Ratcliff v. Roman Catholic Archbishop of L.A.

Filed 5/19/22; Modified and Certified for Publication 6/15/22 (order attached)
Opinion following transfer from Supreme Court
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CHARLES RATCLIFF, JR., et B302558
al.,
(Los Angeles County Super.
Plaintiffs and Respondents, Ct. No. 19STCV20138)
v.
THE ROMAN CATHOLIC
ARCHBISHOP OF LOS
ANGELES et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Elizabeth R. Feffer, Judge. Affirmed.
McKool Smith Hennigan, J. Michael Hennigan, Lee W.
Potts and Elizabeth S. Lachman for Defendants and Appellants.
Law Offices of Anthony DeMarco, Anthony M. DeMarco;
Esner, Chang & Boyer, Holly N. Boyer, Shea S. Murphy and
Kevin K. Nguyen for Plaintiffs and Respondents.
__________________________
Seven adults allege they were molested by a priest when
they were children. They brought suit against The Roman
Catholic Archbishop of Los Angeles and related entities
(Archdiocese or defendants), alleging defendants were vicariously
liable for ratifying the molestation and directly liable for their
own negligence in failing to supervise the priest, and related acts
and omissions. The Archdiocese moved to strike the operative
complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16),
arguing that some of the acts by which it purportedly ratified the
molestation or acted negligently constituted speech or litigation
conduct protected by the anti-SLAPP statute. We conclude the
anti-SLAPP motion was appropriately denied, and therefore
affirm.
FACTUAL ALLEGATIONS
1. The Parties
Plaintiffs are seven alleged molestation victims; some sued
in their own names, others preferred a “John Doe” designation.
As their identities were revealed in discovery, the Archdiocese
calls them all by their names in its briefs on appeal. In contrast,
plaintiffs continue the naming conventions of their complaint,
using names for some plaintiffs and John Does for others. In an
abundance of caution, and to aid readability, we refer to the
plaintiffs, in chronological order of alleged molestation, as Doe 1
through Doe 7.
Defendants are The Roman Catholic Archbishop of Los
Angeles, a corporation sole; the Archdiocese of Los Angeles
Education and Welfare Corporation; and three individual
Catholic churches where the molestation allegedly occurred
(St. Christopher in West Covina, St. Mary in Palmdale, and
St Lawrence Martyr in Redondo Beach). For our purposes and
2
unless the context requires otherwise, it is sufficient to refer to
the defendants collectively as the Archdiocese. The priest who
allegedly committed the molestation, Father Christopher
Cunningham, is not a named defendant. Plaintiffs allege that
the Archdiocese is liable for Father Cunningham’s alleged acts of
molestation.
At the time the anti-SLAPP motion was denied, the trial
court also sustained with leave to amend the defendants’
demurrer, on the grounds of lack of specificity. The trial court
expressed concern that the operative complaint was not clear as
to which complainant was alleging which cause against which
defendant.
2. The Facts as Alleged in the First Amended Complaint
The operative first amended complaint paints the picture of
an Archdiocese which was willfully blind to its strong suspicions
– and, perhaps, actual knowledge – of Father Cunningham’s
misconduct. We reiterate, these are only allegations. Plaintiffs
allege that, rather than taking curative action in response to
suspicions of, and accusations against, Father Cunningham with
investigations, supervision, and limitation of access to children,
the Archdiocese swept the charges under the proverbial rug and
simply reassigned Father Cunningham to other parishes, where
he was free to molest again.
We discuss the allegations in some detail, with particular
attention to those by which plaintiffs assert the Archdiocese is
liable for Father Cunningham’s acts of abuse and molestation.1
1 We observe at the outset that the anti-SLAPP analysis has
two prongs – first, whether the complaint arises from protected
activity as described in the anti-SLAPP statute; and second,
3
A. Allegations Concerning the Archdiocese’s Preexisting
Policy for the Prevention of Child Molestation by
Priests
According to the complaint, by 1989, prior to Father
Cunningham’s ordination, the Archdiocese had received
complaints that no less than 22 of its priests had sexually
molested children. It therefore “reduced to writing its policies for
the prevention of child molestation by its priests,” and provided a
copy to all priests. “The policy prohibited priests: (1) having
minors in their living quarters; (2) taking minors on
unchaperoned outings; [and] (3) tickling, wrestling, kissing or
hugging minors.”
Father Cunningham was ordained a priest in the
Archdiocese in 1990, when the written policy was in effect.
B. First Parish – Doe 1
Father Cunningham was first assigned as an associate
pastor at St. Christopher. As alleged, “Soon after his arrival he
began wrestling minors, tickling them, and asking them to go
with him unchaperoned to movies and other fun activities.” This
was done openly on the school playground, visible to parish
employees.
whether the plaintiff has established a probability of prevailing.
(Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1061 (Park).) We resolve this appeal on the first
prong – whether the allegations of the complaint arise from
protected activity. The evidence submitted by both parties
related to the second prong – whether the plaintiffs have a
probability of prevailing – is not directly relevant to whether the
complaint arises from protected activity. Nevertheless, we
describe the factual allegations in detail in order to provide
context for our analysis of the first prong.
4
One of the boys who received the attention of Father
Cunningham was 12-year-old Doe 1, whose mother worked at the
church. One day in 1991, when Father Cunningham learned that
Doe 1’s mother was away on church business, Father
Cunningham went to Doe 1’s home. He went to the door and
asked for Doe 1’s mother; Doe 1 told Father Cunningham that his
mother was not home and Father Cunningham could not come in.
Father Cunningham entered anyway and sat down on the sofa
next to the boy. Father Cunningham rubbed the boy’s back and
thigh, despite Doe 1’s attempts to move away. Father
Cunningham was interrupted by Doe 1’s mother, who returned
home early. She told Father Cunningham that he was not
permitted in their home without her permission. She reported
the conduct to a nun at the church and the church school’s
principal. Doe 1 also complained to the parish pastor. Father
Cunningham continued his prohibited interactions with young
boys unabated, “taking them to the movies, giving them gifts,
playing with them and tickling them.” Doe 1’s mother believed
this was “sexualized conduct” and that he was “grooming young
boys.”
C. Second Parish – Does 2, 3 and 4
In 1994, Father Cunningham was assigned as an associate
pastor at St. Mary. That year, the Archdiocese updated its policy
for the prevention of child molestation. Now, the policy required
any priest who became aware of a fellow priest’s violation of the
Archdiocese’s policy to confront the violator and report the
violation to the Vicar for Clergy.
According to the complaint, at St. Mary, Father
Cunningham continued to violate the policy – he spent
“extraordinary amounts of time alone with teen boys.” He took
5
them to the movies or for ice cream one-on-one; he wrestled them;
he hugged them; he had them alone in his rectory bedroom.
Parish staff observed Father Cunningham’s conduct with the
boys. The church pastor was aware that Father Cunningham
had boys one-on-one alone with him in his rectory bedroom; the
pastor informed parish staff that Father Cunningham was not
allowed to have minors alone with him in his bedroom.
One of these boys was Doe 2 – Father Cunningham
regularly wrestled with him and spent time alone with him in his
bedroom. At least one other priest, Father Gleason, “expressed
concern” about Father Cunningham bringing Doe 2 into the
rectory. There were two incidents in which Father Cunningham
wrestled with Doe 2 until one of Doe 2’s family members stopped
the wrestling when they believed the physical contact was
inappropriate. In one such incident, Father Cunningham’s groin
was pressing against the child’s rear end. When Doe 2 was 12 or
13, Father Cunningham took him alone to the movies and, during
the movie, massaged the boy’s genitals with his hand. Sometime
later, he invited Doe 2 to his rectory bedroom. There, he told the
boy that the Holy Spirit had a special connection with them and
that was why they had a special way of showing affection, which
nobody else could understand – Father Cunningham was groping
the boy as he said this, and continued to engage in further sexual
conduct. Doe 2 did not report this because Father Cunningham
“was his friend and priest, because he believed him, because he
loved him and trusted him.”
Doe 3 worked in the parish office. Father Cunningham
wrestled with Doe 3 in his rectory bedroom. Father Gleason, the
priest who had “expressed concern” about Father Cunningham
bringing Doe 2 into the rectory, warned Doe 3 “not to trust
Father Cunningham.” Shortly after this warning, Father
6
Cunningham came into the parish office where Doe 3 was
working alone and molested him by touching his genitals.
Doe 4 was an altar server at St. Mary. Father
Cunningham molested him as well, hugging him, caressing his
lower back, and putting his fingers inside Doe 4’s pants. Doe 4,
who was then 15, felt like Father Cunningham was making a
sexual advance and he felt trapped. He told his mother that he
did not want to be around Father Cunningham anymore. His
mother agreed that he need not be. She then paid more attention
to Father Cunningham and learned that he invited many boys
out one-on-one. Doe 4’s mother suspected that he may be acting
inappropriately with the boys.
