DeCrescenzo v Scientology Nicholas Daum Declaration - Motion to Compel Opposition (Feb 2013)

7/30/2019 DeCrescenzo v Scientology Nicholas Daum Declaration - Motion to Compel Opposition (Feb 2013)

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28endal l Bril l

Klieger LLP0100 Santa Mon ica Blvd.uite 1725

os Angeles. CA 90067

KENDALL BRILL & KL IEGER LLP

Bert H . Deixler (70614)bdeixler@kbktrm . com

Nicholas F. Daum (236155)ndaum@kbkfirm . com

10100 Santa Monica Blvd., Suite 1725Los Angeles , California 90067Telephone : 310.556.2700Facsim ile : 310.556 .2705

RABINOWITZ , BOUDIN , STANDARD ,

KRINSKY & LIEBERMAN , LLP

Eric M . Lieberman (pro hac vice)45 Broadway, Suite 1700New York, NY 10006

Telephone : 212.254.1111Facsim ile : 212.674 .4614

Attorneys for Church of Scientology International

FILEDSuperior Court of Californ ia

County of Los Angeles

FEB 21 2013John A . C |aAe, Executive Oicer/C lerk

Bv PernioMOSES J™ "

SUPERIOR COURT OF THE STATE OF CAL IFORNIA

COUNTY OF LOS ANGELES , CENTRAL DISTRICT

LAURA ANN DeCRESCENZO ,

Plaintiff,

v.

CHURCH OF SCIENTOLOGY

INTERNATIONAL, a corporate entity,REL IGIOU S TECHNOLOGY CENTER ,

previously sued herein as Doe No. 1, aCalifornia Corporation, and DOES 2-20 ,

Defendants.

Case No . BC411018

Assigned for All Purposes to the Hon. RonaldSohigian, Dept . 41

DECLARATION OF NICHOLAS F .

DAUM IN OPPOSITION TO

PLAINTIFF ,S MOTION TO COMPEL OR

FOR TERM INATING SANCTIONS

Judge : Hon. Ronald SohigianDate : M arch 6

, 2013

Time : 1:30 p.m.

Dept.: 41

Filed concurrently with Opposition to

P laintiff 's Motion to Compel; Declaration ofA llan Cartwright; Declaration of Warren

McShane; Evidentiary Objections

127522. 1

DECLARATION OF NICHOLAS F. DAUM IN OPP OSITION TO PLAINTIFF,S MOTION TO COMPEL OR FORTERM INAT ING SANCT IONS



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d .

DECLARATION OF NICHOLAS F . DAUM

I, Nicholas F. Daum, declare as follows :

1. I am an attorney at the law firm of Kendall Bril l & Klieger LLP , counsel of record

for Defendant Church of Scientology Internation al ("CSI") in the above-caption ed action. I am a

member in good standing of the State Bar of California and am admitted to practice before this

Court . Except where otherwise stated, I have personal knowledge of the facts set forth in this

Declaration and , if called as a witness, could and would testify competently to such facts under

oath .

2. On January 7 , 2013 , the Court granted plaintiffs motion to compel production of

documents in this matter, and issued an order that, in summary, required CSI to either (a) produce

documents responsive to certain discovery requests (by January 25, 2013) or (b) if withholding

documents on the basis of privilege, to provide, by January 18 , 2013 , a privilege log that identified

each document withheld , and that, for each document, included information as to dates, time,

place, preparation , to whom the communication went, and a clear statement of the basis for an

assertion of privilege . A true and correct copy of the notice of the Court's order is attached hereto

as Exh ib it A .

3.

On January 18, 2013 , after an extensive review of the plaintiffs auditing files, CSI

produced to the plaintiff a supplemental privilege log ("

Log") covering documents CSI intends to

withhold from production, specifically identifying each such document and the basis upon which

privilege is claimed . For each such document, the relevant privilege is the California C lergy-

Penitent Privilege and the First Amendment to the United States Constitution. The log identifies,

for each document, (a) the specific privilege claimed, (b) the date and place of preparation , (c) the

specific clergymen , identified by name, to whom the communication was made or who made the

communication, and (d) a brief description of the document (without revealing the content of the

protected communication) .

