conditions relating to his coaching duties and tasks as an employee of MISSION
16 ROWING, and which were inextricably intertwined with his role and position as PLAINTIFF’s
coach and mentor--in the course and scope of his employment with MISSION ROWING. [FAC,
17
p. 2, ¶5, p. 4 ¶12, pp. 17-18, ¶61, pp. 19-21, ¶¶69-73, pp. 21-23, ¶¶75-81, p. 24, ¶¶84-86, p. 25,
18
¶¶90-91, p. 27, ¶¶99, 101 & 103, p. 28, ¶104, pp. 28-29, ¶106, p. 33, ¶¶124-127, pp. 34-36, ¶¶131-
19 142, p. 37, ¶¶143-145 & 148-149, p. 38-40, ¶¶150-163].
20 As further alleged, MISSION ROWING ratified GROOM’s injurious actions towards
21 PLAINTIFF by hiring and retaining GROOM as an employee with knowledge of his abusive
22 actions towards athletes he had coached before PLAINTIFF, and towards PLAINTIFF herself; by
failing to investigate or address GROOM’s inappropriate actions towards athletes under his
23
supervision and known, reported misconduct towards PLAINTIFF while he was coaching her; by
24
MISSION ROWING’s officer and director NAGY advocating for the club to retain GROOM after
25 his reported and admitted assault of PLAINTIFF on August 13, 2021; and by MISSION ROWING
26 maintaining GROOM’s employment and allowing him to continue coaching thereafter [FAC, pp.
27 3-4, ¶¶10–13; p. 18, ¶62, p. 26, ¶98, p. 34, ¶130, p. 40, ¶163, pp. 42-45, ¶¶176-189.]
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 5 of 16
Based on these allegations, which must be accepted as true for the purpose of this
1
demurrer, PLAINTIFF has adequately stated facts supporting the causes of action against
2
MISSION ROWING arising from GROOM’s tortious conduct based on MISSION ROWING’s
3
ratification thereof, and based on the organization’s respondeat superior liability as GROOM’s
4 employer. For these reasons, the demurrer should be denied.
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
7
PLAINTIFF filed her original Complaint on April 25, 2023. After PLAINTIFF’S counsel
8 received a meet and confer letter from MISSION ROWING’s counsel on July 12, 2023 regarding
9 alleged deficiencies in the original Complaint, PLAINTIFF filed a First Amended Complaint that
10 addressed the purported shortcomings in the original Complaint, and made other changes. After
the FAC was filed, MISSION ROWING’s counsel failed to meet and confer regarding any
11
asserted deficiencies in the FAC prior to filing its demurrer thereto as required by Code of Civil
12
Procedure § 430.41(f). [See Declaration of Janean Acevedo Daniels, pp. 1-2, ¶¶2-4.]
13
In ruling on MISSION ROWING’s demurrer to the FAC, the court is required to liberally
14 construe PLAINTIFF’S First Amended Complaint “with a view to substantial justice between the
15 parties,” Code Civ. Pro. § 452; Stevens v. Sup.Ct. (1999) 75 Cal.App.4th 594, 601. The court must
16 accept as true all material facts properly pleaded, Blatty v. New York Times Co. (1986) 42 Cal.3d
17 1033, 1040, and construe all facts in the light least favorable to defendant. Perdue v. Crocker
Natl. Bank (1985) 38 Cal.3d 913, 922. Where allegations are subject to different reasonable
18
interpretations, the court must draw "inferences favorable to the plaintiff, not the defendant."
19
Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238. It is error to sustain a
20 demurrer if it appears that the plaintiff is entitled to any relief under the circumstances pleaded.
21 Dubins v. NAGY of Univ. Of Cal. (1994) 25 Cal. App. 4th 77, 82. Under these standards,
22 MISSION ROWING’s demurrer should be overruled in all respects.
23 III. PLAINTIFF’S FIRST CAUSE OF ACTION FOR ASSAULT AND BATTERY,
SECOND CAUSE OF ACTION FOR SEXUAL BATTERY, AND SIXTH CAUSE
24 OF ACTION FOR FALSE IMPRISONMENT AGAINST MISSION ROWING ARE
ADEQUATELY STATED
25
A. MISSION ROWING Is Liable For GROOM’s Tortious Conduct Towards
26
PLAINTIFF Under the Respondeat Superior Doctrine Because GROOM Had
27 Frequent Close Contact With, Control Over and Access to PLAINTIFF Due to His
Position and Employment as a MISSION ROWING Coach, Thereby Giving Him the
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 6 of 16
Foreseeable Opportunity to Engage in Such Wrongful Acts, and Was Within the
1 Course and Scope of His Employment in Committing Such Acts
2
As MISSION ROWING acknowledges in its demurrer, it may properly be held liable for
3
GROOM’s injurious actions toward PLAINTIFF as alleged in First, Second and Sixth Causes of
4 action if GROOM was within the course and scope of his employment with MISSION ROWING
5 when he engaged in the conduct giving rise to these claims. [MISSION ROWING Memorandum
6 (“MR Memo”), p. 8, lns. 16-18.] See Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962,
967; 2 Judicial Council of California Civil Jury Instructions (“CACI”) 3700. Because the FAC
7
alleges that GROOM’s abusive actions towards PLAINTIFF were made possible by and arose
8
from his position and employment with MISSION ROWING as PLAINTIFF’s coach and mentor,
9
and because GROOM’S injurious acts were inextricably intertwined with the close coaching
10 relationship he fostered with PLAINTIFF and the power and influence he had over her as her
11 coach, GROOM’S actions were in fact within the course and scope of his employment.
12 Although MISSION ROWING contends that GROOM was not acting within the course
and scope of his employment when he assaulted, battered, and sexually battered PLAINTIFF on
13
August 13, 2021 because his conduct was purportedly unauthorized and unexpected by his
14
employer [MR Memo, p. 8, ln. 6–p. 9, ln. 9], this contention is unsupportable for several reasons.
15
First, an employee's unauthorized conduct may be within the scope of employment if it
16 was committed in the course of a series of acts authorized by the employer, or the conduct arose
17 from a risk inherent in or created by the enterprise. 2 CACI 3722. Moreover, an employee's
18 wrongful or criminal conduct may be within the scope of employment even if it breaks an
19 employer’s rule or does not benefit the employer. Id.; Flores v. AutoZone West, Inc. (2008) 161
Cal.App.4th 373, 379 (an employee's willful, malicious and even criminal torts may fall within
20
scope of employment for purposes of respondeat superior liability even though employer has not
21
authorized employee to commit crimes or intentional torts).
22 In Flores v. AutoZone West, the court of appeal reversed summary judgment for the
23 defendant employer auto parts store and held that its employee’s assault and battery of a customer
24 with a pipe stemming from an interaction with the customer could be a predictable risk of retail
25 employment for purposes of respondeat superior liability. Id., 161 Cal.App.4th 373, 379–384. The
court reviewed other cases discussing employer liability for employee’s intentional torts and
26
concluded that the store employee’s attack of the customer was an outgrowth of the employee's
27
work because the altercation arose from the employee’s performance of his duties, and “his entire
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 7 of 16
association” with the victim arose out of his employment. Id. at 161 Cal.App.4th 379–380. See
1
also Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 (Budget Rent-A-Car
2
vicariously liable when customer was severely beaten by employee following a dispute about
3
amount of deposit required); Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 657 (employer
4 building contractor was vicariously liable for employee’s assault and battery when employee
5 threw a hammer at another contractor’s employee after dispute relating to how employee was
6 doing his job; employee’s violent, unauthorized actions were found to be within scope of
employment); Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 621–624 (after-hours
7
battery of general contractor’s employees by subcontractor’s employees on jobsite was within
8
scope of employment where employees often socialized after work and dispute arose in part over
9
rights and duties of employees); Fields v. Sanders (1947) 29 Cal.2d 834, 841–842 (employee
10 truckdriver who assaulted victim during traffic mishap dispute was within scope of employment).
11 Here, as in these cases, GROOM’s association with and access to PLAINTIFF arose out of
12 his employment with MISSION ROWING and his position as PLAINTIFF’s coach. Many of
GROOM’s abusive actions toward PLAINTIFF occurred while he was coaching her, both during
13
scheduled workouts, and during coaching/mentoring sessions he arranged with her outside of
14
scheduled practices times (either in person or by phone or video communication). The fact that
15
GROOM’s particularly egregious actions towards PLAINTIFF on August 13, 2021 occurred at his
16 home in the evening hours does not bring those actions outside the scope of GROOM’s
17 employment, given that he frequently engaged in coaching activities with PLAINTIFF during
18 evening and other off hours at his residence, at other locations, and via phone or video contact.
19 See Rodgers, 50 Cal.App.3d at 621–62.
Finding an employee’s intentional tort to be within the course and scope of their
20
employment is particularly appropriate where the employee has been vested with authority over
21
their victim and their wrongful actions stemmed from the employee’s use or misuse of their
22 authority, such as the authority that a police officer has over members of the public. See Mary M.
