Petition for Writ of Certiorari — Archdiocese of Milwaukee v. Superior Court of California
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Supreme Court, U.S
/ FILED
No, 031444 APR 13 2004
IN THE
SUPREME COURT OF THE UNITED STATES
MARCH TERM, 2004
ARCHDIOCESE OF MILWAUKEE
Petitioner,
VS.
SUPERIOR COURT OF CALIFORNIA,
Respondent,
and
ERIC NATHAN PAINO,
Real Party-In-Interest.
On Petition For Writ Of Certiorari To The Court of Appeals,
Fourth District, Of California
PETITION FOR WRIT OF CERTIORARI
MATTHEW J. FLYNN
Counsel of Record
O. THOMAS ARMSTRONG
DAVID P. MUTH
Counsel for Petitioner
QUARLES & BRADY LLP
411 EAST WISCONSIN AVENUE
MILWAUKEE, WI 53202-4497
(414) 277-5000
—
QUESTIONS PRESENTED FOR REVIEW
i.
DOES THE FREE EXERCISE CLAUSE OF
THE FIRST AMENDMENT PROHIBIT A
STATE FROM EXERCISING SPECIFIC
PERSONAL JURISDICTION OVER A NON-
RESIDENT RELIGIOUS ORGANIZATION
BASED SOLELY ON ITS RELIGIOUS
AUTHORITY TO DENY ITS CLERGY THE
RIGHT TO EMPLOYMENT BY A
SEPARATE RELIGIOUS ORGANIZATION
RESIDING IN THE FORUM STATE?
DOES THE DUE PROCESS CLAUSE
PERMIT THE EXERCISE OF SPECIFIC
PERSONAL JURISDICTION OVER A
NON-RESIDENT EMPLOYER BECAUSE IT
FAILS TO PREVENT OR HINDER AN
EMPLOYEE FROM ACCEPTING
EMPLOYMENT - FROM A_ SEPARATE
FORUM EMPLOYER WHERE MIT IS
FORESEEABLE THAT THE EMPLOYEE
MIGHT COMMIT A SPECIFIC TYPE OF
TORT WHILE EMPLOYED BY THE
SUBSEQUENT FORUM EMPLOYER?
PARTIES TO THE PROCEEDING
The following individuals and entities are parties to the
proceeding in the Court below: the Superior Court of
California, Respondent in this matter as required by California
mandamus procedure; Real Party-in-Interest Eric Nathan Paino,
an individual living in Orange County, California; the Roman
Catholic Bishop of Orange, a Diocese of the Roman Catholic
Church incorporated in California; the Archdiocese of
Milwaukee, an Archdiocese of the Roman Catholic Church
incorporated in Wisconsin; the Estate of Sigfried F. Widera; and
Does | through 100.
Petitioner, the Archdiocese of Milwaukee, has no parent
corporation, and there are no publicly held companies that hold
any stock of the Petitioner.
il
~~
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........cccccccccceccececeees i
PARTIES TO THE PROCEEDING ..........ccecccccesccsseccecesseeeees ii
EP TO INTE sissiseseisrsnsnrsisescscadsessresscenencsovarcerccavene lil
MMS OP PATER Coss csicevenverssosssecencsececencoosecsscensncsesess Vv
PETITION FOR WRIT OF CERTIORARI ........cccccceccscecceseceess |
EES RT en l
STATEMENT OF THE BASIS FOR JURISDICTION ........... 2
CONSTITUTIONAL PROVISIONS AND
BAPE E Re UVLO cnssuscossccsscncsscocsereceacsacossocvorenae 2
I cia ailsbiadsikts sia ld ssniisdssacasennavessananvesvane 3
PEPE RORMITE CF TEER CASE 0.0.....cccececcorscscsossessossscosesessscacones 5
A. Factual Background ..............c..ccceeeee 5
B. Underlying General
Jurisdictional Facts..............cccccccceeee. 11
Cc. Proceedings Below..................ssccssses. 11
REASONS FOR GRANTING THE PETITION ..............0.0-+. 16
I. CALIFORNIA’S EXERCISE OF
PERSONAL JURISDICTION
VIOLATES RIGHTS AFFORDED
RELIGIOUS INSTITUTIONS BY THE
FREE EXERCISE CLAUSE OF THE
FIRST AMENDMENT .............ccccccccccceseseeeees 16
ill
TABLE OF CONTENTS
(Continued)
Page
Il. CALIFORNIA’S EXERCISE OF
SPECIFIC PERSONAL
JURISDICTION OVER THE
MIL\VAUKEE ARCHDIOCESE
CANNOT BE RECONCILED WITH
THE REQUIREMENTS OF DUE
PRR i visrccsatubistssisnasiiagebetaneiesSudedsiciegisasabecebs 20
A. A Non-Resident Defendant
Employer is not Subject to
Personal Jurisdiction Under the
Calder “Effects” Test Where it
Allegedly Fails to Take
Appropriate Steps to Prevent a
Potential Future Tort in the
Forum by a Former Employee
Over Whom the Defendant Has
| IRE nee Pena eee ee 20
B. The Exercise of Personal
Jurisdiction by the State of
California Does Not Comport
With Fundamental Fairness or
Substantial Justice.................0sseee eo
CE IS cisactesitbdesdisendided cates sk eptdaiaklcs Pe idninsexeisesesses 27
iV
TABLE OF AUTHORITIES
Page
CASES
Archdiocese of Milwaukee v. Superior Court
112 Cal. App. 4" 423, 5 Cal. Rptr. 3d 154
Cpa sinsshininniricniiaienssaknlidniaadianicn tie eee passim
Asahi Metal Industry Co. v. Superior Court, 480
Wes WOME CUNT caibdiscviscineniiettidantieateniecienid bose 13, 24
Burger King Corp..v. Rudzewicz, 471 U.S. 462
CRIED wisi scetsicéshdcalie etait ek ah: 13, 21, 25, 27
Calder v. Jones, 465 U.S. 783 (1984) v.ccccccccccsessssssssesoseee passim
; Gonzalez v. Roman Catholic Archbishop of
PT, BIO Te Fic sosccnieteadctrniithsananiiisiassoieseeesas 19
i Helicopteros Nacionales de Columbia v. Hall,
Fe Girls WP i iriascansTbiceadhaniehcestuaiiabeantenieea aes 25
Kedroff v. St. Nicholas Cathedral of Russian O.
Church, 344 U.S. 94 (1952) 0.0.0.0... Spbbcinibesinbserescsrecanceetooas 19
Kulko v. Superior Court, 436 U.S. 84 (1978)...cccccccccccscssseseoce 25
Moran v. Metropolitan District Council of
Philadelphia and Vicinity, 640 F. Supp. 430
CREA. DE: TOR sicvinintantinitipinetieriaiee tite oe 26
i Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.
j 2d 302, 533 N.W.2d 780 (1995)....c.ccccccccscecssssessesceceseseeeees 13
Randi W. v. Muroc Joint Unified Sch. Dist., 14
Cal. App. 4" 1066, 929 P. 2d 582 | SER EET 4
Richelle L. v. Roman Catholic Archbishop of
San Francisco, 106 Cal. App. 4" 257, 130
Sib, BOI. BOW GE Ge hiscsissstecesctesseindscicbecccscécertcosconsovacese 13
Serbian Eastern Orthodox Diocese of America
and Canada v. Milivojevich, 426 U.S. 696
SEF UE wwchissesitebninisbistiiaecaadieediele eksadninceas sie 19
Watson v. Jones, 80 U.S. 879 (1871) v.ccccccccssssessesscsesscsseceececes 18
Wisconsin v. Yoder, 406 U.S. 205 (1972)...ccccccccscssescsssssereeeces 19
; Vv
ere. TTC
OE LLL
TABLE OF AUTHORITIES
(Continued)
World-Wide Volkswagen Corp. v. Woodson, 444
J.B. SOD CG piss inncininicnisaticeksanbniantinnekenedontatdiies
2B ULB... GEZS TED scccsinntevintviuntniedbaaanaiaaibaiiien
California Code of Civ. Proc. $410.1 O.....ccccccccseceeeeeeees
OTHER AUTHORITIES
Former Employer’s or Supervisor’s Tort
Liability to Prospective Employer or Third
Person for Misrepresentation or
Nondisclosure in Employment Reference,
6B ALR: F | icra iia
James T. O’Reilly & Joan M. Strasser, Clergy
Sexual Misconduct: Confronting The
Difficult Constitutional And Institutional
Liability Issues, 7 St. Thomas L. Rev. 31, 44
C SPIED .:sscvcstercassusssvsenciibael sivanaaseeniaanineeaabeaanaiian
Liability of Church or Religious Organization
for Negligent Hiring, Retention, or
Supervision of Priest, Minister or Other
Clergy Based on Sexual Misconduct, 101
POR Ss: | RO Ee
Supreme Court Rule 10(6).....sscsccsssossssccrssssssvesvseceseoeees
v1
No.
IN THE
SUPREME COURT OF THE UNITED STATES
MARCH TERM, 2004
ARCHDIOCESE OF MILWAUKEE
Petitioner,
vs.
SUPERIOR COURT OF CALIFORNIA,
Respondent,
and
ERIC NATHAN PAINO,
Real Party-In-Interest.
ON PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS, FOURTH DISTRICT,
OF CALIFORNIA
PETITION FOR WRIT OF CERTIORARI
Petitioner, the Archdiocese of Milwaukee, (hereinafter
“Milwaukee Archdiocese”) respectfully moves this Honorable
Court to issue a writ of certiorari to review the published
opinion of the California Court of Appeals entered on
October 1, 2003, and the California Supreme Court Decision on
January 14, 2004 denying the Archdiocese’s Petition for
Review.
OPINIONS BELOW
The opinion of the California Court of Appeals, 4"
District, affirming the trial court’s exercise of personal
l
jurisdiction over the Milwaukee Archdiocese is officially
reported at 112 Cal. App. 4" 423, 5 Cal. Rptr. 3d 154 (2003),
and appears in Petitioner’s Appendix at A-1 through A-29. The
California Supreme Court, in an unpublished order, denied the
Archdiocese’s Petition For Review. That denial appears in
Petitioner’s Appendix at B-1.
STATEMENT OF THE BASIS FOR JURISDICTION
3 The opinion of the California Court of Appeals
sought to be reviewed was rendered on October 1, 2003.
2. Petitioner’s timely Petition For Review to the
California Supreme Court was denied on January 14, 2004.
a Petitioner invokes the jurisdiction of this Court
pursuant to 28 U.S.C. §1257(a) and Rule 10(c), Rules of the
Supreme Court of the United States, in that California’s
exercise of jurisdiction over the Milwaukee Archdiocese
violates the Free Exercise Clause of the First Amendment to the .
United States Constitution, and is incompatible with this
Court’s decisions regarding the minimum contacts necessary to
establish specific personal jurisdiction over a non-resident
defendant in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
There are no federal statutes at issue in this Petition.
This Petition questions California’s exercise of personal
jurisdiction over the Milwaukee Archdiocese consistent with
the First and Fourteenth Amendments to the United States
Constitution, and California Code of Civ. Proc. §410.10.
INTRODUCTION
This case questions whether the Free Exercise Clause of
the First Amendment prohibits a state from exercising specific
personal jurisdiction over a non-resident religious organization
predicated upon its failure to prevent a member of its clergy
from pursuing his/her vocation with a separate and distinct
religious organization located in the forum state. Petitioner, the
Milwaukee Archdiocese, respectfully submits that where the
non-resident religious organization has no legal ability to
prevent such prospective employment, but only the religious
authority to do so, a State may not, consistent with the Free
Exercise Clause, impose personal jurisdiction over the non-
resident religious organization.
The California Court of Appeals held that even though
the Milwaukee Archdiocese could not legally prevent its priest,
Sigfried Widera, previously convicted in 1973 of a sexual
molestation offense in Wisconsin, from resigning his affiliation
with the Milwaukee Archdiocese in 1981, and accepting
employment with a separate and distinct California religious
organization, the Archdiocese did have the ecclesiastical
authority to prevent that employment under the religious
doctrine of “excardination,” requiring the Archdiocese to
approve Widera’s new employment with a foreign diocese. The
court then held that the Archdiocese’s failure to. prevent
Widera’s employment with the Diocese of Orange constituted
“purposeful availment” of California’s laws under the “effects”
test for determining a state’s constitutional exercise of specific
personal jurisdiction, established in Calder vy. Jones, 465 U.S.
