Filed 10/8/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

YAZMIN BROWN et al.,

Plaintiffs and Appellants,

v.

USA TAEKWONDO et al.,

Defendants and 

Respondents.

 B280550

 (Los Angeles County

 Super. Ct. No. BC599321)

APPEAL from the judgments of the Superior Court of Los 

Angeles County, Michael P. Vicencia, Judge. Affirmed in part; 

reversed in part and remanded.

Estey & Bomberger, Stephen J. Estey; Corsiglia McMahon 

& Allard, B. Robert Allard; Williams Iagmin and Jon R. Williams 

for Plaintiffs and Appellants.

Kjar, McKenna, Stockalper, Patrick E. Stockalper and 

Mina M. Morkos for Defendant and Respondent USA Taekwondo.

Clyde & Co., Douglas J. Collodel, Margaret M. Holm and 

M. Christopher Hall for Defendant and Respondent United 

States Olympic Committee.
2

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 

 

1 By “youth athletes” we mean athletes who are minors.

2 Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).
3

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 
4

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

 

3 The factual background includes the facts as alleged in the 

first amended complaint. Plaintiffs allege LAITF is the USAT 

state association for Nevada, and CUTA is the USAT state 

association for California. Only USOC and USAT are parties to 

this appeal.

4 Plaintiffs allege the defendant organizations, including 

USOC, USAT, NVT, LAITF, and CUTA, acted as the agents and 

employees of each other, were engaged in a joint venture, all 

promoted and benefitted from Olympic sports, and had 

knowledge of sexual abuse in Olympic sports. For simplicity, we 

focus on the allegations against USOC and USAT.
5

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 
6

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 
7

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 

 

5 Plaintiffs allege on information and belief USOC owned the 

Olympic training center dormitory. At some unspecified time 

prior to 2005, a female USAT youth athlete was raped at the 

training center. In response, USOC placed a guard outside the 

girls’ dormitory, but sometime between 2005 and 2009 USOC 

stopped placing guards at the dormitory.
8

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 November 11 

Gitelman invited Brown to his dormitory room ostensibly to 

check on an injury she had sustained during the competition. 

Gitelman then sexually abused Brown in his dormitory room. 

Plaintiffs allege “from 2010 through the time [Brown] ceased 

contact with defendant [Gitelman] in 2013,” Gitelman continued 

to sexually molest Brown at events sanctioned by USOC and 

USAT.6

Plaintiffs allege Gitelman did not hide his relationships 

with them. He “openly carried on relationships with each 

[p]laintiff and his relationship with each plaintiff was common 

knowledge throughout the sport of taekwondo.” Plaintiffs allege 

USOC and USAT knew or should have known Gitelman was 

 

6 Plaintiffs allege on information and belief Gitelman 

continued to abuse plaintiffs through the time of his arrest in 

August 2014. However, plaintiffs allege Gitelman’s sexual abuse 

of Bordon and Gatt ended in 2010, and his sexual abuse of Brown 

ended sometime in 2013. “[S]pecific allegations in a complaint 

control over an inconsistent general allegation.” (Perez v. Golden 

Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236; accord, 

Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 

1352; but see Daniels v. Select Portfolio Servicing, Inc. (2016) 

246 Cal.App.4th 1150, 1171 [declining to apply principle that 

specific allegations control because general agency allegations 

had sufficient detail and were consistent with specific 

allegations].)
9

violating the code of ethics based on the behavior of Gitelman and 

plaintiffs displayed in public and at competitions. 

USOC and USAT did not have any policies, procedures, or 

oversight to enforce the code of ethics or prevent sexual assaults 

of athletes. Specifically, they “did not have any policies in place 

prohibiting coaches from traveling alone to competitions with 

minor athletes and did not have policies prohibiting coaches from 

staying in hotel rooms with minor athletes.” They also did not 

have guards or chaperones at hotels, dormitories, or competitions 

to enforce the code of ethics or to prevent improper contact 

between coaches and athletes.

4. USOC’s and USAT’s knowledge in 2013 of Gitelman’s 

sexual abuse of plaintiffs

Plaintiffs allege by September 2013 Malia Arrington, the 

USOC director of ethics and safe sport, had actual knowledge of 

plaintiffs’ allegations against Gitelman. In October 2013 USAT 

chief executive officer Bruce Harris and USAT ethics committee 

chair Don Parker voted to suspend Gitelman pending a hearing 

by the USAT ethics committee. USAT’s board of directors 

approved the temporary suspension of Gitelman pending the 

hearing. At the USAT ethics committee hearing, then 18-yearold Brown represented herself, while Gitelman was represented 

by an attorney. Following the ethics committee hearing, the 

hearing panel recommended termination of Gitelman’s USAT 

membership. But USAT board president Devin Johnson 

allegedly refused to present the ethics committee finding to the 

full board of directors. USAT allowed Gitelman to continue 

coaching at competitions, including the USA Open Taekwondo 

Competition in 2014. Arrington and USOC had actual knowledge 
10

Gitelman was still coaching in 2014 notwithstanding the USAT 

hearing panel’s recommendation to terminate his USAT 

membership. USAT did not place Gitelman on its list of banned 

coaches until September 2015. At some point Gitelman was 

convicted of multiple felonies for the sexual abuse of Bordon, 

Brown, and Gatt.

5. Plaintiffs’ causes of action

The first three causes of action for assault and battery are 

alleged against Gitelman and unnamed individuals for 

Gitelman’s criminal conduct against Bordon, Brown, and Gatt. 

The remaining five causes of action allege negligence, negligent 

hiring and retention, and negligent and intentional infliction of 

emotional distress against USOC, USAT, and the other 

defendants.

Plaintiffs’ fourth cause of action for negligence alleges 

USOC and USAT are responsible for Gitelman’s negligent 

conduct because, on information and belief, Gitelman “was acting 

as the agent and/or employee of, and otherwise under the control 

of or regulated by” USOC and USAT and “was acting in the 

course and within the scope of his authority as agent and/or 

employee, actual or ostensible . . . .” In addition, on information 

and belief, Gitelman “was acting as an officer, director and/or 

managing agent for or otherwise regulated and/or controlled by” 

USOC and USAT.

Plaintiffs’ fifth cause of action for negligence alleges USOC 

and USAT were directly liable because they breached their “duty 

of reasonable care to enforce or enact a [c]ode of [e]thics for the 

sport of taekwondo and to enact policies and procedures both to 
11

enforce the [c]ode and to protect female athletes from sexual 

assault and molestation by coaches and persons in authority.”

Plaintiffs’ sixth cause of action for negligent hiring and 

retention alleges USOC and USAT breached the duty of care they 

owed to plaintiffs by “failing to conduct a thorough background 

check on defendant [Gitelman] when they hired him, failing to 

act upon information that defendant [Gitelman] had a history of 

and propensity for inappropriate acts/sexual abuse of athletes 

and allowing him to have unfettered access to vulnerable 

athletes, including plaintiffs.”

Plaintiffs’ seventh cause of action for the intentional 

infliction of emotional distress alleges the conduct of USOC and 

USAT “was intentional and malicious, and done for the purpose 

of causing plaintiffs to suffer humiliation, mental anguish and 

emotional and physical distress.” As a proximate result of 

defendants’ acts, “plaintiffs suffered humiliation, mental anguish, 

and emotional and physical distress, and have been injured in 

their mind and body . . . .”

Finally, plaintiffs’ eighth cause of action for negligent 

infliction of emotional distress against all defendants alleges, “In 

committing the acts as herein alleged, defendants . . . knew, or in 

the exercise of reasonable care should have known, that their 

failure to exercise due care would cause plaintiffs severe 

emotional distress.”

Plaintiffs allege that as a direct and proximate result of the 

negligence of USOC and USAT, plaintiffs sustained special and 

noneconomic damages, including pain, suffering, and emotional 

distress. Plaintiffs also allege, “Each of these defendants have 

known or should have known for literally years not only about 

defendant [Gitelman’s] prior sexual misconduct, but also the
12

pervasive problem with other taekwondo coaches or high level 

executives dating or molesting underage female athletes and yet 

have done little if anything about it. Thus, each said defendant is 

guilty of malice and oppression, and in addition to compensatory 

damages, punitive damages should be awarded for the sake of 

example and by way of punishing each said defendant.” 

