Judge dismisses abuse case against Diocese of San Diego

January 24, 2007

One of five clergy-abuse cases set for trial against the Diocese of SanDiego has been dismissed by a judge who ruled there was no evidencethat church officials were aware the accused priest may have been apedophile.

Michael Shoemaker, who now lives in Kansas,filed suit in August 2002 alleging that the late Rev. John Dalymolested him at St. Joseph Church in Holtville in 1977.

After awaking to find Daly orally copulatinghim, Shoemaker said, he and his friend fled the church. They reportedthe incident to Holtville police.

Daly was arrested but never charged, accordingto Walter Dutton, the former officer who made the arrest. Dutton hastestified that he remembered seeing police paperwork citing two priorarrests of Daly on sex-abuse charges.

But in dismissing Shoemaker's lawsuit, SuperiorCourt Judge Haley Fromholz of Los Angeles noted that the plaintiff'sattorneys failed to produce any documents from police files, or Daly'spersonnel file, corroborating previous arrests.

"Even if there were admissible evidencesupporting the existence of these prior arrests, there is no evidencethat (diocese officials) knew or had any reason to know of theiroccurrence," wrote Fromholz in a ruling issued Monday.

Shoemaker tried to argue that church officialsmay have destroyed documents in Daly's personnel file which would haveproved they knew he was a molester, said Dave Carothers, an attorneyrepresenting the San Diego diocese.

"But the court ruled there is no evidence that(Daly's file) was destroyed or mishandled," said Carothers, who filedthe motion to dismiss the case along with attorney Brandy Cody.

"The judge was not going to deny our motion based on speculation," Carothers said.

Proving "notice" – that church officials knew,or should have known, that an individual priest was a sex abuser – canbe a challenge, said Irwin Zalkin.

Zalkin is a San Diego attorney representingabout 30 percent of 160 plaintiffs who have sued the diocese overallegations of sex abuse dating back decades. Shoemaker's attorney,Anthony DeMarco of Los Angeles, did not return phone calls.

"These cases hinge on the issue of notice,"Zalkin said. "In the (Shoemaker) case, there were no documents to relyupon. It's difficult to prove notice when the diocese destroysconfidential files."

About 60 of the 160 sex-abuse cases filed fouryears ago against the Diocese of San Diego have been released forpretrial investigation and depositions, a process known as discovery.

Four lawsuits are now set for trial, beginning on Feb. 28, at the main county courthouse in downtown San Diego.