Ratcliff v. The Roman Catholic Archbishop of L.A. ( 2021 )

Filed 4/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CHARLES RATCLIFF, JR., et al. B302558
Plaintiffs and Respondents, (Los Angeles County Super.
Ct. No. 19STCV20138)
v.
THE ROMAN CATHOLIC
ARCHBISHOP OF LOS
ANGELES et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Elizabeth R. Feffer, Judge. Affirmed.
McKool Smith Hennigan, J. Michael Hennigan, Lee W.
Potts and Elizabeth S. Lachman for Defendants and Appellants.
Law Offices of Anthony DeMarco, Anthony M. DeMarco;
Esner, Chang & Boyer, Holly N. Boyer and Shea S. Murphy for
Plaintiffs and Respondents.
__________________________
Seven adults allege they were molested by a priest when
they were children. They brought suit against The Roman
Catholic Archbishop of Los Angeles and related entities
(Archdiocese or defendants), alleging it was vicariously liable for
ratifying the molestation and directly liable for its own
negligence in failing to supervise the priest. The Archdiocese
moved to strike the operative complaint under the anti-SLAPP
law (Code Civ. Proc., § 425.16), arguing that some of the acts by
which it purportedly ratified the molestation or failed to
supervise the priest constituted speech or litigation conduct
protected by the anti-SLAPP statute. We disagree; the gravamen
of the suit against the Archdiocese is not speech – it is the
molestation and failure to supervise. We therefore affirm the
trial court’s denial of the anti-SLAPP motion.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties
Plaintiffs are seven alleged molestation victims; some sued
in their own names, others preferred a “John Doe” designation.
As their identities were revealed in discovery, the Archdiocese
calls them all by their names in its briefs on appeal. In contrast,
plaintiffs continue the naming conventions of their complaint,
using names for some plaintiffs and John Does for others. In an
abundance of caution, and to aid readability, we refer to the
plaintiffs, in chronological order of alleged molestation, as Doe 1
through Doe 7.
Defendants are The Roman Catholic Archbishop of Los
Angeles, a corporation sole; the Archdiocese of Los Angeles
Education and Welfare Corporation; and three individual
Catholic churches where the molestation allegedly occurred (St.
Christopher, St. Mary, and St. Lawrence Martyr). At the time
2
the anti-SLAPP motion was granted, the trial court also
sustained with leave to amend the defendants’ demurrer, on the
grounds of lack of specificity. The trial court expressed concern
that the operative complaint was not clear as to which
complainant was alleging which cause against which defendant.
For our purposes and unless the context requires otherwise, it is
sufficient to refer to the defendants collectively as the
Archdiocese.
The priest who allegedly committed the molestation,
Father Christopher Cunningham, is not a named defendant.
This action alleges that the Archdiocese is liable for Father
Cunningham’s alleged acts of molestation.
2. The Facts as Alleged in the First Amended Complaint
The operative complaint is the first amended complaint.
The allegations paint the picture of an Archdiocese which was
willfully blind to its strong suspicions – and, perhaps, actual
knowledge – of Father Cunningham’s misconduct. Plaintiffs
allege that, rather than taking curative action in response to
suspicions of and accusations against Father Cunningham with
investigations, supervision, and limitation of his access to
children, the Archdiocese swept the charges under the proverbial
rug and simply reassigned Father Cunningham to another
parish, where he was free to molest again.
We discuss the allegations in some detail, with particular
attention to the allegations by which plaintiffs assert the
Archdiocese is liable for Father Cunningham’s acts of abuse and
molestation.1
1 As we shall discuss, the anti-SLAPP analysis has two
prongs – first, whether the complaint arises from protected
activity as described in the anti-SLAPP statute; and second,
3
A. The Archdiocese’s Preexisting Policy for the
Prevention of Child Molestation by Priests
By 1989, prior to Father Cunningham’s ordination, the
Archdiocese had received complaints that no less than 22 of its
priests had sexually molested children. It therefore “reduced to
writing its policies for the prevention of child molestation by its
priests,” and provided a copy to all priests. “The policy prohibited
priests: (1) having minors in their living quarters; (2) taking
minors on unchaperoned outings; [and] (3) tickling, wrestling,
kissing or hugging minors.”
Father Cunningham was ordained a priest in the
Archdiocese in 1990, when the written policy was in effect.
B. First Parish – Doe 1
Father Cunningham was first assigned to be an associate
pastor at St. Christopher. As alleged, “Soon after his arrival he
began wrestling minors, tickling them, and asking them to go
with him unchaperoned to movies and other fun activities.” This
was done openly on the school playground, visible to parish
employees.
One of the boys who received the attention of Father
Cunningham was 12-year-old Doe 1, whose mother worked at the
whether the plaintiff has established a probability of prevailing.
(Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1061 (Park).) We resolve this appeal on the first
prong – whether the allegations of the complaint arise from
protected activity. The evidence submitted by both parties
related to the second prong – whether the plaintiffs have a
probability of prevailing – is not relevant to the issue of whether
the complaint arises from protected activity. We nevertheless
include a detailed statement of the factual allegations in order to
provide context for our analysis of the first prong.
4
church. One day in 1991, when Father Cunningham was aware
that Doe 1’s mother was away on church business, Father
Cunningham went to Doe 1’s home. He went to the door and
asked for Doe 1’s mother; Doe 1 told Father Cunningham that his
mother was not home and Father Cunningham could not come in.
Father Cunningham entered anyway, and sat down on the sofa
next to the boy. Father Cunningham rubbed the boy’s back and
thigh, despite Doe 1’s attempts to move away. Father
Cunningham was interrupted by Doe 1’s mother, who had come
home early. She told Father Cunningham that he was not
permitted in their home without her permission. She reported
the conduct to a nun at the church and the church school’s
principal. Doe 1 also complained to the parish pastor. Father
Cunningham continued his prohibited interactions with young
boys unabated, “taking them to the movies, giving them gifts,
playing with them and tickling them.” Doe 1’s mother believed
this was “sexualized conduct” and that he was “grooming young
boys.”
C. Second Parish – Does 2, 3 and 4
In 1994, Father Cunningham was assigned as an associate
pastor at St. Mary. That year, the Archdiocese updated its policy
for the prevention of child molestation; now, the policy required
any priest who became aware of a fellow priest’s violation of the
policy to confront the violator and report the violation to the
Vicar for Clergy.
