Case No.

B310559
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION FIVE
CHRISSIE CARNELL BIXLER, CEDRIC BIXLER-ZAVALA,
JANE DOE #1 & JANE DOE #2,
Plaintiffs and Petitioners,
v.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA,
COUNTY OF LOS ANGELES
Respondent,
CHURCH OF SCIENTOLOGY INTERNATIONAL,
RELIGIOUS TECHNOLOGY CENTER & CHURCH OF
SCIENTOLOGY CELEBRITY CENTRE INTERNATIONAL,
Defendants and Real Parties in Interest.
PETITION FOR REHEARING

Document received by the CA 2nd District Court of Appeal.

Appeal from the Superior Court of Los Angeles County
Case No. 19STCV29458 – Hon. Steven J. Kleifield, Dept. 57

WINSTON & STRAWN LLP JEFFER MANGELS BUTLER &

*WILLIAM H. FORMAN (SBN: 150477) MITCHELL LLP
[email protected] ROBERT E. MANGELS (SBN: 48291)
DAVID C. SCHEPER (SBN: 120174) [email protected]
[email protected] *MATTHEW D. HINKS (SBN: 200750)
MARGARET E. DAYTON (SBN: 274353) [email protected]
[email protected] 1900 AVENUE OF THE STARS, 7TH
333 SOUTH GRAND AVENUE FLOOR
LOS ANGELES, CA 90071-1543 LOS ANGELES, CA 90067-4308
(213) 615-1700 • FAX: (213) 615-1750 (310) 203-8080 • FAX: (310) 203-0567

ATTORNEYS FOR DEFENDANTS AND REAL ATTORNEYS FOR DEFENDANT AND REAL
PARTIES IN INTEREST CHURCH OF PARTY IN INTEREST RELIGIOUS
SCIENTOLOGY INTERNATIONAL & TECHNOLOGY CENTER
CELEBRITY CENTRE
INTERNATIONAL

1
 TABLE OF CONTENTS

I. INTRODUCTION ......................................................................... 7
II. ARGUMENT ............................................................................... 8
A. Rehearing Is Warranted Because the Court’s Holding
Construing the Scope of Religious Arbitration
Agreements Constitutes a Mistake of Law ........................ 8
B. Rehearing Must Be Ordered Because the Court’s
Decision Is Based on Unbriefed Issues ............................ 14
1. The Basis of the Opinion Was Not Proposed or
Addressed by Either Party and Encompasses
Several Unbriefed Issues .......................................... 14
2. Whether the Church Can Enforce the Agreements
Against Jane Doe #1 After “Excluding” Her From
Religious Services Was Never Raised or Briefed ..... 27
3. Whether the Agreements Constitute a Clear and
Compelling Relinquishment of Petitioners’ Right

Document received by the CA 2nd District Court of Appeal.

to Leave the Church Was Not Raised or Briefed ..... 28
4. Whether Petitioners’ Claims Arise From the
Contractual Relationship Was Not Briefed ............. 29
C. Additional Mistakes of Law Warrant Rehearing ............ 31
1. The Opinion Incorrectly Decides the State Action
Issue Because It Applies Inapposite Law and
Ignores Controlling Authority .................................. 31
2. The Opinion Impermissibly Condemns the
Church’s Terms for Joining the Religion.................. 38
D. Misstatements of Fact Warrant Rehearing ..................... 39
III. CONCLUSION ........................................................................ 42

2
 TABLE OF AUTHORITIES

Page(s)

Cases

Abbo v. Briskin
(Fla.Dist.Ct.App. 1995) 660 So. 2d 1157 ............... 26, 33, 35, 37

Alameda County Mgmt. Employees Assn. v. Superior

Court
(2011) 195 Cal.App.4th 325 ................................................ 13, 39

AT&T Mobility LLC v. Concepcion

(2011) 563 U.S. 333 ....................................................... 10, 13, 35

Bd. of Trustees of City of Delray Beach Police &

Firefighters Ret. Sys. v. Citigroup Glob. Markets,
Inc.
(11th Cir. 2010) 622 F.3d 1335................................................. 10

Document received by the CA 2nd District Court of Appeal.

Braunfeld v. Brown
(1961) 366 U.S. 599 ................................................................... 12

Buckhorn v. St. Jude Heritage Medical Group,

(2004) 121 Cal.App.4th 1401 .................................................... 30

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah
(1993) 508 U.S. 520 ................................................................... 11

Church of Scientology v. City of Clearwater

(11th Cir. 1993) 2 F.3d 1514..................................................... 38

Dean Witter Reynolds v. Byrd

(1985) 470 U.S. 213 ................................................................... 13

Dial 800 v. Fesbinder

(2004) 118 Cal.App.4th 32 ........................................................ 37

Elmora Hebrew Center, Inc. v. Fishman

(1991) 125 N.J. 404 ................................................................... 34

3
Encore Prods., Inc. v. Promise Keepers,
(D.Colo. 1999) 53 F.Supp.2d 1101 ...................................... 12, 34

Erickson v. Aetna Health Plans of Calif.

(1999) 71 Cal.App.4th 646 ........................................................ 35

Espinoza v. Montana Dept. of Revenue

(2020) 140 S.Ct. 2246 ................................................................ 11

Farmers Ins. Exchange v. Superior Court

(1992) 2 Cal.4th 377 .................................................................. 16

Garcia v. Church of Scientology Flag Serv. Org., Inc.

(11th Cir. Nov. 2, 2021) No. 18-13452, 2021 WL
5074465 ..................................................................................... 42

Guinn v. Church of Christ of Collinsville

(Okla. 1989) 775 P.2d 766 ........................................................ 25

Litton Fin. Printing Div., a Div. of Litton Bus. Sys.,

Document received by the CA 2nd District Court of Appeal.

Inc. v. N.L.R.B.
(1991) 501 U.S. 190 ................................................................... 10

Los Angeles County Metropolitan Trans. Auth. v. Yum

Yum Donut Shops, Inc.
(2019) 32 Cal.App.5th 662, 673 ................................................ 33

In re Marriage of Weiss
(1996) 42 Cal.App.4th 106 ................................................. passim

Masterpiece Cakeshop, Ltd. v. Colorado Civ. Rights

Com.
(2018) 138 S.Ct. 1719 ................................................................ 11

Meshel v. Ohev Sholom Talmud Torah

(D.C.Ct.App. 2005) 869 A.2d 343 ............................................. 35

Mey v. DirecTV, LLC

(4th Cir. 2020) 971 F.3d 284......................................... 10, 17, 29

Our Lady of Guadalupe School v. Morrissey-Berru

(2020) 140 S.Ct. 2049 ................................................................ 38

4
Parm v. Bluestem Brands, Inc.
(8th Cir. 2018) 898 F.3d 869..................................................... 30

People v. Alice
(2007) 41 Cal.4th 668 ................................................................ 14

Presbyterian Church in the U.S. v. Mary Elizabeth

Blue Hull Mem. Church
(1969) 393 U.S. 440 ............................................................. 19, 27

Roberts v. AT&T Mobility LLC

(9th Cir. 2017) 877 F.3d 833..................................................... 33

Sieger v. Sieger
(N.Y.Sup.Ct. June 29, 2005) No. 6975/98, 8
Misc.3d 1029, 2015 WL 2031746.............................................. 36

Sotnick v. Sotnick
(Fla.Dist.Ct.App. 1995) 650 So.2d 157 .................................... 37

Document received by the CA 2nd District Court of Appeal.

