APPEAL from a judgment of the Superior Court of Fresno County. Donald Black, Judge. Affirmed. (Fresno County Super. Ct. No. 03CECG04480)
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PUBLICATION
George Santillan and his brother Howard Santillan sued the Roman Catholic Bishop of Fresno for childhood sexual abuse by one of the diocese's former priests. A jury found that their claims were time barred because there was no evidence that the diocese knew that the priest was committing such acts either before or during the time when the Santillans were being abused. The trial court granted a new trial as to Howard based on newly discovered evidence of another person who had reported that the same priest was abusing him during the period when Howard was being molested. The trial court denied the new trial motion as to George because the new witness's report occurred after the abuse of George had stopped, and entered judgment for the diocese against George.
George appeals from the judgment, contending that the jury was improperly instructed and that certain evidence was wrongly excluded. He also contends the trial court erred by denying his new trial motion. The diocese cross-appeals from the order granting a new trial for Howard. We affirm the judgment and both new trial orders.
FACTS AND PROCEDURAL HISTORY
1. Procedural Background and Issues on Appeal
Brothers George and Howard Santillan*fn1 were molested by Anthony Herdegen, the parish priest in their hometown of Wasco. George was abused from the time he was 10 years old in 1959 until sometime in late 1965. Howard was abused from the time he turned six in 1960 until sometime in 1973. The abuse progressed from groping and fondling to sessions of full-body oil rubs and mutual masturbation in Herdegen's living quarters in the parish rectory.
The Wasco parish was operated by, and under the jurisdiction of, the Roman Catholic Bishop of Fresno, a corporation sole (the Diocese). The Diocese was run by its only shareholder - whatever individual happened to be the bishop at any particular time. The Santillans sued the Diocese in 2003 during the one-year revival period of previously time-barred childhood sex abuse claims. (Code Civ. Proc., § 340.1, subds. (b)(2), (c).)*fn2
There is no dispute that Herdegen sexually abused the Santillans when they were boys attending the Wasco parish school. The Santillans concede that they never told anyone about the abuse until many years later, long after the statute of limitations in effect at that time had expired. Claims such as theirs against churches and other entities were revived for the calendar year 2003, but in order to qualify for that revival window, the Santillans had to show that the Diocese knew or had reason to know that Herdegen had engaged in unlawful sexual conduct before or during the time when he abused them. (§ 340.1, subds. (b)(2), (c).)
In Santillan v. Roman Catholic Bishop of Fresno (2008) 163 Cal.App.4th 4 (Santillan I), we reversed the trial court's grant of summary judgment for the Diocese on that issue. At the time, the Santillans relied solely on circumstantial evidence that Barbara Zeilman, the elderly part-time parish housekeeper for Herdegen, knew what was going on behind the closed doors of Herdegen's living quarters, and failed to fulfill her employment duty to report that information to the Diocese.
We first held that evidence of Zeilman's tearful apologetic response when asked years later by the Santillans' mother why she never reported Herdegen's conduct was circumstantial evidence that Zeilman knew about the abuse when it took place. We also held that the deposition testimony of former Cardinal Roger Mahony, who served in several high-level administrative positions at the Diocese from 1962 to 1980, raised triable issues of fact whether Zeilman, who had since died, had an employment-based duty to report what she knew. If so, then her knowledge would be imputed to the Diocese for purposes of the statute of limitation's notice requirement. (Santillan I, supra, 163 Cal.App.4th at pp. 11-12.)
On remand, the case went to trial. All issues of liability, including the statute of limitations, were tried to the jury. The jury returned a special verdict that found Herdegen had committed an act of unlawful sexual conduct against both Howard and George. However, in response to the next question on the special verdict form, the jury found that the Diocese did not know or have reason to know that Herdegen had committed an act of unlawful sexual conduct before the last act of such conduct against either George or Howard occurred. In other words, the jury found that the Diocese did not have notice of Herdegen's misconduct until after he had stopped molesting the Santillans. Because this resolved the statute of limitations issue in the Diocese's favor, the jury was instructed not to answer further questions regarding the statute of limitations or liability, and the trial court entered judgment for the Diocese.
