DeCrescenzo v Scientology Opposition to Motion to Compel Reply (Feb 2013).PDF

7/29/2019 DeCrescenzo v Scientology Opposition to Motion to Compel Reply (Feb 2013).PDF

http://slidepdf.com/reader/full/decrescenzo-v-scientology-opposition-to-motion-to-compel-reply-feb-2013pdf 1/13

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P :\WP\Cases\952 lOTUNS P-DEM.MT02013-02-26 . Rep ly re MTC Compliance . Finai.wpd

FILEDSUPERIO R COURT OF CALIFORN

COUNT V "

OF LOS ANGELES

FEB 27 2013

John A . Clarjce, Executive Oficer/Cl

, Dep

BLUMBERG LAW CORPORATION

JOHN P . BLUMBERG , ESQ . (SBN 70200 )

SINDEE M. SMOLOWITZ , ESQ . (SBN 123237

444 W . OCEAN BLVD. , SUITE 1500

LONG BEACH , CA 90802

TELEPHONE : (562 ) 437-0403

TELECOPIER : (562 ) 432-0107

METZGER LAW GROUP

A PROFESSIONAL LAW CORPORAT ION

RAPHAEL METZGER , ESQ . (SBN 116020 )

KATHRYN SALDANA , ESQ . (SBN 251364 )

401 E . OCEAN BLVD . , SUITE 800

LONG BEACH , CA 90802-4966

TELEPHONE ; (562 ) 437-4499

TELECOPIER : (562 ) 436-1561

Attorneys for PlaintiffLAURA ANN DECRESCENZO

SUPERIOR COURT OF THE STATE OF CALIFORN IA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

LAURA ANN DeCRESCENZO , akaLAURA A . DIECKMAN,

Plaintiffs,

vs .

CHURCH OF SCIENTOLOGY

INTERNATIONAL , a corporateentity, AND DOES 1-20 ,

Defendants .

CASE NO . BC411018

Assigned to the HonorableRonald M . Sohigian , Dept . 41

PLAINTIFF'S MEMORANDUM OF

POINTS

AND

AUTHORITIES IN

REPLY

TO DEFENDANT CHU RCH OF

SCIENTOLOGY

OPPOSITION

MOTION TO

WITH THE

ORDERS OR

TERMINATING

INTERNATIONAL'S

TO PLA INTIFF'S

COMPEL COMPLIANCE

COURT'S DISCOVERY

ALTERNATIVELY FOR

SANCTIONS

DATE

TIME

DEPT

March 6 , 2013

1 :30 p.m .41

[Filed Concurrently withPlaintiff's Objections to theDeclaration of Warren McShane;

Plaintiff's Objections to theDeclaration of Allan Cartwright;

[Proposed] Order Re Objections toDeclaration of Warren McShane;

[Proposed] Order Re Objections to

Declaration of Allan Cartwright]

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHURCH

OF SCIENTOLOGY INTERNATIONAL'S OPPOSITION TO PLAINTIFF MOTION TO COMPELCOMPLIANCE WITH THE COURT'S DISCOVERY ORDERS OR ALTERNATIVELY FOR TERMINATING

SANCTIONS



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27ÿÿ:\WP\Cases\9527 \SBiOT\lNSP -DEM.MTC \2013-02-26 . Reply re MTC Comp liance - Final .wpd

MEMORANDUM OF PO INTS AND AUTHORITIES

1. PREL IM INARY STATEMENT

The Court should grant plaintiffs motion . Church of Sciento logy International ("CSI"), h

failed to demonstrate that all of the documents it claim s are subject to the clergy-penitent privile

satisy each of the elements of that privilege and that plaintiff and the Court should blindly tru

defendant's "confidentiality" designations. Defendant has identified documents that in no way can

construed as fall ing with in the clergy-penitent privilege, and insists that it is somehow entitled

greater protection than that afforded to other religions and denom inations. The Court should n

expand statutory privileges to permit CSI to shield itself from liability by hiding behind convolut

"

religious"

based notions of conidentiality . Defendant has failed to show that the clergy-penite

privilege can or shou ld be expanded . Based on the record now before the Court, defendant shou

either be ordered to produce the withheld documents or the Court should strike defendant,

s statute

lim itation s defense.

