Opposition to Fransciscan request to lump Ongoing Public Nuisance case in Santa Barbara with Clergy Cases in LA

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Posted by City of Angels Network

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
County of Los Angeles

COORDINATION PROCEEDING SPECIAL TITLE (RULE 1550(b))

THE CLERGY CASES I
This s Document Relates to:
MARY JONES, an individual,
Plaintiffs,
v.
Franciscan Friars of California, Inc.; Old Mission Santa Barbara; and Does 5 through 100, Inclusive.
Defendants.
Santa Barbara Superior Court Case No. 1265207
JUDICIAL COUNCIL COORDINATION PROCEEDING
No. 4286
PLAINTIFF OPPOSITION TO DEFENDANTS’ REQUEST TO ADD ON SANTA BARBARA COUNTY SUPERIOR COURT CASE NO. 1265207 AND FOR STAY; DECLARATION OF TIMOTHY HALE
California Rule of Court Rule 3.544(b)
Dept.: 308
Coordination Judge: Honorable Emilie H. Elias

Plaintiff Mary Jones submits this Opposition to the Request to Add On Santa Barbara Superior Court Case No. 1265207 and for Stay filed by Defendant Franciscan Friars of California, Inc. (AFranciscans@) and Defendant Old Mission Santa Barbara (AOld Mission@).

I.
INTRODUCTION
Secrecy is the name of the Franciscans’ deadly game. For decades the Franciscans of the Province of St. Barbara (Province) have concealed and protected Franciscan perpetrators of childhood sexual abuse. Instead of notifying law enforcement and empowering the public to protect their children, the Franciscans’ have sheltered these predators and thereby thrown to the wolves children in the communities throughout the Western United States where the Franciscans conduct their ministry.

Starting at least as early as 1964, and continuing as recently as the abuse committed in Idaho by former Franciscan Louis Ladenburger in 2007, Franciscan corporate practices have created countless victims of childhood sexual abuse, and continue to put an even greater number of today’s children at risk to be sexually assaulted by predators whose identities and propensities are known only to the Franciscans.

No community has suffered greater harm to its children, as a result of Franciscan criminal conduct, than Santa Barbara. Since 1964 the Franciscans have allowed no less than twenty-four (24) Franciscan perpetrators to live in Santa Barbara without any warning to the community. The tragic results have been at least fifty-nine (59) Santa Barbara children sexually assaulted by Franciscans since 1964. These numbers would be outrageous anywhere, but are particularly shocking for a city with a population of approximately 90,000.

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The subject lawsuit seeks a court order ending the secrecy. The Franciscans’ corporate practice is a continuing Public Nuisance.
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The subject lawsuit seeks a court order ending the secrecy. The Franciscans’ corporate practice is a continuing Public Nuisance.

It has stifled the ability of law enforcement to protect the public and prosecute these men by concealing their identities until the criminal statutes of limitations have expired. And it has rendered the civil process the last resort for the public to end these practices. Numerous million dollar settlements have not changed the Franciscans’ approach to managing perpetrators and sacrificing children. Equitable, proactive relief is now sought to force the Franciscans to change their ways.

The subject Request to Add On is consistent with the Franciscans’ policy of secrecy. With twenty-four (24) Franciscan perpetrators and fifty-nine (59) victims since 1964, Santa Barbara is the epicenter in the Province of the harm caused by the Franciscans. As they have done so often with their perpetrators, it comes as no surprise that the Franciscans now seek to transfer this case as far away from Santa Barbara as possible, to a comparably disinterested community in Los Angeles where the lawsuit will most likely be ignored. Justice requires this case be heard in Santa Barbara, the community most severely injured by the Franciscans’ conduct.

II.
BACKGROUND

In 1998, plaintiff’s counsel, Nye, Peabody, Stirling & Hale, LLP, began litigating claims involving the criminal conduct of Franciscan perpetrators and hierarchy in Santa Barbara. Since the inception of that litigation the Franciscans’ defense strategy has been consistent and unwavering: preserve the Franciscans’ secrets by narrowing the focus of each lawsuit filed to one victim and one perpetrator. This strategy’s sole purpose is to keep the public ignorant by shifting attention away from the despicable Franciscan corporate practice of concealing the identities, propensities, and current assignments and/or residences of Franciscan perpetrators.