According to the complaint, at St. Mary’s, Father
Cunningham continued to violate the policy – he spent
“extraordinary amounts of time alone with teen boys.” He took
them to the movies or for ice cream one-on-one; he wrestled them;
he hugged them; he had them alone in his rectory bedroom.
5
Parish staff observed Father Cunningham’s conduct with the
boys. The church pastor was aware that Father Cunningham
had boys one-on-one alone with him in his rectory bedroom; the
pastor informed parish staff that Father Cunningham was not
allowed to have minors alone with him in his rectory bedroom.
One of these boys was Doe 2 – Father Cunningham
regularly wrestled with him and spent time with him alone in his
rectory bedroom. At least one other priest, Father Gleason,
“expressed concern” about Father Cunningham bringing Doe 2
into the rectory. There were two incidents in which Father
Cunningham wrestled with Doe 2 until one of Doe 2’s family
members stopped the wrestling when they believed the physical
contact was inappropriate. In one such incident, Father
Cunningham’s groin was pressing against the child’s rear end.
When Doe 2 was 12 or 13, Father Cunningham took him alone to
the movies and, during the movie, massaged the boy’s genitals
with his hand. Sometime later, he invited Doe 2 to his rectory
bedroom. There, he told the boy that the Holy Spirit had a
special connection with them and that was why they had a
special way of showing affection, which nobody else could
understand – Father Cunningham was groping the boy as he said
this, and continued to engage in further sexual conduct. Doe 2
did not report this because Father Cunningham “was his friend
and priest, because he believed him, because he loved him and
trusted him.”
Doe 3 worked in the parish office. Father Cunningham
wrestled with Doe 3 in his rectory bedroom. Father Gleason, the
priest who had “expressed concern” about Father Cunningham
bringing Doe 2 into the rectory, warned Doe 3 “not to trust
Father Cunningham.” Shortly after this warning, Father
6
Cunningham came into the office where Doe 3 was working alone
and molested him by touching his genitals.
Doe 4 was an altar server at St. Mary’s. Father
Cunningham molested him as well, hugging him, caressing his
lower back, and putting his fingers inside Doe 4’s pants. Doe 4,
who was then 15, felt like Father Cunningham was making a
sexual advance and he felt trapped. He told his mother that he
did not want to be around Father Cunningham anymore. His
mother agreed that he need not be. She then paid more attention
to Father Cunningham and learned that he invited many boys
out one-on-one. She suspected that he may be acting
inappropriately with the boys.
Plaintiffs also alleged that Father Miskella, another priest
at St. Mary’s, wrote an evaluation in which he characterized
Father Cunningham as too “immature.” Immature “has been a
code word used by Catholic Clergy for many years to describe a
priest who spends too much time with minors and who is possibly
sexually abusing them.” Father Miskella also confidentially
informed the Vicar for Clergy that he should speak with Father
Gleason about Father Cunningham. Father Miskella concluded
that Father Cunningham “is not mature enough to be a pastor.”
There is no indication that “any effort was made to discuss with
Father Gleason his concerns or thoughts regarding Father
Cunningham.”
In 1998, a new priest became the administrator at St.
Mary. Having learned that Father Cunningham had an
underage boy in his rectory bedroom, the administrator counseled
him not to do this. He also reported to the Archdiocese that
“Father Cunningham was immature and had instances of
imprudent conduct.” There was no follow-up.
7
In 1999, a complaint was made to the Vicar for Clergy that
Father Cunningham had molested a minor (not one of the
plaintiffs here). The Vicar for Clergy subsequently acknowledged
that complaint in a letter, which also stated that “all such records
were going to be maintained permanently” by the Archdiocese,
but those records are presently missing. There is no record that
the Archdiocese conducted any investigation into the complaint.
D. Third Parish – Does 5, 6 and 7
In 1999, Father Cunningham was transferred to St.
Lawrence Martyr, still as an associate pastor. He immediately
resumed “taking underage parish boys on unchaperoned outings,
wrestling them, tickling them, hugging them, and having them in
his rectory bedroom.” All of this conduct was known to parish
priests.
Doe 5 was a student at St. Lawrence Martyr; Father
Cunningham sexually abused him on multiple occasions on
school grounds and during school activities – including, at one
point, reaching into the boy’s gym shorts and touching his
genitals. Doe 5 told his mother that Father Cunningham was
“harassing” him. His mother reported this to church staff, but
nobody followed up on Doe 5’s complaints with him, and Father
Cunningham’s behavior continued unchecked. When the school
year ended, Doe 5 and his mother stopped attending that church.
The head pastor, Monsignor Lenihan, telephoned and apologized
to Doe 5’s mother for Father Cunningham’s conduct, explaining
that he “was immature and that he had maturity issues.”
The complaint alleged that Does 6 and 7 were also molested
by Father Cunningham at St. Lawrence Martyr. It began with
wrestling, hugging, and tickling, and escalated to Father
Cunningham having the boys alone in his rectory bedroom where
8
he “sexually molested them in significant ways.” This behavior
continued until shortly before Father Cunningham left the parish
in 2001. Parish staff members were aware that Father
Cunningham had underage boys alone in his rectory bedroom; at
least one parish staff member reported this to the head pastor,
Monsignor Lenihan. Instead of taking action to address the
complaint, Monsignor Lenihan “actively championed” Father
Cunningham and supported him so that he would be promoted
from associate pastor to pastor of his own parish.
E. Aftermath
In 2001, Father Cunningham was promoted to pastor and
assigned to another parish. He allegedly continued his
inappropriate conduct with boys. In 2004, he was assigned to yet
another parish, and his molestation continued. Finally, after he
was discovered (on a group trip to Europe) alone in a hotel room
with a boy, holding the boy’s belt in his hands, Father
Cunningham took a leave of absence from his position.
In 2008, Father Cunningham was listed on an Archdiocese
document as “having a credible allegation of child sexual abuse
having been made against him.”
Plaintiffs also alleged that in 2015, another victim of
Father Cunningham’s – who is not a plaintiff in this action and
whom we refer to as Roe – brought suit against Father
Cunningham. In 2017, the Los Angeles County Sheriff
Department began a criminal investigation into complaints
against Father Cunningham. The Archdiocese had continuously
paid for Father Cunningham’s maintenance and support since
2005, and did not stop in response to Roe’s civil suit or the
criminal investigation. The Archdiocese paid for lawyers to
defend him, hired an investigator to “dig up dirt” on his victims,
9
paid for Father Cunningham to fly to Los Angeles to attend
depositions of the victims “in an attempt to intimidate them and
silence them,” and tried to sway the prosecution away from
bringing charges. In January 2019, the Archdiocese settled the
civil action brought by Roe for “a life-changing” sum.