23 v. City of Los Angeles (1991) 54 Cal. 3d 202 (holding a jury could reasonably conclude that a
24 police officer who detained plaintiff in a traffic stop, ordered her into his police car, drove her
25 home and raped her was acting within the scope of his employment, and his employer could be
found vicariously liable for the officer’s misuse of his job-created authority).
26
In this case, GROOM had access to and authority over PLAINTIFF based on his position
27
and employment by MISSION ROWING as her rowing coach, and his abusive actions as alleged
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 8 of 16
in the First, Second and Sixth Causes of Action were inextricably intertwined with that authority,
1
and his position and employment. In particular:
2
GROOM angrily berated, yelled and screamed at, and verbally abused PLAINTIFF during
3
workouts and at rowing competitions [FAC, p. 22, ¶77; p. 26, ¶96; p. 30, ¶¶110-111; p. 33,
4 ¶125; p. 34, ¶128; pp. 31-32, ¶¶117-118];
5 GROOM engaged in violent and physically-threatening behavior toward and unwanted
6 touching of PLAINTIFF during training sessions [FAC, p. 27, ¶101; pp. 30-31, ¶¶112-
7 113];
GROOM repeatedly touched PLAINTIFF in offensive, unwelcome, and inappropriate
8
ways on numerous occasions prior to the August 13, 2021 Assault [FAC, p. 27, ¶99];
9
GROOM engaged in predatory grooming behaviors toward PLAINTIFF [FAC, pp. 16-18,
10
¶¶58-64, pp. 21-22, ¶76];
11 GROOM gained access to PLAINTIFF’s cell phone due to his position as her coach and
12 sent PLAINTIFF unwelcome, offensive, and inappropriate SnapChat and text messages
13 and engaging in phone conversations and FaceTime calls with her of an unwanted intimate
14 and/or sexual nature [FAC, pp. 28-29, ¶¶104 & 106; pp. 34-36, ¶¶131-135];
GROOM assaulted, battered, sexual battered and falsely imprisoned PLAINTIFF on
15
August 13, 2021 at his living quarters in MISSION ROWING’s Executive Director’s
16
backyard (which were provided to him by NAGY as part of their working relationship)
17
after using his authority and influence over PLAINTIFF to order her to come to his home
18 to say goodbye before she left the Santa Ynez area to return to Seattle upon completion of
19 her scheduled training session at MISSION ROWING [FAC, pp. 3-4, ¶¶10–13; pp. 37-40,
20 ¶¶143-163].
As in Mary M., where the California Supreme Court held that a police officer who raped
21
the female plaintiff victim after detaining her for a traffic stop was within the course and scope of
22
his employment, GROOM had authority and control over PLAINTIFF based on his position as her
23
rowing coach, from whom she was required to take instruction and direction as an athlete under
24 his supervision, in conjunction with and pursuant to his employment with MISSION ROWING.
25 A coach’s authority over a minor athlete under his control and supervision, particularly a minor
26 athlete with whom the coach has fostered a close relationship with and groomed for potential
27 abuse, as GROOM did to PLAINTIFF in this case, is akin to the authority a police officer has over
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 9 of 16
a member of the public. Here PLAINTIFF, a minor female athlete under GROOM’s supervision
1
and control, was expected and required to take direction from GROOM. Like the victim in Mary
2
M., PLAINTIFF felt she had to follow GROOM’s instructions and directives or risk him
3
becoming angry and abusive (which he had repeatedly done) and/or refuse to coach her further
4 (which he had repeatedly threatened to do). Although GROOM was not armed or in uniform,
5 based on the longstanding, intimate relationship he had cultivated with PLAINTIFF, GROOM had
6 at least as much (if not more) authority and power over PLAINTIFF than the police officer in
Mary M. who was a stranger to his victim, and whose only contact with the victim prior to driving
7
her to her home in his police car and sexual assaulting her was pulling her over for a traffic stop.
8
Moreover, as in Flores and other cases cited therein, an employee’s intentional torts will
9
be found to be within the course and scope of employment where the risk of tortious
10 injury is inherent in the working environment, or typical of or broadly incidental to the
11 enterprise the employer has undertaken, such that the nature of the employment foreseeably
12 creates the risk than an employee will commit the type of intentional tort for which respondeat
superior liability is sought. Flores, 161 Cal.App.4th at 380. As the California Supreme Court
13
recently ruled in Brown v. USA Taekwondo (2021) 11 Cal. 5th 204, because the risk of sexual
14
abuse of female athletes by their male coaches in a variety of sports in the United States is now
15
widely known and reported, it is foreseeable that such harm may arise from the coaching
16 relationship, and organizations that provide or govern athletic coaching have a duty to protect
17 female athletes from such abuse. See also Doe v. Roman Catholic Archbishop of Los Angeles
th
18 (2021) 70 Cal.App.5 657, 671 (holding it was foreseeable that a minor attending defendant
19 Catholic archdiocese’s catechism classes might be sexually molested by a priest given the reported
prevalence of such abuse, and confirming that where there is a special relationship between the
20
defendant and a minor, the obligation to provide protection and assistance to the minor may
21
include a duty to protect them from third party abuse); cf. Lisa M. v. Henry Mayo Newhall
22 Memorial Hospital (1995) 12 Cal. 4th 291, 300 (“We are not persuaded that the roots of sexual
23 violence and exploitation are in all cases so fundamentally different from those other abhorrent
24 human traits as to allow a conclusion sexual misconduct is per se unforeseeable in the
25 workplace.”) Accordingly, the nature of GROOM’s employment and role as PLAINTIFF’s coach,
and the power and authority that GROOM had over PLAINTIFF given his role as her coach and
26
mentor (which GROOM fostered and shored up by engaging in the grooming activities described
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 10 of 16
in the FAC) created a foreseeable risk that GROOM would have the access, the ability, and the
1
opportunity to, and would, harm PLAINTIFF in the various ways alleged in the FAC. 1
2
Finally, although MISSION ROWING bases its demurrer to these causes of action on the
3
grounds that GROOM committed some of the most egregious acts of assault and battery towards
4 PLAINTIFF at his living quarters away from designated training areas, that fact does not defeat
5 PLAINTIFF’S allegations that GROOM was within the course and scope of his employment with
6 MISSION ROWING in doing so, given that GROOM repeatedly used his authority as
PLAINTIFF’s coach to direct her to come to his home (on MISSION ROWING’s Executive
7
Director’s property) and spend time alone with him there and at other locations away from
8
traditional training sites as part of his coaching and mentoring relationship with PLAINTIFF. This
9
argument also ignores PLAINTIFF’s allegations that GROOM engaged in numerous acts of
10 assault and battery towards her prior to the August 13, 2021 incident at GROOM’s home,
11 including while he was engaged in coaching duties on behalf of MISSION ROWING at various
12 training and competition locations, often while other MISSION ROWING athletes were present.
These allegations support MISSION ROWING’s respondeat superior liability for GROOM’s
13
wrongful actions toward PLAINTIFF on those other occasions prior to the August 13, 2021
14
Assault, and are sufficient to state claims for assault and battery against MISSION ROWING.
15
B. MISSION ROWING Is Liable For GROOM’s Tortious Conduct Towards
16 PLAINTIFF Because it Ratified GROOM’s Wrongful Actions
17 In addition to MISSION ROWING’s liability for GROOM’s assault, battery, sexual
18 battery and false imprisonment of PLAINTIFF based on the doctrine of respondeat superior, the
rowing club is also liable for these claims based on its ratification of GROOM’s tortious actions.
19
As an alternate theory to respondeat superior, an employer may be liable for an employee's
20
tortious act where the employer either authorized the act or subsequently ratified an originally
21 unauthorized tort. Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169-170. The failure to
22 discharge an employee who has committed misconduct may be evidence of ratification. See
23 Baptist at 169-170, citing Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852
24
1
Unlike the cases cited by MISSION ROWING’s holding that sexual abuse was not within the scope of employment
25
where it was committed by persons who did not have a previous close relationship with the victim, in this case the
perpetrator coached and trained PLAINTIFF intensively for over two years, fostered a close relationship with her
26
based on his position and role as her coach, and initiated and required PLAINTIFF to engage in frequent in person,
phone, texting, Snap Chat and social media contact with him as part of her training and mentoring by him, all of
27
which flowed from, and were within the course and scope of, the employment relationship.
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 11 of 16
(reversing summary judgment on employee’s sexual harassment claim where victim alleged that
1
her employer ratified her harassing supervisor’s conduct by failing to investigate or take
2
responsive action and retaining the employee after his wrongful conduct was reported). The
3
theory of ratification is generally applied where an employer fails to investigate or respond to
4 charges that an employee committed an intentional tort, such as assault or battery. Id. Whether an
5 employer has ratified an employee's conduct is generally a factual question. Baptist at 170.
