Filed 5/19/22 Ratcliff v. The Roman Catholic Archbishop of L.A. CA2/5

Opn after remand

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CHARLES RATCLIFF, JR., et 

al.,

Plaintiffs and Respondents,

v.

THE ROMAN CATHOLIC

ARCHBISHOP OF LOS 

ANGELES et al.,

Defendants and Appellants.

B302558

(Los Angeles County Super. 

Ct. No. 19STCV20138)

APPEAL from an order of the Superior Court of Los 

Angeles County, Elizabeth R. Feffer, Judge. Affirmed.

McKool Smith Hennigan, J. Michael Hennigan, Lee W. 

Potts and Elizabeth S. Lachman for Defendants and Appellants.

Law Offices of Anthony DeMarco, Anthony M. DeMarco; 

Esner, Chang & Boyer, Holly N. Boyer, Shea S. Murphy and 

Kevin K. Nguyen for Plaintiffs and Respondents.

__________________________
2

Seven adults allege they were molested by a priest when 

they were children. They brought suit against The Roman 

Catholic Archbishop of Los Angeles and related entities

(Archdiocese or defendants), alleging defendants were vicariously 

liable for ratifying the molestation and directly liable for their

own negligence in failing to supervise the priest, and related acts 

and omissions. The Archdiocese moved to strike the operative 

complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16), 

arguing that some of the acts by which it purportedly ratified the 

molestation or acted negligently constituted speech or litigation 

conduct protected by the anti-SLAPP statute. We conclude the 

anti-SLAPP motion was appropriately denied, and therefore 

affirm.

FACTUAL ALLEGATIONS

1. The Parties

Plaintiffs are seven alleged molestation victims; some sued 

in their own names, others preferred a “John Doe” designation. 

As their identities were revealed in discovery, the Archdiocese 

calls them all by their names in its briefs on appeal. In contrast, 

plaintiffs continue the naming conventions of their complaint, 

using names for some plaintiffs and John Does for others. In an 

abundance of caution, and to aid readability, we refer to the 

plaintiffs, in chronological order of alleged molestation, as Doe 1 

through Doe 7.

Defendants are The Roman Catholic Archbishop of Los 

Angeles, a corporation sole; the Archdiocese of Los Angeles 

Education and Welfare Corporation; and three individual 

Catholic churches where the molestation allegedly occurred 

(St. Christopher in West Covina, St. Mary in Palmdale, and 

St Lawrence Martyr in Redondo Beach). For our purposes and 
3

unless the context requires otherwise, it is sufficient to refer to 

the defendants collectively as the Archdiocese. The priest who 

allegedly committed the molestation, Father Christopher 

Cunningham, is not a named defendant. Plaintiffs allege that 

the Archdiocese is liable for Father Cunningham’s alleged acts of 

molestation.

At the time the anti-SLAPP motion was denied, the trial 

court also sustained with leave to amend the defendants’

demurrer, on the grounds of lack of specificity. The trial court 

expressed concern that the operative complaint was not clear as 

to which complainant was alleging which cause against which 

defendant. 

2. The Facts as Alleged in the First Amended Complaint

The operative first amended complaint paints the picture of 

an Archdiocese which was willfully blind to its strong suspicions 

– and, perhaps, actual knowledge – of Father Cunningham’s 

misconduct. We reiterate, these are only allegations. Plaintiffs 

allege that, rather than taking curative action in response to 

suspicions of, and accusations against, Father Cunningham with 

investigations, supervision, and limitation of access to children, 

the Archdiocese swept the charges under the proverbial rug and 

simply reassigned Father Cunningham to other parishes, where 

he was free to molest again.

We discuss the allegations in some detail, with particular 

attention to those by which plaintiffs assert the Archdiocese is 

liable for Father Cunningham’s acts of abuse and molestation.

1

1 We observe at the outset that the anti-SLAPP analysis has 

two prongs – first, whether the complaint arises from protected 

activity as described in the anti-SLAPP statute; and second, 
4

A. Allegations Concerning the Archdiocese’s Preexisting 

Policy for the Prevention of Child Molestation by 

Priests

According to the complaint, by 1989, prior to Father 

Cunningham’s ordination, the Archdiocese had received 

complaints that no less than 22 of its priests had sexually 

molested children. It therefore “reduced to writing its policies for 

the prevention of child molestation by its priests,” and provided a 

copy to all priests. “The policy prohibited priests: (1) having 

minors in their living quarters; (2) taking minors on 

unchaperoned outings; [and] (3) tickling, wrestling, kissing or 

hugging minors.”

Father Cunningham was ordained a priest in the 

Archdiocese in 1990, when the written policy was in effect. 

B. First Parish – Doe 1

Father Cunningham was first assigned as an associate 

pastor at St. Christopher. As alleged, “Soon after his arrival he 

began wrestling minors, tickling them, and asking them to go 

with him unchaperoned to movies and other fun activities.” This 

was done openly on the school playground, visible to parish 

employees.

whether the plaintiff has established a probability of prevailing. 

(Park v. Board of Trustees of California State University (2017) 

2 Cal.5th 1057, 1061 (Park).) We resolve this appeal on the first 

prong – whether the allegations of the complaint arise from 

protected activity. The evidence submitted by both parties 

related to the second prong – whether the plaintiffs have a 

probability of prevailing – is not directly relevant to whether the 

complaint arises from protected activity. Nevertheless, we

describe the factual allegations in detail in order to provide 

context for our analysis of the first prong.
5

One of the boys who received the attention of Father 

Cunningham was 12-year-old Doe 1, whose mother worked at the 

church. One day in 1991, when Father Cunningham learned that 

Doe 1’s mother was away on church business, Father 

Cunningham went to Doe 1’s home. He went to the door and 

asked for Doe 1’s mother; Doe 1 told Father Cunningham that his 

mother was not home and Father Cunningham could not come in. 

Father Cunningham entered anyway and sat down on the sofa 

next to the boy. Father Cunningham rubbed the boy’s back and 

thigh, despite Doe 1’s attempts to move away. Father 

Cunningham was interrupted by Doe 1’s mother, who returned

home early. She told Father Cunningham that he was not 

permitted in their home without her permission. She reported 

the conduct to a nun at the church and the church school’s 

principal. Doe 1 also complained to the parish pastor. Father 

Cunningham continued his prohibited interactions with young 

boys unabated, “taking them to the movies, giving them gifts, 

playing with them and tickling them.” Doe 1’s mother believed 

this was “sexualized conduct” and that he was “grooming young 

boys.”

C. Second Parish – Does 2, 3 and 4

In 1994, Father Cunningham was assigned as an associate 

pastor at St. Mary. That year, the Archdiocese updated its policy 

for the prevention of child molestation. Now, the policy required 

any priest who became aware of a fellow priest’s violation of the 

Archdiocese’s policy to confront the violator and report the 

violation to the Vicar for Clergy. 

According to the complaint, at St. Mary, Father 

Cunningham continued to violate the policy – he spent 

“extraordinary amounts of time alone with teen boys.” He took 
6

them to the movies or for ice cream one-on-one; he wrestled them; 

he hugged them; he had them alone in his rectory bedroom. 

Parish staff observed Father Cunningham’s conduct with the 

boys. The church pastor was aware that Father Cunningham 

had boys one-on-one alone with him in his rectory bedroom; the 

pastor informed parish staff that Father Cunningham was not 

allowed to have minors alone with him in his bedroom. 

One of these boys was Doe 2 – Father Cunningham 

regularly wrestled with him and spent time alone with him in his 

bedroom. At least one other priest, Father Gleason, “expressed 

concern” about Father Cunningham bringing Doe 2 into the 

rectory. There were two incidents in which Father Cunningham 

wrestled with Doe 2 until one of Doe 2’s family members stopped 

the wrestling when they believed the physical contact was 

inappropriate. In one such incident, Father Cunningham’s groin 

was pressing against the child’s rear end. When Doe 2 was 12 or 

13, Father Cunningham took him alone to the movies and, during 

the movie, massaged the boy’s genitals with his hand. Sometime 

later, he invited Doe 2 to his rectory bedroom. There, he told the 

boy that the Holy Spirit had a special connection with them and 

that was why they had a special way of showing affection, which 

nobody else could understand – Father Cunningham was groping 

the boy as he said this, and continued to engage in further sexual 

conduct. Doe 2 did not report this because Father Cunningham 

“was his friend and priest, because he believed him, because he 

loved him and trusted him.”

Doe 3 worked in the parish office. Father Cunningham

wrestled with Doe 3 in his rectory bedroom. Father Gleason, the 

priest who had “expressed concern” about Father Cunningham 

bringing Doe 2 into the rectory, warned Doe 3 “not to trust 

Father Cunningham.” Shortly after this warning, Father 
7

Cunningham came into the parish office where Doe 3 was 

working alone and molested him by touching his genitals. 

