A Summer Read: Tennessee survivor Mike Coode writing book as adult victim of pedophile priest, here is part of the story

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By City of Angels

Soon to be a major book, maybe a movie or at least part of one, here is Mike Coode’s story, something to read on a beach chair this weekend. Based on his experience going public as an adult victim of a pedophile priest in the early 1990s, Coode's manuscript should be ready for a publisher in mid-July, he told me today. I hope so, as Coode spins a good yarn in Tennessee straight talk style, as revealed in the speech copied here, which he delivered at a Nashville VOTF meeting in 2004. Enjoy this summer read, a taste of what Mike Coode’s upcoming book will be like.

I have a story to tell, and the question I ask myself is Why would I want to tell it? It is so painful this telling of my personal loss; the humiliation, the spiritual confusion, and the debasement. It’s difficult to publicly share my story with my sons and daughters, brothers and sisters and lifetime Friends. It’s difficult to see the pain in the eyes of those of you who share this terrible experience with me. It’s difficult to share my story with strangers.

But I must share it, because if by telling this story, one child is spared this horrible experience, if my story moves one person to see that the wrongs committed by the leaders of my church, our church, are corrected, then it’s worth the telling. If there are tears, it’s okay. When I see the pain in your eyes, it’s okay. That anguish you feel, that horrible pit in your stomach must forever be a reminder to you that this must stop. We must see that our children and our grandchildren are never caught up in this terrible tragedy.

When I was in grade school, I think the 7th grade, a priest at the cathedral, Father Riley, took me to Memphis on a weekend visit with his family. I remember we did a lot of drinking at his sister’s home. I knew nothing about drinking, but if a priest said it was okay, I guess it was. I remember getting very drunk, I remember getting very sick. And, I remember waking up in the middle of the night with Father Riley performing fellatio on me. I turned over and I went back to sleep.

This scared the hell out of me, and it was never spoken of again.

I don’t know what happened to Father Riley, I only know what happened to me. My 7th and 8th grade years were disastrous. My grades were failing. I was involved in some serious trouble, which resulted in me being taken out of Cathedral and sent to another school. When I speak of my abuse now, I very seldom tell of this experience, but looking back, I see what an effect it had on me, and my formative years.

The next few years were tough. Like the 7th and 8th grade, my first three years of high school were also disastrous. I guess you could say I was “troubled.” My grades were going badly, and I had very low self-esteem. I just couldn’t get anything right. As my classmate Catherine Edmondson put it many years later, I “marched to a different drum.”

Confused? Yes!!!

At this point Father Roger came on the scene. (By the way, you will notice that I always refer to him as Father Roger, because he’s still a priest- a broken old man for sure, but still a priest.

Can you imagine? He’s still a priest!!!

Every time you hear the name Father Roger, remember that I am being revictimized, and the church is being ridiculed.)

My mother was so worried about me. I’m sure she saw Father Roger as a person who could work with me and make me the good Catholic boy she wanted.

Mother insisted I serve Mass, and Father Roger usually officiated. Mom and dad went to 6 o’clock Mass daily, and I still shudder at the thought of him giving them communion by those same hands.

The abuse all began by Father Roger having me come to his room in the cathedral rectory to hear my confession, but I soon found myself getting a Massage; first the shirt came off, then the pants, and I would find myself being fondled and sexually abused. This was very puzzling to me; I was brought up a good Catholic boy … sex was taboo. Boys agonized over the consequences, girls didn’t do it. Wet dreams were very confusing, and “impure thoughts” headed our list of sins for confession.

We were brought up to believe that priests were above us. They were special, chosen by God.

It was confusing to rationalize what Father Roger was doing.

And after he was finished, he would hear my confession!

And tell me he would go to confession to a priest across town who didn’t know him.

He would hear my confession! Is that incredible? Fr Roger would tell me I had seduced him. My jeans were too tight. It was my Fault. I must confess, and not seduce him again!

But he never failed to call me back again and again.

I never asked to see him, he always called, and I went.

This continued for about a year and a half. Then the opportunity came for me to go away to boarding school at Saint Bernard. This was the Benedictine abbey Father Roger was from. He would be in Nashville and I would be safely away in Alabama.

In the fall of 1957, I enrolled at Saint Bernard prep school. And I thrived there. I played varsity football and basketball, and I even made the honor roll. I met Friends I have to this day, one so close I call him “brother.”

During this time I considered the priesthood as so many boys did. But Father Roger had told me I wasn’t smart enough to go to college and be a priest, I would be better off as a religious brother. Despite his prediction, I had such a great experience at Saint Bernard I wanted to go to college there. I was unable to go my first year, but I received a scholarship to Peabody College in Nashville. In my immaturity and my relentless search for sexual identity, I must tell you this was quite a year. Having broken the yoke of a Catholic boarding school with all its rules, and being in a coed situation, was quite an eye-opener. I won’t get into details but I did have many, many sexual experiences.

My story would not be complete if I didn’t report that some of these involved situations with homosexuals, and my willingness to prostitute myself for alcohol, money and gratification. My self-respect and my religious training were all but gone, but the guilt was still there.

With this disastrous year behind, I was given the chance to return to Saint Bernard on a work scholarship. Father Roger was doing parish work, so he wouldn’t be there. I was happy to have this opportunity, and I went back with great expectations. They were short-lived, however, because Father Roger came back later that fall as registrar of the college. I was filled with apprehension and I had resolved to resist him this time.

But you know, when he called me to his cell, I went, and the routine began again.

This time, though, Father Roger wanted more. He wanted to have anal intercourse, and I resisted. A scuffle ensued, and I left his cell very afraid for my future.

And sure enough, as Father Roger threatened, shortly thereafter I lost my work scholarship and I left Saint Bernard heavily in debt. It took five years before I could pay this off and get my credits transferred and go back to college. But pay them off I did, and I graduated from Middle Tennessee State University in 1967. It was so important for me to graduate from college and prove Father Roger wrong. But to this very day I have dreams of having my degree taken away from me.

The next few years that followed were typical. I went to work, went into the military. In 1965, I married. My former wife, Donna, is a wonderful person. We are the parents of two beautiful boys. During the marriage, I struggled with my vows. I had a love-hate relationship with the church, and my career choices were unfulfilling. I was very frustrated with everything, and I decided to leave my marriage. Donna and I separated in 1982, and in January of 1986 we divorced.

I first started counseling in the early seventies, and I am not sure how much it helped. I remember telling one counselor I may have been abused, but he was rather flippant about it. I didn’t pursue it further at the time.

On September 22, 1995, what psychiatrists call a “triggering event” occurred.

I worked for the sheriff’s office in the warrants division. We would go to people’s homes and serve warrants on the people named. On that September morning, I was in Chicago, seeing my brand new grandson, born just a few hours earlier. At home, officers Jerry Newsom and Johnny Spears were serving a warrant, and the person they were serving drew a gun. He first shot Jerry … his heart exploded, and he was dead before he hit the ground. Johnny was critically wounded. He has since recovered.

The tragedy of this linked with the joy of a newborn baby was so very confusing. Jerry also had a little boy, 4 years old, and he was the joy of Jerry’s life. He was also the father of a little girl born a few months’ later. As a result the warrants officers were required to go to group counseling sessions. Most of us were resistant at first, but this was the most beneficial thing to come out of this sad, sad situation. It made me realize I had been victimized again, and I was about at the end of my rope.

I resolved to fight back and put an end to this.

I continued individual counseling, and thought of things I could do. I resolved to make my abuse known, and to face my abuser.

I understood that the statute of limitations had expired, and Father Roger could not be prosecuted. But I wanted some validation that this had occurred. So I decided to ask for an annulment of my marriage. This request for an annulment was based on grounds established by the church: “psychic natured incapacity to assume marital obligations.”

By asking for the annulment, I felt the church would investigate my claim, and validate the allegations.

But they didn’t!

Rather than going through the lengthy process that normally takes several years, I was granted an annulment very quickly, within a year. I knew I was given this annulment gratuitously, not in good faith. This has put me at odds with the bishop, and I have questioned the internal operations of the entire church. How could any organization, especially a church, make such a decision? How could they allow a priest to be charged with such a despicable thing without any redress? To this day it hasn’t been explained to me. Of course, I am not alone; this scenario has been repeated time after time after time. It seems to be a pattern of the church, so blatant, so morally reprehensible that some have compared the maneuvers of the church to the mafia.

I have repeatedly written the bishop, and copied my letters to bishops and cardinals, and yes I have even written the pope. None of them have seen fit to respond to me.

The bishop says I am angry, and yes, I am.

No one wants to be trivialized. We all deserve an answer. I have criticized the review board and its structure. I have been critical that it acts in secret. I have been critical of some of its members. The bishop promised to appoint a victim to the board. He didn’t keep his promise. I have reminded the bishop that he has been caught in untruths. I have criticized how the diocesan attorney conducted himself, and I have criticized the way this whole situation has been handled.

On October 16 1996 I went to Saint Bernard and faced my abuser.

He came into the abbot’s refectory and sat across the table from me. I read the letter. He sat quietly and listened, his face reddening from time to time. What he said after I finished was astounding.

First, he said he hardly knew my mother.

Then he said he might have done this but “as you know, I’m an alcoholic…”

I really didn’t want to hear any more. Fr Roger had been in our house many, many times. He even left his clerical clothes there when he went on vacation, and mother insisted I put on his Roman collar and let her take a picture of me. I wanted so badly to tell her what this meant to me! But I couldn’t. It would have broken her heart. I saw no need to put her through the hell I was going through, and, honestly, I was afraid she would blame me.

I thought I was to blame.

There was something wrong with me that caused priests to break their vows.

When I decided to make this public, and seek an annulment, I first went to Donna and told her my story. I told her how sorry I was she had to be part of all this, and asked her to forgive me. We cried and cried together that day. The next thing I had to do was tell my two sons. They were in their twenties, but I was concerned how they would accept an annulment. I will never forget, we were in Chicago, and I took them aside and told them. They were so kind and understanding. And they supported me.

It was not until later that I discussed it with family members.

In early 2002, I knew my story was going to appear in a local publication, and I felt I had to tell them. So I began to tell some of them, including my sister, Sister Judith, who is a mercy nun. Stories began pouring out of Boston early that year, and on June 29 2002 the cover story in The Scene was “mike cooed was sexually abused by a Catholic priest.” The story was co-written by an old friend, joe sweat, and Liz Murray Garrigan, both Catholic, and it was fair and accurate.

The repercussions were swift.

I received many, many phone calls, some from old friends. I received many calls from people I didn’t know. And I received letters from many people, some I had never met. I heard from victims, some who had never told another soul of their abuse. And I heard from Martha l. Shay, from Massachusetts, a Saint Bernard graduate who accused me of just wanting money. When I was out in public, so many people wanted to stop and talk with me. They were either very surprised or had their suspicions confirmed.

By the way, only one priest took the time to talk with me. That was my friend and classmate at Father Ryan, Father Owen Campion. About this same time, a former priest was convicted of sexual abuse in Nashville. He is now in prison. Other stories and allegations came out … allegations about Father Haas and Frank Richards were told me. It was a sobering time, a sad time.

