A demurrer tests the sufficiency of a complaint as a matter of law. Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958. In ruling on a demurrer, all material facts pleaded in the complaint and those that arise by reasonable implication are deemed admitted. Wilner, 78 Cal.App.4th at 958. The complaint must be liberally construed, drawing reasonable inferences from the facts. See Wilner, 78 Cal.App.4th at 958. A>A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.=@ Lockley v. Law Office of Cantrell et al. (2001) 91 Cal.App.4th 875, 881. A[I]t is error for a . . . court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.@ Fox v. Ethicon (2005) 35 Cal.4th 797, 810.

California defines nuisance as anything that is Ainjurious to health, ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway.@ Civ.Code, ' 3479. Civil Code sections 3480 and 3481 divide the class of nuisances into public and private.

A public nuisance is one which Aaffects at the same time an entire community or neighborhood, or any considerable number of persons.@ (Civ.Code, ' 3480.) Rounding out the taxonomy of the Civil Code, section 3491 provides that A[t]he remedies against a public nuisance are: [] 1. Indictment or information; [] 2. A civil action; or, [] 3. Abatement.@ Acuna, 14 Cal.4th at 1104.

"To qualify, and thus be enjoinable, the interference must be both substantial and unreasonable." Id. at 1105. A[T]he question is not whether the particular plaintiff found the invasion unreasonable, but >whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.= @ Id.

Defendants cite two cases for this repugnant proposition, Thompson v. County of Alameda (1980) 27 Cal.3d 741 and Eric J. v. Betty M. (1999) 76 Cal.App.4th 715. Defendants’ attempt to analogize themselves to the defendants in these two lawsuits fail miserably. In Thompson, the defendant was a county that paroled a convicted offender who was a threat to young children. In Eric J., the defendants were family members who knew their relative was convicted child abuser but did not warn his girlfriend or her young son. Unlike Defendants herein, neither the county nor the family members helped the perpetrators in Thompson or Eric J. escape criminal prosecution, and avoid registration as sex offenders. Also unlike Defendants herein, neither the county nor the family members hired or continued to employ the perpetrators, assigning them job titles or uniforms that would convey trustworthiness to the communities in which they worked. And neither the county nor the family members then sent the perpetrators out into the community, or invited the community to their place of business where they employed the perpetrators, all in furtherance of their business interests. These distinctions render Thompson and Eric J. inapplicable to the facts of this lawsuit.

A greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger.@ Juarez v. Boy Scouts (2000) 81 Cal.App.4th 377, 410. Generally, a person has no duty to control the conduct of a third person, nor to warn those endangered by such conduct, in the absence of a ?special relationship? either to the third person or to the victim. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 435. However, an exception to this rule exists where the defendant, through his or her own action creates a foreseeable risk of harm from the third person. Under those circumstances the question of duty is governed by the standards of ordinary care. Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209; Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 530. Additionally, A[a] duty may be based on the ?general character? of the activity engaged in by the defendant.@ Bastian, 199 Cal.App.3d at 530.

Second, Plaintiff's FAC in fact does allege, at page 9, lines 11 20, abuse by a Franciscan earlier in this decade: Fr. Steven Kain, a former faculty member at St. Anthony's Seminary. Fr. Kain was one of 4 Franciscans accused of childhood sexual abuse in another 1993 Santa Barbara Superior Court lawsuit, Larson v. Franciscan Friars of California, Inc. et al., Case No. 719033 7. In the recent coordination litigation Franciscan Fr. Xavier Harris testified he and Fr. Kain worked together for a period of 2-3 years at St. Williams, a parish in Los Altos at least as recently 2001.

