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Date: 09-15-2019
Case Style: Carra Crouch v. Trinity Christian Center of Santa Ana, Inc.
Case Number: G055602
Judge: Fybel, J.
Court: California Court of Appeals Fourth Appellate District, Division Three on appeal from the Superior Court, County of Orange
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Defendant's Attorney: James S. Azadian, Jill M. Wheaton, Michael J. King, Ted J. Nelson and Garrett M. Fahy
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Carra Crouch, at age 13, was drugged and raped by a 30-year-old employee
of Trinity Christian Center of Santa Ana, Inc. (TCC) while she was in Atlanta, Georgia to
participate in a TCC-sponsored telethon.1
When Carra returned to California, she and her
mother, Tawny Crouch, went to see Carra’s grandmother, Jan Crouch, who was a TCC
officer and director and was responsible for overseeing the telethon. When Tawny
explained to Jan Crouch what had happened to Carra in Atlanta, Jan Crouch flew into a
tirade and yelled at Carra that she was stupid, it was really her fault, and she was the one
who allowed it to happen. Carra was devastated.
Based on Jan Crouch’s conduct, the jury awarded Carra $2 million in
damages (later remitted to $900,000) against TCC on her cause of action for intentional
infliction of emotional distress (IIED). The jury found that Jan Crouch was acting within
her authority as an officer or director of TCC when she yelled at Carra. TCC appealed.
It challenges the judgment and the trial court’s orders overruling its demurrer to Carra’s
first amended complaint and denying its motions for summary adjudication, nonsuit, a
judgment notwithstanding the verdict (JNOV), and a new trial.
At each stage of the trial court proceedings, and again on appeal, TCC has
argued that Jan Crouch’s conduct was not extreme or outrageous but was just a
grandmotherly scolding or irascible behavior. According to TCC, Carra endured nothing
more than insults, petty indignities, and annoyances.
We conclude that Jan Crouch’s behavior toward Carra was sufficiently
extreme and outrageous to impose liability for IIED. Yelling at 13-year-old girl who had
been drugged and raped that she was stupid and she was at fault exceeds all possible
1
The parties throughout these proceedings and in their appellate briefs have often
referred to Carra as a victim of sexual assault or molestation. The evidence establishes
she was a victim of rape.
3
bounds of decency. By telling Carra she was at fault, Jan Crouch displayed a reckless
disregard for the almost certain emotional distress Carra would, and did, suffer.
We also conclude the evidence was sufficient to support the jury’s finding
Jan Crouch was acting within the course and scope of her authority as an officer or
director and, therefore, to support respondeat superior liability against TCC. We reject
TCC’s other arguments and affirm.
FACTS
The following facts either are undisputed or taken from the evidence at
trial. We refer to Carra Crouch and Tawny Crouch by first name, except when their full
names appear in quoted matter, and sometimes refer to Jan Crouch by first name.
I.
The Incident in Atlanta
TCC is a California nonprofit corporation. In April 2006, Carra, who was
then 13 years old, flew with her grandmother, Jan Crouch, to Atlanta, Georgia to attend a
telethon sponsored by TCC. While in Georgia, Carra planned to visit her cousins Nick
and Nathan. She had also received a message from Steve Smith, a 30-year-old TCC
employee, that he hoped to see her in Atlanta. Nick and Nathan had introduced Smith to
Carra, and she had kept in contact with him.
One evening, Smith made an advance toward Carra at the hotel swimming
pool. Carra had never experienced an adult behaving that way toward her and did not
understand his intentions.
Carra returned to the hotel room she shared with her cousin Nathan and
changed her clothing. Smith went to the hotel room, and Carra and Nathan let him in.
Smith asked if he could “crash” in their room that night. Carra felt a little uncomfortable
about letting him stay, but figured he would sleep on the floor.
Smith brought alcoholic beverages and cigarettes with him and also ordered
champagne from room service. Smith, Carra, and Nathan drank and smoked cigarettes.
4
Carra had never smoked and, except for sips of wine given by her grandfather, had never
drunk alcoholic beverages before. She drank a glass or two of champagne. While they
were drinking, Smith rubbed Carra’s leg and told her she was beautiful. Carra felt
uncomfortable but did not understand what he was doing or what his intentions were.
Eventually, Carra lay down on her bed, Smith lay down on the floor, and
the lights were turned off. Smith claimed he was uncomfortable on the floor and asked if
he could sleep in the bed next to Carra. She felt uncomfortable, but agreed so long as a
pillow was placed between them. Smith moved the pillow and tried to hold Carra up
against his body. Carra felt uncomfortable. She got out bed and said, “I don’t feel
good.”
Smith got up and went into the bathroom. After a few minutes, he returned
with what he said was a glass of water. He handed the glass to Carra and told her, “drink
this. It will help you feel better.”
Carra drank the water. It tasted “a little bit funny.” She remembered
nothing after that other than waking up the next morning with Smith next to her in bed.
Her clothes were disheveled, her pants were off, and she felt sick, shocked, and confused.
She went to the bathroom and used a tissue to wipe blood from her vagina. She had not
yet started menstruating. She felt sore in her vaginal area.
II.
Jan Crouch’s Tirade Against Carra on April 24, 2006
Upon returning to California, Carra told her mother, Tawny Crouch, about
what had happened in Atlanta. Tawny urged Carra to talk to Jan Crouch, Carra’s
grandmother and the family matriarch. Jan Crouch was a TCC officer and director, was
the “go-to for everybody” and was “running the show.”
Tawny called Jan Crouch and asked if she and Carra could come see her
because something had happened in Atlanta. Jan said sure. Tawny contacted Jan
5
because “she was on the trip with [Carra],” and “she was the spiritual advisor and the
person who had the power to do something.”
On April 24, 2006, Tawny took Carra to Jan Crouch’s home in Newport
Beach. Carra was not ready to talk about being raped and asked Tawny to tell Jan what
had happened. Tawny told Jan that in Atlanta a TCC employee named Steven Smith had
molested Carra. As Tawny started going into the details, Jan raised herself up in her seat
and flew into a tirade. Jan yelled at Carra: “How could you be so stupid? How could
you drink alcohol? How could you let this man in your room?” Jan eventually said to
Carra, “well, this is really your fault” and “you’re the one who let this happen.”
Tawny called a timeout and told Carra to go into another room to wait.
Carra went back to the car while Tawny talked privately with Jan Crouch. Jan raged
against Tawny, who tried to point out that Carra was just 13 years old. Jan eventually
threw up her hands and said, “I can’t handle this” and told Tawny to “call Dottie,”
referring to Jan’s sister, Dottie Casoria, who was the TCC station manager in Atlanta.
In the car, Carra broke down. She already was fragile and now felt
“broken” after listening to Jan’s tirade. Carra already blamed herself and Jan had
confirmed those feelings. Tawny returned to the car and told Carra: “This isn’t your
fault. Please know this isn’t your fault. You know, he was a 30-year-old man and you’re
a child.” But Carra was not responsive and, when they got home, she went to her
bedroom and broke down.
III.
TCC’s Investigation
Tawny followed Jan’s instructions and called Dottie “right away.” Tawny
told Dottie that Carra had been molested in Atlanta by a TCC employee. Dottie was
“very loving and understood.” Tawny also advised John Casoria, TCC’s general counsel
and Jan’s nephew, about what had happened. At Casoria’s request, Carra and Tawny
prepared a written statement. Tawny told Casoria she did not want the police notified.
6
Neither of Carra’s parents notified authorities or took Carra to receive medical treatment
or a rape examination.