Plaintiffs also seek punitive damages with respect to their claims 

for the intentional and negligent infliction of emotional distress 

for USOC’s and USAT’s “willful, wanton, malicious and 

oppressive” conduct and acts in “conscious disregard of 

[plaintiffs’] rights and safety.”

B. USOC’s and USAT’s Demurrers and Motions To Strike 

Portions of the First Amended Complaint

USOC and USAT each filed a demurrer to the first 

amended complaint, arguing the causes of action were uncertain 

and did not allege facts sufficient to state a claim. As to vicarious 

liability, USOC and USAT argued plaintiffs did not allege any 

facts to establish Gitelman was an employee or agent, or he 

committed the sexual assaults within the course and scope of his 

employment or agency. USOC and USAT also argued they could 

not be held vicariously liable because they did not have actual 

knowledge of Gitelman’s sexual misconduct.

USOC and USAT asserted plaintiffs had not alleged a 

claim for negligence based on a theory of direct liability because 

the organizations owed no duty of care to plaintiffs to prevent 

Gitelman’s sexual abuse. They contended plaintiffs failed to 

allege a special relationship and actual knowledge of Gitelman’s 

prior sexual misconduct. USOC also argued plaintiffs failed to 
13

plead facts sufficient to establish it owed a duty of care under the 

Rowland factors.

USOC and USAT asserted plaintiffs’ claim for negligent 

infliction of emotional distress was duplicative of the negligence 

causes of action. Finally, USOC and USAT argued plaintiffs 

failed to allege facts sufficient to support a claim for the 

intentional infliction of emotional distress because the alleged

conduct was not extreme, outrageous, or reckless.

USOC and USAT separately filed motions to strike 

plaintiffs’ allegations seeking punitive damages and attorneys’

fees.

C. The Trial Court’s Ruling and Entry of Judgment

On November 29, 2016 the trial court held a hearing on the 

demurrers and motions to strike filed by USOC and USAT. The 

court sustained the demurrers without leave to amend, finding 

“Gitelman was not an employee or agent of either of the 

defendants and the facts alleged do not make him one.”7 In 

addition, the court ruled the motions to strike were moot because 

it had sustained the demurrers. On January 3, 2017 the trial 

court entered judgments of dismissal in favor of USOC and 

USAT. Plaintiffs timely appealed.

 

7 On our own motion we augment the record to include the 

trial court’s November 19, 2016 minute order. (Cal. Rules of 

Court, rule 8.155(a)(1)(A).) There is no record of the court’s 

ruling other than the minute order and judgment of dismissal.
14

DISCUSSION

A. Standard of Review

“In reviewing an order sustaining a demurrer, we examine 

the operative complaint de novo to determine whether it alleges 

facts sufficient to state a cause of action under any legal theory. 

[Citation.] Where the demurrer was sustained without leave to 

amend, we consider whether the plaintiff could cure the defect by 

an amendment.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 

4 Cal.5th 145, 162; accord, Centinela Freeman Emergency 

Medical Associates v. Health Net of California, Inc. (2016) 

1 Cal.5th 994, 1010.) When evaluating the complaint, “we 

assume the truth of the allegations.” (Lee v. Hanley (2015) 

61 Cal.4th 1225, 1230; accord, McCall v. PacifiCare of Cal., Inc.

(2001) 25 Cal.4th 412, 415.)

“A judgment of dismissal after a demurrer has been 

sustained without leave to amend will be affirmed if proper on 

any grounds stated in the demurrer, whether or not the court 

acted on that ground.” (Carman v. Alvord (1982) 31 Cal.3d 318, 

324; accord, Summers v. Colette (2019) 34 Cal.App.5th 361, 367.)

A trial court abuses its discretion by sustaining a demurrer 

without leave to amend where “‘there is a reasonable possibility 

that the defect can be cured by amendment.’” (Loeffler v. Target 

Corp. (2014) 58 Cal.4th 1081, 1100; accord, City of Dinuba v. 

County of Tulare (2007) 41 Cal.4th 859, 865.) “‘The plaintiff has 

the burden of proving that [an] amendment would cure the legal 

defect, and may [even] meet this burden [for the first time] on 

appeal.’” (Sierra Palms Homeowners Assn. v. Metro Gold Line 

Foothill Extension Construction Authority (2018) 19 Cal.App.5th 
15

1127, 1132; accord, Aubry v. Tri-City Hospital Dist. (1992) 

2 Cal.4th 962, 971.)

B. Plaintiffs Have Alleged Facts Sufficient To State a Claim 

for Negligence Based on the Duty of Care Owed to Plaintiffs

by USAT, but Not USOC

Plaintiffs’ fifth cause of action for negligence is based on

USOC’s and USAT’s breach of a duty of care owed to plaintiffs. 

As discussed, plaintiffs allege USOC and USAT “had a duty of 

reasonable care to enforce or enact a [c]ode of [e]thics for the 

sport of taekwondo and to enact policies and procedures both to 

enforce the [c]ode and to protect female athletes from sexual 

assault and molestation by coaches and persons in authority.” In 

their demurrers USOC and USAT asserted they did not owe 

plaintiffs a duty of care. We conclude USAT owed plaintiffs a 

duty of care, but USOC did not.

1. Duty of Care

To support a claim for negligence, a plaintiff must allege

facts showing a legal duty to use due care, breach of the duty, 

causation, and damages. (Regents of University of California v. 

Superior Court (2018) 4 Cal.5th 607, 618 (Regents); Vasilenko v. 

Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko).)8 

 

8 Our analysis of plaintiffs’ negligence claims also applies to 

their claim for negligent infliction of emotional distress. “[T]here 

is no independent tort of negligent infliction of emotional 

distress. [Citation.] The tort is negligence, a cause of action in 

which a duty to the plaintiff is an essential element.” (Potter v. 

Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984; accord, 

Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1266, fn. 11;

Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1520 
16

“In general, each person has a duty to act with reasonable care 

under the circumstances.” (Regents, at p. 619; accord, Vasilenko, 

at p. 1083 [“Civil Code section 1714, subdivision (a) ‘establishes 

the general duty of each person to exercise, in his or her 

activities, reasonable care for the safety of others.’”].) “However, 

‘one owes no duty to control the conduct of another, nor to warn 

those endangered by such conduct.’” (Regents, at p. 619; accord, 

Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado) 

[“as a general matter, there is no duty to act to protect others 

from the conduct of third parties”].)

Nevertheless, “a duty to control may arise if the defendant 

has a special relationship with the foreseeably dangerous person 

that entails an ability to control that person’s conduct.” (Regents, 

supra, 4 Cal.5th at p. 619; accord, Barenborg v. Sigma Alpha 

Epsilon Fraternity (2019) 33 Cal.App.5th 70, 77 (Barenborg).) 

“Similarly, a duty to warn or protect may be found if the 

defendant has a special relationship with the potential victim 

that gives the victim the right to expect protection.” (Regents, at 

p. 619; accord, Delgado, supra, 36 Cal.4th at p. 235 [“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.”].) “The existence of a duty is a question of law,

which we review de novo.” (Vasilenko, supra, 3 Cal.5th at p. 1083 

[analyzing duty under Rowland factors]; accord, Regents, at 

p. 620 [“The determination whether a particular relationship 

supports a duty of care rests on policy and is a question of law.”].)

 

[“[R]ecovery of emotional distress damages is premised on 

defendant’s negligence (i.e., breach of duty) that proximately

causes emotional distress.”].)
17

“[P]lantiffs alleging a defendant had a duty to protect them 

must establish: (1) that an exception to the general no-duty-toprotect rule applies and (2) that the Rowland factors support the 

imposition of the duty.” (Barenborg, supra, 33 Cal.App.5th at 

p. 77; see Regents, supra, 4 Cal.5th at p. 628 [applying Rowland 

factors after concluding college had special relationship with 

students engaged in college’s curricular activities]; Delgado, 

supra, 36 Cal.4th at pp. 244-246 [bar proprietor had duty to 

protect patron from assault by third party based on special 

relationship with patron and Rowland factors].)

