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Larry WOLLERSHEIM, Plaintiff and Respondent,
v.
CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant and Appellant.
No. B023193.
Court of Appeal, Second District, Division 7, California.
July 18, 1989.
Review Denied Oct. 26, 1989.

Former member of religious organization brought action against organization
alleging intentional and negligent infliction of severe emotional injury. The
Superior Court, Los Angeles County, Ronald Swearinger, J., entered jury verdict
in amount of $30,000,000 in favor of former member and organization appealed.
The Court of Appeal, Johnson, J., held that: (1) practices inflicted upon
former member were conducted in coercive environment and thus were not
qualified as voluntary religious practices entitled to constitutional
protection; (2) member could not maintain action for negligent infliction of
emotional distress; and (3) compensatory and punitive damage awards were
excessive.
Reversed in part, affirmed in part as modified.

[1] DAMAGES
Prima facie case of intentional infliction of emotional distress requires
outrageous conduct by defendant, intention by defendant to cause, or reckless
disregard of probability of causing, emotional distress, severe emotional
distress and actual and proximate causation of emotional distress.

[2] DAMAGES
Conduct by religious organization met criteria for prima facie case of tort of
intentional infliction of emotional distress; organization's conduct in
coercing member into continuing "auditing" although his sanity was threatened,
compelling him to abandon his family, and subjecting him to financial ruin were
manifestly outrageous, which if not wholly calculated to cause emotional
distress unquestionably constituted reckless disregard for likelihood of
causing such distress, and which caused severe emotional distress to former
member.

[3] CONSTITUTIONAL LAW
Establishment Clause of First Amendment guarantees government will not use its
resources to impose religion upon us while Free Exercise Clause guarantees that
government will not prevent its citizens from pursuing any religion they
choose. U.S.C.A. Const.Amend. 1.

[4] CONSTITUTIONAL LAW
In order for governmental policies which have effect of promoting religion to
pass scrutiny under Establishment Clause of First Amendment, they must have
secular purpose, their primary effects must be ones which neither advance nor
inhibit religion and they must avoid any excessive entanglements with
religion. U.S.C.A. Const.Amend. 1.

[5] CONSTITUTIONAL LAW
Under free exercise clause of First Amendment, government may not
constitutionally burden any belief no matter how outlandish or dangerous but it
may burden expression of belief which adversely affects significant societal
interests. U.S.C.A. Const.Amend. 1.

[6] CONSTITUTIONAL LAW
In order for government to burden expression of religious belief without
violating Free Exercise Clause of First Amendment, government must be seeking
to further important state interest, burden on expression must be essential to
further state interest, type and level of burden imposed must be minimum
required to achieve state interest, and measure imposing burden must apply to
everyone, not merely to those who have religious belief. U.S.C.A.
Const.Amend. 1.

[7] CONSTITUTIONAL LAW
Only most compelling of state interest, such as preservation of life or state
itself will justify outright ban on important method of expressing religious
belief. U.S.C.A. Const.Amend. 1.

[8] CONSTITUTIONAL LAW
Less significant state interest may be enough to justify burden on form of
expression of religion where burden is less direct or form of expression less
central to exercise of particular religion. U.S.C.A. Const.Amend. 1.

[9] CONSTITUTIONAL LAW
In order to be entitled to constitutional protections under Freedom of Religion
Clauses, system of thought to which course of conduct relates must qualify as
"religion" rather than philosophy or science or personal preference, course of
conduct must qualify as expression of that religion and not just activity that
religious people happen to be doing, and religious expression must not inflict
so much harm that there is compelling state interest in discouraging practice
which outweighs values served by freedom of religion. U.S.C.A. Const.Amend.
1.

[10] CONSTITUTIONAL LAW
Evidence before trial court justified judge's determination that Scientology
qualifies as religion within meaning of freedom of religion clauses of Federal
and California Constitutions. U.S.C.A. Const.Amend. 1; West's Ann.Cal.
Const. Art. 1, s 4.

[11] CONSTITUTIONAL LAW
Assuming that retributive conduct known as "fair game" was core practice of
religious organization, it did not qualify as "religious practice" for
constitutional protection; former member did not suffer his economic harm as
unintended byproduct of former religionists' practice of refusing to socialize
with him but instead was bankrupted by campaign his former religionists
carefully designed with specific intent to create financial ruin. U.S.C.A.
Const.Amend. 1.

[12] CONSTITUTIONAL LAW
"Auditing" involving one-on-one dialogue between religious organization's
auditor and student is constitutionally protected religious practice if
conducted in noncoercive environment, but is not protected where conducted
under threat of economic, psychological and political retribution; voluntary
"auditing" is similar to techniques other religions use to motivate "sinners"
to change behaviors.

[13] CONSTITUTIONAL LAW
"Auditing" as practiced against religious organization's former member was
coerced and thus was not protected religious activity under First Amendment;
church member was threatened with accumulated debt of between $10,000 and
$50,000 under organization's "freeloader debt" policy if he left organization,
as well as financial ruin in his business under "fair game" policy and further,
some auditing was accepted by former member under threat of physical
coercion. U.S.C.A. Const.Amend. 1.

[14] CONSTITUTIONAL LAW
Practice of "disconnect" of religious organization which required member to
cease contact with his family, including wife and parents, was not protected
religious practice given coercive environment imposed upon member;
"disconnect" policy was imposed on member by organization with knowledge that
member was psychologically susceptible and would suffer severe emotional injury
as result. U.S.C.A. Const.Amend. 1.

[15] CONSTITUTIONAL LAW
Religious organization's improper disclosure of information which former member
gave during confidential religious sessions was not religious expression
immunized from liability by Constitution. U.S.C.A. Const.Amend. 1.

[16] DAMAGES
Former member of religious organization could not prevail in action for
negligent infliction of emotional injury against organization; organization
owed no duty to members or former members with respect to negligent acts which
might inadvertently cause psychological or economic injury.

[17] DAMAGES
Religious organization was not entitled to jury instruction which restated
elements of former member's cause of action for intentional infliction of
emotional distress or outrageous conduct with slant favoring organization's
position by implication that jury was to disregard evidence of organization's
acts which did not fit precisely under courses of conduct as they defined
them; some of evidence introduced at trial related to acts relevant to issues
of organization's state of mind and whether former member was voluntarily
participating in organization's practices or was doing so within coercive
environment and thus, instruction as requested would have been misleading.

[18] TRIAL
Religious organization was not entitled to jury instruction requiring jury to
disregard evidence presented which was relevant to nonsuited fraud counts in
action brought by former member which alleged intentional and negligent
infliction of emotional injury; requested instruction was stated in overbroad
terms and unduly slanted in organization's direction which could have misled
jury into believing that it must disregard evidence which provided
context for intentional infliction count or which went to presence or
absence of coercion and organization's state of mind.

[19] DAMAGES
Relevancy of evidence regarding actions religious organization took toward
third persons was not overwhelmed by prejudicial effect and thus admission of
such evidence was proper in former member's action alleging intentional and
negligent infliction of emotional injury; evidence was highly relevant to show
network of sanctions and coercive influences with which organization had
surrounded former member.

[20] DAMAGES
Compensatory damage award in amount of $5,000,000 in favor of former member of
religious organization against organization was excessive, and evidence only
justified award of $500,000; former member's psychological injury although
permanent and severe was not totally disabling and organization's conduct only
aggravated preexisting psychological condition but did not create it.

[21] APPEAL AND ERROR
In reviewing punitive damages award, appellate court applies standard similar
to that used in reviewing compensatory damages; court inquires whether after
reviewing entire record in light most favorable to judgment, award was result
of passion or prejudice.

[21] DAMAGES
In reviewing punitive damages award, appellate court applies standard similar
to that used in reviewing compensatory damages; court inquires whether after
reviewing entire record in light most favorable to judgment, award was result
of passion or prejudice.

[22] DAMAGES
Factors to be considered in reviewing propriety of punitive damage award
include degree of reprehensibility of defendant's conduct, relationship between
amount of award and actual harm suffered, and relationship of punitive damages
to defendant's net worth.

[23] DAMAGES
Punitive damage award in amount of $25 million against religious organization
for intentional infliction of emotional distress upon former member was
excessive and required reduction to $2 million; award constituted 150% of
organization's net worth and conduct by organization did not reach level of
outrageousness to justify such award.
*877 **334 Rabinowitz, Boudin, Standard, Krinsky & Lieberman and Eric M.
Lieberman and Terry Gross, New York City, Lenske, Lenske & Heller and Lawrence
E. Heller, Woodland Hills, and Michael Lee Hertzberg, New York City, for
defendant and appellant.
Greene, O'Reilly, Broillet, Paul, Simon, McMillan, Wheeler & Rosenberg, Los
Angeles, and Charles B. O'Reilly, Santa Monica, for plaintiff and respondent.
Boothby, Ziprick & Yingst and William F. Ziprick, San Bernardino, Lee Boothby,
Washington, D.C., and James M. Parker, Newport Beach, as amicus curiae on
behalf of defendant and appellant.

