Ruling
DOROTHY MATTIA, ET AL. VS VINELAND POST ACUTE, LLC, ET AL.
Jul 26, 2024 |
23BBCV02597
Case Number:
23BBCV02597
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central District
Department B
dorothy mattia,
by and through her Successor-in-Interest, Elizabeth White,
et al.
,
Plaintiffs,
v.
vineland post acute, llc
, dba Vineland Post Acute,
et al.
,
Defendants.
Case No.:
23BBCV02597
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion to compel arbitration; and demurrer and motion to strike
BACKGROUND
A.
Allegations
Plaintiff Dorothy Mattia (Mattia, born May 31, 1928) died on July 6, 2023 and brings this action through her Successor-in-Interest and daughter Plaintiff Elizabeth White (White).
Plaintiffs allege that Defendant Vineland Post Acute, LLC dba Vineland Post Acute (Vineland) provided long-term custodial care as a licensed 24-hour skilled nursing facility located at 10830 Oxnard Street in North Hollywood.
Plaintiffs allege that Defendants Belmont Village Burbank Tenant, LLC dba Belmont Village Burbank and Belmont Three, LLC dba Belmont Village Burbank (collectively Belmont Defendants) provide long-term custodial care and are located at 455 E. Angeleno Avenue in Burbank.
Plaintiffs allege that Mattia was admitted into the Belmont Defendants facility on September 6, 2022 for care and that Belmont Defendants knew at all times that Mattia was a high risk for falls, had limited mobility, and needed a walker with an escort to ambulate.
Plaintiffs allege that Mattia had unwitnessed falls on January 15, 2023 and April 3, 2023, and that she was found on her bathroom floor on May 10, 2023.
Plaintiffs allege that Mattia complained of severe back pain on May 11, 2023 and was sent to the emergency department at Providence St. Joseph Medical Care (Providence) for her bathroom fall and was then admitted to Vineland for rehabilitation on May 17, 2023.
On May 17, 2023, Plaintiff sustained another fall and was admitted to Providence.
On May 18, 2023, Plaintiff had surgery to repair a closed displaced spiral fracture of her right femur.
On July 6, 2023, Plaintiff passed away.
The complaint, filed November 3, 2023, alleges causes of action for: (1) elder abuse (Welfare & Institutions Code §§ 15600
et al.
) against all Defendants; (2) negligence against all Defendants; (3) violation of Resident Rights (Health & Safety Code § 1430(b)) against Vineland; and (4) wrongful death against all Defendants.
B.
Motions on Calendar
On December 12, 2023, Belmont Defendants filed a motion to compel binding arbitration and to stay the Superior Court matter pending the hearing on the petition.
On May 13, 2024, Plaintiff filed an opposition brief.
On July 24, 2024, Belmont Defendants filed a reply brief.
On January 23, 2024, Vineland filed a demurrer and motion to strike portions of the complaint.
On May 13, 2024, Plaintiff filed opposition briefs.
On June 24, 2024, Vineland filed reply briefs.
DISCUSSION RE MOTION TO COMPEL ARBITRATION
Belmont Defendants move to compel arbitration against Plaintiffs and for a stay.
A.
Terms of the Agreement to Arbitration
Belmont Defendants provide the declaration of counsel Jeffrey S. Healey, which includes a copy of the Belmont Village Residence and Services Agreement pertaining to Mattia.
(Mot., Ex. A.)
Appendix I includes the ALTERNATIVE DISPUTE RESOLUTION AGREEMENT, which states in relevant part:
OPTIONAL
Signing this alternate dispute resolution agreement is not a precondition of the admission to or furnishing of services by Belmont Village.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
It is understood that any and all legal claims or civil actions arising out of or relating to care or services provided to you at Belmont Village Burbank, LP (Belmont Village) (including but not limited to claims for negligence, elder or dependent adult abuse/neglect, unfair business practices, refund, breach of contract, intentional tort) & will be determined by good faith mediation and, if necessary, followed by submission to arbitration as provided by:
(1) the Judicial Arbitration and Mediation Services ("Hereinafter referred to JAMS") or (2) pursuant to California law, in the event a court determines that the JAMS does not apply. This includes claims and actions regarding whether the care or services you received, or lack of care or services, was unnecessary or unauthorized or was improperly, negligently, or incompetently rendered. This includes claims or actions against Belmont Village, its employees, agents, directors, or any parent, subsidiary, or affiliate of the Belmont Village (Hereinafter referred to "affiliates"). &
The parties to this Alternative Dispute Resolution Agreement, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a judge or jury, and instead are accepting the use of mediation and arbitration.
&
This Agreement is binding on all parties hereto, including the Resident's representatives, agents, executors, family members, and heirs who execute this Agreement below on the "Resident Representative/Agent Signature" line. Those who execute this Agreement on the "Resident Representative/Agent Signature" line are doing so not only in their representative capacity for the Resident, but also in their individual capacity and thus agree that any claims subject to binding arbitration.
RULES OF ADR
&
The parties agree that California Code of Civil Procedure §1281.2(c) is excluded from this Agreement as the parties mutually desire to have any and all disputes submitted to binding arbitration. The parties do not want any claims not subject to arbitration to impede any and all other claims from being adjudicated in binding arbitration.
&
NOTICE: BY SIGNING THIS ALTERNATIVE DISPUTE RESOLUTION AGREEMENT YOU ARE AGREEING TO HAVE ANY LEGAL CLAIM OR CIVIL ACTION ARISING OUT OF OR RELATING TO YOUR RESIDENCE OR ANY SERVICES RENDERED UNDER THE RSA DECIDED BY NEUTRAL MEDIATION AND ARBITRATION. YOU ARE GIVING UP YOUR RIGHT TO A COURT TRIAL OR JURY.
(Residence and Services Agreement, Appendix I at I-1, I-2, I-3, I-5 [bold in original] [underline added].)
The arbitration agreement is electronically signed by Elizabeth White, Responsible Person for Dorothy Mattia on August 30, 2022.
Under the signature line, the arbitration agreement states:
By virtue of the Resident's consent, instruction and/or durable power of attorney, I hereby
certify I am authorized to act as Resident's agent in executing and delivering this Agreement. If signed by a Legal Representative, the representative certifies that Belmont Village may reasonably rely upon the validity and authority of the representative's signature based upon actual, implied or apparent authority to execute this Agreement as granted by the Resident.
