Stansfield v. STARKEY, 220 Cal.App.3d 59 (some CST fun)
ptsc
lawyers as well as Turner, Gerstenfeld, Wilk & Tigerman (huh?). And
the "et al" includes the Church of Spiritual Technology.
Too bad this case went nowhere after its FIFTH amended complaint.
Our buddy RICO Suave shows up too.
Stansfield v. Starkey, 220 Cal.App.3d 59
[No. B037375. Court of Appeals of California, Second Appellate District,
Division Seven. May 9, 1990.]
MANFRED STANSFIELD et al., Plaintiffs and Appellants, v. NORMAN STARKEY et al.,
Defendants and Respondents
(Superior Court of Los Angeles County, No. CA01012, Norman R. Dowds and Barnet
M. Cooperman, Judges.)
(Opinion by Woods (Fred), J., with Lillie, P. J., and Johnson, J., concurring.)
COUNSEL
Lawrence Levy, Lyle Francis Middleton and Robert A. Brown for Plaintiffs and
Appellants.
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, Eric M. Lieberman, Terry
Gross, Bowles & Moxon, Kendrick L. Moxon, Turner, Gerstenfeld, Wilk & Tigerman,
Lawrence E. Heller and William Drescher for Defendants and Respondents.
OPINION
WOODS (Fred), J.
The trial court sustained without leave to amend demurrers to appellants' fifth
amended complaint and dismissed actions against respondents Author Services,
Inc., and Church of Spiritual Technology. We find no abuse of trial court
discretion and therefore affirm the judgment.
Procedural Background
On December 31, 1986, appellants (six individuals, one nonprofit organization,
and a present class of approximately four hundred persons who [220 Cal.App.3d
64] could number several thousand) filed their original complaint. Named as
defendants were fourteen individuals, one estate, six nonprofit organizations,
one for profit corporation, one nonprofit religious corporation, five
undesignated entities, and one hundred Does. Three causes of action were
alleged: (1) fraud, (2) breach of a fiduciary relationship or duty, and (3)
injunctive relief and constructive trust.
The complaint alleged that appellants were or had been members of the Church of
Scientology, that they had been induced to join the church by defendants'
misrepresentations, that defendants had breached a fiduciary duty by disclosing
confidential confessional information, and that defendants had diverted church
property to themselves.
A demurrer to the complaint was filed by defendant Sherman D. Lenske, the only
defendant then served.
On March 18, 1987, the scheduled date for the demurrer hearing, appellants
stated, "We'll accept the tentative ruling." In pertinent part, the ruling of
the court (Judge Dowds) provided: "Demurrer sustained to each cause of action
per CCP § 430.10(e) and (f)fn. [1] on the grounds set forth in the moving
papers. In particular, plaintiff must comply with [¶] 103(d) of the Law
Department Manual,fn. [2] fraud must be specifically pleaded (who said what to
whom and when and where) and the circumstances of discovery of the fraud must be
pleaded (when, by whom, where and how). If discovery was more than 3 years
before the filing of the complaint, facts must be pleaded showing why it wasn't
discovered earlier. 30 days to amend. 30 days to respond."
Respondents, Author Services, Inc. (ASI), and Church of Spiritual Technology
(CST), the only other served defendants, were given 20 days, after the filing of
the amended complaint, to respond.
On April 17, 1987, appellants filed their second pleading, the first amended
complaint. It alleged five causes of action: (1) fraud, (2) breach of fiduciary
duty and/or relationship(s), (3) invasion of privacy, (4) intentional [220
Cal.App.3d 65] infliction of emotional distress, and (5) injunctive relief and
constructive trust.
The fraud cause of action was again based upon alleged misrepresentations which
induced appellants to join the Church of Scientology. The other four causes of
action arose from alleged disclosures of confidential confessional
communications.
Respondents (ASI and CST) and defendant Sherman D. Lenske demurred.
The court (Judge Dowds) sustained the demurrers to all five causes of action and
detailed the deficiencies of the first amended complaint in a lengthy order.fn.
3 Defendant Lenske's motion for sanctions (Code Civ. Proc., [220 Cal.App.3d 66]
§ 128.5)fn. 4 against appellants was granted. Appellants were given 30 days to
file an amended complaint.
In their third pleading, the second amended complaint,fn. 5 appellants realleged
the previous five causes of action and added a sixth, conspiracy. Respondents
and defendant Sherman D. Lenske demurred.
The court (Judge Dowds) sustained without leave to amend respondents'fn. 6
demurrers to the fraud and conspiracy causes of action and sustained with leave
to amend the demurrers to the other causes of action.fn. 7 Again the court
detailed the pleading deficiencies in elaborate detail.fn. 8 [220 Cal.App.3d 67]
In their fourth pleading, the third amended complaint, appellants added two new
causes of action, establishment of resulting trust and unfair advantage in
confidential relationship, split injunctive relief and constructive trust into
separate causes of action, realleged causes of action for breach of confidential
relationship, invasion of privacy, and intentional infliction of emotional
distress, and increased the number of Does from 100 to 5,000. As with their
successive complaints appellants served only two defendants, respondents, ASI
and CST.
Respondents demurred and ASI also made a motion to strike.
On December 7, 1987, the court (Judge Dowds) sustained without leave to amend
the demurrers to three causes of action: establishment of resulting trust,
imposition of constructive trust, and unfair advantage in confidential
relationship.fn. 9 The court sustained with leave to amendfn. 10 the demurrers
to the other four causes of action. In its lengthy order the court specified
pleading deficiencies, made distinctions between appellants, and imposed
sanctions on appellants.fn. 11 [220 Cal.App.3d 68]
In their fifth pleading, the fourth amended complaint, appellants alleged four
causes of action: (1) breach of confidential relationship, (2) invasion of
privacy, (3) intentional infliction of emotional distress and, (4) injunctive
relief. Respondents both demurred and made motions to strike.
