Franciscans are a Public Nuisance for letting children be raped over decades, says Santa Barbara lawsuit, which could work in other states as well

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By Kay Ebeling

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

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

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

Other states have public nuisance law, including Illinois, where I was raped at age five by Father Horne. In FindLaw is news of an Illinois Supreme Court decision striking 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.

Justice Garman wrote that guns in a neighborhood do not affect the entire community the same way “offensive conduct emanating from a ‘bawdy house’- would affect all equally." With priests raping altar boys in sacristies, and priests teaching girls to talk dirty in First Confession, and volumes of other charges, the Archdiocese of Chicago is ripe for a public nuisance lawsuit.

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

The brief filed for the plaintiffs in Santa Barbara reads almost like an article in the New Yorker or Vanity Fair in its narrative parts. It is a public document, so here for a Sunday read below in its entirety is the Opposition to Demurrer and Motion to Strike the First Amended Complaint, by Timothy Hale of Nye, Peabody, Stirling, & Hale.

Email this story to every lawyer you know, and maybe public nuisance suits are the way we can get the public to see these felons disguised as holy men 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 understood to be the whole. Prosser & Keeton, The Law of Torts (5th ed. 1984) Misrepresentation and Nondisclosure, ' 106, p. 738 (italics added).

For decades the Franciscan Friars have told half-truths to the communities in which they perform their ministry, and in doing so have lied. In no community has the lie been greater, or been the source of more tragedy, than Santa Barbara.

Since their Provinces creation on January 19, 1916, the Franciscans have invited the community into their missions, parishes and schools, and sent their Franciscans out into the community. Each of those Franciscans have born the title of Roman Catholic AFather@ or ABrother.@ Each has worn the garb immediately identifying his status, sometimes the brown robes of the Franciscan order, sometimes the white collar identifying the wearer as a priest.

Inherent in each of these titles and garb is the unequivocal Franciscan message to the community that the individual is honest, trustworthy, and perhaps even the voice of god. Each Franciscan has enjoyed an undeniable presumption of goodness as a result.

Unfortunately, in the case of at least 25 of these men, these titles and garb expressed half-truths that in reality were lies being told by the Franciscans - the perpetrators’ employers - to the community. While these men were priests and brothers, the Franciscans learned long ago they were also criminals, wolves in sheep=s clothing. Or in this case, pedophiles held out to the community as trustworthy Roman Catholic Priests and brothers of the highest character, a secret Defendants still fight to preserve.

The results of Defendants’ lies have been undeniably horrific. With the community justifiably assuming these titles and garb have stated the whole truth about each Franciscan's background and character, 25 perpetrators have exploited the presumption of goodness they enjoy in their capacities as priests or brothers in Defendants’ employ.

This presumption has allowed them to prey upon at least 59 children in Santa Barbara since 1964, with countless children abused by Franciscans in other communities as well. Despite this overwhelming evidence of the harm caused by their continuing conduct, Defendants refuse to change their ways, and in fact fight to preserve them. Plaintiff seeks such change through this lawsuit.

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

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

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

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

II. STANDARD OF REVIEW

A demurrer tests the sufficiency of a complaint as a matter of law. Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958. In ruling on a demurrer, all material facts pleaded in the complaint and those 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, 78 Cal.App.4th at 958. A>A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily 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 a demurrer when the plaintiff has stated a cause of action under any possible legal theory.@ Fox v. Ethicon (2005) 35 Cal.4th 797, 810.

III. THE LAW OF PUBLIC NUISANCE

Since at least the early 1960s, and most likely much earlier, the Franciscans have ignored the civil and criminal law, and essentially followed their own standards when dealing with their child-abusing employees.

Plaintiff's counsel are aware of only one instance where a Franciscan has reported another child-abusing Franciscan to law enforcement, and even in that case the report did not take place until approximately thirty years after the fact, long past the expiration of the criminal statute of limitations.

Equity must end the horrific public nuisance created by the Franciscans. For decades the Franciscans have imposed on communities the Franciscans’ standards of conduct regarding the protection of children. The results have been and continue to be tragic. And despite such an outcome the Franciscans refuse to change their ways.

Simply pupt, they must be stopped.

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

"In the public nuisance context, the community's right to security and protection must be reconciled with the individual's right to expressive and associative freedom. . . . the security and protection of the community is the bedrock on which the superstructure of individual liberty rests." Id.

A principal office of the centuries-old doctrine of the public nuisance has been the maintenance of public order-tranquillity, security and protection-when the criminal law proves inadequate.@ Id. at 1103.

Nowhere has the criminal law proven more inadequate than in the communities where the Franciscans continue to conceal perpetrators, particularly in Santa Barbara where all but 2 of 25 Franciscan perpetrators have escaped criminal prosecution despite assaulting at least 60 Santa Barbara children since 1936.