Doe 4 was an altar server at St. Mary. Father 

Cunningham molested him as well, hugging him, caressing his 

lower back, and putting his fingers inside Doe 4’s pants. Doe 4, 

who was then 15, felt like Father Cunningham was making a 

sexual advance and he felt trapped. He told his mother that he 

did not want to be around Father Cunningham anymore. His 

mother agreed that he need not be. She then paid more attention 

to Father Cunningham and learned that he invited many boys 

out one-on-one. Doe 4’s mother suspected that he may be acting 

inappropriately with the boys. 

Plaintiffs also alleged that Father Miskella, another priest 

at St. Mary, wrote an evaluation in which he characterized 

Father Cunningham as too “immature.” “Immature” has been “a 

code word used by Catholic Clergy for many years to describe a 

priest who spends too much time with minors and who is possibly 

sexually abusing them.” Father Miskella also confidentially 

informed the Vicar for Clergy that he should speak with Father 

Gleason about Father Cunningham. Father Miskella concluded 

that Father Cunningham “is not mature enough to be a pastor.”

There is no indication that “any effort was made to discuss with 

Father Gleason his concerns or thoughts regarding Father 

Cunningham.”

In 1998, a new priest became the administrator at St. 

Mary. Having learned that Father Cunningham had an 

underage boy in his rectory bedroom, the administrator counseled 

him not to do this. He also reported to the Archdiocese that 

“Father Cunningham was immature and had instances of 

imprudent conduct.” As alleged, there was no follow-up.
8

In 1999, a complaint was made to the Vicar for Clergy that 

Father Cunningham had molested a minor (not one of the 

plaintiffs here). The Vicar for Clergy subsequently acknowledged 

that complaint in a letter, which also stated that “all such records 

were going to be maintained permanently” by the Archdiocese, 

but those records are presently missing. There is no record that

the Archdiocese conducted any investigation into this complaint. 

D. Third Parish – Does 5, 6 and 7

In 1999, Father Cunningham was transferred to St. 

Lawrence Martyr, still as an associate pastor. He immediately 

resumed “taking underage parish boys on unchaperoned outings, 

wrestling them, tickling them, hugging them, and having them in 

his rectory bedroom.” All of this conduct was known to parish 

priests. 

Doe 5 was a student at St. Lawrence Martyr; Father 

Cunningham sexually abused him on multiple occasions on 

school grounds and during school activities – including, at one 

point, reaching into the boy’s gym shorts and touching his 

genitals. Doe 5 told his mother that Father Cunningham was 

“harassing” him. His mother reported this to church staff, but 

nobody followed up on Doe 5’s complaints, and Father 

Cunningham’s behavior continued unchecked. When the school 

year ended, Doe 5 and his mother stopped attending that church. 

The head pastor, Monsignor Lenihan, telephoned and apologized 

to Doe 5’s mother for Father Cunningham’s conduct, explaining 

that he “was immature and that he had maturity issues.”

The complaint alleged that Does 6 and 7 were also molested 

by Father Cunningham at St. Lawrence Martyr. It began with 

wrestling, hugging, and tickling, and escalated to Father 

Cunningham having the boys alone in his rectory bedroom where 
9

he “sexually molested them in significant ways.” This behavior 

continued until shortly before Father Cunningham left the parish 

in 2001. Parish staff members were aware that Father 

Cunningham had underage boys alone in his rectory bedroom; at 

least one parish staff member reported this to the head pastor, 

Monsignor Lenihan. Instead of taking action to address the 

complaint, Monsignor Lenihan “actively championed” Father 

Cunningham and supported him so that he would be promoted

from associate pastor to pastor of his own parish. 

E. Aftermath

The complaint alleged that, in 2001, “despite all of the 

complaints that Father Cunningham was sexually abusing 

under-aged boys, despite all the complaints and awareness of his 

routine violation of [the Archdiocese’s] policies and prohibitions of 

the prevention of priests sexually molesting minors,” he was 

promoted to pastor and assigned to his fourth church, St. Louise, 

in Covina. He immediately continued wrestling boys, taking 

them on unsupervised outings and having them in his rectory 

bedroom. An associate pastor complained in writing to the 

Archdiocese about Father Cunningham’s conduct with teen boys. 

Although the associate pastor identified some of the boys by 

name, there is no record that the Archdiocese investigated by 

interviewing the young men. 

Continued complaints were made to the Archdiocese 

regarding Father Cunningham’s conduct, including that he was 

observed “kissing two late teen boys at a local Denny’s.” Father 

Cunningham identified one of the boys to the Archdiocese (the 

boy confirmed the kiss, and said it was “routine”), but the 

Archdiocese made no attempt to identify the other boy. 

In 2004, Father Cunningham moved to his fifth 
10

assignment (Our Lady of Assumption, in Ventura). A few months 

later, he was accused of suspicious conduct with a minor on a trip 

to Europe – he was discovered in a hotel room, alone with a 

minor, with the minor’s belt in his hands. There is no record of 

the Archdiocese “taking any action to either investigate the 

complaint or impose any discipline upon Father Cunningham.”

Instead, Father Cunningham took a leave of absence, and the 

Archdiocese began financially supporting him. 

In 2008, Father Cunningham was listed on an Archdiocese 

document as “having a credible allegation of child sexual abuse 

having been made against him.” Plaintiffs also alleged that in 

2015, another victim of Father Cunningham’s – who is not a 

plaintiff in this action and to whom we refer as Roe – brought 

suit against Father Cunningham. In 2017, the Los Angeles 

County Sheriff’s Department began a criminal investigation into 

complaints against Father Cunningham. The Archdiocese had

continuously paid for Father Cunningham’s maintenance and 

support since 2005, and did not stop in response to Roe’s civil suit 

or the criminal investigation. The Archdiocese paid for lawyers 

to defend him, hired an investigator to “dig up dirt” on his 

victims, paid for Father Cunningham to fly to Los Angeles to 

attend depositions of the victims “in an attempt to intimidate 

them and silence them,” and tried to sway the prosecution away 

from bringing charges. In January 2019, the Archdiocese settled 

the civil action brought by Roe for “a life-changing” sum. Even 

after settling the Roe action, the Archdiocese “authorized the 

continued financial support” of Father Cunningham “and of the 

lawyers representing him, so that they could continue to lobby 

the Los Angeles District Attorney against pressing criminal 

charges for child molestation against Father Cunningham.”
11

PROCEDURAL BACKGROUND

1. The Complaint

Plaintiffs filed their original complaint in this case on 

June 10, 2019.2 The first amended complaint was filed one 

month later. The complaint states three causes of action, 

although only the first two are at issue in this appeal.

3

Before it formally identifies the specific causes of action, 

the complaint alleges the lengthy history of Father 

Cunningham’s abuse of minors within the church, including his 

specific molestation of the seven plaintiffs. We have summarized 

those allegations above. The complaint also includes general 

allegations that the Archdiocese, through its “agents and 

managing agents, knew of prior complaints that Father 

Christopher Cunningham had sexually molested a minor(s), prior 

to the end of his abuse of Plaintiffs. [The Archdiocese] through 

[its] agents and managing agents, knew or had reason to know 

that Father Christopher Cunningham routinely violated rules of 

Defendants that were designed to prevent child molestation by 

clergy.” It further alleges that Father Cunningham was a “priest, 

employee and an agent” of the Archdiocese when he met the 

plaintiffs and abused them. It alleges that, at all times, the 

Archdiocese, “employed, supervised and controlled the 

2 Some of the plaintiffs in this action had previously filed 

separate actions, which they then voluntarily dismissed without 

prejudice, prior to bringing this action. 

3 The third cause of action was for violation of civil rights 

under the Unruh Civil Rights Act. (Civ. Code, § 51.) In response 

to the defendants’ demurrer, plaintiffs agreed to withdraw this 

cause of action. Ultimately, plaintiffs orally dismissed the Unruh 

Act cause of action with prejudice. 
12

employment as a priest of” Father Cunningham, as well as the 

other employees and agents at the churches where he worked. 

The first cause of action is for “Child Sexual Abuse/Sexual 

Battery.” It alleges that the Archdiocese is vicariously liable for 

the sexual abuse committed by Father Cunningham because it

both authorized and ratified the abuse. Plaintiffs alleged that 

the Archdiocese “ratified and/or approved of the sexual 

misconduct by failing to adequately investigate, discharge, 

discipline or supervise” Father Cunningham. They allege the 

Archdiocese further ratified the abuse by “concealing evidence of 

sexual abuse of other children by” Father Cunningham from 

plaintiffs, their families, law enforcement, and other Archdiocese 

personnel “who could have been in a position to prevent the abuse 

of Plaintiffs” if they had known of the prior complaints. 