The court (Judge Cooperman), in a four-page order,fn. 12 partly granted the
motions to strike, sustained the demurrers to the first three causes of action
[220 Cal.App.3d 69] (the fourth, injunctive relief, being a remedy not a cause
of action), denied sanctions, and admonished appellants "that this is the last
opportunity that will be extended to amend the complaint in the manner required
herein and in the prior orders rendered by Judge Dowds." Appellants were given
30 days to amend.
On April 8, 1988, appellants filed their sixth and final pleading, the fifth
amended complaint. Although given leave to do so, appellants did not reallege a
cause of action for either invasion of privacy or intentional infliction of
emotional distress. Appellants did, however, reallege a breach of confidential
relationship cause of action and also sought injunctive and [220 Cal.App.3d 70]
constructive trust relief. And appellants alleged a new cause of action for
racketeering prohibited by the Racketeer Influenced and Corrupt Organizations
Act (RICO)(18 U.S.C. § 1961 et seq.).
By its order of July 20, 1988,fn. 13 the court (Judge Cooperman) sustained
without leave to amend the demurrers of respondents. Thereafter the court signed
orders of dismissal and appellants appealed. [220 Cal.App.3d 71]
Discussion
A. Standard of review
[1] "In reviewing the sufficiency of a complaint against a general [220
Cal.App.3d 72] demurrer, we are guided by long-settled rules. 'We treat the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law. We also consider matters which may be
judicially noticed.' [Citation.] Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.
[Citation.] When a demurrer is sustained, we determine whether the complaint
states facts sufficient to constitute a cause of action. [Citation.] And when it
is sustained without leave to amend, we decide whether there is a reasonable
possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has been no abuse
of discretion and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d
311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)
It is the correctness of the trial court's action in sustaining a demurrer, not
its reasons, which is reviewable. (Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662,
670 [247 Cal.Rptr. 304].) The burden is upon appellant to demonstrate that the
action of the trial court was an abuse of discretion. (Goodman v. Kennedy (1976)
18 Cal.3d 335, 349 [134 Cal.Rptr. 375, 556 P.2d 737].)
B. Scope of review
[2] Our review encompasses not merely appellants' last pleading and the court's
order sustaining without leave to amend the demurrers to that pleading but also
certain other pleadings and orders. "Although ordinarily an appellate court will
not consider the allegations of a superseded complaint (see Foreman & Clark v.
Fallon (1971) 3 Cal.3d 875, 884 [92 Cal.Rptr. 162, 479 P.2d 362]), that rule
does not apply when the trial court denied plaintiffs leave to include those
allegations in an amended complaint." (Committee on Children's Television, Inc.
v. General Foods Corp. (1983) 35 Cal.3d 197, 209 [197 Cal.Rptr. 783, 673 P.2d
660].)
C. Fraud
[3a] Appellants alleged a fraud cause of action in each of their first three
pleadings. Demurrers to the first and second fraud pleadings were sustained with
leave to amend. But the demurrers to the third fraud pleading were sustained
without leave to amend. We therefore consider whether or not this sustainment
order was within the court's discretion.
[4] The elements of fraud or deceit (see Civ. Code, §§ 1709, 1710) are: a
representation, usually of fact, which is false, knowledge of its falsity,
intent to defraud, justifiable reliance upon the misrepresentation, and damage
[220 Cal.App.3d 73] resulting from that justifiable reliance. (Roberts v. Ball,
Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109 [128 Cal.Rptr. 901];
5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778.)
[5] "Every element of the cause of action for fraud must be alleged in the
proper manner and the facts constituting the fraud must be alleged with
sufficient specificity to allow defendant to understand fully the nature of the
charge made." (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz, supra, 57
Cal.App.3d at p. 109.)
But the rationale for this "'strict requirement[] of pleading'" ( Committee on
Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d 197, 216)
is not merely notice to the defendant. "'The idea seems to be that allegations
of fraud involve a serious attack on character, and fairness to the defendant
demands that he should receive the fullest possible details of the charge in
order to prepare his defense.'" (Ibid.) Thus "'the policy of liberal
construction of the pleadings ... will not ordinarily be invoked to sustain a
pleading defective in any material respect.'" (Ibid.)
This particularity requirement necessitates pleading facts which "show how,
when, where, to whom, and by what means the representations were tendered."
(Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 707 [72 Cal.Rptr.
441].)
[6] Before turning to appellants' fraud allegations we observe that some
misrepresentations, just as some threats, are "protected religious speech and
cannot provide the basis for tort liability." (Molko v. Holy Spirit Assn. (1988)
46 Cal.3d 1092, 1123-1124 [252 Cal.Rptr. 122, 762 P.2d 46].) E.g., the threat
that if one left the church one's relatives "'would be damned in Hell forever'"
( id. at p. 1123) implicates religious beliefs and is not justiciable. But as we
recently explained in Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d
872 [260 Cal.Rptr. 331], actions, although based upon religious beliefs, may be
tortious. ( Id. at p. 884.)
[3b] Appellants alleged (in paragraph 31 of the second amended complaint) the
following misrepresentations: the Church of Scientology was tax exempt; it had a
charitable nature; its founder, L. Ron Hubbard, received no funds paid by
members; L. Ron Hubbard received low level compensation for his work; L. Ron
Hubbard was a nuclear physicist, highly decorated war veteran who had been
wounded during four years of combat; L. Ron Hubbard was twice pronounced
medically dead but cured himself with dianetics; and L. Ron Hubbard, by applying
the principles of dianetics and scientology, was in perfect health. Appellants
also alleged justifiable reliance. As to the "how, when, where, to whom, and by
what means the [220 Cal.App.3d 74] representations were tendered" (Hills Trans.
Co. v. Southwest, supra, 266 Cal.App.3d at p. 707) the following allegation is
representative.