2. CAL IFORNIA ,S CLERGY -PENITENT PRIV ILEGE IS NARROWLY DEFINED AN

DEFENDANT HAS FA ILED TO ESTABLISH EACH OF ITS ELEMENTS

Defendant presumes the clergy-penitent privilege applies to the documents at issue without fir

establishing each of the elements required under the clergy-penitent privilege .

In order for a statement to be privileged , it must satisfy all of the conceptual requirements

a penitential commun ication:

1) it must be intended to be in confidence; 2) it must be made to a member of the clergywho in the course of his or her religiou s discipline or practice is authorized oraccustomed to hear such communications; and 3) such member of the clergy has a dutyunder the discipline or tenets of the church , religious denom ination or organization tokeep such commun ication s secret .

Doe 2 v . Superior Court (2005) 132 Cal . App.4th 1504, 1516 (internal citation om itted) .

W ithout identifying any of the specific qualification s ofdefendant,s alleged 259 ministers (mo

of which plaintiff does not recognize and many of which canno t be identified by name), defenda

asserts that every person listed in its privilege log was a"

clergy person responsib le for a parishioner

spiritual guidance"

under "Scientology doctrine." CSI offers the inadmissible Declaration of All

Cartwright in support of this conclusion , who simply decrees that every person listed was_ 1_LAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHURCH

OF SCIENTOLOGY INTERNATIONAL'S OPPOSITION TO PLA INTIFF MOTION TO COMPEL

COMPLIANCE WITH THE COURT 'S DISCOVERY ORDERS OR ALTERNATIVELY FOR TERMINATING

SANCTIONS



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clergyperson ,"

without setting forth any foundation for his personal knowledge of each perso

qualifications.] Cartwright'

s declaration fails to demonstrate that any of the individua ls listed w

"

authorized or accustomed to hear such communications."

Defendant also argues that all of the documents listed in its privilege log were "confiden

commun ications" simply because defendant chooses to treat all communications relating to aud it

sessions as "

con fidential."

However, the clergy-penitent privilege narrowly defines confiden

communication s as those communications not transmitted to third persons. Defendant,

s m

designation of "confidential" is not adequate to satisfy the requirement of a penitential communicatio

The fact that defendant labe ls PC Folders as "con fidential" and subject to the clergy-penitent privil

does not mean that the documents in those folders actually fall within the defined scope of the cler

penitent privilege . Finally, the fact that plaintiff signed a confidentiality agreement as a minor d

not mean that plaintiff cannot waive the privilege over those files as an adult, that the agreemen

enforceable against plaintiff , or that the documents in those folders actually fall within the definit

of the clergy-penitent privilege .

For these reasons, defendant has failed to establish that the documents in its privilege log

with in the clergy-penitent privilege, and the Court should order disclosure of these documents

alternatively review the dispu ted documents in camera . In Catho lic Archb ishop , a discovery refe

reviewed supposedly "

privileged"

documents, and determined from a review of the documents t

they did not con stitute penitentia l communications, despite the Catholic chu rch's contrary assertio

Roman Catho lic Archb ishop of Los Angeles v. Superior Court (2005) 131 Cal . App.4th 417 , 446

3. THE COURT SHOULD REJECT DEFENDANT ,S IMPROPER ATTEMPT

TO RE-DEFINE AND EXPAND THE CLERGY -PENITENT PRIV ILEGE

The Court should reject defendant,s attempt to have the Court re-define California,s cler

penitent privilege because evidentiary privileges are defined by statute in California and cannot

modified by courts. Evidence Code § 911(b) states that "

[e]xcept as otherwise provided by statu

.. [n]o person has a privilege to refuse to disclose any matter or to refuse to produce any writing , obj

1See Objection s to Declaration of Allan Cartwright .

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHUR C

OF SCIENTOLOGY INTERNATIONAL'S OPPOSITION TO PLAINTIFF MOTION TO COMPELCOMPLIANCE WITH THE COURT'S DISCOVERY ORD ERS OR ALTERNATIVELY FOR TERMINAT IN

SANCTIONS



2ÿÿ:\WP\Cases\95 27OT ic-MOT\JNSP-OEM.MTC\20 t3-02-26 . Reply re MTC Con*il iance . Rnal.wpl

or other thing ."