(
Id.
at I-5.)
White electronically signed this portion of the agreement as the Legal Representative.
Belmont Defendants argue that the arbitration agreement should be enforced because White voluntarily signed the agreement on behalf of Mattia and the arbitration agreement stated that it would be binding on all partiesMattia (the resident), her agent/representative White (in her representative and individual capacity), and Belmont Defendants.
Belmont Defendants also argue that the scope of the arbitration agreement covers Plaintiffs claims for elder abuse, negligence, and wrongful death (the 3
rd
cause of action for violation of Resident Rights is alleged against Vineland only).
In opposition, Plaintiffs first argue that the arbitration agreement is invalid as it has not been legally authenticated.
However, Plaintiffs do not deny that White signed the Residence and Services Agreement on Mattia behalf.
While they argue that White did not sign the arbitration agreement, Whites declaration statements denying her signature are refuted by Belmont Defendants evidence in reply as discussed below.
Further, with the reply brief, Belmont Defendants provide the declaration of Mary Jane Rodriguez, who is the Executive Director of Belmont Village Burbank and she states that she is familiar with and oversees resident records and files.
(Rodriguez Decl., ¶1.)
Her declaration includes Whites DocuSign Certificate of Completion and a copy of the Residence and Services Agreement with its Appendices.
As such, the documents have been properly authenticated and will be admissible for the purposes of this motion.
Second, Plaintiffs argue that White did not execute the arbitration agreement.
In her declaration, White states that upon her review the arbitration agreement, she has never received the arbitration agreement to sign and did not sign it electronically.
(White Decl., ¶1.)
She states that the signature in the arbitration agreement is not her signature and believes that the purported signature was done without her consent, knowledge, or authorization.
(
Id.
, ¶2.)
However, White does not deny that she electronically signed the rest of the Residence and Services Agreement.
The Court has reviewed the Residence and Services Agreement and it shows that she electronically signed the Residence and Services Agreement on August 30, 2022 with DocuSign with unique stamp 33BC9A6622DD4BD.
(See Residence and Services Agreement at pp.19-20.)
Appendices A to L are also electronically signed with the same DocuSign ID number/stamp.
(See
id.
, Appendix A at A-4; Appendix B at B-3; Appendix C at C-6; Appendix D at D-7; Appendix E at E-2; Appendix F at F-3; Appendix I at I-5; Appendix J at J-2; Appendix K at K-4; Appendix L at L-1; Appendix N at N-2.)
Other than her declaration, there is no other proof that she did not sign the arbitration agreement or that she did not sign the Residence and Services Agreement or the Appendices with the same electronic signature.
With the reply brief, Belmont Defendants provide Whites emails showing that she requested the lease agreement documents on August 30, 2022 and had sent them over to Juliet Connaughton of Belmont Village.
(See Reply at Ex. A.)
Belmont Defendants also provide the DocuSign Certificate of Completion, showing that White reviewed 70 pages of documents with 25 signatures regarding the RSA for Dorothy Mattia; this document also shows Whites DocuSign signature and the unique stamp/number.
(Reply at Ex. B.)
Thus, this will not be an argument upon which the motion will be denied.
Third, Plaintiffs argue that the arbitration agreement is a waiver of the patients legal rights and thus violates Health & Safety Code, § 1569.269(c).
Subsection (c) states: No provision of a contract of admission, including all documents that a resident or his or her representative is required to sign as part of the contract for, or as a condition of, admission to a residential care facility for the elderly, shall require that a resident waive benefits or rights to which he or she is entitled under this chapter or provided by federal or other state law or regulation.
(Health & Saf. Code, § 1569.269(c).)
Health & Safety Code, § 1599.81 states:
(a) All contracts of admission that contain an arbitration clause shall clearly indicate that agreement to arbitration is not a precondition for medical treatment or for admission to the facility.
(b) All arbitration clauses shall be included on a form separate from the rest of the admission contract. This attachment shall contain space for the signature of any applicant who agrees to arbitration of disputes.
(Health & Saf. Code, § 1599.81.)
The arbitration agreement is provided on a separate form from the Residence and Services Agreement and clearly states at the top in bold:
Signing this alternate dispute resolution agreement is not a precondition of the admission to or furnishing of services by Belmont Village.
(
Residence and Services Agreement, Appendix I at I-1 [bold in original].)
Thus, signing the arbitration agreement was optional/voluntary and there was no requirement for Plaintiffs to have signed the arbitration agreement as a requirement to obtain services.
Fourth, Plaintiffs argue that White did not have legal authority to bind Mattia to the arbitration agreement.
They argue that Mattia did not sign the arbitration agreement, White only signed on behalf of Mattia as the Responsible Person, and no power of attorney has been provided to show that White has the capacity to contract on behalf of Mattia.
The Court of Appeals discussion in
Hutcheson v. Eskaton FountainWood Lodge
(2017) 17 Cal.App.5th 937, 944945 is instructive:
As the
Flores
court explained, Generally, a person who is not a party to an arbitration agreement is not bound by it. (
Buckner v. Tamarin, supra,
98 Cal.App.4th at p. 142 [119 Cal.Rptr.2d 489].) However, there are exceptions. For example, a
patient
who signs an arbitration agreement at a health care facility can bind relatives who present claims arising from the patient's treatment. (
Mormile v. Sinclair
(1994) 21 Cal.App.4th 1508, 1511-1516 [26 Cal.Rptr.2d 725];
Bolanos v. Khalatian
(1991) 231 Cal.App.3d 1586, 1591 [283 Cal.Rptr. 209].) Further, a person who is authorized to act as the patient's
agent
can bind the patient to an arbitration agreement.
(
Hutcheson
, supra,
17 Cal.App.5th at 944945.)
In
Hutcheson
, the decedent signed a healthcare power of attorney, naming her niece as attorney-in-fact to make healthcare decisions for her.
The decedent thereafter signed a personal care power of attorney designating her sister and niece as her attorneys-in-fact.
The decedents sister then voluntarily admitted decedent to defendant residential care facility and the sister signed the admission agreement, which contained an arbitration clause, on the decedents behalf.