"Valerie Stansfield, a member from 1961 to 1983, paid in excess of $10,000 to
the church and labored for said church in excess of ten (10) years. The
representations made in paragraph 31 above were made to Valerie Stansfield by a
staff member of the church - Harold Deford. The representations were also made
in tapes of L. Ron Hubbard and certain publications of Scientology. These
representations were made in 1961 in Washington, DC."
It was alleged that each named appellant upon hearing or reading the
representations joined the church. Some joined as early as 1957, some as late as
1974. They also left at different times. Some in 1982, some in 1983, some in
1984.
The trial court found these allegations inadequate. We conclude it was within
its discretion to so find.
As the trial court noted (see fn. 8) appellants did not allege "who acted as the
agent of what principal." In appellant Valerie Stansfield's circumstance it was
alleged that in 1961 a Harold Deford made the misrepresentations. But it was not
alleged that Harold Deford, in 1961, was an agent of either respondent ASI or
CST, nor even that ASI or CST had a corporate existence in 1961.
Appellants' alter ego and cross-agency allegations ("defendants and each of
them, are the agents and employees of each other") are inconsistent with other
allegations (such as "L. Ron Hubbard and defendants Norman Starkey ... are or
have been principal officers and/or controllers of all of the defendant
corporations" and "David Miscavige, defendant, currently controls and totally
dominates all Church of Scientology monies, assets and property throughout the
world") and fail to include facts showing a unity of interest and a resultant
injustice, prerequisites to an alter ego theory. (See First Western Bank & Trust
Co. v. Bookasta (1968) 267 Cal.App.2d 910, 914-915 [73 Cal.Rptr. 657]; Clejan v.
Reisman (1970) 5 Cal.App.3d 224, 238-239 [84 Cal.Rptr. 897]; Rader v. Apple
Valley Bldg. & Dev. Co. (1968) 261 Cal.App.2d 308, 314 [68 Cal.Rptr. 108].)
It also was not clearly alleged that each representation was false when made.
E.g., the complaint alleges that all representations were made to each of the
six named appellants. But the complaint does not allege that the tax exempt
representation was false in each of the six years (1957, 1961, 1962, 1965, 1968,
and 1974) individual appellants relied upon it to join the church.
Similarly vague was the alleged causal connection between the misrepresentations
and the harm to appellants. Appellants did not allege, e.g., that [220
Cal.App.3d 75] in reliance upon the tax exempt representation they claimed and
had been denied charitable tax deductions. Nor did appellants allege a
representation they would be compensated for their labor.
Less than explicit and material were the allegations of inducement, viz., that
appellants joined a church because it was tax exempt, its founder underpaid and
a wounded war hero. Conversely, the representation that L. Ron Hubbard twice
rose from the dead appears to implicate religious beliefs and thus is not
justiciable. ( Molko v. Holy Spirit Assn., supra, 46 Cal.3d 1092.)
Additionally, allegations purporting to explain delayed discovery of the falsity
of the representations were cloudy and inconsistent. Although it was alleged
that the representations were made as early as 1957 it was not until 1987 that
appellants allegedly discovered their falsity. Yet it was simultaneously
alleged, without explanation, that appellants left the church in 1982, 1983, and
1984 and that much of the true information was in the public domain by July
1984.
Equally general and imprecise was the allegation of intent to defraud.
Appellants alleged that respondents (and all defendants) acted "with the intent
to deceive the plaintiffs and cause them to form an alliance with the defendant
'church.' The extent and degree of the fraudulent misrepresentations varied
depending upon the immediate goal of these defendants."
The trial court, in sustaining the demurrers without leave to amend, acted
within its discretion. (Cf. Peter W. v. San Francisco Unified Sch. Dist. (1976)
60 Cal.App.3d 814, 827 [131 Cal.Rptr. 854]; Norkin v. United States Fire Ins.
Co. (1965) 237 Cal.App.2d 435, 437-438 [47 Cal.Rptr. 15]; Vaughn v. Certified
Life Ins. Co. (1965) 238 Cal.App.2d 177, 181-182 [47 Cal.Rptr. 619]; Lesperance
v. North American Aviation, Inc. (1963) 217 Cal.App.2d 336, 344-345 [31
Cal.Rptr. 873].)
D. Conspiracy
[7] Appellants alleged a conspiracy cause of action in their second amended
complaint. It consisted of an incorporation of all the fraud allegations, a
further allegation of a 1979 conspiracy to divert church funds, and an averment
of proximate harm in an "unascertained sum."
The trial court was correct in sustaining the demurrers without leave to amend,
for at least three reasons.
First, this cause of action by incorporating all the fraud allegations also
incorporated all their defects. [220 Cal.App.3d 76]
Second, "[a] conspiracy cannot be alleged as a tort separate from the underlying
wrong it is organized to achieve." (McMartin v. Children's Institute
International (1989) 212 Cal.App.3d 1393, 1406 [261 Cal.Rptr. 437].) I.e., an
agreement, however wrongful, is not itself a tort. It requires acts in
furtherance to become one. And no such acts were alleged.
Third, the allegations of this cause of action expressly omitted respondents.
Appellants alleged that "During 1979, defendants, John Peterson, David
Miscavige, L. Ron Hubbard, Sherman Lenske and Does I through 100, knowingly and
wilfully conspired and agreed among themselves ...."
E. Resulting trust and constructive trust
[8] In their third amended complaint appellants alleged, as causes of action, a
resulting trust and a constructive trust. But neither is a cause of action (5
Witkin, Cal. Procedure (3d ed. 1985) Pleading, §§ 788-791, pp. 232-235), only a
remedy. Moreover, "[a] resulting trust arises to enforce the inferred intent of
the parties" (Dabny v. Philleo (1951) 38 Cal.2d 60, 68 [237 P.2d 648]) and no
such common intent was alleged. Additionally, specific identifiable property is
a prerequisite for either type of trust and none was alleged.
