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Court of Appeal:
L.A. Archdiocese’s Anti-SLAPP Motion Properly Denied
Panel Rules for Second Time in Case That Went to State Supreme Court, Was Remanded; Rubin Says Action by
Alleged Victims of Molestation by then-Priest, While Children, Does Not Stem From Protected Conduct
By a MetNews Staff Writer
The Court of Appeal for this district held Friday that an anti-SLAPP motion brought by the Roman Catholic Archbishop of Los Angeles and others was properly denied, rejecting the defendants’ contention that the action by seven adults, based on alleged molestation of them by a priest while they were children, stems from the church’s protected speech and litigation activity.
Div. Five on April 29, 2021 reached the same conclusion as it did on Friday. The case had been bounced back to it by the California Supreme Court for further consideration.
Presiding Justice Laurence D. Rubin wrote both opinions. Last year’s opinion was certified for publication; the one filed on Friday wasn’t.
Speech, Litigation
The Archdiocese contends that its failure to speak—that is, to warn of the propensities of a then-priest, Christopher Cunningham—constituted protected speech and that litigation conduct was implicated because the plaintiffs allege that by paying for the defense of the accused molester in unrelated civil proceedings and in the course of a Sheriff’s Department investigation, the conduct was ratified.
In last year’s opinion, Rubin said:
“[T]the gravamen of the suit against the Archdiocese is not speech—it is the molestation and failure to supervise.”
The state’s high court remanded for reconsideration in light of its July 29, 2021 opinion in Bonni v. St. Joseph Health System.
“Bonni instructs,” Rubin recited, “that we should focus not on the essence or gravamen of the cause of action, but on each of the multiple claims within that cause of action.”
After dissecting the claims, the jurist reached the same conclusion as before.
Four Claims
The Archdiocese pointed to four claims by the plaintiffs which, it contended, involve speech. He observed:
“The four purported negligence claims identified by the Archdiocese have one key factor in common: they are all based on a decision not to speak, not speech itself.
“The Archdiocese argues, correctly, that the constitutional right to free speech has been held to encompass a right not to speak….”
However, he pointed out, “not every decision to refrain from speaking falls within the anti-SLAPP statute’s definition of protected activity.”
What the Archdiocese is claiming, he said, is a “right not to warn about known or suspected sexual abuse of minors.”
Anti-SLAPP Statute
Rubin pointed out that the Bonny anti-SLAPP statute, Code of Civil Procedure §425.16, contains four categories of protected speech and conduct. He wrote:
“If a failure to speak is protected at all, it must fall within the fourth category, as ‘other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or issue of public interest.’ Indeed, as there is no suggestion the failures to speak here related to the Archdiocese’s right of petition, the issue is further narrowed. Specifically, does plaintiffs’ complaint allege failures to speak which constitute; conduct in furtherance of the exercise...of the constitutional right of free speech in connection with a public issue or issue of public interest.
“We conclude the failure to speak alleged as a basis for liability here is not conduct in furtherance of the right of free speech.”
He went on to say:
“The Archdiocese points to no allegations in the complaint of affirmative misrepresentations or concealment and no claims of partial speech. They have therefore failed to identify a claim based on protected speech.”
Litigation Conduct
Addressing the contention that an anti-SLAPP motion lies based on protected litigation conduct, Rubin said that the Archdiocese engages in “cherry-picking allegations of litigation conduct” while “they are, in fact, incidental to the actual allegations of ratification.”
The case is Ratcliff v. The Roman Catholic Archbishop of Los Angeles, B302558.
Rubin’s opinion affirms an order by then-Los Angeles Superior Court Judge Elizabeth R. Feffer, now a private judge.
J. Michael Hennigan, Lee W. Potts and Elizabeth S. Lachman of the downtown Los Angeles firm of McKool Smith Hennigan represented the Archdiocese. Pasadena attorney Anthony M. DeMarco joined with Holly N. Boyer, Shea S. Murphy and Kevin K. Nguyen of the Pasadena firm of Esner, Chang & Boyer in acting for the plaintiffs.
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