Emens v. Cal. Catholic Conference CA2/2

Filed 12/24/20 Emens v. Cal. Catholic Conference CA2/2
(unmodified opinion attached)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THOMAS EMENS, B297322

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC723908)
v.
ORDER MODIFYING
CALIFORNIA CATHOLIC OPINION AND DENYING
CONFERENCE et al., REHEARING

Defendants and NO CHANGE IN
Appellants. JUDGMENT

THE COURT:
It is ordered that the opinion filed herein on December 3,
2020, be modified as follows:

1. On page 14, bottom of the page, and continuing on to the
top of page 15, the sentence that begins with “Here, it is
undisputed” insert the phrase “or promptly” in between the
 words “previously” and “disclosed” so the sentence reads as
follows:
Here, it is undisputed that a majority of the Church
defendants for the first time publicly disclosed the
names of priests credibly accused of sexual abuse
after this lawsuit was filed; this first-time disclosure
strongly suggests that those defendants had not
previously or promptly disclosed those names and
crimes, including to the authorities, in violation of
California law.

2. On page 15, top of the page, delete the following sentence:
The Church defendants did not, in their reply,
dispute the fact that they had not disclosed the
priests on these lists to law enforcement.

3. On page 15, immediately following the sentence modified in
point one above, insert the following language after the
sentence ending with “in violation of California law” and
before the sentence beginning with “Thus, whether it is
deemed to be conceded or conclusively established”:
Although a report of abuse to law enforcement is
confidential (Pen. Code § 11167, subd. (d)(1)), the
uncontested inference that the Church defendants
violated their reporting duties (and, therefore,
relinquished any “protected activity” shield), is
dictated by the record. In their reply in support of
their anti-SLAPP motion, the Church defendants
neither refuted plaintiff’s recounting of specific
instances of delayed disclosures to law enforcement

2
 that allowed some priests to flee from the country nor
disputed plaintiff’s assertion that they had not
disclosed to law enforcement all of the priests whose
names appeared in the public disclosures. Indeed,
the San Bernardino Diocese’s public disclosure itself
revealed that, in several instances, the Diocese
reported abuse to law enforcement long after learning
of the abuse.

4. On page 15, the sentence beginning with “Thus, whether”
insert “alleged” between “Church defendants’” and
“failure”; and insert “all of” between “report” and “the prior
crimes” so the sentence reads as follows:
Thus, whether it is deemed to be conceded or
conclusively established, the Church defendants’
alleged failure to report all of the prior crimes to the
pertinent authorities is illegal as a matter of law and,
thus, not “protected activity” within the meaning of
the anti-SLAPP statute.

* * *

There is no change in the judgment.
Appellants’ petition for rehearing is denied.

——————————————————————————————
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.

3
Filed 12/3/20 Emens v. California Catholic Conference CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THOMAS EMENS, B297322

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC723908)
v.

CALIFORNIA CATHOLIC
CONFERENCE et al.,

Defendants and
Appellants.

APPEAL from an order of the Superior Court of Los
Angeles County, Michelle Williams Court, Judge. Affirmed in
part and reversed and remanded in part with directions.

McKool Smith Hennigan, J. Michael Hennigan, Lee W.
Potts and Elizabeth S. Lachman for Defendants and Appellants
The California Catholic Conference, Inc. and The Roman Catholic
Archbishop of Los Angeles.
 Weintraub Tobin Chediak Coleman Grodin, Paul E.
Gaspari, Daniel C. Zamora and Brendan J. Begley for Defendants
and Appellants The Roman Catholic Archbishop of San
Francisco, The Roman Catholic Bishop of Monterey, and The
Roman Catholic Bishop of San Jose.

McCormick Barstow and Mart B. Oller, IV for Defendant
and Appellant The Roman Catholic Bishop of Fresno.

Foley & Lardner, Jeffrey R. Blease, David B. Goroff (pro
hac vice) and Nicholas P. Honkamp for Defendant and Appellant
The Roman Catholic Bishop of Oakland.

Sheppard, Mullin, Richter & Hampton, Alan H. Martin,
Jason A. Weiss and Karin Dougan Vogel for Defendant and
Appellant The Roman Catholic Bishop of Orange.