4. Because the Log runs to hundreds of pages, and has already been included in the

plaintiffs moving papers, to avoid burdening the Court's files I have attached hereto a true and

correct copy of representative excerpts from the Log , together with the transm ittal letter and proof

127522.1 ]

DECLA RATION OF NICHOLAS F . DAU M IN OPPOSITION TO PLA INTIFF,S MOTION TO COMPEL OR FORTERM INAT ING SANCT IONS



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d .

of service enclosing the Log , as Exhibit B . The excerpted pages are substantively similar in form

to the remainder of the Log .

A typical entry from the Log appears as follows:

Document

Date Nbr of pages Location Copies Description Privilege

Numb er

00 5 Aug 20 , 1995 5 1 Los Ange les None Record of

confidential

communication

in spiritua l

counseling

Clergy Penitent

(Ev . Code

§1034 ); First

Amendment

Free Exerc ise

session between Clause and

LD and her Establishment

clergyman (TL). C lause

5 .

On January 25 , 2013 , CSI produced and delivered to the office of plaintiff s

counsel add itional documents, totaling more than 2,800 pages, responsive to plaintiffs discovery

requests. These documents included the entirety of plaintiff s ethics files, as well as several

hundred documents that had been filed in plaintiff s pc files bu t that were not confidential

commun ications made in the religious practice of auditing.

6 . Aside from the documents specifically identified on the Log served on January 18,

2013 , CSI is not currently withholding from production any documents responsive to the

discovery requests for which production was compelled by the January 7, 2013 Order .

7. The documents being withheld rom production , and identified on the Log , date at

the latest rom April , 20 04.

8 . Attached hereto as Exhibit C is a true and correct copy of the opinion of the Court

of App eal in this matter, Case No. B224409 .

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed February 21, 2013 , at Los Angeles, California//

N icholas F . Daum

127522.1 2

DECLARATION OF NICHOLAS F . DAUM IN OPPOSITION TO PLA INTIFF,S MOTION TO COMPEL OR FOR

TERM INATING SANCTIONS





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BLUMBERG LAW CORPORATION

JOHN P , BLUMBERG , ESQ. (SBN 70200 )SINDEE M. SMOLOWITZ , ESQ. (SBN 123237)444 W. OCEAN BLVD. , SUITE 1500LONG BEACH , CA 90802

TELEPHONE : (562 ) 437-0403

TELECOPIER : (562 ) 432-0107

METZGER LAW GROUP

A PROFESSIONAL LAW CORPORATION

RAPHAEL METZGER, ESQ. (SBN 116020)KATHRYN SALDANA , ESQ . (SBN 251364 )401 E . OCEAN BLVD., SUITE 800

LONG BEACH , CA 90802ÿ-496 6TELEPH ONE : (562 ) 437-4499

TELECOPIER : (562 ) 436-1561

Attorneys for PlaintiffLAURA ANN DECRESCENZO

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COU NTY OF LOS ANGELES - CENTRAL DISTRICT

LAURA ANN DeCRESCE NZO , aka

LAURA A. DIECKMAN ,

Plaintiffs,

vs .

CHURCH OF SCIENT OLOGY

INTERN ATIONAL , a corporate

entity, AND DOES 1-20 ,

Defendants .

CASE NO, BC411018

Assigned to the HonorableRonald M. Sohigian , Dept . 41

NOTICE OF RULING ON

PLAINTIFF,S MOTION TO COMPEL

NOTICE OF RULING ON PLAINTIFF'S MOTION TO COMPEL

Exhibit A Page 3



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TO THE PARTIES HERETO AND TO THEIR ATTORNEY S OF RECORD :

PLEASE TAKE NOTICE that on January 7., 2013 in Department 41

of the above-entitled Court , Plaintiff's Motion to Compel Defendant ,

Church of Scientology International ("CSI") , to Provide Code Compliant

Responses and to Produce Documents in Response to Plaintiff's Notice

of Deposition of the Custodian of Records of Church of Scientology

International and Request for Production of Documents came on

regularly for hearing before the Honorable Ronald M. Sohigian .

