Filed 3/16/17 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JANE DOE, a Minor, etc.,

Plaintiff and Appellant,

v.

UNITED STATES YOUTH SOCCER 

ASSOCIATION, INC. et al.,

Defendant and Respondent.

 H040688

 (Santa Clara County

 Super. Ct. No. CV238994)

 ORDER MODIFYING OPINION

 AND DENYING REHEARING

 [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on February 22, 2017, be modified as 

follows:

1. On page 11, the first full paragraph, beginning with the fourth sentence “While 

parents were present” through the end of that paragraph ending with “during these 

practices” delete and replace it with the following so it reads:

“There are allegations that some parents were present at some games, social events, and 

practices, but these allegations do not state whether parents were present for the entire 

game, social event, or practice. Moreover, there are no allegations that all, or even a 

majority, of the parents were present at all soccer-related activities. Thus, as in the 

school, day care, and scouting settings, defendants, through the coaches, acted as “quasiparents” by assuming responsibility for the safety of the players whose parents were not 

present.”
2

2. On page 12, the second full paragraph, delete the last sentence beginning with 

“Similarly, here” and replace it with the following sentence so the sentence reads:

“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 

participated in soccer activities.” 

There is no change in the judgment.

The petition for rehearing is denied.

______________________ _________________________________

Date Mihara, J.

__________________________________

Elia, Acting P. J.

___________________________________

Grover, J.

Doe v. United States Youth Soccer Association, Inc. et al.

H040688
3

Trial Court: Santa Clara County Superior Court

Trial Judge: Honorable Kevin E. McKenney

Attorney for Plaintiff and Appellant: Kelly Raftery

Andrew Joseph Piunti

DPA law Group

Attorneys for Defendant and Respondent

United States Youth Soccer Association, Inc.: Margaret Manton Holm

M. Christopher Hall

Sedgwick LLP

Rachel Elizabeth Hobbs

Neil Howard Selman

Selman Breitman LLP

Attorneys for Defendants and Respondents

California Youth Soccer Association, Inc. 

and West Valley Youth Soccer League: Oscar Amor Pardo

David Fernando Beach

Deborah Sandine Bull

Perry, Johnson, Anderson, Miller &

Moskowitz LLP

Doe v. United States Youth Soccer Association, Inc. et al.

H040688
Filed 2/22/17 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JANE DOE, a Minor, etc.,

Plaintiff and Appellant,

v.

UNITED STATES YOUTH SOCCER 

ASSOCIATION, INC., et al.,

Defendant and Respondent.

 H040688

 (Santa Clara County

 Super. Ct. No. CV238994)

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. 

 

1

 The complaint also included a cause of action for assault and battery against 

Fabrizio. He is not a party to this appeal. 
2

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 (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 (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.) 
3

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 

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. 

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. 

 

2

 When the trial court strikes all or part of a pleading under Code of Civil Procedure 

section 435 et seq., this court reviews the order for abuse of discretion. (Quiroz v. 

Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1282.) However, a trial court’s 

exercise of discretion that rests on an error of law is an abuse of discretion. (Catalina 

Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1124.) Since we will 

conclude that the trial court erred in ruling that defendants had no duty to conduct 

criminal background checks, it abused its discretion in striking certain allegations on the 

ground that they were irrelevant. Accordingly, our summary of the fourth amended 

complaint includes all relevant allegations. 
4

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 
5

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. 
6

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 one-on-one contact with 

plaintiff, West Valley withheld information that would have put plaintiff’s parents on 

notice that they needed to be “extra vigilant” in keeping Fabrizio away from plaintiff. 

4. Criminal Background Checks

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 
7

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. 
8

C. Willful Misconduct

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. 
9

III. Discussion

A. Negligence

1. General Principles

Plaintiff contends that defendants had a duty to protect her from criminal conduct 

by Fabrizio. 

In order to succeed in an action for negligence, the plaintiff must establish that the 

defendant owed him or her a legal duty, the defendant breached that duty, and the breach 

proximately caused his or her injuries. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 

1142 (Kesner).) The first element, duty, “may be imposed by law, be assumed by the 

defendant, or exist by virtue of a special relationship.” (Potter v. Firestone Tire & 

Rubber Co. (1993) 6 Cal.4th 965, 985.) “‘Duty is a question of law for the court, to be 

reviewed de novo on appeal.’” (Kesner, at p. 1142, quoting Cabral v. Ralphs Grocery 

Co. (2011) 51 Cal.4th 764, 770.) 

