It is intriguing that when the topic here is the sexual abuse of children that some would like to silence or restrict that!!!
Why is that?
Pedophilia and sexual abuse of children in AustraliaThe Problems  |  The Solutions  |  Make a Submission  |  Petition  |  Statistics  |  International  |  Historical
 Site map   Johnb Print Friendly Email to a Friend

  Home :: 2008 December :: Franciscans are a Public Nuisance for letting children be raped over decades, says Santa Barbara lawsuit, which could work in o

Saturday, December 13, 2008

Franciscansare a Public Nuisance for letting children be raped over decades, saysSanta Barbara lawsuit, which could work in other states as well

*
By Kay Ebeling


With 24 perpetrators and 59children assaulted in one town, the Franciscans constitute a publicnuisance against the entire community, reads a lawsuit progressingtowards pre-trial hearings in Santa Barbara.

There is no SOL onthese charges. "Because the cause of action is based on conduct that isa continuing Public Nuisance, it is not subject to any statute oflimitations set forth in 340.1," the lawsuit states.

Churchattorneys tried to get the Santa Barbara public nuisance case moved toLos Angeles, but Judge Emilie Elias quickly turned them down. NowJanuary 15, 2009, the Superior Court in SB will hear arguments on thechurch's motion to strike major portions of the original complaint.Plaintiffs come armed with decades of evidence, as shown in the briefcopy and pasted in full below.

Other states have publicnuisance law, including Illinois, where I was raped at age five byFather Horne. In FindLaw is news of an Illinois Supreme Court decisionstriking down public nuisance cases against the gun industry, and Justice Rita Garman appears to leave the door wide open for pedophile clergy lawsuits against the Chicago Archdiocese, which would include my case.

JusticeGarman wrote that guns in a neighborhood do not affect the entirecommunity the same way “offensive conduct emanating from a ‘bawdyhouse’- would affect all equally." With priests raping altar boys insacristies, and priests teaching girls to talk dirty in FirstConfession, and volumes of other charges, the Archdiocese of Chicago isripe for a public nuisance lawsuit.

No SOL when the 'bawdy behavior' and its after effects are still going on.

Thebrief filed for the plaintiffs in Santa Barbara reads almost like anarticle in the New Yorker or Vanity Fair in its narrative parts. It isa public document, so here for a Sunday read below in its entirety isthe Opposition to Demurrer and Motion to Strike the First AmendedComplaint, by Timothy Hale of Nye, Peabody, Stirling, & Hale.

Emailthis story to every lawyer you know, and maybe public nuisance suitsare the way we can get the public to see these felons disguised as holymen for who they really are. Here is Tim’s brief:

(To see related First Amended Complaint go to Sept. 22, 2008, post here at City of Angels.)

I. INTRODUCTION

A- Half of the truth may obviously amount to a lie, if it is understoodto be the whole. Prosser & Keeton, The Law of Torts (5th ed. 1984)Misrepresentation and Nondisclosure, ' 106, p. 738 (italics added).

Fordecades the Franciscan Friars have told half-truths to the communitiesin which they perform their ministry, and in doing so have lied. In nocommunity has the lie been greater, or been the source of more tragedy,than Santa Barbara.

Since their Provinces creation on January19, 1916, the Franciscans have invited the community into theirmissions, parishes and schools, and sent their Franciscans out into thecommunity. Each of those Franciscans have born the title of RomanCatholic AFather@ or ABrother.@ Each has worn the garb immediatelyidentifying his status, sometimes the brown robes of the Franciscanorder, sometimes the white collar identifying the wearer as a priest.

Inherentin each of these titles and garb is the unequivocal Franciscan messageto the community that the individual is honest, trustworthy, andperhaps even the voice of god. Each Franciscan has enjoyed anundeniable presumption of goodness as a result.

Unfortunately,in the case of at least 25 of these men, these titles and garbexpressed half-truths that in reality were lies being told by theFranciscans - the perpetrators’ employers - to the community. Whilethese men were priests and brothers, the Franciscans learned long agothey were also criminals, wolves in sheep=s clothing. Or in this case,pedophiles held out to the community as trustworthy Roman CatholicPriests and brothers of the highest character, a secret Defendantsstill fight to preserve.

The results of Defendants’ lies havebeen undeniably horrific. With the community justifiably assuming thesetitles and garb have stated the whole truth about each Franciscan'sbackground and character, 25 perpetrators have exploited thepresumption of goodness they enjoy in their capacities as priests orbrothers in Defendants’ employ.

This presumption has allowedthem to prey upon at least 59 children in Santa Barbara since 1964,with countless children abused by Franciscans in other communities aswell. Despite this overwhelming evidence of the harm caused by theircontinuing conduct, Defendants refuse to change their ways, and in factfight to preserve them. Plaintiff seeks such change through thislawsuit.

Defendants’ demurrer alleges that Plaintiff=s action was not filed within the applicable statute of limitations.

Inthis regard, Defendants argue that neither the statutory delayedaccrual provision housed within Code of Civil Procedure ' 340.1(a)(2),nor the equitable delayed discovery doctrine determines the accrualdate of Plaintiff=s action, arguing instead that Plaintiff was requiredto file her action prior to her 19th birthday, notwithstanding that shehad no understanding of the wrongfulness of the conduct at that time,and no facts within her knowledge that could have led her to believethat she had a cause of action.

Defendants ignore the fact thecauses of action for Public Nuisance and Unfair Competition (AUCL@),and the claims premised on the 2007 fraud allegations, are subject todistinct statutes of limitation. Finally, Defendants challengePlaintiff=s individual causes of action, and seek to strike the factualallegations that support the Public Nuisance and UCL causes of action.

Forthe reasons discussed herein, Defendants’ positions are unsupportable,and the demurrer and motion to strike must be overruled.

II. STANDARD OF REVIEW

Ademurrer tests the sufficiency of a complaint as a matter of law.Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958. Inruling on a demurrer, all material facts pleaded in the complaint andthose that arise by reasonable implication are deemed admitted. Wilner,78 Cal.App.4th at 958. The complaint must be liberally construed,drawing reasonable inferences from the facts. See Wilner, 78Cal.App.4th at 958. A>A demurrer on the ground of the bar of thestatute of limitations will not lie where the action may be, but is notnecessarily barred.=@ Lockley v. Law Office of Cantrell et al. (2001)91 Cal.App.4th 875, 881. A[I]t is error for a . . . court to sustain ademurrer when the plaintiff has stated a cause of action under anypossible legal theory.@ Fox v. Ethicon (2005) 35 Cal.4th 797, 810.


III. THE LAW OF PUBLIC NUISANCE

Sinceat least the early 1960s, and most likely much earlier, the Franciscanshave ignored the civil and criminal law, and essentially followed theirown standards when dealing with their child-abusing employees.

Plaintiff'scounsel are aware of only one instance where a Franciscan has reportedanother child-abusing Franciscan to law enforcement, and even in thatcase the report did not take place until approximately thirty yearsafter the fact, long past the expiration of the criminal statute oflimitations.

Equity must end the horrific public nuisancecreated by the Franciscans. For decades the Franciscans have imposed oncommunities the Franciscans’ standards of conduct regarding theprotection of children. The results have been and continue to betragic. And despite such an outcome the Franciscans refuse to changetheir ways.

Simply pupt, they must be stopped.

*****************
Simply put, they must be stopped.
*********************************

A- The very concept of ordered liberty precludes allowing every person[or in this case, corporation] to make his own standards on matters ofconduct in which society as a whole has important interests. People exrel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1102 (quoting Wisconsin v.Yoder (1972) 406 U.S. 205, 215-216).