JOHNSON, Associate Justice.
This appeal arises after a jury awarded $30 million in compensatory and
punitive damages to a former member of the Church of Scientology (the Church).
The complaint alleged *878 appellants intentionally and negligently
inflicted severe emotional injury on respondent through certain practices,
including "auditing," "disconnect," and "fair game." Since the trial court
granted summary adjudication that Scientology is a religion and " auditing" is a
religious practice, the trial proceeded under the assumption they were. We
conclude there was substantial evidence to support a factual finding the
"auditing," as well as other practices in this case, were conducted in a
coercive environment. Thus, none of them qualified as "voluntary religious
practices" entitled to constitutional protection under the First Amendment
religious freedom guarantees. At the same time, we conclude both the
compensatory and punitive damages the jury awarded in this case are excessive.
Consequently, we modify the judgment to reduce both of these damage awards.
**335 FACTS AND PROCEEDINGS BELOW
Construing the facts most favorably to the judgment, as we must, respondent
Larry Wollersheim was an incipient manic-depressive for most of his life.
Appellants Scientology and its leaders were aware of Wollersheim's
susceptibility to this mental disorder. What appellants did to him during and
after his years in Scientology aggravated Wollersheim's mental condition,
driving him into deep depressive episodes and causing him severe mental
anguish. Furthermore, Scientology engaged in a practice of retribution and
threatened retribution--often called "fair game"--against members who left or
otherwise posed a threat to the organization. This practice coerced
Wollersheim into continued participation in the other practices of Scientology
which were harming him emotionally.
Wollersheim first became acquainted with Scientology in early 1969 when he
attended a lecture at the "Church of Scientology of San Francisco." During the
next few months he completed some basic courses at the San Francisco
institution. He then returned to his home state of Wisconsin and did not
resume his scientology training for almost two years.
When Wollersheim did start again it was at the appellant, Church of
Scientology of California, headquartered in Los Angeles. From 1972 through
1979 Wollersheim underwent "auditing" at both the basic and advanced levels.
In 1973 he worked several months as a staff member at the Church of Scientology
Celebrity Center located in Los Angeles. In 1974, despite his repeated
objections, Wollersheim was persuaded to participate in auditing aboard a ship
maintained by Scientology. While on the ship, Wollersheim was forced to
undergo a strenuous regime which began around 6:00 A.M. and continued until
1:00 the next morning. Further, Wollersheim and others were forced to sleep
nine deep in the ship's hold. During his six weeks under these conditions,
Wollersheim lost 15 pounds.
*879 Wollersheim attempted to escape from the ship because he felt he "was
dying and losing [his] mind." His escape was thwarted by Scientology members
who seized Wollersheim and held him captive until he agreed to remain and
continue with the auditing and other religious practices taking place on the
vessel. One of the psychiatric witnesses testified Wollersheim's experience on
the ship was one of five cataclysmic events underlying the diagnosis of his
mental illness and its cause.
At another stage Scientology auditors convinced him to "disconnect" from
his wife and his parents and other family members because they had expressed
concerns about Scientology and Wollersheim's continued membership.
"Disconnect" meant he was no longer to have any contact with his family.
There also was evidence of a practice called "freeloader debt." " Freeloader
debt" was accumulated when a staff member received Church courses, training or
auditing at a reduced rate. If the member later chose to leave, he or she was
presented with a bill for the difference between the full price normally
charged to the public and the price originally charged to the member.
Appellants maintained a "freeloader debt" account for Wollersheim.
During his years with Scientology Wollersheim also started and operated
several businesses. The most successful was the last, a service which took and
printed photographic portraits. Most of the employees and many of the
customers of this business were Scientologists.
By 1979, Wollersheim's mental condition worsened to the point he actively
contemplated suicide. Wollersheim began experiencing personality changes and
pain. When the Church learned of Wollersheim's condition, Wollersheim was sent
to the Flag Land Base for "repair."
During auditing at Flag Land Base, Wollersheim's mental state deteriorated
further. He fled the base and wandered the streets. A guardian later arranged
to meet Wollersheim. At that meeting, the guardian told Wollersheim he was
prohibited from ever speaking of his problems with a priest, a doctor or a
psychiatrist.
Ultimately Wollersheim became so convinced auditing was causing him
psychiatric **336 problems he was willing to risk becoming a target of
"freeloader debt" and "fair game." Evidence was introduced that, at least
during the time relevant to Wollersheim's case, "fair game" was a practice of
retribution Scientology threatened to inflict on "suppressives," which included
people who left the organization or anyone who could pose a threat to the
*880 organization. Once someone was identified as a "suppressive," all
Scientologists were authorized to do anything to "neutralize" that individual--
economically, politically, and psychologically.
After Wollersheim left the organization Scientology leaders initiated a " fair
game" campaign which among other things was calculated to destroy Wollersheim's
photography enterprise. They instructed some Scientology members to leave
Wollersheim's employ, told others not to place any new orders with him and to
renege on bills they owed on previous purchases from the business. This
strategy shortly drove Wollersheim's photography business into bankruptcy. His
mental condition deteriorated further and he ended up under psychiatric care.
Wollersheim thereafter filed this lawsuit alleging fraud, intentional
infliction of emotional injury, and negligent infliction of emotional injury.
At the law-and-motion stage, a trial court granted summary adjudication on two
vital questions. It ruled Scientology is a religion and "auditing" is a
religious practice of that religion.
During trial, Wollersheim's experts testified Scientology's "auditing"
and "disconnect" practices constituted "brain-washing" and "thought reform"
akin to what the Chinese and North Koreans practiced on American prisoners of
war. They also testified this "brain-washing" aggravated Wollersheim's bipolar
manic depressive personality and caused his mental illness. Other testimony
established Scientology is a hierarchical organization which exhibits near
paranoid attitudes toward certain institutions and individuals--in particular,
the government, mental health professions, disaffected members and others who
criticize the organization or its leadership. Evidence also was introduced
detailing Scientology's retribution policy, sometimes called "fair game."
After the evidence was heard, the trial judge dismissed the fraud count but
allowed both the intentional and negligent infliction of emotional injury
counts to go to the jury. The jury, in turn, returned a general verdict in
favor of plaintiff on both counts. It awarded $5 million in compensatory
damages and $25 million in punitive damages. The motion for new trial was
denied and appellants filed a timely appeal.
DISCUSSION
Appellants raise a broad spectrum of issues all the way from a technical
statute of limitations defense to a fundamental constitutional challenge to
this entire species of claims against Scientology. If the narrower grounds of
appeal had merit and disposed of the case we could avoid confronting the
*881 difficult constitutional questions. But since they do not we must
consider Scientology's religious freedom claims.
I. THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT WOLLERSHEIM'S CLAIM FOR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The cause of action for intentional infliction of emotional injury formed the
centerpiece of the case which went to the jury. This claim actually cumulates
four courses of conduct which together allegedly inflicted severe emotional
damage on the psychologically weak Wollersheim. These courses of conduct
are: (1) subjecting Wollersheim to forms of "auditing" which aggravated his
predisposition to bipolar mania-depression; (2) psychologically coercing him
to "disconnect" from his family; (3) "disclosing personal information"
Wollersheim revealed during auditing under a mantle of confidentiality; and,
(4) conducting a retributive campaign ("fair game") against Wollersheim and
particularly against his business enterprise.
[1] The tort of intentional infliction of emotional distress was created to
punish conduct " 'exceeding all bounds usually tolerated by a decent society,
of a nature which is especially calculated to cause, and **337 does cause,
mental distress.' " (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, 160
Cal.Rptr. 141, 603 P.2d 58.) A prima facie case requires: (1) outrageous
conduct by the defendant; (2) an intention by the defendant to cause, or the
reckless disregard of the probability of causing, emotional distress; (3)
severe emotional distress; and (4) an actual and proximate causation of the
emotional distress. (Nally v. Grace Community Church (1988) 47 Cal.3d 278,
300, 253 Cal.Rptr. 97, 763 P.2d 948.)
"Behavior may be considered outrageous if a defendant (1) abuses a
relation or position which gives him power to damage the plaintiff's
interest; (2) knows the plaintiff is susceptible to injuries through mental
distress; or (3) acts intentionally or unreasonably with the recognition that
the acts are likely to result in illness through mental distress." (Agarwal
v. Johnson, supra, 25 Cal.3d at p. 946, 160 Cal.Rptr. 141, 603 P.2d 58.)
[2] There is substantial evidence to support the jury's finding on this
theory. First, the Church's conduct was manifestly outrageous. Using its
position as his religious leader, the Church and its agents coerced Wollersheim
into continuing "auditing" although his sanity was repeatedly threatened by
this practice. (See pp. 344-346, infra.) Wollersheim was compelled to abandon
his wife and his family through the policy of disconnect. When his mental
illness reached such a level he actively planned his suicide, he was
*882 forbidden to seek professional help. Finally, when Wollersheim was
able to leave the Church, it subjected him to financial ruin through its policy
of "fair game".
Any one of these acts exceeds the "bounds usually tolerated by a decent
society," so as to constitute outrageous conduct. In aggregate, there can be
no question this conduct warrants liability unless it is privileged as
constitutionally protected religious activity. (See pp. 338-340, infra.)
Second, the Church's actions, if not wholly calculated to cause emotional
distress, unquestionably constituted reckless disregard for the likelihood of
causing emotional distress. The policy of fair game, by its nature, was
intended to punish the person who dared to leave the Church. Here, the Church
actively encouraged its members to destroy Wollersheim's business.
Further, by physically restraining Wollersheim from leaving the Church's ship,
and subjecting him to further auditing despite his protests, the Church ignored
Wollersheim's emotional state and callously compelled him to continue in a
practice known to cause him emotional distress.
Third, Wollersheim suffered severe emotional distress. Indeed, his distress
was such that he actively considered suicide and suffered such psychiatric
injury as to require prolonged professional therapy. (See Fletcher v.
Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397, 89 Cal.Rptr. 78
[severe emotional distress "may consist of any highly unpleasant mental
reaction such as fright, grief, shame, humiliation, embarrassment, anger,
chagrin, disappointment or worry"].)
Finally, there is substantial evidence the Church's conduct proximately caused
the severe emotional distress. Wollersheim's bankruptcy and resulting mental
distress was the direct result of the Church's declaration that he was fair
game. Additionally, according to the psychiatric testimony auditing and
disconnect substantially aggravated his mental illness and triggered several
severe depressive episodes.
In sum, there is ample evidence to support the jury's verdict on Wollersheim's
claim for intentional infliction of emotional distress. This, however, does
not conclude our inquiry. As we discuss below, Wollersheim's action may
nonetheless be barred if we conclude the Church's conduct was protected under
the free exercise clause of the First Amendment.
*883 II. CONSTITUTIONAL RELIGIOUS FREEDOM GUARANTEES DO NOT IMMUNIZE
SCIENTOLOGY FROM LIABILITY FOR ANY OF THE ACTIONS ON WHICH WOLLERSHEIM'S
INTENTIONAL INFLICTION OF EMOTIONAL INJURY CAUSE OF ACTION IS BASED
Scientology asserts all four courses of conduct comprising the
intentional infliction **338 claim are forms of religious expression
protected by the Freedom of Religion clauses of the United States and
California Constitutions. We conclude some would not be protected religious
activity even if Wollersheim freely participated. We further conclude none of
these courses of conduct qualified as protected religious activity in
Wollersheim's case. Here they occurred in a coercive atmosphere appellants
created through threats of retribution against those who would leave the
organization. To explain our conclusions it is necessary to examine the
parameters and rationale of the religious freedom provisions in some depth.
A. The Basic Principles of the "Free Exercise" Clause
Religious freedom is guaranteed American citizens in just 16 words in the
First Amendment. "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; ..." (U.S. Const.,
Amend. I, italics added. [FN1])

FN1. All discussion in this opinion as to the freedom of religion
provisions of the U.S. Constitution applies also to appellants' claims
under article I, section 4 of the California Constitution which
guarantees "[f]ree exercise and enjoyment of religion without
discrimination or preference."