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The public nuisance doctrine is aimed at the protection and redress of community interests
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Unlike the private nuisance- tied to and designed to vindicate individual ownership interests in land - the >common= or public nuisance emerged from distinctly different historical origins. The public nuisance doctrine is aimed at the protection and redress of community interests . . .." Id. at 1103. There can be no question that the protection of children from childhood sexual abuse is one of the most recognized community interests in California. See First Amended Complaint (AFAC@), page 14.

California defines nuisance as anything that is Ainjurious to health, ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary 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 nuisances into public and private.

A public nuisance is one which Aaffects at the same time an entire community or neighborhood, or any considerable number of persons.@ (Civ.Code, ' 3480.) Rounding out the taxonomy of the Civil Code, section 3491 provides 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. at 1105. A[T]he question is not whether the particular plaintiff found the invasion unreasonable, but >whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider 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
actually are higher (again without providing the public with any information about the identities or current whereabouts of the 27 perpetrators to which they now admit).

Plaintiff respectfully submits no reasonable person could find anything remotely reasonable about these numbers, or about the continuing pattern of Franciscan conduct that resulted in these numbers.

A. Defendants’ Duty Argument Is Unsupportable

According to the Franciscans, they have no duty to warn a community if they receive reports of abuse regarding one of their employees, subsequently allow him to hold titles and wear garb that inherently convey to all who encounter him that, at the least, he is trustworthy and of good character, and then assign him job duties requiring community interaction that inevitably results in contact with children.

Similarly, according to the Franciscans, they have no duty to warn anyone if they received a report of abuse by one of their employees, helped him evade conviction and having to register as a sex offender by either not reporting his crimes to law enforcement or doing so only after his criminal statute of limitations had expired, and then allowed him to leave their employ to work in communities who have no clue as to his criminal propensities because he has never had to register as a sex offender, and has no criminal record.

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Repeat: Similarly, according to the Franciscans, they have no duty to warn anyone if they received a report of abuse by one of their employees
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In addition to being outrageous, not to mention illustrative of the Franciscan mentality that both has resulted in this tragedy and drives the conduct that is a continuing public nuisance, these arguments are contrary to the law, and to the compelling state interest in preventing childhood sexual abuse.

The Franciscans find no support for their "no duty" argument in the authority they cite. None of those cases contain facts like those found herein: an employee accused of abuse who not only is allowed to continue in his employment, but, as part of his job duties, is allowed to enter into a community or to interact with community members while having job titles and wearing garb that inherently communicate to each person he encounters, whether they are Catholic or otherwise, that he is trustworthy and of good character.

Defendants cite two cases for this repugnant proposition, Thompson v. County of Alameda (1980) 27 Cal.3d 741 and Eric J. v. Betty M. (1999) 76 Cal.App.4th 715. Defendants’ attempt to analogize themselves to the defendants in these two lawsuits fail miserably. In Thompson, the defendant was a county that paroled a convicted offender who was a threat to young children. In Eric J., the defendants were family members who knew their relative was convicted child abuser but did not warn his girlfriend or her young son. Unlike Defendants herein, neither the county nor the family members helped the perpetrators in Thompson or Eric J. escape criminal prosecution, and avoid registration as sex offenders. Also unlike Defendants herein, neither the county nor the family members hired or continued to employ the perpetrators, assigning them job titles or uniforms that would convey trustworthiness to the communities in which they worked. And neither the county nor the family members then sent the perpetrators out into the community, or invited the community to their place of business where they employed the perpetrators, all in furtherance of their business interests. These distinctions render Thompson and Eric J. inapplicable to the facts of this lawsuit.

Defendants next claim notification to the community is unworkable. There is nothing unworkable about notifying the administration of local parishes and schools in the community where an accused is assigned, nor about notifying local media. Obviously, law enforcement must be notified.

And there now are online databases that can be notified, such as bishop accountability dot org, that childcare custodians can look to determine if a priest or brother has been accused of abuse. The time has long since passed for communities to submit to the Franciscans' insistence that they be allowed to handle such matters internally.

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

A greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger.@ Juarez v. Boy Scouts (2000) 81 Cal.App.4th 377, 410. Generally, a person has no duty to control the conduct of a third person, nor to warn those endangered by such conduct, in the absence of a special relationship either to the third person or to the victim. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 435. However, an exception to this rule exists where the defendant, through his or her own action creates a foreseeable risk of harm from the third person. Under those circumstances the question of duty is governed by the standards of ordinary 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 the activity engaged in by the defendant.@ Bastian, 199 Cal.App.3d at 530.