The trial court acted within its discretion in sustaining the demurrers without
leave to amend.
F. Invasion of privacy and intentional infliction of emotional distress
[9] In their fourth amended complaint appellants alleged causes of action for
invasion of privacy and intentional infliction of emotional distress. The trial
court (Judge Cooperman) sustained demurrers to these causes of action but
afforded appellants leave to amend. (See fn. 12.) Appellants did amend their
complaint and filed a superseding fifth amended complaint which omitted these
two causes of action. Under such circumstances "an appellate court will not
consider the allegations of a superseded complaint." ( Committee on Children's
Television, Inc. v. General Foods Corp., supra, 35 Cal.3d 197, 209; Foreman &
Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884 [92 Cal.Rptr. 162, 479 P.2d 362]
["'Such amended pleading supplants all prior complaints. It alone will be
considered by the reviewing court.'"]; Alhambra Transfer etc. Co. v. Muse (1940)
41 Cal.App.2d 92, 93 [106 P.2d 63] ["... by amending his complaint after
demurrer was sustained plaintiff waived error, if any, in the ruling of the
court."].)
Error, if any, was waived by appellants when they filed their superseding fifth
amended complaint which omitted both of these causes of action. [220 Cal.App.3d
77] G. Breach of confidential relationship, breach of fiduciary duty, taking
unfair advantage of a confidential relationship
[10] Appellants variously labelled a cause of action whose elements are: a
confidential relationship, a communication made in confidence, disclosure, and
injury. (See Younan v. Equifax (1980) 111 Cal.App.3d 498 [169 Cal.Rptr. 478].)
As observed by the trial court (Judge Cooperman), appellants, despite repeated
and explicit admonishments, "failed to identify the alleged communicators of
confidential information and to identify the third parties who received such
communication." (See fn. 13.)
But more fundamental and fatal was appellants' failure to allege disclosure of a
confidential communication. Alleged instead, as noted by the trial court, was
disclosure of "apparently false information," information not communicated by
appellants, in confidence or otherwise.
Thus, the trial court correctly sustained the demurrers without leave to amend.
H. RICO
[11a] In their sixth pleading, the fifth amended complaint, appellants alleged a
cause of action based upon the Racketeer Influenced and Corrupt Organizations
Act (RICO)(18 U.S.C. §§ 1961-1968).
[12] Although "RICO is primarily a criminal statute" (Johnsen v. Rogers
(C.D.Cal. 1982) 551 F.Supp. 281, 284) whose purpose is "to seek the eradication
of organized crime" (18 U.S.C. § 1961, note "statement of findings and
purpose"), it also prescribes civil remedies (18 U.S.C. § 1964) which are
available in California state courts. (Cianci v. Superior Court (1985) 40 Cal.3d
903 [221 Cal.Rptr. 575, 710 P.2d 375].)
To plead a civil RICO cause of action a plaintiff must allege: (1) conduct (2)
of an enterprise (3) through a pattern (4) of racketeering activity (5) which
injured his business or property. (Sedima, S.P.R.L. v. Imrex Co. (1985) 473 U.S.
479, 496-497 [87 L.Ed.2d 346, 358-359, 105 S.Ct. 3275]; McMartin v. Children's
Institute International, supra, 212 Cal.App.3d 1393, 1406; 18 U.S.C. § 1964
(c).)
[11b] As the trial court noted (See fn. 13), general damages ("emotional and
mental distress, anguish, shock, nervousness, pain and suffering") are not
recoverable under RICO. (Zimmerman v. HBO Affiliate Group (3d Cir. 1987) 834
F.2d 1163, 1169.) Actual damages, trebled, to "business or property" are
recoverable. (18 U.S.C. § 1964 (c).)
The predicate principally relied upon by appellants in alleging their RICO cause
of action is extortion. Extortion is included within the [220 Cal.App.3d 78]
definition of "racketeering activity" (18 U.S.C. § 1961 (1)), and "racketeering
activity" is prohibited by 18 U.S.C. § 1962. As defined by 18 United States Code
section 1951 (b)(2) extortion means "the obtaining of property from another,
with his consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right." Penal Code section 518
provides essentially the same definition.fn. 14
Appellants have failed to allege facts satisfying the definition of extortion.
No facts have been alleged that respondents "obtained" property by actual or
threatened force. Instead what appellants alleged were, at most, instances of
defamation communicated after appellants had left the church. (See fn. 13.)
There is no allegation that the defamers made an extortionate demand for money
or property, or that appellants parted with any money or property as a result of
these defamations.
Other RICO pleading defects, less fundamental, were detailed by the trial court.
(See fn. 13.)
We conclude that the order sustaining the demurrer without leave to amend was
within the trial court's discretion.
The judgment is affirmed. Costs on appeal are awarded to respondents.
Lillie, P. J., and Johnson, J., concurred.
FN [1]. "The party against whom a complaint ... has been filed may object, by
demurrer ... as provided in Section 430.30, to the pleading on any one or more
of the following grounds: ... (e) The pleading does not state facts sufficient
to constitute a cause of action. (f) The pleading is uncertain. As used in this
subdivision, 'uncertain' includes ambiguous and unintelligible."
FN [2]. "(d) (Identifying Parties and Causes of Action) Each cause of action
should be identified as to (1) its nature (fraud, breach of contract, etc.), (2)
the particular plaintiffs asserting it, and (3) the particular defendants
against whom it is asserted. For example: Cause of Action for Infliction of
Emotional Distress Brought by Plaintiff Jane Black Against Defendants Jones,
Smith, Brown and Does 2 and XI."