Add itionally, case law makes clear that "'evidentiary privileges shall be available on

as defined by statute and that courts cannot add to statutory privileges or imply unwritten exceptio

to statutory privileges. Catho lic Archb ishop, supra , 131 Cal.App .4th at 441 (emphasis in original)

The clergy-penitent privilege is clea rly defined by statute to include on ly "confidentia

communications "

/« the presence of no third person so far as the penitent is aware."

Evid. Code

1032 (emphasis added). Courts have made clear that in order for this statutory privilege to apply

California, the original commun ication cannot be transm itted to a third person and that the clerg

penitent privilege does not arise "

even if third parties are no t present at the time of t

communication,"

but will have access to the commun ication. Doe 2 v . Super ior Court (200 5) 1Cal.App .4 th 1504 , 1518 ; Ca tho lic A rchb ishop , supra , 131 Cal.App.4th at 445 .efendant argues that even tho ugh third parties had access to plaintiffs PC Folders, a

plaintiff was aware that third parties could access her PC Fo lders, defendant should still be permitt

to shield these documents under the clergy-penitent privilege because all third persons to whom t

relevant commun ications were transmitted purportedly had a duty to keep the commun ications "

secret

The Court must reject this self serving argument because it is contrary to the statutorily defin

privilege .

A . The Cal ifornia Legislature Has Defined the Privileges That Can Encompass a ThiParty, and The Clergy-Penitent Privilege Is Not Among Them

Under Evidence Code § 912(d), the California Legislature specifically defined the statuto

privileges that may includ e a "

disclosure in confidence" to a third person without constituting

"

waiver"

of the pivilege . This exception is lim ited to on ly the lawyer-client privilege , t

physician-patient privilege , the psychotherapist-patient privilege, the sexual assault counselor-vict

privilege, and the domestic violence counselor-victim privilege , and only includes confident

disclosures that are "reason ably necessary" for the accomplishment of each of these relation ship

Evidence Code § 912(d). Notably absent from Evidence Code § 912(d) is the clergy-penite

privilege .

Given that the California Legislature made a specific determination as to the privileges that c

include confidential disclosures to third persons, and expressly excluded the clergy-penitent privile_ 3_LAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHUR CH

OF SCIENTOLOGY INTERNATIONAL'S OPPOSITION TO PLAINTIFF MOTION TO COMPELCOMPLIANCE WITH THE COURT'S DISCOVERY ORDERS OR ALTERNATIVELY FOR TERMINATING

SANCTIONS



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from this list, the Cout must decline to expand the clergy-penitent privilege in the manner defenda

suggests. If the California Legislature intended for the clergy-penitent privilege to encompa

disclosures to th ird persons, it would have specifically identi fied that privilege under Evidence Co

§ 912(d) as it did with the other specifically-identified privileges.

B. Cal ifornia Courts Have Made Clear Thai the Clergy-Penitent Privilege Does N

Encompass Confidential Disc losures Made to Third Person s

Courts previously have confronted the issue of whether or not the clergy-penitent privile

encompasses confidential communications disclosed to th ird parties, and have consistently decided th

it does not . In Catho lic Archb ishop , the court held that "[t]he fact both parties to the origin

communication knew it likely would be transm itted to a third person vitiated ab initio any privile

under Evidence Code section 1032, or, alternatively, con stituted a waiver of the privilege und

evidence Code section 912 , subd ivision (a)."

Ca tholic Archb ishop , supra , 131 Cal.App.4th at 44

Similarly, in Doe 2, the court explained that communications in the presence of th ird persons or th

are likely to be transm itted to third person s are not covered by the clergy-penitent privilege . Doe

supra, 132 CaI.App.4th at 1518 .

Defendant,s attempts to distinguish the facts of this case from those in Catholic Archb ish

are unpersuasive and fail to change the fact that the clergy-penitent privilege does not apply to t

documents that it seeks to shield from disclosure . In Catholic Archbishop, the Catho lic church assert

that the documents at issue were subject to the clergy-penitent privilege because they we

"

confidential communications made in the course of troubled-priest interventions, and under t

tenets of the church, Cardinal Mahony and the Vicar for C lergy were authorized to hear t

communication s and ob ligated to keep them secret."

