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).
"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.)
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 designated state 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.
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.
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
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.
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
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.
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 (West Valley 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
US Youth bylaws require that its state associations and each affiliate league collect and screen criminal conviction information on its coaches, trainers, volunteers, and administrators who will be in contact with US Youth child members, including those like plaintiff. US Youth permitted its state associations and leagues to collect this information by means of a "voluntary disclosure" form.
Though US Youth did not require criminal background checks by independent third parties, it negotiated a discounted rate with an online vendor to permit state associations, leagues, or teams to obtain nationwide criminal background checks on an applicant for $2.50 per search. By 2010, nearly all of the state associations within Region IV used third party independent sources to run annual criminal background checks on their volunteers, coaches, and trainers. US Youth kept records regarding which state associations did and did not conduct these background checks and distributed monthly reports indicating which individuals had been disqualified from participation in US Youth soccer programs due to prior convictions.
In 2009, Thomas Anderson, the founder of West Valley and a member of the Cal North Hall of Fame was charged in Santa Clara County with multiple felony child molestation offenses arising from incidents with two 11-year-old boys. Anderson had been a coach, volunteer, and referee for local US Youth activities until at least 1998. West Valley was unaware of Anderson's prior misdemeanor convictions of child sexual abuse from the mid-1990's, because it did not conduct criminal background checks.
When Fabrizio applied for a coach position with West Valley in 2010, he was required to fill out a form which asked whether he had been convicted of a felony, a crime of violence, or a crime against a person. The disclosure form stated that US Youth might deny certification to any person who has been convicted of these types of offenses. Though Fabrizio had been convicted in 2007 of battery against his spouse, he answered no to each of these categories and authorized Cal North and West Valley to confirm this information. Neither Cal North nor West Valley conducted a criminal background check.
The third cause of action incorporated by reference the negligence allegations and alleged that they amounted to willful misconduct by US Youth and West Valley.
Though US Youth knew that voluntary disclosure by an applicant of his or her criminal convictions was ineffective, US Youth did not require its affiliates to conduct criminal background checks. The risk management committee of US Youth recommended that mandatory criminal background checks be required. A memorandum to US Youth stated: "From a risk management standpoint it certainly makes good sense to conduct criminal background checks of all volunteer and paid adults that have contact with US Youth Soccer players. But, from a negligence standpoint, regularly conducting criminal background checks of volunteers and paid adults creates a self-imposed duty to do the same for all that serve in a similar capacity. The failure to conduct such a check would be considered as a breach of duty, which, in turn could mean liability." West Valley also knew that a criminal background check would identify applicants who lied about their background on the self-disclosure form, but it failed to conduct criminal background checks.
West Valley also failed to take action when it learned of Fabrizio's inappropriate conduct towards plaintiff and failed to warn her parents. Though West Valley coaches knew that plaintiff was the target of Fabrizio's attention in June 2011, they continued to allow Fabrizio to have access to her. In fall 2011, the West Valley Board was informed that Fabrizio had "possible `bad intentions'" toward plaintiff and had continued to have one-on-one contact with plaintiff after he had been warned not to do so. Nevertheless, the West Valley Board did not report its suspicions to Cal North, Region IV officials, law enforcement authorities, child protective services, or plaintiff's parents. Plaintiff's parents were not told that West Valley suspended Fabrizio because it feared that Fabrizio was going to or had sexually abused plaintiff. West Valley also chose not to interview plaintiff and her parents, because it did not want a scandal or lawsuit.
Plaintiff contends that defendants had a duty to protect her from criminal conduct by Fabrizio.
There is a "distinction between action and inaction, or misfeasance and nonfeasance. Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention." (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49 [123 Cal.Rptr. 468, 539 P.2d 36].) "[A]bsent misfeasance, `as a general matter, there is no duty to act to protect others from the conduct of third parties.' [Citation.] [¶] Even in the case of nonfeasance, there are `recognized exceptions to the general no-duty-to-protect rule,' one of which is the special relationship doctrine. [Citations.] `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.' [Citation.]" (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531-532 [107 Cal.Rptr.3d 481].)
