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8 United States District Court 9 Central District of California

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11 E.M., Case №: 2:22-cv-09410-ODW (ASx)

12 Plaintiff, ORDER GRANTING IN PART AND

13 v. DENYING IN PART DEFENDANTS’ 14 MOTIONS TO DISMISS [155] [161] Varsity Brands, LLC et al. 15 Defendants. 16 17 I. INTRODUCTION 18 Plaintiff E.M.1 brings this action alleging that she was sexually assaulted by her 19 cheer coach, Defendant Shawn Miller. (First Am. Compl. (“FAC”), ECF No. 133.) 20 During the time of the alleged misconduct, Miller was credentialed by the U.S. All 21 Star Federation (“USASF”), a national governing body “whose responsibility included 22 creating a safe and positive environment for minor child participants.” (Id. ¶¶ 3, 63.) 23 Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), Miller now moves to 24 dismiss the first, second, fourth, ninth, and eleventh causes of action, and USASF 25 moves to dismiss the first, second, third, fifth, seventh, eighth, ninth, tenth, eleventh, 26 and twelfth causes of action. (Miller Mot. Dismiss (“Miller Mot.”), ECF No. 161; 27 USASF Mot. Dismiss (“USASF Mot.”), ECF No. 155.) E.M. opposes both motions. 28 1 Given the nature of this action, Plaintiff will be identified only by the initials E.M. 1 (Opp’n Miller Mot., ECF No. 162; Opp’n USASF Mot., ECF No. 160.) For the 2 following reasons, the Court GRANTS IN PART and DENIES IN PART each of 3 Defendants’ Motions.2 4 II. BACKGROUND 5 Unless stated otherwise, the following facts are taken from the Plaintiff’s First 6 Amended Complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that 7 well-pleaded factual allegations are accepted as true for purposes of a motion to 8 dismiss). 9 A. The Abuse of Plaintiff E.M. 10 E.M. is a former cheer athlete who Miller began coaching when she was fifteen 11 years old. (FAC ¶ 162.) At that time, Miller—a well-respected coach in the cheer 12 community—was around the age of twenty-four. (Id. ¶¶ 162–63.) Through their 13 coaching relationship, E.M. grew to trust and admire Miller, looking up to him as a 14 coach and striving to win his approval. (Id. ¶ 165.) When E.M. was fifteen years old, 15 Miller began paying special attention to E.M. (Id. ¶ 164.) Miller “began 16 implementing unusual stunt spotting techniques . . . and unconventional catching 17 positions,” resulting in Miller “touching [E.M.] in an unwanted and inappropriate 18 manner.” (Id. ¶ 166.) Between the ages of fifteen and eighteen, “Miller’s lingering 19 touches eventually progressed to groping, fondling and other unwanted touching.” 20 (Id. ¶ 167.) Miller’s relationship with E.M. extended outside of the cheer facility, 21 where Miller “provided [E.M.] with alcohol and illegal drugs, including cocaine and 22 MDMA.” (Id. ¶¶ 172, 181.) E.M. did not report Miller’s conduct “[b]ecause of her 23 fondness for Defendant Miller, and his position of authority over her.” (Id. ¶ 169.) 24 After E.M. turned eighteen, Miller “initiated a sexual relationship with [E.M.], 25 often taking her to his home or vehicle to engage in sexual intercourse.” (Id. ¶ 176.) 26 As a licensed realtor, Miller also used his access to “upscale, vacant properties listed 27

28 2 Having carefully considered the papers filed in connection with the Motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 for sale to lure [E.M.] to secluded locations where he would engage in sexual 2 intercourse with her.” (Id. ¶ 178–79.) The sexual relationship between Miller and 3 E.M. continued for approximately two years, during which time Miller continued to 4 work as a cheer coach. (Id. ¶¶ 182–83.) 5 Following Miller’s abuse, E.M. “began experiencing severe depression, anxiety 6 and panic attacks.” (Id. ¶ 184.) She developed an eating disorder and a substance 7 abuse disorder. (Id.) E.M. sought medical attention—including psychotherapy—to 8 address her symptoms, but she “did not fully appreciate the root cause of her issues.” 9 (Id. ¶ 185.) 10 B. USASF’s Alleged Involvement 11 Founded in 2003, USASF’s purpose was “to provide governance and regulatory 12 support.” (Id. ¶ 62.) USASF’s responsibilities included “creating a safe and positive 13 environment for minor child participants, including an environment free from abuse 14 and misconduct.” (Id. ¶ 63.) During the time of the incident, E.M. and Miller both 15 held active memberships with USASF, a prominent governing body in the cheer 16 industry. (Id. ¶¶ 153–54.) E.M. was required to purchase these annual memberships 17 to participate in her cheer program and attend certain competitive cheer events. (Id. 18 ¶¶ 65–66.) 19 USASF created a program titled “USASF Certified,” through which USASF 20 provided a seal to “certified” gyms, coaches, or adult members that had been duly 21 vetted and met USASF’s highest standards regarding safety practices and prevention 22 of minor child abuse. (Id. ¶ 67.) USASF used this credentialing and certification to 23 signal to parents and athletes that it would “continually monitor and ensure 24 compliance with minor child safety protections, policies, procedures and protocols by 25 its member gyms, coaches, vendors, and other affiliates.” (Id. ¶ 68.) 26 USASF also “established policies, procedures, and guidelines for everything 27 from coaching credentials to boundaries for appropriate and inappropriate conduct.” 28 (Id. ¶ 77.) Through these policies, USASF undertook investigations into allegations 1 of misconduct by credentialed coaches and vendors. (Id. ¶ 84.) As such, when an 2 athlete reported an incident to their gym or a certified coach within their gym, they 3 were directed to USASF. (Id. ¶ 85.) USASF employed and retained certain 4 individuals to provide safety and regulatory services, which included conducting 5 investigations intended to prevent and mitigate athlete harm. (Id. ¶ 363.) 