City Not Liable for Alleged Sex Abuse by Ex-LAPD Official

Friday, November 2, 2007

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City Not Liable for Alleged Sex Abuse by Ex-LAPD Official—S.C.

By KENNETH OFGANG, Staff Writer

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 state Supreme Court unanimously ruled yesterday.

The court, in an opinion by Justice Carlos Moreno, said that a statute extending the limitations period for suits against entities that may be responsible for child sexual abuse does not apply in the absence of actual or constructive knowledge of previous, similar conduct by the molester.

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 their claims against those defendants are thus barred by the statute of limitations, Moreno said.

Career Wrecked

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 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, 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 plaintiffs 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.

The Court of Appeal and the Supreme Court agreed.

Moreno explained that under Code of Civil Procedure Sec. 340.1, a plaintiff claiming to have been sexually abused as a minor generally may not sue the molester’s employer or principal on or after the plaintiff’s 26th birthday.

An otherwise-barred suit against an employer or principal, 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.

With respect to Kalish, Moreno noted, there was no allegation that the LAPD or the Boy Scouts had actual knowledge of any past sexual misconduct, so the plaintiffs had to prove that they had constructive knowledge, “or [were] otherwise on notice.”

Moreno said the Court of Appeal went too far in ruling that the plaintiffs had to plead specific facts that defendants knew and that should “have prompted them to investigate Kalish with a thoroughness likely to establish that he had engaged in unlawful sexual abuse.”

Nothing in the statute, Moreno wrote, requires a plaintiff “to plead evidentiary, as opposed to ultimate facts,” or prohibits the inclusion of allegations based on information and belief. But the Court of Appeal was correct in concluding that the allegations against the LAPD and the Boy Scouts, which Moreno described as “repetitive and rambling” did not meet the requirements of the statute.

Proof Required

The justice rejected, as contrary to a fair reading of the section, the contention that the plaintiffs were only required to show that at least one employee of each defendant knew of an incident of sexual misconduct by Kalish.

“Plaintiffs’ argument impliedly concedes what is plaint on the face of their complaints: that their complaints fail to allege that defendants had knowledge of Kalish’s past unlawful sexual conduct with minors, which is the prerequisite for imposing upon these defendants liability for his subsequent sexual abuse of plaintiffs,” the justice wrote. “That plaintiffs had knowledge or notice of misconduct by Kalish that created a risk of sexual exploitation is not enough under the express terms of the statute.”

The case was argued in the Supreme Court by Devin M. Storey and Irwin M. Zalkin, of the San Diego firm of Zalkin & Zimmer, for the plaintiffs; by Deputy City Attorney Amy Jo Field for the LAPD; and by Christina J. Imre of Sedgwick, Detert, Moran & Arnold for the Boy Scouts.

Amicus briefs in support of the Boy Scouts were filed by Cardinal Roger Mahony, archbishop of the Roman Catholic Archdiocese of Los Angeles, and by the California Catholic Conference.

The case is Doe v. City of Los Angeles, 07 S.O.S. 6461.