Here, plaintiff's negligence cause of action rested upon defendants' nonperformance of acts or nonfeasance, that is, defendants' failure to require or conduct criminal background checks and to warn or educate her about the risks of sexual abuse. Thus, defendants had no duty to plaintiff unless they stood in a special relationship to her.
West Valley and Cal North argue that Juarez is distinguishable from the present case, because, here, parents were present at practices, games, and
West Valley and Cal North point out that a school district has a special relationship with the district's students "arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel." (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869-870 [138 Cal.Rptr.3d 1, 270 P.3d 699].) They then argue that since participation on the West Valley team was voluntary, there could be no special relationship.
This court rejected the same argument in a case involving a daycare provider's duty to disclose suspected molestation: "But mandatory attendance is merely one of multiple bases for the special relationship in a school context. As M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 524-525 [1 Cal.Rptr.3d 673] makes clear, the special relationship between a school and its pupils is also based on `the expectation and reliance of parents and students on schools for safe buildings and grounds, and the importance to society of the learning activity that takes place in schools.' That expectation of safety is equally present when parents entrust their children to a daycare provider like Camp, which stood in loco parentis while minor was at the camp. [Citation.]" (Doe v. Superior Court (2015) 237 Cal.App.4th 239, 247 [187 Cal.Rptr.3d 791].) Similarly, here, parents entrusted their children to defendants with the expectation that they would be kept physically safe and protected from sexual predators while they were at soccer practices.
Relying on N.K. v. Corp. of Presiding Bishop of Church of Jesus of Latter-Day Saints (2013) 175 Wn.App. 517, 536 [307 P.3d 730] (N.K.), and Doe v. Big Brothers Big Sisters of America (2005) 359 Ill.App.3d 684, 692, 702 [296 Ill.Dec. 108, 834 N.E.2d 913] (Big Brothers), US Youth contends that it lacked physical custody and control, and thus had no special relationship with plaintiff.
N.K. involved facts almost identical to those in Juarez, that is, a boy scout brought a negligence action against the Boy Scouts of America and the local
We disagree with N.K. and Big Brothers and find Juarez more persuasive. Here, plaintiff was a member of US Youth and played on a West Valley team, which was the local affiliate of US Youth and Cal North. West Valley was required to comply with the policies and rules of US Youth. Since US Youth established the standards under which coaches were hired, US Youth determined which individuals, including Fabrizio, had custody and supervision of children involved in its programs.
In sum, we conclude that, as in Juarez, there was a special relationship between defendants and plaintiff.
Relying on Juarez, supra, 81 Cal.App.4th 377 and Doe 1 v. City of Murrieta (2002) 102 Cal.App.4th 899 [126 Cal.Rptr.2d 213] (Doe I), plaintiff argues
Juarez involved facts regarding foreseeability that are similar to those in the present case. In that case, the Scouts had no information that the scoutmaster had previously molested a child or had a propensity to do so. (Juarez, supra, 81 Cal.App.4th at p. 386.) The court in Juarez pointed out that the Scouts had reported, "on average, more than one incident of sexual abuse per week for the past two decades, and with many more cases going unreported. [Citation.]" (Id. at p. 403.) The court in Juarez also noted that the Scouts had acknowledged in the "Boy Scout Handbook" that half of the incidents of child abuse were not reported. (Ibid.) Reasoning that its "analysis must focus on the foreseeability of harm occurring, not its probability, a more stringent standard," the court in Juarez concluded that it was reasonably foreseeable to the Scouts that a child participating in their program might be sexually molested by an adult volunteer. (Id. at pp. 403-404.)
In Doe I, two 16-year-old participants in the police department's "explorer" program brought an action against the City of Murrieta and the Murrieta Police Department for, among other things, negligence. (Doe I, supra, 102 Cal.App.4th at p. 904.) As part of the explorer program, police officers served as explorer advisors, who took explorers on one-on-one ride-alongs. (Id. at p. 905.) As to foreseeability, the court in Doe I noted that the plaintiffs frequently went on one-on-one ride-alongs late at night with the explorer adviser, spent an unusual amount of time with him, called him frequently, and often waited for him for a ride home. (Id. at p. 914.) The explorer advisor's superior was aware of this conduct and the plaintiffs' infatuation with him. (Ibid.) In addition, the court in Doe I referred to the Explorer Leader Handbook, which indicated an awareness of the potential for explorers to be sexually abused if certain procedures were not followed. (Id. at pp. 914-915.) The court in Doe I concluded that it was reasonably foreseeable that the explorer adviser would sexually abuse the plaintiffs. (Ibid.)