“‘“The key in each [special relationship] is that the 

defendant’s relationship with . . . the tortfeasor . . . places the 

defendant in the best position to protect against the risk of 

harm.”’ [Citations.] Thus, the defendant’s ability to control the 

person who caused the harm must be such that ‘if exercised, [it] 

would meaningfully reduce the risk of the harm that actually 

occurred.’” (Barenborg, supra, 33 Cal.App.5th at p. 78.)

In Regents, the Supreme Court considered the “common 

features” of a special relationship. (Regents, supra, 4 Cal.5th at 

p. 620.) The Regents court observed that “[g]enerally, the 

relationship has an aspect of dependency in which one party 

relies to some degree on the other for protection.” (Ibid.) 

Further, “[t]he corollary of dependence in a special relationship is 

control. Whereas one party is dependent, the other has superior 

control over the means of protection. ‘[A] typical setting for the 

recognition of a special relationship is where “the plaintiff is 

particularly vulnerable and dependent upon the defendant who, 

correspondingly, has some control over the plaintiff’s welfare.”’” 

(Id. at p. 621.) In addition, “[s]pecial relationships also have 

defined boundaries. They create a duty of care owed to a limited 
18

community, not the public at large.” (Ibid.) Finally, the court 

noted that “although relationships often have advantages for 

both participants, many special relationships especially benefit 

the party charged with a duty of care,” pointing to retail stores 

and hotels as examples. (Ibid.)

In its evaluation of whether a college has a special 

relationship with its students, the Regents court observed that 

college students are “dependent on their college communities to 

provide structure, guidance, and a safe learning environment” 

and “have superior control over the environment and the ability 

to protect students.” (Regents, supra, 4 Cal.5th at p. 625.) The 

court reasoned, “Considering the unique features of the college 

environment, we conclude postsecondary schools do have a 

special relationship with students while they are engaged in 

activities that are part of the school’s curriculum or closely 

related to its delivery of educational services.” (Id. at pp. 624-

625.) However, the court limited the college’s duty of care to 

“activities that are tied to the school’s curriculum but not to 

student behavior over which the university has no significant 

control,” explaining the college would be expected to retain a 

“measure of control” over the classroom environment. (Id. at 

p. 627.)

A number of Courts of Appeal have considered whether 

organizations owe a duty of care toward a minor where an adult 

under the control of the organization sexually abused the minor. 

In Doe v. United States Youth Soccer Assn., Inc. (2017) 

8 Cal.App.5th 1118, 1130-1131 (United States Youth Soccer), the 

court concluded the national youth soccer association had a 

special relationship with the 12-year-old plaintiff who was 

sexually abused by her coach. The court reasoned there was a 
19

special relationship because the plaintiff was a member of the 

association, she played on a team that was a local affiliate of the

association, the team was required to comply with the 

association’s policies and rules, and the association established 

the standards under which coaches were hired. (Id. at p. 1131.) 

The court explained, “[P]arents entrusted their children to [the 

association and other] defendants with the expectation that they 

would be kept physically safe and protected from sexual 

predators while they participated in soccer activities.” (Id. at 

p. 1130.)

Similarly, in Juarez v. Boy Scouts of America, Inc. (2000) 

81 Cal.App.4th 377, 404 (Juarez), the Court of Appeal concluded 

the Boy Scouts of America had a duty to protect a 12-year-old 

scout who was sexually molested by his scoutmaster during 

officially sanctioned scouting events, including overnight 

campouts. In its review of the record on summary judgment, the 

court observed the Boy Scouts had identified the protection of 

youth from sexual abuse as a priority of the organization. (Id. at 

p. 398.) The Boy Scouts had developed a “Youth Protection 

Program” to educate adult volunteers, parents, and scouts on how 

to detect and prevent sexual abuse, but it had failed to provide 

information to the plaintiff and his parents in their native 

language on how to protect the plaintiff from sexual abuse. (Id. 

at pp. 398-399.) On these facts the court concluded the Boy 

Scouts had a special relationship with the plaintiff “giving rise to 

a duty to protect him from harm caused by the criminal conduct 

of third parties.” (Id. at p. 411.)9

 

9 As we discuss below, the court in Juarez principally focused

on the Rowland factors in determining the Boy Scouts owed a 

duty of care to the plaintiff scout.
20

Other courts have similarly found a special relationship 

between an organization and the minor or tortfeasor. (See Conti 

v. Watchtower Bible & Tract Society of New York, Inc. (2015) 

235 Cal.App.4th 1214, 1235 (Conti) [church elders’ control over 

church-sponsored field service placed the church and its elders in 

a special relationship with plaintiff and the church member who 

sexually molested plaintiff]; Doe 1 v. City of Murrieta (2002) 

102 Cal.App.4th 899, 918 (City of Murrieta) [police department 

that sponsored “explorer program” was in special relationship 

with the teenage explorers and owed them “a duty of care to 

protect them from foreseeable harm,” including from sexual 

relationship with police officer who served as adviser during ridealongs at night]; cf. Barenborg, supra, 33 Cal.App.5th at pp. 75, 

81 [national fraternity did not have special relationship with its 

local chapter and therefore had no duty to protect student who 

was injured at party held by local chapter, despite national 

fraternity’s adoption of policies governing local chapter and 

ability to discipline chapter for policy violations because it had no 

ability to prevent injury].)

2. Plaintiffs allege facts showing USAT had a special 

relationship with Gitelman

Plaintiffs allege facts sufficient to show USAT had a special 

relationship with Gitelman. To compete at the Olympic games, 

taekwondo athletes must be members of USAT and train under 

USAT-registered coaches. USAT registered Gitelman as a coach, 

and he remained registered until USAT banned him from 

coaching. USAT had control over Gitelman’s conduct through its 

policies and procedures. As the national governing body of 

taekwondo, “USAT is responsible for the conduct and 
21

administration of taekwondo in the United States.” Further, 

USAT formulates the rules, implements the policies and 

procedures, and enforces the code of ethics for taekwondo in the 

United States.

In the late summer of 2013 USAT adopted codes of conduct 

and ethics that complied with the requirements of the safe sport 

program mandated by USOC. USAT’s code of conduct prohibits 

sexual relationships between coaches and athletes. USAT’s code 

of ethics prohibits, among other things, provision of alcohol to 

youth athletes, inappropriate touching between a coach and an 

athlete, and nonconsensual physical contact. USAT can, and did, 

enforce its policies and procedures by temporarily suspending 

Gitelman pending the ethics committee hearing, conducting a 

hearing in October 2013 on Brown’s sexual abuse allegations 

against Gitelman, and terminating Gitelman’s USAT 

membership in September 2015.

USAT was therefore “‘“in the best position to protect 

against the risk of harm”’” and “‘meaningfully reduce the risk of 

the harm that actually occurred.’” (Barenborg, supra, 

33 Cal.App.5th at p. 78; accord, Regents, supra, 4 Cal.5th at 

p. 621.) Thus, USAT had “a special relationship with the 

foreseeably dangerous person that entails an ability to control 

that person’s conduct.” (Regents, at p. 619; see United States 

Youth Soccer, supra, 8 Cal.App.5th at pp. 1130-1131; Conti, 

supra, 235 Cal.App.4th at p. 1235.)

