Filed 4/29/21

CERTIFIED FOR PUBLICATION

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 and Shea S. Murphy 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 it was vicariously liable for

ratifying the molestation and directly liable for its own 

negligence in failing to supervise the priest. 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 failed to 

supervise the priest constituted speech or litigation conduct 

protected by the anti-SLAPP statute. We disagree; the gravamen 

of the suit against the Archdiocese is not speech – it is the 

molestation and failure to supervise. We therefore affirm the 

trial court’s denial of the anti-SLAPP motion.

FACTUAL AND PROCEDURAL BACKGROUND

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, St. Mary, and St. Lawrence Martyr). At the time 
3

the anti-SLAPP motion was granted, 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. 

For our purposes and 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. 

This action alleges that the Archdiocese is liable for Father 

Cunningham’s alleged acts of molestation.

2. The Facts as Alleged in the First Amended Complaint

The operative complaint is the first amended complaint. 

The allegations paint the picture of an Archdiocese which was 

willfully blind to its strong suspicions – and, perhaps, actual 

knowledge – of Father Cunningham’s misconduct. Plaintiffs 

allege that, rather than taking curative action in response to 

suspicions of and accusations against Father Cunningham with 

investigations, supervision, and limitation of his access to 

children, the Archdiocese swept the charges under the proverbial 

rug and simply reassigned Father Cunningham to another 

parish, where he was free to molest again.

We discuss the allegations in some detail, with particular 

attention to the allegations by which plaintiffs assert the 

Archdiocese is liable for Father Cunningham’s acts of abuse and 

molestation.

1

1 As we shall discuss, 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. The Archdiocese’s Preexisting Policy for the 

Prevention of Child Molestation by Priests

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 to be 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.

One of the boys who received the attention of Father 

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

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 relevant to the issue of whether 

the complaint arises from protected activity. We nevertheless 

include a detailed statement of the factual allegations in order to 

provide context for our analysis of the first prong.
5

church. One day in 1991, when Father Cunningham was aware 

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 had come 

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 

policy to confront the violator and report the violation to the 

Vicar for Clergy. 

According to the complaint, at St. Mary’s, Father 

Cunningham continued to violate the policy – he spent 

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

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. 
6

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 rectory bedroom. 

One of these boys was Doe 2 – Father Cunningham 

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

rectory 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 office where Doe 3 was working alone 

and molested him by touching his genitals. 

Doe 4 was an altar server at St. Mary’s. 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. She suspected that he may be acting 

inappropriately with the boys. 

Plaintiffs also alleged that Father Miskella, another priest 

at St. Mary’s, 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.” 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 the 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 with him, 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

In 2001, Father Cunningham was promoted to pastor and 

assigned to another parish. He allegedly continued his 

inappropriate conduct with boys. In 2004, he was assigned to yet 

another parish, and his molestation continued. Finally, after he 

was discovered (on a group trip to Europe) alone in a hotel room 

with a boy, holding the boy’s belt in his hands, Father 

Cunningham took a leave of absence from his position. 

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 

whom we refer to as Roe – brought suit against Father 

Cunningham. In 2017, the Los Angeles County Sheriff

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, 
10

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. 

3. 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 on this appeal.

3

Before proceeding to the formal causes of action, the 

complaint sets forth 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 

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

claim. Ultimately, plaintiffs orally dismissed the Unruh Act 

cause of action with prejudice.
11

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 

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 alleged, “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.” 
12

In support of this claim, the complaint expressly relied on 

the fact that, upon learning of Roe’s civil complaint against 

Father Cunningham and the criminal investigation, the 

Archdiocese stood by Father Cunningham by paying for his 

personal lawyer and supporting his defense. 

The second cause of action is for negligence. Plaintiffs 

alleged that 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 alleged, “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 alleged 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 

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 
13

Plaintiffs and their parents or guardians as being in good 

standing and trustworthy.” 

Next, plaintiffs alleged 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 also alleged 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 alleged 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

4. The Demurrer

On August 29, 2019, defendants demurred. The demurrer 

raised numerous grounds, including misjoinder of plaintiffs, 

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

5

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.

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 
14

Plaintiffs opposed the demurrer. The trial court heard the 

demurrer and anti-SLAPP motion together. 