The story of Ron Dickman and his accuser, a young man dying of AIDS was published in The Tennessean. The story once again recounted how the church was in denial and in certain cases, simply lying.

I have to tell this next story and the dilemmas I faced.

When the bishop’s report on sex abuse was released, I was interviewed by a local television station, and gave my feelings and opinions. I thought they were pretty innocuous. But I was told that some people took exception to them, and even suggested, as has the bishop, that I had co-opted the Voice Of The Faithful. I have never mentioned Voice Of The Faithful in any interview. And if any of these people took the time to go to Voice Of The Faithful meetings, they would see that many, many times I have been very critical and frustrated at how slowly Voice Of The Faithful moves.

Along with my interview that day, Bishop Kmiec was also interviewed. He was asked if this abuse ever occurred when he was in New Jersey. He said with a look of relief that while he was there, he didn’t have to deal with this, another bishop had that job. Well, he told me in a meeting on Friday, August 15, 1997, that he wasn’t familiar with this problem of sexual abuse by the clergy, it didn’t happen back then.

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A survivors prayer

I write a poem of angels
And the duties they perform

I write a verse of roses
And the hearts they’re meant to warm

I ask the God of peace and love
To give comfort and hope to Friends
For me I ask to find and share a way to make amends

I’m filled with so much hurt yet to be secure
My past struggles with the present and takes away the cure

With gratitude for all things good and hope to change
things bad

Prayers for happiness and life, to make the sadness glad

Thank you…

-Mike Coode

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Happy Fourth of July from City of Angels

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Two cases that affect SOL for child sex crimes in opposite ways now up for review by Supreme Court of California

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By Kay Ebeling
Creator, City of Angels Blog

The State Supreme Court accepted the KJ petiion for review last week, leveling the playing field between adult victims of pedophiles and corporate entities who are trying to prevent further lawsuits. Earlier this month the Catholic Church and its attorneys celebrated when the state's highest court granted their request to review Quarry, where the trial court sustained the Bishop of Oakland’s demurrer and dismissed the complaint. Then the First Appellate Court reversed and Catholic Church attorneys worked long and hard to get the Quarry decision reviewed, as we reported here June 12th.

Now, by the Court agreeing to review KJ as well, "All the big issues will be on the table," an attorney close to the California Clergy Cases told City of Angels. In K.J. v. The Roman Catholic Bishop of Stockton, the plaintiff began to recover memory of the abuse in 2004 and filed suit in 2007. The Third Appellate Court agreed with the Church that the case was time barred, that 340.1 did not change the statute of limitations post 2003. Now the Court will review both cases.

"The justices, at their weekly conference in San Francisco, agreed to review a Third District Court of Appeal ruling that affirmed a San Joaquin Superior Court judge’s dismissal of a suit by 'John K.J. Doe' against the Stockton Diocese of the Roman Catholic Church," reported Metropolitan News Enterprise June 25th.

"The plaintiff alleged in his complaint, filed in 2007, that he was an altar boy at a local church; that he was molested by a priest there between the ages of seven and 11, ending in 1971; that the bishop of Stockton knew that the priest was a serial molester and actively helped cover up that fact; and that he had 'immediately repressed' all memories of the abuse, although he began to remember in 2004.

"The diocese demurred. It argued that under the law then in effect, the plaintiff’s claims were time barred after he turned 19 years of age, which would have been in 1978 or 1979. Legislation enacted in 1990 extended the limitations period, allowing a victim who discovered, after reaching adulthood, that he or she had been psychologically injured by childhood abuse to sue up until the age of 26 or within three years of making that discovery, whichever was the shorter period.

"Not having been filed within the time then provided by law, the diocese contended, the only way John K.J. Doe’s suit would have been timely was if it had been brought during 2003."

Continue reading here: S.C. to Hear Delayed-Discovery Claim in Molestation Case - Metropolitan News Enterprise

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For the record, we are publishing the Quarry decision, which the Church fought hard to get reviewed, below:

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CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

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TERRY QUARRY et al., Plaintiffs and Appellants

v.

DOE 1, Defendant and Respondent

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A120048

(Alameda County Super. Ct. No. HG07313640)


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Six brothers claim they were sexually abused by a Catholic priest in the 1970’s, when they were children. They sued defendant Doe I in 2007 for damages due to adult-onset psychological injuries allegedly caused by that abuse. When they sued, they ranged in age from 43 to 49. They alleged they did not discover until 2006 that the cause of their adulthood psychological injuries was the childhood sexual abuse.

The Bishop demurred to the complaint. He argued that plaintiffs’ causes of action were barred under earlier limitations periods and that later expansions of the statute of limitations did not revive their lapsed claims. Plaintiffs contended that the current statute (Code Civ. Proc., § 340.1) applied, pursuant to which their claims did not accrue until 2006, when they discovered the cause of their injuries. The trial court sustained the Bishop’s demurrer and dismissed the complaint.

We reverse and hold that the prior limitations periods did not extinguish claims that had not accrued while those limitations were in effect, and that the timeliness of the complaint is to be measured by the statute in effect at the time the complaint was filed.

I. BACKGROUND

On March 2, 2007, plaintiffs filed a complaint against the Bishop alleging that they suffered childhood sexual abuse in 1972 and 1973 at the hands of a priest employed by the Bishop. They alleged that they developed various psychological coping mechanisms that prevented them from ascertaining the causal connection between their childhood sexual abuse and the adult-onset psychological injuries. As a result, they did not discover that their injuries were the result of the sexual abuse until within the year preceding the filing of the complaint. The Bishop demurred to the complaint, arguing that the complaint was barred by the statute of limitations of Code of Civil Procedure section 340.1. The trial court sustained the demurrer with leave to amend.

Plaintiffs filed a first amended complaint on July 12, 2007. They alleged that they did not discover the wrongfulness of the abuse they suffered until the latter half of 2005 and did not discover that their psychological injuries were caused by the molestation until March 2006. The Bishop again demurred. He contended that plaintiffs’ claims were barred by the statutes of limitations in effect prior to 2003, were revived for a one-year period (2003) by section 340.1, subdivision (c), and after 2003 were again time-barred. The Bishop also argued that plaintiffs could not rely on the common law delayed discovery rule because it had been abrogated by the statute.

The trial court sustained the demurrer without leave to amend, and entered judgment dismissing the complaint with prejudice.

II. DISCUSSION

A. Standard of Review and Principles of Statutory Construction

We here review the narrow question of whether a complaint is time-barred by the terms of a statute and the statute’s prior iterations. No factual issues are in dispute. After dismissal is entered on a demurrer sustained without leave to amend, we must accept as true all of the facts alleged in the complaint. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) Accordingly, our review is de novo.

“ ‘[I]t is well settled that the interpretation and application of a statutory scheme to an undisputed set of facts is a question of law [citation] which is subject to de novo review on appeal.” (Bodell Construction Co. v. Trustees of Cal. State University (1998) 62 Cal.App.4th 1508, 1515 (Bodell).) In cases “involving matters of law, the appellate court is not bound by the trial court’s decision, but may make its own determination. [Citations.] Statutory construction is such a question of law for the courts . . . .” (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 407.)

“The applicable canons of statutory construction which guide our interpretation of [statutes] are also well settled. ‘The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.]’ [Citation.] In determining that intent, we first examine the words of the statute itself. [Citation.] Under the so-called ‘plain meaning’ rule, courts seek to give the words employed by the Legislature their usual and ordinary meaning. [Citation.] If the language of the statute is clear and unambiguous, there is no need for construction. [Citation.]” (Bodell, supra, 62 Cal.App.4th at pp. 1515-1516; see also Wolski v. Fremont Investment & Loan (2005) 127 Cal.App.4th 347, 351 [where statutory language is unequivocal, “ ‘we presume the Legislature meant what it said, and the plain meaning of the statute governs’ ”].) “If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. In such situations, we strive to select the construction that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statute’s general purposes.” (In re Travis W. (2003) 107 Cal.App.4th 368, 371.)

With these principles in mind, we turn to our examination of the statute’s history and meaning.

B. The Statute and Its Amendments Section 340.1 was enacted in 1986. (Stats. 1986, ch. 914, § 1, pp. 3165-3166.) It sets forth the statute of limitations for an action seeking damages suffered as a result of childhood sexual abuse. Prior to 1987, the limitations period for such claims was one year from the date of the wrongful act, as then prescribed by section 340, subdivision (3) (Stats. 1982, ch. 517, § 97, pp. 2334-2335), or one year after reaching the age of majority, pursuant to section 352, subdivision (a) (Stats. 1986, ch. 1161, § 1, p. 4148). The 1986 statute extended the limitations period to three years, but only for sexual abuse by a relative or household member. (Dutra v. Eagleson (2006) 146 Cal.App.4th 216, 222.)

In 1990, the Legislature amended section 340.1, extending the limitations period to “within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, ‘whichever occurs later.’ ” (Lent v. Doe (1995) 40 Cal.App.4th 1177, 1182 (Lent); Stats. 1990, ch. 1578, § 1, pp. 7550-7552.) The amendment also expanded section 340.1 to govern actions against all perpetrators, not just household or family members. (Ibid.) The new provision applied to “ ‘any action commenced on or after January 1, 1991.’ ” (David A. v. Superior Court (1993) 20 Cal.App.4th 281, 284, fn.5 (David A.).)

In 1993, Division Two of the First District Court of Appeal construed the above-quoted phrase to mean that the 1990 amendment was intended to apply prospectively only and did not revive any claims that had become time-barred under prior law. (David A., supra, 20 Cal.App.4th at pp. 286-288.) In response, the Legislature adopted amendments in 1994 making explicit its intention to revive claims that had lapsed under prior limitations periods. (Former § 340.1, subd. (o); Stats. 1994, ch. 288, § 1, p. 1930; currently § 340.1, subd. (r).)

The 1990 and 1994 amendments applied only to perpetrators and not to entities that employed or otherwise supervised a perpetrator. (Former § 340.1, subd. (b); Stats. 1990, ch. 1578, § 1, pp. 7550-7551; Stats. 1994, ch. 288, § 1, p. 1928.) “Effective 1998, that defect was remedied when the Legislature amended section 340.1, subdivision (a) to include causes of action for sex abuse against persons or entities other than the perpetrator.” (Hightower v. Roman Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759, 765-766 (Hightower); Stats. 1998, ch. 1032, § 1, No. 13 West’s Cal. Legis. Service.) Such claims, however, had to be brought before the plaintiff’s 26th birthday. (Former § 340.1, subd. (b); Stats. 1998, ch. 1032, § 1, No. 13 West’s Cal. Legis. Service; currently § 340.1, subd. (b)(1).)

In 1999, the Legislature again amended section 340.1 to provide that the 1998 amendments to subdivision (a) “shall 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 laws in effect prior to January 1, 1999.” (Former § 340.1, subd. (s): Stats. 1999, ch. 120, § 1, No. 4 West’s Cal. Legis. Service.)