After considering the papers submitted in support of and in

opposition to the motion , and after hearing arguments of counsel

thereon , the Court ruled as follows:

1. Plaintiff's motion is granted as to each request except

for request numbers 15 , 34 and 35 . CSI may still precipitate non

compliance with the notice and order, but to do so , must provide a

coherent and focused privilege log that (1) identifies each document ,

including information relating to dates , time , place , preparation , who

wrote the document , to whom the document went , etc.; and (2) provide

a clearer statement and grounds for the specific objection and

privilege asserted with respect to each document . Plaintiff may

review the privilege log and meet and confer further if necessary , and

the Court will consider ruling on any supplemental privilege log at

a later date.

2. CSI must produce responses in accordance with the

Court's order by January 18, 2013 , unless CSI supports its non -

compliant responses with a privilege log by the same date . CSI must

produce all responsive documents no later than January 25 , 2 013 , at

9:30 a.m. at the offices of Metzger Law Group .

//


Exhibit A Page 4



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3. Plaintiff to give notice .

DATED : January 7 , 2013 METZGER LAW GROUPA Professional Law Corporation

KATHRYN SALDANA , ESQ .

Attorneys for PlaintiffLAURA ANN DECRESCENZO

NOTICE OF RULING ON PLAINTIFF'S MOTION TO CO MPEL

Exhibit A Page 5



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PROOF OF SERVICE

STATE OF CALIFORNIA , COUNTY OF LOS ANGELES )

I am employed in the County of Los Angeles , State of California . I airover the age of 18 years and am not a party to the within action .

business address is 401 East Ocean Blvd., #800 , Long Beach , CA 90802 .My

On January 8, 2013 , I served the foregoing document , described asNOTICE OF RULING ON PLAINTIFF'S MOTION TO COMPEL on the parties to thiaction as follows:

X (BY MAIL ) I caused copies of such document , enclosed in sealed

envelopes , to be deposited in the mail at Long Beach , California withpostage thereon fully prepaid to the persons and addresses indicated on the

attached list . I am "readily familiar" with the firm,s practice ofcollecting and processing correspondence for mailing . It is deposited withU.S

. Postal Service on that same day in the ordinary course of business .I am aware that on motion of any party served , service is presumed invalidif the postal cancellation date or postage meter date is more than one dayafter the date of deposit for mailing set forth in this affidavit .

(BY FACSIMILE) I served the foregoing document by faxing true

copies thereof from facsimile number (562 ) 436-1561 , to the facsimilenumbers indicated on the attached list . Said document was transmitted byfacsimile transmission , which was reported complete and without error .

(BY PERSONAL SERVICE) I caused to be delivered such document by

hand to the firms listed on the attached list where personal service isindicated.

(BY E-MAIL ) I delivered such document by electronic mail to thefirms listed on the attached list.

_ (BY OVERNIGHT MAIL ) I caused such document to be delivered to the

firms indicated on the attached list by Express Mail or by another expressservice carrier , by placing the document in an envelope designated by the

carrier and addressed as indicated on the attached list , with the deliveryfees provided for , and depositing same in a box or facility regularlymaintained by that carrier or by delivering same to an authorized courieror driver authorized by the carrier to receive documents .

X (STATE) I declare under penalty of perjury under the laws of theState of California that the above is true and correct .

_ (FEDERAL) I declare that I am employed in the offices of a memberof this court, at whose direction service was made .

Executed on January 8 , 2013 , at Long Beach , California .

Susan M. Simpson , Declarant


Exhibit A Page 6



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F :\WP\Cases\9527\NOTICES\RULINGS\20l3-0t-07 MTC,wpi

SERVICE LIST

(DeCrescenzo v . Church of Scientology , Case No . BC411018 )

-oOo-

Bert H . Deixler , Esq .

Kendall Brill & Klieger LLP

10100 Santa Monica Blvd., Suite 172S

Los Angeles , CA 90067

(Church of Scientology International )

Kendrick L . Moxon , Esq .

