Opinion
22-cv-01559-LB
08-02-2023
JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, JOHN DOE 6, JOHN DOE 7, JOHN DOE 8, JOHN DOE 9, JOHN DOE 10, JOHN DOE 11, JOHN DOE 12, JOHN DOE 13, and JOHN DOE 14, individually and on behalf of all others similarly situated, Plaintiffs, v. THE UNIVERSITY OF SAN FRANCISCO, ANTHONY N. AKA NINO GIARRATANO, and TROY NAKAMURA, Defendants.
ORDER GRANTING MOTIONS TO DISMISS IN PART
RE: ECF NOS. 103, 104, 105
LAUREL BEELER, UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
The plaintiffs in this putative class action are former University of San Francisco Division I baseball players who are proceeding as John Does 1-3 (more recent players) and John Does 4-14 (earlier players). The plaintiffs allege that since 1999, USF head coach Anthony Giarratano and assistant coach Troy Nakamura created a sexualized environment - by being naked, miming and discussing sexual acts, belittling players with vulgar names, and handing out sex toys, among other conduct - and then berating and punishing players who did not participate. They sued the coaches for their behavior and USF for allowing the behavior to persist, claiming Title IX discrimination and retaliation, negligent supervision and retention of the coaches, discrimination in violation of California Education Code § 66270, a failure by USF to identify its gender-discrimination policies in violation of California Education Code § 66281.5, other negligence claims, intentional and negligent infliction of emotional distress, and ratification.
The court previously granted in part the defendants' motions to dismiss and dismissed the claims by all Does except 1-3 as barred by the statute of limitations, dismissed the Title IX retaliation claim because the plaintiffs did not plead protected activity, and dismissed the § 66281.5 claim. The plaintiffs reasserted the dismissed claims in an amended complaint and added breach-of-contract claims. The defendants moved to dismiss the reasserted claims and the contract claims. USF also moved to strike allegations about abuse by the Catholic Archdiocese and the claim for injunctive relief for lack of standing because the plaintiffs are no longer students.
At the pleadings stage, the discrimination claims by Does 4-14 for violations of Title IX and California Education Code § 66270 (claims 1 and 5) survive. The discovery rule is better addressed at summary judgment, given the alleged coverup that was the cause of the Title IX injury. The statute of limitations bars the remaining claims for Does 4-14: the conduct was overt, and the plaintiffs experienced it as abuse when it occurred. Similarly, other claims accrued when the plaintiffs were students. The remaining plaintiffs, Does 1-3, plausibly pleaded a prima facie case of Title IX retaliation: they allege that they all pushed back on or did not condone the sexual discrimination, and they were punished for it. The § 66281.5 claim survives - even though exhaustion is required - because the plaintiffs plausibly allege that they received no notice of USF's sexual-harassment policies or procedures for challenging misconduct. The court dismisses without prejudice the contract claims based on the written and oral contracts with USF: the wrong contract was attached to the complaint, and the court cannot consider the new documents or legal theories advanced in the opposition. The court dismisses the breach-of-contract claim predicated on the alleged contract between the NCAA and USF because the plaintiffs have not plausibly alleged that they were third-party beneficiaries. The court denies the motion to strike the allegations about the Archdiocese: there are fair Rule 403 concerns that can be addressed later. Finally, on this record, the court dismisses the plaintiffs' prayer for injunctive relief without prejudice.
STATEMENT
1. The Abusive Conduct
The court's earlier order recounted at length the allegations about the coaches' abusive conduct. These allegations remain in the amended complaint. This order does not repeat the earlier summary and instead incorporates the earlier order's summary and analysis by this reference. In short, the plaintiffs played baseball on USF's Division I team: Does 1-3 more recently (2020 on) and Does 4-14 during earlier seasons (1999 through 2018). The plaintiffs plausibly allege that the coaches engaged in abusive, bullying, offensive behavior for decades that was sexualized and directed against the plaintiffs because of their gender. When the plaintiffs did not participate in the behavior, the coaches insulted them and punished them, including by calling them names, belittling them, forcing them to play while injured, benching them, taking away playing time, and interfering with or denying other playing opportunities. As a result, the plaintiffs suffered anxiety, depression, and other psychological harm. Players left the team in droves. Parents complained: in 2014, Doe 6's parents sent a letter complaining about the hostile environment created by the coaches' belittling players, Doe 1's mother complained to the Athletic Director in 2021, and Doe 2's parents emailed the Director for an urgent in-person meeting without specifying why.