In support of their causation argument, Defendants cite In re Firearms Cases, 126 Cal.App.4th 959. It should be noted at the outset that Defendants’ causation argument cannot provide the basis for sustaining a demurrer. AFacts relating to the issue of causation is a job properly left to the trier of fact.@ Bastian, 199 Cal.App.3d at 531. In fact, In re Firearms was an appeal from an order granting a motion for summary judgment. 126 Cal.App.4th at 967. Additionally, the trial court granted summary judgment after the plaintiffs failed to offer any factual evidence that the practices of gun manufacturers was causally connected to the acquisition of firearms by criminals. To the contrary, plaintiffs argued in appealing the order granting summary judgment that they were not required to link any specific instance, of a criminal acquiring a gun, to a gun manufacturer, and instead relied solely on Aexpert testimony based on statistical studies of illegal gun purchases.@ In re Firearms Cases, 126 Cal.App.4th at 969. The exact opposite is true in this case.

A. The History, Purpose And Language Of Section 340.1
Section 340.1 represents the Legislature=s recognition that the comprehension of harm inflicted as a result of childhood sexual abuse can be delayed for many years into adulthood. Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1421. As a result, the Legislature enacted the statute to provide Avery generous limitations periods for adults who belatedly realize >that psychological injury or illness occurring after the age of majority was caused by the sexual abuse= that occurred many years ago in childhood.@ Id.
The purpose of the expanded limitation provided by ' 340.1(a) is to allow victims Aa longer time period in which to become aware of their psychological injuries and remain eligible to bring suit against their abusers.@ Debbie Reynolds v. Superior Court (1994) 25 Cal.App.4th 222, 232. As a result, A[t]he limitations period begins to run [i.e. the claim accrues] only after the victim, who is then an adult, appreciates the wrongfulness of the . . . conduct.@ Tietge v. Western Province of the Servites (1997) 55 Cal.App.4th 382, 387.

In 1998, the statute was amended to allow plaintiffs 8 years from the date of majority to seek redress from responsible third parties under a theory of direct liability; whereas the previous versions applied only against the perpetrator of abuse. ' 340.1(b)(1), stats, 1998, ch. 1032, '1. Such actions were required to be filed prior to the plaintiff=s 26th birthday. Id. In 1999 the Legislature clarified that the 1998 provisions relating to non-abuser liability applied to Aactions begun on or after January 1, 1999, or if filed before that time, actions still pending as of that date, >including any action or causes of action which would have been barred by the laws in effect prior to January 1, 1999.=@ Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, 208 citing Stats, 1999, ch. 120 ' 1.

The 2002 amendments also revived, for 1 year, claims that Awould otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired . . .@ ' 340.1(c). The 1-year window for filing such claims closed on December 31, 2003. Id.
Last year our Supreme Court recognized A[S]ubdivision (b)(2) is a remedial statute that the Legislature intended to be construed broadly to effectuate the intent that illuminates section 340.1 as a whole; to expand the ability of victims of childhood sexual abuse to hold to account individuals and entities responsible for their injuries.@ Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 536. The Court noted that the 2002 amendment:

is intended to ensure that victims severely damaged by childhood sexual abuse are able to seek compensation from those responsible. [&] . . . [T]his bill provides that the extended statute of limitations in childhood sexual abuse cases against a third party extends beyond age 26 of the victim, when the third party knew, had reason to know, or was otherwise on notice, of unlawful sexual conduct by the individual and the third party failed to take reasonable steps and to implement reasonable safeguards to avoid future acts of unlawful sexual conduct by that individual . . . In support of the measure, the author states: [&] This bill is essential to ensure that victims severely damaged by childhood sexual abuse are able to seek compensation from those responsible. While current law allows a lawsuit to be brought against a perpetrator within three years of discovery of the adulthood aftereffects of the childhood abuse, current law bars any action against a responsible third party entity (such as an employer, sponsoring organization or religious organization) after the victim=s 26th birthday . . . [&] . . . This arbitrary limitation unfairly deprives a victim from seeking redress and unfairly and unjustifiably protects responsible third parties from being held accountable for their actions that caused injury to victims.