Catho lic Archbishop , supra, 131 Cal.App.4

at 444 (emphasis add ed). In addition, the Catholic church presented evidence that these interventio

were dependent "

on the troub led priests,

understand ing the commun ication s will be held in coniden

within the churchIbid , (emphasis in original). The Catholic church also argued that the releva

comm unications "were not transmitted

'

to any third party, that is, someone outside of the bishop

his alter ego , the Vicar for C lergy).," Id . at 445 . Despite th is evidence, the court held that the clerg

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHURC

OF SCIENTOLOGY INTERNATIONAL'S OPPOSITION TO PLAINTIFF MOTION TO COMPEL

COMPLIANCE WITH THE COURT'S DISCOVERY ORDERS OR ALTERNATIVELY FOR TERMINATING

SANCTIONS



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F:\WP\Cases\952 Ii0T\INSP-0EM .MTC\2()13-02-26 - Rep ly re MTC Conu sance - Final.wpd

penitent privilege did not apply to the contested documents because the priests knew th

communications would be transm itted to third persons (even though said persons were authorized

hear such communications in the church and obligated to keep them secret) :

We reject the argument that just because Cardinal Mahony considers the Vicar for

Clergy his surrogate for dealing with troubled priests, there was no violation ofEvidence Code section 1032,s requirement that the commun ication be 'made inconfidence, in the presence of no third person so far as the penitent is aware, to amember of the clergy who ... has a duty to keep those commun ication s secret.

,

Ibid

Here, defendant makes precisely the same arguments rejected in Catholic Archb ishop

Defendant insists that despite the fact that communications made in auditing sessions w ill

transm itted to third persons, the Court should still apply the clergy-penitent privilege to the

communications because the third persons who receive the commun ications are requ ired to keep the

"

secret"

pursuant to church po licy and because these third person s purportedly are necessary to "ass

with the penitent,

s spiritual development."

This argument was already soundly rejected by the co

in Catholic Archbishop which made clear that even where the third person is required to keep

commun ications secret pursuant to church po licy and is authorized to hea r such confident

communications , the clergy-penitent privilege does not apply because a third person is involved.

Defendant further argues that the court in Catho lic Archb ishop ultimately ruled that the clerg

penitent privilege did not app ly to the documents in that case was because there was a "

compelli

state interest" in prosecuting crimes of sexual m isconduct . However, a thorough reading of Catho

Archb ishop demon strates that the court,s decision with respect to the clergy-penitent privilege w

lim ited to the fact that the communications at issue were likely to be transmitted to third persons a

had nothing to do with prosecuting sexual based crimes.

4. APPL ICATION OF THE CLERGY-PENITENT PRIVILEGE AS WRITTEN WIL

NOT VIOLATE THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT

The First Amendment provides that Congress "shall make no law . . . proh ibiting the f

exercise [of religion]Application of the clergy-penitent privilege as written does not violate the F

Exercise Clause of the First Amendment because it is a law of neutral and general app licability .

PLAINTIFF 'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHURC


COMPLIANCE WITH THE COURT'S DISCOVERY ORDERS OR ALTERNATIVELY FOR TERMINATIN

SANCTIONS



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[T]he right of free exercise does not relieve an individual of the obligation to comply with

valid and neutral law of general applicability on the ground that the law proscribes (or prescribe

conduct that his religion prescribes (or proscribes)."

Employment Div., Ore. Dept. Human Res.

Smith (1990) 494 U.S. 872 , 879 . Stated another way , "a law that is neutral and of general applicabil

need not be justified by a compelling governmental interest even if the law has the incidental effe

of burdening a particular religious practice."

Church of the Lukum i Babalu Aye, Inc. v. Hiale

(1993) 508 U.S . 520 , 531-532 (emphasis added) .