Here, although not necessary to create a duty, there can be no question Defendants were in a special relationship with the perpetrators giving rise to a duty as they employed the perpetrators, sent them for treatment for pedophilia, and sent them out into communities with job titles and garb communicating the perpetrators were of the highest character.

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Defendants employed the perpetrators in the utmost positions of trust, and allowed them to work with children. As a result it was and is foreseeable that the perpetrators would abuse children
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Determining the existence of a tort duty requires consideration of foreseeability of harm, degree of certainty of harm, the closeness of the connection between the defendant's conduct and the injury, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the burden to the defendant, and the consequences of imposing liability. Rowland v. Christian (1968) 69 Cal.2d 108, 112-13. Here, there was ample notice to Defendants of the risk posed by the perpetrators, and in many cases Defendants were well aware of repeat offenses by the same perpetrator.

Similarly, Defendants employed the perpetrators in the utmost positions of trust, and allowed them to work with children. As a result it was and is foreseeable that the perpetrators would abuse children, and that members of the communities where the Defendants conduct their business would lose the ability to leave their children unsupervised anywhere Defendants’ employees are present.

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

As to the consequences of imposing liability, they are far outweighed by the cost to society of allowing Defendants’ conduct to continue.

B. Defendants’ Causation Argument Is Without Merit

Defendants’ causation argument would be comical if the facts that refute it were not so tragic. Defendants argue Plaintiff is "unable to allege any purported abuse by a Franciscan that post dates the 1980's." Demurrer Ps and As, p. 6, l. 9. This statement is false.

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

Prior to settling that lawsuit in 2006, the Franciscans were notified in writing, repeatedly, of the dates of abuse. Hale Decl., & 4. Similarly, Defendants are also well aware that two adolescent boys were sexually abused by a Franciscan brother at the Serra Retreat House in Malibu 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 a Franciscan earlier in this decade: Fr. Steven Kain, a former faculty member at St. Anthony's Seminary. Fr. Kain was one of 4 Franciscans accused of childhood sexual abuse in another 1993 Santa Barbara Superior Court lawsuit, Larson v. Franciscan Friars of California, Inc. et al., Case No. 719033 7. In the recent coordination litigation Franciscan Fr. Xavier Harris testified he and Fr. Kain worked together for a period of 2-3 years at St. Williams, a parish in Los Altos at least 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. Harris Deposition, starting at pages 41:13 - 46: 3, Hale Dec., Ex. 2. Fr. Harris’ testimony made the pattern of conduct clear: Reports of abuse by 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 parishioners at St. Williams; Fr. Kain sexually abuses a child at St. Williams in or around 2001; the Franciscans transfer Fr. Kain again, to St. Boniface in San Francisco; and again, the Franciscans provide no warning to the parishioners at his new parish. This abuse did not take place in the 1980s or even the 1990s. These are relatively recent events.

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Defendants’ causation argument would be comical if the facts that refute it were not so tragic
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In addition to misinformation provided to this Court, Defendants play semantic games in an effort to avoid responsibility for the abuse committed in 2007 by Louis Ladenburger.

As alleged more fully starting at page 10 of the FAC, Ladenburger pled guilty last year to sexually assaulting two children in Idaho. In the apparent belief they no longer bear any responsibility for Ladenburger because he left the Order in 1996, the Franciscans argue Plaintiff cannot allege abuse "by a Franciscan that post dates the 1980s."

Ladenburger was employed by a school in Idaho; his victims were students. Had the Franciscans acted when they first learned of his propensities in the 1980s, reported Ladenburger to authorities, and warned the communities in which he was and had been assigned, Ladenburger would most likely have been a registered sex offender, and never would have been hired by the Idaho school.

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

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

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It takes most victims at least 20 years to either recover repressed memories, or to recognize and come to terms with the wrongfulness of the conduct by a man they associated with god
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The Franciscans are well aware that most victims of such abuse never come forward, and carry their horrible secret to their grave. And when such victims do come forward, it is extraordinarily rare for them to do so as soon after the abuse ends as the two Ladenburger victims.

To the contrary, it takes most victims at least 20 years to either recover repressed memories, or to recognize and come to terms with the wrongfulness of the conduct by a man they associated with god, much less find the courage to speak about their experiences.

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5 waited more than 30 years after the abuse ended before finding the courage to come forward. 4 waited at least 20 years, 2 waited at least 18, and two more waited 12.
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For instance, in the recent coordinated proceedings, of the 14 survivors represented by Plaintiff's counsel who came forward between 2003 and 2005, 5 waited more than 30 years after the abuse ended before finding the courage to come forward. 4 waited at least 20 years, 2 waited at least 18, and two more waited 12.