Doe, 42 Cal.4th at 544. The Assembly Judiciary Committee understood that under SB1779 A[p]eople who discover their adulthood trauma from the molestation after the effective date of the bill will have three years from the date the victim discovers or reasonably should have discovered that the adulthood trauma was caused by the childhood abuse.@ LH0142.
The Legislature also repeatedly recognized that A[t]his bill would provide that the absolute age of 26 limitation in actions against a third party does not apply, and the broader >within three years of discovery= statute of limitations in subdivision (a) applies@ when the defendant was on notice. LH0047; LH0068; LH0073; LH0088; LH0109; LH0112; LH0124. The Legislature=s justification for the expansion was that A[t]he promotion of justice appears to be served by extending the statute of limitations@ when the culpable third party was on notice of prior molestations. LH0106. That justification does not support the arbitrary distinction urged by the Defendants.

Such a construction is at odds with the statute=s remedial purpose, and contravenes the Legislature=s intent.
1. Section 340.1 applies the Athree year from discovery@ provision to actions commenced after January 1, 1999

A plaintiff must bring a claim within the limitations period after the accrual of the cause of action . . . [I]n other words, statutes of limitation do not begin to run until a cause of action accrues.@ Fox, 35 Cal.4th at 806; Cal. Code Civ. Proc. ' 312.

Had it intended to revive only those actions that were barred under the statute of limitations at the time of the touching, or by the age 26 limitation, the Legislature would have revived causes of action that were Abarred by the law in effect prior to January 1, 2003.@ The distinct language used by the Legislature indicates that the revival applies to actions that are time-barred under the law in effect on January 1, 2003. On that date, subdivision (b)(2) permitted victims over the age of 26 to file actions within three years of discovering the nexus between the childhood sexual abuse and adulthood psychological injuries. A claim was barred Aas of@ January 1, 2003, if the victim had previously discovered the causal connection between the abuse and her injuries such that the claim had accrued and the statute of limitations had expired as of the effective date of SB1779.

After the passage of section 340.1, courts began to adopt a more liberal view of delayed discovery in sexual abuse cases . . .@ Sellery v. Cressey (1996) 48 Cal.App.4th 538, 545. AKnowledge of the act and injury is not in itself sufficient to start the limitations period: >[U]nder the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.=@ Evans, 216 Cal.App.3d at 1611; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1114 (A. . . the limitations period begins to run when the plaintiff suspects, or should suspect, that she has been wronged@). AAwareness of wrongdoing is a prerequisite to accrual of the action under the delayed discovery rule.@ Evans, 216 Cal.App.3d at 1611, 1619 (court could not Astate as a matter of law that it is psychologically impossible for plaintiffs to have lived in such continuing ignorance that what happened to them was wrong@); see Jolly, 44 Cal.3d at 1114; Curtis T., 123 Cal.App.4th 1405, 1422-23.

The direct and specific pleading rule argued by Defendants for fraud is mitigated where the following circumstances are present: 1) Ait appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy@; 2) practicality; and 3) the realistic setting of the case. Committee on Children=s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217, 219 (children not expected to recall specific advertisement that lead them to desire a product). The Arequirement of specificity is relaxed when the allegations indicate that >the defendant must necessarily possess full information concerning the facts of the controversy [citations omitted], or >when facts lie more in the knowledge of the opposite party.@ Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 158. Even with the discovery and investigation conducted by plaintiff=s counsel in prior lawsuits, there can be no dispute that facts related to Defendants’ concealment or failure to disclose knowledge of their perpetrators’ tendencies to abuse children are far more available to Defendants than Plaintiff.

