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KENDALL BRILL & KLIEGER LLP

Bert H. Deixler (70614)

bdeixler@kbkftrm. com
Nicholas F. Daum (236155)

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ndaum@kbkfirm. com
10100 Santa Monica Blvd., Suite 1725 Los Angeles, California 90067 Telephone: 310.556.2700
Facsimile: 310.556.2705

mxryovios ANeeLw

John A. CUrkeJJxeoutive GflRc/CMc

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RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, LLP

Eric M. Lieberman {pro hac vice) 45 Broadway, Suite 1700

New York, NY 10006

Telephone: 212.254.1111
Facsimile: 212.674.4614

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Attorneys for Defendant

CHURCH OF SCIENTOLOGY
INTERNATIONAL

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JEFFER, MANGELS, BUTLER & MITCHELL, LLP Robert E. Mangels (48291) Matthew D. Hinks (200750) 1900 Avenue of the Stars, Seventh Floor

Los Angeles, California 90067 Telephone: 310.203.8080

Facsimile: 310.203.0567

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Attorneys for Defendant RELIGIOUS TECHNOLOGY CENTER

SUPERIOR COURT OF THE STATE OF CALIFORNIA

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v

COUNTY OF LOS ANGELES, CENTRAL DISTRICT

LAURA ANN DeCRESCENZO,
Plaintiff,

Case No. BC411018

Assigned for All Purposes to the Hon. Ronald Sohigian, Dept. 41

DEFENDANTS, STATEMENT IN ADVANCE OF STATUS CONFERENCE

CHURCH OF SCIENTOLOGY

INTERNATIONAL, a corporate entity,

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,

RELIGIOUS TECHNOLOGY CENTER,

Date:
Time:

November 12, 2013

8:30 a.m.

previously sued herein as Doe No. 1, a California Corporation, and DOES 2-20,
Defendants.

Judge: Dept.:

Hon. Ronald Sohigian 41 April 2, 2009

Not set

Co

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Action Filed: Trial Date:

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Kendall Brill & Klieger LLP

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DEFENDANTS' STATEMENT IN ADVANCE OF STATUS CONFERENCE

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Defendants Church of Scientology International ("CSI") and Religious Technology Center

("RTC"), submit the following statement in advance of the Court s November 12, 2013, status
conference.
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In summary, Defendants propose the following schedule: (a) a hearing on Defendants,

motion under Code of Civil Procedure 128 concerning First Amendment issues and the structure

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of proof governing any trial, in early February 2014; (b) a hearing on Defendants, anticipated
second summary judgment motion, in approximately May 2014; (c) a trial to the Court of the
equitable estoppel issue, in approximately September 2014, and lasting approximately 5-10 court days; (d) a merits trial set for approximately January 2015 lasting 30-60 court days. The basis for
this schedule is described below.

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A.

The Court Must Determine The Effect Of The First Amendment On The

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Proof Well Before Any Trial On The Issue Of Equitable Estoppel

Defendants ask the Court to schedule a bench trial on the issue of whether their statute of

limitations defense is barred by the doctrine of equitable estoppel. In advance of such a trial

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however, there remain critical, and complex, issues of the application of the federal and California

constitutional protections of freedom of religion to the proceedings. These concerns implicate the
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ministerial exception and other critical First Amendment law, the Court's entanglement in
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determining issues of religious controversy, and defendants' constitutionally-mandated immunity

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from intrusion into matters of religious doctrine or practice by the legal system. See Hope Int'l
Univ. v. Superior Court, 119 Cal. App. 4th 719, 730 (2004) ("Because of the very nature of the [First Amendment ministerial] exception, it entails an immunity on the part of a religious
institution from the intrusive examination into religious doctrine inherent in the suit. Such an

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immunity implicates a somewhat stronger interest than the more typical [] situation where a

litigant is simply asserting the right to win at the summary judgment level... The very process of
review itself threatens to entangle the court in a sectarian controversy. ); see also New York v.
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to

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Cathedral Academy, 434 U.S. 125, 133 (1977) ("The prospect of church and state litigating in
court about what does or does not have religious meaning touches the very core of the
constitutional guarantee against religious establishment ); Serbian Eastern Orthodox Diocese v.
162450.1 1
DEFENDANTS, STATEMENT IN ADVANCE OF STATUS CONFERENCE
"