The complaint alleges, “Defendants have routinely over the 

years failed to discipline, investigate or terminate known child 

molesting priests. Instead, Defendants condoned the conduct of 

priests molesting children by protecting offending clerics from 

public scorn and civil authorities, often transferring them from 

town to town, county to county, state to state, and country to 

country, all to allow child molesting priests to escape prosecution 

and protect their reputations, as well as the reputation of the 

Defendants. By doing so, Defendants have systematically 

encouraged and condoned this conduct by more priests including

Father Christopher Cunningham.”

The complaint then contains several paragraphs of 

allegations stating that, upon learning of Roe’s civil complaint 

against Father Cunningham, and despite knowledge “of other 

complaints that Father Christopher Cunningham had molested 

children,” the Archdiocese nonetheless “opted to immediately 

begin paying for Father Christopher Cunningham’s personal 
13

lawyer” and “continued its financial support of Father 

Christopher Cunningham.” Even after learning of additional 

complaints against Father Cunningham – including those of 

several plaintiffs in this case, the Archdiocese “continued its 

support of and continued paying for the defense” of Father 

Cunningham in both the Roe litigation and criminal 

investigation. “Those efforts continue to the present day.”

Notably, while these paragraphs detail the Archdiocese’s 

continued financial support of Father Cunningham after the 

evidence mounted against him, they do not specifically allege 

that this support constituted ratification of the sexual abuse.

The second cause of action is for negligence. Plaintiffs 

allege that by law the Archdiocese had a special relationship with 

the children entrusted to its care, which gave rise to a duty to 

protect them from harm. Plaintiffs allege, “Defendants, by and 

through their agents, servants and employees, knew or 

reasonably should have known of Father Christopher 

Cunningham’s dangerous and exploitive propensities and/or that 

Father Christopher Cunningham was an unfit agent. It was 

foreseeable that if Defendants did not adequately exercise or 

provide the duty of care owed to children in their care, including 

but not limited to the Plaintiffs, the children entrusted to 

Defendants’ care would be vulnerable to sexual abuse by Father 

Christopher Cunningham.”

Plaintiffs allege that defendants breached this duty of care 

by allowing Father Cunningham “to come into contact with the 

minor Plaintiffs without supervision; by failing to adequately 

supervise, or negligently retaining Father Christopher 

Cunningham who they permitted and enabled to have access to 

Plaintiffs; by failing to investigate or otherwise confirm or deny 

such facts about Father Christopher Cunningham; by failing to 
14

tell or concealing from Plaintiffs, Plaintiffs’ parents, guardians, 

or law enforcement officials that Father Christopher

Cunningham was or may have been sexually abusing minors; 

and/or by holding out Father Christopher Cunningham to the 

Plaintiffs and their parents or guardians as being in good 

standing and trustworthy.”

Next, plaintiffs allege that the Archdiocese had a duty “to 

educate, train and warn” plaintiffs “regarding prevention, 

detection and reporting of child abuse” to help safeguard them, 

but failed to do so. Plaintiffs allege a breach of duty arising from 

the Archdiocese’s decision to give copies of its written policies for 

the prevention of child molestation only to priests. The 

Archdiocese also had a duty to provide the policies to nonpriest

parish staff and parents in the community, people who could 

have reported that Father Cunningham was routinely violating 

these policies. 

Finally, plaintiffs allege that a number of parish staff 

members who witnessed Father Cunningham’s suspicious 

conduct were mandated reporters under Penal Code section 

11165.7, but the Archdiocese violated its obligation under the law 

to educate them about their reporting duties – a violation which 

was a proximate cause of plaintiffs’ abuse.4

2. The Demurrer

On August 29, 2019, defendants demurred. The demurrer 

raised numerous grounds, including misjoinder of plaintiffs, 

4 Mandated reporters under Penal Code section 11165.7 

include teachers, teacher’s assistants, private school 

administrative officers, clergy members, and custodians of 

records of clergy members.
15

misjoinder of defendants, and failure to state a cause of action.

5

Plaintiffs opposed the demurrer. The trial court heard the 

demurrer and anti-SLAPP motion together. 

3. The Anti-SLAPP Motion

On September 25, 2019, the Archdiocese filed its antiSLAPP motion.

A. Overview of Anti-SLAPP Motions

An anti-SLAPP motion presents a means by which a 

defendant, sued for conduct in furtherance of the constitutional 

right of petition or free speech, can place the burden on a plaintiff 

to establish that there is a probability of prevailing on the claim 

or face early dismissal of the action. (Code Civ. Proc., § 425.16, 

subd. (b)(1).) If the defendant first establishes a prima facie 

showing that a claim is based on so-called “protected activity,”

the burden switches to the plaintiff to establish the lawsuit has 

at least minimal merit. (Park, supra, 2 Cal.5th at p. 1061.)

Before a trial court may proceed to the second prong, the 

moving defendant must satisfy the first prong – that is, establish 

that the cause of action arises from protected activity, as the term 

is defined by statute. Code of Civil Procedure section 425.16, 

subdivision (e) is the operative provision and describes four 

categories of protected speech and conduct: “(1) any written or 

oral statement or writing made before a legislative, executive, or 

judicial proceeding, or any other official proceeding authorized by 

5 Although we refer to the defendants collectively as “the 

Archdiocese,” the complaint was filed against a number of 

different defendants, and the defendants argued as part of their 

demurrer that several of them were improperly named because 

the complaint did not specifically identify what each defendant 

purportedly did to be liable to each plaintiff. 
16

law, (2) any written or oral statement or writing made in 

connection with an issue under consideration or review by a 

legislative, executive, or judicial body, or any other official 

proceeding authorized by law, (3) any written or oral statement 

or writing made in a place open to the public or a public forum in 

connection with an issue of public interest, or (4) any other 

conduct in furtherance of the exercise of the constitutional right 

of petition or the constitutional right of free speech in connection 

with a public issue or issue of public interest.”

B. Defendants’ Argument in Support of their AntiSLAPP Motion

The Archdiocese’s anti-SLAPP motion argued that the 

complaint was based on both protected speech and litigation 

conduct.

As to the first cause of action for sexual abuse, the 

Archdiocese argued that the only allegations against it were its 

support of Father Cunningham in Roe’s civil action and in the 

sheriff’s criminal investigation – conduct it argued was protected 

litigation activity. 

As to the negligence cause of action, the Archdiocese 

focused on a handful of allegations from plaintiffs’ complaint 

which could be characterized as speech – or, more precisely, the 

decision not to speak – on an issue of public interest, and argued 

that those allegations were, in fact, the basis of the complaint 

against it. Those allegations were: (1) the failure to inform 

parish communities about allegations of abuse against Father 

Cunningham and instead holding him out as trustworthy; (2) the 

failure to communicate the Archdiocese’s policy for the prevention 

of molestation to nonpriest staff and members of the community; 

(3) the failure to educate, train and warn plaintiffs about sexual
17

abuse; and (4) the failure to inform staff who were mandated 

reporters about their duties as mandated reporters under the 

law.

The parties disagree on appeal as to whether, and to what 

extent, the Archdiocese sought to strike specific allegations from 

these two causes of action, rather than the causes of action in 

their entirety. To be sure, the Archdiocese’s formal “Notice of 

Motion” indicated that the motion would seek, in the alternative 

to striking both causes of action, to strike a number of individual 

paragraphs, subparagraphs, and lines of the first amended 

complaint (identified by paragraph and line number).

6 But the 

Archdiocese did not address this alternative in its memorandum 

of points and authorities in support of the motion—though it 

should have.

7 Instead, the Archdiocese argued in its supporting 

papers that the causes of action were based on protected activity 

as a whole. For this reason, the trial court – and this court in its 

initial majority opinion – approached the anti-SLAPP motion as 

if the motion had addressed the entirety of each cause of action 

and not individual allegations.

6 The notice of motion also raised a second alternative 

argument – that the first and second causes of action should be 

dismissed (1) for failure to state a claim, and (2) as barred by 

several statutory privileges and the Establishment clause. The 

Archdiocese does not pursue this alternative argument on appeal.

7 Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral) ([“At the 

first step, the moving defendant bears the burden of identifying 

all allegations of protected activity, and the claims for relief 

supported by them”], italics added.)
18

C. Plaintiffs’ Opposition

Plaintiffs’ opposition to the motion argued that the speech 

and petitioning conduct identified in the Archdiocese’s motion 

were merely supporting evidence of the Archdiocese’s vicarious 

liability, not the tortious acts on which the complaint was based. 

Plaintiffs argued the complaint was about conduct: Father 

Cunningham’s sexual abuse and the Archdiocese’s “failures to 

take appropriate steps to prevent that abuse.”

As to the first cause of action, plaintiffs argued that the 

Archdiocese’s payment of Father Cunningham’s attorney fees was 

merely evidence of the Archdiocese’s ratification of his 

molestation. But it was the ratification itself that rendered the 

Archdiocese vicariously liable. Plaintiffs explained that the 

Archdiocese was aware of Father Cunningham’s molestation and 

routine violation of its policies for the prevention of molestation. 

