Doe 2 v. Superior Court

• Decision Date: 29 September 2005
• Docket Number: No. B179588.,B179588.
• Citation: 132 Cal.App.4th 1504,34 Cal.Rptr.3d 458
• Court: California Court of Appeals Court of Appeals
• Parties: DOE 2, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent; Mark Calkins et al., Real Parties in Interest.

34 Cal.Rptr.3d 458

132 Cal.App.4th 1504

DOE 2, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent Mark Calkins et al., Real Parties in Interest.

No. B179588.

Court of Appeal, Second District, Division 8.

September 29, 2005.

Callahan, McCune & Willis and Scott S. Blackstone, Tustin, for Petitioner.

No appearance for Respondent.

Law Offices of Freberg & Associates and Katherine K. Freberg, Irvine, for Real Parties in Interest.

COOPER, P.J.

This writ proceeding concerns a discovery dispute in an action brought against four local United Methodist churches by three persons who allege they were sexually abused as minors in the 1970's by a probationary clergy member of one of the churches. The trial court granted motions by the plaintiffs to compel one of the churches to provide further responses to interrogatories and to produce documents in response to a production request. In doing so, the court rejected the church's claims based on the clergy-penitent privilege (Evid.Code, § 1034),¹ the privacy rights of third parties, and the attorney-client privilege.

We conclude that the trial court abused its discretion in certain respects and that it failed to properly analyze the church's clergy-penitent privilege assertion. Accordingly, we grant the petition in part and direct the trial court to reconsider the motions in accordance with the views expressed herein.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Lawsuit.

Real parties in interest Mark Calkins, Robert Pugh and Todd Stocking filed this action in October 2003 against four United Methodist churches: Doe 1, a Methodist church in West Sacramento; Doe 2, a Methodist church in Walnut Creek and the petitioner in this writ proceeding; Doe 3, a Methodist Church in Pasadena; and Doe 4, a Methodist church in Long Beach.² In the complaint, plaintiffs allege that, while attending the Methodist Youth Fellowship at the Long Beach church, they were sexually abused by Gary Allen Carson-Hull³ who, at the time, was a probationary clergy member of that church, and was working toward full clergy membership. The alleged sexual abuse began in the mid-1970's when the plaintiffs were approximately 12 to 13 years old, and lasted until approximately 1979.

The complaint alleges that in the early 1970's (i.e., before plaintiffs were abused), Carson-Hull served as "the youth director and/or youth minister" at the Walnut Creek church, where he molested minor members of that church and/or students from entities associated with the church. Plaintiffs claim the Walnut Creek church knew or had reason to know of this abuse, yet it failed to take steps to ensure that Carson-Hull was not placed in an environment where he would come in contact with children.

The complaint alleges that after the abuse occurred, the Walnut Creek church conspired with the Long Beach church to move Carson-Hull to Southern California. According to the complaint, the Walnut Creek church informed the Long Beach church about Carson-Hull's molestations in Northern California and requested that he be assigned to the Long Beach church. The Long Beach church agreed to the request. At the same time, the complaint alleges that the Walnut Creek church made "misleading half truth[]" statements to the Long Beach church that "Carson-Hull was a minister and/or clergy member fit for employment."

Carson-Hull was arrested in May 2002 in connection with alleged abuse of victims in Long Beach. The pastor of the Walnut Creek church — Renae Extrum Fernandez — stated in a declaration submitted in connection with the discovery disputes at issue in this writ proceeding that she first learned of the allegations against Carson-Hull after his arrest in 2002. Pastor Fernandez organized a local response committee "to reach out to persons affected by Carson Hull and also to address issues relating to potential litigation involving victims of the reported abuse." Pastor Fernandez also stated in her declaration: "I . . . made myself available to persons, including members of the United Methodist Church, who desired to seek spiritual and religious counseling and healing concerning Carson-Hull. My intent was that any communications to me regarding Carson Hull as part of this spiritual and religious outreach would be treated as confidential communications that would be protected from disclosure in my capacity as a pastor of the church." In addition, Pastor Fernandez stated that she "held a weekend retreat to provide religious and spiritual healing to persons affected by Gary Carson-Hull." She provided no additional information regarding this retreat.