Casoria contacted Jan Crouch, and she granted him “‘the authority to take
whatever action [he] felt was necessary or needed to protect the best interest of Trinity
Christian Center of Santa Ana, Inc.’” Casoria terminated Smith’s employment with TCC
and notified the Georgia Department of Labor that Smith’s conduct could lead to civil
liability and criminal charges. Casoria never talked to Jan about his investigative
findings but did ask her for authority to terminate Smith’s employment. After Smith’s
employment was terminated, Casoria sent Jan a written report informing her that “events
involving Steve Smith went smoothly.”
IV.
Carra’s Subsequent Troubled Life
Carra had a troubled life as a teenager and young adult. She testified she
started cutting herself when she was in the eighth grade, “huffed” carbon dioxide at
school, and saw a therapist to deal with emotional problems. She testified she “went
from one negative situation to the next, one self-destructive behavior to the next.” In
around 2012, when this lawsuit was filed, she started feeling better; she no longer
believed being raped was her fault and stopped living in shame and guilt.
Calvin A. Colarusso, M.D., is a psychiatrist who testified at trial as an
expert on Carra’s behalf. He testified that Carra “began to drink and use drugs,” “cut
herself,” “made a suicide attempt,” “had sex with approximately ten different boys,” “had
pregnancies at [ages 16, 17, and 19],” “had two abortions and one miscarriage,” obtained
an alternative high school degree because she could not continue in a traditional school,
was involved in “abusive sex, some of which involved alcohol or drugs,” “worked as an
exotic dancer,” “became pregnant again at [age 22],” and “had problems eating.”
Colarusso diagnosed Carra with child sexual abuse and post-traumatic
stress disorder. He testified: “Carra’s chaotic adolescence is definitely due to the sexual
7
abuse and the family’s reaction to the sexual abuse, by not telling her it wasn’t her fault,
by not taking her for a rape exam, by not following up and getting her treatment.” He
testified there were three causes of Carra’s difficulties as a teenager and young adult:
(1) ”she was sexually abused by a 30-year-old man”; (2) ”her grandmother blamed it on
her”; and (3) ”no one . . . reported it and took her to get a rape examination, supported her
that it was not her fault, and got her the treatment that she needed.”
Jan Crouch passed away after the lawsuit was filed but before trial.
PROCEDURAL HISTORY
I.
Pretrial
A. TCC’s Demurrer
In June 2012, Carra filed a complaint against TCC and two months later
filed a first amended complaint against TCC, Jan Crouch, and Casoria. The first
amended complaint asserted causes of action for (1) IIED, (2) negligence—failure to
report, (3) negligence—failure of due care, and (4) vicarious liability.
TCC demurred to the first amended complaint. TCC asserted the first
cause of action failed to state facts sufficient to constitute a cause of action against TCC
because Carra failed to allege it engaged in any conduct that was extreme, outrageous,
and exceeded all bounds of common decency in a civilized society. The trial court
overruled TCC’s demurrer to the first and second causes of action, sustained with leave
to amend TCC’s demurrer to the third cause of action, and sustained without leave to
amend the demurrer to the fourth cause of action. Carra filed a second amended
complaint, which TCC answered.
B. TCC’s Summary Adjudication Motion
Following discovery, TCC moved for summary adjudication of the IIED
cause of action. TCC argued the alleged conduct was not extreme or outrageous as a
8
matter of law, Jan Crouch never intended to cause emotional distress, and Carra could not
prove that Jan’s conduct caused her to suffer severe emotional distress. The trial court
denied TCC’s motion. The court found: “In this case, there are triable issues of material
fact on what defendant Jan Crouch said to Carra Crouch, its emotional impact on Carra
Crouch, defendant Jan Crouch’s recommendation to let John Casoria handle this matter,
and Tawny Crouch’s reliance on this recommendation and letting defendant John Casoria
handle this matter, which would include whether a report to law enforcement would be
made or not. . . . Tawny Crouch testified that [Jan Crouch]’s response to Carra Crouch
was like a tirade. In addition, here, as generally, causation is a question of fact.”
C. TCC’s Motion to Exclude Expert Testimony
Before trial, TCC moved to exclude Colarusso’s testimony and requested
an Evidence Code section 402 hearing on causation. Carra had retained Colarusso to
testify and render an opinion on causation, her emotional and psychological injuries and
their physical manifestations, her treatment, damages, prognosis, and future care and
costs. TCC argued Colarusso should not be permitted to testify whether lack of family
support was a cause of harm to Carra because he could not apportion liability to Jan
Crouch, as opposed to other family members, without engaging in speculation. Carra
argued Colarusso would testify about “the course of [Carra]’s development after the
sexual assault would have been different and she would not have had all of the
psychological and emotional problems that she had in her life had she been handled
appropriately following the reporting of the sexual assault.”
After conducting an Evidence Code section 402 hearing, the court orally
stated that Colarusso “cannot be asked to opine that any action or inaction after the events
comprising the IIED and the negligent failure to report, caused or contributed to those
conditions or damages” and would not be allowed to opine on what Jan Crouch, TCC, or
any family member did or said after April 24, 2006. In a written order, the court ruled
9
that Colarusso would be permitted to testify to (1) ”his observation as to the symptoms
consistent with [there] having been a sexual assault or potential rape” and (2) ”the
behavior of Jan Crouch was a substantial factor in regards to the [IIED] and negligence
claims.” The court ruled that Colarusso “is not to offer his opinion that the 7 years of
silence caused or contributed to actions after the alleged incident in Georgia.”
II.
Trial
A. TCC’s Nonsuit Motion
The case proceeded to trial against TCC on the causes of action for IIED
and negligent failure to report. (Jan Crouch and Casoria were dismissed before trial.)
TCC contended that Colarusso’s testimony violated the trial court’s order by referring on
several occasions to events and conditions in the seven-year period of time following
Carra’s meeting with Jan Crouch in April 2006. TCC moved for a mistrial or to strike
Colarusso’s testimony. The trial court denied the motion. The court found Colarusso’s
testimony had not violated the court’s order in that “[h]is testimony good, bad, or
indifferent . . . all stems from the meeting and the failure to report.”
After Carra rested her case, TCC moved for a nonsuit on the IIED cause of
action. TCC argued Jan Crouch had not engaged in any extreme or outrageous conduct
in her meeting with Carra in April 2006. TCC asserted: “This case will stand alone in all
of California jurisprudence if this jury is allowed to find that a grandmother, who was
solicited in her home after hours to give advice and comfort, can be sued because the
Plaintiff did not like what advice grandmother gave.” Jan’s comments to Carra,
including the comment that Carra was at fault for being raped, were, according to TCC,
“typical to normal grandmother-to-granddaughter” relations. TCC argued that Carra
failed to present evidence that Jan Crouch intended to cause her severe emotional
distress, that Jan Crouch was acting in the course and scope of her TCC duties during the
10
conversation, or that Carra suffered severe emotional distress caused by Jan’s conduct on
April 24, 2006, as opposed to the events occurring after that date or the rape itself.
The trial court denied TCC’s motion for a nonsuit with the proviso the jury
would have to be instructed that TCC could be liable only if Jan Crouch were acting in
the course and scope of her position as an ordained minister for, or president or board
member of, TCC.
B. The Jury Verdict
The jury returned a verdict in favor of Carra and awarded her $2 million in
damages on the IIED cause of action. In the special verdict form, the jury made these
findings:
1. At the time of the April 24, 2006 incident at Jan Crouch’s home, Jan
Crouch was acting within the course and scope of her authority as an officer or director of
TCC.