Greene & Roberts and Stephen J. Greene, Jr. for Defendant
and Appellant The Roman Catholic Bishop of Sacramento.

Fullerton, Lemann, Schaefer & Dominick, Wilfrid C.
Lemann and David P. Colella for Defendant and Appellant The
Roman Catholic Bishop of San Bernardino.

Gordon Rees Scully Mansukhani, Manuel Saldana and M.
Christopher Hall for Defendant and Appellant The Roman
Catholic Bishop of San Diego.

Shapiro, Galvin, Shapiro & Moran, Adrienne M. Moran and
Daniel J. Galvin, III for Defendant and Appellant The Roman
Catholic Bishop of Santa Rosa.

Jeff Anderson & Associates, Michael J. Reck, Michael G.
Finnegan; Arkin Law Firm and Sharon J. Arkin for Plaintiff and
Respondent.
******

2
 A man who was molested by a Catholic monsignor as a
child sued various Catholic Church organizations in California to
enjoin the Church’s alleged policy of concealing and lying about
the proclivities of its priests to sexually abuse children. The
Church organizations filed a motion to dismiss the man’s causes
of action under the anti-SLAPP statute (Code Civ. Proc.,
§ 425.16).1 The trial court partially granted and partially denied
the motion, striking some but not all of the allegations
underlying the man’s causes of action. The Church organizations
appeal, arguing that the court should have dismissed the man’s
action in full. We largely affirm the trial court’s rulings on the
anti-SLAPP motion, but agree with the Church organizations
that a remand for further proceedings on the man’s currently
pled causes of action would be futile in light of the trial court’s
unchallenged findings that those causes of action are fatally
deficient. Accordingly, we direct the trial court to dismiss the
currently pled causes of action in their entirety. However, on
remand, the man should be given the opportunity to amend his
complaint.
FACTS AND PROCEDURAL BACKGROUND
I. The Complaint
A. General allegations
On October 2, 2018, Thomas Emens (plaintiff) sued eleven
subdivisions of the Catholic Church within California (namely,

1 “SLAPP” is short for Strategic Lawsuit Against Public
Participation.
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.

3
two Archdioceses and nine Dioceses)2 as well as the California
Catholic Conference (the Conference), which is the body that
“coordinat[es], create[es], decid[es], and disseminat[es]” the
policies to be followed by those subdivisions.3 Plaintiff alleged
that all 12 defendants (collectively, the Church defendants) were
“co-conspirators” that made collective “[d]ecisions” as “part of a
cohesive and coordinated plan.”
B. Alleged misconduct
Plaintiff alleges that the Church defendants have, “for
decades,” “endangered numerous children” by adopting and
implementing “policies and practices of covering up” the criminal,
sexual misconduct of their priests. Plaintiff specifically identifies
what boils down to four such policies and practices:
(1) Failing to report sexual molestation crimes. Plaintiff
alleges that the Church defendants have “fail[ed] to report known
and/or suspected sexual abuse of children” by priests and other
“agents” (a) “to the police and law enforcement,” and (b) to “the
proper civil authorities”;
(2) Continuing to employ priests who have engaged in
sexual molestation conduct. Plaintiff alleges that the Church
defendants “have maintained and continue to maintain sexually
abusive priests in employment despite knowledge or suspicions of

2 Specifically, plaintiff sued the Archdioceses of Los Angeles
and San Francisco, and the Dioceses of Sacramento, Santa Rosa,
Oakland, San Jose, Monterey, Orange, San Bernardino, San
Diego, and Fresno.

