SUPERIOR COURT OF CALIFORNIA,
MINUTE ORDER
TIME: 10:00:00 AM
JUDICIAL OFFICER PRESIDING: Gregory W Pollack
COUNTY OF SAN DIEGO
CENTRAL
DATE: 05/26/2017 DEPT: C-71
CLERK: Terry Ray
REPORTER/ERM: R Jerrod Jones CSR# 11750
BAILIFF/COURT ATTENDANT: L. Wilks
CASE NO: 37-2012-00099849-CU-PO-CTL CASE INIT.DATE: 06/29/2012
CASE TITLE: Lopez vs. Doe 1 Linda Vista Church [IMAGED]
CASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PD/WD - Other
EVENT TYPE: Summary Judgment / Summary Adjudication (Civil)
MOVING PARTY: Watchtower Bible and Tract Society of New York Inc
CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 01/27/2017
EVENT TYPE: Civil Case Management Conference
APPEARANCES Devin M Storey, counsel, present for Respondent on Appeal,Plaintiff(s).
Francis J McNamara, counsel, present for Defendant(s).
Dean A. Olson, specially appearing for counsel Beth A Kahn, present for
Defendant,Appellant,Plaintiff(s).
Dean A. Olson, counsel, present for Watchtower Bible and Tract Society of New York, Inc., Defendant.
The Court orally advises the parties of its tentative ruling, after which oral argument is conducted. Upon
completion of oral argument, the court makes the below ruling:
I.
INTRODUCTION
This is a bifurcated motion for summary judgment, or in the alternative, motion for summary
adjudication, brought by defendant Watchtower Bible and Tract Society of New York, Inc. ("Watchtower")
to an action filed by plaintiff Jose Lopez ("Lopez"). Pursuant to previous court order, the issues
addressed in this phase of the motion are limited to retraxit, collateral estoppel, judicial estoppel and
ratification.
II.
APPLICABLE LAW
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CASE TITLE: Lopez vs. Doe 1 Linda Vista Church
[IMAGED]
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"Summary judgment is properly granted when there is no triable issue of material fact and the
moving party is entitled to judgment as a matter of law. (Code of Civ. Proc. §437c, subd. (c).) Where
the defendant is the moving party, it must show that a cause of action has no merit by putting forth
evidence that either one or more elements of the cause of action, even if separately pleaded, cannot be
established or that a complete defense exists thereto. (Code of Civ. Proc. §437c, subds. (o) & (p)(2);
Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) If the defendant meets this
burden, the burden shifts to the plaintiff to establish that a triable issue of material fact exists. (Code Civ.
Proc., §437c, subd. (p)(2); Saelzler, at p. 768.)." County of San Diego v. Superior Court (2015) 242
Cal.App.4th 460, 467.
To defeat a motion for summary judgment, the opposing party must produce evidence showing
at least one triable issue of material fact. CCP §437c(c). The opposition papers need not prove the
opposing party's case; they only need to disclose the existence of a triable issue. Carleton v. Tortosa
(1993) 14 Cal.App.4th 745, 752-753. For a summary judgment motion to be successful, the evidence
must leave no room for conflicting inferences as to material facts. Calvillo-Silva v. Home Grocery (1988)
19 Cal.4th 714, 735. The trial judge may not weigh the opposing party's evidence or inferences against
those of a moving party, as though the judge were sitting as the trier-of-fact. If the judge concludes the
opposing party's evidence or inferences raise a triable issue of fact, the judge must deny the motion. 2
California Judges Benchbook: Civil Proceedings Before Trial (Second Edition 2008), §13.52, p. 159;
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.
"In order to establish entitlement to summary adjudication, the moving party must establish that
the cause of action is without merit by negating an essential element or by establishing a complete
defense (§437c, subd. (f); City of Emeryville v. Superior Court (1991) 2 Cal.App.4th 21 [2 Cal.Rptr.2d
826].) A motion for summary adjudication proceeds in all procedural respects as a motion for summary
judgment." Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 324.
III.
ANALYSIS
a. Retraxit/Collateral Estoppel/Judicial Estoppel
Watchtower's retraxit/collateral estoppel/judicial estoppel argument is based on the premise that
Lopez voluntarily dismissed former defendant Linda Vista Spanish Congregation of Jehovah's Witnesses
("Congregation") with prejudice, thereby constituting a retraxit, which is a judgment on the merits in favor
of the dismissed party which can be asserted by Watchtower through the doctrine of collateral estoppel.
See Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Company of
America (2005) 133 Cal.App.4th 1319, 1330 – 1331; Torrey Pines Bank v. Superior Court (1989) 216
Cal.App.3d 813, 820-823. As such, Watchtower argues, it can have no respondeat superior liability as
to any alleged acts or omissions of Congregation.
Watchtower's analysis, while superficially appealing, is flawed, inasmuch it ignores the fact that
the dismissal of Congregation was given in good faith pursuant to a settlement --- Congregation agreed
to forego costs of more than $120,000 unless and until Lopez obtained a recovery against Watchtower
in exchange for the dismissal with prejudice. Pursuant to CCP §877(a), such a dismissal, including a
dismissal with prejudice, "shall not discharge any other such party [Watchtower] from liability unless its
terms so provide ..." See also Ritter v. Technicolor Corp. (1972) 27 Cal.App.3s 152, 153 ("By California
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CASE TITLE: Lopez vs. Doe 1 Linda Vista Church
[IMAGED]
CASE NO: 37-2012-00099849-CU-PO-CTL
statute [CCP §877], release of an agent [Congregation] before trial does not discharge his principal
[Watchtower] from tort liability, even though the sole basis alleged for recovery from the principal
[Watchtower] is vicarious liability for the acts of his agent. [Congregation]").