After nearly eleven years of litigation, the Franciscans’ strategy is failing. As a result of discovery and investigation conducted since 1998, plaintiff’s counsel has identified no less than twenty-five (25) Franciscan perpetrators assigned or in residence in Santa Barbara since 1936, and sixty (60) Santa Barbara children who have been sexually assaulted by these men. This tragedy is the result of the Franciscan corporate practice of concealing perpetrators of childhood sexual abuse.

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The subject Request for Add On continues the Franciscans’ battle for secrecy.
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The subject Request for Add On continues the Franciscans’ battle for secrecy. Nothing has changed. Once again they are attempting inappropriately to narrow the focus of a lawsuit to one Franciscan perpetrator, one Franciscan victim. A cursory review of the First Amended Complaint makes clear the true focus of the lawsuit: the threat to all children at any location where the Franciscans continue to conduct their business, and the heightened threat to Santa Barbara children where the Franciscans have dumped so many of their perpetrators without any warning to the community. The Franciscans have created a continuing Public Nuisance.

In a preemptive attack on the Public Nuisance cause of action, the Franciscans describe it as Aan attempt to plead around the >Hightower= bar.@ Although a continuing Public Nuisance cause of action is not subject to Hightower, this theory was not incorporated in plaintiff’s complaint in response to that opinion.

Plaintiff’s counsel does not believe this misstatement was an intentional effort by defense counsel to mislead the Court. Rather, this misstatement is the result of defense counsel’s never having represented the Franciscans, to plaintiff’s counsel’s knowledge, prior to this lawsuit. They apparently are unaware that plaintiff’s counsel first began alleging the Franciscans’ conduct constituted a continuing Public Nuisance in 2000, six years before the Hightower opinion was published.

Plaintiff’s counsel first filed a lawsuit against the Franciscans in 1998, Allen v. Van Handel et al., Santa Barbara Superior Court Case No. 228296. Early in Allen the Franciscan defense strategy of preserving secrecy by narrowing the focus of each lawsuit to one perpetrator, one victim, became clear. As investigation and discovery continued in Allen the Franciscans’ motivation for pressing this strategy became obvious: the Franciscan hierarchy had allowed the adjoining properties of St. Anthony’s Seminary and the Old Mission Santa Barbara to serve for decades as a feeding ground for Franciscan predators.

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"The Franciscan hierarchy had allowed the adjoining properties of St. Anthony’s Seminary and the Old Mission Santa Barbara to serve for decades as a feeding ground for Franciscan predators."
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It quickly became apparent that thanks in large part to a purportedly independent inquiry in 1994 that actually was a Franciscan-controlled whitewash, the public remained unaware of the continuing threat posed to their children by the Franciscans. Consequently, plaintiff’s counsel began to research theories of liability to counter the Franciscans’ defense strategy of narrowing the focus of each lawsuit, and to end the Franciscans’ dangerous culture of secrecy.

After substantial legal research it became clear the Public Nuisance cause of action was the ideal theory to address and terminate the Franciscans’ criminal conduct. Consequently, leave to file a Fourth Amended Complaint alleging the Public Nuisance cause of action was sought in Allen in 2000. Since that date, every complaint plaintiff’s counsel has filed against the Franciscans has included the Public Nuisance cause of action. In short, the Franciscans’ contention the Public Nuisance cause of action was "creatively added" to plaintiff’s complaint Ato plead around the >Hightower= bar@ is patently false.

No court has ever issued an order addressing the viability of the Public Nuisance cause of action against the Franciscans. Shortly after the Fourth Amended Complaint was filed in Allen in 2000, the Franciscans settled that lawsuit before the Santa Barbara court could rule on their demurrer to the Public Nuisance cause of action. Since then, the Franciscans have settled fourteen more claims on behalf of plaintiffs represented by plaintiff’s counsel, all resolved before any court addressed the Public Nuisance cause of action.

III.
ARGUMENT

When civil actions share a common question of fact or law with actions coordinated pursuant to section 404 of the California Code of Civil Procedure, a plaintiff or defendant may request an order from the judge assigned to hear the coordinated actions to coordinate the add-on action. Cal. Code of Civ. Proc. ' 404.4.