In determining whether compelling arbitration was proper, the Court of Appeal concluded that
admission of decedent to the residential care facility for the elderly in this instance was a health care decision, and the attorney-in-fact who admitted her, acting under the [Power of Attorney Law], was not authorized to make health care decisions on behalf of the principal.
(
Hutcheson v. Eskaton FountainWood Lodge
(2017) 17 Cal.App.5th 937, 941.)
Here, there is no evidence offered by the parties that White had legal authority under a power of attorney to bind Mattia to an arbitration agreement.
As stated in
Pagarigan v. Libby Care Center, Inc.
(2002) 99 Cal.App.4th 298:
A person cannot become the agent of another merely by representing herself as such. To be an agent she must actually be so employed by the principal[] or the
principal
intentionally, or by want of ordinary care, [has caused] a third person to believe another to be his agent who is not really employed by him.
[] Defendants produced no evidence Ms. Pagarigan had ever employed either of her daughters as her agent in any capacity. Nor did defendants produce any evidence this comatose and mentally incompetent woman did anything which caused them to believe either of her daughters was authorized to act as her agent in any capacity.
(
Pagarigan v. Libby Care Center, Inc.
(2002) 99 Cal.App.4th 298, 301-302 [footnotes omitted].)
At most, the arbitration agreement states Whites representations that she is authorized to act as Mattias agent and that Belmont Defendants may reasonably rely on her authority to sign the arbitration agreement.
However, Belmont Defendants have not shown that White in fact was Mattias agent for the purposes of binding her to the arbitration agreement, such as under a power of attorney, signed document by Mattia naming White as her agent, etc.
As such, the motion to compel arbitration is denied.
DISCUSSION RE DEMURRER
Vineland demurs to each cause of action alleged in the complaint.
A.
Uncertainty
Vineland demurs to the entirety of the complaint, arguing that it is uncertain because the allegations mostly concern Belmont Defendants and fails to allege specific conduct about Vineland.
The complaint alleges general facts about Mattia, her admission to Belmont Defendants facility, and then her admission to Vineland.
(See Compl., ¶¶11-29.)
Paragraphs 30 to 49 are regarding Belmont Defendants actions and inactions.
Paragraphs 50 to 70 are regarding ALLEGATIONS AGAINST VINELAND.
Plaintiffs allege that after Mattia was admitted to Providence following her fall in the bathroom, she entered Vineland for rehabilitation on May 17, 2023.
(Compl., ¶18.)
Plaintiffs allege that Mattia sustained another fall on May 17, 2023 at approximately 7:50 p.m., which caused her to be transferred to the emergency room on May 17, 2023.
(
Id.
, ¶¶19-20.)
Plaintiffs allege that Defendants were aware that Mattia had a high probability of suffering injuries and had a duty to provide adequate care and supervision to prevent falls.
(
Id.
, ¶24.)
They allege that Vineland owed Mattia a duty to provide necessary custodial and professional care to attain or maintain her wellbeing and to be free from mental and physical abuse; to notify a physician of any sudden or marked adverse changes; to conduct assessments of her functional capacity; and to provide a sufficient number of personnel for appropriate custodial and professional services to Mattia.
(
Id.
, ¶¶50-54.)
Plaintiffs allege that Mattias injuries were the result of Defendants plan and effort to cut costs in the operation of their facilities and that Defendants knew that they would be unable to comply with the standards of care as a result of insufficient staffing and training.
(
Id.
, ¶60.)
At the demurrer stage, the Court accepts the pleading as true.
Here, the allegations are not so uncertain that Vineland cannot ascertain what facts are being alleged against it.
While Vineland is sometimes referred to and grouped with Defendants generally, the Court accepts the pleadings that Belmont Defendants and Vineland each engaged in certain conduct (or inactions) towards Mattia.
As such, the demurrer on the basis of uncertainty is overruled.
B.
1
st
cause of action for elder abuse (Welfare & Institutions Code §§ 15600
et al.
)
Vineland argues that the elder abuse cause of action fails to allege sufficient facts against it.
This cause of action is a statutory remedy provided under Welfare and Institutions Code §15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act, enacted at Welfare & Institutions Code §§ 15600 to 15675.
In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adult.
(
Covenant Care, Inc. v. Superior Court
(2004) 32 Cal. 4th 771, 787.) These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorneys fees and pain and suffering for elders who have died.
In order to obtain these heightened remedies and show elder abuse under section 15657, the plaintiff must plead and show that the defendant is liable for: (1) physical abuse as defined in section 15610.63; or (2) neglect as defined in Section 15610.57.
In addition, section 15657 requires the plaintiff to show that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. Accordingly, the plaintiff must show that the defendant engaged in conduct, either physical abuse or neglect, and that the defendant engaged in the conduct with a specific mental state, either recklessness, oppression, fraud, or malice.
In the 1
st
cause of action, Plaintiffs allege the elements of elder abuse/neglect based on CACI VF 3105.
(Compl., ¶72.)
Plaintiffs allege that Defendants were to provide care/services to Mattia and were care custodians of Mattia.
(
Id.
, ¶73.)
They allege that Mattia is an elder (born May 31, 1928) and that Defendants neglected Mattia under the definition of the Welfare & Institutions Code by denying or withholding goods/services necessary to meet Mattias basic needs.
(
Id.
, ¶¶74-75.)
They allege that Defendants repetitive acts/omissions constituted negligence and were done with malice, oppression, and fraud, such that Mattia suffered economic and non-economic damages.
(
Id.
, ¶¶76-77.)
The allegations fail to allege facts showing that Vineland intended to harm Mattia and thereby caused and/or contributed to Mattias injuries are lacking.
The elements of elder abuse must be pleaded with particularity for this statutory cause of action.
While Plaintiffs incorporate all the prior allegations into their 1
st
cause of action, Plaintiffs should specifically plead what allegations are being alleged against Vineland in the 1
st
cause of action.
In opposition, Plaintiffs argue that they have adequately pled neglect.
To plead neglect, a plaintiff must allege facts establishing that the defendant:
(1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care;
(2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and
(3)
denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult, if the plaintiff alleges oppression, fraud or malice, or with conscious disregard of the high probability of such injury, if the plaintiff alleges recklessness.
