to compel further discovery responses. On February 11, the trial court granted the
motion in part. The trial court’s order compelled Watchtower to produce all documents
Watchtower received in response to a letter sent by Watchtower to Jehovah’s Witness
congregations on March 14, 1997, concerning known molesters in the church (1997
Documents).
By November 2014, Watchtower had not produced the 1997 Documents, and
J.W. moved for terminating sanctions. At a hearing on the sanctions motion, the trial
court offered Watchtower four days to produce the 1997 Documents. Watchtower
declined the offer and refused to produce the 1997 Documents. The trial court granted
the motion for terminating sanctions and struck Watchtower’s answer. The trial court
clerk entered Watchtower’s default. After considering evidence, the trial court entered
judgment in favor of J.W. and awarded her $4,016,152.39.
On appeal, Watchtower raises four issues. First, Watchtower contends J.W.
failed to allege proximate cause in her first amended complaint (FAC). Second,
Watchtower asserts its right of due process was violated. Third, Watchtower contends
terminating sanctions were excessive because lesser sanctions may have been effective.
2
Fourth, Watchtower contends the trial court erred by denying Watchtower’s motion for
relief from the terminating sanctions. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. FAC
The facts in this subsection are taken from J.W.’s FAC. Watchtower “organized,
administered and directed the congregational affairs of Jehovah’s Witnesses in the
United States.” “The organizational structure of the Jehovah’s Witness Church is
hierarchical in nature. The organizational head of the Religion is the Watchtower.
Authority flows downward from Watchtower to the local level of the Church, which is
made up of congregations. [¶] Watchtower is the head of the Jehovah’s Witness
Hierarchical structure. Watchtower is directed by a Governing Body, which is
comprised of a fluctuating number of Elders.” “Watchtower establishes processes for
the discipline of members accused of wrongdoing, and receives and keeps records of
determinations of disfellowship, or of reproval of individuals appointed by Watchtower
and Ministerial Servants or Elders.”
In the hierarchical structure, the level below Watchtower is the circuit. “Circuits
are generally comprised of 20 to 22 Congregations.” The next level down consists of
the local congregations, which are managed by a body of elders. “Elders are the highest
authority at the congregational level and direct door to door preaching activities, select
potential candidates for becoming Ministerial Servants and Elders, organize weekly
church meetings, determine whether an individual is suitable for representing the church
in the community by becoming a Publisher, handle finances for the local church, and
3
determine the guilt, repentance and punishment of church members who commit serious
sins.
“To be appointed as an Elder, a person must be a Ministerial Servant in good
standing, or have served as an Elder in another congregation. The Body of Elders of the
local church identifies potential candidates and determines whether they are suitable,
and if they live their life in accordance with appropriate morals. Once a candidate has
been identified by the local church, a recommendation is made to Watchtower, or later,
CCJW (Christian Congregation of Jehovah’s Witnesses, Inc.), who have the ultimate
authority as to whether a candidate is approved and becomes an Elder.”
“Congregants are encouraged to bring problems to the Elders to be resolved
rather than to seek intervention from outside of the Jehovah’s Witness faith. In practice,
when a Congregant commits an act of wrongdoing, such as the sexual abuse of a child,
that matter may be brought to an Elder to be resolved.” If the alleged perpetrator
confesses, or if there are two witnesses to the alleged wrongdoing, then a judicial
committee will be convened.
J.W. is a female. J.W. was born in 1997. J.W. was raised as a Jehovah’s
Witness. In July 2006, J.W. and Gilbert Simental 1 belonged to the Mountain View
Congregation of Jehovah’s Witnesses. Prior to July 2006, at a different congregation,
Simental served as a ministerial servant and as an elder. Upon joining the Mountain
1 J.W. spelled Simental’s name as Simentel. We use the spelling from Simental’s criminal case: People v. Simental (August 10, 2009, E046303) [nonpublished opinion] [2009 Cal. App. Unpub. LEXIS 6407].
4
View congregation, Simental served as an elder. Simental’s position as an elder created
access to J.W.
“On July 15, 2006, [J.W.] and three other girls were invited to a slumber party at
[Simental’s] home. [Simental] had a daughter near the age of [J.W.] and the other
invited girls. [¶] During that afternoon, [Simental] joined the girls in a pool in the
backyard. While in the pool, [Simental] sexually molested [J.W.] and another girl (Doe
1) in separate incidents. Doe 1’s sister, Doe 2, had previously been molested on two
occasions by [Simental].”
Doe 1 and Doe 2 told their mother about Simental molesting them. The mother
contacted an elder of the congregation, and a judicial committee was convened.
Simental admitted he molested Doe 2 on two occasions, and that he molested Doe 1
twice on July 15. The judicial committee reproved Simental.
The principal of Doe 1 and Doe 2’s school was notified of the abuse, and s/he
reported it to law enforcement. Approximately two months after July 15, J.W.’s parents
received a telephone call from the Murrieta Police Department asking if Simental
sexually abused J.W. J.W.’s father (Father) spoke to the elders of the Mountain View
congregation who advised Father that J.W. did not have to speak with the police.
J.W. and her family began attending a different congregation—the French Valley
Congregation of Jehovah’s Witnesses. Unbeknownst to J.W. and her family, Simental
also moved to the French Valley congregation. Approximately one year after July
2006, J.W. informed her parents of the extent of Simental’s sexual touching. J.W.’s
parents spoke to the police and then to the elders of the French Valley congregation.
5
The elders came to J.W.’s home and “interrogated JW, who was approximately ten
years of age, about the abuse in explicit detail. JW, and her parents, were very upset by
the explicit nature of the questions asked, and the depth to which the Elders probed for
information.”
Father told the elders that he was thinking of requesting a restraining order
against Simental. The elders told Father that he did not need to speak to the police,
“and that to do so would bring reproach on the congregation.” In two criminal cases,
Simental was found guilty of molesting Doe 1, Doe 2, and J.W. 2
J.W.’s first cause of action was for negligence. J.W. asserted Watchtower had a
duty to protect J.W., who was entrusted to Watchtower’s care by J.W.’s parents. J.W.
asserted Watchtower had a duty to control Simental and prevent him from sexually
molesting children. J.W. alleged that Watchtower was “aware, prior to the sexual abuse
of [J.W.] herein, of [Simental’s] dangerous and exploitive propensities. [Watchtower
was] also aware that [it] had the ability to place restrictions on [Simental’s] access to
children, service and preaching activities, give warnings to the congregation, and
otherwise control Simental’s conduct.”
Further, J.W. alleged Watchtower had a duty to investigate Simental and to not
employ Simental as a ministerial servant or elder. J.W. asserted Watchtower knew
Simental “was likely to harm others in light of the work entrusted to him.” J.W.
2The criminal appellate case concerning Doe 1 and Doe 2 is People v. Simental (August 10, 2009, E046303) [nonpublished opinion] [2009 Cal. App. Unpub. LEXIS 6407].
6
alleged, Watchtower “knew or reasonably should have known of [Simental’s]
dangerous and exploitive propensities and/or that [Simental] was an unfit agent. It was
foreseeable that if [Watchtower] did not adequately exercise or provide the duty of care
owed to children in their care, including but not limited to [J.W.], the children entrusted
to [Watchtower’s] care would be vulnerable to sexual abuse by [Simental].”
J.W.’s second cause of action was for negligent supervision/failure to warn. J.W.
alleged Watchtower had a duty to provide reasonable supervision of Simental, to use
reasonable care in investigating Simental, and to provide adequate warning to J.W. and
her family of Simental’s dangerous propensities. J.W. further alleged that Watchtower
knew or reasonably should have known of Simental’s dangerous or exploitive
propensities, and despite such knowledge failed to adequately supervise Simental. J.W.
asserted Simental’s position as an elder allowed him to gain access to J.W.