783 (1984), which permits the exercise of jurisdiction over a
non-resident defendant where it engages in intentional and
potentially harmful conduct expressly aimed at, or targeting, the
forum state.
A second issue posed by this case is whether the Calder
“effects” test permits the exercise of jurisdiction over a non-
resident employer who is alleged to have wrongfully failed to
prevent or deter a wrong subsequently committed in the forum
by a former employee acting in his/her capacity as an employee
of a subsequent forum employer. According to the California
Court of Appeals, the “intentional conduct” requirement in
Calder includes not only affirmative acts expressly aimed at or
targeting the forum, but it also includes a non-resident’s failure
to prevent or hinder a third party from potentially committing a
future wrong in the forum.
The California Court of Appeals held that the
Archdiocese’s failure to prevent Widera’s employment by the
Diocese of Orange satisfied the “effects” test, because the
Archdiocese should have foreseen a repeat of Widera’s prior
sexual offense after becoming an employee of the Diocese of
Orange. The court also held that while not necessary to
establish personal jurisdiction over the Archdiocese, its failure |
to inform the Diocese of Orange about Widera’s 1973 criminal
conviction facilitated Widera’s employment by the Diocese of
Orange, and this omission also satisfied the Calder “effects”
test.' According to the Court of Appeals, any non-resident
former employer that fails to disclose all material information
regarding a former employee in the course of recommending
the former employee to a prospective employer in California,
knowing the former employee poses a distinct risk of harm to
' Under California common law, any employer that voluntarily provides a
prospective employer with information relating to its former employee must
make full and complete disclosure of all material information regarding the
former employee. See Randi W. v. Muroc Joint Unified Sch. Dist., 14 Cal.
App. 4" 1066, 1081-82, 929 P. 2d 582 (1997). Notably, there is a split of
authority on this issue. See “Former Employer’s or Supervisor’s Tort
Liability to Prospective Employer or Third Person for Misrepresentation or
Nondisclosure in Employment Reference,” 68 A.L.R. 5" 1 (2003).
4
ART READE
ane
California residents, is subject to specific personal jurisdiction
in California under the Calder “effects” test.
Petitioner respectfully submits that the Calder “effects”
test cannot be distorted to encompass this type of inaction by a
non-resident former employer; Due Process requires more than
the non-resident’s failure to take action to prevent possible
future harm from occurring in the forum, at least where, as here,
the potential harm is posed by a third party over whom a non-
resident no longer has any control. The Calder “effects” test, at
a minimum, requires some affirmative conduct by a non-
resident defendant that specifically targets the forum, where the
defendant can or should foresee potential harm to forum
residents arising from that affirmative conduct. A _ non-
resident’s failure to act to prevent a potential harm from
occurring in the forum by a third party cannot form the
predicate for the state’s exercise of specific personal jurisdiction
over the non-resident consistent with Due Process.
STATEMENT OF THE CASE
A. Factual Background.
In 1967, Sigfried Widera was canonically incardinated?
within the Milwaukee Archdiocese and received faculties to act
as a priest in Wisconsin. 112 Cal. App. 4 at 427.
Approximately six years later, Widera was criminally convicted
of sexual molestation of a minor and sentenced to probation.
Id. On June 29, 1976, another minor in Wisconsin claimed he
was sexually assaulted by Widera. Jd. at 428.
? Incardination is an ecclesiastical process whereby a priest is formally
assigned to a Bishop in a specific diocese or Archdiocese. 112 Cal. App. 4”
at 427, n. 1.
In August, 1976, Widera told the Milwaukee
Archdiocesan Personnel Board that he planned to visit his
brother in Costa Mesa, California. /d. at 429. In October, 1976,
after spending several months in Costa Mesa, Widera informed
the Board that he was considering asking for a leave of absence,
or working for a California parish. The Personnel Board
responded that the Milwaukee Archdiocese would be amenable
to Widera’s continuing to work within the Archdiocese after his
obtaining significant psychiatric counseling, or it would
consider releasing Widera to the services of another diocese if
that could be arranged, and Widera agreed to continue
counseling. The Board noted that the latter course would
require permission from the Archbishop of Milwaukee, as well
as the Bishop of the diocese selected by Widera. Widera
responded that “The choice of being released to the service of
another diocese has its merits.” Jd. at 430.
On December 3, 1976 the Archbishop of Milwaukee
informed the Archdiocesan Personnel Board that Widera
wished to work temporarily for the Diocese of Orange and that
he would be continuing psychotherapy in California. The
Archbishop informed the Board that he planned to contact
Bishop William Johnson of the Diocese of Orange to see if
there might be something available for Widera. Jd.
In a letter dated December 20, 1976 the Archbishop of
Milwaukee wrote to Bishop Johnson and Father Michael
Driscoll, the secretary/chancellor of the Diocese of Orange:
> As dictated by the hierarchal structure of the Roman Catholic Church, the
religious authority of the Milwaukee Archdiocese is limited to Wisconsin; if
Widera wished to work as a Roman Catholic priest elsewhere, he would need
authorization from the Archbishop of Milwaukee, as well as the Bishop of the
selected diocese. /d. at 430.
ne a
A few days ago I talked by phone to
Bishop Johnson about a_ possible
pastoral assignment for Father Sigfried
Widera of this Archdiocese. The
conversation was very general and the
Bishop suggested that perhaps
something could be done on a
temporary basis. My reason for
approaching Bishop Johnson is
founded in the fact that Father
Widera’s brother and family live in
Costa Mesa, California....
Father Widera was ordained in 1967
and has done good work for the
Diocese in the places to which he was
assigned. In his earlier years there was
a moral probleni having to do with a
boy in school. This seemed adequately
confronted through treatment and an
intense desire upon Fathez’s part to
avoid any repetition of a previous
offense.
More recently, however, there has
been a repetition, and according to our-
State Law further psychiatric treatment
is mandated with the _ strong
recommendation that no immediate
assignment be made in the environs
of the Archdiocese.
Father Widera has cooperated in every
way and is presently under treatment.
His doctor is somewhat in favor of his
leaving the scene but expects that there
7
will be continuing treatment. This has
already been arranged and a doctor in
California will take over at this point.
From all the professional information I
can gather there would seem to be no
great risk in allowing this man to
return to pastoral work, but there are
legal complications at present writing:
Incidentally, these legal technicalities
would permit Father’s going to ancther
State as long as treatment is continued.
There is no thought of incardination
involved, and I’m quite willing to
accept the man back into the
Archdiocese whenever circumstances
would indicate. Though I anticipate no
recurrence of this past aberration, I
would certainly want to be informed if
- the slightest suspicion were to develop.
I would like to show fraternal charity
to a fellow priest, but I cannot be
virtuous at the expense of a fellow
Bishop.
Id. at 430-31.
On January 10, 1977 Widera was appointed by the
Diocese of Orange as an Associate Pastor “in hospitality” at St.
Pius V Parish in Buena Park, California. Jd. at 431. Father
Driscoll wrote to the Archbishop of Milwaukee confirming the
appointment. In response, the Archbishop wrote to Bishop
Johnson informing him that Widera would remain a member of
the Milwaukee Archdiocese:
Permit me to express my _ sincere
thanks to you and those involved for
this consideration of a priest who has
done good wok and whose absence
from the Diocese is predicated upon
the local situation discussed in earlier
letters.
I fully expect that upon the
recommendation of those
professionally helping him at the
present time he will be reassigned in
our Archdiocese. .
Id.
Beginning in January, 1977, with Widera’s appointment
as Associate Pastor at St. Pius V Parish in Buena Park, the
Diocese of Orange began paying Widera’s salary and provided
for his temporal needs. After this date, Widera acted on behalf
of the Diocese of Orange, which had complete control over his
assignments and supervision; although Widera continued to be
incardinated with the Milwaukee Archdiocese until 1981, upon
receiving his assignment in California from the Diocese of
Orange, all responsibilities to and for Widera were placed upon
the Diocese of Orange as if Widera were incardinated there.
(PA 00952 at 35:20-25, 36:1).*
While the Diocese of Orange assumed all
responsibilities for Widera in the period 1977 through 1981,
“ As explained by the Bishop of the Diocese of Orange, it is not unusual that
a priest will remain incardinated in one diocese even when working in
another diocese and that it is customary for a priest to ave worked “at least
three years” and “received two assignments before [the new diocese]
consider(s) incardinating the priest.” (PA 00933 at 67:1-13).
9
because Widera remained incardinated by the Milwaukee
Archdiocese, as a matter of Canon Law, he was still subject to
the authority of the Archbishop of Milwaukee. The Archbishop
had the authority to recall Widera to Wisconsin, to remove his
faculties as a priest, to investigate whether he had committed
acts of molestation, and to petition the Pope to laicize him. 112
Cal. App. 4" at 432.
Widera worked at St. Justin Martyr Parish in Anaheim,
California from April, 1997 to July, 1981. Widera was then
transferred to St. Edward’s Parish in Dana Point, California
because the policy of the Diocese of Orange was to rotate
associate pastors every four years. Jd.
In October, 1981 Widera sought incardination into the
Orange Diocese. Under Canon Law, a diocesan priest cannot
be incardinated in two dioceses at the same time. The proper
canonical process was to excardinate Widera from the
Milwaukee Archdiocese and to incardinate him into the Orange
Diocese. Once a diocesan priest becomes incardinated in a new
diocese, his relationships, obligations, and connections with the
former diocese are terminated. Jd. At such time, the former
diocese no longer has any authority over the priest, and has no
right to restrict or terminate his activities as a priest. (PA
00966).
Widera was excardinated from the Milwaukee
Archdiocese and incardinated in the Orange Diocese on
November 23, 1981. As of this date, Widera was removed from
the Milwaukee Archdiocesan priest fund, personnel role,
pension plan, priest senate, and payroll; as of this date, there
was no longer any legal relationship between Widera and the
Milwaukee Archdiocese. 112 Cal. App. 4" at 432.
After incardination in the Orange Diocese, Widera
worked at several parishes until he was assigned to St. Martin
10
de Porres in Yorba Linda, California in July, 1985. Real party-
in-interest, Eric Paino, attended St. Martin de Porres. The
incident giving rise to the underlying litigation is Paino’s claim
that shortly after Widera came to St. Martin de Porres, he began
molesting Paino. /d. at 433.
B. Underlying General Jurisdictional Facts.
The Milwaukee Archdiocese is a religious corporation
organized under Wisconsin’s law and is located in Milwaukee,
Wisconsin. (PA 00003 at 93). It is a separate, distinct
corporate entity from the Diocese of Orange which is
incorporated in California. (/d., 42). Both entities keep
separate books, and only the Diocese of Orange has a presence
in California. Jd.
The Milwaukee Archdiocese is presided over by a
different Bishop or Archbishop than the Diocese of Orange.
The Archbishop of Milwaukee exercises no control or influence
over any activities in the Diocese of Orange. (PA 00062, {[§/2-
3). The Milwaukee Archdiocese owns no real or personal
property in California, pays no California taxes, holds no
California bank accounts, maintains no California offices, has
no California telephone listings or mailing addresses, and has
no registered agent for the service of process in California. Jd.
It also has not signed any contracts in California, nor has it
performed any religious services, sold any goods, or derived
any substantial revenue from goods used or consumed in
California. Jd. The Milwaukee Archdiocese conducts no
business in California. Jd.
C. Proceedings Below.
In April, 2002, Paino filed a complaint against the
Orange Diocese, the Milwaukee Archdiocese, and Widera,
asserting eleven causes of action based upon alleged acts of
11
sexual abuse by Widera occurring in California in 1985. Paino
alleged that:
Even though the Defendants Dioceses
knew and should have known that
Father Widera had molested and
sexually abused minors, and even
though the Defendants Dioceses had
actual and constructive knowledge of
the molestations and sexual abuses, the
Defendants Dioceses covered up the
molestations and abuses by Father
Widera, continued to allow Father
Widera to act as a Catholic priest
within the Defendants Dioceses,
continued to hold Father Widera out as
a Catholic priest who could be trusted
with minor parishioners and minor
students, continued to allow Father
Widera to work with minor
parishioners and minor students on a
daily basis, and continued to move
Father Widera around to different
Catholic churches’ within the
Defendants Dioceses.