Moxon & Kobrin

3500 W . Olive Avenue , Suite 300

Burbank , CA 91505

(Church of Scientology International )

Matthew D . Hinks , Esq .Jeffer, Mangels , Butler & Mitchell

1900 Avenue of the Stars , 7" " Flooir

Los Angeles , CA 90067-4308

(Religious Technology Center)

John P. Blumberg , Esq .

Blumberg Law Corporation

444 W. Ocean Blvd. , Suite 1500

Long Beach , CA 90802

(Plaintiff )

(Updated August 23, 2013 Jlp)

NOTICE OF RULING ON PLAINTIFF 'S MOTION TO COMPE L

Exhibit A Page 7





K Kendall Brill K lieger writer,s direct :

310.272 .7906

[email protected]

January 18, 2013

VIA MESSENGER

Kathryn Saldana, Esq.METZGER LAW GROUP

401 E. Ocean Blvd., Ste . 800

Long Beach, California 90802

Re: DeCrescenzo v. Church of Scientology International, et al.,

Los Angeles Superior Court Case No. BC411018

_Dear Ms. Saldana:

Enclosed are privilege logs produced by Church of Scientology International inconnection with the above-referenced matter, These privilege logs are produced pursuant to theCourt's January 7, 2013 Order Concern ing Plaintiffs Motion to Compel .

Sincerely,

Patricia S . Perell6

Paralegal

Enclosure

cc: Bert Deixler, Esq .

Kendall Brill & Klieger LLP Exhibit B Page 810100 Santa Mon ica Blvd. Su ite 1725 Los Angeles, CA 90067 telephone 310.556.270 0 facsimile 310.556.2705 www.kbkirmxom



Kendall Brill

6 Klleger LLPtOIOOSirtaWoolosnW .

Suite 172 5

los Angees, CA S006V

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KENDALL BRILL & KLIEGER LLP

BertH. Deixler (70614)

bdeixler (a).lcbkfirm . comNicholas F. Daum (236155)

ndauni@kbkftrm. com10100 Santa Monica Blvd., Suite 1725

Los Angeles , California 90067Teleph one : 310.556.2700Facsimile: 310.556.2705

RAB 1NOWITZ, BOUDIN, STANDARD,

KRINSKY & LIEBERMAN , LLP

Eric M . Lieberman (pro hac vice)45 Broadway, Suite 1700

New York , NY 10006elephone : 212.254.1111acsimile: 212.674.4614

Attorneys for DefendantCHURCH OF SCIENTOLOGY

INTERNATIONAL

JEFFER , MANGELS, BUTLER & MITCHELL, LLPRobert E . Mangels (48291)Matthew D . Hinlcs (200750)1900 Avenue of the Stars, Seventh Floor

Los Angeles, California 90067Telephone: 310.203.8080Facsimile : 310 .203.0567

Attorneys for Defendant RELIGIOUS TECHNOLOGY .CENTER

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES , CENTRAL DISTRICT

LAURA ANN DeCRESCENZO ,

Plaintiff,

v .

CHURCH OF SCIENTOLOGY

INTERNATIONAL , a corporate entity,RELIGIOUS TECHNOLOGY CENTER,

previously sued herein as Doe No , 1 , aCalifornia Corporation , aud DOES 2-20,_ Defendants ._

Case No . BC411018

Assigned for Al l Puiposes to the Hon . RonaldSohigian, Dept . 41

DEFENDANTS, SUPPLEMENTALPRIVILEGE LOG

Judge : Hon. Ronald SohigianDept.: 41

Action Filed :

Trial Date:

April 2 , 2009ÿTu lv 29 . 2013

124322.1 Exhibit B Page 9

DEFENDANTS> SUPPLEMENTAL PRIVILEGE LOG



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28Kendall Bril l

ft Kliegerl.LP10100 iahla Monica O lnl .Suite 1725

los Angefes, CA 90067

Pursuant to the Cou rt's Order of January 7,2013 on Plaintiffs Motion to Compel, attached

hereto as Exhibits 1-42 is a Supplemental Privilege Log prepared by Defendants . Exhibit 43

provides a key to the initials in the Privilege Log , and is produced as Confidential Information.