2. On April 24, 2006, Jan Crouch, while acting within the course and scope
of her authority as an officer or director of TCC, engaged in conduct that was outrageous
in front of Carra and was directed at her.
3. On April 24, 2006, Jan Crouch, while acting within the course and scope
of her authority as an officer or director of TCC, intended to cause Carra emotional
distress or acted with reckless disregard of the probability that Carra would suffer
emotional distress, knowing that Carra was present when the conduct occurred.
4. The conduct of Jan Crouch, while acting within the course and scope of
her authority as an officer or director of TCC, was a substantial factor in causing Carra to
suffer severe emotional distress.
5. On April 24, 2006, Jan Crouch was not acting in her professional
capacity as a clergy member of TCC.
11
The jury awarded Carra $1 million for past noneconomic loss for mental
suffering and $1 million for future noneconomic loss for mental suffering. The jury
allocated responsibility for damages as follows: Jan Crouch—45 percent; Steve Smith—
20 percent; Paul Crouch, Jr. (Carra’s father)—0 percent; Tawny Crouch—35 percent.
Judgment awarding Carra $2 million in damages against TCC was entered.
III.
Posttrial
A. TCC’s JNOV Motion, Motion for a New Trial, and
Motion to Vacate Judgment
TCC moved for a JNOV on the grounds (1) substantial evidence did not
support the jury’s finding that Jan Crouch was acting within the course and scope of her
authority as an officer or director of TCC when she spoke with Carra on April 24, 2006,
(2) Jan’s conduct toward Carra on April 24, 2006 was not extreme or outrageous as a
matter of law; (3) substantial evidence did not support the jury’s finding that Jan’s
conduct caused Carra to suffer severe emotional distress.
TCC moved for a new trial on the same grounds as the JNOV motion and
on these additional grounds: (1) the jury’s award included compensation for harm caused
by the rape and lack of family support following the April 2006 meeting; (2) damages
were excessive; (3) Colarusso’s testimony exceeded the scope permitted by pretrial
orders; and (4) the court erred by not instructing the jury with CACI No. 433
(superseding criminal/tortious acts). TCC moved to vacate the judgment under Code of
Civil Procedure section 663 on the ground the judgment was inconsistent with the verdict
in that the jury found Jan Crouch to be responsible for 45 percent of Carra’s damages but
awarded the full $2 million against TCC.
12
B. The Trial Court’s Rulings
The trial court found there was substantial evidence to support the jury’s
findings and for that reason denied TCC’s JNOV motion. The court denied TCC’s
motion to vacate the judgment.
The court did find, however, the jury’s award and apportionment of
45 percent of the fault to Jan Crouch could not be reconciled. The jury’s apportionment
of fault would make sense only if it were directed to the negligent failure to report cause
of action, but the jury found against Carra on that cause of action. Thus, the judgment
could not be corrected to be consistent with the verdict.
The court granted TCC’s new trial motion on the issue of damages only,
unless Carra accepted a remittitur of damages to $900,000. The court found the verdict
“amounted to a finding that [Carra]’s total damages, and not only those arising out of the
incident involving Jan Crouch on April 24, 2006, amounted to $2,000,000.00, and those
damages are accordingly excessive as applied to the first cause of action [IIED] only.”
The court made an independent determination that “$900,000 would be fair and
reasonable for the first cause of action.” The court rejected TCC’s arguments regarding
the scope of Colarusso’s testimony and instructional error.
Carra accepted the remittitur. At the trial court’s direction, a Judgment on
Jury Verdict (Amended) (the Amended Judgment) was entered in favor of Carra and
against TCC for $900,000 (plus interest and costs). TCC filed a notice of appeal from the
judgment, the Amended Judgment, and the trial court’s orders denying the motion for a
JNOV and the motion to vacate the judgment and conditionally granting the motion for a
new trial.2
2
Because Carra accepted the remittitur of damages, the trial court’s order effectively
denied TCC’s motion for a new trial. An order denying a motion for a new trial is not
directly appealable but is reviewable from the underlying judgment. (Walker v. Los
Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.)
13
DISCUSSION
I.
Jan Crouch’s Conduct Toward Carra Was
Extreme and Outrageous
Before directly addressing TCC’s challenges to the trial court’s pretrial,
trial, and posttrial orders and rulings, we resolve the central issue presented by this
appeal: Whether Jan Crouch’s conduct towards Carra on April 24, 2006 constituted
extreme and outrageous conduct sufficient to state a cause of action and recover for IIED.
A cause of action for IIED requires proof of: (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff suffered severe emotional
distress; and (3) the defendant’s extreme and outrageous conduct was the actual and
proximate cause of the severe emotional distress. (Hughes v. Pair (2009) 46 Cal.4th
1035, 1050.)
A defendant’s conduct is considered to be outrageous if “it is so ‘“‘extreme
as to exceed all bounds of that usually tolerated in a civilized community.’”‘“ (Hughes v.
Pair, supra, 46 Cal.4th at p. 1051; see Potter v. Firestone Tire & Rubber Co. (1993)
6 Cal.4th 965, 1001; see also Rest.2d Torts, § 46, com. d, p. 73.) Liability for IIED does
not extend to “‘“mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.”‘“ (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) Malicious or evil purpose
is not essential to liability for IIED. (Spinks v. Equity Residential Briarwood Apartments
(2009) 171 Cal.App.4th 1004, 1045.)
California’s definition of extreme and outrageous conduct is based on
comment d to section 46 of the Restatement Second of Torts. (See Hughes v. Pair,
supra, 46 Cal.4th at p. 1051.) Comment d to section 46 states: “Liability has been found
only where the conduct has been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
14
intolerable in a civilized community. Generally, the case is one in which the recitation of
the facts to an average member of the community would arouse his resentment against
the actor, and lead him to exclaim, ‘Outrageous!’” (Rest.2d Torts, § 46, com. d, p. 73.)
We do not hesitate to exclaim “Outrageous!” when presented with the facts
of Jan Crouch’s behavior toward Carra. Flying into a tirade at a 13-year-old girl who had
been drugged and raped and yelling at her that she was stupid and it was her fault is
extreme and outrageous conduct that exceeds that bounds of decency tolerated in a
civilized community. Such conduct is not mere insults, indignities, petty oppressions or
other trivialities. At age 13, Carra suffered a horrible, traumatic, and life-altering
experience. Yelling at her that she was stupid and it was her fault was cruel, intolerable,
and obviously certain to produce severe emotional harm.
The examples of outrageous conduct given in comment d to section 46 of
the Restatement Second of Torts reinforce a sense of outrage. Example 1 is: “As a
practical joke, A falsely tells B that her husband has been badly injured in an accident,
and is in the hospital with both legs broken. B suffers severe emotional distress. A is
subject to liability to B for her emotional distress. If it causes nervous shock and
resulting illness, A is subject to liability to B for her illness.” (Rest. 2d Torts, § 46, com.
d, illus. 1, p. 73.) Example 3 is: “A is invited to a swimming party at an exclusive resort.
B gives her a bathing suit which he knows will dissolve in water. It does dissolve while
she is swimming, leaving her naked in the presence of men and women whom she has
just met. A suffers extreme embarrassment, shame, and humiliation. B is subject to
liability to A for her emotional distress.” (Id., § 46, com. d, illus. 3, p. 74.)
Jan Crouch’s conduct toward Carra was no less outrageous than falsely
telling someone that his or her spouse was badly injured in an accident and more
outrageous than the dissolving bathing suit.
