Terry v. Davis Community Church

• Decision Date: 18 August 2005
• Docket Number: No. C047526.,C047526.
• Citation: 131 Cal.App.4th 1534,33 Cal.Rptr.3d 145
• Court: California Court of Appeals Court of Appeals
• Parties: George TERRY et al., Plaintiffs and Appellants, v. DAVIS COMMUNITY CHURCH et al., Defendants and Appellants.

33 Cal.Rptr.3d 145

131 Cal.App.4th 1534

George TERRY et al., Plaintiffs and Appellants, v. DAVIS COMMUNITY CHURCH et al., Defendants and Appellants.

No. C047526.

Court of Appeal, Third District.

August 18, 2005.

Certified for Partial Publication.^*

Law Office of Robert A. Carichoff and Robert A. Carichoff for Plaintiffs and Appellants.

Ishikawa Law Office and Brendon Ishikawa, Davis; Law Offices of Poulos & Fullerton and Joan Poulos, Davis, for Defendants and Appellants.

SIMS, J.

Plaintiffs George Terry and Wendy Terry allege they were falsely accused of having an inappropriate sexual relationship with a minor female in their work as church youth group leaders. Plaintiffs appeal from a judgment and attorney's fee award, following the granting of a motion to strike the complaint as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure section 425.16,¹ filed by defendants Davis Community Church, affiliated with United Presbyterian Church in the USA (the Church), Pastor Mary Lynn Tobin, and Church leaders/affiliates Lynn DeLapp, Gary Albertson, Michael Coleman, and Sandra Lommasson. Plaintiffs contend this is not an anti-SLAPP case because (1) the lawsuit does not arise from acts in furtherance of the right to petition or free speech regarding a public issue, and (2) plaintiffs will probably prevail on the merits. Defendants cross-appeal from the amount of attorney's fees awarded to them.

In the published portion of the opinion, we shall conclude the trial court properly granted the anti-SLAPP motion. In the unpublished portion, we affirm the trial court's award of attorney's fees and award defendants their reasonable fees for defending against the appeal. We shall therefore affirm the judgment and attorney's fee award and deny the cross-appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2004, plaintiffs filed a complaint for (1) libel, (2) slander, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) preliminary injunction and permanent injunction.

The first amended complaint alleged as follows:

Wendy Terry was employed by the Church as Minister with Youth, until she resigned on February 10, 2004. George Terry assisted her.

The libel count alleged defendants published a false report on February 19, 2004, and twice on February 22, 2004, stating (1) George Terry was a sexual predator who engaged in an inappropriate sexual relationship with a minor female Church member, and (2) Wendy Terry was involved in the relationship. The report was read by over 100 Church members and non-member parents of youths. An anonymous source mailed fliers to plaintiffs' neighbors.

The slander count alleged that defendants reiterated the report's contents, said plaintiffs were "liars" and needed therapy, and said George Terry was "delusional."

The third and fourth counts alleged intentional and negligent infliction of emotional distress based on the foregoing allegations. The fifth count sought to enjoin defendants from further publications.

The trial court denied plaintiffs' ex parte application for a preliminary injunction.

On May 13, 2004, defendants filed a section 425.16 motion to strike the complaint because it arose from acts protected under free speech and petition rights guaranteed by the federal and state Constitutions, and plaintiffs were not likely to prevail on the merits. The motion attached as an exhibit the confidential report (the report) of the Church governing body's investigative committee, which stated it was written to the Church's "Session" (governing body) as a report of an investigation prompted by a formal complaint made on February 8, 2004, by parents of a Church youth group member, pursuant to the Presbyterian Church's constitution. The report said plaintiffs' resignation and withdrawal from Church membership on February 12 obviated the need for a church trial, but the committee believed the charges would have been sustained in a church trial.

The report included the following statements:

In December 2003, Pastor Tobin spoke with plaintiffs about the insubordinate tone of their postings on the youth group website and about her observations that plaintiffs were focusing an inordinate amount of attention on a particular youth group member (the girl). (A police report, which found insufficient evidence of a crime, gave the girl's age as 16.) On February 2, 2004, the girl's parents and the pastor told plaintiffs not to spend so much time with the girl. The parents later found files of computer correspondence between their daughter and George Terry. Based on these documents (50 single-spaced pages of e-mails and more than 80 single-spaced pages of on-line "chat," over a two-month-plus period), the girl's parents made a formal complaint to the Church on February 8, 2004.