Here, defendants had no knowledge that Fabrizio had previously sexually or physically abused anyone or had a propensity to do so. But US Youth was "aware of incidents of physical and sexual abuse of US Youth Soccer's members by its coaches at a steady yearly rate of between 2 and 5 per year." More importantly, in recognition of the risks of sexual abuse to its players, US Youth had developed the KidSafe Program, which included a pamphlet that stated: "`One out of every 4 girls and one out of every 6 boys will be
US Youth's reliance on Chaney v. Superior Court (1995) 39 Cal.App.4th 152 [46 Cal.Rptr.2d 73] (Chaney), Romero v. Superior Court (2001) 89 Cal.App.4th 1068 [107 Cal.Rptr.2d 801] (Romero), Margaret W. v. Kelly R. (2006) 139 Cal.App.4th 141 [42 Cal.Rptr.3d 519] (Margaret W.), and J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388 [99 Cal.Rptr.3d 5] (J.L.) does not persuade us otherwise.
In Chaney, supra, 39 Cal.App.4th 152, the defendant's husband sexually molested the plaintiff when she was a minor. (Id. at p. 155.) The plaintiff alleged that the defendant had negligently supervised her in the couple's home, because the defendant failed to recognize that her husband's "`excessive attention'" and "`excessive'" gift-giving indicated the possibility that he was sexually molesting the plaintiff. (Id. at p. 156.) The court in Chaney concluded: "Without knowledge of her husband's deviant propensities, a wife will not be able to foresee that he poses a danger and thus will not have a duty to take measures to prevent the assault. Although a wife's knowledge may be proven by circumstantial evidence, such inference must reflect the wife's actual knowledge and not merely constructive knowledge or notice." (Id. at p. 157.) Thus, the court in Chaney held that evidence presented by the plaintiff was insufficient to show that the defendant's husband's conduct was foreseeable. (Id. at p. 158.)
In Romero, supra, 89 Cal.App.4th 1068, the minor plaintiff and several other teenagers visited the defendants' home. (Id. at pp. 1073-1074.) The
In Margaret W., supra, 139 Cal.App.4th 141, the defendant allowed her teenage daughter to invite her friends, including the plaintiff, to sleep at their house while she was gone for the evening. (Id. at p. 145.) Her daughter and one of her friends agreed that they would not drink any alcohol, have a party, or leave the house. (Id. at p. 146.) After the defendant left, they began drinking and other teenagers, including boys, arrived. (Ibid.) The plaintiff became intoxicated and left with the boys. (Id. at p. 147.) When one of the girls called the defendant and told her that her daughter had passed out, the defendant returned home to discover that the plaintiff and another girl had left "`to party with a bunch of people.'" (Ibid.) No one told the defendant that the plaintiff and another girl were alone with three boys or at a boy's house. (Ibid.) At some point, the plaintiff called and asked if she could return to the defendant's home, but did not indicate that she was concerned for her safety. (Id. at pp. 147-148.) The defendant, who was upset that the girls had not complied with her rules and was busy caring for her daughter, told them that they should go home. (Id. at p. 148.) During the night, the plaintiff was sexually assaulted by the boys. (Ibid.) The court in Margaret W. reasoned that "foreseeability must be measured by what the defendant actually knew. None of these cases has held that a defendant owed a duty to take steps to prevent or respond to third party crime on the basis of constructive knowledge or information the defendant should have known." (Id. at p. 156.)