The facts alleged here contrast with those at issue in 

Barenborg, supra, 33 Cal.App.5th at pages 77 to 80. There, the 

Court of Appeal concluded “the existence of general policies 

governing the operation of local chapters [of a fraternity] and the 

authority to discipline them for violations does not justify 
22

imposition of a duty on national fraternities.” (Id. at p. 79.) As 

the court explained, regardless of the national fraternity’s 

policies and ability to discipline the local chapter, it could not 

have prevented the local chapter from constructing the dangerous 

platform from which the plaintiff fell during the party. (Id. at 

p. 81.) The court concluded, “Ultimately, regardless of its policies 

and disciplinary powers, [the national fraternity] was unable to 

monitor and control [the local chapter’s] day-to-day operations, 

and it thus owed no duty to protect [plaintiff] from [the local 

chapter’s] conduct.” (Ibid.)

Unlike the national fraternity in Barenborg, which could 

only control its local chapter by disciplining it after learning of a 

violation of the fraternity’s policies, USAT was in a unique 

position to protect youth athletes against the risk of sexual abuse 

by their coaches. USAT could, and eventually did, establish 

codes of conduct and ethics that prohibited sexual relationships 

between coaches and athletes, inappropriate touching, and 

nonconsensual physical contact. In addition, as alleged by 

plaintiffs, USAT could have taken additional steps to protect 

youth athletes by prohibiting coaches from traveling alone to 

competitions with youth athletes, barring coaches from staying in 

hotel rooms at competitions with youth athletes, and providing 

guards or chaperones at hotels and dormitories at competitions to 

prevent improper conduct by coaches.

3. The Rowland factors support a finding USAT had a 

duty to protect plaintiffs from sexual abuse

Even if an organization has a special relationship with the 

tortfeasor or plaintiff, “[t]he court may depart from the general 

rule of duty . . . if other policy considerations clearly require an 
23

exception.” (Regents, supra, 4 Cal.5th at p. 628.) We therefore 

consider the Rowland factors “that may, on balance, justify 

excusing or limiting a defendant’s duty of care.” (Regents, at 

p. 628; accord, United States Youth Soccer, supra, 8 Cal.App.5th 

at p. 1128 [“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.”]; Doe v. Superior Court

(2015) 237 Cal.App.4th 239, 245 [observing as to summer camp 

and its counselors, campers, and campers’ parents that “[e]ven if 

a special relationship exists, a defendant’s duty of care does not 

necessarily include the obligation to act proactively” as to 

possible future harm from third party].)

In determining whether policy considerations justify 

excusing or limiting a defendant’s duty of care, we look to “‘the 

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.’” (Regents, supra, 4 Cal.5th at p. 628, quoting Rowland, 

supra, 69 Cal.2d at p. 113; accord, Vasilenko, supra, 3 Cal.5th at 

p. 1083 [church did not owe duty of care to protect plaintiff from 

being struck by car as he crossed public street from church’s 

parking lot to the church].)
24

“The Rowland factors fall into two categories. The first 

group involves foreseeability and the related concepts of certainty 

and the connection between plaintiff and defendant. The second 

embraces the public policy concerns of moral blame, preventing 

future harm, burden, and insurance availability.” (Regents, 

supra, 4 Cal.5th at p. 629; accord, Vasilenko, supra, 3 Cal.5th at 

p. 1083.) “These factors must be ‘evaluated at a relatively broad 

level of factual generality.’ [Citation.] In considering them, we 

determine ‘not whether they support an exception to the general 

duty of reasonable care on the facts of the particular case before 

us, but whether carving out an entire category of cases from that 

general duty rule is justified by clear considerations of policy.’” 

(Regents, at pp. 628-629; accord, Vasilenko, at p. 1083.)

a. Foreseeability factors

In determining whether to create an exception to the 

general duty to exercise ordinary care, the most important factor 

is whether the injury at issue was foreseeable. (Regents, supra, 

4 Cal.5th at p. 629.) “In examining foreseeability, ‘the court’s 

task . . . “is not to decide whether a particular plaintiff’s injury 

was reasonably foreseeable in light of a particular defendant’s 

conduct, but rather to evaluate more generally whether the 

category of negligent conduct at issue is sufficiently likely to 

result in the kind of harm experienced that liability may 

appropriately be imposed . . . .”’” (Ibid., quoting Cabral v. Ralphs 

Grocery Co. (2011) 51 Cal.4th 764, 772.) The Regents court 

explained the appropriate question in that case was not whether 

it was foreseeable a particular student would stab another 

student in the classroom, but rather, “whether a reasonable 

university could foresee that its negligent failure to control a 
25

potentially violent student, or to warn students who were 

foreseeable targets of his ire, could result in harm to one of those 

students.” (Regents, at p. 629.) The Supreme Court considered 

instances in which individuals at other universities committed 

unprovoked violent attacks and observed, “[P]articularly after the 

Virginia [Polytechnic Institute and State University] shootings 

focused national attention on the issue, colleges have been alert

to the possibility that students, particularly those with mental 

health issues, may lash out violently against those around them.” 

(Id. at p. 630.) The court concluded, “[C]ase-specific 

foreseeability questions are relevant in determining the 

applicable standard of care or breach in a particular case. They 

do not, however, inform our threshold determination that a duty 

exists.” (Ibid.)10

 

10 USAT relies on cases predating Regents, in which the 

courts concluded an entity or individual having a special 

relationship with a minor did not owe the minor a duty of care 

because the conduct of the third party who harmed the minor was 

not foreseeable. (See, e.g., J.L. v. Children’s Institute, Inc. (2009) 

177 Cal.App.4th 388, 391, 393, 396 [daycare agency had special 

relationship with child but “owed no duty to protect [child] 

against an unforeseeable criminal assault” by 14-year-old 

grandson of home daycare operator]; Margaret W. v. Kelley R.

(2006) 139 Cal.App.4th 141, 152 [mother hosting sleepover had 

special relationship with daughter’s friend but no duty to prevent 

rape that was not foreseeable where daughter and friend left 

home without parents’ permission]; Romero v. Superior Court

(2001) 89 Cal.App.4th 1068, 1080-1081, 1089 [parents had special 

relationship with 13-year-old girl whom they invited to visit with 

their teenage son, but they did not owe duty of care to prevent 

other teenage boy from assaulting girl where the parents were 

unaware of the boy’s propensity to sexually assault a female 

minor]; Chaney v. Superior Court (1995) 39 Cal.App.4th 152, 157 
26

Here, plaintiffs allege in 1992 the USAT national team 

coach was caught having sex with a young female Olympian, and 

sexual abuse of youth athletes by credentialed coaches “was so 

rampant that by 1999 defendant USOC required all [national 

governing bodies] to have specific insurance to cover coach sexual 

abuse.” USAT purchased this insurance in 1999. Further, 

plaintiffs allege that at some time prior to 2005 and again in 2007 

female USAT youth athletes were raped at the Olympic training 

center in Colorado Springs. Plaintiffs allege USAT “regularly 

received complaints from athletes or their parents regarding 

improper sexual conduct by coaches,” and it was “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.” In addition, plaintiffs allege “[b]y 2007 sexual abuse of 

minors by figures of authorities, like priests, coaches, and scout 

leaders was a widely known risk in American society.”

Based on these allegations, it was foreseeable youth 

athletes attending Olympic qualifying competitions with their 

coaches might be sexually molested by their coaches, regardless 

of whether USAT had knowledge of prior sexual misconduct by 

 

[“where a child is sexually assaulted in the defendant wife’s home 

by her husband, the wife’s duty of reasonable care to the injured 

child depends on whether the husband’s behavior was reasonably 

foreseeable”].) Although some of these cases analyze the question 

of duty in the context of foreseeability of the particular tortfeasor 

causing harm, we follow the Supreme Court’s direction to analyze 

foreseeability under Rowland at a general level, considering 

whether it was foreseeable the category of negligent conduct was

likely to result in the type of harm experienced. (Regents, supra, 

4 Cal.5th at p. 629.)
27

Gitelman. (See United States Youth Soccer, supra, 8 Cal.App.5th 

at pp. 1132, 1135 [even though soccer associations were not 

aware of coach’s prior sexual abuse, sexual abuse of minors in 

soccer program by their coach was reasonably foreseeable 

because the associations “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”]; Juarez, supra, 81 Cal.App.4th at p. 404 [“[I]t should 

be reasonably foreseeable to the Scouts that a child participating 

in scouting might fall prey to a sexual predator, with no 

documented history of such proclivities, who is serving as an 

adult volunteer in the child’s scouting troop.”].)