6 As alleged in the FAC, which must be accepted at true in evaluating the sufficiency of
PLAINTIFF’S claims for the purposes of this demurrer, MISSION ROWING ratified GROOM’s
7
injurious actions towards PLAINTIFF by:
8
CAROL NAGY, acting as a director and officer of MISSION ROWING, knowingly hiring
9
and subsequently retaining GROOM as MISSION ROWING’s head coach with full
10 knowledge of GROOM’S prior abusive actions towards athletes he coached as reported to
11 her by those athletes, their families, and other rowing community members (including the
12 December 2014 Complaint to USROWING), and as otherwise known by her, thereby
making it possible for GROOM to have access to and the opportunity to harm
13
PLAINTIFF, and showing a reckless disregard for GROOM’s unfitness to serve as a coach
14
of young female athletes, and for the potential harm that GROOM posed in doing so [FAC,
15
p. 14, ¶46, pp. 15-16, ¶¶50-53];
16 NAGY, acting on behalf of MISSION ROWING, ignoring and failing to take any action to
17 investigate or effectively address GROOM’s known and reported misconduct towards
18 PLAINTIFF during the time he was coaching her, and instead continuing to maintain
19 GROOM’s employment [FAC, p. 26, ¶98, p. 34, ¶¶129-130, p. 40, ¶163];
after becoming aware of GROOM’s assault, battery, sexual battery and false imprisonment
20
of PLAINTIFF on August 13, 2021, NAGY advocating for MISSION ROWING to retain
21
GROOM notwithstanding his shocking conduct (which he admitted to engaging in), and
22 MISSION ROWING maintaining GROOM’s employment and allowing him to continue
23 coaching thereafter [FAC, pp. 43-45, ¶¶181-182 & 185-186]; and
24 NAGY, as a director and officer of MISSION ROWING, reporting to law enforcement
25 officials that PLAINTIFF was to blame for GROOM’s August 13, 2021 assault and
expressing suspicions about and distrust of PLAINTIFF, her mother, and their motives in
26
pressing forward with a criminal investigation of GROOM [FAC p. 45, ¶¶187-188] .
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 12 of 16
These facts are sufficient to establish MISSION ROWING’s ratification of GROOM’s conduct for
1
the purposes of overruling its demurrer to the FAC. See Baptist, 143 Cal.App.4th at 169-170;
2
Murillo, 65 Cal.App.4th at 852.2
3
IV. PLAINTIFF’S THIRD CAUSE OF ACTION FOR SEXUAL HARASSMENT IN
4 VIOLATION OF CIVIL CODE § 51.9 AND FIFTH CAUSE OF ACTION FOR
5 GENDER VIOLENCE IN VIOLATION OF CIVIL CODE § 52.4 AGAINST
MISSION ROWING ARE ADEQUATELY STATED
6
MISSION ROWING contends that PLAINTIFF cannot state a claim against it for sexual
7
harassment under California’s Unruh Act, Civil Code § 51.9 because the decision in Murillo v. Rite
8
Stuff Foods contained dicta that such conduct not was not within the scope of employment as a
9 matter of law [MR Memo, p. 10, ln. 25–p. 11, ln. 7]. Murillo, however, involved different legal
10 claims than this case, was not brought under the Unruh Act, and does not support the granting of
11 MISSION ROWING’s demurrer as to PLAINTIFF’S Third Cause of Action for sexual harassment
in violation of Civil Code § 51.9 in this case.
12
Under Civil Code § 51.9, a person, including a corporation, is liable for sexual harassment
13
where there is a business, service, or professional relationship between plaintiff and defendant, or
14
defendant holds themselves out as being able to help plaintiff establish such a relationship with
15 defendant or a third party, such as the relationship between a teacher and student, or one that is
16 substantially similar; defendant has made sexual advances, solicitations, sexual requests, demands
17 for sexual compliance by plaintiff, or engaged in other verbal, visual, or physical conduct of a
18 sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe;
and plaintiff has suffered economic loss, disadvantage, or personal injury, including emotional
19
distress as a result thereof. Id. See also 2 CACI 3065. PLAINTIFF has adequately alleged facts in
20
support of each of these elements of a cause of action under Civil Code § 51.9. [FAC, pp. 39-40,
21 ¶161, pp. 48-49, ¶205-211.]
22
2
23 Although MISSION ROWING argues that various allegations that were added to and in one instance omitted from
the FAC regarding its ratification of GROOM’s actions should not be considered because PLAINTIFF is bound by the
24 original complaint, these allegations are not inconsistent with facts alleged in the original complaint.Moreover, a party
is allowed to correct a pleading by omitting an allegation made as a result of mistake or inadvertence, which is what
25 occurred here. [Daniels Decl., p. 2, par. 5.] See Panterra GP, Inc. v. Sup. Ct. of Kern County (2022) 74 Cal.App.5th
697, 711. MISSION ROWING’s contention that allegations in the FAC that reflect these changes are false “is
26 untenable at the pleadings stage.” Id. at 710. “It is for a finder of fact to consider all the evidence to determine whether
the complaint's allegations are true. That determination cannot be made at the pleadings stage. Id. at 712.
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 13 of 16
In C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, a female plaintiff and
1
class members asserted a cause of action for sexual harassment in violation of Civil Code § 51.9
2
(and other claims) against defendant medical center based on the allegation that a male certified
3
nursing assistant hired by defendant through a third party employer inappropriately touched,
4 sexually harassed, molested, assaulted, raped and attempted to rape female patients while alone
5 with them, and engaged in similar misconduct toward female employees. On appeal from the trial
6 court’s granting of defendant’s demurrer, the court of appeal reversed and held that, regardless of
whether the medical center was liable for the nursing assistant’s sexual harassment on a
7
respondeat superior theory, the demurrer to the § 51.9 cause of action should have been overruled
8
because plaintiff’s amended complaint contained sufficient allegations that defendant had ratified
9
the abuser’s sexual misconduct by retaining the abuser in its service after learning that he had
10 engaged in various wrongful actions towards female patients and a female employee, which
11 ratification was to support a claim for sexual harassment against the employer under Civil Code §
12 51.9. C.R., 169 Cal.App.4th at 1110-1112.
MISSION ROWING’s contention that PLAINTIFF cannot state a claim against it for
13
gender violence under Civil Code § 52.4 as alleged in PLAINTIFF’s Fifth Cause of Action is
14
equally unsupportable. Civil Code § 52.4 provides that a person may bring a civil action for
15
damages against any responsible party (which would include MISSION ROWING on a
16 respondeat superior or ratification theory as discussed above) resulting from “gender violence.”
17 The statute defines gender violence as:
18 (1) one or more acts that would constitute a criminal offense under state law that has as an
19 element the use, attempted use, or threatened use of physical force against the person or property
of another, committed at least in part based on the gender of the victim, whether or not those acts
20
have resulted in criminal complaints, charges, prosecution, or conviction; or
21
(2) a physical intrusion or physical invasion of a sexual nature under coercive conditions.
22 Although MISSION ROWING asserts that PLAINTIFF has not stated a claim for gender
23 violence under § 52.4 because she has not adequately alleged that GROOM’s wrongful actions
24 towards her were based at least in part on her gender [MR Memo, p. 11, ln. 8-15], PLAINTIFF’s
25 allegations in this Fifth Causes of Action state exactly that. [FAC, pp. 50-51, ¶¶213-216.]
Moreover, this cause of action incorporates the factual portions of the FAC, which allege in their
26
substance, content, and context that GROOM’s injurious conduct towards PLAINTIFF were
27
committed at least in part based on her sex/gender and GROOM’s sexual interest in her, and that
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 14 of 16
GROOM’s offensive actions constituted a physical intrusion and physical invasion of a sexual
1
nature under coercive conditions, all of which constitute, and state a claim for, gender violence
2
under § 52.4. Based on the above authority, PLAINTIFF has adequately alleged facts in support
3
of her Third and Fifth Causes of Action against MISSION ROWING.
4 V. PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS IS ADEQUATELY STATED
5
6 MISSION ROWING demurs to PLAINTIFF’s Seventh Cause of Action for Intentional
Infliction of Emotional Distress (“IIED”) on the grounds that the FAC “fails to state facts sufficient to
7
constitute a cause of action” and it “is barred by statutory and case law,” but offers no specifics or
8
applicable authority with respect to either of these contentions. MISSION ROWING further contends
9 that GROOM’s conduct towards PLAINTIFF that gives rise to this claim (as alleged in the FAC)
10 was outside the scope of his employment.
11 The essential factual elements of a claim for IIED are that defendant’s conduct was
12 outrageous; defendant intended to cause plaintiff emotional distress, or acted with reckless
disregard of the probability that would occur, knowing that plaintiff was present when the conduct
13
occurred; plaintiff suffered severe emotional distress; and defendant’s conduct was a substantial
14
factor in causing the plaintiff’s severe emotional distress. See 1 CACI 1600. The FAC adequately
15 states all of the above-described elements of a claim for IIED. [FAC, pp. 55-56, ¶¶236-241.]
16 Moreover, as explained above, the FAC adequately alleges with specific supporting facts
17 that GROOM was acting within the scope of his employment in engaging in the various
18 outrageous actions towards PLAINTIFF described therein, and that MISSION ROWING ratified
GROOM’s tortious conduct, thereby establishing two separate legal bases for MISSION
19
ROWING’s liability for GROOM’s wrongful actions.