6 C. Reporting Miller’s Conduct 7 In 2021, when E.M. was cheering at the same gym where she cheered under 8 Miller’s coaching, she began experiencing severe complex post-traumatic stress 9 disorder (“CPTSD”) symptoms. (Id. ¶ 186.) It was at this time that E.M. disclosed 10 the details of Miller’s abuse to her current coach, who reported the abuse and assisted 11 E.M. in beginning the USASF reporting process. (Id. ¶¶ 186–87.) However, rather 12 than provide E.M. “with a degree of security,” she found USASF’s investigative and 13 reporting processes to be “deeply traumatizing and unsettling.” (Id. ¶ 188.) During 14 the investigative interviews with USASF investigators, E.M. experienced bullying, 15 skepticism, dismissiveness, and a general lack of belief. (Id. ¶ 189.) Furthermore, she 16 was never made aware of any disposition of her report, or any action taken against 17 Miller as a result of her report. (Id.) Miller was ultimately added to the USASF 18 Uniform Ineligibility List, where he was cited for “[m]ember policy violation related 19 to athlete protection.” (Id. ¶ 190.). 20 D. This Case’s Procedural History 21 E.M. initiated this action on December 29, 2022, (Compl., ECF No. 1), and 22 filed her First Amended Complaint on October 4, 2023. In her FAC, E.M. alleges: 23 (1) violation of the Protecting Young Victims from Sexual Abuse Act, 18 U.S.C. 24 § 2255; (2) gross negligence; (3) negligent supervision; (4) assault and battery; 25 (5) breach of contract; (6) unjust enrichment; (7) fraud; (8) negligent security; (9) civil 26 conspiracy; (10) respondeat superior; (11) intentional infliction of emotional distress 27 (“IIED”); and (12) violation of the California Consumers Legal Remedies Act 28 (“CLRA”), Cal. Civ. Code § 1770. (FAC ¶ 207–388.) 1 Five of the initial twelve defendants remain active in this case: USASF; 2 CheerForce, LLC; Rebecca Herrera; Shawn Herrera; and Shawn Miller. Defendants 3 CheerForce, Rebecca Herrera, and Shawn Herrera have each answered E.M.’s FAC. 4 (See Answers, ECF Nos. 150–52.) Miller and USASF now move under Rule 12(b)(6) 5 to dismiss portions of E.M.’s FAC. (Miller Mot.; USASF Mot.) 6 III. LEGAL STANDARD 7 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 8 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 9 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 10 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 11 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 12 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 13 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 14 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual 15 matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 16 556 U.S. at 678 (internal quotation marks omitted). 17 The determination of whether a complaint satisfies the plausibility standard is a 18 “context-specific task that requires the reviewing court to draw on its judicial 19 experience and common sense.” Id. at 679. A court is generally limited to the 20 pleadings and must construe all “factual allegations set forth in the complaint . . . ‘as 21 true and . . . in the light most favorable’” to the plaintiff. Lee v. City of Los Angeles, 22 250 F.3d 668, 679 (9th Cir. 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 23 1136, 1140 (9th Cir. 1996)). However, a court need not blindly accept conclusory 24 allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. 25 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 26 Where a district court grants a motion to dismiss, it should generally provide 27 leave to amend unless it is clear the complaint could not be saved by any amendment. 28 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 2 determines that the allegation of other facts consistent with the challenged pleading 3 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 4 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 5 denied . . . if amendment would be futile.” Carrico v. City & County of San 6 Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011). 7 IV. MILLER’S MOTION TO DISMISS 8 Turning first to Miller’s Motion, Miller moves to dismiss E.M.’s first, second, 9 fourth, ninth, and eleventh causes of action. The Court considers each of Miller’s 10 arguments in turn. 11 A. The California Common Law Claims 12 E.M. brings her second (gross negligence), fourth (assault and battery), ninth 13 (civil conspiracy), and eleventh (IIED) causes of action under California common law. 14 Miller argues that each of these claims fails because the applicable statute of 15 limitations period is two years and therefore time barred as a matter of law. (Miller 16 Mot. 8–9.) 17 Under the California Code of Civil Procedure, an action for assault, battery, or 18 injury to an individual caused by the wrongful act or neglect of another must be 19 brought within two years. Cal. Civ. Proc. Code § 335.1. In 2019, however, 20 California’s Assembly Bill 218 amended the California Code of Civil Procedure to 21 allow for victims of “childhood sexual abuse” to file civil claims related to the abuse 22 at any time up until the age of 40. See Cal. Assemb. B. 218; Cal. Civ. Proc. Code 23 § 340.1. Miller argues that the extended limitations period does not apply here 24 because E.M. is not a victim of “childhood sexual abuse,” which is defined to include 25 “any act committed against the plaintiff that occurred when the plaintiff was under the 26 age of 18 years and that would have been proscribed by . . . Section 647.6 of the Penal 27 Code.” Cal. Civ. Proc. Code. § 340.1(c). 28 1 Although Miller is correct that E.M. pleads the sexual relationship between 2 Miller and E.M. began only after E.M. turned eighteen, a sexual relationship is not 3 required for certain conduct to be proscribed by California Penal Code section 647.6 4 and therefore constitute “childhood sexual abuse.” Section 647.6 penalizes any 5 person “who annoys or molests any child under 18 years of age.” Cal. Penal Code 6 § 647.6. To convict a defendant under this statute, the prosecution must prove (1) “the 7 defendant engaged in conduct directed at a child,” (2) “a normal person, without 8 hesitation, would have been disturbed, irritated, offended, or injured by the 9 defendant’s conduct,” (3) “the defendant’s conduct was motivated by an unnatural or 10 abnormal sexual interest in the child,” and (4) “the child was under the age of 18 years 11 at the time of the conduct.” People v. Clotfelter, 65 Cal. App. 5th 30, 50 (2021). “It 12 is not necessary that the child actually be irritated or disturbed or that the child 13 actually be touched.” Id. (citing CALCRIM No. 1122; People v. Lopez, 19 Cal. 4th 14 282, 289 (1998)). It is an objective determination whether the conduct would have 15 disturbed, irritated, offended, or injured a normal person. Id. at 50–51. 