In general, “each person has a duty to use ordinary care and ‘is liable for injuries 

caused by his failure to exercise reasonable care in the circumstances . . . .’ ” (Parsons v. 

Crown Disposal Co. (1997) 15 Cal.4th 456, 472 (Parsons), quoting Rowland v. Christian

(1968) 69 Cal.2d 108, 112 (Rowland).) Absent a statutory exception to this general rule, 

courts should find an exception to the duty of reasonable care only where “clearly 

supported by public policy. [Citations.]” (Rowland, at p. 112.) 

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.) “[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. 
10

[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.) 

In cases involving nonfeasance and a special relationship between a plaintiff and a 

defendant, courts have balanced the policy factors set forth in Rowland, supra, 69 Cal.2d 

108 to assist in their determination of the existence and scope of a defendant’s duty in a 

particular case. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) These factors 

include: “‘“[T]he foreseeability of harm to the plaintiff, the degree of certainty that the 

plaintiff suffered injury, the closeness of the connection between the defendant’s conduct 

and the injury suffered, the moral blame attached to the defendant’s conduct, the policy 

of preventing future harm, the extent of the burden to the defendant and consequences to 

the community of imposing a duty to exercise care with resulting liability for breach, and 

the availability, cost, and prevalence of insurance for the risk involved.” ’ [Citations.] 

Foreseeability and the extent of the burden to the defendant are ordinarily the crucial 

considerations, but in a given case one or more of the other Rowland factors may be 

determinative of the duty analysis. [Citations.]” (Ibid.) 

2. Special Relationship Doctrine

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.

A special relationship exists when “the plaintiff is particularly vulnerable and 

dependent upon the defendant who, correspondingly, has some control over the plaintiff’s 

welfare. [Citation.]” (Kockelman v. Segal (1998) 61 Cal.App.4th 491, 499.) Juarez 

v.Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377 (Juarez) is instructive. In 

Juarez, the plaintiff, a boy scout, brought an action against the Boy Scouts of America, 

Inc. and the San Francisco Bay Area Council (collectively, the Scouts) for, among other 
11

things, negligence for failing to take reasonable measures to protect him from sexual 

abuse by his scoutmaster. (Id. at pp. 384-385.) The court in Juarez considered the 

special relationship doctrine in determining the defendants’ duty and observed: 

“Generally, a greater degree of care is owed to children because of their lack of capacity 

to appreciate risks and avoid danger. [Citation.] Consequently, California courts have 

frequently recognized special relationships between children and their adult caregivers 

that give rise to a duty to prevent harms caused by the intentional or criminal conduct of 

third parties. Recognized special relationships include an operator of a preschool or day 

care center to the children in attendance [citation]; a school district to a mother whose 

child was sexually molested by another student because the school stood in loco parentis 

while the child was in attendance [citation]; and the wife of a sexual offender to children 

she invited to play in her home because ‘being of tender years they were particularly 

vulnerable to this sort of misconduct and not fully able to protect themselves against it. 

[Citation.]’ [Citation.]” (Id. at p. 410.) Based on the vulnerability of children and the 

insidious methods of sexual offenders, the court in Juarez held that there was a special 

relationship between the Scouts and the plaintiff. (Id. at p. 411.) 

West Valley and Cal North argue that Juarez is distinguishable from the present 

case, because, here, parents were present at practices, games, and team social events, and 

thus “they never acted as quasi-parents with respect to the players.” They also note that, 

unlike in Juarez, there were no allegations that plaintiff participated in any overnight 

soccer activities. The record does not completely support their argument. While parents 

were present at games and social events and there is no mention of any overnight 

activities, the record establishes that parents were only present at practices when they 

dropped off the players or arrived to pick them up. Players typically spend far more time 

at practices than at games or soccer social events. As in the school, day care, and 

scouting settings, defendants, through the coaches, acted as “quasi-parents” by assuming 

responsibility for the safety of the players during these practices. 
12

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 District (2012) 53 Cal.4th 861, 869-870.) 