Cases considered for coordination must share common questions of fact or law. The determination of whether cases share common questions of fact or law is a "threshold" standard, since it must be satisfied at the outset of the coordination procedure. Keenan v. Superior Court, 111 Cal.App.3d 336, 342 (1980).
A. Plaintiff Concedes Her Lawsuit Meets The Threshold Requirement.

Plaintiff does not dispute that her lawsuit shares some common questions of law and fact with the Clergy Cases. Many of the causes of action utilized in the Master Complaint in the coordination are incorporated into plaintiff’s complaint. And as in the Clergy Cases, Plaintiff alleges that, while a minor, she was sexually abused by a member of the clergy acting under the supervision and control of the Roman Catholic Church.

However, unlike the Clergy Cases, the subject complaint alleges the sexual abuse of plaintiff was a symptom of a problem much bigger than the oversimplification continually argued for by the Franciscans, i.e. the criminal acts of a rogue Franciscan against a solitary victim. In fact, it is here the subject complaint drastically departs from the Master Complaint and alleges detailed facts -

the Franciscan corporate practice of concealing the identities of their pedophilic brethren and transferring them into unexpecting communities - and theories

- the continuing Public Nuisance created by this conduct - that set it apart from any prior pleading ever addressed in this coordination or any other court.

Thus, while the complaint may meet the threshold requirement, the balancing test which is the next and final step in the process merits denying the Request for Add On. Justice will be denied, and children will be placed at risk, if the subject lawsuit is transferred from Santa Barbara to Los Angeles.

B. Promoting The Ends Of Justice - The Balancing Test.
Once the threshold requirement is satisfied, the coordination judge must determine whether coordination will serve to "promote the ends of justice." Code of Civ. Proc. ' 404.1 mandates that the coordination judge take into account:

(1) whether the common question of fact or law is predominating and significant to the litigation;

(2) the convenience of the parties, witnesses, and counsel;

(3) the relative development of the actions and the work product of counsel;

(4) the efficient utilization of judicial facilities and manpower;

(5) the calendar of the courts;

(6) the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and

(7) the likelihood of settlement of the action without further litigation should coordination be denied.
Consideration of these factors involves a "weighing and balancing . . . to determine whether coordination . . . best serves the ends of justice in the particular case." Pesses v. Superior Court, 107 Cal.App.3d 117, 126 (1980). Here, denying the request for coordination will best serve the ends of justice.

(1) The Unique Questions Of Fact And Law In Plaintiff's Case Are Predominating And Significant.

Defendants all but concede this point, but attempt to minimize their concession by labeling the Public Nuisance cause of action as a creatively adde "attempt to plead around the >Hightower= bar.

The focus of the First Amended Complaint is the pattern of conduct of the Franciscan hierarchy. The abuse of plaintiff is a symptom of that conduct, and gives her standing as one of the special injuries required for her to prosecute a nuisance claim on behalf of the general public. No court, in the coordination or otherwise, has ever issued an order addressing the viability of the nuisance theory in this context with these facts. These unique questions of fact and law are predominant and significant, and distinguish this lawsuit from any other in the coordination.

Accordingly, this factor weighs against granting the Franciscans’ request.

(2) The Inconvenience To The Parties, Witnesses, And Counsel Merits Denial Of The Petition.

The witnesses, parties, and counsel will be substantially inconvenienced if forced to participate in the coordinated action in Los Angeles.

At the start of this coordinated proceeding in 2003, three of the four law firms representing twenty-five survivors (25) of Franciscan sexual abuse were located in the counties of Los Angeles and Orange. Those three law firms filed lawsuits against the Franciscans in Los Angeles. A number of the twenty-five survivors of Franciscan sexual abuse also lived in the counties of Los Angeles and Orange. And defense counsel for the Franciscans were located in downtown Los Angeles. Thus, prior to the 2006 Franciscan global settlement, there was at least an argument to be made that convenience of the parties, witnesses, and counsel supported coordination of the Franciscan lawsuits.

Now, to plaintiff’s counsel’s knowledge, this is the only currently pending Franciscan lawsuit in California. Plaintiff Mary Jones lives in Northern California in Fairfax. Defendant Old Mission is located in Santa Barbara, with its agent for service of process in Oakland, CA. Defendant Franciscans’ corporate offices are located in Oakland. The Franciscans’ new defense counsel are located in San Francisco. Plaintiff’s counsel are located in Santa Barbara. And most if not all of the key witnesses of which plaintiff’s counsel are aware are located in Santa Barbara or Northern California.

