Case Number: BC714406 Hearing Date: October 30, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEMURRER TO PLAINTIFF’S COMPLAINT; OVERRULED AND SUSTAINED, IN PART

I. BACKGROUND

On July 17, 2018, plaintiff John Doe 5 (“Plaintiff”) filed a complaint against defendants American Youth Soccer Organization (“AYSO”) and Does 1 to 100 alleging causes of action for (1) Negligence, (2) Negligent Hiring, Retention and Supervision, (3) Negligent Failure to Warn Train or Educate, (4) negligence per se, and (5) Sexual Battery. The complaint includes a prayer for punitive damages.

The complaint arises from the alleged sexual abuse of John Doe 5 by Renoir Valenti (“Valenti”) while Plaintiff was a minor. The complaint in relevant part alleges that Valenti was a volunteer coach and/or referee for AYSO who utilized his position within AYSO, to sexually molest Plaintiff on multiple occasions from 2000 until 2005. (Complaint ¶¶ 3, 53.) The complaint further alleges that even though AYSO was put on notice of Valenti’s dangerous propensities as a sexual predator on various occasions, and despite having enacted policies and procedures to protect children from sexual assault, AYSO failed to take appropriate actions such as removing Valenti as a volunteer, informing the police of Valenti’s actions or warning Plaintiff or his parents of Valenti’s dangerous propensities in order to prevent Valenti from molesting Plaintiff. (Id. ¶¶ 15-21, 26, 31-45, 57.) The complaint also alleges that Valenti was convicted in 2014 for molesting fourteen boys, six of whom played on AYSO soccer teams. (Id. ¶ 3.)

On September 17, 2018, AYSO filed a demurrer and a motion to strike. On October 17, 2018, Plaintiff filed oppositions.

II. LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at 747.)

A motion to strike lies either (1) to strike any “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP § 436.)

III. DISCUSSION

a. Meet and Confer Requirement

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41, 435.5.) The Court notes that AYSO has fulfilled the meet and confer requirement pursuant to CCP sections 430.41 and 435.5. (Decl. Hall.)

b. Third Cause of Action: Negligent Failure to Warn, Train or Educate

AYSO contends the third cause of action fails to state a claim because while the third cause of action alleges that AYSO failed to warn or train Plaintiff or his parents regarding the warnings signs of childhood sexual abuse by AYSO volunteers, AYSO did not owe Plaintiff a duty to Plaintiff to provide such warnings or training.

In opposition, Plaintiff argues that AYSO misunderstands the allegations of the third cause of action because the third cause of action is not limited to AYSO failing to warn or train Plaintiff and Plaintiff’s parents, rather the third cause of action also alleges that AYSO failed to train AYSO employees and volunteers. Plaintiff contends that by implementing the Safe Harbor program, which was intended to protect AYSO youth members like Plaintiff from abuse, AYSO undertook a duty to educate and train its volunteers to recognize signs of abuse and to make appropriate reports, however the program that was put in place was substandard and increased the risk to minor participants like Plaintiff.

The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917–918.) The general rule is that a person who has not created a peril is not liable in tort for failing to take affirmative action to protect another unless they have some relationship that gives rise to a duty to act. (Paz v. State of California (2000) 22 Cal.4th 550, 558–559.) However, one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking. (Id.)

AYSO’s contention that it did not owe Plaintiff or his parents a duty to warn or train them about signs of childhood sexual abuse by AYSO volunteers is based on Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118. In Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, a minor soccer player filed action for negligence and willful misconduct against national and state youth soccer associations and regional youth soccer league, stemming from alleged sexual abuse by minor’s former soccer coach. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1122.) The Court of Appeal found that the creation and implementation of a sexual abuse education program to protect children in the defendants’ programs would be extraordinarily burdensome. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1139.) Essentially, national and state youth soccer associations and a youth soccer league did not have duty under negligent undertaking doctrine to protect minor soccer player from former coach’s sexual abuse by warning, training, or educating minor about the risks of sexual abuse in youth soccer programs; although the national association provided educational pamphlets about risk of sexual abuse to each state association and presented seminars on the issue, merely providing information about sexual abuse did not increase risk of harm to a minor, and a minor did not rely on national association’s undertaking regarding issue of risk of sexual abuse. (Id. at 1138-1139.)