"In the public nuisancecontext, the community's right to security and protection must bereconciled with the individual's right to expressive and associativefreedom. . . . the security and protection of the community is thebedrock on which the superstructure of individual liberty rests." Id.

Aprincipal office of the centuries-old doctrine of the public nuisancehas been the maintenance of public order-tranquillity, security andprotection-when the criminal law proves inadequate.@ Id. at 1103.

Nowherehas the criminal law proven more inadequate than in the communitieswhere the Franciscans continue to conceal perpetrators, particularly inSanta Barbara where all but 2 of 25 Franciscan perpetrators haveescaped criminal prosecution despite assaulting at least 60 SantaBarbara children since 1936.

***************
The public nuisance doctrine is aimed at the protection and redress of community interests
*****************************


Unlikethe private nuisance- tied to and designed to vindicate individualownership interests in land - the >common= or public nuisanceemerged from distinctly different historical origins. The publicnuisance doctrine is aimed at the protection and redress of communityinterests . . .." Id. at 1103. There can be no question that theprotection of children from childhood sexual abuse is one of the mostrecognized community interests in California. See First AmendedComplaint (AFAC@), page 14.

California definesnuisance as anything that is Ainjurious to health, ... or is indecentor offensive to the senses, or an obstruction to the free use ofproperty, so as to interfere with the comfortable enjoyment of life orproperty, or unlawfully obstructs the free passage or use, in thecustomary manner, of any navigable lake, or river, bay, stream, canal,or basin, or any public park, square, street, or highway.@ Civ.Code, '3479. Civil Code sections 3480 and 3481 divide the class of nuisancesinto public and private.


A publicnuisance is one which Aaffects at the same time an entire community orneighborhood, or any considerable number of persons.@ (Civ.Code, '3480.) Rounding out the taxonomy of the Civil Code, section 3491provides that A[t]he remedies against a public nuisance are: [] 1.Indictment or information; [] 2. A civil action; or, [] 3. Abatement.@Acuna, 14 Cal.4th at 1104.

"To qualify, and thus be enjoinable,the interference must be both substantial and unreasonable." Id. at1105. A[T]he question is not whether the particular plaintiff found theinvasion unreasonable, but >whether reasonable persons generally,looking at the whole situation impartially and objectively, wouldconsider it unreasonable.= @ Id.


Plaintiff's counsel has identified 24 Franciscan perpetrators and 59 Santa Barbara children victimized just since 1960.

The Franciscans recently admitted those numbers
actuallyare higher (again without providing the public with any informationabout the identities or current whereabouts of the 27 perpetrators towhich they now admit).

Plaintiff respectfully submits noreasonable person could find anything remotely reasonable about thesenumbers, or about the continuing pattern of Franciscan conduct thatresulted in these numbers.

A. Defendants’ Duty Argument Is Unsupportable

Accordingto the Franciscans, they have no duty to warn a community if theyreceive reports of abuse regarding one of their employees, subsequentlyallow him to hold titles and wear garb that inherently convey to allwho encounter him that, at the least, he is trustworthy and of goodcharacter, and then assign him job duties requiring communityinteraction that inevitably results in contact with children.

Similarly,according to the Franciscans, they have no duty to warn anyone if theyreceived a report of abuse by one of their employees, helped him evadeconviction and having to register as a sex offender by either notreporting his crimes to law enforcement or doing so only after hiscriminal statute of limitations had expired, and then allowed him toleave their employ to work in communities who have no clue as to hiscriminal propensities because he has never had to register as a sexoffender, and has no criminal record.

*************
Repeat: Similarly,according to the Franciscans, they have no duty to warn anyone if theyreceived a report of abuse by one of their employees
*****************************


Inaddition to being outrageous, not to mention illustrative of theFranciscan mentality that both has resulted in this tragedy and drivesthe conduct that is a continuing public nuisance, these arguments arecontrary to the law, and to the compelling state interest in preventingchildhood sexual abuse.

The Franciscans find no support fortheir "no duty" argument in the authority they cite. None of thosecases contain facts like those found herein: an employee accused ofabuse who not only is allowed to continue in his employment, but, aspart of his job duties, is allowed to enter into a community or tointeract with community members while having job titles and wearinggarb that inherently communicate to each person he encounters, whetherthey are Catholic or otherwise, that he is trustworthy and of goodcharacter.

Defendants cite two cases for thisrepugnant proposition, Thompson v. County of Alameda (1980) 27 Cal.3d741 and Eric J. v. Betty M. (1999) 76 Cal.App.4th 715. Defendants’attempt to analogize themselves to the defendants in these two lawsuitsfail miserably. In Thompson, the defendant was a county that paroled aconvicted offender who was a threat to young children. In Eric J., thedefendants were family members who knew their relative was convictedchild abuser but did not warn his girlfriend or her young son. UnlikeDefendants herein, neither the county nor the family members helped theperpetrators in Thompson or Eric J. escape criminal prosecution, andavoid registration as sex offenders. Also unlike Defendants herein,neither the county nor the family members hired or continued to employthe perpetrators, assigning them job titles or uniforms that wouldconvey trustworthiness to the communities in which they worked. Andneither the county nor the family members then sent the perpetratorsout into the community, or invited the community to their place ofbusiness where they employed the perpetrators, all in furtherance oftheir business interests. These distinctions render Thompson and EricJ. inapplicable to the facts of this lawsuit.


Defendantsnext claim notification to the community is unworkable. There isnothing unworkable about notifying the administration of local parishesand schools in the community where an accused is assigned, nor aboutnotifying local media. Obviously, law enforcement must be notified.

Andthere now are online databases that can be notified, such as bishopaccountability dot org, that childcare custodians can look to determineif a priest or brother has been accused of abuse. The time has longsince passed for communities to submit to the Franciscans' insistencethat they be allowed to handle such matters internally.

Sixty victims later inSanta Barbara alone, it is clear that approach has failed miserably.And yet that is exactly the status quo the Franciscans seek to preserve.

Agreater degree of care is owed to children because of their lack ofcapacity to appreciate risks and avoid danger.@ Juarez v. Boy Scouts(2000) 81 Cal.App.4th 377, 410. Generally, a person has no duty tocontrol the conduct of a third person, nor to warn those endangered bysuch conduct, in the absence of a special relationship either to thethird person or to the victim. Tarasoff v. Regents of University ofCalifornia, 17 Cal.3d 425, 435. However, an exception to this ruleexists where the defendant, through his or her own action creates aforeseeable risk of harm from the third person. Under thosecircumstances the question of duty is governed by the standards ofordinary care. Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209;Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 530.Additionally, A[a] duty may be based on the general character of theactivity engaged in by the defendant.@ Bastian, 199 Cal.App.3d at 530.


Here,although not necessary to create a duty, there can be no questionDefendants were in a special relationship with the perpetrators givingrise to a duty as they employed the perpetrators, sent them fortreatment for pedophilia, and sent them out into communities with jobtitles and garb communicating the perpetrators were of the highestcharacter.

****************
Defendants employedthe perpetrators in the utmost positions of trust, and allowed them towork with children. As a result it was and is foreseeable that theperpetrators would abuse children
****************************************


Determiningthe existence of a tort duty requires consideration of foreseeabilityof harm, degree of certainty of harm, the closeness of the connectionbetween the defendant's conduct and the injury, the moral blameattached to the defendant's conduct, the policy of preventing futureharm, the burden to the defendant, and the consequences of imposingliability. Rowland v. Christian (1968) 69 Cal.2d 108, 112-13. Here,there was ample notice to Defendants of the risk posed by theperpetrators, and in many cases Defendants were well aware of repeatoffenses by the same perpetrator.