3. The Complaint
Plaintiffs filed their original complaint in this case on
June 10, 2019.2 The first amended complaint was filed one
month later. The complaint states three causes of action,
although only the first two are at issue on this appeal.3
Before proceeding to the formal causes of action, the
complaint sets forth the lengthy history of Father Cunningham’s
abuse of minors within the church, including his specific
molestation of the seven plaintiffs. We have summarized those
allegations above. The complaint also includes general
allegations that the Archdiocese, through its “agents and
managing agents, knew of prior complaints that Father
Christopher Cunningham had sexually molested a minor(s), prior
to the end of his abuse of Plaintiffs. [The Archdiocese] through
[its] agents and managing agents, knew or had reason to know
that Father Christopher Cunningham routinely violated rules of
Defendants that were designed to prevent child molestation by
2 Some of the plaintiffs in this action had previously filed
separate actions, which they then voluntarily dismissed without
prejudice, prior to bringing this action.
3 The third cause of action was for violation of civil rights
under the Unruh Civil Rights Act. (Civ. Code, § 51.) In response
to the defendants’ demurrer, plaintiffs agreed to withdraw this
claim. Ultimately, plaintiffs orally dismissed the Unruh Act
cause of action with prejudice.
10
clergy.” It further alleges that Father Cunningham was a “priest,
employee and an agent” of the Archdiocese when he met the
plaintiffs and abused them. It alleges that, at all times, the
Archdiocese, “employed, supervised and controlled the
employment as a priest of” Father Cunningham, as well as the
other employees and agents at the churches where he worked.
The first cause of action is for “Child Sexual Abuse/Sexual
Battery.” It alleges that the Archdiocese is vicariously liable for
the sexual abuse committed by Father Cunningham because it
both authorized and ratified the abuse. Plaintiffs alleged that
the Archdiocese “ratified and/or approved of the sexual
misconduct by failing to adequately investigate, discharge,
discipline or supervise” Father Cunningham. They allege the
Archdiocese further ratified the abuse by “concealing evidence of
sexual abuse of other children by” Father Cunningham from
plaintiffs, their families, law enforcement, and other Archdiocese
personnel “who could have been in a position to prevent the abuse
of Plaintiffs” if they had known of the prior complaints.
The complaint alleged, “Defendants have routinely over the
years failed to discipline, investigate or terminate known child
molesting priests. Instead, Defendants condoned the conduct of
priests molesting children by protecting offending clerics from
public scorn and civil authorities, often transferring them from
town to town, county to county, state to state, and country to
country, all to allow child molesting priests to escape prosecution
and protect their reputations, as well as the reputation of the
Defendants. By doing so, Defendants have systematically
encouraged and condoned this conduct by more priests including
Father Christopher Cunningham.”
11
In support of this claim, the complaint expressly relied on
the fact that, upon learning of Roe’s civil complaint against
Father Cunningham and the criminal investigation, the
Archdiocese stood by Father Cunningham by paying for his
personal lawyer and supporting his defense.
The second cause of action is for negligence. Plaintiffs
alleged that the Archdiocese had a special relationship with the
children entrusted to its care, which gave rise to a duty to protect
them from harm. Plaintiffs alleged, “Defendants, by and through
their agents, servants and employees, knew or reasonably should
have known of Father Christopher Cunningham’s dangerous and
exploitive propensities and/or that Father Christopher
Cunningham was an unfit agent. It was foreseeable that if
Defendants did not adequately exercise or provide the duty of
care owed to children in their care, including but not limited to
the Plaintiffs, the children entrusted to Defendants’ care would
be vulnerable to sexual abuse by Father Christopher
Cunningham.”
Plaintiffs alleged that defendants breached this duty of
care by allowing Father Cunningham “to come into contact with
the minor Plaintiffs without supervision; by failing to adequately
supervise, or negligently retaining Father Christopher
Cunningham who they permitted and enabled to have access to
Plaintiffs; by failing to investigate or otherwise confirm or deny
such facts about Father Christopher Cunningham; by failing to
tell or concealing from Plaintiffs, Plaintiffs’ parents, guardians,
or law enforcement officials that Father Christopher
Cunningham was or may have been sexually abusing minors;
and/or by holding out Father Christopher Cunningham to the
12
Plaintiffs and their parents or guardians as being in good
standing and trustworthy.”
Next, plaintiffs alleged that the Archdiocese had a duty “to
educate, train and warn” plaintiffs “regarding prevention,
detection and reporting of child abuse” to help safeguard them,
but failed to do so. Plaintiffs also alleged a breach of duty arising
from the Archdiocese’s decision to give copies of its written
policies for the prevention of child molestation only to priests.
The Archdiocese also had a duty to provide the policies to
nonpriest parish staff and parents in the community, people who
could have reported that Father Cunningham was routinely
violating these policies.
Finally, plaintiffs alleged that a number of parish staff
members who witnessed Father Cunningham’s suspicious
conduct were mandated reporters under Penal Code section
11165.7, but the Archdiocese violated its obligation under the law
to educate them about their reporting duties – a violation which
was a proximate cause of plaintiffs’ abuse.4
4. The Demurrer
On August 29, 2019, defendants demurred. The demurrer
raised numerous grounds, including misjoinder of plaintiffs,
misjoinder of defendants, and failure to state a cause of action.5
4 Mandated reporters under Penal Code section 11165.7
include teachers, teacher’s assistants, private school
administrative officers, clergy members, and custodians of
records of clergy members.
5 Although we refer to the defendants collectively as “the
Archdiocese,” the complaint was filed against a number of
different defendants, and the defendants argued as part of their
demurrer that several of them were improperly named because
13
Plaintiffs opposed the demurrer. The trial court heard the
demurrer and anti-SLAPP motion together.
5. The Anti-SLAPP Motion
On September 25, 2019, the Archdiocese filed its anti-
SLAPP motion.
A. Overview of Anti-SLAPP Motions
An anti-SLAPP motion presents a means by which a
defendant, sued for conduct in furtherance of the constitutional
right of petition or free speech, can place the burden on a plaintiff
to establish that there is a probability of prevailing on the claim
or face early dismissal of the action. (Code Civ. Proc., § 425.16,
subd. (b)(1).) If the defendant first establishes a prima facie
showing that a claim is based on so-called “protected activity,”
the burden switches to the plaintiff to establish the lawsuit has
at least minimal merit. (Park, supra, 2 Cal.5th at p. 1061.)