Spivey v. Teen Challenge of Fla., Inc.
(Fla.Dist.Ct.App. 2013) 122 So.3d 986 .............................. 34, 37

Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress

Intern., Ltd.
(7th Cir. 1993) 1 F.3d 639......................................................... 29

Thomson v. Anderson
(2003) 113 Cal.App.4th 258 ...................................................... 18

Trinity Lutheran Church of Columbia, Inc. v. Comer

(2017) 137 S.Ct. 2012 ................................................................ 12

Watson v. Jones
(1871) 80 U.S. 679 ..................................................................... 38

In re Zeth S.
(2003) 31 Cal.4th 396 ................................................................ 17

Zummo v. Zummo
(Pa.Super 1990) 574 A.2d 1130 .................................... 26, 33, 35

5
Statutes

9 U.S.C. § 2 ............................................................................... 13, 35

Cal. Civ. Proc. Code § 1281.2(b) .................................................... 35

Cal. Gov. Code § 68081 ............................................................ 14, 31

Other Authorities

Cal. R. Ct. 8.204(c)(1) ..................................................................... 43

Cal. R. Ct. 8.500(c)(2) ..................................................................... 39

U.S. Const. amend. I ............................................................... passim

Document received by the CA 2nd District Court of Appeal.

6
 I.
INTRODUCTION

Petitioners came before this Court claiming irreparable

harm on a narrow theory: Litigating any claim in Scientology

arbitration – their forum of choice under contract – violated their

First Amendment rights because such arbitration was a religious

ritual and they were now non-believers. Respondents addressed

that Petition, and showed why it was not supported by the record

or the law.

This Court did not rule on that Petition or the issues

Document received by the CA 2nd District Court of Appeal.

briefed within it. It held that Petitioners’ religious ritual

argument – the basis for supposed irreparable harm – was

“immaterial.” Then, this Court embarked on an examination of

when Petitioners’ claims allegedly arose, the Petitioners’ status

within the Church at that time, whether the claims “stemmed

from” the contractual relationship with the Church, and

fashioned a balancing test to weigh free exercise rights – none of

which was addressed in the briefing.

The Order that resulted shows the perils of ruling on

unbriefed issues of fact and law. This Court became the first in

the nation to hold that “freely executed” religious arbitration

7
agreements cannot be enforced over the First Amendment

objections of a party who claims to be a “non-believer.” This

holding adopts a distinct rule concerning the enforcement of

religious arbitration agreements that discriminates against

religions and violates the Federal Arbitration Act (“FAA”). The

Opinion contains numerous other unbriefed issues, mistakes of

law, and misstatements of fact, all of which require rehearing.

II.
ARGUMENT

A. Rehearing Is Warranted Because the Court’s Holding

Construing the Scope of Religious Arbitration

Document received by the CA 2nd District Court of Appeal.

Agreements Constitutes a Mistake of Law

The Opinion holds that religious arbitration agreements

cannot be enforced against individuals who “had terminated their

affiliation with the Church” when the claims sought to be

arbitrated are “based on alleged tortious conduct occurring after

their separation from the Church and do not implicate resolution

of ecclesiastical issues.” (Opinion, 3.) The Opinion’s

determination of the scope of the arbitration provisions is

divorced from the agreements’ express language. Instead, the

Opinion adopts a balancing test, weighing Petitioners’ alleged

First Amendment rights and the Church Defendants’ First

8
Amendment rights, and viewing them as in “tension.” (Opinion,

35.) The Opinion states:

This case involves both petitioners’ First Amendment

rights to leave a faith and Scientology’s right to resolve
disputes with its members without court intervention.
When applied to a dispute that arose after petitioners left
the faith, and which can be resolved on neutral principles of
tort law, we find petitioners’ right to leave the faith
must control.

(Opinion, 23 (emphasis added).) The Opinion cites no authority

implementing a balancing test to determine the enforceability

and scope of a freely executed arbitration agreement.

Document received by the CA 2nd District Court of Appeal.

The Opinion’s unsupported balancing test approach is a

mistake of law because it singles out religious arbitration for

disfavored treatment just because it is religious. The Opinion

claims that it “does not evince hostility to religion,” but it

announces a distinct rule that facially applies only to the

enforcement of religious – and not to secular – arbitration

agreements. The Opinion suggests that its conclusion that

Petitioners’ claims are not subject to arbitration is no different

than the analysis of the scope of secular arbitration agreements.

(See Opinion, 34-35.) However, the Opinion’s entire analysis is

different from the treatment of secular arbitration agreements.

Indeed, under the FAA, the provisions are enforceable as written.

9
See, e.g., Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc.

v. N.L.R.B. (1991) 501 U.S. 190, 201 (if the parties desire

arbitration “to resolve postexpiration disputes, the parties can

consent to that arrangement by explicit agreement”); see also

AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339

(courts must enforce arbitration agreements “according to their

terms”). Courts also enforce arbitration provisions that apply to

any dispute between the parties regardless of subject matter. See,

e.g., Mey v. DirecTV, LLC (4th Cir. 2020) 971 F.3d 284, 293

Document received by the CA 2nd District Court of Appeal.

(reversing order denying arbitration and holding provision

requiring arbitration of “all disputes and claims between us”

explicitly contemplated arbitration of claims beyond those arising

out of the contract); Bd. of Trustees of City of Delray Beach Police

& Firefighters Ret. Sys. v. Citigroup Glob. Markets, Inc. (11th Cir.

2010) 622 F.3d 1335, 1343.

But this Court’s analysis does not even rely on cases

construing the scope of arbitration agreements. Instead it

purports to “resolve the tension” between “two free exercise

rights.” (Opinion, 35.) The Opinion undertakes this analysis with

no reference to the language of the provisions themselves and

citing no applicable case law. Finally, the Opinion’s holding does

10
not purport to apply to secular arbitration agreements. It

advances a rule applicable only to the enforcement of religious

arbitration.

Yet the First Amendment prohibits rules that single out

religions for disfavored treatment just because they are religious.

The Free Exercise Clause “protects religious observers against

unequal treatment” and against “laws that impose special

disabilities on the basis of religious status.” Espinoza v. Montana

Dept. of Revenue (2020) 140 S.Ct. 2246, 2254 (quotes omitted). “At

Document received by the CA 2nd District Court of Appeal.

a minimum, the protections of the Free Exercise Clause pertain if

the law at issue discriminates against some or all religious beliefs

or regulates or prohibits conduct because it is undertaken for

religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah (1993) 508 U.S. 520, 532.

