EMILY SHIELDS, ET AL. VS UNIVERSITY OF SOUTHERN CALIFORNIA, A CORPORATION, ET AL.

Tentative Rulings

Case Number: *******5228 Hearing Date: September 14, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Emily Shields (“Shields”), Chelsea Kovinsky (“Kovinsky”), and Hannah Upshaw (“Upshaw”) (collectively, “Plaintiffs”) filed this action against Defendants University of Southern California (“USC”) and Tim Ojeda (“Ojeda”) (collectively, “Defendants”) for injuries Plaintiffs sustained as former student athletes on a lacrosse team at USC. Plaintiffs allege they were diagnosed with rhabdomyolysis after an excessive and punitive workout on September 6, 2019, led by USC employee Ojeda. The operative First Amended Complaint alleges causes of action for negligence against all defendants and intentional infliction of emotional distress (“IIED”) against Ojeda.[1]

At this time, Defendants move for an order compelling arbitration between Plaintiffs and Defendants. Plaintiffs oppose the motion, and Defendants filed a reply.

Defendants assert that Plaintiffs each signed an Informed Consent form that contained an arbitration agreement that covers all claims asserted by Plaintiffs. Defendants argue that they have not waived their right to binding arbitration, that there are no grounds for revocation of the agreement, and that no third-party claim has arisen in this matter. Further, Defendants request that the action be stayed in its entirety until arbitration is completed.

In opposition, Plaintiffs assert that USC forced them to sign the boilerplate arbitration agreements, and that the agreements are unconscionable procedurally and substantively. Additionally, Plaintiffs contend that Defendants waived their right to enforce the arbitration agreements.

Defendants, in reply, aver that Plaintiffs fail to establish that the agreements are unconscionable or that Defendants waived their right to enforce arbitration.

2. Motion to Compel Arbitration

a. Existence of Arbitration Agreement and Claims Covered by Arbitration Clause

In deciding a petition to compel arbitration, trial courts must decide first whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The opposing party has the burden to establish any defense to enforcement. (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 (“The petitioner, T–Mobile here, bears the burden of proving the existence of a valid arbitration agreement and the opposing party, plaintiffs here, bears the burden of proving any fact necessary to its defense.”).)

In California, there is a “strong public policy in favor of arbitration.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) Accordingly, “doubts concerning the scope of arbitrable issues are to be resolved in favor of arbitration.” (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak St. (1983) 35 Cal.3d 312, 323.) Further, “under both the FAA and California law, ‘arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” (Higgins v. Sup. Ct. (2006) 140 Cal.App.4th 1238, 1247.) This policy, however, is tempered by the recognition that arbitration must be based on an enforceable contract, as “[t]here is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate.” (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653.)

There is a “ ‘strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.’ “ (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9.) However, it is essential to the proper operation of that policy that “ ‘[t]he scope of arbitration is ... a matter of agreement between the parties' [citation], and ‘ “[t]he powers of an arbitrator are limited and circumscribed by the agreement or stipulation of submission.” ‘ [Citations.]” (Ibid.)

“[T]he party moving to compel arbitration bears the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.)

Here, Defendants submit evidence showing that Shields and Upshaw signed an Informed Consent form that contained an arbitration agreement on August 20, 2017, and Kovinsky signed an Informed consent form with an apparently identical arbitration agreement on August 20, 2018. (Mot. Gupta Decl. 2 Exhs A-C.) Each Informed Consent form contains an arbitration agreement stating:

Part II -ACKNOWLEDGMENT OF ARBITRATION POLICY AND AGREEMENT TO ARBITRATE CLAIMS

(READ CAREFULLY -By Signing this Agreement You are Giving Up Rights)

Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Arbitration is different than a court proceeding and these differences have advantages and disadvantages. For example, arbitration may be faster, cheaper and more flexible than litigation in court. On the other hand, and among other things, parties to arbitration have only limited rights to discovery or "fact-finding" tools, and the arbitrator's decision generally cannot be appealed and is subject to review only on extremely narrow grounds. Importantly, by entering into this Acknowledgment of Arbitration Policy and Agreement to Arbitrate Claims ("Agreement"), YOU AND USC EXPRESSLY WAIVE YOUR CONSTITUTIONAL RIGHTS TO A COURT OF LAW AND TRIAL BY JURY for covered claims (as described below).

By signing this Agreement, you and USC further agree that any covered claim or dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding.

(Mot. Exhs. A-C.)