Jan’s conduct is made all the more outrageous by her knowledge of Carra’s
plight. Comment f to section 46 of the Restatement Second of Torts states: “The
15
extreme and outrageous character of the conduct may arise from the actor’s knowledge
that the other is peculiarly susceptible to emotional distress, by reason of some physical
or mental condition or peculiarity. The conduct may become heartless, flagrant, and
outrageous when the actor proceeds in the face of such knowledge.” (Rest.2d Torts, § 46,
com. f, p. 75.) Jan knew what happened to Carra in Atlanta. That is what Tawny was
telling her. Jan knew that Carra was only 13 years old. Jan knew or should have known
that Carra would be peculiarly susceptible to emotional distress.
The cases relied on by TCC do not help it. In Cochran v. Cochran (1998)
65 Cal.App.4th 488, 492 the defendant told his girlfriend he intended to purchase airline
tickets for her and her daughter with a carrier that had recently suffered a crash. The
Court of Appeal, affirming the dismissal of the IIED claim, held the defendant’s implied
death threat was not sufficiently outrageous because “the mere fact that the actor knows
that the other will regard the conduct as insulting, or will have his feelings hurt, is not
enough.” (Id. at pp. 495-496.) The court concluded the defendant’s implied death threat
was part of an “exchange of hostile unpleasantries” that did not rise to the level of IIED.
(Id. at p. 498.) In Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1119, 1129, the
Court of Appeal held that the defendant’s comments to the plaintiff that she was “senile”
and a “liar” were “objectively offensive and in breach of common standards of civility”
but “not so egregiously outside the realm of civilized conduct as to give rise to actionable
[IIED].”
Yelling at a 13-year-old rape victim that she is stupid and it was her fault is
markedly worse and far more extreme than offering to buy a plane ticket on an airline
that had recently suffered a crash or commenting that someone is senile and a liar.
TCC presents Jan’s conduct as merely a grandmotherly scolding or a
display of “irascible temper” and asserts the entire incident was simply an emotional
family squabble that should not be the subject of litigation. TCC resorts to hyperbole,
saying “[i]t is no overstatement that the floodgates of litigation would bust open,
16
dominating the dockets of our already burdened civil courts to adjudicate such family
disputes over purely verbal insults.” That is very much an overstatement. But more to
the point, we are not addressing an IIED claim based on a family squabble: Jan might
have been Carra’s grandmother, but the jury found that when Jan flew into her tirade on
April 24, 2006, she was acting in her capacity as an officer or director of TCC. Later in
this opinion, we conclude substantial evidence supported that finding. Because Jan
Crouch was acting in her capacity as an officer or director on April 24, 2006, her
behavior on that day was not merely part of a family squabble.
Besides, TCC’s characterization of Jan’s tirade as a squabble is patently
wrong. A squabble is a quarrel and Tawny and Carra were not quarreling with Jan about
anything. Tawny and Carra went to see Jan to tell her about what had happened to Carra
in Atlanta. Jan blew up at Carra in response.
TCC argues repeatedly that Carra cannot recover for IIED because she did
not prove a special relationship. Carra did not need to plead or prove a special
relationship because she proved extreme and outrageous conduct. “It is only where there
is a special relation between the parties, as stated in § 48, that there may be recovery for
insults not amounting to extreme outrage.” (Rest.2d Torts, § 46, com. d, p. 73.) A
requirement of a special relationship does not appear in the California Supreme Court’s
formulation of the elements of IIED. (See, e.g. Hughes v. Pair, supra, 46 Cal.4th at
pp. 1050-1051; Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 1001;
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) To recover for negligent
infliction of emotional distress, a plaintiff must prove a special relationship with the
defendant (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205) but
Carra sought recovery for intentional infliction, for which proof of a special relationship
is not required.
TCC also argues repeatedly that Jan’s conduct was verbal and “Carra faced
a higher burden than a claim based on words and conduct.” Neither case cited by TCC
17
supports that proposition. (See Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1610;
Yurick v. Superior Court, supra, 209 Cal.App.3d at p. 1123.) Both of those cases simply
restate the proposition that insults, indignities, annoyances, and the like are not actionable
as IIED. Moreover, Jan’s words were joined with conduct: Jan flew into a tirade
(conduct) and yelled (more conduct) at Carra. Even if Jan Crouch just used words, as life
experiences teach, words can be devastating and the source of severe emotional injury.
Her conduct toward Carra was not a mere annoyance or insult, and Carra suffered far
more than hurt feelings and petty indignities. We emphasize that Jan’s statements to
Carra, a 13-year-old girl, that being raped was her fault and she let it happen, were not
mere insults or petty indignities, were not trivial, and certainly were not a mere
grandmotherly scolding.
II.
The Trial Court Did Not Err by Overruling
TCC’s Demurrer.
TCC argues the trial court erred by overruling its demurrer to first cause of
action of the first amended complaint because Carra failed to plead: (1) extreme and
outrageous conduct; (2) vicarious liability for Jan Crouch’s conduct; and (3) intent to
cause, or reckless disregard of the probability of causing, emotional distress. We
conclude the court did not err by overruling the demurrer.
We independently review the ruling on a demurrer and determine de novo
whether the pleading alleges facts sufficient to state a cause of action. (McCall v.
PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Construing the allegations in a
reasonable manner, we assume the truth of the properly pleaded factual allegations, facts
that reasonably can be inferred from those expressly pleaded, and matters of which
judicial notice can and have been taken. (Schifando v. City of Los Angeles (2003) 31
Cal.4th 1074, 1081.)
18
As to the first point, Carra alleged: “Plaintiff had a meeting with Jan in
Jan’s TBN affiliate owned mansion
[3]
located in Newport Beach, CA where she told her
everything that had happened. In response, Jan became furious and began screaming at
[Carra], a thirteen-year-old girl, and began telling her ‘it is your fault.’” Carra also
alleged that Jan knew Carra was “peculiarly susceptible to injuries through mental
distress” because she was 13 years old and had just been raped. These allegations track
the facts proven at trial. We have concluded those facts demonstrate conduct that is
sufficiently extreme and outrageous to state a cause of action for IIED. Carra did not
need to plead a special relationship because she alleged extreme and outrageous conduct.
As to the second point, Carra alleged that Jan Crouch was a TCC director
and was acting within the course and scope of her employment with TCC at all relevant
times. Carra alleged she was raped by a 30-year-old employee of TCC while she was at a
TCC event and went to speak with Jan at her home about what had happened. Those
allegations and facts reasonably inferred from them are sufficient to impose vicarious
liability against TCC for Jan’s conduct. Under the respondeat superior doctrine, an
employer is liable for the torts of its employees committed within the scope of
employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th
291, 296 (Lisa M.).)
As to the third point, Carra alleged: “[Jan Crouch] not only undertook
these actions with, at the very minimum, reckless disregard of the fact that they would
certainly cause [Carra] to suffer severe emotional distress; [Jan Crouch] undertook these
actions with the intent and purpose to cause that harm to [Carra] so she would not report
the incident to the police or news media.” Carra alleged that Jan abandoned Carra’s
3
Carra alleged in her complaints and asserts on appeal that TCC owned Jan Crouch’s
home in Newport Beach. The only evidence of this is Tawny’s testimony that she took
Carra to see Jan at “[h]er TBN home.” Whether TCC owned the home or not is not a
factor in our decision.
19
interests “in favor of the conflicting interests of [TCC].” Those allegations, construed
with allegations of Jan Crouch’s conduct and knowledge that Carra was peculiarly
susceptible to suffering emotional distress, were sufficient to plead the element of IIED
that Jan Crouch acted with the intention of causing, or reckless disregard of the
probability of causing, severe emotional distress.