Despite that knowledge, the Archdiocese ratified Father 

Cunningham’s conduct by its failure to “investigate, discipline or 

better supervise him,” its “withholding of or destruction of 

records of complaints,” its “promotion of Father Cunningham 

after such complaints,” and its “support of him financially 

throughout.”

Plaintiffs argued that their negligence cause of action was 

based on three theories, which they itemized as negligent 

supervision and retention; negligence per se under the 

mandatory reporting statutes; and negligent “failure to educate 

train or warn.” Plaintiffs argued that negligent supervision and 

retention of Father Cunningham is not protected speech or 

litigation activity. As to the other theories, plaintiffs argued that 

inaction does not rise to the status of protected conduct. 
19

D. The Archdiocese’s Reply

In reply, the Archdiocese acknowledged that plaintiffs took 

the position that the conduct on which they based their first 

cause of action was the molestation itself. But, they responded, 

“That, however, is contrary to the allegation that the acts that 

make the Archdiocese liable ‘in the present case’ are actions in 

the prior [Roe] litigation. [Citation.] There is no claim against 

Cunningham in this case. The allegations regarding 

Cunningham and molestation are ‘Background Facts.’ [Citation.] 

The alleged ‘liability-creating activity’ of the Defendants for 

ratification is acts in furtherance of the right to petition the 

Court.”

8

8 This argument, which the Archdiocese continues to pursue 

on appeal, is a misquoted citation to the plaintiffs’ use of “In the 

present action” at the beginning of paragraph 112 of their 

complaint. The language of paragraph 112 is not without some 

uncertainty; nonetheless, it does not support the interpretation 

the Archdiocese pursues. Plaintiffs allege, “In the present action, 

after learning of the first lawsuit filed against Father 

Christopher Cunningham in 2015 alleging Father Christopher 

Cunningham did sexually molest the plaintiff when the plaintiff 

was a minor, the [Archdiocese], despite its knowledge of other 

complaints that Father Christopher Cunningham had sexually 

molested children opted to immediately begin paying for Father 

Christopher Cunningham’s personal lawyer.” This appears to be 

an allegation that the Archdiocese chose to pay for Father 

Cunningham’s defense in the present action itself, despite its 

knowledge of the myriad accusations against him. It is not, as 

the Archdiocese interprets it, a representation that all allegations

that came before are mere background, and the allegations that 

follow are the only allegations on which liability is based “[i]n the 

present action.” 
20

As to negligence, the Archdiocese reasserted that the 

negligence claims arose out of protected speech, and more 

precisely, its decision to not speak. 

E. Hearing and Ruling

After spirited argument, the trial court stated that, when 

focusing on the allegations of the complaint, “[t]his case is really 

about, allegation-wise, a failure to properly investigate and train 

and report acts of child abuse and at what level there should 

have been training, at what level there should have been 

reporting.” The court rejected the Archdiocese’s argument that 

the first cause of action arose from its litigation conduct, 

concluding, “it’s clear that plaintiffs’ cause of action for sexual 

assault and sexual battery is based upon and seeks to recover 

damages for Father Cunningham’s improper sexual conduct 

related to the plaintiffs,” and the Archdiocese’s vicarious liability 

for it. Accordingly, the court concluded the complaint did not 

allege conduct protected by the anti-SLAPP law. 

As to the cause of action for negligence, the court found 

that plaintiffs had alleged a breach of duty of care by allowing 

Father Cunningham to come into contact with the plaintiffs 

without adequate supervision, negligently retaining him, failing 

to investigate allegations of misconduct, concealing from 

plaintiffs, their parents and law enforcement that Father 

Cunningham was or may have been sexually harassing children, 

and holding Father Cunningham out as trustworthy. While the 

court recognized there may be speech, or lack of speech, involved, 

the court believed that, viewed in its entirety, the cause of action 
21

was not based on protected conduct. The anti-SLAPP motion was 

denied.9

The court then turned to the demurrer, and sustained it on 

several grounds with leave to amend.10

The Archdiocese filed a timely notice of appeal from the 

denial of its anti-SLAPP motion. 

9 On appeal, the Archdiocese characterizes the trial court’s 

ruling as follows: “Even though it found that no claim was 

legally sufficient, it denied the motion because it disapproved of 

the petitioning and speech activities involved.” Our review of the 

record reveals a conscientious trial court attempting to properly 

rule on a motion implicating a challenging and complex area of 

the law.

10 The trial court’s ruling on the demurrer was as follows: 

“The Demurrer is OVERRULED on commonality ground. 

The Demurrer is SUSTAINED as to specificity ground. The 

Court sustains the demurrer as to the 4th, 8th to 16th causes of 

action. The Court overrules the demurrer as to 1st, 2nd, 3rd, 5th, 

6th, 7th, and 17th causes of action. 

“The Court grants 30 days leave to amend. Counsel are to 

meet and confer on the issue.”

By “causes of action,” we presume the court was referring 

to the multiple enumerated grounds expressly asserted in the 

demurrer; the complaint itself had only three causes of action, 

one of which plaintiffs dismissed.

The parties disagree whether the court’s ruling reflected its 

view of the substantive merits of the complaint. As the ruling on 

the demurrer is not before us on appeal, as we explain in Part 4 

of our discussion, we express no opinion. 
22

4. Initial Appeal and Supreme Court Remand

On appeal, we affirmed the trial court’s decision on the 

anti-SLAPP motion. The Archdiocese sought review. On 

September 1, 2021, the Supreme Court remanded the matter 

with directions that we vacate our decision and reconsider it in 

light of its recent decision in Bonni v. St. Joseph Health System

(2021) 11 Cal.5th 995, 1009-1012 (Bonni). We vacated our 

decision, received additional briefing, held oral argument, and 

now reconsider our opinion.

11

DISCUSSION

1. Standard of Review; Protected and Unprotected 

Activity

“We review de novo the grant or denial of an anti-SLAPP 

motion. [Citation.] We exercise independent judgment in 

determining whether, based on our own review of the record, the 

challenged claims arise from protected activity. [Citations.] In 

addition to the pleadings, we may consider affidavits concerning 

the facts upon which liability is based. [Citations.] We do not, 

however, weigh the evidence, but accept plaintiff’s submissions as 

true and consider only whether any contrary evidence from the 

defendant establishes its entitlement to prevail as a matter of 

law. [Citation.]” (Park, supra, 2 Cal.5th at p. 1067.)

“A claim arises from protected activity when that activity 

underlies or forms the basis for the claim. [Citations.] Critically, 

‘the defendant’s act underlying the plaintiff’s cause of action must 

itself have been an act in furtherance of the right of petition or 

free speech.’ [Citations.]” (Park, supra, 2 Cal.5th at pp. 1062-

11 During supplemental briefing, plaintiffs moved to strike 

certain portions of the Archdiocese’s brief. We deny the motion. 
23

1063.) “To determine whether a claim arises from protected 

activity, courts must ‘consider the elements of the challenged 

claim and what actions by the defendant supply those elements 

and consequently form the basis for liability.’ [Citation.] Courts 

then must evaluate whether the defendant has shown any of 

these actions fall within one or more of the four categories of 

‘ “act[s]” ’ protected by the anti-SLAPP statute. [Citations.]”

(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)

When a cause of action contains both protected and 

unprotected activity, the defendant may move to strike particular 

claims supported by allegations of protected activity within that 

cause of action. (Baral, supra, 1 Cal.5th at p. 392.) Even when

the moving defendant seeks only to strike a cause of action in its 

entirety, courts must analyze each separate claim for relief

within the cause of action to determine whether the acts are 

protected. (Bonni, supra, 11 Cal.5th at pp. 1010-1011.) However,

“[i]f a cause of action contains multiple claims and a moving 

party fails to identify how the speech or conduct underlying some 

of those claims is protected activity, it will not carry its first-step 

burden as to those claims.” (Id. at p. 1011; Pech v. Doniger (2022) 

75 Cal.App.5th 443, 459.)

As we have observed, in the trial court the Archdiocese’s 

supporting papers addressed each of the two causes of action in 

plaintiffs’ complaint as a whole. On appeal, however, the 

Archdiocese relies on the alternative argument raised in its 

Notice of Motion: that individual allegations of the complaint 

should be stricken.
24

We consider each cause of action individually. To the 

extent a cause of action is based on multiple claims for relief, we 

consider the claims separately.

12 

2. First Cause of Action – Child Sexual Abuse/Sexual 

Battery

Plaintiffs’ first cause of action is for child sexual 

abuse/sexual battery, and alleges the Archdiocese is liable for 

Father Cunningham’s molestation of plaintiffs due to its 

authorization and ratification of that conduct.