One other survivor who was abused in the 1960's notified the Franciscans in the 1970s, but did not actually file a lawsuit until 2003. Hale Decl., & 7. In short, in addition to being indisputably false, it is far too early for the Franciscans to be patting themselves on the back and claiming no Franciscans have abused children since the 1980's. The public nuisance is continuing.

In support of their causation argument, Defendants cite In re Firearms Cases, 126 Cal.App.4th 959. It should be noted at the outset that Defendants’ causation argument cannot provide the basis for sustaining a demurrer. AFacts relating to the 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 appeal from an order granting a motion for summary judgment. 126 Cal.App.4th at 967. Additionally, the trial court granted summary judgment after the plaintiffs failed to offer any factual evidence that the practices of gun manufacturers was causally connected to the acquisition of firearms by criminals. To the contrary, plaintiffs argued in appealing the order granting summary judgment that they were not required to link any specific instance, of a criminal acquiring a gun, to a gun manufacturer, and instead relied solely on Aexpert testimony based on statistical studies of illegal gun purchases.@ In re Firearms Cases, 126 Cal.App.4th at 969. The exact opposite is true in this case.

After ten years of litigating Franciscan abuse cases, Plaintiff's counsel has amassed nearly 7 decades worth of fact-based evidence showing the causative link between Defendants’ conduct and the resulting harm. That evidence is alleged in detail in the allegations Defendants now seek to strike from the FAC.

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

C. Plaintiff Has Standing To Assert A Public Nusiance Claim

Plaintiff's FAC is unambiguous, setting forth in detail the harm to the public and the unique harm to plaintiff giving her standing to bring a Public Nuisance claim. See FAC, paras. 14 15. Defendants take creative license and 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 15 of the FAC makes clear this is not Plaintiff's special injury. Defendants' conduct is harmful to the general public as they place perpetrators into positions of trust, but cannot be trusted to warn the public of the identity of the perpetrators, thus restricting the ability of the public to leave their children unsupervised anywhere Defendants conduct their business.

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7 decades worth of fact-based evidence
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The special injuries to Plaintiff are separate and distinct: the sexual abuse she suffered, and the recent trauma she suffered, both as a result of Defendants' conduct. These special injuries are different in kind from that suffered by the public, and thus give Plaintiff standing to file suit on behalf of the general public under the authorities cited by Defendants.

There is more than a degree of difference between being sexually assaulted as a child, or being deceived and traumatized by a misrepresentation that one was the only victim of a particular perpetrator, and the loss of the ability of a childcare custodian to leave their child unsupervised in any location where Defendants are conducting their business.

Apparently recognizing their argument tries to fit a square peg into a round hole, Defendants argue 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 for imposing such a pleading burden, and simply confirms Plaintiff's obligation to allege, as she has, a special injury different in kind from the general public's.

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

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

While the abuse Plaintiff suffered is a special injury giving her the right to bring a Public Nuisance claim, it is Defendants' continuing pattern of conduct that governs the limitations period for the cause of action. Plaintiff has alleged and will prove that the Franciscans' misconduct with regard to their perpetrators continues to the present day.

And it is this continuing conduct that determines the timeliness of the Public Nuisance claim. "No lapse of time can legalize a public nuisance, amounting to an actual 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
Section 340.1 represents the Legislature=s recognition that the comprehension of harm inflicted as a result of childhood sexual abuse can be delayed for many years into adulthood. Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1421. As a result, the Legislature enacted the statute to provide Avery generous limitations periods for adults who belatedly realize >that psychological injury or illness occurring after the age of majority was caused by the sexual abuse= that occurred many years ago in childhood.@ Id.
The purpose of the expanded limitation provided by ' 340.1(a) is to allow victims Aa longer time period in which to become aware of their psychological injuries and remain eligible to bring suit against their abusers.@ Debbie Reynolds v. Superior Court (1994) 25 Cal.App.4th 222, 232. As a result, A[t]he limitations period begins to run [i.e. the claim accrues] only after the victim, who is then an adult, appreciates the wrongfulness of the . . . conduct.@ Tietge v. Western Province of the Servites (1997) 55 Cal.App.4th 382, 387.

In 1998, the statute was amended to allow plaintiffs 8 years from the date of majority to seek redress from responsible third parties under a theory of direct liability; whereas the previous versions applied only against the perpetrator of abuse. ' 340.1(b)(1), stats, 1998, ch. 1032, '1. Such actions were required to be filed prior to the plaintiff=s 26th birthday. Id. In 1999 the Legislature clarified that the 1998 provisions relating to non-abuser liability applied to Aactions begun on or after January 1, 1999, or if filed before that time, actions still pending as of that date, >including any action or causes of action which would have been barred by the laws in effect prior to January 1, 1999.=@ Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, 208 citing Stats, 1999, ch. 120 ' 1.