Carter v. Prime Healthcare Paradise Valley LLC
(2011) 198 Cal. App. 4th 396, 406-407.)
In addition, the plaintiff must allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (
Id
.) The facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity, in accordance with the pleading rules governing statutory claims. (
Id
.)
As currently alleged, Plaintiffs have only alleged neglect in conclusory, general terms.
At most, Plaintiffs have alleged that Mattia entered Vineland for rehabilitation on May 17, 2023, but that she sustained another fall and was transferred to Providences emergency room at approximately 7:50 p.m. that same day; she then passed away on July 6, 2023.
(Compl., ¶¶18-22.)
While Plaintiffs allege that Vineland owed Mattia certain types of duties, breached those duties, and understaffed its facility, Plaintiffs have not alleged specific facts regarding what happened on May 17, 2023 during Mattias short residency with Vineland, how Vineland neglected Mattia, and how Vinelands actions/inactions caused or contributed to her injuries.
The demurrer to the 1
st
cause of action is sustained with leave to amend.
C.
2
nd
cause of action for negligence
The elements of a negligence cause of action are duty, breach of duty, proximate cause, and damages.
(
Carlsen v. Koivumaki
(2014) 227 Cal.App.4th 879, 892.)
In the 2
nd
cause of action, Plaintiffs allege that Defendants owed statutory, regulatory, and common law duties to Mattia and Defendants breached those duties, which caused Mattia to suffer injuries.
(Compl., ¶¶81-83.)
This cause of action is essentially devoid of any facts against Vineland and simply alleges the elements of a negligence cause of action.
While Plaintiffs incorporate the prior allegations (paragraph 80), Plaintiffs have not stated which facts apply to this cause of action against each of the Defendants.
Facts should be alleged in the 2
nd
cause of action to support a claim of negligence instead of simply alleging the elements of a negligence cause of action.
The demurrer to the 2
nd
cause of action is sustained with leave to amend.
D.
3
rd
cause of action for violation of Resident Rights (Health & Safety Code § 1430(b))
Health & Safety Code, § 1430(b) states in relevant part:
(1)
A current or former resident or patient
, or the legal representative, personal representative, or successor in interest of a current or former resident or patient,
of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a
civil action
against the licensee of a facility who violates any rights of the resident or patient as set forth in Section 72527
or 73523
of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee's employees.
(Health & Saf. Code, § 1430(b).)
In the 3
rd
cause of action, Plaintiffs allege that Vineland Post Acute, LLC was the licensee of the skilled nursing facility known as Vineland Post Acute, LLC dba Vineland Post Acute.
(Compl., ¶86.)
They allege that Vineland failed to treat Mattia with respect, consideration, and full recognition of dignity in care of her personal needs as required by the Patients Bill of Rights, such that Vineland violated her rights under 22 C.C.R. §§ 72527(a)(3), 72527(a)(12), 72527(a)(25), 72315, and 72517; and 43 C.F.R. §§ 483.25, 483.10(b)(11), 483.20(d), 483.20(k)(1), 483.20(k)(3)(i), and 483.25(h)(1).
(
Id.
, ¶87 (a)-(j).)
Plaintiffs allege that while Mattia was a resident, she suffered numerous falls with injuries and endured pain and suffering, which Health & Safety Code, § 1430(b) is intended to protect against.
(
Id.
, ¶¶88-89.)
For the same reasons discussed above, the complaint fails to allege sufficient facts to constitute a cause of action for violation of residents rights against Vineland.
The allegations in support of the 3
rd
cause of action are a recitation of the Health & Safety Code and citations to various California Code of Regulations sections and Code of Federal Regulations sections.
No supporting facts are actually alleged in the 3
rd
cause of action.
The demurrer to the 3
rd
cause of action is sustained with leave to amend.
E.
4
th
cause of action for wrongful death
The elements of a wrongful death cause of action are: (1) a wrongful act or neglect on the part of one or more persons that (2) causes (3) the death of another person.
(
Nogart v. Upjohn Co.
(1999) 21 Cal.4th 383, 390.)
In the 4
th
cause of action, Plaintiffs allege that White is the surviving heir of decedent Mattia.
(Compl., ¶93.)
Plaintiffs allege that Vineland and Belmont Defendants owed duties to Mattia and they failed to meet those duties, such that Mattia died on July 6, 2023.
(
Id.
, ¶¶94-96.)
They allege that prior to Mattias death, White enjoyed the love, society, comfort, and attention of Mattia.
(
Id.
, ¶97.)
For the reasons discussed above, the wrongful death cause of action is insufficiently pled and lacks facts against Vineland.
The demurrer to the 4
th
cause of action is sustained with leave to amend.
DISCUSSION RE MOTION TO STRIKE
Vineland moves to strike allegations for attorneys fees and costs and for punitive damages.
In light of the ruling on the demurrer, the motion is taken off-calendar as moot.
CONCLUSION AND ORDER
Defendants Belmont Village Burbank Tenant, LLC dba Belmont Village Burbank and Belmont Three, LLC dba Belmont Village Burbanks motion to compel arbitration is denied.
Defendants Vineland Post Acute, LLC dba Vineland Post Acutes demurrer is sustained with 20 days leave to amend.
In light of the ruling on the demurrer, Defendants Vineland Post Acute, LLC dba Vineland Post Acutes motion to strike is taken off-calendar as moot.
Each party shall provide notice of their respective order.
