Church of Scientology v. Wollersheim

Page 620

49 Cal.Rptr.2d 620

42 Cal.App.4th 628, 96 Cal. Daily Op. Serv. 773,

96 Daily Journal D.A.R. 1162

CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff and Appellant, v. Lawrence WOLLERSHEIM, Defendant and Respondent.

Nos. B084686 & B086063.

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

Feb. 1, 1996.

Review Denied May 22, 1996. ^*

Eric M. Lieberman, Michael Ludwig, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, New York City, Kendrick L. Moxon, Laurie J. Bartilson, and Moxon & Bartilson, Los Angeles, for Plaintiff and Appellant.

Hagenbaugh & Murphy, Daniel A. Leipold, Orange and Mark Goldowitz, Oakland, for Defendant and Respondent.

John C. Barker, San Francisco, Elizabeth Pritzker, Gray, Cary, Ware & Freidenrich and Guylyn R. Cummins, San Diego, Parker, Chapin, Flattau & Klimpl and Herbert L. Rosedale, New York City, as Amici Curiae.

ALDRICH, Associate Justice.

INTRODUCTION

Plaintiff and appellant Church of Scientology (the Church) appeals from the order of the trial court granting the motion of defendant and respondent Lawrence Wollersheim (Wollersheim) pursuant to Code of Civil Procedure section 425.16 (hereinafter, section 425.16) to dismiss the Church's complaint against him. The dismissed complaint attacked the judgment Wollersheim had obtained against the Church in a prior action (the prior action). ¹ Section 425.16 was adopted in 1992 to deter and prevent so-called SLAPP (Strategic Lawsuit Against Public Participation) suits.

The Church contends the trial court erred in granting the motion because its action against Wollersheim is not a SLAPP suit as defined by section 425.16. The Church also contends the Church demonstrated the probability of the success of its complaint and therefore the motion should have been denied in any event. Furthermore, the Church contends, the amount awarded for attorney fees was excessive.

We find the motion to dismiss was properly granted and substantial evidence supports the award of attorney fees. We therefore affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

The Prior Action

The procedural history of this litigation spans more than 15 years. Wollersheim filed his original action against the Church on July 28, 1980. Wollersheim, a former member of the Church, had alleged the Church intentionally and negligently inflicted severe emotional injury on him through certain practices, including "auditing," "disconnect," and "fair game."

During the pendency of that lawsuit Scientology affiliates (Scientology) sued Wollersheim, his counsel, and his expert witnesses in the prior action in a RICO action in the Federal District Court in Los Angeles. Thereafter Scientology petitioned the Ninth Circuit Court of Appeals to disqualify the entire United States District Court for the Central District of California. In an unprecedented ruling the Ninth Circuit struck the motion from its records. Thereafter the RICO action was dismissed by the court. Scientology once again appealed to the Ninth Circuit Court of Appeals which affirmed the dismissal. (Religious Technology Center v. Wollersheim (9th Cir.1992) 971 F.2d 364; cert. den. (1987) 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 187.)

In March 1986, Judge Ronald Swearinger, the superior court judge assigned as the trial judge in the prior action, ordered the Church to produce its "auditing" and "pre-clear" files on Wollersheim. Thereafter the Church sued Judges Alfred Margolis (who had made previous pretrial rulings in the case) and Swearinger and the entire Los Angeles Superior Court in Federal District Court. (Church of Scientology v. Superior Court, CV 86-1362ER.) This suit was dismissed by the court in November 1986.

After much discovery and several petitions for writs of mandate to the Court of Appeal brought by the Church, the prior action went to trial in superior court on February 18, 1986, before Judge Swearinger. After five months of trial the jury returned its verdict in favor of Wollersheim on July 22, 1986. It assessed compensatory damages in the sum of $5 million and punitive damages in the sum of $25 million against the Church. On August 8, 1986, the Church filed its motion for new trial and for judgment notwithstanding the verdict both of which were denied on September 18, 1986 after three days of oral argument. The Church thereafter appealed to the Second District Court of Appeal which reversed as to the cause of action for negligent infliction of emotional injury, affirmed the judgment as to the cause of action for intentional infliction of emotional injury and modified the judgment to reduce the compensatory damages to $500,000 and the punitive damages to $2 million. (Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d 872, 260 Cal.Rptr. 331.) The Church then petitioned the California Supreme Court for review which was denied. Upon the Church's petition for a writ of certiorari, the United States Supreme Court vacated the judgment of the Court of Appeal and remanded to that court for reconsideration in light of the Supreme Court's ruling in Pacific Mutual Life Insurance Co. v. Haslip (1991) 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1. (Church of Scientology of California v. Wollersheim (1991) 499 U.S. 914, 111 S.Ct. 1298, 113 L.Ed.2d 234.)

