Tuesday, November 9, 2004
Page 1
C.A. Allows Priest to Sue Over Claim of Financial Impropriety
By KENNETH OFGANG, Staff Writer/Appellate Courts
A San Pedro priest accused of having assisted an elderly parishioner so that he could “help himself” to her fortune may proceed with a suit against the person who allegedly made that comment to a local newspaper, the Court of Appeal for this district ruled yesterday.
Div. Seven concluded that Patrick J. Gallagher, pastor of Mary Star of the Sea parish, had established a probability of prevailing on his defamation suit against Ann Connell. The panel affirmed Los Angeles Superior Court Judge Judith Vander Lans’ denial of Connell’s anti-SLAPP motion.
In doing so, the panel acknowledged that some of the evidence Gallagher presented in opposition to the motion was inadmissible hearsay. But the trial judge was entitled to consider it because the defendant did not object, Justice Earl Johnson Jr. wrote for the court.
The dispute over Anna Petone’s million-dollar trust has been the subject of several articles in the Torrance-based Daily Breeze, detailing accusations that Gallagher had gained control over Petone’s affairs and that Petone was afraid of him and thought he was stealing.
Priest’s Defense
Critics of the priest sought to have a conservator appointed after Petone bequeathed the bulk of her estate to him and named him successor trustee. The newspaper articles quoted Gallagher as saying he was acting purely in Petone’s interests, that the nonagenarian was suffering from dementia, and that the only money he had taken from the trust was a reimbursement for expenses he had incurred on Petone’s behalf.
The Daily Breeze article on the first hearing on the conservatorship dispute quoted Connell, a neighbor of Petone who had once been the beneficiary of a $125,000 certificate of deposit but was removed in favor of Gallagher. “We thought he was there to help her, but he was there to help himself,” was the quote attributed to Connell by the newspaper.
Gallagher, who was eventually removed as trustee, sued Connell for defamation.
In moving to strike the complaint under the anti-SLAPP statute, Connell’s lawyers argued that Gallagher could not prevail on the merits because he could not show that she made the statement, that the statement was an assertion of fact rather than opinion, that the statement was false, or that it was malicious.
Gallagher responded with a copy of the article and a declaration detailing his efforts on behalf of Petone and his denials of wrongdoing in the handling of her affairs. The defense objected to the article as lacking authentication, but not as hearsay.
The trial judge found it reasonably probable that Gallagher would prevail and denied the motion.
On appeal, the defendant argued that the article was hearsay, and that the plaintiff had thus not shown by “admissible” evidence, as required by the statute, that he was likely to prevail.
Objections Waived
But Johnson, writing for the appellate panel, said the principle that evidentiary objections are waived if not made in a timely fashion in the trial court applies to anti-SLAPP motions.
“If Connell had objected to the newspaper article as hearsay when offered to prove she made the statement attributed to her, Gallagher would have had the opportunity to cure the defect in his evidence,” the justice explained, such as by obtaining a declaration from a reporter or another witness.
This type of curable defect, Johnson added, does not detract from the likelihood that the plaintiff will be able to prove at trial that Connell made the statement.
The justice went on to conclude that Gallagher presented sufficient evidence to show that the statement could be understood as defamatory and that it was false. He noted that the probate court approved Gallagher’s trust accounting for December 1997 through September 2001, granted reimbursement to the priest for his expenses incurred on behalf of Petone, and found, by clear and convincing evidence, that Petone was competent and represented by counsel at the relevant times and that Gallagher did not procure designation as beneficiary through fraud, menace, duress or undue influence.
Johnson also concluded that Gallagher was not a public figure and did not have to prove malice. While his 20-year tenure as the priest of a local parish had resulted in some newspaper coverage, the justice explained, that was not enough to make him a public figure.
“Clearly Gallagher is no Jerry Falwell, Jesse Jackson, or Louis Farrakhan...,” Johnson wrote, comparing the plaintiff to some of the most prominent American clergy members. “In 2002 there were approximately 30,000 diocesan priests such as Gallagher in the United States. Nothing in the record causes Gallagher to stand out from the other 29,999.”
Attorneys on appeal were Cruz Saavedra and Roger C. Glienke of Saavedra & Zufelt for the plaintiff and John A. Demarest of Hanger, Levine & Steinberg for the defendant.
The case is Gallagher v. Connell, B168077.
Copyright 2004, Metropolitan News Company