DATED: July 26, 2024
___________________________
John J. Kralik
Judge of the Superior Court
Ruling
OLIVER LEROY VANN vs. OSAROBO OSEMWINGIE LVN
Jul 29, 2024 |
19-CVC-11488
Defendant’s Motion for Summary Judgment is GRANTED. Mandatory Settlement Conference and Trial Setting are VACATED. Summary judgment must be granted if all the papers and affidavits submitted, together with “all inferences reasonably deducible from the evidence” and uncontradicted by other inferences or evidence, show ‘there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).)” (Property California SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1161- 1162.) The party moving for summary judgment carries both the burden of persuasion and the burden of production of evidence. (Evid. Code §500; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) A defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Alternatively, a defendant meets its burden by submitting evidence ‘that the plaintiff does not possess, and cannot reasonably obtain, needed evidence’ supporting an essential element of its claim.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Plaintiff’s complaint alleges a single cause of action of medical negligence against Defendant Osemwingie, LVN. To establish a prima facie case of professional malpractice, a Plaintiff must prove by a preponderance of the evidence each of the following four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 482). In medical malpractice actions, expert testimony is required to prove each of the four prima facie elements. (Lawless v. Calloway, (1944) 24 Cal.2d 81, 90; Willard v. Hagemeister, (1981) 121 Cal.App.3d 406 412). A Plaintiff opposing a motion for summary judgment on a medical malpractice claim must present competent expert testimony that the Defendants' delivery of medical services fell below the standard of care, and the breach of the duty of care proximately caused the injury. (Rutherford v. Owens- Illinois, Inc., (1997) 16 Cal.4th 953, 957-58; Jameson v. Desta, (2013) 215 Cal.App.4th 1144, 1166; Johnson v. Superior Court, (2006) 143 Cal.App.4th 297, 305. Defendant Osemwingie, LVN offers into evidence the declaration of Dr. J. Jackson, Plaintiff’s physician who treated Plaintiff after the injection of Estradiol. Dr. Jackson reviewed Plaintiff’s medical records as well as medical literature regarding the potential side effects of a single injection of Estradiol. (Decl. Jackson ¶¶ 2-3.) Dr. Jackson was unable to find any clinical or statistical information to suggest that a single injection of Estradiol might have any significant effects, or even any adverse effects. (Decl. Jackson ¶ 4.) Based on the review of the medical literature, Plaintiff’s medical file, as well as Dr. Jackson’s own examinations of Plaintiff, it is the doctor’s professional medical opinion that the injection of Estradiol did not cause any side effects or lasting effects of any kind. (Decl. Jackson ¶ 5.) Here, Defendant presents admissible evidence showing that Plaintiff does not possess and cannot obtain evidence supporting demonstrable damages, or that the conduct of Defendant caused any such damages. Burden Shifts to Opposing Party Once the moving party has met their initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to the cause of action or a defense. “The defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(1); emphasis added.) “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions', or mere possibilities’” (Myricks v. Lynwood Unified School District (1999) 74 Cal.App.4th 231, 237.) ‘Thus, while the court in determining a motion for summary judgment does not “try” the case, the court is bound to consider the competency of the evidence presented.’ (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525-526.) Defendant’s Motion for Summary Judgment is unopposed. Plaintiff offers no relevant, admissible evidence as to the cause of action for medical negligence against Defendant Osemwingie, LVN. In light of the court’s ruling granting Defendant’s Motion for Summary Judgment, the Mandatory Settlement Conference and Trial Setting are vacated. Moving party is ordered to prepare a judgment and dismissal conforming to the court’s order within ten (10) days of the hearing date. Plaintiff is incarcerated at Mule Creek State Prison. As per Amador Local Rules of Court, rule 4.03, subdivision F, the tentative ruling procedures do not apply in any case in which a self-represented party in the custody of the California Department of Corrections and Rehabilitation. Plaintiff may appear telephonically for hearing; orders will be made at time of hearing.
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Law Division Hearing Date:Motion No hearing Sectionscheduled Initial Case Management Dates for CALENDARS (A,B,C,D,E,F,H,R,X,Z) will be heard In Person. Location: All other Law <> Division Initial Case Management Dates will be heard via Zoom Judge: For more Calendar, information 11 and Zoom Meeting IDs go to https.//www.cookcountycourt,org/HOME?Zoom-Links?Agg4906_SelectTab/12 Court Date: 9/24/2024 9:30 AM FILED 6/20/20245:10 7/2/2024 11:56 PMPM IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ COUNTY DEPARTMENT, LAW DIVISION CIRCUIT CLERK COOK COUNTY, IL 2023L007098 5:10 PM 2024L007355 2023L007098 2024L007355 John Doe, et al 11 Calendar, C Plaintiff, 28202921 28363733 versus Court No: 23-L-007098 (And all consolidated cases) Northwestern University, an Illinois Not-For- In re: Northwestern Hazing 7/2/202411:56 Profit Corporation, et. al Defendant. 6/20/2024 Patrick Fitzgerald, DATE: Court No: 23-L-010135 DATE: versus FILED (consolidated for pre-trial discovery FILED Northwestern University, an Illinois Not-For- with Case No. 2023 L 007098) Profit Corporation, et. al Defendant. PLAINTIFFS’ MASTER COMPLAINT AT LAW NOW COME the Plaintiffs, by and through their attorneys of record, and for their Master Complaint at Law against the Defendants, Northwestern University (occasionally referred to as “NU”), an Illinois Not-For-Profit Corporation; Northwestern University Board of Trustees (“Board of Trustees”), as an agent of Defendant NU and/or in its official capacity; Dr. James J. Phillips (“Phillips”), individually and as an agent of Defendant NU; Dr. Derrick Gragg (“Gragg”), individually and as an agent of Defendant NU Patrick William Fitzgerald, Jr. (“Fitzgerald”), individually and as an agent of Defendant NU; Jay Hooten (“Hooten”), individually and as an agent of Defendant NU; Alexander “Alex” Spanos (“Spanos”), individually and as an agent of Defendant NU; Henry S. Bienen (“Bienen”), individually and as an agent of Defendant NU; Mark Murphy (“Murphy”), individually and as an agent of Defendant NU; Morton Schapiro, individually and as an agent of Defenant NU; and Michael Schill, Individually and as an agent of Defendant NU, (hereinafter collectively referred to as “Defendants”) pleading hypothetically and in the alternative, the Plaintiffs allege as follows: John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) FACTS COMMON TO ALL COUNTS 2023L007098 5:10 PM 2024L007355 Nature of the Case 1. The parties before the Court are former members of the Northwestern University 7/2/202411:56 football program who, at various times over the course of the last three decades, were targets of 6/20/2024 ritualized sexual abuse that became an institutional practice at Northwestern. DATE: DATE: 2. Plaintiffs allege, inter alia, that Defendants committed various acts of negligence, FILED FILED willful and wanton conduct, violations of the Illinois Gender Violence Act, and other acts emanating from a culture of ritualized sexual abuse and violent hazing that went on for decades. 