Scott v. Ross

• Decision Date: 08 April 1998
• Docket Number: No. 96-35050.,96-35050.
• Citation: 140 F.3d 1275
• Parties: Jason SCOTT, Plaintiff-Appellee, v. Rick ROSS, aka Rickey Allen Ross; Mark Workman; Charles Simpson, Defendants, and Cult Awareness Network, a California Non-Profit Corp., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

140 F.3d 1275

Jason SCOTT, Plaintiff-Appellee, v. Rick ROSS, aka Rickey Allen Ross; Mark Workman; Charles Simpson, Defendants and Cult Awareness Network, a California Non-Profit Corp., Defendant-Appellant.

No. 96-35050.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 11, 1997.

Decided April 8, 1998.

Paul Lawrence and Ramona M. Emerson, Preston, Gates & Ellis, Seattle, Washington, for defendant-appellant.

Eric M. Lieberman, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, New York City, for plaintiff-appellee.

David J. Bardin, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, for amici curiae American Family Foundation, HALT — an Organization of Americans for Legal Reform, Jews for Judaism, and Watchman Fellowship on Agency, Vicarious Liability and First Amendment Issues.

Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, District Judge, Presiding. D.C. No. CV-94-00079-JCC.

Before: SCHROEDER and BEEZER, Circuit Judges, and SCHWARZER,^* Senior District Judge.

Opinion by Judge BEEZER; Dissent by Judge SCHWARZER.

BEEZER, Circuit Judge:

Defendant-appellant Cult Awareness Network ("CAN") appeals the jury's verdict finding CAN liable for conspiracy and negligence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

In 1991, Kathy Tonkin and her six children joined the Life Tabernacle Church ("Life Tabernacle"), a branch of the United Pentecostal Church International. Tonkin remained a member for over a year before withdrawing. She urged her sons to withdraw from Life Tabernacle, but her three oldest sons, appellant Jason Scott ("Scott"), Thysen and Matthew, refused. At the time Scott was 18 years of age, Thysen, 16 and Matthew, 13.

Tonkin believed Life Tabernacle had a destructive effect on her sons and sought help in having them removed from the church's influence. Tonkin contacted Shirley Landa after a referral from the Seattle Community Service hotline. Landa was involved in various "anti-cult" activities and worked as CAN's Washington state "contact." A "contact" is "an unpaid volunteer who is available in given areas to speak to members of the public on behalf of CAN." CAN has described itself as "a national nonprofit organization founded to educate the public about the harmful effects of mind control as used by destructive cults." CAN operates nationally through volunteer contacts and affiliates. CAN has only four paid staff members, a full-time Executive Director and three parttime staff.

Landa referred Tonkin to Rick Ross, whom Tonkin hired to "deprogram" her three sons. Although the record is somewhat unclear as to the specific nature or origin of Landa's relationship with Ross, it is clear that Landa was aware Ross performed involuntary deprogrammings because she had seen Ross do so on the television program "48 Hours." Ross was known to, and received referrals from, other CAN members as well.

Ross performed "successful" involuntary deprogrammings on Thysen and Matthew, who were minors and therefore within their mother's control. Tonkin, Landa and Ross knew that to deprogram Scott would be more difficult legally because Scott was 18 years of age. Nonetheless, Ross, with the aid of defendants Simpson, Workman and Rotfroff, attempted to deprogram Scott. They abducted Scott and held him captive for five days, during which Ross "debated" Life Tabernacle's teachings with Scott. Tonkin planned to send Scott to a deprogramming rehabilitation center in Ohio after Ross completed the deprogramming. After several days, Scott feigned acceptance of Ross' positions, escaped and filed this suit.

Scott claimed Ross, Simpson, Workman, Rotfroff and CAN conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985(3). Scott also brought state law tort claims for negligence and outrage. Scott's claim against CAN was based upon CAN's vicarious liability for the acts of its alleged agent, Landa.

Rotfroff settled with Scott before trial. After a six-day trial, a jury found the remaining defendants liable for civil rights violations and negligence and awarded Scott $875,000 in compensatory damages and $4 million in punitive damages. The jury allocated 10% of the negligence liability and $1 million in punitive damages against CAN. CAN appeals.

CAN raises a variety of arguments on appeal. CAN principally focuses on the issue of Landa's agency: (i) CAN contends that the district court's jury instructions failed to follow Washington's agency law, and (ii) CAN argues that the evidence was insufficient to impose liability because the evidence demonstrated neither that Landa acted as CAN's agent nor that Landa acted within the scope of any alleged authority. CAN claims that the imposition of liability based upon Landa's acts violates CAN's First Amendment rights. CAN contends that liability may not be imposed on it pursuant to 42 U.S.C. § 1985(3). CAN challenges the admission of the testimony of Scott's expert, Dr. Anson Shupe. We reject each of CAN's arguments.