FN 3. The order reads: "In this matter heretofore argued and submitted, the
Court now rules as follows: Each demurrer is sustained to all causes of action
of the first amended complaint pursuant to Code of Civil Procedure Section
430.10(f). Each cause of action is uncertain in that it does not state who
performed the actions for which the various defendants are apparently proposed
to be held liable under the doctrine of Respondiat [sic] Superior and what acts
were performed by each such person and at what time. In oral argument it was
asserted by counsel for the plaintiffs that the name of the Church corporation
with which the individual plaintiffs were associated changed from time to time,
from which it may be inferred that the principal of the agents who performed the
acts in question assertedly changed from time to time. At the very least, each
defendant is entitled to know the names of the person [sic] for whom [sic] acts
the particular defendant is proposed to be held liable and what acts were
performed by which asserted agent and when. Also the complaint is uncertain as
to which plaintiff had a fiduciary relationship with which defendant and during
what period of time and what facts gave rise to the fiduciary relationship.
"The demurrer of each demurring party is also sustained pursuant to Section
430.10(e) as to the first and second causes of action. As to both causes of
action, the demurrer is sustained on the ground of the statute of limitations.
It appears from the face of the complaint that the acts complained of occurred
beyond the normal period of the statute of limitations. If it is asserted that
the fraud and violation of fiduciary relationship was [sic] not discovered until
some later time, it is necessary to plead when the facts were discovered and
sufficient facts from which it would appear that the plaintiffs should not with
reasonable diligence have ascertained the alleged misconduct at an earlier date.
Also as to the first cause of action, fraud is not pleaded with sufficient
particularity. As pointed out in respect of Mr. Lenske's demurrer in respect of
the original complaint, it must be alleged what act was performed by what person
and when and where, i.e., who said what to whom and when and where. It is
recognized that in a class action it is not necessary to plead specifically the
acts giving rise to the cause of action with respect to each unnamed member of
the plaintiff class, but such particular allegations must certainly be made as
to the named plaintiffs. The court does not reach any other pending demurrers
and they are ordered off calendar. 30 days to amend. 30 days to respond.
"The motion of defendant Sherman D. Lenske for sanctions under Code of Civil
Procedure Section 128.5 is granted. The court finds that the action of the
plaintiffs in filing the first amended complaint without coming close to
complying with the directions of the court given upon the sustaining of Mr.
Lenske's demurrer to the original complaint was action taken in bad faith and
was frivolous. Plaintiffs are ordered to pay to Mr. Lenske $350.00 within 10
days as the reasonable expenses incurred by moving party as the result of such
action."
FN 4. Unless otherwise noted all statutory references are to the Code of Civil
Procedure.
FN 5. Mislabeled "first amended complaint."
FN 6. The demurrer of defendant Sherman D. Lenske was not ruled upon because
the court had earlier dismissed the action as to him. The dismissal resulted
from appellants' violation of discovery orders. Appellants did not, apparently,
seek review of this dismissal and Mr. Lenske is not a party to this appeal.
FN 7. The court's order omitted reference to the injunction and constructive
trust cause of action.
FN 8. The order reads: "Demurrer having been argued and submitted, the court
now rules as follows: The demurrers of defendants Church of Spiritual Technology
and Author Services Inc. to the Second Amended Complaint (erroneously captioned
as 'First Amended Complaint' since a First Amended Complaint had been previously
filed) is sustained pursuant to C.C.P. Section 430.10(e) without leave to amend
as to the First and Second Causes of Action.
"The injury complained of in these causes of action is that, as a result of
false representations, the plaintiffs were induced to join a church and to
contribute their money and time and efforts to the church over long periods of
time. Resolution of this controversy would require the court to determine
whether it was an advantage or a detriment to a plaintiff to be a member of a
particular church over a considerable period of time. This is not a judiciable
[sic] controversy. Further, after three attempts and specific directions by the
court, the fraud asserted to have been practiced by these particular defendants
is still not specifically alleged and the court must conclude that there are no
facts constituting fraud by them that can be truthfully alleged. There is an
absence of pleadings as to what agents of these defendants made the alleged
representations to each of the named plaintiffs, and when and where they were
made. In particular, it [is] not alleged who acted as the agent of what
principal.
"Further, to the extent the complaint alleges a conspiracy to divert funds from
the church to an individual, the cause of action would lie in the church
corporation, although under appropriate circumstances a derivative action could
be brought on behalf of the corporation, if it did not itself act.
"The demurrer is sustained as to the Third, Fourth and Fifth Causes of Action
pursuant to C.C.P. section 430.10(e) with thirty (30) days to amend and thirty
(30) days to respond. These causes of action possibly relate to an actual or
threatened disclosure of information given by a plaintiff to the church during a
confessional session. It is not clearly alleged that any such material was
actually disclosed in respect of any named plaintiffs. If this is the
allegation, it must be clearly alleged and at least the nature of the material
disclosed and the person or persons to whom it was disclosed must be alleged,
together with facts showing that there is a threat of repetition insofar as
injunctive relief is requested. If it is asserted that the threat of disclosure
constituted outrageous conduct giving rise to emotional distress, additional
facts must be pled the nature of the material material [sic] threatened to be
disclosed from which it could be ascertained that the conduct as alleged was
outrageous. As to these causes of action, there must be an allegation as to what
person or persons acted as the agent of each of these demurring defendants in
performing the acts complained of."
FN 9. ASI's motion to strike these causes of action was also granted.
FN 10. An amended minute order gave appellants 20 days to amend the complaint.
FN 11. The order reads: "In these matters heretofore argued and submitted, the
court now rules as follows: [¶] Motion of Author Services, Inc. to strike the
first, second and third causes of action of the Third Amended Complaint is
granted. These causes of action (though captioned in terms of the relief
requested instead of the wrongful conduct complained of) are in substance the
same as the fraud causes of action previously filed, as to which the court
sustained demurrers without leave to amend. Balance of motion to strike (except
as to sanctions) denied.