In fact, out of the twenty-eight (28) depositions taken in Franciscan cases litigated in the coordinated proceedings, only four (4) took place in Los Angeles, with the vast majority going forward in and/or far north of Santa Barbara. Accordingly, with the global settlement of the twenty-five Franciscan claims in 2006, the convenience factor now weighs strongly against coordination.

(3) The Status Of Plaintiff’s Lawsuit Case Does Not Support The Franciscans’ Request For Coordination.
Plaintiff’s lawsuit is at a preliminary stage of development. Defendants recently accepted service, and have not yet filed their responsive pleading. Plaintiff was about to serve written discovery when Defendants filed their Request for Add On and Stay. Plaintiff also was about to notice depositions for witnesses whose health and age create the risk their testimony may be lost. In short, the Request for Add
On and Stay has already delayed and slowed the proceedings. Additionally, as the only currently filed Franciscan lawsuit, and the only clergy abuse lawsuit proceeding on a Public Nuisance theory, this lawsuit cannot be consolidated with like cases in a single, efficient forum. To the contrary, there are no like cases to consolidate it with.

(4) Coordination Will Not Foster The Efficient Utilization of Judicial Facilities And Manpower, And Minimize The Burden Upon The Calendar Of The Courts.
Coordination will not result in a more efficient use of judicial resources. This lawsuit shares no common defendants with any other currently filed lawsuits. While there are some common factual allegations with current coordinated lawsuits, none of those coordinated lawsuits are based on allegations and evidence of a continuing Public Nuisance. Accordingly, as there is no risk of multiple courts making disparate rulings related to the continuing Public Nuisance theory, coordination will not result in a more efficient use of judicial resources.

It is also worth noting that courts around the state and outside the coordination continue to rule on the same issues that the Franciscans contend must be decided only by this Court. Five years of coordination have produced a substantial body of caselaw to guide these courts. There will be no duplication of effort if this case proceeds separately. The resolution of this lawsuit can be accomplished just as efficiently by the Santa Barbara trial court.

(5) There Is No Risk Of Duplicative Or Inconsistent Rulings, Orders, And Judgments.

Whereas the remaining coordinated lawsuits have as their foundations childhood sexual abuse by a Roman Catholic Priest or brother, such abuse in Plaintiff’s lawsuit is simply one of the special injuries required for plaintiff to prosecute a Public Nuisance claim on behalf of the general public. The foundation for Plaintiff’s lawsuit is the Franciscan corporate practice of concealing the identities of their pedophilic brethren and transferring them into unsuspecting communities. Plaintiff’s counsel has indisputable evidence of nearly forty-five years of the Franciscans’ corporate practice placing children at risk and creating a continuing Public Nuisance. No other law firm in the history of this coordination has developed such a detailed and continuing history of criminal conduct by a single Roman Catholic entity as a result of ten years investigating and litigating against that entity. As a result, no other firm has filed a lawsuit based on a continuing Public Nuisance. (6) Coordination Will Not Increase The Likelihood Of Settlement Of The Action Without Further Litigation.

Settlement is no more likely in the context of the coordination, and is less likely in Los Angeles than in Santa Barbara.

The parties have already discussed mediation. The Franciscans proposed and plaintiff agreed to mediation dates. Plaintiff even agreed to mediate before, among others, the Honorable Ronald Sabraw, the coordination/trial court judge who presided over Hightower. However, the Franciscans appear to have lost interest in mediation. Adding this case to a coordination proceeding where there are no other Franciscan lawsuits pending will not increase the likelihood of settlement without further litigation. In fact, it likely will decrease the likelihood of settlement.

Numerous communities have seen their children harmed and put at risk by the Franciscan efforts to conceal and cover up their continuing corporate practice of handling their perpetrators. However, with twenty-four Franciscan perpetrators and fifty-nine victims identified since 1964 in a city of approximately 90,000 residents, no city has been harmed more gravely than Santa Barbara. Transferring this case out of Santa Barbara to Los Angeles, a community with a comparably far smaller interest in the Franciscans’ conduct, plays into the Franciscan corporate practice of secrecy by keeping the communities who most need to know in the dark, and will do nothing to enhance the likelihood of settlement. If anything, it will encourage the Franciscans to believe they have once again flown under the radar and will not be held accountable for their conduct in the community where so many of these crimes have been committed. The determination of whether this conduct constitutes a Public Nuisance should be made by a trier of fact from the community in which the conduct occurred.