Plaintiffs, in opposition, do not dispute signing the arbitrations agreements. Furthermore, the agreements provide the following concerning which claims are covered:

Claims Covered Student-Athlete and USC agree to resolve by individual arbitration all disputes or claims arising directly or indirectly out of, or in any way connected to, the Student-Athlete's participation in the Program, including, but not limited to disputes concerning any accident, injury, illness, death, loss, damage to person or property, or any other tort; claims for discrimination or harassment; claims for breach of any contract or covenant, express or implied; disputes concerning scholarship or eligibility determinations; and claims for violation of any federal, state or other governmental law, statute, regulation, or ordinance.

(Ibid.) As Defendants argue, the agreements cover Plaintiffs’ claims for injury, illness damage to person, and any other tort, which Plaintiffs are alleging arose out of their participation in the subject program.

Therefore, Defendants’ evidence shows the parties entered into a valid arbitration agreement, and that Plaintiffs’ claims are within the scope of the agreement.

b. Unconscionability

“California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967; CCP 1281.2.)

In this case, Plaintiffs argue that the agreements are not enforceable because the arbitration clause in them is unconscionable.

In general, the doctrine of unconscionability refers to “ ‘ “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” ’ ” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133.) In other words, the doctrine consists of procedural and substantive components, “ ‘the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.’ ” (Id.)

If unconscionable, the arbitration agreement is not a valid contract and therefore is unenforceable. (Armendariz, 24 Cal.4th at 114.) Although both components of unconscionability must be present to invalidate an arbitration agreement, they need not be present in the same degree. (Id.) “ ‘Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. [Citations.] In other words, the more substantively unconscionable the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.’ ” (Id.)

Ultimately, determining whether an agreement is unconscionable requires evaluating “the totality of the agreement’s substantive terms as well as the circumstances of its formation to determine whether the overall bargain was unreasonably one-sided.” (Sonic, 57 Cal.4th at 1146.) Procedural unconscionability concerns the manner in which the contract was negotiated and the parties' circumstances at that time; it focuses on the factors of oppression or surprise. (Kinney v. United Healthcare Services. Inc. (1999) 70 Cal.App.4th 1322, 1329.)

Plaintiffs contend the arbitration clause in the agreements is procedurally and substantively unconscionable. Plaintiffs contend the agreements are effectively one-sided in their application, and that they were forced to sign them. Plaintiffs argue the agreements are adhesive in nature as Plaintiffs were on a scholarship to play lacrosse at USC, and Plaintiffs feared their scholarships or places on the lacrosse team would be jeopardized if they did not sign the agreements.

In the analogous situation involving an employer’s arbitration agreement, the Courts of Appeal have concluded that take it or leave it employer arbitration agreements are procedurally unconscionable. (See, e.g., Baxter v. Genworth North America Corp. (2017) 16 Cal.App.5th 713, 723-724 [arbitration agreement held procedurally unconscionable where employer presented arbitration agreement on a take-it-or-leave-it basis and agreement was required as a condition of continued employment]; Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 722 [same]; see also Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704 [noting “[i]t is well settled that adhesion contracts in the employment context, that is, those contracts offered on a take-it-or-leave-it basis, typically contain some aspects of procedural unconscionability”].)

Defendants, in reply, do not dispute the claims that Plaintiffs were required to sign the agreements as a condition of participation in Defendants’ program. The Court, thus, finds procedural unconscionability in the agreements. However, “ ‘a finding of procedural unconscionability does not mean that a contract will not be enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided.’ ” (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1244.) “To describe a contract as adhesive in character is not to indicate its legal effect. It is, rather, ‘the beginning and not the end of the analysis insofar as enforceability of its terms is concerned.’ Thus, a contract of adhesion is fully enforceable according to its terms unless certain other factors are present which, under established legal rules legislative or judicial operate to render it otherwise,” such as if the contract is unduly oppressive or unconscionable. (Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 819-20, citations and footnotes omitted.)

In arguing that the arbitration clause is substantively unconscionable, Plaintiffs concede that the language of the arbitration agreement is objectively two-sided but argue that they were unfairly forced to sign it.[2] Plaintiffs also argue it would be a substantial injustice to force Plaintiffs to arbitrate their claims for IIED against Ojeda because they did not contemplate that they were agreeing to arbitrate this tort, and that Plaintiffs’ right to a judicial action cannot be lightly waived.

