Doe v. Univ. of S.F.

• Docket Number: Case No. 22-cv-01559-LB
• Decision Date: 02 August 2023
• Citation: 685 F.Supp.3d 882
• Parties: 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.
• Court: U.S. District Court — Northern District of California

685 F.Supp.3d 882

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, individuallyand on behalf of all others similarly situated, Plaintiffs, v. The UNIVERSITY OF SAN FRANCISCO,Anthony N. (aka Nino) Giarratano, and Troy Nakamura, Defendants.

Case No. 22-cv-01559-LB

United States District Court, N.D. California, San Francisco Division

Filed August 4, 2023

Signed August 2, 2023

Jonathan David Selbin, Michelle A. Lamy, Nigar Shaikh, Pro Hac Vice, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, CA, Ling S. Wang, Pro Hac Vice, Fegan Scott LLC, Minneapolis, MN, Elizabeth A. Fegan, Pro Hac Vice, Fegan Scott LLC, Chicago, IL, Jessica A. Moldovan, Pro Hac Vice, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY, Lynn Ellenberger, Pro Hac Vice, Fegan Scott LLC, Pittsburgh, PA, for Plaintiffs John Doe 1, John Doe 2, John Doe 3.

Jonathan David Selbin, Michelle A. Lamy, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, CA, Elizabeth A. Fegan, Fegan Scott LLC, Chicago, IL, Jessica A. Moldovan, Pro Hac Vice, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY, Ling S. Wang, Fegan Scott LLC, Minneapolis, MN, Lynn Ellenberger, Pro Hac Vice, Fegan Scott LLC, Pittsburgh, PA, for Plaintiffs 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.

David Vincent Roth, Manning & Kass Ellrod Ramirez Trester LLP, San Francisco, CA, Jonathan M. Baum, Sonja Arndt, Steptoe & Johnson, San Francisco, CA, Geoffrey Lawrence Warner, Steptoe & Johnson LLP, Los Angeles, CA, for Defendant University of San Francisco.

Daniel A. Croley, Futterman DuPree Dodd Croley Maier LLP, San Francisco, CA, for Defendant Anthony N. Giarratano.

Scott Brian Rapkin, Michael Steven Rapkin, Rapkin & Associates, LLP, Marina del Rey, CA, for Defendant Troy Nakamura.

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.¹ 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).² 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.³

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."⁴ Doe 14 contends that he was cut from the team because he did not participate in or condone the coaches' sexual antics.⁵

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.⁶ 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.⁷

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."⁸ 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."⁹ 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."¹⁰ 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.¹¹ 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."¹² "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."¹³ 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.¹⁴ Does 4-14 thus did not know that they had claims until they read a San...