J.W.’s third cause of action was for negligent hiring/retention. J.W. asserted
Watchtower knew or should have known of Simental’s dangerous or exploitive
propensities, and therefore had a duty not to hire or retain Simental as a ministerial
servant or elder. J.W.’s fourth cause of action was for negligent failure to warn, train,
or educate J.W. J.W. asserted Watchtower had a duty to protect her from sexual abuse
by Simental.
J.W.’s fifth cause of action was for sexual battery. J.W. asserted Simental was
aided in molesting J.W. “by his status as an agent of . . . Watchtower . . . . Without his
position as a . . . Ministerial Servant and/or Elder, [Simental] could not have
accomplished the harmful and offensive touching of [J.W.]” J.W.’s sixth cause of
7
action was for intentional infliction of emotional distress. J.W. alleged Watchtower’s
conduct was extreme and outrageous and done in an intentional or reckless manner.
In J.W.’s prayer for relief she wrote, “[J.W.] prays for damages; punitive
damages against Defendant Mountain View [Congregation of Jehovah’s Witnesses,
Murrieta, California]; costs; interest; statutory/civil penalties, according to law; and
such other relief as the court deems appropriate and just.”
B. ANSWER
Watchtower filed an answer. Watchtower alleged, what it labeled as, 12
affirmative defenses. The third affirmative defense alleged a failure to state a claim, the
ninth affirmative defense alleged Watchtower did not owe a duty to J.W., and the
eleventh affirmative defense alleged a lack of proximate cause.
C. MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS
1. MOTION
J.W. filed a motion to compel further responses to a request for the production of
documents. J.W. asserted she requested Watchtower produce various documents, and
Watchtower refused citing the clergy-penitent privilege. Request for production No. 66
(RFP 66) provided, “ALL DOCUMENTS received by YOU in response to the Body of
Elders letter dated March 14, 1997.” In her motion to compel, J.W. explained, “On
March 14, 1997, Watchtower addressed a letter to All Bodies of Elders, which required
all Congregations to check their files and respond in writing to the Service Department
explaining all occasions when a person who was known to have molested a child was
8
promoted to a responsible position in the Congregation, including positions as an Elder
or Ministerial Servant, among others.”
J.W. argued, “Any information received by Watchtower in response to this letter
. . . is relevant to understanding the formation of organizational policy regarding
childhood sexual abuse, and is also relevant toward establishing the level of institutional
knowledge of [Watchtower] regarding childhood sexual abuse, which is relevant in
establishing the reasonableness of organizational policy, efforts to educate members,
supervision of [J.W.] and Simental, and other considerations concerning duty and
breach. Also, [J.W.] has alleged a claim for punitive damages against Defendant
Mountain View, and will consider amending to allege a claim for punitive damages
against the other Defendants. [S]uch information is relevant to a punitive damage[s]
claim.”
J.W. asserted the clergy-penitent privilege was not applicable because the
responses to the March 14, 1997, letter were made with the understanding that they
would be shared with others. J.W. requested sanctions be imposed in the amount of
$1,680.
2. J.W.’S SEPARATE STATEMENT
Watchtower objected to RFP 66 based upon (1) the minister-communicant
privilege; (2) invasion of privacy; (3) the request not leading to admissible evidence;
and (4) the request being overbroad. Further, Watchtower responded that it did not have
any documents predating July 15, 2006, concerning Simental, which were sent in
response to the March 14, 1997, letter.
9
J.W. argued that any information received by Watchtower in response to the
March 14, 1997, letter would be relevant to understanding Watchtower’s
“organizational policy regarding childhood sexual abuse,” as well as understanding
Watchtower’s “level of institutional knowledge . . . regarding childhood sexual abuse.”
J.W. asserted evidence of Watchtower’s knowledge would be relevant to proving duty
and breach, as well as a possible future claim for punitive damages.
3. OPPOSITION
Watchtower opposed J.W.’s motion to compel, arguing, “Watchtower produced a
‘Privilege Log,’ which identified fifteen (15) items constituting all the records
responsive to [J.W.’s] search. Watchtower contends that [J.W.]’s request unreasonably
exceeds the proper scope of discovery and that court ordered production of any of the
records would constitute an unnecessary, unconstitutional, interference with the internal
governance of a church.” The privilege log related to J.W.’s request for production No.
2.
Further, Watchtower asserted the slumber party, at which J.W. was molested,
was not a church sponsored event. Watchtower contended Simental was a regular
congregation member in July 2006; he was not an elder. Watchtower contended it did
not have any records indicating Watchtower knew, prior to July 2006, that Simental
posed a risk of harm to children.
In a declaration by Watchtower’s Associate General Counsel, Mario F. Moreno,
he asserted attorney-client privilege applied to various documents requested by J.W.
10
Moreno specifically identified various documents and explained why the attorney-client
privilege should be applied. Moreno did not specifically identify the 1997 Documents.
4. RESPONSE
J.W. responded to Watchtower’s opposition. J.W. asserted Watchtower failed to
address the portion of her motion to compel related to the 1997 Documents. J.W.
contended that Watchtower’s failure to oppose that portion of her motion should be
treated as a concession.
5. HEARING
On February 11, 2014, the trial court, in particular Judge Peterson, held a hearing
on J.W.’s motion to compel. The trial court denied J.W.’s motion in relation to specific
documents that were identified as protected by the attorney-client privilege. As to all
other documents/requests, the trial court granted J.W.’s motion. The minute order from
the hearing reads, “Motion is granted and denied in part [¶] ruling as stated on the
record.” (All caps. omitted.)
D. MOTION TO SET ASIDE
1. MOTION
Watchtower filed a motion to set aside the trial court’s order compelling
Watchtower to produce the 1997 Documents, or, in the alternative to issue a protective
order. Watchtower asserted, “This particular aspect of the Court’s order, however, was
entered without opposing argument by Watchtower as a result of [the] mistake and
excusable neglect of Watchtower’s counsel Calvin Rouse and Rocky Copley.”
Watchtower asserted it objected to RFP 66, but did not address RFP 66 in its opposition
11
to the motion to compel because it did not understand that the motion included RFP 66.
Watchtower asserted its confusion was due to (1) four separate motions having been
filed, and (2) the motion to compel focusing primarily on issues other than RFP 66.
Watchtower requested leave to file an amended opposition. Watchtower asserted
RFP 66 was overbroad; the 1997 Documents were protected by attorney-client
privilege; and that it would take approximately 19 years to go through the 14,000
congregation files to produce the 1997 Documents.
2. OPPOSITION
J.W. opposed Watchtower’s motion to set aside the order compelling production
of the 1997 Documents. J.W. asserted Watchtower could not have been confused about
RFP 66 being part of the motion to compel because a section of the motion expressly
discussed the 1997 Documents, and a section of J.W.’s reply specifically discussed
Watchtower’s failure to address RFP 66 in its opposition. Thus, J.W. reasoned that RFP
66 was explicitly mentioned as part of the motion, and, therefore, it was not an
excusable mistake that Watchtower failed to oppose the motion to compel as it related
to RFP 66.
In regard to the production of the 1997 Documents being too burdensome, J.W.
asserted Watchtower’s person most knowledgeable testified that the records had been
scanned into a computer system and that the text was searchable. J.W. asserted it was
not an undue burden to search a computer system. As to the alternative request for a
protective order, J.W. asserted Watchtower’s request was too late and lacked merit.
J.W. requested sanctions be imposed in the amount of $6,480.