16 Here, E.M. alleges that Miller used the guise of “spotting techniques” and 17 “catching positions” in order to “touch[ E.M.] in an unwanted and inappropriate 18 manner.” (FAC ¶¶ 164, 166.) Miller’s touching of E.M. “progressed to groping, 19 fondling and other unwanted touching.” (Id. ¶ 167.) It is therefore entirely reasonable 20 that a normal person, without hesitation, would have been disturbed, irritated, 21 offended, and injured by this conduct. E.M. further alleges that Miller began paying 22 her special attention, even when Miller first began coaching her at the age of fifteen. 23 (Id. ¶¶ 164, 166.) That relationship then turned sexual almost immediately after E.M. 24 turned eighteen, (id. ¶ 176), rendering it reasonable to conclude that Miller’s conduct 25 before E.M. obtained the age of majority was motivated by an unnatural or abnormal 26 sexual interest. It is also clear that E.M.’s allegations satisfy the two remaining 27 elements of section 647.6: that Miller’s conduct was directed at E.M. and that E.M. 28 was under the age of 18 years old at the time of the conduct. (See FAC ¶ 167 1 (alleging that E.M. was subjected to Miller’s conduct of groping, fondling, and other 2 unwanted touching from the ages of fifteen to eighteen years old).) 3 Therefore, at this stage of litigation—where E.M.’s well-pleaded factual 4 allegations are taken as true—Miller’s unwanted touching of E.M. during coaching 5 sessions could be found to violate California Penal Code section 647.6. Thus, E.M. 6 sufficiently pleads conduct that meets the definition of “childhood sexual assault” for 7 the purpose of California Code of Civil Procedure section 340.1, and E.M.’s civil 8 claims under California common law are not time barred.3 9 B. Violation of the Protecting Young Victims from Sexual Abuse Act, 10 18 U.S.C. § 2255 11 Miller next argues that E.M fails to plead facts sufficient to support a violation 12 of 18 U.S.C. § 2255. (Miller Mot. 6–7.) Under this statute, any person “who, while a 13 minor, was a victim of a violation of section . . . 2422 . . . and who suffers personal 14 injury as a result of such violation . . . may sue in any appropriate United States 15 District Court.” 18 U.S.C. § 2255. To summarize the relevant criminal statute, 16 § 2422(a) prohibits anyone from knowingly persuading, inducing, enticing, or 17 coercing an individual to travel in interstate or foreign commerce with the purpose of 18 engaging in prostitution or any criminal sexual activity for which any person can be 19 charged with a criminal offense. 18 U.S.C. § 2422(a). Furthermore, § 2422(b) 20 provides that if the individual who has been persuaded, induced, enticed, or coerced to 21 engage in prostitution or other criminal sexual act is under the age of 18, then the term 22 of imprisonment shall be no less than ten years. 18 U.S.C. § 2422(b). Miller argues 23 that E.M. was not, while a minor, a victim of § 2422 because “a simple reading of this 24 statute” makes it clear that it “deals with forced prostitution, which is certainly not 25 alleged in this Complaint.” (Miller Mot. 6.) However, Miller fails to engage with the 26 latter provision of the statute, which includes “prostitution or any sexual activity for 27

28 3 Although this fact is not disputed, the Court notes that E.M. is not yet 40 years of age. (See Opp’n Miller Mot. 6.) 1 which any person can be charged with a criminal offense.” 18 U.S.C. § 2422(b) 2 (emphasis added); see also 18 U.S.C. § 2422(a) (“. . . in prostitution, or in any sexual 3 activity for which any person can be charged with a criminal offense . . .”). 4 “By its plain language, Section 2422(b) criminalizes communications that 5 persuade, induce, entice, or coerce a minor to engage in sexual activity regarded as 6 criminal.” United States v. Lopez, 4 F.4th 706, 720 (9th Cir. 2021). Here, as 7 discussed in the previous section, Miller could be found to have violated California 8 Penal Code section 647.6, which proscribes “annoy[ing] or molest[ing] any child 9 under 18 years of age.” As E.M. has sufficiently pleaded a potential violation of 10 California Penal Code, this could also be sufficient to constitute sexual activity for 11 which a person can be charged with a criminal offense and support a violation of 12 § 2422. The Court therefore rejects Miller’s only argument for why the Court should 13 dismiss E.M.’s claim under 18 U.S.C. § 2255, which is that § 2422 does not apply 14 because the statute “only deals with forced prostitution.” (Miller Mot. 6–7.) The 15 Court denies Miller’s motion to dismiss on this basis. Section 2422 is broader than 16 Miller contends, see Lopez, 4 F.4th at 721 (“Section 2422(b) . . . should be construed 17 broadly.”), and Miller raises no other grounds for why the Court should dismiss 18 E.M.’s first cause of action. 19 C. Civil Conspiracy 20 Lastly, Miller argues that E.M. fails to sufficiently plead her ninth cause of 21 action for civil conspiracy. (Miller Mot. 7–8.) Civil conspiracy requires facts 22 showing that “each member of the conspiracy acted in concert and came to a mutual 23 understanding to accomplish a common and unlawful plan, and that one or more of 24 them committed an overt act to further it.” Choate v. County of Orange, 86 Cal. App. 25 4th 312, 333 (2000). 26 E.M. argues that the “gravamen” of her civil conspiracy claim is “promoting the 27 private All-Star cheer network in which Defendant Cheer[F]orce operated, and in 28 which Miller was a star coach, by falsely claiming that the network was safe from the 1 threat of sexual abuse.” (Opp’n Miller Mot. 4 (citing FAC ¶¶ 286–87).) Miller was 2 allegedly “part of this agenda,” which E.M. claims “was motivated by ‘substantial 3 revenue, profits, and funding paid by the athletes and their families in exchange for 4 the fraudulent messages and misrepresentations,’ and by Defendants’ efforts to 5 conceal dangerous coaches within the network.” (Id. (quoting FAC ¶¶ 287–89).) 