In 2002, the Legislature further expanded the limitations period of section 340.1 as against certain nonperpetrator defendants by removing the cutoff date of the 26th birthday. (Id., subd. (b); Stats. 2002, ch. 149, § 1, No. 4 West’s Cal. Legis. Service.) Accordingly, the statute now permits an action against a nonperpetrator defendant to be brought within three years of discovering that the psychological injuries were caused by the childhood abuse (§ 340.1, subd. (a)) if that defendant “knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee . . . or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment” (id., subd. (b)(2)). The amendment also revived for a period of one year, commencing January 1, 2003, any claims “permitted to be filed [under the amendment] that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired . . . .” (§ 340.1, subd. (c).)

This is the current state of the law, and is the law that was in effect when the complaint was filed. The core statutory provisions are succinctly summarized in Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910. “Section 340.1 provides that an action for recovery of damages suffered as a result of childhood sexual abuse must be commenced within three years of discovering that injury occurred as the result of the abuse, or within eight years after the plaintiff attains the age of majority, whichever is later. (§ 340.1, subd. (a).) This limitations provision applies whether the defendant is the perpetrator of the abuse, or a third party whose liability stems from a negligent or intentional act which was the legal cause of the abuse that resulted in the injury. (§ 340.1, subd. (a)(1)-(3).) [¶] In the case of a third party defendant, the action must be commenced before the plaintiff’s 26th birthday unless the third party defendant ‘knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee . . . or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person’ in which case the action must be commenced within three years of discovering the injury was caused by the abuse. (§ 340.1, subd. (b)(2).) The one-year revival period for the year 2003 applies only to these actions, reviving any such claim previously barred by the statute of limitations, unless the claim was litigated to finality on the merits. (§ 340.1, subd. (c).)” (Id. at pp. 919-920.)

The question presented is how to interpret and apply the statute to actions filed after 2003 by plaintiffs who are over the age of 26.
C. Application and Analysis
1. The Parties’ Contentions

The parties do not dispute that plaintiffs’ claims for injuries from the alleged sexual abuse originally lapsed between 1976 and 1982, when each turned age 19, under the law as it then stood. (Former § 340, subd. 3; Stats. 1973, ch. 20, § 1, p. 32.) The Bishop also concedes that in 1999 all lapsed claims against both perpetrators and third parties were revived by the 1998/1999 amendments to section 340.1, subdivision (a), which applied to “any action commenced on or after January 1, 1999.” (Former § 340.1, subd. (s); Stats. 1999, ch. 20, § 1, No. 4 West’s Cal. Legis. Service.) The Bishop argues, however, that the age 26 cutoff date for claims against third parties in effect from 1999 to 2003 precluded the revival of plaintiffs’ claims because they had already reached age 26 before 1999. According to the Bishop, effective 2003 the Legislature opened a one-year window in which plaintiffs’ claims were revived, and because plaintiffs did not commence an action in that time window their claims are now forever barred.

Plaintiffs contend that their claims could not have been barred by the age 26 cutoff because the statute of limitations on their claims did not even begin to run until 2006, when they first discovered their “psychological injury or illness occurring after the age of majority was caused by the sexual abuse.” (§ 340.1, subd. (a).) According to plaintiffs, because the timeliness of a complaint is measured by the limitations period in effect at the time the complaint is filed, their claims are not barred. We agree.
2. Plain Meaning of Section 340.1
The statute is neither ambiguous nor obscure. We need not resort to extrinsic aids for its interpretation because its meaning is plain.

The 1998/1999 amendments to section 340.1 revived all previously lapsed, unadjudicated claims against perpetrators and third parties, and provided for two alternative limitations periods: A claim must be filed (1) within eight years after reaching majority or (2) within three years of discovering that the cause of the psychological injury occurring after the age of majority was the childhood abuse, whichever occurs later (id., subd. (a)); as against third parties, however, the outside limit was age 26 (id., subd. (b)). Thus, under the prior law, any person discovering after age 26 that childhood abuse was the cause of his or her adulthood injuries was barred from suing responsible third parties. Effective 2003, however, the Legislature deleted the age 26 cutoff as against a narrow category of third party defendants who had both the knowledge and the ability to protect against abusive behavior but failed to do so. Anyone discovering that childhood abuse was the cause of their injuries after 2003 could sue these—more culpable—defendants without regard to the age 26 cutoff. (Ibid.) And, for those who had previously discovered the cause of their injuries but could not sue under the prior law because of the age 26 cutoff (id., subd. (b)(1)), the Legislature offered a one-year window in which they could file their claims (id., subd. (c)).

It therefore follows, and we hold, that under section 340.1 the complaint in this action is not time-barred because plaintiffs have alleged they did not discover the cause of their psychological injuries until 2006. In so holding we respectfully disagree with our colleagues in the Second Appellate District. (Hightower, supra, 142 Cal.App.4th 759.) The court there rejected the same argument made by plaintiffs here—that the delayed discovery rule applies to any cases filed after 2003, even those of persons who are well past the age of 26. The court concluded that with the 2002 amendments, “[t]he Legislature . . . 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.” (Id. at pp. 767 768.) The court’s conclusion in Hightower appears to rest on the premise that all causes of action of persons over age 26—those already triggered as well as those not yet discovered—were extinguished under prior limitations periods. As we explain, we disagree and have concluded, instead, that the 2002 amendments were intended to lift the age 26 cutoff with respect to any complaint commenced on or after its effective date, so long as the triggering event—the discovery of the cause of one’s injuries—falls within the limitations period in effect at the time the complaint was filed.

Our reading of section 340.1 follows the plain language of the statute and achieves its overarching purpose “to expand the ability of victims of childhood abuse to sue those responsible for the injuries they sustained as a result of that abuse.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545 (Doe).) As we discuss below, it also comports with general principles relating to the prospective application of enlarged limitations periods, and is supported by the legislative history.
3. Prospective Application of an Enlarged Statute of Limitation

The Bishop argues that section 340.1, subdivision (b)(2), lifting the age 26 cutoff as against certain defendants, cannot apply to plaintiffs’ 2007 complaint because their claims were previously barred, and it is impermissible to apply a new law retroactively. The Bishop’s contention that this would be an improper retroactive application of a new limitations period appears to rest on two premises: First, that a potential claim is barred by a limitations period in the same manner as a claim that has accrued; and second, that there is only one accrual date for a wrongful act. As explained in Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727 (Nelson), neither premise is correct.

In Nelson, the plaintiff (Andrew Nelson) was exposed to asbestos at various times beginning in 1949. (Nelson, supra, 172 Cal.App.3d at pp. 729-730.) In September 1976 Nelson was informed by his doctor the he had contracted the disease of asbestosis as a result of that exposure. Despite the diagnosis, Nelson continued working. (Id. at p. 730.)

In 1979 the Legislature enacted section 340.2, a new statute of limitations for persons injured as a result of asbestos exposure. It provided that the time for commencement of such an action “ ‘(a) . . . shall be the later of the following:

[¶] (1) Within one year after the date the plaintiff first suffered disability.

[¶] (2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure.

[¶] (b) ‘Disability’ . . . means the loss of time from work as a result of such exposure . . . .’ ” (Ibid.) The new law also made its provisions expressly applicable to “those causes of action which accrued prior to the change in the law . . . and have not otherwise been extinguished by operation of law.” (Stats. 1979, ch. 513, § 2, p. 1690.)

Prior to the adoption of section 340.2, asbestos-related personal injury actions were subject to the general one-year statute of limitations contained in former section 340, subdivision 3 (Stats. 1973, ch. 20, § 1, p. 32), and the limitations period commenced at the time of the wrongful act. (Nelson, supra, 172 Cal.App.3d at pp. 730-731.) Nelson, while still working, filed his complaint for damages in 1981. (Nelson, at pp. 730 731.)

The defendants argued that because Nelson did not file suit within one year of learning that he had been injured due to asbestos exposure, his action was time-barred, because it had been “ ‘extinguished by operation of law.’ ” (Nelson, supra, 172 Cal.App.3d at p. 731.) The Court of Appeal disagreed stating, “[t]here is no automatic magical extinguishment of a cause of action by the mere passage of time. A statute of limitations is an affirmative defense which must be pleaded by a defendant and ruled on by a court. Where, as here, a court has not adjudicated the timeliness of the action with reference to section 340, subdivision (3), prior to the effective date of section 340.2, the claim is considered still pending or potential and governed by the changed rules for accrual of section 340.2. [Citations.]” (Id. at p. 732.) The court went on to explain, “[t]he fact that the limitations period under the discovery rule of section 340, subdivision (3), may have expired before section 340.2’s more liberal discovery and disability rule became effective and before any complaint was filed does not bar the action since no disability had occurred.” (Ibid.) The court concluded, “[s]ince there had been no extinguishment, there is no problem of an impermissible retroactive revival of a barred cause of action impairing defendants’ vested rights.” (Ibid.)

“Moreover, a statute of limitations is procedural; it affects the remedy only, not the substantive right or obligation. [Citation.]” (Id. at p. 733.) “ ‘A statute which is procedural in nature may be given effect as to pending and future litigation even if the event underlying the cause of action occurred before the statute took effect.’ [Citation.]” (Ibid.; see also Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1138-1145 (Hamilton).)

The same analysis applies here. Because no court has previously adjudicated the timeliness of plaintiffs’ action, the claims are considered “still pending or potential and [are] governed by the changed rules for accrual.” (Nelson, supra, 172 Cal.App.3d at p. 732.) And, the fact that prior limitations periods may have expired before section 340.1, subdivision (b)(2)’s more liberal discovery rule became effective and before any complaint was filed does not bar plaintiffs’ action, because discovery of the cause of plaintiffs’ psychological injuries had not yet occurred.

Therefore, there was no “extinguishment [and] there is no problem of an impermissible retroactive revival of a barred cause of action impairing defendant[’s] vested rights.” (Nelson, at p. 732.) Further, the amendments to section 340.1 affecting the statute of limitations are procedural only; they affect plaintiffs’ remedies, not any substantive rights or obligations. As stated in Nelson, a statute procedural in nature “ ‘may be given effect as to pending and future litigation even if the event underlying the cause of action occurred before the statute took effect.’ [Citation.]” (Nelson, at p. 733, italics added; see also Romo v. Estate of Bennett (1979) 97 Cal.App.3d 304, 307-308 [new statute of limitations with only prospective application did not bar claims arising out of injury occurring prior to the statute on which claim did not accrue until after the statute was enacted].)

The policy reasoning in Nelson is also instructive. “The state certainly has an interest in protecting innocent asbestosis victims from toxic tortfeasors. Asbestosis may take up to 35 years to develop from first exposure. [Citation.] To ameliorate the harsh application of the one-year statute commencing to run upon the wrongful act in cases involving latent occupational diseases, the courts . . . began to apply a ‘discovery rule’ to section 340, subdivision (3). [Citation.] Meanwhile, with the passage of section 340.2[,] the Legislature codified a more liberal disability plus discovery rule, providing that the limitation period never commences to run for plaintiffs who know they have suffered injury or illness from asbestos exposure until ‘disability’ has occurred. [Citation.] [¶] This delayed accrual rule is more in keeping with the gradually disabling nature of the disease.” (Nelson, supra, 172 Cal.App.3d at p. 735.)