114 Cal. App. 4" at 433.°
* The essence of the cause of action asserted against the Milwaukee
Archdiocese and the Diocese of Orange is that each wrongfully failed to
terminate Widera because he was unfit to be a priest. Courts are divided on
the issue of whether the Free Exercise Clause permits a civil tort action
against a religious institution for failing to terminate or adequately supervise
a member of its clergy. See “Liability of Church or Religious Organization
for Negligent Hiring, Retention, or Supervision of Priest, Minister or Other
Clergy Based on Sexual Misconduct,” 101 A.L.R. 5" (2003). The Supreme
Court of Wisconsin has held that there is no such tort liability under the First
12
The Milwaukee Archdiocese moved to quash the action
for lack of personal jurisdiction; the trial court denied the
Archdiocese’s motion. The Archdiocese then filed a Petition
For Writ of Mandate challenging the trial court’s order. Jd. In
a Decision dated October 1, 2003, the California Court of
Appeals affirmed the trial court’s decision, holding that while
California did not have “general jurisdiction” over the
Milwaukee Archdiocese, i.e., the Archdiocese had no
“substantial ... continuous and systematic contact with
California,” it did have “specific jurisdiction” because: (1) the
Milwaukee Archdiocese had “purposefully availed itself of
forum benefits with respect to the matter in controversy,” (2)
the controversy was “related to or arose out of the Archdiocese
contacts with the forum,” and (3) the exercise of jurisdiction
“comported with fair play and substantial justice.” Jd. at 435-
36, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472,
476 (1985). -
The Court then held that under Calder v. Jones, 465
U.S. 783 (1984) and Asahi Metal Industry Co. v. Superior
Court, 480 U.S. 102 (1987), the “purposeful availment”
standard is met where a non-resident defendant purposefully
directs or aims its actions toward the forum state, knowing that
its conduct could potentially cause harm to forum residents.
The Court found the “effects” test satisfied here:
Amendment. See Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302,
533 N.W.2d 780 (1995). The California appellate courts have not resolved
this issue. See Richelle L. v. Roman Catholic Archbishop of San Francisco,
106 Cal. App. 4" 257, 130 Cal. Rptr. 2d 601 (2003). Because this issue is a
“merits” issue and not a jurisdictional one, it is not ripe for determination by
this Court. See Calder v. Jones, 465 U.S. 783, 790 (1984).
13
The evidence supports the conclusion
the Milwaukee Archdiocese
intentionally sent Widera to California
to get him out of Wisconsin where he
had been convicted of sexual
perversion. . .and could create further
problems for the Milwaukee
Archdiocese. . .[T]he Milwaukee
Archdiocese knew Widera was a
pedophile and posed a serious threat of
sexually abusing boys in California ....
Having sent Widera into California
knowing he was a convicted child
abuser and a pedophile, the Milwaukee
Archdiocese reasonably could expect
to be haled into court in California to
answer for the consequences of its
actions.
Once Widera was in California, the
Milwaukee Archdiocese never recalled
him, although it had the power to do
so, never questioned him, never
monitored his treatment, and never
conducted an_ investigation to
determine whether he continued to
molest boys. The Milwaukee
Archdiocese allowed Widera to be
excardinated so he could' be
incardinated in the Orange Diocese.
Id, at 438-39.
Although the court found that the Milwaukee
Archdiocese’s religious authority to prevent Widera’s 1981
employment by the Diocese of Orange was sufficient to satisfy
14
the “effects” test,° the court also concluded that jurisdiction
could be predicated on the Archdiocese’s failure to disclose
Widera’s 1973 criminal conviction to the Diocese of Orange:
“Is it relevant to the “effects” test
whether or not the Milwaukee
Archdiocese disclosed Widera’s prior
misconduct to the Diocese of Orange?
No. The Milwaukee Archdiocese rid
itself of Widera by sending him into
California, knowing he was a
pedophile and had been convicted of
perversion with a boy. The Milwaukee
Archdiocese’s conduct was intentional
and was expressly aimed at California.
The Milwaukee Archdiocese knew its
intentional conduct would cause harm
in California. Thus, the Milwaukee
Archdiocese’s conduct satisfied the
“effects” test, regardless of whether it
gave Orange Diocese “fair warning” of
Widera’s prior misconduct.
Even if considered, [the Milwaukee
Archdiocese letter] ... supports the
conclusion the Milwaukee
Archdiocese engaged in express
aiming at or targeting California. The
° While the court stated that the Archdiocese “sent” Widera to California in
1976 (which is manifestly untrue, see pages 16-17 infra.), and permitted him
to work as a temporary or “loaned” employee with the Diocese of Orange in
the period 1977-1981, none of these “facts” is jurisdictionally relevant
because the wrong at issue here, the alleged 1985 molestation of plaintiff by
Widera, occurred four years after Widera became employed (incardinated) by
the Diocese of Orange. Whatever the Milwaukee Archdiocese did or did not
do before 1981 is jurisdictionally irrelevant.
15
letter appears to be intentionally vague
and incomplete; it does not describe
what is meant by ‘a moral problem,’
does not disclose when the ‘moral
problem’ occurred, does not identify
the repetition, and, most importantly,
does not disclose Widera’s criminal
conviction for sexual perversion.
112 Cal. App. 4" at 439-440.
REASONS FOR GRANTING THE PETITION
I. CALIFORNIA’S EXERCISE OF PERSONAL
JURISDICTION VIOLATES RIGHTS AFFORDED
RELIGIOUS INSTITUTIONS BY THE FREE
EXERCISE CLAUSE OF THE ~ FIRST
AMENDMENT.
If the Milwaukee Archdiocese had actually sent Widera
to California in 1976, and if Widera had committed the alleged
offense against plaintiff while still an employee of the
Milwaukee Archdiocese, California’s exercise of jurisdiction
over the Milwaukee Archdiocese likely would pose no
constitutional issue. But that is not what occurred here. First,
the Milwaukee Archdiocese did not “send” Widera to
California. The lengthy correspondence quoted by the
California Court of Appeals, pages 7-9 supra, discloses that
Widera first had the idea of moving the California and seeking
temporary association with a California diocese, that Widera
was free to seek a “temporary assignment” anywhere in the
United States with the approval of the Milwaukee Archdiocese,
that Widera chose California because he had family there, that
Widera sought permanent employment with the Diocese of
Orange, and that the Milwaukee Archdiocese had no legal or
16
eee
ecclesiastical power to require the Diocese of Orange, or any
other diocese, to employ Widera in any capacity.
Second, even if the Milwaukee Archdiocese had “sent”
Widera to California in 1976, thereby arguably subjecting the
Archdiocese to California’s exercise of personal jurisdiction for
any wrong committed by Widera while still employed by the
Milwaukee Archdiocese, i.e., as a “loaned” employee with the
Diocese of Orange,’ that employment undisputedly ended in
November, 1981 when. the Milwaukee Archdiocese
excardinated Widera and the Diocese of Orange incardinated
him. Because the alleged offense giving rise to the cause of
action at issue in this case occurred in 1985, California’s
exercise of jurisdiction over the Milwaukee Archdiocese is
necessarily predicated upon the Archdiocese’s “complicity” in
permitting Widera to become a permanent employee of the
Diocese of Orange, thereby allegedly exposing California
juveniles to an increased risk of harm from Widera while acting
as a priest permanently employed by the Orange Diocese. It is
this alleged wrongful failure to prevent Widera’s employment
by the Diocese of Orange that collides with the First
Amendment’s Free Exercise Clause.
It is undisputed that when Widera sought permanent
employment with the Diocese of Orange, the Milwaukee
Archdiocese had no legal right to foreclose that employment,
and that after Widera became an employee of the Diocese of
Orange in 1981, the Milwaukee Archdiocese no longer had any
legal relationship to Widera—it had no right to supervise or
discipline Widera, nor did it have any right to restrict or
terminate his activities as a priest. None of this mattered to the
” The California Court of Appeals analogized Widera’s status to that of a
“loaned employee” in the years 1977-1981, when only the Diocese of Orange
was directing Widera’s employment and supervising him while Widera
continued to be incardinated in Wisconsin. 114 Cal. App. 4" at 438.
17
California Court of Appeals, however, because under Roman
Catholic religious doctrine, i.e., Canon Law, the Diocese of
Orange would not employ Widera absent his being excardinated
from the Milwaukee Archdiocese. Accordingly, although the
Milwaukee Archdiocese had no legal nght to prevent that
employment, its religious authority to do so was sufficient to
permit California to exercise jurisdiction over the Archdiocese.
Can the state of California exercise specific personal
jurisdiction over a religious institution or organization because,
as a matter of religious doctrine, as opposed to civil legal
authority, it can prevent an allegedly unfit member of its clergy
from becoming employed by a separate and distinct religious
organization incorporated in the forum state? Petitioner
respectfully submits that the First Amendment precludes the
exercise of personal jurisdiction in such a case. The
Archdiocese’s exercise of its religious authority, i.e., its
excardination of Widera, in 1981, cannot justify California’s
exercise of specific personal jurisdiction. ®
Thomas Jefferson wrote in 1808 that the government is
interdicted by the Constitution from intermeddling with
religious institutions, their doctrines, disciplines or exercises.
James T. O’Reilly & Joan M. Strasser, Clergy Sexual
Misconduct: Confronting The Difficult Constitutional And
Institutional Liability Issues, 7 St. Thomas L. Rev: 31, 44
(1994). Sixty-three years later, this Court in Watson v. Jones,
80 U.S. 879 (1871), found that civil courts have no jurisdiction
when the matter in dispute is “ecclesiastical in character’, or
where the matter concerns “theological controversy, church
discipline, or ecclesiastical government.” Jd. at 733.
* Although. the Milwaukee Archdiocese argued that its religious authority
over Widera could not provide California with a basis for the exercise of
jurisdiction consistent with the First Amendment, the Court of Appeals
ignored this issue.
18
Subsequently, the Court held that it is the function of
church authorities, not civil courts, to assess the qualifications
of clergy and act upon such an assessment. Gonzalez v. Roman
Catholic Archbishop of Manila, 280 U.S. 1 (1929). More
recently, the Court held that decisions based upon religious
doctrine and policy, such as the selection and utilization of
clergy “have federal constitution protection as part of the free
_ exercise of religion against state interference.” Kedroff v. St.
Nicholas Cathedral of Russian O. Church, 344 U.S. 94, 116
(1952).
The Court also discussed church autonomy in Serbian
Eastern Orthodox Diocese of America and Canada vy.
Mitivojevich, 426 U.S. 696 (1976), finding that a Bishop could
not seek redress in a civil court to challenge his defrockment
because the First Amendment precludes civil courts from
delving into the interpretation of church governance in order to
decide legal issues. Jd. at 708-709. Specifically, the Court
found that when resolution of a dispute requires extensive
inquiry by a civil court into religion and polity, the First and
Fourteenth Amendments mandate that civil courts cannot
disturb the decisions of an ecclesiastical tribunal, but must
accept such decisions as binding. Jd. at 709; see also
Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that it would
be unconstitutional for the state of Wisconsin, as parens
patriae, to compel mandatory education of Amish children
because it would require a threshold inquiry by the court into a
deeply rooted religious belief).
Reliance upon Canon Law, or religious doctrine, to
support a finding of specific personal jurisdiction raises the
same kinds of First Amendment problems, involving the court’s
application of religious doctrine rather than principles of civil
law, to sustain jurisdiction over a non-resident religious
institution. The ability of one religious organization to prevent
a member of its clergy from assuming employment with a
19
separate and distinct religious organization located in the forum
cannot provide the basis for the exercise of specific personal
jurisdiction where that ability derives from the former’s
religious authority or control rather than its legal
authority/control. Because the Milwaukee Archdiocese had no
such legal authority or control over Widera’s employment by
the Diocese of Orange, and because it had no control
whatsoever over Widera at the time of his alleged wrongdoing,
California cannot constitutionally base its exercise of
jurisdiction on the Archdiocese’s 1981 excardination of Widera
in order to permit his incardination by the Diocese of Orage.