20
Finally, MISSION ROWING’s reliance on Delfino v. Agilent Technologies, Inc. (2006) 145
21 Cal.App.4th 790, is misplaced. In Delfino, unlike here, the sender of the threatening emails that
22 harmed the plaintiffs, an employee of defendant Internet service provider, had no prior professional or
23 employment-related relationship with the plaintiffs, and there was no evidence of any connection
between the perpetrator’s actions and/or the content of his message and his employment that might
24
otherwise support a finding that he was acting within the scope of his employment in engaging in such
25
actions. Additionally, unlike in this case, there was insufficient evidence of ratification by the
26 perpetrator’s employer, which immediately upon learning of the offensive conduct placed the
27 employee on administrative leave and terminated him without allowing him to engage in any further
28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 15 of 16
duties. Accordingly, the Delfino court’s holding that the employer could not be held liable for its
1
employee’s tortious conduct cannot is distinguishable from the facts of the present case in several key
2
respects, and does not support the granting of a demurrer to PLAINTIFF’s Seventh Cause of Action.
3 VI. CONCLUSION
4 For all these reasons, PLAINTIFF respectfully requests that the Court overrule MISSION
5 ROWING’S demurrer in its entirety. If the Court is inclined to grant the demurrer as to one or
6 more challenged causes of action, PLAINTIFF respectfully requests that the Court provide
PLAINTIFF with leave to amend the FAC to specifically address any deficiencies the Court may
7
find.
8
9 Dated: September 28, 2023 /s/ Janean Acevedo Daniels_____
Janean Acevedo Daniels
10 Attorney for PLAINTIFF KATHERINE
LORD-KRAUSE
11
12
13
14
15
16
17
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19
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28
PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER
Page 16 of 16
DECLARATION OF JANEAN ACEVEDO DANIELS
1
2 I, Janean Acevedo Daniels, declare as follows:
1. I am the attorney of record herein for PLAINTIFF KATHERINE LORD-KRAUSE
3
(“PLAINTIFF”) in the above-entitled action. As such, I have personal knowledge of the matters
4
stated herein and if called as a witness, could competently testify thereto.
5
2. On July 12, 2023, I received via email a letter of the same date from MISSION
6 ROWING’s counsel, John Eck, regarding MISSION ROWING’s efforts to meet and confer with
7 my office in advance of filing a demurrer to PLAINTIFF’S original Complaint filed on April 25,
8 2023. After receiving the meet and confer letter, my office filed on behalf of PLAINTIFF a First
Amended Complaint on August 4, 2023 that addressed the purported shortcomings in the original
9
Complaint, and made other changes.
10
3. After the FAC was filed, MISSION ROWING’s counsel failed to meet and confer
11
regarding any asserted deficiencies in the FAC prior to filing its demurrer thereto as required by
12 Code of Civil Procedure § 430.41(f). Although MISSION ROWING’s counsel avers in his
13 declaration in support of MISSION ROWING’s demurrer that “After August 3, 2023, Ms. Daniels
14 and I spoke on the phone regarding Mission Rowing file a demurrer to the First Amended
15 Complaint. We were unable to reach an agreement on further revisions to the First Amended
Complaint; therefore, Mission Rowing is filing this demurrer,” this is not accurate. After the FAC
16
was filed, I had several phone conversations Mr. Eck regarding various matters, including his
17
intention to file an Answer to the FAC on behalf of MISSION ROWING. At no time during these
18 conversations did Mr. Eck state his intention to file a demurrer to the FAC on behalf of MISSION
19 ROWING, identify any specific deficiencies in the FAC, or cite any legal authority supporting any
20 contention that the FAC was deficient in any manner.
21 4. In our last telephone conversation prior to MISSION ROWING filing its demurrer
to the FAC, which occurred on September 8, 2023, Mr. Eck asked for extension to file MISSION
22
ROWING’s responsive pleading until September 8, 2023, which I agreed to provide on behalf of
23
PLAINTIFF. Mr. Eck then stated that he intended to file an Answer to the FAC, although he
24
noted there was a small chance he might file a demurrer based on the instructions he received from
25 his client’s insurance carrier’s representative. At no point during the September 8, 2023 phone
26 discussion or any of our other conversations following the filing of the FAC did Mr. Eck meet and
27 confer regarding any alleged deficiencies of the FAC as required under Code of Civil Procedure §
28 DECLARATION OF JANEAN ACEVEDO DANIELS
Page 1 of 2
430.41(f), nor did Mr. Eck do so in any written correspondence sent to our office following filing
1
of the FAC.
2
5. PLAINTIFF’S original Complaint contained the following allegation at paragraph
3 170:
4
170. The [MISSION ROWING] coach further informed PLAINTIFF’S mother that in
5
response to GROOM’s admission of wrongdoing, he, NAGY, and another member of
6 MISSION ROWING’s executive board had an “emergency meeting” on or after August
7 16, 2021, and that GROOM was reportedly “removed” from his coaching duties with
8 MISSION thereafter.
9 After filing the FAC, PLAINTIFF learned that that, contrary to the MISSION ROWING coach’s
statement that GROOM had purportedly been “removed” from his coaching duties with MISSION
10
ROWING once the organization had become aware of GR
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 MISSION ROWING’S 14 public benefit corporation; CONAL DEMURRER GROOM, an individual; CAROL NAGY, an 15 individual; UNITED STATES ROWING HEARING DATE: October 11, 2023 ASSOCIATION, a Pennsylvania nonprofit 16 corporation, and DOES 1-50, inclusive, TIME: 8:30 a.m. DEPT.: SM3 17 DEFENDANTS. Action Filed: April 25, 2023 18 Trial Date: None Set 19 20 21 22 PLAINTIFF KATHERINE LORD-KRAUSE submits the following opposition to 23 DEFENDANT MISSION ROWING’S demurrer to PLAINTIFF’S First Amended Complaint 24 (“FAC”). 25 26 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 1 of 16 TABLE OF CONTENTS 1 2 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 II. THE COURT MUST CONSTRUE THE FIRST AMENDED COMPLAINT 4 LIBERALLY AND OVERRULE THE DEMURRER IF IT APPEARS THAT PLAINTIFF IS ENTITLED TO RELIEF UNDER ANY CIRCUMSTANCES . . 6 5 III. PLAINTIFF’S FIRST CAUSE OF ACTION FOR ASSAULT AND BATTERY, 6 SECOND CAUSE OF ACTION FOR SEXUAL BATTERY, AND SIXTH CAUSE OF ACTION FOR FALSE IMPRISONMENT AGAINST MISSION ROWING ARE 7 ADEQUATELY STATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8 A. MISSION ROWING Is Liable For GROOM’s Tortious Conduct Towards 9 PLAINTIFF Under the Respondeat Superior Doctrine Because GROOM Had Frequent Close Contact With, Control Over and Access to PLAINTIFF Due to 10 His Position and Employment as a MISSION ROWING Coach, Thereby Giving Him the Foreseeable Opportunity to Engage in Such Wrongful Acts, and Was 11 Within the Course and Scope of His Employment in Committing Such Acts . . 6 12 B. MISSION ROWING Is Liable For GROOM’s Tortious Conduct Towards 13 PLAINTIFF Because it Ratified GROOM’s Wrongful Actions . . . . . . . . . . . . 11 14 IV. PLAINTIFF’S THIRD CAUSE OF ACTION FOR SEXUAL HARASSMENT IN VIOLATION OF CIVIL CODE § 51.9 AND FIFTH CAUSE OF ACTION FOR 15 GENDER VIOLENCE IN VIOLATION OF CIVIL CODE § 52.4 AGAINST MISSION ROWING ARE ADEQUATELY STATED . . . . . . . . . . . . . . . . . . . . . . 13 16 17 V. PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS ADEQUATELY STATED . . . . 15 18 VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 2 of 16 TABLE OF AUTHORITIES 1 Cases: 2 Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3 Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040 . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4 Perdue v. Crocker Natl. Bank (1985) 38 Cal.3d 913, 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5 Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 . . . . . . . . . . . . . . 6 6 Dubins v. Regents of Univ. Of Cal. (1994) (1994) 25 Cal. App. 4th 77, 82. . . . . . . . . . . . . . . 6 Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 . . . . . . . . . . . . . . . . . . . . . . 7 7 Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 379 . . . . . . . . . . . . . . . . . . . . . . . 7 8 Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 . . . . . . . . . . . . . . . . . . . . . 8 9 Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 657 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 10 Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 621–624 . . . . . . . . . . . . . . . . . . . 8 11 Fields v. Sanders (1947) 29 Cal.2d 834, 841–842 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 12 Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202 . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10 Brown v. USA Taekwondo (2021) 11 Cal. 5th 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13 Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 671 . . . . . . . 10 14 Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4th 291, 300 . . . . . . . . . 10 15 Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169-170 . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 16 Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852 . . . . . . . . . . . . . . . . 11, 12, 13 17 Panterra GP, Inc. v. Sup. Ct. of Kern County (2022) 74 Cal.App.5th 697, 711 . . . . . . . . . . . . 13 18 C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094 . . . . . . . . . . . . . . . . . . . . . . . . . 14 19 Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790 . . . . . . . . . . . . . . . . . . . . . . . . 