New Doe plaintiffs 13 and 14 (2016-2018 and 2015-2016, respectively) had experiences similar to the other plaintiffs. Doe 13 adds that in 2016, an unidentified person told him to spank a nutritionist at a Christmas party at Coach Giarratano's house. He put his hand on the nutritionist's “lower back towards her buttocks.” When the NCAA liaison was told of the incident, Coach Giarratano told Doe 13 to “accept full responsibility” and “not reveal that it was part of freshman hazing.” Doe 14 contends that he was cut from the team because he did not participate in or condone the coaches' sexual antics.
There are new allegations about parents' complaints. In 2000, John Doe 9's mother called Coach Giarratano and demanded that the coaches stop their abuse. He responded by threatening that Doe 9 would never play baseball again if she elevated her complaint, and he gave Doe 9 an F in his physical-education class. Doe 9's mother also called USF's Athletic Director, who was non-responsive and said that he did not care about the behavior. Doe 1 specifies that in spring 2021, his mother tried to contact the USF Athletic Director to “discuss problems with the baseball program that included sexual misconduct,” but the Director did not return her calls. “In the winter of that same year,” she spoke with the Director, who said that they were investigating the issues.
Every plaintiff in the lawsuit “was run off the team by the Coach Defendants, while simultaneously being manipulated to believe that it was their fault and not the wrongdoing of the coaches.” The plaintiffs allege that they did not recognize the conduct as gender-based abuse because the coaches and other athletic staff normalized the conduct. Doe 4 (2017-2018) thought the coaches' frequent nudity was strange, but he tried to accept it because “it was portrayed as ‘normal' within the team culture.” Doe 5 (2011-2014) was uncomfortable when Coach Nakamura exposed himself (as a joke) to other players, but it “was accepted as a normal part of the team culture.”Coach Giarratano required Doe 5 to meet with a school psychologist, but when Doe 5 shared his experiences, the psychologist provided no resources, including on how to report the behavior.Doe 6 (2012-2014) said that sexualized events were part of the team culture, thought them inappropriate, and felt he couldn't speak up formally about misconduct that “appeared ‘normal' to other non-defendant coaches and USF staff.” “Coach G[iarranto]'s open and public participation in and encouragement of Coach Nak[amura]'s sexual behavior in front of non-defendant coaches, other USF personnel (such as the team athletic trainers and photographer), and students led Plaintiffs to believe that Coach G[iarranto]'s (and Coach Nak[amura]'s) behavior was generally accepted and that their own discomfort with the behavior was the player's personal and individual defect.” Similarly, the coaches' open encouragement of sexual behavior (including sexualized hazing and skits) and their physical and emotional abuse of plaintiffs who did not participate normalized the behavior and caused the plaintiffs to think that it was not abuse. Does 4-14 thus did not know that they had claims until they read a San Francisco Chronicle article (published in March 11, 2022) about the lawsuit.
USF participated in the coverup by not following up on parents' complaints, which violated its reporting and investigative policies. USF allowed Doe 6 (2012-2014) to keep his scholarship “because his parents complained to the school and the NCAA faculty representative,” and “in order to perpetuate the cover up of the Coach Defendants' actions, including the sexualized misconduct and [the fact] that Coach G[iarratano] had been falsifying baseball players' statistics.” USF ignored the high transfer rate in its baseball program that “put [it] on notice of serious problems within the program that should have resulted in a documented Title IX investigation.” After the plaintiffs filed this lawsuit, a USF employee contacted the plaintiffs' counsel in writing, “on a confidential basis.” The employee claimed that “USF engaged in ‘the gaslighting of these students'” and “explained that the ‘longstanding relationships' between Coach G[iarratono] and Coach Nak[amura], and between the Coach Defendants and the [Athletic Director], as well as ‘their location within the USF culture were a core reason that these severe violations and behaviors were tolerated, dismissed, and/or covered up at the expense of the physical and mental health of these student-athletes.'” This active concealment meant that Does 4-14 did not know that others had complained and that their abuse was part of a broader policy of deliberate indifference by USF to the coaches' decades-long abuse.
When they started at USF (for all plaintiffs) or at any time thereafter (for Does 2-14), the plaintiffs do not recall (1) being advised that USF had policies governing or prohibiting sexual harassment, or the reporting of it, (2) seeing the policies displayed on campus, (3) being told about them at orientation, or (4) receiving a publication that had the policies.