Plaintiffs, however, do not identify any specific provisions they contend are unconscionable. The entire Informed Consent form, in which the arbitration agreements are found, is eight pages total. The arbitration agreements make up three of the eight pages and contain underlined subsections with evenly spaced apart paragraphs.

Page four of the agreements is titled “Part II - ACKNOWLEDGMENT OF ARBITRATION POLICY AND AGREEMENT TO ARBITRATE CLAIMS” and contains the following admonishment, “(READ CAREFULLY -By Signing this Agreement You are Giving Up Rights).” (Mot. Exhs. A-C, capitalizations in originals.) Each page of the arbitration agreement is initialed by each of the Plaintiffs. (Ibid.) Further, the arbitration agreements each contain an underlined subsection titled, “Claims Covered,” which provides in relevant part that “Student-Athlete and USC agree to resolve by individual arbitration all disputes or claims arising directly or indirectly out of, or in any way connected to, the Student-Athlete's participation in the Program, including, but not limited to disputes concerning any accident, injury, illness, death, loss, damage to person or property, or any other tort…” (Ibid.) Although Plaintiffs argue that it would be a substantial injustice to require them to arbitrate their claims for IIED against Ojeda, the agreements are conspicuous, and Plaintiffs agreed to arbitrate all claims arising from their participation in the program, including for injury, illness, loss, and any other tort.

Additionally, Plaintiffs do not submit any evidence showing that language in the arbitration applies to them and not the University, or that there was fraud or surprise in their signing of the arbitration agreements. Lastly, directly above the signature line on each arbitration agreement, the following language appears:

NOTICE: BY SIGNING THIS CONTRACT YOU ARE GIVING UP YOUR CONSTITUTIONAL RIGHT TO A JURY TRIAL AND YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION COVERED BY THE AGREEMENT. YOU ARE AGREEING TO INDIVIDUAL ARBITRATION OF ANY AND ALL DISPUTES OR CLAIMS ARISING DIRECTLY OR INDIRECTLY OUT OF, OR IN ANYWAY CONNECTED TO, YOUR PARTICIPATION IN THE PROGRAM, AS WELL AS ANY AND ALL DISPUTES OR CLAIMS ARISING DIRECTLY OR INDIRECTLY OUT OF, OR IN ANYWAY CONNECTED TO, THIS AGREEMENT…

(Mot. Exhs. A-C.) The Court does not find Plaintiffs’ right to a jury trial was lightly waived, rather Plaintiffs were put on clear notice of the effect of signing the arbitration agreements. Plaintiffs do not establish the agreements are substantively unconscionable.

Based on the foregoing, Plaintiffs do not show the arbitration agreement is unenforceable under the doctrine of unconscionability.

c. Waiver

Waiver in arbitration means the contractual right to arbitration has been lost. (Saint Agnes Med. Ctr. v. PacifiCare of Calif. (2003) 31 Cal.4th 1187, 1195, fn. 4.) It is a question of fact with the party claiming waiver bearing a heavy burden of proof. (Iskanian v. CLS Transp. Los Angeles. LLC (2014) 59 Cal.4th 348, 375; Saint Agnes, supra. 31 Cal.4th at 1195-96.) A petition to compel arbitration is resolved in a summary proceeding where the trial court sits as the trier of fact. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)

To prove waiver, the plaintiff must show (1) the defendant was aware of the right to compel arbitration, (2) the defendant acted inconsistently with that right, and (3) the plaintiff was prejudiced as a result. (Hoover v. American Income Life ins. Co. (2012) 206 Cal.App.4th 1193, 1203.) A party seeking to arbitrate should within a reasonable time move, to compel arbitration, and unreasonable delay may constitute a waiver. (Lewis v. Fletcher Jones Motor Cars. Inc. (2012) 205 Cal.App.4th 436. 445-46; Zamora v. Lehman (2010) 186 Cal.App.4th 1, 17.) Nevertheless, mere participation in litigation, short of determination on the merits, does not constitute, in itself, a waiver. (Iskanian, supra. 59 Cal.4th at 375.)

In determining if a party waived his right to compel arbitration, the courts consider the following factors: “ ‘ “ ‘(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparation of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place”; and (6) whether the delay “affected, misled, or prejudiced” the opposing party.’ ” ’ ” (Id. at p. 375.) Also, “bad faith” or “willful misconduct” of a party may constitute a waiver and thus justify a refusal to compel arbitration. [Citation.]’ ” (Id. at 374–375.)