Surely, the state has an equal interest in protecting innocent victims of child molestation from responsible tortfeasors. Just like asbestosis, the psychological injury from childhood abuse can take years to reveal itself. The statute itself recognizes that psychological injury from childhood abuse and discovery of its cause can be delayed long past age 26. Prospective application of the expanded limitations period is, therefore, in keeping with the delayed onset of these victims’ injuries. It also places the burden of compensation for such injuries on the responsible parties instead of on the victims, their families and the public.

4. Legislative History and Intent

Although the plain language of the statute dictates the result here, we may look to legislative history for additional support. (Barratt American, Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, 697.) As the author of the 2002 amendments explained: “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 the 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.

Unfortunately for many victims, their adulthood trauma does not manifest itself until well after their 26th birthday, when some event in their current life triggers remembrance of the past abuse and brings on new trauma. [¶] For example, a 35-year old man with a 13-year old son involved in many community and sporting events, may begin to relive his nightmare of being molested by an older authoritarian figure when he was 13 years old and about to enter puberty. While a lawsuit against the perpetrator is possible, that person may be dead, may have moved away to places unknown, or may be judgment-proof. However, any lawsuit against a responsible third party is absolutely time-barred after the victim passes this 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.” (Sen. Com. on Judiciary, 3d reading analysis of Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as amended Jun. 17, 2002, pp. 3-4.)

In keeping with this expression of legislative purpose, the Assembly Committee on the Judiciary described the intended effect of the 2002 amendments: “WHO CAN SUE AFTER THE BILL PASSES, AND WHEN: [¶] . . . [¶] Prospective application: People 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.” (Assem. Com. on Judiciary, Background Information Worksheet on Sen. Bill No. 1779 (2001-2002 Reg. Sess.) p. 0.)

In sum, the primary purpose of the 2002 amendments was to ameliorate the harsh result of a statute of limitations which precluded abuse victims from recovering any compensation from the most highly culpable of the responsible third parties—those who knew of the danger and took no steps to protect children from abuse. It would not effectuate this legislative intent to read the amendments as re-imposing the same harsh result on an entire class of victims over the age of 26 who did not discover the cause of their injury until after January 1, 2004, and therefore could not have filed their actions during 2003.

As our Supreme Court has explained, “ ‘[t]he overall goal of section 340.1 is to allow victims of childhood sexual abuse a longer time period in which to bring suit against their abusers. [Citation.] The legislative history makes this abundantly clear. The statute has been amended numerous times since its enactment in 1986, to enlarge the period for filing claims, “ ‘to hold molesters accountable for their behavior so that they are not “off the hook” as soon as their victims reach age 21,’ ” [citation] [and] to extend the expanded limitations period to actions not just against molesters, but against “any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse . . .” [citations] . . . . [Citation.]

Each time, plaintiffs’ access to the courts was expanded.’ ([Citation]; see Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 207-208 . . . [review of the history of § 340.1 from its original enactment in 1986 through its 2002 amendments demonstrates a continual expansion and enlargement of the statute to allow sexual abuse victims to sue perpetrators and nonperpetrator defendants].)” (Doe, supra, 42 Cal.4th at p. 545.) Thus, our reading of the 2002 amendments has the added virtue of advancing the primary purpose behind the statute and its legislative evolution. (Wotton v. Bush (1953) 41 Cal.2d 460, 467 [“ ‘the objective sought to be achieved by a statute as well as the evil to be prevented is of prime consideration in its interpretation’ ”].)

5. Claims Retroactively Revived by Section 340.1, Subdivision (c)

We have concluded that plaintiffs of all ages who discover the cause of their childhood injuries after 2003 can sue those defendants described in section 340.1, subdivision (b)(2). What purpose, then, is served by the revivor provision of section 340.1, subdivision (c)? Again, the statutory language is clear. Subdivision (c) provides that “any claim for damages [against third parties] that is permitted to be filed [after age 26 against the more culpable third party defendants] that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired, is revived . . . .” This provision, by its terms, governs those persons who, prior to 2003, discovered their psychological injury was caused by the childhood abuse but could not file suit because their discovery occurred after they reached the age of 26. The legislative history bears this out. “[T]his bill would provide those victims who discovered their adulthood trauma after age 26, whose action has been barred by the current statute of limitations, a one-year window to bring a case against a third party that otherwise would be time-barred.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as amended Jun. 6, 2002, p. 7, italics added; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as amended May 2, 2002, p. 6, italics added.)

Plaintiffs here had no claims to bring that were “barred by the current statute of limitations,” because they had not discovered the cause of their psychological injuries prior to 2003. Therefore, plaintiffs’ claims are not governed by the one-year window for the filing of time-barred claims, but are governed by the provisions of section 340.1, subdivision (b)(2) in its prospective application.
6. No Improper Splitting of a Cause of Action
In response to questioning at oral argument, the Bishop argued that the statute of limitations began running on plaintiffs’ causes of action when the molestation occurred in 1972 and 1973 because actual, appreciable injury is presumed in cases of childhood sexual abuse. Therefore, according to the Bishop, plaintiffs’ claims had already accrued and become barred by 1982 at the latest (when the youngest plaintiff turned 19) under the original statute of limitations (former § 340, subd. 3), and could not be revived by the 1999 amendments because at that time all plaintiffs were beyond the age 26 cutoff. Allowing plaintiffs a second accrual date, the Bishop contends, would violate the primary right theory by impermissibly splitting plaintiffs’ causes of action. The Bishop mistakenly equates the primary right theory with the statute of limitations.

In Hamilton, the court considered whether a plaintiff could file two separate complaints, each one alleging a different type of injury due to exposure to asbestos. The Court of Appeal had concluded that the second action was time barred reasoning, in part, that filing two lawsuits for injuries from the same exposure impermissibly split plaintiff’s cause of action and violated the primary right rule. (Hamilton, supra, 22 Cal.4th at pp. 1145-1146.)

The Supreme Court reversed, explaining that “[t]he rule against splitting a cause of action is neither an aspect, nor a restatement, of the statute of limitations . . . .” (Hamilton, supra, 22 Cal.4th at p. 1146.) “ ‘The primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement [citation]; or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata [citation].’ (Italics added.) Neither of these applications of the rule against splitting a cause of action depends on whether the second action was brought within the period allowed by the statute of limitations. Conversely, application of the statute of limitations does not depend on whether a prior action was brought, or on how it was resolved.” (Ibid.)

The court also explained why the plaintiffs’ second complaint was not time-barred. A cause of action accrues, “in the sense that it is ripe for suit,” when the plaintiff discovers he has a compensable injury. (Hamilton, supra, 22 Cal.4th at p. 1144.) “Before the enactment of section 340.2, that accrual date was also the date of the beginning of the limitations period in cases in which the latent injury or disease arose from exposure to asbestos. [Citation.] But section 340.2 changed that rule, declaring a separate and distinct date for the beginning of the limitations period . . . , i.e., the date of disability as specially defined in the statute. The result, since the enactment of section 340.2, is that although the filing of an action for asbestos-related injury may be said . . . to be an ‘admission’ that the cause of action has accrued in the ripeness sense, it is not an admission that the limitations period of section 340.2 has simultaneously begun. To hold otherwise is to rewrite the statute.” (Id. at pp. 1144-1145.)

The same principle applies to section 340.1. Under prior law, a cause of action for sexual abuse accrued and the statute of limitations began to run from the date of the wrongful act. But section 340.1 and its amendments changed that rule, declaring a separate and distinct date for the beginning of a different limitations period, i.e., the date a plaintiff reasonably should have discovered that the cause of his or her psychological injuries was the childhood abuse. (§ 340.1, subd. (a).) Consequently, although a plaintiff can file an action for damages arising out of the molestation based upon the presumed injuries suffered as a child, the delayed discovery statute provides for a new limitations period to begin when the cause of any adult-onset injuries was or should have been discovered.

Lent provides a similar analysis under an earlier version of section 340.1. In Lent, the plaintiff expressly alleged he had suffered “actual and appreciable injury” when he was abused as a child, and admitted he had not suppressed his memory of the abuse. (Lent, supra, 40 Cal.App.4th at p. 1185.) The defendant argued that these facts precluded the plaintiff from taking advantage of the delayed accrual provisions of section 340.1, subdivision (a). (Lent, at p. 1185.) The court rejected this argument. “[W]hether plaintiff suffered an actual or appreciable injury at the time of the abuse is not relevant to delayed discovery claims made under the present version of section 340.1. [Citations.] Subdivision (a) of section 340.1 could not be more clear: the delayed discovery provisions of section 340.1 relate to injuries occurring after the age of majority. [Citations.]” (Id. at pp. 1185-1186.) “[T]o satisfy delayed discovery plaintiff need only allege the onset of psychological injury or illness after the age of majority and that he commenced his action within three years of the time he discovered or reasonably should have discovered such psychological injury or illness was caused by the childhood sexual abuse. (§ 340.1, subd. (a).)” (Id. at p. 1186.)

Similarly, here, the legal presumption that actionable injury occurs at the time of the molestation (see, e.g., Marsha V. v. Gardner (1991) 231 Cal.App.3d 265, 273) is not relevant. The current version of the statute expressly provides that the limitations period for adulthood psychological injuries begins when the cause of those injuries is or should have been discovered. There is no impermissible splitting of a cause of action, only a legislative policy decision to allow victims to sue on injuries that are not reasonably discoverable until much later in life.

7. The Common Law Delayed Discovery Rule Was Not Abrogated

Finally, the Bishop contends that common law delayed discovery principles applicable to childhood sexual abuse cases do not survive the later amendments to section 340.1. The trial court ruled that section 340.1 provides the exclusive limitations period for plaintiffs’ claims. We disagree.

The Bishop correctly points out that in the original statute, and in connection with the 1990 amendments, the Legislature expressly preserved a plaintiff’s right to rely upon the common law delayed discovery principles, but deleted this savings clause in the 1994 amendments. The Bishop argues this was a “material change in the language of the law” and is, therefore, “presumed to indicate a change in legal rights,” citing Dubins v. Regents of University of California (1994) 25 Cal.App.4th 77, 85. We agree with the proposition stated; but it does not necessarily follow that the “change in legal rights” enacted by the 1994 amendments includes an intent to preclude the application of common law delayed discovery principles in childhood sexual abuse cases.

“[W]hen we are urged to find that a statute is intended to silently abrogate an established rule of law, we must heed the Supreme Court’s admonition that ‘it should not “be presumed that the Legislature in the enactment of statutes intends to overthrow long-established principles of law unless such intention is made clearly to appear either by express declaration or by necessary implication.” [Citation.]’ [Citations].” (Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1630.) Here, the removal of the savings clause in 1994 did not expressly abrogate the common law delayed discovery rule, nor is such necessarily implied. A different construction is at least equally plausible, viz., the amendment having revived all claims that had lapsed under previous limitations periods, thus extending the three-years-from-date-of-discovery period to all plaintiffs, the “savings clause” for the shorter, one-year-from-discovery common law rule became superfluous.