Dated; Januaiy 18,2013

124322.1

KENDALL BRILL & KLTÿGER LLP

By :N icholas F . Daum

Attorneys for Church of Scientology International

1 Exhibit B Page 10

DEFENDANTS > SUPPLEMENTAL PRIVILEGE LOG



fw

Pv ,

Kendal l Brill

& IjCJieger LLP10 100 Santa Monka B lvd.

SuHÿlfSLos Aftfeles, CA 90067

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES - Laura Ann DeCrescenzo v.

Church of Scientology International, et al. - BC 411018

At the time of service, I was over 18 years of age and not a party to this action . I amemployed in the County of Los Ang eles , State of California . My business add ress is 10100 SantaMonica Blvd., Suite 1725, Los Angeles, Califon ia 90067 .

On January 18,2013, 1 served true copies of the following document(s) described asDEFE NDANTS, SUPPLEMENTAL PRIVILEGE LOG on the interested parties in this actionas follows:

Raphae l Metzge r, Esq.

Kathryn Saldana , Esq.

METZGER LAW GROUP

401 E . Ocean Blvd., Ste. 800

Long Bea ch , California 90802

BY PERSONAL SERVICE: I caused the document(s) to be delivered by hand to theof fices of each interested party at the addres s indicated above or on the attached service list.

I declare under pena lty of perjury under the laws of the State of California that theforegoing is true and correct.

Executed on January 18, 2013, at Los Angeles, California.

PROOF OF SERV ICEExhibit B Page 11



EXH IB IT 1EBSSsa aasssBssasasÿÿsaÿasKa

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Exhibit B Page 12



Laura D eCrescenzo v CSI, et a!., PRIVILEGE LOG Page | 1Folder #01 Preclear Fo lders

Maintained in accordance with Scientology scripture

(See 1111 30-37 of Declarat ion of Warren McShane December 21, 2012)

Document

Number

Date Nb r of

pages

Location Copies Descript ion Privilege

001

Nov 26, 1989 8

Albuquerque ,

NM CA lb")

None Record of confidential commun ication in

spiritual counseling sess ion between LD and

her clergyman (FD).

Clergy Penitent (Ev . Code §10 34);First Amendme nt Free Exercise

Clause and Estab lishment Clause

00 2

Nov 26, 1989 1

Alb None Record of confidentia l commun ication

between LD and clergyman (LGe) regardingher spiritual condition.

Clergy Penitent (Ev. Code §10 34);First Ame ndme nt Free Exercise


003

Nov 29, 1989 4

Alb None Record of confidentia l commun ication in

spiritual counseling session between LD and

her clergyman (FD).

Clergy Penitent (Ev. Code §1034);First Ame ndme nt Free Exercise

Clause and Establishment Clause

004

Nov 29, 1989 1

A lb None Record of confidentia l comm un ication

between LD and clergyman (JE) regarding

her spiritua l condition.

Clergy Penitent (Ev. Code §1034);First Ame ndment Free Exercise


00 5

Dec 1, 1989 4

Alb None Record of confidentia l com munication in

sp iritual counseling session between LD andher clergyman (FD) .

Clergy Penitent (Ev . Code §1034);

First Amendm ent Free ExerciseClause and Establishment Clause

006

Dec 1, 1989 1

A lb None Record of confidentia l comm unication

between LD and clergyma n (JE) regarding


Clergy Penitent (Ev. Code §1034);First Amendme nt Free Exercise




Laura D eCrescenzo v CSI, et. al., PRIVILEGE LO G Page | 2Folder #01 Preclear Folders

Maintained in accordance with Sciento logy sc ripture(See 30-37 of Dec laation of Warren McShane December 21, 2012)

Document

Number

Date Nbr of

pages

Location Copies Description Privilege

007

Dec 5, 1989 2A lb None Record of conf identia l commun ication

between LD an d clergyman (LGe) regarding

her spiritual condition.

