Wednesday, March 8, 2006
City Not Liable for Alleged Sex Abuse by Ex-LAPD Official—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
The City of Los Angeles and the Boy Scouts of America have no liability to a pair of men who claim they were sexually abused while teenagers participating in a police explorer program, the Court of Appeal for this district has ruled.
The men, 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 their claims against those defendants are thus barred by the statute of limitations, Justice Daniel Curry wrote for Div. Four.
His Feb. 24 opinion was certified yesterday for publication.
The men are among six 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 said the 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 barred prosecution—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.
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.
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.”
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.
The case is John Doe v. City of Los Angeles, B178689.
Copyright 2006, Metropolitan News Company