Metropolitan News-Enterprise


Thursday, June 22, 2006


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S.C. to Decide Whether City Liable for Alleged Sex Abuse by Official

Justices Also Grant Review in Dispute Over Sierra Club Election Procedures




The California Supreme Court yesterday agreed to decide whether the City of Los Angeles and/or the Boy Scouts of America may be held liable to a pair of former Explorer scouts who claim they were abused by an officer who later became a top LAPD official.

The justices, at their weekly conference in San Francisco, unanimously granted review in Doe v. City of Los Angeles, B178689. The Court of Appeal for this district, Div. Four, ruled Feb. 24 that the plaintiffs, identified only as John Doe and John Doe 2, cannot show that the city or the BSA knew, or had reason to know, of any unlawful sexual conduct by David J. Kalish and that their claims against those defendants were barred by the statute of limitations.

Justice Daniel Curry, who has since retired, wrote the opinion.

Deputy Chief

The plaintiffs are among six men who claimed to have been molested by Kalish in the 1970s when he was an Explorer troop supervisor. He later rose through the ranks to become an LAPD deputy chief before a five-month criminal investigation into the molestation allegations ended his career.

He was not charged—prosecutors cited a U.S. Supreme Court ruling that a statute extending the limitations period for child molestation cases could not be applied to cases in which the original limitations period had expired—but was relieved of his duties and retired in 2003.

In dismissing the suits, Los Angeles Superior Court Judge Robert L. Hess said neither the city nor the Boy Scouts could have predicted that Kalish might have sexually abused teenage boys. The plaintiff did not identify “any person whose knowledge could create liability on the part of either the city or the Boy Scouts, or what they knew and when,” Hess said.

Curry, writing for the Court of Appeal, agreed.

Suit Time-Barred

The justice explained that under Code of Civil Procedure Sec. 340.1, a plaintiff claiming to have been sexually abused as a minor generally may sue the molester’s employer or principal prior to the plaintiff’s 26th birthday. After that, claims are time-barred unless filed during a one-year revival period that expired at the end of 2003, as the suit against Kalish was.

An otherwise-barred suit against an employer or principal that was filed during the revival period, however, is timely only if the defendant “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 to prevent such misconduct from recurring.

The plaintiffs, Curry noted, had conceded that there was no evidence the Boy Scouts or the city had actual knowledge of any molestations by Kalish, so dismissal was required absent a sufficient showing of constructive knowledge.

No such showing was made, the justice said.

“[A]ppellants may not merely allege that respondents knew facts that raised a generalized prospect or possibility of sexual abuse by Kalish,” the jurist wrote. “Rather, appellants were obliged to allege in specific terms that respondents knew facts that—if acted upon in a reasonable manner—would have prompted them to investigate Kalish with a thoroughness likely to establish that he had engaged in unlawful sexual abuse.”

Claims Deficient

The justice noted that as to the Boy Scouts, the only allegations related to constructive knowledge were that the LAPD acted as the organization’s agent and that the BSA was thus chargeable with the same knowledge that the LAPD had. Assuming that to be true, however, the claims fail because the claims against the LAPD were deficient, Curry said.

The plaintiffs, Curry explained, merely alleged that the LAPD was aware that incidents of sexual abuse had occurred within its Explorer program, and that various officers, including possibly Kalish, were involved in non-sexual misconduct, including having program participants work on improvements to his home and providing beer to underage scouts.

“[T]hese facts reasonably support the conclusion that LAPD should have made a general inquiry into alcohol- and chore-related misconduct by LAPD officers within the programs, but not that LAPD should have launched an investigation focused on Kalish that would uncovered his sexual misconduct,” the jurist wrote.

In other conference action, the justices:

-Agreed to decide whether a group of Sierra Club members who are opposed to the conservation organization’s leadership and want a change in its policies may sue for alleged unfair treatment during the organization’s 2004 board election.

The First District Court of Appeal ruled in March that the bulk of a suit by a group calling itself Club Members for an Honest Election falls under the “public interest” exemption from the anti-SLAPP statute.

The dispute has its roots in efforts to change the leadership and focus of the club, whose 750,000 members and $95 million budget make it the largest environmental group in the country. Among other things, the dissidents want the group—which has never taken a position on the issue—support stricter immigration controls.

Supporters of the current leadership have accused the dissidents of promoting racism and claim to represent the views of the majority of members. They say the dissidents are seeking to take advantage of the fact that 90 percent or so of the members do not vote in the annual board elections.

The board consists of 15 members, five of whom are elected each year. The board elects the president, who is the only board member to draw a salary.

Board candidates are nominated by a committee appointed by the board, or by petition. Dissidents won one seat in the 2002 election and two in 2003.

Prior to the 2004 election, the board circulated to its chapters an article concerning what the author called the “narrow, personal, one issue agendas” that were being pursued by unnamed “people and parties” as a result of the low participation numbers in the club’s elections.

The board also voted to approve an “urgent election notice” informing members of “an unprecedented level of outside involvement” in the election and the fact that certain outside groups “may be attempting to intervene” in the election.

Following the board meeting, the dissident group and one of the candidates nominated by petition filed suit in San Francisco Superior Court.

They claimed that the actions taken by the board, including allowing three “fake candidates” to circulate ballot statements in which they disclaimed any desire to be elected and asked members to vote for other candidates aligned with the incumbent leadership, violated fairness requirements in the California Corporations Code and the club by-laws.

The plaintiffs asked for a preliminary injunction barring the winners of the 2004 election—which resulted in a sharp increase in turnout and victory for candidates backed by the nominating committee—from taking office. They also sought to mandate changes in procedures for future elections.

San Francisco Superior Court Judge James Warren, who has since retired, held that to the extent the suit sought to correct allegedly unfair procedures, it was in the public interest and fell under Code of Civil Procedure Sec. 425.17(b)’s exception to the anti-SLAPP law and the Court of Appeal agreed.

The case is Club Members for an Honest Election v. Sierra Club, A110069.

-Denied review of a ruling by this district’s Court of Appeal that the Los Angeles County Civil Service Commission cannot hear a claim for back pay by a former Los Angeles County sheriff’s deputy who retired under threat of prosecution four years ago.

Jesse Zuniga was among several defendants indicted in connection with an alleged scam in which inmates and department employees supposedly conspired to use stolen credit cards to withdraw cash from automated teller machines. Zuniga agreed to retire from the Sheriff’s Department in exchange for dismissal of all charges, but then claimed a right to be paid for the 10 months that elapsed between his being relieved of duty and the date of his official retirement.

The Court of Appeal ruled that the Civil Service Commission had no jurisdiction in the matter because Zuniga was no longer a county employee.


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