Before a court can proceed to the second prong, the moving
defendant must satisfy the first prong – that is, establish that the
cause of action arises from protected activity, as the term is
defined by statute. Code of Civil Procedure section 425.16,
subdivision (e) is the operative provision and describes four
categories of protected speech and conduct: “(1) any written or
oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law, (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official
proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in
the complaint did not specifically identify what each defendant
purportedly did to be liable to each plaintiff.
14
connection with an issue of public interest, or (4) any other
conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection
with a public issue or issue of public interest.”
B. Defendants’ Anti-SLAPP Motion
Here, the Archdiocese’s anti-SLAPP motion argued that the
complaint was based on both protected speech and litigation
conduct.
As to the first cause of action for sex abuse, the Archdiocese
argued that the only allegations against it were its support of
Father Cunningham in Roe’s civil action and the sheriff’s
criminal investigation – conduct it argued was all protected
litigation activity.
As to the negligence cause of action, the Archdiocese
focused on a handful of allegations from plaintiffs’ complaint
which could be characterized as speech – or, more precisely, the
decision not to speak – on an issue of public interest, and argued
that those allegations were, in fact, the basis of the complaint
against it. Those allegations were: (1) the failure to inform
parish communities about allegations of abuse against Father
Cunningham and instead holding him out as trustworthy; (2) the
failure to communicate the Archdiocese’s policy for the prevention
of molestation to nonpriest staff and members of the community;
(3) the failure to educate, train and warn plaintiffs about sex
abuse; and (4) the failure to inform staff who were mandated
reporters about their duties as mandated reporters under the
law.
C. Plaintiffs’ Opposition
Plaintiffs’ opposition to the motion argued that the speech
and petitioning conduct identified in the Archdiocese’s motion
15
was merely supporting evidence of the Archdiocese’s vicarious
liability, not the tortious acts on which the complaint was based.
Plaintiffs argued the complaint was about conduct: Father
Cunningham’s sexual abuse and the Archdiocese’s “failures to
take appropriate steps to prevent that abuse.”
As to the first cause of action, plaintiffs argued that the
Archdiocese’s payment of Father Cunningham’s attorney fees was
merely evidence of the Archdiocese’s ratification of his
molestation. But it was the ratification itself that was actionable.
Plaintiffs explained that the Archdiocese was aware of Father
Cunningham’s molestation and routine violation of its policies for
the prevention of molestation. Plaintiffs argued that, despite
that knowledge, the Archdiocese ratified Father Cunningham’s
conduct by its failure to “investigate, discipline or better
supervise him,” its “withholding of or destruction of records of
complaints,” its “promotion of Father Cunningham after such
complaints,” and its “support of him financially throughout.”
Plaintiffs argued that their negligence cause of action was
based on multiple theories, including negligent supervision and
retention of Father Cunningham, which is not protected speech
or litigation activity. To the extent it was also based on negligent
failure to comply with mandatory reporter statutes and a
negligent failure to educate, train, or warn, plaintiffs argued that
inaction does not rise to the status of protected conduct.
D. The Archdiocese’s Reply
In reply, the Archdiocese acknowledged that plaintiffs took
the position that the conduct on which they based their first
cause of action was the molestation itself. But, they responded,
“[t]hat, however, is contrary to the allegation that the acts that
make the Archdiocese liable ‘in the present case’ are actions in
16
the prior [Roe] litigation. [Citation.] There is no claim against
Cunningham in this case. The allegations regarding
Cunningham and molestation are ‘Background Facts.’ [Citation.]
The alleged ‘liability-creating activity’ of the Defendants for
ratification is acts in furtherance of the right to petition the
Court.”
As to negligence, the Archdiocese re-asserted that the
negligence claims arose out of protected speech, and more
precisely, its decision to not speak.
E. Hearing, Ruling and Appeal
After spirited argument, the trial court stated that, when
focusing on the allegations of the complaint, “[t]his case is really
about, allegation-wise, a failure to properly investigate and train
and report acts of child abuse and at what level there should
have been training, at what level there should have been
reporting.” The court rejected the Archdiocese’s argument that
the first cause of action arose from its litigation conduct,
concluding, “it’s clear that plaintiffs’ cause of action for sexual
assault and sexual battery is based upon and seeks to recover
damages for Father Cunningham’s improper sexual conduct
related to the plaintiffs,” and the Archdiocese’s vicarious liability
for it. Accordingly, the court concluded the complaint did not
allege conduct protected by the anti-SLAPP law.
As to the cause of action for negligence, the court found
that it alleged a breach of duty of care by allowing Father
Cunningham to come into contact with the plaintiffs without
adequate supervision, negligently retaining him, failing to
investigate allegations of misconduct, concealing from plaintiffs,
their parents and law enforcement that Father Cunningham was
or may have been sexually harassing children, and holding
17
Father Cunningham out as trustworthy. While the court
recognized there may be speech, or lack of speech, involved, the
court believed that, viewed in its entirety, the gravamen of the
cause of action was not protected conduct. The anti-SLAPP
motion was denied.6
The court then turned to the demurrer, and sustained it on
several grounds with leave to amend.7
The Archdiocese filed a timely notice of appeal from the
denial of its anti-SLAPP motion.
6 On appeal, the Archdiocese characterizes the trial court’s
ruling as follows: “Even though it found that no claim was
legally sufficient, it denied the motion because it disapproved of
the petitioning and speech activities involved.” The suggestion
that the court based its ruling on anything other than an
application of the law to the facts alleged has no place in the
Archdiocese’s opening brief (see Bus. & Prof. Code, § 6068,
subd. (c)) and, equally to the point, is unsupported by the record.
7 The trial court’s ruling on the demurrer was as follows:
“The Demurrer is OVERRULED on commonality ground.
The Demurrer is SUSTAINED as to specificity ground. The
Court sustains the demurrer as to the 4th, 8th to 16th causes of
action. The Court overrules the demurrer as to 1st, 2nd, 3rd, 5th,
6th, 7th, and 17th causes of action.
“The Court grants 30 days leave to amend. Counsel are to
meet and confer on the issue.”
By “causes of action,” we presume the court was referring
to the multiple enumerated grounds expressly asserted in the
demurrer; the complaint had only three causes of action, one of
which plaintiffs dismissed.
The parties disagree whether the court’s ruling reflected its
view of the substantive merits of the complaint. As the ruling on
the demurrer is not before us on appeal, we express no opinion.