“[T]he government. . . cannot impose regulations that are

hostile to the religious beliefs of affected citizens and cannot act

in a manner that passes judgment upon or presupposes the

illegitimacy of religious beliefs and practices.” Masterpiece

Cakeshop, Ltd. v. Colorado Civ. Rights Com. (2018) 138 S.Ct.

1719, 1731. “Applying that basic principle,” the Supreme Court

has “repeatedly confirmed that denying a generally available

11
benefit solely on account of religious identity imposes a penalty

on the free exercise of religion that can be justified only by a state

interest of the highest order.” Trinity Lutheran Church of

Columbia, Inc. v. Comer (2017) 137 S.Ct. 2012, 2019 (quotes

omitted).

As was demonstrated by the Church Defendants’ Return,

courts uniformly apply the First Amendment’s non-

discrimination principles to religious arbitration agreements:

where the parties execute an arbitration agreement, courts

Document received by the CA 2nd District Court of Appeal.

enforce the terms of that agreement even if they call for

arbitration of secular claims under religious law and before

religiously qualified arbitrators. (See Return, 46.) In addressing a

challenge to a religious arbitration agreement because it was

religious, Encore Prods., Inc. v. Promise Keepers cautioned

against the approach adopted by the Opinion: “[r]efusal to enforce

the parties’ arbitration agreement could itself arguably constitute

an impermissible entanglement [with religion], impedance of the

practice of religion or creation of an unjust bias against religion,

thereby depriving [defendant] of its free exercise rights.” (D.Colo.

1999) 53 F.Supp.2d 1101, 1113 (citing Braunfeld v. Brown (1961)

366 U.S. 599, 607).

12
 The Court’s unprecedented holding also violates the FAA.1

The Agreements require arbitration of “any dispute, claim or

controversy.” That language encompasses Petitioners’ claims –

even as mischaracterized by the Opinion.2 The Opinion’s failure

to enforce the arbitration provisions “according to their terms”

violates the FAA. Concepcion, supra, 563 U.S. at p. 339; Dean

Witter Reynolds v. Byrd (1985) 470 U.S. 213, 218 (the FAA

“mandates that [] courts shall direct the parties to proceed to

arbitration on issues to which an arbitration agreement has been

Document received by the CA 2nd District Court of Appeal.

signed.”). The Opinion’s rule also announces a defense to

enforcement that applies only to agreements to arbitrate, and not

to other types of contracts, which is prohibited by the FAA. 9

U.S.C. § 2; Concepcion, supra, 563 U.S. at p. 339, 341.

Rehearing is required to correct these mistakes of law. See

Alameda County Mgmt. Employees Assn. v. Superior Court (2011)

195 Cal.App.4th 325, 338, n.10.

1 The FAA applies. (6 EP 1500.)

2As set forth below, there is no factual basis for the unbriefed
and unsupported characterization of Petitioners’ claims as after-
arising, non-ecclesiastical claims. Sections II.B.1. & II.D., infra.

13
B. Rehearing Must Be Ordered Because the Court’s
Decision Is Based on Unbriefed Issues

A timely petition for rehearing must be granted if the

decision was based on an issue not raised or briefed by any party

and the court failed to give the parties an opportunity to present

supplemental briefing on that issue. Cal. Gov. Code § 68081;

People v. Alice (2007) 41 Cal.4th 668, 674-679.

1. The Basis of the Opinion Was Not Proposed or

Addressed by Either Party and Encompasses
Several Unbriefed Issues

The Writ Petition argued that Scientology arbitration is a

Document received by the CA 2nd District Court of Appeal.

religious ritual, and therefore, the Trial Court’s Order precluding

Petitioners from proceeding in civil court somehow compelled

Petitioners to participate in a religious ritual. (See generally

Petition, 26-35 & 29; id., 17, 26, 28, 29, 30, 38 (referring to

Scientology arbitration as a “religious ritual” or “ceremony”);

Request for Judicial Notice, Exhibit A (“RJN Ex. A”), 5:9-12

(“they cannot trap believers in being participants in a religious

service of a faith that those believers have now rejected.”); id.,

8:3-6.) The Court understood this was Petitioners’ key contention.

(Id., 13:25-14:6 (“You say that this is going to be a religious

ceremony or a religious ritual.”).)

14
 The Opinion rejected Petitioners’ “religious ritual”

argument as “immaterial” and sua sponte crafted and adopted its

own basis for declining to enforce the Agreements:

[P]etitioners spend considerable time on whether

Scientology arbitration constitutes a religious ritual, such
that compelling their participation in the ritual would
violate their First Amendment rights for that reason.
Whether Scientology arbitration is a ritual is
immaterial to our analysis. The issue properly
phrased is: after petitioners have left the faith, can
Scientology still require that all of Scientology’s future
conduct with respect to petitioners – including torts of
whatever kind – be governed by Scientology law, with
disputes to be resolved solely in Scientology tribunals by
Scientology members?”

Document received by the CA 2nd District Court of Appeal.

(Opinion, 26-27 (emphasis added).) Based on this articulation, the

Court held that enforcement of the arbitration agreements as to

claims based on alleged tortious conduct supposedly occurring

after Petitioners’ separation from the Church which do not

implicate resolution of ecclesiastical issues would violate

Petitioners’ “right to leave the faith.” (Id., 3, 23, 35.)

This is not a simple “rephrasing” of the issue. This

articulation encompasses several material issues not briefed by

the Parties.

15
 Unbriefed Issue 1.A: Whether Petitioners’ claims are

based on alleged tortious conduct occurring only after

they left the faith.

Petitioners’ briefing contradicts the Opinion’s classification

of their claims as arising out of conduct that occurred solely after

they left the Church. The Petition and Petitioners’ Reply both

expressly state: “Petitioners alleged these acts occurred both

while they were in the religion and after they exited the

religion.” (Petition, 7 & Reply, 6 (emphasis added).)

Document received by the CA 2nd District Court of Appeal.

The Opinion acknowledges this assertion, but notes that

Petitioners’ supplemental reply brief states the “causes of action

are based on conduct after they left the Church . . .” (Opinion, 36.)

The Opinion adopts Petitioners’ “final representation” in their

supplemental brief and “construe[s] petitioners’ claims for relief

as limited to conduct occurring after they left the faith.” (Id.)

The Opinion “predicat[ing]” its decision on this “final

representation” is inappropriate for four legal reasons. First, the

Court must confine its “analysis to the complaint as written” and

cannot permit Petitioners to recharacterize their pleading

through an unsworn statement by appellate counsel in response

to requested letter briefing. See Farmers Ins. Exchange v.

16
Superior Court (1992) 2 Cal.4th 377, 397; In re Zeth S. (2003) 31

Cal.4th 396, 414 n.11.

Second, the Petition was verified by Petitioners’ counsel,

unlike the unverified supplemental reply brief. (Petition, 25.)

Petitioners’ verified statements should control.