When it was adopted, the First Amendment only applied to the federal
government, not the states. (U.S. Const., 1st Amend. ["Congress shall make
no law ..."], emphasis added; see Permoli v. First Municipality (1845) 44
U.S. (3 How.) 589, 609, 11 L.Ed. 739.) However, following ratification of the
Fourteenth Amendment, the First Amendment protections became enforceable
against the states via the Fourteenth Amendment's due process clause.
(California v. Grace Brethren Church (1982) 457 U.S. 393, 396 fn. 1, 102
S.Ct. 2498, 2501 fn. 1, 73 L.Ed.2d 93; Everson v. Board of Education (1947)
330 U.S. 1, 8, 67 S.Ct. 504, 508, 91 L.Ed. 711.)
"[T]he application of tort law to activities of a church or its adherents in
their furtherance of their religious belief is an exercise of state power.
When the imposition of liability would result in the abridgement of the right
to free exercise of religious beliefs, recovery in tort is barred." (Paul
v. Watchtower Bible & Tract Soc. of New York (9th Cir.1987) 819 F.2d 875, 880;
accord Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1114, 252 Cal.Rptr.
122, 762 P.2d 46 ["judicial sanctioning of tort recovery constitutes *884
state action sufficient to invoke the same constitutional protections
applicable to statutes and other legislative actions"]; see New York Times
Co. v. Sullivan (1964) 376 U.S. 254, 277, 84 S.Ct. 710, 724, 11 L.Ed.2d 686.)
[3] As can be seen, the First Amendment creates two very different
protections. The "establishment clause"--actually an "anti- establishment
clause"--guarantees us the government will not use its resources to impose
religion on us. The "free exercise clause," on the other hand, guarantees us
government will not prevent its citizens from pursuing any religion we choose.
[4] The "establishment clause" comes into play when a government policy has
the effect of promoting religion--as by financing religious schools or
requiring religious prayers in public schools, and the like. These policies
violate the establishment clause unless they survive a three-part test. They
must have a secular purpose. Their primary effects must be ones which neither
advance nor inhibit religion. And they must avoid any excessive entanglements
with religion. (Lemon v. Kurtzman (1971) 403 U.S. 602, 612-613, 91 S.Ct.
2105, 2111-2112, 29 L.Ed.2d 745; see also Committee for Public Education v.
Nyquist (1973) 413 U.S. 756, 773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948;
Abington School Dist. v. Schempp (1963) 374 U.S. 203, 222, 83 S.Ct. 1560,
1571, 10 L.Ed.2d 844.) The "free exercise clause," in contrast to the
"establishment clause," was adopted without debate or comment when the First
Congress deliberated the Bill of Rights. (Malbin, Religion and Politics: The
Intentions of the Authors of the First Amendment (1976).) Thus the courts have
turned to other writings by those responsible for the Bill of **339 Rights,
especially James Madison and Thomas Jefferson, to divine the meaning of " free
exercise of religion."
[5][6] The subsequent cases interpreting these four words make it
clear that while the free exercise clause provides absolute protection for a
person's religious beliefs, it provides only limited protection for the
expression of those beliefs and especially actions based on those beliefs.
(Cantwell v. Connecticut (1940) 310 U.S. 296, 303-304, 60 S.Ct. 900, 903-
904, 84 L.Ed. 1213.) Freedom of belief is absolutely guaranteed, freedom of
action is not. Thus government cannot constitutionally burden any belief no
matter how outlandish or dangerous. But in certain circumstances it can burden
an expression of belief which adversely affects significant societal
interests. To do so, the burden on belief must satisfy a four-part test:
First, the government must be seeking to further an important--and some
opinions suggest a compelling--state interest. Secondly, the burden on
expression must be essential to further this state interest. Thirdly, the type
and level of burden imposed must be the minimum required to achieve the
*885 state interest. Finally, the measure imposing the burden must apply to
everyone, not merely to those who have a religious belief; that is, it may not
discriminate against religion.
A straightforward exposition of three prongs of this test is found in
United States v. Lee (1981) 455 U.S. 252, 257-258, 102 S.Ct. 1051, 1055-
1056, 71 L.Ed.2d 127 where the Supreme Court held: "The state may justify a
limitation on religious liberty by showing that it is essential to accomplish
an overriding governmental interest. (Citations omitted.)" All four are
mentioned in Braunfeld v. Brown (1961) 366 U.S. 599, 607, 81 S.Ct. 1144,
1148, 6 L.Ed.2d 563: "If the purpose or effect of a law is to impede the
observance of one or all religions or is to discriminate invidiously between
religions, that law is constitutionally invalid.... But if the State regulates
conduct by enacting a general law within its power, the purpose and effect of
which is to advance the State's secular goals, the statute is valid despite its
indirect burden on religious observance unless the State may accomplish its
purpose by means which do not impose such a burden." (See also Thomas v.
Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 717-718, 101 S.Ct. 1425,
1431-1432, 67 L.Ed.2d 624; Wisconsin v. Yoder (1972) 406 U.S. 205, 220, 92
S.Ct. 1526, 1535, 32 L.Ed.2d 15; Gillette v. United States (1971) 401 U.S.
437, 462, 91 S.Ct. 828, 842, 28 L.Ed.2d 168; Sherbert v. Verner (1963) 374
U.S. 398, 402-403, 83 S.Ct. 1790, 1793-1794, 10 L.Ed.2d 965; Cantwell v.
Connecticut, supra, 310 U.S. at pp. 304-305, 60 S.Ct. at pp. 903-904.)
[7] A review of the Supreme Court's "free exercise" rulings also makes it
apparent the four critical factors are interrelated. Roughly speaking, the
heavier the burden the government imposes on the expression of belief and the
more significant the particular form of expression which is burdened, the more
important the state interest must be. Or to put it the other way around, the
more important the interest the state seeks to further, the heavier the burden
it can constitutionally impose on the more important forms of expressing
religious belief. Thus, only the most compelling of state interest--such as
the preservation of life or of the state itself--will justify an outright ban
on an important method of expressing a religious belief. (See, e.g.,
Reynolds v. United States (1878) 98 U.S. 145, 164, 25 L.Ed. 244 [polygamy
can be outlawed even though a central religious tenet of the Mormon religion
because it "has always been odious among the northern and western nations of
Europe, ... and from the earliest history of England has been treated as an
offence against society." [Italics added.]]; Prince v. Massachusetts
(1943) 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 [parents can be
prohibited from allowing their children to distribute religious literature even
though this is a religious duty required in order to avoid "everlasting
destruction at Armageddon" where necessary to protect *886 the health and
safety of youth]; Jacobson v. Massachusetts (1904) 197 U.S. 11, 26, 25
S.Ct. 358, 361, 49 L.Ed. 643 [adults and children can be compelled to be
vaccinated **340 for communicable diseases even though their religious
beliefs oppose vaccination because as was observed in Prince v.
Massachusetts, supra, 321 U.S. at pp. 166-167, 64 S.Ct. at pp. 442-443, " [T]he
right to practice religion freely does not include liberty to expose the
community or the child to communicable disease or the latter to ill health or
death"].)
[8] But a less significant state interest may be enough where the
burden is less direct or the form of expression less central to the exercise of
the particular religion. (See, e.g., Goldman v. Weinberger (1986) 475 U.S.
503, 509-510, 106 S.Ct. 1310, 1314-1315, 89 L.Ed.2d 478 where the military's
apparently rather marginal interest in absolutely uniform attire was enough to
justify an outright ban against a Jewish officer's apparently rather marginal
form of religious expression in wearing a yarmulke [a religious cap] indoors.)
In Bowen v. Roy (1986) 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735,
disapproved on other grounds in Hobbie v. Unemployment Appeals Commission
(1987) 480 U.S. 136, 141, 107 S.Ct. 1046, 1049, 94 L.Ed.2d 190, the U.S.
Supreme Court found the Federal government's interest in administrative
convenience in preventing fraud in a benefit program was enough to justify the
minimal burden of denying benefits to those who because of religious beliefs
refuse to obtain and reveal social security numbers. Braunfeld v. Brown,
supra, 366 U.S. 599, 605, 81 S.Ct. 1144, 1146 [governmental interest in
prohibiting economic activity on Sundays is enough to justify imposing the
burden of an economic loss on those orthodox Jews who choose to exercise their
religious belief that they not work on Saturdays and thus lose two rather than
only one day's opportunity to earn money. "[T]he case before us ... does not
make unlawful any religious practices of appellants; the Sunday law simply
regulates a secular activity and, as applied to appellants, operates so as to
make the practice of their religious beliefs more expensive " ], (italics
added.)
[9] We now apply the above principles to the four courses of conduct alleged
in Wollersheim's intentional infliction of emotional injury cause of action.
To be entitled to constitutional protections under the Freedom of Religion
clauses any course of conduct must satisfy three requirements. First, the
system of thought to which the course of conduct relates must qualify as a
"religion" not a philosophy or science or personal preference. Thus, it is
unlikely a psychiatrist could successfully shield himself from malpractice by
asserting he was merely practicing the "religion" of psychotherapy and
following the "religious" teachings of Freud and Jung. Secondly, the course of
conduct must qualify as an expression of that religion and not just an activity
that religious people happen to be doing. Thus, driving a *887 Sunday
School bus does not constitute a religious practice merely because the bus is
owned by a religion, the driver is an ordained minister of the religion, and
the bus is taking church members to a religious ceremony. (See Malloy v.
Fong (1951) 37 Cal.2d 356, 373, 232 P.2d 241 [religious organization held
liable for employee's negligent driving]; Meyers v. S.W. Reg. Con. Ass'n.
of Seventh Day Adv. (1956) 230 La. 310, 88 So.2d 381, 386 [First Amendment does
not bar minister's workers' compensation action against church for injuries
arising from auto accident which occurred when minister was traveling to church
conference].) And, thirdly, the religious expression must not inflict so much
harm that there is a compelling state interest in discouraging the practice
which outweighs the values served by freedom of religion. Thus, the fact
polygamy was a central practice of the Mormon religion was not enough to
qualify it for constitutional protection from state governments which desired
to ban this practice.
This means we must first ask three questions as to each of the four
courses of conduct Wollersheim alleged against Scientology. (1) Does
Scientology qualify as a religion? (2) If so, is the course of conduct at
issue an expression of the religion of Scientology? (3) If it is, does the
public nevertheless have a compelling secular interest in discouraging this
course of conduct even though it qualifies as a religious **341 expression of
the Scientology religion? After answering these three questions, however, the
special circumstances of this case require us to ask a fourth. Did Wollersheim
participate in this course of conduct voluntarily or did Scientology coerce his
continued participation through the threat of serious sanctions if he left the
religion?
The threshold question for all four courses of conduct is whether Scientology
qualifies as a religion. As will be recalled, at the law-and-motion stage, a
judge granted summary adjudication on this issue. That court ruled Scientology
indeed was a religion. And at the trial stage, another judge reinforced this
ruling by submitting the case to the jury with an instruction that Scientology
is a religion.
[10] As a result of the law-and-motion judge's decision on this question,
evidence was not introduced at trial on the specific issue of whether
Scientology is a religion. Given that vacuum of information, it would be
presumptuous of this court to attempt a definitive decision on this vital
question. We note other appellate courts have observed this remains a very
live and interesting question. (See Founding Church of Scientology v.
United States (D.C.Cir.1969) 409 F.2d 1146, 1160-1161; Founding Church of
Scientology v. Webster (D.C.Cir.1986) 802 F.2d 1448, 1451 ["whether Scientology
is a religious organization, a for-profit private enterprise, or something far
more *888 extraordinary [is] an intriguing question that this suit does not
call upon us to examine...."].) However, we have no occasion to go beyond a
review of the summary adjudication decision the trial court reached at the law-
and-motion stage. In reviewing this decision, we find that on the evidence
before the court the judge properly ruled Scientology qualifies as a religion
within the meaning of the Freedom of Religion Clauses of the United States and
California Constitutions.
This brings us to the remaining three questions as to each of the four courses
of conduct: Is the conduct a "religious practice"? If so, is there a
compelling secular interest in requiring compensation for the injuries
attributable to that practice? If the constitutional immunity is not
overridden by a compelling state interest in the ordinary situation, is it
nevertheless stripped away here because the religion coerced the injured member
into continuing his participation in the practice?
B. Even Assuming the Retributive Conduct Sometimes Called "Fair Game" Is a Core
Practice of Scientology It Does Not Qualify for Constitutional Protection
[11] As we have seen, not every religious expression is worthy of
constitutional protection. To illustrate, centuries ago the inquisition was
one of the core religious practices of the Christian religion in Europe. This
religious practice involved torture and execution of heretics and miscreants.
(See generally Peters, Inquisition (1988); Lea, The Inquisition of the Middle
Ages (1961).) Yet should any church seek to resurrect the inquisition in this
country under a claim of free religious expression, can anyone doubt the
constitutional authority of an American government to halt the torture and
executions? And can anyone seriously question the right of the victims of our
hypothetical modern day inquisition to sue their tormentors for any injuries--
physical or psychological--they sustained?
We do not mean to suggest Scientology's retributive program as described in
the evidence of this case represented a full-scale modern day "inquisition."
Nevertheless, there are some parallels in purpose and effect. "Fair game" like
the "inquisition" targeted "heretics" who threatened the dogma and
institutional integrity of the mother church. Once "proven" to be a "heretic,"
an individual was to be neutralized. In medieval times neutralization often
meant incarceration, torture, and death. (Peters, Inquisition, supra, pp.
57, 65-67, 87, 92-94, 98, 117-118, 133-134; Lea, The Inquisition of the Middle
Ages, supra, pp. 181, 193-202, 232-236, 250-264, 828-829.) As described in
