NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JOHN RK DOE, Plaintiff/Appellant,
v.
THE ROMAN CATHOLIC CHURCH OF THE DIOCESE OF PHOENIX,
et al., Defendants/Appellees.
No. 1 CA-CV 22-0693
FILED 10-26-2023
Appeal from the Superior Court in Maricopa County
No. CV2020-011601
The Honorable Daniel G. Martin, Judge
REVERSED AND REMANDED
COUNSEL
Montoya Lucero & Pastor PA, Phoenix
By Robert E. Pastor
Co-Counsel for Plaintiff/Appellant
Jeff Anderson & Associates PA, St. Paul, MN
By Jeffrey R. Anderson
Co-Counsel for Plaintiff/Appellant
Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Co-Counsel for Plaintiff/Appellant
Lewis Roca Rothgerber Christie LLP, Phoenix
By Nicholas Scott Bauman, John C. Gray
Co-Counsel for Defendant/Appellee The Roman Catholic Church of the Diocese of
Phoenix
Coppersmith Brockelman PLC, Phoenix
By John C. Kelly
Co-Counsel for Defendant/Appellee The Roman Catholic Church of the Diocese of
Phoenix
Jones Skelton & Hochuli PLC, Phoenix
By Donald L. Myles, Jr., James J. Osborne, Patrick C. Gorman, Elizabeth B.
N. Garcia, Ashley E. Caballero-Daltrey
Counsel for Defendants/Appellees USA West Province Society of Jesus and
Brophy College Preparatory
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Michael S. Catlett and Judge Maria Elena Cruz joined.
W E I N Z W E I G, Judge:
¶1 Plaintiff John RK Doe (“Doe”) appeals the superior court’s
order dismissing his amended complaint with prejudice. We reverse and
remand.
FACTS AND PROCEDURAL BACKGROUND
¶2 Brophy College Preparatory (“Brophy”) is a private high
school jointly owned, operated and controlled by the Roman Catholic
Church of the Diocese of Phoenix (“Diocese”) and USA West Province
Society of Jesus (“Society”). Reverend James A. Sinnerud was a Jesuit priest
who taught at Brophy from 1980 to 1987. He was employed by Brophy, the
Diocese and the Society (collectively, the “Defendants”). Doe attended
Brophy as a 13- or 14-year-old freshman in 1986 and 1987. In this lawsuit,
Doe alleges that Sinnerud sexually abused him during that period.
¶3 The Arizona legislature enacted the Arizona Child Victims
Act (the “Act”) in 2019, which revived the statute of limitations for child
victims of sexual abuse to pursue “causes of action” against perpetrators
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DOE v. ROMAN CATHOLIC, et al.
Decision of the Court
and non-perpetrators. See 2019 Ariz. Sess. Laws, ch. 259, § 3(B) (1st Reg.
Sess. 2019) (H.B. 2466). The Act required victims to file their lawsuits on or
before December 31, 2020. Id.
¶4 Doe filed a lawsuit against Sinnerud and the Defendants in
September 2020. He sued Sinnerud for sexual abuse; sued the Defendants
for negligent hiring, training, retention and supervision; and sued Sinnerud
and the Defendants for endangerment, breach of fiduciary duty, intentional
infliction of emotional distress, child abuse and assault.
¶5 The original complaint alleged that Sinnerud had sexually
abused Doe. It also alleged that Defendants knew of misconduct that
created an unreasonable risk of sexual abuse, and that Defendants had a
widespread practice to hide clergy sexual abuse, often transferring clergy
from location to location after learning about their misconduct. The
complaint alleged that happened here, where Defendants transferred
Sinnerud to a Nebraska parish after his alleged abuse of Doe in 1987. The
complaint added that Sinnerud had been terminated by the Nebraska
parish in 2018 after that parish learned about earlier accusations of sexual
misconduct against Sinnerud that predated 1987.
¶6 Doe later filed an amended complaint before the Defendants
filed a responsive pleading. This first amended complaint parroted much
of the original complaint, but it removed Sinnerud as a defendant and
omitted the allegations that the Defendants transferred Sinnerud to a
Nebraska parish, and omitted that the Nebraska parish terminated
Sinnerud after learning of earlier accusations of sexual abuse.
¶7 Defendants moved to dismiss the amended complaint under
Arizona Rule of Civil Procedure 12(b)(6), arguing that Doe’s allegations
were conclusory, and that Doe alleged no earlier misconduct by Sinnerud
to provide the Defendants with actual knowledge that Sinnerud posed a
risk of harm. Doe responded and sought permission from the superior
court to file a second amended complaint, which reiterated the amended
complaint’s allegations. The court denied Doe’s motion to amend,
describing the proposed amendment as futile, and dismissed his complaint
with prejudice. Doe unsuccessfully moved for reconsideration or leave to
amend the complaint to include more facts.