15 Statutes: 20 Code of Civil Procedure § 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 21 Civil Code § 51.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 22 Civil Code § 52.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 23 Other: 24 2 Judicial Council of California Civil Jury Instructions 3700 . . . . . . . . . . . . . . . . . . . . . . . . . . 7 25 2 Judicial Council of California Civil Jury Instructions 3722 . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2 Judicial Council of California Civil Jury Instructions 3065 . . . . . . . . . . . . . . . . . . . . . . . . . . 13 26 1 Judicial Council of California Civil Jury Instructions 1600 . . . . . . . . . . . . . . . . . . . . . . . . . . 15 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 3 of 16 I. INTRODUCTION 1 From May 2019 until the night of August 13, 2021, when PLAINTIFF was falsely 2 imprisoned, assaulted, battered, and sexually battered by MISSION ROWING employee and 3 coach CONAL GROOM in living quarters provided to him by MISSION ROWING’s Executive 4 Director, CAROL NAGY, in the backyard of her home, PLAINTIFF was a minor athlete and 5 member of MISSION ROWING’s rowing club. Throughout the time that PLAINTIFF rowed 6 with the club, MISSION ROWING, NAGY and GROOM had special relationships with PLAINTIFF as a minor athlete entrusted to their care and supervision which gave rise to a duty of 7 care towards PLAINTIFF. 8 Notwithstanding their duty of care, MISSION ROWING and NAGY knowingly, 9 recklessly, and negligently allowed GROOM to engage in an ongoing course of abusive, 10 offensive, and harmful actions towards PLAINTIFF, including: 11 A) becoming angry, belligerent, and verbally abusive towards PLAINTIFF, yelling and 12 screaming at her, and calling her a “bitch” and a “slut” during workouts and at rowing competitions, causing her to feel frightened, demeaned, anxious, and upset, and to 13 experience panic attacks [FAC, p. 22, ¶77; p. 26, ¶96; p. 30, ¶¶110-111; p. 33, ¶125; p. 34, 14 ¶128; pp. 31-32, ¶¶117-118]; 15 B) engaging in violent and threatening behavior toward PLAINTIFF during training sessions, 16 including placing his hands around her throat in chokeholds and grabbing a rowing 17 machine handle out of PLAINTIFF’s hands while she was training on the machine and 18 throwing it so hard against the machine cage that it broke, then screaming at her [FAC, p. 19 27, ¶101; pp. 30-31, ¶¶112-113]; C) repeatedly touching PLAINTIFF in offensive, unwelcome, and inappropriate ways on 20 numerous occasions prior to the August 13, 2021 Assault, including frequent unwanted 21 touching of various parts of her body, backrubs, and full body hugs [FAC, p. 27, ¶99]; 22 D) engaging in predatory grooming behaviors toward PLAINTIFF that often precede sexual 23 abuse [FAC, p. 16, ¶58 – p. 18, ¶64; pp. 21-22, ¶76]; 24 E) gaining access to PLAINTIFF’s cell phone due to his position as her rowing coach and 25 sending PLAINTIFF unwelcome, offensive, and inappropriate SnapChat and text messages and engaging in phone conversations and FaceTime calls with PLAINTIFF of an unwanted 26 intimate and/or sexual nature [FAC, pp. 28-29, ¶¶104 & 106; pp. 34-36, ¶¶131-135]; 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 4 of 16 F) intruding and inserting himself into PLAINTIFF’s sexually private matters by 1 admonishing her not to end up pregnant or have sex with her boyfriend, and questioning 2 her about her use of birth control and sex with her boyfriend [FAC, p. 31, ¶116]; 3 G) On August 11, 2021, two days before the August 13, 2021 Assault, texting PLAINTIFF, “I 4 woke up so excited to row with you!” then later that day, anticipating that she would be 5 leaving Santa Ynez and returning to Seattle following her scheduled rowing training, 6 texting PLAINTIFF, “Can we make dinner together one last time? Friday? Or something?” and adding that he wanted “another week” with her [FAC, p. 36, ¶140]. 7 8 GROOM’S harmful and offensive actions toward PLAINTIFF throughout the two-plus 9 year period that he coached, trained, groomed, and cultivated a harmful and inappropriate and intimate relationship with her culminated in GROOM using his power, influence and authority as 10 PLAINTIFF’S coach, mentor, and professed “friend” who “loved her” to order her on August 13, 11 2021 to come to his residence on MISSION ROWING Executive Director CAROL NAGY’s 12 property, which NAGY had provided for GROOM’S unsupervised use, where he detained and 13 assaulted her [FAC, pp. 3-4, ¶¶10–13; pp. 37-40, ¶¶143-163]. 14 As alleged in the FAC, GROOM engaged in these actions--which were engendered by 15 events and conditions relating to his coaching duties and tasks as an employee of MISSION 16 ROWING, and which were inextricably intertwined with his role and position as PLAINTIFF’s coach and mentor--in the course and scope of his employment with MISSION ROWING. [FAC, 17 p. 2, ¶5, p. 4 ¶12, pp. 17-18, ¶61, pp. 19-21, ¶¶69-73, pp. 21-23, ¶¶75-81, p. 24, ¶¶84-86, p. 25, 18 ¶¶90-91, p. 27, ¶¶99, 101 & 103, p. 28, ¶104, pp. 28-29, ¶106, p. 33, ¶¶124-127, pp. 34-36, ¶¶131- 19 142, p. 37, ¶¶143-145 & 148-149, p. 38-40, ¶¶150-163]. 20 As further alleged, MISSION ROWING ratified GROOM’s injurious actions towards 21 PLAINTIFF by hiring and retaining GROOM as an employee with knowledge of his abusive 22 actions towards athletes he had coached before PLAINTIFF, and towards PLAINTIFF herself; by failing to investigate or address GROOM’s inappropriate actions towards athletes under his 23 supervision and known, reported misconduct towards PLAINTIFF while he was coaching her; by 24 MISSION ROWING’s officer and director NAGY advocating for the club to retain GROOM after 25 his reported and admitted assault of PLAINTIFF on August 13, 2021; and by MISSION ROWING 26 maintaining GROOM’s employment and allowing him to continue coaching thereafter [FAC, pp. 27 3-4, ¶¶10–13; p. 18, ¶62, p. 26, ¶98, p. 34, ¶130, p. 40, ¶163, pp. 42-45, ¶¶176-189.] 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 5 of 16 Based on these allegations, which must be accepted as true for the purpose of this 1 demurrer, PLAINTIFF has adequately stated facts supporting the causes of action against 2 MISSION ROWING arising from GROOM’s tortious conduct based on MISSION ROWING’s 3 ratification thereof, and based on the organization’s respondeat superior liability as GROOM’s 4 employer. For these reasons, the demurrer should be denied. 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 7 PLAINTIFF filed her original Complaint on April 25, 2023. After PLAINTIFF’S counsel 8 received a meet and confer letter from MISSION ROWING’s counsel on July 12, 2023 regarding 9 alleged deficiencies in the original Complaint, PLAINTIFF filed a First Amended Complaint that 10 addressed the purported shortcomings in the original Complaint, and made other changes. After the FAC was filed, MISSION ROWING’s counsel failed to meet and confer regarding any 11 asserted deficiencies in the FAC prior to filing its demurrer thereto as required by Code of Civil 12 Procedure § 430.41(f). [See Declaration of Janean Acevedo Daniels, pp. 1-2, ¶¶2-4.] 13 In ruling on MISSION ROWING’s demurrer to the FAC, the court is required to liberally 14 construe PLAINTIFF’S First Amended Complaint “with a view to substantial justice between the 15 parties,” Code Civ. Pro. § 452; Stevens v. Sup.Ct. (1999) 75 Cal.App.4th 594, 601. The court must 16 accept as true all material facts properly pleaded, Blatty v. New York Times Co. (1986) 42 Cal.3d 17 1033, 1040, and construe all facts in the light least favorable to defendant. Perdue v. Crocker Natl. Bank (1985) 38 Cal.3d 913, 922. Where allegations are subject to different reasonable 18 interpretations, the court must draw "inferences favorable to the plaintiff, not the defendant." 19 Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238. It is error to sustain a 20 demurrer if it appears that the plaintiff is entitled to any relief under the circumstances pleaded. 21 Dubins v. NAGY of Univ. Of Cal. (1994) 25 Cal. App. 4th 77, 82. Under these standards, 22 MISSION ROWING’s demurrer should be overruled in all respects. 23 III. PLAINTIFF’S FIRST CAUSE OF ACTION FOR ASSAULT AND BATTERY, SECOND CAUSE OF ACTION FOR SEXUAL BATTERY, AND SIXTH CAUSE 24 OF ACTION FOR FALSE IMPRISONMENT AGAINST MISSION ROWING ARE ADEQUATELY STATED 25 A. MISSION ROWING Is Liable For GROOM’s Tortious Conduct Towards 26 PLAINTIFF Under the Respondeat Superior Doctrine Because GROOM Had 27 Frequent Close Contact With, Control Over and Access to PLAINTIFF Due to His Position and Employment as a MISSION ROWING Coach, Thereby Giving Him the 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 6 of 16 Foreseeable Opportunity to Engage in Such Wrongful Acts, and Was Within the 1 Course and Scope of His Employment in Committing Such Acts 2 As MISSION ROWING acknowledges in its demurrer, it may properly be held liable for 3 GROOM’s injurious actions toward PLAINTIFF as alleged in First, Second and Sixth Causes of 4 action if GROOM was within the course and scope of his employment with MISSION ROWING 5 when he engaged in the conduct giving rise to these claims. [MISSION ROWING Memorandum 6 (“MR Memo”), p. 8, lns. 16-18.] See Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967; 2 Judicial Council of California Civil Jury Instructions (“CACI”) 3700. Because the FAC 7 alleges that GROOM’s abusive actions towards PLAINTIFF were made possible by and arose 8 from his position and employment with MISSION ROWING as PLAINTIFF’s coach and mentor, 9 and because GROOM’S injurious acts were inextricably intertwined with the close coaching 10 relationship he fostered with PLAINTIFF and the power and influence he had over her as her 11 coach, GROOM’S actions were in fact within the course and scope of his employment. 