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 day care 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 . . . 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 day care 

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.) 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. Corporation of Presiding Bishop of Church of Jesus of LatterDay Saints (Wash. App. 2013) 175 Wash.App. 517, 536 (N.K.), and Doe v. Big Brothers 

Big Sisters of America (Ill. App. 2005) 359 Ill.App.3d 684, 692, 702 (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 boy scouting council 

for failing to protect him from sexual abuse by a scout leader. (N.K., supra, 175 
13

Wash.App. at p. 522.) The court in N.K. stated that it had been unable to find authority 

that “has allowed a case to proceed on the theory of a protective relationship in the 

absence of a custodial relationship between the organization and the victim” and held that 

there was no special relationship with the plaintiff. (N.K., at p. 535.) In Big Brothers, 

supra, 359 Ill.App.3d 684, the minor plaintiff filed an action against, among others, a 

national youth mentoring organization for negligently failing to protect him from sexual 

abuse by a volunteer for one of the local affiliates. (Id. at p. 692.) The court in Big 

Brothers held that there was no special relationship, because the plaintiff was not in the 

custody of the national organization. (Id. at p. 702.) 

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. 

3. Rowland Factors

We next consider the Rowland factors. We begin by examining whether it was 

foreseeable that a soccer coach would sexually abuse a player. “‘[A] duty to take 

affirmative action to control the wrongful acts of a third party will be imposed only 

where such conduct can be reasonably anticipated. [Citations.]’ [Citation.] Basically, 

‘the reasonableness standard is a test which determines if, in the opinion of a court, the 

degree of foreseeability is high enough to charge the defendant with the duty to act on it.’ 

[Citation.]” (Juarez, supra, 81 Cal.App.4th at p. 402.) Courts use a “sliding-scale 

balancing formula” under which “imposition of a high burden requires heightened 

foreseeability, but a minimal burden may be imposed upon a showing of a lesser degree 
14

of foreseeability.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243.) 

Heightened foreseeability can be shown by evidence of prior similar criminal incidents or 

“other indications of a reasonably foreseeable risk of violent criminal assaults . . . .” (Id.

at p. 244.) 

Relying on Juarez, supra, 81 Cal.App.4th 377 and Doe 1 v. City of Murrieta

(2002) 102 Cal.App.4th 899 (Doe I), plaintiff argues that there was heightened 

foreseeability of sexual abuse by a coach based on defendants’ knowledge of prior 

incidents and other indications of risk. Cal North and West Valley argue that plaintiff has 

shown only “a mere possibility of the risk of sexual abuse.” US Youth argues that there 

was no foreseeability as a matter of law, because it did not have actual knowledge of 

Fabrizio’s assaultive propensities. 

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 
15

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 sexually abused before the age of 18. Fact: Pedophiles are drawn to places where 

there are children. All youth sports, including youth soccer, are such places.’ ” Though 

these statements did not establish the rate of sexual abuse in youth soccer programs, they 

were an acknowledgement by US Youth that children playing soccer were at risk for 

sexual abuse. As to Cal North and West Valley, there is no indication of the frequency of 

sexual abuse incidents affecting players in their leagues. However, Cal North and West 

Valley had adopted the KidSafe Program, which acknowledged that their soccer 

programs attracted those who might sexually abuse their players and that there had been 

incidents of sexual abuse. Moreover, the year before Fabrizio submitted his application, 

both Cal North and West Valley were aware of multiple sexual abuse incidents involving 

Anderson, the founder of West Valley. It is not clear whether these incidents occurred as 
16

a result of his participation as a coach, volunteer, or referee for US Youth soccer 

activities, but these incidents demonstrated that pedophiles were drawn to activities 

involving children. Thus, while this record does not present evidence of heightened

foreseeability, we conclude that it was reasonably foreseeable to defendants that a child 

participating in their soccer program would be sexually abused by a coach.

US Youth’s reliance on Chaney v. Superior Court (1995) 39 Cal.App.4th 152 

(Chaney), Romero v. Superior Court (2001) 89 Cal.App.4th 1068 (Romero), Margaret W. 

v. Kelly R. (2006) 139 Cal.App.4th 141 (Margaret W.), and J.L. v. Children’s Institute

(2009) 177 Cal.App.4th 388 (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 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.” (Ibid.) 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 defendants were not 

aware that one of the teenagers had a history of misconduct at school, including fighting 

and sexual harassment of female students. (Id. at p. 1074.) When the defendants left 

their home for about an hour, he sexually assaulted the plaintiff. (Id. at p. 1075.) The 

plaintiff alleged that the defendants had failed to protect her against assaults by other 
17

invitees. (Id. at p. 1077.) The court in Romero concluded that “the question of whether 

the defendant owed a duty of reasonable care to the injured minor depends on whether 

the assailant minor’s conduct was reasonably foreseeable, but that conduct will be 

deemed to have been reasonably foreseeable only if the defendant had actual knowledge

of the assaultive propensities of the teenage assailant.” (Id. at p. 1081.)