6 “[T]o maintain an action for conspiracy, a plaintiff must allege that the 7 defendant had knowledge of and agreed to both the objective and the course of action 8 that resulted in the injury, that there was a wrongful act committed pursuant to that 9 agreement, and that there was resulting damage.” Berg & Berg Enters., LLC v. 10 Sherwood Partners, Inc., 131 Cal. App. 4th 802, 823 (2005) (citing Quelimane Co. v. 11 Stewart Title Guar. Co., 19 Cal. 4th 26, 47 (1998)). Civil conspiracy “is not an 12 independent tort,” but rather a “legal doctrine that imposes liability on persons who, 13 although not actually committing a tort themselves, share with the immediate 14 tortfeasors a common plan or design in its perpetration.” Id. (quoting Kidron v. Movie 15 Acquisition Corp., 40 Cal. App. 4th 1571, 1581 (1995)). 16 Here, E.M. fails to plead facts alleging that Defendants “came to a mutual 17 understanding to accomplish a common and unlawful plan.” Choate, 86 Cal. App. 4th 18 at 333. “It is not enough that the [conspirators] knew of an intended wrongful act, 19 they had to agree—expressly or tacitly—to achieve it.” Id. E.M. falls short of 20 pleading a prima facie case of a conspiracy—centered around Miller’s wrongful act— 21 that the other Defendants agreed to achieve a common plan “to conceal dangerous 22 coaches within the network.” (Opp’n Miller Mot. 4.) There is also no evidence 23 pleaded with factual specificity that any other Defendants knew Miller was a 24 “dangerous coach,” or that there was intent, knowledge, or agreement to enter into a 25 conspiracy. Although E.M. summarily concludes that “Defendants were a collective 26 group of individuals working in concert and individually toward a common plan,” 27 (FAC ¶ 285), E.M. fails to support these allegations with well-pleaded facts that the 28 1 common plan was unlawful. Accordingly, the Court grants Miller’s motion to dismiss 2 E.M.’s ninth cause of action for civil conspiracy with leave to amend. 3 V. USASF’S MOTION TO DISMISS 4 Turning next to USASF’s Motion, USASF moves to dismiss the first, second, 5 third, fifth, seventh, eighth, ninth, tenth, eleventh, and twelfth causes of action. The 6 Court considers each cause of action in turn. 7 A. Violation of the Protecting Young Victims from Sexual Abuse Act, 8 18 U.S.C. § 2255 9 First, like Miller (albeit on different grounds), USASF moves to dismiss E.M.’s 10 first cause of action under 18 U.S.C. § 2255. USASF, unlike Miller, is not alleged to 11 be directly implicated in E.M.’s abuse, but rather through its role as the supervisory 12 body overseeing All-star cheer. (See FAC ¶ 41–159.) As to E.M.’s first cause of 13 action, USASF argues that, first, E.M. fails to allege that “Defendants have been 14 convicted of any crime described in the federal criminal statutes listed in 18 U.S.C. 15 § 2255” and, second, “[§] 2255 does not provide for any form of secondary/vicarious 16 liability that could extend liability to USASF.” (USASF Mot. 4.) As discussed 17 above, the plain text of § 2255 states that any person “who, while a minor, was a 18 victim of a violation of [specified enumerated sections] and who suffers personal 19 injury as a result of such violation, regardless of whether the injury occurred while 20 such person was a minor, may sue in any appropriate United States District Court.” 21 Turning to USASF’s first argument, although this question of law has not been 22 fully developed in this Circuit, the Court finds that § 2255 does not require a 23 defendant to have been criminally convicted of the predicate offense. See N.S. v. 24 Rockett, No. 3:16-CV-2171-AC, 2018 WL 6920125, at *5 (D. Or. Oct. 19, 2019) (“It 25 is enough that the civil claimant prove by a preponderance of the evidence that the 26 defendant violated the enumerated statute.” (citing Prewett v. Weems, 749 F.3d 454, 27 458 (6th Cir. 2014))); Doe v. Schneider, 667 F. Supp. 2d 524, 529–30 (E.D. Pa. 2009) 28 (requiring only that a proper predicate statute violation is alleged in the complaint, 1 along with supporting facts). As examined in Rockett, other courts have also found 2 this conclusion to be consistent with § 2255’s legislative history. Rockett, 2018 WL 3 6920125, at *5 (citing Smith v. Husband, 376 F. Supp. 2d 603, 611–12 (E.D. Va. 4 2005) (examining § 2255’s legislative history to conclude Congress had intended the 5 statute to provide a remedy for victims even absent a criminal conviction); Doe v. 6 Liberatore, 478 F. Supp. 2d 742, 755 (M.D. Pa. 2007) (adopting Smith’s 7 Congressional findings); Cisneros v. Aragon, 485 F.3d 1226, 1232 (10th Cir. 2007) 8 (citing Smith and “assum[ing] that a criminal conviction is not necessary for a 9 defendant to face civil liability under” § 2255)). The Court adopts the reasoning of 10 these courts and finds that, “given the legislative history of 18 U.S.C. § 2255, 11 Congressional intent is to make the civil remedies provision available to any victim 12 able to show by a preponderance of the evidence that the defendant committed the acts 13 described in any of the listed offenses.” Smith, 376 F. Supp. 2d at 613. Here, neither 14 Miller (as discussed above) nor USASF provide a valid argument for why E.M. fails 15 to plead a violation of 18 U.S.C. § 2422, which therefore serves as an adequate 16 predicate offense to support a “violation” of § 2255. 17 USASF next argues that § 2255 does not provide for any form of vicarious 18 liability that could extend to USASF. USASF is correct in that the language of the 19 statute, as well as its legislative history, do not support imposing vicarious liability 20 under the statute. See Doe v. City of Gauley Bridge, No. 2:21-CV-00491, 2022 WL 21 3587827, at *13 (S.D. W. Va. Aug. 22, 2022) (“[B]ased on Congress’s silence and 22 § 2255’s legislative history, the [c]ourt finds that Congress did not intend to permit a 23 theory of vicarious liability under § 2255.”); Doe v. Hansen, No. 4:16-CV-546 JAR, 24 2018 WL 2223679, at * 5 (E.D. Mo. May 15, 2018) (“After careful consideration, the 25 Court agrees with the conclusion reached by [Jean-Charles v. Perlitz, 937 F. Supp. 2d 26 276 (D. Conn. 2013)], following the logic of [Cent. Bank of Denver, N.A. v. First 27 Interstate Bank of Denver, N.A., 511 U.S. 164 (1994)], that the civil remedy provision 28 1 of [§ 2255] does not permit claims for secondary or vicarious liability.”), aff’d sub 2 nom. Doe v. Fort Zumwalt R-II Sch. Dist., 920 F.3d 1184 (8th Cir. 2019). 