Clergy Pen itent (Ev. Code §1034);First Ame ndment Free Exe rcise


008

Dec 9, 1989 1

A lb

N n W r i n mm ni i n l r m n n mot ident ified, clerical status evident from

nature of do cument) from senior clergyman

(case superv isor) re lating to previousconfidentia l commun ications between LD and

clergymen , and regarding LD 's sp iritua lcond ition

Clergy Pen itent (Ev. Code §1034);First Ame ndment Free Exercise

Clause and Establishm ent Clause

009

Dec 12, 1989 1

Alb None Record of confidentia l communication

between LD and clergyman (LGe) regarding

her sp iritual condition.

Clergy Pen itent (Ev. Code §1034 );First Ame ndment Free Exercise


010

Dec 12, 1989 5

A lb None Record of conf idential communicat ion in

sp iritua l counseling session between LD and

her clergyman (FD) .

Clergy Penitent (Ev. Code §1034);First Ame ndme nt Free Exercise


011

Dec 12, 1989 1

A lb None Record of confidentia l commun ication

between LD an d clergyman (JE) regarding


Clergy Penitent (Ev. Code §1034);First Amendment Free Exercise




Laura DeCrescenzo v CSI, et al., PRIVILEGE LOG P a g e | 3Fo lder #01 Preclear Fo lders

Maintained in accordance with Scientology scripture(See mi 30-37 of Declaration of Warren McShane December 21, 2012)

Document

Numbe r

Date Nb r of

pages

Location Copies Description Privilege

012

Dec 19, 1989 4

A lb None Record of conf idential communication in

spiritua l counseling session between LD and

her clergyma n (FD) .

Clergy Pen itent (Ev . Cod e §103 4);First Amendme nt Free Exercise


013

Dec 19, 1989 1

Alb None Record of confidentia l comm un ication

between LD and clergyman (LGe) rega rding

her spiritual condition.

Clergy Pen itent (Ev. Code §1034);First Amendme nt Free Exercise


014

Dec 20, 1989 3

Alb None Record of confidentia l communication in

spiritual counseling session between LD and

her c lergyman (FD).

Clergy Penitent (Ev. Code §1034);First Amendme nt Free Exercise


015

Dec 20, 1989 1

Alb None Record of confident ial communicat ion

between LD and clergyman (LGe) regarding

he r spiritual condition.

Clergy Pen itent (Ev . Cod e §1034 );First Ame ndme nt Free Exercise

Clause and Establishme nt Clause

016

Dec 29, 1989 4

Alb None Record of conf identia l commun ication in

sp iritual counse ling session between LD andher clergyman (FD) .

Clergy Pen itent (Ev. Code §1034);

First Amendment Free Exe rciseClause and Establishment Clause

017

Dec 29, 1989 1

A lb None Record of confidential communication

between LD and c lergyman (JE) regarding

her sp iritua l condit ion.

Clergy Pen itent (Ev. Code §1034 );First Am endme nt Free Exercise




Laura DeCrescenzo v CSIr et. a!., PRIVILEGE LOG Page | 4Fo lder #01 Prec lear Fo lders

Maintained in accorda nce with Scientology scripture(See UH 30-37 of Declarat ion of Wa rren McShane December 21, 2012)

Document

Number

Date Nbr of

pages

Location Copies Descript ion Pr ivilege

018

Jan 3,1990 3

Alb None Record of confidential commun ication in

spiritual counseling session between LD andher

"

clergyman (FD) .

Clergy Pen itent (Ev. Cod e §1034);First Amendm ent Free Exercise


019

Jan 3, 1990 1


between LD an d clergyman (JE) regarding

her sp iritua l condition.

Clergy Pen itent (Ev. Code §1034);First Ame ndment Free Exercise

Clause and Establ ishment Clause

02 0

Jan 4,1990 4

A lb None Record of confidentia l comm unication in

sp iritua l counseling session between LD and


Clergy Pen itent (Ev. Cod e §103 4);First Amendment Free Exercise


021

Jan 4, 1990 1


between LD an d clergyman (SM) regarding

her sp iritual condit ion.

Clergy Penitent (Ev. Code §10 34);First Ame ndme nt Free Exercise


022

Jan 4,1990 4

Alb None Record of confidential communication in

spiritual counseling session between LD andher clergyman (FD) .