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 day care providers and referred eligible families to these 
18

family day care homes. (Ibid.) These contracts stated, in part, that a child care 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 day care homes. (Id. at p. 393.) After 

the plaintiff’s mother saw a teenager playing outside the home, the day care 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 the teenager’s 

conduct was not foreseeable and the defendant owed no duty to protect against the 

assault, because there was no evidence that the defendant had “actual knowledge” of the 

teenager’s “assaultive tendencies or that he posed any risk of harm.” (Id. at p. 398.)

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 
19

Campbell, Liability of Recreation and Competitive Sport Organizations for Sexual 

Assaults on Children by Administrators, Coaches and Volunteers, 13 J. Legal Aspects 

Sport 185 (Fall 2003) pp. 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 significant. As 

to Cal North and West Valley, nearly all of the state associations in Region IV had been 

conducting criminal background checks on all volunteers, coaches, and trainers since 

2010, thus showing that it would not have been overly burdensome to Cal North and 

West Valley. 

US Youth argues that the cost of mandating criminal background checks would be 

substantial. US Youth relies on plaintiff’s third amended complaint, which states that US 

Youth registers “over 900,000 administrators, coaches and volunteers” annually and 

argues that “if criminal background checks cost $2.50 per check, this would amount to 

$2.25 million.” If members of a team or the applicant had paid for the criminal 
20

background check, defendants would not have born the cost.3 More importantly, there

was and continues to be no cost for criminal background checks in California pursuant to 

Penal Code section 11105.3. This statute provides that no fee shall be charged to 

nonprofit organizations for criminal background checks.4 

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 

 

3

 Assuming a soccer team has at least 11 players, a player’s cost per search would 

amount to no more than $0.23.

4 US Youth counters that this statute did not apply to “community youth athletic 

programs” until August 2013. US Youth is mistaken. Former Penal Code section 

11105.3 stated: “(a) . . . an employer may request from the Department of Justice records 

of all convictions . . . of a person who applies for a license, employment, or volunteer 

position, in which he or she would have supervisory or disciplinary power over a minor 

or any person under his or her care. . . . [¶] (b) . . . no fee shall be charged to a nonprofit 

organization.” In 2013, the Legislature amended Penal Code section 11105.3 to include 

the following: “(i) As used in this subdivision, ‘community youth athletic program’ 

means an employer having as its primary purpose the promotion or provision of athletic 

activities for youth under 18 years of age. [¶] (j) A community youth athletic program, 

as defined in subdivision (i), may request state and federal criminal history information 

pursuant to subdivision (a) for a volunteer coach or hired coach candidate. The director 

of the community youth athletic program shall be the custodian of records.” (Pen. Code, 

§ 11105.3, subds. (i), (j).) Legislative history states that this amendment “clarifies that a 

community youth athletic program may request state and federal background checks, as 

well as subsequent arrest notification, for a volunteer coach or hired coach candidate.” 

(Assem. Com. on Appropriations, Assembly Bill No. 465 (2013-2014 Reg. Sess.) 

Apr. 29, 2013, italics added.) It was also noted that “the background checks authorized 

in this bill can already be done under current law.” (Ibid.) Thus, since it is undisputed 

that defendants were nonprofit organizations, there would have been no cost to conduct 

criminal background checks.
21

hired. Thus, he would have had far fewer, if any, opportunities to sexually abuse 

plaintiff. As to the policy of preventing future harm, our society recognizes that the 

protection of children from sexual abuse is a paramount goal. (Randi W. v. Muroc Joint 

Unified School Dist. (1997) 14 Cal.4th 1066, 1078-1079.) Imposition of a duty to 

conduct criminal background checks on defendants would assist in the achievement of 

this goal.

