High Court Will Decide Whether Sex-Abuse Case Can Proceed
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By Laura Ernde SAN FRANCISCO - When they signed up for the Los Angeles Police Department's Explorer Scout program back in the 1970s, the teenage boys just wanted to learn what it was like to work in law enforcement. But three of the ex-scouts - now adults in their 40s - claim that Officer David J. Kalish took advantage of their trust by sexually molesting them. Invoking a state law that created a one-year revival period for old sexual abuse claims in the wake of the clergy abuse scandal, the men sued Kalish, along with the city and the Boy Scouts, in 2003. So far, the men have been stymied in their efforts to hold the city and the scouts responsible. What could be the plaintiffs' last hope rests with the California Supreme Court, which will hear all oral arguments Wednesday in San Francisco. Doe v. City of Los Angeles, et al., S142546. The high court is expected to clarify what the legislature meant when it said that third-party defendants are only liable if they "knew, had reason to know or were other-wise on notice" that abuse had occurred. The court will also wrestle with the question of how much evidence sexual abuse plaintiffs need to get to the discovery stage. Whatever the court decides will affect the outcome of hundreds of pending sex abuse cases, plaintiffs attorneys said. "The case is incredibly important because it gives the Supreme Court a chance to broaden the rights of victims of abuse," said attorney David M. Ring of Los Angeles, who represents the ex-scouts. The court has consolidated the appeals of two of the plaintiffs. One is a truck driver who lives in the San Francisco Bay Area and the other is a salesman in Southern California. The third plaintiff's claims, along with the claims against Kalish himself, are on hold pending the Supreme Court's decision. "These guys have struggled all through their life," Ring said. "When the California legislature opened the doors in 2003 for these lawsuits to be brought, these young men were able to finally have their day in court." By the time the scandal broke, Kalish had risen to the rank of deputy chief, making him the highest-ranking openly gay officer in the department. He has since retired and has consistently denied the charges. Los Angeles Superior Court Judge Robert L. Hess threw out the claims against the city and the scouts at the demurrer stage in 2004, saying they did not qualify for revival. The 2nd District Court of Appeal agreed. The unanimous panel said there was no evidence that the city knew or should have known about the alleged molestation. The victims argued that there was a number of red flags that something was amiss with the Explorer program. Kalish and other officers gave alcohol to their teenage charges and may have even recruited them to do household chores, the plaintiffs alleged. Kalish also allegedly favored certain scouts and socialized with them outside of program events. Officers also knew that Kalish traveled to Thailand, a "known haven for pedophiles," and was seen there in the company of a young boy. But the appellate courts said that wasn't enough to meet the legislature's requirement that the city "knew, had reason to know or was otherwise on notice." "Appellants may not merely allege that respondents knew facts that raised a generalized prospect or possibility of sexual abuse by Kalish," said Justice Daniel Curry, who has since retired. "Rather, appellants were obliged to allege in specific terms that respondents knew facts that - if acted upon in a reasonable manner - would have prompted them to investigate Kalish with a thoroughness likely to establish that he had engaged in unlawful sexual abuse." Devin M. Storey, one of two attorneys at Zalkin & Zimmer in San Diego who will argue the case for the plaintiffs Wednesday, said Kalish's employers would have done more. "We argue they had a duty to inquire," he said. But the Boy Scouts maintain that unless they were covering up actual knowledge of sexual misconduct, they should not be held liable for something that happened so long ago. "The legislative history shows the legislature intended to revive only a limited subset of such time-barred claims, against non-perpetrators who were 'highly culpable' because they knew of abuse and took no action, thereby enabling the predator to molest again," Christina J. Imre of Sedgwick, Moran & Arnold in Los Angeles wrote in her brief on behalf of the Boy Scouts. The other issue in the case is whether the victims are required to prove in their complaint that the defendants had notice of the alleged molestation, or whether that proof can come after discovery. "It seems bizarre that you would have to allege facts you don't possess," Storey said. The other side argues that the men need to have solid facts before they can breathe new life into very old allegations. "A plaintiff cannot sue on a 'bad egg' theory and then use discovery to find out if he has a claim," wrote attorney Lee W. Potts of Hennigan, Bennett & Dorman, who represents the Roman Catholic Archdiocese of Los Angeles. The Catholic Church has a stake in the outcome of the case. The church has settled most of the sex abuse cases against its priests, but there are still hundreds of cases pending against the San Diego Archdiocese, which has filed for bankruptcy. A recent California Supreme Court decision appears to make it more difficult for the plaintiffs to make their case. In Shirk v. Vista Unified School District, S133687, the high court limited revival claims against public entities. The court said that before plaintiffs can sue, they must first file a claim under the Tort Claim Act. The Los Angeles City Attorney Office has not made that argument in its briefs in the Doe case, plaintiffs attorneys said. The Los Angeles City Attorney's Office did not return calls seeking comment. |