Third, the Church Defendants responded to the position

advanced in the Petition – that Petitioners’ claims arose before

and after departure from the religion and that the timing of the

accrual of the claims was immaterial to the relief sought. By

Document received by the CA 2nd District Court of Appeal.

adopting Petitioners’ “final representation” in supplemental

briefing on an unrelated issue, the Court chose the position that

the Church Defendants were not given the opportunity to

respond to on appeal.

And fourth, as noted below, the Court’s focus on when the

conduct underlying the claims allegedly occurred is unbriefed and

immaterial, as agreements to arbitrate can (and in this instance

do) cover claims that accrue after the underlying contract has

ended. See, e.g., Mey, supra, 971 F.3d at p. 293.

The Court’s resolution of this issue is also factually

unsupported. There is no evidence in the record establishing

when Petitioners left the Church. The Opinion appears to rely on

17
Petitioners’ allegations in the First Amended Complaint (“FAC”)

to establish these “facts,” (see Opinion, 7), however, the

allegations of Petitioners’ unverified complaint are not evidence,

Thomson v. Anderson (2003) 113 Cal.App.4th 258, 271. Nor is

there any evidence in the record for what it means, as a matter of

Church governance and doctrine, to have “left” the Scientology

religion. Indeed, the Opinion permits the avoidance of contractual

obligations through the mere suggestion that an individual has

left the faith; as the Court noted at argument, this invites

Document received by the CA 2nd District Court of Appeal.

gamesmanship. (RJN Ex. A, 60:22-62:12.)

The Opinion states that “Bixler-Zavala asserts that he

never joined the Church,” (Opinion, 7, n.6 & 6, n.5), and that

Jane Doe #1 “does not allege that she voluntarily left the

Church,” but was instead excluded from practicing the religion by

the Church, (id., 28). It is unclear how the Court’s holding can be

applied in the context of these factual issues. If Bixler-Zavala

“never joined” the Church, when did he “separat[e] from the

church,” (see id., 3) or “le[ave] Scientology,” (id. at 36 & 23 n.19)?

If Jane Doe #1 never “voluntarily left the Church” when did she

“lea[ve] the Church,” (see id. at 36 & 23 n.19) or “impliedly []

18
withdraw [her] consent to be governed by its religious rules,” (see

id. at 36)?

Finally, Petitioners’ claims originate from their

relationship with the Church and from alleged conduct that

began while they were members. The Opinion states “[a]s to

whether the conduct that occurred while petitioners were still

Church members was actionable, or merely background, the

complaint is not entirely clear,” but asserts that the causes of

action are premised on the allegation that “Defendants

Document received by the CA 2nd District Court of Appeal.

surveilled, harassed, stalked, and photographed Plaintiffs.”

(Opinion, 7-8.) The Opinion then assumes that these alleged acts

occurred only after Petitioners left the Church.3 (See id.)

3 The assumption that these acts occurred only after Petitioners

left the religion appears to rely upon Petitioners’ imagined
Church doctrine of Fair Game. The finding that the supposed
harassment occurred exclusively after Petitioners left the Church
assumes the following unestablished or refuted facts: (1) being
declared a Suppressive Person defines when a person has left
Scientology; (2) Suppressive Persons are subjected to harassment
under a “Fair Game” doctrine; and (3) only Suppressive Persons
are subjected to any harassment by the Church. There is no
evidence in the record for any of these assumptions, which
implicate numerous doctrinal issues, and are therefore,
nonjusticiable. See Presbyterian Church in the U.S. v. Mary
Elizabeth Blue Hull Mem. Church (1969) 393 U.S. 440, 450.

19
 Petitioners’ own statements contradict this assumption.

The verified Petition expressly states that this specific conduct

began while Petitioners were still members: “Petitioners

were relentlessly terrorized, stalked and harassed . . . both while

they were in the religion and after they exited the religion.”

(Petition, 7.) Further, the FAC claims that the alleged

harassment began when Petitioners “came forward to speak

about their assaults and/or report Masterson’s crimes.” (1 EP 10

¶ 15; 1 EP 7 ¶ 1.) Petitioners each allege that they reported or

Document received by the CA 2nd District Court of Appeal.

spoke about their assaults for the first time while they were

members of the Church. (1 EP 21-24 ¶¶ 67-77 (Bixler); 1 EP 36-

38 ¶¶ 152-163 (Jane Doe #1); 1 EP 51 ¶ 244 (Jane Doe #2).)

Petitioners even allege that their attempts to resolve their

disputes with the Church over Masterson began while Church

members. Bixler and Jane Doe #1 allege that in response to their

reporting, the Church rejected their allegations and required

them to receive religious services and instruction, (1 EP 21-24 ¶¶

67-77 (Bixler); 1 EP 36-38 ¶¶ 152-163 (Jane Doe #1).) Jane Doe

#2 alleges that she confided in others about the alleged assault

while she was still a member of the Church, (1 EP 51 ¶ 244), and

received solicitations that she return to the Church after she

20
“began withdrawing” – both before and after she reported the

alleged assault to the police, (1 EP 51 ¶¶ 244-45, 1 EP 52 ¶ 251).

Petitioners allege that while they were members of the Church,

the Church attempted to cover up the alleged assaults and

dissuade them from reporting or discussing them. (1 EP 19 ¶ 58;

1 EP 23 ¶ 73.) They allege they were dissatisfied with the

Church’s handling (or anticipated handling) of their reports and

that speaking about the alleged assaults negatively impacted

their status in the Church. (See, e.g., 1 EP 26 ¶ 87, 1 EP 21-24 ¶¶

Document received by the CA 2nd District Court of Appeal.

67-77 (Bixler); 1 EP 40 ¶ 170, 1 EP 36-38 ¶¶ 152-163 (Jane Doe

#1); 1 EP 51 ¶¶ 244-45, 247 (Jane Doe #2); Petition, 7.)

Unbriefed Issue 1.B: Whether the timing of the

alleged tortious conduct relative to Petitioners’ exit from

the faith is material to enforcement of the arbitration

agreements.

Neither party proposed or briefed a key distinction of the

holding: that claims arising from conduct that occurred while

Petitioners were members of the faith should be treated

differently from claims arising from conduct that occurred after

Petitioners had exited the faith. Instead, Petitioners argued

21
that the timing of the allegedly actionable conduct was

immaterial to the enforceability of the agreements.

When the Court asked the Church Defendants’ counsel

about “whether the conduct that occurs after they leave the

Church, which seems to be the focus of the complaint, can still be

subject to the arbitration agreement,” the Church Defendants’

counsel specifically alerted the Court that this issue “was not

addressed in the petition itself.” (RJN Ex. A, 38:19-39:17.)

After clarifying the issue had not been briefed, the Church

Document received by the CA 2nd District Court of Appeal.

Defendants’ counsel stated that arbitration agreements applied

to “any dispute” including disputes that arose after the

termination of the relationship, and clarified that “Petitioners

allege these actions occurred both while they were in the religion

and after they exited the religion.” (Id., 40:9-20, 42:5-9.)