In 2002 the Legislature allowed the filing of claims against responsible entities by plaintiffs over the age of 26 who could show the entity possessed a requisite level of notice of the perpetrator=s actions and failed to take actions to prevent further abuse. ' 340.1(b)(2).

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

is intended to ensure that victims severely damaged by childhood sexual abuse are able to seek compensation from those responsible. [&] . . . [T]his bill provides that the extended statute of limitations in childhood sexual abuse cases against a third party extends beyond age 26 of the victim, when the third party knew, had reason to know, or was otherwise on notice, of unlawful sexual conduct by the individual and the third party failed to take reasonable steps and to implement reasonable safeguards to avoid future acts of unlawful sexual conduct by that individual . . . In support of the measure, the author states: [&] This bill is essential to ensure that victims severely damaged by childhood sexual abuse are able to seek compensation from those responsible. While current law allows a lawsuit to be brought against a perpetrator within three years of discovery of the adulthood aftereffects of the childhood abuse, current law bars any action against a responsible third party entity (such as an employer, sponsoring organization or religious organization) after the victim=s 26th birthday . . . [&] . . . This arbitrary limitation unfairly deprives a victim from seeking redress and unfairly and unjustifiably protects responsible third parties from being held accountable for their actions that caused injury to victims.

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

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

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It is Defendants' continuing pattern of conduct that governs the limitations period for the cause of action.
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This provision also serves the remedial purpose of abrogating the Aarbitrary limitation@ that Aunfairly and unjustifiably protects responsible third parties.@ From the enactment of ' 340.1 in 1986, through the most recent amendments in 2002, the Legislature has consistently acted to expand and liberalize the Avery generous limitations@ period afforded by ' 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 enactment in 1986 . . . [e]ach time, plaintiffs’ access to the courts was expanded.@).

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

When the Legislature enacted SB1779, its aim was to create a comprehensive statutory scheme that would permit all victims of childhood sexual abuse the opportunity to hold responsible third parties accountable. See Doe, 42 Cal.4th at 536. In furtherance of that goal, the Legislature permitted victims of childhood sexual abuse to utilize the limitation periods codified in ' 340.1(a)(2) and (a)(3), while simultaneously allowing actions to be commenced after the plaintiff=s 26th birthday, thereby allowing actions such as Plaintiff=s to be commenced 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 of childhood sexual abuse who had discovered the cause of their adulthood injuries prior to the enactment of SB1779.

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

Any other interpretation would arbitrarily exclude victims who were over the age of 26, but had not discovered the connection between the sexual abuse and their adulthood injuries until after the effective date of SB1779.

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

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

The accrual of Plaintiff=s claims under ' 340.1, and the concomitant commencement of the running of the statute of limitations, is determined through a confluence of the 1998, 1999, and 2002 amendments.

The 1998 amendment applied the three year from discovery statutory provision to claims against non-perpetrator defendants. The 1999 amendment expressly and unequivocally applied that provision retroactively, and revived all claims barred by the previously-existing statute of limitation. The 1999 amendment applied to all actions filed after January 1, 1999.

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

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

The Legislature's choice of words in crafting the revival provision of subdivision (c) supports Plaintiff=s reading of the statute. The one year revival provision of SB1779 expressly applied to any action Athat would otherwise be barred as of January 1, 2003.@ ' 340.1(c). This language provides a dramatic distinction from the language enacted by the Legislature with respect to the 1999 amendment, where the statute expressly revived actions that were barred by the Alaw in effect prior to 1999."

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

Had it intended to revive only those actions that were barred under the statute of limitations at the time of the touching, or by the age 26 limitation, the Legislature would have revived causes of action that were Abarred by the law in effect prior to January 1, 2003.@ The distinct language used by the Legislature indicates that the revival applies to actions that are time-barred under the law in effect on January 1, 2003. On that date, subdivision (b)(2) permitted victims over the age of 26 to file actions within three years of discovering the nexus between the childhood sexual abuse and adulthood psychological injuries. A claim was barred Aas of@ January 1, 2003, if the victim had previously discovered the causal connection between the abuse and her injuries such that the claim had accrued and the statute of limitations had expired as of the effective date of SB1779.

ii. The Legislature=s decision to re-enact the statute=s previous retroactivity provisions without limitation demonstrates its intent that the 2002 amendment apply retroactively

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

In 1999, the Legislature expressly applied the three year from discovery provision of Section 340.1(a) to claims against third parties by noting that the 1998 changes Ashall apply to any action commenced on or after January 1, 1999 . . . including any action or causes of action which would have been barred by the law in effect prior to January 1, 1999.@ Stats. 1999, ch. 120 ' 1, subd. (s).

