Emens v. Cal. Catholic Conference

THOMAS EMENS, Plaintiff and Respondent, v. CALIFORNIA CATHOLIC CONFERENCE et al., Defendants and Appellants.

B297322

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

December 3, 2020

ORDER MODIFYING OPINION AND DENYING REHEARINGNO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on December 3, 2020, be modified as follows:

1. On page 14, bottom of the page, and continuing on to the top of page 15, the sentence that begins with "Here, it is undisputed" insert the phrase "or promptly" in between the words "previously" and "disclosed" so the sentence reads as follows:

Here, it is undisputed that a majority of the Church defendants for the first time publicly disclosed the names of priests credibly accused of sexual abuse after this lawsuit was filed; this first-time disclosure strongly suggests that those defendants had not previously or promptly disclosed those names and crimes, including to the authorities, in violation of California law.

2. On page 15, top of the page, delete the following sentence:

The Church defendants did not, in their reply, dispute the fact that they had not disclosed the priests on these lists to law enforcement.

3. On page 15, immediately following the sentence modified in point one above, insert the following language after the sentence ending with "in violation of California law" and before the sentence beginning with "Thus, whether it is deemed to be conceded or conclusively established":

Although a report of abuse to law enforcement is confidential (Pen. Code § 11167, subd. (d)(1)), the uncontested inference that the Church defendants violated their reporting duties (and, therefore, relinquished any "protected activity" shield), is dictated by the record. In their reply in support of their anti-SLAPP motion, the Church defendants neither refuted plaintiff's recounting of specific instances of delayed disclosures to law enforcementthat allowed some priests to flee from the country nor disputed plaintiff's assertion that they had not disclosed to law enforcement all of the priests whose names appeared in the public disclosures. Indeed, the San Bernardino Diocese's public disclosure itself revealed that, in several instances, the Diocese reported abuse to law enforcement long after learning of the abuse.

4. On page 15, the sentence beginning with "Thus, whether" insert "alleged" between "Church defendants'" and "failure"; and insert "all of" between "report" and "the prior crimes" so the sentence reads as follows:

Thus, whether it is deemed to be conceded or conclusively established, the Church defendants' alleged failure to report all of the prior crimes to the pertinent authorities is illegal as a matter of law and, thus, not "protected activity" within the meaning of the anti-SLAPP statute.

* * *

There is no change in the judgment.

Appellants' petition for rehearing is denied.

/s/_________

LUI, P. J.

/s/_________

CHAVEZ, J.

/s/_________

HOFFSTADT, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC723908)

APPEAL from an order of the Superior Court of Los Angeles County, Michelle Williams Court, Judge. Affirmed in part and reversed and remanded in part with directions.

McKool Smith Hennigan, J. Michael Hennigan, Lee W. Potts and Elizabeth S. Lachman for Defendants and Appellants The California Catholic Conference, Inc. and The Roman Catholic Archbishop of Los Angeles.

Weintraub Tobin Chediak Coleman Grodin, Paul E. Gaspari, Daniel C. Zamora and Brendan J. Begley for Defendants and Appellants The Roman Catholic Archbishop of San Francisco, The Roman Catholic Bishop of Monterey, and The Roman Catholic Bishop of San Jose.

McCormick Barstow and Mart B. Oller, IV for Defendant and Appellant The Roman Catholic Bishop of Fresno.

Foley & Lardner, Jeffrey R. Blease, David B. Goroff (pro hac vice) and Nicholas P. Honkamp for Defendant and Appellant The Roman Catholic Bishop of Oakland.

Sheppard, Mullin, Richter & Hampton, Alan H. Martin, Jason A. Weiss and Karin Dougan Vogel for Defendant and Appellant The Roman Catholic Bishop of Orange.

Greene & Roberts and Stephen J. Greene, Jr. for Defendant and Appellant The Roman Catholic Bishop of Sacramento.

Fullerton, Lemann, Schaefer & Dominick, Wilfrid C. Lemann and David P. Colella for Defendant and Appellant The Roman Catholic Bishop of San Bernardino.

Gordon Rees Scully Mansukhani, Manuel Saldana and M. Christopher Hall for Defendant and Appellant The Roman Catholic Bishop of San Diego.

Shapiro, Galvin, Shapiro & Moran, Adrienne M. Moran and Daniel J. Galvin, III for Defendant and Appellant The Roman Catholic Bishop of Santa Rosa.