On its face, California,s clergy-penitent privilege is a law of neutral and general applicabil

because the privilege applies across the board without regard to any specific religion . See Evid. Co

§ 1032 . Therefore, the mere fact that California,s clergy-penitent privilege pu rportedly has t

"

incidental effect" of burdening defendant's self serving practice of shielding all communicatio

relating to aud iting from disclosure, does not mean that the clergy-penitent privilege actually infring

on defendant,

s free exercise of religion. Further, it should be stressed that the on ly real "

effect" th

defendant claims California,s clergy-penitent privilege has on its free exercise of religion is th

defendant may not be able to "guarantee" the confidentiality of the aud iting process to its memb

which supposedly "

will hinder"

the spiritual progress and salvation of its members. Defendant igno

the fact that without the clergy-penitent privilege , it wou ld not have a right to claim that any portiof its members

'

PC Folders are privileged from disclosure, and that most states do not give cler

their own right to claim the clergy-penitent privilege independent of the penitent. Defendant a

ignores the fact that this is not a case where the penitent seeks to cloak the communication s that s

made during aud iting session s in the clergy-penitent privilege . Instead, plaintiff has waived a

privilege over her PC Folders and is not concerned w ith a risk that disclosure of these documents w

"

hinder" her spiritual progress.

5. APPL ICATION OF THE CLERGY-PENITENT PRIVILEGE AS WRITTEN W IL

NOT V IOLATE THE ESTABL ISHMENT CLAUSE

Defendant,s claim that the Court,s failure to expand the clergy-penitent pivilege to encompa

communications transmitted to th ird persons wou ld result in a violation of the Establishment C lau

because the Court would somehow be placing the "denom inational preferences" of one religion ov_ 6_LAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHURCH


COMPLIANCE WITH THE COURT 'S DISCOVERY ORDERS OR ALTERNATIVELY FOR TERMINATING

SANCTIONS



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ÿ F :\WP\Cas«$$527wK -MOTVNSP -DEM .MTC\2013-02-26 . Reply re MTC Comp liance . Final wp

ano ther is disingenuous. In reality , defendant is claim ing that it is ent itled to a more expansive vers

of the clergy-penitent privilege than that afforded to other religions, which in and of itself wou ld

a violation of the Establishment C lause .

The Establishment C lause of the First Amendment states that "Congress sha ll make no l

respecting an establishment of religion . A three-part test is utilized to determ ine if a statute viola

the Establishment Clause : "First, the statute must have a secular legislative purpose; second ,

principal or primary effect must be one that neither advances nor inhibits religion ; finally , the stat

must not foster 'an excessive government entang lement with religion.,"

Lemon v . Kurtzman, 403 U

602 , 612-613 (1971) (quoting Walz v . Tax Comm'n , 397 U.S . 664 , 668 (1970) internal citatio

omitted) . "

Excessive entang lement" occurs in situations where a "protracted legal process" pits chu

and state as adversaries or where the government is placed in the position of choosing betwe

competing religiou s visions. Catho lic Archb ishop, supra , 131 CaI.App.4th at 434 (internal citatio

omitted).

The clergy-penitent privilege has the secular legislative purpose of recognizing "the hum

need to disclose to a spiritual coun selor, in total and absolute confidence, what are believed to

flawed acts or thoughts. . . Doe 2, supra , 132 Cal.App.4th at 1520 (quoting Trammel v. Uni

States (1980) 445 U.S . 40 , 51). The principal effect of the clergy-penitent privilege is to neit

advance no r inhibit religion because it is defined to include all religions, denominations, a

organizations, and does not expressly exclude any religion or other organization . See Evid . Cod

1032 . Add itionally, the statute also does not foster an excessive entang lement because application

the clergy-penitent privilege will not pit defendant and the state in a "protracted lega l process." Rath

it will requ ire a one-time determination by the Court of what documents are covered by the cler

penitent privilege, as statutorily defined . The clergy-penitent privilege also does not place the Co

in the burden of choosing between competing religiou s visions because the Court is merely assess

whether or not the documents at issue qualify for protection under the clergy-penitent privilege

defined , and will not be deciding a theological dispu te with in Scientology. In fact, the Catho

Archb ishop cou rt held that "[as sessment of the applicability of [the clergy-penitent privilege] does

lead to excessive entanglement in religion." Id . at 436._ 7_LAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHURC


COMPLIANCE WITH THE COURT'S DISCOVERY ORDERS OR ALTERNATIVELY FOR TERMINATIN

SANCTIONS



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27ÿÿi:\WP\Cases\9527HWMOTMNSP-DEM.MTC\2013-02-26 . Rep ly re MTC CompBance - Final .wpDefendant,s argument that California,s clergy-penitent privilege supposedly advances o

religion over another by not broadly including all of the documents that defendant seeks to maint

in confidence is frivolous. The statute is defined to includ e all religions, denominations, a

organizations. The California Legislature elected to narrowly define what confidential communicatio

are protected by th is privilege, and apply it consistently across the board to all religions , and not fav

one religion over another. If that was true , the narrow application of the clergy-penitent privilege

