Brown v. USA Taekwondo ( 2019 )

Filed 10/8/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
YAZMIN BROWN et al., B280550
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC599321)
v.
USA TAEKWONDO et al.,
Defendants and
Respondents.
APPEAL from the judgments of the Superior Court of Los
Angeles County, Michael P. Vicencia, Judge. Affirmed in part;
reversed in part and remanded.
Estey & Bomberger, Stephen J. Estey; Corsiglia McMahon
& Allard, B. Robert Allard; Williams Iagmin and Jon R. Williams
for Plaintiffs and Appellants.
Kjar, McKenna, Stockalper, Patrick E. Stockalper and
Mina M. Morkos for Defendant and Respondent USA Taekwondo.
Clyde & Co., Douglas J. Collodel, Margaret M. Holm and
M. Christopher Hall for Defendant and Respondent United
States Olympic Committee.
Plaintiffs Brianna Bordon, Yazmin Brown, and Kendra
Gatt filed this action against their taekwondo coach, Marc
Gitelman, the United States Olympic Committee (USOC), USA
Taekwondo (USAT), and others arising from Gitelman’s sexual
abuse of the then 15- and 16-year-old plaintiffs leading up to
Gitelman’s arrest and later felony convictions. Plaintiffs appeal
from a judgment of dismissal entered after the trial court
sustained without leave to amend the demurrers filed by USOC
and USAT to plaintiffs’ first amended complaint alleging causes
of action for negligence, negligent hiring and retention, and
negligent and intentional infliction of emotional distress.
On appeal, plaintiffs contend USOC and USAT are liable
for negligence because the organizations failed to protect
plaintiffs from Gitelman’s sexual abuse. We conclude USAT,
which is the national governing body for the Olympic sport of
taekwondo, had a special relationship with Gitelman because
Gitelman was required to register with USAT to coach taekwondo
at USAT-sponsored competitions, athletes could only compete in
competitions with registered coaches, USAT could (and later did)
implement policies and procedures to protect athletes from sexual
abuse by their coaches, and USAT could (and later did) bar
Gitelman from coaching athletes at taekwondo competitions for
his violations of USAT’s policies and procedures. USAT was
therefore in a unique position to protect taekwondo youth
athletes from harm.1 Our examination of the Rowland2 factors
supports a finding on the alleged facts that USAT had a duty to
implement and enforce policies and procedures to protect youth
athletes from foreseeable sexual abuse by their coaches. Because
1 By “youth athletes” we mean athletes who are minors.
2 Rowland v. Christian (1968) 69 Cal. 2d 108, 113 (Rowland).
2
USAT demurred on the direct negligence cause of action based
solely on the lack of a duty of care, we reverse the trial court’s
dismissal of this cause of action against USAT.
By contrast, USOC did not owe a duty to plaintiffs because
it did not have a special relationship with Gitelman or plaintiffs.
Although USOC had the ability to control USAT, including
requiring it to adopt policies to protect youth athletes, it did not
have direct control over the conduct of coaches.
Plaintiffs also assert USOC and USAT are vicariously
liable for Gitelman’s sexual abuse based on theories of joint
venture, respondeat superior, and ratification. But plaintiffs
cannot maintain their derivative claims because the facts as
alleged do not establish Gitelman was in a joint venture or had
an agency or employment relationship with either USOC or
USAT. Plaintiffs also fail to allege facts sufficient to state a
claim for the intentional infliction of emotional distress.
We affirm the judgment dismissing USOC from the action.
We reverse the judgment of dismissal as to USAT and remand for
further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. The First Amended Complaint
Plaintiffs filed this action on October 29, 2015. On
October 7, 2016 plaintiffs filed the operative first amended
complaint against Gitelman, USOC, USAT, NV Taekwondo
Training and Fitness Center (NVT), Latin American
3
International Taekwondo Federation, Ltd. (LAITF), and
California Unified Taekwondo Association (CUTA).3
1. The parties
Plaintiffs were 15- and 16-year-old female taekwondo
athletes who were coached by Gitelman. Gitelman was the owner
or employee of NVT in Las Vegas, Nevada, but resided in
California. Plaintiffs allege USOC has exclusive authority to
certify or decertify national governing bodies for Olympic sports
in the United States. USOC certified 49 national governing
bodies in the United States. As the national governing body for
the Olympic sport of taekwondo, USAT requires athletes to be
members of USAT and to train under coaches registered with
USAT. As alleged, USAT “formulates the rules and implements
the policies and procedures for local taekwondo studios
throughout the United States and is further responsible for
overseeing and enforcing the [c]ode of [e]thics for the sport of
taekwondo.” USOC and USAT sponsored and promoted
taekwondo competitions attended by plaintiffs and Gitelman.4
3 The factual background includes the facts as alleged in the
first amended complaint. Plaintiffs allege LAITF is the USAT
state association for Nevada, and CUTA is the USAT state
association for California. Only USOC and USAT are parties to
this appeal.
4 Plaintiffs allege the defendant organizations, including
USOC, USAT, NVT, LAITF, and CUTA, acted as the agents and
employees of each other, were engaged in a joint venture, all
promoted and benefitted from Olympic sports, and had
knowledge of sexual abuse in Olympic sports. For simplicity, we
focus on the allegations against USOC and USAT.
4
2. USOC’s and USAT’s prior knowledge of sexual abuse
in Olympic sports, including taekwondo, and USAT’s
adoption of a safe sport program
Plaintiffs allege that since at least the 1980’s USOC had
actual knowledge that numerous female athletes were raped at
the Olympic training centers in Marquette, Michigan; Colorado
Springs, Colorado; and Lake Placid, New York. In 1992 the
USAT delegation was evicted from their rented house in
Barcelona after the Spanish landlord walked in on the national
team coach having sex with a young female Olympian. Plaintiffs
allege upon information and belief sexual molestation of youth
athletes by coaches credentialed by national governing bodies
was so rampant that by 1999 USOC required all national
governing bodies to have insurance to cover sexual abuse by
coaches. In 1999 USAT purchased sexual abuse insurance. In
2007 Gary Johanson, a USOC employee, knew of at least one
rape of a female taekwondo youth athlete at the Olympic training
center in Colorado Springs.
Plaintiffs allege further, “By 2007 sexual abuse of minors
by figures of authorities, like priests, coaches, and scout leaders
was a widely known risk in American society. Plaintiffs are
informed and believe and thereon allege that at all times herein
mentioned, defendants USOC, CUTA, NVT, LAITF, and USAT
were aware that female taekwondo athletes, and Olympian level
athletes in general were frequently victims of sexual molestation
by their coaches yet did nothing to protect these athletes from
such abuse. Plaintiffs are informed and believe and thereon
allege that defendants regularly received complaints from
athletes or their parents regarding improper sexual conduct by
coaches and that these complaints were discussed in ‘executive
5
sessions’ of defendants USOC, CUTA, NVT, LAITF, and USAT
various boards of directors.”
In 2010 a USOC task force required all national governing
bodies to adopt a “safe sport program” by 2013 to protect athletes
from sexual abuse. USAT failed to adopt a safe sport program by
the deadline. USOC placed USAT on probation in 2011 because
of alleged self-dealing among USAT’s board members, and USAT
remained on probation through September 2013 because of its
failure to adopt a safe sport program.
In the late summer of 2013 USAT adopted a code of conduct
and code of ethics that complied with USOC’s requirements for a
safe sport program. USAT’s code of conduct prohibits sexual
relationships between coaches and athletes regardless of the
athlete’s age. USAT’s code of ethics prohibits sexual harassment,
including requests for sexual favors; provision of alcohol to an
athlete under the age of 18 or abuse of alcohol by a coach in a
minor’s presence; inappropriate touching between a coach and an
athlete, including excessive touching, hugging, kissing, sexually
orientated behavior, and sexually stimulating or otherwise
inappropriate games; rubdowns and massages by an adult other
than a licensed massage therapist; and any nonconsensual
physical contact. After USAT adopted its codes of conduct and
ethics, USOC lifted USAT’s probationary status.
3. Gitelman’s sexual abuse of plaintiffs
In June 2007 then 15-year-old Bordon attended a
taekwondo event with Gitelman in Fresno, California
“sanctioned” by USOC and USAT. Gitelman invited Bordon to
his hotel room for the stated purpose of reviewing videos of her
prior fights, but instead sexually molested her. In May 2008
6
Gitelman drove Bordon from Nevada to a competition in the City
of Industry, California, also sanctioned by USOC and USAT.
During the drive, Gitelman made Bordon rub his penis and
perform oral sex. At the hotel, Gitelman invited Bordon to his
room to review videos of Bordon’s previous fights. When Bordon
entered the hotel room, Gitelman gave her a glass of alcohol, then
sexually molested her. In January 2009 Gitelman sexually
molested Bordon at the Olympic training center dormitory in
Colorado Springs.5 Gitelman continued to sexually molest
Bordon at taekwondo events sanctioned by USOC and USAT
from 2007 until the time Bordon left competitive taekwondo in
2010.
