Metropolitan News-Enterprise


Monday, July 7, 2008


Page 1


C.A. Rejects Challenge to Sex Abuse Claims Revival Statute

But Justices Find Instructional Error, Reverse $3.5 Million Judgment Against Masonic Homes




A state law reviving some time-barred claims of child molestation is constitutional, this district’s Court of Appeal ruled Thursday, both on its face and as applied to a case in which the passage of time resulted in the deaths of several witnesses and the loss of documentary evidence.

Div. Two Thursday upheld the constitutionality of the 2002 amendment to Code of Civil Procedure Sec. 340.1. But the panel found that a Los Angeles Superior Court judge had misinstructed the jury on what it had to find in order to hold an employer liable for its employees’ conduct under the statute.

The court granted Masonic Homes of California, Inc. a new trial.

Covina Home

The defendant operated the Masonic Home for Children in Covina, a residence for orphans and children from broken families, in the 1960s and 1970s. In 2003, some 20 of the home’s former residents sued, claiming they were molested by employees while they lived there.

Sec. 340.1 provides that an action to recover damages for childhood sexual abuse must be brought no later than the plaintiff’s 26th birthday, or in some cases up to three years after the plaintiff learns of the relationship between the childhood abuse and psychological injury suffered as an adult.

Under the 2002 amendment, however, plaintiffs were allowed, during 2003 only, to sue without any time limitation if the defendant was the actual perpetrator, or if the defendant employed or supervised the perpetrator, had notice that abuse had taken place, and failed to take reasonable steps to prevent it from recurring.

In the Masonic Home cases, Judge Bruce R. Minto—after dismissing several claims based on a lack of sufficient evidence that the defendant was the supervisor or employer of an alleged abuser or that it had notice that certain employees were abusers—divided the plaintiffs into five groups for trial.

Yesterday’s appeal concerned the first trial, involving plaintiffs Nancy Deutsch and Sharon Mohr-McDermott. Both women are now 48 years old and claim to have been molested by the same person, Frank Pearson, in 1968.

Deutsch also claimed to have been molested by Randy Azelton in 1976.

At the time of the alleged abuse, Pearson was living at the home with his wife, Trudy Pearson, who was employed as a “houseparent”—a live-in caretaker for the children. The plaintiffs testified that at the time, they understood both Pearsons to be their houseparents, while Frank Pearson testified that he was a full-time college student with a full-time job elsewhere, and denied that any impropriety had taken place.

Azelton admitted that as a 22-year-old “relief houseparent,” who looked after some of the residents while their regular houseparents were away, he “probably took advantage of” Deutsch on several occasions.

Deutsch claimed that she had informed Trudy Pearson and another houseparent of what Earl Pearson had done. She also said that another houseparent had twice observed Deutsch lying on Azelton’s bed, and that Deutsch was removed to a different house, without explanation, after the second incident.

Described in Diary

Deutsch also testified that she described what had happened with Azelton in a diary and that the diary had been found by another houseparent.  She said she heard bits and pieces of a conversation in which the employee discussed the diary with someone else, although her attorney conceded that she was probably confused  about which houseparent found the diary, since the person she named, it turned out, had left the home three years before Azelton was hired.

After four weeks of testimony in the summer and fall of 2006, the jury returned a special verdict, finding for the plaintiffs on all critical issues. Jurors awarded the plaintiffs $15,000 each in economic damages, plus non-economic damages of $1.9 million for Deutsch and $1.6 million for Mohr-McDermott.

In rejecting the due process challenge, Justice Victoria Chavez, writing for the Court of Appeal, cited several cases upholding lawmakers’ right to revive claims that were previously barred by a statute of limitations. Most recently, she noted, another panel in this district upheld a law reviving certain claims against insurers resulting from the Northridge earthquake.

With regard to the as-applied challenge, the justice said the plaintiffs’ delay in filing suit could not constitute a due process violation because it was not state action.

She also distinguished cases in which courts struck down laws purporting to retroactively amend procedural laws to the detriment of plaintiffs. One of those was a 1935 California Supreme Court case holding that the Legislature could not retroactively apply an amendment to the five-year mandatory dismissal statute, moving up the trigger date from the date of the answer to the date the complaint was filed.

All of the cited cases “involved the potential denial of a vested property right protected by the due process clause:  the right to pursue an action,” the justice wrote. “In contrast...appellant’s right of repose is not a constitutionally protected right,” Chavez explained.

Chavez went on, however, to agree with the defendant that Minto committed prejudicial error by instructing the jury that Masonic Homes could be found liable if it “had actual notice of circumstances that would alert a prudent person to investigate, and that investigation might have revealed to them that unlawful sexual conduct was occurring.”

The instruction was wrong, the justice explained, because in order to revive a lapsed claim, the statute requires the plaintiff to prove the defendant actually knew of prior abuse by the perpetrator, not merely that it “should have known” that such abuse had occurred.

  Reversal, Chavez said, is required under Doe v. City of Los Angeles (2007) 42 Cal.4th 531, which was decided while Masonic Homes’ appeal was pending. In Doe, the court held that neither the Boy Scouts of America or the City of Los Angeles could be held liable under Sec. 340.1 for alleged molestation of Eagle Scouts by a police officer where the plaintiffs failed to allege specific facts that the BSA or the city was alleged to have been aware of and that would have been them on notice of a reason to investigate the accused officer.

Attorneys on appeal were Martin N. Buchanan of Niddrie, Fish & Buchanan and David N. Bigelow and Graham B. LippSmith of Girardi & Keese for the plaintiffs, and  Nicholas W. Heldt, Cynthia H. Plevin, and Ryan L. Harrison of Sedgwick, Detert, Moran & Arnold for the defendant.

The case is Deutsch v. Masonic Homes of California, Inc., B195418.


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