3 Plaintiff also sued the Archdiocese of Chicago, but later
dismissed it.

4
child sex abuse,” and do so by “transferring [those priests] to new
locations”;
(3) Deceiving the public, parishioners and prior victims of
their priests’ sexual abuse—through affirmative
misrepresentations and concealment—about past and present
sexual abuse by their priests. Plaintiff alleges that the Church
defendants have assured prior victims of their priests’ sexual
abuse, their parishioners and the public in general that (a) the
Church defendants have competently addressed the issue of
sexual abuse by priests by adopting and implementing policies of
promptly responding to sexual abuse allegations, reporting such
allegations to the authorities and to the public, cooperating with
resulting investigations, and disciplining offenders, (b) sexual
abuse by priests is “a problem of the past,” and (c) the Church
defendants’ programs for children, and the communities in which
the priests live, are accordingly “safe[]” for children because the
priests are “fit[] for employment in positions that include working
with children.” Plaintiff further alleges that these assurances
amount to affirmative misrepresentations and concealment
because, as noted above, the Church defendants continue to
employ priests who have engaged in sexual abuse, continue to
conceal their crimes from the criminal and civil authorities, and
continue not to disclose information about those crimes to prior
victims, their parishioners and the public;
(4) Attacking the credibility of victims of their priests’
sexual abuse. Plaintiff alleges that the Church defendants make
affirmative misrepresentations “attack[ing] the credibility of [the]
victims of” their priests’ prior sexual abuse.

5
 C. Causes of action
Based on the above described conduct, plaintiff’s complaint
alleges claims for (1) public nuisance, and (2) civil conspiracy.4
As the basis for the public nuisance claim, plaintiff alleges
that the Church defendants’ practices constitute a public
nuisance that is “injurious” to the “health, safety, and welfare of
the general public” because those practices of “deception and
concealment” “create[]” and “expose[]” “the public to . . . unsafe
conditions” by placing “children . . . at risk of being sexually
assaulted.” Plaintiff further alleges that the Church defendants’
practices were “specially injurious” to him because they caused
him heightened “mental, emotional and/or physical distress” as a
victim of molestation by a Catholic priest in the late 1970s.
As the basis for the civil conspiracy claim, plaintiff alleges
that the Church defendants’ practices are part of a “civil
conspiracy to conceal the true nature of [the] sexual abuse of
minors in the Dioceses across California.”
In the complaint, plaintiff prays for compensatory damages,
and an injunction requiring the Church defendants “to publicly
release the names of all . . . priests[] accused of child
molestation,” along with those priests’ “history of abuse,” “pattern
of grooming and sexual behavior,” and “last known address.”
II. The Anti-SLAPP Motion
In late December 2018, the Church defendants filed an
anti-SLAPP motion requesting that the trial court strike

4 Plaintiff also alleged a claim for private nuisance, but has
affirmatively abandoned it on appeal. In light of that
abandonment, we order the trial court to dismiss that claim on
remand.

6
plaintiff’s entire complaint.5 In that motion, the Church
defendants included a copy of the charter setting forth the
Church defendants’ official policy for responding to allegations of
sexual abuse by their priests; the charter was initially drafted in
2002 and is periodically updated. Plaintiff opposed the motion.
Along with his opposition, plaintiff attached evidence that seven
of the Church defendants had—since the filing of this lawsuit—
publicly released lists naming priests who had been credibly
accused of engaging in sexual abuse. The Church defendants
replied.6
Following a hearing in March 2019, the trial court issued
an April 2019 order partially granting and partially denying the
anti-SLAPP motion.
As a threshold matter, the court ruled that some of
plaintiff’s claims were based in part upon activity protected by
the anti-SLAPP statute, and some were not. Specifically, the
court concluded that the allegations involving misrepresentations
and concealment by the Church defendants, as well as false
speech about the victims, constituted “protected activity” because
this alleged conduct “implicate[d]” the Church defendants’ First
Amendment “right of free speech, including the right not to

5 The Conference and the Archdiocese of Los Angeles filed
the lead anti-SLAPP motion and the lead reply, which the other
Church defendants joined.

6 The Church defendants also filed several evidentiary
objections to the exhibits accompanying plaintiff’s opposition, but
the trial court did not rule on them. Because our analysis does
not depend on this evidence, we decline the parties’ invitations to
review these evidentiary objections in the first instance.