3 Although some courts have found that secondary liability may attach under 4 § 2255, they did so with respect to aiding and abetting—which requires intentionally 5 helping the tortfeasor—rather than vicarious liability. See United States v. Garcia, 6 400 F.3d 816, 820 (9th Cir. 2005) (“Aiding and abetting is not a separate and distinct 7 offense from the underlying substantive crime, but is a different theory of liability for 8 the same offense.”). E.M. argues that USASF aided and abetted Miller when Miller 9 “was employed at two separate USASF certified gyms during the time he was abusing 10 Plaintiff.” (Opp’n USASF Mot. 6–7 (citing FAC ¶¶ 162–87).) However, E.M. does 11 not allege any facts supporting the contention that USASF had knowledge of Miller’s 12 conduct, or knowledge that he posed a danger to E.M. until years after the incident 13 occurred. In fact, E.M. does allege that USASF first learned of the incident in 2021, 14 over a decade after the alleged misconduct took place. (FAC ¶¶ 186–87.) Therefore, 15 the allegations are insufficient to extend § 2255 liability to USASF under the theory 16 that it “aided and abetted” Miller to commit a violation of § 2422. Accordingly, as 17 § 2255 does not permit vicarious liability and there are no factual allegations that 18 USASF directly violated a criminal statute enumerated in § 2255, the Court grants 19 USASF’s motion to dismiss USASF’s first cause of action. Because the Court finds 20 that amendment would be futile, the dismissal is without leave to amend. 21 B. Gross Negligence 22 USASF next argues that E.M.’s gross negligence claim fails because E.M. does 23 not adequately allege that USASF owed her a duty of care or that USASF breached 24 that duty. The existence and scope of a defendant’s duty are questions of law. Achay 25 v. Huntington Beach Union High Sch. Dist., 80 Cal. App. 5th 528, 535 (2019). 26 California law generally maintains that, although “there is no duty to act to protect 27 others from the conduct of third parties,” there are certain exceptions that can create a 28 1 duty even where a third party causes the plaintiff harm. Delgado v. Trax Bar & Grill, 2 36 Cal. 4th 224, 235 (2005). 3 One of these exceptions—the special relationship doctrine—can exist when the 4 relationship between the defendant and the victim “has an aspect of dependency in 5 which one party relies to some degree on the other for protection.” Regents of Univ. 6 of Cal. v. Superior Ct., 4 Cal. 5th 607, 620 (2018). “The corollary of dependence in a 7 special relationship is control. Whereas one party is dependent, the other has superior 8 control over the means of protection.” Id. at 621. “Relationships between parents and 9 children, colleges and students, employers and employees, common carriers and 10 passengers, and innkeepers and guests, are all examples of special relationships that 11 give rise to an affirmative duty to protect.” Brown v. USA Taekwondo, 11 Cal. 5th 12 204, 216 (2021). 13 Here, through her reliance on USASF, E.M. “[was] particularly vulnerable and 14 dependent upon the defendant who, correspondingly, ha[d] some control over the 15 plaintiff’s welfare.” Regents of Univ. of Cal., 4 Cal. 5th at 621 (quoting Giraldo v. 16 Dep’t of Corr. & Rehab., 168 Cal. App. 4th 231, 245–46 (2008)). USASF was 17 responsible for vetting and credentialing the cheer coaches who were then permitted to 18 be unsupervised with minor athletes. USASF also created the “USASF Certified” 19 program, which provided a seal to “certified” coaches that had been duly vetted and 20 met USASF’s highest standards regarding safety practices and prevention of minor 21 child abuse. (FAC ¶ 67.) Therefore, USASF—who purports to create and foster a 22 safe and secure environment for its athletes to practice and compete—therefore enjoys 23 a special relationship with the plaintiff. E.M. sufficiently alleges that USASF owes a 24 duty of care to its minor athletes, including E.M. 25 E.M. also pleads that USASF breached that duty by failing to follow a 26 prescribed set of regulatory policies that were aimed to keep athletes healthy and safe. 27 (See, e.g., FAC ¶¶ 94–106.) Among other instances, these failures include USASF’s 28 “refus[al] or fail[ure] to report non-member coaches and adults accused of misconduct 1 to law enforcement—contravening its representation that USASF and its members are 2 mandatory reporters.” (Id. ¶ 97.) Accordingly, the Court finds that E.M. sufficiently 3 pleads the challenged elements of the claim for gross negligence and denies USASF’s 4 motion to dismiss E.M.’s second cause of action as to USASF. 5 C. Negligent Supervision 6 USASF moves next to dismiss E.M.’s third cause of action for negligent 7 supervision. “To establish negligent supervision, a plaintiff must show that a person 8 in a supervisorial position over the actor had prior knowledge of the actor’s propensity 9 to do the bad act.” Z.V. v. County of Riverside, 238 Cal. App. 4th 889, 902 (2015). 10 To state a claim for negligent supervision, a plaintiff “must allege facts that, if proven, 11 would show that [the defendant] exercised significant control over [the employee] and 12 that ‘exercise of retained control affirmatively contributed to the employee’s 13 injuries.’” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 684 (9th Cir. 2009) (first 14 emphasis added) (quoting Hooker v. Dep’t of Transp., 27 Cal. 4th 198 (2002)). 15 Here, E.M. does not sufficiently show that USASF and Miller shared an 16 employment relationship, or that USASF exercised significant control over Miller. 