Marketing West v. Sanyo Fisher (USA) (1992) 6 Cal.App.4th 603, 613. ADeceit may be affirmative or negative. Affirmatively, it is a false statement. Negatively, it includes the suppression of a fact by a person who is obligated to disclose it.@ Nussbaun v. Weeks (1989) 214 Cal.App.3d 1589, 1594. AA duty to disclose known facts arises when the party having knowledge of the facts is in a fiduciary relation.@ Richelle L, 106 Cal.App.4th at 271 (quoting Vai v. Bank of America (1961) 56 Cal.2d 329, 337-38).
Notwithstanding the relaxed pleading requirements, the FAC is replete with allegations of intent by the Franciscans to conceal and suppress allegations of abuse by the perpetrators, including plaintiff=s perpetrator. See FAC, page 12: 16-26, page 16: 18-24. These allegations include the Ahow, when, where, to whom and by what means@argued for by defendants. Additionally, the FAC sufficiently pleads constructive fraud, which does not require fraudulent intent. See Engalla v. Permanente Med. Group (1997) 15 Cal.App.4th 951, 981 n.13.

See FAC Paragraphs 43-44 and 54-55. Conversely, the plaintiff in Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257 relied solely on her piety to establish the confidential relationship. Richelle L., 106 Cal.App.4th at 280. Accordingly, because Plaintiff has alleged a confidential relationship based in large part on her youth, and that is not predicated solely on the nature of Plaintiff=s religious faith, nor on the Perpetrator=s status as a Franciscan, the existence of such a relationship is a question of fact that cannot be decided on demurrer as a matter of law. Id. at 273 fn. 6.

Additionally, plaintiff incorporates by reference the duty analysis set forth at page 8. Under the facts alleged in the FAC, Defendants had a duty to warn, train and educate Plaintiff. Juarez, 81 Cal.App.4th at 402. To the extent the Court agrees Plaintiff=s allegations are insufficient in this regard, Plaintiff requests leave to amend to correct any such deficiencies.

FAC, p. 12, lines 8-11. There is no claim of Apastoral malpractice@ in the allegations setting forth her reason for contacting the Franciscans. Id. Nor is there any such allegation in either of the emotional distress counts. FAC, && 61- 70. To the contrary, the allegations in those counts are purely secular in nature. Following Defendants’ flawed logic, a victim who reports her sexual abuse by a hospital employee to hospital administrator has sought medical treatment just by making such a report. The fact plaintiff reported her abuse to an employer who happened to be a religious brother does not render the contact pastoral. Defendants have simply taken it upon themselves to rewrite the emotional distress counts to fit the defense they seek to raise. The lone case Defendants cite in support of their argument, Nally v. Grace Community Church, (1988) 47 Cal.3d 278, further illustrates why plaintiff=s emotional distress counts are not claims for clergy malpractice. The plaintiffs in Nally were the parents of a young church member who committed suicide while participating in his church=s pastoral counseling program. Id. at 284. Here, while plaintiff was a practicing Catholic at the time of the abuse, it has been many years since she was active in the Roman Catholic faith. Accordingly, and unlike in Nally, there was no Areligious relationship@ when she made contact with the perpetrator=s employer in hopes the employer could help identify the abuser.
Recognizing that the pastoral malpractice defense has no application to these facts, Defendants next try to cloak their conduct in the litigation privilege.

More importantly, whether a prelitigation communication is protected by the litigation privilege is an issue of fact that cannot be resolved by demurrer. Action Apartment Ass'n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251; see also Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1381 (trial court erred in granting summary judgment on basis of privilege as A[i]t remain[ed] a triable issue of fact whether ... imminent litigation was seriously proposed and actually contemplated in good faith)

See White v. Ultramar, (1999) 21 Cal.4th 563, 571 (discussing these three concepts); Murillo v. Rite Stuff Foods, Inc., (1998) 65 Cal.App.4th 833, 852 (failure to terminate after notice of wrongdoing is evidence of ratification).

Defendants rely solely on Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453, 1461 to support their argument Defendants have no vicarious liability. This reliance is misplaced.

