*****
By Kay EbelingSince 1964, the Franciscan Friars of Santa Barbara have produced 24 pedophiles, resulting in 60 settled lawsuits, likely hundreds more victims. “This is a city of a hundred thousand people, and the Franciscans still have perpetrators hidden here,” said Tim Hale, who with his partners, obtained $28 million in the late 1990s, for victims of serial pedophiles among the Franciscan Friars.
A woman contacted Hale in early 2004 with a case similar to two in the Southern California clergy cases, but the window in the statute of limitations closed at midnight January 1, 2004. Hale (pictured at right) decided to get around the statute of limitations by filing suit against the Franciscan Friars of Santa Barbara for being an Ongoing Public Nuisance. (The entire complaint is copy and pasted at the end of this post.)
“Defendants, in concert with each other and with the intent to conceal and defraud,
conspired and came to a meeting of the minds whereby they would
misrepresent, conceal or fail to disclose information relating to the sexual misconduct of the Perpetrator and/or Defendants,” reads the September 22 Complaint.
“Even if it works it’s not going to save every case out there, beyond the SOL window,” Hale said. “This works in the Franciscan context in Santa Barbara because of their extensive history of this conduct.
The key word is ongoing. Because the Friars continue to hide, lie about, and transfer pedophile priests, the cover-ups are ongoing. Since children are still being raped by Franciscans friars who’ve been transferred from Santa Barbara to other cities, the menace to the community is ongoing, no statute of limitations.
**************************
Correction (09/23):Tim Hale wrote to tell me:
"I actually didn't speak with or meet Mary until November of 2007. I believe the Public Nuisance cause of action does allow Maria's complaint to survive the statute of limitations attacks that are coming, that was not the purpose of the cause of action. The nuisance cause of action precedes by six years the current caselaw the church is now using to attack survivor's lawsuits based on the statute of limitations. I've attached a document we filed yesterday which spells this out in more detail."
City of Angels will post a follow-up along with the church's attempt to change the venue of this EXTREMELY local Santa Barbara public nuisance suit so it can be considered in LA by Judge Emilie Elias with the rest of the LA mess. Update to come.*******************************
“We have this huge body of evidence against one specific entity,” Hale said. “Our one law firm has devoted decades to finding evidence against this one province,” Hale continued trying not to get too excited about other cities filing similar suits.
Still I'm thinking Boston, New Orleans, Los Angeles, Michigan, Minneapolis, Chicago, all cities with law firms that have accumulated “a huge body of evidence.”
CHICAGO???Is there an attorney out there who’ll file a public nuisance against the Chicago Archdiocese in my name?
“It’s going to vary on a case by case basis,” Hale said.
The First Amended Complaint reads:
The “Franciscan corporate practice” of concealing the identities, crimes, and current assignments of these perpetrators ends up enabling and empowering them, so they continue to commit sexual assault on children. The Franciscans “continue to place at risk countless children.”
“For decades the Franciscans have successfully frustrated law enforcement efforts to enforce this compelling state interest, shielding Franciscan perpetrators from criminal prosecution by concealing their crimes and the whereabouts of known perpetrators. Time and again the Franciscans' efforts have helped such criminals escape prosecution through, among other methods, expired criminal statutes of limitation. As a result, very few of these men have been prosecuted, convicted, and forced to register as sex offenders. Thus, the Franciscans have successfully concealed from the public the identities of an unknown number of Franciscan perpetrators.
The entire First Amended Complaint against the Friars as a Public Nuisance is copied at the bottom of this post.
Below is excerpt from Complaint filed last month against the Franciscans of Santa Barbara for not identifying and removing pedophiles immediately, instead allowing 60 (SIXTY!) children to be raped in this idyllic beach town north of L.A.
As a result the Franciscans created a:
PUBLIC NUISANCE "After sending Ladenburger for treatment for his criminal conduct twice in the 1980s, the Franciscans allowed him to continue to work as a priest, including working at high schools.
***
At Left LouisLadenburger
******At no time did the Franciscans report Ladenburger’s criminal acts to law enforcement. At no time did the Franciscans warn any families or communities where Ladenburger had worked or was working as a priest.
As a result, when he left the priesthood nearly twenty-years later, Ladenburger had never been convicted of a sex crime, was not a registered sex offender, and only the Franciscans were aware of his pedophilic propensities. An unknown number of children have been sexually assaulted by Ladenburger as a result.
In May of 2007, Ladenburger was arrested for sexually assaulting several children in Idaho.After Ladenburger’s arrest last year, the Franciscans denied having any record of his past abuses. Fr. Jurisich finally admitted to Ladenburger’s sordid history, and the Franciscans' knowledge since the 1980s of the risk he posed to children.
Ladenburger has since pleaded guilty to lewd conduct with two boarding school students, and on March 24, 2008, he was sentenced to five years in prison. The sentencing judge, the Honorable John Luster, found Ladenburger’s conduct so severe that he rejected a joint request by the prosecution and the defense of a suspended sentence.
Ladenburger has admitted he has a sex addiction.
These latest victims are further evidence of the continuing threat to all children posed by the Franciscans refusal to warn the public of their current and former members who have been accused of sexual abuse.Four months after the Franciscans first denied then admitted they knew about the threat posed by Ladenburger, they were at it again. One would hope that after decades of Franciscan sexual abuse and cover-ups, at some point - perhaps, for instance, now that the number of confirmed Santa Barbara victims of Franciscan childhood sexual abuse has risen to 60 (sixty) - the Franciscan hierarchy would finally reconsider the corporation’s horribly flawed strategy of lying about and refusing to identify Franciscan priests and brothers accused of sexual abuse.
One would hope that after seeing today’s children continuing to be victimized as a result of this failed corporate strategy they would finally recognize that for the sake of both past and future victims, it was time to tell the truth.
However, as evidenced by their recent conduct towards (plaintiff) Mary, the Franciscans have learned nothing from the sad events involving Ladenburger, much less from their sordid history. Instead, they continue to re-victimize survivors of Franciscan sexual abuse, and to create new victims, by continuing to lie, conceal and cover-up the identities of Franciscans who pose a risk to children.
******
The pedophile epidemic in the Catholic Church is a community and state problem. Religious orders who continue to hide and in other ways aid and abet pedophiles are producing an ongoing Public Nuisance, and as such can be prosecuted and sued for ongoing cover-ups.
*****Rembrandt rendition of St. Francis*********
“All of these men would have been registered sex offenders right now,” Hale said. “By refusing to publicly identify them and report these criminals, the Franciscans have created public nuisance throughout the state of California and other areas nearby.”
Franciscan crimes are “a continuing pattern and practice and recent events that show children are still at risk,” Hale said.
As I read the complaint I kept thinking, put this quote in the lead, copy and paste this paragraph in, at the top. Over and over again I wanted to put quotes and whole paragraphs -- always at the top of the post, because this complaint is so well written. So it’s just copy and pasted in entirety below (with the name Mary Jones replacing the real name of the plaintiff).
A few short notes about public nuisance law:
***********
(From South Carolina Law Review, Vol. 52, P. 287, 2001)
During the past few years, more than a score of municipalities (and the State of New York) have brought suit against gun manufacturers, distributors and retailers, seeking to hold them accountable for the consequences of gun violence within the municipalities' jurisdiction. This article critically assesses whether the theory of public nuisance is an appropriate vehicle for bringing such suits. Inasmuch as public nuisance theory is itself only dimly understood, the article begins with an historical summary of public nuisance law. It then considers contemporary objections to the continued vitality of public nuisance, and concludes that, properly defined and limited, public nuisance can be appropriately employed to hold gun sellers responsible for truly outrageous conduct, typically in cases involving the subversion or avoidance of legislative will.
State legislatures, such as those in California and Iowa, have defined public nuisance as anything “injurious to health” or “indecent” or “unreasonably offensive to the senses” that interferes “with the comfortable enjoyment of life or property,” or “unlawfully obstructs the free passage or use.” Rhode Island’s Supreme Court held that public nuisance is “harm” that people are either suffering or threatened which they “ought not have to bear."
**************
1. English Common LawThe tort of nuisance dates back to twelfth century English common law.19 It began as a criminal writ, belonging only to the Crown. It was used in cases that involved encroachments upon the King’s land or the blocking of public roads or waterways. The King sought to punish these criminal infringements, commonly known as “purprestures,” through criminal proceedings. 20 Over time, activities prosecuted as public nuisances included everything from embezzling public funds to having a tiger pen next to a highway, from assisting a homicidal maniac to escape to placing a mutilated corpse on a doorstep.
By the fourteenth century, public nuisance principles were extended to include rights common to the public, such as roadway safety, air and water pollution, disorderly conduct and public health (e.g., to stop the spread of disease)
Long before any governmental regulations existed—nuisance provided a flexible judicial remedy to address conflict land use and social welfare
From:
http://www.nuisancelaw.com/learn/historical********
In 1875, Horace Wood, was the first American to write a treatise on nuisance describing the doctrine as a “wilderness of law.
***********When the offending act is so outlandish there are no laws against it -- such as a catholic priest sodomizing an altar boy -- public nuisance can fill the gap, where no law dares to go.
And here it stands today, from that same website:
Ultimately, the expanded language in Section 821B allowed courts, in a narrow way, to find the existence of a public nuisance in cases involving conduct that previously was not considered tortious. Section 821B includes and defines three factors to be used in guiding courts as to the meaning of “‘unreasonable,’” two of which—factors (a) and (c)—use very nebulous, open-ended language. It is these ambiguities and vagaries that being used by creative advocates and jurists. Instead of untangling the “jungle” grown by 900
years of confused jurisprudence, and despite the clear warnings contained in the Restatement’s comments, Section 821B has become a license for some judges and jurors to provide their own definitions of “unreasonable interference” and “a right common to the general public.**************
(From May 1971, the American Law Institute adopted a “compromise” version of Restatement (Second) of Torts § 821B.)
******************
So as public nuisance law stands
Federally
As well as locally
And at a state level
It is up to a jury or judge to decide if the acts alleged constitute a public nuisance.
Public Nuisance law is almost totally flexible and adaptable to a specific issue.
SUCH AS
the pedophile priest epidemic in the Catholic Church.