Accordingly, Watchtower's motion based upon retraxit, collateral estoppel and judicial estoppel is
denied.
b. Ratification
Paragraph 9.2 of the first amended complaint alleges ratification:
"Although Defendant Supervisory Organization [Watchtower] was aware through its agents – the Elders
of Defendant Linda Vista and La Jolla Spanish Congregation of Jehovah's Witnesses – prior to
appointing the Perpetrator [Campos] as a Ministerial Servant in 1988 and an Elder in 1993, that
Perpetrator had sexually molested multiple children, the Perpetrator was retained and promoted to more
senior leadership positions as an agent of Defendant Supervisory Organization [Watchtower]. By
retaining and promoting Perpetrator [Campos] after learning of his past sexual abuse of children,
Defendant Supervisory Organization [Watchtower] ratified and authorized Perpetrator's conduct."
Citing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) 132 S. Ct. 694,
Watchtower argues that, as a religious organization, it has a First Amendment right to control the
selection of its own leaders and, therefore, cannot be sued under a theory of ratification premised on
Campos' appointment, retention and promoting.
This court believes that Watchtower's interpretation of the Hosanna-Tabor decision is overly
broad. As the U.S. Supreme Court, itself, noted, the holding in that case was limited to an employment
discrimination suit brought on behalf of a minister against her own church:
"The case before us is an employment discrimination suit on behalf of a minister, challenging her
church's decision to fire her. Today we hold only that the ministerial exception bars such a suit. We
express no view on whether the exception bars other types of suits, including actions by employees
alleging breach of contract or tortious conduct by their religious employers. There will be time enough to
address the applicability of the exception to other circumstances if and when they arise."
(Id., at p. 710.)
Our own Lopez court rejected plaintiff's First Amendment contention recognizing that while the
ministerial exception may bar an employment action by a clergy member against his religious institution,
such would not preclude a third party action against a religious organization for the tortious conduct of its
agents:
"...Watchtower relies on a line of cases applying the ministerial privilege doctrine, a constitutionally based
rule that exempts religious organizations from liability arising from employment-related claims by a
religious figure. [Citations omitted.] This doctrine is based on the notion a church's appointment of its
clergy, along with such closely related issues as clerical salaries, assignments, working conditions and
termination of employment, is an inherently religious function because clergy are such an integral part of
the church's functioning as a religious institution. [Citations omitted.] This rule is not applicable here.
The ministerial exception applies to barring action by a clergy member against a religious institution.
[Citation omitted.] Watchtower has not cited, nor are we aware of, any decisions extending this rule to
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CASE TITLE: Lopez vs. Doe 1 Linda Vista Church
[IMAGED]
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preclude a third party action against a religious organization for the tortious conduct of its agents. And
the law appears to be to the contrary."
Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 599.
Watchtower's argument proves too much. If a religious entity could never be sued for its
selection of its religious leaders, then it could never be sued for negligent hiring even if, for example, it
hired a known pedophile that would inevitably molest congregational members. Thus, that the issue
comes before this court in the setting of an alleged post-abuse ratification as opposed to a pre-abuse
hiring decision is a red herring. If one accepts Watchtower's argument, then any claimed negligent
hiring not involving post-abuse ratification would also be barred. However, California law has already
recognized that a church can be sued for negligent hiring. See, e.g., Evan F. v. Hughson United
Methodist Church (1992) 8 Cal.App.4th 828 (church can be sued for negligent hiring of pastor who
subsequently molests 13-year-old boy).
This court notes that in the Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016)
246 Cal.App.4th 566, 591, our appellate court tacitly recognized the viability of a negligent hiring action
against a church for the church's hiring or retention of a clergyman based upon the legal theory of
negligent hiring/retention by specifically setting forth the elements that Lopez would need to prove "to
prevail on his negligent hiring/retention claim":
Lopez brought several claims against Watchtower, including negligent hiring, supervising and retaining
Campos, and failure to warn. To prevail on his negligent hiring/retention claim, Lopez will be required to
prove Campos was Watchtower's agent and Watchtower knew or had reason to believe Campos was
likely to engage in sexual abuse.
Watchtower's motion as to ratification is denied.
IV.
CONCLUSION
Watchtower's motion as to retraxit, collateral estoppel, judicial estoppel and ratification is denied.
V.
OTHER
a. Court continues CMC to 9/15/17 at 10:00 a.m.
b. Court confirms hearing on Watchtower's phase II motion for summary judgment, limited to the
issues of statute of limitations, proximate cause and failure to warn, train and/or educate, for September
15, 2017, at 10:00 a.m.
c. Phase II discovery production due date remains officially June 15, 2017, with the expectation
of reasonable periodic rolling productions through August 1, 2017.
Summary Judgment / Summary Adjudication (Civil) is continued to 09/15/2017 at 10:00AM before Judge
Gregory W Pollack.
DATE: 05/26/2017 MINUTE ORDER Page 4
DEPT: C-71 Calendar No. 20
CASE TITLE: Lopez vs. Doe 1 Linda Vista Church
[IMAGED]
CASE NO: 37-2012-00099849-CU-PO-CTL
Civil Case Management Conference is continued to 09/15/2017 at 10:00AM before Judge Gregory W
Pollack.
DATE: 05/26/2017 MINUTE ORDER Page 5
DEPT: C-71 Calendar No. 20