Plaintiffs also alleged that Father Miskella, another priest
at St. Mary, wrote an evaluation in which he characterized
Father Cunningham as too “immature.” “Immature” has been “a
code word used by Catholic Clergy for many years to describe a
priest who spends too much time with minors and who is possibly
sexually abusing them.” Father Miskella also confidentially
informed the Vicar for Clergy that he should speak with Father
Gleason about Father Cunningham. Father Miskella concluded
that Father Cunningham “is not mature enough to be a pastor.”
There is no indication that “any effort was made to discuss with
Father Gleason his concerns or thoughts regarding Father
Cunningham.”
In 1998, a new priest became the administrator at St.
Mary. Having learned that Father Cunningham had an
underage boy in his rectory bedroom, the administrator counseled
him not to do this. He also reported to the Archdiocese that
“Father Cunningham was immature and had instances of
imprudent conduct.” As alleged, there was no follow-up.
7
In 1999, a complaint was made to the Vicar for Clergy that
Father Cunningham had molested a minor (not one of the
plaintiffs here). The Vicar for Clergy subsequently acknowledged
that complaint in a letter, which also stated that “all such records
were going to be maintained permanently” by the Archdiocese,
but those records are presently missing. There is no record that
the Archdiocese conducted any investigation into this complaint.
D. Third Parish – Does 5, 6 and 7
In 1999, Father Cunningham was transferred to St.
Lawrence Martyr, still as an associate pastor. He immediately
resumed “taking underage parish boys on unchaperoned outings,
wrestling them, tickling them, hugging them, and having them in
his rectory bedroom.” All of this conduct was known to parish
priests.
Doe 5 was a student at St. Lawrence Martyr; Father
Cunningham sexually abused him on multiple occasions on
school grounds and during school activities – including, at one
point, reaching into the boy’s gym shorts and touching his
genitals. Doe 5 told his mother that Father Cunningham was
“harassing” him. His mother reported this to church staff, but
nobody followed up on Doe 5’s complaints, and Father
Cunningham’s behavior continued unchecked. When the school
year ended, Doe 5 and his mother stopped attending that church.
The head pastor, Monsignor Lenihan, telephoned and apologized
to Doe 5’s mother for Father Cunningham’s conduct, explaining
that he “was immature and that he had maturity issues.”
The complaint alleged that Does 6 and 7 were also molested
by Father Cunningham at St. Lawrence Martyr. It began with
wrestling, hugging, and tickling, and escalated to Father
Cunningham having the boys alone in his rectory bedroom where
8
he “sexually molested them in significant ways.” This behavior
continued until shortly before Father Cunningham left the parish
in 2001. Parish staff members were aware that Father
Cunningham had underage boys alone in his rectory bedroom; at
least one parish staff member reported this to the head pastor,
Monsignor Lenihan. Instead of taking action to address the
complaint, Monsignor Lenihan “actively championed” Father
Cunningham and supported him so that he would be promoted
from associate pastor to pastor of his own parish.
E. Aftermath
The complaint alleged that, in 2001, “despite all of the
complaints that Father Cunningham was sexually abusing
under-aged boys, despite all the complaints and awareness of his
routine violation of [the Archdiocese’s] policies and prohibitions of
the prevention of priests sexually molesting minors,” he was
promoted to pastor and assigned to his fourth church, St. Louise,
in Covina. He immediately continued wrestling boys, taking
them on unsupervised outings and having them in his rectory
bedroom. An associate pastor complained in writing to the
Archdiocese about Father Cunningham’s conduct with teen boys.
Although the associate pastor identified some of the boys by
name, there is no record that the Archdiocese investigated by
interviewing the young men.
Continued complaints were made to the Archdiocese
regarding Father Cunningham’s conduct, including that he was
observed “kissing two late teen boys at a local Denny’s.” Father
Cunningham identified one of the boys to the Archdiocese (the
boy confirmed the kiss, and said it was “routine”), but the
Archdiocese made no attempt to identify the other boy.
In 2004, Father Cunningham moved to his fifth
9
assignment (Our Lady of Assumption, in Ventura). A few months
later, he was accused of suspicious conduct with a minor on a trip
to Europe – he was discovered in a hotel room, alone with a
minor, with the minor’s belt in his hands. There is no record of
the Archdiocese “taking any action to either investigate the
complaint or impose any discipline upon Father Cunningham.”
Instead, Father Cunningham took a leave of absence, and the
Archdiocese began financially supporting him.
In 2008, Father Cunningham was listed on an Archdiocese
document as “having a credible allegation of child sexual abuse
having been made against him.” Plaintiffs also alleged that in
2015, another victim of Father Cunningham’s – who is not a
plaintiff in this action and to whom we refer as Roe – brought
suit against Father Cunningham. In 2017, the Los Angeles
County Sheriff’s Department began a criminal investigation into
complaints against Father Cunningham. The Archdiocese had
continuously paid for Father Cunningham’s maintenance and
support since 2005, and did not stop in response to Roe’s civil suit
or the criminal investigation. The Archdiocese paid for lawyers
to defend him, hired an investigator to “dig up dirt” on his
victims, paid for Father Cunningham to fly to Los Angeles to
attend depositions of the victims “in an attempt to intimidate
them and silence them,” and tried to sway the prosecution away
from bringing charges. In January 2019, the Archdiocese settled
the civil action brought by Roe for “a life-changing” sum. Even
after settling the Roe action, the Archdiocese “authorized the
continued financial support” of Father Cunningham “and of the
lawyers representing him, so that they could continue to lobby
the Los Angeles District Attorney against pressing criminal
charges for child molestation against Father Cunningham.”
10
PROCEDURAL BACKGROUND
1. The Complaint
Plaintiffs filed their original complaint in this case on
June 10, 2019.2 The first amended complaint was filed one
month later. The complaint states three causes of action,
although only the first two are at issue in this appeal.3
Before it formally identifies the specific causes of action,
the complaint alleges the lengthy history of Father
Cunningham’s abuse of minors within the church, including his
specific molestation of the seven plaintiffs. We have summarized
those allegations above. The complaint also includes general
allegations that the Archdiocese, through its “agents and
managing agents, knew of prior complaints that Father
Christopher Cunningham had sexually molested a minor(s), prior
to the end of his abuse of Plaintiffs. [The Archdiocese] through
[its] agents and managing agents, knew or had reason to know
that Father Christopher Cunningham routinely violated rules of
Defendants that were designed to prevent child molestation by
clergy.” It further alleges that Father Cunningham was a “priest,
employee and an agent” of the Archdiocese when he met the
plaintiffs and abused them. It alleges that, at all times, the
Archdiocese, “employed, supervised and controlled the
2 Some of the plaintiffs in this action had previously filed
separate actions, which they then voluntarily dismissed without
prejudice, prior to bringing this action.
3 The third cause of action was for violation of civil rights
under the Unruh Civil Rights Act. (Civ. Code, § 51.) In response
to the defendants’ demurrer, plaintiffs agreed to withdraw this
cause of action. Ultimately, plaintiffs orally dismissed the Unruh
Act cause of action with prejudice.
11
employment as a priest of” Father Cunningham, as well as the
other employees and agents at the churches where he worked.
The first cause of action is for “Child Sexual Abuse/Sexual
Battery.” It alleges that the Archdiocese is vicariously liable for
the sexual abuse committed by Father Cunningham because it
both authorized and ratified the abuse. Plaintiffs alleged that
the Archdiocese “ratified and/or approved of the sexual
misconduct by failing to adequately investigate, discharge,
discipline or supervise” Father Cunningham. They allege the
Archdiocese further ratified the abuse by “concealing evidence of
sexual abuse of other children by” Father Cunningham from
plaintiffs, their families, law enforcement, and other Archdiocese
personnel “who could have been in a position to prevent the abuse
of Plaintiffs” if they had known of the prior complaints.
The complaint alleges, “Defendants have routinely over the
years failed to discipline, investigate or terminate known child
molesting priests. Instead, Defendants condoned the conduct of
priests molesting children by protecting offending clerics from
public scorn and civil authorities, often transferring them from
town to town, county to county, state to state, and country to
country, all to allow child molesting priests to escape prosecution
and protect their reputations, as well as the reputation of the
Defendants. By doing so, Defendants have systematically
encouraged and condoned this conduct by more priests including
Father Christopher Cunningham.”
The complaint then contains several paragraphs of
allegations stating that, upon learning of Roe’s civil complaint
against Father Cunningham, and despite knowledge “of other
complaints that Father Christopher Cunningham had molested
children,” the Archdiocese nonetheless “opted to immediately
begin paying for Father Christopher Cunningham’s personal
12
lawyer” and “continued its financial support of Father
Christopher Cunningham.” Even after learning of additional
complaints against Father Cunningham – including those of
several plaintiffs in this case, the Archdiocese “continued its
support of and continued paying for the defense” of Father
Cunningham in both the Roe litigation and criminal
investigation. “Those efforts continue to the present day.”