2. The Claims
The fourteen Doe plaintiffs were USF baseball players (Does 1-3 in recent seasons (2020 through 2022) and Does 4-14 in earlier seasons (1999 through 2018)) and sue individually and on behalf of a putative class of all members of the USF baseball team since 2000. The defendants are USF and the two coaches: Nino Giarratano and Troy Nakamura. The complaint has seventeen claims, all both class and individual (numbered here as in the complaint): (1) discrimination by an intolerable sexualized environment and emotional abuse, in violation of Title IX, 20 U.S.C §§ 1681-89 (against USF); (2) retaliation for players' complaining of sex discrimination (shown by the complaints by Doe 6's parents in May 2014 about a hostile environment, the December 2016 spanking incident at a Christmas party at Coach Giarratano's house that resulted in a Title IX investigation, the March 2021 complaint by Doe 2's parents, and the winter and spring 2021 complaints by Doe 1's parents (all described above)), in violation of Title IX (against USF); (3) negligent supervision and retention of Coach Nakamura (against USF and Nino Giarratano); (4) negligent supervision and retention of Coach Giarratano (against USF); (5) discrimination in the form of an intolerable sexualized environment and emotional abuse, in violation of Cal. Educ. Code § 66270 (against USF); (6) inadequate notice of USF's sexual harassment policy, in violation of Cal. Educ. Code § 66281.5 (against USF); (7) gross negligence by breaching the duty of care to ensure players' safety and freedom from sexual harassment and abuse (against all defendants); (8) negligence on the same theory (against all defendants); (9) negligent failure to warn, train, and educate about the risks of sexual harassment and abuse (against USF); (10) intentional infliction of emotional distress (against all defendants); (11) negligent infliction of emotional distress (against all defendants); (12) ratification of the coaches' behavior (against USF); (13) breach of contractual obligations in the players' signed National Letters of Intent, including the obligation to provide a safe and healthy environment (against USF); (14) breach of obligations in the parties' oral contract, including the obligation to provide scholarships and other benefits (against USF); (15) breach of obligations in the contract between USF and the NCAA (predicated on the plaintiffs' being third-party beneficiaries), including the obligation to provide a safe and healthy environment (against USF as an alternative theory if claims 13 and 14 are dismissed); (16) tortious interference with the written and oral contracts in claims 13 and 14 (against the coach defendants); and (17) tortious interference with prospective economic advantage for the financial benefits promised to the players in the contracts (against the coach defendants). The plaintiffs seek individual and class damages and injunctive relief in the form of appropriate policies.
3. Jurisdiction and Procedural History
The court has federal-question jurisdiction under 28 U.S.C. § 1331, CAFA diversity jurisdiction under 28 U.S.C. § 1332(d)(2), and supplemental jurisdiction over the state claims under 28 U.S.C. § 1367. All parties consented to magistrate-judge jurisdiction under 28 U.S.C. § 636. The defendants moved to dismiss the substantive claims for failure to state a claim under Rule 12(b)(6), and USF moved to strike allegations about the Catholic Archdiocese under Rule 12(f) and the injunctive-relief claim for lack of standing. The plaintiffs conceded dismissal of claims 16 and 17 (both against the coach defendants). The court held a hearing on May 25, 2023.
STANDARDS OF REVIEW
1. Rule 12(b)(6) Motion to Dismiss
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” to give the defendant “fair notice” of (1) what the claims are and (2) the grounds upon which they rest. Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[a] complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory.” Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016).
A complaint does not need detailed factual allegations, but “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (cleaned up). A complaint must contain factual allegations that, when accepted as true, are sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health Plan, Inc., 838 Fed.Appx. 231, 234 (9th Cir. 2020). “[O]nly the claim needs to be plausible, and not the facts themselves ....” NorthBay, 838 Fed.Appx. at 234 (citing Iqbal, 556 U.S. at 696); see Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 886-87 (9th Cir. 2018) (the court must accept the factual allegations in the complaint “as true and construe them in the light most favorable to the plaintiff”) (cleaned up).
Put another way, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (cleaned up).
If a court dismisses a complaint because of insufficient factual allegations, it should give leave to amend unless “the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). If a court dismisses a complaint because its legal theory is not cognizable, the court should not give leave to amend. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016); see Steele-Klein v. Int'l Bhd. of Teamsters, Loc. 117, 696 Fed.Appx. 200, 202 (9th Cir. 2017) (leave to amend may be appropriate if the plaintiff “identifie[s] how she would articulate a cognizable legal theory if given the opportunity”).