5. 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 court can 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 

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 

the complaint did not specifically identify what each defendant 

purportedly did to be liable to each plaintiff. 
15

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’ Anti-SLAPP Motion

Here, 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 sex abuse, the Archdiocese

argued that the only allegations against it were its support of 

Father Cunningham in Roe’s civil action and the sheriff’s 

criminal investigation – conduct it argued was all 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 sex 

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

reporters about their duties as mandated reporters under the 

law.

C. Plaintiffs’ Opposition

Plaintiffs’ opposition to the motion argued that the speech 

and petitioning conduct identified in the Archdiocese’s motion 
16

was 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 was actionable. 

Plaintiffs explained that the Archdiocese was aware of Father 

Cunningham’s molestation and routine violation of its policies for 

the prevention of molestation. Plaintiffs argued that, 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 multiple theories, including negligent supervision and 

retention of Father Cunningham, which is not protected speech 

or litigation activity. To the extent it was also based on negligent 

failure to comply with mandatory reporter statutes and a 

negligent failure to educate, train, or warn, plaintiffs argued that 

inaction does not rise to the status of protected conduct. 

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, 

“[t]hat, however, is contrary to the allegation that the acts that 

make the Archdiocese liable ‘in the present case’ are actions in 
17

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.” 

As to negligence, the Archdiocese re-asserted that the 

negligence claims arose out of protected speech, and more 

precisely, its decision to not speak. 

E. Hearing, Ruling and Appeal

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 it 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 
18

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 gravamen of the 

cause of action was not protected conduct. The anti-SLAPP 

motion was denied.6

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

several grounds with leave to amend.7

The Archdiocese filed a timely notice of appeal from the 

denial of its anti-SLAPP motion. 

6 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.” The suggestion 

that the court based its ruling on anything other than an 

application of the law to the facts alleged has no place in the 

Archdiocese’s opening brief (see Bus. & Prof. Code, § 6068, 

subd. (c)) and, equally to the point, is unsupported by the record.

7 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 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, we express no opinion.
19

DISCUSSION

1. Standard of Review

“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. [Citation.] 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-

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.)

We consider separately the extant two causes of action 

alleged in the complaint.8

8 Under Baral v. Schnitt (2016) 1 Cal.5th 376, 392-393, a 

defendant may direct an anti-SLAPP motion to a distinct claim 

based on allegations of protected activity within single a cause of 
20

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.

“ ‘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. [Citations.] 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. 

action which alleges both protected and unprotected activity. 

Here, although the notice of motion filed by the Archdiocese 

suggested it was directed to individual allegations of protected 

activity, the motion itself argued that the entirety of each cause of 

action arose from protected activity. The Archdiocese does not 

contend that plaintiffs alleged a mixed cause of action. Rather, it 

contends, by selective citation to the complaint, that plaintiffs’ 

claims arise out of public statements and alleged nondisclosures.

On appeal, the Archdiocese cites Baral but not for the point that 

the trial court should have granted the anti-SLAPP motion as to 

certain allegations even if court was correct in denying the 

motion as to other parts of the complaint. 
21

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

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

may occur when an employer learns of misconduct and fails to 

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

The Archdiocese argues that it has established the child 

sexual abuse cause of action arises from protected activity 

because it is based on the Archdiocese’s conduct in the Roe 

litigation and sheriff’s investigation. We are unpersuaded for two 

reasons. First, the argument is based on a mischaracterization of 

the complaint. Second, it is without legal merit. 

A. The Archdiocese Mischaracterizes the Complaint

The first amended complaint exceeds 50 pages. Before 

reciting the causes of action, it sets forth, at great length, the 

course of Father Cunningham’s employment with the 

Archdiocese, his molestation of the plaintiffs, and the 

Archdiocese’s failure to respond to the reports and suspicions of 

victims, parents, priests, and other parish staff. Although the

specific allegations within that part of the complaint entitled, 

“First Cause of Action [¶] Child Sexual Abuse/Sexual Battery”

encompass only four pages of the complaint, the first cause of 

action incorporates by reference “all paragraphs of this 

Complaint, as if fully set forth herein.”