7
speak.” At the same time, the court concluded that the
allegations involving concealment of sexual abuse “from [the]
authorities” and allowing priests with histories of sexual abuse to
continue to serve in “assignments which included working with
children” were not “protected activity” because “[p]rotecting
abusers from criminal prosecution is neither free speech nor
petition” and because “affirmative representations of the fitness”
of priests for certain assignments “is not an issue of free speech,
but an issue of false speech.”
Because plaintiff’s claims were based in part upon
“protected activity,” the trial court next examined whether
plaintiff’s claims had “minimal merit.” The court concluded they
did not. The public nuisance claim failed because plaintiff did not
establish his standing to prosecute such a claim because his
injury—namely, “his emotional distress”—was “merely different
in degree,” not “different in kind” from the injury the Church
defendants’ alleged conduct inflicted upon the general public.
The civil conspiracy claim failed because it requires a viable
claim for an “underlying tort,” and plaintiff’s public nuisance
claim was not viable.
III. Appeal
The Church defendants filed this timely appeal. Plaintiff
did not appeal.
DISCUSSION
In this appeal, the Church defendants argue that the trial
court erred (1) in not dismissing plaintiff’s entire complaint under
the anti-SLAPP statute because all of plaintiff’s allegations
constitute “protected activity” within the meaning of the statute,
and (2) in not otherwise dismissing plaintiff’s entire complaint
once the court determined that his public nuisance and civil

8
conspiracy claims are fatally flawed. We independently review a
trial court’s denial of an anti-SLAPP motion. (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1067 (Park); Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th
871, 884-885 (Wilson).) We also independently review the
question whether dismissal is warranted even apart from the
anti-SLAPP statute because that question turns on issues of law
and the application of that law to undisputed facts. (Compulink
Management Center, Inc. v. St. Paul Fire & Marine Ins. Co.
(2008) 169 Cal.App.4th 289, 295.) In undertaking this
independent review, we are not bound by the trial court’s
reasoning. (Williams v. Superior Court (2013) 221 Cal.App.4th
1353, 1361.)
I. The Anti-SLAPP Motion
The Church defendants contend that their alleged conduct
in failing to report sexual molestation crimes to the authorities
and continuing (through transfers) to employ priests who have
engaged in sexual abuse constitutes “protected activity” within
the meaning of the anti-SLAPP statute. Plaintiff not only
disputes this contention, but devotes a substantial portion of his
briefing to arguing that other portions of the trial court’s ruling
should be reversed in his favor because (1) none of the Church
defendants’ conduct was “protected activity,” and (2) his public
nuisance and civil conspiracy claims have minimal merit. We
decline to consider plaintiff’s arguments for reversal because he
did not appeal; as such, his arguments are not properly before
us.7 (Estate of Powell (2000) 83 Cal.App.4th 1434, 1439 [party

7 Those arguments—which fall into three broad categories—
lack merit in any event. First, plaintiff asserts that the
“gravamen” and “thrust” of his public nuisance claim is not

9
“protected activity” within the meaning of the anti-SLAPP
statute because his claim is aimed at what the Church
defendants are “doing” to harbor pedophilic priests or “failing to
do” in protecting children; the allegations of affirmative
misrepresentations and concealment, plaintiff continues, are
merely evidence of the Church defendants’ action and inaction.
Although the distinction plaintiff draws between the conduct a
claim is “based upon” and the conduct that “provide[s]
evidentiary support for [a] claim” is a valid distinction (Park,
supra, 2 Cal.5th at pp. 1063-1064; Wilson, supra, 7 Cal.5th at p.
884; Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610,
621 (Rand Resources)), it is irrelevant here because (1) the
conduct a claim is “based upon” is the conduct that causes injury
(Park, at p. 1063; Mission Beverage Co. v. Pabst Brewing Co.,
LLC (2017) 15 Cal.App.5th 686, 698 (Mission Beverage)), and (2)
plaintiff has alleged that the Church defendants’ conduct in
affirmatively misrepresenting and concealing its practices (as
well as defaming victims) is what is causing the public nuisance
(and, by extension, the civil conspiracy). What is more, a person’s
conduct in making affirmative misrepresentations or in
concealing facts (that is, by not speaking) each constitutes
“protected activity.” (E.g., Kronemyer v. Internet Movie Database
Inc. (2007) 150 Cal.App.4th 941, 947 (Kronemyer) [“the right of
free speech” and “the right not to speak” is protected activity
under the anti-SLAPP statute]; Hecimovich v. Encinal School
Parent Teacher Organization (2012) 203 Cal.App.4th 450, 464
[false statements and defamation constitute protected activity
under anti-SLAPP statute].) Second, plaintiff urges that his
public nuisance and civil conspiracy claims have “minimal merit”
sufficient to withstand the anti-SLAPP motion. However, it is
well settled that a public nuisance claim may be prosecuted only
by a person who has suffered a “special[] injur[y]” “different in
kind from that suffered by the general public.” (Civ. Code,
§ 3493; Venuto v. Owens-Corning Fiberglass Corp. (1971) 22
Cal.App.3d 116, 124, italics omitted; see generally, Rest.2d Torts,