IV.
DEFENDANTS’ PETITION FOR A STAY OF DISCOVERY SHOULD BE DENIED

Defendants offer no support nor any reason for their request for a discovery stay. While such a stay may have been necessary at one time due to the remarkably high volume of coordinated cases, and the resulting chaos 600+ concurrent discovery disputes could have produced, those high volume days are long since past in Clergy I. Defendants’ sole motivation for requesting the stay is to continue the Franciscans’ ongoing practice of delaying litigation for as long as possible. Obviously, this is not a legitimate basis for requesting a discovery stay.

Additionally, numerous Franciscan witnesses with critical information are aged and infirm, and their testimony is at risk to be lost with each passing day. As a result, Plaintiff will be highly prejudiced by a stay of discovery, particularly where these defendants demand discovery stays while knowing they have and will continue to argue they are incapable of defending themselves due to the loss of key witnesses.

Accordingly, plaintiff requests that Defendants’ request for a discovery stay be denied.

V.
CONCLUSION

Survivors in clergy abuse cases in Northern and Central California are not being deprived of their right to have their lawsuits heard in the communities where the crimes were committed or covered up. Doe v. The Roman Catholic Bishop of Stockton et al., Case No. C057895 was filed in Stockton and is currently pending before the Third District Court of Appeal on statute of limitations issues shared by many of the currently coordinated lawsuits. Similarly, Dengler v. Doe 1, Case No. A116907 was filed in Sonoma and was decided last year by the First Appellate District. And Neff v. Doe 1 et al., involving the same plaintiff’s counsel and defense counsel in this lawsuit, is one of a number clergy abuse cases currently pending in Northern California trial courts. All of these matters have been or will be guided by the substantial body of caselaw generated in this coordinated proceeding, with no plaintiff deprived of his or her right to file their lawsuit where most appropriate.

The Santa Barbara Superior Court has presided over Franciscan litigation in the past, and is just as capable as the courts in Northern and Central California of applying the caselaw produced by the coordinated proceeding.

The Archdiocese of Los Angeles is not a defendant in this lawsuit.

The factors that once supported adding prior Franciscan cases to the coordination are no more.



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The Franciscans’ Request for Coordination is an obvious attempt to avoid being held accountable in a court in the community most victimized by the Franciscan conduct set forth in plaintiff’s First Amended Complaint.
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The Franciscans’ Request for Coordination is an obvious attempt to avoid being held accountable in a court in the community most victimized by the Franciscan conduct set forth in plaintiff’s First Amended Complaint.

Based on the foregoing, plaintiff respectfully requests the Request to Add On Santa Barbara Superior Court Case No. 1265207 and for Stay be denied.

DATED: September 24, 2008

NYE, PEABODY, STIRLING & HALE LLP


By:

DAVID L. NYE
TIMOTHY C. HALE
Attorneys for Plaintiff

DECLARATION OF TIMOTHY C. HALE

I, Timothy C. Hale, declare as follows:

1. I am an attorney duly licensed to practice in all of the courts of the State of California, and am one of the attorneys representing plaintiff Mary Jones in the above action. I am a partner in the law firm of Nye, Peabody, Stirling & Hale, LLP (ANPSH@).

2. I have personal knowledge of the statements set forth in this declaration, except for those stated on information and belief, and if called as a witness in this matter, could and would competently testify thereto.

3. I make this declaration in support of plaintiff’s Opposition to the Request to Add On Santa Barbara Superior Court Case No. 1265207 and for Stay filed by Defendant Franciscan Friars of California, Inc. (AFranciscans@) and Defendant Old Mission Santa Barbara (AOld Mission@).

4. In 1998 the Santa Barbara law firm of Nye, Peabody, Stirling & Hale, LLP, began litigating claims involving the criminal conduct of Franciscan perpetrators and hierarchy in Santa Barbara. I joined the team of lawyers working on the Franciscan cases in 1999.

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5. Since our first lawsuit against the Franciscans their defense strategy has been consistent and unwavering: preserve the Franciscans’ secrets as much as possible by narrowing the focus of each lawsuit filed to one victim and one perpetrator.
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5. Since our first lawsuit against the Franciscans their defense strategy has been consistent and unwavering: preserve the Franciscans’ secrets as much as possible by narrowing the focus of each lawsuit filed to one victim and one perpetrator.