The Archdiocese overlooks this salient incorporation by 

reference, and asserts instead that the cause of action is limited 

to the allegations of those four pages. It then dismisses the first 

page of those allegations as “a string of generalizations.” Among 

those allegations the Archdiocese finds dismissable are the 

incorporation by reference paragraph, and the paragraph alleging

as follows: “For the reasons set forth in the incorporated 

paragraphs of this Complaint, the sexual abuse of Plaintiffs by 
22

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.” 

Having excised from the complaint any allegations that do 

not fit within its restrictive view of the pleading, the Archdiocese 

argues that the only allegations of wrongful conduct against it 

are those which arise from its defense of Father Cunningham in 

the Roe lawsuit and the criminal investigation. The Archdiocese 

asserts, “Neither the entirety of the Complaint nor Cunningham’s 

conduct was the question presented to the Court. The alleged 

basis for Defendants’ liability is the litigation activity that 

ratified the abuse.”

We disagree. In our review of the anti-SLAPP motion we 

do not ignore 23 pages of specific allegations of, among other 
23

things: (1) Father Cunningham’s sexual abuse of plaintiffs; 

(2) Father Cunningham’s repeated violation of the Archdiocese’s 

policy to prevent molestation; (3) priests’ and other parish 

employees’ knowledge of Father Cunningham’s violations of this 

policy; (4) complaints by parishioners against Father 

Cunningham; (5) statements acknowledging that Father 

Cunningham was “immature” – the code for suspicions of 

molestation; (6) repeated failures to investigate; (7) the 

disappearance of files containing complaints about Father 

Cunningham; and (8) the reassignments and promotion of Father 

Cunningham that allowed the molestation to continue. We find it 

is this conduct that forms the basis of the allegations against the 

Archdiocese, not the selected allegations that ratification was 

also evidenced by the Archdiocese’s defense of Father 

Cunningham in the Roe case and the criminal investigation. 

Because the Archdiocese chooses to ignore the bulk of the 

allegations of the complaint against it, it makes no attempt to 

argue that these actual allegations are protected activity under 

the anti-SLAPP law.

B. The Argument Is Without Merit

The first cause of action is for child sexual abuse; there is 

no allegation that the Archdiocese would be liable simply for its 

litigation conduct in the absence of the sexual abuse the 

Archdiocese allegedly ratified. Plaintiffs are not alleging, for 

example, that the Archdiocese defamed them in motions in 

limine, or that its payment of Father Cunningham’s defense costs 

was an improper use of parishioners’ contributions. Plaintiffs are 

alleging that this conduct is actionable only to the extent that it 

evidences the Archdiocese’s ratification of Father Cunningham’s 

molestation.
24

“[A] claim may be struck only if the speech or petitioning 

activity itself is the wrong complained of, and not just evidence of

liability or a step leading to some different act for which liability 

is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) Contrary to the 

Archdiocese’s contention, plaintiffs’ sexual abuse claim does not 

arise from its public statements and alleged nondisclosures. 

Instead, the complaint’s allegations that the Archdiocese knew 

that Father Cunningham violated policies to prevent molestation, 

destroyed or hid files containing complaints about him, and 

reassigned and promoted him to other parishes in which he 

continued to molest children demonstrate that plaintiffs’ claims 

of sexual abuse did not arise from public statements or 

nondisclosure but from the Archdiocese’s role in abetting Father 

Cunningham’s continuing abuse.

Not only is the litigation conduct on which the Archdiocese

focuses mere evidence of liability, it is evidence of the 

Archdiocese’s ratification of the tort, not the tort itself (the sexual 

abuse). When a plaintiff seeks to hold a defendant vicariously 

liable for another party’s tortious conduct, the court’s anti-SLAPP 

analysis focuses on the underlying tort, not the conduct by which 

the defendant is allegedly vicariously liable. (See Simmons v. 

Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1046-

1047 [hiring the party who committed the tort; tort governs for 

anti-SLAPP purposes]; Spencer v. Mowat (2020) 46 Cal.App.5th 

1024, 1037 [conspiring with the parties who committed the tort; 

tort governs]; Novartis Vaccines & Diagnostics, Inc. v. Stop 

Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 

1284, 1295-1297 [conspiring to commit the tort and ratifying it; 

tort governs]; but cf. Contreras v. Dowling (2016) 5 Cal.App.5th 

394, 399, 409-410 [attorney sued for conspiring with his client 
25

merely by providing routine legal services; attorney’s conduct 

governs].)

