New trial motions; grounds:
Santillan v. Roman Catholic Bishop of Fresno (2012) __ Cal.App.4th __ (Second Dist., Div. 8.) George Santillan and his brother,
Howard Santillan, sued the Roman Catholic Bishop of Fresno for childhood sexual abuse by a former priest, Anthony Herdegen. The jury found that the plain- tiffs had been abused as boys, but that the diocese did not know or have reason to know that Herdegen had committed the abuse while the abuse was still occur- ring. Because this resolved the statute-of- limitations issue in favor of the church, the jury did not make other findings. While the jury was deliberating,
George’s lawyer received a phone call from a man who said he had been an altar boy at the same parish and had been inappropriately touched by Herdegen. When his mother had report- ed this to the principal of the parish school, he was expelled. Based on this information, the plaintiffs brought a motion for new trial based on newly- discovered evidence. The trial court granted the motion as to Howard, because the new witness said he reported the incident in 1967, at a time when Howard was still being molested by Herdegen. The motion was denied as to George, because the evidence showed his abuse had stopped in late 1965. The Court of Appeal affirmed. It rejected the church’s claim that Howard had not been diligent in failing to report the new evi- dence to the court immediately. The court noted that the cases the church relied on all involved bench trials, or situations where new evidence was discovered dur- ing the trial, but not raised until after the decision. Here, the new evidence was not available until the jury was already delib- erating. The plaintiffs were not required to bring the evidence to the court’s atten- tion during deliberations. The court found that the new evidence was material and supported the trial court’s decision to grant Howard a new trial.
Whistleblowers; Labor Code
section 1102.5 and Education Code section 87160. Mize-Kurman v. Marin Community College Distr. (2012) __ Cal.App.4th __ (First Dist., Div. 2.) Plaintiff was an administrator at the
defendant community-college district. She made certain disclosures to her supervisors, including interference in the hiring process for the director of ESL support; her concern that a proposed scholarship fund that was limited only to Latino students was unconstitutional; that the district’s policy of allowing stu- dents who were in arrears on their fees to
register was illegal; and that she believed that the district was violating the law in seeking residency information from stu- dents. She sued, claiming she had been retaliated against. At trial, the court gave certain instructions based on the federal whistleblower statute, which she contend- ed included restrictions not included in the California whistleblower statutes. The jury’s verdict was against her. On appeal, she asserted instructional error. Reversed. Some of the restrictions included in the court’s instructions based on federal law were not a part of California law, and should not have been
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A little ADVANTAGE can go a long way. The Smart Choice
FEBRUARY 2012 The Advocate Magazine — 85
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