Similarly, Defendants employed theperpetrators in the utmost positions of trust, and allowed them to workwith children. As a result it was and is foreseeable that theperpetrators would abuse children, and that members of the communitieswhere the Defendants conduct their business would lose the ability toleave their children unsupervised anywhere Defendants’ employees arepresent.

There can be no question ofcertainty of harm, connection between the conduct and the injury, andthe moral blame that flows from Defendants’ conduct, nor of thecompelling state interest in preventing child abuse. And Defendants’only burden would be ending their timeless policy of secrecy, a burdenthat crumbles under the weight of the compelling state interest inpreventing child abuse.

As to the consequences of imposingliability, they are far outweighed by the cost to society of allowingDefendants’ conduct to continue.

B. Defendants’ Causation Argument Is Without Merit

Defendants’causation argument would be comical if the facts that refute it werenot so tragic. Defendants argue Plaintiff is "unable to allege anypurported abuse by a Franciscan that post dates the 1980's." DemurrerPs and As, p. 6, l. 9. This statement is false.

First, Defendants are well aware oftwo victims abused by Fr. Robert Van Handel in the 1990s. Expressallegations to this effect can be found in the complaint titled JohnF., Robert F. v. Franciscan Friars of California, Inc. et al., filed inSanta Barbara Superior Court Case No. 1164855, &&s 7, 13.

Priorto settling that lawsuit in 2006, the Franciscans were notified inwriting, repeatedly, of the dates of abuse. Hale Decl., & 4.Similarly, Defendants are also well aware that two adolescent boys weresexually abused by a Franciscan brother at the Serra Retreat House inMalibu in approximately 1993. Tang Deposition, p 155: 21 to p. 162: 22;p. 166: 15 to p. 167: 10, Hale Decl., Exh. 2.

Second,Plaintiff's FAC in fact does allege, at page 9, lines 11 20, abuse by aFranciscan earlier in this decade: Fr. Steven Kain, a former facultymember at St. Anthony's Seminary. Fr. Kain was one of 4 Franciscansaccused of childhood sexual abuse in another 1993 Santa BarbaraSuperior Court lawsuit, Larson v. Franciscan Friars of California, Inc.et al., Case No. 719033 7. In the recent coordination litigationFranciscan Fr. Xavier Harris testified he and Fr. Kain worked togetherfor a period of 2-3 years at St. Williams, a parish in Los Altos atleast as recently 2001.


Fr. Harris confirmed Fr.Kain (misspelled "Kanne" in the transcript) abused again at St.Williams, and was transferred to St. Boniface in San Francisco. HarrisDeposition, starting at pages 41:13 - 46: 3, Hale Dec., Ex. 2. Fr.Harris’ testimony made the pattern of conduct clear: Reports of abuseby Fr. Kain at St. Anthony's in Santa Barbara in 1993; transfer of Fr.Kain to St. Williams in Los Altos; no warning provided to parishionersat St. Williams; Fr. Kain sexually abuses a child at St. Williams in oraround 2001; the Franciscans transfer Fr. Kain again, to St. Bonifacein San Francisco; and again, the Franciscans provide no warning to theparishioners at his new parish. This abuse did not take place in the1980s or even the 1990s. These are relatively recent events.

****************
Defendants’ causation argument would be comical if the facts that refute it were not so tragic
**********************************


Inaddition to misinformation provided to this Court, Defendants playsemantic games in an effort to avoid responsibility for the abusecommitted in 2007 by Louis Ladenburger.

As alleged more fullystarting at page 10 of the FAC, Ladenburger pled guilty last year tosexually assaulting two children in Idaho. In the apparent belief theyno longer bear any responsibility for Ladenburger because he left theOrder in 1996, the Franciscans argue Plaintiff cannot allege abuse "bya Franciscan that post dates the 1980s."

Ladenburger wasemployed by a school in Idaho; his victims were students. Had theFranciscans acted when they first learned of his propensities in the1980s, reported Ladenburger to authorities, and warned the communitiesin which he was and had been assigned, Ladenburger would most likelyhave been a registered sex offender, and never would have been hired bythe Idaho school.

Instead, the Franciscans sent him fortreatment for his pedophilia in the 1980's, and again in the 1990's,told no one, and now disclaim any further responsibility for himbecause he left the Order in 1996. For all intents and purposes, theyset loose a ticking time bomb that exploded in 2007. One of the mainpurposes of this litigation is to force the Franciscans to disclose howmany other current or former Franciscan time bombs exist.

Finally,even if there had been no reports of abuse being committed by aFranciscan in the 1990s or the 200's, such a fact would be meaninglessto a determination of the current threat posed by current and formerFranciscan perpetrators.

**************
Ittakes most victims at least 20 years to either recover repressedmemories, or to recognize and come to terms with the wrongfulness ofthe conduct by a man they associated with god
*********************************


TheFranciscans are well aware that most victims of such abuse never comeforward, and carry their horrible secret to their grave. And when suchvictims do come forward, it is extraordinarily rare for them to do soas soon after the abuse ends as the two Ladenburger victims.

To the contrary, ittakes most victims at least 20 years to either recover repressedmemories, or to recognize and come to terms with the wrongfulness ofthe conduct by a man they associated with god, much less find thecourage to speak about their experiences.

*****************
5waited more than 30 years after the abuse ended before finding thecourage to come forward. 4 waited at least 20 years, 2 waited at least18, and two more waited 12.
*****************************


Forinstance, in the recent coordinated proceedings, of the 14 survivorsrepresented by Plaintiff's counsel who came forward between 2003 and2005, 5 waited more than 30 years after the abuse ended before findingthe courage to come forward. 4 waited at least 20 years, 2 waited atleast 18, and two more waited 12.

One other survivor who wasabused in the 1960's notified the Franciscans in the 1970s, but did notactually file a lawsuit until 2003. Hale Decl., & 7. In short, inaddition to being indisputably false, it is far too early for theFranciscans to be patting themselves on the back and claiming noFranciscans have abused children since the 1980's. The public nuisanceis continuing.

In support of their causationargument, Defendants cite In re Firearms Cases, 126 Cal.App.4th 959. Itshould be noted at the outset that Defendants’ causation argumentcannot provide the basis for sustaining a demurrer. AFacts relating tothe issue of causation is a job properly left to the trier of fact.@Bastian, 199 Cal.App.3d at 531. In fact, In re Firearms was an appealfrom an order granting a motion for summary judgment. 126 Cal.App.4that 967. Additionally, the trial court granted summary judgment afterthe plaintiffs failed to offer any factual evidence that the practicesof gun manufacturers was causally connected to the acquisition offirearms by criminals. To the contrary, plaintiffs argued in appealingthe order granting summary judgment that they were not required to linkany specific instance, of a criminal acquiring a gun, to a gunmanufacturer, and instead relied solely on Aexpert testimony based onstatistical studies of illegal gun purchases.@ In re Firearms Cases,126 Cal.App.4th at 969. The exact opposite is true in this case.


Afterten years of litigating Franciscan abuse cases, Plaintiff's counsel hasamassed nearly 7 decades worth of fact-based evidence showing thecausative link between Defendants’ conduct and the resulting harm. Thatevidence is alleged in detail in the allegations Defendants now seek tostrike from the FAC.

With at least 59 Santa Barbara childrenabused by Franciscan perpetrators since 1960, there can be no denyingthe causative link between the alleged conduct and the harm to thegeneral public in the loss of the ability to leave childrenunsupervised wherever the Franciscans conduct their business.