Here, Plaintiffs argue that Defendants have waived their right to enforce the arbitration agreements because Defendants filed their answer to the complaint on July 5, 2022, propounded written discovery on all three Plaintiffs, and Defendants filed a demurrer and motion to strike portions of Plaintiffs’ complaint on July 18, 2022.

However, Plaintiffs filed this action on May 6, 2022, and Defendants submit evidence showing defense counsel sent Plaintiffs’ counsel correspondence on June 2, June 16, July 5, July 15, July 17, and August 12, 2022, concerning the arbitration agreements and clearly and repeatedly requesting the parties stipulate to arbitration. (Mot. Gupta Decl. 3 Exh. D.) Defendants assert that after conveying the arbitration agreements to Plaintiffs’ counsel on June 16, 2022, Plaintiffs did not agree to arbitrate their claims, so Defendants were forced to file their responsive pleadings or risk default. Although Defendants served an initial set of written discovery on Plaintiffs, Defendants otherwise filed this motion on August 16, 2022, just over three months after the complaint was filed. While Plaintiffs state in a conclusory manner that countless attorney hours have been expended on this matter, Plaintiffs do not articulate any prejudice they have suffered due to Defendants’ conduct. Mere participation in the litigation standing alone does not constitute a waiver. (Iskanian, 59 Cal.4th at 375.) Furthermore, the Court notes that Plaintiffs did not file their operative First Amended Complaint following Defendants’ demurrer to the original complaint until September 8, 2022, and thus, the litigation machinery has not been substantially invoked in this action. (Id. at 375.) There is no showing that Defendants have delayed in seeking arbitration, or that Defendants have engaged in any bad faith regarding seeking to compel arbitration.

Accordingly, Plaintiffs do not establish that Defendants waived the right to enforce the arbitration agreements.

d. Conclusion

Defendants’ petition to compel arbitration is granted. The action is stayed pending arbitration.

Defendants are ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 14^th day of September 2022

Case Number: *******5228 Hearing Date: August 22, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Emily Shields, Chelsea Kovinsky, and Hannah Upshaw (collectively, “Plaintiffs”) filed this action against defendants University of Southern California (“USC”) and Tim Ojeda (“Ojeda”) for injuries Plaintiffs sustained as former student athletes on a lacrosse team at USC. Plaintiffs allege they were diagnosed with rhabdomyolysis after an excessive and punitive workout on September 6, 2019, led by USC employee Ojeda. The complaint alleges causes of action for negligence against all defendants and intentional infliction of emotional distress (“IIED”) against Ojeda. Plaintiffs allege Ojeda’s conduct warrants an award of punitive damages against him.

Defendant Ojeda now demurs to the complaint arguing the second cause of action for IIED fails to state sufficient facts to constitute a claim against him. Additionally, Ojeda moves to strike the claim for IIED and the request for punitive damages. Plaintiffs oppose the demurrer and motion, and Ojeda filed a reply to each opposition.

2. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

a. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP 430.41(a).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Gupta Decl. 3-4.)

b. Analysis re: 2^nd Cause of Action for IIED

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.)

The California Supreme Court has held that a defendant’s actions could be characterized as "outrageous" for purposes of tort liability for intentional infliction of emotional distress, if he “(1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].) Moreover, a defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community, and the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [citations and quotations omitted].)

Here, Ojeda contends that the complaint does not allege any extreme or outrageous conduct against him, and that Plaintiffs do not allege an intent by Ojeda to cause emotional distress. Further, Ojeda contends that the complaint does not allege any conduct directed solely at them, as the alleged conduct was directed at all members of the lacrosse team that attended the subject workout, and that the complaint fails to allege Plaintiffs suffered any severe emotional distress.

The complaint alleges in relevant part concerning the alleged workout:

3. In early September of 2019, PLAINTIFFS and their teammates returned from their summer break to begin practice for the new lacrosse season. On September 6, 2019, the lacrosse team was expected to complete a cardio workout followed by a workout in the weight room. The workout was scheduled to go from 7:00 a.m. to 11:00 a.m. As athletes began their workouts, Defendant OJEDA appeared.

4. When Defendant OJEDA learned that four athletes had forgotten to turn in a form, he forced the entire team to complete forty (40) burpees as punishment. However, if one of the teammates' form was slightly off or the count was not loud enough to his liking, Defendant OJEDA forced the student-athletes, including PLAINTIFFS, to start over with their burpees.