The Court finds that Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118 is distinguishable from the instant case because, unlike in Jon Doe v. United States, here the complaint alleges that AYSO implemented an actual program, the Safe Haven program, which was intended to protect children from abuse by AYSO volunteer and employee. (Complaint ¶¶ 15-21.) The complaint describes what the Safe Haven program required of AYSO employees and volunteers including the obligation to report improper activities between AYSO coaches and players and the complaint further alleges that AYSO volunteers failed to make such reports regarding Valenti and Plaintiff. (Complaint ¶¶ 15-23, 26-47, 66.) Since AYSO implemented and adopted such a program for the benefit of its youth members including Plaintiff, AYSO undertook a duty to exercise due care in enforcing and abiding by the program. (See, Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 406 [finding that the Boy Scouts had a duty of care to take reasonable measures to protect a scout from the risk of sexual abuse by adult volunteers in light of the fact that a “Youth Protection Program” was created by the Scouts and the Scouts failed to take reasonable steps to see that the information the program was likely to be communicated to the scouts, parents or an adult leader of a troop.].) Here, the complaint alleges that AYSO failed to exercise due care in enforcing this program and that the failure to do so increased the risk of harm to children like Plaintiff thereby subjecting AYSO to liability. (See Paz v. State of California (2000) 22 Cal.4th 550, 558–559.)

Therefore, the Court finds that the complaint sufficiently alleges facts to support the third cause of action. Thus, the demurrer to the third cause of action is OVERRULED.

c. Fourth Cause of Action: Negligence per se

AYSO demurs to the negligence per se claim on the grounds that: (1) negligence per se is not a separate cause of action but is rather an evidentiary presumption, (2) provisions of Penal Code section 11166 do not create a private cause of action and thus it cannot be asserted as an independent cause of action and (3) while the complaint alleges that AYSO volunteers had a duty to report suspected child abuse to the police, volunteers are not mandated reporters under the statute.

In opposition, Plaintiff argues that: (1) while it is generally true that negligence per se is not a standalone cause of action, here since Penal Code section 11166 establishes a special duty of care beyond that underlying common law negligence, the negligence per se sufficiently states an independent cause of action; (2) negligence per se is not the same as a private cause of action and thus AYSO’s argument concerning whether Penal Code section 11160 creates a private cause of action is not relevant; and (3) AYSO volunteer administrators are mandated reporters pursuant to the text of Penal Code sections 11165.7(a)(7).

Negligence per se is not a separate cause of action (see Johnson v. Honeywell International, Inc. (2009) 179 Cal.App.4th 549, 555; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285), rather, it is a separate theory of negligence upon which recovery may be based. (See e.g., Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1086-87.)

The Court notes that Plaintiff cites to Connell v. Harris (1913) 23 Cal.App. 537 and Landeros v. Flood (1976) 17 Cal.3d 399 to support the contention that negligence per se can be alleged as a separate cause of action since the Penal Code imposes a special duty of care beyond that underlying common law negligence. The Court finds Plaintiff’s reliance on these cases unconvincing on the grounds that (1) these cases were decided well before Johnson, Quiroz and Randi W and (2) since the fourth cause of action negligence per se is based on the same allegations as the first cause of action for negligence, namely failure to inform law enforcement officials that Valenti was sexually abusing youth soccer players, (compare complaint ¶ 57 with ¶¶ 73-75) the Court finds that the fourth cause of action is duplicative of the first cause of action and thus subject to demurrer. (See Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