C. Plaintiff Has Standing To Assert A Public Nusiance Claim

Plaintiff'sFAC is unambiguous, setting forth in detail the harm to the public andthe unique harm to plaintiff giving her standing to bring a PublicNuisance claim. See FAC, paras. 14 15. Defendants take creative licenseand rewrite the allegations of Plaintiff's FAC to fit their argument.

Specifically,they incorrectly argue that Plaintiff claims the harm unique to her is"that perpetrators, in general, are dangerous to society." Paragraph 15of the FAC makes clear this is not Plaintiff's special injury.Defendants' conduct is harmful to the general public as they placeperpetrators into positions of trust, but cannot be trusted to warn thepublic of the identity of the perpetrators, thus restricting theability of the public to leave their children unsupervised anywhereDefendants conduct their business.

********************
7 decades worth of fact-based evidence
*******************************


Thespecial injuries to Plaintiff are separate and distinct: the sexualabuse she suffered, and the recent trauma she suffered, both as aresult of Defendants' conduct. These special injuries are different inkind from that suffered by the public, and thus give Plaintiff standingto file suit on behalf of the general public under the authoritiescited by Defendants.

There is more than a degree of differencebetween being sexually assaulted as a child, or being deceived andtraumatized by a misrepresentation that one was the only victim of aparticular perpetrator, and the loss of the ability of a childcarecustodian to leave their child unsupervised in any location whereDefendants are conducting their business.

Apparently recognizingtheir argument tries to fit a square peg into a round hole, Defendantsargue in the alternative that Plaintiff must allege there is an"impending threat" to her specifically. The only authority they cite, '158 of 13 Witkin, Summary of California Law, offers no support forimposing such a pleading burden, and simply confirms Plaintiff'sobligation to allege, as she has, a special injury different in kindfrom the general public's.

Finally, Defendants argument that the Public Nuisance claim "lapsed many years ago" misstates the law.

Becausethe cause of action is based on conduct that is a continuing PublicNuisance, it is not subject to any statute of limitations set forth in' 340.1.

While the abuse Plaintiff suffered is a specialinjury giving her the right to bring a Public Nuisance claim, it isDefendants' continuing pattern of conduct that governs the limitationsperiod for the cause of action. Plaintiff has alleged and will provethat the Franciscans' misconduct with regard to their perpetratorscontinues to the present day.

And it is this continuingconduct that determines the timeliness of the Public Nuisance claim."No lapse of time can legalize a public nuisance, amounting to anactual obstruction of public right." Civil Code section

3490. IV. PLAINTIFF=S LAWSUIT IS TIMELY UNDER EITHER STATUTORY OR COMMON LAW DELAYED ACCRUAL

A. The History, Purpose And Language Of Section 340.1
Section340.1 represents the Legislature=s recognition that the comprehensionof harm inflicted as a result of childhood sexual abuse can be delayedfor many years into adulthood. Curtis T. v. County of Los Angeles(2004) 123 Cal.App.4th 1405, 1421. As a result, the Legislature enactedthe statute to provide Avery generous limitations periods for adultswho belatedly realize >that psychological injury or illnessoccurring after the age of majority was caused by the sexual abuse=that occurred many years ago in childhood.@ Id.
The purpose of theexpanded limitation provided by ' 340.1(a) is to allow victims Aalonger time period in which to become aware of their psychologicalinjuries and remain eligible to bring suit against their abusers.@Debbie Reynolds v. Superior Court (1994) 25 Cal.App.4th 222, 232. As aresult, A[t]he limitations period begins to run [i.e. the claimaccrues] only after the victim, who is then an adult, appreciates thewrongfulness of the . . . conduct.@ Tietge v. Western Province of theServites (1997) 55 Cal.App.4th 382, 387.


In1998, the statute was amended to allow plaintiffs 8 years from the dateof majority to seek redress from responsible third parties under atheory of direct liability; whereas the previous versions applied onlyagainst the perpetrator of abuse. ' 340.1(b)(1), stats, 1998, ch. 1032,'1. Such actions were required to be filed prior to the plaintiff=s26th birthday. Id. In 1999 the Legislature clarified that the 1998provisions relating to non-abuser liability applied to Aactions begunon or after January 1, 1999, or if filed before that time, actionsstill pending as of that date, >including any action or causes ofaction which would have been barred by the laws in effect prior toJanuary 1, 1999.=@ Shirk v. Vista Unified School District (2007) 42Cal.4th 201, 208 citing Stats, 1999, ch. 120 ' 1.


In2002 the Legislature allowed the filing of claims against responsibleentities by plaintiffs over the age of 26 who could show the entitypossessed a requisite level of notice of the perpetrator=s actions andfailed to take actions to prevent further abuse. ' 340.1(b)(2).

The2002 amendments also revived, for 1 year, claims that Awould otherwisebe barred as of January 1, 2003, solely because the applicable statuteof limitations has or had expired . . .@ ' 340.1(c). The 1-year windowfor filing such claims closed on December 31, 2003. Id.
Last yearour Supreme Court recognized A[S]ubdivision (b)(2) is a remedialstatute that the Legislature intended to be construed broadly toeffectuate the intent that illuminates section 340.1 as a whole; toexpand the ability of victims of childhood sexual abuse to hold toaccount individuals and entities responsible for their injuries.@ Doev. City of Los Angeles (2007) 42 Cal.4th 531, 536. The Court noted thatthe 2002 amendment:

is intended to ensure that victims severelydamaged by childhood sexual abuse are able to seek compensation fromthose responsible. [&] . . . [T]his bill provides that the extendedstatute of limitations in childhood sexual abuse cases against a thirdparty extends beyond age 26 of the victim, when the third party knew,had reason to know, or was otherwise on notice, of unlawful sexualconduct by the individual and the third party failed to take reasonablesteps and to implement reasonable safeguards to avoid future acts ofunlawful sexual conduct by that individual . . . In support of themeasure, the author states: [&] This bill is essential to ensurethat victims severely damaged by childhood sexual abuse are able toseek compensation from those responsible. While current law allows alawsuit to be brought against a perpetrator within three years ofdiscovery of the adulthood aftereffects of the childhood abuse, currentlaw bars any action against a responsible third party entity (such asan employer, sponsoring organization or religious organization) afterthe victim=s 26th birthday . . . [&] . . . This arbitrarylimitation unfairly deprives a victim from seeking redress and unfairlyand unjustifiably protects responsible third parties from being heldaccountable for their actions that caused injury to victims.

Doe,42 Cal.4th at 544. The Assembly Judiciary Committee understood thatunder SB1779 A[p]eople who discover their adulthood trauma from themolestation after the effective date of the bill will have three yearsfrom the date the victim discovers or reasonably should have discoveredthat the adulthood trauma was caused by the childhood abuse.@ LH0142.
TheLegislature also repeatedly recognized that A[t]his bill would providethat the absolute age of 26 limitation in actions against a third partydoes not apply, and the broader >within three years of discovery=statute of limitations in subdivision (a) applies@ when the defendantwas on notice. LH0047; LH0068; LH0073; LH0088; LH0109; LH0112; LH0124.The Legislature=s justification for the expansion was that A[t]hepromotion of justice appears to be served by extending the statute oflimitations@ when the culpable third party was on notice of priormolestations. LH0106. That justification does not support the arbitrarydistinction urged by the Defendants.


Clearly then,the Legislature's goal in enacting subdivision (b)(2) was to expand theability of victims of childhood sexual abuse to sue those responsiblefor the injuries they sustained as a result of that abuse. This readingof subdivision (b)(2) is also consistent with the Legislature=s largerpurpose in enacting section 340.1. . . to allow victims of childhoodsexual abuse a longer time period in which to bring suit against theirabusers. . .@ Doe, 42 Cal.4th at 545.