the evidence at this trial the "fair game" policy neutralized the "heretic" by
stripping this person of his or her economic, political and psychological
power. (See, e.g., Allard v. Church of Scientology **342 *889 (1976)
58 Cal.App.3d 439, 444, 129 Cal.Rptr. 797 [former church member falsely accused
by Church of grand theft as part of "fair game" policy, subjecting member to
arrest and imprisonment].)
In the instant case, at least, the prime focus of the "fair game" campaign was
against the "heretic" Wollersheim's economic interests. Substantial evidence
supports the inference Scientology set out to ruin Wollersheim's photography
enterprise. Scientologists who worked in the business were instructed to
resign immediately. Scientologists who were customers were told to stop
placing orders with the business. Most significantly, those who owed money for
previous orders were instructed to renege on their payments. Although these
payments actually were going to a factory not Wollersheim, the effect was to
deprive Wollersheim of the line of credit he needed to continue in business.
Appellants argue these "fair game" practices are protected religious
expression. They cite to a recent Ninth Circuit case upholding the
constitutional right of the Jehovah's Witness Church and its members to " shun"
heretics from that religion even though the heretics suffer emotional injury as
a result. (Paul v. Watchtower Bible & Tract Soc. of New York, supra, 819
F.2d 875.) In this case a former Jehovah's Witness sued the church and certain
church leaders for injuries she claimed to have suffered when the church
ordered all other church members to "shun" her. In the Jehovah Witness
religion, "shunning" means church members are prohibited from having any
contact whatsoever with the former member. They are not to greet them or
conduct any business with them or socialize with them in any manner. Thus,
there was a clear connection between the religious practice of " shunning" and
Ms. Paul's emotional injuries. Nonetheless, the trial court dismissed her
case. The Ninth Circuit affirmed in an opinion which expressly held " shunning"
is a constitutionally protected religious practice. "[T]he defendants, ...
possess an affirmative defense of privilege--a defense that permits them to
engage in the practice of shunning pursuant to their religious beliefs without
incurring tort liability." (Id. at p. 879.)
We first note another appellate court has taken the opposite view on
the constitutionality of "shunning." (Bear v. Reformed Mennonite Church
(1975) 462 Pa. 330, 341 A.2d 105.) In this case the Pennsylvania Supreme Court
confronted a situation similar to Paul v. Watchtower Bible & Tract Soc. of
New York. The plaintiff was a former member of the Mennonite Church. He was
excommunicated for criticizing the church. Church leaders ordered that all
members must "shun" the plaintiff. As a result, both his business and family
collapsed. The appellate court reversed the trial court's dismissal of the
action, holding: "In our opinion, the complaint, ... raises issues that the
'shunning' practice of appellee church and the conduct of the
*890 individuals may be an excessive interference within areas of 'paramount
state concern,' i.e., the maintenance of marriage and family relationship,
alienation of affection, and the tortious interference with a business
relationship, which the courts of this Commonwealth may have authority to
regulate, even in light of the 'Establishment' and 'Free Exercise' clauses of
the First Amendment." (Bear v. Reformed Mennonite Church, supra, 341 A.2d
at p. 107, emphasis in original.)
We observe the California Supreme Court has cited with apparent approval the
viewpoint on "shunning" expressed in Bear v. Mennonite Church, supra, rather
than the one adopted in Paul v. Watchtower Bible & Tract Soc. of New York,
supra. (See Molko v. Holy Spirit Assn., supra, 46 Cal.3d 1092, 1114, 252
Cal.Rptr. 122, 762 P.2d 46.) But even were Paul v. Watchtower Bible & Tract
Soc. of New York the law of this jurisdiction it would not support a
constitutional shield for Scientology's retribution program. In the instant
case Scientology went far beyond the social "shunning" of its heretic,
Wollersheim. Substantial evidence supports the conclusion Scientology leaders
made the deliberate decision to ruin Wollersheim economically and possibly
psychologically. Unlike the plaintiff in Paul v. Watchtower Bible & Tract
Soc. of New York, Wollersheim did **343 not suffer his economic harm as an
unintended byproduct of his former religionists' practice of refusing to
socialize with him any more. Instead he was bankrupted by a campaign his
former religionists carefully designed with the specific intent it bankrupt
him. Nor was this campaign limited to means which are arguably legal such as
refusing to continue working at Wollersheim's business or to purchase his
services or products. Instead the campaign featured a concerted practice of
refusing to honor legal obligations Scientologists owed Wollersheim for
services and products they already had purchased.
If the Biblical commandment to render unto Caesar what is Caesar's and to
render unto God what is God's has any meaning in the modern day it is here.
Nothing in Paul v. Watchtower Bible & Tract Soc. of New York or any other
case we have been able to locate even implies a religion is entitled to
constitutional protection for a campaign deliberately designed to financially
ruin anyone--whether a member or non-member of that religion. Nor have we
found any cases suggesting the free exercise clause can justify a refusal to
honor financial obligations the state considers binding and legally
enforceable. One can only imagine the utter chaos that could overtake our
economy if people who owed money to others were entitled to assert a freedom of
religion defense to repayment of those debts. It is not unlikely the courts
would soon be flooded with debtors who claimed their religion prohibited them
from paying money they owed to others.
We are not certain a deliberate campaign to financially ruin a former
member or the dishonoring of debts owed that member qualify as "religious
*891 practices" of Scientology. But if they do, we have no problem
concluding the state has a compelling secular interest in discouraging these
practices. (See pp. 338-340, supra.) Accordingly, we hold the Freedom of
Religion guarantees of the U.S. and California Constitutions do not immunize
these practices from civil liability for any injuries they cause to " targets"
such as Wollersheim.
C. "Auditing" Is a Constitutionally Protected Religious Practice Where It Is
Conducted in a Non-coercive Environment But Is Not Protected Where Conducted
Under a Threat of Economic, Psychological and Political Retribution as It Was
Here
[12] Auditing is a process of one-on-one dialogue between a Scientology
"auditor" and a Scientology student. The student ordinarily is connected to a
crude lie detector, a so-called "E-Meter." The auditor asks probing questions
and notes the student's reactions as registered on the E-Meter.
Through the questions, answers, and E-meter readings, the auditor seeks to
identify the student's "n-grams" or "engrams." These " engrams" are negative
feelings, attitudes, or incidents that act as blockages preventing people from
realizing their full potential and living life to the fullest. Since
Scientology holds the view people actually have lived many past lives over
millions of years they carry "engrams" accumulated during those past lives as
well as some from their present ones. Once the auditor identifies an " engram"
the auditor and the student work to surface and eliminate it. The goal is to
identify and eliminate all the student's engrams so he or she can achieve the
state of "clear." Students can pass through several levels of " auditing" en
route to ever higher states of "clear."
Auditing performs a similar function for Scientology as sermons and other
forms of mass persuasion do for many religions. In those religions, ministers,
priests or other clergy preach to the multitude in order to bring their
adherents into line with the religion's principles. Scientology instead
emphasizes a one-on-one approach--the "auditing" process--to accomplish the
same purpose.
At the law-and-motion stage, the trial court granted summary adjudication
that "auditing" is a "religious practice" of Scientology. Once again, our
review of the trial court decision reveals that on the basis of the evidence
before the court on that occasion, the ruling is correct. Thus for
**344 purposes of this appeal we find "auditing" qualifies as a " religious
practice" just as Scientology qualifies as a "religion."
Having found for purposes of this appeal that Scientology is a religion and
auditing is a religious practice, we must next ask whether the state
*892 has a "compelling interest" in awarding compensation for any harm
auditing may cause which outweighs the values served by the religious
expression guarantees of the constitution.
We first note we have already held there was substantial evidence to
support a jury finding that what happened during the "auditing" process, along
with Scientology's other conduct toward Wollersheim, caused this particular
adherent serious emotional injury. We further found substantial evidence
Scientology leaders were aware of Wollersheim's psychological weakness and yet
continued practices during auditing sessions which caused the kinds of
psychological stress that led to his mental breakdown. Thus, there is adequate
proof the religious practice of auditing caused real harm in this instance to
this individual and that appellants' outrageous conduct caused that harm.
Furthermore, there is sufficient evidence to support a conclusion that despite
their knowledge auditing was aggravating Wollersheim's serious psychological
problems appellants deliberately insisted he not seek help from professional
psychotherapists. None of this, however, means auditing represents such a
threat of harm to society that the state has a compelling interest in awarding
compensation which overcomes the values served by the religious expression
guarantees of the constitution.
To better understand why we conclude voluntary auditing may be entitled to
immunity from liability for the emotional injuries it causes, consider some
analogies. Assume Wollersheim were not a former Scientologist, but a former
follower of one of the scores of Christian denominations. Further assume he
sued on grounds a preacher's sermons filled him with such feelings of
inferiority and guilt his manic-depressive condition was aggravated to the same
degree Wollersheim contends auditing aggravated his mental illness in this
case. Or assume another Wollersheim sued another church for a similar
emotional injury on grounds his mental illness had been triggered by what a
cleric told him about his sins during a confession--or series of confessions.
It is one of the functions of many religions to "afflict the comfortable"--to
deliberately generate deep psychological discomfort as a means of motivating
"sinners" to stop "sinning." Whether by "hell fire and damnation" preaching,
"speaking in tongues," private chastising, or a host of subtle and not so
subtle techniques religion seeks to make us better people.
Many of these techniques are capable of inflicting emotional distress severe
enough that it is foreseeable some with psychiatric problems will " crack" or be
driven into a deep depression. But the constitution values the good religion
does for the many more than the psychological injury it may inflict on the
few. Thus, it cannot tolerate lawsuits which might chill religious practices--
such as auditing, "hell fire and damnation" preaching, *893 confessions, and
the like--where the only harm which occurs is emotional injury to the
psychologically weak.
[13] There is an element present in the instant case, however, that reduces
the religious value of the "auditing" practiced on Wollersheim and increases
its harm to the community. This is the element of coercion. Scientology,
unlike most other religions or organizations claiming a religious purpose, uses
various sanctions and the threat of sanctions to induce continued membership in
the Church and observance of its practices. These sanctions include "fair
game", "freeloader debt" and even physical restraint. There was nothing in the
evidence presented at this trial suggesting new recruits and members undergoing
lower-level "auditing" were subject to sanctions if they decided to leave. Nor
was there evidence these recruits or "lower level" auditors would be aware any
program of sanctions even existed and thus might be intimidated by it. But
there was evidence others, like Wollersheim, who rose **345 to higher levels
of auditing and especially those, like Wollersheim, who became staff members--
the rough equivalent of becoming a neophyte priest or minister--were aware of
these sanctions and what awaited them if they chose to "defect." Thus, their
continued participation in "auditing" and the other practices of Scientology
was not necessarily voluntary.
Wollersheim was familiar with the whole spectrum of sanctions and
indeed was the target of some during and after his affiliation with
Scientology. He first learned of one of these forms of retribution, "fair
game," in 1970. He also knew that, despite the Church's public rejection of
the fair game practice, it continued to use fair game against targeted ex-
Scientologists throughout the 1970's. Under Scientology's "fair game" policy,
someone who threatened Scientology by leaving the church "may be deprived of
property or injured by any means by a Scientologist.... [The targeted
defector] may be tricked, sued or lied to or destroyed."
Wollersheim feared "fair game" would be practiced against him if he refused
further auditing and left the Church of Scientology. As described in the
previous section, those fears proved to be accurate. Scientology leaders
indeed became very upset by his defection and retaliated against his business.
But "fair game" was not the only sanction which Scientology held over
Wollersheim's head during his years as an "upper level" auditor and occasional
staff member. Scientology also used a tactic called "freeloader debt" as a
means of coercing Wollersheim's continued participation in the church and
obedience to its practices. "Freeloader debt" was devised by Scientology
founder L. Ron Hubbard as a means of punishing members who, inter *894 alia,
chose to leave the Church or refused to disconnect from a suppressive person.
"Freeloader debt" was accumulated when a staff member received Church courses,
training or auditing at a reduced rate. The Church maintained separate records
which listed the discounts allowed. If the member later chose to leave, he or
she was presented with a bill for the difference between the full price
normally charged to the public and the price originally charged to the member.
[FN2] A person who stayed in the Church for five years could easily accumulate
a "freeloader debt" of between $10,000 and $50,000. Wollersheim was familiar
with the "freeloader debt" policy as well as the "fair game" policy. He also
knew the Church was recording the courses and auditing sessions he was
receiving at the discounted rate. The threat of facing that amount of debt
represented a powerful economic sanction acting to coerce continued
participation in auditing as the core religious practice of the Church of
Scientology.