In March or May 2010, Gitelman and his students, then 15-
year-old Gatt and 16-year-old Brown, attended a taekwondo
competition in the City of Industry sanctioned by USOC and
USAT. Gitelman invited Brown, Gatt, and a third young woman
to his hotel room. He served alcohol to Brown and Gatt and had
them play a drinking game called “left, right, left,” causing them
to become intoxicated. After Brown became drunk and lay down
on the bed, Gitelman lifted her shorts and began to sexually
molest her. After Gatt walked Brown to her hotel room, Gatt
returned to Gitelman’s hotel room, where he gave her more
alcohol. Gitelman later instructed Gatt to lie down on the bed,
and he sexually molested her. In 2010 Gitelman continued to
5 Plaintiffs allege on information and belief USOC owned the
Olympic training center dormitory. At some unspecified time
prior to 2005, a female USAT youth athlete was raped at the
training center. In response, USOC placed a guard outside the
girls’ dormitory, but sometime between 2005 and 2009 USOC
stopped placing guards at the dormitory.
7
provide Gatt with alcohol and to sexually molest her on the
premises of NVT.
From November 11 to 13, 2011 Brown competed in the
Rocky Mountain Open at the Olympic training center in Colorado
Springs, an event sanctioned by USOC and USAT. Brown and
Gitelman stayed in separate dormitory rooms. On November 11
Gitelman invited Brown to his dormitory room ostensibly to
check on an injury she had sustained during the competition.
Gitelman then sexually abused Brown in his dormitory room.
Plaintiffs allege “from 2010 through the time [Brown] ceased
contact with defendant [Gitelman] in 2013,” Gitelman continued
to sexually molest Brown at events sanctioned by USOC and
USAT.6
Plaintiffs allege Gitelman did not hide his relationships
with them. He “openly carried on relationships with each
[p]laintiff and his relationship with each plaintiff was common
knowledge throughout the sport of taekwondo.” Plaintiffs allege
USOC and USAT knew or should have known Gitelman was
6 Plaintiffs allege on information and belief Gitelman
continued to abuse plaintiffs through the time of his arrest in
August 2014. However, plaintiffs allege Gitelman’s sexual abuse
of Bordon and Gatt ended in 2010, and his sexual abuse of Brown
ended sometime in 2013. “[S]pecific allegations in a complaint
control over an inconsistent general allegation.” (Perez v. Golden
Empire Transit Dist. (2012) 209 Cal. App. 4th 1228, 1236; accord,
Ferrick v. Santa Clara University (2014) 231 Cal. App. 4th 1337,
1352; but see Daniels v. Select Portfolio Servicing, Inc. (2016)
246 Cal. App. 4th 1150, 1171 [declining to apply principle that
specific allegations control because general agency allegations
had sufficient detail and were consistent with specific
allegations].)
8
violating the code of ethics based on the behavior of Gitelman and
plaintiffs displayed in public and at competitions.
USOC and USAT did not have any policies, procedures, or
oversight to enforce the code of ethics or prevent sexual assaults
of athletes. Specifically, they “did not have any policies in place
prohibiting coaches from traveling alone to competitions with
minor athletes and did not have policies prohibiting coaches from
staying in hotel rooms with minor athletes.” They also did not
have guards or chaperones at hotels, dormitories, or competitions
to enforce the code of ethics or to prevent improper contact
between coaches and athletes.
4. USOC’s and USAT’s knowledge in 2013 of Gitelman’s
sexual abuse of plaintiffs
Plaintiffs allege by September 2013 Malia Arrington, the
USOC director of ethics and safe sport, had actual knowledge of
plaintiffs’ allegations against Gitelman. In October 2013 USAT
chief executive officer Bruce Harris and USAT ethics committee
chair Don Parker voted to suspend Gitelman pending a hearing
by the USAT ethics committee. USAT’s board of directors
approved the temporary suspension of Gitelman pending the
hearing. At the USAT ethics committee hearing, then 18-year-
old Brown represented herself, while Gitelman was represented
by an attorney. Following the ethics committee hearing, the
hearing panel recommended termination of Gitelman’s USAT
membership. But USAT board president Devin Johnson
allegedly refused to present the ethics committee finding to the
full board of directors. USAT allowed Gitelman to continue
coaching at competitions, including the USA Open Taekwondo
Competition in 2014. Arrington and USOC had actual knowledge
9
Gitelman was still coaching in 2014 notwithstanding the USAT
hearing panel’s recommendation to terminate his USAT
membership. USAT did not place Gitelman on its list of banned
coaches until September 2015. At some point Gitelman was
convicted of multiple felonies for the sexual abuse of Bordon,
Brown, and Gatt.
5. Plaintiffs’ causes of action
The first three causes of action for assault and battery are
alleged against Gitelman and unnamed individuals for
Gitelman’s criminal conduct against Bordon, Brown, and Gatt.
The remaining five causes of action allege negligence, negligent
hiring and retention, and negligent and intentional infliction of
emotional distress against USOC, USAT, and the other
defendants.
Plaintiffs’ fourth cause of action for negligence alleges
USOC and USAT are responsible for Gitelman’s negligent
conduct because, on information and belief, Gitelman “was acting
as the agent and/or employee of, and otherwise under the control
of or regulated by” USOC and USAT and “was acting in the
course and within the scope of his authority as agent and/or
employee, actual or ostensible . . . .” In addition, on information
and belief, Gitelman “was acting as an officer, director and/or
managing agent for or otherwise regulated and/or controlled by”
USOC and USAT.
Plaintiffs’ fifth cause of action for negligence alleges USOC
and USAT were directly liable because they breached their “duty
of reasonable care to enforce or enact a [c]ode of [e]thics for the
sport of taekwondo and to enact policies and procedures both to
10
enforce the [c]ode and to protect female athletes from sexual
assault and molestation by coaches and persons in authority.”
Plaintiffs’ sixth cause of action for negligent hiring and
retention alleges USOC and USAT breached the duty of care they
owed to plaintiffs by “failing to conduct a thorough background
check on defendant [Gitelman] when they hired him, failing to
act upon information that defendant [Gitelman] had a history of
and propensity for inappropriate acts/sexual abuse of athletes
and allowing him to have unfettered access to vulnerable
athletes, including plaintiffs.”
Plaintiffs’ seventh cause of action for the intentional
infliction of emotional distress alleges the conduct of USOC and
USAT “was intentional and malicious, and done for the purpose
of causing plaintiffs to suffer humiliation, mental anguish and
emotional and physical distress.” As a proximate result of
defendants’ acts, “plaintiffs suffered humiliation, mental anguish,
and emotional and physical distress, and have been injured in
their mind and body . . . .”
Finally, plaintiffs’ eighth cause of action for negligent
infliction of emotional distress against all defendants alleges, “In
committing the acts as herein alleged, defendants . . . knew, or in
the exercise of reasonable care should have known, that their
failure to exercise due care would cause plaintiffs severe
emotional distress.”
Plaintiffs allege that as a direct and proximate result of the
negligence of USOC and USAT, plaintiffs sustained special and
noneconomic damages, including pain, suffering, and emotional
distress. Plaintiffs also allege, “Each of these defendants have
known or should have known for literally years not only about
defendant [Gitelman’s] prior sexual misconduct, but also the
11
pervasive problem with other taekwondo coaches or high level
executives dating or molesting underage female athletes and yet
have done little if anything about it. Thus, each said defendant is
guilty of malice and oppression, and in addition to compensatory
damages, punitive damages should be awarded for the sake of
example and by way of punishing each said defendant.”
Plaintiffs also seek punitive damages with respect to their claims
for the intentional and negligent infliction of emotional distress
for USOC’s and USAT’s “willful, wanton, malicious and
oppressive” conduct and acts in “conscious disregard of
[plaintiffs’] rights and safety.”
B. USOC’s and USAT’s Demurrers and Motions To Strike
Portions of the First Amended Complaint
USOC and USAT each filed a demurrer to the first
amended complaint, arguing the causes of action were uncertain
and did not allege facts sufficient to state a claim. As to vicarious
liability, USOC and USAT argued plaintiffs did not allege any
facts to establish Gitelman was an employee or agent, or he
committed the sexual assaults within the course and scope of his
employment or agency. USOC and USAT also argued they could
not be held vicariously liable because they did not have actual
knowledge of Gitelman’s sexual misconduct.
USOC and USAT asserted plaintiffs had not alleged a
claim for negligence based on a theory of direct liability because
the organizations owed no duty of care to plaintiffs to prevent
Gitelman’s sexual abuse. They contended plaintiffs failed to
allege a special relationship and actual knowledge of Gitelman’s
prior sexual misconduct. USOC also argued plaintiffs failed to
12
plead facts sufficient to establish it owed a duty of care under the
Rowland factors.