18
DISCUSSION
1. Standard of Review
“We review de novo the grant or denial of an anti-SLAPP
motion. [Citation.] We exercise independent judgment in
determining whether, based on our own review of the record, the
challenged claims arise from protected activity. [Citations.] In
addition to the pleadings, we may consider affidavits concerning
the facts upon which liability is based. [Citations.] We do not,
however, weigh the evidence, but accept plaintiff’s submissions as
true and consider only whether any contrary evidence from the
defendant establishes its entitlement to prevail as a matter of
law. [Citation.]” (Park, supra, 2 Cal.5th at p. 1067.)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim. [Citation.] Critically,
‘the defendant’s act underlying the plaintiff’s cause of action must
itself have been an act in furtherance of the right of petition or
free speech.’ [Citations.]” (Park, supra, 2 Cal.5th at pp. 1062-
1063.) “To determine whether a claim arises from protected
activity, courts must ‘consider the elements of the challenged
claim and what actions by the defendant supply those elements
and consequently form the basis for liability.’ [Citation.] Courts
then must evaluate whether the defendant has shown any of
these actions fall within one or more of the four categories of
‘ “act[s]” ’ protected by the anti-SLAPP statute. [Citations.]”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)
We consider separately the extant two causes of action
alleged in the complaint.8
8 Under Baral v. Schnitt (2016) 1 Cal.5th 376, 392-393, a
defendant may direct an anti-SLAPP motion to a distinct claim
based on allegations of protected activity within single a cause of
19
2. First Cause of Action – Child Sexual Abuse/Sexual
Battery
Plaintiffs’ first cause of action is for child sexual
abuse/sexual battery, and alleges the Archdiocese is liable for
Father Cunningham’s molestation of plaintiffs due to its
authorization and ratification of that conduct.
“ ‘As an alternate theory to respondeat superior, an
employer may be liable for an employee’s act where the employer
either authorized the tortious act or subsequently ratified an
originally unauthorized tort. [Citations.] The failure to
discharge an employee who has committed misconduct may be
evidence of ratification. [Citations.] The theory of ratification is
generally applied where an employer fails to investigate or
respond to charges that an employee committed an intentional
tort, such as assault or battery. [Citations.] Whether an
employer has ratified an employee’s conduct is generally a factual
question. [Citation.]’ [Citations.]” (C.R. v. Tenet Healthcare
Corp. (2009) 169 Cal.App.4th 1094, 1110-1111.) “A principal may
be liable when it ratifies an originally unauthorized tort.
action which alleges both protected and unprotected activity.
Here, although the notice of motion filed by the Archdiocese
suggested it was directed to individual allegations of protected
activity, the motion itself argued that the entirety of each cause of
action arose from protected activity. The Archdiocese does not
contend that plaintiffs alleged a mixed cause of action. Rather, it
contends, by selective citation to the complaint, that plaintiffs’
claims arise out of public statements and alleged nondisclosures.
On appeal, the Archdiocese cites Baral but not for the point that
the trial court should have granted the anti-SLAPP motion as to
certain allegations even if court was correct in denying the
motion as to other parts of the complaint.
20
[Citations.] And generally, the ratification relates back to the
time the tortious act occurred. [Citations.] As noted, ratification
may occur when an employer learns of misconduct and fails to
discharge an agent or employee. [Citations.]” (Id. at p. 1111.)
The Archdiocese argues that it has established the child
sexual abuse cause of action arises from protected activity
because it is based on the Archdiocese’s conduct in the Roe
litigation and sheriff’s investigation. We are unpersuaded for two
reasons. First, the argument is based on a mischaracterization of
the complaint. Second, it is without legal merit.
A. The Archdiocese Mischaracterizes the Complaint
The first amended complaint exceeds 50 pages. Before
reciting the causes of action, it sets forth, at great length, the
course of Father Cunningham’s employment with the
Archdiocese, his molestation of the plaintiffs, and the
Archdiocese’s failure to respond to the reports and suspicions of
victims, parents, priests, and other parish staff. Although the
specific allegations within that part of the complaint entitled,
“First Cause of Action [¶] Child Sexual Abuse/Sexual Battery”
encompass only four pages of the complaint, the first cause of
action incorporates by reference “all paragraphs of this
Complaint, as if fully set forth herein.”
The Archdiocese overlooks this salient incorporation by
reference, and asserts instead that the cause of action is limited
to the allegations of those four pages. It then dismisses the first
page of those allegations as “a string of generalizations.” Among
those allegations the Archdiocese finds dismissable are the
incorporation by reference paragraph, and the paragraph alleging
as follows: “For the reasons set forth in the incorporated
paragraphs of this Complaint, the sexual abuse of Plaintiffs by
21
Father Christopher Cunningham arose from, was incidental to
Father Christopher Cunningham’s employment with Defendants,
and each of these Defendants ratified or approved of Father
Christopher Cunningham’s sexual abuse of minors, including
Plaintiffs. Plaintiffs allege on information and belief that
Defendants ratified and/or approved of the sexual misconduct by
failing to adequately investigate, discharge, discipline or
supervise Father Christopher Cunningham or other priests
known by Defendants to have sexually abused children, or to
have been accused of sexually abusing children. Defendants and
each of them ratified Father Christopher Cunningham’s abuse by
concealing evidence of sexual abuse of other children by Father
Christopher Cunningham and other priests from Plaintiffs,
Plaintiffs’ parents, other families with children, law enforcement,
and personnel of Defendants who could have been in a position to
prevent the abuse of Plaintiffs and others if they had known of
complaints of Father Christopher Cunningham’s sexual abuse of
children, and prior complaints of other priests of sexual abuse of
children.”
Having excised from the complaint any allegations that do
not fit within its restrictive view of the pleading, the Archdiocese
argues that the only allegations of wrongful conduct against it
are those which arise from its defense of Father Cunningham in
the Roe lawsuit and the criminal investigation. The Archdiocese
asserts, “Neither the entirety of the Complaint nor Cunningham’s
conduct was the question presented to the Court. The alleged
basis for Defendants’ liability is the litigation activity that
ratified the abuse.”