¶8 Doe timely appealed. We have jurisdiction. See Ariz. Const.
art. 6, § 9; A.R.S. § 12-120.21(A)(1).
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DOE v. ROMAN CATHOLIC, et al.
Decision of the Court
DISCUSSION
¶9 Doe argues the superior court erroneously dismissed his
lawsuit with prejudice under Arizona Rule of Civil Procedure 12(b)(6). A
motion to dismiss is reviewed de novo. The Spaulding LLC v. Miller, 250
Ariz. 383, 386, ¶ 9 (App. 2020). We “assume the truth of all well-pleaded
factual allegations and indulge all reasonable inferences from those facts,”
Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012), but will not accept as
true “allegations consisting of conclusions of law, inferences or deductions
that are not necessarily implied by well-pleaded facts, unreasonable
inferences or unsupported conclusions from such facts, or legal conclusions
alleged as facts,” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4 (App. 2005).
¶10 Doe asserted several claims against Defendants under the
Act. That Act revived the limitations period for victims of sexual abuse to
pursue “causes of action” involving “sexual conduct or sexual contact”
against any non-perpetrators who “knew or otherwise had actual notice of
any misconduct that creates an unreasonable risk of sexual conduct or
sexual contact with a minor by an employee, a volunteer, a representative
or an agent.” See 2019 Ariz. Sess. Laws, ch. 259 § 3(B), (C) (1st Reg. Sess.
2019) (H.B. 2466).
¶11 Doe argues that non-perpetrator defendants need only have
actual notice of general misconduct under the Act that created an
unreasonable risk of sexual misconduct to the victim. Defendants contend
the Act requires non-perpetrator defendants to have known or had actual
notice of misconduct by the perpetrator (here, Sinnerud) that created an
unreasonable risk. This court has considered that argument and adopted
Defendants’ interpretation. See Doe v. Roman Cath. Church of the Diocese of
Phx., No. 1 CA-CV 22-0143, 2023 WL 4241197, at *6, ¶ 30 (App. 2023); see
also Doe v. Byzantine Cath. Diocese of Parma, No. CV-21-01424, 2022 WL
1664282, at *3 (D. Ariz. May 25, 2022). The Act requires Doe to allege and
prove the Defendants had actual knowledge that Sinnerud himself posed
an unreasonable risk of sexual conduct with a minor.
¶12 That said, the superior court erroneously dismissed Doe’s
claims with prejudice because Doe’s amended complaint included enough
allegations to state a claim for relief and take discovery. In particular, Doe’s
first amended complaint alleged that (1) Sinnerud had sexually abused Doe,
(2) Defendants knew about misconduct by Sinnerud that created an
unreasonable risk of sexual abuse, (3) Defendants had an internal policy to
hide allegations of clergy sexual abuse and often transferred clergy from
location to location after learning about their misconduct, and (4) Bishop
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DOE v. ROMAN CATHOLIC, et al.
Decision of the Court
Thomas J. O’Brien conceded in a May 2003 written agreement that
Defendants “allowed Roman Catholic priests under [his] supervision to
work with minors after becoming aware of allegations of sexual
misconduct,” and that “priests who had allegations of sexual misconduct
made against them were transferred to ministries without full disclosure to
their supervisor or to the community in which they were assigned.” These
allegations offered the Defendants “fair notice” of the basis for the lawsuit.
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 4 (2008) (citation
omitted).
¶13 Defendants contend the complaint was properly dismissed
with prejudice because it “fail[ed] to identify any prior misconduct by
Father Sinnerud, and instead relies on generalized allegations of
misconduct within the Catholic Church and conclusions of law that are not
properly considered by the Court.” But the Act includes no heightened
pleading requirement, and Arizona Rule of Civil Procedure 9(b) directs that
“[m]alice, intent, knowledge, and other conditions of a person’s mind may
be alleged generally.” Beyond that, the complaint alleged that Defendants
hid all allegations of clergy sexual abuse, which would impair Doe’s ability
to marshal proof of actual knowledge before discovery had begun.
¶14 Defendants also rely on Verduzco v. Am. Valet, 240 Ariz. 221,
225, ¶ 9 (App. 2016) (citation omitted), but their reliance is misplaced
because Verduzco, too, provides that “knowledge, and other condition of
mind of a person may be averred generally.”
¶15 Because the superior court erroneously dismissed Doe’s
lawsuit with prejudice, we reverse and remand. Given our decision, we
need not reach Doe’s arguments about vicarious liability and punitive
damages.
CONCLUSION
¶16 We reverse and remand. As the successful party on appeal,
we grant Doe’s reasonable costs on appeal upon compliance with ARCAP
21.
AMY M. WOOD • Clerk of the Court
FILED: AA
5