"Demmurrers of defendants Author Services, Inc. and Church of Spiritual
Technology to first, second and third causes of actions sustained per CCP§
430.10(e) without leave to amend. The gravamen of these causes of action is that
the members of the Church of Scientology were induced to join that church and
contribute money and services to it over long periods of time by reasons of
misrepresentations about the Church and its founder. To adjudicate this
controversy the court would have to determine whether it was an advantage or
detriment to plaintiffs to be a member of this particular church. This is not a
justicable [sic] controversy. In addition, taken in context and as a whole, the
alleged representations relate to religious assertions and beliefs into which
courts may not inquire. Further, in four attempts, the plaintiffs have not
alleged the fraud with the specificity which the law requires.
"The demurrers of the moving parties to causes of actions 4, 5, 6 and 7 of all
plaintiffs other than Valerie Stansfield and Jerry Whitfield are sustained per
CCP§ 430.10(e). There is no factual allegation of breach of confidential
relationship, invasion of privacy, outrageous conduct or the threat of the same
as to these plaintiffs. Paragraphs 7, 8, and 9 do not allege that the same
things happened to other plaintiffs that happened to Valerie Stansfield and
Jerry Whitfield.
"The demurrers of the demurring defendants are sustained per CCP§ 430.10(e) as
to causes of action 5 and 6 in respect of Valerie Stansfield and Jerry
Whitfield. There are no factual allegations of invasion of privacy or outrageous
conduct (paragraph 77 is not incorporated).
"The demurrers of the moving parties are sustained per CCP§ 430.10(f) as to
causes of action 4, 5, 6, and 7. These causes of action are uncertain as to when
the acts complained of occurred. This uncertainty is particularly acute because
of the allegations that certain conduct complained of became public knowledge in
July of 1984.
"Any other demurrers are ordered off calendar.
"Plaintiffs are order[ed] to pay $750.00 to each of the moving defendants
pursuant to CCP§ 128.5 as the reasonable expenses they incurred by reason of
plaintiffs' bad faith actions and conduct in re-pleading causes of action as to
which demurrers had previously been sustained without leave to amend. This is
frivolous conduct as defined in that statute."
FN 12. The order reads: "In these matters, heretofore argued and submitted, on
March 2, 1988, the Court now rules as follows. [¶] The motions of defendants
Author Services, Inc., and of defendant Church of Spiritual Technology to strike
the Fourth Amended Complaint are granted as to the following allegations, by
reason of the fact that said allegations pertain to causes of action previously
removed by the Court, on order of Judge Dowds.
"Page 6, line 14, beginning with the new sentence, to line 22, inclusive;
"Page 7, line 1, beginning with the new sentence, to line 4, inclusive;
"Page 7, line 14, beginning with the new sentence, to line 17, inclusive;
"Page 7, line 25, beginning the new sentence, to line 26, inclusive;
"Page 8, paragraph 16;
"Page 8, line 23, beginning with the new sentence, to line 27, ending wit[h] the
word 'assets';
"Page 9, paragraphs 21 and 22;
"Page 10, paragraph 25;
"Page 10, paragraph 27 (continues onto page 11);
"Page 11, paragraph 30 (continues onto page 12);
"Page 12, paragraphs 31 and 22;
"Page 13, paragraphs 33, 34, 35 and 36 (continues onto page 14);
"Page 14, paragraphs 37, 38, 39 and 40 (continues onto page 15);
"Page 15, paragraphs 41, 42 and 43 (continues onto page 16);
"Page 16, paragraphs 44 and 45 (continues onto page 17);
"Page 17, paragraphs 46 and 47 (continues onto page 18);
"Page 18, paragraphs 48 and 49 (continues onto page 19);
"Page 19, paragraphs 50 and 51 (continues onto page 20);
"Page 20, paragraphs 52 and 53 (continues onto page 21);
"Page 21, paragraphs 54 and 55 (so far as paragraph 55 re-alleges material
hereinabove ordered stricken);
"Page 23, paragraph 64 (incomplete in present form);
"Page 25, paragraph 69, beginning with the last word on line 24, to line 27,
inclusive);
"Page 26, paragraphs 72 and 73;
"Page 27, paragraph 74 (so far as it re-alleges material hereinabove ordered
stricken), and paragraphs 75 and 76;
"Page 28, paragraph 77 (so far as it re-alleges matter hereinabove ordered
stricken);
"Page 30, paragraph 83;
"Page 31, paragraph 84 (so far as it re-alleges matter hereinabove ordered
stricken);
"Page 32, paragraph 89 from line 8 to line 17, up to and including the end of
the sentence on line 17;
"Page 33, paragraph 1.b and paragraph 2.b (continues onto page 34.)
"The Court has ordered stricken paragraph 73 of the Fourth Amended Complaint in
that the allegations pertaining to punitive or exemplary damages are not in
compliance with Civil Code section 3294, [*] as effective January 1, 1988. In
addition, said paragraph in setting forth the amount of punitive damages, does
not comply with Code of Civil Procedure section 426.10(b). [sic] [See **]
"Similarly, paragraph 83 of the Fourth Amended Complaint is ordered stricken for
noncompliance with Civil Code section 3294 and with Code of Civil Procedure
section 425.10. [**]
"Paragraph 1.b of the prayer for relief, pertaining to punitive damages is
stricken for noncompliance with Code of Civil Procedure section 425.10(b). [See
** ]
"The demurrers of the moving parties to the First, Second and Third causes of
action as to plaintiffs other than Valerie Stansfield and Jerry Whitfield are
sustained per C.C.P. section 430.10(e). There is no factual allegation of breach
of confidential relationship, invasion of privacy, outrageous conduct or the
threat of same, as to the remaining named plaintiffs, as was indicated by Judge
Dowds in the minute order of December 7, 1987. In this connection, this Court
notes that paragraph 64, (save and except for lines 1 through 5, on page 24) is
incomplete.
"The demurrers of the moving parties to the First, Second and Third causes of
action are sustained per Code of Civil Procedure section 430.10(f). These causes
of action are uncertain as to the identity of the alleged agent or agents of
defendants who allegedly wrongfully communicated plaintiffs' confidential
information to third parties and as to the identity of the third parties to whom
such alleged communications were made. The prior rulings of Judge Dowds have
required such information to be pleaded with respect to the named plaintiffs.
