Schubert Formally Files Response To Charges [Full Document Included]

by Ceci Christy 9

October 12th, 2012 National, News

On Thursday, Mark Schubert formally filed a response in the Orange County Superior Court to the wrongful termination lawsuit that was filed against him and other related to the Golden West Swim Club by Dia Randa. Read about that original filing here. Note that on October 3rd, about a week after her original filing, Randa amended her complaint to include claims of  Fraudulent Inducement under Labor Code § 970, Negligent Misrepresentation and General Negligence.

We have received a copy of the document, Schubert’s motion to dismiss Rianda’s claims against him.  This is Schubert’s first response to her. Read it here. 

The legal process can be confusing and challenging to comprehend.  Such is the case of Dia Rianda vs. Golden West Swim Club, Golden West Swim Club Support Group, Mark Schubert, et al.  Rianda certainly has potential wrongful termination claims, breach of employment contract claims, and retaliation claims against both Golden West entities, but she does not appear to have viable claims against Mark Schubert under California employment law in my opinion. For this reason, Schubert’s attorney recently has filed a request with the court to dismiss Rianda’s claims against Schubert, because California law does not give her the right to sue him individually.

In most states, the procedural rules make it difficult for a judge to grant a defendant’s (the party being sued) request to dismiss the case against the defendant without a trial.  The rules tend to favor plaintiffs (the suing party) so that they may have their day in court.  Generally, the standard for dismissing a case is to take all the statements made in the complaint as being true. In other words, the plaintiff’s statements are given the presumption of factual truth and the court determines whether these “true facts” support the elements of the law from which the plaintiff wants to recover.  This standard is difficult for a defendant to overcome.  Schubert’s request to dismiss Rianda’s claims against him should be successful, however. While the court will give the presumption of factual truth to her statements of fact (and these facts may very well be truthful), these facts do not appear to support her claims of breach of contract and wrongful termination and retaliation against Schubert personally under California law.

Employment issues are a matter of state law, and each state’s laws can vary in this area.  Generally speaking, however, an employee does not have a recoverable claim against the boss or CEO or head coach if that person is acting within the scope of his employment.  An action against the boss only stands if the boss has acted outside the scope of employment and has committed an independent tort.  An example of this difference is a sexual harassment lawsuit.  When a boss or supervisor sexually harasses an employee, the employee can maintain a claim against the boss since he was the acting party and his actions were not related to his role as the boss.  The employee also may sue the employer for creating or allowing a hostile workplace and being vicariously liable for the employee’s actions.

In her lawsuit, Rianda explicitly states that when Schubert hired her he was acting in his capacity as CEO and Head Coach of Golden West Swim Club: plaintiff “entered into an oral employment agreement with Schubert (in his position as GWSC Head Coach and CEO).”  Additionally, Rianda states that Schubert assured her she “would not be terminated by GWSC without good cause.”  She also points out that “[p]ursuant to the GWSC by-laws, Schubert, as the GWSC Head Coach and CEO, had exclusive authority to hire GWSC’s assistant coaches … and determine their powers, duties and compensation.”  Rianda’s own words undermine her claims against Schubert as an individual acting outside the scope of his employment with GWSC.  It would appear that when Schubert terminated Rianda, he was doing so on behalf of his employer, who was also Rianda’s employer and supervisor. Thus, Schubert’s motion to dismiss the claims against him may be successful when the court hears the motion in November.

In Schubert’s motion to dismiss the claims, he argues not only that California law does not support her claims, but also that her complaint is presented for an improper purpose and that her allegations have no evidentiary support. Schubert’s support for this argument rests on his assertion that most of Rianda’s statements about him personally are “distortions and lies.”  The judge and jury are the triers of fact in lawsuits and they determine which facts presented by each party are “distortions and lies.”  By hearing all of the information, the judge and jury sort through the facts to determine the truth, or the closest proximity to the truth.  Such an argument is not likely to prevail.

Schubert also asserts that Rianda is using her lawsuit as a method of defaming Schubert’s character.  Unfortunately, many times the parties in a lawsuit do have their characters maligned.  In this case, Rianda throws in many factual assertions that appear not to relate to her claims against Schubert or the other parties.  These assertions seem to address matters involving USA Swimming and its relationship with Schubert and Schubert’s interactions and knowledge of other coaches who have been investigated by USA Swimming.  Rianda’s integration of these facts into her lawsuit may be to support her view that Schubert’s decisions as CEO and Head Coach of GWSC were driven by his personal desires and agenda, not in his capacity as her supervisor.

Continue to watch closely as this case progresses to see if you can determine who has the better arguments:  Schubert with what appears to be the law on his side to remove him from this suit, or Rianda who has thrown in numerous facts hoping the court decides to hear evidence of them all to determine if they support her legal claims against Schubert.

The statements contained in this article are not intended to serve as legal advice for anyone.  Should you need legal advice, please consult an attorney.

Leave a Reply

9 Comments on "Schubert Formally Files Response To Charges [Full Document Included]"

Sort by:   newest | oldest | most voted

Well,Mark was the ftrst to get a 50 meter pool in South Orange County at Mission Viejo. In those days it grew like Las Vegas it wasn’t to live there and folks were moving out of La County and other states then,no wonder Mark had the number program from 1976 to 1984 at Mission Viejo. Mark only has one really elite swimmer Cindy Tran who was not developed by him. What ever happens happens.

So what you are telling me is that if he in fact did not do enough for Kelly Davies (along with what this lawsuit claims), its okay because he brought a pool to south orange county, had a hugely successful program and developed a lot of champions?…

“No, no. Its cool, he was really successful, so the neglect of a swimmer’s safety and berating anyone in his way at meets is TOTALLY justified. Look at all those medals!” Whatever…


I mean expensive to live there.

Not entirely accurate. An attorney has an ethical duty to make accurate factual allegations and viable claims within a complaint. An attorney who files an inflammatory, inaccurate, or baseless set of facts or allegations can be sanctioned by the court and can be subject to disciplinary action by a state bar. The attorney may also be sued for abuse of process.

John Anthony

The mere fact that a lawsuit includes incredible or ridiculous allegations does not mean it is subject to dismissal before discovery-it’ s hard to get a judge to dismiss a case right shortly after it is filed. That’s what the commentator was saying.Once the facts are all out and it can be shown that the allegations were not made in good faith or the lawyer knew that there was no legitimate factual or legal basis for the claims sanctions may be assessed. But they are tough to get.

A motion to dismiss can easily be granted in this case because Cakifornia law does not allow an individual to be sued in an employment dispute. allard can say anything he wants. It doesn’t matter because the law doesn’t allow the claims to proceed.

But he is the “Lawyer of the Year!”


About Ceci Christy

Ceci Christy is the mother of two teenage daughters and has held the proud title of swim mom for nine years. She volunteers extensively at her daughters' swim club in Atlanta. While being a mother is her most rewarding job, Ceci also serves as a pro bono child advocate in …

Read More »