12
3. RESPONSE
Watchtower responded to J.W.’s opposition. Watchtower conceded that RFP 66
was part of J.W.’s motion to compel, but asserted it was its attorneys’ excusable neglect
that caused Watchtower’s failure to oppose that portion of the motion. Watchtower
contended (1) it objected to RFP 66, and, thus, there was no explanation, other than
oversight, for counsel’s failure to oppose RFP 66 within the motion to compel;
(2) counsel was working on four separate motions to compel; and (3) the motions were
confusing to the trial court and J.W.’s counsel as well.
Watchtower conceded the files were electronic, but that an elder would still need
“to review more than 14,000 congregations’ files to determine if the hundreds of pages
in each file were relevant. . . . That is because the sin of child abuse is often time
described by elders who write to the Service Department by the Scriptural description of
the specific sinful act, such as ‘porneia’, ‘fornication’, ‘loose conduct’, or ‘uncleanness.’
A search of the term ‘child abuse’ would not produce the documents requested.”
Watchtower contended the search would be further complicated by different states’
definitions of child abuse because what is identified as child abuse in one state may not
qualify as child abuse in California. Watchtower asserted its request for a protective
order was timely. Watchtower requested the trial court deny J.W.’s request for
sanctions.
4. REPLY
J.W. filed a reply. J.W. asserted expert testimony reflected it “ ‘could take as
little as two days and as long as two months’ ” to retrieve the 1997 Documents. The
13
expert explained that finding the documents did not need to be complicated, although
one could make it complicated. For example, one could use a search tool already
provided by Microsoft, or one could program a new search tool.
5. HEARING
On May 9, 2014, the trial court, specifically Commissioner Gregory, held a
hearing on Watchtower’s motion to set aside the February 11 order. The trial court said
Watchtower asserted clergy-penitent privilege in opposition to the motion to compel as
it concerned RFP 66. The court said, “That argument was presented before the Court.
Whether it was adequately argued to the satisfaction of defense counsel, it’s not to be
revisited at this time. It was argued, it must have been rejected. And at this point, I see
no reason to further consider the—the correctness of the Court’s order ordering further
responses to the request for production of Document Number 66.”
In regard to the production of the 1997 Documents being too burdensome, the
trial court said “those are issues that well could, and more importantly, should have
been raised much, much earlier than today.” The trial court found the request for a
protective order to be untimely. The trial court took the motion to set aside under
submission.
6. RULING
On May 13, the trial court denied Watchtower’s motion to set aside the order
compelling production of the 1997 Documents. The trial court wrote that Watchtower
“shall provide a full and complete response without objection or claim of privilege, and
14
shall further produce, all documents responsive to [J.W.]’s request for production,
number 66, within 30 days.” The trial court denied J.W.’s request for sanctions.
On June 23, the trial court issued an order that was specific to RFP 66. The trial
court specifically denied Watchtower’s request to set aside the order compelling a
further response to RFP 66. The trial court denied J.W.’s request for sanctions, finding
that Watchtower acted with substantial justification in bringing the motion to set aside.
7. WRIT PETITION
Watchtower petitioned this court for a writ of mandate. (Watchtower Bible and
Tract Society of New York, Inc. v. Superior Court (E061557) [order denying, Aug. 1,
2014].) Watchtower asserted the 1997 Documents fell within the clergy-penitent
privilege; the trial court violated the Establishment Clause and Free Exercise Clause of
the United States Constitution; the trial court’s order violated the privacy rights of third
parties; and the trial court’s order was unduly burdensome.
On July 23, 2014, this court issued a stay of the document production. On
August 1, this court dissolved the stay and denied the writ petition. This court’s order
provided, “First, petitioner’s request for a ‘protective order’ was in fact a disguised
motion for reconsideration made with no attempt to comply with Code of Civil
Procedure section 1008. Second, petitioner failed to establish that a blanket privilege
for penitent-clergy communications applied to every document sought, many of which
may well have contained completely nonprivileged information from reporting parties
such as victims or parents of victims. Third, in light of the apparent concession that
15
petitioner’s repository of documents has been electronically scanned and is ‘searchable,’
the claims of burden and harassment (which were tardily made) are not persuasive.”
8. PETITION FOR REVIEW
Watchtower petitioned the Supreme Court for review of this court’s August 1
order denying the writ petition. On September 24, the Supreme Court denied
Watchtower’s petition.
E. MOTION FOR SANCTIONS
1. MOTION
On November 17, 2014, J.W. filed a motion for terminating sanctions. J.W.
argued that she served her request for production of documents on September 25, 2013,
and despite court orders, Watchtower had not produced the 1997 Documents over one
year after being served. J.W. explained that after the appellate process, on September
29, 2014, she wrote to Watchtower seeking production of the 1997 Documents, but
Watchtower did not respond. On October 22 and November 5, J.W. again sought to
meet and confer regarding production of the 1997 Documents, but Watchtower did not
respond.
J.W. asserted the 1997 Documents were necessary to proving her negligence-
based causes of action, and for an anticipated claim for punitive damages. 3 J.W.
3 “No claim for punitive or exemplary damages against a religious corporation . . . shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive or exemplary damages to be filed.” (Code Civ. Proc., § 425.14.) A court may grant leave to file an amended pleading requesting punitive damages only upon an affidavit reflecting the plaintiff has [footnote continued on next page]
16
contended monetary sanctions could not repair the damage caused by Watchtower’s
withholding of the 1997 Documents because J.W. needed the 1997 Documents to prove
her case. J.W. asserted sanctions establishing liability and punitive damages would be
insufficient because the jury awarding damages would not see the harmful documents.
J.W. asserted that Watchtower’s misuse of the discovery process caused it to forfeit its
right to defend itself in the instant case. J.W. requested the trial court strike
Watchtower’s answer.
2. OPPOSITION
Watchtower opposed J.W.’s motion for sanctions. Watchtower asserted
terminating sanctions were an extreme remedy that would deny Watchtower its right of
due process. Watchtower contended the 1997 Documents were not relevant to J.W.’s
case, and therefore, it would be improper to impose terminating sanctions for the failure
to produce the 1997 Documents. Watchtower asserted J.W.’s case would fail on the
merits because Simental was only a member of the congregation—he did not hold a
higher position—and therefore, Watchtower bore no responsibility for his actions. As a
result, Watchtower reasoned that terminating sanctions would place J.W. in a better
position than she would have been in had the 1997 Documents been produced.
[footnote continued from previous page] [footnote continued from previous page] evidence, meeting the clear and convincing standard of proof, to establish punitive damages. (Code Civ. Proc., § 425.14.)
17
3. REPLY
J.W. filed a reply to Watchtower’s opposition. J.W. asserted that Watchtower’s
arguments reflected it disagreed with the trial court’s order compelling production of the
1997 Documents. J.W. contended that Watchtower’s “egregious contempt” for the trial
court’s authority warranted the imposition of terminating sanctions.
J.W. argued the 1997 Documents were relevant to her case because they could
establish duty and breach for her negligence-based causes of action, and they were
relevant to her anticipated punitive damages claim. J.W. asserted that because the 1997
Documents were relevant to a large portion of her case, terminating sanctions would not
result in a windfall to J.W.
4. HEARING
On January 26, 2015, the trial court, in particular Judge Marquez, held a hearing
on J.W.’s motion for sanctions. The trial court said its tentative ruling was to give
Watchtower until January 30 to produce the 1997 Documents, and if the 1997
Documents were not produced, then the court would consider striking Watchtower’s
answer. The trial court explained that it did not want further argument about the
relevance of the 1997 Documents because that issue had already been litigated. The
court explained that the 1997 Documents needed to be produced by January 30.
Watchtower asserted that there was not a motion to compel pending and
therefore the trial court could not order Watchtower to produce the 1997 Documents by
January 30. The trial court explained that it was continuing the sanctions hearing to
allow Watchtower time to comply with the February 11, 2014, order. Watchtower
18
asserted that if the trial court was continuing the hearing, then Watchtower would
appear on January 30 to argue the issue of sanctions. The trial court responded, “I see.
