Court of Appeal Upholds Judgment for Church in Molestation Suit

By Kenneth Ofgang
Metropolitan News-Enterprise
January 9, 2012

http://www.metnews.com/articles/2012/sant010912.htm

The Court of Appeal for this district Friday upheld a judgment rejecting a claim against the Roman Catholic Diocese of Fresno over alleged child molestation more than three decades ago.

Div. Eight said jurors at the 2009 trial in Fresno Superior Court were correctly instructed that they could not find the church liable unless it knew that Monsignor Anthony Herdegen before the plaintiffs were molested, and that such knowledge could not be inferred from “innocuous or ambiguous” evidence.

Jurors unanimously agreed that Herdegen, then a priest at St. John’s Catholic Church in Wasco, molested brothers George and Howard Santillan. Evidence showed that George Santillan was abused from 1959, when he was 10 years old, until 1965, and that his brother was molested from 1960, when he was six, until 1973.

Jurors also found, however, that church officials didn’t know about the molestations at the time, and judgment was entered in favor of the church. The plaintiffs had sought $20 million in damages.

Friday’s decision was not a complete victory for the church, however.

Newly Discovered Evidence

The court upheld Judge Donald Black’s order granting Howard Santillan a new trial on the basis of newly discovered evidence that the church learned of a prior molestation by Herdegen while he was still abusing the older Santillan brother.

The Santillans said they did not tell each other or anyone else of the abuse until the 1980s, by which time the statute of limitations had expired. They sued in 2003, however, under Code of Civil Procedure Sec. 340.1(c).

The statute, which applies only to actions brought that year, revives time-barred claims against persons or entities for breach of a legal duty to protect children from sexual abuse if the defendant had notice that abuse had taken place and failed to take reasonable steps to prevent it from recurring.

The abuse, they said, took place behind closed doors, in Herdegen’s bedroom at the rectory. They also said that Herdegen’s housekeeper, Barbara Zeilman, either knew what was happening or should have known, since she let the boys into the rectory and knew they were often alone with the priest in his room.

‘I’m Sorry’

The plaintiffs’ mother said she confronted Zeilman, who died before the suit was filed, in 1987 and that the elderly woman did not answer the allegations directly but just cried. The mother was Zeilman’s hairdresser, both before and after the alleged confrontation, and repeatedly told the mother “I’m sorry, I’m sorry,” the mother asserted, although she never gave details.

The plaintiffs took the deposition of Cardinal Roger Mahony, who was an official of the Fresno Diocese for much of the 1960s and 1970s, before becoming archbishop of Los Angeles, a post from which he is now retired.

Mahony testified that during the period in question, a priest’s practice of taking boys into his bedroom and closing the door would have raised “grounds for....suspicion” of sexual misconduct and that “if there was [a] well-founded suspicion of some problem, I would expect [the housekeeper] would have told somebody.”

Alameda Superior Court Judge Ronald Sabraw, who heard motions in the case pursuant to a coordination order, granted summary judgment on the ground that whatever knowledge the housekeeper may have had could not be imputed to the diocese. The Court of Appeal, however, ruled in 2008 that it might be inferred from Mahony’s testimony that one of Zeilman’s duties was to report suspicious actions by priests.

The case was then sent to Fresno County for trial, setting the stage for Friday’s decision.

Justice Laurence Rubin, writing for Div. Eight, said Black’s instruction on ambiguous evidence was generally correct.

The trial jurist told the jury:

“Ambiguous conduct is conduct which is capable of being understood in two senses, where one sense might suggest a tendency or propensity to engage in ‘unlawful sexual conduct’ with a child, but where another sense might suggest innocent conduct or might suggest wrongful conduct that did not involve a tendency or propensity to engage in ‘unlawful sexual conduct’ with a child.”

Agency Rule

The instruction, Rubin said, has been given in a number of the coordinated clergy abuse cases and is consistent with rules governing the liability of a principal for the negligent or reckless conduct of that person’s agent.

The justice explained that jurors are not precluded from inferring knowledge from circumstantial evidence. But it must be evidence of sexual misconduct by the molester—such as testimony that a priest saw a boy leaving another priest’s room while pulling up his pants, then saw the other priest leaving the room doing the same thing—as opposed to merely evidence that the church transferred the priest to another post or took similar action for which there might be a legitimate explanation other than suspicion of sexual abuse, Rubin said.

With respect to the new trial order, Rubin explained that while the jury was deliberating, one of the plaintiffs’ attorneys received a telephone message from Patrick Wright, who later provided a declaration, saying he was molested by Herdegen in Wasco in 1967. The witness left Wasco permanently in the 1970s, moved to Arizona, and said he had only recently become aware of the trial.

He said he had told the school principal about what happened.

Rubin said the trial judge acted within his discretion. The fact that counsel waited until after the jury verdict to bring the new evidence to the court’s attention, rather than making a motion to reopen while the jury was still deliberating, does not compel a finding of lack of diligence, the justice concluded.

There was no question that Wright’s statement came as a surprise, the jurist said. The trial judge could credit counsel with acting in good faith, especially since the state of the law is unsettled as to whether a jury trial may be interrupted based on the discovery of new evidence during deliberations, he added.

The case is Santillan v. Roman Catholic Bishop of Fresno, 12 S.O.S. 71.