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

The plain language of the statute provides that an action may be filed against a third party by a plaintiff of any age, even if that plaintiff=s claim would have lapsed under the laws in effect prior to January 1, 1999.

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

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

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

Id. Similarly, in ' 340.1, the Legislature signaled its clear intention that the 2002 amendments be applied retroactively because it did not remove or limit the retroactive language of subdivision (u). Moreover, the Legislature is presumed 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 to subdivision (u). The construction urged by Defendants declines to afford any meaning to that subdivision, while subdivision (u) continues to have meaning under Plaintiff=s interpretation. 2. Hightower does not control when a plaintiff=s claim did not accrue prior to the enactment of SB1779
Defendants afford too much significance to Hightower v. Roman Catholic Bishop of Sacramento (2005) 142 Cal.App.4th 759. AIt is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.@ People v. Knoller (2007) 41 Cal.4th 139, 154-155. The factual and legal distinctions between the case currently before the court, and Hightower, are so significant that Hightower cannot be viewed as controlling.

In Hightower the complaint was filed in 2004, and the plaintiff argued he had complied with the statutory delayed accrual provision. The court found that the record belied Hightower=s assertion, and that factually no delayed discovery could be alleged in light of the plaintiff=s recognition of psychological injury in 1982. Id. The court nonetheless noted that:
[ ] Effective 2003, the Legislature extended the limitations period for claims such as Hightower's to the later of the plaintiff's 26th birthday or the date when the plaintiff discovered that his psychological injuries were caused by sexual abuse. At the same time, the Legislature revived for only one year all such claims that were already time-barred. The Legislature therefore drew a clear distinction between claims that were time-barred and those that were not. Hightower's interpretation would obliterate that distinction by allowing his time-barred claim to take advantage of the new limitations period. Therefore, the new delayed discovery rule does not revive Hightower's previously lapsed claims.
Id. at 767-768.
i. Hightower is factually distinguishable
Plaintiff has alleged that she did not appreciate the wrongfulness of the conduct, and did not discover the connection between her molestation and resulting adulthood injuries, until after the effective date of SB1779. Mr. Hightower, conversely, discovered the wrongful cause of his adult psychological illness two decades before SB1779 was enacted. This factual distinction is significant in light of the Legislature=s understanding that A[p]eople who discover their adulthood trauma from the molestation after the effective date of the bill [SB1779] will have three years from the date the victim discovers or reasonably should have discovered that the adulthood trauma was caused by the childhood abuse.@ LH00142. In the light of the intended legal distinction between claims accruing under ' 340.1(a) after January 1, 2003 and claims accruing prior to the effective date of SB1779, Hightower is not controlling in this case.

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

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

Statutes of 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 Athe time when the cause of action is complete with all of its elements.@ Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398. AAn important exception to the general rule of accrual is the >discovery rule,= which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.@ Fox, 35 Cal.4th at 807; see also Evans v. Eckelman (1990) 216 Cal.App.3d 1609, 1613 (equitable delayed discovery delays accrual of the cause of action Auntil the plaintiff has discovered or reasonably should have discovered the facts establishing the essential elements of her cause of action.@) The discovery rule may be Aexpressed by the Legislature or implied by the courts.@ Norgart, 21 Cal.4th at 397. AUnder the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period[.] . . . [B]y discussing 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 the plaintiff remains blamelessly ignorant of one or more of those generic elements, the plaintiff=s cause of action cannot accrue.

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

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


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

Under Evans, allegations that, due to the youth and inexperience of the plaintiff, or the discrepancy in perceived authority between victim and abuser, the plaintiff could not recognize the wrongfulness of the touching 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

The direct and specific pleading rule argued by Defendants for fraud is mitigated where the following circumstances are present: 1) Ait appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy@; 2) practicality; and 3) the realistic setting of the case. Committee on Children=s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217, 219 (children not expected to recall specific advertisement that lead them to desire a product). The Arequirement of specificity is relaxed when the allegations indicate that >the defendant must necessarily possess full information concerning the facts of the controversy [citations omitted], or >when facts lie more in the knowledge of the opposite party.@ Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 158. Even with the discovery and investigation conducted by plaintiff=s counsel in prior lawsuits, there can be no dispute that facts related to Defendants’ concealment or failure to disclose knowledge of their perpetrators’ tendencies to abuse children are far more available to Defendants than Plaintiff.