A. Law of Ratification

“ ‘As an alternate theory to respondeat superior, an 

employer may be liable for an employee’s act where the employer 

either authorized the tortious act or subsequently ratified an 

originally unauthorized tort. [Citations.] The failure to 

discharge an employee who has committed misconduct may be 

evidence of ratification. [Citation.] The theory of ratification is 

generally applied where an employer fails to investigate or 

respond to charges that an employee committed an intentional 

tort, such as assault or battery. [Citations.] Whether an 

employer has ratified an employee’s conduct is generally a factual 

question. [Citation.]’ [Citations.]” (C.R. v. Tenet Healthcare 

Corp. (2009) 169 Cal.App.4th 1094, 1110-1111.) “A principal may 

be liable when it ratifies an originally unauthorized tort. 

[Citations.] And generally, the ratification relates back to the 

time the tortious act occurred. [Citations.] As noted, ratification 

12 In Baral, the Supreme Court indicated that it sometimes 

used “cause of action” to refer to a count as pleaded, while the 

proper subject of an anti-SLAPP motion is a “claim.” (Baral, 

supra, 1 Cal.5th at p. 382.) We follow that convention.
25

may occur when an employer learns of misconduct and fails to 

discharge an agent or employee. [Citations.]” (Id. at p. 1111.)

Ratification is not itself a tort, but a doctrine that holds the 

ratifying party liable for the tort committed by another party. It 

is the voluntary election by a party to adopt, as its own, an act 

purportedly done on its behalf by another, the effect of which is to 

treat the act as originally authorized by the ratifier. (Lebrun v. 

CBS Television Studios, Inc. (2021) 68 Cal.App.5th 199, 208-209.) 

Ratification is not an element of a claim; it is a choice to adopt 

someone’s act as one’s own. Evidence of the ratification may 

come in many forms, for example where an employer fails to 

terminate, investigate, or respond to charges that an employee 

has committed an intentional tort. (C.R. v. Tenet Healthcare 

Corp., supra, 169 Cal.App.4th at pp. 1110-1111.)

B. The Claims in the First Cause of Action

In its initial briefing, the Archdiocese argued only that the 

entire cause of action arose from protected speech. Bonni

instructs that we should focus not on the essence or gravamen of 

the cause of action, but on each of the multiple claims within that 

cause of action. (Bonni, supra, 11 Cal.5th at p. 1011.) This does 

not alter the Archdiocese’s argument; it continues to take the 

position that “the alleged basis for [the Archdiocese’s] liability is 

the litigation activity that ratified the abuse.” This position 

encompasses two arguments: first, that it is the ratification 

activity itself that is the focus of an anti-SLAPP motion; and, 

second, that the acts of ratification alleged by plaintiffs are

defendants’ litigation activity. Regardless of the validity of the 

first; the second is contrary to the actual allegations of the 

complaint.
26

Assuming without deciding that litigation activity allegedly 

evidencing ratification is a legitimate target of an anti-SLAPP 

motion, it was not properly targeted in this case. As Bonni

explained, there is a difference between allegations that supply 

the elements of a claim and allegations of incidental background. 

(Bonni, supra, 11 Cal.5th at p. 1012.) “Allegations of protected 

activity that merely provide context, without supporting a claim 

for recovery, cannot be stricken under the anti-SLAPP statute.” 

(Baral, supra, 1 Cal.5th at p. 394; Pech v. Doniger, supra, 

75 Cal.App.5th at p. 459.) 

The Archdiocese characterizes the first cause of action as 

based entirely on its litigation activity in the Roe litigation and 

the criminal investigation. This characterization of the 

complaint is not what the document actually says. Instead, the 

only allegations of ratification are based on unprotected conduct. 

We conclude that the allegations that might be considered 

protected activity are merely incidental.

We return to the allegations of the operative first amended 

complaint. The “Background Facts” section alleges the history of 

Father Cunningham’s alleged sexual abuse of plaintiffs and any 

number of facts, which, if true, would have put the Archdiocese 

on notice that Father Cunningham may have been, or actually 

was, molesting young boys at his assignments. Specifically, from 

the time he was first ordained, and until he took a leave of 

absence after having been caught with a minor in a hotel room, 

Father Cunningham openly violated the written policies for 

prevention of child molestation by priests. This was known to 

other parish employees, and, in some cases, reported up the chain 

of command. As alleged, complaints went missing and were not 

investigated. Witnesses with information were never questioned. 

Time and time again, nothing was done to restrict or supervise 
27

Father Cunningham’s access to young boys. Instead, he was 

moved to different parishes and, ultimately, promoted to the 

position of priest at his own parish. 

The “Child Sexual Abuse” cause of action incorporates the 

above by reference, then alleges, “Defendants are vicariously 

liable for the child sexual abuse committed upon Plaintiffs by 

Father Christopher Cunningham: 1) The Defendants authorized 

the wrongful conduct; 2) The Defendants ratified the wrongful 

conduct.” Paragraph 108 follows, alleging, “For the reasons set 

forth in the incorporated paragraphs of this Complaint, the 

sexual abuse of Plaintiffs by Father Christopher Cunningham 

arose from, was incidental to Father Christopher Cunningham’s 

employment with Defendants, and each of these Defendants 

ratified or approved of Father Christopher Cunningham’s sexual 

abuse of minors, including Plaintiffs. Plaintiffs allege on 

information and belief that Defendants ratified and/or approved 

of the sexual misconduct by failing to adequately investigate, 

discharge, discipline or supervise Father Christopher 

Cunningham or other priests known by Defendants to have 

sexually abused children, or to have been accused of sexually 

abusing children. Defendants and each of them ratified Father 

Christopher Cunningham’s abuse by concealing evidence of 

sexual abuse of other children by Father Christopher 

Cunningham and other priests from Plaintiffs, Plaintiffs’ parents, 

other families with children, law enforcement, and personnel of 

Defendants who could have been in a position to prevent the 

abuse of Plaintiffs and others if they had known of complaints of 

Father Christopher Cunningham’s sexual abuse of children, and 

prior complaints of other priests of sexual abuse of children.” We 

observe that none of these allegations of ratification or approval 
28

involves the Archdiocese’s conduct in the Roe litigation or the 

criminal investigation.13 

Similarly, paragraph 111 includes allegations of vicarious 

liability: “Defendants have routinely over the years failed to 

discipline, investigate or terminate known child molesting 

priests. Instead, Defendants condoned the conduct of priests 

molesting children by protecting offending clerics from public 

scorn and civil authorities, often transferring them from town to 

town, county to county, state to state, and country to country, all 

to allow child molesting priests to escape prosecution and protect 

their reputations, as well as the reputation of the Defendants. 

By doing so, Defendants have systematically encouraged and 

condoned this conduct by more priests, including Father 

Christopher Cunningham.” We observe again that these specific 

allegations of “condon[ing]” abusive conduct by transferring 

priests to enable them to protect their reputations likewise make 

no mention of the Roe litigation or the Archdiocese’s involvement 

in the criminal investigation of Father Cunningham.

To be sure, the complaint then alleges a number of 

paragraphs (112-115) that discuss the Archdiocese’s continued 

financial support of Father Cunningham, and its defense of him 

in the Roe litigation and criminal investigation despite its 

knowledge of increasing numbers of victims making allegations of 

13 The allegation that the Archdioceses concealed evidence 

from “law enforcement,” among others, cannot be interpreted as a 

reference to the criminal investigation. In context, the allegation 

refers to concealing evidence from individuals or entities who 

could have prevented the sexual abuse of plaintiffs and others. 

The criminal investigation of Father Cunningham did not 

commence until 2017, more than a decade after Father 

Cunningham took a leave of absence from the priesthood.
29

abuse against Father Cunningham. Viewed as part of the full 

waterfront of the complaint’s factual allegations that we have 

already described, these three paragraphs are a relatively small 

jetty. Even more significantly, none of these paragraphs allege 

that, by its support of Father Cunningham in the Roe litigation 

and criminal investigation, the Archdiocese ratified Father 

Cunningham’s sexual abuse of plaintiffs. Unlike the specific 

paragraphs which allege “ratification,” “approval,” or even 

“condon[ing]” the sexual abuse by the Archdiocese’s failure to 

investigate and supervise Father Cunningham, and instead 

transferring him to different locations, the allegations of the 

Archdiocese’s litigation conduct set forth the facts, with no 

allegation that these facts establish vicarious liability.

For the purposes of the present appeal, we take the 

amended complaint at its word. The claim for ratification is 

based on the allegations actually identified as ratifying. The 

allegations of litigation conduct are simply incidental allegations

that provide context, and are not the basis for any claim of 

ratification.

The Archdiocese, both in its anti-SLAPP motion before the 

trial court, and in its briefing on appeal, goes to great lengths to 

overlook the actual allegations of ratification, namely the acts of 

failing to investigate and supervise (and, instead, transferring to 

different parishes) of paragraphs 108 and 111, and instead 

argues that the entirety of the ratification allegations are found 

in the litigation conduct of paragraphs 112-115, despite the 

absence of ratification, approval, or similar terms in those 

paragraphs.