These are times of change, aren’t they.Since public nuisance law currently has “arbitrary ambiguous language,” local juries and judges end up being the ultimate “deciders”
DOES ANYONE doubt that serial sodomy of altar boys and raping reverent young girls is enough of a public nuisance to require prosecution?
Public Nuisance law up to now is used primarily against product manufacturers.
Most remarkably Public Nuisance law was applied in Illinois against gun manufacturers.A true public nuisance affects the entire public. The money in that case went to specific plaintiffs who did not distribute the cash into the community, and we see today, gun violence death of adolescents in the past five years in Chicago on the level of the Al Capone era.
So while we're all applauding that 100 law enforcement agents raided
Tony Alamo's ministry in Arkansas after a two year investigation into allegations of child abuse,
I just wonder, why can’t they storm an archdiocese chancery in a city like Boston or Chicago or Los Angeles where crimes have come out through civil documents that show the church conspired to keep pedophiles in parishes, neglected the safety of children.
Where is law enforcement? Why aren’t they storming Catholic Archdioceses with the same vigor as they apply to easy to prosecute entities like Tony Alamo Ministries.
There’s only, oh, maybe a thousand percent more pedophile crimes committed in Catholic Churches than Alamo could possibly commit.Tim Hale is calling to account the entire Franciscan brotherhood for allowing perpetrators to operate.
His partner David Nye began his career as a Los Angeles City Attorney.The Franciscans ongoing crimes:
Never reporting these felony sex crimes against children to law enforcement.
Lying to victims, not notifying new potential victims that the brother they just transferred into your school is a known pedophile.
“THERE’S A COMPELLING STATE INTEREST IN PROTECTING KIDS”The sheer numbers of known confirmed sex crime victims in this one small town of Santa Barbara
This is not a civil issue between one plaintiff and one religious order, even though the complaint is filed in the name of Mary Jones. -
These are magnanimous crimes of negligence to say the least, purposeful aiding and abetting of sex crimes in the maximum.
The entire community is unsafe because of pedophiles in Catholic religious orders in their midst.
He’s using this one case of Mary Jones to show that this is an ongoing problem, not just a few cases of molestation, this is an epidemic of pedophilia that festered in United States Catholic seminaries and then parishes.
The sheer numbers
More from interview with Tim Hale:
“With the continuing public nuisance, Franciscan friars who have been identified as pedophiles contine to abuse children. Their continuing pattern and practice and recent events that show children are still at risk."
“There’s a compelling state interest in protecting kids."Onward. . .
Below are pictures
and the full text of Hale's
First Amended Complaint
Click to enlarge
MISSION SAN LUIS REY
Holds retreats for, among others, students from Mater Dei High School in Santa Ana
Onward. . .
Here is Hale's Complaint in full except the plaintiff name has been changed to Mary Jones:
DAVID L. NYE (Bar #67009)
TIMOTHY C. HALE (Bar #184882)
NYE, PEABODY, STIRLING & HALE, LLP
33 West Mission St., Suite 201
Santa Barbara, California 93101
Telephone: (805) 963-2345
Facsimile: (805) 563-5385
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
For the County of Santa Barbara, Anacapa Division
MARY JONES, an individual,
Plaintiffs,
v.
Franciscan Friars of California, Inc.;Old Mission Santa Barbara; and Does 5 through 100, Inclusive.
Defendants.
Case No. 1265207
FIRST AMENDED COMPLAINT FOR DAMAGES FOR:
1. PUBLIC NUISANCE
2. NEGLIGENCE
3. NEGLIGENT SUPERVISION/
FAILURE TO WARN;
4. NEGLIGENT HIRING/RETENTION
5. FRAUD;
6. FIDUCIARY/CONFIDENTIAL RELATIONSHIP FRAUD AND CONSPIRACY;
7. BREACH OF FIDUCIARY DUTY;
8. NEGLIGENT FAILURE TO WARN, TRAIN, OR EDUCATE PLAINTIFFS;
9. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
10. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS;
11. VIOLATION OF PENAL CODE ' 11166;
12. VIOLATION OF BUSINESS & PROFESSIONS CODE ' 17200;
13. FRAUD AND DECEIT;
14. PREMISES LIABILITY;
15. PROCURING OR MAKING A CHILD AVAILABLE TO ANOTHER
Based upon information and belief available to Plaintiff Mary Jones at the time of the filing of this First Amended Complaint, Plaintiff makes the following allegations:
PARTIES
18. Plaintiff Mary Jones is an adult female over the age of 26. Plaintiff was a minor residing in the county of Santa Barbara at the time of the sexual abuse alleged herein. Plaintiff’s complaint is timely filed to address the continuing Public Nuisance created by Defendants= ongoing conduct causing injury to the public and special injury to her. It also is timely pursuant to Code of Civil Procedure section 340.1(a)(2-3) and (b)(2) as Plaintiff discovered within three years of filing this complaint that her injuries were caused by the childhood sexual abuse alleged herein. It is also timely pursuant to Evans v. Eckelman (1990) 216 Cal.App.3d 1609.
2. Defendant Doe 1/Franciscan Friars of California, Inc. (ADefendant Franciscan Friars@ or Athe Franciscans@) is a Roman Catholic Order and a non-profit public benefit corporation organized for religious purposes and incorporated under the laws of the State of California, doing business in Santa Barbara. Defendant Order is the religious order that owned and/or operated the properties in Santa Barbara - St. Anthony’s Seminary (ASt. Anthony’s@) and Defendant Old Mission Santa Barbara - where many of Does 1 -100's other pedophilic and/or ephebophilic agents sexually assaulted children.
2.1 Defendant Doe 4/Old Mission Santa Barbara (ADefendant Old Mission@), also known as Saint Barbara Parish, is a Roman Catholic church or parish located within the geographical boundaries of the Archdiocese in Santa Barbara, California. Old Mission is the church or parish where the perpetrator was assigned, or in residence, or doing supply work, or volunteering at, or visiting during the period of wrongful conduct. Does 1 through 100 are sometimes referred to collectively as ADefendants.@
2.2 The Perpetrator was at all times relevant an individual residing and/or doing business in the City and County of Santa Barbara, California, and was a Roman Catholic priest, member, religious brother, employee, agent and/or servant of the Franciscans and/or Defendant Old Mission and/or Does 5-100. During the dates of abuse, the Perpetrator was assigned, or in residence, or doing supply work, or volunteering, or visiting at Defendant Old Mission, and was under the direct supervision, employ and control of the Franciscans and/or Defendant Old Mission and/or Does 5-100.
3. Defendant Does 5 through 100, inclusive, are individuals and/or business or corporate entities incorporated in and/or doing business in California whose true names and capacities are unknown to Plaintiffs who therefore sue such defendants by such fictitious names, and who will amend the Complaint to show the true names and capacities of each such Doe defendant when ascertained. Each such Defendant Doe is legally responsible in some manner for the events, happenings and/or tortious and unlawful conduct that caused the injuries and damages alleged in this First Amended Complaint.
4. The Perpetrator and/or each Defendant was and/or is the agent, servant and/or employee of the Franciscans and/or Defendant Old Mission and/or Does 5 -100. The Perpetrator and/or each Defendant was acting within the course and scope of his, her or its authority as an agent, servant and/or employee of the Perpetrator and/or other Defendants. The Perpetrator and/or the Franciscans and/or Defendant Old Mission and/or Does 5 -100, and each of them, are individuals, corporations, partnerships and other entities which engaged in, joined in and conspired with the other wrongdoers in carrying out the tortious and unlawful activities described in this First Amended Complaint, and the Perpetrator and/or each Defendant ratified the acts of the Perpetrator and/or the Franciscans and/or Defendant Old Mission and/or Does 5 -100 as described in this Complaint.
BACKGROUND FACTS APPLICABLE TO ALL COUNTS
5. Plaintiff Mary Jones was raised Roman Catholic and attended a number of Santa Barbara parishes as a child, including San Roque, Our Lady of Mt. Carmel in Montecito and Defendant Old Mission. She met the Perpetrator at the Santa Barbara Girl’s Club in or about 1964 when she was approximately six (6) years old. He was introduced to the girls as a member of Defendant Franciscan Friars, and Mary assumed he was a Roman Catholic priest, having never heard nor having any concept of a Roman Catholic religious brother.
In getting to know the young girl the Perpetrator soon discovered Mary was living in a single-parent family without a father, making her an ideal target as a child starved for anything resembling paternal attention and affection. Mary in turn was overjoyed by the attention the Perpetrator showered upon her. After a short period of grooming Mary for abuse (showering her with praise, taking her to the zoo or the beach, buying her candy and hamburgers, and touching and holding her), he began sexually abusing her.
For approximately a year the Perpetrator assaulted Mary on a regular basis. Much of the abuse took place in the living quarters for some of the members of Defendant Franciscan Friars that were located between St. Anthony’s Seminary and the Old Mission. In these instances, numbering at least forty (40) or more, the Perpetrator would have Mary change into her bathing suit in the middle of the room while he watched. On nearly half of those occasions the Perpetrator would allow other Franciscans to watch with him while the embarrassed young girl removed all of her clothes and underwear and changed into her swimsuit, trying in vane to cover herself by holding a towel in her mouth as she disrobed. She recalls it seemed as if the Perpetrator was constantly introducing her to new Franciscans who watched her strip naked, and to this day she can still feel their eyes exploring her exposed body.
Approximately twenty (20) times the Perpetrator sexually abused Mary in the stairwell leading to the parish organ at the Mission, claiming he needed to carry her up and down the stairwell because the stairs were too steep and he was afraid she would fall. In reality, he used this excuse as an opportunity to digitally penetrate her repeatedly, sometimes to the point the six year-old’s genitals would become raw. The Perpetrator also digitally penetrated Mary at times while they sat in his car at the beach, covering them both with a blanket so he could sexually assault her without being seen. Sometimes the Perpetrator would rub his penis up and down the young girl’s underwear, occasionally pushing it underneath her underwear.
Finally, on approximately ten (10) occasions he induced her to masturbate him, sometimes until he climaxed. These assaults took place in the room in the Mission where the parish organ was located, and in the Perpetrator’s car.