FN2. During the 1970's a staff member was paid approximately $17 per week
for an expected 50 hours of work. In 1973, Wollersheim earned between $10
to $18 per week when he worked at the Celebrity Center as a staff member.
This salary was augmented by an occasional $10 bonus.

There also was evidence Wollersheim accepted some of his auditing under threat
of physical coercion. In 1974, despite his repeated objections, Wollersheim
was induced to participate in auditing aboard a ship Scientology maintained as
part of its Rehabilitation Project Force. The Church obtained Wollersheim's
attendance by using a technique dubbed "bait and badger." As the name
suggests, this tactic deployed any number of Church members against a
recalcitrant member who was resisting a Church order. They would alternately
promise the "bait" of some reward and "badger" him with verbal scare tactics.
In the instant case, five Scientologists "baited and badgered" Wollersheim
continuously for three weeks before he finally gave in and agreed to attend the
Rehabilitation Project Force.
But these verbal threats and psychological pressure tactics were only
the beginning of Wollersheim's ordeal. While on the ship, Wollersheim was
forced to undergo a strenuous regime which began around 6:00 A.M. and continued
until 1:00 the next morning. The regime included mornings of **346 menial
and repetitive cleaning of the ship followed by an afternoon of study or co-
auditing. The evenings were spent working and attending meetings or
conferences. Wollersheim and others were forced to sleep in the ship's hole.
A total of thirty people were stacked nine high in this hole without proper
ventilation. During his six weeks under these conditions, Wollersheim lost 15
pounds.
*895 Ultimately, Wollersheim felt he could bear the regime no longer. He
attempted to escape from the ship because as he testified later: "I was dying
and losing my mind." But his escape effort was discovered. Several
Scientology members seized Wollersheim and held him captive. They released him
only when he agreed to remain and continue with the auditing and other
"religious practices" taking place on the vessel.
One of the psychiatric witnesses testified that in her opinion Wollersheim's
experience on the ship was one of five cataclysmic events underlying her
diagnosis of his mental illness and its cause. As the psychiatrist reported,
following this incident, Wollersheim felt the Church "broke him." In any
event, this episode demonstrated the Church was willing to physically coerce
Wollersheim into continuing with his auditing. Moreover they were willing to
do so even when it was apparent this practice was causing him serious mental
distress and he preferred to cease or at least suspend this particular
religious practice. Not only was the particular series of auditing sessions on
the ship conducted under threat of physical compulsion, but the demonstrated
willingness to use physical coercion infected later auditing sessions. The
fact the Church was willing to use physical coercion on this occasion to compel
Wollersheim's continued participation in auditing added yet another element to
the coercive environment under which he took part in the auditing process.
There was substantial evidence here from which the jury could have concluded
Wollersheim was subjecting himself to auditing because of the coercive
environment with which Scientology had surrounded him. To leave the church or
to cease auditing he had to run the risk he would become a target of "fair
game", face an enormous burden of "freeloader debt", and even confront physical
restraint. A religious practice which takes place in the context of this level
of coercion has less religious value than one the recipient engages in
voluntarily. Even more significantly, it poses a greater threat to society to
have coerced religious practices inflicted on its citizens.
There are important analogies to Molko v. Holy Spirit Assn., supra, 46
Cal.3d 1092, 252 Cal.Rptr. 122, 762 P.2d 46. In Molko the California
Supreme Court held a religious organization could be held civilly liable for
using deception and fraud to seduce new recruits into the church. [FN3] In
that case the church concealed from new *896 recruits the fact they were
enlisting in the Unification Church. The plaintiffs argued the Unification
Church psychologically and physically coerced them into accepting the Church
and, therefore, they were unable to refuse formally joining once the Church's
true identity was revealed. (Id. at pp. 1108-1109, 252 Cal.Rptr. 122, 762
P.2d 46.) The Supreme Court agreed and further concluded there was no
constitutional infirmity to bar the action.