12 Although MISSION ROWING contends that GROOM was not acting within the course and scope of his employment when he assaulted, battered, and sexually battered PLAINTIFF on 13 August 13, 2021 because his conduct was purportedly unauthorized and unexpected by his 14 employer [MR Memo, p. 8, ln. 6–p. 9, ln. 9], this contention is unsupportable for several reasons. 15 First, an employee's unauthorized conduct may be within the scope of employment if it 16 was committed in the course of a series of acts authorized by the employer, or the conduct arose 17 from a risk inherent in or created by the enterprise. 2 CACI 3722. Moreover, an employee's 18 wrongful or criminal conduct may be within the scope of employment even if it breaks an 19 employer’s rule or does not benefit the employer. Id.; Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 379 (an employee's willful, malicious and even criminal torts may fall within 20 scope of employment for purposes of respondeat superior liability even though employer has not 21 authorized employee to commit crimes or intentional torts). 22 In Flores v. AutoZone West, the court of appeal reversed summary judgment for the 23 defendant employer auto parts store and held that its employee’s assault and battery of a customer 24 with a pipe stemming from an interaction with the customer could be a predictable risk of retail 25 employment for purposes of respondeat superior liability. Id., 161 Cal.App.4th 373, 379–384. The court reviewed other cases discussing employer liability for employee’s intentional torts and 26 concluded that the store employee’s attack of the customer was an outgrowth of the employee's 27 work because the altercation arose from the employee’s performance of his duties, and “his entire 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 7 of 16 association” with the victim arose out of his employment. Id. at 161 Cal.App.4th 379–380. See 1 also Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 (Budget Rent-A-Car 2 vicariously liable when customer was severely beaten by employee following a dispute about 3 amount of deposit required); Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 657 (employer 4 building contractor was vicariously liable for employee’s assault and battery when employee 5 threw a hammer at another contractor’s employee after dispute relating to how employee was 6 doing his job; employee’s violent, unauthorized actions were found to be within scope of employment); Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 621–624 (after-hours 7 battery of general contractor’s employees by subcontractor’s employees on jobsite was within 8 scope of employment where employees often socialized after work and dispute arose in part over 9 rights and duties of employees); Fields v. Sanders (1947) 29 Cal.2d 834, 841–842 (employee 10 truckdriver who assaulted victim during traffic mishap dispute was within scope of employment). 11 Here, as in these cases, GROOM’s association with and access to PLAINTIFF arose out of 12 his employment with MISSION ROWING and his position as PLAINTIFF’s coach. Many of GROOM’s abusive actions toward PLAINTIFF occurred while he was coaching her, both during 13 scheduled workouts, and during coaching/mentoring sessions he arranged with her outside of 14 scheduled practices times (either in person or by phone or video communication). The fact that 15 GROOM’s particularly egregious actions towards PLAINTIFF on August 13, 2021 occurred at his 16 home in the evening hours does not bring those actions outside the scope of GROOM’s 17 employment, given that he frequently engaged in coaching activities with PLAINTIFF during 18 evening and other off hours at his residence, at other locations, and via phone or video contact. 19 See Rodgers, 50 Cal.App.3d at 621–62. Finding an employee’s intentional tort to be within the course and scope of their 20 employment is particularly appropriate where the employee has been vested with authority over 21 their victim and their wrongful actions stemmed from the employee’s use or misuse of their 22 authority, such as the authority that a police officer has over members of the public. See Mary M. 23 v. City of Los Angeles (1991) 54 Cal. 3d 202 (holding a jury could reasonably conclude that a 24 police officer who detained plaintiff in a traffic stop, ordered her into his police car, drove her 25 home and raped her was acting within the scope of his employment, and his employer could be found vicariously liable for the officer’s misuse of his job-created authority). 26 In this case, GROOM had access to and authority over PLAINTIFF based on his position 27 and employment by MISSION ROWING as her rowing coach, and his abusive actions as alleged 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 8 of 16 in the First, Second and Sixth Causes of Action were inextricably intertwined with that authority, 1 and his position and employment. In particular: 2 GROOM angrily berated, yelled and screamed at, and verbally abused PLAINTIFF during 3 workouts and at rowing competitions [FAC, p. 22, ¶77; p. 26, ¶96; p. 30, ¶¶110-111; p. 33, 4 ¶125; p. 34, ¶128; pp. 31-32, ¶¶117-118]; 5 GROOM engaged in violent and physically-threatening behavior toward and unwanted 6 touching of PLAINTIFF during training sessions [FAC, p. 27, ¶101; pp. 30-31, ¶¶112- 7 113]; GROOM repeatedly touched PLAINTIFF in offensive, unwelcome, and inappropriate 8 ways on numerous occasions prior to the August 13, 2021 Assault [FAC, p. 27, ¶99]; 9 GROOM engaged in predatory grooming behaviors toward PLAINTIFF [FAC, pp. 16-18, 10 ¶¶58-64, pp. 21-22, ¶76]; 11 GROOM gained access to PLAINTIFF’s cell phone due to his position as her coach and 12 sent PLAINTIFF unwelcome, offensive, and inappropriate SnapChat and text messages 13 and engaging in phone conversations and FaceTime calls with her of an unwanted intimate 14 and/or sexual nature [FAC, pp. 28-29, ¶¶104 & 106; pp. 34-36, ¶¶131-135]; GROOM assaulted, battered, sexual battered and falsely imprisoned PLAINTIFF on 15 August 13, 2021 at his living quarters in MISSION ROWING’s Executive Director’s 16 backyard (which were provided to him by NAGY as part of their working relationship) 17 after using his authority and influence over PLAINTIFF to order her to come to his home 18 to say goodbye before she left the Santa Ynez area to return to Seattle upon completion of 19 her scheduled training session at MISSION ROWING [FAC, pp. 3-4, ¶¶10–13; pp. 37-40, 20 ¶¶143-163]. As in Mary M., where the California Supreme Court held that a police officer who raped 21 the female plaintiff victim after detaining her for a traffic stop was within the course and scope of 22 his employment, GROOM had authority and control over PLAINTIFF based on his position as her 23 rowing coach, from whom she was required to take instruction and direction as an athlete under 24 his supervision, in conjunction with and pursuant to his employment with MISSION ROWING. 25 A coach’s authority over a minor athlete under his control and supervision, particularly a minor 26 athlete with whom the coach has fostered a close relationship with and groomed for potential 27 abuse, as GROOM did to PLAINTIFF in this case, is akin to the authority a police officer has over 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 9 of 16 a member of the public. Here PLAINTIFF, a minor female athlete under GROOM’s supervision 1 and control, was expected and required to take direction from GROOM. Like the victim in Mary 2 M., PLAINTIFF felt she had to follow GROOM’s instructions and directives or risk him 3 becoming angry and abusive (which he had repeatedly done) and/or refuse to coach her further 4 (which he had repeatedly threatened to do). Although GROOM was not armed or in uniform, 5 based on the longstanding, intimate relationship he had cultivated with PLAINTIFF, GROOM had 6 at least as much (if not more) authority and power over PLAINTIFF than the police officer in Mary M. who was a stranger to his victim, and whose only contact with the victim prior to driving 7 her to her home in his police car and sexual assaulting her was pulling her over for a traffic stop. 8 Moreover, as in Flores and other cases cited therein, an employee’s intentional torts will 9 be found to be within the course and scope of employment where the risk of tortious 10 injury is inherent in the working environment, or typical of or broadly incidental to the 11 enterprise the employer has undertaken, such that the nature of the employment foreseeably 12 creates the risk than an employee will commit the type of intentional tort for which respondeat superior liability is sought. Flores, 161 Cal.App.4th at 380. As the California Supreme Court 13 recently ruled in Brown v. USA Taekwondo (2021) 11 Cal. 5th 204, because the risk of sexual 14 abuse of female athletes by their male coaches in a variety of sports in the United States is now 15 widely known and reported, it is foreseeable that such harm may arise from the coaching 16 relationship, and organizations that provide or govern athletic coaching have a duty to protect 17 female athletes from such abuse. See also Doe v. Roman Catholic Archbishop of Los Angeles th 18 (2021) 70 Cal.App.5 657, 671 (holding it was foreseeable that a minor attending defendant 19 Catholic archdiocese’s catechism classes might be sexually molested by a priest given the reported prevalence of such abuse, and confirming that where there is a special relationship between the 20 defendant and a minor, the obligation to provide protection and assistance to the minor may 21 include a duty to protect them from third party abuse); cf. Lisa M. v. Henry Mayo Newhall 22 Memorial Hospital (1995) 12 Cal. 4th 291, 300 (“We are not persuaded that the