5. Exhausted from the unnecessary and punitive aerobic workout, PLAINTIFFS and their teammates proceeded to the weight room to complete their weightlifting workout. Each team member received a card detailing their training for that day, and Defendant OJEDA picked a student to count out loud for the team. If PLAINTIFFS or their teammates were off the pace or erred in the workout in any other way, Defendant OJEDA made the team start the sequence repeatedly for each exercise.

6. After a grueling weightlifting session, the team then had to perform eccentric pullups. Less than half of the team could do more than two pullups. The PLAINTIFFS and their teammates were tired and unable to stay in unison. Blatantly and willfully ignoring PLAINTIFFS' and their team members' fatigue, OJEDA made them restart their workout multiple times. It was evident the students grew exhausted. However, Defendant OJEDA failed to adjust their workouts and even mocked Ms. Upshaw for faltering after 15 pullups. Defendant OJEDA disregarded the students' physical condition and thereafter had the students perform deadlifts and TRX rows. Ms. Upshaw was physically unable to hold a 25-pound plate during her deadlift, and her arms shook with great intensity. Rather than stopping the workout or adjusting it, OJEDA's aggression increased, and he mocked the students. Other coaches joined in. When PLAINTIFFS and their team members attempted to rest, DEFENDANT OJEDA told the student-athletes that such action showed they did not care for the team. As a result, PLAINTIFFS and their teammates were pressured to continue working out without rest, putting more strain, fatigue, and overload on their muscles. After the grueling workout, the head coach, Lindsey Munday, told the team not to discuss the incident under any circumstance.

7. As a result of the excessive, unnecessary, and punitive workouts led by USC Coach Tim Ojeda, the failure of Dr. Bernardez to adequately treat rhabdomyolysis, as well as the nonchalance and premature clearing of the athletic trainers, PLAINTIFFS now suffer severe and permanent injuries. PLAINTIFFS now bring this lawsuit for personal injuries against Defendant USC, Defendant Tim Ojeda, and DOES 1 through 50, inclusive.

(Compl. 3-7.) Pertaining to the IIED cause of action, the complaint alleges that Ojeda’s conduct was outrageous and intended to cause Plaintiffs emotional distress, or that Ojeda acted with reckless disregard of the probability Plaintiffs would suffer emotional distress, and that Ojeda’s physical abuse, harassment, and aggressive behavior caused Plaintiffs’ injuries. (Id. at 29-30.)

Even if it is assumed for the purposes of argument that outrageous conduct is alleged, concerning Plaintiffs’ claim they suffered emotional distress as a result of the incident, Plaintiffs merely allege that “PLAINTIFFS have been injured and hurt in their health, strength and activity, sustaining serious injuries to their bodies, and shock and injury to their nervous systems and all person, all of which said injuries have caused, and continue to cause PLAINTIFFS great physical and mental pain and suffering.” (Id. at 31.)

This is insufficient to meet the high bar to establish severe emotional distress. (See e.g., Pittman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047 [mere allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation fails to state claim for intentional infliction of emotional distress]; see also Hughes (2009) 46 Cal.4th at 1051.) This alleged distress does not rise to the level of “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes (2009) 46 Cal.4th at 1051.)

Plaintiffs cite Fletcher v. Western Nat. Life Ins. Co., (1970) 10 Cal.App.3d 376, 397 (“Fletcher”), for the proposition that their allegations of emotional distress are sufficient. More specifically, Plaintiffs argue, “Just like the plaintiff in Fletcher, Plaintiffs have and will continue to suffer from fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and worry long into the future as a result of Defendant Ojeda's conduct.” (Opp. at p. 10:19-21.) Putting aside the fact that the Fletcher case is distinguishable,[1] Plaintiffs have not actually alleged fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worry in their complaint, or the factual allegations to support those conclusions. Thus, they have not alleged the necessary element of severe emotional distress.

Accordingly, the complaint fails to state a claim for IIED against Ojeda. The demurrer is sustained as to the second cause of action for IIED.

c. Leave to Amend

The burden is on Plaintiffs to show in what manner they can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

In this case, Plaintiffs request leave to amend the complaint to fully set forth their claims. Given Plaintiffs’ arguments concerning the alleged incident, there is a reasonable possibility the above defects can be cured.

Defendant’s demurrer is sustained to the second cause of action for IIED with 20 days leave to amend.

3. Motion to Strike

In light of the above ruling sustaining the demurrer to the second cause of action in the complaint, the motion to strike the allegations and request for punitive damages in the IIED claim is moot.

Defendant Ojeda is ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 22^nd day of August 2022