By Kay Ebeling
Examiner
May 13, 2009
http://www.examiner.com/examiner/x-1960-LA-City-Buzz-Examiner~y2009m5d13-Court-could-stack-deck-against-plaintiffs-in-lawsuits-re-pedophiles
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| Blanco, Hightower perp |
PART ONE
The decision affects anyone who wants to file a civil lawsuit for child sex abuse, but cases against the Catholic Church were being thrown out in L.A. because of a 2006 decision in a case litigated by Thomas Hightower, a plaintiff who filed his own briefs from a cell in Mule Creek State Prison.
The Bishop of Oakland won the case against Thomas Hightwoer on appeal, saying the suit was time barred by the Statute of Limitations, thus making all cases filed after the age 26 cap since December 2003 invalid. Now another appellate decision on the Quarry case in February 2009 disagrees with Hightower and says cases filed after age 26 are valid.
“The main difference is that Quarry was litigated by professional plaintiff attorneys,” says a plaintiff attorney in Santa Barbara.
Any day now the California Supreme Court could either agree to take the Quarry appeal, or refuse to take Quarry, making Hightower law. “The main difference is that Quarry was litigated by professional plaintiff attorneys,” says a plaintiff attorney in Santa Barbara.
The outcome of this case could keep plaintiffs from being able to file lawsuits as adults about sexual assault they experienced as a child in the state of California, except under strict guidelines that either no longer exist or continue to exist since the passage of CCP 340.1 in 2002.
Attorneys and judges in the California Clergy Cases are now “waiting for Hightower,” as future civil cases re child sexual assault in this state hinge on this decision coming up any day now in the California Supreme Court. In hearings last month, Judge Emilie Elias referred indirectly to the February 2 Quarry decision and delayed action on several Los Angeles cases re Catholic priests saying, “My intent is to stay any more of the Hightower motions until we see if the Supreme Court takes them.
“I'm just not going to hear them until we see what's happening.”
Judge Elias has already dismissed about a dozen child sex assault lawsuits against the Catholic Church that have come before her since January 2008 when she took over the Clergy Cases from retiring Judge Haley Fromholz, based on the 2006 decision in the Hightower appeal. One after the other, Elias granted the LA Archdiocese’s motions to dismiss - based on the Second District Court of Appeal decision in the case of Hightower vs. the Roman Catholic Bishop of Sacramento, now on appeal, which said the Legislature did NOT remove the age 26 cap. She stopped dismissing cases when the February 2, 2009 Quarry decision came out, and now everyone is waiting for the California Supreme court.
The Deck Once Again Stacked in Church’s Favor
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| Mule Creek State Prison, where Hightower resides |
The church will have managed to stack the deck entirely in its favor if the state Supreme Court turns down Quarry and retains Hightower, because Hightower was filed by a plaintiff filing motions for himself from state prison, where he is incarcerated as a hild sexual molester himself.
How could the Hightower case become the case that decides the future of child sex assaults lawsuits in California?
A decision as important as the Hightower appeals court decision in August 2006, litigated for plaintiffs by a damaged man in prison, if left in place, could return the State to pre- CCP 340.1 thinking. When the Legislature created the one-year window for lawsuits to be filed in 2003, most lawyers agree the legislators also removed age 26 cap from the statute of limitations.
The Bishop of Sacramento was able to get an appellate court to disagree. Fighting against one plaintiff filing motions from prison.
“Under Hightower, anyone who was 26 or older in 2003 does not have the right to make a claim under CCP 340.1's standard of making the connection between the injury and the abuse,” explains attorney Tim Hale in Santa Barbara. “This arbitrary cut-off could not have been intended by the Legislature, but that is exactly what Hightower holds.”
The Quarry decision from the First Appellate Court in Alameda in February 2009 counters Hightower, saying:
“Effective 2003 the Legislature deleted the age 26 cutoff as against a narrow category of third party defendants who had both the knowledge and the ability to protect against abusive behavior but failed to do so. Anyone discovering that childhood abuse was the cause of their injuries after 2003 could sue these—more culpable—defendants without regard to the age 26 cutoff.”
The Hightower decision reads:
“The statute of limitations ran out on Hightower's claims in 1977.”
