Lopez v. Watchtower Bible & Tract Soc'y of N.Y., Inc.

• Court: California Court of Appeals
• Writing for the Court: HALLER, Acting P.J.
• Citation: Lopez v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 246 Cal.App.4th 566, 201 Cal.Rptr.3d 156 (Cal. App. 2016)
• Decision Date: 14 April 2016
• Docket Number: D066388
• Parties: Jose LOPEZ, Plaintiff and Respondent, v. WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., Defendant and Appellant.

246 Cal.App.4th 566

201 Cal.Rptr.3d 156

Jose LOPEZ, Plaintiff and Respondent,

v.WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., Defendant and Appellant.

D066388

Court of Appeal, Fourth District, Division 1, California.

Filed April 14, 2016

Review Denied July 27, 2016

Williams Iagmin and Jon R. Williams for Defendant and Appellant.

The Zalkin Law Firm, Irwin M. Zalkin and Devin M. Storey ; Pine & Pine, Norman Pine and Scott Tillett, for Plaintiff and Respondent.

HALLER, Acting P.J. Jose Lopez sued the national Jehovah's Witnesses organization, the Watchtower Bible and Tract Society of New York, Inc. (Watchtower), alleging his Bible instructor sexually abused him in 1986 when he was a child. Lopez asserted several legal theories, including failure to warn, negligent supervision, and negligent hiring/retention. After contentious discovery disputes, the court issued two discovery orders against Watchtower: (1) compelling the deposition of an individual (Gerrit Lösch) who the court found was a "managing agent" of Watchtower and (2) ordering the production of documents in Watchtower's files pertaining to other perpetrators of child sexual abuse. When Watchtower failed to comply with these orders, the court granted Lopez's motion for monetary and terminating sanctions, struck Watchtower's answer, and entered Watchtower's default.¹

On appeal, Watchtower challenges the validity of the discovery orders and contends the court abused its discretion in failing to impose lesser sanctions. We reject Watchtower's challenges to the document production order, but conclude the court erred in ordering Watchtower to produce Lo¨sch for his deposition. The factual record does not support the court's finding that Lösch was Watchtower's managing agent and therefore the court erred in sanctioning Watchtower for Lösch's nonattendance at the deposition. (See Code Civ. Proc., §§ 2025.280, 2025.450.)² We additionally conclude that under the particular circumstances of this case, the court erred in issuing terminating sanctions as the initial remedial measure without first attempting to compel compliance with its discovery orders by using lesser sanctions or by imposing evidentiary or issue sanctions.

Accordingly, we reverse the order compelling the Lösch deposition and the entry of default based on the terminating sanctions. We remand for the court to consider the appropriate sanctions for Watchtower's violation of the document production order. The initial measure should be a remedy that is less onerous than a terminating sanction.

FACTUAL AND PROCEDURAL BACKGROUND

A. Summary of Allegations

The Jehovah's Witnesses is a religion with more than 1.2 million members in about 13,777 congregations in the United States. During the relevant times, Watchtower supervised the local congregations and was responsible for the religion's policies and administrative matters. Jehovah's Witnesses congregations are comprised of elders (spiritual leaders responsible for congregation governance), ministerial servants (performing administrative tasks), and various levels of baptized members, including publishers (rank-and-file members). As stipulated by the parties, congregation elders serve as agents for Watchtower.

In June 2012, 34–year–old Lopez filed a complaint against Watchtower and the Linda Vista Spanish Congregation of Jehovah's Witnesses (Linda Vista congregation), seeking damages for sexual abuse committed by Gonzalo Campos in 1986 when Lopez was about seven years old. In his amended complaint, Lopez alleged that in the mid–1980's, Lopez's mother was a baptized Jehovah's Witnesses member associated with the Linda Vista congregation, and received Bible study instruction from a congregation elder, Joel Munoz. Munoz recommended to Lopez's mother that Lopez should be receiving Bible study instruction and she "should approach [Campos] because he was very good with children." Following this direction, Lopez's mother spoke with Campos and Campos began giving lessons to Lopez. After Campos had given Lopez several Bible study lessons, and in the context of a Bible study lesson, Campos sexually molested Lopez.

Lopez reported the abuse to his mother, who reported it to Elder Munoz and his wife. The next day, several elders from the Linda Vista congregation came to Lopez's home and spoke to Lopez's mother about the abuse. One of the elders asked Lopez to show him, on a teddy bear or doll, where Campos had touched him. Soon after, Lopez's family left the congregation and Lopez had no additional contact with Campos.

