Wednesday, August 19, 2020
Court of Appeal:
Negligence Claim Against Gay-Bashing Pastor Not a SLAPP
Sermons Expressing Glee Over Slaying of Homosexuals Was Protected Speech, Opinion Says, but That Doesn’t Preclude Liability for Acts of Violence by Church Employees Against Protestors
By a MetNews Staff Writer
The Third District Court of Appeal held yesterday that while a pastor had a First Amendment right to rail against gays in his sermons—including hailing the slaying of them—a cause of action for negligent supervision of his employees, brought by three protesters who were allegedly subjected to violence and threats by those employees, did not arise out of protected activity.
“Freedom of expression under the First Amendment includes unpopular and hateful speech,” Justice Andrea L. Hoch wrote, adding: “Freedom of expression, however, does not include the right to use violence to carry out the viewpoint expressed.”
Her opinion, which was not certified for publication, reverses the order by Sacramento Superior Court Judge Raymond Cadei granting an anti-SLAPP motion brought by pastor Roger Otoniel Jimenez and Verity Baptist Church (“VBC”) with respect a cause of action against them for negligent supervision, as well as a cause of action for premises liability.
It affirms denial of the motion directed to causes of action, brought by plaintiffs Spenser Fritz, Darcy Betinis, and Sean Blackburn, for intentional and negligent infliction of emotional distress.
ROGER OTONIEL JIMENEZ
Minister Praised Murders
In his sermons—the texts of which were posted on the Internet—Jimenez expressed delight over the June 12, 2016 slaying of 49 persons in a gay nightclub in Orlando, Florida. Fifty-three others were wounded.
On the night of the mass murders, Jimenez told his parishioners that they “shouldn’t be mourning the death of 50 sodomites.”
“People say, like, ‘Well, aren’t you sad that 50 sodomites died?’ Here’s the problem with that. It’s like the equivalent of asking me, what if you asked me: ‘Hey, are you sad that 50 pedophiles were killed today?’
“Um, no, I think that’s great. I think that helps society. You know, I think Orlando, Fla., is a little safer tonight.”
Jimenez went on to comment:
“The tragedy is that more of them didn’t die. The tragedy is—I’m kind of upset that he didn’t finish the job.”
He said of gays:
“The Bible teaches that they’re all predators. That’s all the Bible says about them; they’re wicked, they’re vile, they’re predators. And God says that they deserve the death penalty for what they do.”
More than 1,000 persons, according to news accounts, protested outside the church on June 19, 2016. Among them were the three plaintiffs, who continued to stage protests in the ensuing months.
They encountered, according to their Superior Court complaint, physical and verbal abuse by persons connected with the church “on numerous occasions between June 19, 2016 and September 7, 2016.”
In granting the anti-SLAPP motion in connection with negligent supervision and premises liability, Cadei said “these causes of action arise from statements made by Jimenez” and that the statements were protected speech.
In the Court of Appeal, the plaintiffs agreed that statements made from the pulpit were protected, but challenged the extension of that protection to conduct exhibited by those purportedly under the control of Jimenez and VBC.
Hoch wrote, with respect to the cause of action for negligent supervision:
“We conclude the trial court erred in dismissing the negligence claim against VBC and Jimenez. Our conclusion rests on the distinction between the right of VBC and Jimenez to engage in free speech and their affirmative duty to adequately supervise their agents and employees. The record shows agents and employees of VBC and Jimenez engaged in physical violence and intimidation on multiple occasions against plaintiffs. The freedom of VBC and Jimenez to express their opinions on homosexuality does not relieve them of the duty to supervise their agents and employees to prevent reasonably foreseeable acts of physical violence and intimidation.”
The jurist went on to spell out:
“Plaintiffs’ respondeat superior negligence cause of action is directed to unprotected conduct in the form of physical violence and intimidation. These recurring, similar acts of physical violence showed the foreseeability of the harm even without the need to refer to Jimenez’s sermons….The essence of plaintiffs’ claims against VBC and Jimenez is not that they were injured by Jimenez’s words, but by the physical violence and intimidation of VBC and Jimenez’s employees and agents. Consequently, the gravamen of the complaint is not directed to protected activity and should not have been dismissed under the anti-SLAPP statute.”
Inasmuch as the complaint alleged repeated acts of physical violence on the premises, Hoch said, the plaintiffs stated a colorable claim for premises liability.
Addressing the defendants’ cross appeal from the denial of their motion, under Code of Civil Procedure §425.16, in connection with the motional distress causes of action, Hoch wrote:
“[W]e conclude the trial court properly denied the anti-SLAPP motion as to the causes of action for intentional and negligent infliction of emotional distress. Plaintiffs’ pleadings tie these causes of action to the physical violence and intimidation repeatedly engaged in by agents and employees of VBC and Jimenez. Because physical violence and intimidation are not protected activities, the claims are not subject to dismissal under the anti-SLAPP statute.”
The case is Fritz v. Jimenez, C084291.
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