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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.)

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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.”

6



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.

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.