Some examples of 34-year-old George Terry's communications to the girl, quoted verbatim in the report, are:

1. "[Y]ou being at home was just so right . . . like confirmation that you are supposed to be a part of my life. but here were my most favorite parts of that night: hugging you in the living room. getting to hold your hand (or parts of it [smiley face drawing]) under the blanket. you resting your head on my shoulder and me getting to kiss your head. driving home and holding your hand. [¶] btw [by the way], i should say something about the `blanket thing'. i don't know how you felt/feel about it, but even if it was a bit secretive, i really liked being able to rest my hand on your leg and hold your hand. i guess you and i don't really talk too much about the hand-holding and the other physical contact . . . for me, i get a whole lot out of holding your hand, or rubbing your back, or whatever . . . being with you is wonderful. being next to you is wonderfuller. but, perhaps because of the intentionality of the contact, holding your hand, rubbing your back, things like that, are wonderfullest. does that make sense? i don't want to over-analyze and kill something special, but i wanted to tell you about it. those moments are always the ones that stick out most to me in my remembrance of times with you . . . because they're not `accidental displays of affection.'"

2. "i don't want you to freak out about me being sad that i don't get to spend as much time as i'd like around you . . . you would freak out if you knew how much time i actually wanted to be around you!"

3. "i love you so much . . . and i know that you may never truly experience from me what that really means; i know i can never bring you as much joy as much happiness, as much a sense of being loved as you brought me. i wish i could. but i'm still dreaming . . . and who knows? maybe some of my other dreams for you — for us — will come true. i love you."

4. "[W]endy asked you for a kiss. i talked to her afterward about how that made me feel again this sense of loss . . . not that i would ask you to kiss me; i mean, that's almost a special prerogative that wendy gets. it just pointed up to me, yet again, that i am so limited in what i can do with you. . . ."

5. After the February 2 meeting with the girl's parents, George Terry wrote to the girl that "on the other side of the meeting, everything is good, right? very good. no matter how the meeting went. because ultimately, the meeting means, meant nothing. you know that i love you . . . absolutely, fully, in every way, and unconditionally. and because it is so absolute and unconditional, there is nothing that can change that — except to make my love for you even more full. and you know that i need you in my life. and i always will. love you and need you. always. i love you so much [girl's name] — your everlasting moon."

6. An undated communication said: "i love you so much . . . and i don't want to lose you. i am sorry if it might disappoint you that i will lie a little to keep you in my life . . . i j[u]st know that for mary lynn [Tobin] that would mean that i am inappropriate with you. and what's so maddening is that on [day before the girl's 18th birthday], it will be the same as today for them but somehow, magically on [day of the girl's 18th birthday] i will be able to be alone with you or talk to you on the phone or spill my deepest secrets to [you] (although i will continue to do the last as long as you let me). i love you with all that i am, and will always."

The report said it was the "opinion" of the investigative committee that George Terry's correspondence to the girl "describes a trajectory of increasing physical contact, from hugs to back rubs to holding hands with George's hand on the complainants' daughter's leg under a blanket." The committee further opined George Terry's correspondence described a pattern of increasing intimacy in the tone of the language, including counting the hours until he could see her, arranging meetings or phone conversations, hoping he would get to sleep near her at a youth event so he could hear her breathing. The committee also opined George Terry's correspondence showed a pattern of increasing secretiveness and a pattern of disobedience and defiance of directives concerning his relationship with the girl.

The report related plaintiffs' response to the complaint of the girl's parents, as follows: Plaintiffs agreed they made serious errors in judgment. George Terry acknowledged he was the author of the written correspondence to the girl, and some of the messages were inappropriate in choice of language. Wendy Terry acknowledged she was fully aware of George's activities. Plaintiffs insisted their intentions were good, and there was no inappropriate physical conduct or sexual misconduct. They viewed themselves not as mentors of the youths, but as equals. Plaintiffs asserted their conduct with the girl was an effort to restore what they perceived to be the girl's low self-esteem.

The report noted Wendy Terry tendered her resignation on February 10, 2004. On February 12, 2004, plain...