FN3. In Molko, two plaintiffs brought actions against the Unification
Church for, inter alia, fraud and intentional infliction of emotional
distress based upon the Unification Church's initial misrepresentations
concerning its religious affiliation. The Supreme Court held the First
Amendment did not bar the plaintiffs' claims to the extent they were based
upon actual coercive conduct by the Unification Church as opposed to merely
the threat of divine retribution should the plaintiffs leave.

"We conclude, ... that although liability for deceptive recruitment
practices imposes a marginal burden on the Church's free exercise of religion,
the burden is justified by the compelling state interest in protecting
individuals and families from the substantial threat to public safety, peace
and order posed by the fraudulent induction of unconsenting individuals into an
atmosphere of coercive persuasion." (Id. at p. 1118, 252 Cal.Rptr. 122, 762
P.2d 46.)
**347 Here Scientology used coercion--"fair game," "freeloader debt," and in
this instance, at least, physical restraint, along with the threat one or more
of these sanctions will be deployed--to prevent its members from leaving the
Church. This coercion is similar to the coercion found in Molko and far
different from the threats of divine retribution our Supreme Court held was
non-actionable. (Id. at pp. 1120, 1122, 252 Cal.Rptr. 122, 762 P.2d 46 ["To
the extent the claims are based merely on threats of divine retribution if [the
plaintiffs] left the church, they cannot stand"].) Instead, Scientology
promised--and in this case delivered--retribution in the here and now.
In O'Moore v. Driscoll (1933) 135 Cal.App. 770, 28 P.2d 438 cited with
approval by the California Supreme Court in Molko v. Holy Spirit Assn.,
supra, 46 Cal.3d 1092, 1114, 252 Cal.Rptr. 122, 762 P.2d 46, a Catholic priest
sued a Catholic organization and an ordained priest for false imprisonment when
the plaintiff was restrained in an asylum run by the Catholic Church to compel
his confession to criminal acts. The practice of confessing one's sins is an
established religious practice of the Catholic church. But that did not
immunize the defendants from liability for harm the plaintiff suffered where
the religious practice was imposed on him in a coercive environment. (Id.
at p. 774, 28 P.2d 438.)
In the instant case except for the experience on the ship the coercion was
more subtle than physical restraint. Yet the threat of "fair game" and
"freeloader debt" and even the possibility of future physical restraint loomed
over Wollersheim whenever he contemplated leaving Scientology and terminating
auditing or the other practices of that religion.
It is not only the acts of coercion themselves--the sabotage of Wollersheim's
business and the episode of captivity on the ship--which are actionable. These
acts of coercion and the threat of like acts make the Church's *897 other
harmful conduct actionable as well. No longer is Wollersheim's continued
participation in auditing (or for that matter, his compliance with the
"disconnect" order) merely his voluntary participation in Scientology's
religious practices. The evidence establishes Wollersheim was coerced into
remaining a member of Scientology and continuing with the auditing process.
Constitutional guarantees of religious freedom do not shield such conduct from
civil liability. We hold the state has a compelling interest in allowing its
citizens to recover for serious emotional injuries they suffer through
religious practices they are coerced into accepting. Such conduct is too
outrageous to be protected under the constitution and too unworthy to be
privileged under the law of torts.
We further conclude this compelling interest outweighs any burden such
liability would impose on the practice of auditing. We concede as the
California Supreme Court did in Molko that allowing tort liability for this
conduct imposes some burden on appellants' free exercise of this religion.
[FN4] Despite the possibility of liability Scientologists can still believe it
serves a religious purpose to impose and threaten to impose various sanctions
on staff members or upper level auditors who might leave the church or cease
its core religious practices. But it does place a burden on Scientologists
should they act on that belief. Scientology would be subject to possible
monetary loss if someone suffers severe psychological harm during auditing
where that auditing is conducted under the threat of these sanctions.
Likewise, Scientology may lose some staff members and upper level auditors who
would not continue in the Church or continue to submit to the core practice of
auditing except for their fears of retribution.

FN4. "While such liability does not impair the Church's right to believe
in recruiting through deception, its very purpose is to discourage the
Church from putting such belief into practice by subjecting the church to
possible monetary loss for doing so. Further, liability presumably impairs
the Church's ability to convert nonbelievers, because some potential
members who would have been recruited by deception will choose not to
associate with the Church when they are told its true identity." (Molko
v. Holy Spirit Assn., supra, 46 Cal.3d 1092, 1117, 252 Cal.Rptr. 122, 762
P.2d 46.)

**348 Like the Supreme Court in Molko, however, we find these burdens
"while real, are not substantial" and, moreover, are the minimum required to
achieve the state interest. To borrow from the high court's language in
Molko: "Being subject to liability [for coerced auditing] does not in any
way or degree prevent or inhibit [Scientologists] from operating their
religious communities, worshipping as they see fit, freely associating with one
another, selling or distributing literature, proselytizing on the street,
soliciting funds, or generally spreading [L. Ron Hubbard's] message among the
population. It certainly does not, ... compel [Scientologists] to perform
acts 'at odds with fundamental tenets of their religious beliefs.' [Citation
omitted.]" (Molko v. Holy Spirit Assn., supra, 46 Cal.3d 1092, 1117, 252
Cal.Rptr. 122, 762 P.2d 46.)
*898 Most significantly, by imposing liability in the instant case we "in
no way or degree prevent or inhibit" Scientology from continuing the free
exercise of the religious practice of auditing. Returning to the words of the
Supreme Court: "At most, it potentially closes one questionable avenue for
coercing certain members to remain in the church and to continue its core
practices such as auditing." (46 Cal.3d at p. 1117, 252 Cal.Rptr. 122, 762
P.2d 46.)
D. The "Disconnect" Policy Is Not a Constitutionally Protected Religious
Practice in the Circumstances of This Case
[14] Substantial evidence supports the conclusion Scientology encouraged
Wollersheim to "disconnect" from family members, including his wife and
parents. Furthermore, substantial evidence supports the conclusion Scientology
has a general policy of encouraging members to "disconnect" from non-
Scientologists who oppose Scientology or express reservations about its
teachings.
The first question is whether the "disconnect" policy qualifies as a
"religious practice" of Scientology. The trial court did not grant summary
adjudication on this factual issue. Nonetheless, we find the evidence
supported the conclusion disconnect is a "religious practice." " Disconnect" is
similar in purpose and effect to the "shunning" practiced by Jehovah's
Witnesses and Mennonites, among others. It also shares some attributes with
the remote monasteries common to many other religions. All of these practices
serve to isolate members from those, including family members, who might weaken
their adherence to the religion. Courts have held these policies qualify as
"religious practices" of other religions. (See, e.g., Paul v. Watchtower
Bible & Tract Soc. of New York, supra, 819 F.2d 875, 879-880; Rasmussen v.
Bennet (Mont.1987) 741 P.2d 755 [Church statements condemning plaintiffs'
conduct and calling for shunning were privileged under the First Amendment].)
We see no justification for treating Scientology's "disconnect" policy
differently and thus hold it is a "religious practice".
We recognize the "shunning" cases have involved claims brought by
former church members whom other family members were ordered to shun. The
instant case, in contrast, involves a cause of action brought by a former
church member ordered to shun the rest of his family not the other way around.
In the circumstances of this case this is a distinction without a difference.
Here appellants caused Wollersheim to isolate himself from his parents, wife
and other family members even though appellants had reason to know it would
inflict serious emotional injury on him. The injury to him and to the family
was just as severe as if his family had "shunned" him.
We need not and do not reach the question whether the practice of " disconnect"
is constitutionally protected religious activity in ordinary
circumstances. *899 (Contrast Paul v. Watchtower Bible & Tract Soc. of
New York, supra, 819 F.2d 875 [religion cannot be held civilly liable to
shunned former member because "shunning" is constitutionally protected] with
Bear v. Reformed Mennonite Church, supra, 341 A.2d 105 [religion may be
civilly liable to shunned former member because "shunning" must yield to
compelling state interest in promoting family relations].) Whether **349 or
not the "disconnect" policy is constitutionally protected when practiced in a
voluntary context it is not so protected if practiced in the coercive
environment appellants imposed on Wollersheim. The reasons are the same as
apply to "auditing." (See pp. ---- - ----, supra.) Substantial evidence
supports the finding Scientology created this coercive environment and
Wollersheim continued to submit to the practices of the church such as
"disconnect" because of that coercion. Furthermore, the evidence in the
instant case is sufficient to support a factual finding appellants imposed the
"disconnect" policy on Wollersheim with the knowledge he was psychologically
susceptible and therefore would suffer severe emotional injury as a result.
Accordingly, in the circumstances of this case, the free exercise clause did
not immunize appellants from liability for the "disconnect" policy practiced on
respondent.
E. Scientology's Improper Disclosure of Information Wollersheim Gave During
Confidential Religious Sessions Is Not Religious Expression Immunized From
Liability by the Constitution
There is substantial evidence Wollersheim divulged private information during
auditing sessions under an explicit or implicit promise the information would
remain confidential. Moreover, there is substantial evidence Scientology
leaders and employees shared this confidential information and used it to plan
and implement a "fair game" campaign against Wollersheim. Scientology argues
there also is substantial evidence in the record supporting its defense that
Scientology leaders and employees shared this confidential information only in
accordance with normal procedures and for the purpose of gaining the advice and
assistance of more experienced Scientologists in evaluating Wollersheim's
auditing sessions. However, the jury was entitled to disregard this innocent
explanation and to believe Wollersheim's version of how and why Scientology
divulged information he had supplied in confidence.
[15] The intentional and improper disclosure of information obtained
during auditing sessions for non-religious purposes can hardly qualify as
"religious expression." To clarify the point, we turn once again to a
hypothetical situation which presents a rough analogy under a traditional
religion. Imagine a stockbroker had confessed to a cleric in a confessional
that he had engaged in "insider trading." Sometime later this same stockbroker
leaves *900 the church and begins criticizing it and its leadership
publicly. To discredit this critic, the church discloses the stockbroker has
confessed he is an insider trader. This disclosure might be said to advance
the interests of the cleric's religion in the sense it would tend to discourage
former members from criticizing the church. But to characterize this violation
of religious confidentiality as "religious expression" would distort the
meaning of the English language as well as the United States Constitution.
This same conclusion applies to Scientology's disclosures of Wollersheim's
confidences in the instant case. And, since these disclosures do not qualify
as "religious expression" they do not qualify for protection under the freedom
of religion guarantees of the constitution. (See Discussion at pp. 340-341,
supra.)
III. THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL INJURY MUST BE
REVERSED
[16] For reasons set forth in section II, we have concluded Scientology is
not constitutionally immunized from civil liability for its cumulative course
of conduct to intentionally inflict emotional injury on Wollersheim. However,
this course of conduct does not supply a suitable predicate for a cause of
action based on negligent infliction of emotional injury. These actions are
potentially actionable only when they are driven by an animus which can
properly qualify them as "outrageous conduct." That is, they must be done for
the purpose of emotionally injuring the plaintiff, or at the least with
reckless disregard about their adverse impact on plaintiff's mental health.
(Nally v. Grace Community **350 Church, supra, 47 Cal.3d 278, 300, 253
Cal.Rptr. 97, 763 P.2d 948; Miller v. National Broadcasting Co. (1986) 187
Cal.App.3d 1463, 1487, 232 Cal.Rptr. 668.)
We have held in the prior section that Scientology and its leaders indeed
engaged in these actions with an intent to emotionally injure Wollersheim. But
this intentional activity was alleged in the intentional infliction of
emotional injury count and was tried under that count. The negligence count,
on the other hand, of necessity alleges a lesser degree of culpability and can
be sustained only if the defendant could be liable even if the emotional
injuries were caused by completely unintentional, merely negligent acts or
omissions. (See Slaughter v. Legal Process Courier Service (1984) 162
Cal.App.3d 1236, 1249, 209 Cal.Rptr. 189; 6 Witkin, Summary of Cal.Law (9th
ed. 1988) Torts, s 838, p. 195.)
In this context, Scientology is responsible only if it or any other religion
could be held liable where through inadvertence something it or its leaders did
damaged someone's business and thereby caused the businessman emotional
injury. Or if it or any other religion could be held liable where it
inadvertently revealed some information a member had disclosed in
*901 confidence as part of a religious practice like auditing or a
confession. Or if it or another religion could be held liable where its
functionaries inadvertently said something during auditing or a sermon or a
confession which triggered a listener's nascent mental illness.
At bottom, this question of duty is a matter of weighing competing
public policy considerations. (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69
Cal.Rptr. 72, 441 P.2d 912; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn.
6, 224 Cal.Rptr. 664, 715 P.2d 624.) [FN5] On balance, the religious freedom
consideration outweighs any concern about spreading the cost of emotional
injury, reducing the frequency of such emotional injuries, and the like. It is
one thing to say we will impose liability when a religious organization
intentionally or recklessly sets out to ruin a business or to reveal
confidential information or to "audit" mercilessly or to " disconnect" a
psychologically weak person from his family and thereby succeeds in emotionally
injuring a member or former member of that religion. It is quite another to
impose liability for negligent acts which inadvertently cause the same types of
injuries. (See Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1273, 237
Cal.Rptr. 873.)