***************
It is Defendants' continuing pattern of conduct that governs the limitations period for the cause of action.
*****************************


Thisprovision also serves the remedial purpose of abrogating the Aarbitrarylimitation@ that Aunfairly and unjustifiably protects responsible thirdparties.@ From the enactment of ' 340.1 in 1986, through the mostrecent amendments in 2002, the Legislature has consistently acted toexpand and liberalize the Avery generous limitations@ period affordedby ' 340.1. McVeigh v. Does 1 through 3, (2006) 138 Cal.App.4th 898,903-904 (' 340.1 Ahas been amended numerous times since its enactmentin 1986 . . . [e]ach time, plaintiffs’ access to the courts wasexpanded.@).

B. Plaintiff=s Action Was Timely-Filed In Accordance With The Delayed Accrual Provision In Section 340.1(a)(2)

Whenthe Legislature enacted SB1779, its aim was to create a comprehensivestatutory scheme that would permit all victims of childhood sexualabuse the opportunity to hold responsible third parties accountable.See Doe, 42 Cal.4th at 536. In furtherance of that goal, theLegislature permitted victims of childhood sexual abuse to utilize thelimitation periods codified in ' 340.1(a)(2) and (a)(3), whilesimultaneously allowing actions to be commenced after the plaintiff=s26th birthday, thereby allowing actions such as Plaintiff=s to becommenced in accordance with the statutory delayed accrual provision.

This expansion of the statute of limitations,alone, still resulted in the exclusion of hundreds of victims ofchildhood sexual abuse who had discovered the cause of their adulthoodinjuries prior to the enactment of SB1779.

To fill this gap inthe statute's coverage, the Legislature revived such claims, for aperiod of one year. ' 340.1(c). The resulting statutory framework,provided all victims of childhood sexual abuse a reasonable opportunityto hold responsible third parties accountable for their actions.

Anyother interpretation would arbitrarily exclude victims who were overthe age of 26, but had not discovered the connection between the sexualabuse and their adulthood injuries until after the effective date ofSB1779.

Such a construction is at odds with the statute=s remedial purpose, and contravenes the Legislature=s intent.
1. Section 340.1 applies the Athree year from discovery@ provision to actions commenced after January 1, 1999


Aplaintiff must bring a claim within the limitations period after theaccrual of the cause of action . . . [I]n other words, statutes oflimitation do not begin to run until a cause of action accrues.@ Fox,35 Cal.4th at 806; Cal. Code Civ. Proc. ' 312.


Theaccrual of Plaintiff=s claims under ' 340.1, and the concomitantcommencement of the running of the statute of limitations, isdetermined through a confluence of the 1998, 1999, and 2002 amendments.

The 1998 amendment applied the three year from discoverystatutory provision to claims against non-perpetrator defendants. The1999 amendment expressly and unequivocally applied that provisionretroactively, and revived all claims barred by the previously-existingstatute of limitation. The 1999 amendment applied to all actions filedafter January 1, 1999.

Thus, the accrual of a claim under '340.1 was redefined to occur when the plaintiff discovers the cause ofher adulthood injury. Since Plaintiff=s action was commenced afterJanuary 1, 2003, her claims are subject to the delayed accrualprovision of ' 340.1(a).

i. The plain language of Section 340.1 supports Plaintiff's interpretation of the statute

TheLegislature's choice of words in crafting the revival provision ofsubdivision (c) supports Plaintiff=s reading of the statute. The oneyear revival provision of SB1779 expressly applied to any action Athatwould otherwise be barred as of January 1, 2003.@ ' 340.1(c). Thislanguage provides a dramatic distinction from the language enacted bythe Legislature with respect to the 1999 amendment, where the statuteexpressly revived actions that were barred by the Alaw in effect priorto 1999."

The Legislature's decision to revive casesthat were time-barred Aas of@ January 1, 2003, rather than actions thatwere time-barred, prior to the statute's effective date, as it did in1999, is significant. See Cel-Tech Communications v. L.A. Cellular Tel.Co. (1999) 20 Cal.4th 163, 210.

Had it intended torevive only those actions that were barred under the statute oflimitations at the time of the touching, or by the age 26 limitation,the Legislature would have revived causes of action that were Abarredby the law in effect prior to January 1, 2003.@ The distinct languageused by the Legislature indicates that the revival applies to actionsthat are time-barred under the law in effect on January 1, 2003. Onthat date, subdivision (b)(2) permitted victims over the age of 26 tofile actions within three years of discovering the nexus between thechildhood sexual abuse and adulthood psychological injuries. A claimwas barred Aas of@ January 1, 2003, if the victim had previouslydiscovered the causal connection between the abuse and her injuriessuch that the claim had accrued and the statute of limitations hadexpired as of the effective date of SB1779.


ii. TheLegislature=s decision to re-enact the statute=s previous retroactivityprovisions without limitation demonstrates its intent that the 2002amendment apply retroactively

If additional support forPlaintiff's position is needed, it resides in the Legislature'sdecision to re-codify the 1999 amendment, without limitation, in 2002.

In1999, the Legislature expressly applied the three year from discoveryprovision of Section 340.1(a) to claims against third parties by notingthat the 1998 changes Ashall apply to any action commenced on or afterJanuary 1, 1999 . . . including any action or causes of action whichwould have been barred by the law in effect prior to January 1, 1999.@Stats. 1999, ch. 120 ' 1, subd. (s).

In 2002, the Legislatureamended ' 340.1 and extended the right of plaintiffs over 26 to sueresponsible third parties. Stats. 2002, ch. 149 ' 1, subd. (b)(2).Subdivision (s) was not substantively altered by SB1779, but wasexpressly renumbered. The Legislature declined to provide thatsubdivision (s) was inapplicable to the 2002 amendment.

Theplain language of the statute provides that an action may be filedagainst a third party by a plaintiff of any age, even if thatplaintiff=s claim would have lapsed under the laws in effect prior toJanuary 1, 1999.

A strikingly similar course of events tookplace with respect to the question of standing in wrongful deathactions as set forth in ' 377.60. In Bouley v. Long Beach MemorialMedical Center, the Second District Court of Appeal analyzed thestatutory history of the amendments to ' 377.60 and determined that theLegislature intended the 2002 amendment to apply retroactively. (2005)127 Cal.App.4th 601, 606-607. The court held that:

[T]helegislative intent is unmistakable. In subdivision (d), section 377.60provides that Athis section applies to any cause of action arising onor after January 1, 1993.@ With that language, the Legislatureunambiguously provided that the 2002 amendments must be applied[retroactively].@

Id. at 607. Although the court recognized thatsubdivision (d) was added in 1997, rather than by the amendments in2002, the court stated that:
[T]he Legislature is presumed to beaware of existing law [citations] and may certainly be presumed to knowthe full text of the laws it is amending. The Legislature was free toremove subdivision (d) from the statute once it served its originalpurpose [in 1999], or to amend it to specify that it did not apply tothe 2002 amendments. The fact that the Legislature chose not to do socan only lead us to conclude that the Legislature intended thatsubdivision (d) would apply to the 2002 amendments, making thoseamendments retroactive.@

Id. Similarly, in ' 340.1, theLegislature signaled its clear intention that the 2002 amendments beapplied retroactively because it did not remove or limit theretroactive language of subdivision (u). Moreover, the Legislature ispresumed not to enact surplusage. See Doe, 42 Cal.4th at 547 (AWe must,of course, avoid any construction that would create such surplusage@).Section 340.1 must be interpreted in a way that gives meaning tosubdivision (u). The construction urged by Defendants declines toafford any meaning to that subdivision, while subdivision (u) continuesto have meaning under Plaintiff=s interpretation. 2. Hightower does notcontrol when a plaintiff=s claim did not accrue prior to the enactmentof SB1779
Defendants afford too much significance to Hightower v.Roman Catholic Bishop of Sacramento (2005) 142 Cal.App.4th 759. AIt isaxiomatic that language in a judicial opinion is to be understood inaccordance with the facts and issues before the court. An opinion isnot authority for propositions not considered.@ People v. Knoller(2007) 41 Cal.4th 139, 154-155. The factual and legal distinctionsbetween the case currently before the court, and Hightower, are sosignificant that Hightower cannot be viewed as controlling.