In J.L., supra, 177 Cal.App.4th 388, the defendant Children's Institute, Inc. (CII), a nonprofit corporation, provided licensed childcare services. (Id. at p. 391.) CII also entered into contracts with daycare providers and referred eligible families to these family daycare homes. (Ibid.) These contracts stated, in part, that a childcare provider was not to be considered either an agent or an employee of CII. (Id. at p. 392.) The minor plaintiff was in the care of one of the family daycare homes. (Id. at p. 393.) After the plaintiff's mother saw a teenager playing outside the home, the daycare provider told her that her grandson was visiting. (Ibid.) There was no evidence of either inappropriate behavior by him or a history of sexual abuse, but the teenager ultimately sexually assaulted the plaintiff at the home. (Ibid.) The court in J.L. held that
Chaney, Romero, Margaret W., and J.L. involved criminal conduct by family members or guests that occurred in homes, and there was no evidence to indicate that criminal conduct by these individuals was in any way foreseeable. The present case, like Juarez, involved criminal conduct by a member of an organization that provided activities exclusively for children. More importantly, here, defendants 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. J.L. is further distinguishable from the facts before us, because Fabrizio was an employee of West Valley and a member of US Youth and these organizations controlled which individuals had access to the children in their programs. In contrast to Chaney, Romero, Margaret W., and J.L., these factors indicate a reasonably foreseeable risk of sexual abuse to children participating in defendants' programs.
We next consider the burden to defendants of requiring and implementing criminal background checks.
US Youth argues that it would impose a tremendous burden to mandate criminal background checks for employees and volunteers in defendants' programs, because the availability of criminal background checks varies among the states. Citing Gibbons and Campbell, Liability of Recreation and Competitive Sport Organizations for Sexual Assaults on Children by Administrators, Coaches and Volunteers, 13 J. Legal Aspects Sport 185 (2003) at pages 192-193, US Youth also argues that volunteers working with children in the majority of states are not required to undergo criminal background checks and private entities are not allowed to obtain national criminal background checks on volunteers in many states.
We first note that the American Youth Soccer Organization, another national youth soccer organization, has required criminal background checks for its volunteers and coaches in these jurisdictions. Moreover, US Youth has required criminal background checks for all coaches and referees participating in its youth olympic development program in the state associations since 2008. US Youth kept records of which state associations did and did not obtain these criminal background checks, and distributed reports of individuals who had been disqualified from participation in its youth programs. Since US Youth had demonstrated the administrative ability to ensure compliance with mandatory criminal background checks, the burden would not have been
Our consideration of the remaining Rowland factors supports a determination that defendants had a duty to conduct criminal background checks of adults who would have contact with children in their soccer programs. The parties agree that plaintiff was injured by Fabrizio's conduct. The connection between plaintiff's harm and defendants' failure to conduct a criminal background check was close. If defendants had conducted a criminal background check of Fabrizio, 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
But the factor of moral blame weighs in favor of defendants. There is nothing in the present record indicating that defendants were in any way involved in the sexual assault of plaintiff or knew that Fabrizio would harm her. Nor did defendants act in bad faith or with reckless indifference to the consequences of failing to conduct criminal background checks. Defendants made an attempt to identify potential sexual predators by requiring that an applicant disclose his or her prior criminal convictions and authorize that the information be verified. Though this procedure proved ineffective in the present case, it was not unreasonable to expect that an applicant, who had a prior conviction, would abandon his or her application. Accordingly, we do not attribute moral blame to defendants.
Regarding the consequences to the community and the availability and cost of insurance, US Youth argues that the imposition of a duty of care "could lead to potentially ruinous liability" and force the termination of US Youth and similar organizations.
Yet we reach a different conclusion with respect to plaintiff's claim that defendants had a duty to protect her from Fabrizio's conduct by "warn[ing], train[ing], or educat[ing] her (either directly or through her parent or adult employees or team volunteers) about the risk of sex abuse in their programs from their coaches and of its guidelines to protect her and best practices for youth to avoid abuse."