Further, the common law delayed discovery rule comes into play in circumstances different from those governed by the delayed discovery provisions of section 340.1. The former arises in situations where the plaintiff repressed the memory of the abuse, or did not understand the wrongfulness of the abuse, until within one year of the filing of the action. (Evans v. Eckelman (1990) 216 Cal.App.3d 1609, 1618-1619 [wrongfulness]; id., at p. 1620 [suppressed memory]; cf. DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1018-1019 [repressed memory].) Section 340.1, subdivision (a), on the other hand, permits filing within three years of the date the cause of the injuries was or should have been discovered. The two are not inconsistent.

As a practical matter, the generous statutory limitations period leaves few, if any, benefits to be derived from the common law delayed discovery rule. Nevertheless, we decline to read into the Legislature’s mere deletion of the savings clause an express intent to preclude its application in all cases.

III. DISPOSITION

The judgment is reversed.


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___________________________
SEPULVEDA, J.


Trial Court: Superior Court of Alameda County

Trial Judge: Honorable Kenneth Mark Burr

Attorney for Appellant: Irwin M. Zalkin
Michael H. Zimmer
Devin M. Storey
Michael J. Kinslow
Zalkin & Zimmer, LLP

Attorney for Respondent: Stephen A. McFeely
Tami S. Smason
Courtney R. Henning
Foley & Lardner LLP



APPENDIX A

Code of Civil Procedure, Section 340.1


(a) In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later, for any of the following actions:

(1) An action against any person for committing an act of childhood sexual abuse.

(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.

(3) An action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.

(b)(1) No action described in paragraph (2) or (3) of subdivision (a) may be commenced on or after the plaintiff’s 26th birthday.

(2) This subdivision does not apply if the person or entity knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard.

(c) Notwithstanding any other provision of law, any claim for damages described in paragraph (2) or (3) of subdivision (a) that is permitted to be filed pursuant to paragraph (2) of subdivision (b) that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired, is revived, and, in that case, a cause of action may be commenced within one year of January 1, 2003. Nothing in this subdivision shall be construed to alter the applicable statute of limitations period of an action that is not time barred as of January 1, 2003.

(d) Subdivision (c) does not apply to either of the following:

(1) Any claim that has been litigated to finality on the merits in any court of competent jurisdiction prior to January 1, 2003. Termination of a prior action on the basis of the statute of limitations does not constitute a claim that has been litigated to finality on the merits.

(2) Any written, compromised settlement agreement which has been entered into between a plaintiff and a defendant where the plaintiff was represented by an attorney who was admitted to practice law in this state at the time of the settlement, and the plaintiff signed the agreement.

(e) “Childhood sexual abuse” as used in this section includes any act committed against the plaintiff that occurred when the plaintiff was under the age of 18 years and that would have been proscribed by Section 266j of the Penal Code; Section 285 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 286 of the Penal Code; subdivision (a) or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 288a of the Penal Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code; Section 647.6 of the Penal Code; or any prior laws of this state of similar effect at the time the act was committed. Nothing in this subdivision limits the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged perpetrator of the abuse.

(f) Nothing in this section shall be construed to alter the otherwise applicable burden of proof, as defined in Section 115 of the Evidence Code, that a plaintiff has in a civil action subject to this section.

(g) Every plaintiff 26 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (h).

(h) Certificates of merit shall be executed by the attorney for the plaintiff and by a licensed mental health practitioner selected by the plaintiff declaring, respectively, as follows, setting forth the facts which support the declaration:

(1) That the attorney has reviewed the facts of the case, that the attorney has consulted with at least one mental health practitioner who is licensed to practice and practices in this state and who the attorney reasonably believes is knowledgeable of the relevant facts and issues involved in the particular action, and that the attorney has concluded on the basis of that review and consultation that there is reasonable and meritorious cause for the filing of the action. The person consulted may not be a party to the litigation.

(2) That the mental health practitioner consulted is licensed to practice and practices in this state and is not a party to the action, that the practitioner is not treating and has not treated the plaintiff, and that the practitioner has interviewed the plaintiff and is knowledgeable of the relevant facts and issues involved in the particular action, and has concluded, on the basis of his or her knowledge of the facts and issues, that in his or her professional opinion there is a reasonable basis to believe that the plaintiff had been subject to childhood sexual abuse.

(3) That the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and that the certificates required by paragraphs (1) and (2) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificates required by paragraphs (1) and (2) shall be filed within 60 days after filing the complaint.

(i) Where certificates are required pursuant to subdivision (g), the attorney for the plaintiff shall execute a separate certificate of merit for each defendant named in the complaint.

(j) In any action subject to subdivision (g), no defendant may be served, and the duty to serve a defendant with process does not attach, until the court has reviewed the certificates of merit filed pursuant to subdivision (h) with respect to that defendant, and has found, in camera, based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against that defendant. At that time, the duty to serve that defendant with process shall attach.

(k) A violation of this section may constitute unprofessional conduct and may be the grounds for discipline against the attorney.

(l) The failure to file certificates in accordance with this section shall be grounds for a demurrer pursuant to Section 430.10 or a motion to strike pursuant to Section 435.

(m) In any action subject to subdivision (g), no defendant may be named except by “Doe” designation in any pleadings or papers filed in the action until there has been a showing of corroborative fact as to the charging allegations against that defendant.

(n) At any time after the action is filed, the plaintiff may apply to the court for permission to amend the complaint to substitute the name of the defendant or defendants for the fictitious designation, as follows:

(1) The application shall be accompanied by a certificate of corroborative fact executed by the attorney for the plaintiff. The certificate shall declare that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants, and shall set forth in clear and concise terms the nature and substance of the corroborative fact. If the corroborative fact is evidenced by the statement of a witness or the contents of a document, the certificate shall declare that the attorney has personal knowledge of the statement of the witness or of the contents of the document, and the identity and location of the witness or document shall be included in the certificate. For purposes of this section, a fact is corroborative of an allegation if it confirms or supports the allegation. The opinion of any mental health practitioner concerning the plaintiff shall not constitute a corroborative fact for purposes of this section.

(2) Where the application to name a defendant is made prior to that defendant’s appearance in the action, neither the application nor the certificate of corroborative fact by the attorney shall be served on the defendant or defendants, nor on any other party or their counsel of record.

(3) Where the application to name a defendant is made after that defendant’s appearance in the action, the application shall be served on all parties and proof of service provided to the court, but the certificate of corroborative fact by the attorney shall not be served on any party or their counsel of record.

(o) The court shall review the application and the certificate of corroborative fact in camera and, based solely on the certificate and any reasonable inferences to be drawn from the certificate, shall, if one or more facts corroborative of one or more of the charging allegations against a defendant has been shown, order that the complaint may be amended to substitute the name of the defendant or defendants.

(p) The court shall keep under seal and confidential from the public and all parties to the litigation, other than the plaintiff, any and all certificates of corroborative fact filed pursuant to subdivision (n).

(q) Upon the favorable conclusion of the litigation with respect to any defendant for whom a certificate of merit was filed or for whom a certificate of merit should have been filed pursuant to this section, the court may, upon the motion of a party or upon the court’s own motion, verify compliance with this section by requiring the attorney for the plaintiff who was required by subdivision (h) to execute the certificate to reveal the name, address, and telephone number of the person or persons consulted with pursuant to subdivision (h) that were relied upon by the attorney in preparation of the certificate of merit. The name, address, and telephone number shall be disclosed to the trial judge in camera and in the absence of the moving party. If the court finds there has been a failure to comply with this section, the court may order a party, a party’s attorney, or both, to pay any reasonable expenses, including attorney’s fees, incurred by the defendant for whom a certificate of merit should have been filed.

(r) The amendments to this section enacted at the 1990 portion of the 1989-90 Regular Session shall apply to any action commenced on or after January 1, 1991, including any action otherwise barred by the period of limitations in effect prior to January 1, 1991, thereby reviving those causes of action which had lapsed or technically expired under the law existing prior to January 1, 1991.

(s) The Legislature declares that it is the intent of the Legislature, in enacting the amendments to this section enacted at the 1994 portion of the 1993-94 Regular Session, that the express language of revival added to this section by those amendments shall apply to any action commenced on or after January 1, 1991.

(t) Nothing in the amendments to this section enacted at the 1998 portion of the 1997-98 Regular Session is intended to create a new theory of liability.

(u) The amendments to subdivision (a) of this section, enacted at the 1998 portion of the 1997-98 Regular Session, shall apply to any action commenced on or after January 1, 1999, and to any action filed prior to January 1, 1999, and still pending on that date, including any action or causes of action which would have been barred by the laws in effect prior to January 1, 1999. Nothing in this subdivision is intended to revive actions or causes of action as to which there has been a final adjudication prior to January 1, 1999

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NEXT POST on this topic:

The Catholic Church attorneys worked hard to get Quarry reviewed...

We'll show you some of their work.
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The Diocese, the Bishop, and the School are separate entities and other fiction by church attorneys in Santillan vs. Bishop of Fresno

*
By Kay Ebeling
Creator, City of Angels Blog

One more post here about the Fresno case, for which a new trial was granted June 12th, before we go on to stories about new lawsuits being filed in Los Angeles. My favorite part of the Bishop of Fresno's “Opposition to Plaintiffs’ Motion for New Trial,” quoted in depth below, is from page 9, where the Bishop claims the abuse took place in a parochial school, not the diocese, two totally different entities.

“Plaintiffs erroneously conflate the corporate defendant, The Roman Catholic Bishop of Fresno, A Corporation Sole, with the school. The school is a separate corporate entity - the Diocese of Fresno Education Corporation. Plaintiffs’ attempt to eliminate this distinction by conflating multiple entities through the generic use of the word ‘Diocese,’ does not eliminate their separate corporate existence.”

Don’t you love how church attorneys conflate and de-conflate their corporate entities as needed?

Why didn't plaintiffs find the new witness W Doe before the March trial? According to W Doe's declaration, after he and his mother reported the abuse to the school principal Sister Vidaline, “I was never again scheduled to serve mass. When I asked later why, I was told I would not be attending St. John’s Catholic school much longer. Within a month or two after I complained about Monsignor (Anthony) Herdegen, I was told I was being expelled from St. John’s Catholic school. Nobody could tell me why I was being expelled. Around 1975 or 1976, I moved away from Wasco, never to return.”

Reading the defense brief, I get the sense the church knew more about W Doe than they let on before the first trial. We should know in mid-July the date for the new trial which was granted earlier this month in the Fresno case. Here are direct quotes from Defense Opposition to Plaintiffs' Motion for New Trial, a motion defense lost, in spite of using the resources of at least two law firms in Fresno and one in Pasadena.

