Doe v. U.S. Youth Soccer Ass'n, Inc.

8 Cal.App.5th 1118

214 Cal.Rptr.3d 552

Jane DOE, a Minor, etc., Plaintiff and Appellant,

v.UNITED STATES YOUTH SOCCER ASSOCIATION, INC. et al., Defendant and Respondent.

H040688

Court of Appeal, Sixth District, California.

Filed February 22, 2017

As Modified on Denial of Rehearing March 16, 2017

Kelly Raftery, Andrew Joseph Piunti, DPA Law Group, San Jose, for Plaintiff and Appellant.

Margaret Manton Holm, M. Christopher Hall, Sedgwick LLP, Irvine, Rachel Elizabeth Hobbs, Neil Howard Selman, Selman Breitman LLP, Los Angeles, for Defendant and Respondent United States Youth Soccer Association, Inc.

Oscar Amor Pardo, David Fernando Beach, Deborah Sandine Bull, Perry, Johnson, Anderson, Miller & Moskowitz LLP, Santa Rosa, for Defendants and Respondents California Youth Soccer Association, Inc. and West Valley Youth Soccer League

Mihara, J.Plaintiff Jane Doe, a minor, was sexually abused by Emanuele Fabrizio, her former soccer coach. Plaintiff filed an action for negligence and willful misconduct against defendants United States Youth Soccer Association, Inc. (US Youth), California Youth Soccer Association, Inc. (Cal North), and West Valley Youth Soccer League (West Valley).¹ The trial court sustained these defendants' demurrers to the fourth amended complaint on the ground that they had no duty to protect plaintiff from criminal conduct by a third party and entered a judgment of dismissal as to these defendants. We hold that defendants had a duty to conduct criminal background checks of all adults who would have contact with children involved in their programs. Accordingly, the judgment is reversed.

I. Standard of Review

"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865, 62 Cal.Rptr.3d 614, 161 P.3d 1168 (Dinuba ).) "Where, as here, a demurrer is to an amended complaint, we may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making ‘ " ‘contradictory averments, in a superseding, amended pleading.’ " ' [Citation.]" (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034, 100 Cal.Rptr.3d 875 (Berg ).) When the trial court has sustained the demurrer without leave to amend, this court must determine "whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse. [Citation.]" (Dinuba , at p. 865, 62 Cal.Rptr.3d 614, 161 P.3d 1168.)

II. Fourth Amended Complaint²

A. The Parties

Fabrizio sexually abused plaintiff, who was then 12 years old, from May 2011 until March 2012. After he pleaded no contest to continuous sexual abuse of a child and lewd and lascivious acts on a child under age 14, he was sentenced to 15 years in state prison.

US Youth is a national youth soccer association. Cal North is US Youth's designatedstate association, its highest administrative body in northern California, and a member of its Region IV. West Valley is an affiliated league of Cal North. Under US Youth's bylaws, Cal North and West Valley are required to comply with US Youth's rules for the operation of US Youth soccer programs. Fabrizio was employed by West Valley and was a member of US Youth. Plaintiff participated in US Youth soccer programs and played for West Valley's soccer teams.

B. Negligence

The second cause of action alleged negligence against US Youth, Cal North, and West Valley. Plaintiff alleged: defendants had a duty to protect her from Fabrizio's criminal conduct; defendants breached their duties to her by failing to conduct criminal background checks and by failing to warn or educate her about the risk of sexual abuse; and defendants' breach of their duties proximately caused her injuries.

1. The KidSafe Program

In 1994, US Youth acknowledged that pedophiles were drawn to its youth soccer program to gain access to children, and its program presented an unacceptable risk of harm to children unless appropriate preventative measures were taken. US Youth developed the KidSafe Program, which was designed to educate adult volunteers, coaches, employees, parents, and players participating in its soccer programs regarding the prevention and detection of sexual abuse. The KidSafe Program states that its ultimate objective is " ‘to exclude from participation in [US Soccer] activities all persons who have been convicted of felonies, crimes of violence or crimes against a person.’ "

Sometime in the mid-1990's, US Youth distributed hundreds of copies of its KidSafe Program pamphlets to each state association, including Cal North. Thereafter, US Youth sent copies of these educational pamphlets on request. Many of these pamphlets, which could be accessed through links on defendants' Web sites, emphasized the importance of teaching parents and other adults about the warning signs of sexual abuse in youth sports and how to detect predators. The pamphlets also listed safety guidelines, which set forth appropriate conduct for adults and outlined "red flags" or warning signs of abuse. In addition, US Youth presented KidSafe Program materials at annual and regional meetings.