While the jury was deliberating, however, George's lawyer received a phone call from a man who said he had been an altar boy at the Wasco parish in the mid-1960's, that he too had been inappropriately touched by Herdegen, and that his mother reported this to the principal of the parish school that he attended. Instead of doing anything about the report, however, the boy was expelled from the school soon after, he claimed. Despite extensive discovery by the Santillans, including requests for information concerning any reports of sexual misconduct by Herdegen, the report of this incident was not disclosed.
Based on this, the Santillans brought a motion for a new trial on the ground of newly discovered evidence. The trial court granted the motion as to Howard, because the new witness said he reported the incident to the parish school in 1967, at a time when Howard was still being molested by Herdegen. However, because Herdegen stopped molesting George in late 1965, the trial court found that the evidence did not provide the Diocese timely notice during the period when George was being abused, and denied the new trial motion as to George.
George appeals, contending the trial court erred by instructing the jury that when determining the statute of limitations notice issue, it could not rely on innocuous or ambiguous conduct by Herdegen, standing alone, as evidence of notice. He also contends that: the trial court erred when it answered a jury question by limiting the jury's consideration of conduct to events that occurred before the last act of sexual abuse; the trial court erred by excluding evidence to impeach Mahony; and that the trial court should have granted him a new trial as well. The Diocese cross-appeals, contending a new trial was not warranted for Howard because he did not act with diligence in his efforts either to discover the new witness or in alerting the court after he finally did so, and that the new evidence was not sufficiently material to justify the grant of a new trial.
2. Facts Concerning the Statute of Limitations
A. Conduct at the Seminary
In the late 1940's and early 1950's, Herdegen was an instructor at the Ryan Seminary, a boarding school operated by the Diocese for high school boys who were interested in becoming priests. Three witnesses who were students at the Ryan Seminary during that period testified that Herdegen sometimes gave them alcohol rubs or massages to help treat sports injuries. The witnesses consistently testified that these occurred at their request, involved only minimal disrobing, lasted but a few minutes, and took place in a hallway or other setting open to passersby, including the school's rector, who sometimes walked by as the massages took place. The three witnesses said there was absolutely nothing sexual or otherwise improper about the massages.
Before this testimony took place, Mahony was questioned in the abstract as to how he would have reacted upon learning that a priest was giving alcohol massages to male students. Mahony testified that no priest "should be giving anyone a massage, anywhere, period." Had he heard of Herdegen's conduct in the 1960's, when Mahony was supervising priests, he would have been upset and outraged because such conduct is "totally incompatible with a priest," and would have likely led to an investigation.
B. Knowledge of the Housekeeper
Priests were not allowed to have children alone with them in their bedrooms. Housekeeper Zeilman was frequently present when George and Howard showed up at the rectory and went with Herdegen inside his private rooms.*fn3 Herdegen massaged and masturbated the boys while they lay on a sheet Herdegen spread on the floor. The sheets would end up with semen and oil stains, and Zeilman washed those sheets.
When the Santillans' mother learned of the abuse years later, she asked Zeilman why Zeilman never said anything. Zeilman's only response was to say that she was sorry.
Zeilman's daughter testified that Zeilman never said anything about having suspicions that Herdegen was sexually molesting anyone. The daughter helped Zeilman wash the sheets, and never noticed any semen or oil stains. When the daughter proposed sending her son off for an overnight visit with Herdegen, Zeilman expressed her approval, something the daughter testified her mother would never have done had she believed Herdegen was a child molester.
Mahony testified that from the 1960's to the 1980's, a priest who suspected that another priest was molesting children was expected to report his suspicions to his superiors at the Diocese. When asked about lay employees in a parish, Mahony said that back then there were no handbooks or procedures in place for either priests or lay employees. As a result, Mahony believed that "people like housekeepers would have no idea that there was any . . . obligation to report to anyone in the church, because there . . . was nothing in writing that would tell them that."
Even so, Mahony agreed that protecting children in its care was a top priority for the church, including lay staff such as housekeepers. Asked whether he would expect a housekeeper who suspected a priest was molesting a child to report it "up the chain of command," Mahony answered, "Well, I would suspect they'd tell somebody . . . ." If Mahony learned that a housekeeper with such suspicions had kept quiet, he would have been very concerned and might have considered firing them.