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

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

Marketing West v. Sanyo Fisher (USA) (1992) 6 Cal.App.4th 603, 613. ADeceit may be affirmative or negative. Affirmatively, it is a false statement. Negatively, it includes the suppression of a fact by a person who is obligated to disclose it.@ Nussbaun v. Weeks (1989) 214 Cal.App.3d 1589, 1594. AA duty to disclose known facts arises when the party having 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.2d 329, 337-38).
Notwithstanding the relaxed pleading requirements, the FAC is replete with allegations of intent by the Franciscans to conceal and suppress allegations of abuse by the perpetrators, including plaintiff=s perpetrator. See FAC, page 12: 16-26, page 16: 18-24. These allegations include the Ahow, when, where, to whom and by what means@argued for by defendants. Additionally, the FAC sufficiently pleads constructive fraud, which does not require fraudulent intent. See Engalla v. Permanente Med. Group (1997) 15 Cal.App.4th 951, 981 n.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 of the FAC into the 13th cause of action. Thus, the misrepresentations and reliance are stated in detail, and the 13th cause of action is properly pled.

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

Finally, under the 3 year statute of limitations for fraud set forth in Code of Civil Procedure section 338(d), the causes of action for fraud, and emotional distress based thereon, related to the 2007 misrepresentations are timely.

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

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

See FAC Paragraphs 43-44 and 54-55. Conversely, the plaintiff in Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257 relied solely on her piety to establish the confidential relationship. Richelle L., 106 Cal.App.4th at 280. Accordingly, because Plaintiff has alleged a confidential relationship based in large part on her youth, and that is not predicated solely on the nature of Plaintiff=s religious faith, nor on the Perpetrator=s status as a Franciscan, the existence of such a relationship is a question of fact that cannot be decided 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

Whether Defendants had an educational program regarding child abuse in place during the period of abuse is presumptively within the knowledge of Defendants.

Additionally, plaintiff incorporates by reference the duty analysis set forth at page 8. Under the facts alleged in the FAC, Defendants had a duty to warn, train and educate Plaintiff. Juarez, 81 Cal.App.4th at 402. To the extent the Court agrees 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

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

FAC, p. 12, lines 8-11. There is no claim of Apastoral malpractice@ in the allegations setting forth her reason for contacting the Franciscans. Id. Nor is there any such allegation in either of the emotional distress counts. FAC, && 61- 70. To the contrary, the allegations in those counts are purely secular in nature. Following Defendants’ flawed logic, a victim who reports her sexual abuse by a hospital employee to hospital administrator has sought medical treatment just by making such a report. The fact plaintiff reported her abuse to an employer who happened to be a religious brother does not render the contact pastoral. Defendants have simply taken it upon themselves to rewrite the emotional distress counts to fit the defense they seek to raise. The lone case Defendants cite in support of their argument, Nally v. Grace Community Church, (1988) 47 Cal.3d 278, further illustrates why plaintiff=s emotional distress counts are not claims for clergy malpractice. The plaintiffs in Nally were the parents of a young church member who committed suicide while participating in his church=s pastoral counseling program. Id. at 284. Here, while plaintiff was a practicing Catholic at the time of the abuse, it has been 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 the employer could help identify the abuser.
Recognizing that the pastoral 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 the 2007 misrepresentations are not entitled to the protection of that privilege.

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

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

Defendants take creative license and rewrite the allegations of Plaintiff's complaint to fit their argument. Specifically, Defendants argue the business practice Plaintiff seeks to enjoin is the sexual abuse of Plaintiff. 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 of action is irrelevant as the primary goal of this cause of action has always been to end these business practices via injunctive relief.

Finally, the subject cause of action is based on Defendants’ continuing business practices with regards to their employees who abuse children, and not just on the abuse of plaintiff as argued by Defendants. As set forth in the allegations Defendants now ask this Court to strike from the FAC, plaintiff has ample evidence, and expects to develop even more through discovery, that Defendants continue to place today=s children at risk through these practices.

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Plaintiff seeks to end these practices through injunctive relief pursuant to this and the Public Nuisance causes of action
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Accordingly, Plaintiff's complaint was filed well within the 4-year statute of limitations 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.

See White v. Ultramar, (1999) 21 Cal.4th 563, 571 (discussing these three concepts); Murillo v. Rite Stuff Foods, Inc., (1998) 65 Cal.App.4th 833, 852 (failure to terminate after notice of wrongdoing is evidence of ratification).

Defendants rely solely on Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453, 1461 to support their argument Defendants have no vicarious liability. This reliance is misplaced.

While in 1986 it might have defied every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop of the Roman Catholic Church, twenty-two years of clergy-abuse litigation later it has become tragically clear sexual abuse by Catholic priests and brothers has been far too common an occurrence, especially with the Franciscans.

Defendants ignore analysis in Rita M. that, when applied to the facts of this lawsuit, make it clear these defendants can and should be held vicariously liable:

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

Id.