17 USASF did not make the decision to hire Miller, (see FAC ¶ 1 (alleging that 18 Defendants CheerForce, Becky Herrera, and Shawn Herrera “employed Defendant 19 Shawn Miller as a cheer coach”)), nor does E.M. plead facts that establish USASF’s 20 maintained a day-to-day supervisory position over Miller. That supervisory role was 21 held by the cheer gym where Miller worked and was employed. Based on the facts 22 contained in the FAC, USASF had little or no oversight over Miller’s coaching 23 sessions. Similarly, E.M. does not plead facts that lead to the reasonable inference 24 that USASF had prior knowledge of Miller’s alleged misconduct or that USASF 25 should have foreseen it. Although E.M. pleads, in a conclusory fashion, that 26 “Defendant USASF . . . knew or had reason to know Defendant Miller, Defendant 27 Cheer[F]orce, and Defendants Becky and Shawn Herrera had engaged in significant 28 misconduct and abuse involving USASF-member minor athletes,” (FAC ¶ 10), there 1 are no facts pleaded in the FAC that support that conclusion or indicate how USASF 2 would have known of that misconduct until E.M. reported it over a decade after the 3 incident occurred. Accordingly, without significant control or foreseeability on the 4 part of USASF, the Court finds that E.M. does not sufficiently plead a claim of 5 negligent supervision against USASF. The Court grants USASF’s motion to dismiss 6 E.M.’s third cause of action for negligent supervision as to USASF with leave to 7 amend. 8 D. Breach of Contract 9 USASF next moves to dismiss E.M.’s claim for breach of contract because she 10 has failed to show “that a valid contract existed between Plaintiff and USASF.” 11 (USASF Mot. 9.) However, under California law, membership policies can constitute 12 a valid contract between parties. See Hernandez v. AFSCME Cal., 424 F. Supp. 3d 13 912, 922–23 (E.D. Cal. 2019) (“Plaintiffs argue that their membership agreements are 14 not valid contracts . . . . The court disagrees.”), aff’d, 854 F. App’x 923 (9th Cir. 15 2021). 16 “[T]he formation of a contract requires a bargain in which there is a 17 manifestation of mutual assent to the exchange and a consideration.” Restatement 18 (Second) of Contracts § 17. “Mutual assent may be manifested by written or spoken 19 words, or by conduct.” Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 20 2014). E.M. alleges that she joined USASF’s membership, paid membership dues, 21 and enjoyed the benefits associated with membership. (See, e.g., FAC ¶ 205 (“At all 22 times relevant to this complaint, Plaintiff was a member of USASF, and paid dues, 23 fees, and other valuable consideration associated with this membership.”).) Under the 24 terms of their agreement, E.M. alleges that USASF, 25 (a) promulgated and/or enforced rules governing competitive cheer coaching, competitive cheer training, cheer camps and competitions 26 throughout the United States; (b) organized, promoted, produced, and/or 27 managed cheer camps, clinics, and competitions throughout the United 28 States and furthered the goals and purposes of the conspiracy and conduct set forth herein; (c) established guidelines and assessed whether 1 to certify gyms, coaches, and vendors, including without limitation those 2 named herein, as members of USASF, and to otherwise provide 3 “credentials” for these coaches, vendors, and affiliates; and (d) required that athletes, coaches, vendors purchase annual memberships with 4 Defendant USASF and in order to participate in the Varsity Defendants’ 5 sanctioned events, and to access USASF member minor athletes. 6 (Id. ¶ 28; see also id. ¶ 33.) Through its membership agreement, USASF agreed to 7 provide its minor participants with a safe and positive environment in which to 8 practice and compete. 9 E.M. further alleges that USASF created a Professional Responsibility Code 10 (“Code”), which applied to all members. (Id. ¶ 78.) The Code recognized USASF’s 11 role in protecting minor participants.4 (Id. ¶ 79.) E.M. alleges that USASF breached 12 its agreement with E.M. by failing to provide her with a safe and secure environment. 13 Specifically, E.M. alleges that USASF did so by “failing to enforce the policies, 14 procedures, and standards expressly adopted by Defendant USASF related to 15 credentialed coaches and adult members.” (Id. ¶ 253.) For example, USASF “refused 16 or failed to report non-member coaches and adults accused of misconduct to law 17 enforcement—contravening its representation that USASF and its members are 18 mandatory reporters.” (Id. ¶ 97.) Accordingly, E.M. sufficiently pleads the 19 challenged elements for breach of contract, and the Court denies USASF’s motion to 20 dismiss E.M.’s fifth cause of action for breach of contract as to USASF. 21 E. Fraud 22 Next, USASF moves to dismiss E.M.’s seventh cause of action for fraud 23 because E.M. “fails to state an underlying tort for which USASF would be liable.” 24 (USASF Mot. 9–11.) A claim for fraud requires “(a) misrepresentation (false 25 4 In addition to creating a process by which athletes could report misconduct, the Code expressly 26 recognized the risks and dangers associated with a minor athlete-coach relationship. For example, the Code states, “Once a coach-Athlete relationship is established, a Power imbalance is presumed to 27 exist throughout the coach-Athlete relationship (regardless of age) and is presumed to continue for 28 Minor Athletes after the coach-Athlete relationship terminates until the Athlete reaches 20 years of age.” (FAC ¶ 80.) 1 representation, concealment, or nondisclosure); (b) knowledge of falsity (or 2 ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and 3 (e) resulting damage.” Small v. Fritz Cos., Inc., 30 Cal. 4th 167, 173 (2003) (quoting 4 Lazar v. Superior Ct., 12 Cal. 4th 631, 638 (1996)). In alleging fraud, Rule 9(b) 5 requires a party to state with particularity the circumstances constituting fraud, 6 including the “who, what, when, where, and how” of the misconduct charged. Ebeid 7 ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010); see also Fed. R. 8 Civ. P. 9(b). 