Catholic Archbishop would have been unconstitutional because it did not encompass all of t

documents that the Catho lic church maintained were subject to the clergy-penitent privilege as appl

in said religion . Defendant is actually asking the Court to do is give defendant special treatment a

to re-define the clergy-penitent privilege to suit defendant,

s preferences by citing to a sing

concurring opinion by Justice Harlan in the case of Welsh v. Un ited States (1970) 398 U.S. 333,36

But, the Welsh case did not concern the clergy-penitent privilege and defendant fails to po int out t

Justice Harlan noted that two remedies exist when a statute is constitutionally under-inclusive :

courts may declare the statute a"

nullity"

and decline to apply it to the class it was intended to bene

or (2) courts may extend it to include those excluded by it. Welsh , supra , 398 U.S . at 361 (Harlan,

concurring). According to Justice Harlan , courts shou ld on ly add to a statute where this can be do

w ithin the

"

administrat

ive framework"

and "w ithout impairing other legislative goals." Id . at 366

California,s clergy-penitent privilege cannot be extended in the manner suggested by defend

within California,

s administrative framework and without impairing the goals of Californi

Legislature . Evidentiary privileges are lim ited to only those defined by statute and courts cannot a

to those statutory privileges, therefore, the Court cannot add to the clergy-penitent privilege in

manner defendant seeks. Evid. Code § 911 (b). Further, given that California,

s Legislature specifica

enumerated statutory privileges that can include the transmiss ion of confidential information to th

persons, and excluded the clergy-penitent privilege from this list, the Court cannot expand the clerg

penitent privilege as suggested by defendant without impairing the Legislature,

s clear goal of limit

the clergy-penitent privilege to on ly communications made outside the presence of third persons. S

Evid. Code § 912(d) .

//

PLAINTIFF 'S MEMORAN DUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHURC


COMPLIAN CE WITH THE COURT'S DISCOVERY ORDERS OR ALTERNATIVELY FOR TERMINATIN

SANCTIONS



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F:\WP\Cases\95 27\BHC-MOT\lNSP-DEM .MTC \2013 -02-26 - Rep ly re MTC Compliance . Final.wp

To the extent that the Cou rt finds that the clergy-penitent privilege is Constitutionally "und

inclusive" as argued by defendant, the Court should simply nullify the clergy-penitent privilege a

decline to app ly it in this case, which is the traditional remedy for a statute that violates

Establishment Clause . See Lemon , supra, 40 3 U.S . at 613.

6. DEFENDANT ,S RELIANCE ON THE FUNDERBERG CASE IS IMPROPER

Defendant cites Funderberg v. United States (2004) No. C 02-05461 JW (RS), for

proposition that plaintiffs PC Folders are privileged because the Funderberg court ruled that

documents contained in PC folders in that case were subject to the clergy-penitent privileg

Defendant's citation to Funderberg is improper because it is an unpublished decision which is no

be cited or relied upon by a court or a party in any other action or proceeding. C .R.C . 8.1115(a);

also Santa Ana Hosp . Med . Ctr . v. Belshe (1997) 56 Cal.App.4th 819 , 831 . Further, Funderberg

distinguishable because in that case both the "penitent" and "clergymen" claimed a privilege over

documents and the Court did not have a privilege log evidencing that the requested documents h

been transm itted to third persons in violation of the definition for the clergy-penitent privilege .

7. THE DOCUMENTS THAT PLA INT IFF SEEKS ARE HIGHLY RELEVANT

Plaintiffs state of m ind and ability to assess threats and information are of central impo rtan

because defendant argues that plaintiffs claim s are time barred and that she is not entitled to ass

equitable estoppel to preclud e its statute of lim itation s defense . For pu rpo ses of equ itable estoppel,

Court must assess whether plaintiff reason ably relied on defendant,s conduct in delaying filing suit a

her reliance must be viewed in light of plaintiffs own knowledge and experience . See Super

Dispatch, Inc. v. Ins. Corp. of New York (2010) 181 Cal .App.4th 175, 188 . Plaintiff alleges in