So you don’t want to—your intent is not to turn over or produce the files that were
ordered on February 11; is that correct?”
Watchtower responded that it would argue the issue of sanctions, in particular, it
would explain how the 1997 Documents do not relate to the merits of J.W.’s case. The
trial court said, “So you want to argue the issue of the relevancy that has already been
litigated . . . before Judge Peters[o]n, which was then taken up to the District Court of
Appeal, and then to the Supreme Court? You’d like to argue that once more in this
court?” Watchtower explained that sanctions should relate to the harm that J.W. would
suffer, and the withholding of the 1997 Documents would not cause harm to the merits
of J.W.’s case—the 1997 Documents could only be relevant to an anticipated claim of
punitive damages.
The trial court said, “Well, the Court’s tentative is that it is going to grant the
motion and will strike the answer if the—the information that has been ordered to be
produced is not produced. [¶] The Court wanted to give you one last opportunity to
comply before exercising that type of a sanction.” Watchtower argued it would be
inappropriate to strike its answer when the 1997 Documents only relate to punitive
damages. The trial court asked, “Have you not had that opportunity to argue that before
Judge Peters[o]n, before the DCA, and before the Supreme Court?” Watchtower
asserted those prior arguments concerned the motion to compel, i.e., whether the 1997
19
Documents needed to be produced, while the current argument concerned potential
harm to J.W. due to Watchtower’s failure to produce the 1997 Documents.
The trial court asked, “So you’re arguing instead the degree of the sanction?
You’re agreeing that there is an order[,] that it has not been complied with, but that the
sanction is improper?” Watchtower responded, “Correct.” The trial court explained,
“There was no briefing on the issue of issue[s] sanctions. Watchtower is included as a
defendant on all six causes of action. And the issue of the [1997 Documents] clearly
has been found to be relevant to—to the issue of negligence, which would pertain to the
first, second, third, and fourth causes of action. [¶] However, on the issue of the
intentional torts and having to do with sexual battery and intentional infliction of
emotional distress, that’s where the Court has its concerns, and that wasn’t briefed by
either party. And so I don’t know that the issue of the [1997 Documents] has to do with
[causes of action] five and six.”
Watchtower responded, “I would argue that it does not pertain to the liability in
[the] first phase of this trial at all.” The trial court said, “That’s already been litigated,
and that has already been ordered to be produced.” Watchtower argued the 1997
Documents would not be introduced in the liability phase of trial because “these
documents have nothing to do with this victim and that perpetrator.” The court said,
“That argument has been made throughout the litigation.” Watchtower asserted any
sanctions should only relate to the punitive damages phase of the litigation.
J.W. said that if the trial court’s tentative ruling was to grant terminating
sanctions for the negligence causes of action, then J.W. would dismiss her intentional
20
tort causes of action. Watchtower argued that if only the negligence causes of action
remained, then the 1997 Documents had no relevance to the case, and there should be
no sanctions. J.W. asserted the 1997 Documents were relevant to the negligence causes
of actions. The trial court granted J.W.’s motion to dismiss her two intentional tort
causes of action. The court took the issue of sanctions under submission.
5. RULING
On February 2, 2015, the trial court issued its ruling on J.W.’s motion for
terminating sanctions. The trial court found Watchtower willfully violated the court’s
February 11, 2014, order by refusing to produce the 1997 Documents, which were
relevant to J.W.’s four negligence-based causes of action. The trial court explained that
the 1997 Documents were relevant to the issue of duty, in particular J.W.’s allegation
that Watchtower failed to reasonably investigate Simental and failed to warn J.W. The
trial court explained that Watchtower had exhausted its appellate remedies concerning
the February 11 order, but still refused to produce the 1997 Documents.
The trial court wrote, “At the January 26, 2015 hearing . . . , the Court attempted
to give Watchtower another opportunity to produce these documents before ruling on
the motion. However, Watchtower rejected this additional opportunity and refused to
produce the outstanding documents. Watchtower does not deny that the documents at
issue are responsive to the February 11, 2014 court order or that it has been ordered to
produce these documents. Based on Watchtower’s refusal to produce these
documents—despite looming terminating sanctions that would strike Watchtower’s
Answer—the imposition of lesser sanctions (like monetary sanctions) is insufficient to
21
obtain compliance.” The trial court granted J.W.’s motion for terminating sanctions and
ordered Watchtower’s answer be stricken.
6. DEFAULT
J.W. requested entry of Watchtower’s default. The trial court clerk entered the
default on March 23, 2015.
F. MOTION FOR RELIEF
1. MOTION
On July 7, 2015, Watchtower filed a motion for relief from the order granting
terminating sanctions. Watchtower asserted that, in February 2015 it was unable to
produce the 1997 Documents because running computer searches for relevant
documents caused the computer system to crash. Watchtower contended that its
inability to comply with the court’s order entitled it to relief under a theory of extrinsic
mistake. Watchtower explained that, in March 2015 it developed software that allowed
searches to be successfully conducted without the computer crashing.
Watchtower wrote that it “has a satisfactory excuse for not presenting a defense
previously; it did not know how to electronically search for and identify the responsive
documents.” Watchtower contended it had a meritorious defense to J.W.’s lawsuit, in
that Watchtower bore no responsibility for Simental, Watchtower had no knowledge of
a threat posed by Simental, and the molestation did not occur at a congregation event.
2. OPPOSITION
J.W. opposed Watchtower’s motion for relief. J.W. asserted that Watchtower
failed to explain what mistake it had made, so as to justify a motion for relief. (Code
22
Civ. Proc., § 473, subd. (b).) J.W. argued that if Watchtower experienced technical
difficulties in complying with the trial court’s order, then it should have informed the
court of those difficulties when the trial court announced its tentative ruling. Further,
J.W. argued that Watchtower’s motion was untimely because it was not brought in a
reasonable amount of time due to the software being developed in March, and the
motion being brought in July.
3. RESPONSE
Watchtower responded to J.W.’s opposition. Watchtower asserted its inability to
produce the 1997 Documents was an extrinsic mistake that caused it to be unable to
comply with the court’s order. Watchtower asserted that it would have produced the
1997 Documents if it had been able to do so, and it was producing the 1997 Documents
in another case. Watchtower explained that it did not inform the court, in January 2015
of its technical difficulties because it did not know that, in March 2015 it would
successfully develop a program to search the 1997 Documents. Watchtower explained
that because it did not know the technical issues would be resolved, it chose to confine
its January arguments to the issue of the 1997 Documents being irrelevant.
4. HEARING
On July 29 and August 5, the trial court, again Judge Marquez, held hearings on
Watchtower’s motion. The trial court’s tentative ruling was to deny Watchtower’s
motion due to Watchtower lacking standing, due to being in default. The trial court
held a second hearing to permit the parties to discuss a recently published Supreme
Court case.
23
Watchtower explained that while the software was developed in March, portions
of the 1997 Documents were produced for the first time in May, in a San Diego County
case. The trial court asked why the computer difficulties were not mentioned in
January. Watchtower explained that it would not have been able to comply with the
court’s order by January 30, so it did not argue the computer issue.
J.W. argued that Watchtower was in default and therefore lacked standing to
move for relief from the terminating sanctions. J.W. explained that Watchtower needed
to seek relief from the default in order to have standing. Watchtower explained that it
did not have grounds to seek relief from the default.
The trial court explained that Watchtower’s motion was, in substance, a motion
for reconsideration of the motion for terminating sanctions based upon new evidence.
The trial court explained that such a motion is required to be brought within 10 days.