Notably, while these paragraphs detail the Archdiocese’s
continued financial support of Father Cunningham after the
evidence mounted against him, they do not specifically allege
that this support constituted ratification of the sexual abuse.
The second cause of action is for negligence. Plaintiffs
allege that by law the Archdiocese had a special relationship with
the children entrusted to its care, which gave rise to a duty to
protect them from harm. Plaintiffs allege, “Defendants, by and
through their agents, servants and employees, knew or
reasonably should have known of Father Christopher
Cunningham’s dangerous and exploitive propensities and/or that
Father Christopher Cunningham was an unfit agent. It was
foreseeable that if Defendants did not adequately exercise or
provide the duty of care owed to children in their care, including
but not limited to the Plaintiffs, the children entrusted to
Defendants’ care would be vulnerable to sexual abuse by Father
Christopher Cunningham.”
Plaintiffs allege that defendants breached this duty of care
by allowing Father Cunningham “to come into contact with the
minor Plaintiffs without supervision; by failing to adequately
supervise, or negligently retaining Father Christopher
Cunningham who they permitted and enabled to have access to
Plaintiffs; by failing to investigate or otherwise confirm or deny
such facts about Father Christopher Cunningham; by failing to
13
tell or concealing from Plaintiffs, Plaintiffs’ parents, guardians,
or law enforcement officials that Father Christopher
Cunningham was or may have been sexually abusing minors;
and/or by holding out Father Christopher Cunningham to the
Plaintiffs and their parents or guardians as being in good
standing and trustworthy.”
Next, plaintiffs allege that the Archdiocese had a duty “to
educate, train and warn” plaintiffs “regarding prevention,
detection and reporting of child abuse” to help safeguard them,
but failed to do so. Plaintiffs allege a breach of duty arising from
the Archdiocese’s decision to give copies of its written policies for
the prevention of child molestation only to priests. The
Archdiocese also had a duty to provide the policies to nonpriest
parish staff and parents in the community, people who could
have reported that Father Cunningham was routinely violating
these policies.
Finally, plaintiffs allege that a number of parish staff
members who witnessed Father Cunningham’s suspicious
conduct were mandated reporters under Penal Code section
11165.7, but the Archdiocese violated its obligation under the law
to educate them about their reporting duties – a violation which
was a proximate cause of plaintiffs’ abuse.4
2. The Demurrer
On August 29, 2019, defendants demurred. The demurrer
raised numerous grounds, including misjoinder of plaintiffs,
4 Mandated reporters under Penal Code section 11165.7
include teachers, teacher’s assistants, private school
administrative officers, clergy members, and custodians of
records of clergy members.
14
misjoinder of defendants, and failure to state a cause of action.5
Plaintiffs opposed the demurrer. The trial court heard the
demurrer and anti-SLAPP motion together.
3. The Anti-SLAPP Motion
On September 25, 2019, the Archdiocese filed its anti-
SLAPP motion.
A. Overview of Anti-SLAPP Motions
An anti-SLAPP motion presents a means by which a
defendant, sued for conduct in furtherance of the constitutional
right of petition or free speech, can place the burden on a plaintiff
to establish that there is a probability of prevailing on the claim
or face early dismissal of the action. (Code Civ. Proc., § 425.16,
subd. (b)(1).) If the defendant first establishes a prima facie
showing that a claim is based on so-called “protected activity,”
the burden switches to the plaintiff to establish the lawsuit has
at least minimal merit. (Park, supra, 2 Cal.5th at p. 1061.)
Before a trial court may proceed to the second prong, the
moving defendant must satisfy the first prong – that is, establish
that the cause of action arises from protected activity, as the term
is defined by statute. Code of Civil Procedure section 425.16,
subdivision (e) is the operative provision and describes four
categories of protected speech and conduct: “(1) any written or
oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
5 Although we refer to the defendants collectively as “the
Archdiocese,” the complaint was filed against a number of
different defendants, and the defendants argued as part of their
demurrer that several of them were improperly named because
the complaint did not specifically identify what each defendant
purportedly did to be liable to each plaintiff.
15
law, (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official
proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in
connection with an issue of public interest, or (4) any other
conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection
with a public issue or issue of public interest.”
B. Defendants’ Argument in Support of their Anti-
SLAPP Motion
The Archdiocese’s anti-SLAPP motion argued that the
complaint was based on both protected speech and litigation
conduct.
As to the first cause of action for sexual abuse, the
Archdiocese argued that the only allegations against it were its
support of Father Cunningham in Roe’s civil action and in the
sheriff’s criminal investigation – conduct it argued was protected
litigation activity.
As to the negligence cause of action, the Archdiocese
focused on a handful of allegations from plaintiffs’ complaint
which could be characterized as speech – or, more precisely, the
decision not to speak – on an issue of public interest, and argued
that those allegations were, in fact, the basis of the complaint
against it. Those allegations were: (1) the failure to inform
parish communities about allegations of abuse against Father
Cunningham and instead holding him out as trustworthy; (2) the
failure to communicate the Archdiocese’s policy for the prevention
of molestation to nonpriest staff and members of the community;
(3) the failure to educate, train and warn plaintiffs about sexual
16
abuse; and (4) the failure to inform staff who were mandated
reporters about their duties as mandated reporters under the
law.
The parties disagree on appeal as to whether, and to what
extent, the Archdiocese sought to strike specific allegations from
these two causes of action, rather than the causes of action in
their entirety. To be sure, the Archdiocese’s formal “Notice of
Motion” indicated that the motion would seek, in the alternative
to striking both causes of action, to strike a number of individual
paragraphs, subparagraphs, and lines of the first amended
complaint (identified by paragraph and line number). 6 But the
Archdiocese did not address this alternative in its memorandum
of points and authorities in support of the motion—though it
should have.7 Instead, the Archdiocese argued in its supporting
papers that the causes of action were based on protected activity
as a whole. For this reason, the trial court – and this court in its
initial majority opinion – approached the anti-SLAPP motion as
if the motion had addressed the entirety of each cause of action
and not individual allegations.
6 The notice of motion also raised a second alternative
argument – that the first and second causes of action should be
dismissed (1) for failure to state a claim, and (2) as barred by
several statutory privileges and the Establishment clause. The
Archdiocese does not pursue this alternative argument on appeal.
7 Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral) ([“At the
first step, the moving defendant bears the burden of identifying
all allegations of protected activity, and the claims for relief
supported by them”], italics added.)
17
C. Plaintiffs’ Opposition
Plaintiffs’ opposition to the motion argued that the speech
and petitioning conduct identified in the Archdiocese’s motion
were merely supporting evidence of the Archdiocese’s vicarious
liability, not the tortious acts on which the complaint was based.
Plaintiffs argued the complaint was about conduct: Father
Cunningham’s sexual abuse and the Archdiocese’s “failures to
take appropriate steps to prevent that abuse.”
As to the first cause of action, plaintiffs argued that the
Archdiocese’s payment of Father Cunningham’s attorney fees was
merely evidence of the Archdiocese’s ratification of his
molestation. But it was the ratification itself that rendered the
Archdiocese vicariously liable. Plaintiffs explained that the
Archdiocese was aware of Father Cunningham’s molestation and
routine violation of its policies for the prevention of molestation.
Despite that knowledge, the Archdiocese ratified Father
Cunningham’s conduct by its failure to “investigate, discipline or
better supervise him,” its “withholding of or destruction of
records of complaints,” its “promotion of Father Cunningham
after such complaints,” and its “support of him financially
throughout.”
Plaintiffs argued that their negligence cause of action was
based on three theories, which they itemized as negligent
supervision and retention; negligence per se under the
mandatory reporting statutes; and negligent “failure to educate
train or warn.” Plaintiffs argued that negligent supervision and
retention of Father Cunningham is not protected speech or
litigation activity. As to the other theories, plaintiffs argued that
inaction does not rise to the status of protected conduct.
18
D. The Archdiocese’s Reply
In reply, the Archdiocese acknowledged that plaintiffs took
the position that the conduct on which they based their first
cause of action was the molestation itself. But, they responded,
“That, however, is contrary to the allegation that the acts that
make the Archdiocese liable ‘in the present case’ are actions in
the prior [Roe] litigation. [Citation.] There is no claim against
Cunningham in this case. The allegations regarding
Cunningham and molestation are ‘Background Facts.’ [Citation.]