Second Amended Complaint how she was brainwashed and was enmeshed in a long -term confiden

relation ship with defendant, such that her "

knowledge and experience" is different than an avera

ind ividual . Documents in her PC Folders are likely to demon strate plaintiffs knowledge a

understand ing of the world, and whether or not her reliance on defendant's conduct was reasonab

Further, defendant,s Motion for Summary Judgment is not isolated to events that occurred a

plaintiff let the Sea Org . Defendant'

s Separate Statement cites to events that took place prior to

during plaintiff s time in the Sea Org, including purported facts regarding plaintiffs aborti_ 9_LAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHURC

OF SCIENTOLOGY INTERNATIONAL'S OPPOSITION TO PLAINTIFF MOTION TO COMPELCOMPLIANCE WITH THE COURT'S DISCOVERY ORDERS OR ALTERNATIVELY FOR TERMINATIN

SANCTIONS



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F:\WP \Cases\952 iOTMNSP-OEM .MT020t 3-02-26 . Reply re MTC Conusan ce . Finalwp

plaintiffs history in the Sea Org, her alleged beliefs at varying periods of time, and facts that under

what happened when plaintiff let the Sea Org . Having placed these matters at issue, defendant cann

hide behind an alleged privilege to withho ld relevant evidence.

Plaintiff also disputes defendant,s interpretation of the Court of Appeal,s decision in this ca

and the lim itations that defendant claims exist with respect thereto - the Court of Appeal was reviewi

the court,s ruling on a demurrer and had no factual evidence in front of it to lim it the issue of equ ita

estoppel in the manner defendant suggests.

8. GROUNDS EXIST FOR TERM INAT ING SANCTIONS

The terminating sanction that plaintiff seeks is to have the Court strike defendant's statute

lim itations defense . As outlined above, and in plaintiff s prior motion to com pel that the Court gran

on January 7 , 2013, the documents in plaintiffs PC Folders are relevant to defendant,

s statute

lim itations defense because they likely reflect plaintiffs state of mind and whether or not her relian

on defendant,

s conduct was reasonable for purposes of equ itable estoppel . Thus, there is a cl

connection between the discovery that plaintiff seeks and her request to strike defendant's statute

lim itations defense. Plaintiff has attempted to obtain the dispu ted documents through formal discov

for nearly one year, and despite these efforts, defendant refuses to produce the requested docume

and insists that the Court rule on its Motion for Summary Judgment while withholding th

documents. Defendant violated the Court,s order granting plaintiffs motion to compel by produc

a wholly inadequate privilege log that fails to adequately identify documents as allegedly falling wit

the clergy-penitent privilege and/or identifies documents that cannot be shielded with in the cler

penitent privilege . Plaintiffs terminating sanction is therefore warranted.

9. CONCLUSION

For each of the foregoing reasons, plaintiffs motion should be granted .

DATED : February 27, 2013 METZGER LAW GROUPA Professiona l Law Corporation

KATHRYN SALDANA , ESQ .Attorneys for PlaintiffLAURA DECRESCENZO

10

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHUR C

OF SCIENTOLOGY INTERNATIONAL'S OPPOSITION TO PLAINTIFF MOTION TO COMPELCOMPLIANCE WITH THE COURT'S DISCOVERY ORDERS OR ALTERNAT IVELY FOR TERMINATIN

SANCTIONS





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F:\WP\Cases\9527lBPwOTMNSP-OEM.MTC \2013-02 -26 - Reply re MTC Comp liance - Final wpd

SERVICE LIST

(DeCrescenzo v. Church of Scientology, Case No . BC411018)

-oOo-

Bert H . Deixler , Esq .

Kendall Brill & Klieger LLP

10100 Santa Monica Blvd . , Suite 1725

Lo s Angeles, CA 90067

(Church of Scientology International)

Matthew D . Hinks , Esq .

Jeffer, Mangels , Butler & Mitchell

1900 Avenue of the Stars , 7[f Floor

Los Angeles , CA 90067-4308

{Religious Technology Center )

John P . Blumberg , Esq .

Blumberg Law Corporation

444 W . Ocean Blvd. , Suite 1500

Long Beach , CA 90802

(Plaintiff )

{Updated August 23 , 2012 jlp )

_ 12_LAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANT CHURC