Watchtower explained that it was seeking equitable relief based upon extrinsic mistake.
The trial court asked if Watchtower was making a strategic decision to reopen the
instant case due to the 1997 Documents having been disclosed in the San Diego County
case. Watchtower explained it returned to court because its software was functioning
properly.
The trial court concluded Watchtower lacked standing to seek relief because it
was in default. Further, the court concluded Watchtower’s motion was an untimely
motion for reconsideration of the sanctions motion, and that Watchtower did not argue
new facts because the computer problems were known to Watchtower in January 2015.
To the extent the motion was a motion for relief, the trial court found Watchtower failed
24
to prove mistake, surprise, or excusable neglect because Watchtower knew of the
computer problems in May 2014 and thus could have raised them in January 2015. The
trial court concluded there was not a satisfactory explanation for Watchtower’s failure
to raise the computer issue in January 2015.
In regard to equitable relief, the trial court found Watchtower failed to prove
extrinsic fraud or mistake related to its failure to raise the computer issue in January
2015. The trial court found Watchtower’s refusal to comply with the court’s “February
11, 2014 order was tactical and strategic in nature,” and constituted “willful defiance of
the Court[’s] orders.” The court explained that Watchtower’s motion for relief was
brought only after Watchtower produced the 1997 Documents in a San Diego County
case. The trial court denied Watchtower’s motion.
G. DAMAGES
The trial court held a default prove-up hearing on the issue of damages. The trial
court considered exhibits that were submitted. The trial court awarded J.W. $3,000,000
for pain and suffering; $1,000,000 for future medical expenses; and $16,152.39 for
costs. The trial court entered judgment in favor of J.W. in the amount of $4,016,152.39.
DISCUSSION
A. PROXIMATE CAUSE
Watchtower contends J.W. failed to allege proximate cause in her FAC.
“On an appeal from a default judgment an objection that the complaint failed to
state facts sufficient to constitute a cause of action may be considered.” (Gore v. Witt
(1957) 149 Cal.App.2d 681, 686.) We apply the de novo standard of review when
25
considering whether a complaint alleges sufficient facts to state a cause of action, such
facts being assumed true for this purpose. (Lee v. Hanley (2015) 61 Cal.4th 1225,
1230.)
Our Supreme Court has “recognized that proximate cause has two aspects.
‘ “One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an
event. ”’ [Citation.] This is sometimes referred to as ‘but-for’ causation.
“The second aspect of proximate cause ‘focuses on public policy considerations.
Because the purported [factual] causes of an event may be traced back to the dawn of
humanity, the law has imposed additional “limitations on liability other than simple
causality.” [Citation.] “These additional limitations are related not only to the degree
of connection between the conduct and the injury, but also with public policy.”
[Citation.] Thus, “proximate cause ‘is ordinarily concerned, not with the fact of
causation, but with the various considerations of policy that limit an actor’s
responsibility for the consequences of his conduct.’ ” [Citation.]’ As Witkin puts it,
‘[t]he doctrine of proximate cause limits liability; i.e., in certain situations where the
defendant’s conduct is an actual cause of the harm, the defendant will nevertheless be
absolved because of the manner in which the injury occurred . . . . Rules of legal cause
. . . operate to relieve the defendant whose conduct is a cause in fact of the injury, where
it would be considered unjust to hold him or her legally responsible.’
“ ‘Ordinarily, proximate cause is a question of fact which cannot be decided as a
matter of law from the allegations of a complaint . . . . Nevertheless, where the facts are
such that the only reasonable conclusion is an absence of causation, the question is one
26
of law, not of fact.’ ” (State Dept. of State Hospitals v. Superior Court (2015) 61
Cal.4th 339, 352-353.)
We begin with the first factor—cause in fact. In the FAC, J.W. alleged the
Jehovah’s Witness Church is hierarchical in nature: authority begins with Watchtower
and flows down to the congregations. J.W. alleged that Simental was an elder in a
congregation prior to joining the Mountain View congregation, and then upon joining
the Mountain View congregation he was made an elder of that congregation. J.W.
alleged, “Without the access to [J.W.] created by [Simental’s] position with
[Watchtower] as a Baptized Publisher, Ministerial Servant and Elder, [Simental] could
not have sexually molested [J.W.]”
In the FAC, J.W. has alleged that it was Simental’s position of authority within
the church that created the opportunity for him to molest her. A reasonable inference
from this allegation is that J.W. met Simental due to his position within the church, and
her parents felt J.W. was safe in Simental’s care because he held a position of authority
in the church. Thus, Simental’s position as an elder in the church was a necessary
antecedent of the molestation. (See Liberty Surplus Ins. Corp. v. Ledesma & Meyer
Construction Co. (2018) 5 Cal.5th 216, 225 (Liberty) [employer’s “acts must be
considered the starting point of the series of events leading to Doe’s molestation”].)
J.W. sufficiently alleged that Watchtower was responsible for Simental being in a
position of authority within the church by alleging that Watchtower is the ultimate
authority in the Jehovah’s Witness Church.
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We now turn to legal causation. In California, an employer may be liable to a
third party for negligently hiring or retaining an unfit employee. (Evan F. v. Hughson
United Methodist Church (1992) 8 Cal.App.4th 828, 836.) Negligent hiring/retention is
a theory of direct liability—not vicarious liability. In a negligent hiring/retention cause
of action, the neglect alleged is not that of the employee. The neglect pleaded is that of
the employer itself. (Fernelius v. Pierce (1943) 22 Cal.2d 226, 233.)
An employer may be negligent because it has reason to know the employee,
because of his qualities, “ ‘ “is likely to harm others in view of the work or
instrumentalities entrusted to him. If the dangerous quality of the [employee] causes
harm, the [employer] may be liable under the rule that one initiating conduct having an
undue tendency to cause harm is liable therefor. . . . [¶] . . . An [employee] . . . may be
incompetent because of his reckless or vicious disposition, and if [an employer], without
exercising due care in selection, employs a vicious person to do an act which
necessarily brings him in contact with others while in the performance of a duty, he is
subject to liability for harm caused by the vicious propensity. . . . [¶] One who employs
another to act for him is not liable . . . merely because the one employed is incompetent,
vicious, or careless. If liability results it is because, under the circumstances, the
employer has not taken the care which a prudent man would take in selecting the person
for the business in hand. . . . [¶] Liability results . . . not because of the relation of the
parties but because the employer antecedently had reason to believe that an undue risk
of harm would exist because of the employment” ’ ” (Federico v. Superior Court (Jenry
G.) (1997) 59 Cal.App.4th 1207, 1213-1214.)
28
We examine whether J.W. sufficiently alleged that Watchtower had reason to
know of the threat of pedophilia posed by Simental. J.W. alleged, “Watchtower . . .
knew or reasonably should have known of [Simental’s] dangerous and exploitive
propensities and/or that [Simental] was an unfit agent. Despite such knowledge,
[Watchtower] negligently failed to supervise [Simental] in the position of trust and
authority as a Jehovah’s Witness . . . Elder, religious instructor, counselor, surrogate
parent . . . , where he was able to commit the wrong acts against [J.W.]”
J.W. alleged that Watchtower knew of the threat of pedophilia posed by
Simental, yet Watchtower permitted Simental to hold a position of authority that placed
him in the company of children. Because J.W. has alleged that Watchtower had
knowledge of the threat posed by Simental, she has sufficiently pled facts from which
Watchtower could be held legally responsible for the molestation. (See Mark K. v.
Roman Catholic Archbishop of Los Angeles (2003) 67 Cal.App.4th 603, 611-612 [the
liability of a church may be found where the church had reason to be suspicious of a
priest’s propensity for pedophilia].) In sum, J.W. has sufficiently pled proximate cause.