The alleged ‘liability-creating activity’ of the Defendants for
ratification is acts in furtherance of the right to petition the
Court.”8
8 This argument, which the Archdiocese continues to pursue
on appeal, is a misquoted citation to the plaintiffs’ use of “In the
present action” at the beginning of paragraph 112 of their
complaint. The language of paragraph 112 is not without some
uncertainty; nonetheless, it does not support the interpretation
the Archdiocese pursues. Plaintiffs allege, “In the present action,
after learning of the first lawsuit filed against Father
Christopher Cunningham in 2015 alleging Father Christopher
Cunningham did sexually molest the plaintiff when the plaintiff
was a minor, the [Archdiocese], despite its knowledge of other
complaints that Father Christopher Cunningham had sexually
molested children opted to immediately begin paying for Father
Christopher Cunningham’s personal lawyer.” This appears to be
an allegation that the Archdiocese chose to pay for Father
Cunningham’s defense in the present action itself, despite its
knowledge of the myriad accusations against him. It is not, as
the Archdiocese interprets it, a representation that all allegations
that came before are mere background, and the allegations that
follow are the only allegations on which liability is based “[i]n the
present action.”
19
As to negligence, the Archdiocese reasserted that the
negligence claims arose out of protected speech, and more
precisely, its decision to not speak.
E. Hearing and Ruling
After spirited argument, the trial court stated that, when
focusing on the allegations of the complaint, “[t]his case is really
about, allegation-wise, a failure to properly investigate and train
and report acts of child abuse and at what level there should
have been training, at what level there should have been
reporting.” The court rejected the Archdiocese’s argument that
the first cause of action arose from its litigation conduct,
concluding, “it’s clear that plaintiffs’ cause of action for sexual
assault and sexual battery is based upon and seeks to recover
damages for Father Cunningham’s improper sexual conduct
related to the plaintiffs,” and the Archdiocese’s vicarious liability
for it. Accordingly, the court concluded the complaint did not
allege conduct protected by the anti-SLAPP law.
As to the cause of action for negligence, the court found
that plaintiffs had alleged a breach of duty of care by allowing
Father Cunningham to come into contact with the plaintiffs
without adequate supervision, negligently retaining him, failing
to investigate allegations of misconduct, concealing from
plaintiffs, their parents and law enforcement that Father
Cunningham was or may have been sexually harassing children,
and holding Father Cunningham out as trustworthy. While the
court recognized there may be speech, or lack of speech, involved,
the court believed that, viewed in its entirety, the cause of action
20
was not based on protected conduct. The anti-SLAPP motion was
denied.9
The court then turned to the demurrer, and sustained it on
several grounds with leave to amend.10
The Archdiocese filed a timely notice of appeal from the
denial of its anti-SLAPP motion.
9 On appeal, the Archdiocese characterizes the trial court’s
ruling as follows: “Even though it found that no claim was
legally sufficient, it denied the motion because it disapproved of
the petitioning and speech activities involved.” Our review of the
record reveals a conscientious trial court attempting to properly
rule on a motion implicating a challenging and complex area of
the law.
10 The trial court’s ruling on the demurrer was as follows:
“The Demurrer is OVERRULED on commonality ground.
The Demurrer is SUSTAINED as to specificity ground. The
Court sustains the demurrer as to the 4th, 8th to 16th causes of
action. The Court overrules the demurrer as to 1st, 2nd, 3rd, 5th,
6th, 7th, and 17th causes of action.
“The Court grants 30 days leave to amend. Counsel are to
meet and confer on the issue.”
By “causes of action,” we presume the court was referring
to the multiple enumerated grounds expressly asserted in the
demurrer; the complaint itself had only three causes of action,
one of which plaintiffs dismissed.
The parties disagree whether the court’s ruling reflected its
view of the substantive merits of the complaint. As the ruling on
the demurrer is not before us on appeal, as we explain in Part 4
of our discussion, we express no opinion.
21
4. Initial Appeal and Supreme Court Remand
On appeal, we affirmed the trial court’s decision on the
anti-SLAPP motion. The Archdiocese sought review. On
September 1, 2021, the Supreme Court remanded the matter
with directions that we vacate our decision and reconsider it in
light of its recent decision in Bonni v. St. Joseph Health System
(2021) 11 Cal.5th 995, 1009-1012 (Bonni). We vacated our
decision, received additional briefing, held oral argument, and
now reconsider our opinion.11
DISCUSSION
1. Standard of Review; Protected and Unprotected
Activity
“We review de novo the grant or denial of an anti-SLAPP
motion. [Citation.] We exercise independent judgment in
determining whether, based on our own review of the record, the
challenged claims arise from protected activity. [Citations.] In
addition to the pleadings, we may consider affidavits concerning
the facts upon which liability is based. [Citations.] We do not,
however, weigh the evidence, but accept plaintiff’s submissions as
true and consider only whether any contrary evidence from the
defendant establishes its entitlement to prevail as a matter of
law. [Citation.]” (Park, supra, 2 Cal.5th at p. 1067.)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim. [Citations.] Critically,
‘the defendant’s act underlying the plaintiff’s cause of action must
itself have been an act in furtherance of the right of petition or
free speech.’ [Citations.]” (Park, supra, 2 Cal.5th at pp. 1062-
11 During supplemental briefing, plaintiffs moved to strike
certain portions of the Archdiocese’s brief. We deny the motion.
22
1063.) “To determine whether a claim arises from protected
activity, courts must ‘consider the elements of the challenged
claim and what actions by the defendant supply those elements
and consequently form the basis for liability.’ [Citation.] Courts
then must evaluate whether the defendant has shown any of
these actions fall within one or more of the four categories of
‘ “act[s]” ’ protected by the anti-SLAPP statute. [Citations.]”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)
When a cause of action contains both protected and
unprotected activity, the defendant may move to strike particular
claims supported by allegations of protected activity within that
cause of action. (Baral, supra, 1 Cal.5th at p. 392.) Even when
the moving defendant seeks only to strike a cause of action in its
entirety, courts must analyze each separate claim for relief
within the cause of action to determine whether the acts are
protected. (Bonni, supra, 11 Cal.5th at pp. 1010-1011.) However,
“[i]f a cause of action contains multiple claims and a moving
party fails to identify how the speech or conduct underlying some
of those claims is protected activity, it will not carry its first-step
burden as to those claims.” (Id. at p. 1011; Pech v. Doniger (2022)
75 Cal.App.5th 443, 459.)
As we have observed, in the trial court the Archdiocese’s
supporting papers addressed each of the two causes of action in
plaintiffs’ complaint as a whole. On appeal, however, the
Archdiocese relies on the alternative argument raised in its
Notice of Motion: that individual allegations of the complaint
should be stricken.
23
We consider each cause of action individually. To the
extent a cause of action is based on multiple claims for relief, we
consider the claims separately.12
2. First Cause of Action – Child Sexual Abuse/Sexual
Battery
Plaintiffs’ first cause of action is for child sexual
abuse/sexual battery, and alleges the Archdiocese is liable for
Father Cunningham’s molestation of plaintiffs due to its
authorization and ratification of that conduct.
A. Law of Ratification
“ ‘As an alternate theory to respondeat superior, an
employer may be liable for an employee’s act where the employer
either authorized the tortious act or subsequently ratified an
originally unauthorized tort. [Citations.] The failure to
discharge an employee who has committed misconduct may be
evidence of ratification. [Citation.] The theory of ratification is
generally applied where an employer fails to investigate or
respond to charges that an employee committed an intentional
tort, such as assault or battery. [Citations.] Whether an
employer has ratified an employee’s conduct is generally a factual
question. [Citation.]’ [Citations.]” (C.R. v. Tenet Healthcare
Corp. (2009) 169 Cal.App.4th 1094, 1110-1111.) “A principal may
be liable when it ratifies an originally unauthorized tort.
[Citations.] And generally, the ratification relates back to the
time the tortious act occurred. [Citations.] As noted, ratification
12 In Baral, the Supreme Court indicated that it sometimes
used “cause of action” to refer to a count as pleaded, while the
proper subject of an anti-SLAPP motion is a “claim.” (Baral,
supra, 1 Cal.5th at p. 382.) We follow that convention.
24
may occur when an employer learns of misconduct and fails to
discharge an agent or employee. [Citations.]” (Id. at p. 1111.)
Ratification is not itself a tort, but a doctrine that holds the
ratifying party liable for the tort committed by another party. It
is the voluntary election by a party to adopt, as its own, an act
purportedly done on its behalf by another, the effect of which is to
treat the act as originally authorized by the ratifier. (Lebrun v.
CBS Television Studios, Inc. (2021) 68 Cal.App.5th 199, 208-209.)
Ratification is not an element of a claim; it is a choice to adopt
someone’s act as one’s own. Evidence of the ratification may
come in many forms, for example where an employer fails to
terminate, investigate, or respond to charges that an employee
has committed an intentional tort. (C.R. v. Tenet Healthcare
Corp., supra, 169 Cal.App.4th at pp. 1110-1111.)