Here, then, the focus must be on the alleged acts of sexual 

abuse and battery that form the basis of the tort cause of action, 

not the acts of the Archdiocese by which it is alleged to be 

vicariously liable for those acts. Those underlying tortious acts 

are not protected activity. 

3. Second Cause of Action - Negligence

A similar analysis defeats the Archdiocese’s argument that 

the negligence cause of action is based on protected speech. Here, 

a number of the plaintiffs were specifically alleged to have been 

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

the legal duty owed to school children.

“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.)
26

A. The Archdiocese Mischaracterizes the Complaint

Prior to the complaint’s allegations of “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, 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.

Once again, the Archdiocese engages in a 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 Catholic 

priest; and (3) the Archdiocese knew or should have known of 
27

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.”

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 
28

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

relief is protected ‘failure to inform.’ ”

To the extent the allegations are conclusory, they are 

reinforced by the specific allegations of fact in the preceding 

pages of the complaint. The numerous allegations of nonspeechrelated negligent conduct – failure to supervise, negligent 

retention, failure to investigate – which form the bulk of this 

cause of action cannot be simply brushed away 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.” 

In our view, the “failure to supervise” allegation is not 

limited to failure to inform, but refers much more broadly to the 

Archdiocese’s failure to supervise its employee who was 

molesting children. For example, 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 
29

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

flags were ignored and Father Cunningham was free to continue 

molesting children unsupervised. All of these allegations are 

brushed aside in the Archdiocese’s effort to squeeze plaintiffs’ 

negligence cause of action into the realm of protected speech.

B. The Argument Is Legally Meritless

Even if we agreed that the negligence cause of action was 

limited to allegations based on a failure to inform plaintiffs of the 

danger presented by Father Cunningham, we would still 

conclude the cause of action was not based on protected speech.9

As explained by our Supreme Court in Park, “a claim is not 

subject to a motion to strike simply because it contests an action 

or decision that was arrived at following speech or petitioning 

activity, or that was thereafter communicated by means of speech 

or petitioning activity. Rather, a claim may be struck only if the 

speech or petitioning activity itself is the wrong complained of, 

and not just evidence of liability or a step leading to some 

different act for which liability is asserted.” (Park, supra, 

2 Cal.5th at p. 1060, italics added.)

As we alluded to earlier, there may be some legal claims 

involving child abuse that can be fairly said to be based on 

protected activity and thus may properly be subject to antiSLAPP motions. To add another example, if a religious 

institution were to inform its community of allegations that one 

9 The Archdiocese argues that the complaint is not limited to 

a failure to inform plaintiffs of the risk presented by Father 

Cunningham, but also includes allegations of a failure to inform 

nonpriest parish employees of the policy to prevent molestation 

and a failure to inform mandated reporters of their statutory 

duties. Our analysis is the same with respect to all three types of 

failure to inform.
30

of its youth leaders was involved in an inappropriate sexual 

relationship with a minor, and the accused sues the institution 

for defamation, the cause of action arises from speech concerning 

a matter of public interest. (Terry v. Davis Community Church

(2005) 131 Cal.App.4th 1534, 1539, 1546.)

This is consistent with Park; the tortious conduct in our 

example is the making of the statement itself. But that does not 

mean that when, as here, a church is sued for negligence for 

failing to so warn its members, that the negligence cause of 

action similarly arises from speech. In the defamation example, 

it is the making of the statement itself which is alleged as the 

injury-producing conduct. But in the case of a negligent failure to 

warn, it is not the failure to speak which directly caused injury, 

but the fact that the priest about whom warning should have 

been made went on to molest children. The failure to warn is a 

mere step leading to the molestation for which liability is 

asserted.

This is particularly so here, where, despite the 

Archdiocese’s argument to the contrary, the negligence cause of 

action is not restricted to failure to inform. The failure to inform 

is merely one element of an overall failure to supervise, which 

failure is alleged to have also included failures to report 

wrongdoing observed in violation of the Archdiocese’s own 

policies; failures to document complaints when they were made;

and failures to investigate complaints when they were made. 

