Brown v. USA Taekwondo

• Decision Date: 08 October 2019
• Docket Number: B280550
• Citation: 40 Cal.App.5th 1077,253 Cal.Rptr.3d 708
• Court: California Court of Appeals Court of Appeals
• Parties: Yazmin BROWN et al., Plaintiffs and Appellants, v. USA TAEKWONDO et al., Defendants and Respondents.

40 Cal.App.5th 1077

253 Cal.Rptr.3d 708

Yazmin BROWN et al., Plaintiffs and Appellants,

v.USA TAEKWONDO et al., Defendants and Respondents.

B280550

Court of Appeal, Second District, Division 7, California.

Filed October 8, 2019

As Modified on Denial of Rehearing November 6, 2019

Estey & Bomberger, Stephen J. Estey, San Diego; Corsiglia McMahon & Allard, B. Robert Allard, San Jose; Williams Iagmin and Jon R. Williams, San Diego, for Plaintiffs and Appellants.

Kjar, McKenna, Stockalper, Patrick E. Stockalper and Mina M. Morkos, Los Angeles, for Defendant and Respondent USA Taekwondo.

Clyde & Co., Douglas J. Collodel, Los Angeles, Margaret M. Holmand M. Christopher Hall, Irvine, for Defendant and Respondent United States Olympic Committee.

FEUER, J.

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 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 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

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 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 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 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 ...