Attached to Pastor Fernandez's declaration was a letter dated May 28, 2002, which was apparently distributed to persons attending the church (hereafter referred to as the "outreach letter"), in which Pastor Fernandez discussed the Carson-Hull case and Carson-Hull's connection to the Walnut Creek church. In relevant part, the letter stated:

"I want everyone to know that my heart and my office are open to hear the concerns of anyone who was part of our fellowship at that time [i.e., while Carson-Hull was with the Walnut Creek church].[¶] In the interest of that goal, I hope to correspond with everyone who can be identified as youth and adult participants in our youth ministry from 1973-1975. If you can assist me in locating friends and family who have moved away from our fellowship in the intervening years, I would be most grateful. Additionally, I am assembling a response team that will lead those who choose to participate in a process for healing. [¶] . . . ¶] The time for whispers is past. It is time for clear and compassionate conversation with one another and with our God. Please join me in prayer for everyone affected by this news. As always, I will keep your response in pastoral confidence. Also, as always, I encourage anyone with any knowledge of wrongdoing in any circumstance to contact the appropriate law enforcement and legal authorities. You have my complete support in so doing."

According to a July 2002 article in the Contra Costa Times (i.e., about two months after Pastor Fernandez wrote her outreach letter), Pastor Fernandez stated that she had spoken with about two dozen people who were involved in the youth ministry program, but "she declined to discuss whether any possible victims have emerged, citing confessional confidentiality."⁴

2. The Discovery Dispute.

This writ proceeding concerns a discovery dispute regarding (1) three interrogatories, and (2) five requests for production of documents.⁵

a. The Interrogatories.

In March 2004, the plaintiffs served form interrogatories on the Walnut Creek church. This petition concerns three interrogatories that essentially asked for the names, telephone numbers and addresses of persons who have any information concerning the "incident," including persons who provided statements to the church about the incident.

In its initial response to the interrogatories, the Walnut Creek church raised vagueness, as well as attorney-client and attorney work product privilege objections to the interrogatories.⁶ The church did not raise any privacy or clergy-penitent privilege objections.

The parties then had some "meet and confer" communications. One letter exchanged by counsel for the parties during this time seemed to indicate that three victims had come forward and advised the Walnut Creek church that they had been abused by Carson-Hull. However, the church's counsel expressed concern over the privacy rights of these third parties. In light of these concerns, counsel for the parties discussed the possibility of sending out a notice to alleged victims pursuant to Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658, 125 Cal.Rptr. 553, 542 P.2d 977 (Valley Bank).⁷

In late August 2004, the Walnut Creek church served supplemental responses to interrogatories in which it raised attorney-client, attorney work product and privacy objections to the interrogatories in question.

In a letter from counsel for the Walnut Creek church that accompanied the supplemental responses, counsel stated that Pastor Fernandez had confirmed the information she received was provided to her "confidentially as the pastor of the church." Therefore, the church was now objecting to disclosure of the information based on the clergy-penitent privilege. The letter seemed to say that the church was also objecting to the sending of a letter as described in Valley Bank, supra, 15 Cal.3d 652, 125 Cal.Rptr. 553, 542 P.2d 977, because "correspondence to persons requesting disclosure of the information they entrusted to Pastor Fernandez confidentially would breach the relationship of trust and confidence between Pastor Fernandez and these individuals."⁸

Ultimately, plaintiffs filed a motion to compel further responses to interrogatories. In response to the privacy contention, plaintiffs noted that the right of privacy may be abridged to accommodate a compelling interest. They maintained that facilitating the ascertainment of truth in a legal proceeding is such an interest. Plaintiffs also claimed that some of the people who provided information to the church may not be victims and suggested that such persons have no privacy rights to protect. As for the attorney-client and attorney work product privileges, plaintiffs claimed they were seeking information provided to the church in response to an outreach program, not statements or information provided to the church's counsel.

In its opposition to the motion to compel, the Walnut Creek church argued that it should not be required to provide information about Carson-Hull's abuse of persons while at Walnut Creek if the church obtained that information after the plaintiffs were abused, because (1) providing the information would violate the privacy rights of third parties, (2) providing the information would violate the clergy-penitent privilege, and (3) the information is...