We disagree. In our review of the anti-SLAPP motion we
do not ignore 23 pages of specific allegations of, among other
22
things: (1) Father Cunningham’s sexual abuse of plaintiffs;
(2) Father Cunningham’s repeated violation of the Archdiocese’s
policy to prevent molestation; (3) priests’ and other parish
employees’ knowledge of Father Cunningham’s violations of this
policy; (4) complaints by parishioners against Father
Cunningham; (5) statements acknowledging that Father
Cunningham was “immature” – the code for suspicions of
molestation; (6) repeated failures to investigate; (7) the
disappearance of files containing complaints about Father
Cunningham; and (8) the reassignments and promotion of Father
Cunningham that allowed the molestation to continue. We find it
is this conduct that forms the basis of the allegations against the
Archdiocese, not the selected allegations that ratification was
also evidenced by the Archdiocese’s defense of Father
Cunningham in the Roe case and the criminal investigation.
Because the Archdiocese chooses to ignore the bulk of the
allegations of the complaint against it, it makes no attempt to
argue that these actual allegations are protected activity under
the anti-SLAPP law.
B. The Argument Is Without Merit
The first cause of action is for child sexual abuse; there is
no allegation that the Archdiocese would be liable simply for its
litigation conduct in the absence of the sexual abuse the
Archdiocese allegedly ratified. Plaintiffs are not alleging, for
example, that the Archdiocese defamed them in motions in
limine, or that its payment of Father Cunningham’s defense costs
was an improper use of parishioners’ contributions. Plaintiffs are
alleging that this conduct is actionable only to the extent that it
evidences the Archdiocese’s ratification of Father Cunningham’s
molestation.
23
“[A] claim may be struck only if the speech or petitioning
activity itself is the wrong complained of, and not just evidence of
liability or a step leading to some different act for which liability
is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) Contrary to the
Archdiocese’s contention, plaintiffs’ sexual abuse claim does not
arise from its public statements and alleged nondisclosures.
Instead, the complaint’s allegations that the Archdiocese knew
that Father Cunningham violated policies to prevent molestation,
destroyed or hid files containing complaints about him, and
reassigned and promoted him to other parishes in which he
continued to molest children demonstrate that plaintiffs’ claims
of sexual abuse did not arise from public statements or
nondisclosure but from the Archdiocese’s role in abetting Father
Cunningham’s continuing abuse.
Not only is the litigation conduct on which the Archdiocese
focuses mere evidence of liability, it is evidence of the
Archdiocese’s ratification of the tort, not the tort itself (the sexual
abuse). When a plaintiff seeks to hold a defendant vicariously
liable for another party’s tortious conduct, the court’s anti-SLAPP
analysis focuses on the underlying tort, not the conduct by which
the defendant is allegedly vicariously liable. (See Simmons v.
Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1046-
1047 [hiring the party who committed the tort; tort governs for
anti-SLAPP purposes]; Spencer v. Mowat (2020) 46 Cal.App.5th
1024, 1037 [conspiring with the parties who committed the tort;
tort governs]; Novartis Vaccines & Diagnostics, Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th
1284, 1295-1297 [conspiring to commit the tort and ratifying it;
tort governs]; but cf. Contreras v. Dowling (2016) 5 Cal.App.5th
394, 399, 409-410 [attorney sued for conspiring with his client
24
merely by providing routine legal services; attorney’s conduct
governs].)
Here, then, the focus must be on the alleged acts of sexual
abuse and battery that form the basis of the tort cause of action,
not the acts of the Archdiocese by which it is alleged to be
vicariously liable for those acts. Those underlying tortious acts
are not protected activity.
3. Second Cause of Action - Negligence
A similar analysis defeats the Archdiocese’s argument that
the negligence cause of action is based on protected speech. Here,
a number of the plaintiffs were specifically alleged to have been
students at parish schools. We start with some basic rules about
the legal duty owed to school children.
“Ample case authority establishes that school personnel
owe students under their supervision a protective duty of
ordinary care, for breach of which the school district may be held
vicariously liable. [Citations.]” (C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 865.) Because of the
special relationship a school district and its employees have with
the students, the duty of care owed by school personnel includes
“the duty to use reasonable measures to protect students from
foreseeable injury at the hands of third parties acting negligently
or intentionally.” (Id. at pp. 869-870.) A “school district is liable
‘for the negligence of supervisory or administrative personnel
who knew, or should have known’ of the foreseeable risk to
students of sexual abuse by an employee and nevertheless hired,
retained, and/or inadequately supervised that employee.
[Citation.]” (D.Z. v. Los Angeles Unified School Dist. (2019)
35 Cal.App.5th 210, 223.)
25
A. The Archdiocese Mischaracterizes the Complaint
Prior to the complaint’s allegations of “Background Facts,”
plaintiffs alleged, by way of introduction, that in 2018, the
Archdiocese publicly apologized for child sexual abuse suffered at
the hands of priests, and represented that the Church needed to
be transparent about the perpetrators and vigilant in its
investigations of allegations of misconduct. The complaint goes
on to suggest, however, that this public statement of concern was
“very different from the way” the Archdiocese was actually
treating victims of abuse; similarly, the public statement of
vigilant investigations was contradicted by the Archdiocese’s
actual practice of hiding evidence and denying abuse.
Focusing on this introductory language, the Archdiocese
takes the position that the negligence cause of action “attempts to
craft a negligence claim out of an alleged conflict between the
Archdiocese’s positive public statements about its response to
accusations of abuse and alleged failures: to inform parish
communities and public authorities that Cunningham ‘may have
been’ abusing minors, to publish Priests’ policies to non-Priests
and to inform staff about mandated reporters’ duties.” By linking
selected allegations of the negligence cause of action to the
“positive public statements,” the Archdiocese argues that the
cause of action for negligence arises from its protected conduct in
furtherance of speech.
Once again, the Archdiocese engages in a selective reading
of the first amended complaint. The negligence cause of action
alleges, in successive paragraphs: (1) defendants had a duty to
protect plaintiffs; (2) Father Cunningham was able to molest
plaintiffs due to the access and authority he had as a Catholic
priest; and (3) the Archdiocese knew or should have known of
26
Father Cunningham’s “dangerous and exploitive propensities
and/or that Father Christopher Cunningham was an unfit agent.”
This is then followed by paragraph 120, which alleges,
“Defendants breached their duty of care to the minor Plaintiffs by
allowing Father Christopher Cunningham to come into contact
with the minor Plaintiffs without supervision; by failing to
adequately supervise, or negligently retaining Father
Christopher Cunningham who they permitted and enabled to
have access to Plaintiff[s]; by failing to investigate or otherwise
confirm or deny such facts about Father Christopher
Cunningham; by failing to tell or concealing from Plaintiffs,
Plaintiffs’ parents, guardians, or law enforcement officials that
Father Christopher Cunningham was or may have been sexually
abusing minors; and/or by holding out Father Christopher
Cunningham to the Plaintiffs and their parents or guardians as
being in good standing and trustworthy. As a Priest, Father
Christopher Cunningham was expected to minister to parish
families. Defendants acknowledged and expect that parish
priests should visit parishioners’ homes as part of their duties as
priests. Father Christopher Cunningham visited family homes
like Plaintiffs’ as part of his expected functions. Defendants
cloaked within the facade of normalcy Defendants’ and/or Father
Christopher Cunningham’s contact and/or actions with the
Plaintiffs and/or with other minors who were victims of Father
Christopher Cunningham, and/or disguised the nature of the
sexual abuse and contact.”