B. The Claims in the First Cause of Action
In its initial briefing, the Archdiocese argued only that the
entire cause of action arose from protected speech. Bonni
instructs that we should focus not on the essence or gravamen of
the cause of action, but on each of the multiple claims within that
cause of action. (Bonni, supra, 11 Cal.5th at p. 1011.) This does
not alter the Archdiocese’s argument; it continues to take the
position that “the alleged basis for [the Archdiocese’s] liability is
the litigation activity that ratified the abuse.” This position
encompasses two arguments: first, that it is the ratification
activity itself that is the focus of an anti-SLAPP motion; and,
second, that the acts of ratification alleged by plaintiffs are
defendants’ litigation activity. Regardless of the validity of the
first; the second is contrary to the actual allegations of the
complaint.
25
Assuming without deciding that litigation activity allegedly
evidencing ratification is a legitimate target of an anti-SLAPP
motion, it was not properly targeted in this case. As Bonni
explained, there is a difference between allegations that supply
the elements of a claim and allegations of incidental background.
(Bonni, supra, 11 Cal.5th at p. 1012.) “Allegations of protected
activity that merely provide context, without supporting a claim
for recovery, cannot be stricken under the anti-SLAPP statute.”
(Baral, supra, 1 Cal.5th at p. 394; Pech v. Doniger, supra,
75 Cal.App.5th at p. 459.)
The Archdiocese characterizes the first cause of action as
based entirely on its litigation activity in the Roe litigation and
the criminal investigation. This characterization of the
complaint is not what the document actually says. Instead, the
only allegations of ratification are based on unprotected conduct.
We conclude that the allegations that might be considered
protected activity are merely incidental.
We return to the allegations of the operative first amended
complaint. The “Background Facts” section alleges the history of
Father Cunningham’s alleged sexual abuse of plaintiffs and any
number of facts, which, if true, would have put the Archdiocese
on notice that Father Cunningham may have been, or actually
was, molesting young boys at his assignments. Specifically, from
the time he was first ordained, and until he took a leave of
absence after having been caught with a minor in a hotel room,
Father Cunningham openly violated the written policies for
prevention of child molestation by priests. This was known to
other parish employees, and, in some cases, reported up the chain
of command. As alleged, complaints went missing and were not
investigated. Witnesses with information were never questioned.
Time and time again, nothing was done to restrict or supervise
26
Father Cunningham’s access to young boys. Instead, he was
moved to different parishes and, ultimately, promoted to the
position of priest at his own parish.
The “Child Sexual Abuse” cause of action incorporates the
above by reference, then alleges, “Defendants are vicariously
liable for the child sexual abuse committed upon Plaintiffs by
Father Christopher Cunningham: 1) The Defendants authorized
the wrongful conduct; 2) The Defendants ratified the wrongful
conduct.” Paragraph 108 follows, alleging, “For the reasons set
forth in the incorporated paragraphs of this Complaint, the
sexual abuse of Plaintiffs by Father Christopher Cunningham
arose from, was incidental to Father Christopher Cunningham’s
employment with Defendants, and each of these Defendants
ratified or approved of Father Christopher Cunningham’s sexual
abuse of minors, including Plaintiffs. Plaintiffs allege on
information and belief that Defendants ratified and/or approved
of the sexual misconduct by failing to adequately investigate,
discharge, discipline or supervise Father Christopher
Cunningham or other priests known by Defendants to have
sexually abused children, or to have been accused of sexually
abusing children. Defendants and each of them ratified Father
Christopher Cunningham’s abuse by concealing evidence of
sexual abuse of other children by Father Christopher
Cunningham and other priests from Plaintiffs, Plaintiffs’ parents,
other families with children, law enforcement, and personnel of
Defendants who could have been in a position to prevent the
abuse of Plaintiffs and others if they had known of complaints of
Father Christopher Cunningham’s sexual abuse of children, and
prior complaints of other priests of sexual abuse of children.” We
observe that none of these allegations of ratification or approval
27
involves the Archdiocese’s conduct in the Roe litigation or the
criminal investigation.13
Similarly, paragraph 111 includes allegations of vicarious
liability: “Defendants have routinely over the years failed to
discipline, investigate or terminate known child molesting
priests. Instead, Defendants condoned the conduct of priests
molesting children by protecting offending clerics from public
scorn and civil authorities, often transferring them from town to
town, county to county, state to state, and country to country, all
to allow child molesting priests to escape prosecution and protect
their reputations, as well as the reputation of the Defendants.
By doing so, Defendants have systematically encouraged and
condoned this conduct by more priests, including Father
Christopher Cunningham.” We observe again that these specific
allegations of “condon[ing]” abusive conduct by transferring
priests to enable them to protect their reputations likewise make
no mention of the Roe litigation or the Archdiocese’s involvement
in the criminal investigation of Father Cunningham.
To be sure, the complaint then alleges a number of
paragraphs (112-115) that discuss the Archdiocese’s continued
financial support of Father Cunningham, and its defense of him
in the Roe litigation and criminal investigation despite its
knowledge of increasing numbers of victims making allegations of
13 The allegation that the Archdioceses concealed evidence
from “law enforcement,” among others, cannot be interpreted as a
reference to the criminal investigation. In context, the allegation
refers to concealing evidence from individuals or entities who
could have prevented the sexual abuse of plaintiffs and others.
The criminal investigation of Father Cunningham did not
commence until 2017, more than a decade after Father
Cunningham took a leave of absence from the priesthood.
28
abuse against Father Cunningham. Viewed as part of the full
waterfront of the complaint’s factual allegations that we have
already described, these three paragraphs are a relatively small
jetty. Even more significantly, none of these paragraphs allege
that, by its support of Father Cunningham in the Roe litigation
and criminal investigation, the Archdiocese ratified Father
Cunningham’s sexual abuse of plaintiffs. Unlike the specific
paragraphs which allege “ratification,” “approval,” or even
“condon[ing]” the sexual abuse by the Archdiocese’s failure to
investigate and supervise Father Cunningham, and instead
transferring him to different locations, the allegations of the
Archdiocese’s litigation conduct set forth the facts, with no
allegation that these facts establish vicarious liability.
For the purposes of the present appeal, we take the
amended complaint at its word. The claim for ratification is
based on the allegations actually identified as ratifying. The
allegations of litigation conduct are simply incidental allegations
that provide context, and are not the basis for any claim of
ratification.
The Archdiocese, both in its anti-SLAPP motion before the
trial court, and in its briefing on appeal, goes to great lengths to
overlook the actual allegations of ratification, namely the acts of
failing to investigate and supervise (and, instead, transferring to
different parishes) of paragraphs 108 and 111, and instead
argues that the entirety of the ratification allegations are found
in the litigation conduct of paragraphs 112-115, despite the
absence of ratification, approval, or similar terms in those
paragraphs.14 In the course of doing so, the Archdiocese
14 In its supplemental brief on remand, the Archdiocese
argues, in a footnote: “Plaintiffs never identify any other act by
29
mischaracterizes the complaint, cherry-picking allegations of
litigation conduct, and, without support, suggesting that they are
the only allegations incorporated by reference into the sexual
abuse cause of action.15 As we have discussed, not only do these
allegations not comprise the entirety of the allegations of
ratification, they are, in fact, incidental to the actual allegations
of ratification.16
Appellant [beyond the litigation activity] that is the basis for
relief. They merely make a passing reference that ‘it is the
alleged act of Defendants in authorizing and condoning Father
Cunningham’s sexual abuse of Plaintiffs that the claim is
predicated.’ Authorizing and condoning are not acts but
immaterial conclusions about motives and intent. [Citations.]”
“Authorizing” is not a mere conclusion about intent, but a theory
of liability. A principal may be liable for the conduct of its agent,
even if that conduct is criminal, in one of three ways: (1) if the
principal directly authorized it; (2) if the agent committed the
tort in the scope of employment and in performing services on
behalf of the principal; or (3) if the principal ratifies the conduct
after the fact. (Doe v. Roman Catholic Archbishop of Los Angeles
(2016) 247 Cal.App.4th 953, 969.)
15 Specifically, the Archdiocese suggests that the cause of
action is based on paragraphs 112-115 “and in the repeated and
incorporated allegations [Paragraph 108] from Paragraphs 9-11,
61-64, 66-67.” Paragraphs 9-11, 61-64 and 66-67 are, in fact,
earlier allegations of the same litigation conduct. But there is
nothing in the complaint which incorporates only those nine
paragraphs by reference – either into the sexual abuse cause of
action or the specific allegations of ratification. Plaintiffs
incorporated the entirety of their previous allegations (105
paragraphs) by reference.