Most critically, the complaint alleges that the Archdiocese knew 

Father Cunningham was openly violating the Archdiocese’s 

policies to prevent molestation, and the only response by his 

supervisors was to counsel him not to do that – a response the 

complaint alleges was clearly inadequate. While failure to inform 
31

is a part of the Archdiocese’s failure to supervise Father 

Cunningham, liability is based on the failure to supervise, not the 

particular words unspoken.

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 

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 its complaint. 
32

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 

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.) This dicta, on which 

the Archdiocese relies, mischaracterizes section 906. Section 906 

simply 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.10

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

the text, City of Oakland v. Darbee, 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 
33

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.

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 

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. (City of Oakland, at pp. 504-505.) The issue was 

one of reviewability, not ab initio appealability. The holding in 

City of 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.
34

DISPOSITION

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

Archdiocese shall pay plaintiffs’ costs on appeal.

RUBIN, P. J.

I CONCUR:

KIM, J.
Charles Ratcliff, Jr., et al. v. The Roman Catholic Archbishop of 

Los Angeles et al.

B302558

BAKER, J., Concurring 

I agree the order denying defendants’ anti-SLAPP motion 

should be affirmed because there has been no adequate showing 

that any of the claims in plaintiffs’ complaint should be stricken 

as arising from activity protected by the anti-SLAPP statute, 

Code of Civil Procedure section 425.16. (Park v. Board of 

Trustees of California State University (2017) 2 Cal.5th 1057, 

1060 [“[A] claim may be struck only if the speech or petitioning 

activity itself is the wrong complained of . . .”] (Park).) I write 

separately to explain I find it unnecessary, in reaching that 

conclusion, to rely on a judgment about what constitutes the 

“gravamen” of the lawsuit against defendants or to further 

cement in anti-SLAPP jurisprudence the rationale advanced in 

Spencer v. Mowat (2020) 46 Cal.App.5th 1024. 

Our Supreme Court’s anti-SLAPP precedents hold we must 

determine whether anti-SLAPP protected activity is at issue by 

considering the elements of the claims asserted by a plaintiff and 

examining the complaint to determine what actions by a 

defendant provide the basis for that defendant’s asserted 

liability. (See, e.g., Park, supra, 2 Cal.5th at 1063 [“I]n ruling on 

an anti-SLAPP motion, courts should consider the elements of 

the challenged claim and what actions by the defendant supply 

those elements and consequently form the basis for liability”]; 

Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035-1036 (Ojjeh).) 

At the same time, however, “[a]llegations of protected activity 
2

that are “‘“merely incidental” or “collateral”’ or that ‘merely 

provide context, without supporting a claim for recovery, cannot 

be stricken under the anti-SLAPP statute.’” (Ojjeh, supra, 43 

Cal.App.5th at 1036, citing Baral v. Schnitt (2016) 1 Cal.5th 376, 

394.)

Here, the basis for defendants’ liability is predicated, in 

essence, on acts that plaintiffs believe amount to authorization or 

ratification of child sexual abuse and on various repeated alleged 

failures of supervision (including failure to investigate complaints 

of abuse and to take appropriate corrective action). In describing 

the factual predicate for such liability, the operative complaint 

does at times refer to activity that would be protected under the 

anti-SLAPP statute—most prominently, allegations that 

defendants paid attorneys to defend the allegedly abusive priest 

and to take positions adverse to plaintiffs in court. In my view, 

however, these references are collateral, often rhetorical, and not 

included to support a claim for recovery. As such, they cannot be 

the proper subject of a special motion to strike. (Ojjeh, supra, 43 

Cal.App.5th at 1036.)

I read plaintiffs’ briefing in this court to essentially endorse 

my view, i.e., that allegations concerning defendants’ facilitation 

of attorney representation for the allegedly abusive priest are 

merely collateral. Insofar as plaintiffs’ future prosecution of the 

suit reveals they instead regard the references to activity that 

would be protected by the anti-SLAPP statute to be the factual 

predicate for liability, the trial court would retain discretion to 

permit defendants to renew their anti-SLAPP challenge. (Code 

Civ. Proc., §§ 425.16, subd. (f), 1008.)

BAKER, J.