The Archdiocese disposes of this paragraph by saying it
“has a series of conclusory allegations strung together with an
ineffable ‘and/or.’ That Paragraph is immaterial and cannot
27
change the allegation that the activity giving rise to the claim for
relief is protected ‘failure to inform.’ ”
To the extent the allegations are conclusory, they are
reinforced by the specific allegations of fact in the preceding
pages of the complaint. The numerous allegations of nonspeech-
related negligent conduct – failure to supervise, negligent
retention, failure to investigate – which form the bulk of this
cause of action cannot be simply brushed away because the
Archdiocese would rather categorize this cause of action as
“failure to inform.”
The Archdiocese argues: “The only activity alleged here as
the basis for the negligent supervision theory is that Defendants
‘publicly purported’ to implement a policy of informing ‘parish
communities’ about accusations of abuse by a Priest but ‘never
informed’ parish communities that Cunningham had been
accused and failed to tell or concealed from ‘Plaintiffs, Plaintiffs’
parents, guardians, or law enforcement’ that Cunningham ‘was
or may have been’ abusing minors and/or holding out
Cunningham as being in good standing and trustworthy.
[Citations.] Everything else in Paragraph 120 is immaterial.”
In our view, the “failure to supervise” allegation is not
limited to failure to inform, but refers much more broadly to the
Archdiocese’s failure to supervise its employee who was
molesting children. For example, plaintiffs specifically alleged
that: (1) Father Gleason expressed concern that Father
Cunningham was bringing boys into the rectory and warned Doe
3 “not to trust” Father Cunningham; (2) Father Miskella
evaluated Father Cunningham as too immature to be a pastor
and confidentially informed the Vicar for Clergy that he should
speak with Father Gleason about Father Cunningham; but
28
(3) the Vicar for Clergy did not do so; and (4) these and other red
flags were ignored and Father Cunningham was free to continue
molesting children unsupervised. All of these allegations are
brushed aside in the Archdiocese’s effort to squeeze plaintiffs’
negligence cause of action into the realm of protected speech.
B. The Argument Is Legally Meritless
Even if we agreed that the negligence cause of action was
limited to allegations based on a failure to inform plaintiffs of the
danger presented by Father Cunningham, we would still
conclude the cause of action was not based on protected speech.9
As explained by our Supreme Court in Park, “a claim is not
subject to a motion to strike simply because it contests an action
or decision that was arrived at following speech or petitioning
activity, or that was thereafter communicated by means of speech
or petitioning activity. Rather, a claim may be struck only if the
speech or petitioning activity itself is the wrong complained of,
and not just evidence of liability or a step leading to some
different act for which liability is asserted.” (Park, supra,
2 Cal.5th at p. 1060, italics added.)
As we alluded to earlier, there may be some legal claims
involving child abuse that can be fairly said to be based on
protected activity and thus may properly be subject to anti-
SLAPP motions. To add another example, if a religious
institution were to inform its community of allegations that one
9 The Archdiocese argues that the complaint is not limited to
a failure to inform plaintiffs of the risk presented by Father
Cunningham, but also includes allegations of a failure to inform
nonpriest parish employees of the policy to prevent molestation
and a failure to inform mandated reporters of their statutory
duties. Our analysis is the same with respect to all three types of
failure to inform.
29
of its youth leaders was involved in an inappropriate sexual
relationship with a minor, and the accused sues the institution
for defamation, the cause of action arises from speech concerning
a matter of public interest. (Terry v. Davis Community Church
(2005) 131 Cal.App.4th 1534, 1539, 1546.)
This is consistent with Park; the tortious conduct in our
example is the making of the statement itself. But that does not
mean that when, as here, a church is sued for negligence for
failing to so warn its members, that the negligence cause of
action similarly arises from speech. In the defamation example,
it is the making of the statement itself which is alleged as the
injury-producing conduct. But in the case of a negligent failure to
warn, it is not the failure to speak which directly caused injury,
but the fact that the priest about whom warning should have
been made went on to molest children. The failure to warn is a
mere step leading to the molestation for which liability is
asserted.
This is particularly so here, where, despite the
Archdiocese’s argument to the contrary, the negligence cause of
action is not restricted to failure to inform. The failure to inform
is merely one element of an overall failure to supervise, which
failure is alleged to have also included failures to report
wrongdoing observed in violation of the Archdiocese’s own
policies; failures to document complaints when they were made;
and failures to investigate complaints when they were made.
Most critically, the complaint alleges that the Archdiocese knew
Father Cunningham was openly violating the Archdiocese’s
policies to prevent molestation, and the only response by his
supervisors was to counsel him not to do that – a response the
complaint alleges was clearly inadequate. While failure to inform
30
is a part of the Archdiocese’s failure to supervise Father
Cunningham, liability is based on the failure to supervise, not the
particular words unspoken.
4. The Ruling on the Demurrer Is Not Before Us
The Archdiocese argues that the trial court’s ruling
sustaining its demurrer with leave to amend is binding on our
analysis. Specifically, the Archdiocese suggests that the order
was appealable, and the plaintiffs’ failure to cross-appeal the
order renders it res judicata on the issue of whether their
complaint stated a claim and the likelihood that plaintiffs will
prevail on the merits under the second prong of the anti-SLAPP
statute. We disagree.
An order sustaining a demurrer with leave to amend is not
a final judgment and is not otherwise itemized among appealable
orders. (Code Civ. Proc., § 904.1.) The Archdiocese’s argument is
based on section 906, which provides, in pertinent part, “Upon an
appeal pursuant to Section 904.1 or 904.2, the reviewing court
may review the verdict or decision and any intermediate ruling,
proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from or which
substantially affects the rights of a party . . . .”
The Archdiocese argues that Code of Civil Procedure
section 906, renders the demurrer ruling not merely reviewable,
but appealable under Fontani v. Wells Fargo Investments, LLC
(2005) 129 Cal.App.4th 719 (Fontani), disapproved on other
grounds by Kibler v. Northern Inyo County Local Hospital Dist.