9 To support her claim for fraud, E.M. cites two alleged misrepresentations: 10 “Certifying to Plaintiff that Defendants were responsible for providing safe 11 competitive and training environments” and “Certifying to Plaintiff and her family 12 that the adults involved in the gyms, and competitions, including choreographers, had 13 been duly vetted.” (FAC ¶ 272.) These statements fall short for at least two reasons: 14 knowledge of falsity and justifiable reliance. 15 First, with the exception of claims for negligent misrepresentation, “knowledge 16 of falsity,” or scienter, is an element of fraud. OCM Principal Opportunities Fund, 17 L.P. v. CIBC World Mkts. Corp., 157 Cal. App. 4th 835, 862–63 (2007). Not only 18 does E.M. fail to plead the falsity of these two general statements, E.M. does not plead 19 facts that support USASF’s actual knowledge of falsity. 20 Second, to establish the element of justifiable reliance, “plaintiffs must show 21 (1) that they actually relied on the defendant’s misrepresentations, and (2) that they 22 were reasonable in doing so.” OCM Principal Opportunities Fund, 157 Cal. App. 4th 23 at 863. “A plaintiff asserting fraud by misrepresentation is obliged to plead and prove 24 actual reliance, that is, to ‘establish a complete causal relationship’ between the 25 alleged misrepresentations and the harm claimed to have resulted therefrom.” Id. 26 at 864 (internal quotation marks omitted) (quoting Mirkin v. Wasserman, 5 Cal. 4th 27 1082, 1092 (1993)). Here, E.M. fails to plead that she actually relied on the alleged 28 misrepresentations, and there are no facts indicating these two representations played 1 a substantial factor in E.M.’s participation in cheer. See Conroy v. Regents of Univ. of 2 Cal., 45 Cal. 4th 1244, 1256 (2009) (“It is not . . . necessary that [a plaintiff’s] reliance 3 upon the truth of the fraudulent misrepresentations be the sole or even the 4 predominant or decisive factor in influencing his conduct . . . . It is enough that the 5 representation has played a substantial part, and so has been a substantial factor, in 6 influencing his decision.” (alteration in original) (internal quotation marks omitted) 7 (quoting Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 976–77 (1997))). 8 Accordingly, E.M.’s claim for fraud falls short based on the identified alleged 9 misrepresentations. E.M.’s remaining allegations of USASF’s fraudulent misconduct, 10 (FAC ¶ 272(c)–(h)), do not constitute “misrepresentations” for the purposes of fraud. 11 For example, “[f]acilitating an unchaperoned environment for child-athletes,” (FAC 12 ¶ 272(d)), is not a “positive assertion” made to E.M. by USASF. Diediker v. Peelle 13 Fin. Corp., 60 Cal. App. 4th 288, 297 (1997) (quoting Wilson v. Century 21 Great W. 14 Realty, 15 Cal. App. 4th 298, 306 (1993)). Therefore, the Court grants USASF’s 15 motion to dismiss E.M.’s seventh cause of action as to USASF with leave to amend. 16 F. Negligent Security 17 USASF next moves to dismiss E.M.’s eighth cause of action for negligent 18 security. (USASF Mot. 12–13.) This claim against USASF fails for many of the 19 same reasons as E.M.’s claims for negligent supervision and gross negligence 20 discussed above. Negligent security claims—which are commonly brought against 21 landowners and security companies—are based on “the duty to take reasonable steps 22 to secure common areas against foreseeable criminal acts of third parties that are 23 likely to occur in the absence of such precautionary measures.” Sharon P. v. Arman, 24 Ltd., 21 Cal. 4th 1181, 1189 (1999). An affirmative action to control the acts of a 25 third party “will be imposed only where such conduct can be reasonably anticipated,” 26 with foreseeability being a “‘crucial factor’ in determining the existence of duty.” Id. 27 (quoting Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal. 4th 666, 676 (1993)). 28 1 Here, as discussed previously, E.M. has failed to plead any facts showing that 2 USASF would have reasonably foreseen that Miller would have engaged in the 3 alleged misconduct. There are no facts indicating that Miller had any reported history 4 of abuse in the past, nor did E.M. plead any other facts that would have made it 5 reasonable for USASF to foresee Miller’s misconduct. See Sharon P., 21 Cal. 4th 6 at 1199 (“[A]bsent any prior similar incidents or other indications of a reasonably 7 foreseeable risk of violent criminal assaults in that location, we cannot conclude 8 defendants were required to secure the area against such crime.”). Accordingly, the 9 Court grants USASF’s motion to dismiss E.M.’s eighth cause of action for negligent 10 security as to USASF. Because the Court finds that amendment would be futile, the 11 dismissal is without leave to amend. 12 G. Civil Conspiracy 13 Next, turning to E.M.’s claim for civil conspiracy—as discussed with respect to 14 Miller’s motion to dismiss above—there is no separate tort of civil conspiracy, but it 15 rather serves as a theory of liability. Richard B. LeVine, Inc. v. Higashi, 131 Cal. 16 App. 4th 566, 574 (2005). Civil conspiracy requires that “each member of the 17 conspiracy acted in concert and came to a mutual understanding to accomplish a 18 common and unlawful plan, and that one or more of them committed an overt act to 19 further it.” Choate, 86 Cal. App. 4th at 333. Here, E.M. falls short of pleading a 20 prima facie case of civil conspiracy by failing to establish the existence of “a common 21 and unlawful plan,” id., or that USASF “had knowledge of and agreed to both the 22 objective and the course of action that resulted in the injury,” Berg & Berg Enters., 23 131 Cal. App. 4th at 823. Accordingly, the Court grants USASF’s motion to dismiss 24 E.M’s ninth cause of action for civil conspiracy as to USASF with leave to amend. 25 H. Respondeat Superior 26 USASF next moves to dismiss E.M.’s theory of respondeat superior because, 27 “[w]hen a trial court dismisses the predicate claims on which a plaintiff’s theory of 28 vicarious liability is based, it follows ‘as a matter of law, . . . there is no underlying 1 tort from which respondeat superior liability can flow.’” (USASF Mot. 14.) 