Hightower’s case if full of errors, and it is different from almost every other child sex assault case in California. Yet the decision in this case filed by a prison inmate, fighting singlehandedly all the way to the Supreme Court against the Roman Catholic Church, could affect all future cases filed for sexual abuse that include a third party, not just against the Catholic church, but any guilty third party that was negligent and allowed sex crimes against the child now an adult filing a lawsuit to continue.
Where the third party - any employer or a corporate entity - is at fault, as has been the case with thousands of cases against the Catholic Church, the appellate decision in this weak case filed by Thomas Hightower, a prison inmate without an attorney, could affect the future of child sexual assault tort law in California.
Background on the unique case of Thomas Hightower:
The Hightower case like so many
Is a story in itself:
Thomas Hightower claims he got his “letter to bishop stating intent to sue” postmarked from Mule Creek State Prison mail December 23, 2003, putting his “motion” into the one year window for civil suits re sexual assault that the California Legislature opened in Civil Codes: 340.1 -
What is it this one plaintiff’s case - filed by a prison inmate acing on his own behalf; indeed the appeal briefs that led to the Second District appeal decision were filed by Hightower acting as his own attorney from prison - why is this the case that is used to go all the way to the California Supreme Court?
Hightower’s case is not at all similar to the more than 600 civil cases filed in California during that one-year window in 2003 or any cases filed since. Yet this weird case might be used to set the standard for all future child sex assault lawsuits in the state.
Once again the cards are stacked in favor of the Roman Catholic Church, who we know had teams of attorneys from several law firms fighting against Hightower, as they do with all their cases in California. All that power is fighting one damaged man in prison, who says he is a child molester himself because of the damage done to him by Mario Blanco?
Hightower’s case was too muddled to set a standard
From the Hightower appellate decision:
“January 14, 2004, the Sacramento court refused to file the document as a complaint because Hightower did not include the filing fee or a fee waiver request,” reads the Hightower decision.
“He alleged that as a state prison inmate he had an extra year to file his complaint under section 352.1 and that the delayed discovery rule for repressed childhood memories applied."
The Hightower case is extremely unusual and should not be allowed to affect future cases in California.
Hightower made a lot of mistakes filing from prison: More from the Hightower decision:
“Apart from a general statement that beginning at the age of 12 he was sexually abused by a priest of the Sacramento Archdiocese from 1970 to 1972, the document contains no allegations concerning a basis of liability against the bishop, does not mention damages, and seeks no relief. Finally, Hightower confirmed at the hearing on the bishop's demurrers that he filed the December 2003 document in order to put the court on notice that he was suing the bishop, that a formal complaint was being prepared, and that he eventually planned to file a complaint.”
He told the court in a hearing: “This is what I'll be suing for, and the formal complaint is being composed just as fast as I can get it composed.”
The case in the Quarry Decision is more likely similar to future cases: In Quarry, six brothers claim they were sexually abused by a Catholic priest in the 1970’s, when they were children. They sued defendant Doe I (Bishop of Alameda) in 2007 for damages due to adult-onset psychological injuries allegedly caused by that abuse. When they sued, they ranged in age from 43 to 40, but they did not discover until 2006 that the cause of their adulthood psychological injuries was the childhood sexual abuse.
The Bishop demurred to the complaint, arguing that the complaint was barred by the statute of limitations of Code of Civil Procedure[1] section 340.1.
The appellate court disagreed and said:
“Plaintiff need only allege the onset of psychological injury or illness after the age of majority and that he commenced his action within three years of the time he discovered or reasonably should have discovered such psychological injury or illness was caused by the childhood sexual abuse. (§ 340.1, subd. (a).)” (Id. at p. 1186.)
NOTE: Once again, the Church never denies these crimes took place, they just hire teams of attorneys to block justice for the crime victims.
More about Hightower’s case that reads like a drama:
Thomas Hightower watched from Mule Creek State Prison in Ione, California, as the Diocese of Sacramento agreed in July 2005 to pay $35 million to settle 33 claims of sexual abuse by priests, including 16 against Tacoma priest Mario Blanco. (there were 17 cases filed, presumably the 17th was Hightower’s left unsettled.
Yes, Mario Blanco was still serving as a priest in 2005 in Tacoma, Washington.
In fact, while at least 17 men dealt with interrogatories from Catholic Church attorneys and lengthy litigation on their cases, Mario Blanco was being flown around the state by Actor Mel Gibson:
PART 2 of this story is here
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