At the time of the abuse, Campos was directed by Linda Vista congregation leaders to provide Bible instruction to Lopez and other minors. In giving the Bible study lessons to minors, Campos filled out a form for each study session, identifying the Bible study student, address, and date of the lesson, and submitted each form to a congregation elder.

About four years earlier, in approximately 1982, Campos had allegedly sexually molested another young boy from the Linda Vista congregation. Soon after the abuse, this earlier victim reported the abuse to his mother, who reported the abuse to two church elders. When questioned by the elders, Campos confessed to acting inappropriately. The elders nonetheless continued to hold Campos out as safe to be around children, and affirmatively recommended him to serve as a Bible study instructor.

Campos had been a member of the Linda Vista congregation since about 1979. In 1987, Campos became associated with another Jehovah's Witnesses congregation (La Jolla Spanish Congregation of Jehovah's Witnesses, also known as Playa Pacifica Spanish Congregation of Jehovah's Witnesses (La Jolla congregation)). In about 1988, La Jolla congregation elders appointed Campos to a ministerial servant position, and Watchtower approved the appointment. While serving as a ministerial servant, Campos frequently preached at the Linda Vista and La Jolla congregations, and continued to teach Bible study to Jehovah's Witnesses children. In 1993, Watchtower approved Campos's appointment as elder of the La Jolla congregation, and he was later appointed secretary of the congregation, placing him on the congregation's governing "Service Committee."

Lopez alleged that Campos sexually abused at least eight other Jehovah's Witnesses children between 1982 and 1995, including when Campos served as an elder. Some of these abuse incidents were reported to congregation elders.

Based on these allegations, Lopez's amended complaint asserted six causes of action against Watchtower and the Linda Vista congregation: negligence; negligent supervision/failure to warn; negligent hiring/retention; negligent failure to warn, train or educate; sexual battery; and sexual harassment. Lopez alleged defendants were negligent because they knew or should have known of Campos's "dangerous and exploitive propensities and/or that [he] was an unfit agent"; they allowed Campos to come into contact with Lopez without supervision; they failed to tell or concealed from Lopez and his parents that Campos had previously sexually abused minors; they failed to tell law enforcement officials that Lopez had been sexually abused, making it less likely Lopez would receive medical and mental health care and treatment; and they held out Campos to Lopez and his parents as being in good standing and trustworthy. Lopez claimed "[b]y retaining and promoting [Campos] after learning of his past sexual abuse of children, [Watchtower] ratified and authorized [Campos's] conduct." Lopez alleged "[d]efendants acted with willful and conscious disregard of the rights and safety of others by repeatedly ignoring warnings and complaints that [Campos] had committed acts of sexual abuse upon minors and allowing [Campos] to attain and retain elevated positions within the Jehovah's Witness[es] religion ... [w]here he had access to unsuspecting minors."

Lopez alleged the lawsuit was timely under California law. (See § 340.1, subds. (a), (b)(1), (2).) Lopez claimed Campos's sexual abuse resulted in "various psychological coping mechanisms" that precluded him from "ascertaining the resulting damages from that conduct, or the wrongfulness of [Campos's] conduct" and that he did not discover the "causal relationship between the molestation and adulthood psychological injuries" until April 2012.

Lopez later amended the complaint to add a punitive damage claim.

B. Discovery Disputes

1. Discovery Relating to Campos's Molestation of Others

At some point before February 2013, Lopez propounded document requests on Watchtower. The requests sought documents pertaining to written complaints and investigations concerning Campos's sexual abuse of other victims. Watchtower identified responsive documents, but declined to produce them on the basis of the First Amendment, overbreadth, clergy-penitent privilege, and third party privacy rights. Watchtower also refused to produce any documents generated after the date Lopez was allegedly abused (1986), stating the documents were not relevant or admissible, and thus not discoverable.

Lopez moved to compel the production of the documents, and the court granted the motion in part. After briefing and a hearing, the court broadly rejected Watchtower's arguments regarding scope, overbreadth, privacy, and the First Amendment. On the penitential communications privilege, the court conducted an in camera hearing, and found all but four of the withheld documents were not protected. In reviewing the documents, the court applied the rule that documents created with the knowledge they would be read by third parties were not protected by the penitential communications privilege. (See Evid.Code, § 1032.)³

2. Deposition Notices at Issue in This Appeal

Several months later, in August 2013, Lopez's counsel notified defense counsel of his intent to notice several depositions, including (1) Watchtower's person most qualified (PMQ) and (2) Gerrit Lösch, a member of a Jehovah's Witnesses entity known as the ...