Moreover, plaintiffs allege Gitelman sexually abused 

Bordon on a road trip while they were alone in a car, and he 

abused all three plaintiffs in his hotel and dormitory rooms 

during overnight trips to taekwondo competitions. It is 

reasonably foreseeable some coaches, allowed to be alone with 

youth athletes, would sexually abuse the athletes during road 

trips and overnight stays. (See City of Murrieta, supra, 

102 Cal.App.4th at p. 915 [plaintiffs’ frequent participation in 

one-on-one ride-alongs with police adviser late at night “created a 

risk or foreseeability that [adviser] would become sexually 

involved with plaintiffs”]; Juarez, supra, 81 Cal.App.4th at p. 404 

[“[C]hildren engaged in organized group overnight activities are 

at risk of foreseeable sexual abuse.”].)

The second factor, the degree of certainty that plaintiffs 

suffered harm, is not at issue. It is undisputed plaintiffs suffered 

harm from Gitelman’s sexual abuse of them. “The significant 

emotional trauma caused by childhood sexual abuse, with its 

related societal costs, is well documented . . . .” (Juarez, supra, 
28

81 Cal.App.4th at p. 405; accord, City of Murrieta, supra, 

102 Cal.App.4th at p. 916 [rejecting argument plaintiffs did not 

suffer injury because they consented to sexual acts].)

“The third factor is ‘the closeness of the connection between 

the defendant’s conduct and the injury suffered.’ [Citation.] 

‘Generally speaking, where the injury suffered is connected only 

distantly and indirectly to the defendant’s negligent act, the risk 

of that type of injury from the category of negligent conduct at 

issue is likely to be deemed unforeseeable. Conversely, a closely 

connected type of injury is likely to be deemed foreseeable.’” 

(Regents, supra, 4 Cal.5th at pp. 630-631; accord, Cabral, supra,

51 Cal.4th at p. 779.)

Plaintiffs allege USAT was negligent in failing to adopt and 

enforce policies and procedures to protect athletes from sexual 

abuse by coaches. Specifically, they allege although USAT was 

aware as early as 1992 that coaches were sexually abusing 

taekwondo athletes, it did not adopt policies to prevent sexual 

abuse until the late summer of 2013—after Gitelman sexually 

abused plaintiffs. USAT’s failure to take any steps prior to 2013 

to prevent taekwondo coaches from sexually abusing female 

athletes is closely connected to the injury plaintiffs suffered 

because action by USAT could have reduced the risk of plaintiffs 

being abused by limiting inappropriate contact between coaches 

and youth athletes. (See Regents, supra, 4 Cal.5th at p. 631 

[“When circumstances put a school on notice that a student is at 

risk to commit violence against other students, the school’s 

failure to take appropriate steps to warn or protect foreseeable 

victims can be causally connected to injuries the victims suffer as 

a result of that violence.”]; United States Youth Soccer, supra, 

8 Cal.App.5th at pp. 1136-1137 [“If defendants had conducted a 
29

criminal background check of [the coach], his prior conviction for 

domestic violence would have been discovered and it would have 

been highly unlikely that he would have been hired. Thus, he 

would have had far fewer, if any, opportunities to sexually abuse 

plaintiff.”]; Conti, supra, 235 Cal.App.4th at p. 1235 [allowing 

child molester to be alone with plaintiff during field service 

heightened risk of sexual abuse]; City of Murrieta, supra, 

102 Cal.App.4th at p. 916 [“Had the [police department]

restricted plaintiffs’ contact with [their adviser] while on the 

job, . . . it would have been much less likely that plaintiffs and 

[their adviser] would have become sexually involved.”]; Juarez, 

supra, 81 Cal.App.4th at p. 406 [Boy Scouts’ failure to educate 

scouts, their parents, and adult volunteers to protect scouts from 

sexual abuse created “a sufficient causal link between the acts or 

omissions of the [Boy] Scouts and the harm [plaintiff] suffered.”].)

b. Policy factors

The existence of a duty also depends on “‘“‘a weighing of 

policy considerations for and against imposition of liability.’”’” 

(Vasilenko, supra, 3 Cal.5th at p. 1086; accord, Regents, supra, 

4 Cal.5th at p. 631 [“Although Rowland’s foreseeability factors 

weigh in favor of recognizing a duty of care, we must also 

consider whether public policy requires a different result.”].) “‘A 

duty of care will not be held to exist even as to foreseeable 

injuries . . . where the social utility of the activity concerned is so 

great, and avoidance of the injuries so burdensome to society, as 

to outweigh the compensatory and cost-internalization values of 

negligence liability.’” (Regents, at p. 631; accord, Vasilenko, at 

pp. 1086-1087.)
30

“[I]f there were reasonable ameliorative steps the 

defendant could have taken, there can be moral blame ‘attached 

to the defendants’ failure to take steps to avert the foreseeable 

harm.’” (Vasilenko, supra, 3 Cal.5th at p. 1091; see Regents, 

supra, 4 Cal.5th at p. 631 [“[s]ome measure of moral blame does 

attach to a university’s negligent failure to prevent violence 

against its students” because college had superior knowledge 

about potential threats and ability to control the environment]; 

City of Murrieta, supra, 102 Cal.App.4th at p. 916 [police 

department, as sponsor of explorer program, “had a moral 

obligation to protect its explorers, including implementing 

reasonable rules and restrictions . . . and intervening when there 

was an apparent risk of sexual exploitation by an explorer 

adviser”]; cf. United States Youth Soccer, supra, 8 Cal.App.5th at 

p. 1137 [no moral blame attributable to defendants where there 

was no evidence they knew the coach would harm plaintiff, and 

defendants required applicants to disclose and verify record of 

prior criminal convictions]; Juarez, supra, 81 Cal.App.4th at 

pp. 406-407 [Boy Scouts’ failure to ensure scouts, parents, and 

volunteers were aware of potential for sexual abuse was not 

blameworthy where the Boy Scouts were in the vanguard in 

fighting child sexual abuse by their development of an 

educational program].) Here, as in Regents, we attribute “[s]ome 

measure of moral blame” to USAT because it failed to take action 

to prevent sexual abuse by coaches until the late summer of 2013, 

when it first adopted a safe sport program. (Regents, at p. 631.)

We also consider the policy of preventing future harm, 

which “‘is ordinarily served, in tort law, by imposing the costs of 

negligent conduct upon those responsible. The policy question is 

whether that consideration is outweighed, for a category of 
31

negligent conduct, by laws or mores indicating approval of the 

conduct or by the undesirable consequences of allowing potential 

liability.’” (Regents, supra, 4 Cal.5th at p. 632 [finding of duty 

served policy of preventing future harm because imposing a duty 

would create incentives that “[o]n the whole . . . avert violent 

episodes”]; cf. Vasilenko, supra, 3 Cal.5th at p. 1087 [factor 

weighed against finding duty because landowner has limited 

ability to reduce risk of injury from the public crossing public 

street to parking lot, and imposing duty could cause landowner to 

stop providing parking].)

Here, the societal goal of safeguarding youth athletes from 

sexual abuse weighs in favor of imposing a duty on USAT to 

implement and enforce policies and procedures to protect the 

athletes. USAT is in the best position to take steps to protect 

youth athletes who attend Olympic taekwondo competitions alone 

with their coaches. As the Juarez court observed, society’s 

“common goal of safeguarding our children . . . is gravely 

threatened by sexual predators who prey on young children. . . . 

[¶] . . . The interests of the state in protecting the health, 

emotional welfare and well-rounded growth of its young citizens, 

together with its undeniable interest in safeguarding the future 

of society as a whole, weigh strongly in favor of imposing a 

duty . . . .” (Juarez, supra, 81 Cal.App.4th at p. 407; accord, 

United States Youth Soccer, supra, 8 Cal.App.5th at p. 1137 

[“[O]ur society recognizes that the protection of children from 

sexual abuse is a paramount goal.”]; City of Murrieta, supra, 

102 Cal.App.4th at p. 916 [“preventing future harm to minors is 

certainly appropriate and could be accomplished by implementing 

the protective measures stated in the . . . explorer handbook, as 
32

well as adhering to [the defendant’s] own ride-along 

restrictions”].)

