No Jurisdiction Over Mexican Diocese, Court Rules

Monday, February 9, 2009

Page 3

No Jurisdiction Over Mexican Diocese, Court Rules

By a MetNews Staff Writer

This district’s Court of Appeal upheld the dismissal of a lawsuit against Cardinal Norberto Rivera of Mexico City and a Mexican diocese for allegedly conspiring to protect a priest accused of sexual misconduct due to a lack of jurisdiction.

Div. Seven affirmed Los Angeles Superior Court Judge Elihu M. Berle’s dismissal of the claim filed by an adult resident and citizen of Mexico identified only as Joaquin M. in the unpublished opinion Wednesday, concluding that California courts may not exercise personal jurisdiction over foreign defendants in an action brought by a foreign plaintiff for injuries that occurred in a foreign jurisdiction.

Joaquin M. alleged that Rivera and the Diocese of Tehuacan had sent Father Nicholas Aguilar, a Roman Catholic priest incardinated in the Diocese of Tehuacan who had molested him when he was 13, to work in the Los Angeles Archdiocese, knowing that the priest had a history of sexual misconduct.

The Los Angeles District Attorney’s Office filed 19 counts of felony child molestation against Father Aguilar involving 10 victims, but Aguilar fled to Mexico where Joaquin M. claimed the priest later molested him. He filed a criminal complaint in Mexico as well as the civil action in California.

Joaquin M. named Cardinal Roger Mahony, archbishop of Los Angeles, and the Los Angeles Archdiocese as defendants, but later reached a settlement with those defendants and dismissed his claims as to those defendants.

After being served with Joaquin M.’s complaint, Rivera and the Diocese of Tehuacan appeared specially and moved to quash service of summons for lack of personal jurisdiction. They contended that they lacked minimum contacts with the state to support jurisdiction over them.

Rivera argued under canon law, he did not have the authority to transfer any priest outside the Diocese of Tehuacan, and had only granted Aguilar permission to serve in Los Angeles, conditioned upon the Los Angeles Archdiocese’s acceptance of Aguilar for such service.

The cardinal himself was a native and citizen of Mexico and asserted that he had never lived in, or owned property in California.

He testified that he knew Aguilar had been assaulted at his parish residence in 1986, and had heard rumors that the assault may have been precipitated by a homosexual incident.

But the cardinal denied knowing if the rumors were true or that there was any allegation of evidence suggesting the incident had involved children.

Following the assault, Rivera claimed, he reprimanded Aguilar, and counseled him to seek rest and psychiatric help.

Aguilar later tendered his irrevocable resignation and informed the cardinal that he intended to move to Los Angeles, Rivera said.

The cardinal claimed that he wrote a letter to introduce the priest to Mahony, but denied recommending Aguilar for priestly duties in light of the rumors about the priest’s sexual orientation.

He also claimed that he “cautioned” Mahony that Aguilar’s trip to Los Angeles was motivated by “family and health reasons,” a phrase he said was “used within the Church to warn that a priest suffers from some sort of problem,” and informed Mahony about the assault of Aguilar and the rumored provocation for it.

Rivera denied any attempt to facilitate Aguilar’s return to Mexico or any knowledge that the priest had returned. He also asserted that he did not have the authority to force Aguilar to return to Mexico or to go back to California, and that he had not had any contact with the priest.

The Diocese of Tehuacan claimed that it did not pay Aguilar’s travel expenses to Los Angeles and maintained it had no control over him once he left Mexico. The diocese asserted that it did not direct, and was unaware of, Aguilar’s activities while in California.

It noted that it is a Mexican nonprofit organization with its principal place of operation in Tehuacan, Puebla, Mexico, with no employees, designated agent for service of process, offices, or property in California.

Additionally, the diocese argued that it is a distinct and independent religious organization from the Los Angeles Archdiocese.

Berle granted the motion to quash service of process for a lack of jurisdiction.

Writing for the appellate court, Justice Frank Y. Jackson explained that even if Cardinal Rivera and the Diocese of Tehuacan purposefully availed themselves of the benefits of the forum by sending a known sexual deviant to California, Joaquin M.’s claims did not bear any connection to their contacts with California because they arose from an alleged act of molestation in Mexico after Aguilar had fled California to avoid prosecution.

Jackson also noted that California “has no interest in providing a forum to resolve a claim having its genesis in Mexico,” reasoning that the possibility Aguilar had committed similar acts while in California did not compel a contrary conclusion.

“Given that the abuse occurred in Mexico and was inflicted by one Mexican citizen against another Mexican citizen, the resolution of plaintiff’s claim would be most efficient in Mexico,” Jackson wrote.

Presiding Justice Dennis M. Perluss and Justice Laurie D. Zelon concurred with Jackson’s opinion.

Michael G. Finnegan of the St. Paul, Minn. Law firm of Jeff Anderson & Associates, joined by Laurence E. Drivon and Robert T. Waters of Drivon, Turner & Waters, and Santa Monica attorney Martin D. Gross represented Joaquin.

Finnegan Friday praised Joaquin M. as “courageous” for filing suit against Rivera, whom Finnegan called “one of the most powerful people in Mexico,” and the Catholic Church.

He asserted that Mahony was aware of Aguilar’s sexual misconduct in Mexico and that the priest had molested at least 26 children while in Los Angeles before fleeing.

“Our knowledge is that he’s still down there acting as a priest,” Finnegan said.

Although he expressed disappointment with the appellate court’s ruling because it meant his client would not have any recourse for what happened to him, Finnegan said his client has “almost single-handedly” exposed clergy abuse in Mexico “to an extend I didn’t really think was possible down there,” and motivating others to speak out against the cardinal.

The attorney vowed to “help make sure this problem is exposed in Mexico.”

Donald M. Falk, Michael L. Cypers, and Evan M. Wooten of Mayer Brown’s Palo Alto office, with Steven R. Selsberg appearing pro hac vice, represented the cardinal and diocese.

Selsberg, who practices in Mayer Brown’s Houston office, issued a statement asserting that Joaquin M.’s case “isn’t a case to be judged in the United States,” and that there was no evidence the cardinal knew about Father Rivera’s misconduct.

“The California court correctly respected Mexico’s system of justice,” Selsberg said.