2 Although USASF’s contention of law is correct, the Court here has not dismissed all 3 predicate claims on which E.M. alleges that her theory of vicarious liability is based. 4 As this is the only argument for relief brought forth by USASF, the Court denies its 5 motion to dismiss tenth cause of action for respondeat superior as to USASF. 6 I. Intentional Infliction of Emotional Distress 7 Moving to dismiss E.M.’s eleventh cause of action for IIED, USASF argues 8 that E.M. “fails to plead any facts supporting the contention that USASF proximately 9 caused any injury to Plaintiff,” “fails to plead that USASF intended to cause 10 emotional distress, or knew or should have known that its conduct would result in 11 serious emotional distress to Plaintiff,” and “fails to meet the federal pleading 12 standard because [the FAC] does not plead any facts ‘demonstrating the nature, extent 13 or duration of [Plaintiff’s] alleged emotional distress.’” (USASF Mot. 14–15 (second 14 alteration in original) (quoting Angie M. v. Superior Ct., 37 Cal. App. 4th 1217, 1227 15 (1995)).) The Court addresses each of USASF’s arguments in turn. 16 Here, under the presented facts, the Court recognizes two methods by which 17 E.M. sufficiently alleges that USASF tortiously caused her emotional distress. First, 18 USASF failed to provide a safe and secure space for its minor athletes to practice and 19 compete. To this point, E.M. alleges that USASF did not sufficiently supervise the 20 coaches and gyms with which its members practiced and competed. When combined 21 with USASF’s awareness of the “power imbalance” in the coach-athlete relationship, 22 (see FAC ¶ 80), these allegations impute on USASF the knowledge that a failure 23 could result in the infliction of emotional distress as to an athlete. Second, when E.M. 24 reported Miller’s misconduct to USASF, the investigative process was “deeply 25 traumatizing and unsettling.” (Id. ¶ 188.) Throughout the reporting process, E.M. 26 “experienced bullying, skepticism, dismissiveness, and a general lack of belief.” (Id. 27 ¶ 189.) It is entirely plausible that these allegations—if true—could be considered “so 28 ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’” 1 Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009) (quoting Potter v. Firestone Tire & 2 Rubber Co., 6 Cal. 4th 965, 1001 (1993)). 3 Furthermore, the Court rejects USASF’s argument that E.M. fails to allege 4 sufficient facts to establish that she suffered severe emotional distress. E.M. alleges 5 that she “began experiencing severe depression, anxiety and panic attacks.” (Id. 6 ¶ 184.) She also developed an eating disorder and a substance abuse disorder. (Id.) 7 Later, when E.M. returned to the same gym where the sexual abuse occurred, E.M. 8 began experiencing severe symptoms associated with complex post-traumatic stress 9 disorder. (Id. ¶ 186.) The Court finds these alleged injuries sufficient to constitute 10 emotional distress. See Fletcher v. W. Nat’l Life Ins. Co., 10 Cal. App. 3d 376, 397 11 (1970) (“Severe emotional distress [is] of such substantial quantity or enduring quality 12 that no reasonable man in a civilized society should be expected to endure it.”). 13 Accordingly, as E.M. sufficiently pleads the challenged elements of IIED, the Court 14 denies USASF’s motion to dismiss E.M.’s eleventh cause of action for IIED as to 15 USASF. 16 J. California Consumers Legal Remedies Act, Cal. Civ. Code § 1770 17 Finally, USASF argues that the Court should dismiss E.M.’s CLRA claim— 18 which seeks compensatory and punitive damages—because the Act’s remedy is 19 limited to restitution. (USASF Mot. 15–16 (“[R]estitution is the sole recoverable 20 form of damages under the CLRA.”).) 21 Section 1780(a) of CLRA states “[a]ny consumer who suffers any damage as a 22 result of the use or employment by any person of a method, act, or practice declared to 23 be unlawful by section 1770 may bring an action against that person to recover or 24 obtain any of the following: (1) Actual damages . . . .” Cal. Civ. Code § 1780(a). 25 “The statute authorizes a plaintiff to recover actual damages.” Konik v. Time Warner 26 Cable, No. 2:07-cv-763-SVW (RZx), 2010 WL 11549435, at *5 (C.D. Cal. July 19, 27 2010). Accordingly, because CLRA permits the recovery of damages, the Court 28 denies USASF’s motion to dismiss E.M.’s twelfth cause of action as to USASF. 1 VI. CONCLUSION 2 For the reasons discussed above, the Court GRANTS IN PART and DENIES 3 || IN PART Miller’s Motion to Dismiss. (ECF No. 161.) Specifically, as to Miller, the Court DISMISSES E.M.’s ninth cause of action for civil conspiracy. The Court denies Miller’s motion to dismiss E.M.’s first (18 U.S.C. § 2255), second (gross 6 || negligence), fourth (assault and battery), and eleventh (IIED) causes of action. 7 Furthermore, the Court GRANTS IN PART and DENIES IN PART USASF’s 8 | Motion to Dismiss. (ECF 155.) Specifically, as to USASF, the Court 9 || DISMISSES E.M.’s first (18 U.S.C. § 2255), third (negligent supervision), seventh 10 || (fraud), eighth (negligent security), and ninth (civil conspiracy) causes of action. The 11 | Court denies USASF’s motion to dismiss E.M.’s second (gross negligence), fifth 12 || (breach of contract), tenth (respondeat superior), eleventh (ITED), and twelfth (Cal. 13 || Civ. Code § 1770) causes of action. 14 The Court provides E.M. leave to amend its third, seventh, and ninth cause of 15 || action to remedy the deficiencies detailed above. If E.M. elects to amend, the Second 16 || Amended Complaint is due no later than twenty-one (21) days from the date of this 17 || Order, in which case Defendants should answer or otherwise respond within fourteen 18 || (14) days of E.M.’s filing of the Second Amended Complaint. If E.M. does not 19 || timely amend, the dismissal of the third, seventh, and ninth causes of action shall be 20 || deemed a dismissal with prejudice as of the lapse of the deadline to amend, and Miller 21 | and USASF shall answer the First Amended Complaint, as modified herein, within 22 || fourteen (14) days of the lapsed deadline. 23 24 IT IS SO ORDERED. 25 26 May 31, 2024 Nes. 27 tel 28 OTIS D. IGHT, I

UNITED STATES DISTRICT JUDGE