See if you don't agree with me that no matter what the Church Attorneys write here, their clients end up sounding

Guilty
Guilty
Guilty

So much so that while reading some of these quotes, you begin to think you are reading a brief filed by plaintiffs. It must be tough to be a defense attorney with a Roman Catholic bishop for a client-

If you have any conscience….

******************
QUOTES FOLLOW:
Opposition to Plaintiffs’ Motion for New Trial

Plaintiffs’ motion for new trial should be denied. The proffered evidence is neither newly discovered, nor material. What is more, plaintiffs have not demonstrated that it “could not” have been discovered with reasonable diligence.

The claim of newly discovered evidence warranting a new trial is universally looked upon by the courts with distrust and disfavor.

The Evidence is not newly discovered

********************
(Here they go through pages arguing that plaintiffs should have jumped in with this evidence and interrupted the jury, who were already deliberating. These arguments don’t even deserve the time to type them in here.)

**************

Five Pages Later:
QUOTES Continued:

The proferred Evidence could have been discovered with reasonable diligence.

Especially Because Plaintiffs were aware of W Doe more than three years before trial.

*********************
(Well someone was aware of him, if not plaintiffs)
*****************************

QUOTES Continued:

The proferred Evidence could have been discovered with reasonable diligence. This is especially so because plaintiffs were aware of W Doe more than three years before trial.

What is more, a reasonably diligent search could have identified W Doe as a witness. As early as February 2006, plaintiffs and their counsel were aware of the identity of W Doe , and that he had been a student at St. John Evangelist School, and that he was close in age to Howard Santillan and his younger brother Leonard Santillan.

W Doe is identified on St. John Evangelist School documents produced in this litigation pursuant to a third party deposition subpoena propounded by defendant and his address and birth date are included.

But plaintiff’s counsel claims the first he heard of W Doe was during jury deliberations. If this is true, it means that plaintiff’s counsel did not consider the materials produced in discovery and their significance.

*************************
(I can’t help but wonder here, how much did the diocese - and anyone else in their conflagration of corporate entities - really know about W Doe and when.)

****************

Here is where I think the defense motion starts to sound like it’s written for plaintiffs.

********************************

QUOTES Continued:

Numerous indicators pointed to students of St. John, such as W Doe, as sources of evidence. That is because students of the school were more likely to have been abused because of their proximity to the Church and rectory. Even plaintiffs felt that the investigation should focus on the school’s students.

Plaintiffs said that Herdegen acted inappropriately toward and groped many students at St. John’s Evangelist School during school hours while on the school yard, and plaintiffs alleged that Herdegen acted improperly to the school students in advance of and during confession, including fourth, fifth, and sixth graders.

George Santillan said that he saw Herdegen “grab kids on the playground and rub himself. If they were doing something on the playground, he would be out there and he’d be hugging them real close and pulling them up against him and stuff. . . .”

****************************
(This is the point where I threw the document across the room when I first read it, as this is the same description I’ve read about priests’ activity in Los Angeles, and Pennsylvania, who knows how many other places they acted like this - and got away with it.)

*****************************************

QUOTES Continued:

Plaintiff’s counsel argued that Herdegen had been doing the same things to “other kids in the school yard at the school. He did it frequently, he did it regularly, and he did it daily. And it would be hugs and it would be gropes.”

George Santillan testified at trial that Herdegen would come out to the school yard “when we were all playing and all the kids would go running up to him and he would grab the kids and pull them in real close and start hugging and so forth. Seemed like he was rubbing himself on them.”

Although the last sentence was stricken from evidence, it still shows the significance of alleged abuse of students at the school and the importance of discovering students as witnesses. Plaintiffs were clearly aware that it was their “classmates” whom Herdegen was allegedly abusing.

*****************
Do you see what I mean, that it seems weird that defendants would be pointing out all these crimes.

*********************

Quotes, continued:

In Summary, Plaintiffs believed the conduct at the schoolyard was a “red flag.”

Additional indicators point toward discovery directed at the students:

- The number of students of the relevant age during the relevant time period was finite and relatively small; and the number of male students was even smaller. Howard testified in deposition that the only people who knew that Herdegen was molesting children were “boys that were right around my age.”

- Plaintiffs had the school rosters for more than three years before trial, including the rosters that identify W Doe in the same combined class as Howard Santillan and Leonard Santillan.

- Even if the plaintiffs did not want to contact all students, or even just the male students on the roster, it would have been diligent to identify students that both were approximately the same age and those who lived close to the rectory.

The proximity between Herdegen and plaintiffs was an apparent factor that facilitated his abuse of them.

********************
(Did you notice they didn't say alleged abuse, they said “his abuse of them.”)
*********************************

QUOTES continued:

Howard Santillan claimed the proximity gave Herdegen easy access to the Santillan family - Herdegen could see him outside and call him over. In deposition Howard Santillan even emphasized the proximity factor in recounting the first incident when Herdegen groped him.

**************
(Again, not allegedly, but “when Herdegen groped him.”)
****************************

QUOTES Continued:

At trial George confirmed the importance of proximity - when Herdegen first asked him come to the rectory was when he was standing in front of his home.

*****************
Did a lawyer write that sentence?

“When Herdegen first asked him come to the rectory was when he was standing in front of his home.”

That's what it says.
***************************

- Identification of the former students would have been facilitated because the recorded indicated each student’s date of birth, including that of W Doe, which is data that assists in locating individuals.

- The fact that W Doe apparently contacted plaintiffs’ counsel on his own initiative is indicia that he would have been receptive to solicitation by plaintiffs’ counsel or their investigator during the three year period preceding trial.

Even if plaintiffs were to claim that the new evidence could not have been discovered, the claim is suspect, because plaintiffs were able to locate a number of former seminarians who attended Ryan seminary in the late 1940s and early 1950s.

*************************
Huh? Apples and oranges? Grasping at straws?

************************************

QUOTES Continued:

The implication that the defendant should have produced information about W Doe that may be in the school files should not be well received. Plaintiffs argue that “the Diocese” had access to all the files, and if it did not have information about W Doe’s report, then plaintiffs likewise would hnot have that information. Plaintiffs erroneously conflate the corporate defendant, the Roman Catholic Bishop of Fresno, A Corporate Sole, with the school. As addressed in detail below, the school is a separate corporate entity - the Diocese of Fresno Education Corporation.

Plaintiffs did not raise the evidence before the close of trial, and they offered no explanation for their failure to do so.

***********************
More Fiction that is not worth copy typing follows,

Then
*****************************

QUOTES Continued

The school is a separate corporation from the defendant corporation sole. There is no evidence that the school teachers and principal were employees or agents of the defendant corporation sole.

************************
Martin Scorsese, where are you?

Don’t the following lines sound like, with a little rewriting, they could be dialogue for Robert DeNiro playing a character like he played in Casino?

*******************************************

QUOTES Continued:

Plaintiffs argued that the school is run under the auspices of the bishop, but that does not mean that the education corporation is a subsidiary of the department entity known as the Bishop of Fresno, A Corporation Sole. This distinction is apparent in corporations law, as well as in the questions and answers of the testimony of Cardinal Mahoney (sic) cited by plaintiffs.

First, a corporation sole is a corporation that has only a single member.

There is a distinction, however, between the corporation sole and the member.

Second, the only evidence plaintiffs point to is that of Cardinal Mahoney (sic). But, they overstate and mischaracterize his testimony, which does not support their implied assertion that the defendant corporation “owned and operated” the school. The Cardinal’s testimony is that the Bishop is in chage of and operates the schools in the Diocese, and that the bishop and the corporation sole of the Bishop owns and operates the parishes. It does not state that the corporation sole -- the defendant here -- is in charge of and operates the schools. Most certainly there is no evidence that the principal or teachers are employees or agents of the defendant corporation sole.

**********************

Read the above lines again imitating Robert DeNiro. It Works!

************************************

QUOTES Continued

The declaration of W Doe is not material because its credibility is questionable.

First, plaintiffs’ counsel refused to make the witness available for interview. One way of demonstrating that the newly discovered evidence is truthful is to permit the witness to be interviewed by opposing counsel.

In connection with preparing the instant opposition, defense counsel sought to interview W Doe. Plaintiffs’ counsel informed the defense that they now represent W Doe, and declined defendant’s request to communicate with W Doe.


***************
Go, Tony DeMarco
**************************
.

QUOTES Continued:

Finally, the declaration is additionally suspicious because of specificity of recollection of isolated events forty years ago, because the witness apparently failed to take any steps regarding the alleged misconduct throughout his adult life, and because the witness has several criminal convictions.

******************************
How do they know so much about what the new witness has been doing since 1966?
******************************************

Here is more dialogue for Martin Scorsese to rewrite for Robert DeNiro:

**********************

From: Declaration of John T. Steinbock, Bishop of Fresno

As the currently appointed Bishop of the Roman Catholic Diocese of Fresno, I am a board member and president of the Diocese of Fresno Education Corporation.

The Roman Catholic Bishop of Fresno, a corporation sole, is a separate and distinct entity from the Diocese of Fresno Education Corporation.

Signed John Steinbock.

******************
(That's what they teach in seminary these days?)

***********************

ENOUGH!

***********************

We'll revisit Fresno when we hear the date for the new trial.

Click headlines below to read our previous coverage of Fresno

Monday, June 15, 2009

Mahony Fresno testimony counters evidence which plaintiffs were unable to enter during trial, letters scanned here at City of Angels

*By Kay EbelingCreator, City of Angels Blog

I hold in my hands this morning so scan here letters that question the truth of Cardinal Roger Mahony's testimony in the clegy case trial March 2009 in Fresno, California. Plaintiffs could not enter this evidence at trial...

Monday, June 8, 2009

Fresno judge to rule within week on Motion for New Trial by plaintiffs, in pedophile priest case tried March 2009

*By Kay Ebeling
City of Angels Network

Jeff Anderson of Minnesota and Tony DeMarco of LA appeared in Fresno California Superior Court for an afternoon hearing today, on their Motion for New Trial in the Catholic pedophile priest civil lawsuit that went to a verdict earlier this year.

Tuesday, June 2, 2009

Will a Fresno judge allow a new trial re Msgr. Anthony Herdegen? Would bishops withhold evidence or lie under oath?

*By Kay Ebeling
Producer, City of Angels Network

Looking through the personnel file of Monsignor Anthony Herdegen, to me what stood out most is what was not there, in a good two thousand pages of loose sheets documenting Herdegen's 50-year career in Central California parishes.

*****************

Coming up:

Remember the sentencing of Michael Baker in December 2007?

The DA in Los Angeles was able to prosecute and put this one pedophile priest in prison because two victims came forward for whom Baker's crimes were within the statute of limitations.

One of those victims in pseudonym Luis C who began a lawsuit in August of 2007. The case is going through pre-trial motions in Judge Elias’ court, with a hearing on defendants' demurrers on July 18th. We are gathering docs on the Luis C case for upcoming stories, as well as more on the fight in the state supreme court that will affect future suits against the church.

Onward…

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Don’t forget to keep City of Angels alive and thriving by putting cash in our PayPal account, using the Donate button in the top left column.