On remand the Court of Appeal adhered to its original decision, affirming the judgment subject to a remittitur. (Wollersheim v. Church of Scientology (1992) 6 Cal.Rptr.2d 532.) Once again the Church petitioned the California Supreme Court for review and on July 23, 1992, review was granted. However, on July 15, 1993, following the United States Supreme Court's decision in TXO Production Corp. v. Alliance Resources Corp. (1993) 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366, the California Supreme Court dismissed its prior grant of review. The Church's subsequent petition for writ of certiorari to the United States Supreme Court was denied on March 7, 1994.

The Instant Litigation

While its appeal in the prior action was pending before the California Supreme Court, the Church filed this action on February 16, 1993, seeking to set aside the judgment Wollersheim had obtained against the Church on July 22, 1986. The complaint alleged that newly discovered evidence demonstrated that the trial judge appeared to, or did, harbor actual malice and prejudice against the Church at the time of the trial and may have conveyed prejudicial information to the jury, either directly or indirectly.

The "newly discovered evidence" alleged in the complaint consisted of the following: Post-trial interviews with jurors by the Church's attorneys revealed that "the jurors 'believed' that they were being followed by members of the [Church]." Juror Terri Reuter stated that "the jury had been told by 'unnamed court personnel,' whom she refused to identify, that during the trial, Judge Swearinger's tires had been slashed, and that his dog had been found dead. She said that the jurors attributed these actions to unknown and unnamed members of the [Church]." The complaint stated that Church counsel suspected that private investigators hired by Wollersheim's counsel "were responsible for 'dirty tricks' designed to implicate the Church, and prejudice the jury." Additionally, the complaint alleged that, because Judge Swearinger refused "to allow[ ] discovery into the jurors in order to establish the extent and source of the taint," "[t]he source of the jury's bias thus remained a mystery for five years."

The complaint continued, "Finally, in an interview with William W. Horne, a reporter employed by The American Lawyer magazine which took place in 1992, Judge Swearinger revealed that he maintained a condition of mind of unfavorable bias against the Church during the trial of the Prior Action. According to Horne, Judge Swearinger stated that his dog had drowned in the family swimming pool during the trial of the Prior Action, and that the judge believed that he had been followed when in his car throughout the trial. The judge informed Horne that, while he was in possession of no evidence to corroborate the suspicions he harbored, he nonetheless felt that members of the Church of Scientology were responsible for such actions." On March 19, 1992, Horne revealed Judge Swearinger's statements to the Church's attorneys Eric M. Lieberman and Jonathan Lubell. "For the first time, the Church and its attorneys suspected that the source of infection of the jury was the judge himself."

The complaint continued, alleging Horne provided further details of the judge's statements to the Church's attorney, Michael L. Hertsberg, on March 23, 1992. Horne allegedly stated the judge told him the judge's veterinarian told him the dog was old and had died of a heart attack, yet the judge still felt the dog had fallen or been pushed into the pool. Also, Horne stated the judge had said he felt the Church was somehow responsible for the dog's death. The judge also told Horne that he had been followed "a few times" in his car during the trial and he had assumed the Church was responsible for these actions.

Horne's article in the July/August 1992 issue of The American Lawyer quoted Judge Swearinger as saying:

" 'I was followed [at various times] throughout the trial ... and during motions for a new trial.... All kinds of things were done to intimidate me, and there were a number of unusual occurrences during that trial. My car tires were slashed. My collie drowned in my pool. But there was nothing overtly threatening, and I didn't pay any attention to the funny stuff.' " (Horne, The Two Faces of Scientology (July/Aug. 1992) Am.Law. p. 77.)

Upon information and belief, the Church alleged that the judge described these incidents to court personnel during the trial and that court personnel revealed them to the jurors, "resulting in a jury as biased as the judge."

The complaint referred to other occasions in which the judge made statements to others regarding the Church. In April 1992,...