There is simply no basis for imputing liability for the alleged conduct of the individual defendant priests in this instance to the respondent Archbishop. Similarly, appellant has not pointed out any fact which could lead this court to a conclusion that the Archbishop Aratified@ the concupiscent acts of the priests.

See FAC, Para. 7. The perpetrator=s abuse of plaintiff, however, continued. Id. Plaintiff also has alleged that Franciscan perpetrators have sexually assaulted no less than 60 Santa Barbara children since 1936. FAC, Para. 8.

Finally, the applicability of respondeat superior is a factual question. Lisa M. v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal.4th 291, 299-300; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213. Accordingly, the challenge to Plaintiff=s theory of vicarious liability is inappropriate at this time, and should not be decided on demurrer.

7. The 14th Cause Of Action For Premises Liability
It has long been established that landowners and/or business proprietors have a Aduty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.@ Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121. Numerous cases involving third party conduct have met the definition of foreseeably dangerous activities giving rise to premises liability.
An attack in a hospital parking lot where emergency room operations in a high crime neighborhood drew persons under the influence of drugs or alcohol. Isaacs v. Huntington Mem=l Hosp. (1985) 38 Cal.3d 112, 130-31. A rape in a condominium unit located in a high crime wave area which lacked exterior lighting. Frances T. v. Village Green Own Ass’n (1986) 42 Cal.3d 490, 498. A rape where several of a building=s female tenants had been attacked, but where the landlord failed to warn of this danger. Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 333. A sexual assault in the women=s room of a public rest stop by a hidden assailant where such was Adismally predictable.@ Constance B. State of Cal. (1986) 178 Cal.App.3d 200, 206-07. The law recognizes that a landowner can be liable for the intentional unlawful conduct of others. Here, the legal nexus is even closer because the individuals committing the criminal acts were Defendants’ employees.

In support they rely upon an inapposite case: Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004-05 (governmental tort claims action). This case does not stand for the proposition that a landowner cannot be held liable for reasonably foreseeable intentional criminal conduct that occurs on his or her property. In fact, it does not even address the issue of premises liability.
In the two cases cited by Defendants that reference premises liability B Juarez, 81 Cal.App.4th 377 and Eric J., 76 Cal.App.4th 715 B Defendants misconstrue the holdings. Contrary to Defendants’ suggestion that Juarez precludes premises liability where the plaintiff had been molested on Church property, Juarez actually holds that the plaintiff had not met the pleading requirements because:
[M]aterial facts [have not] been proffered by Juarez to support his cause of action against the Church alleging premises liability . . . Juarez does not claim there were facts that put or should have put the Church on notice of the molestation, nor does he claim the Church could have taken effective steps to the sexual molestation. [Instead,] Juarez implies that the Church was strictly liable for anything occurring on its premises. This is not the law in California.
Juarez, 81 Cal.App.4th at 413. Plaintiff=s case is not just distinguishable from Juarez, but the exact opposite in terms of allegations of notice to defendants. Unlike in Juarez, Plaintiff has alleged facts that put Defendants on notice not only of her molestation, but that of numerous other children at St. Anthony=s and the Mission. Plaintiff further alleges Defendants could have taken effective steps to prevent sexual molestation of plaintiff and these other children.

Defendants reliance on Eric J. is similarly misplaced. In addition to the fact Eric J. is an appeal from a motion for a nonsuit, the bases for premises liability that were missing in Eric J. are present in this case. Specifically, the Eric J. court noted the fact the property at issue were Ajust homes@ as opposed to businesses, that there was no activity on the property implicating liability, and that there was no entrustment of a child to any of the defendants. Eric J., 76 Cal.App.4th at 727. Here, St. Anthony=s and the Old Mission served both as a school and a parish, the latter attended by plaintiff and both open to the public.

Section 340.1(e) defines childhood sexual abuse by reference to various Penal Code sections. The first such Penal Code section referenced in ' 340.1(e) is PC section 266j, the crime of procurement of a child which is the basis for the 15th cause of action.