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Kendall Brill

& Klieger LLP

10100 Santa Monica Blvd. Suite 1725

Los Angeles, CA 90067

Milivojevich, 426 U.S. 696, 713 (1976) ("questions of church discipline and the composition of
the church hierarchy are at the core of ecclesiastical concern"). Here, such questions go the core of the evidence and argument the plaintiff has suggested
she will offer at trial on the equitable estoppel issue. The plaintiff has suggested, inter alia, that

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her own religious beliefs during the time she was a minister within the Church of Scientology, her
performance of her ministerial duties within the Church, and the Church of Scientology s policies
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regarding inclusion or exclusion of former members, are directly relevant to her assertion that the
doctrine of equitable estoppel bars the application of defendants' statute of limitations defense.
Under plaintiffs theory of the case, matters such as Scientology doctrine, teachings, practices, and

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beliefs could all be subject to examination at the equitable estoppel trial. Accordingly, defendants propose to raise the issue of the application of the First
Amendment to these proceedings by a motion under Code of Civil Procedure 128, which allows

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the Court to "provide for the orderly conduct of proceedings before it" and to "control its process
and orders so as to make them conform to law and justice.
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Here, such a ruling is necessary given

the California and United States Supreme Courts, strict command that courts, in disputes involving religious organizations, refrain from determining issues involving ecclesiastical
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discipline," "faith," "custom" and "law." See In re Episcopal Church Cases, 45 Cal. 4th 467,

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484 (2009) (citing Watson v. Jones, 80 U.S. (13 Wall.) 679, 714 (1871)). This motion will address the extent to which such issues can serve as the factual foundation of plaintiffs equitable
estoppel assertion and the extent to which evidence on such issues can be presented at trial. The

Court's ruling on such a motion will establish the "ground rules" for trial on equitable estoppel (and, also, on any trial on liability) and is also necessary to guide the parties in discovery,
including expert discovery. As just one example, depending on the Court's ruling on these issues
,

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it may be necessary for defendants to retain experts on comparative religion in order to explain the role of ecclesiastical discipline and/or excommunication as part of the practices of the religious order in which plaintiff was a member. The Court should resolve issues concerning the

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Kendall Brill

application of the First Amendment to the proceedings, and provide guidelines as to what areas

& Klieger LLP

10100 Santa Monica Blvd.
Suite 1725

162450.1

Los Angeles, CA 90067

DEFENDANTS, STATEMENT IN ADVANCE OF STATUS CONFERENCE

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will and will not be immune from examination, sooner rather than later. Defendants propose that
this motion be heard in February, 2014.
B
.

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Defendants Also Intend To File A Second Summary Judgment Motion, Which

Should Be Heard Before The Bench Trial

In addition to the proposed motion on the application of the First Amendment to questions

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of proof, Defendants also intend to file a Motion for Summary Judgment and/or Summary

Adjudication on merits issues. The summary judgment/adjudication motion will address legal
deficiencies with certain of plaintiffs claims (such as torts not available under California law or as to which monetary damages are not an available remedy), as well as whether the First Amendment
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ministerial exception compels summary adjudication of some or all of plaintiffs claims.

It would be appropriate for the Court to hear this motion before the bench trial on equitable

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estoppel. Defendants motion for summary judgment or adjudication would if granted, dispose of
,

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all or part of the action entirely, but even if it is denied it may narrow and focus the scope of issues
for both a trial on the equitable estoppel issue and any trial on the merits.
C. The Court Should Hold A Separate Bench Trial On The Equitable Estoppel
Issue, As It Has Already Ruled It Will Do

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Following its rulings on these motions, the Court should hold a bench trial on the issue of

equitable estoppel. The Court has already ruled, by order of January 13, 2012, that a trial on the equitable estoppel issue and defendants statute of limitations defense will be to the Court, and
will precede any jury trial or bench trial on the merits of the matter. The Court has also ruled by
,
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order of March 21, 2013, that plaintiffs third cause of action (for alleged deprivation of liberty under the California Constitution) and seventh cause of action (for alleged violations of Business
and Professions Code 17200) will be severed and tried to the Court not a jury.
,

Plaintiff has now submitted a status conference statement asking the Court to reverse its prior rulings, has dismissed her seventh (but not her third) cause of action, and asks that the

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equitable estoppel issue be tried before a (presumably advisory jury) simultaneously with a jury
trial on the merits. There is absolutely no basis for the Court to reverse its prior rulings and the
,

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Kendall Brill

Court should hold a trial on the issue of equitable estoppel (and on plaintiffs Third Cause of
162450.1 3
DEFENDANTS' STATEMENT IN ADVANCE OF STATUS CONFERENCE