California may not, consistent with the First Amendment, hale
the Archdiocese into California’s courts to answer for a wrong
committed by its former priest four years later, while employed,
supervised, and controlled by the Diocese of Orange.
Il. | CALIFORNIA’S EXERCISE OF SPECIFIC
PERSONAL JURISDICTION OVER THE
MILWAUKEE ARCHDIOCESE CANNOT BE
RECONCILED WITH THE REQUIREMENTS OF
DUE PROCESS. ;
A. A Non-Resident Defendant Employer is not
Subject to Personal Jurisdiction Under the
Calder “Effects” Test Where it Allegedly
Fails to Take Appropriate Steps to Prevent a
Potential Future Tort in the Forum by a
Former Employee Over Whom __ the
Defendant Has No Control.
Assuming, arguendo, that in order to establish specific
personal jurisdiction, a state may, consistent with the First
Amendment, rely upon a non-resident religious institution’s
religious authority to prevent a member of its clergy from
becoming employed by a separate and distinct religious
20
institution within the forum, does this ability permit the state to
exercise jurisdiction over the non-resident former employer
under the Due Process Clause of the Fourteenth Amendment?
The California Court of Appeals said yes—that a non-resident
employer of a individual allegedly unfit for employment by a
subsequent forum employer can be subjected to personal
jurisdiction in the forum where its failure to prever* or hinder
the subsequent employment creates a foreseeable risk of future
harm to forum residents, perpetrated by the former employee
acting in his capacity as an employee of the subsequent forum
employer. The Court of Appeals held that it was
jurisdictionally irrelevant that the non-resident former employer
has no control or tie to the former employee when he/she
commits a wrong in the forum while an employee of the
subsequent forum employer.
: Petitioner respectfully submits that neither Calder nor
any other decision of this Court permits jurisdiction to attach in
such a case; Due Process does not permit a state to exercise
jurisdiction simply because a non-resident allegedly fails to
prevent possible future harm in the forum caused by a third
party over whom the non-resident no longer has any control or
other legal relationship.
In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-
72, 474-78 (1985), the Court reviewed the requirements for a
state’s exercise of specific personal jurisdiction over a non-
resident defendant:
“The Due Process clause protects and
individual’s liberty interest in not
being subject to the binding judgments
of a forum with which he has
established no meaningful ‘contacts,
ties, or relations.’ ....by requiring that
individuals have ‘fair warning that a
21
particular activity may subject them to
the jurisdiction of a foreign sovereign’.
Where a forum seeks to assert specific
jurisdiction over an_ out-of-state
defendant who has not consented to
suit there, this ‘fair warning’
requirement is_ Satisfied if the
defendant has ‘purposefully directed’
his activities at residents of the
forum...and the litigation results from
alleged injuries that ‘arise out of or
relate to’ those activities.... (citations
omitted)...
[T]he constitutional touchstone
remains whether the defendant
purposefully established ‘minimum
contacts’ in the forum state.... [T]he
Court has consistently held that ...
foreseeability [of causing injury] is not
a ‘sufficient benchmark’ for exercising
personal jurisdiction.... - Instead, ‘the
foreseeability that is critical to due
process analysis is that the defendant's
conduct and connection with the forum
State are such that he should
reasonably anticipate being haled into
Court there.’ (Citations omitted)....
This ‘purposeful availment’
requirement ensures that a defendant
will not be haled into a jurisdiction
solely as the result of ‘random,’
‘fortuitous,’ or ‘attenuated’ contacts ...
22
or the ‘unilateral’ activity of another
party or a third person ....
Once it has been decided that a
defendant purposefully established
minimum contacts within the forum
State, these contacts may be
considered in light of other factors to
determine whether the assertion of
personal jurisdiction would comport
with ‘fair play and _ substantial
justice.'.... [Mjinimum requirements
inherent in the concept of ‘fair play and
substantial justice’ may defeat tie
reasonableness of jurisdiction even if
the defendant has _ purposefully
engaged in forum activities."
In Calder, supra, the Court applied these principles of
Due Process to a case involving a professional entertainer
residing in California who brought an action in California
Superior Court claiming that she had been libeled in an article
written and edited by defendants residing in Florida, and
published by the National Enquirer, a national magazine having
its largest circulation in California. This Court held that where
a non-resident defendant is the "primary participant" in alleged
wrongdoing intentionaliy directed at a California resident,
specific jurisdiction over ihe non-resident is appropriate. The
Court emphasized that the non-iesident defendants in Ca/der
were the primary participants in a wrong actively committed
upon a California resident; they were not, as defendants argued,
individuals who had no control over the wrong committed
simply because the National Enquirer published the article in
California, nor could they claim that they did not benefit
economically from the wrong they committed.
23
Nothing could be further from the case here. The
Milwaukee Archdiocese, like any other former employer
providing references or background information regarding a
former employee to a prospective employer, derives no
financial benefit from providing the information,’ nor is the
former employer an active wrongdoer simply because it
allegedly omits to supply all material information to the
prospective employer in the forum. Most importantly, the
former employer has no control over the possible commission
of future wrongs by the former employee. The primary
participant, indeed the only participant, in the subsequent
wrongdoing is the former employee, who is under the
supervision and control of the subsequent forum employer.
Additionally, the failure to prevent or hinder the
commission of a future tort by a former employee does not
constitute the "targeting" of forum residents required by the
Calder "effects" test. In Asahi Metal Industry Co. v. Superior
Court, 480 US 102 (1987), this Court held that California could
not exercise personal jurisdiction over a foreign valve
manufacturer who sold valves to an independent third party
even when it knew the product would be incorporated into tire
tubes sold in California. The Court held that the non-resident
defendant’s awareness that some of the valves would end up in
California was not, in and of itself, enough to show that the
defendant purposefully availed itself of the California market.
The Court held that the defendant did not specifically "target"
California, and thus the exercise of personal jurisdiction by the
Superior Court of California exceeded the limits of due process.
Asahi, 480 US at 113.
* Whatever benefit is derived by the former employee in the forum cannot be
imputed to the non-resident former employer. See e.g. Kulko v. Superior
Court, 436 US 84 (1978), and Calder, 465 US at 790.
24
Here, while the Milwaukee Archdiocese knew that
Widera was seeking permanent employment with the Diocese
of Orange, and that Widera might pose a risk of harm to
California juveniles in his capacity as a priest associated with
the Diocese of Orange, such knowledge no more constitutes the
"targeting" of forum residents than the conduct of the defendant
in Asahi. It is undisputed that Widera chose to seek
employment with the Diocese of Orange, and that the
Milwaukee Archdiocese did not direct Widera to travel to
California nor did it direct Widera to seek employment w:th the
Diocese of Orange. Moreover it is undisputed that the
Milwaukee Archdiocese had no conceivable reason to
encourage Widera to seek employment in California, as
opposed to the remaining 48 states. The Archdiocese, like any
other employer willing to provide references to a soon to be
former employee, would have provided the same information to
any other diocese inclined to hire Widera. Widera’s selection
of California was a unilateral one by a third party which was
“random,” “fortuitous” and “attenuated” so far as_ the
Archdiocese was concerned. This Court has held that these
factors preclude the exercise of jurisdiction over a non-resident.
See Kulko v. Superior Court, 436 U.S. 8&4, 93 (1978);
Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408,
417 (1984); World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 296 (1980); Burger King, supra, 471 U.S. at 475.
Indeed, if the California Court of Appeals correctly
applied the Calder “effects" test in this case, then any non-
resident employer of an employee who might be deemed to be
unfit in some way, or to pose some increased risk harm to
others, would be subject to personal jurisdiction in any state
where the employee later unilaterally chooses to become
employed if the non-resident employer facilitates that
subsequent employment in any way, such as by failing to make
full and complete disclosure of all material information
pertaining to the employee in any reference provided to a
25
prospective employer. Such non-disclosure would always
constitute a “targeting” of the forum sufficient to allow a state
to exercise specific personal jurisdiction over the non-resident
former employer, despite the fact that the former employee
unilaterally chose the state in which he/she desired to work in a
given employment.
Petitioner submits that personal jurisdiction over non-
resident employers cannot, consistent with Due Process, be
predicated upon inadequate disclosures or other failures to take
steps to prevent or hinder the possibility of a future tort in a
given forum committed by prior employees or agents over
whom the non-resident has no further controi. As the District
Court in Moran v. Metropolitan District Council of
Philadelphia and Vicinity, 640 F. Supp. 430, 434 (E.D. Pa.
1986) appropriately observed: “Omissions can cause tortious
harm just as affirmative acts can, but a failure to act presents a
less convincing case of purposefully availing oneself of the
privilege of conducting activity in the state than an affirmative
act with specific foreseeable harm” (holding that an alleged
failure to act to prevent tortious harm in the forum by a third
party insufficient to satisfy due process). Petitioner respectfully
submits that the California Court of Appeals misapplied the
Calder “effects” test.
B. The Exercise of Personal Jurisdiction by the
State of California Does Not Comport With
Fundamental Fairness or Substantial Justice.
Even if a non-resident employer's failure to take
appropriate action to attempt to hinder or prevent future
wrongdoing by a former employee in the forum is sufficient
under the Calder "effects" test, personal jurisdiction cannot be
exercised where it would deprive the non-resident defendant of
substantial justice, where the exercise of jurisdiction is
26
inconsistent with the notions of fair play. See e.g. Burger King
Corp., supra, 471 US at 477-78, 485-86.
The imposition of jurisdiction in this case means that
the State of California would have perpetual jurisdiction over
the Milwaukee Archdiocese, or any other non-resident
employer alleged to have unreasonably permitted or facilitated
its employee’s employment by a subsequent forum employer,
for any future misconduct by a former employee acting in his
capacity as an employee of the subsequent forum employer,
regardless of when that alleged misconduct might occur. This
exercise of jurisdiction would be permissible despite the fact
that the employer no longer exercises any supervision or control
over the former employee.'? Such “perpetual” jurisdiction over
a non-resident former employer, who is alleged to have failed to
prevent possible future wrongdoing by a former employee, after
it relinquishes all rights to supervise and control the actions of
that individual, offends traditional notions of fair play and
substantial justice.
CONCLUSION
For each of the foregoing reasons, the Milwaukee
Archdiocese respectfully asks the Court to grant this Petition for
Review.
'° For example, under the Court of Appeals holding, the Milwaukee
Archdiocese would be required to defend itself against any act of molestation
allegedly committed by Father Widera in California while acting as a priest
for the Diocese of Orange, even if that act occurred 10, 20 or 30 or more
years after the Archdiocese terminated any and all legal relationship with
Widera, and no longer had any authority to control, supervise or terminate
him.
27
Respectfully submitted this 13th day of April, 2004.
MATTHEW J. FLYNN,
Counsel of Record
O. THOMAS ARMSTRONG
DAVID P. MUTH
QUARLES & BRADY LLP
411 East Wisconsin Avenue
Suite 2040
Milwaukee, WI 53202-4497
Attorneys for Petitioner
Archdiocese of Milwaukee
QBMKE\5542035.3
APPENDIX
California Court of Appeal, 4" Circuit, Division 3 Al
Decision, Dated October 1, 2003, denying
Petitioner’s Request for Petition for Writ of
Mandamus
Supreme Court of California’s Order, dated January Bl
14, 2004, denying Petition for Review :
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
Court of Appeal, Fourth District, Division 3, California.
The ARCHDIOCESE OF MILWAUKEE, Petitioner,
V.
The SUPERIOR COURT of Orange County, Respondent,
Eric Nathan Paino, Real Party in Interest.
No. G031386.
Oct. 1, 2003.
Review Denied Jan. 14, 2004.
Background: Alleged victim of sexual molestation by priest
sued Milwaukee Archdiocese, which had transferred priest to
California. The Superior Court, Orange County, No.