Watchtower contends proximate cause was not sufficiently pled because J.W. did
not allege that the slumber party was a church sponsored activity. Under a theory of
negligent hiring, an employer is held responsible for its hiring decision. This is a theory
of direct liability. (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.) It
differs from respondeat superior, which is a theory of vicarious liability. Under a theory
of respondeat superior, the employee must have been acting within the scope of his
employment at the time of the wrongdoing, and then the employer is held liable for the
29
employee’s bad act. 4 (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th
377, 393-394.)
Thus, under a negligent hiring/retention theory, the issue is not whether the
employee was acting within the scope of his employment, but whether the employer
acted properly in hiring or retaining the employee. As a result, a failure to plead that the
party was a church sponsored event does not mean causation could not be found by a
trier of fact. In a negligent hiring/retention analysis, the focus is on Watchtower’s
actions in hiring/retaining Simental, i.e, the risk of molestation that Watchtower
allegedly knowingly created. Accordingly, we are not persuaded that proximate cause
was improperly pled due to a failure to allege that the party was a church sponsored
event. (See e.g., Liberty, supra, 5 Cal.5th at p. 225 [“a finder of fact could conclude
that the causal connection between [the employer’s] alleged negligence and the injury
inflicted by [the employee] was close enough to justify the imposition of liability on
[the employer]. . . . [The employer’s] acts must be considered the starting point of the
series of events leading to Doe’s molestation”].)
Watchtower asserts this court would be contradicting the Restatement of Agency
by holding that J.W. adequately pled proximate cause. The Restatement provides, “A
principal who conducts an activity through an agent is subject to liability for harm to a
third party caused by the agent’s conduct if the harm was caused by the principal’s
4 “[W]e are not aware of any California decision that has held a religious institution liable under the theory of respondeat superior for the acts of institution personnel in molesting parishioners.” (Evan F. v. Hughson United Methodist Church, supra, 8 Cal.App.4th at p. 840, fn. 2.)
30
negligence in selecting, training, retaining, supervising, or otherwise controlling the
agent.” (Rest.3d Agency, § 7.05, p. 177.) A comment in the Restatement explains,
“[W]hen the actor’s tort occurs in the course of an extramural activity unrelated to the
actor’s employment, the tort may lack a sufficient causal relationship to the actor’s
employment.” (Rest.3d Agency, § 7.05, com. c.)
The Restatement reflects causation may not be present when the harm occurs
outside the work environment. It does not reflect that causation cannot be found when
the harm occurs outside the work environment. Because causation may be found when
the harm occurs outside the work environment, we are not persuaded that our
conclusion—that J.W. adequately pled proximate cause—contradicts the Restatement.
Watchtower asserts that our conclusion in this case—that proximate cause was
adequately pled in the FAC—will open the litigation floodgates. As set forth ante,
proximate cause issues are typically questions of fact. (State Dept. of State Hospitals v.
Superior Court, supra, 61 Cal.4th at pp. 352-353.) Our conclusion is limited to the facts
pled in J.W.’s FAC. Whether proximate cause is adequately pled in future cases will
need to be decided on a case-by-case basis. (See Liberty, supra, 5 Cal.5th at p. 223
[“California cases expressly recogniz[e] that negligent hiring, retention, or supervision
may be a substantial factor in a sexual molestation perpetrated by an employee,
depending on the facts presented”].) Accordingly, we are not persuaded that our
conclusion will open the litigation floodgates.
Watchtower contends proximate cause was not sufficiently pled because
Watchtower relinquished control over congregational affairs to the CCJW. In J.W.’s
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FAC, she alleged, “While supervised, directed and controlled by Defendants Mountain
View, French Valley, Watchtower and CCJW, Gilbert Siment[a]l committed the acts of
childhood sexual abuse alleged herein.” Thus, J.W.’s allegations reflect that
Watchtower was responsible for supervising Simental at the time of the molestation.
Watchtower contends proximate cause was not sufficiently pled because J.W.’s
allegation that Simental was appointed and confirmed as an elder was alleged on
information and belief. Watchtower contends the allegation is not well pled because
J.W. failed to allege facts supporting the basis for her belief that Simental served as an
elder.
When analyzing the sufficiency of a complaint, we treat all properly pled facts as
true. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) A “[p]laintiff may
allege on information and belief any matters that are not within [her] personal
knowledge, if [s]he has information leading [her] to believe that the allegations are
true.” (Pridnoff v. Balokovich (1951) 36 Cal.2d 788, 792.)
J.W. alleged that she has belonged to Jehovah’s Witness congregations from
birth until after she was molested. J.W. and Simental belonged to the Mountain View
congregation “and regularly attended Jehovah’s Witness meetings sponsored by that
congregation. [¶] . . . [J.W.] and her parents attended the same meetings at the same
Kingdom Hall as [Simental] twice per week.” It can reasonably be inferred from J.W.’s
allegations that her belief that Simental was an elder was based upon her participation in
the same congregation as Simental. Accordingly, we are not persuaded that J.W. failed
to properly plead proximate cause against Watchtower.
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B. DUE PROCESS
Watchtower contends the trial court violated Watchtower’s right of due process
by striking Watchtower’s answer due to a failure to comply with the February 11, 2014,
order because the February 11, 2014, order was not in writing. 5
We apply the de novo standard of review. (Bostean v. Los Angeles Unified
School District (1998) 63 Cal.App.4th 95, 107.) Due process requires adequate notice
be provided prior to the imposition of sanctions. (Caldwell v. Samuel Jewelers (1990)
222 Cal.App.3d 970, 976.) Watchtower is asserting the lack of a written order
compelling further discovery (on February 11, 2014) led to confusion about the required
discovery and thus, Watchtower lacked notice of what was required and therefore the
terminating sanctions were improper.
The trial court’s February 11, 2014, minute order reads, “Motion is granted and
denied in part[.] Ruling as stated on the record.” At the hearing on the motion for
terminating sanctions, Watchtower did not express confusion regarding the February 11,
5 In general, a defendant’s default admits the truth of the allegations in the plaintiff’s complaint. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823.) As a result, if “the defaulting party takes no steps in the trial court to set aside the default judgment, appeal from the default judgment presents for review only the questions of jurisdiction and the sufficiency of the pleadings.” (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766-767; Butenschoen v. Flaker (2017) 16 Cal.App.5th Supp. 10, 13.) However, an order granting terminating sanctions is not appealable, so the losing party must ordinarily await entry of a judgment of dismissal to seek review. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 264; Code Civ. Proc., § 904.1, subd. (b).) Watchtower is appealing from a default judgment. However, it did not have an opportunity to appeal from the order granting terminating sanctions and striking its answer. Because the issue raised is procedural, and this is Watchtower’s first opportunity to raise the issue for appellate review, we will address the issue.
33
2014, order compelling further discovery. At the sanctions hearing, the trial court
asked, “You’re agreeing that there is an order[,] that it has not been complied with, but
that the sanction is improper?” Watchtower responded, “Correct.” It appears from
Watchtower’s response that it understood the February 11, 2014, minute order because
Watchtower agreed there was an order and agreed it had not complied with the order—
Watchtower did not argue it was confused or that the February 11 minute order should
be interpreted in a different manner. Moreover, in March 2014 Watchtower filed a
motion to set aside the trial court’s order compelling production in response to RFP 66,
which indicates Watchtower understood the court ordered Watchtower to produce the
1997 Documents. Accordingly, because Watchtower understood that it was ordered to
produce the 1997 Documents, we conclude its right of due process was not violated.
Watchtower contends its right of due process was violated because, on February
11, 2014, Judge Peterson did not rule on Watchtower’s objections to RFP 66.