30
3. Second Cause of Action - Negligence
We next turn to plaintiffs’ negligence cause of action. The
complaint alleged that a number of the plaintiffs had been
students at parish schools. We start with some basic rules about
the legal duty owed to school children.17
16 The Archdiocese never argued that there were multiple
claims for ratification, some based on protected litigation conduct
and some not, and directed its anti-SLAPP motion only to those
claims based on litigation conduct. By putting all of its anti-
SLAPP eggs in the litigation conduct basket, it failed to meet its
burden as movant on this theory. “If a cause of action contains
multiple claims and a moving party fails to identify how the
speech or conduct underlying some of those claims is protected
activity, it will not carry its first-step burden as to those claims.
[Citation.] The nonmovant is not faced with the burden of having
to make the moving party’s case for it.” (Bonni, supra, 11 Cal.5th
at p. 1011.) Here, the Archdiocese’s notice of motion itemized a
number of paragraphs to be stricken, but the vast bulk of those
paragraphs were not addressed in its points and authorities at
all. While the Archdiocese did argue that the litigation conduct
of paragraphs 112-115 was litigation activity, it failed to
specifically move to strike only those paragraphs, because it
argued the entirety of the cause of action arose from them.
17 In its supplemental brief on remand, the Archdiocese states
that only one plaintiff, Doe 5, “claims abuse at a school.” The
characterization of the complaint is incorrect. For example,
plaintiffs alleged that Father Cunningham “continued engaging
in his sexualized conduct with [Doe 1] on the school and parish
grounds.” In any event, the Archdiocese fails to explain, with
argument and citation to authority, the relevance for this appeal
of the actual site of the alleged molestation.
31
“Ample case authority establishes that school personnel
owe students under their supervision a protective duty of
ordinary care, for breach of which the school district may be held
vicariously liable. [Citations.]” (C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 865.) Because of the
special relationship a school district and its employees have with
the students, the duty of care owed by school personnel includes
“the duty to use reasonable measures to protect students from
foreseeable injury at the hands of third parties acting negligently
or intentionally.” (Id. at pp. 869-870.) A “school district is liable
‘for the negligence of supervisory or administrative personnel
who knew, or should have known’ of the foreseeable risk to
students of sexual abuse by an employee and nevertheless hired,
retained, and/or inadequately supervised that employee.
[Citation.]” (D.Z. v. Los Angeles Unified School Dist. (2019)
35 Cal.App.5th 210, 223.)
This same special relationship exists between an
archdiocese and its catechism students, and gives rise to the
same duties. (Doe v. Roman Catholic Archbishop of Los Angeles
(2021) 70 Cal.App.5th 657, 671-673.) An archdiocese has a duty
to take reasonable measures to protect its students from injuries
at the hands of others while they attend catechism classes. 18 (Id.
at p. 673.)
We consider the individual allegations of the negligence
cause of action to which the Archdiocese directed its anti-SLAPP
motion.
18 The Doe court also held that the fact that the alleged
assaults did not occur at the parish school did not undermine the
existence of a special relationship, when the alleged assaults
occurred on church property while the plaintiff was in the care
and custody of the parish. (Doe, supra, 70 Cal.App.5th at p. 673.)
32
A. The Archdiocese Mischaracterizes the Complaint
Much like its attack on the first cause of action, the
Archdiocese’s strategy against the negligence cause of action was
to construe it narrowly so as to limit its reach only to acts the
Archdiocese claimed constituted protected speech. We reject the
attempt.
Prior to the complaint’s section on “Background Facts,”
plaintiffs alleged, by way of introduction, that in 2018, the
Archdiocese publicly apologized for child sexual abuse suffered at
the hands of priests, and represented that the Church needed to
be transparent about the perpetrators and vigilant in its
investigations of allegations of misconduct. The complaint goes
on to suggest, however, that this public statement of concern was
“very different from the way” the Archdiocese was actually
treating victims of abuse. Similarly, plaintiffs allege that the
public statement of vigilant investigations was contradicted by
the Archdiocese’s actual practice of hiding evidence and denying
abuse.
Focusing on this introductory language, the Archdiocese
takes the position that the negligence cause of action “attempts to
craft a negligence claim out of an alleged conflict between the
Archdiocese’s positive public statements about its response to
accusations of abuse and alleged failures: to inform parish
communities and public authorities that Cunningham ‘may have
been’ abusing minors, to publish Priests’ policies to non-Priests
and to inform staff about mandated reporters’ duties.” By linking
selected allegations of the negligence cause of action to the
“positive public statements,” the Archdiocese argues that the
cause of action for negligence arises from its protected conduct in
furtherance of speech.
33
We do not accept this selective reading of the first amended
complaint. The negligence cause of action alleges, in successive
paragraphs: (1) defendants had a duty to protect plaintiffs;
(2) Father Cunningham was able to molest plaintiffs due to the
access and authority he had as a priest; and (3) the Archdiocese
knew or should have known of Father Cunningham’s “dangerous
and exploitive propensities and/or that Father Christopher
Cunningham was an unfit agent.” This is then followed by
paragraph 120, which alleges, “Defendants breached their duty of
care to the minor Plaintiffs by allowing Father Christopher
Cunningham to come into contact with the minor Plaintiffs
without supervision; by failing to adequately supervise, or
negligently retaining Father Christopher Cunningham who they
permitted and enabled to have access to Plaintiff[s]; by failing to
investigate or otherwise confirm or deny such facts about Father
Christopher Cunningham; by failing to tell or concealing from
Plaintiffs, Plaintiffs’ parents, guardians, or law enforcement
officials that Father Christopher Cunningham was or may have
been sexually abusing minors; and/or by holding out Father
Christopher Cunningham to the Plaintiffs and their parents or
guardians as being in good standing and trustworthy. As a
Priest, Father Christopher Cunningham was expected to minister
to parish families. Defendants acknowledged and expect that
parish priests should visit parishioners’ homes as part of their
duties as priests. Father Christopher Cunningham visited family
homes like Plaintiffs’ as part of his expected functions.
Defendants cloaked within the facade of normalcy Defendants’
and/or Father Christopher Cunningham’s contact and/or actions
with the Plaintiffs and/or with other minors who were victims of
Father Christopher Cunningham, and/or disguised the nature of
the sexual abuse and contact.”
34
The Archdiocese disposes of this paragraph by saying it
“has a series of conclusory allegations strung together with an
ineffable ‘and/or.’ That Paragraph is immaterial and cannot
change the allegation that the activity giving rise to the claim for
relief is protected ‘failure to inform.’ ”
Even if those allegations were conclusory standing alone (a
point we do not decide), they are reinforced by the specific
allegations of fact in the preceding pages of the complaint. The
numerous allegations of nonspeech-related negligent conduct –
failure to supervise, negligent retention, failure to investigate –
which form the bulk of this cause of action cannot be brushed
aside because the Archdiocese would rather categorize this cause
of action as “failure to inform.”
The Archdiocese argues: “The only activity alleged here as
the basis for the negligent supervision theory is that Defendants
‘publicly purported’ to implement a policy of informing ‘parish
communities’ about accusations of abuse by a Priest but ‘never
informed’ parish communities that Cunningham had been
accused and failed to tell or concealed from ‘Plaintiffs, Plaintiffs’
parents, guardians, or law enforcement’ that Cunningham ‘was
or may have been’ abusing minors and/or holding out
Cunningham as being in good standing and trustworthy.
[Citations.] Everything else in Paragraph 120 is immaterial.”
As with the first cause of action for the ratification of
sexual abuse, the Archdiocese’s characterization of the negligence
cause of action attempts to read out of the complaint the
allegations that are actually at its center. The “failure to
supervise” allegation is not limited to failure to inform; as we
shall discuss, it is questionable whether plaintiffs pursue a claim
for failure to inform at all. But, even if failure to inform is
pleaded as a theory of liability, the overall cause of action alleged
35
refers much more broadly to the Archdiocese’s failure to
supervise its employee who was molesting children. Plaintiffs
specifically alleged that: (1) Father Gleason expressed concern
that Father Cunningham was bringing boys into the rectory and
warned Doe 3 “not to trust” Father Cunningham; (2) Father
Miskella evaluated Father Cunningham as too immature to be a
pastor and confidentially informed the Vicar for Clergy that he
should speak with Father Gleason about Father Cunningham;
but (3) the Vicar for Clergy did not do so; and (4) these and other
red flags were ignored and Father Cunningham was moved from
parish to parish, where he was free to continue molesting
children unsupervised. The Archdiocese ignores these allegations
in its effort to squeeze plaintiffs’ negligence cause of action into
something fitting its preferred contention regarding protected
speech. “We need not, however, wear the blinders that
appellants have fashioned for us.” (Jespersen v. Zubiate-
Beauchamp (2003) 114 Cal.App.4th 624, 630 (Jespersen).)