02CC06293, Ronald L. Bauer, J. denied Archdiocese's
motion to quash service of summons for lack of personal
jurisdiction, and Archdiocese petitioned for writ of mandate.
Holdings: The Court of Appeal, Fybel, J., held that:
(1) conduct of Archdiocese in sending priest into California
met purposeful availment requirement for specific
jurisdiction under "effects" test;
(2) alleged victim's claims bore substantial connection to
Axrchdiocese's contacts with forum state; and
(3) exercise of jurisdiction over Archdiocese would
comport with fair play and substantial justice.
Petition denied.
FYBEL, J.
I.
INTRODUCTION
In Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 127
Cal.Rptr.2d 329, 58 P.3d 2 (Pavlovich ), the California
Al
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
Supreme Court **158 held an out-of-state defendant may be
subject to personal jurisdiction in California based upon
evidence establishing the defendant engaged in intentional
conduct expressly aimed at or targeting California and the
defendant knew the intentional conduct would cause harm in
this state. In this case, we apply this "effects" test, as
expressed in Pavlovich, and conclude the Roman Catholic
Archdiocese of Milwaukee (the Milwaukee Archdiocese) is
subject to specific personal jurisdiction in California.
Plaintiff Eric Nathan Paino alleged and declared under oath
“that when he was a boy, Fr. Siegfried Widera (Widera), a
Roman Catholic priest, molested him. Widera was working
at a parish in Orange County when the alleged molestation
occurred. Paino sued the Milwaukee Archdiocese, the
Roman Catholic Bishop of Orange (the Orange Diocese), and
Widera. Paino alleged the Milwaukee Archdiocese engaged
in a cover-up of Widera's prior misconduct, which included a
conviction in Wisconsin for sexual perversion against a boy,
and arranged for Widera to move to California in 1973.
The evidence showed the Milwaukee Archdiocese sought to
rid itself of Widera by sending him into California knowing
he was a pedophile and had been convicted in Wisconsin of
sexual perversion against a boy. Paino met his burden of
proving, for purposes of establishing specific personal
jurisdiction, the Milwaukee Archdiocese engaged in
intentional conduct expressly aimed at California and knew
its conduct would cause harm in this state. We therefore
deny the Milwaukee Archdiocese's petition for writ of
mandate challenging the order denying the Milwaukee
Archdiocese's motion to quash service of summons.
Our opinion resolves only the Milwaukee Archdivcese's writ
petition and reviews only jurisdictional facts. We do not
address the merit of any claims or defenses.
A2
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
*427 II.
ALLEGATIONS AND JURISDICTIONAL FACTS
A. Widera is Convicted of Child Molestation in Wisconsin.
Widera was ordained as a Roman Catholic priest in 1967
and was incardinated in the Milwaukee Archdiocese. [FN1]
He died in 2003.
FN1. Incardination is a formal state by which a
Roman Catholic priest is made subject to the
authority of a bishop. (See Stevens _v. Roman
Catholic Bishop of Fresno (1975) 49 Cal.App.3d
877, 885, 123 Cal.Rptr. 171.)
On July 2, 1973, a criminal complaint against Widera for
sexual perversion was filed in Wisconsin Circuit Court. The
complaint alleged: "Frank Siegfried Widera, [minor boy]
and [minor boy] went from Port Washington to Random
Lake on Sat. June 30 and in the course of traveling to
Random Lake on or near the iniersection of State Highway
57 and County Highway K in the Township of Fredonia,
Ozaukee County [minor boy] placed his mouth over the
pen{iJs of Frank Siegfried Widera." On August 13, 1973,
Widera pleaded guilty and was sentenced to three years'
probation.
At the time of arrest, Widera was a priest at St. Mary's
Parish in Port Washington, Wisconsin. On July 31, 1973, the
Romani Catholic Archbishop of Milwaukee, William Cousins
(Cousins), determined Widera had to be _ transferred
immediately from St. Mary's. Both Cousins and the
Milwaukee Archdiocesan Personnel Board _[FN2] knew
about the criminal conviction **159 and knew Widera was a
pedophile. An August 14, 1973 document on _ the
Archdiocesan Personnel Board's letterhead _ states:
"Communication from Archbishop William E. Cousins to J.
A3
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
Theisen, Exec. Sec. of Priests' Personnel Board [§ ] ... [{ ]
Father Widera was arrested for, as the Milwaukee Sentinel
stated it, sexual perversion with young boys. He appeared in
the Ozaukee County Court yesterday, August 13, 1973 and
was sentenced to three years probation. The Judge, who
imposed the sentence, also ordered that Father Widera may
not return to the Port Washington area. [{ ] Father Widera is
presently seeing Dr. Leo F. Graham twice a week." Fr. John
Theisen (Theisen), director of the Archdiocesan Personnel
Board, testified in deposition he knew as of 1973 that Widera
was a pedophile and had been criminally convicted of child
molestation.
FN2. The Archdiocesan Personnel Board's primary
purpose was to make recommendaticns to the
Archbishop for placing diocesan priests.
B. Other Incidents of Child Molestation by Widera in
Wisconsin
The Milwaukee Archdiocese also knew the child
molestation resulting in Widera's conviction was not an
isolated incident. Fr. Rolland Glass (Glass) *428 was the
pastor at St. Mary's Parish, where Widera had served from
1972 through 1973. On September 3, 1973, Fr. Paul Esser
had a conversation with Glass about Widera. ‘Esser's
memorandum of the interview stated: "[Widera] was a
‘loner.’ He had difficulty relating with adults. He had instant
rapport with young boys and spent a lot of time with them. [4]
] ... [J ] 7. A male grade school teacher saw Fr. Widera
fooling around with the boys of another teacher. He said to
father that if he fooled around in the same way with his
students, he would punch Father in the face. [§ ] 8. Fr. Glass
had reports for some time from within and without the parish
that something was wrong. [J ] 9. He coached the boys in
basketball. He would be in the shower with the boys--all in
A4
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
the nude. When an adult male entered the shower, Fr.
[Widera] covered himself with a towel. [] ] 10. Fr. [Widera]
took boys swimming at a motel in Milwaukee. Father knew
the owner and could use the pool. This happened over a
period of time. [§] ] 11. Parishioners came forward after the
fact and indicated incidents they had noticed and warnings
they had given their own children about not letting Father
touch them. [9 ] Fr. Glass' mother told Glass that Fr.
{Widera] on at least one occasion had a boy sleep with him
overnight in the rectory. [§ ] 13. Fr. Glass did confront Fr.
[Widera]: ‘Circumstances are forcing me to draw certain
conclusions about you and your conduct with little boys.' Fr.
[Widera] stopped seeing boys for a time but then went back
to it. [| ] 14. There was a pattern of contact with small
belys]."
In early September of 1973, Widera was assigned to "help[ ]
out" at St. Andrew's Parish in Delavan, Wisconsin. Widera
was allowed to work with children. In February 1974, the
vice-president of the St. Andrew's school board wrote to
Theisen, "I'm writing to tell you how pleased we are to have
Fr. Sig Widera here in St. Andrew's Parish. He has endeared
himself to all who have had contact with him. [§ ] The
children in our school literally follow him around; he is so
kind and shows so much interest in them." Several St.
Andrew's parishioners wrote to the Archdiocesan Personnel
Board praising Widera's abilities with children. Although
Theisen responded to each of these letters, he did not
disclose Widera's conviction or other reports of possible
child molestation.
On June 29, 1976, Cousins contacted the archdiocese's
ombudsman [FN3] to infonn him **160 another allegation
had been made against Widera. The ombudsman's notes had
this entry for June 29: "Archbishop calied--Mike Short, a
therapist in Elkhorn, had called in to Bob Sampon--Short is a
AS
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
counselor and now advocate for [redacted text]. She
repoited to Short that her son had been sexually molested by
Fr. Widera while on a weekend fishing outing--Son is
[redacted name] age 13, an altar boy at Parish. Archbishop
suggested I call Widera first, then Short, assuring
complainants that W. will be removed from *429 parish and
-will receive in-patient treatment, if necessary." The
ombudsman's notes for July had this entry: "Widera
admitted that he made ‘a slip'. He took boy fishing alone
about 3 weeks ago. He had heard nothing about the
incident." The ombudsman told Widera he would "try to
keep the lid on the thing, so no police record weuld be
made," but Widera probably would be transferred ana would
need inpatient treatment.
FN3. The ombudsman assisted and _ represented
priests vis-a-vis the bishop and other church officials
in addressing problems and concerns, such as
allegations of sexual abuse.
The ombudsman then contacted Widera's therapist, Mike
Short. Short stated he would contact the boy's mother and
"convince her not to act with police, if Church remeves W.
from parish, and gets him help, as weli as counsels the boy."
On July 8, 1976, the ombudsman told Widera “anticipate
moving from Delavan after [your] probation.is over [§ ] not
to tell Fr. Henke [the pastor of St. Andrew's] at this time [§ ]
stay away from [redacted name] [{] ] also stay away from
another boy [you are] seen with frequently." Widera could
not be transferred until after Labor Day because of
"replacement problems."
On August 20, 1976, Fr. Henke (Henke) reported allegations
made againsi Widera to the Archdiocesan Persomiel Board.
Notes from the Archdiocesan Personnel Board stated,
"8/20/76--telephone--E. Henke--informed that S. Widera has
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112 Cal.App.4th 423, 5 Cal.Rpur.3d 154
had an incident with an 11 year old boy a couple of months
ago. Henke is concerned ‘iat the talk may become vicicus
against him in such a small town because news travels fast."
It is not clear whether the allegations reported by Henke
were the same as those reported to the ombudsman by Short.
Henke wanted Widera removed.
©. Widera Goes "On Vacation" to California and Takes
Faculties in the Orange Diocese.
On August 20, 1976, the ombudsman spoke with Henke and
Widera. The ombudsman wrete in his notes: "Called Henk<
and Widera--they agreed that W. would go ‘on vacation'
(California!) as soon as Waldbauer [_[FN4]] would find
supply help. Then [Widera] would be transferred. W.
should tell people only that he's going on vacation." Widera
told the Archdiocesan Personnel Board he "plans to leave St.
Andrew Parish, Delavan, on Monday, Aug. 23; he plans to
go to his brother's place" in Costa Mesa, California. On
August 23, the ombudsman told Cousins of these
"developments." Widera soon left for California.
FN4. Fr. John Waldbauer (Waldbauer) was the
executive secretary of the Archdiocesan Personnel
Board.
On August 27, 1976, the ombudsman wrote in his notes:
"Approached Esser about above--the Personnel Board has
heard nothing from anyone--*430 Archbishop has not spoken
to Personnel Board about this matter [§ ] ... [9] ] Paul [Esser]
would have a problem in conscience to re-assign Siegfried--
When? and should they really--in view of Widera's record? ?
Y ed
**161 In October 1976, Widera contacted the Archdiocesan
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
Personnel Board and asked what positions would be open if
he returned to Wisconsin. Widera considered asking for a
leave of absence or for work in a California parish.
On October 29, 1976, Waldbauer sent Widera a letter
stating: "This letter is written to you to follow our telephone
conversation Wednesday morning. This relates to the
recommendation of the Personnel Board at its meeting of
October 26th. After I spoke with you, I called the
Archbishop, who is aware of this direction and supports its
intent. [| ] The Personnel Board recommends a choice.
First, that you pursue significant counseling to assist you in
coming in touch with yourself about the action that has
brought about a hasty exit from your last two assignments....
Subsequent to such therapy, you would be considered for an
appoiniment within the Archdiocese. The alternative would
be for you to be released to the services of another diocese;
with the permission of the Archbishop, you would request to
minister elsewhere. Should you select the second alternative,
the Board would ask periodic reports about your status."
In response, Widera wrote, "the choice of being released to
the service of another diocese has its merits." Widera
announced he would travel to Milwaukee in November to
personally discuss the situation. Widera also wrote: "As to
my present situation, I was in contact with Dr. Graham and
[the ombudsman] before I left Wisconsin. It was on advice
that I left the area. But think that it is time for me to return."