Here, plaintiff has alleged there were at least 10 or 15 instances where the perpetrator induced her to strip naked in the presence of at least one other Franciscan, including one incident in which a third Friar and apparent hierarchy member walked in on such abuse.

See FAC, Para. 7. The perpetrator=s abuse of plaintiff, however, continued. Id. Plaintiff also has alleged that Franciscan perpetrators have sexually assaulted no less than 60 Santa Barbara children since 1936. FAC, Para. 8.

And plaintiff has alleged the Franciscans have, as with plaintiff, been receiving notice of this abuse since at least 1964 but allowed it to continue.

Plaintiff will allege all of these facts in greater detail if necessary, but respectfully submits these facts as alleged provide ample basis Ain this instance@ for imputing liability to the Franciscans 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 is inappropriate at this time, and should not be decided on demurrer.

7. The 14th Cause Of Action For Premises Liability
It has long been established that landowners and/or business proprietors have a Aduty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.@ Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121. Numerous cases involving third party conduct have met the definition of foreseeably dangerous activities giving rise to premises liability.
An attack in a hospital parking lot where emergency room operations in a high crime neighborhood drew persons under the influence of drugs or alcohol. 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 which lacked 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 tenants had been attacked, but where the landlord failed to warn of this danger. 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 a hidden assailant where such was Adismally predictable.@ Constance B. State of Cal. (1986) 178 Cal.App.3d 200, 206-07. The law recognizes that a landowner can be liable for the intentional unlawful conduct of others. Here, the legal nexus is even closer because the individuals committing the criminal acts were Defendants’ employees.

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

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

In support they rely upon an inapposite case: Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004-05 (governmental tort claims action). This case does not stand for the proposition that a landowner cannot be held liable for reasonably foreseeable intentional criminal conduct that occurs on his or her property. In fact, it does not even address the issue of premises liability.
In the two cases cited by Defendants that reference premises liability B Juarez, 81 Cal.App.4th 377 and Eric J., 76 Cal.App.4th 715 B Defendants misconstrue the holdings. Contrary to Defendants’ suggestion that Juarez precludes premises liability where the plaintiff had been molested on Church property, Juarez actually holds that the plaintiff had not met the pleading requirements because:
[M]aterial facts [have not] been proffered by Juarez to support his cause of action against the Church alleging premises liability . . . Juarez does not claim there were facts that put or should have put the Church on notice of the molestation, nor does he claim the Church could have taken effective steps to the sexual molestation. [Instead,] Juarez implies that the Church was strictly liable for anything occurring on its premises. This is not the law in California.
Juarez, 81 Cal.App.4th at 413. Plaintiff=s case is not just distinguishable from Juarez, but the exact opposite in terms of allegations of notice to defendants. Unlike in Juarez, Plaintiff has alleged facts that put Defendants on notice not only of her molestation, but that of numerous other children at St. Anthony=s and the Mission. Plaintiff further alleges Defendants could have taken effective steps to prevent sexual molestation of plaintiff and these other children.

Defendants reliance on Eric J. is similarly misplaced. In addition to the fact Eric J. is an appeal from a motion for a nonsuit, the bases for premises liability that were missing in Eric J. are present in this case. Specifically, the Eric J. court noted the fact the property at issue were Ajust homes@ as opposed to businesses, that there was no activity on the property implicating liability, and that there was no entrustment of a child to any of the defendants. Eric J., 76 Cal.App.4th at 727. Here, St. Anthony=s and the Old Mission served both as a school and a parish, the latter attended by plaintiff and both open to the public.

Additionally, plaintiff was not 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 property implicating liability, with the first known abuse of a Santa Barbara child having taken place at St. Anthony=s during the 1936-37 school year.

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

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

By including section 266j in section 340.1's definition of Achildhood sexual abuse, the legislatures’ intent is clear. And the fact 266 and 11166 were not enacted until 1980-81 is irrelevant under either statutory or common law delayed discovery.

DATED: December 13, 2008

NYE, PEABODY, STIRLING & HALE

By:

TIMOTHY C. HALE
Attorneys for Plaintiff

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Kay here again.

Keep in mind, other states have similar Public Nuisance law, including Illinois where I was raped at age five. We now know Catholic priests sexually assaulted children in 'quite a few' places, to put it mildly. Allowing pedophiles to operate freely for decades, resulting in hundreds of thousands of victims, is probably grounds for public nuisance lawsuits such as the one going forward in Santa Barbara against numerous religious orders and archdioceses.

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By refusing to identify its pedophiles and notify the public of all their locations, the Catholic Church is creating an ongoing public nuisance -
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Onward -

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