USOC and USAT asserted plaintiffs’ claim for negligent
infliction of emotional distress was duplicative of the negligence
causes of action. Finally, USOC and USAT argued plaintiffs
failed to allege facts sufficient to support a claim for the
intentional infliction of emotional distress because the alleged
conduct was not extreme, outrageous, or reckless.
USOC and USAT separately filed motions to strike
plaintiffs’ allegations seeking punitive damages and attorneys’
fees.
C. The Trial Court’s Ruling and Entry of Judgment
On November 29, 2016 the trial court held a hearing on the
demurrers and motions to strike filed by USOC and USAT. The
court sustained the demurrers without leave to amend, finding
“Gitelman was not an employee or agent of either of the
defendants and the facts alleged do not make him one.”7 In
addition, the court ruled the motions to strike were moot because
it had sustained the demurrers. On January 3, 2017 the trial
court entered judgments of dismissal in favor of USOC and
USAT. Plaintiffs timely appealed.
7 On our own motion we augment the record to include the
trial court’s November 19, 2016 minute order. (Cal. Rules of
Court, rule 8.155(a)(1)(A).) There is no record of the court’s
ruling other than the minute order and judgment of dismissal.
13
DISCUSSION
A. Standard of Review
“In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.
[Citation.] Where the demurrer was sustained without leave to
amend, we consider whether the plaintiff could cure the defect by
an amendment.” (T.H. v. Novartis Pharmaceuticals Corp. (2017)
4 Cal.5th 145, 162; accord, Centinela Freeman Emergency
Medical Associates v. Health Net of California, Inc. (2016)
1 Cal.5th 994, 1010.) When evaluating the complaint, “we
assume the truth of the allegations.” (Lee v. Hanley (2015)
61 Cal. 4th 1225, 1230; accord, McCall v. PacifiCare of Cal., Inc.
(2001) 25 Cal. 4th 412, 415.)
“A judgment of dismissal after a demurrer has been
sustained without leave to amend will be affirmed if proper on
any grounds stated in the demurrer, whether or not the court
acted on that ground.” (Carman v. Alvord (1982) 31 Cal. 3d 318,
324; accord, Summers v. Colette (2019) 34 Cal.App.5th 361, 367.)
A trial court abuses its discretion by sustaining a demurrer
without leave to amend where “‘there is a reasonable possibility
that the defect can be cured by amendment.’” (Loeffler v. Target
Corp. (2014) 58 Cal. 4th 1081, 1100; accord, City of Dinuba v.
County of Tulare (2007) 41 Cal. 4th 859, 865.) “‘The plaintiff has
the burden of proving that [an] amendment would cure the legal
defect, and may [even] meet this burden [for the first time] on
appeal.’” (Sierra Palms Homeowners Assn. v. Metro Gold Line
Foothill Extension Construction Authority (2018) 19 Cal.App.5th
14
1127, 1132; accord, Aubry v. Tri-City Hospital Dist. (1992)
2 Cal. 4th 962, 971.)
B. Plaintiffs Have Alleged Facts Sufficient To State a Claim
for Negligence Based on the Duty of Care Owed to Plaintiffs
by USAT, but Not USOC
Plaintiffs’ fifth cause of action for negligence is based on
USOC’s and USAT’s breach of a duty of care owed to plaintiffs.
As discussed, plaintiffs allege USOC and USAT “had a duty of
reasonable care to enforce or enact a [c]ode of [e]thics for the
sport of taekwondo and to enact policies and procedures both to
enforce the [c]ode and to protect female athletes from sexual
assault and molestation by coaches and persons in authority.” In
their demurrers USOC and USAT asserted they did not owe
plaintiffs a duty of care. We conclude USAT owed plaintiffs a
duty of care, but USOC did not.
1. Duty of Care
To support a claim for negligence, a plaintiff must allege
facts showing a legal duty to use due care, breach of the duty,
causation, and damages. (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 618 (Regents); Vasilenko v.
Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko).)8
8 Our analysis of plaintiffs’ negligence claims also applies to
their claim for negligent infliction of emotional distress. “[T]here
is no independent tort of negligent infliction of emotional
distress. [Citation.] The tort is negligence, a cause of action in
which a duty to the plaintiff is an essential element.” (Potter v.
Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 984; accord,
Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1266, fn. 11;
Brandwein v. Butler (2013) 218 Cal. App. 4th 1485, 1520
15
“In general, each person has a duty to act with reasonable care
under the circumstances.” (Regents, at p. 619; accord, Vasilenko,
at p. 1083 [“Civil Code section 1714, subdivision (a) ‘establishes
the general duty of each person to exercise, in his or her
activities, reasonable care for the safety of others.’”].) “However,
‘one owes no duty to control the conduct of another, nor to warn
those endangered by such conduct.’” (Regents, at p. 619; accord,
Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 235 (Delgado)
[“as a general matter, there is no duty to act to protect others
from the conduct of third parties”].)
Nevertheless, “a duty to control may arise if the defendant
has a special relationship with the foreseeably dangerous person
that entails an ability to control that person’s conduct.” (Regents,
supra, 4 Cal.5th at p. 619; accord, Barenborg v. Sigma Alpha
Epsilon Fraternity (2019) 33 Cal.App.5th 70, 77 (Barenborg).)
“Similarly, a duty to warn or protect may be found if the
defendant has a special relationship with the potential victim
that gives the victim the right to expect protection.” (Regents, at
p. 619; accord, Delgado, supra, 36 Cal.4th at p. 235 [“A defendant
may owe an affirmative duty to protect another from the conduct
of third parties if he or she has a ‘special relationship’ with the
other person.”].) “The existence of a duty is a question of law,
which we review de novo.” (Vasilenko, supra, 3 Cal.5th at p. 1083
[analyzing duty under Rowland factors]; accord, Regents, at
p. 620 [“The determination whether a particular relationship
supports a duty of care rests on policy and is a question of law.”].)
[“[R]ecovery of emotional distress damages is premised on
defendant’s negligence (i.e., breach of duty) that proximately
causes emotional distress.”].)
16
“[P]lantiffs alleging a defendant had a duty to protect them
must establish: (1) that an exception to the general no-duty-to-
protect rule applies and (2) that the Rowland factors support the
imposition of the duty.” (Barenborg, supra, 33 Cal.App.5th at
p. 77; see Regents, supra, 4 Cal.5th at p. 628 [applying Rowland
factors after concluding college had special relationship with
students engaged in college’s curricular activities]; Delgado,
supra, 36 Cal.4th at pp. 244-246 [bar proprietor had duty to
protect patron from assault by third party based on special
relationship with patron and Rowland factors].)
“‘“The key in each [special relationship] is that the
defendant’s relationship with . . . the tortfeasor . . . places the
defendant in the best position to protect against the risk of
harm.”’ [Citations.] Thus, the defendant’s ability to control the
person who caused the harm must be such that ‘if exercised, [it]
would meaningfully reduce the risk of the harm that actually
occurred.’” (Barenborg, supra, 33 Cal.App.5th at p. 78.)
In Regents, the Supreme Court considered the “common
features” of a special relationship. (Regents, supra, 4 Cal.5th at
p. 620.) The Regents court observed that “[g]enerally, the
relationship has an aspect of dependency in which one party
relies to some degree on the other for protection.” (Ibid.)
Further, “[t]he corollary of dependence in a special relationship is
control. Whereas one party is dependent, the other has superior
control over the means of protection. ‘[A] typical setting for the
recognition of a special relationship is where “the plaintiff is
particularly vulnerable and dependent upon the defendant who,
correspondingly, has some control over the plaintiff’s welfare.”’”
(Id. at p. 621.) In addition, “[s]pecial relationships also have
defined boundaries. They create a duty of care owed to a limited
17
community, not the public at large.” (Ibid.) Finally, the court
noted that “although relationships often have advantages for
both participants, many special relationships especially benefit
the party charged with a duty of care,” pointing to retail stores
and hotels as examples. (Ibid.)
In its evaluation of whether a college has a special
relationship with its students, the Regents court observed that
college students are “dependent on their college communities to
provide structure, guidance, and a safe learning environment”
and “have superior control over the environment and the ability
to protect students.” (Regents, supra, 4 Cal.5th at p. 625.) The
court reasoned, “Considering the unique features of the college
environment, we conclude postsecondary schools do have a
special relationship with students while they are engaged in
activities that are part of the school’s curriculum or closely
related to its delivery of educational services.” (Id. at pp. 624-
625.) However, the court limited the college’s duty of care to
“activities that are tied to the school’s curriculum but not to
student behavior over which the university has no significant
control,” explaining the college would be expected to retain a
“measure of control” over the classroom environment. (Id. at
p. 627.)
A number of Courts of Appeal have considered whether
organizations owe a duty of care toward a minor where an adult
under the control of the organization sexually abused the minor.