B. The Bonni Analysis
Even though we conclude there is much more to the
negligence cause of action than a “failure to inform,” Bonni
instructs that we must consider whether the Archdiocese has
demonstrated that any of the individual negligence claims arise
from protected speech.19
19 We disagree with the Archdiocese’s suggestion that we find
protected activity in the complaint’s introductory allegations that
in 2018, the Archdiocese publicly apologized for child sexual
abuse suffered at the hands of priests, and represented that the
Church needed to be transparent about the perpetrators and
vigilant in its investigations of allegations of misconduct. As
Bonni explained, there is a difference between allegations that
36
In its briefing on the anti-SLAPP motion, the Archdiocese –
whose interest is to characterize the negligence cause of action as
including as many speech-related claims as possible – identified
four negligence claims it asserts were based on protected speech:
(1) failure to inform parish communities about allegations of
abuse against Father Cunningham and instead holding him out
as trustworthy; (2) failure to communicate the Archdiocese’s
policy for the prevention of molestation to nonpriest staff and
members of the community; (3) failure to educate, train and warn
plaintiffs about sexual abuse; and (4) failure to inform staff who
were mandated reporters about their duties as mandated
reporters under the law. The Archdiocese’s assertion of anti-
SLAPP-protected activity is doubly flawed.
i. The Anti-SLAPP Statute’s Definition of
Protected Activity Does Not Encompass the
Right Not to Speak Claimed by the Archdiocese
Here
The four purported negligence claims identified by the
Archdiocese have one key factor in common: they are all based
on a decision not to speak, not speech itself. The Archdiocese
supply the elements of a claim and allegations of incidental
background. (Bonni, supra, 11 Cal.5th at p. 1012.) “Allegations
of protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the
anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at p. 394.)
Plaintiffs seek no relief for the 2018 statements of the
Archdiocese; these allegations are simply context for the later
allegations of abuse, and therefore need not be stricken. (Bonni,
at p. 1017 [allegations raised only as “window dressing” need not
be stricken].)
37
argues, correctly, that the constitutional right to free speech has
been held to encompass a right not to speak. (See, e.g., West
Virginia State Board of Education v. Barnette (1943) 319 U.S.
624; Beeman v. Anthem Prescription Management, LLC (2013)
58 Cal.4th 329, 342 [the California Constitution’s “ ‘right to
freedom of speech, like the First Amendment’s is implicated in
speaking itself. Because speech results from what a speaker
chooses to say and what he chooses not to say, the right in
question comprises both a right to speak freely and also a right to
refrain from doing so at all, and is therefore put at risk both by
prohibiting a speaker from saying what he otherwise would say
and also by compelling him to say what he otherwise would not
say’ ”].) The right claimed by the Archdiocese in this case—a
claimed right not to warn about known or suspected sexual abuse
of minors (and to reveal and promote the policies in place to
prevent it) is not akin to the right claimed in Barnette. This is
important, for as we now explain, not every decision to refrain
from speaking falls within the anti-SLAPP statute’s definition of
protected activity.
The anti-SLAPP law protects only speech and conduct that
falls within one of four categories enumerated in Code of Civil
Procedure section 425.16, subdivision (e): “(1) any written or oral
statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law, (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official
proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in
connection with an issue of public interest, or (4) any other
conduct in furtherance of the exercise of the constitutional right
38
of petition or the constitutional right of free speech in connection
with a public issue or issue of public interest.”
A failure to speak cannot fall in any of the first three
categories, which protect only “statement[s] or writing[s],” and
not the failure to make them. If a failure to speak is protected at
all, it must fall within the fourth category, as “other conduct in
furtherance of the exercise of the constitutional right of petition
or the constitutional right of free speech in connection with a
public issue or issue of public interest.” Indeed, as there is no
suggestion the failures to speak here related to the Archdiocese’s
right of petition, the issue is further narrowed. Specifically, does
plaintiffs’ complaint allege failures to speak which constitute
“conduct in furtherance of the exercise . . . of the constitutional
right of free speech in connection with a public issue or issue of
public interest”?20
We conclude the failure to speak alleged as a basis for
liability here is not conduct in furtherance of the right of free
speech. (Digerati Holdings, LLC v. Young Money Entertainment,
LLC (2011) 194 Cal.App.4th 873, 885-886 [failure to appear for
interviews for a documentary film is not in furtherance of the
right of speech]; Jespersen, supra, 114 Cal.App.4th at pp. 631-632
[attorneys who were sued for malpractice, not for “any act in
20 We assume without deciding that the Archdiocese could
establish the “issue of public interest” element. (See Terry v.
Davis Community Church (2005) 131 Cal.App.4th 1534, 1547
[statements accusing church youth group leaders of an
inappropriate relationship with a minor were communications
that involved issues of public interest, specifically, “the societal
interest in protecting a substantial number of children from
predators . . . .”].)
39
furtherance of anyone’s right of petition or free speech, but [their]
negligent failure to do so on behalf of their clients” could not
establish they were sued for protected speech]; see also Ojjeh v.
Brown (2019) 43 Cal.App.5th 1027, 1040-1041 [distinguishing
Digerati in a case where there was not a complete failure to
perform; partial acts done in support of an incomplete film can be
said to have furthered the exercise of free speech rights].)21
The Archdiocese points to no allegations in the complaint of
affirmative misrepresentations or concealment and no claims of
partial speech.22 They have therefore failed to identify a claim
based on protected speech.
21 Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118,
124 is not to the contrary. There, the court held that
“[m]isrepesentation or failure to disclose can be protected
petitioning activity for purposes of [Code of Civil Procedure]
section 425.16.” (Ibid.) In that case, the plaintiff alleged both an
affirmative communication directing that a key document be
hidden from him during a previous litigation and the defendants’
subsequent silence with respect to the hidden document. (Id. at
p. 123.) Thus, the court had before it both an affirmative
misrepresentation and a failure to disclose, and was not required
to analyze whether the latter alone was protected speech. To
that end, the court distinguished Jespersen, in which the
attorneys were sued for the negligent failure to act, stating, “This
differs from the allegations of [defendant’s] affirmative
nondisclosure and concealment . . . .” (Suarez. at p. 125.) To the
extent that Suarez stands for the proposition that the anti-
SLAPP statute always applies to the failure to speak, we
respectfully disagree.
22 Although the Archdiocese relies heavily on its
characterization of the negligence claims as being based on a
failure to speak, it also notes that, in places, the plaintiffs alleged
40
ii. Allegations of Failure to Speak Are, in Any
Event, Incidental to the Failure to Supervise in
the Complaint as Alleged
In their supplemental briefing on remand, the plaintiffs
argue that “an allegation regarding a failure to inform is not itself
the basis for relief under the negligence claims alleged. Instead,
it provides context to and evidence of the ultimate breach—the
failure to prevent the underl[y]ing sexual assault.” Plaintiffs
argue that they are not seeking damages for any failure to speak
standing alone, but for the sexual abuse that speaking might
have prevented. As they explain, “the basis for Plaintiffs’
negligence claim is not the failure to inform, but instead the
failure to supervise its agent and its failure to protect Plaintiffs
from foreseeable sexual abuse.”
Given the allegations of plaintiffs’ complaint, it is difficult
to conceive of their allegations of “failure to warn” as supporting
the Archdiocese “concealed” information about Father
Cunningham and held him out as trustworthy. Paragraph 120 of
the operative complaint does include both of these allegations.
However, both are alleged in the alternative. That is, plaintiffs
allege the Archdiocese breached is duty of care “by failing to tell
or concealing” that Father Cunningham may have been abusing
minors “and/or by holding out” Father Cunningham as being
trustworthy. These allegations do not refer to any specific
allegations of affirmative representations elsewhere in the
complaint. That is, plaintiffs do not allege the Archdiocese made
any actual statements to them regarding Father Cunningham
being trustworthy. Viewed in context, we conclude these few
allegations – pleaded in the alternative – of affirmative
misconduct are, in fact, incidental allegations that can be
disregarded for the purposes of anti-SLAPP. (Baral, supra,
1 Cal.5th at p. 394.)
41
a claim for relief independent of the claim based on negligent
failure to supervise. In a case with similar allegations, the court
explained, “On the negligent supervision and failure to warn
claims, [plaintiff] will be required to show [the religious
organization] knew or should have known of [the alleged
abuser’s] alleged misconduct and did not act in a reasonable
manner when it allegedly recommended him to serve as
[plaintiff’s] Bible instructor. [Citations.] For each claim,
[plaintiff] will also be required to prove the alleged sexual abuse
occurred, causation, and compensatory damages. [Citation.]”
(Lopez v. Watchtower Bible & Tract Society of New York, Inc.
(2016) 246 Cal.App.4th 566, 591.) In other words, in the present
setting, there is no claim for failure to warn independent of the
failure to supervise.