& Klieger LLP

10100 Santa Monica Blvd.
Suite 1725

Los Angeles, CA 90067

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Action) before any jury trial in the matter. First, as the Court is well aware and often emphasizes to litigants, equitable issues are generally tried first to a Court, as they must be resolved by the Court before any jury reaches its decision. See Richard v. Degen & Brody, Inc., 181 Cal. App. 2d
289, 295 (1960) ("when an action involves both legal and equitable issues, the equitable issues,

ordinarily, are tried first, for this may obviate the necessity for a subsequent trial of the legal issues") (quoting 29 Cal. Jur.2d 9, p. 496) (disapproved on other grounds in Kendall v. Ernest
Pestana, Inc., 40 Cal. 3d 488,498 (1985)).

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Second, there is no practical reason to hold the merits and equitable estoppel trials
simultaneously, since the issue of equitable estoppel is (a) limited and (b) raises factual and legal

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issues quite distinct and apart from the substantive claims alleged. Unlike tolling doctrines, which
are
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concerned with the point at which the limitations period begins to run and with the
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circumstances in which the running of the limitations period may be suspended, equitable
estoppel comes into play only after the limitations period has run and addresses ... the
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circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period. Lantzy v. Centex Homes, 31 Cal. 4th 363, 383 (2003) (emphasis added, internal quotations omitted); see Peregrine Funding, Inc. v. Sheppard
Mullin Richter & Hampton LLP, 133 Cal. App. 4th 658, 686 (2005).
"

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Accordingly, the focus of the equitable estoppel trial will not be resolving the underlying
merits of the action-rather, it will be upon whether or not defendants made any threats, or

engaged in any harassment, upon which the plaintiff reasonably relied, that prevented her from
filing suit in the period between when she left the Church of Scientology, in 2004, and her actions between 2004 and the date she filed suit in 2009. These issues do not require extensive

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examination of multiple witnesses or days upon days of trial time, as the plaintiff suggests. Rather, the significant factual issue before the Court on the issue of equitable estoppel, the alleged
threats made by defendants and the alleged reasonableness of the plaintiffs delay, can be resolved

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in a relatively brief period of time. Indeed, even in her own trial estimate, plaintiffs counsel
allocates a total of 19 hours to the issues relevant to the equitable estoppel issue-the Plaintiffs
162450.1 4
DEFENDANTS, STATEMENT IN ADVANCE OF STATUS CONFERENCE

Kendall Brill

& Klieger LLP

10100 Santa Monica Blvd. Suite 1725

Los Angeles

CA 90067

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departure from the Sea Organization, her "fears over filing a lawsuit," and the "events leading up
to the filing of Plaintiff s lawsuit." PL's Status Conference St., Ex. A at 4. Since her "fears over

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filing a lawsuit" are the only factual issues relevant to the equitable estoppel issue, there is no need
for a longer bench trial.

Moreover, the evidentiary scope of a bench trial on equitable estoppel may be limited further still by the pre-trial motion practice discussed above.
D
.

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The Bench Trial Should Be Scheduled For Ten Court Days, No Earlier Than
August 2014

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Although the bench trial on the issue of equitable estoppel should not require more than 10 court days of trial time, there is considerable work that must be done before that trial commences.
This is true both in terms of the motion practice discussed above, and because of the need for

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further discovery-particularly given a recent revelation that the plaintiff may have destroyed
critical evidence.

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Several days ago, on her Facebook page, the plaintiff announced that she has deleted "five
figures" of email from her computer. See Exhibit A hereto. While defendants have no means of

knowing, as of yet, what material plaintiff has deleted, the deleted emails are likely to have concerned her beliefs and activities in the period between 2004 and her bringing the lawsuit,

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and/or her post-filing discussions of motivations for bringing the lawsuit. As such, the emails may
have included critically relevant material for the case.