3. The sexual conduct that occurred as more fully set forth herein 1 was perpetrated in whole or in part for the sexual gratification and/or arousal of other members of the football program. 2 4. At all times relevant hereto, Plaintiffs were, and continue to be, “subject to threats, intimidation, manipulation, or fraud perpetrated by the perpetrator and by persons the perpetrator knew or should have known was acting in the interest of the perpetrator[,]” including, but not limited to, being ostracized by the team, losing scholarships, not playing football, and interference with their graduation from Northwestern University and ongoing lifetime success and career. 1 Pursuant to 735 Ill. Comp. Stat. Ann. 5/13-202.3, for an action arising out of an injury caused by “sexual conduct” or “sexual penetration” as defined in Section 11-0.1 of the Criminal Code of 2012, the limitation period in Section 13- 202 does not run during a time period when the person injured is subject to threats, intimidation, manipulation, or fraud perpetrated by the perpetrator or by a person the perpetrator knew or should have known was acting in the interest of the perpetrator. 2 As evinced by: (i) Inappropriate comments about looking forward to simulating “humping” of other players buttocks; (ii) Commands during naked drills that the victims didn’t spread their legs far enough to expose their genitals; (iii) Forced “re-dos” of the “naked quarter back-center exchange” because the quarter backs hands did not touch the genitals of the center; (iv) Moaning during “running”; and (v) Erections during “running.” Page 2 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) PARTIES, JURISDICTION AND VENUE 2023L007098 5:10 PM 2024L007355 5. Each individual Plaintiff as set forth in the various short form complaints is or was a member of the Northwestern University Football Program in various capacities and during discrete time frames. 7/2/202411:56 6. Defendant Northwestern University is a private, not-for profit, nonsectarian 6/20/2024 university established in 1851 that is authorized to do business in the State of Illinois. Its principal DATE: DATE: place of business is located at 633 Clark Street, in the city of Evanston, Cook County, Illinois. FILED FILED 7. At all times material to the allegations made herein, Northwestern University was governed by Defendant Northwestern University’s Board of Trustees (“Board of Trustees”), which consists of six (6) officers. 8. At all times material to the allegations made herein, the Board of Trustees was responsible for “establish[ing] policies for the governance of [Northwestern] University and [was] responsible for general oversight of the management of the institution.” 3 At all times material to the allegations made herein, the Board of Trustees was an agent and/or apparent agent of Northwestern University. 9. From approximately July 7, 2006, through July 10, 2023, Defendant Patrick William Fitzgerald, Jr. was the Dan and Susan Jones Family Head Football Coach of the Northwestern University Football Program (a position otherwise referred to as “head football coach”) and an employee of Northwestern University. From July 7, 2006, through July 10, 2023, Fitzgerald was an agent and/or apparent agent of Northwestern University. 10. From July of 2011 through December of 2023, Defendant Jay Hooten served as the 3 Board of Trustees, NORTHWESTERN UNIVERSITY (last visited Aug. 7, 2023), retrievable at the following link: https://bit.ly/3qnFSy6. Page 3 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) Director of Football Performance for the Northwestern University Football Program and as an employee of Northwestern University. From his initial hiring in 2009 through December of 2023, 2023L007098 5:10 PM 2024L007355 Hooten was an agent and/or apparent agent of Northwestern University. 11. From 2013 through January of 2024, Defendant Matt McPherson (“Mac”) was an 7/2/202411:56 Assistant Coach of the Northwestern University Football Program and an employee of 6/20/2024 Northwestern University. From 2013 through January of 2024, Matt McPherson was an agent DATE: DATE: and/or apparent agent of Northwestern University. FILED FILED 12. Since 2015, Defendant Alexander “Alex” Spanos (“Spanos”) has served on and been a member of the coaching staff for the Northwestern University Football Program and an employee of Northwestern University in various capacities – including as an assistant strength and conditioning coach (i.e., as a “strength coach” or “assistant strength coach”), an assistant director of Football Performance, and as the presumed incoming director of Football Performance. Since 2015, Spanos has been an agent and/or apparent agent of Northwestern University. 13. From 2008 to 2021, Defendant Dr. James J. Phillips (“Phillips”) served an employee of Northwestern University in various capacities – including Northwestern University’s 21st Director of Intercollegiate Athletics and Recreation (from approximately April of 2008 to 2012); and as the Combe Family Vice President for Athletics and Recreation (from approximately 2012 to February of 2021, when he assumed the role of commissioner of the Atlantic Coast Conference) upon having been so elevated by Northwestern University President Morton Schapiro. From 2008 to 2021, Phillips was an agent and/or apparent agent of Northwestern University. 14. From June 4, 2021, until the present, Defendant Dr. Derrick Gragg (“Gragg”) has been the Combe Family Vice President for Athletics and Recreation at Northwestern University. Page 4 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) Since 2021, Gragg has been an agent and/or apparent agent of Northwestern University. 15. From January of 1995 to September of 2009, Defendant Henry S. Bienen 2023L007098 5:10 PM 2024L007355 (“Bienen”) served as the president of Northwestern University. From January of 1995 to September of 2009, Bienen was an agent and/or apparent agent of Northwestern University. 7/2/202411:56 16. From approximately 2003 to 2007, Defendant Mark Murphy (“Murphy”) served as 6/20/2024 Northwestern University’s athletic director. From approximately 2003 to 2007, Murphy was an DATE: DATE: agent and/or apparent agent of Northwestern University. FILED FILED 17. From September 1, 2009, until September 12, 2022, Defendant Morton Schapiro, was the President of Northwestern University and a member of the staff at Northwestern University. From September 1, 2009, until September 12, 2022, Morton Schapiro, was an employee and/or agent and/or apparent agent of Northwestern University. 18. From September 12, 2022, until the present day, Defendant Michael Schill, was the President of Northwestern, as well as a member of the staff at Northwestern. From September 12, 2022, until the present day, Defendant Michael Schill was an employee and/or agent and/or apparent agent of Northwestern University. FACTS COMMON TO ALL COUNTS The Veneer of Northwestern’s Commitment to Anti-Hazing and Anti-LGBTQ Discrimination Through University Policies 19. The proffered institutional commitment of Northwestern University to an atmosphere free of discrimination, anti-LGBTQ bias and hazing is well documented in its public- facing documents. 