10
who does not appeal cannot argue for reversal of trial court’s
ruling]; Valentine v. Plum Healthcare Group, LLC (2019) 37
Cal.App.5th 1076, 1090, fn. 4 [same].)
A. The anti-SLAPP statute, generally
The anti-SLAPP statute “provides a procedure for weeding
out, at an early stage, meritless claims arising from protected
activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) When a
party moves to strike a cause of action, or a portion thereof,
under the anti-SLAPP statute, the trial court has two tasks.
(Barry v. State Bar of California (2017) 2 Cal.5th 318, 321.)
“First, the court must evaluate whether the moving party has
‘made a threshold showing that the challenged cause of action
arises from protected activity.’” (Mission Beverage, supra, 15
Cal.App.5th at pp. 697-698, quoting Rusheen v. Cohen (2006) 37
Cal.4th 1048, 1056.) “Second, and only if the court concludes that
the litigant has made this ‘threshold showing,’ the court must

§ 821C & com. b.) Here, the special injury plaintiff alleges is
mental anguish that, due to his prior victimization, is greater
than that of the general public; but it is of the same kind and
hence insufficient to sustain a public nuisance (or derivative civil
conspiracy) claim. (Koll-Irvine Center Property Owners Assn. v.
County of Orange (1994) 24 Cal.App.4th 1036, 1040-1041 [so
holding]; see Doe 5 v. Diocese of Duluth (Minn. Dist. 2014) 2014
Minn. Dist. LEXIS 14, *10-*12 [rejecting nearly identical public
nuisance claim due to lack of special injury].) Lastly, plaintiff
argues that it is possible to view the allegations in his complaint
as asserting a viable claim for intentional infliction of emotional
distress. But doing so would require us to re-write his complaint
to allege a claim he does not allege, and such amendments are
impermissible as a means of avoiding dismissal under the anti-
SLAPP statute. (Contreras v. Dowling (2016) 5 Cal.App.5th 394,
411-412.)

11
examine whether the nonmoving party has . . . demonstrate[d]
that [its] challenged cause[s] of action hav[e] ‘minimal merit.’”
(Id. at p. 698, quoting Navellier v. Sletten (2002) 29 Cal.4th 82,
94.)
The initial, threshold step of assessing whether a cause of
action arises from protected activity “turns on two subsidiary
questions: (1) What conduct does the challenged cause of action
‘arise[] from’; and (2) is that conduct ‘protected activity’ under the
anti-SLAPP statute?” (Mission Beverage, supra, 15 Cal.App.5th
at p. 698.)
“A cause of action ‘arises from’ protected activity when the
‘cause of action itself’ is ‘based on’ protected activity. [Citations.]
Whether a cause of action is itself based on protected activity
turns on whether its “‘“principal thrust or gravamen”’” is
protected activity—that is, whether the “‘core injury-producing
conduct”’ warranting relief under that cause of action is protected
activity.” (Ibid., quoting City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78; Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1114; Colyear v. Rolling Hills Community
Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 134; see
also Park, supra, 2 Cal.5th at p. 1063; Martinez v. Metabolife
Internat., Inc. (2003) 113 Cal.App.4th 181, 192.)
As pertinent here, the anti-SLAPP statute generally
defines “protected activity” to include “any . . . conduct in
furtherance of the exercise of the [federal or California]
. . . constitutional right of free speech in connection with a public
issue or an issue of public interest.” (§ 425.16, subd. (e)(4); see
also id., subd. (b)(1).) Also as pertinent here, whether an issue is
“of public interest” looks to “whether the subject of the speech or
activity ‘was a person or entity in the public eye’ or ‘could affect