This is not a case where there are alternative theories of
liability supported by a failure to, for example, repair property or
warn of its unsafe condition. (See, e.g., CACI No. 1003 [failure to
repair or warn of unsafe condition of property].) Plaintiffs do not
posit a situation in which the Archdiocese could escape liability
for failing to supervise a priest who was serially molesting minors
by the simple expedient of warning them about him. 23 The
allegations of failure to warn are only additional allegations of
irresponsible conduct on the part of the Archdiocese, incidental to
the claim of failure to supervise, and not subject to attack by an
anti-SLAPP motion. (Baral, supra, 1 Cal.5th at p. 394.)
23 In fact, plaintiffs allege that Father Gleason warned Doe 3
not to trust Father Cunningham, but this did not protect Doe 3
from Father Cunningham’s abuse.
42
4. The Ruling on the Demurrer Is Not Before Us
The Archdiocese argues that the trial court’s ruling
sustaining its demurrer with leave to amend is binding on our
anti-SLAPP motion analysis. Specifically, the Archdiocese
suggests that the order was appealable and the plaintiffs’ failure
to cross-appeal the order renders it res judicata on the issue of
whether their complaint stated a claim and the likelihood that
plaintiffs will prevail on the merits under the second prong of the
anti-SLAPP statute. We disagree.
An order sustaining a demurrer with leave to amend is not
a final judgment and is not otherwise itemized among appealable
orders. (Code Civ. Proc., § 904.1.) The Archdiocese’s argument is
based on section 906, which provides, in pertinent part, “Upon an
appeal pursuant to Section 904.1 or 904.2, the reviewing court
may review the verdict or decision and any intermediate ruling,
proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from or which
substantially affects the rights of a party . . . .”
The Archdiocese argues that Code of Civil Procedure
section 906 renders the demurrer ruling not merely reviewable,
but appealable under Fontani v. Wells Fargo Investments, LLC
(2005) 129 Cal.App.4th 719 (Fontani), disapproved on other
grounds by Kibler v. Northern Inyo County Local Hospital Dist.
(2006) 39 Cal.4th 192, 203, footnote 5. Plaintiffs’ failure to
appeal the adverse ruling on demurrer, the argument continues,
means that plaintiffs are stuck with an adverse ruling on the
validity of their complaint.
In Fontani, the trial court denied an anti-SLAPP motion
and overruled the bulk of a demurrer. The defendant appealed
and the Court of Appeal reversed the denial of the anti-SLAPP
motion. The defendant asked that the appellate court also
43
address the order overruling part of its demurrer under Code of
Civil Procedure section 906. The court declined on the basis that
the demurrer ruling did not substantially affect the defendant’s
rights. (Fontani, supra, 129 Cal.App.4th at p. 736.) In the course
of its discussion, however, the court stated, “Section 906 does
allow for an appeal from an interlocutory order that involves the
merits of, or necessarily affects, an anti-SLAPP order from which
an appeal is taken. In other words, where the propriety of an
otherwise nonappealable order affects the validity of an anti-
SLAPP order, an appeal will lie from the otherwise
nonappealable order. (See City of Oakland v. Darbee (1951)
102 Cal.App.2d 493, 504 [227 P.2d 909] [otherwise nonappealable
order for separation reviewable on proper appeal from order for
transfer because validity of order for transfer depended on
validity of order for separation].)” (Ibid.) The dicta on which the
Archdiocese relies is not, in our view, an accurate statement of
the law. The statute provides that, on appeal of an otherwise
appealable order or judgment, the court may review any
intermediate ruling which necessarily affects the order appealed
from. It does not render an otherwise nonappealable
intermediate ruling appealable, and we disagree with any
language in Fontani which suggests otherwise.24
24 The only case that Fontani cites in the passage quoted in
the text, Oakland, supra, 102 Cal.App.2d 493, supports our
conclusion. There, the plaintiff had brought an eminent domain
action against a number of defendants or groups of defendants,
each of whom owned a different parcel of property the city sought
to condemn. One set of defendants successfully moved to
separate the proceeding against them and transfer it to the
county in which they resided. The plaintiff appealed the
appealable transfer order; but the separation order was not
44
Even under the reviewable rule, the demurrer ruling in our
case is not reviewable. A second case cited by the Archdiocese,
Maranatha Corrections, LLC v. Department of Corrections and
Rehabilitation (2008) 158 Cal.App.4th 1075, 1084, illustrates
why.
Unlike the present appeal, the order sustaining the
demurrer in Maranatha Corrections preceded the order on the
anti-SLAPP motion, so at least as a theoretical matter, the
demurrer could have affected the subsequent anti-SLAPP ruling.
Here, the ruling on the demurrer did not affect, and could not
have affected, the order denying the anti-SLAPP motion: The
order on the demurrer came after the court had already denied
the anti-SLAPP motion.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. The
Archdiocese shall pay plaintiffs’ costs on appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J. KIM, J.
appealable. The Court of Appeal concluded that the separation
order could nonetheless be reviewed on appeal from the transfer
order, as an intermediate ruling which necessarily affected the
transfer order. (Oakland, at pp. 504-505.) The issue was one of
reviewability, not ab initio appealability. The holding in
Oakland does not suggest that plaintiffs here could have
appealed the demurrer ruling or that the failure to do so had
some binding effect on the anti-SLAPP motion.
45
Filed 6/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CHARLES RATCLIFF, JR., et al. B302558
Plaintiffs and Respondents, (Los Angeles County Super. Ct.
No. 19STCV20138)
v.
ORDER MODIFYING
THE ROMAN CATHOLIC OPINION AND CERTIFYING
ARCHBISHOP OF LOS OPINION FOR
ANGELES et al., PUBLICATION
[There is no change in judgment]
Defendants and Appellants.
THE COURT:
The opinion in the above-entitled matter filed on May 19,
2022, was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
It is further ordered, the opinion shall be modified as
follows:
- On page 2, in the introductory paragraph, on line 6,
replace the two words “and related” with “among other”; as
modified, the sentence ends, “ . . . among other acts and
omissions.”
- On page 3, delete the first sentence of the first full
paragraph, and replace it with “At the time the trial court denied
the anti-SLAPP motion, the court also sustained with leave to
amend defendants’ demurrer, on the grounds of lack of
specificity.”
- On page 4, in subheading A., delete the words “Allegations
Concerning,” and capitalize the “t” in “the”; as modified, the
subheading begins, “The Archdiocese’s Preexisting . . .”
- On page 9, in the first paragraph under subheading E., at
the end of the fourth line, replace “of” with “for”; as modified, the
phrase reads, “. . . policies and prohibitions for the prevention . . .”
- On page 16, in the final paragraph, in the sixth line,
replace “Those allegations were:” with “As identified by the
Archdiocese, those allegations were:”
- On page 17, add the following sentences to the end of
footnote 7: “In Baral, the Supreme Court indicated that it
sometimes used ‘cause of action’ to refer to a count as pleaded,
while the proper subject of an anti-SLAPP motion is a ‘claim.’
(Baral, supra, 1 Cal.5th at p. 382.) We follow that convention.”
- On page 18, in the first paragraph under subheading C.,
replace the first sentence with, “Plaintiffs’ opposition to the
motion argued that the speech and petitioning conduct identified
in the Archdiocese’s motion was merely supporting evidence of
the Archdiocese’s vicarious liability, and did not constitute the
tortious acts on which the complaint was based.”
- On page 21, in footnote 10, replace the final sentence of
the footnote with, “The ruling on the demurrer is not before us on
appeal, and, as we explain in Part 4 of our discussion, we express
no opinion on it.”
- On page 24, delete footnote 12, and renumber remaining
footnotes.
2
- On page 25, in the paragraph under subheading B., four
lines down; replace “each of the multiple claims” with “the
individual claims presented”; as modified, the clause reads, “but
on the individual claims presented within that cause of action.”
- On page 26, in the second full paragraph, delete the last
two sentences and replace them with, “Rather, a careful reading
of the complaint reveals its allegations of ratification are based
on unprotected conduct and any references to activity that might
be considered protected under the anti-SLAPP statute are merely
incidental, not a claim for recovery.”
- On page 29, in the carryover paragraph, in the third line,
delete “relatively”; as modified, the sentence ends, “. . . these
three paragraphs are a small jetty.”
- On page 38, in the carryover paragraph, beginning five
lines from the bottom of the paragraph, replace the parenthetical
clause with, “(and to refrain from revealing and promoting the
policies in place to prevent it)”.
- On page 41, in renumbered footnote 21 (carried over from
page 40), five lines from the top, replace “is” with “its”; as
modified, the sentence begins, “That is, plaintiffs allege the
Archdiocese breached its duty of care . . .”
- On page 42, in the final paragraph, five lines from the
bottom, replace “them” with “the minors”; as modified, the
sentence ends, “. . . by the simple expedient of warning the
minors about him.”
There is no change in the judgment.
____________________________________________________________
RUBIN, P. J. BAKER, J. KIM, J.
3