6. After the scandal first broke in Santa Barbara in 1989, the Franciscans’ retained large defense firms, Sedgwick Detert in particular, who utilized their tremendous resources to implement this strategy quite effectively for nearly ten years, battering smaller plaintiffs’ firms into settling lawsuits for relatively small amounts while limiting the focus of discovery to the perpetrator rather than on the enabling conduct of the Franciscan hierarchy.

7. NPSH first filed a lawsuit against the Franciscans in 1998, Allen v. Van Handel et al., Santa Barbara Superior Court Case No. 228296. Early in Allen the Franciscan defense strategy of preserving secrecy by narrowing the focus of each lawsuit to one perpetrator, one victim, became clear. As investigation and discovery continued in Allen the Franciscans’ motivation for pressing this strategy became obvious: the Franciscan hierarchy had allowed the adjoining properties of St. Anthony’s Seminary and the Old Mission Santa Barbara to serve for decades as a feeding ground for Franciscan predators.

8. It also quickly became apparent during Allen that the public remained unaware of the continuing threat posed to their children by the Franciscans. This was due in large part to the Franciscans’ creation of a purportedly independent inquiry in 1994 that actually was a Franciscan-controlled whitewash. The Franciscans’ AIndependent Board of Inquiry@ was tasked with investigating abuse allegations at St. Anthony’s Seminary, the property adjoining the Old Mission in Santa Barbara. The Board issued its report in 1994, confirming there had been twelve Franciscan perpetrators, but identifying none of them. It also made no reference to numerous instances of notice of abuse received by the Franciscans. These omissions were less than surprising given that one of the Board’s member was a Franciscan from another Province, and, more importantly, given that the Franciscans’ Provincial Minister had to approve the report before it was released to the public.

9. As the Sedgwick firm in Allen continued aggressively to press the Franciscan strategy of narrowing the focus of each lawsuit and the scope of discovery to one perpetrator and one victim, our investigation in Allen was revealing a shocking pattern of conduct by Franciscans with regards to their managing Franciscan perpetrators for whom they had received notice were sexually abusing Santa Barbara children.

As a result of the growing body of evidence of the Franciscans’ deadly approach to managing Franciscan perpetrators, and in response to the Sedgwick firm’s continuing efforts to narrow the scope of discovery, the lead trial attorneys for the plaintiff tasked myself and another associate with researching theories of liability to counter the Franciscans’ defense strategy.

10. After substantial legal research it became clear to us the Public Nuisance cause of action was the ideal theory to respond to the Franciscans’ narrowing strategy. Consequently, we sought leave to file a Fourth Amended Complaint alleging the Public Nuisance cause of action in Allen in 2000. Since that date, every complaint we have filed against the Franciscans has included the Public Nuisance cause of action. At the time I drafted the Public Nuisance cause of action, there was no Hightower opinion, nor was there any concern over the statute of limitations for the plaintiff in Allen. The Franciscans’ contention the Public Nuisance cause of action was Acreatively added@ Ato plead around the >Hightower= bar@ is patently false.

However, I do not believe this misstatement was an intentional effort by Tobin & Tobin to mislead the Court. This is not our first case with their firm, and we have always known them to be honest and highly skilled clergy abuse defense attorneys. That said, to my knowledge, they have never represented the Franciscans prior to this lawsuit, and presumably are unaware that NPSH first began alleging the Franciscans’ conduct constituted a continuing Public Nuisance six years before the Hightower opinion was published.

11. To my knowledge, no court has ever issued an order addressing the viability of the Public Nuisance cause of action against the Franciscans. Shortly after the Fourth Amended Complaint was filed in Allen in 2000, the Franciscans settled that lawsuit before the Santa Barbara court could rule on their demurrer to the Public Nuisance cause of action. Since then, the Franciscans have settled fourteen more claims on behalf of plaintiffs represented by NPSH, all resolved before any court addressed the Public Nuisance cause of action.

12. Three lawsuits on behalf of five plaintiffs represented by NPSH were part of the first group of cases released in this coordinated proceeding. Each complaint alleged Public Nuisance. However, all five of those claims settled and were dismissed long before Judge Fromholz ruled on the Omnibus Demurrers. As a result, the court order on the Omnibus Demurrers does not consider or even mention the Public Nuisance cause of action.