12
large numbers of people beyond the direct participants,’
[citations]; and whether the activity ‘occur[red] in the context of
an ongoing controversy, dispute or discussion’ [citation].”
(FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145
(FilmOn.com); Rand Resources, supra, 6 Cal.5th at p. 621.)
Whether a party’s conduct is “in connection” with that issue of
public interest turns on whether “it contributes to—that is,
‘participat[es]’ in or furthers—[the] public conversation on the
issue.” (FilmOn.com, at pp. 151-152; Wilson, supra, 7 Cal.5th at
p. 900.)
B. Analysis
Because the trial court has already determined that
plaintiff’s public nuisance and civil conspiracy claims lack
minimal merit (and plaintiff has not appealed that
determination), and because those claims are both “based on” the
Church defendants’ alleged conduct in failing to report sexual
molestation crimes to the proper authorities and in continuing to
employ priests who engaged in sexual molestation, the Church
defendants’ argument on appeal boils down to whether those two
types of conduct—that is, failing to report sexual molestation
crimes to the proper authorities and continuing to employ priests
who have engaged in sexual molestation—constitute “conduct in
furtherance of the exercise of the . . . constitutional right of free
speech in connection with an . . . issue of public interest.”
They do not.
The failure to report sexual molestation crimes to the
proper authorities is not conduct in furtherance of the
constitutional right to speech—and hence not “protected activity”
within the meaning of the anti-SLAPP statute—because it
constitutes a crime in California whose commission is

13
conclusively established in this case. Except for clergy who
acquire their knowledge in the course of a penitential
communication, members of the clergy have since 1997 been
required by law to report any known or reasonably suspected
“child abuse or neglect” to local law enforcement and/or the
“county welfare department.” (Pen. Code, §§ 11166, subd. (a),
11165.7, subd. (a)(32) [clergy are “mandated reporters” unless
they acquire their knowledge from a penitential communication],
11166, subd. (d)(1) [same]; Stats. 1996, ch. 1081, § 3.5; Conley v.
Roman Catholic Archbishop (2000) 85 Cal.App.4th 1126, 1131
[discussing Legislature’s addition of clergy to list of mandated
reporters].) The failure to report is itself a misdemeanor. (Pen.
Code, § 11166, subd. (c); cf. Monaghan v. Roman Catholic Diocese
of Rockville Ctr. (N.Y. App. Div. 2018) 165 A.D.3d 650, 653 [in
New York, clergy are not “mandatory reporters”].) It is akin to
misprision of a felony and, as such, “‘generally falls outside the
protections of the First Amendment.’” (United States v.
Baumgartner (6th Cir. 2014) 581 Fed. Appx. 522, 530; see
generally Branzburg v. Hayes (1972) 408 U.S. 665, 697 [noting
that “concealment of crime” is not “afford[ed] . . . First
Amendment protection”].) Although the mere allegation that
conduct that is otherwise “protected activity” is unlawful or
illegal does not, by itself, deprive the conduct of its “protected
activity” status under the anti-SLAPP statute (Collier v. Harris
(2015) 240 Cal.App.4th 41, 53-54), that conduct does lose its
“protected activity” status “when the defendant concedes or the
evidence conclusively establishes the defendant’s conduct is
illegal as a matter of law” (id. at p. 54; Flatley v. Mauro (2006) 39
Cal.4th 299, 320). Here, it is undisputed that a majority of the
Church defendants for the first time publicly disclosed the names