14 In the course of doing so, the Archdiocese

14 In its supplemental brief on remand, the Archdiocese 

argues, in a footnote: “Plaintiffs never identify any other act by 
30

mischaracterizes the complaint, cherry-picking allegations of 

litigation conduct, and, without support, suggesting that they are 

the only allegations incorporated by reference into the sexual

abuse cause of action.15 As we have discussed, not only do these 

allegations not comprise the entirety of the allegations of 

ratification, they are, in fact, incidental to the actual allegations 

of ratification.

16

Appellant [beyond the litigation activity] that is the basis for 

relief. They merely make a passing reference that ‘it is the 

alleged act of Defendants in authorizing and condoning Father 

Cunningham’s sexual abuse of Plaintiffs that the claim is 

predicated.’ Authorizing and condoning are not acts but 

immaterial conclusions about motives and intent. [Citations.]” 

“Authorizing” is not a mere conclusion about intent, but a theory 

of liability. A principal may be liable for the conduct of its agent, 

even if that conduct is criminal, in one of three ways: (1) if the 

principal directly authorized it; (2) if the agent committed the 

tort in the scope of employment and in performing services on 

behalf of the principal; or (3) if the principal ratifies the conduct 

after the fact. (Doe v. Roman Catholic Archbishop of Los Angeles 

(2016) 247 Cal.App.4th 953, 969.)

15 Specifically, the Archdiocese suggests that the cause of 

action is based on paragraphs 112-115 “and in the repeated and 

incorporated allegations [Paragraph 108] from Paragraphs 9-11, 

61-64, 66-67.” Paragraphs 9-11, 61-64 and 66-67 are, in fact, 

earlier allegations of the same litigation conduct. But there is 

nothing in the complaint which incorporates only those nine 

paragraphs by reference – either into the sexual abuse cause of 

action or the specific allegations of ratification. Plaintiffs 

incorporated the entirety of their previous allegations (105 

paragraphs) by reference.
31

3. Second Cause of Action - Negligence

We next turn to plaintiffs’ negligence cause of action. The 

complaint alleged that a number of the plaintiffs had been

students at parish schools. We start with some basic rules about 

the legal duty owed to school children.

17

16 The Archdiocese never argued that there were multiple 

claims for ratification, some based on protected litigation conduct 

and some not, and directed its anti-SLAPP motion only to those 

claims based on litigation conduct. By putting all of its antiSLAPP eggs in the litigation conduct basket, it failed to meet its 

burden as movant on this theory. “If a cause of action contains 

multiple claims and a moving party fails to identify how the 

speech or conduct underlying some of those claims is protected 

activity, it will not carry its first-step burden as to those claims. 

[Citation.] The nonmovant is not faced with the burden of having 

to make the moving party’s case for it.” (Bonni, supra, 11 Cal.5th 

at p. 1011.) Here, the Archdiocese’s notice of motion itemized a 

number of paragraphs to be stricken, but the vast bulk of those 

paragraphs were not addressed in its points and authorities at 

all. While the Archdiocese did argue that the litigation conduct 

of paragraphs 112-115 was litigation activity, it failed to 

specifically move to strike only those paragraphs, because it 

argued the entirety of the cause of action arose from them. 

17 In its supplemental brief on remand, the Archdiocese states 

that only one plaintiff, Doe 5, “claims abuse at a school.” The 

characterization of the complaint is incorrect. For example,

plaintiffs alleged that Father Cunningham “continued engaging 

in his sexualized conduct with [Doe 1] on the school and parish 

grounds.” In any event, the Archdiocese fails to explain, with 

argument and citation to authority, the relevance for this appeal 

of the actual site of the alleged molestation.
32

“Ample case authority establishes that school personnel 

owe students under their supervision a protective duty of 

ordinary care, for breach of which the school district may be held 

vicariously liable. [Citations.]” (C.A. v. William S. Hart Union 

High School Dist. (2012) 53 Cal.4th 861, 865.) Because of the 

special relationship a school district and its employees have with 

the students, the duty of care owed by school personnel includes 

“the duty to use reasonable measures to protect students from 

foreseeable injury at the hands of third parties acting negligently 

or intentionally.” (Id. at pp. 869-870.) A “school district is liable 

‘for the negligence of supervisory or administrative personnel 

who knew, or should have known’ of the foreseeable risk to 

students of sexual abuse by an employee and nevertheless hired, 

retained, and/or inadequately supervised that employee.

[Citation.]” (D.Z. v. Los Angeles Unified School Dist. (2019) 

35 Cal.App.5th 210, 223.)

This same special relationship exists between an 

archdiocese and its catechism students, and gives rise to the 

same duties. (Doe v. Roman Catholic Archbishop of Los Angeles

(2021) 70 Cal.App.5th 657, 671-673.) An archdiocese has a duty 

to take reasonable measures to protect its students from injuries 

at the hands of others while they attend catechism classes.

18 (Id.

at p. 673.)

We consider the individual allegations of the negligence 

cause of action to which the Archdiocese directed its anti-SLAPP 

motion.

18 The Doe court also held that the fact that the alleged 

assaults did not occur at the parish school did not undermine the

existence of a special relationship, when the alleged assaults 

occurred on church property while the plaintiff was in the care 

and custody of the parish. (Doe, supra, 70 Cal.App.5th at p. 673.)
33

A. The Archdiocese Mischaracterizes the Complaint

Much like its attack on the first cause of action, the 

Archdiocese’s strategy against the negligence cause of action was 

to construe it narrowly so as to limit its reach only to acts the 

Archdiocese claimed constituted protected speech. We reject the 

attempt.

Prior to the complaint’s section on “Background Facts,”

plaintiffs alleged, by way of introduction, that in 2018, the 

Archdiocese publicly apologized for child sexual abuse suffered at 

the hands of priests, and represented that the Church needed to 

be transparent about the perpetrators and vigilant in its 

investigations of allegations of misconduct. The complaint goes 

on to suggest, however, that this public statement of concern was 

“very different from the way” the Archdiocese was actually 

treating victims of abuse. Similarly, plaintiffs allege that the 

public statement of vigilant investigations was contradicted by 

the Archdiocese’s actual practice of hiding evidence and denying 

abuse. 

Focusing on this introductory language, the Archdiocese 

takes the position that the negligence cause of action “attempts to 

craft a negligence claim out of an alleged conflict between the 

Archdiocese’s positive public statements about its response to 

accusations of abuse and alleged failures: to inform parish 

communities and public authorities that Cunningham ‘may have 

been’ abusing minors, to publish Priests’ policies to non-Priests 

and to inform staff about mandated reporters’ duties.” By linking 

selected allegations of the negligence cause of action to the 

“positive public statements,” the Archdiocese argues that the 

cause of action for negligence arises from its protected conduct in 

furtherance of speech.
34

We do not accept this selective reading of the first amended 

complaint. The negligence cause of action alleges, in successive 

paragraphs: (1) defendants had a duty to protect plaintiffs; 

(2) Father Cunningham was able to molest plaintiffs due to the 

access and authority he had as a priest; and (3) the Archdiocese 

knew or should have known of Father Cunningham’s “dangerous 

and exploitive propensities and/or that Father Christopher 

Cunningham was an unfit agent.” This is then followed by 

paragraph 120, which alleges, “Defendants breached their duty of 

care to the minor Plaintiffs by allowing Father Christopher 

Cunningham to come into contact with the minor Plaintiffs 

without supervision; by failing to adequately supervise, or 

negligently retaining Father Christopher Cunningham who they

permitted and enabled to have access to Plaintiff[s]; by failing to 

investigate or otherwise confirm or deny such facts about Father 

Christopher Cunningham; by failing to tell or concealing from

Plaintiffs, Plaintiffs’ parents, guardians, or law enforcement 

officials that Father Christopher Cunningham was or may have 

been sexually abusing minors; and/or by holding out Father

Christopher Cunningham to the Plaintiffs and their parents or 

guardians as being in good standing and trustworthy. As a 

Priest, Father Christopher Cunningham was expected to minister 

to parish families. Defendants acknowledged and expect that 

parish priests should visit parishioners’ homes as part of their 

duties as priests. Father Christopher Cunningham visited family 

homes like Plaintiffs’ as part of his expected functions.

Defendants cloaked within the facade of normalcy Defendants’

and/or Father Christopher Cunningham’s contact and/or actions 

with the Plaintiffs and/or with other minors who were victims of 

Father Christopher Cunningham, and/or disguised the nature of

the sexual abuse and contact.”
35

The Archdiocese disposes of this paragraph by saying it 

“has a series of conclusory allegations strung together with an 

ineffable ‘and/or.’ That Paragraph is immaterial and cannot 

change the allegation that the activity giving rise to the claim for 

relief is protected ‘failure to inform.’ ”

Even if those allegations were conclusory standing alone (a 

point we do not decide), they are reinforced by the specific 

allegations of fact in the preceding pages of the complaint. The 

numerous allegations of nonspeech-related negligent conduct –

failure to supervise, negligent retention, failure to investigate –

which form the bulk of this cause of action cannot be brushed 

aside because the Archdiocese would rather categorize this cause 

of action as “failure to inform.”