Jeff Anderson & Associates, Michael J. Reck, Michael G. Finnegan; Arkin Law Firm and Sharon J. Arkin for Plaintiff and Respondent.

* * * * * * A man who was molested by a Catholic monsignor as a child sued various Catholic Church organizations in California to enjoin the Church's alleged policy of concealing and lying about the proclivities of its priests to sexually abuse children. The Church organizations filed a motion to dismiss the man's causes of action under the anti-SLAPP statute (Code Civ. Proc., § 425.16).¹ The trial court partially granted and partially denied the motion, striking some but not all of the allegations underlying the man's causes of action. The Church organizations appeal, arguing that the court should have dismissed the man's action in full. We largely affirm the trial court's rulings on the anti-SLAPP motion, but agree with the Church organizations that a remand for further proceedings on the man's currently pled causes of action would be futile in light of the trial court's unchallenged findings that those causes of action are fatally deficient. Accordingly, we direct the trial court to dismiss the currently pled causes of action in their entirety. However, on remand, the man should be given the opportunity to amend his complaint.

FACTS AND PROCEDURAL BACKGROUND

I. The Complaint

A. General allegations

On October 2, 2018, Thomas Emens (plaintiff) sued eleven subdivisions of the Catholic Church within California (namely,two Archdioceses and nine Dioceses)² as well as the California Catholic Conference (the Conference), which is the body that "coordinat[es], create[es], decid[es], and disseminat[es]" the policies to be followed by those subdivisions.³ Plaintiff alleged that all 12 defendants (collectively, the Church defendants) were "co-conspirators" that made collective "[d]ecisions" as "part of a cohesive and coordinated plan."

B. Alleged misconduct

Plaintiff alleges that the Church defendants have, "for decades," "endangered numerous children" by adopting and implementing "policies and practices of covering up" the criminal, sexual misconduct of their priests. Plaintiff specifically identifies what boils down to four such policies and practices:

(1) Failing to report sexual molestation crimes. Plaintiff alleges that the Church defendants have "fail[ed] to report known and/or suspected sexual abuse of children" by priests and other "agents" (a) "to the police and law enforcement," and (b) to "the proper civil authorities";

(2) Continuing to employ priests who have engaged in sexual molestation conduct. Plaintiff alleges that the Church defendants "have maintained and continue to maintain sexually abusive priests in employment despite knowledge or suspicions ofchild sex abuse," and do so by "transferring [those priests] to new locations";

(3) Deceiving the public, parishioners and prior victims of their priests' sexual abuse—through affirmative misrepresentations and concealment—about past and present sexual abuse by their priests. Plaintiff alleges that the Church defendants have assured prior victims of their priests' sexual abuse, their parishioners and the public in general that (a) the Church defendants have competently addressed the issue of sexual abuse by priests by adopting and implementing policies of promptly responding to sexual abuse allegations, reporting such allegations to the authorities and to the public, cooperating with resulting investigations, and disciplining offenders, (b) sexual abuse by priests is "a problem of the past," and (c) the Church defendants' programs for children, and the communities in which the priests live, are accordingly "safe[]" for children because the priests are "fit[] for employment in positions that include working with children." Plaintiff further alleges that these assurances amount to affirmative misrepresentations and concealment because, as noted above, the Church defendants continue to employ priests who have engaged in sexual abuse, continue to conceal their crimes from the criminal and civil authorities, and continue not to disclose information about those crimes to prior victims, their parishioners and the public;

(4) Attacking the credibility of victims of their priests' sexual abuse. Plaintiff alleges that the Church defendants make affirmative misrepresentations "attack[ing] the credibility of [the] victims of" their priests' prior sexual abuse.

C. Causes of action

Based on the above described conduct, plaintiff's complaint alleges claims for (1) public nuisance, and (2) civil conspiracy.⁴

As the basis for the public nuisance claim, plaintiff alleges that the Church defendants' practices constitute a public nuisance that is "injurious" to the "health, safety, and welfare of the general public" because those practices of "deception and concealment" "create[]" and "expose[]" "the public to . . . unsafe conditions" by placing "children . . . at risk of being sexually assaulted." Plaintiff further alleges that the Church defendants' practices were "specially injurious" to him because t...