20. Throughout multiple references on the Northwestern University website and in official University publications, Northwestern proclaims its self-described status as a progressive Page 5 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) institution, committed to the advancement of LGBTQ causes in furtherance of a commitment to LGBTQ students, staff and faculty. 2023L007098 5:10 PM 2024L007355 21. Northwestern University’s Anti-Hazing Policy, 4 in effect at all times relevant to Plaintiffs’ claims, defines hazing as: 7/2/202411:56 a. “…any action taken or situation created, intentionally or unintentionally, whether on or off University premises and whether presented as optional or 6/20/2024 required, to produce: mental, physical, or emotional discomfort; servitude; degradation; embarrassment; harassment; or ridicule for the purpose of DATE: DATE: initiation into, affiliation with, or admission to, or as a condition for continued membership in a group, team, or other organization, regardless FILED FILED of an individual’s willingness to participate. Acceptance of or consent to an activity on the part of a new member or individual does not justify an individual, organization, or group’s sponsorship of the activity[.]” 22. Northwestern’s Anti-Hazing Policy further delineates specific examples of hazing as follows: a. Any physical abuse expected of or inflicted upon another, including paddling, tattooing, or branding in any form; b. Any strenuous physical activity expected of or inflicted upon another, including calisthenics or physical training as punishment; c. Creation of excessive fatigue, sleep deprivation, or interference with scholastic activities, including late night work sessions, meetings, or sleepovers; d. Physical and psychological shocks, including lineups, berating, verbal abuse, threats, and name calling; e. Sexual violations or other required, encouraged, or expected sexual activity, whether actual or simulated; f. Prolonged exposure to severe or inclement weather; g. Periods of silence or social isolation; 4 https://www.northwestern.edu/hazing-prevention/responsibilities/northwestern- policy.html#:~:text=An%20individual%20who%20makes%20a,alcohol%20or%20use%20of%20drugs Page 6 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) h. Kidnapping, road trips, abandonment, scavenger hunts, or any other involuntary excursions; 2023L007098 5:10 PM 2024L007355 i. Wearing of uniforms or apparel that is conspicuous and not normally in good taste; j. Engaging in degrading or humiliating games, activities, stunts, or 7/2/202411:56 buffoonery; including requiring, encouraging, or expecting individuals to carry, possess, or maintain objects or items; 6/20/2024 k. Requiring or compelling the consumption of liquid (including alcohol), DATE: food, drinks, or other substances; DATE: FILED FILED l. Servitude or placing another in a position of servitude, including requiring, encouraging, or expecting a new member to do the tasks of, or to do tasks for, an experienced member, or to address members with honorary or formal titles; m. Taking, withholding, or interfering with an individual’s personal property; n. Falsely leading an individual or individuals to believe that they will be inducted or initiated by participating in particular activities; o. Depriving an individual of any privileges of membership or affiliation to which one is entitled; p. Removing, stealing, taking, or damaging public or private property; and… q. Requiring, encouraging, or expecting individuals to participate in activities that are illegal or unlawful or are not consistent with the group’s mission or values or the policies of the University, including the Student Code of Conduct. 23. The Northwestern University student handbook (“student handbook”) defines sexual harassment as follows: Sexual harassment is any unwelcome conduct of a sexual nature where: a. Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing or participating in any University program and/or activity, or is used as the basis for University decisions affecting the individual (often referred to as “quid pro quo” harassment; or Page 7 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) b. The conduct has the purpose or effect of: 2023L007098 5:10 PM 2024L007355 • Substantially interfering with, limiting or depriving a member of the community from accessing or participating in the academic or employment environment, and/or substantially interfering with an individual’s academic performance or work performance; or 7/2/202411:56 • Creating an academic or working environment that a reasonable person would consider to be intimidating, hostile or offensive. 6/20/2024 24. The student handbook prohibits “silent participation” in hazing and creates a duty DATE: DATE: FILED to report for individuals in leadership roles or positions of power. The handbook further proscribes FILED sexual exploitation, which includes inducing others to expose themselves when consent is not present. Consent is deemed to not present if acquiescence to an act is the result of intimidation, extortion, menacing behavior, bullying, coercion (severe or persistent pressure causing fear of significant consequences if one does not engage in sexual activity), force or threats. Notably, Northwestern claims in its staff handbook that silent participation in the presence of hazing is not a neutral act, but rather a violation of Northwestern school policy. 25. Northwestern University’s policy imposes upon all staff, including student employees and graduate students with teaching or supervisory authority, a duty to report sexual misconduct, with the proviso that the policy “does not require a person experiencing harm to report the incident.” 26. A “[f]ailure of an individual in a leadership role or position of power to address and/or report an act of hazing committed against another individual may also be considered an abuse of power,” according to Northwestern University policy. 5 27. Northwestern University’s “Policy on Minors at Northwestern” states all employees, students, volunteers, and third-party contractors are obligated to report to the Illinois 5 https://www.northwestern.edu/hazing-prevention/responsibilities/northwestern-policy.html Page 8 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) Department of child and Family Services or an applicable state agency if there is any suspected abuse and or neglect of a child. 2023L007098 5:10 PM 2024L007355 28. 720 ILCS 120/5 of the Illinois Hazing Act, defines a person committing hazing as someone “who knowingly requires the performance of any act by a student or other person in a 7/2/202411:56 school… for the purpose of induction or admission into any group, organization, or society 6/20/2024 associated or connected with the institution: (a) the act is not sanctioned or authorized by that DATE: DATE: educational institution; and (b) the act results in bodily harm to any person.” Individuals who take FILED FILED part in such acts can be charged with a Class A misdemeanor or a Class 4 felony depending on the severity of the injury. 720 ILCS 120/10. 29. Northwestern’s public commitment to equality and providing a welcoming space for members of the LGTBQ community, as well as its professed institutional commitment against hazing and sexual misconduct, stands in stark contrast to its actions within the Northwestern Athletic Department generally, and the Northwestern football program, specifically. 