The Court also notes that Plaintiff’s argument that “mandated reporter” applies to volunteer administrators is not persuasive. Notably, Penal Code section 11165.7(a)(7) defines a mandated reporter, among other things, as an administrator or employee of a public or private youth center, youth recreation program, or youth organization. However, section 11165.7(b) states that “mandated reporter” does not include volunteers of public or private organizations whose duties require direct contact with and supervision of children are not mandated reporters but are encouraged to obtain training in the identification and reporting of child abuse and neglect and are further encouraged to report known or suspected instances of child abuse or neglect to an agency specified in Section 11165.9. Plaintiff argues that the legislature meant for unpaid volunteer administrators to be mandated reporters just as paid administrators are, but Plaintiff offers no authority to support such a proposition. The Court finds that under a plain reading of the Penal Code section 11165.7, “volunteers”, are not defined as mandated reporters; this includes volunteer administrators. Thus, the fourth cause of action is deficient for this reason as well.

Accordingly, the Court SUSTAINS the demurrer to the fourth cause of action without leave to amend. Since the Court sustained the demurrer as analyzed above, a discussion of whether Penal Code section 11166 creates a private cause of action is unnecessary.

d. Fifth Cause of Action: Sexual Battery

AYSO contends that Plaintiff fails to plead sufficient facts to state a claim for sexual battery and to warrant punitive damages on the grounds that (1) the complaint fails to allege sufficient facts to show that AYSO ratified Valenti’s conduct, (2) the complaint does not plead that a National AYSO officer, director, or managing agent ratified Valenti’s and (3) corporate ratification for purposes of punitive damages requires actual knowledge of employee misconduct, which the FAC does not plead. Plaintiff opposes on the grounds that the complaint sufficiently alleged that AYSO ratified Valenti’s sexual abuse of children and thus based on these allegations, the complaint sufficiently warrants punitive damages.

An employer may be liable for an employee’s acts where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (Baptist v. Robinson (2006) 142 Cal.App.4th 151, 169.) “The failure to discharge an employee who has committed misconduct may be evidence of ratification.” (Id.) “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” (Id.) Whether an employer has ratified an employee’s conduct, so as to impose liability on the employer, is generally a factual question. (Id.)

First, AYSO argues that the complaint fails to allege that AYSO was made aware of Valenti’s sexual molestation of Plaintiff and that AYSO ratified such conduct. The Court notes that paragraphs 26 through 45 of the complaint set forth various incidents which allegedly placed AYSO on notice of the fact that Valenti posed a danger to Plaintiff and other children as a sexual predator. The complaint further alleges that despite having such knowledge, AYSO maintained Valenti as a volunteer and thus ratified his conduct. (Complaint ¶¶ 33-35, 80.) For example, the complaint alleges that: (i) at least one AYSO volunteer reported her concerns to AYSO regarding Valenti’s inappropriate behaviors prior to 2002, but no remedial action or reporting to lawful civil or criminal authorities was done (Complaint ¶ 33); (ii) beginning in 1996 or 1997, the regional commissioner of AYSO Region 91 was suspicious that Valenti was a child predator; and (iii) by 2001, a region 91 board member – T.B.- made eight to ten reports to AYSO personnel between 2001 and 2004 regarding Valenti’s conduct with children, however, Valenti was allowed to continue to referee and coach for AYSO (Complaint ¶¶ 34-35). As such, the Court finds that the complaint sufficiently alleges that AYSO was on notice that Valenti posed a threat to children such as Plaintiff.

The Court notes that C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1112 instructs us that ratification can be alleged based on a defendant’s knowledge of an agent’s conduct. In C.R., the operative complaint alleged in relevant part that managing agents and supervisors of the defendant knew that an agent or employee was sexually abusing patients and refused to take action so that the agent could continue working; while this was occurring, the agent sexually assaulted a female employee, however no disciplinary action was taken. (Id.) These allegations were deemed sufficient to allege ratification. (Id.) Here, like in C.R., the complaint alleges that AYSO, through its directors, was aware that Valenti was a sexual predator and posed a risk to children like Plaintiff and despite such knowledge, AYSO failed to take action to prevent harm to children such as Plaintiff. (Complaint ¶¶ 33-35, 80.) Thus, the Court finds that the complaint sufficiently alleges ratification by AYSO.