6. The Perpetrator and Defendants' other pedophilic and/or ephebophilic agents committed acts of Childhood Sexual Abuse in Santa Barbara before, during, and after the time Mary attended Defendant Old Mission. The Franciscan corporate practice of concealing the identities, propensities, and current assignments and/or residences of these perpetrators has enabled and empowered such men to sexually assault and/or continue to place at risk countless children around the various locations in the Western United States and throughout the world where these Franciscans have conducted their business for nearly a century, including but not limited to Franciscan friaries, missions, parishes, retreat centers and other communities in the western States of Arizona, California, Missouri, Nevada, New Mexico, Oregon, Utah and Washington, and in countries such as Africa, Brazil, El Salvador, Guatemala, Israel, Italy, Mexico, Peru, the Philippines and Thailand. Finally, an unknown number of Defendants= former pedophilic and/or ephebophilic agents, whose propensities Defendants have been aware of for years but have disclosed to no one, continue to sexually assault and/or place at risk countless children around these various locations as well as at numerous other locations, such as in the State of Idaho, where these former Franciscans now reside.
7. Defendants knew or should have known of the risk posed by the Perpetrator to children before and during the time period he was assaulting Mary. In addition to the approximately ten to fifteen instances where the Perpetrator induced Mary to strip naked and change into her swimsuit in the middle of the room in the presence of at least one other Franciscan, Mary recalls an instance where the Perpetrator and a second Franciscan were sitting in chairs and watching as she undressed in the middle of the room. However, on this occasion, as she began to pull her bathing suit bottoms on while wearing no other clothing, a third Franciscan unexpectedly entered the room. She perceived him to be an authority figure as both the Perpetrator and the second Franciscan immediately stood up when he entered and seemed nervous. She sensed the third Franciscan was very displeased she was there, and felt as if she was in trouble. After a tense exchange between the third Franciscan and the Perpetrator, the Perpetrator rushed her out of the room and off the grounds shortly thereafter. However, the Franciscans never warned Mary’s mother, much less the community or law enforcement, that one of their members was inducing a six year-old girl to strip naked at the Mission while he and other Franciscans watched. As a result, although further abuse could have been prevented, the Perpetrator’s abuse of Mary continued after this incident.
Thus, before the Perpetrator’s assaults against Mary ended, at least two other Franciscans were aware of the abuse being committed by the Perpetrator, and at least one of them was participating in exploiting a six year-old girl to create a pedophilic peep-show at the Old Mission and St. Anthony’s. The Franciscans could have stopped this abuse from continuing, and undoubtedly could have saved other young girls from subsequent abuse by the Perpetrator. Instead, the Franciscans told no one, protected their clearly pedophilic brethren and their own financial interests, and as a result the abuse continued.
8. Numerous other pedophilic and/or ephebophilic agents of Defendants have been sexually assaulting countless other children in, among other locations, Santa Barbara since 1936. During this time at least forty-two (42) pedophilic and/or ephebophilic Roman Catholic priests or religious brothers have been assigned to work at and were living at and/or visiting various locations around Santa Barbara County, including but not limited to St. Raphael’s Church in Goleta, San Roque, Our Lady of Guadalupe, Our Lady of Mt. Carmel in Montecito, and the adjoining properties of St. Anthony’s and the Mission. Twenty-five (25) of those priests or religious brothers were or are Franciscans, identified below in the decades they first appeared and continued to reside in or visit Santa Barbara based on information known to date:
1 - Fr. Owen Da Silva (1930s)
2 - Br. Berard Connolly (1940s, 1980s - 1990s)
3 - Fr. Martin McKeon (1950s - 1960s)
4 - Fr. Edward Henriques (1960s)
5 - Fr. Mario Cimmarrusti (1960s - 1970s)
6 - Fr. Mel Bucher (1960s)
7 - Fr. Forrest McDonald (1960s - 1970s)
8 - Br. Kevin Dunne (1960s - 1970s)
9 - Br. Sam Cabot (1960s-1980s)
10 - Fr. Edmund Austin (1970s)
11 - Fr. Gus Krumm (1970s - 1980s)
12 - Fr. Paul Conn (1970s - 1980s)
13 - Fr. Dave Johnson (1970s - 1980s)
14 - Fr. Joseph Prochnow (1970s - 1980s)
15 - Br. Matteo Guerrero (1970s, 1990s - 2000s)
16 - Fr. Robert Van Handel (1970s -1990s)
17 - Fr. David Carriere (1970s - 2000s)
18 - Fr. Steve Kain (1980s)
19 - Fr. Philip Wolfe (1980s)
20 - Pre-novitiate candidate Ed Byrom (1980s)
21 - Pre-novitiate candidate Tom Thing (1980s)
22 - Fr. Chris Berbena (1980s)
23 - Fr. Remy Rudin (1980s - 1990s)
24 - Br. Gerald Chumik (2000s)
25 - Pedro Vasquez (2000s)
At least eighty-one (81) children have been sexually abused in Santa Barbara by Roman Catholic priests or religious brothers since 1936. Sixty (60) of those children were abused by Franciscan priests or religious brothers. The confirmed number of victims and Franciscan perpetrators grows each year.
THE FRANCISCANS= CONTINUING REFUSAL TO PUBLICLY IDENTIFY ALL OF THEIR CURRENT OR FORMER PEDOPHILIC MEMBERS HAS CREATED A DEADLY ENVIRONMENT FOR TODAY’s CHILDREN
9. Time and again the Franciscans have had the opportunity to end the cycle of abuse by reporting perpetrators to law enforcement, and by warning the general public when a Franciscan has been accused of sexually assaulting a child. Tragically, the Franciscans ongoing efforts to protect their pedophilic members, and to protect the corporation’s financial interests, establish a clear and continuing pattern of conduct causing new harm to today’s children, and new trauma to adult survivors of Franciscan childhood sexual abuse.
10. Since at least 1964 the Franciscans have known some of their priests and religious brothers were sexually assaulting Santa Barbara children, and of the fact any child exposed to their agents was at a heightened risk of being sexually assaulted. Since at least 1964 the Franciscans have been concealing these crimes, and shielding their criminal members from discovery. Sadly, even with the recent litigation, the Franciscans have not changed their ways. The following are examples only of some of the most recent known Franciscan conduct placing children at risk. These examples illustrate how the Franciscans= conduct remains a present day threat to children wherever the Franciscans conduct their business, and is not just a thing of the past.
In July of 2003, the Franciscans assigned an admitted perpetrator - Fr. Gus Krumm - to a Sacramento parish next door to a school without any warning to the community. One Franciscan priest readily admitted he was aware of Fr. Krumm’s prior abuses but did not think it was appropriate to share such information with parishioners. Despite the fact the Franciscans claimed Fr. Krumm was forbidden contact with young children, he did in fact have direct contact with young children while at this assignment. Fr. Krumm’s current whereabouts are unknown to the general public.
In July 2004 the Franciscans admitted - albeit only after a reporter from the Dallas Morning News made the facts public - that yet another predator had been calling the Old Mission home for over two years. Specifically, in the early to mid-1970's Franciscan Br. Gerald Chumik assaulted at least one victim in Canada. Canadian authorities attempted to prosecute Br. Chumik in the 1990s, but Chumik fled to the United States. The Franciscans successfully and secretly harbored Br. Chumik, a fugitive from justice, behind the walls of the Old Mission for over two years. The Franciscans provided no warning to the public, much less to neighboring schools, of the threat Br. Chumik posed until the Dallas Morning News published the truth about Chumik. Br. Chumik’s current whereabouts are unknown to the general public.
In May 2005, the former rector of St. Anthony’s, Fr. Xavier Harris, admitted that while he was assigned at St. Williams in Los Altos in 2001, a well-known Franciscan Perpetrator, Fr. Steve Kain, assisted there as well. Fr. Harris did not warn any of the parishioners of Fr. Kain’s propensities, nor, to his knowledge, did any other Franciscans warn any parishioners about Fr. Kain. With no shortage of victims who were unaware of his propensities, Fr. Kain abused again. Fr. Harris admitted that Fr. Kane was then forced to stop assisting at St. Williams due to the abuse allegations, and was transferred to St. Boniface in San Francisco. Once again, Fr. Harris admitted he had no knowledge of any warnings to parishioners at St. Boniface regarding Fr. Kain’s propensities. Fr. Kain’s current whereabouts are unknown to the general public.
In July 2005, the Franciscan Vicar Provincial, Br. Tom West, admitted Mission resident, Franciscan Pedro Vasquez, had been accused of sexually assaulting a person West described as a Ayoung man.@ The Franciscans had allowed Vasquez to live at the Mission for three years without any warning to the community, and admitted to this fact in July of 2005 only when they knew its publication was inevitable. Fr. Vasquez’s current whereabouts are unknown to the general public.
In late 2006 a victim spoke with Fr. Virgil Cordano at the Mission and informed Cordano he had been sexually assaulted in 1976 by a Franciscan religious brother, Br. Mateo Guererro. Cordano did not act surprised at this information, admitted there had been other complaints against Guererro, and admitted that Guererro had been transferred as a result. To date, the Franciscans have taken no steps to make this information public, no steps to determine whether there are any other victims of Guererro who have not come forward, no steps to notify the communities in which Guererro has been assigned over the course of his career as a Franciscan, and no steps to warn the current community where Guererro is assigned. Br. Guererro’s current whereabouts are unknown to the general public.
Since approximately 1994 to the present the Franciscans have assigned another admitted perpetrator - Fr. Mel Bucher - to Old Mission San Luis Rey. Fr. Bucher sexually assaulted at least one adolescent boy in Oregon in the early 1970s. Despite this admission, the Franciscans continue to allow Fr. Bucher to manage the Mission San Luis Rey retreat center. The retreat center conducts retreats for, among others, high school-aged children, including overnight retreats for students from, among other locations, Mater Dei High School in Santa Ana. At least one current Franciscan and former Mater Dei faculty member has stated he would not discuss the allegations of abuse by Fr. Bucher with Mater Dei faculty or administrators because he does not Asee any purpose being served in that.@ The Franciscans have never warned the families of these students of Fr. Bucher’s history of abuse.