The Archdiocese argues: “The only activity alleged here as 

the basis for the negligent supervision theory is that Defendants 

‘publicly purported’ to implement a policy of informing ‘parish 

communities’ about accusations of abuse by a Priest but ‘never 

informed’ parish communities that Cunningham had been 

accused and failed to tell or concealed from ‘Plaintiffs, Plaintiffs’

parents, guardians, or law enforcement’ that Cunningham ‘was 

or may have been’ abusing minors and/or holding out 

Cunningham as being in good standing and trustworthy. 

[Citations.] Everything else in Paragraph 120 is immaterial.”

As with the first cause of action for the ratification of 

sexual abuse, the Archdiocese’s characterization of the negligence 

cause of action attempts to read out of the complaint the 

allegations that are actually at its center. The “failure to 

supervise” allegation is not limited to failure to inform; as we 

shall discuss, it is questionable whether plaintiffs pursue a claim 

for failure to inform at all. But, even if failure to inform is 

pleaded as a theory of liability, the overall cause of action alleged
36

refers much more broadly to the Archdiocese’s failure to 

supervise its employee who was molesting children. Plaintiffs

specifically alleged that: (1) Father Gleason expressed concern 

that Father Cunningham was bringing boys into the rectory and 

warned Doe 3 “not to trust” Father Cunningham; (2) Father 

Miskella evaluated Father Cunningham as too immature to be a 

pastor and confidentially informed the Vicar for Clergy that he 

should speak with Father Gleason about Father Cunningham; 

but (3) the Vicar for Clergy did not do so; and (4) these and other 

red flags were ignored and Father Cunningham was moved from 

parish to parish, where he was free to continue molesting 

children unsupervised. The Archdiocese ignores these allegations 

in its effort to squeeze plaintiffs’ negligence cause of action into

something fitting its preferred contention regarding protected 

speech. “We need not, however, wear the blinders that 

appellants have fashioned for us.” (Jespersen v. ZubiateBeauchamp (2003) 114 Cal.App.4th 624, 630 (Jespersen).)

B. The Bonni Analysis

Even though we conclude there is much more to the 

negligence cause of action than a “failure to inform,” Bonni 

instructs that we must consider whether the Archdiocese has 

demonstrated that any of the individual negligence claims arise 

from protected speech.

19

19 We disagree with the Archdiocese’s suggestion that we find 

protected activity in the complaint’s introductory allegations that 

in 2018, the Archdiocese publicly apologized for child sexual 

abuse suffered at the hands of priests, and represented that the 

Church needed to be transparent about the perpetrators and 

vigilant in its investigations of allegations of misconduct. As 

Bonni explained, there is a difference between allegations that 
37

In its briefing on the anti-SLAPP motion, the Archdiocese –

whose interest is to characterize the negligence cause of action as 

including as many speech-related claims as possible – identified 

four negligence claims it asserts were based on protected speech:

(1) failure to inform parish communities about allegations of 

abuse against Father Cunningham and instead holding him out 

as trustworthy; (2) failure to communicate the Archdiocese’s 

policy for the prevention of molestation to nonpriest staff and 

members of the community; (3) failure to educate, train and warn 

plaintiffs about sexual abuse; and (4) failure to inform staff who 

were mandated reporters about their duties as mandated 

reporters under the law. The Archdiocese’s assertion of antiSLAPP-protected activity is doubly flawed.

i. The Anti-SLAPP Statute’s Definition of 

Protected Activity Does Not Encompass the 

Right Not to Speak Claimed by the Archdiocese 

Here

The four purported negligence claims identified by the 

Archdiocese have one key factor in common: they are all based 

on a decision not to speak, not speech itself. The Archdiocese 

supply the elements of a claim and allegations of incidental 

background. (Bonni, supra, 11 Cal.5th at p. 1012.) “Allegations 

of protected activity that merely provide context, without 

supporting a claim for recovery, cannot be stricken under the 

anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at p. 394.) 

Plaintiffs seek no relief for the 2018 statements of the 

Archdiocese; these allegations are simply context for the later 

allegations of abuse, and therefore need not be stricken. (Bonni, 

at p. 1017 [allegations raised only as “window dressing” need not 

be stricken].)
38

argues, correctly, that the constitutional right to free speech has 

been held to encompass a right not to speak. (See, e.g., West 

Virginia State Board of Education v. Barnette (1943) 319 U.S. 

624; Beeman v. Anthem Prescription Management, LLC (2013) 

58 Cal.4th 329, 342 [the California Constitution’s “ ‘right to 

freedom of speech, like the First Amendment’s is implicated in 

speaking itself. Because speech results from what a speaker 

chooses to say and what he chooses not to say, the right in 

question comprises both a right to speak freely and also a right to 

refrain from doing so at all, and is therefore put at risk both by 

prohibiting a speaker from saying what he otherwise would say 

and also by compelling him to say what he otherwise would not 

say’ ”].) The right claimed by the Archdiocese in this case—a

claimed right not to warn about known or suspected sexual abuse 

of minors (and to reveal and promote the policies in place to 

prevent it) is not akin to the right claimed in Barnette. This is 

important, for as we now explain, not every decision to refrain 

from speaking falls within the anti-SLAPP statute’s definition of 

protected activity.

The anti-SLAPP law protects only speech and conduct that 

falls within one of four categories enumerated in Code of Civil 

Procedure section 425.16, subdivision (e): “(1) any written or oral 

statement or writing made before a legislative, executive, or 

judicial proceeding, or any other official proceeding authorized by 

law, (2) any written or oral statement or writing made in 

connection with an issue under consideration or review by a 

legislative, executive, or judicial body, or any other official 

proceeding authorized by law, (3) any written or oral statement 

or writing made in a place open to the public or a public forum in 

connection with an issue of public interest, or (4) any other 

conduct in furtherance of the exercise of the constitutional right 
39

of petition or the constitutional right of free speech in connection 

with a public issue or issue of public interest.”

A failure to speak cannot fall in any of the first three 

categories, which protect only “statement[s] or writing[s],” and 

not the failure to make them. If a failure to speak is protected at 

all, it must fall within the fourth category, as “other conduct in 

furtherance of the exercise of the constitutional right of petition 

or the constitutional right of free speech in connection with a 

public issue or issue of public interest.” Indeed, as there is no 

suggestion the failures to speak here related to the Archdiocese’s 

right of petition, the issue is further narrowed. Specifically, does 

plaintiffs’ complaint allege failures to speak which constitute 

“conduct in furtherance of the exercise . . . of the constitutional 

right of free speech in connection with a public issue or issue of 

public interest”?

20

We conclude the failure to speak alleged as a basis for 

liability here is not conduct in furtherance of the right of free 

speech. (Digerati Holdings, LLC v. Young Money Entertainment, 

LLC (2011) 194 Cal.App.4th 873, 885-886 [failure to appear for 

interviews for a documentary film is not in furtherance of the 

right of speech]; Jespersen, supra, 114 Cal.App.4th at pp. 631-632

[attorneys who were sued for malpractice, not for “any act in 

20 We assume without deciding that the Archdiocese could 

establish the “issue of public interest” element. (See Terry v. 

Davis Community Church (2005) 131 Cal.App.4th 1534, 1547 

[statements accusing church youth group leaders of an 

inappropriate relationship with a minor were communications 

that involved issues of public interest, specifically, “the societal 

interest in protecting a substantial number of children from 

predators . . . .”].)
40

furtherance of anyone’s right of petition or free speech, but [their] 

negligent failure to do so on behalf of their clients” could not 

establish they were sued for protected speech]; see also Ojjeh v. 

Brown (2019) 43 Cal.App.5th 1027, 1040-1041 [distinguishing 

Digerati in a case where there was not a complete failure to 

perform; partial acts done in support of an incomplete film can be 

said to have furthered the exercise of free speech rights].)

21

The Archdiocese points to no allegations in the complaint of 

affirmative misrepresentations or concealment and no claims of 

partial speech.22 They have therefore failed to identify a claim 

based on protected speech.