Accordingly, before any bench trial can begin, the parties will have to consider the extent to which this deleted material is recoverable, and the extent, if any, of claims of spoliation and/or sanction for the destruction of relevant evidence. At a minimum, defendants intend to request a forensic examination of plaintiffs computer and/or computers to determine the extent of the deleted material and its potential relevance to the case. In addition to this critically-important spoliation issue, there is also considerable other discovery necessary before a trial can commence on the equitable estoppel issue. Such discovery
would include:

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Kendall Brill & Klieger LLP

10100 Santa Monica Blvd.
Suite 1725

162450.1

5
DEFENDANTS, STATEMENT IN ADVANCE OF STATUS CONFERENCE

Los Angeles, CA 90067

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Document discovery concerning the plaintiffs attitudes towards and conversations

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about, Scientology, in the period before she filed this lawsuit, including records

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relating to her records relating to her computer, which she claims

the relevant period;

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crashed

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during

Depositions of plaintiffs witnesses who provided testimony deemed admissible by

the Court at the 10/23 hearing: Christie Colbran and Shanon Kimoto;

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Depositions of persons in contact with the plaintiff during the period between 2004
and the date of the filing of her complaint, including her employers and persons

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with whom she communicated concerning the Church of Scientology and the filing
of her lawsuit;

Given plaintiffs claims of psychiatric harm and the central emphasis which she
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has put upon such issues, psychiatric exam of the plaintiff pursuant to Code of
,

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Civil Procedure 2032.320, which will require (unless agreed to by plaintiff) an

order of the Court;

Discovery concerning plaintiffs co-workers in the Sea Org the Scientology

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religious order, who witnessed the events plaintiff claims gave rise to her inability
to timely file the lawsuit, in order to compare the plaintiffs recollections with those
of others;

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An expert deposition of plaintiffs expert Robert Levine, together with a deposition

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of an expert selected by Defendants to rebut Mr. Levine s testimony; . Depending on the Court s ruling on the motions discussed in Part III below,
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additional expert depositions on comparative religions and the religious practices of the Church of Scientology and the Sea Org as compared to other religions and
religious orders.

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Additional interrogatories to the plaintiff

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Finally, defendants anticipate that there would be considerable motion in limine practice
before the bench trial on the equitable estoppel issue.

Kendall Brill

& Klieger LLP

t0:00 Santa Monica Blvd.
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DEFENDANTS, STATEMENT IN ADVANCE OF STATUS CONFERENCE

Following the Bench Trial on Equitable Estoppel, A Separate Bench and Jury
Trial On the Merits Should Follow In December 2014

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Finally, if, following the Court's determination on the equitable estoppel trial and the
defendants, summary judgment motion, there remain issues to be determined on a merits trial it
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would be appropriate for the Court to hold a merits trial several months thereafter. Such a merits

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trial would begin with a bench trial on plaintiffs third cause of action, followed by a jury trial thereafter. Defendants agree that a merits trial will be a lengthy undertaking, and estimate that a merits trial would take on the order of 60 days to try to completion (although the length of trial
may be narrowed by the Court s ruling on motions in limine, which would limit the extent of
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evidence presented by both sides as to defendants religious practices and beliefs).

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Given the scope of the potential merits trial, a brief delay is necessary between the equitable estoppel trial and the merits trial is important both to resolve additional evidentiary
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issues, and because the trial on the merits will also require extensive but distinct, in limine
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briefing concerning the extent to which and manner in which evidence of defendants' religious
practices and beliefs may be put before the Court or a jury.

Discovery necessary before a merits trial, but not before the trial on the equitable estoppel
issue, includes the following: . Expert discovery on comparative religion issues and other issues relevant to the
trial; >

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Depositions of witnesses to the events alleged by the plaintiff as central to her Complaint, from the time that she served in the Sea Org;

Depositions of plaintiffs health care providers and relevant records from those
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providers, which are relevant to the plaintiffs damages.

Accordingly, defendants submit that is appropriate to allow some time between any trial on the
limitations issue and trial on the merits.
F
.

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Kendall Brill

Conclusion

For the foregoing reasons, Defendants request the following schedule:

& Klieger LLP

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DEFENDANTS, STATEMENT IN ADVANCE OF STATUS CONFERENCE

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(a) a hearing on Defendants' motion concerning First Amendment issues and the structure
of proof governing any trial, in early February 2014;

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(b) a hearing on Defendants' anticipated second summary judgment motion, in

approximately May 2014;

(c) a trial to the Court of the equitable estoppel issue, in approximately September 2014, and lasting approximately 5-10 court days; and

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(d) a merits trial set for approximately January 2015, and lasting 30-60 court days.
Dated: November 8,2013 KENDALL BRILL & KLIEGER LLP

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By:

[I. De'.vU/,,
Bert H. Deixler

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Attorneys for Defendant Church of Scientology

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International

Dated: November 8, 2013

JEFFER, MANGELS, BUTLER & MITCHELL, LLP

By:

Robert E. Mangels Attorneys for Defendant Religious Technology

Center

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8 DEFENDANTS' STATEMENT IN ADVANCE OF STATUS CONFERENCE