III.
The Trial Court Did Not Err by Denying TCC’s Motion
for Summary Adjudication.
TCC argues the trial court erred by denying its motion for summary
adjudication because Carra failed to establish a triable issue of material fact that (1) Jan
Crouch’s conduct was extreme and outrageous and (2) Jan Crouch intended to cause, or
recklessly disregarded the probability for causing, severe emotional distress. “‘We
review orders granting [or denying] summary judgment or summary adjudication de
novo. [Citations.] A motion for summary judgment or summary adjudication is properly
granted if the moving papers establish there is no triable issue of material fact and the
moving party is entitled to judgment as a matter of law.’” (Taswell v. Regents of
University of California (2018) 23 Cal.App.5th 343, 350.)
In support of its summary adjudication motion, TCC submitted portions of
Carra’s deposition transcript. Carra’s deposition testimony established that while in
Atlanta she was raped by a 30-year-old TCC employee. Carra testified in her deposition
that she and Tawny met with Jan Crouch on April 24, 2006 and Tawny told Jan what had
happened to Carra in Atlanta. Jan became “agitated” and said, “It’s your fault” and
“Why would you have a man in your room? Why did you think that was okay?” Carra
testified that Jan made her feel like it was her fault and that “I was the one asking for it.”
In opposition to the motion for summary adjudication, Carra submitted
portions of Tawny’s deposition transcript. Tawny testified that when she and Carra met
20
with Jan Crouch on April 24, 2006, Jan “went into a tirade of . . . blaming Carra,” looked
at Carra, and said, “How could you let him do this? You should have known better.”
The deposition transcripts created a triable issue of material fact on both
whether Jan’s conduct was extreme and outrageous and whether Jan Crouch intended to
cause, or recklessly disregarded the probability for causing, severe emotional distress.
IV.
The Trial Court Did Not Err by Denying
TCC’s Motion for Nonsuit
TCC argues the trial court erred by denying its motion for nonsuit because
Carra did not present substantial evidence that: (1) Jan Crouch engaged in extreme and
outrageous behavior during the meeting on April 24, 2006; (2) Carra suffered severe
emotional distress as a result of Jan Crouch’s conduct on April 24, 2006; and (3) Jan
Crouch was acting in the course and scope of her authority as a TCC officer and director
during the meeting on April 24, 2006.
A. Standard of Review
A trial court may grant a motion for nonsuit if the plaintiff’s evidence
would not support a jury verdict in the plaintiff’s favor. (Castaneda v. Olsher (2007) 41
Cal.4th 1205, 1214.) We review an order denying a motion for nonsuit de novo by using
the same standard as the trial court, and will affirm the order so long as substantial
evidence supports the jury’s verdict. (Mendoza v City of West Covina (2012) 206
Cal.App.4th 702, 713; M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202
Cal.App.4th 1509, 1532.) In determining whether the plaintiff’s evidence is sufficient,
we do not weigh the evidence or assess witness credibility. (Castaneda v. Olsher, supra,
41 Cal.4th at p. 1214.) We accept as true the evidence most favorable to the plaintiff,
disregard conflicting evidence, and draw every legitimate inference from the evidence in
the plaintiff’s favor. (Ibid.)
21
B. There Was Substantial Evidence of Extreme and
Outrageous Conduct.
The trial court did not err by denying TCC’s motion for a nonsuit. Carra
and Tawny testified consistently about what Jan said and how she behaved on April 24,
2006. Carra testified that Jan yelled: “How could you be so stupid? How could you
drink alcohol? How could you let this man in your room? How could you, how could
you, how could you, blah, blah, blah. And she eventually said, ‘well, this is really your
fault.’” Tawny testified she told Jan about what had happened to Carra in Atlanta.
Tawny testified that as she went into the details: “Jan raised up in her seat and just
started yelling in a tirade. . . . [¶] [Jan] started yelling: How could you let a stranger in
your room—a strange man in your room? Why would you drink alcohol with a strange
man? You know, didn’t your mom teach you any better? Tawny, aren’t you a better
mother than that? Why didn’t you teach her? [¶] . . . Carra, it’s your fault. You know,
you’re the one [who] let this happen.”
We have concluded that Jan Crouch’s behavior, as related by the testimony
of Carra and Tawny, was sufficiently extreme and outrageous to support recovery for
IIED. The evidence was sufficient to support a jury verdict in Carra’s favor.
C. There Was Substantial Evidence Carra Suffered Severe
Emotional Distress.
TCC argues Carra did not present substantial evidence of severe emotional
distress. This argument is based on Carra’s testimony that “I went [to Jan] feeling
ashamed and embarrassed. And all [Jan] did was confirm that for me which made me
feel like I couldn’t talk about it anymore.” According to TCC, that testimony suggests
Carra’s emotional distress was caused by Jan’s failing to tell her it was not her fault. This
argument seriously misconstrues the cited testimony, particularly when considered in
light of Carra’s other testimony. Carra testified she “was already fragile” and, after being
excused from the meeting on April 24, 2016, “felt broken.” Carra testified: “I had
already felt like it was my fault, which is why it was so hard to tell the story. And after
22
she confirmed that for me, I never wanted to discuss it again. I just couldn’t. . . . I was
fragile before, and I was broken after.” Carra testified that when Tawny later asked to
recount what had happened in Atlanta, it was hard to relive and, “after what happened
with [Jan Crouch] . . . I was absolutely humiliated.”
By telling Carra that being raped was her fault, Jan confirmed Carra’s sense
of shame and belief she was at fault. Carra’s testimony not only demonstrates that Carra
suffered severe emotional distress, but underscores just how bad Jan’s conduct was. Jan
knew, of course, that Carra was only 13 years old, and had just been told what had
happened to Carra in Atlanta. A sentient human being, and certainly an ordained member
of the clergy, would understand that a girl in Carra’s position would hold feelings of
shame and guilt and those feelings could be confirmed and made worse by telling her it
was her fault. Indeed, Carra testified that it was not until this lawsuit was filed that she
“didn’t believe that it was my fault anymore” and “I wasn’t living in shame and guilt
anymore.”
Carra’s testimony alone was enough to avoid nonsuit. “The law in this
state is that the testimony of a single person, including the plaintiff, may be sufficient to
support an award of emotional distress damages.” (Knutson v. Foster (2018)
25 Cal.App.5th 1075, 1096.)
But there was more. Colarusso testified that “Carra’s chaotic adolescence”
and difficulties as a young adult were due not only to being sexually assaulted at age 13,
but to Jan Crouch blaming Carra and failing to tell her that being raped was not her fault.
TCC argues Colarusso did not apportion any particular harm to Jan’s conduct. He did not
have to. His testimony was sufficient to establish that Jan’s conduct on April 24, 2006
was a substantial factor in causing Carra severe emotional distress, manifested throughout
her teenage and young adult life in various kinds of self-destructive behavior.
(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969 [“a cause in fact is
something that is a substantial factor in bringing about the injury”].) The evidence was
23
sufficient to support a jury verdict in Carra’s favor on the issue of severe emotional
distress damages.
D. There Was Substantial Evidence to Impose Respondeat
Superior Liability Against TCC.
The evidence presented by Carra was sufficient to support the jury’s
finding that Jan Crouch acted within the course and scope of her duties as an officer or
director of TCC when she threw her tirade. Under the respondeat superior doctrine, an
employer is liable for the torts of its employees committed within the scope of their
employment. (Lisa M., supra, 12 Cal.4th at p. 296.) An employee’s willful, malicious,
and even criminal torts may fall within the scope of his or her employment, even though
the employer did not authorize the employee to commit crimes or intentional torts. (Id. at
pp. 296-297.)
