J.W. v. Watchtower Bible & Tract Society of N.Y., No. E066555 (D4d2 Dec. 10, 2018)
A Girl sued the Watchtower Society—the governing body of the Jehovah’s Witnesses—for its failure to prevent her from being molested by an elder of the Church. In discovery, she requested a copy of all correspondence received by the Church after it sent a letter to its congregations asking them to explain any occasions where persons known to have molested children were promoted to positions of authority with the Church. The Church claimed the documents were subject to the clergy-penitent privilege and that it would be unduly burdensome to search for them. The trial court disagreed and granted Girl’s motion to compel.
The Church has kind of a bad record on discovery issues in child sex abuse cases. True to form, it fought like hell to get the order reversed. But when that didn’t pan out, Church refused to comply with the order. Eventually the court struck the Church’s answer as a terminating sanction. Girl obtained a default judgment for a little more than $4 million. Church appeals.
Before getting to the discovery and sanctions issues, the Court of Appeal addresses the Church’s appeal of an order overruling its demurrer on Girl’s purported failure to allege proximate causation. A default admits only the facts alleged. So a defendant can appeal a default judgment on whether those facts state a claim for relief. Unfortunately for the Church, they do here.
As to the discovery issue, Church argues that a terminating sanction was too severe because lesser sanctions would have been sufficient to compel compliance. Problem with that is that the lesser sanctions it proposes in its appellant’s brief weren’t proposed to the trial court, so those arguments are generally forfeited. And in any event, the trial court issued a conditional order—it gave the church a few days to change its mind and produce the documents before the terminating sanctions kicked in. So if the threat of terminating sanctions didn’t compel compliance, it’s hard to understand, logically speaking, why some other lesser sanction would have.
Three and a half months after the default was entered, the Church sought relief from the order. It claimed that, although it did not have the ability to search for the documents at the time the motion was decided, it had developed software that enabled it to identify the relevant documents. The trial court denied the motion, finding that because the Church was in default, it didn't have standing to move for relief. That doesn’t make a whole lot of sense.
The Court of Appeal seems to get that, but it still affirms, for a different reason. It says the Church’s motion must have been one of three things. Either it was a motion for reconsideration, in which case it was untimely under Code of Civil Procedure § 1008. Or it was a motion for equitable relief from the judgment, which fails because the Church never raised that grounds—which is highly discretionary—in the trial court. Or it was a motion for relief under § 473(b) based on mistake, which would fail because the Church’s asserted grounds was based on a post-default change in circumstances, not on a mistake.
Finally, the Court address some of Girl’s requests for judicial notice in connection with the appeal. Although they don’t appear to have any bearing on the appeal, the Court denies notice of two documents that were supposedly filed with courts because the copies she provided aren’t conformed filings, citing Wolf v. CDS Devco, 185 Cal. App. 4th 903, 914-915 (2001), for the proposition that a “requesting party bears the burden of providing a conformed copy or explaining why a conformed copy is unavailable.”
Affirmed.
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