14
of priests credibly accused of sexual abuse after this lawsuit was
filed; this first-time disclosure strongly suggests that those
defendants had not previously disclosed those names and crimes,
including to the authorities in violation of California law. The
Church defendants did not, in their reply, dispute the fact that
they had not disclosed the priests on these lists to law
enforcement. Thus, whether it is deemed to be conceded or
conclusively established, the Church defendants’ failure to report
the prior crimes to the pertinent authorities is illegal as a matter
of law and, thus, not “protected activity” within the meaning of
the anti-SLAPP statute.
Continuing to employ priests who have engaged in sexual
abuse through clandestine personnel transfers is also not
“protected activity” within the meaning of the anti-SLAPP
statute because the Church defendants’ behind-the-scenes
employment and staffing decisions are typically unrelated to free
speech and, in this case, in no way contributed to the public
debate on the issue of sexually abusive priests. (McConnell v.
Innovative Artists Talent & Literary Agency, Inc. (2009) 175
Cal.App.4th 169, 176-177 [conduct in transferring employees does
not constitute “protected activity”]; Wilson, supra, 7 Cal.5th at p.
896 [conduct in making “staffing decision[s]” typically not
“protected activity”]; cf. Wilson, at p. 898 [conduct in terminating
employee may constitute “protected activity” when employer is a
news agency and termination was designed to affect the
employer’s reputation with respect to the content it publishes].)
Although the Church defendants offer no argument
regarding why the inter-church transfers constitute protected
activity, they offer three reasons why not reporting sex crimes
does. First, they assert that their refusal to report sexual abuse

15
to the authorities falls within their constitutionally protected
“right not to speak.” (Kronemyer, supra, 150 Cal.App.4th at p.
947.) This assertion ignores that even constitutionally protected
speech (or silence) is unprotected where, as here, it is concededly
or conclusively illegal. Second, the Church defendants contend
that the trial court made no express finding that their conduct
was illegal. This is irrelevant, as we are reviewing the issue de
novo and are not bound by the trial court’s findings or lack of
findings. Lastly, the Church defendants argue that the trial
court erred in making a “normative evaluation” of the “substance
of the speech” when it ruled that “there is no right to conceal
sexual assaults from the authorities.” Although the Church
defendants are correct that what matters in assessing whether
conduct constitutes “protected activity” is the conduct itself and
not its motive (Wilson, supra, 7 Cal.5th at pp. 888-889), the
conduct of not reporting the sexual assaults on children is illegal
as a matter of law regardless of motive. As such, it is not
“protected activity.”
In sum, the trial court properly ruled that the allegations
regarding the Church defendants’ failure to report crimes and
transfer of priests did not constitute “protected activity,” and
properly allowed plaintiff’s lawsuit to move forward to the extent
his public nuisance and civil conspiracy claims are based on that
unprotected activity.
II. Dismissal of Lawsuit
Because some of the allegations upon which plaintiff’s
public nuisance and civil conspiracy claims are based involve
activity that is not protected by the anti-SLAPP statute, that
statute does not empower the trial court to dismiss those claims
in their entirety. (§ 425.16, subd. (b)(1); Wilson, supra, 7 Cal.5th

16
at p. 881 [where “plaintiff’s claims arise in limited part—though
not in whole—from protected activity,” defendant is “entitled to a
determination of whether those limited portions . . . have
sufficient potential merit to proceed”], italics added.)
The Church defendants nevertheless urge that the trial
court’s finding that plaintiff’s public nuisance and civil conspiracy
claims lack merit warrants dismissal of those claims in their
entirety. For support, they cite Roberts v. Los Angeles County
Bar Assn. (2003) 105 Cal.App.4th 604, 615-616 (Roberts), Thomas
v. Quintero (2005) 126 Cal.App.4th 635, 641-642 (Thomas),
Manchel v. County of Los Angeles (1966) 245 Cal.App.2d 501
(Manchel), and Horacek v. Smith (1948) 33 Cal.2d 186 (Horacek).
These cases are inapt. Roberts and Thomas dismissed a
plaintiff’s entire complaint under the anti-SLAPP statute after
determining that (1) they disagreed with the trial court’s finding
that the plaintiff’s claims were not based on “protected activity,”
and (2) those claims lacked minimal merit. Here, we agree with
the trial court’s finding that portions of plaintiff’s claims are not
based on “protected activity,” so the anti-SLAPP statute gives us
no warrant to proceed to the second step as to those portions.
And Manchel and Horacek have nothing to do with the anti-
SLAPP statute at all; indeed, they pre-dated it by several
decades.
That being said, the trial court’s finding that plaintiff’s
public nuisance and civil conspiracy claims lack merit effectively
means that the Church defendants would, on remand, prevail on
a motion for judgment on the pleadings. A motion for judgment
on the pleadings is appropriate when “‘the face of the complaint’”
and “‘facts capable of judicial notice’” demonstrate that the
complaint does not “state facts sufficient to constitute a cause of