Mahony was then asked whether the Diocese would expect a parish housekeeper who found semen-stained sheets after boys routinely stayed alone with Herdegen in his living quarters to report that "up the chain," Mahony answered: "Well, maybe she wouldn't up the chain, but she should sure tell somebody." Pressed to identify to whom the housekeeper should report, Mahony said: "Well, in a small town, most everybody knows everybody [a]nd there would be, I would think, a lot of people that she would tell. Because if there's no other priest in the town, she may not feel it's her role to go to Fresno to report it, but she would tell somebody. If a housekeeper really felt a child was in danger, she'd have to do something. I mean, it's just instinctive."
Pressed further as to whether he would have expected the housekeeper to report her concerns to the Diocese, Mahony said he "would expect her immediately to contact somebody, immediately." When asked whether that would include the Diocese, Mahony said, "Well, certainly, and maybe a pastor, the dean in Bakersfield possibly, someone [¶] [who was] in a position to do something about it." Asked whether that would be so as a matter of Diocese policy, Mahony answered: "Again, if . . . anyone has knowledge that a child is in danger, physically, emotionally, sexually, anyone, any human being has to do something about it. You cannot just leave that alone." When asked whether that was a matter of common sense, Mahony said it was. On cross-examination, Mahony clarified that a housekeeper such as Zeilman working at a parish from 1960 to 1973 was not obligated as a condition of employment to report to the Diocese any suspicions that a priest was molesting children because at that time there were no employee handbooks.
C. Herdegen Touched Children While on the Parish School Playground
George testified that when he was a student at St. John's elementary school, Herdegen would sometimes touch him through his clothes. Herdegen also sometimes hugged other students. These events took place in the schoolyard while nuns and teachers were nearby.
3. Facts Concerning the New Trial Motion
The jury began deliberating on April 2, 2009, and returned its special verdict the next day. Judgment on the verdict was entered April 9, 2009. On May 11, 2009, counsel for the Santillans moved for a new trial based on information from a previously unknown witness who contacted them about two hours after deliberations began on April 2.
The witness, Patrick Wright, submitted a declaration stating that he had lived in Wasco and attended the St. John's school there in the mid-1960's. Wright said he served as an altar boy for Herdegen, and on several occasions Herdegen would come up to Wright while Wright was in the dressing area after mass, "bend over, put his hands on each of my cheeks and stare deeply into my eyes as if he was about to kiss me on the lips." On another occasion while alone with Herdegen in the dressing area, Herdegen "stood in front of me, began praying in [L]atin, and put one hand behind my head and began pulling my face to his groin. He pulled my head so that my face was in his cassock." Finally, in late 1967, Herdegen followed Wright into the altar boys changing area, blocked him from behind, and began to massage Wright's shoulders. When the massage ended a minute later, Herdegen asked if Wright would like to go to the rectory with him for a glass of milk. Disturbed by the incident, Wright went home and told his mother what had happened. Wright's mother took him to see Sister Vidaline, who was the school principal. Wright told her what had happened. Soon after, he was told he could not serve mass anymore and was expelled from the school.
Wright moved away from Wasco in 1975 or 1976 and never returned. At the time of the trial, he was a resident of Arizona. On March 18, 2009, Wright's son told him the Santillans were going to trial against Herdegen. Wright found internet articles identifying a Jeff Anderson as George's lawyer. Wright tried unsuccessfully to reach Anderson in California, phoning a lawyer by that name who was in Sacramento. On April 2, 2009, lawyer Jeff Anderson from Sacramento returned Wright's call and told him he was not George's lawyer but said there was a lawyer by the same name in Minneapolis. Wright called that Jeff Anderson's law office and said he had information about the case.
The Jeff Anderson in Minneapolis was in fact one of George's lawyers. That Anderson got the message from his office about two hours after deliberations began on April 2. He was on his way back to the courtroom to respond to a question from the jury, and once he completed that task, Anderson phoned Wright and spoke to him briefly. Anderson called Wright again later that day and had a longer conversation about Wright's experiences with Herdegen. Wright spoke with Anderson and Howard's lawyer a few days later.
The Diocese opposed the motion on several grounds: (1) the Santillans' delayed discovery of Wright resulted from their failure to use reasonable diligence during discovery, especially because Wright's name was listed on a roster of parish school students produced by the Diocese; (2) the Santillans' did not use reasonable diligence because they did not bring their discovery of Wright to the court's attention until after the jury reached its adverse verdicts; and (3) the new evidence from Wright was not material because he did not report Herdegen to an agent of the Diocese, the ...