In Doe v. United States Youth Soccer Assn., Inc. (2017)
8 Cal.App.5th 1118, 1130-1131 (United States Youth Soccer), the
court concluded the national youth soccer association had a
special relationship with the 12-year-old plaintiff who was
sexually abused by her coach. The court reasoned there was a
18
special relationship because the plaintiff was a member of the
association, she played on a team that was a local affiliate of the
association, the team was required to comply with the
association’s policies and rules, and the association established
the standards under which coaches were hired. (Id. at p. 1131.)
The court explained, “[P]arents entrusted their children to [the
association and other] defendants with the expectation that they
would be kept physically safe and protected from sexual
predators while they participated in soccer activities.” (Id. at
p. 1130.)
Similarly, in Juarez v. Boy Scouts of America, Inc. (2000)
81 Cal. App. 4th 377, 404 (Juarez), the Court of Appeal concluded
the Boy Scouts of America had a duty to protect a 12-year-old
scout who was sexually molested by his scoutmaster during
officially sanctioned scouting events, including overnight
campouts. In its review of the record on summary judgment, the
court observed the Boy Scouts had identified the protection of
youth from sexual abuse as a priority of the organization. (Id. at
p. 398.) The Boy Scouts had developed a “Youth Protection
Program” to educate adult volunteers, parents, and scouts on how
to detect and prevent sexual abuse, but it had failed to provide
information to the plaintiff and his parents in their native
language on how to protect the plaintiff from sexual abuse. (Id.
at pp. 398-399.) On these facts the court concluded the Boy
Scouts had a special relationship with the plaintiff “giving rise to
a duty to protect him from harm caused by the criminal conduct
of third parties.” (Id. at p. 411.)9
9 As we discuss below, the court in Juarez principally focused
on the Rowland factors in determining the Boy Scouts owed a
duty of care to the plaintiff scout.
19
Other courts have similarly found a special relationship
between an organization and the minor or tortfeasor. (See Conti
v. Watchtower Bible & Tract Society of New York, Inc. (2015)
235 Cal. App. 4th 1214, 1235 (Conti) [church elders’ control over
church-sponsored field service placed the church and its elders in
a special relationship with plaintiff and the church member who
sexually molested plaintiff]; Doe 1 v. City of Murrieta (2002)
102 Cal. App. 4th 899, 918 (City of Murrieta) [police department
that sponsored “explorer program” was in special relationship
with the teenage explorers and owed them “a duty of care to
protect them from foreseeable harm,” including from sexual
relationship with police officer who served as adviser during ride-
alongs at night]; cf. Barenborg, supra, 33 Cal.App.5th at pp. 75,
81 [national fraternity did not have special relationship with its
local chapter and therefore had no duty to protect student who
was injured at party held by local chapter, despite national
fraternity’s adoption of policies governing local chapter and
ability to discipline chapter for policy violations because it had no
ability to prevent injury].)
2. Plaintiffs allege facts showing USAT had a special
relationship with Gitelman
Plaintiffs allege facts sufficient to show USAT had a special
relationship with Gitelman. To compete at the Olympic games,
taekwondo athletes must be members of USAT and train under
USAT-registered coaches. USAT registered Gitelman as a coach,
and he remained registered until USAT banned him from
coaching. USAT had control over Gitelman’s conduct through its
policies and procedures. As the national governing body of
taekwondo, “USAT is responsible for the conduct and
20
administration of taekwondo in the United States.” Further,
USAT formulates the rules, implements the policies and
procedures, and enforces the code of ethics for taekwondo in the
United States.
In the late summer of 2013 USAT adopted codes of conduct
and ethics that complied with the requirements of the safe sport
program mandated by USOC. USAT’s code of conduct prohibits
sexual relationships between coaches and athletes. USAT’s code
of ethics prohibits, among other things, provision of alcohol to
youth athletes, inappropriate touching between a coach and an
athlete, and nonconsensual physical contact. USAT can, and did,
enforce its policies and procedures by temporarily suspending
Gitelman pending the ethics committee hearing, conducting a
hearing in October 2013 on Brown’s sexual abuse allegations
against Gitelman, and terminating Gitelman’s USAT
membership in September 2015.
USAT was therefore “‘“in the best position to protect
against the risk of harm”’” and “‘meaningfully reduce the risk of
the harm that actually occurred.’” (Barenborg, supra,
33 Cal.App.5th at p. 78; accord, Regents, supra, 4 Cal.5th at
p. 621.) Thus, USAT had “a special relationship with the
foreseeably dangerous person that entails an ability to control
that person’s conduct.” (Regents, at p. 619; see United States
Youth Soccer, supra, 8 Cal.App.5th at pp. 1130-1131; Conti,
supra, 235 Cal.App.4th at p. 1235.)
The facts alleged here contrast with those at issue in
Barenborg, supra, 33 Cal.App.5th at pages 77 to 80. There, the
Court of Appeal concluded “the existence of general policies
governing the operation of local chapters [of a fraternity] and the
authority to discipline them for violations does not justify
21
imposition of a duty on national fraternities.” (Id. at p. 79.) As
the court explained, regardless of the national fraternity’s
policies and ability to discipline the local chapter, it could not
have prevented the local chapter from constructing the dangerous
platform from which the plaintiff fell during the party. (Id. at
p. 81.) The court concluded, “Ultimately, regardless of its policies
and disciplinary powers, [the national fraternity] was unable to
monitor and control [the local chapter’s] day-to-day operations,
and it thus owed no duty to protect [plaintiff] from [the local
chapter’s] conduct.” (Ibid.)
Unlike the national fraternity in Barenborg, which could
only control its local chapter by disciplining it after learning of a
violation of the fraternity’s policies, USAT was in a unique
position to protect youth athletes against the risk of sexual abuse
by their coaches. USAT could, and eventually did, establish
codes of conduct and ethics that prohibited sexual relationships
between coaches and athletes, inappropriate touching, and
nonconsensual physical contact. In addition, as alleged by
plaintiffs, USAT could have taken additional steps to protect
youth athletes by prohibiting coaches from traveling alone to
competitions with youth athletes, barring coaches from staying in
hotel rooms at competitions with youth athletes, and providing
guards or chaperones at hotels and dormitories at competitions to
prevent improper conduct by coaches.
3. The Rowland factors support a finding USAT had a
duty to protect plaintiffs from sexual abuse
Even if an organization has a special relationship with the
tortfeasor or plaintiff, “[t]he court may depart from the general
rule of duty . . . if other policy considerations clearly require an
22
exception.” (Regents, supra, 4 Cal.5th at p. 628.) We therefore
consider the Rowland factors “that may, on balance, justify
excusing or limiting a defendant’s duty of care.” (Regents, at
p. 628; accord, United States Youth Soccer, supra, 8 Cal.App.5th
at p. 1128 [“In cases involving nonfeasance and a special
relationship between a plaintiff and a defendant, courts have
balanced the policy factors set forth in Rowland, supra, 69 Cal. 2d
108 to assist in their determination of the existence and scope of
a defendant’s duty in a particular case.”]; Doe v. Superior Court
(2015) 237 Cal. App. 4th 239, 245 [observing as to summer camp
and its counselors, campers, and campers’ parents that “[e]ven if
a special relationship exists, a defendant’s duty of care does not
necessarily include the obligation to act proactively” as to
possible future harm from third party].)
In determining whether policy considerations justify
excusing or limiting a defendant’s duty of care, we look to “‘the
foreseeability of harm to the plaintiff, the degree of certainty that
the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty
to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.’” (Regents, supra, 4 Cal.5th at p. 628, quoting Rowland,
supra, 69 Cal.2d at p. 113; accord, Vasilenko, supra, 3 Cal.5th at
p. 1083 [church did not owe duty of care to protect plaintiff from
being struck by car as he crossed public street from church’s
parking lot to the church].)
23
“The Rowland factors fall into two categories. The first
group involves foreseeability and the related concepts of certainty
and the connection between plaintiff and defendant. The second
embraces the public policy concerns of moral blame, preventing
future harm, burden, and insurance availability.” (Regents,
supra, 4 Cal.5th at p. 629; accord, Vasilenko, supra, 3 Cal.5th at
p. 1083.) “These factors must be ‘evaluated at a relatively broad
level of factual generality.’ [Citation.] In considering them, we
determine ‘not whether they support an exception to the general
duty of reasonable care on the facts of the particular case before
us, but whether carving out an entire category of cases from that
general duty rule is justified by clear considerations of policy.’”