It costs $33 to go from LA to Fresno on Amtrak …

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PS:

I read the Catholic League quote from today to a former altar boy pedophile priest victim friend, where Bill Donohoe says:

“I am fed up with unscrupulous lawyers and their well-greased professional victims’ groups seeking to plunder the Catholic Church.”

My friend replied, "Well greased was a function of the parish priest when I was a kid."

******



Above, Bishop John Steinbock
.

Judge: New evidence very likely to produce different result on retrial, in case of Santillan vs Bishop of Fresno

*
By Kay Ebeling
Creator, City of Angels Blog

Plaintiffs claim new evidence shows defendant frequently received reports of molestation which were either never documented or the documentation was ‘lost.’ (- Judge granting new trial in Fresno this week)

Plaintiffs also question: If this new witness and his mother reported pedophile behavior in 1967, why is there nothing about the report in the files defendants turned over before the first trial?

A date for new trial should be set at a status conference in Fresno July 15th.

Trying to prevent the new trial, Defendant the Bishop of Fresno claimed since they turned over the name of this new witness during pretrial discovery, his testimony is hardly new evidence. Defendants say plaintiffs had plenty of time to find him and interview him before the March 2009 trial.

The Judge rejected that argument by Defendants saying: “Plaintiffs’ counsel and investigators spent hundreds of hours locating, interviewing, and deposing witnesses.” Actually, all the defendants turned over was a list of names, birth dates, and addresses of the Santillan brothers' classmates.

In the case of the new witness, there was no information after the early 1960s.

“On documents produced by the school during discovery, there was no information provided to plaintiffs by defendant as to W Doe’s current status,” reads the order granting new trial.

Both Santillan brothers claim that since there is no record of W Doe’s report, it helps to prove another claim in their trial, that the Diocese and Bishop of Fresno would take reports of pedophilia and lose them or destroy them. Somehow for some reason there are no reports of any molestation by Anthony Herdegen anywhere in his file, and yet here is this former altar boy saying he came forward with his mother and reported the Monsignor in 1967.

********************
Somehow there is nothing about W Doe and his mother's report in the records turned over to the court and plaintiffs by the church.
********************************

Looks like we'll be seeing Roger Mahony and John Steinbock plus other Catholic Church hierarchy testify all over again in Fresno soon in the retrial of Santillan vs Bishop of Fresno. They will take an oath on the Bible, then explain how there was all this pedophilia in the diocese, yet bishops and even priest MSWs somehow never noticed the crimes.

In order to get smart on Santillan versus Bishop of Fresno, I started reading, then spent the afternoon typing, sections of the judge’s order granting a new trial for younger brother Howard Santillan released Monday. The order is a good read. As is so often the case, the narrative is right there in the legal documents. Once again, it takes no creative wordsmithery, the story reveals itself as the defendants, judges, and plaintiffs speak their lines.

Part two of this story will be quotes from the Fresno Bishop’s opposition to motion for new trial, filed June 8th, a brief that so fully describes criminal activity of Monsignor Herdegen that at one point I had to throw the pages across the room and swear-

And catch my breath -

And I'm pretty acclimated by now to the shock of hearing about new crimes committed by these priests.

The Defense motion opposing a new trial reads almost like it was written by plaintiffs not the Church, it is so full of what I see as more evidence proving the Church’s guilt.

That document is filed by Weakley, Arendt & McGuire LLP in Fresno and Cole Predroza LLP in Pasadena, and I will be posting quotes in part two of this story in a few days.

That's two law firms representing the Catholic Church who filed this opposition, on top of the other law firm which we mentioned earlier, Stammer, McKnight, Barnum & Bailey.

And that's just in Fresno.

So for the record, and a little summertime reading, we copied some of the judge’s order here:

(Read previous City of Angels Coverage of the Fresno trial here http://cityofangels5.blogspot.com/2009/06/is-it-possible-lies-withholding.html

and here

http://cityofangels5.blogspot.com/2009/06/by-kay-ebeling-creator-city-of-angels.html )


***********************
‘Ordinarily the ground of newly discovered evidence is looked upon with suspicion and disfavor’

************************************

Following are direct quotes from the Judge’s order granting motion for new trial:

***********************

Plaintiffs timely move for a new trial following entry of judgment on a jury verdict in favor of defendant, rendered after approximately three weeks of trial. The solid ground for the motion is the alleged discovery by plaintiffs of a person named W Doe (name of the new witness, possible victim, used in court documents , but at City of Angels we call him W Doe.), who claims to have been abused by Monsignor Herdegen and, with his mother, to have reported such abuse in 1967 to the principal of a church school claimed by plaintiffs to be affiliated with defendant. Plaintiffs claim W Doe came forward during jury deliberations after learning of the trial as a result of media coverage and has submitted a declaration in support of the motion.

DISCUSSSION

Newly discovered Evidence As A Basis For A New Trial.
The essential elements which must be established are

1, that the evidence is newly discovered,

2, that reasonable diligence has been exercised in its discovery and production, and

3, that the evidence is material to the movant’s case.

The rule is more applicable on the ground of newly discovered evidence.

Ordinarily the ground of newly discovered evidence is looked upon with suspicion and disfavor. It is a matter of public interest that there be an end to litigation and that a new trial should not be granted for the purpose of enabling a party to produce further evidence, unless he has shown some legally justifiable excuse for not having produced such evidence at the former trial.

But it must also be recognized that “despite the exercise of such effort, cases will sometimes occur where, after trial, new evidence most material to the issues, and which would probably have produced a different result, is discovered.

It is for such cases that the remedy of a motion for a new trial on the ground of newly discovered evidence has been given.

*****************
The Evidence Is “Newly Discovered”
*******************************

The “Evidence” with which the Court is dealing in addressing this motion consists of the proffered testimony of W Doe that he suffered abuse, possible sexual abuse, at the hand of Monsignor Herdegen. For purposes of evaluating whether the “evidence” is newly discovered under the statute, the “evidence” is not simply the identity, or even the address in 1964 or 1965 or birth date, of W Doe.

Despite an investigation and discovery process that consumed many hundreds of hours, W Doe’s proffered testimony was unknown to plaintiffs and their counsel until April 2, 2009, after the case had been submitted to the jury.

Defendant suggests plaintiffs have not shown reasonable diligence because W Doe’s name and some personal information were revealed in some of the documents produced during the course of discovery. Had plaintiffs acted with reasonable diligence, they would have attempted to locate W Doe and interview or depose him before trial.

The question of whether plaintiffs exercised reasonable diligence to discover the evidence before trial is considerably problematic. Plaintiffs seem to suggest they left no stone unturned in their search for evidence of abuse of other victims by monsignor Herdegen.

***********************
W Doe states that after he became an altar boy, on at least six occasions, Monsignor Herdegen…
**********************************

(Excerpts from Order granting new trial in Fresno continued)

Defendant on the other hand argues that plaintiffs failed to exercise reasonable diligence because not only W Doe’s name, but also his birth date and address, were revealed in several documents produced during the course of discovery, and plaintiffs failed to contact people such as W Doe, who presumably were in the best position to testify as to the abuse perpetrated by Monsignor Herdegen, not only on themselves but also on others with whom they were acquainted.

The question for the court is what constitutes reasonable diligence under the peculiar circumstances of this case.

************************
As to Howard Santillan, the Evidence is Material:
*****************************************

(Excerpts from Order Granting New Trial in Fresno Continued)

There must still be a showing that such evidence also is material in the sense that it is likely to produce a different result. Evidence which is merely cumulative or which simply tends to impeach or discredit a witness is insufficient. Each case must be determined by its circumstances and the new trial granted or refused according to the view taken of the whole evidence, in connection with the alleged newly discovered evidence.

The declaration of W Doe submitted in support of the motion states that W Doe attended St. John’s Catholic School starting at the age of six. W Doe became an altar boy for Monsignor Herdegen when he was approximately ten years old. W Doe states that after he became an altar boy, on at least six occasions, Monsignor Herdegen came over to him, bent over, put his hands on each of his cheeks, and stared deeply into his eyes as if he were about to kiss him on his lips.

W Doe also states that within the first year after he became an altar boy, Monsignor Herdegen told him to kneel and pray and then stood in front of him, put one hand behind his head, and began pulling his face to his groin to the point where W Doe’s face was in Herdegen’s cassock.

**************************
Okay, City of Angels has to interject here:

If a guy is pulling a young boy’s face down into his cassock, it’s time for alarms to go off. Remember this was 1967, but imagine a world where this can even happen. The Church needs to clean itself out-

Starting by putting ordinary pants on these men who work there.

*************************************

(Excerpts from Order Granting new trial in Fresno, continued)

W Doe also states that in 1967 after a Saturday morning Mass, Herdegen blocked his exit from a closet and began massaging his shoulders, and then inviting him into the rectory to have a glass of milk. W Doe states he felt “creepy” and so did not accept the invitation.

W Doe says he told his mother about Herdegen’s conduct and thereafter his mother took him to meet with Sister Vidaline, who was the principal of St. John’s Catholic School. At that meeting, which apparently occurred in 1967, W Doe states he told Sister Vidaline that Herdegen had pulled his face into his groin, had held his face, and looked deeply into his eyes, and he had given him a massage.

***************************
At the trial the jury found by a nine to three vote that plaintiffs’ claims were barred
***************************************

(Excerpts from Order Granting New Trial in Fresno continued)

No persuasive reason has been suggested to question W Doe’s credibility.

The materiality of the evidence provided by W Doe lies in the fact that during the trial there was no testimony provided by a witness who claimed to have personally reported abuse to defendant before the last act of abuse was perpetrated against either of the Santillans.

Though the evidence at trial showed that some of the massages by Monsignor Herdegen occurred before the last act of abuse against plaintiffs and were witnessed or known of by persons who arguably were within the Church hierarchy, such evidence was indirect and conflicting, both in its presentation and in its meaning.

Massages constitute a much more ambiguous form of abuse if they are abuse at all, than does the act of pulling a young kneeling boy’s face into a person’s groin.

******************************
Massages constitute a much more ambiguous form of abuse if they are abuse at all, than does the act of pulling a young kneeling boy’s face into a person’s groin.
*****************************************

(Order granting new trial in Fresno continued)

Further, (at trial) there was no clear evidence as to who witnessed the massages and what their position was within the school and the church hierarchy.

Plaintiffs did produce a witness at trial who claimed her son had been abused by monsignor Herdegen and who reported the abuse to defendant. However, the report indisputably occurred after the last act of abuse against plaintiffs. There were no witnesses who testified at trial that they were abused by monsignor Herdegen and reported the abuse before the last act of abuse was visited upon either of plaintiffs.

There was thus substantial question at trial as to whether relevant members of the church hierarchy were on notice of Monsignor Herdegen’s massages and other conduct possibly constituting or creating notice of unlawful sexual conduct, whereas it would appear there would be less question about that where, as is claimed here, the alleged abuse was reported to the principal of a Church school which was established by Defendant for the purpose of fulfilling the defendant’s duties, and under the direct supervision, management, and control of defendant.