Such action and inaction by the Franciscans has and will continue to produce disastrous results, as evidenced by the case of Fr. Louis Ladenburger. Ladenburger left the priesthood and the Franciscan order in 1996. However, early in his career as a Franciscan Ladenburger was treated for what the Franciscan Provincial Minister, Mel Jurisich, has described only as “inappropriate professional behavior and relationships.” Such vague terms are standard procedure for the Franciscans when describing acts of childhood sexual abuse by their priests and religious brothers. After sending Ladenburger for treatment for his criminal conduct twice in the 1980s, the Franciscans allowed him to continue to work as a priest, including working at high schools. After another psychological review in 1993, the Franciscans insisted on restricting Ladenburger’s ministry. However, at no time did the Franciscans report Ladenburger’s criminal acts to law enforcement.
At no time did the Franciscans warn any families or communities where Ladenburger had worked or was working as a priest. As a result, when he left the priesthood nearly twenty-years after the Franciscans first learned of and began to conceal the risk he posed to children, Ladenburger had never been convicted of a sex crime, was not a registered sex offender, and only the Franciscans were aware of his pedophilic propensities. An unknown number of children have been sexually assaulted by Ladenburger as a result. In May of 2007, Ladenburger was arrested for sexually assaulting several children in Idaho.
When first contacted shortly after Ladenburger’s arrest last year, the Franciscans denied having any record of past abuses by Ladenburger. After this initial denial, Fr. Jurisich finally admitted to Ladenburger’s sordid history, and the Franciscans= knowledge since the 1980s of the risk he posed to children. Ladenburger has since pleaded guilty to lewd conduct with two boarding school students, and on March 24, 2008, was sentenced to five years in prison. The sentencing judge, the Honorable John Luster, found Ladenburger’s conduct so severe that he rejected a joint request by the prosecution and the defense of a suspended sentence. Ladenburger has admitted he has a sex addiction. These latest victims are further evidence of the continuing threat to all children posed by the Franciscans refusal to warn the public of their current and former members who have been accused of sexual abuse.
Four months after the Franciscans first denied then admitted they knew about the threat posed by Ladenburger, they were at it again. One would hope that after decades of Franciscan sexual abuse and cover-ups, at some point - perhaps, for instance, now that the number of confirmed Santa Barbara victims of Franciscan childhood sexual abuse has risen to sixty - the Franciscan hierarchy would finally reconsider the corporation’s horribly flawed strategy of lying about and refusing to identify Franciscan priests and brothers accused of sexual abuse. One would hope that after seeing today’s children continuing to be victimized as a result of this failed corporate strategy they would finally recognize that for the sake of both past and future victims, it was time to tell the truth. However, as evidenced by their recent conduct towards Mary, the Franciscans have learned nothing from the sad events involving Ladenburger, much less from their sordid history. Instead, they continue to re-victimize survivors of Franciscan sexual abuse, and to create new victims, by continuing to lie, conceal and cover-up the identities of Franciscans who pose a risk to children.
In this case, Mary contacted the Franciscans for help when she finally began to make the connection between her injuries and the abuse she suffered. Because of her young age at the time of the abuse, and the trauma she suffered during the abuse, she had been unable to recall the name of the Perpetrator. She informed the Franciscans of her age at the time of the abuse (6 years old), of the Perpetrator’s grooming techniques (such as buying Mary candy), of the nature of the abuse (primarily digital penetration), of the fact the Perpetrator often abused her while they sat under a blanket, and of the fact he appeared to come and go quite a lot and may not have lived at the Old Mission. She also informed the Franciscans the Perpetrator’s name might be AEd@ or ASam.@ In response, the Franciscan Vicar Provincial, Br. Tom West, informed Mary in September 2007 and during a meeting in November 2007 that the Franciscans had been Aunable to find [any possible Franciscan perpetrator] of either name.@ This response led Mary falsely to believe she was the only child abused by the Perpetrator, thus creating new emotional distress, shame and self-loathing in Mary. As is all too common in many victims of childhood sexual abuse, she wondered what she had done wrong to make her the Perpetrator’s only target. Feeling horribly alone and ashamed after the meeting, Mary suffered through new injuries as a result of the Franciscans= supposed inability to identify her perpetrator: a debilitating panic attack and migraine, and repeated vomiting throughout the night after the meeting with Br. Tom.
Unbeknownst to Mary at the time, this new trauma could have been avoided. The Franciscans and Br. Tom undoubtedly had, in fact, identified a possible Franciscan Perpetrator named Sam: Br. Sam Cabot. In 2006 both Br. Tom and the Franciscan’s Provincial Minister, Fr. Jurisich, participated in multiple mediation sessions in Los Angeles involving, among others, two victims of Br. Sam. Br. Tom and Fr. Jurisich knew from their involvement in those two claims that Br. Sam had sexually abused two young girls who, like Mary, were six years old during the periods of abuse; they knew that one of Br. Sam’s favorite grooming techniques, as with Mary, was to buy his victims candy; they knew that, as with Mary, Br. Sam’s abuse consisted primarily of digital penetration; they knew Br. Sam used to abuse these two girls, as with Mary, as he sat with them under a blanket; and they knew that Br. Sam had continued to abuse both these young girls in Santa Barbara even while, as may have been the case with Mary, he was neither assigned nor living in Santa Barbara at the time. Despite his knowledge of these obvious parallels, Br. Tom denied any knowledge even of a possible Franciscan perpetrator named Sam. In fact, although during his November 2007 meeting with Mary Br. Tom acknowledged that these two young cousins had been abused by a Franciscan, he never disclosed to Mary the fact their perpetrator’s name was ASam.@ Nor did he disclose his awareness of another possible Franciscan perpetrator named AEd,@ Fr. Edward Henriques, who also spent time in Santa Barbara during the period of abuse.
This is exactly the kind of Franciscan deception that brings new torment to victims who find the courage to come forward, and results in new victims such as those of Louis Ladenburger. Clearly, seeing yet another example in the Ladenburger case of the tragedy Franciscan deception and duplicity has wrought has done nothing to change Franciscan business practices when dealing with pedophilic priests and religious brothers. The Franciscans= first and only loyalty is to their corporation and its members, pedophilic or otherwise. As a result, both adult survivors of Franciscan childhood sexual abuse and today’s children exposed to Franciscan perpetrators continue to be chewed up and spat out by the Franciscan corporate machine. And the number of past and present victims of this Franciscan corporate scheme continues to grow.
Meanwhile, at least as recently as Spring 2007 the Franciscans have allowed Br. Sam Cabot to work within half a mile of an elementary school in Los Angeles. A school that most likely is attended by numerous young girls the age of Br. Sam’s prior victims. A school, and a community, that undoubtedly has no clue that a predator such as Br. Sam is within easy walking distance of their children. A predator who would be a registered sex offender had the Franciscans first reported him to law enforcement when they learned of his crimes. A predator who undoubtedly has many more victims in addition to those identified to date.
THE COMPELLING STATE INTEREST IN PREVENTING CHILDHOOD SEXUAL ABUSE
California courts and the state legislature have recognized, repeatedly, the compelling state interested in preventing childhood sexual abuse. Fredenburg v. Fremont, 119 Cal.App.4th 408, 412-13 (2004) (discussing enactment and legislative history of Megan’s Law); Burt v. County of Orange, 120 Cal.App.4th 273, 285 (2004) (Aconcerns with protecting children from harm is a compelling interest supporting its efforts in gathering information and filing reports concerning persons suspected of child abuse@); Roe v. Superior Court, 229 Cal.App.3d 832, 838 (1991) (recognizing the state's compelling interest in protecting children from abuse); People v. Gonzalez, 81 Cal.App.3d 274, 277 (1978) (recognizing compelling state interest in the protection of children from sexual molestation); People v. Mills, 81 Cal. App.3d 171, 181 (1978) (person who sexually assaults a child has waived his right to privacy). However, for decades the Franciscans have successfully frustrated law enforcement efforts to enforce this compelling state interest, shielding Franciscan perpetrators from criminal prosecution by concealing their crimes and the whereabouts of known perpetrators. Time and again the Franciscans= efforts have helped such criminals escape prosecution through, among other methods, expired criminal statutes of limitation. As a result, very few of these men have been prosecuted, convicted, and forced to register as sex offenders. Thus, the Franciscans have successfully concealed from the public the identities of an unknown number of Franciscan perpetrators.
As evidenced by the new victims in the Ladenburger case, and the continuing pattern of deceit evidenced by the Franciscans= conduct towards Mary, the clergy-abuse crisis has not been abated by the 2006 Franciscan litigation. To the contrary, it is business as usual at Franciscan corporate headquarters. For this reason, the legal system cannot sit back and wait for current or former Franciscan perpetrators such as Ladenburger to reveal themselves through new victims. The ongoing lies, deceit, and concealment by the Franciscans mandate proactive efforts to save today’s children from new abuse like that suffered by Ladenburger’s recent victims. The public needs to know where Br. Cabot is currently working, particularly when he is less than half a mile away from an elementary school. They need to know about the abuse committed by Br. Matteo, and where he is currently assigned or in residence. They need to know about Fr. Bucher’s history of abuse, particularly where he is allowed to conduct or have access to retreats for adolescents. And they need to know about every other current or former Franciscan who, like Ladenburger until he was caught sexually abusing more children in 2007, have been accused of childhood sexual abuse but have not yet been identified.
It is an abomination that of the twenty-five (25) Franciscan perpetrators who have lived or spent significant time in Santa Barbara since 1936, only two have been criminally prosecuted locally . The sad reality is the criminal courts= hands have been tied by the Franciscans= successful efforts to conceal Franciscan criminal acts and the whereabouts of known perpetrators until the applicable statutes of limitation have expired. As a result, absent immediate action by the civil courts, today’s children will continue to be victimized by Franciscan perpetrators wherever the Franciscans of the Province of St. Barbara conduct their business, and at numerous other locations where unidentified former Franciscan perpetrators, like Ladenburger, now reside. Pursuant to the compelling state interest in preventing acts of future childhood sexual abuse, the Franciscans must be ordered to disclose immediately the identities, histories of abuse, and last known locations of all current and former Franciscans accused of childhood sexual abuse while they were members of the Order.