In the Trial Court, Petitioners expressly rejected the

proposal that the timing of the allegedly actionable conduct was

material.

THE COURT: So let’s get back to my -- to my illustration

here or my hypothetical about the person who leaves the
employment where, I believe, that they’re still subject to
the arbitration agreement in the employment contract. Are
you saying that the rule is different for a church member
that if they have an arbitration agreement, even if the
conflict arises while they are a church member, once

22
 they say, “I’m leaving the church, I don’t believe anymore,”
that at that point, they’re no longer subject to the
arbitration agreement?

MS. HAMILTON: That’s right, your honor. This Court

could not -- may not, under the First Amendment, enforce
an agreement against someone who has chosen to choose a
different belief.

(5 EP 1393-1394; see also 5 EP 1392-1393.) At the hearing on the

Petition, Petitioners’ counsel continued to advance the position

that the timing of the conduct was immaterial – arguing that

religious arbitration agreements are never enforceable against

individuals who have exited the religion. (RJN Ex. A, 7:4-11.)

Document received by the CA 2nd District Court of Appeal.

When the Court asked Petitioners’ counsel, “if there is a dispute

that arises from events that happened while they are still

members of the Church, why cannot that dispute be arbitrated,

even after they have left?” Petitioners’ counsel responded “I think

the question, frankly, of how you can be forced into arbitration

while a member is a different question. It’s just not what we’re

talking about. These are non-members.” (Id., 59:24-60:10; see also

id., 60:22-62:12.) These representations are consistent with

Petitioners’ long-standing position that their status in the

Church – and not when the allegedly actionable conduct occurred

23
– controls whether the Arbitration Order violates the First

Amendment.

Unbriefed Issue 1.C: Whether the nature of the

claims – ecclesiastical or secular -- matters to the

enforceability of the arbitration agreements.

Petitioners asserted that religious arbitration of any claim

– whether secular or implicating religious doctrine – would

violate their First Amendment rights. (See, e.g., Petition, 26.) The

Church Defendants never directly addressed the issue of whether

Document received by the CA 2nd District Court of Appeal.

the claims were secular or required resolution of ecclesiastical

issues because Petitioners never challenged the Trial Court’s

finding that their claims fell within the scope of the arbitration

provisions. (See Return, 9, 36 (scope is not at issue).) In any

event, neither party contended that religious and secular claims

should be treated differently for purposes of enforcement of the

arbitration agreement.

Unbriefed Issue 1.D: What is the right to leave a

faith?

Petitioners defined the right to leave a faith as the right to

abstain from believing in it and practicing its rituals. (Petition,

32; see also Opinion, 26.) Petitioners argued Scientology

24
arbitration was a religious ritual, and therefore, their agreement

to that forum violated their right to leave a faith.

Yet the Court decided that the “ritual” argument was

“immaterial,” (Opinion, 26), rejecting Petitioners’ basis for the

First Amendment violation and their definition of the right to

leave a faith.

The Opinion’s proffered definition of the “right to leave a

faith” is sweeping and unbounded. Its controlling articulation is

that individuals have a right to “extricate themselves from the

Document received by the CA 2nd District Court of Appeal.

faith” and not be “bound by Scientology dispute resolution.”

(Opinion, 37 & 35 (citing no authority in support of this

definition).) The right to leave the faith, as defined by this Court,

includes the right to narrow the scope of freely executed contracts

containing forum selection clauses that call for resolution of

disputes in Church arbitration. There is no end to this “right.”4

The Opinion’s cited authority defines the right to leave a

faith as: (1) “the right of unhindered and unimpeded withdrawal

from the chosen form of worship,” (Opinion, 25 (quoting Guinn v.

4 Does this right permit modification of other contractual

relationships with religious institutions or just forum selection
clauses?

25
Church of Christ of Collinsville (Okla. 1989) 775 P.2d 766, 777));

(2) “the right to change her religious beliefs and to share those

beliefs with her offspring,” (Opinion, 26 (quoting In re Marriage

of Weiss (1996) 42 Cal.App.4th 106, 118)); and (3) “constitutional

freedom to question, to doubt, and to change one’s convictions,”

Zummo v. Zummo (Pa.Super 1990) 574 A.2d 1130, 1146 (cited at

Opinion, 24-26); Abbo v. Briskin (Fla.Dist.Ct.App. 1995) 660 So.

2d 1157, 1159 (cited at Opinion, 28 n.20). None of this authority

encompasses the right to unilaterally revoke a freely executed

Document received by the CA 2nd District Court of Appeal.

arbitration agreement and proceed in civil court despite the clear

waiver of the civil forum.

The Petition defined the right to leave a faith as the right

to be free from compelled ritual practice and asserted that

definition as warranting writ relief for irreparable harm. But

that is not the articulation of the right adopted by the Opinion.

The Church Defendants must be afforded the opportunity to brief

the definition and scope of the “right to leave a faith,” which the

Church Defendants represent would not be implicated – much

less violated – by enforcement of a freely-executed forum

selection clause. See Section II.C.1., infra.

26
 2. Whether the Church Can Enforce the
Agreements Against Jane Doe #1 After
“Excluding” Her From Religious Services Was
Never Raised or Briefed

The Opinion concludes the arbitration agreements are

unenforceable as to Jane Doe #1 using a different analysis:

“Having excluded Jane Doe #1 from its religious services. . . the

Church cannot now enforce against Jane Doe #1 the arbitration

clause in the agreement she signed in order to obtain the

religious services from which she was excluded.” (Opinion, 28.)

This analysis and the assumptions it rests on were never raised

Document received by the CA 2nd District Court of Appeal.

by the Court or briefed by the Parties.5

///

///

5The Opinion’s summary of Jane Doe’s status also contains

misstatements of fact and an impermissible doctrinal conclusion.
The record shows Jane Doe #1 has not been declared a
Suppressive Person. (11 DEO 2569.) Jane Doe #1’s conclusory
declaration statement (4 EP 1099) does not establish the
contrary. Furthermore, the Court assumed, and incorrectly so,
that Jane Doe #1’s supposed exclusion from one form of religious
service meant that she was no longer in the Church or not
eligible for other religious services (such as Ethics courses). This
assumption about Scientology doctrine is both incorrect and an
impermissible interpretation of religious doctrine by a secular
authority. See Presbyterian Church in the U.S., supra, 393 U.S.
440, 450. By analogy, to refuse a Catholic communion for
failure to go to confession does not mean that Catholic has
“left” Catholicism.

27
 3. Whether the Agreements Constitute a Clear and
Compelling Relinquishment of Petitioners’
Right to Leave the Church Was Not Raised or
Briefed

The Opinion concludes “[o]n their face these agreements do

not purport to waive petitioners’ right to leave the church,” yet

concedes in the preceding sentence that the Parties did not brief

the issue. (Opinion, 37, n.23 (“The parties did not brief

whether the language of the agreement constitutes a clear and

compelling relinquishment of the right to leave the faith and/or

the concomitant right to withdraw consent to be ruled by the

Document received by the CA 2nd District Court of Appeal.

faith.”) (emphasis added).)