"Counsel for plaintiffs has stated to the Court that such specific pleading is
not required by law, and has cited Newberg on Class Actions, section 6.13, and
Donson Stores, Inc. v. American Bakeries Company, (1973) 58 F.R.D. 485, and
Abramovitz v. Ahern (1982) 96 F.R.D. 208, 211, in support of his position. This
Court has read the foregoing authorities and has determined that they do not
support plaintiffs' position, as expressed to the Court.
"Other demurrers and motions to strike are ordered off calendar. Counsel for
plaintiff shall have 30 (thirty) days to amend, and the moving defendants shall
have 30 (thirty) days to respond. Counsel for plaintiffs is admonished that this
is the last opportunity that will be extended to amend the complaint in the
manner required herein and in the prior orders rendered by Judge Dowds.
"The moving parties' request for monetary sanctions is at this time denied, in
light of the admonition hereinabove set forth."
*Civil Code section 3294, subdivision (a) provides: "In an action for the breach
of an obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover damages
for the sake of example and by way of punishing the defendant."
**Section 425.10 reads: "A complaint or cross-complaint shall contain both of
the following: [¶] (a) A statement of the facts constituting the cause of
action, in ordinary and concise language. [¶] (b) A demand for judgment for the
relief to which the pleader claims he is entitled. If the recovery of money or
damages be demanded, the amount thereof shall be stated, unless the action is
brought in the superior court to recover actual or punitive damages for personal
injury or wrongful death, in which case the amount thereof shall not be stated."
FN 13. The order reads: "Demurrers to Fifth Amended Complaint are sustained, as
to demurring defendants, without leave to amend.
"The demurrers as to the First cause of action, seeking relief under RICO, (18
U.S.C. § 1961, et seq.) are sustained under CCP 430.10(e). To the extent that
plaintiffs seek relief pertaining to personal injury, loss of reputation, pain
and suffering, or emotional distress, (see Complaint, paragraph 42) RICO
provides no remedy. (See 18 U.S.C. § 1964(c)); Johnsen v. Rogers (1982) 551
F.Supp. 281).
"No facts have been alleged by plaintiffs with respect to alleged laundering of
monetary instruments by defendants, as a pattern of racketeering activity under
18 U.S.C. § 1956. (See paragraph 37 of Complaint).
"Plaintiffs have also failed to plead facts pertaining to any alleged violation
on the part of the demurring defendants with respect to the Currency and Foreign
Transactions Reporting Act (31 U.S.C. § 5316(a). (Complaint, paragraph 39.)
"Under 18 U.S.C. § 1951(b)(2), '[t]he term "extortion" means the obtaining of
property from another, with his consent, induced by wrongful use of actual or
threatened force, violence or fear, or under color of official right.'
"Although 'extortion' is referred to in paragraph 35. of the Fifth Amended
Complaint, and in subparagraph 35. (ii), (iii), (iv), (xii), (xiv), and (xvi),
no facts are alleged therein which conform with the legal definition of the term
'extortion', above quoted. For example, in paragraph 35. subparagraphs (ii) and
(iii) it is alleged that plaintiffs Manfred and Valerie Stansfield, and Jerry
and Hana Whitfield, respectively, had extortion practiced against them by
defendants because said named plaintiffs refused, in 1986, to pay, in cash or in
kind, for defendants' products and services. Plaintiffs allege that certain
confessional information concerning Valerie Stansfield was communicated by one
Dr. Lee to Valerie's mother, and concerning Jerry, was communicated by one Al
Bei to Jerry's father. Lee and Bei are alleged to be agents of defendants.
"However, there is no allegation that the communications by the alleged agents
of defendants were the result of any threat or threats by anyone, or that
property was obtained from the named plaintiffs in connection therewith.
Further, the allegations in paragraph 35. (iv) that defendants declared in
March, 1982 that plaintiff Hana Whitfield was a 'Suppressive' person and that
defendants declared in February, 1983 that plaintiff Franklin Freedman was a
'Suppressive' person do not, in anywise, constitute extortion as hereinabove
defined.
"Paragraph 35. (xvi), in which plaintiffs allege '[d]uring the period 1983
through 1984, defendant's agent, Don Larson extorted in excess of $3,000,000.00
(Three Million Dollars) from plaintiff class members as a direct result of the
extortionate racketeering activity perpetrated against said plaintiffs as
hereinabove alleged' is devoid of facts sufficient to place defendants on
reasonable notice of the charge being made by plaintiffs.
"The allegations of paragraph 41. of the Fifth Amended Complaint, pertaining to
alleged monetary losses suffered by the named plaintiffs and referring to labor
performed by said plaintiffs for defendants, are incomprehensible as pleaded,
and fail to place defendants upon reasonable notice as to the basis of the
alleged claims.
"The demurrers as to plaintiffs' Second cause of action seeking relief for
alleged breach of confidential relationship are sustained under CCP § 430.10(e).
"The gravamen of this cause of action is the alleged unauthorized disclosure by
agents of defendants, to third persons, of confidential information regarding
plaintiffs, secured by defendants in a confessional context, to accomplish
wrongful purposes of defendants, including coercing plaintiffs into silence,
forcing them to pay and support Churchs [sic] of Scientology, and to comply '...
with whatever defendants and their agents and employees demanded in a conscious
disregard of plaintiffs' rights and safety. ...' (See Complaint, paragraph 54.)
"Plaintiffs were advised in the ruling of the court sustaining demurrers to the
Fourth Amended Complaint, rendered on March 8, 1988, that the Complaint was
uncertain '... as to the identity of the alleged agent or agents of defendants
who allegedly wrongfully communicated plaintiffs' confidential information to
third parties and as to the identity of the third parties to whom such alleged
communications were made. The prior rulings of Judge Dowds have required such
information to be pleaded with respect to the named plaintiffs. ...'