THE INJURY TO MARY
10.1 The sexual abuse and exploitation of Plaintiff and the circumstances under which it occurred caused Plaintiff to develop various psychological coping mechanisms which reasonably made her incapable of ascertaining the resulting damages from that conduct. Within the last 3 years, Plaintiff discovered or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse.
The Perpetrator’s use of Roman Catholic doctrine and his status as a religious brother during the period of abuse also inhibited Mary’s awareness of the wrongfulness of his conduct until recently. The assaults often took place during or after the Perpetrator read to or spoke with Mary about various biblical study materials from the parish. The Perpetrator would then tell Mary she Aneeded to do this (i.e. masturbate him), while talking to her about Jesus having given people what they needed. After most assaults he warned her not tell anyone or God would be angry with her. In doing so, the Perpetrator exploited Mary’s having been raised in the Catholic church, and induced Mary to believe she needed to agree to the conduct or risk angering God. Consequently, while sensing something was wrong, Mary was unable to appreciate the wrongfulness of the conduct until recently, within the last three years. She has always felt that she had done something wrong, and feared bringing shame to her family if anyone found out about the abuse. All of these things resulted in psychological blocking mechanisms that have prevented her from facing and realizing the wrongfulness of the Perpetrator’s conduct until recently when, out of desperation, she began to delve more deeply into what was causing her debilitating panic attacks.
11. As a direct result of the wrongful conduct alleged herein, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continue to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling.
FIRST CAUSE OF ACTION
PUBLIC NUISANCE
(Against The Defendants)
12. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
13. Defendants continue to conspire and engage in efforts to: 1) conceal from the general public the sexual assaults committed by, the identities of, and the pedophilic/ephebophilic tendencies of, the Perpetrator and Defendants= other pedophilic agents; 2) attack the credibility of the victims of the Perpetrator and Defendants= other pedophilic/ephebophilic agents; and 3) protect the Perpetrator and Defendants= other pedophilic/ephebophilic agents from criminal prosecution for their sexual assaults against children, all in violation of law.
14. The negligence and/or deception and concealment by Defendants was and is injurious to the health and/or indecent or offensive to the senses and/or an obstruction to the free use of property by the general public, including but not limited to residents of the County of Santa Barbara and all other members of the general public who live in communities around the Western United States where Defendants conducted, and continue to conduct, their business, and was and is indecent and offensive to the senses, so as to interfere with the general public’s comfortable enjoyment of life in that children cannot be left unsupervised in any location where there are agents of Defendants present as the general public cannot trust Defendants to prohibit their pedophilic agents from supervising, caring for, or having any contact with children, nor to warn parents of the presence of the current and/or former pedophilic agents of Defendants, nor to identify their current and/or former pedophilic agents, nor to disclose said agents= assignment histories, nor to disclose their patterns of conduct in grooming and sexually assaulting children, all of which create an impairment of the safety of children in the neighborhoods in Santa Barbara and throughout the Western United States where Defendants conducted, and continue to conduct, their business.
15. The negligence and/or deception and concealment by Defendants was specially injurious to Plaintiff’s health as she and her family were unaware of the danger posed to young children left unsupervised with agents of Defendants, and as a result of this deception, Plaintiff was placed in the custody and control of the Perpetrator, an agent of Defendants, who subsequently and repeatedly sexually assaulted Plaintiff.
Defendants= negligence and/or deception and concealment of the Perpetrator’s identity, and of the fact he had other victims in addition to Plaintiff, also caused Plaintiff new emotional distress and injury as Defendants= negligence and/or deception led Plaintiff to believe she was the Perpetrator’s only victim when in reality Defendants knew or should have known the Perpetrator did in fact have other victims. This false belief in turn caused Plaintiff to fear that as the Perpetrator’s only victim she had done something wrong to trigger the abuse, resulting in Plaintiff experiencing overwhelming feelings of shame and guilt, and causing new emotional distress and injury for Plaintiff. These new injuries could have been prevented by Defendants had they simply acknowledged the identity of the Perpetrator and that Plaintiff was not his only victim.
The negligence and/or deception and concealment by Defendants also was specially injurious to Plaintiff’s health in that when Plaintiff finally discovered the negligence and/or deception and concealment of Defendants, Plaintiff experienced extreme and severe mental and emotional distress that Plaintiff had been the victim of the Defendants= negligence and/or deception and concealment; that Plaintiff had not been able to help other minors being molested because of the negligence and/or deception and concealment; and that Plaintiff had not been able because of the negligence and/or deception and concealment to receive timely medical treatment needed to deal with the problems Plaintiff had suffered and continues to suffer as a result of the molestations.
16. The continuing public nuisance created by Defendants was, and continues to be, the proximate cause of the injuries and damages to the general public alleged in paragraph 14, and of Plaintiff’s special injuries and damages as alleged in paragraph 15.
17. In doing the aforementioned acts, Defendants acted negligently and/or intentionally, maliciously and with conscious disregard for Plaintiff’s rights.
18. As a result of the above described conduct, Plaintiff has suffered, and continues to
suffer special injury in that they suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
SECOND CAUSE OF ACTION
NEGLIGENCE
(Against All Defendants)
19. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
20. Sometime in approximately 1964, the Perpetrator repeatedly engaged in unpermitted, harmful and offensive sexual conduct and contact with Plaintiff. Said conduct was undertaken while the Perpetrator was an employee, volunteer, representative, or agent of Defendants, while in the course and scope of employment with Defendants, and/or was ratified by Defendants.
21. Prior to or during the abuse alleged above, Defendants knew, had reason to know,
or were otherwise on notice of unlawful sexual conduct by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents. Defendants failed to take reasonable steps and failed to implement reasonable safeguards to avoid acts of unlawful sexual conduct in the future by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, including, but not limited to, preventing or avoiding placement of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents in functions or environments in which contact with children was an inherent part of those functions or environments. Furthermore, at no time during the periods of time alleged did Defendants have in place a system or procedure to supervise and/or monitor employees, volunteers, representatives, or agents to insure that they did not molest or abuse minors in Defendants= care, including the Plaintiff.
22. Defendants had a duty to protect the minor Plaintiff when she was entrusted to their
care by Plaintiff’s parents. Plaintiff’s care, welfare, and/or physical custody was temporarily entrusted to Defendants. Defendants voluntarily accepted the entrusted care of Plaintiff. As such, Defendants owed Plaintiff, a minor child, a special duty of care, in addition to a duty of ordinary care, and owed Plaintiff the higher duty of care that adults dealing with children owe to protect them from harm.
23. Defendants, by and through their agents, servants and employees, knew or reasonably should have known of the Perpetrator’s and Defendants= other pedophilic and/or ephebophilic agents= dangerous and exploitive propensities and that they were unfit agents. It was foreseeable that if Defendants did not adequately exercise or provide the duty of care owed to children in their care, including but not limited to Plaintiff, the child entrusted to Defendants= care would be vulnerable to sexual abuse by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents.
24. Defendants breached their duty of care to the minor Plaintiff by allowing the
Perpetrator to come into contact with the minor Plaintiff without supervision; by failing to adequately hire, supervise, or retain the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents who they permitted and enabled to have access to Plaintiff; by failing to investigate or otherwise confirm or deny such facts about the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents; by failing to tell or concealing from Plaintiff, Plaintiff's parents, guardians, or law enforcement officials that the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents were or may have been sexually abusing minors; by failing to tell or concealing from Plaintiff's parents, guardians, or law enforcement officials that Plaintiff was or may have been sexually abused after Defendants knew or had reason to know that the Perpetrator may have sexually abused Plaintiff, thereby enabling Plaintiff to continue to be endangered and sexually abused, and/or creating the circumstance where Plaintiff was less likely to receive medical/mental health care and treatment, thus exacerbating the harm done to Plaintiff; and/or by holding out the Perpetrator to the Plaintiff and her parents or guardians as being in good standing and trustworthy. Defendants cloaked within the facade of normalcy Defendants= and/or the Perpetrator’s and Defendants= other pedophilic and/or ephebophilic agents= contact and/or actions with the Plaintiff and/or with other minors who were victims of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, and/or disguised the nature of the sexual abuse and contact.
25. As a result of the above described conduct, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling.
THIRD CAUSE OF ACTION
NEGLIGENT SUPERVISION/FAILURE TO WARN
(Against All Defendants)
26. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
27. Defendants had a duty to provide reasonable supervision of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, and to use reasonable care in investigating the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents. Additionally, because Defendants knew or should have known of the heightened risk the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents posed to all children, Defendants had a heightened duty to provide reasonable supervision and protection to children with whom Defendants allowed the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents to have contact and/or custody and control of; and to provide adequate warning to the Plaintiff, the Plaintiff’s family, minor students, and minor parishioners of the Perpetrator’s and Defendants= other pedophilic and/or ephebophilic agents= dangerous propensities and unfitness.
28. Defendants, by and through their agents, servants and employees, knew or reasonably should have known of the Perpetrator’s and Defendants= other pedophilic and/or ephebophilic agents= dangerous and exploitive propensities and that they were unfit agents. Defendants also knew that if they failed to provide children who had contact with the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents sufficient supervision and protection, those children would be vulnerable to sexual assaults by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents. Despite such knowledge, Defendants negligently failed to supervise the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents in the position of trust and authority as a Roman Catholic Priest, religious brother, religious instructor, counselor, school administrator, school teacher, surrogate parent, spiritual mentor, emotional mentor, and/or other authority figure, where he was able to commit the wrongful acts against the Plaintiff. Defendants failed to provide reasonable supervision of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, failed to use reasonable care in investigating the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, and failed to provide adequate warning to Plaintiff and Plaintiff’s family of the Perpetrator’s and Defendants' other pedophilic and/or ephebophilic agents' dangerous propensities and unfitness. Defendants further failed to provide Plaintiff with adequate supervision and protection, and failed to take reasonable measures to prevent future sexual abuse.
29. As a result of the above described conduct, Plaintiff has suffered, and continues to
suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
FOURTH CAUSE OF ACTION
NEGLIGENT HIRING/RETENTION
(Against All Defendants)
30. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
31. Defendants had a duty not to hire and/or retain the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents given their dangerous and exploitive propensities.