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.5 US Youth points out that many insurers have begun including sexual 

misconduct exclusions in their policies and others have imposed various limitations on 

coverage. (Collins and Smethurst, McDermott Will & Emery, Insurance Coverage 

 

5

 Defendants also contend that mandating criminal background checks would deter 

volunteers from applying for positions with them. We fail to understand how conducting 

a criminal background check would deter volunteers, since defendants already require an 

applicant to disclose any prior convictions and to authorize defendants to confirm the 

applicant’s information. 
22

Issues Raised by Child Sexual Abuse Claims (December 6, 2011); Haller, Is There 

Coverage? Sexual Abuse Claims Against Nonparticipants, For the Defense (May 2013)

p. 71.) US Youth also claims that coverage, when available, is expensive. (Herman, 

Abuse Coverage Isn’t as Elusive as a Needle in a Haystack, but It Will Cost You.

https://www.nonprofitrisk.org/library/articles/insurance03112003.) In response, plaintiff 

has cited to an article at a recent American Bar Association seminar, which outlines the 

types of insurance available for sexual misconduct. (Insurance Coverage for Sexual 

Misconduct Claims, 

www.americanbar.org/content/dam/aba/administrative/litigation/materials/.) Since the 

availability and cost of insurance for defendants is uncertain, we decline to find these 

factors in favor of either plaintiff or defendants.

Here, balancing the degree of foreseeability of harm to children in defendants’

soccer programs against their minimal burden, we conclude that defendants had a duty to 

require and conduct criminal background checks of defendants’ employees and 

volunteers who had contact with children in their programs. Though we do not attribute 

moral blame to defendants, the other Rowland factors support our conclusion: plaintiff 

suffered injury, the connection between her injury and defendants’ failure to conduct a 

criminal background check was close, and preventing harm to children is a paramount 

goal of our society. Since we have found that defendants had a duty to plaintiff, the 

fourth amended complaint states sufficient facts to constitute a cause of action for 

negligence.6

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 

 

6

 Having concluded that the fourth amended complaint states a negligence cause of 

action against defendants, we need not consider whether West Valley negligently hired or 

retained Fabrizio.
23

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 

implementing a sexual abuse education program for millions of players, their parents, 

adult employees, and team volunteers would be substantial. 

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 
24

on how to protect children from child and drug abuse. (Id. 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.]” (Id. at p. 408.) 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.7

 

7

 Plaintiff also invokes the negligent undertaking doctrine. Under this doctrine, “a 

volunteer who, having no initial duty to do so, undertakes to provide protective services 

to another, will be found to have a duty to exercise due care in the performance of that 

undertaking if one of two conditions is met: either (a) the volunteer’s failure to exercise 

such care increases the risk of harm to the other person, or (b) the other person 

reasonably relies upon the volunteer’s undertaking and suffers injury as a result.” 

(Continued)
25

B. Willful Misconduct

Plaintiff also contends that US Youth and West Valley engaged in willful 

misconduct.

Willful misconduct is not a separate tort from negligence, but rather “ ‘ “ ‘an 

aggravated form of negligence, differing in quality rather than degree from ordinary lack 

of care’ [citation].” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) In order to 

establish willful misconduct, a plaintiff must prove not only the elements of a negligence 

cause of action, that is, duty, breach of duty, causation, and damage, but also “ ‘ “(1) 

actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive 

knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) 

conscious failure to act to avoid the peril. [Citations.]” ’ [Citation.]” (Id. at p. 528.) 

“‘[W]illful misconduct is not marked by a mere absence of care. Rather, it “ ‘ “involves a 

more positive intent actually to harm another or to do an act with a positive, active and 

absolute disregard of its consequences.” ’ ” ’ [Citations.]” (Manuel v. Pacific Gas & 

Electric Co. (2009) 173 Cal.App.4th 927, 940, quoting Calvillo-Silva v. Home Grocery

 

(Delgado, supra, 36 Cal.4th at p. 249.) “ ‘[I]n order for liability to be imposed upon the 

actor [under the negligent undertaking doctrine], he must specifically have undertaken to 

perform the task that he is charged with having performed negligently, for without the 

actual assumption of the undertaking there can be no correlative duty to perform that 

undertaking carefully.’ [Citation.]” (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 

614-615, italics added.)

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.
26

(1998) 19 Cal.4th 714, 729 overruled on other grounds in Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 853, fn. 19.)

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 children like plaintiff was probable. More importantly, since US Youth took 

some steps to avoid harm to plaintiff and others by requiring a voluntary disclosure form, 

their conduct did not involve a positive intent to harm children in their soccer programs 

or act with complete disregard of the consequences. Thus, plaintiff’s allegations against 

US Youth failed to support a cause of action for willful misconduct for their failure to

require criminal background checks. 