On December 3, 1976, Cousins :.:formed the Archdiocesan
Personnel Board that "S. Widera--wiil spend some time with
his parents in Florida and then go to California to continue
psychotherapy" and that Cousins "plans to contact Bishop
Johnson of Orange to see if there might be something
available for Widera." Cousins's authorization was necessary
for Widera to work as a priest cutside of the Milwaukee
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
Archdiocese. On December 17, 1976, Cousins informed the
board he had "called Bishop Johnson in Orange about
possibility for S. Widera."
In a letter dated December 20, 1976, Cousins wrote to
Bishop William Johnson (Johnson) and _ the
secretary/chancellor of the Diocese of Orange, Fr. Michael
Driscoll (Driscoll). Cousins wrote: "A few days ago I talked
by phone to Bishop Johnson about a possible pastoral
assignment for Father Siegfried Widera of this Archdiocese.
The conversation was very general and the Bishop suggested
that perhaps something could be done on a temporary *431
basis. My reason for approaching Bishop Johnson is founded
in the fact that Father Widera's brother and family live in
Costa Mesa, California.... [§ ] ... [| ] Father Widera was
ordained in 1967 and has done good work for the Diocese in
the places to which he was assigned. In his earlier years
there was a moral problem having to do with a boy in school.
This seemed adequately confronted through treatment and an
intense desire upon Father's part to avoid any repetition of a
previous offense. [| ] More recently, however, there has
been a repetition, and according to our State Laws further
psychiatric treatment is mandated with the strong
recommendation that no immediate assignment be made in
the environs of the Archdiocese. [| ] Father Widera has
cooperated in every way and is presently under treatment.
His doctor is somewhat in favor of his leaving the scene but
expects that there will be continuing treatment. This has
already been arranged and a doctor in California will take
over at this point. From all the professional information I
can gather there would seem no **162 great risk in allowing
this man to return to pastoral work, but there are legal
complications at present writing. Incidentally, these legal
technicalities would permit Father's going to another State as
long as treatment is continued. [{ ] ... [| ] There is no
thought of incardination involved, and I am quite willing to
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
accept the man back into the Archdiocese whenever
circumstances would indicate. Though I anticipate no
recurrence of this past aberration, I would certainly want to
be informed if the slightest suspicion were to develop. I
would like to show fraternal charity to a fellow priest but I
cannot be virtuous at the expense of a fellow Bishop."
On January 10, 1977, Widera was appointed as associate
pastor "in hospitality" at St. Pius V Parish in Buena Park.
Driscoll wrote to Cousins confirming the appointment. in
response, Cousins wrote a letter to Johnson confizming
Widera would remain « member of the Milwaukee
Archdiocese and stating: "Permit me to express my sincere
thanks to you and those involved for this consideration of a
priest who has done good work and whose absence from the
Diocese is predicated upon the local situation discussed in
earlier letters. [| ] I fully expect that upon the
recommendation of those professionally helping him at the
present time he will be reassigned in our Archdiocese."
Cousins also wrote to Widera telling him: "According to our
earlier conversations, your stay in California will be
determined by the doctor recommended to you before your
departure and to whom I confidently trust you have
committed yourself for necessary help. Treatment is
important to you and essential to your future assignment, but
I have every reason to believe that you will accept this
condition and work towards an early return."
The Milwaukee Archdiocese did not inform the Orange
Diocese of Widera's criminal conviction for sexual
perversion, provided no specific information regarding any
of the molestation allegations, and did not warn that Widera
might be a danger among children. Driscoll testified he
would not *432 have recommended accepting into the
Orange Diocese any priest who had a criminal conviction or
who posed a danger to minors.
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
During the period in which Widera worked in California but
was incardinated in Wisconsin, he remained subject to the
jurisdiction, authority, and control of the Archbishop of
Milwaukee. The Archbishop of Milwaukee had the authority
to recall Widera to Wisconsin, to remove his faculties as a
priest, to investigate whether he had committed acts of
molestation, and to petition the Pope to laicize him.
Widera worked.-at St. Justin Martyr Parish in Anaheim from
April 1977 to July 1981. Widera allegedly molested two
boys while serving at St. Justin Martyr. There is no evidence
these allegations were reported at the time to any church
officials. In July 1981, Widera was transferred to St.
Edward's Parish in Dana Point because diocesan policy was
to rotate associate pastors every four years.
D. Widera Is Excardinated from the Milwaukee Archdiocese
and Incardinated in the Orange Diocese.
In October of 1981, Widera sought incardination into the
Orange Diocese. Under Canon Law, a diocesan priest cannot
be incardinated in two dioceses at the same time. (See
Stevens _v. Roman Catholic Bishop of Fresno, supra, 49
Cal.App.3d 877 at p. 885, 123 Cal.Rptr. 171.) The proper
canonical process was to excardinate Widera from the
Milwaukee Archdiocese and to incardinate him into the
Orange Diocese. Once a diocesan priest becomes
incardinated in a new diocese, his **163 relationships,
obligations, and connections with the former diocese cease.
Widera was excardinated from the Milwaukee Archdiocese
and incardinated in the Orange Diocese on November 23,
1981. Widera accordingly was removed from the Milwaukee
Archdiocesan priest fund, personnel roll, pension plan, priest
senate, and payroll.
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
Correspondence between the Milwaukee Archdiocese and
the Orange Diocese was exchanged during the process of
Widera's excardination and incardination. In a letter dated
October 27, 1981, Driscoll formally requested the
Archbishop of Milwaukee to excardinate Widera. Driscoll
wrote, "Father Widera came to the Diocese for medical
reasons and [Cousins] wrote [Johnson], regarding the
possibility of extending the Hospitality of the Diocese of
Orange to Father Widera while he was on leave from the
Archdiocese of Milwaukee." (Italics added.) In a letter
dated November 23, 1981, enclosing the letter of
excardination, Msgr. Sylvester Gass, the Milwaukee
Archdiocese's Vicar General, wrote to Driscoll: "Canon 117, -
2° *433 mentions that testimonials regarding the priest's
birth, life, moral character and studies are to be provided by
the excardinating bishop. If you have need of any or all of
this pertinent information, we shall be happy to provide it."
In a letter to Gass dated December 4, 1981, Driscoll thanked
the Archbishop of Milwaukee for granting Widera's request
for excardination and stated, "[rjegarding the materials on
file in your Chancery Office concerning testimonials of
Father Widera, we believe that these testimonials can remain
on file in the archives of the Archdiocese of Milwaukee and
it is not necessary to forward them to us." None of the
correspondence from the Milwaukee Archdiocese mentioned
Widera's criminal conviction.
Widera's decree of incardination in the Orange Diocese
stated the diocese was "officially advised that you [Widera]
have [received] a decree of excardination from THE
ARCHDIOCESE OF MILWAUKEE with assurance of your
good character, your course of studies and your good
example." (Italics added.)
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
After incardination in the Orange Diocese, Widera worked
at several parishes until he was assigned to St. Martin de
Porres in Yorba Linda in July 1985. Paino attended St.
Martin de Porres. Paino declared under oath: "When Father
Widera was transferred to St. Martin de Porres, he
immediately began to befriend me and my family. [ ] ... In
1985, shortly after he came to St. Martin de Porres, and when
I was 8 years old, Father Widera began to molest me."
II.
PROCEEDINGS IN THE TRIAL COURT
In April 2002, Paino filed a complaint against the Orange
Diocese, the Milwaukee Archdiocese, and Widera, alleging
11 causes of action based upon alleged acts of sexual abuse.
Paino alleged that "[e]ven though the Defendants Dioceses
knew and should have known that Father Widera had
molested and sexually abused minors, and even though the
Defendant Dioceses had actual and constructive knowledge
of the molestations and sexual abuses, the Defendants
Dioceses[ ] covered up the molestations and abuses by Father
Widera, continued to allow Father Widera to act as a
Catholic priest within the Defendants Dioceses[ ], continued
to hold Father Widera out as a Catholic priest who could be
trusted with minor parishioners and minor students,
continued to allow Father Widera to work with minor
parishioners and minor students on a daily basis, and
continued to move Father Widera around to **164 different
Catholic churches within the Defendants Dioceses[ ]."
The Milwaukee Archdiocese moved to quash service of
summons for lack of personal jurisdiction. Paino opposed
the motion.
*434 At the hearing on October 21, 2002, the court denied
the motion to quash, stating: "I'm going to deny the motion.
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
I believe that the critical issue of whether this moving party
deliberately and purposefully availed itself of the jurisdiction
of the State of California is one that requires that I deny the
motion. [{ ] The evidence is certainly sufficient to show that
the Archdiocese in Milwaukee chose to place this
troublesome member of its clergy here in California as a sort
of lend-lease program with the hope that he would be out of
their sight and out of their jurisdiction. [| ] But the danger
may or may not have been adequately explained. Even if the
danger was fully explained, I think the issue there doesn't
alter the court's conclusion about the Archdiocese of
Milwaukee's deliberate and intentional availing of the
facilities here in California. [{] ] That may well pass the
responsibility on to the Diocese of Orange, but it doesn't
mean that the Archdiocese of Milwaukee did not
intentionally avail itself of the facilities here in California. [4
] So I have to deny the motion."
The Milwaukee Archdiocese filed a petition for writ of
mandate challenging the order denying its motion to quash.
We issued an order to show cause, asked for a response to
the petition, and heard oral argument.
IV,
BURDEN OF PROOF AND STANDARD OF REVIEW
{1}[2][3] “When a nonresident defendant challenges
personal jurisdiction, the plaintiff bears the burden of proof
by a preponderance of the evidence to demonstrate the
defendant has sufficient minimum contacts with the forum
state to justify jurisdiction." (DVI, Inc. v. Superior Court
(2002) 104 Cal.App.4th 1080, 1090, 128 Cal.Rptr.2d 683;
see also Vons Companies, Inc. v. Seabest Foods, Inc- (1996)
14 Cal.4th 434, 449, 58 Cal.Rptr.2d 899, 926 P.2d 1085
(Vons ).) The plaintiff must " 'present facts demonstrating
that the conduct of defendants related to the pleaded causes
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
is such as to constitute constitutionally cognizable "minimum
contacts." [Citation.]' " (DVI, Inc. v. Superior Court, supra,
104 Cal.App.4th at pp. 1090-1091, 128 Cal.Rptr.2d 683.)
"An unverified complaint has no evidentiary value in
meeting the plaintiff's burden of proving minimum contacts."
(/d. at p. 1091, 128 Cal.Rptr.2d 683.)
[4][S5][6][7] When the evidence of jurisdictional facts is not
in dispute, whether the defendant is subject to personal
jurisdiction is a legal question subject to de novo review.
(Vons, supra, 14 Cal.4th at p. 449, 58 Cal.Rptr.2d 899, 926
P.2d 1085.) When evidence of jurisdiction is in dispute, the
triai court's determination of factual issues is reviewed for
substantial evidence. (/bid.; see also DVI, Inc. v. Superior
Court, supra, 104 Cal.App.4th at p. 1091, 128 Cal.Rptr.2d
683.) We must accept the trial court's resolution of factual
issues and draw all reasonable inferences in support of *435
the trial court's order. (J/ntegral Development Corp. v.
Weissenbach (2002) 99 Cal.App.4th 576, 584, 122
Cal.Rptr.2d 24.) "The ultimate question whether jurisdiction
is fair and reasonable under all of the circumstances, based
on the facts which are undisputed and those resolved by the
court in favor of the prevailing party, is a legal determination
warranting our independent review." (Jd. at _p. 585, 122
Cal.Rptr.2d 24.)
**165 V.
JURISDICTIONAL REQUIREMENTS
[8] Califormia courts may exercise jurisdiction over
nonresidents "on any basis not inconsistent with the
Constitution of this state or of the United States." (Code Civ.
Proc., § 410.10.) The statute "manifests an intent to exercise
the broadest possible jurisdiction, limited only by
constitutional considerations." (Sibley v. Superior Court
(1976) 16 Cal.3d 442, 445, 128 Cal.Rptr. 34, 546 P.2d 322.)