(2006) 39 Cal.4th 192, 203, footnote 5. Plaintiffs’ failure to
appeal the adverse ruling on demurrer, the argument continues,
means that plaintiffs are stuck with an adverse ruling on the
validity of its complaint.
31
In Fontani, the trial court denied an anti-SLAPP motion
and overruled the bulk of a demurrer. The defendant appealed
and the Court of Appeal reversed the denial of the anti-SLAPP
motion. The defendant asked that the appellate court also
address the order overruling part of its demurrer under Code of
Civil Procedure section 906. The court declined on the basis that
the demurrer ruling did not substantially affect the defendant’s
rights. (Fontani, supra, 129 Cal.App.4th at p. 736.) In the course
of its discussion, however, the court stated, “Section 906 does
allow for an appeal from an interlocutory order that involves the
merits of, or necessarily affects, an anti-SLAPP order from which
an appeal is taken. In other words, where the propriety of an
otherwise nonappealable order affects the validity of an anti-
SLAPP order, an appeal will lie from the otherwise
nonappealable order. (See City of Oakland v. Darbee (1951)
102 Cal.App.2d 493, 504 [227 P.2d 909] [otherwise nonappealable
order for separation reviewable on proper appeal from order for
transfer because validity of order for transfer depended on
validity of order for separation].)” (Ibid.) This dicta, on which
the Archdiocese relies, mischaracterizes section 906. Section 906
simply provides that, on appeal of an otherwise appealable order
or judgment, the court may review any intermediate ruling which
necessarily affects the order appealed from. It does not render an
otherwise nonappealable intermediate ruling appealable, and we
disagree with any language in Fontani which suggests
otherwise.10
10 The only case that Fontani cites in the passage quoted in
the text, City of Oakland v. Darbee, supra, 102 Cal.App.2d 493,
supports our conclusion. There, the plaintiff had brought an
eminent domain action against a number of defendants or groups
32
Even under the reviewable rule, the demurrer ruling in our
case is not reviewable. A second case cited by the Archdiocese,
Maranatha Corrections, LLC v. Department of Corrections and
Rehabilitation (2008) 158 Cal.App.4th 1075, 1084, illustrates
why.
Unlike the present appeal, the order sustaining the
demurrer in Maranatha Corrections preceded the order on the
anti-SLAPP motion, so at least as a theoretical matter, the
demurrer could have affected the subsequent anti-SLAPP ruling.
Here, the ruling on the demurrer did not affect, and could not
have affected, the order denying the anti-SLAPP motion: The
order on the demurrer came after the court had already denied
the anti-SLAPP motion.
of defendants, each of whom owned a different parcel of property
the city sought to condemn. One set of defendants successfully
moved to separate the proceeding against them and transfer it to
the county in which they resided. The plaintiff appealed the
appealable transfer order; but the separation order was not
appealable. The Court of Appeal concluded that the separation
order could nonetheless be reviewed on appeal from the transfer
order, as an intermediate ruling which necessarily affected the
transfer order. (City of Oakland, at pp. 504-505.) The issue was
one of reviewability, not ab initio appealability. The holding in
City of Oakland does not suggest that plaintiffs here could have
appealed the demurrer ruling or that the failure to do so had
some binding effect on the anti-SLAPP motion.
33
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. The
Archdiocese shall pay plaintiffs’ costs on appeal.
RUBIN, P. J.
I CONCUR:
KIM, J.
34
Charles Ratcliff, Jr., et al. v. The Roman Catholic Archbishop of
Los Angeles et al.
B302558
BAKER, J., Concurring
I agree the order denying defendants’ anti-SLAPP motion
should be affirmed because there has been no adequate showing
that any of the claims in plaintiffs’ complaint should be stricken
as arising from activity protected by the anti-SLAPP statute,
Code of Civil Procedure section 425.16. (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1060 [“[A] claim may be struck only if the speech or petitioning
activity itself is the wrong complained of . . .”] (Park).) I write
separately to explain I find it unnecessary, in reaching that
conclusion, to rely on a judgment about what constitutes the
“gravamen” of the lawsuit against defendants or to further
cement in anti-SLAPP jurisprudence the rationale advanced in
Spencer v. Mowat (2020) 46 Cal.App.5th 1024.
Our Supreme Court’s anti-SLAPP precedents hold we must
determine whether anti-SLAPP protected activity is at issue by
considering the elements of the claims asserted by a plaintiff and
examining the complaint to determine what actions by a
defendant provide the basis for that defendant’s asserted
liability. (See, e.g., Park, supra, 2 Cal.5th at 1063 [“I]n ruling on
an anti-SLAPP motion, courts should consider the elements of
the challenged claim and what actions by the defendant supply
those elements and consequently form the basis for liability”];
Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035-1036 (Ojjeh).)
At the same time, however, “[a]llegations of protected activity
that are “‘“merely incidental” or “collateral”’ or that ‘merely
provide context, without supporting a claim for recovery, cannot
be stricken under the anti-SLAPP statute.’” (Ojjeh, supra, 43
Cal.App.5th at 1036, citing Baral v. Schnitt (2016) 1 Cal.5th 376,
394.)
Here, the basis for defendants’ liability is predicated, in
essence, on acts that plaintiffs believe amount to authorization or
ratification of child sexual abuse and on various repeated alleged
failures of supervision (including failure to investigate complaints
of abuse and to take appropriate corrective action). In describing
the factual predicate for such liability, the operative complaint
does at times refer to activity that would be protected under the
anti-SLAPP statute—most prominently, allegations that
defendants paid attorneys to defend the allegedly abusive priest
and to take positions adverse to plaintiffs in court. In my view,
however, these references are collateral, often rhetorical, and not
included to support a claim for recovery. As such, they cannot be
the proper subject of a special motion to strike. (Ojjeh, supra, 43
Cal.App.5th at 1036.)
I read plaintiffs’ briefing in this court to essentially endorse
my view, i.e., that allegations concerning defendants’ facilitation
of attorney representation for the allegedly abusive priest are
merely collateral. Insofar as plaintiffs’ future prosecution of the
suit reveals they instead regard the references to activity that
would be protected by the anti-SLAPP statute to be the factual
predicate for liability, the trial court would retain discretion to
permit defendants to renew their anti-SLAPP challenge. (Code
Civ. Proc., §§ 425.16, subd. (f), 1008.)
BAKER, J.
2