Case Number:?BC624620????Hearing Date:?February 06, 2018????Dept:?A

# 3.?Anna G. v. Paramount Iceland Skating Rink, Inc., et al.

Case No.:?BC624620

Matter on calendar for:?Hearing on demurrer

Tentative ruling:

  1. Background

In her First Amended Complaint (?FAC?), Plaintiff Anna G. asserts causes of action for:

(1)????Premises Liability;

(2)????Violations of Penal Code;

(3)????Negligence;

(4)????Negligent Misrepresentation;

(5)????Intentional or Reckless Misrepresentation;

(6)????Fraud and Deceit;

(7)????Assault;

(8)????Civil Battery;

(9)????Sexual Battery;

(10)?False Imprisonment;

(11)?Negligent Infliction of Emotional Distress (?NIED?);

(12)?Intentional Infliction of Emotional Distress (?IIED?);

(13)?Negligent Hiring and Retention;

(14)?Negligent Training and Supervision; and

(15)?Negligent Failure to Warn.

Defendant United States Figure Skating Association (?USFSA?) demurs to all causes of action asserted against it: causes of action 3-5, 11, 12, 14, and 15. USFSA also moves to strike punitive damages.

The Court previously sustained USFSA?s demurrer to Plaintiff?s original complaint with leave to amend.

Plaintiff?s former figure skating coach, Donald Vincent, allegedly sexually abused Plaintiff in Fall of 2011, while Plaintiff was homeschooling at his apartment. (FAC, ?? 25-30.) Plaintiff further alleges:

  • Vincent became Plaintiff?s skating coach in 2009.
  • Darlene Sparks, the Director of Programs at Paramount Iceland Skating Rink (?Iceland?), was Vincent?s supervisor at Iceland, and ?received numerous complaints regarding Vincent?s misconduct, but for several years did nothing to protect Plaintiff?? (Id., ? 25.)
  • Vincent began homeschooling Annie in Spring 2011. (Id., ? 33.)
  • Sparks sent an incident report to USFSA in December 2011,?after the alleged sexual assault of Plaintiff by Vincent.?(Id., ? 45.)
  • USFSA filed a grievance against Vincent, but closed it shortly thereafter. (Id., ? 48.)
  • Per Sparks, ?USFSA had prior knowledge and additional information regarding Vincent other than the incidents submitted in [Sparks?] report which led to USFSA?s grievance.? (Id., ? 49.)
  • With respect to USFSA, generally:

o???USFSA established standards requiring Vincent to undergo a background check and purchase a policy of liability insurance.

o???USFSA established a ?SafeSport Program? stating, via USFSA website and a SafeSport handbook, that sexual misconduct by coaches would not be tolerated.

o???Plaintiff competed, coached by Vincent, at USFSA-sponsored skating events.

o???Coaches who were members of USFSA knew or had reason to know of ?Vincent?s inappropriate, controlling behavior.? (Id., ? 67.)

o????Plaintiff is informed and believes the first USFSA grievance filed against Vincent, years after his misconduct and inappropriate and illegal behavior was known to USFSA? allowed him to self-monitor, did not lead to an investigation, and created no accountability.? (Id., ? 68.)

o???USFSA, by listing Vincent as a registered USFSA coach, allowed him to portray himself as a trustworthy, USFSA-compliant coach and mentor. (Id., ? 117.)

  1. Standard

Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (CCP ? 430.10(e);?Zelig v. County of Los Angeles?(2002) 27 Cal.4th?1112, 1126.) In ruling on a demurrer, the Court shall accept all material allegations in the Complaint as true. (Blank v. Kirwan?(1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe?(1994) 7 Cal.4th?634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service?(2000) 81 Cal.App.4th?39, 43.) A plaintiff must allege the ?essential facts? with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.? (Gressley v. Williams?(1961) 193 Cal.App.2d 636, 643-644.) The Court makes no factual findings on demurrer. (Id.)

III.????????????????Analysis

  1. Third Cause of Action for Negligence

This cause of action remains defective for three reasons.

First, with respect to duty, Plaintiff alleges that a ?special relationship? existed between USFSA and Plaintiff. Generally, the existence of a special relationship must be established through facts showing that ?the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff?s welfare.? (Kockelman v. Segal?(1998) 61 Cal.App.4th 491, 499.)

Plaintiff relies on?Doe v. United States Youth Soccer Association, Inc.?(2017) 8 Cal.App.5th 1118.?Doe?involved the sexual abuse of a minor by her former soccer coach. The?Doe?court found that a special relationship existed between the plaintiff and the United States Youth Soccer Association (?US Youth?). The plaintiff was a member of the United States Youth Soccer Association and played soccer on the West Valley Youth Soccer League team that was coached by the perpetrator; West Valley was the local affiliate of US Youth and California Youth Soccer Association, Inc., and was required to comply with US Youth policies and rules; and US Youth established the hiring standards for West Valley soccer coaches, including the coach who abused the plaintiff.