Clergy , Penitent (Ev. Code §1034);

First Amendment Free Exercise


023

Jan 4, 1990 1

A lb None Record of confidentia l communication

between LD and clergyman (illegib le)

regarding her spiritua l condition.

Clergy Pen itent (Ev. Cod e §1034 );First Amendme nt Free Exercise




Laura DeCrescenzo v CSI, et a!., PRIVILEGE LOG Page | 5Fo lder #01 Preclear Folders

Maintained in accorda nce with Sciento logy sc ripture

(See 111 1 30-37 of Dec larat ion of Warren McShane December 21, 2012)

Document

Number

Date Nbr of

pages

Location Cop ies Description Priv ilege

024

Jan 9,1990 1

Alb None Record of confident ial communica t ion in

sp iritual counseling sess ion between LD and

her clergyma n (FD) .

Clergy Penitent (Ev. Code §1034);First Amendment Free Exe rcise

C lause and Establishment Clause

025

Jan 9, 1990 7

Alb None Record of confidentia l commun ication in

sp iritua l counse ling session betwee n LD and


Clergy Penitent (Ev . Code §1034);First Amendment Free Exercise


026

Jan 9,1990 1

A lb None Record of confidentia l comm un ication

between LD and clergyman (JE) regarding

her spiritual condiion.

Clergy Pen itent (Ev. Code §1034 );First Amendme nt Free Exercise


027

Jan 10,199 0 4

A lb None Record of confidentia l communication in

spiritual counseling sess ion between LD and


Clergy Pen itent (Ev. Code §1034 );First Amendme nt Free Exercise


028

Jan 10,1990 1

Alb None Record of conf identia l comm un ication

between LD and clergym an (JE) regardingher spiritual condition.

Clergy Penitent (Ev. Code §1034);

First Ame ndme nt Free ExerciseClause and Establishm ent Clause

029

Jan 11, 1990 4

A lb None Record of confidentia l comm unication in

sp iritual counseling session between LD and


Clergy Pen itent (Ev. Cod e §1034);First Ame ndme nt Free Exercise






DeCrescenzo v. Church of Scientology Intern., Not Reported in Cal.Rptr.3d (2011)

Not Oficially Pub lished

(Cal. Rules of Court, Rules 8.1105 and 8.11 10, 8.1115)2011WL 2508142

Only the Westlaw citation is currently available .

California Rules of Court , rule 8.11 15 , restricts citation of unpublished opinions in California courts.

Court of Appeal, Second District , Division 3, California .

Laura Ann DeCRESCENZO , Plaintiff and Appellant ,v .

CHURCH OF SCIENTOLOGY INTERNATIONAL et al., Defendants and Respondents .

No . B224409 . | (Los Angeles County Super . Ct . No . BC411018) . | June 24, 2011. | As Mod ified on Denial ofRehearing July 22, 2011.

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald M . Sohigian, Judge . Reversed withdirections.

Attorneys and Law Firms

Metzger Law Group , Raphael Metzger and Kathryn Darnell for Plaintiff and Appellant .

Proskauer Rose, Bert H. Deixler, Harold M . Brody, G. Samu el Cleaver; Jeffer Mangels Butler & M itchell, Robert Mangels,

Matthew D . Hinks; Rabinowitz , Boud in , Standard , Krinsky & Lieberman, Eric M . Lieberman and David B . Goldstein for

Defendants and Respondents.

Op inion

CROSKEY , J .

*

1 Laura Ann DeCrescenzo appeals a judgment dism issing her com plaint against Church of Scientology International

(Scientology) and Religious Technology Center (collectively, defendants) after the sustaining of demurrers without leave to

amend based on the statutes of lim itations. Plaintiff contends she has adequately pled a combination of delayed discovery ofher causes of action and a basis for equ itable estoppel precluding defendants from asserting a statute of limitation s defense.Our review of this record compels the conc lusion that plaintiff has adequately alleged that (1) she was unable to comprehend

the wrongfulness of the defendants, conduct for a period of time and that her causes of action did not accrue until she did so