"This Court also stated in its minute order of March 8, 1988, that '[c]ounsel
for plaintiffs is admonished that this is the last opportunity that will be
extended to amend the complaint in the manner required herein and in the prior
orders rendered by Judge Dowds.'
"Notwithstanding the foregoing admonition, in paragraph 46. of the Fifth Amended
Complaint, plaintiffs, although alleging disclosure by defendants of alleged
intimate details of the personal lives of plaintiffs, Manfred and Valerie
Stansfield and Jerry and Hana Whitfield, to members of the Church of
Scientology, and to plaintiffs' relatives, families, friends and third parties,
have failed to identify the alleged communicators of confidential information,
and to identify the third parties who received such communication. This
information, and particularly the identity of the recipients of the alleged
wrongful communications, should be clearly known to plaintiffs.
"In paragraph 45. of the Fifth Amended Complaint plaintiffs allege, only in the
most general terms, breach of confidences of plaintiffs by defendants'
disclosure of confidential, confessional material, without any effort to plead
facts, as required by the Court.
"While it is true that in paragraph 35. (ii) and (iii), part of plaintiffs'
First cause of action), which is incorporated by reference in the Second cause
of action, plaintiffs plead the names of Dr. Lee and Al Bei as alleged agents of
defendants, who communicated information about Valerie Stansfield's to Valerie's
mother, and about Jerry Whitfield to Jerry's father, respectively, it does not
appear that the alleged communications were of confidential information, in
conformity with other allegations of the Second cause of action, but instead
consisted of apparently false information concerning said plaintiffs.
"In the Court's judgment, plaintiffs have not complied with the Court's
admonition.
"Although the Court has examined the Complaint in Aznaran, et al., v. Church of
Scientology of Calif., Inc., et al., Case No. CV 88-1786-WDK; the opinion of the
United States Tax Court (83 TC No. 25) Church of Scientology of Calif. v.
Commissioner of Internal Revenue (1987) USCA (9th Cir.) 823 F.2d 1310, judicial
notice is not taken with respect to such records, which were lodged by
plaintiffs, in that they contain no facts relevant to the case at bench."
We have taken judicial notice of this order, part of the superior court file
(Evid. Code, § 452, subd. (d)) ordered to be but not included as part of the
record on appeal, after duly notifying all counsel. (Evid. Code, §§ 455, 459.)
FN 14. "Extortion is the obtaining of property from another, with his consent,
or the obtaining of an official act of a public officer, induced by a wrongful
use of force or fear, or under color of official right."
Copyright © 1995-2000 FindLaw | Copyright © 1993-2000 AccesLaw
ladayla
ptsc <pt...@my-deja.com> wrote:
Tks so much for posting this, ptsc. It sure dredges up some old
memories. I was a member of this Class. We called it FAIR, or Freedom
For All In Religion. I think Mary Marin ( Freedman) came up with the
name. Originally, Michael Flynn was to be FAIR's attorney, but he had
had enough fair gaming, and recommended us to this yoyo, Lawrence Levy
and his partner took over. They were light weights and no way in hell
could stand up to the kind of harrassment that was going on at that
time. This is the first time I have seen this doc. I knew that we
couldn't get the court to accept our suit and I was told that it was
because the charges were too broad.
jana
Sent via Deja.com http://www.deja.com/
Before you buy.
ptsc
I didn't see the original case, but five amdended complaints is a lot. I
imagine they filed a "kitchen sink" type suit and then failed to back it up,
resulting in multiple amended suits. Five is a lot even for a complex suit.
I'd never known it as "Stansfield v. Starkey" but as the "Fair RICO suit"
though it appears the RICO claims were only added later.
ptsc
roger gonnet
system: instead of going to the point, most of the problems go to FORM or
formulation causes.
In no case would something so incredibly unjust happen under french justice,
where first step is instruction of a suit happens to be where facts finding
is done, then, the instructor judge fits the files and various witnessings
and investigations done, to see if the suit can continue, or if it's a
no-charge, or if charges can't reasonably pass if they are presented to the
ruling judges.
Therefore, despite the fact that procedural incidents can delay a suit a
lot -specially when some "offers" are presented to the judge in order to
avoid a suit or when instructor judge thinks impossible to get along without
more investigations-, it's quite difficult in France to hold a ruling onto
only "form" rather than to the facts and merits of an action.
Here, we see that rather than going to the merits and hearing witnesses, the
judge fails to be able to keep on because form is'nt correctly
transmissible.
roger
ptsc <pt...@my-deja.com> a écrit dans le message :
p25kssch6a4jj4mve...@4ax.com...
ladayla
Yes. We referred to the suit always as the FAIR suit. I have a long
newspaper article about it if any of you folks want it, I'll send it to
you. The reason behind "Stansfield vs. Starkey" was that there were at
least ( to my certain knowledge) 500 of us who made up the Class. We,
most of us were brand new out of the church, and were floundering around
trying to get some sort of life together. We were not well organized,
and some of the members were out-of-towners. Many of the Class members'
names are on the Suppressive Person Declare list, others on the Enemies
list. Altogether, there probably more that a thousand of us.We selected
a Steering Commitee headed up by Valerie and Fred Stansfield, Hana and
Jerry Whitfield, and Mary Marin and Frankie Freedman. They met with the
lawyers and like that, and reported to the Class at monthly meetings. We
pledged donations and did all the things we were told we should do. And
yet, we could not get the courts to accept our suit. RICO was added late
on the chain because by that time we had been so intimidated, so
harrassed, treated so outrageously by the church that we had much
evidence of racketeering coming out from people such as Homer Schomer
and etc., and we had the declarations gathered.
It should have happened.
There was no one strong enuff to push it thru. The lawyers proved inept.