Watchtower’s objections were presented in J.W.’s separate statement. The separate
statement provided that Watchtower objected to RFP 66 based upon (1) the minister-
communicant privilege; (2) invasion of privacy; (3) the request not leading to
admissible evidence; and (4) the request being overbroad. Further, Watchtower asserted
that it did not have any documents predating July 15, 2006, concerning Simental, which
were sent in response to the March 14, 1997, letter.
When Judge Peterson began the February 11 hearing, he said in regard to all of
Watchtower’s objections to all of the requests for production, “[Watchtower] object[s]
on the following grounds: Number one, penitent/clergy privilege, attorney/client
34
privilege, attorney work product, privacy, and in several instances, the time period
which would cover the documents sought to be received.”
The court continued, “Turning to the issue of privacy, [Watchtower] cite[s] no
authority that there is a privacy right in this case. However, even if there is one,
disclosure of information relating to sexual predators of children outweigh any privacy.
That comes from the clergy cases. [¶] Objection to the time period. The defendants
want to stop discovery at the time of the slumber party, however [J.W.’s] response
overcomes this argument. [¶] . . . [¶] As to the penitent/clergy privilege, first of all,
[J.W.] argues collateral estoppel. The Court does not accept that argument . . . . [¶] . . .
[Watchtower] herein argue[s] that . . . just because the information is shared by a
congregation of elders should not take them out of the privilege. However, the Roman
Catholic Archbishop of Los Angeles case clearly states and holds that when the
communication is shared, the privilege is waived. . . . The court has also reviewed the
attorney/client and attorney work product issues.”
The trial court grouped all of the similar objections together for the various
requests for production, but the trial court did address the different objections. The trial
court’s comments reflect it read the objections, the responses, and the law relevant to
the objections. Accordingly, we are not persuaded that the trial court failed to rule on
Watchtower’s objections.
Watchtower contends Judge Peterson’s ruling on February 11, 2014, only
pertained to Request for Production No. 2—he did not rule upon RFP 66. At the end of
the February 11 hearing, J.W.’s attorney said, “There were a number of requests that
35
were separate and apart from the identified documents that we were discussing. . . . For
instance, [J.W.] sought the production of various iterations of the Jehovah’s Witness
Handbook to be produced as well as several letters.” Counsel continued, “So there’s
been no ruling with respect to those. And the ones that are significant would be the
elder handbooks.” The trial court responded, “Well, excuse me, [counsel]. [¶] My
ruling as to the objections and stating that all remaining items—the request for all
remaining items is granted, would that not include all those documents, the books?”
Counsel said, “So the ruling said that all the materials that were not specified as
being privileged are to be produced.” The trial court replied, “Certainly, and I
apologize if I wasn’t clear.” The trial court’s comments reflect that it considered the
objections to all of the items and that its ruling was meant to apply to all of J.W.’s
requests for production—it was not limited to Request for Production No. 2.
Accordingly, we conclude the trial court did not violate Watchtower’s right of due
process.
C. TERMINATING SANCTIONS
Watchtower contends the trial court erred by imposing terminating sanctions
because it was too severe of a sanction.
“California discovery law authorizes a range of penalties for a party’s refusal to
obey a discovery order, including monetary sanctions, evidentiary sanctions, issue
sanctions, and terminating sanctions. [Citations.] A court has broad discretion in
selecting the appropriate penalty, and we must uphold the court’s determination absent
36
an abuse of discretion. [Citation.] We defer to the court’s credibility decisions and
draw all reasonable inferences in support of the court’s ruling.
“Despite this broad discretion, the courts have long recognized that the
terminating sanction is a drastic penalty and should be used sparingly. [Citation.] A
trial court must be cautious when imposing a terminating sanction because the sanction
eliminates a party’s fundamental right to a trial, thus implicating due process rights.
[Citation.] The trial court should select a sanction that is ‘ “ ‘tailor[ed] . . . to the harm
caused by the withheld discovery.’ ” ’ [Citation.] ‘ “[S]anctions ‘should be appropriate
to the dereliction, and should not exceed that which is required to protect the interests of
the party entitled to but denied discovery.’ ” ’
“The discovery statutes thus ‘evince an incremental approach to discovery
sanctions, starting with monetary sanctions and ending with the ultimate sanction of
termination.’ [Citation.] Although in extreme cases a court has the authority to order a
terminating sanction as a first measure [citation], a terminating sanction should
generally not be imposed until the court has attempted less severe alternatives and found
them to be unsuccessful and/or the record clearly shows lesser sanctions would be
ineffective.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016)
246 Cal.App.4th 566, 604-605.)
Watchtower contends the trial court should have imposed an issue sanction
concerning the element of duty. In particular, Watchtower asserts the trial court should
have sanctioned Watchtower by forbidding Watchtower from arguing it did not owe a
duty to J.W. Watchtower did not raise this duty-focused argument in the trial court.
37
At the hearing on J.W.’s request for terminating sanctions, Watchtower argued
that the withholding of the 1997 Documents would not cause harm to the merits of
J.W.’s case in the liability phase of trial; Watchtower asserted the 1997 Documents
could only be relevant to an anticipated claim of punitive damages. Watchtower
asserted any sanctions should only relate to the punitive damages phase of the litigation.
Meanwhile, J.W. asserted the 1997 Documents could be relevant to duty, breach, and an
anticipated claim of punitive damages. J.W. requested terminating sanctions.
We cannot conclude the trial court abused its discretion by failing to enter an
order that was never suggested. (See Colony Ins. Co. v. Crusader Ins. Co. (2010) 188
Cal.App.4th 743, 750-751 [argument is forfeited due to failure to raise it in the trial
court].) Neither Watchtower nor J.W. argued for an issue sanction on the element of
duty. Therefore, the trial court did not abuse its discretion by not ordering a duty-
focused issue sanction.
Watchtower contends that when J.W. dismissed her intentional tort causes of
action, the trial court should have used that opportunity to consider imposing lesser
sanctions. When J.W. offered to dismiss her intentional tort causes of action for the
sake of obtaining terminating sanctions on her negligence-based causes of action,
Watchtower argued that if only the negligence causes of action were to remain, then the
1997 Documents had no relevance to the case, and there should be no sanctions.
Because Watchtower did not seek lesser sanctions when the intentional torts were
dismissed, we cannot fault the trial court for failing to order such lesser sanctions. (See
38
Colony Ins. Co. v. Crusader Ins. Co., supra, 188 Cal.App.4th at pp. 750-751 [argument
is forfeited due to failure to raise it in the trial court].)
Watchtower contends the trial court erred in its finding that lesser sanctions
would be ineffective. In its written ruling, the trial court wrote, “Based on
Watchtower’s refusal to produce these documents—despite looming terminating
sanctions that would strike Watchtower’s Answer—the imposition of lesser sanctions
(like monetary sanctions) is insufficient to obtain compliance.” The trial court said its
tentative opinion was to grant terminating sanctions, but it gave Watchtower four days
to start producing the 1997 Documents. Watchtower did not produce the 1997
Documents. Given that the prospect of terminating sanctions did not motivate
Watchtower to comply with the court’s discovery order, it is logical to conclude that
lesser sanctions would have been ineffective in motivating Watchtower to comply.
Accordingly, we conclude the trial court’s reasoning is sound.
Watchtower contends the trial court’s reasoning is erroneous because “a
responding party facing terminating sanctions would always forfeit consideration of a
lesser sanction by the mere fact that it has not complied.” This case does not present the
situation that Watchtower seems to describe in which a party does not comply and
terminating sanctions are immediately ordered. The key here is the court’s warning that
terminating sanctions would likely be granted, and the multi-day opportunity for
Watchtower to comply once notified of that possibility. The trial court gave
Watchtower notice that it would likely grant terminating sanctions after a four-day
period if Watchtower did not start producing the 1997 Documents, and Watchtower,
39
despite that warning, did not comply with the court’s nearly year-old discovery order.