and (2) even after her delayed discovery of her causes of action , the defendants, threats and intim idation caused her to delayfiling her comp laint . In addition , we reject defendants' contention that plaintiff is collaterally estopped from prosecuting heraction by a federal court judgment that equitable estoppel was inapplicable because the facts alleged in plaintiffs priorcomplaint were insufficient to demonstrate reasonable reliance on defendants' representations. We hold that her allegations

of additiona l facts in the present complaint establish a basis for reasonable reliance and such new allegations are notprecluded by the federal judgment . We therefore wil l reverse the judgment with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed a comp laint aga inst Scientology in April 2009 alleging that she began working for that organization at the ageof nine, became effectively a full-time employee at the age of ten, and later le ft her home and family in another state to workfor Scientology in California. She alleged that she married a co-worker at the age of sixteen , became pregnant, and that

WestlawNexr © 2013 Thomson Reuters. No c la im to origina l U .S . Government Works. 1

Exhibit C Page 18













DeCrescenzo v . Church of Scientology Intern., Not Reported in Cal.Rptr.3d (2011)

for reasonable reliance sufficient to support a claim of equ itable estoppel. Any deficiency in the first amended complaint as to

reasonable reliance is cured by the additional allegations in the second amended complaint . In light of the additional

allegations, the issue decided by the federal court based on the prior allegations is not identical to the issue presented here, so

collateral estoppel does not apply.4

4 Plaintiff also argues that collateral estoppe l is inapplicable for other reasons that we need not address in light of our conclusion .

5. The Judgment in Favor ofRTC Cannot Be Affirmed Based on a Purported Sham Allegation

RTC argued in support of its demurrer that the allegation in the second amended complaint that plaintiff "also worked for

Defendant, RTC" contradicted allegations in her prior complaints that she "was not employed by" RTC. RTC argued that thenew allegation was a sham , that plaintiff was bound by her prior allegations, and that the fact that she was not employed byRTC precluded each count alleged in the second amended complaint . Plaintiff argued in opposition that her current allegationthat she "also worked for" RTC differed from her current allegation that she "was employed by" Sciento logy, and that she

did not allege an employment relationship with RTC . She also argued that her current allegation that RTC "was responsiblefor and directly oversaw a number of the policies and conditions of Plaintiff s emp loyment" explained RTC's ro le

, and that

there was no inconsistency with her prior allegations.

An amended complaint that om its harmfu l factual allegations from a previous complaint, whether verified or unverified, or

alleges facts contradicting those prior allegations, without an adequate explanation for the discrepancy is regarded as a sham

pleading . A court ruling on a demurrer may take judicial notice of facts alleged in a prior complaint revealing a defect in anamended complaint, and may disregard any inconsistent allegation s in the amended complaint . (State ex rel.

Metz v . CCC

Information Services , Inc. (2007) 149 Cal.App.4th 402 , 412, 57 Cal.Rptr.3d 156 ; see Deveny v. Entropin, Inc . (2006) 139Cal.App.4th 408,425-426 , 42 Cal.Rptr.3d 807 .)

We conclude that the allegation that plaintiff "also worked for" RTC does not contradict the prior allegation that she "was notemployed by

"

RTC . These allegations are not contradictory because an employee of one company can provide services toanother company without becom ing an employee of the second company. (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486 ,492-493 , 162 Cal .Rptr. 320 , 606 P .2d 355 .) As we read the complaint, plaintiff alleges that she provided for services to RTC

and that RTC oversaw some of the policies and conditions of her emp loyment, and does not allege that RTC was her

employer. Accordingly, we conclude that the allegation that plaintiff "also worked for" RTC is not a sham and that the

sustaining of the demurrer cannot be aff irmed on this basis .

The judgment is reversed with directions to the trial court to vacate the order sustaining the demurrer to the second amended

complaint without leave to amend and enter a new order overruling the demurrer to each count. Plaintiff is ent itled to recover

her costs on appeal .

DISPOSITION

J W e Concur : KLE IN, P.J., and K ITCH ING, J .

J End of Document © 2013 Thomson Reuters. No claim to origina l U.S. Government Works.

hj

QWestlawNexr ©2013 Thomson Reuters . No claim to original U.S . Government Works.7