Al5
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
[9][10] Ti:> federal Constitution permits a state to exercise
jurisdiction cver a nonresident defendant if the defendant has
sufficient "minimum contacts" with the forum such that
"maintenance of the suit does not offend ‘traditional notions
of fair play and substantial justice.’ [Citations.}" (/nternat.
Shoe Co. v. Washington (1945) 326 U.S. 310, 316, 66 S.Ct.
154, 90 L.Ed. 95.) "The ‘substantial connection,' [citations],
between the defendant and the forum State necessary for a
finding of minimum contacts must come about by an action
of the defendant purposefully directed toward the forum
State. [Citations.]" (Asahi Metal Industry Ce v. Superior
Court (1987) 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d
92.)
[11][12][13] "Personal jurisdiction may be either general or
specific." (Vons, supra, 14 Cal.4th at p. 445, 58 Cal.Rptr.2d
899, 926 P.2d 1085.) A nonresident defendant is subject to
the forum's general jurisdiction where the defendant's
contacts are " ‘substantial ... continuous and systematic.’ "
(Ibid., quoting Perkins v. Benguet Consol. Mining Co. (1952)
342 U.S. 437, 445, 446, 72 S.Ct. 413, 96 L.Ed. 485.) In that
situation, the cause of action need not be related to the
cefendant's contacts. (Vons, supra, 14 Cal.4th at p. 445, 58
Cal.Rptr.2d_ 899, 926 P.2d 1085; Cornelison_v. Chaney
(1976) 16 Cal.3d 143, 147, 127 Cal.Rptr. 352, 545 P.2d 264.)
"Such a defendant's contacts with the forum are so wide-
rangin,’ that they take the place of physical presence in the
forum as a basis for jurisdiction." (Vons, supra, 14 Cal.4th at
p. 446, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)
[14] If the nonresident defendant does not have substantial
and systematic contacts with the forum state, the defendant
may be subject to specific jurisdiction if (1) " 'the defendant
has purposefully availed himself or herself of forum benefits'
" with respect to the matter in controversy, (2) " 'the *436
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
"controversy is related to or ‘arises out of' [the] defendant's
contacts with the forum," ' " and (3) the exercise of
jurisdiction would comport with fair play and substantial
justice. (Pavlovich, supra, 29 Cal.4th at p. 269, 127
Cal.Rptr.2d 329, 58 P.3d 2; Vons, supra, 14 Cal.4th at pp.
446, 447, 58 Cal.Rptr.2d 899, 926 P.2d 1085; see also
Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472,
476, 105 S.Ct. 2174, 85 L.Ed.2d 528.)
VI.
DISCUSSION
Paino does not assert the Milwaukee Archdiocese is subject
to general jurisdiction in California. He contends the trial
court was correct in concluding the Milwaukee Archdiocese
was subject to specific jurisdiction because the Milwaukee
Archdiocese purposefully availed itself of forum benefits by
taking actions to move Widera, a known pedophile, into
California, where he continued to molest boys.
A. Purposeful Availment
[15][16][17] The purposeful availment inquiry focuses on
the defendant's " ‘intentionality’ " and is satisfied " 'when the
defendant purpesefully and voluntarily directs his activities
toward the forum so that he should expect, by virtue of the
**166 benefit he receives, to be subject to the court's
jurisdiction based on' his contacts with the forum."
(Pavlovich, supra, 29 Cal.4th at p. 269, 127 Cal.Rptr.2d 329,
58 P.3d 2.) The purposeful availment requirement is intended
to ensure a defendant will not be haled into a jurisdiction
solely as a result of " 'random,' 'fortuitous,' or ‘attenuated’ "
contacts, or as a result of the " ‘unilateral activity’ " of
another party or a third person. (/bid.) Purposeful availment
asks whether the defendant's "conduct and connection with
the forum State are such that he should reasonably anticipate
aL
Al7
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
being ha’ed into court there." (World-Wide Volkswagen
Corp. v. Vi'vodson (1980) 444 U.S. 286, 297, 100 S.Ct. 559,
62 L.Ed.2c 490.)
1. Express Aiming or Targeting
[18] Under the "effects" test for determining purposeful
availment, a defendant might be subject to jurisdiction in the
forum state if the defendant engaged in intentional conduct
"expressly aimed at or targeting the forum state," and the
defendant knew the intentional conduct would cause harm in
the forum. (Pavlovich, supra, 29 Cal.4th at p. 271, 127
Cal.Rptr.2d 329, 58 P.3d 2.)
In Pavlovich, supra, 29 Cal.4th at page 262, 127 Cal.Rptr.2d
329, 58 P.3d 2, the Supreme Court cozsidered whether a
California court properly exercised personal jurisdiction over
a defendant based upon the posting of an Internet Web site.
Pavlovich was a *437 Texas resident and had no contacts
with California. (/d. at p. 266, 127 Cal.Rptr.2d 329, 58 P.3d
2.) He founded and was leader of a video project which
operated a Web site that posted the source code of a program
named DeCSS. (Jd. at pp. 266-267, 127 Cal.Rptr.2d 329, 58
P.3d 2.) DeCSS allowed a user to circumvent the Content
Scrambling System (CSS), which prevents the playing or
copying of copyrighted motion pictures recorded on digital
versatile discs (DVD's). (ibid.) In short, DeCSS allowed a
user to download copyrighted movies onto the user's hard
drive or other storage media. (/bid.)
DVD Copy Control Association, Inc. (DVD CAA), is a
nonprofit trade organization organized under Delaware law
with its principal place of business in California. (Pavlovich,
supra, 29 Cal.4th at p. 266, 127 Cal.Rptr.2d 329, 58 P.3d 2.)
DVD CAA's purpose was to control and administer licensing
of CSS technology. (/bid.) DVD CAA sued Pavlovich in
Als
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
California, alleging he misappropriated its trade secreis by
posting the DeCSS program on his Web site. (/d. at p. 267,
127 Cal.Rptr.2d 329, 58 P.3d 2.) The evidence showed
Pavlovich knew of an organization which controlled the use
of CSS technology, but did not learn that organization was
DVD CAA or that DVD CAA had its principal place of
business in California until after the lawsuit was filed. (/bid.)
DVD CAA asserted personal jurisdiction on the ground
Pavlovich knew his actions would harm California
businesses.
The California Supreme Court examined and clarified the
effects test for determining purposeful availment.
(Pavlovich, supra, 29 Cal.4th 262, 127 Cal.Rptr.2d 329, 58
P.3d 2.) The court turned first to Calder v. Jones (1984) 465
U.S. 783, 104 §.Ct. 1482, 79 L.Ed.2d 804 (Calder ) in which
the United States Supreme Court described the " ‘effects test'
" in the defamation context. (Pavlovich, supra, 29 Cal.4th at
p. 269, 127 Cal.Rptr.2d 329, 58 P.3d 2.) In Calder, a
reporter in Florida wrote an article for the National Enquirer
about Shirley Jones, a well-known actress who lived and
worked in California. Jones sued the reporter and the editor
for libel in California. They moved to quash service of
process on the ground they **167 lacked minimum contacts
with California. (Calder, supra, 465 U.S. at pp. 785-786,
104 S.Ct. 1482.) The United States Supreme Court
disagreed, and upheld jurisdiction because "[t]he allegediy
libelous story concerned the California activities of a
California resident. It impugned the professionalism of an
entertainer whose television career was centered in
California.... [T]he brunt of the harm, in terms both of
respondent's emotional distress and the injury to her
professional reputation, was suffered in California. In sum,
California is the focal point both of the story and of the harm
suffered. Jurisdiction over petitioners is therefore proper in
California based on the ‘effects' of their Florida conduct in
Al9
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
California." (Jd. at pp. 788-789, 104 S.Ct. 1482, fn.
omitted.) The defendants' intentional conduct was "expressly
aimed at California," where the defendants knew it
potentially would harm Jones. (Jd. at p. 789, 104 S.Ct. 1482.)
The Pavlovich court recognized the lack of uniformity in
applying the Calder test. (Pavlovich, supra, 29 Cal.4th at p.
270, 127 Cal.Rptr.2d 329, 58 P.3d 2.) In particular, the *438
Pavlovich court acknowledged that courts have struggled
over whether Calder stands for the broad proposition that a
foreign act with foreseeable effects in the forum state always
gives rise to specific jurisdiction. (Jbid.) The Pavlovich court
reviewed federal and out-of-state cases and concluded,
"virtually every jurisdiction has held that the Calder effects
test requires intentional conduct expressly aimed at or
targeting the forum state in addition to the defendant's
knowledge that his intentional conduct would cause harm in
the forum." (/d. at p. 271, 127 Cal.Rptr.2d 329, 58 P.3d 2,
fn. omitted.) The Pavlovich court "join[ed] with those
jurisdictions that require additional evidence of express
aiming or intentional targeting." (/d. at p. 273, 127
Cal.Rptr.2d 329, 58 P.3d 2.)
Applying the effects test, the Pavlovich court concluded
Pavlovich was not subject to California jurisdiction because
there was no evidence the Web site targeted California or
any California resident visited the Web site. (Pavlovich,
supra, 29 Cal.4th at p. 274, 127 Cal.Rptr.2d 329, 58 P.3d 2.)
The court concluded Pavlovich's knowledge that his tortious
conduct might harm certain industries centered in California,
though relevant to any determination of personal jurisdiction,
"alone is insufficient to establish express aiming at the forum
state as required by the effects test." (/d. at p. 278, 127
Cal.Rptr.2d 329, 58 P.3d 2.)
2. Application of Effects Test
A20
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
[19] Did the Milwaukee Archdiocese engage in intentional
conduct expressly aimed at or targeting California, knowing
the intentiona! conduct would cause harm in this state? The
evidence supports the conclusion the Milwaukee
Archdiocese intentionally sent Widera to California to get
him out of Wisconsin where he had been convicted of sexual
perversion against a boy and could create further problems
for the Milwaukee Archdiocese. As the trial court
cencluded, "the evidence is certainly sufficient to show that
the Archdiocese of Milwaukee chose to place this
troublesome member of its clergy here in California as a sot
of lend-le2. program with the hope that he would be out of
their sight and out of their jurisdiction." The evidence
supported the conclusion the Milwaukee Archdiocese knew
Widera was a pedophile and posed a serious threat of
sexually abusing boys in California. By sending a known
pedophile into California, the Milwaukee Archdiocese aimed
its intentional conduct directly at this state. The brunt of the
harin, indeed all of the harm, resulted in California. Having
sent Widera into California knowing he was a convicted
child abuser and a pedophile, the Milwaukee **168
Archdiocese reasonably could expect to be haled into court
in California to answer for the consequences of its actions.
The Milwaukee Archdiocese contends the evidence does not
support a finding of purposeful availment. The Milwaukee
Archdiocese contends Widera voluntarily moved to
California in 1976 because he had family here. *439 The
evidence supports a contrary conclusion. As part of his
sentence for sexual perversion, Widera was ordered not to
return to the Port Washington, Wisconsin area. Henke, the
pastor of St. Andrew's Parish, wanted Widera removed.
Concerns were raised over whether Widera could "in
conscience" be reassigned within the Milwaukee
Archdiocese "in view of Widera's record." A cover story
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
was created: Widera would go " 'on vacation’ " to California.
In the ombudsman's notes, the words "on vacation" were set
off by quotation marks. When asked why he was leaving,
Widera was instructed to say "only that he's going on
vacation." After going to California, Widera wrote: "It was
on advice that I left the area."
Once Widera was in California, the Milwaukee Archdiocese
never recalled him, although it had the power to do so, never
questioned him, never monitored his treatment, and never
conducted an investigation to determine whether he
continued to molest boys. The Milwaukee Archdiocese
allowed Widera to be excardinated so he could be
incardinated in the Orange Diocese. Accepting the trial
court's resolution of factual issues and drawing all reasonable
inferences in support of the trial court's order (/ntegral
Development Corp. v. Weissenbach, supra, 99 Cal.App.4th at
p. 584, 122 Cal.Rptr.2d 24), we conclude the evidence
supports the finding that the Milwaukee Archdiocese made
and enacted a concerted plan to nid itself of Widera by
intentionally placing him in California.
The Milwaukee Archdiocese contends it sufficiently
disclosed Widera's prior misconduct to the Orange Diocese.