(Regents, at pp. 628-629; accord, Vasilenko, at p. 1083.)
a. Foreseeability factors
In determining whether to create an exception to the
general duty to exercise ordinary care, the most important factor
is whether the injury at issue was foreseeable. (Regents, supra,
4 Cal.5th at p. 629.) “In examining foreseeability, ‘the court’s
task . . . “is not to decide whether a particular plaintiff’s injury
was reasonably foreseeable in light of a particular defendant’s
conduct, but rather to evaluate more generally whether the
category of negligent conduct at issue is sufficiently likely to
result in the kind of harm experienced that liability may
appropriately be imposed . . . .”’” (Ibid., quoting Cabral v. Ralphs
Grocery Co. (2011) 51 Cal. 4th 764, 772.) The Regents court
explained the appropriate question in that case was not whether
it was foreseeable a particular student would stab another
student in the classroom, but rather, “whether a reasonable
university could foresee that its negligent failure to control a
24
potentially violent student, or to warn students who were
foreseeable targets of his ire, could result in harm to one of those
students.” (Regents, at p. 629.) The Supreme Court considered
instances in which individuals at other universities committed
unprovoked violent attacks and observed, “[P]articularly after the
Virginia [Polytechnic Institute and State University] shootings
focused national attention on the issue, colleges have been alert
to the possibility that students, particularly those with mental
health issues, may lash out violently against those around them.”
(Id. at p. 630.) The court concluded, “[C]ase-specific
foreseeability questions are relevant in determining the
applicable standard of care or breach in a particular case. They
do not, however, inform our threshold determination that a duty
exists.” (Ibid.)10
10 USAT relies on cases predating Regents, in which the
courts concluded an entity or individual having a special
relationship with a minor did not owe the minor a duty of care
because the conduct of the third party who harmed the minor was
not foreseeable. (See, e.g., J.L. v. Children’s Institute, Inc. (2009)
177 Cal. App. 4th 388, 391, 393, 396 [daycare agency had special
relationship with child but “owed no duty to protect [child]
against an unforeseeable criminal assault” by 14-year-old
grandson of home daycare operator]; Margaret W. v. Kelley R.
(2006) 139 Cal. App. 4th 141, 152 [mother hosting sleepover had
special relationship with daughter’s friend but no duty to prevent
rape that was not foreseeable where daughter and friend left
home without parents’ permission]; Romero v. Superior Court
(2001) 89 Cal. App. 4th 1068, 1080-1081, 1089 [parents had special
relationship with 13-year-old girl whom they invited to visit with
their teenage son, but they did not owe duty of care to prevent
other teenage boy from assaulting girl where the parents were
unaware of the boy’s propensity to sexually assault a female
minor]; Chaney v. Superior Court (1995) 39 Cal. App. 4th 152, 157
25
Here, plaintiffs allege in 1992 the USAT national team
coach was caught having sex with a young female Olympian, and
sexual abuse of youth athletes by credentialed coaches “was so
rampant that by 1999 defendant USOC required all [national
governing bodies] to have specific insurance to cover coach sexual
abuse.” USAT purchased this insurance in 1999. Further,
plaintiffs allege that at some time prior to 2005 and again in 2007
female USAT youth athletes were raped at the Olympic training
center in Colorado Springs. Plaintiffs allege USAT “regularly
received complaints from athletes or their parents regarding
improper sexual conduct by coaches,” and it was “aware that
female taekwondo athletes, and Olympian level athletes in
general were frequently victims of sexual molestation by their
coaches yet did nothing to protect these athletes from such
abuse.” In addition, plaintiffs allege “[b]y 2007 sexual abuse of
minors by figures of authorities, like priests, coaches, and scout
leaders was a widely known risk in American society.”
Based on these allegations, it was foreseeable youth
athletes attending Olympic qualifying competitions with their
coaches might be sexually molested by their coaches, regardless
of whether USAT had knowledge of prior sexual misconduct by
[“where a child is sexually assaulted in the defendant wife’s home
by her husband, the wife’s duty of reasonable care to the injured
child depends on whether the husband’s behavior was reasonably
foreseeable”].) Although some of these cases analyze the question
of duty in the context of foreseeability of the particular tortfeasor
causing harm, we follow the Supreme Court’s direction to analyze
foreseeability under Rowland at a general level, considering
whether it was foreseeable the category of negligent conduct was
likely to result in the type of harm experienced. (Regents, supra,
4 Cal.5th at p. 629.)
26
Gitelman. (See United States Youth Soccer, supra, 8 Cal.App.5th
at pp. 1132, 1135 [even though soccer associations were not
aware of coach’s prior sexual abuse, sexual abuse of minors in
soccer program by their coach was reasonably foreseeable
because the associations “were aware that sexual predators were
drawn to their organization in order to exploit children and that
there had been prior incidents of sexual abuse of children in their
programs”]; Juarez, supra, 81 Cal.App.4th at p. 404 [“[I]t should
be reasonably foreseeable to the Scouts that a child participating
in scouting might fall prey to a sexual predator, with no
documented history of such proclivities, who is serving as an
adult volunteer in the child’s scouting troop.”].)
Moreover, plaintiffs allege Gitelman sexually abused
Bordon on a road trip while they were alone in a car, and he
abused all three plaintiffs in his hotel and dormitory rooms
during overnight trips to taekwondo competitions. It is
reasonably foreseeable some coaches, allowed to be alone with
youth athletes, would sexually abuse the athletes during road
trips and overnight stays. (See City of Murrieta, supra,
102 Cal.App.4th at p. 915 [plaintiffs’ frequent participation in
one-on-one ride-alongs with police adviser late at night “created a
risk or foreseeability that [adviser] would become sexually
involved with plaintiffs”]; Juarez, supra, 81 Cal.App.4th at p. 404
[“[C]hildren engaged in organized group overnight activities are
at risk of foreseeable sexual abuse.”].)
The second factor, the degree of certainty that plaintiffs
suffered harm, is not at issue. It is undisputed plaintiffs suffered
harm from Gitelman’s sexual abuse of them. “The significant
emotional trauma caused by childhood sexual abuse, with its
related societal costs, is well documented . . . .” (Juarez, supra,
27
81 Cal.App.4th at p. 405; accord, City of Murrieta, supra,
102 Cal.App.4th at p. 916 [rejecting argument plaintiffs did not
suffer injury because they consented to sexual acts].)
“The third factor is ‘the closeness of the connection between
the defendant’s conduct and the injury suffered.’ [Citation.]
‘Generally speaking, where the injury suffered is connected only
distantly and indirectly to the defendant’s negligent act, the risk
of that type of injury from the category of negligent conduct at
issue is likely to be deemed unforeseeable. Conversely, a closely
connected type of injury is likely to be deemed foreseeable.’”
(Regents, supra, 4 Cal.5th at pp. 630-631; accord, Cabral, supra,
51 Cal.4th at p. 779.)
Plaintiffs allege USAT was negligent in failing to adopt and
enforce policies and procedures to protect athletes from sexual
abuse by coaches. Specifically, they allege although USAT was
aware as early as 1992 that coaches were sexually abusing
taekwondo athletes, it did not adopt policies to prevent sexual
abuse until the late summer of 2013—after Gitelman sexually
abused plaintiffs. USAT’s failure to take any steps prior to 2013
to prevent taekwondo coaches from sexually abusing female
athletes is closely connected to the injury plaintiffs suffered
because action by USAT could have reduced the risk of plaintiffs
being abused by limiting inappropriate contact between coaches
and youth athletes. (See Regents, supra, 4 Cal.5th at p. 631
[“When circumstances put a school on notice that a student is at
risk to commit violence against other students, the school’s
failure to take appropriate steps to warn or protect foreseeable
victims can be causally connected to injuries the victims suffer as
a result of that violence.”]; United States Youth Soccer, supra,
8 Cal.App.5th at pp. 1136-1137 [“If defendants had conducted a
28
criminal background check of [the coach], his prior conviction for
domestic violence would have been discovered and it would have
been highly unlikely that he would have been hired. Thus, he
would have had far fewer, if any, opportunities to sexually abuse
plaintiff.”]; Conti, supra, 235 Cal.App.4th at p. 1235 [allowing
child molester to be alone with plaintiff during field service
heightened risk of sexual abuse]; City of Murrieta, supra,
102 Cal.App.4th at p. 916 [“Had the [police department]
restricted plaintiffs’ contact with [their adviser] while on the
job, . . . it would have been much less likely that plaintiffs and
[their adviser] would have become sexually involved.”]; Juarez,
supra, 81 Cal.App.4th at p. 406 [Boy Scouts’ failure to educate
scouts, their parents, and adult volunteers to protect scouts from
sexual abuse created “a sufficient causal link between the acts or
omissions of the [Boy] Scouts and the harm [plaintiff] suffered.”].)
b. Policy factors
The existence of a duty also depends on “‘“‘a weighing of
policy considerations for and against imposition of liability.’”’”