“Despite the broad range of acts that may give rise to the imposition of
vicarious liability, before such liability will be imposed on the employer there must be a
connection between the employee’s intentional tort and the employee’s work.” (Perry v.
County of Fresno (2013) 215 Cal.App.4th 94, 101.) The employee need not have
intended to further the employer’s interest for the employer to be liable if there is a
“causal nexus” between the intentional tort and the employee’s work. (Lisa M., supra, 12
Cal.4th at pp. 297-298.) The connection or causal nexus required for respondeat superior
liability is the tort must have been engendered by or arise from the work. (Id. at p. 298.)
The required connection has been described as (1) “the incident leading to injury must be
an ‘outgrowth’ of the employment”; (2) the risk of tortious injury is ‘“‘inherent in the
working environment’”‘; (3) the risk of tortious injury is ‘“‘typical of or broadly
incidental to the enterprise [the employer] has undertaken”‘“ or (4) ”the tort was, in a
general way, foreseeable from the employee’s duties.” (Id. at pp. 298-299.)
“These various terms have been condensed into a two-prong disjunctive
test. [Citation.] The conduct of an employee falls within the scope of his or her
24
employment if the conduct either (1) is required by or incidental to the employee’s duties,
or (2) it is reasonably foreseeable in light of the employer’s business.” (Montague v.
AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521.)
Before resting, Carra presented evidence that Jan Crouch was an officer and
director of TCC and was a cofounder of Trinity Broadcasting Network. Portions of Jan’s
deposition testimony were read into evidence during Carra’s case. When asked what her
duties for TCC were in 2006, Jan Crouch testified “[t]he list would be endless.” She
testified she “just was involved in everything and that never stopped to this day” and “I
honestly am involved in almost everything. As co-founder.” Jan testified that she was
responsible for overseeing the telethon in Atlanta in 2006 and “I pretty well make all the
decisions at the telethon when I’m leading one.”
Paul Crouch, Jr. testified he was a member of the TCC board of directors
and chief of staff and knew what Jan’s responsibilities and daily activities were in 2006.
He testified Jan “was the go-to for everybody” and “[s]he was running the show.”
Tawny testified she contacted Jan because “she was on the trip with
[Carra],” and “she was the spiritual advisor who had the power to do something.” (Italics
added.) In her deposition, Tawny testified she took Carra to see Jan because “she was the
person who was ultimately in charge of the telethon, employees, and everybody else, and
her grandmother.” (This portion of Tawny’s deposition transcript was read during
cross-examination of Tawny for impeachment purposes).
At the meeting on April 24, 2006, Jan Crouch exclaimed “I can’t handle
this” and directed Tawny to “call Dottie.” A fair inference, and one which we must draw,
is that by making those statements, Jan was acknowledging she had the authority to deal
with the situation but was delegating to Dottie, who was the TCC station manager in
Atlanta, where the telethon had been held.
Casoria, TCC’s counsel, contacted Jan Crouch about the scope of his
authority in investigating the matter. Jan gave Casoria the authority to do whatever he
25
thought was necessary to protect the best interest of TCC. Casoria testified that in
relation to the investigation of the rape, whenever Jan directed him to do something she
was acting in her capacity as an officer of TCC. Casoria prepared a written report for Jan
after Smith’s employment had been terminated.
This evidence is sufficient to establish a causal nexus between Jan Crouch’s
work and the tort. Jan was a TCC officer and director with an “endless list of duties,”
was the go-to person at TCC, and was in charge of the Atlanta telethon. Carra was raped
by a TCC employee while in Atlanta for the telethon. Tawny took Carra to Jan because
Jan had been in charge in Atlanta and had the power to do something. When Tawny and
Carra met with Jan and told her what had happened, she flew into a tirade, engaged in
extreme and outrageous conduct, and referred Tawny and Carra to Dottie, another TCC
employee. The trial court succinctly and accurately explained why the evidence was
sufficient to impose respondeat superior liability against TCC: “[T]his was at a church
function [and] after the church function [Carra] went to the boss of the church. Where is
there not a relationship between the person and the event and the circumstances under
with which this happened, and going to someone with the express power and authority to
address this situation?”
The fact that Jan Crouch was the one who defined and granted Casoria’s
scope of authority in conducting the investigation supports a finding that when Tawny
and Carra met with Jan to report the incident, Jan was acting within the scope her
authority as a TCC officer or director. The fact that Jan gave Casoria authority to protect
TCC’s best interest, and not that of her granddaughter Carra, is further proof that Jan was
acting in her capacity as an officer or director of TCC in handling the situation, both at
the meeting with Carra and Tawny on April 24, 2006 and in directing the investigation.
It was entirely foreseeable that somebody injured in connection with a
corporate event would report that injury to the corporate official who was in charge of
that event and who was running the show. That is what happened here when Tawny took
26
Carra to see Jan Crouch. We conclude it was therefore also foreseeable that the corporate
official could and would respond to the report in a tortious manner, making the corporate
employer liable under a respondeat superior theory.
V.
The Trial Court Did Not Err by Denying
TCC’s Motion for a JNOV
TCC argues the trial court erred by denying its motion for a JNOV because
there was not substantial evidence to support findings that (1) Jan Crouch engaged in
extreme and outrageous behavior during the meeting on April 24, 2006; (2) Carra
suffered severe emotional distress as a result of Jan conduct on April 24, 2006; and
(3) Jan was acting in the course and scope of her authority as a TCC officer and director.
“A trial court may grant a motion for JNOV only if it appears from the
evidence, viewed in the light most favorable to the party securing the verdict, that there is
no substantial evidence to support it. [Citation.] The standard of review on appeal is the
same as that in the trial court—whether any substantial evidence, contradicted or
uncontradicted—supports the jury’s conclusion.” (Gonzales v. City of Atwater (2016) 6
Cal.App.5th 929, 946-947.) We have concluded with respect to the motion for nonsuit
that Carra produced evidence sufficient to support a jury verdict in her favor that Jan
Crouch engaged in extreme and outrageous behavior, Carra suffered severe emotional
distress as a result, and Jan was acting in the course and scope of her authority as a TCC
officer and/or director. Because the evidence was sufficient to support the jury’s verdict,
the trial court did not err by denying TCC’s motion for a JNOV. (See Crane v. Sears
Roebuck & Co. (1963) 218 Cal.App.2d 855, 858 [motion for JNOV “must rest upon the
same consideration of the evidence as in a nonsuit”].)
27
VI.
The Trial Court Did Not Err by Denying TCC’s
Motion for a New Trial
TCC argues the trial court erred by denying its motion for a new trial
because the evidence was insufficient to support the jury’s findings and, therefore, the
verdict was against the law. We have concluded in connection with TCC’s motion for
nonsuit and motion for a JNOV that substantial evidence supported the jury verdict. The
same holds true for TCC’s motion for a new trial.4
TCC also argues the trial court erred
by denying its motion for a new trial because (1) Colarusso violated a pretrial order and
gave prejudicial opinion testimony on causation and (2) the trial court failed to instruct
the jury on superseding criminal/tortious acts (CACI No. 433).
