Thursday, July 7, 2011
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C.A. Revives Suit Claiming Man Drove Stepdaughter to Suicide
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday reinstated a wrongful death suit against a man accused of driving his stepdaughter to suicide through years of torture and sexual abuse.
Presiding Justice Norman Epstein, writing for Div. Four, said Los Angeles Superior Court Judge Jan A. Pluim erred in granting summary judgment rejecting Deborah Kincaid’s suit against her ex-husband, Jeffrey Kincaid.
The plaintiff’s daughter, Shannon Ellen Siebert, died in 2008 at the age of 28. Autopsy results indicated she jumped from the roof of the apartment complex where her mother lived.
Siebert’s death came three years after she told her therapist, and later police, that her stepfather had tortured, molested, and raped her repeatedly. The conduct began shortly after the Kincaids were married in 1991 and continued for 13 years, she alleged, and Jeffrey Kincaid was arrested.
Siebert claimed that she had Jeffrey Kincaid’s semen on her clothes and on the linoleum floor of her trailer home, but testing of the clothing and floor by Ventura County forensic scientists produced negative results. The prosecution did not go forward.
Changes Alleged
In her complaint, filed eight months after Siebert’s death, Deborah Kincaid alleged that before her marriage to the defendant, Siebert was a happy child and good student. Over time, however, she allegedly developed severe emotional problems and abused alcohol and drugs, spending several stints in rehabilitation and detoxification facilities and seeing several mental health professionals.
Jeffrey Kincaid demurred to the complaint on statute of limitations and causation grounds. The judge ruled that the plaintiff could not bring a survivorship claim, but could sue for wrongful death because that cause of action did not accrue prior to Siebert’s death.
The defendant subsequently moved for summary judgment, denying that the alleged conduct ever occurred.
In response, Deborah Kincaid offered a transcript of a 2005 phone call, which was recorded by police, in which she asked the defendant why he hurt her daughter, and he responded “I don’t know,” and “I don’t remember.” When she said she believed that he had abused Siebert, he said “I’m beginning to believe you’re right” and “I can’t make sense of it,” but again claimed not to remember.
Pushed to specifically answer whether he had sex with his stepdaughter, he said:
“I must have. I must have. It sounds logical. It explains a lot.”
He also said he wanted to make it up to Siebert but he doubted “that she would let me.”
Pluim ruled that the transcript was inadmissible hearsay. Without it, he said, there was no evidence of actionable misconduct and no triable issue of fact, so the defendant was entitled to summary judgment.
Adoptive Admissions
Epstein, however, in his opinion for the Court of Appeal, said the transcript was admissible under the adoptive admissions exception to the hearsay rule, and that it created a triable issue of fact.
He rejected the defense argument that the statements were not adoptive admissions because the defendant had previously denied the accusations on other occasions, including in a police-recorded conversation with Siebert.
Kincaid, Epstein noted, “did not simply remain silent the face of accusations,” but “affirmatively stated that he was not denying them, but that he could not remember the details.” While his denials on other occasions can be considered by a jury, they “do not bar a finding that he adopted appellant’s accusations as the truth,” the presiding justice wrote.
In a footnote, Epstein explained that although the parties were asked to, and did, provide supplemental briefing on the causation issue, the panel concluded that it would be premature to rule on it because—while it was not raised on demurrer—it was discussed in the summary judgment motion.
The case is Kincaid v. Kincaid, 11 S.O.S. 3662.
Copyright 2011, Metropolitan News Company