30. As set forth herein, the conduct of Northwestern, through its leaders, coaches and staff, evince a pervasive and disturbing pattern of abiding – and at times actively encouraging – a systemic pattern of ritualized sexual abuse. That pattern, embedded in its established sexualized hazing traditions, is bound by a common theme of symbolically reducing members of the LGBTQ community – specifically gay men – to objects of ridicule, the victims of random assault, and the antithesis of the masculine culture the Northwestern football program wishes to project. Institutionalized Hazing Practices at Northwestern During Relevant Timeframes Ritualistic Sexual Abuse at Camp Kenosha and in the Early Phases of Players’ Collegiate Football Careers 31. Most players who enter the Northwestern University football program begin their journey as minors as young as 15 to 17 years old. Recruitment is an elaborate affair in which Page 9 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) coaches come to a prospective recruit’s hometown, watch hometown games and practices, and meet with the player and his family at their home or high school. Promises are made to the players, 2023L007098 5:10 PM 2024L007355 parents and guardians by the coaches that the recruits will receive an elite education and be well cared for in the football program. 7/2/202411:56 32. Upon entry into the Northwestern football program and after a period of time during 6/20/2024 the summer spent on campus from approximately 1992 through 2019, players participated in a DATE: DATE: training camp held at the University of Wisconsin-Parkside campus in the village of Somers, FILED FILED Kenosha County, Wisconsin – otherwise referred to as “Camp Kenosha.” Many players were under the age of 18 when they attended Camp Kenosha. 33. During their time at Camp Kenosha, players were first introduced to the culture of sexual abuse and other forms of “hazing” under the guise of team-bonding and instilling a sense of camaraderie. Players were pressured into accepting the notion that the routine ritualistic sexual abuse within the Northwestern program was simply the cost of participating as a player for a Big Ten team and a Northwestern football scholarship. 34. The context under which players initially began to experience the ritualistic sexual abuse as detailed herein is informative. By definition, desensitizing an elite college football player to abuse characterized as “hazing” is achieved by portraying the conduct as normal and accepted within the team subculture. This customarily involves a power differential whereby upperclassmen or more senior players exert control over newer members, leaving victims to feel powerless, intimidated, and unable to challenge the perpetrators to recognize and/or report the abuse. 35. Northwestern University football players and members of the program were uniquely isolated from the rest of the Northwestern University campus. Moreover, positions in Page 10 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) Division I college football are in high demand such that there was both explicit and implicit pressure not to jeopardize those positions by raising issues that might appear to undermine the 2023L007098 5:10 PM 2024L007355 team or the team’s success. 36. At Camp Kenosha and in other years where the reality of ritual sexualized hazing 7/2/202411:56 was revealed to new players early in their first year, those players were placed in the untenable 6/20/2024 position of having to either endure the abuse – and thus preserve their ability to receive an elite DATE: DATE: education at Northwestern – or risk losing everything they had worked for by branding themselves FILED FILED as outcasts who refused to abide by the program’s traditions, however illicit they might be. 37. At Camp Kenosha and other locations where the Northwestern football program operated, Plaintiffs and other players were subjected to a panoply of methods by which targeted sexual abuse of certain players was perversely treated as a team-bonding and motivational endeavor. The nature and extent of this abuse continued for decades as a matter of routine. Ritualized Sexual Abuse Via “Running” 38. A “run” or the act of “running” would generally consist of, inter alia, a group of players cornering and forcibly holding down a non-consenting teammate or member of the coaching staff (including interns). As the victimized player/member was held down (and often stripped of his clothing), he was then set upon by a group of players who rubbed their genital areas against the victimized player’s buttocks, genitals and face in a rocking back and forth motion colloquially referred to as “dry humping.” 39. The “running” practice was, of course, done without the consent of the victims. In some instances, the practice also involved the grabbing of the genitalia of a fellow teammate or member of the coaching staff, or the insertion of one’s fingers in another’s buttocks. Page 11 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) 40. “Running” – and other sexualized hazing as detailed herein – was an act performed by one or more players for purposes of sexual gratification and in an assertion of dominance over 2023L007098 5:10 PM 2024L007355 the victimized player. The practice of “running” pervaded the Northwestern Football program, including activity at Camp Kenosha, the Northwestern campus in Evanston, as well as off-campus 7/2/202411:56 venues and hotels where the team stayed on away games. 6/20/2024 41. In many instances, coaches would direct the players to “run” other players or even DATE: DATE: assistant coaches. On one occasion, Defendant Fitzgerald pointed at a defensive back and stated FILED FILED to a defensive captain, “Are you gonna run him? He needs to be ran.” After practice, a group of defensive players followed Fitzgerald’s direction and “ran” the defensive back by “dry humping” him in the Northwestern locker room. 42. There were two notable instances each year when players would create lists of players and staff to get “ran”. “Runsgiving” and “Runsmas,” which occurred yearly near the Thanksgiving and Christmas holidays, were two biannual instances of large-scale, planned “running”. 43. While at camp Kenosha, freshmen and transfer students on the team were encouraged to keep their doors unlocked because upperclassmen or more senior members of the team would be coming to their rooms and “running them.” For those who locked their doors, they were warned that, eventually, they would be caught and “ran.” Many freshmen members of the team would then leave their doors open and take their “runnings” without a fight or struggle, but even those who did not resist were not safe from repeated “runnings.” 44. During one “running” incident a player was cornered in his room by a group of ten to fifteen players while they grabbed at his body, his shorts, his buttocks and genital area without consent. During the encounter, the assailants screamed, “Fuck him in the ass.” Page 12 John Doe, et al. v. Northwestern University, et al. Case No.: 2023-L-007098 Plaintiffs’ Master Complaint at Law (for all consolidated cases) 45. During another incident, more than thirty players entered the room of another Northwestern player, grabbed him, disrobed him, and then proceeded to “run” him. 2023L007098 5:10 PM 2024L007355 46. Another horrifying experience occurred when a player was physically dragged out of his room by five to six teammates, then brought to a common area where they announced his 7/2/202411:56 “running,” through a megaphone, as fifty (50) other teammates crowded in the room. As the crowd 6/20/2024 of teammates gathered, the player was “ran” by an onslaught of teammates. DATE: DATE: 47. Players were routinely physically restrained and sexually assaulted by groups of FILE