(Vasilenko, supra, 3 Cal.5th at p. 1086; accord, Regents, supra,
4 Cal.5th at p. 631 [“Although Rowland’s foreseeability factors
weigh in favor of recognizing a duty of care, we must also
consider whether public policy requires a different result.”].) “‘A
duty of care will not be held to exist even as to foreseeable
injuries . . . where the social utility of the activity concerned is so
great, and avoidance of the injuries so burdensome to society, as
to outweigh the compensatory and cost-internalization values of
negligence liability.’” (Regents, at p. 631; accord, Vasilenko, at
pp. 1086-1087.)
29
“[I]f there were reasonable ameliorative steps the
defendant could have taken, there can be moral blame ‘attached
to the defendants’ failure to take steps to avert the foreseeable
harm.’” (Vasilenko, supra, 3 Cal.5th at p. 1091; see Regents,
supra, 4 Cal.5th at p. 631 [“[s]ome measure of moral blame does
attach to a university’s negligent failure to prevent violence
against its students” because college had superior knowledge
about potential threats and ability to control the environment];
City of Murrieta, supra, 102 Cal.App.4th at p. 916 [police
department, as sponsor of explorer program, “had a moral
obligation to protect its explorers, including implementing
reasonable rules and restrictions . . . and intervening when there
was an apparent risk of sexual exploitation by an explorer
adviser”]; cf. United States Youth Soccer, supra, 8 Cal.App.5th at
p. 1137 [no moral blame attributable to defendants where there
was no evidence they knew the coach would harm plaintiff, and
defendants required applicants to disclose and verify record of
prior criminal convictions]; Juarez, supra, 81 Cal.App.4th at
pp. 406-407 [Boy Scouts’ failure to ensure scouts, parents, and
volunteers were aware of potential for sexual abuse was not
blameworthy where the Boy Scouts were in the vanguard in
fighting child sexual abuse by their development of an
educational program].) Here, as in Regents, we attribute “[s]ome
measure of moral blame” to USAT because it failed to take action
to prevent sexual abuse by coaches until the late summer of 2013,
when it first adopted a safe sport program. (Regents, at p. 631.)
We also consider the policy of preventing future harm,
which “‘is ordinarily served, in tort law, by imposing the costs of
negligent conduct upon those responsible. The policy question is
whether that consideration is outweighed, for a category of
30
negligent conduct, by laws or mores indicating approval of the
conduct or by the undesirable consequences of allowing potential
liability.’” (Regents, supra, 4 Cal.5th at p. 632 [finding of duty
served policy of preventing future harm because imposing a duty
would create incentives that “[o]n the whole . . . avert violent
episodes”]; cf. Vasilenko, supra, 3 Cal.5th at p. 1087 [factor
weighed against finding duty because landowner has limited
ability to reduce risk of injury from the public crossing public
street to parking lot, and imposing duty could cause landowner to
stop providing parking].)
Here, the societal goal of safeguarding youth athletes from
sexual abuse weighs in favor of imposing a duty on USAT to
implement and enforce policies and procedures to protect the
athletes. USAT is in the best position to take steps to protect
youth athletes who attend Olympic taekwondo competitions alone
with their coaches. As the Juarez court observed, society’s
“common goal of safeguarding our children . . . is gravely
threatened by sexual predators who prey on young children. . . .
[¶] . . . The interests of the state in protecting the health,
emotional welfare and well-rounded growth of its young citizens,
together with its undeniable interest in safeguarding the future
of society as a whole, weigh strongly in favor of imposing a
duty . . . .” (Juarez, supra, 81 Cal.App.4th at p. 407; accord,
United States Youth Soccer, supra, 8 Cal.App.5th at p. 1137
[“[O]ur society recognizes that the protection of children from
sexual abuse is a paramount goal.”]; City of Murrieta, supra,
102 Cal.App.4th at p. 916 [“preventing future harm to minors is
certainly appropriate and could be accomplished by implementing
the protective measures stated in the . . . explorer handbook, as
31
well as adhering to [the defendant’s] own ride-along
restrictions”].)
We also consider “the burden that recognizing a tort duty
would impose on the defendant and the community.” (Regents,
supra, 4 Cal.5th at p. 633; accord, Vasilenko, supra, 3 Cal.5th at
p. 1090.) Incentivizing USAT to adopt policies that adequately
protect youth athletes and to ensure the policies are followed
would not impose a substantial burden on USAT. USAT has now
enacted codes of conduct and ethics that prohibit sexual
relationships and inappropriate touching between coaches and
athletes. Further, USAT has a disciplinary procedure for barring
coaches from coaching taekwondo if they violate USAT’s policies
and procedures. Although USAT delayed taking action against
Gitelman, it banned him from coaching Olympic taekwondo in
September 2015. (See United States Youth Soccer, supra,
8 Cal.App.5th at pp. 1135-1136 [imposing a duty to implement
criminal background checks for coaches was not burdensome for
national and local soccer associations]; Conti, supra,
235 Cal.App.4th at p. 1235 [“Defendants will not be heavily
burdened by a duty to take reasonable care to ensure that
molesters are accompanied by another adult, and no children, in
the field.”]; City of Murrieta, supra, 102 Cal.App.4th at p. 916
[implementation of protective measures stated in the explorer
handbook and enforcement of defendant’s own ride-along
restrictions were not “unduly burdensome or costly”]; Juarez,
supra, 81 Cal.App.4th at pp. 407-409 [burden on Boy Scouts was
not onerous where delivery system was “already in place to see
that vital information needed to combat child sexual abuse is
communicated at every level of scouting”].)
32
The final Rowland factor is the availability and cost of
insurance for the risk involved. (Regents, supra, 4 Cal.5th at
p. 633; Vasilenko, supra, 3 Cal.5th at p. 1091.) This factor weighs
in favor of finding a duty in light of the allegation USAT in 1999
obtained insurance to cover sexual abuse by coaches.
In sum, on the facts as alleged, the Rowland factors
support recognition of USAT’s duty to use reasonable care to
protect taekwondo youth athletes from foreseeable sexual abuse
by their coaches.
4. Plaintiffs have not alleged facts showing USOC had a
special relationship with Gitelman or plaintiffs
Plaintiffs contend USOC had a special relationship with
Gitelman or plaintiffs because USOC had authority to certify or
decertify national governing bodies, including USAT; USOC
mandated national governing bodies adopt a safe sport program
by 2013; and Gitelman’s sexual abuse of plaintiffs occurred at
taekwondo competitions sanctioned by USOC. These allegations
show USOC had the ability to regulate USAT’s conduct, but they
do not establish that USOC had the ability to control Gitelman’s
conduct, or USOC was in the best position to protect plaintiffs
from Gitelman’s sexual abuse. (Regents, supra, 4 Cal.5th at
p. 621; see Barenborg, supra, 33 Cal.App.5th at p. 80 [“Absent an
ability to monitor the day-to-day operations of local chapters, the
authority to discipline generally will not afford a national
fraternity sufficient ability to prevent the harm and thus will not
place it in a unique position to protect against the risk of harm.”];
University of Southern California v. Superior Court (2018)
30 Cal.App.5th 429, 449 [college did not have special relationship
with students or guests attending off-campus party at fraternity
33
because “college has little control over such noncurricular, off-
campus activities, and it would be unrealistic for students and
their guests to rely on the college for protection in those
settings”].) USOC’s indirect control over Gitelman through its
regulation of USAT is too remote to create a special relationship.
Plaintiffs liken USOC to the national youth soccer
association that the Court of Appeal in United States Youth
Soccer, supra, 8 Cal.App.5th at page 1131 concluded had a special
relationship with a youth athlete playing for a local affiliated
soccer league. As here, the national association established
policies to protect youth athletes from sexual abuse by coaches.
(Id. at pp. 1123-1124.) But the national association also set
requirements for the hiring of coaches by its state associations
and regional affiliates, required state associations and their
affiliates to collect and screen criminal conviction information on
their coaches, had authority to deny certification to coaches with
criminal convictions, and distributed monthly reports showing
which coaches had been disqualified from coaching because of
their convictions. (Id. at p. 1126.) Further, unlike here, the
plaintiff was a member of the national association and played on
a team that was a local affiliate of the national association. (Id.
at p. 1131.)
Conti, City of Murrieta, and Juarez are similarly
distinguishable. In Conti, supra, 235 Cal.App.4th at page 1235,
the church elders controlled the field service program during
which a church member sexually molested the plaintiff. In City
of Murrieta, supra, 102 Cal.App.4th at page 918, the police
department sponsored the explorer program and controlled the
adviser who sexually abused the teenage explorers. In Juarez,
supra, 81 Cal.App.4th at pages 398 to 400, the Boy Scouts
34
developed educational materials on sexual abuse and set
guidelines for scouting troops to follow, but it failed to provide the
educational materials to the minor plaintiff and his parents in
their native language.