FN5. " '[D]uty' is not an immutable fact of nature ' "but only an
expression of the sum total of those considerations of policy which lead
the law to say that the particular plaintiff is entitled to
protection." ' [Citation.]" (Ballard v. Uribe, supra, 41 Cal.3d at p.
572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

Since we hold religious organizations owe no duty to members or former members
with respect to these forms of injury, the cause of action for negligent
infliction of emotional injury must be reversed. We need not, however, reverse
the entire judgment.
Here, the jury found the Church liable for both negligent and intentional
infliction of emotional distress. As we discussed above, there is substantial
evidence to support a finding on the intentional infliction theory. We may
fairly presume any damages awarded on the negligence theory are subsumed in the
award for intentional infliction of emotional distress. Accordingly, any error
in allowing the jury to consider the negligence theory does not affect the
judgment. (See Vahey v. Sacia (1981) 126 Cal.App.3d 171, 179-180, 178
Cal.Rptr. 559; Bacciglieri v. Charles C. Meek Milling Co. (1959) 176
Cal.App.2d 822, 826, 1 Cal.Rptr. 706.)
IV. THE TRIAL COURT PROPERLY DENIED APPELLANTS' MOTIONS TO DISMISS FOR FAILURE
TO FILE BEFORE THE STATUTE OF LIMITATIONS HAD EXPIRED ON WOLLERSHEIM'S CAUSES
OF ACTION
Scientology argues on appeal, as it did at virtually every opportunity below,
that Wollersheim's causes of action are barred by the statute of
*902 limitations. At each and every juncture the various trial judges
**351 who heard these arguments rejected them. These judges ruled correctly
that Wollersheim's causes of action were subject to the discovery rule. (3
Witkin, Cal.Procedure (3d ed. 1985) Actions, s 356, p. 383.) The issue in each
instance, thus, was when Wollersheim discovered, or should have discovered, all
of the elements of his cause of action against Scientology. (See Leaf v.
City of San Mateo (1980) 104 Cal.App.3d 398, 407-408, 163 Cal.Rptr. 711.) The
trial judges properly ruled this issue, in turn, was a jury question. (Id.
at p. 409, 163 Cal.Rptr. 711.)
On appeal, this court is bound to uphold the jury's resolution of these
factual questions unless we determine the findings are not supported by
substantial evidence. After a careful review of the evidence, we conclude
these findings about the timeliness of Wollersheim's filing of this case are
supported by substantial evidence. Consequently, we affirm the rulings by the
judges below and, furthermore, we likewise affirm the factual findings the jury
impliedly made that Wollersheim did not discover and should not have discovered
his causes of action until a time within the statutory period.
V. THE TRIAL COURT DID NOT COMMIT INSTRUCTIONAL ERROR OR EVIDENTIARY ERROR
DURING THIS FIVE-MONTH TRIAL WHICH DENIED APPELLANTS A FAIR TRIAL OR DUE
PROCESS OF LAW
Appellants' final contention is that they were denied a fair trial and
due process of law because of various instructional and evidentiary rulings the
court made during this five-month trial. Considering the length of the trial
it is surprising appellants were able to identify so few questionable rulings.
[17] Appellants first complain the trial court erroneously denied two
instructions they requested. The first of these instructions restated the
elements of the cause of action for intentional infliction of emotional
distress or outrageous conduct with a slant favoring appellants' position.
[FN6]

FN6. The requested instruction reads:
"Plaintiff's claim for intentional infliction of emotional distress, or
outrageous conduct, is divided into several parts. [P] First, plaintiff's
claim that defendant engaged in outrageous conduct by subjecting plaintiff
to its practice of auditing--which, as I shall instruct you, is the central
religious practice of the religion of Scientology. [P ] Second, plaintiff
claims that defendant caused plaintiff to separate from his family and
friends as a condition for remaining in Scientology. [P ] Third, plaintiff
claims that defendant 'attacked plaintiff's business' and induced those of
his employees who were Scientologists to leave his employ. [P ] Fourth,
plaintiff claims that defendant disclosed his auditing files in disregard
of alleged promises of confidentiality to persons not authorized to receive
them. [P ] All of these acts were allegedly undertaken to inflict severe
emotional distress upon the plaintiff. [P ] The plaintiff is restricted in
this case to the claims he set forth in his complaint. Evidence of any
purported acts of the defendant not relating to the four categories I have
just described to you may not be considered in determining whether
plaintiff has established that defendant committed the tort of intentional
infliction of emotional distress [App. A306-07]."

*903 As requested the instruction implied the jury was to disregard
evidence of appellants' acts which did not fit precisely under the courses of
conduct as they defined them. Actually the plaintiffs' causes of action were
broader in many respects than the descriptions the appellants requested.
Moreover, some of the evidence introduced at the trial related to acts relevant
to issues of appellants' state of mind (intent, motivation, and the like) and
whether respondent was voluntarily participating in Scientology's practices or
was doing so within a coercive environment. Accordingly, the instruction as
requested would have been misleading to the jury. The trial court gave an
instruction which set forth the elements of the cause of action. Any
amplification of that instruction should have been more accurate than the one
appellants requested and less misleading as to the full scope of the jury's
range of inquiry. Thus it was not error to refuse to give this instruction.
[18] Appellants also complain about the refusal of one of their requested
instructions ordering the jury in very specific **352 fashion to disregard
evidence presented which was relevant to the non-suited fraud counts. Again,
the requested instruction was stated in overbroad terms and unduly slanted in
appellants' direction. For instance, as requested, it instructed the jury
that "it must disregard evidence presented in this trial regarding statements
purportedly made to [the plaintiff] to induce his participation in defendant
church." If given, this instruction could have misled the jury into believing
it must disregard evidence which provided context for the intentional
infliction count or which went to the presence or absence of coercion and
appellants' state of mind. So once again it was not error to refuse these
instructions. (See Wank v. Richman & Garrett (1985) 165 Cal.App.3d 1103,
1113, 211 Cal.Rptr. 919; Lubek v. Lopes (1967) 254 Cal.App.2d 63, 73, 62
Cal.Rptr. 36.)
In any event, on reviewing the total evidence offered in this trial, we find
that even if it were error to refuse these instructions that error was not
prejudicial. (Henderson v. Harnischfeger (1974) 12 Cal.3d 663, 670, 117
Cal.Rptr. 1, 527 P.2d 353; Williams v. Carl Karcher Enterprises, Inc.
(1986) 182 Cal.App.3d 479, 489, 227 Cal.Rptr. 465; see 9 Witkin,
Cal.Procedure, supra, Appeal, s 352, pp. 355-356.) We cannot say that the
giving of these instructions would have substantially enhanced the chances
appellants would have prevailed.
[19] Appellants likewise complain about evidentiary rulings.
Although they mention only a handful of specific incidents, they accuse the
judge of admitting a mass of prejudicial evidence about actions Scientology
took toward third *904 persons. In their brief appellants concede this
evidence was admissible under Evidence Code section 1101(b) as proof of
"intent" and "malice." [FN7] But they ask us to reverse the trial court under
Evidence Code section 352 on grounds the relevance of this evidence was
overwhelmed by its prejudicial effect. [FN8]

FN7. "Nothing in this section prohibits the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident or whether a defendant
in a prosecution for an unlawful sexual act or attempted unlawful sexual
act did not reasonably and in good faith believe that the victim consented)
other than his or her disposition to commit such an act." (Evid.Code, s
1101, sub. (b).

