A California appellate panel has thrown a lifeline to a lawsuit by former University of California, Berkeley swimmers, ruling that questions about when each athlete realized they were harmed are factual issues that belong in the trial court. The complaint accuses then-coach Teri McKeever and The Regents of the University of California of enabling years of verbal and emotional abuse. McKeever was fired after a university investigation in January 2023.
As reported by Metropolitan News-Enterprise, Division One of the First District Court of Appeal reversed a judgment of dismissal and held that the issue of the delayed-discovery rule should be decided as to each plaintiff. The panel’s opinion said the first amended complaint survives at least to the point where individualized factfinding can determine when the statute of limitations began to run. The ruling sends the case back to Alameda County Superior Court for further proceedings.
Appeal Sends Case Back to Alameda County
The lawsuit, Touhey v. The Regents of the University of California (Alameda County Superior Court case no. 23CV032249), was filed in May 2023 and lists 18 former swimmers as plaintiffs, according to Boucher.la. Plaintiffs say they only understood the scope of the conduct after a May 2022 Orange County Register investigation and the university’s publication of a redacted personnel report in January 2023, which the complaint says prompted many to recognize their injuries as tied to institutional misconduct. As the complaint explains, earlier experiences were viewed by the athletes as the cost of elite sport until media and investigatory disclosures reframed those memories as abuse.
What Plaintiffs Allege
The complaint accuses the Regents of negligence, negligent supervision or retention, negligent failure to warn or train, negligent infliction of emotional distress, violations of the California Equity in Higher Education Act, and ratification of abusive conduct, and seeks damages for emotional and psychological harms. Plaintiffs describe repeated public shaming, intimidation, and pressure to compete while injured or ill as core elements of the alleged abuse, according to the filings. The suit targets institutional failures as well as the coach’s conduct.
Coach McKeever’s Firing and Background
Teri McKeever coached Cal’s women’s swimming program for nearly three decades and served as the head coach of the U.S. women’s Olympic team in 2012. She was removed from her post on Jan. 31, 2023, after an independent investigation, and the university’s findings, summarized in a redacted report produced after the probe, cited discrimination and verbally abusive conduct, per the investigation documents. News outlets, including ESPN, covered the firing at the time.
The Law: What "Delayed Discovery" Means
Under California law, the delayed discovery rule can postpone the accrual of the statute of limitations until a plaintiff knows or reasonably should know of both the injury and its wrongful cause, meaning the clock may start later than the date of the underlying conduct. The Judicial Council’s materials summarize the test from cases such as Jolly v. Eli Lilly and note that whether a plaintiff should have discovered the cause of action is usually a factual question for the trier of fact. Appellate decisions, for example, those collected by Justia, emphasize that courts should be cautious about ruling on delayed discovery as a matter of law when the record supports multiple reasonable conclusions.
One member of the appellate panel, Justice Monique S. Langhorne Wilson, wrote that the first amended complaint meets the delayed discovery rule test, while Acting Presiding Justice Kathleen Banke stressed that the applicability of the rule must be assessed separately for each plaintiff, according to Metropolitan News-Enterprise. Those differing emphases highlight why the appeals court remanded the case: the record, the court suggested, contains facts that could support tolling for some plaintiffs but not necessarily for all.
With the appeals court decision in place, the case returns to Alameda County Superior Court for individualized factfinding on when each plaintiff discovered, or should reasonably have discovered, the connection between their injuries and the university’s alleged failures. That inquiry will determine which claims, if any, remain timely and proceed to discovery and potentially trial. Observers say the ruling may affect how courts handle other campus-era abuse claims that were publicized years after the conduct occurred.
For now, the revived suit keeps pressure on institutional accountability at Cal and underscores how investigative reporting and internal probes can reshape the legal landscape for long-dormant campus claims. Plaintiffs’ lawyers will get an opportunity to press their case in the trial court, and defendants will have the chance to show when a reasonable inquiry should have put plaintiffs on notice that they had a legal claim.