Plaintiff does not discuss the training or educating that defendants should have done. Instead, she argues that a "warning could have been as simple as handing out an existing KidSafe Brochure, or going over KidSafe guidelines at the pre-season parent meeting," and thus the burden would have been minimal. We disagree. The subject of sexual abuse of children is a complicated one, and plaintiff's attempt to minimize the burden on defendants is not persuasive. Defendants are sports organizations. Children participate in these organizations to develop their athletic skills and to learn sportsmanship. These organizations are not designed to educate children, their parents, and others regarding the risk of sexual abuse. As US Youth points out, "there are no uniform standards for educating parents and children about the dangers of child predation in youth sports organizations. As such, it would be a daunting task to know at what age children should first be educated about sexual molestation, and to what extent." Moreover, many parents would consider the education of their children about the risk of sexual abuse to be their responsibility, not that of a youth sports organization. Plaintiff does not address these concerns. In our view, the burden imposed on defendants of
The present case is also distinguishable from Juarez, supra, 81 Cal.App.4th 377 on this issue. In Juarez, the defendants had already developed a comprehensive program, including written materials and videotapes, to educate adult volunteers, parents, and boy scouts. (Juarez, at p. 398.) All paid employees were required to participate in a training program, which set forth guidelines and training for volunteers, staff, and parents regarding protection against sexual molestation. (Ibid.) The Boy Scout Handbook, which was distributed to every boy scout, also included a 24-page pamphlet for parents on how to protect children from child and drug abuse. (Juarez, at p. 399.) A Spanish language version of the handbook was available, but the plaintiff and his mother, who spoke only Spanish, were given the English language version. (Ibid.) The scoutmaster was also primarily Spanish-speaking and had never received any information regarding abuse prevention in Spanish. (Id. at p. 400.) Since there was already information available in the Spanish language, Juarez concluded that "people and systems are already in place to see that vital information needed to combat child sexual abuse is communicated at every level of scouting." (Id. at p. 408.)
The facts in the present case are different from those in Juarez. First, "millions of American parents partner with the Scouts collectively for the development of their children's core values." (Juarez, supra, 81 Cal.App.4th at p. 408.) No such relationship exists between parents of soccer players and defendants. Second, boy scouts are required to engage in a range of activities that are "`designed to teach the moral principles to which the organization subscribes.' [Citation.]" (Ibid.) Defendants' activities for soccer players are not similarly designed. Third, the program developed and implemented by the Scouts was far more extensive than the KidSafe Program. Accordingly, Juarez does not persuade us that the burden on defendants would be slight.
Here, the creation and implementation of a sexual abuse education program to protect children in defendants' programs would be extraordinarily burdensome. Balancing this burden against the level of foreseeability of sexual abuse in the present case, we decline to impose a duty on defendants to protect children by these means. Nor does consideration of the remaining Rowland factors persuade us otherwise.
Plaintiff also contends that US Youth and West Valley engaged in willful misconduct.
Plaintiff argues that US Youth engaged in willful misconduct when it chose not to require criminal background checks for the harm it knew was occurring. She claims US Youth was more concerned about its potential liability if it imposed this requirement on all state associations. Though US Youth knew that children participating in its programs were at risk of sexual abuse, they did not have actual or constructive knowledge that injury to
Plaintiff next argues that West Valley failed to take action when it learned of Fabrizio's inappropriate conduct. She asserts that West Valley knew facts no later than June 2011 that indicated that she was at risk of harm from Fabrizio and did not warn her parents of its concerns. Plaintiff points out that Fabrizio singled her out for rides alone in his car. Plaintiff ignores that her parents made the decision to allow him to drive her alone to games, practices, and tournaments. While Fabrizio and plaintiff almost always put away equipment in the shed, this conduct did not indicate that Fabrizio was sexually abusing her. Moreover, we fail to see how photographs of Fabrizio holding his arm around plaintiff at a team social event and at a San Francisco tournament, particularly when others were present in the photographs, would have indicated possible sexual abuse.
Plaintiff refers to an incident at the Santa Cruz tournament in which Fabrizio "sat next to plaintiff in the sand at the Santa Cruz [tournament], and, while burying each other with sand, touched her and allowed her to touch him." This allegation is contradicted in her third amended complaint, which she may not now avoid. (Berg, supra, 178 Cal.App.4th at p. 1035.) Her third amended complaint alleged: "At a break during the tournament, Fabrizio sat in the beach sand surrounded by several `OA' girls, including plaintiff. [¶] Fabrizio was laughing with the girls while the girls were near him, some in soccer shorts and others in bathing suits. Some girls, including plaintiff, were putting sand on his body and smoothing sand over him. Other `OA' officials besides Fabrizio were present and saw this activity occurring." No reasonable person would view a group of children burying their coach in the sand at a beach as indicating that the coach had a sexual interest in any of the children.