II

CAN argues that the district court's agency instruction did not accurately describe Washington state agency law. We review a district court's formulation of civil jury instructions for an abuse of discretion. See Fikes v. Cleghorn, 47 F.3d 1011, 1013 (9th Cir.1995).

In Washington, a principal is liable for the negligent acts of its agent when the agent acts on behalf of the principal and within the scope of employment. See Roletto v. Department Stores Garage Co., 30 Wash.2d 439, 191 P.2d 875, 877 (1948) (a principal's liability rests on a showing "that the relation of master and servant exists between the person at fault and the one sought to be charged for the result of a wrong; and the relation must exist at the time, and in respect to the particular transaction out of which the injury arises."). If the agent is not acting on the principal's behalf at the time of the act in question, then the principal is not liable for that act. Id. This rule applies to agents who are volunteers. See Abel v. Firs Bible and Missionary Conference, 57 Wash.2d 853, 360 P.2d 356, 358 (1961).

The district court's agency jury instructions properly described these principles. CAN's argument that the jury instructions did not allow the jury to conclude that Landa might be an agent of CAN for some purposes, but not for the purposes of Scott's deprogramming, is not persuasive. The district court's instructions, read as a whole, properly address CAN's concern. The district court instructed:

The defendant Cult Awareness Network is sued as a principal. The plaintiff claims that Shirley Landa was acting as the Cult Awareness Network's agent in making the referral of Rick Ross to Kathy Tonkin. CAN denies that Shirley Landa was acting as CAN's agent and that Ms. Landa was at the time she made the referral acting within the scope of her authority.

If you find that Shirley Landa was the agent of CAN and was acting within the scope of authority, then any act or omission of Ms. Landa was the act or omission of CAN. If you find Ms. Landa was not acting within the scope of authority as CAN's agent, then you must find for CAN.¹

The district court's reference to CAN's theory, coupled with the ensuing instruction requiring a showing that Landa "was acting within the scope of her authority," accurately states Washington agency law. These instructions differ only slightly from CAN's proposed instruction which reads: "[CAN] can be liable to Scott only if Shirley Landa was acting as its agent when she provided Scott's mother with the name and telephone number of Rick Ross."² The district court properly instructed the jury.

III

CAN argues that the evidence was insufficient to impose liability on CAN because the evidence failed to demonstrate that Landa acted as CAN's agent and that she acted within the scope of her authority. We review de novo a district court's denial of a motion for judgment as a matter of law. McClaran v. Plastic Indus., Inc., 97 F.3d 347, 354 (9th Cir.1996). Judgment as a matter of law is proper if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury's. Acosta v. City & County of San Francisco, 83 F.3d 1143, 1145 (9th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 514, 136 L.Ed.2d 403 (1996). We review a district court's denial of a motion for a new trial for an abuse of discretion. Wharf v. Burlington Northern R.R. Co., 60 F.3d 631, 637 (9th Cir.1995).

CAN may be held liable for Landa's acts if those acts were on CAN's behalf and within the scope of Landa's agency. E.g., Roletto v. Department Stores Garage Co., 30 Wash.2d 439, 191 P.2d 875 (1948); Thompson v. Everett Clinic, 71 Wash.App. 548, 860 P.2d 1054, 1056 (1993) ("In order to hold an employer vicariously liable for the tortious acts of its employees, it must be established that the employee was acting in furtherance of the employer's business and that he or she was acting within the course and scope of employment when the tortious act was committed."), review denied, 123 Wash.2d 1027, 877 P.2d 694 (1994). In addition, "[a]gency requires that both parties consent to the relationship and that the principal exercise control over the agent." Nordstrom Credit, Inc. v. Department of Revenue, 120 Wash.2d 935, 845 P.2d 1331, 1335 (1993). Agency may be proven with circumstantial evidence. Griffiths v. Big Bear Stores, Inc., 55 Wash.2d 243, 347 P.2d 532, 535 (1959) (citing Smith v. Leber, 34 Wash.2d 611, 209 P.2d 297, 301 (1949)). Our review of the record discloses evidence that supports the jury's finding of agency and that meets the district court's instruction.

The evidence demonstrates that Landa, who referred Tonkin to Ross, and who was aware of the plan to deprogram Scott, was a CAN contact person. Landa testified that she was designated as a CAN contact person for Washington state and had...