2. Rule 12(f) Motion to Strike
Motions to strike are governed by Rule 12(f) of the Federal Rules of Civil Procedure. That rule provides: “The court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The function of a [Rule 12(f)] motion to strike is to avoid the unnecessary expenditures that arise throughout litigation by dispensing of any spurious issues prior to trial.” Rosales v. FitFlop USA, LLC, 882 F.Supp.2d 1168, 1178 (S.D. Cal. 2012) (citing Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983)). Striking is appropriate if it “will make trial less complicated or eliminate serious risks of prejudice to the moving party, delay, or confusion of the issues.” Sliger v. Prospect Mortg., 789 F.Supp.2d 1212, 1216 (E.D. Cal. 2011).
“Immateriality” and “impertinence” under Rule 12(f) both speak to the relevance of challenged allegations. “‘Immaterial' matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994) (cleaned up). “‘Impertinent' matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Id. Where a movant challenges allegations as immaterial or impertinent, “[a] court must deny the motion to strike if there is any doubt whether the allegations in the pleadings might be relevant in the action.” Oracle Am., Inc. v. Micron Tech., Inc., 817 F.Supp.2d 1128, 1132 (N.D. Cal. 2011). “[G]enerally,” then, courts grant such a motion “only where ‘it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.'” Rosales, 882 F.Supp.2d at 1179 (quoting Walters v. Fid. Mortg. of Cal., 730 F.Supp.2d 1185, 1196 (E.D. Cal. 2010) (citing in turn Lilley v. Charren, 936 F.Supp. 708, 713 (N.D. Cal. 1996)).
“Even where matter in a pleading is relevant to the controversy, it nonetheless may be stricken if it is scandalous or set out in ‘needless detail.'” Tucker v. Am. Int'l Grp., Inc., 936 F.Supp.2d 1, 16 (D. Conn. 2013) (quoting Cabble v. Rollieson, No. 04CIV9413LTSFM, 2006 WL 464078, at *11 (S.D.N.Y. Feb. 27, 2006) and citing authorities). “Scandalous” under Rule 12(f) “generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Anderson v. Davis Polk & Wardwell LLP, 850 F.Supp. 2d 392, 416 (S.D.N.Y. 2012) (quoting 2 J. Moore et al., Moore's Federal Practice ¶ 12.37[3] (3d ed. 2010)). “Scandalous” has also been said to encompass allegations that “improperly cast a derogatory light on someone.” Asher & Simons, P.A. v. j2 Global Canada, Inc., 965 F.Supp.2d 701, 704 (D. Md. 2013) (quoting 5C C. Wright et al., Federal Practice and Procedure § 1382 (3d ed. 2011)).
“As a rule, motions to strike are regarded with disfavor because striking is such a drastic remedy; as a result, such motions are infrequently granted.” Amini Innovations Corp. v. McFerran Home Furnishings, Inc., 301 F.R.D. 487, 489-90 (C.D. Cal. 2014) (citing Freeman v. ABC Legal Servs., Inc., 877 F.Supp. 2d 919, 923 (N.D. Cal. 2012) (citing in turn Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000)). “[W]hen ruling on a motion to strike,” the court accepts the challenged allegations as true and “must liberally construe” those allegations “in the light most favorable” to the non-moving pleader. Stearns v. Select Comfort Retail Corp., 763 F.Supp.2d 1128, 1140 (N.D. Cal. 2010); see, e.g., Multimedia Patent Trust v. Microsoft Corp., 525 F.Supp.2d 1200, 1211 (S.D. Cal. 2007) (“In determining a motion to strike, a district court must view the pleadings in the light most favorable to the pleader.”).
ANALYSIS
1. Statute of Limitations
The statute of limitations for claims for breach of a written contract is four years. Cal. Civ. Proc. Code § 337. The tort and breach-of-oral-contract claims have two-year statutes of limitations. Cal. Civ. Proc. Code § 335.1; Cal. Civ. Proc. Code § 339; Stanley v. Trs. of Cal. State Univ., 433 F.3d 1129, 1136 (9th Cir. 2006) (Title IX claims borrow the state statute of limitations; federal law determines when the claim accrues). Thus, all claims by Does 4-12, who all left USF more than four years before the complaint was filed, are barred unless the statutes of limitations are tolled.