4
In denying TCC’s motion for a new trial, the trial court well summed up the evidence:
“While [TCC] attempted to characterize the meeting as just a family meeting with raised
voices, with all blame attaching to events before and after that meeting, the facts
presented to the jury indicated otherwise. The conduct of Jan Crouch was described by
Tawny Crouch as a complete yelling tirade against the then 13-year-old [Carra], blaming
her for the fact that she had been molested by a 30-year-old man at a church-related
function. [¶] The jury heard evidence, including from [TCC]’s general counsel, John
Casoria, explaining this outburst in terms of Jan Crouch being concerned to ensure that
there be no negative impact for the church, with apparent complete disregard for the
welfare of [Carra]. [¶] The evidence established that [Carra] exhibited, over a period of
many years, severe emotional dysfunction after April 2006. She herself testified with
respect to the April 24, 2006 meeting, that, ‘I was fragile before and I was broken after.’
[¶] [Carra]’s expert witness, Dr. Colarusso, specifically identified three main reasons for
the disastrous adolescence that this girl’s had: One, the fact that there was a sexual
attack; two, that her grandmother criticized and blamed her instead of consoling her; and,
three, that it was not reported and so therefore the whole process of evaluation,
examination, condolence, and treatment did not occur. [¶] . . . [¶] [Carra]’s disastrous
adolescence was fully presented to the jury. There was evidence sufficient to establish
that the April 24, 2006 meeting directly contributed to that disastrous adolescence and the
court cannot but conclude that $900,000 is an appropriate sum for the past and future
non-economic loss for mental suffering.”
28
A. Standard of Review
“An order denying a motion for new trial will not be set aside unless there
was an abuse of discretion that resulted in prejudicial error.” (Jenks v. DLA Piper
Rudnick Gray Cary US LLP (2015) 243 Cal.App.4th 1, 8.) We accord great deference to
the trial court’s exercise of its wide discretion in ruling on a motion for a new trial. (City
of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) In reviewing an order denying
a motion for a new trial, we review the entire record, including the evidence, and
independently determine whether any error was prejudicial. (Id. at p. 872.)
B. Colarusso’s Testimony Did Not Violate the Trial Court’s
Pretrial Order, and TCC Forfeited Its Challenge to
Colarusso’s Testimony
After the Evidence Code section 402 hearing, the trial court issued an order
that Colarusso would be permitted to testify only to (1) ”his observation as to the
symptoms consistent with [there] having been a sexual assault or potential rape” and
(2) that “the behavior of Jan Crouch was a substantial factor in regards to the [IIED] and
negligence claims.” The court stated on the record that Colarusso “cannot be asked to
opine that any action or inaction after the events comprising the IIED and the negligent
failure to report, caused or contributed to [Carra’s] condition[] or damages.” TCC argues
Colarusso’s trial testimony violated this order, and TCC suffered prejudice as a result.
At page 59 of the appellant’s opening brief, TCC identifies three passages
from Colarusso’s trial testimony that it contends violated the trial court’s order. First,
Colarusso testified: “Carra’s chaotic adolescence is definitely due to the sexual abuse
and the family’s reaction to the sexual abuse, by not telling her it wasn’t her fault, by not
taking her for a rape exam, by not following up and getting her treatment.” Second,
Colarusso testified his opinion as to the causes of Carra’s behavior after April 2006 was:
“One, that she was sexually abused by a 30-year-old man; two, that her grandmother
blamed it on her; and three, that no one . . . reported it and took her to get a rape
29
examination, supported her that it was not her fault, and got her the treatment that she
needed.” Third, Colarusso testified about a person’s developmental history in general
and Carra’s developmental history until age 13.
Colarusso’s testimony was consistent with the trial court’s order.
Colarusso testified that Carra’s behavior was caused by Jan Crouch telling Carra it was
her fault and by her family’s failure to report the situation and take her for treatment.
That testimony was expressly permitted by the trial court’s order. The court stated on the
record that Colarusso could testify to events in 2006, that is, “intentional infliction of
emotional distress because of what Jan Crouch has alleged to have done right at that time,
and the negligent failure to report at that time.” Colarusso did not testify as to the nature
of the sexual assault or that Carra had been raped (subjects prohibited by the court’s
order) or that the lack of family support in the years following the incident caused or
contributed to Carra’s injuries (also prohibited by the order). Consistently with the order,
Colarusso testified that Jan Crouch’s conduct on April 24, 2006 was a substantial factor
in causing Carra’s injuries.5
Reasonably read, Colarusso’s testimony about the reaction
of Carra’s family, and the family’s failure to take her for a rape examination and get her
treatment, concerned events in April 2016, and not the years following—the so-called “7
years of silence” referred to in the trial court’s order.
5
TCC contends that Carra’s trial counsel “ma[d]e matters worse” by asking the jury in
closing argument to award damages against TCC for Carra’s past and future harm caused
by the sexual assault. To the extent TCC intends this contention to be a distinct issue or
point of error, it is forfeited. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [“Failure
to provide proper headings forfeits issues that may be discussed in the brief but are not
clearly identified by a heading”].) We have nonetheless considered the cited passage of
counsel’s closing argument and do not interpret it as a request that the jury award improper
damages. Moreover, TCC did not object to this argument or request an admonition. (See
Cassim v. Allstate Ins. Co.(2004) 33 Cal.4th 780, 794-795; see also People v. Seumanu
(2015) 61 Cal.4th 1293, 1341 [“‘It is now well settled that an appellate court will not
consider a claim as to the misconduct of counsel in argument unless objection is so
made’”].)
30
Colarusso’s challenged testimony, even if beyond the scope of the court’s
order, is not reversible error. Error in the admission of evidence warrants reversal only if
the error “resulted in a miscarriage of justice” (Evid. Code, § 353, subd. (b)); that is, it is
reasonably probable a result more favorable to the appealing party would have been
reached in absence of the error (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512,
527). To the extent Colarusso testified about things people said or did after April 2006,
his challenged testimony not only was harmless, but in large part helpful to TCC.
Colarusso did not pin all of the blame for Carra’s emotional distress on Jan’s behavior;
instead, he testified that Carra’s troubles were also caused by Smith, as well as by Tawny
and Paul Crouch, Jr., who did not report the rape or seek treatment for Carra. Indeed, the
trial court observed that the relevance of testimony about events occurring after 2006 and
the family’s lack of support “is defense if not offensive.” The jury found in TCC’s favor
on Carra’s claim for negligent failure to report.
Further, we observe, TCC did not make contemporaneous objections to or
motions to strike any of the challenged testimony. The failure to object or move to strike
evidence at trial forfeits any challenge to the evidence on appeal. (Evid. Code, § 353,
subd. (a); Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726; see People v. Townsel
(2016) 63 Cal.4th 25, 45-46 [failure to make contemporaneous objection to expert
testimony forfeits claim of error]; People v. Anderson (2001) 25 Cal.4th 543, 586 [“a
challenge to the admission of evidence is not preserved for appeal unless a specific and
timely objection was made below”].) Issues pertaining to the permitted scope of
Colarusso’s testimony were complicated, and contemporaneous objections would have
permitted the trial court to clarify the scope of its order, create a better record for appeal,
correct errors in the first instance, and mitigate any potential prejudice. (See People v.
Mendez (2019) 7 Cal.5th 680, 693.) In making its ruling, the trial court stated that in
applying the order to Colarusso’s testimony, the court “will listen to the questions and I
will hear the objections.”