We also consider “the burden that recognizing a tort duty 

would impose on the defendant and the community.” (Regents, 

supra, 4 Cal.5th at p. 633; accord, Vasilenko, supra, 3 Cal.5th at 

p. 1090.) Incentivizing USAT to adopt policies that adequately 

protect youth athletes and to ensure the policies are followed 

would not impose a substantial burden on USAT. USAT has now 

enacted codes of conduct and ethics that prohibit sexual 

relationships and inappropriate touching between coaches and 

athletes. Further, USAT has a disciplinary procedure for barring 

coaches from coaching taekwondo if they violate USAT’s policies 

and procedures. Although USAT delayed taking action against

Gitelman, it banned him from coaching Olympic taekwondo in 

September 2015. (See United States Youth Soccer, supra, 

8 Cal.App.5th at pp. 1135-1136 [imposing a duty to implement 

criminal background checks for coaches was not burdensome for 

national and local soccer associations]; Conti, supra, 

235 Cal.App.4th at p. 1235 [“Defendants will not be heavily 

burdened by a duty to take reasonable care to ensure that 

molesters are accompanied by another adult, and no children, in 

the field.”]; City of Murrieta, supra, 102 Cal.App.4th at p. 916 

[implementation of protective measures stated in the explorer 

handbook and enforcement of defendant’s own ride-along 

restrictions were not “unduly burdensome or costly”]; Juarez, 

supra, 81 Cal.App.4th at pp. 407-409 [burden on Boy Scouts was 

not onerous where delivery system was “already in place to see 

that vital information needed to combat child sexual abuse is 

communicated at every level of scouting”].)
33

The final Rowland factor is the availability and cost of 

insurance for the risk involved. (Regents, supra, 4 Cal.5th at 

p. 633; Vasilenko, supra, 3 Cal.5th at p. 1091.) This factor weighs 

in favor of finding a duty in light of the allegation USAT in 1999 

obtained insurance to cover sexual abuse by coaches.

In sum, on the facts as alleged, the Rowland factors 

support recognition of USAT’s duty to use reasonable care to 

protect taekwondo youth athletes from foreseeable sexual abuse 

by their coaches.

4. Plaintiffs have not alleged facts showing USOC had a 

special relationship with Gitelman or plaintiffs

Plaintiffs contend USOC had a special relationship with

Gitelman or plaintiffs because USOC had authority to certify or 

decertify national governing bodies, including USAT; USOC 

mandated national governing bodies adopt a safe sport program 

by 2013; and Gitelman’s sexual abuse of plaintiffs occurred at 

taekwondo competitions sanctioned by USOC. These allegations 

show USOC had the ability to regulate USAT’s conduct, but they 

do not establish that USOC had the ability to control Gitelman’s 

conduct, or USOC was in the best position to protect plaintiffs 

from Gitelman’s sexual abuse. (Regents, supra, 4 Cal.5th at 

p. 621; see Barenborg, supra, 33 Cal.App.5th at p. 80 [“Absent an 

ability to monitor the day-to-day operations of local chapters, the 

authority to discipline generally will not afford a national 

fraternity sufficient ability to prevent the harm and thus will not 

place it in a unique position to protect against the risk of harm.”]; 

University of Southern California v. Superior Court (2018) 

30 Cal.App.5th 429, 449 [college did not have special relationship 

with students or guests attending off-campus party at fraternity 
34

because “college has little control over such noncurricular, offcampus activities, and it would be unrealistic for students and 

their guests to rely on the college for protection in those 

settings”].) USOC’s indirect control over Gitelman through its 

regulation of USAT is too remote to create a special relationship.

Plaintiffs liken USOC to the national youth soccer 

association that the Court of Appeal in United States Youth 

Soccer, supra, 8 Cal.App.5th at page 1131 concluded had a special 

relationship with a youth athlete playing for a local affiliated 

soccer league. As here, the national association established 

policies to protect youth athletes from sexual abuse by coaches. 

(Id. at pp. 1123-1124.) But the national association also set 

requirements for the hiring of coaches by its state associations 

and regional affiliates, required state associations and their 

affiliates to collect and screen criminal conviction information on 

their coaches, had authority to deny certification to coaches with 

criminal convictions, and distributed monthly reports showing 

which coaches had been disqualified from coaching because of 

their convictions. (Id. at p. 1126.) Further, unlike here, the 

plaintiff was a member of the national association and played on 

a team that was a local affiliate of the national association. (Id. 

at p. 1131.)

Conti, City of Murrieta, and Juarez are similarly

distinguishable. In Conti, supra, 235 Cal.App.4th at page 1235,

the church elders controlled the field service program during 

which a church member sexually molested the plaintiff. In City 

of Murrieta, supra, 102 Cal.App.4th at page 918, the police 

department sponsored the explorer program and controlled the 

adviser who sexually abused the teenage explorers. In Juarez, 

supra, 81 Cal.App.4th at pages 398 to 400, the Boy Scouts 
35

developed educational materials on sexual abuse and set 

guidelines for scouting troops to follow, but it failed to provide the 

educational materials to the minor plaintiff and his parents in 

their native language.

Here, USAT is one of 49 national governing bodies in the 

United States. Plaintiffs have not alleged any relationship 

between USOC and Gitelman other than USOC’s ability to 

control the policies adopted by USAT, which in turn would 

impact the conduct of coaches registered with USAT. Unlike 

United States Youth Soccer, plaintiffs have not alleged USOC had 

any authority to control Gitelman’s conduct directly or to prevent 

him from coaching taekwondo in competitions. Similarly, the 

first amended complaint does not allege any relationship between 

USOC and plaintiffs, other than an allegation plaintiffs were 

abused at taekwondo events “sanctioned” by USOC. This alone 

does not establish a special relationship between USOC and 

plaintiffs, or that USOC was in a position to control Gitelman’s 

conduct. The fact USOC was aware generally of coaches sexually 

abusing athletes in Olympic sports, including taekwondo, leading 

USOC to require national governing bodies to adopt safe sport 

policies, does not mean USOC had the ability to control 

Gitelman’s conduct or was in the best position to do so. Further, 

plaintiffs have not provided additional facts they could allege to 

show a special relationship between USOC and Gitelman or 

plaintiffs.11

 

11 On September 12, 2018 plaintiffs requested judicial notice 

of two May 21, 2018 congressional staff memoranda and a 

videotape of a May 23, 2018 congressional hearing concerning the 

sexual abuse of athletes in Olympic sports, including taekwondo. 

We denied plaintiffs’ request without prejudice because it failed 
36

Because USOC does not have a special relationship with 

Gitelman or plaintiffs, it does not have a duty to protect 

plaintiffs. Therefore, we do not consider the Rowland factors as 

to USOC. (Barenborg, supra, 33 Cal.App.5th at p. 77 

[“Because . . . we conclude no exception applies here, we need not 

consider the application of the Rowland factors to the facts of this 

case.”]; University of Southern California v. Superior Court, 

supra, 30 Cal.App.5th at p. 451 [“An analysis of the Rowland 

factors may be unnecessary if the court determines as a matter of 

law based on other policy considerations that no duty exists in a 

category of cases.”].)