roots of sexual 23 violence and exploitation are in all cases so fundamentally different from those other abhorrent 24 human traits as to allow a conclusion sexual misconduct is per se unforeseeable in the 25 workplace.”) Accordingly, the nature of GROOM’s employment and role as PLAINTIFF’s coach, and the power and authority that GROOM had over PLAINTIFF given his role as her coach and 26 mentor (which GROOM fostered and shored up by engaging in the grooming activities described 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 10 of 16 in the FAC) created a foreseeable risk that GROOM would have the access, the ability, and the 1 opportunity to, and would, harm PLAINTIFF in the various ways alleged in the FAC. 1 2 Finally, although MISSION ROWING bases its demurrer to these causes of action on the 3 grounds that GROOM committed some of the most egregious acts of assault and battery towards 4 PLAINTIFF at his living quarters away from designated training areas, that fact does not defeat 5 PLAINTIFF’S allegations that GROOM was within the course and scope of his employment with 6 MISSION ROWING in doing so, given that GROOM repeatedly used his authority as PLAINTIFF’s coach to direct her to come to his home (on MISSION ROWING’s Executive 7 Director’s property) and spend time alone with him there and at other locations away from 8 traditional training sites as part of his coaching and mentoring relationship with PLAINTIFF. This 9 argument also ignores PLAINTIFF’s allegations that GROOM engaged in numerous acts of 10 assault and battery towards her prior to the August 13, 2021 incident at GROOM’s home, 11 including while he was engaged in coaching duties on behalf of MISSION ROWING at various 12 training and competition locations, often while other MISSION ROWING athletes were present. These allegations support MISSION ROWING’s respondeat superior liability for GROOM’s 13 wrongful actions toward PLAINTIFF on those other occasions prior to the August 13, 2021 14 Assault, and are sufficient to state claims for assault and battery against MISSION ROWING. 15 B. MISSION ROWING Is Liable For GROOM’s Tortious Conduct Towards 16 PLAINTIFF Because it Ratified GROOM’s Wrongful Actions 17 In addition to MISSION ROWING’s liability for GROOM’s assault, battery, sexual 18 battery and false imprisonment of PLAINTIFF based on the doctrine of respondeat superior, the rowing club is also liable for these claims based on its ratification of GROOM’s tortious actions. 19 As an alternate theory to respondeat superior, an employer may be liable for an employee's 20 tortious act where the employer either authorized the act or subsequently ratified an originally 21 unauthorized tort. Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169-170. The failure to 22 discharge an employee who has committed misconduct may be evidence of ratification. See 23 Baptist at 169-170, citing Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852 24 1 Unlike the cases cited by MISSION ROWING’s holding that sexual abuse was not within the scope of employment 25 where it was committed by persons who did not have a previous close relationship with the victim, in this case the perpetrator coached and trained PLAINTIFF intensively for over two years, fostered a close relationship with her 26 based on his position and role as her coach, and initiated and required PLAINTIFF to engage in frequent in person, phone, texting, Snap Chat and social media contact with him as part of her training and mentoring by him, all of 27 which flowed from, and were within the course and scope of, the employment relationship. 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 11 of 16 (reversing summary judgment on employee’s sexual harassment claim where victim alleged that 1 her employer ratified her harassing supervisor’s conduct by failing to investigate or take 2 responsive action and retaining the employee after his wrongful conduct was reported). The 3 theory of ratification is generally applied where an employer fails to investigate or respond to 4 charges that an employee committed an intentional tort, such as assault or battery. Id. Whether an 5 employer has ratified an employee's conduct is generally a factual question. Baptist at 170. 6 As alleged in the FAC, which must be accepted at true in evaluating the sufficiency of PLAINTIFF’S claims for the purposes of this demurrer, MISSION ROWING ratified GROOM’s 7 injurious actions towards PLAINTIFF by: 8 CAROL NAGY, acting as a director and officer of MISSION ROWING, knowingly hiring 9 and subsequently retaining GROOM as MISSION ROWING’s head coach with full 10 knowledge of GROOM’S prior abusive actions towards athletes he coached as reported to 11 her by those athletes, their families, and other rowing community members (including the 12 December 2014 Complaint to USROWING), and as otherwise known by her, thereby making it possible for GROOM to have access to and the opportunity to harm 13 PLAINTIFF, and showing a reckless disregard for GROOM’s unfitness to serve as a coach 14 of young female athletes, and for the potential harm that GROOM posed in doing so [FAC, 15 p. 14, ¶46, pp. 15-16, ¶¶50-53]; 16 NAGY, acting on behalf of MISSION ROWING, ignoring and failing to take any action to 17 investigate or effectively address GROOM’s known and reported misconduct towards 18 PLAINTIFF during the time he was coaching her, and instead continuing to maintain 19 GROOM’s employment [FAC, p. 26, ¶98, p. 34, ¶¶129-130, p. 40, ¶163]; after becoming aware of GROOM’s assault, battery, sexual battery and false imprisonment 20 of PLAINTIFF on August 13, 2021, NAGY advocating for MISSION ROWING to retain 21 GROOM notwithstanding his shocking conduct (which he admitted to engaging in), and 22 MISSION ROWING maintaining GROOM’s employment and allowing him to continue 23 coaching thereafter [FAC, pp. 43-45, ¶¶181-182 & 185-186]; and 24 NAGY, as a director and officer of MISSION ROWING, reporting to law enforcement 25 officials that PLAINTIFF was to blame for GROOM’s August 13, 2021 assault and expressing suspicions about and distrust of PLAINTIFF, her mother, and their motives in 26 pressing forward with a criminal investigation of GROOM [FAC p. 45, ¶¶187-188] . 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 12 of 16 These facts are sufficient to establish MISSION ROWING’s ratification of GROOM’s conduct for 1 the purposes of overruling its demurrer to the FAC. See Baptist, 143 Cal.App.4th at 169-170; 2 Murillo, 65 Cal.App.4th at 852.2 3 IV. PLAINTIFF’S THIRD CAUSE OF ACTION FOR SEXUAL HARASSMENT IN 4 VIOLATION OF CIVIL CODE § 51.9 AND FIFTH CAUSE OF ACTION FOR 5 GENDER VIOLENCE IN VIOLATION OF CIVIL CODE § 52.4 AGAINST MISSION ROWING ARE ADEQUATELY STATED 6 MISSION ROWING contends that PLAINTIFF cannot state a claim against it for sexual 7 harassment under California’s Unruh Act, Civil Code § 51.9 because the decision in Murillo v. Rite 8 Stuff Foods contained dicta that such conduct not was not within the scope of employment as a 9 matter of law [MR Memo, p. 10, ln. 25–p. 11, ln. 7]. Murillo, however, involved different legal 10 claims than this case, was not brought under the Unruh Act, and does not support the granting of 11 MISSION ROWING’s demurrer as to PLAINTIFF’S Third Cause of Action for sexual harassment in violation of Civil Code § 51.9 in this case. 12 Under Civil Code § 51.9, a person, including a corporation, is liable for sexual harassment 13 where there is a business, service, or professional relationship between plaintiff and defendant, or 14 defendant holds themselves out as being able to help plaintiff establish such a relationship with 15 defendant or a third party, such as the relationship between a teacher and student, or one that is 16 substantially similar; defendant has made sexual advances, solicitations, sexual requests, demands 17 for sexual compliance by plaintiff, or engaged in other verbal, visual, or physical conduct of a 18 sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe; and plaintiff has suffered economic loss, disadvantage, or personal injury, including emotional 19 distress as a result thereof. Id. See also 2 CACI 3065. PLAINTIFF has adequately alleged facts in 20 support of each of these elements of a cause of action under Civil Code § 51.9. [FAC, pp. 39-40, 21 ¶161, pp. 48-49, ¶205-211.] 22 2 23 Although MISSION ROWING argues that various allegations that were added to and in one instance omitted from the FAC regarding its ratification of GROOM’s actions should not be considered because PLAINTIFF is bound by the 24 original complaint, these allegations are not inconsistent with facts alleged in the original complaint.Moreover, a party is allowed to correct a pleading by omitting an allegation made as a result of mistake or inadvertence, which is what 25 occurred here. [Daniels Decl., p. 2, par. 5.] See Panterra GP, Inc. v. Sup. Ct. of Kern County (2022) 74 Cal.App.5th 697, 711. MISSION ROWING’s contention that allegations in the FAC that reflect these changes are false “is 26 untenable at the pleadings stage.” Id. at 710. “It is for a finder of fact to consider all the evidence to determine whether the complaint's allegations are true. That determination cannot be made at the pleadings stage. Id. at 712. 