31
Rather than pose contemporaneous objections, TCC waited and brought a
motion for a mistrial; however, by that time, any error had been forfeited. TCC did move
in limine to exclude Colarusso’s testimony, but that too was ineffective to preserve
TCC’s claim that specific parts of Colarusso’s testimony exceeded the scope permitted by
the trial court’s order. A motion in limine to exclude evidence is sufficient to preserve an
objection if the motion (1) is directed to a particular, identifiable body of evidence;
(2) states a specific legal ground for exclusion that is subsequently raised on appeal; and
(3) is made at a time before or during trial when the trial court can determine the
evidentiary issue in its appropriate context. (People v. Morris (1991) 53 Cal.3d 152, 190,
disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
“When such a motion is made and denied, the issue is preserved for appeal.” (People v.
Morris, supra, at p. 190.)
But the ground raised by TCC on appeal for challenging Colarusso’s
testimony is not the same as any of the grounds stated in the motion in limine. TCC
contends Colarusso’s testimony exceeded the scope permitted by the trial court’s order, a
ground obviously not made in TCC’s motion in limine. It was therefore incumbent upon
TCC to make contemporaneous objections to or move to strike Colarusso’s challenged
testimony on the ground it violated the trial court’s order. Failure to so object deprived
Carra the opportunity to create a better record. (See Duronslet v. Kamps, supra, 203
Cal.App.4th at p. 726 [“Lack of such objection deprives the proponent of the evidence an
opportunity to establish a better record or some alternative basis for admission”].)
C. TCC Was Not Entitled to CACI No. 433.
TCC argues the trial court erred by rejecting its request to instruct the jury
with CACI No. 433. “The propriety of jury instructions is a question of law that we
review de novo.” (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th
72, 82.) “Upon request, a party is entitled to nonargumentative and correct instructions
on every theory advanced by that party if the theory is supported by substantial
32
evidence.” (Chanda v. Federal Home Loans Corp. (2013) 215 Cal.App.4th 746, 755.) In
determining whether an instruction should have been given, we review the evidence in
the light most favorable to the requested instruction. (Ibid.)
CACI Nos. 432 and 433 pertain to third party conduct or
intentional/criminal conduct as a superseding intervening cause absolving the initial
tortfeasor of any liability. CACI No. 432 pertains to later third party negligent conduct
while CACI No. 433 pertains to later third party intentional or criminal conduct.
CACI No. 433 reads:
“[Name of defendant] claims that [he/she/it] is not responsible for [name of
plaintiff]’s harm because of the later [criminal/intentional] conduct of [insert name of
third party]. [Name of defendant] is not responsible for [name of plaintiff]’s harm if
[name of defendant] proves [both/all] of the following:
“[1. That [name of third party] committed [an intentional/a criminal] act;]]
“2. That [name of third party]’s [intentional/criminal] conduct happened
after the conduct of [name of defendant]; and
“3. That [name of defendant] did not know and could not have reasonably
foreseen that another person would be likely to take advantage of the situation created by
[name of defendant]’s conduct to commit this type of act.”
The trial court instructed the jury with CACI No. 432, modified to identify
the relevant third parties as Tawny and Paul Crouch, Jr. The trial court denied TCC’s
request to give CACI No. 433 and TCC’s request to modify CACI No. 432 to include
“other third parties.”
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6
TCC suggests the court erred by refusing to modify CACI No. 432 in this way. The
version of CACI No. 432 given in this case was directed only to Carra’s cause of action
for negligent reporting. Because the jury found against Carra on that cause of action,
TCC suffered no prejudice by the trial court’s rejection of its proposed modification to
CACI No. 432.
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The trial court did not err by denying TCC’s request to instruct with CACI
No. 433 because, we conclude, TCC was not entitled to a superseding cause instruction
for Carra’s IIED cause of action. “[T]he defense of ‘superseding cause[]’ . . . absolves a
tortfeasor, even though his conduct was a substantial contributing factor, when an
independent event [subsequently] intervenes in the chain of causation, producing harm of
a kind and degree so far beyond the risk the original tortfeasor should have foreseen that
the law deems it unfair to hold him responsible.” (Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 573, fn. 9.)
California law accepts and follows the Restatement of Torts on the issue of
superseding cause. (Stewart v. Cox (1961) 55 Cal.2d 857, 863-864.) On that subject,
section 448 of the Restatement Second Torts states: “The act of a third person in
committing an intentional tort or crime is a superseding cause of harm to another
resulting therefrom, although the actor’s negligent conduct created a situation which
afforded an opportunity to the third person to commit such a tort or crime, unless the
actor at the time of his negligent conduct realized or should have realized the likelihood
that such a situation might be created, and that a third person might avail himself of the
opportunity to commit such a tort or crime.” Comment a to section 448 explains, “The
rule stated in this Section applies when the actor’s conduct creates a situation which is
utilized by a third person to inflict intentional harm upon another or provides a temptation
to do so.” (Rest.2d Torts, § 448, com. a, p. 481.)
TCC’s theory for being entitled to CACI No. 433 is “[t]here was substantial
evidence of multiple causes of Carra’s harm, including Smith, Tawny, Paul Crouch[, Jr.],
and post-2006 rapists and sexual abusers.” TCC argues that “[c]onsequently, the jury
was allowed to hear evidence of post-April 24, 2006 criminal and tortious conduct, but
not hold responsible all the respective perpetrators; and was permitted to assign
disproportionate responsibility to Jan, and therefore [TCC], for such later events.” TCC’s
argument amounts in large part to a concurrent/multiple causation or comparative fault
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theory. The jury was instructed with CACI No. 430 that a substantial factor in causing
harm “does not have to be the only cause of the harm.” TCC stipulated to this
instruction.
CACI No. 433 is neither a concurrent causation nor a comparative fault
instruction allowing the jury to apportion relative degrees of fault. CACI No. 433, a
superseding cause instruction, applies when a third party takes advantage of or utilizes a
situation created by the tortfeasor’s conduct to engage in intentional or criminal conduct
inflicting harm on another person. (CACI No. 433; see Rest.2d Torts, § 448, com. a.
p. 481.) TCC does not argue that any of the men who later raped or abused Carra did so
by taking advantage of the situation created by Jan Crouch on April 24, 2006. That could
not have been the case because those subsequent acts of abuse occurred long after Jan’s
conduct on April 24, 2006 by people who had no idea of anything Jan might have done or
the situation she had created. For example, there was no evidence that a later abuser
knew that Jan’s conduct had placed Carra was in a damaged emotional state and took
advantage of that damaged emotional state to intentionally harm Carra. CACI No. 433
simply did not fit this case.
Superseding cause absolves the tortfeasor of any and all liability. None of
the conduct of the third parties identified by TCC could have been a superseding cause
that would have completely absolved Jan Crouch—and through her, TCC—of liability
for IIED. Carra suffered severe emotional distress immediately upon the April 24, 2006
meeting with Jan. The multiple/concurrent cause instruction dealt with later
nonsuperseding causes of Carra’s emotional distress. Even if those later abusers caused
Carra emotional distress for which TCC was not responsible, TCC would still be liable
for whatever emotional distress its intentional conduct was a substantial factor in causing.
Finally, to the extent the jury awarded Carra damages for which TCC was
not legally responsible, the trial court corrected the problem by reducing her damages.
The trial court granted TCC’s motion for new trial based on excessive damages. The
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court concluded the jury’s award of $2 million must reflect the jury’s finding as to the
sum total of Carra’s emotional distress damages from all sources. The court reduced the
damages to $900,000 because that was the amount the court attributed to Jan’s conduct
on April 24, 2006. Thus, by granting the motion and reducing the damages, the court
eliminated damages caused by superseding intervening causes from any source.
Outcome: The Amended Judgment, the order denying the motion for a JNOV, and the order denying the motion to vacate judgment are affirmed. Respondent to recover costs
on appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: