S.C. Allows Sex Abuse Suit to Go Forward against Fresno Diocese

By Kenneth Ofgang
Metropolitan News-Enterprise
August 14, 2008

The California Supreme Court yesterday denied review of a Court of Appeal ruling allowing two men who claimed they were abused by a priest decades ago to sue the Fresno Diocese of the Roman Catholic Church.

By a vote of 6-1, the justices, who held their weekly conference yesterday in San Francisco, opted not to intervene in the litigation brought by George and Howard Santillan, brothers who claim they were abused by Msgr. Anthony Herdegen between 1959 and 1973. Justice Marvin Baxter was the lone member of the court who wanted to hear the case.

The high court also denied a request for depublication of the May 21 decision by this district's Div. Eight.

Knowledge Questioned

In its 2-1 decision, the lower panel held that while there is no direct evidence church officials knew of any molestations taking place at the church rectory in the Kern County community of Wasco, a triable issue exists as to whether such knowledge may be imputed to them based on the observations of a part-time parish employee.

The Santillans apparently did not tell each other or anyone else of the abuse until the 1980s, by which time the statute of limitations had expired.

They sued in 2003, however, under Code of Civil Procedure Sec. 340.1(c). The statute, which applies only to actions brought that year, revives time-barred claims against persons or entities for breach of a legal duty to protect children from sexual abuse if the defendant had notice that abuse had taken place and failed to take reasonable steps to prevent it from recurring.

The suit was brought in Sonoma Superior Court and assigned to Alameda Superior Court Judge Ronald Sabraw, along with other coordinated actions from around Northern California. Appeals in those cases are being centralized in this district.

The plaintiffs claim that the abuse took place behind closed doors, in the priest's bedroom at the rectory. They also charge that Herdegen's housekeeper, Barbara Zeilman, either knew what was happening or should have known, since she let the boys into the rectory and knew they were often alone with the priest in his room.

Alleged Confrontation

The plaintiffs' mother said she confronted Zeilman, who died before the suit was filed, in 1987 and that the elderly woman did not answer the allegations directly but just cried. The mother was Zeilman's hairdresser, both before and after the alleged confrontation, and said the housekeeper repeatedly told her "I'm sorry, I'm sorry," although she never gave details.

The plaintiffs took the deposition of Cardinal Roger Mahony, now the archbishop of Los Angeles, who was an official of the Fresno Diocese for much of the 1960s and 1970s.

He testified that during the period in question, a priest's practice of taking boys into his bedroom and closing the door would have raised "grounds for....suspicion" of sexual misconduct and that "if there was [a] well-founded suspicion of some problem, I would expect [the housekeeper] would have told somebody."

Summary Judgment

Sabraw granted the diocese's motion for summary judgment, reasoning that while Zeilman may have had actual or constructive knowledge of the abuse, such knowledge could not be imputed to the diocese for purposes of Sec. 340.1(c) because she was a low-level employee and there was no evidence that her job duties included reporting such abuse.

Justice Laurence Rubin, writing for the Court of Appeal, disagreed, saying the existence of such a duty may be inferred from Mahony's testimony.

While that testimony was ambiguous, the justice wrote:

"Mahony was asked whether he would have expected Zielman to report any suspicions to a 'higher level official.' Seen in that light, his response that he would have expected her to tell 'somebody' could be taken as a reference to somebody who was a higher level official of the Diocese. As for his expectation that Zielman would report any suspicions of sexual abuse to such a person, it is important to note that Mahony held various high level positions at the Diocese while much of the alleged abuse occurred. Viewed in that light, an inference could be drawn that his expectation was based on his knowledge of the duties of parish employees such as Zielman."

Justice Madeleine Flier concurred, but Presiding Justice Candace Cooper dissented.

Cooper cited literature stating that the vast majority of child sexual abuse went unreported during the years in question, causing the Legislature to tighten laws requiring certain persons to report abuse on pain of prosecution.

"Given the fact that the State of California found it necessary to impose criminal sanctions for failure to report suspected abuse by professionals in fields where the moral imperative to protect children was already extant within the obligations of the profession," Cooper wrote, "I find it difficult to rely on the slender thread of Mahoney's "expectation" that a part-time housekeeper would report suspected abuse to provide the factual foundation to proceed with this litigation."

The case is Santillan v. Roman Catholic Bishop of Fresno, 163 Cal.App.4th 4.

In other conference action, the justices:

•Agreed to decide the constitutionality of legislation limiting the amount of marijuana an individual may possess for medical purposes under Proposition 215, in the absence of a doctor's finding that the patient's needs require a greater amount. This district's Div. Three held in People v. Kelly, 163 Cal.App.4th 124, that the statute is unconstitutional because it amends Proposition 215 without a public vote.

•Agreed to decide whether Los Angeles International Airport is a public forum under the "liberty of speech clause" of the California Constitution. The Ninth U.S. Circuit Court of Appeals certified that question to the state court, saying it would be dispositive of an appeal in the long-running litigation between the Hare Krishna movement and city officials.

The Krishnas, joined by the Committee for Human Rights in Iran, claim that a city ordinance requiring permits for fund solicitations within the terminals and parking areas at the airport violates their free speech rights. The U.S. Supreme Court ruled in 1992 that LAX is a non-public forum for First Amendment purposes, and Senior U.S. District Judge Consuelo Marshall ruled in 2006 that the ordinance is valid under the state Constitution.

•Agreed to decide whether there was sufficient evidence to impose a street gang enhancement on three young men—two brothers and their cousin—convicted of raping a teenage girl in Ventura County. The Court of Appeal credited an Oxnard detective's testimony that while rape is frowned upon in Hispanic gang culture, a gang member would lose status by "not supporting other gang members when they're out committing crimes."

The case is People v. Albillar, 162 Cal.App.4th 935.


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