Neither US Youth nor Cal North required that West Valley coaches, volunteers, trainers, and administrators receive or be trained in the KidSafe Program. West Valley never conducted any meetings for parents to discuss the KidSafe Program. Neither West Valley nor Cal North e-mailed links to the KidSafe Program pamphlets to parents of children participating in US Youth programs.

2. Fabrizio's Conduct

In the spring of 2011, Fabrizio was an assistant coach of two West Valley teams, OA 97 and OA 98. Plaintiff played for a short time on the OA 98 team and was later moved to the OA 97 team. As a coach, Fabrizio violated several of the US Youth safety guidelines: he held practices for which he was the only coach present in June 2011 and at the week-long soccer camp in August 2011; he made excessive and disproportionate physical contact with plaintiff; he drove plaintiff to and from practices and games alone; he helped her put away equipment after practices as the other players were leaving or had left and they could not be seen from the field; he singled out plaintiff for training sessions involving one or two players; he acted "impulsively, immaturely, and in an egocentric manner" by abruptly leaving the field during practices; and he used inappropriate and excessive physical discipline as well as foul and offensive language.

Fabrizio also spent extensive time alone with plaintiff on June 11 and 12, 2011. He drove her alone to and from a tournament in Santa Cruz, even though her parents attended 30 minutes of the final game. During the tournament, Fabrizio took plaintiff alone for two walks. After parents and girls speculated about whether there was romantic or sexual activity between plaintiff and Fabrizio, plaintiff became upset by the girls' comments and told the coaches and the team parent, T.B. M.R., a coach, asked plaintiff whether she and Fabrizio had engaged in a sexual act. The coaches later held two team meetings to discuss the comments and tried to get the girls to apologize to plaintiff.

Fabrizio engaged in grooming behavior of plaintiff and her family when he became friendly with them, visited them at their home, was helpful to them, and offered to drive plaintiff to games and practices and to pick her up from such events when her parents were unable to do so. Z.D., a coach, M.R., and parents knew that plaintiff's parents trusted Fabrizio and were friendly with him.

3. Reassignment and Eventual Termination of Coaching Privileges

After parents complained about Fabrizio's harsh discipline of the girls prior to September 2011, West Valley reassigned him to a boys' soccer team. Since the boys' team practiced at the same time as the girls' team, Fabrizio continued to select plaintiff and sometimes another girl to practice with the boys.

Z.D. discovered that Fabrizio was trying to take over the OA 97 girls' team and become the sole head coach. On November 12, 2011, Z.D. informed Scott Hughes, a member of the West Valley Board of Directors (Board) that there had been "rumors" about Fabrizio having "some bad intentions" toward some of the players on the team. Z.D. stated that he "had dealt with" these problems by instituting a "code of conduct" for Fabrizio, but some of Fabrizio's "traits" concerned him. Z.D. asked to speak with Hughes privately. Later that day, Z.D. notified Fabrizio that he was suspended from coaching duties at West Valley. He listed the reasons for the suspension: lack of respect for the players on the boys' team, using foul language with OA 97 players, and spending one-on-one time with players.

Two days later, West Valley notified parents of OA 97 and OA 98 players that Fabrizio had been suspended from coaching, but provided no reasons for the suspension. West Valley never interviewed plaintiff, other OA players, or their parents about Fabrizio. About a week later, Hughes informed Fabrizio that West Valley had conducted an investigation and learned that he had not followed several Cal North rules, including the physical contact and language rules. He also informed Fabrizio that his coaching privileges would not be reinstated.

Though it became more difficult for Fabrizio to have contact with plaintiff, he continued to do so. Since West Valley did not inform plaintiff's parents that Fabrizio had been suspended due to inappropriate touching of plaintiff and...