Thus, with that particular procedural history, it was reasonable to conclude that lesser
sanctions would be ineffective in motivating Watchtower to comply with the court’s
discovery order. (See Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at
pp. 279-280 [“where a violation is willful, preceded by a history of abuse and the
evidence shows that less severe sanctions would not produce compliance with the
discovery rules, the trial court is justified in imposing the ultimate sanction”].)
D. MOTION FOR RECONSIDERATION
Watchtower contends the trial court erred by denying Watchtower’s motion to
set aside the order granting terminating sanctions.
Code of Civil Procedure section 1008 governs motions for reconsideration of
prior orders. It provides that “any party affected by the order may, within 10 days after
service upon the party of written notice of entry of the order and based upon new or
different facts, circumstances, or law, make application to the same judge or court that
made the order, to reconsider the matter and modify, amend, or revoke the prior order.”
(Code Civ. Proc., § 1008, subd. (a).) “The name of a motion is not controlling, and,
regardless of the name, a motion asking the trial court to decide the same matter
previously ruled on is a motion for reconsideration under Code of Civil Procedure
section 1008.” (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.)
The trial court granted terminating sanctions on February 2, 2015. Watchtower
moved for relief on July 7. In the motion, Watchtower argued that the order granting
terminating sanctions should be reconsidered because Watchtower gained the technical
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ability to comply with the trial court’s discovery order. Watchtower’s motion, in
substance, was a motion for reconsideration based upon new circumstances. The new
circumstances consisted of Watchtower’s newly acquired ability to search the 1997
Documents. Therefore, the motion had to be brought within 10 days of February 2.
Watchtower’s motion was not brought within 10 days of February 2, and therefore was
untimely. As a result, the trial court did not err by denying Watchtower’s motion.
Watchtower contends the trial court erred by concluding Watchtower lacked
standing to bring the motion for reconsideration, due to Watchtower being in default.
This court reviews the trial court’s ruling, not its reasoning. (Border Business Park, Inc.
v. City of San Diego (2006) 142 Cal.App.4th 1538, 1561.) As set forth ante, the trial
court could properly deny Watchtower’s motion due to it being untimely. Therefore,
the trial court did not err.
Watchtower contends the trial court should have construed its motion as a motion
for equitable relief from default. At the hearing on Watchtower’s motion, the trial court
asked, “[A]m I correct, that there has never been a motion to set aside the default?”
Watchtower responded, “There has not been, your Honor. Because we didn’t—we
didn’t have the grounds.” Watchtower did not inform the trial court that it wanted its
motion to be construed as a motion for relief from default. As a result, we cannot fault
the trial court for not treating the motion for reconsideration of the terminating sanctions
as a motion for relief from the default. (See Colony Ins. Co. v. Crusader Ins. Co.,
supra, 188 Cal.App.4th at pp. 750-751 [argument is forfeited due to failure to raise it in
the trial court].)
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Watchtower contends its motion was based in equity and should have been
granted due to Watchtower’s excusable neglect. “ ‘Excusable neglect’ is generally
defined as an error ‘ “ ‘a reasonably prudent person under the same or similar
circumstances might have made.’ ” ’ ” (Ambrose v. Michelin North America, Inc.
(2005) 134 Cal.App.4th 1350, 1354.)
In Watchtower’s motion, it explains that terminating sanctions were granted on
February 2, 2015, and, at the end of March 2015 Watchtower developed the ability to
search the 1997 Documents. Watchtower continued, “Accordingly, being now able to
produce the documents ordered by this Court, Watchtower is offering to do so on a
rolling basis as it is doing in [a San Diego County case].” Watchtower has not
explained a mistake or error that occurred prior to February 2. Rather, Watchtower has
set forth a change in circumstance. The new circumstance is that Watchtower gained
the ability to search the 1997 Documents. A change in circumstance does not equate
with a mistake or error. Accordingly, to the extent Watchtower’s motion could be
construed as seeking equitable relief, the trial court did not abuse its discretion in
denying the motion because excusable neglect was not shown. In sum, the trial court
did not err.
E. REQUESTS FOR JUDICIAL NOTICE
J.W. requests we take judicial notice of various documents. Watchtower opposes
the request. First, J.W. requests we take judicial notice of an appellant’s opening brief
received by the California Court of Appeal Fourth District, Division One in Padron v.
Watchtower Bible and Tract Society of New York, Inc. (D070723). The brief is marked
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as received by the appellate court; it is not marked as filed. J.W.’s counsel declares the
brief is a true and correct copy of the brief filed by the court. The brief filed by the
court would bear a file stamp, unlike the brief provided in this request that is marked as
received by the court. Accordingly, it does not appear to be a conformed copy. (Wolf v.
CDS Devco (2010) 185 Cal.App.4th 903, 914-915 [requesting party bears the burden of
providing a conformed copy or explaining why a conformed copy is unavailable].)
Because the brief is not marked as filed by the court, we deny J.W.’s request that we
take judicial notice of the brief. (Ibid.; Evid. Code, § 452, subd. (d).)
Second, J.W. requests we take judicial notice of a discovery referee’s
recommendation in Padron v. Doe 1 (San Diego County Superior Court case No. 37-
2013-00067529-CU-PO-CTL). The document does not bear a stamp reflecting it was
filed by the court. J.W.’s counsel declares the brief is a true and correct copy of the
brief filed by the court. The document filed by the court would bear a file stamp, which
this document does not. Therefore, it does not appear to be a conformed copy. (Wolf v.
CDS Devco, supra, 185 Cal.App.4th at pp. 914-915 [requesting party bears the burden
of providing a conformed copy or explaining why a conformed copy is unavailable].)
Accordingly, we deny J.W.’s request that we take judicial notice of the referee’s
Third, J.W. requests we take judicial notice of two minute orders from Padron v.
Doe 1 (San Diego County Superior Court case No. 37-2013-00067529-CU-PO-CTL),
and two minute orders from Lopez v. Doe 1 Linda Vista Church (San Diego County
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Superior Court case No. 37-2012-00099849-CU-PO-CTL). We grant the request.
(Evid. Code, §§ 452, subd. (d), 453.)
Watchtower contends the minute orders are irrelevant and therefore the request
should be denied. We have not relied on the minute orders in our opinion, and we do
not find the minute orders to be helpful in this case because, as Watchtower notes, the
minute orders were not before the trial court in the instant case. (People v. Preslie
(1977) 70 Cal.App.3d 486, 493 [denying judicial notice of documents not presented to
the trial court].) However, J.W. relies upon the minute orders in making her argument
to this court. For example, J.W. argues, “Watchtower is a repeat offender who has
consistently flouted court orders to produce documents regarding its knowledge of child
molestation . . . in multiple pending cases besides this case.” Because the minute orders
are relevant to J.W.’s argument, we conclude they have some relevance.
DISPOSITION
The judgment is affirmed. Respondent is awarded her costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1).)
CERTIFIED FOR PUBLICATION
MILLER J.
We concur:
McKINSTER Acting P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in imposing terminating sanctions, including striking the defendant's answer and entering a default judgment, after the defendant willfully refused to comply with multiple discovery orders.
Issues
Whether the trial court erred in imposing terminating sanctions for discovery noncompliance.
Whether the defendant's due process rights were violated by the terminating sanctions.
Whether the trial court erred in denying the defendant's motion for relief from terminating sanctions.
Disposition. affirmed
Quotations verified verbatim against the opinion
“The trial court granted the motion for terminating sanctions and struck Watchtower’s answer.”
“The trial court clerk entered Watchtower’s default.”