 

to comply with California Rules of Court, rule 8.252(a)(2). On 

August 26, 2019 plaintiffs renewed their request for judicial 

notice of the same information. We deny plaintiffs’ renewed 

request for judicial notice on the basis the documents and 

videotape are not necessary for our resolution of the appeal 

because USOC’s knowledge of sexual abuse by Olympic coaches is 

not sufficient to create a special relationship with taekwondo 

coaches or athletes. (See Jordache Enterprises, Inc. v. Brobeck, 

Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [judicial

notice denied where “the requests present no issue for which

judicial notice of these items is necessary, helpful, or relevant”];

Appel v. Superior Court (2013) 214 Cal.App.4th 329, 342, fn. 6 

[judicial notice denied where materials are not “relevant or 

necessary” to the court’s analysis].) However, we deny USOC’s 

and USAT’s motions to strike the portions of plaintiffs’ reply brief 

that reference the documents attached to their request for 

judicial notice. Instead, we have not considered the cited May 

2018 congressional testimony in our analysis.
37

C. Plaintiffs Have Not Alleged Sufficient Facts To Support 

Their Claims Against USOC and USAT Based on Vicarious 

Liability

Plaintiffs base their claims for negligence (fourth cause of 

action), the negligent hiring and retention of Gitelman (sixth 

cause of action), the intentional infliction of emotional distress 

(seventh cause of action), and the negligent infliction of emotional 

distress (eighth cause of action) on alternative theories of joint 

venture, agency, and an employment relationship. Plaintiffs 

have not alleged facts sufficient to state a claim under any of 

these theories.

1. Plaintiffs have not alleged a joint venture among 

Gitelman, USAT, and USOC

Plaintiffs base their fourth cause of action for negligence in 

part on their allegation Gitelman’s conduct was in furtherance of 

a joint venture among the defendants. “‘There are three basic 

elements of a joint venture: the members must have joint control 

over the venture (even though they may delegate it), they must 

share the profits of the undertaking, and the members must each 

have an ownership interest in the enterprise.’” (Scottsdale Ins. 

Co. v. Essex Ins. Co. (2002) 98 Cal.App.4th 86, 91; accord, 

Chambers v. Kay (2002) 29 Cal.4th 142, 151 [“‘[A] joint venture 

exists where there is an “agreement between the parties under 

which they have a community of interest, that is, a joint interest, 

in a common business undertaking, an understanding as to the 

sharing of profits and losses, and a right of joint control.”’”]; 

Orosco v. Sun-Diamond Corp. (1997) 51 Cal.App.4th 1659, 1666.)

“‘“An essential element of a partnership or joint venture is 

the right of joint participation in the management and control of 
38

the business. [Citation.] Absent such right, the mere fact that 

one party is to receive benefits in consideration of services 

rendered or for capital contribution does not, as a matter of law, 

make him a partner or joint venturer.”’” (Simmons v. Ware 

(2013) 213 Cal.App.4th 1035, 1056; accord, Kaljian v. Menezes 

(1995) 36 Cal.App.4th 573, 586.)

Plaintiffs allege USOC, USAT, and Gitelman “were 

engaged in a joint venture/enterprise to promote and profit from 

the sport of taekwondo and to train American athletes to win 

medals in Olympic and other international competitions. 

Plaintiffs are informed and believe that these defendants made 

loans and other monetary contributions to the other members of 

the venture/enterprise, paid for advertising and other expenses 

for the benefit of the venture/enterprise and/or had 

representatives on the various boards of directors for the 

defendants who had a voice in the decisions of the members of the 

venture/enterprise and had a right of control in directing the 

conduct of the enterprise.”

Plaintiffs fail to allege the essential element of an 

agreement among Gitelman, USOC, and USAT to share in the 

profits and losses of the alleged joint venture. (See Simmons v. 

Ware, supra, 213 Cal.App.4th at pp. 1055-1056 [no joint venture 

where there was no agreement to share in profits and losses, even 

though defendant had some control over the venture]; Orosco v. 

Sun-Diamond Corp., supra, 51 Cal.App.4th at p. 1666 [defendant 

agricultural cooperative was not engaged in joint venture with 

plaintiff’s employer to run raisin plant where the cooperative did 

not control or operate plant or share in profits].) Further, 

plaintiffs do not allege Gitelman had “the right of joint 

participation in the management and control of the business.” 
39

(Simmons, at p. 1056.) Rather, they only allege on information 

and belief USOC and USAT contributed money to the enterprise, 

paid for expenses, and generally “‘“had a right of control in 

directing the conduct of the enterprise.”’” Plaintiffs assert they 

can amend their complaint to allege the nature of the joint 

venture relationship and the roles Gitelman, USOC, and USAT 

played in the venture. But plaintiffs have failed to set forth 

specific facts they could allege to support a finding Gitelman 

shared in the profits or had a right of control over the asserted 

joint venture. Therefore, the trial court did not abuse its 

discretion in denying plaintiffs leave to amend to allege 

derivative liability based on a joint venture.

2. Plaintiffs have not adequately alleged Gitelman was 

an agent of USOC or USAT

Plaintiffs alternatively base their fourth cause of action for 

negligence, as well as their seventh and eighth causes of action 

for the intentional and negligent infliction of emotional distress, 

on Gitelman’s alleged status as an agent of USOC and USAT. 

“‘“‘Agency is the relationship which results from the 

manifestation of consent by one person to another that the other 

shall act on his behalf and subject to his control, and consent by 

the other so to act.’ [Citation.] ‘The principal must in some 

manner indicate that the agent is to act for him, and the agent 

must act or agree to act on his behalf and subject to his control.’”’” 

(Secci v. United Independent Taxi Drivers, Inc. (2017) 

8 Cal.App.5th 846, 855; accord, Barenborg, supra, 33 Cal.App.5th 

at p. 85 [local fraternity chapter did not act as agent of national 

fraternity].) “‘“‘The chief characteristic of the agency is that of 

representation, the authority to act for and in the place of the 
40

principal for the purpose of bringing him or her into legal 

relations with third parties.’”’” (Castillo v. Glenair, Inc. (2018) 

23 Cal.App.5th 262, 277; accord, Daniels v. Select Portfolio 

Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1171.)

“‘A principal who personally engages in no misconduct may 

be vicariously liable for the tortious act committed by an agent 

within the course and scope of the agency.’” (Barenborg, supra, 

33 Cal.App.5th at p. 85; accord, Secci v. United Independent Taxi 

Drivers, Inc., supra, 8 Cal.App.5th at p. 855.) Moreover, a 

principal is liable to a third party harmed by an agent’s conduct 

when the principal later ratifies the agent’s conduct. (Rakestraw 

v. Rodrigues (1972) 8 Cal.3d 67, 73; Dickinson v. Cosby (2019) 

37 Cal.App.5th 1138, 1158.) “Ratification is the voluntary 

election by a person to adopt in some manner as his own an act 

which was purportedly done on his behalf by another person, the 

effect of which, as to some or all persons, is to treat the act as if 

originally authorized by him.” (Rakestraw, at p. 73; accord, 

Dickinson, at p. 1158.)

An allegation of agency constitutes an averment of ultimate 

fact, which we accept as true on a demurrer. (Skopp v. Weaver

(1976) 16 Cal.3d 432, 437; City of Industry v. City of Fillmore 

(2011) 198 Cal.App.4th 191, 212; Blickman Turkus, LP v. MF 

Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 886.) 

But where factual allegations are based on information and 

belief, the plaintiff must allege “information that ‘lead[s] [the 

plaintiff] to believe that the allegations are true.’” (Doe v. City of 

Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5 [plaintiffs failed 

adequately to allege city and its police department were on notice 

of police officer’s prior unlawful sexual conduct, noting plaintiff 

could not plausibly allege the city or police department withheld 
41

or concealed evidence of their knowledge or notice]; accord, 

Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 

1149, 1158-1159 [trial court properly denied leave to amend 

because plaintiff had no information to support allegations on 

information and belief as to assignments of note].)