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 13 of 16 In C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, a female plaintiff and 1 class members asserted a cause of action for sexual harassment in violation of Civil Code § 51.9 2 (and other claims) against defendant medical center based on the allegation that a male certified 3 nursing assistant hired by defendant through a third party employer inappropriately touched, 4 sexually harassed, molested, assaulted, raped and attempted to rape female patients while alone 5 with them, and engaged in similar misconduct toward female employees. On appeal from the trial 6 court’s granting of defendant’s demurrer, the court of appeal reversed and held that, regardless of whether the medical center was liable for the nursing assistant’s sexual harassment on a 7 respondeat superior theory, the demurrer to the § 51.9 cause of action should have been overruled 8 because plaintiff’s amended complaint contained sufficient allegations that defendant had ratified 9 the abuser’s sexual misconduct by retaining the abuser in its service after learning that he had 10 engaged in various wrongful actions towards female patients and a female employee, which 11 ratification was to support a claim for sexual harassment against the employer under Civil Code § 12 51.9. C.R., 169 Cal.App.4th at 1110-1112. MISSION ROWING’s contention that PLAINTIFF cannot state a claim against it for 13 gender violence under Civil Code § 52.4 as alleged in PLAINTIFF’s Fifth Cause of Action is 14 equally unsupportable. Civil Code § 52.4 provides that a person may bring a civil action for 15 damages against any responsible party (which would include MISSION ROWING on a 16 respondeat superior or ratification theory as discussed above) resulting from “gender violence.” 17 The statute defines gender violence as: 18 (1) one or more acts that would constitute a criminal offense under state law that has as an 19 element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts 20 have resulted in criminal complaints, charges, prosecution, or conviction; or 21 (2) a physical intrusion or physical invasion of a sexual nature under coercive conditions. 22 Although MISSION ROWING asserts that PLAINTIFF has not stated a claim for gender 23 violence under § 52.4 because she has not adequately alleged that GROOM’s wrongful actions 24 towards her were based at least in part on her gender [MR Memo, p. 11, ln. 8-15], PLAINTIFF’s 25 allegations in this Fifth Causes of Action state exactly that. [FAC, pp. 50-51, ¶¶213-216.] Moreover, this cause of action incorporates the factual portions of the FAC, which allege in their 26 substance, content, and context that GROOM’s injurious conduct towards PLAINTIFF were 27 committed at least in part based on her sex/gender and GROOM’s sexual interest in her, and that 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 14 of 16 GROOM’s offensive actions constituted a physical intrusion and physical invasion of a sexual 1 nature under coercive conditions, all of which constitute, and state a claim for, gender violence 2 under § 52.4. Based on the above authority, PLAINTIFF has adequately alleged facts in support 3 of her Third and Fifth Causes of Action against MISSION ROWING. 4 V. PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS ADEQUATELY STATED 5 6 MISSION ROWING demurs to PLAINTIFF’s Seventh Cause of Action for Intentional Infliction of Emotional Distress (“IIED”) on the grounds that the FAC “fails to state facts sufficient to 7 constitute a cause of action” and it “is barred by statutory and case law,” but offers no specifics or 8 applicable authority with respect to either of these contentions. MISSION ROWING further contends 9 that GROOM’s conduct towards PLAINTIFF that gives rise to this claim (as alleged in the FAC) 10 was outside the scope of his employment. 11 The essential factual elements of a claim for IIED are that defendant’s conduct was 12 outrageous; defendant intended to cause plaintiff emotional distress, or acted with reckless disregard of the probability that would occur, knowing that plaintiff was present when the conduct 13 occurred; plaintiff suffered severe emotional distress; and defendant’s conduct was a substantial 14 factor in causing the plaintiff’s severe emotional distress. See 1 CACI 1600. The FAC adequately 15 states all of the above-described elements of a claim for IIED. [FAC, pp. 55-56, ¶¶236-241.] 16 Moreover, as explained above, the FAC adequately alleges with specific supporting facts 17 that GROOM was acting within the scope of his employment in engaging in the various 18 outrageous actions towards PLAINTIFF described therein, and that MISSION ROWING ratified GROOM’s tortious conduct, thereby establishing two separate legal bases for MISSION 19 ROWING’s liability for GROOM’s wrongful actions. 20 Finally, MISSION ROWING’s reliance on Delfino v. Agilent Technologies, Inc. (2006) 145 21 Cal.App.4th 790, is misplaced. In Delfino, unlike here, the sender of the threatening emails that 22 harmed the plaintiffs, an employee of defendant Internet service provider, had no prior professional or 23 employment-related relationship with the plaintiffs, and there was no evidence of any connection between the perpetrator’s actions and/or the content of his message and his employment that might 24 otherwise support a finding that he was acting within the scope of his employment in engaging in such 25 actions. Additionally, unlike in this case, there was insufficient evidence of ratification by the 26 perpetrator’s employer, which immediately upon learning of the offensive conduct placed the 27 employee on administrative leave and terminated him without allowing him to engage in any further 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 15 of 16 duties. Accordingly, the Delfino court’s holding that the employer could not be held liable for its 1 employee’s tortious conduct cannot is distinguishable from the facts of the present case in several key 2 respects, and does not support the granting of a demurrer to PLAINTIFF’s Seventh Cause of Action. 3 VI. CONCLUSION 4 For all these reasons, PLAINTIFF respectfully requests that the Court overrule MISSION 5 ROWING’S demurrer in its entirety. If the Court is inclined to grant the demurrer as to one or 6 more challenged causes of action, PLAINTIFF respectfully requests that the Court provide PLAINTIFF with leave to amend the FAC to specifically address any deficiencies the Court may 7 find. 8 9 Dated: September 28, 2023 /s/ Janean Acevedo Daniels_____ Janean Acevedo Daniels 10 Attorney for PLAINTIFF KATHERINE LORD-KRAUSE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT MISSION ROWING’S DEMURRER Page 16 of 16 DECLARATION OF JANEAN ACEVEDO DANIELS 1 2 I, Janean Acevedo Daniels, declare as follows: 1. I am the attorney of record herein for PLAINTIFF KATHERINE LORD-KRAUSE 3 (“PLAINTIFF”) in the above-entitled action. As such, I have personal knowledge of the matters 4 stated herein and if called as a witness, could competently testify thereto. 5 2. On July 12, 2023, I received via email a letter of the same date from MISSION 6 ROWING’s counsel, John Eck, regarding MISSION ROWING’s efforts to meet and confer with 7 my office in advance of filing a demurrer to PLAINTIFF’S original Complaint filed on April 25, 8 2023. After receiving the meet and confer letter, my office filed on behalf of PLAINTIFF a First Amended Complaint on August 4, 2023 that addressed the purported shortcomings in the original 9 Complaint, and made other changes. 10 3. After the FAC was filed, MISSION ROWING’s counsel failed to meet and confer 11 regarding any asserted deficiencies in the FAC prior to filing its demurrer thereto as required by 12 Code of Civil Procedure § 430.41(f). Although MISSION ROWING’s counsel avers in his 13 declaration in support of MISSION ROWING’s demurrer that “After August 3, 2023, Ms. Daniels 14 and I spoke on the phone regarding Mission Rowing file a demurrer to the First Amended 15 Complaint. We were unable to reach an agreement on further revisions to the First Amended Complaint; therefore, Mission Rowing is filing this demurrer,” this is not accurate. After the FAC 16 was filed, I had several phone conversations Mr. Eck regarding various matters, including his 17 intention to file an Answer to the FAC on behalf of MISSION ROWING. At no time during these 18 conversations did Mr. Eck state his intention to file a demurrer to the FAC on behalf of MISSION 19 ROWING, identify any specific deficiencies in the FAC, or cite any legal authority supporting any 20 contention that the FAC was deficient in any manner. 21 4. In our last telephone conversation prior to MISSION ROWING filing its demurrer to the FAC, which occurred on September 8, 2023, Mr. Eck asked for extension to file MISSION 22 ROWING’s responsive pleading until September 8, 2023, which I agreed to provide on behalf of 23 PLAINTIFF. Mr. Eck then stated that he intended to file an Answer to the FAC, although he 24 noted there was a small chance he might file a demurrer based on the instructions he received from 25 his client’s insurance carrier’s representative. At no point during the September 8, 2023 phone 26 discussion or any of our other conversations following the filing of the FAC did Mr. Eck meet and 27 confer regarding any alleged deficiencies of the FAC as required under Code of Civil Procedure § 28 DECLARATION OF JANEAN ACEVEDO DANIELS Page 1 of 2 430.41(f), nor did Mr. Eck do so in any written correspondence sent to our office following filing 1 of the FAC. 2 5. PLAINTIFF’S original Complaint contained the following allegation at paragraph 3 170: 4 170. The [MISSION ROWING] coach further informed PLAINTIFF’S mother that in 5 response to GROOM’s admission of wrongdoing, he, NAGY, and another member of 6 MISSION ROWING’s executive board had an “emergency meeting” on or after August 7 16, 2021, and that GROOM was reportedly “removed” from his coaching duties with 8 MISSION thereafter. 9 After filing the FAC, PLAINTIFF learned that that, contrary to the MISSION ROWING coach’s statement that GROOM had purportedly been “removed” from his coaching duties with MISSION 10 ROWING once the organization had become aware of GR