InHightower the complaint was filed in 2004, and the plaintiff argued hehad complied with the statutory delayed accrual provision. The courtfound that the record belied Hightower=s assertion, and that factuallyno delayed discovery could be alleged in light of the plaintiff=srecognition of psychological injury in 1982. Id. The court nonethelessnoted that:
[ ] Effective 2003, the Legislature extended thelimitations period for claims such as Hightower's to the later of theplaintiff's 26th birthday or the date when the plaintiff discoveredthat his psychological injuries were caused by sexual abuse. At thesame time, the Legislature revived for only one year all such claimsthat were already time-barred. The Legislature therefore drew a cleardistinction between claims that were time-barred and those that werenot. Hightower's interpretation would obliterate that distinction byallowing his time-barred claim to take advantage of the new limitationsperiod. Therefore, the new delayed discovery rule does not reviveHightower's previously lapsed claims.
Id. at 767-768.
i. Hightower is factually distinguishable
Plaintiffhas alleged that she did not appreciate the wrongfulness of theconduct, and did not discover the connection between her molestationand resulting adulthood injuries, until after the effective date ofSB1779. Mr. Hightower, conversely, discovered the wrongful cause of hisadult psychological illness two decades before SB1779 was enacted. Thisfactual distinction is significant in light of the Legislature=sunderstanding that A[p]eople who discover their adulthood trauma fromthe molestation after the effective date of the bill [SB1779] will havethree years from the date the victim discovers or reasonably shouldhave discovered that the adulthood trauma was caused by the childhoodabuse.@ LH00142. In the light of the intended legal distinction betweenclaims accruing under ' 340.1(a) after January 1, 2003 and claimsaccruing prior to the effective date of SB1779, Hightower is notcontrolling in this case.

C. Plaintiff Has Adequately AllegedThat the Equitable Delayed Discovery Doctrine Prevented the Accrual ofHer Claim So That the Action Was Timely-Filed in 2007

Plaintiff=s action was timely commenced in accordance with equitable delayed discovery principles.

Statutesof limitation do not begin to run until a cause of action accrues.@Fox, 35 Cal.4th at 806. A cause of action generally accrues at Athetime when the cause of action is complete with all of its elements.@Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398. AAn importantexception to the general rule of accrual is the >discovery rule,=which postpones accrual of a cause of action until the plaintiffdiscovers, or has reason to discover, the cause of action.@ Fox, 35Cal.4th at 807; see also Evans v. Eckelman (1990) 216 Cal.App.3d 1609,1613 (equitable delayed discovery delays accrual of the cause of actionAuntil the plaintiff has discovered or reasonably should havediscovered the facts establishing the essential elements of her causeof action.@) The discovery rule may be Aexpressed by the Legislature orimplied by the courts.@ Norgart, 21 Cal.4th at 397. AUnder thediscovery rule, suspicion of one or more of the elements of a cause ofaction, coupled with knowledge of any remaining elements, willgenerally trigger the statute of limitations period[.] . . . [B]ydiscussing the discovery rule in terms of a plaintiff=s suspicion of>elements’ of a cause of action [the court] was referring to the>generic= elements of wrongdoing, causation, and harm. Id. If theplaintiff remains blamelessly ignorant of one or more of those genericelements, the plaintiff=s cause of action cannot accrue.

Afterthe passage of section 340.1, courts began to adopt a more liberal viewof delayed discovery in sexual abuse cases . . .@ Sellery v. Cressey(1996) 48 Cal.App.4th 538, 545. AKnowledge of the act and injury is notin itself sufficient to start the limitations period: >[U]nder thediscovery rule, the statute of limitations begins to run when theplaintiff suspects or should suspect that her injury was caused bywrongdoing, that someone has done something wrong to her.=@ Evans, 216Cal.App.3d at 1611; see also Jolly v. Eli Lilly & Co. (1988) 44Cal.3d 1103, 1114 (A. . . the limitations period begins to run when theplaintiff suspects, or should suspect, that she has been wronged@).AAwareness of wrongdoing is a prerequisite to accrual of the actionunder the delayed discovery rule.@ Evans, 216 Cal.App.3d at 1611, 1619(court could not Astate as a matter of law that it is psychologicallyimpossible for plaintiffs to have lived in such continuing ignorancethat what happened to them was wrong@); see Jolly, 44 Cal.3d at 1114;Curtis T., 123 Cal.App.4th 1405, 1422-23.


Here, atthe young age of approximately six Plaintiff was molested repeatedly bya respected authority figure. FAC at & 5. As a direct result of thePerpetrator's exploitation of religious doctrine, his status as both anauthority and much wanted paternal figure to plaintiff, and plaintiff'sRoman Catholic faith, Plaintiff was unable to appreciate thewrongfulness of the perpetrator's conduct until many years later. FACat & 10.1.


***********
In short, Plaintiff was induced to submit to the molestation by ruse, rather than by force.
*************************


In short, Plaintiff was induced to submit to the molestation by ruse, rather than by force.

UnderEvans, allegations that, due to the youth and inexperience of theplaintiff, or the discrepancy in perceived authority between victim andabuser, the plaintiff could not recognize the wrongfulness of thetouching are sufficient to invoke the doctrine.

D. Each Of Plaintiff's Causes Of Action Are Properly Pled

1. The 5th And 13th Causes Of Action Alleging Fraud

Thedirect and specific pleading rule argued by Defendants for fraud ismitigated where the following circumstances are present: 1) Ait appearsfrom the nature of the allegations that the defendant must necessarilypossess full information concerning the facts of the controversy@; 2)practicality; and 3) the realistic setting of the case. Committee onChildren=s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d197, 217, 219 (children not expected to recall specific advertisementthat lead them to desire a product). The Arequirement of specificity isrelaxed when the allegations indicate that >the defendant mustnecessarily possess full information concerning the facts of thecontroversy [citations omitted], or >when facts lie more in theknowledge of the opposite party.@ Tarmann v. State Farm Mut. Auto Ins.Co. (1991) 2 Cal.App.4th 153, 158. Even with the discovery andinvestigation conducted by plaintiff=s counsel in prior lawsuits, therecan be no dispute that facts related to Defendants’ concealment orfailure to disclose knowledge of their perpetrators’ tendencies toabuse children are far more available to Defendants than Plaintiff.


Additionally, Plaintiff has properly pleaded a cause of action for fraud based on concealment.

Fraudby concealment or non-disclosure is committed when: 1) the defendantconcealed or suppressed a material fact; 2) the defendant had a duty todisclose the fact; 3) the defendant intentionally concealed orsuppressed the fact with the intent to defraud plaintiff; 4) theplaintiff must have been unaware of the fact and would not have actedas she did if she had known of the concealed or suppressed fact, and 5)plaintiff sustained damage as a result of the suppression.