32. Defendants, by and through their agents, servants and employees, knew or reasonably should have known of the Perpetrator’s and Defendants= other pedophilic and/or ephebophilic agents= dangerous and exploitive propensities and/or that they were unfit agents.
Despite such knowledge, Defendants negligently hired and/or retained the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents in the position of trust and authority as a Roman Catholic Priest, religious brother, religious instructor, counselor, school administrator, school teacher, surrogate parent, spiritual mentor, emotional mentor, and/or other authority figure, where he was able to commit the wrongful acts against the Plaintiff. Defendants failed to use reasonable care in investigating the Perpetrator and/or Defendants= other pedophilic and/or ephebophilic agents and failed to provide adequate warning to Plaintiff and Plaintiff’s family of the Perpetrator’s and Defendants= other pedophilic and/or ephebophilic agents= dangerous propensities and unfitness. Defendants further failed to take reasonable measures to prevent future sexual abuse.
33. As a result of the above described conduct, Plaintiff has suffered, and continues to
suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
FIFTH CAUSE OF ACTION
FRAUD
(Against All Defendants)
34. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
35. Defendants knew and/or had reason to know of the sexual misconduct of the
Perpetrator and Defendants= other pedophilic and/or ephebophilic agents.
36. Defendants misrepresented, concealed or failed to disclose information relating to sexual misconduct of the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents as described herein, and Defendants continue to misrepresent, conceal, and fail to disclose information relating to sexual misconduct of the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents as described herein.
37. Defendants knew that they misrepresented, concealed or failed to disclose information relating to sexual misconduct of the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents.
38. Plaintiff justifiably relied upon Defendants for information relating to sexual misconduct of the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents.
39. Defendants, with the intent to conceal and defraud, did misrepresent, conceal or fail
to disclose information relating to the sexual misconduct of the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents.
40. As a direct result of Defendants' fraud, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
41. In addition, after Defendants misled Plaintiff to believe she was the Perpetrator’s only victim, Plaintiff suffered new emotional distress, shame and self-loathing. As is all too common in many victims of childhood sexual abuse, she wondered what she had done wrong to make her the Perpetrator’s only target. Feeling horribly alone and ashamed after the fraudulent representations, Plaintiff suffered through new injuries: a debilitating panic attack and migraine, and repeated vomiting throughout the night after the meeting with Br. Tom.
Finally, when Plaintiff discovered the fraud of Defendants, and continuing thereafter, Plaintiff experienced recurrences of the above-described injuries. In addition, when Plaintiff finally discovered the fraud of Defendants, and continuing thereafter, Plaintiff experienced extreme and severe mental and emotional distress that Plaintiff had been the victim of the Defendants= fraud; that Plaintiff had not been able to help other minors being molested because of the fraud; and that Plaintiff had not been able because of the fraud to receive timely medical treatment needed to deal with the problems Plaintiff had suffered and continues to suffer as a result of the molestations.
SIXTH CAUSE OF ACTION
FIDUCIARY/CONFIDENTIAL RELATIONSHIP FRAUD
AND CONSPIRACY TO COMMIT FRAUD
(Against All Defendants)
42. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
43. Because of Plaintiff’s young age, and because of the status of the Perpetrator as an authority figure to Plaintiff, Plaintiff was vulnerable to the Perpetrator. The Perpetrator sought Plaintiff out, and was empowered by and accepted Plaintiff’s vulnerability. Plaintiff’s vulnerability also prevented Plaintiff from effectively protecting herself.
44. By holding the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents out as a qualified Roman Catholic clergy, religious brother, religious instructor, counselor, school administrator, school teacher, surrogate parent, spiritual mentor, emotional mentor, and/or other authority figure, and by undertaking the religious and/or secular instruction and spiritual and emotional counseling of Plaintiff, Defendants held special positions of trust and entered into a fiduciary and/or confidential relationship with the minor Plaintiff.
45. Having a fiduciary and/or confidential relationship, Defendants had the duty to obtain and disclose information relating to sexual misconduct of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents.
46. Defendants misrepresented, concealed or failed to disclose information relating to sexual misconduct of the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents, and Defendants continued to misrepresent, conceal, and/or fail to disclose information relating to sexual misconduct of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents as described herein.
47. Defendants knew that they misrepresented, concealed or failed to disclose information relating to sexual misconduct of the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents.
48. Plaintiff justifiably relied upon Defendants for information relating to sexual misconduct of the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents.
49. Defendants, in concert with each other and with the intent to conceal and defraud, conspired and came to a meeting of the minds whereby they would misrepresent, conceal or fail to disclose information relating to the sexual misconduct of the Perpetrator and/or Defendants' other pedophilic and/or ephebophilic agents.
50. By so concealing, Defendants committed at least one act in furtherance of the conspiracy.
51. As a direct result of Defendants' fraud and conspiracy, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
52. In addition, after Defendants misled Plaintiff to believe she was the Perpetrator’s only victim, Plaintiff suffered new emotional distress, shame and self-loathing. As is all too common in many victims of childhood sexual abuse, she wondered what she had done wrong to make her the Perpetrator’s only target. Feeling horribly alone and ashamed after the fraudulent representations, Plaintiff suffered through new injuries: a debilitating panic attack and migraine, and repeated vomiting throughout the night after the meeting with Br. Tom.
Finally, when Plaintiff discovered the fraud of Defendants, and continuing thereafter, Plaintiff experienced recurrences of the above-described injuries. In addition, when Plaintiff finally discovered the fraud of Defendants, and continuing thereafter, Plaintiff experienced extreme and severe mental and emotional distress that Plaintiff had been the victim of the Defendants= fraud; that Plaintiff had not been able to help other minors being molested because of the fraud; and that Plaintiff had not been able because of the fraud to receive timely medical treatment needed to deal with the problems Plaintiff had suffered and continues to suffer as a result of the molestations.
SEVENTH CAUSE OF ACTION
BREACH OF FIDUCIARY DUTY AND/OR CONFIDENTIAL RELATIONSHIP
(Against All Defendants)
53. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
54. Because of Plaintiff’s young age, and because of the status of the Perpetrator as an
authority figure to Plaintiff, Plaintiff was vulnerable to the Perpetrator. The Perpetrator sought Plaintiff out, and was empowered by and accepted Plaintiff’s vulnerability. Plaintiff’s vulnerability also prevented Plaintiff from effectively protecting herself.
55. By holding the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents out as a qualified Roman Catholic clergy, religious, religious instructor, counselor, school administrator, school teacher, surrogate parent, spiritual mentor, emotional mentor, and/or any other authority figure, by allowing the Perpetrator to have custody and control of and/or contact with the Plaintiff, and by undertaking the religious and/or secular instruction and spiritual and/or emotional counseling of Plaintiff, Defendants entered into a fiduciary and/or confidential relationship with the minor Plaintiff.
56. Defendants and each of them breached their fiduciary duty to Plaintiff by engaging in the negligent and wrongful conduct described herein.
57. As a direct result of Defendants' breach of their fiduciary duty, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
EIGHTH CAUSE OF ACTION
NEGLIGENT FAILURE TO WARN, TRAIN, OR EDUCATE PLAINTIFF
(Against All Defendants)
58. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
59. Defendants breached their duty to take reasonable protective measures to protect Plaintiff and other minor parishioners and/or students from the risk of childhood sexual abuse by the Perpetrator and/or Defendants= other pedophilic and/or ephebophilic agents, such as the failure to properly warn, train, or educate Plaintiff, her parents, Defendants= agents, employees and volunteers, and other minor parishioners and/or students about how to avoid such a risk and/or defend himself or herself if necessary, pursuant to Juarez v. Boy Scouts of America, Inc., 97 Cal.Rptr.2d 12, 81 Cal.App.4th 377 (2000).
Defendants knew, or in the exercise of reasonable diligence should have known, of the general risk of sexual assaults against children and, specifically, of the Perpetrator’s and Defendants= other pedophilic and/or ephebophilic agents= propensities to commit, and history of committing, sexual abuse of children, and that an undue risk to children in their custody and care, such as Plaintiff, would exist because of this propensity to commit sexual assaults, and the history of sexual assaults against children, unless Defendants adequately taught, educated, secured, oversaw, and maintained students, including Plaintiff, as well as other children in the custody and control of, or in contact with, Catholic clergy and Defendants= other pedophilic and ephebophilic agents.
Defendants were put on actual and/or constructive notice, at least as early as 1964, that the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents were sexually assaulting children at countless locations, including Santa Barbara County. From that date forward, Defendants repeatedly and negligently ignored complaints from victims and/or their parents, as well as warnings from Catholic clergy, that pedophilic and/or ephebophilic Catholic clergy were assaulting children in, among other locations, Santa Barbara County.
Defendants also knew or should have known that the general risk of sexual assaults against children and, specifically, the risk posed by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents= propensities to commit, and history of committing, sexual abuse of children, could be eliminated, or at least minimized, if they took steps to educate, warn and train children in Defendants= custody and control, as well as those children’s parents, and Defendants= employees, agents and volunteers, regarding the danger posed by pedophilic and ephebophilic clergy, how to recognize and avoid this danger, and how a child should defend herself or himself when assaulted by pedophilic and/or ephebophilic clergy. Based on their knowledge of the risk posed by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, and the history of sexual assaults around Santa Barbara since at least 1936, Defendants had a duty to take the aforementioned steps.
Notwithstanding the knowledge of the general risk of sexual assaults against children and, specifically, that the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents had such propensities to commit, and had committed, sexual abuse of children, and notwithstanding that Defendants knew it was not only reasonably foreseeable but likely that the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents would sexually assault children, Defendants breached their duty to adequately teach, educate, secure, oversee, and maintain students, including Plaintiff, as well as all other children in the custody and control of, or in contact with, Catholic clergy, and breached their duty to educate, warn and train children in Defendants= custody and control, as well as those children’s parents and Defendants= employees, agents and volunteers, regarding the danger to children posed by pedophilic and/or ephebophilic clergy, how to recognize and avoid this danger, and how a child should defend himself or herself when assaulted by pedophilic and/or ephebophilic clergy.