This unbriefed issue is a basis of the Court’s decision, and

the Court’s conclusion is plainly incorrect. This controversy is not

about Petitioners’ “right to withdraw consent to be ruled by the

faith” or of the Church compelling any conduct of Petitioners.

Rather, it is about Petitioners’ “clear and compelling

relinquishment of their right” to bring claims against the Church

in civil courts as an express condition for joining the Church. The

Court’s conclusion that there was no waiver of that right is belied

by the enduring agreement to submit disputes to the religious

28
forum and “forever” waive the right to civil recourse (see, e.g.,

Opinion, 10-11).

4. Whether Petitioners’ Claims Arise From the

Contractual Relationship Was Not Briefed

The Opinion incorrectly concludes that Petitioners’ claims

“do not stem from the contractual relationship.” (Opinion, 34.)

Yet, the Parties never briefed whether Petitioners’ claims “stem

from” or arise from the contractual relationship. Indeed, because

the arbitration provisions cover “any dispute” between the

Parties (see, e.g., 6 EP 1501-1503; Return, 26, n.7; Opinion, 10-

Document received by the CA 2nd District Court of Appeal.

11), Petitioners did not challenge the finding of the Trial Court

that their claims fell within the scope of the arbitration

provisions. And, in fact, there is no requirement that claims

otherwise subject to an arbitration provision “stem from” some

other part of an agreement.6

In any event, the conclusion is legally and factually

incorrect. Even where the arbitration provision requires the

claims to arise from the agreements, that requirement is met

here. See, e.g., Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress

Intern., Ltd. (7th Cir. 1993) 1 F.3d 639, 642 (“‘Arising out of’

6 (6 EP 1501-03); see Mey, supra, 971 F.3d at p. 293.

29
reaches all disputes having their origin or genesis in the

contract.”).7 If the allegations underlying the claims “touch

matters” covered by the agreement, then those claims must be

arbitrated. Parm v. Bluestem Brands, Inc. (8th Cir. 2018) 898

F.3d 869, 874, 876. Petitioners’ claims, as pled by them, have

their genesis in their relationship with the Church – and that

relationship is created and defined by the Agreements.

Petitioners’ claims include allegations regarding instruction and

religious services they received from the Church while they were

Document received by the CA 2nd District Court of Appeal.

members and in response to reporting the alleged assaults. They

also claim that the Church Defendants conspired to cover up the

assaults and dissuade Petitioners from reporting the assaults to

police. (1 EP 10, 19 ¶¶15, 58 & 1 EP 22-27 ¶¶ 70, 72, 73, 92

(Bixler); 1 EP 36-40 ¶¶ 152, 154, 157-58, 163, 171 (Jane Doe #1);

1 EP 51-52 ¶¶ 244, 248 (Jane Doe #2).) Petitioners allege that

Church doctrine forbade them from reporting their assaults, that

7 The Opinion’s only cited authority, Buckhorn v. St. Jude

Heritage Medical Group is in accord. In Buckhorn, the arbitration
provision required the claims “concern[] the enforcement or
interpretation of any provisions of this agreement.” (2004) 121
Cal.App.4th 1401, 1406. The court compelled arbitration because
the plaintiff “failed to demonstrate his tort claims were ‘wholly
independent’” of the agreement. Id. at 1407-08.

30
they were then declared “Suppressive Persons” for making such

reports, and then targeted under the alleged Church doctrine of

“Fair Game” for harassment for the violations of Church doctrine.

(1 EP 10-14, ¶¶ 15, 30, 38, 1 EP 19 ¶ 58; 1 EP 54-55 ¶¶ 264, 270,

273.) Petitioners’ claims unquestionably “touch matters” covered

by the Agreements, which govern enrollment in religious services

and instruction in Church doctrine, and which require that

Petitioners be bound by Church doctrine and law in all dealings

with the Church. (7 DEO 1639-44 ¶¶ 2, 4, 6, 6a.-e., 8, 9.)

Document received by the CA 2nd District Court of Appeal.

In short, the Court’s holding relies upon numerous

arguments and issues that the Church Defendants were never

given an opportunity to brief – and that Petitioners in some

instances rejected. Rehearing is required. Cal. Gov. Code § 68081.

C. Additional Mistakes of Law Warrant Rehearing

1. The Opinion Incorrectly Decides the State

Action Issue Because It Applies Inapposite Law
and Ignores Controlling Authority

The Opinion failed to apply controlling authority holding

that the enforcement of contractual agreements between

contracting parties – and specifically the enforcement of

arbitration agreements – does not constitute state action. The

31
state action requirement is dispositive of the issue presented by

the Petition, and the Court did not apply it.

The state action authority is unambiguous that

enforcement of an arbitration agreement or other mutual

contract does not constitute state action, even where a party

relinquishes a constitutional right in the agreement (as is the

case with every arbitration agreement in relinquishing the right

to a jury). Rather than apply this authority, the Opinion cites a

trio of child custody cases instead, In re Marriage of Weiss, Abbo

Document received by the CA 2nd District Court of Appeal.

v. Briskin, and Zummo v. Zummo, as “the appropriate

precedent.” (Opinion, 27-28, n.20.) This is a mistake of law for

several reasons.

First, these child custody cases do not address the “state

action” requirement for a constitutional violation, which was the

issue briefed by the Parties and before the Court. (Petition, 26-35;

Return, 49-52; Reply, 18-20.) Weiss, Zummo, and Abbo do not

hold that enforcement of the domestic arrangements at issue

would constitute state action and violate a party’s First

Amendment right to leave a faith. These authorities find that

32
enforcement of premarital agreements to raise children in a

certain religion are unenforceable on public policy grounds.8

The Opinion’s precise resolution of the state action question

is unclear. The Opinion does not expressly state whether the

Court found state action present or not. (Opinion, 27-28, n.20.) If

the Opinion found state action present by relying on Weiss,

Zummo, and Abbo, rehearing is required because this is a

mistake of law.9 Weiss, Zummo, and Abbo are not authority on

the question of state action for constitutional violations because

Document received by the CA 2nd District Court of Appeal.

they do not decide the issue. See Los Angeles County Metropolitan

Trans. Auth. v. Yum Yum Donut Shops, Inc. (2019) 32

Cal.App.5th 662, 673 (“cases are not authority for propositions

8Abbo, supra, 660 So.2d at p. 1159 (“the law will enforce any
such bargain so long as it is not against public policy. We have
grave doubts, however, that the law could or should enforce an
unwritten premarriage agreement to raise a child in one faith or
the other.”); Zummo, supra, 394 Pa.Super. at p. 58 (“enforcement
would be contrary to a public policy embodied in the First
Amendment Establishment and Free Exercise Clauses (as well as
their state equivalents) that parents be free to doubt, question,
and change their beliefs, and that they be free to instruct their
children in accordance with those beliefs”); Weiss, supra, 42
Cal.App.4th at p. 118 (finding agreement “not legally enforceable”
applying Zummo’s reasoning).
9If the Opinion found state action was not present, it is a mistake
of law to find a constitutional violation. See Roberts v. AT&T
Mobility LLC (9th Cir. 2017) 877 F.3d 833, 837.