21 Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118, 

124 is not to the contrary. There, the court held that 

“[m]isrepesentation or failure to disclose can be protected 

petitioning activity for purposes of [Code of Civil Procedure] 

section 425.16.” (Ibid.) In that case, the plaintiff alleged both an 

affirmative communication directing that a key document be 

hidden from him during a previous litigation and the defendants’

subsequent silence with respect to the hidden document. (Id. at 

p. 123.) Thus, the court had before it both an affirmative

misrepresentation and a failure to disclose, and was not required 

to analyze whether the latter alone was protected speech. To 

that end, the court distinguished Jespersen, in which the 

attorneys were sued for the negligent failure to act, stating, “This 

differs from the allegations of [defendant’s] affirmative 

nondisclosure and concealment . . . .” (Suarez. at p. 125.) To the 

extent that Suarez stands for the proposition that the antiSLAPP statute always applies to the failure to speak, we 

respectfully disagree.

22 Although the Archdiocese relies heavily on its 

characterization of the negligence claims as being based on a 

failure to speak, it also notes that, in places, the plaintiffs alleged 
41

ii. Allegations of Failure to Speak Are, in Any 

Event, Incidental to the Failure to Supervise in 

the Complaint as Alleged

In their supplemental briefing on remand, the plaintiffs

argue that “an allegation regarding a failure to inform is not itself

the basis for relief under the negligence claims alleged. Instead, 

it provides context to and evidence of the ultimate breach—the 

failure to prevent the underl[y]ing sexual assault.” Plaintiffs 

argue that they are not seeking damages for any failure to speak 

standing alone, but for the sexual abuse that speaking might 

have prevented. As they explain, “the basis for Plaintiffs’

negligence claim is not the failure to inform, but instead the 

failure to supervise its agent and its failure to protect Plaintiffs 

from foreseeable sexual abuse.”

Given the allegations of plaintiffs’ complaint, it is difficult 

to conceive of their allegations of “failure to warn” as supporting

the Archdiocese “concealed” information about Father 

Cunningham and held him out as trustworthy. Paragraph 120 of 

the operative complaint does include both of these allegations. 

However, both are alleged in the alternative. That is, plaintiffs 

allege the Archdiocese breached is duty of care “by failing to tell 

or concealing” that Father Cunningham may have been abusing 

minors “and/or by holding out” Father Cunningham as being 

trustworthy. These allegations do not refer to any specific 

allegations of affirmative representations elsewhere in the 

complaint. That is, plaintiffs do not allege the Archdiocese made 

any actual statements to them regarding Father Cunningham

being trustworthy. Viewed in context, we conclude these few 

allegations – pleaded in the alternative – of affirmative 

misconduct are, in fact, incidental allegations that can be 

disregarded for the purposes of anti-SLAPP. (Baral, supra,

1 Cal.5th at p. 394.) 
42

a claim for relief independent of the claim based on negligent 

failure to supervise. In a case with similar allegations, the court 

explained, “On the negligent supervision and failure to warn 

claims, [plaintiff] will be required to show [the religious 

organization] knew or should have known of [the alleged 

abuser’s] alleged misconduct and did not act in a reasonable 

manner when it allegedly recommended him to serve as 

[plaintiff’s] Bible instructor. [Citations.] For each claim, 

[plaintiff] will also be required to prove the alleged sexual abuse 

occurred, causation, and compensatory damages. [Citation.]”

(Lopez v. Watchtower Bible & Tract Society of New York, Inc.

(2016) 246 Cal.App.4th 566, 591.) In other words, in the present 

setting, there is no claim for failure to warn independent of the 

failure to supervise. 

This is not a case where there are alternative theories of 

liability supported by a failure to, for example, repair property or 

warn of its unsafe condition. (See, e.g., CACI No. 1003 [failure to 

repair or warn of unsafe condition of property].) Plaintiffs do not 

posit a situation in which the Archdiocese could escape liability 

for failing to supervise a priest who was serially molesting minors 

by the simple expedient of warning them about him.23 The 

allegations of failure to warn are only additional allegations of 

irresponsible conduct on the part of the Archdiocese, incidental to 

the claim of failure to supervise, and not subject to attack by an 

anti-SLAPP motion. (Baral, supra, 1 Cal.5th at p. 394.) 

23 In fact, plaintiffs allege that Father Gleason warned Doe 3 

not to trust Father Cunningham, but this did not protect Doe 3 

from Father Cunningham’s abuse.
43

4. The Ruling on the Demurrer Is Not Before Us

The Archdiocese argues that the trial court’s ruling 

sustaining its demurrer with leave to amend is binding on our 

anti-SLAPP motion analysis. Specifically, the Archdiocese

suggests that the order was appealable and the plaintiffs’ failure 

to cross-appeal the order renders it res judicata on the issue of 

whether their complaint stated a claim and the likelihood that 

plaintiffs will prevail on the merits under the second prong of the 

anti-SLAPP statute. We disagree. 

An order sustaining a demurrer with leave to amend is not 

a final judgment and is not otherwise itemized among appealable 

orders. (Code Civ. Proc., § 904.1.) The Archdiocese’s argument is 

based on section 906, which provides, in pertinent part, “Upon an 

appeal pursuant to Section 904.1 or 904.2, the reviewing court 

may review the verdict or decision and any intermediate ruling, 

proceeding, order or decision which involves the merits or 

necessarily affects the judgment or order appealed from or which 

substantially affects the rights of a party . . . .”

The Archdiocese argues that Code of Civil Procedure 

section 906 renders the demurrer ruling not merely reviewable, 

but appealable under Fontani v. Wells Fargo Investments, LLC

(2005) 129 Cal.App.4th 719 (Fontani), disapproved on other 

grounds by Kibler v. Northern Inyo County Local Hospital Dist.

(2006) 39 Cal.4th 192, 203, footnote 5. Plaintiffs’ failure to 

appeal the adverse ruling on demurrer, the argument continues, 

means that plaintiffs are stuck with an adverse ruling on the 

validity of their complaint. 

In Fontani, the trial court denied an anti-SLAPP motion 

and overruled the bulk of a demurrer. The defendant appealed 

and the Court of Appeal reversed the denial of the anti-SLAPP 

motion. The defendant asked that the appellate court also 
44

address the order overruling part of its demurrer under Code of 

Civil Procedure section 906. The court declined on the basis that 

the demurrer ruling did not substantially affect the defendant’s 

rights. (Fontani, supra, 129 Cal.App.4th at p. 736.) In the course 

of its discussion, however, the court stated, “Section 906 does 

allow for an appeal from an interlocutory order that involves the 

merits of, or necessarily affects, an anti-SLAPP order from which 

an appeal is taken. In other words, where the propriety of an 

otherwise nonappealable order affects the validity of an antiSLAPP order, an appeal will lie from the otherwise 

nonappealable order. (See City of Oakland v. Darbee (1951) 

102 Cal.App.2d 493, 504 [227 P.2d 909] [otherwise nonappealable 

order for separation reviewable on proper appeal from order for 

transfer because validity of order for transfer depended on 

validity of order for separation].)” (Ibid.) The dicta on which the 

Archdiocese relies is not, in our view, an accurate statement of 

the law. The statute provides that, on appeal of an otherwise 

appealable order or judgment, the court may review any 

intermediate ruling which necessarily affects the order appealed 

from. It does not render an otherwise nonappealable 

intermediate ruling appealable, and we disagree with any 

language in Fontani which suggests otherwise.24

24 The only case that Fontani cites in the passage quoted in 

the text, Oakland, supra, 102 Cal.App.2d 493, supports our 

conclusion. There, the plaintiff had brought an eminent domain 

action against a number of defendants or groups of defendants, 

each of whom owned a different parcel of property the city sought 

to condemn. One set of defendants successfully moved to 

separate the proceeding against them and transfer it to the 

county in which they resided. The plaintiff appealed the 

appealable transfer order; but the separation order was not 
45

Even under the reviewable rule, the demurrer ruling in our 

case is not reviewable. A second case cited by the Archdiocese, 

Maranatha Corrections, LLC v. Department of Corrections and 

Rehabilitation (2008) 158 Cal.App.4th 1075, 1084, illustrates 

why. 

Unlike the present appeal, the order sustaining the 

demurrer in Maranatha Corrections preceded the order on the 

anti-SLAPP motion, so at least as a theoretical matter, the 

demurrer could have affected the subsequent anti-SLAPP ruling. 

Here, the ruling on the demurrer did not affect, and could not 

have affected, the order denying the anti-SLAPP motion: The 

order on the demurrer came after the court had already denied 

the anti-SLAPP motion.

DISPOSITION

The order denying the anti-SLAPP motion is affirmed. The 

Archdiocese shall pay plaintiffs’ costs on appeal.

RUBIN, P. J.

WE CONCUR:

BAKER, J. KIM, J.

appealable. The Court of Appeal concluded that the separation 

order could nonetheless be reviewed on appeal from the transfer 

order, as an intermediate ruling which necessarily affected the 

transfer order. (Oakland, at pp. 504-505.) The issue was one of 

reviewability, not ab initio appealability. The holding in 

Oakland does not suggest that plaintiffs here could have 

appealed the demurrer ruling or that the failure to do so had 

some binding effect on the anti-SLAPP motion.