Here, USAT is one of 49 national governing bodies in the
United States. Plaintiffs have not alleged any relationship
between USOC and Gitelman other than USOC’s ability to
control the policies adopted by USAT, which in turn would
impact the conduct of coaches registered with USAT. Unlike
United States Youth Soccer, plaintiffs have not alleged USOC had
any authority to control Gitelman’s conduct directly or to prevent
him from coaching taekwondo in competitions. Similarly, the
first amended complaint does not allege any relationship between
USOC and plaintiffs, other than an allegation plaintiffs were
abused at taekwondo events “sanctioned” by USOC. This alone
does not establish a special relationship between USOC and
plaintiffs, or that USOC was in a position to control Gitelman’s
conduct. The fact USOC was aware generally of coaches sexually
abusing athletes in Olympic sports, including taekwondo, leading
USOC to require national governing bodies to adopt safe sport
policies, does not mean USOC had the ability to control
Gitelman’s conduct or was in the best position to do so. Further,
plaintiffs have not provided additional facts they could allege to
show a special relationship between USOC and Gitelman or
plaintiffs.11
11 On September 12, 2018 plaintiffs requested judicial notice
of two May 21, 2018 congressional staff memoranda and a
videotape of a May 23, 2018 congressional hearing concerning the
sexual abuse of athletes in Olympic sports, including taekwondo.
We denied plaintiffs’ request without prejudice because it failed
35
Because USOC does not have a special relationship with
Gitelman or plaintiffs, it does not have a duty to protect
plaintiffs. Therefore, we do not consider the Rowland factors as
to USOC. (Barenborg, supra, 33 Cal.App.5th at p. 77
[“Because . . . we conclude no exception applies here, we need not
consider the application of the Rowland factors to the facts of this
case.”]; University of Southern California v. Superior Court,
supra, 30 Cal.App.5th at p. 451 [“An analysis of the Rowland
factors may be unnecessary if the court determines as a matter of
law based on other policy considerations that no duty exists in a
category of cases.”].)
to comply with California Rules of Court, rule 8.252(a)(2). On
August 26, 2019 plaintiffs renewed their request for judicial
notice of the same information. We deny plaintiffs’ renewed
request for judicial notice on the basis the documents and
videotape are not necessary for our resolution of the appeal
because USOC’s knowledge of sexual abuse by Olympic coaches is
not sufficient to create a special relationship with taekwondo
coaches or athletes. (See Jordache Enterprises, Inc. v. Brobeck,
Phleger & Harrison (1998) 18 Cal. 4th 739, 748, fn. 6 [judicial
notice denied where “the requests present no issue for which
judicial notice of these items is necessary, helpful, or relevant”];
Appel v. Superior Court (2013) 214 Cal. App. 4th 329, 342, fn. 6
[judicial notice denied where materials are not “relevant or
necessary” to the court’s analysis].) However, we deny USOC’s
and USAT’s motions to strike the portions of plaintiffs’ reply brief
that reference the documents attached to their request for
judicial notice. Instead, we have not considered the cited May
2018 congressional testimony in our analysis.
36
C. Plaintiffs Have Not Alleged Sufficient Facts To Support
Their Claims Against USOC and USAT Based on Vicarious
Liability
Plaintiffs base their claims for negligence (fourth cause of
action), the negligent hiring and retention of Gitelman (sixth
cause of action), the intentional infliction of emotional distress
(seventh cause of action), and the negligent infliction of emotional
distress (eighth cause of action) on alternative theories of joint
venture, agency, and an employment relationship. Plaintiffs
have not alleged facts sufficient to state a claim under any of
these theories.
1. Plaintiffs have not alleged a joint venture among
Gitelman, USAT, and USOC
Plaintiffs base their fourth cause of action for negligence in
part on their allegation Gitelman’s conduct was in furtherance of
a joint venture among the defendants. “‘There are three basic
elements of a joint venture: the members must have joint control
over the venture (even though they may delegate it), they must
share the profits of the undertaking, and the members must each
have an ownership interest in the enterprise.’” (Scottsdale Ins.
Co. v. Essex Ins. Co. (2002) 98 Cal. App. 4th 86, 91; accord,
Chambers v. Kay (2002) 29 Cal. 4th 142, 151 [“‘[A] joint venture
exists where there is an “agreement between the parties under
which they have a community of interest, that is, a joint interest,
in a common business undertaking, an understanding as to the
sharing of profits and losses, and a right of joint control.”’”];
Orosco v. Sun-Diamond Corp. (1997) 51 Cal. App. 4th 1659, 1666.)
“‘“An essential element of a partnership or joint venture is
the right of joint participation in the management and control of
37
the business. [Citation.] Absent such right, the mere fact that
one party is to receive benefits in consideration of services
rendered or for capital contribution does not, as a matter of law,
make him a partner or joint venturer.”’” (Simmons v. Ware
(2013) 213 Cal. App. 4th 1035, 1056; accord, Kaljian v. Menezes
(1995) 36 Cal. App. 4th 573, 586.)
Plaintiffs allege USOC, USAT, and Gitelman “were
engaged in a joint venture/enterprise to promote and profit from
the sport of taekwondo and to train American athletes to win
medals in Olympic and other international competitions.
Plaintiffs are informed and believe that these defendants made
loans and other monetary contributions to the other members of
the venture/enterprise, paid for advertising and other expenses
for the benefit of the venture/enterprise and/or had
representatives on the various boards of directors for the
defendants who had a voice in the decisions of the members of the
venture/enterprise and had a right of control in directing the
conduct of the enterprise.”
Plaintiffs fail to allege the essential element of an
agreement among Gitelman, USOC, and USAT to share in the
profits and losses of the alleged joint venture. (See Simmons v.
Ware, supra, 213 Cal.App.4th at pp. 1055-1056 [no joint venture
where there was no agreement to share in profits and losses, even
though defendant had some control over the venture]; Orosco v.
Sun-Diamond Corp., supra, 51 Cal.App.4th at p. 1666 [defendant
agricultural cooperative was not engaged in joint venture with
plaintiff’s employer to run raisin plant where the cooperative did
not control or operate plant or share in profits].) Further,
plaintiffs do not allege Gitelman had “the right of joint
participation in the management and control of the business.”
38
(Simmons, at p. 1056.) Rather, they only allege on information
and belief USOC and USAT contributed money to the enterprise,
paid for expenses, and generally “‘“had a right of control in
directing the conduct of the enterprise.”’” Plaintiffs assert they
can amend their complaint to allege the nature of the joint
venture relationship and the roles Gitelman, USOC, and USAT
played in the venture. But plaintiffs have failed to set forth
specific facts they could allege to support a finding Gitelman
shared in the profits or had a right of control over the asserted
joint venture. Therefore, the trial court did not abuse its
discretion in denying plaintiffs leave to amend to allege
derivative liability based on a joint venture.
2. Plaintiffs have not adequately alleged Gitelman was
an agent of USOC or USAT
Plaintiffs alternatively base their fourth cause of action for
negligence, as well as their seventh and eighth causes of action
for the intentional and negligent infliction of emotional distress,
on Gitelman’s alleged status as an agent of USOC and USAT.
“‘“‘Agency is the relationship which results from the
manifestation of consent by one person to another that the other
shall act on his behalf and subject to his control, and consent by
the other so to act.’ [Citation.] ‘The principal must in some
manner indicate that the agent is to act for him, and the agent
must act or agree to act on his behalf and subject to his control.’”’”
(Secci v. United Independent Taxi Drivers, Inc. (2017)
8 Cal.App.5th 846, 855; accord, Barenborg, supra, 33 Cal.App.5th
at p. 85 [local fraternity chapter did not act as agent of national
fraternity].) “‘“‘The chief characteristic of the agency is that of
representation, the authority to act for and in the place of the
39
principal for the purpose of bringing him or her into legal
relations with third parties.’”’” (Castillo v. Glenair, Inc. (2018)
23 Cal.App.5th 262, 277; accord, Daniels v. Select Portfolio
Servicing, Inc. (2016) 246 Cal. App. 4th 1150, 1171.)
“‘A principal who personally engages in no misconduct may
be vicariously liable for the tortious act committed by an agent
within the course and scope of the agency.’” (Barenborg, supra,
33 Cal.App.5th at p. 85; accord, Secci v. United Independent Taxi
Drivers, Inc., supra, 8 Cal.App.5th at p. 855.) Moreover, a
principal is liable to a third party harmed by an agent’s conduct
when the principal later ratifies the agent’s conduct. (Rakestraw
v. Rodrigues (1972) 8 Cal. 3d 67, 73; Dickinson v. Cosby (2019)
37 Cal.App.5th 1138, 1158.) “Ratification is the voluntary
election by a person to adopt in some manner as his own an act
which was purportedly done on his behalf by another person, the
effect of which, as to some or all persons, is to treat the act as if
originally authorized by him.” (Rakestraw, at p. 73; accord,
Dickinson, at p. 1158.)
