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For three months in late 1999, Father Felix Namocatcat, an associate pastor at Our Lady of Mount Carmel Church in Mill Valley, allegedly had a sexual relationship with a parishioner identified only as Richelle L. When the affair — which the priest denies ever happened — came to an abrupt end, Richelle claimed personal devastation and sued both Namocatcat and the Roman Catholic archbishop of San Francisco, the priest’s employer, on several grounds, including breach of fiduciary duty. Her novel claim suggests that the priest owes her monetary damages because the two had a “special relationship” — akin to those between a lawyer and client or a doctor and patient — that established a duty of care that the priest breached through the act of seduction and deceit (she claims he was engaged in another affair simultaneously). A San Francisco Superior Court judge tossed out the claims, and on Thursday a three-judge panel of the First District Court of Appeal appeared equally skeptical, especially considering that Richelle has never argued that she and Namocatcat were engaged in any kind of counseling or other spiritual guidance. “That’s a very unwise argument,” Justice J. Anthony Kline sternly told Richelle’s lawyer, San Francisco solo practitioner Brian McCaffrey, during a lengthy and boisterous oral argument. “You are so confusing the nature of fiduciary relationship with something else that no one is ever going to buy. There is no fiduciary duty unless there is a confidential relationship,” said Kline, who dominated the session. “All you’ve alleged is a traditional relationship between a priest and a parishioner.” Following Richelle’s reasoning, the justice said, could expose priests, pastors and rabbis to a broad range of liability. McCaffrey, however, insisted that his client had been getting “informal counseling” from Namocatcat and had developed a “relationship of trust and authority” that was far more than just priest and parishioner. “She was not just a back bencher who listened to his sermons,” he said. “There were confidences exchanged, in that he was her spiritual adviser.” But, said Kline, even if the court drew the bright line that a priest could be sued for breach of fiduciary duty, McCaffrey would lose. In the trial court, he never tried to assert a counseling or adviser connection. Kline also said he couldn’t see any way that the archbishop of San Francisco can be sued for breach of fiduciary duty for failing to prevent the alleged sexual activity. “Under this complaint, your client has never met the archbishop,” Kline said. “How can there be a confidential relationship? Is it even tenable?” Kline also brought up Nally v. Grace Community Church, 47 Cal.3d 278, the 1988 California Supreme Court ruling that refused to impose a civil law duty of care solely on the religious status or activities of a church or clergyman. He called Nally “the death knell” for malpractice claims for pastoral misconduct. “This is not a close question,” Kline said. “Your claim of a special relationship is a claim of clerical malpractice. That cannot be squared with Nally.” McCaffrey’s opponents had argued not only that Nally backed their position, but that the affair as alleged by Richelle occurred between two consenting adults, and that “otherwise legal activity is not susceptible to liability simply because it is supposedly done in the name of religion.” “We simply have a priest and his parishioner,” Paul Gaspari, the Tobin & Tobin partner who represents the archbishop, told the justices on Thursday. “That’s all we have here.” Kline immediately noted, though, at least a half-dozen cases across the country in which priests have been exposed to tortious liability over sexual misconduct. “I don’t see why the fact they are consenting adults immunizes the priest or the archbishop. Why does it have to be criminal?” he said. “The basic argument here is that [Richelle] was coerced and deceived into a relationship. “Can’t it be argued,” he added, “that what’s critical here is not that [Namocatcat] was a priest, but the plaintiff’s priest?” Gaspari also threw out the theory that Namocatcat was sued only because he was an unmarried Catholic priest under an oath of celibacy. “If he’s an Episcopalian priest who marries, it’s different,” he said. “If Namocatcat was a plumber, we wouldn’t be here.” “You mean,” Kline said, “a plumber cannot be in a confidential relationship with someone else?” “With the purposes of sexual seduction, no,” Gaspari said. “The relationship between plumber and customer is commercial, and is heavily regulated,” he added. “The relationship between priest and parishioner is religious, and cannot be regulated.” Kline hinted that the panel could find priests subject to fiduciary duties if they are part of a confidential relationship, and suggested the possibility of remanding the case to the superior court to give McCaffrey the opportunity to amend his complaint to allege that Namocatcat was Richelle’s informal counselor or spiritual adviser. “Nobody,” Kline noted, “ever said in the trial court that [Namocatcat] had a confidential relationship.” Afterward, Namocatcat’s lawyer, McQuaid, Metzler, Bedford & Van Zandt partner Robert Zaletel, wouldn’t comment, other than to say his client denies any misconduct. “And beyond that,” he said, “we think the trial court reached the right conclusion.” The case is Richelle L. v. Roman Catholic Archbishop of San Francisco, A096763.

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