13. After nearly eleven years of almost uninterrupted investigation and discovery against the Franciscans we have identified no less than twenty-five (25) Franciscan perpetrators assigned or in residence in Santa Barbara since 1936, and sixty (60) Santa Barbara children who have been sexually assaulted by these men. Twenty-four (24) of those Franciscan perpetrators and fifty-nine (59) of those victims have been in Santa Barbara post -1964.

14. At the start of this coordinated proceeding in 2003, three of the four law firms representing eleven (11) of the twenty-five survivors (25) of Franciscan sexual abuse were located in the counties of Los Angeles and Orange. Those three law firms filed lawsuits against the Franciscans in Los Angeles. A number of the twenty-five survivors of Franciscan sexual abuse also lived in the counties of Los Angeles and Orange. And defense counsel for the Franciscans, Lewis Brisbois, were located in downtown Los Angeles. All of those twenty-five claims were part of the 2006 global settlement involving the Franciscans.

15. To my knowledge this is the only currently pending Franciscan lawsuit in California. Plaintiff Mary Jones lives in Northern California in Fairfax. Defendant Old Mission is located in Santa Barbara, with its agent for service of process in Oakland, CA. Defendant Franciscans’ corporate offices are located in Oakland. Tobin & Tobin are located in San Francisco. NPSH is located in Santa Barbara. And most if not all of the key witnesses of which I am aware are located in Santa Barbara or Northern California. In fact, out of the twenty-eight (28) depositions taken in Franciscan cases in the coordinated proceedings, only four (4) took place in Los Angeles, with the vast majority going forward in and/or far north of Santa Barbara.

16. Settlement is much less likely to occur if this case is litigated in Los Angeles rather than in Santa Barbara. The parties have already discussed mediation. The Franciscans proposed and plaintiff agreed to mediation dates. Plaintiff even agreed to mediate before, among others, the Honorable Ronald Sabraw, the coordination/trial court judge who presided over Hightower. However, the Franciscans appear to have lost interest in mediation. Adding this case to a coordination proceeding where there are no other Franciscan lawsuits pending will not increase the likelihood of settlement without further litigation.

In fact, it likely will decrease the likelihood of settlement. Transferring this case out of Santa Barbara to Los Angeles, a community with a comparably far smaller interest in the Franciscans’ conduct, plays into the Franciscan corporate practice of secrecy by keeping the communities who most need to know in the dark, and will do nothing to enhance the likelihood of settlement. If anything, it will encourage the Franciscans to believe they have once again flown under the radar and will not be held accountable for their conduct in the community where so many of these crimes have been committed. The determination of whether this conduct constitutes a Public Nuisance should be made by a trier of fact from the community in which the conduct occurred.

17. Survivors in clergy abuse cases in Northern and Central California are not being deprived of their right to have their lawsuits heard in the communities where the crimes were committed or covered up. Doe v. The Roman Catholic Bishop of Stockton et al., Case No. C057895 was filed in Stockton and is currently pending before the Third District Court of Appeal on statute of limitations issues shared by many of the currently coordinated lawsuits. Similarly, Dengler v. Doe 1, Case No. A116907 was filed in Sonoma and was decided last year by the First Appellate District. And Neff v. Doe 1 et al., involving NPSH and Tobin & Tobin, is one of a number clergy abuse cases of which I am aware that currently are pending in Northern and Central California trial courts.

18. The Santa Barbara Superior Court has presided over Franciscan litigation, such as Allen, in the past, and is just as capable as the courts in Northern and Central California of applying the caselaw produced by the coordinated proceeding.

19. As a result of discovery conducted to date, I am aware of numerous Franciscan witnesses with critical information who are aged and infirm, and whose testimony is at risk to be lost with each passing day. For instance, Br. Sam Cabot, the likely perpetrator in this case, has had open-heart surgery in recent years and is known to be in poor health. The Provincial Ministers who are responsible for this pattern of conduct are all, with one possible exception, in their late 60s, 70s, and in some cases, 80s. As a result, plaintiff will be highly prejudiced by a stay of discovery.

I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on this 19th day of September 2008, at Santa Barbara, California.

TIMOTHY C. HALE