An allegation of agency constitutes an averment of ultimate
fact, which we accept as true on a demurrer. (Skopp v. Weaver
(1976) 16 Cal. 3d 432, 437; City of Industry v. City of Fillmore
(2011) 198 Cal. App. 4th 191, 212; Blickman Turkus, LP v. MF
Downtown Sunnyvale, LLC (2008) 162 Cal. App. 4th 858, 886.)
But where factual allegations are based on information and
belief, the plaintiff must allege “information that ‘lead[s] [the
plaintiff] to believe that the allegations are true.’” (Doe v. City of
Los Angeles (2007) 42 Cal. 4th 531, 551, fn. 5 [plaintiffs failed
adequately to allege city and its police department were on notice
of police officer’s prior unlawful sexual conduct, noting plaintiff
could not plausibly allege the city or police department withheld
40
or concealed evidence of their knowledge or notice]; accord,
Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4th
1149, 1158-1159 [trial court properly denied leave to amend
because plaintiff had no information to support allegations on
information and belief as to assignments of note].)
Here, plaintiffs allege on information and belief Gitelman
was an agent of USOC and USAT, but they fail to allege any
information that led them to believe he acted as USOC’s and
USAT’s agent.12 On appeal, plaintiffs point to their allegations
USOC certified USAT as a national governing body, USOC
exercised control over USAT by requiring adoption of policies and
procedures, and USOC had authority to place USAT on
probation. As to USAT, plaintiffs point to their allegations USAT
is the national governing body for taekwondo, it formulates
policies and procedures governing local taekwondo coaches, and it
requires athletes to be members of USAT and to train under
USAT-registered coaches. These allegations show USOC was
able to exercise control over USAT, and USAT in turn could
exercise control over Gitelman. But the allegations do not
establish how USOC and USAT granted Gitelman “‘“‘authority to
12 Plaintiffs allege in their general allegations Gitelman was
an agent of USOC and USAT; he acted within the scope of his
authority as an agent; and USOC and USAT ratified his tortious
and unlawful activities. However, the specific allegations assert
only upon information and belief Gitelman was acting as an
agent of USOC and USAT. As discussed, the specific allegations
based on information and belief control over the general
allegation Gitelman acted as an agent for USOC and USAT.
(Ferrick v. Santa Clara University, supra, 231 Cal.App.4th at
p. 1352; Perez v. Golden Empire Transit Dist., supra,
209 Cal.App.4th at p. 1236.)
41
act for and in the place of the principal for the purpose of
bringing him or her into legal relations with third parties.’”’”
(Castillo v. Glenair, Inc., supra, 23 Cal.App.5th at p. 277; accord,
Daniels v. Select Portfolio Servicing, Inc., supra, 246 Cal.App.4th
at p. 1171.)
In seeking leave to amend the complaint, plaintiffs have
not set forth facts they could allege to show an agency
relationship. Thus, the trial court did not abuse its discretion in
denying leave to amend as to the derivative claims based on
Gitelman’s purported agency relationship with USOC or USAT.
3. Plaintiffs have not adequately alleged an employment
relationship between Gitelman and either USOC or
USAT
Plaintiffs also base their claims for negligence, negligent
and intentional infliction of emotional distress, and the negligent
hiring or retention of Gitelman on his alleged status as an
employee of USOC and USAT. Under the respondeat superior
doctrine, “‘an employer may be held vicariously liable for torts
committed by an employee within the scope of employment.’”
(Patterson v. Domino’s Pizza, LLC (2014) 60 Cal. 4th 474, 491;
accord, Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995)
12 Cal. 4th 291, 296.) “Under certain circumstances, the
employer may be subject to this form of vicarious liability even
for an employee’s willful, malicious, and criminal conduct.”
(Patterson, at p. 491; accord, Lisa M., at pp. 296-297.) “To be
within the scope of employment, the incident giving rise to the
injury must be an outgrowth of the employment, the risk of
injury must be inherent in the workplace, or typical of or broadly
incidental to the employer’s enterprise.” (Torres v. Parkhouse
42
Tire Service, Inc. (2001) 26 Cal. 4th 995, 1008; accord, Lisa M., at
p. 298.) “[A] sexual tort will not be considered engendered by the
employment unless its motivating emotions were fairly
attributable to work-related events or conditions.” (Lisa M., at
p. 301; accord, City of Murrieta, supra, 102 Cal.App.4th at p. 907
[“The focus is on whether the assault arose out of the exercise of
job-created law enforcement authority over the plaintiff, not
whether the officer’s activity was characteristic or foreseeable.”];
see Farmers Ins. Group v. County of Santa Clara (1995)
11 Cal. 4th 992, 1006 [“except where sexual misconduct by on-
duty police officers against members of the public is involved . . . ,
the employer is not vicariously liable to the third party for such
misconduct”].)
In addition, “an employer may be liable to a third party for
negligently hiring or retaining an unfit employee.” (J.W. v.
Watchtower Bible Tract Society of New York, Inc. (2018)
29 Cal.App.5th 1142, 1163; accord, Phillips v. TLC Plumbing,
Inc. (2009) 172 Cal. App. 4th 1133, 1139.) “Negligence liability
will be imposed on an employer if it ‘knew or should have known
that hiring the employee created a particular risk or hazard and
that particular harm materializes.’” (Phillips, at p. 1139; accord,
ZV v. County of Riverside (2015) 238 Cal. App. 4th 889, 903
[county not liable for negligent supervision of social worker where
county had no prior knowledge of social worker’s propensity to
commit sexual assault]; Juarez, supra, 81 Cal.App.4th at pp. 395,
397 [Boy Scouts not liable for negligent hiring, supervision, and
retention of scoutmaster where they were not on notice
scoutmaster “posed an unreasonable risk to minors”].)
To support their derivative claims for negligence, negligent
hiring and retention, and the negligent and intentional infliction
43
of emotional distress, plaintiffs allege upon information and
belief Gitelman was an employee of USOC and USAT and acted
within the scope of his employment. But plaintiffs do not allege,
as required, any information that led them to believe Gitelman
was an employee of USOC or USAT. (Doe v. City of Los Angeles,
supra, 42 Cal.4th at p. 551, fn. 5; Gomes v. Countrywide Home
Loans, Inc., supra, 192 Cal.App.4th at pp. 1158-1159.) To the
contrary, they allege Gitelman “owned and/or was employed by
defendant NVT.”
Moreover, in seeking leave to amend, plaintiff do not
present facts they could allege to show an employment
relationship with USOC or USAT. Thus, the trial court did not
abuse its discretion in denying leave to amend the derivative
claims based on Gitelman’s purported employment relationship
with USOC or USAT.
D. Plaintiffs Have Not Alleged Facts Sufficient To State a
Claim for the Intentional Infliction of Emotional Distress
“A cause of action for intentional infliction of emotional
distress exists when there is ‘“‘“(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 plaintiffs’ suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct.”’”’ [Citations.] A
defendants’ conduct is ‘outrageous’ when it is so ‘“‘extreme as to
exceed all bounds of that usually tolerated in a civilized
community.’”’ [Citation.] And the defendant’s conduct must be
‘“‘intended to inflict injury or engaged in with the realization that
injury will result.’”’” (Hughes v. Pair (2009) 46 Cal. 4th 1035,
44
1050-1051, quoting Potter v. Firestone Tire & Rubber Co. (1993)
6 Cal. 4th 965, 1001; accord, Christensen v. Superior Court (1991)
54 Cal. 3d 868, 903.)
As to USOC’s and USAT’s direct liability, USAT’s failure to
adopt and implement adequate policies and procedures to prevent
the sexual abuse of taekwondo athletes, and USOC’s failure to
require USAT to take prompt action to protect youth athletes,
were not, as a matter of law, 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.) To the extent
USAT did not protect plaintiffs from Gitelman after learning in
September 2013 of Brown’s sexual abuse allegations, that could
potentially support a claim against USAT for the intentional
infliction of emotional distress. But plaintiffs have not alleged
facts showing Gitelman continued to sexually abuse (or even
coach) any of the plaintiffs after Gitelman’s sexual abuse of
Brown was disclosed to USAT in September 2013. Bordon and
Gatt stopped competing in taekwondo events in 2010. Plaintiffs
allege Gitelman stopped coaching Brown sometime in 2013, but
have not alleged or asserted on appeal that Gitelman continued
to coach Brown after she disclosed the sexual abuse and appeared
at the October 2013 USAT ethics committee hearing. Moreover,
plaintiffs do not explain how they could amend their complaint to
allege additional facts to support this claim.
DISPOSITION
We affirm the judgment of dismissal as to USOC. We
reverse the judgment of dismissal as to USAT and remand for
further proceedings consistent with this opinion. On remand, the
45
trial court should consider USAT’s motion to strike, which it
denied as moot.
USOC is entitled to recover its costs on appeal from
plaintiffs. Plaintiffs are entitled to recover their costs on appeal
from USAT.
FEUER, J.
WE CONCUR:
PERLUSS, P. J.
ZELON, J.
46