With respect to control, this action is distinguished from?Doe?because:

(1)????Co-defendants Iceland, Glacial Gardens, and Skating Edge are not alleged to be local affiliates of USFSA. These co-defendants and their individual managers, not USFSA, were allegedly ?responsible for all aspects of figure skating connected with [those facilities], including overseeing the coaches, overseeing all activities that went on at the facility, and handling all complaints?) (FAC, ?? 16, 19, 55)); and

(2)????USFSA is not alleged to have established the hiring standards for coaches like Vincent (which may explain why Plaintiff dropped her Negligent Hiring claim against USFSA).

Second, to establish duty, both sides agree that Plaintiff must plead facts showing that USFSA had ?actual knowledge? of the specific danger Vincent presented. (Chaney v. Superior Court?(1995) 39 Cal.App.4th 152.) Plaintiff cites to paragraphs 49, 67-69, 158, 168, 175-176, and 185-186 in the FAC, but these paragraphs are conclusory and fail to establish that USFSA knew of Vincent?s assaultive properties before Vincent abused Plaintiff. Further, Paragraph 68 alleging USFSA knew about Vincent?s misconduct for ?years,? is pled on ?information and belief,? but as the California Supreme Court has noted, allegations based on ?information and belief? are insufficient ?without alleging such information that [l]eads [the plaintiff] to believe the allegations are true.? (Doe v. City of Los Angeles?(2007) 42 Cal.4th 531, 551, n.5.) [Citations omitted.]

Plaintiff otherwise pleads that USFSA was made aware of Vincent?s ?inappropriate behavior? when Darlene Sparks, the Director of Programs at Paramount Iceland Skating Rink (?Iceland?), sent an incident report to USFSA in December 2011,?after the alleged sexual assault of Plaintiff by Vincent.?(FAC, ?? 36-42, 45.) These allegations are insufficient to establish USFSA?s requisite ?actual knowledge.?

Third, Plaintiff again fails to plead facts demonstrating causation. (November 9, 2017 Minute Order.) Plaintiff does not allege what USFSA did or did not do that proximately caused Plaintiff?s injuries.

  1. Fourth Cause of Action for Negligent Misrepresentation

A viable negligent misrepresentation claim must be supported by facts showing: ?[M]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another?s reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage.? (Shamsian v. Atlantic Richfield Co.?(2003) 107 Cal.App.4th 967, 983.) This cause of action sounds in fraud and must be pled with particularity. (Daniels v. Select Portfolio Servicing, Inc.?(2016) 246 Cal.App.4th 1150, 1166.)

Plaintiff alleges USFSA fraudulently represented to the world that Vincent was a good coach and was monitored to ensure safety for the children he coached. Absent more facts, Plaintiff has failed to plead this cause of action with particularity. The Court sustains the demurrer.

?

  1. Fifth Cause of Action for Intentional or Reckless Misrepresentation

?The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.? (Chapman v. Skype Inc.?(2013) 220 Cal.App.4th 217, 230-231.) This cause of action sounds in fraud and must be pled with particularity. (Id.)

As in the fourth case of action for NIED, Plaintiff alleges USFSA fraudulently represented to the world that Vincent was a good coach and monitored to ensure safety for the children he coached. Absent more facts, Plaintiff has failed to plead this cause of action with particularity. Plaintiff has failed to establish USFSA?s intent to induce reliance, justifiable reliance on any misrepresentation by USFSA, or damages resulting from reliance on any misrepresentation by USFSA.

Plaintiff also admits that this cause of action is defective.

The Court sustains the demurrer.

  1. Eleventh Cause of Action for NIED and Twelfth Cause of Action for IIED

A viable IIED claim must state facts showing: (1) outrageous conduct by the defendant; (2) intention to cause, or reckless disregard of the probability of causing, emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (Agarwal v. Johnson?(1979) 25 Cal.3d 932, 946.) A NIED claim requires showing that a defendant?s negligence was a substantial factor in causing the plaintiff?s serious emotional distress. (CACI 1620.)

Plaintiff?s failure to state a claim for negligence renders the NIED claim deficient. With respect to IIED, Plaintiff has failed to plead facts demonstrating ?outrageous conduct? by USFSA, or USFSA?s intention to cause emotional distress to Plaintiff (or recklessly disregard such risk). The Court sustains the demurrer.

  1. Fourteenth Cause of Action for Negligent Training and Supervision

The Court sustains the demurrer to the Negligent Training and Supervision claim because Plaintiff has failed to establish any employment agency relationship between USFSA and Vincent obligating USFSA to train or supervise him. In fact, Plaintiff alleges that Vincent was an agent of co-defendants Iceland and Skating Edge, not USFSA. (FAC, ? 130.) Plaintiff even alleges that Sparks, White, and Skating Edge were Vincent?s ?direct supervisor[s].? (Id., ?? 107-109.) The Court sustains the demurrer.

  1. Fifteenth Cause of Action for Negligent Failure to Warn

This cause of action did not appear in the original complaint. When the Court sustained USFSA?s demurrer to the original complaint, it did not address this cause of action. It appears to have been improperly added without leave of Court. Regardless, it is duplicative of Plaintiff?s negligence claim.

  1. Motion to Strike

Sustaining the demurrer with leave to amend, the Court denies the motion to strike as moot.

  1. Ruling

The Court sustains the demurrer with 20 days? leave to amend. Any responsive pleading must be filed 20 days thereafter, or 25 days if served by mail. The Court denies the motion to strike.

Next dates:

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Notice: USFSA