Defendants knew or should have known that their failure to exercise reasonable care, as discussed above, would cause Plaintiff severe emotional distress and physical injury. Because of the foreseeability and likelihood of sexual assaults by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents against Plaintiff and other children, Defendants breached their duty of care to Plaintiff and other children in their custody and control.
The failure of Defendants to educate, warn and train children in Defendants= custody and control, as well as those children’s parents and Defendants= employees, agents and volunteers, regarding the danger to children posed by pedophilic and/or ephebophilic clergy, how to recognize and avoid this danger, and how a child should defend himself or herself when assaulted by pedophilic and ephebophilic clergy, was the proximate cause of Plaintiff’s injuries as alleged herein.
60. As a result of the above described conduct, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
NINTH CAUSE OF ACTION
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(Against all Defendants)
61. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
62. Defendants' conduct was extreme and outrageous and was intentional or done recklessly. Defendants knew or should have known the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents were spending time in the company of and assaulting numerous children, including Plaintiff, around Santa Barbara and other locations, including on school grounds, in the parishes, and in the Perpetrators= rectory rooms. Defendants also knew or should have known the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents were high risks to all children as Defendants had received numerous complaints and other notice of prior acts of childhood sexual abuse by the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents, and had sent the Perpetrator and/or Defendants' other pedophilic and/or ephebophilic agents for treatment for their pedophilia, prior to and/or after assigning them to work in Santa Barbara.
Given their knowledge of numerous prior acts of abuse by the Perpetrator and Defendants' other pedophilic and/or ephebophilic agents, Defendants knew or should have known that every child exposed to the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, including Plaintiff, was substantially certain to be assaulted by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents.
Defendants knew or should have known, and had the opportunity to learn of, the intentional and malicious conduct of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, and thereby ratified and joined in said conduct by failing to terminate, discharge, or at least discipline the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, and/or by failing to prevent them from having contact with children. The conduct of Defendants in confirming, concealing and ratifying that conduct was done with knowledge that Plaintiff’s emotional and physical distress would thereby increase, and was done with a wanton and reckless disregard of the consequences to Plaintiff and other children in their custody and control.
63. As a result of Defendants= conduct, Plaintiff experienced and continues to experience severe emotional distress resulting in bodily harm. As a result of the statements made to Plaintiff by Defendants regarding their supposed inability to identify a possible Perpetrator named AEd@ or ASam,@ Plaintiff has suffered new emotional distress and injury.
64. As a result of the above described conduct, Plaintiff has suffered, and continues to
suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
In addition, when Plaintiff discovered the recent intentional betrayal and lies of Defendants, and continuing thereafter, Plaintiff experienced recurrences of the above-described injuries. In addition, when Plaintiff finally discovered the recent intentional betrayal and lies of Defendants, and continuing thereafter, Plaintiff experienced extreme and severe mental and emotional distress that Plaintiff had been the victim of the Defendants= intentional betrayal and lies; that Plaintiff had not been able to help other minors being molested because of the intentional betrayal and lies; and that Plaintiff had not been able because of the intentional misrepresentations and failure to disclose to receive timely medical treatment needed to deal with the problems Plaintiff had suffered and continues to suffer as a result of the molestations.
TENTH CAUSE OF ACTION
(NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS)
(Against All Defendants)
65. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
66. Defendants knew or should have known that their failure to exercise reasonable care in the selection, approval, employment and supervision of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents would cause Plaintiff severe emotional distress. Because of the foreseeability of sexual assaults by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents against Plaintiff and other children, Defendants breached their duty of care in engaging in the conduct referred to in the preceding paragraphs.
67. Defendants knew or should have known that their failure to exercise reasonable care in providing adequate supervision to Plaintiff and other children in their custody and control, despite the fact they knew or should have known of the threat to children posed by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, would cause Plaintiff severe emotional distress. Defendants also knew or should have known that their failure to disclose information relating to sexual misconduct of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents as described herein would cause Plaintiff severe emotional distress and subject her to further assaults. Because of the foreseeability of sexual assaults by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents against Plaintiff and other children, Defendants breached their duty to exercise reasonable care in failing to provide adequate supervision to Plaintiff and other children in their custody and control, and in failing to disclose information to Plaintiff, her family, and the general public relating to sexual misconduct of the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents.
68. Finally, Defendants knew or should have known that their creation and continuance of the Public Nuisance set forth in the preceding paragraphs would cause Plaintiff severe emotional distress. Because of the foreseeability of sexual assaults by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents against Plaintiff and other children as a result of this conduct, and because of the foreseeability of the new injuries their recent misrepresentations would cause Plaintiff, Defendants breached their duty of care in creating and continuing the Public Nuisance referred to in the preceding paragraphs.
69. Plaintiff experienced and continues to experience severe emotional distress resulting in bodily harm. As a result of the negligent misrepresentations told Plaintiff by Defendants regarding their supposed inability to identify a possible Perpetrator named AEd@ or ASam,@ Plaintiff has suffered new emotional distress and injury.
70. As a result of the above described conduct, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
In addition, when Plaintiff discovered the recent negligent misrepresentations of Defendants, and continuing thereafter, Plaintiff experienced recurrences of the above-described injuries. In addition, when Plaintiff finally discovered the recent negligent misrepresentations of Defendants, and continuing thereafter, Plaintiff experienced extreme and severe mental and emotional distress that Plaintiff had been the victim of the Defendants= negligent misrepresentations; that Plaintiff had not been able to help other minors being molested because of the negligent misrepresentations; and that Plaintiff had not been able because of the negligent misrepresentations and failure to disclose to receive timely medical treatment needed to deal with the problems Plaintiff had suffered and continues to suffer as a result of the molestations.
ELEVENTH CAUSE OF ACTION
VIOLATION OF PENAL CODE ' 11166
(Against All Defendants)
71. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
72. Under the Child Abuse and Neglect Reporting Act, Defendants, by and through their
employees and agents, were "child care custodians" and were "clergy members" under a statutory duty to report known or suspected incidences of sexual molestation or abuse of minors to a child protective agency, pursuant to California Penal Code ' 11164.
73. Defendants knew, or should have known in the exercise of reasonable diligence, that the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents had sexually molested, abused, or caused touching, battery, harm and other injuries to Plaintiff, who was a minor, and to other minors, giving rise to a duty to report such conduct under ' 11166 of the California Penal Code.
74. By failing to report the continuing molestations known by Defendants, and each of them, and by ignoring the fulfillment of the mandated compliance with the reporting requirements provided under California Penal Code ' 11166, Defendants created the risk and danger contemplated by the Child Abuse and Neglect Reporting Act, and as a result, unreasonably and wrongfully exposed Plaintiff and other minors to the molestation as alleged herein, thereby breaching Defendants= duty of care to Plaintiff.
75. Plaintiff was of the class of persons for whose protection California Penal Code 11166 was specifically adopted to protect.
76. Had Defendants adequately performed their duties under ' 11166 of the California Penal Code, and reported the molestation of Plaintiff and other minors, the report would have resulted in the involvement of trained child sexual abuse case workers for the purposes of preventing harm and further harm to Plaintiff and other minors, and preventing and/or treating the injuries and damages suffered by Plaintiff as alleged herein.
77. As a proximate result of Defendants= failure to follow the mandatory reporting requirements of California Penal Code ' 11166, the Defendants wrongfully denied and restricted Plaintiff and other minors from the protection of child protection agencies which would have changed the then-existing arrangements and conditions, which provided the access and opportunities for the molestation of Plaintiff.
78. The physical, mental, and emotional damages and injuries resulting from the sexual molestation of Plaintiff alleged herein, were the types of occurrences and injuries the Child Abuse and Neglect Reporting Act was designed to prevent.
79. Defendants continue to violate these statutory sections because of their continued
failure to report the abuse known to them.
80. As a result of the above described conduct, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
TWELFTH CAUSE OF ACTION
UNFAIR COMPETITION - VIOLATION OF BUSINESS & PROFESSIONS CODE ' 17200
(Against all Defendants)
81. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
82. At all times herein mentioned, Defendants conspired and engaged in unlawful, unfair or fraudulent business acts, within the meaning of Business & Professions Code ' 17200.
83. At all times herein mentioned, Defendants were and are engaged in nonprofit business activities, including but not limited to: providing public service which the Catholic Church refers to as its Aministry@; operating hospitals, schools, universities, orphanages, or other institutions; providing religious, psychological, emotional and social counseling; conducting various charitable activities and providing services whether or not within the scope of 26 U.S.C. ' 501(c)(3); and soliciting charitable donations.
84. At all times herein mentioned, Defendants have as a significant source of revenue
the receipt of charitable donations from persons who worship or associate themselves with the Catholic Church.
85. At all times herein mentioned, Defendants conducted and continue through the present to conduct their respective business affairs as set forth in Paragraphs 82 through 84 in such a manner as to willfully and negligently: foster an environment conducive to predatory pedophilic and ephebophilic behavior; conceal from the general public the sexual assaults committed by, the identities of, and the pedophilic and ephebophilic tendencies of, Catholic clergy; protect the pedophilic and ephebophilic clergy from civil and criminal prosecution; respond to allegations of sexual misconduct against the Catholic clergy with blanket denials and/or the creation of entities controlled by the Church hierarchy that are misrepresented as taking appropriate action but instead perpetuate the concealment of sexual misconduct; represent to the Catholic laity and the general public that appropriate action is being taken by the Church concerning allegations of sexual misconduct and child molestation when in fact it is engaging in concealment and suppression of the truth; place predatory clergy into communities with children without any warning to those communities.
86. The activities described in Paragraph 85 violate various civil and criminal laws of
California and of the United States;
87. The activities described in Paragraph 85 violate various civil and criminal laws of
California and of the United States, including the duty to report incidents of childhood sexual abuse as required by Penal Code ' 11166, as set forth above in the Ninth Cause of Action;
88. The activities described in Paragraph 85 offend public policy; are immoral, unethical,
oppressive, and unscrupulous; are substantially injurious to persons who utilize the services described in Paragraph 85; and are undertaken without any valid reason, justification or motive.
89. Defendants all conducted their business activities in such a way that members of the public are likely to be deceived regarding those business activities.
90. As a result of the acts of unfair competition by Defendants, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling.