**********************
(NOTE: Next post we will quote defendant’s opposition to motion for new trial where they try to claim the Bishop of Fresno has no direct connection to the school…a fun read to come next post on Fresno)
****************************

(Judge order granting new trial in the case of Howard Santillan vs Bishop of Fresno continued:)

According to Cardinal Mahony’s testimony at trial, the school was operated by the Bishop. Based on this and other evidence received during the trial, the court thus rejects the defendant’s claim that as a matter of law, notice to the principal of the school is insufficient as notice to defendant for purposes of section 340.1.

The Court finds there is at least a factual issue for resolution by the jury as to that question.

As to Howard Santillan, therefore, who suffered the last act of abuse in 1973, the evidence is not cumulative, not merely impeaching and, particularly in light of the closeness of the jury vote (9-3), if W Doe is believed, new evidence is very likely to produce a different result on retrial.

As to George Santillan, the Evidence is not material.

The evidence at trial was undisputed that George Santillan suffered the last act of abuse in 1965, “close to 1966,” according to George himself. Thus the evidence provided by W Doe of a report to the school principal in 1967 would be of no assistance to George’s case as to either statute of limitations or notice for purposes of negligence, because the report of abuse occurred after the last act of abuse was suffered by George.

*******************
Plaintiffs also claim the evidence provided by W Doe is material because it shows that defendant frequently received reports of molestation that were either never documented or as to which the documentation was “lost.”
****************************

(Order for new trial in Fresno continued)

Plaintiffs also claim the evidence provided by W Doe is material because it shows that defendant frequently received reports of molestation that were either never documented or as to which the documentation was “lost.”
However, the failure of defendant to document this one claim of abuse from 1967 or the fact that the documentation relating to the abuse was lost, if either was the case, is either cumulative or irrelevant.

It is cumulative because other evidence was received during the trial which challenged defendant either did not document complaints of abuse or, if it did, that it “lost” the documentation.

It is irrelevant because the fact that no record of the abuse exists with regard to W Doe does not establish or even suggest that defendant “frequently received” reports of molestation that were either never documented or as to which the documentation was ‘”lost.’”

Thus the fact that there is no documentation regarding this single claim of abuse, if it is a fact, has no tendency to prove or disprove any fact of relevance to this dispute. As to George, the Court finds the evidence provided by W Doe is not material.

DISPOSITION:

As to plaintiff George Santillan the motion for new trial is denied.

As to plaintiff Howard Santillan, the motion for new trial is granted.

The parties are ordered to meet and confer and agree on a new trial date and submit a stipulation and order to the undersigned for signature. The Court sets a status conference on July 15, 2009 at 3:30 PM in Department 97B.

Signed June 12, 2009 by Donald S. Black

***********************
End of Excerpts from Motion Granting New Trial in Fresno
*************************************

City of Angels has several more stories in the works about Fresno. As soon as the judge sets a date for the new trial, we'll start travel plans.

City of Angels should be able to cover the second trial in the case of Santillan versus the Bishop of Fresno. There is an Extended Stay in the north part of town and I've checked into it. A city bus will get me to the Courthouse each day from the Extended Stay, which is only $34 a night or so. Plus, as we did in Chicago last summer, my TV job will come in at night over the internet, so I'll still be able to work at least part time on my day job, at night, while I cover the trial in Fresno.

So there is a good chance we will cover the trial in Fresno, be there in the front row to look the bishops in the eye as they speak to the public under oath.

Expect we will have to have another PayPal campaign to pay for train fare and two or three weeks at the Extended Stay.

APPEAL FILED:

On 16 June George Santillan filed notice to appeal the April 2nd judgment, which last week was overturned for his younger brother Howard Santillan but not for George.

Which is smart as the Santillan brothers and their lawyers may just find more evidence of notice, dating back to even before the 1950s concerning Monsignor Anthony Herdegen of the Fresno Diocese.

We can get to Fresno from L.A. easy on Amtrak

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OH ALSO

Upcoming stories soon about the Las Vegas connection and the Bernardine Clinic connection and oh there’s so much - I’ll have stories to write late into my old age….


In the video below you can see the players in the upcoming retrial in Fresno. First we see Howard Santillan whose new trial was granted. Peeking from behind Howard is Anthony DeMarco, then older brother George Santillan and DeMarco are walking down the Fresno Superior Court hallway.



This file footage and report comes from ABC 30 Fresno June 15th of the granting of new trial, on their website they provided embedding code for this video. Tony DeMarco is the ever vigilant plaintiff attorney who has litigated hundreds, maybe thousands of motions in Clergy Cases all over the state since 2003.

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In case anyone missed this from the SNAP website:

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Las Vegas:
7 perpetrator priests spent time in Sin City parishes

SNAP Press Statement

For immediate release: Tuesday, June 16, 2009

Statement on seven abusers now living in Las Vegas

(See full statement at http://snapnetwork.org/ )

Statement by Rita Prince

With no subpoena powers or church whistleblowers or special talent or massive effort, our group has found seven Catholic priests who have molested elsewhere, then moved here to Las Vegas.

We suspect there are others, maybe dozens of others.

Here’s who we’ve found right now.

-- Fr. Gus Krumm of California
-- Fr. Theodore Anthony Geerts of Iowa
-- Fr. Edmund Boyle of Washington
-- Fr. Theodore Meisner of Kentucky
-- Fr. Robert A. Bowling of Kentucky
-- Fr. James Beine of Missouri
-- Fr. James Patrick Feeney of Wisconsin

Bishop Pepe should permanently post this information on his diocesan website.

Bishop Pepe should insist that these men live in independent, professionally-run centers so that they can get therapy and so that kids can be safeguarded.

1. Fr. Gus Krumm
Lawsuit filed last week in Orange County Superior Court.
http://www.ocregister.com/articles/diocese-school-krumm-2459723-lawsuit-abuse

Worked at St. James the Apostle Church 1940 N. Martin Luther King Blvd. in Las Vegas in the 1980s
http://www.ocweekly.com/2004-07-22/news/all-aboard-the-pedo-train/1

2. Fr. Theodore Anthony Geerts
Separate lawsuits filed in 2003 and 2005

http://www.bishop-accountability.org/ia-davenport/media/2003-10-31-Ruger-PriestDavenport.htm
http://www.bishop-accountability.org/news3/2005_06_18_Ruger_ManSays_Theodore_Geerts_1.htm
Worked at St. Bridget in Las Vegas in 1991-92.

http://www.bishop-accountability.org/ia-davenport/assignments/Geerts-Theodore-Anthony-Davenport-IA.htm

3. Fr. Edmund Boyle
Lawsuit filed in Seattle in 2003

http://www.bishop-accountability.org/news3/2003_04_26_Tu_AbuseAt_Edmund_Boyle.htm
Pled guilty in 1987 to exposing himself to a mentally retarded 12 year old at a Nevada hospital where he was a chaplain
http://www.seattlepi.com/local/228159_settlement11.html

4. Fr. Theodore Meisner

Lawsuit filed in 2002 in Kentucky

http://www.bishop-accountability.org/news3/2002_07_31_Peter_13More_Daniel_Emerine_ETC_1.htm
Worked at St. Christopher’s parish in Las Vegas I (1984).
http://www.bishop-accountability.org/ky_louisville/accused_priests_R.htm#meisner

5. Fr. Robert A. Bowling

Lawsuit filed in 2003 in Kentucky

http://www.bishop-accountability.org/news3/2003_01_22_Wolfson_9More_Edwin_Scherzer_5.htm

Worked at Our Lady of Las Vegas (1970 - 1972)

http://www.bishop-accountability.org/ky_louisville/accused_priests_R.htm#bowling

6. James Beine (a.k.a. Mar James) from St. Louis MO

Civil suit filed 1994; 7 other suits filed; 2 claims settled for $110,000. Convicted 2003 on possession of child pornography.

http://www.bishop-accountability.org/news3/1994_06_10_Rogers_ManSues_James_Gummersbach_1.htm

Lived in Las Vegas as of 2007

http://www.bishop-accountability.org/news2007/01_02/2007_01_08_BellevilleNewsDemocrat_MissouriAG.htm

7. James Patrick Feeney from Milwaukee WI.
Convicted of abuse in 2004

http://www.bishop-accountability.org/news3/2004_02_27_Wilson_FeeneyVerdict_John_P_Feeney_6.htm

Complaint made in Las Vegas

http://www.bishop-accountability.org/news2008/01_02/2008_01_16_ClarkCountyDistrictCourt_ComplaintIn.htm

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City of Angels is taking particular interest in these Las Vegas cases, which show Sin City was another dumping ground for pedophile priests.

There is a connection with the clinic in San Bernardino.

And my parents used to go to Vegas all the time, they liked it best during the years it was run by the mob, up to the early sixties. So did I. In Las Vegas using an obvious fake ID when I was 16, I was able to gamble and go to shows where there were naked people.

On Sundays my parents would always hit the Las Vegas Catholic Church for a fast Mass before getting back to the tables. Then the jokes they’d tell, especially after the very early AM service, where my dad just couldn't get over how “showgirls,” still in makeup and costume, would show up for their early Sunday morning Mass and Communion before heading home from work.

Showgirls in makeup and costumes, just a little jacket thrown over it, going to church and Communion early Sunday mornings in Las Vegas in the early 1960s.

Ah the wild west. We thought Boston was bad….

Onward.

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Don’t forget to click the PayPal Donate button in top left column about every three months or so - help pay our expenses to go places like Fresno in the near future…..
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POST SCRIPT

The Bishop of Fresno is from Los Angeles:

Bishop Steinbock was born in Los Angeles, California, July 16, 1937. He was ordained to the priesthood May 1, 1963, at the Cathedral of St. Vibiana in Los Angeles by Cardinal James Francis McIntyre. He served as associate pastor in two parishes in East Los Angeles from May 1, 1963, until he was appointed administrator of Santa Isabel parish in East Los Angeles on December 11, 1972. . . . .

In 1991, Steinbock became fourth diocesan bishop of the Diocese of Fresno, California.

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Which one of these men is John Steinbock?





And which one is Eric Sweringen?

WHO?

Fresno Diocese Continues to Let "Accused" Child Molester Work with Children

By Paul Kiesel
Injury Board
March 19, 2009

A little over two years ago, a Fresno jury found Father Eric Sweringen guilty (9-3) of molesting a former altar boy, however, Bishop John J. Steinbock has continued to allow this man to work with children at the Holy Spirit Parish in Fresno, California.

Continued at this link: http://losangeles.injuryboard.com/miscellaneous/fresno-diocese-continues-to-let-accused-child-molester-work-with-children.aspx?googleid=259428
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Or read more about Sweringen at Bishop Accountability under S:

http://bishop-accountability.org/priestdb/PriestDBbylastName-S.html

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Don’t forget to pay for Readership at City of Angels, click the PayPal Donate button in top left column about every three months or so. Help pay expenses for trips to places like Fresno in the near future…..

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Onward...