The Milwaukee Archdiocese points to Cousins's letter of
December 20, 1976, in which Cousins wrote that Widera
"{iJn his earlier years" had "a moral problem having to do
with a boy in school" and that "{[mJore recently ... there has
been a repetition." |
Is it relevant to the "effects" test whether or not the
Milwaukee Archdiocese disclosed Widera's prior misconduct
to the Orange Diocese? No. The Milwaukee Archdiocese rid
itself of Widera by sending him into California, knowing he
was a pedophile and had been convicted of perversion with a
boy. The Milwaukee Archdiocese's conduct was intentional
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
and was expressly aimed at California. The Milwaukee
Archdiocese knew its intentional conduct would cause harm
in California. Thus, the Milwaukee Archdiocese's conduct
satisfied the "effects" test, regardless whether it gave the
Orange Diocese "fair warning" of Widera's prior misconduct.
Even if considered, Cousins's letter, with all reasonable
inferences favoring the trial court's order (/ntegral
Development Corp. v. Weissenbach, supra, 99 Cal.App.4th at
p. 584, 122 Cal.Rptr.2d 24), supports the conclusion the
Milwaukee Archdiocese engaged in express aiming at or
targeting California. The letter appears to be intentionally
vague and incomplete; it does not describe what is meant by
"a *440 moral problem," does not disclose when the "moral
problem" occurred, does not identify the repetition, and, most
importantly, does not disclose Widera's criminal conviction
for sexual perversion. The letter states, "there would seem no
great risk in allowing [Widera] to return to pastoral work"
when, in fact, there was great risk in allowing Widera to be
near boys. In fact, the record contains no evidence the
Milwaukee Archdiocese ever informed the Orange Diocese
**169 of Widera's criminal conviction or specifically
described his misconduct.
Another issue remains in applying the effects test. In
Pavlovich, supra, 29 Cal.4th 262, 127 Cal.Rptr.2d 329, 58
P.3d 2, the court concluded Pavlovich's knowledge that his
tortious conduct might harm certain industries centered in
California was not dispositive of jurisdiction. "Because the
only evidence in the record even suggesting express aiming
is Pavlovich's knowledge that his conduct may harm
industries centered in California, due process requires us to
decline jurisdiction over his person." (Jd. at p. 278, 127
Cal.Rptr.2d 329, 58 P.3d 2.) Some federal courts, in
formulating the effects test, have concluded " ‘express
aiming’ encompasses wrongful conduct individually targeting
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
a known forum resident." (Bancroft & Masters, Inc. v.
Augusta Nat. Inc. (9th Cir.2000) 223 F.3d 1082, 1087; see
also, e.g., Cybersell, Inc. v. Cybersell, Inc. (9th Cir.1997)
130 F.3d 414, 416.)
Here, the Milwaukee Archdiocese did not know who Paino
was and could not have expressly aimed its conduct at him.
However, we do not believe the effects test required the
Milwaukee Archdiocese to know the identities of Widera's
future victims. This is not a situation, as in Pavlovich, where
the defendant's conduct could harm any of a number of
industries and businesses, some of which might be centered
in California. The nature of the Milwaukee Archdiocese's
conduct--sending a pedophile priest directly into California--
meant the Milwaukee Archdiocese's conduct would harm
California residents. In other words, the Milwaukee
Archdiocese's conduct targeted a known group of California
residents--boys, specifically, Roman Catholic boys-- as a
means of getting Widera out of the Milwaukee Archdiocese.
Such targeting is, we believe, sufficiently individualized to
satisfy due process because the Milwaukee Archdiocese
could reasonably anticipate being haled into court in
California.
The Milwaukee Archdiocese argues the case of Doe v.
Roman Catholic Diocese of Boise, Inc. (N.M.Ct.App.1996)
121 N.M. 738, 918 P.2d 17 is "strikingly similar" and
supports quashing service of summons. We disagree. In that
case, the Roman Catholic Bishop of Boise granted a priest's
request to leave Idaho and seek assignment as a priest
elsewhere. (/d. at p. 740, 918 P.2d 17.) The priest went to
New Mexico, where he was accused of molesting a boy.
(Ibid.) The New Mexico Court of Appeals held the Roman
Catholic Diocese of Boise was not subject to jurisdiction in
New Mexico *441 because the diocese played no part in the
priest's decision to settle in New Mexico, but only granted
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
the priest permission to leave Idaho. "The fact that after the
Boise Diocese gave Father Garcia permission to leave Idaho,
Father Garcia subsequently selected New Mexico from
among several other possible diocesan destinations in which
to seek employment as a priest does not constitute a
purposeful act by the Boise Diocese to avail itself of the
benefits and protections of New Mexico law." (/d. at p. 744,
918 P.2d 17.)
Here, in stark contrast, the Milwaukee Archdiocese did not
merely approve a request to work outside the Milwaukee
Archdiocese or acquiesce in Widera's move. Rather, the
evidence supports the finding the Milwaukee Archdiocese
sought to rid itself of Widera by intentionally sending him
into California.
We conclude Paino met his burden of proving by a
preponderance of the evidence that under the effects test, the
Milwaukee Archdiocese's conduct met the purposeful
availment requirement for specific jurisdiction in California.
In reaching this conclusion, we do not, and need not, **170
consider Canon Law; accordingly, we deny Paino's request
for judicial notice.
B. Relationship Between the Milwaukee Archdiocese's
Contacts and the Forum
[20][21] We next determine whether Paino's claims are
related to or arise out of the Milwaukee Archdiocese's forum
contacts. (Pavlovich, supra, 29 Cal.4th at p. 269, 127
Cal.Rptr.2d 329, 58 P.3d 2.) "A claim need not arise directly
from the defendant's forum contacts in order to be
sufficiently related to the contact to warrant the exercise of
specific jurisdiction. Rather, as long as the claim bears a
substantial connection to the nonresident's forum contacts,
the exercise of specific jurisdiction is appropriate." (Vons,
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
supra, 14 Cal.4th 434, 452, 58 Cal.Rptr.2d 899, 926 P.2d
1085; see also Cornelison v. Chaney, supra, 16 Cal.3d 143,
148, 127 Cal.Rptr. 352, 545 P.2d 264 ["The crucial inquiry
concerns ... whether the cause of action arises out of or has a
substantial connection with [the forum] activity"].)
Paino alleged, "[i]n or about 1985, when Plaintiff was about
8 years old, and continuing through when Plaintiff was 9
years old, Father Widera molested Plaintiff and Plaintiff's
brother." Paino alleged the Milwaukee Archdiocese knew
Widera had sexually abused boys but "covered up the
molestations and abuses," continued to allow Widera to act
as a Catholic priest, held out Widera as a priest who could be
trusted with minors, and continued to allow Widera to work
with minors.
Paino's claims bear a_ substantial connection to the
Milwaukee Archdiocese's forum contacts. As explained
above, the evidence supports the *442 conclusion the
Milwaukee Archdiocese purposefully availed itself of forum
benefits by engaging in intentional conduct expressly aimed
at California. That conduct consisted of ridding itself of
Widera by sending him to California. Paino alleged Widera-
-the man whom the Milwaukee Archdiocese sent to
California--molested him. Paino's claims for sexual abuse
arise out of the same kind of conduct that prompted the
Milwaukee Archdiocese to send Widera to California.
The Milwaukee Archdiocese argues it had no connection
with California at the time Paino was allegedly molested. As
the Milwaukee Archdiocese argues, the Orange Diocese was
responsible for Widera's assignments after 1977, Widera was
incardinated in the Orange Diocese in 1981, and Paino was
not allegedly molested until four years later. In essence, the
Milwaukee Archdiocese is asserting its conduct could not
have caused Paino's injuries because, at least by 1981, the
A26
112 Cal.App.4th 423, 5 Cel. Rptr.3d 154
Orange Diocese had assumed responsibility for Widera. In
Vons, supra, 14 Cal.4th at pages 460-467, 58 Cal.Rptr.2d
899, 926 P.2d 1085, the California Supreme Court firmly
rejected a proximate cause test for analyzing the relation
between the defendant's forum contacts and the plaintiff's
claims in determining specific jurisdiction. "To require that
the injury be proximately caused by the forum contact is to
require that the injury ‘arise out of' the forum contact in the
strictest sense. Such a requirement is inconsistent with the
formulation that appears in [United States Supreme Court
authority].... [Citations.] ... [and] is inconsistent with the
relevant standard in Cornelison [v. Chaney }...." (Id. at p.
462, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)
[22] Thus, for jurisdiction purposes, the question is not
whether the Milwaukee Archdiocese's forum contacts were
the proximate cause of Paino's injuries, but whether Paino's
claims "bear[ ] a substantial connection" to those contacts.
(Vons, supra, 14 Cal.4th at p. 452, 58 Cal.Rptr.2d 899, 926
P.2d 1085.) We conclude Paino's **171 claims are
substantially connected to the Milwaukee Archdiocese's
intentional conduct expressly aimed at California.
C. Fair Play and Substantial Justice
[23][24][25| Having determined the Milwaukee
Archdiocese established minimum contacts with California
and those contacts are substantially related to Paino's claims,
we must consider whether the assertion of specific
jurisdiction is fair. In assessing fairness, we consider (1) the
burden on the Milwaukee Archdiocese of defending in
California, (2) California's interests, (3) Paino's interest in
obtaining relief, (4) the interstate judicial system's interest in
obtaining the most efficient resolution of the controversy,
and (5) " 'the shared interest of several States in furthering
fundamental substantive social policies.’ " (Asahi Metal
A27
112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
Industry Co. v. Superior Court, supra, 480 U.S. at p. 113,
107 S.Ct. 1026; see also Vons, supra, 14 Cal.4th at p. 476,
58 Cal.Rptr.2d 899, 926 P.2d 1085.) The defendant bears the
*443 burden of presenting a "compelling case" that
jurisdiction would be unreasonable. (Burger King Corp. v.
Rudzewicz, supra, 471 U.S. 462, 477, 105 S.Ct. 2174, 85
L.Ed.2d 528; Integral Development Corp. v. Weissenbach,
supra, 99 Cal.App.4th at p. 591, 122 Cal.Rptr.2d 24.)
Although the Milwaukee Archdiocese is a not-for-profit
organization, it is sufficiently large that defending itself in
California would not impose an unreasonable burden on it.
California has a particularly strong interest in asserting
jurisdiction over the Milwaukee Archdiocese. California has
an interest in protecting its children from sexual abuse and
providing them a forum to assert such claims. California
also has an interest in not becoming the target for pedophiles
from other jurisdictions. Paino, a California resident,
certainly has an interest in obtaining relief in California for
alleged sexual molestation occurring in California. Asserting
jurisdiction over the Milwaukee Archdiocese in California
would provide the most efficient resolution of the
controversy because Paino's claims against the Orange
Diocese are pending here. Finally, Wisconsin and California
have a shared interest in furthering the social policy of
protecting children from sexual abuse; that social policy is
furthered by asserting jurisdiction over the Milwaukee
Archdiocese in California.
We therefore conclude assertion of jurisdiction over the
Milwaukee Archdiocese is fair.
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112 Cal.App.4th 423, 5 Cal.Rptr.3d 154
DISPOSITION
The Milwaukee Archdiocese's petition for writ of mandate is
denied. Paino shall recover his costs incurred im this
proceeding.
WE CONCUR: SILLS, P.J., and RYLAARSDAM, J.
5 Cal.Rptr.3d 154, 112 Cal.App.4th 423, 3 Cal. Daily Op.
Serv. 8847, 2003 Daily Journal D.A.R. 11,117
END OF DOCUMENT
A29
Court of Appeal, Fourth Appellate District,
Division Three - No. G03 1386
$120214
IN THE SUPREME COURT OF CALIFORNIA
En Banc
THE ARCHDIOCESE OF MILWAUKEE, Petitioner,
V.
SUPERIOR COURT OF ORANGE COUNTY, Respondent;
ERIC NATHAN PAINO, Real Party in Interest.
Application to appear pro hac vice DENIED.
Petition for review DENIED.
/s/
Chief Justice
Bl
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