Updated October 10 with full response court document
ORANGE, California, October 9. MARK Schubert blasts Dia Rianda's wrongful termination in his response to be filed officially today. Rianda filed suit last month claiming that Schubert had wrongfully terminated her as a coach at the Golden West Swim Club while he served as the head coach of the club.
Schubert's lawyer Richard Foster first claims that the Golden West Swim Club, and not Schubert as Rianda's supervisor can be listed as a defendant in a wrongful termination lawsuit. Meanwhile in his response, Foster also claims that Rianda used the privilege of the court system to legally, yet unethically, defame Schubert as claims filed within a lawsuit cannot be considered defamation according to Foster's response.
“When an attorney files a complaint with the Court, he or she certifies to the Court that (i) the allegations in the complaint have evidentiary support, (ii) the claims are warranted by existing law, and (iii) that the complaint was not presented for an improper purpose. Civil Code ? 128.7. In this case, plaintiff and her counsel have ignored all of these criteria. The complaint is replete with distortions and out-and-out lies,” Foster's response states.
“Under clear California law, Plaintiff cannot assert her claims against Schubert; she can only assert them against her employer, Golden West Swim Club,” Foster's response continues. ” Yet, although she has no conceivable claim against him personally, Plaintiff named Schubert as a defendant and included lengthy and false allegations specifically designed to unfairly damage his reputation and his professional standing, knowing that if her statements were made in any other forum, she would be liable for defamation. The manner in which this complaint was drafted evidences that Plaintiff and her attorney are on a mission to unfairly destroy Schubert's reputation regardless of the truth and in disregard of clear legal principles and ethics.”
In the response, Schubert claims that Rianda's lawsuit stating that Schubert had joined with USA Swimming in covering up inappropriate activity by former FAST coach Sean Hutchison, going so far as to allege that Schubert had threatened USA Swimming with blackmail regarding Hutchison's activities.
“None of this is true,” Foster's response states. “Schubert never hired a private investigator and never had any evidence that Hutchison had an inappropriate sexual relationship with one of his swimmers. Plaintiff's allegations are simply false. USA Swimming conducted a thorough investigation of Hutchison and found no evidence of inappropriate behavior.”
“Plaintiff then alleges that Schubert entered into a confidential agreement with USA Swimming whereby USA Swimming 'bought him off' from disclosing any further information about sex abuse by swim coaches,” Foster's response continues. “Incredibly, she alleges that in exchange for money, Schubert agreed not to divulge any further information about sexual abuse by any swim coaches. This is absolutely false. While Schubert did enter into a settlement agreement with USA Swimming, it had no clause preventing Schubert from reporting sex abuse. To the contrary, as publicly stated by USA Swimming, Schubert agreed to follow all of USA Swimming's regulations, including the duty to promptly report evidence that any coach was sexually abusing a swimmer.”
Rianda also claimed that Schubert had direct knowledge of Rick Curl's sexual abuse of one of his swimmers in the 1980s.
“Curl was not associated with Schubert, but the swimmer in question swam for Schubert years later,” Foster's response states. “By that time, the swimmer had notified her parents of the abuse and retained an attorney, who negotiated a confidential settlement with Mr. Curl. As stated in the complaint, Schubert notified USA Swimming of the abuse, as did the swimmer, and USA Swimming subsequently banned Mr. Curl from coaching for life. Plaintiff's claim that Schubert concealed this information is patently false.”
Foster's response also counters Rianda's allegation that Bill Jewell engaged in inappropriate activity.
“Plaintiff's allegations concerning Bill Jewell are equally distorted,” Foster's response states. ” All conduct of which Schubert was aware was in open view. While Jewell may have touched some swimmers, all such touchings were also in open view, in the act of coaching and in line with USA Swimming's guidelines.”
Foster then goes on the offensive, detailing reasons why Rianda was legitimately terminated.
“Plaintiff was terminated for legitimate reasons,” Foster's response states. “She created problems with the Golden West Swim Club's Board of Directors by being uncooperative, rude and by making negative comments behind their backs. Her conduct as a coach was substandard. She bullied swimmers, was rude to potential new club members and sent condescending and rude emails to club members. She was extremely unpopular and unaccepted by the club's senior swimmers. Notably, she was rude to Golden West College's staff and water polo coaches, threatening the club's future use of the pool.”
This response draws a stark contrast from the narrative described by Rianda's lawyer Robert Allard in his initial summons and complaint against Schubert.
Foster takes a direct shot at Allard in his response on behalf of Schubert as well.
“Plaintiff and her counsel have alleged claims against Schubert that have no basis in the law,” Foster's response states. “… all of her claims can only be brought against her employer, Golden West Swim Club. They are not claims that can be brought against Schubert, who was and is an employee of the club. With minimal research, an entry level attorney could have figured that the law does not allow Plaintiff to sue Schubert individually on the claims set forth in her complaint. Plaintiff's attorney was so intent on disparaging Schubert, and in the process put himself in the limelight, that he either failed to do the minimum research required of him or he intentionally named Schubert individually for the sole purpose of disparaging his reputation.
“Plaintiff's complaint is a disgusting attack on a highly decorated and extremely successful swim coach,” Foster's response continues. “Under the law, Plaintiff and her counsel can say anything they want in the complaint, without worrying about Schubert suing them for defamation; the law provides a privilege for such statements. But this doesn't make it right. A reading of the complaint compels the reader to conclude that the motives of Plaintiff and her counsel were unbridled by the truth or the law. Plaintiff and her counsel each had one motive; to unfairly destroy Schubert's reputation.”
The rest of the response gets into detailed case law and precedent why Foster believes that the lawsuit has no legal legs to stand on.