Here, plaintiffs allege on information and belief Gitelman 

was an agent of USOC and USAT, but they fail to allege any 

information that led them to believe he acted as USOC’s and 

USAT’s agent.12 On appeal, plaintiffs point to their allegations 

USOC certified USAT as a national governing body, USOC

exercised control over USAT by requiring adoption of policies and 

procedures, and USOC had authority to place USAT on 

probation. As to USAT, plaintiffs point to their allegations USAT 

is the national governing body for taekwondo, it formulates

policies and procedures governing local taekwondo coaches, and it 

requires athletes to be members of USAT and to train under 

USAT-registered coaches. These allegations show USOC was 

able to exercise control over USAT, and USAT in turn could 

exercise control over Gitelman. But the allegations do not 

establish how USOC and USAT granted Gitelman “‘“‘authority to 

 

12 Plaintiffs allege in their general allegations Gitelman was 

an agent of USOC and USAT; he acted within the scope of his 

authority as an agent; and USOC and USAT ratified his tortious 

and unlawful activities. However, the specific allegations assert 

only upon information and belief Gitelman was acting as an

agent of USOC and USAT. As discussed, the specific allegations 

based on information and belief control over the general 

allegation Gitelman acted as an agent for USOC and USAT. 

(Ferrick v. Santa Clara University, supra, 231 Cal.App.4th at

p. 1352; Perez v. Golden Empire Transit Dist., supra, 

209 Cal.App.4th at p. 1236.)
42

act for and in the place of the principal for the purpose of 

bringing him or her into legal relations with third parties.’”’” 

(Castillo v. Glenair, Inc., supra, 23 Cal.App.5th at p. 277; accord, 

Daniels v. Select Portfolio Servicing, Inc., supra, 246 Cal.App.4th 

at p. 1171.)

In seeking leave to amend the complaint, plaintiffs have 

not set forth facts they could allege to show an agency 

relationship. Thus, the trial court did not abuse its discretion in 

denying leave to amend as to the derivative claims based on 

Gitelman’s purported agency relationship with USOC or USAT.

3. Plaintiffs have not adequately alleged an employment 

relationship between Gitelman and either USOC or 

USAT

Plaintiffs also base their claims for negligence, negligent 

and intentional infliction of emotional distress, and the negligent 

hiring or retention of Gitelman on his alleged status as an 

employee of USOC and USAT. Under the respondeat superior 

doctrine, “‘an employer may be held vicariously liable for torts 

committed by an employee within the scope of employment.’” 

(Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 491; 

accord, Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 

12 Cal.4th 291, 296.) “Under certain circumstances, the 

employer may be subject to this form of vicarious liability even 

for an employee’s willful, malicious, and criminal conduct.” 

(Patterson, at p. 491; accord, Lisa M., at pp. 296-297.) “To be 

within the scope of employment, the incident giving rise to the 

injury must be an outgrowth of the employment, the risk of 

injury must be inherent in the workplace, or typical of or broadly 

incidental to the employer’s enterprise.” (Torres v. Parkhouse 
43

Tire Service, Inc. (2001) 26 Cal.4th 995, 1008; accord, Lisa M., at 

p. 298.) “[A] sexual tort will not be considered engendered by the 

employment unless its motivating emotions were fairly 

attributable to work-related events or conditions.” (Lisa M., at 

p. 301; accord, City of Murrieta, supra, 102 Cal.App.4th at p. 907 

[“The focus is on whether the assault arose out of the exercise of 

job-created law enforcement authority over the plaintiff, not 

whether the officer’s activity was characteristic or foreseeable.”]; 

see Farmers Ins. Group v. County of Santa Clara (1995) 

11 Cal.4th 992, 1006 [“except where sexual misconduct by onduty police officers against members of the public is involved . . . , 

the employer is not vicariously liable to the third party for such 

misconduct”].)

In addition, “an employer may be liable to a third party for 

negligently hiring or retaining an unfit employee.” (J.W. v. 

Watchtower Bible Tract Society of New York, Inc. (2018) 

29 Cal.App.5th 1142, 1163; accord, Phillips v. TLC Plumbing, 

Inc. (2009) 172 Cal.App.4th 1133, 1139.) “Negligence liability 

will be imposed on an employer if it ‘knew or should have known 

that hiring the employee created a particular risk or hazard and 

that particular harm materializes.’” (Phillips, at p. 1139; accord, 

ZV v. County of Riverside (2015) 238 Cal.App.4th 889, 903 

[county not liable for negligent supervision of social worker where 

county had no prior knowledge of social worker’s propensity to 

commit sexual assault]; Juarez, supra, 81 Cal.App.4th at pp. 395, 

397 [Boy Scouts not liable for negligent hiring, supervision, and 

retention of scoutmaster where they were not on notice 

scoutmaster “posed an unreasonable risk to minors”].)

To support their derivative claims for negligence, negligent 

hiring and retention, and the negligent and intentional infliction 
44

of emotional distress, plaintiffs allege upon information and 

belief Gitelman was an employee of USOC and USAT and acted 

within the scope of his employment. But plaintiffs do not allege, 

as required, any information that led them to believe Gitelman 

was an employee of USOC or USAT. (Doe v. City of Los Angeles, 

supra, 42 Cal.4th at p. 551, fn. 5; Gomes v. Countrywide Home 

Loans, Inc., supra, 192 Cal.App.4th at pp. 1158-1159.) To the 

contrary, they allege Gitelman “owned and/or was employed by 

defendant NVT.”

Moreover, in seeking leave to amend, plaintiff do not 

present facts they could allege to show an employment 

relationship with USOC or USAT. Thus, the trial court did not 

abuse its discretion in denying leave to amend the derivative 

claims based on Gitelman’s purported employment relationship

with USOC or USAT.

D. Plaintiffs Have Not Alleged Facts Sufficient To State a 

Claim for the Intentional Infliction of Emotional Distress

“A cause of action for intentional infliction of emotional 

distress exists when there is ‘“‘“(1) extreme and outrageous 

conduct by the defendant with the intention of causing, or 

reckless disregard of the probability of causing, emotional 

distress; (2) the plaintiffs’ suffering severe or extreme emotional 

distress; and (3) actual and proximate causation of the emotional 

distress by the defendant’s outrageous conduct.”’”’ [Citations.] A 

defendants’ conduct is ‘outrageous’ when it is so ‘“‘extreme as to 

exceed all bounds of that usually tolerated in a civilized 

community.’”’ [Citation.] And the defendant’s conduct must be 

‘“‘intended to inflict injury or engaged in with the realization that 

injury will result.’”’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 
45

1050-1051, quoting Potter v. Firestone Tire & Rubber Co. (1993) 

6 Cal.4th 965, 1001; accord, Christensen v. Superior Court (1991) 

54 Cal.3d 868, 903.)

As to USOC’s and USAT’s direct liability, USAT’s failure to 

adopt and implement adequate policies and procedures to prevent 

the sexual abuse of taekwondo athletes, and USOC’s failure to 

require USAT to take prompt action to protect youth athletes, 

were not, as a matter of law, so “‘“‘extreme as to exceed all 

bounds of that usually tolerated in a civilized community.’”’” 

(Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) To the extent 

USAT did not protect plaintiffs from Gitelman after learning in 

September 2013 of Brown’s sexual abuse allegations, that could 

potentially support a claim against USAT for the intentional 

infliction of emotional distress. But plaintiffs have not alleged 

facts showing Gitelman continued to sexually abuse (or even 

coach) any of the plaintiffs after Gitelman’s sexual abuse of 

Brown was disclosed to USAT in September 2013. Bordon and 

Gatt stopped competing in taekwondo events in 2010. Plaintiffs 

allege Gitelman stopped coaching Brown sometime in 2013, but 

have not alleged or asserted on appeal that Gitelman continued 

to coach Brown after she disclosed the sexual abuse and appeared

at the October 2013 USAT ethics committee hearing. Moreover, 

plaintiffs do not explain how they could amend their complaint to 

allege additional facts to support this claim.

DISPOSITION

We affirm the judgment of dismissal as to USOC. We 

reverse the judgment of dismissal as to USAT and remand for 

further proceedings consistent with this opinion. On remand, the 
46

trial court should consider USAT’s motion to strike, which it 

denied as moot.

USOC is entitled to recover its costs on appeal from 

plaintiffs. Plaintiffs are entitled to recover their costs on appeal 

from USAT.

FEUER, J.

WE CONCUR:

PERLUSS, P. J.

ZELON, J.