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 
27

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 a family friend, plaintiff’s denial was 

plausible. Thus, the coaches believed her and tried to get the other girls to apologize.

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 
28

647.6, and thus Z.D. and M.R. witnessed acts of sexual abuse.

8 Given that plaintiff 

eventually revealed sexual abuse by Fabrizio, Fabrizio’s conduct in June 2011 can now 

be viewed in an entirely different light. However, his conduct did not indicate to a 

reasonable person at that time that plaintiff was at risk 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.

 

8

 A violation of Penal Code section 288, subdivision (a) is committed by “any 

person who willfully and lewdly commits any lewd or lascivious act, . . . upon or with the 

body, or any part or member thereof, of a child who is under the age of 14 years, with the 

intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of that 

person or the child . . . .” “A violation of section [Penal Code] section 647.6 requires 

proof of the following elements: [¶] 1. The defendant engaged in conduct directed at a 

child; [¶] 2. A normal person, without hesitation, would have been disturbed, irritated, 

offended, or injured by the defendant’s conduct; [¶] 3. The defendant’s conduct was 

motivated by an unnatural or abnormal sexual interest in the child or children generally; 

and [¶] 4. The child was under age 18 at the time of the conduct.” (People v. Valenti

(2016) 243 Cal.App.4th 1140, 1161.) 
29

Plaintiff contends that West Valley “fired Fabrizio, in part, as alleged, because of 

Fabrizio’s conduct at the Santa Cruz tournament.” But when West Valley fired Fabrizio 

for failing to follow Cal North rules governing physical contact and offensive language, 

no particular incidents were specified.9 These rules were attached to the email. As West 

Valley points out, the rules on physical contact “broadly concern the potential for an 

appearance of impropriety as well as avoidance of actual impropriety, and the need for 

participants to avoid one-on-one physical contact in order to protect themselves from 

allegations made ‘as a tool of revenge.’” There were repeated incidents in which 

Fabrizio violated this rule with plaintiff. However, given Fabrizio’s relationship with 

plaintiff’s parents and their consent in allowing Fabrizio to spend time alone with 

plaintiff, his violation of this rule is simply not enough to establish that the West Valley

knew or should have known that Fabrizio was probably sexually abusing plaintiff and 

that West Valley consciously, or even negligently, failed to take action to prevent harm to 

her. 

Plaintiff contends that any defects in the complaint can be cured by amendment. 

“‘Leave to amend is properly denied if the facts and nature of plaintiff’s claim are clear 

and under the substantive law, no liability exists [citation] or where it is probable from 

the nature of the defects and previous unsuccessful attempts to plead that the plaintiffs 

cannot state a cause of action [citation].’ [Citation.]” (Titus v. Canyon Lake Property 

Owners Assn. (2004) 118 Cal.App.4th 906, 917.) 

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, 

 

9 Hughes’s e-mail also stated: “Currently, [the Board] is only taking action within 

the league, and has not informed anyone else of the infractions. However, we will keep a 

record of all communications gathered, should [the Board] feel it is necessary to escalate 

the situation.” It is not clear whether plaintiff has included all of the information 

acquired during the Board’s investigation.
30

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 that West Valley 

knew or should have known that Fabrizio had either sexually abused or would probably 

sexually abuse plaintiff. Thus, even if plaintiff were granted leave to amend, she has 

failed to state a cause of action for willful misconduct against West Valley.

IV. Disposition

The judgment is reversed. On remand, the trial court is directed to vacate its 
31

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.

_________________________________

Mihara, J.

WE CONCUR:

______________________________

Elia, Acting P. J. 

______________________________

Grover, J.
32

Trial Court: Santa Clara County Superior Court

Trial Judge: Honorable Kevin E. McKenney

Attorney for Plaintiff and Appellant: Kelly Raftery

Andrew Joseph Piunti

DPA law Group

Attorneys for Defendant and Respondent

United States Youth Soccer Association, Inc.: Margaret Manton Holm

M. Christopher Hall

Sedgwick LLP

Rachel Elizabeth Hobbs

Neil Howard Selman

Selman Breitman LLP

Attorneys for Defendants and Respondents

California Youth Soccer Association, Inc. 

and West Valley Youth Soccer League: Oscar Amor Pardo

David Fernando Beach

Deborah Sandine Bull

Perry, Johnson, Anderson, Miller &

Moskowitz LLP

Doe v. United States Youth Soccer Association, Inc. et al.

H040688