MarketingWest v. Sanyo Fisher (USA) (1992) 6 Cal.App.4th 603, 613. ADeceit maybe affirmative or negative. Affirmatively, it is a false statement.Negatively, it includes the suppression of a fact by a person who isobligated to disclose it.@ Nussbaun v. Weeks (1989) 214 Cal.App.3d1589, 1594. AA duty to disclose known facts arises when the partyhaving knowledge of the facts is in a fiduciary relation.@ Richelle L,106 Cal.App.4th at 271 (quoting Vai v. Bank of America (1961) 56 Cal.2d329, 337-38).
Notwithstanding the relaxed pleading requirements, theFAC is replete with allegations of intent by the Franciscans to concealand suppress allegations of abuse by the perpetrators, includingplaintiff=s perpetrator. See FAC, page 12: 16-26, page 16: 18-24. Theseallegations include the Ahow, when, where, to whom and by whatmeans@argued for by defendants. Additionally, the FAC sufficientlypleads constructive fraud, which does not require fraudulent intent.See Engalla v. Permanente Med. Group (1997) 15 Cal.App.4th 951, 981n.13.


As to the perpetrator's misrepresentations,Plaintiff incorporated the allegations, specific misrepresentations,and allegations of her reliance set forth at Page 16, lines 18-24 ofthe FAC into the 13th cause of action. Thus, the misrepresentations andreliance are stated in detail, and the 13th cause of action is properlypled.

Similarly, with regards to the 2007 misrepresentationsallegations of reliance and change in plaintiff=s legal position areset forth at Page 12, lines 16-26 of the FAC and incorporated into eachcause of action. Although the word Areliance@ is not used, it isimplicit in the allegations. To the extent the Court disagrees,plaintiff requests leave to so amend.

Finally, under the 3year statute of limitations for fraud set forth in Code of CivilProcedure section 338(d), the causes of action for fraud, and emotionaldistress based thereon, related to the 2007 misrepresentations aretimely.

2. The 6th And 7th Causes Of Action Alleging Breach Of Fiduciary Duty/Confidential Relationship

Defendantsmisstate and/or omit the allegations of the FAC that make it clear theconfidential relationship is not predicated solely on the nature ofPlaintiff's religious faith, and in fact alleges secular grounds forthe existence of a confidential relationship.

SeeFAC Paragraphs 43-44 and 54-55. Conversely, the plaintiff in RichelleL. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257 reliedsolely on her piety to establish the confidential relationship.Richelle L., 106 Cal.App.4th at 280. Accordingly, because Plaintiff hasalleged a confidential relationship based in large part on her youth,and that is not predicated solely on the nature of Plaintiff=sreligious faith, nor on the Perpetrator=s status as a Franciscan, theexistence of such a relationship is a question of fact that cannot bedecided on demurrer as a matter of law. Id. at 273 fn. 6.


3. The 8th Cause Of Action Alleging Negligent Failure To Warn, Train And Educate

WhetherDefendants had an educational program regarding child abuse in placeduring the period of abuse is presumptively within the knowledge ofDefendants.

Additionally, plaintiff incorporatesby reference the duty analysis set forth at page 8. Under the factsalleged in the FAC, Defendants had a duty to warn, train and educatePlaintiff. Juarez, 81 Cal.App.4th at 402. To the extent the Courtagrees Plaintiff=s allegations are insufficient in this regard,Plaintiff requests leave to amend to correct any such deficiencies.


4. The 9th and 10th Causes Of Action Alleging Intentional and Negligent Infliction Of Emotional Distress

Plaintiffhas not alleged Pastoral Malpractice anywhere in the FAC. In fact, as aresult of the abuse she suffered, she has not been a practicingCatholic for many years. When plaintiff made contact with theFranciscans in approximately 2005-06 it was to report the sexual abuseshe suffered, and to ask the assistance of the employer (theFranciscans) in identifying their employee who sexually abused her.

FAC,p. 12, lines 8-11. There is no claim of Apastoral malpractice@ in theallegations setting forth her reason for contacting the Franciscans.Id. Nor is there any such allegation in either of the emotionaldistress counts. FAC, && 61- 70. To the contrary, theallegations in those counts are purely secular in nature. FollowingDefendants’ flawed logic, a victim who reports her sexual abuse by ahospital employee to hospital administrator has sought medicaltreatment just by making such a report. The fact plaintiff reported herabuse to an employer who happened to be a religious brother does notrender the contact pastoral. Defendants have simply taken it uponthemselves to rewrite the emotional distress counts to fit the defensethey seek to raise. The lone case Defendants cite in support of theirargument, Nally v. Grace Community Church, (1988) 47 Cal.3d 278,further illustrates why plaintiff=s emotional distress counts are notclaims for clergy malpractice. The plaintiffs in Nally were the parentsof a young church member who committed suicide while participating inhis church=s pastoral counseling program. Id. at 284. Here, whileplaintiff was a practicing Catholic at the time of the abuse, it hasbeen many years since she was active in the Roman Catholic faith.Accordingly, and unlike in Nally, there was no Areligious relationship@when she made contact with the perpetrator=s employer in hopes theemployer could help identify the abuser.
Recognizing that thepastoral malpractice defense has no application to these facts,Defendants next try to cloak their conduct in the litigation privilege.


Plaintiff submits the evidence will make clear the2007 misrepresentations are not entitled to the protection of thatprivilege.

More importantly, whether aprelitigation communication is protected by the litigation privilege isan issue of fact that cannot be resolved by demurrer. Action ApartmentAss'n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251; seealso Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359,1381 (trial court erred in granting summary judgment on basis ofprivilege as A[i]t remain[ed] a triable issue of fact whether ...imminent litigation was seriously proposed and actually contemplated ingood faith)


5. The 12th Cause Of Action Alleging Violation of Business & Professions Code section 17200

Defendantstake creative license and rewrite the allegations of Plaintiff'scomplaint to fit their argument. Specifically, Defendants argue thebusiness practice Plaintiff seeks to enjoin is the sexual abuse ofPlaintiff. P=s and A=s, p. 13, ll. 12-14.

Plaintiff's FAC, however, is unambiguous regarding the actual business practices she seeks to enjoin.

See FAC, para. 85. Plaintiff has ample evidence to prove these have been and continue to be Defendants’ business practices.

Plaintiff seeks to end these practices through injunctive relief pursuant to this and the Public Nuisance causes of action.

Defendants’argument that damages are not available through the 17200 cause ofaction is irrelevant as the primary goal of this cause of action hasalways been to end these business practices via injunctive relief.

Finally,the subject cause of action is based on Defendants’ continuing businesspractices with regards to their employees who abuse children, and notjust on the abuse of plaintiff as argued by Defendants. As set forth inthe allegations Defendants now ask this Court to strike from the FAC,plaintiff has ample evidence, and expects to develop even more throughdiscovery, that Defendants continue to place today=s children at riskthrough these practices.

***************
Plaintiff seeks to end these practices through injunctive relief pursuant to this and the Public Nuisance causes of action
********************************


Accordingly,Plaintiff's complaint was filed well within the 4-year statute oflimitations applicable to this cause of action. Business &Professions Code section 17208.

6. The Vicarious Liability Component of the 13th Cause Of Action Alleging Fraud And Deceit

The Franciscans can be held liable for the torts of their priests and brothers under one of three theories:

1) that the Franciscans authorized the perpetrators’ conduct;

2) that they ratified said conduct; or

3) that public policy dictates they should be vicariously liable under the doctrine of respondeat superior.

SeeWhite v. Ultramar, (1999) 21 Cal.4th 563, 571 (discussing these threeconcepts); Murillo v. Rite Stuff Foods, Inc., (1998) 65 Cal.App.4th833, 852 (failure to terminate after notice of wrongdoing is evidenceof ratification).


Defendants relysolely on Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d1453, 1461 to support their argument Defendants have no vicariousliability. This reliance is misplaced.