FN8. "The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the
jury." (Evid.Code, s 352, italics added.)

In reviewing the trial court's exercise of its discretion under section
352, appellate courts traditionally give great deference to the trial court's
evaluation of relevance versus prejudice. (See People v. Mota (1981) 115
Cal.App.3d 227, 234, 171 Cal.Rptr. 212; 1 Johnson, Cal.Trial Guide (1988) s
22.40, p. 22-43.) In the instant case we do not find an abuse of discretion.
Much of the evidence appellants object to was highly relevant to show the
network of sanctions and coercive influences with which Scientology had
surrounded Wollersheim. Much of the rest was highly relevant to show
Wollersheim's state of mind while undergoing audit, disconnect and the like or
appellants' state of mind, that is, their intent, malice, motives, and the
like. Whatever prejudice to appellants may have accompanied introduction of
this evidence it does not "substantially outweigh" the probative value of the
evidence to important issues in this case.
Finally, appellants complain about the alleged prejudicial conduct of
Wollersheim's counsel during the trial and closing argument. As was true of
their claims of instructional and evidentiary evidence, appellants provide us
with only a few examples of alleged prejudicial error and imply these are but
the tip of the iceberg. They confine themselves to this handful of incidents
either because no other potentially prejudicial incidents occurred or because
they expect this court to do their job by scouring the 25,000 page record for
other examples to bolster their claim of error. If what appellants set forth
in their brief represent the only incidents they allege as prejudicial
**353 conduct, we find them insufficient to justify reversal under applicable
standards of prejudice. (Garden Grove School Dist. v. Hendler (1965) 63
Cal.2d 141, 144, 45 Cal.Rptr. 313, 403 P.2d 721 [attorney misconduct only
requires reversal if "it is reasonable to conclude that a verdict more
favorable to defendants would have been reached but for the error"]; see 9
Witkin, Cal.Procedure, supra, s 340, p. 346.) And if these brief examples were
only an invitation to do *905 appellants' work in identifying prejudicial
error in their opposing attorney's conduct, we decline that invitation.
(Horowitz v. Noble (1978) 79 Cal.App.3d 120, 139, 144 Cal.Rptr. 710 [" 'The
reviewing court is not required to make an independent, unassisted study of the
record in search of error or grounds to support the judgment' "]; Wint v.
Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265, 107 Cal.Rptr. 175, 507 P.2d
1383.)
VI. THE GENERAL DAMAGES AND PUNITIVE DAMAGES THE JURY AWARDED ARE EXCESSIVE
FOR THE INTENTIONAL INFLICTION OF EMOTIONAL INJURY COUNT AND THUS THOSE DAMAGE
AWARDS MUST BE REDUCED
In the previous section, we concluded the allegations which are
supported by substantial evidence are enough to sustain a cause of action for
intentional infliction of emotional injury against Scientology. But that
conclusion does not determine whether the proved allegations support the level
of damages the jury awarded under this cause of action. We turn to that issue
now.
We are only concerned now with whether a reasonable juror could have found
this level of "outrageous" conduct inflicted $5 million worth of emotional
injury on Wollersheim. Similarly, we ask whether this level of " outrageous"
conduct and Scientology's degree of intent in carrying it out warrant $25
million in punitive damages. We conclude these awards are excessive for the
conduct alleged and proved in this case.
An award for compensatory damages will be reversed or reduced "upon a showing
that it is so grossly disproportionate to any reasonable view of the evidence
as to raise a strong presumption that it is based upon prejudice or passion."
(Koyer v. McComber (1938) 12 Cal.2d 175, 182, 82 P.2d 941; accord
Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 919, 114 Cal.Rptr.
622, 523 P.2d 662 ["an appellate court may reverse an award only ' " When the
award as a matter of law appears excessive, or where the recovery is so grossly
disproportionate as to raise a presumption that it is the result of passion or
prejudice" ' [Citations]"]; Fagerquist v. Western Sun Aviation, Inc. (1987)
191 Cal.App.3d 709, 727, 236 Cal.Rptr. 633; see 8 Witkin, Cal. Procedure,
supra, Attack on Judgment in Trial Court, s 46, p. 446.) Even under this
stringent standard, it is manifest the jury's award here is excessive since it
is so grossly disproportionate to the evidence concerning Wollersheim's
damages.
[20] Wollersheim's psychological injury although permanent and severe is not
totally disabling. Moreover, even Wollersheim admits Scientology's
conduct *906 only aggravated a pre-existing psychological condition;
Scientology did not create the condition. While the jury awarded Wollersheim
$5 million in compensatory damages, we determine the evidence only justifies an
award of $500,000.
[21] "It is well established that a reviewing court should examine punitive
damages and, where appropriate, modify the amount in order to do justice."
(Gerard v. Ross (1988) 204 Cal.App.3d 968, 980, 251 Cal.Rptr. 604;
Allard v. Church of Scientology, supra, 58 Cal.App.3d at p. 453, 129
Cal.Rptr. 797.) In reviewing a punitive damages award, the appellate court
applies a standard similar to that used in reviewing compensatory damages,
i.e., whether, after reviewing the entire record in the light most favorable to
the judgment, the award was the result of passion or prejudice. (See
Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64, 118 Cal.Rptr.
184, 529 P.2d 608; Devlin v. **354 Kearny Mesa AMC/Jeep/Renault, Inc.
(1984) 155 Cal.App.3d 381, 388, 202 Cal.Rptr. 204.) However, the test here is
somewhat more refined, employing three factors to evaluate the propriety of the
award.
[22] The first factor is the degree of reprehensibility of the
defendant's conduct. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910,
928, 148 Cal.Rptr. 389, 582 P.2d 980.) "[C]learly, different acts may be of
varying degrees of reprehensibility, and the more reprehensible the act, the
greater the appropriate punishment, assuming all other factors are equal."
(Ibid.)
The second factor is the relationship between the amount of the award and the
actual harm suffered. (Ibid.; Seeley v. Seymour (1987) 190 Cal.App.3d
844, 867, 237 Cal.Rptr. 282.) This analysis focuses upon the ratio of
compensatory damages to punitive damages; the greater the disparity between
the two awards, the more likely the punitive damages award is suspect.
(Seeley v. Seymour, supra, 190 Cal.App.3d at p. 867, 237 Cal.Rptr. 282;
see Little v. Stuyvesant Life Ins. Co. (1977) 67 Cal.App.3d 451, 469-470,
136 Cal.Rptr. 653.)
Finally, a reviewing court will consider the relationship of the punitive
damages to the defendant's net worth. (Neal v. Farmers Ins. Exchange,
supra, 21 Cal.3d at p. 928, 148 Cal.Rptr. 389, 582 P.2d 980; Devlin v.
Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at p. 390, 202
Cal.Rptr. 204.) In applying this factor courts must strike a proper balance
between inadequate and excessive punitive damage awards. "While the function
of punitive damages will not be served if the wealth of the defendant allows
him to absorb the award with little or no discomfort, the function also will
not be served by an award which is larger than necessary to properly punish and
deter." (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155
Cal.App.3d at p. 391, 202 Cal.Rptr. 204.)
[23] *907 As to the punitive damage award, we find it is not commensurate
with Scientology's conduct in this case. This is not a situation where the
centerpiece of the case involved a Church-ordered physical beating or theft or
criminal fraud against Wollersheim. The "outrageous conduct" was less
outrageous and more subtle than that. We further note Wollersheim's counsel in
the full flood of his emotional summation at the conclusion of this lengthy
trial only deigned to urge the jury to return punitive damages of as much as
"six or seven million dollars."
The evidence admitted at trial supported the finding the appellant church had
a net worth of $16 million at the time of trial. Accepting these figures as
true, the jury awarded Wollersheim 150 percent of appellant's net worth in
punitive damages alone--195 percent if compensatory damages are included. This
appears not just excessive but preposterous. (Seeley v. Seymour, supra, 190
Cal.App.3d at p. 869, 237 Cal.Rptr. 282 [punitive damages reversed; award was
200 percent of defendant's net worth]; Burnett v. National Enquirer, Inc.
(1983) 144 Cal.App.3d 991, 1012, 193 Cal.Rptr. 206 [punitive damages reduced;
initial award was 35 percent of defendant's net worth]; Egan v. Mutual of
Omaha Insurance Co. (1979) 24 Cal.3d 809, 824, 169 Cal.Rptr. 691, 620 P.2d 141
[punitive damages reversed; award was 58 percent of defendant's net income];
Allard v. Church of Scientology, supra, 58 Cal.App.3d at pp. 445-446, 453,
129 Cal.Rptr. 797 [punitive damages reversed; award was 40 percent of
defendant's net worth]; compare Devlin v. Kearny AMC/Jeep/Renault, Inc.,
supra, 155 Cal.App.3d at pp. 391-392, 202 Cal.Rptr. 204 [punitive damages
affirmed where award was 17.5 percent of defendant's net worth]; Schomer v.
Smidt (1980) 113 Cal.App.3d 828, 836-837, 170 Cal.Rptr. 662 [punitive damages
affirmed; award was 10 percent of defendant's net worth]; Downey Savings &
Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d 1072, 1100, 234
Cal.Rptr. 835 [punitive damages affirmed; award was 7.2 percent of defendant's
net income].) We find it especially excessive given the nature of the
"outrageous conduct" in this particular case. Accordingly **355 we reduce
the punitive damage award to $2 million.
DISPOSITION
The judgment is reversed as to the cause of action for negligent
infliction of emotional injury. The judgment as to the cause of action for
intentional infliction of emotional injury is modified to reduce the
compensatory damages to $500,000 and the punitive damages to $2 million. In
all other *908 respects the judgment is affirmed. Each party to bear its
own costs on appeal.

LILLIE, P.J., and FRED WOODS, J., concur.

 

 

 

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