Second, AYSO contends that “officer, director, or managing agent” under Civil Code § 3294(b) is a corporate actor with substantial authority over decisions that determine corporate policy. AYSO asserts that the AYSO Regional Commissioners, along with the Area and Section Directors, are not such corporate actors under Civil Code § 3294(b) because they do not exercise such substantial authority. Thus, AYSO contends that the complaint fails to sufficiently allege that a National AYSIO officer, director or managing agent ratified Valenti’s conduct.

The complaint alleges that the “Regional commissioners, Area and Section Directors along with the National Board members serve as executive members with voting rights who have the ability to influence corporate policy.” (Complaint ¶ 13.) AYSO argues that this is not sufficient authority for purposes of Civil Code section 3294(b), however, this contention goes to questions of fact that are not properly resolved by a demurrer. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) While the complaint alleges that the AYSO National Board of Directors governs the overall organization (Complaint ¶ 13), Plaintiff presents facts sufficient to show that the AYSO Regional Commissioners and Area/Section Directors are more than mere low level employees or supervisors.

Finally, AYSO asserts that the complaint does not allege any facts that show that an AYSO officer, director, or managing agent had actual knowledge of Valenti’s misconduct or unfitness. However, the complaint alleges that AYSO knew of Valenti’s dangerous propensities through its directors and managing agents, including the AYSO Area Director for Area 10D, the Region 91 Regional Commissioner, and the Regional Board. (Complaint ¶¶ 34-35.) The complaint specifically alleges that beginning in 1996 or 1997, the Regional Commissioner of AUSO Region 91 was suspicious that Valenti was a child predator and that the AYSO Area 10D Director, C.J. was informed by various AYSO agents and managing agents about their concerns about Valenti. (Complaint ¶ 35.) In fact, the complaint alleges that C.J. knew of Valenti’s dangerous propensities during Valenti’s time in region 91. (Id. ¶ 37.) In addition, Plaintiff alleges that by 2001, T.B., a regional board member became concerned regarding Valenti’s conduct with children and made eight to ten reports to AYSO personnel concerning behaviors dating back to 2001, which included Valenti always being surrounded by large groups of boys and always having large groups of boys in his car, which was in violation of AYSO policy. (Id. ¶ 35.) The complaint also alleges that T.B. informed another AYSO representative that Valenti was a “predator.” (Id.)

Thus, the complaint puts forth allegations that show AYSO officers, directors, or managing agents had actual knowledge of Valenti’s misconduct or unfitness and failed to take corrective action.

Accordingly, the Court OVERRULES the demurrer to the fifth cause of action.

e. Motion to Strike

AYSO moves to strike allegations and prayers for punitive damages. The arguments are essentially the same as those made in the demurrer. The Court found that the complaint sufficiently states a claim for sexual battery against AYSO. Such a claim supports the inference that AYSO acted with conscious disregard of the rights or safety of Plaintiff thus warranting punitive damages. (Civ. Code § 3294.) To the extent that AYSO contends that allegations in the complaint are irrelevant or prejudicial, the Court disagrees. The allegations in the complaint support Plaintiff’s theory that AYSO failed to take action to prevent Plaintiff from being sexually abused.

Accordingly, for the same reasons that the Court overruled the demurrer to the fifth cause of action, the Court DENIES the motion to strike.

V. CONCLUSION

Therefore, the Court OVERRULES the demurrer to the third and fifth causes of action and SUSTAINS the demurrer to the fourth cause of action without leave to amend. The motion to strike is DENIED. AYSO is ordered to file an answer within ten days of this order.

Parties who intend to submit on this tentative must send an email to the Court at sscdept7@lacourt.org as directed by the instructions provided on the Court website at www.lacourt.org.

Moving Party is ordered to give notice.