17
action.” (§ 438, subds. (c)(1)(B)(ii), (d); Hart v. Darwish (2017) 12
Cal.App.5th 218, 224.) The trial court’s determination that
plaintiff lacks standing to pursue the public nuisance claim
dooms both that claim and his wholly derivative civil conspiracy
claim, warranting a grant of judgment on the pleadings. To avoid
having the trial court engage in the idle act of entertaining such
a motion on remand when its outcome is a foregone conclusion,
we solicited supplemental briefing from the parties on this issue
and, after considering those arguments, direct the trial court to
dismiss these claims in full. (Stafford v. People (1956) 144
Cal.App.2d 79, 82 [“It would be an idle act to remand the case to
the trial court for further proceedings when . . . plaintiff could not
in any event prevail through any further proceedings in that
court”]; Ena North Beach, Inc. v. 524 Union Street (2019) 43
Cal.App.5th 195, 215 [remand unnecessary where “the result of a
remand is a foregone conclusion”].)
In his supplemental brief, plaintiff (1) objects that the trial
court’s finding of minimal merit applies only to the portions of his
claims found to constitute “protected activity,” (2) acknowledging
the inevitable outcome of a motion for judgment on the pleadings
on remand, argues that it constitutes a “procedural shortcut” that
violates due process, and (3) asserts that he would amend his
complaint, although did not indicate how he would do so until
asked at oral argument. Plaintiff’s first two arguments lack
merit. The defects the trial court identified regarding plaintiff’s
public nuisance and civil conspiracy boil down to his lack of
standing to bring the public nuisance claim (which means there
is no underlying tort to support his civil conspiracy claim); these
defects doom the entirety of those claims. Plaintiff is not being
denied due process. The procedure we are using is amply

18
supported by the precedent cited above, and does not deny
plaintiff notice or an opportunity to be heard, which are the
essence of due process (Today’s Fresh Start, Inc. v. Los Angeles
County Office of Education (2013) 57 Cal.4th 197, 212); indeed,
we specifically notified plaintiff of this potential resolution of the
appeal and solicited his input. Lastly, plaintiff has suggested
that he could amend his complaint to state a claim for emotional
distress. Because the Church defendants have not explained to
us why such a claim is not viable as a matter of law (e.g.,
Komorsky v. Farmers Ins. Exchange (2019) 33 Cal.App.5th 960,
971 [“[l]eave to amend . . . is properly denied . . . if . . . the
proposed amendment would not establish a basis for liability as a
matter of law”]), the rules favoring liberal amendment of
pleadings dictate a remand to give plaintiff the opportunity to so
amend his complaint. (Aubry v. Tri-City Hospital Dist. (1992) 2
Cal.4th 962, 970-971 [“‘great liberality should be exercised in
permitting a plaintiff to amend his complaint’”]; see also § 472c
[request to amend may be made for first time on appeal from
demurrer ruling].) By granting plaintiff leave to amend,
however, we take no position on the viability of his proffered
claim, which is to be examined by the trial court in the first
instance.
Because our dismissal of the causes of action currently pled
in plaintiff’s complaint is not based on the anti-SLAPP statute, it
does not affect whether the Church defendants are entitled to
attorney fees under the statute.

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 DISPOSITION
The order is affirmed in part, and reversed in part with
directions. The trial court is directed to dismiss the plaintiff’s
public nuisance and civil conspiracy claims in their entirety (as
well as plaintiff’s private nuisance claim, which he has
voluntarily abandoned on appeal), and to grant plaintiff leave to
amend. Each party is to bear its own costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
CHAVEZ

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