Plaintiff also notes that Fabrizio took two walks at the Santa Cruz tournament with her, which caused some parents and other girls to gossip about romantic or sexual activity between Fabrizio and her. The third amended complaint contradicted the inference that there was sexual or romantic activity between them based on this conduct. (Berg, supra, 178 Cal.App.4th at p. 1035.) It alleged that when plaintiff was questioned by M.R., she denied any sexual conduct with Fabrizio and began crying. T.B. asked her why she was crying and she stated that some girls were being mean to her. Given that the other coaches and parents were aware that Fabrizio was
In sum, West Valley's failure to warn plaintiff's parents in June 2011 did not constitute willful misconduct, because none of Fabrizio's conduct provided West Valley with actual or constructive knowledge that Fabrizio's sexual abuse of plaintiff was probable.
Plaintiff argues that since Fabrizio committed these acts with "an abnormal or unnatural sexual interest" in her, he violated Penal Code sections 288, subdivision (a) and 647.6, and thus Z.D. and M.R. witnessed acts of sexual abuse.
Plaintiff next argues that the West Valley Board "must have known, and did know, at the latest by the time it fired Fabrizio that [she] had suffered sexual abuse."
Z.D. informed Hughes that there had been "`rumors'" about Fabrizio having "`some bad intentions'" toward plaintiff and another player and he was concerned about some of Fabrizio's "`traits.'" As previously noted, plaintiff denied the rumors of any impropriety by Fabrizio and complained that the other girls were being mean to her with their comments. Plaintiff's allegations also do not specify the nature of Fabrizio's "`bad intentions'" and "`traits,'" and thus, one cannot reasonably infer that Z.D. told Hughes that he was concerned that plaintiff had suffered sexual abuse. Z.D. also informed Hughes that Fabrizio had continued to have one-on-one contact with plaintiff after he had been warned not to do so. This allegation does not support plaintiff's position that West Valley had actual or constructive knowledge that she was being sexually abused, since her parents were friendly with Fabrizio and allowed her to spend this time alone with him.
Plaintiff contends that West Valley "fired Fabrizio, in part, as alleged, because of Fabrizio's conduct at the Santa Cruz tournament." But when West
Here, plaintiff states that she can allege the following facts. Z.D. and M.R. told the West Valley Board that they observed Fabrizio with "his arm around [plaintiff's] hip, holding her closely — as though she were his girlfriend — not in passing or in jest but for a protracted period of time" in May 2011. M.R. told the West Valley Board about Fabrizio's "similar close holding" of plaintiff in late June 2011. The West Valley Board was also informed that Fabrizio and plaintiff were "flirtatiously playing in the sand," took two walks at the Santa Cruz tournament, and M.R. asked plaintiff whether she had engaged in oral sex with Fabrizio. The West Valley Board learned from Z.D. that when Z.D. reprimanded Fabrizio after the second walk in Santa Cruz, Fabrizio responded by yelling at Z.D., crying, and running off. Plaintiff then chased after Fabrizio and asked him to return, but he did not. He only returned after the final game to drive plaintiff home. These allegations make clear that the West Valley Board was informed regarding Fabrizio's conduct in May and June 2011. But the only newly alleged facts refer to Z.D.'s reprimand of Fabrizio and Fabrizio's response, and these facts do not include the substance of their conversation. In our view, such facts do not establish
The judgment is reversed. On remand, the trial court is directed to vacate its order sustaining the demurrers without leave to amend. The trial court is further directed to enter a new order sustaining the demurrers without leave to amend as to the cause of action for willful misconduct and overruling the demurrers as to the cause of action for negligence. The parties are to bear their own costs.
Elia, Acting P. J., and Grover, J., concurred.
Here, US Youth provided the KidSafe Program educational pamphlets to each state association and presented KidSafe Program materials at annual and regional meetings. It also posted a link on its Web site to the KidSafe Program materials. However, US Youth did not require that Cal North forward KidSafe Program materials to West Valley or require that Cal North and West Valley employees or volunteers be trained in the KidSafe Program. Though Cal North adopted the KidSafe Program, it did not train or educate West Valley about the program. By merely providing information about sexual abuse in the KidSafe Program and presenting seminars on this issue, US Youth and Cal North did not increase the risk of harm to plaintiff. Plaintiff also did not rely on their undertaking. Accordingly, we reject plaintiff's argument.