91. As a further result of the acts of unfair competition by Defendants, Plaintiff further request injunctive relief, prohibiting Defendants from, among other things: allowing their pedophilic/ephebophilic agents to have any contact with children; transferring their pedophilic/ephebophilic agents to new communities whose citizens are unaware of the risk to children posed by said agents; failing/refusing to warn and/or concealing from the general public when Defendants have transferred a pedophilic/ephebophilic agent into their midst; concealing from law enforcement and the general public the identities of their pedophilic/ephebophilic agents; and/or concealing from the public complaints or any other source of information indicating Defendants= agents= pedophilic/ephebophilic tendencies. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
THIRTEENTH CAUSE OF ACTION
FRAUD AND DECEIT
(Against All Defendants)
92. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
93. The Perpetrator and Defendants= other pedophilic and/or ephebophilic agents held himself out to Plaintiff as a Roman Catholic Priest, religious brother, religious instructor, counselor, school administrator, school teacher, surrogate parent, spiritual mentor, emotional mentor, and/or other authority figure. The Perpetrator and Defendants= other pedophilic and/or ephebophilic agents represented to Plaintiff and Plaintiff’s parents that he would counsel and guide Plaintiff with her educational, spiritual, and/or emotional needs.
94. These representations were made by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents with the intent and for the purpose of inducing Plaintiff and Plaintiff’s parents to entrust the educational, spiritual and physical well being of Plaintiff with the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents.
95. The Perpetrator and Defendants= other pedophilic and/or ephebophilic agents misrepresented, concealed or failed to disclose information relating to his true intentions to Plaintiff and Plaintiff’s parents when they entrusted Plaintiff to his care, which were to sexually molest and abuse Plaintiff. Plaintiff justifiably relied upon the Perpetrator’s and Defendants= other pedophilic and/or ephebophilic agents= representations.
96. The Perpetrator and Defendants= other pedophilic and/or ephebophilic agents were employees, agents, and/or representatives of Defendants. At the time he fraudulently induced Plaintiff and Plaintiff’s parents to entrust the care and physical welfare of Plaintiff to the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents were acting within the course and scope of their employment with Defendants.
97. Defendants are vicariously liable for the fraud and deceit of the Perpetrator and Defendants= other agents.
98. As a result of the above described conduct, Plaintiff has suffered, and continues to
suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
99. In addition, when Plaintiff finally discovered the fraud of Defendants, and continuing thereafter, Plaintiff experienced recurrences of the above-described injuries. In addition, when Plaintiff finally discovered the fraud of Defendants, and continuing thereafter, Plaintiff experienced extreme and severe mental and emotional distress that Plaintiff had been the victim of the Defendants= fraud; that Plaintiff had not been able to help other minors being molested because of the fraud; and that Plaintiff had not been able because of the fraud to receive timely medical treatment needed to deal with the problems Plaintiff had suffered and continues to suffer as a result of the molestations.
FOURTEENTH CAUSE OF ACTION
PREMISES LIABILITY
(Against All Defendants)
100. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
101. At all times herein mentioned, Defendants were in possession of the property where the Plaintiff was groomed and assaulted by the Perpetrator, and had the right to manage, use and control that property.
102. At all times herein mentioned, Defendants knew that the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents had a history of committing sexual assaults against children, and that any child at, among other locations in Santa Barbara, the Mission and St. Anthony’s, was at risk to be sexually assaulted by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents.103. Defendants knew or should have known that the Mission and St. Anthony’s had a history of grooming of and/or sexual assaults against children committed by the Perpetrator and/or Defendants= other pedophilic and/or ephebophilic agents and that any child at, among other locations in Santa Barbara, the Mission and St. Anthony’s, was at risk to be sexually assaulted. It was foreseeable to Defendants that the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents would sexually assault children if they continued to allow the Perpetrator and/or Defendants= other pedophilic and/or ephebophilic agents to teach, supervise, instruct, care for, and have custody and control of and/or contact with children.
104. At all times herein mentioned, Defendants knew or should have known the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents were repeatedly committing sexual assaults against children.
105. It was foreseeable to Defendants that the sexual assaults being committed by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents would continue if Defendants continued to allow the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents to teach, supervise, instruct, care for, and have custody of and/or contact with young children.
106. Because it was foreseeable that the sexual assaults being committed by the
Perpetrator and Defendants= other pedophilic and/or ephebophilic agents would continue if Defendants continued to allow them to teach, supervise, instruct, care for, and have custody of and/or contact with young children, Defendants owed a duty of care to all children, including Plaintiff, exposed to the Perpetrator and/or Defendants= other pedophilic and/or ephebophilic agents. Defendants also owed a heightened duty of care to all children, including Plaintiff, because of their young age.
107. By allowing the Perpetrator and/or Defendants= other pedophilic and/or ephebophilic agents to teach, supervise, instruct, care for, and have custody of and/or contact with young children, and by failing to warn children and their families of the threat posed by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents, Defendants breached their duty of care to all children, including Plaintiff.
108. Defendants negligently used and managed the Mission and St. Anthony’s, and created a dangerous condition and an unreasonable risk of harm to children by allowing the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents to teach, supervise, instruct, care for and have custody of and/or contact with young children at, among other locations, the Mission and St. Anthony’s.
109. As a result of the dangerous conditions created by Defendants, numerous children were sexually assaulted by the Perpetrator and Defendants= other pedophilic and/or ephebophilic agents.
110. The dangerous conditions created by Defendants were the proximate cause of Plaintiff’s injuries and damages.
111. As a result of these dangerous conditions, Plaintiff has suffered, and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling. As a proximate result of these injuries, Plaintiff has suffered general and special damages in an amount in excess of the jurisdictional minimum of this Court.
FIFTEENTH CAUSE OF ACTION
PROCURING OR MAKING A CHILD AVAILABLE TO ANOTHER
(Against All Defendants)
112. Plaintiff incorporates all paragraphs of this First Amended Complaint as if fully set forth herein.
113. Plaintiff, at the time of the abuse by the Perpetrator alleged herein, was approximately 6 years old.
114. Defendants, by and through their agents, servants and employees, were aware that their employees and member priests, pastors, and residents at St. Anthony’s and the Old Mission were cognizant of the special needs of the vulnerable, needy, and impressionable children entrusted to their care. Defendants knew, or should have known, that the children could be easily influenced and trusting of those adults in whose care they had been placed, and were vulnerable to the suggestions and desires of those in whose care they have been placed.
115. Plaintiff is informed and believes, and on that basis alleges that Defendants, at all relevant times, were responsible for providing traditional church and religious activities, including but not limited to emotional growth and spiritual guidance, and were responsible for the supervision of Plaintiff in her daily activities.
116. Defendants created and fostered an environment and culture in which the Perpetrator, as a Franciscan brother, would occupy a special position of complete trust and confidence. At the heart of this environment and culture created by Defendants was the Perpetrator’s liberty to exercise authority and control with regard to children of the parish. Defendants encouraged, caused, induced, and persuaded the parishioners, including Plaintiff, to develop a close, trusting, and special relationship with the Perpetrator, and to engage in individual and confidential counseling with the Perpetrator. Moreover, Defendants encouraged, caused, induced, and persuaded the parishioners to partake in activities with the Perpetrator. This intentional conduct of Defendants and their wilful failure to report the Perpetrator’s sexual misconduct to the appropriate law enforcement authorities or any violations pertaining to the abuse and/or mistreatment of the children in their care and custody, violates child abuse reporting statutes. As such, Defendants= intentional conduct also constitutes negligence per se.
117. Defendants were aware that the Perpetrator would have extensive and unsupervised contact with children, including Plaintiff.
118. Plaintiff is informed and believes, and on that basis alleges that Defendants were aware of the extremely high recidivism rate of individuals who had previously committed childhood sexual abuse, and that deviant pedophilic and ephebophilic tendencies could not be Acured.@ As a result, Defendants knew that it was a virtual certainty that if the Perpetrator was allowed continued access to children, the Perpetrator would engage in further acts of childhood sexual abuse.
119. Plaintiff alleges that Defendants knew or in the exercise of reasonable diligence should have known that the Perpetrator, as he befriended and supervised the young parishioners, Santa Barbara Girl’s Club members, and other children, would invite the children into various locations at the Old Mission and St. Anthony’s Seminary, including but not limited to the room where the parish organ was located, as well as the living quarters of the Perpetrator and/or other Franciscans.
120. Defendants, by and through their agents, servants and employees, knew that the Perpetrator was committing lewd and lascivious acts with children at these and other locations around Santa Barbara, yet Defendants continued to provide the Perpetrator with a new supply of child victims by facilitating, encouraging, causing, inducing and persuading them to spend time with the Perpetrator, including in the instance of Plaintiff by repeatedly observing and allowing to continue the Perpetrator’s pedophilic peep-style show exploitation of Plaintiff on the grounds of St. Anthony’s and/or the Old Mission. Defendants encouraged the growth of a cult of personality around the Perpetrator by encouraging, causing, inducing, and persuading children to associate with the Perpetrator through his affiliations with local organizations such as the Santa Barbara Girl’s Club, to seek personal and academic counseling and guidance from the Perpetrator, and to spend time with the Perpetrator socially.
121. Furthermore, Defendants, by and through their agents, servants and employees, knew or had reason to know or were otherwise on notice of the unlawful sexual conduct of the Perpetrator and/or his propensity for such conduct. Nonetheless, Defendants encouraged, caused, induced and persuaded children to have contact with the Perpetrator and to be in an unsupervised environment with the Perpetrator on a regular basis in or around 1964. Because this intentional conduct of supplying the Perpetrator with a supply of victims is in violation of California Penal Code ' 266(j), it also constitutes negligence per se.
122. As a result of the above described conduct, Plaintiff has suffered, and will continue to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and will continue to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling.
WHEREFORE, Plaintiff prays for damages; injunctive relief; attorney’s fees; statutory/civil penalties according to law; and such other relief as the court deems appropriate and just.
JURY DEMAND
Plaintiff demands a jury trial on all issues so triable.
DATE: September 22, 2008
NYE, PEABODY, STIRLING & HALE, LLP
By:
DAVID L. NYE
TIMOTHY C. HALE