33
not considered”). The Church Defendants’ authority regarding

the state action requirement is the controlling authority on this

issue.10

Second, it was a separate mistake of law to apply Weiss,

Zummo, and Abbo because they have nothing to do with

arbitration. They are child custody cases and are controlled by

judicial assessment of whether exposing a child to alternative

faiths would endanger the child’s welfare. See, e.g., Weiss, supra,

42 Cal.App.4th at p. 111-12. Further, the domestic agreements

Document received by the CA 2nd District Court of Appeal.

were vague, and embodied the parents’ “hopeful assurances” –

much like (unenforceable) wedding vows that Weiss cited by

10The Opinion states that the Church Defendants “rel[ied] on

cases which do not involve compelling a party to participate in
religious arbitration.” (Opinion, 27, n.20.) It does not explain why
or how enforcement of a forum selection clause designating a
church as the arbitral forum would constitute state action when
enforcing an AAA forum selection clause does not. (Opinion, 27,
n.20.) Such a rule would constitute a separate mistake of
law because it would discriminate against religions.
Moreover, the Court perhaps was misled by Petitioners’ Reply,
which falsely stated that no court had ordered religious
arbitration over the objections of non-believers or members of
other religious divisions. The Church Defendants cited numerous
cases compelling religious arbitration, including over First
Amendment objections. Spivey v. Teen Challenge of Fla., Inc.
(Fla.Dist.Ct.App. 2013) 122 So.3d 986, 988; Encore, supra, 53
F.Supp.2d at p. 1111; Elmora Hebrew Center, Inc. v. Fishman
(1991) 125 N.J. 404, 416-17 (cited by Return, 53).

34
analogy. Id., at 109, 114-15. By contrast, the unambiguous

arbitration agreements here enjoy a presumption in favor of

enforceability, and courts are required to enforce them absent

generally applicable contract defenses. See 9 U.S.C. § 2;

Concepcion, supra, 563 U.S. at p. 339; Cal. Civ. Proc. Code §

1281.2(b); Erickson v. Aetna Health Plans of Calif. (1999) 71

Cal.App.4th 646, 655.

Third, Weiss, Zummo, and Abbo do not apply because, to

the extent that they depend upon a First Amendment issue, the

Document received by the CA 2nd District Court of Appeal.

controlling First Amendment concern was judicial entanglement

with religious doctrine – not the right to leave a faith. In those

cases, litigants asked the court to compel a parent to

participate in or refrain from religious practice. See Abbo,

supra, 660 So.2d at p. 1159; Weiss, supra, 42 Cal.App.4th at p.

110; Zummo, supra, 394 Pa.Super. at p. 1146. Enforcement

placed the court in the impossible position of evaluating whether

a parent sufficiently complied with a vague, aspirational

commitment of raising a child as “loyal” to a faith. Weiss. supra,

42 Cal.App.4th at p. 109. These concerns are not present here.

Courts do not “entangle” themselves in religious disputes by

enforcing agreements to litigate claims in religious fora. Meshel v.

35
Ohev Sholom Talmud Torah (D.C.Ct.App. 2005) 869 A.2d 343,

354; Sieger v. Sieger (N.Y.Sup.Ct. June 29, 2005, No. 6975/98) 8

Misc.3d 1029, 2015 WL 2031746, at *50-51 (cited by Petition, 11-

12).

Fourth, Weiss, Zummo, and Abbo do not apply because the

right to leave a faith is not implicated. Weiss, Zummo, and Abbo

concern acts of worship and religious practice and define the

right to leave a faith as the ability to change religious beliefs and

practices. (Opinion, 24-25); Section II.B.1., supra. Here, the Court

Document received by the CA 2nd District Court of Appeal.

found the question of whether religious rituals are implicated to

be “immaterial.” And to be sure, enforcing Petitioners’

Agreements does not require Petitioners to practice the faith. (9

DEO 2055-2056 ¶ 23 (arbitration participants need not be

practicing Scientologists and arbitration does not require any

religious ceremony or service).) None of the Opinion’s cited

authority supports the determination that the right to leave a

faith encompasses the right to revoke a contractually-agreed-

upon forum for disputes. The “right to leave a faith” cannot serve

as a trump card to void express and unambiguous contractual

provisions.

36
 Consistent with this analysis that the Opinion’s application

of Weiss, Zummo, and Abbo was error, prior to the Opinion no

court had ever cited Weiss, Zummo, or Abbo in support of a

decision rejecting arbitration on religious grounds. Furthermore,

Weiss and Abbo are from jurisdictions where later decisions

explicitly rejected challenges to religious arbitration. Compare

Weiss, supra, 42 Cal.App.4th at p. 111 with Dial 800 v. Fesbinder

(2004) 118 Cal.App.4th 32, 41, 50 (this Court rejecting argument

that “confirmation of an award by a religious court according to

Document received by the CA 2nd District Court of Appeal.

religious law would violate the fundamental notion of separation

of church and state”); compare Abbo, supra, 660 So.2d at p. 1158

with Spivey, supra, 122 So.3d at pp. 991-95 (Florida court

enforcing religious arbitration). Still other cases have made clear

that the analysis in Zummo is inapplicable to enforcement of

arbitration agreements. See, e.g., Sotnick v. Sotnick

(Fla.Dist.Ct.App. 1995) 650 So.2d 157, 160 (quoting Zummo and

noting that although courts will not force parents to raise

children in a particular faith, religious arbitration agreements

remain enforceable).

///

///

37
 2. The Opinion Impermissibly Condemns the
Church’s Terms for Joining the Religion

Churches have a constitutional right to impose conditions

upon membership free from government intrusion. See Watson v.

Jones (1871) 80 U.S. 679, 729-31 (“We cannot decide who ought to

be members of the church. . . . [W]hen they became members they

did so upon the condition of continuing or not as they and their

churches might determine, and they thereby submit to the

ecclesiastical power and cannot now invoke the supervisory

power of the civil tribunals”); Our Lady of Guadalupe School v.

Document received by the CA 2nd District Court of Appeal.

Morrissey-Berru (2020) 140 S.Ct. 2049, 2060 (“State interference

in that sphere [of faith and doctrine] would obviously violate the

free exercise of religion, and any attempt by government to

dictate or even to influence such matters would constitute one of

the central attributes of an establishment of religion. The First

Amendment outlaws such intrusion”); Church of Scientology v.

City of Clearwater (11th Cir. 1993) 2 F.3d 1514, 1544.

The Opinion accepts that “[a]n ‘irrevocable’ agreement to

‘forever’ waive civil proceedings and submit to Scientology Ethics

and Justice Codes in ‘any dispute’ with the Churches of

Scientology is a condition for participation in the religion” and

38
that “this is one of the prices of joining [the Scientology] religion.”