While in1986 it might have defied every notion of logic and fairness to saythat sexual activity between a priest and a parishioner ischaracteristic of the Archbishop of the Roman Catholic Church,twenty-two years of clergy-abuse litigation later it has becometragically clear sexual abuse by Catholic priests and brothers has beenfar too common an occurrence, especially with the Franciscans.

Defendantsignore analysis in Rita M. that, when applied to the facts of thislawsuit, make it clear these defendants can and should be heldvicariously liable:

There is simply no basis forimputing liability for the alleged conduct of the individual defendantpriests in this instance to the respondent Archbishop. Similarly,appellant has not pointed out any fact which could lead this court to aconclusion that the Archbishop Aratified@ the concupiscent acts of thepriests.

Id.

Here, plaintiff has alleged therewere at least 10 or 15 instances where the perpetrator induced her tostrip naked in the presence of at least one other Franciscan, includingone incident in which a third Friar and apparent hierarchy memberwalked in on such abuse.

See FAC, Para. 7. Theperpetrator=s abuse of plaintiff, however, continued. Id. Plaintiffalso has alleged that Franciscan perpetrators have sexually assaultedno less than 60 Santa Barbara children since 1936. FAC, Para. 8.


Andplaintiff has alleged the Franciscans have, as with plaintiff, beenreceiving notice of this abuse since at least 1964 but allowed it tocontinue.

Plaintiff will allege all of these facts in greaterdetail if necessary, but respectfully submits these facts as allegedprovide ample basis Ain this instance@ for imputing liability to theFranciscans under all three theories of vicarious liability.

Finally,the applicability of respondeat superior is a factual question. Lisa M.v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 291, 299-300;Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213. Accordingly,the challenge to Plaintiff=s theory of vicarious liability isinappropriate at this time, and should not be decided on demurrer.


7. The 14th Cause Of Action For Premises Liability
Ithas long been established that landowners and/or business proprietorshave a Aduty to take affirmative action to control the wrongful acts ofthird persons which threaten invitees where the occupant has reasonablecause to anticipate such acts and the probability of injury resultingtherefrom.@ Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.Numerous cases involving third party conduct have met the definition offoreseeably dangerous activities giving rise to premises liability.
Anattack in a hospital parking lot where emergency room operations in ahigh crime neighborhood drew persons under the influence of drugs oralcohol. Isaacs v. Huntington Mem=l Hosp. (1985) 38 Cal.3d 112, 130-31.A rape in a condominium unit located in a high crime wave area whichlacked exterior lighting. Frances T. v. Village Green Own Ass’n (1986)42 Cal.3d 490, 498. A rape where several of a building=s female tenantshad been attacked, but where the landlord failed to warn of thisdanger. Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324,333. A sexual assault in the women=s room of a public rest stop by ahidden assailant where such was Adismally predictable.@ Constance B.State of Cal. (1986) 178 Cal.App.3d 200, 206-07. The law recognizesthat a landowner can be liable for the intentional unlawful conduct ofothers. Here, the legal nexus is even closer because the individualscommitting the criminal acts were Defendants’ employees.


Here,Plaintiff's FAC alleges that Defendants controlled the church propertywhere the sexual abuse took place; that Defendants’ use of the propertyconsisted of placing children in the care of men with known tendenciesfor sexual abuse of children; that Plaintiff was sexually abused on theproperty; and that the harm to Plaintiff was caused by Defendants’negligence.

Plaintiffs have satisfied the legal elements ofthe cause of action for premises liability. Defendants attempt to forcea distorted employer negligence argument into a premises liabilitydefense.

In support they rely upon an inappositecase: Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th992, 1004-05 (governmental tort claims action). This case does notstand for the proposition that a landowner cannot be held liable forreasonably foreseeable intentional criminal conduct that occurs on hisor her property. In fact, it does not even address the issue ofpremises liability.
In the two cases cited by Defendants thatreference premises liability B Juarez, 81 Cal.App.4th 377 and Eric J.,76 Cal.App.4th 715 B Defendants misconstrue the holdings. Contrary toDefendants’ suggestion that Juarez precludes premises liability wherethe plaintiff had been molested on Church property, Juarez actuallyholds that the plaintiff had not met the pleading requirements because:
[M]aterialfacts [have not] been proffered by Juarez to support his cause ofaction against the Church alleging premises liability . . . Juarez doesnot claim there were facts that put or should have put the Church onnotice of the molestation, nor does he claim the Church could havetaken effective steps to the sexual molestation. [Instead,] Juarezimplies that the Church was strictly liable for anything occurring onits premises. This is not the law in California.
Juarez, 81Cal.App.4th at 413. Plaintiff=s case is not just distinguishable fromJuarez, but the exact opposite in terms of allegations of notice todefendants. Unlike in Juarez, Plaintiff has alleged facts that putDefendants on notice not only of her molestation, but that of numerousother children at St. Anthony=s and the Mission. Plaintiff furtheralleges Defendants could have taken effective steps to prevent sexualmolestation of plaintiff and these other children.

Defendantsreliance on Eric J. is similarly misplaced. In addition to the factEric J. is an appeal from a motion for a nonsuit, the bases forpremises liability that were missing in Eric J. are present in thiscase. Specifically, the Eric J. court noted the fact the property atissue were Ajust homes@ as opposed to businesses, that there was noactivity on the property implicating liability, and that there was noentrustment of a child to any of the defendants. Eric J., 76Cal.App.4th at 727. Here, St. Anthony=s and the Old Mission served bothas a school and a parish, the latter attended by plaintiff and bothopen to the public.


Additionally, plaintiff wasnot only brought to the property and abused there by the perpetrator,but was seen, repeatedly and during the abuse, by other Franciscans.And there can be no question of the activity on the propertyimplicating liability, with the first known abuse of a Santa Barbarachild having taken place at St. Anthony=s during the 1936-37 schoolyear.

8. The 11th and 15th Causes Of Action For Violation of PC 11166/Procurement

Section340.1(e) defines childhood sexual abuse by reference to various PenalCode sections. The first such Penal Code section referenced in '340.1(e) is PC section 266j, the crime of procurement of a child whichis the basis for the 15th cause of action.


Byincluding section 266j in section 340.1's definition of Achildhoodsexual abuse, the legislatures’ intent is clear. And the fact 266 and11166 were not enacted until 1980-81 is irrelevant under eitherstatutory or common law delayed discovery.

DATED: December 13, 2008

NYE, PEABODY, STIRLING & HALE

By:

TIMOTHY C. HALE
Attorneys for Plaintiff

***

Kay here again.

Keepin mind, other states have similar Public Nuisance law, includingIllinois where I was raped at age five. We now know Catholic priestssexually assaulted children in 'quite a few' places, to put it mildly.Allowing pedophiles to operate freely for decades, resulting inhundreds of thousands of victims, is probably grounds for publicnuisance lawsuits such as the one going forward in Santa Barbaraagainst numerous religious orders and archdioceses.

***************
Byrefusing to identify its pedophiles and notify the public of all theirlocations, the Catholic Church is creating an ongoing public nuisance -
**************************


Onward -

AndDon't Forget the High Five Campaign, please pay for readership of Cityof Angels Blog by putting $5 or higher on the PayPal account linked inthe top left column - just every now and then to keep the cosmosbalanced . . .



Having a problem accessing a file or finding what you are looking for? Email us for a listing of alternate locations.


Notify us of an article of interest

Register to take part in secure International polls


Publishing a story about TFYQA? - See our for the News Media page.

Want to share your news! Use Submit TFYQA News.

Pedophilia and sexual abuse of children in Australia