(Opinion, 36-37.) Yet, the Opinion states that the “Constitution

forbids a price that high.” (Id.) In other words, the Opinion

proclaims that the Church cannot condition membership in its

faith on an agreement to submit to religious arbitration. Under

Watson and its progeny, the Court cannot sit in judgment of the

terms or “price” for initiation into a religion – be it a baptism, a

bar mitzvah, or an agreement for religious services – any more

than it can amend any other doctrine.

Document received by the CA 2nd District Court of Appeal.

D. Misstatements of Fact Warrant Rehearing

Rehearing is appropriate to correct misstatements of fact.

See Alameda County Management Employees Assn, supra, 195

Cal.App.4th at p. 338 n.10.11

In addition to the misstatements of fact identified above,

the Opinion incorrectly concludes that Petitioners’ claims “do not

implicate resolution of ecclesiastical issues.” (Opinion, 3; see also,

e.g., id., 32.) This is a mistake of fact and law.

11Even if the Court concludes that correcting the identified

misstatements of fact would not affect the decision, rehearing
should be granted to correct them because the Church
Defendants may seek Supreme Court review. See Cal. Rule of
Court 8.500(c)(2).

39
 Petitioners’ FAC devotes dozens of paragraphs and

multiple pages to describing what Petitioners allege are doctrines

of the Church, including untrue allegations that they are

“enemies” in the eyes of the Church and can be targeted for

retribution and harassment. (1 EP 14-18.) Petitioners have relied

on these untrue and defamatory allegations of an imagined

Church doctrine of “Fair Game” as the “evidence” to support their

claims. (4 EP 1079-1082.)

The Opinion recognizes the centrality of Petitioners’

Document received by the CA 2nd District Court of Appeal.

doctrine-based allegations: The first paragraph of the Opinion’s

summary of the allegations is a recitation of Petitioners’ false

characterization of Church doctrine – centered on the untrue and

refuted12 assertion that the Church has a doctrine called “Fair

Game.” (Opinion, 5.) The Opinion proceeds to use this false

doctrine of “Fair Game” as a shorthand for the alleged

harassment of Petitioners. (See, e.g., id., 5, 7, 8, 32, 35.) The

Opinion asserts that Petitioners’ claims “stem from the alleged

‘Fair Game’ campaign Scientology engaged in.” (Id., 34-35.)

12The Church has no doctrine called Fair Game. (5 EP 1317-18

¶ 5; see also Opinion, 19.)

40
 Petitioners intend to “prove” that doctrine in Court. The

Opinion recognizes this, asserting that “[i]n an apparent attempt

to pursue vicarious liability for the harassment campaign

allegedly waged against them, plaintiffs alleged that Fair Game

was, in fact, part of Scientology’s practices.” (Id., 32, n.21.) This

acknowledgment that a highly-disputed issue of alleged Church

doctrine forms the predicate of the vicarious liability theory

shows that ecclesiastical issues run throughout the claims as

pled.

Document received by the CA 2nd District Court of Appeal.

Similarly, the Opinion states that Petitioners allege “in

retaliation for their reports, the Church encouraged its members

to engage in a vicious campaign of harassment against them.”

(Id., 2.) That is not what Petitioners allege. They allege that the

Church’s doctrine and scripture command the campaign. Indeed,

Petitioners paper over the complete absence of evidence of

“encouragement” or any conduct by the Church by claiming the

supposed existence of “Fair Game” to substantiate their claims.

This difference matters because it puts at issue the existence of

Church doctrine and what it requires.

The Eleventh Circuit recently held that this exact dispute,

the existence or nonexistence of a doctrine of the Church of

41
Scientology regarding the treatment of Suppressive Persons, is

non-justiciable and requires judicial abstention. Garcia v. Church

of Scientology Flag Serv. Org., Inc. (11th Cir. Nov. 2, 2021) No.

18-13452, 2021 WL 5074465, at *8-*9 (conflicting presentations of

Scientology doctrine regarding the treatment of suppressive

persons cannot be resolved without violating the First

Amendment). This Court’s finding that religious abstention does

not apply and the Parties’ dispute does not implicate

ecclesiastical issues, is incorrect as a matter of law and fact.

Document received by the CA 2nd District Court of Appeal.

III. CONCLUSION

Rehearing should be ordered.

Dated: February 3, 2022 WINSTON & STRAWN LLP

By:
William H. Forman

Attorneys for Defendants and

Real Parties in Interest
Church of Scientology
International & Celebrity
Centre International

Dated: February 3, 2022 JEFFER MANGELS

BUTLER & MITCHELL LLP

By:
Matthew D. Hinks
Attorneys for Defendant and
Real Party in Interest
Religious Technology Center

42
 CERTIFICATE OF WORD COUNT

Pursuant to Rule 8.204(c)(1) of the California Rules of

Court and in reliance on the word count of the computer program

used to prepare this Petition for Rehearing, counsel certifies that

the text of this brief was produced using 13 point font and

contains 6,981 words.

Dated: February 3, 2022 WINSTON & STRAWN LLP

By:
William H. Forman

Document received by the CA 2nd District Court of Appeal.

Attorneys for Defendants and
Real Parties in Interest
Church of Scientology
International & Celebrity
Centre International

Dated: February 3, 2022 JEFFER MANGELS

BUTLER & MITCHELL LLP

By:
Matthew D. Hinks

Attorneys for Defendant and

Real Party in Interest
Religious Technology Center

43
 PROOF OF SERVICE
C.C.P. §1013(a), 2015.5

I, the undersigned, hereby declare under penalty of perjury

as follows: I am a citizen of the United States, and over the age of

eighteen years, and not a party to the within action; my business

address is 333 South Grand Avenue, Los Angeles, CA 90071-

1543. On this date, I served the interested parties in this action

the within documents: PETITION FOR REHEARING via the

Court’s online True Filing system as follows:

Document received by the CA 2nd District Court of Appeal.

Robert W. Thompson
Thompson Law Offices
700 Airport Boulevard, Suite 160
Burlingame, CA 94019
Email: [email protected]

Marci A. Hamilton
36 Timber Knoll Drive
Washington Crossing, PA 18977
Email: [email protected]

Andrew Brad Brettler

Lavely & Singer
2049 Century Park East
Suite 2400
Los Angeles, CA 90067
Email: [email protected]

I, the undersigned, also hereby declare under penalty of

perjury as follows: I am a citizen of the United States, and over

the age of eighteen years, and not a party to the within action;

44
my business address is 333 South Grand Avenue, Los Angeles,

CA 90071-1543. On this date, I forwarded the within documents:

PETITION FOR REHEARING

by U.S. Mail to:

Los Angeles County Superior Court (via USPS)

Central District, Stanley Mosk Courthouse, Dept. 37
111 North Hill Street
Los Angeles, CA 90012

Executed at Los Angeles, California on February 3, 2022.

Document received by the CA 2nd District Court of Appeal.

Pamela Tanigawa

45